As a practicing attorney at Chamberlain Hrdlicka in Houston, the focus of my practice is two-fold: I represent companies and individuals in civil litigation. I also do extensive work (of both a litigation and transactional nature) in the Admiralty, Maritime, and Energy fields.
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This post moves away from the sea and focuses on the Texas Rules of Civil Procedure and Evidence. Specifically, if a party moves for summary judgment and the opposite party responds with objectionable evidence (such as hearsay or conclusory statements in an affidavit), does the moving party have to obtain a ruling on the objection to preserve error for appeal?
On June 29, 2018, the Supreme Court of Texas (“SCTX”) issued a per curiam opinion in Seim v. Allstate Texas Lloyds, et al, 02-16-00050, ____ S.W.3d ____ (Tex. 2018) wherein SCTX made clear that parties must obtain rulings on objections to summary judgment evidence from a trial court before the trial court decides a motion for summary judgment.
As the case lacks citations, I will cite to the page numbers on the SCTX opinion, which may be viewed or downloaded (depending on your browser settings) here:
Background & Relevant Facts
By way of background, Richard and Linda Seim sued Allstate and Lisa Scott (an Allstate claims adjuster) for a breach of the duty of good faith and fair dealing relating to Allstate’s denial of a storm damage claim. 02-16-00050, ____ S.W.3d ____ at p. 1 (Tex. 2018). The basis for Allstate’s denial was an inspection by Ms. Scott, wherein Ms. Scott apparently noted water damage in the home but did not find wind or hail damage (which were necessary to trigger coverage under the policy in question). Id. at p. 1.
Allstate eventually moved for summary judgment. The Seims responded in writing, but did not file their summary judgment evidence seven days before the hearing date (as required by the Texas Rules of Civil Procedure. Id. at pp. 1-2. The Seims then filed a response providing the evidence on the day of the hearing, without leave of the trial court. Id. at p. 2.
Allstate objected to the evidence on multiple grounds, and even provided an order sustaining the objections to the Seims’ evidence. The trial court granted the MSJ, but did not rule on the objections. Id. at p. 3. The Seims appealed to the Fort Worth Court of Appeals, which upheld the trial court’s decision but also held that the Seims summary judgment evidence was “incompetent” because the expert reports provided “were not verified or authenticated,” and the expert affidavit only attested to the truth of the statements in the affidavit, not to the statements made in the expert reports. Id. at p. 3. These are defects in the form of the evidence, not the substance of it. After the Seims requested an en banc rehearing, the Court of Appeals issued a new decision wherein it still upheld the trial court’s ruling, but clarified its prior statements on the evidence issues. The Seims then appealed to the SCTX.
The Supreme Court's Analysis
The SCTX begins its analysis by stating the same evidence rules govern the evidence evaluated both a trial as well as a summary judgment determination, and that likewise the rules of error preservation also apply equally at trial and in summary judgment proceedings. Id. at p. 4, citing to United Blood Servs. V. Longoria, 938 S.W.2d 29, 30 (Tex,. 1997)(per curiam) and Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 317-18 (Tex. 2012)(per curiam). The Court also held substantive defects in summary judgment evidence can be raised for the first time on appeal, but if there is a defect in the form of the evidence, it must be raised and ruled upon at trial, or it is waived. Id. at 4, citing to Tex. R. Civ. P. 166a(f).
Seim involved SCTX resolving a split among the intermediate Courts of Appeals related to an amendment to Texas Rule of Appellate Procedure 33.1. Without getting into too much of the divergent case lines, the Second Court of Appeals read the amendment to allow for implicit or explicit rulings on summary judgment evidence to preserve error for appeal. The Fourth and Fourteenth Courts of Appeals held that any rulings, in order to preserve error, must be made prior to resolution of the motion for summary judgment, and should be done in writing to avoid waiver. 02-16-00050, ____ S.W.3d ____ at pp. 6-7.
Because Allstate didn’t obtain written rulings on the form of the evidence provided by the Seims, the SCTX held it was wrong for the Fort Worth Court of Appeals to disregard the affidavit. Thus, SCTX reversed the court of appeals and remanded the case to Fort Worth so that the Court of Appeals could reconsider the waiver issue and whether Allstate was entitled to summary judgment even if the affidavit was admissible.