Error Preservation in Texas Civil Cases, October 8, 2018

October 8, 2018

Dear All:

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

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

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

Summary Judgment Evidentiary Objections

Some complaints may be raised for the first time on appeal

Affidavit
Juvenile

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

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

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

Damages
Legal and Factual Sufficiency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yours,

Steve Hayes (shayes@stevehayeslaw.com)

www.stevehayeslaw.com

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Error Preservation in Texas Civil Cases, September 22, 2018

September 22, 2018

Dear Folks:

I know, it’s been a few weeks.  The courts took a little bit of a breather following the rush to get cases out the door before the end of their fiscal years, so I thought I would wait until I had a few cases to post.  This entry will cover the following recent error preservation decisions:

Some complaints can be raised for the first time on appeal–like the failure to appoint counsel in a parental right termination case

Counsel

Your complaint must be timely

Dismissal

Your Complaint has to be specific enough

Jury Selection

Your complaint has to comply with the pertinent rules

Factual Sufficiency

You have to get a ruling on your complaint

Discovery
Limitations
Special Exceptions
Summary Judgment Evidence

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

Dismissal

And now, here are those decisions.

Some complaints can be raised for the first time on appeal–like the failure to appoint counsel in a parental right termination case:

Counsel: “In this case, J.B.J., Jr. was incarcerated throughout the case and was never informed of his right to be represented by an attorney or his right to a court-appointed attorney if he was found to be indigent. See Tex. Fam. Code Ann. §§ 107.013(a)(1), 262.201(c), 263.0061(a). Further, the final trial of this case began without J.B.J., Jr. present and a witness testified without being cross-examined by J.B.J., Jr. However, the Department argues that J.B.J., Jr. failed to preserve his complaints for appellate review. The Department contends that J.B.J., Jr. did not object before or during trial to the timing of the appointment of his trial counsel. We disagree.

In Marin v. State, the court of criminal appeals stated that a defendant [*6] must expressly relinquish certain rights and that these rights cannot be extinguished by inaction alone. See Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993). The right to the assistance of counsel is one of these rights. Id. at 279. Instead, the State must obtain the defendant’s permission by express waiver or the “intentional relinquishment or abandonment of a known right or privilege.” Id. This “waivable right” is never deemed to have been waived unless the defendant says so plainly, freely, and intelligently, sometimes in writing and always on the record. Id. at 280. Because some courts have recognized that in certain contexts termination suits are quasi-criminal, we determine that the right of assistance of counsel cannot be waived. In the Interest of B.L.D., 56 S.W.3d 203, 211-12 (Tex. App.—Waco 2001) (rev’d on other grounds, 113 S.W.3d 340, 342-43 (Tex. 2003)) (noting that statutory right to counsel in termination proceedings includes a due process right that counsel be effective); In re J.M.S., 43 S.W.3d 60, 63 n. 1 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (arguing by analogy in termination case that certain other family law proceedings are quasi-criminal in nature); In the Matter of the Marriage of Hill, 893 S.W.2d 753, 755-56 (Tex. App.—Amarillo 1995, writ denied) (likening the procedural issues in parental termination cases to those of criminal cases as both implicate constitutional concerns); see also Edwards v. Texas Dep’t of Protective and Regulatory Servs., 946 S.W.2d 130, 135 (Tex. App.—El Paso 1997, no writ) (quoting approvingly of Hill). Thus, J.B.J., Jr. did not waive his right to assistance of counsel.” In the Interest of A. J., No. 12-18-00074-CV, 2018 Tex. App. LEXIS 7452, at *5-6 (Tex. App.—Tyler Sep. 10, 2018)

Your complaint must be timely:

Dismissal: “Under the law as it existed on the date this suit was filed, a trial court did not lose jurisdiction over a termination proceeding when the dismissal date passed. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). Furthermore, a party who failed to “make a timely motion to dismiss” prior to the commencement of the trial waived the right to object to the trial court’s failure to dismiss the suit. Former Fam. § 263.402(b); see In re K.L.C., No. 11-14-00019-CV, 2014 Tex. App. LEXIS 7766, 2014 WL 3639124, at *6 (Tex. App.—Eastland July 17, 2014, pet. denied) (mem. op.). Although Section 263.402(b) was deleted by the legislature in the 2017 amendments to the Family Code, it remained in effect in this case. See In re T.W., No. 07-18-00056-CV, 2018 Tex. App. LEXIS 6309, 2018 WL 3799883, at *2 (Tex. App.—Amarillo Aug. 9, 2018, no pet. h.) (holding that parents were obligated to timely move for dismissal). Here, Appellant failed to file her motion to dismiss prior to the commencement of the trial. Therefore, under the law applicable to [*4] this case, she waived the right to object to any failure of the trial court to dismiss this suit based upon the mandatory dismissal date. See former Fam. § 263.402(b).” In the Interest of A.L.S., No. 11-18-00090-CV, 2018 Tex. App. LEXIS 7533, at *3-4 (Tex. App.—Eastland Sep. 13, 2018)

Your Complaint has to be specific enough:

Jury Selection: “To preserve error, a party must inform the trial court—either prior to or contemporaneously with the tendering of peremptory strikes—that it has used its peremptory strike against the venire member involved and that it has exhausted its remaining strikes. . . . The party must then identify to the trial court a specific objectionable venire member who will remain on the jury list because the party has no more strikes available. . . . Only when the trial court is made aware that an objectionable juror will be chosen is the trial court then able to determine if the party was in fact forced to take an objectionable juror. . . . Because Appellants’ counsel did not notify the trial court which specific objectionable venire member or members remained on the jury list, he has failed to preserve this complaint for our review.” Luo v. Levy, No. 02-17-00418-CV, 2018 Tex. App. LEXIS 7730, at *2-3 (Tex. App.—Fort Worth Sep. 20, 2018)

Your complaint has to comply with the pertinent rules:

Factual Sufficiency: “In her first, second, third, and fourth issues, J.T. contends that the evidence is factually insufficient to support the jury’s findings that her parental rights to Z.T., E.B., and P.B. should be terminated pursuant to subsections (D), (E), (N), and (O) of Texas Family Code Section 161.001(b)(1). A point in a motion for new trial is a prerequisite to a complaint of factual insufficiency of the evidence to support a jury finding. Tex. R. Civ. P. 324(b)(2);. . . . J.T. did not file a [*5] motion for new trial. Therefore, she has waived her complaint about the factual sufficiency of the evidence to support the jury’s findings.” In the Interest of Z.T., No. 12-18-00078-CV, 2018 Tex. App. LEXIS 7652, at *4-5 (App.—Tyler Sep. 19, 2018)

You have to get a ruling on your complaint:

Discovery: “Additionally, Reynolds complains in her appeal that Wellman and his attorney failed to respond to requests that she filed seeking discovery. Yet when Reynolds complained during the hearing that Wellman had failed to respond to her requests seeking discovery, the trial court told Reynolds that she had waited too long to bring any disputes over discovery to the court’s attention. Reynolds acknowledged that she had failed to complain about any discovery matters prior to the trial, and she then failed to secure a ruling on the merits of any of her pre-trial motions. We hold that the complaints that Reynolds advances in issue two were not properly preserved for our review on appeal. See Tex. R. App. P. 33.1.” Reynolds v. Wellman, No. 09-17-00459-CV, 2018 Tex. App. LEXIS 7714, at *3 (Tex. App.—Beaumont Sep. 20, 2018)

Limitations: “On appeal, Cavazos argues in part that the trial court erred if it granted summary judgment on these grounds because Stryker “fail[ed] to affirmatively plead a statute of limitations defense within all applicable deadlines.” We agree. Limitations is an affirmative defense which must be pleaded, or is waived. Tex. R. Civ. P. 94; Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 155 (Tex. 2015). Stryker concedes that it did not plead a limitations defense in its original answer, but it argues that the trial court granted it leave to file an amended answer to include that defense. The record contains a “Motion for Leave to Amend Answer” filed by Stryker but it does not contain an explicit ruling on that motion, and it does not reflect that [*27] an amended answer was ever actually filed. Accordingly, Stryker waived the defense.

The dissent argues that the limitations issue was tried by consent, and it suggests that Cavazos waived her appellate complaint regarding this defense because the record contains no written response by Cavazos to Stryker’s supplemental summary judgment motion. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991) (holding  in the summary judgment context that “[t]he party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal”). But trial by consent is intended to cover only the “exceptional” case in which it “clearly appears from the record as a whole that the parties tried the unpleaded issue”; it “should be applied with care” and “is not intended to establish a general rule of practice.” Guillory v. Boykins, 442 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.); In re A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.); Greene v. Young, 174 S.W.3d 291, 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Here, Stryker first attempted to raise the limitations defense in its motion for leave to amend its answer, filed on September 28, 2016, which was after the initial summary judgment hearing. At the November 8, 2016 hearing, Cavazos’s counsel specifically complained that Stryker “never indicated ever in any [*28] pleading, in any discovery request, in any request for disclosure that they were gonna assert” the limitations defense. This is not an “exceptional” situation warranting application of the trial-by-consent doctrine. See Guillory, 442 S.W.3d at 690; cf. Roark, 813 S.W.2d at 495 (“Because Roark failed to direct the trial court’s attention to the absence of the pleading in his written response or before the court rendered judgment, this complaint may not be raised on appeal.”).” Cavazos v. Stryker Sales Corp., No. 13-17-00247-CV, 2018 Tex. App. LEXIS 7228, at *26-28 (Tex. App.—Corpus Christi Aug. 31, 2018)

Special Exceptions: “Special exceptions are used to challenge a defective pleading. See Tex. R. Civ. P. 91. Failure to obtain a timely hearing and a ruling on special exceptions waives the exceptions and does not preserve them for appeal. McAllister v. Samuels, 857 S.W.2d 768, 773 (Tex. App.—Houston [14th Dist.] 1993, no writ) (appellants asserted [*13] that the trial court erred by “entering a final judgment without ruling on, or even considering,” their special exceptions; appellants waived error on this point because the record did not show that appellants obtained a hearing and a ruling on their special exceptions). The appellate record does not show that James requested a hearing on his special exceptions, or that a hearing was held or a ruling obtained. James did not preserve this issue for appeal.” Davis v. Angleton Indep. Sch. Dist., No. 14-17-00692-CV, 2018 Tex. App. LEXIS 7467, at *12-13 (App.—Houston [14th Dist.] Sep. 11, 2018)

Summary Judgment Evidence: “Next, Furmanite, Galbraith, and Southcross argue that we cannot consider Lisa’s supplemental affidavit in this appeal because they claim it is a “sham affidavit.”. . . . On appeal, Furmanite [*7] asserts that its sham affidavit objection “was implicitly sustained by the trial court.” Nothing in the record indicates the trial court ruled on Furmanite’s sham affidavit objection. “Absent a timely objection and a ruling from the trial court, the complaint that a summary-judgment affidavit is a sham is waived for purposes of appellate review.” In re T.A.D., No. 14-16-00717-CV, 2017 Tex. App. LEXIS 1864, 2017 WL 924550, at *5 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.). Furthermore, objected-to evidence is valid summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017). No such order appears in the record.” Martinez v. Furmanite Am. Inc., No. 04-17-00318-CV, 2018 Tex. App. LEXIS 7642, at *6-7 (Tex. App.—San Antonio Sep. 19, 2018)

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

Dismissal: “In her sixth issue, Stacey argues that the trial court erred by not giving her the opportunity to take discovery and by converting a non-evidentiary hearing into [*14] a pretrial evidentiary hearing without proper notice. As support for this issue, she similarly asserts that Richard’s motion to dismiss was limited to a challenge to her pleadings and, therefore, that she did not have notice that she would have to present evidence. Stacey, however, did she raise this argument with the trial court. See Tex. R. App. P. 33.1(a) . . . When the trial court advised Stacey that it was her “burden on the [Rule 91a] motion to dismiss, to establish what is required legally for proceeding on a bill of review” and then told her that he would hear from her as to evidence, Stacey stated to the trial court that she was not prepared to present evidence because she had been advised by an attorney that evidence was not considered with a Rule 91a motion. The trial court then further explained her burden to make a “prima facie showing” on the alternative ground. In response, Stacey requested a continuance “so that [she] could hire counsel for an evidentiary hearing,” but she did not raise the argument that she raises on appeal that Richard’s motion to dismiss was limited to a challenge on the pleadings. Thus, she has waived this issue for our review. See Tex. R. App. P. 33.1(a).” Hammer v. Hammer, No. 03-18-00028-CV, 2018 Tex. App. LEXIS 7574, at *13-15 (Tex. App.—Austin Sep. 18, 2018)

Then, there were the usual spate of cases in which the party failed to raise the complaint in the trial court at all.

I hope this helps.  Y’all take care.

Yours,

Steve Hayes

shayes@stevehayeslaw.comwww.stevehayeslaw.com

 

Error Preservation in Texas Civil Cases, September 3, 2018

September 1, 2018

Dear All:

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

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

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

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

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

Affidavits
Notice
Summary Judgment

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

Continuance
Discovery
Mandamus
Dissent
Evidence
Pleading

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

Cases confirming that your complaint must be sufficiently specific concerning:

Evidence
Jury Selection

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

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

Now for the cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Your complaint must be sufficiently specific:

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

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

You must comply with the pertinent rules:

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

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

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

And then there were more than a dozen cases holding that parties had not preserved error because they failed to raise their complaint in the trial court.

I hope this helps.  Y’all take good care.

Yours,

Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, August 25, 2018

August 25, 2018

Dear All:

The cases covered in this blog entry include:

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

Ambiguity
Discovery

When the collective agreement governing the complaint made in the administrative process does not place the issue in the purview of the agency, and that issue may be first raised on the appeal to the trial court

Administrative Law

Your complaint on appeal must comport with the complaint raised in the trial court

Constitution

The record must reflect that you made your complaint in the trial court

Notice

Not often do courts of appeals analyze an error preservation challenge based on the specificity requirement of Rule 33.1. Here is a case in which the court held that the complaint was not sufficiently specific to bring it to the trial court’s attention, and another where the complaining party did not tell the trial court why she was entitled to the discovery she sought:

Ambiguity: “ We discern no contract formation challenge on this record, and we do not believe that we are within our power to address the effect of the ambiguities for two reasons. First, counsel never actually challenged the arbitration agreement on formation grounds in the trial court, and even under a liberal view of the record, counsel’s stray references to ambiguity in pleadings and oral argument at the hearing cannot be expanded to embrace a formation challenge that is cognizable on appeal.
i. Double Eagle’s Appellate Argument Does Not Comport with Its Argument in the Trial Court
. . . . we [*27] can only affirm the trial court’s judgment on a contract malformation ground if Double Eagle actually advanced a contract malformation ground in resisting arbitration in the trial court. Bray, 499 S.W.3d at 102 (affirmation of denial appropriate only on those grounds advanced in the trial court).

This dissent next maintains that even if the burden was on Double Eagle, this Court can entertain appellate argument related to contract malformation because Double Eagle “indirectly” alerted the trial court to the contract malformation issue by referring to the arbitration clause’s ambiguous and conflicting terms in its pleadings and at the motion to compel hearing. We do not find Double Eagle’s fleeting references to the ambiguity to be enough to place the issue of contract malformation before the trial court. . . . . None of these three defensive grounds asserted by Double Eagle in the trial court ever raised any formation issues; rather, they raised only affirmative defenses to enforcement (ground one and two) and interpretational issues (ground three). And while we look to the content of the argument in a pleading and not just the subject headings in deciding what issues were before the trial court, Double Eagle only mentioned the ambiguity in passing twice.

First, Double Eagle mentioned the ambiguity in the Background portion of factual recitals when it characterized the arbitration clause as being “ambiguous, onerous, and internally inconsistent[.]” The ambiguity is also mentioned in passing in Double Eagle’s response as part of an argument Double Eagle makes about Ridge having waived the right to arbitrate by substantially invoking the judicial process. . . .

Although Double Eagle mentioned the ambiguity, Double Eagle never once argued in its pleading that the ambiguity dealt with material terms or that the conflicting provisions otherwise invalidated the arbitration agreement. The reference to ambiguity occurred in a discussion of prejudice resulting from a purported waiver of the right to arbitrate, and even then, it appeared only in the context of a general complaint about how the arbitration rules would not provide Double Eagle with as much discovery as the Texas Rules of Civil Procedure. The gulf between this argument and the argument advanced on appeal regarding contract malformation based on a lack of a meeting of the minds is too wide to be bridged. The conceptual connection between the trial argument and the appellate argument is simply not there.

Counsel’s arguments during the Tipps hearing were also not enough to alert the trial court about any potential contract malformation issues. At the hearing, counsel for Double Eagle focused his argument heavily on the subjects of fraudulent inducement and [*31] unconscionability . . . .[But b]eyond this comment that the ambiguity was “interesting,” counsel never again returned to the issue of the arbitrator’s identity. Apart from using the poor draftsmanship of the arbitration agreement to make a brief rhetorical point to the trial court, the legal effect of these conflicting provisions was never discussed at all. Instead, Double Eagle focused its argument on the inherent unfairness of the transaction as a whole from a substantive and procedural standpoint, repeatedly arguing that the McDaniels transaction was a “scam” and a “bait and switch” that resulted in the transfer of an oil-and-gas interest for below-market value. While that argument does embrace fraud-based or unconscionability-type challenges to the arbitration agreement, it does not subsume a meeting-of-the-minds or formation argument.

. . . .

Legal argument is needed to determine whether this ambiguity is fatal to the entire contract or an interpretational bump in the road. Legal argument related to that distinction is what is lacking on this record. And the lack of legal argument in the trial court on that specific point ties our hands on appeal and prevents us from addressing the merits of this specific controversy. A complaint must be made with sufficient specificity before it is considered to be before the trial court. Tex.R.App.P. 33.1. We cannot conclude that Double Eagle raised the issue of contract malformation based on a meeting-of-the-minds failure with sufficient specificity so as to alert the trial court and opposing counsel that this was a basis for resisting arbitration. Consequently, we cannot entertain Double Eagle’s arguments related to formation problems on appeal because formation arguments were never advanced [*34] by Double Eagle in the trial court as a basis for denying a motion to compel arbitration. The appellate argument does not comport with the trial argument.” Ridge Nat. Res. v. Double Eagle, No. 08-17-00227-CV, 2018 Tex. App. LEXIS 6781, at *23-34 (App.—El Paso Aug. 24, 2018)

Discovery: “As to the sub-issue concerning discovery, Kelly has [*11] failed to preserve any error. First, as an appellant, Kelly has failed to bring before this court the record of any hearing before the trial court. Secondly, the only record reference cited in Kelly’s brief is a reference to a Motion to Reconsider Letter Ruling of July 5, 2016, wherein Kelly asked the trial court to reconsider its decision to delay “formal discovery” until after she was given the opportunity to replead and respond to the defendant’s motion to dismiss. No where does Kelly present any manner of offer of proof or bill of exceptions to enlighten the court as to just what discovery was reasonable and necessary.HN8 In an appeal from a discovery or evidentiary ruling, the appellant must preserve error by presenting a “timely request, objection, or motion,” setting forth the basis of the objection and obtaining a ruling from the trial court. Tex. R. App. P. 33.1. In the absence of such a request and ruling, Kelly has waived any argument pertaining to the denial of discovery.” O’Shea v. O’Shea, No. 07-16-00321-CV, 2018 Tex. App. LEXIS 6530, at *10-11 (App.—Amarillo Aug. 17, 2018)

Sometimes, courts have held that a party appealing from an administrative agency’s ruling has waived an issue by not raising it before the agency. But keep in mind that when the collective agreement governing the complaint made in the administrative process does not place the issue in the purview of the agency, and that issue may be first raised on the appeal to the trial court:

Administrative Law: “The Commissioner’s argument conflates concepts of waiver with concepts of jurisdiction. [*22] It may be the case that a party who fails to raise a particular complaint with a school district in accordance with an applicable local grievance policy will not have a record to present to the Commissioner that can support the complaint. While the party may be found to have waived that complaint or failed to preserve it for a subsequent appeal to the Commissioner, it does not follow that the Commissioner lacks jurisdiction over the appeal itself. In fact, in his brief in this appeal, the Commissioner cites Texas Rule of Appellate Procedure 33.1, which addresses preservation of error, as support for the proposition that Solis was required to “first present her claim to the school district (the initial decision-maker) before raising it on appeal to the Commissioner.” See Tex. R. App. P. 33.1 (preservation of appellate complaints). The Commissioner’s brief also states that Solis “failed to preserve her claim and the Commissioner properly dismissed it.” We will, therefore, consider whether Solis was required to seek relief from the board of trustees in order to preserve for Commissioner review her claim that she was aggrieved by MCISD’s decision to discontinue her employment despite it having failed to give her notice of proposed nonrenewal [*23] of a term contract governed by the TCNA. See HN14 Tex. Educ. Code § 21.206(c) (failure to give notice within time specified constitutes election to employ teacher in same professional capacity for following school year). . . . the Commissioner is correct that an employee filing a “complaint” must comply with the requirement that the complaint identify the policy, statutory provisions, or administrative [*25] regulations alleged to have been violated. However, DGBA (Local) specifically excludes from its purview certain categories of employee complaints that are to be submitted in accordance with other district policies, including “[c]omplaints concerning the proposed nonrenewal of a term contract issued under Chapter 21 of the Education Code, which shall be submitted in accordance with DFBB.” Thus, while Solis’s complaint that her reassignment from an executive director position to an assistant principal position was retaliation based was subject to the requirements in grievance policy DGBA (Local), her complaint regarding MCISD’s nonrenewal of what she alleged to be a term contract was not.” Tex. Comm’r of Educ. v. Solis, No. 03-18-00245-CV, 2018 Tex. App. LEXIS 6636, at *21-25 (App.—Austin Aug. 22, 2018)

Your complaint on appeal must comport with the complaint raised in the trial court:

Constitutional: “In his first issue, Cody argues that the trial court violated his rights under the U.S. Constitution by denying his request for a mistrial because he was not allowed to participate beyond the first morning of jury selection. . . . While Cody’s counsel moved for mistrial, at no time during the trial did counsel move for mistrial or object to proceeding with trial specifically on constitutional grounds nor was a constitutional argument raised in a motion for new trial. Accordingly, Cody has failed to preserve his alleged constitutional violation for appellate review.” In the Interest of P.L., No. 07-18-00157-CV, 2018 Tex. App. LEXIS 6770, at *4-8 (App.—Amarillo Aug. 23, 2018)

The record must reflect that you made your complaint in the trial court:

Notice: “A party who receives late notice of a hearing must preserve the complaint in the trial court by bringing the inadequate notice to the trial court’s attention by objecting to the hearing going forward or by moving for a continuance. See Low v. Henry, 221 S.W.3d 609, 618 (Tex. 2007). Elijah asserts on appeal that he “objected in open court” that he had not had adequate time to gather information, but we have no reporter’s record of the summary-judgment hearing, and the clerk’s record [*10] does not show that the Nelsons objected to the hearing or sought a continuance.” Nelson v. Go Green, LLC, No. 14-17-00571-CV, 2018 Tex. App. LEXIS 6709, at *9 (App.—Houston [14th Dist.] Aug. 23, 2018)

That’s all for now.  I hope this helps.

Yours,

Steve Hayes

shayes@stevehayeslaw.comwww.stevehayeslaw.com

Error Preservation in Texas Civil Cases, August 20, 2018

August 20, 2018

Dear All:

Here is a list of those things covered in this entry in the blog:

You may preserve a legal and factual sufficiency complaint in your motion for new trial

Legal and Factual Sufficiency

You can waive a complaint about the lack of pleading a cause of action if you try the issue by consent

Pleading

You have to make your complaint timely

Evidence

You must get a ruling on your complaint

Supersedeas

Then, there were fourteen cases in which courts held that the complaint was not raised at all in the trial court.

You may preserve a legal and factual sufficiency complaint as to the jury verdict in your motion for new trial:

Legal and Factual Sufficiency: “In his first and second issues, Ratliff argues the evidence is legally and factually insufficient to support the finding that he is a sexually violent predator. [*4] Ratliff preserved these issues for appeal by raising them in his motion for new trial. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 324(b); T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex. 1992) (legal sufficiency challenge following jury trial may be preserved by motion for new trial).” In re Commitment of Ratliff, No. 05-16-01425-CV, 2018 Tex. App. LEXIS 6329, at *3-4 (App.—Dallas Aug. 13, 2018)

You can waive a complaint about the lack of pleading a cause of action if you try the cause of action by consent:

Pleading: “‘When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Tex. R. Civ. P. 67; Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005) . . . .Johnson v. Oliver, 250 S.W.3d 182, 186 (Tex. App.—Dallas 2008, no pet.). However, when the evidence of an unpleaded matter is relevant to pleaded issues, the evidence could not be expected to elicit an objection so the unpleaded matter is not tried by consent. Moneyhon v. Moneyhon, 278 S.W.3d 874, 879 n.6 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Trial by implied consent “is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the unpleaded issue. It is not intended to establish a general rule of practice and should be applied with care, and in no event in a doubtful situation.” Jay Fikes & Associates v. Walton, 578 S.W.2d 885, 889 (Tex. Civ. App.—Amarillo 1979, writ ref’d n.r.e.); Libhart v. Copeland, 949 S.W.2d 783, 797 (Tex. App.—Waco 1997, no writ) . . . .The court determines whether an issue was tried by implied consent by examining the record, not for evidence of the issue, but for evidence of trial of the issue. Beck v. Walker, 154 S.W.3d 895, 901 n.3 (Tex. App.—Dallas 2005, no pet.). . . . In the present matter, it is undisputed that the mother filed no pleading requesting court-ordered child support for T.S. The focus therefore moves to whether the support issue was tried by implied consent. . . . .The mother’s presentation of her request for child support for T.S. was separate from issues of support for T.A.L. and C.E.L. and was not relevant to other pleaded issues. Notwithstanding the mother’s clear annunciation of her request for an order requiring the father to pay child support for T.S., the father did not object until months after trial during post-trial proceedings leading to the written judgment. Because the issue of the father’s obligation to pay child support for T.S. was tried by implied consent, [*13] the trial court did not abuse its discretion in ordering such support from the father. See Guillory v. Boykins, 442 S.W.3d 682, 691 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (finding the issue of sole managing conservatorship for the father, while not raised by his pleadings, was tried by implied consent and the trial court therefore did not err in appointing him sole managing conservator of the child). The father’s sole issue on appeal is overruled.” In the Interest of T.A.L., Nos. 07-17-00274-CV, 07-17-00275-CV, 2018 Tex. App. LEXIS 6365, at *10-11 (App.—Amarillo Aug. 14, 2018)

You have to make your complaint in a timely fashion:

Evidence: “In her sixth and seventh issues, Mother argues that the trial court abused its discretion by admitting testimony regarding facts that formed the basis of a previous order terminating her parental rights to her twins, that the evidence was irrelevant to the instant case, that it was unfairly prejudicial, and that the trial court erred by denying her motion for new trial alleging these same arguments. Mother contends that testimony regarding her prior drug use and being discharged from an inpatient-treatment [*29] program at a Volunteers of America facility was irrelevant to prove any fact of the current case and was more prejudicial than probative. Mother admitted in her second amended motion for new trial that “[n]o objection to such inquiries was made” by her trial counsel. Because Mother did not object to the complained-of evidence, her complaints are not preserved for our review. See Tex. R. App. P. 33.1(a);” In the Interest of G.H., No. 02-18-00080-CV, 2018 Tex. App. LEXIS 6507, at *28-29 (App.—Fort Worth Aug. 16, 2018)

You must get a ruling on your complaint:

Supersedeas: “To the extent appellant’s motion can be construed as a challenge to the bond amount based on substantial economic harm under Rule 24.2(b) of the Texas Rules of Appellate Procedure, we conclude appellant did not preserve such a challenge in the county court. A county court has continuing jurisdiction to order the amount and type of security or, if circumstances change, to modify the amount or type of security even after its plenary power expires. Tex. R. App. P. 24.3(a). Further, an appellate court reviews a [*4] county court’s determination of whether an appellant is likely to suffer substantial economic harm for an abuse of discretion. See O.C.T.G., L.L.P. v. Laguna Tubular Products Corp., 525 S.W.3d 822, 831 (Tex. App.—Houston [14th Dist.] 2017, op. on motion). We cannot review the county court’s exercise of discretion unless the record demonstrates that a request to reduce the amount of security due to substantial economic harm was presented to the county court and a ruling made thereon. See Law Eng’g & Envtl. Servs., Inc. v. Slosburg Co., 100 S.W.3d 389, 390 (Tex. App.—Houston [1st Dist.] 2002, order). Our record does not show that the county court has ruled on such a request.” Johnson v. Villatoro, No. 14-18-00150-CV, 2018 Tex. App. LEXIS 6350, at *3-4 (App.—Houston [14th Dist.] Aug. 14, 2018)

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

Yours, Steve Hayes

shayes@stevehayeslaw.comwww.stevehayeslaw.com

Error Preservation in Texas Civil Cases, August 13, 2018

August 13, 2018

Dear All:

Here is a list of those things covered in this entry in the blog:

A case in which a party preserved its objection about the trial court’s exclusion of some Google Earth photos

Evidence

A case in which a party preserved an objection to certain witnesses–even though her motion was called a motion in limine

Evidence

You must make your complaint on the record, and it must be timely

Evidence
Evidence

The grounds underlying a complaint raised at trial must comport with the grounds raised on appeal

Attorney’s Fees

Evidence

You have to get a ruling on your complaint

Evidence

Here is a case in which a party preserved its objection about the trial court’s exclusion of some Google Earth photos:

Evidence: “In responding to Mattress Firm’s objections and the trial judge’s questioning, Jones’s counsel described the photos as showing the store, the tube man, and its location. Counsel further stated that the location of the tube man in the photos directly contradicted Mattress Firm’s asserted location. The trial court understood that counsel was “try[ing] to admit [some]thing . . . printed off of Google Earth.” The court also focused on authentication of the photos, stating: “let’s talk about Google Earth. . . . [H]ow can you authenticate this?” The court understood the admissibility [*6] of the photos to be preserved for appeal, stating that “if I’m wrong about [my ruling] I’ll get it right the next time we try the case.” The photos are included in the record, enabling appellate review.

Jones offered a short, factual recitation of what the photos showed and why she intended to introduce them. Further, it is clear from the context that the trial court excluded the photos and understood that the issue was preserved for appeal. Despite not presenting a formal offer of proof, Jones made the substance of the evidence apparent to the trial court and included it in the record. Thus, Jones properly preserved the issue for appeal.“ Jones v. Mattress Firm Holding Corp., 2018 Tex. App. LEXIS 6140, * (Tex. App.–Houston [14th Dist.] Aug. 7, 2018)

Here is a case in which a party preserved an objection to certain witnesses–even though her motion was called a motion in limine:

Evidence: On the other hand, during the course of the hearing on Mother’s motion, the trial court also stated, “If they call an expert, I’ll hear your objection, the request for a hearing outside the presence of the jury at that time.” The trial court also stated that it intended “to hear the objections to the witness at the time, as opposed to . . . addressing a limine at this time.” Based on these statements from the trial court, the Department argues that the trial court merely made a ruling on a motion in limine-which does not preserve error-and [*16] that Mother waived her objections by failing to object to the witnesses at the time they were called. We disagree.

At trial, the Department called the following witnesses, in addition to Mother and Father: (1) Joseph Stephens, (2) Christopher Kitts, (3) Crystal Wrape, (4) Tracy Howell, (5) Andrea Scoggins, (6) Amanda McDonald, and (7) J.K. Mother did not object to Father, Stephens, Wrape, and McDonald at the time they were called to testify. She did object, however, when Kitts, Howell, Scoggins, and J.K. were called to testify. The trial court permitted those four aforementioned witnesses to testify over Mother’s objection. Accordingly, as to Kitts, Howell, Scoggins, and J.K., Mother did preserve error. Under Rule 193.6(a) Mother could not object to her own testimony or to the testimony of Father or Wrape. See Tex. R. Civ. P. 193.6(a), (holding that nonresponding party may not introduce “the testimony of a witness (other than a named party) who was not timely identified”). Thus, the question remaining is whether Mother preserved error as to Stephens’ and McDonald’s testimony.
. . .
It is true that a trial court’s ruling on a motion in limine does not preserve error, and Mother’s objections were raised in a motion entitled “motion [*17] in limine.” See Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.-Texarkana 2000, pet. denied). Nevertheless, as we noted in Texas-Ohio Gas, Inc. v. Mecom, “we acknowledge that motions can be misnamed. Courts should look to the substance of a motion rather than the title to determine its nature. A motion’s substance is to be determined from the body of the instrument and its prayer for relief.” Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 142 (Tex. App.-Texarkana 2000, no pet.) (citations omitted).
. . . .
Considering (1) the substance of her motion, (2) Mother’s verbal request that “[the Department] be precluded from calling any witnesses,” (3) the Department’s information attempting to establish the lack of unfair surprise or prejudice, (4) the manner in which the hearing was conducted, and (5) the trial court’s ruling, Mother’s specific request to strike the witnesses was a motion to exclude the Department’s witnesses rather than a motion in limine.

It is true that the trial court told Mother, “If you have any specific surprise by a specific witness, you can bring that to my attention at the time that the witness is called” and that it intended “to hear the objections to the witness at the time, as opposed to . . . addressing a limine at [that] time.” The trial court also stated, “I’ll hear the objections at the time and [*20] see witness by witness, but I’m not going to grant anything at this time.” Yet, these statements do not change the result. For one thing, that procedure would impermissibly shift the burden of proof from the Department to Mother. As noted above, the exclusion under Rule 193.6 is automatic, and the Department had the burden to establish an exception to the Rule, not Mother. See id.; see also Tex. R. Civ. P. 193.6(b).

Furthermore, Rule 103(b) of the Texas Rules of Evidence states, “Not Needing to Renew an Objection. When the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.” TEX. R. EVID.103(b). Accordingly, having overruled Mother’s objections and having indicated that her objections were preserved by the ruling, no further objections were required to preserve Mother’s objections. Consequently, we find that Mother did not waive her objections to the Department’s witnesses.” In the Interest of D.W.G.K., No. 06-17-00124-CV, 2018 Tex. App. LEXIS 6089, at *14-20 (App.—Texarkana Aug. 6, 2018)

You must make your complaint on the record, and it must be timely:

Evidence: “Second, the record fails to illustrate that F.E. objected to the trial court’s directive that he call his first witness early. And, assuming arguendo that he objected during the bench conference, we can only guess at the basis or grounds for his objection given the absence of a transcription of the bench conference. See In re P.M., No. 02-14-00205-CV, 2014 Tex. App. LEXIS 13947, 2014 WL 8097064, at *32 (Tex. App.—Fort Worth Dec. 31, 2014, pet. denied) (mem. op.) (“[B]ecause Mother did [*10] not ensure that the court reporter recorded the bench conferences during which the objections were discussed, she cannot show us how these rulings constituted bias against her.”). We further note the absence of any written motion to continue the trial within the appellate record. Since HN4 error must be preserved for review through a contemporaneous objection stating the specific grounds underlying the objection, see Tex. R. App. P. 33.1(a); L.H. v. N.H., No. 02-15-00116-CV, 2015 Tex. App. LEXIS 12319, 2015 WL 7820489, at *3 (Tex. App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op.), and the record fails to illustrate either an objection or the grounds underlying it, F.E. also failed to preserve his complaint for review.” In re A.E., No. 02-18-00124-CV, 2018 Tex. App. LEXIS 6300, at *9 (App.—Fort Worth Aug. 9, 2018)

Evidence: “Sparks argues on appeal that he presented credible, uncontradicted testimony and evidence that his monthly income is approximately $3,500 less than it was at the time of the previous support order, he has exhausted all but $15,091 in savings, he owes approximately $2,000 to his attorneys and $41,712 in credit card debt, and he has agreed to pay $750 a month to the mother of his second child.

In support of these claims, Sparks cites liberally to the evidence attached to his motion for rehearing but which was not before the district court. This evidence includes the only documentary support that he depleted his savings to $15,091 and owes $2,000 in legal fees and $41,712 in credit card debt. HN5 “In determining whether a trial court abused its discretion, a reviewing court is generally bound by the record before the trial court at the time its decision was made.” In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding). Sparks asserts the district court should have exercised its discretion under Rule of Civil Procedure 270 to consider the new evidence but he failed to preserve error, if any, by obtaining a ruling on his motion. See Tex. R. App. P. 33.1(a).” Sparks v. Rutkowski, No. 03-17-00452-CV, 2018 Tex. App. LEXIS 6097, at *6 (App.—Austin Aug. 3, 2018)

The grounds underlying a complaint raised at trial must comport with the grounds raised on appeal:

Attorney’s Fees: “F.E. next contends that the trial court abused its discretion in awarding A.D. $45,000 in attorney’s fees for work done through trial. In awarding the sum, the trial court simply assessed the amount found by the jury. F.E. does not question the sufficiency of the evidence underlying the amount given. Instead, he believes the trial court erred because 1) there was no finding that he acted frivolously or in bad faith; 2) there was “no need for payment of attorney’s fees as a means of ‘leveling the playing field'”; 3) the parties had between them no agreement to pay fees; 4) he was not found “guilty of an unreasonable delay or dilatory tactics”; 5) it did not matter that A.D. prevailed in the dispute; 6) the jury’s verdict awarded fees to both parties; and 7) because he was “the responding [*7] party” in the suit, “[t]he chilling [e]ffect of being ha[]led into court and then required to pay attorney fees for the opposing party creates a dangerous precedent” violating Texas’s open courts policy. We overrule the issue.

Complaints about attorney’s fees are subject to the rules of preservation. Dinkins v. Calhoun, No. 02-17-00081-CV, 2018 Tex. App. LEXIS 3519, 2018 WL 2248572, at *8 (Tex. App.—Fort Worth May 17, 2018, no pet.) (mem. op.). One such rule requires that the grounds underlying a complaint raised at trial comport with the grounds raised on appeal. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); In re V.L.A., No. 02-13-00147-CV, 2013 Tex. App. LEXIS 12155, 2013 WL 5434008, at *10 (Tex. App.—Fort Worth Sept. 26, 2013, no pet.) (mem. op.). That rule was breached here.

F.E. filed a motion for new trial. One of the several reasons he urged purportedly entitling him to relief concerned the award of $45,000 in attorney’s fees. He argued that the trial court abused its discretion in awarding them because 1) he was a “respondent” who was “forced to come to court at a time not of his choosing and selection”; 2) the trial court lacked “knowledge of how or exact reasons as to this matter being required for trial other than the dispute between the parties with regard to the primary residency of the minor child”; 3) awarding fees against a respondent “smacks of prejudice”; 4) an award of appellate [*8] attorney’s fees must be conditioned upon an unsuccessful appeal; and 5) interest on appellate attorney’s fees does not begin accruing until the appellate court issues its judgment. That the trial court “made no finding with regard to interest provisions in ordering any attorney’s fees” also was mentioned within the litany of written objections F.E. filed prior to the trial court’s executing its final order.

Comparing the grounds asserted by F.E. at trial with those at bar, we discover that they differ. None mentioned here were encompassed within those uttered below. Consequently, those here were not preserved for review.” In re A.E., No. 02-18-00124-CV, 2018 Tex. App. LEXIS 6300, at *6-8 (App.—Fort Worth Aug. 9, 2018)

Evidence: “As shown above, at trial, Nick made a general objection to the trial court taking judicial notice of the pretrial testimony, rather than a specific objection on the basis that “the testimony from the earlier hearings was not authenticated and entered in evidence.” Furthermore, the record indicates the trial court understood Nick’s objection to be about testimony that had been objected to at the pretrial hearings. To preserve error, a complaint on appeal must comport with the objection made at trial. Rogers v. Dep’t of Family and Prot. Serv., 175 S.W.3d 370, 376 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) (declining to address a complaint on appeal when it did not comport with the objection made at trial); Tex. R. App. P. 33.1(a) (requiring the record to show that a complaint was made to the trial court as a prerequisite to presenting a complaint for appellate [*7] review). Nick’s complaint on appeal that the trial court could not take judicial notice of the pretrial testimony because it was not “authenticated and entered in evidence” does not comport with the objection he made at trial.” In the Interest of N.C.H.-M., No. 04-18-00098-CV, 2018 Tex. App. LEXIS 6191, at *6-7 (App.—San Antonio Aug. 8, 2018)

You have to get a ruling on your complaint:

Evidence: “Sparks argues on appeal that he presented credible, uncontradicted testimony and evidence that his monthly income is approximately $3,500 less than it was at the time of the previous support order, he has exhausted all but $15,091 in savings, he owes approximately $2,000 to his attorneys and $41,712 in credit card debt, and he has agreed to pay $750 a month to the mother of his second child.

In support of these claims, Sparks cites liberally to the evidence attached to his motion for rehearing but which was not before the district court. This evidence includes the only documentary support that he depleted his savings to $15,091 and owes $2,000 in legal fees and $41,712 in credit card debt.  “In determining whether a trial court abused its discretion, a reviewing court is generally bound by the record before the trial court at the time its decision was made.” In re M-I L.L.C., 505 S.W.3d 569, 574 (Tex. 2016) (orig. proceeding). Sparks asserts the district court should have exercised its discretion under Rule of Civil Procedure 270 to consider the new evidence but he failed to preserve error, if any, by obtaining a ruling on his motion. See Tex. R. App. P. 33.1(a).” Sparks v. Rutkowski, No. 03-17-00452-CV, 2018 Tex. App. LEXIS 6097, at *6 (App.—Austin Aug. 3, 2018)

As usual, there were the litany of cases in which parties failed to raised their complaint in the trial court.

I hope this helps.  Y’all take good care.

Yours, Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, August 4, 2018

August 4, 2018

Dear All:

Here is a list of those things covered in this entry in the blog:

A pre-emption argument that challenges a trial court’s subject matter jurisdiction can first be raised on appeal

Pre-emption

A party preserved its complaint that a trial court improperly excluded evidence

Evidence

You have to make your complaint in a timely fashion–certainly before the trial court loses plenary power

Judgment Nunc Pro Tunc

Arguing in the trial court that one statute precludes the other side’s claims does not preserve a complaint that another statute also precludes those claims

Texas Citizen’s Participation Act

You have to comply with the pertinent rules

Affirmative Defense/Summary Judgment

A pre-emption argument that challenges a trial court’s subject matter jurisdiction can first be raised on appeal:

“On appeal, Mometrix for the first time challenges the trial court’s and this [*4] Court’s subject matter jurisdiction. Mometrix argues that LCR’s claim for tortious interference with contract is preempted by federal copyright law and that federal courts have exclusive jurisdiction over the case as one arising under the Copyright Act. See HN1 17 U.S.C. § 301 (providing that Copyright Act preempts all legal or equitable rights that are equivalent to exclusive rights within scope of Copyright Act); 28 U.S.C. § 1338(a) (providing that federal courts have exclusive jurisdiction over action “arising under” Copyright Act). A preemption argument that implicates subject matter jurisdiction—that is, choice of forum rather than merely choice of law—such as Mometrix’s argument here, may be raised for the first time on appeal.Mometrix Media, LLC v. LCR Publ’g, LLC, No. 03-17-00570-CV, 2018 Tex. App. LEXIS 5865, at *3-4 (App.—Austin July 31, 2018)

Here, a party preserved its complaint that a trial court improperly excluded evidence:

Evidence: “Appellees argue that Mega did not preserve error. Appellees contend that the trial court did not exclude Exhibit 9 and therefore Mega failed to preserve any issue for our review as to Exhibit 9. Appellees also argue that Mega “failed to present to the trial court [*8] the same theory of admissibility that it is now making on appeal” as to both exhibits. The record does not support appellees’ assertions.

During a pre-trial hearing, the trial court stated that “[i]n regards to Plaintiff’s Exhibit 10 and 11, the Court is going to exclude those because they are discussing, per [Exhibit] 11, this was a settlement agreement.” The defendants’ attorney then asked, “[A]nd you’re also excluding Exhibit No. 9 and 11? Nine is the discussion regarding the numbers. . . . So that needs to be excluded as well.” The court stated, “So Plaintiff’s 1, 10 and 11.” The reference to Exhibit 1 appears to be either a misstatement or a mistranscription, as the record makes clear that the parties and the court were discussing only Exhibits 9, 10, and 11. Mega’s attorney clarified that “Your Honor has excluded Exhibits 9, 10 and 11,” and then requested that the court accept Exhibits 9, 10, and 11 as an offer of proof, which the trial court accepted. Thus, the record shows that the trial court excluded Exhibits 9 and 10. Tex. R. Evid. 103(a).

Stating the grounds for the offer of proof, Mega’s attorney indicated that Exhibits 9 and 10 represented “balances presented to [Mega’s owner Mody] by the [*9] Defendant Trimcos” and “a memorandum signed by Trimcos . . . by which Trimcos recognized that it was a sum further due to Mega in the amount of $75,622.95.” See Tex. R. Evid. 103(c). These arguments align with Mega’s contentions on appeal. See HN1 Tex. R. Evid. 103(a)(2) (to preserve error regarding a ruling excluding evidence, the substance of the evidence must be made known to the trial court by offer or apparent from the context of the questioning).

We conclude that Mega preserved its complaint regarding the exclusion of Exhibits 9 and 10.” Mega Builders, Inc. v. Bell Tech Enters., No. 14-17-00642-CV, 2018 Tex. App. LEXIS 6014, at *7-9 (App.—Houston [14th Dist.] Aug. 2, 2018)

You have to make your complaint in a timely fashion–certainly before the trial court loses plenary power:

Judgment Nunc Pro Tunc: “Lori does not “substantially disagree” with the “fairly simple” record. Nor does she insist that her requested changes were clerical. Rather, she contends that under sections 6.602 and 153.0071 of the Texas Family Code, she has a right to a judgment that conforms to the MSA. Lori has not cited, nor have we found, any authority supporting the proposition that a trial court otherwise retains jurisdiction beyond its plenary power to make substantive changes to its final judgment and correct judicial errors involving the failure to track terms from an MSA. Although Lori may have been entitled to secure rendition of and any substantive correction of and modification to the judgment in her divorce action in accordance with the MSA while the trial court retained jurisdiction, such entitlement expired with the expiration of the trial court’s plenary power.” In re Marriage of Russell, Nos. 14-17-00618-CV, 14-17-00787-CV, 2018 Tex. App. LEXIS 5874, at *15 (App.—Houston [14th Dist.] July 31, 2018) (footnotes omitted)

Arguing in the trial court that one statute precludes the other side’s claims does not preserve a complaint that another statute also precludes those claims:

Texas Citizen’s Participation Act: “Appellate courts do not consider issues that were not raised in the court below, but parties may construct new arguments on appeal in support of issues properly preserved. Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014). In [*55] this case, the Pivot Plaintiffs generally argued to the trial court that the GTS Defendants’ TCPA motion to dismiss should be denied because (1) the Pivot Plaintiffs’ claims were not based on conduct protected by the terms of the TCPA; (2) alternatively, they carried their burden under the TCPA to establish a prima facie case; (3) the GTS Defendants did not meet the time requirements for filing their motion to dismiss set forth in the TCPA; and (4) their claims fell within a statutory exemption under the TCPA. Here, for the first time on appeal, the Pivot Plaintiffs assert that the TCPA does not apply to at least some of their claims because the claims are instead governed exclusively by a different statute, the CNCA. In other words, the Pivot Plaintiffs’ preemption argument is not that a different case or subpart of the TCPA dictates a different outcome, see Starside Custom Builders, 547 S.W.3d at 896, but that some of their claims are governed by a different body of law altogether. See Entergy Gulf States, Inc. v. Public Util. Comm’n, 173 S.W.3d 199, 210 (Tex. App.—Austin 2005, pet. denied) (noting that preemption argument that affects choice of law can be waived) (citing Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 545 (Tex. 1991) (noting that preemption argument that affects choice of forum rather than choice of law is not waivable and can be raised for first time on appeal)). To preserve [*56] their argument that preemption by the CNCA serves as an alternative basis for denying the GTS Defendants’ motion to dismiss, the Pivot Plaintiffs were required to present the argument to the trial court. Because they did not, we will not consider this argument on appeal.” Grant v. Pivot Tech. Sols., No. 03-17-00289-CV, 2018 Tex. App. LEXIS 6076, at *53-56 (App.—Austin Aug. 3, 2018)

You have to comply with the pertinent rules:

Affirmative Defense/Summary Judgment: “To properly preserve an affirmative defense for purposes of appeal of a summary judgment, a defendant must expressly present that affirmative defense to the trial court in the summary judgment proceeding, whether it be through her own motion for summary judgment and/or in a response to the plaintiff’s motion for summary judgment, and adduce proof supporting that defense. TPS Freight Distribs., Inc. v. Tex. Commerce Bank, 788 S.W.2d 456, 459 (Tex. App.—Fort Worth 1990, writ denied) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677-79 (Tex. 1979)). Absent a record demonstrating that the affirmative defense was properly presented to the trial court in the summary judgment proceeding, the appellant has waived her affirmative defense. Id. In this case, Jourdan did not file her own motion for summary judgment on the affirmative defense of limitations, nor did she file a response to Jacobs’s motion for summary judgment. Jourdan argues on [*14] appeal that she filed a verified answer raising the affirmative defense; however, “merely raising such an affirmative defense in an answer to a petition does not preserve that defense on appeal from a summary judgment in favor of the plaintiff.” Id. HN5 “Pleadings, even if sworn to, do not constitute summary judgment proof.” Id. Thus, we hold Jourdan waived her affirmative defense of limitations.” Jourdan v. Jacobs, No. 04-17-00487-CV, 2018 Tex. App. LEXIS 5938, at *13-14 (App.—San Antonio Aug. 1, 2018)

You have to get a ruling on your complaint–and the trial court responding “Great. Thank you.” is not a ruling:

Jury Charge: “In this case, the record shows the trial court did not rule on appellant’s objections, nor did appellant request a ruling—stating only, “Great. Thank You.” And appellant did not specifically object to the trial court’s failure to submit any of his proposed jury questions or instructions. As a result, appellant did not preserve error regarding his proposed jury submissions. See Tex. R. Civ. P. 274; Burbage, 447 S.W.3d at 256; Thota, 366 S.W.3d at 689. We overrule appellant’s issues seven, eight, nine, ten, eleven, twelve, and thirteen.” Mohamed Ahmed v. Hinga Mbogo, No. 05-17-00457-CV, 2018 Tex. App. LEXIS 5849, at *26 (App.—Dallas July 30, 2018)

Several other cases held that a party did not preserve error because that party failed to make the complaint in the trial court.

All for now.  I hope this helps.

Yours,

Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com