Evidence, but not That Evidence

The Fifth Court clarified what is, and isn’t, in the record when the resolution of a summary-judgment motion involves motions for reconsideration/new trial:

• “When a motion for reconsideration or new trial is filed after a summary judgment motion is heard and ruled upon, the trial court may ordinarily consider only the record as it existed before hearing the motion for the first time.”
• BUT: “[A] trial court may accept summary judgment evidence filed late, even after summary judgment, as long as the court affirmatively indicates in the record that it accepted or considered it. Where the trial court affirmatively indicates on the record that it accepted or considered the evidence attached to a motion to reconsider, this court reviews ‘the summary judgment based upon the grounds and proof in both prejudgment and post-judgment filings.'” 

Chang v. Liu, No. 05-20-00977-CV (Nov. 23, 2022) (mem. op.) (citations pmitted).