Error Preservation in Texas Civil Cases, January 30, 2021

January 30, 2021

Dear All:

Well, the first month of the new year certainly whizzed by.  I hope all of you remain safe and well and busy. If the formatting on this post is too wonky to read, check out the same post on my website: https://stevehayeslaw.com/error-preservation-in-texas-civil-cases-january-20-2021/

Table of Contents

Some things–most prominently, subject matter jurisdiction–may first be raised on appeal

The complaint you make on appeal must be one you raised in the trial court, and not some additional complaint

Appellate Attorney’s Fees

You have to get a ruling on your complaint

Attorney’s Fees

You have to comply with the pertinent rules

Summary Judgment Evidence

The Blurbs

Some things–most prominently, subject matter jurisdiction–may first be raised on appeal:

Subject Matter Jurisdiction: “Based on our reading of Miranda and Garcia, we conclude that the DMV presented  a proper plea to the jurisdiction that challenged the jurisdictional facts of Bustillos’s claim and, within the jurisdictional pleading, the DMV properly addressed the burden-shifting analysis required of the court’s review. . . . With evidence attached, the DMV’s plea to the jurisdiction challenged the court’s subject matter jurisdiction over the retaliation suit based on insufficient evidence to establish a waiver of the agency’s immunity from suit. As a preliminary matter, we decline to find that the DMV failed to adequately apprise the court below of its jurisdictional argument such that it wholly waived its complaint for review.  See Tex. R. App. P. 33.1(a)(1)(A) (requiring only that a party’s request, objection, or motion state the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint). And even still, as further pointed out by the DMV in its reply, it is well settled that subject matter jurisdiction can be raised for the first time on appeal. . . . Consequently, an appellate court must consider challenges to the trial court’s subject matter jurisdiction on interlocutory appeal, regardless of whether such challenges were presented to or determined by the trial court.” Tex. DMV v. Bustillos, No. 08-18-00165-CV, 2021 Tex. App. LEXIS 514, at *16-18 (Tex. App.—El Paso Jan. 25, 2021)

The complaint you make on appeal must be one you raised in the trial court, and not some additional complaint:

Appellate Attorney’s Fees: “Permit Partners raises two additional complaints about Sauer’s [*17] evidence on attorney’s fees: . . . (2) [the attorney’s fee affidavit] outlined time billed for Sauer’s “unsuccessful” summary-judgment motion and for defending against Permit Partners’s claims, which are not “proper” bases for attorney’s-fee awards. We overrule Permit Partners’s complaint that the evidence was insufficient to support an award of appellate attorney’s fees. In his affidavit, Icenogle averred as to the fees he expected Sauer to incur as “reasonable and necessary” in case of an appeal by Permit Partners. He also averred that he had been a licensed Texas attorney since 1983, with the majority of his practice concentrated in Travis County, and that he was “fully cognizant and aware of the type and nature of attorneys’ fees reasonably charged for legal services” in Travis County. Permit Partners did not object to this affidavit or introduce any controverting evidence, and Permit Partners has not cited any relevant authority requiring more specificity about an attorney’s appellate background when opining about appellate attorney’s fees. Accordingly, the affidavit of Sauer’s attorney constituted legally and factually sufficient evidence to support the trial court’s award of appellate attorney’s fees in the event of unsuccessful appeals by Permit Partners. . . . We also overrule Permit Partners’s contentions about the “improper” bases for Sauer’s attorney’s fees because it did not preserve error as to the complaints. See Tex. R. App. P. 33.1. However, even if its general contention in its motion for new trial that Sauer “failed to segregate her fees between recoverable and unrecoverable claims” could be construed to encompass these complaints, Permit Partners does not cite any applicable authority supporting a reversal of the award on those bases.” Permit v. Sauer, No. 03-19-00059-CV, 2021 Tex. App. LEXIS 700, at *16-18 (Tex. App.—Austin Jan. 29, 2021)

You have to get a ruling on your complaint:

Attorney’s Fees: “ Tenant and Guarantors also complain that the trial court improperly considered post-trial “affidavit testimony or additional documentation” in making its attorney’s fees award to Landlord. Because they did not obtain a ruling on this objection in the trial court, they have waived it on appeal. See TEX. R. APP. P. 33.1.” Lakepointe Pharmacy #2, LLC v. Forney Deerval, LLC, No. 05-19-01224-CV, 2021 Tex. App. LEXIS 572, at *15 n.4 (Tex. App.—Dallas Jan. 26, 2021)

You have to comply with the pertinent rules:

Summary Judgment Evidence: “Van Deelen [*20] further argues he was prejudiced because he was not permitted to discuss his evidence. Van Deelen does not point to any place in record where the trial court excluded any evidence, and our independent review has not revealed any such trial-court action. For Van Deelen to prevail on this issue on appeal, the record must show that he offered evidence and that the trial court actually excluded the evidence. Tex. R. App. P. 33.1(a); . . . . The record shows neither. Van Deelen offered documentary evidence in response to the motions for summary judgment. Van Deelen’s evidence was not excluded by the trial court. Van Deelen does not point to any summary-judgment evidence that was excluded. Given Van Deelen’s failure to preserve error on his exclusion-of-evidence complaint, he cannot prevail on appeal.” Van Deelen v. Tex. Workforce Comm’n, No. 14-18-00489-CV, 2021 Tex. App. LEXIS 524, at *19-20 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021)

All for now.   Y’all stay safe and well.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, January 23, 2021

January 23, 2021

Dear All:

If you’re an appellate lawyer, you dream about a case like the first one discussed below–a court of appeals analyzing whether the complaint was “made with sufficient specificity to make the trial court aware” (an aspect of preservation courts rarely address), the complaint focusing on appellate attorney’s fees–and someone testifying that fees on appeal will exceed $400,000 (as opposed to your trial counsel testifying that the appeal will cost less than one tenth what the trial cost).

Table of Contents

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

Appellate Attorney’s Fees

One may first complain on appeal about defective service

You have to comply with the pertinent rules

Summary Judgment

Your complaint must be timely

Evidence

The Blurbs

If you’re an appellate lawyer, you dream about the following type of case–a court of appeals analyzing whether the complaint was “made with sufficient specificity to make the trial court aware” (an aspect of preservation courts rarely address), the complaint focusing on appellate attorney’s fees–and someone testifying that fees on appeal will exceed $400,000 (as opposed to your trial counsel testifying that the appeal will cost less than one tenth what the trial cost):

Appellate Attorney’s Fees: “At the December 10 hearing, Mizell testified regarding the Hospital’s request for its future appellate attorney’s fees. In its final judgment, the trial court awarded the Hospital $489,800 in future appellate fees “conditioned upon the Hospital [*33] prevailing on any appeal of this case by Nath.” Nath contends on appeal that the Hospital’s failure “to ever plead for future appellate attorney’s fees” is fatal to its recovery. . . . During Mizell’s testimony on the Hospital’s future appellate attorney’s fees, Nath did not object to this evidence as being outside the Hospital’s pleadings. . . . With respect to this line of testimony, the only objection Nath raised addressed the foundation for Mizell’s opinion:

Objection, Your Honor. Lack of foundation on the part of this witness with regard to what appellate fees may or may not be with regard to any matter or this mater. There’s not been a proper foundation with regard to this witness.

This objection was not sufficient to make the trial court aware of the issue Nath now raises on appeal, i.e., whether appellate attorney’s fees were outside the scope of the Hospital’s pleadings. See Tex. R. App. P. 33.1(a). We overrule Nath’s argument that the Hospital failed to plead for an award of future appellate attorney’s fees.” Nath v. Tex. Children’s Hosp., Nos. 14-19-00967-CV, 14-20-00231-CV, 2021 Tex. App. LEXIS 459, at *32-34 (Tex. App.—Houston [14th Dist.] Jan. 21, 2021)

One may first complain on appeal about defective service:

Service: “In his first issue, Singh contends the trial court’s final decree is void because the trial court never acquired personal jurisdiction over him. According to Singh, the substituted service was defective because Gill’s motion failed to comply with rule of civil procedure 106(b). Specifically, Singh contends the affidavits attached to the motion failed to set forth facts demonstrating that Gill unsuccessfully attempted to serve him by personal service or certified mail. He also asserts that substituted [*6] service was attempted by an interested party, Gill’s attorney, in violation of rule 103. Gill contends that Singh failed to preserve error by raising the issue in his motion for new trial. We disagree. A party may complain of defective service of citation for the first time on appeal” Singh v. Gill, No. 05-19-01146-CV, 2021 Tex. App. LEXIS 400, at *5-6 (Tex. App.—Dallas Jan. 20, 2021)

You have to comply with the pertinent rules:

Summary Judgment: “First, Good Guys argues the trial court erred when it ruled on AAMCO and Cox’s summary judgment objections because Good Guys’ written objections were filed the night before the hearing when discovery was still ongoing in the case.

We hold that Good Guys waived [*6] this complaint by not timely asserting it in the trial court. See Tex. R. App. P. 33.1 (requiring a complaint to be made to trial court by timely request to preserve the complaint for appellate review). “When a summary judgment movant objects to summary judgment evidence proffered by the nonmovant, the burden lies upon the nonmovant to request relief under rule 166a(f), including a continuance or the opportunity to cure any formal defects in the nonmovant’s summary judgment evidence.” Coleman v. Woolf, 129 S.W.3d 744, 750 (Tex. App.—Fort Worth 2004, no pet.). “Generally, a motion for continuance is the proper procedure to obtain this ‘opportunity.'” Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied) (citing Webster v. Allstate Ins. Co., 833 S.W.2d 747, 750 (Tex. App.—Houston [1st Dist.] 1992, no writ)). Here, Good Guys failed to request a continuance or opportunity to cure before the trial court’s judgment. Instead, it first raised the issue in its appellate brief. Therefore, Good Guys waived this issue for appeal. See Tex. R. App. P. 33.1;” Villejo Enters., LLC v. C.R. Cox, Inc., No. 04-19-00882-CV, 2021 Tex. App. LEXIS 371, at *5-6 (Tex. App.—San Antonio Jan. 20, 2021)

Your complaint must be timely:

Evidence: “Dallas County Sheriff’s Deputy James Rodriguez testified that, after observing Harding’s reaction during Classic’s attempted inspection of the Unit, he recommended that the Association hire security to insure the safety of the construction crew making repairs to the upstairs unit. On appeal, Simpson and Harding complain that none of Deputy Rodriguez’s testimony was relevant with respect to the issues that were tried.

To preserve error for appellate review, the complaining party must timely and specifically object to the evidence and obtain a ruling. TEX. R. APP. P. 33.1(a). Error is waived if the complaining party allows the evidence to be introduced without objection. McShane, 239 S.W.3d at 235. Here, Simpson and Harding did not object during Rodriguez’s testimony. Instead, at the conclusion of his cross-examination of Rodriguez, Simpson and Harding’s counsel asked the court to strike Rodriguez’s testimony because it had nothing to do with [*24] the case. The trial court did not err in allowing Rodriguez to testify—Simpson and Harding did not timely object to his testimony. Id. Further, a review of the entire record does not demonstrate that the judgment turns on the testimony of Rodriguez.” Simpson v. Oaks on Monfort Condo. Ass’n, No. 05-19-00123-CV, 2021 Tex. App. LEXIS 359, at *23-24 (Tex. App.—Dallas Jan. 19, 2021)

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

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-2789; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, January 16, 2021

January 16, 2021

Dear All:

This was a little bit of a sleepy week, from an error preservation standpoint. I hope everyone remains safe and healthy, and enjoys what promises to be a beautiful (if maybe a little chilly) weekend.

Table of Contents

Some issue can first be raised on appeal–that a traditional summary judgment movant did not establish its right to a summary judgment

Summary Judgment

You have to comply with the pertinent rules

Findings and Conclusions

The record has to show that you made your complaint in the trial court

Dismissal Deadline

The Blurbs

Some issue can first be raised on appeal–e.g., that a traditional summary judgment movant did not establish its right to a summary judgment:

Summary Judgment: “[W]e treat appellants’ section 95.002 complaint as fairly including a legal sufficiency challenge as to both prongs [i.e., ownership of the property, and negligence resulting in personal injury or death to a contractor, arising from a condition of use of an improvement to the property where the contractor does work on the improvement].n. 5 n.5 To the extent appellants’ trial court arguments did not specifically address subsection 95.002(2), ‘a [traditional] summary-judgment nonmovant may raise, for the first time on appeal, the legal sufficiency of evidence supporting grounds for relief presented by the movant.’” Paniagua v. Weekley Homes, LLC, No. 05-19-00439-CV, 2021 Tex. App. LEXIS 265, at *21 (Tex. App.—Dallas Jan. 13, 2021)

You have to comply with the pertinent rules:

Findings and Conclusions: “If findings of fact are not properly requested—including when a past-due notice is not filed within the thirty-day deadline imposed by rule 297—then an appellant waives a complaint that the trial court failed to file findings of fact and conclusions of law. . . . Accordingly, the Bank waived its third issue that the trial court failed to file [*6] findings of fact and conclusions of law, and we overrule it.” Bank of Am., N.A. v. Groff, No. 14-19-00726-CV, 2021 Tex. App. LEXIS 186, at *5-6 (Tex. App.—Houston [14th Dist.] Jan. 12, 2021)

The record has to show that you made your complaint in the trial court:

Dismissal Deadline: “In her second issue, Mom argues that the trial court did not explicitly state in its written order that it found extraordinary circumstances to extend the original mandatory dismissal deadline of September 2, 2019. She correctly states that Family Code section 263.401 requires a finding of extraordinary circumstances to extend the mandatory dismissal deadline. See Tex. Fam. Code Ann. § 263.401; . . . . But as the State argues, there is no record of discussion with the court about the extension nor record of any objection to the extension. . . . Without record of any objection to this continuance and extension, Mom waived her argument on appeal. See Tex. R. App. P. 33.1(a) (defining waiver);” In the Interest of X.J.R., No. 04-20-00368-CV, 2021 Tex. App. LEXIS 247, at *5 (Tex. App.—San Antonio Jan. 13, 2021)

That’s all for now.  Y’all have a great weekend, and stay safe and well.

Yours,

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

Error Preservation in Texas Civil Cases, January 11, 2021

January 11, 2021

Dear All:

Sorry for the delay. This pesky day job got in the way.   Thankfully, the error preservation case load from the courts of appeals was not as heavy in the first week of the New Year as it was in the last week of last year.

Table of Contents

Only on rare occasion does a court discuss whether a complaint was sufficiently specific, but here is one which did, at relative length

Jury Charge

Your complaint on appeal must comport with the complaint you made in the trial court

Attorney’s Fees

Discovery

You have to make your complaint in a timely fashion–but a time limit does not start running until your opponent complies with the rule which triggers the running of the time limit

Expert Report

You have to comply with the pertinent rules

Evidence

The Blurbs

Only on rare occasion does a court discuss whether a complaint was sufficiently specific, but here is one which did, at relative length:

Jury Charge: “ In voicing its objections to these definitions, Lubbock County cited the plaintiff’s proposed definition of imbecile in the case of Chamul. See Chamul v. Amerisure Mut. Ins. Co., 486 S.W.3d 116, 120 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The issue addressed in the Chamul case regarded whether the definition of imbecility that had been used by the Division of Workers’ Compensation in Chamul‘s case and generally was an appropriate definition. Id. at 119. That definition was taken from a 1991 dictionary which provides that imbecility “contemplates that the affected individual will not only require supervision in the performance of routine tasks, but will have a mental age of three to seven years.” Id. (quoting Webster’S Ninth New Collegiate Dictionary (1991)). The Chamul court rejected this definition because its overly narrow, age-specific definition would lead to absurd results wherein a claimant that suffered a traumatic brain injury that resulted in the claimant’s mental age being less than three years would be excluded from receiving lifetime income benefits. Id. at 127. In the present case, the definition of imbecility that was submitted to the jury did not include any sort of age-based limitation. [*8] Consequently, because Lubbock County’s reference to Chamul did not specifically identify an applicable ground for its objection to the definition of imbecile used by the trial court, we cannot conclude that this reference preserved any error regarding the definition. See Tex. R. Civ. P. 274.

In addition, Lubbock County cites Chamul for the definition of imbecility that was proposed by the claimant. A review of the opinion reveals that this proposed definition was not analyzed by the Chamul court. Consequently, we cannot understand how Lubbock County’s reference to Chamul put the trial court on notice as to the grounds of its objection. See id.

Finally, Lubbock County contends that, “[a] review of both counsels’ objections and the mutual one-name references of Chamal [sic] and Comacho [sic] indicates the off-record conference with the trial judge involved a detailed discussion on the case law and arguments regarding the proposed definitions.” As a reviewing court, we are constrained to review objections that may be found within the record. See Tex. R. App. P. 33.1. Consequently, we cannot presume that a discussion that was not made part of the record advised the trial court of the grounds for an objection to the court’s [*9] charge.

Because we do not find any specific identification of the grounds for Lubbock County’s objection to the trial court’s definitions of incurable imbecility and insanity, nothing is preserved for our review. We overrule Lubbock County’s second issue.” Lubbock Cty. v. Reyna, No. 07-19-00330-CV, 2021 Tex. App. LEXIS 33, at *7-9 (Tex. App.—Amarillo Jan. 5, 2021)

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

Attorney’s Fees: “In another argument under its fourth issue, THF contends that Gideon was not a “prevailing party” and therefore not entitled to recover attorney’s fees. See Tex. Labor Code Ann. § 21.259 (West 2015).  After trial, counsel for Gideon filed an application for attorney’s fees, in which he requested fees based on a reasonable hourly rate and the time he devoted to the case. THF filed an opposition to Gideon’s application, arguing that the fees sought by Gideon’s counsel “are excessive and should be reduced.” THF’s pleading raised objections to the amount of attorney’s fees sought, but not to Gideon’s entitlement to attorney’s fees. We see no indication in the record, and THF directs us to none, showing that THF raised its “prevailing party” argument before the trial court. THF has failed to preserve this issue for our review.” THF Hous. Mgmt. Corp. v. Gideon, No. 07-19-00343-CV, 2021 Tex. App. LEXIS 57, at *14 (Tex. App.—Amarillo Jan. 6, 2021)

Discovery: “To the extent the deposition topics at issue permit inquiry into relevant matters, Allstate argues alternatively that compelling the deposition is clear error because it is unduly burdensome, and Arredondo may obtain that evidence elsewhere. See Tex. R. Civ. P. 192.4(a). Courts have agreed that a corporate representative deposition is unreasonable and unduly burdensome in the UIM context on the content of a claimant’s records because the claimant has independent and superior access to his own records. . . . . Indeed, this court relied on [*18] similar reasoning in our 2018 Liberty County Mutual Insurance Company case. . . .In that case, however, the insurer asserted the argument in the trial court and developed a record to support it. Id. Here, in contrast, Allstate did not argue in the trial court that the deposition should be quashed or limited based on similar grounds and did not develop a record demonstrating that the relevant information sought by the deposition is already known by Arredondo, has already been obtained, or is obtainable through more convenient, less burdensome, or less expensive means. . . . . We cannot grant mandamus relief based on an argument that Allstate did not first present in the trial court.” In re Allstate Fire & Cas. Ins. Co., No. 14-20-00430-CV, 2021 Tex. App. LEXIS 71, at *17-18 (Tex. App.—Houston [14th Dist.] Jan. 7, 2021)

You have to make your complaint in a timely fashion–but a time limit does not start running until your opponent complies with the rule which triggers the running of the time limit:

Expert Report: “Appellants first argue the trial court erred in granting appellees’ motion to dismiss because they waived their right to object to Dr. Esterlein’s expert report by failing to file their objections within the twenty-one-day period permitted by section 74.351(a) of the Texas Civil Practice and Remedies Code. Appellees counter that appellants’ affidavit failed to trigger the twenty-one-day period because it was not accompanied by a curriculum vitae. We agree with appellees. . . . Here, it is undisputed that appellants failed to serve a curriculum vitae for Dr. Esterlein. On March 1, 2019, Appellants filed their original petition with Dr. Esterlein’s expert report attached. Appellees answered on April 2, 2019, the other defendants answered on April 4, 2019, thus Dr. Esterlein’s curriculum vitae was due to be [*7] served 120 days later. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). However, appellants failed to supplement their report with a curriculum vitae until after appellees filed their motion to dismiss. Therefore, the twenty-one day deadline outlined in the Texas Civil Practice and Remedies Code was never triggered, and appellees did not waive their objections to Dr. Esterlein’s expert report. See id.; Pena, 220 S.W.3d at 54.” Jacquez v. VHS San Antonio Partners, LLC, No. 04-20-00097-CV, 2021 Tex. App. LEXIS 37, at *4-7 (Tex. App.—San Antonio Jan. 6, 2021)

You have to comply with the pertinent rules:

Evidence: “Moreover, to preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 334 (Tex. App.—Dallas 2008, no pet.). While the [*4] reviewing court may be able to discern from the record the nature of the evidence and the propriety of the trial court’s ruling, without an offer of proof, we can never determine whether exclusion of the evidence was harmful. Id. at 335. Thus, when evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence in the record in order to complain of the exclusion on appeal. See Tex. R. Evid. 103(a); Bobbora, 255 S.W.3d at 335. When no offer of proof is made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exceptions to preserve the evidence for the appellate record. See TEX. R. APP. P. 33.2; Bobbora, 255 S.W.3d at 335. Failure to demonstrate the substance of the excluded evidence results in waiver. See TEX. R. APP. P. 33.1(a)(1)(B); Bobbora, 255 S.W.3d at 335. Because Self did not make an offer of proof or file a bill of exceptions to preserve the evidence for the appellate record, he has waived his complaint that the trial court erred in refusing to admit the video. We overrule Self’s second issue.” Self v. W. Cedar Creek Mun. Util. Dist., No. 12-20-00082-CV, 2021 Tex. App. LEXIS 66, at *3-4 (Tex. App.—Tyler Jan. 6, 2021)

All for now.  Y’all stay safe and well and have a great week.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, January 3, 2021

January 3, 2021

Dear All:

Happy New Year! 2020 went out with a bang, error preservation-wise. Not because of any Supreme Court rulings, but because of the number of rulings, and topics addressed, by the courts of appeals. As the Table of Contents reveals, the courts were busy, busy this week–perhaps because some justices were trying to finish up things before leaving office. One thing Covid-19 has not slowed the last few months–the number of error preservation decisions in Texas Civil Cases. This year’s count, from September 1 until the end of 2020 is at least 175–virtually identical to the same period in 2018 (174) and 2016 (177), and exceeding 2019 (112) and 2018 (158).

Table of Contents

In USAA v. Menchaca, a plurality of the Supreme Court said it could review conflicting jury answers on appeal, without regard to whether a party made a pre-juror dismissal objection to the same. The El Paso Court now holds–in a reasoned opinion in a denial of a mandamus, and over a dissent–that a motion to correct the verdict timely raises such an objection

Conflicting Jury Answers

Here is an example of the need to get the trial court to set forth on the record its understanding of your opponent’s complaint–and to make sure that, if the trial court does the same on your complaint, that the record shows the trial court understands the complaint you made:

Jury Argument

Your complaint on appeal must comport with the complaint you made in the trial court

Expert

Remember: you have to bring your complaint to the trial court’s attention. Just including a complaint in a pleading does not necessarily do so, nor does the fact that your opponent put the complaint in its pleading

Judge (Assignment)

You have to make your complaint in a timely fashion–which sometimes does not require raising the complaint at the first available opportunity

Attorney
Attorney’s Fees (Segregation)
Capacity
Constitutionality
Evidence
Legal Sufficiency (Jury Trial)
Work-Related Injury

You have to comply with the pertinent rules

Jury Charge

You have to obtain a ruling on your complaint, or object to the trial court’s refusal to rule

Discovery
Sanctions

The Blurbs

In USAA v. Menchaca, a plurality of the Supreme Court said it could review conflicting jury answers on appeal, without regard to whether a party made a pre-juror dismissal objection to the same. The El Paso Court now holds–in a reasoned opinion in a denial of a mandamus, and over a dissent–that a motion to correct the verdict timely raises such an objection:

Conflicting Jury Answers: “The question here, then, is whether Villegas’s post-verdict motion could serve to preserve error sufficient to allow this Court to perform a merits review of the trial court’s [*20] grant of a new trial based on purportedly conflicting answers in the jury verdict.

Rule 295 of the Texas Rules of Civil Procedure provides that if a jury’s answers to questions in a purported verdict are in conflict, the trial court must instruct the jury of the nature of the problem, give the jury additional instructions as necessary, and allow the jury to deliberate further. Tex. R. Civ. P. 295. In light of this rule, we have previously held that if a party wants to preserve error with regard to a defective jury verdict, “[t]he trial court must be made aware of the conflict before the jury is discharged because, once the jury is discharged, a conflict in the jury’s answers cannot be reformed.” Rhey v. Redic, 408 S.W.3d 440, 464-65 (Tex.App.—El Paso 2013, no pet.) (internal citations and quotation marks omitted). Here, it is undisputed that after the jury rendered its verdict, but before it was discharged, the Villegas plaintiffs did not bring the issue to the trial court’s attention.

However, in Rhey, we were not asked to address nor did we face the issue of whether a post-discharge motion for new trial could also serve to preserve error. Thus, while Rhey confirmed that a motion to correct the verdict is one way of preserving error in a conflicting jury verdict, it did not preclude or otherwise address the possibility [*21] that there are other ways to preserve such error. To date, the Supreme Court of Texas has not definitively answered that question—indeed, the last time the issue arose, the Court splintered into three plurality positions, none of which garnered a majority. See USAA Texas Lloyds Company v. Menchaca, 545 S.W.3d 479, 517-19 (Tex. 2018). Absent guidance from our highest court, we find this to be an open question.

We turn, then, to Rule 33.1, the general standard for preservation of error set by the Texas Rules of Appellate Procedure. See Tex. R. App. P. 33.1(a). To demonstrate preservation of a complaint for appellate review, Rule 33.1 requires the record to show:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated 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; and

(B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected [*22] to the refusal.

Tex. R. App. P. 33.1(a).

Rule 33.1 governs the preservation of error unless another rule applies. Although Rule 295 of the Texas Rules of Civil Procedure governs the procedure for correcting a verdict, the rule itself does not address the issue of error preservation. As such, we may rely on Rule 33.1 of the Texas Rules of Appellate Procedure to determine if error was preserved. We hold that, in addition to a motion to correct the verdict under Tex. R. Civ. P. 295, a motion for new trial can also preserve a defect in a jury charge under Tex. R. App. P. 33.1 because the post-trial motion brings the error to the trial court’s attention close enough in time to provide it an opportunity to correct the error by ordering a new trial before appellate proceedings begin. We agree with the four-justice plurality in Menchaca that “[g]enerally, a party should object to conflicting answers before the trial court dismisses the jury. The absence of such an objection, however, should not prohibit us [as an appellate court] from reaching the issue of irreconcilable conflicts in jury findings.” Menchaca, 545 S.W.3d at 526-28 (Green, J., plurality op.).

In the absence of a motion to correct the verdict or a post-verdict motion such as a motion for mistrial or new trial—which cites a purportedly conflicting verdict as a basis for seeking relief—Rhey would apply, and error would not be preserved. But given that [*23] Villegas filed post-verdict motions that identified the conflicting jury answers as a ground for relief, we conclude that this basis for granting a new trial was properly raised with the trial court and not waived.” In re Auto., No. 08-18-00149-CV, 2020 Tex. App. LEXIS 10387, at *19-23 (Tex. App.—El Paso Dec. 30, 2020)

Here is an example of the need to get the trial court to set forth on the record its understanding of your opponent’s complaint–and to make sure that, if the trial court does the same on your complaint, that the record shows the trial court understands the complaint you made:

Jury Argument: “Chambers County objected [to its opponent’s jury argument about the contract said about termination] that the contract “does not say that.” The trial court overruled the objection, admonishing the jury that “[i]t’s argument. You have the evidence before you.” Chambers County did not offer any further explanation of its objection, though it complains now on appeal that the rebuttal argument was improper because the trial court had “already found in a prior summary judgment order that Pelco had no such right” to terminate and Pelco did not “plead that it had a right to terminate the [c]ontract based on” the provisions that were the subject of the rebuttal argument. The Rules of Appellate Procedure require that, to preserve an allegation of error for appellate review, the record must show a timely objection stating the grounds for the requested ruling with enough specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See [*46] Tex. R. App. P. 33.1(a)(1)(A). From the language used in the objection and the response of the trial court, it is apparent that the trial court did not perceive the objection to be directed at the alleged violation of a prior order or pleading rules. Rather, the record reflects that the trial court perceived the objection to be a disagreement with Pelco’s interpretation of the evidence. Nor can we say that the context of the objection makes the specific grounds now complained of clear. We therefore conclude that the error alleged was not preserved at trial pursuant to the Texas Rules of Appellate Procedure.” Chambers Cty. v. Pelco Constr. Co., No. 01-18-00832-CV, 2020 Tex. App. LEXIS 10454, at *45-46 (Tex. App.—Houston [1st Dist.] Dec. 31, 2020)

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

Expert: “To preserve error for appellate review, a complaining party must make a timely [*5] and specific objection. See Tex. R. App. P. 33.1(a)(1). In the instant case, the record does not reflect that B.A.L. objected to Dr. Lackey’s testimony or his report on the basis that he was not a disinterested expert. Rather, the only objection B.A.L. made in the trial court as to Dr. Lackey involved whether Dr. Lackey had been properly proven to be an expert witness such that he would be allowed to remain in the courtroom after “the Rule” had been invoked. See Tex. R. Evid. 614. Based on the foregoing, we cannot say that B.A.L.’s objection to Dr. Lackey in the trial court comports with the complaint raised on appeal.” In re B.A.L., No. 10-20-00064-CV, 2020 Tex. App. LEXIS 10405, at *4-5 (Tex. App.—Waco Dec. 30, 2020)

Remember: you have to bring your complaint to the trial court’s attention. Just including a complaint in a pleading does not necessarily do so, nor does the fact that your opponent put the complaint in its pleading:

Judge (Assignment): “Here, the Department included in its Original Petition an objection to the assignment of this matter to an associate judge. According to A.G.’s appellate brief, she relied on the Department’s objection and asserts this matter was required to be heard by the referring court. Because it was not, A.G. argues she is entitled to a new trial on the merits before the referring court. However, we find the record indicates this issue is not properly before us.

Judicial economy requires that a trial court have the opportunity to correct an error before an appeal proceeds. . . . Therefore, as a prerequisite to the presentment of a complaint for appellate review, the record must reflect that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. Here, the record shows that neither party urged, [*11] mentioned, or otherwise brought to the attention of the trial court the objection contained in the pleadings at any time prior to or at the time of the final hearing. Further, A.G. did not file a motion for new trial raising the issue of the failure to refer the matter back to the referring court. As such, A.G. has failed to preserve this issue for our review. . . . In re B.W., 99 S.W.3d 757, 760 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Patir v. MFC Int’l. Corp., 60 S.W.3d 355, 357 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (requiring objection or otherwise bringing to attention of the trial court an error that could have been cured if the trial court had been given the opportunity to do so). We thus resolve this issue against A.G.” E.G., No. 07-20-00189-CV, 2020 Tex. App. LEXIS 10478, at *11 (Tex. App.—Amarillo Dec. 31, 2020)

You have to make your complaint in a timely fashion–which sometimes does not require raising the complaint at the first available opportunity:

Attorney: “In issue seven, Brown argues that the trial court erred by denying her motion to disqualify Hagan as Moore’s attorney. Specifically, Brown asserts that Moore and Johnson are opposing parties because both sought to be McKinzie’s guardian, and it is therefore impermissible under the rules of ethics for Hagan to represent both Moore and Johnson. Brown does not cite any legal authorities supporting her argument that two persons who apply to be named permanent guardian constitute opposing parties. See Tex. R. App. P. 38.1(i) Furthermore, the record reflects that Brown did not move to disqualify Hagan until November 14, 2018, which was six months after the trial. See Tex. R. App. P. 33.1(a). For all these reasons, we overrule issue seven. Having overruled each of Brown’s issues, we affirm the trial court’s judgment appointing Moore as McKinzie’s permanent guardian.” In the Guardianship of William Vernon McKinzie, No. 09-19-00124-CV, 2020 Tex. App. LEXIS 10373, at *34 (Tex. App.—Beaumont Dec. 30, 2020)

Attorney’s Fees (Segregation): “ A-1 contends Supermart waived any complaint about segregation. Although it did not object to admission of A-1’s attorney’s fees evidence when it was introduced, during the charge conference Acacia and Supermart objected that A-1 had not segregated its fees as to the claims between them. This objection was timely and sufficiently specific to preserve Supermart’s objection.” Young Yoo v. A 1 Mktg., No. 05-19-00031-CV, 2020 Tex. App. LEXIS 10318, at *15 (Tex. App.—Dallas Dec. 29, 2020)

Capacity: “In issue one, Psalms argues that the evidence is legally insufficient to support the trial court’s finding that Psalms breached a contract with Hogan-Rogers because she was not a party to the contract, which was signed by her husband, who was not a [*10] named party in the lawsuit. Hogan-Rogers argues that because Psalms failed to raise this challenge before trial, it has waived this issue for appellate review.

“[A] challenge to a party’s privity of contract is a challenge to capacity, not standing, and requires compliance with [R]ule 93 of the Texas Rules of Civil Procedure.” John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 651 (Tex. App.-Dallas 2013, pet. denied); see also Tex. R. Civ. P. 93(1) (providing that a pleading challenging a plaintiff’s legal capacity to sue shall be verified by affidavit). Based on our review of the record, Psalms did not challenge Hogan-Rogers’s capacity in its pleadings. Psalms first mentioned this argument in its proposed amended findings of fact and conclusions of law, which Psalms filed seven days after trial. We conclude that because Psalms failed to challenge Hogan-Rogers’s capacity to sue in a verified pleading prior to trial, Psalms has waived this issue for our review.” Psalms Funeral Home Llc v. Hogan-Rogers, No. 09-19-00269-CV, 2020 Tex. App. LEXIS 10370, at *9 (Tex. App.—Beaumont Dec. 30, 2020)

Constitutionality: “In the trial court, after the court granted the Defendants’ motions to dismiss, but before the court awarded attorneys’ fees and assessed sanctions, Gensetix filed a response to BCM’s application for attorneys’ fees and sanctions. In that response Gensetix argued [*35] that the TCPA’s mandatory fee provision was unconstitutional in violation of the open-courts provision of the Texas Constitution and the First and Fourteenth Amendments to the United States Constitution. n. 3 n. 3–The Decker Parties initially argue that Gensetix failed to preserve this issue for review in the trial court. Because Gensetix raised the constitutionality issue in the trial court and obtained an implicit ruling from the trial court when the court signed the fee orders, we hold that error was preserved. See Tex. R. App. P. 33.1.” Gensetix, Inc. v. Baylor Coll. of Med., No. 14-19-00488-CV, 2020 Tex. App. LEXIS 10431, at *34-35 (Tex. App.—Houston [14th Dist.] Dec. 31, 2020)

Evidence: “El-Rayes complains that Lee disclosed the video more than a year after the discovery period ended in the case, and therefore, the video should have been automatically excluded under rule 193.6(a). See Tex. R. Civ. P. 193.6(a). However, El-Rayes does not direct us to any [*9] trial objection that the video had not been timely disclosed. To preserve error on appeal, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling that appears in the record. See Tex. R. App. P. 33.1(a). When an appellant raises an objection to evidence for the first time in a motion for new trial, the appellant must show a legitimate reason for not raising the objection at trial. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (“If a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived.”); Jones v. State, 111 S.W.3d 600, 604 (Tex. App.—Dallas 2003, pet. ref’d) (“Unless the defendant can show a legitimate reason for not timely objecting, error is waived . . . “); see generally Dallas Ry. & Terminal Co. v. Little, 109 S.W.2d 289, 295 (Tex. Civ. App.—Dallas 1937, writ dism’d) (discussing that an appellant “should not be heard to complain for the first time in its motion for new trial” if the appellant failed to object during trial). El-Rayes’s motion for new trial shows no reason to justify the delay in raising his objection that the video was untimely disclosed. We conclude that El-Rayes’s objection is untimely and that he has waived error.” Mohamed Ahmed El-Rayes v. Jong Lee, No. 05-19-00881-CV, 2020 Tex. App. LEXIS 10395, at *8-9 (Tex. App.—Dallas Dec. 30, 2020)

Legal Sufficiency (Jury Trial): “A legal sufficiency issue is preserved by “one of the following: (a) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission 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.” T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). Riley did not raise the issue of judgment for the amount of excess rush housekeeping fees in a motion for instructed verdict, a motion for judgment notwithstanding the verdict, an objection to the jury charge, a motion to disregard the jury’s verdict or a motion for new trial. He did, however, raise the issue in a post-judgment motion to modify the judgment, in which he argued that he was entitled to judgment in the amount of $320 as a matter of law because the jury found the surcharge on rush housekeeping fees arbitrary, capricious, or discriminatory and his testimony about the amount of the fees was not controverted. This challenge was, in substance, a motion for directed verdict or for judgment notwithstanding the verdict. We conclude [*42] that Riley preserved this issue for appellate review.” Riley v. Caridas, No. 01-19-00114-CV, 2020 Tex. App. LEXIS 10277, at *41-42 (Tex. App.—Houston [1st Dist.] Dec. 29, 2020)

Work-Related Injury: “Fluor counters that Salas “failed to preserve error on his argument that his report of his work-related injury constituted protected activity under § 451.001(3) because he did not timely assert this argument in his Response to F[luor]’s Motion for Summary Judgment.” Fluor claims that “Salas first raised this argument orally at the hearing on summary judgment and in a ‘Post-Hearing Brief,’ filed shortly after the hearing.” Salas responds that (1) his “opposition to summary judgment directly argued that [he] engaged in protected [conduct] under § 451.001, including specifically citing and quoting § 451.001(3)”, (2) he “also provided direct factual support for a protected act under § 451.001(3)”, and (3) “even if Salas had not sufficiently pleaded a protected act under 451.001(3), by arguing the issue at summary judgment hearing without objection, Fluor agreed to try this issue by express or implied consent of the parties under TRCP Rule 67.”

We reject Fluor’s waiver argument. First, [*15] we note that Salas’s live pleading does not limit his retaliatory discharge claim to section 451.001(1). In his first amended petition, Salas pleaded that Fluor “may not” terminate him “because [he] received an injury on the job and pursued protected activity under Labor Code Section 451.001.”

Second, Salas did not limit his summary judgment response to section 451.001(1); he cited to and discussed section 451.001(3) and also provided evidence to support an argument that he engaged in protected conduct under section 451.001(3). Under a liberal reading of Salas’s response along with his summary judgment evidence, Salas presented the argument that his report of his on-the-job injury constituted protected activity under section 451.001(3). See Richmond v. L.D. Brinkman & Co. (Tex.) Inc., 36 S.W.3d 903, 905 n.2 (Tex. App.—Dallas 2001, pet. denied) (liberally construing response to summary motion to include preemption argument although nonmovants did not specifically state the argument).

Third, Fluor acknowledges in its appellate brief (as well as in its response to Salas’s post-summary judgment hearing brief) that Salas “raised this argument orally at the hearing on summary judgment.” Although we do not have a transcript of the oral summary judgment hearing, Fluor admits that the issue of whether Salas’s report of his on-the-job injury constitutes protected conduct under section 451.001(3) was argued at the hearing. Additionally, [*16] the trial court’s summary judgment order states that the court considered the summary judgment motion, the summary judgment response, arguments of counsel, and the pleadings on file in granting summary judgment in favor of Fluor.

We conclude that Salas did not “fail[] to preserve error on his argument that his report of his work-related injury constituted protected activity under § 451.001(3)”.” Salas v. Fluor Daniel Servs. Corp., No. 14-18-01103-CV, 2020 Tex. App. LEXIS 10262, at *14-16 (Tex. App.—Houston [14th Dist.] Dec. 29, 2020)

You have to comply with the pertinent rules:

Jury Charge: “The jury charge, however, did not include a question regarding whether Hinojosa and LaFredo became formally married through that ceremony. Instead, the charge asked whether the men were “informally married,” and, if yes, on what date they were married.:

SPECIAL INSTRUCTION FOR QUESTION NUMBER 1

Two people are considered informally married if:

a. they agree to be married, and

b. after the agreement, they lived together in Texas as spouses, and

c. there represented to others that they were married.

QUESTION NUMBER 1

Are GUSTOVA NOEL HINOJOSA and STEVE PAUL LAFREDO informally married? . . . .

To preserve error in the charge, the objecting party must present a complaint to the trial court that [*14] distinctly designates the error and grounds for the objection. Tex. R. App. P. 33.1(a)(1); Tex. R. Civ. P. 272, 274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). Any complaint pertaining to an instruction is waived unless specifically included in the objection. Bishop, 553 S.W.3d at 674 (citing Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005, pet. denied)); Tex. R. Civ. P. 274. Objections to the charge and requests for instructions must comport with the arguments made on appeal. Bishop, 553 S.W.3d at 674 (citing Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 383 (Tex. App.—Houston [1st Dist.] 2011, no pet.)). If the objection at trial is not the same as the complaint on appeal, the issue has not been preserved for review. Id. . . .At the informal charge conference during trial, Hinojosa’s counsel explained he was requesting a question and special instruction regarding formal ceremonial marriage. Specifically, counsel argued the charge should include (i) a special instruction regarding ceremonial marriage stating that two people are formally married [*22] if they agreed to be married, attended a ceremony that married them, and the ceremony was officiated by someone who had the authority to do so, followed by (ii) the question of “Are Gus and Steve married?” At the formal charge conference, however, counsel did not request that special instruction to go with his proposed question on formal, ceremonial marriage, nor did he request any instruction that set out the requirements to establish the existence of a formal, ceremonial marriage under sections 2.001(a), 2.008, 2.201, or 2.202 of the family code. Hinojosa proposed no instructions or definitions on what was required to be formally married in Texas or elsewhere on October 26, 2000 or at any other purportedly relevant time. Hinojosa also did not request granulated questions for the jury to answer whether each of those requirements were met. Instead, Hinojosa submitted a proposed question that asked the jury whether he and LaFredo became married on October 26, 2000 without defining the term “married” or instructing the jury as to what requirements Hinojosa and LaFredo had to meet to become married under Texas law. Without such instructions or definitions, Hinojosa failed to submit a substantially correct proposed charge [*23] to obtain the fact findings necessary to establish that a formal, ceremonial marriage existed between he and LaFredo under Texas law. See, e.g., Watson, 918 S.W.2d at 645 (requested question insufficient to preserve error if legal term included in question is undefined); see also Janelli v. Janelli, 220 S.W.2d 255, 256 (Tex. Civ. App.—Dallas 1949, no writ) (evidence raised question of fact as to existence of ceremonial marriage).

Given the defects in Hinojosa’s proposed question on the existence of a formal, ceremonial marriage, we cannot conclude Hinojosa requested the question in substantially correct wording or that the trial court abused its discretion in refusing to submit it in the charge. The trial court’s failure to submit Hinojosa’s proposed question is, therefore, not grounds for reversal. We overrule Hinojosa’s first issue.” Hinojosa v. Lafredo, No. 05-18-01543-CV, 2020 Tex. App. LEXIS 10475, at *13-14, 21-23 (Tex. App.—Dallas Dec. 31, 2020)

You have to obtain a ruling on your complaint, or object to the trial court’s refusal to rule:

Discovery: “Appellant’s second and third arguments assert the trial court erred in denying appellant’s motion to dismiss because appellees failed to answer appellant’s requests for admissions, resulting in deemed admissions that admitted appellees’ entire case. See Tex. R. Civ. P. 198.1, 198.2(c). Appellant filed the motion to dismiss on the first day of trial.

During the trial, the parties discussed appellees’ failure to answer requests for admission, but appellant did not mention the motion to dismiss. Appellant does not refer this Court to any place in the record where the trial court ruled on the motion to dismiss. Therefore, appellant [*8] has not preserved error for appellate review. See Tex. R. App. P. 33.1(a)(2).” Mays v. Hunn, No. 05-19-00923-CV, 2020 Tex. App. LEXIS 10245, at *7-8 (Tex. App.—Dallas Dec. 28, 2020)

Sanctions: “To preserve error for appellate review, [*6] “the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . and (2) the trial court (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.” Tex. R. App. P. 33.1(a). In this case, appellant did not obtain a ruling on the motion for sanctions, and he does not direct us to any place in the record, and we have not found in the record, where he objected to the trial court’s refusal to rule. We conclude appellant has not preserved any error concerning the trial court’s failure to rule on his motion for sanctions.” Mays v. Hunn, No. 05-19-00923-CV, 2020 Tex. App. LEXIS 10245, at *5-6 (Tex. App.—Dallas Dec. 28, 2020)

All for now.  Y’all have a great week, and stay safe and well.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, December 26, 2020

December 26, 2020

Dear Friends:

I hope everyone has had a safe, healthy, and happy holiday thus far, and that you anticipate more of the same in your future.

Table of Contents

You can raise standing for the first time on appeal–and the trial court can consider standing at any point in the proceedings


You must make your complaint in a timely fashion–thought as this lengthy blurb reveals, one’s affirmative defenses are not necessarily untimely just because they were not raised until after one’s TCPA motion was denied and the denial appealed

You have to comply with the pertinent rules

Jury Charge

The Blurbs


You can raise standing for the first time on appeal–and the trial court can consider standing at any point in the proceedings:

Standing: “ Nothing in Novak bars a trial court from considering whether a plaintiff has standing to bring suit at any stage of a proceeding. In fact, “[a] court can—and if in doubt, must—raise standing on its own at any time.” Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (emphasis added). And a party may challenge its opponent’s standing at any stage of a proceeding. See Tex. Ass’n of Bus., 852 S.W.2d at 443-46 (declaring standing is never presumed, cannot be waived, and may be raised for first time on appeal). Thus, we conclude that the trial court did not err in considering whether appellants lack standing to bring claims against USAA at the time that it did so below.” Allen v. United Servs. Auto. Ass’n, No. 01-20-00305-CV, 2020 Tex. App. LEXIS 10131, at *13 (Tex. App.—Houston [1st Dist.] Dec. 22, 2020)

You must make your complaint in a timely fashion–thought as this lengthy blurb reveals, one’s affirmative defenses are not necessarily untimely just because they were not raised until fter one’s TCPA motion was denied and the denial appealed:

Affirmative Defenses(TCPA): “In their first argument under this issue, appellants assert that the appellees waived any claim to res judicata, collateral estoppel, and compulsory counterclaim because they filed a general denial and motion to dismiss under the TCPA before they pleaded these affirmative defenses. As the record reflects, [*9] appellees filed a general denial in response to appellants’ petition in this lawsuit, in which they did not raise the affirmative defenses of res judicata, collateral estoppel, or compulsory counterclaim. On October 16, 2017, the same day appellees’ answer was filed, appellees filed their motion to dismiss under the TCPA. On appeal, appellants claim that appellees “waived their right to claim compulsory counterclaim as Appellees filed a TCPA action to try and dismiss all claims for all Defendants,” which we construe as a challenge to the timeliness of appellees’ pleadings raising their affirmative defenses.

An affirmative defense that is not timely pleaded is waived. See Caston v. Wiley, No. 14-14-01001-CV, 2016 Tex. App. LEXIS 5806, at *14 (Tex. App.—Houston [14th Dist.] June 2, 2016, no pet.) (mem. op.) (limitations defense waived when raised for first time on appeal); Allright, Inc. v. O’Neal, 596 S.W.2d 208, 209 (Tex. App.—Houston [14th Dist.] 1980, writ dism’d) (limitations defense waived when party went to trial on pleadings not containing any such plea and plea was raised in trial amendment after close of all testimony).

In this case, the trial court denied appellees’ TCPA motion to dismiss and appellees timely appealed that decision on November 17, 2017. Proceedings in the lawsuit were then stayed pending resolution of the TCPA appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West Supp. 2020). The stay ended on September 5, 2018, [*10] when the Second Court of Appeals issued mandate on the TCPA appeal.3Link to the text of the note On September 12, 2018, appellees moved to abate the case on the basis that many of the facts and claims involved were then being litigated in the 17th District Court case. Then, on December 7, 2018, appellees added the aforementioned affirmative defenses to their second amended answer.

Thus, the case had been on file for less than two months when the stay was instituted during the TCPA appeal. Roughly three months after that stay was lifted, appellees raised their affirmative defenses in their written pleadings. At that point, the case was relatively young; little or no discovery had taken place, no motions for summary judgment had been filed, and trial was many months away.

Texas Rule of Civil Procedure 63 allows amendments of pleadings to be filed without leave of court “at such time as not to operate as a surprise to the opposite party” or with leave of court if within seven days before the date of trial. TEX. R. CIV. P. 63. Appellants have not shown, nor have they claimed, that appellees’ amended answer operated as a surprise. Moreover, appellants have not cited any authority for the proposition that a defendant cannot amend his answer after he files a TCPA [*11] motion to dismiss. Finally, appellants have not pointed us to any place in the record indicating that they objected to the amended pleading.

We thus conclude that appellees properly and timely pleaded their affirmative defenses. We overrule appellants’ second issue as to the waiver argument.” J. Michael Ferguson, PC v. Ghrist, No. 07-20-00027-CV, 2020 Tex. App. LEXIS 10098, at *8 (Tex. App.—Amarillo Dec. 21, 2020)

Hearing (pre-Covid): “Gonzalez first argues the trial court’s June 4, 2019 order violates article V, section 7, of the Texas Constitution and is void because Judge Medary conducted the hearing that resulted [*42] in the order by telephone from her courtroom in Corpus Christi [instead of in the statutory county court where the underlying case was pending-a court to which Art. V, sec. 7 does not apply, while Tex. Gov’t Code Sec. 75.059 gives an active district judge like Judge Medary, who was assigned to conduct, the hearing, the powers and duties to hear the case]. . . . By virtue of her assignment, Judge Medary had jurisdiction over the suit. The reporter’s record reflects the hearing was called in the courtroom of the Webb County Court at Law No. 2, counsel for Deputy Trevino appeared in person, and both Gonzalez and an [*43] Assistant Attorney General appeared by telephone. The hearing was not a trial on the merits. Judge Medary announced that she was conducting the hearing by telephone from her courtroom in Corpus Christi. Gonzalez did not object. . . . Gonzalez asserts in his brief that he ‘properly objected.’ However, the objection he cites to was made earlier in the proceeding, before Judge Medary disclosed she was in Corpus Christi. Gonzalez objected ‘to these proceedings,’ specifically that his witnesses were not present and to the proceedings being closed and not being held in open court. Deputy Trevino’s counsel stated for the record that he was in the courtroom with the doors open and that Mrs. Gonzalez and a child were present. Gonzalez then asked the judge where she was located. She responded, ‘I am in Corpus Christi, I am in my courtroom at this time. I am on a speaker phone with everybody, including yourself. The case itself is being heard in an open courtroom in another jurisdiction from me.’ Gonzalez did not object at that time or at any time later in the hearing to Judge Medary not being physically present in Laredo. See Tex. R. App. P. 33.1(a) (requiring preservation of a complaint in the trial court through timely request, objection, or motion stating specific grounds for ruling sought).” In re M.A.G., No. 04-18-00833-CV, 2020 Tex. App. LEXIS 10181, at *43 n.13 (Tex. App.-San Antonio Dec. 23, 2020)

You have to comply with the pertinent rules:

Jury Charge: “To the extent that it can be argued that William and Linda’s limitations complaint was preserved by raising it in their various post-judgment motions, we emphasize that Texas Rule of Civil Procedure 279 states the following: “Upon appeal all independent grounds [*9] of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.” TEX. R. CIV. P. 279. In this case, William and Linda did not request a jury submission regarding the affirmative defense of statute of limitations. Accordingly, we cannot conclude that William and Linda properly preserved their complaint about the statute of limitations through the raising of the complaint in various post-judgment motions. See id.” Kovar v. Seay, No. 10-19-00273-CV, 2020 Tex. App. LEXIS 10173, at *8-9 (Tex. App.—Waco Dec. 22, 2020)

All for now.  Stay safe, healthy, and happy.

Yours, Steve Hayes

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