Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Carla Roberson Cummings (Carla) appeals from a final judgment dismissing her lawsuit against George E. Cire, Jr., Martha K. Adams and Taylor & Cire (collectively referred to as Cire) for legal malpractice. The judgment was the natural consequence of the trial court’s decision to strike Carla’s pleadings. Through seven issues, she now complains that the trial court erred by 1) overruling her objections to discovery requests, 2) compelling her to answer deposition questions and interrogatories, 3) imposing “death penalty” sanctions, 4) striking her pleadings, 5) denying her motion for new trial and 6) failing to grant her partial motion for summary judgment. We reverse.

Denial of Carla’s Summary Judgment

We address the complaint regarding the trial court’s purported denial of Carla’s motion for summary judgment first. In doing so, we note that the appellate record does not contain a signed order denying Carla’s motion. Nor does Carla cite us to any such order illustrating that the trial court acted upon the motion. Instead, she merely references a docket entry wherein someone wrote “PARTIAL SJ DENIED;” who made that entry is unknown. Given these circumstances, we overrule the issue. Simply put, a court must act upon a motion before its substance can be considered on appeal. See Tex. Rule App. Proc. 33.1 (discussing preservation of error and the need for the court to act upon the objection, request, or motion). And, the notation in the docket does not fill the void for it does not constitute a signed order for purposes of appeal. First Nat’l. Bank of Giddings, Tex. v. Birnbaum, 826 S.W.2d 189, 190-91 (Tex. App.–Austin 1992, no writ) (stating that docket entries do not take the place of a signed order or judgment).

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Elite Trial Lawyers 2021

July 29, 2021

The National Law Journal Elite Trial Lawyers recognizes U.S.-based law firms performing exemplary work on behalf of plaintiffs.


BenefitsPRO Broker Expo 2021

May 18, 2021 - August 18, 2021
Virtual / San Diego, CA

The premier educational and networking event for employee benefits brokers and agents.


African Legal Awards 2021

September 03, 2021

The African Legal Awards are set out to recognise exceptional achievement from Africa s legal elite.


Environmental Law Associate (Multiple Locations)

Philadelphia, Pennsylvania, United States

Fox Rothschild LLP is seeking an environmental law associate. The ideal candidate will have 3 to 5 years of environment-related experience. ...

Apply Now ›

Legal Secretary- Experienced

Miami, Florida, United States

Miami Law Firm seeks experienced Legal Secretary withminimum 5+ years experience in Plaintiff's Personal Injury for busy law practice.Comput...

Apply Now ›

Senior Attorney

Long Island City, New York, United States


Apply Now ›



VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN is pleased to welcome Frank Breitman, Esq. a talented and respected litigator to our ranks of trial lawyers.

View Announcement ›



HARWOOD LLOYD, LLC Welcomes Beth L. Barnhard, Esq. Beth has joined the firm as Counsel in the Wills, Trusts and Estates Department. She is Certified to be an Elder Law Attorney (CELA) by the ABAaccredited National Elder Law Foundation.

View Announcement ›



SNYDER SARNO D'ANIELLO MACERI & DACOSTA is Proud to Announce the opening of New Morristown Office!

View Announcement ›