Kathy Burgess Individually and as Representative of the Estate of Stephen Burgess v. Gustavo Jimenez, Inc. d/b/a SW Freightlines and Jeffrey Ebener, 11-24-00283-CV, October 29, 2026.
On appeal from 161st District Court, Ector County, Texas
Synopsis
A party does not preserve objections to summary-judgment evidence merely by filing them. Under Texas Rule of Appellate Procedure 33.1, the objecting party must obtain a trial-court ruling; otherwise, the objections are waived and the challenged evidence remains part of the summary-judgment record.
Relevance to Family Law
This preservation rule applies directly to summary-judgment practice in divorce, SAPCR, parentage, enforcement, and post-divorce property litigation. Family-law litigators frequently object to affidavits, expert opinions, business records, appraisals, text messages, social-media evidence, and declarations offered to establish property characterization, reimbursement, parentage, arrearages, or the enforceability of a marital agreement. Filing those objections is only the first step. Unless the trial court rules on them, the appellate court will ordinarily evaluate the summary judgment with the challenged evidence still in the record.
The practical consequence can be dispositive. Evidence that might have been excluded as hearsay, unreliable expert testimony, or otherwise inadmissible may supply the fact necessary to support or defeat summary judgment if counsel does not secure a ruling.
Case Summary
Fact Summary
The appeal arose from a fatal collision on Interstate 20. Stephen Burgess lost control of his pickup while entering the highway and collided with a tractor-trailer driven by Jeffrey Ebener, an employee of Gustavo Jimenez, Inc. d/b/a SW Freightlines. Stephen died, and his passenger, Kathy Burgess, survived.
The parties disputed how the collision occurred. Kathy maintained that the tractor-trailer struck the pickup from behind while the pickup was still on the entrance ramp, causing it to cross the highway. The defendants contended that the pickup hydroplaned or otherwise lost control before making contact with the tractor-trailer.
Kathy sued Ebener and SW Freightlines for negligence. SW Freightlines filed a no-evidence motion for summary judgment, while Ebener filed a combined traditional and no-evidence motion. The trial court granted both motions, although Kathy appealed only the judgment favoring Ebener.
In responding to Ebener’s motion, Kathy asserted two evidentiary objections. She challenged opinion testimony from the investigating Department of Public Safety trooper, arguing that he was not qualified to offer accident-reconstruction opinions and that his methodology was unreliable. She also objected on hearsay grounds to an eyewitness’s recorded statements captured on law-enforcement body-camera footage.
The appellate record, however, contained no ruling on either objection.
Issues Decided
The Eleventh Court of Appeals addressed the following issues relevant to summary-judgment practice:
- Whether Kathy preserved her objections to the investigating trooper’s opinion testimony.
- Whether she preserved her hearsay objection to the eyewitness’s recorded statements.
- Whether the challenged evidence remained part of the summary-judgment record.
- Whether the trial court’s summary judgment could be affirmed on a ground presented in Ebener’s combined traditional and no-evidence motion.
- Whether the unchallenged summary judgment for SW Freightlines should be affirmed.
Rules Applied
Texas Rule of Appellate Procedure 33.1 generally requires the record to show both a timely request, objection, or motion and a trial-court ruling—either express or implicit—or a refusal to rule followed by an objection to that refusal.
The court relied principally on:
- Texas Rule of Appellate Procedure 33.1, governing preservation of appellate complaints.
- FieldTurf USA, Inc. v. Pleasant Grove Independent School District, 642 S.W.3d 829, 837 (Tex. 2022), recognizing that a party who objects to summary-judgment evidence must obtain a ruling to preserve the objection.
- Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 165–66 (Tex. 2018), addressing preservation of objections to summary-judgment evidence and explaining that a ruling on the summary-judgment motion does not, by itself, establish a ruling on evidentiary objections.
- Texas Rule of Civil Procedure 166a(i), as applicable to the motions filed in this case, governing no-evidence summary judgments.
- FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000), requiring affirmance when an unspecified summary-judgment order rests on any meritorious ground presented in the motion.
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), describing the more-than-a-scintilla standard applicable to a no-evidence summary judgment.
- Fossil Group, Inc. v. Harris, 691 S.W.3d 874, 882 (Tex. 2024), explaining that when both sides submit evidence on combined traditional and no-evidence grounds, the central inquiry is whether the nonmovant raised a genuine issue of material fact.
Application
Kathy timely presented written objections to portions of Ebener’s summary-judgment evidence. That act placed the evidentiary issues before the trial court, but it did not complete the preservation process.
Nothing in the appellate record showed that the trial court ruled on the objections to the trooper’s opinions or the eyewitness’s recorded statements. Nor could a ruling be inferred merely from the court’s decision to grant summary judgment. A merits ruling on a summary-judgment motion is not automatically an evidentiary ruling on every objection associated with the motion.
Because Kathy did not obtain a ruling, the Eleventh Court treated both objections as waived. The trooper’s testimony and the eyewitness’s recorded statements therefore remained in the body of evidence the appellate court could consider when reviewing the summary judgment.
The court also affirmed the separate judgment for SW Freightlines because Kathy did not challenge that judgment on appeal. As to Ebener, the trial court’s order did not identify whether relief was granted on traditional grounds, no-evidence grounds, or both. The appellate court therefore applied the rule that an unspecified summary judgment must be affirmed if any ground asserted in the motion supports the judgment.
Holding
The court held that Kathy did not preserve her objections to the investigating trooper’s opinion testimony or the eyewitness’s recorded statements. Although she asserted the objections in the trial court, the record did not show that she obtained rulings on them. The objections were therefore waived under Rule 33.1, FieldTurf, and Seim.
The court further held that the challenged materials remained part of the summary-judgment record. It declined to decide the evidentiary objections on their merits because the preservation defect was dispositive.
The court affirmed the summary judgment for SW Freightlines because Kathy did not challenge that separate judgment on appeal. It also affirmed the judgment for Ebener under the standards governing combined traditional and no-evidence summary-judgment motions.
Practical Application
In family-law litigation, the preservation problem commonly arises when the court hears a summary-judgment motion and announces only that the motion is granted or denied. That announcement ordinarily does not establish how the court ruled on separately filed evidentiary objections.
Counsel should submit a proposed written order addressing each objection or clearly organized groups of objections. The order should identify whether each objection is sustained or overruled. A generic proposed order stating that “all objections are ruled upon” may create avoidable uncertainty unless the disposition of those objections is evident from the signed order.
The rule has particular significance in the following family-law settings:
- Property characterization: A party may move for summary judgment that an asset is separate property based on affidavits, deeds, account records, or tracing opinions. Objections to authentication, hearsay, or expert methodology require rulings.
- Premarital and partition agreements: Summary judgment may turn on declarations concerning execution, disclosure, voluntariness, or unconscionability. Objections to those declarations are not preserved simply because they appear in the response.
- Parentage proceedings: Genetic-testing records, acknowledgments of paternity, and supporting affidavits may become summary-judgment evidence. Any evidentiary challenge should be presented and ruled upon.
- Enforcement and arrearage disputes: Payment histories, business-record affidavits, registry records, and account summaries may determine whether a fact issue exists. Counsel must secure rulings on objections to those materials.
- Post-divorce property cases: Motions involving omitted assets, contractual decree provisions, or declaratory relief may rely heavily on documentary evidence. An unresolved objection leaves the document available for appellate consideration.
- Related tort and contract claims: Fraud, breach-of-fiduciary-duty, fraudulent-transfer, and contract claims joined with or following a divorce often receive summary-judgment treatment. The ordinary civil preservation rules apply with full force.
Counsel should also avoid assuming that the trial court’s refusal to discuss objections means they were overruled. If the court refuses to rule, Rule 33.1 requires counsel to make that refusal—and the objection to the refusal—part of the record.
Checklists
Preparing Summary-Judgment Evidence Objections
- Identify each challenged item by exhibit, page, paragraph, and line when practicable.
- State the specific legal ground for each objection.
- Distinguish objections to admissibility from arguments that the evidence is legally insufficient.
- Cite the applicable evidence rule and controlling summary-judgment authority.
- File the objections by the governing deadline.
- Confirm that the objections appear in the clerk’s record.
- Prepare a proposed order that separately disposes of each objection or defined group of objections.
Obtaining a Trial-Court Ruling
- Request a ruling at or before the summary-judgment hearing.
- Present the proposed evidentiary order separately from the proposed merits order.
- Ask the court to mark each objection “sustained” or “overruled.”
- Do not assume that granting or denying summary judgment implicitly resolves the objections.
- If the court rules orally, ensure that the ruling is clearly stated in the reporter’s record.
- As the safer practice, obtain a signed written order entered in the clerk’s record.
- If the court refuses to rule, state that request and the objection to the refusal on the record.
- Review the signed orders promptly and request clarification or correction before appellate deadlines expire.
Protecting the Family-Law Summary-Judgment Record
- Determine whether the motion is traditional, no-evidence, or combined.
- Match every response exhibit to the particular challenged element or asserted ground.
- Authenticate texts, emails, financial records, photographs, and social-media material.
- Confirm that affidavits and declarations establish personal knowledge and competency.
- Address hearsay and embedded hearsay in financial and communications evidence.
- Support expert opinions with qualifications, methodology, and an adequate factual basis.
- Obtain rulings on the opposing party’s objections to your evidence when necessary to preserve the evidence for review.
- Ensure that all evidence referenced in the motion or response was actually filed and is included in the appellate record.
Preparing for Appeal
- Confirm that every evidentiary objection has a corresponding ruling.
- Include the objections and signed evidentiary order in the clerk’s record.
- Request the reporter’s record if the court ruled orally or refused to rule.
- Challenge every independent summary-judgment ground capable of supporting the judgment.
- Challenge every final summary-judgment order from which appellate relief is sought.
- Do not rely on appellate briefing to cure an omitted trial-court ruling.
- Analyze the summary-judgment record as it exists after the preserved evidentiary rulings.
Citation
Kathy Burgess Individually and as Representative of the Estate of Stephen Burgess v. Gustavo Jimenez, Inc. d/b/a SW Freightlines and Jeffrey Ebener, No. 11-24-00283-CV, slip op. (Tex. App.—Eastland Oct. 29, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
The crossover rule is procedural: an objection to summary-judgment evidence must be presented to the trial court and resolved by a ruling to preserve the complaint for appellate review. The filing of written objections does not, standing alone, exclude the evidence, and an order granting or denying summary judgment does not necessarily imply a ruling on those objections.
In a Texas family-law matter, this issue may arise when a party seeks summary judgment on the characterization of property, the enforceability of a marital agreement, parentage, an arrearage calculation, an omitted asset, or a related contract or tort claim. If the response objects to an expert tracing affidavit, an appraisal, financial records, electronic communications, or a declaration, counsel must obtain a ruling. Without one, the appellate court may consider the challenged material when deciding whether the movant established entitlement to judgment or whether the nonmovant raised a genuine issue of material fact.
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