Error Preservation in Texas Civil Cases, October 25, 2018

October 25, 2018

Dear Folks:

The cases included in this blog entry cover the following error preservation topics:

Your complaint must be sufficiently specific

Constitutional

You can first complain on appeal about the fact that the summary judgment purports to decide a claim not addressed in the summary judgement motion-an error preservation doctrine seemingly at odds with the fact that you must complain about a defect in a non-msj judgment in the trial court to preserve error

You must comply with the pertinent rules–such Rule 103 requiring an offer of proof when the trial court excludes your evidence

You must get a ruling on your complaint

Parties
Severance

And now, for the specific topics:

Your complaint must be sufficiently specific. The courts don’t decide very many error preservation fights on the specificity question, so you might want to take note of this case:

Constitutional: “Mindful of the fact that a party need not employ hyper-technical or formalistic words or phrases to preserve a complaint, see Clark, 365 S.W.3d at 339, we conclude that Wargocz’s objection was insufficiently specific to alert the trial court to the facial challenge he attempts to raise on appeal. With regard to his due-process objection, Wargocz made no reference to the Constitution or the Due Process Clause, nor did he challenge the validity of the harassment or stalking statutes on the ground that their use of the phrase “harass, annoy, alarm, abuse, torment, embarrass, or offend” rendered them impermissibly vague. And nothing else in the record indicates that the trial court understood Wargocz’s objection as including the facial attack he has asserted on appeal. See State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013) (noting an objection is sufficiently specific if the record demonstrates the trial court understood the basis of the objecting party’s request). Accordingly, because Wargocz never raised his facial challenge in the trial court, he failed to preserve that issue for review.” Wargocz v. Brewer, No. 02-17-00178-CV, 2018 Tex. App. LEXIS 8339, at *14-15 (App.—Fort Worth Oct. 11, 2018)

You can first complain on appeal about the fact that the summary judgment purports to decide a claim not addressed in the summary judgement motion-an error preservation doctrine seemingly at odds with the fact that you must complain about a defect in a non-msj judgment in the trial court to preserve error:

Summary Judgment: “In its first responsive argument, Roberts contends that Sanchez waived any argument that Roberts’s motion failed to address Sanchez’s purported strict products liability claim. Roberts notes that Sanchez did not file special exceptions and did not complain in either her motion to reconsider or motion for new trial that the trial court granted summary judgment on a claim not addressed in Roberts’s motion. Roberts contends that, because Sanchez failed to raise this issue in the trial court, the issue cannot be considered on appeal as grounds for reversal.

We disagree with Roberts’s contention. A non-movant is not required to except to a movant’s failure to assert specified grounds in a motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (plurality op.). Summary judgment cannot be granted except on the [*4] grounds expressly presented in the motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002). We, therefore, cannot affirm summary judgment on a basis not stated in Roberts’s motion. See McConnell, 858 S.W.2d at 339. Sanchez has not waived her complaint that the trial court granted summary judgment on grounds that were not presented in the motion.” Sanchez v. Roberts Truck Ctr. of Tex., LLC, No. 07-17-00213-CV, 2018 Tex. App. LEXIS 8213, at *3-4 (App.—Amarillo Oct. 9, 2018)

Take note that, with regard to complaints defects in judgments not the product of summary judgments, one has to preserve those complaints in a motion for new trial or motion to modify/correct/reform the judgment. Solomon v. Steitler, 312 S.W.3d 46, 60 (Tex. App.—Texarkana 2010, no pet.), and cases cited therein; Robles v. Mann, No. 13-14-00211-CV, 2016 WL 1613316, 2016 Tex. App. LEXIS 4135, at *15 (Tex. App.—Corpus Christi Apr. 21, 2016, no pet.); D&KW Family, L.P. v. Rampart Capital Corp., No. 01-01-00156-CV, 2002 WL 1585920, 2002 Tex. App. LEXIS 5100, at *5 (Tex. App.—Houston [1st Dist.] July 18, 2002, pet. denied); Holland v. Hayden, 901 S.W.2d 763, 765 (Tex. App.—Houston [14th Dist.] 1995, writ denied)

You must comply with the pertinent rules–such Rule 103 requiring an offer of proof when the trial court excludes your evidence:

Evidence: “Thus, when a trial court excludes evidence, the proponent must preserve the evidence in the record in order to complain of its exclusion on appeal. Fletcher, 57 S.W.3d at 606; see also Tex. R. Evid. 103(a). If a party does not make an offer of proof, it must introduce the excluded evidence into the record by a formal bill of exception. Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 494-95 (Tex. App.—Fort Worth 1999, pet. denied); see also Tex. R. App. P. 33.2. Failure to demonstrate the substance of the excluded evidence or testimony through an offer of proof or bill of exception results in a waiver of any error in its exclusion. Akukoro, 2013 Tex. App. LEXIS 15302, 2013 WL 6729661, at *6; Sw. Country Enters., 991 S.W.2d at 494. Here, we do not find, and Jennings does not direct us to, any place in the record in which he actually offered in the trial court, either at the hearing on the motion for enforcement or at the hearing on his motion for new trial, the evidence and testimony, i.e., regarding his payment of taxes due on, and any lack of insurability of, the Yida property, that he complains was excluded. See Akukoro, 2013 Tex. App. LEXIS 15302, 2013 WL 6729661, at *6; Fletcher, 57 S.W.3d at 606. There being no actual offer of the complained-of evidence and testimony in the [*10] trial court, no ruling by the trial court, and no offer of proof or bill of exception, we conclude that Jennings has waived any error in such exclusion.” Jennings v. Martinez, No. 01-17-00553-CV, 2018 Tex. App. LEXIS 8520, at *9 (App.—Houston [1st Dist.] Oct. 18, 2018)

You must get a ruling on your complaint:

Parties: “Relevant to our analysis, to preserve error for appeal, a party must show that after making its complaint, the trial court either (1) “ruled on the request, objection, or motion, either expressly or implicitly” or (2) “refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.” See TEX. R. APP. P. 33.1. Here, although CE filed an application for status conference requesting for the trial court to add Unison Site Management, LLC and T14 MelTel to the suit and for production of certain documents, CE failed to obtain a ruling from the trial court. At the hearing on the application for status conference and on the competing motions for summary judgment, CE argued that the trial court was required to add the above-listed parties. At  the end of the hearing, the trial court denied CE’s motion for summary judgment. Unison asked the trial court to clarify that it meant it was granting Unison’s motion for summary judgment, and the trial court stated that it was. The Norrells also asked the trial court to clarify if it was dismissing them from the cause, and the trial court stated it was. However, CE did not ask the trial court for a ruling on its request to add the parties listed above or to rule on its request for production. Thus, the trial court did not explicitly rule on CE’s requests. Moreover, we conclude that by granting summary judgment in favor of Unison and the Norrells, the trial court did not implicitly deny CE’s requests. See Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 662 (Tex. App.-Waco 2002, no pet.) (explaining that a ruling on a motion for summary judgment does not constitute an implicit ruling on the non-prevailing party’s objections to summary judgment evidence). Therefore, we conclude that CE failed to preserve error. We overrule CE’s fifth issue.” Enhancement v. Norrell, No. 13-16-00581-CV, 2018 Tex. App. LEXIS 8456, at *16-17 (App.—Corpus Christi Oct. 18, 2018)

Severance: “We overrule Appellants Rieder, Rapee, and Cadbury’s second issue arguing that the trial court should have dismissed Intervenor Meeker’s first claim for declaratory relief—regarding his right to hire Woods without incurring liability under the Cadbury Operating Agreement—for lack of personal jurisdiction because that claim falls within the scope of the forum-selection clause. See, e.g., Bloom Bus. Jets, 522 S.W.3d at 770. Because—as pointed out by Intervenors—Appellants Rieder, Rapee, and Cadbury did not set a hearing on their motion to sever and abate Intervenor Meeker’s second claim for declaratory relief regarding his right to terminate the CQuentia/Cadbury Series Agreement and because the trial court did not rule on it, Appellants Rieder, Rapee, and Cadbury’s complaint that the trial court did not grant that motion is not properly before us. See Tex. R. App. P. 33.1 (stating that to “preserve a complaint for appellate review, the record must show . . . that the trial court . . . ruled on the request . . . either expressly or implicitly”).” Rieder v. Meeker, No. 02-17-00176-CV, 2018 Tex. App. LEXIS 8537, at *33 (App.—Fort Worth Oct. 18, 2018)

That’s all for now, buckaroos.  Y’all have a good weekend.

Yours,

Steve Hayes (shayes@stevehayeslaw.com)

www.stevehayeslaw.com

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