Court of Appeals of Texas, Beaumont.

Hurshell MIDKIFF, Appellant,

v.

HANCOCK EAST TEXAS SANITATION, INC. and Dolgencorp of Texas, Appellees.

No. 09-97-351 CV.

|

Nov. 18, 1999.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

BURGESS.

*1 Justice Burgess delivered the opinion of the Court in two parts. Part I is joined by Justice Stover and Part II is joined by Chief Justice Walker. Chief Justice Walker delivered a dissenting opinion to Part I; Justice Stover delivered a dissenting opinion to Part II. The judgment of the trial court is REVERSED AND REMANDED as to Hancock East Texas Sanitation, Inc. in Part I, and AFFIRMED as to Dolgencorp of Texas in Part II.

This is an appeal from the granting of summary judgments in favor of appellees, Hancock East Texas Sanitation, Inc. (Hancock) and Dolgencorp of Texas (Dolgencorp). Appellant, Hurshell Midkiff, raises six issues. The first three attack the summary judgment in favor of Hancock and the final three attack the summary judgment granted to Dolgencorp. We reverse the summary judgment in favor of Hancock and affirm the summary judgment in favor of Dolencorp.

To obtain summary judgment, a movant must either negate at least one element of the plaintiff’s theory of recovery, or plead and conclusively establish each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Once the defendant produces sufficient evidence to establish the right to summary judgment, the plaintiff must present evidence sufficient to raise a fact issue. Id. Evidence favorable to the non-movant must be accepted as true and every reasonable inference indulged in the non-movant’s favor. Id.

A brief summary of the facts, which are not in dispute, is in order. Midkiff was employed by Hancock to pick up garbage at various residential and commercial locations. On September 12, 1994¹, he was making a pick-up at the Dollar General Store location in Kirbyville, Texas, when he injured himself as he stepped down from his truck. A concrete block had apparently been placed into a hole located behind the Dollar General Store building in the alleyway where the trash bin was located. Midkiff fell when he stepped onto the concrete block. The subsequent lawsuit against Hancock is based on simple negligence and gross negligence, while the allegations against Dolgencorp included negligence, gross negligence, and maintaining a private nuisance. Midkiff later non-suited the gross negligence and private nuisance allegations against Dolgencorp.

PART I Hancock’s Summary Judgment

At the time of Midkiff’s injury, Hancock was not a subscriber under the Texas Workers’ Compensation Act. See Tex.Lab.Code Ann. § 406.002 (Vernon 1996). On December 30, 1994, Midkiff signed an instrument entitled, ‘Occupational Accident Employee Welfare Benefit Plan Agreement’ (agreement). Under the heading, ‘Rights And Responsibilities,’ pertinent portions of the agreement read as follows:

As a result of the Company not having workers’ compensation insurance coverage, you may have certain rights under the common laws of Texas for damages arising out of work-related illness or injury. If, however, you choose to participate in the Company’s Occupational Accident Employee Welfare Benefit Plan by requesting the benefits provided by the Plan, you hereby agree to accept the Plan benefits as the only benefits you are entitled to receive in the event of a work-related injury and to waive any and all other causes of action, claims, rights, and demands that you could make against the Company, its successors, assigns, employees, officers, directors, shareholders, agents and clients….

*2 By my signature below, I acknowledge that this non-subscriber program has been explained to me, and that I was given the opportunity to ask questions, have my questions answered, and to make comments. It was further explained to me that my employment and/or my continued employment was not conditional upon the execution of this Agreement, but that by my execution of this Agreement I am agreeing to comply with the terms of the Plan and this Agreement. I understand that participation in the Plan is not compulsory, and understanding that, I hereby agree to participate in the Plan and to receive the benefits provided to me by the Company through this Occupational Accident Employee Welfare Benefit Plan. I also understand that, by executing this Agreement, I have waived certain claims and rights as stated herein.

The basis for Hancock’s motion for summary judgment was that, by agreeing to participate in the company’s benefit plan under the terms of the agreement, Midkiff waived any common law causes of action against Hancock arising from an on-the-job injury. In support of this position, Hancock submitted an affidavit from Mike Hancock, president of Hancock. In his affidavit, Hancock stated that at the time of his signing of the agreement, Midkiff ‘was already receiving benefits under the plan for the injury he allegedly sustained on September 12, 1994 while in the course and scope of his employment for Hancock East Texas Sanitation, Inc.’ In further support of its position, Hancock’s motion for summary judgment also included a deposition excerpt taken from Midkiff in which he testified as follows:

Q.[Counsel for Hancock] Is that your signature on that document that’s been marked as Exhibit No. 13?

A. Yes, sir.

Q. Did you sign that on December the 30th, 1994?

A. Yes, sir.

Q. The date that’s on it?

A. Yes, sir.

Q. Why did you sign that?

A. I was told that if it wasn’t signed and sent into the insurance company, that all my benefits would cease.

Q. Had you been drawing weekly checks up to that point?

A. Yes, sir.

Q. And after you signed that, did you continue drawing weekly benefits?

A. Yes, sir.

Q. Did you read it before you signed it?

A. No, sir.

Q. Were you given an opportunity to read it?

A. Oh, yes, sir. I’m sure I was.

In response to Hancock’s motion for summary judgment, Midkiff contends that the agreement is not a bar to his recovery because it was executed after he sustained his injuries, and further contends the wording of the agreement itself speaks in terms of prospective application only. As a general rule, if an employer chooses non-subscriber status for purposes of providing workers’ compensation-like coverage, such a voluntary plan is purely a matter of contract, and the rights and obligations of the parties are measured by the contract. Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 727 (Tex.App.-San Antonio 1999, pet. filed). The agreement in question does not have any effective date other than the date it was signed. However, a reasonable reading of the following language:

*3 If, however, you choose to participate in the Company’s Occupational Accident Employee Welfare Benefit Plan by requesting the benefits provided by the Plan, you hereby agree to accept the Plan benefits as the only benefits you are entitled to receive in the event of a work-related injury and to waive any and all other causes of action, claims, rights, and demands that you could make against the Company, its successors, assigns, employees, officers, directors, shareholders, agents and clients….

indicates the agreement will be prospective and not cover nor affect the August 2, 1994 injury. Midkiff included his affidavit with his response to Hancock’s motion for summary judgment. Portions of that affidavit stated:

3. At the time I signed the aforementioned Agreement, I believed that the agreement applied only to incidents which occurred after the date of the agreement, December 30, 1994.

4. At the time I signed the aforementioned Agreement, I did not have any intent to relinquish my right to any common law or statutory claim against my employer, Hancock East Texas Sanitation, Inc. for injuries suffered as a result of the accident of August [sic] 2, 1994.

At the very least, a fact issue is raised as to Midkiff’s understanding and intent at the time he signed the agreement.

Furthermore, Hancock’s testimony that: ‘I was told that if it wasn’t signed and sent into the insurance company, that all my benefits would cease’ raises a fact issue whether the agreement was signed as a result of coercion or duress.

Consequently, we sustain Midkiff’s first and third issues and reverse the summary judgment in favor of Hancock. Having done so, we need not consider Midkiff’s second issue.

PART II Dolgencorp’s Summary Judgment

The fourth issue complains that Dolgencorp’s supporting summary judgment evidence should have been stricken by the trial court and not considered. The record reflects that Midkiff filed a written motion to strike that evidence. However, the record does not reflect that the trial court ever ruled on said motion. Tex.R.Civ .P. 166a(f) provides, in pertinent part, ‘Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.’ This provision has been held to mean that the objecting party must obtain a ruling on an objection to defects of form of an affidavit or the objection is waived. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex.1993); Mathis v. Bocell, 982 S.W.2d 52, 58 (Tex.App.-Houston [1st Dist.] 1998, no pet.). After closely researching this particular area of the law, we heartily agree with the observations of the Houston Court in Mathis, viz:

There is conflicting authority concerning the difference between a defect of substance and a defect of form in summary judgment evidence. Among the courts of appeals, there is contradiction, if not confusion, distinguishing the two. Rule 166a(f) refers only to ‘defect of form’: there is no mention of its counterpart, defect of substance. The application of one or the other is crucial because formal defects must be objected to and ruled upon by the trial court, while substantive defects may be raised for the first time on appeal.

*4 Id. at 59.

With this said, we now turn to the specific objections made by Midkiff. Midkiff’s motion first complained of the affidavit of Jimmie Cofty ‘in which the affiant is clearly identified as an interested witness who was allegedly ‘not … aware of any risk … as a result of the pot-hole ….‘ Midkiff contends that such a statement from an interested witness testifying about what he knew or intended is not readily controvertible and therefore will not support a motion for summary judgment. Case law holds that affidavits of interested witnesses present a defect of form, rather than one of substance, requiring an objection and ruling in the trial court.² See Ahumada v. Dow Chemical Co., 992 S.W.2d 555, 562 (Tex.App.-Houston [14th Dist.] 1999, no pet. h.). Furthermore, we have held a similar type of affidavit from an otherwise interested witness to have been readily controvertible by the opposing party. See Patterson v. Mobiloil Federal Credit Union, 890 S.W.2d 551, 554 (Tex.App.-Beaumont 1994, no writ). See also Spencer v. City of Dallas, 819 S.W.2d 612, 618-19 (Tex .App.-Dallas 1991, no writ). We find Cofty’s affidavit to be generally competent summary judgment evidence. As such, any alleged defect would be one of form only requiring appellant to have obtained a ruling on the defects alleged. The objection to Cofty’s affidavit is waived.

Next, Midkiff complains that the copy of the lease agreement between Dolgencorp and its lessor was incomplete because the copy does not include certain things identified in the lease as ‘Exhibit A’ and ‘Exhibit B.’ Midkiff further contends that the copy of the lease is hearsay and ‘is not the best evidence.’ Finally, Midkiff contends that because the copy of the lease is missing certain items, the affidavit by Tom Holsted swearing that the copy is a true and correct copy of the lease is not credible and free from contradictions and inconsistencies. We must again conduct a ‘defect of form’ versus ‘defect of substance’ analysis of the evidentiary items in question. Hearsay in a summary judgment affidavit is a defect of form. Wilson v. General Motors Acceptance Corp., 897 S .W.2d 818, 822 (Tex.App.-Houston [1st Dist.] 1994, no writ). An alleged defect in the affiant’s competency is also a defect of form. See Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 161 (Tex. App .-Waco 1995, no writ). Copies of original documents are acceptable summary judgment proof if accompanied by a sworn affidavit that they are true and correct. Cornerstones Mun. Utility Dist. v. Monsanto Co., 889 S.W.2d 570, 578 (Tex.App.-Houston [14th Dist.] 1994, writ denied). In the instant case, Holsted’s affidavit indicated that he was the director of real estate for Dolgencorp and that the lease was in effect on the date of appellant’s injury and that it was a ‘true and correct copy.’ We believe any complaint going to the copy of the lease in question to be one of defect of form.

*5 We conclude that all of Midkiff’s complaints as to Dolgencorp’s summary judgment evidence were to defects of form. Even if properly objected to, any summary judgment evidence containing defects of form will remain part of summary judgment evidence unless an order sustaining the objections is reduced to writing, signed, and entered of record. Peerenboom, 910 S.W.2d at 160. Because Midkiff did not have his motion to strike ruled upon in writing and entered of record, the objections are waived and we now consider Dolgencorp’s motion for summary judgment, including all affidavits and attachments. This issue is overruled.

As alluded to earlier, Midkiff’s sole cause of action against Dolgencorp was for negligence. In determining whether a cause of action for negligence exists, the threshold question is whether the defendant owed the plaintiff a legal duty. Smith v. Merritt, 940 S.W.2d 602, 604 (Tex.1997). Whether a duty exists is a question of law for the court to decide under the facts surrounding the occurrence in question. Lefmark Management Co. v. Old, 946 S.W.2d 52, 53 (Tex.1997). In its motion for summary judgment, Dolgencorp contends that it owed no duty to Midkiff. In support of this contention, Dolgencorp attached a verified copy of a lease between Dolgencorp as lessee and Frances Reed as lessor. The following are portions of the lease pertinent to the issue of Dolgencorp’s duty:

I. PREMISES. Lessor represents and warrants that it owns lawful fee simple title to the Shopping Center Premises in which the demised premises are located and which are more particularly described as follows: See Exhibit ‘A’ attached hereto and made a part hereof. Lessor hereby leases unto Lessee on the following terms and conditions a storeroom containing approximately 6210 square feet, inside dimensions (the ‘demised premises’), located in and a part of ‘an unnamed’ Shopping Center, which entire Shopping Center is shown on the Plot Plan attached hereto as Exhibit ‘B’ and made a part hereof, with the demised premises being outlined in red thereon together with each and every appurtenance thereto, which Shopping Center is located at 301 E. Main Street, in the City of Kirbyville, County of Jasper, and State of Texas 75956. (emphasis added)

….

IV. COMMON AREA. The entire tract of land on which Lessor has constructed the Shopping Center is shown on the plot plan attached to and made a part hereof. Such plot plan designates the location and size of all buildings constructed, store sizes, parking area, which shall be sufficient for adequate parking of customer cars, customer parcel pickup facilities, and Lessee’s delivery service areas. All that portion of the tract of land not covered by buildings is to be Common Area for the joint use of all tenants, customers, invitees, and employees…. Lessor agrees at its own expense, to maintain all Common Area in good repair, to keep such area clean, to remove snow and ice therefrom, to keep such area lighted during hours of darkness when the demised premises are open for business and to keep the parking area properly striped to assist in the orderly parking of cars. Any claims for damage to property and any claims arising from or out of the injury or death of any person while on the Common Area shall be the responsibility of Lessor, and Lessor agrees to carry comprehensive general liability insurance, with Lessee named as an additional insured, on the Common Area, …. (emphasis added)

*6 V. MAINTENANCE. Lessor represents and warrants that the demised premises and the entire Shopping Center: (1) are well built, properly constructed, structurally safe and sound; (2) during the term of this Lease and any renewals hereof, it will so maintain them; and, (3) the entire Shopping Center and the demised premises conform to all applicable requirements of the Americans with Disabilities Act of 1990,…. Lessor shall maintain at its cost and expense in good condition and shall perform all necessary maintenance, repair, and replacement to the exterior of the premises including, but not limited to, the roof, all paved areas, foundation, floors, walls, all interior and exterior utility lines and pipes, and all other structural portions of the building during the term of this Lease and any renewal periods. Lessee assumes liability for damage to plate glass windows and doors except when caused by latent defects, or Lessor, its agents, employees, or contractors. Lessee shall maintain the interior of the premises during the term of this Lease and any renewal periods and shall return the building to Lessor thereafter in its same condition, ordinary wear and tear excepted. Lessor has the right and responsibility to enter the demised premises periodically, at any reasonable time, to inspect the condition of the premises and to make repairs. All repairs, restorations, or payments which are obligations of Lessor, shall be completed or made within a reasonable time…. (emphasis added)

A lessee’s responsibility for areas adjacent to the demised premises is limited to those areas which it actually controls. Wal Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex.1993). By the explicit terms of the lease set out above, Dolgencorp only occupied the Dollar General Store building, and the lessor reserved complete control of all common areas with regard to maintenance and repair. This included the maintenance and repair of the ‘roof,’ ‘all paved areas,’ and the ‘foundation’ of the demised premises. In Howe v. Kroger Co., 598 S.W.2d 929, 930 31 (Tex.Civ.App.-Dallas 1980, no writ), the Dallas Court held that where a lessor had agreed to maintain common areas and the lease defined common area as all tracts of land not covered by buildings, a sidewalk was an area over which the lessee had no control and thus no duty to repair or warn, and therefore could not be liable to a person who slipped and fell on accumulated ice and snow on the sidewalk outside of the store.

Midkiff, in his appellate brief, contends that because he was an invitee, Dolgencorp owed him ‘substantial duties.’ He designates Dolgencorp as a ‘possessor’ of ‘the land in question.’ Midkiff misses the distinguishing factor that creates a duty on the part of a ‘possessor’ or ‘occupier’ of a premises, that being actual control of the area where the injury occurred. He attempts to use Wal Mart Stores, Inc. v. Alexander in his favor by contending that the Court expressly imposed a duty to maintain a parking lot onto the lessee in spite of the fact that the lease provided that the lessor retained possession of the parking lot, sidewalks, and other common areas. However, the facts in Wal Mart are distinguishable from those of this case. As set out in the opinion, on its own initiative, Wal Mart built the ramp upon which the plaintiff tripped after having leased the premises. Id. at 324. Furthermore, Wal Mart’s management knew about the tripping hazard well before the plaintiff injured herself. Id. This information went all the way up to Wal Mart district management prior to the plaintiff’s accident. Id. The hazard was only repaired after the plaintiff sustained her injury. Id. Because of these facts, the Supreme Court held that by physically altering the original design of the sidewalk/parking lot area by building the ramp after having leased the premises, Wal Mart assumed actual control of the ramp area. A duty of reasonable care to maintain the safety of the ramp by Wal Mart was created based upon its actual control of the ramp area. Id. at 325.

*7 In this case, Midkiff did not provide any summary judgment response evidence that indicates that Dolgencorp took actual control over any physical alterations, maintenance, or repairs of the portion of the alleyway where Midkiff sustained his injuries. There is no evidence as to who placed the concrete block in the hole. The only apparent use of the alleyway by Dolgencorp was for its employees to get to the trash bins where the store’s trash was dumped. Furthermore, the uncontroverted statement from Jimmie Cofty, the store manager, indicated that in his capacity as store manager, he ‘did not become aware of any risk to the health of any employee, customer, or other person as a result of the ‘pot-hole’ which was located outside the leased premises.’ We find that Dolgencorp proved, as a matter of law, that it owed no duty to Midkiff to warn, maintain, or repair the area adjacent to the store where he was injured. Because Midkiff submitted no evidence raising a fact issue on this point, we overrule his fifth and sixth issues. The summary judgment granted by the trial court in favor of Dolgencorp is affirmed.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART.

WALKER.

DISSENTING OPINION TO PART I

Respectfully, I dissent to Part I of the majority opinion. The summary judgment in favor of Hancock should be sustained, and all three of Midkiff’s issues related to Hancock should be overruled.

In response to Hancock’s motion for summary judgment, Midkiff contended that the agreement is not a bar to his recovery because it was executed after Midkiff sustained his injuries, and further contends the wording of the agreement itself speaks in terms of prospective application only. Midkiff did not provide authority for this proposition in his summary judgment response, nor did he provide any authority for the identical appellate issue contained in his brief. The appellant has waived discussion of his first issue because of this inadequate briefing. Tex.R.App. P. 38.1(h).

In considering the majority’s analysis of issue one, however, one should review not just the contract but also the conduct of the parties, which was seemingly overlooked by the majority. As a general rule, if an employer chooses non-subscriber status for purposes of providing workers’ compensation-like coverage, such a voluntary plan is purely a matter of contract, and the rights and obligations of the parties are measured by the contract. Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 727 (Tex.App.-San Antonio 1999, pet. denied). In construing a contract, a court need not embrace strained rules of construction to avoid ambiguity at all costs. Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996). The primary concern of contract construction is to ascertain the true intent of the parties as expressed in the written instrument. Id. However, the determination of whether there was a meeting of the minds is based on objective standards of what the parties said and did and not on their alleged subjective states of mind. Adams v. Petrade Int’l, Inc., 754 S.W.2d 696, 717 (Tex.App.-Houston [1st Dist.] 1988, writ denied).

*8 The agreement here does not limit benefits eligibility to injuries sustained after electing to belong to the plan, and the conduct of the parties makes it clear that no such limitation was intended. Both Midkiff and Hancock agree that at the time Midkiff signed the agreement Midkiff already was receiving benefits for his injuries. Hancock’s evidence further indicates that the source of the benefits was the plan itself. Through his own testimony, Midkiff admits signing the agreement so that the benefits he was receiving would continue. Then he initiated the instant lawsuit on May 29, 1996, some one and one-half years after signing the agreement. The appellant is trying to have it both ways-he accepted and retained the benefits of the plan, but wants to sue also. It has long been the rule that a party cannot accept that part of a contract beneficial to the party and deny the application of other provisions which may be detrimental or disadvantageous. One who accepts the benefit of a contract must also assume its burdens. See Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892, 895 (1960); City of Odessa v. Barton, 939 S.W.2d 707, 712 (Tex.App.-El Paso 1997), rev’d on other grounds, 967 S.W.2d 834 (Tex.1998).

Further, within the context of all of the evidence before us, it would be unreasonable to infer coercion or duress on the part of Hancock from the single sentence, ‘I was told that if it wasn’t signed and sent into the insurance company, that all my benefits would cease.’ For all of the reasons discussed, I find that Midkiff has failed to raise a fact issue in support of his contention that the agreement was meant to be prospective only. I further find that, on its face, the agreement may reasonably be construed to become effective immediately upon execution. I would overrule issue one.

Midkiff’s second issue contends the agreement was invalid as it was in violation of Tex. Lab.Code Ann. § 406.035 (Vernon 1996), and because it lacked consideration. Section 406.035 is entitled, ‘Waiver of Compensation Prohibited,’ and provides the following: ‘Except as provided by this subtitle, an agreement by an employee to waive the employee’s right to compensation is void.’ I agree with the holding in Martinez v. IBP, Inc., 961 S.W.2d 678, 682 (Tex.App.-Amarillo 1998, pet. denied), that section 406.035 pertains to only employees of a subscribing employer. As Hancock is a non-subscriber, section 406.035 does not apply to the appellant. With regard to consideration, it is defined as ‘either a benefit to the promisor or a loss or detriment to the promisee. Surrendering a legal right represents valid consideration.’ See Northern Nat. Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex.1998)(quoting Receiver for Citizen’s Nat’l Assurance Co. v. Hatley, 852 S.W.2d 68, 71 (Tex.App.-Austin 1993, no writ). The promise by Hancock to provide benefits to injured employees who sign on to the plan in exchange for the employees’ relinquishing their rights to judicial review of claims represents valid consideration. I would overrule issue two.

*9 Issue three claims trial court error in granting Hancock’s summary judgment because Midkiff did not intend to waive his common law causes of action by signing the agreement. Midkiff cites us to his affidavit containing the blatantly conclusory statement, ‘At the time I signed the aforementioned Agreement, I did not have any intent to relinquish my right to any common law or statutory claim against my employer, Hancock East Texas Sanitation, Inc. for injuries suffered as a result of the accident of August (sic) 2, 1994.’ Conclusory statements contained in an affidavit are not competent to serve as summary judgment evidence. Texas Division Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). Further, one who signs a contract must be held to have known what words were used in the contract and to have known their meaning, and he must also be held to have known and fully comprehended the legal effect of the contract. Reyes, 995 S.W.2d at 725. Indeed, ‘[a]bsent proof of mental incapacity, a person who signs a contract is presumed to have read and understood the contract, unless he was prevented from doing so by trick or artifice.’ See Vera v. North Star Dodge Sales, Inc ., 989 S.W.2d 13, 17 (Tex.App.-San Antonio 1998, no pet.). Here, no summary judgment evidence suggests Midkiff either lacked the mental capacity to contract or signed the agreement as a result of ‘trick or artifice.’ Accordingly, his actual understanding of the effect of what he signed is immaterial. See Vera, 989 S.W.2d at 17. By signing the agreement, Midkiff indicated that he understood that he ‘waived certain claims and rights as stated herein.’ Being incompetent summary judgment evidence, appellant’s statement does not raise a fact issue with regard to waiver. Summary judgment in favor of Hancock was proper. I would overrule issue three.

STOVER.

DISSENTING OPINION TO PART II

I respectfully dissent from the majority’s holding that Midkiff, as non-movant, waived his objections to Dolgencorp’s summary judgment evidence by failing to obtain a ruling on such objections. In my opinion, under the new rules of appellate procedure, in granting the motion for summary judgment the trial court implicitly overruled Midkiff’s objection. See Tex.R.App. P. 33.1.³ See, e.g., Frazier v. Yu, 987 S.W.2d 607, 609-10 (Tex .App.-Fort Worth 1999, pet. denied); Harris v. Spires Council of Co Owners, 981 S.W.2d 892, 898 99 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (O’Connor, J., dissenting).

	Footnotes
1		The record varies as to whether the accident occurred August 2, 1994 or September 12, 1994. This variance is immaterial to the legal analysis.
2		Although certain deficiencies are labeled ‘substantive defects,’ it is more accurate to describe them as deficiencies that cause the document to have no evidentiary value. As such, it is simply not evidence, and therefore has no evidentiary value and could not properly be considered on appeal. See Cain v. Rust Indus. Cleaning Services, Inc., 969 S.W.2d 464, 467 n. 6 (Tex.App .-Texarkana 1998, pet. denied).
3		33.1 Preservation; How Shown. (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: … (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly [.] (emphasis added).