Error Preservation in Texas Civil Cases, June 23, 2018

June 23, 2018

Hey, Buckaroos:

Well, yes, and here we go again, though there is not much to talk about this week.

Your complaint must be timely:

  • Evidence: “To preserve error for appellate review, the complaining party must timely and specifically object to the evidence and obtain a ruling. Tex. R. App. P. 33.1(a); McShane, 239 S.W.3d at 235. Error is waived if the complaining party allows the evidence to be introduced without objection. Id. Here, McPherson did not object to Melamed’s testimony until it filed its motion to strike days later. We conclude the trial court did not err in determining that McPherson’s delay in objecting to Melamed’s testimony waived any error.” McPherson v. Rudman, No. 05-16-00719-CV, 2018 Tex. App. LEXIS 4601, at *14 (App.—Dallas June 21, 2018)

You must get a ruling on your complaint:

  • Continuance: “Here, we note that Anthony, during trial, presented an oral motion for continuance, without a supporting affidavit. See Tex. R. Civ. P. 251 (providing that continuance may be granted only for “sufficient cause supported by affidavit,” by consent of the parties, or by operation of law). Notwithstanding, however, in his brief, he complains that the trial court “did not rule on the request.” To present a complaint for appellate review the record must show that a complaint was communicated to the trial court by a timely motion, request, or objection, complying with the requirements of the rules [*15] of civil procedure, and that the trial court ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule and the complaining party objected to the refusal. See Tex. R. App. P. 33.1(a). Without a ruling from the trial court on his request for a continuance, we hold that Anthony has not preserved his complaint for review and has thus waived the issue. See id.” Amudo v. Amudo, No. 01-17-00318-CV, 2018 Tex. App. LEXIS 4550, at *14-15 (App.—Houston [1st Dist.] June 21, 2018)

Your complaint on appeal must comport with the complaint you made at trial:

  • Participation at trial: “A point of error on appeal must comport with the objection made at trial. In re M.M.W., 536 S.W.3d 611, 613 (Tex. App.—Texarkana 2017, no pet.). To preserve an error for appeal, the complaining party must timely and plainly [*6] make the court aware of the complaint and obtain a ruling. Tex. R. App. P. 33.1(a); In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Here, Jamie complains that the trial court erred in denying her “request to be present and participate in trial.” However, Jamie only requested a continuance of the trial. She did not request a bench warrant, seek permission to participate telephonically, or request other relief to ensure that she could be present and participate in the trial. Because her complaints on appeal do not comport with her request at trial, she has not preserved this issue.” A.M., No. 06-18-00012-CV, 2018 Tex. App. LEXIS 4591, at *5-6 (App.—Texarkana June 22, 2018)

There were a host of cases in which parties did not raise their complaints at trial, and we won’t address those here.

Y’all have a great weekend.  Take good care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

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Error Preservation in Texas Civil Cases, June 18, 2018

June 18, 2018

Dear All:

While it may be limited to its facts, or to Texas Citizens Participation Act cases, in a recent case the Supreme Court reiterated that “‘parties are free to construct new arguments [on appeal] in support of issues properly before the Court’,” and that a party is “not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive”:

Dismissal: The court of appeals found that Adams failed to preserve arguments based on community or environmental well-being by failing to raise them in the trial court. S.W.3d at n.4, 2016 Tex. App. LEXIS 6840. We are not convinced that Adams failed to argue community and environmental well-being in the trial court, as he expressly mentioned these concerns at the hearing on the motion to dismiss. Further, the court of appeals imposed too strict a view of error preservation in this context. Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case. Adams raised as an issue in the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about a matter of public concern. He was not required on appeal or at trial  to rely on precisely the same case law or statutory subpart that we now find persuasive. See Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”); . . . Moreover, the unique language of the TCPA directs courts to decide its applicability based on a holistic review of the pleadings. Section 27.006(a) provides that when considering a TCPA motion to dismiss, the court “shall consider the pleadings and supporting and opposing affidavits.” In TCPA appeals, we have decided whether communications are matters of public concern under a de novo standard of review, suggesting that the determination is one of law.” Adams v. Starside Custom Builders, LLC, No. 16-0786, ___WL___, 2018 Tex. LEXIS 327, at *14-16 (Apr. 20, 2018)

While the facts of this Supreme Court opinion reflect some circumstances where the basis for admitting evidence is established, I would continue to recommend that your offer of proof expressly show everything necessary to support the admission of evidence:

Experts: “To testify as an expert, a witness must be qualified, and the proposed testimony must be relevant to the issues in the case and based upon a reliable foundation. Tex. R. Evid. 702; Robinson, 923 S.W.2d at 556. Therefore, to be admissible, the specific video cuts at issue needed to contain Dr. Schilling’s qualifications. If a court ruling excludes evidence, a party must preserve error by filing an offer of proof informing the court of the substance of the excluded evidence. Tex. R. Evid. 103. Dr. Gunn and OGA’s offer of proof shows that Dr. Schilling’s deposition provides adequate testimony as to her qualifications, including details about her background in physical medicine and rehabilitation, her experience teaching residents in that field, her experience as a director of rehabilitation at a hospital, her experience preparing life-care plans as part of her daily practice, and her own examination of Shannon. Based on the offer of proof, which references the transcript of the excluded testimony, Dr. Schilling’s qualifications are not dissimilar from those of Dr. Willingham, whose testimony was admitted without objection. Both doctors completed a physical medicine and rehabilitation residency, served as medical directors at rehabilitation centers, are on a faculty teaching physical medicine and rehabilitation residents, and prepare life-care plans as part of their practices. Of course, without the specific video cuts in the record, we cannot determine with absolute certainty that the qualifications provided in the offer of proof (Dr. Schilling’s deposition) were actually contained in the proffered testimony. To be clear, an offer of proof is not a work-around for the foundational requirement that an expert’s qualifications be proven, and it is limited to the substance of the excluded evidence. See Tex. R. Evid. 103. However, based on the record before us, we are satisfied [*38] that the defense offered testimony of an expert witness whose qualifications were established. We have no reason to believe that the defense excluded its own expert witness’s qualifications from the video cuts offered, nor can we conclude from the record before us that the qualifications discussed in the defense’s offer of proof were in fact excluded from the video cuts that it intended to show the jury.” Gunn v. McCoy, No. 16-0125, 2018 Tex. LEXIS 560, at *36-38 (June 15, 2018)

You can raise a complaint about incurable jury argument after the verdict has been returned:

Jury Argument: “ Mendez points to a question asked by appellees’ counsel during cross-examination of Angelo Romagosa, M.D., a physician specializing in physical medicine and rehabilitation. Romagosa testified that he was retained by Mendez’s counsel’s law firm to review medical records, examine Mendez, and give an opinion about her future medical needs or “life care plan.” After asking several questions about whether Mendez had been married, appellees’ counsel asked: “And your opinions assume that Ms. Mendez is going to continue living in the United States, right?” Romagosa replied, “Yes.” . . . .Under the circumstances of this case, we agree with Mendez that appellees’ counsel’s veiled reference to her immigration status was so prejudicial as to be incurable by an instruction to disregard. We reach this conclusion after considering the entire record, including appellees’ counsel’s comments at the bench conference following the challenged question, which strongly indicate that counsel believed, contrary to the trial court’s pre-trial ruling, that evidence of Mendez’s immigration status was relevant and admissible. Because appellees’ counsel’s question was incurably prejudicial, the trial court abused its discretion by denying Mendez’s motion for new trial. We sustain Mendez’s first issue on appeal.” Mendez v. Salinas, No. 13-17-00006-CV, 2018 Tex. App. LEXIS 4319, at *21-22 (App.—Corpus Christi June 14, 2018)

Here is a case where a party sufficiently preserved a complaint about the other side’s attorney testifying:

Oath: “Nor may Deborah rely on her attorney’s statements as evidence. While the requirement may be waived, “an attorney’s statements must be made under oath to be considered evidence.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). Here, Godswill objected to the attorney “testifying” and did not waive the requirement of an oath. Id.; Casino Magic Corp. v. King, 43 S.W.3d 14, 20 (Tex. App.—Dallas 2001, pet. denied) (attorney’s unsworn statement in garnishment action was not evidence).” Ugwa v. Ugwa, No. 05-17-00633-CV, 2018 Tex. App. LEXIS 4089, at *7 (Tex. App.—Dallas June 6, 2018)

Requesting and “approving” findings and conclusions does not waive one’s right to challenge those findings and conclusions:

Findings and Conclusions: “N.B.J. also argues that DPS is bound by the trial court’s findings of facts and conclusions of law, which “were approved by” DPS in the trial court. The fact that DPS approved and requested entry of the findings of fact and conclusions of law does not demonstrate that DPS consented to the trial court’s judgment or otherwise waived its right to challenge the findings and conclusions on appeal.Ex parte N.B.J., No. 14-17-00177-CV, 2018 Tex. App. LEXIS 3980, at *6 n.4 (Tex. App.—Houston [14th Dist.] June 5, 2018)

Your complaint must be sufficiently specific:

Sanctions: “In their third issue, the Parents and the Attorneys contend that the trial court failed to adequately specify the basis for sanctions awarded to the Judicial Defendants and Dobbs under Chapter 10 of the Texas Civil Practice and Remedies Code because “[s]imply tracking the language of the statute is insufficient.” The Parents and the Attorneys also contend that the trial court failed to specify the basis for sanctions awarded to the FBISD Defendants under both Chapter 10 and sections 11.161 and 22.055 of the Texas Education Code. . . .As an initial matter, the Judicial Defendants, Dobbs, and the FBISD Defendants argue that the Parents and the Attorneys have waived their specificity complaint because it was not raised in the trial court. See Tex. R. App. P. 33.1; . . . These appellees point out that although the Parents and the Attorneys filed a motion for new trial, or, in the alternative, a motion to modify the judgment, and a request for findings of fact and conclusions of law, they did not object to any lack of specificity in the orders granting sanctions. The Parents and the Attorneys suggest that no objection is required because the requirement for particularity in a sanctions order is mandatory. This court has previously rejected a similar argument based on Rule 13 in Alexander v. Alexander. See 956 S.W.2d 712, 714 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (holding appellant was required to object to a lack of particularity in the trial court even though courts have recognized that Rule 13’s directive that the court specify the basis for sanctions is mandatory). The Parents and the Attorneys also argue that their motion for new trial alerted the court to its failure to adequately describe the offending conduct, because they argued that the amount of the sanctions was excessive and made without reference to any guiding rules and principles, and listed the American Bar Association factors used to evaluate sanctionable conduct. Finally, the Parents and the Attorneys assert that their request for findings of fact and conclusions of law preserved any complaint regarding the trial court’s failure to satisfy section 10.005, because if the trial court had made findings (which it did not), the findings would be sufficient to satisfy the specificity requirements. The thrust of the motion for new trial was that the Parents and the Attorneys’ conduct did not warrant the sanctions imposed under any standard. In the motion, the Parents and the Attorneys demonstrated no difficulty identifying the sanctionable conduct alleged or the applicable legal standards. The request for findings and conclusions was perfunctory and referred only to the final judgment. Nothing in the Parents’ and the Attorneys’ motion for new trial or request for findings and conclusions was sufficiently specific to make the trial court aware that they were complaining that the sanctions orders failed to set out the particulars of the sanctionable conduct. Because the Parents and the Attorneys failed to raise their specificity complaint in the trial court, we conclude that they have failed to preserve this issue for review. See Tex. R. App. P. 33.1(a); . . . .In their fifth issue, the Parents contend that the trial court erred by failing to explain the reasons for sanctioning them. As explained in our discussion of issue three, the Parents failed to make the trial court aware of this complaint; therefore, it is not preserved for appeal. See Tex. R. App. P. 33.1(a). ” Roach v. Ingram, Nos. 14-16-00790-CV, 14-16-01016-CV, 2018 Tex. App. LEXIS 3982, at *45-50, 60-61 (App.—Houston [14th Dist.] June 5, 2018)

You have to comply with the pertinent rules to preserve error:

Continuance: “Here, the court entered an agreed scheduling order on May 18, 2017, which set the discovery deadline as November 4, 2017, thirty days before the December 4, 2017, trial date. Phillip filed his no-evidence motion for summary judgment May 19, 2017, one day after the entry of the agreed scheduling order. Maribeth’s response argued that the motion was premature because an adequate time for discovery had not yet elapsed. However, Maribeth’s objection to the motion was not preserved for our review because she failed to file an affidavit or verified motion for continuance.” Bryant v. May, No. 06-17-00115-CV, 2018 Tex. App. LEXIS 4019, at *10 (Tex. App.—Texarkana June 6, 2018)

Evidence: “Second, appellants’ issue also fails because we do not have a record of the arbitration proceedings, which means we cannot determine if any error is harmful. Appellants argue that they should be excused from producing the arbitration record because the trial judge said at the hearing that he would not take evidence or allow testimony. Having reviewed the reporter’s record, we are not convinced that appellants preserved error by actually offering the arbitration transcript into evidence. But even if appellants adequately offered the arbitration record into evidence and the trial court excluded it, appellants did not make an offer of proof. Accordingly, we cannot tell whether any error was harmful. See Sink v. Sink, 364 S.W.3d 340, 347 (Tex. App.—Dallas 2012, no pet.) (“[W]ithout an offer of proof, we can never determine whether exclusion of the evidence was harmful.”). Without a showing of harm, we cannot reverse. See TEX. R. APP. P. 44.1.” Prell v. Bowman, No. 05-17-00369-CV, 2018 Tex. App. LEXIS 3970, at *11-12 (Tex. App.—Dallas June 4, 2018).

There were the usual collection of cases in which parties failed to raise a complaint in the trial court, but I won’t burden you with those.

I hope this helps.

Take good care.

Yours, Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, June 2, 2018

June 2, 2018

Dear All:

My search engine hit a glitch this week, so I used FastCase (available through the State Bar) to find the cases here. You will have the case number from the court, but not a Lexis or Westlaw cite.  FastCase has some neat features–it’s public link, for instance, which allows you to provide any reader a link to the opinion, whether you subscribe or not.  I should have provide those links for the following cases, but did not think about doing so until too later.  However, here is an example.  You ought to check it out.

On to the cases.  Here is a case which, while not mentioning the words, held that the complaint at trial was sufficiently specific:

Legal Sufficiency: “OCTG asserts the trial evidence is legally and factually insufficient to support the jury’s findings in response to the damages question for OCTG’s breach of the Finishing Agreement and breach of express warranty. The jury found $1,562,127 in damages for OCTG’s breach of contract and $1,562,127 in damages for OCTG’s breach of warranty. OCTG and Sojourn argue that the evidence is legally and factually insufficient to support the jury’s findings as to reasonable and necessary expenses under the legal standard set forth in Dallas Railway and Terminal Co. v. Gossett and its progeny. 294 S.W.2d 377, 382-83 (Tex. 1956); see also McGinty v. Hennen, 372 S.W.3d 625, 627-28 (Tex. 2012). 1. Preservation Before discussing this legal standard, we first consider whether OCTG preserved these appellate complaints in the trial court. Laguna and LTP assert that OCTG did not preserve error. In their motion for judgment notwithstanding the verdict, OCTG and Sojourn asserted that the record contained no evidence to support the jury’s finding of $1,562,127 in damages resulting from the breach of the Finishing Agreement. OCTG and Sojourn did not assert a lack of evidence to support the jury’s finding of $1,562,127 in damages resulting from OCTG’s breach of warranty. But, in their motion for new trial, OCTG and Sojourn asserted legal insufficiency of the evidence to support the jury’s damages findings in response to both questions. The trial court denied the motion for new trial. Laguna and LTP appear to argue that OCTG was required to assert specifically that the evidence is legally insufficient as to the “reasonable and necessary” element of each question. We conclude that the complaints in the motion for new trial preserved error as to the legal-insufficiency arguments under OCTG’s sub-issue. See Arkoma Basin Expl. Co. v. FMF Assocs., 249 S.W.3d 380, 387-88 (Tex. 2008).” O.C.T.G. v. Laguna Tubular Prods. Corp., No. 14-16-00210-CV, (Tex. App., May 31, 2018)

But here is one where the complaint was not sufficiently specific :

Evidence: “At trial, Niranjan offered Exhibit 12 for admission into evidence, and identified the exhibit as consisting of emails between him and Smita. However, he admitted, only “part[s]” of the exhibit included emails between him and Smita, and requested that the trial court review the portion of the exhibit involving emails between the parties. Smita’s attorney objected as to hearsay, and the trial court sustained Smita’s objection. In his brief, Niranjan again states that the emails were “largely between the parties although there were sections wherein information was passed along to third parties.” We note that the majority of the 231 page exhibit appears to be emails between the parties. However, portions of the exhibit contain emails between Niranjan and the unidentified email addresses of at least seven other persons, some of whom appear to be former legal counsel. The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable. In re S.M., 207 S.W.3d 421, 424 (Tex. App.-Fort Worth 2006, pet. denied) (citing Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1035, 113 S. Ct. 1858, 123 L. Ed. 2d 479 (1993)). If evidence is offered and challenged, which contains some of each [admissible and inadmissible], the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection. Id. When evidence is both admissible and inadmissible, a party may not complain on appeal unless the admissible evidence was specifically offered. See Speier v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981). Here, it was not the trial court’s responsibility to sort through this voluminous record to determine which emails were admissible and which were inadmissible. See In re S.M., 207 S.W.3d at 424. Thus, Niranjan failed to preserve his complaint regarding the trial court’s exclusion of Exhibit 12. See Speier, 616 S.W.2d at 619.” Gadekar v. Zankar, No. 12-16-00209-CV (Tex. App.–Tyler, May 31, 2018)

Sometimes, issues can be tried by consent:

Substantial Performance: “Here, the Dieringers contend the theory of substantial performance was neither supported by Griffin’s pleadings nor tried by consent. We disagree. As previously stated, substantial performance is considered to be a condition precedent to the right to bring suit on a construction contract. Therefore, Griffin’s breach of contract pleadings supports its claim whether based upon substantial compliance or complete performance. Furthermore, when issues not raised by the pleadings are tried by consent (either express or implied) they are to be treated in all respects as if they had been raised in the pleadings. See TEX. R. CIV. P. 67. An issue is tried by consent if the presentation of evidence puts the parties on notice that recovery under the unpled theory is conceivable, and the other party fails to make an appropriate complaint. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). Here, a significant portion of the evidence presented centered around the nature and degree of Griffin’s alleged non-performance and the reasonable cost of remediating those deficiencies. Lyndall Hurst, Griffin’s President, testified in detail concerning the initial construction, approval, transportation, installation, repair, and final approval of the residence. In addition, both Brandon and Laura Dieringer testified to the long list of deficiencies identified and, with the assistance of their expert witnesses, to the reasonable cost of their remediation. Based on the amount of time spent and testimony received on those questions, we cannot say the trial court abused its discretion in finding that the theory of substantial performance was tried by consent.Charles Griffin Custom Ready-Built Homes, Inc. v. Dieringer (Tex. App.–Amarillo, May 29, 2018)

You have to get a ruling from the trial court on your complaint:

Evidence: “We turn next to Leonard’s complaint that Knight’s alleged failure to supplement his discovery responses with Junell’s billing records (among other things) rendered Junell’s fee affidavit inadmissible. Leonard included an objection to the admissibility of Junell’s affidavit in his summary judgment response, but he did not obtain an express ruling on that objection. On appeal, Leonard argues that he preserved this complaint because the trial court’s action in granting Knight’s motion for summary judgment implicitly overruled his objection to Junell’s affidavit. We disagree. See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d 596, 603-04 (Tex.App.—Houston [14th Dist.] 2012, no pet.) (stating that this Court has refused to recognize the granting of a summary judgment motion as an implied overruling of the nonmovant’s evidentiary objections). Obtaining an express ruling on an objection to summary judgment evidence is necessary to preserve error for appellate review. Id. Because Leonard did not obtain a ruling on his objection to Junell’s affidavit, he has not preserved any complaint he may have had for appellate review. We overrule Leonard’s second issue.” Leonard v. Knight, 4-16-00932-CV (Tex. App.–Houston [14th Dist.], May 31, 2018)

Sanctions: “By their seventh issue, the Eubanks contend that the trial court abused its discretion by not sanctioning the Bank for discovery abuse. The Eubanks moved for monetary sanctions, but never obtained a ruling or objected to the trial court’s failure to rule. The question of monetary sanctions is therefore not preserved for our review. See TEX. R. APP. P. 33.1(a)(2).” Mattar v. Bbva Compass Bank, No.13-16-00496-CV (Tex. App.–Corpus Christi-Edinburg, May 31, 2018)

You have to comply with other pertinent rules in asserting your complaint in the trial court:

Jury Charge: “In Nelson’s Issue Three, he asserts that Vernco should not be allowed to collect the $350,000 in damages attributable to his failure to file inefficiency claims because those were special/consequential damages27 that should have been, but were not, pleaded in Vernco’s live petition; Vernco only explicitly sought to recover “lost profits” resulting from Nelson’s breach. See TEX.R.CIV.P. 56 (“When items of special damage are claimed, they shall be specifically stated.”). Vernco counters that Nelson waived any challenges to pleading defects by failing to file special exceptions, and the issue of damages related to inefficiency claims was tried by consent. We agree with Vernco. “Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury . . . shall be deemed to have been waived by the party seeking reversal on such account[.]” [Emphasis added]. TEX.R.CIV.P. 90. While Nelson verbally objected to the inclusion of the instruction at the jury charge conference, Nelson directs us to nothing in the record that would show he ever filed an objection in writing as required by Rule 90. Thus, any objection to Vernco’s failure to bring up the specific issue in a pleading has been waived.” Nelson v. Vernco Constr., Inc., No. 08-10-00222-CV (Tex. App.–El Paso, 2018)

Pleading: “To the extent that Gabriel’s cross-appeal issue is intended as a challenge to Blaauw’s capacity, it fails for lack of a verified pleading. Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 93(1); Nootsie, Ltd., 925 S.W.2d at 662 (holding Nootsie waived any complaint about appraisal district’s legal capacity because it failed to raise the issue through a verified pleading in the trial court).” Alarcon v. Velazquez, No. 14-16-00481-CV (Tex. App.–Houston [14th], May 31, 2018)

Pleading: “ OCTG and Sojourn assert this court must set aside the damages found by the jury in response to damage questions for Laguna’s breach-of-contract and breach-of-warranty claims because, in the Finishing Agreement, the parties agreed that OCTG would not be liable for damages resulting from its breach of the Finishing Agreement. Instead, OCTG’s sole obligation would “be to furnish substitute equivalent Services on substitute goods or, at [OCTG’s] election, to repay or credit [Laguna] an amount equal to the price of the Services.” Texas Rule of Civil Procedure 94 requires an affirmative pleading of certain specified defenses and of “any other matter constituting avoidance or affirmative defense.” Tex. R. Civ. P. 94. A contractual limitation-of-liability provision constitutes an avoidance or affirmative defense that a party must plead affirmatively. See id.; see also Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 671 (Tex. App.–Houston [14th Dist.] 1994, writ denied). A party waives an avoidance or affirmative defense if the party fails to plead it and the issue is not tried by consent. See Tacon Mech. Contractors, 889 S.W.2d at 671. OCTG neither pleaded that its liability was limited under the Finishing Agreement, nor was the limitation-of-liability issue tried by consent. Thus, OCTG has waived this issue. See id.” O.C.T.G. v. Laguna Tubular Prods. Corp., No. 14-16-00210-CV, (Tex. App., May 31, 2018)

The complaint you raise on appeal must comport with the complaint you made at trial:

Jury Charge: “On appeal, the Eubanks also complain of the trial court’s refusal to submit a spoliation instruction concerning the Bank’s purported failure to produce other documents. However, this complaint does not conform with the Eubanks’ argument at the charge conference, and it is therefore not preserved for our review. See TEX. R. APP. P. 33.1(a); see, e.g., Lowry v. Tarbox, 537 S.W.3d 599, 617 (Tex. App.—San Antonio 2017, pet. denied) (“On appeal, appellants present an entirely different argument [concerning the proposed jury] question . . . .”).” Mattar v. Bbva Compass Bank, No.13-16-00496-CV (Tex. App.–Corpus Christi-Edinburg, May 31, 2018)

There were a raft of decisions which held that a complaint was not preserved because it was not raised in the trial court, but I won’t set those out here.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

Error Preservation in Texas Civil Cases, May 26, 2018

Dear All:

Had some spare time, so thought I would update with this week’s stuff.

The Supreme Court weighed in on error preservation as to a Casteel complaint, but really said nothing new, that I could tell:

Jury Charge: “Whether Dr. Benge has an evidentiary complaint or not, the complaint he makes is that the charge allowed the jury to consider what he did or did not tell Williams about Dr. Giacobbe’s involvement in the surgery in deciding negligence, even though Williams does not seek recovery on that basis. He objected to the charge and requested a limiting instruction. In Morrison, we held that an objection to the charge even without a requested question or instruction preserved the complaint that the evidence would allow the jury to find liability in answer to a single broad-form question, on a theory on which the plaintiff could not recover. Dr. Benge’s objection and requested instruction went as far as that case requires.” Benge v. Williams, No. 14-1057, 2018 Tex. LEXIS 441, at *24 (May 25, 2018)

You can raise some complaints for the first time on appeal–for example, lack of legally and factually sufficient evidence in a bench trial:

Legal Sufficiency: “Husband also argues that Wife failed to preserve her complaints about characterization of these items. But in a nonjury case, a party may complain about legal and factual sufficiency of the evidence for the first time on appeal. Tex. R. App. P. 33.1(d). Wife’s issues are based on both legal and factual sufficiency of the evidence to support the trial court’s characterization and division of property. Consequently, we will address the merits of Wife’s arguments.” In the Interest of D.V.D., No. 05-17-00268-CV, 2018 Tex. App. LEXIS 3657, at *11 (App.—Dallas May 22, 2018)

When you object to an expert’s testimony as unreliable before trial, and receive a ruling on your objection, you have preserved your complaint for appeal:

Expert: “The record reflects appellant filed a pretrial motion to exclude Stewart’s expert testimony. See Tex. R. Evid. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-95, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). That motion was presented to the trial court and a hearing was held, after which the trial court overruled the motion. None of appellant’s issues claim the trial court abused its discretion in overruling her motion but the entirety of her argument leads us to construe it to be one of admission of expert testimony rather than erroneous evidentiary rulings. See Tex. R. Evid. 702.  To preserve a complaint that expert opinion evidence is inadmissible because it is unreliable, a party must object to the evidence before trial [*12] or when the evidence is offered. Kerr—McGee Corp. v. Helton, 133 S.W.3d 245, 251-52 (Tex. 2004) (abrogated on other grounds by Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Accordingly, appellant’s complaint was preserved.” In re Mugford, No. 14-16-00436-CV, 2018 Tex. App. LEXIS 3586, at *11-12 (App.—Houston [14th Dist.] May 22, 2018)

Sometimes, the trial court’s ruling can be implied:

Legal Sufficiency: “Mandy asserts in her first issue that the evidence is legally insufficient to support the jury’s “yes” answer in response to Question No. 9 because the record does not show that she employed Shadow Creek to perpetrate an actual fraud primarily for her direct personal benefit. See id. § 21.223(b). Mandy preserved this contention at the charge conference and post-verdict. n. 4 n. 4 This contention was raised in Shadow Creek’s and Mandy’s response and objections to Havey’s motion for entry of judgment, which asserted that “[i]t would be improper to enter[] judgment on [Question No.] 9, and a take nothing [judgment] should be issued as to Mandy Hong.” The trial court did not explicitly rule on Havey’s motion for entry of judgment or on Shadow Creek’s and Mandy’s objections. Instead, the trial court signed a final judgment assessing liability against Mandy based on the jury’s responses to Questions No. 1, 3, and 9. In doing so, the trial court implicitly overruled Shadow Creek’s and Mandy’s objections to Havey’s motion for entry of judgment. See Tex. R. App. P. 33.1(a)(2)(A) (providing that error is preserved when the trial court ruled on the motion either expressly or implicitly);” Hong v. Havey, No. 14-16-00949-CV, 2018 Tex. App. LEXIS 3705, at *17 n.4 (App.—Houston [14th Dist.] May 24, 2018)

Jury Finding:”Mandy asserts in her second issue that the jury’s common law fraud and conspiracy findings in Questions No. 1 and 3 are immaterial because the claims are statutorily barred by sections 21.223 and 21.224 as “common law claims to establish contract liability under a corporate obligation.” See Tex. Bus. Orgs. Code Ann. §§ 21.223, 21.224. Mandy preserved this argument by asserting it at the charge conference and post-verdict. n. 5 n. 5 This contention was raised in Shadow Creek’s and Mandy’s response and objections to Havey’s motion for entry of judgment, which asserted that the jury findings in response to Questions No. 1 and 3 are immaterial. The trial court did not explicitly rule on Havey’s motion for entry of judgment or on Shadow Creek’s and Mandy’s objections. Instead, the trial court signed a final judgment assessing liability against Mandy based on the jury’s responses to Questions No. 1, 3, and 9. In doing so, the trial court implicitly overruled Shadow Creek’s and Mandy’s objections to Havey’s motion for entry of judgment. See Tex. R. App. P. 33.1(a)(2)(A) (providing that error is preserved when the trial court ruled on the motion either expressly or implicitly).” Hong v. Havey, No. 14-16-00949-CV, 2018 Tex. App. LEXIS 3705, at *28 n.5 (App.—Houston [14th Dist.] May 24, 2018)

Still, it is far better to get an express ruling on your complaint, because then you know you have the ruling you need to preserve your complaint:

Discovery: “In his third issue, Morgan asserts that the trial court abused its discretion by denying his request for discovery. There is no indication in the record that Morgan served Varghese with discovery requests. After Varghese moved to dismiss Morgan’s claims, Morgan filed a “Motion to Show Cause for Action,” in which he prayed for “full disclosure” pursuant to civil-procedure rules 194.1 and 194.2 and “production & inspection” under rule 196.1. Tex. R. Civ. P. 194.1, 194.2, 196.1. . . .We construe this issue as a complaint that the trial court denied Morgan’s “Motion to Show Cause for Action.” But because the trial court did not rule on this motion and there is no indication in the record that the court refused to do so, Morgan has failed to preserve this complaint for our review. See Tex. R. App. P. 33.1(a)(2). Moreover, under section 14.003(d), the trial court was required to “suspend discovery relating to the claim pending the hearing.” Tex. Civ. Prac. & Rem. Code Ann. § 14.003(d); Albert v. Aldelstein, No. 02-13-00073-CV, 2013 Tex. App. LEXIS 9909, 2013 WL 4017511, at *4 (Tex. App.—Fort Worth Aug. 8, 2013, no pet.) (mem. op.) (“Under chapter 14 . . . ‘the trial court shall suspend discovery’ pending a determination of frivolousness.” (quoting Tex. Civ. Prac. & Rem. Code Ann. § 14.003(d))). We therefore overrule Morgan’s third issue.” Morgan v. Varghese, No. 02-17-00079-CV, 2018 Tex. App. LEXIS 3739, at *7-8 (App.—Fort Worth May 24, 2018)

I won’t bore you with the cases where parties failed to raise their complaints at all in the trial court.

Hope this helps.  Y’all have a good weekend, and week.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, May 19, 2018

Here is another court which struggles when trying to determine whether something is an issue–which must be raised in the trial court–as opposed to an additional argument which supports an issue.  The Court concluded that it was dealing with an additional argument, as opposed to a newly raised issue:

Limitations: “In oral argument and a post-submission letter brief, AK responds that ART’s issue in the trial court and in its original appellate brief was limited to ART’s second argument whether Hughes should be extended or expanded to include transactional malpractice. Accordingly, AK argues ART’s first argument has been waived. The issue of the applicability of the Hughes tolling doctrine was presented to the trial court in ART’s response to AK’s summary judgment in general statements that encompass both its arguments as well as in specific statements articulating ART’s second argument. See Adams v. Starside Custom Builders, LLC, No. 16-0786, 2018 Tex. LEXIS 327, 2018 WL 1883075, at *5 n.2 (Tex. Apr. 20, 2018) (general argument that mentioned other terms in a statute not specifically argued to trial court preserved issue for appeal). On appeal, ART’s original brief primarily urged its second argument to extend the Hughes rule to include their claims. But ART made broad statements such as this summary of its appellate position regarding Hughes:

[ART] asserted below and assert here that the equitable tolling doctrine set forth in Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156-57 (Tex. 1991), applies to their claims in this case. If it does, then even the later-filed but more specific Second Amended Original Petition is timely to assert [ART’s] claims against AK relating to its advice in terminating the Clapper Transaction.

The Texas Supreme Court has held some claims such as Plaintiffs are covered by Hughes. Indeed, Hughes itself involved legal malpractice unrelated to a pending lawsuit. Some federal district courts have also applied Hughes to claims like those alleged here.

(Appellants’ Brief at 19). In its formal argument, ART contended,

Plaintiffs asserted, both in their Second Amended Petition . . . and in their response to AK’s Second Motion for Summary Judgment on Limitations . . . , that Hughes applied to toll limitations as to its claims arising from AK’s March 1999 advice and work concerning the termination of the Clapper Transaction. As a result, Plaintiffs [sic] Second Amended Petition, which alleged [*12] those claims with more specificity, was not barred by limitations.

(Id. at 32-33) (citations to record and appendix omitted). AK does not dispute that ART clearly asserted its first argument in its reply brief that the Hughes rule applies as it currently exists, without the need for extension. We cannot consider issues raised for the first time in a reply brief. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per curiam). But the distinction between issues and arguments is not always clear. See Adams, 2018 Tex. LEXIS 327, 2018 WL 1883075, at *5 (“[Appellant] was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.”) (citing Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”)). Because both of ART’s arguments contend Hughes applies or should apply to ART’s claims, we address them both.” Am. Realty Tr., Inc. v. Kurth, No. 05-16-01433-CV, 2018 Tex. App. LEXIS 3226, at *11-12 n.6 (App.—Dallas May 8, 2018)

Concerning a fact issued tried to the bench, one may raise a legal sufficiency challenge for the first time on appeal.

Attorney’s Fees/Legal Sufficiency: “The Dinkinses did not object to the attorney’s-fees award in the trial court.  Generally, to preserve a complaint for appellate review, a party must have presented its complaint to the trial court by timely request, objection, or motion with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). “Complaints regarding alleged error in awarding attorney’s fees are subject to this rule.” Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.-Houston [14th Dist.] 2015, no pet.). We interpret the Dinkinses’ contention that there was no legal basis for the attorney’s-fees award to mean that it lacked any statutory or contractual basis. Because the Dinkinses never objected to the attorney’s-fees award in the trial court, they did not preserve error as to this [*21] complaint. See id. But because the trial court determined the amount of attorney’s fees, the Dinkinses may still challenge the sufficiency of the evidence supporting the attorney’s-fees award because such a challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d); Gipson-Jelks, 468 S.W.3d at 604-05; see also Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, 2017 WL 4053943, at *3 (Tex. App.-Fort Worth Sept. 14, 2017, no pet.) (mem. op.).” Dinkins v. Calhoun, No. 02-17-00081-CV, 2018 Tex. App. LEXIS 3519, at *20-21 (App.-Fort Worth May 17, 2018)

When you timely raise your complaints on multiple occasions in the trial court, you will have preserved it:

Experts: “Hood argues DuPont failed to preserve some of its challenges to the input data by not objecting to the trial court. DuPont responds an objection was not required to preserve these issues. A review of the record, including DuPont’s pretrial motions to strike Stewart’s expert testimony, a hearing on the motion to strike, and its post-judgment motions challenging the sufficiency of the evidence on causation, reveals that DuPont challenged the reliability of the inputted data for (1) respirator use; (2) the amount of benzene in DuPont’s products; (3) benzene exposure when Hood was not painting; and (4) size of the vehicles being painted. Thus, we consider whether Stewart’s lifetime benzene exposure dose was unreliable based on the specific [*16] data inputted in ART for these categories.” E.I. du Pont de Nemours & Co. v. Hood, No. 05-16-00609-CV, 2018 Tex. App. LEXIS 3228, at *15-16 (App.—Dallas May 8, 2018)

Your complaint must be timely:

Disqualification: “We should “consider the length of time between the moment the conflict became apparent to the aggrieved party to the time the motion for disqualification is filed in determining whether the complaint was waived.” Wasserman v. Black, 910 S.W.2d 564, 568 (Tex. App.—Waco 1995, orig. proceeding). At the hearing on their motion for disqualification, Los Robles and Nors did not respond to Deadman’s waiver objection by attempting to explain their delay. In their response to the petition for writ of mandamus, Los Robles and Nors do not state when they first learned of a conflict, nor do they offer any explanation for why they waited until November 2017 to file their motion. Almost six months elapsed between the filing of the June 2017 Eighth Amended Petition and the November 2017 motion for disqualification, and Los Robles and Nors do not allege this petition was insufficient to put them on notice of the alleged conflict. EPIC Holdings, 985 S.W.2d at 52 (moving party satisfactorily explained delay). . . . Based on the unexplained delay in filing their motion for disqualification, we must conclude Los Robles and Nors waived their right to seek disqualification of Deadman as relators’ attorney.” In re Schmidt, No. 04-18-00077-CV, 2018 Tex. App. LEXIS 3241, at *10 (App.—San Antonio May 9, 2018)

Evidence: “In her brief, Mary relies on her motion for new trial to establish error. Mary attached some of her discovery responses to the motion to establish that Adam was on notice that the she intended to introduce evidence of her increased costs at trial. “While a motion for a new trial may preserve some errors, standing alone, it cannot preserve error related to the admission or exclusion of evidence.” Mandeville v. Mandeville, No. 01-15-00119-CV, 2015 Tex. App. LEXIS 12033, 2015 WL 7455436, at *5 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet.) (mem. op.) (citing Tex. R. Evid. 103; Tex. R. App. P. 33.1). It is not presented during trial, as required for [*5] an offer of proof. See Tex. R. Evid. 103(c) (requiring offer of proof to be presented at trial). And it does not satisfy the requirements of a formal bill of exception. See Tex. R. App. P. 33.2(c) (establishing procedure for filing bill of exception). Moreover, the discovery responses attached to Mary’s motion for new trial do not reasonably summarize the evidence of Mary’s increased costs in comparison to her net resources. In her response to interrogatories, Mary summarized her current monthly expenses. She did not, however, identify which of those expenses had increased or by what amount. Mary’s complaints about the trial court’s exclusion of her evidence concerning her increased costs have not been preserved for appeal. We overrule Mary’s first, second, and third issues.” Jacob v. Jacob, No. 01-16-00835-CV, 2018 Tex. App. LEXIS 3276, at *4-5 (App.—Houston [1st Dist.] May 10, 2018)

Improper Jury Argument: “The trial court ordered a new trial because Oiltanking made what the trial court deemed was an improper and prejudicial jury argument. In closing argument, Oiltanking argued, in part, that the evidence showed Stelly had a deteriorating orthopedic condition before and after the accident. Without objection, Oiltanking argued Stelly’s disregard of a doctor’s light duty restriction six weeks before the accident was “an accident waiting to happen[,]” that “instead of going on light duty, he fell[,]” and further argued that Stelly “shouldn’t have even been out there.”. . . .Generally, a complaint about an improper jury argument must be preserved by making an objection [*14] at the time the argument occurs, obtaining a ruling on the objection, and requesting an instruction that the jury disregard the improper remark. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). However, a complaint of incurable jury argument may be asserted and preserved in a motion for new trial. Tex. R. Civ. P. 324(b)(5). Because an instruction to disregard will typically cure any probable harm arising from an improper jury argument, to be incurable the argument must be so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” Goforth v. Alvey, 271 S.W.2d 404, 153 Tex. 449, 450-51 (Tex. 1954). “[I]ncurable argument is that which strikes at the very core of the judicial process.” Phillips, 288 S.W.3d at 883. When appropriate, a new trial may be ordered because “arguments that strike at the courts’ impartiality, equality, and fairness inflict damage beyond the parties and the individual case under consideration . . . [and] damage the judicial system itself by impairing the confidence which our citizens have in the system[.]” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008). Examples of incurable arguments include appeals to racial prejudice, extreme unsupported personal attacks on parties or witnesses, and unfounded accusations of manipulating a witness. Id. Oiltanking’s [*15] argument that Stelly was at fault for violating his doctor’s medical restrictions on the date of the accident neither appealed to racial or ethnic bias, nor perpetrated an extreme personal attack on Stelly or an unsupported inflammatory allegation of illegal or immoral conduct by Stelly or his counsel. Because the argument was not incurable, the trial court clearly abused its discretion by granting a new trial.In re Enter. Refined Prods. Co., LLC, No. 09-18-00069-CV, 2018 Tex. App. LEXIS 3503, at *13-15 (App.—Beaumont May 17, 2018)

You have to comply with other pertinent rules:

Evidence: “Castanon supports her argument [that the trial court erred in determining it did not have jurisdiction to protect her infant son against the child’s father] by citing an excerpt of the reporter’s record from the hearing on the protective order in which the trial court “declined” to consider evidence pertaining [*3] to the inclusion of the parties’ infant son on the protective order due to its determination that the question of whether the infant should be protected from his father should be considered by a court in the context of a SAPCR. That excerpt reads: . . . ‘Counsel: We are also going to be able to put on evidence to show that he tried to take the baby while she was in the hospital. I can —Court: I’m not going to do anything with the infant if he doesn’t pose any type of physical danger to the infant. You’re not alleging that, are you? Counsel: When he did try to take the child from the hospital, yes. Court: I’m not going to do that. That’s for a SAPCR. It’s not for a protective order. I don’t know how many times I have to say that. That’s my position. Counsel: We’re just also concerned about his gang affiliations, his family connections — Court: I’m not going to enter any order with regard to their infant. His infant. All right .’ Besides this exchange and a couple of brief narrations later in the hearing in [*4] which the trial court, unprompted, reiterates its decision on the matter without further explication or objection, there is nothing else in the record excerpt or any proceedings preceding it reflecting the trial court’s determination on the issue of whether the infant may be included in the protective order. On this limited record, we cannot conclude that the district court erred or abused its discretion in declining to include the infant in the protective order, even assuming it had jurisdiction to make that determination. And to the extent this exchange could be viewed as indicating Castanon’s desire to present evidence about the issue of appellee’s alleged danger to the infant, Castanon has not preserved error as to any exclusion of evidence, nor has she raised exclusion of evidence as an issue on appeal. See Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2) (offer of proof).” Castanon v. Gomez-Valles, No. 03-17-00751-CV, 2018 Tex. App. LEXIS 3366, at *2-4 (App.—Austin May 15, 2018)

You have to get a ruling from the trial court on your complaint–but there are times when that ruling can be implicit:

Plea to the Jurisdiction: “Appellee argues that on June 15, 2015, the trial court granted the MDCs’ Motion and Plea to Jurisdiction as to all claims under the Texas Tort Claims Act and as to all claims for damages, [*17] but otherwise denied the rest of the plea and motion. By virtue of that order, the Appellee argues that Smedley retained injunctive claims against the MDCs through “the Takings Clause and Section 11.086 of the Water Code[,]” and he states the trial court later also denied in all respects the motion for summary judgment filed by the MDCs. . . . section 51.014(a)(8) of the Texas Civil Practices and Remedies Code, to which the Appellants cite as the basis for this interlocutory appeal. This subsection allows an appeal from an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001[.]” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). . . . In order for a party to be entitled to an interlocutory appeal, section 51.014(a)(8) requires a grant or denial of a jurisdictional challenge. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Even in the absence of an explicit denial of a jurisdictional challenge, however, if a trial court rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack, it has implicitly denied the jurisdictional challenge. Thomas, 207 S.W.3d at 339-40. This implicit denial satisfies section 51.014(a)(8) and gives the court of appeals jurisdiction to consider an otherwise impermissible interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R. App. P. 33.1(a)(2)(A); Thomas, 207 S.W.3d at 340.” City of Magnolia v. Smedley, No. 09-15-00334-CV, 2018 Tex. App. LEXIS 3488, at *16-19 (App.—Beaumont May 17, 2018)

Modification: “In bringing forth its first issue for review, the Landlord asserts that Xerox did not prove the TPA amended the Lease as a matter of law. The trial court, however, issued no such ruling. On review of the record, we agree that Xerox sought and the trial court granted partial judgment on the narrow basis of the TPA as a separate contract. See City of San Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.—San Antonio 2001, no pet.) (recognizing that an appellate court may accept admissions made in the briefs as true). Because the trial court was not asked to do so, the trial court made no ruling on the alternative theory—whether the TPA amended the lease as a matter of law. Given the circumstances, we conclude we are not authorized to review Issue One’s broad argument, and three of its four sub-arguments, as these arguments assert Xerox failed to prove an alternative [*20] theory abandoned and not ruled on below. Tex.R.App.P. 33.1(a)(1) and (2) (as a prerequisite of appellate review, the record must show the trial court made a ruling). An appellate court is not authorized to reverse a trial court’s judgment in the absence of properly assigned error.” 1320/1390 Don Haskins, Ltd. v. Xerox Commer. Sols., LLC, No. 08-16-00027-CV, 2018 Tex. App. LEXIS 3268, at *19-20 (App.—El Paso May 9, 2018)

As always, many opinions held that a party failed to preserve error by failing to raise its complaint at all in the trial court.  I won’t burden you with those.

Hope that helps.  See you next time.

Yours,

Steve Hayes (817/371-8759;  www.stevehayeslaw.com)

Error Preservation in Texas Civil Cases, May 8, 2018

May 8, 2018

Dear All:

Here is an interesting error preservation case involving the vexatious litigation code section of the Civil Practices and Remedies Code:

Vexatious Litigation: “Jones first argues that Anderson waived the opportunity to file a vexatious litigant motion because he filed the motion “more than two years after he was originally served with the other Defendants in 2014.” HN4 The time for filing a motion to have a person declared a vexatious litigant is prescribed by statute, and the proper construction of a statute is a question of law, which we review de novo. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Texas Civil Practice and Remedies Code section 11.051 states that “the defendant may, on or before the 90th day after the date the defendant files the original answer or makes a special appearance, move the court for an order: (1) determining that the plaintiff is a vexatious litigant; and (2) requiring the plaintiff to furnish security.” Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (West 2017). The record before us does not show that Anderson ever filed an answer or special appearance. His motion to have Jones declared a vexatious litigant appears to be the first document Anderson filed in this case. Indeed, Jones stated at the hearing on the motion that Anderson filed the vexatious-litigant motion “instead of filing an answer.” [*15] Jones cites no authority in support of her position that Anderson waited too long to file his motion. Although she points out that the Markel defendants filed a vexatious-litigant motion two years before Anderson did, the statute does not require a defendant to join a vexatious-litigant motion filed by another defendant. Because Anderson did not file his motion ninety or more days after filing an answer or a special appearance, we conclude that he did not waive the opportunity to move for a declaration that Jones is a vexatious litigant, and that his motion instead was timely filed.Jones v. Anderson, No. 14-16-00727-CV, 2018 Tex. App. LEXIS 3044, at *14-15 (App.—Houston [14th Dist.] May 1, 2018)

Your complaint in the trial court must be sufficiently specific to make the trial court aware of your complaint, and must comport with the complaint you make on appeal:

Insurance: In its second appellate issue, Texas Farmers contends . . . it is still entitled to a reversal of the judgment because the portion of the judgment awarding Clack 18% interest pursuant to section 542.060(a) of the Insurance Code is improper. Texas Farmers argues the award is improper because: (1) it is not supported by Clack’s pleadings; and (2) an 18% post judgment interest award as exemplary damages is permitted only on the amount of the underlying insurance claim, not treble damages, attorney’s fees, prejudgment interest, or court costs. In addition, at the conclusion of the argument relating to section 542.060(a), Texas Farmers asserts in a single sentence that, “The claim for exemplary damages is barred because exemplary damages are not permitted under the DTPA or Chapter 541 of the Texas Insurance Code [*9] .” It then states the award under section 542.060(a) was improper because “it compounded the 18% interest annually.” However, we find we need not reach any of these issues because they have not been preserved for our review. . . . Here, in its motion for new trial, Texas Farmers’ complaint regarding any award of exemplary damages is found in the section on meritorious defenses and states, in its entirety: “Even if [Clack’s] claims for exemplary damages are not barred for other reasons, which they are, [Texas Farmers] would show that [Clack] cannot recover said damages under the standards set forth in Chapter 41 of the Tex. Civ. Prac. & Rem. Code and based on protections afforded by the United States Constitution and the Texas Constitution, Defendant further asserts the limits and caps on punitive and exemplary damages as set forth in Chapter 41 of the Tex. Civ. Prac. & Rem. Code [*10] , including but not limited to the limits and caps set forth in Section 41.008 of the Tex. Civ. Prac. & Rem. Code.” There is no reference to exemplary damages as post judgment interest under section 542.060(a) of the Insurance Code or compounding of such interest, and there is no challenge to the award of exemplary damages under the DTPA or Chapter 541 of the Insurance Code. Rather, the only reference is to exemplary damages under Chapter 41 of the Texas Civil Practice and Remedies Code and the federal and state constitutions. The complaint raised by Texas Farmers in the trial court was not sufficiently specific to advise the trial court that Texas Farmers was challenging the portion of the judgment awarding 18% interest under section 542.060(a) of the Insurance Code or the award of exemplary damages under the DTPA or Chapter 541 of the Insurance Code, nor are such complaints apparent from the context. See Tex. R. App. P. 33.1(a)(1). Additionally, the complaints set out in the motion for new trial regarding exemplary damages do not comport with any of the complaints raised in this appeal. . . . Accordingly, Texas Farmers has failed to preserve any of the complaints set forth in its second issue for our review.” Tex. Farmers Ins. Co. v. Clack, No. 04-17-00348-CV, 2018 Tex. App. LEXIS 3068, at *8 (App.-San Antonio May 2, 2018)

The complaint you raise on appeal must be the complaint you raised below:

Declaratory Relief: “Even if all of Promotions’s declaratory claims were dismissed, or had never been asserted, appellants would still face claims and causes of action asserted by Promotions that would subsume the subjects of the requested declarations, yet seek greater relief—the coercive remedies of damages and injunctive relief—that implicate the same “exercise of the right of association” on which appellants’ TCPA motion is predicated. Further, appellants waived any TCPA challenge to these broader claims by failing to raise it through a timely motion. With those broader claims and causes of [*26] action remaining in the case regardless, determination of appellants’ entitlement to TCPA relief against the declaratory claims, claims concerning mere component or subsidiary issues subsumed within the broader claims and causes of action that cannot now be attacked under the TCPA, would resolve a mere legal abstraction having no impact on any interests protected by that statute—the hallmark of unconstitutional advisory opinion—or alternatively would have been rendered moot in the inception by the limited scope of appellants’ motion.” Craig v. Tejas Promotions, LLC, No. 03-16-00611-CV, 2018 Tex. App. LEXIS 3126, at *25-26 (App.—Austin May 3, 2018)

Interception of communications: “In issue five, M.F. contends the trial court abused its discretion “in determining that [J.F.] did not unlawfully intercept [M.F.]’s electronic communications. . . .Although M.F. argued in her brief in support of her amended motion that J.F. illegally intercepted M.F.’s electronic communications, the motion itself sought to disqualify J.F.’s attorney and made no allegations against J.F. M.F. has failed to demonstrate on appeal that she preserved error with respect to her allegations against J.F., and she has failed to show that the trial court made a ruling regarding her purported allegations specifically against J.F. The trial court’s ruling on the motion to disqualify opposing [*24] counsel dealt solely with J.F.’s counsel and did not address M.F.’s allegation that J.F. individually violated the law by intercepting M.F.’s text or email communications. See Tex. R. App. P. 33.1. We overrule issue five.” In the Interest of R.F., No. 09-16-00240-CV, 2018 Tex. App. LEXIS 3130, at *23-24 (App.-Beaumont May 3, 2018)

You have to comply with the pertinent rules:

Evidence: “Knoblauch did not actually offer anything into evidence at this point, not the packet in its entirety or any of the individual documents. He also did not establish any predicate for their admission. The exchange regarding the bench brief occurred at the beginning of the third [*10] day of trial testimony, but it was not until days later that Knoblauch offered any of the packet documents into evidence. At that time, Knoblauch offered the letter and then the attached affidavit as separate exhibits, and the trial court admitted both. As the trial court found in its findings of fact, however, at no point did Knoblauch offer into evidence the packet in its entirety or the proposed order itself or obtain a ruling excluding these items from evidence. Accordingly, Knoblauch did not preserve error regarding admission of these documents during trial.In the Interest of J.C.K., No. 14-17-00082-CV, 2018 Tex. App. LEXIS 3039, at *9 (App.-Houston [14th Dist.] May 1, 2018)

There were several cases in which courts held that parties did not preserve error because they did not raise the complaint in the trial court, but I won’t burden you with those here.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, 4/28/18

April 28, 2018

Dear All:

The Supreme Court recently confirmed that a party “was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive” in order to preserve an issue, reminding us that “parties are free [on appeal] to construct new arguments in support of issues properly before the Court”:

Anti-SLAAP: “The court of appeals found that Adams failed to preserve arguments based on community or environmental well-being by failing to raise them in the trial court. S.W.3d at n.4, 2016 Tex. App. LEXIS 6840. We are not convinced that Adams failed to argue community and environmental well-being in the trial court, as he expressly mentioned these concerns at the hearing on the motion to dismiss. Further, the court of appeals imposed too strict a view of error preservation in this context. Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case. Adams raised as an issue in the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about a matter of public concern. He was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive. See Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”);” Adams v. Starside Custom Builders, LLC, No. 16-0786, 2018 Tex. LEXIS 327, at *14-15 (Apr. 20, 2018)

In light of the Supreme Court’s recent Menchada decision, with its several competing opinions about conflicting jury answers, the following courts’ of appeals decision that a party preserved an objection to conflicting jury answers bear noting–as does one court’s holding that the objecting party did not preserve its complaint about the trial court not giving the parties enough time to object to the verdict:

Conflicting Jury Answers: “We first consider Rios’s threshold argument that Burnett waived her first issue regarding the perceived irreconcilable conflict in the jury’s verdict by not objecting before the jury was discharged. . . . Burnett acknowledges that generally a party must raise an objection under Texas Rule of Civil Procedure 295 before the trial court accepts the verdict or the conflict in the jury’s answers is waived. See Tex. R. Civ. P. 295. According to Burnett, trial counsel promptly objected to the conflicting jury answers at the first opportunity. Burnett also contends that the appellate rules, such as preservation under rule 33.1, are to be liberally construed in favor of the right to appeal. The trial transcript contains the notation “(Jury released)” just before Burnett’s trial counsel informed the trial court that he “wanted to put an objection on the record” and objected [*8] to the entry of the verdict. However, the trial court did not announce on the record that the jury had been released until after Burnett had lodged her objection. The trial court also clearly indicated its awareness of the issue and that it anticipated Burnett’s filing “a post-verdict motion to that effect . . . if you care to do it.” Unlike in Cressman Tubular Products, Burnett filed such motion and expressly requested a new trial on the conflicting-findings issue, and the trial court denied Burnett’s motion. Cf. 322 S.W.3d at 462-63. Based on this record, we do not find waiver.” Burnett v. Rios, No. 14-17-00438-CV, 2018 Tex. App. LEXIS 2660, at *7-8 (App.—Houston [14th Dist.] Apr. 17, 2018)

Jury Verdict: “ In her second issue, Burnett argues that a new trial should be granted because the trial court preemptively accepted the verdict sua sponte without permitting objections and prematurely released the jury. Rios responds that Burnett also waived this issue. This time, we agree. The record does not reveal that Burnett objected to the trial court’s allegedly defective conduct either verbally at the time or in her written motion for new trial, or that the trial court expressly or implicitly ruled on her complaint. We conclude that this issue was not properly preserved. See Tex. R. App. P. 33.1(a);” Burnett v. Rios, No. 14-17-00438-CV, 2018 Tex. App. LEXIS 2660, at *16-17 (App.—Houston [14th Dist.] Apr. 17, 2018)

Conflicting Jury Answers: “Under his sole issue, Sauceda also asserts that the trial court erred in failing to ask the jury to resolve the alleged conflict in the findings that Sauceda was not entitled to damages for past physical pain and mental anguish and future physical pain and mental anguish, and the jury’s awarding Sauceda of $3,750 for medical expenses incurred in the past. Sauceda did not request that the trial court ask the jury to resolve conflicts in its findings before the jury was dismissed, so Sauceda did not preserve error on this complaint. See Tex. R. Civ. P. 295; Meek v. Onstad, 430 S.W.3d 601, 605-06 (Tex. App.-Houston [14th Dist.] 2014, no pet.); Cressman Tubular Products Corp. v. Kurt Wisemail Oil & Gas Ltd., 322 S.W.3d 453, 462 (Tex. App.-Houston [14th Dist.] 2010, pet. denied). Even if Sauceda [*10] had preserved error on this argument, we would conclude that the trial court did not err in failing to instruct the jury to resolve conflicts in the findings because the jury reasonably could have concluded that Sauceda was entitled to recover for his past medical expenses but did not have any pain warranting a damages award. See Enright, 330 S.W.3d at 402. We overrule Sauceda’s conflict-in-the-jury-findings issue.” Sauceda v. Hess, No. 14-16-00586-CV, 2018 Tex. App. LEXIS 2842, at *9 (App.—Houston [14th Dist.] Apr. 24, 2018)

In an oil and gas case, the Supreme Court also recently found a party preserved error through its arguments in the trial court:

Oil and Gas: “But without explaining why its reasoning would not also apply to the 28-Acre Tract, the court’s judgment awarded the trial court’s royalty allocations in the 28-Acre Tract instead of 1/4 to each party. Menser argues that the court of appeals erred by awarding her only a 3/32 royalty interest in the 28-Acre Tract, instead of a 1/4 royalty interest. The parties agree that the 28-Acre Tract is part of the 206 acres that the earlier deeds conveyed as the First Tract and that Menser conveyed to Johnson while reserving 1/2 one-half of the minerals, including one-half of the royalties she owned at the time. In the court of appeals, Menser argued that the Perrymans never requested an interest in the 28-Acre Tract in their motions for summary judgment and therefore the trial court’s judgment assigning [*40] them any interest in the tract was in error. The court of appeals held that Menser waived her argument by failing to raise it in the trial court. 494 S.W.3d at 750. Although the court of appeals agreed with Menser’s argument regarding the division of the royalty interests in the 178-Acre Tract-and modified the trial court’s judgment to reflect that-it did not modify the relative interests in the 28-Acre Tract. Id. at 752. On motion for rehearing and on motion for rehearing en banc, Menser argued that the court of appeals should modify its judgment to correct that mathematical error. The court denied the motions. In this Court, Menser reurges her rehearing arguments. We agree that, even if Menser waived her argument that the Perrymans owned no interest in the 28-Acre Tract, she did not waive her argument that the court of appeals should have reexamined the division of royalty interests in that tract. Menser consistently argued that the Perrymans’, Spartan’s, and Menser’s interests all stem from the land in Ben’s First Tract and that Duhig applied to estop Gary and Nancy from claiming more than they could convey to remedy their breach of warranty. Although we disagree that Duhig applies, we agree with Menser’s [*41] ultimate claim that the royalty interests are divided equally among the parties: Leasha, Gary and Nancy, and Menser each own a 1/4 royalty interest in both tracts, Spartan owns a 1/4 royalty interest in the 178-Acre Tract, and third parties (presumably, the Wrights) own a 1/4 royalty interest in the 28-Acre Tract.” Perryman v. Spartan Tex. Six Capital, No. 16-0804, 2018 Tex. LEXIS 350, at *39-41 (Apr. 27, 2018)

You can first raise some complaints on appeal–like legal insufficiency in a bench trial and lack of subject matter jurisdiction:

Legal Insufficiency: “By her third issue, Robinson argues that the evidence supporting the trial court’s award of attorney’s fees is legally insufficient. Appellees respond that Robinson did not preserve this complaint for appeal because she failed to raise the issue in her motion for new trial. But in a civil case tried without a jury, a complaint regarding the sufficiency of the evidence “may be made for the first time on appeal[.]” Tex. R. App. P. 33.1(d); . . . .”An argument that there was no evidence during a bench trial that attorney’s fees were reasonable is a sufficiency-of-the-evidence complaint that may be raised for the first time on appeal.” Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Robinson was not required to present her challenge regarding attorney’s fees to the trial court.” Robinson v. Ochoa, No. 13-16-00357-CV, 2018 Tex. App. LEXIS 2431, at *16-17 (App.—Corpus Christi Apr. 5, 2018)

Legal Insuffficiency: “In his fourth issue, Scott contends the trial court erred by awarding Michelle “costs incurred enforcing and collecting the judgment” when such costs “were not pleaded for or proven.” Specifically, Scott argues (1) the Motion “does not plead or pray for future costs, fees, and expenses, including attorney’s fees, to be incurred in future collections actions,” and (2) the trial court “entered a judgment for future costs, expenses, and fees despite the fact that no pleadings or evidence was [*15] offered in support of such an award.”. . . Texas Rule of Appellate Procedure 33.1(d) provides in part, “In a civil 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). Therefore, we conclude Scott’s complaint of “no evidence” to support “future costs, fees, and expenses” was not “waived.”” Riley v. Riley, No. 05-17-00385-CV, 2018 Tex. App. LEXIS 2644, at *14-15 (App.—Dallas Apr. 16, 2018)

Subject matter jurisdiction: “Beyond its sole issue, though, Brownsville also challenges Rendon’s declaratory action. Brownsville did not contest this cause of action in its plea to the jurisdiction in the trial court or in its initial brief to this Court, but instead asserts for the first time in its reply brief that Rendon failed to exhaust administrative remedies for his declaratory claims. Ordinarily, an appellant must preserve error by presenting its complaint to the trial court in a timely, specific manner and obtaining a ruling thereon. See Tex. R. App. P. 33.1(a). Also, a party may not ordinarily present arguments for the first time in its reply brief. Cebcor Serv. Corp. v. Landscape Design & Constr., Inc., 270 S.W.3d 328, 334 (Tex. App.—Dallas 2008, no pet.); see Tex. R. App. P. 38.3; Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex. 1996). However, exhaustion of administrative remedies is an issue of subject matter jurisdiction. Clint, 487 S.W.3d at 558. Subject matter jurisdiction cannot be created by the parties’ consent or waiver, and parties may challenge subject matter jurisdiction for the first time on appeal. Id. Moreover, “we are obligated to review sua sponte issues affecting jurisdiction.” M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); see Rusk, 392 S.W.3d at 95 (approving review of sovereign immunity on interlocutory appeal from challenge of an expert report, even though no plea to the jurisdiction had been filed). Accordingly, we address Brownsville’s argument concerning Rendon’s declaratory claims.“ Brownsville Indep. Sch. Dist. v. Rendon, No. 13-17-00628-CV, 2018 Tex. App. LEXIS 2587, at *10-11 (App.—Corpus Christi Apr. 12, 2018)

When you adequately and timely assert your complaint, you have preserved it:

Attorney’s Fees: “Turoff contends that Milliken and Mulhall’s challenge to the award of attorney’s fees must fail because they stipulated in the trial court to the amount of Turoff’s reasonable and necessary attorney’s fees. In effect, Turoff maintains that the stipulation waived Milliken and Mulhall’s complaint about Turoff’s failure to segregate. We disagree. . . . [A] stipulation to the amount of reasonable and necessary attorney’s fees for Turoff’s case did not waive Milliken and Mulhall’s complaints about factors other than reasonableness and necessity that must be considered in awarding fees under the UDJA. . . .. The stipulation therefore did not waive Milliken and Mulhall’s complaint that the trial court erred in awarding the full amount of Turoff’s unsegregated attorney’s fees. Moreover, Milliken and Mulhall brought this problem to the trial court’s attention both before and after the stipulation. Before entering into the stipulation, Milliken and Mulhall used their cross-examination of Turoff’s counsel to highlight the failure to segregate attorney’s fees. After entering into the stipulation, Milliken and Mulhall complained in their response to Turoff’s motion for judgment that Turoff had failed to segregate attorney’s fees.” Milliken v. Turoff, No. 14-17-00282-CV, 2018 Tex. App. LEXIS 2652, at *6-8 (App.—Houston [14th Dist.] Apr. 17, 2018)

Expert: “At the outset, we address appellees’ contention appellants failed to preserve their challenge to Rich’s expert testimony because they did not re-urge their objection during Rich’s trial testimony. Appellants filed a motion to exclude Rich’s testimony prior to deposing him. The trial court denied the motion. Appellants then filed a motion to reconsider after deposing Rich. At the hearing, appellants referred to some of Rich’s deposition testimony in urging their objection, and appellees introduced Rich’s file into evidence. At the close of the hearing, the trial court announced it was not going to strike Rich, but would defer ruling, hear Rich’s testimony, and rule accordingly at the time of trial. At the outset of trial, appellants again requested the trial court to reconsider its ruling on the motion to exclude. In response, the trial court stated, “I’m going to overrule or deny your [*13] Motion for Reconsideration.” HN4 To preserve a complaint that expert evidence is unreliable, a party must object to the evidence before trial or when the evidence is offered. See Maritime Overseas Corp. v Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Because appellants raised their objection to Rich’s testifying as an expert both before trial and again at the outset of trial and the trial court denied their motion, we conclude they adequately preserved error for this appeal.” Baker v. Habeeb, No. 05-16-01209-CV, 2018 Tex. App. LEXIS 2721, at *12-13 (App.—Dallas Apr. 18, 2018)

Your objection must be timely:

Evidence: “To preserve a complaint about the admission of evidence for appeal, a party must make a timely and specific objection in the trial court. Tex. R. App. P. 33.1; Tex. R. Evid. 103. . . . During trial, the appellants did not object to any of questions about August’s criminal history. On appeal, the appellants contend that error was “properly preserved” by the motion in limine. A motion in limine does not preserve error on evidentiary rulings because it does not seek a ruling on admissibility.” . . . . When a trial court has denied a motion in limine, a party must object when the evidence is offered to preserve error for appellate review. . . . Because the appellants did not object at trial when August was questioned about his criminal history, we conclude that they did not preserve error as to the admission of evidence regarding his prior convictions. We overrule the third issue.” True Level Masonic Lodge #226, Inc. v. Most Worshipful Prince Hall Grand Lodge, No. 01-16-00339-CV, 2018 Tex. App. LEXIS 2360, at *16-17 (App.—Houston [1st Dist.] Apr. 3, 2018)

Evidence: “During its case-in-chief, Wilmington admitted three exhibits, with multiple subparts, in support of its foreclosure claim, and then rested without calling witnesses. When Wilmington offered its exhibits for admission, the McKeehans raised two objections: (1) that the business-records affidavit supporting the records contained a legal conclusion and (2) that the printouts of payoff and per diem print screens were hearsay. The trial court overruled these objections, to which the McKeehans’ counsel responded, “I think those are the only two that I have any issues with.” The trial court then admitted Exhibits 1, 2, and 3, along with all of their subparts. Wilmington then rested. The McKeehans then moved for a directed verdict, arguing that the Exhibit 1 should be excluded because Wilmington had not responded to their request for disclosure regarding how it had calculated the McKeehans’ default. However, the McKeehans did not raise non-disclosure as a reason for excluding Exhibit 1 at the time it was offered and admitted, thus the argument that it should have been disclosed is waived.” McKeehan v. Wilmington Sav. Fund Soc’y, FSB, No. 01-16-00534-CV, 2018 Tex. App. LEXIS 2601, at *6 (App.—Houston [1st Dist.] Apr. 12, 2018)

You must bring your complaint to the attention of the trial court, and obtain a ruling:

Continuance: “Although attached to Admal’s motion for continuance was a notarized “verification” that the facts contained in the motion were true and correct, neither the motion nor the verification contains a discussion of the evidence Admal needed a continuance to seek. In addition, nothing in the record shows Admal brought his motion for continuance to the attention of the trial court. The mere filing of the motion does not show that it was presented to the court. See Smith v. El Paso Veterans Transitional Living Ctr., No. 08-17-00181-CV, 2018 Tex. App. LEXIS 2019, 2018 WL 1407087, at *1 (Tex. App.—El Paso Mar. 21, 2018, no pet. h.). There is also nothing in the record to show the court ruled on the motion. Admal has failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a).” Admal v. Ventures Tr. 2013 I-H-R, No. 05-16-00912-CV, 2018 Tex. App. LEXIS 2621, at *4 (App.—Dallas Apr. 12, 2018)

Restraining Order: “In her third issue, Pedroza contends that the County Court failed to consider or act on her motion for a restraining order against Tenet based on Tenet’s alleged violation of a consent order issued by the Consumer Financial Protection Bureau. In order to preserve a complaint for appellate review, the record must show that the party brought the complaint to the attention of the trial court [*7] by making a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion. See Tex.R.App.P. 33.1(a). Merely filing a motion with the trial court clerk is insufficient to show that the party brought the motion to the trial court’s attention or requested a ruling. In re Davidson, 153 S.W.3d 490, 491 (Tex.App.–Amarillo 2004, orig. proceeding). There is nothing in the record to show that Pedroza ever presented this motion to the County Court or requested a ruling. Consequently, she has failed to preserve error. Issue Three is overruled.” Pedroza v. Tenet Healthcare Corp., No. 08-16-00221-CV, 2018 Tex. App. LEXIS 2540, at *6-7 (App.—El Paso Apr. 11, 2018)

Your objection must be sufficiently specific:

Evidence: “In this case, the objection Father raised at trial to Caseworker One’s testimony asked that all of her testimony be stricken, and he did not limit his request to that testimony relevant to the Department’s alleged failure to comply with the obligations the Department owed Father to comply with his requests for discovery. Generally, if some portion of the evidence to which an objection is made is admissible, a trial court may overrule an objection that is directed at the evidence as a whole when the party opposing its admission fails to specify those portions of the evidence that are inadmissible. See Tex. R. App. P. 33.1(a)(1)(A) (Error Preservation) (explaining to preserve error an objection must be sufficiently specific to inform the trial court of the complaint); . . . . Even if we assume that Father was entitled to have some portion of Caseworker One’s testimony excluded due to the Department failure to fully and properly respond to Father’s discovery, the trial court was not required to grant the request that Father’s attorney made to strike all of Caseworker One’s testimony. . . . Portions of Caseworker One’s testimony that did not depend on the information the Department failed to disclose were clearly admissible. For example, Caseworker One’s testimony that she explained the requirements of the family service plan to Father is testimony that was both relevant and admissible during the trial. See Tex. R. Evid. 401, 402. Because the trial court properly overruled Father’s request to strike Caseworker One’s testimony in its entirety, the trial court did not abuse its discretion when it overruled Father’s request. Therefore, we overrule issue six.” In the Interest of B.A.M., No. 09-17-00390-CV, 2018 Tex. App. LEXIS 2451, at *31-32 (App.—Beaumont Apr. 5, 2018)

You must comply with other pertinent rules:

Evidence: “Williams sought to introduce, and appellees sought to exclude, the entire investigative report of the DOL. The trial court admitted the report with the exception of the DOL’s conclusions. To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. . . . Thus, when evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence in the record in order to complain of the exclusion on appeal. Tex. R. Evid. 103(a),(b); . . . . An offer of proof preserves error for appeal if: (1) it is made before the court, the court reporter, and opposing counsel, outside the presence of the jury; (2) it is preserved in the reporter’s record; [*6] and (3) it is made before the charge is read to the jury. . . .When no offer of proof is made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exception. . . . A formal bill of exception must be presented to the trial court for its approval, and, if the parties agree to the contents of the bill, the trial court must sign the bill and file it with the trial court clerk. Tex. R. App. P. 33.2(c); . . .Failure to demonstrate the substance of the excluded evidence results in waiver. Tex. R. App. P. 33.1(a)(1)(B); . . . . In this case, Williams did not make an offer of proof or bill of exception regarding the excluded evidence. Therefore, Williams did not assure the DOL report was included in the trial record itself, although it was attached to an earlier response to a motion for summary judgment and was discussed outside the presence of the jury during the trial. In all events, we need not decide whether Williams preserved his complaint concerning the DOL report and potentially create new law on the issue of error preservation, because Williams has failed to demonstrate that any error in excluding the DOL’s conclusion would have been harmful.” Williams v. FlexFrac Transp., LLC, No. 05-16-01032-CV, 2018 Tex. App. LEXIS 2825, at *5-6 (App.—Dallas Apr. 20, 2018)

Evidence: “Dimock next asserts that the trial court committed reversible error by refusing to allow Dimock to make an offer of proof at trial. At trial, Dimock sought to re-offer evidence which was previously submitted for consideration as to the summary judgment orders. Dimock’s counsel stated that the offer of proof also included additional evidence which had been produced or discovered after the summary judgments were entered. He stated, “We just want to recite those to you so that you have an opportunity to reconsider your rulings, reopen the evidence and allow a trial on that.” [*36] Sutherland objected to the presentment of additional evidence. The trial court denied Dimock’s request. An offer of proof serves to preserve errors in excluding evidence. Tex. R. Evid. 103. Dimock did not identify what evidence, if any, had been erroneously excluded by the trial court.” Dimock Operating Co. v. Sutherland Energy Co., LLC, No. 07-16-00230-CV, 2018 Tex. App. LEXIS 2865, at *35-36 (App.—Amarillo Apr. 24, 2018)

Factual Sufficiency: “The Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting a complaint on appeal regarding the factual sufficiency [*3] of the evidence supporting a jury finding. . . . Because Mother has not preserved a factual sufficiency challenge to the jury’s verdict, we overrule her sole point of error on appeal.” In the Interest of E.J.Z., No. 06-17-00109-CV, 2018 Tex. App. LEXIS 2391, at *2-3 (App.—Texarkana Apr. 4, 2018)

Summary Judgment: “As a preliminary matter, we must first set the parameters of what is presently before us to review. Newfield argues in its briefing that Martin waived any arguments on appeal that: (1) the duty to protect the non-unitized Martin Leases acres from drainage was triggered when the Martin Unit well was drilled in 2008, or (2) the lease clause quoted above is ambiguous, because neither argument was made to the trial court. We agree. Issues a non-movant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment. [*8] McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). Our review of Martin’s response to Newfield’s motions for summary judgment show that Martin focused their arguments on whether Newfield’s duty to protect against drainage was triggered when Newfield began drilling the Simmons Unit, not the Martin Unit. Furthermore, nothing in Martin’s response asserts that the clauses at issue were ambiguous. Accordingly, without regard to their merits, we conclude that those arguments are waived, and we will not consider them on appeal. See id.” Martin v. Newfield Expl. Co., No. 13-17-00104-CV, 2018 Tex. App. LEXIS 2435, at *7-8 (App.—Corpus Christi Apr. 5, 2018)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com