Error Preservation in Texas Civil Appeals, August 14, 2017

 

August 6, 2017

Dear All:

Here is a case which addressed the specificity requirement of Rule 33.1, and held that the objection was specific enough–a holding that we do not see very often:

  • Evidence: “[A]n objection must be specific enough to allow the trial court to understand the exact nature of the alleged error, and it must be interposed at such a point in the proceedings to allow the trial court to cure the alleged error, if any. Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex. App.—El Paso 1993, writ denied). Further, the objection at trial must comport with the argument made on appeal. Phippen v. Deere & Co., 965 S.W.2d 713, 716 (Tex. App.—Texarkana 1998, no writ). . . .In emphasizing [one] particular segment of the transcript, Quiroga overlooks several other objections made by Jones during trial, which objections specifically addressed the admission of the billing records and accompanying affidavits from the three medical providers and the lack of notice given to him in regard to that particular evidence. For instance, following a discussion between the parties and the trial court relating to the admission of the records, Jones stated, “I will object to this in particular but — it’s just a photocopy. I would object to all three. I haven’t seen any of the three before. I also object to this one as a photocopy, one for 4600 some odd dollars.” Shortly afterwards, the trial court denied Jones’ objection to the evidence and admitted the medical bills and accompanying affidavits from all three of the providers. Therefore, Jones specifically objected at trial to the admission of the complained-of evidence due to Quiroga’s failure to provide him with the billing records and [*5] accompanying affidavits before trial. On appeal, Jones contends that Quiroga failed to comply with the notice requirements found in Section 18.001 of the Texas Civil Practice and Remedies Code. Despite his failure to recite a specific rule on which his objection was made, Jones was nonetheless specific enough to allow the trial court to understand the exact nature of the alleged error. In addition, Jones’ objection was interposed at a point during the proceedings that allowed the trial court to rule on the substance of the error, which it did. Jones’ objection at trial was aligned with the very purpose of Section 18.001’s notice requirement. He therefore has preserved this issue on appeal.” Jones v. Quiroga, No. 06-17-00016-CV, 2017 Tex. App. LEXIS 7260, at *4-5 (App.—Texarkana Aug. 3, 2017)

Here are a couple of cases in which courts held that a defendant did not waive its venue complaint:

  • Venue: “Finally, the plaintiffs contend that we should deny mandamus relief because Lowe’s “did not seek the appropriate procedural remedy that was available from the Starr County Court.” According to the plaintiffs, Lowe’s “chose not to exercise its adequate legal remedy in Starr County—a motion to vacate.” The plaintiffs assert that Lowe’s should have filed a motion for the Starr County court to vacate its venue ruling and transfer the case to Cameron County. We disagree. After the plaintiffs nonsuited the Starr County suit and filed suit in Hidalgo County, Lowe’s immediately pursued a motion to transfer or dismiss in that court. Under these circumstances, we reject the contention that Lowe’s should be denied mandamus relief because [*28] it should have filed a motion to vacate in the Starr County case. The plaintiffs have not offered any authority that a motion to vacate was Lowe’s sole alternative remedy under these facts, and we decline to engraft such a requirement in this situation. We conclude that Lowe’s sufficiently preserved error. See generally Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014) (discussing preservation of error under the appellate rules); see also Tex. R. App. P. 33.1. Moreover, counsel for Lowe’s had contacted the plaintiffs’ counsel to see if they would agree to transfer the case to Cameron County or instead, force Lowe’s to go ahead with its sanctions motion. Instead, the plaintiffs nonsuited and refiled in Hidalgo County, thereby effectively preventing Lowe’s from pursuing any action in the Starr County court. In other words, as a pragmatic matter, there was no live cause of action pending in Starr County because the plaintiffs had already nonsuited that cause of action.” In re Lowe’s Home Ctrs., L.L.C., No. 13-16-00493-CV, 2017 Tex. App. LEXIS 7106, at *27-28 (App.—Corpus Christi July 28, 2017)
  • Venue: “Here, Brown asserts Ken-Do waived its objection to venue based entirely on an eight-month delay between the date Ken-Do filed its motion to transfer and the date of the hearing on the motion. The date of the hearing does not, however, show when Ken-Do requested its motion be set. See Bristol v. Placid Oil Co., 74 S.W.3d 156 (Tex. App.–Amarillo 2002, no pet.) (date of hearing on motion to transfer does not show movant delayed in requesting [*4] the hearing); see also Tex. R. Civ. P. 87 (“Except on leave of court each party is entitled to at least 45 days notice of a hearing on the motion to transfer.”) Moreover, the record does not show that Ken-Do committed any acts indicating it did not intend to pursue the motion or that were otherwise inconsistent with its position in the motion. . . . We conclude the record fails to show Ken-Do waived its objection to venue.” Ken-Do Contracting, L.P. v. F.A. Brown’s Constr., L.L.C., No. 05-16-00373-CV, 2017 Tex. App. LEXIS 7434, at *3-4 (App.—Dallas Aug. 7, 2017)

With all due respect, here is one I think the court got wrong, based on the recent Supreme Court holdings in United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 WL 2839842, 2017 Tex. LEXIS 652, at *37 (June 30, 2017); BP Am. Prod. Co. v. Red Deer Res., LLC, No. 15-0569, 2017 WL 1553112 2017 Tex. LEXIS 410, at *31 (Tex. Apr. 28, 2017); USAA Tex. Lloyds Co. v. Menchaca, No. 14-0721, 2017 Tex. LEXIS 361, at *6 n.8 (Tex. Apr. 7, 2017).  I would encourage you to read those cases, about when and how one may preserve a complaint as to an immaterial jury question, if you’ve not had the opportunity to do so.:

  • Jury Charge: “A trial court may disregard a jury finding if it is immaterial. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). A jury finding is immaterial if the question should not have been submitted, or if it was properly submitted but has been rendered immaterial by other findings. Id.; City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 752 (Tex. App.—Fort Worth 2008, pet. dism’d) (citing Se. Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999)). A question that calls for a finding beyond the province of the jury, such as a question of law, may be deemed immaterial. Spencer Eagle, 876 S.W.2d at 157; City of The Colony, 272 S.W.3d at 752. Here, Musallam contends the jury’s finding on Question No. 1 was immaterial because it asked the jury to make a finding on a question of law—whether the June 18, 2013 agreement was an enforceable contract. Musallam was required to preserve this complaint below. See C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 784-86 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (applying preservation rules to complaint that trial court erred by submitting question of law to the jury); see also Lakota Energy Ltd. P’ship v. Merit Mgmt. Partners I, L.P., No. 02-13-00057-CV, 2016 Tex. App. LEXIS 12378, 2016 WL 6803181, at *4-5 (Tex. App.—Fort Worth Nov. 17, 2016, pet. filed) (mem. op.) (same). To preserve his charge complaint, Musallam had to timely and plainly make the trial court aware of the complaint and obtain a ruling. See Tex. R. Civ. P. 272-274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43-44 (Tex. 2007); State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (op. on reh’g). [*13] The record shows that Musallam did not object to the submission of Question No. 1 to the jury. Indeed, the record shows that during the charge conference, Musallam insisted that the submission of Question No. 1 was necessary. Although Musallam did not object to submitting Question No. 1, Ali did, arguing that question should not have been submitted to the jury because as a matter of law, the June 18, 2013 agreement was a valid, binding contract. In response, Musallam’s counsel argued that it was necessary to submit Question No. 1 to the jury because the evidence raised an issue of fact as to the question of contract formation—namely, whether his and Ali’s reaching an agreement as to the price of Fanci Candy’s assets prior to closing was a material term of the agreement. Thus, the record is unmistakable that Musallam acquiesced to submitting the issue of contract formation to the jury. It was not until his post-verdict motions—that is, it was not until after that issue was submitted to the jury and the jury found against him—that Musallam first objected that Question No. 1 asked the jury to decide a question of law. This was too late to preserve error. See C.M. Asfahl Agency, 135 S.W.3d at 786 (holding that post-verdict [*14] motion to disregard jury finding on question of law submitted in the jury charge was insufficient to preserve error where complaining party failed to object to submission of the question at issue); see also Lakota Energy, 2016 Tex. App. LEXIS 12378, 2016 WL 6803181, at *4-5 (holding similarly). To preserve error in the submission of Question No. 1, Musallam was required to timely and plainly make the trial court aware of his complaint and obtain a ruling, and by failing to do so, he waived any error in its submission. See Tex. R. Civ. P. 272-274; Ledesma, 242 S.W.3d at 43-44; Payne, 838 S.W.2d at 241. It follows that he waived any complaint predicated upon the allegedly erroneous submission of Question No. 1, including the complaint that the trial court erred by denying his motion to disregard the jury’s finding on Question No. 1, as well as the complaint that the trial court erred by entering judgment consistent with the jury’s affirmative finding on Question No. 1.” Musallam v. Ali, No. 02-16-00282-CV, 2017 Tex. App. LEXIS 7359, at *12-14 (App.—Fort Worth Aug. 3, 2017)

You have to assert your complaint in a timely fashion:

  • Evidence: “Thus, even assuming the rules of evidence applied to D.S.’s section-54.02(j) waiver and transfer hearing and the trial court erred by admitting the testimony that D.S. objected to, any such error was harmless because Corporal Banes subsequently provided the very same testimony without objection. Tex. R. App. P. 44.1; see Bay Area, 239 S.W.3d at 235-36 (Tex. 2007) (holding that appellant failed to preserve complaint that trial court erred in admitting testimony over his objection because the same evidence was later admitted without objection); see also H.Y., 512 S.W.3d at 473-75 (holding that any error in admission of objected-to evidence in juvenile transfer proceeding was harmless because virtually all of the complained-of evidence was contained in a probation report, which was admitted without objection). We overrule D.S.’s second issue.” In re D.S., No. 02-17-00050-CV, 2017 Tex. App. LEXIS 7067, at *16 (App.—Fort Worth July 27, 2017)
  • Inability to Pay: “Husband’s seventh issue complains that the trial court allowed Wife to proceed without paying court fees after the court sustained the district clerk’s challenge to Wife’s affidavit of inability to pay. We overrule this issue because husband received a new trial on that basis but allowed the new trial to proceed without further objection and therefore waived any subsequent complaint in this regard. . . .Husband, however, identifies only one time when he raised his complaint in the trial court—his July 23, 2013 new trial motion attacking the July 10, 2013 SAPCR judgment. The trial court ultimately granted that motion. Thus, when Husband raised this complaint in the trial court, he received all the relief he requested. Further, because he did not request any other relief, we conclude that Husband did not preserve error in the trial court. See Tex. R. App. P. 33.1(a).” In the Interest of B.T.G., No. 05-16-00370-CV, 2017 Tex. App. LEXIS 7503, at *16-17 (App.—Dallas Aug. 8, 2017)

You have to comply with other rules:

  • Capacity: “In their first issue, the Kaptchinskies contend that Huffman lacked legal capacity to pursue the breach-of-contract claim because “no legal authority for Huffman to act on behalf of her father’s estate was shown.” Although the Kaptchinskies correctly characterize “capacity” as a party’s legal authority to sue or be sued, capacity is not, as they contend, a jurisdictional issue. . . . Indeed, if a party’s lack of capacity is not raised in a verified pleading, the complaint is waived. See TEX. R. CIV. P. 93; . . . . Because the Kaptchinskies failed to raise Huffman’s alleged lack of capacity in a verified pleading, the issue is waived.” Kaptchinskie v. Estate of Kirchner, No. 14-15-01080-CV, 2017 Tex. App. LEXIS 7012, at *3 (App.—Houston [14th Dist.] July 27, 2017)
  • Findings and Conclusions: “By his fifth issue, appellant contends that the trial court erred when it failed to issue findings of fact and conclusions of law. See Tex. R. Civ. P. 296. However, appellant failed to file notice of past due findings of fact and conclusions of law as required by Texas Rule of Civil Procedure 297. See Tex. R. Civ. P. 297. Accordingly, appellant has waived this issue.” Redd v. Redd, No. 13-15-00467-CV, 2017 Tex. App. LEXIS 7375, at *8 (App.—Corpus Christi Aug. 3, 2017)
  • Parties: “In a related argument, the Kaptchinskies argue that there was a defect of parties because although their contract was with both Charles and Betty Kirchner, the breach-of-contract claim was asserted only by Charles’s estate—or more accurately, by Huffman, in her capacity as the estate’s administratrix. This argument, too, has been waived. An objection to a defect of parties must be raised before the case is called for trial. See TEX. R. CIV. P. 37. Because the Kaptchinskies first asserted that there was a defect of parties after the case was called for trial, we do not address this argument.” Kaptchinskie v. Estate of Kirchner, No. 14-15-01080-CV, 2017 Tex. App. LEXIS 7012, at *5 (App.—Houston [14th Dist.] July 27, 2017)
  • Warnings: “No reporter’s record was made of the hearings at issue—the April 6, 2016 status hearing or the August 10, 2016 permanency hearing. Mother points to [*13] nowhere in the appellate record where she objected in the trial court to the absence of the records of the hearings or the alleged failure of the trial court to give the statutory warnings. She therefore did not preserve a complaint about the absence of the records or the trial court’s alleged failure to provide the statutory warnings. See Tex. R. App. P. 13.1. . . . Mother does not cite any cases applying fundamental error to support her contention that the trial court’s alleged failure to orally recite the statutory warnings is fundamental error. See Tex. R. App. P. 38.1(i). Based on the law cited above, we decline to extend the doctrine to this case. ” In the Interest M.R., No. 02-17-00071-CV, 2017 Tex. App. LEXIS 7608, at *12-13 (App.—Fort Worth Aug. 10, 2017)

Because I piddled around and did not get this timely posted, it has three weeks worth of holdings in it.  I’ll not include all the ones which merely reaffirmed that you don’t preserve error if you do not raise your complaint in the trial court.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

Error Preservation in Texas Civil Cases, July 22, 2017

July 22, 2017

Dear All:

Here is a cautionary tale about seeking attorney’s fees after the trial court sustains your client’s special appearance–and this cautionary tale is especially noteworthy because the motion for fees expressly said it was made “subject to” the special appearance:

  • Special Appearance: “Larrabee contends that its request for attorneys’ fees did not constitute a general appearance because it was made “subject to” Larrabee’s special appearance. The use or non-use of the words “subject to” does not magically transform appearances into or out of compliance with rule 120a.. . . . We hold that by filing a motion requesting an award of $33,925 in attorneys’ fees under the UDJA [even though that motion said it was filed “subject to” the special appearance], by obtaining a hearing on the motion, and by appearing in court and arguing the merits of the motion, Larrabee invoked the judgment of the trial court on an issue other than personal jurisdiction, recognized that a declaratory-judgment action had been properly pending against it, and sought affirmative relief from the trial court—all of which constituted a general appearance in the trial court made after the claims against Larrabee had been dismissed. Consequently, Larrabee made a general appearance, voluntarily submitted itself to the jurisdiction of the trial court, and waived its individual liberty interest (protected by the Due Process Clause) in avoiding the burdens of litigating in a distant or inconvenient forum.” Composite Cooling Sols., L.P. v. Larrabee Air Conditioning, Inc., No. 02-17-00006-CV, 2017 Tex. App. LEXIS 6460, at *15 (Tex. App.—Fort Worth July 13, 2017)

To preserve error, you have to comply with the pertinent rules (even on those cases where the court of appeals does not cite the pertinent rule):

  • Arbitration: “In its briefing, the City argues that if this Court were to find that the arbitration award was proper, then the damages must be reduced pursuant to section 271.153(a)(1) of the local government code. Section 171.091 of the civil practice and remedies code contains a provision for modifying an award and specifies the grounds upon which a modification may be ordered. See Tex. Civ. Prac. & Rem. Code Ann. § 171.091 (West, Westlaw through Ch. 49, 2017 R.S.). The City did not file a motion to modify at the trial court, and therefore, such a request is not properly [*16] before this Court for our review. See Tex. R. App. P. 33.1(a)(1).” IOC Co., LLC v. City of Edinburg, No. 13-16-00117-CV, 2017 Tex. App. LEXIS 6804, at *15-16 (App.—Corpus Christi July 20, 2017)
  • Evidence: “We turn to Mother’s arguments that the trial court erred by preventing Mother from questioning witnesses, testifying as to her fitness as a parent, and calling additional witnesses to testify as to her fitness as a parent. An appellate court does not reach the question of whether evidence was erroneously excluded unless the complaint has first been preserved for review. . . . To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure [*22] an adverse ruling from the trial court. Id. at 347. The reviewing court may be able to discern from the record the nature of the evidence and propriety of the trial court’s ruling, but without an offer of proof or bill of exception, we can never determine whether exclusion of the evidence was harmful. Id. Mother did not make any offer of proof before the trial court and did not file a formal bill of exception, and thus failed to preserve this issue for appeal.” J.R.W., No. 05-15-01479-CV, 2017 Tex. App. LEXIS 6831, at *21-22 (App.—Dallas July 20, 2017)
  • Evidence: “In her fifth issue, A.M. maintains the trial court erred by refusing to allow her to “cross-examine [J.P.] on the issue of [J.P.] abusing the judicial process and also failing to provide medical insurance for the child.” A.M. further contends the trial court erred by “refusing to hear evidence regarding [J.P.’s] history of domestic violence.” To preserve error in the exclusion of evidence, a party must (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which the evidence is offered and give the trial court reasons why the evidence [*21] is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record of the evidence the party desires admitted. . . . see also Tex. R. App. P. 33.1(a)(1)(A). Thus, to challenge the exclusion of evidence by the trial court on appeal, the complaining party must preserve the evidence in the record. See Tex. R. Evid. 103(a), (b). Here, the issue of whether the trial court correctly ruled on the admissibility of evidence is not properly before us because A.M. did not make an offer of proof describing the evidence she would have sought to introduce had the trial court not allegedly prevented her from presenting such evidence at trial. The substance of this evidence is not apparent from the context, as the testimony is conflicting. Therefore A.M. did not preserve the issue for our review. . . .. “When no offer of proof is made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exception.” Indus. III v. Burns, No. 14-1300386, 2014 Tex. App. LEXIS 9447, 2014 WL 4202495, at *6 (Tex. App.—Houston [14th Dist.] Aug. 26, 2014, pet. denied) (mem. op.) . . . . Failure to demonstrate the substance of the excluded evidence results in waiver. . . . A.M.’s post-trial filings did not argue the requisite elements to present a formal bill of exceptions. [*22] See Tex. R. App. P. 33.2(c). In the absence of a bill of exceptions or offer of proof, this court has no basis for reviewing a contention that the trial court committed reversible error in excluding evidence.” In the Interest of J.R.P., No. 14-15-00912-CV, 2017 Tex. App. LEXIS 6296, at *20 (Tex. App.—Houston [14th Dist.] July 11, 2017)
  • Jury Charge: “Even though Khan argued in the motion for directed verdict that there was no evidence of the costs saved by WaterJet, he did not request a substantially correct instruction on the issue or object to the omission of such an instruction from the charge. See id. If Khan “believed that the jury charge presented an improper measure of damages . . ., [he] was required to timely object and make the trial court aware of [his] complaint in order to preserve error for appeal.” Equistar Chemicals, L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007); see Tex. R. Civ. P. 272; Tex. R. Civ. P. 274 (“A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.”). To the extent the second issue raises an error in the jury charge, the error is not preserved for appeal. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 278. Because Khan failed [*17] to preserve error regarding the measure of damages the jury was instructed to use, damages are measured by the question and instruction given.” Khan v. Chai Rd., Inc., No. 05-16-00346-CV, 2017 Tex. App. LEXIS 6543, at *16-17 (App.—Dallas July 17, 2017)
  • Legal and Factual Sufficiency: “Nothing in the record before us indicates that A.W. filed a motion for new trial. Therefore, A.W. has not [*5] preserved her factual-sufficiency challenges. Arguably, A.W. has preserved her legal-sufficiency challenges concerning subsections (D), (E), and (O), because she objected to the submission of those grounds to the jury at the charge conference. However, nothing in the record before us indicates that A.W. objected to the submission of subsection (M) or the best-interest question to the jury or that she ever filed a motion for instructed verdict, a motion for judgment notwithstanding the verdict, or a motion to disregard the jury’s answer to a vital fact issue. Therefore, we conclude that A.W. has not preserved her legal-sufficiency challenges to the jury’s findings concerning subsection (M) or the best-interest finding.” A. W. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00048-CV, 2017 Tex. App. LEXIS 6509, at *4-5 (Tex. App.—Austin July 14, 2017)
  • Texas Citizens Participation Act: “In this case, the TCPA “evidence” presented by the Abbotts includes, as previously noted, the numerous documents that they attached and incorporated into their petition, effectively comprising a petition of over 200 pages in length. These documents are potentially a fertile source of “clear and specific” evidence to meet the Abbotts’ burden—indeed, one cannot fathom evidence of an allegedly actionable written communication that could be more “clear and specific” than a copy of the communication itself. However, in neither the district court nor on appeal have the Abbotts undertaken to link particular facts reflected in the documents to each of the essential elements for which they must present a prima-facie case with respect to each claim. Instead, the Abbotts have merely recited what they view as the essential elements of each [*46] claim; cited en masse to pages of the record they deem relevant to some unspecified element or elements of that claim; but provided no argument, analysis, or explanation as to which record reference supports which elements or (perhaps more critically) why that evidence would satisfy the specific element under the governing law. This is akin to the summary-judgment non-movant who, while having the burden, merely points to a voluminous record, assures the court that a fact issue is in there somewhere, and leaves it to the court to figure out why or how—a practice long deemed insufficient to defeat summary judgment. And although the documentary evidence we have previously summarized would likely satisfy some elements of some claims (e.g., the defamatory nature of appellants’ statements accusing Bill of predatorily exercising mind control over Kristin), we cannot similarly conclude that each element of that or any other claim would necessarily be satisfied. Without more, we cannot conclude that the Abbotts have met their burden to “establish[] by clear and specific evidence a prima facie case for each essential element of [each] claim in question.” Consequently, [*47] the TCPA requires that these claims be dismissed.” Cavin v. Abbott, No. 03-16-00395-CV, 2017 Tex. App. LEXIS 6511, at *45-47 (Tex. App.—Austin July 14, 2017)

You have to get a ruling from the trial court:

  • Affidavit: “Appellees objected that some of the statements in Ladymon’s affidavit were “irrelevant, constitute[d] hearsay and violate[d] the best evidence rule.” However, appellees did not obtain a ruling on this objection. An objection that an affidavit contains hearsay is an objection to the form of the affidavit. . . . The failure to obtain a ruling from the trial court on an objection to the form of an affidavit waives the objection.” Blane Ladymon v. Colvin, No. 05-16-00776-CV, 2017 Tex. App. LEXIS 6849, at *11 (App.—Dallas July 21, 2017)
  • Judgment: “Blair next contends that McClinton fraudulently [*5] prevented Blair from raising jurisdictional challenges and defenses to the child-support order. To support this contention Blair points to McClinton’s proposed “Child Support Review Order,” presented in the Attorney General’s petition and later amended and incorporated as an exhibit to the trial court’s order. He contends that the proposed order falsely represents that Blair had waived his right to have an original child-support order on file and demonstrates extrinsic fraud. The record does not support Blair’s contention. Both Blair and his counsel were present at the trial court’s hearing to determine Blair’s child-support obligations; both Blair and his counsel signed the order and the exhibit that it incorporated. Blair had the opportunity to raise any challenge to the proposed order at that time and did not.” Blair v. McClinton, No. 01-16-00431-CV, 2017 Tex. App. LEXIS 6421, at *4-5 (Tex. App.—Houston [1st Dist.] July 13, 2017)
  • Special Appearance: “The Trustee had the burden to set its special appearance for a hearing and to secure a ruling, but the trial court did not rule on the special appearance until twenty months after the discharge order, on the date on which the trial court granted the Pollack Parties’ summary-judgment motion. By failing [*14] to get a ruling on the special appearance before the trial court discharged Penn Mutual and restrained the Trustee from instituting any action against Penn Mutual for the recovery of the ownership or surrender value of the Policy, the Trustee waived the special appearance and the challenge to the trial court’s exercising personal jurisdiction over the Trustee.” Kehoe v. Pollack, No. 14-16-00421-CV, 2017 Tex. App. LEXIS 6308, at *13-14 (Tex. App.—Houston [14th Dist.] July 11, 2017)
  • Summary Judgment: “In their second issue, the Plaintiffs contend that the trial court erred in failing to consider some of their pleadings and in refusing to admit some of the evidence they offered. We will address each of these pleadings and pieces of evidence in turn. First, the Plaintiffs complain that the trial court never ruled on their motion for summary judgment. However, nothing in the record before [*3] us indicates that the Plaintiffs ever attempted to have their motion set for a hearing. Therefore, we cannot conclude that the trial court committed reversible error in not ruling on the Plaintiffs’ motion for summary judgment.” Jamison v. Lake Travis Inn & RV Park, No. 03-16-00788-CV, 2017 Tex. App. LEXIS 6403, at *2-3 (Tex. App.—Austin July 13, 2017)

You have to raise your complaint in the trial court:

  • Affirmative Defense: “The contention that a party to a contract is excused from performance because of a prior material breach by the other contracting party is an affirmative defense that must be pleaded. See Tex. R. Civ. P. 94; . . . .If an affirmative defense is not pleaded or tried by consent, it is waived. . . . In his motion to disregard the jury’s finding that Johnnie breached the Agreement, Johnnie did not assert that he had pleaded this affirmative defense, nor did he assert that this defense had been tried by consent. Even under a liberal construction of Johnnie’s pleadings, Johnnie did not plead prior material breach or [*5] excuse in response to Kathalean’s contract claim. Therefore, Johnnie waived this defense unless it was tried by consent. . . . If issues not raised by the pleadings are tried by express or implied consent of the parties, these issues shall be treated as if they had been raised by the pleadings. See Tex. R. Civ. P. 67, 301; . . . .To determine whether the issue was tried by consent, we must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. . . . The jury was not asked to determine who committed the first material breach of the Agreement or when either party breached the Agreement. The record does not reflect that the issue of whether Kathalean materially breached the Agreement before Johnnie breached the Agreement was tried by consent. See id. Therefore, Johnnie waived this affirmative defense, and the trial court did not err in denying the motion to disregard the jury’s finding that Johnnie breached the Agreement.” In re Marriage of Moore, No. 14-15-00859-CV, 2017 Tex. App. LEXIS 6786, at *4-5 (App.—Houston [14th Dist.] July 20, 2017)
  • Argument: “Even if we treat as properly briefed Joyce’s argument that the trial court erred in limiting the time to twenty minutes per side, she did not preserve her argument in the trial court. Pro se litigants are held to the same standards as licensed attorneys, and they must comply with applicable rules of procedure. . . . Failure to object to time limits imposed by a trial court waives any error. . . . The record shows Joyce raised no objection to the time limitations in the trial court. Accordingly, she has failed to preserve this complaint for review.” McCray v. McCray, No. 05-15-01557-CV, 2017 Tex. App. LEXIS 6840, at *7 (Tex. App.—Dallas July 21, 2017)
  • Attorney’s Fees: “Finally, Compton also complains for the first time in her reply brief that the individual defendants failed to segregate their claimed attorney’s fees between fees associated with the assertion of professional immunity and those associated with defending the suit on any other grounds. Compton did not raise this argument in the trial court when the individual defendants’ request for attorney’s fees was heard, nor in her opening brief. Accordingly, we find that this argument has been waived, and is not properly before the court.” Compton v. Port Arthur Indep. Sch. Dist., No. 09-15-00321-CV, 2017 Tex. App. LEXIS 6717, at *27 (App.—Beaumont July 20, 2017
  • Consumer: “In its second issue, Comerica argues that Minchew was not a consumer under the DTPA. Comerica raises this issue for the first time on appeal and therefore the issue is waived. See Tex. R. App. P. 33.1.” Comerica Bank v. Minchew, No. 01-16-00736-CV, 2017 Tex. App. LEXIS 6420, at *12 n.2 (Tex. App.—Houston [1st Dist.] July 13, 2017)
  • Jury Charge: “The complaint that the submission of a broad-form liability question was erroneous because it included an invalid liability theory is one that must be preserved in the trial court. . . . To preserve such a complaint, a party must timely and specifically object to the broad-form submission. . . . Lesley did not object to the broad-form submission of the negligence-per-se liability question on the ground that it contained an invalid liability theory, and therefore his first issue is not preserved for our review. . . .In his second issue, Lesley again challenges the jury charge, arguing that the trial court erred by including an affirmative-defense instruction in its negligence-per-se liability jury question. We conclude that Lesley failed to preserve this complaint for our review. . . . A party objecting to a jury charge must point out distinctly the objectionable matter and the grounds of the objection. Tex. R. Civ. P. 272, 274;. . . see Tex. R. App. P. 33.1. To preserve error in a jury charge, the complaining [*8] party must timely and plainly make the trial court aware of the complaint and obtain a ruling. Tex. R. Civ. P. 272, 274;. . . see Tex. R. App. P. 33.1. The record reflects that Lesley did not object to the affirmative-defense instruction he complains of in his second issue. He thus failed to preserve this complaint for our review. See Tex. R. Civ. P. 272, 274; . . . Tex. R. App. P. 33.1. We overrule Lesley’s second issue.” Bell v. Gilfour, No. 02-16-00031-CV, 2017 Tex. App. LEXIS 6743, at *6-8 (App.—Fort Worth July 20, 2017)
  • Property Division: “Further, there is nothing in the record to show that any of Joyce’s issues were presented to and ruled upon by the trial court. By not raising her arguments in the trial court, Joyce has waived her arguments. Tex. R. App. P. 33.1(a)(1)(A);” McCray v. McCray, No. 05-15-01557-CV, 2017 Tex. App. LEXIS 6840, at *7 (Tex. App.—Dallas July 21, 2017)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

Error Preservation in Texas Civil Cases, July 10, 2017

July 10, 2017

Dear All:

In a 6 to 3 decision, with a dissent that vigorously challenged the majority’s work, the Supreme Court dealt with the treacherous shoals at the confluence of confusion and maddening, also known as the place where negligence and premises defects converge. The majority characterized United Scaffolding v. Levine as a “slip-and-fall case.”  The workman alleged he “slipped on a piece of plywood that had not been nailed down, causing him to fall up to his arms through a hole in the scaffold.” US, at *2.  The jury charge submitted a general negligence question.  The majority held the defendant could challenge on appeal the liability question in the jury charge from the second trial, even though the defendant had not challenged that question before the verdict (and had requested that question in the first trial).  While the Court issued three separate error preservation holdings (set forth below in their entirety, along with the dissent’s critique), this summary from the Court’s opinion gives you the thumbnail sketch:

  • Jury Charge: “Considering Levine’s pleadings, the nature of the case, the evidence presented at trial, and the jury charge in its entirety, we hold that Levine’s claim is properly characterized as one for premises liability. Levine’s failure to request or secure findings to support his premises liability claim, therefore, [*40] ‘cannot support a recovery’ in this instance. Olivo, 952 S.W.2d at 529. Additionally, USI was under no obligation to object to Levine’s submission of an improper theory of recovery, and USI preserved its improper-theory argument by raising it in a motion for judgment notwithstanding the verdict. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 279; Menchaca, S.W.3d at , 2017 Tex. LEXIS 361 & n.8.” United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 Tex. LEXIS 652, at *39-40 (June 30, 2017).

The Court also held that the defendant did not waive, or invite error, on its improper theory argument by requesting a general negligence submission in the first trial. Here are the majority’s three holdings.

  • Jury Charge: “Levne argues that even if his claim should have been submitted under a premises liability theory of recovery, USI either waived the argument because it did not object to the jury charge or invited the error by requesting a general-negligence submission in the first trial. We first address Levine’s argument that USI waived its submission argument by failing to object to the jury charge. A defendant has no obligation to complain about a plaintiff’s omission of an independent theory of recovery; rather, the burden to secure proper findings to support that theory of recovery is [*35] on the plaintiff, and a plaintiff who fails to satisfy that burden waives that claim. Tex. R. Civ. P. 279 (‘Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.’). ‘If an entire theory were omitted from the charge it would be waived; and [the defendant] would indeed have no duty to object.’ Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex. 1990) (citing Tex. R. Civ. P. 279; Strauss v. LaMark, 366 S.W.2d 555, 557 (Tex. 1963)); see also Olivo, 952 S.W.2d at 529-30 (instructing that ‘a simple negligence question, unaccompanied by the Corbin elements as instructions or definitions, cannot support a recovery in a premises defect case’ (citations omitted)).  We recognize, as USI points out, that a defendant must preserve error by objecting when an independent theory of recovery is submitted defectively. See Tex. R. Civ. P. 279. This includes when an element of that theory of recovery is omitted. See id. But when, as in this case, the wrong theory of recovery was submitted and the correct theory of recovery was omitted entirely, the defendant has no obligation to object. Were we to adopt Levine’s argument that a defendant bears the burden to object to a jury charge not supported by the plaintiff’s pleadings or the evidence adduced at trial, we would effectively [*36] force the defendant to forfeit a winning hand. Should the plaintiff fail to ensure that the trial court submits the appropriate theory of recovery to the jury, we see no reason to require the defendant to ask the trial court to fix an error that would, as here, ultimately result in a judgment in its favor.” United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 Tex. LEXIS 652, at *34-36 (June 30, 2017)

The Dissent vigorously disagreed with the foregoing:

  • “Levine argues that, even if his claim could sound only in premises liability, USI waived any complaint about the jury charge by failing to object to the submission of the ordinary-negligence question at trial. The Court recognizes that our rules require a defendant to object to a defective submission of a theory of recovery to preserve error, see Tex. R. Civ. P. 279, but holds that Rule 279 is irrelevant here because ‘the correct theory of recovery was omitted entirely.’ [*79] Ante at . I disagree. Although a premises-liability claim is independent from an ordinary-negligence claim, it is still rooted in negligence principles. We have held, and the Court specifically notes, see id. at , that a plaintiff may submit a premises-liability claim by submitting a question on control and ‘a broad-form negligence question,’ as long as ‘instructions that incorporate the . . . premises defect elements . . . accompany the questions.’ Olivo, 952 S.W.2d at 529. The jury charge here included a broad-form negligence question but lacked a question on control and instructions on the premises-liability elements. According to the Court’s own rule, this is merely a defective submission, not a complete omission. See ante at (‘[T]his case was submitted to the jury under only a general-negligence theory of recovery, without the elements of premises liability as instructions or definitions . . . .’ (emphasis added)) (citing Olivo, 952 S.W.2d at 529 (holding jury charge that asked ‘a single simple negligence question’ about defendant’s employee ‘omitted essential elements of a premises defect claim’) (emphasis added))). I agree with Levine that USI waived its complaint by failing to object to the omitted elements. See Tex. R. Civ. P. 279 (explaining [*80] when ‘omitted element or elements shall be deemed found by the court in such manner as to support the judgment’).” United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 Tex. LEXIS 652, at *78-80 (June 30, 2017, dissent)

The majority then discussed whether the defendant waived its complaint by requesting the general negligence in the first trial, holding it did not:

  • Jury Charge:  “Next, Levine argues that USI invited the charge error by requesting a general-negligence question in the first trial even though the same request was not made in the second trial, which gave rise to this appeal. Levine’s reliance on USI’s actions in the first trial is misplaced. We have acknowledged that a defendant may invite error and waive its argument on appeal when it persuades a trial court to adopt a jury charge that it later alleges supports an improper theory of recovery. See Del Lago, 307 S.W.3d at 775-76 (holding that the defendant waived its ground for reversal by objecting to submission of negligent-activity theory at trial and then alleging on appeal that the proper theory of recovery was negligent activity). But here, once the trial court ordered a new trial, USI could invite error only in the second trial. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) (“[W]hen the trial court grants a motion for new trial, the court essentially wipes the slate [*37] clean and starts over.”). The record reflects that USI did not invite error in the second trial.” United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 Tex. LEXIS 652, at *36-37 (June 30, 2017)

The Dissent disagreed with the foregoing, as well:

  • “And even if USI had not waived its complaint by failing to object, I agree with Levine that USI invited the trial court to err by proposing the ordinary-negligence question. Since the record reflects that the court in the second trial simply used the same question USI had proposed in the first trial, and it does not reflect that USI ever withdrew the question it had proposed in the very same case, USI invited the error of which it now complains. “Parties may not invite error by requesting an issue and then objecting to its submission.” Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (holding that defendant invited error when it “requested the very issues that it now seeks to avoid”); see Del Lago, 307 S.W.3d at 776 (“The error in [*81] not allowing Smith to pursue a separate negligent-activity claim, if any, occurred at Del Lago’s behest.”).  United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 Tex. LEXIS 652, at *80-81 (June 30, 2017)

The majority then held that the defendant preserved its complaint by raising the same in its motion for jnov.

  • Jury Charge: “Finally, we hold that USI preserved its submission argument by raising it in a motion for judgment notwithstanding the verdict. See Menchaca, S.W.3d at & n.8, 2017 Tex. LEXIS 361 (concluding that because the defendant’s argument was a purely legal issue, the defendant preserved error by asserting the argument in a post-verdict motion). USI cited Olivo in support of its request for a take-nothing judgment. This gave the trial court notice of USI’s complaint that the verdict was based on an immaterial theory of recovery that could not support Levine’s recovery on a premises liability claim. See Tex. R. App. P. 33.1; Torrington, 46 S.W.3d at 839-40; Olivo, 952 S.W.2d at 529.” United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 Tex. LEXIS 652, at *37 (June 30, 2017)

Moving on to more regular things.  A complaint about subject matter jurisdiction may be raised for the first time on appeal, and hence the lack of a verified pleading does not waive the same:

  • Subject matter jurisdiction: “Because it implicates this Court’s jurisdiction, we first address Anderson’s second issue, in which she contends that the county court erred in determining that she waived the jurisdictional issue by (1) failing to comply with Texas Rule of Civil Procedure 93 when asserting the affirmative defense of a title dispute, and (2) the affirmative defense was ineffective. On appeal, Chandler claims that Anderson waived the jurisdictional issue by (1) failing to file a sworn pleading contending [*4] lack of jurisdiction, and (2) misstating the name of the previous owner in her answer. Rule 93 requires that certain pleas be verified. See Tex. R. Civ. P. 93. However, a plea to jurisdiction need not be sworn. . . . Moreover, subject matter jurisdiction is fundamental and may be raised for the first time on appeal. . . . Accordingly, we conclude that Anderson was not required to verify her answer asserting a title dispute and challenging the county court’s jurisdiction.” Anderson v. Chandler, No. 12-16-00299-CV, 2017 Tex. App. LEXIS 6035, at *3 (Tex. App.—Tyler June 30, 2017)
  • Subject Matter Jurisdiction: “Regarding the answer’s effectiveness, Anderson’s answer identifies the previous owner as “Eddie Dunn” rather than Eddie Don Perry. Nevertheless, Anderson claimed that she had been given the property and, therefore, title was at issue. This allegation was sufficient to inform the county court that it lacked jurisdiction. Additionally, both sides elicited testimony, without objection, that the previous owner was Eddie Don Perry. Anderson specifically testified that her answer contained a misspelling of the name. The record does not demonstrate that anyone was misled by the misnomer, [*5] and the correction of the name at trial is allowed so long as no one was misled by the mistake. . . . . For these reasons, Anderson did not waive the jurisdictional issue by failing to plead a sworn affirmative defense or by misstating the name of the previous owner in her answer.” Anderson v. Chandler, No. 12-16-00299-CV, 2017 Tex. App. LEXIS 6035, at *4-5 (Tex. App.—Tyler June 30, 2017)

Here is an interesting case where the court of appeals held that a party preserved its complaint about a jury finding of zero attorney’s fees. The trial court granted the party a new trial on attorney’s fees, and the opposing party contends on appeal that the trial court should not have granted that new trial because the party seeking fees had waived the objections which led to the new trial. This case reminds us that, if a jury returns an incomplete or inconsistent verdict, one has to object in time for the trial court to return the jury to deliberations-but if the jury answers a question in a manner inconsistent with the sufficiency of the evidence, that is a matter than can be preserved post-trial:

  • Attorney’s Fees: “In its fifth and final issue, GB Tubulars contends that the trial court erred in granting Union Gas a new trial on attorney’s fees. As discussed above, although the jury found GB Tubulars breached several warranties, a cause of action on which attorney’s fees can be recovered, the jury found the amount of Union Gas’s reasonable and necessary attorney’s fees to be zero. . . . Union Gas moved to accept the verdict into the record and shortly thereafter filed a motion for new trial asserting that “zero” was an improper finding on attorney’s fees. The trial court granted the motion for new trial, and the parties agreed [*29] to retry the issue to the bench. The trial court subsequently determined that Union Gas was entitled to $950,000 in attorney’s fees, as well as additional fees in the event GB Tubulars appealed. GB Tubulars contends Union Gas waived any right to attorney’s fees by (1) failing to request the trial court to send the jury back for further deliberations and (2) moving to accept the verdict. We disagree with both contentions. GB Tubulars asserts that, when a jury returns an incomplete or inconsistent verdict, the trial court may send the jury back for further deliberations, citing Tex. R. Civ. P. 295; . . . .The jury’s verdict in this case, however, was neither incomplete (i.e., the jury answered all of the questions it was supposed to answer) nor internally inconsistent (i.e., there is no conflict between any answers). . . . A jury can, in fact, properly find attorney’s fees to be zero-even as to causes of action on which fees are recoverable-when the evidence supports that finding. When a jury finds zero attorney’s fees in such circumstances, the issue is analyzed as for sufficiency of the evidence. . . . The authorities GB Tubulars cites for incomplete or inconsistent verdicts are therefore inapposite, and its argument is without merit.” GB Tubulars, Inc. v. Union Gas Operating Co., No. 14-15-00671-CV, 2017 Tex. App. LEXIS 5937, at *28-30 (Tex. App.-Houston [14th Dist.] June 29, 2017)

Here is a case in which the court held that a party preserved “reliable foundation” objections to an expert:

  • Expert Witness: “Next, Fisher argues that Breen’s opinion “lacked a reliable foundation” because it was based upon various unreliable facts, including: (1) Kawasaki’s complaint database; (2) Kawasaki sold 66,000 units with a similar latch; and (3) the Consumer Product Safety Commission database revealed no similar incidents. Kawasaki responds by arguing that Fisher waived any foundational complaints. We disagree and find that based upon the record, Fisher lodged [*14] foundational objections and obtained the necessary rulings regarding Breen’s 99.99-percent opinion at trial to preserve these objections for our review. See Tex. R. App. P. 33.1(a).” Fisher v. Kawasaki Heavy Indus., No. 13-15-00364-CV, 2017 Tex. App. LEXIS 6013, at *13-14 (Tex. App.-Corpus Christi June 27, 2017)

Here is one that reminds us that a notice of trial is only effective if it gives notice that a trial will occur on the date in question-and that a complaint about the failure of the notice in that regard can be preserved at trial and does not need to be raised in a subsequent motion for new trial:

  • Notice: “Mother also argues that Father failed to preserve his complaint [about the notice’s failure to advise him that trial would occur on the date he was to be available by phone] because he did not file a motion for new trial. A rule 245 objection to lack of notice made only in a motion for new trial, however, is untimely and preserves nothing for review. . . . At trial, Father both testified to and objected to the lack of notice, and the trial court overruled his objection, although construing Father’s complaint as a motion for continuance. See Tex. R. App. P. 33.1 (complaint to and ruling by trial court required to preserve error for appeal); . . . .We conclude Father did not waive his objection by failing to file a motion for new trial.” In the Interest of L.G.T., No. 05-17-00140-CV, 2017 Tex. App. LEXIS 5884, at *17-18 (Tex. App.-Dallas June 26, 2017)

You must make a record of your complaint to preserve it:

  • Jury Trial: “Appellants’ third issue argues the trial court erred by refusing their request for a jury trial. The record reflects a jury trial was requested by appellants in 2012. Subsequently, appellants waived that request and proceeded to trial before the bench on December 12, 2013. A jury trial was again waived as part of the MSA. In their brief, appellants’ assert that in a pre-trial bench conference on June 22, 2015, they asked for a jury trial and advised the trial court the jury fee had been paid. However, appellants concede their request was not recorded by the reporter and the record [*6] does not contain an objection to the reporter’s failure. . . . Accordingly, nothing is preserved for our review See Tex. R. App. P. 33.1(a). Issue three is overruled.” In re Kennedy, No. 14-15-01038-CV, 2017 Tex. App. LEXIS 6144, at *5-6 (Tex. App.—Houston [14th Dist.] July 6, 2017)

Your complaint must be timely:

  • Attorney: “We conclude King waived her complaint about the court’s failure to appoint an attorney for her by waiting until trial was underway to seek a ruling on her request. See HN1 Tex. R. App. P. 33.1(a) (record must show, as prerequisite to presenting complaint for appellate review, that complaint was made to trial court by timely request and that court ruled on request). King filed a written request for an attorney to represent her at trial in the county court. [*6] But she did not get a ruling on her request prior to trial. Further, King did not bring her desire for an attorney to the trial court’s attention at the start of trial. King waited until the conclusion of the testimony of Forty 200’s sole witness and until she herself had presented some of her version of the case to the judge before bringing up the request for an attorney. King’s failure to get a ruling on her request for an attorney in a timely manner waives consideration of this complaint on appeal.” King v. Forty 200, No. 05-16-00438-CV, 2017 Tex. App. LEXIS 5882, at *5-6 (Tex. App.-Dallas June 26, 2017)

You have to make your complaint in the trial court to preserve it for appeal:

  • Attorney’s Fees: “As for the attorney’s fees, Gonzalez correctly notes that under section 24.006 of the Texas Property Code, a landlord who provides his tenant with proper notice to vacate is entitled to recover his attorney’s fees in an eviction suit. Tex. Prop. Code Ann. § 24.006(b) (West 2014). Attorney fees were not awarded in the trial court’s judgment. Following entry of the judgment, the record does not show Gonzalez brought the [*7] omission of the attorney’s fees to the attention of the trial court by a motion to amend or correct the judgment or in a motion for new trial. Because Gonzalez failed to bring this issue to the attention of the trial court, we conclude error, if any, was waived.” Gutierrez v. Gonzalez, No. 05-16-00631-CV, 2017 Tex. App. LEXIS 5877, at *6-7 (Tex. App.—Dallas June 26, 2017)
  • Constitutional: “In his fourth issue, Proctor contends that the trial court violated his constitutional right to due process in several particulars. As previously noted, Proctor did not present a due process complaint to the trial court at any time during the proceedings below but instead raises it for the first time on appeal. See Sherry, 46 S.W.3d at 861 (noting that generally HN8 even constitutional challenges must have been asserted in trial court in order to be raised on appeal); Nivens, 245 S.W.3d at 475 n.6 (concluding that taxpayers failed to preserve their argument that trial court violated their due process rights by granting city’s plea to the jurisdiction where taxpayers did not raise issue before trial court). Having failed to do so, Proctor has not preserved this issue for appellate review. See Tex. R. App. P. 33.1 (in order to preserve complaint for appellate review, record [*18] must show that appellant made complaint to trial court and stated grounds for ruling with sufficient specificity that trial court was made aware of complaint). Accordingly, we overrule Proctor’s fourth issue.” Proctor v. Quality Signs, Inc., No. 01-15-00861-CV, 2017 Tex. App. LEXIS 6209, at *17-18 (Tex. App.—Houston [1st Dist.] July 6, 2017)
  • Deceptive Trade Practice: “Proctor also contends that “a number of the portions of the [Business and Commerce Code] apply in this case . . . .” However, Proctor never pleaded a claim for violation of the Business and Commerce Code or otherwise raised this argument for the trial court’s consideration. See Tex. R. App. P. 33.1. Having failed to do so, he waived this argument.” Proctor v. Quality Signs, Inc., No. 01-15-00861-CV, 2017 Tex. App. LEXIS 6209, at *13 (Tex. App.—Houston [1st Dist.] July 6, 2017)
  • Jury Argument: “ Generally, in order to obtain a reversal on the basis of improper jury argument, an appellant must prove that: (1) an error was made in argument; (2) the argument was not invited or provoked; (3) the error was preserved by the proper objection, motion to instruct, or motion for mistrial; and (4) the argument was not curable by an instruction, prompt withdrawal, or reprimand. . . . And, the appellant must also prove “that the argument by its nature, degree and extent constituted reversibly harmful error,” and “that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.” Reese, 584 S.W.2d at 839-40 [*19] . It is clear from the record that Mauricio failed to object to the “double dipping” comment, and has therefore waived his complaint unless he can show the harm to be incurable. Mauricio argues that harm is shown because the jury did not award future damages and it did not award the full amount of past medical expenses and lost wages. We have, however, already concluded that the jury’s damages awards were not against the great weight and preponderance of the evidence. Based on the evidence presented, the jury was free to disregard all evidence of damages resulting from the surgery. Thus, Mauricio has failed to show that the “double dipping” comment is more probably the reason for the jury’s findings than was the evidence presented at trial. Accordingly, we overrule Mauricio’s final issue on appeal.” Mauricio v. Cervantes, No. 04-16-00260-CV, 2017 Tex. App. LEXIS 5932, at *18-19 (Tex. App.—San Antonio June 28, 2017)
  • Jury Trial: “In its third issue, GB Tubulars contends that the trial court erred in submitting too many questions to the jury on multiple theories of recovery even though they were all based on essentially the same facts, resulting in juror confusion and irreconcilable findings. . . . GB Tubulars does not cite to any place in the record where it made this argument below. See Tex. R. App. P. 33.1(a) (requiring as a prerequisite to appellate review that a complaint be made in the trial court by a timely and sufficiently specific request, objection, or motion); . . . We therefore reject the argument without further analysis and overrule the third issue.” GB Tubulars, Inc. v. Union Gas Operating Co., No. 14-15-00671-CV, 2017 Tex. App. LEXIS 5937, at *25 (Tex. App.-Houston [14th Dist.] June 29, 2017)
  • Order: “Finally, Mother complains that the trial court failed to adhere to the “normal civil procedure” of having her counsel, rather than Father’s counsel, draft final orders and that the trial court’s final judgment does not accurately [*24] reflect the parenting plan the trial court established. However, Mother did not raise these arguments in the trial court. See Tex. R. App. P. 33.1. Moreover, the record reflects that Mother’s counsel agreed to the form of the trial court’s final judgment. A party who agrees to the form of the trial court’s order indicates that the order accurately sets forth the trial court’s ruling. See In re Cauley, 437 S.W.3d 650, 658 (Tex. App.—Tyler 2014, orig. proceeding) (citing Bexar Cty. Criminal Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ)). We conclude, therefore, that Mother has waived on appeal her complaint regarding the form of the trial court’s written judgment.” In re S.H., No. 02-15-00360-CV, 2017 Tex. App. LEXIS 6206, at *24 (Tex. App.—Fort Worth July 6, 2017)
  • Special Appearance: “Appellants do not direct us to, and our review does not reveal, any portion of the record in which the trial court ruled on the directors’ special appearances. Thus, nothing is preserved for our review. See TEX. R. APP. P. 33.1.” Neff ex rel. Weatherford Int’l, Ltd. v. Brady, No. 01-15-00544-CV, 2017 Tex. App. LEXIS 5975, at *36 (Tex. App.-Houston [1st Dist.] June 29, 2017)
  • Summary Judgment: “Proctor complains that the trial court’s denial of his summary judgment motion, the granting of DeFoyd’s motion to withdraw, and the re-setting of the summary judgment hearing violated his due process rights under the United States and Texas Constitutions. A review of the record reflects that Proctor did not raise a due process claim at any time during the proceedings in the trial court below. Having failed to do so, Proctor has not preserved this issue for appellate review. See Tex. R. App. P. 33.1.” Proctor v. Quality Signs, Inc., No. 01-15-00861-CV, 2017 Tex. App. LEXIS 6209, at *7 (Tex. App.—Houston [1st Dist.] July 6, 2017)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

Error Preservation in Texas Civil Cases, June 25, 2017

June 25, 2017

Dear All:

The Supreme Court weighed in on error preservation again. I’ll summarize part of this one, but it bears reading because it does go to show that it’s not over until it’s over, it’s not over until the soprano sings, etc., etc.–especially if you are called in to save the day after the initial bad ruling, but while that ruling remains interlocutory. Here, the trial court granted a partial summary judgment (i.e., finding liability, but not resolving the damage issue). Before a final judgment was signed, the defendant filed “a motion for reconsideration of the interlocutory partial summary-judgment order, incorporating by reference a contemporaneously filed cross-motion for partial summary judgment asserting ratification and other affirmative defenses.” Under this set of facts, the defendant “pleaded ratification as an affirmative defense in compliance with Texas Rule of Civil Procedure 94, raised it again in response to the motion for partial summary judgment on liability, [which it had done, but apparently without supporting evidence] and moved for summary judgment on its affirmative defense prior to final judgment.. . . [the defendant] did not present its summary-judgment proof until after the trial court rendered partial summary judgment on the unpooling issue, but it did so in connection with a motion for reconsideration, before the unpooling claim had been fully adjudicated and prior to final judgment in the case. . . . In this case, the record reflects the trial court considered Samson’s motion, as it had discretion to do, . . . and specifically ruled on it. This is sufficient to meet the preservation requirements of Rule 33.1. Accordingly, Samson’s ratification defense was timely presented and [*32] ruled on by the trial court.” Samson Expl., LLC v. T.S. Reed Props., Inc., No. 15-0886, 2017 Tex. LEXIS 599, at *27 (June 23, 2017)

If you consent to the entry of the judgment, you have waived any complaints as to the stuff you consented to:

  • Judgment: “Here, when the trial court stated that it would follow the parties’ proposed decree, appellant stated that he agreed with “everything in the decree” except those matters that he had contested. At trial, appellant contested the appraised value of some of the real property, disagreed on the nature of a loan to his brother-in-law, and claimed an interest in appellee’s bank account. Appellant does not complain of the trial court’s rulings on these matters. And, appellant did not contest, and explicitly agreed, to the division of the property as stated in the divorce decree. Therefore, because appellant agreed to the divorce decree regarding the complained-of property, he has waived error, if any.” Gross v. Dannatt, No. 13-15-00309-CV, 2017 Tex. App. LEXIS 5710, at *2 (Tex. App.—Corpus Christi June 22, 2017) The Court made clear that “We note that standing alone the phrase in a judgment stating, “approved as to form and substance” does not transform a judgment into a consent judgment.”

Remember, you have to bring your complaint to the trial court’s attention–just filing a motion will not necessarily do the trick:

  • Continuance: “Muller also relies on a supplemental declaration, arguing that in “significant detail” his supplemental declaration “outlined what discovery was needed, why it was relevant, and what efforts he took to obtain it.” The supplemental declaration was filed as a stand-alone document on December 14, 2015, the same day the trial court held the summary-judgment hearing and signed its orders granting summary judgment. However, “[s]howing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling.” See Zahorik v. Metro. Life Ins. Co., No. 14-14-00564-CV, 2015 Tex. App. LEXIS 6790, 2015 WL 4051972, at *6-7 (Tex. App.—Houston [14th Dist.] July 2, 2015, no pet.) (mem. op.); . . . . Muller did not raise the supplemental declaration (or his request for a continuance at all) during the summary-judgment hearing. Under these circumstances, we conclude that Muller failed to preserve this particular argument for review. See Tex. R. App. P. 33.1(a).” Muller v. Stewart Title Guar. Co., No. 14-16-00311-CV, 2017 Tex. App. LEXIS 5600, at *12 n.7 (Tex. App.—Houston [14th Dist.] June 20, 2017)

Some complaints can be raised on appeal, at least under some circumstances:

  • Legal and Factual Sufficiency in Bench Trial: “ In her second issue, Morris contends [*5] the evidence is factually insufficient to support the equitable adjustments awarded by the trial court. And in her third issue, Morris argues the evidence is legally insufficient to support the award of attorney’s fees. Because challenges to the sufficiency of the evidence in nonjury cases may be brought for the first time on appeal, Morris has not waived these issues for appellate review. See Tex. R. App. P. 33.1(d);” Morris v. Hudson, No. 12-16-00114-CV, 2017 Tex. App. LEXIS 5659, at *4-5 (Tex. App.—Tyler June 21, 2017)
  • Notice: “RPH argues that Peridot waived its complaint regarding the insufficient notice of the trial date. Insufficient notice under Rule 245 may [*8] be waived if a party proceeds to trial without objecting to the lack of notice. . . . in the current case Peridot did not appear and participate in the trial. Accordingly, Peridot did not waive its right to forty-five days’ notice of the first trial setting.” In re RPH Capital Partners, LP, No. 04-16-00424-CV, 2017 Tex. App. LEXIS 5399, at *7-8 (Tex. App.—San Antonio June 14, 2017)

Here is one where a party adequately asserted a no evidence challenge as to many various causes of action–I finally tired of compiling them:

  • Summary Judgment: “Naomi and Joseph argue appellees’ no-evidence motion was conclusory and not sufficiently specific. . . .Appellees’ motion for summary judgment listed all of the [*8] “laundry list” violations Naomi and Joseph alleged in their live pleading. Appellees’ motion stated, “Plaintiffs ha[ve] presented no evidence that [appellees] engaged in any of the conduct [listed] above.” We hold appellees’ motion expressly presented a no-evidence ground as to the “false, misleading, or deceptive acts or practices” element of Naomi and Joseph’s “laundry list” claims. . . . Appellees’ motion asserted there is no evidence of a breach of an implied warranty of reasonable management and argued Texas law does not recognize such an implied warranty. We hold appellees’ motion expressly presented a no-evidence ground regarding the existence of a warranty of reasonable management and a breach of that warranty. . . .Appellees’ motion asserted Naomi and Joseph did not have “any evidence that [appellees] engaged in an unconscionable course [*16] of action or acted knowingly with respect to their alleged actionable conduct.” We hold appellees’ motion expressly presented a no-evidence ground regarding the “unconscionable action or course of action” element of Naomi and Joseph’s unconscionability claims under the DTPA. . . . Appellees’ no-evidence motion for summary judgment expressly presented no-evidence grounds regarding essential elements of each group of Naomi and Joseph’s claims under the DTPA. For each of their DTPA claims, Naomi and Joseph produced no evidence supporting at least one of the elements that appellees expressly challenged in their no-evidence motion for summary judgment. We therefore conclude the trial court did not err by rendering summary judgment on Naomi and Joseph’s DTPA claims. . . . Appellees’ motion challenged Naomi and Joseph’s constructive eviction claim, specifically listing the “permanent deprivation” element as the third element, and asserted Naomi and Joseph “have no evidence of elements (1) through (4) above.” We hold appellees’ motion expressly presented a no-evidence ground regarding the “permanent deprivation” element of the constructive eviction claim. . . .Appellees’ motion asserted Naomi and Joseph “have no evidence [appellees] evicted or otherwise prevented or impeded their access to the apartment.” We hold appellees’ motion expressly presented a no-evidence ground regarding the “eviction or dispossession” element.” McNeely v. Salado Crossing Holding, L.P., No. 04-16-00678-CV, 2017 Tex. App. LEXIS 5398, at *7-8 (App.—San Antonio June 14, 2017)

You have to comply with other pertinent rules:

  • Evidence: “”When no offer of proof is made before the trial court, the party must introduce the [*18] excluded testimony into the record by a formal bill of exception.” See Bobbora, 255 S.W.3d at 335 (citing Sw. Country Enters., Inc., 991 S.W.2d at 494-95). A formal bill of exception must be presented to the trial court for its approval, and, if the parties agree to the contents of the bill, the trial court must sign the bill and file it with the trial court clerk. . . .Tex. R. App. P. 33.2(c). “In a civil case, a formal bill of exception must be filed no later than 30 days after the filing party’s notice of appeal is filed.” Tex. R. App. P. 33.2(e)(1). Although appellants attached to their brief in support of motion for new trial the pretrial deposition of Cedillo, neither appellants’ motion for new trial nor brief in support attacks the trial court’s evidentiary rulings on this issue. . . . Further, appellants’ post-trial filings did not argue the requisite elements to present a formal bill of exceptions. See Tex. R. App. P. 33.2(c). In the absence of a bill of exceptions or offer of proof, this court has no basis for reviewing a contention that the trial court committed reversible error in excluding evidence. . . . Appellants’ complaint as to the exclusion of Cedillo’s [*19] pretrial oral deposition is waived. We overrule appellants’ second issue.” Duke v. Jack in the Box E. Div., L.P., No. 14-15-00798-CV, 2017 Tex. App. LEXIS 5341, at *17-19 (Tex. App.—Houston [14th Dist.] June 13, 2017)
  • Evidence: “To preserve error in the exclusion of evidence, a party must attempt to introduce the evidence and obtain a ruling excluding it. See Fuller v. State, 827 S.W.2d 919, 929 (Tex.Crim.App. 1992). Because Appellant did not attempt to introduce the evidence during trial. we conclude that she failed to preserve the alleged error. Issue One is overruled.” In the Interest of V.A.G., No. 08-15-00169-CV, 2017 Tex. App. LEXIS 5689, at *5 (Tex. App.—El Paso June 21, 2017)
  • Jury Charge: “Dang did not offer a correct damages question or otherwise object that the question lacked a measure of damages. None of the cases that Dang cites suggest that failure to submit a proper measure of damages to the jury is reversible absent a party’s objection on that ground. Because Dang requested an improper measure of damages and did not raise the objection to the charge that she now raises on appeal, we hold that Dang waived this objection. See Tex. R. Civ. P. 272, 274″ Tan Duc Constr. Ltd. Co. v. Tran, No. 01-14-00539-CV, 2017 Tex. App. LEXIS 5369, at *10 (Tex. App.—Houston [1st Dist.] June 13, 2017)

Your complaint must be sufficiently specific:

  • Indemnity: “At no time in the court below did RDJ challenge Miller Construction’s “seller” status. But RDJ asserts now that its three posttrial motions made plain that it was challenging the evidentiary sufficiency to support the jury’s implied finding that Miller Construction was a “seller.” We disagree. In its first posttrial motion, RDJ moved to disregard the jury’s finding that it was required to indemnify Miller Construction, claiming that Miller Construction’s loss did not arise from a products-liability action because (1) the Dankels did not plead a products-liability claim against Miller Construction and (2) the damages awarded against Miller Construction were for breach of contract and DTPA violations, not for “personal injury, death, or property damage arising out of a defective product.” Far from [*8] implicitly complaining that Miller Construction was not a statutory seller, by raising only these two arguments RDJ’s motion can be fairly read as tacitly presupposing “seller” status. RDJ made similar arguments in its contemporaneously filed objections to the Dankels’ motion to enter judgment. . . . Because RDJ’s complaints did not alert the trial court to any challenge to Miller Construction’s “seller” status, we conclude that RDJ has failed to preserve its first and third issues for our review. We therefore overrule them.” RDJRLW, Inc. v. Miller, No. 02-16-00132-CV, 2017 Tex. App. LEXIS 5494, at *7 (Tex. App.—Fort Worth June 15, 2017)

You have to raise your complaint in a timely fashion:

  • Evidence: “An offer of proof preserves error for appeal if: (1) it is made before the court, the court reporter, and opposing counsel, outside the presence of the jury; (2) it is preserved in [*17] the reporter’s record; and (3) it is made before the charge is read to the jury. . . . Then, appellants must prove: (1) the trial court erroneously excluded the evidence, (2) the excluded evidence was controlling on a material issue and was not cumulative of other evidence, and (3) the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a); . . . .Here, the issue of whether the trial court correctly ruled on the admissibility of Cedillo’s deposition testimony is not properly before us because appellants failed to preserve the issue for our review. See Tex. R. App. P. 33.1(a). During examination of Cedillo, the trial court ruled Cedillo’s pretrial oral deposition testimony inadmissible. Appellants failed to make an offer of proof of Cedillo’s deposition at that time, or at any other time during the evidentiary portion of the trial. See Tex. R. Evid. 103(c) (time period for making an offer of proof ends with the reading of the charge to the jury). If a party fails to do this, error is not preserved, and the complaint is waived.” Duke v. Jack in the Box E. Div., L.P., No. 14-15-00798-CV, 2017 Tex. App. LEXIS 5341, at *16-17 (Tex. App.—Houston [14th Dist.] June 13, 2017)
  • Partition: “In her first issue, Morris urges that the trial court exceeded its authority when it granted equitable adjustments in the second partition order. However, Morris filed her objection to Hudson’s application for distribution three days after the trial court signed and entered its March 15 order. Thus, she did not present the trial court with a timely request, objection, or motion. See Tex. R. App. P. 33.1.” Morris v. Hudson, No. 12-16-00114-CV, 2017 Tex. App. LEXIS 5659, at *4 (Tex. App.—Tyler June 21, 2017)
  • Summary Judgment: “Carto did not raise, in either its second amended petition or response to Briar’s summary-judgment motion, a claim of breach of fiduciary duty. Rather, Carto waited until its motion for new trial, filed after the trial court had granted summary judgment and dismissed Carto’s claims to raise its claim that Briar had breached its “informal fiduciary duties.” This was not sufficient to preserve the issue for appellate review.Carto Props., LLC v. Briar Capital, L.P., No. 01-15-01114-CV, 2017 Tex. App. LEXIS 5373, at *28 (Tex. App.—Houston [1st Dist.] June 13, 2017)

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

  • Affidavit: “Although Appellants objected to Welch’s affidavit in their special exceptions, they failed to obtain a ruling on their objection. Therefore, Appellants have failed to preserve [*21] any complaint related to Welch’s affidavit for our review.” Hartwell v. Lone Star, PCA, No. 06-17-00030-CV, 2017 Tex. App. LEXIS 5628, at *20-21 (Tex. App.—Texarkana June 21, 2017)
  • Attorney’s Fees: “Although the record contains a petition with a counterclaim for fees, Tan Duc does not identify any motion for fees in the appellate record, and we have found none. Because the record does not reflect that Tan Duc asked the trial court to award attorney’s fees on any of the bases raised in its brief on appeal, we hold that it has waived its appellate arguments regarding fees. See Tex. R. App. P. 33.1″ Tan Duc Constr. Ltd. Co. v. Tran, No. 01-14-00539-CV, 2017 Tex. App. LEXIS 5369, at *23 (Tex. App.—Houston [1st Dist.] June 13, 2017)
  • Evidence: “Sharnese [*5] argues that documents she filed prior to trial, titled “Damages” and “Notice of Preservation of Right to Seek Punitive Damages,” constituted evidence of her damages. However, pleadings are not evidence unless offered and admitted as evidence by the trial court. . . . She also argues that her evidence of damages was submitted on the day of trial, when Sharnese attempted to have all of her exhibits pre-admitted. Defense counsel objected, arguing that Sharnese still needed to lay the predicate foundation for her exhibits. The trial court deferred ruling on the admissibility of the exhibits and instructed Sharnese to offer the exhibits as needed, but Sharnese made no further attempt to introduce the document titled “Damages,” or any other exhibits pertaining to her damages, until after she had rested. Because Sharnese did not get a ruling from the trial court on the admissibility of her damages exhibits when she first attempted to offer them, and then failed to offer the exhibits again during the evidentiary portion of the trial, she failed to preserve this issue for our review. Tex. R. App. P. 33.1(a).” Sharnese v. Lopez, No. 05-15-00780-CV, 2017 Tex. App. LEXIS 5694, at *4-5 (Tex. App.—Dallas June 21, 2017)
  • Expenses: “Moreover, the record does not reflect that appellees urged the trial court to rule on the motion for expenses or objected to the trial court’s failure to rule. To preserve a complaint for appellate [*16] review when a trial court fails to expressly or implicitly rule on a party’s timely request, objection, or motion, the party generally must object to the court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); . . . . Because the record does not reflect that the trial court expressly or implicitly ruled on the motion for expenses or that appellees objected to any refusal to rule, appellees have not preserved the issue of expenses under section 153.404(e) for our review.” Immobiliere Jeuness Establissement v. Amegy Bank Nat’l Ass’n, No. 14-16-00457-CV, 2017 Tex. App. LEXIS 5591, at *15-16 (App.—Houston [14th Dist.] June 20, 2017)

The complaint you make on appeal must be the complaint you made at trial:

  • Constitution: “In their brief, Appellants argue that they were deprived of due process and denied benefit of counsel when Wolf “had to leave partway through the . . . . [h]earing,” citing Ex parte Hiester, 572 S.W.2d 300 (Tex. 1978). In their reply brief, they offer additional reasons why it was unfair to require their counsel to attend by telephone. However, to preserve an issue for appellate review, a party must make a timely and specific motion or objection. TEX. R. APP. P. 33.1(a)(1)(A);. . . Appellants did not make any objection or argument in their motion for continuance, at the hearing on the motion for a continuance, or at the temporary injunction hearing based on due process or the denial of counsel. Therefore, Appellants have not preserved this issue for our review.” Hartwell v. Lone Star, PCA, No. 06-17-00030-CV, 2017 Tex. App. LEXIS 5628, at *5 n.5 (Tex. App.—Texarkana June 21, 2017)
  • Jury Charge: “Next, Brenda complains about questions six and seven, and eight and nine. Question six asks the jury whether Brenda committed fraud with respect to Dan’s separate property. Question seven then asks, what sum of money, if paid now in cash, would fairly and reasonably compensate Dan’s separate estate for the damages, if any, resulting from Brenda’s fraud. On appeal, Brenda argues that such inquiries in questions six and seven were immaterial because it was in “sum and substance” a breach of fiduciary question and should not have been submitted to the jury. At the charge conference, however, Brenda objected to question six on the grounds that it was “overbroad” and “does not make a specific inquiry of conduct [*28] which could result in liability on the part of [Brenda],” and with regard to question seven, Brenda objected that the way the question was asked was an impermissible comment on the evidence. Brenda’s objections made on appeal with regard to questions six and seven do not comport with those made below and are thus waived.” Hughes v. Hughes, No. 13-15-00496-CV, 2017 Tex. App. LEXIS 5713, at *27-28 (Tex. App.—Corpus Christi June 22, 2017)
  • Jury Charge: “Moreover, as to question nine, we hold that the trial court did not abuse its discretion in submitting question eight to the jury, and Brenda’s objections to question nine on appeal do not comport with those raised at the trial court and are thus waived. See Tex. R. Civ. P. 274.” Hughes v. Hughes, No. 13-15-00496-CV, 2017 Tex. App. LEXIS 5713, at *29-30 (Tex. App.-Corpus Christi June 22, 2017)
  • Partition: “Further, Morris’s objection did not challenge the trial court’s authority to grant equitable adjustments in the second partition order. As a result, the trial court did not have an opportunity to address Morris’s argument, which she asserts for the first time on appeal, that it exceeded its authority by granting the equitable adjustments in its second partition order.  . . . Accordingly, Morris failed to preserve her first issue for appellate review. See Tex. R. App. P. 33.1.” Morris v. Hudson, No. 12-16-00114-CV, 2017 Tex. App. LEXIS 5659, at *4 (Tex. App.—Tyler June 21, 2017)
  • Temporary Injunction: “When the trial court entered the temporary injunction, it addressed the complaint asserted in the motion to dissolve by broadening the permissible use of Appellants’ assets and financial accounts to include the payment of routine business expenses and scheduled debt payments, in addition to the payment of ordinary living expenses. Appellants made no complaint to the trial court regarding these revisions, nor did they make any other complaint regarding the terms of the temporary injunction. By failing to present their complaints to the trial court, Appellants failed to preserve any error regarding the terms of the temporary injunction. Tex. R. App. P. 33.1(a)(1)(A).” Hartwell v. Lone Star, PCA, No. 06-17-00030-CV, 2017 Tex. App. LEXIS 5628, at *22 (Tex. App.—Texarkana June 21, 2017)

You have to make your complaint in the trial court to preserve it:

  • Attorney’s Fees: “In the context of segregation of fees, the party opposing an award of attorney’s fees must make a timely objection. . . . If no one objects that the attorney’s fees are not segregated as to specific claims, then the objection is waived. Id. Appellants waived review of this complaint because they failed to raise it in the trial court. All of Appellants’ arguments relating to damages are overruled.” ” Lakeside Vill. Homeowners Ass’n v. Belanger, No. 08-15-00214-CV, 2017 Tex. App. LEXIS 5419, at *64 (Tex. App.—El Paso June 14, 2017)
  • Evidence: “By their second issue, appellants argue that the trial court erred by “allowing [the City] to enter a defective notice to vacate” into evidence at trial. Appellants assert that the notice provided by the City was “incomplete” because, while the notice stated that it was accompanied by certain attachments, trial testimony established that the notice did not, in fact, contain an attachment. Under the property code, a landlord must generally provide a tenant with a notice to vacate prior to suing for eviction. See Tex. Prop. Code Ann. § 24.005 (West, Westlaw through 2015 R.S.). But it is undisputed that the City complied with this duty, and appellants do not cite any authority, nor do we find any, [*6] stating that a notice to vacate must include certain attachments or that it must state the alleged grounds for eviction. In any event, appellants’ counsel did not object to the admission of the notice to vacate as evidence at trial. Accordingly, any error in admitting the notice is waived.” Lewis v. City of Conroe, No. 13-15-00464-CV, 2017 Tex. App. LEXIS 5452, at *5-6 (Tex. App.—Corpus Christi June 15, 2017)
  • Jury Charge: “When a single broad-form liability question commingles valid and invalid liability grounds and the appellant’s objection is timely and specific, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an invalid theory. . . . Here, Appellants did not object to the form of submission. There [sic.] merely objected to the evidence supporting costs of repairs, loss of rental income, and submission of a mental anguish question in a property case. Even had Appellants properly objected, their argument is still without merit as the evidence supports the validity of Appellees’ multiple theories of liability.” Lakeside Vill. Homeowners Ass’n v. Belanger, No. 08-15-00214-CV, 2017 Tex. App. LEXIS 5419, at *64 (Tex. App.—El Paso June 14, 2017)
  • Jury trial: “In addition, the record reflects that Noelia waived any error because she failed to object when the trial court proceeded with a bench trial.” Sunesara v. Prappas, No. 09-16-00088-CV, 2017 Tex. App. LEXIS 5764, at *12 (Tex. App.—Beaumont June 22, 2017)
  • Limitations: “Assuming without deciding that the Association and AMI have standing to assert limitations as an affirmative [*8] defense to Eichner’s claims, they did not raise the defense below. In the trial court, the Association and AMI never contended that Eichner’s lien was void due to Eichner’s alleged failure to enforce it during a limitations period. Nor did they assert, or prove, that Eichner’s intervention to assert its lienholder rights was barred as untimely. Appellees did not raise these arguments in their summary judgment motion or pleadings, nor did they direct the trial court to the Civil Practice and Remedies Code limitations provision on which their motion to dismiss is based. Being grounded on a limitations argument, the issues raised in the motion to dismiss do not implicate our appellate jurisdiction.” Kenneth D. Eichner, P.C. v. Dominguez, No. 14-16-00192-CV, 2017 Tex. App. LEXIS 5334, at *7-8 (Tex. App.—Houston [14th Dist.] June 13, 2017)
  • Pleading: “With regard to question four, Brenda also argued to the trial court and now on appeal that question four concerned [*26] an impermissible question of contract interpretation outside the jury’s role as a fact finder. Furthermore, Brenda argues that the question is based upon an affirmative defense of offset that Dan did not properly plead. In response to Brenda’s failure-to-plead argument, Dan asserts that the arguments are waived. We agree with Dan. Rule 274 of civil procedure expressly states that “any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex. R. Civ. P. 274. Brenda failed to raise the affirmative defense objection below at the charge conference, and such argument is now waived on appeal.” Hughes v. Hughes, No. 13-15-00496-CV, 2017 Tex. App. LEXIS 5713, at *25-26 (Tex. App.—Corpus Christi June 22, 2017)
  • Sanctions: “RDJ also generally discusses the TransAmerican two-part test for determining whether discovery sanctions were “just.” See TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding); see also Tex. R. Civ. P. 215.2(b). Because RDJ did not raise the applicability of the TransAmerican test in the trial court, we do not address it. See Tex. R. App. P. 33.1(a).” RDJRLW, Inc. v. Miller, No. 02-16-00132-CV, 2017 Tex. App. LEXIS 5494, at *22 n.11 (Tex. App.—Fort Worth June 15, 2017)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

 

Error Preservation Update, June 11, 2017

June 11, 2017

Dear All:

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

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

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

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

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

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

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

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

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

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

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

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

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

You have to comply with other rules:

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

You have to present your complaint in a timely fashion:

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

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

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

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

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

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

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

Best regards.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation Update, May 21, 2017

May 21, 2017

Dear All:

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

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

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

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

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

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

Your complaint must comply with other pertinent rules:

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

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

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

Your complaint must be timely:

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

You have to obtain a ruling on your complaint:

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

You have to raise your complaint in the trial court:

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

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation Update, May 7, 2017

May 7, 2017

Dear All:

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

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

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

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

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

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

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

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

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

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

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

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com