Error Preservation in Texas Civil Cases, December 9, 2017

December 9, 2017

Dear All:

A complaint that a party did not request summary judgment on a particular claim may be raised for the first time on appeal, as may the complaint that a justice court does not have jurisdiction over a forcible-detainer suit may be raised for the first time on appeal:

  • Summary Judgment: “Woodbury argues that Rainier waived this complaint because Rainier did not raise it in the trial court. But, as noted by Rainier, HN12 a party need not object in the trial court to a summary judgment made on grounds not expressly presented in the summary-judgment motion. See McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 342 (Tex. 1993) (“Even if the non-movant fails to except or respond, if the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law.”). We will thus entertain Rainier’s argument that summary judgment was improper on its breach-of-contract claim because Woodbury did not expressly seek summary judgment on that claim.” Rainier Southlake DST v. Woodbury Strategic Partners Fund, LP, No. 02-16-00263-CV, 2017 Tex. App. LEXIS 11407, at *26 n.12 (App.—Fort Worth Dec. 7, 2017)
  • Subject matter jurisdiction: “Reynoso obtained an adverse ruling from the county court at law on her motion to dismiss, in which she raised various jurisdictional and constitutional issues, and we presume for the sake of argument that she preserved error thereby as to all of her non-jurisdictional appellate issues. Reynoso did not need to preserve error on her challenges to the justice court’s subject-matter jurisdiction because parties may not waive challenges to subject-matter jurisdiction and may raise them for the first time on appeal.” Reynoso v. Dibs US, Inc., No. 14-16-00323-CV, 2017 Tex. App. LEXIS 11260, at *4 (App.—Houston [14th Dist.] Dec. 5, 2017)

Here is one where the party preserved a complaint about evidence of a prior conviction:

  • Evidence: “Nugent and CAO, Inc. [*23] timely objected to the introduction of evidence of Nugent’s prior conviction. When the estate offered evidence of Nugent’s prior conviction at trial, appellants’ counsel immediately objected on the grounds that the conviction was “more than ten years old and cannot be used as evidence.” The trial court permitted the estate to admit evidence of Nugent’s 2004 conviction and to engage in limited questioning of witnesses on this issue. These actions adequately preserved the evidentiary issue for appeal. See Tex. R. App. P. 33.1;” Richard Nugent & Cao, Inc. v. Estate of Ellickson, No. 14-16-00839-CV, 2017 Tex. App. LEXIS 11125, at *22-23 (App.—Houston [14th Dist.] Nov. 30, 2017)

You must comply with the other pertinent rules:

  • Affirmative Defenses: “Second, we note that all three of Duchene’s arguments, i.e., that Hernandez failed to mitigate his damages, that Duchene made payment to Hernandez, and that there was a possible accord and satisfaction, center on affirmative defenses that must be affirmatively pled by a defendant. See Tex. R. Civ. P. 94 (listing “accord and satisfaction” and “payment” as affirmative defenses that must be pled by a defendant); . . . . A defendant must expressly raise affirmative defenses of this nature in his responsive pleadings, or else he waives the right to raise them at a later time, including in a response to a motion for summary judgment. . . .; Tex. R. Civ. P. 95 (“When a defendant shall desire to prove payment, he shall file with his plea an account stating distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.”). In the present case, Duchene failed to raise any of these affirmative defenses in his response to Hernandez’s pleadings. We therefore conclude that Duchene waived his right to raise any of those defenses in response to Hernandez’s motion for summary judgment.” Duchene v. Hernandez, No. 08-15-00087-CV, 2017 Tex. App. LEXIS 11324, at *19-20 (App.—El Paso Dec. 6, 2017)
  • Factual Sufficiency: “In addition, the Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting on appeal the factual sufficiency of the evidence to support a jury finding. . . . . Where, as here, there is no motion for new trial raising factual sufficiency challenges to the jury’s verdict, “[f]actual sufficiency is not preserved for appeal.” . . . . Father’s points of error regarding legal and factual sufficiency are overruled. Accordingly, we affirm the trial court’s judgment.” In re N.N.G., No. 06-17-00080-CV, 2017 Tex. App. LEXIS 11288, at *1-2 (App.—Texarkana Dec. 6, 2017)
  • Legal Sufficiency: “On appeal, Father argues that the evidence is legally and factually insufficient to support the jury’s finding that termination of his parental rights was in the child’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2017). Because we find that Father has failed to preserve these issues for appeal, we affirm the trial court’s judgment. We have previously held that, “[a]s a prerequisite to bringing a legal sufficiency challenge in a parental-rights termination appeal following a jury trial, a parent must raise the legal sufficiency challenge with the trial court in either: “(1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict (JNOV); (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial.”” . . . . Here, [*2] because Father failed to challenge the legal sufficiency of the evidence supporting the jury’s verdict in any of the manners specified above, or otherwise before the trial court, we find that he has failed to preserve his legal sufficiency challenge for appeal.” In re N.N.G., No. 06-17-00080-CV, 2017 Tex. App. LEXIS 11288, at *1-2 (App.—Texarkana Dec. 6, 2017)
  • Nonjoinder: “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 HN1 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)
  • Statute of Frauds: “In her first issue, Mary complains that the trial court erred by implicitly finding that the statute of frauds did not bar the enforcement of the oral agreement regarding the ownership of the 40-Acre Tract. She argues that a contract for the sale of real estate is required to be in writing and signed by the person charged with the agreement, citing Section 26.01, subsections (a) and (b), of the Texas Business and Commerce Code. TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(4) (West 2015). Nevertheless, the statute of frauds is an affirmative defense that must be specifically pled, or it is waived. . . .; see also TEX. R. CIV. P. 94. Since Mary did not assert [*3] the statute of frauds in her pleadings in the trial court, any complaint regarding it has been waived.” McCurry v. Farmer, No. 06-17-00052-CV, 2017 Tex. App. LEXIS 11207, at *2-3 (App.—Texarkana Dec. 1, 2017)

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

  • Evidence: “The Fitzgeralds assume that the trial court’s ruling that King’s testimony was unreliable was based on O’Neal’s testimony. While the trial court’s letter ruling does not expressly support this assumption, we conclude that the Fitzgeralds failed to preserve any complaint regarding the admission of O’Neal’s opinion testimony. The record reflects that, after their initial objections regarding the propriety of O’Neal’s testimony and his qualifications, the Fitzgeralds did not raise any further objection to O’Neal’s testimony. Likewise, at no point did the Fitzgeralds obtain a ruling on their objections to the propriety of O’Neal’s testimony or his qualifications, so those objections are not preserved for our review. See Tex. R. App. P. 33.1(a)(2) (preservation of error generally requires trial court ruling).” Fitzgerald v. Water Rock Outdoors, LLC, No. 07-16-00330-CV, 2017 Tex. App. LEXIS 11216, at *11 (App.—Amarillo Dec. 1, 2017)
  • Severance: “By his second issue, Hyde contends the trial court’s judgment [*8] must be reversed because the court improperly severed a single cause of action when it failed to include in the severance the attorney’s fee claim associated with Hawk’s request for a declaration of his license rights. . . . After review of the record, we find the issue is not preserved for our review. Hyde filed a written objection to Hawk’s motion for severance, but the motion did not mention Hawk’s claim for attorney’s fees. The objection generally contended that severance of the license issue from Hawk’s other claims would cause “injustice, prejudice, and inconvenience” to the parties and the court by turning a single lawsuit into two, leading to two judgments and eventually requiring two appeals. The objection did not cite the Dalisa case or contend Hawk was seeking to sever a single cause of action for declaratory relief.  The rules of appellate procedure require, as a prerequisite to presentation of a complaint on appeal, that a party make a timely request, objection, or motion stating the specific grounds, and secure the court’s ruling on its request, objection, or motion, or object to the trial court’s refusal to rule. . . . Tex. R. Civ. P. 33.1 [*9] . From review of the record before us we are satisfied the trial court made no ruling on the issue presented as Hyde’s second appellate issue. The issue therefore presents nothing for our review, and is overruled for that reason.” Hyde v. Hawk, No. 07-14-00059-CV, 2017 Tex. App. LEXIS 11007, at *7-9 (App.—Amarillo Nov. 27, 2017)

You must create a record which shows the making of your complaint:

  • Record: “Husband also argues that since neither he nor his attorney were present at the May 31, 2016 hearing, they could not waive making the record that rule 13 requires and we thus must reverse the judgment. See Tex. R. App. P. 13.1(a) (court reporter must take a full record of all proceedings unless excused by agreement of the parties). However, to preserve an error for appeal, a party must object to the court reporter’s failure to record the proceedings. See Tex. R. App. P 33.1(a); . . . As we have noted, [*10] the record shows that Husband’s counsel was present at the hearing. And it is not accurate to say that counsel had no notice of the hearing—she obtained the hearing setting and served the notice. Although Husband’s counsel was present, nothing shows that she requested a record or objected to the court reporter’s failure to make one. Moreover, the trial court’s unchallenged findings state that Husband presented no evidence, and Husband does not explain how a record might facilitate our review.” Gow v. Sevener, No. 05-16-01037-CV, 2017 Tex. App. LEXIS 11196, at *9 (App.—Dallas Nov. 30, 2017)

Your complaint at trial must comport with the complaint you make on appeal:

  • Evidence: “Here, when the Department asked each witness whether they believed that Mother’s parental rights should be terminated, Mother objected on the ground that the question “[c]all[ed] for a conclusion.” No further explanation was provided. After this objection was overruled, both witnesses answered in the affirmative. We find that Mother’s objection that the Department’s question called for a conclusion was not specific enough to inform the trial court that she was objecting under Rule 701 of the Texas Rules of Evidence. “An objection at trial that does not comport with a point of error on appeal preserves nothing for review.”” M.M.W. & N., No. 06-17-00076-CV, 2017 Tex. App. LEXIS 11206, at *3 (App.—Texarkana Dec. 1, 2017)

I won’t extend this update with the cases where parties did not raise their complaints in the trial court.

I hope this helps. Y’all take care.


Steve Hayes


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