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“New” Standards in Error Preservation

Tue, 11/20/2018 - 11:03 -- admin25

by Ryan D. Starbird

In 1997, Texas Rule of Appellate Procedure 33.1(a) was amended to state the trial court may rule on an objection “either expressly or implicitly.” Applying this alteration led to a divide among appellate courts over whether a trial court “implicitly” rules upon an objection to summary-judgment evidence by simply ruling on the summary-judgment motion itself. However, the Texas Supreme Court addressed this split of authority in Siem v. Allstate Texas Lloyds, No. 17-0488, 2018 WL 3189568 (Tex. June 29, 2018).

Before diving into the details, there are a few key procedural points to note. Generally, to preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion that was sufficiently specific, and the trial court: (1) ruled on the complaint; or (2) refused to rule, and the complaining party objected to the refusal. But, in the context of affidavits—which are frequently used as summary judgment evidence—certain defects may be raised for the first time on appeal.

Defects in affidavits fall into two categories: defects of substance or form. For preservation purposes, objections to “form” and “substance” are treated differently. Substantive defects cannot be waived; formal defects may be waived by failing to object and obtain a ruling, and if waived, the evidence is considered.

Defects are formal if the evidence is competent but inadmissible; they are substantive if the evidence is incompetent (i.e., legally insufficient, such as affidavits consisting of legal or factual conclusions). Formal defects may encompass a wide array of issues, including, for example: objections to hearsay; lack of foundation or personal knowledge; sham affidavits; statements of an interested witness that are not clear, positive, direct, or free from contradiction; best evidence, self-serving statements; and unsubstantiated opinions.

The Siem case arose out of a dispute over a homeowners’ insurance policy between the homeowners (the Siems) and their insurer (Allstate). Allstate moved for traditional and no-evidence summary judgment, and the Siems timely filed a response seven days before the hearing date; however, they failed to attach any evidence at that time. On the day of the summary-judgment hearing, the Siems filed an amended response with evidence, including expert reports and an affidavit from a professional engineer.

Allstate filed written objections to the engineer’s affidavit on multiple grounds and provided the trial court with two proposed orders—one granting summary judgment and the other sustaining the objections to the Siems’ evidence. The trial court granted Allstate’s summary judgment, signing an order reflecting that the court considered (among other things) all competent summary-judgement evidence. However, the court did not sign the order on Allstate’s evidentiary objections.

The Seim Court ultimately concluded Allstate’s objections concerned formal defects; thus, Allstate needed to both object and obtain a ruling to preserve its objections. Because there was no express ruling, the Court considered—and rejected—the argument that the trial court’s order granting summary judgment constituted an implicit ruling on the objections.

In forming its opinion, the Siem Court examined the divergent opinions among appellate courts, focusing on two cases from the Second Court of Appeals—in which that court held that by granting the movant’s motion for summary judgment, the trial court created an inference that it implicitly reviewed and overruled the evidentiary objections—and contrasting those opinions with cases out of the Fourth and Fourteenth Courts of Appeals.

The high court held that the Fourth and Fourteenth Courts of Appeals “have it right.” In different contexts, the Texas Supreme Court has previously recognized that an implicit ruling may be sufficient to present an issue for appellate review, but the record in Siem was devoid of a clearly implied ruling on Allstate’s objections. Indeed, even without the objections, the trial court could have granted summary judgment—a point Allstate actually argued in its briefing. As the Supreme Court asked rhetorically, “if sustaining the objections was not necessary for the trial court to grant summary judgment, how can the summary judgment ruling be an implication that the objections were sustained?”

Because Allstate did not obtain a ruling on its objections to the affidavit’s form, the court of appeals improperly disregarded it. Accordingly, the Court reversed and remanded the case to the court of appeals for further proceedings, setting new precedent in the process.

Ryan D. Starbird is an associate at Parsons McEntire McCleary PLLC. He can be reached at

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