Sign In
Events
Newsletters
Search

Close

Close Search

Cancel

SEARCH
MY LAW.COMNEW

Cummings v. Cire

The assessment of a death penalty sanction is not justified merely because a litigant lacks money to pay a fine.

X

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).

Trending Stories

 
Reprints & Licensing
Mentioned in a Law.com story?

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

LEARN MORE

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
Go to CLE Center
BenefitsPRO Broker Expo 2024
April 29, 2024 - May 01, 2024
Aurora, CO

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


Learn More
Pennsylvania Legal Awards 2024
May 15, 2024
Philadelphia, PA

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania and Delaware.


Learn More
Consulting Leaders in Technology 2024
May 16, 2024
Dallas, TX

Consulting Magazine recognizes leaders in technology across three categories Leadership, Client Service and Innovation.


Learn More
Go to Events Go to Webcasts
Legal Writing & Research Professional

Atlanta s John Marshall Law School is seeking to hire one or more full-time, visiting Legal WritingInstructors to teach Legal Research, Anal...


Apply Now ›
Labor & Employment Associate CT

Shipman is seeking an associate to join our Labor & Employment practice in our Hartford, New Haven, or Stamford office. Candidates shou...


Apply Now ›
Associate General Counsel

Evergreen Trading is a media investment firm headquartered in NYC. We help brands achieve their goals by leveraging their unwanted assets to...


Apply Now ›
Go to Lawjobs
MELICK & PORTER, LLP
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
Apruzzese, McDermott, Mastro & Murphy, P.C.
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
Robbins Alloy Belinfante Littlefield
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›
Go to Professional Announcements