Rulings on Objections to Summary-Judgment Evidence: It May Not Be Too Late

You have returned to the office as the conquering hero. The court granted your summary-judgment motion, and the case is over. But you wake up in the middle of the night in a cold sweat: you forgot to ask the judge for a ruling on your objections to the other side's evidence. Now what? Are you going to be stuck dealing with all that evidence on appeal? Perhaps not. At least three appellate courts have held that the trial court can enter a written order on objections to summary-judgment evidence even after granting summary judgment.

Last week, I posted about the continuing split among Texas appellate courts regarding implicit rulings on summary-judgment evidence. If you don't want to rely on an implicit ruling, but the court has already ruled on the summary-judgment motion, it may not be too late to secure an explicit written ruling on your objections.

Three appellate courts (Dallas, Houston [14 District], and Waco) have now held that a written order on objections to summary-judgment evidence preserves error even if it was not signed until after the court granted summary judgment. The most recent decision is from the Waco court in Wolfe v. Devon Energy Production Co., 382 S.W.3d 434, 448 (Tex. App.—Waco 2012, pet. filed). The Waco court summarzed the prior decisions and noted that nothing in either the Rules of Civil Procedure or the Rules of Appellate Procedure specifies a deadline for a ruling on objections. Because the objections had been timely filed and the trial court issued its written order while it still had plenary power, the appellate court found that error was preserved. Although a petition for review has been filed, it does not appear that the timing of the ruling on the objections has been presented as an issue for the Supreme Court.

There are some important caveats. First, all three courts agree that the objections must have been timely filed. Therefore, these cases will not help if you forgot to make the objections until after summary judgment was granted. Second, the Dallas court noted that it was "troubled" by the timing of the order on the evidentiary objections and reiterated that the best practice would be to secure the order at the same time that the summary-judgment order is entered. Esty v. Beal Bank S.S.B., 298 S.W.2d 280, 295 (Tex. App.—Dallas 2009, no pet.). Third, the San Antonio court has refused to give effect to an order signed after summary judgment was granted, but that order was signed after the trial court lost plenary power. Rankin v. Union Pac. R. Co., 319 S.W.3d 58, 65 (Tex. App.—San Antonio 2010, no pet.). It is not clear what the San Antonio court would do with a written order signed after the summary judgment but before the trial court's plenary power expired.

In sum, while the entry of a written order after summary judgment has been granted is not ideal, it may be a good contingency plan if you timely file objections but forget to ask for a written ruling at the hearing. And requesting that written ruling is certainly a better option than trying to argue on appeal that the trial court implicitly granted your objections.

-- Rich Phillips, Thomspon & Knight