Choctaw Properties, L.L.C. v. Aledo I.S.D.

Citation127 S.W.3d 235
Decision Date17 December 2003
Docket NumberNo. 10-01-229-CV.,10-01-229-CV.
PartiesCHOCTAW PROPERTIES, L.L.C., Everett B. Frazier and Jerry W. Campbell, Appellants, v. ALEDO I.S.D., and Allen Norman, Appellees.
CourtTexas Court of Appeals
127 S.W.3d 235
CHOCTAW PROPERTIES, L.L.C., Everett B. Frazier and Jerry W. Campbell, Appellants,
v.
ALEDO I.S.D., and Allen Norman, Appellees.
No. 10-01-229-CV.
Court of Appeals of Texas, Waco.
December 17, 2003.

[127 S.W.3d 238]

Donald A. Ferrill and Michael L. Forman, Brown, Pruitt, Peterson & Wambsganss, P.C., Fort Worth, for Appellant/Relator.

Thomas P. Brandt, Stephen D. Henninger and Nellis G. Hooper, Fanning, Harper & Martinson, P.C., Dallas, for Appellee/Respondent.

Before Chief Justice GRAY, and Justice VANCE (former Chief Justice DAVIS not participating)*.

OPINION

BILL VANCE, Justice.


Aledo Independent School District denied Kenneth and Schuyler Cunningham's children admittance to its schools because the Cunninghams' residence lies in another school district. The Cunninghams sued Choctaw Properties, L.L.C. which sold them the property and two of Choctaw's

127 S.W.3d 239

owners, Everett B. Frazier and Jerry W. Campbell, for misrepresenting the school-district status of the property. Choctaw, Frazier, and Campbell (collectively "Appellants") filed a third-party petition against Aledo, former superintendent Allen Norman, and former Choctaw agent Beau Duncan for declaratory relief, breach of contract, and contribution and indemnity. The trial court granted summary judgment motions filed by Aledo and Norman. Appellants contend in four issues that the court erred by: (1) refusing to rule on their objections to Aledo's and Norman's summary judgment evidence; (2) implicitly overruling their objections, if the court made implicit rulings; (3) granting Aledo's and Norman's first summary judgment motion; and (4) granting Aledo's and Norman's second summary judgment motion.

BACKGROUND

Choctaw developed the Hills of Bear Creek subdivision in 1996. Choctaw agent Beau Duncan obtained a letter from Norman, then Aledo's superintendent, in April 1996 stating that the subdivision lies within Aledo's boundaries.1 The Cunninghams purchased a lot in this subdivision from Choctaw in August 1996. They allegedly purchased this lot because Duncan told them that it lay within Aledo's boundaries. The Cunninghams built a residence on the lot, but their children were denied admittance to Aledo schools. The Cunninghams sued Appellants under various theories including misrepresentation of the school district in which their lot is located.

Appellants filed a third-party petition against Aledo, Norman, and Duncan: (1) seeking contribution and indemnity from Norman and Duncan under the common law, Chapters 32 and 33 of the Civil Practice and Remedies Code, and section 17.506 of the Deceptive Trade Practices-Consumer Protection Act ("DTPA"); (2) alleging that Aledo is estopped from denying that the lot is within its boundaries and seeking a declaratory judgment to this effect; and (3) alleging that Aledo breached an agreement with Choctaw that children residing in the Hills of Bear Creek subdivision would attend Aledo schools.2

Aledo filed a plea to the jurisdiction which was denied. We affirmed this decision in a prior appeal. Aledo Indep. Sch. Dist. v. Choctaw Props., L.L.C., 17 S.W.3d 260 (Tex.App.-Waco 2000, no pet.).

Aledo and Norman filed a motion for summary judgment alleging nine different grounds under which they claimed entitlement to judgment as a matter of law. They supported this motion with: (1) affidavits from Duncan, Norman, and Kenneth Cunningham; (2) a letter written by Norman and attached to his affidavit as an exhibit; (3) excerpts from Duncan's deposition; and (4) a copy of section 11.06 of the Parker County Subdivision Regulations and Construction Standards.

127 S.W.3d 240

Appellants raised numerous objections to the affidavits attached to the summary judgment motion. Appellants responded in some detail that Aledo and Norman had failed to conclusively establish their entitlement to judgment on any of the grounds asserted. They supported their response with the affidavits of Donald Ferrill (one of their attorneys), Campbell, and Frazier.

Aledo and Norman then filed a second motion for summary judgment alleging seven additional grounds for summary judgment. To support the second motion, Aledo and Norman used the same summary judgment evidence previously tendered. In addition, they provided a plat showing school district boundaries for the area at issue and supporting documents.

Appellants responded with many of the same objections asserted in response to the first motion. They also objected to the documentary evidence attached to the second motion. They then responded in detail to the grounds asserted in the second motion, again concluding that Aledo and Norman had failed to conclusively establish their right to judgment. They supported their response with the affidavits of Campbell and Frazier (the same ones attached to their first response) and with excerpts from Duncan's deposition.

Aledo and Norman then filed a motion for leave to amend their summary judgment evidence in reply to some of Appellants' objections to the documentary evidence attached to their second motion. After hearing, the court granted this motion and gave Appellants twenty-one days to file any response to the amended evidence. Appellants did so, raising additional objections to this evidence.

Following a second hearing, the court signed an order granting both summary judgment motions without specifying the reasons and dismissed Appellants' third-party action against Aledo and Norman with prejudice. The court severed Appellants' third-party claims against Aledo and Norman from the remaining3 claims, and this appeal ensued.

OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE

Appellants contend in their first and second issues respectively that the court erred by failing to rule on their objections to Aledo's and Norman's summary judgment evidence or by implicitly overruling those objections. "To be considered by the trial or reviewing court, summary judgment evidence must be presented in a form that would be admissible at trial." Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex.App.-Houston [14th Dist.] 2000, no pet.); accord United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997); Columbia Rio Grande Regl. Hosp. v. Stover, 17 S.W.3d 387, 396 (Tex.App.-Corpus Christi 2000, no pet.). Thus, we address Appellants' evidentiary complaints before addressing the merits. See Ash v. Hack Branch Distribg. Co., 54 S.W.3d 401, 408 (Tex.App.-Waco 2001, pet. denied); Jensen Constr. Co. v. Dallas County, 920 S.W.2d 761, 769 (Tex. App.-Dallas 1996, writ denied).

IMPLICIT RULING

"[T]he granting of a summary-judgment motion does not necessarily provide an implicit ruling that either sustains or overrules objections to the summary-judgment evidence." Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex.App.-Waco

127 S.W.3d 241

2002, no pet.) (citing Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.-San Antonio 2000, no pet.)); accord Dolcefino v. Randolph, 19 S.W.3d 906, 926-27 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).

Aledo and Norman raised multiple grounds for summary judgment in their two motions. Appellants lodged numerous objections to Aledo's and Norman's summary judgment evidence. The court granted both motions without elaboration. We cannot imply a ruling on Appellants' objections from this record. See Allen, 97 S.W.3d at 663; Dolcefino, 19 S.W.3d at 926-27. Accordingly, we conclude that Appellants' second issue is without merit.

PRESERVATION

For preservation purposes, objections to "form" and "substance" are treated differently. Dailey v. Albertson's, Inc., 83 S.W.3d 222, 225 (Tex.App.-El Paso 2002, no pet.); Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160 (Tex.App.-Waco 1995, no writ). To preserve objections to defects of form for appellate review, the objecting party must obtain a ruling from the trial court, preferably in writing. See Allen, 97 S.W.3d at 663; Dolcefino, 19 S.W.3d at 926-27; see also Tex.R.App. P. 33.1(a)(2); Tex.R. Civ. P. 166a(f) ("Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend."). This ruling must be obtained at or before the court hears the summary judgment motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex.1993); accord Dolcefino, 19 S.W.3d at 926 (party should obtain ruling "at, before, or very near" the time the court decides the summary judgment motion). On the other hand, defects of substance can be raised for the first time on appeal. Dailey, 83 S.W.3d at 225; Ahumada, 992 S.W.2d at 562; Peerenboom, 910 S.W.2d at 160.

APPELLANTS' OBJECTIONS

Appellants raised the following categories of objections at trial to the form of Appellees' summary judgment proof: (1) affidavit of an interested witness which is not clear, positive, direct, credible, uncontradicted, or readily controvertible; (2) hearsay; and (3) lack of personal knowledge. See Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex.1990) (lack of personal knowledge); Crow v. Rockett Spec. Util. Dist., 17 S.W.3d 320, 324 (Tex.App.-Waco 2000, pet. denied) (affidavit of interested witness, hearsay, lack of personal knowledge); Ahumada, 992 S.W.2d at 562 (interested witness). Because Appellants did not obtain a ruling on their objections to these alleged defects of form, these objections have not been preserved for appellate review. See Allen, 97 S.W.3d at 663; Dolcefino, 19 S.W.3d at 926-27.

The remaining two categories of objections allege defects of substance: (1) lack of jurat;4 Laman v. Big Spring State Hosp., 970 S.W.2d 670, 672 (Tex.App.-Eastland 1998, pet. denied); State Bar of Tex. v. Tinning, 875 S.W.2d 403, 407 (Tex. App.-Corpus Christi 1994, writ denied); accord Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex.1970)...

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