Error Preservation in Texas Civil Cases, January 27, 2020

January 26, 2020

Dear All:

I skipped a week, and it appears the bottom fell out. But there is a lot of stuff here to contemplate:

Table of Contents

At least in a divorce proceeding, the lack of pleadings to support portions of a default judgment is a complaint which one can first raise on appeal

Default Judgment/Pleadings

Here are a couple of complaints which were preserved–and the court’s reasoning instructs us on what to do and why

Discovery
Discovery

The following lengthy discussions of why objections to a jury charge did not preserve error is worth reading, if for no other reason to remind us of the challenge we face in preserving a complaint about the charge

Jury Charge

Jury Charge

Keep in mind–a motion which is not brought to the trial court’s attention will not preserve the complaint raised by the motion. Getting a ruling on the motion shows you brought it to the trial court’s attention

Continuance/Jury Trial
DTPA

You have to comply with the pertinent rules

Findings

You have to get a ruling on your complaints

Evidence
Proof

The Blurbs

At least in a divorce the lack of pleadings to support portions of a default judgment is a complaint which one can first raise on appeal:

Default Judgment/Pleadings: “As an initial matter, Benavides argues Garcia waived her first and third issues by failing to raise them in her motion for new trial. A default divorce decree must be supported by the pleadings. Lynch v. Lynch, 540 S.W.3d 107, 134-35 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citing Tex. R. Civ. P. 301; Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). “‘This rule is a specific application of the more general principle that a party may not be granted relief in the absence of pleadings to support that relief, unless the request for relief is tried by consent—a situation that cannot occur in the context of a default judgment.'” Id. (quoting In re Marriage of Day, 497 S.W.3d 87, 90 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)). Therefore, a challenge to the sufficiency of the pleadings may be raised for the first time on appeal. See Day, 497 S.W.3d at 90.

Further, although no evidence is generally required to support a default judgment, the general rule is limited in the divorce context by section 6.701 of the Family Code, which provides: “In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer.” Tex. Fam. Code Ann. § 6.701; accord Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.—Dallas 2004, no pet.); Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2001, no pet.). In a divorce case, a petitioner is required to prove up the material allegations in the petition in order to obtain a default divorce, and a respondent may raise evidentiary challenges for the first time [*4] on appeal. Agraz, 143 S.W.3d at 552; Osteen, 38 S.W.3d at 814.

Here, because Garcia’s challenges to the default decree may be raised for the first time on appeal, we conclude she has not waived them and turn to the merits.” Garcia v. Benavides, No. 04-19-00451-CV, 2020 Tex. App. LEXIS 350, at *3-4 (Tex. App.—San Antonio Jan. 15, 2020)

Here are a couple of complaints which were preserved–and the court’s reasoning instructs us on what to do and why:

Discovery: “Real party responds that relators waived their objection [about the overbreadth of the discovery requests] because they did not present it to the trial court and that, in any event, their request did not extend back thirty or more years and was thus not overbroad in time. We disagree. Real party first sent a subpoena to Longmont, which timely served written objections to each of real party’s discovery requests, including an objection that the requests were “not limited to . . . any relevant time period.” Thus, real party was on notice that at least one relator objected to the time period of the requests. Moreover, relators’ motion for protection and to quash—which attached Longmont’s written objections as an exhibit—continued the objection by heavily relying on the timeline of the allegations made in the underlying lawsuit to argue that real party’s requests were overbroad and irrelevant. See Nat’l Lloyds Ins. Co., 507 S.W.3d at 223 (finding no waiver where party resisting discovery “objected from the earliest instance,” clearly stated objections and extent it refused request, and continued to object). Thus, relators preserved this issue for our review. Tex. R. App. P. 33.1(a).” In re Stagner, No. 01-18-00758-CV, 2020 Tex. App. LEXIS 630, at *10 n.6 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020)

Discovery: “Real party’s mandamus response argues that relators waived this objection [that their income tax returns were not relevant nor material], but we disagree. Relators’ motion for protection and to quash argued that real party’s requests for tax returns are “wholly irrelevant to this lawsuit” and objected to the confidential nature of the documents that real party sought, including tax documents. Thus, relators did not waive their objection. SeeTex. R. App. P., 33.1(a).” In re Stagner, No. 01-18-00758-CV, 2020 Tex. App. LEXIS 630, at *15 n.7 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020)

The following lengthy discussions of why objections to a jury charge did not preserve error is worth reading, if for no other reason to remind us of the challenge we face in preserving a complaint about the charge:

Jury Charge: “Our decision point in this case, however, turns on the preservation of error. The Trust advances several arguments on why the charge is erroneous. It also argues in its brief that the error was reasonably calculated to and probably did cause rendition of an improper judgment. Burnet Holdings does not respond to those arguments. Instead, it pitches its response solely on the claim that the Trust waived any error by consenting to the charge at an informal charge conference and failing to make a sufficient objection at the formal charge conference. To explain those claims, we need to add some detail into how the charge was put together.

 Rule 271 provides that the court will prepare the charge. Tex.R.Civ.P. 271. The trial court here apparently had the assistance of a court staff attorney who worked with the parties in formulating the [*13] charge. During trial, that staff attorney circulated a draft charge. At the time the charge was circulated, Question Seven asked, “Did any of the following parties intentionally create a public nuisance?” (emphasis added), which was followed by a definition of the term “intentionality.” The prefatory instructions also contained a definition for “public nuisance” that described “conduct unreasonably interfer[ing] with a public right or public interest.” That draft charge also defined the term “unreasonable interference.” The trial court’s staff attorney emailed the draft with an explanatory note stating that a “statutory public nuisance” claim required the intentionality requirement to, (1) comport with the statutory language, and (2) for it to serve as a predicate for the conspiracy claim that the Trust was also pursuing. The Trust’s counsel made non-substantive edits to this portion of the draft charge and replied back to the staff counsel that his analysis “sounds good.”

The trial court’s final charge, as we note above, differed from this earlier draft. The final charge omitted any mention of a public nuisance, dropped the definition of public nuisance and unreasonable interference, [*14] and instead asked about a common nuisance. At the final charge conference, the Trust counsel made this objection to the charge:

[TRUST’S COUNSEL]: And Plaintiff objects to the language in Question No. 7. The language, “Did any of the following parties intentionally maintain a common nuisance,” should be, “Did any of the following parties maintain, own, use, or is a party to the use, of a common nuisance,” because it’s confusing.

THE COURT: Overruled.

Texas Rules of Civil Procedure 274 provides, “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.” Tex.R.Civ.P. 274. And under Rule 274, “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Id. The rule creates a two-pronged test: objections to the charge must specify the error and the legal basis of the objection. Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 892 (Tex.App.–El Paso 2005, pet. denied), citing Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). Our Court has written that Rule 274 is strictly construed and embodies a “rigorous standard for sufficiency of charge objections.” Abell, 157 S.W.3d at 892.

Burnet Holdings first urges that opposing counsel’s email note that an earlier draft “sounds good” signaled its desire to include the intentionality verbiage [*15] and instruction. HN6 Under what is termed the invited error doctrine, a party cannot complain on appeal about an action that the trial court took at the request of the complaining party. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); N.E. Texas Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (Tex.[Comm’n Op.] 1942) (” It is an elementary principle supported by many authorities that a litigant cannot ask something of a court and then complain that the court committed error in giving it to him.”). We decline to apply that doctrine here because the draft charge that was circulated, and commented on, was different from the final version. The first draft charge asked about “public nuisance” and provided a definition for the same, while the final charge asked about “common nuisance” with its own set of definitions. The invited error doctrine applies when a party “unequivocally take[s] a position in the trial court that is clearly adverse to its position on appeal.” Tittizer, 171 S.W.3d at 862, citing Am. Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 589 (Tex.1975) (“One of the requirements for application of the doctrine of judicial estoppel is that the statement must be deliberate, clear, and unequivocal.”). Given the change in the charge language, and vagaries in the terse email reply of “sounds good,” we decline to find estoppel in that fact alone.

Burnet Holdings’ second argument is that the objection [*16] made at the charge stage fails to comply with Rule 274 because it never told the trial court why the charge was wrong. HN7 And significantly, the Texas Supreme Court in Castleberry v. Branscum specifically held that an objection stating that an instruction “may confuse the jury” or “prejudice the defendant” was too general because it did not explain “why the instruction [was] legally incorrect[,]” or “how it would confuse the jury or prejudice the defendants.” 721 S.W.2d at 277. Similarly, the Trust here objected that a different Question Seven should be used because otherwise the question is “confusing.” That objection, however, never explains why the question as worded is confusing, nor does it explain how the addition of the intentionality requirement adds an element not required by Chapter 125, or conflicts with the “knowingly” standard already found in the instructions. We conclude that the bare objection that the charge as given was “confusing” did not adequately preserve error. Castleberry, 721 S.W.2d at 277; see also Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014) (objection that did not explain Casteel problem with submission failed to preserve that complaint).

The Trust responds, however, that its oral recitation of a form of the question (dictated into the record) should have [*17] alerted the trial court to the problem with the charge. HN8 And indeed, we generally require a timely objection “stat[ing] the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]” (emphasis added). Tex.R.App.P. 33.1. In effect, the Trust argues that the alternate oral submission implicitly demonstrates the trial court’s awareness of the complaint now urged on appeal. The alternate submission did not contain the word “intentional” nor a definition of that term. Had the trial court placed a transcript of the alternate submission side by side with the given charge, that distinction might have become apparent. But the alternate submission differed in another significant way with the charge as given. Question Seven asked whether any defendant “maintain[ed] a common nuisance.” The alternate submission added other ways in which the defendants might have been connected to a common nuisance: “Did any of the following parties maintain, own, use, or is a party to the use, of a common nuisance[?]” (emphasis added). It is just as likely that the trial court [*18] might have perceived this added verbiage as the gist of the objection.

Certainly, the trial court’s appreciation of a party’s position, and rejection of it in a timely fashion, is the cornerstone of preservation. State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Yet we cannot ignore the realities of trial practice.  As the court wrote in Cruz v. Andrews Restoration, Inc.:

Trial courts lack the time and the means to scour every word, phrase, and omission in a charge that is created in the heat of trial in a compressed period of time. A proposed charge, whether drafted by a party or by the court, may misalign the parties; misstate the burden of proof; leave out essential elements; or omit a defense, cause of action, or (as here) a line for attorney’s fees. Our procedural rules require the lawyers to tell the court about such errors before the charge is formally submitted to a jury. Tex. R. Civ. P. 272. Failing to do so squanders judicial resources, decreases the accuracy of trial court judgments and wastes time the judge, jurors, lawyers, and parties have devoted to the case.  364 S.W.3d 817, 829-30 (Tex. 2012). Consequently, the court in Cruz concluded that the mere filing of a pretrial charge that included a subpart of a question that was omitted from the final charge did not sufficiently [*19] alert the trial court to the issue. Id. at 831. By the same token, the oral dictation of the text of a question at the same time charge objections were made did not alert the trial court to the problem with its existing question without something more. Had counsel explained why its suggested charge more closely followed the statute, we might view the situation differently. But leaving the task of discerning the differences between the two forms of the questions to the trial court simply asks too much.

The Trust directs us to Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. 2003) as support for the adequacy of its objection. The critical issue in that case was whether a farm was run a certain way for at least one year before suit was filed–if it was, the suit was barred, and if not, a repose statute did not apply. Rather than inserting the one-year date, the trial court used a date that was off by more than ten years. The aggrieved party had objected to the charge’s wording, but only by a “naked” objection to the date used. Id. at 38. The party had also requested a different question that used the correct date but was otherwise defective in its wording. The court of appeals found a waiver. The Texas Supreme Court disagreed, noting that the complaining party [*20] had “specifically objected to the date submission.” Id. at 39. We nonetheless find the case distinguishable. The party explicitly objected to the key term in the question as given (the date) and then called the court’s attention to its requested question that used the correct date. Given the importance of the date to the statute of repose defense, there is little doubt the trial court would have been aware of the significance of the date. Here by contrast, there was no explicit reference to the inclusion of the objectionable term (the intentionality element) and the trial court was left to discern that on his own.

The Texas Supreme Court reminds us that “[o]ur procedural rules are technical, but not trivial.” Burbage, 447 S.W.3d at 258. While we construe those rules liberally so that the right to appeal is not lost unnecessarily, [*21] “we cannot make assumptions” when an objection fails to explain the nature of the error. Id. “Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.” Id. Because the objection here was not sufficient to apprise the trial court of the issue now claimed as error, we overrule Issue One.” Meyers v. 8007 Burnet Holdings, LLC, No. 08-19-00108-CV, 2020 Tex. App. LEXIS 560, at *12-21 (Tex. App.—El Paso Jan. 22, 2020)

Jury Charge: “Given the foregoing factual scenario, the trial court submitted to the jury Questions 7 and 9. Again, through the former, it asked: “Did [Meat] fail to comply with their obligations to [USA] arising out of the cattle transactions described below?” The “cattle transactions described below” were those “Cattle specifically described in signed promissory notes[.]” Through Question 9, the jury was asked a like question, that being whether “[Meat] fail[ed] to comply [*12] with their obligations to [USA] arising out of the cattle transactions described below.” This time, though, the “cattle transactions described below” were the “Cattle not specifically described in signed promissory notes[.]”

To reiterate, we must afford a jury question a reasonable, as opposed to technical, interpretation from the viewpoint of a juror untrained in the law but exercising common sense. And, the reasonable, commonsensical jury having seen the nature of the business relationship between USA and Meat and the issues being tried would lead us to construe both Questions 7 and 9 as encompassing what we call the oral umbrella agreement and the “obligations” of Meat under it. Those “obligations” consisted of the general, nonspecific, overall promise to pay USA for the expenses of acquiring and rearing the cattle. Indeed, the jury instruction accompanying Question 8 indicates as much.

Question 8 directed the jury to calculate the damages recoverable when Meat failed to abide by its “obligations.” Those damages were limited to the “difference, if any, between the sales proceeds received by [USA] when the cattle were sold and USA’s purchase, feeding and care costs, and USA’s cost [*13] to finance these items.”

Moreover, Meat did not object to Question 9 before the trial court submitted it to the jury. Though the same is not true regarding Question 7, the objections uttered were limited. Meat simply asserted that the question 1) “should be submitted in broad form”; 2) “constitutes a comment on the weight of the evidence in connection with Defendant’s theory that Plaintiffs could not rely on the projections provided to them by Defendant for the purchase of the individual lots of cattle”; and, 3) “it will nudge the jury in the direction of the Defendant’s theory.” As can be seen, nothing was said about the question being nonspecific, omitting elements, being immaterial, referring to an agreement other than one founded on the promissory notes, referring to a nonexistent agreement, or the like. So, its current objections about the questions’ wording and their failure to specify the “obligations” at issue were waived. See Tex. R. Civ. P. 274 (stating that a party objecting to a charge must specify the objectionable matter and the grounds of the objection and that any complaint concerning any defect, omission, or fault in the pleading is waived unless specifically included in the objection); [*14] Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014) (stating the same).

And, because each question apparently related to the obligations imposed via the general, nonspecific oral umbrella agreement as opposed to the individual promissory notes, it matters not that Question 7 said nothing about the elements underlying a cause of action to recover upon a note. See TrueStar Petrol. Corp. v. Eagle Oil & Gas Co., 323 S.W.3d 316, 319 (Tex. App.—Dallas 2010, no pet.) (stating that,  to prevail, a plaintiff must prove the note in question, that the defendant signed it, that the plaintiff is the legal owner and holder of the note, and that a certain balance is due and owing). So, the contention about the omission of those elements is inconsequential.

As for the contention that the answer to Question 7 was immaterial because it posed a question of law, we note the following. Meat said nothing of that when given the opportunity to object during the charge conference. Thus, it too was waived. See Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 627-28 (Tex. App.—Dallas 2004, pet. denied) (wherein the appellant argued that “the trial court erred in submitting the question to the jury because whether a contract has been breached is a question of law” and holding the Mitchells waived the complaint by failing to assert it before the charge was read to the jury); accord Ibarra v. City of Laredo, No. 04-10-00665-CV, 2012 Tex. App. LEXIS 5741, at *5-6 (Tex. App.—San Antonio July 18, 2012, no pet.) (mem. op.) (holding the [*15] same).

We further note that both the existence of a contract and its breach are questions of fact, unless undisputed. See Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010) (per curiam); Austin Tapas, L.P. v. Performance Food Grp., Inc., No. 03-18-00680-CV, 2019 Tex. App. LEXIS 6589, at *5 (Tex. App.—Austin Aug. 1, 2019, no pet.) (mem. op.); Berg v. Wilson, 353 S.W.3d 166, 174 (Tex. App.—Texarkana 2011, pet. denied). Meat did not concede the existence of the umbrella agreement and the “obligations” arising under it to pay for the lots of cattle and expenses related to caring for them. Nor did it concede that it breached those obligations. Thus, such topics were questions of fact for the jury to decide, not questions of law for the court.

Regarding Jury Question 9, Meat believed it also to be immaterial and defective for reasons similar to the purported immateriality and defectiveness of Question 7. Yet, those complaints too should be overruled for the very same reasons the complaints about Question 7 were.

Meat also complained here that Question 9 was immaterial because there was “no record evidence of any specific terms of any alleged oral contract.” Admittedly, our perusal of the record uncovered no express contract between it and USA delineating the specific terms of an agreement.  Yet, contracts arise in various ways, one of which is through a course of conduct. See Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex. 1981) (stating that “[e]ven prior to the enactment [*16] of the [Uniform Commercial] Code it was recognized in Texas that a contract could be formed by conduct” and “[s]uch a contract is one implied in fact”). An implied contract arises when the parties’ acts indicate, according to the ordinary course of dealing and common understanding, that there is a mutual intention to contract. Id.; Stewart & Stevenson, LLC v. Galveston Party Boats, Inc., No. 01-09-00030-CV, 2009 Tex. App. LEXIS 8582, at *28 (Tex. App.—Houston [1st Dist.] Nov. 5, 2009, no pet.) (mem. op.). The record at bar contains evidence of 1) Meat repeatedly approaching USA to buy cattle for it; 2) USA buying and raising the cattle; 3) the cattle later being sold; and, 4) USA forwarding the proceeds of the sale to Meat after deducting the costs it incurred in buying and raising the cattle. If nothing else, that is some evidence of an ordinary course of dealing evincing a common understanding and mutual intention to contract. That is, it is some evidence of a contract between the parties arising by implication. It is also some evidence of an agreement by Meat to repay USA for buying, raising, feeding, and selling the lots of cattle it sought. And, not until the cattle market dropped many months after the parties began their business relationship did Meat deign to question the arrangement. So, Meat is mistaken in arguing that Question 9 was [*17] immaterial because there was no record evidence of a contract.

As for Meat’s current complaints about Question 10, we start with the one about it being immaterial because there was no evidence of a contract between the parties. Question 10 tracked the language of Question 8; through it, the jury was asked to determine the sum of money, if any, payable which “would fairly and reasonably compensate [USA] for its damages, if any, that resulted from” Meat’s failure to comply with the “obligations” encompassed within Question 9. And, because there was evidence of a contract between Meat and USA, as we concluded in the immediately preceding paragraph, Question 10 is not immaterial for the reason Meat proffered.

As for the complaint that Question 10 was immaterial because it incorporated the wrong measure of damages, Meat did not complain about the measure used at trial. Thus, it waived the complaint here. Moreover, this complaint, too, is premised on the notion of there being no evidence of a contract between Meat and USA; yet, as previously discussed, the record contains such evidence.

As for the complaint about Question 10 being immaterial because of the supposed “absence of any valid [*18] predicate finding that [Meat] breached the terms of [an] alleged contract with USA,” it is unaccompanied by substantive analysis and, therefore, waived. Anderson v. Safeway Tom Thumb, No. 02-18-00113-CV, 2019 Tex. App. LEXIS 4284, at *7 (Tex. App.—Fort Worth May 23, 2019, pet. denied) (mem. op.) (stating that HN7 “[i]n the absence of appropriate record citations or a substantive analysis, a brief does not present an adequate appellate issue”). Furthermore, the question actually is predicated upon an affirmative answer to Question 9, and the latter encompassed whether Meat failed to perform its “obligations” to USA arising from the cattle transactions. The jury answering Question 9 affirmatively means that the predicate to Question 10 is present. So, we overrule this complaint, too.

As for the contention that no evidence supports the jury’s answer to Question 10, we disagree. A witness for USA testified that $221,823 and change was owed to it; the jury happened to award that exact amount. Furthermore, the multiple components of that sum were explained in USA’s Exhibit 500.

As for the contention that no evidence appears of record indicating that the damages awarded in Question 10 were reasonable and necessary, the complaint is premised on the conclusory argument that, “by [*19] its submission of Question 10, USA is seeking recovery in the nature of ‘remedial damages.'” Why the damages sought were remedial and only remedial went unexplained. Again, Meat merely concluded as much. Thus, the issue was inadequately briefed, and we overrule it. See id.

Regarding the complaints about Question 11, we note the following. They too concern allegations about “compositional problem[s]” akin to Questions 7 and 9 and about which Meat failed to object during the charge conference. Consequently, those “compositional problem[s]” were waived, too. As for the complaint that Question 11 said nothing about the terms of the agreement underlying the corn purchases encompassed by the question, the record contains evidence of Meat simply asking USA, via email, to buy the corn. Other evidence indicates that the corn was to be fed to Meat’s cattle. The rather loose nature of the transactions comports with the overall loose nature of the business relationship (i.e., the buying, feeding, and selling of cattle) in which Meat and USA engaged for some time. Simply put, their continuing course of conduct supplied the evidence Meat now claims was missing.

As for the complaints about Question [*20] 12, we say the following. Meat mistakenly argues that the damages awarded therein were not predicated on a finding of breached contract. The requisite predicate appeared through the answer to Question 11. And, because Meat failed to object to the “compositional problem[s]” in Question 11, it cannot now argue that the answer was insufficient to be the predicate to Question 12. So too do we find evidence of record indicating damages of $284,742, i.e., the amount awarded. USA’s bookkeeper testified to same. Thus, the finding has evidentiary support. Furthermore, USA’s Exhibit 501 itemized the sums comprising the $284,742 sought by and awarded to it, and the itemization included amounts attributable to interest.” L & S Meats, LLC v. USA Feedyard, LP, No. 07-18-00030-CV, 2020 Tex. App. LEXIS 590, at *11-20 (Tex. App.—Amarillo Jan. 22, 2020)

Keep in mind–a motion which is not brought to the trial court’s attention will not preserve the complaint raised by the motion. Getting a ruling on the motion shows you brought it to the trial court’s attention:

Continuance/Jury Trial: “In issue two, Shouldice complains that the trial court erred by not conducting a jury [*9] trial, in granting case-determinative sanctions, and in rendering judgment that she filed her will contest in bad faith. Neither Shouldice nor her attorney appeared when the case was called to trial. The docket sheet indicates an emergency motion for continuance may have been filed before the trial court rendered judgment but the record does not show that an emergency motion for a continuance was brought to the trial court’s attention. HN2 As a prerequisite to complaining about the denial of a motion, the record must show that the motion was brought to the trial court’s attention and that the trial court either denied the motion or refused to rule on the motion and the complaining party objected to the refusal. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.); see also Tex. R. App. P. 33.1(a).” Shouldice v. Van Hamersveld, No. 09-18-00355-CV, 2020 Tex. App. LEXIS 622, at *8-9 (Tex. App.—Beaumont Jan. 23, 2020)

DTPA: “We also reject Sadeghian’s argument that the declaratory relief awarded by the trial court somehow runs afoul of the election of remedies doctrine, both because that argument ignores the DTPA’s plain language, id., and because Sadeghian failed to preserve that issue for our review. See Tex. R. App. P. 33.1(a).” Sadeghian v. Jaco, No. 05-18-00838-CV, 2020 Tex. App. LEXIS 670, at *11 (Tex. App.—Dallas Jan. 23, 2020)

You have to comply with the pertinent rules:

Findings: “To preserve a right to appellate review of a complaint about a trial [*7] court’s failure to provide a party with written findings, the record must show the party requesting the findings both filed a request and then, when the trial court failed to provide them, filed a written reminder notifying the trial court that it had not complied with the party’s request for findings. In her appeal, Spears suggests the law placed a duty on the trial court to remind her that it did not intend to comply with her request. The Rules of Civil Procedure, however, do not place that duty on the trial court. Instead, the Rules burden the party who asked for written findings to notify the trial court, in writing, that the trial court had failed to comply with that party’s request.

Spears did not file the required written notice notifying the trial court that it failed to comply with her request. Consequently, Spears failed to preserve her right to complain about the alleged error in her appeal.” Spears v. Haynes, No. 09-18-00147-CV, 2020 Tex. App. LEXIS 463, at *6-7 (Tex. App.—Beaumont Jan. 16, 2020)

You have to get a ruling on your complaints:

Evidence: “Additionally, because these objections are to form, not substance, Robins was required to preserve them in the trial court. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (holding that objections to affidavit that it (1) stated that facts in affidavit were true instead of stating that facts in expert’s reports were true, (2) lacked notary’s signature, and (3) did not attach reports, were objections to affidavit’s form, rather than substance, and therefore subject to error preservation rule that required trial court’s ruling on objections); see also Tex. R. App. P. 33.1(a)(2)(A) (stating that to preserve error, record must show that trial court ruled on objection or, if it refused to rule, that complaining party objected to refusal to rule). Although Robins did broadly raise his hearsay, “unsworn under penalty of perjury,” and failure to “detail the affiants’ criminal records” objections [*30] in his reply in support of his TCPA motion to dismiss, the record does not reflect that the trial court ruled on the objections. Therefore, Robins failed to preserve them for our review.” Robins v. Clinkenbeard, No. 01-19-00059-CV, 2020 Tex. App. LEXIS 423, at *29-30 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020)

Proof: “Finally, Robins argues that the Clinkenbeards “lack any expert witness testimonial affidavits to purportedly back their allegations of legal malpractice.” Although Robins made this objection to the trial court in his reply brief supporting his TCPA motion to dismiss, the record does not reflect that he obtained a ruling on it. See In the Interest of A.J.H., No. 14-03-01016-CV, 2004 Tex. App. LEXIS 1969, 2004 WL 414093, at *5 n.3 (Tex. App.—Houston [14th Dist.] Mar. 2, 2004, no pet.) (mem. op.) (holding that, HN15 in challenge to sufficiency of evidence based on lack of expert testimony, failure to object to testimony of witnesses on basis that they were not qualified as experts to render their opinions waived complaint on appeal) (citing Tex. R. App. P. 33.1(a)).” Robins v. Clinkenbeard, No. 01-19-00059-CV, 2020 Tex. App. LEXIS 423, at *31 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020)

Then, there was a collection of cases in which parties failed to preserve error by failing to raise their complaints in the trial court.

All for now.  I hope this helps.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, January 11, 2020

January 11, 2020

Dear All:

Hey there, Buckaroos!  Some old, some new, some reminders, as the Table of Contents shows.

Table of Contents

I will let you all figure out the extent to which the courts feel that the Supreme Court has relaxed the error preservation rules as they apply to motions to dismiss under the Texas Citizens Participation Act

TCPA

Your complaint must be timely–and I put this case in because of the warning it provides about segregating attorneys fees in a bench trial, as to which the courts of appeal are all over the lot

Attorneys Fees (segregation)

Your must present your complaint with sufficient specificity, and the complaint you raise on appeal must comport with the complaint you raised at trial.

Evidence

The Blurbs

I will let you all figure out the extent to which the courts feel that the Supreme Court has relaxed the error preservation rules as they apply to motions to dismiss under the Texas Citizens Participation Act:

TCPA: “Our error preservation rules generally require that “[a]s a prerequisite to presenting a complaint for appellate review” a party must make a timely complaint to the trial court that states “the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]” Tex.R.App.P. 33.1. Appellants point out that Appellees never challenged the existence of an alleged defamatory statement to the trial court [*9] and this failure precludes us from considering the issue further. We might agree, but for the Texas Supreme Court’s decision in Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018). There, the court relaxed the preservation rules for a party asserting a TCPA motion to dismiss, stating that the “[r]ules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.” Id. at 896. In Adams, the movant on a motion to dismiss generally claimed in both the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about “services in the marketplace” which was a subset of “matter[s] of public concern” as previously defined by the TCPA. He had not, however, specifically urged to the trial court that his speech touched upon “community or environmental well-being” which was another subset of matters of public concern, and the court of appeals considered that issue waived. Id. The Texas Supreme Court disagreed, stating that he “was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.” Id. at 896-97, citing Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised [*10] in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”) (emphasis in orig.). The court also placed emphasis on the statutory language of the TCPA that requires that a court “shall consider the pleadings and supporting and opposing affidavits.” (emphasis in orig.). Id. This suggests an independent duty on the court to look beyond the parties’ arguments to the pleadings and affidavits before it, to determine if the predicates for the TCPA are met.” Pacheco v. Rodriguez, No. 08-19-00129-CV, 2020 Tex. App. LEXIS 34, at *8 (Tex. App.—El Paso Jan. 6, 2020)

Your complaint must be timely–and I put this case in because of the warning it provides about segregating attorneys fees in a bench trial, as to which the courts of appeal are all over the lot:

Attorneys Fees (segregation): “Because evidence of unsegregated fees is some evidence of segregated fees, Tony Gullo Motors, 212 S.W.3d at 314, a strong argument can be made that (i) a failure to segregate complaint is essentially a factual sufficiency of the evidence challenge [*34] and thus (ii) no error preservation is necessary in the bench trial context. See Tex. R. App. P. 33.1(d). But we need not decide that question because we recently held in a bench trial appeal that a failure to segregate challenge was preserved by an objection that was made after the court’s ruling awarding fees but before final judgment. Anderton v. Green, 555 S.W.3d 361, 372 n.4 (Tex. App.-Dallas 2018, no pet.). Here, we conclude that appellants satisfied any preservation requirement by pointing out the problem during closing argument and in their post-trial filings.” Guillory v. Dietrich, No. 05-18-00504-CV, 2020 Tex. App. LEXIS 35, at *33-34 (Tex. App.—Dallas Jan. 6, 2020)

Your must present your complaint with sufficient specificity, and the complaint you raise on appeal must comport with the complaint you raised at trial:

Evidence: “Father’s objection at trial to the admission of PX-7 follows:

The—the exhibit that the State would like to offer requires a predicate that has not been laid. It’s hearsay as it stands and the business records affidavit does not cure the hearsay within the document. Specifically, what we’re objecting to is their –the contents of the document, claiming the document is something that’s created in the ordinary course of business with a business of scientific analysis that requires expert testimony. [Father] does not have the ability or the personal knowledge to lay that predicate. They have failed to lay that predicate. They’re asking the court hold them to the admissibility standard under 705(b) case law provided previously to the court under Robinson. We’re objecting to this evidence on all of those basis [*15] [sic].

This objection raised the issues of claimed hearsay in PX-7 and the Department’s failure to “lay a predicate” for the drug test by expert testimony. While his objection referred to Rule of Evidence 705(b), Father did not specifically request a hearing thereunder, and while he referred to Robinson, he did not specify how the exhibit was purportedly deficient and inadmissible, or what predicate an expert was required to lay. In contrast, on appeal Father specifically complains that the exhibit contained no evidence demonstrating that the scientific testing methods used “were properly supervised or maintained” and that an expert witness was required to explain how the “underlying facts and data . . . relate to the relevant time period of the hair follicle.” We conclude that his objection at trial does not comport with the issues he raises on appeal and that he has, accordingly, waived the issues. See Elness Swenson Graham Architects, 520 S.W.3d at 159.” F. C. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00625-CV, 2020 Tex. App. LEXIS 119, at *14-15 (Tex. App.—Austin Jan. 9, 2020).

All for now.  Y’all have a good weekend.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, January 4, 2020

January 4, 2020

Dear All:

Some of the courts issued decisions in the first few days of the new year, and some of these decisions are interesting:

Table of Contents

• You have to get a ruling on your complaint
  • Motion to Withdraw Deemed Admissions
• Your must present your complaint with sufficient specificity. Sometimes, based on what their opponent has teed up, a party does complain with sufficient specificity, and sometimes they do not.
  • Deemed Admissions
  • Summary Judgment

The Blurbs

You have to get a ruling on your complaint:

Motion to Withdraw Deemed Admissions: “Appellees contend that Torres failed to obtain a ruling on his motion [*7] to strike [deemed admissions] and thus failed to properly preserve this issue for appeal. To preserve error for appeal, the record must show that: (1) the complaint was made to the trial court by a timely motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, and (2) the trial court ruled on the motion, either expressly or implicitly, or refused to rule, and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). Here, there is nothing in the record to indicate that Torres requested a hearing on his motion, or that the trial court ruled on his motion. There is no written order, there is no mention of Torres’s motion to strike in the trial court’s written order granting defendants’ summary judgment motions, and there is no reporter’s record of either a hearing on Torres’s motion to strike or the hearing on defendants’ motions for summary judgment.” Torres v. Lee, No. 05-18-00631-CV, 2020 Tex. App. LEXIS 15, at *6-7 (Tex. App.—Dallas Jan. 3, 2020)

Your must present your complaint with sufficient specificity. Sometimes, based on what their opponent has teed up, a party does complain with sufficient specificity, and sometimes they do not:

Deemed Admissions: “Torres did not present his merits-preclusive argument with the same degree of specificity to the trial court. The only suggestion that Torres was complaining that the deemed admissions might be merits-preclusive is found in the last two sentences of section III of Torres’s motion to strike. Torres first asserted that he had not acted in flagrant bad faith or callous disregard for the rules. He then stated, “Lastly, striking or withdrawing the deemed admissions against Plaintiffs will ensure that the case will be tried on the merits against Defendants.” As previously noted, the record does not contain a written order or any indication that the trial court ruled on Torres’s motion to strike so we cannot ascertain whether the trial court understood that these statements were to be interpreted as Torres’s merits-preclusive objection. See Tex. R. App. P. 33.1(a)(1)(A). And again, as previously [*14] noted, there is nothing in the record to indicate that the trial court ruled on such an objection.” Torres v. Lee, No. 05-18-00631-CV, 2020 Tex. App. LEXIS 15, at *13-14 (Tex. App.—Dallas Jan. 3, 2020)

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 [*16] was raised for 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 [*17] 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, Ltd. v. City of Jacksonville, No. 12-13-00262-CV, 2019 Tex. App. LEXIS 11264, at *15-17 (Tex. App.—Tyler Dec. 31, 2019)

That’s all for now, Buckaroos.  More next week.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, January 1, 2020

January 1, 2020

Dear All:

Welcome to the New Year!  I hope everyone had a safe and happy holiday season, and anticipates the Best New Year ever!

The courts issued some interesting preservation decisions in the last week of the year, as the Table of Contents shows:

Table of Contents

• The complete failure to authenticate a document is a substantive complaint which can first be raised on appeal
• You have to bring your complaint to the trial court’s attention–just filing something is not enough, especially if you do not get a ruling on what you filed

Rule 11 Agreement

• You must comply with the pertinent rules, and the complaint you raise on appeal must comport with the complaint you raised in the trial court

Summary Judgment (continuance)

The Blurbs

The complete failure to authenticate a document is a substantive complaint which can first be raised on appeal.

Evidence: “In considering the merits of Thomas’s motion, the starting point is the arbitration agreement. In re Estate of Guerrero, this court, sitting en banc, determined that a document submitted as evidence in a motion-to-compel-arbitration or summary-judgment context contains a substantive defect that renders it incompetent if there was a complete failure to authenticate the document. In re Estate of Guerrero, 465 S.W.3d 693, 705, 706-08 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (en banc). The authentication requirement applies to the alleged arbitration agreement Thomas submitted in support of the “Motion to Vacate and Set Aside Judgment.” See id. A party moving the trial court to compel arbitration must show an arbitration agreement exists and was executed. See id. at 703. Absent authentication of the alleged arbitration agreement, Thomas did not prove an agreement to arbitrate. See id. at 705. Thomas completely failed to authenticate the alleged arbitration agreement. The complete absence of authentication of this alleged agreement amounts to a substantive defect that is not waived by the failure to object and obtain a ruling in the trial court. See id. at 705, 706-08. Under this court’s precedent in In re Estate of Guerrero, this substantive defect makes the [*7] alleged agreement submitted in support of the “Motion to Vacate and Set Aside Judgment” incompetent to provide any evidence in support of the motion. See id. Because Thomas did not prove any arbitration agreement, the trial court did not err in denying the “Motion to Vacate and Set Aside Judgment” on the merits. See id. Accordingly, we overrule Thomas’s first issue.” Lewis v. Latson, No. 14-18-00316-CV, 2019 Tex. App. LEXIS 11232, at *6-7 (Tex. App.—Houston [14th Dist.] Dec. 31, 2019)

You have to bring your complaint to the trial court’s attention–just filing something is not enough, especially if you do not get a ruling on what you filed:

Rule 11 Agreement: “A general prerequisite to presenting a complaint for appellate review is that the record shows a timely request to the trial court and either a ruling from the court or a refusal to rule, accompanied by an objection to that refusal. TEX. R. APP. P. 33.1. The record before us does not reflect a timely request to enforce the Rule 11 agreement, or any ruling or refusal to rule by the trial court concerning enforcement of that agreement. Texas Tax asserts in its reply brief that, after filing the Rule 11 agreement, the parties were “immediately informed” that the trial [*15] court refused to enforce it. This assertion is not accompanied by any citation to the record, and our independent review of the record does not reveal anything showing that the Rule 11 agreement was ever presented to the trial court for enforcement or that the trial court refused to enforce it. In a similar situation, the Dallas Court of Appeals held that an appellant waived his complaint that the trial court refused to enforce a valid Rule 11 agreement because he failed “to move the trial court to enforce the Rule 11 agreement ‘with sufficient specificity’ and to obtain a ruling on that motion.” Rammah v. Abdeljaber, 235 S.W.3d 269, 273 (Tex. App.—Dallas 2007, no pet.) (quoting TEX. R. APP. P. 33.1(a)). We likewise hold that Texas Tax has waived its complaint on appeal that the trial court refused to enforce the parties’ Rule 11 agreement. Issue Three is overruled.” Tex. Tax Sols., LLC v. City of El Paso, No. 08-18-00126-CV, 2019 Tex. App. LEXIS 11175, at *14-15 (Tex. App.—El Paso Dec. 30, 2019)

You must comply with the pertinent rules, and the complaint you raise on appeal must comport with the complaint you raised in the trial court:

Summary Judgment(continuance): “Here, McKinney filed neither a motion for continuance of the hearing on HP Fannin’s and Midway’s no-evidence motion for summary judgment nor an affidavit explaining the need for further discovery before the hearing on such motion. McKinney did not ask the trial court to defer ruling on HP Fannin’s and Midway’s no-evidence summary-judgment motion. Indeed, McKinney filed nothing in response to HP Fannin’s and Midway’s no-evidence motion. Therefore, McKinney waived any complaint based on the need for discovery. See, e.g., Murtha v. Savvy’s, Inc., No. 02-18-00065-CV, 2019 Tex. App. LEXIS 4777, 2019 WL 2432150, at *3 (Tex. App.—Fort Worth June 6, 2019, pet. denied) (mem. op.) (“[A]t no time did Murtha ever bring to the attention of the trial court an affidavit or verified motion for continuance of the no-evidence summary judgment hearing.”); Berry, 2004 Tex. App. LEXIS 6492, 2004 WL 1631117, at *4 (appellant waived complaint that inadequate existed time for discovery when he did not file motion for continuance or affidavit explaining need for further discovery before summary-judgment hearing).

In addition, McKinney’s reliance on her verified motion to continue the trial and on the trial court’s trial-continuance ruling to preserve her issue is misplaced.  “[A] motion for continuance of a trial setting [*6] does not preserve error for our review of the granting of a no-evidence summary judgment motion when no continuance of the no-evidence summary judgment hearing was sought.” Murtha, 2019 Tex. App. LEXIS 4777, 2019 WL 2432150, at *3 (citing Chamie v. Memorial Hermann Health Sys., 561 S.W.3d 253, 257 (Tex. App.—Houston [14th Dist.] 2018, no pet.)).” McKinney v. HP Fannin Props., L.P., No. 14-18-00589-CV, 2019 Tex. App. LEXIS 11221, at *5-6 (Tex. App.—Houston [14th Dist.] Dec. 31, 2019)

I hope this helps.

Yours,

Steve Hayes

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

Error Preservation in Texas Civil Cases, December 21, 2019

December 20, 2019

Dear All:

Once again, the courts seemed to have gotten busier as the holidays approach, or perhaps they have just encountered more cases involving error preservation. But some interesting decisions populate this week’s traffic, as the Table of Contents shows–and everyone needs to read the Jury Charge case out of the 14th Court, and the Fourth Court’s opinion distinguishing between whether evidence is conclusory or speculative:

Table of Contents

The complaint you make on appeal must comport with the complaint you make at trial–and one court held that an objection that testimony is speculative is not an objection that it is conclusory.

Constitution
Evidence
Legal Sufficiency

Your complaint must be specific enough

Jury Charge
Constitution

Your complaint must be timely

Evidence
Summary Judgment

The Blurbs

The complaint you make on appeal must comport with the complaint you make at trial–and one court held that an objection that testimony is speculative is not an objection that it is conclusory:

Constitution: “T.B. asserts the trial court abused its discretion in compelling T.B. [*14] to invoke his right not to testify in the presence of the jury because the forced invocation of his Fifth Amendment right not to testify lead the jury to draw speculative, unfounded inferences as to what he would have said. This argument does not comport with the objection made at trial.

After the State rested its case and at the request of both parties, the trial court brought T.B. into the courtroom, outside the presence of the jury, to find out whether he wanted to testify. When asked, T.B. replied, “I am not interested in this circus.” The trial court then asked that the jury be brought into the courtroom and informed T.B.’s attorney and the State that T.B. would be asked in front of the jury if T.B. was going to testify. T.B.’s counsel objected because he believed T.B. had a right not to testify regardless of whether the commitment proceeding was a civil or criminal case.

In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court. Martin v. Cottonwood Creek Constr., LLC, 560 S.W.3d 759, 763 (Tex. App.—Waco 2018, no pet.). Because the complaint argued on appeal does not comport with the objection asserted at trial, T.B.’s fourth issue is not preserved and is overruled. See Tex. R. App. P. 33.1(a).” In the Interest of T.B., No. 10-19-00190-CV, 2019 Tex. App. LEXIS 10966, at *13-14 (Tex. App.—Waco Dec. 18, 2019)

Evidence: “Mother’s contention on appeal is that Father’s valuation testimony is conclusory and, thus, inadmissible. Mother did not, however, raise that objection in the trial court. As to the bulk of Father’s testimony, Mother’s only objection was to the form of the question being asked. As to the Gomez Morin property, Mother’s objection was that the testimony was speculative. HN26 But an objection that testimony is conclusory is not the same as an objection that it is speculative. Conclusory testimony states a conclusion with no basis or explanation. Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019). Speculative testimony is based on guesswork or conjecture. . . .A complaint on appeal that does not comport with the party’s objection at trial is not preserved for review. In re N.T., 335 S.W.3d 660, 670 (Tex. App.—El Paso 2011, no pet.) (citing Knapp v. Wilson N. Jones Mem. Hosp., 281 S.W.3d 163, 171 (Tex. App.—Dallas 2009, no pet.); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)). Mother’s challenge on appeal to the admission of Father’s testimony does not comport with her objections to that testimony [*35] at trial. No error is preserved for review. See In re N.T., 335 S.W.3d at 670.

In addition, preservation of error in the admission of evidence requires a timely objection. Tex. R. App. P. 33.1(a); Biggar v. Palmer, No. 08-01-00468-CV, 2003 Tex. App. LEXIS 8892, 2003 WL 22361068, at *9 (Tex. App.—El Paso Oct. 16, 2003, no pet.). Mother did not object at the time Father gave his opinion concerning the value of the Gomez Morin property. Rather, she lodged her objection to speculation only after another question was posed and after an exchange between counsel concerning Mother’s failure to produce documents concerning the property’s value. Mother’s belated objection preserved nothing for review. See Tex. R. App. P. 33.1(a);” Jardon v. Pfister, No. 08-17-00183-CV, 2019 Tex. App. LEXIS 10918, at *34-35 (Tex. App.—El Paso Dec. 17, 2019)

Legal Sufficiency: “The record reflects that Appellant Mother R.V.’s trial counsel moved for an instructed verdict regarding the sufficiency of her voluntary relinquishment of her parental rights to her daughter Y.M. Her trial counsel, however, made no such motion regarding the jury’s finding that termination of her parental rights was in her son J.A.V., Jr.’s best interest. The complaint brought on appeal must be the same as that presented in the trial court. In re C.Y., 2015 Tex. App. LEXIS 10910, 2015 WL 6394559, at *2 (Tex. App.—Fort Worth 2015, no pet.); see Tex. R. App. P. 33.1. Because Appellant Mother R.V.’s sufficiency complaint about the jury’s best-interest finding regarding her son J.A.V., Jr. was not the same one she made in her motion for instructed verdict, her motion for instructed verdict did not preserve her sufficiency complaint on appeal. See 2015 Tex. App. LEXIS 10910 [WL] at *3.” In the Interest of J.A.V., No. 04-19-00455-CV, 2019 Tex. App. LEXIS 10951, at *2 n.3 (Tex. App.—San Antonio Dec. 18, 2019)

Your complaint must be specific enough:

Jury Charge: “Arguing that Texas law requires a “specific nexus” between the control and the injury-causing activity, Brazos asserts Question No. 1 “grossly misstated the law by instructing the jury that Brazos retained control over the entire job, namely, erection of the steel frame.” Brazos’s argument appears to contend that Question No. 1’s instruction regarding control should have been limited to “the installation of the cross-brace at issue.” Because Brazos did not raise this challenge at the charge conference, this issue is not preserved for our review.

To preserve error in the jury charge, the complaining party must timely and plainly make the trial court aware of the complaint and obtain a ruling. . . .Moreover, to preserve error for appeal, the [*22] complaining party’s argument on appeal must comport with its argument in the trial court. . . .

On appeal, Brazos frames this challenge as an improper comment on the weight of the evidence. In the trial court, Brazos’s improper-comment argument was raised as follows:

With regards to Question No. 1 with the instruction that is included in the Charge as the control we believe is improper instruction superfluous issues to be determined constitute improper [comment] on the weight of the evidence interferes with the service province of the jury, improperly influences the jury to the prejudice of Brazos and there is no evidence or there is insufficient evidence to support any finding of the retention of control over the construction of the steel frame by Brazos.

Therefore, the comment — improperly comments on Texas Law.

This objection does not plainly or distinctly raise the issue Brazos now asserts on appeal — that the instruction included with Question No. 1 lacks a “specific nexus” between the control and the injury-causing activity. Accordingly, Brazos did not preserve this issue for our review. See Tex. R. Civ. P. 274; . . . .

We overrule Brazos’s second sub-issue addressing Question No. 1.” Brazos Contractors Dev., Inc. v. Jefferson, No. 14-17-00977-CV, 2019 Tex. App. LEXIS 11049, at *21-22 (Tex. App.—Houston [14th Dist.] Dec. 19, 2019)

Constitution: “In his second issue, T.B. contends the trial court abused its discretion in not permitting him to question prospective jurors on T.B.’s Fifth Amendment right against self-incrimination because T.B. still had a criminal charge pending.

The State counters that T.B.’s argument under this issue was not preserved because T.B. did not present to the trial court specific and proper questions he wished to ask the panel. See In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011) (“a party can preserve error by asking a specific and proper question, stating the basis on which it sought to ask that question, and obtaining an adverse ruling from the trial court”). We agree with the State.

A person has a Fifth Amendment privilege [*11] not to answer official questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. . . . However, blanket assertions of the privilege in civil cases are not permitted. Browning, 113 S.W.3d at 862 n.10. Instead, the privilege must be asserted on a question-by-question basis. Id.; In re Verbois, 10 S.W.3d 825, 828 (Tex. App.—Waco 2000, orig. proceeding). Further, the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. . . .

Prior to voir dire, T.B. presented the trial court with a proposed jury instruction regarding T.B.’s right to remain silent and informed the court that he “would like to voir dire on that….because [he] believe[d] that is law applicable to the case and…individuals could be challenged for cause that would not be able to follow that instruction.” The requested instruction provides:

You are instructed that though not [] criminal in nature, this proceeding grows from a criminal allegation in which the defendant has a constitutional right to remain silent. The defendant may testify on his own behalf. The defendant may also choose not to testify. The defendant’s decision not to testify cannot [*12] be held against him, and it is not evidence of any kind. You must not speculate, guess or even talk about what the defendant might have said if he had taken the witness stand or why he did not. The presiding juror must immediately stop any juror from mention[ing] the defendant’s decision not to testify.

Even if T.B. made a specific enough request, the proposed instruction, and thus any questions relating to it, was not proper. T.B.’s proposed instruction about which he wished to question the prospective jurors proposed a blanket assertion of his Fifth Amendment not to testify and incorrectly prohibited adverse inferences if T.B. refused to testify.

Accordingly, T.B.’s issue is not preserved for our review. T.B.’s second issue is overruled.” In the Interest of T.B., No. 10-19-00190-CV, 2019 Tex. App. LEXIS 10966, at *10-12 (Tex. App.—Waco Dec. 18, 2019)

Your complaint must be timely:

Evidence: “We conclude that the circumstances here are distinguishable from Marquez on which Mother relies in support of her argument. In Marquez, we noted that the attorney who testified in support [*49] of the award of fees “did not preface his remarks by stating that he was making them as an officer of the court nor did he refer to his argument as testimony, and therefore, it would not have been apparent to opposing counsel that an objection was required.” 57 S.W.3d at 593. Here, in contrast, Minor clearly stated from the beginning of his remarks that he was calling himself as a witness to give testimony. With his opening, Minor placed Mother’s counsel on notice that he intended to give direct testimony in support of Father’s request for an award of fees. See id. Because the record shows that Mother did not lodge her objection until Minor had already travelled well into the substance of his testimony, we find she did not comply with the rule requiring a timely objection to preserve error.See Tex. R. App. P. 33.1;” Jardon v. Pfister, No. 08-17-00183-CV, 2019 Tex. App. LEXIS 10918, at *48-49 (Tex. App.—El Paso Dec. 17, 2019)

Summary Judgment: “More importantly, the Lawyers moved for summary judgment solely asserting attorney immunity. While they mentioned the 2011 APA’s disclaimer language in their reply, they cannot (absent consent) rely on arguments raised for the first time in a summary judgment reply. See 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—Austin 1996, no writ). Instead, a motion for summary judgment must expressly present the grounds upon which it is made.” NFTD, LLC v. Haynes & Boone, LLP, No. 14-17-00999-CV, 2019 Tex. App. LEXIS 10911, at *24 (Tex. App.—Houston [14th Dist.] Dec. 17, 2019)

Then, there was the usual collection of opinions in which parties did not preserve complaints because they did not raise the complaints in the trial courts.

I hope this helps.  Y’all have a great holiday.

Yours, Steve Hayes (shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com)

Error Preservation in Texas Civil Cases, 12/17/2019

December 13, 2019

Dear All:

The courts seemed to have gotten busier as the holidays approach, or perhaps they have just encountered more cases involving error preservation. But some interesting decisions populate this week’s traffic, as the Table of Contents shows:

Table of Contents

• I thought I would mention one case where the court seemed to indicate that no complaint as to evidence exists when the parties stipulate in the trial court to what the testimony would have shown.
• Some complaints one can first raise on appeal. One case this week held that one such complaint is a complaint about the failure of the trial court to a give a hearing on a forfeiture based on a gambling offense other than possession of certain gambling devices– “the operation of Rule 33.1(a) may be suspended when the appellant does not have an opportunity to comply with the rule.” I would not count on extending its rationale beyond the situation involved in this case
• The record must show that you preserved your complaint
• You must raise your complaint in a timely fashion, such as a complaint about lack of notice

The Blurbs

• I thought I would mention this case, because the court seemed to indicate that no complaint as to evidence exists when the parties stipulate in the trial court to what the testimony would have shown:

Evidence: “Admittedly, the record in this case is unusual because neither party offered oral testimony, but each offered exhibits and stated what the evidence would show to no objection. When the parties adopt this method of presentation, the trial court may accept their statements as evidence. See Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 380 (Tex. App.—Fort Worth 2004, pet. denied) (“Although an attorney’s statements must be under oath to be considered [*7] evidence, the opponent of the testimony can waive the oath requirement by failing to object when an objection is necessary.” (citing Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam))); see also Anderson v. Safeway Tom Thumb, No. 02-18-00113-CV, 2019 Tex. App. LEXIS 4284, 2019 WL 2223582, at *11-12 (Tex. App.—Fort Worth May 23, 2019, pet. denied) (mem. op.) (per curiam) (same).” Alpha Adventure Ranch at Nocona, LLC v. Warrior Golf Mgmt., LLC, No. 02-19-00030-CV, 2019 Tex. App. LEXIS 10789, at *6-7 (Tex. App.—Fort Worth Dec. 12, 2019)

• Some complaints one can first raise on appeal. This case says that one such complaint is a complaint about the failure of the trial court to a give a hearing on a forfeiture based on a gambling offense other than possession of certain gambling devices– “the operation of Rule 33.1(a) may be suspended when the appellant does not have an opportunity to comply with the rule.” I would not count on extending its rationale beyond the situation involved in this case:

Hearing: “”Following the final conviction of a person for possession of a gambling [*2] device or equipment, altered gambling equipment, or gambling paraphernalia . . . the court shall order [seized gambling proceeds] forfeited to the state.” Tex. Code Crim. Proc. Ann. art. 18.18(a); see generally Tex. Penal Code Ann. § 47.06 (titled, “Possession of Gambling Device, Equipment, or Paraphernalia”). When, as here, the person is convicted of another gambling offense, the person is entitled to notice and a hearing to contest the forfeiture. Tex. Code Crim. Proc. Ann. art. 18.18(b)-(f); State v. Dugar, 553 S.W.2d 102, 104 (Tex. 1977). The State concedes that because Datoo was not convicted for one of the enumerated offenses under Article 18.18(a), he was entitled to notice and a hearing under Article 18.18(b)-(f). See Tex. Code Crim. Proc. Ann. art. 18.18(a)-(f); Dugar, 553 S.W.2d at 104.

Nonetheless, the State asks us to affirm the judgment, asserting that Datoo waived any error by failing to make a timely objection to the trial court. The State relies on Texas Rule of Appellate Procedure 33.1(a) for the general proposition that an appellant must present a “timely request, objection, or motion” to the trial court to preserve the complaint for appellate review. See Tex. R. App. P. 33.1(a). Although this is a civil proceeding, Rule 33.1 applies with equal force to criminal and civil proceedings, and we agree with the Texas Court of Criminal Appeals that “[t]he requirement that an objection be raised in the trial court assumes that the appellant had the opportunity to raise it there.” Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (citations omitted). [*3] In other words, the operation of Rule 33.1(a) may be suspended when the appellant does not have an opportunity to comply with the rule. Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013). To hold otherwise would be inconsistent with the basic tenets of due process—”notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).

In this case, it is undisputed that the trial court signed the forfeiture order without conducting a hearing and without notice to Datoo. Thus, the only possible relief Datoo could seek from the trial court was post judgment. Datoo filed his notice of appeal within thirty days, meaning he had an opportunity to timely file a motion for a new trial. See Tex. R. Civ. P. 329(a), (b). However, while a motion for a new trial is a prerequisite to presenting a complaint on appeal under certain circumstances, none of those circumstances are present here. See Tex. R. Civ. P. 324(a), (b). In a similar case, the Landers Court rejected the State’s argument that the defendant should have preserved her complaint by filing a permissive, as opposed to mandatory, motion for a new trial. Landers, 402 S.W.3d at 253-55. Because the trial court denied Datoo the opportunity to object at the time the error was committed, and because no rule of procedure compelled Datoo to seek post judgment [*4] relief before filing his appeal, we conclude that Datoo may present his complaint for the first time on appeal. See id.; see also Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003) (holding that the defendant could present his complaint for the first time on appeal because “the [trial] court modified the terms of [the defendant’s] probation without a hearing, and [the defendant] had no opportunity to object.”).” Datoo v. State, No. 13-18-00192-CV, 2019 Tex. App. LEXIS 10733, at *1-4 (Tex. App.—Corpus Christi Dec. 12, 2019)

• The record must show that you preserved your complaint:

Record: “When an appellant asserts on appeal that the trial court abused its discretion, “he bears the burden of providing a record showing an abuse of discretion.” Ngwu, 2019 Tex. App. LEXIS 6281, 2019 WL 3307913, at *2. Although the divorce decree entered by the trial court in the instant case recites a record was made, the parties conceded in their briefs that no such record was actually made. A party may waive the making of the record by not objecting to the failure to record the proceedings. Campbell v. Campbell, No. 02-12-00313-CV, 2014 Tex. App. LEXIS 5268, 2014 WL 1999318, at *1 (Tex. App.—Fort Worth May 15, 2014, no pet.) (mem. op.); Benjamin v. Benjamin, No. 01-10-01003-CV, 2013 Tex. App. LEXIS 10580, 2013 WL 4507848, at *2 & n.2 (Tex. App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op.). Here, the divorce decree recites Tommy appeared in person and through his attorney of record, but “the clerk’s record does not demonstrate that [Tommy] requested a reporter’s record to be made or objected to the failure to record the proceeding.” Ngwu, 2019 Tex. App. LEXIS 6281, 2019 WL 3307913, at *2. “It is the appellant’s burden to present [*5] an appellate record that substantiates his arguments on appeal.” Id. “Without a record of the proceedings before the trial court, we cannot review [Tommy’s] complaint that the trial court lacked sufficient evidence to reach its ruling, and we must presume the reporter’s record would support the trial court’s judgment.” Id. Accordingly, Tommy’s first issue is overruled..” Brown v. Brown, No. 04-19-00221-CV, 2019 Tex. App. LEXIS 10696, at *4-5 (Tex. App.—San Antonio Dec. 11, 2019)

• You must raise your complaint in a timely fashion:

Notice: “In the instant case, Appellants filed their original [*18] answer on September 25, 2017. They did not file a motion to abate until January 8, 2018. Even assuming arguendo that a motion to abate filed more than three months after an answer is timely, Appellants’ motion to abate made no reference to the notice provisions of Section 209.006(a). See Tex. R. App. P. 33.1(a). Therefore, we conclude that Appellants waived the notice requirement of Section 209.006(a), if applicable.” Roddy v. Holly Lake Ranch Ass’n, No. 12-18-00261-CV, 2019 Tex. App. LEXIS 10710, at *17-18 (Tex. App.—Tyler Dec. 11, 2019) (footnotes omitted).

Then, several cases held that parties failed to preserve their complaints by virtue of failing to raise the complaint in the trial court.

All for now.  More next week.  Y’all take good care.

Yours, Steve Hayes (shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com)

Error Preservation in Texas Civil Cases, 12/9/2019

December 9, 2019

Dear All:

Things were a little slow on the error preservation front last week–never a bad thing.  But there were a couple of interesting cases, as reflected in this Table of Contents:

In the category of “your complaint must be timely,” this case about making a jury demand provides a warning that sometimes you have to reassert demands and complaints as your lawsuit changes–through the addition of new parties, for example:

Jury Trial

You have to set your motion for, and have, a hearing in order to preserve error about the trial court’s failure to actually rule on the motion

Motion to Vacate

The Blurbs

I’ve put this case about jury demand in the category of “your complaint must be timely”–this may not be a fair characterization, but this case provides a warning that, as lawsuits change, you may need to reassert complaints:

Jury Trial: “In its first issue, Alexander House asserts that the trial court erred in striking its jury demand because the jury waiver is limited to claims arising from the loan commitment with Arbor Mortgage and that it should have had a jury trial on its claims arising from its earlier letter of interest agreement with Arbor Funding. It also argues that it was entitled to a jury trial on its claims against Arbor Funding. The loan commitment agreement between Alexander House and Arbor Mortgage contains a New York choice-of-law provision and the following jury-waiver provision. . . .The trial court struck Alexander House’s jury demand on the motion of Arbor Mortgage before Alexander House added Arbor Funding as a defendant. After adding Arbor Funding as a defendant, Alexander House did not request a jury trial on its claims against Arbor Funding. By failing to request a jury trial on its claims against Arbor Funding, Alexander House has not preserved its complaint for appellate review as to Arbor Funding. See Tex. R. App. P. 33.1(a); see also Tex. R. Civ. P. 216(a) (providing that “[n]o jury trial shall be had in any civil [*7] suit, unless a written request for a jury trial is filed”).” Alexander House, Ltd. v. Arbor Commer. Mortg., LLC, No. 01-18-00470-CV, 2019 Tex. App. LEXIS 10511, at *6-7 (Tex. App.—Houston [1st Dist.] Dec. 5, 2019)

You have to set your motion for, and have, a hearing in order to preserve error about the trial court’s failure to actually rule on the motion:

Motion to Vacate: “Before we can address whether Cumberland and PSN met their burden to establish by clear and convincing evidence that the Virginia court lacked jurisdiction to enter the Consent Judgment, we first must address the effect of their failure to set the motion to vacate for a hearing. Because Cumberland and PSN [*9] had the burden to establish the exception to the full faith and credit requirement by clear and convincing evidence, requiring evidence to be heard by the trial court, they were required to obtain a hearing on their motion to vacate to preserve their complaint for appellate review. See 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.). Despite being advised that the motion was required to be set for a hearing and being advised regarding the procedure to follow, Cumberland and PSN never set the motion for a hearing. “[W]hen ‘a movant for new trial from a default judgment makes no effort to have [its] motion set for a hearing or otherwise to draw the trial court’s attention to [its] motion, and the movant allows the motion to be overruled by operation of law, the trial court does not abuse its discretion in permitting [its] motion to be overruled by operation of law.” R & G Transp., Inc. v. Fleetmatics, No. 01-14-00891-CV, 2016 Tex. App. LEXIS 624, 2016 WL 268553, at *2 (Tex. App.—Houston [1st Dist.] Jan. 21, 2016, no pet.) (mem. op.) (alterations in the original) (quoting James v. Comm’n for Lawyer Discipline, 310 S.W.3d 586, 593-94 (Tex. App.—Dallas 2010, no pet.)). “This is because when a motion for new trial requires the exercise of discretion, a trial court must be afforded the opportunity to exercise that discretion before a court of appeals may hold that it was abused.” Id.; see also Shamrock Roofing Supply, Inc. v. Mercantile Nat’l Bank at Dall., 703 S.W.2d 356, 358 (Tex. App.—Dallas 1985, no writ) (explaining “[t]rial judges have a heavy load of trials and contested motions,” [*10] “cannot be expected to examine sua sponte all papers filed in their courts,” and “must rely on counsel to see that motions are set for hearing”). Accordingly, because Cumberland and PSN failed to set their motion to vacate for a hearing, the trial court did not abuse its discretion in allowing the motion to be overruled by operation of law.” Cumberland Surgical Hosp. of San Antonio, LLC v. CCA Fin., LLC, No. 04-19-00354-CV, 2019 Tex. App. LEXIS 10449, at *8 (Tex. App.—San Antonio Dec. 4, 2019)

All for now. Y’all have a great week.

Yours,

Steve Hayes

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