November 11, 2019
Remember the Veterans on this Veterans Day.
For this issue of the blog, the following items make it into our Table of Contents:
Complaints don’t require magic words
Affirmative Defense (Bona Fide Purchaser)
Make sure you avoid trying an issue by consent
If you did not receive sufficient notice of a summary judgment hearing, you preserve your complaint by giving the trial court written notice of the complaint
Lack of subject matter can first be raised on appeal
From a bench trial, one can first complain on appeal about the sufficiency of the evidence to support trial court findings
You have to comply with the pertinent rules
You have to get a ruling on your complaint
Your complaint must be timely
Complaints don’t require magic words, as long as they are made know to the trial court:
Attorney (Appointed): “Initially, we address the Department’s argument that B.T. waived her right to counsel. . . .In the underlying case, on the first day of the trial on the merits, B.T. asked if she could “get an attorney. I need a court-appointed one, if you can.” Magic words were not required to bring the matter to the trial court’s attention to preserve error for appellate review. Sand Point Ranch, Ltd. v. Smith, 363 S.W.3d 268, 274 n.11 (Tex. App.—Corpus Christi 2012, no pet.). After a two-week recess, the trial court asked B.T. if she wanted an attorney “only if an extension [was] granted?” B.T. replied, “I need one regardless. I would like one.” The record shows that B.T. made her complaint known to the trial court and that the trial court ruled adversely to her. See Tex. R. App. P. 33.1(a)(1). B.T. provided the trial court with two opportunities to correct the decision to deny her appointed counsel thereby satisfying the rationale expressed in In re B.L.D.” In re J.F., No. 07-19-00174-CV, 2019 Tex. App. LEXIS 9755, at *14-15 (Tex. App.—Amarillo Nov. 6, 2019)
. . . . . .
Affirmative Defense (Bona Fide Purchaser): “Here, the Appellants’ counsel expressly stated at the beginning of trial: “If you fail to plead [bona fide purchaser as an affirmative defense], then you can’t argue it, so we’re not going to try it by consent in this case.” The Appellants’ counsel obtained a running objection on the matter and, additionally, objected three times to the relevance of opposing counsel’s line of questioning whenever the questioning broached an element of the bona fide purchaser affirmative defense. Each of the Appellants’ counsel’s objections were overruled by the trial court, and testimony on the affirmative defense allowed to continue. In their closing remarks, the Appellants’ counsel reiterated:
[T]here is really nothing to decide [in this case] other than the amount of the rents for the last two years . . . . Because at this point, it is too late to challenge title . . . . B[ona fide purchaser] is [an] affirmative defense to show that they have a superior interest, [*7] but it is an affirmative defense that wasn’t pled.
“An affirmative defense cannot be tried by consent when the opposing party makes an appropriate complaint.” 2000 GMC Sierra Truck v. State, No. 07-16-00356-CV, 2018 Tex. App. LEXIS 5575, 2018 WL 3543660, at *4 (Tex. App.—Amarillo July 23, 2018, no pet.) (mem. op.). Because the Appellants properly objected to the lack of a pleading supporting Gutierrez’s bona fide purchaser defense and to trial of the issue by consent, there was no trial by consent. See Tenet Health Sys. Hosp. Dallas, Inc. v. N. Tex. Hosp. Physicians Grp., P.A., 438 S.W.3d 190, 204 (Tex. App.—Dallas 2014, no pet.) (determining “there was no trial by consent” when the appellant objected to evidence of the appellee’s affirmative defense and to the lack of a pleading supporting the defense); Sorrell v. Elsey, 748 S.W.2d 584, 589 (Tex. App.—San Antonio 1988, writ denied) (“[Appellant] objected to the introduction of evidence supporting th[e] affirmative defense, and thus preserved error and prevented trial by consent.”).” Montoya v. Gutierrez, No. 04-19-00070-CV, 2019 Tex. App. LEXIS 9464, at *6-7 (Tex. App.—San Antonio Oct. 30, 2019)
Make sure you avoid trying an issue by consent:
Capacity: “To the extent Sterquell PSF contends appellants waived their right to challenge to Sterquell PSF’s status as a 635 LP partner, we disagree. Although appellants did not file a rule 93 verified “denial of partnership,” the record shows Sterquell PSF did not assert their “admission” argument below. See Highland Credit, 451 S.W.3d at 516. Rather, Sterquell PSF’s claimed status as a 635 LP partner was a primary focus of both sides’ arguments at trial. On this record, we conclude capacity was tried by consent. See id. at 517 (“[W]here capacity was clearly litigated, albeit mischaracterized as standing, we are reluctant to conclude that the issue has not been preserved for our review.”).” Malouf v. Sterquell PSF Settlement, L.C., No. 05-17-01343-CV, 2019 Tex. App. LEXIS 9789, at *14 (Tex. App.—Dallas Nov. 7, 2019)
If you did not receive sufficient notice of a summary judgment hearing, you preserve your complaint by giving the trial court written notice of the complaint:
Notice: “Third, [*8] Icon Bank argues that we must disregard the motion for continuance because the trial court never ruled on it, it was unsworn, and it lacked an affidavit. No ruling on the motion for continuance was required: a party preserves a complaint that he received inadequate notice by filing an affidavit or a written objection. See Big H Constr., 2011 Tex. App. LEXIS 2441, 2011 WL 1233594, at *2 & n.1; Hatler, 2010 Tex. App. LEXIS 777, 2010 WL 375807, at *2. The motion for continuance was a written objection.” Clarent Energy Servs. v. Icon Bank of Tex., N.A., No. 01-18-00854-CV, 2019 Tex. App. LEXIS 9739, at *7-8 (Tex. App.—Houston [1st Dist.] Nov. 7, 2019)
Lack of subject matter can first be raised on appeal:
Jurisdiction: “Whether the trial court [*3] had subject matter jurisdiction is a question of law we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The parties cannot waive subject matter jurisdiction and may raise it for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Where jurisdiction is raised for the first time on appeal, we must construe the pleadings and the record in favor of the party asserting jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012). If the pleadings or the record conclusively negate jurisdiction, then the suit should be dismissed. Id. . . . .Justice courts and county courts on appeal de novo have jurisdiction to determine the right to immediate possession in a forcible detainer suit. . . . . Where the right to immediate possession necessarily requires resolution of a title dispute, however, neither the justice court nor the county court on appeal has jurisdiction. . . . Where, as here, a party raises an issue of adverse possession, determining the right to immediate possession necessarily requires resolving a title dispute. Gibson v. Dynegy Midstream Servs., L.P., 138 S.W.3d 518, 524 (Tex. App.-Fort Worth 2004, no pet.); Gentry v. Marburger, 596 S.W.2d 201, 203 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). Because Hernandez raised an issue of adverse possession in her pro se letter [*4] to the trial court, in her trial testimony, and in her post-trial plea to the jurisdiction, the record conclusively negates the justice court’s and the trial court’s subject matter jurisdiction. See Dormady, 61 S.W.3d at 557-58. Accordingly, construing the record in favor of Martinez, we conclude the trial court lacked subject matter jurisdiction and sustain Hernandez’s first issue.” Hernandez v. Martinez, No. 04-19-00076-CV, 2019 Tex. App. LEXIS 9460, at *2-4 (Tex. App.—San Antonio Oct. 30, 2019)
From a bench trial, one can first complain on appeal about the sufficiency of the evidence to support trial court findings:
Legal Sufficiency: “As a preliminary matter, Bedford Hospitality contends that CCPA waived all its appellate complaints because it did not challenge the trial court’s findings of fact in the trial court and raised “only . . . very limited challenges to specific” fact-findings and conclusions on appeal. But because this was a nonjury trial, CCPA can challenge the sufficiency of certain findings for the first time on appeal. See Tex. R. App. P. 33.1(d). That CCPA does not challenge each of the trial court’s findings does not mean that it waived its [*10] right to challenge the specific findings pertinent to its complaints. See id.” CCPA Enters. v. Bedford Hosp. Invs., LLC, No. 02-17-00382-CV, 2019 Tex. App. LEXIS 9575, at *9 (Tex. App.—Fort Worth Oct. 31, 2019)
You have to comply with the pertinent rules:
Factual Sufficiency: “A complaint that a jury finding is “against the great weight and preponderance of the evidence” is “a complaint about factual sufficiency.” Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 322 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Dunlap-Bell [*3] did not file a motion for new trial. She therefore failed to preserve for our review her complaint that the jury’s finding of no personal-injury damages is against the great weight and preponderance of the evidence. See id. (party waived complaint that jury’s award of no attorney’s fees was against great weight and preponderance of evidence by not filing motion for new trial); see also In re C.E.M., 64 S.W.3d 425, 428 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (sole way to preserve factual sufficiency complaint is to make it in new-trial motion).
Because Dunlap-Bell failed to preserve for appellate review her sole issue, we overrule it. See Tex. R. Civ. P. 324(b)(2)-(4); see also Tex. R. App. P. 33.1(a)(1)(B) (compliance with rules of civil procedure required to preserve complaint).” Dunlap-Bell v. Gyatsyavichus, No. 01-19-00170-CV, 2019 Tex. App. LEXIS 9515, at *2-3 (Tex. App.—Houston [1st Dist.] Oct. 31, 2019)
Hearing Deadline: “The record illustrates that the trial court scheduled the hearing to begin within the initial statutory deadline, extended the deadline by appropriate order, and convened trial before the extension date lapsed, and heard some testimony from the caseworker. Thereafter, the Department’s attorney proposed recessing until a later date, to which proposal M.L.’s attorney voiced no objection. The latter also indicated he had filed a motion for continuance. The final hearing resumed on February 20, 2019, and continued over two other settings. M.L. now argues that the Department’s presentation at the initial hearing did not constitute the commencement of “trial on the merits” as required by § 263.401(a). M.L. waived her complaint given that the proceeding was controlled by the pre-September 2017 amendment to § 263.401(a).
The amendment applied to termination suits filed on or after September 1, 2017. In re T.W., 557 S.W. 3d 841, 843 n.2 (Tex. App.—Amarillo 2018, no pet.). The suit at bar was filed before then. And, under the pre-amended version, the statutory deadline was non-jurisdictional [*8] and required the parent to move for dismissal. See In re A.F., S.W.3d , , 2019 Tex. App. LEXIS 8563, at *9 (Tex. App.—Fort Worth Sept. 24, 2019, no pet. h.). M.L. filed no motion to dismiss.” In the Interest of F.R., No. 07-19-00215-CV, 2019 Tex. App. LEXIS 9670, at *7-8 (Tex. App.—Amarillo Nov. 4, 2019)
You have to get a ruling on your complaint:
Evidence: “Contending our evidentiary review should not consider UTMB’s evidence filed after the hearing, Durisseau reasserts the issues raised in her motion to strike. But the record does not show Durisseau obtained a ruling on her motion. As a prerequisite to presenting an evidentiary complaint for appellate review, the complaining party must object to the evidence and obtain a ruling. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (per curiam); Alaniz v. Rebello Food & Beverage, L.L.C., 165 S.W.3d 7, 19 n.19 (Tex. App.—Houston [14th Dist.] 2005, no pet.). To the extent Durisseau asserts UTMB’s evidence is outside the scope of our review, we conclude she failed to preserve these arguments because she did not obtain a ruling on her motion to strike or object to the trial court’s failure to rule on it. See Cal Dive Offshore Contractors Inc. v. Bryant, 478 S.W.3d 914, 921 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (appellant’s failure to obtain a ruling on motion to strike did not preserve his arguments for appellate review).” Univ. of Tex. Med. Branch at Galveston v. Durisseau, No. 14-18-00314-CV, 2019 Tex. App. LEXIS 9558, at *11 (Tex. App.—Houston [14th Dist.] Oct. 31, 2019)
Your complaint must be timely:
Jury Argument: “While Hopkins did not preserve her improper jury argument claims by making contemporaneous objections and obtaining rulings on the record at trial, her new trial motion included the improper jury argument claim she now asserts on appeal. We therefore must determine whether the complained-of argument was the type of “rare” argument that strikes “at the appearance of and the actual impartiality, [*6] equality, and fairness of justice rendered by courts,” causing incurable harm to the complaining party and judicial system. See Living Ctrs. of Tex., 256 S.W.3d at 681.
B. Was the complained-of argument incurable?
No. The argument was not incurable in context because the trial judge—who observed the entire trial—could have reasonably concluded on this record that (i) the comment was not so extreme and unsupported as to strike at the core of the judicial process and (ii) was not so inflammatory and prejudicial that its harmfulness could not have been eliminated by an instruction from the court.
Hopkins argues that Phillips’s counsel violated the Texas Disciplinary Rules and his argument was so prejudicial that it could not be cured by an instruction to disregard, prompt withdrawal of the statement, or a reprimand from the court. HN5 “Unsubstantiated attacks on the integrity or veracity of a party or counsel” has been cited as a type of jury argument that is deemed incurable. . . .
But on this record, we cannot conclude [*7] that the argument was without context or was so extreme that it struck “at the very core of the judicial process.” See Phillips v. Bramlett, 288 S.W.3d at 883. Specifically, the argument was made in response to Hopkins’s counsel’s pledge to the jury during voir dire to be “100-percent accurate and truthful” and his statement that he would own it if he wasn’t. And Hopkins’s counsel rebutted Phillips’s argument and thus had the opportunity to mitigate any harmful effects he thought the argument might have.
And while both counsel could have been more professional and respectful, we cannot conclude that the “probability that the argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.” Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979).” Hopkins v. Phillips, No. 05-18-01143-CV, 2019 Tex. App. LEXIS 9449, at *5-7 (Tex. App.—Dallas Oct. 29, 2019)
Then, as usual, a number of cases dealt with situations in which parties failed to make their complaint in the trial court, and thereby failed to preserve error.
All for now. Y’all have a good week.
Yours, Steve Hayes