Error Preservation in Texas Civil Cases, August 13, 2018

August 13, 2018

Dear All:

Here is a list of those things covered in this entry in the blog:

A case in which a party preserved its objection about the trial court’s exclusion of some Google Earth photos

Evidence

A case in which a party preserved an objection to certain witnesses–even though her motion was called a motion in limine

Evidence

You must make your complaint on the record, and it must be timely

Evidence
Evidence

The grounds underlying a complaint raised at trial must comport with the grounds raised on appeal

Attorney’s Fees

Evidence

You have to get a ruling on your complaint

Evidence

Here is a case in which a party preserved its objection about the trial court’s exclusion of some Google Earth photos:

Evidence: “In responding to Mattress Firm’s objections and the trial judge’s questioning, Jones’s counsel described the photos as showing the store, the tube man, and its location. Counsel further stated that the location of the tube man in the photos directly contradicted Mattress Firm’s asserted location. The trial court understood that counsel was “try[ing] to admit [some]thing . . . printed off of Google Earth.” The court also focused on authentication of the photos, stating: “let’s talk about Google Earth. . . . [H]ow can you authenticate this?” The court understood the admissibility [*6] of the photos to be preserved for appeal, stating that “if I’m wrong about [my ruling] I’ll get it right the next time we try the case.” The photos are included in the record, enabling appellate review.

Jones offered a short, factual recitation of what the photos showed and why she intended to introduce them. Further, it is clear from the context that the trial court excluded the photos and understood that the issue was preserved for appeal. Despite not presenting a formal offer of proof, Jones made the substance of the evidence apparent to the trial court and included it in the record. Thus, Jones properly preserved the issue for appeal.“ Jones v. Mattress Firm Holding Corp., 2018 Tex. App. LEXIS 6140, * (Tex. App.–Houston [14th Dist.] Aug. 7, 2018)

Here is a case in which a party preserved an objection to certain witnesses–even though her motion was called a motion in limine:

Evidence: On the other hand, during the course of the hearing on Mother’s motion, the trial court also stated, “If they call an expert, I’ll hear your objection, the request for a hearing outside the presence of the jury at that time.” The trial court also stated that it intended “to hear the objections to the witness at the time, as opposed to . . . addressing a limine at this time.” Based on these statements from the trial court, the Department argues that the trial court merely made a ruling on a motion in limine-which does not preserve error-and [*16] that Mother waived her objections by failing to object to the witnesses at the time they were called. We disagree.

At trial, the Department called the following witnesses, in addition to Mother and Father: (1) Joseph Stephens, (2) Christopher Kitts, (3) Crystal Wrape, (4) Tracy Howell, (5) Andrea Scoggins, (6) Amanda McDonald, and (7) J.K. Mother did not object to Father, Stephens, Wrape, and McDonald at the time they were called to testify. She did object, however, when Kitts, Howell, Scoggins, and J.K. were called to testify. The trial court permitted those four aforementioned witnesses to testify over Mother’s objection. Accordingly, as to Kitts, Howell, Scoggins, and J.K., Mother did preserve error. Under Rule 193.6(a) Mother could not object to her own testimony or to the testimony of Father or Wrape. See Tex. R. Civ. P. 193.6(a), (holding that nonresponding party may not introduce “the testimony of a witness (other than a named party) who was not timely identified”). Thus, the question remaining is whether Mother preserved error as to Stephens’ and McDonald’s testimony.
. . .
It is true that a trial court’s ruling on a motion in limine does not preserve error, and Mother’s objections were raised in a motion entitled “motion [*17] in limine.” See Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.-Texarkana 2000, pet. denied). Nevertheless, as we noted in Texas-Ohio Gas, Inc. v. Mecom, “we acknowledge that motions can be misnamed. Courts should look to the substance of a motion rather than the title to determine its nature. A motion’s substance is to be determined from the body of the instrument and its prayer for relief.” Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 142 (Tex. App.-Texarkana 2000, no pet.) (citations omitted).
. . . .
Considering (1) the substance of her motion, (2) Mother’s verbal request that “[the Department] be precluded from calling any witnesses,” (3) the Department’s information attempting to establish the lack of unfair surprise or prejudice, (4) the manner in which the hearing was conducted, and (5) the trial court’s ruling, Mother’s specific request to strike the witnesses was a motion to exclude the Department’s witnesses rather than a motion in limine.

It is true that the trial court told Mother, “If you have any specific surprise by a specific witness, you can bring that to my attention at the time that the witness is called” and that it intended “to hear the objections to the witness at the time, as opposed to . . . addressing a limine at [that] time.” The trial court also stated, “I’ll hear the objections at the time and [*20] see witness by witness, but I’m not going to grant anything at this time.” Yet, these statements do not change the result. For one thing, that procedure would impermissibly shift the burden of proof from the Department to Mother. As noted above, the exclusion under Rule 193.6 is automatic, and the Department had the burden to establish an exception to the Rule, not Mother. See id.; see also Tex. R. Civ. P. 193.6(b).

Furthermore, Rule 103(b) of the Texas Rules of Evidence states, “Not Needing to Renew an Objection. When the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.” TEX. R. EVID.103(b). Accordingly, having overruled Mother’s objections and having indicated that her objections were preserved by the ruling, no further objections were required to preserve Mother’s objections. Consequently, we find that Mother did not waive her objections to the Department’s witnesses.” In the Interest of D.W.G.K., No. 06-17-00124-CV, 2018 Tex. App. LEXIS 6089, at *14-20 (App.—Texarkana Aug. 6, 2018)

You must make your complaint on the record, and it must be timely:

Evidence: “Second, the record fails to illustrate that F.E. objected to the trial court’s directive that he call his first witness early. And, assuming arguendo that he objected during the bench conference, we can only guess at the basis or grounds for his objection given the absence of a transcription of the bench conference. See In re P.M., No. 02-14-00205-CV, 2014 Tex. App. LEXIS 13947, 2014 WL 8097064, at *32 (Tex. App.—Fort Worth Dec. 31, 2014, pet. denied) (mem. op.) (“[B]ecause Mother did [*10] not ensure that the court reporter recorded the bench conferences during which the objections were discussed, she cannot show us how these rulings constituted bias against her.”). We further note the absence of any written motion to continue the trial within the appellate record. Since HN4 error must be preserved for review through a contemporaneous objection stating the specific grounds underlying the objection, see Tex. R. App. P. 33.1(a); L.H. v. N.H., No. 02-15-00116-CV, 2015 Tex. App. LEXIS 12319, 2015 WL 7820489, at *3 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op.), and the record fails to illustrate either an objection or the grounds underlying it, F.E. also failed to preserve his complaint for review.” In re A.E., No. 02-18-00124-CV, 2018 Tex. App. LEXIS 6300, at *9 (App.—Fort Worth Aug. 9, 2018)

Evidence: “Sparks argues on appeal that he presented credible, uncontradicted testimony and evidence that his monthly income is approximately $3,500 less than it was at the time of the previous support order, he has exhausted all but $15,091 in savings, he owes approximately $2,000 to his attorneys and $41,712 in credit card debt, and he has agreed to pay $750 a month to the mother of his second child.

In support of these claims, Sparks cites liberally to the evidence attached to his motion for rehearing but which was not before the district court. This evidence includes the only documentary support that he depleted his savings to $15,091 and owes $2,000 in legal fees and $41,712 in credit card debt. HN5 “In determining whether a trial court abused its discretion, a reviewing court is generally bound by the record before the trial court at the time its decision was made.” In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding). Sparks asserts the district court should have exercised its discretion under Rule of Civil Procedure 270 to consider the new evidence but he failed to preserve error, if any, by obtaining a ruling on his motion. See Tex. R. App. P. 33.1(a).” Sparks v. Rutkowski, No. 03-17-00452-CV, 2018 Tex. App. LEXIS 6097, at *6 (App.—Austin Aug. 3, 2018)

The grounds underlying a complaint raised at trial must comport with the grounds raised on appeal:

Attorney’s Fees: “F.E. next contends that the trial court abused its discretion in awarding A.D. $45,000 in attorney’s fees for work done through trial. In awarding the sum, the trial court simply assessed the amount found by the jury. F.E. does not question the sufficiency of the evidence underlying the amount given. Instead, he believes the trial court erred because 1) there was no finding that he acted frivolously or in bad faith; 2) there was “no need for payment of attorney’s fees as a means of ‘leveling the playing field'”; 3) the parties had between them no agreement to pay fees; 4) he was not found “guilty of an unreasonable delay or dilatory tactics”; 5) it did not matter that A.D. prevailed in the dispute; 6) the jury’s verdict awarded fees to both parties; and 7) because he was “the responding [*7] party” in the suit, “[t]he chilling [e]ffect of being ha[]led into court and then required to pay attorney fees for the opposing party creates a dangerous precedent” violating Texas’s open courts policy. We overrule the issue.

Complaints about attorney’s fees are subject to the rules of preservation. Dinkins v. Calhoun, No. 02-17-00081-CV, 2018 Tex. App. LEXIS 3519, 2018 WL 2248572, at *8 (Tex. App.—Fort Worth May 17, 2018, no pet.) (mem. op.). One such rule requires that the grounds underlying a complaint raised at trial comport with the grounds raised on appeal. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); In re V.L.A., No. 02-13-00147-CV, 2013 Tex. App. LEXIS 12155, 2013 WL 5434008, at *10 (Tex. App.—Fort Worth Sept. 26, 2013, no pet.) (mem. op.). That rule was breached here.

F.E. filed a motion for new trial. One of the several reasons he urged purportedly entitling him to relief concerned the award of $45,000 in attorney’s fees. He argued that the trial court abused its discretion in awarding them because 1) he was a “respondent” who was “forced to come to court at a time not of his choosing and selection”; 2) the trial court lacked “knowledge of how or exact reasons as to this matter being required for trial other than the dispute between the parties with regard to the primary residency of the minor child”; 3) awarding fees against a respondent “smacks of prejudice”; 4) an award of appellate [*8] attorney’s fees must be conditioned upon an unsuccessful appeal; and 5) interest on appellate attorney’s fees does not begin accruing until the appellate court issues its judgment. That the trial court “made no finding with regard to interest provisions in ordering any attorney’s fees” also was mentioned within the litany of written objections F.E. filed prior to the trial court’s executing its final order.

Comparing the grounds asserted by F.E. at trial with those at bar, we discover that they differ. None mentioned here were encompassed within those uttered below. Consequently, those here were not preserved for review.” In re A.E., No. 02-18-00124-CV, 2018 Tex. App. LEXIS 6300, at *6-8 (App.—Fort Worth Aug. 9, 2018)

Evidence: “As shown above, at trial, Nick made a general objection to the trial court taking judicial notice of the pretrial testimony, rather than a specific objection on the basis that “the testimony from the earlier hearings was not authenticated and entered in evidence.” Furthermore, the record indicates the trial court understood Nick’s objection to be about testimony that had been objected to at the pretrial hearings. To preserve error, a complaint on appeal must comport with the objection made at trial. Rogers v. Dep’t of Family and Prot. Serv., 175 S.W.3d 370, 376 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) (declining to address a complaint on appeal when it did not comport with the objection made at trial); Tex. R. App. P. 33.1(a) (requiring the record to show that a complaint was made to the trial court as a prerequisite to presenting a complaint for appellate [*7] review). Nick’s complaint on appeal that the trial court could not take judicial notice of the pretrial testimony because it was not “authenticated and entered in evidence” does not comport with the objection he made at trial.” In the Interest of N.C.H.-M., No. 04-18-00098-CV, 2018 Tex. App. LEXIS 6191, at *6-7 (App.—San Antonio Aug. 8, 2018)

You have to get a ruling on your complaint:

Evidence: “Sparks argues on appeal that he presented credible, uncontradicted testimony and evidence that his monthly income is approximately $3,500 less than it was at the time of the previous support order, he has exhausted all but $15,091 in savings, he owes approximately $2,000 to his attorneys and $41,712 in credit card debt, and he has agreed to pay $750 a month to the mother of his second child.

In support of these claims, Sparks cites liberally to the evidence attached to his motion for rehearing but which was not before the district court. This evidence includes the only documentary support that he depleted his savings to $15,091 and owes $2,000 in legal fees and $41,712 in credit card debt.  “In determining whether a trial court abused its discretion, a reviewing court is generally bound by the record before the trial court at the time its decision was made.” In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding). Sparks asserts the district court should have exercised its discretion under Rule of Civil Procedure 270 to consider the new evidence but he failed to preserve error, if any, by obtaining a ruling on his motion. See Tex. R. App. P. 33.1(a).” Sparks v. Rutkowski, No. 03-17-00452-CV, 2018 Tex. App. LEXIS 6097, at *6 (App.—Austin Aug. 3, 2018)

As usual, there were the litany of cases in which parties failed to raised their complaint in the trial court.

I hope this helps.  Y’all take good care.

Yours, Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

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