Texas Error Preservation Update, November 11, 2017

November 11, 2017

Dear All:

Since I’m running about a week behind, I won’t include those cases in which the parties failed to raise their complaint at all in the trial court:

Lack of standing, as we know, can be raised for the first time on appeal:

  • Standing: “In its brief, Peoples asserts that the Administrator waived her complaint that it lacked standing in the Probate Court because she first raised the issue in her motion for new trial, because the parties entered into a Rule 11 Agreement regarding the issues to be decided by the Probate Court, and because she should have raised the issue by way of motion in limine before the other issues were tried. Although standing may be challenged by a plea to the jurisdiction, since it is a component of subject-matter jurisdiction, it cannot be waived and can be challenged for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); In re Estate of Velasco, 214 S.W.3d 213, 216 (Tex. App.—El Paso 2007, no pet.). Further, as a component of subject-matter jurisdiction, standing may not be conferred by agreement.” In re Estate of Chapman, No. 06-17-00051-CV, 2017 Tex. App. LEXIS 10478, at *6 n.5 (App.—Texarkana Nov. 9, 2017)

In terms of the timeliness of an objection to an expert witness, it remains a good idea to move to exclude the testimony before trial, and when the evidence is offered, though if you have done the former that may allow some delay in the latter :

  • Expert witness: “We begin by addressing Theis’s argument that Goodyear’s objection to Woehrle’s testimony was not timely. Theis maintains that because Goodyear did not object during or immediately after Woehrle’s testimony—but instead waited until the day after to assert its motion to strike Woerhle’s testimony—Goodyear failed [*5] to preserve error regarding the reliability of Woerhle’s testimony. We disagree. A party can “preserve a complaint that the scientific evidence is unreliable [by objecting] to the evidence before trial or when the evidence is offered.” Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Here, Goodyear objected to the reliability of Woerhle’s opinion testimony in a pretrial motion to strike and then later—on the same day as, but after a different witness testified—moved for a directed verdict. And then the next morning, Goodyear moved to strike Woehrle’s testimony on various reliability grounds. . . . .Under these circumstances, we cannot say that Goodyear’s objection came too late.” Theis v. Goodyear Tire & Rubber Co., No. 03-16-00266-CV, 2017 Tex. App. LEXIS 10336, at *4-5 (Tex. App.—Austin Nov. 3, 2017)

Should you, heaven forbid, have to deal with a sanctions order, here is how you preserve error as to the particularity of the trial court’s grounds for sanctions:

  • Sanctions: “After the trial court found that Pajooh’s allegations were groundless and granted appellees’ motion for sanctions during the hearing on the motion, Pajooh informed the court that he needed to know the basis for the court’s finding that his claims were groundless and brought in bad faith. In his motion for new trial, Pajooh argued that the trial court committed reversible error by failing to comply with Rule 13’s particularity requirement. Because he raised a challenge to the trial court’s sanctions order based on the lack of particularity in a post-judgment motion and requested fact findings supporting [*10] the trial court’s conclusion that his claims were groundless and brought in bad faith, we conclude that Pajooh has preserved this issue for our review.” Pajooh v. Miller, No. 01-16-00927-CV, 2017 Tex. App. LEXIS 10181, at *9 (Tex. App.—Houston [1st Dist.] Oct. 31, 2017)

In a lengthy discussion of the facts of the case and other cases it distinguished, the Fourteenth Court held that a defendant did not waive its motion to dismiss for failure to file an expert report by not filing it for a while:

  • Expert Report: “Based on the record before us, we conclude that Colonnades’s actions were not inconsistent with an intent to assert the right to dismissal under section 74.351 and did not waive that right. See Jernigan, 111 S.W.3d at 157; Seifert, 2008 Tex. App. LEXIS 9595, 2008 WL 5341045, at *1-3; cf. Spinks v. Brown, 211 S.W.3d 374, 378-79 (Tex. App.—San Antonio 2006, no pet.) (finding waiver of the right to seek dismissal by party that (1) fully participated in pretrial discovery; (2) fully participated in a jury trial and an appeal; (3) filed motion to dismiss after reversal on appeal and one month before the start of a second trial; (4) waited 1,400 days before filing the motion to dismiss; and (5) stated during the motion to dismiss hearing that he intentionally chose not to raise the expert report issue before the first trial); [*31] In re Sheppard, 197 S.W.3d 798, 801-02 (Tex. App.—El Paso 2006, orig. proceeding) (finding waiver of the right to seek dismissal by party that (1) waited 1,183 days to move for dismissal; (2) extensively participated in and completed discovery; and (3) announced ready for trial). Therefore, the trial did not err by concluding that Colonnades did not waive its right to seek dismissal of the case under section 74.351.” Alexander v. Colonnades Health Care Ctr. Co., No. 14-16-00500-CV, 2017 Tex. App. LEXIS 10167, at *30-31 (Tex. App.—Houston [14th Dist.] Oct. 31, 2017)

You must preserve a factual sufficiency point in a motion for new trial:

  • Factual Sufficiency: “After a jury trial, a complaint (1) that the evidence was not factually sufficient to support a jury’s finding or (2) that a jury’s finding was against the great weight and preponderance of the evidence must be raised in a motion for new trial or it is waived. See Tex. R. Civ. P. 324(b); . . . . D. Factual Sufficiency Challenges. Although Appellants waived their legal sufficiency challenges, they preserved their factual sufficiency complaints in their motion for new trial. Appellants argue the jury’s failure to find bribery is against the great weight of the evidence.” Cotter & Sons, Inc. v. BJ Corp., No. 04-16-00186-CV, 2017 Tex. App. LEXIS 9995, at *7-8 (Tex. App.-San Antonio Oct. 25, 2017)

Your complaint at trial must be the same complaint you make on appeal:

  • Evidence: “Garcia and Hicks’s only objection in the trial court to Exhibit 11 (the final order in the administrative proceeding) was that it was not a final order because it had been appealed. However, Garcia and Hicks now argue on appeal that the trial court abused its discretion in admitting Exhibit 11 because it was not relevant and its probative value was substantially outweighed by the danger of unfair prejudice. Garcia and Hicks may not advance a complaint on appeal that is different from the objection they made at trial. . . . .; Tex. R. App. P. 33.1(a). We conclude that Garcia and Hicks have failed to preserve their complaints about Exhibit 11 for appellate review.” Garcia v. Davila, No. 04-16-00733-CV, 2017 Tex. App. LEXIS 9984, at *7 (Tex. App.—San Antonio Oct. 25, 2017)
  • Jury Charge: “In their objections to the jury charge appellants stated, with respect to Question No. 16: “The question is not material to any issue in this cause. As such, there in [sic] legally no evidence and factually insufficient evidence for the submission.” Although appellants raised the issues of legal and factual sufficiency in their objections to the jury charge, their reasoning was that the question was immaterial to any issue in the underlying action. On appeal, appellants present an entirely different argument, contending it was error to submit the question because the debts from Dr. Tarbox’s contracts were incurred before forfeiture of corporate privileges. Because appellants failed to present the same challenge on appeal as they did in their objections to the jury charge, the alleged error has been waived for appeal.” Lowry v. Tarbox, No. 04-16-00416-CV, 2017 Tex. App. LEXIS 9990, at *34 (Tex. App.—San Antonio Oct. 25, 2017)

You have to comply with the pertinent rules:

  • Capacity: “The record reflects that ATS raised the issue of ADE’s failure to register in an answer and a plea to the jurisdiction. The appropriate procedural device to challenge ADE’s capacity to maintain suit would have been through a verified motion to abate or a verified plea in abatement. . . . By failing to file a verified motion to abate or plea in abatement, ATS has waived its complaint regarding ADE’s capacity to sue.” Hunt v. City of Diboll, No. 12-17-00001-CV, 2017 Tex. App. LEXIS 10430, at *53 (App.—Tyler Nov. 8, 2017)
  • Dismissal: “The record reflects that the court appointed the Department as emergency temporary conservator of Brie in April 2016. Therefore, the dismissal date pursuant to Section 263.401 could have become appropriate in April 2017. See Act [*7] of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, sec. 263.401, Tex. Gen. Laws 2108, 2112-13 (amended 1997, 2001, 2005, 2007, 2015, 2017). After an extension was granted, the trial on the merits in this case did not commence until July 31, 2017. However, Della failed to file a motion to dismiss the suit prior to the commencement of the trial. Therefore, Della waived her right to object to the court’s failure to dismiss the suit.” In re B.H.R., No. 06-17-00081-CV, 2017 Tex. App. LEXIS 10352, at *6-7 (App.—Texarkana Nov. 7, 2017)
  • Evidence: “In order to preserve the issue for appellate review, whether it is the testimony of one’s own witness or that of the opponent, the appellant must make an offer of proof or a bill of exception to show what the witness’s testimony would have been. In re A.M., 418 S.W.3d 830, 840 (Tex.App.–Dallas 2013, no pet.); see also Perez v. Lopez, 74 S.W.3d 60, 66-67 (Tex.App.–El Paso 2002, no pet.); Anderson v. Higdon, 695 S.W.2d 320, 325 (Tex.App.–Waco 1985, writ ref’d n.r.e.). The appellate court cannot make a harm analysis without an offer of proof unless the substance was apparent from context. In re A.M., 418 S.W.3d at 840. General comments on the nature of the testimony, the reason it is being offered, or why it is admissible are not sufficient. Id. The appellate court may be able to discern from the record the nature of the evidence and the propriety of the [*8] trial court’s ruling, but without an offer of proof it cannot make a harm analysis because it cannot speculate what would have been asked or how a witness would have responded.” Hernandez v. Moss, No. 08-13-00315-CV, 2017 Tex. App. LEXIS 10572, at *7-8 (App.—El Paso Nov. 9, 2017)
  • Findings: “Fox-Gibson did assert her right to a portion of the TRS plan benefits accruing during her marriage to Gibson in her application. However, after the probate [*13] court entered its findings of fact and conclusions of law that did not contain any determination of what portion, if any, of the TRS plan benefits was community property, Fox-Gibson did not request additional findings of fact and conclusions of law. By failing to timely request additional findings and conclusions, Fox-Gibson forfeited her complaints related to the trial court’s failure to determine what portion of the plan benefits was community property or her entitlement to them.” Estate of Gibson, No. 06-17-00059-CV, 2017 Tex. App. LEXIS 9963, at *12-13 (Tex. App.—Texarkana Oct. 25, 2017)
  • Peremptory Strikes: “To preserve error with respect to a trial court’s failure to dismiss a veniremember for cause, an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use. . . . . ; see Tex. R. App. P. 33.1. Here, challenges for cause were asserted as to the complained-of veniremembers, but it is unclear from the record as to which attorney asserted those challenges. In any event, the record reflects that C.S.’s counsel did not request a peremptory strike on either veniremember 11 or veniremember 13, did not exhaust his peremptory strikes, and did not request additional peremptory strikes. Accordingly, this part of C.S.’s fourth issue has not been preserved for review, and we overrule it.” In the Interest of K.R., No. 13-17-00281-CV, 2017 Tex. App. LEXIS 10021, at *11 (Tex. App.—Corpus Christi Oct. 26, 2017)
  • Property Division: “Finally, Fox-Gibson asserts that the probate court erred in denying Fox-Gibson any portion of the TRS plan benefits. Fox-Gibson argues that the probate court should have found that she was entitled to a portion of the TRS plan benefits by reason of (1) the improvements to the benefits during her marriage to Gibson, (2) a right to reimbursement, and (3) the portion accrued during marriage. First, Fox-Gibson did not assert a cause of action asserting a theory of recovery based on either a right of reimbursement or improvements to the TRS plan benefits during marriage. Since she did not assert those theories of recovery in the probate court, the complaints were not preserved for our review. Tex. R. App. P. 33.1(a)(1) (requiring a timely request to the trial court as a prerequisite to presenting a complaint for appellate review).” Estate of Gibson, No. 06-17-00059-CV, 2017 Tex. App. LEXIS 9963, at *12 (Tex. App.—Texarkana Oct. 25, 2017)
  • Waiver: “Godoy contends on appeal that permitting a waiver of section 51.003(a)’s [*9] two-year statute of limitations contravenes public policy because a waiver of a statute of limitations is permissible only when the waiver is specific and limited to a reasonable time period.. . .According to Godoy’s appellate brief, “A general agreement in advance to waive or not plead the statute of limitations on a particular obligation is void as against public policy.” We need not address Godoy’s contention that the waiver provision to which he agreed is void. This is so because he did not affirmatively plead this “matter constituting an avoidance or affirmative defense” in his answer as required under Texas Rule of Civil Procedure 94.” Godoy v. Wells Fargo Bank, N.A., No. 14-16-00599-CV, 2017 Tex. App. LEXIS 10173, at *8-9 (Tex. App.—Houston [14th Dist.] Oct. 31, 2017)

You have to get a trial court ruling on your complaint:

  • Consolidation: “Cogsdil first asserts the trial court abused its discretion by denying his motion to consolidate Fincher’s appeal from justice court with Cogsdil’s suit against Fincher and the other parties. . . . As noted, no written order denying Cogsdil’s motion to consolidate was made part of the record. Nothing is therefore preserved for our review and the issue is waived. Tex. R. App. P. 33.1(a)(2) (the record must show the trial court ruled on the motion, either expressly or implicitly).” Cogsdil v. Jimmy Fincher Body Shop, LLC, No. 07-16-00303-CV, 2017 Tex. App. LEXIS 10166, at *3-4 (Tex. App.—Amarillo Oct. 30, 2017)
  • Pleadings: “Fox-Gibson also faults the probate court’s refusal to consider her motion to strike Ward’s petition. She points to an exchange at a hearing on her objections to the proposed judgment, which occurred several months after the final hearing. However, the record of this hearing shows that, when Fox-Gibson attempted to assert her motion to strike at that hearing, the probate court responded that the motion had been heard at a docket control conference hearing, which took place over a month before the final hearing. Fox-Gibson did not include the transcript of the docket control conference hearing in the reporter’s record. HN5 When an appellant fails to bring forward a complete reporter’s record, we must presume that it would support the probate court’s assertion that the motion had been previously heard and decided. . . . . Further, even assuming the exchange at the post-trial hearing showed the probate court refused to rule on her motion to strike, to preserve any complaint for appellate review, Fox-Gibson was required to object to the refusal. See Tex. R. App. P. 33.1(a)(2)(B). The record shows she failed to object to the court’s refusal to rule on her motion. Therefore, Fox-Gibson has failed to preserve this complaint for our review.” Estate of Gibson, No. 06-17-00059-CV, 2017 Tex. App. LEXIS 9963, at *8 n.5 (Tex. App.—Texarkana Oct. 25, 2017)

You have to make your complaint timely:

  • Affidavit: “And the affidavit to which she refers was attached to her motion to set aside the divorce decree and motion for new trial, filed after the hearing on her motion to set aside the informal settlement agreement, and was not before the trial court in ruling on Kramer’s motion to set aside the informal settlement agreement. See Tex. R. App. P. 33.1(a).” Kramer v. Kastleman, No. 03-13-00133-CV, 2017 Tex. App. LEXIS 10326, at *19 (Tex. App.—Austin Nov. 3, 2017)
  • Venue: “We conclude that the trial court reasonably could have determined that David’s delay in seeking a hearing and a ruling on his venue motion, along with his filings [a summary judgment response and continuance motion] that were not subject to his venue objection, amounted to a waiver of his venue objection.” Smith v. Smith, No. 14-16-00467-CV, 2017 Tex. App. LEXIS 10524, at *9 (App.—Houston [14th Dist.] Nov. 9, 2017)

I hope this helps. Y’all take care.


Steve Hayes



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