Error Preservation in Texas Civil Cases, 5/25/19

May 25, 2019

Dear All:

Table of Contents:

The Supreme Court held that an issue was expressly presented in a motion for summary judgment–and also reminded us that our complaints must be raised in the trial court

-Summary Judgment
-Quasi-estoppel and waiver

In one case, a court held that a party did not waive its complaint about the judgment by “drafting, submitting, and approving the judgment.”

-Judgment

One court of appeals held, in effect, that the complaint was sufficiently specific

-Constitutional

Your complaint on appeal must comport with the complaint you made in the trial court–though it looks like to me this is a subject matter jurisdiction/standing complaint, which (even if erroneous) can be raised for the first time on appeal

-Subject matter jurisdiction

Your complaint must be timely

-Jury Trial

You must make the trial court aware of your complaint–it’s not enough to just file the motion

-Continuance

The Blurbs

Here is a case in which the Supreme Court held that an issue was expressly presented in a motion for summary judgment–and another in which it reminds us that our complaints must be raised in the trial court:

Summary Judgment: “The Newspaper argues it cannot be liable for defamation for accurately reporting the allegations of chamber members because it is true that these third parties made the allegations of impropriety against Carter. Carter asserts that the Newspaper waived this issue because it was not presented to the trial court in its motion for summary judgment, but we disagree. The Newspaper argued in its motion for summary judgment that statements in the articles regarding allegations that had been made against Carter were substantially true. Although the Newspaper did not label the statements as “accurate reporting of allegations,” it nevertheless presented the issue to the trial court. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”).” Scripps Np Operating v. V., No. 17-0046, 2019 Tex. LEXIS 494, at *21 (May 24, 2019)

Quasi-estoppel and waiver: “In an argument raised for the first time on appeal, the plaintiffs also assert quasi-estoppel and waiver principles preclude Garza from relying on section 101.106(f) based on his contractual agreement to refrain from acting as a police officer while working as a courtesy patrol officer. Garza counters that these theories are waived and, in the alternative, lack merit because any benefit to the apartment complex and any attempt to circumscribe his responsibilities by private-party contract are irrelevant to whether he was objectively doing his job as a peace officer….The plaintiffs’ final arguments—that the doctrines of quasi-estoppel and contractual waiver preclude section 101.106(f)’s application—are waived and, in the alternative, lack merit. These arguments, which are based on Garza’s purported agreement to adhere to the apartment complex’s policies and procedures for courtesy patrol officers, were raised for the first time on appeal. n. 79 n. 79 See Tex. Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (constitutional claim on appeal in paternity suit waived by failure to raise complaint at trial).” Garza v. Santellana, No. 17-0724, 2019 Tex. LEXIS 497, at **13, 23 (May 24, 2019)

Here is a case in which a court held that a party did not waive its complaint about the judgment by “drafting, submitting, and approving the judgment.”

Judgment: “Before turning to the merits, we first address Arriaga’s assertion that Edes waived any complaint regarding the judgment by drafting, submitting, and approving the judgment signed by the trial judge. He argues the doctrine of “invited error” precludes such complaints.

Under some circumstances, when a party files a motion to enter judgment and the trial court grants the motion and renders the requested judgment, the movant cannot later complain of that judgment. Davenport v. Hall, No. 04-14-00581-CV, 2019 WL 1547617, at *7 (Tex. App.—San Antonio Apr. 10, 2019, no pet. h.). The reason for this rule is that a party may not request the trial court take an action and then complain on appeal when the trial court did what it was asked to do. Id.

The supreme court has recognized, however, that “[t]here must be a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms.” Hooks v. Samson Lone Star, Ltd. P’ship, 457 S.W.3d 52, 67 (Tex. 2015) (quoting First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989) (per curiam)). A proposed judgment submitted by a party need not note the submitting party’s disagreement with the contents of the judgment to maintain the right to appeal. Andrew Shebay & Co., P.L.L.C. v. Bishop, 429 S.W.3d 644, 647 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Rather, clear objections in the trial court or post-trial proceedings evidencing disagreement with the judgment are sufficient. Id.

Here, the record does not contain a motion for judgment; rather, Edes filed a letter with the court submitting a proposed judgment. The letter, signed by Edes’s attorney, informed the judge that counsel approved the judgment and was forwarding a copy to opposing counsel for signature.

Ultimately, the judgment was signed by the trial judge. The statement “APPROVED BY” was above Edes’s attorney’s signature on the judgment.

Arriaga argues that Edes should have reserved a right to complain in his letter submitting the proposed judgment or noted that he did not approve as to the substance of the judgment. Having failed to do so, Arriaga contends Edes may not attack the judgment. Admittedly, Edes did not express any reservations about the judgment. But, even assuming his approval was to both form and substance of the judgment, Edes objected at the charge conference when Arriaga successfully argued to exclude from the jury’s consideration issues on lost wages and mental anguish. Then, after the trial court signed the judgment, Edes moved for a new trial on the same grounds as well as others. Finally, the judgment itself acknowledges that Edes’s objections to the charge were overruled. See Hooks, 457 S.W.3d at 67 (explaining that when argument asserted on appeal is not inconsistent with the judgment, the argument is not waived even when plaintiff files proposed judgment). Given all the circumstances in this case, we cannot conclude that Edes has waived his right to complain about the judgment.” Edes v. Arriaga, No. 05-17-01278-CV, 2019 Tex. App. LEXIS 4319, at *6-9 (Tex. App.—Dallas May 24, 2019)

Here is a case in which the court of appeals held, in effect, that the complaint was sufficiently specific:

Constitutional: “Mother nevertheless contends section 161.211(a), as applied to her, is unconstitutional because she “first became aware of the fraud, duress, or coercion in her execution of the affidavit” after section 161.211(a)’s six-month period elapsed. . .The Department and Intervenors maintain Mother neither preserved her constitutional challenge in the trial court nor adequately briefed her argument that a due process right was violated. To preserve a constitutional claim for appellate review, a party must raise the issue in the trial court. Tex. R. App. P. 33.1; In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (for appellate review, party must present arguments, including constitutional arguments, to trial court by timely request, motion, or objection, state specific grounds therefor, and obtain ruling). Although Mother did not identify her constitutional challenge as an “as applied” challenge in the trial court, she argued that a section 161.211(a) dismissal would violate her due process rights under the facts presented in this case. The trial court granted Intervenors’ plea to the jurisdiction, rejecting Mother’s argument. Accordingly, [*7] we conclude Mother sufficiently preserved error for this appeal.” R.M., No. 05-18-01127-CV, 2019 Tex. App. LEXIS 4318, at *6-7 (Tex. App.—Dallas May 24, 2019)

Your complaint on appeal must comport with the complaint you made in the trial court–though it looks like to me this is a subject matter jurisdiction/standing complaint, which (even if erroneous) can be raised for the first time on appeal:

Subject matter jurisdiction: “In her second issue, Mother contends the trial court should have denied Intervenors’ petition in intervention because the trial court must have subject matter jurisdiction over any claims for relief asserted by Intervenors and, in this case, Intervenors specifically assert the trial court lacked subject matter jurisdiction. Mother further claims Intervenors failed to show they could have brought all or part of the same suit or would have been able to defeat all or part of the record if suit were brought against them. . . . . To preserve error for appellate review, a party must make a timely request, objection, or motion in the trial court stating the grounds for the ruling being sought; and the trial court must rule on the request, objection, or motion or the party must object to the trial court’s refusal to rule. Tex. R. App. P. 33.1; Tate v. Andrews, 372 S.W.3d 751, 754 (Tex. App.—Dallas 2012, no pet.). The objecting party’s argument on appeal must comport with its argument in the trial court. Knapp v. Wilson N. Jones Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.). Mother filed no written motion to strike the petition in intervention and, during the trial court’s hearing, objected to the intervention only on the basis that Intervenors lacked standing to intervene under the family [*17] code. Intervenors responded that the rules of civil procedure — and not the family code — applied to Mother’s bill of review and Intervenors clearly had a justiciable interest in that the bill of review sought to undo the termination of Mother’s parental rights to their adopted child. Mother did not object that Intervenors’ pleadings refuted subject matter jurisdiction or to Intervenors’ justiciable interest apart from whether they had standing under the family code. Because Mother did not raise these allegations of error in the trial court, she has not preserved the issue for appellate review. See Tex. R. App. P. 33.1(a)(1);” R.M., No. 05-18-01127-CV, 2019 Tex. App. LEXIS 4318, at *16-17 (Tex. App.—Dallas May 24, 2019)

Your complaint must be timely:

Jury Trial: “To invoke and perfect the right to a jury trial in a civil case, a party must comply with the applicable rules of civil procedure. Singh v. Fed. Nat’l Mortg. Ass’n, No. 03-14-00354, Reporter 2014 Tex. App. LEXIS 13030, 2014 WL 6893696, at *3 (Tex. App.—Austin Dec. 5, 2014, no pet.) (mem. op.). Rule 216 requires a party to make a jury request and pay [*6] the jury fee “a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance.” Tex. R. Civ. P. 216. The clerk’s record does not reflect that a jury fee was paid, and Wethy has not directed us to any record or evidence to the contrary. Nevertheless, for purposes of this appeal, we will assume Wethy perfected his right to a jury trial. Still, a party that has perfected its right to a civil jury trial may subsequently waive that right. See In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no pet.); Addicks v. Sickel, No. 02-03-00218-CV, 2005 Tex. App. LEXIS 2498, 2005 WL 737419, at *2-3 (Tex. App.—Fort Worth Mar. 31, 2005) (mem op.). To preserve his complaint that he was denied his perfected right to a trial by jury, Wethy was required to either object on the record to the county court’s action or indicate affirmatively in the record that he intended to stand on his perfected right to a jury trial. See M.P.B., 257 S.W.3d at 811; Addicks, 2005 Tex. App. LEXIS 2498, 2005 WL 737419, at *2-3. Showing preservation is a tall order here. In the absence of a reporter’s record, we can only look to the clerk’s record to ascertain whether Wethy preserved his complaint about the denial of a jury trial. Nothing in the clerk’s record shows that Wethy objected to the lack of a jury trial or affirmatively indicated that he intended to stand on his perfected right to a jury trial before the county court conducted the bench trial. The clerk’s record reflects that Wethy’s post-judgment motion for reconsideration was the first time he complained about the lack of a jury trial, and this was too late to preserve error.” Wethy v. Fannie Mae, No. 02-17-00329-CV, 2019 Tex. App. LEXIS 4280, at *5-7 (Tex. App.—Fort Worth May 23, 2019)

You must make the trial court aware of your complaint–it’s not enough to just file the motion:

Continuance: “A trial court is not required to consider a motion that is not brought to its attention. See Murphree v. Cooper, No. 14-11-00416-CV, 2012 Tex. App. LEXIS 4829, 2012 WL 2312706, at *1 (Tex. App.—Houston [14th Dist.] June 19, 2012, no pet.) (mem. op.); In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling. See Murphree, 2012 Tex. App. LEXIS 4829, 2012 WL 2312706, at *1; Smith, 263 S.W.3d at 96; see also Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 448-49 (Tex. App.—Dallas 2011, no pet.) (filing motion for continuance, and setting motion for hearing, was insufficient to bring [*5] the motion to the attention of the trial court). When the record does not show that a motion for continuance was filed and brought to the trial court’s attention before final judgment is rendered, any error is not preserved. See Tex. R. App. P. 33.1(a); Murphree, 2012 Tex. App. LEXIS 4829, 2012 WL 2312706, at *1. Father filed his motion for continuance of the SAPCR trial setting approximately twelve hours before trial was set to begin. He did not set the motion for a hearing. Neither Father nor his counsel appeared at the time set for trial to present and argue the merits of Father’s motion for continuance. The record does not show that Father presented the motion for continuance to the trial court with a request for a ruling or otherwise brought it to the trial court’s attention before the final judgment was rendered. The record also reveals no ruling on the motion. Thus, appellant has failed to preserve this issue for appellate review. See Tex. R. App. P. 33.1(a).” In the Interest of W.A.B., No. 14-18-00181-CV, 2019 Tex. App. LEXIS 4117, at *4-5 (Tex. App.—Houston [14th Dist.] May 21, 2019)

As always, courts issued a litany of decisions in which they held that parties had failed to preserve error by failing to raise complaints in the trial court.

I hope this helps.  All for now.

Yours, Steve Hayes (shayes@stevehayeslaw.com)

www.stevehayeslaw.com; 817/371-8759

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