Error Preservation in Texas Civil Cases, May 26, 2018

Dear All:

Had some spare time, so thought I would update with this week’s stuff.

The Supreme Court weighed in on error preservation as to a Casteel complaint, but really said nothing new, that I could tell:

Jury Charge: “Whether Dr. Benge has an evidentiary complaint or not, the complaint he makes is that the charge allowed the jury to consider what he did or did not tell Williams about Dr. Giacobbe’s involvement in the surgery in deciding negligence, even though Williams does not seek recovery on that basis. He objected to the charge and requested a limiting instruction. In Morrison, we held that an objection to the charge even without a requested question or instruction preserved the complaint that the evidence would allow the jury to find liability in answer to a single broad-form question, on a theory on which the plaintiff could not recover. Dr. Benge’s objection and requested instruction went as far as that case requires.” Benge v. Williams, No. 14-1057, 2018 Tex. LEXIS 441, at *24 (May 25, 2018)

You can raise some complaints for the first time on appeal–for example, lack of legally and factually sufficient evidence in a bench trial:

Legal Sufficiency: “Husband also argues that Wife failed to preserve her complaints about characterization of these items. But in a nonjury case, a party may complain about legal and factual sufficiency of the evidence for the first time on appeal. Tex. R. App. P. 33.1(d). Wife’s issues are based on both legal and factual sufficiency of the evidence to support the trial court’s characterization and division of property. Consequently, we will address the merits of Wife’s arguments.” In the Interest of D.V.D., No. 05-17-00268-CV, 2018 Tex. App. LEXIS 3657, at *11 (App.—Dallas May 22, 2018)

When you object to an expert’s testimony as unreliable before trial, and receive a ruling on your objection, you have preserved your complaint for appeal:

Expert: “The record reflects appellant filed a pretrial motion to exclude Stewart’s expert testimony. See Tex. R. Evid. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-95, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). That motion was presented to the trial court and a hearing was held, after which the trial court overruled the motion. None of appellant’s issues claim the trial court abused its discretion in overruling her motion but the entirety of her argument leads us to construe it to be one of admission of expert testimony rather than erroneous evidentiary rulings. See Tex. R. Evid. 702.  To preserve a complaint that expert opinion evidence is inadmissible because it is unreliable, a party must object to the evidence before trial [*12] or when the evidence is offered. Kerr—McGee Corp. v. Helton, 133 S.W.3d 245, 251-52 (Tex. 2004) (abrogated on other grounds by Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Accordingly, appellant’s complaint was preserved.” In re Mugford, No. 14-16-00436-CV, 2018 Tex. App. LEXIS 3586, at *11-12 (App.—Houston [14th Dist.] May 22, 2018)

Sometimes, the trial court’s ruling can be implied:

Legal Sufficiency: “Mandy asserts in her first issue that the evidence is legally insufficient to support the jury’s “yes” answer in response to Question No. 9 because the record does not show that she employed Shadow Creek to perpetrate an actual fraud primarily for her direct personal benefit. See id. § 21.223(b). Mandy preserved this contention at the charge conference and post-verdict. n. 4 n. 4 This contention was raised in Shadow Creek’s and Mandy’s response and objections to Havey’s motion for entry of judgment, which asserted that “[i]t would be improper to enter[] judgment on [Question No.] 9, and a take nothing [judgment] should be issued as to Mandy Hong.” The trial court did not explicitly rule on Havey’s motion for entry of judgment or on Shadow Creek’s and Mandy’s objections. Instead, the trial court signed a final judgment assessing liability against Mandy based on the jury’s responses to Questions No. 1, 3, and 9. In doing so, the trial court implicitly overruled Shadow Creek’s and Mandy’s objections to Havey’s motion for entry of judgment. See Tex. R. App. P. 33.1(a)(2)(A) (providing that error is preserved when the trial court ruled on the motion either expressly or implicitly);” Hong v. Havey, No. 14-16-00949-CV, 2018 Tex. App. LEXIS 3705, at *17 n.4 (App.—Houston [14th Dist.] May 24, 2018)

Jury Finding:”Mandy asserts in her second issue that the jury’s common law fraud and conspiracy findings in Questions No. 1 and 3 are immaterial because the claims are statutorily barred by sections 21.223 and 21.224 as “common law claims to establish contract liability under a corporate obligation.” See Tex. Bus. Orgs. Code Ann. §§ 21.223, 21.224. Mandy preserved this argument by asserting it at the charge conference and post-verdict. n. 5 n. 5 This contention was raised in Shadow Creek’s and Mandy’s response and objections to Havey’s motion for entry of judgment, which asserted that the jury findings in response to Questions No. 1 and 3 are immaterial. The trial court did not explicitly rule on Havey’s motion for entry of judgment or on Shadow Creek’s and Mandy’s objections. Instead, the trial court signed a final judgment assessing liability against Mandy based on the jury’s responses to Questions No. 1, 3, and 9. In doing so, the trial court implicitly overruled Shadow Creek’s and Mandy’s objections to Havey’s motion for entry of judgment. See Tex. R. App. P. 33.1(a)(2)(A) (providing that error is preserved when the trial court ruled on the motion either expressly or implicitly).” Hong v. Havey, No. 14-16-00949-CV, 2018 Tex. App. LEXIS 3705, at *28 n.5 (App.—Houston [14th Dist.] May 24, 2018)

Still, it is far better to get an express ruling on your complaint, because then you know you have the ruling you need to preserve your complaint:

Discovery: “In his third issue, Morgan asserts that the trial court abused its discretion by denying his request for discovery. There is no indication in the record that Morgan served Varghese with discovery requests. After Varghese moved to dismiss Morgan’s claims, Morgan filed a “Motion to Show Cause for Action,” in which he prayed for “full disclosure” pursuant to civil-procedure rules 194.1 and 194.2 and “production & inspection” under rule 196.1. Tex. R. Civ. P. 194.1, 194.2, 196.1. . . .We construe this issue as a complaint that the trial court denied Morgan’s “Motion to Show Cause for Action.” But because the trial court did not rule on this motion and there is no indication in the record that the court refused to do so, Morgan has failed to preserve this complaint for our review. See Tex. R. App. P. 33.1(a)(2). Moreover, under section 14.003(d), the trial court was required to “suspend discovery relating to the claim pending the hearing.” Tex. Civ. Prac. & Rem. Code Ann. § 14.003(d); Albert v. Aldelstein, No. 02-13-00073-CV, 2013 Tex. App. LEXIS 9909, 2013 WL 4017511, at *4 (Tex. App.—Fort Worth Aug. 8, 2013, no pet.) (mem. op.) (“Under chapter 14 . . . ‘the trial court shall suspend discovery’ pending a determination of frivolousness.” (quoting Tex. Civ. Prac. & Rem. Code Ann. § 14.003(d))). We therefore overrule Morgan’s third issue.” Morgan v. Varghese, No. 02-17-00079-CV, 2018 Tex. App. LEXIS 3739, at *7-8 (App.—Fort Worth May 24, 2018)

I won’t bore you with the cases where parties failed to raise their complaints at all in the trial court.

Hope this helps.  Y’all have a good weekend, and week.

Yours,

Steve Hayes

www.stevehayeslaw.com

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