An objection to summary judgment evidence under the sham affidavit rule "is an objection complaining of a defect in form of [the] affidavit." Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.-Dallas 2006, no pet.);

Formal defects include objections to hearsay, lack of foundation, lack of personal knowledge, sham affidavit, statement of an interested witness that is not clear, positive direct, or free from contradiction, best evidence, self-serving statements, and unsubstantiated opinions. See Lagou v. U.S. Bank Nat'l Ass'n, No. 01-13-00311-CV, 2013 WL 6415490, at *4 (Tex. App.—Houston [1st Dist.] Dec. 5, 2013, no pet.) (mem. op.) (best evidence); S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.—Dallas 2011, no pet.) (self-serving); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.) (sham affidavit); Broadnax v. Kroger Texas, L.P., No. 05-04-01306-CV, 2005 WL 2031783, at *5 (Tex. App.—Dallas August 24, 2005, no pet.) (mem. op.) (lack of personal knowledge and hearsay); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.) (interested witness, hearsay, and lack of personal knowledge); Montemayor v. Chapa, 61 S.W.3d 758, 763 (Tex. App.—Corpus Christi 2001, no pet.) (unsubstantiated opinion); Rizkallah v. Conner, 952 S.W.2d 580, 585-86 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (lack of personal knowledge and competence). Substantive defects include an objection that the statements in the affidavit are conclusory or irrelevant.

A ruling is implicit if it is unexpressed, but capable of being understood from something else. Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.). There is nothing in the record by which we would be capable of understanding that the trial court implicitly denied Estrada-Davis's motion.

An objection that an affidavit is a sham because it contradicts the affiant's earlier deposition testimony is an objection about the form of the affidavit that requires a ruling to be preserved for review. Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 882 (Tex. App.—Dallas 2006, no pet.). And an objection that an affidavit was untimely disclosed under rule 193.6 is also an objection as to form.

See id Whether an affidavit constitutes a "sham affidavit" is a contention that there is a defect in form. See Wolfe v. Devon Energy Prod. Co., LP, 382 S.W.3d 434, 452 (Tex. App.-Waco 2012, pet. denied) (citing Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.-Dallas 2006, no pet.)). In the instant case, Pither objected to Hanson's affidavit as a "sham" and moved to strike it.

In its first issue, Essex contends that the trial court improperly sustained Beverly's objections to the summary judgment evidence it filed in response to Beverly's no-evidence motion for summary judgment because the objections were not filed until after the court had granted Beverly's motion, and they were, therefore, waived. To preserve objections to summary judgment evidence for appeal, a party asserting the objections must obtain a ruling at or before the summary judgment hearing. “As a prerequisite to presenting a complaint for appellate review, the record must show that ... the complaint was made to the trial court by a timely request, objection, or motion....” Tex.R.App. P. 33.1(a)(1); seeTex.R. Civ. P. 166a(f) (stating, “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”); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex.App.-Dallas 2006, no pet.); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex.1993) (holding that all issues must be expressly presented to trial court). Summary judgment evidence must be presented in a form that would be admissible at trial.

P. 33.1(a)(1); see TEX. R. CIV. P. 166a(f) (stating, "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"); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993) (holding that all issues must be expressly presented to trial court). Summary judgment evidence must be presented in a form that would be admissible at trial.

An objection that an "affidavit is a sham affidavit because it contradicts [the affiant's] earlier deposition testimony is an objection complaining to a defect in form of his affidavit." Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.). A party must object in writing and obtain an express or implied ruling from the trial court to preserve a complaint about the form of summary judgment evidence.

P. 33.1(a)(1); see TEX. R. CIV. P. 166a(f) (stating, "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"); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.-Dallas 2006, no pet.); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex. 1993) (holding that all issues must be expressly presented to trial court). Summary judgment evidence must be presented in a form that would be admissible at trial.

For the first time on appeal, the District objects to the form of Ray Sullivan's affidavit on the basis that it is a "sham affidavit" and should not have been considered by the trial court as summary judgment evidence because it contradicts his earlier deposition testimony. See Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.-Dallas 2006, no pet.) (providing that an objection that an "affidavit is a sham affidavit because it contradicts [the affiant's] earlier deposition testimony is an objection complaining to a defect in form of his affidavit"). "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."