Error Preservation in Texas Civil Cases, August 8, 2020

August 8, 2020

Dear All:

The courts of appeals continue their steady march to the end of their fiscal year, and we see the normal slight uptick in the number of error preservation opinions.

Table of Contents

When you argue a basis to support your TCPA motion at the hearing on the motion, you have preserved that basis (disclaimer–I argued this case on appeal for the prevailing appellants)

Disclaimer of Reliance

Sometimes, one can claim the trial court impliedly ruled on one’s complaint

Motion to Vacate

You have to get a ruling on your complaint

Arbitration

You have to comply with other pertinent rules

Capacity
Findings
Fraud (Affirmative Defense)
Personal Jurisdiction

The Blurbs

When you argue a basis to support your TCPA motion at the hearing on the motion, you have preserved that basis (disclaimer–I argued this case on appeal for the prevailing appellants):

Disclaimer of Reliance: “Regardless, however, of whether disclaimer of reliance is an affirmative defense, and regardless of whether Appellants’ asserting it in their answer put the issue before the trial court, see Tex. Civ. Prac. & Rem. Code Ann. § 27.006 (requiring trial court to consider pleadings in ruling on TCPA motion), Appellants raised their disclaimer-of-reliance argument at the TCPA hearing. n. 7. When Sutherland objected to the argument, Appellants countered that reliance was an element of a number of Sutherland’s claims and that the disclaimer language was in the sales agreement, which Sutherland had attached to its response as [*26] evidence. Their attorney asserted that they needed to be able to talk about the elements of the claim and the evidence Sutherland had attached to its response. The Supreme Court of Texas has stated that arguing a basis for the TCPA’s applicability at the hearing on a TCPA motion is sufficient to preserve that argument for appellate review, indicating that Appellants’ arguing the issue at the hearing is sufficient to raise the matter in the trial court as a basis for granting the TCPA motion. n. 8 See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018).”  SSCP Mgmt. v. Sutherland/Palumbo, LLC, No. 02-19-00254-CV, 2020 Tex. App. LEXIS 6241, at *25-26 (Tex. App.—Fort Worth Aug. 6, 2020)

N. 7 Sutherland asserts that the trial court “did not expressly consider [the issue of disclaimer of reliance] during the hearing,” but neither did it expressly decline to consider it, despite Sutherland’s objection, and no order states that the trial court had declined to consider it.

N. 8 Appellants also included disclaimer-of-reliance arguments in their reply to Sutherland’s TCPA response. Sutherland argued that the reply was not timely filed and that the trial court should not consider it, and it argues here that the trial court in fact did not consider it. Cf. Mission Wrecker Serv., S.A., Inc. v. Assured Towing, Inc., No. 04-17-00006-CV, 2017 Tex. App. LEXIS 7226, 2017 WL 3270358, at *3 (Tex. App.—San Antonio Aug. 2, 2017, pet. denied) (mem. op.) (noting that TCPA does not contain a deadline for filing a response to a TCPA motion but that the trial court has discretion to determine the timeliness of a response). While the trial court did not strike the reply, its order denying Appellants’ TCPA motion states that the trial court had considered the motion and Sutherland’s response (with no mention of Appellants’ reply) and had “entertain[ed] the arguments of counsel.” Because the disclaimer-of-reliance issue was brought to the trial court’s attention at the hearing, we need not decide whether the trial court should have considered Appellants’ reply.

Sometimes, one can claim the trial court impliedly ruled on one’s complaint:

Motion to Vacate: “As an initial matter, Mother claims that relator waived his complaints as to the trial court’s refusal to hold an evidentiary hearing on his motion to vacate the Order. Mother asserts that, although relator filed his objection to hearing the motion to vacate the Order by submission, [*12] relator did not set his objection prior to the hearing on the motion to vacate or request a ruling from the trial court. We conclude that by proceeding to rule on the motion to vacate the Order by submission after relator asserted his objection to this procedure, the trial court impliedly overruled relators objection and thus relator did not waive his complaints as to the trial court’s refusal to hold an evidentiary hearing on his motion to vacate the Order, and relator satisfied the requirement for a predicate request and a refusal to act.” In re V.K., No. 14-20-00491-CV, 2020 Tex. App. LEXIS 6256, at *11-12 (Tex. App.—Houston [14th Dist.] Aug. 7, 2020)

You have to get a ruling on your complaint:

Arbitration: “Additionally, Heilmann filed his motion to modify and supplemental motion to modify on September 28, 2018, and October 9, 2018, respectively, which was well after the August 30, 2018 final order confirming of the arbitration award. Because Heilmann’s motions to vacate or modify the arbitration awards were not raised or considered before or simultaneously with Jensen’s motion to confirm the arbitration awards, Heilmann waived these complaints, and “absent specific common-law or statutory grounds for vacating, modifying, or correcting an award, the reviewing court must confirm it.” See id. at 268; Tex. Civ. Prac. & Rem. Code Ann. § 171.087.” Heilmann v. Heilmann, No. 04-18-00849-CV, 2020 Tex. App. LEXIS 6143, at *6 (Tex. App.—San Antonio Aug. 5, 2020)

You have to comply with other pertinent rules:

Capacity: “Harrison’s argument is in substance, and at most, a challenge to Reiner’s capacity. Her argument fails because, among other reasons, Reiner, having been appointed the estate’s administrator, was granted the capacity to sue on the estate’s behalf. See Nootsie, 925 S.W.2d at 661. Harrison, however, did not challenge Reiner’s capacity to sue by verified pleading in the trial court pursuant to Texas Rule of Civil Procedure 93, so she cannot raise a capacity challenge for the first time on appeal. Tex. R. App. P. 33.1(a)(1). We can reject Harrison’s arguments [*16] on this ground alone, and we need not address whether Reiner was properly named as “Dependent Administrator” as opposed to “Successor Administrator.” See Vertical N. Am., Inc., 2017 Tex. App. LEXIS 8944, 2017 WL 4197027, at *2 (declining to address capacity argument on appeal because it was not raised in trial court pursuant to Tex. R. Civ. P. 93). Harrison’s arguments do not present a question of standing, and she did not preserve error in the trial court on a challenge to Reiner’s capacity to sue. Her arguments do not implicate the court’s subject-matter jurisdiction. See Nootsie, 925 S.W.2d at 661; Vertical N. Am., 2017 Tex. App. LEXIS 8944, 2017 WL 4197027, at *2. We overrule Harrison’s twenty-fifth and thirty-fifth issues.” Harrison v. Reiner, No. 14-19-00050-CV, 2020 Tex. App. LEXIS 6194, at *15-16 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020)

Findings: “When a party who files a motion to dismiss under the TCPA requests findings of fact from the trial court “on whether suit was filed to deter or prevent the movant from exercising constitutional rights and whether suit was filed for an improper purpose,” the trial court is obliged to do so. Batra v. Covenant Health System, 562 S.W.3d 696, 705 (Tex.App.–Amarillo 2018, pet. denied)(citing Tex.Civ.Prac.&Rem. Code Ann. § 27.007(a)); see also Greer v. Abraham, 489 S.W.3d 440, 443 (Tex. 2016). However, the TCPA does not obligate the trial court to act accordingly when findings of fact are requested by the non-movant. Batra, 562 S.W.3d at 705 (TCPA is silent on trial court’s duty to file findings of fact when requested by the non-movant, and thus imposes no similar duty as that owed to the movant). Here, Appellants, the non-movants, requested Findings of Fact and Conclusions of Law pursuant to Rule 296 on November 13, 2018, which were forwarded to the trial court [*6] two days later. See Tex.R.Civ.P. 296. However, when the trial court did not file the requested findings within thirty days, Appellants failed to file a notice of past due filings, which are required under Rule 297. See Tex.R.Civ.P. 297. In order to preserve an issue regarding the trial court’s findings on appeal, a party must file a past-due reminder with the trial court pursuant to Rule 297. See Ad Villarai, LLC v. Chan II Pak, 519 S.W.3d 132, 137 (Tex. 2017)(citing Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984)). Thus, as our sister court in Amarillo did in Batra, we decline to address whether the trial court should have made findings of fact and conclusions of law as requested by the non-movant under the TCPA because Appellants failed to preserve the issue on appeal. See Batra, 562 S.W.3d at 705. Appellant’s first issue is overruled.” Chambers v. Garay, No. 08-18-00213-CV, 2020 Tex. App. LEXIS 6260, at *5-6 (Tex. App.—El Paso Aug. 7, 2020)

Fraud (Affirmative Defense): “In several issues, including issues nineteen through twenty-three, Harrison complains in a conclusory manner that Reiner and U.S. Specialty engaged in fraud and collusion. She did not raise this defensive theory in the trial court, nor was any evidence introduced or findings secured regarding appellees’ purported fraud or collusion. See Tex. R. Civ. P. 94 (defense of fraud must be affirmatively pleaded); see also Assoc. Tel. Directory Publishers, Inc. v. Five D’s Pub. Co., Inc., 849 S.W.2d 894, 899 (Tex. App.—Austin 1993, no writ) (defensive fraud theory may not be raised for the first time on appeal).” Harrison v. Reiner, No. 14-19-00050-CV, 2020 Tex. App. LEXIS 6194, at *28 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020)

Personal Jurisdiction: “Wray did not file a special appearance [*14] in the trial court, which was the proper motion to contest personal jurisdiction. See Tex. R. Civ. P. 120a(1). Instead, he first filed a motion to dismiss that did not address personal jurisdiction, followed by an answer, a second motion to dismiss for lack of subject-matter jurisdiction, and a supplemental answer. Because Wray did not strictly comply with the due-order-of-pleading requirement, we hold that he entered a general appearance and waived any challenge to personal jurisdiction. See Tex. R. Civ. P. 120a(1); Jones, 496 S.W.3d at 224.” Wray v. Picard, No. 01-19-00188-CV, 2020 Tex. App. LEXIS 6226, at *13-14 (Tex. App.—Houston [1st Dist.] Aug. 6, 2020)

We also saw several cases in which parties failed to raise their complaints in the trial court.

Y’all have a good weekend, and stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, August 1, 2020

August 1, 2020

Hi, Buckaroos!  We are within sight of the end of the courts’ fiscal year, and we can expect their opinion production to ramp up over the next month.  And I’ve found that sometimes that ramped up production coincides with interesting error preservation decisions.

Table of Contents

Rarely, an issue arises about whether a trial court can consider, as evidence, the unsworn factual representations of an attorney at a hearing. Remember: you have to object to the fact that those factual representations are unsworn

Unsworn Attorney Representations at Summary Judgment Hearing

We have an interesting case in which the court of appeals held that the trial court’s forfeiture order was not void for lack of jurisdiction, and therefore the state waived its complaint about the order by failing to raise it in the trial court

Order

You have to comply with other pertinent rules

Findings and Conclusions

The Blurbs

Rarely, an issue arises about whether a trial court can consider, as evidence, the unsworn factual representations of an attorney at a hearing. Remember: you have to object to the fact that those factual representations are unsworn:

Unsworn Attorney Representations at Summary Judgment Hearing: “In its fourth issue, the State argues the trial court abused its discretion “by considering the unsworn oral representations of Martinez as evidence at the summary-judgment hearing.” However, the State did not object to any representations of fact Martinez made during the summary judgment hearing. See Tex. R. App. P. 33.1. While the State now contends it was not required to contemporaneously object because Martinez did not testify under oath, its cited authority does not support that assertion. . . . Moreover, the State’s argument is contrary to the Texas Supreme Court’s holding that while an attorney’s statements normally “must be under oath to be considered evidence . . . the opponent of the testimony can waive the oath requirement by failing to object when the opponent knows or should know that an objection [*14] is necessary.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). We therefore hold the State waived appellate review of this issue by failing to object in the trial court, and we overrule the State’s fourth issue. Tex. R. App. P. 33.1; Banda, 955 S.W.2d at 272.” State v. Forty-Five Thousand & Eight Hundred Ten Dollars & Ten Cents ($45,810.10) in United States Currency, No. 04-19-00636-CV, 2020 Tex. App. LEXIS 5875, at *13-14 (Tex. App.—San Antonio July 29, 2020)

Here is an interesting case in which the court of appeals held that the trial court’s forfeiture order was not void for lack of jurisdiction, and therefore the state waived its complaint about the order by failing to raise it in the trial court:

Order: “In its eighth issue, the State argues the summary judgment order [of forfeiture] is void because it violates article 59.08 of the Texas Code of Criminal Procedure. . . . . The State contends the trial court’s order violates this “mandatory” statute because it orders the State to return the seized funds to Gonzalez before the expiration of appellate deadlines or the issuance of a final mandate. Because the State did not raise this argument in the trial court, we may not consider it unless the State successfully shows the trial court had “no jurisdiction to enter the judgment.” Tex. R. App. P. 33.1; . . .Nothing in the first provision of article 59.08 acts as a mandatory, jurisdictional directive to trial courts. Instead, that language grants prosecutors [*30] in civil forfeiture cases permission to deposit seized funds in interest-bearing accounts. Tex. Code Crim. Proc. art. 59.08(a); see also Tex. Gov’t Code § 311.016(1). While the second provision of article 59.08 provides that a trial court “shall” distribute funds upon the rendition of a final judgment, nothing in its plain language prohibits a trial court from ordering the distribution of funds under other circumstances. Tex. Code Crim. Proc. art. 59.08(b). We conclude the State’s interpretation of article 59.08 is not supported by that statute’s plain language. . . . Because the State has not shown the trial court’s order is void, it waived its challenge under article 59.08 by failing to raise it in the trial court. Tex. R. App. P. 33.1. We overrule the State’s eighth issue.” State v. Forty-Five Thousand & Eight Hundred Ten Dollars & Ten Cents ($45,810.10) in United States Currency, No. 04-19-00636-CV, 2020 Tex. App. LEXIS 5875, at *28-31 (Tex. App.—San Antonio July 29, 2020)

You have to comply with other pertinent rules:

Findings and Conclusions: “The trial court rendered judgment by letter on August 8, 2018. Mother timely filed her request for findings of fact and conclusions of law under Rule 296 on August 10, 2018. See Tex. R. Civ. P. 296, 306c. The trial court signed the final decree on October 24, 2018; we therefore deem Mother’s request for findings of fact and conclusions of law to have been filed on that same date. See Tex. R. Civ. P. 306c. Thus, the trial court’s findings of fact and conclusions of law were due twenty days later—November 13, 2018. See Tex. R. Civ. P. 297. After the trial court did not issue them, Mother’s notice of past due findings of fact and conclusions of law was due November 23, 2018, thirty days after the date of her deemed request. See id.; Tex. R. Civ. P. 306c; Cobb v. Cobb, No. 03-14-00325-CV, 2016 Tex. App. LEXIS 5936, 2016 WL 3136886, at *3 (Tex. App.—Austin June 3, 2016, pet. denied) (mem. op.). However, Mother did not file her notice of past due findings and conclusions until November 29, 2018, which was untimely. See Tex. R. Civ. P. 297. Mother has therefore waived error as to the absence of findings of fact and conclusions of law under Rule 296.” S.L. v. S.L., No. 02-19-00017-CV, 2020 Tex. App. LEXIS 6002, at *14 (Tex. App.—Fort Worth July 30, 2020)

We then had a slew of cases in which parties failed to preserve their complaints because they did not raise those complaints in the trial court, but I won’t set those out here.

Y’all stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, July 25, 2020

July 25, 2020

Dear All:

Well, I guess we’ve returned to what more or less passes for normal these days.  I hope everyone remains safe and well.

Table of Contents

An objection that a discovery request is overbroad is sufficiently specific to preserve that complaint

Discovery

The complaint you make on appeal must be the complaint you made at trial

Evidence

You have to comply with other pertinent rules

Evidence

Your objection must be timely–but a post verdict jnov motion is timely for a legal sufficiency complaint

Legal Sufficiency

The Blurbs

An objection that a discovery request is overbroad is sufficiently specific to preserve that complaint:

Discovery: “In response to relators’ petition, FNB claims that relators waived all of their objections to the complained-of requests because (a) they did not assert sufficiently specific objections in their discovery responses and . . . . this court did not hold in Collins that an objection that a particular discovery request is overbroad is not specific enough to preserve that objection; instead, we held that the party resisting discovery in that case had not produced supporting evidence for its dual overbreadth and relevance objections, as well as its [*12] newly-asserted claim of privilege. 2017 Tex. App. LEXIS 474, [WL] at *20. The Texas Supreme Court has held that a timely asserted and continued objection that a discovery request is overbroad is sufficient to preserve error. See Nat’l Lloyds, 507 S.W.3d at 223; In re Allstate Cty. Mut. Ins., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). . . . Here, relators objected to each alter-ego-related request as overbroad. Although FNB complained to the trial court about what it called the “boilerplate” nature of these objections, it did not argue that relators’ objections were untimely or that they were “obscured by numerous unfounded objections.” See Tex. R. Civ. P. 193.2(e). And even though relators did not specifically argue their overbreadth objections to each request in the motion-to-compel hearing, nothing in the hearing evidenced an intent by counsel or relators to abandon those objections altogether. . . . When the trial court in this case ruled on the requests one-by-one on the record, she asked only whether the parties had come [*14] to an agreement on whether relators would answer these thirty-eight requests as she ruled on each one. Here, relators timely objected to the requests as to overbreadth and relevance and obtained rulings overruling their objections; they did not represent to the trial court that they intended to waive the overbreadth objections or that they had agreed to otherwise respond to the objected-to requests. . . . .Thus, we conclude that relators preserved their overbreadth objections. See Allstate, 227 S.W.3d at 670.” In re CAR Fin. Servs., No. 02-20-00157-CV, 2020 Tex. App. LEXIS 5735, at *11-14 (Tex. App.—Fort Worth July 23, 2020)

The complaint you make on appeal must be the complaint you made at trial:

Evidence: “Appellant contends that the admission of appellee’s exhibit twelve, a letter from the court clerk in New Mexico regarding appellant’s child support payment history to that county, was erroneous because it had no “probative value.” When appellee offered exhibit twelve at trial, appellant objected on the basis of hearsay and “to renew our judicial estoppel claim.” To preserve error, a complaint must be made to the trial court by timely objection that states the grounds for the ruling sought with sufficient specificity to make the trial [*11] court aware of the complaint, comply with the applicable rules, and be ruled on by the trial court. Tex. R. App. P. 33.1. Appellant failed to object to the document’s relevance or “probative value” which is the ground on which he bases his appellate complaint. Any error on this point has not been preserved.” In the Interest of B.E.W, No. 14-18-00733-CV, 2020 Tex. App. LEXIS 5728, at *10-11 (Tex. App.—Houston [14th Dist.] July 23, 2020)

You have to comply with other pertinent rules:

Evidence: “Appellant failed to preserve error because he did not make an offer of proof of the excluded testimony [pursuant to TRE 103(a)(2)]. Even if error were preserved, appellant has failed to show how the exclusion probably caused the rendition of an improper judgment.” In the Interest of B.E.W, No. 14-18-00733-CV, 2020 Tex. App. LEXIS 5728, at *15 (Tex. App.—Houston [14th Dist.] July 23, 2020).

Your objection must be timely–but a post verdict jnov motion is timely for a legal sufficiency complaint:

Legal Sufficiency: “ On appeal, Source 4 Value challenges the legal sufficiency of the evidence to support the jury’s finding that it had prior knowledge of the fraud.   Hoelzer and Lowery posit that Source 4 Value failed to preserve its complaint because the word “prior” was not a part of Question 1 and no objection on that basis was made during the charge conference. They also assert that “prior” knowledge is not required to hold a party vicariously liable as beneficiary of the fraud and neither is active participation in the fraud.

By its reply brief, Source 4 Value disagrees that it failed to preserve its error because it was not objecting to the omission of a definition of “knowledge.” It also argues that knowledge of fraud must necessarily be “gained either prior to or at least during the commission of the fraud” and not after the fraud. We conclude that Source 4 Value preserved its legal sufficiency complaint via its Motion for Judgment Non Obstante Veredicto in which it argued that it had no knowledge of the fraud.” Source 4 Value v. Hoelzer, No. 07-18-00338-CV, 2020 Tex. App. LEXIS 5621, at *6 (Tex. App.—Amarillo July 21, 2020)

I won’t bother you with cases which held that a party does not preserve a complaint which it does not raise in the trial court.

Y’all stay safe and healthy.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, July 18, 2020

Dear Friends:

First, Great News! According to recent Tweets by Black Hawthorne, the websites of almost all Texas courts of appeals have started replicating, meaning that those websites now reflect all documents filed in the various cases. Various items still need updating by hand, but the various courts have started working on those, as well.

Now, on to error preservation decisions.

Table of Contents

A party did not waive its objection that a temporary injunction order was not agreed

You must object in the trial court to a defect in the jurat on an unsworn declaration–but to avoid problems in this area, you might consider placing the jurat as the final paragraph in the unsworn statement

Affidavit

You must make your complaint in a timely fashion, which sometimes involves complying with other pertinent rules and statutes

Affirmative Defenses

You have to get a ruling on your complaint–an instruction to “move on” is not a ruling. Furthermore, make sure that the ruling granting your opponent’s motion for summary judgment is on the same issue for which you moved for summary judgment, or else get an express ruling on your motion

Evidence
Discovery
Notice
Summary Judgment

The Blurbs

Here is an interesting situation, in which a court held that a party did not waive its objection that a temporary injunction order was not agreed:

Temporary Injunction: “Next, Hartman argues that SISU and Grundy waived their challenges to the Injunction when they remained silent and did not object to the proposed order after it was sent to Judge Ray or after Judge Ray signed it. But Hartman forwarded to Judge Ray an agreed order. Judge Ray had previously ordered the parties and their attorneys to sign the order “if” it was agreed to. Neither SISU and Grundy nor their counsel had signed the Injunction. When emailing Judge Ray the Injunction, Hartman’s attorney informed the trial court that the parties still disputed the geographical limitations of the order. And although Hartman’s counsel stated in his October 25 email that the parties had “agreed to a form of Second Temporary Injunction,” even if we assume that was true, an agreement as [*33] to form only does not constitute an agreed order. See Morrison, 2015 Tex. App. LEXIS 6862, 2015 WL 4043260, at *6. Moreover, Hartman’s counsel requested Judge Ray to sign the order on only Hartman’s behalf.

While it may have been preferable for SISU and Grundy’s counsel to have expressly objected to the order after Hartman’s counsel requested Judge Ray to sign the order, their lack of objection on this record did not manifest an intentional waiver of their right to later challenge the fact that they never agreed to the Injunction. See Tenneco, 925 S.W.2d at 643. On this record, their lack of agreement to the order was evident and their remaining silent was consistent with their lack of agreement; their silence did not suddenly transform their lack of agreement into an agreement.” SISU Energy, LLC v. Hartman, No. 02-19-00436-CV, 2020 Tex. App. LEXIS 5430, at *32-33 (Tex. App.—Fort Worth July 16, 2020)

You must object in the trial court to a defect in the jurat on an unsworn declaration–but to avoid problems in this area, you might consider placing the jurat as the final paragraph in the unsworn statement:

Affidavit: “In its first issue, ACI asserts that Loadholt’s unsworn [*4] declaration is incompetent summary judgment evidence because it lacks the statutorily required jurat. See Hays St. BridgeRestoration Grp. v. City of San Antonio, 570 S.W.3d 697, 702 & n.15 (Tex. 2019) (stating that an unsworn declaration “provides no support for the motion” because the declaration, while made under the penalty of perjury, was unverified and lacked the statutorily required jurat). Loadholt’s declaration contains a jurat, but rather than placing it at the end of the document, it is at the beginning. Loadholt’s declaration states his name and address, then says “I declare under penalty of perjury that the foregoing is true and correct” (emphasis added), after which he states facts relating to his motion, followed by his signature. ACI maintains that the jurat’s placement indicates that the only information subject to penalty of perjury is Loadholt’s personal information and therefore no jurat applies to the remainder of the information in the declaration.

ACI did not raise this objection in the district court but urges that we may nonetheless consider this issue on appeal because the absence of the statutorily required jurat is a substantive defect. See Tex. Civ. Prac. & Rem. Code § 132.001(c)(1), (2) (requiring an unsworn declaration to “be in writing and subscribed by the person making the declaration as [*5] true under penalty of perjury”); Tex. R. App. P. 33.1(a) (stating that generally, to preserve a complaint for appellate review, a party must complain to the trial court by a timely request, objection, or motion, and the trial court must rule or refuse to rule on the request, objection, or motion); see also Fernandez v. Peters, No. 03-09-00687-CV, 2010 Tex. App. LEXIS 8473, at *11 (Tex. App.-Austin Oct. 19, 2010, no pet.) (mem. op.) (stating that “[u]nlike objections to defects in form, objections to defects of substance may be raised for the first time on appeal” and holding that lack of personal knowledge constituted a substantive defect in affidavit). We disagree. We consider this issue with the jurat to be a defect in form. The Texas Supreme Court has addressed the distinction between substantive defects and defects in form in Mansions in the Forest, L.P. v.Montgomery County when considering the competence of an affidavit in support of a motion for summary judgment. 365 S.W.3d 314, 317 (Tex. 2012). Like ACI, the nonmovant in Mansions in the Forest did not complain that the purported affidavit was unsworn until its responsive brief in the court of appeals. See id. The court held that the nonmovant had therefore waived the issue and it could not be considered on appeal. Id. The court explained, “When a purported affidavit lacks a jurat and a litigant [*6] fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the opposing party must object to this error, thereby giving the litigant a chance to correct the error.” Id.; see id. at 318 (acknowledging and disapproving of court of appeals opinions holding that the absence of a jurat is a substantive defect). The court continued:

There are “important prudential considerations” behind our rules on preserving error. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). First, requiring that parties initially raise complaints in the trial court conserves judicial resources by providing trial courts the opportunity to correct errors before appeal. Id. Second, judicial decision-making is more accurate when trial courts have the first opportunity to consider and rule on error. Id. (“Not only do the parties have the opportunity to develop and refine their arguments, but we have the benefit of other judicial review to focus and further analyze the questions at issue.”). Third, a party “should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time.” Id. (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam)).

Id. at 317. Although the court considered [*7] the distinction between form and substance in the context of an affidavit rather than an unsworn declaration, its prudential considerations for requiring error preservation apply equally to unsworn declarations. See Tex. Civ. Prac. & Rem. Code § 132.001(a) (stating that generally “an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit”). Accordingly, we conclude that ACI has likewise waived its complaint that Loadholt’s declaration lacked a jurat.“ Aci Design Build Contractors v. Loadholt, No. 03-19-00442-CV, 2020 Tex. App. LEXIS 5507, at *3-7 (Tex. App.—Austin July 17, 2020)

You must make your complaint in a timely fashion, which sometimes involves complying with other pertinent rules and statutes:

Affirmative Defenses: “Ali argues that the trial court erred by not allowing him to present evidence of the affirmative defenses of payment and voluntary relinquishment. Shahla argues that Ali waived his right to assert these defenses because he failed to timely file a motion to stay. We agree.

The trial court found that Ali did not [*13] file his motion to stay issuance of the judicial writ of withholding until November 15, 2017, more than ten days after he received notice. In her response, Shahla objected to Ali’s motion to stay, contending that it was filed too late. See Tex. Fam. Code § 158.307(a). On appeal, Shahla contends that because Ali failed to properly file a motion to stay, he cannot complain on appeal about the amount of arrearages determined by the trial court. We agree.

The trial court did not abuse its discretion in deciding the child support arrearage amount as a matter of law after Ali failed to file a timely motion to stay. . . .  Ali argues that Cobb is distinguishable because in that case the appellate court did not have a reporter’s record and the trial court did not make findings of fact and conclusions of law, but this court’s analysis of the law in Cobb, regarding the obligor’s untimely motion to stay, did not depend on findings of fact and conclusions of law or a reporter’s record. . . . We overrule Ali’s issue related to his ability to present affirmative defenses.” Khaligh v. Khaligh, No. 01-18-01119-CV, 2020 Tex. App. LEXIS 5420, at *12-14 (Tex. App.—Houston [1st Dist.] July 16, 2020)

You have to get a ruling on your complaint–an instruction to “move on” is not a ruling. Furthermore, make sure that the ruling granting your opponent’s motion for summary judgment is on the same issue for which you moved for summary judgment, or else get an express ruling on your motion:

Evidence: “In the remaining portion of her first issue, S.C. contends that the trial court’s “failing to cure a misstatement of law” by the Department’s counsel in the presence of the jury resulted in an improper judgment. S.C. argues that the Department’s counsel left the jury with the mistaken impression “that if parental rights were not terminated the children would have to be returned to the parents immediately (or some other hearing would have to be held).”

During S.C.’s counsel’s cross-examination of the guardian ad litem, the Department’s counsel objected to a line of questioning about whether the children would be returned to S.C. or L.C. if their parental rights were not terminated. In the presence of the jury, the Department’s counsel said, “Objection. Relevance. If the jury doesn’t terminate, the Department can no longer be a custodian. That’s a legal fact.” In response, also in the presence of the jury, S.C.’s counsel asked for a curative [*39] instruction: “I just want to make sure that the jury understands that that’s not accurate, that’s not legally accurate. So however—if you’d like to instruct them, I really think that that’s an important point that they need to hear.” The trial court responded, “Let’s move on,” and S.C.’s counsel resumed cross-examining the guardian ad litem. The trial court’s statement to move on was not a ruling on the Department’s counsel’s statement, and there was no objection to the trial court’s refusal to rule. Therefore, the complaint about this alleged misstatement of law is not preserved for our review. See Tex. R. App. P. 33.1(a)(2).” S.C. v. Tex. Dep’t of Family & Protective Servs., No. 03-20-00039-CV, 2020 Tex. App. LEXIS 5115, at *38-39 (Tex. App.—Austin July 10, 2020)

Discovery: “Judge Stith provided Rodriguez an opportunity to present evidence and even indicated that Rodriguez would be allowed to question David, if desired. Rodriguez did not follow up on the invitation to question David or call additional witnesses. Rodriguez did not bring the earlier request for additional time to conduct discovery to Judge Stith’s attention or file any additional motions for continuance or discovery. Judge Stith’s order simply denied Rodriguez’s motion to recuse and/or disqualify. Because Rodriguez failed to secure a ruling on the request for discovery, this objection has not been preserved for our review. See Tex. R. App. P. 33.1;” Rodriguez v. Newton, No. 13-19-00309-CV, 2020 Tex. App. LEXIS 5393, at *5 (Tex. App.—Corpus Christi July 16, 2020)

Notice: “The Onwuteaka Parties also contend that they did not receive proper notice of their right to request a de novo hearing as required by section 54A.112 and that this failure to notify deprived them of their constitutional rights to due process. The [*18] only point in the trial court proceeding in which the Onwuteaka Parties complained of the associate judge’s alleged failure to give notice of their right to request a de novo hearing was in their motion for reconsideration of the denial of their request for de novo hearing. The Onwuteaka Parties attached no evidence to this motion showing that they did not receive the notice required by section 54A.112, and they did not obtain an adverse ruling on this motion. Thus, the Onwuteaka Parties failed to preserve error on this point in the trial court.” Law Office of Joseph Onwute, P.C. v. Serna, No. 14-18-01063-CV, 2020 Tex. App. LEXIS 5411, at *17-18 (Tex. App.—Houston [14th Dist.] July 16, 2020)

Summary Judgment: “Generally, if a trial court’s ruling granting one summary judgment motion necessarily denies another pending motion for summary judgment on the same issue, we will imply the ruling of denial, even if the trial court does not expressly rule on the latter motion. [cases omitted] With respect to Star’s fraudulent transfer claim against NLW, appellees moved for summary judgment on their affirmative defense. The issue appellees presented, and upon which the trial court ruled, was whether Star’s claim was extinguished by the statute of repose. Star seeks summary [*71] judgment on the merits of its fraudulent transfer claims. The trial court did not reach the merits of this issue. Further, the trial court, at the summary-judgment hearing, expressly did not reach Star’s claim regarding the Fuqua Tract.

To preserve error for appeal, a party must obtain a ruling from the trial court. See Tex. R. App. P. 33.1(a); Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (“Preservation of error generally depends on whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”) (internal quotations omitted). Because Star did not obtain a ruling from the trial court on its motion for summary judgment, this issue is waived.” Star Elec., Inc. v. Northpark Office Tower, LP, No. 01-17-00364-CV, 2020 Tex. App. LEXIS 5216, at *70-71 (Tex. App.—Houston [1st Dist.] July 14, 2020)

The only other error preservation decision I ran across involved parties failing to raise their complaints in the trial court.

I hope this helps.  Y’all stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, July 11, 2020

July 11, 2020

Dear Folks:

I didn’t bother you with an update last week because the only error preservation cases I ran across involved parties failing to raise complaints in the trial court. This week provided a couple of more meaty morsels for your stew.

Table of Contents

We have an extensive discussion of the law governing incurable jury argument, and application of that law to two different arguments

Jury Argument

The overruling of a motion to modify a judgment by operation of law, when no new evidence is required to support the motion (as in questions of law, which can first be asserted in the post-trial time frame) preserves a complaint even in the absence of an express ruling on the motion

Attorney’s Fees

The Blurbs

From time to time, a case will arise in which a court addresses whether an arguably improper jury argument rose to the level of being an incurably improper jury argument, and hence subject to complaint for the first time in a post-trial motion for new trial or mistrial. I’ll encourage you to read the following case, because I cannot do justice here to this court’s extensive discussion of the law governing incurable jury argument, and its application of that law to two different arguments (before it held that the arguments were not incurable):

Jury Argument: “It is undisputed that no objection was made during trial to the jury argument the Givens/Brown families complain about on appeal. “Error as to improper jury argument must ordinarily be preserved by a timely objection which is overruled.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). “In rare cases, an improper argument is considered incurable, and a contemporaneous objection is not required.” Hopkins v. Phillips, No. 05-18-01143-CV, 2019 Tex. App. LEXIS 9449, 2019 WL 5558585, at *2 (Tex. App.—Dallas Oct. 29, 2019, pet. denied) (mem. op.). Instead, “[a] complaint of incurable jury argument may be asserted and preserved in a motion for new trial [or post-judgment motion for mistrial], even without a complaint and ruling during the trial.” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). As previously noted, however, incurable argument is rare. Living Ctrs. of Tex., Inc., 256 S.W.3d at 681. The seminal case setting forth the test for determining whether jury argument is incurable is Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex. 1979). . . . Therefore, considering the argument in its proper context, we hold the trial court did not abuse its discretion in concluding the argument by Anderson’s counsel was not an appeal to ethnic prejudice. Even if, however, it could be construed as such, we hold the argument was not so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” See Phillips, 288 S.W.3d at 883. . . . Therefore, having reviewed the record as a whole, even if we assume the comments were improper, we hold the references to greed and money and the comments made distinguishing between Trevino’s case and the Givens/Brown case were not so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” See Phillips, 288 S.W.3d at 883; see also Queen City Land Co. v. State, 601 S.W.2d 527, 530 (Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.) (holding counsel’s use of the term “greed,” while improper, “was curable by instruction”).” Givens v. Anderson Columbia Co., No. 04-19-00435-CV, 2020 Tex. App. LEXIS 4984, at *12-13 (Tex. App.—San Antonio July 8, 2020)

The overruling of a motion to modify a judgment by operation of law, when no new evidence is required to support the motion (as in questions of law, which can first be asserted in the post-trial time frame) preserves a complaint even in the absence of an express ruling on the motion:

Attorney’s Fees: “In the trial court, T&C timely filed a motion to reform the judgment on December 10, 2018 and a supplement to the motion to reform the judgment on January 11, 2019. In the supplement to the motion to reform the judgment, T&C argued that section 38.001 of the Civil Practice and Remedies Code “does not apply to limited partnerships like T&C Construction, Ltd.” and that section 28.005 of the Property Code does not apply to the contract for Project 2 because the San Jacinto River Authority is a governmental entity. The trial court did not rule on the motion to reform the judgment, and it was denied by operation of law on February 21, 2019. See Tex. R. Civ. P. 329b(c).

First, T&C’s argument for denying Brown Mechanical’s attorney’s fees under section 38.001 presents only a question of law because the parties do not dispute that T&C is a limited partnership. See Tex. Bus. Orgs. Code § 5.055(a) (establishing that name of limited partnership “must contain: (1) the word ‘limited’; (2) the phrase ‘limited partnership’; [*19] or (3) an abbreviation of that word or phrase”).

Second, T&C’s argument for denying Brown Mechanical’s attorney’s fees under section 28.005 of the Property Code presents only a question of law because the evidence at trial established that the San Jacinto River Authority was a governmental entity. . . . Because T&C’s motion to reform the judgment did not require the taking of evidence, its overruling by operation of law preserved error for appeal. See Tex. R. App. P. 33.1(b).”  T&C Constr., Ltd. v. Brown Mech. Servs., No. 01-19-00041-CV, 2020 Tex. App. LEXIS 5067, at *18-19 (Tex. App.—Houston [1st Dist.] July 9, 2020)

I did not see any other cases, other than those which involved parties failing to raise their complaints in the trial court.

I hope this helps.  Y’all have a great weekend.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, June 29, 2020

June 29, 2020

Dear All:

There is some indication that most courts of appeals seem to have figured out a way to get their opinions picked up by the various online reporters, so we have some error preservation decisions to examine this week–including one or two from the Texas Supreme Court.

Table of Contents

  • Very seldom does the Supreme Court address error preservation, and even more seldom than that does it explicitly address the “sufficient specificity” requirement of TRAP 33.1. But it did so this week in Bonsmara v. Hart, and the Houston First Court also decided an error preservation fight based on specificity (at least, impliedly)

Arbitration
Personal Jurisdiction

  • Bonsmara also held that a party preserves its complaint that a trial court should have ordered arbitration by getting a ruling on a motion to compel arbitration–and that failing to take an interlocutory appeal from that order does not waive its demand for arbitration–a position as to which Justice Green dissented
  • The Supreme Court also held that a Father did no waive the presumption that a parent will act in the best interest of the child
  • Mootness is a complaint which can first be raised on appeal–and in fact a court of appeals can raise it sua sponte
  • Remember, you have to comply with the pertinent rules to preserve your complaint–for example, the failure to file a verified denial fails to preserve a complaint that a party lacks capacity (and filing a denial verified “to the best of my knowledge” does not qualify as a verified denial)
  • The Dallas Court held that the statutory mandate of a court reporter in a contested probate proceeding means a party can first complain on appeal as to the lack of a court reporter in that situation
  • Remember–the “newly discovered evidence” complaint that you have to raise in a Rule 324 motion for new trial does not allow you to complain about evidence you knew about during trial
  • You have to get a ruling on your complaint

Summary Judgment (Amended Pleading)

The Blurbs

Very seldom does the Supreme Court address error preservation, and even more seldom than that does it explicitly address the “sufficient specificity” requirement of TRAP 33.1. But it did so this week in Bonsmara v. Hart, and the Houston First Court also decided an error preservation fight based on specificity (at least, impliedly):

Arbitration: “Bonsmara also argues Hayes, Landrum, and Pickett waived direct-benefits estoppel by failing to raise the doctrine below. We disagree. Before the trial court and court of appeals, the Hart defendants argued arbitration was appropriate because the claims asserted by Bonsmara arose out of the agreement and Bonsmara should not avoid arbitration after receiving the agreement’s economic benefits. This statement was “sufficiently specific[] to make the trial court aware of the complaint.” Tex. R. App. P. 33.1(a)(1)(A).” Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, No. 19-0263, 2020 Tex. LEXIS 617, at *31 n.26 (June 26, 2020)

Personal Jurisdiction: “Ratliff asserts that Baywater waived its jurisdictional challenge to his unseaworthiness claim because Baywater did not specifically mention that claim in its special-appearance filings. We disagree. In its special appearance, Baywater asserted that it is not subject to specific jurisdiction for Ratliff’s “claims.” Baywater indicated that Ratliff asserted claims under general maritime law, which, here, include an unseaworthiness claim. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018) (recognizing that “[r]ules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case”).” Baywater Drilling, LLC v. Ratliff, No. 01-19-00706-CV, 2020 Tex. App. LEXIS 4624, at *13 n.5 (Tex. App.—Houston [1st Dist.] June 23, 2020)

Bonsmara also held that a party preserves its complaint that a trial court should have ordered arbitration by getting a ruling on a motion to compel arbitration–and that failing to take an interlocutory appeal from that order does not waive its demand for arbitration–a position as to which Justice Green dissented:

Arbitration: “From that point forward, the party must adhere to the trial court’s order—as it must all interlocutory orders—whether it agrees with the order or not. Having obtained an adverse ruling, the party’s complaint is preserved for appellate review. Tex. R. App. P. 33.1; see also, e.g., Lucas, 2019 WL 2635561, at *2-10 (holding personal-jurisdiction challenge could be raised after final judgment where party obtained adverse ruling on special-appearance motion); GJP, Inc., 251 S.W.3d at 865-83 (same). It is surely not the case that measures such as disobedience to the order, repetitious motions to reconsider, or abstention from putting on a case are necessary to avoid waiver. If simply adhering to an adverse order while continuing to litigate waived review of that order on appeal from a final judgment, there would be few orders left to review.” Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, No. 19-0263, 2020 Tex. LEXIS 617, at *21 n.22 (June 26, 2020)

The Supreme Court also held that a Father did no waive the presumption that a parent will act in the best interest of the child:

Best interest presumption: “Finally, we reject Jason’s argument that Abigail’s father “affirmatively sought the court’s intervention” and thus “waived the parental presumption in any later modification suit.” n. 80 Abigail’s father filed the original suit affecting the parent-child relationship in this case that resulted in the order naming him a joint managing conservator, and he also sought temporary orders in this modification proceeding. [footnote with authorities omitted].

n. 80-Jason further contends that Abigail’s father waived his complaint under the invited-error doctrine because Abigail’s father filed a proposed judgment. See Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.—Houston [1st Dist.] 1995, writ denied). “When a party specifically seeks entry of an order in a particular form,” Jason contends, “the party cannot then complain about the entry of the order in the form requested.” Abigail’s father, however, objects to the substance of the order, not merely its form; thus, this complaint is without merit.

A fit parent does not forgo the right to parent a child by seeking to exercise that right. A child does not become a “creature of the State,” subject to the court’s unfettered determination of the child’s best interest, because a presumably fit parent invoked the judicial process to establish his or her conservatorship of the child.” In re C.J.C., No. 19-0694, 2020 Tex. LEXIS 610, at *26 (June 26, 2020)

Mootness is a complaint which can first be raised on appeal–and in fact a court of appeals can raise it sua sponte:

Mootness: “Kitchen first argues that his arguments were not mooted by the expiration of the protective order, apparently anticipating that Lutcavage might raise a mootness challenge to this appeal. Lutcavage has not done so, but because mootness implicates jurisdiction, the question “cannot be waived.” Spears v. Falcon Pointe Cmty. Homeowners’ Ass’n, No. 03-16-00825-CV, 2017 Tex. App. LEXIS 9663, 2017 WL 4766652, at *3 (Tex. App.—Austin Oct. 17, 2017, no pet.) (mem. op.) . . . . We will therefore address [*3] the issue.” Kitchen v. Lutcavage, No. 03-19-00421-CV, 2020 Tex. App. LEXIS 4654, at *2-3 (Tex. App.—Austin June 24, 2020)

Remember, you have to comply with the pertinent rules to preserve your complaint–for example, the failure to file a verified denial fails to preserve a complaint that a party lacks capacity (and filing a denial verified “to the best of my knowledge” does not qualify as a verified denial):

Capacity: “In his first and third issues, Miller argues that Maplewood does not have standing to enforce the Declaration’s restrictions because the Subdivision’s [*4] corporate charter has been forfeited and Maplewood is in violation of the Declaration. A challenge to a party’s legal authority to sue presents a challenge to capacity, not standing. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005) (stating capacity is procedural issue dealing with personal qualifications of party to litigate); see generally Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370, 376 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“A forfeiture of corporate privileges deprives a corporation of the capacity to sue, but incapacity does not make a suit void.”). Unlike standing, “[i]ncapacity must be challenged with a verified plea or else it is waived.” Cognata, 375 S.W.3d at 376; see also Tex. R. Civ. P. 93(1); Lovato, 171 S.W.3d at 849.

Rule 93 provides that a pleading must be verified by affidavit if it alleges the plaintiff does not have the legal capacity to sue. Tex. R. Civ. P. 93(1); John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 653 (Tex. App.—Dallas 2013, pet. denied). A valid verification must be based on personal knowledge. Mekeel v. U.S. Bank Nat’l Ass’n, 355 S.W.3d 349, 355 (Tex. App.—El Paso 2011, pet. dism’d) (citing Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008)). Any qualifying verbiage, such as a statement that the affidavit is “based on the best of one’s personal knowledge,” renders the affidavit legally invalid. See Mekeel, 355 S.W.3d at 355 (citation omitted); cf. Wimmer v. Hanna Prime, Inc., No. 05-08-01323-CV, 2009 Tex. App. LEXIS 8866, 2009 WL 3838867, at *2 (Tex. App.—Dallas Nov. 18, 2009, no pet.) (mem. op.) (holding affidavit containing qualifying language, i.e., “to the best of my knowledge,” did not satisfy Rule 93). In the affidavit attached to his amended answer, Miller swore that the alleged facts were “true and correct to the best [*5] of his knowledge.” The qualifying language, however, renders Miller’s verification legally invalid and insufficient to satisfy the requirements of Rule 93. See Mekeel, 355 S.W.3d at 355. Because Miller failed to verify his plea in accordance with Rule 93, he has waived his challenge to Maplewood’s capacity. See Lovato, 171 S.W.3d at 849.” Miller v. Maplewood Square Council of Co-Owners, No. 01-18-00914-CV, 2020 Tex. App. LEXIS 4623, at *3-5 (Tex. App.—Houston [1st Dist.] June 23, 2020)

Here is one in which the Dallas Court holds that the statutory mandate of a court reporter in a contested probate proceeding means a party can first complain on appeal as to the lack of a court reporter in that situation:

Record: “The requirement of a court reporter was mandatory on the statutory probate court under Section 52.046(d) (which “mandates that a ‘judge of a county court or county court at law shall appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge’s court.’”) The court did not have a court reporter to record the testimony. This was error. Further, because the obligation was on the court to supply [*15] the court reporter, and not on Scott to request a court reporter, we reject Family LLC’s argument that Scott waived error by either failing to object or failing to request a court reporter. See Herrera, 2014 Tex. App. LEXIS 4600, 2014 WL 1714011, at *2 (holding that party did not waive appointment of court reporter under Section 52.046(d), in part, because statutory obligation for court reporter was on court, not party).” Smith v. Malone (In re Estate of Poff), No. 01-19-00266-CV, 2020 Tex. App. LEXIS 4622, at *14-15 (Tex. App.—Houston [1st Dist.] June 23, 2020)

Remember–the “newly discovered evidence” complaint that you have to raise in a Rule 324 motion for new trial does not allow you to complain about evidence you knew about during trial:

Newly Discovered Evidence: “[I]t is undisputed that Cook received the transmittal email during trial, not after. Relying upon Rule of Civil Procedure 324(b)(1), Cook argues that it is immaterial whether he received the new document during or after trial because the rule does not draw a distinction between evidence discovered after trial began or after trial ended and the rule should not be interpreted so narrowly. See Tex. R. Civ. P. 324(b)(1). Cook’s reliance upon Rule 324(b)(1) is misplaced. . . .The criteria for acquiring a new trial based on newly discovered evidence, however, are set forth in case law that dictates that a party is not entitled to a new trial on this basis unless it establishes that “the evidence has come to its knowledge since the trial.” Waffle House, 313 S.W.3d at 813; see also Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex. 2003). Because it is undisputed that Cook received the transmittal email during trial, Cook has not established that he is entitled to a new trial based on newly discovered evidence.” Cook v. Monaghan Med. Corp., No. 01-19-00121-CV, 2020 Tex. App. LEXIS 4620, at *6-7 (Tex. App.—Houston [1st Dist.] June 23, 2020)

You have to get a ruling on your complaint:

Summary Judgment (Amended Pleading): “Landlord argues that rule 166a(c) required the trial court to decide its motion based on the pleadings on file on the date of the hearing; Tenant did not properly plead assignment until after the date of the hearing and did not seek leave of court before doing so; and Landlord’s answer had not been stricken at the time of the hearing. See Tex. R. Civ. P. 166a(c) (summary judgment is rendered on pleadings and other specified documents “on file at the time of the hearing, or filed thereafter and before judgment with permission of the court”). We reject these arguments for two reasons. First, although Landlord objected in writing to the filing of Tenant’s second amended petition after the hearing, Landlord did not obtain a ruling on its objection. See Tex. R. App. P. 33.1(a)(2) (as prerequisite to presenting complaint for appellate review, record must show that [*14] trial court ruled or refused to rule on objection).” Tunad Enters. v. Palma, No. 05-19-00497-CV, 2020 Tex. App. LEXIS 4607, at *13-14 (Tex. App.—Dallas June 22, 2020)

Of course, we have a collection of cases holding that a party fails to preserve a complaint which it does not raise in the trial court.

You folks stay safe and well.

Yours, Steve

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, June 24, 2020

June 24, 2020

Dear All:

The good news is that–per Blake Hawthorne–the Supreme Court’s case management system is reconnected to the efiling system; now SCOTX will have to procees about 2,000 post-May 6 filings into its case management system.  But at least it can start moving forward.

On to error preservation. This last week, I found error preservation opinions from (in numerical order) the Houston First, Dallas, Eastland, Tyler, Corpus Christi-Edinburg, and Houston Fourteenth hit Lexis this week. Last week, I only found error preservation decisions from the Dallas Court, but they all held that the pertinent complaint had not been raised in the trial court, as I recall.

Table of Contents

The Supreme Court held that a complaint to an expert’s methodology is waived if not raised by objecting to his testimony at trial–and pointed out that “a challenge to an expert’s underlying methodology necessarily requires a court to look beyond what the expert said to evaluate the reliability of his opinion,” such as a complaint about an expert’s “failure to deduct certain costs,” which is a “challenge to the formula he used”

The Supreme Court also pointed out that a complaint about an expert’s conclusory testimony did not have to be raised as an admissibility objection, but could be preserved through a legal sufficiency complaint

The Supreme Court also weighed in on whether “the authority of a partner to recover for an alleged injury to the value of its interest in the partnership” is “a matter of constitutional standing that implicates subject-matter jurisdiction” –and held that it was not. Therefore, this authority was a matter of capacity–and a challenge to that capacity was waived by the failure to file a verified plea challenging capacity–a holding with which Justice Bland disagreed

The Dallas Court held that the Supreme Court’s decision in Seim allows for the granting of a summary judgment motion to act as an implied ruling on objections to summary judgment evidence. Do not run this risk. Get an express ruling on your summary judgment evidentiary objections

Complaints about the sufficiency of the evidence–like an arithmetic miscalculation of the trial court–may first be raised on appeal in a bench trial

You have to make a record

Your complaint must be timely–but an amended answer may be timely enough to assert an affirmative defense

Affirmative Defenses (maritime law)

The Blurbs

The Supreme Court held that a complaint to an expert’s methodology is waived if not raised by objecting to his testimony at trial–and pointed out that “a challenge to an expert’s underlying methodology necessarily requires a court to look beyond what the expert said to evaluate the reliability of his opinion,” such as a complaint about an expert’s “failure to deduct certain costs,” which is a “challenge to the formula he used”:

Expert: “When a party wishes to complain that expert testimony is legally insufficient to support the judgment because the basis offered for it is unreliable, it should challenge the admission of the testimony before trial or object when it is offered. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816-17 (Tex. 2009). But a party need not object in order to challenge the expert testimony as conclusory or speculative on its face; it need only preserve a challenge to the legal sufficiency of the evidence, which it may do post-verdict. See id. As we have explained:

When the expert’s [*41] underlying methodology is challenged, the court “necessarily looks beyond what the expert said” to evaluate the reliability of the expert’s opinion. When the testimony is challenged as conclusory or speculative and therefore non-probative on its face, however, there is no need to go beyond the face of the record to test its reliability. We therefore conclude that when a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis. However, when the challenge is restricted to the face of the record—for example, when expert testimony is speculative or conclusory on its face—then a party may challenge the legal sufficiency of the evidence even in the absence of any objection to its admissibility.

Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (citations omitted).

Requiring an admissibility objection to the reliability of expert testimony gives the proponent a fair opportunity to cure any deficiencies and prevents trial and appeal by ambush. Pollock, 284 S.W.3d at 817. Thus, when an expert opinion “is admitted in evidence without objection, it may be considered probative evidence even if [*42] the basis of the opinion is unreliable.” Id. at 818. But conclusory or speculative opinion testimony is not relevant evidence because it does not make the existence of a material fact more or less probable. Coastal Transp. Co., 136 S.W.3d at 232 (citing Tex. R. Evid. 401). Evidence that lacks probative value will not support a jury finding even if admitted without objection. Id.; see Pollock, 284 S.W.3d at 816 (“Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.”).

The EMC plaintiffs contend that a party may challenge the legal sufficiency of expert testimony without objecting to its admission only if the challenge is based on a complete lack of supporting evidence. We disagree. Although expert testimony is conclusory (and an objection unnecessary) “if no basis for the opinion is offered,” it is likewise conclusory if “the basis offered provides no support” for the opinion. Pollock, 284 S.W.3d at 818; accord Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999) (holding affidavit conclusory and explaining that qualified expert “cannot simply say, ‘Take my word for it, I know'” because credentials do not supply a basis for opinion). We address below whether defendants needed to make an admissibility objection to preserve each of their challenges to the experts’ testimony.
. . . .

Defendants’ first challenge to Lygren’s 2011 base projection concerns his failure to deduct certain operational costs when calculating EBITDA. The EMC plaintiffs respond that this complaint is [*44] waived because it concerns Lygren’s underlying methodology and technique, and therefore it is a reliability challenge that had to be raised by objecting to his testimony at trial. We agree with the EMC plaintiffs.

As noted above, a challenge to an expert’s underlying methodology necessarily requires a court to look beyond what the expert said to evaluate the reliability of his opinion. Coastal Transp. Co., 136 S.W.3d at 233. A methodology challenge must be timely so there is an opportunity for the parties to develop the record and the trial court to conduct a reliability evaluation in its role as gatekeeper; it is not an analysis to be undertaken for the first time on appeal. See id.

Defendants’ challenge to Lygren’s failure to deduct certain costs is a challenge to the formula he used to determine EBITDA. Indeed, VHSC and Pike expressly assert that Lygren failed to follow “[t]he proper method for calculating EBITDA.” This challenge would require us to look beyond Lygren’s testimony and evaluate his underlying methodology and technique. Because defendants neither objected at trial nor developed the record regarding the proper method for calculating EBITDA, we do not address that question. See id.Pike v. Texas EMC, No. 17-0557, 2020 Tex. LEXIS 568, at *41, 43-44 (June 19, 2020)

The Supreme Court also pointed out that a complaint about an expert’s conclusory testimony did not have to be raised as an admissibility objection, but could be preserved through a legal sufficiency complaint:

Expert: “Defendants next complain that Lygren’s 2011 EBITDA base calculation is conclusory because his assumed sales price per ton has no basis in fact and was not validated through any market analysis or study. This argument challenges whether the factual basis Lygren offered supports his sales price assumption, so defendants were not required to raise it in an admissibility objection. See Pollock, 284 S.W.3d at 818.
. . . .
Defendants also complain that all of Lygren’s EBITDA testimony was conclusory because his projections for years after 2011 were based on unfounded assumptions about the Partnership’s sales increases. Defendants’ legal sufficiency challenge was likewise sufficient to preserve this complaint for appellate review. See id. at 818.” Pike v. Texas EMC, No. 17-0557, 2020 Tex. LEXIS 568, at *44 (June 19, 2020)

The Supreme Court also weighed in on whether “the authority of a partner to recover for an alleged injury to the value of its interest in the partnership” is “a matter of constitutional standing that implicates subject-matter jurisdiction” –and held that it was not. Therefore, this authority was a matter of capacity–and a challenge to that capacity was waived by the failure to file a verified plea challenging capacity–a holding with which Justice Bland disagreed:

Capacity: “In this Court, Walker argues the court of appeals erred in holding that a challenge to a partner’s ability to sue individually for injury to the partnership is an issue of capacity requiring special preservation, and he cites various cases referring to such a challenge as raising an issue of “standing.” We conclude, however, that the authority of a partner to recover for an alleged injury to the value of its interest in the partnership is not a matter of constitutional standing that implicates subject-matter jurisdiction. [*17]

Both capacity and standing are necessary to bring a lawsuit. See Coastal Liquids Transp., L.P. v. Harris Cty. Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001). “A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.” Id. (quoting Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996)). A plaintiff lacks capacity when, as pertinent here, he “is not entitled to recover in the capacity in which he sues.” Tex. R. Civ. P. 93(2).
. . . .
Having concluded that Walker’s challenge to EMC Cement BV’s “standing” does not concern subject-matter jurisdiction, we next consider whether it raises an issue of capacity requiring special preservation. In the court of appeals’ view, Walker is challenging EMC Cement BV’s authority to recover its loss in its capacity as a limited partner, [*23] and he waived this issue by failing to file a verified plea under Rule 93(2). We agree with the court of appeals that, by challenging EMC Cement BV’s ability to recover the lost value of its interest in the Partnership, Walker was challenging EMC Cement BV’s capacity. We need not decide whether EMC Cement BV lacked capacity to recover, however, because we conclude there is insufficient evidentiary support for EMC Cement BV’s damages even if it had capacity.” Pike v. Texas EMC, No. 17-0557, 2020 Tex. LEXIS 568, at *16-17 (June 19, 2020)

Dissent: “Because EMC Cement claimed an injury based on lost value of the partnership, we should dismiss its claim for lack of standing. As a limited partner, it lacked standing to recover the partnership’s lost profits. Because standing implicates subject-matter jurisdiction, the court of appeals erred in concluding that the defendant partners waived a challenge to this direct recovery. This Court compounds that error by disregarding a partnership’s status as an independent entity in concluding that derivative standing [*82] requirements may be waived—and a partnership’s recovery taken—in a limited partner’s enforceable judgment, in contravention of the limited partnership’s governing documents.

We instead should hold that EMC Cement, as a limited partner, has no legal standing to sue for an injury to EMC Production LP, the partnership, and dismiss EMC Cement’s recovery on that claim for lack of jurisdiction. Because we do not, I respectfully dissent to all but Part IV of the Court’s opinion and judgment.” Pike v. Texas EMC, No. 17-0557, 2020 Tex. LEXIS 568, at *81-82 (June 19, 2020) (Bland, J., dissenting)

Here is one in which the Dallas Court holds that the Supreme Court’s decision in Seim allows for the granting of a summary judgment motion to act as an implied ruling on objections to summary judgment evidence. Do not run this risk. Get an express ruling on your summary judgment evidentiary objections.

Summary Judgment Evidence: “MidFirst first contends appellants did not preserve error by obtaining an express ruling from the trial court on their objections. [*5] See Tex. R. App. P. 33.1(a).  In general, merely granting a motion for summary judgment does not indicate a ruling on objections to summary judgment evidence. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 165 (Tex. 2018) (per curiam); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.) (implicit ruling requires some indication in record that trial court ruled on objections “other than the mere granting of the summary judgment”). However, the summary judgment here was clearly based on the affidavits and the documents attached to them. Because the trial court could not have reached its rulings without considering the evidence in the affidavits and the documents, we will assume without deciding the record is sufficiently clear that the trial court implicitly ruled the affidavits were admissible. See Seim, 551 S.W.3d at 166 (noting implicit ruling may be sufficient to preserve error where implication is clear). Accordingly, we will evaluate the merits of the objections asserted.” Botello v. MidFirst Bank, No. 05-19-00461-CV, 2020 Tex. App. LEXIS 4515, at *4-5 (Tex. App.—Dallas June 17, 2020)

Complaints about the sufficiency of the evidence–like an arithmetic miscalculation of the trial court–may first be raised on appeal in a bench trial.

Legal Sufficiency: “In his sole issue, Father argues the trial court made a mathematical error in determining the amount of the arrearages. He argues that correct calculations show he actually overpaid the amounts due under the trial court’s original divorce decree. Mother argues that Father has waived his complaint by failing to raise the issue in a motion for new trial. But Father’s complaint is that the trial court abused its discretion because the evidence does not support the amount of the arrearages in the findings and judgment. Complaints about the sufficiency of the evidence may be made for the first time on appeal in a civil nonjury case. Tex. R. App. P. 33.1(d).” In re N.E.C., No. 05-18-01350-CV, 2020 Tex. App. LEXIS 4549, at *6 (Tex. App.—Dallas June 18, 2020)

You have to make a record:

Record: “In a fourth issue, he complains that a record of the December 17 hearing was not made and thus is “not available so that it can be tendered as evidence.” We address Opoku-Pong’s last issue first because it is dispositive of this appeal. Opoku-Pong has not provided a reporter’s record of the December 17 proceeding. He complains that a record was not made. However, a complaint such as his must be preserved in the trial court by request or objection before it may [*4] be raised on appeal. Tex. R. App. P. 33.1(a); . . . Nothing in our record indicates that Opoku-Pong either requested a record be made or objected to the reporter’s failure to make a record. Tex. R. App. P. 33.1(a); . . . . Thus, we conclude that Opoku-Pong failed to preserve his fourth issue, and we overrule it.” Opoku-Pong v. Boahemaa, No. 14-19-00070-CV, 2020 Tex. App. LEXIS 4471, at *3-4 (Tex. App.—Houston [14th Dist.] June 16, 2020)

Your complaint must be timely–but an amended answer may be timely enough to assert an affirmative defense:

Affirmative Defenses (maritime law): “Appellants argue in their first issue that JCI waived the application of federal maritime law in this case because JCI did not plead preemption in its original answer. Then, recognizing that JCI added preemption in an amended answer, appellants argue that the trial court abused its discretion when it allowed JCI to add the defense. JCI responds that it did not waive the application of maritime law because it timely filed its amended answer. It further responds that the trial court did not abuse its discretion because appellants cannot show they were prejudiced by the amended answer. We agree with JCI.

A party may waive the defense that a claim is preempted by federal law. See Hollis v. Acclaim Physician Grp., Inc., No. 02-19-00062-CV, 2019 Tex. App. LEXIS 6414, 2019 WL 3334617, at *4 (Tex. App.—Fort Worth July 25, 2019, no pet.) (mem. [*6] op.) (holding party waived choice-of-law preemption argument by failing to raise it in the trial court). Waiver is defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Sun Expl. & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). “There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right.” Id.

The general rule regarding pleading amendments is that the parties may freely amend if the amended pleading is filed at least seven days before trial. See Tex. R. Civ. P. 63; Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (per curiam). The amended pleading may not, however, act as a surprise to the other party. See Tex. R. Civ. P. 63. A trial court may strike an amended pleading if the opposite party objects and shows surprise. See Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (stating burden for showing surprise is on party opposing the amendment).

We turn first to appellants’ contention that JCI’s failure to include maritime law in its original answer waived the application of maritime law in this case. Appellants have cited no authority [*7] supporting their contention that preemption must be pleaded in a defendant’s original answer or it is waived. See PHI, Inc. v. LeBlanc, No. 13-14-00097-CV, 2016 Tex. App. LEXIS 1899, 2016 WL 747930, at *9 (Tex. App.—Corpus Christi Feb. 25, 2016, pet. denied) (mem. op.) (“Thus, in the absence of any authority supporting a conclusion that under these circumstances a party waives the application of maritime law, we cannot conclude that the trial court abused its discretion by determining that LeBlanc had not waived it.”). We therefore reject appellants’ contention that JCI’s failure to include maritime law as a defense in its original answer, standing alone, demonstrates JCI waived maritime law as a defense.

Appellants next argue that JCI’s delay in adding the preemption defense demonstrates waiver. In this situation appellants must show that this delay by JCI clearly demonstrates an intent to not rely upon maritime law. Jernigan, 111 S.W.3d at 156. In an effort to make this showing appellants point out that JCI (1) specifically mentioned Virginia and Alabama law, but not maritime law, in its original answer; (2) invoked Texas law in both its original and first amended answers; and (3) delayed until after it filed a motion for summary judgment and motion to exclude experts under Texas law to add maritime [*8] law as a defense in its second amended answer. We conclude that none of these actions clearly demonstrates JCI’s intent to not rely upon maritime law. See id. at 157-58 (stating that waiting more than 600 days after receiving medical expert report to file motion to dismiss was insufficient to establish waiver even though doctor engaged in discovery, filed a motion for summary judgment on other grounds, and filed an amended answer during that time period); Niche Oilfield Servs., LLC v. Carter, 331 S.W.3d 563, 577 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding plaintiff adequately raised application of maritime law in his first amended petition); cf. Hollis, 2019 Tex. App. LEXIS 6414, 2019 WL 3334617 at *4 (holding appellant waived preemption argument by failing to raise it in the trial court). Our conclusion is reinforced by the fact that JCI included maritime law arguments in its motion for summary judgment, which demonstrates JCI did not intend to waive reliance on maritime law as a defense.” Andrews v. John Crane, Inc., No. 14-18-00573-CV, 2020 Tex. App. LEXIS 4535, at *5-8 (Tex. App.—Houston [14th Dist.] June 18, 2020)

There were then several cases which held that complaints were not preserved because they were not raised in the trial court.

Y’all be safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, June 6, 2020

June 6, 2020

Dear All:

Gradually, the various courts’ electronic systems are coming back after the ransomware attack on the OCA system.  In the last couple weeks, only a few of the courts of appeals (San Antonio, Eastland, Corpus Christi-Edinburg), have had their opinions uploaded to the alternate OCA website (www.txcourts.net); however, the opinions of several courts (Austin, San Antonio, Amarillo, El Paso, Beaumont, Eastland, Tyler, and Corpus Christi) are apparently once again being uploaded to the txcourts.gov site for those courts, and the Dallas Court apparently still uploads its opinions to its proprietary (for lack of a better word) website. Since, so far as I know, Lexis and Westlaw scrape their content for the courts of appeals off those websites, what you see in this issue of the blog are limited to those cases. But we’re getting there.

Table of Contents

Here is one in which the Supreme Court held that, by not raising the complaint until the court of appeals had twice issued opinions, a party waived an argument that its untimely summary judgment response related back to an earlier, rejected electronic filing–but the Supreme Court then held that the order granting summary judgment contained an “affirmative indication” that it considered the evidence in the late filed response anyway, and that the summary judgment movant waived its objection to the late filing by failing to get the trial court to rule on its objection. Head not swimming yet? Read the blurb

Another Supreme Court decision talked about the necessity of raising complaints in administrative type proceedings (a school board decision on a contract)

Good Cause exception

This is a court of appeals decision worth noting: while you have to raise a complaint that attorney’s fees are not recoverable in the trial court, you can do so in a post-trial motion

Your complaint must be sufficiently specific

Jury Charge

Your complaint must be timely

Deemed Admissions

You must get a ruling on your complaint, and it is always at least best to get a written order

Continuance
Motion to Compel

The complaint you raise on appeal must comport with the complaint you raised in the trial court

Jury Charge

The Blurbs

Here is one in which the Supreme Court held that, by not raising it until the court of appeals had twice issued opinions, a party waived an argument that its untimely summary judgment response related back to an earlier, rejected electronic filing–but the Supreme Court then held that the order granting summary judgment contained an “affirmative indication” that it considered the evidence in the late filed response, and that the summary judgment movant waived its objection to the late filing by failing to get the trial court to rule on its objection. Head not swimming yet? Here’s the blurb:

Summary Judgment Response: “At issue in this case is the timeliness of B.C.’s response. A response to a no-evidence summary-judgment motion, including any evidence opposing the motion, is due seven days before the summary-judgment hearing. Rule 166a(c) provides that a response must be timely filed “[e]xcept on leave of court.” B.C. newly argued during en banc proceedings in the court of appeals that her response should relate back to her earlier, rejected electronic filing, a position she maintains at this Court. We agree with the court of appeals, however, that B.C. waived this argument by “waiting to raise the issue until after [the court of appeals] issued two opinions based on the unchallenged assertion that her response was untimely.” The question [*6] before us, then, is not whether B.C. timely filed her response, but whether the trial court considered her untimely response in granting summary judgment in Steak N Shake’s favor.

“[W]here nothing appears of record to indicate that late filing of a summary judgment response was with leave of court, it is presumed [the] trial court did not consider the response.” Courts of appeals considering whether a trial court granted leave commonly—and correctly—examine the record for “an affirmative indication that the trial court permitted the late filing.” That indication may arise from “a separate order, a recital in the summary judgment, or an oral ruling contained in the reporter’s record of the summary judgment hearing.” So while a “silent record” on appeal supports the presumption “that the trial court did not grant leave,” courts should examine whether the record “affirmatively indicates” the late-filed response was “accepted or considered.”

The court of appeals in this case did so, correctly asking whether the record contains an “affirmative indication” that the trial court permitted B.C.’s late-filed [*7] response. . . .

We nonetheless conclude that the trial court’s recital that it considered the “evidence and arguments of counsel,” without any limitation, is an “affirmative indication” that the trial court considered B.C.’s response and the evidence attached to it. . . . Our rules provide that a party may not amend its pleadings within seven days of a summary-judgment hearing without leave of court. In this context, we have held that “leave of court is presumed when a summary judgment states that all pleadings were considered, and when, as here, the record does not indicate that an amended pleading was not considered, and the opposing party does not show surprise.”

Similarly, while we presume that a trial court did not consider a late-filed response absent an affirmative indication in the record, a recital in a summary-judgment order that the trial court considered “the evidence” without qualification or limitation overcomes that presumption. [*9] And although Steak N Shake objected to the timeliness of B.C.’s response, it neither sought nor obtained a ruling on that objection before or after the trial court’s order; therefore, we have no basis to conclude the trial court did not consider all summary-judgment evidence on file at the time the motion was heard.” B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256 (Tex. 2020)

Another Supreme Court decision talked about the necessity of raising complaints in administrative type proceedings (a school board decision on a contract):

Good Cause exception: “In this Court, the district and the Commissioner contend that the evidence supports the board’s decision. In addition, as a threshold matter, they contend that Riou failed to challenge the application of a good cause per se exception at the local level, and thus she failed to preserve her complaint for judicial review.

We hold that Riou preserved her complaint. Riou challenged the sufficiency of the evidence supporting good cause to end her contract before the school board and the Commissioner. Riou’s argument that the Commissioner excused this lack of evidence by relying on an improper “per se” standard [*4] falls within this challenge.
. . . .
Riou’s consistent position is that the district lacked good cause to end her contract, and that the board’s decision is unsupported by the evidence. That argument fairly includes the examiner’s application of an exception that relieved the district from its statutory burden to show that Riou failed to meet professional standards “generally recognized and applied in similarly situated school districts.” n. 35 Riou argued extensively at the school board meeting that the district failed to carry its burden to show good cause, a position [*20] she maintained on appeal to the Commissioner. Because her challenge to a “good cause per se” exception falls within the scope of her challenge to the sufficiency of the evidence, we agree with the court of appeals that Riou preserved her challenge to the examiner’s use of “good cause per se” in ruling in favor of the district.” N. E. Indep. Sch. Dist. v. Riou, 598 S.W.3d 243 (Tex. 2020)

n. 35: “Tex. Educ. Code § 21.154(4). The Commissioner argues that the court of appeals’ preservation holding conflicts with Whitaker v. Moses, 40 S.W.3d 176 (Tex. App.—Texarkana 2001, no pet.). In Whitaker, a teacher argued on appeal that the school board had erred in using a substantial-evidence standard in deciding whether to end his term contract. Id. at 178-79. Because the teacher had failed to “bring the matter to the fore” before the school board, the Commissioner held that the teacher’s challenge was waived. The court of appeals affirmed, observing that  objections must be raised at the local level to be considered on appeal. Id. at 179. In this case, Riou challenged the sufficiency of the evidence to support her termination at the local level in argument to the local board. We disapprove of any reading of Whitaker that requires more at the local level than a challenge to the sufficiency of the evidence to invoke a substantial-evidence review under the statutory standard.” (Other footnotes omitted)

This is a court of appeals decision worth noting: while you have to raise a complaint that fees are not recoverable in the trial court, you can do so in a post-trial motion:

Attorney’s Fees: “Anthony argues that challenging the lack of statutory authority for attorney’s fees is a type of claim that cannot be waived and he cites Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) to support that proposition. However, Holland has at least one key distinguishing feature: as noted by the Texas Supreme Court, “[b]y asserting nonrecoverability [of attorney’s fees] in its motion for j.n.o.v., Wal-Mart gave the trial court ample opportunity to rule on the availability of attorney’s fees before an erroneous judgment was rendered.” Id. The court further noted that Wal-Mart “raise[d] a timely and specific objection in the trial court that attorney’s fees are not recoverable.” Id. at 95. Thus, Holland did not conclude that this type of claim can be raised for the first time on appeal; rather, the court concluded that raising the issue in a motion for j.n.o.v. sufficiently [*5] preserved the issue for appellate review. See id.

Unlike Holland, Anthony did not timely present to the trial court his challenge to the recoverability of attorney’s fees in this case. Anthony did not file a motion for j.n.o.v. to challenge the recoverability of attorney’s fees. And he cites no authority to show that this type of claim can be raised for the first time on appeal. Furthermore,  Texas caselaw consistently holds that almost every type of claim can be waived. See, e.g., In re Baby Boy R., 191 S.W.3d 916, 921 (Tex. App.—Dallas 2006, pet. denied) (observing that even constitutional claims can be waived if not properly preserved); Jess v. Libson, 742 S.W.2d 90, 92 (Tex. App.—Austin 1987, no writ) (refusing to address appellee’s cross-issue concerning the recoverability of attorney’s fees because “the record contains no specific objection to the submission of the issue of attorney’s fees” and thus appellees failed to preserve the issue for review). Therefore, we overrule Anthony’s sole issue.” Snowden v. Artesia Wells Ranch 1994, Ltd., No. 13-19-00157-CV, 2020 Tex. App. LEXIS 4022, at *4-5 (Tex. App.—Corpus Christi May 21, 2020)

Your complaint must be sufficiently specific:

Jury Charge: “When a single broad-form question commingles valid and invalid theories, a new trial is required if the appellate court cannot determine whether the jury’s verdict is based on an invalid theory. Harris County v. Smith, 96 S.W.3d 230, 232-33 (Tex. 2002) (citing Casteel v. Crown Life Ins. Co., 22 S.W.3d 378, 388 (Tex. 2000)). Such an error is presumed harmful because it “affirmatively prevent[s] the appellant from isolating the error [*21] and presenting its case on appeal.” Id. In order to preserve this error for appellate review, the complaining party must make a timely and specific objection. Thota v. Young, 366 S.W.3d 678, 691 (Tex. 2012); see also Tex. R. Civ. P. 274; TEX. R. APP. P. 33.1. A complaint of Casteel error need not specifically reference Casteel, but the objection must be sufficient to inform the trial court that the submission includes an invalid theory of liability. See Thota, 366 S.W.3d at 691. . . . We agree with HouseCanary. While TSI made global objections to the whole of Question 37, it did not specifically identify any issues with the “complexity score” and “AVM” portions of that question. Tex. R. Civ. P. 274; Tex. R. App. P. 33.1; see also Watts v. Watts, 396 S.W.3d 19, 23 (Tex. App.—San Antonio 2012, no pet.) (“In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court.”). Nor did it object to the broad-form nature of the question. See In re A.V., 113 S.W.3d 355, 363 (Tex. 2003) (holding Casteel complaint not preserved because objection did not “put [the] trial court on notice to submit a granulated question”); Watts, 396 S.W.3d at 23. Finally, the heart of a Casteel objection is that a broad-form question combines multiple legal theories, some of which are valid and some of which are not. See, e.g., Laredo Med. Grp. Corp. v. Mireles, 155 S.W.3d 417, 426-27 (Tex. App.—San Antonio 2004, pet. denied.). The objections TSI raised in the trial court—that “the alleged items that are claimed to be trade secrets are not clearly identified specifically for the Jury”; that the terms used in Questions 37 “are vague, nebulous, misleading, and it’s impossible to determine what they mean”; [*26] and “there’s no evidence that any of the items listed are trade secrets”—were not specific enough to put the trial court on notice that TSI believed the “AVM” and “complexity score” portions of Question 37 mixed valid and invalid legal theories. See Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 157 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We overrule TSI’s Casteel challenge to Question 37.” Title Source, Inc. v. Housecanary, Inc., No. 04-19-00044-CV, 2020 Tex. App. LEXIS 4116, at *20-21, *25-26 (Tex. App.—San Antonio June 3, 2020)

Your complaint must be timely:

Deemed Admissions: “Coker argues his postjudgment request for withdrawal of the deemed admissions was timely to preserve error for appellate review. In Wheeler v. Green, the supreme court stated there are equitable principles that permit a complaint about deemed admissions to be raised for the first time in a motion for new trial filed after a final summary judgment. . . . There are many distinctions between Wheeler and this case. Coker is an attorney. [*13] He knew his responses were late on April 12 when the Commission moved to deem admissions. He knew the requests for admissions had been deemed admitted on May 29 when the trial court signed the order deeming the requests for admissions admitted. On June 20, the Commission moved for summary judgment on the basis of the deemed admissions. Coker filed his response to the motion for summary judgment on June 6, but he did not request withdrawal of the deemed admissions. The reporter’s record from the summary judgment hearing on July 13 shows Coker did not request during the hearing that the deemed admissions be withdrawn. Nor does the record show Coker requested withdrawal of the deemed admissions between the June 20 partial summary judgment and the hearing on August 20 to determine the appropriate sanction for his violations of the Rules of Professional Conduct.

Coker should have realized his “mistake” of not timely responding to the requests for admissions and that he needed to move for withdrawal of the deemed admissions well before the partial summary judgment or the final judgment in this case. The equitable considerations that might permit a party to move postjudgment for withdrawal [*14] of deemed admissions are not present in this case. Coker’s postjudgment motion to strike deemed admissions was untimely and did not preserve his issue for appellate review.” Coker v. Comm’n for Lawyer Discipline, No. 05-18-01411-CV, 2020 Tex. App. LEXIS 4217, at *11-14 (Tex. App.—Dallas June 4, 2020)

You must get a ruling on your complaint, and it is always at least best to get a written order doing so:

Continuance: “In its second issue, Tejas contends the trial court abused its discretion by denying its request for a continuance, which it embedded in its response to the plea to the jurisdiction instead of as a separate filing. HN10 We review for abuse of discretion. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). “[W]hen a continuance is sought to pursue additional discovery, the motion must describe the evidence sought, explain its materiality, and show the party requesting the continuance has used due diligence to obtain the evidence.” Zaidi v. N. Tex. Tollway Auth., No. 05-17-01056-CV, 2018 Tex. App. LEXIS 10072, 2018 WL 6426798, at *1 (Tex. App.—Dallas Dec. 6, 2018, no pet.) (mem. op.). But a party that requests a continuance must obtain a written ruling to preserve any error for appeal, and Tejas failed to do so here. See Bench Co., Inc. v. Nations Rent of Tex., L.P., 133 S.W.3d 907, 909 (Tex. App.—Dallas 2004, no pet.).” Tejas Motel, L.L.C. v. City of Mesquite, No. 05-19-00667-CV, 2020 Tex. App. LEXIS 4225, at *17 (Tex. App.—Dallas June 4, 2020)

Motion to Compel: “Although Buholtz complains the trial court’s order granting summary judgment is in error because appellees failed to produce documents he requested or because the trial court had not ruled on his motion to compel, his argument has not been preserved for our review. To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint, and the trial court must rule on the motion or refuse to rule on the motion and the complaining party [*4] must then object to the refusal. Tex. R. App. P. 33.1. The record does not show Buholtz requested a hearing on his motion to compel. It also does not show the trial court ruled on Buholtz’s motion or refused to do so. To the extent Buholtz argues the trial court erred by not ruling on his motion, he failed to preserve that complaint for our review.” Buholtz v. Leap Prop. Mgmt., No. 05-19-00857-CV, 2020 Tex. App. LEXIS 4207, at *3-4 (Tex. App.—Dallas June 3, 2020)

The complaint you raise on appeal must comport with the complaint you raised in the trial court:

Jury Charge: “In her seventh issue, Stephanie argues the trial court erred in failing to submit a question to the jury regarding whether she substantially complied with the family service plan. In order to preserve a complaint regarding alleged error in the jury charge, a party must timely object to the alleged error and obtain a ruling in the trial court. In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Failure to object to the charge before it is read to the jury waives the complaint. Id. (citing Tex. R. App. P. 33.1(a)(1); Tex. R. Civ. P. 274).

Here, Stephanie did not request a question regarding substantial compliance with the family service plan, nor did she object to the charge on this basis. Rather, when asked whether he had any objections to the charge, Stephanie’s counsel stated: “The only objection I have . . . [is] that we should have a conservative [sic] question as afforded by Section 105.002 of the family code, Subsection C1, which basically says that in a jury trial, a party is entitled to a just verdict by a jury on the issue of conservatorship.” Family Code section 105.002 does not address substantial compliance with a family service plan. See Tex. Fam. Code Ann. § 105.002. Therefore, by failing to object to the jury charge on this basis, Stephanie waived her complaint, [*11] and we overrule her seventh issue. See B.L.D., 113 S.W.3d at 349.” In the Interest of M.X.R., No. 04-20-00042-CV, 2020 Tex. App. LEXIS 4063, at *10-11 (Tex. App.—San Antonio May 27, 2020)

There were also a few cases in which courts held that parties failed to preserve their complaints by not raising the complaints in the trial courts.

All for now.  Hope this helps.  Y’all stay safe and well.

Yours, Steve Hayes

817/371-8759; shayes@stevehayeslaw.com; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases,May 23, 2020

May 23, 2020

Dear Gang ‘O Mine:

I know all of you are aware of the ransomware attack on the efacilities of the Office of Court Administration.  OCA and the courts are working diligently to bring all the courts fully back online, but in the meantime the ransomware attack continues to affect the abilities of the appellate courts to function. The status of the OCA website, and the appellate courts’ functionality, continues to improve on an almost daily (and sometimes, hourly) basis, albeit in small increments. The old txcourts.gov website is up again, with partial functionality–for example, judicial biographies (some outdated) are up again, but using the Case Search feature will not produce a result.  More and more courts (specifically, as of this writing, the Houston First, Fort Worth, Austin, San Antonio, Dallas, Amarillo, El Paso, Eastland, Tyler, Corpus Christi and Houston Fourteenth Courts) are able to take advantage of the alternate website set up by OCA, www.txcourts.net, to post their opinions, and it looks like to me that Lexis (and I suspect Westlaw) continues to pick up those opinions. Everything I hear is that OCA and the courts continue to tirelessly stay after getting the networks up and running again, and diligently doing the work of the courts in the meantime, as existing resources allow.

As evidence of this latter fact, we have error preservation opinions this week, so let’s get on to those.

Table of Contents

This is one worth noting: while you have to raise a complaint that attorney’s fees are not recoverable in the trial court, you can do so in a post-trial motion

Remember–a party can raise a complaint about subjection matter jurisdiction for the first time on appeal

The Blurbs

This is one worth noting: while you have to raise a complaint that fees are not recoverable in the trial court, you can do so in a post-trial motion:

Attorney’s Fees: “Anthony argues that challenging the lack of statutory authority for attorney’s fees is a type of claim that cannot be waived and he cites Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) to support that proposition. However, Holland has at least one key distinguishing feature: as noted by the Texas Supreme Court, “[b]y asserting nonrecoverability [of attorney’s fees] in its motion for j.n.o.v., Wal-Mart gave the trial court ample opportunity to rule on the availability of attorney’s fees before an erroneous judgment was rendered.” Id. The court further noted that Wal-Mart “raise[d] a timely and specific objection in the trial court that attorney’s fees are not recoverable.” Id. at 95. Thus, Holland did not conclude that this type of claim can be raised for the first time on appeal; rather, the court concluded that raising the issue in a motion for j.n.o.v. sufficiently [*5] preserved the issue for appellate review. See id.

Unlike Holland, Anthony did not timely present to the trial court his challenge to the recoverability of attorney’s fees in this case. Anthony did not file a motion for j.n.o.v. to challenge the recoverability of attorney’s fees. And he cites no authority to show that this type of claim can be raised for the first time on appeal. Furthermore, Texas caselaw consistently holds that almost every type of claim can be waived. See, e.g., In re Baby Boy R., 191 S.W.3d 916, 921 (Tex. App.—Dallas 2006, pet. denied) (observing that even constitutional claims can be waived if not properly preserved); Jess v. Libson, 742 S.W.2d 90, 92 (Tex. App.—Austin 1987, no writ) (refusing to address appellee’s cross-issue concerning the recoverability of attorney’s fees because “the record contains no specific objection to the submission of the issue of attorney’s fees” and thus appellees failed to preserve the issue for review). Therefore, we overrule Anthony’s sole issue.” Snowden v. Artesia Wells Ranch 1994, Ltd., No. 13-19-00157-CV, 2020 Tex. App. LEXIS 4022, at *4-5 (Tex. App.—Corpus Christi May 21, 2020)

Remember–a party can raise a complaint about subjection matter jurisdiction for the first time on appeal:

Subject Matter Jurisdiction: “ In its first issue, Suite 900 argues that although the trial court initially had subject-matter jurisdiction over the Vegas’ claims, the Vegas divested the trial court of that jurisdiction when they withdrew the surplus sale proceeds from the County Court Registry. n. 13 n. 13 The Vegas argue that Suite 900 failed to preserve error regarding its first issue concerning subject-matter jurisdiction. However, subject-matter jurisdiction is an issue that may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).” Suite 900, LLC v. Vega, No. 02-19-00271-CV, 2020 Tex. App. LEXIS 4008, at *19, n. 13 (Tex. App.—Fort Worth May 21, 2020)

I’ve not included the opinions which address situations where complaints were not raised at all–save for Snowden, above, which pointed out the post-trial opportunities to complain about the recoverability of fees.

That’s all for now.  Y’all stay safe and well.

Yours,

Steve Hayes

817/371-8759; shayes@stevehayeslaw.com; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, May 16, 2020

May 16, 2020

Dear All:

I know all of you are aware of the ransomware attack on the e-facilities of the Office of Court Administration.  From all reports, OCA and the courts are working diligently to bring all the courts fully back online, but in the meantime the ransomware attack has definitely affected the abilities of the appellate courts to function.  More and more courts–specifically, as of this writing, the Fort Worth, San Antonio, Dallas, and Corpus Christi Courts– are able to take advantage of the alternate website set up by OCA, www.txcourts.net, to post their opinions (https://www.txcourts.net/orders), and it looks like to me that Lexis, and I suspect Westlaw, have been able to pick up those opinions.

We don’t have much in the way of error preservation decisions this week, but we do have one court of appeals case (a pretty helpful one, as reflected in the following Table of Contents), and one case from the Texas Supreme Court.  I also thought I would give you the benefit of my limited efiling experience with the Fort Worth Court this last week, to sort of spread the word that the system is working, the courts are processing their work, and they continue to focus on getting the crucial work done.

Table of Contents

The San Antonio Court held that a response to a summary judgment motion preserved a complaint that there was evidence of gross negligence

The Supreme Court reminded us of the necessity to comply with any timeliness requirements established in other rules and statutes

Defamation Mitigation Act

Here is my experience with efiling in the Fort Worth Court this past week, which reflects the system still works–if you call a court’s clerk, you can find out how it works on your case

The Blurbs

Here is a guide, in which the San Antonio Court held that a response to a summary judgment motion preserved a complaint that there was evidence of gross negligence :

Summary Judgment: “Osburn’s live petition alleged the “Defendants allowed the dog to remain on the premises, when they knew, or by the exercise of reasonable diligence should have known, that the dog was an unreasonably dangerous condition,” and “[p]ermitting the dog to remain on the premises under such circumstances constituted actual conscious indifference to the rights, safety, and welfare of” Osburn. The Bakers’ no-evidence motion alleged “no evidence exist[s] that Defendants acted with a conscious indifference towards the right[s], safety, and welfare of others.” Osburn’s summary judgment response alleged “[s]trict liability and [g]ross negligence are proper because Defendants knew of the dangerous propensities exhibited by their dog and they failed to do anything to warn Plaintiff of such danger,” and “Defendants were aware of the dangerous nature of the dog and that they should have taken extra precautions so as to avoid injury to” Osburn. Osburn presented evidence that Mrs. Baker was so worried about Bady’s habit of “nipping at people” that she wanted to put him up during Osburn’s visit, but decided against doing so on [*11] the advice of her husband.

We conclude Osburn properly responded to the gross negligence allegations in the Bakers’ no-evidence summary judgment motion and presented evidence showing that they acted with conscious indifference. See Tex. R. Civ. P. 166a(i). We further conclude Osburn preserved his challenge to the gross negligence portion of the trial court’s summary judgment order on appeal. See Tex. R. App. P. 38.1. Osburn presented some evidence that Mrs. Baker believed Bady was so dangerous that he needed to be put away to protect Osburn. Osburn also presented evidence that, despite this knowledge, the Bakers did not put Bady away. That is some evidence the Bakers acted with conscious indifference towards Osburn’s rights, safety, and welfare. See Turner v. Duggin, 532 S.W.3d 473, 487 (Tex. App.—Texarkana 2017, no pet.) (concluding owners’ failure to secure dog even though they knew it had dangerous propensities constituted some evidence of gross negligence). We therefore hold the trial court erred in granting a no-evidence summary judgment in favor of the Bakers on Osburn’s gross negligence claim.” Osburn v. Baker, No. 04-19-00568-CV, 2020 Tex. App. LEXIS 3916, at *10-11 (Tex. App.—San Antonio May 13, 2020)

The Supreme Court reminded us of the necessity to comply with any timeliness requirements established in other rules and statutes:

Defamation Mitigation Act: “TMZ argues that Jones failed to make a “timely and sufficient request” as required by Section 73.055(a)(1) of the DMA and, in fact, did not comply with the statute at all. We disagree. Bressi’s communications with TMZ constitute a Request; TMZ actually understood Jones to have made a Request; and if Jones’s timely communications with TMZ were not “sufficient” under the Act, TMZ’s failure to timely challenge sufficiency as required by Section 73.058(c) waived any insufficiency complaints.” Warner Bros. Entm’t v. Jones, No. 18-0068, 63 Tex. Sup. Ct. J. 990, 2020 Tex. LEXIS 397, at *13 (May 8, 2020)

Here is my experience with efiling in the Fort Worth Court this past week, which reflects the system still works–if you call a court’s clerk, you can find out how it works on your case:

The Second Court continues to do what it can in the absence of a fully functioning network, with a focus on getting the crucial work done. Here is what I can add, on a personal basis:

      • The good news is that eFileandServe still works.
        • For example, this week, I filed an unopposed (thank you, David Keltner and Jody Sanders) motion for a briefing extension in the Second Court, which eFileTexas notified me had been submitted.
      • The  Second Court continues to do what it can in the absence of a fully functioning network, with a focus on getting the crucial work done.
        • To continue with my motion for extension of time, while I did not get an e-notification that it had been filed, the morning after e-submitting it I called the Clerk’s office, just to make sure the motion had been filed. The Deputy Clerk assured me that, if eFileTexas reflected that it had been submitted, the Clerk’s office either had or would receive it, and they would print it and route it by hand to where it needed to go at the Court.
        • Sure enough, toward the end of the day after esubmitting the motion, I received (by fax) a copy of the Order from the Second Court granting the extension.

Different courts of appeals have been affected differently by the network outage, and so they will differ as to how they get their work done. But it is my impression they are all doing the best they can with what they have, and OCA continues to scrub all of its e-facilities with the hopes of launching a new network as soon as safely possible.

All for now.  I hope this helps.  Y’all stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com