law-sj-evidence | conclusory statements in affidavits | no evidence summary judgment | affidavit admissibility |
summary judgment documents exhibits not attached | hearsay objection | best knowledge and belief qualification |

Objections to Summary Judgment Evidence

Defects in the form of affidavits or attachments offered as summary judgment evidence — rather than defects in
substance — are not grounds for reversal unless the complaining party obtains a ruling from the trial court on its
objection. See Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200 (Tex. App.-Houston [14th Dist.] 2001, no
pet.); Hicks v. Humble Oil & Ref. Co., 970 S.W.2d 90, 93 (Tex. App.-Houston [14th Dist.] 1998, pet. denied); see
also Tex. R. Civ. P. 166a(f).
Eix and Moradi asserted objections to Chase's summary judgment evidence but did not obtain a ruling from the trial
court. Therefore, Eix and Moradi waived all objections to the form of the summary judgment evidence. See Rogers,
41 S.W.3d at 200; Hicks, 970 S.W.2d at 93.
We therefore examine the objections that Eix and Moradi assert on appeal to determine whether they are
objections to form or substance. Under their first issue, Eix and Moradi assert that the trial court erred in overruling
their objection to the document attached to Betz's affidavit on the grounds that Betz inaccurately states that the
attached document was in the original amount of $50,000 while the document does not state an original amount of
$50,000. In addition, Eix and Moradi assert that Betz's affidavit is unreliable because she incorrectly states that the
title of the attached document is "Business Revolving Credit Application and Agreement." Eix and Moradi further
complain that Betz's testimony as an interested witness could not have been readily controverted. See Tex. R. Civ.
P. 166a(c). All of these objections are objections to form rather than substance, and thus Eix and Moradi waived
these objections by failing to obtain a ruling on them from the trial court.[1] See Blancett v. Lagniappe Ventures,
Inc., 177 S.W.3d 584, 589 (Tex. App.-Houston [1st Dist.] 2005, no pet.); Rogers, 41 S.W.3d at 200; Hicks, 970 S.W.
2d at 93.  Eix, Inc. v. JP Morgan Chase Bank (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Boyce)
(commercial debt suit, personal guaranty, summary judgment evidence, affidavit by interested witness)AFFIRMED:
Opinion by Justice William Boyce
Before Justices Frost, Brown and Boyce
14-08-00042-CV Eix, Inc., and Saeed Moradi v. JP Morgan Chase Bank, N.A.
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey  


Beard contends that the trial court erred in granting Endeavor and Tepee’s motion for summary judgment because
the judgment was based on incompetent summary judgment evidence.  Relying on documentary evidence including
Beard’s letters to Endeavor and Tepee, Endeavor’s letter forwarding revenue processing information to Beard, and
the production and sale information gathered from the gas lease, Endeavor and Tepee sought summary
judgment.  Beard complains that Russ’s affidavit, authenticating these documents, is not competent summary
judgment evidence.  Beard objected to the summary judgment proof on many grounds in the trial court, but he
failed to obtain a ruling on any of his objections.

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 party must object in writing and obtain an express or implied ruling from the trial court to preserve for
appellate review a complaint about the form of summary judgment evidence.  Id.; Tex. R. App. P. 33.1(a)(2)(A);
Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Green v. Indus. Specialty
Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist] 1999, no pet.); Rizkallah v. Conner, 952 S.W.
2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ).  An objection to a substantive defect, such as a
conclusory affidavit, may be raised for the first time on appeal.  Green, 1 S.W.3d at 30; Rizkallah, 952 S.W.2d at
587.  

A trial court’s ruling on a motion for summary judgment does not imply a ruling on an objection to summary
judgment evidence.  Delfino v. Perry Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(quoting Well Solutions v. Stafford, 32 S.W.3d 313, 317 (Tex. App.—San Antonio 2000, no pet.).

Beard complains of at least nine different defects in Russ’s affidavit.  Beard contends that Russ does not state the
capacity in which he is employed by Endeavor, does not sign the affidavit in a representative capacity for
Endeavor, and testifies about matters performed by Tepee but does not state how he is qualified to testify on
matters involving Tepee, all of which make his testimony inadmissible hearsay.  These are all defects in form that
are waived for a lack of a ruling.  See Rizkallah, 952 S.W.2d at 585–86 (holding that lack of personal knowledge
and lack of competence or qualifications to testify are defects in form); Wilson v. Gen. Motors Acceptance Corp.,
897 S.W.2d 818, 821–22 (Tex. App.—Houston [1st Dist.] 1994, no writ).  Beard further contends that, because
Russ fails to state that he is the custodian of any business records or how he is otherwise qualified to authenticate
and testify about any Endeavor or Tepee documents, the documents attached to the affidavit are all hearsay and
inadmissible.  This is also a defect in form, waived by Beard’s failure to obtain a ruling.  See id.

Beard further objects to the substance of Russ’s affidavit, which may be raised for the first time on appeal.  
Specifically, Beard complains that Russ makes the conclusory statements that Beard “has been paid the proper
royalty amount” and that Endeavor and Tepee “had at all times complied with their obligations . . . regarding the
payment of the royalties that have been made the basis of this suit.”  As Beard identifies no other specific
conclusory statements, we consider only these two.  See Tex. R. App. P. 38.1(h) (“The brief must contain a clear
and concise argument for the contentions made, with appropriate citations to authorities and the record.”);
Churchill v. Mayo, 224 S.W.3d 340, 347 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (holding that where
appellant failed to identify any specific conclusory statements, there was nothing for the court to review).

A conclusory statement is one that does not provide the underlying facts to support the conclusion and is not
proper as summary judgment proof.  Rizkallah, 952 S.W.2d at 587.  First, Beard complains that Russ’s statement
that Beard has been “paid” the proper royalty amount is unsubstantiated because Beard has not been “paid”
anything, as he returned the second royalty check that Endeavor and Tepee sent him.  Russ explains, however,
the method of royalty calculation based on the division order and the production spreadsheets attached to the
affidavit, and that Beard was “paid” accordingly by a check that Beard admits that he received in one of his letters
attached to the affidavit.  Beard also complains of Russ’s statement that Endeavor and Tepee had “at all times
complied with their obligations regarding the payment or royalties that have been made the basis of this suit.”  
Russ states that this conclusion is based on the documents attached to his affidavit.  The underlying facts in the
documents attached to the affidavit showing the amount of production, the amount of Beard’s royalty interest, and
the amount that Endeavor and Tepee tendered to Beard support this conclusion.  

The statements in Russ’s affidavit that Beard’s claims are conclusory are properly based on factual evidence
provided in the summary judgment record, and we hold that Beard’s objections do not provide a basis for reversal
of the summary judgment.  See id.; Green, 1 S.W.3d at 130.

Beard v. Endeavor Natural Gas, LP (Tex.App.- Houston [1st Dist.] Dec. 19, 2008)(Bland)
(oil and gas law, royalties, declaratory judgment, attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Justice Bland  
Before Justices Jennings, Hanks and Bland)
01-08-00180-CV  Joseph Mitchell Beard v. Endeavor Natural Gas, L.P., and Tepee Petroleum Company
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock

Finally, Beard objects to the letter from Endeavor to Beard dated April 19, attached to Russ’s affidavit, which
provided Beard production data and the formula for the calculation of his royalty interest.  Beard contends that he
never received the April 19 letter.  However, the April 19 letter is not necessary to uphold the trial court’s summary
judgment in favor of Endeavor and Tepee.  Even without the April 19 letter, we hold that sufficient evidence exists
to sustain summary judgment that Endeavor and Tepee paid Beard the proper royalty amount under the division
order.  See Rizkallah, 952 S.W.2d at 588 (holding that an affidavit that contains statements that are incompetent as
summary judgment proof may support a motion for summary judgment if the remaining statements contain sufficient
factual information to sustain the movant’s burden of proof).

Viewing Grant's summary judgment evidence in the light most favorable to Grant, Grant offers no evidence of LEI's
intent to falsify the statements which LEI provided Grant in order to prevent Grant from obtaining his bonus. Also,
Grant offers no evidence that LEI did not exercise reasonable care or competence when it provided Grant with the
periodic statements or that Grant justifiably relied on these statements. In his affidavit, Grant made the conclusory
statement that he relied on LEI. However, in his deposition testimony, Grant testified that he did not rely upon
anything that Laughlin or Thyssen provided him when calculating his bonuses from the 1999 contract. Grant also
testified that LEI did not carelessly, knowingly, or recklessly falsify the periodic statements which they provided him
with in order to calculate his bonus. See Farroux v. Denny's Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.--Houston
[1st Dist.] 1997, no pet.) (reasoning that, when only affirmative evidence of claim is subsequent affidavit which
contradicts earlier deposition testimony without explanation for change of testimony, summary judgment is proper
because affidavit "presents merely a 'sham' fact issue"). Accordingly, we hold that the trial court did not err in
granting LEI's no-evidence summary judgment motions on Grant's claims for fraud and negligent misrepresentation.
Grant v. Laughlin Environmental, Inc. (Tex.App.- Houston [1st Dist.] Dec. 18, 2008)(Jennings)
(summary judgment evidence, conclusory affidavit, breach of contract, quantum meruit, fraud, negligent
misrepresentation)


Defects in the form of affidavits or attachments offered as summary judgment evidence — rather than defects in
substance — are not grounds for reversal unless the complaining party obtains a ruling from the trial court on its
objection. See Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200 (Tex. App.-Houston [14th Dist.] 2001, no
pet.); Hicks v. Humble Oil & Ref. Co., 970 S.W.2d 90, 93 (Tex. App.-Houston [14th Dist.] 1998, pet. denied); see
also Tex. R. Civ. P. 166a(f).

Eix and Moradi asserted objections to Chase's summary judgment evidence but did not obtain a ruling from the trial
court. Therefore, Eix and Moradi waived all objections to the form of the summary judgment evidence. See Rogers,
41 S.W.3d at 200; Hicks, 970 S.W.2d at 93.

We therefore examine the objections that Eix and Moradi assert on appeal to determine whether they are
objections to form or substance. Under their first issue, Eix and Moradi assert that the trial court erred in overruling
their objection to the document attached to Betz's affidavit on the grounds that Betz inaccurately states that the
attached document was in the original amount of $50,000 while the document does not state an original amount of
$50,000. In addition, Eix and Moradi assert that Betz's affidavit is unreliable because she incorrectly states that the
title of the attached document is "Business Revolving Credit Application and Agreement." Eix and Moradi further
complain that Betz's testimony as an interested witness could not have been readily controverted. See Tex. R. Civ.
P. 166a(c). All of these objections are objections to form rather than substance, and thus Eix and Moradi waived
these objections by failing to obtain a ruling on them from the trial court.[1] See Blancett v. Lagniappe Ventures,
Inc., 177 S.W.3d 584, 589 (Tex. App.-Houston [1st Dist.] 2005, no pet.); Rogers, 41 S.W.3d at 200; Hicks, 970 S.W.
2d at 93.


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