Top Ten Appellate Mistakes: Ignoring Record Preservation

The summary judgment motion usually presents a mountain of a problem for the busy trial lawyer. The motion is often filed towards the latter half of the discovery period and the trial lawyer must draft a response in addition to his other duties of interviewing witnesses, taking depositions, attending mediations, and all of the various things that go in to preparing a case for trial. The appellate court is the last thing on his mind. But it shouldn't be. If he fails to any objections in his response to the movant's motion or evidence, on appeal he'll only be allowed to argue that the grounds presented for summary judgment are insufficient as a matter of law to support the summary judgment. Roadside Stations v. 7HBF, Ltd., 904 S.W.2d 927, 932 (Tex. App. - Fort Worth 1995, no writ). Consequently, he must not only file a sufficient response, he must objectively comb through the movant's motion for any possible objections. Do the affidavits contain facts that would otherwise be admissible at a conventional trial? Has the movant adequately and accurately referenced materials that are already on file with the court? Is the evidence based on hearsay?

If there is objectionable material in the motion, the trial lawyer should do all he can to preserve his objections on the record and this is where many lawyers fail. His objections  to formal deficiencies in the summary judgment proof should be in writing or he risks waiver on appeal (substantive deficiencies can be raised for the first time on appeal). And he should ask the court to make written rulings on the objections. In seven courts of appeal in Texas, if he doesn't secure a written ruling on his objections, they are considered waived. See e.g., Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 206-07 (Tex. App. - Dallas 2005, no pet.).

(Part of a ten-part series entitled Trial Lawyers' Top Ten Appellate Mistakes)

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