Error Preservation in Texas Civil Cases, November 26, 2017

 

November 26, 2017

Dear All:

A party resisting sanctions did not have to use the phrase “death penalty” to preserve its complaints about sanctions on appeal, since it “strenuously opposed” the imposition of sanctions, and said why :

  • Sanctions: “We agree with [*12] Bryant that relators did not utilize the phrase “death penalty” in their response to the motion for sanctions and they did not utilize that phrase at the hearing. It is clear that HN5 arguments that are not presented to the trial court will not be considered in a petition for writ of mandamus. See In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1991) (orig. proceeding); In re Abney, 486 S.W.3d 135, 138 (Tex. App.—Amarillo 2016, orig. proceeding); In re Advance Payroll Funding, Ltd., 254 S.W.3d 710, 714 (Tex. App.—Dallas 2008, orig. proceeding). However, relators strenuously opposed the imposition of sanctions by written response and by copious argument before the trial court. They argued that sanctions were not appropriate given that they had produced the discovery at issue, the discovery period extended through the end of November, and that Rule 215 did not allow for the requested sanction. Under these circumstances, we do not believe that the omission of the phrase “death penalty” in relators’ pleadings or argument was fatal to relators’ defenses to the imposition of sanctions. See generally Tex. R. App. P. 33.1.” In re Nueces Hosp. GP, LLC, No. 13-17-00453-CV, 2017 Tex. App. LEXIS 10691, at *11-12 (App.—Corpus Christi Nov. 14, 2017)

Here are a couple of cases in which the court held that the party preserved its complaint about the nature of the notice given:

  • Notice: “In his reply brief, Allibone argues that appellees “for the first time ever” in their brief to this Court represent that the letter notifying him of the complaint “[did] not really disclose the actual nature of the complaint being investigated” and that the trial court’s consideration of the complaint in “secretive proceedings” to the extent it varied in substance from the notification letter amounted to reversible error. Allibone misconstrues appellees’ position. Consistent with their arguments before this Court, appellees’ arguments to the trial court included that the Board’s investigation was driven by the scope of the complaint, that it was not required to provide a detailed list of the allegations but the general “nature of the complaint,” and that the notice to Allibone complied with this requirement.” Allibone v. Robinson, No. 03-17-00360-CV, 2017 Tex. App. LEXIS 10883, at *14 n.5 (App.—Austin Nov. 21, 2017)
  • Notice: “In his reply brief, Allibone argues that appellees “for the first time ever” in their brief to this Court represent that the letter notifying him of the complaint “[did] not really disclose the actual nature of the complaint being investigated” and that the trial court’s consideration of the complaint in “secretive proceedings” to the extent it varied in substance from the notification letter amounted to reversible error. Allibone misconstrues appellees’ position. Consistent with their arguments before this Court, appellees’ arguments to the trial court included that the Board’s investigation was driven by the scope of the complaint, that it was not required to provide a detailed list of the allegations but the general “nature of the complaint,” and that the notice to Allibone complied with this requirement. See Tex. Occ. Code § 154.053 (requiring Board to notify physician of “nature of the complaint”).” Allibone v. Freshour, No. 03-17-00357-CV, 2017 Tex. App. LEXIS 10884, at *13 n.6 (App.—Austin Nov. 21, 2017)

You must comply with other pertinent rules to preserve your complaint:

  • Indispensable Party: “The record does not reflect that appellant attempted to join his wife as an indispensable party at any point in this forcible detainer action, either in the justice court or the county court at law. Nor did he raise the issue in a verified objection. See Tex. R. Civ. P. 93(4) (requiring a party to verify “[t]hat there is a defect of parties, plaintiff or defendant.”). He raised the issue of his wife’s non-joinder in his response to Fannie Mae’s motion for summary judgment, but raising a parties defect challenge in a response to a [*5] motion for summary judgment will not preserve the issue for review. . . . As a result, appellant failed to preserve any complaint regarding his wife’s non-joinder and cannot raise it on appeal.” Feuerbacher v. Fannie Mae, No. 05-16-01117-CV, 2017 Tex. App. LEXIS 10934, at *4-5 (App.—Dallas Nov. 21, 2017)

The complaint you raise on appeal must be the complaint you raised at trial:

  • Evidence: “Benson does not direct us to any point in the record in which she asserted in the trial court that Maddox’s statement, contained in the collision report, constitutes a present sense impression. Thus, her stated ground for admission in the trial court does not comport with her ground raised on appeal, and error, if any, is waived.” Benson v. Chalk, No. 01-16-00112-CV, 2017 Tex. App. LEXIS 10907, at *18 (App.—Houston [1st Dist.] Nov. 21, 2017)

 

There were several cases addressing situations where the party failed to raise his, her, or its complaint in the trial court, but I’ll not burden you with hose.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

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