Error Preservation in Texas Civil Cases, 11/11/2019

November 11, 2019

Dear All:

Remember the Veterans on this Veterans Day.

For this issue of the blog, the following items make it into our Table of Contents:

Complaints don’t require magic words

Attorney (Appointed)

Affirmative Defense (Bona Fide Purchaser)

Make sure you avoid trying an issue by consent

Capacity

If you did not receive sufficient notice of a summary judgment hearing, you preserve your complaint by giving the trial court written notice of the complaint

Lack of subject matter can first be raised on appeal

From a bench trial, one can first complain on appeal about the sufficiency of the evidence to support trial court findings

You have to comply with the pertinent rules

Factual Sufficiency
Hearing Deadline

You have to get a ruling on your complaint

Evidence

Your complaint must be timely

Jury Argument

The Blurbs

Complaints don’t require magic words, as long as they are made know to the trial court:

Attorney (Appointed): “Initially, we address the Department’s argument that B.T. waived her right to counsel. . . .In the underlying case, on the first day of the trial on the merits, B.T. asked if she could “get an attorney. I need a court-appointed one, if you can.” Magic words were not required to bring the matter to the trial court’s attention to preserve error for appellate review. Sand Point Ranch, Ltd. v. Smith, 363 S.W.3d 268, 274 n.11 (Tex. App.—Corpus Christi 2012, no pet.). After a two-week recess, the trial court asked B.T. if she wanted an attorney “only if an extension [was] granted?” B.T. replied, “I need one regardless. I would like one.” The record shows that B.T. made her complaint known to the trial court and that the trial court ruled adversely to her. See Tex. R. App. P. 33.1(a)(1). B.T. provided the trial court with two opportunities to correct the decision to deny her appointed counsel thereby satisfying the rationale expressed in In re B.L.D.” In re J.F., No. 07-19-00174-CV, 2019 Tex. App. LEXIS 9755, at *14-15 (Tex. App.—Amarillo Nov. 6, 2019)

. . . . . .

Affirmative Defense (Bona Fide Purchaser): “Here, the Appellants’ counsel expressly stated at the beginning of trial: “If you fail to plead [bona fide purchaser as an affirmative defense], then you can’t argue it, so we’re not going to try it by consent in this case.” The Appellants’ counsel obtained a running objection on the matter and, additionally, objected three times to the relevance of opposing counsel’s line of questioning whenever the questioning broached an element of the bona fide purchaser affirmative defense. Each of the Appellants’ counsel’s objections were overruled by the trial court, and testimony on the affirmative defense allowed to continue. In their closing remarks, the Appellants’ counsel reiterated:

[T]here is really nothing to decide [in this case] other than the amount of the rents for the last two years . . . . Because at this point, it is too late to challenge title . . . . B[ona fide purchaser] is [an] affirmative defense to show that they have a superior interest, [*7] but it is an affirmative defense that wasn’t pled.

“An affirmative defense cannot be tried by consent when the opposing party makes an appropriate complaint.” 2000 GMC Sierra Truck v. State, No. 07-16-00356-CV, 2018 Tex. App. LEXIS 5575, 2018 WL 3543660, at *4 (Tex. App.—Amarillo July 23, 2018, no pet.) (mem. op.). Because the Appellants properly objected to the lack of a pleading supporting Gutierrez’s bona fide purchaser defense and to trial of the issue by consent, there was no trial by consent. See Tenet Health Sys. Hosp. Dallas, Inc. v. N. Tex. Hosp. Physicians Grp., P.A., 438 S.W.3d 190, 204 (Tex. App.—Dallas 2014, no pet.) (determining “there was no trial by consent” when the appellant objected to evidence of the appellee’s affirmative defense and to the lack of a pleading supporting the defense); Sorrell v. Elsey, 748 S.W.2d 584, 589 (Tex. App.—San Antonio 1988, writ denied) (“[Appellant] objected to the introduction of evidence supporting th[e] affirmative defense, and thus preserved error and prevented trial by consent.”).” Montoya v. Gutierrez, No. 04-19-00070-CV, 2019 Tex. App. LEXIS 9464, at *6-7 (Tex. App.—San Antonio Oct. 30, 2019)

Make sure you avoid trying an issue by consent:

Capacity: “To the extent Sterquell PSF contends appellants waived their right to challenge to Sterquell PSF’s status as a 635 LP partner, we disagree. Although appellants did not file a rule 93 verified “denial of partnership,” the record shows Sterquell PSF did not assert their “admission” argument below. See Highland Credit, 451 S.W.3d at 516. Rather, Sterquell PSF’s claimed status as a 635 LP partner was a primary focus of both sides’ arguments at trial. On this record, we conclude capacity was tried by consent. See id. at 517 (“[W]here capacity was clearly litigated, albeit mischaracterized as standing, we are reluctant to conclude that the issue has not been preserved for our review.”).” Malouf v. Sterquell PSF Settlement, L.C., No. 05-17-01343-CV, 2019 Tex. App. LEXIS 9789, at *14 (Tex. App.—Dallas Nov. 7, 2019)

If you did not receive sufficient notice of a summary judgment hearing, you preserve your complaint by giving the trial court written notice of the complaint:

Notice: “Third, [*8] Icon Bank argues that we must disregard the motion for continuance because the trial court never ruled on it, it was unsworn, and it lacked an affidavit. No ruling on the motion for continuance was required:  a party preserves a complaint that he received inadequate notice by filing an affidavit or a written objection. See Big H Constr., 2011 Tex. App. LEXIS 2441, 2011 WL 1233594, at *2 & n.1; Hatler, 2010 Tex. App. LEXIS 777, 2010 WL 375807, at *2. The motion for continuance was a written objection.” Clarent Energy Servs. v. Icon Bank of Tex., N.A., No. 01-18-00854-CV, 2019 Tex. App. LEXIS 9739, at *7-8 (Tex. App.—Houston [1st Dist.] Nov. 7, 2019)

Lack of subject matter can first be raised on appeal:

Jurisdiction: “Whether the trial court [*3] had subject matter jurisdiction is a question of law we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The parties cannot waive subject matter jurisdiction and may raise it for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Where jurisdiction is raised for the first time on appeal, we must construe the pleadings and the record in favor of the party asserting jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012). If the pleadings or the record conclusively negate jurisdiction, then the suit should be dismissed. Id. . . . .Justice courts and county courts on appeal de novo have jurisdiction to determine the right to immediate possession in a forcible detainer suit. . . . . Where the right to immediate possession necessarily requires resolution of a title dispute, however, neither the justice court nor the county court on appeal has jurisdiction. . . . Where, as here, a party raises an issue of adverse possession, determining the right to immediate possession necessarily requires resolving a title dispute. Gibson v. Dynegy Midstream Servs., L.P., 138 S.W.3d 518, 524 (Tex. App.-Fort Worth 2004, no pet.); Gentry v. Marburger, 596 S.W.2d 201, 203 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). Because Hernandez raised an issue of adverse possession in her pro se letter [*4] to the trial court, in her trial testimony, and in her post-trial plea to the jurisdiction, the record conclusively negates the justice court’s and the trial court’s subject matter jurisdiction. See Dormady, 61 S.W.3d at 557-58. Accordingly, construing the record in favor of Martinez, we conclude the trial court lacked subject matter jurisdiction and sustain Hernandez’s first issue.” Hernandez v. Martinez, No. 04-19-00076-CV, 2019 Tex. App. LEXIS 9460, at *2-4 (Tex. App.—San Antonio Oct. 30, 2019)

From a bench trial, one can first complain on appeal about the sufficiency of the evidence to support trial court findings:

Legal Sufficiency: “As a preliminary matter, Bedford Hospitality contends that CCPA waived all its appellate complaints because it did not challenge the trial court’s findings of fact in the trial court and raised “only . . . very limited challenges to specific” fact-findings and conclusions on appeal. But because this was a nonjury trial, CCPA can challenge the sufficiency of certain findings for the first time on appeal. See Tex. R. App. P. 33.1(d). That CCPA does not challenge each of the trial court’s findings does not mean that it waived its [*10] right to challenge the specific findings pertinent to its complaints. See id.” CCPA Enters. v. Bedford Hosp. Invs., LLC, No. 02-17-00382-CV, 2019 Tex. App. LEXIS 9575, at *9 (Tex. App.—Fort Worth Oct. 31, 2019)

You have to comply with the pertinent rules:

Factual Sufficiency: “A complaint that a jury finding is “against the great weight and preponderance of the evidence” is “a complaint about factual sufficiency.” Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 322 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Dunlap-Bell [*3] did not file a motion for new trial. She therefore failed to preserve for our review her complaint that the jury’s finding of no personal-injury damages is against the great weight and preponderance of the evidence. See id. (party waived complaint that jury’s award of no attorney’s fees was against great weight and preponderance of evidence by not filing motion for new trial); see also In re C.E.M., 64 S.W.3d 425, 428 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (sole way to preserve factual sufficiency complaint is to make it in new-trial motion).

Because Dunlap-Bell failed to preserve for appellate review her sole issue, we overrule it. See Tex. R. Civ. P. 324(b)(2)-(4); see also Tex. R. App. P. 33.1(a)(1)(B) (compliance with rules of civil procedure required to preserve complaint).” Dunlap-Bell v. Gyatsyavichus, No. 01-19-00170-CV, 2019 Tex. App. LEXIS 9515, at *2-3 (Tex. App.—Houston [1st Dist.] Oct. 31, 2019)

Hearing Deadline: “The record illustrates that the trial court scheduled the hearing to begin within the initial statutory deadline, extended the deadline by appropriate order, and convened trial before the extension date lapsed, and heard some testimony from the caseworker. Thereafter, the Department’s attorney proposed recessing until a later date, to which proposal M.L.’s attorney voiced no objection. The latter also indicated he had filed a motion for continuance. The final hearing resumed on February 20, 2019, and continued over two other settings. M.L. now argues that the Department’s presentation at the initial hearing did not constitute the commencement of “trial on the merits” as required by § 263.401(a). M.L. waived her complaint given that the proceeding was controlled by the pre-September 2017 amendment to § 263.401(a).

The amendment applied to termination suits filed on or after September 1, 2017. In re T.W., 557 S.W. 3d 841, 843 n.2 (Tex. App.—Amarillo 2018, no pet.). The suit at bar was filed before then. And, under the pre-amended version, the statutory deadline was non-jurisdictional [*8] and required the parent to move for dismissal. See In re A.F., S.W.3d , , 2019 Tex. App. LEXIS 8563, at *9 (Tex. App.—Fort Worth Sept. 24, 2019, no pet. h.). M.L. filed no motion to dismiss.” In the Interest of F.R., No. 07-19-00215-CV, 2019 Tex. App. LEXIS 9670, at *7-8 (Tex. App.—Amarillo Nov. 4, 2019)

You have to get a ruling on your complaint:

Evidence: “Contending our evidentiary review should not consider UTMB’s evidence filed after the hearing, Durisseau reasserts the issues raised in her motion to strike. But the record does not show Durisseau obtained a ruling on her motion.  As a prerequisite to presenting an evidentiary complaint for appellate review, the complaining party must object to the evidence and obtain a ruling. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (per curiam); Alaniz v. Rebello Food & Beverage, L.L.C., 165 S.W.3d 7, 19 n.19 (Tex. App.—Houston [14th Dist.] 2005, no pet.). To the extent Durisseau asserts UTMB’s evidence is outside the scope of our review, we conclude she failed to preserve these arguments because she did not obtain a ruling on her motion to strike or object to the trial court’s failure to rule on it. See Cal Dive Offshore Contractors Inc. v. Bryant, 478 S.W.3d 914, 921 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (appellant’s failure to obtain a ruling on motion to strike did not preserve his arguments for appellate review).” Univ. of Tex. Med. Branch at Galveston v. Durisseau, No. 14-18-00314-CV, 2019 Tex. App. LEXIS 9558, at *11 (Tex. App.—Houston [14th Dist.] Oct. 31, 2019)

Your complaint must be timely:

Jury Argument: “While Hopkins did not preserve her improper jury argument claims by making contemporaneous objections and obtaining rulings on the record at trial, her new trial motion included the improper jury argument claim she now asserts on appeal. We therefore must determine whether the complained-of argument was the type of “rare” argument that strikes “at the appearance of and the actual impartiality, [*6] equality, and fairness of justice rendered by courts,” causing incurable harm to the complaining party and judicial system. See Living Ctrs. of Tex., 256 S.W.3d at 681.

B. Was the complained-of argument incurable?

No. The argument was not incurable in context because the trial judge—who observed the entire trial—could have reasonably concluded on this record that (i) the comment was not so extreme and unsupported as to strike at the core of the judicial process and (ii) was not so inflammatory and prejudicial that its harmfulness could not have been eliminated by an instruction from the court.

Hopkins argues that Phillips’s counsel violated the Texas Disciplinary Rules and his argument was so prejudicial that it could not be cured by an instruction to disregard, prompt withdrawal of the statement, or a reprimand from the court. HN5 “Unsubstantiated attacks on the integrity or veracity of a party or counsel” has been cited as a type of jury argument that is deemed incurable. . . .

But on this record, we cannot conclude [*7] that the argument was without context or was so extreme that it struck “at the very core of the judicial process.” See Phillips v. Bramlett, 288 S.W.3d at 883. Specifically, the argument was made in response to Hopkins’s counsel’s pledge to the jury during voir dire to be “100-percent accurate and truthful” and his statement that he would own it if he wasn’t. And Hopkins’s counsel rebutted Phillips’s argument and thus had the opportunity to mitigate any harmful effects he thought the argument might have.

And while both counsel could have been more professional and respectful, we cannot conclude that the “probability that the argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.” Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979).” Hopkins v. Phillips, No. 05-18-01143-CV, 2019 Tex. App. LEXIS 9449, at *5-7 (Tex. App.—Dallas Oct. 29, 2019)

Then, as usual, a number of cases dealt with situations in which parties failed to make their complaint in the trial court, and thereby failed to preserve error.

All for now.  Y’all have a good week.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, 10/27/19

October 27, 2019

Dear All:

I hope all of you have your Halloween costumes. Me, I settle for the face I have–it’s about the scariest one I can imagine.

Speaking of scary, here is our Table of Contents for this week:

Table of Contents

Your complaint must be timely-and a premature objection to a visiting judge is not.

Your complaint at trial has to be specific, and has to be the complaint you raise on appeal.

Jury Charge

You have to comply with the pertinent rules

Capacity

You have to obtain a ruling on your complaint

Affidavit

The Blurbs

Your complaint must be timely-and a premature objection to a visiting judge is not:

Judge: “We also find that Smith’s objection was premature. See Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 887 (Tex. App.—El Paso 1993, no writ); see also In re Carnera, No. 05-16-00055-CV, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2 (Tex. App.—Dallas Jan. 27, 2016, no pet.) (mem. op.). “A party does not possess the right to object to the assignment of a visiting [*9] judge before the assignment takes place.” Discovery Operating, Inc., 855 S.W.2d at 887. “Section 74.053 clearly contemplates that assigned judge objections will be filed after the assignment of a judge to whom a party objects, not that parties can file pro forma blanket objections to assigned judges at the time they file their initial pleadings.” See Tex. Gov’t Code Ann. § 74.054; see also In re Carnera, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2. Here, Smith filed his original petition and objection on December 19, 2017, but the Presiding Judge of the Fourth Administrative Judicial Region did not appoint Judge Johnson until December 21, 2017. Accordingly, the objection in Smith’s original petition did not preserve this issue.

Smith later filed “Plaintiff[‘]s Objection to Assigned Judge and to Recuse” on January 9, 2018. However, because the deadline for filing an objection to an assigned judge is seven days after the notice of appointment or the case’s first hearing, whichever is sooner, Smith missed the deadline. See Tex. Gov’t Code Ann. § 74.053. To be timely, Smith must have filed his objection by December 28, 2017—seven days after the appointment of Judge Johnson.” Smith v. Rayford, No. 13-18-00395-CV, 2019 Tex. App. LEXIS 9313, at *8-9 (Tex. App.—Corpus Christi Oct. 24, 2019)

Your complaint at trial has to be specific, and has to be the complaint you raise on appeal.

Jury Charge: “In the instant case, Lindsey did not file a motion for an instructed verdict, file a judgment notwithstanding the verdict, raise an objection to the submission of a jury question, move to disregard the jury’s answer to a vital fact question, or file a motion for new trial. N. 3

n. 3 The record does reflect that Lindsey objected to the form of the jury charge, but there is nothing in the record demonstrating that the objection was reasonably specific as to the nature of the evidentiary-sufficiency challenges that have been brought on appeal. Rather, Lindsey complained that the charge should instruct the jury regarding modification before addressing termination. This objection is not enough to preserve Lindsey’s evidentiary-sufficiency complaints on appeal. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Civ. P. 268, 274, 301, 321-22; see also In the Interest of C.E.M., 64 S.W.3d 425, 428 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

Accordingly, we conclude that she failed to preserve her legal and factual-sufficiency complaints regarding the predicate grounds for termination of her parental rights under sections 161.001(b)(1) and 161.003 of the Family Code, as well as her complaint under section 161.004 of the Family Code. See In re B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003) (holding that the normal rules of preservation apply to parental rights termination cases and that due process does not mandate appellate review of unpreserved error in such cases); In re D.J.J., 178 S.W.3d at 426-27; In re A.C., 394 S.W.3d at 639; In re J.M.S., 43 S.W.3d at 62; In re C.E.M., 64 S.W.3d at 427; see also In re H.D.B.-M., 2013 Tex. App. LEXIS 2057, at **22-23.” In the Interest of R.W.K., No. 10-19-00200-CV, 2019 Tex. App. LEXIS 9299, at *3 (Tex. App.—Waco Oct. 23, 2019)

You have to comply with the pertinent rules:

Capacity: “The Cuellars also challenged the Trust’s capacity to bring the suit. Capacity refers to a plaintiff’s legal authority to act, and a challenge to capacity can be waived. See Lovato, 171 S.W.3d at 848-49 [*5] ; Matthews, 510 S.W.3d at 113-14. A challenge to the authority of a trust to sue or be sued in its own name—as opposed to the name of the trustee—is one relating to capacity. Ray Malooly Tr. v. Juhl, 186 S.W.3d 568, 571 (Tex. 2006) (per curiam) (citing Tex. R. Civ. P. 93(1)). A party waives its defense that the plaintiff lacks capacity to sue if it fails to timely file a verified pleading challenging the plaintiff’s capacity to sue. Id. As Juhl emphasized, “[p]arties who do not follow rule 93’s mandate waive any right to complain about the matter on appeal.” Id. (quoting Nootsie, 925 S.W.2d at 662); see Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 157 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370, 376 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). Rule 93(1) requires that a pleading alleging “[t]hat the plaintiff has not legal capacity to sue” is a pleading that “shall be verified by affidavit” unless the lack of capacity appears of record. Tex. R. Civ. P. 93(1); see Matthews, 510 S.W.3d at 113.

Here, the Trust contends the Cuellars waived their right to challenge its capacity to bring the underlying detainer action by failing to file a verified pleading. See Tex. R. Civ. P. 93(1); Cognata, 375 S.W.3d at 376. We agree. The record establishes that the Cuellars failed to verify the pleading alleging the Trust lacked capacity to file suit against them. Accordingly, the Cuellars waived their right to challenge the Trust’s capacity to bring suit. See Juhl, 186 S.W.3d at 571.” Cuellar v. CVI LCF Mortg. Loan Tr. I, No. 04-19-00130-CV, 2019 Tex. App. LEXIS 9287, at *4-5 (Tex. App.—San Antonio Oct. 23, 2019)

You have to obtain a ruling on your complaint:

Affidavit: “The Davises objected to Dr. Almaguer’s affidavit in the trial court because Dr. Almaguer “is not qualified to opine on causation, his methodology is not reliable, and his opinions are conclusory and unsupported.” The Davises make the same arguments on appeal; however, the record does not contain a ruling on their objection. A “trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being understood’ from the ruling on the motion for summary judgment.” Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 165-66 (Tex. 2018) (quoting Well Sols. Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.—San Antonio 2000, no pet.)). Here, the Davises never obtained a ruling on their objection to Dr. Almaguer’s affidavit, and they never objected to the trial court’s failure to rule. See Tex. R. App. P. 33.1(a)(2); Seim, 551 S.W.3d at 165-66.” Alvarez v. Salazar-Davis, No. 13-18-00366-CV, 2019 Tex. App. LEXIS 9309, at *17 n.7 (Tex. App.—Corpus Christi Oct. 24, 2019)

Then there were a host of complaints which the parties did not raise in the trial court.

That’s all for now.  Have a great Halloween.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, 10/19/19

Dear All:

The error preservation decisions have started picking up the last couple of weeks, though most of the same deal with the failure to raise the complaint in the trial court. Some of the other decisions dealt with issues set out in the following table of contents.

Table of Contents

Your complaint on appeal must comport with the complaint you made at trial

Jury Charge
Jury Charge

You have to make a record of your complaint

Attorney’s Fees
Evidence
Evidence

The Blurbs

Your complaint on appeal must comport with the complaint you made at trial:

Jury Charge: “Saenz-Guerrero argues the trial court should have used “occurrence” instead of “injuries” in Question No. 1 because “there were no allegations of proportionate responsibility, contributory negligence, comparative fault, or pre-or post-occurrence, injury producing conduct.” Saenz-Guerrero raised this objection at the charge conference and preserved the issue for appellate review. See Tex. R. Civ. P. 274;” Saenz-Guerrero v. Gardner, No. 14-18-00440-CV, 2019 Tex. App. LEXIS 9085, at *7 (Tex. App.—Houston [14th Dist.] Oct. 15, 2019)

Jury Charge: “Saenz-Guerrero’s objection challenged Question No. 1’s use of the term “injuries” only on grounds of comparative, pre-, and post-occurrence negligence, not on the grounds that the term “injuries” was either patently or latently ambiguous. This objection did not challenge Question No. 1’s use of “injuries” on the basis Saenz-Guerrero argues for the first time that the plural form of “injuries” set up an improper predicate [*6] finding that necessitated proving that all of Saenz-Guerrero’s injuries were proximately caused by Gardner’s negligence. Because Saenz-Guerrero did not clearly designate this alleged error, he did not preserve the issue for appellate review. See, e.g., Burbage, 447 S.W.3d at 257-58; Bayer Corp., 214 S.W.3d at 603; and Carousel’s Creamery, L.L.C., 134 S.W.3d at 404-05.

Moreover, during deliberations, the jury sent out a note asking the trial court: “Can you clarify the term ‘injuries’ in question? What specific injuries, if any, does this refer to?” Commenting on the jury’s question, Gardner’s counsel stated that “the charge instructs [the jury] sufficiently; and all the evidence is before them to answer that question based on what they have.” Saenz-Guerrero’s counsel responded: “I would agree with [Gardner’s counsel], your honor.” Both parties’ attorneys agreed with the trial court’s response to the jury’s note, which stated: “In answer to your question, I instruct you to be guided by the instructions in the charge.”

Although the jury specifically questioned the use of “injuries,” Saenz-Guerrero’s counsel did not raise the objection he now asserts on appeal. Accordingly, this issue was not preserved for appellate review. See Bayer Corp., 214 S.W.3d at 603; cf. Wilson v. E. Tex. Med. Ctr., No. 12-13-00311-CV, 2014 Tex. App. LEXIS 9560, 2014 WL 4215877, at *3-4 (Tex. App.—Tyler Aug. 27, 2014, no pet.) (mem. op.) (appellant [*7] failed to preserve complaint challenging trial court’s response to jury note where appellant “acquiesced to the trial court’s response”).” Saenz-Guerrero v. Gardner, No. 14-18-00440-CV, 2019 Tex. App. LEXIS 9085, at *5-7 (Tex. App.—Houston [14th Dist.] Oct. 15, 2019)

You have to make a record of your complaint:

Attorney’s Fees: “The same result is appropriate here. Although the relevant version of the TCPA provided for a mandatory award of attorney’s fees, court costs, and sanctions, nothing in its language modified the general rule that a fee award must be supported by evidence. Tex. Civ. Prac. & Rem. Code § 27.009(a). As a result, the Carters and the Parkers bore the burden to present evidence establishing the amount of a reasonable award. See De Leon, 70 S.W.3d at 201-02. Nothing in the record shows that they presented any evidence of their attorney’s fees or court costs—or the appropriate amount of sanctions—either before, during, or after the February 5, 2019 [*13] hearing. See id.; Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2). Additionally, they did not bring any complaint to the trial court’s attention when its order recited that they had withdrawn their request for attorney’s fees.

The Carters and the Parkers do not dispute that they did not present any evidence to support the awards they seek. Instead, they argue that the trial court denied them an opportunity to present their evidence, noting that “[t]he Trial Court’s order stated incorrectly that [they] had withdrawn their request for attorneys’ fees at the hearing when in fact they had not been granted authorization to present any evidence on attorneys’ fees.” We construe this as an argument that the trial court abused its discretion by refusing to hear their evidence. Tex. R. App. P. 38.1(f). But in order to preserve that complaint for appellate review, the Carters and the Parkers must show that they informed the trial court of the substance of their evidence, either through an offer of proof made during the hearing or a bill of exception filed after the hearing. Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2); . . . .They have not made this showing. We therefore hold that the Carters and the Parkers have not preserved their claim to attorney’s fees, [*14] court costs, and sanctions for our review.” Carter v. Ball, No. 04-19-00194-CV, 2019 Tex. App. LEXIS 8938, at *12-14 (Tex. App.—San Antonio Oct. 9, 2019)

Evidence: “In its fourth issue, Hutch argues the trial court erred when it excluded the second page of “Exhibit P2.” Exhibit P2 is the letter Hutch sent the FAA to record its lien. The second page was introduced as the receipt by the FAA of that letter. However, Teal and Templeton objected to its admission as improperly authenticated. The trial court sustained the objection. After further attempts to authenticate the second page, Hutch’s attorney stated, “Why don’t you let me extract page two and leave P2?” As a result, the second page of the introduced exhibit is not in the appellate record. An appellate court cannot consider documents cited in a brief and attached in an appendix if they are not formally included in the appellate record. Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.). As a result, Hutch failed to preserve error as to the exclusion of the exhibit. See In Interest of M.G.N., 491 S.W.3d 386, 400 (Tex. App.—San Antonio 2016, pet. denied) (appellate court could [*18] not determine substance of exhibits from offer of proof and exhibits were not in trial court record, party failed to preserve error as to exclusion of exhibits).” Hutch Aviation, Inc. v. Teal, No. 12-19-00001-CV, 2019 Tex. App. LEXIS 9172, at *17-18 (Tex. App.—Tyler Oct. 17, 2019)

Evidence: “Further, we have no record of any offer of proof by Dillard at the hearing, and the record does not contain a bill of exceptions. See Tex. R. Evid. 103; Tex. R. App. P. 33.2.   “[W]hen evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence in the record in order to complain of the exclusion on appeal,” and failure to do so results in waiver of the complaint. Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.). Thus, Dillard waived her second issue by both inadequately briefing it and by failing to preserve in the record the substance of the evidence that the county court purportedly excluded.” Dillard v. N. Hills Manor, No. 02-18-00309-CV, 2019 Tex. App. LEXIS 9039, at *5 (Tex. App.—Fort Worth Oct. 10, 2019)

That’s all for now.  Y’all have a good rest of the weekend and a good upcoming week.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, 10/7/19

October 7, 2019

Dear All:

Once again, there were not a lot of error preservation decisions last week–not unusual for this time of year.

Table of Contents

One case presented a reminder that a court of appeals will not consider, as a ground for reversing a summary judgment, an issue not expressly presented to the trial court by written motion, answer, or other response.

One case held that a party could first raise a complaint on mandamus to the court of appeals if the case involved “highly unusual circumstances” indicating that raising the complaint in the trial court would be “futile.”

Guardian ad Litem

The Blurbs

One case presented a reminder that a court of appeals will not consider, as a ground for reversing a summary judgment, an issue not expressly presented to the trial court by written motion, answer, or other response:

Summary Judgment: “In the context of summary judgments, “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (quoting Tex. R. Civ. P. 166a(c)). Thus, in order to preserve error for appeal, “[c]omplaints and argument on appeal must correspond with the complaint made at the trial court level.”. . . . Barrett argues on appeal that the written contracts between Valero and Elite and Berry did not obligate Valero to continue to provide coverage if the rolling owner controlled insurance program (ROCIP) was discontinued after the work began. Thus, Barrett claims that Valero did not “provide” workers’ compensation insurance coverage to Elite and Berry, which means Berry and Elite were not entitled to the exclusive remedy defense. See Tex. Lab. Code Ann. § 406.123(a). However, this does not correspond with the arguments raised by Barrett in response to Elite’s and Berry’s motions for summary judgment at the trial court level. [*7]

In response to Berry’s motion for summary judgment, Barrett argued that, based on the terms of the written contract, Berry was an independent contractor as opposed to a deemed employee, meaning Berry was not entitled to the protection of the exclusive remedy defense. Because Barrett’s argument that Valero did not “provide” Berry coverage has been made for the first time on appeal, this issue is waived. See Tex. R. Civ. P. 166a(c)); Wells Fargo Bank, 458 S.W.3d at 916.

Likewise, in response to Elite’s motion for summary judgment, Barrett raised four arguments: (1) Elite did not establish that the written contract to provide coverage was in force and effect at the time the incident occurred; (2) Elite did not establish that the written contract covered the specific time and location of the injury; (3) there was a genuine issue of material fact as to whether Valero qualified as a general contractor; and (4) the written contract described Elite as an independent contractor, which precluded Elite from claiming deemed employee status. Barrett addresses none of these issues on appeal and instead argues that Valero did not “provide” coverage to Elite because “the contracts provide that in the event that Valero does not elect to furnish workers’ compensation [*8] insurance, that Berry and Elite agree to furnish the insurance at their expense, as opposed to Valero’s.” Because Barrett’s appellate issue was not properly raised in the summary judgment proceedings at the trial court level, this issue is waived. See Tex. R. Civ. P. 166a(c); Wells Fargo Bank, 458 S.W.3d at 916.” Barrett v. Berry Contracting, L.P., No. 13-18-00498-CV, 2019 Tex. App. LEXIS 8811, at *6-8 (Tex. App.—Corpus Christi Oct. 3, 2019)

One case held that a party could first raise a complaint on mandamus to the court of appeals if the case involved “highly unusual circumstances” indicating that raising the complaint in the trial court would be “futile”:

Guardian ad Litem: “The Guardian ad Litem, in urging this Court to deny FBISD’s request for mandamus relief, argues that FBISD failed to preserve its complaints for mandamus review because it did not challenge the trial court’s actions in appointing the Guardian ad Litem in the trial court before it filed its first supplemental petition for writ of mandamus. The Guardian ad Litem cites a 2003 memorandum opinion from this Court, In re Bank of America, N.A., No. 01-02-00867-CV, 2003 Tex. App. LEXIS 8722, 2003 WL 22310800, at *2 (Tex. App.—Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) (mem. op.), for the proposition that a writ of mandamus is akin to an equitable remedy and “[e]quity is generally not served by issuing an extraordinary writ against a trial court on a ground that was never presented to the court and that the court thus had no opportunity to address.” In that opinion, this Court also noted that the standard of review to issue a writ of mandamus is abuse of discretion and that “[i]t would be hard to conclude, without circumstances that were highly unusual or that made a trial court’s ruling void, that a trial court could abuse its discretion in making a ruling for a reason that was never presented to the court.” Id. We conclude that this case presents such “highly unusual” circumstances. By appointing the Guardian ad Litem (and reappointing the Master in Chancery) after FBISD filed its nonsuit, the trial court acted contrary to well-established law and clearly abused its discretion. Moreover, in the order reappointing the Master in Chancery, the trial court characterized FBISD’s nonsuit as an “attempted” nonsuit, indicating that it did not believe it was governed by the law holding that a nonsuit renders the case moot. Under these circumstances, requiring FBISD to specifically object to the trial court’s appointment of the Guardian ad Litem and the Master in Chancery in proceedings it had nonsuited before filing its supplemental mandamus petitions would be futile.” In re Fort Bend Indep. Sch. Dist., No. 01-18-01113-CV, 2019 Tex. App. LEXIS 8852, at *27 n.2 (Tex. App.—Houston [1st Dist.] Oct. 3, 2019)

All for now.  Y’all have a good week.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, 9/30/19

September 30, 2019

Dear All:

There were not a lot of error preservation decisions last week–not unusual for this time of year.

Table of Contents

• A complaint about the lack of subject matter jurisdiction-such as a complaint that the trial court did not try a SAPCR before the dismissal deadline, nor properly extend that deadline-may be raised for the first time on appeal, and a party cannot consent to the lack of subject matter jurisdiction nor waive a complaint about it
• You can also raise a no evidence complaint as to an expert’s testimony in a bench trial for the first time on appeal–an especially important point on a fight about attorney’s fees
• One opinion held that a TCPA motion to dismiss was sufficiently specific to put the TCPA into play

The Blurbs

A complaint about the lack of subject matter jurisdiction-such as a complaint that the trial court did not try a SAPCR before the dismissal deadline, nor properly extend that deadline-may be raised for the first time on appeal, and a party cannot consent to the lack of subject matter jurisdiction nor waive a complaint about it:

• Jurisdiction: “The thrust of the Department’s argument is that any complaint concerning the deadline is waived or estopped. But with the repeal of section 263.402(b), dismissal is jurisdictional, and jurisdiction may not be conferred by waiver or estoppel. Tex. Fam. Code Ann. §§ 263.401(a), (b), .402; see In re Crawford & Co., 458 S.W.3d 920, 928 n.7 (Tex. 2015) (orig. proceeding) (per curiam) (estoppel); Tellez v. City of Socorro, 226 S.W.3d 413, 414 (Tex. 2007) (per curiam) (waiver); Comptroller v. Landsfeld, 352 S.W.3d 171, 174 (Tex. App.—Fort Worth 2011, pet. denied) (both). Subject-matter [*29] jurisdiction is a power that exists by operation of law only, and it cannot be conferred upon any court by consent or waiver. Crawford, 458 S.W.3d at 928 n.7. And even if invited error or estoppel would otherwise bar Mother and Father’s complaints, we are required to review sua sponte issues affecting jurisdiction. In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per curiam); see Gore v. Gore, No. 05-13-01025-CV, 2014 Tex. App. LEXIS 2971, 2014 WL 1018650, at *1 (Tex. App.—Dallas Mar. 17, 2014, no pet.) (mem. op.) (reviewing jurisdiction sua sponte even where appellant’s complaint concerning jurisdiction would otherwise be precluded by estoppel); Castle & Cooke Mortg., LLC v. Diamond T Ranch Dev., Inc., 330 S.W.3d 684, 687 (Tex. App.—San Antonio 2010, no pet.) (rejecting argument that estoppel barred appellate court from considering jurisdiction). Accordingly, we need not decide whether Mother’s and Father’s actions constitute invited error or a basis for estoppel because, even if they did, “such doctrines cannot create subject-matter jurisdiction where it does not otherwise exist.” See Crawford, 458 S.W.3d at 928 n.7.” In re A.F., No. 02-19-00117-CV, 2019 Tex. App. LEXIS 8563, at *28-29 (Tex. App.—Fort Worth Sep. 24, 2019)

You can also raise a no evidence complaint as to an expert’s testimony in a bench trial for the first time on appeal–an especially important point on a fight about attorney’s fees:

• Expert Witness (Attorneys’ Fees): “Although not included in his list of issues presented, Wilson also argues that the trial court erred in admitting the testimony of Daniel Kirschbaum, Henderson’s expert witness, that Henderson’s fees were reasonable. When Henderson called Kirschbaum to testify at trial, Wilson objected that Kirschbaum’s testimony did “not meet any of the Daubert/Robinson factors,” “fails the Gammill test,” and improperly relied on Henderson’s testimony. He also objected that Kirschbaum’s affidavit lacked specificity, although as the trial court noted, he had agreed to its admission into evidence. The court explained to Wilson, “if you have an objection that [a] certain opinion offered by him lacks foundation as those opinions are being elicited, the Court will receive your objection and rule upon it.” Wilson, however, did not make any such objection to Kirschbaum’s direct testimony. Consequently, we construe Wilson’s argument on appeal [*17] as a no-evidence complaint. See Reisler v. Reisler, 439 S.W.3d 615, 623 (Tex. App.—Dallas 2014, no pet.) (party who did not object to expert’s testimony at trial may argue on appeal that expert’s testimony constitutes no evidence and is mere conclusion); see also TEX. R. APP. P. 33.1(d) (in civil nonjury case, complaint regarding legal or factual sufficiency of evidence may be made for first time on appeal).” Wilson v. Henderson, No. 05-18-00714-CV, 2019 Tex. App. LEXIS 8606, at *16-17 (Tex. App.—Dallas Sep. 24, 2019)

One opinion held that a TCPA motion to dismiss was sufficiently specific to put the TCPA into play. I’ve copied all of that discussion here so you could have the benefit of it:

• Texas Citizen’s Participation Act:

3. Soleil’s argument that Rogers and RRK did not preserve error fails.

Soleil’s appellate brief makes no substantive argument challenging the application of the TCPA. Instead, it challenges the form of Rogers’s and RRK’s motions to dismiss, claiming that the motions presented only one sentence of argument that the TCPA applied to Soleil’s suit and that Rogers and RRK did not fully develop that argument until filing a reply to Soleil’s response. We are unpersuaded.

Initially, Soleil does not tell us why the motions were deficient. Both motions contain similar grounds. Though not elaborate, the allegations make the basic point of which TCPA right Rogers and RRK are invoking and why they contend that right protects them:

The pleadings on file and the supporting affidavit(s) show by a preponderance of the evidence that Plaintiff’s causes of action [for] slander, libel, defamation of character, intentional infliction of emotional distress, interfering with economic benefit[,] and fraud[] are based [on] Defendant’s exercise of his First Amendment . . . right of free speech as defined in Texas Civil Practice and Remedies Code § 27.001 and demonstrate that Plaintiff has failed to establish by clear and specific [*16] evidence a prima facie case for each essential element of Plaintiff’s claim(s). Richard Rogers has exercised his First [A]mendment rights to speak out against a good, product, or service in the marketplace[,] which is a matter of public concern under Tex. Civ. Prac. & Rem. Code [Ann.] § 27.001(7)(E)[.] [Emphasis added.]

Though not artful in their description of Soleil’s claims, Rogers and RRK’s grounds communicate the basic premise of a motion to dismiss: the TCPA applies because Rogers and RRK were exercising a TCPA-defined right of free speech.

Nor does Soleil cite any case suggesting that the motions’ grounds are deficient. In fact, Soleil cites only two federal cases for the irrelevant proposition that arguments raised for the first time in a reply are untimely:  Gillaspy v. Dallas Ind. Sch. Dist., 278 [F. App’x] 307, 315 (5[th] Cir. 2008) (“It is the practice of this court and the district courts to refuse to consider arguments raised for the first time in reply briefs[.”]); Springs Indus. Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 238, 240 (N.D. Tex. 1991).

Soleil’s failure to cite cases that support its position is understandable as the caselaw is contrary to its argument. First, the supreme court has warned the courts of appeals not to be “too strict” in their application of [*17] error-preservation principles in TCPA cases. See Adams, 547 S.W.3d at 896-97. In Adams, a party’s mentioning the nature of the public concern at a TCPA-motion-to-dismiss hearing preserved error. Id. The supreme court buttressed this holding with the concept that we have already mentioned: “the unique language of the TCPA directs courts to decide its applicability based on a holistic review of the pleadings.” Id. at 897. Adams instructs that while conducting a de novo review, it is our role to decide, as a matter of law, whether the petition is based on or related to a matter of public concern and not to become mired in a microscopic analysis of error preservation:

We have not previously cabined our TCPA analysis to the precise legal arguments or record references a moving party made to the trial court regarding the TCPA’s applicability. Our focus instead has been on the pleadings and on whether, as a matter of law, they are based on or relate to a matter of public concern.

Id.; see also Morrison, 578 S.W.3d at 681 (holding that motion to dismiss—which stated conclusory allegation that suit involved a matter of public concern because its statements concerned goods, products, or services in the marketplace—preserved error because “to determine the [*18] basis of a legal action for purposes of the first step in the dismissal procedure, it is necessary to consider the plaintiff’s petition, which is ‘the “best and all-sufficient evidence of the nature of the action”‘” (quoting Hersh, 526 S.W.3d at 467)). The grounds recited in Rogers’s and RRK’s motions to dismiss are not elaborate, but they certainly raise an issue that is our responsibility to determine as a matter of law: does the TCPA apply to the allegations in Soleil’s petition?”

Richard Rogers & Rrk Real Estate Invs. & Holdings v. Soleil Chtd. Bank, No. 02-19-00124-CV, 2019 Tex. App. LEXIS 8679, at *15-18 (Tex. App.—Fort Worth Sep. 26, 2019)

There were a few cases in which the parties failed to raise the complaint in the trial court.

Y’all take good care.

Yours,

Steve Hayes

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

Error Preservation in Texas Civil Cases, 9/14/19

September 14, 2019

Dear Folks:

The volume of decisions has followed its annual abatement trend since the end of the fiscal year on August 31. Both the justices and the staff attorneys had their respective annual meetings the first full week of September, and the Advanced Civil Appellate Seminar took place that same week. But the justices and staff attorneys have gotten back into the saddle, and we should expect the pace of decisions to pick up.

Table of Contents for This Blogpost

Exercise extreme caution when drafting or signing an agreed judgment, in terms of differentiating whether all parties agree only as to form, or also as to substance

You must present your complaint in a timely fashion

Notice

The Blurbs

Exercise extreme caution when drafting or signing an agreed judgment, in terms of differentiating whether all parties agree only as to form, or also as to substance:

Judgment: “A judgment entered upon the agreement of the parties cures all non-jurisdictional defects. One 2000 Int’l Truck Tractor v. State, No. 01-11-00072-CV, 2012 Tex. App. LEXIS 9247, 2012 WL 5458421, at *1 (Tex. App.—Houston [1st Dist.] Nov. 8, 2012, no pet.) (mem. op.) (citing Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). A party may revoke its consent to a settlement agreement at any time before an agreed judgment is rendered on the agreement. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); see also In the Matter of Marriage of Long, 946 S.W.2d 97, 99 (Tex. App.—Texarkana 1997, no pet.). But a party may not challenge such a judgment or defects in the proceedings in the case absent an allegation of fraud, collusion, or misrepresentation. See Authorlee v. Tuboscope Vetco Int’l, Inc., 274 S.W.3d 111, 119 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also Mailhot, 124 S.W.3d at 777 (holding party who asks trial court to accept settlement agreement and enter judgment accordingly may not later attack that judgment). To preserve error for appeal, a party who signs a judgment must specify that his agreement with the judgment is as to form, but not as to substance and outcome. See First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); see also Mailhot, 124 S.W.3d at 777. Here, as noted above, on behalf of appellant, Matherne signed the Agreed Final Judgment under the words, “AGREED AND ENTRY REQUESTED” and there was no language limiting his consent as to form, but not as to substance. Thus, appellant did not preserve error to complain about the Agreed Final Judgment, and she has waived the right to complain about it after asking the trial court to accept the agreement. See Fojtik, 775 S.W.2d at 633; see also Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.—Houston [1st Dist.] 1995, writ denied).” Reule v. Sherwood Valley I Council of Co-Owners, Inc., No. 01-17-00593-CV, 2019 Tex. App. LEXIS 8130, at *4 (Tex. App.—Houston [1st Dist.] Sep. 5, 2019)

Judgment: “The judgment is titled “Agreed Final Judgment,” and Reedom signed the judgment as “Agreed to,” not just “agreed as to form.” This language is not necessarily sufficient to establish that the judgment is agreed, however, and appellate courts are not unanimous on the issue of whether a judgment can be challenged on appeal when it appears to be agreed but, like the Agreed Final Judgment, “has no recitation of the agreement in the body of the order itself.” Estate of Nielsen, 2018 Tex. App. LEXIS 7915, 2018 WL 4625531, at *4. However, here the Agreed Final Judgment further recited that “[t]he parties announced an agreement” and that the court was rendering judgment after hearing that agreement. Thus, the judgment reflects that an agreement existed and also that the county court had evidence of both its existence and its substance. Contra Bexar Cty. Crim. Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ) (stating that the word “Approved,” in the judgment signed by the appellant, with nothing more, did not indicate a consent judgment when “[n]othing in the body of the judgment suggests that the case had been settled or that judgment was rendered by consent” and that “[t]here are no other indications of agreement in the record”).

Nothing in the record indicates that Reedom signed [*4] the Agreed Final Judgment under protest or in any way indicated to the county court that it did not reflect the parties’ agreement. Contra Baw, 949 S.W.2d at 767 (holding that despite signing the divorce decree as “approved and consented to as to both form and substance,” the appellant, “by his objections to the trial court’s characterization of the [profit-sharing-retirement-trust] plan, did not explicitly and unmistakably give his consent to that portion of the divorce decree and did not waive his right of appeal”). He does not argue that the judgment erroneously states the existence of an agreement when none existed or that he did not agree to the terms of the judgment. In fact, he makes no argument at all about whether the Agreed Final Judgment was an agreed judgment. Nor does he argue that the county court did not have jurisdiction to render the Agreed Final Judgment. See Pillitteri, 165 S.W.3d at 718. Instead, he appears to complain about the dismissal of a federal lawsuit he filed against Woodstock and whether the dismissal was proper under federal rules of civil procedure. Accordingly, he has waived his issues on appeal.” Reedom v. 5950 Boca Raton LP, No. 02-18-00269-CV, 2019 Tex. App. LEXIS 7664, at *3-4 (Tex. App.—Fort Worth Aug. 26, 2019)

You must present your complaint in a timely fashion:

Notice: “Etienne argues in the alternative that the trial court abused its discretion in granting State Farm’s motion because the insurance policy required State Farm to give her ten days’ written notice before moving for appointment of an umpire, and she contends that State Farm failed to do so. But, Etienne neither responded to State Farm’s motion for appointment of an umpire nor appeared at the hearing on the motion. Having failed [*7] to timely raise this complaint, it is waived. See Tex. R. App. P. 33.1(a)(1). Moreover, and as State Farm points out, the trial court’s local rules provide that “[f]ailure to file a response may be considered a representation of no opposition.” Harris Cty. (Tex.) Co. Ct. At Law Loc. R. 3.3.3. Given Etienne’s failure to respond to State Farm’s motion or to appear at the hearing, the trial court did not abuse its discretion in granting the motion.” Etienne v. State Farm Lloyds, No. 14-18-00665-CV, 2019 Tex. App. LEXIS 8195, at *6-7 (Tex. App.—Houston [14th Dist.] Sep. 10, 2019)

A few cases dealt with situations in which the parties failed to raise their complaint in the trial court.

I hope this helps.  Have a great rest of the weekend.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, 9/2/19

September 2, 2019

Dear All:

Well, here we are at Labor Day–we may have the most brutal days of summer behind us, we can look forward to autumn, and the courts of appeals closed out the last week of their fiscal years (on August 31).  As usual, they issued a lot of opinions, and a lot of opinions which involved error preservation. Overwhelmingly, the error preservation decisions involved complaints which parties failed to raise at all in the trial court. Because of the volume of error preservation decisions, and the fact that most don’t add much to the jurisprudence, I’ve included only a few such decisions below–ones which I thought might help you, or give you a template to follow.

Table of Contents

One court explained why an appellant had expressly presented an issue in response to a no-evidence motion for summary judgment

A complaint about the failure to continue a summary judgment cannot be preserved by oral motion–it requires a written motion supported by an affidavit

Understand the dangers of signing a judgment as “agreed to,” instead of “agreed to as to form, only:”

You must make your complaint in a timely manner–and comply with the pertinent rules

Findings and Conclusions
Limitations

The Blurbs

One court explained why an appellant had expressly presented an issue in response to a no-evidence motion for summary judgment:

Summary Judgment: “The City claimed in a letter notifying WIL of a violation of the reinstatement agreement for advertising for rental a “lakefront cabin with water trampoline” and “luxury lakefront mansion.” As we have discussed, the “luxury lakefront mansion” advertisement is in the record and constitutes a violation of the agreement as to lot 43. However, the alleged “lakefront cabin with water trampoline” advertisement is not in the record. Consequently, WIL claims that the City breached the agreement and improperly evicted it on lot 46. The City argues that WIL waived consideration of this issue because this argument was raised for [*16] the first time on appeal. We disagree. Issues a nonmovant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also Tex. R. Civ. P. 166a(c). In a no-evidence motion for summary judgment, after the movant specifies the elements for which there is no evidence, the burden then shifts to the nonmovant to produce evidence raising a genuine issue of material fact on the elements specified in the motion. Tex. R. Civ. P. 166a(i); Mack Trucks, 206 S.W.3d at 582. The nonmovant is “not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Tex. R. Civ. P. 166a(i), cmt. WIL satisfied this burden. WIL’s response to the City’s motion included the issue that it complied with the reinstatement agreement, that it performed its obligations under the agreement, and that termination of the leases and eviction was improper. It specifically identified and attached evidence to its response to the motion, including James Wasson’s deposition testimony. In it, he stated that he never rented either the large house or the cabin after the parties executed the reinstatement agreement. Furthermore, at times during Wasson’s testimony, counsel referred to advertisements generally, but he was presented only with the advertisement for the large home and specifically questioned about that advertisement. As we have stated, there is no advertisement in the record for the cabin on lot 46. Accordingly, this ground was before the trial court, WIL presented more than a scintilla of evidence that it complied with the reinstatement agreement as to the cabin, and the City failed to conclusively negate it. WIL raised a fact issue as to whether the City’s termination of the lease for lot 46 and eviction was improper.” Wasson Interests v. City of Jacksonville, No. 12-13-00262-CV, 2019 Tex. App. LEXIS 8022, at *15-17 (Tex. App.—Tyler Aug. 30, 2019)

A complaint about the failure to continue a summary judgment cannot be preserved by oral motion–it requires a written motion supported by an affidavit:

Continuance (Summary Judgment): “At the end of the hearing on Appellees’ motion for summary judgment Royale informed the trial court, “I would make a motion . . . [under] Texas Rule of Civil Procedure 215(1)(b)3(d) [sic] to compel discovery.” . . . . When a party contends that he has not had an adequate time for discovery before a summary judgment hearing, he must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tex. R. Civ. P. 166a(g), 251, 252; . . . . Royale did not file a verified motion for continuance or an affidavit explaining the need for further discovery. Accordingly, he has waived any argument that the trial court allowed an inadequate time for discovery or that Appellees’ motion for summary judgment was premature.” Royale v. Knightvest Mgmt., No. 05-18-00908-CV, 2019 Tex. App. LEXIS 8042, at *31-32 (Tex. App.—Dallas Aug. 30, 2019)

Understand the dangers of signing a judgment as “agreed to,” instead of “agreed to as to form, only:”

Judgment: “The judgment is titled “Agreed Final Judgment,” and Reedom signed the judgment as “Agreed to,” not just “agreed as to form.” This language is not necessarily sufficient to establish that the judgment is agreed, however, and appellate courts are not unanimous on the issue of whether a judgment can be challenged on appeal when it appears to be agreed but, like the Agreed Final Judgment, “has no recitation of the agreement in the body of the order itself.” Estate of Nielsen, 2018 Tex. App. LEXIS 7915, 2018 WL 4625531, at *4. However, here the Agreed Final Judgment further recited that “[t]he parties announced an agreement” and that the court was rendering judgment after hearing that agreement. Thus, the judgment reflects that an agreement existed and also that the county court had evidence of both its existence and its substance. Contra Bexar Cty. Crim. Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ) (stating that the word “Approved,” in the judgment signed by the appellant, with nothing more, did not indicate a consent judgment when “[n]othing in the body of the judgment suggests that the case had been settled or that judgment was rendered by consent” and that “[t]here are no other indications of agreement in the record”).

Nothing in the record indicates that Reedom signed the Agreed Final Judgment under protest or in any way indicated to the county court that it did not reflect the parties’ agreement. Contra Baw, 949 S.W.2d at 767 (holding that despite signing the divorce decree as “approved and consented to as to both form and substance,” the appellant, “by his objections to the trial court’s characterization of the [profit-sharing-retirement-trust] plan, did not explicitly and unmistakably give his consent to that portion of the divorce decree and did not waive his right of appeal”). He does not argue that the judgment erroneously states the existence of an agreement when none existed or that he did not agree to the terms of the judgment. In fact, he makes no argument at all about whether the Agreed Final Judgment was an agreed judgment. Nor does he argue that the county court did not have jurisdiction to render the Agreed Final Judgment. See Pillitteri, 165 S.W.3d at 718. Instead, he appears to complain about the dismissal of a federal lawsuit he filed against Woodstock and whether the dismissal was proper under federal rules of civil procedure. Accordingly, he has waived his issues on appeal.” Reedom v. 5950 Boca Raton LP, No. 02-18-00269-CV, 2019 Tex. App. LEXIS 7664, at *3-4 (Tex. App.—Fort Worth Aug. 26, 2019)

You must make your complaint in a timely manner–and comply with the pertinent rules:

Findings and Conclusions: “Father filed his request for findings and conclusions under rule of civil procedure 296. Rule of civil procedure 296 provides that in “any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law.” Tex. R. Civ. P. 296. Once properly requested, a trial court has twenty days to file its findings of fact and conclusions of law, and if the trial court fails to do so, the requesting party must notify the trial court within thirty days after filing the original request. Tex. R. Civ. P. 297. When a party notifies the trial court of its failure to file findings and conclusions, but the notice is untimely, the requesting party has waived the right to complain on appeal. See Vee Bar, Ltd. v. BP Amoco Corp., 361 S.W.3d 128, 131 (Tex. App.—El Paso 2011, no pet.) (holding ranch owners waived any right to complain on appeal about trial court’s failure to file findings of fact and conclusions of law where owners’ filing of past-due-findings notice in trial court was untimely). Here, the trial court signed its final modification order on December 20, 2018. On January 9, 2019, Father timely filed a request for findings of fact and conclusions of law. Then, on February 12, 2019, Father notified the trial court of past-due findings of fact and conclusions of law. Father’s notice of past-due findings and conclusions was not timely because it was more than thirty days after the January 9, 2019 request. Therefore, even if Father could claim an entitlement to findings under rule 296, he waived that entitlement.”  In the Interest of T.M., No. 02-19-00114-CV, 2019 Tex. App. LEXIS 7679, at *15-16 (Tex. App.—Fort Worth Aug. 26, 2019)

Limitations: “On appeal, Silverman admits that the trial court’s findings and conclusions and judgment did not specify the years from which the trial court derived each portion of the recovery amount, but she asserts that we must “assume[] that the portion of the 2013 debt included within was limitations-barred.” We disagree. It was Silverman’s burden to show that a portion of the Association’s requested recovery was time-barred and ensure the appropriate findings were entered. See Tex. R. Civ. P. 299; Payne, 381 S.W.3d at 618-19. By failing to do so she has waived any error by the trial court’s failure to find on her affirmative defense or by the trial court’s damage award.” Silverman v. Clairemont H.A., Inc., No. 02-18-00380-CV, 2019 Tex. App. LEXIS 7820, at *13-14 (Tex. App.—Fort Worth Aug. 28, 2019)

That’s all for right now.  Enjoy the rest of the holiday, and I hope to see you at the Advanced Civil Appellate Seminar later this week.

Yours,

Steve Hayes

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