Supreme Court of Texas
══════════
No. 20-0507
══════════
FieldTurf USA, Inc. and Altech, Inc.,
Petitioners,
v.
Pleasant Grove Independent School District,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Sixth District of Texas
═══════════════════════════════════════
Argued November 30, 2021
JUSTICE LEHRMANN delivered the opinion of the Court.
The primary issue in this case, involving a school district’s
breach-of-warranty claims against a general contractor and an artificial-
field-turf manufacturer, is whether a trial court’s on-the-record, oral
ruling sustaining an objection to summary judgment evidence suffices
to strike the evidence from the summary judgment record when the
ruling is not reduced to a written order. We hold that it does. We further
hold that the court of appeals both erroneously reversed the trial court’s
summary judgment in favor of the contractor and improperly remanded
the claims against the turf manufacturer for a new trial without
addressing the merits of the issues on appeal that, if sustained, could
result in rendition of judgment for the manufacturer. Accordingly, we
reverse the court of appeals’ judgment in part, reinstate the trial court’s
summary judgment in favor of the contractor, and remand to the court
of appeals to consider issues it did not reach.
I. Background
In 2008, Pleasant Grove Independent School District contracted
with Altech, Inc. for the construction of a new high-school football
stadium. The District independently obtained bids from several
synthetic-field-turf manufacturers and, in accordance with its
architect’s recommendation, selected the Prestige XM-60 turf system—
composed of a synthetic fiber known as Duraspine—manufactured by
FieldTurf USA, Inc. According to the District, FieldTurf had
represented that its product was more durable than its competitors’ and
that the field would last ten to twelve years. Altech subcontracted with
Sports Constructors, Inc. to install the turf, and Sports Constructors
purchased the turf from FieldTurf and installed it. The stadium was
substantially completed on October 16, 2009, and the District paid
Altech for all work performed and took possession of the field.
FieldTurf provided an eight-year manufacturer’s limited
warranty stating in pertinent part:
FIELDTURF warrants that if Prestige XM-60 . . .
synthetic turf proves to be defective in material or
workmanship, resulting in a loss of pile height greater than
50%, during normal and ordinary use of the
Product . . . within 8 years from the date of completion of
installation, FIELDTURF will, at FIELDTURF’S option,
2
either repair or replace the affected area without charge, to
the extent required to meet the warranty period (but no
cash refunds will be made). . . . This warranty is limited to
the remedies of repair or replacement, which shall
constitute the exclusive remedies available under this
warranty, and all other remedies or recourses which might
otherwise be available are hereby waived by the Buyer.
FieldTurf expressly “disclaim[ed] all other warranties of any kind,
expressed or implied, in fact or in law, including but not limited to, the
implied warranties of merchantability or fitness for a particular
purpose.” (Emphasis removed).
For its part, Altech warranted in its general contract with the
District that “the Work will be free from defects not inherent in the
quality required or permitted, and that the Work will conform to the
requirements of the Contract Documents.” One of those documents
listed the specifications for the synthetic turf system, which included:
The synthetic turf system shall meet the following shock
absorption criteria when combined with the shock
absorbency pad beneath the system:
a. G-Max Rating Range (upon installation) 80-120
ASTM F355
b. G-Max Rating Range (Ultimate) 100-140
ASTM F355
c. Field surface shall maintain a G-Max rating within the
limits of the Ultimate G-max range listed above
throughout the life of the synthetic turf system
warranty. 1
1 G-Max testing measures the shock-absorbing properties of playing
surfaces. Standard F355, established by ASTM International, is a common
3
According to District personnel, they first noticed issues with field
degradation in the spring of 2014. In July, the District notified
FieldTurf of those issues, including problems with the field’s seams and
degradation of the gold fiber lettering in each end zone compared to the
adjacent black fiber. FieldTurf representative Ross Whitting inspected
the field in August and repaired a loose seam. During the inspection,
Whitting reportedly told District representative Steven Shatto that
FieldTurf had “multiple fields that are failing” and that it was replacing
some but not others. FieldTurf representative Todd Bresee inspected
the field on September 22 and prepared an internal evaluation report—
which was not shared with the District—in which he concluded that the
field was “showing signs of accelerated wear in . . . all fiber colors in the
area of the field in-between the numbers,” as well as “large amounts of
broken fiber on the surface.” He rated much of the green fiber (the
majority of the fiber on the playing field) as being in poor or fair
condition, the white fiber (the end-zone boundary lines and markings on
the playing field) as being in poor or fair condition, the fiber at the center
logo as being in poor or fair condition, and the black fiber (making up
the inlaid soccer lines) as being in fair or good condition. According to
Shatto, Bresee stated during the inspection that the field was in bad
shape and that the District was “on the right track” by insisting the field
be replaced.
The day after Bresee’s site visit, Shatto emailed FieldTurf
representative Julie Paquin, reiterating his concern that the field had
industry-standard test method for measuring impact attenuation. See
https://www.astm.org/f0355-16e01.html.
4
significantly degraded and stating his hope “that FieldTurf will look at
our field as a total failure and replace it under full warranty[.]” Paquin
replied that FieldTurf would communicate a “plan of action” once the
report was prepared and reviewed by the senior leadership team. Over
the next few months, Shatto sent Paquin monthly emails requesting an
update on field replacement.
On January 13, 2015, FieldTurf informed the District via email
that, based on the evaluation, FieldTurf had found the field to be in
“fair/good” condition. Specifically, FieldTurf concluded that the field
was “showing some signs of fiber degradation” but was “not exhibiting
any playability or hazardous concerns.” FieldTurf proposed conducting
a LayMor Scrape, which involved removing a thin top layer of infill 2 to
expose more turf fiber, removing excess infill, and completing “any
minor inlaid repairs needed.” FieldTurf also proposed revisiting the
field in the next nine to twelve months “to monitor if there are any
deviations and to discuss the field options moving forward.”
The next day, the District’s superintendent sent FieldTurf a letter
rejecting its proposed action as an inadequate solution to the ongoing
degradation of the field. The letter included a demand that FieldTurf
replace the field “with a new installed surface meeting specifications
equal to or greater than the original specified products.” 3 FieldTurf
responded on February 12, reiterating its conclusion that the field was
2“Infill” is the black crumb-rubber and sand mixture that fills in the
spaces between the fibers to provide stability.
3 The District also requested replacement of an adjacent indoor practice
field composed of the same turf system. That field is not at issue in this suit.
5
“not at the point of replacement” and that the observed fiber degradation
was “predominately a problem of appearance.” FieldTurf again
recommended a LayMor Scrape as “the best action at this time.”
The District hired a consultant, Roland Kunkel, to assess the
field. Kunkel reviewed the District’s documents and inspected the field
in October 2015, concluding that, based on the field’s condition, the only
viable solution was to replace it. Ultimately, in May 2016, the District
hired another field supplier to replace the field for $348,050.
Meanwhile, in September 2015, the District sued FieldTurf and
Altech, bringing claims for breach of contract and breach of warranty
against both defendants and a fraud claim against FieldTurf. 4 The
District initially alleged that Altech breached its promise to provide turf
materials that were free from defects, and the District subsequently
amended its petition to further allege that the field had “exceeded
acceptable shock absorption criteria as measured by G-Max testing.” As
to FieldTurf, the District asserted that FieldTurf had breached both its
express warranty that the field would be free from defects in materials
and workmanship for eight years and its implied warranty that the field
was fit for its intended purpose. The District also complained that
FieldTurf failed to replace the field as the warranty required despite
several requests that it do so. On the fraud claim, the District alleged
that: it relied on FieldTurf’s representations regarding the properties,
qualities, and performance characteristics of the Duraspine fiber in
selecting the Prestige XM-60 turf system; FieldTurf knew or should have
4 The District also sued Sports Constructors but later nonsuited the
claims against it.
6
known that the representations were false and that the materials were
defective and would prematurely wear down; and FieldTurf continued
to knowingly misrepresent that the product was defect-free in
responding to the District’s numerous requests that the field be
replaced.
Altech filed a traditional and no-evidence motion for summary
judgment, arguing that it played no role in selecting the allegedly
defective turf product—the District chose the Prestige XM-60 and
approved it as being compliant with the construction specifications—
and that Altech made no guarantee or warranty that the product would
be free from inherent defects or other defects permitted by the contract
documents. The District responded that the contract did not exempt
Altech from liability for inherent defects and that the contract expressly
held Altech responsible for the acts of any downstream contractors. And
the District argued that the field did not conform to the contract
documents for the additional reason that it failed to maintain a G-Max
rating less than 140 throughout its first eight years. In support of this
assertion, the District attached to its summary judgment response a
report from Bounce Diagnostics dated March 3, 2016 (the G-Max report),
indicating an average field G-Max rating of 166.5 and individual results
between 143.6 and 188.4, all exceeding the contractually mandated
maximum of 140. The District also referenced Kunkel’s expert report,
in which he opined that the turf system failed to meet contract
specifications, as evidenced in part by “the G-Max testing . . . performed
on 3/03/2016 by Bounce Diagnostics.”
7
In reply, Altech objected to the G-Max report on the grounds that
(1) it failed to document that a proper testing device was utilized or that
the device was calibrated and (2) the “authenticity of the G-Max report
has not been established.” Altech further noted that the District did not
assert a claim premised on “a G-Max issue” until March 2017, well after
the FieldTurf product was removed from the stadium, and that Altech
had thus been denied the opportunity to conduct its own test. The
District filed a surreply, arguing that the testing device had been
correctly calibrated and that the G-Max report was properly
authenticated.
At the hearing on Altech’s summary judgment motion, the parties
presented additional argument regarding the G-Max report’s
authenticity and resulting admissibility as summary judgment
evidence. At the conclusion of the argument, the trial judge orally
stated, “I’m . . . going to sustain [Altech’s] objection and Altech’s motion
for summary judgment is granted.” The trial court subsequently signed
a written order granting the summary judgment motion and dismissing
the District’s claims against Altech with prejudice. The order did not
reference the G-Max report, nor did the trial court sign any other written
order sustaining Altech’s objection to the report.
FieldTurf moved for partial summary judgment on all claims
except the claim for breach of express warranty. FieldTurf contended
the District’s contract claim was meritless because no contract existed
between those two parties. As to the implied-warranty claims, FieldTurf
asserted that its express limited warranty disclaimed all other
warranties. And FieldTurf argued the District’s fraud claims failed for
8
a variety of reasons, including the independent-injury rule, the absence
of any actionable misrepresentations, and the lack of a duty to disclose
for purposes of any alleged fraudulent inducement by omission. After a
hearing and supplemental briefing on the fraud claims, the trial court
granted FieldTurf’s motion and dismissed all claims against it except
the claim for breach of express warranty, which was tried to a jury.
The jury returned a verdict in favor of the District and found that
the District was entitled to $175,000 in damages—in the form of “[t]he
difference at the time and place of acceptance between the value of the
goods accepted and the value they would have had if they had been as
warranted”—resulting from FieldTurf’s failure to comply with the
warranty. The trial court rendered judgment on the jury’s verdict,
awarding the District $175,000 in actual damages, plus pre- and post-
judgment interest. FieldTurf moved for judgment notwithstanding the
verdict, the District moved for a new trial, and the trial court denied
both motions.
On appeal, the District argued that the trial court’s order
granting Altech summary judgment on the District’s claim for breach of
the G-Max warranty should be reversed because (1) Altech’s motion was
facially defective and (2) the evidence raised a fact issue as to whether
Altech breached that warranty. 5 The District also sought reversal of the
trial court’s summary judgment for FieldTurf on the District’s fraud
claims and argued that the trial court improperly instructed the jury as
5 The District did not complain about the trial court’s summary
judgment with respect to the breach-of-warranty claim premised on Altech’s
alleged failure to provide a defect-free field.
9
to the measure of damages on the warranty claim against FieldTurf.
The District requested that the court of appeals remand for a new trial
on the G-Max warranty claim against Altech and on the fraud and
express-warranty claims against FieldTurf. FieldTurf cross-appealed,
arguing that it was entitled to rendition of a take-nothing judgment
because (1) the evidence conclusively showed the field did not qualify for
warranty coverage; (2) the District’s exclusive remedy under the
warranty was repair or replacement; (3) the Uniform Commercial Code’s
exception allowing recovery of monetary damages despite a warranty’s
exclusive-remedy provision was neither pleaded nor proved; (4) as a
matter of law, the District failed to provide FieldTurf the required
opportunity to cure; and (5) the District presented no evidence of its
damages under the measure authorized by the UCC and submitted to
the jury.
The court of appeals reversed the summary judgment for Altech
as to the G-Max warranty claim, holding that Altech’s motion was not
facially defective but that the G-Max report raises a fact issue on that
claim. 634 S.W.3d 84, 92–95 (Tex. App.—Texarkana 2020). The court
of appeals acknowledged that the trial court had sustained Altech’s
objection to the report on the record but held that “unless the trial
court’s order is reduced to writing, signed by the trial court, and entered
of record,” “the objected-to evidence remains a part of the summary-
judgment proof.” Id. at 94–95. As to FieldTurf, the court of appeals
affirmed the trial court’s partial summary judgment on the District’s
fraud claims. Id. at 99–100. The court did not address any of FieldTurf’s
arguments that it was entitled to rendition of judgment on the express-
10
warranty claim or the District’s assertions of charge error with respect
to the damages instruction. Instead, the court summarily concluded
that “a remand for new trial [in the interest of justice] is the appropriate
remedy, because the trial court’s erroneous [summary judgment]
regarding Altech limited to some degree the evidence of fault presented
to the jury, and therefore the more prudent course of action is to restore
the parties to the status quo at the time of the summary-judgment
rulings and redo matters from that point forward.” Id. at 101 (citing
TEX. R. APP. P. 43.3(b)).
Altech and FieldTurf petitioned this Court for review. Altech
seeks reinstatement of the summary judgment in its favor, while
FieldTurf argues that the court of appeals’ remand without first
addressing FieldTurf’s rendition issues was improper regardless of
whether the summary judgment for Altech was correctly reversed. 6 The
District did not file a cross-petition; accordingly, the portion of the court
of appeals’ judgment affirming summary judgment for FieldTurf on the
District’s fraud claims is final, and we do not consider it. TEX. R. APP.
P. 53.1 (“A party who seeks to alter the court of appeals’ judgment must
file a petition for review.”).
6 FieldTurf also joins Altech in arguing that the court of appeals
erroneously reversed summary judgment for Altech, providing an additional
reason the court should have addressed FieldTurf’s issues on appeal before
remanding for a new trial.
11
II. Analysis
A. Remand for New Trial as to FieldTurf
As a general matter, we have consistently held that when
multiple grounds for reversal of a trial court’s judgment are presented,
courts of appeals should “first address issues that would require
rendition” and thus should consider those issues before ordering a
remand. Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 201–02
(Tex. 2003) (citations omitted). However, even when rendition would
otherwise be warranted, our rules of appellate procedure allow
discretion for a remand when “the interests of justice require” it. TEX.
R. APP. P. 43.3(b). We have said that the “most compelling case” for such
a remand “is where we overrule existing precedents on which the losing
party relied at trial.” Carowest Land, Ltd. v. City of New Braunfels, 615
S.W.3d 156, 158–59 (Tex. 2020) (citation omitted); see also Transp. Ins.
Co. v. Moriel, 879 S.W.2d 10, 13, 26 (Tex. 1994) (remanding where the
Court’s opinion provided a “substantial clarification” of the law).
Another circumstance meriting a remand in the interest of
justice, and the one relied on by the court of appeals here, is when the
trial court’s error prevented full development and presentation of the
evidence. Mobil Oil Corp. v. Frederick, 621 S.W.2d 595, 596 (Tex. 1981);
see also Tex. Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., 561
S.W.3d 263, 280 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“As
the entire trial proceedings were premised on erroneous summary
judgment orders, the more prudent course of action is to restore the
parties to the status quo at the time of the summary judgment rulings
and begin anew.”). But a remand for that reason must be supported by
12
the record, Jackson v. Ewton, 411 S.W.2d 715, 718–19 (Tex. 1967), and
we find no such support in this record. The court of appeals provided no
explanation, and we discern none, for its conclusion that the trial court’s
grant of summary judgment for Altech, even if erroneous, affected
development or presentation of the evidence at trial on the District’s
remaining claim against FieldTurf.
The District does not defend the court of appeals’ reasoning,
arguing only that the trial court’s error in instructing the jury on the
measure of damages required a remand irrespective of the merits of
FieldTurf’s appellate issues. But the court of appeals addressed neither
party’s issues on appeal, and we express no opinion on their viability.
We agree with FieldTurf that the case must be remanded to the court of
appeals to address the merits of the parties’ appellate issues in the first
instance.
B. Summary Judgment for Altech
In partially reversing the trial court’s summary judgment for
Altech, the court of appeals held that the G-Max report created a fact
issue as to whether Altech breached its warranty that the field would
not exceed a G-Max rating of 140 throughout its first eight years. 634
S.W.3d at 94–95. As noted, the court of appeals held that the G-Max
report remained in the summary judgment record, despite the trial
court’s express oral ruling sustaining Altech’s written objection to the
report, because that ruling was never reduced to writing. Id. Altech
argues that the court of appeals erred in requiring a written order and
discounting the trial court’s on-the-record oral ruling, while the District
maintains that allowing any consideration of the reporter’s record on
13
summary judgment review would amount to “a major revision to
summary judgment and appellate procedure.” For the reasons
discussed below, we agree with Altech and hold that the court of appeals
erred in considering and relying on the G-Max report to reverse the trial
court’s summary judgment. 7
It is well settled that while “[t]he same evidentiary standards that
apply in trials also control the admissibility of evidence in summary-
judgment proceedings,” “the rules of error preservation also apply.”
Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163–64 (Tex. 2018). Thus,
to complain on appeal about defects in the form of summary judgment
evidence, a party must both timely object and secure a ruling from the
trial court on the objection. Id. at 164; see TEX. R. CIV. P. 166a(f) (stating
that a defect in the form of summary judgment evidence provides no
“grounds for reversal unless specifically pointed out by objection by an
opposing party with opportunity, but refusal, to amend”). Without both
an objection and a ruling, the complained-of evidence remains part of
the summary judgment record and should be considered by the court of
appeals in reviewing the trial court’s judgment. Seim, 551 S.W.3d at
166; TEX. R. APP. P. 33.1(a) (stating that preservation of a complaint for
appellate review requires that the record show both (1) the complaint
7 Altech and FieldTurf argue that the District waived the argument that
a written order on Altech’s objection to the G-Max report was required by
failing to raise it until the reply brief in the court of appeals. The District
responds that it had no reason to raise the issue until Altech and FieldTurf
argued in their appellees’ briefs that the report could not be considered despite
the absence of a written order to that effect. Because we disagree with the
District that a written order was required, we need not address whether the
issue was waived.
14
was made to the trial court by a timely request, objection, or motion and
(2) the court expressly or implicitly ruled, or refused to rule, on the
request or objection).
In Seim, we explained that before Rule 33.1 was amended in 1997
to allow for an “implicit” ruling, “it was ‘well settled’ that trial courts
must expressly rule on objections in writing for error to be preserved.”
551 S.W.3d at 165 (citation omitted). The amendment led to a conflict
among the courts of appeals regarding whether a trial court may
“implicitly” rule on an objection to summary judgment evidence merely
by granting the summary judgment motion. Id. at 164. Confirming that
a ruling may be implied only if “the implication was ‘clear,’” we held in
Seim that an order granting a party’s motion for summary judgment
does not in itself clearly imply a ruling sustaining the party’s objections
to summary judgment evidence, at least where “sustaining the
objections was not necessary for the trial court to grant summary
judgment.” Id. at 166 (citing In re Z.L.T., 124 S.W.3d 163, 165 (Tex.
2003)).
The District argues that while Seim “opened up the possibility
that a written order could implicitly constitute [a ruling sustaining an
objection to evidence] where the only way the ruling could have been
reached is by necessarily sustaining [the] objection,” it did not “suggest
that summary judgment review was now opened up to include rulings
on reporter’s transcripts.” Of course, Seim addressed only the issue
presented in that case, but we were careful to note in presenting the
facts that the trial court had “neither signed the [proposed] order
sustaining [the party’s] objections nor otherwise ruled on them.” Id. at
15
163 (emphasis added). And our conclusion that the objected-to evidence
remained in the record was premised on the observation that “nothing
in this record serves as a clearly implied ruling by the trial court on [the]
objections.” Id. at 166 (emphasis added). By contrast, a trial court’s on-
the-record, unequivocal oral ruling on an objection to specific evidence
could hardly be more “clear.”
Several courts of appeals have held as much, concluding that
where the record shows the trial court heard argument and documented
its express rulings on the pertinent objections in the reporter’s record,
the rulings need not be reduced to writing to satisfy Rule 33.1. E.g.,
Birnbaum v. Atwell, No. 01-14-00556-CV, 2015 WL 4967057, at *4 (Tex.
App.—Houston [1st Dist.] Aug. 20, 2015, pet. denied); Columbia Rio
Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 395–96 (Tex. App.—Corpus
Christi 2000, no pet.) (holding that the absence of a written order
overruling objections to summary judgment evidence was unnecessary
to preserve error where the reporter’s record of the summary judgment
hearing revealed that the trial court explicitly overruled the objections). 8
8 See also Ordonez v. Solorio, 480 S.W.3d 56, 63 (Tex. App.—El Paso
2015, no pet.) (“Failure to obtain written rulings on objections to summary
judgment evidence waives the issue, unless . . . something in the record
reflect[s] that the trial court ruled on the objections.”); Kothmann v. Cook,
No. 07-05-00335-CV, 2007 WL 1075171, at *3 (Tex. App.—Amarillo Apr. 11,
2007, no pet.) (holding that where a hearing has been held on the motion, and
the trial court has clearly and unequivocally sustained the objection, the
objected-to evidence does not form part of the summary judgment evidence);
Rogers v. Cont’l Airlines, Inc., 41 S.W.3d 196, 200 (Tex. App.—Houston [14th
Dist.] 2001, no pet.) (“A party objecting to the competency of summary
judgment proof must obtain a ruling on its objection or obtain a written order
signed by the trial judge and entered of record, or the objection is waived and
the proof remains a part of the summary judgment record.” (emphasis added)).
16
We agree with the reasoning of these decisions. A trial court’s on-the-
record, unequivocal oral ruling on an objection to summary judgment
evidence qualifies as a ruling under Texas Rule of Appellate
Procedure 33.1, regardless of whether it is reduced to writing.
We do not view this holding as a significant shift regarding
consideration of a reporter’s record in reviewing a summary judgment
on appeal. Under our procedural rules, oral testimony may not be
received at the summary judgment hearing. TEX. R. CIV. P. 166a(c). A
motion for summary judgment must be in writing, and “[i]ssues not
expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal.” Id.;
see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677
(Tex. 1979) (holding that under Rule 166a(c), “both the reasons for the
summary judgment and the objections to it must be in writing and
before the trial judge at the hearing”). Because issues, grounds, and
testimony in support of and in opposition to summary judgment may not
be presented orally, a reporter’s record of such a hearing is generally
unnecessary for appellate purposes. McConnell v. Southside Indep. Sch.
Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993); see also Schneider Nat’l
Carriers, Inc. v. Bates, 147 S.W.3d 264, 291 n.141 (Tex. 2004) (holding
that the trial court did not err in denying a party’s request for a court
reporter to transcribe the summary judgment hearing). 9
9 By the same token, appellate courts do not consult the reporter’s
record of a summary judgment hearing to determine the trial court’s grounds,
if any, for its ruling on a summary judgment motion. See Gonzales v.
Thorndale Coop. Gin & Grain Co., 578 S.W.3d 655, 657–58 (Tex. App.—
Houston [14th Dist.] 2019, no pet.).
17
Our holding today does not alter that general principle. As a
practical matter, sometimes summary judgment hearings are
transcribed, and sometimes they are not; the best practice for a party
objecting to summary judgment evidence is to secure a written order on
the objection from the trial court. But if no such order is issued, and the
reporter’s record of the hearing reveals an unequivocal oral ruling on the
objection, that ruling is sufficient for error-preservation purposes.
Here, Altech objected in writing to the G-Max report on
authenticity and other grounds, and the District was given an
opportunity to supplement the report before the summary judgment
hearing. As noted, the parties presented additional argument on the
objection at the hearing. The trial court then stated, “I’m . . . going to
sustain your objection and Altech’s motion for summary judgment is
granted.” No further written order was required, and, contrary to the
court of appeals’ conclusion, the G-Max report did not “remain[] a part
of the summary-judgment proof.” 634 S.W.3d at 94–95. 10 Accordingly,
the court of appeals erred in relying on the report to conclude that a
10 Altech alternatively argues that because the report is “wholly
unauthenticated,” it cannot serve as summary judgment evidence regardless
of whether Altech preserved error under Rule 33.1. We need not reach this
argument, but we note that the District responds by arguing, in part, that “the
report was not unauthenticated.” To the extent the District now argues that
the trial court erred in sustaining Altech’s objection to the report, the District
made no such argument in the court of appeals—in either its opening brief or
its reply brief. Instead, it argued only that the G-Max report remained a part
of the summary judgment record due to the absence of a written order. We will
not consider whether Altech’s objection to the report was improperly sustained
when the court of appeals was given no opportunity to do so. See In re K.A.F.,
160 S.W.3d 923, 928 (Tex. 2005).
18
genuine issue of material fact existed as to whether the turf’s G-Max
ratings exceeded those required by Altech’s warranty.
The District alternatively argues that even if the G-Max report is
not considered, the court of appeals’ judgment may nevertheless be
affirmed because the report was cumulative of other evidence attached
to Altech’s own summary judgment motion that created a fact issue on
the G-Max warranty claim. See Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215–16 (Tex. 2003) (to be entitled to summary
judgment under Rule 166a(c), the movant must show that no genuine
issue of material fact exists and that it is entitled to judgment as a
matter of law). Specifically, the District argues that the same fact
reflected in the G-Max report—that the field exceeded permissible
shock-absorption levels—was also reflected in Kunkel’s expert report,
which was attached as an exhibit to Altech’s motion. We disagree.
Kunkel opined in his report that G-Max testing of the District’s
field “indicat[ed] values exceeding the permissible levels as set forth in
the relevant standards and guidelines, such as ASTM, STC, FIFA, EN
etc.” The contract between Altech and the District required that the turf
fall within a specific G-Max rating range over the life of the warranty
(between 100 and 140), as measured in accordance with ASTM Standard
F355. Kunkel’s report generally references ASTM standards, but not a
particular standard, and is silent about the numerical result of any
G-Max testing. Although in reviewing a summary judgment we take as
true all evidence favorable to the nonmovant and indulge reasonable
inferences in the nonmovant’s favor, Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005), the inference the District would have
19
us draw is not a reasonable one. Reading Kunkel’s report to indicate
that the field’s G-Max rating exceeded 140 as measured in accordance
with ASTM Standard F355 would be impermissible speculation.
Accordingly, we hold that Kunkel’s report does not create a fact issue as
to the District’s G-Max warranty claim and does not provide an
independent basis on which to affirm the court of appeals’ judgment.
III. Conclusion
The court of appeals erred in partially reversing the trial court’s
summary judgment for Altech and in remanding the breach-of-warranty
claims against FieldTurf for a new trial without addressing the merits
of FieldTurf’s and the District’s issues on appeal. Accordingly, we
reverse those portions of the court of appeals’ judgment, reinstate the
trial court’s summary judgment for Altech, and remand the case to the
court of appeals to consider unaddressed issues.
Debra H. Lehrmann
Justice
OPINION DELIVERED: March 4, 2022
20