NO. 12-20-00077-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: EAST TEXAS OILFIELD §

PRODUCTION SERVICES, INC., § | ORIGINAL PROCEEDING
RELATOR §

 

MEMORANDUM OPINION
Relator East Texas Oilfield Production Services, Inc. filed this original proceeding to

compel Respondent to rule on its objections to summary judgment evidence.! We deny the writ.

BACKGROUND

Real Party in Interest, McBride Operating, L.L.C., entered into an oral agreement with East
Texas Oilfield for East Texas Oilfield to provide consulting and drilling supervision services for a
new disposal well named “McBride #1” in Rusk County. McBride alleges that in October 2017,
East Texas Oilfield completed the drilling on McBride #1 and that the casing was not set deep
enough. McBride sued East Texas Oilfield for the damages incurred in correcting the problem.
In its petition, McBride alleged causes of action for negligence, breach of contract, and breach of
warranty.

East Texas Oilfield filed both a no-evidence motion for summary judgment and a
traditional motion for summary judgment. McBride responded to both motions and included an
affidavit and exhibits. East Texas Oilfield filed a reply, which included twenty-one objections to
McBride’s summary judgment evidence. Respondent denied both summary judgment motions in
a letter ruling but did not explicitly rule on the evidentiary objections. East Texas Oilfield filed a

motion for reconsideration and a request for rulings. In its motion and at the hearing, East Texas

 

' Respondent is the Honorable J. Clay Gossett, Judge of the 4th Judicial District Court in Rusk County, Texas.
Oilfield requested Respondent rule on the evidentiary objections. Respondent denied the motion

for reconsideration without ruling on the objections. This original proceeding followed.

PREREQUISITES TO MANDAMUS

A writ of mandamus will issue to correct a clear abuse of discretion when there is no
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law.
Walker, 827 S.W.2d at 839-40. The relator has the burden to establish an abuse of discretion as
well as the inadequacy of a remedy by appeal. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d
304, 305 (Tex. 1994) (orig. proceeding); In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 935
(Tex. App.—Tyler 2005, orig. proceeding).

ADEQUATE REMEDY BY APPEAL

We first address whether East Texas Oilfield has an adequate remedy by appeal. According
to East Texas Oilfield, appeal is an inadequate remedy because Respondent abused his discretion
by failing to rule on its objections to McBride’s summary judgment evidence. It urges that due
process mandates an opportunity to be heard and that Respondent’s failure to rule results in a
waiver of its evidentiary objections.

In its summary judgment response, McBride attached the following evidence: the affidavit
of McBride’s counsel, excerpts from the deposition of Joe Ed McBride (the owner of McBride
Operating), a Texas Railroad Commission Permit, various documents classified as already
admitted trial exhibits, and McBride’s second amended petition. East Texas Oilfield filed twenty-
one lengthy “Objections to McBride’s Summary Judgment Evidence,” but those objections
address the contents of McBride’s summary judgment response rather than the contents of the
summary judgment evidence. Specifically, the objections included assertions that McBride’s
response contained arguments from counsel, irrelevant, conclusory, and argumentative statements,
factual conclusions, legal conclusions lacking in foundation, statements not made by a competent
witness, and hearsay, mischaracterized or misrepresented the evidence, misstated the record, and

made statements that were unsupported by the evidence attached. East Texas Oilfield lodged no

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objections to the actual evidence itself. As such, it appears East Texas Oilfield actually attempts
to complain of Respondent’s denial of its motions for summary judgment.

Whether a clear abuse of discretion can be adequately remedied by appeal depends on a
careful analysis of costs and benefits of interlocutory review. Prudential, 148 S.W.3d at 136. As
this balance depends heavily on circumstances, it must be guided by analysis of principles rather
than simple rules that treat cases as categories. Id. at 137. The most frequent use of mandamus
relief involves cases in which the very act of proceeding to trial, regardless of the outcome, would
defeat the substantive right involved. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex.
2008) (orig. proceeding). The Texas Supreme Court has held appeal is not an adequate remedy
when it will mean forcing parties to trial in a case they agreed to arbitrate, forcing parties to trial
onan issue they agreed to submit to appraisers, forcing parties to a jury trial when they have agreed
to a bench trial, forcing parties to trial in a forum other than the one they contractually selected,
and forcing parties to trial with no chance for one party to prepare a defense. Id.

However, the Texas Supreme Court has further held that mandamus is generally
unavailable when a trial court denies summary judgment because parties are not “entitled” to
summary judgment in the same way they are entitled to arbitration or their chosen forum. See id.

The Texas Supreme Court explained:

Summary judgments were unknown at common law, and appeared in Texas cases only with
adoption of the rule in 1949. Even if the merits could be decided only one way, jury trials may still
be important both for justice and the appearance of doing justice. Moreover, trying a case in which
summary judgment would have been appropriate does not mean the case will have to be tried
twice—as it will if the first trial is conducted in the wrong time, place, or manner. By contrast,
insisting on a wasted trial simply so that it can be reversed and tried all over again creates the
appearance not that the courts are doing justice, but that they don’t know what they are doing. Sitting
on our hands while unnecessary costs mount up contributes to public complaints that the civil justice
system is expensive and outmoded.

Id. at 465-66. Only extraordinary circumstances will justify mandamus review when a trial court
denies a summary judgment motion. In re State Farm Lloyds, No. 13-16-00049-CV, 2016 WL
902864, at *2 (Tex. App.—Corpus Christi Mar. 9, 2016, orig. proceeding) (mem. op.) (citing In
re United Servs. Auto. Ass’n, 307 S.W.3d 299, 314 (Tex. 2010)).

Applying the Supreme Court’s rationale, we hold that mandamus review is unavailable to
the extent East Texas Oilfield’s mandamus petition can be construed as an attempt to challenge

the denial of its motions for summary judgment. See id.; see also In re Ooida Risk Retention
Grp., Inc., 475 S.W.3d 905, 913-14 (Tex. App.—Fort Worth 2015, orig. proceeding) (mandamus
did not lie from denial of summary judgment). Deferring review of an order denying summary
judgment until after rendition of a final judgment in this case will not skew the proceedings,
potentially affect the outcome of the litigation, or compromise the presentation of East Texas
Oilfield’s defense in ways unlikely to be apparent in the appellate record. See State Farm Lloyds,
2016 WL 902864, at *3 (citing Prudential, 148 S.W.3d at 136). Nor would mandamus review
offer needed and helpful direction to the law that would otherwise prove elusive in appeals from
final judgments. See id.; see also Prudential, 148 S.W.3d at 136. And the potential for wasted
time and money in proceeding to trial without correction of alleged error at this stage of the
proceedings does not, without more, merit mandamus review. See State Farm Lloyds, 2016 WL
902864, at *3; see also Prudential, 148 S.W.3d at 136. Accordingly, we conclude that East Texas
Oilfield has an adequate remedy by appeal after final judgment.

Moreover, to the extent that East Texas Oilfield’s “objections” could be construed as
evidentiary objections, we still determine that East Texas Oilfield has an adequate remedy by
appeal because Respondent’s failure to rule does not result in waiver of the particular objections
raised. The same evidentiary standards that apply in trials also control the admissibility of
evidence in summary-judgment proceedings. United Blood Servs. v. Longoria, 938 S.W.2d 29,
30 (Tex. 1997) (per curiam). But the rules of error preservation also apply. See Mansions in the
Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317-18 (Tex. 2012) (per curiam). To preserve
a complaint for appellate review, a party must (1) complain to the trial court by way of “a timely
request, objection, or motion; and (2) the trial court must rule or refuse to rule on the request,
objection, or motion.” Jd. at 317; TEX. R. App. P. 33.1(a). And if purported summary-judgment
evidence presents a defect in “form,” that defect cannot provide “grounds for reversal unless
specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.”
TEX. R. Civ. P. 166a(f).

Construing East Texas Oilfield’s objections as encompassing evidentiary challenges to
McBride’s summary judgment proof, unless it complained of a defect in substance, rather than
form, it was obligated to both object and obtain a ruling on its objection. Mansions, 365 S.W3d
at 317; TEX. R. App. P. 33.1(a)(2). Ifa party objects to an opponent’s summary-judgment evidence,
the evidence “remains part of the summary[-|judgment proof unless an order sustaining the

objection is reduced to writing, signed, and entered of record.” Mitchell v. Baylor Univ. Med.

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Ctr., 109 S.W.3d 838, 842 (Tex. App.—Dallas 2003, no pet.); see also Dolcefino v. Randolph, \9
S.W.3d 906, 927 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (assuming that error was
not preserved so that statements were part of the summary-judgment evidence on appeal). In
contrast, when an affidavit presents purely substantive defects, those defects can be complained of
for the first time on appeal and are not subject to the general rules of error preservation. Seim v.
Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018).

The Texas Supreme Court faced the distinction between substantive and formal defects in
Mansions in the Forest, L.P. v. Montgomery Cty. in 2012. See generally 365 S.W.3d 314 (Tex.
2012). In that case, the summary-judgment movant waited until the case was on appeal before it
objected to the respondent’s failure to conclude an affidavit with a jurat—or to otherwise show
that it was sworn to. Id. at 315. The Supreme Court noted that such a failure meant the instrument
was “not an affidavit” at all. Jd. at 315-16. Yet the Court maintained that even such an obvious
defect is one of form and still subject to the rules of error preservation. See id. at 317—18. Because
the movant failed to obtain a ruling from the trial court, it waived the defect and could not complain
of it on appeal. Id.

Here, East Texas Oilfield’s objections challenge the characterization of evidence and
arguments made within the response to the motions for summary judgment. To the extent they
can be construed as objections to summary judgment evidence itself, the purported objections go
to the substance of the evidence or affidavits as opposed to the form. See Crow v. Rockett Special
Util. Dist., 17 S.W.3d 320, 324 (Tex. App.—Waco 2000, pet. denied) (objection to the conclusory
nature of a summary judgment affidavit or the failure of an expert’s affidavit to disclose the
expert’s qualifications goes to the substance of the affidavit); Rizkallah v. Conner, 952 S.W.2d
580, 584-585 (Tex. App.—Houston [lst Dist.] 1997, no writ) (objection that statements in
summary judgment affidavit were nothing more than legal conclusions was objection of substance,
not of form, and was not waived by failure to raise it in trial court). Therefore, regardless of
whether Respondent signed an order ruling on the purported objections, East Texas Oilfield could
nevertheless raise its substantive complaints for the first time on appeal, without fear of waiver.
See TEX. R. App. P. 166a(f); Crow, 17 S.W.3d at 324; Rizkallah, 952 S.W.2d at 585. Accordingly,
because East Texas Oilfield’s purported objections are, at best, substantive challenges, it has an

adequate remedy by appeal.
DISPOSITION
Because we hold that East Texas Oilfield has an adequate remedy by appeal, we conclude
that East Texas Oilfield has not demonstrated an entitlement to mandamus relief, and we deny the
petition for writ of mandamus. East Texas Oilfield’s motion for temporary relief is overruled as

moot.

JAMES T. WORTHEN
Chief Justice

Opinion delivered April 8, 2020.
Panel consisted of Worthen, C.J. and Hoyle, J.
Neeley, J., not participating.
