Gentry v. Tucker, 891 S.W.2d 766 (Tex. App. 1995). · Go Syfert
Gentry v. Tucker, 891 S.W.2d 766 (Tex. App. 1995). Cases Citing This Book View Copy Cite
32 citation events (29 in the last 25 years) across 2 distinct courts.
Strongest positive: In Re Scotti Campbell and Diana Campbell v. the State of Texas (texapp, 2025-08-07)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) In Re Scotti Campbell and Diana Campbell v. the State of Texas
Tex. App. · 2025 · confidence medium
Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App.—Texarkana 1995, no writ) (“A pending motion to transfer will be waived by actions invoking the judicial power of the court in a manner inconsistent with a continuing intention to insist upon the motion.”).
discussed Cited as authority (rule) in Re Eastman Chemical Company and Eastman in Its Assumed or Common Name
Tex. App. · 2019 · confidence medium
Id.; see Carlile, 138 S.W.3d at 408 (“A movant may urge a preliminary motion without waiving venue objections, provided the motion does not involve a hearing on the merits.”); Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App.—Texarkana 1995, no writ) (“The motion [to transfer] will be waived if the defendant who is filing it, without first insisting upon its disposition, tries the case on the merits.”); Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 310 (Tex. App.—Fort Worth 1988, writ denied) (“[I]nconsistent action resulting in waiver is one which invokes the genera…
cited Cited as authority (rule) Thomas Duran D/B/A Duran Ins. Brokerage and Duran Ins. Brokerage, Inc. v. Entrust, Inc.
Tex. App. · 2010 · confidence medium
“Generally, these actions invoke the judicial power of the courts.” Id. (citing Gentry v. Tucker , 891 S.W.2d 766, 768 (Tex. App.—Texarkana 1995, no writ), and Grozier , 744 S.W.2d at 310 ).
examined Cited as authority (rule) Carlile v. RLS Legal Solutions, Inc. (4×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2004 · confidence medium
Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex.App.-Texarkana 1995, no writ); Grozier, 744 S.W.2d at 310 .
examined Cited as authority (rule) Carlile, David C. v. RLS Legal Solutions, Inc. (3×) also: Cited "see, e.g."
Tex. App. · 2004 · confidence medium
Gentry v. Tucker , 891 S.W.2d 766, 768 (Tex. App. C Texarkana 1995, no writ); Grozier , 744 S.W.2d at 310 .
cited Cited as authority (rule) in Re: Elizabeth Ann Lambdin, Relator
Tex. App. · 2003 · confidence medium
Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App.–Texarkana 1995, no writ).
cited Cited as authority (rule) in Re: Elizabeth Ann Lambdin, Relator
Tex. App. · 2003 · confidence medium
Gentry v. Tucker , 891 S.W.2d 766, 768 (Tex. App.-Texarkana 1995, no writ).
discussed Cited as authority (rule) in Re: Jimmy D. Franks, Cheryl Quada and 180 Student Link, Inc.
Tex. App. · 2002 · confidence medium
App. P. 33; WTFO, Inc. v. Braithwaite , 899 S.W.2d 709 (Tex. App.-Dallas 1995, no writ); Gentry v. Tucker , 891 S.W.2d 766, 769 (Tex. App.-Texarkana 1995, no writ); Gonzalez v. Nielson , 770 S.W.2d 99, 101 (Tex. App.-Corpus Christi 1989, writ denied).
discussed Cited "see" In Re Sandra Ramirez v. the State of Texas
txctapp8 · 2026 · signal: see · confidence high
See Gentry v. Tucker, 891 S.W.2d 766, 769 (Tex. App.—Texarkana 1995, no pet.) (providing that a party “must move for continuance to preserve error on Rule 87 grounds that he was not given either sufficient notice of the hearing or reasonable time to prepare for trial after the hearing”).
cited Cited "see" in Re D. J. M.
Tex. App. · 2013 · signal: see · confidence high
See Gentry v. Tucker, 891 S.W.2d 766, 769 (Tex. App.—Texarkana 1995, no writ).
cited Cited "see" in Re Rachel Leder
Tex. App. · 2007 · signal: see · confidence high
See Gentry v. Tucker , 891 S.W.2d 766, 768 (Tex. App.--Texarkana 1995, no writ).
cited Cited "see" In Re Leder
Tex. App. · 2007 · signal: see · confidence high
See Gentry v. Tucker, 891 S.W.2d 766 , 768 *287 (Tex.App.-Texarkana 1995, no writ).
cited Cited "see" Michael A. Jenkins and Helen Marie Jones Van Dyke v. Nebraska Alexander Lucille Rogers Jeraline Thornton Hallie B. Ward Willie L. Roach Sam Clark Evelina Lipscomb Horace Nichols James Nichols Marie Jones And Bessie Lee Hill
Tex. App. · 1997 · signal: see · confidence high
See Gentry v. Tucker , 891 S.W.2d 766, 768 (Tex. App.--Texarkana 1995, no writ).
discussed Cited "see, e.g." Smith v. Smith
Tex. App. · 2017 · signal: see, e.g. · confidence low
See, e.g., Gentry v. Tucker , 891 S.W.2d 766 , 768 (Tex. App.-Texarkana 1995, no writ) ("The motion [to transfer venue] will be waived if the defendant who is filing it, without first insisting upon its disposition, tries the case on the merits."); Grozier v. L-B Sprinkler & Plumbing Repair , 744 S.W.2d 306 , 310 (Tex. App.-Fort Worth 1988, writ denied) ("[I]nconsistent action resulting in waiver is one which invokes the general jurisdiction of the court without reservation of rights asserted by the filing of the plea of privilege.").
discussed Cited "see, e.g." Toliver v. Dallas Fort Worth Hospital Council
Tex. App. · 2006 · signal: see also · confidence medium
See Llanez v. Chisos Mining Co., 285 S.W. 646, 647 (Tex.Civ.App.-El Paso 1926, no writ) (holding that when a cause has been removed to *448 federal court and subsequently remanded to state court, the proceedings in federal court do not ordinarily affect the right to object to venue in state court); see also Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex.App.-Texarkana 1995, no pet.) (holding that filing a motion for continuance of a hearing on a preliminary matter does not invoke the court’s general jurisdiction in the main suit and does not waive a party’s objection to venue).
Retrieving the full opinion text from the archive…
Larry GENTRY, Appellant,
v.
Gordon G. TUCKER, Fred E. Tucker, Jr., AMHGS, Inc., and Huel H. Weaver, Jr., Appellees
06-94-00036-CV.
Court of Appeals of Texas.
Jan 9, 1995.
891 S.W.2d 766
David Hardaway, Fort Worth, TX, for appellant,, Cecilia Ackels Martin, Dan S. Boyd, Baker & McKenzie, Dallas, TX, for appellees.
Cornelius, Bleil, Grant.
Cited by 24 opinions  |  Published

OPINION

GRANT, Justice.

Larry Gentry appeals the granting of in-junctive relief and a declaratory judgment against him. Gentry contends: (1) that the trial court erred in ruling that Gentry waived his motion to transfer venue by filing a motion for continuance for a temporary injunction hearing and by proceeding to a trial on the merits; (2) that the trial court erred in refusing to allow Gentry to have forty-five days’ notice, as required by Tex.R.Civ.P. 87 for the transfer of venue hearing; and (3) that the trial court erred in setting the trial date three weeks after the answer was due.

Gordon G. Tucker, Fred E. Tucker, Jr., and Huel H. Weaver (the Tuckers) sued Larry Gentry seeking injunctive relief and a declaratory judgment relating to a dispute involving a partnership. A temporary injunction hearing was scheduled for September 17, 1993. On that day, Gentry filed a motion for continuance of that hearing. The hearing was rescheduled for September 24, 1993. On the answer day, September 20, 1993, Gentry filed an answer subject to a motion to transfer venue. On September 24, 1993, the trial court granted the temporary injunction and set the trial date for October 11, 1993, three weeks from Gentry’s answer day. At trial, final judgment, including a permanent injunction, was entered in the Tuckers’ behalf.

In his first point of error, Gentry contends that the trial court erred in ruling that he waived his motion to transfer venue. On September 17, 1993, a hearing on a temporary injunction was scheduled. Gentry filed a motion for continuance. The trial court then rescheduled the hearing for September 24, 1993. On September 20, 1993, Gentry filed a motion to transfer venue. The trial court determined that the motion for continuance waived Gentry’s right to a motion to transfer venue.

An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading, or motion, except a special appearance motion provided by Rule of Civil Procedure 120a. Tex.R.Civ.P. 86(1). However, Gentry argues that his motion for continuance was a preliminary motion and, therefore, did not waive error. Courts have held that appearing in other matters prior to the main suit will not waive the plea. See Perkola v. Koelling & Associates, Inc., 601 S.W.2d 110, 111-12 (Tex.Civ.App.—Dallas 1980, writ dism’d). In Calloway v. Calloivay, the court found that venue relates to a trial upon the merits and not to temporary and preliminary orders which do not invoke the court’s general jurisdiction in the main suit. 442 S.W.2d 926, 928 (Tex.Civ.App. — Eastland 1969, no writ). This exception was applied in Perkola, where a party was determined not to have waived his right to a motion to transfer venue by appearing at a temporary injunction hearing, nor did he waive when he filed special exceptions and a brief in support without making them subject to the plea. Perkola, 601 S.W.2d 110.

In the case at bar, Gentry filed a motion for continuance on a preliminary matter. This did not invoke the court’s general jurisdiction in the main suit, nor was it a motion for continuance of the entire case. Therefore, Gentry’s motion for continuance of a hearing on a temporary injunction did not waive his right to transfer venue.

The Tuckers also contend that the right to contest venue was waived by Gentry because he tried the case on the merits. A pending motion to transfer will be waived by actions invoking the judicial power of the court in a manner inconsistent with a continuing intention to insist upon the motion. Talbert v. Miles, 477 S.W.2d 710 (Tex.Civ. App.—Waco 1972, no writ). The motion will be waived if the defendant who is filing it, without first insisting upon its disposition, tries the case on the merits. Frosh v. Holmes, 8 Tex. 29 (1852); Hosmer v. New [*769] York Buyers’ Ass’n, 258 S.W. 858 (Tex.Civ. App. —San Antonio 1924, no writ).

Gentry did participate in the trial on the merits. Because the statement of facts was not timely filed, it is not before this Court. Therefore, there is no confirmation to Gentry’s assertion in his brief that he insisted upon its disposition, nor does the record reflect that he objected to the court’s failure to address the motion to transfer venue. Hence, the motion was waived when the case was tried on the merits. The trial court did not abuse its discretion in determining that Gentry waived his right to transfer venue. This point of error is overruled.

By his second point of error, Gentry contends that the trial court erred in refusing to allow Gentry to have forty-five days’ notice as required by Tex.R.Civ.P. 87 for the transfer of venue hearing. Rule 87 indicates that, except on leave of court, each party is entitled to at least forty-five days’ notice of a hearing on the motion to transfer. A party, however, must move for continuance to preserve error on Rule 87 grounds that he was not given either sufficient notice of the hearing or reasonable time to prepare for trial after the hearing. Gonzalez v. Nielson, 770 S.W.2d 99, 101 (Tex.App.—Corpus Christi 1989, writ denied). Because the mov-ant has an affirmative duty to request a setting on a motion to transfer for lack of venue, he must pursue a hearing thereon in order to later rely upon his motion on appeal. Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306 (Tex.App.—Fort Worth 1988, writ denied). It is the plaintiffs responsibility to see that this matter was resolved before a trial on the merits. Rosenthal v. Short, 582 S.W.2d 214, 215 (Tex.Civ.App.— Houston [1st Dist.] 1979, writ dism’d).

In the case at bar, there is no showing that Gentry did anything beyond requesting a hearing on the motion to transfer venue. Without a record of an objection or motion for continuance of the trial setting, Gentry has not shown that he directed the trial court’s attention to this matter. Therefore, no error is preserved.

Lastly, Gentry contends that the trial court erred in setting the trial date three weeks after his answer was due. However, in order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. Tex.R.App.P. 52(a). In the case at bar, there is no record of an objection being made to the trial court at the time the case was set for trial. (This was not mentioned until the filing of a motion for new trial, which did not constitute a timely motion). Therefore, no error was preserved. This point of error is overruled.

The judgment of the trial court is affirmed.