Error Preservation in Texas Civil Cases, December 23, 2017

December 23, 2017

Dear All:

The Supreme Court recently held that “‘parties are free to construct new arguments’ in support of unwaived issues”:

  • “In general, an “issue” is a “point in dispute between two or more parties.” Issue, BLACK’S LAW DICTIONARY (10th ed. 2014). A party may waive an issue by failing to present it in the courts below. See Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 763 n.4 (Tex. 2014). By contrast, however, “parties are free to construct new arguments” in support of unwaived issues properly before the court.” State Office of Risk Mgmt. v. Martinez, No. 16-0337, 2017 Tex. LEXIS 1153, at *14 (Dec. 15, 2017)

Here is a case where a party preserved an objection as to a translated document, or more accurately, that the party claiming waiver never put the matter in issue:

  • Evidence: “[A]ppellant complains that Velasco waived his complaint about the usage of the English version of the arbitration agreement by appellant as a translation of the Spanish agreement [*8] that Velasco purportedly signed. Rule 1009 specifically addresses objections to foreign-language documents. In particular, Rule 1009(b) provides that: “When objecting to a translation’s accuracy, a party should specifically indicate its inaccuracies and offer an accurate translation. A party must serve the objection on all parties at least 15 days before trial.” Id. at R. 1009(b). . . .As noted above, appellant did not comply with the requirements of Rule 1009 to serve on all parties, at least forty-five days before trial, a translation and the underlying foreign-language document, as well as a qualified translator’s affidavit or unsworn declaration. And because appellant did not serve a proper translation of [*9] the purported Spanish version of the signed arbitration agreement, there was nothing for Velasco to object to under Rule 1009(b), though he objected to the admissibility of the relevant documents anyway. See id. at R. 1009(b). Accordingly, we are not persuaded by appellant’s waiver contention.” T&T Rock Distribution, LLC v. Velasco, No. 10-16-00408-CV, 2017 Tex. App. LEXIS 11892, at *7-9 (App.—Waco Dec. 20, 2017)

Governmental immunity may be raised for the first time on appeal:

  • Governmental Immunity: “The Board did not argue in the trial court that it was immune from Vizant’s breach of contract claim and that the Legislature had declined to waive such immunity. The Board is permitted to make those arguments for the first time on appeal, . . . but it does not point to record evidence that might rebut the evidence supporting Vizant’s allegation that the contract was properly executed.” Dall./Fort Worth Int’l Airport Bd. v. Vizant Techs., LLC, No. 05-17-00090-CV, 2017 Tex. App. LEXIS 11721, at *11 (App.—Dallas Dec. 15, 2017)

The record must show you preserved your complaint:

  • Continuance: “In Villegas, the Texas Supreme Court held that HN2 when a motion for continuance is not sworn or supported by a proper affidavit, a reviewing court generally presumes the trial court did not abuse its discretion in denying the continuance. 711 S.W.2d at 626. It did not apply the general rule in that case, however, because it found it would be “unrealistic” to apply it to a lay movant whose attorney had been allowed to withdraw over the movant’s objection. Id. . . . The record before us does not contain such evidence. We are not shown whether Ortiz was negligent or at fault in causing Perkins to withdraw. On this record, whether she objected to his withdrawal and, if so, the grounds for her objection, are unknown. We cannot know when Ortiz received notice of the District’s motion [*6] for summary judgment, Perkins’ intention to withdraw, or Perkins’ withdrawal. Nor do we know when Ortiz undertook to locate replacement counsel and the steps she pursued to that end. In short, the record in this case, unlike that in Villegas, provides us no reason to disregard the general presumption that a trial court does not abuse its discretion by denying a motion for continuance that is unsworn and unsupported by an affidavit.” Ortiz v. Plano Indep. Sch. Dist., No. 07-17-00021-CV, 2017 Tex. App. LEXIS 11630, at *4-6 (App.—Amarillo Dec. 13, 2017)

Your complaint must be timely:

  • Affidavit: “During Urban’s testimony as an adverse witness, Gleannloch offered into evidence an affidavit by Tina Williams. The State objected on the grounds of hearsay and failure to disclose in response to requests for discovery. The trial court overruled the State’s objections and admitted the affidavit into evidence. In their second issue, the State asserts the trial court erred. On appeal, the State contends: (1) the affidavit constituted inadmissible hearsay, and (2) was not disclosed in response to discovery requests. We first note the latter argument, although raised at trial, was not raised in the State’s motion for new trial and is therefore waived.” State v. Gleannloch Commer. Dev., LP, No. 14-16-00037-CV, 2017 Tex. App. LEXIS 11921, at *45 (App.—Houston [14th Dist.] Dec. 21, 2017)
  • Dismissal: “ In addition, to be timely a motion to dismiss must be filed before the Department introduces its evidence, other than rebuttal evidence. Tex. Fam. Code § 263.402(b); . . . . Here, Felix and Jane did not file a timely motion to dismiss under Section 263.402 and have therefore waived their right to object to the trial court’s failure to dismiss the suit. See Tex. Fam. Code § 263.402(b); see also Tex. R. App. P. 33.1.” F.R. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00487-CV, 2017 Tex. App. LEXIS 11681, at *13 (App.—Austin Dec. 15, 2017)

I won’t bore you with the cases in which courts held that parties did not preserve error because they did not raise the complaint in the trial court.

I hope this helps. Y’all take care, have a great holiday season, and the best New Year ever.


Steve Hayes


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s