Error Preservation Update, September 17, 2017

September 17, 2017

Dear All:

Once again, I’ve left off the cases in which parties simply did not raise their complaints in the trial court.

Some complaints one can raise for the first time on appeal–for example, the sufficiency of evidence in a bench trial to support the reasonableness of attorney’s fees:

  • Attorney’s Fees: “Huey-You also argues that the amount of the award was supported by insufficient evidence to show that it was either necessary or reasonable. As with his segregation argument, Huey-You failed to object to the quantum or quality of the evidence regarding the reasonableness of the requested attorney’s fees when the evidence was presented to the trial court. But reasonableness is a fact issue to be determined by the fact-finder; therefore, a challenge to the reasonableness of fees is a challenge to the sufficiency of the evidence to support the award, which may be raised for the first time on appeal. [*8] See Tex. R. App. P. 33.1(d);” Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, at *7-8 (Tex. App.—Fort Worth Sep. 14, 2017)

There were a whole host of cases in which parties preserved error:

  • Arbitration: “Comporting with these requests for arbitration in the trial court, on appeal, appellant challenges, among other aspects of the final decree that are unrelated to the arbitration requests, (1) language within the decree concerning the child’s health insurance, (2) the trial court’s resolution of how the parties should partition taxes, (3) matters related to toll charges and insurance [*16] on the Lexus, and (4) the just and right division of assets that appellee had allegedly not disclosed at mediation. We therefore reject appellee’s argument that appellant waived his right to arbitration on the ground that “issues complained of in [a]ppellant’s [request for arbitration in the trial court] are wholly different than those presented in this appeal.”” S.P. v. N.P., No. 02-16-00278-CV, 2017 Tex. App. LEXIS 8361, at *15-16 (Tex. App.—Fort Worth Aug. 31, 2017)
  • Continuance: “Mother’s counsel moved to abate the trial after the trial court denied her motion to exclude the evidence of adoption by a nonrelative, in the context of arguing that section 263.0021 had not been complied with. But counsel also raised the other three family code sections in the trial court in the context of his exclusion-of-evidence request, and he urged the trial court to resolve that issue “short of a trial.” Thus, we conclude he requested that the trial court not “move forward” because of a lack of compliance with those sections of the family code as well. See Tex. R. App. P. 33.1(a)(1).” In the Interest of J.N., No. 02-17-00179-CV, 2017 Tex. App. LEXIS 8544, at *15 n.3 (Tex. App.-Fort Worth Sep. 7, 2017)
  • Discovery: “Here, Cho clearly and unequivocally objected to each of the 116 requests for production on the grounds that they were “not relevant to the jurisdictional facts plead and essential to justify plaintiff’s opposition to the special appearance.” Rather than consider the merits of those objections, the trial court merely overruled all of Cho’s objections, finding that they were “obscured” by “numerous unfounded objections and therefore waived.” In effect, the trial court gave GTC carte blanche to engage in full merits-based document discovery despite the pendency of Cho’s special appearance. This was a clear abuse of discretion.” In re Jaeman Cho, No. 02-17-00254-CV, 2017 Tex. App. LEXIS 8547, at *4 (Tex. App.—Fort Worth Sep. 7, 2017)
  • Exemplary damages: “Asserting the same arguments it makes on appeal, Goodyear responded by referring to the statutory “economic damages” definition and arguing that there was (i) no evidence that either daughter suffered any actualized monetary losses and (ii) no legally or factually sufficient evidence that Vicki suffered actualized monetary losses beyond the $30,000 for yard services and $170,000 in medical expenses discussed in Part II.C.9. The trial court was thus fully apprised of the parties’ agreement that actual economic or pecuniary losses were required to calculate awardable exemplary damages in this case. By rejecting Goodyear’s arguments and entering judgment on the verdict, the trial court impliedly found that the jury-found pecuniary losses were also actual pecuniary losses. Tex. R. Civ. P. 279. Goodyear’s response to appellees’ motion for judgment preserved Goodyear’s trial court argument for appeal. See Tex. R. App. P. 33.1(a).” Goodyear Tire & Rubber Co. v. Rogers, No. 05-15-00001-CV, 2017 Tex. App. LEXIS 8382, at *30 n.2 (Tex. App.—Dallas Aug. 31, 2017)
  • Motions: “Guevara additionally argues, however, that Rodriguez waived any objection to the sufficiency of the enforcement motions by not raising special exceptions to the motions prior to trial, citing Texas Rules of Civil Procedure 90 and 91. We note that, although no written response is in our record, these objections were the very subject of Rodriguez’s motion for judgment and the judge was made aware of them before the judgment was signed. In any event, these rules do not support Guevara’s position. . . . Because Rodriguez is not the party seeking reversal in this case, Rule 90 could have no application to her complaints regarding Guevara’s enforcement motions. . . .Rule 91 merely requires special exceptions be specific and intelligible and therefore has no application under these circumstances. [*13] Finding no merit in any of Guevara’s arguments concerning the trial court’s denial of his motions to enforce, we overrule his second issue.” In the Interest of A.G., No. 14-16-00341-CV, 2017 Tex. App. LEXIS 8614, at *12-13 (Tex. App.—San Antonio Sep. 12, 2017)

Your complaint must comply with the pertinent rules:

  • Evidence: “Crawford did not explain to the trial court why her testimony regarding [*9] the oral statements of Emmons was admissible. Further, since Crawford did not make an offer of proof or file a formal bill of exceptions as to what her testimony would have been, we have no record to enable us to determine whether the testimony would have been admissible. Therefore, any error in the trial court’s ruling has not been preserved for our review.” In re Estate of Emmons, No. 06-17-00007-CV, 2017 Tex. App. LEXIS 8476, at *8-9 (Tex. App.-Texarkana Sep. 7, 2017)
  • Findings and Conclusions: “While the record reflects that Evelyn filed a request for findings of fact and conclusions of law, when the trial court failed to file its findings and conclusions, Evelyn did not file a notice of past due findings within thirty days of her original request. See Tex. R. Civ. P. 297. As a result of this failure, we imply all necessary findings to support the trial court’s order.” In re January, No. 12-16-00335-CV, 2017 Tex. App. LEXIS 8461, at *4 (Tex. App.—Tyler Sep. 6, 2017)
  • Quantum Meruit: “In its fourth issue, the Law Office contends that, even if it is not entitled to recover under the contingent-fee agreement, the trial court erred in granting Deadman’s motion for summary judgment because the Law Office is [*9] entitled to recover in quantum meruit. However, the Law Office did not plead a quantum meruit claim in the trial court. Therefore, it has waived any quantum meruit claim it may have had. See Tex. R. Civ. P. 166a(c); see also Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990) (per curiam) (“While the theory of quantum meruit might have provided Redden with an alternate ground of recovery, Redden did not plead this theory. The failure to plead quantum meruit is more than relevant to the outcome of this case; it is dispositive.”) (citation omitted). Accordingly, we overrule the Law Office’s fourth issue.” Law Offices of John S. Young, P.C. v. Deadman, No. 03-17-00148-CV, 2017 Tex. App. LEXIS 8661, at *8-9 (Tex. App.—Austin Sep. 13, 2017)

You must obtain a ruling on your complaint from the trial court, which can be implied:

  • Affidavit: “In its petition, ESA argues Carlson’s affidavit, appended to the response to ESA’s venue motion, contained inadmissible parol evidence. The Carlsons argue the affidavit merely reflects the factual background of the transaction. We need not address the issue. The record does not contain a ruling by the trial court on a parol evidence objection. Tex. R. App. P. 33.1(a);” In re Energy Servs. Acquisitions II, No. 07-17-00252-CV, 2017 Tex. App. LEXIS 8626, at *3 n.3 (Tex. App.—Amarillo Sep. 11, 2017)
  • Sanctions: “An appellate court may not address the merits of an issue that has not been preserved for appeal. To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. See Tex. R. App. P. 33.1. As a result, a party must take proper action to make the trial court aware of the complaint and obtain a ruling, either express or implied. See Tex. R. App. P. 33.1(a); . . . .The record shows that on March 23, 2012, Scott Pelley P.C. [*79] and Pelley filed a motion to impose sanctions. On June 4, 2012, at the conclusion of a pretrial hearing on several motions, the trial court carried the motion for the imposition of sanctions, stating: “[The] [m]otion [for] [c]ontempt and for [s]anctions is to be carried along and heard at the time of trial, so that will be part of the evidence at that time, so I’ll hear it and then make a ruling on that if I can’t talk you guys into resolving this thing.” However, the record does not contain an order denying the motion for the imposition of sanctions. The record shows that after a trial on the merits, the trial court signed a final judgment stating that “[a]ll other relief not expressly granted is denied.”. . . . The trial court’s judgment was a final judgment that had the effect of denying the motion for the imposition of sanctions. See Lehmann, 39 S.W.3d at 195; In re A.B.P., 2013 Tex. App. LEXIS 10746, 2013 WL 4568012, at *5; Memphis, Inc., 2005 Tex. App. LEXIS 5867, 2005 WL 1774973, at *2. Accordingly, we conclude Scott Pelley P.C. and Pelley obtained a ruling on their motion for the imposition of sanctions preserving the second part of issue seven for appellate review.” Scott Pelley P.C. v. Wynne, No. 05-15-01560-CV, 2017 Tex. App. LEXIS 8228, at *78-80 (Tex. App.—Dallas Aug. 28, 2017)

You must make your complaint in a timely fashion:

  • Administrative Law: “In his reply brief, Dr. Swate emphasizes that the Board violated Board Rule 187.28(b)(1)(C), which required an expert report to set out the standard of care specifically. See 22 Tex. Admin. Code § 187.28(b)(1)(C) (2010) (Tex. Med. Bd., Discovery), repealed by 39 Tex. Reg. 3959 (2014), adopted by 39 Tex. Reg. 5749 (2014). In support of his argument, Dr. Swate cites a finding by the ALJs that Dr. Powell did not identify a standard of care and apply it to Dr. Swate’s practice in violation of Rule 187.28(b)(1)(C). However, this finding was particular to the standard of care regarding periodic problem-focused medical examinations, an allegation for which Dr. Swate was not found to be in violation of the Act. Additionally, this alleged violation by the Board was not raised to the ALJs, and therefore was not preserved for appeal. See Tex. R. App. P. 33.1.” Swate v. Tex. Med. Bd., No. 03-15-00815-CV, 2017 Tex. App. LEXIS 8291, at *16 n.6 (Tex. App.—Austin Aug. 31, 2017)
  • Administrative Law: “Dr. Swate alleges the Board violated section 164.005 of the Act, which requires that a formal complaint allege with reasonable certainty each specific act allegedly constituting a violation of a specific statute or rule. See Tex. Occ. Code § 164.005(f). In the proceedings below, the Board was ordered to amend its complaint twice in response to motions by Dr. Swate requesting more specific allegations. However, Dr. Swate raised no objection to the Board’s Second Amended Complaint, the live pleading at the time of the hearing. Because this alleged violation was not preserved for appeal, we do not consider it. See Tex. R. App. P. 33.1.” Swate v. Tex. Med. Bd., No. 03-15-00815-CV, 2017 Tex. App. LEXIS 8291, at *16 n.7 (Tex. App.—Austin Aug. 31, 2017)
  • Arbitration: “appellant contends the trial court erred by denying appellant’s “Motion for New Trial and Motion to Modify Arbitration Holding” because (1) there was an evident miscalculation [*13] by the arbitrator and (2) the arbitrator “exceeded his authority in assessing RCC’s legal fees and arbitration costs against Appellant who should have been found to be the prevailing party.” . . .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.” Hamm, 178 S.W.3d at 269. 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.” Id. at 268. RCC filed a motion to confirm the arbitration [*14] 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. Cf. Sydow v. Verner, Liipfert, Bernhard, McPherson & Hand, Chartered, 218 S.W.3d 162, 171 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (concluding appellant did “timely place[] the issue of prejudgment interest before the court when he applied to have amended award confirmed (and when he responded to [the appellee’s] application to confirm the original award),” despite also filing a motion to reconsider in the arbitration forum); Brown v. Potter Concrete Residential, Ltd., No. 05-13-00585-CV, 2014 Tex. App. LEXIS 7080, 2014 WL 2993809, at *2 (Tex. App.—Dallas June 30, 2014, pet. denied) (mem. op.) (“Although the Browns did not specifically move to vacate the award, they did file a response arguing the applications to confirm should be denied.”). 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 8733, at *12-14 (Tex. App.—Dallas Sep. 13, 2017)
  • Attorneys’ Fees: “In a bench trial, the objection that attorney’s fees are not segregated as to specific claims must be raised before the trial court issues its ruling. Raising the issue for the first time post-judgment, such as in a motion for new trial, is untimely and any error is waived. See Horvath v. Hagey, No. 03-09-00056-CV, 2011 Tex. App. LEXIS 3451, 2011 WL 1744969, at *6 (Tex. App.—Austin May 6, 2011, no pet.) (mem. op. on reh’g); see also Red Rock Props. 2005, Ltd. v. Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037, at *6-7 (Tex. App.—Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.). Huey-You did not object based on a failure to segregate before the trial court issued its ruling and, thus, any error was waived. See Tex. R. App. P. 33.1(a)(1); see also Tex. R. Evid. 103(a).” Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, at *7 (Tex. App.—Fort Worth Sep. 14, 2017)
  • Jury Argument: “In his fifth issue, Garza contends the trial court should have granted him a new trial due to improper jury argument by Red Wing. Garza complains of the following closing argument: “In the last four and a half years, Mr. Garza has worked two months. And those two months were at Red Wing.” Garza asserts this argument was improper because it suggested he was lazy and had brought his lawsuit in bad faith. Garza did not object when this argument was made. He first raised the issue in his motion for new trial, asserting the argument was incurable. Garza’s motion for new trial was overruled by operation of law. A complaint of incurable argument may be asserted and preserved in a motion for new trial, even without an objection and ruling during the trial. . . . see Tex. R. Civ. P. 324(b)(5). Incurable jury argument [*24] is rare, however, because typically retraction of the argument or instruction from the court can cure any probable harm. . . . A party claiming incurable harm must persuade the court that, based on the record as a whole, the offensive argument was so extreme that a juror of ordinary intelligence could have been persuaded to agree to a verdict contrary to that to which she would have agreed to but for such argument. Id. Even if we assume the argument in question was improper, it did not rise to the level of incurable argument. The trial court did not abuse its discretion in failing to grant Garza a new trial due to the jury argument. We overrule Garza’s fifth issue.” De Leon v. Red Wing Brands of Am., Inc., No. 05-15-01517-CV, 2017 Tex. App. LEXIS 8229, at *23-24 (Tex. App.—Dallas Aug. 28, 2017)
  • Recusal: “”Unlike disqualification of a judge based on a constitutional prohibition, which can be raised at any point in a proceeding, a statutory basis for recusal of a judge can be waived by failing to file a motion to recuse or by failing to assert the claimed error by a point on appeal.” Sweetwater Austin Properties, L.L.C. v. SOS All., Inc., 299 S.W.3d 879, 890 (Tex. App.—Austin 2009, pet. denied); see Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982). When a judge is assigned, a party that objects to the assignment must file an objection or motion within seven days of receiving notice of the assignment. See GOV’T § 74.053(b), (c). Ferguson neither timely objected to Judge Griffin’s assignment nor filed a motion to recuse him. Therefore, she waived her complaint. Tex. R. App. P. 33.1; see GOV’T § 74.053(c);” Ferguson v. Tex. DOT, No. 11-15-00110-CV, 2017 Tex. App. LEXIS 8327, at *26 (Tex. App.—Eastland Aug. 31, 2017)

Your complaint on appeal must comport with your complaint at trial:

  • Evidence: “On appeal, William argues that the trial court should have excluded Jones’ notes under Rule 403 of the Texas Rules of Evidence. We find that he has failed to preserve this appellate point for our review. Tex. R. App. P. 33.1(a)(1). William referred to Jones’ therapy notes during his own testimony. When Jones’ therapy notes were later offered into evidence, William stated, “It’s my first time seeing them. Other than that, I don’t have any objection.” William failed to argue that the notes should be excluded under Rule 403. Therefore, he did not preserve his first point of error, which argues that “[t]he unfairly prejudiced therapy notes . . . confused the issues and mislead the court.”” In the Interest of N.V.R., No. 06-17-00023-CV, 2017 Tex. App. LEXIS 8301, at *7-8 (Tex. App.—Texarkana Aug. 31, 2017)

I hope this helps. Y’all take care.


Steve Hayes


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