Error Preservation in Texas Civil Cases, June 23, 2018

June 23, 2018

Hey, Buckaroos:

Well, yes, and here we go again, though there is not much to talk about this week.

Your complaint must be timely:

  • Evidence: “To preserve error for appellate review, the complaining party must timely and specifically object to the evidence and obtain a ruling. Tex. R. App. P. 33.1(a); McShane, 239 S.W.3d at 235. Error is waived if the complaining party allows the evidence to be introduced without objection. Id. Here, McPherson did not object to Melamed’s testimony until it filed its motion to strike days later. We conclude the trial court did not err in determining that McPherson’s delay in objecting to Melamed’s testimony waived any error.” McPherson v. Rudman, No. 05-16-00719-CV, 2018 Tex. App. LEXIS 4601, at *14 (App.—Dallas June 21, 2018)

You must get a ruling on your complaint:

  • Continuance: “Here, we note that Anthony, during trial, presented an oral motion for continuance, without a supporting affidavit. See Tex. R. Civ. P. 251 (providing that continuance may be granted only for “sufficient cause supported by affidavit,” by consent of the parties, or by operation of law). Notwithstanding, however, in his brief, he complains that the trial court “did not rule on the request.” To present a complaint for appellate review the record must show that a complaint was communicated to the trial court by a timely motion, request, or objection, complying with the requirements of the rules [*15] of civil procedure, and that the trial court ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule and the complaining party objected to the refusal. See Tex. R. App. P. 33.1(a). Without a ruling from the trial court on his request for a continuance, we hold that Anthony has not preserved his complaint for review and has thus waived the issue. See id.” Amudo v. Amudo, No. 01-17-00318-CV, 2018 Tex. App. LEXIS 4550, at *14-15 (App.—Houston [1st Dist.] June 21, 2018)

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

  • Participation at trial: “A point of error on appeal must comport with the objection made at trial. In re M.M.W., 536 S.W.3d 611, 613 (Tex. App.—Texarkana 2017, no pet.). To preserve an error for appeal, the complaining party must timely and plainly [*6] make the court aware of the complaint and obtain a ruling. Tex. R. App. P. 33.1(a); In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Here, Jamie complains that the trial court erred in denying her “request to be present and participate in trial.” However, Jamie only requested a continuance of the trial. She did not request a bench warrant, seek permission to participate telephonically, or request other relief to ensure that she could be present and participate in the trial. Because her complaints on appeal do not comport with her request at trial, she has not preserved this issue.” A.M., No. 06-18-00012-CV, 2018 Tex. App. LEXIS 4591, at *5-6 (App.—Texarkana June 22, 2018)

There were a host of cases in which parties did not raise their complaints at trial, and we won’t address those here.

Y’all have a great weekend.  Take good care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

Advertisements

Leave a Reply

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

WordPress.com Logo

You are commenting using your WordPress.com 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