Fieldturf USA, Inc. and Altech, Inc. v. Pleasant Grove Independent School District

Supreme Court of Texas

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No. 20-0507

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FieldTurf USA, Inc. and Altech, Inc.,

Petitioners,

v.

Pleasant Grove Independent School District,

Respondent

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On Petition for Review from the

Court of Appeals for the Sixth District of Texas

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Argued November 30, 2021

JUSTICE LEHRMANN delivered the opinion of the Court.

The primary issue in this case, involving a school district’s

breach-of-warranty claims against a general contractor and an artificial-

field-turf manufacturer, is whether a trial court’s on-the-record, oral

ruling sustaining an objection to summary judgment evidence suffices

to strike the evidence from the summary judgment record when the

ruling is not reduced to a written order. We hold that it does. We further

hold that the court of appeals both erroneously reversed the trial court’s

summary judgment in favor of the contractor and improperly remanded

the claims against the turf manufacturer for a new trial without

addressing the merits of the issues on appeal that, if sustained, could

result in rendition of judgment for the manufacturer. Accordingly, we

reverse the court of appeals’ judgment in part, reinstate the trial court’s

summary judgment in favor of the contractor, and remand to the court

of appeals to consider issues it did not reach.

I. Background

In 2008, Pleasant Grove Independent School District contracted

with Altech, Inc. for the construction of a new high-school football

stadium. The District independently obtained bids from several

synthetic-field-turf manufacturers and, in accordance with its

architect’s recommendation, selected the Prestige XM-60 turf system—

composed of a synthetic fiber known as Duraspine—manufactured by

FieldTurf USA, Inc. According to the District, FieldTurf had

represented that its product was more durable than its competitors’ and

that the field would last ten to twelve years. Altech subcontracted with

Sports Constructors, Inc. to install the turf, and Sports Constructors

purchased the turf from FieldTurf and installed it. The stadium was

substantially completed on October 16, 2009, and the District paid

Altech for all work performed and took possession of the field.

FieldTurf provided an eight-year manufacturer’s limited

warranty stating in pertinent part:

FIELDTURF warrants that if Prestige XM-60 . . .

synthetic turf proves to be defective in material or

workmanship, resulting in a loss of pile height greater than

50%, during normal and ordinary use of the

Product . . . within 8 years from the date of completion of

installation, FIELDTURF will, at FIELDTURF’S option,

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either repair or replace the affected area without charge, to

the extent required to meet the warranty period (but no

cash refunds will be made). . . . This warranty is limited to

the remedies of repair or replacement, which shall

constitute the exclusive remedies available under this

warranty, and all other remedies or recourses which might

otherwise be available are hereby waived by the Buyer.

FieldTurf expressly “disclaim[ed] all other warranties of any kind,

expressed or implied, in fact or in law, including but not limited to, the

implied warranties of merchantability or fitness for a particular

purpose.” (Emphasis removed).

For its part, Altech warranted in its general contract with the

District that “the Work will be free from defects not inherent in the

quality required or permitted, and that the Work will conform to the

requirements of the Contract Documents.” One of those documents

listed the specifications for the synthetic turf system, which included:

The synthetic turf system shall meet the following shock

absorption criteria when combined with the shock

absorbency pad beneath the system:

a. G-Max Rating Range (upon installation) 80-120

ASTM F355

b. G-Max Rating Range (Ultimate) 100-140

ASTM F355

c. Field surface shall maintain a G-Max rating within the

limits of the Ultimate G-max range listed above

throughout the life of the synthetic turf system

warranty. 1

1 G-Max testing measures the shock-absorbing properties of playing

surfaces. Standard F355, established by ASTM International, is a common

3

According to District personnel, they first noticed issues with field

degradation in the spring of 2014. In July, the District notified

FieldTurf of those issues, including problems with the field’s seams and

degradation of the gold fiber lettering in each end zone compared to the

adjacent black fiber. FieldTurf representative Ross Whitting inspected

the field in August and repaired a loose seam. During the inspection,

Whitting reportedly told District representative Steven Shatto that

FieldTurf had “multiple fields that are failing” and that it was replacing

some but not others. FieldTurf representative Todd Bresee inspected

the field on September 22 and prepared an internal evaluation report—

which was not shared with the District—in which he concluded that the

field was “showing signs of accelerated wear in . . . all fiber colors in the

area of the field in-between the numbers,” as well as “large amounts of

broken fiber on the surface.” He rated much of the green fiber (the

majority of the fiber on the playing field) as being in poor or fair

condition, the white fiber (the end-zone boundary lines and markings on

the playing field) as being in poor or fair condition, the fiber at the center

logo as being in poor or fair condition, and the black fiber (making up

the inlaid soccer lines) as being in fair or good condition. According to

Shatto, Bresee stated during the inspection that the field was in bad

shape and that the District was “on the right track” by insisting the field

be replaced.

The day after Bresee’s site visit, Shatto emailed FieldTurf

representative Julie Paquin, reiterating his concern that the field had

industry-standard test method for measuring impact attenuation. See

https://www.astm.org/f0355-16e01.html.

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significantly degraded and stating his hope “that FieldTurf will look at

our field as a total failure and replace it under full warranty[.]” Paquin

replied that FieldTurf would communicate a “plan of action” once the

report was prepared and reviewed by the senior leadership team. Over

the next few months, Shatto sent Paquin monthly emails requesting an

update on field replacement.

On January 13, 2015, FieldTurf informed the District via email

that, based on the evaluation, FieldTurf had found the field to be in

“fair/good” condition. Specifically, FieldTurf concluded that the field

was “showing some signs of fiber degradation” but was “not exhibiting

any playability or hazardous concerns.” FieldTurf proposed conducting

a LayMor Scrape, which involved removing a thin top layer of infill 2 to

expose more turf fiber, removing excess infill, and completing “any

minor inlaid repairs needed.” FieldTurf also proposed revisiting the

field in the next nine to twelve months “to monitor if there are any

deviations and to discuss the field options moving forward.”

The next day, the District’s superintendent sent FieldTurf a letter

rejecting its proposed action as an inadequate solution to the ongoing

degradation of the field. The letter included a demand that FieldTurf

replace the field “with a new installed surface meeting specifications

equal to or greater than the original specified products.” 3 FieldTurf

responded on February 12, reiterating its conclusion that the field was

2“Infill” is the black crumb-rubber and sand mixture that fills in the

spaces between the fibers to provide stability.

3 The District also requested replacement of an adjacent indoor practice

field composed of the same turf system. That field is not at issue in this suit.

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“not at the point of replacement” and that the observed fiber degradation

was “predominately a problem of appearance.” FieldTurf again

recommended a LayMor Scrape as “the best action at this time.”

The District hired a consultant, Roland Kunkel, to assess the

field. Kunkel reviewed the District’s documents and inspected the field

in October 2015, concluding that, based on the field’s condition, the only

viable solution was to replace it. Ultimately, in May 2016, the District

hired another field supplier to replace the field for $348,050.

Meanwhile, in September 2015, the District sued FieldTurf and

Altech, bringing claims for breach of contract and breach of warranty

against both defendants and a fraud claim against FieldTurf. 4 The

District initially alleged that Altech breached its promise to provide turf

materials that were free from defects, and the District subsequently

amended its petition to further allege that the field had “exceeded

acceptable shock absorption criteria as measured by G-Max testing.” As

to FieldTurf, the District asserted that FieldTurf had breached both its

express warranty that the field would be free from defects in materials

and workmanship for eight years and its implied warranty that the field

was fit for its intended purpose. The District also complained that

FieldTurf failed to replace the field as the warranty required despite

several requests that it do so. On the fraud claim, the District alleged

that: it relied on FieldTurf’s representations regarding the properties,

qualities, and performance characteristics of the Duraspine fiber in

selecting the Prestige XM-60 turf system; FieldTurf knew or should have

4 The District also sued Sports Constructors but later nonsuited the

claims against it.

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known that the representations were false and that the materials were

defective and would prematurely wear down; and FieldTurf continued

to knowingly misrepresent that the product was defect-free in

responding to the District’s numerous requests that the field be

replaced.

Altech filed a traditional and no-evidence motion for summary

judgment, arguing that it played no role in selecting the allegedly

defective turf product—the District chose the Prestige XM-60 and

approved it as being compliant with the construction specifications—

and that Altech made no guarantee or warranty that the product would

be free from inherent defects or other defects permitted by the contract

documents. The District responded that the contract did not exempt

Altech from liability for inherent defects and that the contract expressly

held Altech responsible for the acts of any downstream contractors. And

the District argued that the field did not conform to the contract

documents for the additional reason that it failed to maintain a G-Max

rating less than 140 throughout its first eight years. In support of this

assertion, the District attached to its summary judgment response a

report from Bounce Diagnostics dated March 3, 2016 (the G-Max report),

indicating an average field G-Max rating of 166.5 and individual results

between 143.6 and 188.4, all exceeding the contractually mandated

maximum of 140. The District also referenced Kunkel’s expert report,

in which he opined that the turf system failed to meet contract

specifications, as evidenced in part by “the G-Max testing . . . performed

on 3/03/2016 by Bounce Diagnostics.”

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In reply, Altech objected to the G-Max report on the grounds that

(1) it failed to document that a proper testing device was utilized or that

the device was calibrated and (2) the “authenticity of the G-Max report

has not been established.” Altech further noted that the District did not

assert a claim premised on “a G-Max issue” until March 2017, well after

the FieldTurf product was removed from the stadium, and that Altech

had thus been denied the opportunity to conduct its own test. The

District filed a surreply, arguing that the testing device had been

correctly calibrated and that the G-Max report was properly

authenticated.

At the hearing on Altech’s summary judgment motion, the parties

presented additional argument regarding the G-Max report’s

authenticity and resulting admissibility as summary judgment

evidence. At the conclusion of the argument, the trial judge orally

stated, “I’m . . . going to sustain [Altech’s] objection and Altech’s motion

for summary judgment is granted.” The trial court subsequently signed

a written order granting the summary judgment motion and dismissing

the District’s claims against Altech with prejudice. The order did not

reference the G-Max report, nor did the trial court sign any other written

order sustaining Altech’s objection to the report.

FieldTurf moved for partial summary judgment on all claims

except the claim for breach of express warranty. FieldTurf contended

the District’s contract claim was meritless because no contract existed

between those two parties. As to the implied-warranty claims, FieldTurf

asserted that its express limited warranty disclaimed all other

warranties. And FieldTurf argued the District’s fraud claims failed for

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a variety of reasons, including the independent-injury rule, the absence

of any actionable misrepresentations, and the lack of a duty to disclose

for purposes of any alleged fraudulent inducement by omission. After a

hearing and supplemental briefing on the fraud claims, the trial court

granted FieldTurf’s motion and dismissed all claims against it except

the claim for breach of express warranty, which was tried to a jury.

The jury returned a verdict in favor of the District and found that

the District was entitled to $175,000 in damages—in the form of “[t]he

difference at the time and place of acceptance between the value of the

goods accepted and the value they would have had if they had been as

warranted”—resulting from FieldTurf’s failure to comply with the

warranty. The trial court rendered judgment on the jury’s verdict,

awarding the District $175,000 in actual damages, plus pre- and post-

judgment interest. FieldTurf moved for judgment notwithstanding the

verdict, the District moved for a new trial, and the trial court denied

both motions.

On appeal, the District argued that the trial court’s order

granting Altech summary judgment on the District’s claim for breach of

the G-Max warranty should be reversed because (1) Altech’s motion was

facially defective and (2) the evidence raised a fact issue as to whether

Altech breached that warranty. 5 The District also sought reversal of the

trial court’s summary judgment for FieldTurf on the District’s fraud

claims and argued that the trial court improperly instructed the jury as

5 The District did not complain about the trial court’s summary

judgment with respect to the breach-of-warranty claim premised on Altech’s

alleged failure to provide a defect-free field.

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to the measure of damages on the warranty claim against FieldTurf.

The District requested that the court of appeals remand for a new trial

on the G-Max warranty claim against Altech and on the fraud and

express-warranty claims against FieldTurf. FieldTurf cross-appealed,

arguing that it was entitled to rendition of a take-nothing judgment

because (1) the evidence conclusively showed the field did not qualify for

warranty coverage; (2) the District’s exclusive remedy under the

warranty was repair or replacement; (3) the Uniform Commercial Code’s

exception allowing recovery of monetary damages despite a warranty’s

exclusive-remedy provision was neither pleaded nor proved; (4) as a

matter of law, the District failed to provide FieldTurf the required

opportunity to cure; and (5) the District presented no evidence of its

damages under the measure authorized by the UCC and submitted to

the jury.

The court of appeals reversed the summary judgment for Altech

as to the G-Max warranty claim, holding that Altech’s motion was not

facially defective but that the G-Max report raises a fact issue on that

claim. 634 S.W.3d 84, 92–95 (Tex. App.—Texarkana 2020). The court

of appeals acknowledged that the trial court had sustained Altech’s

objection to the report on the record but held that “unless the trial

court’s order is reduced to writing, signed by the trial court, and entered

of record,” “the objected-to evidence remains a part of the summary-

judgment proof.” Id. at 94–95. As to FieldTurf, the court of appeals

affirmed the trial court’s partial summary judgment on the District’s

fraud claims. Id. at 99–100. The court did not address any of FieldTurf’s

arguments that it was entitled to rendition of judgment on the express-

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warranty claim or the District’s assertions of charge error with respect

to the damages instruction. Instead, the court summarily concluded

that “a remand for new trial [in the interest of justice] is the appropriate

remedy, because the trial court’s erroneous [summary judgment]

regarding Altech limited to some degree the evidence of fault presented

to the jury, and therefore the more prudent course of action is to restore

the parties to the status quo at the time of the summary-judgment

rulings and redo matters from that point forward.” Id. at 101 (citing

TEX. R. APP. P. 43.3(b)).

Altech and FieldTurf petitioned this Court for review. Altech

seeks reinstatement of the summary judgment in its favor, while

FieldTurf argues that the court of appeals’ remand without first

addressing FieldTurf’s rendition issues was improper regardless of

whether the summary judgment for Altech was correctly reversed. 6 The

District did not file a cross-petition; accordingly, the portion of the court

of appeals’ judgment affirming summary judgment for FieldTurf on the

District’s fraud claims is final, and we do not consider it. TEX. R. APP.

P. 53.1 (“A party who seeks to alter the court of appeals’ judgment must

file a petition for review.”).

6 FieldTurf also joins Altech in arguing that the court of appeals

erroneously reversed summary judgment for Altech, providing an additional

reason the court should have addressed FieldTurf’s issues on appeal before

remanding for a new trial.

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II. Analysis

A. Remand for New Trial as to FieldTurf

As a general matter, we have consistently held that when

multiple grounds for reversal of a trial court’s judgment are presented,

courts of appeals should “first address issues that would require

rendition” and thus should consider those issues before ordering a

remand. Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 201–02

(Tex. 2003) (citations omitted). However, even when rendition would

otherwise be warranted, our rules of appellate procedure allow

discretion for a remand when “the interests of justice require” it. TEX.

R. APP. P. 43.3(b). We have said that the “most compelling case” for such

a remand “is where we overrule existing precedents on which the losing

party relied at trial.” Carowest Land, Ltd. v. City of New Braunfels, 615

S.W.3d 156, 158–59 (Tex. 2020) (citation omitted); see also Transp. Ins.

Co. v. Moriel, 879 S.W.2d 10, 13, 26 (Tex. 1994) (remanding where the

Court’s opinion provided a “substantial clarification” of the law).

Another circumstance meriting a remand in the interest of

justice, and the one relied on by the court of appeals here, is when the

trial court’s error prevented full development and presentation of the

evidence. Mobil Oil Corp. v. Frederick, 621 S.W.2d 595, 596 (Tex. 1981);

see also Tex. Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., 561

S.W.3d 263, 280 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“As

the entire trial proceedings were premised on erroneous summary

judgment orders, the more prudent course of action is to restore the

parties to the status quo at the time of the summary judgment rulings

and begin anew.”). But a remand for that reason must be supported by

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the record, Jackson v. Ewton, 411 S.W.2d 715, 718–19 (Tex. 1967), and

we find no such support in this record. The court of appeals provided no

explanation, and we discern none, for its conclusion that the trial court’s

grant of summary judgment for Altech, even if erroneous, affected

development or presentation of the evidence at trial on the District’s

remaining claim against FieldTurf.

The District does not defend the court of appeals’ reasoning,

arguing only that the trial court’s error in instructing the jury on the

measure of damages required a remand irrespective of the merits of

FieldTurf’s appellate issues. But the court of appeals addressed neither

party’s issues on appeal, and we express no opinion on their viability.

We agree with FieldTurf that the case must be remanded to the court of

appeals to address the merits of the parties’ appellate issues in the first

instance.

B. Summary Judgment for Altech

In partially reversing the trial court’s summary judgment for

Altech, the court of appeals held that the G-Max report created a fact

issue as to whether Altech breached its warranty that the field would

not exceed a G-Max rating of 140 throughout its first eight years. 634

S.W.3d at 94–95. As noted, the court of appeals held that the G-Max

report remained in the summary judgment record, despite the trial

court’s express oral ruling sustaining Altech’s written objection to the

report, because that ruling was never reduced to writing. Id. Altech

argues that the court of appeals erred in requiring a written order and

discounting the trial court’s on-the-record oral ruling, while the District

maintains that allowing any consideration of the reporter’s record on

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summary judgment review would amount to “a major revision to

summary judgment and appellate procedure.” For the reasons

discussed below, we agree with Altech and hold that the court of appeals

erred in considering and relying on the G-Max report to reverse the trial

court’s summary judgment. 7

It is well settled that while “[t]he same evidentiary standards that

apply in trials also control the admissibility of evidence in summary-

judgment proceedings,” “the rules of error preservation also apply.”

Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163–64 (Tex. 2018). Thus,

to complain on appeal about defects in the form of summary judgment

evidence, a party must both timely object and secure a ruling from the

trial court on the objection. Id. at 164; see TEX. R. CIV. P. 166a(f) (stating

that a defect in the form of summary judgment evidence provides no

“grounds for reversal unless specifically pointed out by objection by an

opposing party with opportunity, but refusal, to amend”). Without both

an objection and a ruling, the complained-of evidence remains part of

the summary judgment record and should be considered by the court of

appeals in reviewing the trial court’s judgment. Seim, 551 S.W.3d at

166; TEX. R. APP. P. 33.1(a) (stating that preservation of a complaint for

appellate review requires that the record show both (1) the complaint

7 Altech and FieldTurf argue that the District waived the argument that

a written order on Altech’s objection to the G-Max report was required by

failing to raise it until the reply brief in the court of appeals. The District

responds that it had no reason to raise the issue until Altech and FieldTurf

argued in their appellees’ briefs that the report could not be considered despite

the absence of a written order to that effect. Because we disagree with the

District that a written order was required, we need not address whether the

issue was waived.

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was made to the trial court by a timely request, objection, or motion and

(2) the court expressly or implicitly ruled, or refused to rule, on the

request or objection).

In Seim, we explained that before Rule 33.1 was amended in 1997

to allow for an “implicit” ruling, “it was ‘well settled’ that trial courts

must expressly rule on objections in writing for error to be preserved.”

551 S.W.3d at 165 (citation omitted). The amendment led to a conflict

among the courts of appeals regarding whether a trial court may

“implicitly” rule on an objection to summary judgment evidence merely

by granting the summary judgment motion. Id. at 164. Confirming that

a ruling may be implied only if “the implication was ‘clear,’” we held in

Seim that an order granting a party’s motion for summary judgment

does not in itself clearly imply a ruling sustaining the party’s objections

to summary judgment evidence, at least where “sustaining the

objections was not necessary for the trial court to grant summary

judgment.” Id. at 166 (citing In re Z.L.T., 124 S.W.3d 163, 165 (Tex.

2003)).

The District argues that while Seim “opened up the possibility

that a written order could implicitly constitute [a ruling sustaining an

objection to evidence] where the only way the ruling could have been

reached is by necessarily sustaining [the] objection,” it did not “suggest

that summary judgment review was now opened up to include rulings

on reporter’s transcripts.” Of course, Seim addressed only the issue

presented in that case, but we were careful to note in presenting the

facts that the trial court had “neither signed the [proposed] order

sustaining [the party’s] objections nor otherwise ruled on them.” Id. at

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163 (emphasis added). And our conclusion that the objected-to evidence

remained in the record was premised on the observation that “nothing

in this record serves as a clearly implied ruling by the trial court on [the]

objections.” Id. at 166 (emphasis added). By contrast, a trial court’s on-

the-record, unequivocal oral ruling on an objection to specific evidence

could hardly be more “clear.”

Several courts of appeals have held as much, concluding that

where the record shows the trial court heard argument and documented

its express rulings on the pertinent objections in the reporter’s record,

the rulings need not be reduced to writing to satisfy Rule 33.1. E.g.,

Birnbaum v. Atwell, No. 01-14-00556-CV, 2015 WL 4967057, at *4 (Tex.

App.—Houston [1st Dist.] Aug. 20, 2015, pet. denied); Columbia Rio

Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 395–96 (Tex. App.—Corpus

Christi 2000, no pet.) (holding that the absence of a written order

overruling objections to summary judgment evidence was unnecessary

to preserve error where the reporter’s record of the summary judgment

hearing revealed that the trial court explicitly overruled the objections). 8

8 See also Ordonez v. Solorio, 480 S.W.3d 56, 63 (Tex. App.—El Paso

2015, no pet.) (“Failure to obtain written rulings on objections to summary

judgment evidence waives the issue, unless . . . something in the record

reflect[s] that the trial court ruled on the objections.”); Kothmann v. Cook,

No. 07-05-00335-CV, 2007 WL 1075171, at *3 (Tex. App.—Amarillo Apr. 11,

2007, no pet.) (holding that where a hearing has been held on the motion, and

the trial court has clearly and unequivocally sustained the objection, the

objected-to evidence does not form part of the summary judgment evidence);

Rogers v. Cont’l Airlines, Inc., 41 S.W.3d 196, 200 (Tex. App.—Houston [14th

Dist.] 2001, no pet.) (“A party objecting to the competency of summary

judgment proof must obtain a ruling on its objection or obtain a written order

signed by the trial judge and entered of record, or the objection is waived and

the proof remains a part of the summary judgment record.” (emphasis added)).

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We agree with the reasoning of these decisions. A trial court’s on-the-

record, unequivocal oral ruling on an objection to summary judgment

evidence qualifies as a ruling under Texas Rule of Appellate

Procedure 33.1, regardless of whether it is reduced to writing.

We do not view this holding as a significant shift regarding

consideration of a reporter’s record in reviewing a summary judgment

on appeal. Under our procedural rules, oral testimony may not be

received at the summary judgment hearing. TEX. R. CIV. P. 166a(c). A

motion for summary judgment must be in writing, and “[i]ssues not

expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.” Id.;

see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677

(Tex. 1979) (holding that under Rule 166a(c), “both the reasons for the

summary judgment and the objections to it must be in writing and

before the trial judge at the hearing”). Because issues, grounds, and

testimony in support of and in opposition to summary judgment may not

be presented orally, a reporter’s record of such a hearing is generally

unnecessary for appellate purposes. McConnell v. Southside Indep. Sch.

Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993); see also Schneider Nat’l

Carriers, Inc. v. Bates, 147 S.W.3d 264, 291 n.141 (Tex. 2004) (holding

that the trial court did not err in denying a party’s request for a court

reporter to transcribe the summary judgment hearing). 9

9 By the same token, appellate courts do not consult the reporter’s

record of a summary judgment hearing to determine the trial court’s grounds,

if any, for its ruling on a summary judgment motion. See Gonzales v.

Thorndale Coop. Gin & Grain Co., 578 S.W.3d 655, 657–58 (Tex. App.—

Houston [14th Dist.] 2019, no pet.).

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Our holding today does not alter that general principle. As a

practical matter, sometimes summary judgment hearings are

transcribed, and sometimes they are not; the best practice for a party

objecting to summary judgment evidence is to secure a written order on

the objection from the trial court. But if no such order is issued, and the

reporter’s record of the hearing reveals an unequivocal oral ruling on the

objection, that ruling is sufficient for error-preservation purposes.

Here, Altech objected in writing to the G-Max report on

authenticity and other grounds, and the District was given an

opportunity to supplement the report before the summary judgment

hearing. As noted, the parties presented additional argument on the

objection at the hearing. The trial court then stated, “I’m . . . going to

sustain your objection and Altech’s motion for summary judgment is

granted.” No further written order was required, and, contrary to the

court of appeals’ conclusion, the G-Max report did not “remain[] a part

of the summary-judgment proof.” 634 S.W.3d at 94–95. 10 Accordingly,

the court of appeals erred in relying on the report to conclude that a

10 Altech alternatively argues that because the report is “wholly

unauthenticated,” it cannot serve as summary judgment evidence regardless

of whether Altech preserved error under Rule 33.1. We need not reach this

argument, but we note that the District responds by arguing, in part, that “the

report was not unauthenticated.” To the extent the District now argues that

the trial court erred in sustaining Altech’s objection to the report, the District

made no such argument in the court of appeals—in either its opening brief or

its reply brief. Instead, it argued only that the G-Max report remained a part

of the summary judgment record due to the absence of a written order. We will

not consider whether Altech’s objection to the report was improperly sustained

when the court of appeals was given no opportunity to do so. See In re K.A.F.,

160 S.W.3d 923, 928 (Tex. 2005).

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genuine issue of material fact existed as to whether the turf’s G-Max

ratings exceeded those required by Altech’s warranty.

The District alternatively argues that even if the G-Max report is

not considered, the court of appeals’ judgment may nevertheless be

affirmed because the report was cumulative of other evidence attached

to Altech’s own summary judgment motion that created a fact issue on

the G-Max warranty claim. See Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215–16 (Tex. 2003) (to be entitled to summary

judgment under Rule 166a(c), the movant must show that no genuine

issue of material fact exists and that it is entitled to judgment as a

matter of law). Specifically, the District argues that the same fact

reflected in the G-Max report—that the field exceeded permissible

shock-absorption levels—was also reflected in Kunkel’s expert report,

which was attached as an exhibit to Altech’s motion. We disagree.

Kunkel opined in his report that G-Max testing of the District’s

field “indicat[ed] values exceeding the permissible levels as set forth in

the relevant standards and guidelines, such as ASTM, STC, FIFA, EN

etc.” The contract between Altech and the District required that the turf

fall within a specific G-Max rating range over the life of the warranty

(between 100 and 140), as measured in accordance with ASTM Standard

F355. Kunkel’s report generally references ASTM standards, but not a

particular standard, and is silent about the numerical result of any

G-Max testing. Although in reviewing a summary judgment we take as

true all evidence favorable to the nonmovant and indulge reasonable

inferences in the nonmovant’s favor, Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005), the inference the District would have

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us draw is not a reasonable one. Reading Kunkel’s report to indicate

that the field’s G-Max rating exceeded 140 as measured in accordance

with ASTM Standard F355 would be impermissible speculation.

Accordingly, we hold that Kunkel’s report does not create a fact issue as

to the District’s G-Max warranty claim and does not provide an

independent basis on which to affirm the court of appeals’ judgment.

III. Conclusion

The court of appeals erred in partially reversing the trial court’s

summary judgment for Altech and in remanding the breach-of-warranty

claims against FieldTurf for a new trial without addressing the merits

of FieldTurf’s and the District’s issues on appeal. Accordingly, we

reverse those portions of the court of appeals’ judgment, reinstate the

trial court’s summary judgment for Altech, and remand the case to the

court of appeals to consider unaddressed issues.

Debra H. Lehrmann

Justice

OPINION DELIVERED: March 4, 2022

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