Error Preservation in Texas Civil Cases, 10/7/19

October 7, 2019

Dear All:

Once again, there were not a lot of error preservation decisions last week–not unusual for this time of year.

Table of Contents

One case presented a reminder that a court of appeals will not consider, as a ground for reversing a summary judgment, an issue not expressly presented to the trial court by written motion, answer, or other response.

One case held that a party could first raise a complaint on mandamus to the court of appeals if the case involved “highly unusual circumstances” indicating that raising the complaint in the trial court would be “futile.”

Guardian ad Litem

The Blurbs

One case presented a reminder that a court of appeals will not consider, as a ground for reversing a summary judgment, an issue not expressly presented to the trial court by written motion, answer, or other response:

Summary Judgment: “In the context of summary judgments, “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (quoting Tex. R. Civ. P. 166a(c)). Thus, in order to preserve error for appeal, “[c]omplaints and argument on appeal must correspond with the complaint made at the trial court level.”. . . . Barrett argues on appeal that the written contracts between Valero and Elite and Berry did not obligate Valero to continue to provide coverage if the rolling owner controlled insurance program (ROCIP) was discontinued after the work began. Thus, Barrett claims that Valero did not “provide” workers’ compensation insurance coverage to Elite and Berry, which means Berry and Elite were not entitled to the exclusive remedy defense. See Tex. Lab. Code Ann. § 406.123(a). However, this does not correspond with the arguments raised by Barrett in response to Elite’s and Berry’s motions for summary judgment at the trial court level. [*7]

In response to Berry’s motion for summary judgment, Barrett argued that, based on the terms of the written contract, Berry was an independent contractor as opposed to a deemed employee, meaning Berry was not entitled to the protection of the exclusive remedy defense. Because Barrett’s argument that Valero did not “provide” Berry coverage has been made for the first time on appeal, this issue is waived. See Tex. R. Civ. P. 166a(c)); Wells Fargo Bank, 458 S.W.3d at 916.

Likewise, in response to Elite’s motion for summary judgment, Barrett raised four arguments: (1) Elite did not establish that the written contract to provide coverage was in force and effect at the time the incident occurred; (2) Elite did not establish that the written contract covered the specific time and location of the injury; (3) there was a genuine issue of material fact as to whether Valero qualified as a general contractor; and (4) the written contract described Elite as an independent contractor, which precluded Elite from claiming deemed employee status. Barrett addresses none of these issues on appeal and instead argues that Valero did not “provide” coverage to Elite because “the contracts provide that in the event that Valero does not elect to furnish workers’ compensation [*8] insurance, that Berry and Elite agree to furnish the insurance at their expense, as opposed to Valero’s.” Because Barrett’s appellate issue was not properly raised in the summary judgment proceedings at the trial court level, this issue is waived. See Tex. R. Civ. P. 166a(c); Wells Fargo Bank, 458 S.W.3d at 916.” Barrett v. Berry Contracting, L.P., No. 13-18-00498-CV, 2019 Tex. App. LEXIS 8811, at *6-8 (Tex. App.—Corpus Christi Oct. 3, 2019)

One case held that a party could first raise a complaint on mandamus to the court of appeals if the case involved “highly unusual circumstances” indicating that raising the complaint in the trial court would be “futile”:

Guardian ad Litem: “The Guardian ad Litem, in urging this Court to deny FBISD’s request for mandamus relief, argues that FBISD failed to preserve its complaints for mandamus review because it did not challenge the trial court’s actions in appointing the Guardian ad Litem in the trial court before it filed its first supplemental petition for writ of mandamus. The Guardian ad Litem cites a 2003 memorandum opinion from this Court, In re Bank of America, N.A., No. 01-02-00867-CV, 2003 Tex. App. LEXIS 8722, 2003 WL 22310800, at *2 (Tex. App.—Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) (mem. op.), for the proposition that a writ of mandamus is akin to an equitable remedy and “[e]quity is generally not served by issuing an extraordinary writ against a trial court on a ground that was never presented to the court and that the court thus had no opportunity to address.” In that opinion, this Court also noted that the standard of review to issue a writ of mandamus is abuse of discretion and that “[i]t would be hard to conclude, without circumstances that were highly unusual or that made a trial court’s ruling void, that a trial court could abuse its discretion in making a ruling for a reason that was never presented to the court.” Id. We conclude that this case presents such “highly unusual” circumstances. By appointing the Guardian ad Litem (and reappointing the Master in Chancery) after FBISD filed its nonsuit, the trial court acted contrary to well-established law and clearly abused its discretion. Moreover, in the order reappointing the Master in Chancery, the trial court characterized FBISD’s nonsuit as an “attempted” nonsuit, indicating that it did not believe it was governed by the law holding that a nonsuit renders the case moot. Under these circumstances, requiring FBISD to specifically object to the trial court’s appointment of the Guardian ad Litem and the Master in Chancery in proceedings it had nonsuited before filing its supplemental mandamus petitions would be futile.” In re Fort Bend Indep. Sch. Dist., No. 01-18-01113-CV, 2019 Tex. App. LEXIS 8852, at *27 n.2 (Tex. App.—Houston [1st Dist.] Oct. 3, 2019)

All for now.  Y’all have a good week.

Yours, Steve Hayes

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

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Error Preservation in Texas Civil Cases, 9/30/19

September 30, 2019

Dear All:

There were not a lot of error preservation decisions last week–not unusual for this time of year.

Table of Contents

  • A complaint about the lack of subject matter jurisdiction-such as a complaint that the trial court did not try a SAPCR before the dismissal deadline, nor properly extend that deadline-may be raised for the first time on appeal, and a party cannot consent to the lack of subject matter jurisdiction nor waive a complaint about it
  • You can also raise a no evidence complaint as to an expert’s testimony in a bench trial for the first time on appeal–an especially important point on a fight about attorney’s fees
  • One opinion held that a TCPA motion to dismiss was sufficiently specific to put the TCPA into play

The Blurbs

A complaint about the lack of subject matter jurisdiction-such as a complaint that the trial court did not try a SAPCR before the dismissal deadline, nor properly extend that deadline-may be raised for the first time on appeal, and a party cannot consent to the lack of subject matter jurisdiction nor waive a complaint about it:

  • Jurisdiction: “The thrust of the Department’s argument is that any complaint concerning the deadline is waived or estopped. But with the repeal of section 263.402(b), dismissal is jurisdictional, and jurisdiction may not be conferred by waiver or estoppel. Tex. Fam. Code Ann. §§ 263.401(a), (b), .402; see In re Crawford & Co., 458 S.W.3d 920, 928 n.7 (Tex. 2015) (orig. proceeding) (per curiam) (estoppel); Tellez v. City of Socorro, 226 S.W.3d 413, 414 (Tex. 2007) (per curiam) (waiver); Comptroller v. Landsfeld, 352 S.W.3d 171, 174 (Tex. App.—Fort Worth 2011, pet. denied) (both). Subject-matter [*29] jurisdiction is a power that exists by operation of law only, and it cannot be conferred upon any court by consent or waiver. Crawford, 458 S.W.3d at 928 n.7. And even if invited error or estoppel would otherwise bar Mother and Father’s complaints, we are required to review sua sponte issues affecting jurisdiction. In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per curiam); see Gore v. Gore, No. 05-13-01025-CV, 2014 Tex. App. LEXIS 2971, 2014 WL 1018650, at *1 (Tex. App.—Dallas Mar. 17, 2014, no pet.) (mem. op.) (reviewing jurisdiction sua sponte even where appellant’s complaint concerning jurisdiction would otherwise be precluded by estoppel); Castle & Cooke Mortg., LLC v. Diamond T Ranch Dev., Inc., 330 S.W.3d 684, 687 (Tex. App.—San Antonio 2010, no pet.) (rejecting argument that estoppel barred appellate court from considering jurisdiction). Accordingly, we need not decide whether Mother’s and Father’s actions constitute invited error or a basis for estoppel because, even if they did, “such doctrines cannot create subject-matter jurisdiction where it does not otherwise exist.” See Crawford, 458 S.W.3d at 928 n.7.” In re A.F., No. 02-19-00117-CV, 2019 Tex. App. LEXIS 8563, at *28-29 (Tex. App.—Fort Worth Sep. 24, 2019)

You can also raise a no evidence complaint as to an expert’s testimony in a bench trial for the first time on appeal–an especially important point on a fight about attorney’s fees:

  • Expert Witness (Attorneys’ Fees): “Although not included in his list of issues presented, Wilson also argues that the trial court erred in admitting the testimony of Daniel Kirschbaum, Henderson’s expert witness, that Henderson’s fees were reasonable. When Henderson called Kirschbaum to testify at trial, Wilson objected that Kirschbaum’s testimony did “not meet any of the Daubert/Robinson factors,” “fails the Gammill test,” and improperly relied on Henderson’s testimony. He also objected that Kirschbaum’s affidavit lacked specificity, although as the trial court noted, he had agreed to its admission into evidence. The court explained to Wilson, “if you have an objection that [a] certain opinion offered by him lacks foundation as those opinions are being elicited, the Court will receive your objection and rule upon it.” Wilson, however, did not make any such objection to Kirschbaum’s direct testimony. Consequently, we construe Wilson’s argument on appeal [*17] as a no-evidence complaint. See Reisler v. Reisler, 439 S.W.3d 615, 623 (Tex. App.—Dallas 2014, no pet.) (party who did not object to expert’s testimony at trial may argue on appeal that expert’s testimony constitutes no evidence and is mere conclusion); see also TEX. R. APP. P. 33.1(d) (in civil nonjury case, complaint regarding legal or factual sufficiency of evidence may be made for first time on appeal).” Wilson v. Henderson, No. 05-18-00714-CV, 2019 Tex. App. LEXIS 8606, at *16-17 (Tex. App.—Dallas Sep. 24, 2019)

One opinion held that a TCPA motion to dismiss was sufficiently specific to put the TCPA into play. I’ve copied all of that discussion here so you could have the benefit of it:

  • Texas Citizen’s Participation Act:

3. Soleil’s argument that Rogers and RRK did not preserve error fails.

Soleil’s appellate brief makes no substantive argument challenging the application of the TCPA. Instead, it challenges the form of Rogers’s and RRK’s motions to dismiss, claiming that the motions presented only one sentence of argument that the TCPA applied to Soleil’s suit and that Rogers and RRK did not fully develop that argument until filing a reply to Soleil’s response. We are unpersuaded.

Initially, Soleil does not tell us why the motions were deficient. Both motions contain similar grounds. Though not elaborate, the allegations make the basic point of which TCPA right Rogers and RRK are invoking and why they contend that right protects them:

The pleadings on file and the supporting affidavit(s) show by a preponderance of the evidence that Plaintiff’s causes of action [for] slander, libel, defamation of character, intentional infliction of emotional distress, interfering with economic benefit[,] and fraud[] are based [on] Defendant’s exercise of his First Amendment . . . right of free speech as defined in Texas Civil Practice and Remedies Code § 27.001 and demonstrate that Plaintiff has failed to establish by clear and specific [*16] evidence a prima facie case for each essential element of Plaintiff’s claim(s). Richard Rogers has exercised his First [A]mendment rights to speak out against a good, product, or service in the marketplace[,] which is a matter of public concern under Tex. Civ. Prac. & Rem. Code [Ann.] § 27.001(7)(E)[.] [Emphasis added.]

Though not artful in their description of Soleil’s claims, Rogers and RRK’s grounds communicate the basic premise of a motion to dismiss: the TCPA applies because Rogers and RRK were exercising a TCPA-defined right of free speech.

Nor does Soleil cite any case suggesting that the motions’ grounds are deficient. In fact, Soleil cites only two federal cases for the irrelevant proposition that arguments raised for the first time in a reply are untimely:  Gillaspy v. Dallas Ind. Sch. Dist., 278 [F. App’x] 307, 315 (5[th] Cir. 2008) (“It is the practice of this court and the district courts to refuse to consider arguments raised for the first time in reply briefs[.”]); Springs Indus. Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 238, 240 (N.D. Tex. 1991).

Soleil’s failure to cite cases that support its position is understandable as the caselaw is contrary to its argument. First, the supreme court has warned the courts of appeals not to be “too strict” in their application of [*17] error-preservation principles in TCPA cases. See Adams, 547 S.W.3d at 896-97. In Adams, a party’s mentioning the nature of the public concern at a TCPA-motion-to-dismiss hearing preserved error. Id. The supreme court buttressed this holding with the concept that we have already mentioned: “the unique language of the TCPA directs courts to decide its applicability based on a holistic review of the pleadings.” Id. at 897. Adams instructs that while conducting a de novo review, it is our role to decide, as a matter of law, whether the petition is based on or related to a matter of public concern and not to become mired in a microscopic analysis of error preservation:

We have not previously cabined our TCPA analysis to the precise legal arguments or record references a moving party made to the trial court regarding the TCPA’s applicability. Our focus instead has been on the pleadings and on whether, as a matter of law, they are based on or relate to a matter of public concern.

Id.; see also Morrison, 578 S.W.3d at 681 (holding that motion to dismiss—which stated conclusory allegation that suit involved a matter of public concern because its statements concerned goods, products, or services in the marketplace—preserved error because “to determine the [*18] basis of a legal action for purposes of the first step in the dismissal procedure, it is necessary to consider the plaintiff’s petition, which is ‘the “best and all-sufficient evidence of the nature of the action”‘” (quoting Hersh, 526 S.W.3d at 467)). The grounds recited in Rogers’s and RRK’s motions to dismiss are not elaborate, but they certainly raise an issue that is our responsibility to determine as a matter of law: does the TCPA apply to the allegations in Soleil’s petition?”

Richard Rogers & Rrk Real Estate Invs. & Holdings v. Soleil Chtd. Bank, No. 02-19-00124-CV, 2019 Tex. App. LEXIS 8679, at *15-18 (Tex. App.—Fort Worth Sep. 26, 2019)

There were a few cases in which the parties failed to raise the complaint in the trial court.

Y’all take good care.

Yours,

Steve Hayes

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

Error Preservation in Texas Civil Cases, 9/14/19

September 14, 2019

Dear Folks:

The volume of decisions has followed its annual abatement trend since the end of the fiscal year on August 31. Both the justices and the staff attorneys had their respective annual meetings the first full week of September, and the Advanced Civil Appellate Seminar took place that same week. But the justices and staff attorneys have gotten back into the saddle, and we should expect the pace of decisions to pick up.

Table of Contents for This Blogpost

Exercise extreme caution when drafting or signing an agreed judgment, in terms of differentiating whether all parties agree only as to form, or also as to substance

You must present your complaint in a timely fashion

Notice

The Blurbs

Exercise extreme caution when drafting or signing an agreed judgment, in terms of differentiating whether all parties agree only as to form, or also as to substance:

Judgment: “A judgment entered upon the agreement of the parties cures all non-jurisdictional defects. One 2000 Int’l Truck Tractor v. State, No. 01-11-00072-CV, 2012 Tex. App. LEXIS 9247, 2012 WL 5458421, at *1 (Tex. App.—Houston [1st Dist.] Nov. 8, 2012, no pet.) (mem. op.) (citing Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). A party may revoke its consent to a settlement agreement at any time before an agreed judgment is rendered on the agreement. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); see also In the Matter of Marriage of Long, 946 S.W.2d 97, 99 (Tex. App.—Texarkana 1997, no pet.). But a party may not challenge such a judgment or defects in the proceedings in the case absent an allegation of fraud, collusion, or misrepresentation. See Authorlee v. Tuboscope Vetco Int’l, Inc., 274 S.W.3d 111, 119 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also Mailhot, 124 S.W.3d at 777 (holding party who asks trial court to accept settlement agreement and enter judgment accordingly may not later attack that judgment). To preserve error for appeal, a party who signs a judgment must specify that his agreement with the judgment is as to form, but not as to substance and outcome. See First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); see also Mailhot, 124 S.W.3d at 777. Here, as noted above, on behalf of appellant, Matherne signed the Agreed Final Judgment under the words, “AGREED AND ENTRY REQUESTED” and there was no language limiting his consent as to form, but not as to substance. Thus, appellant did not preserve error to complain about the Agreed Final Judgment, and she has waived the right to complain about it after asking the trial court to accept the agreement. See Fojtik, 775 S.W.2d at 633; see also Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.—Houston [1st Dist.] 1995, writ denied).” Reule v. Sherwood Valley I Council of Co-Owners, Inc., No. 01-17-00593-CV, 2019 Tex. App. LEXIS 8130, at *4 (Tex. App.—Houston [1st Dist.] Sep. 5, 2019)

Judgment: “The judgment is titled “Agreed Final Judgment,” and Reedom signed the judgment as “Agreed to,” not just “agreed as to form.” This language is not necessarily sufficient to establish that the judgment is agreed, however, and appellate courts are not unanimous on the issue of whether a judgment can be challenged on appeal when it appears to be agreed but, like the Agreed Final Judgment, “has no recitation of the agreement in the body of the order itself.” Estate of Nielsen, 2018 Tex. App. LEXIS 7915, 2018 WL 4625531, at *4. However, here the Agreed Final Judgment further recited that “[t]he parties announced an agreement” and that the court was rendering judgment after hearing that agreement. Thus, the judgment reflects that an agreement existed and also that the county court had evidence of both its existence and its substance. Contra Bexar Cty. Crim. Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ) (stating that the word “Approved,” in the judgment signed by the appellant, with nothing more, did not indicate a consent judgment when “[n]othing in the body of the judgment suggests that the case had been settled or that judgment was rendered by consent” and that “[t]here are no other indications of agreement in the record”).

Nothing in the record indicates that Reedom signed [*4] the Agreed Final Judgment under protest or in any way indicated to the county court that it did not reflect the parties’ agreement. Contra Baw, 949 S.W.2d at 767 (holding that despite signing the divorce decree as “approved and consented to as to both form and substance,” the appellant, “by his objections to the trial court’s characterization of the [profit-sharing-retirement-trust] plan, did not explicitly and unmistakably give his consent to that portion of the divorce decree and did not waive his right of appeal”). He does not argue that the judgment erroneously states the existence of an agreement when none existed or that he did not agree to the terms of the judgment. In fact, he makes no argument at all about whether the Agreed Final Judgment was an agreed judgment. Nor does he argue that the county court did not have jurisdiction to render the Agreed Final Judgment. See Pillitteri, 165 S.W.3d at 718. Instead, he appears to complain about the dismissal of a federal lawsuit he filed against Woodstock and whether the dismissal was proper under federal rules of civil procedure. Accordingly, he has waived his issues on appeal.” Reedom v. 5950 Boca Raton LP, No. 02-18-00269-CV, 2019 Tex. App. LEXIS 7664, at *3-4 (Tex. App.—Fort Worth Aug. 26, 2019)

You must present your complaint in a timely fashion:

Notice: “Etienne argues in the alternative that the trial court abused its discretion in granting State Farm’s motion because the insurance policy required State Farm to give her ten days’ written notice before moving for appointment of an umpire, and she contends that State Farm failed to do so. But, Etienne neither responded to State Farm’s motion for appointment of an umpire nor appeared at the hearing on the motion. Having failed [*7] to timely raise this complaint, it is waived. See Tex. R. App. P. 33.1(a)(1). Moreover, and as State Farm points out, the trial court’s local rules provide that “[f]ailure to file a response may be considered a representation of no opposition.” Harris Cty. (Tex.) Co. Ct. At Law Loc. R. 3.3.3. Given Etienne’s failure to respond to State Farm’s motion or to appear at the hearing, the trial court did not abuse its discretion in granting the motion.” Etienne v. State Farm Lloyds, No. 14-18-00665-CV, 2019 Tex. App. LEXIS 8195, at *6-7 (Tex. App.—Houston [14th Dist.] Sep. 10, 2019)

A few cases dealt with situations in which the parties failed to raise their complaint in the trial court.

I hope this helps.  Have a great rest of the weekend.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, 9/2/19

September 2, 2019

Dear All:

Well, here we are at Labor Day–we may have the most brutal days of summer behind us, we can look forward to autumn, and the courts of appeals closed out the last week of their fiscal years (on August 31).  As usual, they issued a lot of opinions, and a lot of opinions which involved error preservation. Overwhelmingly, the error preservation decisions involved complaints which parties failed to raise at all in the trial court. Because of the volume of error preservation decisions, and the fact that most don’t add much to the jurisprudence, I’ve included only a few such decisions below–ones which I thought might help you, or give you a template to follow.

Table of Contents

One court explained why an appellant had expressly presented an issue in response to a no-evidence motion for summary judgment

A complaint about the failure to continue a summary judgment cannot be preserved by oral motion–it requires a written motion supported by an affidavit

Understand the dangers of signing a judgment as “agreed to,” instead of “agreed to as to form, only:”

You must make your complaint in a timely manner–and comply with the pertinent rules

Findings and Conclusions
Limitations

The Blurbs

One court explained why an appellant had expressly presented an issue in response to a no-evidence motion for summary judgment:

Summary Judgment: “The City claimed in a letter notifying WIL of a violation of the reinstatement agreement for advertising for rental a “lakefront cabin with water trampoline” and “luxury lakefront mansion.” As we have discussed, the “luxury lakefront mansion” advertisement is in the record and constitutes a violation of the agreement as to lot 43. However, the alleged “lakefront cabin with water trampoline” advertisement is not in the record. Consequently, WIL claims that the City breached the agreement and improperly evicted it on lot 46. The City argues that WIL waived consideration of this issue because this argument was raised for [*16] the first time on appeal. We disagree. Issues a nonmovant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also Tex. R. Civ. P. 166a(c). In a no-evidence motion for summary judgment, after the movant specifies the elements for which there is no evidence, the burden then shifts to the nonmovant to produce evidence raising a genuine issue of material fact on the elements specified in the motion. Tex. R. Civ. P. 166a(i); Mack Trucks, 206 S.W.3d at 582. The nonmovant is “not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Tex. R. Civ. P. 166a(i), cmt. WIL satisfied this burden. WIL’s response to the City’s motion included the issue that it complied with the reinstatement agreement, that it performed its obligations under the agreement, and that termination of the leases and eviction was improper. It specifically identified and attached evidence to its response to the motion, including James Wasson’s deposition testimony. In it, he stated that he never rented either the large house or the cabin after the parties executed the reinstatement agreement. Furthermore, at times during Wasson’s testimony, counsel referred to advertisements generally, but he was presented only with the advertisement for the large home and specifically questioned about that advertisement. As we have stated, there is no advertisement in the record for the cabin on lot 46. Accordingly, this ground was before the trial court, WIL presented more than a scintilla of evidence that it complied with the reinstatement agreement as to the cabin, and the City failed to conclusively negate it. WIL raised a fact issue as to whether the City’s termination of the lease for lot 46 and eviction was improper.” Wasson Interests v. City of Jacksonville, No. 12-13-00262-CV, 2019 Tex. App. LEXIS 8022, at *15-17 (Tex. App.—Tyler Aug. 30, 2019)

A complaint about the failure to continue a summary judgment cannot be preserved by oral motion–it requires a written motion supported by an affidavit:

Continuance (Summary Judgment): “At the end of the hearing on Appellees’ motion for summary judgment Royale informed the trial court, “I would make a motion . . . [under] Texas Rule of Civil Procedure 215(1)(b)3(d) [sic] to compel discovery.” . . . . When a party contends that he has not had an adequate time for discovery before a summary judgment hearing, he must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tex. R. Civ. P. 166a(g), 251, 252; . . . . Royale did not file a verified motion for continuance or an affidavit explaining the need for further discovery. Accordingly, he has waived any argument that the trial court allowed an inadequate time for discovery or that Appellees’ motion for summary judgment was premature.” Royale v. Knightvest Mgmt., No. 05-18-00908-CV, 2019 Tex. App. LEXIS 8042, at *31-32 (Tex. App.—Dallas Aug. 30, 2019)

Understand the dangers of signing a judgment as “agreed to,” instead of “agreed to as to form, only:”

Judgment: “The judgment is titled “Agreed Final Judgment,” and Reedom signed the judgment as “Agreed to,” not just “agreed as to form.” This language is not necessarily sufficient to establish that the judgment is agreed, however, and appellate courts are not unanimous on the issue of whether a judgment can be challenged on appeal when it appears to be agreed but, like the Agreed Final Judgment, “has no recitation of the agreement in the body of the order itself.” Estate of Nielsen, 2018 Tex. App. LEXIS 7915, 2018 WL 4625531, at *4. However, here the Agreed Final Judgment further recited that “[t]he parties announced an agreement” and that the court was rendering judgment after hearing that agreement. Thus, the judgment reflects that an agreement existed and also that the county court had evidence of both its existence and its substance. Contra Bexar Cty. Crim. Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ) (stating that the word “Approved,” in the judgment signed by the appellant, with nothing more, did not indicate a consent judgment when “[n]othing in the body of the judgment suggests that the case had been settled or that judgment was rendered by consent” and that “[t]here are no other indications of agreement in the record”).

Nothing in the record indicates that Reedom signed the Agreed Final Judgment under protest or in any way indicated to the county court that it did not reflect the parties’ agreement. Contra Baw, 949 S.W.2d at 767 (holding that despite signing the divorce decree as “approved and consented to as to both form and substance,” the appellant, “by his objections to the trial court’s characterization of the [profit-sharing-retirement-trust] plan, did not explicitly and unmistakably give his consent to that portion of the divorce decree and did not waive his right of appeal”). He does not argue that the judgment erroneously states the existence of an agreement when none existed or that he did not agree to the terms of the judgment. In fact, he makes no argument at all about whether the Agreed Final Judgment was an agreed judgment. Nor does he argue that the county court did not have jurisdiction to render the Agreed Final Judgment. See Pillitteri, 165 S.W.3d at 718. Instead, he appears to complain about the dismissal of a federal lawsuit he filed against Woodstock and whether the dismissal was proper under federal rules of civil procedure. Accordingly, he has waived his issues on appeal.” Reedom v. 5950 Boca Raton LP, No. 02-18-00269-CV, 2019 Tex. App. LEXIS 7664, at *3-4 (Tex. App.—Fort Worth Aug. 26, 2019)

You must make your complaint in a timely manner–and comply with the pertinent rules:

Findings and Conclusions: “Father filed his request for findings and conclusions under rule of civil procedure 296. Rule of civil procedure 296 provides that in “any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law.” Tex. R. Civ. P. 296. Once properly requested, a trial court has twenty days to file its findings of fact and conclusions of law, and if the trial court fails to do so, the requesting party must notify the trial court within thirty days after filing the original request. Tex. R. Civ. P. 297. When a party notifies the trial court of its failure to file findings and conclusions, but the notice is untimely, the requesting party has waived the right to complain on appeal. See Vee Bar, Ltd. v. BP Amoco Corp., 361 S.W.3d 128, 131 (Tex. App.—El Paso 2011, no pet.) (holding ranch owners waived any right to complain on appeal about trial court’s failure to file findings of fact and conclusions of law where owners’ filing of past-due-findings notice in trial court was untimely). Here, the trial court signed its final modification order on December 20, 2018. On January 9, 2019, Father timely filed a request for findings of fact and conclusions of law. Then, on February 12, 2019, Father notified the trial court of past-due findings of fact and conclusions of law. Father’s notice of past-due findings and conclusions was not timely because it was more than thirty days after the January 9, 2019 request. Therefore, even if Father could claim an entitlement to findings under rule 296, he waived that entitlement.”  In the Interest of T.M., No. 02-19-00114-CV, 2019 Tex. App. LEXIS 7679, at *15-16 (Tex. App.—Fort Worth Aug. 26, 2019)

Limitations: “On appeal, Silverman admits that the trial court’s findings and conclusions and judgment did not specify the years from which the trial court derived each portion of the recovery amount, but she asserts that we must “assume[] that the portion of the 2013 debt included within was limitations-barred.” We disagree. It was Silverman’s burden to show that a portion of the Association’s requested recovery was time-barred and ensure the appropriate findings were entered. See Tex. R. Civ. P. 299; Payne, 381 S.W.3d at 618-19. By failing to do so she has waived any error by the trial court’s failure to find on her affirmative defense or by the trial court’s damage award.” Silverman v. Clairemont H.A., Inc., No. 02-18-00380-CV, 2019 Tex. App. LEXIS 7820, at *13-14 (Tex. App.—Fort Worth Aug. 28, 2019)

That’s all for right now.  Enjoy the rest of the holiday, and I hope to see you at the Advanced Civil Appellate Seminar later this week.

Yours,

Steve Hayes

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

Error Preservation in Texas Civil Cases, August 24, 2019

August 24, 2019

Dear All:

As we come to the end of the fiscal year for the courts of appeals, here are some of the error preservation decisions from last week.

Table of Contents

You don’t have to cite the specific case in your summary judgment response in order to rely on that case on appeal—merely arguing its premise is sufficiently specific

A party can first raise the issue of governmental immunity on appeal

You have to obtain a ruling—including on discovery issues

You have to comply with the pertinent rules, such as on Default Judgments.

Here are the opinion compilations on the foregoing issues

You don’t have to cite the specific case in your summary judgment response in order to rely on that case on appeal—merely arguing its premise is sufficiently specific:

Summary Judgment:  “Kroger argues that Mendoza waived any argument under Corbin by not relying on it in the trial court. We cannot agree. We see no legal basis for Kroger’s argument that application [*14]  of Corbin in a premises-defect case can be waived by failure to cite to the case. It has never been the law that a particular case must be cited to argue the application of its underlying principle. Cf., e.g., Tex. Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536 (Tex. 2012) (“Casteel error may be preserved without specifically mentioning Casteel.”). Mendoza was not required to cite to Corbin to rely on its legal principles. Even if she were required to have done so, Mendoza specifically argued in response to Kroger’s summary-judgment motion that “the water refill station placed in a high foot traffic area posed an unreasonable risk of harm in itself . . . .” This argument that the self-serve water dispenser presented an unreasonably dangerous condition aligns with the Corbin analysis and invites analysis of Kroger’s knowledge focused on the water dispenser versus the fallen water.”  Hernandez v. Kroger, No. 01-18-00562-CV, 2019 Tex. App. LEXIS 7555, at *13-14 (Tex. App.—Houston [1st Dist.] Aug. 22, 2019)

A party can first raise the issue of governmental immunity on appeal.

Governmental Immunity:  “TxDOT correctly asserts that we must address this argument. HN5 Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code does not divest appellate courts of authority to review immunity claims first asserted on interlocutory appeal. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). In this situation, we “must construe the pleadings in favor of the party asserting jurisdiction, and if necessary, review the record for evidence supporting jurisdiction.” Id. at 96. If the pleadings and record neither demonstrate jurisdiction nor conclusively negate it, the defendant bears the burden of showing the plaintiff failed to show or would be unable to show jurisdiction. Id. If the defendant meets this burden, then we must dismiss the plaintiff’s case; otherwise, we remand [*10]  the cause to the trial court for further proceedings. Id.”  Tex. DOT v. Markham, No. 04-18-00812-CV, 2019 Tex. App. LEXIS 7376, at *9 (Tex. App.—San Antonio Aug. 21, 2019)

You have to obtain a ruling:

Discovery: “ In order to preserve error, a party must make a timely request for relief and obtain a ruling from the trial court. Tex. R. App. P. 33.1(a). Addison waited to request limited discovery until the very day of the hearing at which it was supposed to present its prima facie case. Although Addison raised its conditional request for discovery during the hearing, Addison did not obtain a ruling on the requested discovery either at the hearing or in the trial court’s written order. Addison, therefore, failed to preserve its cross-point for our review.”  ETC Tex. Pipeline, Ltd. v. Addison Expl. & Dev., LLC, No. 11-18-00152-CV, 2019 Tex. App. LEXIS 7524, at *32 (Tex. App.—Eastland Aug. 22, 2019)

Discovery: “We conclude Criswell failed to preserve his complaint about whether the Allisons failed to produce documents to comply with his request to produce. While Criswell obtained a ruling on his request that the Allisons organize and label their production, he never got a ruling on his motion to compel them to produce more documents. Because Criswell failed to preserve the alleged error, we overrule his second issue.”  Criswell v. Allison, No. 09-18-00003-CV, 2019 Tex. App. LEXIS 7540, at *8 (Tex. App.—Beaumont Aug. 22, 2019)

Discovery: “ Buholtz does not show, and nothing in the record indicates, he requested a hearing on either his motion to compel or the other motions. Thus, to the extent Buholtz complains the trial court erred in not ruling on the motions, he has failed to preserve the complaint for our review. See Tex. R. App. P. 33.1.”  Buholtz v. Gibbs, No. 05-18-00957-CV, 2019 Tex. App. LEXIS 7469, at *14 (Tex. App.—Dallas Aug. 21, 2019)

You have to comply with the pertinent rules:

Default Judgment (New Trial): “Here, [*5]  Maldonado did not file a motion for a new trial, and her attack on the judgment relies on extrinsic evidence. Accordingly, Maldonado failed to preserve this issue for our review. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 324(b).”  Maldonado v. Medrano, No. 13-18-00525-CV, 2019 Tex. App. LEXIS 7453, at *4-5 (Tex. App.—Corpus Christi Aug. 22, 2019)

There were also a number of cases in which courts held that parties failed to preserve error because they failed to raise their complaint in the trial court.

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

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, August 17, 2019

August 17, 2019

Hello, Buckaroos:

Here are some of the error preservation decisions from last week.

Table of Contents

Your complaint must be timely–which, for a complaint about a visiting judge, means it cannot be made before his/her assignment, and must be made within seven days thereafter

Judge (visiting)
Pleading

You have to comply with the pertinent rules

Evidence

You have to get a ruling on your complaint–and the granting of a summary judgment motion does not necessarily amount to such a ruling on a motion for leave to designate an expert

Expert Designation
Evidence

The Blurbs

Your complaint must be timely–which, for a complaint about a visiting judge, means it cannot be made before his/her assignment, and within seven days thereafter:

Judge (visiting): “McCann claims that he preemptively objected to the judge in his original petition. His petition asserted his objection “to the referral of this case to any judge not elected to the district filed in.” This objection, however, was improper. See In re Carnera, 05-16-00055-CV, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2 (Tex. App.—Dallas Jan. 27, 2016, no pet.).  “A party does not possess the right to object to the assignment of a visiting [*7] judge before the assignment takes place.” Id. (citing Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 887 (Tex. App.—El Paso 1993, no writ)). “Section 74.053 clearly contemplates that assigned judge objections will be filed after the assignment of a judge to whom a party objects, not that parties can file pro forma blanket objections to assigned judges at the time they file their initial pleadings.” Id. Here, McCann filed his original petition and objection on April 30, 2018, but Judge Johnson was not appointed until May 3, 2018. Accordingly, the objection in his original petition did not preserve this issue. McCann later wrote a formal “Objection to Assigned Judge.” The certificate of service on this objection reflects the date of May 11, 2018, . . . . However, assuming but not deciding that McCann placed his objection in the prison mail system on May 11, 2018, as he claims, that date is eight days after the appointment of Judge Johnson on May 3, 2018. Because the deadline for filing objection to judges is seven days after the notice of appointment or the case’s [*9] first hearing, whichever is sooner, McCann missed the deadline. See Tex. Gov’t Code Ann. § 74.053. We conclude that McCann did not submit a timely objection to the assignment of Judge Johnson. See id. Judge Johnson thus had jurisdiction to hear the case. See id. We overrule McCann’s second issue.” McCann v. De Hoyos, No. 13-18-00528-CV, 2019 Tex. App. LEXIS 7143, at *6-9 (Tex. App.—Corpus Christi Aug. 15, 2019)

Pleading: “In its second issue, Zimmerman complains that the trial court abused its discretion by instructing Pastran to amend her pleadings to allege gross negligence against Zimmerman. The record, however, does [*17] not support Zimmerman’s characterization of what occurred. . . . Zimmerman agreed that Pastran was entitled to get information on the disputed issues if she pleaded gross negligence on the part of the employer. Zimmerman further agreed that Pastran could amend her pleadings [*18] and later, depending on what discovery revealed, amend again to drop the gross negligence claim. The court then addressed counsel for Pastran: “Okay. So why don’t you do that, Mr. Langford?” The record does not reflect that Pastran made any response, nor does it reflect that Zimmerman made any objection to the court’s question. Indeed, there was no further discussion of the subject and the hearing ended. Approximately ten days later, Pastran amended her petition to allege gross negligence against Zimmerman. To preserve error for appellate review, a party must make a timely request, objection, or motion stating the grounds with sufficient specificity to make the trial court aware of the complaint. Tex.R.App.P. 33.1. The record does not contain any such timely request, objection, or motion challenging the propriety of the trial court’s question to Pastran. Rather, the complaint was raised for the first time in Zimmerman’s motion for new trial, almost two years later. The issue is not preserved for review.”  Zimmerman Truck Lines v. Pastran, No. 08-17-00131-CV, 2019 Tex. App. LEXIS 7252, at *16-19 (Tex. App.—El Paso Aug. 16, 2019)

You have to comply with the pertinent rules:

Evidence: “”Further, in order to preserve error regarding any other alleged drug use by Erica, Brittney and Andre were each required to inform the trial court of the substance of the excluded evidence by an offer of proof, which neither of them did. See Tex. R. Evid. 103(a)(2). Because of this, we are unable to determine what additional evidence would have been offered and cannot determine whether the evidence would have been admissible or not. Brittney and Andre’s complaints were not properly preserved.” In the Interest of A.L.F., No. 10-19-00187-CV, 2019 Tex. App. LEXIS 7132, at *4 (Tex. App.—Waco Aug. 14, 2019)

You have to get a ruling on your complaint–and the granting of a summary judgment motion does not necessarily amount to such a ruling on a motion for leave to designate an expert:

Expert Designation: “We first address Hendryx’s sub-issue contending that the trial court erred in failing to rule on his motion for leave to designate Barnes as an expert witness. . . . In Seim, the trial court’s granting of the defendant’s [*9] summary judgment motion did not serve as an implicit ruling on the defendant’s objections to summary judgment evidence because “even without the objections, the trial court could have granted summary judgment against the [plaintiffs] if it found that their evidence did not generate a genuine issue of material fact.” Id. at 166. Similarly, the trial court’s granting of summary judgment in favor of appellees in this case did not necessarily imply that the trial court denied Hendryx’s motion for leave. Instead, even if the trial court believed the motion for leave was meritorious, it still could have granted summary judgment if it found Hendryx’s evidence did not generate a genuine issue of material fact. See id.; see also Tex. R. Civ. P. 166a(i). Therefore, to the extent this sub-issue asserts that the trial court implicitly denied Hendryx’s motion for leave, we disagree. Instead, we conclude that Hendryx has forfeited any merits-based review of his motion for leave because he never obtained a ruling thereon, and he never objected to the trial court’s failure to rule. See Tex. R. App. P. 33.1(a)(2); Seim, 551 S.W.3d at 165-66. This sub-issue is overruled.” Hendryx v. Tucker, No. 13-18-00445-CV, 2019 Tex. App. LEXIS 7146, at *8-9 (Tex. App.—Corpus Christi Aug. 15, 2019)

Evidence: “Hamilton asserts that the letter from the attorney for BioUrja Trading, LLC and Hamilton Metals, LLC amounts to inadmissible hearsay. Hamilton waived the hearsay objection by failing to get a ruling from the trial court. . . . Hamilton asserts that the documents filed as part of Millman’s affidavit amount to inadmissible hearsay and that there was no authentication of these documents. Hamilton waived the hearsay objection by failing to secure a ruling on it from the trial court. . . .Hamilton asserts that the answer PNC Bank filed in the garnishment proceeding constitutes inadmissible hearsay. Hamilton failed to get a ruling on this objection and thus waived it.” Hamilton Metals, Inc. v. Glob. Metal Servs., No. 14-17-00670-CV, 2019 Tex. App. LEXIS 7050, at *19-21 (Tex. App.—Houston [14th Dist.] Aug. 13, 2019)

All for now.  I hope this helps.

Yours, Steve Hayes.

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

Error Preservation in Texas Civil Cases, August 10, 2019

August 10, 2019

Dear All:

Here are some of the error preservation decisions from the last few days.

Table of Contents

This case involved an extensive discussion about when including an instruction in a charge caused such egregious harm that it amounted to fundamental error that a complaint about it could first be raised on appeal

Just putting a footnote in a pleading about reserving a right to complain about something does not preserve that complaint

Capacity

You have to get a ruling on your complaint

Discovery
Experts
Experts

The Blurbs

This case involved an extensive discussion of when including an instruction in a charge caused such egregious harm that it amounted to fundamental error that a complaint about it could first be raised on appeal:

Jury Charge (Juvenile): “The Texas Rules of Civil Procedure generally govern the jury charge in juvenile proceedings. Tex. Fam. Code Ann. § 56.01(b); see In re L.D.C., 400 S.W.3d 572, 574 (Tex. 2013). But a juvenile proceeding is quasi-criminal; thus, criminal law precedent may be instructive in juvenile cases. See In re C.O.S., 988 S.W.2d 760, 765-67 (Tex. 1999). In criminal cases, jury-charge error is reviewed using a two-step process. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). First, the court determines whether error exists in the charge. Id. If there is error, we determine if the appellant has been harmed: “The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection.” Id. If an appellant has preserved the error by objection, we must reverse if we find “some harm” to his rights. See id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). But where there is no objection, we will not reverse for jury-charge error unless the record shows “egregious harm” to the appellant. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to preserve jury-charge error is not a bar to appellate review, but rather it establishes the degree of harm necessary for reversal.”).

M.S. did not object to the legal-duty law of parties instruction in the jury charge. When the charge error is not preserved “and the accused must claim that [*6] the error was ‘fundamental,’ [she] will obtain a reversal only if the error is so egregious and created such harm that [she] ‘has not had a fair and impartial trial’—in short ‘egregious harm.'” . . . Although there is evidence in the record that supports a conviction under the aiding section of the law of parties, it is equally likely the jury may have convicted M.S. under the legal-duty theory and exposed appellant to conviction under an invalid theory. The charge erroneously allowed the jury to convict M.S. of capital murder and aggravated robbery under an improper legal-duty theory. We hold that this charge error was egregiously harmful because it affected the very basis of the case and deprived M.S. of a valuable right to be tried and convicted under a correct theory.” In re M.S., No. 02-18-00099-CV, 2019 Tex. App. LEXIS 6980, at *5-6 (Tex. App.—Fort Worth Aug. 8, 2019)

Just putting a footnote in a pleading about reserving a right to complain about something does not preserve that complaint:

Capacity: “Superior initially argues that Badawo lacks standing [*4] to sue as D.B.’s next friend because she has legally adopted him. See In re Bridgestone Ams. Tire Operations, LLC, 459 S.W.3d 565, 572 & n.9 (Tex. 2015) (orig. proceeding) (holding minors cannot sue by next friend if a parent has legal authority to represent them in court). Superior characterizes this as a challenge to Badawo’s standing, but it actually concerns her capacity. . . . And unlike standing, “a challenge to capacity may be waived.” In re Bridgestone, 459 S.W.3d at 573. Preservation of error requires a party to make a “timely request, objection, or motion” and either obtain a ruling or object to the trial court’s [*5] refusal to rule. Tex. R. App. P. 33.1(a). Superior included a footnote in its answer stating that it “reserves its right to contest Linda Badawo’s standing to seek legal relief on behalf of this minor.” Dr. Glomb included substantively the same statement in his answer, but neither actually argued to the district court that she lacked capacity or requested a ruling on that issue. We therefore conclude Superior has not preserved this issue for review.” Superior HealthPlan, Inc. v. Badawo, No. 03-18-00691-CV, 2019 Tex. App. LEXIS 6835, at *3-5 (Tex. App.—Austin Aug. 8, 2019)

You have to get a ruling on your complaint:

Discovery: “We also have not addressed the argument raised in appellees’ brief that we can affirm the trial court’s ruling because appellants failed to address a potential ground on which the trial court could have denied their motions to dismiss. In response to the motions, appellees argued a TCPA dismissal in this case would violate the open courts and due course guarantees of the Texas Constitution because appellants violated a rule 11 agreement by producing heavily redacted documents without asserting claims of privilege and, with respect to AVAD, failing to search for backups of deleted emails. The clerk’s record, however, does not contain a motion to compel filed by appellees. The docket sheet shows a motion to compel was filed on August 3, 2018, but also indicates a hearing on the motion was taken off the docket for lack of a proper three-day notice. Because appellees did not obtain a ruling on a motion to compel in the trial court, it waived its argument that the discovery violations were an independent ground on which the trial court could have denied appellants’ motions to dismiss. See Tex. R. App. P. 33.1(a)(1)” Pearl Energy Inv. Mgmt., LLC v. Gravitas Res. Corp., No. 05-18-01012-CV, 2019 Tex. App. LEXIS 6833, at *19 n.6 (Tex. App.—Dallas Aug. 7, 2019)

Experts: “The Davises objected to Dr. Almaguer’s affidavit in the trial court because Dr. Almaguer “is not qualified to opine on causation, his methodology is not reliable, and his opinions are conclusory and unsupported.” The Davises make the same arguments on appeal; however, the record does not contain a ruling on their objection. A “trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being understood’ from the ruling on the motion for summary judgment.” Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 165-66 (Tex. 2018) (quoting Well Sols. Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.—San Antonio 2000, no pet.)). Here, the Davises never obtained a ruling on their objection to Dr. Almaguer’s affidavit, and they never objected to the trial court’s failure to rule. See Tex. R. App. P. 33.1(a)(2); Seim, 551 S.W.3d at 165-66.” Alvarez v. Salazar-Davis, No. 13-18-00366-CV, 2019 Tex. App. LEXIS 6843, at *16 n.6 (Tex. App.—Corpus Christi Aug. 8, 2019)

Experts: “Counsel for D.L.E.B. never objected to the admissibility of Jefferies’s testimony at the hearing on the motion for a finding of aggravated circumstances or at trial. Counsel also failed to file a motion to exclude Jefferies’s testimony on any ground, including that it was speculative and unreliable, and did not request a Daubert/Robinson-type hearing. The trial court was never asked to make a ruling on whether Jefferies’s expert testimony was admissible under Rule 702 of the Texas Rules of Evidence. See Tex. R. Evid. 702. D.L.E.B.’s request for a Rule 705(b) hearing [to allow counsel to cross-examine the expert about the underlying facts and data on which the expert’s opinion is based] does not preserve a complaint about the admissibility of Jefferies’s testimony. . . . Although counsel for D.L.E.B. requested an opportunity to examine Jefferies’s “qualifications,” he did not object to the admission of Jefferies’s testimony then or at trial. In fact, counsel expressly stated: “And I’m not challenging him at this point.” We conclude that D.L.E.B. failed to preserve a complaint that Jefferies’s expert testimony [*15] was inadmissible.” D. L. E. B. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00186-CV, 2019 Tex. App. LEXIS 6834, at *13-15 (Tex. App.—Austin Aug. 8, 2019)

Several cases also dealt with situations in which parties failed to preserve error by failing to raise their complaint at all in the trial court.

All for now.  I hope this helps.

Yours, Steve Hayes

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