Error Preservation in Texas Civil Cases, September 3, 2018

September 1, 2018

Dear All:

As usual, in this last week of their fiscal year, the courts of appeals handed down a ton of cases, including those involving error preservation. The cases included in this blog entry include:

A case which applies the Supreme Court’s recent holding that there must be some indication in the record that the trial court ruled on summary judgment objections

A case in which the court held that the complaint about ambiguity was not sufficiently specific to bring it to the trial court’s attention, and another where the complaining party did not tell the trial court why she was entitled to the discovery she sought.

A case holding that you have several opportunities to preserve a complaint that the pleadings do not support a damage award.

Cases involving issues you (or your opponent) can raise for the first time on appeal, relating to:

Affidavits
Notice
Summary Judgment

Several cases which point out that you must bring your complaint to the trial court’s attention and secure a ruling on it, including some related to:

Continuance
Discovery
Mandamus
Dissent
Evidence
Pleading

A case pointing out that you must preserve your complaint concerning the tolling of limitations by raising the complaint in the agency hearings

Cases confirming that your complaint must be sufficiently specific concerning:

Evidence
Jury Selection

A case confirming that your special appearance must comply with the pertinent rules

A case holding that, under some circumstances, you can thwart an argument that an issue was tried by consent if you object to the lack of pleading prior to the submission of the charge to the jury

Now for the cases

Here is a case which applies the Supreme Court’s recent holding that there must be some indication in the record that the trial court ruled on summary judgment objections–leaving us to wonder what, if anything, remains of the Supreme Court’s earlier holding that to preserve such objections one must get “an order sustaining the objection . . . reduced to writing, signed, and entered of record,’” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017):

Summary Judgment: “For there to be an implicit ruling on objections to summary judgment evidence, “there must be some indication that the trial court ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment.” Id.; see also Seim v. Allstate Tex. Lloyds, No. 17-0488, S.W.3d , 2018 Tex. LEXIS 648, 2018 WL 3189568, at *3-4 (Tex. June 29, 2018) (per curiam) (agreeing with intermediate courts holding that mere granting of summary judgment was not implicit ruling on objections to summary judgment evidence and stating that ruling may be implied if implication is “clear”). . . . The trial court did not issue a separate order ruling on the parties’ objections to the summary judgment evidence. Sooner Pipe submitted a proposed order granting its summary judgment motion that stated: “Pending before the Court in the above-captioned action is Plaintiff’s Motion for Summary Judgment. After considering the Motion, any responses thereto, the arguments of counsel, if any, the record, and the applicable law, the Court is of the opinion that Plaintiff’s Motion should be GRANTED.” In its final judgment, the trial court made handwritten additions to the proposed order. With the trial court’s additions, the order stated: “After considering the Motion, any responses thereto, all summary judgment evidence, the arguments of counsel, if any, the record, and the applicable law, the Court is of the opinion that Plaintiff’s Motion should be GRANTED.” (Emphasis added.) [*19] The trial court thus indicated that, in deciding the motion, it considered all of the summary judgment evidence presented. We therefore conclude that this statement constitutes an implicit overruling of the parties’ objections to the summary judgment evidence. See Ennis, Inc., 427 S.W.3d at 532 (stating that for there to be implicit overruling of objections to summary judgment evidence, there must be some indication trial court “ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment”). Because we hold that the trial court impliedly overruled the parties’ objections to the summary judgment evidence and considered all of the evidence presented to it in making its ultimate summary judgment ruling, we decline Fortitude’s suggestion to abate the appeal to allow the trial court the opportunity to memorialize its ruling on the objections.” Fortitude Energy, LLC v. Sooner Pipe LLC, No. 01-17-00501-CV, 2018 Tex. App. LEXIS 7169, at *18-19 (App.—Houston [1st Dist.] Aug. 30, 2018)

You have several opportunities to preserve a complaint that the pleadings do not support a damage award–including a motion to set aside judgment (and a brief to support the motion), a motion to stay judgment:

Pleadings: “Slaughter also complains in his third issue of the damages and injunctive relief awarded to Johnson. Slaughter asserts Johnson did not file any pleadings to support his requests for affirmative relief. Slaughter emphasizes that Johnson never filed a counterclaim against Johnson.

Johnson asserts Slaughter waived this issue by failing to raise it before the trial court. To preserve an issue for appellate review, a party must make its complaint known to the trial court by a timely request or objection that is specific enough for the trial court to be aware of the complaint and then receive a ruling from the trial court. Tex. R. App. P. 33.1. Having reviewed the record, we disagree and find Slaughter adequately preserved this issue for appeal.

Before the trial court, Slaughter asserted this argument on more than one [*19] occasion. In a motion to set aside the judgment, Slaughter argued, “Defendant’s Motion and Order claims damages which were never plead by him, [sic] and cannot become part of any judgment against the Plaintiff.” In an emergency motion to stay the judgment, Slaughter asserted “Defendant never sued and/or filed pleadings with the court for injunctive relief” and “The court signed an order . . . granting the Defendant injunctive relief.” Slaughter also filed a memorandum in support of his motion to set aside the judgment in which he cited rule 301 (judgment must conform to pleadings) and further expounded on the argument. We find Slaughter’s argument was properly raised before the trial court.” Slaughter v. Johnson, No. 14-17-00050-CV, 2018 Tex. App. LEXIS 6865, at *18-19 (App.—Houston [14th Dist.] Aug. 28, 2018)

Some issues can be raised for the first time on appeal–such as the conclusory nature of affidavit testimony or lack of notice of a default judgment hearing which appears on the face of the record:

Affidavit: “For the objections to the declarations, the absence of a ruling on Ngo’s objection that these declarations are conclusory does not waive the argument, because a party may challenge the substance of an opposing party’s summary-judgment evidence as conclusory for the first time on appeal. See Seim v. Allstate Tex. Lloyds, No. 17-0488, 2018 Tex. LEXIS 648, 2018 WL 3189568, at *4 (Tex. June 29, 2018) (per curiam). Conclusory declarations are not competent summary-judgment proof. See Tex R. Civ. P. 166a(f); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (affidavits consisting of conclusions do not raise genuine issue of material fact; facts must be stated [*8] with sufficient specificity to allow perjury to be assigned to false representations).” Lang Tran v. Quynh Ngo, No. 01-17-00138-CV, 2018 Tex. App. LEXIS 7188, at *7-8 (App.—Houston [1st Dist.] Aug. 30, 2018)

Notice: “In his second issue, Rodriguez claims the trial court erred in granting a post-answer default-judgment. Specifically, Rodriguez claims that his [*10] letters of March 2 sent to the trial court constituted proper answers, and as such, he was entitled to forty-five days’ notice under Rule 245 of the Texas Rules of Civil Procedure. He claims he received no notice and asserts that because the hearing was held less than two weeks after KF Logistics filed its motion for default judgment, notice could not have complied with Rule 245 even if it had been sent. . . . Marcus maintains that we do not even need to address the notice issue because Rodriguez did not raise the issue in a motion for new trial as required by Texas Rules of Civil Procedure 324(b)(1), and thus failed to preserve the issue for review. Rule 324 does indeed require that certain points be raised in a motion for new trial to preserve them for appellate review. Tex.R.Civ.P. 324. But Rule 324 is inapplicable here because raising the point in a motion for new trial is not required to preserve the issue in a nonjury trial. Howell v. Coca-Cola Bottling Co. of Lubbock, Inc., 599 S.W.2d 801, 802 (Tex. 1980). Thus, the issue returns to notice. The judgment rendered by the trial court [*13] makes no recitation regarding notice. Additionally, the hearing itself was held on July 8, less than two weeks after KF Logistics filed its motion for default judgment on June 26. This affirmatively demonstrates that less than forty-five days’ notice was provided to Rodriguez—if any notice was provided at all, which the record does not show. As noted above, a party who timely files an answer is entitled to notice pursuant to Rule 245. Lippmann, 826 S.W.2d at 138; In re R.K.P., 417 S.W.3d at 551. In a contested case, the forty-five days’ notice requirement is mandatory, and a trial court’s failure to comply with the notice requirements is a violation of fundamental due process. Blanco, 20 S.W.3d at 811; Custom-Crete, Inc., 82 S.W.3d at 659. The proper remedy when a party does not receive notice of the trial setting as required by Rule 245 is to set aside the default judgment because it is ineffectual. In re R.K.P., 417 S.W.3d at 551; Custom-Crete, Inc., 82 S.W.3d at 659. Accordingly, Rodriguez’s second issue is sustained.” Rodriguez v. Marcus, No. 08-15-00252-CV, 2018 Tex. App. LEXIS 7226, at *9 (App.—El Paso Aug. 30, 2018)

Summary Judgment: “In its second issue, Paull & Partners argues the trial court erred in granting summary judgment on the Berrys’ request for forfeiture of the principal and interest owed under the note. Although our conclusion that fact issues exist regarding whether the conveyance was a void pretended sale is a sufficient basis for reversing the summary judgment, the parties have fully briefed whether forfeiture is a proper remedy for a pretended sale. We therefore address that issue in the interest of judicial economy to provide guidance to the trial court on remand. . . .The Berrys first argue that Paull & Partners waived its second issue by failing to raise it in response to the motion for partial summary judgment. We disagree. As previously stated, the Berrys bore the burden of proving as a matter of law that no genuine issue [*23] of material fact exists and that they are entitled to judgment as a matter of law on their claims. Tex. R. Civ. P. 166a(c); Univ. MRI & Diagnostics, 497 S.W.3d at 659 n.2. A non-movant who fails to file a response to a motion for summary judgment may still challenge on appeal “the legal sufficiency of the grounds presented by the movant.” Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014). We conclude that Paull & Partners may argue for the first time on appeal that the Texas Constitution does not permit forfeiture as a remedy for a pretended sale because this argument challenges the legal sufficiency of the grounds presented in the motion for partial summary judgment. See id. (non-movant could raise issue of failure of acceptance of all material terms in an offer for first time on appeal because movant had burden of establishing acceptance to prove right to summary judgment).” Paull & Partners Invs., LLC v. Berry, No. 14-17-00519-CV, 2018 Tex. App. LEXIS 6861, at *22-23 (App.—Houston [14th Dist.] Aug. 28, 2018)

Several cases point out that you must bring your complaint to the trial court’s attention and secure a ruling on it, including one case where the lengthy dissent disagreed with the majority on whether the record was sufficient to preserve the complaint:

Continuance: “At the hearing, Miears also objected to McPherson’s late-filed summary judgment evidence. The trial court sustained Miears’s objection. Nevertheless, Miears asked the trial court to grant her motion for continuance to have time to rebut evidence the trial court expressly stated it had not seen and would not consider. The trial court proceeded with the hearing. N. 2 (n. 2 The record does not show the trial court expressly ruled on the motion for continuance, and Miears did not object to the trial court’s failure to rule. See Tex. R. App. P. 33.1(a); . . . .). . . . On appeal, Miears argues—without citing any supporting authority—that the trial court erred by proceeding with the hearing. Miears failed to preserve her claim of error, see Tex. R. App. P. 33.1(a) (error preservation), and presents nothing for appellate review.” Miears v. McPherson, No. 04-17-00514-CV, 2018 Tex. App. LEXIS 6972, at *14 (App.—San Antonio Aug. 29, 2018

Discovery: “In his third issue, Shugart complains that the trial court failed to enforce the discovery rules by not requiring the County to respond to his discovery requests. However, Shugart never secured a hearing or an order on his motions to compel. See Tex. R. App. P. 33.1(a). Even if Shugart had preserved this complaint on appeal, none of his discovery requests related to the issue of his ownership interest in the greenhouse, and consequently, resolution of this complaint would not affect our disposition of this appeal.” Shugart v. Thompson, No. 06-17-00119-CV, 2018 Tex. App. LEXIS 7018, at *10 n.12 (App.—Texarkana Aug. 30, 2018)

Mandamus: “We note, however, that there is no indication that these items [Disclosures and Medical Record and Billing Affidavits] were presented to the trial court in consideration of Relators’ motion to compel Abushaaban to submit to a physical examination. Relators did not include them as exhibits to their motion or otherwise identify the items as support for their motion. Relators’ counsel has certified to this Court that “[n]o exhibits were offered in evidence at the hearing, and no testimony was adduced in connection with the matter complained of.” And the trial court’s order denying Relators’ motion indicates that the trial court considered only the “Motion to Compel” and counsels’ [*6] arguments. The decision whether to grant Relators’ motion for a physical examination was within the trial court’s discretion. See In re Offshore Marine Contractors, Inc., 496 S.W.3d 796, 800 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding); In re Ten Hagen, 435 S.W.3d at 865-66. Considering the record that was before the trial court when it denied their motion, we conclude that Relators have not established that the trial court abused its discretion in denying their motion to compel a physical examination of Abushaaban. Notably, Relators did not assert in their trial court motion that “a battle of the experts” required the trial court to allow their requested examination of Abushaaban, nor did they present to the trial court any support for their “battle of the experts” assertion that they now advance in this Court. See In re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (explaining mandamus review limited to record actually before trial court for consideration).” In re Michael Angel Sanchez, No. 01-17-00399-CV, 2018 Tex. App. LEXIS 7282, at *6 (App.—Houston [1st Dist.] Aug. 31, 2018)

Dissent: “Finally, the majority observes, “The order denying Relators’ motion indicates that the trial court only considered the [*35] ‘Motion to Compel’ and heard counsels’ arguments,” and “Relators’ counsel has certified in the mandamus proceeding that ‘[n]o exhibits were offered in evidence at the hearing, and no testimony was adduced in connection with the matter complained of.'” Id. at 7.

The majority seizes upon these facts as if they were proof that the motion to compel was properly denied because insufficient evidence was presented to the trial court to satisfy the defendant Relators’ burden of proving that they had good cause to seek the plaintiff Abushaaban’s physical examination under Rule 204.1. But, in fact, the opposite is the case.

The majority’s description of the record in the trial court is misleading and incorrect on the law. The hearing below was a non-evidentiary hearing on a discovery motion. Contrary to the majority’s apparent understanding, parties are not required to obtain transcripts of non-evidentiary hearings on discovery matters to preserve error in the denial of the order; nor is oral testimony required at such a hearing. In re Ooida Risk Retention, 475 S.W.3d at 911; In re Pinnacle Eng’g, Inc., 405 S.W. 3d 835, 840 n.4 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding).

Texas Rule of Appellate Procedure 52.7 governs the record on mandamus from a ruling on a discovery order, including an order under Rule 204.1. It provides for mandamus from both evidentiary and non-evidentiary hearings on a motion [*36] to compel and recites the requirements for the mandamus record. It states that the “[r]elator must file with the petition. . . (1) a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding” and “(2) a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained of.” Tex. R. App. P. 52.7(a) (emphasis added). After the record is filed, any party may supplement the record from the trial court with “additional materials for inclusion in the record.” Tex. R.App. P. 52.7(b). All materials filed for inclusion in the record must be served on all parties. Tex. R. App. P. 52.7(c). Rule 52.8 then states that the appellate court will determine its ruling on the petition “from the petition and any response and reply.” Tex. R. App. P. 52.8(a).

Here, the trial court held a non-evidentiary hearing. Therefore, in their mandamus petition, Relators followed Rule 52.7(a)(2) and, “[i]n place of a transcript of relevant testimony and exhibits introduced in an underlying proceeding . . . provide[d] a ‘statement that no testimony was adduced in connection with the matter complained [*37] of'”— as the majority acknowledges. See Tex. R. Civ. P. 52.7(a)(2); Slip Op. at 7 (stating, “Relators’ counsel has certified in the mandamus proceeding that ‘[n]o exhibits were offered in evidence at the hearing, and no testimony was adduced in connection with the matter complained of.'”).

Rules 52.7, 52.8, and the applicable case law all direct the court of appeals to look to the mandamus record—i.e., “the petition and any response and reply”—to determine the proper outcome of a discovery motion. When there is no statement of facts from the hearing in the trial court or findings of fact or conclusions of law by that court and when the trial court heard no evidence and, instead, based its decision on the papers filed and the argument of counsel, that is the record to which the Court of Appeals must look. See Tex. R.App. P. 52.7, 52.8; Otis Elevator Co. v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993) (applying rule in discovery sanctions case); In re Pinnacle Eng’g, Inc., 405 S.W.3d at 840 n.4 (granting petition for mandamus filed on denial of motion to compel physical examination under Rule 204.1, holding that transcript of hearing was not necessary on non-evidentiary motion and citing Otis Elevator Co.); In re Ooida Risk Retention, 475 S.W.3d at 911 (upholding trial court’s order on mandamus, where trial court heard no evidence and there was no reporter’s record, in combined hearing on summary judgment and motion [*38] to appoint umpire and stating, “Parties are not required to obtain transcriptions of non-evidentiary hearings to preserve error”).

Both the trial court and the majority have failed to follow the law governing the proof of a Rule 204.1 motion to compel, have failed to credit evidence in support of the motion properly before the court, and have improperly denied the defendant Relators an order compelling the physical examination of a plaintiff seeking damages for his personal injuries alleged to have been caused by defendants so that Relators may combat assertions made in support of the plaintiff Abushaaban’s claims by his for medical experts.

The majority opinion and ruling conflict not only with the binding precedent of this Court, but also with binding precedent from the Texas Supreme Court on important points of law governing the proof of a motion to compel the physical examination of a plaintiff seeking damages for personal injury under Texas Rule of Civil Procedure 204.1. Both the majority’s ruling and its order refusing to stay proceedings in the trial court pending trial on the merits in less than two months are unjust. Therefore, I would conclude that the majority’s ruling also violates Rule of Civil Procedure 1, which requires the “just, fair, [*39] equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” See Tex. R. Civ. P. 1. Moreover, I would conclude that the majority opinion in this original proceeding satisfies the criteria for en banc review by this Court and for review by the Texas Supreme Court. See Tex. R. App. P. 41.2(c), 52.1, 56.1.” In re Michael Angel Sanchez, No. 01-17-00399-CV, 2018 Tex. App. LEXIS 7282, at *34-39 (App.—Houston [1st Dist.] Aug. 31, 2018) (Dissent, Keyes, J.)

Evidence: “During pre-trial, Njowo sought to introduce McKinney’s affidavit, which stated that McKinney told Welling that Njowo had loaned McKinney the $125,000. Welling objected that the affidavit was hearsay. Njowo responded that the affidavit was admissible as McKinney’s pro se answer to the suit. The trial court deferred ruling on the affidavit’s admissibility to allow Njowo to show that McKinney had filed the affidavit in answer to the suit. Njowo did not subsequently try to introduce the affidavit into evidence. Nor did he seek or secure [*13] a ruling on its admissibility. Njowo therefore has not preserved this issue for our review. See Tex. R. App. P. 33.1(a)(2)(A);” Njowo v. Welling, No. 01-17-00798-CV, 2018 Tex. App. LEXIS 6898, at *12-13 (App.—Houston [1st Dist.] Aug. 28, 2018)

Pleading: “We conclude that Huynh’s argument that Nguyen’s amended petition should not be considered because it was filed untimely, without leave of court and only two days before the special appearance hearing, is without merit. See Tex. R. Civ. P. 63. . . . .. Further, it does not appear that Huynh obtained a ruling from the trial court on his objection or objected to the trial court’s failure to rule. See Tex. R. App. P. 33.1(a).” Khai Huynh v. Hang Nguyen, No. 01-17-00935-CV, 2018 Tex. App. LEXIS 7175, at *1 n.2 (App.—Houston [1st Dist.] Aug. 30, 2018)

In a claim which originates in an administrative agency, you must preserve your complaint by raising the complaint in the agency hearings:

Limitations (tolling): “We do not have a transcript of the administrative proceedings, but the hearing officer recited the facts of those proceedings in the CCH Decision. Those recitations include the following: ‘Claimant argues in the alternative that carrier did not file an additional DWC-1 at the time of decedent’s death. Because of this, the time for claimant beneficiary to file a claim for death benefits is tolled. Carrier filed its DWC-1 on April 19, 2010 for the original injury. Carrier argues that this is unnecessary and not required by the Rules.’ These recitations indicate that Marta presented her tolling argument to the Division. Therefore, we conclude that the [*15] trial court had jurisdiction to consider the same issue.”Zurich Am. Ins. Co. v. Diaz, No. 14-17-00295-CV, 2018 Tex. App. LEXIS 7113, at *14-15 (App.—Houston [14th Dist.] Aug. 30, 2018)

Your complaint must be sufficiently specific:

Evidence: “In his second issue, Appellant challenges the court’s admission into evidence of “Petitioner’s Exhibits 6, 7 and 8,” which Appellant does not otherwise identify or describe.. . . At trial, Appellant did not object to any specific part of Exhibits 6, 7, or 8, but made only a blanket hearsay objection when they were offered: “And I would just object to hearsay included within those documents.” A blanket hearsay objection that fails to identify which parts of the document contain the hearsay is not sufficiently specific to preserve error with respect to those parts.” T. W. v. Tex. Dep’t of Family & Protective Servs., No. 03-18-00347-CV, 2018 Tex. App. LEXIS 6930, at *22-23 (App.—Austin Aug. 29, 2018)

Jury Selection: “We further note that ODIN, in a portion of its first issue on the appeal, asserts that the trial court erred in denying its request to “elicit testimony” from Juror No. 8 at the new-trial hearing. . . . Here, the record does not show that ODIN ever requested that the trial court allow it to present the testimony of Juror No. 8 on the issue of juror disqualification or her purported “Warrant for Arrest.” n. 8 (n. 8 ODIN directs this Court to a single sentence in its reply to Marathon’s response to its new-trial motion, stating “ODIN welcomes the opportunity for Marathon and ODIN to examine [Juror No. 8] on this limited topic at the Court’s convenience.” This is not sufficient to preserve, for appellate review, ODIN’s complaint that the trial court erred in not granting its new-trial motion because it prohibited ODIN from eliciting testimony from Juror No. 8). See Tex. R. App. P. 33.1(a);” ODIN Demolition & Asset Recovery, LLC v. Marathon Petroleum Co., LP, No. 01-17-00438-CV, 2018 Tex. App. LEXIS 7168, at *16-18 (App.—Houston [1st Dist.] Aug. 30, 2018)

You must comply with the pertinent rules:

Special Appearance: “Turning to the present case, Rodriguez [*9] sent not one but two letters—received by the district clerk on March 2—requesting the plea in intervention and third-party petition be dismissed. Both letters were signed by Rodriguez, displayed Rodriguez’s full name at the top, and listed his address as 459 Dini Rosi, El Paso, Texas. The letters also identified the parties and the case number. As in Lippmann, while Rodriguez’s letter was not in the standard form of an answer, it nonetheless met the requirements to qualify as a pro se answer. Lippmann, 826 S.W.2d at 138. At the very least, it constituted an appearance. See In re R.K.P., 417 S.W.3d 544, 551 (Tex.App.–El Paso 2013, no pet.)(holding that a signed letter from a pro se defendant stating she had been temporarily hospitalized and requesting a continuance—and also bearing the letterhead of the hospital and other contact information—at least constituted an appearance). Because Rodriguez made a general appearance before filing his special appearance, he failed to strictly comply with Rule 120a. Tex.R.Civ.P. 120a(1). An amendment adding a verification could not have cured this defect. Dawson-Austin, 968 S.W.2d at 322. Accordingly, Rodriguez’s first issue is overruled.” Rodriguez v. Marcus, No. 08-15-00252-CV, 2018 Tex. App. LEXIS 7226, at *8-9 (App.—El Paso Aug. 30, 2018)

Under some circumstances, you can thwart an argument that an issue was tried by consent if you object to the lack of pleading prior to the submission of the charge to the jury:

Pleading: “We cannot conclude that the defense which the trial court found meritorious was tried by consent. Prior to the close of evidence, Perez’s counsel specifically objected to trial by consent on the issue of Perez’s breach, noting that Taylor “has filed no claims” against his client, and the trial court overruled the objection. See id.; Tex. Indus., Inc. v. Vaughan, 919 S.W.2d 798, 803 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (“An objection, on the record, prior to the submission of the charge to the jury precludes trial by consent.”); cf. Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009) (“When both parties [*14] present evidence on an issue and the issue is developed during trial without objection, any defects in the pleadings are cured at trial, and the defects are waived.”). And although both Perez and Taylor testified that Perez failed to comply with the provisions of the agreement concerning insurance coverage, the record as whole does not clearly reflect that the issue of Perez’s breach was developed under circumstances indicating both parties understood the issue was present in the case. See Prize Energy Res., L.P., 345 S.W.3d at 567. Thus, these circumstances do not present an “exceptional” case warranting application of the trial by consent doctrine. See Guillory, 442 S.W.3d at 690; Greene, 174 S.W.3d at 301. Because Taylor did not plead his affirmative defense and it was not tried by consent, the trial court had no authority to find that his breach was excused by Perez’s prior material breach. See Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied) (“If an affirmative defense is not pleaded or tried by consent, it is waived, and the trial court has no authority to make a fact finding on that issue.”). We sustain Perez’s second issue.” Perez v. Bradford’s All Am., No. 13-17-00365-CV, 2018 Tex. App. LEXIS 6826, at *13-14 (App.—Corpus Christi Aug. 28, 2018)

And then there were more than a dozen cases holding that parties had not preserved error because they failed to raise 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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