Error Preservation Update, June 11, 2017

June 11, 2017

Dear All:

First, thanks to Scott Rothenberg for tipping me to an error preservation from the Houston 14th. I need all the help I can get, as Scott well knows.

The Supreme Court issued several error preservation rulings recently–one of significant interest, some that seem pretty mundane, and one that actually saw the dissent fuss at the majority for deciding an issue that was not raised in the trial court. First, the case in which the Court seems to hold that one has to get a written ruling on objections to summary judgment evidence:

• Summary Judgment: “As an initial matter, WHM argues that the court of appeals improperly relied on certain late-filed summary-judgment evidence. But the court of appeals’ error, if [*16] any, has been waived. Even objected-to evidence remains valid summary-judgment proof “unless an order sustaining the objection is reduced to writing, signed, and entered of record.” Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 842 (Tex. App.—Austin 2003, no pet.). The record contains no order sustaining the objection.” Exxon Mobil Corp. v. Rincones, No. 15-0240, 2017 Tex. LEXIS 479, at *15-16 (May 26, 2017)

Then, there is the case in which the Court members disagreed whether error was preserved:

• Discovery: “The issue is whether a party’s attorney-billing information is discoverable when the party challenges an opposing party’s attorney-fee request as unreasonable or unnecessary but neither uses its own attorney fees as a comparator nor seeks to recover any portion of its own attorney fees. . . . Finally, the dissent’s preservation argument misses the mark. The insurer’s opposition to discovery is two-pronged: (1) the requested information is privileged and irrelevant under the general scope of discovery, and (2) the insurer’s designation of its attorney as an expert witness does not change this fact. Whether designation of counsel as an expert alters the discovery analysis—as the homeowners and dissent maintain—is well within the issue presented.” In re Nat’l Lloyds Ins. Co., No. 15-0591, 2017 Tex. LEXIS 522, at *40 (June 9, 2017)
  • Dissent: “National Lloyds did not assert in the trial court that the homeowners improperly requested discovery by using interrogatories and requests for production. It did not assert in the court of appeals that the trial court abused its discretion by authorizing discovery by means of interrogatories and requests for production instead of requests for disclosure, depositions, and reports as permitted by Rule 195. See Tex. R. Civ. P. 195 (entitled “Discovery Regarding Testifying Expert Witnesses”). Nor has it made that argument here. The issue of whether the homeowners used proper discovery methods when National Lloyds did not make that challenge is not an issue the trial court had a duty to raise and rule on sua sponte. . . . We do not have a duty to sua sponte raise the issue, either. . . . To the contrary, under this record we should do as the trial court did and limit ourselves to ruling on the issues presented by the parties. In my view, the trial court did not abuse its discretion by addressing only the issues presented by the parties and not granting relief on grounds National Lloyds did not urge.” In re Nat’l Lloyds Ins. Co., No. 15-0591, 2017 Tex. LEXIS 522, at *44-46 (June 9, 2017), Johnson, J., joined by Lehrmann and Boyd.

And then, the more pedestrian decisions, in which the Court held error was preserved:

• Agency: “Rincones also argues that Exxon can be liable for tortious interference through its agency relationship with WHM and DISA. Exxon argues that Rincones did not raise this argument in response to Exxon’s summary-judgment motion on the tortious-interference claim and, because the issue was not presented to the trial court, it may not be considered on appeal to revive his claim here. State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986) (per curiam) (“[I]ssues not expressly presented to the trial court may not be considered on appeal as grounds for reversal of a summary judgment.”). Rincones’s discussion of this argument in his response to summary judgment is brief and not specific; he alleged that “Exxon and WHM empowered DISA . . . as agents to implement its [sic] drug[-]testing policy.” Nevertheless, the allegation was sufficient to preserve the error for the court of appeals’ review.” Exxon Mobil Corp. v. Rincones, No. 15-0240, 2017 Tex. LEXIS 479, at *29 (May 26, 2017)
• Exemplary Damages: “We now consider whether the court of appeals erred by holding that Acadia and [*66] PRP preserved error with respect to their contention that the trial court’s judgment improperly awarded exemplary damages against them jointly and severally. . . . Horizon argues that Acadia and PRP waived this issue by failing to raise it in the trial court and in their opening appellate brief. We disagree. Prior to the trial court’s entry of judgment, the individual defendants [*67] filed a motion opposing Horizon’s motion for entry of judgment, arguing that “Exemplary Damages Must Be Assessed Specifically, Not Jointly and Severally” and that “the proposed Final Judgment should be revised to accurately reflect the jury’s exemplary damages award as to each individual Defendant rather than joint and several liability among all Defendants.” Further, the individual defendants argued in response to Horizon’s amended motion for entry of judgment that “[t]he jury was not asked to assess exemplary damages against Acadia or PRP. . . . Acadia and PRP cannot be jointly and severally liable for the exemplary damages assessed against Saul, Palus, Ulasewicz, Bayma, and Piechocki.” Acadia and PRP adopted the individual defendants’ arguments raised in their response to Horizon’s amended motion for entry of judgment. Thus, Acadia and PRP preserved error in the trial court.” Horizon Health Corp. v. Acadia Healthcare Co., No. 15-0819, 2017 Tex. LEXIS 480, at *67 (May 26, 2017)
• Jury Charge: “First, we must address Longview’s contention that the Huff Defendants did not preserve error by their objections. The Huff Defendants objected to Question 5 on several grounds, including the grounds that (1) there was “no evidence of identifiable property belonging to Longview which ended up in Riley-Huff’s possession,” and (2) “to the extent Longview seeks to use Question Number 5 as a basis for constructive trust over Riley-Huff’s assets, Longview’s claim for a constructive trust fails because it cannot trace by strict proof or otherwise something misappropriated from it to an identifiable res.” By those objections, the Huff Defendants clearly preserved error as to the legal sufficiency of the evidence to support tracing any specific lease Riley-Huff acquired to Huff’s or D’Angelo’s breaches of fiduciary duties. See TEX. R. CIV. P. 274.” Longview Energy Co. v. Huff Energy Fund LP, No. 15-0968, 2017 Tex. LEXIS 525, at *15 (June 9, 2017)

Moving on to the courts of appeals, here is one in which a motion for new trial preserved a complaint about the sufficiency of the evidence, and one in which the motion for directed verdict did the same as to legal sufficiency:

• Legal and Factual Sufficiency: “Here, Short filed a motion for new trial asserting, among other grounds, that the State’s experts “failed to show a basis for support of their opinion that [his] sexual deviance makes him likely to act on that tendency.” Short further asserted that the jury’s answer to question one in the jury charge was not proven beyond a reasonable doubt. . . . On appeal, Short makes essentially the same complaint in his sufficiency challenges—that the State did not meet its burden of proof to show that he currently lacks control over his own behavior and that the State failed to connect his past behavior to his present behavior. Short’s complaints in his motion for new trial were clear enough to give the trial court the opportunity to address them. See Tex. R. Civ. P. 321 (requiring that each point relied on in a motion for new trial “shall briefly refer to that part of the ruling of the court . . . in such a way that the objection can be clearly identified and understood by the court”);” In re Commitment of Short, No. 02-16-00179-CV, 2017 Tex. App. LEXIS 5246, at *4 (Tex. App.—Fort Worth June 8, 2017)
• Legal Sufficiency: “However, because Janet sought a partial motion for directed verdict on the issue of contributory negligence, her legal sufficiency challenge is preserved for appellate review.” Molina v. Hurricane Harbor, L.P., No. 12-16-00208-CV, 2017 Tex. App. LEXIS 5196, at *6 (Tex. App.—Tyler June 7, 2017)

Some complaints you may raise for the first time on appeal: the evidence does not support the entry of a traditional summary judgment; legal or factual sufficiency issues in a bench trial; insufficient notice of a hearing at which you did not appear; and whether a party seeking expunction has satisfied all the requirements for the same:

• Expunction: “S.E.H. argues that TEA waived its argument that he failed to prove that he satisfies all of the statutory prerequisites for expunction because TEA did not raise this argument in the trial court. TEA was not required to preserve the alleged [*6] errors for our review, however, because trial courts have an independent duty to insure that the petitioner has proven that he meets all of the statutory requirements for expunction.” Tex. Educ. Agency v. S.E.H., No. 01-16-00420-CV, 2017 Tex. App. LEXIS 5157, at *5-6 (Tex. App.—Houston [1st Dist.] June 6, 2017)
• Legal and Factually Sufficiency: “Father did not challenge the award of attorney’s fees in either his motion to reconsider or his motion for new trial. However, HN20 a motion for new trial is not a prerequisite to a complaint on appeal from a bench trial about the legal or factual sufficiency of the evidence. Tex. R. Civ. P. 324(a), (b); Tex. R. App. P. 33.1(d) (“In a 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.”). Accordingly, Father may challenge in this appeal the sufficiency of the evidence to support the trial court’s award of attorney’s fees.” In the Interest of A.T., No. 05-16-00539-CV, 2017 Tex. App. LEXIS 5004, at *50 (Tex. App.—Dallas May 31, 2017)
• Notice: “Appellant did not complain he received inadequate notice of the hearing in the trial court. However, because he did not appear at the hearing, his complaint is properly before us.” In re B.T.G., No. 05-17-00521-CV, 2017 Tex. App. LEXIS 4911, at *4 (Tex. App.—Dallas May 30, 2017)
• Summary Judgment: “On appeal, TOS argues that Clark did not establish all the essential elements of his breach of contract claim as a matter of law. . . .In response, Clark maintains that TOS failed to preserve this issue for appellate review by neglecting to raise it at trial. However, the trial [*4] court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient. . . .  The nonmovant need not object to the legal sufficiency of a traditional summary judgment motion to preserve a challenge on appeal. See McConnell, 858 S.W.2d at 341. When the nonmovant brings a legal sufficiency challenge, the movant must still establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action as a matter of law. . . . Accordingly, TOS is entitled to present its legal sufficiency challenge to the existence of an employment contract.” Thomas Oilfield Servs., LLC v. Clark, No. 12-16-00207-CV, 2017 Tex. App. LEXIS 4699, at *4 (Tex. App.—Tyler May 24, 2017)

If you present your complaint appropriately in the trial court, you will have preserved it:

• Legal and Factual Sufficiency: “Our [*18] review of the record shows that Michael preserved his right to challenge the legal and factual sufficiency of the damage award by filing a post-judgment motion complaining that the evidence was legally and factually insufficient to support the jury’s damage awards. Janice’s argument that Michael failed to properly preserve his issue two arguments is without merit. ” Ishee v. Ishee, No. 09-15-00197-CV, 2017 Tex. App. LEXIS 4761, at *17-18 (Tex. App.—Beaumont May 25, 2017)
• Privilege: “We disagree with Salinas that Urban did not preserve the issue of qualified privilege for appeal. Urban invoked qualified privilege in its pre-hearing answer and presented the issue to the trial court in both its reply and in its arguments at the hearing on its motion to dismiss. In its order denying Urban’s motion to dismiss, the trial court stated that it considered the motion, Salinas’s response, the “reply thereto,” and the arguments of counsel. Accordingly, Urban has preserved the issue for appeal. See Tex. R. App. P. 33.1;” Urban Eng’g v. Salinas Constr. Techs., No. 13-16-00451-CV, 2017 Tex. App. LEXIS 4815, at *14 n.4 (Tex. App.—Corpus Christi May 25, 2017)
• Settlement Credits: “Steven correctly notes that Farmers [*14] did not cite Ellender and Utts to the trial court; however, throughout the case, Farmers argued—consistent with the burden-shifting framework discussed in Ellender—that it should be credited for the entire settlement amount. Farmers also argued that it was not Farmers’ burden to prove what portion of the settlement may have gone to Patricia. Further, Farmers’ response to Steven’s community property argument was only one of several arguments Farmers asserted, and there is no indication that Farmers abandoned any of its alternative arguments. . . . We conclude that Farmers sufficiently articulated its position that the burden was on Steven to show that some part of the settlement was allocated to Patricia to preserve the argument on appeal, and did not waive this argument by arguing in the alternative that, to the extent that Steven’s personal-injury settlement may include compensation for community damages, Farmers’ evidence demonstrated that no amount of the settlement should be allocated to Patricia. Moreover, Farmers’ complaints about sufficiency of the evidence supporting a nonjury issue may be made for the first time on [*15] appeal.” Farmers Tex. Cty. Mut. Ins. Co. v. Okelberry, No. 14-15-01081-CV, 2017 Tex. App. LEXIS 4765, at *13-15 (Tex. App.—Houston [14th Dist.] May 25, 2017)

You have to comply with other rules:

• Capacity: “A challenge to who owns a claim raises the issue of capacity, not standing, and requires [*3] compliance with Rule 93, including the requirement to file a verified pleading. Tex. R. Civ. P. 93(1); . . . . The defendant bears the burden to challenge a plaintiff’s capacity to sue. . . . Vertical NA’s lack of capacity, if any, is not evident from its first amended petition. The record does not reflect, and Vopak does not assert, that it satisfied the requirements of Rule 93. Accordingly, we do not address that issue on its merits.” Vertical N. Am., Inc. v. Vopak Terminal Deer Park, Inc., No. 14-15-01088-CV, 2017 Tex. App. LEXIS 4646, at *2-3 (Tex. App.—Houston [14th Dist.] May 23, 2017)
• Factual Sufficiency: “The record in this case does not indicate that Janet presented her factual sufficiency challenge in a motion for new trial. Accordingly, her factual sufficiency complaint is waived.” Molina v. Hurricane Harbor, L.P., No. 12-16-00208-CV, 2017 Tex. App. LEXIS 5196, at *6 (Tex. App.—Tyler June 7, 2017)
• Findings: “Weatherspoon next asserts that the trial court abused its discretion in failing to file findings of fact and conclusions of law pursuant to his request. See TEX. R. CIV. P. 297. However, HN2 Rule 297 requires not only an initial request for findings of fact and conclusions of law, but also a “Notice of Past Due Findings of Fact and Conclusions of Law” if the trial court fails to timely file the requested findings and conclusions. See id. The record does not reflect that Weatherspoon filed this past due “reminder.” Thus, he has waived his right to complain of the error on appeal.” In the Interest of A.M.W., No. 04-16-00105-CV, 2017 Tex. App. LEXIS 4710, at *4 (Tex. App.—San Antonio May 24, 2017)
• Capacity: “While standing may be raised for the first time on appeal, capacity must be raised by verified plea in the trial court or else it is deemed waived. . . .We characterize the standing argument as a challenge to EMC Cement’s right to recover [*6] in the capacity in which it filed suit. In other words, we conclude that Walker, Wilson, and Few Ready Mix’s argument that EMC Cement did not have authority to prosecute this lawsuit because that authority belonged to the partnership involves capacity, not standing. . . . .And because the record does not contain a verified plea filed in the trial court under Texas Rule of Civil Procedure 93, we conclude that this argument has been waived. See Tex. R. Civ. P. 93;” Pike v. Tex. EMC Mgmt., LLC, No. 10-14-00274-CV, 2017 Tex. App. LEXIS 5217, at *5-6 (Tex. App.—Waco June 7, 2017)
• Personal Jurisdiction: “Accordingly, for the foregoing reasons, we conclude that Vertex’s agreed motion for new trial invoked the judgment of the trial court on a question other than the court’s jurisdiction, acknowledged that suit was properly pending in Texas, and sought affirmative action from the trial court. . . . Thus, Vertex made a general appearance in this case, thereby waiving any complaint to the trial court’s personal jurisdiction over Vertex.” Vertex Indus. v. Allstate Fire & Cas. Ins. Co., No. 12-16-00303-CV, 2017 Tex. App. LEXIS 5188, at *7 (Tex. App.—Tyler June 7, 2017)

You have to present your complaint in a timely fashion:

• Findings: “Thus, the lack of findings of fact and conclusions of law on the duration issue did not render the Commission’s order on the duration of the permit not subject to a motion for rehearing. Rather, the aggrieved party was required to point out this defect in its motion for rehearing in order to afford the Commission an opportunity to correct the error. Similarly, in this case, even assuming the ALJ’s dismissal order lacked findings of fact, Isa was required to point out this deficiency in a motion for rehearing. Since he failed to do so, he has failed to preserve any error regarding the lack of findings of [*19] fact.” Isa v. PUC of Tex., No. 06-16-00070-CV, 2017 Tex. App. LEXIS 4838, at *18-19 (Tex. App.—Texarkana May 26, 2017)

You have to get a ruling on your complaint, though sometimes the trial court will rule implicitly, and a letter ruling will sometimes suffice:

• Arbitration: “The record before us does not indicate that the trial court expressly ruled on Samir’s motion to vacate the arbitration award. In rendering final judgment confirming the award, however, the trial court implicitly overruled Samir’s motion to vacate. See Tex. R. App. P. 33.1(a)(2);” Kreit v. Brewer & Pritchard, P.C., No. 14-16-00046-CV, 2017 Tex. App. LEXIS 5248, at *6 n.6 (Tex. App.—Houston [14th Dist.] June 8, 2017)
• Continuance: “This Court has held that a “party moving for continuance of a summary-judgment hearing must obtain a written ruling on its motion in order to preserve a complaint for appellate review.” Kadhum v. Homecomings Fin. Network, Inc., No. 01-05-00705-CV, 2006 Tex. App. LEXIS 3401, 2006 WL 1125240, at *2 (Tex. App.—Houston [1st Dist.] Apr. 27, 2006, pet. denied) (mem. op.); see Tex. R. App. P. 33.1; . . . . Because Young, as he states in his reply brief, did not obtain a written ruling on his motion for continuance, he has not preserved his complaint for appellate review. See Tex. R. App. P. 33.1;” Young v. Heins, No. 01-15-00500-CV, 2017 Tex. App. LEXIS 5075, at *19 (Tex. App.—Houston [1st Dist.] June 1, 2017)
• Summary Judgment: “The trial court’s letter specifically stating that the [late-served summary judgment] response was not considered, and the rationale for disregarding it, was sufficient to constitute an implicit ruling granting Caum’s motion to strike.” Krajca v. Caum, No. 01-16-00057-CV, 2017 Tex. App. LEXIS 5272, at *7 (Tex. App.—Houston [1st Dist.] June 8, 2017)

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

• Affidavit: “In the trial court, ConocoPhillips moved to strike Luciano Rodriguez’s affidavit because he had “no professional accounting experience and [*37] no experience in oil and gas accounting;” therefore, he was unqualified to testify about errors in Sowards’s cotenancy accounting. The motion to strike was denied. On appeal, ConocoPhillips argues Rodriguez’s affidavit should have been stricken for that reason (i.e., not qualified), and because “an expert may not testify to pure questions of law.” The second basis was not raised in the trial court, and may not be raised for the first time on appeal. See Tex. R. App. P. 33.1(a).” ConocoPhillips Co. v. Ramirez, No. 04-15-00487-CV, 2017 Tex. App. LEXIS 5183, at *36-37 (Tex. App.—San Antonio June 7, 2017)
• Arbitration: “Finally, Camil did not properly raise all aspects of his first issue in the trial court. Though Camil’s motion to vacate asserts that no agreement to arbitrate existed as to him individually, he did not raise the lack of ruling on arbitrability prior to the arbitration proceeding as a ground for vacatur or assert that Brewer & Pritchard was obligated to raise the issue in the trial court before obtaining an arbitration award. As a result, he cannot advance these arguments on appeal to obtain reversal. See Tex. R. App. P. 33.1(a)(1).” Kreit v. Brewer & Pritchard, P.C., No. 14-16-00046-CV, 2017 Tex. App. LEXIS 5248, at *12 (Tex. App.—Houston [14th Dist.] June 8, 2017)

Because this is already pretty long, I won’t include the rulings which held that error was not preserved because not raised in the trial court.

I hope this helps.  Y’all have a good week.

Best regards.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation Update, May 21, 2017

May 21, 2017

Dear All:

The Supreme Court weighed in on error preservation again, holding that, by filing a notice of past due findings, a party preserved its complaint about a successor judge’s inability to sign findings.

• Findings: “Villarai first contends that Pak waived any complaint about Judge Williams’s authority to file findings because he never raised that objection in the trial court. . . . shortly after taking office, Judge Williams . . . filed her findings on January 12. Pak never objected to any of these orders and did not challenge Judge Williams’s authority to file the findings until he filed his appellant’s brief in the court of appeals. A majority of the appellate-court panel concluded that, despite [*7] Pak’s failure to raise an objection in the trial court, Judge Williams lacked authority to file the findings and thus the findings were of “no effect.” Id. at *2. . . .We agree with Pak and the court of appeals’ majority. Our error-preservation rules require litigants to make “a timely request, objection, or motion that” provides the grounds for relief and complies with the Rules of Civil or Appellate Procedure. Tex. R. App. P. 33.1. The Rules of Civil Procedure provide the mechanism for parties to preserve error regarding a trial court’s findings of fact. See Tex. R. App. P. 296 (requiring litigants to file a request for findings within twenty days of the final judgment), 297 (requiring litigants to file a notice of past due findings when the court does not file findings within twenty days). . . . filing a notice of past due findings is sufficient to preserve error for unfiled findings. What appears to make this case [*8] different is that Judge Williams did file findings, but this is a distinction without a difference. When a party challenges a lack of findings from the trial court, it is immaterial whether the court literally filed no findings or filed something that amounts to no findings authorized by law. In either case, the trial court has not discharged its obligation to provide findings and the requesting party does not have findings that comply with rule 296. Thus, Pak did not have an obligation to preserve error beyond filing his request for past due findings.” Villarai v. Pak, No. 16-0373, 2017 Tex. LEXIS 453, at *6-8 (May 12, 2017)

Jurisdiction, or the lack thereof, may be raised for the first time on appeal:

• Jurisdiction: “On appeal, the Stakeholders Group argues that the PUC failed to present any jurisdictional challenge to the trial court as to the ultra vires claims against the Commissioners because the PUC only orally requested dismissal of those claims during the hearing on the pleas to the jurisdiction. But subject matter jurisdiction may be raised at any time and may be considered by a court sua sponte.” Chisholm Trail SUD Stakeholders Grp. v. Chisholm Trail Special Util. Dist. & Dist. Dirs. Robinson, No. 03-16-00214-CV, 2017 Tex. App. LEXIS 4285, at *23 n.12 (Tex. App.—Austin May 11, 2017)
• Jurisdiction: “As an alternative basis to support the district court’s subject-matter jurisdiction, appellees argue that their taxpayer standing supported the trial court’s jurisdiction over their claims and that the City waived any challenge to the district court’s jurisdiction on this basis by not raising or briefing the issue. Jurisdiction, however, cannot be waived. Further, HN16 taxpayer standing represents an exception to the “general rule of Texas law” that a plaintiff show a particularized injury to establish his or her constitutional standing—a jurisdictional requirement that is distinct and independent from the aforementioned jurisdictional limits on civil court’s equity jurisdiction to address penal enactments.” City of New Braunfels v. Stop The Ordinances Please, No. 03-14-00198-CV, 2017 Tex. App. LEXIS 4498, at *29 (Tex. App.—Austin May 18, 2017)

You don’t waive a complaint just because you offer to work things out:

• Discovery: “Met-Tech and Herrera argue that SCGE waived its objection that the firearms and related items are not relevant under Texas Rule of Civil Procedure 197.6. The record does not support this argument. To the contrary, the record shows that SCGE repeatedly argued that the guns and other items are not relevant to the litigation. Met-Tech and Herrera also assert that SCGE agreed that they had a right to inspect SCGE’s assets. While SCGE offered to allow counsel for Met-Tech and Herrera to view certain guns at a neutral location, it made this offer in an effort to resolve the discovery dispute and to prevent entry onto Bristow’s property. This offer did not operate as a waiver of SCGE’s objections to the motion for entry onto Bristow’s property.” In re Sun City Gun Exch., No. 08-16-00357-CV, 2017 Tex. App. LEXIS 4399, at *9 (Tex. App.—El Paso May 12, 2017)

Your complaint must comply with other pertinent rules:

• Evidence: “Regarding the rulings [*6] excluding the documents relating to Echendu’s damages, the excluded evidence is not before this Court in an offer of proof or a formal bill of exception. HN3 To challenge the exclusion of evidence by the trial court on appeal, the complaining party must present the excluded evidence to the trial court by offer of proof or bill of exception. Tex. R. Evid. 103(a), (b); Tex. R. App. P. 33.2; . . . . Because the excluded evidence was not included in an offer of proof or a formal bill of exception, any complaint about exclusion of the evidence is not preserved for review. . . .We overrule Echendu’s fourth issue.” Echendu v. Huerta, No. 05-15-01351-CV, 2017 Tex. App. LEXIS 4214, at *5-6 (Tex. App.—Dallas May 9, 2017)
• Evidence: “As to Serafine’s contention that the trial court did not admit additional evidence beyond that admitted at trial, the record indicates that Serafine did not attempt to offer any additional evidence regarding the boundary at the November bench hearing, and she therefore cannot point to any objection she made to any ruling by the trial court on this issue. Therefore, we will not address that aspect of her complaint on appeal as she has waived error on it. See Tex. R. App. P. 33.1. Accordingly, we overrule Serafine’s third issue.” Serafine v. Blunt, No. 03-16-00131-CV, 2017 Tex. App. LEXIS 4606, at *13 (Tex. App.—Austin May 19, 2017)
• Sufficiency: “The Department argues that L.B. failed to preserve his legal and factual sufficiency complaints. To preserve a legal sufficiency challenge for appeal, the appealing party must have asserted the point by (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission [*21] of the issue to the jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion for new trial. See. . . . Because L.B. never brought his legal sufficiency challenge to the trial court’s attention, L.B.’s legal sufficiency issue has not been preserved for appeal. . . .for appellate review. See Tex. R. Civ. P. 324(b)(2).” In the Interest of J.B., No. 09-16-00442-CV, 2017 Tex. App. LEXIS 4543, at *20-21 (Tex. App.—Beaumont May 18, 2017)

The complaint you make on appeal must comport with the complaint you raised at trial:

• Evidence: “In that issue, HOP contends the trial court erred in making various evidentiary rulings; the first being that it erred in overruling HOP’s “objections” to testimony by the City Attorney. Specifically, HOP contends the City Attorney was erroneously permitted to testify regarding the status of the municipal court order. The basis of one objection made by HOP during the City Attorney’s argument to the trial court was that the City Attorney was “arguing the merits.” This is not the argument HOP makes on appeal. In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court. . . . Because the objection asserted at the trial does not comport with the objection argued on appeal, HOP’s complaint is not preserved. Tex. R. App. P. 33.1(a).” House of Praise Ministries, Inc. v. City of Red Oak, No. 10-15-00148-CV, 2017 Tex. App. LEXIS 4095, at *3 (Tex. App.—Waco May 3, 2017)
• Jury Charge: “Elness contends that the trial court erred in submitting the jury question because the hotel [*19] contract stated only that Elness’s services would “include” structural-engineering services and did not provide a warranty or guarantee regarding the quality of the services. Elness further contends that the question was erroneously submitted because “RLJ did not plead or prove any theory of respondeat superior or vicarious liability against [Elness] for [the structural-engineering company’s] structural engineering services.” . . . Here, Elness’s argument on appeal does not comport with the objection it raised at trial. An objection that RLJ presented no evidence to show that Elness failed to comply with the structural-engineering services referenced in the hotel contract is an entirely different argument than one asserting that Elness was not required to provide structural-engineering services that were free from defects and that RLJ was required to plead and prove a theory of respondeat superior or vicarious [*21] liability in order to hold Elness responsible for faulty structural-engineering services. Because Elness did not raise the argument in the trial court that it now raises on appeal, it has not preserved this issue for our review. See Tex. R. Civ. P. 272, 274;” Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, No. 03-14-00738-CV, 2017 Tex. App. LEXIS 3990, at *20-21 (Tex. App.—Austin May 3, 2017)

Your complaint must be timely:

• Appointment of Counsel: “O’Dell, however, did not file a motion for appointment of an attorney until after the judgment in this case was signed. Thus, even if he had demonstrated circumstances characterizing this case as exceptional, his failure to make the request known to the trial court in a timely manner waives consideration of his complaint on appeal. See Tex. R. App. P. 33.1(a).” In the Interest of J.C.W., No. 04-16-00002-CV, 2017 Tex. App. LEXIS 4243, at *5 (Tex. App.—San Antonio May 10, 2017)
• Stay Order: “Bergenholtz does not cite any case law in support of his argument that the June 9, 2014 is void because it violated the Section 11.052 stay and we are aware of none. In order to complain that the June 9, 2014 order violated the stay, Bergenholtz was required to have preserved this issue by presenting it to the trial court in a timely manner and obtaining an adverse ruling. See Tex.R.App.P. 33.1; . . .The record does not reflect that Bergenholtz voiced any objection based on the stay in response to Eskenazi’s motion to reduce the settlement agreement to judgment or at any time before the court entered the June 9, 2014 order. He raised the argument for the first time several months later, on February 6, 2015, when he filed his response to Eskenazi’s application for issuance of turnover over and for appointment of receiver. Given that Bergenholtz disregarded the stay and sought affirmative relief from [*5] the trial court during the pendency of the stay, and he did not object based on the stay until long after the trial court entered the June 9, 2014 order, we decline to hold that the order is void. Issue One is overruled.” Bergenholtz v. Eskenazi, No. 08-15-00144-CV, 2017 Tex. App. LEXIS 4015, at *4-5 (Tex. App.—El Paso May 3, 2017)

You have to obtain a ruling on your complaint:

• Answer: “Regarding Huerta’s answer and the denial of Echendu’s second motion for default judgment, we conclude the complaints are not preserved because the record does not show a ruling on the motion or a refusal to rule and an objection to the refusal to rule. Tex. R. App. P. 33.1(a) (as a prerequisite to making a complaint on appeal, the record must show the complaint was brought to the trial court’s attention and the trial court ruled on the complaint or refused to rule and the complaining party objected to the refusal);” Echendu v. Huerta, No. 05-15-01351-CV, 2017 Tex. App. LEXIS 4214, at *6-7 (App.—Dallas May 9, 2017)
• Discovery: “In his opening brief, Donohue also makes reference to the trial court’s denial of his request for discovery. The record, however, contains no ruling by the trial court on a request for discovery. Accordingly, any complaint regarding discovery is not preserved for this court’s consideration. See Tex. R. App. P. 33.1;” Donohue v. McManus, No. 04-16-00679-CV, 2017 Tex. App. LEXIS 4234, at *8 n.4 (Tex. App.—San Antonio May 10, 2017)
• Evidence: “The Theophilus defendants failed to obtain a ruling on their objection to Nguyen’s testimony; therefore, their challenge to his testimony on the fees in the underlying suit has not been preserved for review. Tex. R. App. P. 33.1(a)(2).” Crawford v. Nguyen & Chen LLP, No. 01-16-00274-CV, 2017 Tex. App. LEXIS 4086, at *6 (Tex. App.—Houston [1st Dist.] May 4, 2017)
• Evidence: “Thus, because the trial court did not rule “‘on the request, objection, or motion, either expressly or implicitly,’ or did not refuse ‘to rule on the request, objection, or motion,'” Great Northern failed to preserve the issue of alleged error in the failure to admit Moran’s . . . .Tex. R. App. P. 33.1).” Great N. Energy, Inc. v. Circle Ridge Prod., No. 06-16-00015-CV, 2017 Tex. App. LEXIS 4080, at *35 (Tex. App.—Texarkana May 3, 2017)

You have to raise your complaint in the trial court:

• Ad Litems: “Next, Baldomero contends that the trial court reversibly erred by failing to appoint the child either an attorney ad litem or guardian ad litem before the first adversary hearing. He raises the complaints on appeal for the first time. Neither complaint was uttered below. Consequently, they were not preserved for review.” In the Interest of N.M., No. 07-17-00003-CV, 2017 Tex. App. LEXIS 4466, at *9 (Tex. App.—Amarillo May 16, 2017)
• Administrative Record: “Moreover, Smith’s failure to obtain an official or certified copy of the administrative record from the SOAH is not jurisdictional but instead may be waived. See Tex. Dep’t of Pub. Safety v. Duggin, 962 S.W.2d 76, 79 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (“Without an objection below, DPS cannot argue for the first time in this Court that the county court did not base its opinion on the administrative record.”). Because the Department did not appear at the October 29 hearing, it has not preserved, for purposes of this appeal, any complaint it may have that the county court failed to base its decision on the official administrative record. See id.; see also Tex. R. App. P. 33.1.” Tex. Dep’t of Pub. Safety v. Smith, No. 13-16-00082-CV, 2017 Tex. App. LEXIS 4051, at *11 (Tex. App.—Corpus Christi May 4, 2017)
• Answer: Nor does the record show any objection [*7] to Huerta dictating his answer into the record; in fact, Echendu moved for continuance on the basis that the answer was filed the day of trial. Although pleadings in district and county courts must be in writing, Tex. R. Civ. P. 45, 46, a party waives its complaint by failing to object to the lack of a written pleading.” Echendu v. Huerta, No. 05-15-01351-CV, 2017 Tex. App. LEXIS 4214, at *6-7 (Tex. App.—Dallas May 9, 2017)
• Arrearages: “Alfredo seeks a new trial on the ground that the trial court wrongfully failed to award Virginia statutory 6% interest on his arrearage, which would increase the deficiency judgment against him. See Tex. Fam. Code Ann. § 157.265 (West, Westlaw through 2015 R.S.). Alfredo cites the rule that “[a]warding interest on child support arrearages is mandatory and the trial court has no discretion to not award the full amount of interest due.” In re A.C.B., 302 S.W.3d 560, 566 (Tex. App.—Amarillo 2009, no pet.). However, generally, an appellate court cannot reverse the trial court based on a complaint not raised in the trial court. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). To preserve an issue for appeal, a party must have presented it to the trial court by a timely request, objection, or motion specifically stating the grounds for the desired ruling. See Tex. R. App. P. 33.1(a)(1). Because Alfredo did not raise this issue before the trial court in any form, the issue is not [*5] preserved for our review, and we need not address it.” Aguirre v. Aguirre, No. 13-16-00292-CV, 2017 Tex. App. LEXIS 4580, at *4-5 (Tex. App.—Corpus Christi May 18, 2017)
• Evidence: “Next, HOP complains that the trial court erred in admitting the City’s business records because those records are [*5] not admissible for proof of the matter asserted. HOP did not object to the admission of the City’s business records into evidence. Accordingly, this complaint is not preserved. See Tex. R. App. P. 33.1.” House of Praise Ministries, Inc. v. City of Red Oak, No. 10-15-00148-CV, 2017 Tex. App. LEXIS 4095, at *4-5 (Tex. App.—Waco May 3, 2017)
• Dismissal: “Appellants are correct—aside from its general manager’s affidavit purporting to demonstrate the protected status of the information in question, Autocraft presented no evidence in opposition to appellants’ motion and never attempted to establish or address each essential element of its claims, focusing instead on challenging whether the TCPA applied in the first place. . . . Autocraft similarly attempts to argue, for the first time on appeal, that its “legal action” is exempted from the Act by the so-called “commercial speech” provision, Section 27.010(b). This contention is waived by Autocraft’s failure to raise it below, see Tex. R. App. P. 33.1;” Elite Auto Body Llc v. Autocraft Bodywerks, No. 03-15-00064-CV, 2017 Tex. App. LEXIS 4108, at *25 n.75 (Tex. App.—Austin May 5, 2017)
• Evidence: “Fifth, the Bells argue a party’s production of documents is self-authenticating. However, the Bells did not raise this argument in the trial court and have therefore not preserved this issue for our review. See Tex. R. App. P. 33.1. We overrule the Bells’ fifth argument.” Bell v. Harris, No. 05-15-01117-CV, 2017 Tex. App. LEXIS 4112, at *13 (Tex. App.—Dallas May 3, 2017)
• Evidence: “Prior to any testimony or argument by counsel, the statement of the facts from the hearing before the associate judge was admitted in its entirety without [*35] objection. See Tex. R. App. P. 33.1(a) (providing that failure to make a timely request, objection, or motion apprising the trial court of the complaint waives review of the complained of error); . . .
  Because the statute clearly vests the trial court with the authority to consider the record of the hearing before the associate judge, we overrule Ralph’s second issue on appeal.” In re R.S.-T., No. 04-16-00724-CV, 2017 Tex. App. LEXIS 4486, at *34-35 (Tex. App.—San Antonio May 17, 2017)
• Expungement: “She asserts that these errors warrant vacation of the expungement and a clarification that the expungement is void retroactively. The Blunts respond that Serafine has waived this issue by failing to make a timely, specific objection before the trial court. See Tex. R. App. P. 33.1. We agree. At the hearing, the Blunts’ counsel orally requested the trial court to expunge the lis pendens. Although Serafine was present, she did not object to the request [*9] or to the court’s ruling. Accordingly, Serafine has waived her complaints about the propriety of the trial court’s expungement of the lis pendens, and we accordingly overrule her second issue.” Serafine v. Blunt, No. 03-16-00131-CV, 2017 Tex. App. LEXIS 4606, at *8-9 (Tex. App.—Austin May 19, 2017)
• Foreseeability: “Maya did not assert in its motion for JNOV that the evidence was legally insufficient to support the jury’s finding that Lopez-Rodriguez’s injuries were foreseeable. It, therefore, failed to preserve that argument for appellate review.” Maya Walnut, LLC v. Lopez-Rodriguez, No. 05-16-00750-CV, 2017 Tex. App. LEXIS 4115, at *15 (Tex. App.—Dallas May 3, 2017)
• Joinder: “In his first point of error, Brown also argues, in the alternative, that the substance of this case is a partition action and the laws and rules governing partition suits required joinder in this case. However, by failing to raise this argument before the trial court, Brown failed to preserve it for our review on appeal. See Tex. R. App. P. 33.1(a).” Brown v. Snider Indus, LLP., No. 06-16-00078-CV, 2017 Tex. App. LEXIS 4459, at *4 n.4 (Tex. App.—Texarkana May 17, 2017)
• Jury Charge: “In his fourth appellate issue, Mr. de los Santos argues the trial court’s judgment is void because the jury charge does not conform to the pleadings. Specifically, Mr. de los Santos contends the Commission did not plead that he violated Rule 1.14(a) by failing to keep funds belonging to the Martinezes separate from his own. A complaint to a jury charge is waived unless it is presented to the trial court by specific objection. TEX. R. CIV. P. 272, 274; TEX. R. APP. P. 33.1(a)(1). Thus, to preserve a jury-charge complaint a party must make the trial court “aware of the complaint, timely and plainly, and obtain[ed] a ruling.” . . . . The record does not reflect that Mr. de los Santos objected to this alleged jury-charge error. For this reason, Mr. de los Santos waived this complaint on appeal.” De Los Santos v. Comm’n for Lawyer Discipline, No. 04-16-00065-CV, 2017 Tex. App. LEXIS 4485, at *13 (Tex. App.—San Antonio May 17, 2017)
• Multifarious: “In her multifarious seventh issue, Serafine complains about a charge instruction and various evidentiary rulings of the trial court. However, she has not preserved error with respect to any of these complaints:” Serafine v. Blunt, No. 03-16-00131-CV, 2017 Tex. App. LEXIS 4606, at *24 (Tex. App.—Austin May 19, 2017)
• Personal Jurisdiction: “Moreover, the record shows that the mother waived any challenge to personal jurisdiction by making a general appearance in the proceeding. Generally, by appearing before the court, a party indicates that she submits to the court’s jurisdiction. See Tex. R. Civ. P. 120; . . . . The mother generally appeared by filing a May 2007 motion to modify the judgment to reappoint her as managing conservator. That motion recites, “The Court has continuing, exclusive jurisdiction of this suit.” In addition, the mother actually participated in the proceeding [*13] through counsel. Before the termination proceeding started, the mother’s attorney represented to the trial court that he had been in contact with the mother and requested a continuance so that she could be present during the proceedings. When the trial court refused that request, counsel cross-examined witnesses, interposed objections, made affirmative requests on behalf of the mother, and presented argument in her defense during the proceeding. Counsel’s actions indicate his authority to act on the mother’s behalf, and the mother did not challenge counsel’s appearance in a post-trial motion. The record thus supports the exercise of personal jurisdiction over her and further shows that the mother waived any challenge to personal jurisdiction.” In re S.M.S., No. 01-16-00997-CV, 2017 Tex. App. LEXIS 4339, at *12-13 (Tex. App.—Houston [1st Dist.] May 11, 2017)
• Standard of Care: “Maya did not argue in either its motion for JNOV or its motion for new trial that there was insufficient evidence to support the jury’s finding that Maya breached the appropriate standard of care, it has failed to preserve this argument for appellate review. See Tex. R. App. P. 33.1(a).” Maya Walnut, LLC v. Lopez-Rodriguez, No. 05-16-00750-CV, 2017 Tex. App. LEXIS 4115, at *14 (Tex. App.—Dallas May 3, 2017)
• Summary Judgment: “While in an early pleading entitled “Plaintiff’s [*14] Supplement Response to Defendant’s Greg Guernsey and the City of Austin’s Original Answer” Draper mentions that he will “supplement inverse condemnation as a cause of action” when he files an amended petition, his live “Final Amended Petition” does not mention or assert any claims for inverse condemnation. Even assuming that his earlier “Supplement Response” could be considered an amended petition, it was fully supplanted by his later-filed Amended Petition, which did not allege any takings claim. . . . . Because Draper does not allege a takings claim in his live pleading, he may not rely on such a claim as a ground for reversing the summary judgment on appeal, and we overrule his third issue.’ Draper v. Guernsey, No. 03-16-00745-CV, 2017 Tex. App. LEXIS 4496, at *13-14 (Tex. App.—Austin May 18, 2017)
• Summary Judgment: “Appellant argues he raised a fact issue, asserting he actually filed the petition on March 23, which would have made the petition timely. But appellant, in his response to the amended motion, did not present [*5] this argument. In fact, as stated previously, he did not respond to this ground at all. With the exception of challenging the legal sufficiency of a summary judgment, a non-movant is required to expressly present in his response those issues he contends avoids the movant’s entitlement to summary judgment. . . . By failing to make this argument in his response to the amended motion for summary judgment, we conclude it is waived.” Carter v. City of Garland, No. 05-16-00903-CV, 2017 Tex. App. LEXIS 4463, at *4-5 (Tex. App.—Dallas May 16, 2017)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation Update, May 7, 2017

May 7, 2017

Dear All:

I got behind again, so I’ll not list all the cases where courts decided that parties failed to preserve error for all the routine reasons:  untimely, no ruling, no complaint was made, the complaint made on appeared differed from that raised at the trial court.  But that leave plenty to consider over the last few weeks.

For example, the Supreme Court weighed in on error preservation twice recently, once in the summary judgment context, where it reminded us that you cannot base your argument on one authority in the trial court, and then base your argument on appeal on another authority.  This is long, but worth it:

• Summary Judgment:
  • “To preserve error a party must present “the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A). And to obtain summary judgment, a movant must “state the specific grounds” entitling it to summary judgment. Tex. R. Civ. P. 166a(c). Undergirding these rules is the principle that the trial court should have the chance to rule on issues that become the subject of the appeal.
  • The only sentence from ETC’s motion that could possibly preserve its temporary-period argument is the [*8] statement outlining ground two: “Harris County Appraisal District does not have jurisdiction to appraise the property since the taxing units served by the Appraisal District are without jurisdiction to tax the property.” The body of the motion, the prayer for relief, and the accompanying affidavits were devoted entirely to discussion of the Commerce Clause. Though ETC does not say so expressly, implicit in its argument is the concept that “jurisdiction to tax” must necessarily point to the sections of the Tax Code containing the temporary-period requirement. True, Section 11.01(c)(1) does speak of the temporary-period requirement in jurisdictional terms. Tex. Tax. Code. § 11.01(c)(1) (explaining that the “state has jurisdiction to tax” personal property “located in this state for longer than a temporary period”). But though a reference to taxing jurisdiction can refer to the temporary-period requirement, it does not mean that ETC’s motion used the term for that purpose. After all, jurisdiction “‘is a word of many, too many, meanings.'” In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 305 (Tex. 2010) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)).
  • Which of the many meanings did ETC use as the basis for its motion? The answer is in the motion itself, where ETC provided a decidedly federal explanation for the term:
    • [I]f Federal law makes a thing [*9] exempt from taxation, any inconsistent state law, or one which ‘impedes’ the free movement of commerce among the several states just yield, thus depriving the State (and any of its various political subdivisions, such as [the appraisal district]) of jurisdiction to tax or attempt to tax that which Federal law deems non-taxable by the states.
  • This passage—which contains the only other mention of jurisdiction in the motion—clears up all ambiguity about ETC’s use of the term. ETC articulated that federal law (the Commerce Clause), not the Texas Tax Code, deprived HCAD of jurisdiction. To hold otherwise would require us to assume the trial judge ignored the movant’s own explanation of the term. ETC cannot devote an entire motion to one federal argument and seek to argue a distinct state-law position on appeal by relying on a term that is ambiguous in isolation. Context matters. And in the context of this motion there is no question that ETC failed to present the temporary-period ground at all, let alone specifically. Accordingly, ETC waived any complaint on appeal involving Sections 11.01(c) and 22.01(a) of the Tax Code. See D.R. Horton-Tex., Ltd. v. Markel Intern. Ins. Co., Ltd., 300 S.W.3d 740, 743 (Tex. 2009) (“In summary judgment practice, ‘issues not expressly presented to the trial court by written motion, [*10] answer or other response shall not be considered on appeal as grounds for reversal.'”) (quoting Tex. R. Civ. P. 166a(c)).” ETC Mktg. v. Harris Cnty. Appraisal Dist., No. 15-0687, 2017 Tex. LEXIS 413, at *7 (Apr. 28, 2017)
• The Supreme Court has also pointed out that an objection that a jury question was immaterial may be raised for the first time post-verdict:
  • Jury Charge: “We conclude that the jury’s answer to Question 3 is immaterial, such that BP was not required to object at the charge conference. As we have already explained, the submission of Questions 3 and 4 was improper because Question 3 asked the jury to determine capability of production in paying quantities on a different date from that required by the lease’s shut-in clause and after retroactive constructive production under the shut-in clause took effect. BP preserved error on the immateriality issue by raising these concerns post-verdict in a motion for judgment in disregard, in a motion for judgment notwithstanding the verdict, and in a motion for new trial.” BP Am. Prod. Co. v. Red Deer Res., LLC, No. 15-0569, 2017 Tex. LEXIS 410, at *31 (Tex. Apr. 28, 2017)

Here is how you preserve a complaint that the trial court erred in denying your challenge of a juror for cause:

• Jury: “At the outset, we note that Talley properly preserved his jury selection complaint for appellate review. After the trial court denied Talley’s challenges for cause to certain venire members, Talley used his preemptory strikes to strike these members from the jury. He then identified venire members 7, 12, 17, 25, 27, 30, 32, 35, 36, 37 as objectionable jurors whom he would have struck from the panel had the trial court granted his challenges for cause. Because several of these objectionable venire members served on the jury, Talley has preserved this complaint for our review. See Cortez, 159 S.W.3d at 92-93.” In re Talley, No. 01-16-00572-CV, 2017 Tex. App. LEXIS 3833, at *8 (Tex. App.—Houston [1st Dist.] Apr. 27, 2017)

Some complaints can be raised for the first time on appeal, like the failure to authenticate a contract and the disqualification of a judge:

• Contract: “Second, Remedy argues that relators have waived their complaint that the purported contract has not been authenticated because the record does not show that relators objected to the purported contract on this basis in the trial court. However, a complete absence of authentication is a defect of substance that is not waived by a party’s failure to object, and may be raised for the first time on appeal.” In re McQuaide, No. 14-17-00272-CV, 2017 Tex. App. LEXIS 3612, at *4 (Tex. App.—Houston [14th Dist.] Apr. 25, 2017)
• Judge: “Flores argues that St. Cosmas waived this issue because its objection was “never presented” and was “never ruled upon.” We disagree that the issue is waived.  An assigned judge’s disqualification is mandatory when a timely objection is filed to his or her appointment under section 74.053 of the government code. Flores, 932 S.W.2d at 501. And “disqualification of a judge is a jurisdictional issue that cannot be waived.”” St. Cosmas Corp. v. Flores, No. 13-15-00017-CV, 2017 Tex. App. LEXIS 3488, at *6 (Tex. App.—Corpus Christi Apr. 20, 2017)

It is my instinct that the dissent got this one right in terms of whether the party which wins on the motion to compel can point out that the court of appeals cannot consider evidence which was untimely filed, without leave, by their opponent:

• Discovery: “The Plaintiffs also argue the current case differs from the Goodyear case because the plaintiffs in Goodyear did not object to the defendant’s affidavits, whereas the Plaintiffs here claim they “objected extensively, obtained express rulings, and offered abundant contrary evidence” in response to the Griffith declaration attached to Goodyear’s response to the Plaintiffs’ motion to compel. The record does not support the Plaintiffs’ claim. At the November 4 hearing, the Plaintiffs’ counsel stated the Griffith declaration “is a totally conclusory affidavit, by the way. It does not explain anything in detail. It’s an objectionable conclusory affidavit.” However, insofar as this was an objection to the declaration, the Plaintiffs did not obtain a ruling regarding the alleged conclusory nature of the declaration. Further, the Plaintiffs [*15] made no objection at the November 4 hearing regarding the timeliness of the Griffith declaration. The Plaintiffs argue that the trial court implicitly granted a timeliness objection by stating in the December 2, 2015 order that the court had “considered the motion, timely evidence, responses, arguments, and objections.” However, the Plaintiffs did not raise a timeliness objection at the November 4 hearing and nothing stated by the trial judge at that hearing indicated he was making an evidentiary ruling excluding the Griffith declaration from consideration. Therefore, the Griffith declaration was before the trial court when it ruled upon the Plaintiffs’ motion.” In re Goodyear Tire & Rubber Co, No. 04-16-00590-CV, 2017 Tex. App. LEXIS 3676, at *14-15 (Tex. App.—San Antonio Apr. 26, 2017)
  • Dissent: “Furthermore, the majority’s apparent reliance [*19] on Texas Rule of Appellate Procedure 33.1 is misplaced. Rule 33.1 requires a party to object as a prerequisite for presenting a complaint for appellate review. See Tex. R. App. P. 33.1. Rule 33.1’s preservation rule applies only to a party seeking to alter or modify the trial court’s order or judgment. . . . Plaintiffs are not seeking to alter or modify the trial court’s order, Goodyear is. Thus, the majority errs by requiring the plaintiffs, who agree with the trial court’s ruling, to have objected to the untimely evidence. See id. The majority erroneously establishes a presumption that all evidence is before the trial court unless there is an objection to the evidence as untimely and a ruling on that objection. The Supreme Court of Texas has held an untimely filed affidavit—without some indication that the trial court granted leave to file untimely evidence—”was not properly before the trial court” in the summary judgment context. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). This court has held that a logical extension of this rule is that parties “[a]re not required to object to [a] response as untimely filed.” Neimes v. Ta, 985 S.W.2d 132, 138 (Tex. App.—San Antonio 1998, pet. dism’d by agr.). Without any substantive discussion, the majority creates new law and recognizes a contrary rule for a nearly identical set of circumstances.” In re Goodyear Tire & Rubber Co, No. 04-16-00590-CV, 2017 Tex. App. LEXIS 3676, at *18-19 (Tex. App.—San Antonio Apr. 26, 2017)

Here is another court of appeals which holds, as do most courts, that a party can raise for the first time on appeal the failure of a temporary injunction order to comply with Rule 683:

• Temporary Injunction: “The temporary injunction order signed by the trial court did not set the cause for trial on the merits and, therefore, failed to comply with rule 683. Famous Koko, however, contends Member 1300 Oak waived the requirement that the temporary injunction set the cause for trial on the merits by failing to object to the deficiency in the trial court. This Court has previously concluded the failure of a temporary injunction order to meet the requirements of rule 683 “renders the order fatally defective and void, whether specifically raised by point or error or not.” Leighton v. Rebeles, 343 S.W.3d 270, 273 (Tex. App.—Dallas 2011, no pet.) . . . . Accordingly, Member 1300 Oak may assert on appeal that the temporary injunction order fails to meet the requirements of rule 683.” Member 1300 Oak, LLC v. Famous Koko, Inc., No. 05-16-01287-CV, 2017 Tex. App. LEXIS 3315, at *2-3 (Tex. App.—Dallas Apr. 13, 2017)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases April 8, 2017

April 8, 2017

Dear All:

The Supreme Court weighed in again on error preservation this last week, holding that one party’s “objections [to the charge] were sufficient to make clear its position that contractual damages are independent from statutory damages and must be based on a finding that USAA breached the policy,” and that when an “argument raises a purely legal issue that does not affect the jury’s role as fact-finder” a party preserves “the argument by asserting it as a ground for its motion for judgment based on the jury’s verdict”:

• Jury Charge: “The parties agree that the damages the jury found in response to Question 3 represent the amount of insurance policy benefits the jury concluded USAA “should have paid” to Menchaca. USAA contends that Menchaca cannot recover any amount of policy benefits because the jury failed to find that USAA breached its obligations under the policy. Although the jury did find that USAA violated the Insurance Code, USAA contends that Menchaca cannot recover policy benefits based on [*6] that finding alone. N. 8 N. 8. Menchaca argues that USAA waived this argument because it (1) did not object that Question 2 was not predicated on a “yes” answer to Question 1; (2) did not request an instruction that the jury should answer “no” to Question 2 if they answered “no” to Question 1; (3) did not object to Question 2 on the ground that it imposed liability without a finding that Menchaca was entitled to benefits under the policy; and, (4) did not object to Question 3 on the ground that it permitted a recovery of policy benefits without a finding that Menchaca was entitled to benefits under the policy. USAA did object to Question 3, however, on the ground that the question impermissibly combined “contractual damages from Question 1 and statutory damages from Question 2, [because] Texas courts have held that extra[-]contractual damages need to be independent from policy damages.” USAA complained that submitting just one damages question for all damages arising either under the policy or under the statute or both would make it “unclear potentially if we get ‘yes’ answers to [Questions] 1 and 2 what the damages are based on.” We conclude that USAA’s objections were sufficient to make clear its position that contractual damages are independent from statutory damages and must be based on a finding that USAA breached the policy. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (holding that an objection should make “the trial court aware of the complaint, timely and plainly”). We also conclude that USAA’s argument raises a purely legal issue that does not affect the jury’s role as fact-finder, and that USAA thus preserved the argument by asserting it as a ground for its motion for judgment based on the jury’s verdict. . . . Because USAA raises a purely legal argument that the jury’s failure to find a contractual breach precludes Menchaca from recovering policy benefits as a matter of law, USAA preserved error by raising the argument in its motion for judgment.” USAA Tex. Lloyds Co. v. Menchaca, No. 14-0721, 2017 Tex. LEXIS 361, at *6 n.8 (Tex. Apr. 7, 2017)

Here are examples of courts holding that parties preserved the objections to an expert report, to legal and factual insufficiency, and to a bankruptcy stay in the summary judgment context:

• Expert Report: “Appellant asserts that appellees’ failure to mention the denial-of-water theory in this paragraph, or to mention it specifically elsewhere in the document, meant appellees waived their objections to the report concerning that theory of liability. We disagree. This portion of the document was an introductory section intended to inform the court about the matter before it. Appellees’ “summary of Plaintiff’s claims” was a summary (albeit inaccurate) of appellant’s petition as shown by appellees’ citation to the [*17] petition. The statement was not part of appellees’ objections to the report. Appellees actual objections were later in the document . . . . These objections identified the deficiencies in the report. Appellees did not limit their objections to appellant’s causes of action based on Devinney’s misrepresentations. These objections applied to appellant’s claims for failure to provide water as much as they applied to appellant’s claims for misrepresentations.” Alsup v. Hickory Trail Hosp., No. 05-16-00527-CV, 2017 Tex. App. LEXIS 2348, at *16-17 (Tex. App.—Dallas Mar. 20, 2017)
• Sufficiency: “The State initially contends that Dever failed to preserve his argument for appeal, but in his motion for new trial, Dever argued that there is no evidence or insufficient evidence to support the jury’s finding and that no authority supports Dr. Self’s opinion about Dever’s sexual deviance, which encompassed the testimony about the challenged diagnosis. Dever therefore preserved his issue for appellate review. See Tex. R. Civ. P. 324(b)(2);” In re Commitment of Dever, No. 02-16-00276-CV, 2017 Tex. App. LEXIS 2527, at *2 n.1 (App.—Fort Worth Mar. 23, 2017)
• Summary Judgment: “We conclude that discovery was stayed under chapter 74 when the trial court’s expert witness designation deadline passed because the amended expert report had not yet been served and there had not yet been a final judicial determination that the amended expert report was adequate. N. 11 n. 11 Kindred argues that appellants failed to preserve error on this argument by not raising it in their response to the motion for summary judgment. We disagree. In their response, appellants complained that the trial court had “yet to decide” whether their amended expert report was adequate. Moreover, appellants raised the issue in their motion for new trial. The trial court signed an order denying the motion for new trial stating that the trial court had “heard” the motion.” Harvey v. Kindred Healthcare Operating, Inc., No. 14-15-00704-CV, 2017 Tex. App. LEXIS 2488, at *6 n.11 (Tex. App.—Houston [14th Dist.] Mar. 23, 2017)

Here is one of the very rare cases which holds that a trial court has implicitly ruled on an evidentiary objection by granting summary judgment–and this rare ruling arises out of an even rarer summary judgment tactic:

• Summary Judgment: “In today’s case, the T3 Parties arguably presented the Stroke Statement as part of the summary-judgment evidence attached to their motion, while simultaneously complaining in a summary-judgment ground that the Stroke Statement is inadmissible hearsay. Okpere attached [*10] the same deposition testimony regarding the Stroke Statement to his summary-judgment response. The T3 Parties did not formally object or move to strike this evidence. Nevertheless, when the trial court granted the T3 Parties’ summary-judgment motion without specifying the grounds upon which the court granted the motion, the trial court implicitly granted judgment based on each of the grounds, including the ground that Okpere bases his claim solely on the Stroke Statement, which is inadmissible hearsay.  . . . We conclude that by its implicit ruling, the trial court determined that the Stroke Statement is inadmissible hearsay and sustained the T3 Parties’ argument that the trial court should not consider evidence of the Stroke Statement in determining whether to grant summary judgment. . . .  Because the T3 Parties presented this complaint to the trial court and obtained an implicit ruling, they did not waive this complaint, and we may not consider this evidence as part of the summary-judgment evidence unless we conclude the trial court erred in making this determination. . . . ” Okpere v. Nat’l Oilwell, No. 14-15-00694-CV, 2017 Tex. App. LEXIS 2353, at *9 (Tex. App.—Houston [14th Dist.] Mar. 20, 2017)

Subject matter jurisdiction can be raised for the first time on appeal:

• Subject Matter Jurisdiction: “We review questions [*8] of subject-matter jurisdiction de novo. This inquiry is not necessarily confined to the precise jurisdictional challenges or arguments presented by the parties, because jurisdictional requirements may not be waived and “can be—and if in doubt, must be—raised by a court on its own at any time,” including on appeal. Accordingly, the discussion that follows departs somewhat from the parties’ own framing of the jurisdictional issues.” Hart v. Util. Assocs., Nos. 03-16-00565-CV, 03-16-00586-CV, 2017 Tex. App. LEXIS 2548, at *7-8 (Tex. App.—Austin Mar. 24, 2017)

Remember, if you provide the trial court with a offer of proof, actually offer the testimony into evidence and get a ruling on your offer.

• Evidence: “Nathanial Moran represented Great Northern in connection with its dispute regarding money due to Circle Ridge under the promissory note. After Circle Ridge and Stephens passed Moran as a witness, Great Northern asked the trial court if it could ask him a question outside of the jury’s presence. The trial court agreed, and Great Northern questioned Moran during an offer of proof. Moran testified that he believed Searle only represented Circle Ridge during the foreclosure proceedings. After Moran was questioned, Great Northern passed him as a witness, but did not seek to admit his testimony and did not ask the trial court to rule on whether his testimony was admissible. “To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court.” In re R.N., 356 S.W.3d 568, 572 (Tex. App.—Texarkana 2011, no pet.) (quoting Lister v. Walters, 247 S.W.3d 381, 383 n.1 (Tex. App.—Texarkana 2008, no pet.)). In R.N., we explained that counsel must offer the testimony of a witness obtained during an offer of proof in order to preserve error. Id. As in R.N., “although the record of the intended testimony was made, no request was made of the court to allow the introduction of that testimony. The trial court did not rule on the admissibility of the testimony because [*35] it had not been offered.” Id. Thus, because the trial court did not rule “‘on the request, objection, or motion, either expressly or implicitly,’ or did not refuse ‘to rule on the request, objection, or motion,'” Great Northern failed to preserve the issue of alleged error in the failure to admit Moran’s testimony.22Link to the text of the note Id. (quoting Tex. R. App. P. 33.1). Similarly, Great Northern also failed to preserve its point of error that the trial court erred in excluding Mike’s testimony “regarding the financial and business relationship between Kevin Stephens and Chad Hamilton” and testimony regarding Stephens’ “role in the disappearance of equipment sold to Great Northern for use on the leases.” The testimony was obtained by an offer of proof, after which Great Northern “passed the witness” and did not request the trial court to include any of the testimony. Accordingly, the trial court did not rule on the admissibility of this testimony, and any error on this point is not preserved.” Great N. Energy, Inc. v. Circle Ridge Prod., No. 06-16-00015-CV, 2017 Tex. App. LEXIS 2415, at *34 (Tex. App.—Texarkana Mar. 22, 2017)

Your complaint must be timely:

• Admissions: “Sullivan also waived his right to challenge the deemed admissions for the first time in his motion for new trial. . . . Portable Storage’s motion for summary judgment placed Sullivan on notice of his failure to comply with discovery Rule 198.2(c) and the resulting deemed admissions. See Tex. R. Civ. P. 198.2(c); . . . Sullivan knew of his mistake prior to the trial court’s judgment and could have responded to the motion for summary judgment. Sullivan’s failure to do so resulted in waiver of his right to raise the issue, for the first time, in his motion for new trial.” Sullivan v. Portable Storage of Minn., Inc., No. 04-16-00132-CV, 2017 Tex. App. LEXIS 2649, at *5 (Tex. App.—San Antonio Mar. 29, 2017)

Your complaint must be sufficiently specific to make the trial court aware of it:

• Voir Dire: “To preserve a complaint for appeal, a party must lodge a timely objection that states “the grounds for the ruling that the complaining party [seeks] from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context,” and obtain an [*55] adverse ruling on the issue complained of on appeal. See Tex. R. App. P. 33.1(a)(1)(A). On appeal, Great Northern argues that the trial court allowed Stephens to use veniremember number 280 as an expert witness in violation of Rules 701 through 706 of the Texas Rules of Evidence. Nothing in the record indicates that Great Northern objected on the basis of Stephens attempting to interject expert evidence, and the record establishes that the trial court did not understand that any such objection was made. Because Great Northern did not raise the issue on appeal before the trial court, error is not preserved for our review.” Great N. Energy, Inc. v. Circle Ridge Prod., No. 06-16-00015-CV, 2017 Tex. App. LEXIS 2415, at *54-55 (Tex. App.—Texarkana Mar. 22, 2017)

You have to get a ruling on your objection–and don’t count on an implied ruling to suffice:

• Affidavit: “Blackall argues that Anderson’s affidavit is not evidence supporting the motion to compel arbitration because it is hearsay, conclusory and vague, and was not mentioned at the hearing on the motion to compel. But although Blackall [*16] argued in its response to the motion to compel that Anderson’s affidavit was hearsay, it did not obtain a ruling from the trial court on this objection. Consequently, Blackall waived appellate review of his hearsay objection. See Tex. R. App. P. 33.1(a).” MAPP Constr., LLC v. BlackAll Mech., Inc. (In re Jason Signor), No. 05-16-00703-CV, 2017 Tex. App. LEXIS 2347, at *15-16 (Tex. App.—Dallas Mar. 20, 2017)
• Affidavit: “On our record, the trial court never actually ruled on the motion to strike [the affidavit in the summary judgment response]. An objection based on the sham affidavit rule is an attack on the form of the affidavit, and not its substance, such that it must be first addressed by the trial court. . . . Failure to obtain that ruling waives the evidentiary objection. . . . see Tex.R.App.P. 33.1; . . .Pecos County essentially asks that we find an implicit ruling [on the motion to strike] based on Frazier. We first note that several courts have criticized the holding in Frazier. . . . We decline to follow Frazier here for a number of reasons. First, the language of this order differs from that in Frazier. Bates (or the trial court) would not have been put on fair [*13] notice that Pecos County was submitting an order which implicitly granted the motion to strike when the County’s form order used similar, but not identical language to that in Frazier. Second, the trial judge asked each party for a respective order granting or denying the motion for summary judgment, and not the separate motion to strike. Finally, if the trial court was intending to sustain an objection, it is unclear which objection was sustained. The affidavit in our record was filed seven months before the hearing, but another affidavit by Bates, which is not of record, was apparently filed the day before the hearing. The County filed a separate motion to strike that second affidavit. We agree with another Fort Worth Court of Appeals opinion which states: [w]hen we cannot determine what implied ruling is to be inferred, we cannot expect the parties to be able to do so.” Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 498 (Tex.App.–Fort Worth 2002, no pet.). Accordingly, for the purposes of our review, we consider the affidavit and decline to address the merits of that portion of Bates’ first issue which assumes the trial court struck the affidavit.” Bates v. Pecos Cnty., No. 08-15-00100-CV, 2017 Tex. App. LEXIS 2722, at *8 (Tex. App.—El Paso Mar. 29, 2017)
• Voir Dire: “Veniremember number 217 is an attorney. During voir dire, Stephens’ counsel asked her why documents are notarized. Veniremember number 217 responded that documents are notarized “to legitimize the person, that that’s who actually signed the document.” After veniremember number 217 gave this answer, Great Northern approached the bench and argued that Stephens was “not asking the proper factual question to the jury . . . [and was] trying to bolster his case.” Stephens’ counsel responded, “Judge, I haven’t talked about a single fact of this case,” Great Northern replied, “That is where he’s going,” and the trial court simply stated, “I have to wait to see.” . . . . On appeal, Great Northern does not argue that the trial court erred in overruling his objection that venireperson number 217’s testimony invaded the province of the trial court. Instead, Great Northern only argues the issue of bolstering. In order to preserve error on this point, Great Northern is required to demonstrate that it either obtained a ruling on the issue of bolstering or that the trial court refused to rule on the matter after Great Northern objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); . . . Here, the record establishes [*53] that Great Northern did not obtain a ruling from the trial court on the issue of bolstering. Although it secured a ruling that venireperson number 217’s testimony invaded the province of the court, “a party’s complaint on appeal must comport with the objection made at trial.” Lee v. Holoubek, No. 06-15-00041-CV, 2016 Tex. App. LEXIS 4803, 2016 WL 2609294, at *5 (Tex. App.—Texarkana May 6, 2016, no pet.) (mem. op.); . . . .We find that Great Northern did not preserve its complaint that venireperson number 217’s answers during voir dire were used to bolster Stephens’ case. Accordingly, this point is overruled.” Great N. Energy, Inc. v. Circle Ridge Prod., No. 06-16-00015-CV, 2017 Tex. App. LEXIS 2415, at *50-53 (Tex. App.—Texarkana Mar. 22, 2017)

You must raise in the trial court the argument you raise on appeal:

• Jury Charge: “In its third and final issue, B&P argues the trial court submitted an improper measure of damages to the jury because the proper measure of damages for its encroachment is permanent damage to land or the reduction in market value immediately before and immediately after the encroachment. . . . Knighthawk counters that B&P has waived its complaint on appeal by failing to submit a correctly worded instruction on the proper measure of damages and by failing to specifically and timely object to the measure of damages the trial court submitted. Rule 278 provides that “[f]ailure 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.” See Tex. R. Civ. P. 278. Rule 274 requires that “[a] party objecting to a jury charge must point out distinctly the objectionable matter and the grounds of the objection.” See Tex. R. Civ. P. 274. Knighthawk counters that B&P failed to plainly argue that the jury should only consider a permanent measure of damages and also failed to submit a “substantially correct” instruction on permanent damages. We agree. B&P filed written objections to Question No. 2, but none of [*16] the objections indicated to the trial court that the encroachment injury was permanent. . . . Because B&P did not specifically make the trial court aware of the objection it now brings on appeal, we hold it has waived the objection. See Tex. R. App. P. 33.1. Accordingly, we overrule B&P’s third issue.” B&P Dev., LLC v. Knighthawk, LLC, No. 04-15-00575-CV, 2017 Tex. App. LEXIS 2650, at *13-17 (Tex. App.—San Antonio Mar. 29, 2017)
• Motion for Protective Order: “In Hancock’s final issue, she complains that Worbington’s application failed to comply with the statutory requisites of the Texas Family Code. . . . Texas Family Code section 82.0085 [requires] . . . .an application “must include . . . a copy of the previously rendered protective order attached to the application” and “a description of the threatened harm that reasonably places the applicant in fear of imminent physical harm, bodily injury, assault[,] or sexual assault.” Tex. Fam. Code § 82.0085(a). It is undisputed that Worbington did not attach a copy of the first protective order to her application. However, it is likewise undisputed that Hancock did not voice any complaints about the sufficiency of Worbington’s protective-order application [*12] in the trial court. . . .Because Hancock did not raise this complaint in the trial court, she has not preserved it for our review. See Tex. R. App. P. 33.1(a)(1).” Hancock v. Worbington, No. 14-15-00964-CV, 2017 Tex. App. LEXIS 2714, at *11-12 (Tex. App.—Houston [14th Dist.] Mar. 30, 2017)
• Incorporation by Reference: “Here, the nonsignatory defendants argue that Santander did not preserve its incorporation-by-reference argument for appeal by first raising it in the trial court. To preserve error for appeal, the argument made in the trial court must comport with the argument made on appeal. See Tex. R. App. P. 33.1(a);. . . . Santander concedes that it did not “explicitly address” the incorporation-by-reference theory in its motion to compel arbitration but asserts that it raised the theory at the hearing on the motion. However, our review of the portions of the record cited by Santander in support of its contention that it raised the theory at the hearing show that it did not do so. Specifically, the portions cited by Santander do not include an argument that any of the relevant agreements incorporate any other agreements by reference. Rather, Santander conceded at the hearing that the nonsignatory defendants did not enter into agreements with arbitration clauses and did not know about the arbitration clause between Santander [*7] and Mata but argued that the nonsignatory defendants should have known about the Sale Contract because they “were acting as repossessors,” knew “that there was a secured transaction,” and knew that they “were being tasked with repossessing the collateral.” This argument is not an argument asserting an incorporation-by-reference theory. . . . because Santander did not raise the argument in the trial court that it now raises on appeal, it has not preBserved this issue for our review. See Tex. R. App. P. 33.1(a);” Santander Consumer USA, Inc. v. Mata, No. 03-14-00782-CV, 2017 Tex. App. LEXIS 2631, at *6-7 (Tex. App.—Austin Mar. 29, 2017)
• Sanctions: Appellants first argue that the sanctions order is defective because it does not sufficiently state the basis for the sanction. See Tex. Civ. Prac. & Rem. Code Ann. § 10.005 (West 2002) (court must describe conduct that violated statute and explain basis for sanction); Tex. R. Civ. P. 13 (order must contain “the particulars” of good cause for issuing sanction). Appellants, however, did not present this complaint to the trial court to afford the trial court the opportunity to correct any error. See Tex. R. App. P. 33.1(a). Although appellants filed a motion for new trial in which they [*12] argued that the sanctions order was not supported by sufficient evidence, they did not argue that the sanctions order failed to comply with specificity rules. As a result, we conclude that this issue was not preserved for appellate review.” Kamel v. Advocare Int’l, L.P., No. 05-16-00433-CV, 2017 Tex. App. LEXIS 2635, at *11-12 (Tex. App.—Dallas Mar. 28, 2017)

You have to raise your complaint in the trial court:

• Ambiguity: “In his reply brief, Le argues for the first time that the Original Release is an unambiguous, unilateral contract between the parties that must be enforced as written. Because Le did not raise this argument in the trial court or in his opening brief, the argument is waived and we do not address it. See Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Le does not argue that the language in the Original Release acknowledging payment in full alone created a fact issue precluding summary judgment on the sworn account claim, and we express no opinion on that question. Thanh Le v. N. Cypress Med. Ctr. Operating Co., No. 14-16-00314-CV, 2017 Tex. App. LEXIS 2874, at *12 n.4 (Tex. App.—Houston [14th Dist.] Apr. 4, 2017)
• Anti-SLAAP: “In its reply brief, QTAT asserts, under section 27.001(4)(C) of the Texas Citizens Participation Act, that its exercise of the right to petition is “a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4)(C). QTAT did not raise—in the trial court or in its opening brief in this court—the argument that the Neese disclosures implicate the right to petition under section 27.001(4)(C). QTAT, having waived its 27.001(4)(C) argument, cannot now rely on it as a basis for coming within the Act.” QTAT BPO Solutions, Inc. v. Lee & Murphy Law Firm, G.P., No. 14-16-00148-CV, 2017 Tex. App. LEXIS 1861, at *17 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017)
• Constitution: “In her final issue, the mother argues that her constitutional and statutory rights were violated when the associate judge initially denied the mother’s requests for a court-appointed attorney. See Fam. § 107.013(a)(1). At the time of the trial de novo, the mother had been represented by court-appointed counsel for almost eleven months. Counsel did not object to the untimely appointment but, instead, announced ready for trial. Consequently, we do not believe that the mother has preserved the issue for review. See Tex. R. App. P. 33.1(a);” In the Interest of R.S., No. 11-16-00291-CV, 2017 Tex. App. LEXIS 2592, at *10 (Tex. App.—Eastland Mar. 28, 2017)
• Constitution: “In their fifth issue, appellants assert the temporary injunction should be vacated or modified because it imposes an unconstitutional prior restraint on speech. Tenants respond that appellants did not preserve this issue for appellate review because they did not raise their constitutional challenge in the trial court. The record fails to show that this complaint was brought to the trial court’s attention. Because the constitutional argument was not presented to the trial court, this issue has not been preserved for appellate review. Tex. R. App. P. 33.1(a);” Topletz v. City of Dall., No. 05-16-00741-CV, 2017 Tex. App. LEXIS 3064, at *13-14 (Tex. App.—Dallas Apr. 6, 2017)
• Evidence: “Miller further complains that the trial court erred when it permitted the State to ask him if he had ever been accused of sexually assaulting two other children, but these questions were not the subject of an objection. Miller contends that during his examination by the State, the trial court allowed inadmissible hearsay concerning an alleged incident said to have occurred a few months before the trial, when police investigated Miller for allegedly peeping into his neighbor’s yard. However, Miller did not make a hearsay [*5] objection when the questions were asked. Therefore, he failed to preserve error. See Tex. R. Evid. 103(a).” In re Miller, No. 09-15-00487-CV, 2017 Tex. App. LEXIS 2521, at *4-5 (Tex. App.—Beaumont Mar. 23, 2017)
• Insurance: “In his seventh and final issue, Jerry argues that the family member exclusion is void because the policy fails to clearly describe its effect. He contends that the average consumer would not understand the exclusion, would not know the amount of the “minimum limits of Liability Coverage,” would have trouble locating the Texas Motor Vehicle Safety Responsibility Act, and would have no idea from reading the policy whether the minimum limits are more or less than the amount of coverage set forth on the declarations page. Jerry thus argues that because the exclusion does not state that it covers claims by family members only to the extent of $25,000, the exclusion is unclear, ambiguous, void, and cannot be enforced. . . . Jerry does not dispute that he raises this issue for the first time on appeal but responds [*26] that he did not receive the endorsement that revised the exclusion and therefore asserted a different argument based on the language of the original policy exclusion and that only when the trial court found in the Amended Final Judgment that Endorsement 593E applies was the issue of the effect of the endorsement raised. However, the record reflects that in its motion for summary judgment, State Farm referred to “Texas Personal Auto Policy Amendatory Endorsement,” quoted its language, and attached a copy as an exhibit. In any event, because Jerry did not raise this issue in the trial court, we may not consider it on appeal.” Johnson v. State Farm Mut. Auto. Ins. Co., No. 03-16-00086-CV, 2017 Tex. App. LEXIS 2947, at *25-26 (Tex. App.—Austin Apr. 6, 2017)
• Jury Argument: “Outside of the presence of the jury, Great Northern agreed that $637,114.15 was “what the balance would be if there [was] no proper purchase.” On appeal, Great Northern complains that Circle Ridge “improperly argued to the jury that Great Northern ha[d] stipulated it owed the sum” without the qualification. During closing arguments, Circle Ridge informed the jury that Great Northern “stipulated that as of today, as we sit here, there are $637,114.15 still owed under this [promissory note].” Circle Ridge did not object to this closing argument. Thus, Great Northern has not preserved this point of error for our review. See Tex. R. App. P. 33.1.”  Great N. Energy, Inc. v. Circle Ridge Prod., No. 06-16-00015-CV, 2017 Tex. App. LEXIS 2415, at *56 (Tex. App.—Texarkana Mar. 22, 2017)
• Jury Charge: “On appeal, Great Northern argues that the trial court erred in the manner that it submitted the wrongful foreclosure issue to the jury because that “improperly shifted the burden of proof to Great Northern.” On the record, however, Great Northern only complained of the denial of its requested jury instructions, but stated affirmatively that it had no objections to the trial court’s submitted jury charge, including the wrongful foreclosure questions and instructions. Thus, it failed [*56] to preserve this issue for our review. Tex. R. App. P. 33.1(a)(1)(A);” Great N. Energy, Inc. v. Circle Ridge Prod., No. 06-16-00015-CV, 2017 Tex. App. LEXIS 2415, at *55-56 (Tex. App.—Texarkana Mar. 22, 2017)
• Limitations: “It is an affirmative defense to assert that a claim is barred by the statute of limitations. Tex. R. Civ. P. 94. “The defendant thus bears the initial burden to plead, prove, and secure findings to sustain its plea of [*27] limitations.” Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). “A party waives the affirmative defense of statute of limitations if it is not pleaded or tried by consent.” Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Tomlinson did not plead the application of the statute of limitations as an affirmative defense. Nor did he attempt to secure a ruling on it until his motion for judgment notwithstanding the verdict. Accordingly, the issue was waived.” Khoury v. Tomlinson, No. 01-16-00006-CV, 2017 Tex. App. LEXIS 2758, at *26-27 (Tex. App.—Houston [1st Dist.] Mar. 30, 2017)
• Receivership: “In their fourth issue, appellants assert the temporary injunction imposes a de facto receivership on the appellants’ properties by taking away appellants’ ability to manage and control their properties and giving that authority to the court. Tenants respond that this issue was not presented to the trial court and thus, has not been preserved for appeal. . . . At the hearing on the application [*14] for temporary injunction, appellants did not argue that a temporary injunction would impose a de facto receivership on their properties. As a result, we conclude that appellants’ fourth issue was not preserved for appellate review. We resolve appellants’ fourth issue against them.” Topletz v. City of Dall., No. 05-16-00741-CV, 2017 Tex. App. LEXIS 3064, at *13-14 (Tex. App.—Dallas Apr. 6, 2017)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation, March 24, 2017

March 22, 2017

Dear All:

Don’t pay the ransom, I’ve escaped.  I got a little behind, and it has taken me this long to catch up.  But the interesting thing about the last month or so is how many decisions the Supreme Court has issued dealing with error preservation, and how many decisions have held that error was preserved.  There was so much of this kind of activity, that I’ve decided to deal only with those kinds of cases, and not report on the standard fare (i.e., cases which held that error is not preserved if not raised, not raised timely, etc.).

First, the Supreme Court rulings.  The Supreme Court weighed in on several error preservation issues the last few weeks; normally, the Court does not weigh in on cases which involve an error preservation issue. In these cases, the Court held:

• that an objection as to a Certificate of Merit affidavit can be preserved “in written pleadings before the hearing [on the motion to dismiss] and again [though argument made] at the hearing on the motion to dismiss;”
• that by objecting to omissions from a charge, and submitting a written question that includes those omissions, error as to the charge is preserved;
• that alleging that a party “knowingly” did something did not assert a claim for “aiding and abetting” against that party;
• that if our motion for summary judgment does not address the availability of a particular form of relief sought by one’s opponent, the appellate court cannot address whether your are entitled to summary judgment on that relief–even though the “availability” of that type of relief “was discussed at the hearing on the motion.”

Here are the pertinent portions of those opinions:

• Certificate of Merit: “Payne’s affidavit includes the following information about his competency and qualifications: ‘1. My name is Gary Payne. I am a professional architect who is registered to practice in the State of Texas, license number 11655. I have been a registered architect in Texas since 1980, and have an active architecture practice in the State of Texas today. 2. I am over the age of eighteen years, have never been convicted of a felony or crime of moral turpitude, and am otherwise competent to make this affidavit. I have personal knowledge of the facts contained in this affidavit. Those facts are true and correct.’ While the affidavit provides some of the relevant information, the architects point out that it does not provide [*11] any information about Payne’s knowledge of their area of practice as section 150.002(a)(3) requires. El Pistolón responds that Payne’s affidavit demonstrates the requisite knowledge, but that the architects waived the complaint in any event by failing properly to raise it in the trial court. The court of appeals did not agree. 500 S.W.3d at 434. The court observed that the architects questioned Payne’s knowledge of their area of practice both in written pleadings before the hearing and again at the hearing on the motion to dismiss where defense counsel “argued that Payne failed to state that he is knowledgeable in Levinson’s area of practice.” Id. We agree with the court of appeals that the issue of Payne’s knowledge of the architects’ area of practice was presented to the trial court and preserved for review. ” Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd., No. 15-0232, 60 Tex. Sup. Ct. J. 464, 2017 Tex. LEXIS 209, at *10-11 (Feb. 24, 2017)
• Jury Charge: “The complained-of statements were a matter of public concern, but the jury charge did not require Wade to prove them false. Neither did it require him to establish actual malice before obtaining punitive damages. The media defendants objected to the charge on these grounds. Indeed, they went further, submitting in writing proposed questions requiring Wade to prove falsity and actual malice. The media defendants raised the same point before the court of appeals, arguing that Wade had to prove falsity and actual malice because the article “reported on a matter of public concern.” The media defendants have preserved error, and [*14] the error is reversible.” Brady v. Klentzman, No. 15-0056, 60 Tex. Sup. Ct. J. 290, 2017 Tex. LEXIS 108, at *13-14 (Jan. 27, 2017)
• Pleadings: “Even though the court of appeals addressed the church’s aiding and abetting claim, Parker first asserts that the church waived the claim because it was not specifically pleaded in the trial court or addressed in the written response to Parker’s motion for summary judgment. He is correct that the terms aiding and abetting are not in the church’s petition or its response to Parker’s motion for summary judgment. As Parker correctly notes, [*22] a claim or allegation may not be raised for the first time on appeal. Stafford v. Stafford, 726 S.W.2d 14, 15 (Tex. 1987). Further, “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal” of a summary judgment. Tex. R. Civ. P. 166a(c). The church claims it preserved this issue by urging in the facts section of its pleadings that Parker “knowingly” participated in Lamb’s breach of fiduciary duty because Texas follows a fair-notice standard for pleading. Under that standard, courts consider whether the opposing party “can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). Stated somewhat differently, the fair-notice standard measures whether the pleadings have provided the opposing party sufficient information to enable that party to prepare a defense or a response. See Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532, 536 (Tex. 2013); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982). Claiming that Parker “knowingly” participated in Lamb’s breach of fiduciary duty does not give Parker information sufficient to understand that the church was asserting a claim for aiding and abetting. This is especially true because several of the other claims the church asserted—e.g. civil conspiracy and joint venture—required proof [*23] of knowing participation. We agree with Parker that the church did not preserve a claim for aiding and abetting because its pleadings did not give him fair notice of it.” First United Pentecostal Church of Beaumont v. Parker, No. 15-0708, 2017 Tex. LEXIS 295, at *21-23 (Mar. 17, 2017)
• Summary Judgment: “Rule 166a(c) of the Texas Rules of Civil Procedure provides that “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” While ExxonMobil’s motion for summary judgment did mention that the Ranch should not be entitled to its requested relief, the relief the Ranch was then requesting included injunctive relief. ExxonMobil’s motion for summary judgment did not address the availability of injunctive relief.  A motion for summary judgment must state the specific grounds entitling the movant to judgment, identifying or addressing the cause of action or defense and its elements. And while the availability of injunctive relief was discussed at the hearing on the motion, the motion itself did not “present[]” the issue, as the rule requires. The Ranch’s [*14] apparent adjustments in its position on appeal muddle the issue further. As the Ranch points out, the record does not reflect exactly what it contemplates as “stabilization”. Because the issue of the Ranch’s entitlement to any injunctive relief was not properly presented to the trial court, we, like the court of appeals, must decline to address it.” ExxonMobil Corp. v. Lazy R Ranch, LP, No. 15-0270, 60 Tex. Sup. Ct. J. 471, 2017 Tex. LEXIS 210, at *13-14 (Feb. 24, 2017)

The Supreme Court also confirmed that there is a presumption that a pre-trial hearing is non-evidentiary in nature, so that the lack of a reporter’s record for that hearing does not trigger a failure to preserve error as to what happened at those hearings:

• Joinder and dismissal: “Before turning to the merits, we address XTO’s contentions regarding Crawford’s purported waiver of various issues and arguments. First, XTO argues that Crawford has waived his entire appeal because the appellate record contains no reporter’s record [*6] of the hearings on XTO’s joinder and dismissal motions, and that we must therefore presume evidence was presented at those hearings that supports the trial court’s orders. . . . The court of appeals rejected this argument, as do we. A reporter’s record is necessary only for evidentiary hearings; “for nonevidentiary hearings, it is superfluous.” Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005). Further, we generally presume that pretrial hearings are nonevidentiary unless “the proceeding’s nature, the trial court’s order, the party’s briefs, or other indications show that an evidentiary hearing took place in open court.” Id. at 783. The clerk’s record in this case contains the motions and responses relating to the joinder issue, and the parties submitted a considerable amount of evidence with those filings. In the order granting XTO’s motion to compel joinder, the trial court stated that it had considered the motion, response, and reply, along with “the arguments of counsel at the hearing on the Motion, the documents on file with the Clerk of the Court, and the applicable law.” [*7] Similarly, in its order dismissing the case, the trial court stated that it had considered the motion to dismiss, the response, applicable law, and “the relevant evidence and documents on file with the clerk of the court.” Nothing in those orders indicates that the trial court took evidence at the pertinent hearings or relied on any such evidence in ruling on the motions. XTO asserts in its briefing that “there was documentary evidence that was marked as an exhibit and admitted into evidence at a hearing.” XTO does not describe that evidence or clarify the specific hearing at which it was admitted. In light of the volume of evidence filed with the clerk and the absence of any indication that the trial court relied on any evidence submitted at a hearing, XTO’s summary assertion that a single, undescribed piece of evidence was admitted as an exhibit at an unidentified hearing does not overcome the presumption that the pertinent hearings were nonevidentiary. Accordingly, we hold that Crawford brought forward an adequate appellate record.” Crawford v. XTO Energy, Inc., No. 15-0142, 60 Tex. Sup. Ct. J. 350, 2017 Tex. LEXIS 121, at *5-7 (Feb. 3, 2017)

Moving on to the courts of appeals, it appears that you can agree to a temporary injunction which fails to comply with Rule 683, and still complain on appeal that it is a void order which could not be enforced:

• Temporary Injunction: “In this case, the trial court’s injunction order does not include a trial date and is thus void. . . . the Texas Supreme Court clarified that orders that fail to fulfill the requirements of Rule 683 are not merely voidable, but are void. See In re Office of Attorney Gen., 257 S.W.3d 695, 697 (Tex. 2008) (orig. proceeding); Qwest Commc’ns Corp., 24 S.W.3d at 337. . . . Our sister courts who have considered the issue of whether a party can agree to a temporary injunction which is void have soundly rejected this proposition. We agree with our sister courts that a party who has agreed to a void order has agreed to nothing. . . . . Accordingly, we hold that the order granting [*13] the temporary injunction is void, and the trial court erred by denying the motion to dissolve the temporary injunction.” Tex. Wrecker Serv. v. Resendez, Nos. 13-16-00515-CV, 13-16-00698-CV, 2017 Tex. App. LEXIS 1571, at *10-13 (Tex. App.—Corpus Christi Feb. 23, 2017)

Here is a case which says a parol evidence objection can be preserved by a motion for directed verdict, even if no objection as to the oral agreement was made when the evidence was offered:

• Parol Evidence: “At trial, appellants did not object to the admission of evidence regarding an oral agreement. They instead moved for a directed verdict after appellees rested on the basis that evidence of the parties’ oral agreement contradicted the written bill of sale. Because the parol evidence rule is a rule of substantive contract law, evidence admitted in violation of the rule is without probative force in the interpretation of a written instrument, even when admitted without objection. . . . Thus, appellants did not waive the issue by failing to object at trial at the time it was admitted.” Walz v. Hayes, No. 01-16-00277-CV, 2017 Tex. App. LEXIS 1557, at *6 n.2 (Tex. App.—Houston [1st Dist.] Feb. 23, 2017)

Here are some extensive discussions about preserving a demand for arbitration, a claim of lack of capacity to be sued, a jury charge objection, and a couple of cases which discuss preserving one’s special appearance:

• Arbitration: “In this case, Athas moved to compel arbitration less than 60 days after it filed its original answer. Although a hearing was conducted on the motion within a few weeks after it was filed, the trial court did not deny the motion for another five months. During the time period the parties were waiting for the trial court’s ruling, appellees filed multiple motions to compel discovery. Athas eventually moved to stay the case pending resolution of the arbitration motion. The trial court denied both Athas’s motion to compel arbitration and the motion to stay proceedings on the same day. One week after the trial court issued its order denying the first motion to arbitrate, Athas filed its second motion to compel arbitration. Athas also filed an interlocutory appeal of the order denying the first motion to arbitrate and a motion to stay proceedings pending resolution of the second motion to arbitrate. In response to Athas’s motion to stay, the trial court stayed all discovery as to Athas and stayed [*16] oral depositions as to all parties pending its ruling on the second motion. Eventually, the trial court denied Athas’s second motion and also denied Athas’s request to stay all proceedings pending an appeal of the orders denying arbitration. Athas then filed its second interlocutory appeal. The record shows that the only affirmative action taken by Athas, other than seeking to compel arbitration and stay proceedings, was a challenge to the sufficiency of the expert report filed by appellees in support of their health care liability claims. This challenge was filed twenty-one days after Athas filed its original answer. But a challenge to an expert report in a health care liability case must be filed within twenty-one days of the date the defendant files an answer or the objections are waived. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp. 2016). Asserting a matter that would otherwise be forfeited does not waive a party’s right to seek arbitration. . . . The only prejudice asserted by appellees below was that certain discovery costs would be duplicated if they were forced to arbitrate. The record demonstrates, however, that discovery progressed in the trial court at the urging of appellees, not Athas. Accordingly, [*17] any prejudice is of their own making. The record further demonstrates that Athas consistently and timely sought to invoke its contractual rights to arbitration and to prevent unnecessary expenditures while the arbitration matter was being resolved. We conclude, therefore, they have not waived their right to arbitration.” Athas Health, LLC v. Trevithick, No. 05-16-00219-CV, 2017 Tex. App. LEXIS 1417, at *15-17 (Tex. App.—Dallas Feb. 17, 2017)
• Capacity: “Automotive contends that, because RLJ did not file a verified denial of its legal capacity to be sued until July 2015—over five years after the litigation began—it has waived its right to assert lack of capacity. It therefore contends that, because RLJ waived its capacity claim, the trial court erred in granting summary judgment. We disagree. . . . Here, [*10] there is no question that RLJ filed a verified denial. We cannot conclude that the verified denial was untimely filed, or that the filing of such denial prejudiced Automotive’s rights. . . . We are, therefore, called on to examine the equities of the situation to determine whether RLJ’s verified plea was timely filed. . . . An examination of the equities in this context includes consideration not only of the passage of time, but also the actions of the party seeking to rely on the plea in abatement or verified plea and whether any delay in the filing of the plea was harmful or prejudicial to the opposing party. . . . RLJ filed a verified plea alleging its lack of capacity in 2010. Thereafter, in response to Automotive’s amended petition in October 2010, each of the defendants filed a verified plea alleging RLJ’s lack of capacity. The opening paragraph of RLJ’s verified answer avers that “RLJ-McLarty-Landers Automotive Holdings, LLC, also incorrectly listed as a separate defendant under the name ‘RLJ-McLarty-Landers Automotive Group,’ . . . submits the following Answer. . . .” In addition to those verified answers, which specifically denied RLJ’s capacity to be sued, Automotive was advised that RLJ would not answer discovery because it was not a legal entity. The trial court agreed with that position and entered a protective order in early 2011 precluding Automotive from propounding any further discovery on RLJ. Finally, after the case was remanded to the trial court, RLJ filed yet another verified denial stating that it was not an entity with the capacity to be sued, a position it had consistently maintained since 2010. Accordingly, Automotive was on notice from 2010 forward that RLJ and the remaining defendants claimed that RLJ lacked the legal [*13] capacity to be sued. RLJ filed three verified pleas stating as much—two in 2010 and a third in 2015. Automotive, therefore, cannot claim that it was prejudiced by the passage of time or by any delay by RLJ in filing a verified plea denying the legal capacity to be sued. This is especially true in light of the trial court’s 2011 protective order. . . .Here, the issue of capacity [*14] was raised in the trial court. The question of whether this issue was waived by the filing of a motion for summary judgment on the issue of collateral estoppel was not briefed. See Tex. R. App. P. 38.1. Moreover, RLJ specifically stated that, by filing the motion for summary judgment, it did not admit that it is a partnership or entity with the capacity to be sued and that it did not waive any argument that it is not a partnership with the capacity to be sued. We overrule this point of error.” BP Auto. LP v. RLJ-McLarty-Landers Auto. Grp., No. 06-16-00041-CV, 2017 Tex. App. LEXIS 1755, at *7 (Tex. App.—Texarkana Mar. 2, 2017)
• Jury Charge: “ At the charge conference, Laird informed the trial court that he objected to the “cost of repairs question.” The only reason he gave for his objection was “the veterinarian said [the ear] could not be repaired.” The trial court overruled Laird’s objection. . . . Laird’s objection to the damages question [*10] at the charge conference did preserve what we construe as Laird’s complaint on appeal that the cost-of-repair question should not have been submitted to the jury because the evidence showed that Bridger’s ear could not be repaired. Laird points out that the piece torn from Bridger’s ear could not be reattached.” Laird v. Benton, No. 01-16-00462-CV, 2017 Tex. App. LEXIS 2026, at *9 (Tex. App.—Houston [1st Dist.] Mar. 9, 2017)
• Special Appearance: “Thanh and Nancy argue that David waived his special appearance “by not timely requesting a hearing and pressing for a ruling on his special appearance.” The record reflects that David filed his special appearance on December 7, 2012 and requested [*6] a hearing on November 20, 2015. Rule 120a contains due-order-of-pleading and due-order-of-hearing requirements but imposes no temporal deadline by which a party contesting jurisdiction must have a hearing on a motion for special appearance. See Tex. R. Civ. P. 120a. . . . Here, David noticed his special appearance for hearing, and the trial court held a hearing on February 8, 2015, before any other matter. Rule 120a’s due-order-of-hearing requirement is satisfied. Thanh and Nancy also argue that David waived his special appearance by filing a motion for continuance of their partial summary judgment motion and his response to the motion. The record reflects that David filed his special appearance prior to filing his answer, participated in jurisdictional discovery [*7] only, and moved for a hearing on his special appearance. . . . David made no other request of the court prior to the hearing on his special appearance. Moreover, David’s motion for continuance and summary judgment response were filed after the court heard David’s special appearance and expressly subject to the pending ruling on David’s special appearance. See Tex. R. Civ. P. 120a(1) (stating that other pleadings and motions may “be filed subsequent [to a special appearance] without waiver of such special appearance”). David complied with rule 120a’s due-order-of-pleading hearing requirement. Because David did not waive his special appearance, we overrule Thanh and Nancy’s first issue.” Tran v. Tran, No. 01-16-00248-CV, 2017 Tex. App. LEXIS 1794, at *5-7 (Tex. App.—Houston [1st Dist.] Mar. 2, 2017)
• Special Appearance: “To the extent that Fiatt is claiming that the trial court lacked personal jurisdiction because he did not have the necessary minimum contacts with Texas, we note that he never filed a special appearance, but he did appear, by telephone, at several hearings before the trial court’s final judgment, including the damages hearing. Additionally, Fiatt also filed a motion for rehearing, asking that the trial court reconsider its sanctions order. In these appearances, he did not challenge the facts alleged to support personal jurisdiction over him in Texas. . . . A party enters a general appearance when he (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by his acts that an action is properly pending, or (3) seeks affirmative action from the court. . . . Here, Fiatt recognized that an action was property pending when he appeared by telephone at several hearings without questioning jurisdiction, and when he sought affirmative action from the trial court by filing a motion for rehearing of its sanctions order. As such, Fiatt has made a general appearance and waived any challenge to the trial court’s exercise of personal jurisdiction over him.” Fiatt v. Robert Florsheim & RF Mgmt LLC, No. 01-16-00010-CV, 2017 Tex. App. LEXIS 1563, at *6-7 (Tex. App.—Houston [1st Dist.] Feb. 23, 2017)

Here are a couple of opinions about the timeliness of a complaint–one, which held that a complaint about the lack of notice for a summary judgment hearing was timely, and another which held that a complaint about compelling arbitration was not timely, but confirmed that “[a] timely objection is one that is made ‘at a point in the proceedings which gives the trial court the opportunity to cure any alleged error.’ “:

• Arbitration: “In their first issue, appellants contend the trial court erred by compelling them to arbitrate their claims against Manhattan because they are not parties, signatories, or third-party beneficiaries to the contract containing the arbitration clause. As a general rule, a party is required [*7] to present a timely complaint to the trial court before being allowed to raise the issue on appeal. See Tex. R. App. P. 33.1. A timely objection is one that is made “at a point in the proceedings which gives the trial court the opportunity to cure any alleged error.” Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.—Dallas 2015, pet. denied). As noted previously, appellants did not file a response or any objections to the motion to compel arbitration nor did they raise the issue in their motion to reinstate/motion for new trial, assuming such a complaint in a post-dismissal filing would be timely. Having failed to object below, appellants have waived this complaint on appeal.” My Three Sons, Ltd. v. Midway/Parker Med. Ctr., L.P., No. 05-15-01068-CV, 2017 Tex. App. LEXIS 2044, at *6-7 (Tex. App.—Dallas Mar. 9, 2017)

Normally, I don’t do this, but when I drilled down on the ancestors of Sons’ holding about the “timeliness” of the objection , I found this case which apparently first articulated the test which Sons mentions, and which held that an objection to a witness’s inappropriate response to a question had been timely, even though not immediate:

• Witness: “Noting that Appellant was obligated to object after the unexpected answer regarding “policy” limits was made, the threshold question thus presented in the instant case is whether a “timely” objection, as envisioned by TEX. R. APP. P. 52(a), must be an “immediate” objection. [*795] Examination of Texas case law reveals numerous interpretations [**8] of “timeliness” of objections, the vast majority of which are written in the context of waiver. The opinions of this Court, both civil and criminal, have been in concert with other Texas courts of appeals. See e.g. Oechsner v. Ameritrust, N.A., 840 S.W.2d 131, 135, 138 (Tex.App.–El Paso 1992, writ denied)(objection to jury charge waived due to variant complaint on appeal); Ortiz v. State, 825 S.W.2d 537, 541 (Tex.App.–El Paso 1992, no pet.)(objection untimely and thus waived when evidence offered and admitted without objection); Hernandez v. State, 825 S.W.2d 765, 770 (Tex.App.–El Paso 1992, no pet.)(objection untimely and thus waived when evidence offered and admitted without objection); and Dick Poe Motors, Inc. v. Dickey, 802 S.W.2d 739, 746 (Tex.App.–El Paso 1990, writ denied)(error waived for failure to seek relief in the trial court). While neither this Court nor any other Texas court has precisely defined the word “timely” in the Rule 52(a) context, it is clear from a simple reading of Texas law, that objections, in order to be considered timely, must be specific enough to enable the trial court to understand the precise nature of the error alleged and [**9] interposed at such a point in the proceedings so as to enable the trial court the opportunity to cure the error alleged, if any. “Timeliness” defies definition and generally the question of what is timely or otherwise must be left to the sound discretion of the trial judge, but such objection need not be immediate. We find that Appellant, in asking one simple unrelated question and permitting its answer to pass prior to approaching the bench to interpose an objection to a clearly objectionable and inappropriate response, done in an effort so as not to draw the jury’s attention to the word “policy,” acted responsibly as it was possible her objection and motion for mistrial would be overruled. Appellate courts need not be wholly insensitive to the conflicting needs of the attorney who, in the midst of a complex jury trial, is charged with both the preservation of error and the presentation of the best case possible. We further find that the objection was indeed timely and that the trial court erred in not sustaining Appellant’s objection to Appellee’s testimonial reference to the existence of a “policy.”” Beall v. Ditmore, 867 S.W.2d 791, 794-95 (Tex. App.—El Paso 1993, writ denied)
• Notice: “Automotive argues that since the Fourth MSJ was not set for hearing, it did not have notice of a hearing and was deprived of the opportunity to respond to the Fourth MSJ. N. 19 N. 19 Although Automotive did not file a motion for new trial complaining of its lack of notice, it complained of the lack of notice of a hearing on the Fourth MSJ in its objection to and motion to strike defendants’ reply to third and fourth supplemental traditional motion for summary judgment, filed on September 18, 2015, which was impliedly overruled when the trial court granted the Fourth MSJ. Therefore, we find that Automotive has preserved this error. See Tex. R. App. P. 33.1(a).” BP Auto. LP v. RML Waxahachie Dodge, LLC, No. 06-16-00021-CV, 2017 Tex. App. LEXIS 1754, at *47 (Tex. App.—Texarkana Mar. 2, 2017)

Here is one court which holds that you do not have to object to the trial court’s sustaining of your opponent’s objection to your summary judgment evidence in order to complain about that ruling on appeal–but I think this court is in the minority on this issue:

• Summary Judgment: “During oral argument, Great Lakes relied on three cases from our sister courts in contending that Miller was required to object to the trial court’s ruling sustaining Great Lakes’s objections to portions of her summary-judgment evidence in order to preserve for appeal her complaint regarding the exclusion of that evidence. See Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.); Cmty. Initiatives, Inc. v. Chase Bank of Tex., 153 S.W.3d 270, 281 (Tex. App.—El Paso 2004, no pet.); Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878 (Tex. App.—Dallas 1990, no writ).  We do not believe a party is required to object to the sustaining of an objection in order to complain of the sustaining of the objection on appeal; to the extent these decisions by our sister courts hold otherwise, we decline to follow them.” Miller v. Great Lakes Mgmt. Serv., No. 02-16-00087-CV, 2017 Tex. App. LEXIS 2268, at *5 n.4 (Tex. App.—Fort Worth Mar. 16, 2017)

Lack of subject matter jurisdiction may be raised for the first time on appeal:

• Jurisdiction: “The record conclusively establishes that the Board issued its amended order while Dass’s appeal from the district court was pending before this Court and, thus, while this Court had exclusive plenary jurisdiction over the matter. Accordingly, the Board, at that time, lacked jurisdiction to modify its order and, as a result, its amended order is void. Further, because the Board lacked jurisdiction to issue the amended order, the district court lacked, and this Court [*5] lacks, jurisdiction to review the merits of the void amended order. The Board asserts, based on various grounds, that Dass has waived error. Subject-matter jurisdiction, which is essential to the authority of a court to decide a case, is never presumed and cannot be waived. Moreover, not only may an issue of subject-matter jurisdiction be raised for the first time on appeal by the parties or by the court, “a court is obliged to ascertain that subject-matter jurisdiction exists regardless of whether the parties have questioned it.“” Dass v. Tex. Bd. of Prof’l Eng’rs, No. 03-14-00552-CV, 2017 Tex. App. LEXIS 2187, at *4-5 (App.-Austin Mar. 15, 2017)
• Jurisdiction: “Real Parties further argue that Patchen consented to the trial court’s jurisdiction because his motion to vacate was filed ten months after the new trial order was signed. But it is well-established that a trial court’s lack of subject-matter jurisdiction cannot be waived by failing to object or by participating in proceedings.. . . Because the new trial order was void, we hold that the trial court abused its discretion in failing to vacate the order and we need not determine whether Patchin lacks an adequate remedy by appeal.” In re Patchen, No. 01-16-00947-CV, 2017 Tex. App. LEXIS 2162, at *6-7 (Tex. App.—Houston [1st Dist.] Mar. 14, 2017)

I  hope this helps.  Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, February 5, 2017

February 5, 2017

Dear All:

The Supreme Court recently weighed in on error preservation directly in one case, and tangentially in another, in terms of holding that a reporter’s record is necessary only for evidentiary hearings , and whether blowing a deadline to request an attorney general’s opinion meant a city had waived its right to withhold documents from a response to public information act request (held-the right is not waived):

• Attorney Client Privilege: “We hold that, absent waiver, the interests protected by the attorney-client privilege are sufficiently compelling to rebut the public-disclosure presumption that arises on expiration of the PIA’s ten-day deadline. The attorney-client privilege reflects a foundational tenet in the law: ensuring the free flow of information between attorney and client ultimately serves the broader societal interest of effective administration of justice. The Legislature’s choice to exempt information protected by the attorney-client privilege embodies the fundamental understanding that, in the public sector, maintaining candid attorney-client communication directly and significantly serves the public interest by facilitating access to legal advice vital to formulation and implementation of governmental policy. Full and frank legal discourse also protects the government’s interest in litigation, business transactions, and other matters affecting the public. Depriving the privilege of its force thus compromises the public’s interest at both discrete and systemic levels. Because failing to meet the PIA’s deadline to assert a statutory exception to disclosure does not, in and of [*4] itself, constitute waiver of the attorney-client privilege, requested information does not automatically lose its confidential status and is not subject to compelled disclosure under the PIA solely on that basis. We therefore affirm the lower-court judgments holding the attorney-client confidences at issue need not be disclosed to the public-information requestors.” Paxton v. City of Dall., No. 15-0073, 2017 Tex. LEXIS 122, at *3-4 (Feb. 3, 2017)
• Record: “Before turning to the merits, we address XTO’s contentions regarding Crawford’s purported waiver of various issues and arguments. First, XTO argues that Crawford has waived his entire appeal because the appellate record contains no reporter’s record [*6] of the hearings on XTO’s joinder and dismissal motions, and that we must therefore presume evidence was presented at those hearings that supports the trial court’s orders. . . . .The court of appeals rejected this argument, as do we. A reporter’s record is necessary only for evidentiary hearings; “for nonevidentiary hearings, it is superfluous.” Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005). Further, we generally presume that pretrial hearings are nonevidentiary unless “the proceeding’s nature, the trial court’s order, the party’s briefs, or other indications show that an evidentiary hearing took place in open court.” Id. at 783. The clerk’s record in this case contains the motions and responses relating to the joinder issue, and the parties submitted a considerable amount of evidence with those filings. In the order granting XTO’s motion to compel joinder, the trial court stated that it had considered the motion, response, and reply, along with “the arguments of counsel at the hearing on the Motion, the documents on file with the Clerk of the Court, and the applicable law.” [*7] Similarly, in its order dismissing the case, the trial court stated that it had considered the motion to dismiss, the response, applicable law, and “the relevant evidence and documents on file with the clerk of the court.” Nothing in those orders indicates that the trial court took evidence at the pertinent hearings or relied on any such evidence in ruling on the motions. XTO asserts in its briefing that “there was documentary evidence that was marked as an exhibit and admitted into evidence at a hearing.” XTO does not describe that evidence or clarify the specific hearing at which it was admitted. In light of the volume of evidence filed with the clerk and the absence of any indication that the trial court relied on any evidence submitted at a hearing, XTO’s summary assertion that a single, undescribed piece of evidence was admitted as an exhibit at an unidentified hearing does not overcome the presumption that the pertinent hearings were nonevidentiary. Accordingly, we hold that Crawford brought forward an adequate appellate record.” Crawford v. Xto Energy, No. 15-0142, 2017 Tex. LEXIS 121, at *5-7 (Feb. 3, 2017)

You do not have to specially except, or get a ruling on special exceptions, in order to object to a theory of recovery your opponent did not plead:

• Pleading: “Happy Endings emphasizes that the Gregories did not specifically plead a theory of disgorgement. “Disgorgement is an equitable forfeiture of benefits wrongfully obtained . . . .” In re Longview Energy Co., 464 S.W.3d 353, 361 (Tex. 2015). In response, the Gregories [**9] argue that the issue of damages was tried by consent and that Happy Endings may not now object to any defect in the pleading of damages. The Gregories acknowledge that Happy Endings filed a special exception concerning the unclear pleading of damages. They also acknowledge that Happy Endings filed a motion in limine concerning this issue, made timely objections at trial, moved for instructed verdict, and objected to the inclusion of unpleaded damages in the jury charge. Nonetheless, the Gregories argue that these objections were insufficient because Happy Endings was instead required to obtain a ruling sustaining the special exception. We disagree. “A party is not required to specially except to a pleading defect if it lacks notice of the other party’s intent.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 346 (Tex. 2011). One “who is sued on specific theories of recovery is not required to except to the petition and ask whether there are other theories that the pleader wants to allege.” Haynes v. City of Beaumont, 35 S.W.3d 166, 180 (Tex. App.—Texarkana 2000, no pet.). The Gregories did not plead disgorgement or any cause of action which might otherwise give notice of a [*292] potential for disgorgement. . . . Instead, they pleaded breach of deed restriction, which is often associated with injunctive relief. Given that Happy Endings was not required to except to a novel theory of damages which they had no reason to anticipate, and given that Happy Endings later made its protest known at the proper times and in various ways, we conclude that this is not one of “those exceptional cases where the parties clearly tried an unpleaded issue by consent.” See UMLIC VP, 176 S.W.3d at 605. We therefore sustain Happy Endings’s first issue. For purposes of legal sufficiency review, we will consider only those [**11] forms of damages of which the Gregories’ pleadings provided fair notice: general damages and statutory damages.” Happy Endings Dog Rescue v. Gregory, 501 S.W.3d 287, 291-92 (Tex. App.—Corpus Christi 2016)

When you raise your complaint in a timely fashion and obtain a ruling, you have preserved it:

• Evidence: “Father objected to questions about the injury-to-a-child indictments on relevance and rule 403 grounds because they pertained to alleged offenses against children other than Robert and Sharon. See Tex. R. Evid. 401, 403. The trial judge overruled the objection and stated that she was not granting a blanket objection, but she instructed Father not to answer questions until his attorney could have the opportunity to object. When the Department attempted to offer the indictments into evidence, Father objected on the same grounds: general relevancy and rule 403. Thus, we conclude and hold that Father did preserve his objection to the evidence regarding the pending indictments against him. See Tex. R. App. P. 33.1(a)(1).” In the Interest of K.G. & K.G., No. 02-16-00296-CV, 2017 Tex. App. LEXIS 694, at *36-37 (Tex. App.—Fort Worth Jan. 26, 2017) .
• Jury Trial: “Mendez argues in his ninth issue that the trial court erred when it conducted a bench trial because he had perfected his right to a jury trial. See Tex. R. Civ. P. 216. Remanente responds that Mendez’s jury demand was untimely and that he waived this issue [*29] by failing to object when the trial court held a bench trial. We agree with Remanente. A party who properly perfected his right to a jury trial can waive that right by failing to object when the trial court proceeds with a bench trial. . . . Even if we assume that Mendez timely perfected his right to a jury trial, he did not object when the trial court held a bench trial. We hold that Mendez has waived this issue.” Mendez v. Remanente Llc, No. 13-15-00529-CV, 2017 Tex. App. LEXIS 880, at *28-29 (Tex. App.—Corpus Christi Feb. 2, 2017)

You have to raise your complaint in timely fashion:

• Administrative Law: “A motion for rehearing in an administrative proceeding is a statutory prerequisite to appeal in a contested case. Tex. Gov’t Code § 2001.145(a). The purpose of a motion for rehearing is to apprise the agency of the claimed error and allow the agency the opportunity to correct the error or prepare to defend against it. . . . To preserve error, an appealing party must first raise the issue in its motion for rehearing before the agency. See Hill, 40 S.W.3d at 679. The motion must set forth: (1) the particular finding of fact, conclusion of law, ruling, or other action by the agency which the complaining party asserts was error; and (2) the legal basis upon which the claim of error rests. . . . The standard is one of fair notice. . . . NWF did not mention Section 288.5(1)(B), the legal basis for this challenge, in its motion for rehearing, nor did it mention Upper Trinity’s [*29] five- and ten-year targets. See Id. Accordingly, NWF has not preserved error regarding its complaint based upon Section 288.5(1)(B). See Id.” Upper Trinity Reg’l Water Dist. v. Nat’l Wildlife Fed’n, No. 01-15-00374-CV, 2017 Tex. App. LEXIS 712, at *28-29 (Tex. App.—Houston [1st Dist.] Jan. 26, 2017)
• Evidence: “With regard to Suruchi’s contention that the trial court abused its discretion in allowing Dr. Trevino to testify as an expert witness because Anil failed to provide the disclosures required by Rule 194.2(f), Suruchi only raised this contention in the context of a motion in limine. In her motion in limine, Suruchi requested the trial court to instruct Anil not to call Dr. Trevino as an expert or lay witness until the matter was called to the trial court’s attention outside [*4] of the jury’s presence. This request was discussed at a pretrial hearing. At the conclusion of the discussion, the trial court ruled, “I’m going to — I think she’s qualified to testify.” When Dr. Trevino was called to testify at trial, Suruchi did not make any further objection based on the alleged inadequacy of Anil’s discovery responses. In order to preserve a complaint for appellate review, the record must show that the complaint was made to the trial court, and the trial court ruled on the request, objection, or motion. See Tex. R. App. P. 33.1(a). A ruling on a motion in limine does not preserve error. . . . If a motion in limine is erroneously overruled, the party must object at trial when the evidence or testimony is offered in order to preserve error. . . . .. In this case, when Dr. Trevino’s testimony was offered at trial, Suruchi did not object that Dr. Trevino should not be allowed to testify because Anil did not adequately disclose all of the information required by Rule 194.2(f). Therefore, this issue has not been preserved for our review.” In the Interest of A.M., No. 04-16-00067-CV, 2017 Tex. App. LEXIS 568, at *3-4 (Tex. App.—San Antonio Jan. 25, 2017)

Your complaint must comply with the other pertinent rules:

• Summary Judgment: “In her first issue, Brown asserts the trial court erred in granting summary judgment without giving Brown additional time to conduct discovery. Brown complains that she had not yet had an adequate opportunity for discovery. She also asserts that as to HEB’s no-evidence ground, the trial court erred in determining that there had been an adequate time for discovery. See Tex. R. Civ. P. 166a(i) (“After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial”). When a party contends she has not had an adequate opportunity for discovery before a summary-judgment hearing or that there has not been adequate time for discovery under Texas Rule of Civil Procedure 166a(i), the party must file either an affidavit explaining the need for further discovery or a verified motion for continuance. . . . The record does not reflect [*3] that Brown took either of these steps; thus, she failed to preserve error.” Brown v. HEB Grocery Co., LP, No. 14-15-00271-CV, 2017 Tex. App. LEXIS 546, at *2-3 (Tex. App.—Houston [14th Dist.] Jan. 24, 2017)

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

• Disqualification: “J.F.L.’s argument on appeal to this Court differs from her argument at the recusal hearing. At the hearing, J.F.L.’s attorney argued that, regardless of the truth of the allegations, it would be difficult for Judge Galvan to be impartial because of the seriousness of the allegations. On appeal, J.F.L.’s argument is that her allegations are true. In support, she recounts the evidence she presented in 2010 in great detail, and challenges the Aransas [*21] County Court’s finding that her allegations had no basis in fact. Unlike the motion and hearing in the trial court, J.F.L. makes no argument regarding whether the allegations themselves could create bias that would serve as a ground for recusal. J.F.L. has not advanced any grounds for recusal which could be construed as constitutional in character. See Horn, 352 S.W.3d at 514; Esquivel, 225 S.W.3d at 87. Rather, J.F.L.’s recusal arguments could only relate to those grounds for recusal which are set forth in the “rules promulgated by the supreme court.” See In re Union Pac., 969 S.W.2d at 428. As such, J.F.L.’s recusal arguments are waived, given that her argument on appeal does not comport with her argument in the trial court.” In the Interest of T.A.M., No. 13-16-00005-CV, 2017 Tex. App. LEXIS 629, at *20-21 (Tex. App.—Corpus Christi Jan. 26, 2017)
• Evidence: “In order to preserve error, the objection made at trial must comport with the issue presented on appeal. . . . As trial, Suruchi objected to the question being leading and a mischaracterization of the evidence. On appeal, however, she asserts Dr. Trevino’s testimony should not have been admitted because it was overly prejudicial. Because Suruchi’s objection at trial does not comport with the issue she presents on appeal, she did not preserve this complaint for our review.” In the Interest of A.M., No. 04-16-00067-CV, 2017 Tex. App. LEXIS 568, at *6 (Tex. App.—San Antonio Jan. 25, 2017)
• Jury Charge: “To the extent that Bruce’s appellate argument may be understood as a complaint that the burden of proof should be on Cauthen because a partner’s duties as codified in Chapter 152 of the Business Organizations Code are not the equivalent of common law fiduciary duties, we conclude that Bruce has failed to preserve such a complaint for appellate review because Bruce made a distinctly different objection in the trial court. Indeed, at the charge conference, Bruce’s attorney appeared to concede that Bruce owed Cauthen a fiduciary duty and that Cauthen had the initial burden of proof, but that Bruce had presented evidence that shifted the burden back to Cauthen: [Bruce’s attorney:] The first objection, Your Honor, is an objection that Question No. 4 is shifting the burden of proof to Mr. Bruce. While fiduciaries can have the burden of proof in breach of fiduciary duty cases, that burden is a – – a burden shifting is rebuttable and there are times where that can shift back to the fiduciary. In this case we believe the proper formulation of this question is the burden of proof should be on Ms. Cauthen as the fiduciary. We have shown why we did [*34] what we did and there is no question that there was [sic] fraud in the sense that, you know, we didn’t lie about the numbers or anything. We have a disagreement over what should have been done. That should rebut the question and shift the burden back to Ms. Cauthen.” The test for determining whether a party has preserved error in the jury charge is whether the party timely and plainly made the trial court aware of the complaint and obtained a ruling. State Dep’t of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992); Lundy, 260 S.W.3d at 507; see also Tex. R. Civ. P. 274 (requiring a party objecting to a charge to point out distinctly the objectionable matter and the grounds of the objection); Tex. R. App. P. 33.1(a)(1)(A) (complaint must be made “with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context”). Further, to preserve error for appeal, a party’s argument on appeal must correspond with its argument in the trial court. . . . Because Bruce’s objection at trial does not comport with any fair reading of his appellate argument, we overrule Bruce’s complaint of charge error without reaching his arguments regarding the nature and extent of the duty of loyalty in the partnership context.” Bruce v. Cauthen, No. 14-15-00693-CV, 2017 Tex. App. LEXIS 914, at *33-34 (Tex. App.—Houston [14th Dist.] Feb. 2, 2017)

You have to raise your complaint in the trial court:

• Evidence: “Unlike the evidence of the pending indictments, Father did not object when asked about his prior criminal convictions. He admitted being convicted of robbery in 2005 and aggravated assault around the same time. His counsel stated, “[N]o objection,” when the Department offered exhibits into evidence showing the judgments of conviction. Accordingly, Father has not preserved any complaint about the admission into evidence of his past criminal convictions. See Tex. R. App. P. 33.1(a)(1). We overrule Father’s fourth issue.” In the Interest of K.G. & K.G., No. 02-16-00296-CV, 2017 Tex. App. LEXIS 694, at *36-37 (Tex. App.—Fort Worth Jan. 26, 2017)
• Counsel: “First, Guerra contends that his right to “equality under the law” was violated when the trial court did not permit him to enter on the record at the hearing that he had dismissed his legal counsel. The modification order reflects that [*8] Guerra was represented by an attorney at the hearing. A record of the hearing has not been made part of the appellate record. Consequently, Guerra has waived the issue because the record does not reflect that he raised this complaint in the trial court or that the court made an adverse ruling. See Tex.R.App.P. 33.1(a).” In re M.D.G., No. 08-16-00004-CV, 2017 Tex. App. LEXIS 781, at *7-8 (Tex. App.—El Paso Jan. 27, 2017)
• Jury Charge: “In his sixth issue, Da Oca [*12] contends that the trial court erred by failing to instruct the jury on the factors that may be considered in assessing attorney’s fees. . . . However, Da Oca did not preserve this error because he did not make a timely objection in the trial court. . . . Accordingly, we overrule Da Oca’s sixth issue.” Da Oca v. Gutierrez, No. 03-14-00668-CV, 2017 Tex. App. LEXIS 581, at *11-12 (Tex. App.—Austin Jan. 25, 2017)

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation Update, January 22, 2017

January 22, 2017

Dear All:

If you have to do something to trigger the running of the other side’s obligation to respond, make sure you do it (or don’t argue the party did not timely respond if you did not provide the triggering event):

• Expert Report: “The Ikhimokpa Parties do not point to any other time they purport to have presented the expert report to the Hospital Parties before serving the report by e mail on August 27th. The record shows that the August 27th e-mail is the first time the Ikhimokpa Parties served the Hospital Parties with an expert report. Because August 27th falls within 120 days of the Hospital’s answer, the Ikhimokpa Parties are correct in asserting in their first issue that they timely filed their expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The Hospital filed its objections to the sufficiency of the report twenty-one days later, on September 17th. See id. Because the Hospital asserted its objections within the twenty-one day deadline, the Hospital’s objections were timely. See id.; Hebner, 498 S.W.3d at 44. The Hospital did not waive its objections by failing to file them by the statutory deadline. See id.; Hebner, 498 S.W.3d at 44. We overrule the Ikhimokpa Parties’ first, second, and third issues.” Adedunye-Ikhimokpa v. Hous. Methodist W. Hous. Hosp., No. 14-16-00160-CV, 2017 Tex. App. LEXIS 144, at *6 (Tex. App.—Houston [14th Dist.] Jan. 10 2017)

You must assert your complaint in a timely fashion:

• Alternate Appearance: “Here, the record shows that, although he was aware of the [*13] trial date, Fernando made no request before trial to appear by alternative means, such as by telephone conference, deposition, or affidavit. Fernando’s post-trial motion for a telephonic hearing does not preserve any complaint by Fernando that he was not allowed to participate in the trial by an alternate means.” Camero v. Camero, No. 01-15-00860-CV, 2017 Tex. App. LEXIS 459, at *12-13 (Tex. App.—Houston [1st Dist.] Jan. 19, 2017)

You have to get a ruling from the trial court on your objection:

• Witness: “In their fifth point of error, the Knoderers assert that the trial court erred in allowing Rios to testify. The Knoderers argue that Rios violated the Texas Private Security [*46] Act by acting as an investigations company without a license. We find that the Knoderers did not preserve this point of error. . . . At trial, before Rios began his substantive testimony, the Knoderers lodged their objection to his testimony, asserting that it should be excluded because he lacked an investigations company license and was committing a misdemeanor. . . . [the judge then asked for the authorities cited by the objecting party “while we’re –. . . — to see – . . . All right. Go ahead.”] State Farm then proceeded with the direct, substantive testimony of Rios. At the conclusion of Rios’ direct testimony, the Knoderers again asserted their [*48] objection and moved to exclude Rios’ testimony. After a hearing outside the presence of the jury, the trial court denied the motion as untimely. This record shows that although the Knoderers made a timely objection prior to the introduction of Rios’ testimony, they failed to obtain a ruling by the trial court on the objection. Therefore, no complaint was preserved for our review based on this objection. See Tex. R. App. P. 33.1(a)(2); . . .Further, the Knoderers’ objection and motion to exclude Rios’ testimony asserted after the conclusion of his direct testimony were untimely and did not preserve this complaint for our review.” Knoderer v. State Farm Lloyds, No. 06-16-00009-CV, 2017 Tex. App. LEXIS 298, at *45-46 (App.—Texarkana Jan. 13 2017)

The objection you make on appeal must comport with the objection you make at trial:

• Jury Charge: “To preserve error for appeal, the argument made in the trial court must comport with the argument [*19] made on appeal. . . . This is so because “[p]reservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error. Affording courts this opportunity conserves judicial resources and promotes fairness by ensuring that a party does not neglect a complaint at trial and raise it for the first time on appeal.” Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014). Thus, it is well established that a party must preserve error by invoking a procedure in the trial court that apprises the trial court of the party’s argument in a way that allows the trial court to decide the issue. See Tex. R. App. P. 33.1(a). . . . Here, Elness’s argument on appeal does not comport with the objection it raised at trial. An objection that RLJ presented no evidence to show that Elness failed to comply with the structural-engineering services referenced in the hotel contract is an entirely different argument than one asserting that Elness was not required to provide structural-engineering services that were free from defects and that RLJ was required to plead and prove a theory of respondeat superior or vicarious liability in order to hold Elness responsible for faulty structural-engineering services. Because Elness did not raise the argument in the trial court that it now raises on appeal, it has not preserved this issue for our review. See Tex. R. Civ. P. 272, 274.” Graham Architects v. Austin Air, No. 03-14-00738-CV, 2017 Tex. App. LEXIS 518, at *18-20 (Tex. App.—Austin Jan. 20, 2017)
• Constitution: “When a defendant only seeks to have evidence admitted for the purpose of impeaching a witness’s credibility, without specifying whether he was “relying on the Rules of Evidence or the Confrontation Clause” in making his request, the defendant’s request fails to “put the trial judge on notice that he was making a Confrontation Clause argument.” Reyna, 168 S.W.3d at 179 (citing Clark v. State, 881 S.W. 2d 682, 694 (Tex.Crim.App. 1994)). Because the trial judge does not have the opportunity to rule upon Confrontation Clause rationale, the issue is not preserved for appeal. Id.; . . . . Similarly, E.H. [*15] did not make any Confrontation Clause objection to the trial court. We therefore hold that E.H. has waived his right to make a Confrontation Clause complaint on appeal. We overrule E.H.’s second issue.” In re E.H., No. 08-15-00070-CV, 2017 Tex. App. LEXIS 372, at *14-15 (Tex. App.—El Paso Jan. 18, 2017)

You have to raise your complaint in the trial court:

• Arbitration: “The party must make its application for vacatur under subsection (a)(1) “not later than the 90th day after the date the grounds for the application are known or should have been known.” Id. § 171.088(b). The plain language of section 171.088 shows that “the legislature intended the 90—day period . . . to be a limitations period after which a party cannot ask a court to vacate an arbitration award.” New Med. Horizons II, Ltd. v. Jacobson, 317 S.W.3d 421, 428 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A party seeking to vacate an arbitration award must present any grounds for doing so to the trial court, otherwise, those [*12] complaints are waived on appeal. See Tex. R. App. P. 33.1; . . . . Because Biostar made no application to the trial court to vacate the arbitrator’s award, its complaint is waived on appeal. Biostar’s third issue is overruled.” Human Biostar, Inc. v. Celltex Therapeutics Corp., No. 14-15-00234-CV, 2017 Tex. App. LEXIS 429, at *11-12 (Tex. App.—Houston [14th Dist.] Jan. 19, 2017)
• Attorney’s Fees: “On appeal, M.M. asserts the award of fees is unconscionable and is in bad faith. She cites no authority for that assertion. See HN21 Tex. R. App. P. 38.1(i) (“[Appellant’s] brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.”) Likewise, she did not raise that issue in the trial court. See Tex. R. App. P. 33.1(a)(1)(A) (party must state grounds for ruling with sufficient specificity to make trial court aware of complaint). M.M. also contends the fee award “is not in conformity of awarding attorney’s fees as necessaries for the child.” She did not raise that issue in the trial court, either. See id. We conclude M.M. has waived any error regarding the attorney’s fee award.” In re A.L.H., Nos. 14-16-00556-CV, 14-16-00578-CV, 2017 Tex. App. LEXIS 123, at *45 (Tex. App.—Houston [14th Dist.] Jan. 10 2017)
• Capacity: “In their cross-appeal, the Turner Family argues that the trial court erred in failing to award them $406,316.00 in survival damages as representatives of Mary Turner. JBS and Lundry respond that they were not entitled to the damages under the survival cause of action because they lacked standing to bring an action on behalf of Turner. JBS and Lundry point to the survival statute, which provides that only a personal representative, administrator, or heir may sue on behalf of an estate. See Tex. Civ. Prac. & Rem. Code Ann. § 71.021(b) (West 2008). And, they emphasize that none of Turner’s children in this case is a personal representative or administrator of Turner’s estate. . . . In response, the Turner Family points out that JBS and Lundry’s argument is really one about capacity and not standing. The Turner Family stresses that JBS and Lundry did not challenge the Turner Family’s capacity as Mary Turner’s personal representative before trial through a verified answer, as required by Texas Rule of Civil Procedure 93. Thus, according to the Turner Family, because JBS and Lundry failed to file a verified answer challenging the Turner Family’s capacity to bring the survival action, they waived any claim that the Turner Family could not recover survival damages based on lack of capacity. . . . We agree with the Turner Family that the issue here is one of capacity, not standing. Because Mary Turner’s estate suffered an injury, it had a justiciable interest in the controversy and thus standing. . . .. The issue now raised by JBS and Lundry is whether the Turner [*39] Family had capacity to sue on behalf of Mary Turner’s estate-that is, whether the Turner Family had the legal authority to act on behalf of the estate. However, because JBS and Lundry did not raise this issue of capacity in the trial court by verified pleading, they have waived any argument on appeal. . . . Therefore, because JBS and Lundry did not properly raise the issue of capacity in the trial court, we conclude the trial court erred when it failed to include in its judgment the jury’s award of $406,316.00 in survival damages.” JBS Carriers,Inc. v. Washington, No. 04-15-00463-CV, 2017 Tex. App. LEXIS 148, at *36-39 (Tex. App.—San Antonio Jan. 11 2017)
• Constitution: “Complaints founded on the Fourth Amendment to the United States Constitution are waived if not preserved at trial. . . . To preserve the complaint, it must first be urged to the trial court, among other things. Tex. R. App. P. 33.1(a)(1). That was not done here. We find neither a written motion filed before trial or an objection at trial encompassing the Fourth Amendment claim. Thus, it was not preserved for review, and we overrule the [*2] sole issue raised in appellant’s brief.” $8,760.00 in United States Currency v. State, No. 07-16-00149-CV, 2017 Tex. App. LEXIS 224, at *1-2 (Tex. App.—Amarillo Jan. 11 2017)
• Discovery: “Chico contends for the first time on appeal that it was entitled to a continuance in part because the Defendants allegedly failed to timely respond to its discovery requests. . . . Chico never alleged in the trial court that the Defendants were abusing the discovery process or that the Defendants had failed to timely [*33] respond to any of its discovery requests. Further, there is nothing in the record on appeal that would support any such inference. Consequently, we conclude Chico has failed to preserve error regarding this particular complaint. See Tex. R. App. P. 33.1 (to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, unless the grounds are apparent from the context of the request, objection, or motion).” Chico Auto Parts & Serv., Inc. v. Crockett, No. 08-15-00021-CV, 2017 Tex. App. LEXIS 373, at *32-33 (Tex. App.—El Paso Jan. 18, 2017)
• Evidence: “Sheilah maintains that she was prevented from presenting any other evidence at the hearing because time ran out. Nothing in the record indicates that is what in fact happened. At the conclusion of the hearing, instead of asking for additional time, objecting that she had not been afforded the opportunity to prove her case, or moving for a continuance, Sheilah thanked the judge and told him that she would provide him with the guardianship orders he requested to review before ruling on her petition. If Sheilah believed time constraints had prevented her from presenting all of her evidence, [*11] she should have objected and made an offer of proof. When a trial court limits the amount of time a party has to present its case, and thereby prevents the party from presenting all of its evidence, the party must object to the time limit and make an offer of proof of the evidence it was prevented from presenting to preserve error on appeal. . . . Sheilah made no objection or offer of proof. Second, Sheilah had the opportunity to present evidence through her post-hearing briefing. . . . Third, Sheilah had the opportunity to attach evidence to a reply to Merchants’s response to her post-hearing brief. . . . It was Sheilah’s burden to present evidence in support of her petition. She had three opportunities to do so. Without any indication that she required additional opportunities, she requested a ruling from the trial court on her motion. To the extent her submitted evidence failed to establish her right to a bill of review, Sheilah did not meet her burden.” In re Ludington, No. 01-16-00411-CV, 2017 Tex. App. LEXIS 458, at *10-13 (Tex. App.—Houston [1st Dist.] Jan. 19, 2017)
• Judgment: “Father contends the trial court lacked discretion to sign a judgment that did not conform to the pleadings. Specifically, he says the judgment terminates his parental rights under section 161.004 of the Family Code but the Hoods did not plead for termination on that basis in their live petition. Texas Rule of Civil Procedure 301 states in relevant part: “The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any . . . .” Tex. R. Civ. P. 301. Father has not preserved this issue, either. To preserve a complaint of error in the judgment, the party must inform the trial court of its objection by a motion to amend or correct the judgment, a motion for new trial, or some similar method. . . .The trial court held a hearing regarding entry of judgment. M.M. lodged objections to the form of judgment, but Father did not. Although Father later filed a motion for new trial, he did not raise this issue in his motion. See Tex. R. App. P. 33.1(a)(1). Accordingly, Father may not raise this issue on appeal.” In re A.L.H., Nos. 14-16-00556-CV, 14-16-00578-CV, 2017 Tex. App. LEXIS 123, at *64 (Tex. App.—Houston [14th Dist.] Jan. 10 2017)
• Judgment: “Finally, Ordonez complains that the trial court’s judgment incorporates a settlement term allowing an assignment of the children’s interest in Grady’s estate [*28] to the Abrahams. The judgment provides: . . . Here, Ordonez likens any assignment to a “Mary Carter” agreement which in various contexts has been held void as violating public policy. . . . Ordonez acknowledges this is “not a pure Mary Carter agreement” but he claims the same evil exists because the tortfeasors are “buying cooperation from key Plaintiffs to minimize the value of the estate’s claim.” Appellees respond that the objection was never urged below and is accordingly waived. . . . . We agree and overrule Issue Three.” Ordonez v. Abraham, No. 08-14-00157-CV, 2017 Tex. App. LEXIS 204, at *27-29 (Tex. App.—El Paso Jan. 11 2017)
• Jury Charge: “Father asserts the trial court erred in submitting questions to the jury raising the issue of a material and substantial change in circumstances without also submitting instructions on res judicata and collateral estoppel as M.M. requested. Father has not preserved this issue. He neither objected to the omission of such instruction nor joined in M.M.’s objection. See Tex. R. App. P. 33.1(a)(1); . . . . In civil cases, unobjected-to charge error is not reversible unless it is fundamental, which occurs only “in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.” In re L.D.C., 400 S.W.3d 572, 574 (Tex. 2013) (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)).” In re A.L.H., Nos. 14-16-00556-CV, 14-16-00578-CV, 2017 Tex. App. LEXIS 123, at *63 (Tex. App.—Houston [14th Dist.] Jan. 10 2017)
• Personal Jurisdiction: “ Here, by filing the motion for new trial without having previously filed a special appearance, Gonzalez made a general appearance in the case. . . . Thus, Gonzalez waived any challenge to personal jurisdiction.” Gonzalez v. Remae, Inc., No. 09-15-00023-CV, 2017 Tex. App. LEXIS 428, at *7-9 (Tex. App.—Beaumont Jan. 19, 2017)
• Venue: “To the extent, if any, that Gonzalez challenges venue, we note that our review of the appellate record reflects that Gonzalez did not file a motion to transfer venue with the trial court. Generally, venue may be proper in many different counties and plaintiffs are given the right to choose where to file their case. . . . When a defendant does not properly challenge venue, then venue is fixed in the county in which the plaintiff filed suit. Id. To object to venue, the movant must file a written motion to transfer prior to or concurrently with any other plea, pleading, or motion; otherwise the objection to venue is waived. Tex. R. Civ. P. 86(1). Remae brought the lawsuit in Montgomery County and asserted the forum-selection clause in the guaranty agreement to support venue in Montgomery County. The burden of proof is not on the party seeking to enforce a forum-selection clause, but on the party challenging the [*9] clause to defeat venue in that county. . . . Here, Gonzalez did not file a proper motion seeking to transfer venue or challenge the forum-selection clause by one of the methods a party can use to challenge a forum-selection clause as established by the Texas Supreme Court in In re Lyon Fin. Servs., Inc. 257 S.W.3d 228, 231-32 (Tex. 2008). We conclude that Gonzalez waived any challenge to proper venue of the lawsuit. Therefore, we overrule Gonzalez’s challenge to jurisdiction and venue.” Gonzalez v. Remae, Inc., No. 09-15-00023-CV, 2017 Tex. App. LEXIS 428, at *7-9 (Tex. App.—Beaumont Jan. 19, 2017)
• Waiver: “Morales also argues that sovereign immunity is waived when a state agency intervenes in a UDJA suit; the record, however, does not show that the Division intervened in Morales’s UDJA suit, so we need not address that argument. Furthermore, Morales did not seek, in the proceedings below or on appeal, an opportunity to amend his pleadings to cure any jurisdictional defects, so we also need not address whether he is entitled an opportunity to replead. See Tex. R. App. P. 33.1(a).” Morales v. Tex. Dep’t of Ins.-Div. of Workers’ Comp., No. 03-14-00808-CV, 2017 Tex. App. LEXIS 296, at *8 n.8 (Tex. App.—Austin Jan. 13 2017)

Yours,

Steve Hayes

www.stevehayeslaw.com