In Lance v. Robinson, No. 16-0323, 2018 Tex. LEXIS 246 (Mar. 23, 2018), the Texas Supreme Court confirmed that when deciding a summary judgment motion, a court may consider evidence not attached to the motion as long as the evidence is on file with the trial court at the time of the hearing.

Lance involved a dispute over property rights near Medina Lake west of San Antonio. The trial court granted plaintiffs’ summary judgment motion seeking a declaratory judgment interpreting several deeds.

The defendants appealed, arguing there was no evidence to support the motion because the plaintiffs failed to attach the deeds to it. The court of appeals affirmed, holding that any defect in the summary-judgment evidence was not substantive and thus defendants waived any error by failing to object.

The Texas Supreme Court affirmed, reasoning that it was irrelevant whether the deeds were attached to the motion because Rule 166(c) only requires that the evidence be on file at the time of the hearing. Because the deeds were filed with the trial court in an earlier injunction hearing and thus were on file at the time of the summary judgment hearing, the Court found that they were properly considered by the trial court.