Honorable Aaron Haas, Judge Presiding Opinion by: Irene Rios, Justice Concurring Opinion by: Rebeca C. Martinez, Chief Justice Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice Delivered and Filed: December 23, 2024 AFFIRMED Appellant John Schumacher appeals the trial court’s final summary judgment declaring appellee Charles Trois as the sole, rightful owner of a painting known as “Barely There” by Robert Rauschenberg. On appeal, Schumacher argues the trial court erred when it: (1) sustained Trois’s objections to Schumacher’s summary judgment evidence; and (2) granted Trois’s motion for summary judgment. We affirm. We sua sponte submitted this case en banc to reevaluate our preservation precedent and to clarify what is required to preserve appellate review of a trial court’s ruling when the trial court sustains objections to summary judgment evidence. Background Trois filed suit seeking, among other things, a declaration that he is the owner of an art piece called “Barely There” by Robert Rauschenberg (“the painting”). Trois was the beneficiary of a friend’s estate that purportedly held title to real property in Belize. In December 2010, Schumacher traded the painting and other unspecified items in exchange for whatever right of inheritance Trois had in the Belize property. Trois granted Schumacher a power of attorney to probate the late friend’s will in Belize so that he could acquire the property. The record does not reflect Schumacher made any effort in the probate courts of Belize to secure title to the property. In 2017, Trois engaged a company called Southwest Museum of Art (“Southwest”) to sell the painting. The agreement provided for Southwest to establish provenance of the painting and secure a buyer within one year. Southwest would earn a commission on the sale if the painting sold within the year. After Southwest was unable to sell the painting, Trois demanded the painting be returned to him. Southwest’s owner, Tony Webber, responded that he had determined Schumacher was the rightful owner of the painting and claimed Southwest gave the painting to Schumacher. Webber claims he discovered—many years after the trade between Trois and Schumacher—the title to the Belize property held by Trois’s late friend was declared void by the Supreme Court of Belize. Because Webber believed Trois did not comply with the agreement, he determined the painting belonged to Schumacher. In the underlying litigation, Trois filed a motion for partial summary judgment on his action for declaratory relief regarding ownership of the painting. Trois attached as summary judgment evidence his own affidavit showing that he acquired the painting from Schumacher as consideration for the trade. Schumacher responded claiming the trade was “invalid” because Trois never owned the Belize property nor was Trois authorized to dispose of the Belize property. Because there was a lack of consideration, Schumacher argued, the agreement to trade the property for the painting failed and Schumacher remained the rightful owner of the painting. Schumacher further argued a genuine issue of material fact exists as to who owns the painting because both Trois and Schumacher each claim to be the rightful owner of the painting. The only evidence attached to Schumacher’s summary judgment response was his own affidavit attesting to the lack of consideration. Trois filed objections to nearly every sentence in Schumacher’s affidavit. The trial court sustained each of Trois’s objections to Schumacher’s affidavit. Consequently, Schumacher’s affidavit contained minimal competent evidence. The trial court determined Schumacher’s admissible summary judgment evidence did not raise a genuine issue of material fact and granted Trois’s summary judgment declaring Trois the sole and rightful owner of the painting. The trial court severed the action for declaratory relief. Schumacher appeals the trial court’s final summary judgment. Summary Judgment Standard of Review We review a trial court’s ruling on a summary judgment motion de novo. Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018). To prevail on a traditional summary judgment motion, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). “If the movant carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment.” Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). In reviewing a trial court’s summary judgment ruling, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. Knott, 128 S.W.3d at 215. Discussion In two issues, Schumacher appeals: (1) the trial court’s order sustaining Trois’s objections to Schumacher’s summary judgment evidence; and (2) the trial court’s order granting Trois’s motion for summary judgment. We first determine whether Trois met his summary judgment burden. Trois’s Summary Judgment Burden Trois filed a motion for summary judgment asserting he is entitled to a declaratory judgment that he is the sole owner of the painting. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.003. The summary judgment motion asserted that Trois acquired the painting pursuant to a trade with Schumacher more than ten years earlier. Trois maintains he has been the sole and rightful owner of the painting since the trade. As summary judgment evidence, Trois attached to his motion his own affidavit and a transcript of Webber’s testimony from a temporary injunction hearing. Schumacher did not object to Trois’s summary judgment evidence. Trois’s affidavit stated: My name is Charles Trois. I am an adult over the age of 18 years and of sound mind, and am fully capable of making this Declaration. I have personal knowledge of the facts stated herein, and they are all true and correct. In or around the year 2009, I acquired a painting by Robert Rauschenberg titled “Barely There” (“the Painting”) from a man named John Schumacher as part of a trade. Under this trade, I gave Mr. Schumacher whatever right, title, or interest I had in real property belonging to [the] estate of one Peter Stein in Belize. In exchange, he gave me the Painting and some other items. I took possession of the Painting at that time and kept it at my home until sometime in or around 2017 when I delivered it to Tony Webber of Southwest Museum Services so that it could be sold pursuant to an agreement[] I made with him and his son, Vincent Webber. At no time during my possession of the Painting did John Schumacher ever claim any sort of interest in the Painting, even though I had many interactions with him over the years. In fact, Mr. Schumacher served as an expert witness for me in a case in Ohio against Apple Tree Auction Company in or around 2018. He never once told me he was the owner of the [P]ainting or that he wished to rescind the agreement. Trois’s affidavit establishes that he received the painting from Schumacher in exchange for whatever claim he may have from Peter Stein’s estate for the Belize property. Importantly, the affidavit does not state Trois agreed to give Schumacher title to the property as part of the trade; instead, the affidavit asserts Trois agreed to give Schumacher “whatever right, title or interest” Trois had in the Belize property arising from his inheritance of Stein’s estate. The affidavit further states Trois had possession of the painting from 2009 until 2017 when he delivered it to Webber as part of the agreement for Southwest to sell the painting for Trois. The transcript of Webber’s testimony reflects that Webber acquired the painting to use it as collateral for a loan and to attempt to sell the painting. Webber’s testimony from the transcript acknowledged that Trois demanded Webber return the painting in 2019 and Webber refused to return the painting. Instead, Webber gave the painting to Schumacher because Webber opined there was an issue with the title to the Belize property and Trois did not “make good on the sale” with Schumacher. Finally, Webber stated in his temporary injunction testimony that Trois never authorized him to deliver the painting to Schumacher. Here, Trois’s summary judgment evidence establishes that he traded whatever interest he had in the Belize property to Schumacher for the painting. Trois maintained possession of the painting until he entered into an agreement whereby Webber’s business would sell the painting for Trois. In 2019, Trois demanded Webber return the painting only to discover Webber had delivered the painting back to Schumacher. Schumacher did not ever claim ownership of the painting while Trois possessed it and never sought to rescind the agreement he made with Trois. Based on this evidence, Trois has met his summary judgment burden establishing he is the owner of the painting. The burden then shifted to Schumacher to raise a genuine issue of material fact precluding summary judgment. See Lujan, 555 S.W.3d at 84. Schumacher’s Summary Judgment Response In his summary judgment response, Schumacher contended Trois signed a written agreement to sell and trade the painting in exchange for real property in Belize in December of 2010. Schumacher argued Trois “did not (i) have ownership of the real property; (ii) provide [Schumacher] with documents showing legal ownership of the real property; or (iii) have the legal authority to dispose of the [real] property, and therefore the trade [of] the real property for the [p]ainting is invalid.” Thus, Schumacher asserted in his response that he is the sole and rightful owner of the painting. Schumacher argued there is a genuine issue of material fact because both Trois and Schumacher each claim ownership of the painting. The only evidence attached to Schumacher’s summary judgment response was his own affidavit. The affidavit, in its entirety, stated: My name is John Schumacher. I am at least 18 years of age, of sound mind, capable of making this affidavit, and fully competent to testify to the matters stated in this affidavit. I have personal knowledge over each of the matters stated in this affidavit and Defendant['s] Response to Plaintiff’s Motion for Partial Summary Judgment, and each of the matters stated in this affidavit and in Defendant['s] Response to Plaintiff’s Motion for Partial Summary Judgment are true and correct. I signed a Bill of Sale that traded a Robert Rauschenberg painting to Mr. Charles Trois, for a five (5) acre plot of land in Belize on December 3, 2010. As a condition of the trade, I was to send Mr. Trois a letter with information on the painting and he in return would send me the legal documents regarding the Belize property. Subsequently, I found out that Mr. Trois did not have the legal authority to convey to me the subject real property in Belize. Mr. Trois made false claims to me regarding the ownership of the real property and never furnished a valid legal deed transferring ownership of the subject real property to me, despite my repeated requests for it. The real property was in fact owned by other parties. The real property was the basis of a lawsuit in the Supreme Court of Belize in 2011 and 2013 and was resolved in July of 2014. This affidavit is submitted in support of Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment and Severance herein for the purpose of showing that there [are] in this action genuine issues of material fact. As a result, I request that the Plaintiff’s Motion for Partial Summary Judgment and for Severance be denied. Trois filed written objections to nearly every sentence of Schumacher’s affidavit. The trial court sustained all of Trois’s objections to Schumacher’s affidavit. The trial court determined the remaining statements—after striking the statements it deemed inadmissible or incompetent—did not raise a genuine issue of material fact. As such, the trial court granted Trois’s motion for summary judgment declaring Trois the sole and rightful owner of the painting. On appeal, Schumacher contends the trial court erred in its evidentiary rulings. Schumacher argues the struck portions of his affidavit are admissible and competent summary judgment evidence that raise a genuine issue of material fact as to who is the sole and rightful owner of the painting. Therefore, he argues the trial court erred when it granted Trois’s motion for summary judgment. Preservation In his brief, Trois argues Schumacher waived his right to appellate review of the trial court’s evidentiary rulings. Before we address the merits of Schumacher’s appeal, we must first determine if Schumacher was required to take further steps to preserve appellate review of the trial court’s order striking portions of his summary judgment evidence. Trois contends Schumacher was required to object to the trial court’s evidentiary rulings sustaining Trois’s objections to preserve appellate review of those rulings. To support his contention, Trois cites Mangione v. Gov’t Pers. Mut. Life Ins. Co., No. 04-01-00655-CV, 2002 WL 1677457, at *4–5 (Tex. App.—San Antonio July 24, 2002, pet denied) (mem. op., not designated for publication).[1] Trois correctly notes the Mangione court held the appellants in that case waived appellate review when they did not take further steps to object to the trial court’s ruling striking evidence attached to their summary judgment response. See id. However, Mangione is not precedential and is not binding on this court. See TEX. R. APP. P. 47.7(b) (“Opinions and memorandum opinions designated ‘do not publish’ under these rules by the courts of appeals prior to January 1, 2003 have no precedential value but may be cited with the notation, ‘(not designated for publication).’”). Nevertheless, in a case that is precedential, we have previously held that a nonmovant waived appellate review of a trial court’s order sustaining objections to summary judgment evidence when the appellant failed to file written responses to the objections or failed to file a reporter’s record showing the appellant objected to the trial court’s ruling. See Villejo Enters., LLC v. C.R. Cox, Inc., No 04-19-00882-CV, 2021 WL 185528, at *2 (Tex. App.—San Antonio Jan. 20, 2021, no pet.) (mem. op.). In reaching that holding, we relied on Cantu v. Horany, 195 S.W.3d 867 (Tex. App.—Dallas 2006, no pet.), a non-binding authority from one of our sister courts. We favorably cited the Cantu court’s holding that when “a party fails to object to the trial court’s ruling that sustains an objection to his summary judgment evidence, [the party] has not preserved the right to complain on appeal about the trial court’s ruling.” See Cantu, 195 S.W.3d at 871 (citing Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878 (Tex. App.—Dallas 1990, no writ)). Citing Browder v. Moree, 659 S.W.3d 421 (Tex. 2022), a Texas Supreme Court case, Schumacher argues he was not required to object to the trial court’s ruling sustaining Trois’s objections to his summary judgment evidence to preserve appellate review of the evidentiary rulings. Trois argues Browder does not apply here because it dealt with a trial court’s adverse ruling to a jury demand, not an adverse ruling on objections to summary judgment evidence. Under stare decisis, “three-judge panels must follow materially indistinguishable decisions of earlier panels of the same court unless a higher authority has superseded that prior decision.” Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022). “Typically, higher authority includes a decision from the U.S. Supreme Court, [the Texas Supreme Court], or the Court of Criminal Appeals; an en banc decision of the court of appeals itself; or an applicable legislative or constitutional provision.” Id. at 256–57. We recognize Browder is not exactly on point because, as Trois correctly notes, Browder did not address preservation of an adverse ruling to summary judgment evidence. However, the supreme court broadly stated in Browder that “neither our procedural rules nor this Court’s decisions require a party that has obtained an adverse ruling from the trial court to take the further step of objecting to that ruling to preserve it for appellate review.” Browder, 659 S.W.3d at 423. Because Browder is not directly on point with the case at bar, we would normally be bound by the precedent in Villejo Enterprises. However, in light of Browder—an opinion that was issued after Villejo Enterprises—we sua sponte submitted this case en banc to reevaluate our precedent in Villejo Enterprises. Compare Browder, 659 S.W.3d at 423 (holding a party that has obtained an adverse ruling from the trial court need not object to that ruling to preserve appellate review of the adverse ruling), with Villejo Enters., LLC, 2021 WL 185528, at *2 (holding a party waived appellate review of a trial court’s adverse ruling excluding summary judgment evidence when the party did not provide written responses to the objections or a reporter’s record of the hearing showing it had objected to the trial court’s ruling). It appears the Dallas Court of Appeals first created the preservation rule regarding an adverse ruling to summary judgment evidence in Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878 (Tex. App.—Dallas 1990, no writ). The Brooks court did not consider the nonmovant’s affidavit attached as summary judgment evidence, stating: We also note that the record contains no objection by Brooks protesting the striking of her pleading and affidavit. By failing to allege that the trial court acted erroneously, [Brooks] has waived any error in connection with this action. Whether the stricken portions of Brooks’s petition and affidavit could raise a fact issue is of no moment. These portions are not before us and we cannot consider them. Id. The Brooks court did not cite any authority to support the preservation rule. As mentioned above, this court in Mangione—an unpublished, non-precedential opinion—agreed with the holding in Brooks. See Mangione, 2002 WL 1677457, at *5. Citing Brooks and Mangione, the El Paso Court of Appeals issued a precedential opinion agreeing with Brooks and holding the proponent of excluded summary judgment evidence “must inform the trial court of the purpose for which the evidence is offered and the reasons why the evidence is admissible” to preserve the issue for appellate review. See Cmty. Initiatives, Inc. v. Chase Bank of Tex., 153 S.W.3d 270, 281 (Tex. App.—El Paso 2004, no pet.); see also Cruikshank v. Consumer Direct Mortg., Inc., 138 S.W.3d 497, 499–500 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (citing Brooks and holding appellant waived review of the trial court’s exclusion of summary judgment evidence when appellant failed to provide a record showing argument why the evidence is admissible over hearsay and conclusory objections).[2] Relying on Brooks, the Dallas Court subsequently made the rule more direct, holding: “When a party fails to object to the trial court’s ruling that sustains an objection to his summary judgment evidence, he has not preserved the right to complain on appeal about the trial court’s ruling.” Cantu, 195 S.W.3d at 871. The precedent was then followed by other courts of appeals, including this court. See Chesapeake Expl. Ltd. P’ship v. Corine Inc., No. 10-06-00265-CV, 2007 WL 2447293, at *2 n.1 (Tex. App.—Waco Aug. 29, 2007, no pet.) (mem. op.); Selgas v. Henderson Cnty. Appraisal Dist., Nos. 12-10-00021-CV, 12-10-00050-CV, 2011 WL 5593138, at *5–6 (Tex. App.—Tyler Nov. 16, 2011, pet. denied) (mem. op.); Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 568–69 (Tex. App.—Amarillo 2013, pet. denied); Brown v. CB & I, Inc., No. 09-12-00521-CV, 2014 WL 172413, at *3 (Tex. App.—Beaumont Jan. 16, 2014, no pet.) (mem. op.); Villejo Enters., LLC, 2021 WL 185528, at *2; Davila v. Tex. Mut. Ins. Co., No. 03-19-00366-CV, 2020 WL 1174190, at *2 (Tex. App.—Austin Mar. 12, 2020, no pet.) (mem. op.). The Fort Worth Court of Appeals created a split of authority by rejecting the holdings in Brooks, Community Initiatives, and Cantu, stating: “We do not believe a party is required to object to the sustaining of an objection in order to complain of the sustaining of the objection on appeal; to the extent these decisions by our sister courts hold otherwise, we decline to follow them.”[3] Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *2 n.4 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.); see also Hill v. Fitness Int’l, LLC, No. 02-
