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CROSSOVER: Preservation Defeats Rule 902(10) Notice Attack, and Summary-Judgment Submission Is Not a ‘Trial’ for 30-Day Witness Disclosure Timing

Thomas Daley
New Texas Court of Appeals Opinion - Analyzed for Family Law Attorneys

Johnson v. Citibank, N.A., 14-25-00818-CV, September 17, 2026.

On appeal from County Civil Court at Law No. 2, Harris County, Texas

Synopsis

A complaint that business-records summary-judgment evidence did not satisfy Texas Rule of Evidence 902(10)(A)’s 14-day notice requirement is not preserved for appeal unless the complaining party presented that specific notice objection to the trial court and obtained a ruling. An objection aimed only at the affidavit’s form under Rule 902(10) does not preserve a separate notice-based complaint, and the court also reiterated that a summary-judgment submission date is not itself a “trial” for purposes of the 30-day witness-disclosure deadline.

Relevance to Family Law

This decision matters in Texas family litigation because business-records affidavits and witness-disclosure fights routinely surface in divorce property tracing, reimbursement claims, support enforcement, fee claims, reimbursement ledgers, bank and credit-card records, business valuations, and modification or SAPCR proceedings resolved by summary judgment or partial summary judgment. The opinion is a reminder that preservation remains unforgiving in family court: if the defect is lack of Rule 902(10) notice, counsel must say that specifically in the trial court, and if the dispute concerns disclosure timing, counsel should not assume that a summary-judgment submission date functions as a “trial” trigger under Rule 194.4.

Case Summary

Fact Summary

Citibank sued to recover an outstanding credit-card balance and moved for traditional summary judgment. To support its motion, Citibank offered affidavits from two document control officers along with account records. The defendant objected to the summary-judgment evidence on several grounds, including inadequate pretrial witness disclosure, noncompliance with Rule 902(10), and conclusory affidavit statements. The trial court overruled the objections and granted summary judgment.

On appeal, the defendant pressed evidentiary complaints that are familiar to any litigator dealing with paper-record proof: whether the affiants had been timely disclosed, whether the business-records affidavit satisfied Rule 902(10)’s 14-day notice requirement, and whether portions of the affidavits were conclusory. The Fourteenth Court of Appeals rejected each challenge and affirmed.

Issues Decided

Rules Applied

The court relied on several procedural and evidentiary rules that family lawyers use constantly:

Application

The court treated the disclosure issue first and drew an important distinction that practitioners sometimes blur. The defendant argued that one witness was disclosed only eight days before the summary-judgment submission and that this timing required exclusion because the submission should be treated as a “trial.” The court rejected that premise. It read Gillenwater as holding only that Rule 193.6 can apply in summary-judgment practice, not that a summary-judgment submission date is transformed into a trial setting for purposes of the 30-day disclosure rule. Relying on its own decision in Izen, the court held that disclosure less than 30 days before submission did not, without more, compel exclusion.

The defendant also argued that another witness was disclosed only six days before an earlier trial setting reflected in the clerk’s case summary. But the appellate record did not establish that an actual trial occurred on that date. There was no reporter’s record, the reporter’s form indicated none existed, and subsequent filings showed the case continued forward through summary-judgment practice and later trial settings. On that record, the court would not infer that the first setting constituted a “trial” for Rule 194.4 purposes. The result is practical: if counsel intends to build an appellate issue around a missed pretrial disclosure deadline keyed to a trial setting, the record must clearly show what proceeding occurred and why it qualifies as the operative trial event.

The preservation holding is the sharper appellate point. On appeal, the defendant argued that one affidavit did not satisfy Rule 902(10)’s 14-day notice requirement. But the court held that this complaint had not been preserved because the trial-court objection did not actually raise lack of notice. Instead, the objection attacked the affidavit only as noncompliant in form under Rule 902(10). The court treated notice and form as distinct complaints. Because Rule 33.1 requires the specific complaint urged on appeal to have been presented below, a form objection could not do preservation work for a separate notice objection. That distinction will matter whenever counsel confronts business-records affidavits attached to summary-judgment motions in family cases.

Finally, the court rejected the argument that portions of the affidavits were conclusory. It held that the affiants explained their roles, their personal knowledge of Citibank’s recordkeeping processes, the incorporation of records from prior entities, and the relationship between the attached account statements and the debt claimed. The attached statements themselves also supported the affiants’ assertions. So the affidavits contained an adequate factual basis and were not merely inferential conclusions.

Holding

The court held that a complaint alleging noncompliance with Rule 902(10)(A)’s 14-day notice requirement must be preserved under Rule 33.1 by a specific objection in the trial court and a ruling on that objection. Because the defendant did not raise the notice issue below, the complaint was waived on appeal.

The court further held that an objection directed only to the form of a Rule 902(10) business-records affidavit does not preserve a separate complaint that the proponent failed to provide the required 14-day notice. Form and notice are distinct defects, and preservation of one does not preserve the other.

The court also held that a summary-judgment submission date is not a “trial” for purposes of applying Rule 194.4’s 30-day witness-disclosure deadline. Although Rule 193.6 can apply in summary-judgment practice, that principle does not convert summary-judgment submission into the operative trial event.

Finally, the court held that the record did not establish an abuse of discretion on the disclosure complaint tied to an earlier trial setting because the appellate record did not show that an actual trial occurred on that date, and the challenged affidavit statements were not conclusory.

Practical Application

For family-law litigators, the case offers two concrete procedural lessons.

First, preserve the precise evidentiary complaint you intend to brief on appeal. In divorce cases involving bank statements, credit-card records, loan histories, mortgage records, retirement-account records, payroll ledgers, QuickBooks exports, reimbursement spreadsheets, or attorney-fee records, counsel often objects generally that the business-records affidavit is “defective under Rule 902(10).” That is not enough if the actual complaint is lack of 14-day notice. State the notice defect expressly, identify the rule subsection, and secure a ruling. If there is also a defect in form, make both objections separately.

Second, do not assume that summary-judgment submission dates trigger trial-disclosure deadlines. In family cases, partial summary judgments arise in premarital-agreement enforcement, characterization disputes, reimbursement claims, contract-based partition issues, support arrearage calculations, and no-evidence attacks on discrete claims or defenses. If your exclusion theory depends on Rule 194.4’s “30 days before trial” language, build a record showing the actual trial setting, whether trial occurred, whether the setting was vacated, and whether any scheduling order imposed a different disclosure deadline. A docket notation or clerk’s summary alone may be too thin.

Strategically, this case also reinforces a broader appellate habit: separate complaints by doctrinal category. In evidentiary motion practice, keep distinct sections for authentication, hearsay, Rule 902 notice, lack of personal knowledge, conclusory statements, best-evidence concerns, and discovery-sanction/exclusion theories under Rules 193.6 and 194.4. Trial judges can then rule with precision, and appellate courts will have a cleaner preservation record.

Checklists

Preserving a Rule 902(10) Notice Complaint

Objecting to Summary-Judgment Affidavits in Family Cases

Building a Disclosure-Timing Record

Using the Case in Property and Support Litigation

Family Law Crossover

The procedural mechanism this opinion clarifies is straightforward but consequential: a Rule 902(10) notice complaint is a distinct evidentiary objection that must be specifically preserved under Rule 33.1, and summary-judgment submission is not itself the “trial” date for Rule 194.4’s 30-day witness-disclosure timing. In family law, that crossover appears whenever a party offers self-authenticated business records by affidavit—bank statements to prove separate-property tracing, mortgage and HELOC records on reimbursement, tuition or medical ledgers in support enforcement, payroll records for net-resources calculations, or business records supporting attorney’s fees. If the responding party believes the 14-day Rule 902(10) notice was not satisfied, counsel must raise that exact notice defect in the trial court. Separately, if the argument is that a records custodian or affiant was disclosed too late, counsel must anchor the objection to an actual rule-based or court-ordered deadline rather than assuming that the summary-judgment submission date operates as a trial setting.

Citation

Johnson v. Citibank, N.A., No. 14-25-00818-CV, memorandum opinion, 2026 WL ___ (Tex. App.—Houston [14th Dist.] Sept. 17, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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