Summary Judgment Evidence Must be on File at Time of Hearing–Implications in Family Cases

Ja-Lynn Kuo; JLKUO, PLLC; Subho Mullick; SM ER, PLC; Salima Amina Thobani; and SRG Consulting, LLC v. Regions Bank, 24-1039, October 10, 2025.

On appeal from Court of Appeals for the Fifth District of Texas

Synopsis

The Texas Supreme Court held that summary-judgment evidence need only be on file at the time of the hearing to be considered under Tex. R. Civ. P. 166a(c), even if not physically attached to the motion, and that the court of appeals erred by refusing to decide evidentiary challenges on forfeiture grounds when the parties agreed the evidence was on file. The Supreme Court reversed and remanded for the court of appeals to reach the merits of the petitioners’ evidentiary complaints.

Relevance to Family Law

Although this is a commercial-guaranty case, the ruling governs the procedural treatment of summary-judgment evidence across all civil litigation in Texas, including divorce property division, spousal maintenance, child-support and custody disputes where summary judgment is sought. The decision emphasizes that documentary proof relevant to valuation, business income, tax returns, attorney’s-fee affidavits, and condition-precedent issues may be considered if those documents are properly on file — even if they are not attached to the specific motion — and that appellate courts should address preserved evidentiary challenges on the merits rather than dismissing them on sua sponte forfeiture theories when the record demonstrates the evidence was on file.

Case Summary

Fact Summary

Regions Bank sued guarantors who signed guarantees securing loans used to build a Dallas medical facility; the district court granted summary judgment for the Bank on collection claims and attorney’s fees, and the guarantors appealed.

The dispositive procedural dispute concerned whether the documents the Bank relied on to secure summary judgment were “on file” for purposes of Rule 166a(c) when they were filed elsewhere in the docket but not physically attached to the Bank’s summary-judgment motion.

The court of appeals concluded, sua sponte, that certain issues were forfeited because the appellate record purportedly lacked those documents; both parties in the Supreme Court proceeding agreed the documents were on file and that the court of appeals should have addressed the merits.

Issues Decided

The Supreme Court decided whether the evidence supporting summary judgment was properly on file and, if so, whether the court of appeals erred in refusing to address petitioners’ evidentiary challenges on preservation grounds instead of reaching the merits. The Court also clarified the appropriate appellate response when there is uncertainty whether on-file documents were intended to support a particular motion.

Rules Applied

The Court applied Tex. R. Civ. P. 166a(c) and the principle that documentary evidence need not be physically attached to the summary-judgment motion so long as it is on file at the time of the hearing. The opinion cites and applies precedent including Enter. Leasing Co. of Hou. v. Barrios, State v. $3,774.28, Bertucci v. Watkins, Weeks Marine v. Garza, and recent decisions remanding unaddressed issues for appellate consideration (e.g., U.S. Polyco; Wasson Ints.). The opinion reinforces the appellate preference for deciding issues on the merits when reasonably possible.

Application

The Court reasoned that the documents at issue had been filed in the district court record and were referenced by pleadings and prior motions. Both parties conceded in the courts below and in this Court that the evidence was on file and properly part of the record. Under the Rule 166a(c) standard, physical attachment to the motion is not required. Where the court of appeals was uncertain about the applicability of on-file documents to the Bank’s summary-judgment motion, it should have sought clarification from the parties instead of raising forfeiture sua sponte. The Court therefore reversed the court of appeals and remanded with instructions that the appellate court address the petitioners’ unadjudicated second, third, and fourth issues on their merits.

Holding

The Supreme Court held that the documentary evidence relied upon to support summary judgment was properly on file for consideration under Tex. R. Civ. P. 166a(c) even though it was not physically attached to the Bank’s summary-judgment motion. The Court further held that the court of appeals erred by declining to reach the merits of the petitioners’ evidentiary challenges on procedural forfeiture grounds when the parties agreed the evidence was on file. Accordingly, the Supreme Court reversed the court of appeals’ judgment and remanded for the court of appeals to adjudicate the previously unaddressed issues on the merits.

Practical Application

For family-law litigators, this opinion removes a procedural hurdle that appellate courts might use to avoid deciding evidentiary challenges when summary-judgment evidence appears in the docket but not attached to a particular motion. In high-value divorce cases, contested business valuations, sequestration disputes, or attorney-fee claims where parties rely on exhibits previously filed in the case (tax returns, appraisals, forensic accounting reports, prior affidavits), this decision supports arguing that such exhibits are properly before the trial court and should be considered by an appellate court reviewing a summary judgment. Importantly, if a trial or appellate court expresses uncertainty about whether on-file documents support a motion, counsel should request clarification or supplementation rather than allowing the court to treat the issue as forfeited.

Checklists

Gather Your Evidence

• File all documentary evidence early and docket it as discrete exhibits (e.g., “Exhibit A — John Doe appraisal, Dkt. No. XX”).
• Cross-reference exhibits in the summary-judgment motion and in the hearing designation (identify docket entry numbers or exhibit labels).
• Ensure business records, tax returns, valuations, and expert reports are authenticated by affidavit or testimony and that supporting affidavits are on file.

Preserve and File Strategically

• When relying on previously filed material, state in the motion and at the hearing that the documents are on file and identify their docket numbers.
• If a court indicates uncertainty about applicability, file a narrowly tailored clarification or supplement (and obtain leave if necessary) identifying which pleadings or motions the documents are intended to support.
• Lodge a record designation and request inclusion of voluminous exhibits in the clerk’s record and appendix for appellate review.

Responding to an Opponent’s Summary-Judgment Motion

• If opposing counsel’s motion relies on documents filed elsewhere, file a written response pointing to the docket entries and arguing that the documents are properly considered under Rule 166a(c).
• Preserve evidentiary objections in the trial court record, and if the trial court considers documents sua sponte, timely move to strike or request an opportunity to respond.
• At the hearing, announce where the evidence is in the record and offer citations to the clerk’s index or reporter’s record.

Preparing the Appellate Record

• Before appeal, confirm the clerk’s record includes all filed exhibits and verify the reporter’s record reflects references to those exhibits at the hearing.
• If the clerk’s record omits contested documents, move in the court of appeals to supplement the record before briefing.
• In appellate briefing, explicitly state that the evidence was on file at the time of the summary-judgment hearing and cite docket entries and trial-court references.

Citation

Ja-Lynn Kuo; JLKUO, PLLC; Subho Mullick; SM ER, PLC; Salima Amina Thobani; and SRG Consulting, LLC v. Regions Bank, No. 24-1039, slip op. (Tex. Oct. 10, 2025).

Full Opinion

Full opinion (PDF)