A Couple Developments in Preserving Evidentiary Errors in Summary Judgment Practice

by Ryan Philip Pitts, an associate in the appellate practice group of Haynes Boone, LLP’s Houston office.

This article lays out two recent developments in the preservation rules regarding challenges to summary judgment evidence. To understand them, quickly reciting a few basics helps. “The same evidentiary standards that apply in trials also control the admissibility of evidence in summary-judgment proceedings.”^[1]Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163 (Tex. 2018). A party must “[1] timely object and [2] secure a ruling from the trial court on the objection.”^[2]FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 837 (Tex. 2022). Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Civil Procedure 166a(f)^[3]Rule 166a(f) provides that “[d]efects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, … Continue reading apply. For the objecting party, absent an objection and a ruling,^[4]Evidentiary rulings may be implied in a trial court’s summary judgment decision, but only where they are “clear” and “necessary” to the result. Seim, 551 S.W.3d at 166; see also Wells Fargo … Continue reading “complained-of evidence remains part of the summary judgment record and should be considered by the court of appeals in reviewing the trial court’s judgment.”^[5]FieldTurf, 642 S.W.3d at 837. As to the evidence’s proponent, the trial court must have been informed of “the purposes for which the evidence was offered and the reasons why it was admissible.”^[6]Cmty. Initiatives, Inc. v. Chase Bank of Tex., 153 S.W.3d 270, 281 (Tex. App.—El Paso 2004, no pet.).

Recent decisions from the Texas Supreme Court offer clarity on two long-running issues related to this preservation standard.

• First, Browder v. Moree^[7]__ S.W.3d __, 2022 WL 2282669, at *1-2 (Tex. June 24, 2022) (per curiam). seemingly resolves a disagreement among the intermediate courts of appeals about whether—to preserve error for appellate review—a party must separately object to a trial court’s decision that sustains an opposing party’s objection to summary judgment evidence.
• Second, FieldTurf USA, Inc. v. Pleasant Grove Independent School District^[8]642 S.W.3d 829, 838 (Tex. 2022) (Lehrmann, J.). held that an on-the-record oral ruling on an objection to summary judgment evidence suffices as a “ruling” for preservation purposes, regardless of whether it is reduced to writing.

This article discusses the implications these decisions have for preserving error in summary judgment practice. It also briefly notes that, by reasoning and result, Browder and FieldTurf reflect the Texas Supreme Court’s broader movement toward common-sense preservation rules and deciding appeals on their merits whenever possible, practicable, and fair.

I. Browder: Parties need not object to an adverse ruling to preserve review.

In 1990, the Fifth Court of Appeals suggested in Brooks v. Sherry Lane National Bank that a party waives a challenge to excluded summary judgment evidence by failing to object to the adverse ruling.^[9]788 S.W.2d 874, 878 (Tex. App.—Dallas 1990, no writ). One should note that the evidence’s proponent in Brooks raised “no objection.” Id. It is unclear if the proponent asserted any basis for … Continue reading So came to be the “Brooks preservation rule,” as this article coins it. It requires as follows: “When a party fails to object to the trial court’s ruling that sustains an objection to his summary judgment evidence, he has not preserved the right to complain on appeal about the trial court’s ruling.”^[10]Montenegro v. Ocwen Loan Serv., LLC, 419 S.W.3d 561, 568 (Tex. App.—Amarillo 2013, pet. denied) (quoting Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.); Beinar v. Deegan, … Continue reading

Over the years, the Fifth Court has retained this rule, and the Seventh Court adopted it, too.^[11]See supra note 10. Some decisions of the First, Fourteenth, and Fourth Courts have also come somewhat close—in spirit if not application—to the Brooks preservation rule. See Dotson v. TPC Grp., … Continue reading But other courts, notably the Second Court, have expressly rejected Brooks’ rule, “We do not believe a party is required to object to the sustaining of an objection in order to complain of the sustaining of the objection on appeal; to the extent these decisions by our sister courts hold otherwise, we decline to follow them.”^[12]Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *2 n.4 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.).

As the Brooks preservation rule aged, however, the Fifth Court itself suggested some doubt about it. For example, in 2018, Justice Schenck noted as follows in applying the Brooks preservation rule: “We are aware that this holding has come under criticism recently. . . . Absent a decision from a higher court or this Court sitting en banc that is on point, this Court is bound by prior holdings of other panels of this Court.”^[13]Du Bois v. Martin Luther King, Jr., Fam. Clinic, No. 05-16-01460-CV, 2018 WL 1663787, at *4 (Tex. App.—Dallas Apr. 6, 2018, no pet.) (mem. op.); see also Fan Expo, LLC v. Nat’l Football League, … Continue reading

About four years later, that higher-court decision appears to have arrived in Browder v. Moree. A long line of decisions in the intermediate courts of appeals had held that a party who has requested a jury trial must nonetheless object after its denial to preserve error.^[14]In re P.N.T., 580 S.W.3d 331, 339 (Tex. App.—Houston [14th Dist.] 2019, pet. denied); In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no pet.); Addicks v. Sickel, No. 2-03-218-CV, 2005 … Continue reading The Texas Supreme Court, passing on the question per curiam, flatly said, “No.” A party need not object further after a jury request’s denial: “Browder did not need to renew that request or object to the court’s adverse ruling to preserve his complaint regarding the denial of a jury trial for appellate review.”^[15]Browder, 2022 WL 2282669, at *2.

In reaching this result, the Court employed broad language. “[N]either our procedural rules nor this Court’s decisions require a party that has obtained an adverse ruling from the trial court to take the further step of objecting to that ruling to preserve it for appellate review.”^[16]Id. at *1. This proposition squarely conflicts with the Brooks preservation rule, likely ushering the Brooks rule to a prompt exit from Texas jurisprudence.

And that makes very good sense. Texas Rule of Appellate Procedure 33.1 does not require a party to raise a complaint or objection, to request or obtain a ruling, and then to make yet another complaint or objection to an adverse ruling. It simply demands that “the complaint was made to the trial court by timely request, objection, or motion.”^[17]Tex. R. App. P. 33.1(a)(1). The Brooks rule does not enjoy support in the appellate rules, at least their modern iterations, and Browder has offered the jurisprudential footing to jettison it.

Now, a world without Brooks would not mean a party could say nothing and preserve error as to excluded summary judgment evidence. Rule 33.1 remains in force. As the Third Court aptly explained, “[o]nce a challenge is raised to the admissibility of evidence, the proponent of the evidence carries the burden of establishing admissibility and must provide the specific purpose for which the evidence is offered and the reasons why the evidence is admissible.”^[18]Tex. Prop. & Cas. Ins. Guar. Ass’n ex rel. Petrosurance Cas. Co. v. Brooks, No. 03-10-00428-CV, 2011 WL 3890405, at *8 (Tex. App.—Austin Aug. 31, 2011, no pet.) (mem. op.); see also Villejo … Continue reading The burden to set forth the basis for the admissibility of evidence still lies on its proponent.^[19]See, e.g., Brown v. CB & I, Inc., No. 09-12-00521-CV, 2014 WL 172413, at *3 (Tex. App.—Beaumont Jan. 16, 2014, no pet.) (mem. op.) (“By failing to object in writing to the motion to strike in … Continue reading Absent such a basis being in the record, one might worry of the looming specter of waiver.

Where has Browder left us? The Brooks preservation rule seems on the way out, which means parties would not need to object post hoc to an order that sustains objections to summary judgment evidence. But that will not relieve the evidence’s proponent from having articulated the basis for its admission to preserve appellate review.

II. FieldTurf: Unequivocal oral rulings suffice to meet the “ruled on” requirement under Rule 33.1(a)(2).

FieldTurf offers clarity on when and whether oral rulings on summary judgment evidence suffice for preservation purposes. It involved a dispute over the quality and alleged degradation of synthetic turf in a newly built high-school football stadium.^[20]642 S.W.3d at 831-34. The Pleasant Grove Independent School District sued two parties, the contractor who built the stadium and the turf’s manufacturer.^[21]Id. at 833. The contractor moved for traditional and no-evidence summary judgment, and the District responded with evidence allegedly showing a dispute of material fact.^[22]Id. at 833-34. The contractor replied and objected to the evidence.^[23]Id. In a hearing, the trial court sustained the objection and granted summary judgment by oral ruling.^[24]Id. It later issued a written order that granted summary judgment, but which did not reference the sustained objection.^[25]Id.  The District appealed, arguing that the objected-to evidence showed a dispute of material fact for trial.

The Sixth Court of Appeals reversed the contractor’s summary judgment, finding a dispute of material fact based on the objected-to evidence. It considered the objected-to evidence because the evidentiary ruling was not “reduced to writing, signed by the trial court, and entered of record.”^[26]Id. at 835 (quoting Pleasant Grove Indep. Sch. Dist. v. FieldTurf USA, Inc., 634 S.W.3d 84, 94–95 (Tex. App.—Texarkana 2020, pet. granted). In applying this rule, the Sixth Court reasoned that “a written ruling entered into the record is necessary so that a court of appeals reviewing the case can determine what evidence the trial court considered in reaching its summary-judgment decision.”^[27]FieldTurf, 634 S.W.3d at 95 n.6.

The Texas Supreme Court disagreed, holding that an “unequivocal oral ruling on an objection to summary judgment evidence qualifies as a ruling under Texas Rule of Appellate Procedure 33.1, regardless of whether it is reduced to writing.”^[28]FieldTurf, 642 S.W.3d at 838. It cautioned that “the best practice” remains “to secure a written order on the objection from the trial court”—as the reporter’s record must “reveal[] an unequivocal oral ruling on the objection.”^[29]Id. at 839.

The upshot is that while a favorable evidentiary ruling might remain in place during appeal if the trial court has not issued a written order memorializing it, a party should consider requesting a written order that sets forth objection-by-objection rulings.^[30]It is important to obtain a ruling on each specific evidentiary objection. See, e.g., Balderas as Next Friend of Balderas v. Zurich Am. Ins. Co., No. 14-20-00262-CV, 2022 WL 1257041, at *5 (Tex. … Continue reading After all, as most of us have likely experienced, the record often does not track how one remembers an in-court proceeding. Statements may sound different to the ear—by tone and context and expression—than they read to an appellate court in the cold text of a written record.

III. Parting Thoughts

Browder and FieldTurf reflect a broader trend by the Texas Supreme Court toward “common-sense”^[31]Browder, 2022 WL 2282669, at *1. preservation rules and less rigid appellate procedures.^[32]This general trend can be observed in a range of procedural decisions over the previous decade. See, e.g., Chen v. Razberi Techs., Inc., No. 21-0499, 2022 WL 1696321, at *1 (Tex. May 23, 2022) (a … Continue reading The Court is “loath to turn away a meritorious claim due to waiver; where the party has clearly and timely registered its objection,” waiver arguments become “particularly unavailing.”^[33]Nath v. Texas Children’s Hosp., 446 S.W.3d 355, 365 (Tex. 2014); e.g., Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015) (declining to find an argument waived); Morton v. … Continue reading However, that sentiment remains counterbalanced by the important role that preservation rules continue to serve, such as conserving judicial resources, fostering the finality of decisions, preventing undue surprise to litigants, and providing the appellate courts the benefit of a trial court’s ruling.^[34]USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 510 (Tex. 2018); Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014); Ferguson v. Tex. Dep’t of Pub. Safety, 629 S.W.3d 903, 904 (Tex. 2021) … Continue reading While preservation rules may trend toward the common sense of fairness—as Browder and FieldTurf certainly reflect—they will remain a cornerstone of our judicial system, where the record is made in the trial courts and reviewed above.