In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-25-00108-CV __________________
LINCOLN LEE LANKFORD, Appellant
V.
GREGORY KEVIN CLINE, Appellee
__________________________________________________________________
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 25-03-03781-CV __________________________________________________________________
MEMORANDUM OPINION
Appellant Lincoln Lee Lankford (“Lankford”) appeals the trial court’s
summary judgment in favor of Appellee Gregory Kevin Cline (“Greg”) in a suit for
claims related to an alleged assault on Lankford. Finding no error, we reverse in part
and affirm in part the trial court’s judgment.
1 Background
Lankford’s Petition
In Lankford’s First Amended Petition (the “Petition”), the live petition at the
time the trial court granted Greg’s no-evidence motion for summary judgment,
Lankford names Greg, Charlotte Gibbs Thomas, Misti Tylyn Thomas, Eric Seth
Thompson, and Mario Aguirre as defendants. 1 As to Greg’s involvement, the
Petition alleges the following, in relevant part:
[] On May 13, 2020, Lincoln Lee Lankford was in the shop on [the] property he shared with Misti Tylyn Thomas. Lincoln Lee Lankford heard a knock on the door, and when he opened the door, he was met by Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre, who proceeded to beat him so severely and viciously, it is a miracle he is still alive. . . . [] . . . [Lankford’s beating] was a hit arranged by Misti Tylyn Thomas to have Lincoln Lee Lankford grievously harmed, likely killed. Misti Tylyn Thomas arranged the hit with her former boyfriend, Eric Seth Thompson, and his running buddies, Gregory Kevin Cline and Mario Aguirre. Charlotte Gibbs Thomas aided and abetted her daughter, Misti Tylyn Thomas, in planning to have the hit carried out, and in cleaning the scene where the hit occurred. In a parenting low point, mom, Charlotte Gibbs Thomas, inquired not of the welfare of Lincoln Lee Lankford, but rather how much her daughter, Misti Tylyn Thomas, paid Eric Seth Thompson to carry out the hit. []Misti Tylyn Thomas and Gregory Kevin Cline have been indicted for the second degree felony of aggravated assault on Lincoln Lee Lankford. It is believed that Eric Seth Thompson has been indicted, but because he fled the United States after beating Lincoln Lee Lankford, the indictment remains sealed. The indictment returned by
1 Charlotte Gibbs Thomas, Misti Tylyn Thomas, Eric Seth Thompson, and Mario Aguirre are not parties to this appeal. We refer to them only as necessary for background and the disposition of this appeal.
2 the grand jury against Misti Tylyn Thomas states that her co-defendants are Eric Seth Thompson and Gregory Kevin Cline. Interestingly, Mario Aguirre has not been charged. ... ASSAULT/BATTERY: [] . . . Lincoln Lee Lankford seeks a recovery of damages for Eric Seth Thompson’s, Gregory Kevin Cline’s, and Mario Aguirre’s assault and battery upon him. Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre acted intentionally, knowingly, or recklessly and made contact with Lincoln Lee Lankford’s person with their fists, arms, legs, and feet, and clubs, likely the legs from a table that was in Lincoln Lee Lankford’s shop, causing serious bodily injury to Lincoln Lee Lankford. Eric Seth Thompson’s, Gregory Kevin Cline’s, and Mario Aguirre’s behavior proximately caused Lincoln Lee Lankford’s injuries. Eric Seth Thompson’s, Gregory Kevin Cline’s, and Mario Aguirre’s actions also constitute a threat of bodily injury to Lincoln Lee Lankford, and were intended to and did put Lincoln Lee Lankford in fear of being killed or gravely injured. Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre acted intentionally or knowingly and threatened Lincoln Lee Lankford with imminent bodily injury, causing injury to Lincoln Lee Lankford. Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre caused serious bodily injury to Lincoln Lee Lankford. Misti Tylyn Thomas aided and abetted Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre in battering and assaulting Lincoln Lee Lankford. Charlotte Gibbs Thomas aided and abetted Misti Tylyn Thomas in having Lincoln Lee Lankford battered and assaulted. Charlotte Gibbs Thomas’, Misti Tylyn Thomas’, Eric Seth Thompson’s, Gregory Kevin Cline’s, and Mario Aguirrre’s behavior proximately caused Lincoln Lee Lankford’s injuries. Lincoln Lee Lankford seeks recovery from each of Charlotte Gibbs Thomas, Misti Tylyn Thomas, Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre, jointly and severally, for the actual damages caused by their conduct, including, but not limited to, past and future physical pain and suffering, past and future mental anguish, past and future physical impairment, past and future medical expenses, past and future lost wages, and past and future disfigurement. Lincoln Lee Lankford seeks an award of exemplary damages from each of Charlotte Gibbs Thomas, Misti Tylyn Thomas, Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre because of their wilful and malicious desire to inflict this
3 injury upon him in an amount not to exceed $3,000,000.00 per defendant. VICARIOUS LIABILITY: [] Misti Tylyn Thomas had a meeting of the minds with Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre to have Lincoln Lee Lankford harmed, Lincoln Lee Lankford was harmed by the unlawful overt actions of . . . Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre, and those unlawful overt actions are the proximate cause of Lincoln Lee Lankford’s injuries. Accordingly, Misti Tylyn Thomas is jointly and severally liable, along with Charlotte Gibbs Thomas, Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre, for Lincoln Lee Lankford’s injuries. Lincoln Lee Lankford further seeks an award of exemplary damages from Misti Tylyn Thomas because of her wilful and malicious desire to inflict this injury upon him in an amount not to exceed $3,000,000.00. [] [] Charlotte Gibbs Thomas had a meeting of the minds with Misti Tylyn Thomas to arrange for Eric Seth Thompson to harm Lincoln Lee Lankford, Lincoln Lee Lankford was harmed by the unlawful overt actions of . . . Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre, and the unlawful overt actions are the proximate cause of Lincoln Lee Lankford’s injuries. Accordingly, Charlotte Gibbs Thomas is jointly and severally liable, along with Eric Seth Thompson, Gregory Kevin Cline, and Mario Aguirre, for Lincoln Lee Lankford’s injuries. Lincoln Lee Lankford further seeks an award of exemplary damages from Charlotte Gibbs Thomas because of her wilful and malicious desire to inflict this injury upon him in an amount not to exceed $3,000,000.00. [] ...
Greg’s No-Evidence Motion for Summary Judgment
Greg filed a No-Evidence Motion for Summary Judgment. See Tex. R. Civ.
P. 166a(i). 2 Greg argues in his motion that there is no evidence to meet the elements
2 Texas Rule of Civil Procedure 166a was amended in March 2026, but we refer to the version that was in effect when the motion was filed. 4 of civil conspiracy as set forth in United Pentecostal Church of Beaumont v. Parker3
where he states, “An action for civil conspiracy has five elements (1) a combination
of two or more persons; (2) the persons seek to accomplish an object or course of
action; (3) the persons reach a meeting of the minds on the object or course of action;
(4) one or more unlawful, overt acts are taken in pursuance of the object or course
of action; and (5) damages occur as a proximate result.” According to Greg’s motion,
[t]here is no evidence of a combination of two or more persons that included Greg. There is no evidence that those persons, including Greg, sought to accomplish harming [Lankford]. There is no evidence that those persons, including Greg, reached a meeting of the minds on harming [Lankford]. There is no evidence that [Lankford] sustained damages as a proximate result vs. the intervening car wreck he was in. And, there is no evidence that Greg willfully or maliciously desired to inflict harm or injury on [Lankford], precluding exemplary damages for any purported conspiracy. [See] Tex. Civ. Prac. & Rem. Code § 41.003(2). In other words, there is no evidence that Greg had the specific intent to cause substantial injury or harm to [Lankford]. See id. There is no evidence that Greg acted in other than self-defense. Stated differently, there is no evidence that Greg and another person or persons had knowledge of a common objective or course of action to harm [Lankford]. There is no evidence that Greg agreed to a common objective or course of action to harm [Lankford]. There is no evidence that Greg intended harm to [Lankford] that proximately resulted in damages to [Lankford]. There is no evidence that Greg was aware of an intended assault or proposed assault of [Lankford] at the outset of any combination or agreement. There is no evidence that Greg knew of a plan to grievously harm or likely kill [Lankford]. There is no evidence that Greg arranged any “hit” with Thompson, Misti, and Aguirre. Accordingly, Greg is entitled to summary judgment on [Lankford]’s conspiracy claim[.]
3 514 S.W.3d 214, 222 (Tex. 2017).
5 Greg argues that a civil cause of action for aiding and abetting does not exist in Texas
and that, even if it does exist, there is no evidence to support the elements of the
cause of action. As for Lankford’s theft claim, Greg contends that there is no
evidence that he or any defendant unlawfully appropriated Lankford’s property, no
evidence that Greg or any co-defendant “had the intent to deprive [Lankford] of any
piece of property or when such act occurred[,]” and no evidence that Lankford’s
property “was stolen ‘as part of a criminal episode’ or even what timeframe this
episode encompassed.” Greg asserts that Lankford’s claim for attorney’s fees has no
basis in law or fact.
Lankford’s Response
Lankford filed a Response to Greg’s No-Evidence Motion for Summary
Judgment. Lankford argues in his Response that Greg did not file a no-evidence
motion for summary judgment on Lankford’s assault and battery claims, and that
Greg was convicted of assaulting Lankford on May 13, 2020, as evidenced by the
Judgment of Conviction attached as Exhibit C to Lankford’s Response. According
to Lankford, Exhibits A and B, “affidavits” of Officer C. Sullivent, raise more than
a scintilla of probative evidence to raise a genuine issue of material fact supporting
his claim that the defendants conspired to assault Greg.
6 Greg’s Reply
Greg filed his Reply to Lankford’s Response, noting that after being served
with the motion for summary judgment, Lankford “amended his petition to
recharacterize [h]is claim of conspiracy to commit assault and battery of [Lankford]
to an assault and battery of [Lankford] by three or more people all conspiring and
acting together, asserted under the same claims of vicarious liability as previously
plead.” Greg notes that Lankford abandoned his “Aiding and Abetting” claim and
instead included it as part of his conspiracy claim in his Petition. According to Greg,
[t]here remains no evidence of assault and battery rather packaged as a conspiracy or not. There is simply no evidence identified by [Lankford] to support a claim of assault/battery by Greg Cline individually or together with anyone else. [Lankford] advances no competent summary judgment evidence to demonstrate an assault, a conspiracy, or even an injury to [Lankford].
In his Reply, Greg states that the only “evidence” Lankford offers in support of his
claims are the “affidavits” attached as Exhibits A and B, and “an uncertified,
unauthenticated and hearsay copy of a posable government record as Exhibit C.” In
his Reply, Greg objected to Exhibits A and B on the bases that neither affidavit
claims to be made with personal knowledge and both affidavits lack facts to show
that either affidavit “was obtained from anything other than hearsay sources and the
expressions of opinion.” Greg objected to Exhibit C on the bases that it is an
unauthenticated document that fails to address or assert any facts related to Lankford
or any claims made or asserted by Lankford, and that it is “complete hearsay and 7 that with no evidence of context is not relevant or otherwise provided in discovery,
even as a witness statement.” Greg requested that Exhibits A, B, and C, offered by
Lankford in opposition to Greg’s no-evidence motion for summary judgment, be
struck and not considered by the trial court. Greg argued that a key component of
each of Lankford’s claims against Greg for “Assault/Battery/Conspiracy, and
Theft[]” is injury. According to Greg, Lankford has failed to provide any evidence
of an injury to him and failed to provide a damage model. Greg contends that
Lankford has abandoned his request for attorney’s fees.
The Trial Court’s Order Granting Defendant Gregory Cline’s Motion for Summary Judgment and Ruling on Objections, the Order of Severance, and Lankford’s Appeal
The trial court signed an Order Granting Defendant Gregory Kevin Cline’s
Motion for Summary Judgment and Ruling on Objections, granting Greg’s
objections to Exhibits A, B, and C; ordering Exhibits A, B, and C struck as summary
judgment evidence; granting summary judgment in favor of Greg; and dismissing
Lankford’s claims against Greg “arising from or otherwise based on claims of
“Conspiracy/Assault/Battery/Vicarious Liability[]” and theft with prejudice; and
dismissing Lankford’s claims against Greg based on aiding and abetting and for
attorney’s fees as moot. The trial court granted Greg’s Motion for Severance, and
the summary judgment order was severed into Cause No. 25-03-03781. Lankford
timely appealed.
8 Issues on Appeal
In his first issue, Lankford argues that the trial court erred in entering summary
judgment on the assault cause of action because Greg did not challenge the cause of
action for assault.4 In issue two, Lankford contends that the trial court erred in
granting summary judgment where the affidavits of Officer Charles Sullivent
(Exhibits A and B) and the Judgment of Conviction by Jury (Exhibit C) attached to
Lankford’s Response, provided more than a scintilla of evidence on every element
of his claims for conspiracy and assault. In issue three, Lankford argues that the trial
court erred in sustaining Greg’s evidentiary objections to Exhibits A, B, and C.
Analysis
The Trial Court’s Grant of Summary Judgment as to Lankford’s Assault Claim
In his first issue, Lankford argues that the trial court erred in entering summary
judgment on the assault cause of action because Greg did not challenge the cause of
action for assault. Lankford argues that Greg challenges each element of conspiracy
but makes no attempt to even mention the elements of assault, and that the
4 On appeal, Lankford challenges the trial court’s grant of the summary judgment only as to Lankford’s assault and conspiracy claims against Greg. When a trial court grants summary judgment to a defendant and the plaintiff appeals, the plaintiff abandons any claims that he does not brief on appeal, and we will review the summary judgment only with respect to those claims that he asserts in his brief. See, e.g., Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987).
9 classification of civil conspiracy as a derivative tort is irrelevant. According to
Lankford, an order granting summary judgment on more claims than the movant
asserted is erroneous, and because Greg never lodged a no-evidence challenge on
Lankford’s claim for assault and battery, this Court must reverse the trial court’s
grant of summary judgment on Lankford’s claim for assault and battery.
We review grants of summary judgment de novo. Cantey Hanger, LLP v.
Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We take as true all evidence favorable to
the non-movant, indulge every reasonable inference in favor of the non-movant, and
resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment is
essentially a pretrial motion for directed verdict, which we review for legal
sufficiency. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
After there has been adequate time for discovery, a party may file a motion
for summary judgment asserting there is no evidence of one or more essential
elements of a claim or defense on which the other party bears the burden of proof.
See Tex. R. Civ. P. 166a(i). “The motion must state the elements as to which there
is no evidence.” Id. “Once such a motion is filed, the burden shifts to the nonmoving
party to present evidence raising an issue of material fact as to the elements specified
in the motion.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A
trial court must grant a no-evidence motion for summary judgment unless the
10 nonmovant produces more than a scintilla of evidence raising a genuine issue of
material fact as to the challenged elements. Tex. R. Civ. P. 166a(i); Mack Trucks,
206 S.W.3d at 582; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.
2002). If the evidence rises to a level that would allow reasonable and fair-minded
people to differ in their conclusions, then more than a scintilla of probative evidence
exists. King Ranch, 118 S.W.3d at 751. “‘The evidence does not create an issue of
material fact if it is ‘so weak as to do no more than create a mere surmise or
suspicion’ that the fact exists.’” First United Pentecostal Church of Beaumont v.
Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting Kia Motors Corp. v. Ruiz, 432
S.W.3d 865, 875 (Tex. 2014)). In evaluating whether more than a scintilla of
evidence exists, we must view the evidence in the light most favorable to the
nonmovant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
To meet the specificity requirements of Rule 166a(i), a no-evidence motion
for summary judgment “must allege that there is no evidence of an essential element
of the adverse party’s claim.” Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002). The motion cannot merely allege that the nonmovant cannot prove a
claim; rather, the motion must be specific in the elements the movant is challenging.
Tex. R. Civ. P. 166a(i); Bean v. Reynolds Realty Grp., Inc., 192 S.W.3d 856, 859
(Tex. App.—Texarkana 2006, no pet.) (“If the [no-evidence] motion is not specific
in challenging a particular element of a claim or defense, it is insufficient as a matter
11 of law.”); Meru v. Huerta, 136 S.W.3d 383, 387 (Tex App.—Corpus Christi-
Edinburg 2004, no pet.) (“Rule 166a(i) does not authorize conclusory motions or
general no-evidence challenges to an opponent’s case.”).
On appeal, Greg argues that the following statements in his no-evidence
motion for summary judgment, and as emphasized in his brief in bold type, specify
the elements of Lankford’s assault claim that Greg challenges:
There is no evidence that [Lankford] sustained damages as a proximate result vs. the intervening car wreck he was in. ... In other words, there is no evidence that Greg had the specific intent to cause substantial injury or harm to [Lankford]. There is no evidence that Greg acted in [any way] other than self-defense. Stated differently, there is no evidence that Greg and another person or persons had knowledge of a common objective or course of action to harm [Lankford]. There is no evidence that Greg agreed to a common objective or course of action to harm [Lankford.] There is no evidence that Greg intended harm to [Lankford] that proximately resulted in damages to [Lankford]. There is no evidence that Greg was aware of an intended assault or proposed assault of [Lankford] at the outset of any combination or agreement. There is no evidence that Greg knew of a plan to grievously harm or likely kill [Lankford].
To prevail on a claim for civil assault, the plaintiff must establish the same elements
required for criminal assault. Umana v. Kroger Tex., L.P., 239 S.W.3d 434, 436
(Tex. App.—Dallas 2007, no pet.); Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied). As applicable here, a person
commits assault if they intentionally, knowingly, or recklessly cause bodily injury
to another. See Tex. Penal Code Ann. § 22.01(a)(1). We conclude that, as to 12 Lankford’s assault claim, Greg’s no-evidence motion failed to specifically challenge
the assault claim, so we sustain issue one and we remand that claim to the trial court.
The Trial Court’s Striking of Summary Judgment Evidence
Before resolving Lankford’s second issue, we address Lankford’s third issue
challenging the trial court’s evidentiary ruling sustaining Greg’s objections to
Exhibits A, B, and C attached to Lankford’s Response, and the trial court’s ruling
striking the evidence. In issue three, Lankford argues Sullivent’s affidavits (Exhibits
A and B) were based on personal knowledge and contained admissible statements
from Misti Thomas to Charlotte Thomas. As to the uncertified Judgment of
Conviction by Jury (Exhibit C), Lankford argues in his third issue that Exhibit C is
admissible under Texas Rule of Evidence 901(b)(4) because its authenticity is
established by its appearance, contents, substance, internal patterns, or distinctive
characteristics when taken together with all the circumstances. He also contends,
citing to section 8, Article V of the Texas Constitution and Texas Rules of Evidence
803(8) and 803(22), that Exhibit C is not hearsay because it is a record of an activity
of a state district court. According to Lankford, Exhibit C is relevant because “it was
used to provide some evidence that one or more unlawful, overt acts had taken place
in furtherance of the conspiracy.”
An appellate court reviews a trial court’s ruling that sustains an objection to
summary judgment evidence for an abuse of discretion. See Cantu v. Horany, 195
13 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.). As a prerequisite to presenting
a complaint for appellate review, the record must show the complaint was made to
the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a).
Under the applicable summary judgment rule 166a(c) which applied in this case,
issues not expressly presented to the trial court by written motion, answer, or other
response shall not be considered on appeal as grounds for reversal. When a party
fails to object to the trial court’s ruling sustaining an objection to his summary
judgment evidence, he has failed to preserve the right to complain on appeal about
the trial court’s ruling. Celtic Props., L.C. v. Cleveland Reg’l Med. Ctr., L.P., No.
09-13-00464-CV, 2015 Tex. App. LEXIS 8051, at *15 (Tex. App.—Beaumont July
31, 2015, no pet.) (mem. op.); Brown v. CB&I, Inc., No. 09-12-00521-CV, 2014
Tex. App. LEXIS 505, at *9 (Tex. App.—Beaumont Jan. 16, 2014, no pet.) (mem.
op.); see also Alco Realty v. Coastal Horizons Inv., LLC, No. 01-17-00984-CV, 2018
Tex. App. LEXIS 10012, at **7-8 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no
pet.) (mem. op.) (appellant did not preserve complaint challenging trial court’s ruling
granting motion to strike exhibits attached to appellant’s summary judgment
response because appellant did not file a response to the motion to strike, request a
hearing on the objections to that evidence, or move for a new trial); Cantu, 195
S.W.3d at 871 (citing Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878 (Tex.
App.—Dallas 1990, no writ); Cmty. Initiatives, Inc. v. Chase Bank of Tex., 153
14 S.W.3d 270, 281 (Tex. App.—El Paso 2004, no pet.)). By failing to object to the
trial court’s ruling sustaining Greg’s objections to Lankford’s evidence or otherwise
making his arguments regarding the admissibility of the evidence in the trial court,
Lankford waived the right on appeal to complain about the trial court’s ruling that
sustained those objections and struck the evidence. Celtic Props, L.C., 2015 Tex.
App. LEXIS 8051, at *15; Brown v. CB&I, Inc., 2014 Tex. App. LEXIS 505, at *9;
Cantu, 195 S.W.3d at 871-72.
The concurring Justice has agreed we are bound by stare decisis, but he then
proceeds to criticize the preservation rule articulated by this Court in Brown and
Celtic. Notably, he does not argue that the trial court abused its discretion in
sustaining the objections to the evidence. Absent controlling authority from the
Supreme Court of Texas or an en banc decision of this Court on point, we are bound
by prior panel decisions (Brown and Celtic) of this Court applying the preservation
requirement. See Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022) (stating
that under principles of horizontal stare decisis, “three-judge” appellate court panels
“must follow materially indistinguishable decisions of earlier panels of the same
court” unless the prior decisions have been superseded by higher authority, such as
a decision by Texas Supreme Court or “an en banc decision of the court of appeals
itself[]”); see also Tex. Windstorm Ins. Ass’n v. Kelly, 680 S.W.3d 632, 635 n.2 (Tex.
App.—Beaumont 2023, pet. denied) (“Opinions of our sister Courts ‘are not binding
15 on this Court.’”) (quoting Rhinoceros Ventures Grp., Inc. v. TransCanada Keystone
Pipeline, L.P., 388 S.W.3d 405, 409 (Tex. App.—Beaumont 2012, pet. denied)).
Issue three is overruled.
The Trial Court’s Grant of Greg’s No-Evidence Motion for Summary Judgment
In Lankford’s second issue, he argues the trial court erred in granting
summary judgment because he argues his attachments to his summary judgment
response, Sullivent’s affidavits (Exhibits A and B) and the Judgment of Conviction
by Jury (Exhibit C), provided more than a scintilla of evidence on every element of
Lankford’s claims for conspiracy and assault. As noted above, the trial court struck
those exhibits from its consideration of Greg’s no-evidence motion for summary
judgment, and Lankford failed to preserve his challenge to the trial court’s sustaining
of Lankford’s objections and the trial court’s striking of the evidence. In reviewing
whether a summary judgment was properly granted, we may not consider struck
portions of the record because that evidence is not part of the summary judgment
record. See Bahr v. Emerald Bay Prop. Owners Ass’n, No. 09-16-00325-CV, 2018
Tex. App. LEXIS 3675, at *14 (Tex. App.—Beaumont May 24, 2018, no pet.)
(mem. op.); McCollum v. Bank of N.Y. Mellon Trust Co., 481 S.W.3d 352, 362 (Tex.
App.—El Paso 2015, no pet.); Trudy’s Tex. Star, Inc. v. City of Austin, 307 S.W.3d
894, 898 n.2 (Tex. App.—Austin 2010, no pet.); Etsy v. Beal Bank S.S.B., 298
16 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no pet). Because the only evidence
Lankford produced in response to Greg’s no-evidence motion for summary
judgment was struck by the trial court, we conclude there was no summary judgment
evidence for the trial court to consider, and no summary judgment evidence for us
to consider in our appellate review. Without such evidence to consider, the trial court
was required to grant Greg’s no-evidence motion for summary judgment on the
conspiracy claim. See Tex. R. Civ. P. 166a(i); Mack Trucks, Inc., 206 S.W.3d at 582.
We conclude the trial court properly granted Greg’s no-evidence motion for
summary judgment as to Lankford’s claim for conspiracy. Issue two is overruled.
We reverse the trial court’s judgment on the assault claim and remand that
claim to the trial court, but we otherwise affirm the trial court’s judgment on the
conspiracy claim, and we affirm the trial court’s judgment on the theft claim and all
other claims that Lankford abandoned by failing to brief such claims in this appeal.
REVERSED AND REMANDED IN PART AND AFFIRMED IN PART.
LEANNE JOHNSON Justice
Submitted on July 9, 2026 Opinion Delivered August 31, 2026
Before Johnson, Wright and Chambers, JJ.
17 CONCURRING OPINION
I concur in the result reached by the Court, but I write separately because I do
not agree that in order to preserve error a party should be required to object to a trial
court’s ruling on the other party’s objection. As the majority opinion indicates, this
Court has previously held that such an objection is necessary, and this panel is bound
by stare decisis to follow our own precedent on the issue. See Mitschke v. Borromeo,
645 S.W.3d 251, 256-57 (Tex. 2022). I agree we must do so in this case.
That said, there is a split of authority on this issue, and I consider the opinions
of two of our sister courts to be persuasive authority for the proposition that we
should not impose such a requirement, at least not as it is currently formulated. See
Schumacher v. Trois, 705 S.W.3d 854, 868 (Tex. App.—San Antonio 2024, pet.
denied) (en banc) (“We disavow precedent from this court to the extent it requires a
party to object to a trial court’s ruling sustaining an adverse party’s objections to
summary judgment evidence to preserve that ruling for appellate review.”); Miller
v. Great Lakes Mgmt. Serv., No. 02-16-00087-CV, 2017 Tex. App. LEXIS 2268, at
*5 n.4 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.) (“We do not
believe a party is required to object to the sustaining of an objection in order to
complain of the sustaining of the objection on appeal; to the extent these decisions
by our sister courts hold otherwise, we decline to follow them.”).
1 When evidence is offered, the burden is on the opponent of the evidence to
make a timely and proper objection and to secure a ruling on the objection. See Tex.
R. App. P. 33.1(a). When such an objection is made and the trial court fails to rule,
Rule 33.1(a)(2)(B) requires the objecting party to object the trial court’s refusal to
rule. See id. 33.1(a)(2)(B). But when the trial court has actually ruled on an objection,
there is no need for another objection. See id. 33.1(c) (“Neither a formal exception
to a trial court ruling or order nor a signed, separate order is required to preserve a
complaint for appeal.”).
If Rule 33.1 required the proponent of the evidence to object to the trial court’s
ruling sustaining the opponent’s objection, it necessarily follows that the proponent
of the evidence would then be required to pursue a ruling on its objection to the trial
court’s ruling, because an objection without a ruling preserves nothing for appellate
review. In a trial, this would lead to exchanges something like this:
Plaintiff’s counsel: We offer Exhibit 1.
Defense counsel: Objection; hearsay.
Trial court: Sustained.
Plaintiff’s counsel: We object to the trial court’s ruling.
Trial court: I’ve ruled, counsel. Move along.
Plaintiff’s counsel: We object to the trial court’s failure to rule on our objection to the trial court’s ruling.
2 Aside from causing unnecessary aggravation, all we really accomplish by
adopting such an interpretation of Rule 33.1(a) is to require the trial court to rule on
two objections instead of one. I acknowledge the majority is not suggesting this
should be a requirement for preserving error when evidence is offered at trial, only
when evidence is offered in the summary judgment context. I am simply imagining
how the existence of such a requirement would play out in a trial to demonstrate the
futility of an objection to a ruling on an objection. The difference in a summary
judgment proceeding is that everything must be done in writing, but I am uncertain
how the written form of the proceedings infuses such an objection with any utility.
Instead of requiring an objection to the trial court’s ruling, I would hold that
the proponent of the evidence must “state[] the grounds for the ruling that the
[proponent of the evidence] sought from the trial court with sufficient specificity to
make the trial court aware of the [grounds], unless the specific grounds were
apparent from the context.” Id. 33.1(a)(1)(A). Our sister court has explained,
To preserve the error of a trial judge in excluding evidence, a party must: (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which it is offered and give the trial judge reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the judge rules the evidence inadmissible, make a record, either by offer or proof or through a formal bill of exceptions, of the precise evidence the party desires admitted.
In the Interest of J.O., No. 04-07-00752-CV, 2008 Tex. App. LEXIS 3465, at *4
(Tex. App.—San Antonio May 14, 2008, no pet.) (mem. op.). The same rule should 3 apply both at trial and in summary judgment proceedings, although adherence to the
rule will take different forms depending on the context. If time allows, compliance
with the rule can and should be done before the trial court rules on the objection; in
the summary judgment context this can be accomplished by filing a response, a reply
or a supplemental response or reply, stating the proponent’s reasons that the
opponent’s objection should be overruled and the evidence admitted. If time does
not allow, it can and should be done in a motion for rehearing, a motion for new trial,
or some similar motion before challenging the ruling on appeal. As the rule indicates,
no such response is necessary if “the specific grounds were apparent from the
context[.]” See Tex. R. App. P. 33.1(a)(1)(A); see also Schumacher, 705 S.W.3d at
873 (Martinez, C.J. concurring). However, those who rely on this provision do so at
their own risk.
In conclusion, I believe the rule should be reformulated. A party should not
be required to object to a ruling on an objection. Instead, when one side objects, each
side should be required to state the specific grounds upon which they seek a ruling
in their favor, and neither side should be allowed to argue new grounds on appeal.
KENT CHAMBERS Justice
Concurrence Delivered August 31, 2026