law-affidavit-objections-form vs. objections as to substance
AFFIDAVIT OBJECTIONS AS TO FORM VS. SUBSTANCE
ERROR PRESERVATION REQUIREMENTS
For purposes of preservation of error, an appellate court treats a party's objections to defects
in the "form" and the "substance" of an affidavit differently. A defect in the substance of an
affidavit is not waived by failure to obtain a ruling from the trial court on the objection and may
be raised for the first time on appeal. McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.
-Houston [14th Dist.] 2003, pet. denied). Substantive defects are those that leave the evidence
legally insufficient. See Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 666 (Tex.2010)
(plurality op.) (affidavit not based on personal knowledge is legally insufficient); Kerlin v. Arias,
274 S.W.3d 666, 668 (Tex.2008) (per curiam) (affidavit showing no basis for personal
knowledge is legally insufficient); Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App.-Houston [1st
Dist.] 1998, no pet.) (substantive defects are never waived because the evidence is
incompetent). A defect in the form of an affidavit, however, must be objected to in the trial court
and the opposing party must have the opportunity to amend the affidavit. See TEX.R. CIV. P.
166a(f). The failure to obtain a ruling from the trial court on an objection to the form of an
affidavit waives the objection. McMahan, 108 S.W.3d at 498.
SOURCE: 334 S.W.3d 371 (2011)05-09-00856-CV.
There is a split of authority regarding whether,
pursuant to appellate rule of procedure 33.1(a)(2)(A), an objection to
summary judgment evidence can be preserved by an implicit ruling in the
absence of a written, signed order. See Stewart v. Sanmina Tex. L.P.,
156 S.W.3d 198, 206 (Tex. App.-Dallas 2005, no pet.). This Court has
determined the “better practice is for the trial court to disclose, in
writing, its rulings on all evidence before the time it enters the order
granting or denying summary judgment.” Hogan v. J. Higgins Trucking,
Inc., 197 S.W.3d, 879, 883 (Tex. App.-Dallas 2006, no pet.) (quoting
Broadnax v. Kroger Tex., L.P., 05-04-01306-CV, 2005 WL 2031783, at *1-2
(Tex. App.-Dallas 2005, no pet.)). On this record, we decline to
conclude that the trial court implicitly ruled on appellees' objections
to Hewitt's affidavit.
An objection that an affidavit contains hearsay is an objection
to the form of the affidavit. Stone v. Midland Multifamily Equity REIT,
334 S.W.3d 371, 374 (Tex. App.-Dallas 2011, no pet.). A defect in the
form of an affidavit must be objected to in the trial court and the
opposing party must have the opportunity to amend the affidavit. See
Tex. R. Civ. P. 166a(f); See Midland Multifamily Equity REIT, 334 S.W.3d
at 374; Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas 2004, pet.
denied). The failure to obtain a ruling on an objection to the form of
the affidavit waives the objection. Midland Multifamily Equity REIT, 334
S.W.3d at 374; see also S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d
849, 855 (Tex. App.-Dallas 2011, no pet.) (“Defects in the form of an
affidavit must be objected to, the opposing party must have the
opportunity to amend, and the trial court must rule on the objection;
otherwise, the objection is waived and the objected-to material is in
Unifund argues that Gellatly waived her objections to the Lutz and Kenney affidavits by failing to object
to them in the trial court. Unifund CCR Partners v. Gellatly (Tex.App.- Houston [1st Dist.] July 3, 2008)(Nuchia)
(credit card suit by assignee of card issuer against consumer, deemed admissions, sufficiency of summary judgment proof, objections to
affidavits, preservation or error)
(breach of contract and quantum meruit exclusive of each other)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia [pdf version here]
Before Justices Nuchia, Alcala and Hanks
01-07-00552-CV Unifund CCR Partners v. Sara Morgan Gellatly
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
“To constitute competent summary judgment evidence, affidavits must be made on personal
knowledge, set forth facts as would be admissible in evidence and show affirmatively that the affiant is
competent to testify to matters stated therein.” TEX. R. CIV. P. 166a(f). “A trial court can only consider
pleadings and proof on file at the time of the hearing, or filed after thehearing and before judgment with
the permission of the court.” Hussong v. Schwan’s Sales Enterprises, Inc., 896 S.W.2d 320, 323 (Tex.
App.—Houston [1st Dist.] 1995, no writ).
A party must object in writing and obtain an express or implied ruling from the trial court to preserve a
complaint about the form of summary judgment evidence. TEX. R. CIV. P. 166a(f); TEX. R. APP. P. 33.1
(a)(2)(A); Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Rizkallah v. Conner, 952
S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ). “A trial court’s ruling on an objection to
summary judgment evidence is not implicit in its ruling on the motion for summary judgment.” Delfino v.
Perry Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (quoting Well Solutions,
Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.—San Antonio 2000, no pet.)).
However, an objection that an affidavit states only a legal conclusion is an objection to a substantive
defect, which may be raised for the first time on appeal. Green v. Indust. Speciality Contractors, Inc., 1
S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Rizkallah, 952 S.W.2d at 587.
In response to Unifund’s motion for summary judgment, Gellatly objected to the Lutz affidavit on
hearsay grounds and to both the Lutz and Kenney affidavits based on lack of personal knowledge.
Specifically, Gellatly argues that, as Unifund’s custodian of the records, Lutz cannot testify about the
creation of business records that predate Unifund’s acquisition of them. She also argues, “Kenney
does not recite that the affidavit is made on personal knowledge.” These are objections as to form. See
Vaughn, 792 S.W.2d at 945 (holding that failure to affirmatively show that affiant had personal
knowledge is defect in form and must be preserved in trial court); see also Green, 1 S.W.3d at 130 (“An
objection that an affidavit contains statements of opinion or hearsay is an objection to the form of the
affidavit.”). Nothing in the record shows that the trial court ruled on Gellatly’s objections before
rendering judgment. Therefore, her form objections regarding the Lutz and Kenney affidavits are
waived. We will, however, consider Gellatly’s arguments that the affidavits are conclusory.
Anderson’s objections to the County’s summary-judgment evidence include hearsay, hearsay upon
hearsay, self-serving, irrelevant, based on assumptions, subjective opinions of/not competent evidence
from an interested witness, authentication, verification, failure to state that facts are true and correct,
uncertified copies of documents, internally inconsistent, not under oath, not an affidavit, statement
unsigned, witness not identified, not competent, and lack of personal knowledge. These are all
objections to form on which Anderson did not obtain a ruling. See Tri-Steel Structures, Inc. v. Baptist
Found. of Tex., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied) (“A defect is
substantive if the summary judgment proof is incompetent; it is formal if the summary judgment proof is
competent, but inadmissible.”). They are not preserved for appeal. See Choctaw Props., 127 S.W.
3d at 241. 08‑0664 LIMESTONE COUNTY, TEXAS v. LAURI J. ANDERSON; from Limestone County; 10th district
(10-07-00174-CV, ___ SW3d ___, 07‑02‑08)(employment law, termination of employment, sex discrimination,
retaliation claim, adverse employment action, causal nexus, filing deadline for administrative complaint under Texas
Labor Code, exhaustion of administrative remedies)
Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
Texas Caselaw Topics Pages | Texas Opinions homepage |