Recent Texas Supreme Court Error Preservation Decisions, 4/20/18

April 20, 2018

Dear All:

Conflicting jury answers, illegality, subpoenas, and damage experts–Oh, my!

The Supreme Court issued several error preservation decisions last week, so I thought I would dedicate this post to those.

So what about preserving a complaint about those conflicting jury answers?

If you want my two cents worth, I would say to continue objecting to conflicting jury answers before the trial court dismisses the jury, and get the trial judge to have the jury continue deliberating. Tex. R. Civ. P. 295. And even though Rule 324 does not list conflicting jury answers as one of the complaints for which a motion for new trial is required, I believe I would still complain about such conflicting answers in some kind of motion for new trial or judgment modification, just because. And the recent multiple, competing, non-majority opinions in Lloyds v. Menchaca are why I say that.

The Supreme Court issued its opinions on rehearing in USAA Tex. Lloyds Co. v. Menchaca a little over a year after its initial opinion in that case. That initial opinion was unanimous, save for Justice Johnson, who did not participate. Like its original opinion, the opinions on rehearing in Menchaca dealt with an insured’s claims against her homeowner’s insurance company concerning damage to her home from Hurricane Ike. USAA Tex. Lloyds Co. v. Menchaca, No. 14-0721, __ WL ___, 2018 Tex. LEXIS 313, *4 (Apr. 13, 2018). Justice Boyd’s opinion, which announced the Court’s judgment, talked about “the clarification we provide today,” and “the benefit of the guidance we have provided today regarding the preservation of such error.” Menchaca,*49, *83. Those statements must have survived artifacts from an earlier draft of the opinion, because it’s hard to see how much error preservation clarification or guidance comes from three competing opinions, none of which drew a majority concerning certain error preservation issues, and which two Justices were not part of. If anything, this case shows the need for revising Rule 295, which governs the correction of verdicts, and particularly incomplete, nonresponsive, and conflicting jury answers.

The error preservation issue here dealt with conflicting jury answers:

  •  The jury answered “No” when asked if the insurance company “failed ‘to comply with the terms of the insurance policy with respect to the [plaintiff’s] claim for damages.’” Menchaca, at *5.
  • But the jury also found that the insurance company engaged in various unfair or deceptive practices, including refusing to pay a claim without conducting a reasonable investigation with respect to that claim; the jury also found the damages for that statutory violation. The trial court instructed the jury that the damages were “the difference, if any, between the amount [the insurance company] should have paid . . . and the amount that was actually paid.” Menchaca, *5.

All justices who wrote or joined opinions in Menchaca did agree on some error preservation aspects about these conflicting answers. For example, Justice Boyd, in the part of his opinion joined by all Justices but Justice Johnson (who did not participate) and Justice Blacklock (who concurred in the judgment but did not join with any opinion), held that the Court “unanimously reaffirm[ed]” the holding “in our first opinion that the trial court erred in this case by disregarding the jury’s answer to Question 1, in which the jury failed to find that the insurer failed to comply with its obligations under the policy.” Menchaca, *2. Chief Justice Hecht pointed out, in his concurring opinion, that the “Court [also] unanimously disagrees” with the parties’ contentions that the jury answers did not conflict. Menchaca, *83-84.

But what’s where things start to unravel, from a standpoint of how and when a party preserves error concerning conflicting jury answers, and which party must do so. Four Justices–Justice Boyd, joined by Chief Justice Hecht, Justice Lehrmann, and Justice Devine–held that the irreconcilable conflict in the jury answers was fatal. These four Justices reached that conclusion because the jury answer about compliance with the policy, standing alone, would require a judgment in favor of the insurance company, while the answers to the statutory violation and damage question, without the policy compliance question, would require a judgment in favor of plaintiff. Menchaca, *61-62.

Stating that “neither party has objected to the conflict” in the jury answers, Justices Boyd, Lehrmann, and Devine, without Chief Justice Hecht, provided a lengthy historical discussion about whether conflicting jury answers constituted fundamental error; they concluded that “the fatal conflict in the jury’s verdict in this case does not constitute fundamental error, and as a result, we cannot consider that conflict unless the error was properly preserved.” Menchaca, *61, 69. After another lengthy discussion of Rule 295, those three Justices also held that “to preserve error based on fatally conflicting jury answers, parties must raise that objection before the trial court discharges the jury.” Menchaca, *74. Finally, those three Justices held that, since the plaintiff’s failure to prevail on her contract claim did not automatically negate the findings on her statutory claim, “[w]e are thus left with a judgment based on fatally conflicting jury answers, but since neither party preserved that error, we cannot consider the conflict as a basis for reversing the trial court’s judgment.” Menchaca, *80. Instead of rendering judgment for the plaintiff, though, the Boyd-Lehrmann-Devine Triumvirate remanded the case to the trial court for a new trial in the interest of justice, “[i]n light of the parties’ obvious and understandable confusion over our relevant precedent and the effect of that confusion on their arguments in this case, as well as our clarification of the requirements to preserve error based on conflicting jury answers.” Menchaca, *81-82.

Chief Justice Hecht, in his solo concurrence, disagreed that an objection to the conflicting jury answers here was necessary “for the reasons given by Justice Green in his dissent,” but agreed with the remand and retrial because “a retrial is the only way to correct the trial court’s error” in rendering judgment on fatally conflicting jury answers. Menchaca, *84-85.

Justice Green, in a dissent joined by Justices Guzman and Brown, on the other hand, would render judgment for the insurance company because the plaintiff failed to obtain an affirmative finding on her contract claim, which was “requisite . . . to recover policy benefits for a violation of the Texas Insurance Code.” Menchaca, *86. Joined by Chief Justice Hecht, Justice Guzman, and Justice Brown–a plurality, as Justice Green pointed out–Justice Green pointed out that while “a party should object to conflicting answers before the trial court dismisses the jury,” the “absence of such an objection . . . should not prohibit us from reaching the issue of irreconcilable conflicts in jury findings.”. Menchaca, *95-96. Justice Green reached this conclusion based on Rule 295 saying that “‘[i]f [a] purported verdict is defective, the court may” but is not required to “direct it to be reformed,’” and both the Rule and the Rule Commentary “simply mandates written instructions in the event that the court decides to have the jury deliberate further to reform the verdict.” Menchaca, *96.

Justice Green also pointed out that plaintiff’s counsel “raised the possibility of conflicting answers before the jury was dismissed, attempting to argue that any conflicts would not be irreconcilable,” but discussions with the trial court showed that “the trial court and both parties were satisfied that further deliberations were unnecessary.” Menchaca, *101-102. Put another way, the Green plurality noted that “the trial court here practically invited the parties to object before the jury was dismissed . . . . Despite Menchaca’s counsel noting a conflict in the jury’s answers, neither party objected because they each believed they had won . . . [T]hat should not prevent us from considering whether the verdict can support a judgment in the plaintiff’s favor.” Menchaca, *107. “Under these circumstances,” the Green plurality “would hold that the appellate court is not prohibited from considering whether a judgment on the verdict can stand.” Menchaca, *102. Justice Green also noted:

Although I do not believe our preservation requirements prevent us from ruling in USAA’s favor or even from considering the issue of conflicting jury answers in this case, I do believe that USAA’s post-verdict motions [a motion for judgment, and a subsequent motion to alter or amend the judgment and motion for new trial] were sufficient “to bring this question [of conflicting answers] to the trial court’s attention” and thus preserved error.

Menchaca, *105. Justices Green, Guzman, and Brown would render a take nothing judgment for the insurance company defendant.

Here is a link to table I put together to try to correlate the various holdings.  180420  I hope this is easier for you to parse through than it was for me.

A contract’s illegality is an affirmative defense which must be raised in the trial court–not an impediment to a party’s standing, which is jurisdictional and can be raised at any time.

In another recent opinion, the Supreme Court held that “illegality [of a contract] is an affirmative defense to a claim [which “forecloses its enforcement regardless of whether it has been blessed by an arbitrator’], not an impediment to a party’s standing to assert it. Tex. R. Civ. P. 94.” Jefferson Cty. v. Jefferson Cty. Constables Ass’n, No. 16-0498, 2018 Tex. LEXIS 314, at *9-10 (Apr. 13, 2018). As an affirmative defense, the Court held that illegality must be raised in the trial court. Id., at *12. Having said that, the Court went ahead and addressed the illegality of the contract because “ both parties have fully briefed and argued the merits of the issue here. Further, the Constables Association does not ask us to resolve the question on waiver grounds and concedes that its general collective bargaining rights depend on the deputy constables’ status as police officers under the Act. For these reasons, and because the issue is of continuing importance to our jurisprudence, we will address it.” Id., at *12. Justice Boyd, joined by Justice Johnson, dissented on other grounds. Jefferson Cty, at *30-31.

You’ve not waived a complaint about the new subpoena because you didn’t object to its withdrawn predecessor.

A failure to object to an initial subpoena, which is cancelled and then reissued, does not waive an objection to the reissued subpoena. In re Garza, No. 17-0395, 2018 Tex. LEXIS 315, at *11-12 (Apr. 13, 2018)

The Court provided an example of successfully preserving a complaint about the opinion of a damage expert which was based on an unenforceable oral agreement.

In Hill v. Shamoun & Norman, the Court held that a “motion for directed verdict and renewed motion for directed verdict” which “argued . . . that S&N’s only damages evidence was the oral agreement and the statute of frauds bars recovery based on the oral agreement” preserves a “legal sufficiency challenge” such as the one here, to wit: “that the value of the alleged unenforceable oral contingent-fee agreement between Hill and Shamoun cannot be given any legal weight, thus prohibiting consideration of Sayles’s expert opinion, which relied on the terms of that agreement.” Hill v. Shamoun & Norman, LLP, No. 16-0107, 2018 Tex. LEXIS 309, at *25 n.7 (Apr. 13, 2018)

I’ll put recent error preservation decisions from the court of appeals in another blog post.  As always, I hope this helps.

Yours, Steve Hayes


Error Preservation in Texas Civil Cases, March 31, 2018

March 31, 2018

Dear All:

The Supreme Court weighed in on error preservation recently in a summary judgment context in a back-handed kind of way, holding that the failure of a summary judgment movant to attach deeds to its motion “was not error at all,” because 166a(c)  “require[s] a trial court to grant a summary-judgment motion if the evidence ‘on file at the time of the hearing, . . . ” establishes that the movant is ‘entitled to judgment as a matter of law,'” and the pertinent deeds were on file.  Here, the deeds had previously been admitted in evidence at a temporary injunction hearing[and were clearly filed with the clerk that same day], the motion “expressly ‘referenced and specified’ the injunction-hearing transcript and exhibits ‘as evidence in support of’ the motion,” at the “summary-judgment hearing, the trial court judge had the temporary-injunction transcript-including the deeds and other exhibits-in front of him, reviewed the deeds, and discussed them with counsel, including [non-movant’s] counsel, who never . . . objected on the ground that the [movants’ had not re-filed the deed as attachments to their summary judgment motion.”  Lance v. Judith & Terry, No. 16-0323, 2018 Tex. LEXIS 246, at *15-18 (Mar. 23, 2018)

The following case which has a compilation of many examples of formal deficiencies of affidavits–which you have to object to in the trial court–and substantive objections, which you can raise for the first time on appeal:

  • Affidavit: “Generally, to preserve an objection [*14]  for appellate review, the trial court must either make an express or implicit ruling. Tex. R. App. P. 33.1. However, in the context of affidavits, some defects may be raised for the first time on appeal. . . . Defects in affidavits fall into two categories: defects of substance and defects of form. . . . .  “A defect is substantive if the evidence is incompetent, and it is formal if the evidence is competent but inadmissible.” . . . . Objections to substantive defects are never waived, and they may be raised for the first time on appeal because incompetent evidence “cannot be considered under any circumstances.” . . . . UTHealth’s contentions that some statements in the affidavits were irrelevant, speculative, conclusory, or otherwise without factual support are objections to substantive defects. See Green, 1 S.W.3d at 130; McMahan, 108 S.W.3d at 498. UTHealth specifically challenged (1) the nurses’ statements that Riley was bullying and targeting people (conclusory), (2) a reference to nurse Marsha Urbina as “an older nurse” (relevance), (3) allegations in the nurses’ affidavits regarding Riley’s and Smith’s treatment of Sanders on April 15, 2014 (speculation and relevance to adverse employment action), (4) allegations in Perkins’s and Hartranft’s affidavits about Dr. Tyson’s investigation conducted on May 30, 2014 (conclusory), and [*17]  (5) allegations in the nurses’ affidavits regarding the June 12, 2014 firing of Perkins and Hartranft’s July 9, 2014 resignation (relevance to Carver’s case).”  UT Health Sci. Ctr.-Houston v. Carver, No. 01-16-01010-CV, 2018 Tex. App. LEXIS 2161, at *13-17 (App.—Houston [1st Dist.] Mar. 27, 2018)

You don’t waive your right to challenge a severance by failing to file a motion to transfer venue:

  • Severance:  “Moreover, Johnson’s motion addresses his complaints about the trial court’s severance orders, and he did not ask the trial court to revisit its decision on venue. While Johnson failed to file a timely motion to transfer,  nothing in Rule 86, which provides that an objection to improper venue is waived if not made by written motion, states that a party also waives all complaints regarding an improper severance. See Tex. R. Civ. P. 86.”  In re Johnson, No. 09-18-00064-CV, 2018 Tex. App. LEXIS 2048, at *14-15 (App.-Beaumont Mar. 22, 2018)

There are some things you can raise for the first time on appeal—such as the fact that the court of appeals cannot affirm a summary judgment on a ground not raised in the motion for summary judgment:

  • Summary Judgment:  “A summary-judgment movant may try an issue raised in the nonmovant’s response by consent and thus waive the movant’s objection that the nonmovant was required to raise the issue in the nonmovant’s pleading as well as in its summary-judgment response. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam). But, a non-movant’s failure to object to the movant raising an argument somewhere other than in the summary-judgment motion does not allow an appellate court to affirm the summary judgment based on that argument [*24]  if the movant failed to expressly present the argument in the summary-judgment motion. See Nat’l City Bank of Indiana, 401 S.W.3d at 882.  We may not affirm the trial court’s granting of the First Motion on the stranger-to-title ground because the Sandel Parties did not expressly present that ground in the First Motion. As discussed above, the trial court erred in granting the First Motion on each of the grounds the Sandel Parties expressly presented in the First Motion. Thus, we conclude the trial court erred in granting the First Motion and declaring that the Royalty Interest “is of no legal force nor effect, resulting in [Armour], its successors and assigns having no claim to any rights otherwise evidenced by [the Royalty].””  Armour Pipe Line Co. v. Sandel Energy, Inc., No. 14-16-00490-CV, 2018 Tex. App. LEXIS 2209, at *23-24 (App.—Houston [14th Dist.] Mar. 28, 2018)

For those of you who work on parental right termination cases, there are several courts which hold that the failure to appoint an attorney ad litem for the child can be raised for the first time  on appeal:

  • Attorney Ad Litem:  “Father did not object before the trial court regarding its failure to appoint an attorney ad litem or amicus attorney for the child. Our rules of appellate procedure require that, for error to be preserved for appellate review, the complaining party must have made an objection to the trial court and the trial court must have either ruled on the objection or refused to issue a ruling, and the complaining party objected to the refusal. SeeTex. R. App. P. 33.1. However, several courts have concluded that a trial court’s failure to appoint an attorney ad [*5]  litem or amicus attorney for a child in a private termination case may be raised for the first time on appeal. See In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.-Amarillo 2010, no pet.); Turner v. Lutz, 654 S.W.2d 57, 58 (Tex. App.-Austin 1983, no pet.); Arnold v. Caillier, 628 S.W.2d 468, 469 (Tex. App.-Beaumont 1981, no pet.); see also In re D.W., No. 04-05-00927-CV, 2006 Tex. App. LEXIS 7005, 2006 WL 2263907, at *1 (Tex. App.-San Antonio Aug. 9, 2006, no pet.) (Lopez, C.J., dissenting) (dissenting on other grounds, but recognizing that failure to appoint an ad litem for a child may be raised for the first time on appeal); 40A Tex. Jur. 3d Family Law § 1897 (noting that, despite preservation of error rules, a trial court’s failure to comply with Tex. Fam. Code. § 107.021(a-1) may be raised for the first time on appeal).  “Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit from the parent.” In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, we must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. Given the constitutional interests at stake in termination proceedings, the important role of amicus and ad litem attorneys in termination proceedings, and the mandatory nature of Section 107.021(a-1), we conclude a complaining party may raise a trial court’s failure to appoint an attorney ad litem or amicus attorney when required by Section 107.021(a-1) for the first time on appeal.”  In re D.M.O., No. 04-17-00290-CV, 2018 Tex. App. LEXIS 1992, at *4-5 (App.-San Antonio Mar. 21, 2018)

When your complaints on appeal comport with those you raise on appeal, you have preserved them:

  • Healthcare Liability:  “Mrs. Butler argues that Appellants’ only objection at the trial court level was to her fourth theory of liability, which is that Appellants improperly administered antipsychotic medications to Mr. Butler. Thus, Mrs. Butler argues that Appellants waived all complaints regarding her first three theories of liability, which are that Appellants (1) failed to ensure Mr. Butler remained well hydrated, (2) failed to ensure Mr. Butler was not over-sedated, and (3) improperly physically and chemically restrained Mr. Butler. A review of the record indicates that Appellants’ objections and arguments to the trial court sufficiently comport with the arguments they make on appeal, and we conclude that Mrs. Butler’s waiver argument is without merit. SeeTex. R. App. P. 33.1(a)(1)(A).”  Oceans Behavioral Healthcare of Longview v. Butler, No. 12-17-00297-CV, 2018 Tex. App. LEXIS 2017, at *2 n.1 (App.-Tyler Mar. 21, 2018)

You have to comply with the pertinent rules:

  • Continuance:  “In his first issue, Morris argues the trial court erred in denying his Request for Rescheduling.  Texas Rule of Civil Procedure 251 governs motions for continuance and provides that a motion shall not be granted except for sufficient cause supported by affidavit, consent of the parties, or by operation of law. Tex. R. Civ. P. 251; see In re A.M., 418 S.W.3d 830, 838 (Tex. App.—Dallas 2013, no pet.); Strong v. Strong, 350 S.W.3d 759, 762 (Tex. App.—Dallas 2011, pet. denied). Morris’s Request for Rescheduling was not supported by affidavit, Southern Journeys did not consent to a continuance, and Morris has not explained how a continuance was required by operation of law. Accordingly, Morris has failed to preserve any error from the trial court’s denial of his request. See In re A.M., 418 S.W.3d at 838; Strong, 350 S.W.3d at 762. We overrule his first issue.”  Morris v. S. Journeys of Tex., No. 05-17-00445-CV, 2018 Tex. App. LEXIS 2172, at *4 (App.—Dallas Mar. 27, 2018)
  • Evidence:  “By his third issue, Willmore contends that “[i]t was harmful error for the [j]udge to refuse to allow [him] to put on evidence of his reimbursement claim[.]” However, as with his first issue, Willmore has failed to provide us with a sufficient trial record demonstrating compliance with the steps listed above. See Ulogo, 177 S.W.3d at 502. Specifically, we have no record of the precise evidence Willmore sought to admit or what evidence was refused in regard to his reimbursement claim. See id. At trial, Willmore referenced a “CD” in regard to his reimbursement claim, but he failed to make an offer of proof or otherwise include this evidence in the appellate record. We conclude that Willmore failed to preserve his third issue for appellate review. See Tex. R. App. P. 33.1.”  Willmore v. Alcover, No. 13-16-00180-CV, 2018 Tex. App. LEXIS 2044, at *5 (App.-Corpus Christi Mar. 22, 2018)
  • Legal Sufficiency:  “Rule 324 of the Texas Rule of Civil Procedure requires a motion for new trial to preserve a complaint of factual sufficiency of the evidence to support a jury finding. Tex. R. Civ. P. 324(b)(2), (3). In a jury trial, a legal sufficiency issue must be preserved by filing one of the following in the trial court: a motion for instructed verdict; a motion for judgment notwithstanding the verdict; an objection to the submission of the question to the jury; a motion to disregard the jury’s answer to a vital fact question; or a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); In the Interest of T.L.P., No. 09-13-00220-CV, 2013 Tex. App. LEXIS 13513, 2013 WL 5874630, at *2-3 (Tex. App.-Beaumont Oct. 31, 2013, no pet.) (mem. op.). The record shows that Susan failed to file the required motions and objections to preserve her legal and factual sufficiency complaints. See Tex. R. Civ. P. 324(b)(2), (3);”  In re A.B., No. 09-17-00365-CV, 2018 Tex. App. LEXIS 2052, at *4 (App.-Beaumont Mar. 22, 2018)
  • Summary Judgment:  “Because the Rahmans did not file a written response or answer to Foster’s motion for summary judgment and have not raised a legal sufficiency argument on appeal, the Rahmans have presented nothing for this Court to review on appeal. SeeTex. R. Civ. P. 166a(c);”  Rahman v. Foster, No. 05-16-01042-CV, 2018 Tex. App. LEXIS 1966, at *6 (App.-Dallas Mar. 19, 2018)
  • Summary Judgment:  “And although Steven filed a motion for new trial, “a party who fails to expressly present to the trial court any written response in opposition to a motion for summary judgment waives the right to raise any arguments or issues post-judgment.” Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008); see Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (concluding party waived issue in opposition to summary judgment when the party asserted the issue for the first time in a motion for new trial). . . . With respect to one issue—issue six—Steven argues on appeal that: APPELLANT PRESERVED THE ISSUE OF NOT HAVING DEPOSITIONS AT SUMMARY JUDGMENT HEARING, WHEN THE TRIAL JUDGE STATED, [*4]  “YOU SAID THAT YOU HAD TWO INDIVIDUALS THAT YOU WISHED TO DEPOSE THAT WILL ESTABLISH YOUR CLAIM OF DEFAMATION. MY QUESTION IS: WHY DID YOU NOT TAKE THOSE DEPOSITIONS?” (RR: 5, 6, 7) THEREFORE, THE TRIAL COURT SHOULD HAVE ALLOWED MORE TIME TO GATHER DISCOVERY.  But reference to the trial court’s statement does not show that appellant “expressly presented” the issue regarding the absence of depositions to the trial court “by written motion, answer or other response[.]” As a result, it may not be considered on appeal as a ground for reversal. See Tex. R. Civ. P. 166a(c).”  Sims v. Sims, No. 05-16-00984-CV, 2018 Tex. App. LEXIS 2171, at *3-4 (App.—Dallas Mar. 27, 2018)

As usual, a whole slew of cases discussed issues which parties failed to raise at that trial court level, but I won’t burden you with those.

I hope this helps. Y’all take care.


Steve Hayes

Error Preservation in Texas Civil Cases, 3/17/18

March 17, 2018

Dear All:

This was sort of a light two weeks.  Perhaps chalk that up to Spring Break.

When you timely object to the evidence and get a ruling, you have preserved the objection you made:

  • Evidence: “Nugent and CAO, Inc. timely objected to the introduction of evidence of Nugent’s prior conviction. When the estate offered evidence of Nugent’s prior conviction at trial, appellants’ counsel immediately objected on the grounds that the conviction was “more than ten years old and cannot be used as evidence.” The trial court [*25] permitted the estate to admit evidence of Nugent’s 2004 conviction and to engage in limited questioning of witnesses on this issue. These actions adequately preserved the evidentiary issue for appeal. See Tex. R. App. P. 33.1;” Nugent v. Estate of Ellickson, No. 14-16-00839-CV, 2018 Tex. App. LEXIS 1735, at *24-25 (App.—Houston [14th Dist.] Mar. 8, 2018)
  • Dismissal for Want of Prosecution: “We first address A.J.’s Steel’s contention that mandamus relief should be denied because relators did not argue that the case should be dismissed due to “abandonment” to the trial court and that they raise this argument for the first time in this original proceeding. A.J.’s Steel thus argues that this argument for dismissal was not preserved. See generally Tex. R. App. P. 33.1; . . . .A.J.’s Steel contends that the trial court originally dismissed the case because its counsel failed to appear at the dismissal hearing and because the trial court [*16] accepted its argument that the absence was not intentional or the result of conscious indifference, therefore reinstating the case. We disagree with A.J.’s Steel’s view of the record. Relators repeatedly argued to the trial court that the case was “not disposed of within [the] time standards promulgated by the Supreme Court” and invoked the trial court’s inherent authority to dismiss the case. SeeTex. R. Civ. P. 165a(2); Villarreal, 994 S.W.2d at 630. Relators expressly made this argument on September 10, 2015 in their original motion to dismiss, on August 28, 2017 in their response to A.J.’s Steel’s motion to reconsider, and on October 11, 2017 in oral argument at the hearing on A.J.’s Steel’s motion to reconsider. In fact, the thrust of counsel for relators’ argument at the hearing was the failure to prosecute the case. Accordingly, our review of this matter is not limited to grounds for dismissal pertaining to A.J.’s Steel’s failure to appear at the dismissal hearing. SeeTex. R. Civ. P. 165a(1).” In re Trane U.S. Inc., No. 13-18-00008-CV, 2018 Tex. App. LEXIS 1682, at *15-16 (App.—Corpus Christi Mar. 6, 2018)

You have to comply with other pertinent rules:

  • Evidence: “In her second appellate issue, Debra asserts that the trial court erred in denying Debra’s request that the amicus attorney testify as a fact witness. An amicus attorney appointed to assist the court has various duties as provided for in Section 107.003 of the Texas Family Code. See Tex. Fam. Code Ann. § 107.003 (West Supp. 2017). However, section 107.007(a)(4) of the Texas Family Code provides that an amicus attorney is prohibited from testifying in court except as otherwise authorized by Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. Id. § 107.007(a)(4) (West 2014). We find nothing in the record before us indicating that the Rule 3.08 exception applies. At trial and on appeal, Debra did not argue that Rule 3.08 authorized the amicus attorney to testify in the present case, and Debra made no offer of proof at trial as to what she believed the amicus attorney would have testified to or how the trial court’s failure to call the amicus attorney to testify adversely affected her case. See Tex. Disciplinary Rules Prof’l Conduct R. 3.08, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013); Tex. R. App. P. 33.1.” Jackson v. Jackson, No. 09-16-00189-CV, 2018 Tex. App. LEXIS 1908, at *2 (App.—Beaumont Mar. 15, 2018)

Your complaint must be timely–and sometimes accompanied by a running objection or recurring objections:

  • Evidence: “Initially, we observe that J.H. failed to preserve error on the admission of this evidence. Although counsel objected when the Department first asked J.H. if he had been placed on deferred adjudication for aggravated sexual assault in 1999, counsel did not obtain a running objection or subsequently object when the Department later offered into evidence the documents pertaining to that offense, including a copy of the indictment, the 1999 judgment placing J.H. on deferred adjudication, and the 2001 judgment adjudicating guilt. Instead, counsel stated that he had “no objection” when the district court admitted the exhibit into evidence. Accordingly, the error, if any, in admitting this evidence was ultimately waived. n. 12 n. 12 See Tex. R. App. P. 33.1(a); Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235-36 (Tex. 2007); see also Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (“The general rule is error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection.”).”A. B. & J. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00658-CV, 2018 Tex. App. LEXIS 1790, at *8 n.12 (App.—Austin Mar. 9, 2018)
  • Jury Charge: “. . . before the jury charge was submitted, Mara asserted neither a due process complaint nor any complaint that Omar’s best interest should be decided by a separate question. Instead, these arguments were made for the first time in a motion for new trial. However, “an objection to a jury charge in a motion for new trial is untimely.” In re N.A.L., No. 04-13-00159-CV, 2013 WL 4500633, at *4 (Tex. App.—San Antonio Aug. 21, 2013, no pet.) (mem. op.) (citing Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 627-28 (Tex. App.—Dallas 2004, pet. denied)). Thus, “failure to raise a complaint at trial to a jury charge waives review of that complaint on appeal.” In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (citing Tex. R. App. P. 33.1; Tex. R. Civ. P. 274). Because Mara’s due process argument was not raised prior to the submission of the trial court’s charge, we cannot review it. See id. at 348-55 (reversing a court of appeals’ decision that the trial court’s broad form submission violated a parent’s due process right to have at least ten jurors agree on statutory grounds supporting termination because the matter was not raised at trial).” O.T., No. 06-17-00114-CV, 2018 Tex. App. LEXIS 1791, at *4-6 (App.—Texarkana Mar. 9, 2018)

There were eight cases which held parties did not preserve error because they did not raise their complaints at trial.  I won’t burden this report with those.

I hope this helps. Y’all take care.


Steve Hayes

Error Preservation in Texas Civil Cases, March 3, 2018

March 2, 2018

Dear All:

The Supreme Court weighed in on error preservation a couple of times in the last two weeks.

In one case, the Supreme Court reminded us that some things can be raised for the first time on appeal–like whether a court lacked subject matter jurisdiction because of an improper severance:

  • Jurisdiction: “Morello next argues that the trial court’s improper severance of the case against him from the one against White Lion deprived the court of appeals of jurisdiction. Morello also asserts that the severance resulted in two judgments based on identical theories of liability and facts and that such result violates his constitutional rights to equal protection and due course of law by imposing excessive fines leading to, essentially, a double recovery for the State. Although the court of appeals did not reach these issues, in the interest of judicial economy, we will consider them instead of remanding them to the court of appeals. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012) (“The court of appeals did not address the Hospital’s claim of immunity. Rather than remanding the case to the court of appeals for it to do so, however, we address the issue in the interest of judicial economy.”). In regard to Morello’s first [*18] contention—that improper severance deprived the court of appeals of jurisdiction to consider his appeal—he references Dalisa, Inc. v. Bradford, 81 S.W.3d 876 (Tex. App.—Austin 2002, no pet.). There, the court of appeals held that because the claims had been improperly severed, the resulting judgments were interlocutory and not final. Id. at 882. Because the appeal was from an interlocutory order, the court dismissed it for want of jurisdiction. Id. The State first claims Morello waived any objection to the severance by failing to assert the objection below. But challenges to lack of subject matter jurisdiction may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).” State v. Morello, No. 16-0457, 2018 Tex. LEXIS 169, at *17-18 (Feb. 23, 2018)

Here are a few cases–including a Supreme Court opinion involving an evidentiary issue–in which parties preserved their complaints–one preserved a no evidence complaint through a motion jnov, and one preserved an argument that the judgment improperly excluded post-judgment interest by filing a motion for entry of judgment with an attached judgment which included such interest:

  • Evidence: “At trial, Diamond offered the video on three separate occasions, both for impeachment and as substantive evidence regarding Williams’s pain and physical abilities. N. 5 N. 5. Diamond’s arguments in this appeal focus on the substantive as opposed to impeachment value of the video. Williams argues Diamond offered the video at trial only for impeachment purposes and thus has not preserved the issue presented. The context, including reference back to limine arguments, shows Diamond offered the evidence at trial for both purposes.” Diamond Offshore Servs. v. Williams, No. 16-0434, 2018 Tex. LEXIS 186, at *7 n.5 (Mar. 2, 2018)
  • Post-judgment interest: “METRO’s argument that Brooks waived her claim for post-judgment interest is without merit. As an initial matter, post-judgment interest accrues automatically. Hot-Hed, Inc., 333 S.W.3d at 735. However, Brooks preserved her complaint that the judgment improperly excluded post-judgment interest by filing a motion for entry of [*14] judgment with an attached proposed judgment that included an award of post-judgment interest.” Metro. Transit Auth. of Harris Cty. v. Brooks, No. 01-16-00158-CV, 2018 Tex. App. LEXIS 1418, at *13-14 (App.—Houston [1st Dist.] Feb. 22, 2018)
  • Legal Insufficiency: “Sunesara contends that Sohani and Virani failed to preserve for appellate review their complaint that no written record exists demonstrating Sunesara’s contributions to the LLCs or demonstrating that he is entitled to one-third of the profits because they did not object to the jury charge and they did not move for a directed verdict. . . . Here, the jury determined that Sunesara was a member of the LLCs and entitled to one-third of the profits from each of the LLCs. Sohani and Virani moved for JNOV, asserting that the evidence conclusively negated Sunesara’s right to a judgment declaring him entitled to one-third of the profits of the LLCs. They argued that Sunesara failed to present any evidence that the books and records of the LLCs showed that he was entitled to one-third of the profits, as required by Business Organizations code section 101.201 to establish a right to profits. Sohani and Virani thus presented a legal argument that would negate Sunesara’s right to a declaration that he was entitled to one-third of the profits of the LLCs. . . . By raising this argument in a motion for JNOV, Sohani and Virani properly preserved this complaint for appellate review.” Sohani v. Sunesara, No. 01-16-00460-CV, 2018 Tex. App. LEXIS 1587, at *27-28 (App.—Houston [1st Dist.] Mar. 1, 2018)

You have to comply with the pertinent rules:

  • Affirmative Defense: “Foster next argues that the evidence is insufficient to show that Chase disbursed the loan funds because there is not a cancelled check in evidence. As discussed above, the evidence shows that Chase disbursed $25,000.00 on Foster’s behalf. To the extent that Foster claims a failure of consideration, such is an affirmative defense that is waived if not pled. SeeTex. R. App. P. 33.1; TEX. R. CIV. P. 94 (providing that “failure of consideration” constitutes affirmative defense that must be specifically pleaded). Because Foster did [*27] not plead an affirmative defense of failure of consideration, the issue is waived. DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34, 48 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that affirmative defenses not affirmatively pled are waived).” Foster v. Nat’l Collegiate Student Loan Tr. 2007-4, No. 01-17-00253-CV, 2018 Tex. App. LEXIS 1606, at *26-27 (App.—Houston [1st Dist.] Mar. 1, 2018)
  • Jury Charge: “Sarfo, however, failed to preserve this issue for our review. “Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.” Tex. R. Civ. P. 278; see also Tex. R. App. P. 33.1(a), 44.1(a)(1). “A request by either party for any questions, definitions, or instructions shall be made separate and apart from such party’s objections to the court’s charge.” Tex. R. Civ. P. 273. Sarfo did not prepare a draft jury charge or otherwise submit proposed definitions or instructions to the district court. Thus, he did not preserve this issue for our review.Sarfo v. Comm’n for Lawyer Discipline, No. 03-16-00554-CV, 2018 Tex. App. LEXIS 1387, at *19 (App.—Austin Feb. 22, 2018)

Your complaint must be timely, and the record has to reveal the basis for your complaint:

  • Evidence: “Although the record indicates that Sohani and Virani objected to Exhibit 17, the record does not contain the basis for this objection, which was discussed at a bench conference off the record. The record therefore does not reflect whether Sohani and Virani objected to Exhibit 17 on [*38] the basis that it should have been excluded because Sunesara did not timely disclose it during discovery. . . . We cannot conclude from the record before us that Sohani and Virani objected to these three exhibits on the basis that Sunesara did not timely disclose the exhibits until their motion for new trial. We conclude that because Sohani and Virani did not object to Exhibits 8 and 21 at the times Sunesara offered these exhibits, because the basis for their objection to Exhibit 17 was not stated on the record, and because they waited to object to these three exhibits on the basis of the alleged untimeliness of their disclosure until a motion for new trial, Sohani and Virani did not preserve their complaint that the trial court erroneously admitted these three exhibits for appellate review. SeeTex. R. App. P. 33.1(a);” Sohani v. Sunesara, No. 01-16-00460-CV, 2018 Tex. App. LEXIS 1587, at *37-38 (App.—Houston [1st Dist.] Mar. 1, 2018)
  • Summary Judgment: “Appellants assert that the limitations period applicable to their claims was tolled by the number of days Bell was absent from the state. See Tex. Civ. Prac. & Rem. Code Ann. § 16.063. Appellants did not assert this argument in their summary judgment response or at the hearing held on Bell’s motion. Appellants instead waited until their motion [*11] for new trial to raise the issue of statutory tolling. This does not preserve the issue for appellate review. See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797-98 (Tex. 2008) (per curiam) (argument first raised by nonmovant in post-judgment filing did not preserve argument for appeal); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (party waived reliance on argument that it asserted for first time in motion for new trial).” Harris v. Bell, No. 14-16-00829-CV, 2018 Tex. App. LEXIS 1491, at *10-11 (App.—Houston [14th Dist.] Feb. 27, 2018)

You have to obtain a ruling-and you cannot count on the implied ruling safe harbor of Rule 33.1 coming into play:

  • Discovery: “The investigation reports do not show TDCJ’s fault. The fact that TDCJ investigated Cisneros’s accident does not constitute subjective awareness on the part of TDCJ that its fault produced or contributed to Cisneros’s injury. See id. at 347-48. Indeed, the results of TDCJ’s investigation indicated Cisneros, not TDCJ, was responsible for the accident. Cisneros further argues that this court should infer from the trial court’s order denying TDCJ’s Plea to the Jurisdiction that there is a need for further discovery to resolve a fact issue regarding TDCJ’s subjective awareness. In conjunction with his response to TDCJ’s Plea to the Jurisdiction, Cisneros filed a Motion to Compel discovery and argues that the trial court’s denial of the plea implies the trial court’s [*11] approval of his Motion to Compel. However, no order of the trial court granting his Motion to Compel discovery is included in the record before us. Cisneros was charged with obtaining a ruling on his Motion to compel, objecting if the court refused to rule, or otherwise obtaining a continuance from the trial court to conduct further discovery. See Tex. R. App. P. 33.1(a)(2).” Tex. Dep’t of Criminal Justice v. Cisneros, No. 09-17-00161-CV, 2018 Tex. App. LEXIS 1600, at *10-11 (App.—Beaumont Mar. 1, 2018)
  • Evidence: “In the alternative, Comerica contends that the trial court abused its discretion in excluding Plaintiff’s Exhibit 1. But after the trial court deferred ruling on Plaintiff’s Exhibit 1, Comerica did not reoffer the exhibit and request a ruling at any time before resting its case. Therefore, Comerica failed to properly preserve this issue for our review. See Tex. R. App. P. 33.1(a); Hahn v. Love, 394 S.W.3d 14, 36 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (holding that appellant waived complaint that court erred in excluding exhibits when court deferred discussion on admissibility and appellant never attempted to introduce exhibits again and never presented any argument to the trial court regarding why they were admissible). Nor did Comerica make an offer of proof at the conclusion of the trial, even though it did so for a different exhibit. See Tex. R. Evid. 103(a)(2); Carlisle v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex. App.—Houston [14th Dist.] 2004, no pet.). We therefore do not consider Comerica’s evidentiary arguments regarding Plaintiff’s Exhibit 1.” Comerica Bank v. Progressive Trade Enters., No. 14-17-00283-CV, 2018 Tex. App. LEXIS 1376, at *8 n.5 (App.—Houston [14th Dist.] Feb. 22, 2018)
  • Judicial Notice: “The problem here, however, is that this record does not indicate whether the trial court did or did not judicially notice any portion of the administrative code. And while the trial court had a statutory obligation to take notice of agency rules published in the administrative code, error preservation for failure to do so must be supported by more than a silent record. In order to preserve error, Appellants were required to secure an adverse ruling. See Tex. R. App. P. 33.1(a)(2) (providing that, in order to preserve a complaint for review, the trial court must have ruled or refused to rule). At no point during this trial did Appellants establish that the trial court did not take judicial notice, because at no point during trial did Appellants make any request or inquiry related to the taking of judicial notice.” M.C. v. Pantego Camp Thurman, Inc., No. 02-17-00022-CV, 2018 Tex. App. LEXIS 1430, at *6 (App.—Fort Worth Feb. 22, 2018)

Your objection on appeal must comport with the objection made at trial:

  • Expert Report: “As part of his second issue, Dr. Armenta challenges the adequacy of the element of causation in the expert report. In the trial court, Dr. Armenta objected to Dr. Mazzei’s report on the basis that it failed to meet the statutory requirements for stating the standard of care and identifying the breach of that standard, but he did not object on the basis of inadequacy of the report as to causation. Dr. Armenta’s argument about causation is waived because it was not raised in the trial court.” Armenta v. Jones, No. 01-17-00439-CV, 2018 Tex. App. LEXIS 1586, at *18 (App.—Houston [1st Dist.] Mar. 1, 2018)
  • Witness: “Brown argues the trial court erred by allowing the State to cross-examine him about the 1988 unadjudicated offense without first reliably establishing the facts in the record.. . . Citing to Texas Rules of Evidence 404, 405, 607, 608, and 609, Brown also argues on appeal that, if a defendant in a criminal case takes the stand and denies committing an extraneous offense, the State is not permitted to cross-examine the defendant about the conduct without offering other evidence the conduct occurred. Brown did not make this argument in the trial court and, therefore, failed to preserve it for our review. See Tex. R. App. P. 33.1(a); In re Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex. App. LEXIS 1098, 2015 WL 474604, at *4 (Tex. App.—Beaumont Feb. 5, 2015, pet. denied) (mem. op.) (“HN4 An issue on appeal that does not comport with an objection made at trial is waived.”).” In re Commitment of Brown, No. 05-16-01178-CV, 2018 Tex. App. LEXIS 1357, at *21 n.4 (App.—Dallas Feb. 20, 2018)

Your complaint must be sufficiently specific:

  • Evidence: “With respect to the business records attached to Turner’s affidavit, Foster, on appeal, argues that “several of the records/documents at issue” and the “various loan origination and loan transfer documents” were not admissible under the business records exception because those documents were not generated by TSI. She asserts that Exhibit A, the Subservicer Certification, is “suspect” and has numerous “trustworthiness issues,” i.e., it is not on letterhead, it is not addressed to TSI, it contains names that do not match the names on the governing documents, it conflicts with the indenture, and it is not notarized. She also asserts that “[a]uthentication is an issue with respect to several components of Exhibit 1, including all documents offered for chain-of-title purposes.” [*16] She also complains about the admission of the “Numerical Data Exhibits” and “Data Box Exhibit” in Exhibit 1 as “not properly authenticated” and “did not satisfy the multiple requirements applicable to business records.” The record does not reflect, however, that Foster raised any of these points in the trial court. To preserve a complaint for appellate review, a party must state an objection clearly and with sufficient specificity to make the trial court aware of the particular grounds for the complaint. Tex. R. App. P. 33.1(a); McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989). A specific objection is one that enables the trial court to understand the precise grounds so as to make an informed ruling and affords the offering party an opportunity to remedy the defect, if possible. McKinney, 772 S.W.2d at 74. As discussed above, the record shows that Foster made a general hearsay objection. “[A] general hearsay objection does not preserve for appeal a challenge to a proper predicate’s being made to admit business records.” Rogers v. Dep’t of Family & Protective Servs., 175 S.W.3d 370, 376 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) . . . . We hold that the trial court did not err in admitting the business-records affidavit. We overrule the portion of Foster’s first issue in which she challenges the affidavit. Foster has waived the remaining portions of her first issue.” Foster v. Nat’l Collegiate Student Loan Tr. 2007-4, No. 01-17-00253-CV, 2018 Tex. App. LEXIS 1606, at *15-17 (App.—Houston [1st Dist.] Mar. 1, 2018)

There are a number of cases in which the parties did not raise their complaints in the trial court, and I won’t set those out here.

I hope this helps. Y’all take care.


Steve Hayes

Error Preservation in Texas Civil Cases, February 20, 2018

February 4, 2018

Dear All:

You can preserve an evidentiary objection by getting a ruling at a pre-trial conference:

  • Evidence: “We first address whether Connie preserved error by offering her exhibits into evidence and securing an adverse ruling. Tex. R. App. P. 33.1(a). Connie has not identified by citation—nor have we found—a place in the record when she offered the exhibits into evidence during the evidentiary portion of trial. . . . However, the trial court clearly ruled at a January 16 pretrial hearing that none of Connie’s exhibits would be admitted into evidence at trial and announced that ruling on the record. The trial court has [*44] the authority to make a pretrial ruling on the admissibility of evidence. . . . We also conclude that the excluded exhibits affect Connie’s substantial rights because they pertain to her rights of possession and custody of her children. . . . Connie also informed the trial court of the substance of the excluded exhibits by an offer of proof. Tex. R. Evid. 103(a)(2); . . . Thus, we hold that Connie preserved error on this issue.” In re Marriage of Harrison, No. 14-15-00430-CV, 2018 Tex. App. LEXIS 1249, at *43-44 (App.—Houston [14th Dist.] Feb. 15, 2018)

Here is a case where courts of appeals held several complaints were preserved:  a party preserved a Casteel objection concerning a damages question, and another held that a party did not waive a special appearance:

  • Jury Charge: “In their fourth issue, Appellants challenge the legal and factual sufficiency of the evidence to support the damages awarded. Citing Harris County v. Smith, Appellants assert that it is “error to subject to the jury a single, broad-form damages question, when the liability questions presented mix valid and invalid theories of recovery.” See Harris Cty. v. Smith, 96 S.W.3d 230, 234 (Tex. 2002). Appellees respond that Appellants failed to preserve this error for appeal because they did not specifically object to the damages question. The trial court presented a single, broad-form damages question to the jury. During the charge conference, Appellants’ counsel objected: ‘As to Question 7, the damages question. For [*18] the reasons that we’ve stated and based on the failure — the evidentiary failure to prove a sum certain of damages, we object to Question No. 7 as to damages.’ Prior to this objection, Appellants’ counsel had objected to submitting breach of fiduciary duty and theft as theories of recovery, arguing that there was no evidence to support those claims. Given this context, it is reasonable to conclude that these objections related to the inclusion of those theories in the damages charge. See Tex. R. App. P. 33.1 (explaining that preservation for appeal requires a timely objection stating specific grounds, “unless the specific grounds were apparent from the context”). Therefore, Appellants sufficiently preserved error to invoke the harm analysis employed in Harris County.” Clement v. Blackwood, No. 11-16-00087-CV, 2018 Tex. App. LEXIS 1083, at *17-18 (App.—Eastland Feb. 8, 2018)
  • Managing Conservator: “The Department contends that Father did not preserve his challenge to its appointment as managing conservator because he did not attack the trial court’s February 2012 judgment naming the Department managing conservator. We note that Father was not served in the 2012 action. The Department also claims that Father did not plead for conservatorship. However, Father testified, when asked what he was asking the court for, “I would like to have my child back to the family.” See Baltzer v. Medina, 240 S.W.3d 469, 476 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (stating that where “issues not raised by the pleadings are tried [*27] by express or implied consent of the parties, these issues shall be treated as if they had been raised by the pleadings.”). The Department also argues that Father conceded the issue. In its brief, the Department alleges that Father asked the court to continue the Department as the child’s sole managing conservator, quoting counsel as saying “consider PMC to the agency.” We do not agree. The full quote of counsel was “there’s no grounds to terminate this father’s rights and consider PMC to the agency on this case because this father absolutely deserves a chance to parent this child.” We conclude Father did not waive this issue, and we address Father’s challenge to the appointment of the Department as managing conservator.” In the Interest of F.E.N., No. 14-17-00598-CV, 2018 Tex. App. LEXIS 1012, at *26-27 (App.—Houston [14th Dist.] Feb. 6, 2018)
  • Special Appearance: “Wales asserts that Ruppert’s testimony “in support of Thibodeaux’s motion to transfer venue” violated the due-order-of-hearing rule that requires any motion challenging jurisdiction to be heard and determined before a motion to transfer venue or any other plea or pleading. See Tex. R. Civ. P. 120a(2). Although Wales correctly states the law regarding the due-order-of-hearing requirement, his argument mischaracterizes the proceedings in the trial court. The record clearly shows that the parties were arguing the Ruppert Defendants’ special appearance, not Thibodeaux’s motion to transfer venue, at the time that Ruppert provided testimony. Wales’s counsel effectively acknowledged the focus of the hearing by informing the trial court in response to Ruppert’s argument that “[t]he issue here is what Mr. Ruppert and his businesses do here in Texas that warrants them being brought into the state of Texas.”” Wales v. Ruppert, No. 09-17-00080-CV, 2018 Tex. App. LEXIS 1100, at *8 (App.—Beaumont Feb. 8, 2018)

Here is a case where a court held that a party did not preserve a Casteel objection to a question about attorney’s fees:

  • Attorney’s Fees: “Referring to the seven different claims, Reeder stated that “for them to recover any attorney’s fees, they have to claim each one independently.” He then stated his specific objection as follows: ‘ Since the potential not to recover is there on any of these seven or to recover at a lower percentage, a lesser amount, I don’t think it’s as simple as just saying, well, they only recovered on three of the seven. We are only going to allow seven. The fact is they have not segregated them. There is absolutely no testimony of segregation. We believe it is error and we are — and we object to there being any submission of [*18] attorney’s fees in this particular case in regards to the recovery efforts and the fees sought that were attorney fees to recover on the balances that the Plaintiff claim they were owed.’ . . . In response to Question No. 1 of the jury charge, the jury answered “yes” as to each cause of action, finding that Reeder failed to perform his obligations under the terms of the parties’ agreement “[w]ith regard to each billing account.” However, the jury determined that White P.C. is not entitled to damages for breach of the contracts involved in the Forest Hill/Harris Sand Unit matter, Fry supreme court appeal, Jamestown Insurance Company appeal, and the general category. . . . After the jury returned its verdict, Reeder asserted a motion to disregard the jury findings. Pertinent to White P.C.’s issue on appeal, Reeder contended that the trial court should disregard the jury’s answer to Question No. 3. He argued that White P.C. failed to segregate attorney’s fees between the seven causes of action pled. Noting that the jury awarded damages on just three of the seven pleaded claims, Reeder asserted that White P.C. is not entitled to attorney’s fees for the four unsuccessful claims. Reeder’s post-verdict complaint amounts to a challenge to the charge as given. See Tubb v. Bartlett, 862 S.W.2d 740, 748 (Tex. App.—El Paso 1993, writ denied). A motion to disregard jury [*20] findings is not the proper method for preserving error regarding the submission of jury questions. Id. A careful reading of Reeder’s objection made at the charge conference reveals that he opined that segregation of fees between each of the seven matters was necessary. However, his precise pre-charge objection, relying on the absence of evidence of segregation of fees, was that Question No. 3 should not be submitted to the jury at all. Objections to the court’s charge must be made before the court has submitted the charge to the jury. Id. Reeder did not object to the broad submission of the issue and therefore waived the complaint that White P.C. is not entitled to attorney’s fees due to its failure to segregate fees between the seven causes of action.” White v. Reeder, No. 12-17-00026-CV, 2018 Tex. App. LEXIS 1230, at *17-20 (App.—Tyler Feb. 14, 2018)

You have to comply with other pertinent rules:

  • Evidence: “Williams made no offer of proof or bill of exception regarding the excluded evidence. Rather, he refers the Court to the un-redacted DOL report that was on file with the trial court as part of the earlier summary judgment proceeding.  While the summary judgment evidence is part of the record on appeal, it is not a proper bill of exception or an offer of proof. Malone v. Foster, 956 S.W.2d 573, 577-78 (Tex. App.—Dallas 1997), aff’d, 977 S.W.2d 562 (Tex. 1998). The reviewing court may be able to discern from the record the nature of the evidence and propriety of the trial court’s ruling, but without an offer of proof or bill of exception, the trial court is deprived of a contemporaneous opportunity to correct any error and we generally cannot determine whether exclusion of the evidence was harmful. Sink v. Sink, 364 S.W.3d 340, 346 (Tex. App.—Dallas 2012, no pet). Thus, Williams failed to preserve this issue for appeal. See id.” Williams v. FlexFrac Transp., LLC, No. 05-16-01032-CV, 2018 Tex. App. LEXIS 996, at *6 (App.—Dallas Feb. 5, 2018)
  • Fiduciary Duty: “Carto further asserts that although Briar “may have had the contractual right [*28] to foreclose on the property,” it was not entitled to “exercise that right by . . . breaching the informal fiduciary duty it owed to Carto.” Carto did not raise, in either its second amended petition or response to Briar’s summary-judgment motion, a claim of breach of fiduciary duty. Rather, Carto waited until its motion for new trial, filed after the trial court had granted summary judgment and dismissed Carto’s claims to raise its claim that Briar had breached its “informal fiduciary duties.” This was not sufficient to preserve the issue for appellate review.” Carto Props., LLC v. Briar Capital, L.P., No. 01-15-01114-CV, 2018 Tex. App. LEXIS 1186, at *27-28 (App.—Houston [1st Dist.] Feb. 13, 2018)

You have to obtain a ruling:

  • Exhaustion of Remedies: “At trial, Zarychta argued that the application of Section 14.005(b) to his case violated his right to access the courts. The trial court did not rule on this issue. On appeal, he argues that Section 14.005(b) “does not now operate equally on all within the class.” We find these issues unpreserved. See Tex. R. App. P. 33.1.” Zarychta v. Greene, No. 06-17-00105-CV, 2018 Tex. App. LEXIS 1212, at *5 n.3 (App.—Texarkana Feb. 14, 2018)
  • Summary Judgment: “The Belchers complain finally that the movants’ summary-judgment proof “was not properly authenticated and did not conform to the Texas Rules of Evidence.” To preserve error, one objecting to summary-judgment proof must obtain a ruling. Washington v. Tyler Indep. Sch. Dist., 932 S.W. 2d 686, 689 (Tex. App.—Tyler 1996, no writ). By failing to obtain a ruling on their objections, the Belchers have waived their complaints regarding the movants’ summary-judgment proof.” Belcher v. Geary Family Tr., No. 03-16-00502-CV, 2018 Tex. App. LEXIS 1046, at *5 (App.—Austin Feb. 7, 2018)
  • Testimony: “As to appellant’s complaints of “lack of personal knowledge” respecting the production of information and conclusory testimony, the record shows his only objection raised on those grounds in the trial court as to the testimony of the City’s witnesses, stated above, was not ruled upon. See Tex. R. App. P. 33.1 (preservation of complaint for appellate review requires timely request or objection and ruling by trial court). Therefore, any such objection was not preserved for review on appeal. Id.” Rines v. City of Carrollton, No. 05-15-01321-CV, 2018 Tex. App. LEXIS 1190, at *23 (App.—Dallas Feb. 13, 2018)

Your complaint has to be sufficiently specific:

  • Affidavit: “An objection that the affiant does not have personal knowledge is an objection to the form of the affidavit and must be preserved in the trial court. . . . Here, Robbie filed written objections to Gerald’s affidavit on the basis that it “lack[ed] foundation” without explaining precisely what foundation was lacking. She did not object to a lack of personal knowledge. To preserve error, Robbie was required to state the grounds for the ruling she sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). Her general objection to a lack of foundation was not specific enough to preserve a complaint that the affidavit is not based on Gerald’s personal knowledge. See id. As a result, Robbie failed to preserve this complaint for appellate review. See id.” Morris v. Morris, No. 12-17-00120-CV, 2018 Tex. App. LEXIS 1229, at *7 (App.—Tyler Feb. 14, 2018)

As always, there were many decisions in which courts held error was not preserved because the parties did not raise the complaint at all in the trial court.  I won’t recite all those here.

I hope this helps you as much as it helps me. Y’all take care.


Steve Hayes

Error Preservation in Texas Civil Cases, January 6, 2017


January 6, 2018

Dear All:

Other than the cases holding that parties did not preserve error because they did not raise an issue at all at trial, the last two weeks were a pretty light haul.  But the courts reminded us that a couple of things you can raise for the first time on appeal: lack of subject matter jurisdiction, and, in a non-jury trial, a factual insufficiency complaint:

  • Factual Sufficiency: “In its brief, the Department argues E.L. failed to preserve his factual sufficiency complaint by failing to file a motion for new trial. However, “[i]n a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d);” In the Interest E.E.L., No. 04-17-00536-CV, 2018 Tex. App. LEXIS 43, at *6 n.1 (App.—San Antonio Jan. 3, 2018)
  • Subject Matter Jurisdiction: “Mother does not assert that she raised her jurisdictional complaint in the trial court, and we have not found anything in the record suggesting she did so. But HN1 as a general rule “[j]urisdiction may be raised for the first time on appeal and may not be waived by the parties.” Univ. of Houston v. Barth, 313 S.W.3d 817, 818 (Tex. 2010) (per curiam). So we address Mother’s argument.” In the Interest of G.E.D., No. 05-17-00160-CV, 2018 Tex. App. LEXIS 8, at *6 (App.—Dallas Jan. 2, 2018)

I hope this helps. Y’all take care.


Steve Hayes

Error Preservation in Texas Civil Cases, December 23, 2017

December 23, 2017

Dear All:

The Supreme Court recently held that “‘parties are free to construct new arguments’ in support of unwaived issues”:

  • “In general, an “issue” is a “point in dispute between two or more parties.” Issue, BLACK’S LAW DICTIONARY (10th ed. 2014). A party may waive an issue by failing to present it in the courts below. See Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 763 n.4 (Tex. 2014). By contrast, however, “parties are free to construct new arguments” in support of unwaived issues properly before the court.” State Office of Risk Mgmt. v. Martinez, No. 16-0337, 2017 Tex. LEXIS 1153, at *14 (Dec. 15, 2017)

Here is a case where a party preserved an objection as to a translated document, or more accurately, that the party claiming waiver never put the matter in issue:

  • Evidence: “[A]ppellant complains that Velasco waived his complaint about the usage of the English version of the arbitration agreement by appellant as a translation of the Spanish agreement [*8] that Velasco purportedly signed. Rule 1009 specifically addresses objections to foreign-language documents. In particular, Rule 1009(b) provides that: “When objecting to a translation’s accuracy, a party should specifically indicate its inaccuracies and offer an accurate translation. A party must serve the objection on all parties at least 15 days before trial.” Id. at R. 1009(b). . . .As noted above, appellant did not comply with the requirements of Rule 1009 to serve on all parties, at least forty-five days before trial, a translation and the underlying foreign-language document, as well as a qualified translator’s affidavit or unsworn declaration. And because appellant did not serve a proper translation of [*9] the purported Spanish version of the signed arbitration agreement, there was nothing for Velasco to object to under Rule 1009(b), though he objected to the admissibility of the relevant documents anyway. See id. at R. 1009(b). Accordingly, we are not persuaded by appellant’s waiver contention.” T&T Rock Distribution, LLC v. Velasco, No. 10-16-00408-CV, 2017 Tex. App. LEXIS 11892, at *7-9 (App.—Waco Dec. 20, 2017)

Governmental immunity may be raised for the first time on appeal:

  • Governmental Immunity: “The Board did not argue in the trial court that it was immune from Vizant’s breach of contract claim and that the Legislature had declined to waive such immunity. The Board is permitted to make those arguments for the first time on appeal, . . . but it does not point to record evidence that might rebut the evidence supporting Vizant’s allegation that the contract was properly executed.” Dall./Fort Worth Int’l Airport Bd. v. Vizant Techs., LLC, No. 05-17-00090-CV, 2017 Tex. App. LEXIS 11721, at *11 (App.—Dallas Dec. 15, 2017)

The record must show you preserved your complaint:

  • Continuance: “In Villegas, the Texas Supreme Court held that HN2 when a motion for continuance is not sworn or supported by a proper affidavit, a reviewing court generally presumes the trial court did not abuse its discretion in denying the continuance. 711 S.W.2d at 626. It did not apply the general rule in that case, however, because it found it would be “unrealistic” to apply it to a lay movant whose attorney had been allowed to withdraw over the movant’s objection. Id. . . . The record before us does not contain such evidence. We are not shown whether Ortiz was negligent or at fault in causing Perkins to withdraw. On this record, whether she objected to his withdrawal and, if so, the grounds for her objection, are unknown. We cannot know when Ortiz received notice of the District’s motion [*6] for summary judgment, Perkins’ intention to withdraw, or Perkins’ withdrawal. Nor do we know when Ortiz undertook to locate replacement counsel and the steps she pursued to that end. In short, the record in this case, unlike that in Villegas, provides us no reason to disregard the general presumption that a trial court does not abuse its discretion by denying a motion for continuance that is unsworn and unsupported by an affidavit.” Ortiz v. Plano Indep. Sch. Dist., No. 07-17-00021-CV, 2017 Tex. App. LEXIS 11630, at *4-6 (App.—Amarillo Dec. 13, 2017)

Your complaint must be timely:

  • Affidavit: “During Urban’s testimony as an adverse witness, Gleannloch offered into evidence an affidavit by Tina Williams. The State objected on the grounds of hearsay and failure to disclose in response to requests for discovery. The trial court overruled the State’s objections and admitted the affidavit into evidence. In their second issue, the State asserts the trial court erred. On appeal, the State contends: (1) the affidavit constituted inadmissible hearsay, and (2) was not disclosed in response to discovery requests. We first note the latter argument, although raised at trial, was not raised in the State’s motion for new trial and is therefore waived.” State v. Gleannloch Commer. Dev., LP, No. 14-16-00037-CV, 2017 Tex. App. LEXIS 11921, at *45 (App.—Houston [14th Dist.] Dec. 21, 2017)
  • Dismissal: “ In addition, to be timely a motion to dismiss must be filed before the Department introduces its evidence, other than rebuttal evidence. Tex. Fam. Code § 263.402(b); . . . . Here, Felix and Jane did not file a timely motion to dismiss under Section 263.402 and have therefore waived their right to object to the trial court’s failure to dismiss the suit. See Tex. Fam. Code § 263.402(b); see also Tex. R. App. P. 33.1.” F.R. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00487-CV, 2017 Tex. App. LEXIS 11681, at *13 (App.—Austin Dec. 15, 2017)

I won’t bore you with the cases in which courts held that parties did not preserve error because they did not raise the complaint in the trial court.

I hope this helps. Y’all take care, have a great holiday season, and the best New Year ever.


Steve Hayes