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.


Steve Hayes


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