Error Preservation in Texas Civil Cases, May 19, 2018

Here is another court which struggles when trying to determine whether something is an issue–which must be raised in the trial court–as opposed to an additional argument which supports an issue.  The Court concluded that it was dealing with an additional argument, as opposed to a newly raised issue:

Limitations: “In oral argument and a post-submission letter brief, AK responds that ART’s issue in the trial court and in its original appellate brief was limited to ART’s second argument whether Hughes should be extended or expanded to include transactional malpractice. Accordingly, AK argues ART’s first argument has been waived. The issue of the applicability of the Hughes tolling doctrine was presented to the trial court in ART’s response to AK’s summary judgment in general statements that encompass both its arguments as well as in specific statements articulating ART’s second argument. See Adams v. Starside Custom Builders, LLC, No. 16-0786, 2018 Tex. LEXIS 327, 2018 WL 1883075, at *5 n.2 (Tex. Apr. 20, 2018) (general argument that mentioned other terms in a statute not specifically argued to trial court preserved issue for appeal). On appeal, ART’s original brief primarily urged its second argument to extend the Hughes rule to include their claims. But ART made broad statements such as this summary of its appellate position regarding Hughes:

[ART] asserted below and assert here that the equitable tolling doctrine set forth in Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156-57 (Tex. 1991), applies to their claims in this case. If it does, then even the later-filed but more specific Second Amended Original Petition is timely to assert [ART’s] claims against AK relating to its advice in terminating the Clapper Transaction.

The Texas Supreme Court has held some claims such as Plaintiffs are covered by Hughes. Indeed, Hughes itself involved legal malpractice unrelated to a pending lawsuit. Some federal district courts have also applied Hughes to claims like those alleged here.

(Appellants’ Brief at 19). In its formal argument, ART contended,

Plaintiffs asserted, both in their Second Amended Petition . . . and in their response to AK’s Second Motion for Summary Judgment on Limitations . . . , that Hughes applied to toll limitations as to its claims arising from AK’s March 1999 advice and work concerning the termination of the Clapper Transaction. As a result, Plaintiffs [sic] Second Amended Petition, which alleged [*12] those claims with more specificity, was not barred by limitations.

(Id. at 32-33) (citations to record and appendix omitted). AK does not dispute that ART clearly asserted its first argument in its reply brief that the Hughes rule applies as it currently exists, without the need for extension. We cannot consider issues raised for the first time in a reply brief. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per curiam). But the distinction between issues and arguments is not always clear. See Adams, 2018 Tex. LEXIS 327, 2018 WL 1883075, at *5 (“[Appellant] was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.”) (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 in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”)). Because both of ART’s arguments contend Hughes applies or should apply to ART’s claims, we address them both.” Am. Realty Tr., Inc. v. Kurth, No. 05-16-01433-CV, 2018 Tex. App. LEXIS 3226, at *11-12 n.6 (App.—Dallas May 8, 2018)

Concerning a fact issued tried to the bench, one may raise a legal sufficiency challenge for the first time on appeal.

Attorney’s Fees/Legal Sufficiency: “The Dinkinses did not object to the attorney’s-fees award in the trial court.  Generally, to preserve a complaint for appellate review, a party must have presented its complaint to the trial court by timely request, objection, or motion with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). “Complaints regarding alleged error in awarding attorney’s fees are subject to this rule.” Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.-Houston [14th Dist.] 2015, no pet.). We interpret the Dinkinses’ contention that there was no legal basis for the attorney’s-fees award to mean that it lacked any statutory or contractual basis. Because the Dinkinses never objected to the attorney’s-fees award in the trial court, they did not preserve error as to this [*21] complaint. See id. But because the trial court determined the amount of attorney’s fees, the Dinkinses may still challenge the sufficiency of the evidence supporting the attorney’s-fees award because such a challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d); Gipson-Jelks, 468 S.W.3d at 604-05; see also Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, 2017 WL 4053943, at *3 (Tex. App.-Fort Worth Sept. 14, 2017, no pet.) (mem. op.).” Dinkins v. Calhoun, No. 02-17-00081-CV, 2018 Tex. App. LEXIS 3519, at *20-21 (App.-Fort Worth May 17, 2018)

When you timely raise your complaints on multiple occasions in the trial court, you will have preserved it:

Experts: “Hood argues DuPont failed to preserve some of its challenges to the input data by not objecting to the trial court. DuPont responds an objection was not required to preserve these issues. A review of the record, including DuPont’s pretrial motions to strike Stewart’s expert testimony, a hearing on the motion to strike, and its post-judgment motions challenging the sufficiency of the evidence on causation, reveals that DuPont challenged the reliability of the inputted data for (1) respirator use; (2) the amount of benzene in DuPont’s products; (3) benzene exposure when Hood was not painting; and (4) size of the vehicles being painted. Thus, we consider whether Stewart’s lifetime benzene exposure dose was unreliable based on the specific [*16] data inputted in ART for these categories.” E.I. du Pont de Nemours & Co. v. Hood, No. 05-16-00609-CV, 2018 Tex. App. LEXIS 3228, at *15-16 (App.—Dallas May 8, 2018)

Your complaint must be timely:

Disqualification: “We should “consider the length of time between the moment the conflict became apparent to the aggrieved party to the time the motion for disqualification is filed in determining whether the complaint was waived.” Wasserman v. Black, 910 S.W.2d 564, 568 (Tex. App.—Waco 1995, orig. proceeding). At the hearing on their motion for disqualification, Los Robles and Nors did not respond to Deadman’s waiver objection by attempting to explain their delay. In their response to the petition for writ of mandamus, Los Robles and Nors do not state when they first learned of a conflict, nor do they offer any explanation for why they waited until November 2017 to file their motion. Almost six months elapsed between the filing of the June 2017 Eighth Amended Petition and the November 2017 motion for disqualification, and Los Robles and Nors do not allege this petition was insufficient to put them on notice of the alleged conflict. EPIC Holdings, 985 S.W.2d at 52 (moving party satisfactorily explained delay). . . . Based on the unexplained delay in filing their motion for disqualification, we must conclude Los Robles and Nors waived their right to seek disqualification of Deadman as relators’ attorney.” In re Schmidt, No. 04-18-00077-CV, 2018 Tex. App. LEXIS 3241, at *10 (App.—San Antonio May 9, 2018)

Evidence: “In her brief, Mary relies on her motion for new trial to establish error. Mary attached some of her discovery responses to the motion to establish that Adam was on notice that the she intended to introduce evidence of her increased costs at trial. “While a motion for a new trial may preserve some errors, standing alone, it cannot preserve error related to the admission or exclusion of evidence.” Mandeville v. Mandeville, No. 01-15-00119-CV, 2015 Tex. App. LEXIS 12033, 2015 WL 7455436, at *5 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet.) (mem. op.) (citing Tex. R. Evid. 103; Tex. R. App. P. 33.1). It is not presented during trial, as required for [*5] an offer of proof. See Tex. R. Evid. 103(c) (requiring offer of proof to be presented at trial). And it does not satisfy the requirements of a formal bill of exception. See Tex. R. App. P. 33.2(c) (establishing procedure for filing bill of exception). Moreover, the discovery responses attached to Mary’s motion for new trial do not reasonably summarize the evidence of Mary’s increased costs in comparison to her net resources. In her response to interrogatories, Mary summarized her current monthly expenses. She did not, however, identify which of those expenses had increased or by what amount. Mary’s complaints about the trial court’s exclusion of her evidence concerning her increased costs have not been preserved for appeal. We overrule Mary’s first, second, and third issues.” Jacob v. Jacob, No. 01-16-00835-CV, 2018 Tex. App. LEXIS 3276, at *4-5 (App.—Houston [1st Dist.] May 10, 2018)

Improper Jury Argument: “The trial court ordered a new trial because Oiltanking made what the trial court deemed was an improper and prejudicial jury argument. In closing argument, Oiltanking argued, in part, that the evidence showed Stelly had a deteriorating orthopedic condition before and after the accident. Without objection, Oiltanking argued Stelly’s disregard of a doctor’s light duty restriction six weeks before the accident was “an accident waiting to happen[,]” that “instead of going on light duty, he fell[,]” and further argued that Stelly “shouldn’t have even been out there.”. . . .Generally, a complaint about an improper jury argument must be preserved by making an objection [*14] at the time the argument occurs, obtaining a ruling on the objection, and requesting an instruction that the jury disregard the improper remark. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). However, a complaint of incurable jury argument may be asserted and preserved in a motion for new trial. Tex. R. Civ. P. 324(b)(5). Because an instruction to disregard will typically cure any probable harm arising from an improper jury argument, to be incurable the argument must be so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” Goforth v. Alvey, 271 S.W.2d 404, 153 Tex. 449, 450-51 (Tex. 1954). “[I]ncurable argument is that which strikes at the very core of the judicial process.” Phillips, 288 S.W.3d at 883. When appropriate, a new trial may be ordered because “arguments that strike at the courts’ impartiality, equality, and fairness inflict damage beyond the parties and the individual case under consideration . . . [and] damage the judicial system itself by impairing the confidence which our citizens have in the system[.]” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008). Examples of incurable arguments include appeals to racial prejudice, extreme unsupported personal attacks on parties or witnesses, and unfounded accusations of manipulating a witness. Id. Oiltanking’s [*15] argument that Stelly was at fault for violating his doctor’s medical restrictions on the date of the accident neither appealed to racial or ethnic bias, nor perpetrated an extreme personal attack on Stelly or an unsupported inflammatory allegation of illegal or immoral conduct by Stelly or his counsel. Because the argument was not incurable, the trial court clearly abused its discretion by granting a new trial.In re Enter. Refined Prods. Co., LLC, No. 09-18-00069-CV, 2018 Tex. App. LEXIS 3503, at *13-15 (App.—Beaumont May 17, 2018)

You have to comply with other pertinent rules:

Evidence: “Castanon supports her argument [that the trial court erred in determining it did not have jurisdiction to protect her infant son against the child’s father] by citing an excerpt of the reporter’s record from the hearing on the protective order in which the trial court “declined” to consider evidence pertaining [*3] to the inclusion of the parties’ infant son on the protective order due to its determination that the question of whether the infant should be protected from his father should be considered by a court in the context of a SAPCR. That excerpt reads: . . . ‘Counsel: We are also going to be able to put on evidence to show that he tried to take the baby while she was in the hospital. I can —Court: I’m not going to do anything with the infant if he doesn’t pose any type of physical danger to the infant. You’re not alleging that, are you? Counsel: When he did try to take the child from the hospital, yes. Court: I’m not going to do that. That’s for a SAPCR. It’s not for a protective order. I don’t know how many times I have to say that. That’s my position. Counsel: We’re just also concerned about his gang affiliations, his family connections — Court: I’m not going to enter any order with regard to their infant. His infant. All right .’ Besides this exchange and a couple of brief narrations later in the hearing in [*4] which the trial court, unprompted, reiterates its decision on the matter without further explication or objection, there is nothing else in the record excerpt or any proceedings preceding it reflecting the trial court’s determination on the issue of whether the infant may be included in the protective order. On this limited record, we cannot conclude that the district court erred or abused its discretion in declining to include the infant in the protective order, even assuming it had jurisdiction to make that determination. And to the extent this exchange could be viewed as indicating Castanon’s desire to present evidence about the issue of appellee’s alleged danger to the infant, Castanon has not preserved error as to any exclusion of evidence, nor has she raised exclusion of evidence as an issue on appeal. See Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2) (offer of proof).” Castanon v. Gomez-Valles, No. 03-17-00751-CV, 2018 Tex. App. LEXIS 3366, at *2-4 (App.—Austin May 15, 2018)

You have to get a ruling from the trial court on your complaint–but there are times when that ruling can be implicit:

Plea to the Jurisdiction: “Appellee argues that on June 15, 2015, the trial court granted the MDCs’ Motion and Plea to Jurisdiction as to all claims under the Texas Tort Claims Act and as to all claims for damages, [*17] but otherwise denied the rest of the plea and motion. By virtue of that order, the Appellee argues that Smedley retained injunctive claims against the MDCs through “the Takings Clause and Section 11.086 of the Water Code[,]” and he states the trial court later also denied in all respects the motion for summary judgment filed by the MDCs. . . . section 51.014(a)(8) of the Texas Civil Practices and Remedies Code, to which the Appellants cite as the basis for this interlocutory appeal. This subsection allows an appeal from an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001[.]” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). . . . In order for a party to be entitled to an interlocutory appeal, section 51.014(a)(8) requires a grant or denial of a jurisdictional challenge. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Even in the absence of an explicit denial of a jurisdictional challenge, however, if a trial court rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack, it has implicitly denied the jurisdictional challenge. Thomas, 207 S.W.3d at 339-40. This implicit denial satisfies section 51.014(a)(8) and gives the court of appeals jurisdiction to consider an otherwise impermissible interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R. App. P. 33.1(a)(2)(A); Thomas, 207 S.W.3d at 340.” City of Magnolia v. Smedley, No. 09-15-00334-CV, 2018 Tex. App. LEXIS 3488, at *16-19 (App.—Beaumont May 17, 2018)

Modification: “In bringing forth its first issue for review, the Landlord asserts that Xerox did not prove the TPA amended the Lease as a matter of law. The trial court, however, issued no such ruling. On review of the record, we agree that Xerox sought and the trial court granted partial judgment on the narrow basis of the TPA as a separate contract. See City of San Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.—San Antonio 2001, no pet.) (recognizing that an appellate court may accept admissions made in the briefs as true). Because the trial court was not asked to do so, the trial court made no ruling on the alternative theory—whether the TPA amended the lease as a matter of law. Given the circumstances, we conclude we are not authorized to review Issue One’s broad argument, and three of its four sub-arguments, as these arguments assert Xerox failed to prove an alternative [*20] theory abandoned and not ruled on below. Tex.R.App.P. 33.1(a)(1) and (2) (as a prerequisite of appellate review, the record must show the trial court made a ruling). An appellate court is not authorized to reverse a trial court’s judgment in the absence of properly assigned error.” 1320/1390 Don Haskins, Ltd. v. Xerox Commer. Sols., LLC, No. 08-16-00027-CV, 2018 Tex. App. LEXIS 3268, at *19-20 (App.—El Paso May 9, 2018)

As always, many opinions held that a party failed to preserve error by failing to raise its complaint at all in the trial court.  I won’t burden you with those.

Hope that helps.  See you next time.


Steve Hayes (817/371-8759;


Error Preservation in Texas Civil Cases, May 8, 2018

May 8, 2018

Dear All:

Here is an interesting error preservation case involving the vexatious litigation code section of the Civil Practices and Remedies Code:

Vexatious Litigation: “Jones first argues that Anderson waived the opportunity to file a vexatious litigant motion because he filed the motion “more than two years after he was originally served with the other Defendants in 2014.” HN4 The time for filing a motion to have a person declared a vexatious litigant is prescribed by statute, and the proper construction of a statute is a question of law, which we review de novo. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Texas Civil Practice and Remedies Code section 11.051 states that “the defendant may, on or before the 90th day after the date the defendant files the original answer or makes a special appearance, move the court for an order: (1) determining that the plaintiff is a vexatious litigant; and (2) requiring the plaintiff to furnish security.” Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (West 2017). The record before us does not show that Anderson ever filed an answer or special appearance. His motion to have Jones declared a vexatious litigant appears to be the first document Anderson filed in this case. Indeed, Jones stated at the hearing on the motion that Anderson filed the vexatious-litigant motion “instead of filing an answer.” [*15] Jones cites no authority in support of her position that Anderson waited too long to file his motion. Although she points out that the Markel defendants filed a vexatious-litigant motion two years before Anderson did, the statute does not require a defendant to join a vexatious-litigant motion filed by another defendant. Because Anderson did not file his motion ninety or more days after filing an answer or a special appearance, we conclude that he did not waive the opportunity to move for a declaration that Jones is a vexatious litigant, and that his motion instead was timely filed.Jones v. Anderson, No. 14-16-00727-CV, 2018 Tex. App. LEXIS 3044, at *14-15 (App.—Houston [14th Dist.] May 1, 2018)

Your complaint in the trial court must be sufficiently specific to make the trial court aware of your complaint, and must comport with the complaint you make on appeal:

Insurance: In its second appellate issue, Texas Farmers contends . . . it is still entitled to a reversal of the judgment because the portion of the judgment awarding Clack 18% interest pursuant to section 542.060(a) of the Insurance Code is improper. Texas Farmers argues the award is improper because: (1) it is not supported by Clack’s pleadings; and (2) an 18% post judgment interest award as exemplary damages is permitted only on the amount of the underlying insurance claim, not treble damages, attorney’s fees, prejudgment interest, or court costs. In addition, at the conclusion of the argument relating to section 542.060(a), Texas Farmers asserts in a single sentence that, “The claim for exemplary damages is barred because exemplary damages are not permitted under the DTPA or Chapter 541 of the Texas Insurance Code [*9] .” It then states the award under section 542.060(a) was improper because “it compounded the 18% interest annually.” However, we find we need not reach any of these issues because they have not been preserved for our review. . . . Here, in its motion for new trial, Texas Farmers’ complaint regarding any award of exemplary damages is found in the section on meritorious defenses and states, in its entirety: “Even if [Clack’s] claims for exemplary damages are not barred for other reasons, which they are, [Texas Farmers] would show that [Clack] cannot recover said damages under the standards set forth in Chapter 41 of the Tex. Civ. Prac. & Rem. Code and based on protections afforded by the United States Constitution and the Texas Constitution, Defendant further asserts the limits and caps on punitive and exemplary damages as set forth in Chapter 41 of the Tex. Civ. Prac. & Rem. Code [*10] , including but not limited to the limits and caps set forth in Section 41.008 of the Tex. Civ. Prac. & Rem. Code.” There is no reference to exemplary damages as post judgment interest under section 542.060(a) of the Insurance Code or compounding of such interest, and there is no challenge to the award of exemplary damages under the DTPA or Chapter 541 of the Insurance Code. Rather, the only reference is to exemplary damages under Chapter 41 of the Texas Civil Practice and Remedies Code and the federal and state constitutions. The complaint raised by Texas Farmers in the trial court was not sufficiently specific to advise the trial court that Texas Farmers was challenging the portion of the judgment awarding 18% interest under section 542.060(a) of the Insurance Code or the award of exemplary damages under the DTPA or Chapter 541 of the Insurance Code, nor are such complaints apparent from the context. See Tex. R. App. P. 33.1(a)(1). Additionally, the complaints set out in the motion for new trial regarding exemplary damages do not comport with any of the complaints raised in this appeal. . . . Accordingly, Texas Farmers has failed to preserve any of the complaints set forth in its second issue for our review.” Tex. Farmers Ins. Co. v. Clack, No. 04-17-00348-CV, 2018 Tex. App. LEXIS 3068, at *8 (App.-San Antonio May 2, 2018)

The complaint you raise on appeal must be the complaint you raised below:

Declaratory Relief: “Even if all of Promotions’s declaratory claims were dismissed, or had never been asserted, appellants would still face claims and causes of action asserted by Promotions that would subsume the subjects of the requested declarations, yet seek greater relief—the coercive remedies of damages and injunctive relief—that implicate the same “exercise of the right of association” on which appellants’ TCPA motion is predicated. Further, appellants waived any TCPA challenge to these broader claims by failing to raise it through a timely motion. With those broader claims and causes of [*26] action remaining in the case regardless, determination of appellants’ entitlement to TCPA relief against the declaratory claims, claims concerning mere component or subsidiary issues subsumed within the broader claims and causes of action that cannot now be attacked under the TCPA, would resolve a mere legal abstraction having no impact on any interests protected by that statute—the hallmark of unconstitutional advisory opinion—or alternatively would have been rendered moot in the inception by the limited scope of appellants’ motion.” Craig v. Tejas Promotions, LLC, No. 03-16-00611-CV, 2018 Tex. App. LEXIS 3126, at *25-26 (App.—Austin May 3, 2018)

Interception of communications: “In issue five, M.F. contends the trial court abused its discretion “in determining that [J.F.] did not unlawfully intercept [M.F.]’s electronic communications. . . .Although M.F. argued in her brief in support of her amended motion that J.F. illegally intercepted M.F.’s electronic communications, the motion itself sought to disqualify J.F.’s attorney and made no allegations against J.F. M.F. has failed to demonstrate on appeal that she preserved error with respect to her allegations against J.F., and she has failed to show that the trial court made a ruling regarding her purported allegations specifically against J.F. The trial court’s ruling on the motion to disqualify opposing [*24] counsel dealt solely with J.F.’s counsel and did not address M.F.’s allegation that J.F. individually violated the law by intercepting M.F.’s text or email communications. See Tex. R. App. P. 33.1. We overrule issue five.” In the Interest of R.F., No. 09-16-00240-CV, 2018 Tex. App. LEXIS 3130, at *23-24 (App.-Beaumont May 3, 2018)

You have to comply with the pertinent rules:

Evidence: “Knoblauch did not actually offer anything into evidence at this point, not the packet in its entirety or any of the individual documents. He also did not establish any predicate for their admission. The exchange regarding the bench brief occurred at the beginning of the third [*10] day of trial testimony, but it was not until days later that Knoblauch offered any of the packet documents into evidence. At that time, Knoblauch offered the letter and then the attached affidavit as separate exhibits, and the trial court admitted both. As the trial court found in its findings of fact, however, at no point did Knoblauch offer into evidence the packet in its entirety or the proposed order itself or obtain a ruling excluding these items from evidence. Accordingly, Knoblauch did not preserve error regarding admission of these documents during trial.In the Interest of J.C.K., No. 14-17-00082-CV, 2018 Tex. App. LEXIS 3039, at *9 (App.-Houston [14th Dist.] May 1, 2018)

There were several cases in which courts held that parties did not preserve error because they did not raise the complaint in the trial court, but I won’t burden you with those here.

I hope this helps. Y’all take care.


Steve Hayes

Error Preservation in Texas Civil Cases, 4/28/18

April 28, 2018

Dear All:

The Supreme Court recently confirmed that a party “was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive” in order to preserve an issue, reminding us that “parties are free [on appeal] to construct new arguments in support of issues properly before the Court”:

Anti-SLAAP: “The court of appeals found that Adams failed to preserve arguments based on community or environmental well-being by failing to raise them in the trial court. S.W.3d at n.4, 2016 Tex. App. LEXIS 6840. We are not convinced that Adams failed to argue community and environmental well-being in the trial court, as he expressly mentioned these concerns at the hearing on the motion to dismiss. Further, the court of appeals imposed too strict a view of error preservation in this context. Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case. Adams raised as an issue in 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 a matter of public concern. 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. See Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”);” Adams v. Starside Custom Builders, LLC, No. 16-0786, 2018 Tex. LEXIS 327, at *14-15 (Apr. 20, 2018)

In light of the Supreme Court’s recent Menchada decision, with its several competing opinions about conflicting jury answers, the following courts’ of appeals decision that a party preserved an objection to conflicting jury answers bear noting–as does one court’s holding that the objecting party did not preserve its complaint about the trial court not giving the parties enough time to object to the verdict:

Conflicting Jury Answers: “We first consider Rios’s threshold argument that Burnett waived her first issue regarding the perceived irreconcilable conflict in the jury’s verdict by not objecting before the jury was discharged. . . . Burnett acknowledges that generally a party must raise an objection under Texas Rule of Civil Procedure 295 before the trial court accepts the verdict or the conflict in the jury’s answers is waived. See Tex. R. Civ. P. 295. According to Burnett, trial counsel promptly objected to the conflicting jury answers at the first opportunity. Burnett also contends that the appellate rules, such as preservation under rule 33.1, are to be liberally construed in favor of the right to appeal. The trial transcript contains the notation “(Jury released)” just before Burnett’s trial counsel informed the trial court that he “wanted to put an objection on the record” and objected [*8] to the entry of the verdict. However, the trial court did not announce on the record that the jury had been released until after Burnett had lodged her objection. The trial court also clearly indicated its awareness of the issue and that it anticipated Burnett’s filing “a post-verdict motion to that effect . . . if you care to do it.” Unlike in Cressman Tubular Products, Burnett filed such motion and expressly requested a new trial on the conflicting-findings issue, and the trial court denied Burnett’s motion. Cf. 322 S.W.3d at 462-63. Based on this record, we do not find waiver.” Burnett v. Rios, No. 14-17-00438-CV, 2018 Tex. App. LEXIS 2660, at *7-8 (App.—Houston [14th Dist.] Apr. 17, 2018)

Jury Verdict: “ In her second issue, Burnett argues that a new trial should be granted because the trial court preemptively accepted the verdict sua sponte without permitting objections and prematurely released the jury. Rios responds that Burnett also waived this issue. This time, we agree. The record does not reveal that Burnett objected to the trial court’s allegedly defective conduct either verbally at the time or in her written motion for new trial, or that the trial court expressly or implicitly ruled on her complaint. We conclude that this issue was not properly preserved. See Tex. R. App. P. 33.1(a);” Burnett v. Rios, No. 14-17-00438-CV, 2018 Tex. App. LEXIS 2660, at *16-17 (App.—Houston [14th Dist.] Apr. 17, 2018)

Conflicting Jury Answers: “Under his sole issue, Sauceda also asserts that the trial court erred in failing to ask the jury to resolve the alleged conflict in the findings that Sauceda was not entitled to damages for past physical pain and mental anguish and future physical pain and mental anguish, and the jury’s awarding Sauceda of $3,750 for medical expenses incurred in the past. Sauceda did not request that the trial court ask the jury to resolve conflicts in its findings before the jury was dismissed, so Sauceda did not preserve error on this complaint. See Tex. R. Civ. P. 295; Meek v. Onstad, 430 S.W.3d 601, 605-06 (Tex. App.-Houston [14th Dist.] 2014, no pet.); Cressman Tubular Products Corp. v. Kurt Wisemail Oil & Gas Ltd., 322 S.W.3d 453, 462 (Tex. App.-Houston [14th Dist.] 2010, pet. denied). Even if Sauceda [*10] had preserved error on this argument, we would conclude that the trial court did not err in failing to instruct the jury to resolve conflicts in the findings because the jury reasonably could have concluded that Sauceda was entitled to recover for his past medical expenses but did not have any pain warranting a damages award. See Enright, 330 S.W.3d at 402. We overrule Sauceda’s conflict-in-the-jury-findings issue.” Sauceda v. Hess, No. 14-16-00586-CV, 2018 Tex. App. LEXIS 2842, at *9 (App.—Houston [14th Dist.] Apr. 24, 2018)

In an oil and gas case, the Supreme Court also recently found a party preserved error through its arguments in the trial court:

Oil and Gas: “But without explaining why its reasoning would not also apply to the 28-Acre Tract, the court’s judgment awarded the trial court’s royalty allocations in the 28-Acre Tract instead of 1/4 to each party. Menser argues that the court of appeals erred by awarding her only a 3/32 royalty interest in the 28-Acre Tract, instead of a 1/4 royalty interest. The parties agree that the 28-Acre Tract is part of the 206 acres that the earlier deeds conveyed as the First Tract and that Menser conveyed to Johnson while reserving 1/2 one-half of the minerals, including one-half of the royalties she owned at the time. In the court of appeals, Menser argued that the Perrymans never requested an interest in the 28-Acre Tract in their motions for summary judgment and therefore the trial court’s judgment assigning [*40] them any interest in the tract was in error. The court of appeals held that Menser waived her argument by failing to raise it in the trial court. 494 S.W.3d at 750. Although the court of appeals agreed with Menser’s argument regarding the division of the royalty interests in the 178-Acre Tract-and modified the trial court’s judgment to reflect that-it did not modify the relative interests in the 28-Acre Tract. Id. at 752. On motion for rehearing and on motion for rehearing en banc, Menser argued that the court of appeals should modify its judgment to correct that mathematical error. The court denied the motions. In this Court, Menser reurges her rehearing arguments. We agree that, even if Menser waived her argument that the Perrymans owned no interest in the 28-Acre Tract, she did not waive her argument that the court of appeals should have reexamined the division of royalty interests in that tract. Menser consistently argued that the Perrymans’, Spartan’s, and Menser’s interests all stem from the land in Ben’s First Tract and that Duhig applied to estop Gary and Nancy from claiming more than they could convey to remedy their breach of warranty. Although we disagree that Duhig applies, we agree with Menser’s [*41] ultimate claim that the royalty interests are divided equally among the parties: Leasha, Gary and Nancy, and Menser each own a 1/4 royalty interest in both tracts, Spartan owns a 1/4 royalty interest in the 178-Acre Tract, and third parties (presumably, the Wrights) own a 1/4 royalty interest in the 28-Acre Tract.” Perryman v. Spartan Tex. Six Capital, No. 16-0804, 2018 Tex. LEXIS 350, at *39-41 (Apr. 27, 2018)

You can first raise some complaints on appeal–like legal insufficiency in a bench trial and lack of subject matter jurisdiction:

Legal Insufficiency: “By her third issue, Robinson argues that the evidence supporting the trial court’s award of attorney’s fees is legally insufficient. Appellees respond that Robinson did not preserve this complaint for appeal because she failed to raise the issue in her motion for new trial. But in a civil case tried without a jury, a complaint regarding the sufficiency of the evidence “may be made for the first time on appeal[.]” Tex. R. App. P. 33.1(d); . . . .”An argument that there was no evidence during a bench trial that attorney’s fees were reasonable is a sufficiency-of-the-evidence complaint that may be raised for the first time on appeal.” Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Robinson was not required to present her challenge regarding attorney’s fees to the trial court.” Robinson v. Ochoa, No. 13-16-00357-CV, 2018 Tex. App. LEXIS 2431, at *16-17 (App.—Corpus Christi Apr. 5, 2018)

Legal Insuffficiency: “In his fourth issue, Scott contends the trial court erred by awarding Michelle “costs incurred enforcing and collecting the judgment” when such costs “were not pleaded for or proven.” Specifically, Scott argues (1) the Motion “does not plead or pray for future costs, fees, and expenses, including attorney’s fees, to be incurred in future collections actions,” and (2) the trial court “entered a judgment for future costs, expenses, and fees despite the fact that no pleadings or evidence was [*15] offered in support of such an award.”. . . Texas Rule of Appellate Procedure 33.1(d) provides in part, “In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d). Therefore, we conclude Scott’s complaint of “no evidence” to support “future costs, fees, and expenses” was not “waived.”” Riley v. Riley, No. 05-17-00385-CV, 2018 Tex. App. LEXIS 2644, at *14-15 (App.—Dallas Apr. 16, 2018)

Subject matter jurisdiction: “Beyond its sole issue, though, Brownsville also challenges Rendon’s declaratory action. Brownsville did not contest this cause of action in its plea to the jurisdiction in the trial court or in its initial brief to this Court, but instead asserts for the first time in its reply brief that Rendon failed to exhaust administrative remedies for his declaratory claims. Ordinarily, an appellant must preserve error by presenting its complaint to the trial court in a timely, specific manner and obtaining a ruling thereon. See Tex. R. App. P. 33.1(a). Also, a party may not ordinarily present arguments for the first time in its reply brief. Cebcor Serv. Corp. v. Landscape Design & Constr., Inc., 270 S.W.3d 328, 334 (Tex. App.—Dallas 2008, no pet.); see Tex. R. App. P. 38.3; Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex. 1996). However, exhaustion of administrative remedies is an issue of subject matter jurisdiction. Clint, 487 S.W.3d at 558. Subject matter jurisdiction cannot be created by the parties’ consent or waiver, and parties may challenge subject matter jurisdiction for the first time on appeal. Id. Moreover, “we are obligated to review sua sponte issues affecting jurisdiction.” M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); see Rusk, 392 S.W.3d at 95 (approving review of sovereign immunity on interlocutory appeal from challenge of an expert report, even though no plea to the jurisdiction had been filed). Accordingly, we address Brownsville’s argument concerning Rendon’s declaratory claims.“ Brownsville Indep. Sch. Dist. v. Rendon, No. 13-17-00628-CV, 2018 Tex. App. LEXIS 2587, at *10-11 (App.—Corpus Christi Apr. 12, 2018)

When you adequately and timely assert your complaint, you have preserved it:

Attorney’s Fees: “Turoff contends that Milliken and Mulhall’s challenge to the award of attorney’s fees must fail because they stipulated in the trial court to the amount of Turoff’s reasonable and necessary attorney’s fees. In effect, Turoff maintains that the stipulation waived Milliken and Mulhall’s complaint about Turoff’s failure to segregate. We disagree. . . . [A] stipulation to the amount of reasonable and necessary attorney’s fees for Turoff’s case did not waive Milliken and Mulhall’s complaints about factors other than reasonableness and necessity that must be considered in awarding fees under the UDJA. . . .. The stipulation therefore did not waive Milliken and Mulhall’s complaint that the trial court erred in awarding the full amount of Turoff’s unsegregated attorney’s fees. Moreover, Milliken and Mulhall brought this problem to the trial court’s attention both before and after the stipulation. Before entering into the stipulation, Milliken and Mulhall used their cross-examination of Turoff’s counsel to highlight the failure to segregate attorney’s fees. After entering into the stipulation, Milliken and Mulhall complained in their response to Turoff’s motion for judgment that Turoff had failed to segregate attorney’s fees.” Milliken v. Turoff, No. 14-17-00282-CV, 2018 Tex. App. LEXIS 2652, at *6-8 (App.—Houston [14th Dist.] Apr. 17, 2018)

Expert: “At the outset, we address appellees’ contention appellants failed to preserve their challenge to Rich’s expert testimony because they did not re-urge their objection during Rich’s trial testimony. Appellants filed a motion to exclude Rich’s testimony prior to deposing him. The trial court denied the motion. Appellants then filed a motion to reconsider after deposing Rich. At the hearing, appellants referred to some of Rich’s deposition testimony in urging their objection, and appellees introduced Rich’s file into evidence. At the close of the hearing, the trial court announced it was not going to strike Rich, but would defer ruling, hear Rich’s testimony, and rule accordingly at the time of trial. At the outset of trial, appellants again requested the trial court to reconsider its ruling on the motion to exclude. In response, the trial court stated, “I’m going to overrule or deny your [*13] Motion for Reconsideration.” HN4 To preserve a complaint that expert evidence is unreliable, a party must object to the evidence before trial or when the evidence is offered. See Maritime Overseas Corp. v Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Because appellants raised their objection to Rich’s testifying as an expert both before trial and again at the outset of trial and the trial court denied their motion, we conclude they adequately preserved error for this appeal.” Baker v. Habeeb, No. 05-16-01209-CV, 2018 Tex. App. LEXIS 2721, at *12-13 (App.—Dallas Apr. 18, 2018)

Your objection must be timely:

Evidence: “To preserve a complaint about the admission of evidence for appeal, a party must make a timely and specific objection in the trial court. Tex. R. App. P. 33.1; Tex. R. Evid. 103. . . . During trial, the appellants did not object to any of questions about August’s criminal history. On appeal, the appellants contend that error was “properly preserved” by the motion in limine. A motion in limine does not preserve error on evidentiary rulings because it does not seek a ruling on admissibility.” . . . . When a trial court has denied a motion in limine, a party must object when the evidence is offered to preserve error for appellate review. . . . Because the appellants did not object at trial when August was questioned about his criminal history, we conclude that they did not preserve error as to the admission of evidence regarding his prior convictions. We overrule the third issue.” True Level Masonic Lodge #226, Inc. v. Most Worshipful Prince Hall Grand Lodge, No. 01-16-00339-CV, 2018 Tex. App. LEXIS 2360, at *16-17 (App.—Houston [1st Dist.] Apr. 3, 2018)

Evidence: “During its case-in-chief, Wilmington admitted three exhibits, with multiple subparts, in support of its foreclosure claim, and then rested without calling witnesses. When Wilmington offered its exhibits for admission, the McKeehans raised two objections: (1) that the business-records affidavit supporting the records contained a legal conclusion and (2) that the printouts of payoff and per diem print screens were hearsay. The trial court overruled these objections, to which the McKeehans’ counsel responded, “I think those are the only two that I have any issues with.” The trial court then admitted Exhibits 1, 2, and 3, along with all of their subparts. Wilmington then rested. The McKeehans then moved for a directed verdict, arguing that the Exhibit 1 should be excluded because Wilmington had not responded to their request for disclosure regarding how it had calculated the McKeehans’ default. However, the McKeehans did not raise non-disclosure as a reason for excluding Exhibit 1 at the time it was offered and admitted, thus the argument that it should have been disclosed is waived.” McKeehan v. Wilmington Sav. Fund Soc’y, FSB, No. 01-16-00534-CV, 2018 Tex. App. LEXIS 2601, at *6 (App.—Houston [1st Dist.] Apr. 12, 2018)

You must bring your complaint to the attention of the trial court, and obtain a ruling:

Continuance: “Although attached to Admal’s motion for continuance was a notarized “verification” that the facts contained in the motion were true and correct, neither the motion nor the verification contains a discussion of the evidence Admal needed a continuance to seek. In addition, nothing in the record shows Admal brought his motion for continuance to the attention of the trial court. The mere filing of the motion does not show that it was presented to the court. See Smith v. El Paso Veterans Transitional Living Ctr., No. 08-17-00181-CV, 2018 Tex. App. LEXIS 2019, 2018 WL 1407087, at *1 (Tex. App.—El Paso Mar. 21, 2018, no pet. h.). There is also nothing in the record to show the court ruled on the motion. Admal has failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a).” Admal v. Ventures Tr. 2013 I-H-R, No. 05-16-00912-CV, 2018 Tex. App. LEXIS 2621, at *4 (App.—Dallas Apr. 12, 2018)

Restraining Order: “In her third issue, Pedroza contends that the County Court failed to consider or act on her motion for a restraining order against Tenet based on Tenet’s alleged violation of a consent order issued by the Consumer Financial Protection Bureau. In order to preserve a complaint for appellate review, the record must show that the party brought the complaint to the attention of the trial court [*7] by making a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion. See Tex.R.App.P. 33.1(a). Merely filing a motion with the trial court clerk is insufficient to show that the party brought the motion to the trial court’s attention or requested a ruling. In re Davidson, 153 S.W.3d 490, 491 (Tex.App.–Amarillo 2004, orig. proceeding). There is nothing in the record to show that Pedroza ever presented this motion to the County Court or requested a ruling. Consequently, she has failed to preserve error. Issue Three is overruled.” Pedroza v. Tenet Healthcare Corp., No. 08-16-00221-CV, 2018 Tex. App. LEXIS 2540, at *6-7 (App.—El Paso Apr. 11, 2018)

Your objection must be sufficiently specific:

Evidence: “In this case, the objection Father raised at trial to Caseworker One’s testimony asked that all of her testimony be stricken, and he did not limit his request to that testimony relevant to the Department’s alleged failure to comply with the obligations the Department owed Father to comply with his requests for discovery. Generally, if some portion of the evidence to which an objection is made is admissible, a trial court may overrule an objection that is directed at the evidence as a whole when the party opposing its admission fails to specify those portions of the evidence that are inadmissible. See Tex. R. App. P. 33.1(a)(1)(A) (Error Preservation) (explaining to preserve error an objection must be sufficiently specific to inform the trial court of the complaint); . . . . Even if we assume that Father was entitled to have some portion of Caseworker One’s testimony excluded due to the Department failure to fully and properly respond to Father’s discovery, the trial court was not required to grant the request that Father’s attorney made to strike all of Caseworker One’s testimony. . . . Portions of Caseworker One’s testimony that did not depend on the information the Department failed to disclose were clearly admissible. For example, Caseworker One’s testimony that she explained the requirements of the family service plan to Father is testimony that was both relevant and admissible during the trial. See Tex. R. Evid. 401, 402. Because the trial court properly overruled Father’s request to strike Caseworker One’s testimony in its entirety, the trial court did not abuse its discretion when it overruled Father’s request. Therefore, we overrule issue six.” In the Interest of B.A.M., No. 09-17-00390-CV, 2018 Tex. App. LEXIS 2451, at *31-32 (App.—Beaumont Apr. 5, 2018)

You must comply with other pertinent rules:

Evidence: “Williams sought to introduce, and appellees sought to exclude, the entire investigative report of the DOL. The trial court admitted the report with the exception of the DOL’s conclusions. To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. . . . Thus, when 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. Tex. R. Evid. 103(a),(b); . . . . An offer of proof preserves error for appeal if: (1) it is made before the court, the court reporter, and opposing counsel, outside the presence of the jury; (2) it is preserved in the reporter’s record; [*6] and (3) it is made before the charge is read to the jury. . . .When no offer of proof is made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exception. . . . A formal bill of exception must be presented to the trial court for its approval, and, if the parties agree to the contents of the bill, the trial court must sign the bill and file it with the trial court clerk. Tex. R. App. P. 33.2(c); . . .Failure to demonstrate the substance of the excluded evidence results in waiver. Tex. R. App. P. 33.1(a)(1)(B); . . . . In this case, Williams did not make an offer of proof or bill of exception regarding the excluded evidence. Therefore, Williams did not assure the DOL report was included in the trial record itself, although it was attached to an earlier response to a motion for summary judgment and was discussed outside the presence of the jury during the trial. In all events, we need not decide whether Williams preserved his complaint concerning the DOL report and potentially create new law on the issue of error preservation, because Williams has failed to demonstrate that any error in excluding the DOL’s conclusion would have been harmful.” Williams v. FlexFrac Transp., LLC, No. 05-16-01032-CV, 2018 Tex. App. LEXIS 2825, at *5-6 (App.—Dallas Apr. 20, 2018)

Evidence: “Dimock next asserts that the trial court committed reversible error by refusing to allow Dimock to make an offer of proof at trial. At trial, Dimock sought to re-offer evidence which was previously submitted for consideration as to the summary judgment orders. Dimock’s counsel stated that the offer of proof also included additional evidence which had been produced or discovered after the summary judgments were entered. He stated, “We just want to recite those to you so that you have an opportunity to reconsider your rulings, reopen the evidence and allow a trial on that.” [*36] Sutherland objected to the presentment of additional evidence. The trial court denied Dimock’s request. An offer of proof serves to preserve errors in excluding evidence. Tex. R. Evid. 103. Dimock did not identify what evidence, if any, had been erroneously excluded by the trial court.” Dimock Operating Co. v. Sutherland Energy Co., LLC, No. 07-16-00230-CV, 2018 Tex. App. LEXIS 2865, at *35-36 (App.—Amarillo Apr. 24, 2018)

Factual Sufficiency: “The Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting a complaint on appeal regarding the factual sufficiency [*3] of the evidence supporting a jury finding. . . . Because Mother has not preserved a factual sufficiency challenge to the jury’s verdict, we overrule her sole point of error on appeal.” In the Interest of E.J.Z., No. 06-17-00109-CV, 2018 Tex. App. LEXIS 2391, at *2-3 (App.—Texarkana Apr. 4, 2018)

Summary Judgment: “As a preliminary matter, we must first set the parameters of what is presently before us to review. Newfield argues in its briefing that Martin waived any arguments on appeal that: (1) the duty to protect the non-unitized Martin Leases acres from drainage was triggered when the Martin Unit well was drilled in 2008, or (2) the lease clause quoted above is ambiguous, because neither argument was made to the trial court. We agree. Issues a non-movant 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. [*8] McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). Our review of Martin’s response to Newfield’s motions for summary judgment show that Martin focused their arguments on whether Newfield’s duty to protect against drainage was triggered when Newfield began drilling the Simmons Unit, not the Martin Unit. Furthermore, nothing in Martin’s response asserts that the clauses at issue were ambiguous. Accordingly, without regard to their merits, we conclude that those arguments are waived, and we will not consider them on appeal. See id.” Martin v. Newfield Expl. Co., No. 13-17-00104-CV, 2018 Tex. App. LEXIS 2435, at *7-8 (App.—Corpus Christi Apr. 5, 2018)

I hope this helps. Y’all take care.


Steve Hayes

Recent Texas Supreme Court Error Preservation Decisions, 4/20/18

April 20, 2018

Dear All:

Conflicting jury answers, illegality, subpoenas, and damage experts–Oh, my!

The Supreme Court issued several error preservation decisions last week, so I thought I would dedicate this post to those.

So what about preserving a complaint about those conflicting jury answers?

If you want my two cents worth, I would say to continue objecting to conflicting jury answers before the trial court dismisses the jury, and get the trial judge to have the jury continue deliberating. Tex. R. Civ. P. 295. And even though Rule 324 does not list conflicting jury answers as one of the complaints for which a motion for new trial is required, I believe I would still complain about such conflicting answers in some kind of motion for new trial or judgment modification, just because. And the recent multiple, competing, non-majority opinions in Lloyds v. Menchaca are why I say that.

The Supreme Court issued its opinions on rehearing in USAA Tex. Lloyds Co. v. Menchaca a little over a year after its initial opinion in that case. That initial opinion was unanimous, save for Justice Johnson, who did not participate. Like its original opinion, the opinions on rehearing in Menchaca dealt with an insured’s claims against her homeowner’s insurance company concerning damage to her home from Hurricane Ike. USAA Tex. Lloyds Co. v. Menchaca, No. 14-0721, __ WL ___, 2018 Tex. LEXIS 313, *4 (Apr. 13, 2018). Justice Boyd’s opinion, which announced the Court’s judgment, talked about “the clarification we provide today,” and “the benefit of the guidance we have provided today regarding the preservation of such error.” Menchaca,*49, *83. Those statements must have survived artifacts from an earlier draft of the opinion, because it’s hard to see how much error preservation clarification or guidance comes from three competing opinions, none of which drew a majority concerning certain error preservation issues, and which two Justices were not part of. If anything, this case shows the need for revising Rule 295, which governs the correction of verdicts, and particularly incomplete, nonresponsive, and conflicting jury answers.

The error preservation issue here dealt with conflicting jury answers:

  •  The jury answered “No” when asked if the insurance company “failed ‘to comply with the terms of the insurance policy with respect to the [plaintiff’s] claim for damages.’” Menchaca, at *5.
  • But the jury also found that the insurance company engaged in various unfair or deceptive practices, including refusing to pay a claim without conducting a reasonable investigation with respect to that claim; the jury also found the damages for that statutory violation. The trial court instructed the jury that the damages were “the difference, if any, between the amount [the insurance company] should have paid . . . and the amount that was actually paid.” Menchaca, *5.

All justices who wrote or joined opinions in Menchaca did agree on some error preservation aspects about these conflicting answers. For example, Justice Boyd, in the part of his opinion joined by all Justices but Justice Johnson (who did not participate) and Justice Blacklock (who concurred in the judgment but did not join with any opinion), held that the Court “unanimously reaffirm[ed]” the holding “in our first opinion that the trial court erred in this case by disregarding the jury’s answer to Question 1, in which the jury failed to find that the insurer failed to comply with its obligations under the policy.” Menchaca, *2. Chief Justice Hecht pointed out, in his concurring opinion, that the “Court [also] unanimously disagrees” with the parties’ contentions that the jury answers did not conflict. Menchaca, *83-84.

But what’s where things start to unravel, from a standpoint of how and when a party preserves error concerning conflicting jury answers, and which party must do so. Four Justices–Justice Boyd, joined by Chief Justice Hecht, Justice Lehrmann, and Justice Devine–held that the irreconcilable conflict in the jury answers was fatal. These four Justices reached that conclusion because the jury answer about compliance with the policy, standing alone, would require a judgment in favor of the insurance company, while the answers to the statutory violation and damage question, without the policy compliance question, would require a judgment in favor of plaintiff. Menchaca, *61-62.

Stating that “neither party has objected to the conflict” in the jury answers, Justices Boyd, Lehrmann, and Devine, without Chief Justice Hecht, provided a lengthy historical discussion about whether conflicting jury answers constituted fundamental error; they concluded that “the fatal conflict in the jury’s verdict in this case does not constitute fundamental error, and as a result, we cannot consider that conflict unless the error was properly preserved.” Menchaca, *61, 69. After another lengthy discussion of Rule 295, those three Justices also held that “to preserve error based on fatally conflicting jury answers, parties must raise that objection before the trial court discharges the jury.” Menchaca, *74. Finally, those three Justices held that, since the plaintiff’s failure to prevail on her contract claim did not automatically negate the findings on her statutory claim, “[w]e are thus left with a judgment based on fatally conflicting jury answers, but since neither party preserved that error, we cannot consider the conflict as a basis for reversing the trial court’s judgment.” Menchaca, *80. Instead of rendering judgment for the plaintiff, though, the Boyd-Lehrmann-Devine Triumvirate remanded the case to the trial court for a new trial in the interest of justice, “[i]n light of the parties’ obvious and understandable confusion over our relevant precedent and the effect of that confusion on their arguments in this case, as well as our clarification of the requirements to preserve error based on conflicting jury answers.” Menchaca, *81-82.

Chief Justice Hecht, in his solo concurrence, disagreed that an objection to the conflicting jury answers here was necessary “for the reasons given by Justice Green in his dissent,” but agreed with the remand and retrial because “a retrial is the only way to correct the trial court’s error” in rendering judgment on fatally conflicting jury answers. Menchaca, *84-85.

Justice Green, in a dissent joined by Justices Guzman and Brown, on the other hand, would render judgment for the insurance company because the plaintiff failed to obtain an affirmative finding on her contract claim, which was “requisite . . . to recover policy benefits for a violation of the Texas Insurance Code.” Menchaca, *86. Joined by Chief Justice Hecht, Justice Guzman, and Justice Brown–a plurality, as Justice Green pointed out–Justice Green pointed out that while “a party should object to conflicting answers before the trial court dismisses the jury,” the “absence of such an objection . . . should not prohibit us from reaching the issue of irreconcilable conflicts in jury findings.”. Menchaca, *95-96. Justice Green reached this conclusion based on Rule 295 saying that “‘[i]f [a] purported verdict is defective, the court may” but is not required to “direct it to be reformed,’” and both the Rule and the Rule Commentary “simply mandates written instructions in the event that the court decides to have the jury deliberate further to reform the verdict.” Menchaca, *96.

Justice Green also pointed out that plaintiff’s counsel “raised the possibility of conflicting answers before the jury was dismissed, attempting to argue that any conflicts would not be irreconcilable,” but discussions with the trial court showed that “the trial court and both parties were satisfied that further deliberations were unnecessary.” Menchaca, *101-102. Put another way, the Green plurality noted that “the trial court here practically invited the parties to object before the jury was dismissed . . . . Despite Menchaca’s counsel noting a conflict in the jury’s answers, neither party objected because they each believed they had won . . . [T]hat should not prevent us from considering whether the verdict can support a judgment in the plaintiff’s favor.” Menchaca, *107. “Under these circumstances,” the Green plurality “would hold that the appellate court is not prohibited from considering whether a judgment on the verdict can stand.” Menchaca, *102. Justice Green also noted:

Although I do not believe our preservation requirements prevent us from ruling in USAA’s favor or even from considering the issue of conflicting jury answers in this case, I do believe that USAA’s post-verdict motions [a motion for judgment, and a subsequent motion to alter or amend the judgment and motion for new trial] were sufficient “to bring this question [of conflicting answers] to the trial court’s attention” and thus preserved error.

Menchaca, *105. Justices Green, Guzman, and Brown would render a take nothing judgment for the insurance company defendant.

Here is a link to table I put together to try to correlate the various holdings.  180420 I hope this is easier for you to parse through than it was for me.

A contract’s illegality is an affirmative defense which must be raised in the trial court–not an impediment to a party’s standing, which is jurisdictional and can be raised at any time.

In another recent opinion, the Supreme Court held that “illegality [of a contract] is an affirmative defense to a claim [which “forecloses its enforcement regardless of whether it has been blessed by an arbitrator’], not an impediment to a party’s standing to assert it. Tex. R. Civ. P. 94.” Jefferson Cty. v. Jefferson Cty. Constables Ass’n, No. 16-0498, 2018 Tex. LEXIS 314, at *9-10 (Apr. 13, 2018). As an affirmative defense, the Court held that illegality must be raised in the trial court. Id., at *12. Having said that, the Court went ahead and addressed the illegality of the contract because “ both parties have fully briefed and argued the merits of the issue here. Further, the Constables Association does not ask us to resolve the question on waiver grounds and concedes that its general collective bargaining rights depend on the deputy constables’ status as police officers under the Act. For these reasons, and because the issue is of continuing importance to our jurisprudence, we will address it.” Id., at *12. Justice Boyd, joined by Justice Johnson, dissented on other grounds. Jefferson Cty, at *30-31.

You’ve not waived a complaint about the new subpoena because you didn’t object to its withdrawn predecessor.

A failure to object to an initial subpoena, which is cancelled and then reissued, does not waive an objection to the reissued subpoena. In re Garza, No. 17-0395, 2018 Tex. LEXIS 315, at *11-12 (Apr. 13, 2018)

The Court provided an example of successfully preserving a complaint about the opinion of a damage expert which was based on an unenforceable oral agreement.

In Hill v. Shamoun & Norman, the Court held that a “motion for directed verdict and renewed motion for directed verdict” which “argued . . . that S&N’s only damages evidence was the oral agreement and the statute of frauds bars recovery based on the oral agreement” preserves a “legal sufficiency challenge” such as the one here, to wit: “that the value of the alleged unenforceable oral contingent-fee agreement between Hill and Shamoun cannot be given any legal weight, thus prohibiting consideration of Sayles’s expert opinion, which relied on the terms of that agreement.” Hill v. Shamoun & Norman, LLP, No. 16-0107, 2018 Tex. LEXIS 309, at *25 n.7 (Apr. 13, 2018)

I’ll put recent error preservation decisions from the court of appeals in another blog post.  As always, I hope this helps.

Yours, Steve Hayes

Error Preservation in Texas Civil Cases, March 31, 2018

March 31, 2018

Dear All:

The Supreme Court weighed in on error preservation recently in a summary judgment context in a back-handed kind of way, holding that the failure of a summary judgment movant to attach deeds to its motion “was not error at all,” because 166a(c)  “require[s] a trial court to grant a summary-judgment motion if the evidence ‘on file at the time of the hearing, . . . ” establishes that the movant is ‘entitled to judgment as a matter of law,'” and the pertinent deeds were on file.  Here, the deeds had previously been admitted in evidence at a temporary injunction hearing[and were clearly filed with the clerk that same day], the motion “expressly ‘referenced and specified’ the injunction-hearing transcript and exhibits ‘as evidence in support of’ the motion,” at the “summary-judgment hearing, the trial court judge had the temporary-injunction transcript-including the deeds and other exhibits-in front of him, reviewed the deeds, and discussed them with counsel, including [non-movant’s] counsel, who never . . . objected on the ground that the [movants’ had not re-filed the deed as attachments to their summary judgment motion.”  Lance v. Judith & Terry, No. 16-0323, 2018 Tex. LEXIS 246, at *15-18 (Mar. 23, 2018)

The following case which has a compilation of many examples of formal deficiencies of affidavits–which you have to object to in the trial court–and substantive objections, which you can raise for the first time on appeal:

  • Affidavit: “Generally, to preserve an objection [*14]  for appellate review, the trial court must either make an express or implicit ruling. Tex. R. App. P. 33.1. However, in the context of affidavits, some defects may be raised for the first time on appeal. . . . Defects in affidavits fall into two categories: defects of substance and defects of form. . . . .  “A defect is substantive if the evidence is incompetent, and it is formal if the evidence is competent but inadmissible.” . . . . Objections to substantive defects are never waived, and they may be raised for the first time on appeal because incompetent evidence “cannot be considered under any circumstances.” . . . . UTHealth’s contentions that some statements in the affidavits were irrelevant, speculative, conclusory, or otherwise without factual support are objections to substantive defects. See Green, 1 S.W.3d at 130; McMahan, 108 S.W.3d at 498. UTHealth specifically challenged (1) the nurses’ statements that Riley was bullying and targeting people (conclusory), (2) a reference to nurse Marsha Urbina as “an older nurse” (relevance), (3) allegations in the nurses’ affidavits regarding Riley’s and Smith’s treatment of Sanders on April 15, 2014 (speculation and relevance to adverse employment action), (4) allegations in Perkins’s and Hartranft’s affidavits about Dr. Tyson’s investigation conducted on May 30, 2014 (conclusory), and [*17]  (5) allegations in the nurses’ affidavits regarding the June 12, 2014 firing of Perkins and Hartranft’s July 9, 2014 resignation (relevance to Carver’s case).”  UT Health Sci. Ctr.-Houston v. Carver, No. 01-16-01010-CV, 2018 Tex. App. LEXIS 2161, at *13-17 (App.—Houston [1st Dist.] Mar. 27, 2018)

You don’t waive your right to challenge a severance by failing to file a motion to transfer venue:

  • Severance:  “Moreover, Johnson’s motion addresses his complaints about the trial court’s severance orders, and he did not ask the trial court to revisit its decision on venue. While Johnson failed to file a timely motion to transfer,  nothing in Rule 86, which provides that an objection to improper venue is waived if not made by written motion, states that a party also waives all complaints regarding an improper severance. See Tex. R. Civ. P. 86.”  In re Johnson, No. 09-18-00064-CV, 2018 Tex. App. LEXIS 2048, at *14-15 (App.-Beaumont Mar. 22, 2018)

There are some things you can raise for the first time on appeal—such as the fact that the court of appeals cannot affirm a summary judgment on a ground not raised in the motion for summary judgment:

  • Summary Judgment:  “A summary-judgment movant may try an issue raised in the nonmovant’s response by consent and thus waive the movant’s objection that the nonmovant was required to raise the issue in the nonmovant’s pleading as well as in its summary-judgment response. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam). But, a non-movant’s failure to object to the movant raising an argument somewhere other than in the summary-judgment motion does not allow an appellate court to affirm the summary judgment based on that argument [*24]  if the movant failed to expressly present the argument in the summary-judgment motion. See Nat’l City Bank of Indiana, 401 S.W.3d at 882.  We may not affirm the trial court’s granting of the First Motion on the stranger-to-title ground because the Sandel Parties did not expressly present that ground in the First Motion. As discussed above, the trial court erred in granting the First Motion on each of the grounds the Sandel Parties expressly presented in the First Motion. Thus, we conclude the trial court erred in granting the First Motion and declaring that the Royalty Interest “is of no legal force nor effect, resulting in [Armour], its successors and assigns having no claim to any rights otherwise evidenced by [the Royalty].””  Armour Pipe Line Co. v. Sandel Energy, Inc., No. 14-16-00490-CV, 2018 Tex. App. LEXIS 2209, at *23-24 (App.—Houston [14th Dist.] Mar. 28, 2018)

For those of you who work on parental right termination cases, there are several courts which hold that the failure to appoint an attorney ad litem for the child can be raised for the first time  on appeal:

  • Attorney Ad Litem:  “Father did not object before the trial court regarding its failure to appoint an attorney ad litem or amicus attorney for the child. Our rules of appellate procedure require that, for error to be preserved for appellate review, the complaining party must have made an objection to the trial court and the trial court must have either ruled on the objection or refused to issue a ruling, and the complaining party objected to the refusal. SeeTex. R. App. P. 33.1. However, several courts have concluded that a trial court’s failure to appoint an attorney ad [*5]  litem or amicus attorney for a child in a private termination case may be raised for the first time on appeal. See In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.-Amarillo 2010, no pet.); Turner v. Lutz, 654 S.W.2d 57, 58 (Tex. App.-Austin 1983, no pet.); Arnold v. Caillier, 628 S.W.2d 468, 469 (Tex. App.-Beaumont 1981, no pet.); see also In re D.W., No. 04-05-00927-CV, 2006 Tex. App. LEXIS 7005, 2006 WL 2263907, at *1 (Tex. App.-San Antonio Aug. 9, 2006, no pet.) (Lopez, C.J., dissenting) (dissenting on other grounds, but recognizing that failure to appoint an ad litem for a child may be raised for the first time on appeal); 40A Tex. Jur. 3d Family Law § 1897 (noting that, despite preservation of error rules, a trial court’s failure to comply with Tex. Fam. Code. § 107.021(a-1) may be raised for the first time on appeal).  “Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit from the parent.” In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, we must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. Given the constitutional interests at stake in termination proceedings, the important role of amicus and ad litem attorneys in termination proceedings, and the mandatory nature of Section 107.021(a-1), we conclude a complaining party may raise a trial court’s failure to appoint an attorney ad litem or amicus attorney when required by Section 107.021(a-1) for the first time on appeal.”  In re D.M.O., No. 04-17-00290-CV, 2018 Tex. App. LEXIS 1992, at *4-5 (App.-San Antonio Mar. 21, 2018)

When your complaints on appeal comport with those you raise on appeal, you have preserved them:

  • Healthcare Liability:  “Mrs. Butler argues that Appellants’ only objection at the trial court level was to her fourth theory of liability, which is that Appellants improperly administered antipsychotic medications to Mr. Butler. Thus, Mrs. Butler argues that Appellants waived all complaints regarding her first three theories of liability, which are that Appellants (1) failed to ensure Mr. Butler remained well hydrated, (2) failed to ensure Mr. Butler was not over-sedated, and (3) improperly physically and chemically restrained Mr. Butler. A review of the record indicates that Appellants’ objections and arguments to the trial court sufficiently comport with the arguments they make on appeal, and we conclude that Mrs. Butler’s waiver argument is without merit. SeeTex. R. App. P. 33.1(a)(1)(A).”  Oceans Behavioral Healthcare of Longview v. Butler, No. 12-17-00297-CV, 2018 Tex. App. LEXIS 2017, at *2 n.1 (App.-Tyler Mar. 21, 2018)

You have to comply with the pertinent rules:

  • Continuance:  “In his first issue, Morris argues the trial court erred in denying his Request for Rescheduling.  Texas Rule of Civil Procedure 251 governs motions for continuance and provides that a motion shall not be granted except for sufficient cause supported by affidavit, consent of the parties, or by operation of law. Tex. R. Civ. P. 251; see In re A.M., 418 S.W.3d 830, 838 (Tex. App.—Dallas 2013, no pet.); Strong v. Strong, 350 S.W.3d 759, 762 (Tex. App.—Dallas 2011, pet. denied). Morris’s Request for Rescheduling was not supported by affidavit, Southern Journeys did not consent to a continuance, and Morris has not explained how a continuance was required by operation of law. Accordingly, Morris has failed to preserve any error from the trial court’s denial of his request. See In re A.M., 418 S.W.3d at 838; Strong, 350 S.W.3d at 762. We overrule his first issue.”  Morris v. S. Journeys of Tex., No. 05-17-00445-CV, 2018 Tex. App. LEXIS 2172, at *4 (App.—Dallas Mar. 27, 2018)
  • Evidence:  “By his third issue, Willmore contends that “[i]t was harmful error for the [j]udge to refuse to allow [him] to put on evidence of his reimbursement claim[.]” However, as with his first issue, Willmore has failed to provide us with a sufficient trial record demonstrating compliance with the steps listed above. See Ulogo, 177 S.W.3d at 502. Specifically, we have no record of the precise evidence Willmore sought to admit or what evidence was refused in regard to his reimbursement claim. See id. At trial, Willmore referenced a “CD” in regard to his reimbursement claim, but he failed to make an offer of proof or otherwise include this evidence in the appellate record. We conclude that Willmore failed to preserve his third issue for appellate review. See Tex. R. App. P. 33.1.”  Willmore v. Alcover, No. 13-16-00180-CV, 2018 Tex. App. LEXIS 2044, at *5 (App.-Corpus Christi Mar. 22, 2018)
  • Legal Sufficiency:  “Rule 324 of the Texas Rule of Civil Procedure requires a motion for new trial to preserve a complaint of factual sufficiency of the evidence to support a jury finding. Tex. R. Civ. P. 324(b)(2), (3). In a jury trial, a legal sufficiency issue must be preserved by filing one of the following in the trial court: a motion for instructed verdict; a motion for judgment notwithstanding the verdict; an objection to the submission of the question to the jury; a motion to disregard the jury’s answer to a vital fact question; or a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); In the Interest of T.L.P., No. 09-13-00220-CV, 2013 Tex. App. LEXIS 13513, 2013 WL 5874630, at *2-3 (Tex. App.-Beaumont Oct. 31, 2013, no pet.) (mem. op.). The record shows that Susan failed to file the required motions and objections to preserve her legal and factual sufficiency complaints. See Tex. R. Civ. P. 324(b)(2), (3);”  In re A.B., No. 09-17-00365-CV, 2018 Tex. App. LEXIS 2052, at *4 (App.-Beaumont Mar. 22, 2018)
  • Summary Judgment:  “Because the Rahmans did not file a written response or answer to Foster’s motion for summary judgment and have not raised a legal sufficiency argument on appeal, the Rahmans have presented nothing for this Court to review on appeal. SeeTex. R. Civ. P. 166a(c);”  Rahman v. Foster, No. 05-16-01042-CV, 2018 Tex. App. LEXIS 1966, at *6 (App.-Dallas Mar. 19, 2018)
  • Summary Judgment:  “And although Steven filed a motion for new trial, “a party who fails to expressly present to the trial court any written response in opposition to a motion for summary judgment waives the right to raise any arguments or issues post-judgment.” Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008); see Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (concluding party waived issue in opposition to summary judgment when the party asserted the issue for the first time in a motion for new trial). . . . With respect to one issue—issue six—Steven argues on appeal that: APPELLANT PRESERVED THE ISSUE OF NOT HAVING DEPOSITIONS AT SUMMARY JUDGMENT HEARING, WHEN THE TRIAL JUDGE STATED, [*4]  “YOU SAID THAT YOU HAD TWO INDIVIDUALS THAT YOU WISHED TO DEPOSE THAT WILL ESTABLISH YOUR CLAIM OF DEFAMATION. MY QUESTION IS: WHY DID YOU NOT TAKE THOSE DEPOSITIONS?” (RR: 5, 6, 7) THEREFORE, THE TRIAL COURT SHOULD HAVE ALLOWED MORE TIME TO GATHER DISCOVERY.  But reference to the trial court’s statement does not show that appellant “expressly presented” the issue regarding the absence of depositions to the trial court “by written motion, answer or other response[.]” As a result, it may not be considered on appeal as a ground for reversal. See Tex. R. Civ. P. 166a(c).”  Sims v. Sims, No. 05-16-00984-CV, 2018 Tex. App. LEXIS 2171, at *3-4 (App.—Dallas Mar. 27, 2018)

As usual, a whole slew of cases discussed issues which parties failed to raise at that trial court level, but I won’t burden you with those.

I hope this helps. Y’all take care.


Steve Hayes

Error Preservation in Texas Civil Cases, 3/17/18

March 17, 2018

Dear All:

This was sort of a light two weeks.  Perhaps chalk that up to Spring Break.

When you timely object to the evidence and get a ruling, you have preserved the objection you made:

  • Evidence: “Nugent and CAO, Inc. timely objected to the introduction of evidence of Nugent’s prior conviction. When the estate offered evidence of Nugent’s prior conviction at trial, appellants’ counsel immediately objected on the grounds that the conviction was “more than ten years old and cannot be used as evidence.” The trial court [*25] permitted the estate to admit evidence of Nugent’s 2004 conviction and to engage in limited questioning of witnesses on this issue. These actions adequately preserved the evidentiary issue for appeal. See Tex. R. App. P. 33.1;” Nugent v. Estate of Ellickson, No. 14-16-00839-CV, 2018 Tex. App. LEXIS 1735, at *24-25 (App.—Houston [14th Dist.] Mar. 8, 2018)
  • Dismissal for Want of Prosecution: “We first address A.J.’s Steel’s contention that mandamus relief should be denied because relators did not argue that the case should be dismissed due to “abandonment” to the trial court and that they raise this argument for the first time in this original proceeding. A.J.’s Steel thus argues that this argument for dismissal was not preserved. See generally Tex. R. App. P. 33.1; . . . .A.J.’s Steel contends that the trial court originally dismissed the case because its counsel failed to appear at the dismissal hearing and because the trial court [*16] accepted its argument that the absence was not intentional or the result of conscious indifference, therefore reinstating the case. We disagree with A.J.’s Steel’s view of the record. Relators repeatedly argued to the trial court that the case was “not disposed of within [the] time standards promulgated by the Supreme Court” and invoked the trial court’s inherent authority to dismiss the case. SeeTex. R. Civ. P. 165a(2); Villarreal, 994 S.W.2d at 630. Relators expressly made this argument on September 10, 2015 in their original motion to dismiss, on August 28, 2017 in their response to A.J.’s Steel’s motion to reconsider, and on October 11, 2017 in oral argument at the hearing on A.J.’s Steel’s motion to reconsider. In fact, the thrust of counsel for relators’ argument at the hearing was the failure to prosecute the case. Accordingly, our review of this matter is not limited to grounds for dismissal pertaining to A.J.’s Steel’s failure to appear at the dismissal hearing. SeeTex. R. Civ. P. 165a(1).” In re Trane U.S. Inc., No. 13-18-00008-CV, 2018 Tex. App. LEXIS 1682, at *15-16 (App.—Corpus Christi Mar. 6, 2018)

You have to comply with other pertinent rules:

  • Evidence: “In her second appellate issue, Debra asserts that the trial court erred in denying Debra’s request that the amicus attorney testify as a fact witness. An amicus attorney appointed to assist the court has various duties as provided for in Section 107.003 of the Texas Family Code. See Tex. Fam. Code Ann. § 107.003 (West Supp. 2017). However, section 107.007(a)(4) of the Texas Family Code provides that an amicus attorney is prohibited from testifying in court except as otherwise authorized by Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. Id. § 107.007(a)(4) (West 2014). We find nothing in the record before us indicating that the Rule 3.08 exception applies. At trial and on appeal, Debra did not argue that Rule 3.08 authorized the amicus attorney to testify in the present case, and Debra made no offer of proof at trial as to what she believed the amicus attorney would have testified to or how the trial court’s failure to call the amicus attorney to testify adversely affected her case. See Tex. Disciplinary Rules Prof’l Conduct R. 3.08, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013); Tex. R. App. P. 33.1.” Jackson v. Jackson, No. 09-16-00189-CV, 2018 Tex. App. LEXIS 1908, at *2 (App.—Beaumont Mar. 15, 2018)

Your complaint must be timely–and sometimes accompanied by a running objection or recurring objections:

  • Evidence: “Initially, we observe that J.H. failed to preserve error on the admission of this evidence. Although counsel objected when the Department first asked J.H. if he had been placed on deferred adjudication for aggravated sexual assault in 1999, counsel did not obtain a running objection or subsequently object when the Department later offered into evidence the documents pertaining to that offense, including a copy of the indictment, the 1999 judgment placing J.H. on deferred adjudication, and the 2001 judgment adjudicating guilt. Instead, counsel stated that he had “no objection” when the district court admitted the exhibit into evidence. Accordingly, the error, if any, in admitting this evidence was ultimately waived. n. 12 n. 12 See Tex. R. App. P. 33.1(a); Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235-36 (Tex. 2007); see also Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (“The general rule is error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection.”).”A. B. & J. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00658-CV, 2018 Tex. App. LEXIS 1790, at *8 n.12 (App.—Austin Mar. 9, 2018)
  • Jury Charge: “. . . before the jury charge was submitted, Mara asserted neither a due process complaint nor any complaint that Omar’s best interest should be decided by a separate question. Instead, these arguments were made for the first time in a motion for new trial. However, “an objection to a jury charge in a motion for new trial is untimely.” In re N.A.L., No. 04-13-00159-CV, 2013 WL 4500633, at *4 (Tex. App.—San Antonio Aug. 21, 2013, no pet.) (mem. op.) (citing Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 627-28 (Tex. App.—Dallas 2004, pet. denied)). Thus, “failure to raise a complaint at trial to a jury charge waives review of that complaint on appeal.” In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (citing Tex. R. App. P. 33.1; Tex. R. Civ. P. 274). Because Mara’s due process argument was not raised prior to the submission of the trial court’s charge, we cannot review it. See id. at 348-55 (reversing a court of appeals’ decision that the trial court’s broad form submission violated a parent’s due process right to have at least ten jurors agree on statutory grounds supporting termination because the matter was not raised at trial).” O.T., No. 06-17-00114-CV, 2018 Tex. App. LEXIS 1791, at *4-6 (App.—Texarkana Mar. 9, 2018)

There were eight cases which held parties did not preserve error because they did not raise their complaints at trial.  I won’t burden this report with those.

I hope this helps. Y’all take care.


Steve Hayes

Error Preservation in Texas Civil Cases, March 3, 2018

March 2, 2018

Dear All:

The Supreme Court weighed in on error preservation a couple of times in the last two weeks.

In one case, the Supreme Court reminded us that some things can be raised for the first time on appeal–like whether a court lacked subject matter jurisdiction because of an improper severance:

  • Jurisdiction: “Morello next argues that the trial court’s improper severance of the case against him from the one against White Lion deprived the court of appeals of jurisdiction. Morello also asserts that the severance resulted in two judgments based on identical theories of liability and facts and that such result violates his constitutional rights to equal protection and due course of law by imposing excessive fines leading to, essentially, a double recovery for the State. Although the court of appeals did not reach these issues, in the interest of judicial economy, we will consider them instead of remanding them to the court of appeals. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012) (“The court of appeals did not address the Hospital’s claim of immunity. Rather than remanding the case to the court of appeals for it to do so, however, we address the issue in the interest of judicial economy.”). In regard to Morello’s first [*18] contention—that improper severance deprived the court of appeals of jurisdiction to consider his appeal—he references Dalisa, Inc. v. Bradford, 81 S.W.3d 876 (Tex. App.—Austin 2002, no pet.). There, the court of appeals held that because the claims had been improperly severed, the resulting judgments were interlocutory and not final. Id. at 882. Because the appeal was from an interlocutory order, the court dismissed it for want of jurisdiction. Id. The State first claims Morello waived any objection to the severance by failing to assert the objection below. But challenges to lack of subject matter jurisdiction may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).” State v. Morello, No. 16-0457, 2018 Tex. LEXIS 169, at *17-18 (Feb. 23, 2018)

Here are a few cases–including a Supreme Court opinion involving an evidentiary issue–in which parties preserved their complaints–one preserved a no evidence complaint through a motion jnov, and one preserved an argument that the judgment improperly excluded post-judgment interest by filing a motion for entry of judgment with an attached judgment which included such interest:

  • Evidence: “At trial, Diamond offered the video on three separate occasions, both for impeachment and as substantive evidence regarding Williams’s pain and physical abilities. N. 5 N. 5. Diamond’s arguments in this appeal focus on the substantive as opposed to impeachment value of the video. Williams argues Diamond offered the video at trial only for impeachment purposes and thus has not preserved the issue presented. The context, including reference back to limine arguments, shows Diamond offered the evidence at trial for both purposes.” Diamond Offshore Servs. v. Williams, No. 16-0434, 2018 Tex. LEXIS 186, at *7 n.5 (Mar. 2, 2018)
  • Post-judgment interest: “METRO’s argument that Brooks waived her claim for post-judgment interest is without merit. As an initial matter, post-judgment interest accrues automatically. Hot-Hed, Inc., 333 S.W.3d at 735. However, Brooks preserved her complaint that the judgment improperly excluded post-judgment interest by filing a motion for entry of [*14] judgment with an attached proposed judgment that included an award of post-judgment interest.” Metro. Transit Auth. of Harris Cty. v. Brooks, No. 01-16-00158-CV, 2018 Tex. App. LEXIS 1418, at *13-14 (App.—Houston [1st Dist.] Feb. 22, 2018)
  • Legal Insufficiency: “Sunesara contends that Sohani and Virani failed to preserve for appellate review their complaint that no written record exists demonstrating Sunesara’s contributions to the LLCs or demonstrating that he is entitled to one-third of the profits because they did not object to the jury charge and they did not move for a directed verdict. . . . Here, the jury determined that Sunesara was a member of the LLCs and entitled to one-third of the profits from each of the LLCs. Sohani and Virani moved for JNOV, asserting that the evidence conclusively negated Sunesara’s right to a judgment declaring him entitled to one-third of the profits of the LLCs. They argued that Sunesara failed to present any evidence that the books and records of the LLCs showed that he was entitled to one-third of the profits, as required by Business Organizations code section 101.201 to establish a right to profits. Sohani and Virani thus presented a legal argument that would negate Sunesara’s right to a declaration that he was entitled to one-third of the profits of the LLCs. . . . By raising this argument in a motion for JNOV, Sohani and Virani properly preserved this complaint for appellate review.” Sohani v. Sunesara, No. 01-16-00460-CV, 2018 Tex. App. LEXIS 1587, at *27-28 (App.—Houston [1st Dist.] Mar. 1, 2018)

You have to comply with the pertinent rules:

  • Affirmative Defense: “Foster next argues that the evidence is insufficient to show that Chase disbursed the loan funds because there is not a cancelled check in evidence. As discussed above, the evidence shows that Chase disbursed $25,000.00 on Foster’s behalf. To the extent that Foster claims a failure of consideration, such is an affirmative defense that is waived if not pled. SeeTex. R. App. P. 33.1; TEX. R. CIV. P. 94 (providing that “failure of consideration” constitutes affirmative defense that must be specifically pleaded). Because Foster did [*27] not plead an affirmative defense of failure of consideration, the issue is waived. DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34, 48 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that affirmative defenses not affirmatively pled are waived).” Foster v. Nat’l Collegiate Student Loan Tr. 2007-4, No. 01-17-00253-CV, 2018 Tex. App. LEXIS 1606, at *26-27 (App.—Houston [1st Dist.] Mar. 1, 2018)
  • Jury Charge: “Sarfo, however, failed to preserve this issue for our review. “Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.” Tex. R. Civ. P. 278; see also Tex. R. App. P. 33.1(a), 44.1(a)(1). “A request by either party for any questions, definitions, or instructions shall be made separate and apart from such party’s objections to the court’s charge.” Tex. R. Civ. P. 273. Sarfo did not prepare a draft jury charge or otherwise submit proposed definitions or instructions to the district court. Thus, he did not preserve this issue for our review.Sarfo v. Comm’n for Lawyer Discipline, No. 03-16-00554-CV, 2018 Tex. App. LEXIS 1387, at *19 (App.—Austin Feb. 22, 2018)

Your complaint must be timely, and the record has to reveal the basis for your complaint:

  • Evidence: “Although the record indicates that Sohani and Virani objected to Exhibit 17, the record does not contain the basis for this objection, which was discussed at a bench conference off the record. The record therefore does not reflect whether Sohani and Virani objected to Exhibit 17 on [*38] the basis that it should have been excluded because Sunesara did not timely disclose it during discovery. . . . We cannot conclude from the record before us that Sohani and Virani objected to these three exhibits on the basis that Sunesara did not timely disclose the exhibits until their motion for new trial. We conclude that because Sohani and Virani did not object to Exhibits 8 and 21 at the times Sunesara offered these exhibits, because the basis for their objection to Exhibit 17 was not stated on the record, and because they waited to object to these three exhibits on the basis of the alleged untimeliness of their disclosure until a motion for new trial, Sohani and Virani did not preserve their complaint that the trial court erroneously admitted these three exhibits for appellate review. SeeTex. R. App. P. 33.1(a);” Sohani v. Sunesara, No. 01-16-00460-CV, 2018 Tex. App. LEXIS 1587, at *37-38 (App.—Houston [1st Dist.] Mar. 1, 2018)
  • Summary Judgment: “Appellants assert that the limitations period applicable to their claims was tolled by the number of days Bell was absent from the state. See Tex. Civ. Prac. & Rem. Code Ann. § 16.063. Appellants did not assert this argument in their summary judgment response or at the hearing held on Bell’s motion. Appellants instead waited until their motion [*11] for new trial to raise the issue of statutory tolling. This does not preserve the issue for appellate review. See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797-98 (Tex. 2008) (per curiam) (argument first raised by nonmovant in post-judgment filing did not preserve argument for appeal); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (party waived reliance on argument that it asserted for first time in motion for new trial).” Harris v. Bell, No. 14-16-00829-CV, 2018 Tex. App. LEXIS 1491, at *10-11 (App.—Houston [14th Dist.] Feb. 27, 2018)

You have to obtain a ruling-and you cannot count on the implied ruling safe harbor of Rule 33.1 coming into play:

  • Discovery: “The investigation reports do not show TDCJ’s fault. The fact that TDCJ investigated Cisneros’s accident does not constitute subjective awareness on the part of TDCJ that its fault produced or contributed to Cisneros’s injury. See id. at 347-48. Indeed, the results of TDCJ’s investigation indicated Cisneros, not TDCJ, was responsible for the accident. Cisneros further argues that this court should infer from the trial court’s order denying TDCJ’s Plea to the Jurisdiction that there is a need for further discovery to resolve a fact issue regarding TDCJ’s subjective awareness. In conjunction with his response to TDCJ’s Plea to the Jurisdiction, Cisneros filed a Motion to Compel discovery and argues that the trial court’s denial of the plea implies the trial court’s [*11] approval of his Motion to Compel. However, no order of the trial court granting his Motion to Compel discovery is included in the record before us. Cisneros was charged with obtaining a ruling on his Motion to compel, objecting if the court refused to rule, or otherwise obtaining a continuance from the trial court to conduct further discovery. See Tex. R. App. P. 33.1(a)(2).” Tex. Dep’t of Criminal Justice v. Cisneros, No. 09-17-00161-CV, 2018 Tex. App. LEXIS 1600, at *10-11 (App.—Beaumont Mar. 1, 2018)
  • Evidence: “In the alternative, Comerica contends that the trial court abused its discretion in excluding Plaintiff’s Exhibit 1. But after the trial court deferred ruling on Plaintiff’s Exhibit 1, Comerica did not reoffer the exhibit and request a ruling at any time before resting its case. Therefore, Comerica failed to properly preserve this issue for our review. See Tex. R. App. P. 33.1(a); Hahn v. Love, 394 S.W.3d 14, 36 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (holding that appellant waived complaint that court erred in excluding exhibits when court deferred discussion on admissibility and appellant never attempted to introduce exhibits again and never presented any argument to the trial court regarding why they were admissible). Nor did Comerica make an offer of proof at the conclusion of the trial, even though it did so for a different exhibit. See Tex. R. Evid. 103(a)(2); Carlisle v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex. App.—Houston [14th Dist.] 2004, no pet.). We therefore do not consider Comerica’s evidentiary arguments regarding Plaintiff’s Exhibit 1.” Comerica Bank v. Progressive Trade Enters., No. 14-17-00283-CV, 2018 Tex. App. LEXIS 1376, at *8 n.5 (App.—Houston [14th Dist.] Feb. 22, 2018)
  • Judicial Notice: “The problem here, however, is that this record does not indicate whether the trial court did or did not judicially notice any portion of the administrative code. And while the trial court had a statutory obligation to take notice of agency rules published in the administrative code, error preservation for failure to do so must be supported by more than a silent record. In order to preserve error, Appellants were required to secure an adverse ruling. See Tex. R. App. P. 33.1(a)(2) (providing that, in order to preserve a complaint for review, the trial court must have ruled or refused to rule). At no point during this trial did Appellants establish that the trial court did not take judicial notice, because at no point during trial did Appellants make any request or inquiry related to the taking of judicial notice.” M.C. v. Pantego Camp Thurman, Inc., No. 02-17-00022-CV, 2018 Tex. App. LEXIS 1430, at *6 (App.—Fort Worth Feb. 22, 2018)

Your objection on appeal must comport with the objection made at trial:

  • Expert Report: “As part of his second issue, Dr. Armenta challenges the adequacy of the element of causation in the expert report. In the trial court, Dr. Armenta objected to Dr. Mazzei’s report on the basis that it failed to meet the statutory requirements for stating the standard of care and identifying the breach of that standard, but he did not object on the basis of inadequacy of the report as to causation. Dr. Armenta’s argument about causation is waived because it was not raised in the trial court.” Armenta v. Jones, No. 01-17-00439-CV, 2018 Tex. App. LEXIS 1586, at *18 (App.—Houston [1st Dist.] Mar. 1, 2018)
  • Witness: “Brown argues the trial court erred by allowing the State to cross-examine him about the 1988 unadjudicated offense without first reliably establishing the facts in the record.. . . Citing to Texas Rules of Evidence 404, 405, 607, 608, and 609, Brown also argues on appeal that, if a defendant in a criminal case takes the stand and denies committing an extraneous offense, the State is not permitted to cross-examine the defendant about the conduct without offering other evidence the conduct occurred. Brown did not make this argument in the trial court and, therefore, failed to preserve it for our review. See Tex. R. App. P. 33.1(a); In re Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex. App. LEXIS 1098, 2015 WL 474604, at *4 (Tex. App.—Beaumont Feb. 5, 2015, pet. denied) (mem. op.) (“HN4 An issue on appeal that does not comport with an objection made at trial is waived.”).” In re Commitment of Brown, No. 05-16-01178-CV, 2018 Tex. App. LEXIS 1357, at *21 n.4 (App.—Dallas Feb. 20, 2018)

Your complaint must be sufficiently specific:

  • Evidence: “With respect to the business records attached to Turner’s affidavit, Foster, on appeal, argues that “several of the records/documents at issue” and the “various loan origination and loan transfer documents” were not admissible under the business records exception because those documents were not generated by TSI. She asserts that Exhibit A, the Subservicer Certification, is “suspect” and has numerous “trustworthiness issues,” i.e., it is not on letterhead, it is not addressed to TSI, it contains names that do not match the names on the governing documents, it conflicts with the indenture, and it is not notarized. She also asserts that “[a]uthentication is an issue with respect to several components of Exhibit 1, including all documents offered for chain-of-title purposes.” [*16] She also complains about the admission of the “Numerical Data Exhibits” and “Data Box Exhibit” in Exhibit 1 as “not properly authenticated” and “did not satisfy the multiple requirements applicable to business records.” The record does not reflect, however, that Foster raised any of these points in the trial court. To preserve a complaint for appellate review, a party must state an objection clearly and with sufficient specificity to make the trial court aware of the particular grounds for the complaint. Tex. R. App. P. 33.1(a); McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989). A specific objection is one that enables the trial court to understand the precise grounds so as to make an informed ruling and affords the offering party an opportunity to remedy the defect, if possible. McKinney, 772 S.W.2d at 74. As discussed above, the record shows that Foster made a general hearsay objection. “[A] general hearsay objection does not preserve for appeal a challenge to a proper predicate’s being made to admit business records.” Rogers v. Dep’t of Family & Protective Servs., 175 S.W.3d 370, 376 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) . . . . We hold that the trial court did not err in admitting the business-records affidavit. We overrule the portion of Foster’s first issue in which she challenges the affidavit. Foster has waived the remaining portions of her first issue.” Foster v. Nat’l Collegiate Student Loan Tr. 2007-4, No. 01-17-00253-CV, 2018 Tex. App. LEXIS 1606, at *15-17 (App.—Houston [1st Dist.] Mar. 1, 2018)

There are a number of cases in which the parties did not raise their complaints in the trial court, and I won’t set those out here.

I hope this helps. Y’all take care.


Steve Hayes