Error Preservation in Texas Civil Cases August 27, 2017

August 26, 2017

Dear All:

You have to get a ruling on your objections, and just because you lost on the merits in a bench trial does not necessarily mean the trial court implicitly overruled the objections you made:

  • Attorney’s Fees: “The trial court awarded the City attorney’s fees in the final judgment. The Trevinos argue that by awarding the City attorney’s fees, the trial court implicitly denied the Trevinos’ motion and overruled [*20] their objections at the bench trial. A trial court’s judgment determining the merits of a party’s request for attorney’s fees in a bench trial and a trial court’s ruling on objections to the admissibility of evidence submitted in support of that request are neither alternatives nor concomitants. . . . A trial court’s ruling on one does not imply a ruling on the other. . . . In short, a trial court’s ruling on objections to evidence at a bench trial or on a motion to exclude this evidence is not implicit in its judgment on the merits after the bench trial; it is not reasonable to conclude that the trial court sustained or overruled the objections or granted or denied the motion to exclude based on the trial court’s judgment on the merits.. . . Thus, it is not reasonable to conclude that by awarding the City attorney’s fees the trial court implicitly denied the Trevinos’ motion to exclude or overruled their objections. . . .Because the Trevinos failed to secure a ruling, they waived the objections.” Trevino v. City of Pearland, No. 14-16-00298-CV, 2017 Tex. App. LEXIS 8093, at *19-20 (App.—Houston [14th Dist.] Aug. 24, 2017)

Your complaint must be timely:

  • Arbitration: “The threshold question is whether appellant timely filed a motion to vacate or modify the arbitration award. The parties agree the TAA applies. Under the TAA, “[a] motion to vacate, to modify, or to correct an arbitration award must be raised or considered before or simultaneously with a motion to confirm the award.” . . . . Further, “a party that moves to vacate, to modify, or to correct an arbitration award, and adduces evidence in support, only after the award has been confirmed and final judgment rendered has waived that challenge—or, at least, a trial court does not abuse its discretion if it overrules such a post-judgment motion.” . . . . RCC filed a motion to confirm the arbitration award in the trial court on March 8, 2016. Appellant was aware of the filing of this motion, had an opportunity to challenge the award, and failed to do so. While appellant filed a “Claimant’s Motion to Correct Award” with the AAA on March 16, 2016, before the trial court confirmed the arbitration award, appellant did not challenge the arbitration award in the trial court until after the award was confirmed and final judgment rendered. . . . On this record, we conclude the trial court did not abuse its discretion by denying appellant’s untimely “Motion for New Trial and Motion to Modify Arbitration Holding.”Quickset Concrete, Inc. v. Roeschco Constr., Inc., No. 05-16-00509-CV, 2017 Tex. App. LEXIS 7739, at *8-9 (App.—Dallas Aug. 15, 2017)

You must comply with the pertinent rules:

  • Recusal: “In Bailey’s suit seeking to modify the parent-child relationship that she filed in May 2016, Bailey filed a motion to recuse the trial judge on July 13, 2016, the trial court signed an order on July 20, 2016, denying the motion to recuse, and a judge assigned by the regional administrative judge also signed an order on August 10, 2016, denying the motion to recuse. See Tex. R. Civ. P. 18a. To the extent Bailey is complaining about bias by the trial court in the underlying proceeding of this appeal, she has failed to preserve error. See id. (requiring verified motion asserting one or more grounds listed in rule 18b and not “based solely on the judge’s ruling in the case”);” Bailey v. Gasaway, No. 03-16-00281-CV, 2017 Tex. App. LEXIS 7968, at *11 n.4 (App.—Austin Aug. 22, 2017)

The rest of the error preservation rulings I  ran across in the last couple weeks all involved the failure of parties to raised their complaint at all in the trial court, so I decided to not burden this blog with them

I hope this helps.  Y’all take good care.

Yours,

Steve Hayes

www.stevehayeslaw.com

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