Protecting the “record” – that is, the documents and evidence before the court – is important both at the trial and appellate court levels as a case can rise or fall on the record created.  In the context of a summary judgment — a preliminary motion to dispose of part or all of a case — protecting the record is even more important because a summary judgment record is limited to

  • the motion,
  • the response,
  • any admissible evidence, and
  • any court rulings on the motion and evidence. 


Written, and Included in the Record

The Supreme Court of Texas recently held that evidentiary rulings on summary judgment must be written and included in the record, thus discouraging the practice of some attorneys and intermediate appellate courts of relying on “implicit” evidentiary rulings in broad summary judgment orders.    

In Richard Seim, et al. v. Allstate Texas Lloyds, et al., Allstate-insured homeowners (the Seims) brought a claim on their homeowners’ policy against Allstate for alleged storm damage.  The claim was denied when Allstate’s property investigator found no damage attributable to wind or hail (covered damages).  The Seims sued Allstate claiming breach of contract and extra-contractual claims/damages.  Allstate filed a motion for summary judgment, and seven days before the hearing, the Seims filed a response but attached no summary judgment evidence in opposition to Allstate’s motion.  The only “evidence” the Seims filed was attached to an amended response filed the day of the hearing, without leave of court.  That “evidence” included two expert reports (unverified) and an affidavit (lacking a notary’s signature) — all from the same professional engineer claiming that the Seims’ property damage was caused by a windstorm.

At the summary judgment hearing, Allstate raised several objections to the reports and affidavit and presented the court with separate written orders on the summary judgment evidence and motion.  The trial court signed the order on the motion but made no rulings and signed no order as to the evidentiary objections.  However, the signed summary judgment order contained the statement that “all competent summary judgment evidence” was considered.  The intermediate appellate court upheld the summary judgment in favor of Allstate, concluding that the trial court must have considered the late-filed “evidence,” but found it to be  “incompetent” as none of it was authenticated or verified, thus making an “implicit” ruling in the absence of an express one.


Implicit vs. Explicit

The Texas Supreme Court, in considering the summary judgment record before it, first noted there was a split of authority among the intermediate appellate courts on whether summary judgment evidentiary rulings could be “implicit” or had to be explicit (i.e., reduced to writing).  It held that the better, more consistent practice required explicit, written evidentiary rulings on summary judgment evidence.  Accordingly, in a per curiam opinion issued on June 29, 2018, it reversed Allstate’s summary judgment and remanded the case back to the intermediate appellate court. 

Going forward, when objecting to summary judgment evidence filed by your opponent in Texas, ensure the ruling is in writing, so that all parties (and appellate courts) know what evidence was properly before the trial court and what part(s) of the summary judgment record were considered.  

By Published On: August 8, 2018Categories: AppellateTags:


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Jonathan M. Spigel is a Shareholder and member of the Cowles and Thompson Tort Litigation Practice Group.