# Harris Ex Rel. Harris v. Spires Council of Co-Owners

> Texas Court of Appeals, 1st District (Houston) · November 12, 1998 · 981 S.W.2d 892

URL: https://www.frixlaw.com/law-library/cases/9678802

## Case

- **Full name:** John HARRIS, by and Thorough His Attorney in Fact, David HARRIS, Appellant, v. THE SPIRES COUNCIL OF CO-OWNERS, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** November 12, 1998
- **Citations:** 981 S.W.2d 892; 1998 Tex. App. LEXIS 7107; 1998 WL 789066
- **Precedential status:** Published
- **Opinion:** Dissent by O'Connor
- **Judges:** O'Connor, Taft, Smith
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678802

## How later opinions describe it (automated extraction)

- holding that it is not necessary for the trial court to rule on an objection to summary judgment proof because the court implicitly does so when it rules on the motions
- finding that, by not obtaining a written ruling, a party waives objection to hearsay evidence in the summary-judgment record
- holding trial court implicitly sustained objections of movant and overruled those of nonmovant in granting summary judgment
- holding mov-ant-appellee waived form objection to affidavit by failing to obtain ruling from trial court
- holding hearsay in affidavit is defect of form

## Opinion text

O’CONNOR, Justice,
dissenting.
I dissent from the panel’s holding that the Spires Council of Co-Owners, as movant, waived its objections to the non-movant’s summary judgment evidence because it did not obtain a ruling on its objections. I believe that it was not necessary for the Spires to obtain a separate ruling on his objections. Cf. Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex.1997) (holding that a ruling granting one party’s motion, which was the opposite of the other party’s motion, “automatically” denied the other party’s motion).
The purpose of filing of objections to summary judgment evidence is to inform the trial *899 court why it should grant or refuse to grant the motion for summary judgment. If the trial court believes objections to either party’s summary judgment evidence are well-taken, the trial court will rule on the motion, not on the objections. When a trial court grants the motion for summary judgment, it necessarily sustains the objections filed by the movant and overrules those filed by the non-movant.
I recognize a number of cases from this and other courts of appeals have held that the objections to summary judgment procedure or evidence are waived if not overruled in the order granting the motion or in the summary judgment itself. I believe those eases are in error.
The requirement for a ruling on an objection to summary judgment evidence resurrects a procedure similar to one the Supreme Court rejected regarding requests for findings of fact. Under the procedure that predated Che rne Indus., Inc. v. Magallanes, 763 S.W.2d 768 (Tex.1989), a party was required to “present” a request for findings of fact and conclusions of law to the trial judge and obtain the judge’s signature on the request; if the party was unable to secure the judge’s signature on the request, the request for findings was waived. In Cheme, the Supreme Court reversed a long line of cases that held that filing the request for findings was not sufficient to preserve error, that the request must be presented to the trial court for a signature before error was preserved. Id. at 770 . The Court held that filing the request for findings was all that was required; requiring a party to present the request to the trial judge was “not justified by the plain language of the rule.” Id. Similarly, nothing in Texas Rule of Civil Procedure 166a requires the parties to secure a ruling on their objections to the summary judgment evidence.
If it was ever necessary to obtain a ruling on objections to summary judgment evidence (which I doubt 1 ), there is certainly no justification for it since the adoption of the new Texas Rules of Appellate Procedure. New Rule 33.1, which replaced former Rule 52, should make that quite clear. Rule 33.1 provides:
(a) In general. As prerequisite to presenting a complaint for appellate review, the record must show that:
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(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly. ...
Tex. R. App. P. 33.1(a)(l)-(2)(A) (emphasis added). By granting the motion for summary judgment, the trial court implicitly sustains the objections made by the movant and overrules those made by the non-movant.
Even former Rule of Appellate Procedure 52 did not require the movant to secure a ruling on its objection, only the non-movant was required to secure a ruling. The mov-ant, as the prevailing party on appeal, was exempt from the requirement because Rule 52 provided that:
It is ... necessary for the complaining party to secure a written ruling on objection to the other party’s motion, response, or evidence.
Tex. R. App. P. 52 (emphasis added) (rule repealed). Thus, the panel’s holding is at odds with both current Rule 33.1 and former Rule 52.
In summary, I believe it is not necessary for the trial court to rule on the movant’s objections to the motion for summary judgment. 2
. The Supreme Court issued the Salinas case in 1997, before the new Rules of Appellate Procedure were enacted, in September 1997. Thus, I do Not believe it was ever necessary to get a separate ruling on the objections.
. For the same reasons, I do not believe it is necessary for the non-movant to obtain a ruling on its objections to the movant's motion for summary judgment. A number of courts, including ours, have held it is necessary. See Washington *900 v. Tyler ISD, 932 S.W.2d 686, 689 (Tex.App.—Tyler 1996, n.w.h.); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 365 (Tex.App.—Houston [1st Dist.] 1994, writ denied); Fox Elec. Co. v. Tone Guard Sec., Inc., 861 S.W.2d 79, 81 (Tex.App.—Fort Worth 1993, no writ); Hopkins v. Highlands Ins. Co., 838 S.W.2d 819, 822 (Tex.App.—El Paso 1992, no writ); Williams v. Conroe ISD, 809 S.W.2d 954, 957 (Tex.App.—Beaumont 1991, no writ); Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719, 723 (Tex.App.—Dallas 1988, no writ).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678802. Public record. Not legal advice.