Error Preservation Update, May 5, 2016

May 5, 2016

Dear All:

Some issues do not have to be raised in the trial court to be raised on appeal:

  • Administrative Law: “Based on the plain language of Rider 50 and section 355.201(d), we conclude that the Commissioner acted consistently with HHSC rules when he determined the October rates in response to the legislative’s directive in Rider 50. . . . Thus, we conclude that appellees have not stated a valid ultra vires claim against the Commissioner based on the October rates and HHSC rules to invoke the trial court’s jurisdiction. . . . In their briefing, appellees contend that HHSC and the Commissioner argue for the first time on appeal that the October rates were “adjustments” so that this argument is not preserved for appellate review. We disagree with this characterization of appellants’ position in the trial court. Further, jurisdictional arguments may be raised for the first time on appeal.” Traylor v. Diana D., 2016 Tex. App. LEXIS 4137, *26 (Tex. App. Austin Apr. 21, 2016)
  • Standing: “In her motion for rehearing, Gwendoln argues that Thurman ‘does not have standing’ to complain about the characterization of the house because he ‘claims no interest in the house’ and is ‘only incidentally aggrieved by the alleged mischaracterization.’ Rather, the church is the ‘only party with standing’ because it ‘was the only party to be personally aggrieved by a mischaracterization of the property as community property, rather than property outside of the estate.’ As a necessary component of a court’s subject-matter jurisdiction, standing cannot be waived and can be raised for the first time on appeal.” W. v. W., 2016 Tex. App. LEXIS 4457, *12 (Tex. App. Houston 1st Dist. Apr. 28, 2016)

If you invite the error of the trial court, you cannot complain about the same on appeal:

  • Judgment: “Robles did not make any objection to the injunction’s provision requiring the removal of cattle from the easement. [16] Rather, Robles filed a post-judgement “Objection to Plaintiff’s Proposed Judgment and Defendant’s Motion to Enter His Proposed Judgment” that included Robles’s proposed judgment as an attachment. Robles’s proposed judgment includes the very language that he now complains about on appeal. . . . “If a party files a motion for judgment on the verdict and does not indicate in some manner that it disagrees with the substance of the verdict, then that party cannot challenge on appeal the judgment it requested. . . . This rule is nothing more than a species of the invited error doctrine which prohibits a party from complaining on appeal about an error which he invited.” Morse v. DelGado, 975 S.W.2d 378, 381 (Tex. App.—Waco 1998, no writ) . . . . Accordingly, Robles’s second argument is waived.” Robles v. Mann, 2016 Tex. App. LEXIS 4135, *15-16 (Tex. App. Corpus Christi Apr. 21, 2016)

Your complaint on appeal cannot differ from your complaint at trial:

  • Evidence: “As a prerequisite to presenting a complaint for appellate review, a party generally must have presented the complaint to the trial court by timely request, objection, or motion with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a); . . .Mother’s objection in the trial court that the evidence was irrelevant did not preserve error on Mother’s appellate complaint that the evidence was highly prejudicial or more prejudicial than probative. . . . . Mother did not raise a constitutional objection to this evidence. To the extent Mother argues the trial court violated her constitutional rights by allowing this evidence to be admitted at trial, Mother did not object to the evidence on those grounds and therefore did not preserve this complaint for appellate review.” Chavez v. Chavez, 2016 Tex. App. LEXIS 4174, *11 (Tex. App. Houston 14th Dist. Apr. 21, 2016)

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

  • Arbitration: “And Pace’s contention that a portion of the arbitration clause was unconscionable is not before us because Pace did not get a ruling on that issue.” Robinson v. Pace Homes, 2016 Tex. App. LEXIS 4510, *6 (Tex. App. Dallas Apr. 28, 2016)

You have to raise your complaint in the trial court:

  • Affidavit: “In her first issue, Geister submits that the trial court erred in relying on Discover’s summary-judgment proof in the form of a business-records affidavit. She contends that the affidavit was defective because it was not based on personal knowledge and that it contained hearsay. However, these are alleged defects in form, and Geister has waived them by not objecting to them in writing before the trial court.” Geister v. Discover Bank, 2016 Tex. App. LEXIS 4343, *1 (Tex. App. Austin Apr. 27, 2016)
  • Attorney’s Fees: “In Helms’s seventh issue, she contends that Swansen failed to segregate recoverable fees from those incurred on claims for which fees are not recoverable. We do not reach the merits of this argument because Helms did not lodge a trial court objection on this ground and it is therefore waived.” Helms v. Swansen, 2016 Tex. App. LEXIS 4540, *23 (Tex. App. Tyler Apr. 29, 2016)
  • Capacity: “As in Flood, the issue in this case is whether a successor entity may sue on contracts between its predecessor entity and a third party. Following Flood, we hold that a challenge to the right of a contracting party’s successor-in-interest to sue under the contract concerns the successor entity’s capacity, and thus must be raised in [12] a verified pleading. Tex. R. Civ. P. 93; . . . Because Cintex did not challenge M&E’s capacity by verified pleading, Cintex waived its objection. . . . To determine whether the issue was tried by consent, a court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. . . . . A court may deem a party’s unpleaded issue to have been tried by consent when evidence is developed on the issue under circumstances indicating that both parties understood the issue was in the case, and the other party failed to object. . . .The parties litigated the question of M&E’s entitlement to sue on Haddad’s contracts as well as those for which M&E contended that it was the contracting entity. . . . The parties thus developed the issue of M&E’s capacity to sue by presenting relevant evidence. Because the parties adduced conflicting evidence at trial about whether M&E had the capacity to seek a recovery against Cintex, we hold that the trial court erred in directing a verdict on M&E’s lack of capacity. The fact that the issue was tried by consent undermines, rather than supports, the conclusion that a directed verdict on capacity was proper.” M&E Endeavours LLC v. Cintex Wireless LLC, 2016 Tex. App. LEXIS 4109, *11-12 (Tex. App. Houston 1st Dist. Apr. 19, 2016)
  • Continuance: “Here, nothing in the record indicates that the Homeowners ever called their motion for continuance to the trial court’s attention, obtained a ruling on their motion, or objected to any refusal by the trial court to rule on their motion. Therefore, based on the record before us, we conclude that the Homeowners have waived appellate complaint of this issue.” Spears v. Falcon Pointe Cmty. Homeowner’s Ass’n, 2016 Tex. App. LEXIS 4382, *7 (Tex. App. Austin Apr. 28, 2016)
  • Due Process: “To the extent that Mother asserts on appeal that the trial court violated her due process or equal protection rights, Mother did not voice any such complaint in the trial court and therefore did not preserve error.” Chavez v. Chavez, 2016 Tex. App. LEXIS 4174, *11 (Tex. App. Houston 14th Dist. Apr. 21, 2016)
  • Evidence: “In their fourth issue, appellants assert the trial court erred in admitting evidence that, several years before the collision, Leimeister went to the emergency room complaining of chest pain and was advised to see a cardiologist, but he did not do so. According to appellants, the trial court should have excluded this evidence because its probative value was substantially outweighed by the danger of unfair prejudice. Appellants made no rule 403 objection at trial. Therefore, they waived this complaint.” Leimeister v. Cosmic Limousine & Transp. Co., 2016 Tex. App. LEXIS 4125, *16 (Tex. App. Dallas Apr. 20, 2016)
  • Jury Argument: “In his second issue, W.C. complains that statements made by C.C.’s attorney during his opening statement and closing argument were improper jury arguments. Further, he contends, that even though he did not object at the time, these arguments were so plainly prejudicial that an instruction to disregard would probably have been to no avail. In other words, W.C. asserts that C.C.’s attorney’s statements were incurable jury argument. Generally, an objection to improper jury argument must be preserved by a timely objection and request for an instruction that the jury disregard the improper remark. Tex. R. App. P. 33.1(a)(1); . . . . However, a point in a motion for new trial is a prerequisite to a complaint of incurable jury argument that is not otherwise ruled on by the trial court. See TEX. R. CIV. P. 324(b)(5); . . . . Here, W.C. admits that he did not timely object to the attorney’s statements and arguments. Further, he did not raise the issue of incurable jury argument in his motion for new trial. See TEX. R. CIV. P. 324(b)(5); . . . .Therefore, he has waived his complaint about C.C.’s attorney’s allegedly incurable jury arguments.” Z. C., 2016 Tex. App. LEXIS 4546, *3 (Tex. App. Tyler Apr. 29, 2016)
  • Jury Finding: “In contending otherwise, Beutel argues first that he presented legally sufficient evidence of “material alteration” consisting of his testimony that he terminated the guarantee agreement. Beutel overlooks that the proper focus of his material-alteration defense is whether there had been a material alteration of the underlying contractual obligations [23] between HUB and U.S. Foods that he had agreed to guarantee, not whether he had terminated or altered the terms by which he had guaranteed that underlying risk. Morever, Beutel’s argument is contrary to the jury’s finding that he breached the guarantee agreement, and he has preserved no challenge to that finding.” U.S. Foodservice, Inc. v. Winfield Project Mgmt., LLC, 2016 Tex. App. LEXIS 4075, *21-23 (Tex. App. Austin Apr. 20, 2016)
  • Oath: “In this case, the record shows Martin’s attorney was clearly attempting to prove nonreceipt or the absence of proper service; therefore, opposing counsel should have known to object to the unsworn statements. See id. Because no objection was made, the statements by Martin’s attorney are evidence of nonreceipt. See id. And, because Martin offered evidence that his attorney never received the county clerk’s notice to pay costs, the presumption of service under Rule 21a was overcome.” Martin v. Fannie Mae, 2016 Tex. App. LEXIS 4051, *5 (Tex. App. San Antonio Apr. 20, 2016)
  • Sanctions: “Even if these sanctions were not supported by sufficient good cause stated in the orders, the Estate failed to object in the trial court to the need for particularized findings and, thus, waived this argument.” Estate of Anne Farish Huffhines, 2016 Tex. App. LEXIS 4469, *29 (Tex. App. Fort Worth Apr. 28, 2016)
  • Summary Judgment: “By his third [6] issue, Goss also argues Addax’s summary judgment motion is facially defective because, he contends, it fails to comply with Texas Rule of Civil Procedure 166a in several respects. He contends it fails to state the specific grounds for summary judgment, does not properly constitute a no-evidence motion stating the elements of Goss’s claims for which Addax claims there was no evidence, and fails to state whether it is a no-evidence or traditional motion. We are not directed to, nor do we find, in the summary judgment record any indication that Goss brought these complaints to the trial court as special exceptions and obtained a ruling. . . . Accordingly, issue three presents nothing for our review. Tex. R. App. P. 33.1(a); . . . .Because the judgment is final and appe alable and Goss’s objections to Addax’s motion were not preserved, we overrule issues two and three.” Goss v. Addax Minerals Fund, 2016 Tex. App. LEXIS 4234, *5-6 (Tex. App. Amarillo Apr. 21, 2016)
  • Turnover: “Khan filed a response to Chaudhry’s motion for a turnover order, and he participated in the hearing that resulted in the issuance of a turnover order. The appellate record does not contain a motion to modify the order granting Chaudhry’s application for a turnover order. Khan filed a motion to abate the suit after the trial court signed the turnover order, and he participated in a contempt hearing regarding his failure to sign documents to implement a transfer of Xenon Texas to Chaudhry. However, at no point discernable from the appellate record did Khan complain to the trial court that the order required him to turn over the executed documents directly to Chaudhry, as opposed to a sheriff or constable. Khan failed to preserve this issue for appellate review.” Khan v. Chaudhry, 2016 Tex. App. LEXIS 4163, *3 (Tex. App. Beaumont Apr. 21, 2016)

All for now. Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

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