First in Seim, First in Right.

Telfer v. Adams presented the question whether an objection to an affiant’s lack or personal knowledge was a defect in “form” or “substance,” and thus whether a trial court objection and ruling is necessary to preserve error about the affidavit’s consideration under Seim v. Allstate Texas Lloyds, 551 S.W.3d 161 (Tex. 2018). The Fifth Court sidestepped the question by concluding that the notary’s acknowledgement was sufficient to prove up the attached documents. The Court noted that its prior opinions were not consistent on the point, and cited an informative article by now-Magistrate Judge David Horan about the Fifth Circuit’s practices on this topic: “Because panels lack the authority to overrule one another, our first decision touching upon a question should control pending en banc reconsideration.” No. 05-17-01387-CV (Feb. 8, 2019) (mem. op.) (The mild incongruity of a rule about the resolution of uncertainty appearing in a memorandum opinion, which assumes that “the issues are settled,” Tex. R. App. 47.2, is a byproduct of 2003 rule amendments that reconfigured the types of appellate opinions in Texas.)