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.


Steve Hayes



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