Error Preservation in Texas Civil Cases, June 30, 2019

June 30, 2019

Dear All:

Interestingly enough, there were not a lot of error preservation decisions this last week, or at least not a lot that I caught.  One relatively important one that I had not seen in the last six years or so–that the failure of the trial court to join an indispensable party is a jurisdictional issue, which might mean that said failure is a complaint which can first be raised on appeal.  Maybe.  Though I think you have to ask the trial court to join the indispensable party.

Table of Contents

Some complaint may first be raised on appeal–such as the failure of the trial court to join an indispensable party

Your complaint on appeal must be the complaint you raised in the trial court

Evidence (Running Objection)
Evidence
Summary Judgment
Summary Judgment

The Blurbs

Some complaint may first be raised on appeal–such as the failure of the trial court to join an indispensable party:

Indispensable Party: “In this case, however, the trial court declined to enter judgment on the jury verdict. Although Key had died, that fact did not deprive the trial court of subject-matter jurisdiction, which “deals with the power of a court to determine an action involving a particular subject matter as between the parties and render a certain judgment.” Kshatrya v. Tex. Workforce Comm’n, 97 S.W.3d 825, 829 (Tex. App.—Dallas 2003, no pet.) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)). If the defendant’s death was enough to [*6] deprive the trial court of subject-matter jurisdiction, a case would end before a trial court could allow substitution under Rule 152. … the question naturally arises how can a trial court grant a motion filed when there was no one with standing to file the motion in the first place? The answer to this question is that “[t]he failure to join a jurisdictionally indispensable party constitutes fundamental error, which an appellate court is bound to notice if the error is apparent from the face of the record.” Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex. App.—Houston [1st Dist.] 1991, no writ)).” In re Coats, No. 06-19-00040-CV, 2019 Tex. App. LEXIS 5347, at *5-8 (Tex. App.—Texarkana June 27, 2019)

Your complaint on appeal must be the complaint you raised in the trial court:

Evidence (Running Objection): “The Department contends that Father failed to preserve this issue. In order to preserve a complaint for our review, the action or omission which is alleged as error or abuse of discretion on behalf of the trial court must have been the basis of a timely request, objection, or motion that specified the action that the trial court was requested to take, or to forbear from taking, and an adverse ruling must have been obtained. Tex. R. App. P. 33.1(a); Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). Father did not raise an objection at the time Meredith or Wymore testified to the children’s statements regarding where they desired to live. However, Father argues that the trial court granted him a running objection that preserved this error for appeal. Running objections are an exception to the general rule that a party must continue to object and get [*20] a ruling for each individual instance of inadmissible testimony. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (citing Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991); In re A.P., 42 S.W.3d 248, 261 (Tex. App.—Waco 2001, pet. denied), overruled on other grounds by In re A.M., 385 S.W.3d 74 (Tex. App.—Waco 2012, pet. denied). “A running objection is required to be specific and unambiguous.” Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet. denied). Such an objection should “not encompass too broad a reach of subject matter over too broad a time.” Ethington, 819 S.W.2d at 859. Even though the trial court sua sponte granted Father a running objection, the record is unclear regarding the scope of the objection granted. See Huckaby, 20 S.W.3d at 203. We conclude that, due to the objection’s context and the timing of the court’s ruling, the running objection was, at best, restricted to the children’s out-of-ourt statements regarding what they told Meredith about their father directing them to fight and about seeing and experiencing domestic violence. We are not free to assume that the court granted Father a running objection to any witness testifying to any of the children’s out-of-court statements regarding any subject, because not all such statements are necessarily hearsay, and it is the parties’ responsibility to make specific objections and ensure that the record reflects the scope and subject matter of the court’s ruling on those objections. See id. Therefore, Father failed to object to Meredith or [*21] Wymore testifying to the children’s statements regarding where they wanted to live. Accordingly, this issue was not preserved for our review. See Tex. R. App. P. 33.1(a).” In the Interest of A.D.K., No. 06-19-00019-CV, 2019 Tex. App. LEXIS 5295, at *19-21 (Tex. App.—Texarkana June 26, 2019)

Evidence: “In its second issue, Stephens & Myers claims that the trial court erred when it allowed Johnston to testify as to matters that “included pure questions of law and was unreliable.” Johnston testified about the duties of agents and lawyers and about the rules that govern lawyers. Stephens & Myers objected to the testimony but did [*91] not object on the grounds that the testimony “included pure questions of law and was unreliable”; the only objection went to a failure to disclose. To preserve error for appeal, the argument made in the trial court must comport with the argument made on appeal. See Tex. R. App. P. 33.1(a); Santander Consumer USA, Inc. v. Mata, No. 03-14-00782-CV, 2017 WL 1208767, at *3 (Tex. App.—Austin Mar. 29, 2017, no pet.). Stephens & Myers has waived its complaint that Johnston’s testimony “included pure questions of law and was unreliable.”” Stephens v. Three Finger Black Shale P’ship, No. 11-16-00177-CV, 2019 Tex. App. LEXIS 5459, at *90-91 (Tex. App.—Eastland June 28, 2019)

Summary Judgment: “Roughly two weeks after the trial court entered summary judgment against him and sustained the Francises’ general objections, Hobson filed a motion for reconsideration of both the summary judgment itself and of the order on the Francises’ objections, combined with a motion for leave to file an amended affidavit and to set aside the summary-judgment order. We will consider that motion for reconsideration to have been the functional equivalent of a motion for new trial. [*18] Hobson’s motion—which the trial court never expressly ruled on—did not call to the trial court’s attention his appellate complaint that it was error to sustain the general objections because they were not specific enough. The rules of error preservation apply to summary-judgment proceedings as well as to trials. Tex. R. App. P. 33.1(a); Seim, 551 S.W.3d at 163-64 (“The same evidentiary standards that apply in trials also control the admissibility of evidence in summary-judgment proceedings. But the rules of error preservation also apply.” (citation omitted)); cf. Cunningham v. Anglin, No. 05-12-00039-CV, 2014 WL 3778907, at *3 (Tex. App.—Dallas July 31, 2014, pet. denied) (mem. op.) (noting rule 33.1(a)’s requirements and stating that party whose summary-judgment evidence was excluded “may not argue on appeal any and every new issue he can think of nor may he resurrect issues he abandoned at the hearing”; if a party “fails to object to the trial court’s ruling that sustains an objection to his summary judgment evidence, he has not preserved the right to complain on appeal about the trial court’s ruling,” and “[e]ven if the objections appear meritorious on appeal, they are not preserved for appellate review if the record does not show the complaint was made to the trial court” (citing Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.)). This principle applies [*19] equally to motions for new trial: the trial court must know what is being complained about. See Tex. R. App. P. 33.1(b) (“In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.”); cf. Cooper v. Tex. Dept. of Criminal Justice Corr. Insts. Div., No. 12-17-00182-CV, 2018 WL 1940395, at *2 (Tex. App.—Tyler Apr. 25, 2018, no pet.) (mem. op.) (holding that by reasserting sham-affidavit argument in motion to reconsider that was overruled by operation of law, appellant preserved argument for appellate review). By not apprising the trial court of this particular complaint, Hobson has waived the argument that the trial court erred in sustaining the Francises’ general objections to his affidavit and supplemental affidavit because, in Hobson’s view, those objections were insufficiently specific to constitute valid objections. Rather, Hobson’s motion for 20 reconsideration sought only to persuade the trial court that his original affidavit “recited sufficient facts to show how he obtained personal knowledge of the facts set forth in the affidavit,” and that the Francises were wrong to lodge a hearsay [*20] objection to Hobson’s recounting out-of-court statements that he made to them asking for an easement. Moreover, Hobson’s motion for reconsideration did not even mention or analyze a third category of the Francises’ general objections: that both affidavits were “replete with conclusory statements, legal opinion and legal conclusion.” As a subpart of his fourth Issue Presented, Hobson contends that the Francises’ general objections should not have been sustained because they did not “otherwise have merit.” n. 11 n. 11 Again, Hobson did not argue to the trial court that the Francises’ general objections did not “otherwise have merit,” and thus waiver seemingly applies to this subissue as well. See Tex. R. App. P. 33.1(a). Despite the wording of Hobson’s issue, which is not on its face entirely clear, his brief analyzes the Francises’ specific objections.” Hobson v. Francis, No. 02-18-00180-CV, 2019 Tex. App. LEXIS 5412, at *17-20 (Tex. App.—Fort Worth June 27, 2019)

Summary Judgment: “Hobson’s motion for the trial court to reconsider and set aside its ruling on the Francises’ objections discussed only the no-personal-knowledge and hearsay aspects, which are formal defects. He did not argue to the trial court that his affidavit contained no substantive defects despite the Francises’ contention, and thus did not give the trial court a chance to reconsider that aspect of the Francises’ general objections, as he must have under rules 33.1(a) and (b). n. 13 n. 13 While it is true that substantive defects in summary-judgment affidavits may be complained about for the first time on appeal, that principle does not logically apply when it is the losing nonmovant complaining that the movant succeeded in challenging the nonmovant’s affidavit on substantive-defect grounds. In this situation, to preserve error Hobson must have first complained to the trial court. See Tex. R. App. P. 33.1(a), (b). Despite apparent waiver of claimed error on this point, we will consider the affidavit statements that Hobson’s brief addresses.” Hobson v. Francis, No. 02-18-00180-CV, 2019 Tex. App. LEXIS 5412, at *26 (Tex. App.—Fort Worth June 27, 2019).

The courts also dealt with a number of issues which the parties had failed to raise in the trial court.

All for now.  Hope this helps.  Y’all have a good 4th.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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Error Preservation in Texas Civil Cases June 23, 2019

June 23, 2019

Dear All:

Table of Contents

Irreconcilably Conflicting Jury Answers

One court of appeals held that a delay in seeking a hearing on a motion to transfer venue did not waive the motion

Venue

You have to bring your complaint to the trial court’s attention–and merely filing your motion with the clerk does not do that

Arbitration

You have to comply with the pertinent rules–and if your particular motion for new trial requires the taking of evidence, and you do not have such a hearing on your motion, merely allowing the passage of time to overrule your motion for new trial will not preserve the complaint made in it

Continuance
Motion for New Trial

You have to get a ruling on your objections

Affidavit
Continuance
Evidence
Summary Judgment

The Blurbs

One court of appeals held that to preserve a complaint about irreconcilably conflicting jury answers, you have to raise the complaint before the trial court discharges the jury–which is what I would always tell you to do. But I got a different head count than did the court of appeals on the Supreme Court’s decision in Menchaca, as it looked like to me (in trying to track the admittedly hard-to-follow several opinions in Menchaca) that four justices said appellate courts can disregard irreconcilably conflicting jury answers in the absence of an objection, and a fifth justice said he agreed “in this situation.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 522 (Tex. 2018) (Hecht, CJ, concurring). What a mess:

Irreconcilably Conflicting Jury Answers: “By its fourth issue, Los Compadres contends that the jury issued conflicting findings. Appellees claim that Los Compadres waived its complaint because it failed to object before the jury was discharged. “When an irreconcilable conflict involves one jury answer that would require a judgment in favor of the plaintiff and another that would require a judgment in favor of the defendant, the conflict is fatal.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 509 (Tex. 2018). To properly preserve a complaint that there is a fatal irreconcilable conflict in the jury’s verdict, the party “must raise that objection before the trial court discharges the jury.” Id. at 518.

Los Compadres concedes that it did not object to the jury’s alleged fatal conflicts prior to its discharge. See id. Therefore, error, if any, is not preserved for appeal. See id.; see also Davis v. Vaughters, No. 01-17-00612-CV, 2018 Tex. App. LEXIS 8951, 2018 WL 5661317, at *5 (Tex. App.—Houston [1st Dist.] Nov. 1, 2018, no pet.) (mem. op.) (“Even were we to conclude [*19] that Davis has identified a conflict in the jury’s answers, which we do not, it is well-established that ‘to preserve error based on fatally conflicting jury answers, parties must raise that objection before the trial court discharges the jury.'”).

In light of its failure to preserve this issue, Los Compadres requests that we remand the cause for a new trial in the interest of justice. It states in its reply brief that in Menchaca, a plurality opinion, three justices opined that irreconcilable jury responses did not constitute fundamental error, and concluded that an objection was required prior to the jury’s discharge. Nonetheless, these justices voted with the majority to remand the case for a new trial in the interest of justice, because the Court’s decision addressed confusion in the error preservation requirements for irreconcilable jury responses.

See Menchaca, 545 S.W.3d at 505. However, Los Compadres does not explain with legal argument and citation to applicable authority why it is entitled to a new trial in the interest of justice in this Court and how this Court has authority to do so when we do not have the same authority to remand in the interest of justice as the Texas Supreme Court. See Tex. R. App. P. 38.1(i); Wall v. State Farm Lloyds, ___ S.W.3d ___, ___ No. 01-17-00681-CV, 2018 Tex. App. LEXIS 10899, *14, 2018 WL 6843781, at *5 (Tex. App.—Houston [1st Dist.] Dec. 31, 2018, no pet.) (refusing [*20] to remand in the interest of justice because it had not found error warranting reversal in the trial court’s judgment and explaining that the rules for remand in the interest of justice are not the same in the Texas Supreme Court and the intermediate courts).” Los Compadres Pescadores, L.L.C. v. Valdez, No. 13-17-00344-CV, 2019 Tex. App. LEXIS 5086, at *18-20 (Tex. App.—Corpus Christi June 20, 2019)

One court of appeals held that a delay in seeking a hearing on a motion to transfer venue did not waive the motion:

Venue: “We disagree that waiver could have justified the trial court’s ruling in this case.  Rule 87(1) provides that a movant for transfer has a [*12] duty to request a setting on the motion, but it does not state that the request must be made within any particular time, except to say that the court must rule on the motion within “a reasonable time” prior to trial. Tex. R. Civ. P. 87(1). Further, the cases cited by Gulf are not persuasive on this point. In Ledbetter, the defendant waived its transfer motion because it did not seek a ruling on it until seven months after the trial was completed; here, the case has not even been set for trial. See 896 S.W.2d at 419. The Whitworth court remarked that waiver would have justified the trial court’s denial of the transfer motion, but that was dicta because its ruling affirming the denial was based on the merits of the transfer motion. See 734 S.W.2d at 111. The court in Carlile affirmed the trial court’s denial of a transfer motion where the defendant waited “approximately fourteen months” to request a hearing and “was perhaps less than diligent” in pursuing a ruling on the transfer motion. 138 S.W.3d at 408-09. But the court’s ruling was also based on the fact that the defendant filed summary judgment pleadings and a motion for continuance which were not conditioned upon his venue motion. Id. Here, unlike in Carlile, Eastman did not file any pleadings seeking [*13] to “invoke[] the general jurisdiction of the court to rule on the merits” of the Gulf’s claims. Instead, to the extent Eastman sought affirmative relief from the trial court, that relief related exclusively to discovery matters which, by their very nature, are preliminary to consideration of the claims on their merits. Further, even though Eastman’s original transfer motion was filed in 2013, its amended motion was filed in 2017, and it requested a hearing on the amended motion shortly after it was filed. Under these circumstances, we conclude that Eastman did not waive its venue complaint.” In re Eastman Chem. Co., No. 13-18-00268-CV, 2019 Tex. App. LEXIS 5089, at *11-13 (Tex. App.—Corpus Christi June 20, 2019)

You have to bring your complaint to the trial court’s attention–and merely filing your motion with the clerk does not do that:

Arbitration: “See Murphree v. Cooper, No. 14-11-00416-CV, 2012 WL 2312706, at *1 (Tex. App.—Houston [14th Dist.] June 19, 2012, no pet.) (mem. op.) (“Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling.”). While Read previously had filed a motion to compel arbitration, about ten months after Sibo filed his lawsuit against her and six months after she had filed her answer, she never presented the motion to the trial court for a ruling.” Read v. Sibo, No. 14-18-00106-CV, 2019 Tex. App. LEXIS 5160, at *11 (Tex. App.—Houston [14th Dist.] June 20, 2019)

You have to comply with the pertinent rules–and if your particular motion for new trial requires the taking of evidence, and you do not have such a hearing on your motion, merely allowing the passage of time to overrule your motion for new trial will not preserve the complaint made in it:

Continuance: “Texas Rule of Civil Procedure 251 governs motions for continuance. A motion for continuance shall not be granted without “sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251. Accordingly, motions for continuance generally must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. C.F., 565 S.W.3d at 844. When a motion for continuance does not comply with the rules—for example, when the motion is unwritten or unsupported by verified facts—appellate courts generally presume the trial judge did not abuse its discretion in denying the motion. Id. Oral requests for a continuance do not preserve error. Id. Mother did not file a written motion for continuance. Her oral request on the day of trial is insufficient to preserve error for our review. See id. Unlike the appellant in our recent decision in In re L.N.C., Mother does not suggest the denial of her motion for continuance violated her right to due process. No. 14-18-00691-CV, ___ S.W.3d ___, 1900, *5, 2019 Tex. App. LEXIS 645 (Tex. App.—Houston [14th Dist.] Jan. 31, 2019, pet. filed). Accordingly, L.N.C. does not govern this case. Mother’s failure to preserve error precludes appellate review. C.F., 565 S.W.3d at 844. We overrule Mother’s first issue.” In the Interest of B.G.G., No. 14-19-00278-CV, 2019 Tex. App. LEXIS 5168, at *29 (Tex. App.—Houston [14th Dist.] June 20, 2019)

Motion for New Trial: “Regarding JD Enterprises’s motion for new trial, there was no hearing on the motion and it was overruled by operation of law. Tex. R. Civ. P. 329b(c). The overruling of a motion for trial by operation of law preserves error for appeal “unless taking evidence was necessary to properly present the complaint in the trial court.” Tex. R. App. P. 33.1(b) (emphasis added). JD Enterprises’s claim that it did not timely receive notice of the summary judgment motion and hearing required evidence, but no evidence was taken in this case. Under Rule 33.1(b), “if a movant seeks a new trial on a ground on which evidence must be heard by the trial court, the movant must obtain a hearing on its new-trial motion to preserve error.” Tyhan, Inc. v. Cintas Corp. No. 2, No. 01-18-00027-CV, 2018 Tex. App. LEXIS 8847, 2018 WL 5539419, at *1-2 (Tex. App.—Houston [1st Dist.] Oct. 30, 2018, no pet.) (mem. op.); . . . .Because the motion for new trial required the taking of evidence and was overruled by operation of law, we conclude JD Enterprises failed to preserve error, if any, regarding the overruling of its motion for new trial. Tex. R. App. P. 33.1(b).” JD Shelton Enters. LLC v. AGL Constructors, No. 05-18-00765-CV, 2019 Tex. App. LEXIS 4986, at *5-6 (Tex. App.—Dallas June 17, 2019)

You have to get a ruling on your objections:

Affidavit: “Falvey objected to Maloy’s affidavit on the grounds that she was not established to be an expert and that the affidavit was conclusory. Again, the record contains no ruling on the objections. See Tex.R.App.P. 33.1.” Acosta v. Falvey, No. 08-16-00295-CV, 2019 Tex. App. LEXIS 5188, at *6 n.2 (Tex. App.—El Paso June 21, 2019)

Continuance: “JD Enterprises complains about the denial of the motion to extend time filed before the hearing and the denial of its motion for new trial. However, the record does not show that either of these complaints were preserved for review. See Tex. R. App. P. 33.1(a), (b). As a prerequisite to complaining on appeal about the denial of a motion for continuance, the record must show that the motion was brought to the trial court’s attention and the trial court denied the motion or the trial court refused to rule and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a);. . . . Although JD [*5] Enterprises filed the motion to extend time before the trial court heard the motion for summary judgment, there is no indication in the record that JD Enterprises set the motion for hearing or otherwise brought it to the trial court’s attention. Nor does the record show the trial court ruled on the motion to extend time. Thus, JD Enterprises’s complaint regarding the motion to extend time is not preserved for review.” JD Shelton Enters. LLC v. AGL Constructors, No. 05-18-00765-CV, 2019 Tex. App. LEXIS 4986, at *4-5 (Tex. App.—Dallas June 17, 2019)

Evidence: “Documents, including Acosta’s affidavit, appear in the clerk’s record before, and apparently separately from, the summary judgment response. Falvey objected to the trial court considering those documents because they were not submitted as summary judgment evidence and did not comply with Rule 166a(d) of the Texas Rules of Civil Procedure. The record does not, however, contain any ruling on those objections and it appears that the trial court considered Acosta’s documents as summary judgment evidence. We will do the same. See Tex.R.App.P. 33.1 (requiring a ruling on objection to preserve error).” Acosta v. Falvey, No. 08-16-00295-CV, 2019 Tex. App. LEXIS 5188, at *6 n.2 (Tex. App.—El Paso June 21, 2019)

Summary Judgment: “Hagan did nothing to insure that the trial court “affirmatively indicated on the record” it considered the new evidence. It was his burden to obtain a ruling on his motion for leave to designate Clark [an expert] and ensure the record reflects either the trial court’s ruling or refusal to rule on his motion. Tex. R. App. P. 33.1;” Hagan v. Pennington, No. 05-18-00010-CV, 2019 Tex. App. LEXIS 5101, at *12 (Tex. App.—Dallas June 19, 2019)

Y’all have a good week.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, June 17, 2019

June 15, 2019

Dear All:

Table of Contents

Your complaint has to be timely–and the Supreme Court extensively discussed that concept of timeliness, in the context of a Chapter 150 dismissal for lack of a certificate of merit

Certificate of Merit (Majority)
Dissent

One court of appeals implied that a party may first complain on appeal that action by the trial court on remand was inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate

Legal and factual insufficiency complaint can be raised for the first time on appeal from a bench trial

Attorney’s Fees

One case held that an evidentiary objection was preserved, because of the carryover effect from an immediately preceding objection

A Couple of cases addressed whether the complaint was sufficiently specific

Arbitration
Evidence

You have to comply with the pertinent rules

Special Appearance

You have to get a ruling on your complaint

Dismissal

The complaint you raise on appeal must be the complaint you raised in the trial court

Jury Charge

The Blurbs

Your complaint has to be timely–and the Supreme Court extensively discussed that concept of timeliness, in the context of a Chapter 150 dismissal for lack of a certificate of merit, while the dissent pointed out that one might be estopped to raise a complaint, even though the complaint was not waived:

Certificate of Merit (Majority): “Under Chapter 150, both a certificate of merit and the consequence for failing to file one are mandatory. But as our analysis in Crosstex tacitly recognizes, when defendants have so engaged the judicial process that a certificate of merit ceases to serve its intended function, the requirement of its filing is waived. And when the right to a threshold affirmation of merit has been waived, the consequence for failing to file one dissipates. In other words, because the Engineers’ substantial invocation of the judicial process implied an intent to waive the certificate-of-merit requirement, the statutory basis for dismissal has likewise been waived. We therefore affirm the court of appeals’ judgment finding waiver of the statutory right to dismissal and remand the case to the trial court.” Lalonde v. Gosnell, No. 16-0966, 2019 Tex. LEXIS 579, at *27 (June 14, 2019) (Guzman, J., for the majority)

Dissent: “Ultimately, two fundamental truths should determine the outcome of this case. First, chapter 150 gave the engineers the right to obtain dismissal of the homeowners’ claims at any time during this litigation process. And second, we cannot hold that the engineers impliedly waived that right through litigation conduct unless that conduct clearly demonstrated that they knew about and intended to relinquish that right. Because the statute did not require them to seek dismissal early in the process or prohibit them from engaging in litigation before seeking dismissal, none of their conduct clearly demonstrated an intent to relinquish their right to obtain dismissal when and as the statute allowed. I would therefore reverse the court of appeals’ judgment and reinstate the trial court’s judgment dismissing the homeowners’ claims. Because the Court does not, I respectfully dissent.” Lalonde v. Gosnell, No. 16-0966, 2019 Tex. LEXIS 579, at *44 (June 14, 2019) (Boyd, J., dissenting, joined by Hecht, CJ, and Blacklock, J.).

One court of appeals implied that a party may first complain on appeal that action by the trial court on remand was inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate.

Trial Court Action Beyond Mandate: At least one court of appeals has implied that a party can first complain on appeal that, on remand, the trial court took an action that is inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate. Scott Pelley P.C. v. Wynne, No. 05-18-00550-CV, 2019 Tex. App. LEXIS 4943, at *5 (Tex. App.—Dallas June 13, 2019). It is unclear whether the Pelley Court actually held such a complaint could first be raised on the appeal after remand–in Pelley, the appellants “contend[ed] the trial court’s award . . . exceeded this Court’s mandate,” the appellees “argue[d] the [appellants] failed to preserve the issued for appeal,” and the Court held that “[w]hen [as here] a trial court exceeds its authority under a mandate, the resulting judgment is erroneous,” without addressing whether appellants had preserved the complaint in the trial court. Scott Pelley P.C. v. Wynne, No. 05-18-00550-CV, __WL__, 2019 Tex. App. LEXIS 4943, at *4-5, 6 (Tex. App.—Dallas June 13, 2019, no pet. hist.) (Opinion).

Legal and factual insufficiency complaint can be raised for the first time on appeal from a bench trial:

Attorney’s Fees: “In her third issue, Hines contends there was no-evidence or insufficient evidence to support an award for attorney’s fees. Maple counters this argument by claiming Hines failed to object at trial to the reasonableness of the attorney’s fees, so she waived any claim of error. Maple further asserts “the testimony and argument of counsel were sufficient” to uphold an award of attorney’s fees. At trial, Maple’s representative testified that she had to retain an attorney to handle the appeal in county court at law, and she paid the attorney $500.00. We examine a no evidence challenge on appeal as a challenge to the legal sufficiency of the evidence. . . . . Generally, an appellant must preserve complaints for appellate review through a timely request, objection, or motion and obtain a ruling in the trial court. . . . .However, “[i]n a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. 33.1(d). Hines did not waive her no-evidence challenge to the attorney’s fee award by raising it for the first time on appeal.” Hines v. Maple Hous. of Beaumont, No. 09-17-00381-CV, 2019 Tex. App. LEXIS 4912, at *9 (Tex. App.—Beaumont June 13, 2019)

Possession and Access Order: “[H] asserts that [P] did not preserve error concerning the sufficiency of the evidence because she did not file a request for findings of fact and conclusions of law or a motion for new trial. But the sufficiency issues in this case concern the evidence on issues tried to the court, not the issue tried to the jury. “In a civil nonjury case, [*10] a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex.R.App.P. 33.1.” In the Interest of S.H., No. 08-16-00052-CV, 2019 Tex. App. LEXIS 4843, at *9 (Tex. App.—El Paso June 12, 2019)

Here is a case holding that an evidentiary objection which was preserved, because of the carryover effect from an immediately preceding objection:

Evidence: “By arguing only relevance to the trial court when objecting to the sexual-assault indictment, it appears at first blush that Father failed to preserve his appellate hearsay argument. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); . . . .But we conclude that Father did not waive this issue because the other indictments had been admitted over his hearsay objection immediately [*4] before the State offered the sexual-assault indictments, allowing Father to assume that the trial court’s ruling would be the same and relieving him of the duty to again object on the basis of hearsay to this similar evidence. See, e.g., Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-91 (Tex. App.—Waco 2000, pet. denied) (op. on reh’g); Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 243 (Tex. App.—Corpus Christi—Edinburg 1994, writ denied); City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App.—Fort Worth 1988, writ denied).” In the Interest of A.W., No. 02-19-00057-CV, 2019 Tex. App. LEXIS 4938, at *3-4 (Tex. App.—Fort Worth June 13, 2019)

Here are a couple of cases which addressed whether the complaint was sufficiently specific:

Arbitration: “ReadyOne attacks reliance on the purported Rule 11 agreement on both substantive and procedural grounds. We address ReadyOne’s procedural objection first. ReadyOne contends that notwithstanding the validity of any purported Rule 11 agreement precluding the appointment of JWA, Guillen-Chavez waived any objection to the arbitrator by failing to [*12] renew her objection to the arbitrator’s authority before the arbitrator himself. See Brook v. Peak Int’l, Ltd., 294 F.3d 668, 673-74 (5th Cir. 2002)(objections to constitution of arbitration panel must be stated at beginning of arbitration). Thus, even if a valid Rule 11 agreement formed on the terms that Guillen-Chavez advances in this Court and in the court below, her failure to repeat this specific point before the arbitrator waived her ability to rely on the Rule 11 agreement on appeal in this Court. In the first place, we observe that Guillen-Chavez did object at length to the seating of the arbitrator based on the fact that he was not from El Paso. ReadyOne urges us to look deeper into Guillen-Chavez’s objection and hold that the argument was not preserved because her argument that the arbitrator is “not from El Paso” was based not on the assertion of a contractual right to have an El Paso arbitrator, but on her perception that the arbitrator could not be fair due to a lack of political and cultural understanding of the El Paso’s unique cross-border environment. This distinction walks a razor’s edge. Indeed, it is hard to determine whether the arguments raised when Guillen-Chavez objected to the arbitrator being from outside of El Paso were separate from [*13] her contractual right-to-a-local-arbitrator argument, or whether those concerns merely informed an objection on contractual grounds to the arbitrator being from out-of-town. Apart from this record ambiguity, we also find ReadyOne’s preservation argument difficult to square with the reality that the contested issue of arbitrator identity was extensively and heavily litigated for months in district court.” Guillen-Chavez v. ReadyOne Indus., No. 08-17-00046-CV, 2019 Tex. App. LEXIS 4841, at *11-13 (Tex. App.—El Paso June 12, 2019)

Evidence: “Appellant also asks us to review its other objections to appellees’ reply evidence. We conclude these objections were not sufficiently specific to preserve error for review. See Tex. R. App. P. 33.1(a)(1)(A) (objections must be made “with sufficient specificity to [*19] make the trial court aware of the complaint”). For example, appellant made the following global objection to the trial court: “[Appellant] objects to the emails offered as Exhibits 1 through 40, for the reason that each contains inadmissible hearsay. Tex. R. Evid. 801.” The cardinal rule of error preservation is that an objection must be clear enough to give the trial court an opportunity to correct the alleged error. Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008). Without specifying which statements in each of the forty emails were hearsay, the trial court was left to guess. The fact that the trial court overruled all of appellant’s objections does not in itself preserve error; the objection must have been sufficiently specific in the first instance. See Tex. R. App. P. 33.1(a) (requiring both a specific objection “and” a ruling). Moreover, without specific objections, there is simply nothing for us to review; like the trial court, we are left to guess.” Duncan Litig. Invs., LLC v. Watts, No. 13-18-00265-CV, 2019 Tex. App. LEXIS 4856, at *18-19 (Tex. App.—Corpus Christi June 13, 2019)

You have to comply with the pertinent rules:

Special Appearance: “Although ad litem counsel argued during closing arguments that the trial [*32] court lacked personal jurisdiction over Jeffrey because he had never been served with process, counsel also questioned witnesses, elicited testimony that Jeffrey had not directly harmed Jennifer by his actions, objected on multiple occasions to the admissibility of evidence, questioned a witness on voir dire, requested that the trial court take judicial notice of its entire file, and argued that the Department had not met its burden of establishing, by clear and convincing evidence, that Jeffrey had endangered Jennifer and that termination of his parent rights was in her best interest. Ad litem counsel’s actions at the final hearing “invoked the judgment of the court on a question other than the court’s jurisdiction, recognized that the action was properly pending in Texas, and sought affirmative action from [the trial] court.” See In re D.M.B., 467 S.W.3d at 104; see also Beistel v. Allen, No. 01-06-00246-CV, 2007 Tex. App. LEXIS 4307, 2007 WL 1559840, at *3 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.) (mem. op.) (holding that party made general appearance through counsel when, at hearing to determine whether to terminate wage-withholding obligation, counsel objected to admission of other party’s exhibit, which was affirmative action that impliedly recognized court’s jurisdiction over party). We hold that Jeffrey generally appeared through ad [*33] litem counsel and, therefore, has waived his complaint that the Department violated his due process rights by failing to serve him with process. See In re R.A.G., 545 S.W.3d at 655 (holding that party generally appeared when party answered, appeared at trial by telephone, and his attorney questioned witnesses and made final argument); In re D.M.B., 467 S.W.3d at 103-04 (holding that party generally appeared when ad litem attorney attended adversary hearing and made objections to Department’s request for temporary restraining order and to admissibility of evidence).” In re M.D.M., No. 01-18-01142-CV, 2019 Tex. App. LEXIS 4927, at *31-33 (Tex. App.—Houston [1st Dist.] June 13, 2019)

You have to get a ruling on your complaint:

Dismissal: “We first consider whether the trial court’s alleged error in not dismissing the case rendered the judgment void or merely voidable. “[A] judgment is void only when it is shown that the court had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court.” Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). The dismissal dates in the version of section 263.401 applicable to this case are not jurisdictional. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 641-42 (Tex. 2009) (orig. proceeding). A judgment is not void merely because it was made after the dismissal dates in that version of section 263.401. If a judgment is merely voidable, challenges to that judgment are subject to the rules for preservation of error. See Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 923 (Tex. 2011). To preserve a complaint for appellate review, the record must show (1) the complaint was made to the trial court by a timely and sufficiently specific request, objection, or motion, and (2) the trial court either ruled on the request, objection, or motion, or the trial court refused to rule [*5] and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). We assume for the sake of argument that Grandparents’ motion was timely. The record does not reflect that the trial court ruled on the motion, nor does it reflect that Grandparents sought a ruling but the trial court refused to rule. Grandparents did not mention the motion to dismiss when trial resumed on October 22. Based on these facts, we conclude Grandparents have not preserved error regarding dismissal. We overrule their first issue.” In re P.N.T., No. 14-18-01115-CV, 2019 Tex. App. LEXIS 4743, at *4-5 (Tex. App.—Houston [14th Dist.] June 11, 2019)

The complaint you raise on appeal must be the complaint you raised in the trial court:

Jury Charge: “At the charge conference, Ramji objected to the use of the word “damages” in Jury Question 3 and requested that the term “lost profits” be used instead. He also objected that “the instruction on the elements of damages is defective because there is no evidence that there was a pending sale of the properties to [Ramji] at the time of the alleged interference.” However, he never objected to the instruction using the difference between the price that 6100 Clarkson had to agreed to pay the Clarks [*14] and “the amount [it] would have made on the sale of the properties to [Ramji],” nor did he suggest or request that the jury be instructed to look at the 2016 sales price price of the properties in calculating the damages. Thus, to the extent that Ramji is complaining about the instruction regarding the measure of damages submitted to the jury in Jury Question 3, the issue is waived. . . . .Thus, damages are measured by the instruction given. See Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007).” Ramji v. 6100 Clarkson, L.P., No. 01-18-00044-CV, 2019 Tex. App. LEXIS 4926, at *13-14 (Tex. App.—Houston [1st Dist.] June 13, 2019)

We then had the typical significant number of cases which held that parties failed to preserve error because they did not raised their complaint in the trial court.

All for now.

Yours, Steve Hayes

shayes@stevehayeslaw.com; www.stevehayeslaw.com; 817/371-8759

Error Preservation in Texas Civil Cases, June 11, 2019

June 11, 2019

Dear All:

Table of Contents

The Supreme Court held that one complaint which may be raised for the first time on appeal is a complaint about the specificity of a court order establishing what a parent must do to receive child custody, when a parental-right termination under Family Code Section 161.001(b)(1)(O) is based on a violation of that order

The Supreme Court confirmed in a Family Code Chapter 201 proceeding, if you want a jury trial, you better ask for it before the associate judge

You don’t waive service, nor your ability to contest a default judgment taken after invalid service in one case by answering in another lawsuit in the same court

You must comply with the pertinent rules

Avoidance
Summary Judgment

You have to get a trial court ruling on your complaint

Affidavits

The Blurbs

I missed this one earlier, but the Supreme Court held that one complaint which may be raised for the first time on appeal is a complaint about the specificity of a court order establishing what a parent must do to receive child custody, when a parental-right termination under Family Code Section 161.001(b)(1)(O) is based on a violation of that order:

Order: “Next, we address whether the court of appeals erred in failing to review the trial court’s order to ensure it was sufficiently specific to warrant termination under section 161.001(b)(1)(O). See Tex. Fam. Code § 161.001(b)(1)(O). In essence, to [*14] terminate parental rights under section 161.001(b)(1)(O): (1) the parent must have failed to comply with the provisions of a court order, which (2) specifically established the actions necessary for the parent to receive custody of the child from the Department, which serves as the permanent or temporary conservator of the child. Id. The mother argues that the evidence was legally insufficient to support the first prong of section 161.001(b)(1)(O) and that the lower courts are required to review whether the order was sufficiently specific for the mother to follow. . . . After a permanency hearing, the trial court adopted the Department’s service plan and incorporated it into its order. . . . A trial court order referenced by section 161.001(b)(1)(O) is a mandate or directive that establishes some steps or actions necessary for the parent to obtain return of the child who is in the Department’s custody. See Tex. Fam. Code § 161.001(b)(1)(O); . . . .Section 161.001(b)(1)(O) makes clear that an order must be sufficiently specific to warrant termination of parental rights for failure to comply with it. See Tex. Fam. Code § 161.001(b)(1)(O). . . . . Because a trial court must necessarily decide that a court order is sufficiently specific for the parent to comply before terminating a parent’s rights under section 161.001(b)(1)(O), a trial court cannot terminate parental rights for failure to comply without first considering the order’s specificity. See Tex. Fam. Code § 161.001(b)(1)(O). Likewise, an appellate court errs when it upholds termination under a section 161.001(b)(1)(O) finding without considering the specificity of the order. Here, the court of appeals noted that the mother did not argue the service plan itself was not sufficiently specific, characterizing her challenge as to the specificity of the order only. See ___ S.W.3d at ___, 2018 Tex. App. LEXIS 2723 at *10. Because the trial court incorporated the service plan into the order, however, we conclude that the mother’s challenge encompassed the specificity of the service plan. [The court of appeals] did not address the specificity of the order’s provisions. See id. at ___, 2018 Tex. App. LEXIS 2723 at *11. We hold that the court of appeals erred in failing to address the specificity of the order, which included the service plan. . . . [T]he court of appeals failed to address the specificity of the order under section 161.001(b)(1)(O). Therefore, we remand the case to the court of appeals for further proceedings consistent with this opinion.” In the Interest of N.G., No. 18-0508, 62 Tex. Sup. Ct. J. 1069, 2019 WL 2147263, 2019 Tex. LEXIS 465, at *13-19 (May 17, 2019)

I also cogitated about this one, but decided that this was an error preservation holding, in which the Supreme Court confirmed in a Family Code Chapter 201 proceeding, if you want a jury trial, you better ask for it before the associate judge:

Jury Trial: “Chapter 201 of the Family Code fulfills the statutory promise of a jury trial on demand by allowing for a jury trial in either the referring court or before an associate judge. Associate judge proceedings do not occur by happenstance, nor are they compelled. So with a timely objection, parties can choose to have the referring court adjudicate the merits following a bench or jury trial. But once the parties elect a bench trial before the associate judge, Chapter 201 does not confer a right to demand a jury trial in a de novo hearing. If a de novo hearing is [*20] requested, the referring court has discretion to grant a first-time jury request, but the statute cannot reasonably be read as affording the parties a right to a jury trial at that juncture. And because we agree with the court of appeals that the trial court was not obligated to grant Mother’s jury demand under the circumstances, we affirm the court of appeals’ judgment.” In re A.L.M.-F., No. 17-0603, 62 Tex. Sup. Ct. J. 910, 2019 Tex. LEXIS 426, at *19-20 (May 3, 2019)

You don’t waive service, nor your ability to contest a default judgment taken after invalid service in one case by answering in another lawsuit in the same court:

Service: “ In response, Anissa does not dispute that the record clearly demonstrates that the service returns were deficient, rather she contends that Priscilla waived defective service because she had actual notice of the lawsuit in which the Default Judgment was entered and she generally appeared in the hearing before the trial court in which the challenged Default Judgment was rendered. This argument is without merit.

First, the argument that because Priscilla had actual notice of Cause Number P-08376 and thus waived service is unavailing. It is well established that “[a]ctual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him.” Offshore Express, 2018 WL 6542502, at * 3 (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Harrell v. Mex. Cattle Co., 11 S.W. 863, 865 (Tex. 1889)).

Second, the argument that Priscilla—despite not answering—entered into a general appearance in Cause Number P-08376 when her attorney asked at the May 8, 2018 hearing in Cause Number P-08448 to file an answer in Cause Number P-08376 is creative but ultimately equally unavailing. Anissa is correct that Texas Rule of Civil Procedure 120 provides that a defendant may, “in person, or by attorney, or by his duly authorized agent, enter an appearance in open court” and that “[s]uch appearance shall be noted by the judge upon his docket and entered in the minutes, and shall have the same force and effect as if the citation had been duly issued and served as provided by law.” Tex. R. Civ. P. 120. Anissa is also correct that “a party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.” Exito Elecs., Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). But, in this case, Priscilla did not make any appearance in Cause Number P-08376, the lawsuit in which the Default Judgment was entered. The only lawsuit Priscilla or her lawyer appeared in was Cause Number P-08448, Priscilla’s own lawsuit.” Wyatt v. Deal, No. 02-18-00246-CV (Tex. App.–Fort Worth June 6, 2019).

You must comply with the pertinent rules:

Avoidance: “Garza argues that the $260,000 fee awarded to Pruneda was unconscionable and against public policy. However, “[a]n allegation that a provision in a contract is void, unenforceable, or unconscionable is a matter in the nature of avoidance and must be affirmatively pleaded. If a party fails to plead the affirmative defense, it is waived.” Godoy v. Wells Fargo Bank, N.A., 542 S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2017, pet. granted); see Tex. R. Civ. P. 94. In her answer to Pruneda’s suit and in her response to Pruneda’s motion for summary judgment, Garza never argued that the contract was unconscionable. She raised the issue of conscionability for the first time in her motion for new trial. Therefore, Garza has waived this argument.” Garza v. Pruneda, No. 13-18-00222-CV, 2019 Tex. App. LEXIS 4639, at *6 (Tex. App.—Corpus Christi June 6, 2019)

Summary Judgment: “On appeal, Wilson asserts that during the summary judgment hearing she was not permitted “to present email evidence by Plaintiff [the LRC Firm] or evidence of Plaintiffs [sic] misconduct pursuant to Tex. R. Civ. P. 8.04 [sic] and 801.” She argues the trial court [*2] erred by excluding her evidence, which does not appear in the record but is attached to her appellate brief. Because Wilson did not file a response to the motion for summary judgment, the evidence was not before the trial court and, thus, is outside the scope of our review. See Tex. R. Civ. P. 166a(c) (“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.”); see also D.R. Horton—Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (“A non-movant must present its objections to a summary judgment motion expressly by written answer or other written response to the motion in the trial court or that objection is waived.”). Thus, Wilson’s appellate arguments do not form a proper basis to reverse the trial court’s judgment.” Wilson v. Lamberth Ratcliffe Covington Pllc, No. 05-18-01207-CV, 2019 Tex. App. LEXIS 4696, at *1-2 (Tex. App.—Dallas June 6, 2019)

You have to get a trial court ruling on your complaint:

Affidavits: “Willman objected to Mary Lee’s and Ben Thompson’s affidavits, but the trial court did not explicitly rule on those objections. Where the record does not reflect that the trial court ruled or refused to rule on objections to summary judgment evidence, we may not infer a ruling based solely on the trial court’s summary judgment decision. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018). By failing to obtain an express or implied ruling on his objections to the summary judgment evidence, Willman waived the objections. See Tex. R. App. P. 33.1(a);” In re Estate of Spiller, No. 04-18-00522-CV, 2019 Tex. App. LEXIS 4608, at *11 n.3 (Tex. App.—San Antonio June 5, 2019)

As usual, numerous decisions held that parties failed to preserve error by failing to make their complaints in the trial court.

All for now.

Yours, Steve Hayes

www.stevehayeslaw.com; shayes@stevehayeslaw; 817/371-8759

Error Preservation in Texas Civil Cases, 6/3/19

June 1, 2019

Dear Gang:

The main takeaway this week:  get a ruling on your complaints.  If you don’t, you’ve not preserved error.

You must get a ruling on your complaint:

Affidavit: “A well-developed body of law governs affidavits in the summary judgment context. The case law draws a distinction between defects in form and substance. See Dailey v. Albertson’s, Inc., 83 S.W.3d 222, 225 (Tex.App.–El Paso 2002, no pet.).  Form defects must be preserved by both an objection and ruling at the trial court, while substantive objections can be raised even on appeal. Id.; MVS Int’l Corp. v. Int’l Adver. Sols., LLC, 545 S.W.3d 180, 191 (Tex.App.–El Paso 2017, no pet.). Hearsay is an objection to form. Vasquez v. S. Tire Mart, LLC, 393 S.W.3d 814, 819 (Tex.App.–El Paso 2012, no pet.); Rockwall Commons Associates, Ltd. v. MRC Mortg. Grantor Tr. I, 331 S.W.3d 500, 507 (Tex.App.–El Paso 2010, no pet.); see also Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex.App.–Dallas 2011, no pet.)(holding that hearsay statement in affidavit filed in support of summary judgment is a defect in form that must be objected to at the trial). Consequently, unless an order sustaining a hearsay objection to summary judgment evidence is reduced to writing, signed, and entered of record, the evidence remains part of the summary judgment proof even if a party has objected to an opponent’s summary judgment evidence. See Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166 (Tex. 2018), citing Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 842 (Tex.App.–Dallas 2003, no pet.). Because there was no ruling on the County’s objection below, we are constrained to accept the news article at face value. See also Tex.r.evid. 802 (“Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.”).” Cty. of El Paso v. Baker, No. 08-18-00012-CV, 2019 Tex. App. LEXIS 4498, at *14-15 (Tex. App.—El Paso May 31, 2019)

Attorney’s Fees (TCPA): “Although Bresenhan requested attorney’s fees under Section 27.009(b) in his response to Calkins and Norman’s TCPA motion to dismiss, the appellate record does not include a written or oral ruling [*23] on his request. See Tex. R. App. P. 33.1(a)(2). The probate court’s written order denying the motion to dismiss states: ‘As requested, the Court takes judicial notice of the contents of the Court’s file, and at this time, the motion to dismiss of Richard Calkins, and Susan C. Norman, under Chapter 27 of the Texas Civil Practice & Remedies Code is DENIED.’ It does not include any language refusing to award Bresenhan attorney’s fees. Nor does it implicitly deny Bresenhan’s fees request, as the denial of a respondent’s attorney’s fees does not necessarily flow from the denial of a motion to dismiss. See Tex. Civ. Prac. & Rem. Code §§ 27.003, .009(b). Quite the opposite,  a finding that a motion to dismiss is not well taken must precede an award of the respondent’s attorney’s fees under Section 27.009(b). See id. § 27.009(b) (requiring finding that motion to dismiss “is frivolous or solely intended to delay” before court may award attorney’s fees to respondent). Likewise, no oral ruling appears in the court reporter’s transcript. During argument on Bresenhan’s fee request, the probate court questioned whether Bresenhan had timely filed the request and supporting affidavit under the local rules. Rather than argue the timeliness of the request or press for the probate court for a ruling, [*24] Bresenhan responded: “All right. Fine. Then we’ll just limit to denying the motion.” And the probate court signed an order to that effect. By failing to obtain a ruling from the probate court, Bresenhan has not preserved for appellate review any issue regarding his request for attorney’s fees. See Tex. R. App. P. 33.1(a)(2); see also Jackson, 2006 Tex. App. LEXIS 9495, 2006 WL 3095384, at *3; Kadhum, 2006 Tex. App. LEXIS 3401, 2006 WL 1125240, at *2 n.4. Accordingly, we overrule his issues on appeal.” In re Estate of Calkins, No. 01-18-00160-CV, 2019 Tex. App. LEXIS 4448, at *22-24 (Tex. App.—Houston [1st Dist.] May 30, 2019)

Discovery: “In its first issue, the County challenges the district court’s order “refusing to permit” the County to conduct discovery as to the reasonableness of EEG’s costs. Specifically, the County wanted to depose an EEG witness before the district court’s hearing on the motion for costs. However, the County did not obtain an adverse ruling from the district court to preserve this issue for appeal. See Tex. R. App. P. 33.1(a). First, the County never noticed the deposition of an EEG witness. Second, the County did not request a continuance to depose an EEG witness before the motion for costs was heard. Third, the County did not renew its announcement of “not ready” for an evidentiary hearing when the district court stated its intent to proceed with the hearing or when Owens took the stand to testify in support of EEG’s calculation of its costs for production of documents. On this record, we cannot conclude that the County has shown that [*9] the district court refused to permit discovery as to the reasonableness of EEG’s costs. Accordingly, we overrule the County’s first issue.” Wichita Cty. v. Envtl. Eng’g & Geotechnics, Inc., No. 03-18-00434-CV, 2019 Tex. App. LEXIS 4488, at *8-9 (Tex. App.—Austin May 31, 2019)

All for now.  More next week.

Yours, Steve

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, 5/25/19

May 25, 2019

Dear All:

Table of Contents:

The Supreme Court held that an issue was expressly presented in a motion for summary judgment–and also reminded us that our complaints must be raised in the trial court

-Summary Judgment
-Quasi-estoppel and waiver

In one case, a court held that a party did not waive its complaint about the judgment by “drafting, submitting, and approving the judgment.”

-Judgment

One court of appeals held, in effect, that the complaint was sufficiently specific

-Constitutional

Your complaint on appeal must comport with the complaint you made in the trial court–though it looks like to me this is a subject matter jurisdiction/standing complaint, which (even if erroneous) can be raised for the first time on appeal

-Subject matter jurisdiction

Your complaint must be timely

-Jury Trial

You must make the trial court aware of your complaint–it’s not enough to just file the motion

-Continuance

The Blurbs

Here is a case in which the Supreme Court held that an issue was expressly presented in a motion for summary judgment–and another in which it reminds us that our complaints must be raised in the trial court:

Summary Judgment: “The Newspaper argues it cannot be liable for defamation for accurately reporting the allegations of chamber members because it is true that these third parties made the allegations of impropriety against Carter. Carter asserts that the Newspaper waived this issue because it was not presented to the trial court in its motion for summary judgment, but we disagree. The Newspaper argued in its motion for summary judgment that statements in the articles regarding allegations that had been made against Carter were substantially true. Although the Newspaper did not label the statements as “accurate reporting of allegations,” it nevertheless presented the issue to the trial court. See Tex. R. Civ. P. 166a(c) (“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.”).” Scripps Np Operating v. V., No. 17-0046, 2019 Tex. LEXIS 494, at *21 (May 24, 2019)

Quasi-estoppel and waiver: “In an argument raised for the first time on appeal, the plaintiffs also assert quasi-estoppel and waiver principles preclude Garza from relying on section 101.106(f) based on his contractual agreement to refrain from acting as a police officer while working as a courtesy patrol officer. Garza counters that these theories are waived and, in the alternative, lack merit because any benefit to the apartment complex and any attempt to circumscribe his responsibilities by private-party contract are irrelevant to whether he was objectively doing his job as a peace officer….The plaintiffs’ final arguments—that the doctrines of quasi-estoppel and contractual waiver preclude section 101.106(f)’s application—are waived and, in the alternative, lack merit. These arguments, which are based on Garza’s purported agreement to adhere to the apartment complex’s policies and procedures for courtesy patrol officers, were raised for the first time on appeal. n. 79 n. 79 See Tex. Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (constitutional claim on appeal in paternity suit waived by failure to raise complaint at trial).” Garza v. Santellana, No. 17-0724, 2019 Tex. LEXIS 497, at **13, 23 (May 24, 2019)

Here is a case in which a court held that a party did not waive its complaint about the judgment by “drafting, submitting, and approving the judgment.”

Judgment: “Before turning to the merits, we first address Arriaga’s assertion that Edes waived any complaint regarding the judgment by drafting, submitting, and approving the judgment signed by the trial judge. He argues the doctrine of “invited error” precludes such complaints.

Under some circumstances, when a party files a motion to enter judgment and the trial court grants the motion and renders the requested judgment, the movant cannot later complain of that judgment. Davenport v. Hall, No. 04-14-00581-CV, 2019 WL 1547617, at *7 (Tex. App.—San Antonio Apr. 10, 2019, no pet. h.). The reason for this rule is that a party may not request the trial court take an action and then complain on appeal when the trial court did what it was asked to do. Id.

The supreme court has recognized, however, that “[t]here must be a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms.” Hooks v. Samson Lone Star, Ltd. P’ship, 457 S.W.3d 52, 67 (Tex. 2015) (quoting First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989) (per curiam)). A proposed judgment submitted by a party need not note the submitting party’s disagreement with the contents of the judgment to maintain the right to appeal. Andrew Shebay & Co., P.L.L.C. v. Bishop, 429 S.W.3d 644, 647 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Rather, clear objections in the trial court or post-trial proceedings evidencing disagreement with the judgment are sufficient. Id.

Here, the record does not contain a motion for judgment; rather, Edes filed a letter with the court submitting a proposed judgment. The letter, signed by Edes’s attorney, informed the judge that counsel approved the judgment and was forwarding a copy to opposing counsel for signature.

Ultimately, the judgment was signed by the trial judge. The statement “APPROVED BY” was above Edes’s attorney’s signature on the judgment.

Arriaga argues that Edes should have reserved a right to complain in his letter submitting the proposed judgment or noted that he did not approve as to the substance of the judgment. Having failed to do so, Arriaga contends Edes may not attack the judgment. Admittedly, Edes did not express any reservations about the judgment. But, even assuming his approval was to both form and substance of the judgment, Edes objected at the charge conference when Arriaga successfully argued to exclude from the jury’s consideration issues on lost wages and mental anguish. Then, after the trial court signed the judgment, Edes moved for a new trial on the same grounds as well as others. Finally, the judgment itself acknowledges that Edes’s objections to the charge were overruled. See Hooks, 457 S.W.3d at 67 (explaining that when argument asserted on appeal is not inconsistent with the judgment, the argument is not waived even when plaintiff files proposed judgment). Given all the circumstances in this case, we cannot conclude that Edes has waived his right to complain about the judgment.” Edes v. Arriaga, No. 05-17-01278-CV, 2019 Tex. App. LEXIS 4319, at *6-9 (Tex. App.—Dallas May 24, 2019)

Here is a case in which the court of appeals held, in effect, that the complaint was sufficiently specific:

Constitutional: “Mother nevertheless contends section 161.211(a), as applied to her, is unconstitutional because she “first became aware of the fraud, duress, or coercion in her execution of the affidavit” after section 161.211(a)’s six-month period elapsed. . .The Department and Intervenors maintain Mother neither preserved her constitutional challenge in the trial court nor adequately briefed her argument that a due process right was violated. To preserve a constitutional claim for appellate review, a party must raise the issue in the trial court. Tex. R. App. P. 33.1; In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (for appellate review, party must present arguments, including constitutional arguments, to trial court by timely request, motion, or objection, state specific grounds therefor, and obtain ruling). Although Mother did not identify her constitutional challenge as an “as applied” challenge in the trial court, she argued that a section 161.211(a) dismissal would violate her due process rights under the facts presented in this case. The trial court granted Intervenors’ plea to the jurisdiction, rejecting Mother’s argument. Accordingly, [*7] we conclude Mother sufficiently preserved error for this appeal.” R.M., No. 05-18-01127-CV, 2019 Tex. App. LEXIS 4318, at *6-7 (Tex. App.—Dallas May 24, 2019)

Your complaint on appeal must comport with the complaint you made in the trial court–though it looks like to me this is a subject matter jurisdiction/standing complaint, which (even if erroneous) can be raised for the first time on appeal:

Subject matter jurisdiction: “In her second issue, Mother contends the trial court should have denied Intervenors’ petition in intervention because the trial court must have subject matter jurisdiction over any claims for relief asserted by Intervenors and, in this case, Intervenors specifically assert the trial court lacked subject matter jurisdiction. Mother further claims Intervenors failed to show they could have brought all or part of the same suit or would have been able to defeat all or part of the record if suit were brought against them. . . . . To preserve error for appellate review, a party must make a timely request, objection, or motion in the trial court stating the grounds for the ruling being sought; and the trial court must rule on the request, objection, or motion or the party must object to the trial court’s refusal to rule. Tex. R. App. P. 33.1; Tate v. Andrews, 372 S.W.3d 751, 754 (Tex. App.—Dallas 2012, no pet.). The objecting party’s argument on appeal must comport with its argument in the trial court. Knapp v. Wilson N. Jones Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.). Mother filed no written motion to strike the petition in intervention and, during the trial court’s hearing, objected to the intervention only on the basis that Intervenors lacked standing to intervene under the family [*17] code. Intervenors responded that the rules of civil procedure — and not the family code — applied to Mother’s bill of review and Intervenors clearly had a justiciable interest in that the bill of review sought to undo the termination of Mother’s parental rights to their adopted child. Mother did not object that Intervenors’ pleadings refuted subject matter jurisdiction or to Intervenors’ justiciable interest apart from whether they had standing under the family code. Because Mother did not raise these allegations of error in the trial court, she has not preserved the issue for appellate review. See Tex. R. App. P. 33.1(a)(1);” R.M., No. 05-18-01127-CV, 2019 Tex. App. LEXIS 4318, at *16-17 (Tex. App.—Dallas May 24, 2019)

Your complaint must be timely:

Jury Trial: “To invoke and perfect the right to a jury trial in a civil case, a party must comply with the applicable rules of civil procedure. Singh v. Fed. Nat’l Mortg. Ass’n, No. 03-14-00354, Reporter 2014 Tex. App. LEXIS 13030, 2014 WL 6893696, at *3 (Tex. App.—Austin Dec. 5, 2014, no pet.) (mem. op.). Rule 216 requires a party to make a jury request and pay [*6] the jury fee “a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance.” Tex. R. Civ. P. 216. The clerk’s record does not reflect that a jury fee was paid, and Wethy has not directed us to any record or evidence to the contrary. Nevertheless, for purposes of this appeal, we will assume Wethy perfected his right to a jury trial. Still, a party that has perfected its right to a civil jury trial may subsequently waive that right. See In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no pet.); Addicks v. Sickel, No. 02-03-00218-CV, 2005 Tex. App. LEXIS 2498, 2005 WL 737419, at *2-3 (Tex. App.—Fort Worth Mar. 31, 2005) (mem op.). To preserve his complaint that he was denied his perfected right to a trial by jury, Wethy was required to either object on the record to the county court’s action or indicate affirmatively in the record that he intended to stand on his perfected right to a jury trial. See M.P.B., 257 S.W.3d at 811; Addicks, 2005 Tex. App. LEXIS 2498, 2005 WL 737419, at *2-3. Showing preservation is a tall order here. In the absence of a reporter’s record, we can only look to the clerk’s record to ascertain whether Wethy preserved his complaint about the denial of a jury trial. Nothing in the clerk’s record shows that Wethy objected to the lack of a jury trial or affirmatively indicated that he intended to stand on his perfected right to a jury trial before the county court conducted the bench trial. The clerk’s record reflects that Wethy’s post-judgment motion for reconsideration was the first time he complained about the lack of a jury trial, and this was too late to preserve error.” Wethy v. Fannie Mae, No. 02-17-00329-CV, 2019 Tex. App. LEXIS 4280, at *5-7 (Tex. App.—Fort Worth May 23, 2019)

You must make the trial court aware of your complaint–it’s not enough to just file the motion:

Continuance: “A trial court is not required to consider a motion that is not brought to its attention. See Murphree v. Cooper, No. 14-11-00416-CV, 2012 Tex. App. LEXIS 4829, 2012 WL 2312706, at *1 (Tex. App.—Houston [14th Dist.] June 19, 2012, no pet.) (mem. op.); In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling. See Murphree, 2012 Tex. App. LEXIS 4829, 2012 WL 2312706, at *1; Smith, 263 S.W.3d at 96; see also Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 448-49 (Tex. App.—Dallas 2011, no pet.) (filing motion for continuance, and setting motion for hearing, was insufficient to bring [*5] the motion to the attention of the trial court). When the record does not show that a motion for continuance was filed and brought to the trial court’s attention before final judgment is rendered, any error is not preserved. See Tex. R. App. P. 33.1(a); Murphree, 2012 Tex. App. LEXIS 4829, 2012 WL 2312706, at *1. Father filed his motion for continuance of the SAPCR trial setting approximately twelve hours before trial was set to begin. He did not set the motion for a hearing. Neither Father nor his counsel appeared at the time set for trial to present and argue the merits of Father’s motion for continuance. The record does not show that Father presented the motion for continuance to the trial court with a request for a ruling or otherwise brought it to the trial court’s attention before the final judgment was rendered. The record also reveals no ruling on the motion. Thus, appellant has failed to preserve this issue for appellate review. See Tex. R. App. P. 33.1(a).” In the Interest of W.A.B., No. 14-18-00181-CV, 2019 Tex. App. LEXIS 4117, at *4-5 (Tex. App.—Houston [14th Dist.] May 21, 2019)

As always, courts issued a litany of decisions in which they held that parties had failed to preserve error by failing to raise complaints in the trial court.

I hope this helps.  All for now.

Yours, Steve Hayes (shayes@stevehayeslaw.com)

www.stevehayeslaw.com; 817/371-8759

Error Preservation in Texas Civil Cases, 5/18/19

May 18, 2019

Dear All:

Well, the courts have been busy the last couple of weeks.

Table of Contents

Some issues you can raise for the first time on appeal

  • Standing
  • Authenticity of a Document
  • Indian Child Welfare Act
  • Failure of Traditional MSJ to prove entitlement to judgment as a matter of law
  • Lack of Statutorily Required Notice

Several cases held that parties preserved a complaint about the charge

You have to comply with the pertinent rules

  • Capacity
  • Offer of Proof (Expert)

The complaint you raise on appeal must comport with the complaint you made in the trial court

  • Attorney’s Fees
  • Attorney’s Fees
  • Evidence
  • Jury Charge

You have to get a ruling

  • Discovery
  • Summary Judgment
  • Summary Judgment

Your complaint must be timely

  • Dismissal

One case held that a party did not waive its complaint about the lack of impartiality of an arbitrator by proceeding to arbitration even though knowing the arbitrator was a “friend” to the opposing party–but not knowing the extent of their interrelationship
Arbitration

The Blurbs

Some issues you can raise for the first time on appeal.

Authenticity of a Document: “In In re Estate of Guerrero, this court, sitting en banc, determined that under precedent from the Supreme Court of Texas and from this court, a document submitted as evidence in a summary-judgment or a motion-to-compel-arbitration context has a substantive defect and is incompetent if there was a complete failure to authenticate the document. See 465 S.W.3d 693, 705, 706-08 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc).” Maree v. Zuniga, No. 14-17-00210-CV, 2019 WL 2000464, 2019 Tex. App. LEXIS 3651, at *15-16 (Tex. App.—Houston [14th Dist.] May 7, 2019, no pet. hist.).

Indian Child Welfare Act: “In her second issue, Mother contends “[t]he case is marred by an abject, persistent, prejudicial, and reversible failure to comply with” the Indian Child Welfare Act (ICWA). See 25 U.S.C. §§ 1901-63. Mother did not raise her ICWA objection in the trial court. Under Texas law, her failure to object precludes her complaint on appeal. See Tex. R. App. P. 33.1(a). However, this court has held the ICWA preempts state law to the extent there is a conflict. . . .A complaint alleging a failure to follow the ICWA may be raised for the first time on appeal. J.J.C., 302 S.W.3d at 899.” In the Interest of M.T.R., No. 14-18-01058-CV, 2109 Tex. App. Lexis 3993 (Tex App.–Houston [14th Dist.] May 16, 2019)

Failure of Traditional MSJ to prove entitlement to judgment as a matter of law: “In its second declaration, the trial court ruled that under Paragraph 43 of the Note and Paragraph 13 of the First Modification, “arbitration cannot be commenced unless a court determines that the jury trial waiver is not enforceable.” On appeal, Carter asserts that under the plain text of the Note and First Modification, there is no such requirement. Amegy Bank asserts that Carter waived this [*14] argument by not presenting it in his summary-judgment response in the trial court. Even if Carter did not raise this argument in his summary-judgment response, the law does not require that he have done so because his challenge constitutes a complaint that Amegy Bank’s summary-judgment evidence does not prove as a matter of law Amegy Bank’s entitlement to summary judgment on a traditional ground. See M.D. Anderson Hosp. & Tumor Institute v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Thus, Carter still can raise this complaint. See id.” Carter v. ZB, Nat’l Ass’n, No. 14-17-00900-CV, 2019 Tex. App. LEXIS 3645, at *13-14 (Tex. App.—Houston [14th Dist.] May 7, 2019)

Lack of Statutorily Required Notice: “Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c)(1)-(2) (West 2018). The procedures set out in Article 55.02 are mandatory and must be complied with during an expunction hearing. Tex. Dep’t of Pub. Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.—San Antonio 1989, no writ). When the record fails to demonstrate that the agency was notified pursuant to the statute, the record reveals a violation of the statute, and the expunction order must be set aside. See Rodriguez v. T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.—San Antonio 1991, no writ) (reversing trial court and setting aside expunction order after finding that hearing took place without notice to respondent); Riley, 773 S.W.2d at 758 (setting aside expunction order because record did not reflect agencies had been notified of expunction [*5] hearing and because court violated thirty-day waiting period). Here, the record shows that DPS never received notice of the expunction hearing by any of the avenues set forth in the statute. Moreover, there is nothing in the record to reflect that DPS waived the notice requirement. It was therefore error for the trial court to grant Butler’s petition for expunction without providing notice to DPS of the hearing. Thus, error is apparent on the face of the record because the record does not reflect that any agency, including DPS, received notice of the expunction hearing. The violation of this mandatory statutory requirement requires us to set aside the trial court’s nunc pro tunc order of expunction.” Ex parte Butler, No. 06-18-00110-CV, 2019 Tex. App. LEXIS 3618, at *4-5 (Tex. App.—Texarkana May 7, 2019)

Several cases held that parties preserved a complaint about the charge:

Jury Charge: “Goldberg argues that Sloane did not preserve his jury charge issue [regarding an affirmative defense] for review because he did not tender the requested question and instruction to the trial court at the charge conference and obtain a ruling. We disagree. As we explained in Hiles, “[w]hen determining whether a complaint of charge error is preserved, we ask whether the complaining party ‘made the trial court aware of the complaint, timely and plainly, and obtained a ruling.'” 402 S.W.3d at 831 (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)). Here, the trial court discussed the requested question and instruction on the record at the charge conference and explained at some length why the court was refusing to submit the question and instruction. Sloane made the trial court aware of his complaint and obtained a ruling on the record at the charge conference. This was sufficient to preserve the jury charge issue for our review. See Rosell, 89 S.W.3d at 657 (holding party preserved error when party offered instruction and objected when not submitted; trial court’s ruling on objection was sufficient despite lack of endorsement of “refused” on proposed instruction).” Sloane v. Goldberg B’Nai B’Rith Towers, No. 14-17-00557-CV, 2019 Tex. App. LEXIS 3644, at *14 n.7 (Tex. App.—Houston [14th Dist.] May 7, 2019)

Jury Charge: “Neal timely preserved error at the charge conference by tendering the fraud-in-the inducement question and by obtaining a ruling. The court was reasonably aware of Neal’s complaint as evidenced by the court’s on-the-record comments and the extended on-the-record colloquy between the court and Neal’s counsel. This Court, following the reasoning of Payne, concludes that Neal did not waive his complaint to the court’s charge.

There is an alternate reason that Neal preserved error. This is not a [*10] case where the parties agreed to submit objections after the charge was read and the court consented to the parties’ agreement. See Missouri Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 873 (Tex. 1973). Rather, the court here directed the parties to state their objections after the charge was read and the jury had begun its deliberation, and the court even pronounced that neither party had waived objections to the court’s charge by complying with its directive. Common sense mandates that HN4 a party, compelled by the court’s ruling to state its objections to the charge after the jury has begun its deliberations, does not waive its complaint.” Neal v. Guidry, No. 03-17-00525-CV, 2019 Tex. App. LEXIS 3884, at *9 (Tex. App.—Austin May 15, 2019)

Jury Charge: “In its third issue, TxDOT argues that the trial court reversibly erred by issuing two erroneous jury instructions. [*21] In particular, TxDOT contends that the first instruction was a “permissive pretext” instruction which confused the jury about the ultimate issue Flores had the burden of proving, and further constituted an impermissible comment on the weight of the evidence. TxDOT likewise argues that a second jury instruction constituted an impermissible comment on the weight of the evidence.

Preservation

As a preliminary matter, we address Flores’s contention that TxDOT has not preserved this issue for our review.  During a charge conference prior to submitting the case to the jury, the trial court afforded the parties an opportunity to discuss Flores’s proposed jury charge. The proposed jury charge contained the following instruction:

You are instructed that GENARO FLORES is not required to produce direct evidence of an unlawful motive. Discrimination, if it exists, is a fact which is seldom admitted, but is a fact which you may infer from the existence of other facts.

TxDOT objected that this instruction was “an improper comment on the weight of the evidence,” which the trial court overruled. Because TxDOT objected to the proposed instruction at trial for the same reason it does on appeal, we hold that TxDOT properly preserved this issue for our review as the objection at trial comports with its argument on appeal. SeeTex. R. App. P.33.1; Tex. R. Civ. P. 274; Baker, 355 S.W.3d at 383.

Flores also submitted the following proposed instruction:

Proof by a preponderance of the evidence that an [*23] employer’s stated reason for an employment action is false is ordinarily sufficient to permit you to find that the employer was actually motivated by discrimination.

TxDOT also objected to this instruction, arguing that the instruction was “a comment on the weight of the evidence.” Citing Kanida v. Gulf Coast Med. Pers., L.P., 363 F.3d 568, 575-76 (5th Cir. 2004), TxDOT also disagreed with Flores’s argument that under Ratliff v. City of Gainesville, Tex., 256 F.3d 355, 359-60 (5th Cir. 2001), a trial court reversibly errs to fail to advise the jury that inferred discrimination may be established from evidence of pretext. The trial court overruled this objection as well. Again, given that (1) TxDOT objected to the instruction on the basis of it constituting a “permissive pretext” which could potentially confuse the jury, (2) the trial court overruled the objection, and (3) TxDOT’s trial objection comports with its appellate argument, we hold that it has preserved this instruction for our review as well. SeeTex. R. App. P.33.1; Tex. R. Civ. P. 274; Baker, 355 S.W.3d at 383.” Tex DOT v. Flores, No. 08-17-00047-CV, 2019 Tex. App. Lexis 3918 (Tex. App.–El Paso May 15, 2019)

You have to comply with the pertinent rules:

Capacity: “Gloria next argues that appellees failed to prove standing or capacity. A plaintiff must have both standing and capacity to bring suit. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome, whereas capacity is a procedural issue addressing the personal qualifications of a party to litigate. Id. With regard to standing, Gloria argues that only Z Ready Mix had legal standing to bring a breach-of-fiduciary-duty claim against her. Appellees agree, stating that only Z Ready Mix asserted the claim against Gloria and the jury was only asked whether Gloria failed to comply with her fiduciary duty to Z Ready Mix. Gloria further argues that neither Noelia nor Mario had standing or capacity to sue on behalf of Z Ready Mix. This argument concerning the qualification of Noelia and Mario to litigate on behalf of Z Ready Mix is a challenge to capacity. Unlike a challenge to standing, a challenge to capacity must be raised in a verified answer before the trial court. See Tex. R. Civ. P. 93. Because Gloria did not file a verified answer challenging capacity, this argument has not been preserved for our review. See Tex. R. App. P. 33.1.” Zermeño v. Garcia, No. 14-17-00843-CV, 2019 Tex. App. LEXIS 3766, at *9 (Tex. App.—Houston [14th Dist.] May 9, 2019)

Offer of Proof (Expert): “ Singh v. Payan, No. 04-17-00111-CV, 2018 WL 4096402, at *3 (Tex. App.—San Antonio Aug. 29, 2018, no pet.) (mem. op.) (“To be sufficient to preserve error, an offer of proof must describe or show the nature of the evidence specifically enough that the reviewing court can determine its admissibility.” (citing TEX. R. EVID. 103(a)(2))).

As an initial matter, we agree with appellees that Ghidoni’s offer of proof lacked specificity regarding the content of Anderson’s opinion that would permit this Court to effectively determine whether Anderson possessed the requisite “special knowledge” to offer an expert opinion regarding such content. Broders, 924 S.W.2d at 152-53. After the court sustained appellees’ objection to Anderson’s testimony, Ghidoni’s counsel stated as follows in her offer of proof:

My expert witness would have testified to their having committed legal malpractice in this case. He would have testified that they were negligent in their representation of my client, that their conduct fell below the standard of care used by attorneys in the same or similar circumstances, that that constituted [*11] a breach of their duty owed, and that it was a — foreseeable, and that their conduct was the proximate cause of my client’s damages, and that his damages would have been the attorney’s fees that he had to pay in the other underlying litigation.

In sum, this offer recited the elements of a legal malpractice claim without specifying how or why Anderson believed that those elements were satisfied. The conclusory nature of the offer hinders our review of Ghidon’s complaint regarding the exclusion of Anderson’s testimony. Cf. Chapman v. Olbrich, 217 S.W.3d 482, 494-95 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding that offer of proof did not describe responses to requests for disclosure specifically enough to allow appellate court to determine whether trial court erred in refusing to admit such responses into evidence).” Ghidoni v. Skeins, No. 05-18-00355-CV, 2019 Tex. App. LEXIS 3818, at *10-11 (Tex. App.—Dallas May 10, 2019)

The complaint you raise on appeal must comport with the complaint you made in the trial court.

Attorney’s Fees: “Father first complains that Mother’s counterpetition only included a general request for attorney’s fees to be paid to her attorney; “there were no pleadings referencing [Family Code section 106.002] for the recovery of attorney’s fees.” See Tex. Fam. Code Ann. § 106.002 (court may render judgment for reasonable attorney’s fees and expenses in suit affecting parent-child relationship). Although Father contends that his “counsel raised several objections to [Mother]’s request for attorney’s fees,” the record does not reflect that Father objected to the award of attorney’s fees in the trial court based on Mother’s failure to plead any specific statutory basis for the award. Therefore, Father has not preserved this complaint. See Tex. R. App. P. 33.1(a)….In his reply brief, Father argues that whether he “raised objections to the deficiencies of [Mother]’s pleadings is immaterial because the trial court did not have a statutory basis to award attorney’s fees.” However, because Father did not raise the argument that the trial court lacked a statutory basis for its attorney’s-fee award in the trial court, he also has waived this argument. See Tex. R. App. P. 33.1(a); ” In the Interest of D.Z., No. 14-17-00938-CV, 2019 Tex. App. LEXIS 3991 (Tex App.–Houston [14th Dist.] May 16, 2019)

Attorney’s Fees: “Father also asserts (without explanation) that Mother “failed to segregate attorney’s fees between claims for which attorney[‘s] fees are recoverable and claims for which they are not.” However, the record does not reflect that Father ever raised any objection in the trial court based on lack of segregation of Mother’s attorney’s fees. Father likewise did not preserve this complaint. See Tex. R. App. P. 33.1(a);” In the Interest of D.Z., No. 14-17-00938-CV, 2019 Tex. App. LEXIS 3991 (Tex App.–Houston [14th Dist.] May 16, 2019)

Evidence: “On appeal, TxDOT argues that the trial court erred by excluding the disciplinary records on the basis that they contained hearsay because they were not offered for the truth of the matter asserted, but rather “to show the formal disciplinary actions [*32] that had been taken leading up to and culminating in Flores’s termination.” See Tex. R. Evid. 801(d). Yet, as Flores points out, TxDOT did not provide a basis at trial for overcoming Flores’s hearsay-within-hearsay trial objections, and does not do so on appeal; as such, we hold that the trial court did not abuse its discretion in excluding the documents on this basis. SeeTex. R. Evid. 801(d), 805. TxDOT further argues on appeal that the disciplinary records were admissible under the hearsay exception for public records pursuant to Tex. R. Evid. 803(8); however, this argument was never made at trial and does not comport with TxDOT’s complaint on appeal, and it is therefore waived. See Tex. R. App. P.33.1.” Tex DOT v. Flores, No. 08-17-00047-CV, 2019 Tex. App. Lexis 3918 (Tex. App.–El Paso May 15, 2019)

Jury Charge: “Gloria’s fifth issue is likewise waived. In this issue, Gloria [*7] asserts that the Question No. 6 of the jury charge included harmful error because it asked the jury to award damages to all three appellees. Gloria explains that it was improper to include Noelia and Mario in Question No. 6 because neither was alleged to be owed a fiduciary duty by Gloria. Gloria points out that the predicate question asked only if she breached a fiduciary duty to Z Ready Mix. To preserve an alleged jury-charge error, a party must take some action to apprise the trial court of the alleged error in a way that provides the trial court with the opportunity to correct it. Burbage v. Burbage, 447 S.W.3d 249, 257 (Tex. 2014) (“[T]he objection must apprise the trial court of the error alleged such that the court has the opportunity to correct the problem.”). “There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 226-27 (Tex. 2010) (quoting Payne, 838 S.W.2d at 241). At trial, Gloria objected that no evidence existed to support the submission of Question No. 6, but did not object that it was improper to include Noelia and Mario. Gloria objected only that “there is insufficient evidence . . . to prove . . . that [*8] Gloria Zermeño . . . actually caused any damages from a breach of fiduciary duty.” Gloria gave the trial court no plain indication that she objected to the inclusion of Noelia and Mario in the question. As such, Gloria waived this issue.” Zermeño v. Garcia, No. 14-17-00843-CV, 2019 Tex. App. LEXIS 3766, at *6-8 (Tex. App.—Houston [14th Dist.] May 9, 2019)

You have to get a ruling:

Discovery: “By her third issue, Nickerson argues that the trial court abused [*13] its discretion by denying her motions to compel discovery. However, there is no indication in the record that the trial court ruled on Nickerson’s motions or that Nickerson objected to the trial court’s refusal to rule on her motions. If a party is not satisfied with an opposing party’s discovery objections or responses to discovery inquiries, that party may move the trial court to compel discovery. See Tex. R. Civ. P. 215.1; see also Tex. R. Civ. P. 193.4 (providing that any party may request a hearing on an objection or claim of privilege to a discovery request). To preserve error on a discovery dispute, the appealing party must obtain a ruling by the trial court on the discovery issue. See Tex. R. App. P. 33.1(a)(2).” Nickerson v. Pineda, No. 13-17-00346-CV, 2019 Tex. App. LEXIS 3728, at *12-13 (Tex. App.—Corpus Christi May 9, 2019)

Summary Judgment: “Although Appellees objected to the plat as summary judgment evidence, the objection was not preserved because they did not obtain a ruling on it. See Capitol Wireless, LP v. XTO Energy, Inc., No. 02-12-00351-CV, 2014 Tex. App. LEXIS 8028, 2014 WL 3696084, at *5 (Tex. App.—Fort Worth July 24, 2014, no pet.) (mem. op.). Thus, we consider the unrecorded plat in our analysis.” Strait v. Savannah Court P’ship, No. 02-18-00036-CV, 2019 Tex. App. LEXIS 4022, at *21 n.9 (Tex. App.—Fort Worth May 16, 2019)

Summary Judgment: “Generally, if a trial court’s ruling granting one summary judgment motion necessarily denies another pending motion for summary judgment on the same issue, we will imply the ruling of denial, even if the trial court does not expressly rule on the latter motion. ….With respect to Star’s fraudulent transfer claim against NLW, appellees moved for summary judgment on their affirmative defense. The issue appellees presented, and upon which the trial court ruled, was whether Star’s claim was extinguished by the statute of repose. Star seeks summary judgment on the merits of its fraudulent transfer claims. The trial court did not reach the merits of this issue. Further, the trial court, at the summary-judgment hearing, expressly did not reach Star’s claim regarding the Fuqua Tract. To preserve error for appeal, a party must obtain a ruling from the trial court. SeeTex. R. App. P.33.1(a); Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (“Preservation of error generally depends on whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”) (internal quotations omitted). Because Star did not obtain a ruling from the trial court on its motion for summary judgment, this issue is waived.” Star Electric, Inc. v. Northpark Office Tower, LP, No. 01-17-00364-CV, 2019 Tex. App. Lexis 3857, 2019 WL 2094328 (Tex. App.–Houston [1st Dist.] May 14, 2019)

Your complaint must be timely:

Dismissal: “On July 27, 2016, Mother filed her motion to dismiss pursuant to § 263.402 of the family code. See id. § 263.402. But the final order naming the Department as permanent managing conservator of P.M. was entered over eight months prior to the filing of Mother’s motion to dismiss. Therefore, Mother waived her right to object to the trial court’s failure to dismiss the suit. See id. (“A party to a suit under this chapter who fails to make a timely motion to dismiss the suit under this subchapter waives the right to object to the court’s failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is made before the trial on the merits commences.”); see also In Interest of S.L.W., 529 S.W.3d 601, 607 (Tex. App.—Texarkana 2017, pet. denied) (holding Father waived his right to object to the court’s failure to dismiss where no motion [*8] to dismiss was filed prior to the entry of the final order on the merits).” In the Interest of P.M., No. 13-19-00058-CV, 2019 Tex. App. LEXIS 3729, at *7-8 (Tex. App.—Corpus Christi May 9, 2019)

One case held that a party did not waive its complaint about the lack of impartiality of an arbitrator by proceeding to arbitration even though knowing the arbitrator was a “friend” to the opposing party–but not knowing the extent of their interrelationship:

Arbitration: “Lange filed her motion to vacate in September 2017, arguing that Cole’s undisclosed friendship with Jenkins [who had entered an appearance as counsel for Cole after the arbitrator’s initial disclosures] exhibited evident partiality. Lange’s motion states that Jenkins’ July 12, 2017 email — in which she referred to Cole as a “friend” (about whom she thought a great deal) — was “the first disclosure that Lange or her counsel ever received of any friendship or other social relationship between Cole and Jenkins.” Piske asserts Lange waived her complaint as to Cole’s partiality by failing to raise the objection until approximately two months after Jenkins’ email. Guided by the Texas Supreme Court’s reasoning in Tenaska Energy, Inc., 437 S.W.3d at 528-29, and TUCO Inc., 960 S.W.2d at 637-38, we reject [*13] Piske’s argument….Like the appellants in Tenaska and TUCO Inc., Lange did not waive her evident-partiality claim by proceeding with the arbitration after Jenkins’ July 12, 2017 email. Jenkins’ email referred to Cole as a “friend” but did not disclose the later-discovered extent of their personal and business connections. Moreover, the email’s overall tone indicated Jenkins’ frustration with the delay in Cole’s issuance of his ruling. The email encouraged Cole to rule on the arbitration “as quickly as possible,” informing him that his delay in issuing the award “was beyond anything the parties should have to endure.” This email and Jenkins’ reference to Cole as a “friend” [*15] did not constitute a full disclosure of Cole’s and Jenkins’ relationship. We sustain Lange’s first issue and conclude Cole exhibited evident partiality by failing to disclose the extent of his personal and professional connections with Jenkins. Because we sustain Lange’s first issue, we do not reach her challenges addressing the trial court’s denial of her motion for new trial and motion for continuance.” In re Marriage of Piske, No. 14-17-00869-CV, 2019 Tex. App. LEXIS 3646, at *12-15 (Tex. App.—Houston [14th Dist.] May 7, 2019)

As usual, there were lots of cases holding that parties did not raised their complaints at all in the trial court.

All for now.  I hope this helps.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com