Filing a motion or making an objection is not sufficient by itself to preserve error. We also have to get a ruling from the trial judge. This requirement makes sense in light of one of the fundamental purposes of error preservation: giving the trial judge the chance to correct the error. Texas Rule of Appellate Procedure 33.1 has codified this requirement. The record must show that
(2) the trial court
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a)(2).
Don't be tempted to rely on the idea of implicit rulings. Appellate courts are not very receptive to claims that a ruling was implicit. For example, see this post about a rejected attempt to invoke an implicit ruling after a bench conference. Additionally, almost all Texas appellate courts have refused to imply rulings on objections to summary-judgment evidence based simply on the fact that the trial court granted summary judgment.
When you file a motion, you will almost always have to set a hearing or take some other action to bring it to the court's attention. State court judges simply don't have time to go searching through the file looking for motions that need to be ruled on.
And when you make an oral objection during a hearing or at trial, be sure that the court actually rules on it. "Move along" or "thank you, counsel" are not rulings. Also, watch out for conditional rulings.
If the court refuses to rule, you may have to be assertive and ask for a ruling. For example in response to "move along." you will need to politely ask the court for a ruling. Of course, this involves a strategy call about which objections are important enough to risk the judge's ire by being a pest about a ruling. But for key obejctions, there may be no choice.
For a good example of the persistence needed to preserve error when the court refuses to rule, see CMC Steel Fabricators, Inc. v. Red Bay Constructors, Inc., No. 14-13-00084-CV, 2014 WL 953351 (Tex. App.—Houston [14th Dist.] March 11, 2014, no pet. h.). There, the complaining party did the following to preserve objections to affidavits filed in support of a special appearance hearing:
- Filed written objections before the hearing
- Raised the objections at the hearing
- Asked the trial court to rule on the objections at the hearing
- When the trial court did not rule on the objections before ruling on the special appearance, the party filed a motion requesting a ruling
- When the trial court again refused to rule, the party filed a written objection to the court's refusal to rule
Not surprisingly, the appellate court found that error had been preserved. The procedure looks ponderous, but it is what the rules require to preserve error if the trial court refuses to rule.
In short, to be sure you've preserved error: (1) get a ruling; (2) don't rely on implicit rulings; and (3) if the trial court refuses to rule, object to the refusal.
[This post marks the return of a series of occasional posts in which I will highlight suggested best practices for preserving error. If you have any practices that you use and would like to share with others, please let me know, and I will be happy to pass them along (with appropriate attribution, of course).]
- Rich Phillips, Thompson & Knight