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

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