Error Preservation in Texas Civil Cases, August 13, 2018

August 13, 2018

Dear All:

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

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

Evidence

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

Evidence

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

Evidence
Evidence

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

Attorney’s Fees

Evidence

You have to get a ruling on your complaint

Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You have to get a ruling on your complaint:

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

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

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

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

Yours, Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

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Error Preservation in Texas Civil Cases, August 4, 2018

August 4, 2018

Dear All:

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

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

Pre-emption

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

Evidence

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

Judgment Nunc Pro Tunc

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

Texas Citizen’s Participation Act

You have to comply with the pertinent rules

Affirmative Defense/Summary Judgment

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

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

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

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

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

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

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

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

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

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

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

You have to comply with the pertinent rules:

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

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

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

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

All for now.  I hope this helps.

Yours,

Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, July 29, 2018

July 29, 2018

Dear All:

Here is a list of those things covered below-marked by the coincidence of several cases dealing with preserving error concerning the failure to segregate attorney’s fees:

Both the majority opinion and concurrence, which focus us on the issues involved in preserving an objection about the failure to segregate attorney’s fees in a bench trial.

Attorney’s Fees

In one of those weird coincidences we see sometimes, the Fort Worth Court seemed to underscore the Anderton concurrence by holding that a complaint about the legal sufficiency of the evidence in a bench trial may be raised for the first time on appeal to challenge the failure to segregate fees.

Attorney’s Fees

And in yet a further weird coincidence, the Houston First Court held that a failure to object in the summary judgment response about the lack of segregation of fees  waived that objection:

Attorney’s Fees

Complaints about the immateriality of jury findings can be raised in a jnov motion.

Jury findings

Some complaints, like the lack of subject matter jurisdiction, may be first raised on appeal, and one does not have to object to post trial findings of fact concerning matters previously decided in pre-trial summary judgment practice.

Subject matter jurisdiction

Findings and Conclusions

When a statute says you may challenge a decision on appeal for a particular reason, you may–and we all need to keep in mind that additional arguments may be raised on appeal to support an issue that was raised in the trial court.

Good cause

In some instances, an implied ruling occurs, which preserves error.

Innocent Owner

If you raise your discovery complaint in the trial court you will have preserved it.

Discovery

But not if your good objections to discovery get lost in your overabundance of unfounded objections, in which case you will have waived all your objections.

Discovery

You have to comply with the pertinent rules.

Pleading
Special Appearance

Here is a case-both majority opinion and concurrence-which focuses us on the issues involved in preserving an objection about the failure to segregate attorney’s fees in a bench trial. Note there is a split of authority among the courts of appeals:

Attorney’s Fees: “James and the Trustee did not object to Jennifer’s failure to segregate her attorney’s fees until after the trial court made its ruling awarding her fees. Jennifer argues that the objection was too late to preserve error. James and the Trustee respond that they did not waive error because they objected before the trial court rendered final judgment. HN5 Objections to the failure to segregate can be waived. Green Int’l v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). Generally, an objection must be made “timely” in the trial court to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a)(1). A “timely” objection is “one ‘interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error.'” Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.—Dallas 2015, pet. denied) (quoting Driver v. Conley, 320 S.W.3d 516, 518 n.3 (Tex. App.—Texarkana 2010, pet. denied)). By the time James and the Trustee made their objection, the evidence was closed, trial had concluded, and the trial court had already made its ruling awarding Jennifer her fees. Nonetheless, the objection was made at a time when the trial court could, and did, rule on it, stating in a letter to the parties that “Attorney Fees are not limited to legal work segregated to the declaratory judgment action.” One of our sister courts has noted that “there is as yet no consistent rule about when an objection to the failure to segregate attorneys’ fees must be raised in a case tried without a jury,” Home Comfortable Supplies, Inc. v. Cooper, 544 S.W.3d 899, 908 (Tex. App.—Houston [14th Dist.] 2018, no pet.), and some courts have ruled that an objection to failure to segregate must be made “before the trial court issues its ruling.” Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, 2017 WL 4053943, at *2 (Tex. App.—Fort Worth Sept. 14, 2017, no pet.) (mem. op.); see also Cooper, 544 S.W.3d at 908-09 (collecting cases). But on this record, we conclude James and the Trustee did not waive their appellate complaint.” Anderton v. Green, No. 05-17-00024-CV, 2018 WL 3526162, 2018 Tex. App. LEXIS 5573, at *20 n.4 (App.—Dallas July 23, 2018)

Attorney’s fees (concurrence): “In my view, appellants’ complaint about whether Jennifer failed to segregate her recoverable attorney’s fees is substantively a complaint about the sufficiency of the evidence to support the amount awarded. See Tony Gullo Motors I, L.P. v. Chapa, 22 S.W.3d 299, 314 (Tex. 2006) (“Unsegregated attorney’s fees for the entire case are some evidence of what the segregated amount should be.”) (footnote omitted). . . .As such, that issue could have been raised for the first time on appeal from this nonjury case. Tex. R. App. P. 33.1(d). Therefore, future appellate courts should not need to address the error preservation issues footnote four discusses when resolving whether an attorneys’ fees claimant property segregated recoverable attorneys’ fees from non-recoverable attorneys’ fees when a trial court tries that issue.” Anderton v. Green, No. 05-17-00024-CV, 2018 WL 3526162, ____ Tex. App. LEXIS ____ (App.—Dallas July 23, 2018) (Whitehill, J., concurrence).

In one of those weird coincidences we see sometimes, the Fort Worth Court seemed to underscore the Anderton concurrence by holding that a complaint about the legal sufficiency of the evidence in a bench trial may be raised for the first time on appeal to challenge the failure to segregate attorney’s fees.

Attorney’s Fees: “The appellees contend that Crockett failed to preserve the bulk of her arguments concerning the trial court’s fee award. Indeed, the record shows that Crockett did not complain to the trial court concerning the propriety of the award of attorney’s fees. Therefore, she failed to preserve any complaints concerning that award except for complaints about the legal or factual insufficiency of the evidence, which may be raised for the first time on appeal in a civil nonjury case. See Tex. R. App. P. 33.1(a)(1), (d); see also [*9] Petrohawk Props., L.P. v. Jones, 455 S.W.3d 753, 783 (Tex. App.—Texarkana 2015, pet. dism’d) (holding that complaint that attorney-fee award was not authorized by statute was subject to rules of preservation); Nolte v. Flournoy, 348 S.W.3d 262, 273 (Tex. App.—Texarkana 2011, pet. denied) (holding that appellant failed to preserve complaint that trial court abused its discretion by failing to explain the basis of its award of sanctions); Sherman v. Triton Energy Corp., 124 S.W.3d 272, 278-79 (Tex. App.—Dallas 2004, pet. denied) (holding that appellants failed to preserve complaint that final judgment contradicted the trial court’s oral pronouncement on motion for sanctions). We therefore overrule all of Crockett’s issues concerning the trial court’s award of attorney’s fees except for her fourth issue, in which she challenges the legal sufficiency of the evidence supporting the amount of the trial court’s fee award.” Farr v. Arlington Indep. Sch. Dist., No. 02-17-00196-CV, 2018 Tex. App. LEXIS 5534, at *8-9 (App.—Fort Worth July 19, 2018)

And in yet a further weird coincidence, the Houston First Court held that a failure to object in response to a motion for summary judgment because of a lack of segregation of fees waived that objection:

Attorney’s fees: “Pacific argues that the trial court erred in granting attorney’s fees to Fidelity because (1) Fidelity failed to segregate its fees; . . . . “Generally, a party seeking attorney’s fees must segregate those fees incurred in connection with a claim that allows their recovery from fees incurred in connection with claims for which no such recovery is allowed.” Hill v. Premier IMS, Inc., No. 01-15-00137-CV, 2016 Tex. App. LEXIS 4911, 2016 WL 2745301, at *8 (Tex. App.—Houston [1st Dist.] May 10, 2016, no pet.) (mem. op.) (quoting Alief Indep. Sch. Dist. v. Perry, 440 S.W.3d 228, 245 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)). “Settled law, however, holds that a party waives any error arising from possibly awarding nonrecoverable fees when the complaining party does not object to failure to segregate between legal services for which fees are properly recoverable and those for which no recovery of fees is authorized.” Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 516 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 823 (Tex. 1985) (“Because [the party] did not object to the failure of the trial court to segregate the attorney’s fees between the claims, they have waived that point.”). Pacific did not object to the lack of segregation or otherwise bring the issue to the trial court’s attention prior to its granting summary judgment. Pacific has therefore waived this issue. See Haden, 32 S.W.3d at 516-17; see also Am. First Nat. Bank v. Jordan-Lewis Dev., L.P., No. 01-09-00990-CV, 2011 Tex. App. LEXIS 5347, 2011 WL 2732779, at *8 (Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.) (mem. op.) (“Because AFNB’s objection to the failure to segregate attorney’s fees was not raised before the trial court rendered [*28] judgment, AFNB has waived this objection on appeal.”). . . . Pacific also argues that the trial court erred in awarding attorney’s fees to Norman because Norman failed to segregate its fees. Pacific did not complain that Norman failed [*34] to segregate its fees prior to the trial court granting summary judgment. Having failed to object to the lack of segregation or otherwise bring the issue to the trial court’s attention prior to its granting summary judgment, Pacific has waived this issue.” Pac. Energy & Mining Co. v. Fid. Expl. & Prod. Co., No. 01-17-00594-CV, 2018 Tex. App. LEXIS 5586, at *26-28, 34 (App.—Houston [1st Dist.] July 24, 2018)

Complaints about the immateriality of jury findings can be raised in a jnov motion :

Jury findings: “Galvan asserts that the trial court erred by signing a judgment in favor of the estate on its wrongful eviction claim. Pointing to Barboza’s bankruptcy proceedings, Galvan contends that the jury’s liability finding is immaterial because Barboza rejected the lease. N. 2 N. 2 Galvan preserved this issue for our review by raising it in her post-verdict motion for judgment notwithstanding the verdict. See BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402 (Tex. 2017) (“BP preserved error on the immateriality issue by raising these concerns post-verdict in a motion for judgment in disregard, in a motion for judgment notwithstanding the verdict, and in a motion for new trial.”).” Galvan v. Garcia, No. 14-16-00162-CV, 2018 Tex. App. LEXIS 5712, at *6 (App.—Houston [14th Dist.] July 26, 2018)

Some complaints, like the lack of subject matter jurisdiction, may be first raised on appeal, and one does not have to object to post trial findings of fact concerning matters previously decided in pre-trial summary judgment practice:

Subject matter jurisdiction: “Finally, in a letter brief, the City seems to suggest that the district court has subject-matter jurisdiction because Pixler was the one who [*7] requested the administrative hearing and appeared and participated in it, but the issue here is subject-matter jurisdiction, which can never be conferred by consent or waiver, not personal jurisdiction, which a party waives by generally appearing. See Trenz v. Peter Paul Petrol. Co., 388 S.W.3d 796, 800 (Tex. App.—Houston [1st Dist.] 2012, no pet.). The same holds true for the City’s contention that Pixler “affirmatively invok[ed]” the district court’s subject-matter jurisdiction by filing counterclaims. HN4 While it is certainly true that a party must allege facts that affirmatively demonstrate a court’s jurisdiction to hear the claim, see Tex. Ass’n of Bus., 852 S.W.2d at 446, a party has no power, by its allegations or otherwise, to vest a court with subject-matter jurisdiction when none exists. See Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 541, 174 S.W.2d 598, 600 (Tex. 1943) (“Jurisdiction of the subject matter exists by operation of law only . . . .”).” In re Pixler, No. 02-18-00181-CV, 2018 Tex. App. LEXIS 5791, at *6-7 (App.—Fort Worth July 26, 2018)

Findings and Conclusions: “Silvia argues [*11] that Eleazar waived his challenge to the trial court’s pretrial partial-summary-judgment determination that she established the separate character of DST and ESBEC as a matter of law. She contends that to pursue this issue on appeal Eleazar was required to object to the trial court’s post-trial findings of fact which support the legal conclusion that he gifted his community-property interest in DST and ESBEC to her, transforming them into her separate property. Not so. While a partial summary judgment is an interlocutory ruling that is subject to revision while the trial court retains its plenary power, the court nevertheless cannot determine prior to trial that certain issues have been established as a matter of law, conduct the trial on that basis, and then withdraw its ruling without allowing the parties a fair opportunity to present their positions on issues no longer taken to be established. That happened in this case. Eleazar moved for reconsideration of the partial summary judgment on the gift issue immediately before trial began, and the trial court denied that motion. Then during trial, Silvia’s counsel objected to evidence relating to [*12] dividing the value of ESBEC on the basis that it already had been confirmed as Silvia’s separate property. The trial court sustained the objection. We conclude that the trial court decided the characterization of DST and ESBEC as Silvia’s separate property as a matter of law based on the evidence presented in the motion for partial summary judgment. Under the particular circumstances of this case, in which Eleazar was not permitted a fair opportunity to litigate the fact issues underlying the pretrial determination that he had gifted his interest in DST and ESBEC, thus making it Silvia’s separate property as a matter of law, the trial court could not transform its pretrial ruling as a matter of law into a post-trial ruling based on a resolution of disputed facts. Eleazar has properly challenged the trial court’s ruling as a matter of law that DST and ESBEC were the separate property of Silvia.” Maldonado v. Maldonado, No. 01-16-00747-CV, 2018 Tex. App. LEXIS 5582, at *10-12 (App.—Houston [1st Dist.] July 24, 2018)

When a statute says you may challenge a decision on appeal for a particular reason, you may–and we all need to keep in mind that additional arguments may be raised on appeal to support an issue that was raised in the trial court:

Good cause: “Riou contends the Commissioner’s decision to affirm NEISD’s termination of Riou’s continuing contract is not supported by [*14] substantial evidence. Specifically, Riou argues that because §21.156 defines good cause as “the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state,” NEISD needed to present evidence of the standards of professional conduct recognized and applied in other similarly situated school districts. See Tex. Educ. Code Ann. § 21.156. Integral to this contention is Riou’s argument that the good cause per se doctrine employed by the IHE and the Commissioner conflicts with the statutory definition of “good cause” found in § 21.156.

NEISD argues that Riou forfeited her argument that the wrong standard was used to determine whether good cause existed to terminate her contract because she failed to explain to the school board that the good cause per se standard used by the IHE improperly departs from § 21.156’s definition of good cause. Accordingly, NEISD argues Riou failed to exhaust administrative remedies and should not be permitted to argue on appeal that the IHE and the Commissioner should not have used the good cause per se standard in determining that Riou’s termination was sufficiently supported by the evidence.

We conclude NEISD’s contention [*15] that Riou may not argue the insufficiency of the evidence because she did not articulate her specific argument regarding the application of the good cause per se doctrine before the school board is without merit. Riou’s argument regarding the Commissioner’s use of the good cause per se standard is part of her contention that the Commissioner’s decision is not supported by substantial evidence. NEISD had the initial burden to present sufficient evidence that good cause under § 21.156 existed to terminate Riou’s continuing contract. See id. § 21.256. Moreover, the Education Code provides that a teacher may appeal the school board’s decision to the Commissioner, and the Commissioner may reverse the board’s decision if it is “not supported by substantial evidence.” See id. § 21.303(a). Likewise, the Code provides that a teacher may appeal the Commissioner’s decision and argue that the decision is not supported by substantial evidence. See id. § 21.307(f). Despite NEISD’s efforts to characterize Riou’s argument as “rais[ing] the issue of good cause per se,” Riou’s contention is really a sufficiency of the evidence challenge—one that by statute she is entitled to bring.

Furthermore, although Riou did not specifically explain [*16] to the board that NEISD failed to meet its burden by not presenting evidence of the standards generally recognized and applied in similarly situated school districts, Riou did argue to the board that NEISD failed to meet its burden to show good cause existed to terminate Riou’s continuing contract. “Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.” Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 2018 WL 1883075, at *5 (Tex. 2018) (admonishing a court of appeals for “impos[ing] too strict a view of error preservation”). Riou raised as an issue at the board meeting NEISD’s failure to show good cause existed to terminate her contract; she is not required on appeal to rely on precisely the same argument as that presented to the board. See id.; Greene v. Farmers Ins. Exch., 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.”) (emphasis in original).” N. E. Indep. Sch. Dist. v. Riou, No. 04-17-00592-CV, 2018 Tex. App. LEXIS 5632, at *13-16 (App.—San Antonio July 25, 2018)

In some instances, an implied ruling occurs, which preserves error:

Innocent Owner: “Seymour continued her testimony and in response to being asked if she gave her son “permission to do any of the things that he did with [her] truck,” she answered, “[n]o.” The State renewed the “innocent owner” objection and the trial court responded, “I understand.” n. 3 n. 3 Seymour argues that although the State’s first objection was overruled, the State’s subsequent objection was not ruled on resulting in waiver of the State’s contention that the “innocent owner” defense was not tried by consent. We disagree. A trial court’ ruling may be made expressly or implicitly. Based on its prior ruling, the trial court’s response was an implicit ruling. See Tex. R. App. P. 33.1(a)(2)(A). See also Blum v. Julian, 977 S.W.2d 819, 823 (Tex. App.—Fort Worth 1998, no pet.) (concluding that revision to predecessor of Rule 33.1(a) relaxed the former requirement of obtaining an express ruling).” 2000 GMC Sierra Truck v. State, No. 07-16-00356-CV, 2018 Tex. App. LEXIS 5575, at *9 n.3 (App.—Amarillo July 23, 2018)

If you raise your discovery complaint in the trial court you will have preserved it:

Discovery: “Toyota now seeks relief from the June 25 Order claiming it exceeds the bounds of permissible discovery by imposing a burden on Toyota to produce documents that are irrelevant and disproportionate to the needs of this case. The Reavises urge that Toyota cannot show where it preserved its disproportionate and undue burden objections. We examined the record to determine whether Toyota raised the issues in the trial court, as Toyota’s briefing does not respond to the waiver point and the rules of appellate procedure do not require a party to identify [*5] where it preserved its argument,. See Tex. R. App. P. 33.1. Having done so, we conclude Toyota sufficiently presented its concerns to the trial court, with the exception of Toyota’s complaint concerning the search, which is premature as detailed hereafter.” In re Toyota Motor Sales, U.S.A., Inc., No. 05-18-00734-CV, 2018 Tex. App. LEXIS 5544, at *4-5 (App.—Dallas July 19, 2018)

But not if your good objections to discovery get lost in your overabundance of unfounded objections, in which case you will have waived all your objections:

Discovery: “C. The trial court abused its discretion when it denied De Anda’s motion to compel discovery. De Anda also challenges the trial court’s denial of her motion to compel discovery. As pointed out above, Webster refused to respond to any of De Anda’s discovery requests, including her Rule 194 requests for disclosure, to which  a party may not object. See Tex. R. Civ. P. 194.5 (“No objection or assertion of work product is permitted to a request under this rule.”). With respect to De Anda’s interrogatories and requests for production, Webster lodged the same global, prophylactic string of objections quoted above to every interrogatory and request for production. We have already addressed, and rejected, Webster’s objection that Miranda excuses him from responding to discovery. In addition, HN6 the rules prohibit objections based on privilege. [*20] See Tex. R. Civ. P. 193.2(f). Having reviewed De Anda’s interrogatories and requests for production, we conclude they sought relevant information and documents. See HN7 Tex. R. Evid. 401 (stating that evidence is relevant if it has any tendency to make a fact of consequence to the determination of the action more or less probable than it would be without the evidence); Tex. R. Civ. P. 192.3 (describing scope of discovery).
In sum, many of Webster’s objections were unfounded. We therefore conclude that Webster waived his objections to De Anda’s discovery requests. See Tex. R. Civ. P. 193.2(e) (“An objection . . . that is obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause shown.”). The trial court therefore abused its discretion when it denied her motion to compel discovery. See Rodas v. La Madeleine of Tex., Inc., No. 05-14-00054-CV, 2015 Tex. App. LEXIS 3571, 2015 WL 1611780, at *7 (Tex. App.-Dallas April 10, 2015, pet. denied) (mem. op.) (holding trial court abused discretion when it denied post-arbitration discovery into evident partiality claim).  Because the trial court abused its discretion when it denied her motions for continuance of the summary judgment hearing and to compel discovery responses, we sustain De Anda’s third issue and reverse the trial court’s summary judgment.” De Anda v. Webster, No. 14-17-00020-CV, 2018 Tex. App. LEXIS 5727, at *19-20 (Tex. App.-Houston [14th Dist.] July 26, 2018)

You have to comply with the pertinent rules:

Pleading: “The County responds by pointing out that Appellants not only failed to plead a 1983 claim in their Petition, but also failed to request permission from the trial court to amend their petition to add such a claim. The County therefore argues that Appellants waived their right to raise this issue on appeal, citing Rule 33.1 of the Texas Rules of Appellate Procedure. Appellants, however, believe that they set forth adequate facts in their pleadings to support [*44] this claim, and that they should be given the opportunity to amend their pleadings to expressly state this cause of action, despite their failure to do so earlier. We disagree. [the Court extensively discusses its reasoning as to why Appellants failed to plead a 1983 claim.]” Luttrell v. El Paso Cty., No. 08-16-00090-CV, 2018 Tex. App. LEXIS 5813, at *43-44 (App.—El Paso July 26, 2018)

Special Appearance: “Here, PPM filed its breach of contract suit against McCoy, a Georgia resident, in Texas state court on July 8, 2016. McCoy filed his original answer on February 6, 2017. McCoy entered a general denial, requested that PPM serve on him the disclosures required by Rule 194.2, and “having fully answered herein, pray[ed] that upon final trial and hearing, that he receive a judgment according to the law and facts as determined by this Honorable Court.” McCoy sought his attorney’s fees and “such other and further relief, both general and special, at law and in equity” to which he was entitled. Three months later, on May 15, 2017, McCoy filed his special appearance, seeking dismissal of the suit against him because he lacked sufficient contacts with Texas. We conclude that McCoy made a general appearance when he filed his answer on February 6, 2017. See Baker, 111 S.W.3d at 160; Radenovich, 198 S.W.3d at 860; Seals, 145 S.W.3d at 296. Because McCoy made a general appearance before filing his special appearance, McCoy waived his special appearance and his challenge to the trial court’s personal jurisdiction over him. See [*9] Tex. R. Civ. P. 120a(1);” McCoy v. Platinum Power Moves, Inc., No. 01-17-00653-CV, 2018 Tex. App. LEXIS 5777, at *8-9 (App.—Houston [1st Dist.] July 26, 2018)

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

Yours,

Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, July 15, 2018

July 15, 2018

Dear All:
Opinions compiled in this blog entry deal with the following error preservation topics:

Clerk’s Record:  Jury Charge

Special Appearance

Subject Matter Jurisdiction

Your complaint in the trial court must be timely:  Evidence

You have to obtain a ruling on your complaint in the trial court: Affidavit

You must comply with the pertinent rules:  Recusal

The complaint you raise on appeal must be the complaint you made at trial:  Continuance, Evidence, Expert Reports, Jury Charge

If, in making your objection in the trial court, you merely refer the trial court to a brief you have filed, make sure you include that brief in the Clerk’s Record on appeal–otherwise, the court of appeals cannot tell if you preserved your complaint or not:

Jury Charge: “Among their arguments on appeal, appellees argue that Castilleja failed to preserve this issue for our review because she failed to provide “the grounds of the objection.” See Tex. R. Civ. P. 274 (requiring party objecting to charge to “point out distinctly the objectionable matter and the grounds of the objection”); see also Tex. R. App. P. 33.1(a) (addressing preservation of complaints for appellate review). Before the trial court, Castilleja orally objected to the inclusion of the sudden emergency instruction “based upon the—the final trial brief and attached case law as foundation for the same,” but she did not identify or explain the substance of her objection on the record other than by reference to her final trial brief, and the final trial brief is not in the record. Because the record does not provide the substance of the ground for objecting to the sudden emergency instruction, we cannot conclude that Castilleja has preserved her complaint to the instruction for appellate review.” Castilleja v. Terryl Monterastelli & Kahlig Enters., No. 03-18-00251-CV, 2018 Tex. App. LEXIS 5324, at *15 (App.—Austin July 13, 2018)

Just because you file your Special Appearance late does not mean you have waived it–as long as it precedes the filing of your general denial and it is not filed too late:

Special Appearance: “Finally, we address Merfish’s argument that Long Island Pipe waived its special appearance by failing to timely file it. Under Rule 99, a defendant must file its answer by 10:00 a.m. on the first Monday after the expiration of 20 days from the date the defendant was served with citation. See Tex. R. Civ. P. 99(b). And under Rule 120a, a special appearance must be filed before the defendant’s answer; provided, however, that the special appearance may be contained in the same instrument as the answer. See Tex. R. Civ. P. 120a. Thus, a defendant must file its special appearance by the deadline for filing its answer. [*18] Merfish served Long Island Pipe on March 28, 2017. Twenty days from March 28 was Monday, April 17. Thus, Long Island Pipe’s deadline for filing its special appearance was the following Monday—i.e., April 24. Long Island Pipe did not file its special appearance until April 30. Merfish argues that, by failing to timely file its special appearance, Long Island Pipe made a general appearance. We disagree. “A party waives its special appearance if it seeks affirmative relief or invokes the trial court’s jurisdiction on any question other than the court’s jurisdiction prior to the trial court ruling on the special appearance.” Verizon California, Inc. v. Douglas, No. 01-05-00707-CV, 2006 Tex. App. LEXIS 1622, 2006 WL 490888, at *3 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.). Long Island Pipe did not seek affirmative relief or invoke the trial court’s jurisdiction on any question other than the court’s jurisdiction before the trial court ruled on its special appearance. Long Island Pipe’s special appearance was its first pleading. Moreover, “[t]he case law is quite clear that special appearances may properly be granted even after a default judgment is granted.”” Long Island Pipe, Inc. v. QT Trading, LP, No. 01-18-00012-CV, 2018 Tex. App. LEXIS 5143, at *17-18 (App.—Houston [1st Dist.] July 10, 2018)

Lack of Subject Matter Jurisdiction can be raised for the first time on appeal:

Subject matter jurisdiction: “The Department contends that Bob and Donna waived this point of error or consented to the jurisdiction of the CCL. However, subject-matter jurisdiction cannot be granted by consent or waived by the parties.” In the Interest of E.N., No. 06-18-00019-CV, 2018 Tex. App. LEXIS 5258, at *3 n.3 (App.—Texarkana July 12, 2018)

Your complaint in the trial court must be timely:

Evidence: “Therefore, to complain on appeal that the trial court erroneously excluded Taplin’s deposition testimony or denied appellants an opportunity to impeach Taplin, appellants must have offered the evidence during the evidentiary portion of the trial and obtained an adverse ruling from the trial court. See, e.g., Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 662-63 (Tex. App.-Dallas 1986, writ ref’d n.r.e.). At trial, appellants did not attempt to offer the deposition during any witness’s testimony, seek to impeach Taplin on that issue, or secure a ruling on the deposition’s admissibility. Appellants did not raise the issue again until after evidence closed and the parties rested, when appellants proffered the deposition as an offer of proof. However, the trial court had no opportunity to rule on the testimony’s admissibility during the evidentiary portion of the trial. Appellants’ stated desire to make the deposition “part of the record” amounts to an offer of proof, but an offer of proof supports error only if the proponent actually offers the evidence during trial and obtains an adverse ruling. See Indus. III, Inc. v. Burns, No. 14-13-00386-CV, 2014 Tex. App. LEXIS 9447, 2014 WL 4202495, at *12 (Tex. App.-Houston [14th Dist.] Aug. 26, 2014, pet. denied) (mem. op.). Because appellants failed to obtain any evidentiary ruling from the trial court concerning the use of Taplin’s deposition at trial, they did not [*6] obtain a final adverse ruling from the trial court. See, e.g., Ulogo v. Villanueva, 177 S.W.3d 496, 501 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (op. on reh’g); see also Tex. R. App. P. 33.1(a). Accordingly, appellants’ evidentiary complaint presents nothing for our review.” Morales v. Taplin, No. 14-17-00225-CV, 2018 Tex. App. LEXIS 5150, at *5-6 (App.—Houston [14th Dist.] July 10, 2018)

You have to obtain a ruling on your complaint in the trial court:

Affidavit: “eBackpack argues that these terms and conditions may not have been applicable to the 2014 Contract, because the terms and conditions attached to LCISD’s affidavit in support of its plea to the jurisdiction are dated March 19, 2015. Although eBackpack’s counsel argued at the initial hearing on LCISD’s plea that the terms and conditions were submitted without an affidavit in proper form, eBackpack did not obtain a ruling on this objection in the trial court, and consequently waived it.Lamar Consol. Indep. Sch. Dist. v. Ebackpack, Inc., No. 05-17-01444-CV, 2018 Tex. App. LEXIS 5048, at *11 n.3 (App.—Dallas July 5, 2018)

You must comply with the pertinent rules:

Recusal: “With respect to the third “matter of noncompliance” listed in the order, Vodicka argues on appeal that he “filed a verified Motion for Recusal” but does not provide further argument concerning the verification of his motion. He attached a declaration to his motion for recusal that stated his name, date of birth, and address and described events in 2017 that he described as “harassment caused by the Tobolowsky family” and their agents. In the declaration, after stating his personal information and before describing the events in 2017, he stated, “I declare under penalty of perjury that the foregoing and the following statements are true and correct.” He signed the declaration and the motion to recuse. But the record reflects [*28] that Vodicka did not verify the statements about Judge Cosby that are the basis for the motion to recuse. See In re K.M.L., 443 S.W.3d 101, 109 (Tex. 2014) (applying Black’s Law Dictionary’s definition of “verification” as “(1) [a] formal declaration made in the presence of an authorized officer, such as a notary public . . .; whereby one swears to the truth of the statements in the document [or]; (2) [a]n oath or affirmation that an authorized officer administers to an affiant or deponent” and definition of “verify” as “(1) [t]o prove to be true; to confirm or establish the truth or truthfulness of; to authenticate; [or] (2) [t]o confirm or substantiate by oath or affidavit; to swear to the truth of” (quoting Black’s Law Dictionary 1793 (10th ed. 2009)). Because we conclude that Vodicka’s motion to recuse did not comply with the requirement under rule 18a that a motion to recuse be verified, it is not necessary for us to address the other two “matters of noncompliance” described in the order denying Vodicka’s motion to recuse. We resolve Vodicka’s third issue against him.” Vodicka v. A.H. Belo Corp., No. 05-17-00728-CV, 2018 Tex. App. LEXIS 5049, at *27-28 (App.—Dallas July 5, 2018)

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

Continuance: “Garrick contends that she preserved error under these rules because she repeatedly moved for a continuance. But her motions for continuance were based on her inability to find counsel, not on inadequate notice, and through her motions, Garrick sought months of additional time, rather than the twenty-four days to which she was entitled. These motions did not preserve a complaint [*7] about inadequate notice. See Hudenburg v. Neff, 643 S.W.2d 517, 518-19 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (a motion for continuance “based solely on appellant’s physical condition” did not preserve a complaint about inadequate notice). Garrick received notice that was untimely but sufficient to enable her to attend the summary-judgment hearing. Under our error-preservation rules, she was required to bring the notice defects to the specific attention of the trial court before the summary-judgment hearing. See Rios, 948 S.W.2d at 33; Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex. App.—Houston [14th Dist.] 1994, no writ). Because she did not, we conclude that Garrick did not preserve her appellate complaint of inadequate notice. We overrule this issue.” Garrick v. Autoliv ASP, Inc., 2018 Tex. App. LEXIS 5220, *6-7 (Tex. App.–Houston [14th Dist.] July 12, 2018)

Evidence: “While the record reflects that Sawyer objected on grounds of hearsay and unfair prejudice, the record does not show that Sawyer raised in the trial court the specific argument he now makes that the evidence about Dr. Varela’s report was not admissible because it was not used to show the basis for Dr. Reed’s opinion, but to improperly bolster her opinion and as substantive evidence. Accordingly, we conclude this particular argument is not preserved for our review. See Tex. R. App. P. 33.1(a). In addition, Sawyer’s complaints about the State’s use of Dr. Varela’s evaluation during Sawyer’s own testimony, are likewise not preserved. See id. The trial court made clear when it granted Sawyer’s request for a running objection during Dr. Reed’s testimony that the running objection was “just for this witness.” Sawyer did not raise any hearsay or rule 403 objections during his testimony.” In re Commitment of Sawyer, No. 05-17-00516-CV, 2018 Tex. App. LEXIS 5201, at *18 (App.—Dallas July 11, 2018)

Expert Reports: “On appeal, Golden Years also argues that Dr. Streitmann did not “adequately describe what ‘wound care’ he envisions, when this wound care needed to be implemented in the five-day window in question in order for cellulitis to be avoided, or explain why Mr. Richard, an individual already on hospice care, would have been a candidate for this treatment and would have responded to it.” [*32] However, Golden Years did not make these arguments in its Motion to Dismiss or Reply filed after Plaintiff submitted Dr. Streitmann’s addendum. Because this argument does not comport with the argument made to the trial court, no error has been preserved on this argument. See Tex. R. App. P. 33.1, 47.1; Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“To have preserved error, a party’s argument on appeal must comport with its argument in the trial court.”)”Golden Years Assisted Living v. Richard, No. 09-17-00251-CV, 2018 Tex. App. LEXIS 5254, at *31-32 (App.—Beaumont July 12, 2018)

Jury Charge: “In his eighth issue, Hill contends the Spracklens are not entitled to exemplary damages because there are no actual damages findings in the record based on fraud or unfair debt collection practices. . . . To the extent Hill’s eighth issue can be construed to be a complaint about the trial court’s use of a broad form question concerning the Spracklens’ mental anguish damages, Hill did not preserve that complaint for our review on appeal. Our rules of procedure [*30] establish the preservation requirements to raise a jury-charge complaint on appeal. Thota, 366 S.W.3d at 689. The complaining party must object before the trial court and “must point out distinctly the objectionable matter and the grounds of the objection.” Tex. R. Civ. P. 274; see also Tex. R. App. P. 33.1. Under Rule of Civil Procedure 274, “[a]ny complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex. R. Civ. P. 274. As a general rule, preservation requires (1) a timely objection “stating the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context,” and (2) a ruling. See Tex. R. App. P. 33.1. Stated differently, the test ultimately asks “whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Hill did not object to the broad form submission of the mental anguish damages question on the basis that he now appears to advance. See Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014). Accordingly, that complaint has not be preserved on appeal. See id. We overrule Hill’s eighth issue.” Hill v. Spracklen, No. 05-17-00829-CV, 2018 Tex. App. LEXIS 5313, at *29-30 (App.—Dallas July 12, 2018)

I won’t bother you all with the various opinions which held that parties failed to raise their complaints in the trial court.

I hope this helps.  Hasta luego.

Yours, Steve Hayes

shayes@stevehayeslaw.com; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, July 5, 2018

July 5, 2018

Hidy Ho.

 

The Supreme Court once again weighed in on whether an implied ruling could preserve an objection to summary judgment evidence.  While not as clear as I would like, I still think a written ruling of some kind is probably required, but in any event everyone should keep following the best practice of getting a written order as to your objections, to avoid an expensive, tedious, confusing error preservation fight that does not get you any closer to the resolution of your case:

Back in 2017, the Supreme Court held that when “[t]he record contains no order sustaining the objection,” an objection to “late-filed summary-judgment evidence. . . . has been waived,” because “[e]ven objected-to evidence remains valid summary-judgment proof ‘unless an order sustaining the objection is reduced to writing, signed, and entered of record.'” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017). Rincones failed to deal with the language in 33.1(a)(2)(A) allowing an implied ruling on an objection, but at least it had straightforward language requiring a written ruling.

Last week, without mentioning Rincones, the Supreme Court potentially injected uncertainty into this area. Seim v. Allstate Tex. Lloyds, No. 17-0488, 2018 Tex. LEXIS 648 (June 29, 2018). Seim v. Allstate Tex. Lloyds dealt with an objection to the form of an affidavit, apparently the failure of a notary to sign a jurat. Seim, at *5-6. In Seim, the Supreme Court first seemed to endorse the holding in Rincones by saying that “[w]e hold the Fourth and Fourteenth courts have it right,” endorsing those courts’ holdings that “it is incumbent upon the party asserting objections [as to an affidavit’s form] to obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver,” citing Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.-Houston [14th Dist.] 2000, pet. denied), and that ” a trial court’s ruling on an objection to summary[-]judgment evidence is not implicit in its ruling on the motion for summary judgment,” citing Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.-San Antonio 2000, no pet.). But instead of invoking Rincones, and holding that there was no “order sustaining the objection . . . reduced to writing, signed and entered of record,” the Court went off on the implied ruling tangent, saying that “nothing in this record serves as a clearly implied ruling by the trial court on Allstate’s objections” to a summary judgment affidavit. Pursuing the implied ruling tangent further, the Supreme Court pointed out that “even without the objections, the trial court could have granted summary judgment against the [Plaintiffs] if it found that their evidence did not generate a genuine issue of material fact,” a fact which Defendant “has argued . . . in its briefing to this Court.” Seim, at *11-12. The Court then held that the objection as to form was waived because Defendant “failed to obtain a ruling from the trial court on its objections to the affidavit’s form,” leaving us to wonder if that ruling must be in writing, or if an implied ruling is good enough, or whether a ruling on a motion for summary judgment may be an acceptable implied ruling if the trial court could not have granted summary judgment if the objected to evidence created a fact issue-thus putting the courts of appeals back in the position of having to address the objected to evidence. Seim, at *12-13. In any event, the Supreme Court reversed and remanded the case to the court of appeals, for it to consider whether the Defendant was “still entitled to summary judgment on other grounds.” Seim, at *13.

Interestingly, here is a case in which a trial court did issue a written ruling on objections to summary judgment evidence (depositions), albeit in an informal (though signed) fashion, by taking a copy of the objections, writing a ruling on each one, and signing it:

Summary Judgment: “Turning to Yarbrough’s contention that GRC’s objections are waived because the trial court did not enter a written ruling, we disagree.  “To preserve objections to the form of summary-judgment evidence for appeal, a party asserting the objections must obtain a ruling at or before the summary judgment hearing.” Williams v. Bad-Dab, Inc., No. 01-11-00102-CV, 2012 Tex. App. LEXIS 7725, 2012 WL 3776347, at *6 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.) (mem. [*9] op.) (citing Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); Tex. R. App. P. 33.1(a)(1); Tex. R. Civ. P. 166a(f)). Pertinent to this case, objections to leading questions and hearsay are defects in form, and thus, require a ruling for appellate review. Williams, 2012 Tex. App. LEXIS 7725, 2012 WL 3776347, at *6 (stating objection to hearsay is defect in form); Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 (Tex. App. 1998) (specifying objections to question as leading is an objection to form). The party objecting to summary judgment evidence bears the burden to obtain a ruling on that party’s objections. Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 99 (Tex. App.—Dallas 2010, pet. denied). One way the burden is satisfied is if the record affirmatively indicates the trial court ruled on the objections. Id. Here, at the summary judgment hearing, GRC filed written objections to portions of Broderick’s and Jones’s presuit deposition testimony. In its written filing, GRC specified which portions of deposition testimony it objected to by referencing the location of the testimony by page and line numbers. Next to each objection, the trial judge noted “Denied” or “G,” and handwrote the phrase “Ordered as noted & Bench filed 2-23-2016” on the first page of GRC’s written objections. The phrase was followed by the trial judge’s signature. Based on this record before us, we conclude the record affirmatively demonstrates the trial court ruled on each of the objections by writing its ruling next [*10] to each objection and including the phrase “Ordered as noted” along with the judge’s signature. See id. Yarbrough contends, however, the judge’s notations of “Denied” or “G” are insufficient to constitute a written ruling, comparing the notations to a docket sheet entry, which are not written rulings. See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Entries made in a judge’s docket are not accepted as a substitute for that record. The order must be reduced to writing, signed by the trial court, and entered in the record.”). Contrary to Yarbrough’s contention, the judge’s notations are not entries to the docket sheet, but rather are written rulings to each objection set forth by GRC. See id. Moreover, the rulings are signed by the trial court. See id. Thus, the filing itself affirmatively demonstrates the trial judge’s rulings. See Mitchell, 310 S.W.3d at 99. Accordingly, because we conclude GRC secured a written ruling as to each of its objections to the deposition testimony of Broderick and Jones, we hold GRC did not waive its objections.” Yarbrough v. McCormick, No. 04-17-00283-CV, 2018 Tex. App. LEXIS 4719, at *8 (App.—San Antonio June 27, 2018).

Some complaints may be raised for the first time on appeal:

Subject Matter Jurisdiction: “On appeal, the United States argues the trial [*4] court properly dismissed the school district’s trespass to try title claim because the trial court, a state district court, lacked jurisdiction over the claim. The United States made this argument in its petition in intervention, but it did not present it to the trial court. However, because HN1 subject matter jurisdiction is an issue that may be raised for the first time on appeal, we will address the United States’s jurisdictional argument.” Rio Grande City Consol. Indep. Sch. Dist. v. City of Rio Grande, No. 04-17-00346-CV, 2018 Tex. App. LEXIS 4712, at *3-4 (App.—San Antonio June 27, 2018)

Your objection must be timely–neither to early nor too late:

Visiting Judge: “Here, Misty’s October 19, 2017 objection is ineffective because she made it before Judge Burgess was assigned to the case on February 6, 2018. See Carnera, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2 (holding pro forma objection “to the assignment of this matter to an associate or visiting [judge] for trial on the merits” contained in petition was insufficient to object to later-assigned [*4] visiting judge). Further, Misty waived any objection by proceeding to trial before Judge Burgess without making him aware of the objection or requesting a ruling before trial commenced on February 12, 2018. See id. (holding any objection to visiting judge was waived where both parties proceeded to trial without requesting a ruling).” In the Interest of S.Q., No. 04-18-00119-CV, 2018 Tex. App. LEXIS 4688, at *3-4 (App.—San Antonio June 27, 2018)

You have to comply with the pertinent rules to preserve your complaint:

Factual Sufficiency: “Appellants’ first issue also appears to challenge the factual sufficiency of the evidence to support the jury’s alter-ego findings. To the extent that it does so, that issue is waived because it was not raised in appellants’ motion for new trial. See Tex. R. Civ. P. 324 (b)(2) (“A point in a motion for new trial is a prerequisite to the following complaints on appeal: . . . [a] complaint of factual insufficiency of the evidence to support a jury finding.”).” Control Works, Inc. v. Seeman, No. 01-17-00212-CV, 2018 Tex. App. LEXIS 4829, at *6 (App.—Houston [1st Dist.] June 28, 2018)

Sometimes, a ruling on an objection can be implied from a trial court’s order:

Accounting: “Nancy filed an application to resign, a notice of conditional resignation, and an application for appointment of a successor dependent administrator. In Paul’s First Objections, he expressly argued, among other things, that Nancy’s application to resign did not comply with Texas Estates Code section 361.001 because she had not provided a full and [*15] verified accounting for the estate. This phase of the proceeding ended on January 12, 2017, when the trial court rendered its First Order accepting Nancy’s resignation and appointing Reiner as dependent administrator. The trial court expressly stated in its First Order that it considered Paul’s objections, and because Paul objected on the ground that the absence of a verified accounting rendered Nancy’s application defective, the trial court’s acceptance of her resignation implicitly overruled Paul’s objection that a verified accounting is required. Cf. Tex. R. App. P. 33.1(a)(2)(A) (a trial court’s implicit ruling on a complaint brought by timely request, objection , or motion is preserved for appellate review).” Estate of Nunu, No. 14-17-00495-CV, 2018 Tex. App. LEXIS 4776, at *14-15 (App.—Houston [14th Dist.] June 28, 2018)

Here is one in which the party preserved a complaint about the lack of specificity in a sanctions order:

Sanctions: “After the trial court found that Pajooh’s allegations were groundless and granted appellees’ motion for sanctions during the hearing on the motion, Pajooh informed the court that he needed to know the basis for the court’s finding that his claims were groundless and brought in bad faith. In his motion for new trial, Pajooh argued that the trial court committed [*10] reversible error by failing to comply with Rule 13’s particularity requirement. Because he raised a challenge to the trial court’s sanctions order based on the lack of particularity in a post-judgment motion and requested fact findings supporting the trial court’s conclusion that his claims were groundless and brought in bad faith, we conclude that Pajooh has preserved this issue for our review. Cf. Wilner, 2012 Tex. App. LEXIS 9064, 2012 WL 5311147, at *7 (holding party failed to preserve complaint regarding particularity requirement of Rule 13 because party “failed to raise any challenge to the sanctions order before the trial court, either at the trial setting at which the court imposed the sanctions or in a post-judgment motion”).” Massood Danesh Pajooh v. Miller, No. 01-16-00927-CV, 2018 Tex. App. LEXIS 4964, at *9 (App.—Houston [1st Dist.] July 3, 2018)

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

New Trial: “In his fifth issue, Pajooh argues on appeal that the trial court abused its discretion by denying his motion for new trial in light of newly discovered evidence, i.e., appellate court opinions in related cases. Although he asserted various arguments in support of his motion, Pajooh did not argue to the trial court that it should grant him a new trial based on newly discovered evidence. In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court. See Ferrara v. Moore, 318 S.W.3d 487, 496 (Tex. App.—Texarkana 2010, pet. denied). Because Pajooh’s appellate argument does not comport with the arguments he presented in his motion for new trial, Pajooh’s fifth issue has not been preserved for appellate review. See id. Massood Danesh Pajooh v. Miller, No. 01-16-00927-CV, 2018 Tex. App. LEXIS 4964, at *12 (App.—Houston [1st Dist.] July 3, 2018)

There were then a bunch of cases in which parties failed to preserve error by not raising their complaints in the trial court, but I will not go into those here.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

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

 

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