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

 

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