Error Preservation Update, October 21, 2017

October 21, 2017

Dear All:

Here is a case worth reading, in which the court held that the arguments made on appeal were “more accurately characterized as facts or explanations supporting” the argument that the expert’s report was “conclusory because it failed to explain how and why the breach caused the injury.” Thus, the arguments on appeal were “sufficiently similar to or encompassed by those [the parties] raised before the trial court.” The Court engaged in an extensive discussion as to why the arguments at trial preserved the arguments made on appeal:

  • Expert Report: “Davis also contends that the Hospital Parties waived the following “objections” to Dauphinee’s report because (1) they raised them for the first [*15] time on appeal and (2) they were asserted after the 21-day deadline set by the Act: • The report does not state Gordon thought the patient’s pain to be inordinate; • The report does not define “inordinate pain;” • There is no factual basis for the conclusion that Gordon would have acted had he known about new findings; and • There was no factual basis for the proposition that Davis’s overnight condition would have changed the outcome in any way. . . . the objections Davis now claims the Hospital Parties have waived cannot fairly be characterized as new objections subject to waiver. They are more accurately characterized as facts or explanations supporting the Hospital Parties’ argument that Dauphinee’s report is conclusory because it failed to explain how and why the breach caused the injury. Because the arguments Hospital Parties raise on appeal are sufficiently similar to or encompassed by those they [*19] raised before the trial court, we conclude that the Hospital Parties’ arguments were sufficiently preserved.Humble Surgical Hosp., LLC v. Davis, No. 14-16-01026-CV, 2017 Tex. App. LEXIS 9685, at *18-19 (App.—Houston [14th Dist.] Oct. 17, 2017)

When you raise limitations in your pleading, response, and briefing, you will have preserved that defense:

  • Limitations: “The county judge failed to address in his findings whether limitations barred the claims made by Reda’s estate that Reda owned the property when she died. On appeal, the Estate argues that Ray and Linda failed to properly raise limitations as a defense to its claim that the disputed tracts were owned by Reda when she died. We address the Estate’s waiver argument before we address the issues that Ray and Linda raise in their appeal. Limitations is an affirmative defense that must be affirmatively pled as a defense to another party’s claims. Tex. R. Civ. P. 94 (Affirmative Defenses). The pleadings and brief that Ray and Linda filed in the trial court raise statute of limitations defenses. A response they filed to the Estate’s motion asking that the county judge order the disputed properties delivered to the Estate raises limitations as a defense to the Estate’s request. Additionally, following the hearing, and before the county judge decided the dispute, Ray and [*8] Linda filed a brief discussing their statute of limitations defenses in detail. By awarding the tracts to Reda’s estate, the county judge implicitly rejected Ray and Linda’s claim that the Estate’s claims were barred by limitations. Tex. R. App. P. 33.1(a)(2)(A) (providing that an error is preserved if the complaint is presented in a manner sufficient to make the trial court aware of the complaint and the trial court ruled on the request, either expressly or by implication). We hold that Ray and Linda did not waive their limitations defense.” In re Estate of Allison, No. 09-16-00066-CV, 2017 Tex. App. LEXIS 9800, at *7-8 (App.—Beaumont Oct. 19, 2017)

A motion to disregard can preserve a legal sufficiency complaint:

  • Legal Sufficiency: “BGI argues Lyon did not preserve his argument that there was no or insufficient evidence to support the jury’s finding that the lien was invalid because he did not raise this argument in his motions for new trial. In his motion to disregard the jury’s answer to Question 4, however, Lyon argued that the question instructed the jury that the lien was “invalid” if the lien amount exceeded the statutory cap, and “[f]urthermore, there is no evidence to support a finding that the subject lien was even invalid.” This is sufficient to preserve his no-evidence challenge for our review. Lyon v. Bldg. Galveston, Inc., No. 01-15-00664-CV, 2017 Tex. App. LEXIS 9610, at *9 n.5 (App.—Houston [1st Dist.] Oct. 12, 2017)

You must get a ruling on your complaint:

  • Summary Judgment: “The Sellers also argue that we should consider grounds asserted in their summary judgment motions that were not ruled on by the trial court. However, grounds or motions that are not ruled on by the trial court are not preserved for appellate review and, thus, are improper for us to consider. See Tex. R. App. P. 33.1; . . . . Accordingly, we do not consider the Sellers’ argument that Raymond James lacked authority to bind any of the Sellers to a PSA with LNO because the trial court never ruled on the Sellers’ partial summary judgment based on agency principles.” Le Norman Operating LLC v. Chalker Energy Partners III, LLC, No. 01-15-01099-CV, 2017 Tex. App. LEXIS 9297, at *49 n.6 (App.—Houston [1st Dist.] Oct. 3, 2017)

Your complaint must be timely:

  • Contract: “For the first time on appeal appellees also assert that Barforough failed to establish the existence of a valid contract, noting that the record does not include a copy of the Agreement signed by Barforough. However, appellees relied on the Agreement in their summary-judgment motion and failed to challenge the Agreement in the trial court. Thus, they failed to preserve this issue for appeal. See Tex. R. App. P. 33.1.” Barforough v. Nationstar Mortg., LLC, No. 01-16-00266-CV, 2017 Tex. App. LEXIS 9414, at *7 n.3 (App.—Houston [1st Dist.] Oct. 5, 2017)
  • Jury Trial: “But a party who perfects its right to a jury trial may nevertheless waive that right by failing to act when the trial court proceeds with a bench trial. . . .To complain on appeal that it was denied its right to a jury trial, a party must object to the trial court’s action or affirmatively indicate [*5] that it intends to exercise its right to a jury trial. . . . At the April 2017 de novo hearing, Mother asserted no objection when the district court proceeded to conduct a bench trial. We see that the district court addressed the issue at the first de novo hearing in December 2016, but we also notice that months later on April 25, 2017, one day before the April 2017 de novo hearing began, Mother filed a “De Novo Hearing Brief for the Court” that specifically identified her request for a jury trial as one of the issues at the upcoming de novo hearing. In its May 2, 2017 letter informing the parties of its decision, the district court stated of Mother’s request for a jury trial, “Although this was specified as an issue for appeal, no testimony or argument was presented on this point; therefore, the matter has been waived and is denied.” Similar language is contained in the final judgment. Our review is limited to the record on appeal. Considering the conflicting state of the record, the lengthy period of time between the December 2016 and April 2017 de novo hearings, and the well-settled law on this topic, we cannot conclude that Mother was relieved of the requirement to complain [*6] when the district court proceeded without a jury at the April 2017 de novo hearing. We overrule Mother’s only issue.” In re K.H., No. 02-17-00192-CV, 2017 Tex. App. LEXIS 9388, at *4-6 (App.—Fort Worth Oct. 5, 2017)

Your complaint must comply with other rules:

  • Findings and Conclusions: “Michael did not file a notice of past due findings and conclusions after his original request for findings and conclusions was deemed filed on April 29, 2016. Thus, because Michael failed to timely file a notice of past due findings and conclusions, he waived any error in the trial court’s failure to file findings of fact and conclusions of law.” Burley v. Burley, No. 02-16-00119-CV, 2017 Tex. App. LEXIS 9582, at *6 (App.—Fort Worth Oct. 12, 2017)
  • Factual Sufficiency: “the Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting a factual sufficiency of the evidence supporting a jury finding complaint on appeal. . . . . see Tex. R. Civ. P. 324(b)(2). Since neither Mac nor Meg filed a motion for new trial challenging the factual sufficiency of the evidence supporting the jury’s verdict, their factual sufficiency complaints are not preserved for appeal.In the Interest of L.G.D. & A., No. 06-17-00061-CV, 2017 Tex. App. LEXIS 9462, at *2-3 (App.—Texarkana Oct. 10, 2017)

Because I got behind (owing to some deadlines on the day job), I won’t post the decisions in the last three weeks or so that held error was not preserved because it was not raised in the trial court.

I hope this helps. Y’all take care.


Steve Hayes


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