07.06.18

This week The Supreme Court of Texas issued no opinions or grants. However, on June 29, 2018, The Supreme Court of Texas released various opinions. One opinion is of particular interest for those seeking summary judgment under Rule 166a.

In Richard Seim and Linda Seim v. Allstate Texas Lloyds and Lisa Scott, the Seims held a home insurance policy through Allstate and sued when Allstate refused to pay a claim for property damage after a storm. Allstate filed a motion for summary judgment contending that the Seims had no evidence that they suffered a covered loss because the policy only covered hail and wind damage-not the water damage noted in the Allstate adjuster's inspection report. The Seims filed their response to the motion for summary judgment seven days before the hearing as required by Rule 166a(c) but did not attach any evidence to the response. Instead, a mere day before the hearing, the Seims submitted an amended response to which they attached two expert reports and an affidavit. Allstate raised objections both to the timeliness and competence of the Seims' summary judgment evidence.

Although the trial court granted summary judgment for Allstate, the court did not specify grounds and did not clarify whether it considered the expert reports as evidence. The court of appeals affirmed the trial court's judgment and clarified that the only summary judgment evidence offered by the Seims was incompetent because the reports were neither verified nor authenticated and the affidavit contained no explanation for how to storm caused the damage to the Seims' property.

On appeal, the Texas Supreme Court first noted that under Rule 33.1(a) objections to defects in form must be objected to and ruled upon by the trial court in order to preserve error. Additionally, although the Court noted that "an implicit ruling may be sufficient," the Court clarified that the record must serve as a clearly implied ruling in order to preserve error. In this case, the Court held (1) that the record did not serve "as a clearly implied ruling by the trial court on Allstate's objections," (2) Allstate's objections to the summary judgment evidence in this case amounted to challenges to defects in form, and (3) Allstate failed to obtain a ruling on its objections and therefore failed to preserve its objections for appeal. For these reasons, the Court reversed and remanded.