Error Preservation in Texas Civil Cases, October 8, 2018

October 8, 2018

Dear All:

While it involved a complaint that was not preserved, and I have typically quit mentioning those in this blog, you need to read both the majority and dissenting opinions in a case which dealt with “agreed to” language in a judgment, and when such language waives a complaint in an agreed judgment (and the effect of that waiver).  I promise the facts alone are worth reading.  In the Estate of Nielsen, No. 02-17-00251-CV, __WL__, 2018 Tex. App. LEXIS 7915, at *19-20 (Tex. App.—Fort Worth Sep. 27, 2018, no pet. hist.). These opinions teach us the fraught-filled nature of this area of the law.

The cases summarized below in this blog entry include cases dealing with:

You have to get a ruling on your objections to summary judgment evidence

Summary Judgment Evidentiary Objections

Some complaints may be raised for the first time on appeal

Affidavit
Juvenile

To preserve your complaint, you must comply with other pertinent rules

Findings of Fact (Family Law)
Lack of Capacity
Lack of Capacity

The complaint you raise on appeal must be the complaint you raised at trial

Damages
Legal and Factual Sufficiency

You have to get a ruling on your objections to summary judgment evidence–and while the Supreme Court has indicated that such a ruling may be implied (after previously telling us it had to be in writing and signed), such a ruling is not implied by a “ruling on the motion for summary judgment” nor the fact that “the trial court’s judgment in this case includes a Mother Hubbard clause stating that ‘[a]ll other relief not expressly granted is denied[,]”:

Summary Judgment Evidentiary Objections: “On appeal, Houle complains that the records attached to Trittipoe’s affidavit were not properly authenticated, were incomplete, and were not true and complete copies of the originals because they bore redaction of Houle’s specific account number with Capital One.

These purported defects are purely formal. See Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.–San Antonio 2000, no pet.)(objection to deposition or affidavit, that is, statement in writing of a fact or facts signed by party making statement, sworn to before officer authorized to administer oaths, and officially certified to by officer under his seal of office, on basis that statement does not establish foundation for statement is purely formal defect), citing Leggat, 904 S.W.2d at 645-46. Because Houle failed to object to the purported formal defects and secure a ruling from the trial court in order to preserve error, he may not raise these complaints for the first time on appeal. Tex.R.Civ.P. 166a(f); see Seim, 551 S.W.3d at 166, citing Well Sols., Inc., 32 S.W.3d at 317.

Although the Texas Supreme Court has recognized that an implicit ruling may be sufficient to preserve an issue for appellate review, it has clarified that the trial court’s ruling must be clearly implied by the record. See Seim, 551 S.W.3d at 166, citing In the Interest of Z.L.T., J.K.H.T., and Z.N.T., 124 S.W.3d 163, 165 (Tex. 2003). In Seim, the Court acknowledged the correct reasoning of the San Antonio Court [*13] of Appeals in Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.–San Antonio 2000, no pet.) when that court declared: “[R]ulings on a motion for summary judgment and objections to summary judgment evidence are not alternatives; nor are they concomitants. Neither implies a ruling–or any particular ruling–on the other. In short, a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being understood’ from the ruling on the motion for summary judgment.” See Seim, 551 S.W.3d at 165.

We agree that a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment. See Seim, 551 S.W.3d at 166, citing Well Sols., Inc., 32 S.W.3d at 317. Moreover, that the trial court’s judgment in this case includes a Mother Hubbard clause stating that “[a]ll other relief not expressly granted is denied[,]” does not constitute a showing that the trial court ruled on Houle’s objections to Capital One’s summary judgment evidence. See Lissiak v. SW Loan OO, L.P., 499 S.W.3d 481, 488 (Tex.App.–Tyler 2016, no pet.). We conclude the trial court did not implicitly rule on Houle’s objections to Capital One’s summary-judgment evidence. See Seim, 551 S.W.3d at 166. As these complaints have not been preserved, they are waived. Tex.R.App.P. 33.1.” Houle v. Capital One Bank United States, No. 08-16-00234-CV, 2018 Tex. App. LEXIS 7942, at *12-13 (App.—El Paso Sep. 28, 2018)

Some complaints may be raised for the first time on appeal–like a defect of substance in an affidavit, to wit, the failure to demonstrate lack of personal knowledge, and a juvenile’s complaint that he was not competent to stand trial on his delinquency trial:

Affidavit: “Houle contends on appeal as he did in the trial court that Trittipoe failed to demonstrate adequate personal knowledge underlying her testimony for proving up the attached Capital One business records. We have previously held that a lack of personal knowledge, reflected in the affiant’s testimony itself and not just as the lack of a formal recitation, is a defect of substance that may be raised for the first time on appeal.” Houle v. Capital One Bank United States, No. 08-16-00234-CV, 2018 Tex. App. LEXIS 7942, at *14 (App.—El Paso Sep. 28, 2018)

Juvenile: “Thus, both the Court of Criminal Appeals and the Legislature have recognized that, in a criminal proceeding, the procedural safeguards necessary to guard the defendant’s right not to be tried when she is incompetent to stand trial must include a requirement that the trial court, on its own motion, make an inquiry into the defendant’s competency to stand trial when sufficient evidence comes to its attention. Because the failure to observe adequate procedures to protect this right deprives the defendant  of her due process right to a fair trial, we find that a complaint asserting the failure of a trial court on its own motion to make inquiry into the defendant’s competency to stand trial is included among the waivable-only rights that may be asserted for the first time on appeal. See Pate v. Robinson, 383 U.S. 375, 384, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). Therefore, we find that H.C. did not have to preserve her complaint in the juvenile court.” In re H.C., No. 06-18-00006-CV, 2018 Tex. App. LEXIS 8008, at *16-17 (App.—Texarkana Oct. 3, 2018)

To preserve your complaint, you must comply with other pertinent rules:

Findings of Fact (Family Law): “Janice additionally complains that the trial court’s findings of fact do not address her other two claims for reimbursement, but she did not request that the court make additional findings on these reimbursement claims. A trial court must issue written findings of fact if a party requests them. Tex.R.Civ.P. 296. In a suit for dissolution of marriage, the trial court’s findings of fact and conclusions of law shall include, in addition to any other findings or conclusions required or authorized by law, the characterization and value of all assets, liabilities, claims, and offsets [*15] on which disputed evidence has been presented. Tex.Fam.Code Ann. § 6.711(a)(West Supp. 2017). A request for findings of fact and conclusions of law made under Section 6.711 must conform to the Rules of Civil Procedure. Tex.Fam.Code Ann. § 6.711(b)(West Supp. 2017). The findings of fact and conclusions of law required by Section 6.711 are in addition to any other findings or conclusions required or authorized by law. Tex.Fam.Code Ann. § 6.711(c)(West Supp. 2017). After a trial court files original findings of fact and conclusions of law, any party may timely request that the trial court make specified additional or amended findings or conclusions. Tex.R.Civ.P. 298. When a party fails to timely request additional findings of fact and conclusions of law, it is deemed to have waived the right to complain on appeal of the court’s failure to enter additional findings. . . . The trial court did not make any express findings on Janice’s claims for reimbursement of the community for the payment of ad valorem taxes on Billy’s separate real property and for payments on loans to acquire equipment, livestock, feed, and to build improvements for the Dairy. Janice did not request additional findings from the court. Consequently, Janice has waived her complaints related to these reimbursement claims.” Barton v. Barton, No. 08-15-00110-CV, 2018 Tex. App. LEXIS 7940, at *14-16 (App.—El Paso Sep. 28, 2018)

Lack of Capacity: “In his sixth issue, Hawkins asserts that he is not doing business as Genesis II Church of Health and Healing Chapter 119. This appears to be a challenge to the capacity in which Hawkins was sued, and such a challenge must be raised in a verified answer. See Tex. R. Civ. P. 93. Because Hawkins did not file a verified answer challenging capacity, this argument has not been preserved for our review. See Tex. R. App. P. 33.1(a).” Hawkins v. State, No. 14-17-00713-CV, 2018 Tex. App. LEXIS 7863, at *9 (App.—Houston [14th Dist.] Sep. 27, 2018)

Lack of Capacity: “CCI’s failure to raise capacity [*8] prior to the granting of the summary judgment is fatal because capacity is conceived as a procedural issue dealing with the procedural qualifications of a party to proceed with litigation, and capacity issues are waived if not timely raised. . . . Stated differently, because CCI did not raise its capacity contention prior to the trial court’s summary-judgment order resolving liability under Circle X’s contractual claims, CCI waived this contention. See Lovato, 171 S.W.3d at 849; Nootsie, 925 S.W.2d at 662; see also Tex. R. Civ. P. 93(1). . . .Here, CCI challenges Circle X’s ability to file suit under the deed, which, in light of the aforementioned case law, is most aptly a capacity challenge, not a standing challenge.” CCI Gulf Coast Upstream, LLC v. Circle X Camp Cooley, Ltd., No. 10-17-00325-CV, 2018 Tex. App. LEXIS 7828, at *7-9 (App.—Waco Sep. 26, 2018)

The complaint you raise on appeal must be the complaint you raised at trial:

Damages: “The Martins argue that an attempt to recover lost profits is an attempt to recover on the contract; but because the trial court instructed the jury that Cottonwood could recover for the “value” of the work done, this was a recovery in quantum meruit for which Cottonwood could not recover in addition to lost profits. The Martins contend the Court should have used the phrase “work done” rather than the phrase “value of the work done.” But that was not the objection the Martins made to the trial court. There, the Martins only objected that there was “no evidence of the value of the work performed before this jury, and that assumes there was a value for work performed.” The Martins did not object that “value” corresponded to a recovery in quantum meruit which is inconsistent with a recovery for breach of contract. HN2 In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court. See In re D.E.H., 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet. denied); Kershner v. State Bar of Tex., 879 S.W.2d 343, 347 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Because the objection asserted at trial does not comport with the complaint argued [*6] on appeal, the second portion of the Martins’ first issue that an improper measure of damages was submitted is not preserved. See Tex. R. App. P. 33.1(a).” Martin v. Cottonwood Creek Constr., LLC, No. 10-17-00005-CV, 2018 Tex. App. LEXIS 8050, at *5-6 (App.—Waco Oct. 3, 2018)

Legal and Factual Sufficiency: “We agree with Warner that JEM did not preserve its legal or factual sufficiency challenge of the DTPA elements included in issues one, two, and four. Despite JEM’s argument in its reply brief, we are unable to read its motion for new trial, where it complained that damages were manifestly too large for Warner and manifestly too small for JEM because of the jury’s “clerical” error, as bringing to the trial court’s attention a challenge to the sufficiency of the evidence supporting jury findings on the ultimate fact issues challenged by issues one, two, and four. Moreover, we have carefully reviewed the entire evidentiary record according to the above standards and find sufficient evidence permitted the jury to implicitly find in favor of Warner on the elements JEM challenges by those issues. JEM’s first, second, and fourth issues are overruled.” Jem Int’l, Inc. v. Warner Props., L.P., No. 07-17-00042-CV, 2018 Tex. App. LEXIS 7764, at *11 (App.—Amarillo Sep. 24, 2018)

All for now.  Hope this helps.  Y’all take care.

Yours,

Steve Hayes (shayes@stevehayeslaw.com)

www.stevehayeslaw.com

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