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 |
Adequacy of Summary Judgment Evidence
Specificity At the outset, we note the extremely cursory nature of Crown's responses to Short's no-evidence
motion for summary judgment. When presenting summary judgment proof, a party must specifically identify
the supporting proof on file that it seeks to have considered by the trial court. See Arredondo v. Rodriguez,
198 S.W.3d 236, 238 (Tex. App.-San Antonio 2006, no pet.) (citing Boeker v. Syptak, 916 S.W.2d 59, 61
(Tex. App.-Houston [1st Dist.] 1996, no writ)). Further, "[a]ttaching entire documents and depositions to a
motion for summary judgment or to a response and referencing them only generally does not relieve the
party of pointing out to the trial court where in the documents the issues set forth in the motion or response
are raised." See Arredondo, 198 S.W.3d at 238-39 (citing Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.-
Houston [1st Dist.] 1996, no writ)).
Crown's first response to Short's no-evidence motion simply states that "the evidence indicates" that fact
questions exist on the three issues raised. The response refers to one piece of summary judgment evidence,
an affidavit by Crown's managing member. Several purchase agreements and spreadsheets are attached to
the affidavit as exhibits, but no explanation is given as to how the attached documents raise fact issues. One
document, a lengthy payment history purporting to show Short's breach of the contract, is indecipherable
because of the numerous payment codes listed next to the various amounts and dates. No key describing
the meaning of these codes is given, and neither the affidavit nor the response clarifies why, for instance,
two large transactions are listed on the spreadsheet after the date on which Short supposedly made his last
payment. Another of the exhibits attached to the affidavit, described in the affidavit only as "documentation
showing the transfer of ownership to [Crown]" and discussed no further, is nothing more than what appears
to be a spreadsheet containing no titles or column headings and simply listing information about Short and
the car at issue, along with various undefined dates and dollar amounts and the name of the original
financing company.
Crown Asset Management LLC v. Short (Tex.App.- Houston [1st Dist.] Apr. 16, 2009)(Hanks)
(MV note suit fails on summary judgment, inadequate documentation attached, declaratory judgment on car
ownership reversed, UDJA fees reversed, no judicial admission as to MV title)
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER
JUDGMENT:
Opinion by Justice Hanks
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00042-CV
Crown Asset Management, LLC v. Christopher B. Short
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle
Crown's second response and Crown's own traditional summary judgment motion are only slightly less
vague, particularly on the element of breach. Additionally, between the three pleadings, approximately 500
pages of documents are either attached or incorporated by reference. None of the pleadings gives any
indication as to how the summary judgment evidence creates a fact issue on the breach element. Neither this
court nor the trial court is required to wade through a voluminous record to marshal a party's summary
judgment proof. See Arredondo, 198 S.W.3d at 238.
Accordingly, the trial court did not err in rendering summary judgment for Short on Crown's breach-of-
contract claim. We overrule Crown's first point of error.
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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