An Error-Preservation Trap that Needs to Be Disarmed

Posted by Rich PhillipsIn a memorandum opinion issued last week, the Dallas Court of Appeals again highlighted an error-preservation trap for the unwary and signaled its intent to keep enforcing the rule until someone gets it reversed en banc or by the Supreme Court.The issue stems from a 1990 case, Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878 (Tex. App.—Dallas 1990, no writ), in which the court refused to consider portions of the appellant’s summary-judgment evidence that had been excluded by the trial court because the appellant did not object to the trial court’s exclusion of that evidence. The court held: We also note that the record contains no objection by Brooks protesting the striking of her pleading and affidavit. By failing to allege that the trial court acted erroneously, appellant has waived any error in connection with this action.This is an odd error-preservation rule in that it requires a party to object to the court’s ruling on the other side’s objection. Usually, offering the evidence is sufficient to preserve error if the court excludes it. This rule has been criticized by other courts of appeals, who have refused to adopt it. E.g., Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *2 n.4 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.).In the opinion issued last Friday, the Dallas Court of Appeals panel noted the criticism of the rule but reiterated that it is bound by this rule until it is reversed by the court sitting en banc or by the Supreme Court. DuBois v. Martin Luther King, Jr., Family Clinic, No. 05-16-01460-CV, slip op. at 7 (Tex. App.—Dallas Apr. 6, 2018, no pet. h.) (mem. op.).Until that happens, if your case is in the jurisdiction of the Dallas Court of Appeals, be sure to object to an order granting the other side’s objections to your summary-judgment evidence. And, because this latest memorandum opinion at least suggests that some members of the court may be open to reconsidering the rule en banc in the right case, keep an eye out for an opportunity to seek en banc review of this rule or to take it up to the Supreme Court.