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Cummings v. Cire

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

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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).

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