Error Preservation in Texas Civil Cases, November 19, 2018

November 19, 2018

Dear All:

The topics included in this blog entry include:

Some complaints can be raised for the first time on appeal–like ineffective assistance of counsel in a parental right termination case

Attorney

A recent case brought to mind the split of authority on the issue of whether a complaint about the form of a temporary injunction order can first be raised on appeal. Austin and a few other courts say no–but the majority of courts say that this complaint can be first raised on appeal

Temporary Injunction Order

While this does not address how late in the process one may object to a failure to segregate attorneys fees and still preserve error, an objection is timely if made when evidence as to fees is offered

Attorneys fees

You have preserved a complaint about the immateriality of a jury’s answer if you first raise it in a motion to disregard findings and for judgment notwithstanding the verdict

Jury Verdict

You have to comply with other pertinent rules

Bill of Exception
Default Judgment
Factual Sufficiency
Jury Charge

Be careful to not abandon your complaint–e.g., after the granting of a partial summary judgment against you, do not omit from your subsequent amended petition the claim on which summary judgment was granted

Summary Judgment

You have to make the trial court aware of your complaint–set a hearing on your motion

Motions

Your complaint must be timely

Jury Trial

A recent case brought to mind the split of authority on the issue of whether a complaint about the form of a temporary injunction order can first be raised on appeal. Austin and a few other courts say no–but the majority of courts say that this complaint can be first raised on appeal:

Temporary Injunction Order: “In response, the Grahams contend in part that, as a threshold matter, DHJB has failed to preserve for appellate review any argument that the order fails to comply with the specificity requirements of rule 683. This Court has long recognized that a complaint that a temporary injunction fails to comply with rule 683’s specificity requirements is considered one of form that is waived unless it is adequately preserved before the trial court. Shorts, 549 S.W.3d at 880; see Texas Tech Univ. Health Scis. Ctr. v. Rao, 105 S.W.3d 763, 768 (Tex. App.-Amarillo 2003, pet. dism’d) (noting split of authority among courts of appeals on whether complaint of failure to comply with rule 683 is waived if not raised before trial court, but ultimately agreeing with this Court’s previous holding in Emerson v. Fires Out, Inc., 735 S.W.2d 492, 494 (Tex. App.-Austin 1987, no writ), that such complaints must be preserved). As this Court has previously explained, “it serves no good purpose to permit appellants to lie in wait and present this error in form for the first time on appeal.” Emerson, 735 S.W.2d at 494. To adequately [*8] preserve an error for review on appeal, rule 33.1 of the Texas Rules of Appellate Procedure requires the record to show (1) that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint; and (2) that the trial court expressly or implicitly ruled on the request, objection, or motion. See Tex. R. App. P. 33.1(a).

DHJB contends that it has adequately preserved error on its rule 683 complaints by raising the issue in its “Response to Plaintiffs’ Post-Hearing Brief in Support of their Application for Temporary Injunction,” filed shortly after the trial court signed the temporary-injunction order. In particular, DHJB points to that portion of the pleading stating, “The open-ended request for injunctive relief proffered by the Grahams calls for interpretations, inferences, and conclusions as to the affected parties and their respective duties that exceed the limits of the constitution and cannot be granted.” At the conclusion of the responsive pleading, DHJB “requests that the Court deny Plaintiff’s application for a temporary injunction.” We conclude that this pleading fails to preserve error on DHJB’s rule 683 complaints for several [*9] reasons.

First, although the argument relied on by DHJB in its responsive pleading generally asserts that the injunctive relief requested by the Grahams is vague and overbroad, we cannot conclude that the argument was sufficiently specific to make the trial court aware that, in DHJB’s view, the resulting temporary injunction failed to specify how the Grahams would suffer irreparable harm as required by rule 683. Second, HN7 although “magic words” are not required, we cannot conclude that the argument was presented in the form of a “request, objection, or motion” to modify or correct the already-issued temporary-injunction order such that the trial court would have understood that a ruling on the complaint was necessary. Cf. Sand Point Ranch, Ltd. v. Smith, 363 S.W.3d 268, 274 n.11 (Tex. App.-Corpus Christi 2012, no pet.) (noting that error was preserved despite fact that appellant did not use “magic words ‘object’ or ‘objection'”); Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996) (where context was clear from record, error was preserved despite failure to state “magic words,” “I object”). Finally, even if we were to construe DHJB’s pleading as requesting a ruling on its complaint to the form of the trial court’s temporary-injunction order, nothing in the record suggests that the trial court, in fact, ruled on the complaint, expressly or [*10] implicitly. In short, based on the record before us, including the Grahams’ post-hearing response, we cannot conclude that DHJB brought its complaints about the form of the temporary injunction to the trial court’s attention and obtained a ruling. Thus, DHJB has failed to preserve error on these appellate issues. See Tex. R. App. P. 33.1(a)(1), (2)(A).” DHJB Dev., LLC v. Graham, No. 03-18-00343-CV, 2018 Tex. App. LEXIS 9295, at *7 (App.—Austin Nov. 15, 2018)

While this does not address how late in the process one may object to a failure to segregate attorneys fees and still preserve error, an objection is timely if made when evidence as to fees is offered:

Attorneys fees: “The Corey Appellants assert that the trial court erred by awarding the Rankin Appellees $46,957 in attorney’s fees because the appellees did not properly segregate between recoverable and unrecoverable fees. N. 2 N. 2 The Corey Appellants preserved error on this point by objecting when evidence of attorney’s fees was presented and considered by the trial court. Tex. R. App. P. 33.1(a)(1);” Corey v. Rankin, No. 14-17-00752-CV, 2018 Tex. App. LEXIS 9224, at *24 (App.—Houston [14th Dist.] Nov. 13, 2018)

You have preserved a complaint about the immateriality of a jury’s answer if you first raise it in a motion to disregard findings and for judgment notwithstanding the verdict:

Jury Verdict: “Broussard next contends that Orr has waived any complaint about the materiality of the jury’s negative answer to the question of whether Broussard breached his co-guarantor obligations to Orr. According to Broussard, Orr waived this complaint because Orr proposed, and did not object to, this charge question. A complaint that a jury’s answer is immaterial is not a jury-charge [*9] complaint which must be raised before the jury deliberates. See Musallam v. Ali, No. 17-0762, S.W.3d , 2018 Tex. LEXIS 1096, 2018 WL 5304678, at *3 (Tex. Oct. 26, 2018). A party instead can preserve a materiality complaint by raising the issue in a motion for judgment notwithstanding the verdict, a motion to disregard the finding, or a motion for new trial. See BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402 (Tex. 2017). Because Orr argued in his combined motion to disregard findings and for judgment notwithstanding the verdict that certain jury findings were immaterial, those arguments have been preserved for review.” Orr v. Broussard, No. 14-17-00836-CV, 2018 Tex. App. LEXIS 9325, at *8-9 (App.—Houston [14th Dist.] Nov. 15, 2018)

You have to comply with other pertinent rules:

Bill of Exception: “GayeLynne timely filed a formal bill of exception containing largely the same evidence she presented in her offers of proof at trial and the same exhibits the trial court admitted at trial “for record purposes only.” See Tex. R. App. P. 33.2(e)(1). Tina objected to the bill. When, as here, the parties do not agree on a bill’s contents, the trial judge, after notice and hearing, must (1) find the bill is correct, sign it, and file it with the trial-court clerk; (2) suggest corrections to the complaining party, and if the complaining party agrees to the corrections, sign and file the bill with the trial-court clerk; or (3) if after making suggested corrections, the complaining party will not agree to the corrections, return the bill to the complaining party with the judge’s written refusal on it. Tex. R. App. P. 33.2(c). Here, the trial judge did not hear the bill, sign the bill, or suggest corrections. Thus, any errors complained of in GayeLynne’s bill of exception that were not presented in her offers of proof and exhibits admitted for record purposes only are not preserved for our review.” Estate of Luce, No. 02-17-00097-CV, 2018 Tex. App. LEXIS 9341, at *26 n.11 (App.—Fort Worth Nov. 15, 2018)

Default Judgment: “By his first and fourth issues, Guillen challenges the default judgment on its merits. However, Guillen failed to preserve error because he did not raise these issues in a motion for new trial to set aside the default judgment. HN9 Rule 324 provides that a point in a motion for new trial is a prerequisite to a complaint on appeal on which evidence must be heard. See Tex. R. Civ. P. 324(b)(1). As examples of such complaints, rule 324 identifies complaints involving the “failure to set aside a judgment by default.” Id.; McAllen Med. Ctr. v. Rivera, 89 S.W.3d 90, 94 (Tex. App.—Corpus Christi 2002, no pet.). Guillen makes factual assertions in his brief which “underscore the need for an evidentiary hearing.” See Hendricks v. Barker, 523 S.W.3d 152, 157 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Guillen contends that for several years, local authorities have been taxing him on two properties that do not belong to him, one of which is a local cemetery. Guillen contends, without any record citation, that each year the county’s “clerks would assure Appellants that just pay that one year and Appellants’ names would be removed from the tax rolls.” Guillen alleges that the promised removal never occurred, and, instead, his taxes increased. These sorts of factual conflicts must be resolved in the trial court before we, the appellate court, can address them. See [*13] id. Because Guillen never called for an evidentiary hearing or presented these issues in a motion for new trial, he has preserved nothing for appellate review.” Guillen v. Cameron Cty. & La Feria Indep. Sch. Dist., No. 13-16-00682-CV, 2018 Tex. App. LEXIS 9307, at *12-13 (App.—Corpus Christi Nov. 15, 2018)

Factual Sufficiency: “A complaint that the evidence is factually insufficient to support a jury answer, or that the answer is against the overwhelming weight of the evidence, must have been raised in a motion for new trial. Tex. R. Civ. P. 324(b)(2)-(3); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Neither Mother nor Father filed a motion for new trial. Because a motion for new trial is a prerequisite to a factual sufficiency challenge in a jury trial, Mother and Father have forfeited their complaints that the evidence is factually insufficient to support the best-interest findings against them. See Tex. R. Civ. P. 324(b)(2)-(3).” In the Interest of J.S., No. 02-18-00164-CV, 2018 Tex. App. LEXIS 9186, at *5 (App.—Fort Worth Nov. 8, 2018)

Jury Charge: “As for Blevins’s final issue concerning the trial court’s failure to give his requested jury instruction, that issue was not preserved for appeal. Blevins apparently asked for a “part two” to the instruction that was actually given. The instruction given was: “State Farm issued a policy to William Blevins providing coverage for UM/UIM damages and that such policy was in effect on October 2, 2011, the date of the collision at issue.” Although the record does not contain the exact language that Blevins sought to include as part two, from the parties’ discussions on the record of proposed stipulations at the trial’s beginning, we understand that he wanted a second jury instruction to this effect: that “the parties further stipulate that William Blevins’ UM/UIM policy provided coverage up to the limit of his policy for damages, if any, that were caused in this collision [*41] and for which there was no coverage, or insufficient coverage, on the liability policy or policies of the at-fault driver or drivers.” That language was never submitted in written form either as a suggested stipulation or as a requested jury instruction. Blevins failed to preserve error, if any, in the omission of an instruction along the lines of the above language. His proposed jury questions and instructions that appear in the clerk’s record did not contain any instruction at all about UIM coverage, nor does the record contain the proposed written charge that the parties discussed at the close of all evidence and that ostensibly contained a secondary instruction similar to the above proposed stipulation.. . . . Rule 278 provides that “[f]ailure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.” Tex. R. Civ. P. 278;” Blevins v. State Farm Mut. Auto. Ins. Co., No. 02-17-00276-CV, 2018 Tex. App. LEXIS 9344, at *40-42 (App.—Fort Worth Nov. 15, 2018)

Be careful to not abandon your complaint–e.g., after the granting of a partial summary judgment against you, do not omit from your subsequent amended petition the claim on which summary judgment was granted:

Summary Judgment: “Filing an amended petition [after the granting of an interlocutory partial summary judgment] that does not include a cause of action effectively nonsuits or voluntarily dismisses the omitted claim as of the time the pleading is filed, unless circumstances indicate otherwise, such as when the amended petition contains statements demonstrating an intent to preserve the omitted claim. FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632-33 (Tex. 2008); Spellmann v. Love, 534 S.W.3d 685, 690 (Tex. App.—Corpus Christi 2017, pet. denied). The same principle holds true for an amended petition that omits a previously named defendant. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); Spellmann, 534 S.W.3d at 690. For appellate purposes, abandoning a cause of action or a defendant in an amended pleading waives any error by the trial court regarding the abandoned cause of action or defendant.” Lopez v. Crest Gateway, LP, No. 02-17-00429-CV, 2018 Tex. App. LEXIS 9182, at *4 (App.—Fort Worth Nov. 8, 2018)

You have to make the trial court aware of your complaint–set a hearing on your motion:

Motions: “In conclusion, the record shows that Ayala-Gutierrez never asked the trial court to set hearings on his motions [for a bench warrant]. Thus, he failed to preserve [*9] his complaints that the trial court never ruled on motions for our review. See Tex. R. App. P. 33.” Ayala-Gutierrez v. Strickland, No. 09-17-00119-CV, 2018 Tex. App. LEXIS 9333, at *8-9 (App.—Beaumont Nov. 15, 2018)

Your complaint must be timely:

Jury Trial: “A party must object to proceeding without a jury when the case is called to trial or the argument is waived. In re W.G.O. III, No. 02-12-00059-CV, 2013 Tex. App. LEXIS 189, 2013 WL 105661, at *2 (Tex. App.-Fort Worth Jan. 10, 2013, pet. denied) (mem. op.). The record shows the parties failed to timely object to the trial court’s denial of Father’s perfected right to a jury trial. The parties were initially called at 9:45 a.m. Mother’s and Father’s counsel were both present on their behalves and counsel for all parties announced “ready.” The trial court instructed them to return at 1:00 p.m. When they returned, the trial court acknowledged the case had been set for jury trial and that Mother and Father were not present. After waiting approximately fifteen minutes, the court announced it would proceed to trial before the court. Again, counsel for all parties announced they were ready and proceeded to trial without objection. It was not until after [*13] the State passed its first witness that Father’s counsel inquired about the jury and indicated that he did not know how Father wished to proceed. Shortly thereafter, Mother’s counsel stated, “Judge, if I may, I just also want to voice my objection to preserve error for my client with respect to the jury trial demand.” This attempt to preserve error was untimely because the bench trial had already commenced. Therefore, we conclude Mother and Father waived any right to complain on appeal about the trial judge’s alleged error.” In the Interest of A.Ja.T., No. 05-18-00705-CV, 2018 Tex. App. LEXIS 9358, at *12-13 (App.—Dallas Nov. 15, 2018)

As usual, there were many cases in which courts held that parties failed to preserve their complaint by not raising it at all in the trial court.

I hope this helps.  Y’all have a great Thanksgiving.

Yours,

Steve Hayes (shayes@stevehayeslaw.com; www.stevehayeslaw.com)

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Error Preservation in Texas Civil Cases, November 6, 2018

November 6, 2018

Dear All:

The cases included in this blog entry include:

Some complaints can be raised for the first time on appeal–like ineffective assistance of counsel in a parental right termination case

Attorney

Your complaint must be timely

Defective Verdict
Evidence

You have to comply with other pertinent rules

Evidence
Legal and Factual Sufficiency
Notice
Notice
Summary Judgment (homestead)

You must get a ruling on your complaint

Attorney
Motion to Compel

Some complaints can be raised for the first time on appeal–like ineffective assistance of counsel in a parental right termination case:

Attorney: “A complaint of ineffective assistance of counsel may be raised for the first time on direct appeal. See J.O.A., 283 S.W.3d at 340. A motion for new trial can be useful because it allows the complaining party to develop a record to support his complaint. However, the Department has not directed us to any authority suggesting a motion for new trial is a prerequisite to preserve error on ineffective assistance of counsel. The appellant may be unsuccessful in that complaint if the record below is not sufficiently developed, but the lack of merit in the complaint is distinct from the appellant’s right to assert the complaint.” In the Interest of Z.M.R., No. 14-18-00461-CV, 2018 Tex. App. LEXIS 8960, at *25 (App.—Houston [14th Dist.] Nov. 1, 2018)

Your complaint must be timely:

Defective Verdict: While the following may be a correct statement of the law–or may not be–I think it far too assertive as to the holding in Menchaca, as to which no majority of the Court dealt with this issue (though you have to have a scorecard to keep track of who voted for what in Menchaca): “Even were we to conclude that Davis has identified a conflict in the jury’s answers, [*14] which we do not, it is well-established that HN1 “to preserve error based on fatally conflicting jury answers, parties must raise that objection before the trial court discharges the jury.” See USAA Texas Lloyds Co., 545 S.W.3d at 518. When the alleged error is an incomplete, nonresponsive, or conflicting jury verdict, rule 295 requires the trial court to correct the error by providing additional instructions and retiring the jury “for further deliberations.” Id. (quoting Tex. R. Civ. P. 295). Once the trial court has discharged the jury, it cannot reform the conflicting answers as rule 295 requires. Id. If the trial court does not identify a conflict and no party raises it before the court discharges the jury, “the conflict provides no basis for reversal on appeal, even if it is ‘fatal.'” Id. at 520. We conclude that, because Davis did not raise any objections to the jury’s answers before the jury was discharged, error, if any, is not preserved.” Davis v. Vaughters, No. 01-17-00612-CV, 2018 Tex. App. LEXIS 8951, at *13-14 (App.—Houston [1st Dist.] Nov. 1, 2018)

Evidence: “After Dr. Davis showed these video clips, defense counsel continued to question Dr. Davis about his employers’ research generally before turning to the issue of whether he had an opinion regarding the San Lorenzo Church fire. The record shows that defense counsel finished [*111] with the direct-examination, and the Families cross-examined Dr. Davis for some time. During a break, counsel for the Families raised objections to various videos that Dr. Davis had shown specifically related to the issues of frosting and a residual flame in the event of a propane leak and moved for a mistrial. The Families contend that their objection to Dr. Davis’ use of the videos after lengthy questioning on both direct and cross-examination was timely because the defendants failed to provide Dr. Davis’ file to the Families in time for the deposition or trial. However, Tex.R.App.P. 33.1 requires an objection to be timely, an “[o]bjection to the admission of evidence must be made when the evidence is offered and not after it has been introduced.” Wenco of El Paso/Las Cruces, Inc. v. Nazario, 783 S.W.2d 663, 665 (Tex.App.–El Paso 1989, no writ). Because the Families did not object to the videos until after a substantial amount of time had passed, the objection was not timely and this issue was not preserved for appellate review.” Porter v. Heritage Operating, L.P., No. 08-13-00002-CV, 2018 Tex. App. LEXIS 8902, at *110-11 (App.—El Paso Oct. 31, 2018)

You have to comply with other pertinent rules:

Evidence: “Here, we do not find, and Jennings does not direct us to, any place in the record in which he actually offered in the trial court, either at the hearing on the motion for enforcement or at the hearing on his motion for new trial, the evidence and testimony, i.e., regarding his payment of taxes due on, and any lack of insurability of, the Yida property, that he complains was excluded. See Akukoro, 2013 Tex. App. LEXIS 15302, 2013 WL 6729661, at *6; Fletcher, 57 S.W.3d at 606. There being no actual offer of the complained-of evidence and testimony in the [*10] trial court, no ruling by the trial court, and no offer of proof or bill of exception, we conclude that Jennings has waived any error in such exclusion.” Jennings v. Martinez, No. 01-17-00553-CV, 2018 Tex. App. LEXIS 8520, at *9 (App.—Houston [1st Dist.] Oct. 18, 2018)

Legal and Factual Sufficiency: “ In a jury trial, a legal sufficiency issue must be preserved through one of the following procedural steps in the trial court: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex. 1992); Salinas v. Fort Worth Cab & Baggage Co., 725 S.W.2d 701, 704 (Tex. 1987). Further, to complain about the factual sufficiency of the evidence to support a jury finding, a party must file a motion for new trial. See Tex. R. Civ. P. 324(b). A review of the record reveals that J.C. did not take any of the procedural steps necessary to advance either his legal or factual sufficiency challenges for appellate review. Thus, J.C.’s arguments regarding the sufficiency of the evidence to support the temporary commitment order are not preserved.” In the Interest of J.C., No. 10-18-00214-CV, 2018 Tex. App. LEXIS 8914, at *4 (App.—Waco Oct. 31, 2018)

Notice: “Tyhan first contends that the trial court abused its discretion by denying Tyhan’s motion for a new trial because Tyhan did not receive notice of the hearing on Cintas’s motion for summary judgment.

We review a trial court’s denial of a motion for new trial for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). But we do so only if the movant has preserved its complaint for appellate review; if a movant seeks a new trial on a ground on which evidence must be heard by the trial court, the movant must obtain a hearing on its new-trial motion to preserve error. See TEX. R. APP. P. 33.1(b); Felt v. Comerica Bank, 401 S.W.3d 802, 808 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A movant must present evidence to show lack of notice as to a trial setting or hearing. Hendricks v. Barker, 523 S.W.3d 152, 157 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Wilson v. Gen. Motors Acceptance Corp., 897 S.W.2d 818, 820 (Tex. App.—Houston [1st Dist.] 1994, no writ).

The record does not show that Tyhan set its motion for hearing, or requested that the trial court consider it by written submission, and the trial court never acted on the motion. Instead, Tyhan’s motion for new trial was overruled by operation of law. Tyhan therefore has not preserved its complaint as to lack of notice for our review. See TEX. R. APP. P. 33.1(b); Felt, 401 S.W.3d at 808; see also R & G Transp. v. Fleetmatics, No. 01-14-00891-CV, 2016 Tex. App. LEXIS 624, 2016 WL 268553, at *2 (Tex. App.—Houston [1st Dist.] Jan. 21, 2016, no pet.) (mem. op.)  (no abuse of discretion when movant fails to set new-trial motion for hearing and it is overruled by operation of law).” Tyhan, Inc. v. Cintas Corp. No. 2, No. 01-18-00027-CV, 2018 Tex. App. LEXIS 8847, at *3 (App.—Houston [1st Dist.] Oct. 30, 2018)

Notice: “Johnson and Walton asked the trial court to [*3] set aside its default judgment in their motion for new trial [based on lack of notice of the lawsuit and the default hearing, apparently], but they did not set the motion for a hearing, or request that the trial court consider it by written submission. The trial court never acted on the motion. Instead, the motion was denied by operation of law. Because a hearing on the motion for new trial was required to preserve the issues raised in the motion for our review, we overrule their appellate complaint. See Tex. R. App. P. 33.1(b).” Johnson v. Lee, No. 01-17-00773-CV, 2018 Tex. App. LEXIS 8851, at *2-3 (App.—Houston [1st Dist.] Oct. 30, 2018)

Summary Judgment (homestead): “In their second issue, the Brannicks argue that the trial court erred in granting summary judgment because Nationstar did not establish its entitlement to judicial foreclosure. Specifically, the Brannicks assert that Nationstar failed to overcome an alleged presumption of invalidity that attaches to a home-equity loan under the Texas Constitution, failed to demonstrate that the loan complies with all the requirements of Article XVI, Section 50(a) of the Texas Constitution, and failed to produce a copy of the Note signed by both appellants. Nationstar asserts that the Brannicks waived both arguments by not presenting them to the trial court. “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal” of a summary judgment. Tex. R. Civ. P. 166a(c); ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 545 (Tex. 2017). The Brannicks argued the statute of limitations and “chain of title errors” in their response to Nationstar’s motion but did not assert any of the arguments they now make on appeal. Consequently, we conclude that the Brannicks have waived each of these arguments. n. 4 n. 4 The Brannicks argue that this issue cannot be waived because it amounts to a challenge to the legal sufficiency of Nationstar’s grounds for summary judgment. See, e.g., Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014) (stating rule that nonmovant may challenge “the legal sufficiency of the grounds presented by the movant” for the first time on appeal). However, the Texas Supreme Court has held that the terms and conditions in section 50(a) “only assume constitutional significance when their absence in a loan’s terms is used as a shield from foreclosure.” Garofolo v. Ocwen Loan Servicing, L.L.C., 497 S.W.3d 474, 478 (Tex. 2016); see Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 546 (Tex. 2016) (observing that “section 50(a) does not create substantive rights beyond a defense to foreclosure of a home-equity lien securing a constitutionally noncompliant loan”). The Brannicks did not raise section 50(a) in the trial court as a defense to foreclosure and they may not do so for the first time on appeal. See Watson v. Tipton, 274 S.W.3d 791, 800 (Tex. App.—Fort Worth 2008, pet. denied) (“Accordingly, Appellants had to affirmatively plead homestead and cannot raise it for the first time on appeal.”).” Brannick v. Aurora Loan Servs., LLC, No. 03-17-00308-CV, 2018 Tex. App. LEXIS 8981, at *10 (App.—Austin Nov. 2, 2018)

You must get a ruling on your complaint:

Attorney: “Next, Jamal complains that the trial court did not address his motion to appoint counsel to represent him. HN4 As a prerequisite to presenting a complaint for appellate review, the record must show that the complaining party made the complaint to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a). The trial court must either rule on the request, objection, or motion, expressly or implicitly, or refuse to rule, and the complaining party must object to the refusal. Id. The record contains no evidence that Jamal received a ruling on his motion to appoint counsel or that he objected to the court’s refusal to rule. He therefore has not preserved this issue for our review.” Jamal v. Woodbridge Crossing, No. 01-16-00726-CV, 2018 Tex. App. LEXIS 8849, at *4 (App.—Houston [1st Dist.] Oct. 30, 2018)

Motion to Compel: “BFM simultaneously filed a separate motion to compel Chastain’s deposition and requested that the trial court rule that Botrie’s communications with Chastain were not privileged. The trial court denied the motion for a continuance by written order but never ruled on the motion to compel. Because the trial court neither ruled on nor refused to rule on the motion to compel, we conclude that BFM failed to preserve error, if any. See Tex. R. App. P. 33.1(a).” Barton Food Mart, Inc. v. Botrie, No. 03-17-00292-CV, 2018 Tex. App. LEXIS 8673, at *11 n.5 (App.—Austin Oct. 25, 2018)

As usual, a number of cases dealt with situations in which parties did not raise their complaints in the trial court.

I hope this helps.  Y’all take good care.

Yours, Steve Hayes

shayes@stevehayeslaw.com;  www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, October 25, 2018

October 25, 2018

Dear Folks:

The cases included in this blog entry cover the following error preservation topics:

Your complaint must be sufficiently specific

Constitutional

You can first complain on appeal about the fact that the summary judgment purports to decide a claim not addressed in the summary judgement motion-an error preservation doctrine seemingly at odds with the fact that you must complain about a defect in a non-msj judgment in the trial court to preserve error

You must comply with the pertinent rules–such Rule 103 requiring an offer of proof when the trial court excludes your evidence

You must get a ruling on your complaint

Parties
Severance

And now, for the specific topics:

Your complaint must be sufficiently specific. The courts don’t decide very many error preservation fights on the specificity question, so you might want to take note of this case:

Constitutional: “Mindful of the fact that a party need not employ hyper-technical or formalistic words or phrases to preserve a complaint, see Clark, 365 S.W.3d at 339, we conclude that Wargocz’s objection was insufficiently specific to alert the trial court to the facial challenge he attempts to raise on appeal. With regard to his due-process objection, Wargocz made no reference to the Constitution or the Due Process Clause, nor did he challenge the validity of the harassment or stalking statutes on the ground that their use of the phrase “harass, annoy, alarm, abuse, torment, embarrass, or offend” rendered them impermissibly vague. And nothing else in the record indicates that the trial court understood Wargocz’s objection as including the facial attack he has asserted on appeal. See State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013) (noting an objection is sufficiently specific if the record demonstrates the trial court understood the basis of the objecting party’s request). Accordingly, because Wargocz never raised his facial challenge in the trial court, he failed to preserve that issue for review.” Wargocz v. Brewer, No. 02-17-00178-CV, 2018 Tex. App. LEXIS 8339, at *14-15 (App.—Fort Worth Oct. 11, 2018)

You can first complain on appeal about the fact that the summary judgment purports to decide a claim not addressed in the summary judgement motion-an error preservation doctrine seemingly at odds with the fact that you must complain about a defect in a non-msj judgment in the trial court to preserve error:

Summary Judgment: “In its first responsive argument, Roberts contends that Sanchez waived any argument that Roberts’s motion failed to address Sanchez’s purported strict products liability claim. Roberts notes that Sanchez did not file special exceptions and did not complain in either her motion to reconsider or motion for new trial that the trial court granted summary judgment on a claim not addressed in Roberts’s motion. Roberts contends that, because Sanchez failed to raise this issue in the trial court, the issue cannot be considered on appeal as grounds for reversal.

We disagree with Roberts’s contention. A non-movant is not required to except to a movant’s failure to assert specified grounds in a motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (plurality op.). Summary judgment cannot be granted except on the [*4] grounds expressly presented in the motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002). We, therefore, cannot affirm summary judgment on a basis not stated in Roberts’s motion. See McConnell, 858 S.W.2d at 339. Sanchez has not waived her complaint that the trial court granted summary judgment on grounds that were not presented in the motion.” Sanchez v. Roberts Truck Ctr. of Tex., LLC, No. 07-17-00213-CV, 2018 Tex. App. LEXIS 8213, at *3-4 (App.—Amarillo Oct. 9, 2018)

Take note that, with regard to complaints defects in judgments not the product of summary judgments, one has to preserve those complaints in a motion for new trial or motion to modify/correct/reform the judgment. Solomon v. Steitler, 312 S.W.3d 46, 60 (Tex. App.—Texarkana 2010, no pet.), and cases cited therein; Robles v. Mann, No. 13-14-00211-CV, 2016 WL 1613316, 2016 Tex. App. LEXIS 4135, at *15 (Tex. App.—Corpus Christi Apr. 21, 2016, no pet.); D&KW Family, L.P. v. Rampart Capital Corp., No. 01-01-00156-CV, 2002 WL 1585920, 2002 Tex. App. LEXIS 5100, at *5 (Tex. App.—Houston [1st Dist.] July 18, 2002, pet. denied); Holland v. Hayden, 901 S.W.2d 763, 765 (Tex. App.—Houston [14th Dist.] 1995, writ denied)

You must comply with the pertinent rules–such Rule 103 requiring an offer of proof when the trial court excludes your evidence:

Evidence: “Thus, when a trial court excludes evidence, the proponent must preserve the evidence in the record in order to complain of its exclusion on appeal. Fletcher, 57 S.W.3d at 606; see also Tex. R. Evid. 103(a). If a party does not make an offer of proof, it must introduce the excluded evidence into the record by a formal bill of exception. Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 494-95 (Tex. App.—Fort Worth 1999, pet. denied); see also Tex. R. App. P. 33.2. Failure to demonstrate the substance of the excluded evidence or testimony through an offer of proof or bill of exception results in a waiver of any error in its exclusion. Akukoro, 2013 Tex. App. LEXIS 15302, 2013 WL 6729661, at *6; Sw. Country Enters., 991 S.W.2d at 494. Here, we do not find, and Jennings does not direct us to, any place in the record in which he actually offered in the trial court, either at the hearing on the motion for enforcement or at the hearing on his motion for new trial, the evidence and testimony, i.e., regarding his payment of taxes due on, and any lack of insurability of, the Yida property, that he complains was excluded. See Akukoro, 2013 Tex. App. LEXIS 15302, 2013 WL 6729661, at *6; Fletcher, 57 S.W.3d at 606. There being no actual offer of the complained-of evidence and testimony in the [*10] trial court, no ruling by the trial court, and no offer of proof or bill of exception, we conclude that Jennings has waived any error in such exclusion.” Jennings v. Martinez, No. 01-17-00553-CV, 2018 Tex. App. LEXIS 8520, at *9 (App.—Houston [1st Dist.] Oct. 18, 2018)

You must get a ruling on your complaint:

Parties: “Relevant to our analysis, to preserve error for appeal, a party must show that after making its complaint, the trial court either (1) “ruled on the request, objection, or motion, either expressly or implicitly” or (2) “refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.” See TEX. R. APP. P. 33.1. Here, although CE filed an application for status conference requesting for the trial court to add Unison Site Management, LLC and T14 MelTel to the suit and for production of certain documents, CE failed to obtain a ruling from the trial court. At the hearing on the application for status conference and on the competing motions for summary judgment, CE argued that the trial court was required to add the above-listed parties. At  the end of the hearing, the trial court denied CE’s motion for summary judgment. Unison asked the trial court to clarify that it meant it was granting Unison’s motion for summary judgment, and the trial court stated that it was. The Norrells also asked the trial court to clarify if it was dismissing them from the cause, and the trial court stated it was. However, CE did not ask the trial court for a ruling on its request to add the parties listed above or to rule on its request for production. Thus, the trial court did not explicitly rule on CE’s requests. Moreover, we conclude that by granting summary judgment in favor of Unison and the Norrells, the trial court did not implicitly deny CE’s requests. See Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 662 (Tex. App.-Waco 2002, no pet.) (explaining that a ruling on a motion for summary judgment does not constitute an implicit ruling on the non-prevailing party’s objections to summary judgment evidence). Therefore, we conclude that CE failed to preserve error. We overrule CE’s fifth issue.” Enhancement v. Norrell, No. 13-16-00581-CV, 2018 Tex. App. LEXIS 8456, at *16-17 (App.—Corpus Christi Oct. 18, 2018)

Severance: “We overrule Appellants Rieder, Rapee, and Cadbury’s second issue arguing that the trial court should have dismissed Intervenor Meeker’s first claim for declaratory relief—regarding his right to hire Woods without incurring liability under the Cadbury Operating Agreement—for lack of personal jurisdiction because that claim falls within the scope of the forum-selection clause. See, e.g., Bloom Bus. Jets, 522 S.W.3d at 770. Because—as pointed out by Intervenors—Appellants Rieder, Rapee, and Cadbury did not set a hearing on their motion to sever and abate Intervenor Meeker’s second claim for declaratory relief regarding his right to terminate the CQuentia/Cadbury Series Agreement and because the trial court did not rule on it, Appellants Rieder, Rapee, and Cadbury’s complaint that the trial court did not grant that motion is not properly before us. See Tex. R. App. P. 33.1 (stating that to “preserve a complaint for appellate review, the record must show . . . that the trial court . . . ruled on the request . . . either expressly or implicitly”).” Rieder v. Meeker, No. 02-17-00176-CV, 2018 Tex. App. LEXIS 8537, at *33 (App.—Fort Worth Oct. 18, 2018)

That’s all for now, buckaroos.  Y’all have a good weekend.

Yours,

Steve Hayes (shayes@stevehayeslaw.com)

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, October 8, 2018

October 8, 2018

Dear All:

While it involved a complaint that was not preserved, and I have typically quit mentioning those in this blog, you need to read both the majority and dissenting opinions in a case which dealt with “agreed to” language in a judgment, and when such language waives a complaint in an agreed judgment (and the effect of that waiver).  I promise the facts alone are worth reading.  In the Estate of Nielsen, No. 02-17-00251-CV, __WL__, 2018 Tex. App. LEXIS 7915, at *19-20 (Tex. App.—Fort Worth Sep. 27, 2018, no pet. hist.). These opinions teach us the fraught-filled nature of this area of the law.

The cases summarized below in this blog entry include cases dealing with:

You have to get a ruling on your objections to summary judgment evidence

Summary Judgment Evidentiary Objections

Some complaints may be raised for the first time on appeal

Affidavit
Juvenile

To preserve your complaint, you must comply with other pertinent rules

Findings of Fact (Family Law)
Lack of Capacity
Lack of Capacity

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

Damages
Legal and Factual Sufficiency

You have to get a ruling on your objections to summary judgment evidence–and while the Supreme Court has indicated that such a ruling may be implied (after previously telling us it had to be in writing and signed), such a ruling is not implied by a “ruling on the motion for summary judgment” nor the fact that “the trial court’s judgment in this case includes a Mother Hubbard clause stating that ‘[a]ll other relief not expressly granted is denied[,]”:

Summary Judgment Evidentiary Objections: “On appeal, Houle complains that the records attached to Trittipoe’s affidavit were not properly authenticated, were incomplete, and were not true and complete copies of the originals because they bore redaction of Houle’s specific account number with Capital One.

These purported defects are purely formal. See Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.–San Antonio 2000, no pet.)(objection to deposition or affidavit, that is, statement in writing of a fact or facts signed by party making statement, sworn to before officer authorized to administer oaths, and officially certified to by officer under his seal of office, on basis that statement does not establish foundation for statement is purely formal defect), citing Leggat, 904 S.W.2d at 645-46. Because Houle failed to object to the purported formal defects and secure a ruling from the trial court in order to preserve error, he may not raise these complaints for the first time on appeal. Tex.R.Civ.P. 166a(f); see Seim, 551 S.W.3d at 166, citing Well Sols., Inc., 32 S.W.3d at 317.

Although the Texas Supreme Court has recognized that an implicit ruling may be sufficient to preserve an issue for appellate review, it has clarified that the trial court’s ruling must be clearly implied by the record. See Seim, 551 S.W.3d at 166, citing In the Interest of Z.L.T., J.K.H.T., and Z.N.T., 124 S.W.3d 163, 165 (Tex. 2003). In Seim, the Court acknowledged the correct reasoning of the San Antonio Court [*13] of Appeals in Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.–San Antonio 2000, no pet.) when that court declared: “[R]ulings on a motion for summary judgment and objections to summary judgment evidence are not alternatives; nor are they concomitants. Neither implies a ruling–or any particular ruling–on the other. In short, 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.” See Seim, 551 S.W.3d at 165.

We agree that a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment. See Seim, 551 S.W.3d at 166, citing Well Sols., Inc., 32 S.W.3d at 317. Moreover, that the trial court’s judgment in this case includes a Mother Hubbard clause stating that “[a]ll other relief not expressly granted is denied[,]” does not constitute a showing that the trial court ruled on Houle’s objections to Capital One’s summary judgment evidence. See Lissiak v. SW Loan OO, L.P., 499 S.W.3d 481, 488 (Tex.App.–Tyler 2016, no pet.). We conclude the trial court did not implicitly rule on Houle’s objections to Capital One’s summary-judgment evidence. See Seim, 551 S.W.3d at 166. As these complaints have not been preserved, they are waived. Tex.R.App.P. 33.1.” Houle v. Capital One Bank United States, No. 08-16-00234-CV, 2018 Tex. App. LEXIS 7942, at *12-13 (App.—El Paso Sep. 28, 2018)

Some complaints may be raised for the first time on appeal–like a defect of substance in an affidavit, to wit, the failure to demonstrate lack of personal knowledge, and a juvenile’s complaint that he was not competent to stand trial on his delinquency trial:

Affidavit: “Houle contends on appeal as he did in the trial court that Trittipoe failed to demonstrate adequate personal knowledge underlying her testimony for proving up the attached Capital One business records. We have previously held that a lack of personal knowledge, reflected in the affiant’s testimony itself and not just as the lack of a formal recitation, is a defect of substance that may be raised for the first time on appeal.” Houle v. Capital One Bank United States, No. 08-16-00234-CV, 2018 Tex. App. LEXIS 7942, at *14 (App.—El Paso Sep. 28, 2018)

Juvenile: “Thus, both the Court of Criminal Appeals and the Legislature have recognized that, in a criminal proceeding, the procedural safeguards necessary to guard the defendant’s right not to be tried when she is incompetent to stand trial must include a requirement that the trial court, on its own motion, make an inquiry into the defendant’s competency to stand trial when sufficient evidence comes to its attention. Because the failure to observe adequate procedures to protect this right deprives the defendant  of her due process right to a fair trial, we find that a complaint asserting the failure of a trial court on its own motion to make inquiry into the defendant’s competency to stand trial is included among the waivable-only rights that may be asserted for the first time on appeal. See Pate v. Robinson, 383 U.S. 375, 384, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). Therefore, we find that H.C. did not have to preserve her complaint in the juvenile court.” In re H.C., No. 06-18-00006-CV, 2018 Tex. App. LEXIS 8008, at *16-17 (App.—Texarkana Oct. 3, 2018)

To preserve your complaint, you must comply with other pertinent rules:

Findings of Fact (Family Law): “Janice additionally complains that the trial court’s findings of fact do not address her other two claims for reimbursement, but she did not request that the court make additional findings on these reimbursement claims. A trial court must issue written findings of fact if a party requests them. Tex.R.Civ.P. 296. In a suit for dissolution of marriage, the trial court’s findings of fact and conclusions of law shall include, in addition to any other findings or conclusions required or authorized by law, the characterization and value of all assets, liabilities, claims, and offsets [*15] on which disputed evidence has been presented. Tex.Fam.Code Ann. § 6.711(a)(West Supp. 2017). A request for findings of fact and conclusions of law made under Section 6.711 must conform to the Rules of Civil Procedure. Tex.Fam.Code Ann. § 6.711(b)(West Supp. 2017). The findings of fact and conclusions of law required by Section 6.711 are in addition to any other findings or conclusions required or authorized by law. Tex.Fam.Code Ann. § 6.711(c)(West Supp. 2017). After a trial court files original findings of fact and conclusions of law, any party may timely request that the trial court make specified additional or amended findings or conclusions. Tex.R.Civ.P. 298. When a party fails to timely request additional findings of fact and conclusions of law, it is deemed to have waived the right to complain on appeal of the court’s failure to enter additional findings. . . . The trial court did not make any express findings on Janice’s claims for reimbursement of the community for the payment of ad valorem taxes on Billy’s separate real property and for payments on loans to acquire equipment, livestock, feed, and to build improvements for the Dairy. Janice did not request additional findings from the court. Consequently, Janice has waived her complaints related to these reimbursement claims.” Barton v. Barton, No. 08-15-00110-CV, 2018 Tex. App. LEXIS 7940, at *14-16 (App.—El Paso Sep. 28, 2018)

Lack of Capacity: “In his sixth issue, Hawkins asserts that he is not doing business as Genesis II Church of Health and Healing Chapter 119. This appears to be a challenge to the capacity in which Hawkins was sued, and such a challenge must be raised in a verified answer. See Tex. R. Civ. P. 93. Because Hawkins did not file a verified answer challenging capacity, this argument has not been preserved for our review. See Tex. R. App. P. 33.1(a).” Hawkins v. State, No. 14-17-00713-CV, 2018 Tex. App. LEXIS 7863, at *9 (App.—Houston [14th Dist.] Sep. 27, 2018)

Lack of Capacity: “CCI’s failure to raise capacity [*8] prior to the granting of the summary judgment is fatal because capacity is conceived as a procedural issue dealing with the procedural qualifications of a party to proceed with litigation, and capacity issues are waived if not timely raised. . . . Stated differently, because CCI did not raise its capacity contention prior to the trial court’s summary-judgment order resolving liability under Circle X’s contractual claims, CCI waived this contention. See Lovato, 171 S.W.3d at 849; Nootsie, 925 S.W.2d at 662; see also Tex. R. Civ. P. 93(1). . . .Here, CCI challenges Circle X’s ability to file suit under the deed, which, in light of the aforementioned case law, is most aptly a capacity challenge, not a standing challenge.” CCI Gulf Coast Upstream, LLC v. Circle X Camp Cooley, Ltd., No. 10-17-00325-CV, 2018 Tex. App. LEXIS 7828, at *7-9 (App.—Waco Sep. 26, 2018)

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

Damages: “The Martins argue that an attempt to recover lost profits is an attempt to recover on the contract; but because the trial court instructed the jury that Cottonwood could recover for the “value” of the work done, this was a recovery in quantum meruit for which Cottonwood could not recover in addition to lost profits. The Martins contend the Court should have used the phrase “work done” rather than the phrase “value of the work done.” But that was not the objection the Martins made to the trial court. There, the Martins only objected that there was “no evidence of the value of the work performed before this jury, and that assumes there was a value for work performed.” The Martins did not object that “value” corresponded to a recovery in quantum meruit which is inconsistent with a recovery for breach of contract. HN2 In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court. See In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. denied); Kershner v. State Bar of Tex., 879 S.W.2d 343, 347 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Because the objection asserted at trial does not comport with the complaint argued [*6] on appeal, the second portion of the Martins’ first issue that an improper measure of damages was submitted is not preserved. See Tex. R. App. P. 33.1(a).” Martin v. Cottonwood Creek Constr., LLC, No. 10-17-00005-CV, 2018 Tex. App. LEXIS 8050, at *5-6 (App.—Waco Oct. 3, 2018)

Legal and Factual Sufficiency: “We agree with Warner that JEM did not preserve its legal or factual sufficiency challenge of the DTPA elements included in issues one, two, and four. Despite JEM’s argument in its reply brief, we are unable to read its motion for new trial, where it complained that damages were manifestly too large for Warner and manifestly too small for JEM because of the jury’s “clerical” error, as bringing to the trial court’s attention a challenge to the sufficiency of the evidence supporting jury findings on the ultimate fact issues challenged by issues one, two, and four. Moreover, we have carefully reviewed the entire evidentiary record according to the above standards and find sufficient evidence permitted the jury to implicitly find in favor of Warner on the elements JEM challenges by those issues. JEM’s first, second, and fourth issues are overruled.” Jem Int’l, Inc. v. Warner Props., L.P., No. 07-17-00042-CV, 2018 Tex. App. LEXIS 7764, at *11 (App.—Amarillo Sep. 24, 2018)

All for now.  Hope this helps.  Y’all take care.

Yours,

Steve Hayes (shayes@stevehayeslaw.com)

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, September 22, 2018

September 22, 2018

Dear Folks:

I know, it’s been a few weeks.  The courts took a little bit of a breather following the rush to get cases out the door before the end of their fiscal years, so I thought I would wait until I had a few cases to post.  This entry will cover the following recent error preservation decisions:

Some complaints can be raised for the first time on appeal–like the failure to appoint counsel in a parental right termination case

Counsel

Your complaint must be timely

Dismissal

Your Complaint has to be specific enough

Jury Selection

Your complaint has to comply with the pertinent rules

Factual Sufficiency

You have to get a ruling on your complaint

Discovery
Limitations
Special Exceptions
Summary Judgment Evidence

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

Dismissal

And now, here are those decisions.

Some complaints can be raised for the first time on appeal–like the failure to appoint counsel in a parental right termination case:

Counsel: “In this case, J.B.J., Jr. was incarcerated throughout the case and was never informed of his right to be represented by an attorney or his right to a court-appointed attorney if he was found to be indigent. See Tex. Fam. Code Ann. §§ 107.013(a)(1), 262.201(c), 263.0061(a). Further, the final trial of this case began without J.B.J., Jr. present and a witness testified without being cross-examined by J.B.J., Jr. However, the Department argues that J.B.J., Jr. failed to preserve his complaints for appellate review. The Department contends that J.B.J., Jr. did not object before or during trial to the timing of the appointment of his trial counsel. We disagree.

In Marin v. State, the court of criminal appeals stated that a defendant [*6] must expressly relinquish certain rights and that these rights cannot be extinguished by inaction alone. See Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993). The right to the assistance of counsel is one of these rights. Id. at 279. Instead, the State must obtain the defendant’s permission by express waiver or the “intentional relinquishment or abandonment of a known right or privilege.” Id. This “waivable right” is never deemed to have been waived unless the defendant says so plainly, freely, and intelligently, sometimes in writing and always on the record. Id. at 280. Because some courts have recognized that in certain contexts termination suits are quasi-criminal, we determine that the right of assistance of counsel cannot be waived. In the Interest of B.L.D., 56 S.W.3d 203, 211-12 (Tex. App.—Waco 2001) (rev’d on other grounds, 113 S.W.3d 340, 342-43 (Tex. 2003)) (noting that statutory right to counsel in termination proceedings includes a due process right that counsel be effective); In re J.M.S., 43 S.W.3d 60, 63 n. 1 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (arguing by analogy in termination case that certain other family law proceedings are quasi-criminal in nature); In the Matter of the Marriage of Hill, 893 S.W.2d 753, 755-56 (Tex. App.—Amarillo 1995, writ denied) (likening the procedural issues in parental termination cases to those of criminal cases as both implicate constitutional concerns); see also Edwards v. Texas Dep’t of Protective and Regulatory Servs., 946 S.W.2d 130, 135 (Tex. App.—El Paso 1997, no writ) (quoting approvingly of Hill). Thus, J.B.J., Jr. did not waive his right to assistance of counsel.” In the Interest of A. J., No. 12-18-00074-CV, 2018 Tex. App. LEXIS 7452, at *5-6 (Tex. App.—Tyler Sep. 10, 2018)

Your complaint must be timely:

Dismissal: “Under the law as it existed on the date this suit was filed, a trial court did not lose jurisdiction over a termination proceeding when the dismissal date passed. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). Furthermore, a party who failed to “make a timely motion to dismiss” prior to the commencement of the trial waived the right to object to the trial court’s failure to dismiss the suit. Former Fam. § 263.402(b); see In re K.L.C., No. 11-14-00019-CV, 2014 Tex. App. LEXIS 7766, 2014 WL 3639124, at *6 (Tex. App.—Eastland July 17, 2014, pet. denied) (mem. op.). Although Section 263.402(b) was deleted by the legislature in the 2017 amendments to the Family Code, it remained in effect in this case. See In re T.W., No. 07-18-00056-CV, 2018 Tex. App. LEXIS 6309, 2018 WL 3799883, at *2 (Tex. App.—Amarillo Aug. 9, 2018, no pet. h.) (holding that parents were obligated to timely move for dismissal). Here, Appellant failed to file her motion to dismiss prior to the commencement of the trial. Therefore, under the law applicable to [*4] this case, she waived the right to object to any failure of the trial court to dismiss this suit based upon the mandatory dismissal date. See former Fam. § 263.402(b).” In the Interest of A.L.S., No. 11-18-00090-CV, 2018 Tex. App. LEXIS 7533, at *3-4 (Tex. App.—Eastland Sep. 13, 2018)

Your Complaint has to be specific enough:

Jury Selection: “To preserve error, a party must inform the trial court—either prior to or contemporaneously with the tendering of peremptory strikes—that it has used its peremptory strike against the venire member involved and that it has exhausted its remaining strikes. . . . The party must then identify to the trial court a specific objectionable venire member who will remain on the jury list because the party has no more strikes available. . . . Only when the trial court is made aware that an objectionable juror will be chosen is the trial court then able to determine if the party was in fact forced to take an objectionable juror. . . . Because Appellants’ counsel did not notify the trial court which specific objectionable venire member or members remained on the jury list, he has failed to preserve this complaint for our review.” Luo v. Levy, No. 02-17-00418-CV, 2018 Tex. App. LEXIS 7730, at *2-3 (Tex. App.—Fort Worth Sep. 20, 2018)

Your complaint has to comply with the pertinent rules:

Factual Sufficiency: “In her first, second, third, and fourth issues, J.T. contends that the evidence is factually insufficient to support the jury’s findings that her parental rights to Z.T., E.B., and P.B. should be terminated pursuant to subsections (D), (E), (N), and (O) of Texas Family Code Section 161.001(b)(1). A point in a motion for new trial is a prerequisite to a complaint of factual insufficiency of the evidence to support a jury finding. Tex. R. Civ. P. 324(b)(2);. . . . J.T. did not file a [*5] motion for new trial. Therefore, she has waived her complaint about the factual sufficiency of the evidence to support the jury’s findings.” In the Interest of Z.T., No. 12-18-00078-CV, 2018 Tex. App. LEXIS 7652, at *4-5 (App.—Tyler Sep. 19, 2018)

You have to get a ruling on your complaint:

Discovery: “Additionally, Reynolds complains in her appeal that Wellman and his attorney failed to respond to requests that she filed seeking discovery. Yet when Reynolds complained during the hearing that Wellman had failed to respond to her requests seeking discovery, the trial court told Reynolds that she had waited too long to bring any disputes over discovery to the court’s attention. Reynolds acknowledged that she had failed to complain about any discovery matters prior to the trial, and she then failed to secure a ruling on the merits of any of her pre-trial motions. We hold that the complaints that Reynolds advances in issue two were not properly preserved for our review on appeal. See Tex. R. App. P. 33.1.” Reynolds v. Wellman, No. 09-17-00459-CV, 2018 Tex. App. LEXIS 7714, at *3 (Tex. App.—Beaumont Sep. 20, 2018)

Limitations: “On appeal, Cavazos argues in part that the trial court erred if it granted summary judgment on these grounds because Stryker “fail[ed] to affirmatively plead a statute of limitations defense within all applicable deadlines.” We agree. Limitations is an affirmative defense which must be pleaded, or is waived. Tex. R. Civ. P. 94; Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 155 (Tex. 2015). Stryker concedes that it did not plead a limitations defense in its original answer, but it argues that the trial court granted it leave to file an amended answer to include that defense. The record contains a “Motion for Leave to Amend Answer” filed by Stryker but it does not contain an explicit ruling on that motion, and it does not reflect that [*27] an amended answer was ever actually filed. Accordingly, Stryker waived the defense.

The dissent argues that the limitations issue was tried by consent, and it suggests that Cavazos waived her appellate complaint regarding this defense because the record contains no written response by Cavazos to Stryker’s supplemental summary judgment motion. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991) (holding  in the summary judgment context that “[t]he party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal”). But trial by consent is intended to cover only the “exceptional” case in which it “clearly appears from the record as a whole that the parties tried the unpleaded issue”; it “should be applied with care” and “is not intended to establish a general rule of practice.” Guillory v. Boykins, 442 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.); In re A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.); Greene v. Young, 174 S.W.3d 291, 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Here, Stryker first attempted to raise the limitations defense in its motion for leave to amend its answer, filed on September 28, 2016, which was after the initial summary judgment hearing. At the November 8, 2016 hearing, Cavazos’s counsel specifically complained that Stryker “never indicated ever in any [*28] pleading, in any discovery request, in any request for disclosure that they were gonna assert” the limitations defense. This is not an “exceptional” situation warranting application of the trial-by-consent doctrine. See Guillory, 442 S.W.3d at 690; cf. Roark, 813 S.W.2d at 495 (“Because Roark failed to direct the trial court’s attention to the absence of the pleading in his written response or before the court rendered judgment, this complaint may not be raised on appeal.”).” Cavazos v. Stryker Sales Corp., No. 13-17-00247-CV, 2018 Tex. App. LEXIS 7228, at *26-28 (Tex. App.—Corpus Christi Aug. 31, 2018)

Special Exceptions: “Special exceptions are used to challenge a defective pleading. See Tex. R. Civ. P. 91. Failure to obtain a timely hearing and a ruling on special exceptions waives the exceptions and does not preserve them for appeal. McAllister v. Samuels, 857 S.W.2d 768, 773 (Tex. App.—Houston [14th Dist.] 1993, no writ) (appellants asserted [*13] that the trial court erred by “entering a final judgment without ruling on, or even considering,” their special exceptions; appellants waived error on this point because the record did not show that appellants obtained a hearing and a ruling on their special exceptions). The appellate record does not show that James requested a hearing on his special exceptions, or that a hearing was held or a ruling obtained. James did not preserve this issue for appeal.” Davis v. Angleton Indep. Sch. Dist., No. 14-17-00692-CV, 2018 Tex. App. LEXIS 7467, at *12-13 (App.—Houston [14th Dist.] Sep. 11, 2018)

Summary Judgment Evidence: “Next, Furmanite, Galbraith, and Southcross argue that we cannot consider Lisa’s supplemental affidavit in this appeal because they claim it is a “sham affidavit.”. . . . On appeal, Furmanite [*7] asserts that its sham affidavit objection “was implicitly sustained by the trial court.” Nothing in the record indicates the trial court ruled on Furmanite’s sham affidavit objection. “Absent a timely objection and a ruling from the trial court, the complaint that a summary-judgment affidavit is a sham is waived for purposes of appellate review.” In re T.A.D., No. 14-16-00717-CV, 2017 Tex. App. LEXIS 1864, 2017 WL 924550, at *5 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.). Furthermore, objected-to evidence is valid summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017). No such order appears in the record.” Martinez v. Furmanite Am. Inc., No. 04-17-00318-CV, 2018 Tex. App. LEXIS 7642, at *6-7 (Tex. App.—San Antonio Sep. 19, 2018)

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

Dismissal: “In her sixth issue, Stacey argues that the trial court erred by not giving her the opportunity to take discovery and by converting a non-evidentiary hearing into [*14] a pretrial evidentiary hearing without proper notice. As support for this issue, she similarly asserts that Richard’s motion to dismiss was limited to a challenge to her pleadings and, therefore, that she did not have notice that she would have to present evidence. Stacey, however, did she raise this argument with the trial court. See Tex. R. App. P. 33.1(a) . . . When the trial court advised Stacey that it was her “burden on the [Rule 91a] motion to dismiss, to establish what is required legally for proceeding on a bill of review” and then told her that he would hear from her as to evidence, Stacey stated to the trial court that she was not prepared to present evidence because she had been advised by an attorney that evidence was not considered with a Rule 91a motion. The trial court then further explained her burden to make a “prima facie showing” on the alternative ground. In response, Stacey requested a continuance “so that [she] could hire counsel for an evidentiary hearing,” but she did not raise the argument that she raises on appeal that Richard’s motion to dismiss was limited to a challenge on the pleadings. Thus, she has waived this issue for our review. See Tex. R. App. P. 33.1(a).” Hammer v. Hammer, No. 03-18-00028-CV, 2018 Tex. App. LEXIS 7574, at *13-15 (Tex. App.—Austin Sep. 18, 2018)

Then, there were the usual spate of cases in which the party failed to raise the complaint in the trial court at all.

I hope this helps.  Y’all take care.

Yours,

Steve Hayes

shayes@stevehayeslaw.com.  www.stevehayeslaw.com

 

Error Preservation in Texas Civil Cases, September 3, 2018

September 1, 2018

Dear All:

As usual, in this last week of their fiscal year, the courts of appeals handed down a ton of cases, including those involving error preservation. The cases included in this blog entry include:

A case which applies the Supreme Court’s recent holding that there must be some indication in the record that the trial court ruled on summary judgment objections

A case in which the court held that the complaint about ambiguity was not sufficiently specific to bring it to the trial court’s attention, and another where the complaining party did not tell the trial court why she was entitled to the discovery she sought.

A case holding that you have several opportunities to preserve a complaint that the pleadings do not support a damage award.

Cases involving issues you (or your opponent) can raise for the first time on appeal, relating to:

Affidavits
Notice
Summary Judgment

Several cases which point out that you must bring your complaint to the trial court’s attention and secure a ruling on it, including some related to:

Continuance
Discovery
Mandamus
Dissent
Evidence
Pleading

A case pointing out that you must preserve your complaint concerning the tolling of limitations by raising the complaint in the agency hearings

Cases confirming that your complaint must be sufficiently specific concerning:

Evidence
Jury Selection

A case confirming that your special appearance must comply with the pertinent rules

A case holding that, under some circumstances, you can thwart an argument that an issue was tried by consent if you object to the lack of pleading prior to the submission of the charge to the jury

Now for the cases

Here is a case which applies the Supreme Court’s recent holding that there must be some indication in the record that the trial court ruled on summary judgment objections–leaving us to wonder what, if anything, remains of the Supreme Court’s earlier holding that to preserve such objections one must get “an order sustaining the objection . . . reduced to writing, signed, and entered of record,’” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017):

Summary Judgment: “For there to be an implicit ruling on objections to summary judgment evidence, “there must be some indication that the trial court ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment.” Id.; see also Seim v. Allstate Tex. Lloyds, No. 17-0488, S.W.3d , 2018 Tex. LEXIS 648, 2018 WL 3189568, at *3-4 (Tex. June 29, 2018) (per curiam) (agreeing with intermediate courts holding that mere granting of summary judgment was not implicit ruling on objections to summary judgment evidence and stating that ruling may be implied if implication is “clear”). . . . The trial court did not issue a separate order ruling on the parties’ objections to the summary judgment evidence. Sooner Pipe submitted a proposed order granting its summary judgment motion that stated: “Pending before the Court in the above-captioned action is Plaintiff’s Motion for Summary Judgment. After considering the Motion, any responses thereto, the arguments of counsel, if any, the record, and the applicable law, the Court is of the opinion that Plaintiff’s Motion should be GRANTED.” In its final judgment, the trial court made handwritten additions to the proposed order. With the trial court’s additions, the order stated: “After considering the Motion, any responses thereto, all summary judgment evidence, the arguments of counsel, if any, the record, and the applicable law, the Court is of the opinion that Plaintiff’s Motion should be GRANTED.” (Emphasis added.) [*19] The trial court thus indicated that, in deciding the motion, it considered all of the summary judgment evidence presented. We therefore conclude that this statement constitutes an implicit overruling of the parties’ objections to the summary judgment evidence. See Ennis, Inc., 427 S.W.3d at 532 (stating that for there to be implicit overruling of objections to summary judgment evidence, there must be some indication trial court “ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment”). Because we hold that the trial court impliedly overruled the parties’ objections to the summary judgment evidence and considered all of the evidence presented to it in making its ultimate summary judgment ruling, we decline Fortitude’s suggestion to abate the appeal to allow the trial court the opportunity to memorialize its ruling on the objections.” Fortitude Energy, LLC v. Sooner Pipe LLC, No. 01-17-00501-CV, 2018 Tex. App. LEXIS 7169, at *18-19 (App.—Houston [1st Dist.] Aug. 30, 2018)

You have several opportunities to preserve a complaint that the pleadings do not support a damage award–including a motion to set aside judgment (and a brief to support the motion), a motion to stay judgment:

Pleadings: “Slaughter also complains in his third issue of the damages and injunctive relief awarded to Johnson. Slaughter asserts Johnson did not file any pleadings to support his requests for affirmative relief. Slaughter emphasizes that Johnson never filed a counterclaim against Johnson.

Johnson asserts Slaughter waived this issue by failing to raise it before the trial court. To preserve an issue for appellate review, a party must make its complaint known to the trial court by a timely request or objection that is specific enough for the trial court to be aware of the complaint and then receive a ruling from the trial court. Tex. R. App. P. 33.1. Having reviewed the record, we disagree and find Slaughter adequately preserved this issue for appeal.

Before the trial court, Slaughter asserted this argument on more than one [*19] occasion. In a motion to set aside the judgment, Slaughter argued, “Defendant’s Motion and Order claims damages which were never plead by him, [sic] and cannot become part of any judgment against the Plaintiff.” In an emergency motion to stay the judgment, Slaughter asserted “Defendant never sued and/or filed pleadings with the court for injunctive relief” and “The court signed an order . . . granting the Defendant injunctive relief.” Slaughter also filed a memorandum in support of his motion to set aside the judgment in which he cited rule 301 (judgment must conform to pleadings) and further expounded on the argument. We find Slaughter’s argument was properly raised before the trial court.” Slaughter v. Johnson, No. 14-17-00050-CV, 2018 Tex. App. LEXIS 6865, at *18-19 (App.—Houston [14th Dist.] Aug. 28, 2018)

Some issues can be raised for the first time on appeal–such as the conclusory nature of affidavit testimony or lack of notice of a default judgment hearing which appears on the face of the record:

Affidavit: “For the objections to the declarations, the absence of a ruling on Ngo’s objection that these declarations are conclusory does not waive the argument, because a party may challenge the substance of an opposing party’s summary-judgment evidence as conclusory for the first time on appeal. See Seim v. Allstate Tex. Lloyds, No. 17-0488, 2018 Tex. LEXIS 648, 2018 WL 3189568, at *4 (Tex. June 29, 2018) (per curiam). Conclusory declarations are not competent summary-judgment proof. See Tex R. Civ. P. 166a(f); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (affidavits consisting of conclusions do not raise genuine issue of material fact; facts must be stated [*8] with sufficient specificity to allow perjury to be assigned to false representations).” Lang Tran v. Quynh Ngo, No. 01-17-00138-CV, 2018 Tex. App. LEXIS 7188, at *7-8 (App.—Houston [1st Dist.] Aug. 30, 2018)

Notice: “In his second issue, Rodriguez claims the trial court erred in granting a post-answer default-judgment. Specifically, Rodriguez claims that his [*10] letters of March 2 sent to the trial court constituted proper answers, and as such, he was entitled to forty-five days’ notice under Rule 245 of the Texas Rules of Civil Procedure. He claims he received no notice and asserts that because the hearing was held less than two weeks after KF Logistics filed its motion for default judgment, notice could not have complied with Rule 245 even if it had been sent. . . . Marcus maintains that we do not even need to address the notice issue because Rodriguez did not raise the issue in a motion for new trial as required by Texas Rules of Civil Procedure 324(b)(1), and thus failed to preserve the issue for review. Rule 324 does indeed require that certain points be raised in a motion for new trial to preserve them for appellate review. Tex.R.Civ.P. 324. But Rule 324 is inapplicable here because raising the point in a motion for new trial is not required to preserve the issue in a nonjury trial. Howell v. Coca-Cola Bottling Co. of Lubbock, Inc., 599 S.W.2d 801, 802 (Tex. 1980). Thus, the issue returns to notice. The judgment rendered by the trial court [*13] makes no recitation regarding notice. Additionally, the hearing itself was held on July 8, less than two weeks after KF Logistics filed its motion for default judgment on June 26. This affirmatively demonstrates that less than forty-five days’ notice was provided to Rodriguez—if any notice was provided at all, which the record does not show. As noted above, a party who timely files an answer is entitled to notice pursuant to Rule 245. Lippmann, 826 S.W.2d at 138; In re R.K.P., 417 S.W.3d at 551. In a contested case, the forty-five days’ notice requirement is mandatory, and a trial court’s failure to comply with the notice requirements is a violation of fundamental due process. Blanco, 20 S.W.3d at 811; Custom-Crete, Inc., 82 S.W.3d at 659. The proper remedy when a party does not receive notice of the trial setting as required by Rule 245 is to set aside the default judgment because it is ineffectual. In re R.K.P., 417 S.W.3d at 551; Custom-Crete, Inc., 82 S.W.3d at 659. Accordingly, Rodriguez’s second issue is sustained.” Rodriguez v. Marcus, No. 08-15-00252-CV, 2018 Tex. App. LEXIS 7226, at *9 (App.—El Paso Aug. 30, 2018)

Summary Judgment: “In its second issue, Paull & Partners argues the trial court erred in granting summary judgment on the Berrys’ request for forfeiture of the principal and interest owed under the note. Although our conclusion that fact issues exist regarding whether the conveyance was a void pretended sale is a sufficient basis for reversing the summary judgment, the parties have fully briefed whether forfeiture is a proper remedy for a pretended sale. We therefore address that issue in the interest of judicial economy to provide guidance to the trial court on remand. . . .The Berrys first argue that Paull & Partners waived its second issue by failing to raise it in response to the motion for partial summary judgment. We disagree. As previously stated, the Berrys bore the burden of proving as a matter of law that no genuine issue [*23] of material fact exists and that they are entitled to judgment as a matter of law on their claims. Tex. R. Civ. P. 166a(c); Univ. MRI & Diagnostics, 497 S.W.3d at 659 n.2. A non-movant who fails to file a response to a motion for summary judgment may still challenge on appeal “the legal sufficiency of the grounds presented by the movant.” Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014). We conclude that Paull & Partners may argue for the first time on appeal that the Texas Constitution does not permit forfeiture as a remedy for a pretended sale because this argument challenges the legal sufficiency of the grounds presented in the motion for partial summary judgment. See id. (non-movant could raise issue of failure of acceptance of all material terms in an offer for first time on appeal because movant had burden of establishing acceptance to prove right to summary judgment).” Paull & Partners Invs., LLC v. Berry, No. 14-17-00519-CV, 2018 Tex. App. LEXIS 6861, at *22-23 (App.—Houston [14th Dist.] Aug. 28, 2018)

Several cases point out that you must bring your complaint to the trial court’s attention and secure a ruling on it, including one case where the lengthy dissent disagreed with the majority on whether the record was sufficient to preserve the complaint:

Continuance: “At the hearing, Miears also objected to McPherson’s late-filed summary judgment evidence. The trial court sustained Miears’s objection. Nevertheless, Miears asked the trial court to grant her motion for continuance to have time to rebut evidence the trial court expressly stated it had not seen and would not consider. The trial court proceeded with the hearing. N. 2 (n. 2 The record does not show the trial court expressly ruled on the motion for continuance, and Miears did not object to the trial court’s failure to rule. See Tex. R. App. P. 33.1(a); . . . .). . . . On appeal, Miears argues—without citing any supporting authority—that the trial court erred by proceeding with the hearing. Miears failed to preserve her claim of error, see Tex. R. App. P. 33.1(a) (error preservation), and presents nothing for appellate review.” Miears v. McPherson, No. 04-17-00514-CV, 2018 Tex. App. LEXIS 6972, at *14 (App.—San Antonio Aug. 29, 2018

Discovery: “In his third issue, Shugart complains that the trial court failed to enforce the discovery rules by not requiring the County to respond to his discovery requests. However, Shugart never secured a hearing or an order on his motions to compel. See Tex. R. App. P. 33.1(a). Even if Shugart had preserved this complaint on appeal, none of his discovery requests related to the issue of his ownership interest in the greenhouse, and consequently, resolution of this complaint would not affect our disposition of this appeal.” Shugart v. Thompson, No. 06-17-00119-CV, 2018 Tex. App. LEXIS 7018, at *10 n.12 (App.—Texarkana Aug. 30, 2018)

Mandamus: “We note, however, that there is no indication that these items [Disclosures and Medical Record and Billing Affidavits] were presented to the trial court in consideration of Relators’ motion to compel Abushaaban to submit to a physical examination. Relators did not include them as exhibits to their motion or otherwise identify the items as support for their motion. Relators’ counsel has certified to this Court that “[n]o exhibits were offered in evidence at the hearing, and no testimony was adduced in connection with the matter complained of.” And the trial court’s order denying Relators’ motion indicates that the trial court considered only the “Motion to Compel” and counsels’ [*6] arguments. The decision whether to grant Relators’ motion for a physical examination was within the trial court’s discretion. See In re Offshore Marine Contractors, Inc., 496 S.W.3d 796, 800 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding); In re Ten Hagen, 435 S.W.3d at 865-66. Considering the record that was before the trial court when it denied their motion, we conclude that Relators have not established that the trial court abused its discretion in denying their motion to compel a physical examination of Abushaaban. Notably, Relators did not assert in their trial court motion that “a battle of the experts” required the trial court to allow their requested examination of Abushaaban, nor did they present to the trial court any support for their “battle of the experts” assertion that they now advance in this Court. See In re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (explaining mandamus review limited to record actually before trial court for consideration).” In re Michael Angel Sanchez, No. 01-17-00399-CV, 2018 Tex. App. LEXIS 7282, at *6 (App.—Houston [1st Dist.] Aug. 31, 2018)

Dissent: “Finally, the majority observes, “The order denying Relators’ motion indicates that the trial court only considered the [*35] ‘Motion to Compel’ and heard counsels’ arguments,” and “Relators’ counsel has certified in the mandamus proceeding that ‘[n]o exhibits were offered in evidence at the hearing, and no testimony was adduced in connection with the matter complained of.'” Id. at 7.

The majority seizes upon these facts as if they were proof that the motion to compel was properly denied because insufficient evidence was presented to the trial court to satisfy the defendant Relators’ burden of proving that they had good cause to seek the plaintiff Abushaaban’s physical examination under Rule 204.1. But, in fact, the opposite is the case.

The majority’s description of the record in the trial court is misleading and incorrect on the law. The hearing below was a non-evidentiary hearing on a discovery motion. Contrary to the majority’s apparent understanding, parties are not required to obtain transcripts of non-evidentiary hearings on discovery matters to preserve error in the denial of the order; nor is oral testimony required at such a hearing. In re Ooida Risk Retention, 475 S.W.3d at 911; In re Pinnacle Eng’g, Inc., 405 S.W. 3d 835, 840 n.4 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding).

Texas Rule of Appellate Procedure 52.7 governs the record on mandamus from a ruling on a discovery order, including an order under Rule 204.1. It provides for mandamus from both evidentiary and non-evidentiary hearings on a motion [*36] to compel and recites the requirements for the mandamus record. It states that the “[r]elator must file with the petition. . . (1) a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding” and “(2) a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained of.” Tex. R. App. P. 52.7(a) (emphasis added). After the record is filed, any party may supplement the record from the trial court with “additional materials for inclusion in the record.” Tex. R.App. P. 52.7(b). All materials filed for inclusion in the record must be served on all parties. Tex. R. App. P. 52.7(c). Rule 52.8 then states that the appellate court will determine its ruling on the petition “from the petition and any response and reply.” Tex. R. App. P. 52.8(a).

Here, the trial court held a non-evidentiary hearing. Therefore, in their mandamus petition, Relators followed Rule 52.7(a)(2) and, “[i]n place of a transcript of relevant testimony and exhibits introduced in an underlying proceeding . . . provide[d] a ‘statement that no testimony was adduced in connection with the matter complained [*37] of'”— as the majority acknowledges. See Tex. R. Civ. P. 52.7(a)(2); Slip Op. at 7 (stating, “Relators’ counsel has certified in the mandamus proceeding that ‘[n]o exhibits were offered in evidence at the hearing, and no testimony was adduced in connection with the matter complained of.'”).

Rules 52.7, 52.8, and the applicable case law all direct the court of appeals to look to the mandamus record—i.e., “the petition and any response and reply”—to determine the proper outcome of a discovery motion. When there is no statement of facts from the hearing in the trial court or findings of fact or conclusions of law by that court and when the trial court heard no evidence and, instead, based its decision on the papers filed and the argument of counsel, that is the record to which the Court of Appeals must look. See Tex. R.App. P. 52.7, 52.8; Otis Elevator Co. v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993) (applying rule in discovery sanctions case); In re Pinnacle Eng’g, Inc., 405 S.W.3d at 840 n.4 (granting petition for mandamus filed on denial of motion to compel physical examination under Rule 204.1, holding that transcript of hearing was not necessary on non-evidentiary motion and citing Otis Elevator Co.); In re Ooida Risk Retention, 475 S.W.3d at 911 (upholding trial court’s order on mandamus, where trial court heard no evidence and there was no reporter’s record, in combined hearing on summary judgment and motion [*38] to appoint umpire and stating, “Parties are not required to obtain transcriptions of non-evidentiary hearings to preserve error”).

Both the trial court and the majority have failed to follow the law governing the proof of a Rule 204.1 motion to compel, have failed to credit evidence in support of the motion properly before the court, and have improperly denied the defendant Relators an order compelling the physical examination of a plaintiff seeking damages for his personal injuries alleged to have been caused by defendants so that Relators may combat assertions made in support of the plaintiff Abushaaban’s claims by his for medical experts.

The majority opinion and ruling conflict not only with the binding precedent of this Court, but also with binding precedent from the Texas Supreme Court on important points of law governing the proof of a motion to compel the physical examination of a plaintiff seeking damages for personal injury under Texas Rule of Civil Procedure 204.1. Both the majority’s ruling and its order refusing to stay proceedings in the trial court pending trial on the merits in less than two months are unjust. Therefore, I would conclude that the majority’s ruling also violates Rule of Civil Procedure 1, which requires the “just, fair, [*39] equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” See Tex. R. Civ. P. 1. Moreover, I would conclude that the majority opinion in this original proceeding satisfies the criteria for en banc review by this Court and for review by the Texas Supreme Court. See Tex. R. App. P. 41.2(c), 52.1, 56.1.” In re Michael Angel Sanchez, No. 01-17-00399-CV, 2018 Tex. App. LEXIS 7282, at *34-39 (App.—Houston [1st Dist.] Aug. 31, 2018) (Dissent, Keyes, J.)

Evidence: “During pre-trial, Njowo sought to introduce McKinney’s affidavit, which stated that McKinney told Welling that Njowo had loaned McKinney the $125,000. Welling objected that the affidavit was hearsay. Njowo responded that the affidavit was admissible as McKinney’s pro se answer to the suit. The trial court deferred ruling on the affidavit’s admissibility to allow Njowo to show that McKinney had filed the affidavit in answer to the suit. Njowo did not subsequently try to introduce the affidavit into evidence. Nor did he seek or secure [*13] a ruling on its admissibility. Njowo therefore has not preserved this issue for our review. See Tex. R. App. P. 33.1(a)(2)(A);” Njowo v. Welling, No. 01-17-00798-CV, 2018 Tex. App. LEXIS 6898, at *12-13 (App.—Houston [1st Dist.] Aug. 28, 2018)

Pleading: “We conclude that Huynh’s argument that Nguyen’s amended petition should not be considered because it was filed untimely, without leave of court and only two days before the special appearance hearing, is without merit. See Tex. R. Civ. P. 63. . . . .. Further, it does not appear that Huynh obtained a ruling from the trial court on his objection or objected to the trial court’s failure to rule. See Tex. R. App. P. 33.1(a).” Khai Huynh v. Hang Nguyen, No. 01-17-00935-CV, 2018 Tex. App. LEXIS 7175, at *1 n.2 (App.—Houston [1st Dist.] Aug. 30, 2018)

In a claim which originates in an administrative agency, you must preserve your complaint by raising the complaint in the agency hearings:

Limitations (tolling): “We do not have a transcript of the administrative proceedings, but the hearing officer recited the facts of those proceedings in the CCH Decision. Those recitations include the following: ‘Claimant argues in the alternative that carrier did not file an additional DWC-1 at the time of decedent’s death. Because of this, the time for claimant beneficiary to file a claim for death benefits is tolled. Carrier filed its DWC-1 on April 19, 2010 for the original injury. Carrier argues that this is unnecessary and not required by the Rules.’ These recitations indicate that Marta presented her tolling argument to the Division. Therefore, we conclude that the [*15] trial court had jurisdiction to consider the same issue.”Zurich Am. Ins. Co. v. Diaz, No. 14-17-00295-CV, 2018 Tex. App. LEXIS 7113, at *14-15 (App.—Houston [14th Dist.] Aug. 30, 2018)

Your complaint must be sufficiently specific:

Evidence: “In his second issue, Appellant challenges the court’s admission into evidence of “Petitioner’s Exhibits 6, 7 and 8,” which Appellant does not otherwise identify or describe.. . . At trial, Appellant did not object to any specific part of Exhibits 6, 7, or 8, but made only a blanket hearsay objection when they were offered: “And I would just object to hearsay included within those documents.” A blanket hearsay objection that fails to identify which parts of the document contain the hearsay is not sufficiently specific to preserve error with respect to those parts.” T. W. v. Tex. Dep’t of Family & Protective Servs., No. 03-18-00347-CV, 2018 Tex. App. LEXIS 6930, at *22-23 (App.—Austin Aug. 29, 2018)

Jury Selection: “We further note that ODIN, in a portion of its first issue on the appeal, asserts that the trial court erred in denying its request to “elicit testimony” from Juror No. 8 at the new-trial hearing. . . . Here, the record does not show that ODIN ever requested that the trial court allow it to present the testimony of Juror No. 8 on the issue of juror disqualification or her purported “Warrant for Arrest.” n. 8 (n. 8 ODIN directs this Court to a single sentence in its reply to Marathon’s response to its new-trial motion, stating “ODIN welcomes the opportunity for Marathon and ODIN to examine [Juror No. 8] on this limited topic at the Court’s convenience.” This is not sufficient to preserve, for appellate review, ODIN’s complaint that the trial court erred in not granting its new-trial motion because it prohibited ODIN from eliciting testimony from Juror No. 8). See Tex. R. App. P. 33.1(a);” ODIN Demolition & Asset Recovery, LLC v. Marathon Petroleum Co., LP, No. 01-17-00438-CV, 2018 Tex. App. LEXIS 7168, at *16-18 (App.—Houston [1st Dist.] Aug. 30, 2018)

You must comply with the pertinent rules:

Special Appearance: “Turning to the present case, Rodriguez [*9] sent not one but two letters—received by the district clerk on March 2—requesting the plea in intervention and third-party petition be dismissed. Both letters were signed by Rodriguez, displayed Rodriguez’s full name at the top, and listed his address as 459 Dini Rosi, El Paso, Texas. The letters also identified the parties and the case number. As in Lippmann, while Rodriguez’s letter was not in the standard form of an answer, it nonetheless met the requirements to qualify as a pro se answer. Lippmann, 826 S.W.2d at 138. At the very least, it constituted an appearance. See In re R.K.P., 417 S.W.3d 544, 551 (Tex.App.–El Paso 2013, no pet.)(holding that a signed letter from a pro se defendant stating she had been temporarily hospitalized and requesting a continuance—and also bearing the letterhead of the hospital and other contact information—at least constituted an appearance). Because Rodriguez made a general appearance before filing his special appearance, he failed to strictly comply with Rule 120a. Tex.R.Civ.P. 120a(1). An amendment adding a verification could not have cured this defect. Dawson-Austin, 968 S.W.2d at 322. Accordingly, Rodriguez’s first issue is overruled.” Rodriguez v. Marcus, No. 08-15-00252-CV, 2018 Tex. App. LEXIS 7226, at *8-9 (App.—El Paso Aug. 30, 2018)

Under some circumstances, you can thwart an argument that an issue was tried by consent if you object to the lack of pleading prior to the submission of the charge to the jury:

Pleading: “We cannot conclude that the defense which the trial court found meritorious was tried by consent. Prior to the close of evidence, Perez’s counsel specifically objected to trial by consent on the issue of Perez’s breach, noting that Taylor “has filed no claims” against his client, and the trial court overruled the objection. See id.; Tex. Indus., Inc. v. Vaughan, 919 S.W.2d 798, 803 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (“An objection, on the record, prior to the submission of the charge to the jury precludes trial by consent.”); cf. Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009) (“When both parties [*14] present evidence on an issue and the issue is developed during trial without objection, any defects in the pleadings are cured at trial, and the defects are waived.”). And although both Perez and Taylor testified that Perez failed to comply with the provisions of the agreement concerning insurance coverage, the record as whole does not clearly reflect that the issue of Perez’s breach was developed under circumstances indicating both parties understood the issue was present in the case. See Prize Energy Res., L.P., 345 S.W.3d at 567. Thus, these circumstances do not present an “exceptional” case warranting application of the trial by consent doctrine. See Guillory, 442 S.W.3d at 690; Greene, 174 S.W.3d at 301. Because Taylor did not plead his affirmative defense and it was not tried by consent, the trial court had no authority to find that his breach was excused by Perez’s prior material breach. See Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied) (“If an affirmative defense is not pleaded or tried by consent, it is waived, and the trial court has no authority to make a fact finding on that issue.”). We sustain Perez’s second issue.” Perez v. Bradford’s All Am., No. 13-17-00365-CV, 2018 Tex. App. LEXIS 6826, at *13-14 (App.—Corpus Christi Aug. 28, 2018)

And then there were more than a dozen cases holding that parties had not preserved error because they failed to raise their complaint in the trial court.

I hope this helps.  Y’all take good care.

Yours,

Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, August 25, 2018

August 25, 2018

Dear All:

The cases covered in this blog entry include:

A case in which the court held that the complaint was not sufficiently specific to bring it to the trial court’s attention, and another case where the complaining party did not tell the trial court why she was entitled to the discovery she sought

Ambiguity
Discovery

When the collective agreement governing the complaint made in the administrative process does not place the issue in the purview of the agency, and that issue may be first raised on the appeal to the trial court

Administrative Law

Your complaint on appeal must comport with the complaint raised in the trial court

Constitution

The record must reflect that you made your complaint in the trial court

Notice

Not often do courts of appeals analyze an error preservation challenge based on the specificity requirement of Rule 33.1. Here is a case in which the court held that the complaint was not sufficiently specific to bring it to the trial court’s attention, and another where the complaining party did not tell the trial court why she was entitled to the discovery she sought:

Ambiguity: “ We discern no contract formation challenge on this record, and we do not believe that we are within our power to address the effect of the ambiguities for two reasons. First, counsel never actually challenged the arbitration agreement on formation grounds in the trial court, and even under a liberal view of the record, counsel’s stray references to ambiguity in pleadings and oral argument at the hearing cannot be expanded to embrace a formation challenge that is cognizable on appeal.
i. Double Eagle’s Appellate Argument Does Not Comport with Its Argument in the Trial Court
. . . . we [*27] can only affirm the trial court’s judgment on a contract malformation ground if Double Eagle actually advanced a contract malformation ground in resisting arbitration in the trial court. Bray, 499 S.W.3d at 102 (affirmation of denial appropriate only on those grounds advanced in the trial court).

This dissent next maintains that even if the burden was on Double Eagle, this Court can entertain appellate argument related to contract malformation because Double Eagle “indirectly” alerted the trial court to the contract malformation issue by referring to the arbitration clause’s ambiguous and conflicting terms in its pleadings and at the motion to compel hearing. We do not find Double Eagle’s fleeting references to the ambiguity to be enough to place the issue of contract malformation before the trial court. . . . . None of these three defensive grounds asserted by Double Eagle in the trial court ever raised any formation issues; rather, they raised only affirmative defenses to enforcement (ground one and two) and interpretational issues (ground three). And while we look to the content of the argument in a pleading and not just the subject headings in deciding what issues were before the trial court, Double Eagle only mentioned the ambiguity in passing twice.

First, Double Eagle mentioned the ambiguity in the Background portion of factual recitals when it characterized the arbitration clause as being “ambiguous, onerous, and internally inconsistent[.]” The ambiguity is also mentioned in passing in Double Eagle’s response as part of an argument Double Eagle makes about Ridge having waived the right to arbitrate by substantially invoking the judicial process. . . .

Although Double Eagle mentioned the ambiguity, Double Eagle never once argued in its pleading that the ambiguity dealt with material terms or that the conflicting provisions otherwise invalidated the arbitration agreement. The reference to ambiguity occurred in a discussion of prejudice resulting from a purported waiver of the right to arbitrate, and even then, it appeared only in the context of a general complaint about how the arbitration rules would not provide Double Eagle with as much discovery as the Texas Rules of Civil Procedure. The gulf between this argument and the argument advanced on appeal regarding contract malformation based on a lack of a meeting of the minds is too wide to be bridged. The conceptual connection between the trial argument and the appellate argument is simply not there.

Counsel’s arguments during the Tipps hearing were also not enough to alert the trial court about any potential contract malformation issues. At the hearing, counsel for Double Eagle focused his argument heavily on the subjects of fraudulent inducement and [*31] unconscionability . . . .[But b]eyond this comment that the ambiguity was “interesting,” counsel never again returned to the issue of the arbitrator’s identity. Apart from using the poor draftsmanship of the arbitration agreement to make a brief rhetorical point to the trial court, the legal effect of these conflicting provisions was never discussed at all. Instead, Double Eagle focused its argument on the inherent unfairness of the transaction as a whole from a substantive and procedural standpoint, repeatedly arguing that the McDaniels transaction was a “scam” and a “bait and switch” that resulted in the transfer of an oil-and-gas interest for below-market value. While that argument does embrace fraud-based or unconscionability-type challenges to the arbitration agreement, it does not subsume a meeting-of-the-minds or formation argument.

. . . .

Legal argument is needed to determine whether this ambiguity is fatal to the entire contract or an interpretational bump in the road. Legal argument related to that distinction is what is lacking on this record. And the lack of legal argument in the trial court on that specific point ties our hands on appeal and prevents us from addressing the merits of this specific controversy. A complaint must be made with sufficient specificity before it is considered to be before the trial court. Tex.R.App.P. 33.1. We cannot conclude that Double Eagle raised the issue of contract malformation based on a meeting-of-the-minds failure with sufficient specificity so as to alert the trial court and opposing counsel that this was a basis for resisting arbitration. Consequently, we cannot entertain Double Eagle’s arguments related to formation problems on appeal because formation arguments were never advanced [*34] by Double Eagle in the trial court as a basis for denying a motion to compel arbitration. The appellate argument does not comport with the trial argument.” Ridge Nat. Res. v. Double Eagle, No. 08-17-00227-CV, 2018 Tex. App. LEXIS 6781, at *23-34 (App.—El Paso Aug. 24, 2018)

Discovery: “As to the sub-issue concerning discovery, Kelly has [*11] failed to preserve any error. First, as an appellant, Kelly has failed to bring before this court the record of any hearing before the trial court. Secondly, the only record reference cited in Kelly’s brief is a reference to a Motion to Reconsider Letter Ruling of July 5, 2016, wherein Kelly asked the trial court to reconsider its decision to delay “formal discovery” until after she was given the opportunity to replead and respond to the defendant’s motion to dismiss. No where does Kelly present any manner of offer of proof or bill of exceptions to enlighten the court as to just what discovery was reasonable and necessary.HN8 In an appeal from a discovery or evidentiary ruling, the appellant must preserve error by presenting a “timely request, objection, or motion,” setting forth the basis of the objection and obtaining a ruling from the trial court. Tex. R. App. P. 33.1. In the absence of such a request and ruling, Kelly has waived any argument pertaining to the denial of discovery.” O’Shea v. O’Shea, No. 07-16-00321-CV, 2018 Tex. App. LEXIS 6530, at *10-11 (App.—Amarillo Aug. 17, 2018)

Sometimes, courts have held that a party appealing from an administrative agency’s ruling has waived an issue by not raising it before the agency. But keep in mind that when the collective agreement governing the complaint made in the administrative process does not place the issue in the purview of the agency, and that issue may be first raised on the appeal to the trial court:

Administrative Law: “The Commissioner’s argument conflates concepts of waiver with concepts of jurisdiction. [*22] It may be the case that a party who fails to raise a particular complaint with a school district in accordance with an applicable local grievance policy will not have a record to present to the Commissioner that can support the complaint. While the party may be found to have waived that complaint or failed to preserve it for a subsequent appeal to the Commissioner, it does not follow that the Commissioner lacks jurisdiction over the appeal itself. In fact, in his brief in this appeal, the Commissioner cites Texas Rule of Appellate Procedure 33.1, which addresses preservation of error, as support for the proposition that Solis was required to “first present her claim to the school district (the initial decision-maker) before raising it on appeal to the Commissioner.” See Tex. R. App. P. 33.1 (preservation of appellate complaints). The Commissioner’s brief also states that Solis “failed to preserve her claim and the Commissioner properly dismissed it.” We will, therefore, consider whether Solis was required to seek relief from the board of trustees in order to preserve for Commissioner review her claim that she was aggrieved by MCISD’s decision to discontinue her employment despite it having failed to give her notice of proposed nonrenewal [*23] of a term contract governed by the TCNA. See HN14 Tex. Educ. Code § 21.206(c) (failure to give notice within time specified constitutes election to employ teacher in same professional capacity for following school year). . . . the Commissioner is correct that an employee filing a “complaint” must comply with the requirement that the complaint identify the policy, statutory provisions, or administrative [*25] regulations alleged to have been violated. However, DGBA (Local) specifically excludes from its purview certain categories of employee complaints that are to be submitted in accordance with other district policies, including “[c]omplaints concerning the proposed nonrenewal of a term contract issued under Chapter 21 of the Education Code, which shall be submitted in accordance with DFBB.” Thus, while Solis’s complaint that her reassignment from an executive director position to an assistant principal position was retaliation based was subject to the requirements in grievance policy DGBA (Local), her complaint regarding MCISD’s nonrenewal of what she alleged to be a term contract was not.” Tex. Comm’r of Educ. v. Solis, No. 03-18-00245-CV, 2018 Tex. App. LEXIS 6636, at *21-25 (App.—Austin Aug. 22, 2018)

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

Constitutional: “In his first issue, Cody argues that the trial court violated his rights under the U.S. Constitution by denying his request for a mistrial because he was not allowed to participate beyond the first morning of jury selection. . . . While Cody’s counsel moved for mistrial, at no time during the trial did counsel move for mistrial or object to proceeding with trial specifically on constitutional grounds nor was a constitutional argument raised in a motion for new trial. Accordingly, Cody has failed to preserve his alleged constitutional violation for appellate review.” In the Interest of P.L., No. 07-18-00157-CV, 2018 Tex. App. LEXIS 6770, at *4-8 (App.—Amarillo Aug. 23, 2018)

The record must reflect that you made your complaint in the trial court:

Notice: “A party who receives late notice of a hearing must preserve the complaint in the trial court by bringing the inadequate notice to the trial court’s attention by objecting to the hearing going forward or by moving for a continuance. See Low v. Henry, 221 S.W.3d 609, 618 (Tex. 2007). Elijah asserts on appeal that he “objected in open court” that he had not had adequate time to gather information, but we have no reporter’s record of the summary-judgment hearing, and the clerk’s record [*10] does not show that the Nelsons objected to the hearing or sought a continuance.” Nelson v. Go Green, LLC, No. 14-17-00571-CV, 2018 Tex. App. LEXIS 6709, at *9 (App.—Houston [14th Dist.] Aug. 23, 2018)

That’s all for now.  I hope this helps.

Yours,

Steve Hayes

shayes@stevehayeslaw.com;  www.stevehayeslaw.com