Error Preservation in Texas Civil Cases, 11/30/2019

November 30, 2019

Dear All:

I hope everyone had a great Thanksgiving, and looks forward to a wonderful holiday season to come.

Table of Contents

A party does not need to raise some complaints in the trial court–perhaps to an untranslated document completely in a foreign language (or, at least, one does not have to get a ruling on an objection to such a document)

Evidence

Here is one where the complaining party did preserve its complaints about discovery in a motion for reconsideration in the trial court

Discovery

You have to bring your complaint to the trial court’s attention–just filing a motion which is never set for hearing does not get the job done

Evidence

You have to comply with the pertinent rules

Default Judgment

The record must show your complaint

The Blurbs

A party does not need to raise some complaints in the trial court–perhaps to an untranslated document completely in a foreign language (or, at least, one does not have to get a ruling on an objection to such a document):

Evidence: “One exception [to the preservation requirement that one must obtain a ruling on one’s complaint in the trial court], however, is the multi-page document that is entirely in Spanish. The Rules of Evidence provide a procedure for admitting documents in another language. See Tex.R.Evid. 1009 (setting out procedure for admitting translation of document in a foreign language). This Court does not act as a translator for litigants. See Texas Tech Univ. Health Science Ctr. v. Lozano, 570 S.W.3d 740, 747 (Tex.App.–El Paso 2018, pet. denied); Lacoma v. Canto, 236 S.W. 1013, 1014 (Tex.App.–El Paso 1922, no writ). This is a longstanding rule that should be of no surprise to litigants. See Sartor v. Bolinger, 59 Tex. 411, 413 (1883).” El Pescador Church, Inc. v. Ferrero, No. 08-18-00029-CV, 2019 Tex. App. LEXIS 10179, at *35 n.10 (Tex. App.—El Paso Nov. 25, 2019)

Here is one where the complaining party did preserve its complaints about discovery in a motion for reconsideration in the trial court:

Discovery: “In response to the mandamus petition, the Robbins Parties contend that Defy did not present any of the arguments it raises in the petition to the trial court and that [*9] Defy presented these arguments to the trial court for the first time in its motion for reconsideration. The Robbins Parties’ assertion is without merit. In that motion, Defy quoted its objections to request for production no. 17 and argued that (1) it does not have “the power” to produce the requested documents; (2) the lease contract at issue is with Defy; (3) Empower is not a party to the lawsuit; and (4) the documents are not relevant. Defy asked the trial court to reconsider its ruling and sustain its objections, which were based in part on relevance. In a written order, the trial court expressly overruled Defy’s objection to request for production no. 17. See Tex. R. App. P. 33.1(a) (providing that to preserve a complaint for appellate review, a party must present to the trial court a timely objection and obtain a ruling from the trial court). Defy reasserts in this mandamus proceeding that the tax returns are not relevant.” In re Defy Int’l, LLC, No. 14-19-00553-CV, 2019 Tex. App. LEXIS 10246, at *8-9 (Tex. App.—Houston [14th Dist.] Nov. 26, 2019)

You have to bring your complaint to the trial court’s attention–just filing a motion which is never set for hearing does not get the job done:

Evidence: “To preserve a complaint for appellate review, appellant, as the complaining party, must first make a timely request, objection, or motion that states the grounds for the ruling sought. See Tex. R. App. P. 33.1(a). Appellant must then obtain an adverse ruling from the trial court on his request, objection, or motion, or he must object to the trial court’s refusal to rule. Id. These rules express the general policy that an appellate court should not reverse a trial court on a matter never brought to the trial court’s attention. See Carranza v. State, 960 S.W.2d 76, 78-79 (Tex. Crim. App. 1998). Here, nothing in the record indicates that appellant made the trial court aware of his “Motion for Evidentiary Hearing,” that appellant obtained an adverse ruling on his motion, or that appellant objected [*16] to the trial court’s failure to rule on his motion. See Tex. R. App. P. 33.1(a); Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); see also Thompson v. State, Nos. 14-16-00413-CR, 14-16-00414-CR, 2018 Tex. App. LEXIS 7088, 2018 WL 4139038, at *2 (Tex. App.—Houston [14th Dist.] Aug. 30, 2018, pet. ref’d) (mem. op., not designated for publication) (“Because appellant never obtained an adverse ruling on his pro se motions, we conclude that he has not preserved his complaint for appellate review.”); Norris v. State, No. 10-16-00222-CR, 2017 Tex. App. LEXIS 4555, 2017 WL 2192871, at *2 (Tex. App.—Waco May 17, 2017, pet. ref’d) (mem. op., not designated for publication) (error not preserved where appellant’s motions never ruled on by trial court). Thus, any complaint related to the trial court’s failure to grant appellant’s “Motion for Evidentiary Hearing,” filed on April 2, 2018, is not preserved for our review. See Ex parte Alfaro, 378 S.W.3d at 679 (must preserve complaint appellant did not receive evidentiary hearing on application for writ of habeas corpus); Ex parte Luciw, 2009 Tex. App. LEXIS 9864, 2009 WL 5150018, at *3.” Ex parte Crotts, No. 01-18-00666-CR, 2019 Tex. App. LEXIS 10269, at *15-16 (Tex. App.—Houston [1st Dist.] Nov. 26, 2019)

You have to comply with the pertinent rules:

Default Judgment: “Charles filed her notice of appeal fourteen days after the trial court entered judgment. She, therefore, knew about the default judgment within the period for challenging it with a motion for new trial but did not file a motion for new trial. See Tex. R. Civ. P. 329b(a) (“A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.”); Tex. R. Civ. P. 324(b)(1) (a motion for new trial to complain on appeal of the failure to set aside a default judgment). Because Charles did not file a motion for new trial, she did not introduce any evidence extrinsic to the record to support her satisfaction of any of the Craddock factors. Consequently, we hold that Charles has waived appellate review of her complaint that the trial court’s default judgment should be set aside.” Charles v. Crown Asset Mgmt., No. 05-18-01139-CV, 2019 Tex. App. LEXIS 10300, at *4 (Tex. App.—Dallas Nov. 26, 2019)

The record must show your complaint:

Reporter’s Record: “However, [*5] DPS filed a regular appeal, not a restricted appeal. In Reyes v. Credit Based Asset Servicing & Securitization, a regular appeal in which a party was represented at a hearing, this court held, “a party has the burden of objecting to the court reporter’s failure to record the proceedings.” 190 S.W.3d 736, 740 (Tex. App.—San Antonio 2005, no pet.) (citing TEX. R. APP. P. 33.1). And, without a reporter’s record in a regular appeal, we will generally presume the evidence is sufficient to support the trial court’s order. See L.C.H., 80 S.W.3d at 691. On original submission, we applied the rules for regular appeals rather than restricted appeals, declined to conclude DPS was absent or not represented by other counsel at the hearing, and held DPS waived its complaint about the absence of a reporter’s record by failing to object in the trial court.” Ex parte V.T.C., No. 04-18-00455-CV, 2019 Tex. App. LEXIS 10315, at *4-5 (Tex. App.—San Antonio Nov. 27, 2019)

Then, an assortment of cases held that complaints were not preserved because they were not raised in the trial court.

All for now.  Y’all have a great week.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, 11/25/19

November 25, 2019

Dear All:

Before I forget, here’s wishing all of you a great, great Thanksgiving.

The weekend got away from me, but here are the error preservation decisions from last week:

Table of Contents

A party does not need to raise some complaints in the trial court–a legal sufficiency complaint related to a bench trial, for example

You can avoid waiving claims which you removed from an amended pleading after the trial court has ruled against you on those claims

Remember that, in administrative law proceedings, one must raise complaints in rehearing before the board/commission in order to pursue them further

One party preserved a complaint about the trial court withdrawing the case from the jury trial docket

You must comply with all the rules in order to preserve your complaint–meaning you have to introduce evidence and get a jury finding on an affirmative defense

The Blurbs

A party does not need to raise some complaints in the trial court–legal sufficiency related to a bench trial, for example:

Legal Sufficiency: “In her second issue, Mayon argues that Robertson made no attempt to show that the will was not revoked. We construe this as a challenge to the legal sufficiency of the evidence to support the trial court’s finding of fact that the 1991 will was not revoked by the decedent. Robertson argues that this issue is waived because it was not preserved in the trial court. Because the case was tried to the court, Mayon was not required to preserve error as to any sufficiency challenges. See Tex. R. App. P. 33.1(d);” In re Estate of Robertson, No. 01-18-00822-CV, 2019 Tex. App. LEXIS 10118, at *7 (Tex. App.—Houston [1st Dist.] Nov. 21, 2019)

Here is an example of how you can avoid waiving claims which you removed from an amended pleading after the trial court has ruled against you on those claims:

Pleading: “Before we address Priscilla’s issues challenging the probate court’s summary-judgment rulings, we must determine whether she waived error by filing amended pleadings abandoning some of her claims after the probate court granted summary judgment against her on those claims. The SK Defendants and the GPD Defendants both point out that after the trial court granted summary judgment on Priscilla’s claims for legal malpractice and breach of contract, she amended her pleadings to remove those claims. . . . But the supreme court has recognized “possible circumstances” that create an exception to this general rule: statements in the amended pleading indicating that the pleader intended to reserve her rights with respect to the omitted claims. See FKM P’Ship, 255 S.W.3d at 633 (citing Ortiz v. Collins, 203 S.W.3d 414, 421 n.4 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (reasoning that plaintiff who stated in his amended pleading that he did not waive and expressly reserved “his right to pursue or re-assert either in [the trial] court and/or on appeal” the causes of action previously dismissed by the trial court and not pleaded in the amended pleading did not abandon his previous claims)). If the pleading expressly indicates no intent to waive any rights associated with omitted causes of action, the pleader has not waived error regarding those claims. See Spellmann v. Love, 534 S.W.3d 685, 691 (Tex. App.—Corpus Christi—Edinburg 2017, pet. denied). Here, in her amended pleading omitting [*24] her breach-of-contract and legal-malpractice claims, Priscilla stated, “Claims and parties have been removed from this pleading based on dismissal orders signed by the Court so that the live pleading will reflect the current parties and issues and for no other purpose. No claims or rights that might exist are being wa[i]ved.” We conclude that this language clearly demonstrated Priscilla’s intent to not abandon her claims for breach of contract and legal malpractice. See Ortiz, 203 S.W.3d at 421 n.4. Accordingly, we hold that she has not waived any alleged error by the trial court regarding these causes of action, and we can thus reach the merits of the trial court’s summary-judgment rulings. See Spellmann, 534 S.W.3d at 691 (citing Ortiz, 203 S.W.3d at 421 n.4).” Estate of Stegall, No. 02-17-00410-CV, 2019 Tex. App. LEXIS 10126, at *22-24 (Tex. App.—Fort Worth Nov. 21, 2019)

Remember that, in administrative law proceedings, one must raise complaints in rehearing before the board/commission in order to pursue them further:

Administrative Law: “Initially, Bates and the Board contend that Nissan failed to preserve this point of error because it failed to specifically challenge the findings of fact relating to Bates’ sales performance after Nissan issued the notice of termination. We disagree.

In order to appeal from the Board’s decision, Nissan was required to file a motion for rehearing. Tex. Gov’t Code Ann. § 2001.145. The motion for rehearing had to “identify with particularity findings of fact or conclusions of law that are the subject of the complaint and any evidentiary or legal ruling claimed to be erroneous. The motion . . . also [had to] state the legal and factual basis for the claimed error.” Tex. Gov’t Code Ann. § 2001.146(g) (Supp.).

Here, Nissan’s motion for rehearing did not challenge the four findings of fact, but it did challenge the Board’s legal conclusion that it could consider Bates’ post-notice sales performance. The motion argued that the proposal for decision “incorrectly conclude[d] that all existing circumstances [under Section 2301.455(a)] include[d] all information available to the Board at the time it ma[de] it[s] decision.” The motion cited the appropriate pages from the ALJ’s proposal where the conclusion was [*39] made as well as supporting legal argument. Because Nissan is challenging a conclusion of law that was raised in its motion for rehearing, this point of error was preserved for our review.” Nissan N. Am., Inc. v. Tex. DMV, No. 06-19-00007-CV, 2019 Tex. App. LEXIS 10138, at *38-39 (Tex. App.—Texarkana Nov. 22, 2019)

Here is one case in which the court held that a party preserved a complaint about the trial court withdrawing the case from the jury trial docket:

Jury Trial: “Additionally, William did not waive his right to a jury trial by participating in the bench trial after the trial court impliedly overruled his objection to removal of the cause from the jury docket, and the record does not indicate that he otherwise knowingly waived his right to a jury trial. See Browning v. Holloway, 620 S.W.2d 611, 617 (Tex. App.—Dallas) (on motion for rehearing) (holding that plaintiffs did not waive right to jury trial by participating in non-jury hearing where plaintiffs objected to proceeding on grounds that they were denied right to jury trial), writ ref’d n.r.e., 626 S.W.2d 485 (Tex. 1981) (per curiam); Coleman v. Sadler, 608 S.W.2d 344, 346-47 (Tex. App.—Amarillo 1980, no writ) (holding that party did not waive right to jury trial by participating in bench trial after he received court’s ruling denying his demand for jury trial); see also Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014) (noting that waiver is “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right”). Also, William preserved his complaint by filing a written objection, beginning his argument at the final hearing by reiterating his objection, and filing a motion for new trial complaining about the issue. See Tex. R. App. P. 33.1 (providing how error is preserved for appellate review).” Brubaker v. Brubaker, No. 03-18-00273-CV, 2019 Tex. App. LEXIS 10062, at *9 (Tex. App.—Austin Nov. 21, 2019)

You must comply with all the rules in order to preserve your complaint–meaning you have to introduce evidence and get a jury finding on an affirmative defense:

Affirmative Defense: “The record shows that Allstate pleaded that it was entitled to an offset for PIP benefits it paid to Alfred, but during trial, Allstate offered no evidence showing that it had made any PIP payments, and there is no stipulation by the parties in the record regarding any PIP payments made by Allstate. The record [*5] does not show that Allstate requested jury questions or instructions on its offset defense or that Allstate objected to the omission of such an instruction from the court’s charge. Accordingly, we conclude that Allstate waived appellate review of its offset claim. See Brown, 601 S.W.2d at 936; Superior Broadcast Prods., 392 S.W.3d at 205. We overrule issue one.” Allstate Fire & Cas. Ins. Co. v. Alfred, No. 09-18-00357-CV, 2019 Tex. App. LEXIS 10112, at *4-5 (Tex. App.—Beaumont Nov. 21, 2019)

Several cases dealt with complaints which were not raised in the trial court and therefore not preserved.

All for now.  Y’all have a great Thanksgiving.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Appeals, 11/16/19

November 16, 2019

Dear All:

Hidey ho, beloved.

Table of Contents

We do not often find courts dealing with whether a complaint was sufficiently specific or not, but here is one which at least impliedly does

Arbitrary and Capricious Review

An order issued after the trial court’s plenary power expires is void for lack of subject matter jurisdiction–a complaint which can first be raised on appeal

Order

You have to comply with the pertinent rules

Findings

You must raise your complaint in a timely fashion

Pleading

You must make your complaint on the record

Bond

The Blurbs

We do not often find courts dealing with whether a complaint was sufficiently specific or not, but here is one which at least impliedly does:

Arbitrary and Capricious Review: “DRCP argues that the County did not preserve an arbitrary and capricious review because they did not argue this ground in their motion for rehearing or their briefing before the district court. See Tex. R. App. P. 33.1. However, the Texas Supreme Court has stated that “if an agency ‘does not follow the clear, unambiguous language of its own regulation, we reverse its action as arbitrary and capricious.'” Texas Indus. Energy Consumers v. CenterPoint Energy Hous. Elec., LLC, 324 S.W.3d 95, 104 (Tex. 2010) (quoting Rodriguez v. Service Lloyds Ins., 997 S.W.2d 248, 255 (Tex. 1999)). The County expressly argued in its motion for rehearing that TCEQ “fail[ed] to honor 30 TAC § 305.43(a).” And in its brief before the district court, the County argued that pursuant to Heritage “the plain meaning of the TCEQ’s definition of ‘operator’ is the entity responsible for its personal performance of causing the landfill to function,” and that under the proper legal standard, CRF is the operator. We conclude that this was a sufficiently stated legal basis to allow the agency to cure any error or defend the order regarding its alleged failure to comply with the language of its own regulations, and the County thereby preserved the issue for review. See Entergy Gulf States, Inc. v. Public Util. Comm’n, 173 S.W.3d 199, 210 (Tex. App.—Austin 2005, pet. denied) (“The motion for rehearing must be sufficiently definite to allow the agency to cure the error or defend the order. . . . To preserve the issue for review, the party must state in the motion for rehearing the particular issue the party asserts was error and the legal basis upon which the claim rests.” (citations omitted)).” Tex. Comm’n on Envtl. Quality v. Maverick Cty., No. 03-17-00785-CV, 2019 Tex. App. LEXIS 9981, at *29 n.17 (Tex. App.—Austin Nov. 15, 2019)

An order issued after the trial court’s plenary power expires is void for lack of subject matter jurisdiction–a complaint which can first be raised on appeal:

Order: “Marilyn contends that John failed to preserve his complaint for appellate review by neglecting to first present it in the trial court. The record reflects that John complained to Respondent that the 2018 letter ruling permitted Marilyn to relitigate a previously asserted claim, which had been denied and dismissed with prejudice. Even so, an order issued after the expiration of a trial court’s plenary power is void for lack of subject matter jurisdiction. Tex. Dep’t of Public Safety v. LaRoussi, 192 S.W.3d 637, 640 (Tex. App.—Tyler 2006, no pet.). “Subject-matter jurisdiction cannot be waived, and can be raised at any time.” Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008). Importantly, this Court is obligated to consider jurisdictional issues even when not raised by the parties. See City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (“Not only may a reviewing court assess jurisdiction for the first time on appeal, but all courts bear the affirmative obligation ‘to ascertain that subject matter jurisdiction exists regardless of whether the parties have questioned it'”).” In re Doggett, No. 12-19-00300-CV, 2019 Tex. App. LEXIS 9874, at *9 n.3 (Tex. App.—Tyler Nov. 13, 2019)

You have to comply with the pertinent rules:

Findings: “Appellants raise no point about the failure of the trial court to make findings of fact and conclusions of law. Further, the record contains no notice of past-due findings. See Tex. R. Civ. P. 297. Thus, any complaint about that failure is waived. See Ad Villarai, LLC v. Pak, 519 S.W.3d 132, 137 (Tex. 2017) (“We have held that a party waives its right to challenge a failure to file findings if it does not file a notice of past[-]due findings as rule 297 requires.”).” Martinez v. Cerberus SFR Holdings, L.P., No. 02-19-00076-CV, 2019 Tex. App. LEXIS 9965, at *3 n.1 (Tex. App.—Fort Worth Nov. 14, 2019)

You must raise your complaint in a timely fashion:

Pleading: “Concerning the detrimental reliance cause of action, Montes never asserted this cause of action in any of his petitions. Montes asserted detrimental reliance for the first time in his motion for new trial. Therefore, this cause of action was not properly presented or preserved. See Tex. R. App. P. 33.1.” Montes v. Overhead Door Corp., No. 13-19-00018-CV, 2019 Tex. App. LEXIS 9889, at *6 (Tex. App.—Corpus Christi Nov. 14, 2019)

You must make your complaint on the record:

Bond: “Here, in connection with her appeal, McCrary complied with the justice court’s order by filing a $500 cash bond as security for any costs and damages that might be adjudged against her. McCrary insists the county court at law erred by forfeiting the bond to the Rioses because their pleading sought only possession of the Property. Generally, a party must [*5] preserve an error for review by making, on the record, a timely request, objection, or motion to the trial court. Tex. R. App. P. 33.1(a)(1)(A). A claim that the judgment is not supported by the pleadings may not be raised for the first time on appeal. . . . We find no error in the award of the full amount of the bond to the Rioses because they were entitled to it as prevailing parties. SeeTex. R. Civ. P. 510.9 (b), 510.11; . . . Moreover, we have no basis to conclude McCrary preserved this error for review because we lack a reporter’s record or statements of facts; therefore, we presume the county court at law was awarding the full amount of the bond as damages.” McCrary v. Rios, No. 05-18-01395-CV, 2019 Tex. App. LEXIS 9884, at *4-5 (Tex. App.—Dallas Nov. 13, 2019)

Several other cases dealt with situations in which a party failed to make a complaint to the trial court.

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

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

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