Error Preservation in Texas Civil Cases, April 18, 2019

April 18, 2019

Dear All:

The topics included in this blog entry include:

Some issues that can be raised for the first time on appeal: lack of subject matter jurisdiction (standing), and the fact that an unsigned mediated settlement agreement in a family law matter is not binding

Parent Child Relationship
Mediated Settlement Agreement

A complaint was not sufficiently specific

Judgment

Parties did not waive a complaint as to the form of the judgment

Judgment
Judgment

A party’s post trial motions preserved a complaint
Double Recovery

You have to get a ruling on your complaints

Affirmative Defenses
Continuance
Summary Judgment

Some issues that can be raised for the first time on appeal: lack of subject matter jurisdiction (standing), and the fact that an unsigned mediated settlement agreement in a family law matter is not binding:

Parent Child Relationship: “As a preliminary matter, we address Paternal Grandmother’s argument that we should not address Maternal Grandmother’s challenge to her standing on mandamus because Maternal Grandmother did not object to her standing in the trial court. However, subject matter jurisdiction cannot be waived or conferred by agreement and can be raised at any time. See In re D.S., 555 S.W.3d 301, 314 (Tex. App.—Dallas 2018, pet. filed). Accordingly, we will address whether the trial court erred in concluding at the temporary orders hearing that Paternal Grandmother had standing.” In re Nelke, No. 05-19-00050-CV, 2019 Tex. App. LEXIS 2754, at *4-5 (Tex. App.—Dallas Apr. 5, 2019)

Mediated Settlement Agreement: “We agree with the court’s reasoning in Lockwood. Considering [*8] the plain language of the statute and the important rights and interests at stake in SAPCR proceedings, strict compliance with section 153.0071(d) is essential to forming a binding and irrevocable agreement. See In re H.H., No. 05-15-01322-CV, 2016 Tex. App. LEXIS 1520, 2016 WL 556131, at *3 (Tex. App.—Dallas Feb. 12, 2016, no pet.) (mem. op.) (concluding mediated settlement agreement not binding on father when he failed to sign it). In this case, it is undisputed Father did not sign the rule 11 agreement, which stated in bold, capital letters, in part, that “THIS AGREEMENT MEETS THE REQUIREMENTS OF SECTION 153.0071(d) OF THE TEXAS FAMILY CODE.” Accordingly, the statute’s requirements were not satisfied, and the agreement is no evidence supporting the trial court’s termination order. See id. In reaching this decision, we reject the State’s argument that Father waived his complaint by failing to object to the rule 11 agreement. 2016 Tex. App. LEXIS 1520, [WL] at *1-2 (concluding unsigned MSA was binding on Father pursuant to section 153.0071 despite father not raising argument in motion for new trial).” In the Interest of J.S., No. 05-18-01328-CV, 2019 Tex. App. LEXIS 2549, at *7-8 (Tex. App.—Dallas Mar. 29, 2019)

A complaint was not sufficiently specific:

Judgment: “We first address whether Jonjak preserved his argument that the divorce decree varies from the terms of the MSA. To preserve an issue for appellate review, a party must make a timely request, motion, or objection stating the grounds for the ruling “with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a). The trial court must rule or the party urging the objection must object to its failure to rule. Id. The preservation-of-error requirement “conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds.” In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). Griffith argues Jonjak never gave the district court this opportunity because he never challenged whether awarding “interest, dividends, gains, or losses” was proper. Jonjak did not explicitly make this argument in the hearing but submitted a proposed decree that awarded Griffith the [*6] flat sum of $962,000 and argued she was entitled to only that sum. In his motion for new trial, Jonjak argued more explicitly that this language was improper because the MSA “did not mention what would happen to gains and losses in the account for payment from the 401k.” We conclude Jonjak raised this issue clearly enough to preserve error.” Jonjak v. Griffith, No. 03-18-00118-CV, 2019 Tex. App. LEXIS 2977, at *5-6 (Tex. App.—Austin Apr. 12, 2019)

Parties did not waive a complaint as to the form of the judgment:

Judgment: “The record before us shows that even though the companies moved the trial court to render judgment, they also informed the trial court that they disagreed with the content and result of the proposed judgment. See Hooks v. Samson Lone Star, Ltd. P’shp, 457 S.W.3d 52, 67 (Tex. 2015) (holding that a party who moved for entry of judgment did not waive his right to appeal when he specifically reserved the right to challenge prior court orders in his motion to enter judgment); Fojtik, 775 S.W.2d at 633 (concluding that a reservation contained in a motion to enter judgment preserved the movants’ right to complain of the judgment). We conclude that by filing a qualified motion to render judgement, the companies preserved their complaint for appellate review.” Davenport v. Hall, No. 04-14-00581-CV, 2019 Tex. App. LEXIS 2848, at *21-22 (Tex. App.—San Antonio Apr. 10, 2019)

Judgment: “In general, a consent judgment has the same force as a judgment rendered after litigation, except that the parties’ consent excuses error and operates to end all controversy between them. See McCray, 584 S.W.2d at 281; Johnson, 2010 Tex. App. LEXIS 8437, 2010 WL 4156459, at *6. Excepting jurisdictional error, a party’s consent to the trial court’s entry of judgment waives any error contained in the judgment, and that party has nothing to properly present for appellate review. See Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex. App.-Dallas 2008, no pet.); Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.-Dallas 1997, no pet.); see also Gross v. Dannatt, No. 13-15-00309-CV, 2017 Tex. App. LEXIS 5710, 2017 WL 2705471, at *1 (Tex. App.-Corpus Christi-Edinburg June 22, 2017, pet. denied) (mem. op.), cert. denied, No. 18-7342, 2019 U.S. LEXIS 1940, 2019 WL 1231849 (U.S. Mar. 18, 2019). Accordingly, a party cannot appeal from a judgment to which it has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation. See Boufaissal, 251 S.W.3d at 161-62; Baw, 949 S.W.2d at 766.

To have a consent judgment, each party must explicitly and unmistakably give its consent. See Baw, 949 S.W.2d at 766; see also Hicks, 348 S.W.3d at 283. A trial court cannot render a valid agreed judgment absent consent at the time it is rendered. See Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per curiam); Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995); see also Vega v. Vega, No. 07-14-00208-CV, 2016 Tex. App. LEXIS 1767, 2016 WL 735967, at *2 (Tex. App.-Amarillo Feb. 18, 2016, no pet.) (mem. op.); Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex. App.-Corpus Christi-Edinburg 1995, no writ). The presence of a party’s signature approving the decree does not render the decree an agreed or consent judgment. See Durden v. McClure, 281 S.W.3d 137, 140 (Tex. App.-San Antonio 2008, no pet.). A party who approves only the form of the judgment [*10] forfeits no right to appeal. See Baw, 949 S.W.2d at 766-67. Further, the phrase “approved as to form and substance” standing alone does not transform a judgment into a consent judgment. See Baw, 949 S.W.2d at 767; see also Hicks, 348 S.W.3d at 283; Durden, 281 S.W.3d at 140; cf. Boufaissal, 251 S.W.3d at 162 (Wife’s signature signified her approval and consent to terms of agreed decree as to both form and substance and waived her right to appeal). However, the phrase “approved as to form and substance” may describe an agreed judgment when coupled with additional recitations in the judgment. See Durden, 281 S.W.3d at 140. For example, the body of the consent judgment must also suggest that the judgment was rendered by consent. See Hicks, 348 S.W.3d at 283. When a consent judgment is rendered without consent or is not in strict compliance with the terms of the parties’ agreement, the judgment must be set aside. See Chisholm, 209 S.W.3d at 98; see also Vega, 2016 Tex. App. LEXIS 1767, 2016 WL 735967, at *2; Sohocki, 897 S.W.2d at 424.
….
Though the body of the agreed decree contains language suggesting that the judgment was rendered by consent, it was signed only by Father and approved by the parties’ attorneys only as to form; it was not signed by Mother. Mother immediately objected to the agreed decree by filing a motion for new trial that argued, in part, that the agreed decree added terms and language that did not appear in either the partial MSA or the ISA and was not agreed [*12] on by the parties.
….
Based on the record before us, we cannot conclude that Mother consented to the agreed decree at the time it was rendered.” In the Interest of R.S., No. 05-17-00848-CV, 2019 Tex. App. LEXIS 3013, at *8 (Tex. App.-Dallas Apr. 12, 2019)

A party’s post trial motions preserved a complaint :

Double Recovery: “Cho asserts as an initial matter that, by permitting Kim and Lee to recover damages for both “Misapplication of initial investment” and “Construction Costs,” the trial court’s final judgment impermissibly grants Kim and Lee a double recovery. Kim and Lee contend that Cho waived any error with respect to this contention. We reject their waiver argument. . . . An objection asserting that the plaintiff failed to elect its remedy preserves a double recovery complaint for appellate review.. . . The arguments raised in Cho’s post-verdict motions preserve his double recovery argument for our review. In his new trial motion, Cho objected to the amounts the jury assessed for “Misapplication of initial investment” and “Construction Costs,” asserting that the dollar amounts were “excessive.” In his motion to modify, correct, or reform the final judgment, Cho challenged the final judgment’s award of damages for “Misapplication of initial investment” and “Construction Costs,” arguing that the damages award “violated the one-satisfaction rule.” Cho requested that the final judgment be corrected to reflect that Kim and Lee were entitled only to a single recovery. These arguments preserve the double recovery [*42] challenge Cho advances on appeal.” Jang Won Cho v. Kun Sik Kim, No. 14-16-00962-CV, 2019 Tex. App. LEXIS 2603, at *40-42 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019)

You have to get a ruling on your complaints:

Affirmative Defenses: “To adequately preserve an error for review on appeal, Rule 33.1 of the Texas Rules of Appellate Procedure requires the record to show (1) that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, and (2) that the trial court expressly or implicitly ruled on the request, objection, or motion. See Tex. R. App. P. 33.1. Here, Caviness filed with the district clerk a “challenge to plaintiff’s standing, bar due to assumption of risk, statute of frauds, plea to jurisdiction, illegal agreement, and motion to dismiss.” In this filing, Caviness made the same complaints regarding subject-matter jurisdiction that he now presents in this appeal. The record does not reveal, however, that Caviness brought these complaints to the attention of the trial court or that he obtained a ruling on them. See id. In addition, HN5 although a challenge to subject-matter jurisdiction may be raised for the first time on appeal, see, e.g., Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012), we will not consider the merits of Caviness’s “jurisdictional” issues in this appeal.  Subject-matter [*10] jurisdiction refers to the court’s power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); Assignees of Best Buy v. Combs, 395 S.W.3d 847, 860 (Tex. App.—Austin 2013, pet. denied). Although Caviness frames his complaints as challenges to the court’s subject-matter jurisdiction, they are more properly characterized as challenges to High Profile’s ability to sue. At its core, Caviness’s “jurisdictional” argument is that High Profile’s claims against him are contractually barred or waived, which goes to the merits of the case and not to the court’s power to decide the case. See Yasuda Fire & Marine Co. of Am. v. Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (concluding that issue regarding third-party’s lack of “standing” to enforce contract was not jurisdictional because it did not “affect[] the court’s power to make a legal decision or enter a judgment”). Because Caviness has failed to preserve these arguments for appeal, we will not address them.” Caviness v. High Profile Promotions, Inc., No. 03-17-00553-CV, 2019 Tex. App. LEXIS 2735, at *9 (Tex. App.—Austin Apr. 5, 2019)

Continuance: “Antero conditionally argues that we should remand without rendering judgment dismissing EnerQuest in order to permit the trial court to consider whether more jurisdictional discovery is warranted. But Antero does not direct us to anywhere in the record to show that the motion for continuance was ruled on nor have we located “a clearly implied ruling by the trial court.” Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166 (Tex. 2018); see Epicous Adventure Travel, LLC v. Tateossian, Inc., No. 08-18-00057-CV, 2019 Tex. App. LEXIS 1409, 2019 WL 926278, at *10 (Tex. App.—El Paso Feb. 26, 2019, no pet. h.) (relying on Seim in overruling challenge to trial court’s failure to permit jurisdictional discovery in special appearance proceeding in part because the party seeking such discovery never “obtained a ruling on its request for additional discovery” and “[o]btaining a ruling, or at least a refusal to rule (supported by an objection to the refusal to rule) is an elemental requirement for preservation of error”). Accordingly, any error in the failure to permit jurisdictional discovery has not been preserved for our review. See Tex. R. App. P. 33.1(a)(2); Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiffs] failed to obtain a ruling from the trial court on the motion for continuance and therefore, failed to preserve error.”).” Enerquest Oil & Gas, L.L.C. v. Antero Res. Corp., No. 02-18-00178-CV, 2019 Tex. App. LEXIS 3000, at *7 n.6 (Tex. App.—Fort Worth Apr. 11, 2019)

Summary Judgment: “In Ewing’s amended response, it objected to all of TIADA’s summary judgment evidence, arguing that it should be excluded because TIADA failed to timely disclose the witnesses and evidence in response to Ewing’s requests for disclosure. During the summary judgment hearing, Ewing again raised its objection to TIADA’s summary judgment evidence. However, Ewing failed to obtain any ruling on any such objection. Because no ruling on any objection was ever reduced to writing, signed, and entered of record, this issue was not preserved for our review; thus, TIADA’s evidence remains a part of its summary judgment proof. See Seim, 551 S.W.3d at166. We overrule this point of error.” Ewing Ins. Servs. v. Tex. Indep. Auto. Dealers Ass’n, No. 06-18-00090-CV, 2019 Tex. App. LEXIS 2983, at *25 (Tex. App.—Texarkana Apr. 12, 2019)

Lots of cases involved complaints that were not raised in the trial court.

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

Yours, Steve

shayes@stevehayeslaw.com; www.stevehayeslaw.com

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Error Preservation in Texas Civil Cases, 4/3/19

April 3, 2019
Dear All:

The topics included in this blog entry include:

Some issues–like lack of subject matter jurisdiction, and a parent’s complaint that his attorney had no authority to enter a Rule 11 agreement in a termination proceeding–may be raised for the first time on appeal

Forcible Detainer
Rule 11 Agreement

A court of appeals held that it will address whether a cause of action should be dismissed under the TCPA, even though that cause of action was not addressed in either the motion to dismiss or the parties appellate briefs

What oral statements from a trial court amount to a ruling denying a request for appointed counsel

Just because you did not object to a jury question which allowed the jury to find reasonable fees “if any,” you have not waived your objection to a jury finding of -0- attorney’s fees

You may preserve your legal sufficiency challenge by virtue of the trial court granting the other side’s motion for judgment notwithstanding the verdict

You have to raise your complaint in a timely fashion

Evidence
Severance

Your complaint must be sufficiently specific

Evidence

The record has to reflect you preserved your complaint

Evidence

You have to comply with other pertinent rules

Emergency
Venue

You have to get a ruling on your complaint

Associate Judge
Res Judicata

On to the cases.

Some issues–like lack of subject matter jurisdiction, and a parent’s complaint that his attorney had no authority to enter a Rule 11 agreement in a termination proceeding–may be raised for the first time on appeal:

Forcible Detainer: “In his first issue, Burton argues that the county court should have denied Leawood’s motion to dismiss on the grounds of waiver, laches, or quasi-estoppel. Leawood argues that the county court was required to dismiss the claims because it lacked subject matter jurisdiction over Burton’s claims. We agree with Leawood. . . . .

Burton argues that Leawood waived its right to object to the county court’s lack of jurisdiction. According to Burton, this case [*4] is akin to a party’s failure to object when a trial court proceeds after the imposition of certain bankruptcy stays. The supreme court has held that such failure waives error. Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 923 (Tex. 2011); see also Escalante v. Rowan, 251 S.W.3d 720, 724-25 (Tex. App.—Houston [14th Dist.] 2008) (“[T]he failure to object based on this stay waives any error that the trial court may have committed by failing to stay the proceedings during the pendency of the interlocutory appeal.”), rev’d on other grounds, 332 S.W.3d 365 (Tex. 2011). In so concluding, the high court noted that such a stay “differs from a situation in which the relevant statute vests ‘exclusive jurisdiction’ in a particular forum.” Roccaforte, 341 S.W.3d at 923. Here, as discussed, in a forcible detainer action, the justice court is vested with jurisdiction only to determine the right to possession. Accordingly, these facts are distinguishable from the facts in Roccaforte.

We conclude that Leawood did not waive its right to object to the county court’s jurisdiction over Burton’s claims. We further conclude that the county court lacked subject matter jurisdiction and thus was required to dismiss Burton’s claims.” Burton v. Leawood Homeowners Ass’n, LLP, No. 14-17-00864-CV, 2019 Tex. App. LEXIS 2306, at *2-4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2019)

Rule 11 Agreement: “In his first issue, Father argues the trial court abused its discretion by entering judgment on a rule 11 agreement when there was no evidence Father consented to or gave his attorney [*4] authority to enter into it. The State responds Father failed to preserve his issue for review, or alternatively, nothing in the record rebutted the presumption that Father’s attorney had authority to sign the rule 11 agreement on his behalf. . . . In reaching this decision [that the statute’s requirements were not satisfied], we reject the State’s argument that Father waived his complaint by failing to object to the rule 11 agreement.” In the Interest of J.S., No. 05-18-01328-CV, 2019 Tex. App. LEXIS 2549, at *3-8 (Tex. App.—Dallas Mar. 29, 2019)

Here is an interesting one–in which a court of appeals held that it will address whether a cause of action should be dismissed under the TCPA, even though that cause of action was not addressed in either the motion to dismiss or the parties appellate briefs:

Texas Citizens’ Participation Act: “Although not addressed by the parties, we note that in addition to defamation, Fernandez alleged a claim for IIED. He also filed a supplemental pleading in which he added a claim for conspiracy. Appellants’ TCPA motion to dismiss did not address [*51] either claim, nor does their brief on appeal.

Our court has explained that HN30 simply because one claim may require dismissal under the TCPA, it does not ipso facto require that dismissal be granted on other claims not specifically addressed in the motion to dismiss. Cf. Ghrist, 2018 Tex. App. LEXIS 4578, 2018 WL 3060331, at *5 n.9 (“Each cause of action stands or falls on its own merit; there is no bootstrapping effect for other causes of action that do not meet the criteria set forth in the [TCPA] statute”). Indeed, neither the TCPA nor cases interpreting it require that we perform a search of the record to find clear and specific evidence of each element of the plaintiff’s claims. See Cavin, 545 S.W.3d at 72 (dismissing claims when the plaintiffs “have merely recited what they view as the essential elements of each claim; cited en masse to pages of the record they deem relevant to some unspecified element or elements of that claim; but provided no argument, analysis, or explanation as to which record reference supports which elements or (perhaps more critically) why that evidence would satisfy the specific element under the governing law”).

Yet we recognize that in Adams, the Supreme Court of Texas recently reversed an appellate court decision affirming the denial of [*52] a TCPA motion to dismiss based in part on a party’s failure to preserve an argument by failing to specifically raise it in the motion to dismiss. 547 S.W.3d at 896. The Adams court admonished that the appellate court “imposed too strict a view of error preservation in this context” and buttressed its position with reference to the TCPA’s directive that its applicability is to be “based on a holistic review of the pleadings.” Id. at 896-97. As the Adams court explained, once the defendant alleged in his motion that he was entitled to dismissal of the plaintiff’s defamation claim because it was based on his right of free speech, “[h]e was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.” Id. at 896.

With these decisions in mind, we consider whether Fernandez’s conspiracy and IIED claims—although not addressed in Appellants’ motion to dismiss or the parties’ briefs—require dismissal under the TCPA.” Weber v. Fernandez, No. 02-18-00275-CV, 2019 Tex. App. LEXIS 2487, at *50-52 (Tex. App.—Fort Worth Mar. 28, 2019)

Here is another interesting one–as to what oral statements from a trial court amount to a ruling denying a request for appointed counsel:

Attorney (appointed): “In so holding, we also reject the State’s argument that Father waived any error by failing to obtain a ruling on his request for appointed counsel. See Tex. R. App. P. 33.1. The trial court’s response of “Have a seat. You represent yourself,” can be reasonably interpreted as a denial of Father’s request for counsel, thereby preserving error.” In the Interest of M.H., No. 02-18-00329-CV, 2019 Tex. App. LEXIS 2231, at *6 n.2 (Tex. App.—Fort Worth Mar. 21, 2019)

And the final of the interesting triumvirate, here is one that says that just because you did not object to a jury question which allowed the jury to find reasonable fees “if any,” you have not waived your objection to a jury finding of -0- attorney’s fees:

Attorney’s Fees: “In its first issue, the State contends that the jury lacked discretion, as a matter of law, to find that the State did not incur any reasonable and necessary attorney’s fees because the State, as the prevailing party, was entitled to its fees under section 2107.006 of the Government Code. See id. The State contends that an award of attorney’s fees is mandatory under this section.

Buchanan responds that the State failed to preserve this complaint because it did not object to submission of the jury question on the issue of attorney’s fees, which read: “What is a reasonable fee, if any, for the necessary services of the State’s attorney, stated in dollars and cents?” (Emphasis added.) Specifically, Buchanan contends that the question’s use of the conditioning language “if any” afforded the jury discretion to refuse to award any attorney’s fees and instructed the jury that a fee award was not mandatory; therefore, [*5] he continues, the State cannot complain about the question on appeal because it did not object to the possibility—raised by the question as submitted—that the jury could find that no attorney’s fees were reasonable and necessary. We conclude that the State did not waive its contention that an attorney’s-fees award is mandatory under section 2107.006.

The availability of attorney’s fees under a particular statute is a question of law for the court and, therefore, a “jury’s finding about the amount of reasonable attorney’s fees is immaterial to the ultimate legal issue of whether such fees are recoverable under [a particular statute.]” Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (holding that party did not waive its contention that attorney’s fees were not available under particular statute by failing to object to submission of jury question). “A jury can determine the amount of attorney’s fees whether or not they can be recovered under the theory of law submitted to the jury,” id., which is what occurred here. Furthermore, the State asserted its claim that an award of fees is mandatory in its motion to disregard and alternative motion for new trial, which gave the trial court ample opportunity to rule on the availability of fees before an erroneous [*6] judgment was rendered. Id.” State v. Buchanan, No. 03-18-00120-CV, 2019 Tex. App. LEXIS 2340, at *4-6 (Tex. App.—Austin Mar. 27, 2019)

You may preserve your legal sufficiency challenge by virtue of the trial court granting the other side’s motion for judgment notwithstanding the verdict:

Legal sufficiency: “We begin our analysis by addressing appellees’ argument that Hosseini did not preserve her legal sufficiency complaint because she failed to object to the trial court’s final judgment. We disagree. HN3 The granting or denial of a judgment notwithstanding the verdict preserves error regarding the legal sufficiency of the evidence. See, e.g., Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). Hosseini’s legal sufficiency challenge is, therefore, properly preserved.” Hosseini v. Hansen, No. 04-17-00790-CV, 2019 Tex. App. LEXIS 2159, at *7 (Tex. App.—San Antonio Mar. 20, 2019)

You have to raise your complaint in a timely fashion–such as getting a ruling on your motion to sever before the case is submitted to the jury (with right after voir dire being timely), and by objecting to testimony when it is offered, and not silently relying on a motion in limine:

Evidence: “Lawhorn argues that Trooper Germany’s testimony was also inadmissible as to causation. HN2 To preserve a complaint for appellate review, a party must both (1) make a timely request, objection, or motion stating the specific grounds, and (2) secure the court’s ruling on its request, objection, or motion, or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(1), (2). While Lawhorn filed a pre-trial motion to limit or exclude the testimony of Trooper Germany, the record does not reflect any adverse ruling as to the admissibility of Trooper Germany’s testimony nor any objection made during the testimony of Trooper Germany. Therefore, no complaint was preserved for our review. See id.” Lawhorn v. Hidinger, No. 13-16-00423-CV, 2019 Tex. App. LEXIS 2183, at *6 (Tex. App.—Corpus Christi Mar. 21, 2019)

Severance: “Holland argues that American National waived its motion to sever by not presenting it to the court for argument until after voir dire. We disagree.. . . . the Texas Supreme Court has interpreted Rule 41 to mean that “all ‘[p]arties and actions may be severed at any stage of the action, before the time of submission to the jury.'” Id. (emphasis added) (quoting State Dep’t of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993)); see Tex. R. Civ. P. 41. Thus, Rule 41 does not “permit a trial court to sever a case after it has been submitted to the trier of fact.” Cotner, 845 S.W.2d at 819 (emphasis added). A trial court abuses its discretion in ordering a severance after a jury verdict, “regardless of the [three]-pronged test [for] severability.” Arlitt, 1999 Tex. App. LEXIS 8912, 1999 WL 1097101, at *4. Therefore, because American National presented its argument to the court and obtained a ruling prior to the case’s submission to the jury, American National preserved its argument before this Court. See Tex. R. App. P. 33.1.” Am. Nat’l Cty. Mut. Ins. Co. v. Holland, No. 12-18-00141-CV, 2019 Tex. App. LEXIS 2171, at *7-8 (Tex. App.—Tyler Mar. 20, 2019)

Your complaint must be sufficiently specific:

Evidence: “Watts’s brief also challenges the testimony of another witness, Phillip Waldon. After Adviento called Waldon to the stand, but before he began testifying, Watts objected to the admission of any testimony from Waldon because any testimony from him would be prejudicial. But this objection was premature and was not specific and, thus, did not preserve error. See Holmes v. Concord Homes, Ltd., 115 S.W.3d 310, 316 (Tex. App.-Texarkana 2003, no pet.) (“[P]remature objections preserve nothing for review.”); Correa v. Gen. Motors Corp., 948 S.W.2d 515, 518 (Tex. App.-Corpus Christi-Edinburg 1997, no writ) (“[A] preliminary objection to an entire block of anticipated testimony is no substitute for specific objections to allegedly inappropriate matters as they are elicited.”). Additionally, while he was cross-examining Waldon, Watts at one point objected, stating: “I would like for the witness'[s] testimony to be impeached and just struck.” But this objection was insufficiently specific to preserve error. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Campbell v. State, 85 S.W.3d 176, 185 (Tex. 2002) (noting that a specific objection is one that enables the trial court to understand the precise grounds so as to make an informed ruling and that affords the offering party an opportunity to remedy any defect, if possible).” Watts v. Adviento, No. 02-17-00424-CV, 2019 Tex. App. LEXIS 2478, at *18-19 (Tex. App.-Fort Worth Mar. 28, 2019)

The record has to reflect you preserved your complaint:

Evidence: “Underscoring the need for citations to the record, Baish asserts that the trial court improperly excluded evidence. But without record references, Baish has not shown where, how, or even if he preserved his complaints for appellate review. See Tex. R. App. P. 33.1. In her appellee’s brief, Allen attacked Baish’s failure to preserve error. HN7 It is axiomatic that this court cannot consider complaints on appeal that have not been preserved for our review. See Thiessen, 2018 Tex. App. LEXIS 9338, 2018 WL 5993316, at *1, 3; see also Tex. R. App. P. 33.1(a).” Baish v. Allen, No. 02-17-00146-CV, 2019 Tex. App. LEXIS 2229, at *6 (Tex. App.—Fort Worth Mar. 21, 2019)

You have to comply with other pertinent rules:

Emergency: “In the alternative, the City argues that at the time of the accident, Camacho was reacting to another emergency situation—”Obeid’s instructions to change destination while the ambulance was already en route to the hospital on the tollway.” We decline to address the City’s alternative argument because it was not raised below. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”).” City of Hous. v. Hussein, No. 01-18-00683-CV, 2019 Tex. App. LEXIS 2138, at *20 n.4 (Tex. App.—Houston Mar. 19, 2019)

Venue: “We further note that even if we had jurisdiction over Santellana’s and Gulf-Tex’s forum and venue issues, the record does not reflect that either party obtained a ruling on any such motions or objected to the trial court’s failure to rule. Therefore, Santellana and Gulf-Tex have failed to preserve error on this issue. Vela v. Manning, 314 S.W.3d 693, 693-94 (Tex. App.—Dallas 2010, pet. denied). Furthermore, both parties waived their objections to improper venue by failing to file a timely motion to transfer venue. TEX. R. CIV. P. 86(1) (“An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a.”).” Cliff Santellana & Gulf-Tex Roofing & Servs. v. Centimark Corp., No. 01-18-00632-CV, 2019 Tex. App. LEXIS 2612, at *5 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019)

You have to get a ruling on your complaint:

Associate Judge: “Although appellate courts generally do not consider docket entries, “docket entries may be used by appellate courts to determine what transpired in the trial court.” Haut v. Green Cafe Mgmt., Inc., 376 S.W.3d 171, 179 (Tex. App.-Houston [14th Dist.] 2012, no pet.); Buffalo Bag Co. v. Joachim, 704 S.W.2d 482, 484 (Tex. App.-Houston [14th Dist.] 1986, writ ref’d n.r.e.) (observing that the docket entries confirmed that the appellant had filed a motion for new trial with the trial court). The docket confirms that a “Notice of Assignment” of an associate judge was sent on July 27, 2017. However, the docket does not mention any objections relating to the appointment of an associate judge. Jordan has not demonstrated that he filed and presented his objections to the appointment of an associate judge. See Buffalo Bag, 704 S.W.2d at 484. Therefore, Jordan has failed to preserve this issue for appeal. See Tex. R. App. P. 33.1; In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (concluding that even constitutional errors [*8] must be preserved by raising timely objections to the trial court); Flores v. Banner, 932 S.W.2d 500, 502 (Tex. 1996) (acknowledging that an objection to the assignment of a judge can be waived if not properly presented and ruled upon); Sweetwater Austin Properties, L.L.C. v. SOS All., Inc., 299 S.W.3d 879, 891 (Tex. App.-Austin 2009, pet. denied) (same). We overrule Jordan’s second issue.” Jordan v. Menchaca, No. 13-18-00143-CV, 2019 Tex. App. LEXIS 2399, at *7-8 (Tex. App.-Corpus Christi Mar. 28, 2019)

Res Judicata: “Banks’s first issue—complaining that this action is barred by res judicata—is waived. Res judicata is an affirmative defense that prevents the re-litigation of a claim or cause of action that has been finally adjudicated in a prior lawsuit. Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Here, although Banks sought to elicit testimony about Ramin’s prior lawsuit, Banks did not specifically urge the county court to rule on his motion to dismiss or object to a refusal to rule, as was required to preserve the issue for our review. Tex. R. App. P. 33.1(a)(2);” Banks v. Ramin Equities, LLC, No. 01-18-00401-CV, 2019 Tex. App. LEXIS 2134, at *7 (Tex. App.—Houston [1st Dist] Mar. 19, 2019)

All for now.  I hope this helps.

Yours,

Steve Hayes (www.stevehayeslaw.com; shayes@stevehayeslaw.com)

Error Preservation in Texas Civil Cases, March 18, 2019

March 16, 2019

Dear All:

I’ve gotten a little closer to catching up, owing to the fact that the courts of appeals did not issue a lot of error preservation decisions in the last couple of weeks.

The topics included in this blog entry include:

You have to obtain a ruling on your complaint

Venue

You have to comply with the pertinent rules

Factual Sufficiency

Now for the cases:

You have to obtain a ruling on your complaint:

Venue: “To the extent that Wade’s “Motion to Dismiss” could reasonably be construed as a motion to transfer venue—which we think it could not, and which argument Wade does not make, in any event—the record does not reflect that he requested or obtained a hearing on the motion and did not obtain a ruling on it, which omissions would also waive his venue objection. See Eggert v. State, No. 03-12-00190-CV, 2013 Tex. App. LEXIS 5107, 2013 WL 1831614, at * 1 (Tex. App.—Austin Apr. 24, 2013, no pet.) (mem. op.)” Wade v. TBF Fin., LLC, No. 03-18-00370-CV, 2019 Tex. App. LEXIS 1675, at *4 n.1 (Tex. App.—Austin Mar. 6, 2019)

You have to comply with the pertinent rules:

Factual Sufficiency: “In addition, Rule 324 of the Texas Rules of Civil Procedure requires a motion for new trial in order to preserve “[a] complaint of factual sufficiency of the evidence to support a jury finding.” In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (citing Tex. R. Civ. P. 324(b)(2)); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991). Where, as here, A.A. failed to file a [*5] motion for new trial raising a factual sufficiency challenge to the jury’s verdict, the issue has not been preserved for our review.” In the Interest of A.R.G.-A., No. 06-18-00103-CV, 2019 Tex. App. LEXIS 2102, at *4-5 (Tex. App.—Texarkana Mar. 15, 2019)

All for now.  More later.

Yours,

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

Texas Civil Error Preservation Update, March 9, 2019

March 9, 2019

Dear All:

I’ve been delinquent on this update for a while now; between the day job and rehabbing from rotator cuff surgery, I’ve had to postpone some of the more joyful things in my life, like updating this post and eating ice cream right-handed.  I’ve still not caught up here, but will try to get to that point by next weekend.

There are some good, and scary reminders, in this blog entry, including:

Some issues–like the fact that an expert’s opinion is conclusory, and lack of subject matter jurisdiction–may be raised for the first time on appeal

Expert (conclusory opinion)
Subject Matter Jurisdiction
Subject Matter Jurisdiction

If your complaint is not sufficiently specific, you have not preserved that complaint

Evidence
Evidence
Expert Report
Expert Report

One of the few instances where I have seen a court of appeals hold that a failure to comply with a pertinent rule does not amount to a waiver of error because of the importance of the fundamental issue involved–in this case, the failure of a father to appear at a hearing despite a bench warrant being issued for his presence

Continuance

Don’t insist on the trial court finalizing a judgment when it has not addressed your claim for attorney’s fees–otherwise, the invited error doctrine may preclude you complaining on appeal

Attorney’s Fees

You have to comply with other pertinent rules

Offset
Offer
Notice

You have to raise your complaint in a timely fashion

Limitations

You have to get a ruling on your complaint

Discovery

What follows are the blurbs from the cases.

Some issues–like lack of subject matter jurisdiction–may be raised for the first time on appeal:

Expert (conclusory opinion): “The conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgment. Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013). n. 6 An opinion is conclusory and cannot be considered probative evidence if it lacks a factual basis or is made in reliance on a basis that does not support the opinion. City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). Expert opinions must be supported by facts in evidence, not conjecture. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003). Courts are not required to ignore fatal gaps in an expert’s analysis or assertions. Elizondo, 415 S.W.3d at 264. We conclude that Ziegler’s opinion that Hunting manufactured the retainer nut at issue prior to December 21, 2012, is contrary to the evidence [*12] on which he purports to rely, lacks factual support, and relies on conjecture and speculation. As such, Ziegler’s opinion is conclusory and thus insufficient to create a question of fact to defeat summary judgment.

n. 6 Although Gonzalez argues that Hunting failed to preserve a challenge to the reliability of Ziegler’s opinions by not obtaining a ruling on its objections, HN7 no objection is required to preserve a complaint that an expert’s opinion is conclusory. See City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004).” Gonzalez v. Hunting Energy Servs., No. 14-17-00877-CV, 2019 Tex. App. LEXIS 1393, at *11 n.6 (Tex. App.—Houston [14th Dist.] Feb. 26, 2019)

Subject Matter Jurisdiction: “Amaya argues that the State waived the issue of the trial court’s jurisdiction by failing to object either after receiving notice of his petition for non-disclosure or a copy of the trial court’s order. However, a relator, [*3] including the State, need not object to an order issued by a trial court prior to filing a petition for a writ of mandamus in an appellate court when the order is void. . . . .This is true because lack of jurisdiction is a fundamental error and may be raised for the first time in an appellate court. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). Additionally, subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel. . . . Assuming without deciding that the State did have notice of Amaya’s petition for non-disclosure and the trial court’s ruling, the lack of an objection does not preclude the State’s present petition for writ of mandamus as the trial court lacked jurisdiction to enter the order of non-disclosure.” In re State ex rel. Parsons, No. 10-17-00216-CV, 2019 Tex. App. LEXIS 91, at *2-3 (App.—Waco Jan. 9, 2019)

Subject Matter Jurisdiction: “In her first issue, Lisa contends her revocation of her relinquishment of parental rights deprived the trial court of jurisdiction to terminate her parental rights on any ground, voluntary or involuntary. Lisa did not raise this argument in the trial court. Ordinarily, a party may not complain on appeal of an issue she did not raise in the trial court. Tex. R. App. P. 33.1(a). However, a [*14] trial court’s subject matter jurisdiction is an issue that cannot be waived, and it may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). As stated, neither alleged revocation is in the appellate record or appears to have been offered at trial. Because we conclude the trial court had jurisdiction irrespective of Lisa’s revocation, we assume for this discussion Lisa properly revoked her relinquishment.” In the Interest of Z.Q.N., No. 14-17-00434-CV, 2019 Tex. App. LEXIS 1262, at *13-14 (Tex. App.—Houston [14th Dist.] Feb. 21, 2019)

If your complaint is not sufficiently specific, you have not preserved that complaint:

Evidence: “Although Kirk raises a number of other arguments challenging the trial court’s admission of other exhibits attached to Holiday’s affidavit, those arguments are waived. To preserve an issue for review, the complaining party must state a clear and specific objection that enables the trial court to make an informed ruling on the objection and that affords the opposing party an opportunity to remedy the defect, if possible. McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989); see also Tex. R. App. P. 33.1(a). As mentioned above, Kirk cited Jenkins [*18] in her objection to the business-records evidence. Jenkins did not involve the kinds of challenges that Kirk makes here, such as her objection that the Trust failed to lay a proper predicate for summary records. Jenkins, as discussed at length above, concerned documents related to proving that a debt was assigned to another. Kirk’s objection lacked the level of clarity and specificity necessary to preserve her challenges that were unrelated to the issue of assignment.” Kirk v. Nat’l Collegiate Student Loan Tr. 2003-1, No. 01-17-00722-CV, 2019 Tex. App. LEXIS 1514, at *17-18 (Tex. App.—Houston [1st Dist.] Feb. 28, 2019)

Evidence: “As part of this issue, Father asserts that the trial court should have [*35] granted his failure-to-lay-proper predicate objection to the Harris County decree and to our judgment because the Department did not show that the decree was final. However, Father neither mentioned the pending petition for review in the trial court, nor did he argue that the Department had not laid the proper predicate because the petition for review was pending. Instead, Father generally objected that the proper predicate had not been laid. To preserve a complaint for appellate review, a party must state an objection clearly and with sufficient specificity to make the trial court aware of the particular grounds for the complaint. See Tex. R. App. P. 33.1(a); McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989). Here, Father’s general objection that the Department had not laid a proper predicate was not specific enough to preserve the alleged error he now complains of on appeal. See Waldon v. City of Longview, 855 S.W.2d 875, 878 (Tex. App.—Tyler 1993, no writ) (holding objection that party failed to lay proper predicate for introduction of statement into evidence was too general to preserve error); see also Schreiber v. Cole, No. 07-13-00361-CV, 2015 Tex. App. LEXIS 5098, 2015 WL 2400242, at *5 (Tex. App.—Amarillo May 19, 2015, no pet.) (mem. op.) (holding that objection that evidence was inadmissible because “it’s not been proved up” was not specific enough to preserve error).” In the Interest of R.J., No. 01-18-00729-CV, 2019 Tex. App. LEXIS 760, at *34-35 (Tex. App.—Houston Feb. 5, 2019)

Expert Report: “On appeal, Dr. Scherer contends that the reports (1) contradict themselves about the standard of care for use of Prilocaine, and (2) fail to explain how an endodontist/dentist should recognize a complication from the anesthetic. Dr. Scherer’s argument that the reports are contradictory regarding the standard of care is based on Dr. Maranga’s statements that (1) the use of Prilocaine on a patient undergoing a root canal is a deviation from the standard of care but also (2) “[c]onsiderable caution must be followed when and if” Prilocaine is used as an anesthetic. Dr. Scherer argues that if the use of Prilocaine is prohibited, one should not need to use “considerable caution” when using the drug or “recognize complications” of it. He concludes that “Dr. Maranga’s standard-of-care statement based on prohibition is inadequate because she admits that providers uses [sic] the anesthetic.” At the outset, we must address Gandy’s contention that this particular objection has been waived by Dr. Scherer, as [*8] it was not made within twenty-one days of receipt of Dr. Maranga’s supplemental report. See, e.g., Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 493 (Tex. App.—Dallas 2010, no pet.) (any objections to expert report other than objections made within twenty-one-day period are waived); Williams v. Mora, 264 S.W.3d 888, 890-91 (Tex. App.—Waco 2008, no pet.) (same). After reviewing the record, we conclude that Dr. Scherer has not waived consideration of this complaint. He timely objected that Dr. Maranga’s expert reports “failed to articulate the standard of care,” and he specifically alleged that the only “identifiable and explicitly stated standard of care” was Dr. Maranga’s assertion that “the standard of care required Dr. Scherer to recognize that an anesthetic reaction was occurring and stop the procedure.” In our view, these objections to potential deficiencies in Dr. Maranga’s statements on the standard of care were adequate to encompass Dr. Scherer’s complaint.” Scherer v. Gandy, No. 07-18-00341-CV, 2019 Tex. App. LEXIS 1554, at *7-8 (Tex. App.—Amarillo Feb. 28, 2019)

Expert Report: “In his objections filed with the trial court, Dr. Scherer made specific challenges to the adequacy of Dr. Maranga’s reports as to her opinions on the applicable standards of care, Dr. Scherer’s alleged breaches of the standards, and the causal relationship between any breach and Gandy’s injuries. Dr. Scherer [*17] did not complain that Gandy’s allegation of dental negligence did not encompass the allegedly negligent acts and omissions highlighted in Dr. Maranga’s reports, nor did he complain that the contentions in the reports regarding the use of Prilocaine and Gandy’s adverse reaction to it failed to show that her claim of an “overly aggressive root canal treatment” had merit. Dr. Scherer contends that his general objection that Gandy “failed to provide a basis for [the] trial court to conclude that her case has any merit” served to preserve the specific complaint he now raises on appeal. We disagree. His general objection did not apprise the trial court of this specific challenge to an alleged lack of correlation between Gandy’s pleadings and her expert’s reports. See Maxwell v. Martin, No. 14-11-00392-CV, 2012 Tex. App. LEXIS 1069, at *22-23 (Tex. App.—Houston [14th Dist.] Feb. 9, 2012, no pet.) (mem. op.) (“We cannot hold the trial court abused its discretion by determining Dr. Glass adequately demonstrated that Martin’s claims have merit despite the purported deficiencies in his report cited by Dr. Maxwell on appeal when Dr. Maxwell did not specifically inform the court of those deficiencies.”). Therefore, this objection has been waived.” Scherer v. Gandy, No. 07-18-00341-CV, 2019 Tex. App. LEXIS 1554, at *16-17 (Tex. App.—Amarillo Feb. 28, 2019)

Here is one of the few instances where I have seen a court of appeals hold that a failure to comply with a pertinent rule does not amount to a waiver of error because of the importance of the fundamental issue involved–in this case, the failure of a father to appear at a hearing despite a bench warrant being issued for his presence:

Continuance: “In this case, counsel indicated in her (oral, unsworn) motion that she did not know why Father was not present since he had been properly bench warranted. The children’s attorney ad litem echoed counsel’s lack of information when, after the close of evidence, he stated to the trial court: “Judge, I believe [*17] there is an issue with the outstanding — with respect to his lack of presence here today. I believe it would be appropriate, as he was bench warranted here, to have — allow him to be present. I’m not sure what happened with the bench warrant.” Father could not appear at trial absent compliance with the bench warrant by the Harris County Sheriff’s Office. Father’s non-appearance was clearly unanticipated, and counsel did not have personal knowledge of the possible reason for Father’s failure to appear. Given these facts, and the fundamental constitutional right at issue, we decline to apply the presumption that arises from failure to comply with Rule 251.” In the Interest of L.N.C., No. 14-18-00691-CV, 2019 Tex. App. LEXIS 645, at *16-17 (App.—Houston [14th Dist.] Jan. 31, 2019) As the concurrence and dissent pointed out, though: “The Supreme Court of Texas additionally has held that a parent inmate does not have the absolute right to be present at a trial in which the termination of parental rights is at stake. See In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).” In the Interest of L.N.C., No. 14-18-00691-CV, 2019 Tex. App. LEXIS 645, at *28 (App.—Houston [14th Dist.] Jan. 31, 2019)

Don’t insist on the trial court finalizing a judgment when it has not addressed your claim for attorney’s fees–otherwise, the invited error doctrine may preclude you complaining:

Attorney’s Fees: “While we have recognized the trial court’s error in completely [*19] denying Izen’s claim for the attorney’s fees associated with his claim to foreclose on Cook’s note, we conclude the trial court’s judgment should not be reversed based on that error. When the trial court announced its ruling [on the parties’ respective motions for summary judgment] denying all claims for attorney’s fees, the ruling was proper because the ruling meant only that a fact issue existed on whether the fees were reasonable. In this case, the trial court’s error occurred when the trial court made what should have been an interlocutory ruling final. By suggesting to the trial court that the court make its rulings final, Izen invited that error. Under the invited-error doctrine, we cannot overturn a judgment that resulted from the trial court’s agreement to comply with a request made by the party who is complaining about the ruling on appeal. See Tex. R. App. P. 33.1; Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (explaining that under the invited-error doctrine, a party cannot complain on appeal about an action that party specifically requested). The invited-error doctrine applies to Izen’s and to Izen’s and Cooley’s claims for attorney’s fees.” Cook v. Izen, No. 09-17-00025-CV, 2019 Tex. App. LEXIS 663, at *18-19 (App.—Beaumont Jan. 31, 2019)

You have to comply with other pertinent rules:

Notice: “Lastly, Kirk contends that because the Trust did not produce any documents establishing that it notified Kirk that it was accelerating her loan following her failure to maintain the monthly payments, the Trust was entitled to recover past-due payments only and not the full amount. Again, Kirk waived this issue by not filing a verified denial that raised it. See Tex. R. Civ. P. 93(12) (stating that party’s failure to file verified denial “[t]hat notice and proof of loss or claim for damage has not been given as alleged” results in “notice [*24] and proof . . . be[ing] presumed”); see also Brown, 414 S.W.3d at 285-86. We therefore reject Kirk’s notice-of-acceleration argument.” Kirk v. Nat’l Collegiate Student Loan Tr. 2003-1, No. 01-17-00722-CV, 2019 Tex. App. LEXIS 1514, at *23-24 (Tex. App.—Houston [1st Dist.] Feb. 28, 2019)

Offer: “Specifically, Kirk maintains that the Trust failed to present sufficient evidence establishing her acceptance of an offer. However, Rule of Civil Procedure 93(7) states that a party denying that she executed a written instrument must file a verified denial to that effect, otherwise the “instrument shall be received in evidence as fully proved.” Kirk did not file a verified denial that denied her acceptance of the loan at issue, and therefore her acceptance argument is waived.” Kirk v. Nat’l Collegiate Student Loan Tr. 2003-1, No. 01-17-00722-CV, 2019 Tex. App. LEXIS 1514, at *20 (Tex. App.—Houston [1st Dist.] Feb. 28, 2019)

Offset: “Barclay failed to plead offset and Barclay does not argue the parties tried the defense by consent other than to state the issue was an evidentiary issue, and Richey did not object to evidence of her payments to Richey. In any case, Barclay did not request or submit proposed questions or instructions for the jury to make any findings related to the defense of offset as to the damages awarded Richey for paying off Barclay’s mortgage. As a result, regardless of whether the issue questioning the factual sufficiency of the evidence supporting the damages awarded to Richey for the payoff of Barclay’s mortgage is properly before us, Barclay waived this issue by failing to request findings concerning her alleged offset. See Lone Starr, 365 S.W.3d at 704; Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 862 (Tex. App.—Fort Worth 2003, pet. denied); see also Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 272, 274. We affirm the trial court’s award of unjust enrichment damages in the amount of $78,733.15 to Richey for paying off Barclay’s mortgage.” Barclay v. Richey, No. 09-17-00026-CV, 2019 Tex. App. LEXIS 456, at *19 (App.—Beaumont Jan. 24, 2019)

You have to raise your complaint in a timely fashion:

Limitations: “The record shows that in September 2015, Izen sued Cook alleging that she was in default on her note, so he sued more than five years after Cook quit making the monthly installment payments required by her note. Our review of Cook’s pleadings reveals that she failed to plead limitations until after the trial court granted Izen’s motion. Under Rule 94 of the Texas Rules of Civil Procedure, limitations is an affirmative defense that must be pleaded to avoid waiver. Tex. R. Civ. P. 94. Under Texas law, “[a]n affirmative defense that is not pleaded or proved and on which findings are not obtained is waived and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial.” Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999, no pet.)).

While a statute of limitations defense is an issue that the parties can try by consent, a trial by consent did not occur based on the record of the proceedings in this case. The record shows that Izen objected when Cook raised limitations for the first time in her motion to reconsider. See Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (explaining the record did not support the appellant’s claim that the parties tried a statute of limitations issue by consent). It also shows that the trial court denied Cook’s [*15] request to reconsider after informing Cook that her request to reconsider was untimely. Thus, the trial court never reached the merits of Cook’s claim that Izen’s breach of contract claim was barred by limitations. Because Cook failed to timely raise a limitations defense, we hold that she waived the defense and cannot rely on the defense to overturn the ruling the trial court made on Izen’s claim.” Cook v. Izen, No. 09-17-00025-CV, 2019 Tex. App. LEXIS 663, at *14-15 (App.—Beaumont Jan. 31, 2019)

You have to get a ruling on your complaint:

Discovery: “Antero conditionally argues that we should remand without rendering judgment dismissing EnerQuest in order to permit the trial court to consider whether more jurisdictional discovery is warranted. But Antero does not direct us to anywhere in the record to show that the motion for continuance was ruled on and we have not located any ruling in the record. Accordingly, any error in the failure to permit jurisdictional discovery prior to the special appearance hearing has not been preserved for our review. See Tex. R. App. P. 33.1(a)(2); Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiffs] failed to obtain a ruling from the trial court on the motion for continuance and therefore, failed to preserve error.”).” Enerquest Oil & Gas, L.L.C. v. Antero Res. Corp., No. 02-18-00178-CV, 2019 Tex. App. LEXIS 688, at *7 n.6 (App.—Fort Worth Jan. 31, 2019)

There were tons of cases in which parties did not preserve their complaints because they did not raise the complaint at all.  I won’t go into those here.

I hope this helps.  More soon–I hope.

Y’all take good care.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, January 20, 2019

January 15, 2019

Dear All:

After a big push to get cases out the door before the end of the year, the courts seem to have taken a little breather.  So we do not have many error preservation rulings in the first three weeks of the new year.

The topics included in this blog entry include:

Some issues–like lack of subject matter jurisdiction–may be raised for the first time on appeal

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

You have to comply with other pertinent rules–e.g., if your evidence is excluded, you must make an offer of proof

Some issues–like lack of subject matter jurisdiction–may be raised for the first time on appeal:

Subject Matter Jurisdiction: “Amaya argues that the State waived the issue of the trial court’s jurisdiction by failing to object either after receiving notice of his petition for non-disclosure or a copy of the trial court’s order. However, a relator, [*3] including the State, need not object to an order issued by a trial court prior to filing a petition for a writ of mandamus in an appellate court when the order is void. . . . .This is true because lack of jurisdiction is a fundamental error and may be raised for the first time in an appellate court. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). Additionally, subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel. . . . Assuming without deciding that the State did have notice of Amaya’s petition for non-disclosure and the trial court’s ruling, the lack of an objection does not preclude the State’s present petition for writ of mandamus as the trial court lacked jurisdiction to enter the order of non-disclosure.” In re State ex rel. Parsons, No. 10-17-00216-CV, 2019 Tex. App. LEXIS 91, at *2-3 (App.—Waco Jan. 9, 2019)

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

Evidence: “Stephens & Myers objected to the testimony but did not object on the grounds that the testimony “included pure questions of law and was unreliable”; the only objection went to a failure to disclose. To preserve error for appeal, the argument made in the trial court must comport with the argument made on appeal. See Tex. R. App. P. 33.1(a); Santander Consumer USA, Inc. v. Mata, No. 03-14-00782-CV, 2017 Tex. App. LEXIS 2631, 2017 WL 1208767, at *3 (Tex. App.—Austin Mar. 29, 2017, no pet.). Stephens & Myers has waived its complaint that Johnston’s testimony “included pure questions of law and was unreliable.”” Stephens v. Three Finger Black Shale P’ship, No. 11-16-00177-CV, 2018 Tex. App. LEXIS 10921, at *90 (App.—Eastland Dec. 31, 2018)

You have to comply with other pertinent rules–e.g., if your evidence is excluded, you must make an offer of proof:

Evidence: “Mitchell then asked the trial court, “So in essence you have eliminated [*6] all my evidence?” When the trial court indicated that it had, Mitchell responded, “Of course, I object to that,” but she did not make an offer of proof. Cf. Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2). While her “Defendant’s List of Exhibits,” listing ten of the twelve items she attempted to offer into evidence, was filed in the clerk’s record, only nine of the items were filed in the clerk’s record. . . .But before we consider whether an abuse of discretion has occurred, the error must be preserved for our review. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(2). No amount of inapplicable legal principles or misused legal jargon can overcome the threshold requirement that error, if any, must be preserved. And, at the end of the day, Mitchell failed to make the required offer of proof at trial necessary to preserve her evidentiary complaints.” Mitchell v. Wilmington Sav. Funds Soc’y, No. 02-18-00089-CV, 2019 Tex. App. LEXIS 144, at *7 (App.—Fort Worth Jan. 10, 2019)

Then there were a few cases in which the parties failed to raise their complaints in the trial court.

All for now.  I hope this helps.

Yours, Steve Hayes

www.stevehayeslaw.com; shayes@stevehayeslaw.com

Error Preservation in Texas Civil Cases, Wrapping Up 2018

January 1, 2019

Dear All:

Welcome to 2019!  I hope this New Year becomes your best ever.

I’ve failed to update this for way too long, so this is longer than it should be. The topics included in this blog entry include cases addressing the following:

Always have a prayer for general relief in your pleading

Some issues–like exclusive jurisdiction, the contention that an expert’s report was in fact not the report of an expert at all, and the lack of personal knowledge in an affidavit–can be raised for the first time on appeal

We have several cases in which courts of appeals dealt with specificity on complaints involving retention of counsel, damages, discovery, evidence, and legal and factual sufficiency

There are several additional cases in which the trial court held that parties preserved their complaints concerning attorney’s fees, contracts, evidence, the jury charge, valuations, visitation, and voir dire

When you object to an instruction, on the same grounds you raise on appeal, which the trial court included in the charge, you will have preserved a complaint to that instruction

Your complaint must be timely as to:

Choice of Law
Expert Report
Notice
Visiting Judge

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

Arbitration
Evidence
Exclusive jurisdiction
You have to comply with the pertinent rules
Continuance

You must get a ruling on your complaint on:

Discovery
Jury Charge

Now, on to the specific cases.

Here is a case which reminds us why we should always have a prayer for general relief in our pleading:

Pleading: “A general prayer for relief will support any relief raised by the evidence that is consistent with the allegations and causes of action stated in the petition.” Moran v. Williamson, 498 S.W.3d 85, 93 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); accord Salomon v. Lesay, 369 S.W.3d 540, 553 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Lewis did not pray for general relief in her live pleading, though. Instead, she prayed for a specific calculation of damages for her breach of contract claim. She prayed for “the value of the property less the remaining payments [she] would have made to Silberstein under the contract for deed” or alternatively, for “the amount [she] would have to pay to reclaim the property from [the purchaser at the foreclosure sale].” The trial court’s restitution award does not reflect either of these proposed measurements.” Silberstein v. Lewis, No. 01-17-00294-CV, 2018 Tex. App. LEXIS 10648, at *7-9 (App.—Houston [1st Dist.] Dec. 20, 2018)

Some issues–like exclusive jurisdiction, the contention that an expert’s report was in fact not the report of an expert at all, and the lack of personal knowledge in an affidavit–can be raised for the first time on appeal:

Expert’s report: “Because Pogue [*10] does not purport to have expertise about the appropriate standards of care for discharging a firearm, let alone for operating a sport shooting range, and because his report does not provide opinions about such standards, we hold that Pogue is not an “expert” under section 128.051 and that his report is neither an “expert report” under section 128.051 nor a good faith effort to constitute the same. The Stinsons therefore failed to serve an “expert report” under section 128.053. See id. §§ 128.051(3)(A), (4), .053(a), (e). Consequently, there is also no merit to the Stinsons’ argument that relators waived their objections to Pogue’s report by not asserting them within twenty-one days after they received it.  Section 128.053(a) requires only that objections to an expert report be filed and served within twenty-one days; because Pogue’s report constituted no report at all under chapter 128, relators’ obligation to object was never triggered.” In re Wade, No. 02-18-00323-CV, 2018 Tex. App. LEXIS 10656, at *9 (App.—Fort Worth Dec. 20, 2018)

Jurisdiction: “Subject-matter jurisdiction is essential to a court’s authority to decide a case, cannot be waived, and may be raised for the first time on appeal. A. Inverse condemnation. The River Authority asserts for the first time on appeal that the Harris County district courts lack jurisdiction over the inverse-condemnation claims because the Harris County county civil courts at law have exclusive subject-matter jurisdiction over such claims pursuant to Government Code subsection 25.1032(c).” San Jacinto River Auth. v. Burney, Nos. 01-18-00365-CV, 01-18-00406-CV, 01-18-00407-CV, 2018 Tex. App. LEXIS 9891, at *4 (App.—Houston [1st Dist.] Dec. 4, 2018)

Jurisdiction: “The County argues for the first time on appeal that its governmental immunity has not been waived and the trial court lacks subject-matter jurisdiction over the claim because it did not receive notice of the claim against it within six months of “the day that the incident giving rise to the claim occurred,” as required by the TTCA. Tex. Civ. Prac. & Rem. Code § 101.101(a). “Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental [*9] entity.” Tex. Gov’t Code § 311.034. Subject-matter jurisdiction is essential to a court’s authority to decide a case, cannot be waived, and may be raised for the first time on appeal. Jefferson Cty. v. Farris, No. 01-17-00493-CV, 2018 Tex. App. LEXIS 10885, at *8-9 (App.—Houston [1st Dist.] Dec. 28, 2018)

Summary Judgment: “Houle contends on appeal as he did in the trial court that Trittipoe failed to demonstrate adequate personal knowledge underlying her testimony for proving up the attached Capital One business records. We have previously held that a lack of personal knowledge, reflected in the affiant’s testimony itself and not just as the lack of a formal recitation, is a defect of substance that may be raised for the first time on appeal.” Houle v. Capital One Bank (USA), N.A., No. 08-16-00234-CV, 2018 Tex. App. LEXIS 10538, at *14 (App.—El Paso Dec. 19, 2018)

On rare occasion, a court of appeals decides an error preservation issue based on whether the complaint at trial was sufficiently specific to make the trial court aware of the complaint. Here, we have several cases in which courts of appeals dealt with specificity on complaints involving retention of counsel, damages, discovery, evidence, and legal and factual sufficiency:

Attorney: “We hold Mother’s contention that the associate judge denied her right to due process for failing to allow her to retain counsel of her choice has not been preserved for our review. First, the record does not establish that Mother asked that she be permitted to retain counsel of her choosing or that she had the ability to do so at the time counsel made the oral motion. When the associate judge discussed the matter with counsel on the record, he specifically referenced appointment of new counsel. Mother’s appointed counsel made no reference to retention of counsel or any statement to that effect. Thus, Mother’s request was not sufficiently specific to make the trial court aware of her complaint, and the grounds were not apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A). Additionally, Mother’s request below does not comport with her complaint on appeal — requesting withdrawal of current appointed counsel and substitution of new appointed counsel [*9] versus requesting withdrawal of current appointed counsel and being given leave to find new retained counsel — thereby waiving appellate review.” In re R.L.L., No. 04-18-00240-CV, 2018 Tex. App. LEXIS 9526, at *8-9 (App.—San Antonio Nov. 21, 2018)

Attorney: “Finally, even a complaint that a party’s due process rights have been denied must be preserved by a proper objection or request. See In re C.J.P., No. 09-15-00370-CV, 2016 Tex. App. LEXIS 568, 2016 WL 240793, at *2 (Tex. App.—Beaumont Jan. 21, 2016, no pet.) (mem. op.); In re G.T., No. 04-16-00436-CV, 2016 Tex. App. LEXIS 13713, 2016 WL 7445037, at *1-*2 (Tex. App.—San Antonio Dec. 28, 2016, no pet.) (mem. op.); J.S. v. Tex. Dep’t of Family and Protective Servs., 511 S.W.3d 145, 156 (Tex. App.—El Paso 2014, no pet.); In re J.N., 2014 Tex. App. LEXIS 11101, 2014 WL 4978656, at *2. Mother did not, at any time in the courts below — either during the final hearing before the associate judge nor before the trial court during de novo review — make a constitutional objection or otherwise make either court aware that she was raising a due process claim based on the trial court’s failure to allow her to obtain retained counsel. Rather, before the associate judge, counsel for Mother merely announced not ready due to Mother’s arrest and then stated Mother had requested that “she get another attorney.” At the de novo hearing, when the trial court noted Mother had new counsel, the new attorney merely confirmed his appearance and substitution. He did not raise a complaint about a denial of Mother’s due process rights based [*10] on Mother’s request for “another attorney” before the final hearing in front of the associate judge. Thus, we hold Mother has not preserved her due process complaint for appellate review.” In re R.L.L., No. 04-18-00240-CV, 2018 Tex. App. LEXIS 9526, at *9 (App.—San Antonio Nov. 21, 2018)

Evidence: “To preserve an issue for appellate review, the complaining party must show that he made his complaint to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1). Fenlon’s general statements at the hearing before the tax master that Propel’s evidence did not support its claim and that Propel made errors in calculating the balance on the Note were not sufficiently specific to preserve any complaint concerning Propel’s evidence.” Fenlon v. Harris Cty., No. 01-17-00877-CV, 2018 Tex. App. LEXIS 10633, at *25 (App.—Houston [1st Dist.] Dec. 20, 2018)

Damages: “Cho asserts as an initial matter that, by permitting Kim and Lee to recover damages for both “Misapplication of initial investment” and “Construction Costs,” the trial court’s final judgment impermissibly grants Kim and Lee a double recovery. Kim and Lee contend that Cho waived any error with respect to this contention. We reject their waiver argument. . . . The arguments raised in Cho’s post-verdict motions preserve his double recovery argument for our review. In his new trial motion, Cho objected to the amounts the jury assessed for “Misapplication of initial investment” and “Construction [*40] Costs,” asserting that the dollar amounts were “excessive.” In his motion to modify, correct, or reform the final judgment, Cho challenged the final judgment’s award of damages for “Misapplication of initial investment” and “Construction Costs,” arguing that the damages award “violated the one-satisfaction rule.” Cho requested that the final judgment be corrected to reflect that Kim and Lee were entitled only to a single recovery. These arguments preserve the double recovery challenge Cho advances on appeal.” Cho v. Kun Sik Kim & Veronica Young Lee, No. 14-16-00962-CV, 2018 Tex. App. LEXIS 10871, at *38-40 (App.—Houston [14th Dist.] Dec. 28, 2018)

Discovery: “But POE did not assert the lack-of-relevance arguments in the trial court with the same specificity as it presents those arguments to this Court. For example, POE’s objections to the requests for production are general, form objections and do not explain how the requests are overly broad or why the requests fail “to contain reasonable subject-matter, temporal, and geographic limitations.” Similarly, POE did not explain in its motion to reconsider the associate judge’s first order why the requests seek irrelevant information. POE’s response to Torres’ second answer reiterates that the issue to be determined is whether there is substantial evidence to support the TWC decision and avers that the requests for production “have nothing to do with the extremely narrow issue before the Court-whether the TWC properly [*11] determined Plaintiff was an independent contractor rather than an employee.” POE did not, however, explain specifically that the requests seek irrelevant information because they relate to workers other than Torres and, as such, cannot support Torres’ arguments regarding her individual employment status.” In re Pursuit of Excellence, No. 05-18-00672-CV, 2018 Tex. App. LEXIS 10317, at *10-11 (App.—Dallas Dec. 13, 2018)

Factual Sufficiency: “Though Lott’s motion for new trial mischaracterized the basis for his attack on the damages questions, assertions that the evidence was “insufficient” or “against the great weight and preponderance of the evidence” are both generally classified as issues challenging the factual sufficiency of the evidence. See W. Wendell Hall, Standards of Review in Texas, 38 St. Mary’s L.J. 47, 261 (2006). Lott specifically identified the jury questions he contended were not supported by the evidence and asserted the evidence presented at trial did not support the damages award. Though the motion could have been more specific, we hold it was sufficient to preserve error on his factual sufficiency issues. See Superior Trucks, Inc. v. Allen, 664 S.W.2d 136, 145 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).” Lott v. Brown, No. 12-17-00093-CV, 2018 Tex. App. LEXIS 9676, at *8-9 (App.—Tyler Nov. 28, 2018)

Legal Sufficiency: “Likewise, we conclude Lott preserved his legal sufficiency issue. In his motion for new trial, Lott asserted the evidence conclusively proves, as a matter of law, that Brown was not entitled to recover damages related to the painting because Brown did not complete it and Lott did not accept the painting such as to obligate Lott to pay [*9] Brown under either a contractual or quantum meruit theory. Brown had the burden of proving the damages he sustained in Questions five and seven of the charge. Though Lott’s motion incorrectly labeled his attack “as a matter of law” rather than as a “no evidence” challenge, he identified the basis under which he contended the evidence did not legally support the jury’s award. As such, we conclude that Lott’s motion for new trial preserved error on his legal sufficiency point as to the damages questions.” Lott v. Brown, No. 12-17-00093-CV, 2018 Tex. App. LEXIS 9676, at *8-9 (App.—Tyler Nov. 28, 2018)

Here are several additional cases in which an appeals court held that parties preserved their complaints concerning attorney’s fees, contracts, evidence, the jury charge, valuations, visitation, and voir dire:

Attorney’s Fees: “American Dream requested attorney’s fees in its petition. At trial, its attorney testified as to its fees. After trial, American Dream included the fees that it had incurred through trial in its proposed judgment and discussed these fees in its supporting brief. This suffices to preserve for review American Dream’s challenge to the trial court’s complete denial of fees. See Tex. R. App. P. 33.1(a); Elliott v. Kraft Foods N. Am., 118 S.W.3d 50, 55 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (challenge to trial court’s denial of fees preserved by fee request at trial and inclusion of fees in proposed judgment).” KKR RV’s, LLC v. Anderson, No. 01-18-00178-CV, 2018 Tex. App. LEXIS 9901, at *7 (App.—Houston [1st Dist.] Dec. 4, 2018)

Contract: “Before we address the [*26] merits, we first consider the Fleming Firm’s contention that appellants did not preserve their argument in the trial court. At the pre-trial hearing, the trial judge initially indicated that he did not consider appellants to be beneficiaries of the MSA. Later, after trial commenced, appellants requested a specific ruling on whether they could present the MSA to the jury as a contract to which appellants were third-party beneficiaries. The Fleming Firm argued that appellants should not be allowed to proceed on their breach of the MSA claim, and the trial court “sustained” “the objection.” We construe the trial court’s ruling as overruling appellants’ request to proceed on their breach of the MSA theory. Accordingly, appellants preserved error on this point” Harpst v. Fleming, No. 14-17-00209-CV, 2018 Tex. App. LEXIS 10719, at *24-26 (App.—Houston [14th Dist.] Dec. 21, 2018)

Evidence: “Peterson contends that any complaint regarding her evidentiary burden is not preserved for our review because the City failed to object in the trial court. The record demonstrates otherwise. When arguing against the Rule 202 petition at the hearing thereon, the City’s counsel specifically complained that Peterson “offered no evidence for that petition.” Because the City alerted Respondent to the lack of evidence supporting Peterson’s petition, its complaint is preserved for appellate review. See Tex. R. App. P. 33.1.” In re City of Tatum, No. 12-18-00285-CV, 2018 Tex. App. LEXIS 10742, at *7 n.2 (App.—Tyler Dec. 21, 2018)

Jury Charge (Damages): “Appellants complain the damages submitted by the trial [*23] court in question four of the charge were an improper measure of damages for a negligent misrepresentation. n. 11 n. 11 Appellants preserved this complaint by objecting, during the charge conference, that appellees were not entitled to recover benefit-of-the-bargain damages, the “damages submissions” were “not pursuant to any statute, any case,” and the damage questions were “not in conformance with the law” and by challenging the measure of damages in their second amended motion for JNOV and their amended motion for new trial.” Inland W. Dall. Lincoln, Ltd. P’ship v. Nguyen, No. 05-17-00151-CV, 2018 Tex. App. LEXIS 10354, at *22-23 (App.—Dallas Dec. 14, 2018)

Valuations: “Ronald argues that he had no obligation to provide the trial court with evidentiary support to permit the trial court to determine a value of the community’s assets and to divide the community estate; he argues that he could rest on his valuation of “zero value” because of the lack of a market value. We disagree. Both parties had an obligation to provide the factfinder with evidence of the companies’ values. Murff, 615 S.W.2d at 698-99; Aduli, 368 S.W.3d at 820. Ronald, who handled the entities’ daily operations, was particularly in a position to provide the trial court with valuation information. He did not. Yet we cannot agree that his failure is equivalent [*28] to what occurred in the cases on which Karen relies, i.e., failing to appear, file an inventory, or respond to valuation questions. Accordingly, we hold that Ronald has not waived his ability to challenge the valuations on appeal.” Mathis v. Mathis, No. 01-17-00449-CV, 2018 Tex. App. LEXIS 10432, at *27-28 (App.—Houston [1st Dist.] Dec. 18, 2018)

Visitation: “The Department contends that the mother did not preserve [*12] the issue of visitation for review. We disagree. Darrington testified at trial that the child’s therapist believed that the adoptive mother should be able to have regular visitation. Based on this testimony, the mother’s counsel argued that the trial court should allow the mother to have contact with the child. We therefore reject the Department’s waiver argument and turn to the merits.” In the Interest of C.L.J.S., No. 01-18-00512-CV, 2018 Tex. App. LEXIS 9753, at *11-12 (App.—Houston [1st Dist.] Nov. 29, 2018)

Voir dire: “To preserve error related to the trial court’s denial of such a right, the party must make a timely request that makes clear—by words or context—the grounds for the request and obtain a ruling on that request, whether express or implicit. In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011) (citing Tex. R. App. P. 33.1). Here, the topic was first addressed and ruled on as a ground in the State’s motion in limine, which preserved nothing for appellate review. However, immediately prior to voir dire, Appellant asked for clarification on questions for jury selection. The trial court stated, “Okay. So you can’t get into bestiality.” After the general voir dire questioning but before any challenges for cause were made, Appellant informed the trial court: ‘ And for the record, these were the questions on bestiality that we wanted to address with the venire panel. And it was simply the same questions along [*3] the lines: Is there anyone who would be uncomfortable discussing or listening to sexual acts with animals? And if so, will hearing such details affect your ability to consider this case objectively and follow the instructions of the Court in order to issue a fair and impartial decision?’ The trial court responded, “Okay,” and “All right. Thank you.” We cannot hold under these circumstances that Appellant failed to preserve this issue for review. Thus, we will address the merits of Appellant’s issue.” In re Porter, No. 11-18-00015-CV, 2018 Tex. App. LEXIS 10278, at *2-3 (App.—Eastland Dec. 13, 2018)

When you object to an instruction, on the same grounds you raise on appeal, which the trial court included in the charge, you will have preserved a complaint to that instruction:

Jury Charge: “Second, in response to the civil authorities, A.Z. argues that if a minor’s factual consent is relevant to compensatory damages, then Solis waived his challenge to the charge instruction because he did not request a separate instruction on A.Z.’s comparative fault or proportionate responsibility. This argument is fatally flawed. HN9 A minor cannot be at fault in her own statutory rape. Cf. In re B.W., 313 S.W.3d at 826 (holding that a thirteen-year-old girl cannot be charged with prostitution because children are the victims, rather than the perpetrators, of prostitution); Soliz v. State, 163 Tex. Crim. 508, 293 S.W.2d 662, 662 (Tex. Crim. App. 1956) (holding that the victim in a statutory rape is not an accomplice witness). Also, the waiver point is refuted by the record: Solis submitted a written objection that directly addressed this issue, and that objection [*20] was repeated during the charge conference.” Solis v. S.V.Z., No. 14-17-00162-CV, 2018 Tex. App. LEXIS 9458, at *19-20 (App.—Houston [14th Dist.] Nov. 20, 2018)

Your complaint must be timely:

Choice of Law: “And to the extent that appellants assert that they preserved their choice-of-law issue through their motion for judgment notwithstanding the verdict (“JNOV”), they did not. See DaimlerChrysler, 362 S.W.3d at 196-97 (post-trial motion raising choice-of-law issue untimely and did not preserve complaint). Accordingly, we hold that appellants have waived their choice-of-law complaint under Restatement (Second) of Conflict of Laws section 148(2).” Kubbernus v. ECAL Partners, Ltd., No. 01-16-00174-CV, 2018 Tex. App. LEXIS 10652, at *54 (App.—Houston [1st Dist.] Dec. 20, 2018)

Expert Report: “In response, Webster claims Dr. Rushing’s expert report adequately explained how Greenville’s delay in calling 911 breached the applicable standard of care and caused Robinson’s death “due to infarct.” Webster also responds that Greenville waived its right to object to Dr. Rushing’s expert report by issuing and responding to discovery. Webster’s argument Greenville waived its right to move to dismiss Webster’s claims by participating in discovery is without merit. HN6 “Attempting to learn more about the case through discovery does not demonstrate an intent to waive the right to dismiss[.]”” Greenville SNF, LLC v. Webster, No. 05-18-00038-CV, 2018 Tex. App. LEXIS 10760, at *14 (App.—Dallas Dec. 21, 2018)

Notice: “In issue six, Morgan complains that the trial court erred by permitting [*28] Dorrell to testify and provide evidence regarding attorney’s fees and sanctions, because Morgan did not receive forty-five days’ notice of a bench trial. In her cross-issue, Johnson-Todd contends that Morgan waived his complaint by failing to assert it before the hearing began on April 21, 2017. The record shows that Morgan did not object to a lack of notice during the April 21 hearing. The record further shows that the trial court recessed the April 21 hearing, and when the hearing resumed on April 28, 2017, Morgan then complained that he was entitled to forty-five days’ notice. The trial court overruled Morgan’s objection. Based on this record, we conclude that Morgan failed to preserve his complaint for our review. See Tex. R. App. P. 33.1.” Johnson-Todd v. Morgan, Nos. 09-17-00168-CV, 09-17-00194-CV, 2018 Tex. App. LEXIS 10617, at *27-28 (App.—Beaumont Dec. 20, 2018)

Visiting Judge: “As discussed above, the Collinses’ objection to the visiting judge was not timely, and the Collinses made no objection to the judge continuing to sit after she mistakenly signed an order granting the untimely objection. Cf. In re S.Q., No. 04-18-00119-CV, 2018 Tex. App. LEXIS 4688, 2018 WL 3129434, at *1 (Tex. App.—San Antonio June 27, 2018, pet. denied) (mem. op.) (“[A] party impliedly withdraws an objection by participating in a hearing or trial without advising the assigned judge that an objection has been filed and seeking a ruling.” (citing In re Carnera, No. 05-16-00055-CV, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2 (Tex. App.—Dallas Jan. 27, 2016, orig. proceeding) (mem. op.))). The Collinses have therefore not preserved anything for review, and we overrule their second issue.” Collins v. D.R. Horton-Texas Ltd., No. 14-17-00764-CV, 2018 Tex. App. LEXIS 10614, at *9 (App.—Houston [14th Dist.] Dec. 20, 2018)

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

Arbitration: “In its third issue, Vapro contends the trial court erred in deciding the issue of arbitrability because the incorporation of the rules of the American Arbitration Association into the arbitration clause delegated the issue of arbitrability to the arbitrator. In their brief, the Zinks first respond that Vapro waived this issue by not raising it in the trial court. In its reply brief, Vapro argues that it raised the issue in its motion to compel; however, Vapro does not provide a record citation in support of this assertion, and we could not locate where the issue was raised in the motion. See Tex. R. App. P. 38.1(i) (providing arguments in briefs must be supported by appropriate citations to the record). In addition, at the hearing, Vapro’s attorney informed the trial court “we’ve got just one issue based upon Plaintiff’s response” and “the only issue as I interpret it before the Court is whether the employment agreement scope touches the controversy before the Court.” Accordingly, we agree Vapro waived its second issue. See Tex. R. App. P. 33.1(a);” Vapro Supply, LLC v. Zink, No. 04-18-00549-CV, 2018 Tex. App. LEXIS 10200, at *5 (App.—San Antonio Dec. 12, 2018)

Evidence: “First, Mother did not preserve this issue for our review. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1)(A). During Odiachi’s testimony about what Mother and Ann specifically told John about Sam’s injuries, Mother did not object to Odiachi’s testimony as to what Mother had told John to say about Sam’s injuries, only as to what Ann had said. Also, Mother failed to object each time Odiachi testified to John’s statements. Second, John’s statements to Odiachi, a professional counselor, during his counseling sessions were pertinent to Odiachi’s treatment of John and were not excludable as hearsay.” In the Interest of J.H., No. 02-18-00249-CV, 2018 Tex. App. LEXIS 9552, at *14 (App.—Fort Worth Nov. 21, 2018)

WARNING: I’ve not run this to ground, but typically exclusive jurisdiction is an issue which can first be raised on appeal. If you intend to rely on this case, you should independently confirm the accuracy of the holding.  Exclusive jurisdiction: “Court 7 was the court of continuing, exclusive jurisdiction and had the authority granted by the Texas Constitution and the government code to render judgment on the child support arrearage and sanctions. In Court 7, J.C.C. claimed Court 4 was the court of continuing jurisdiction and should have heard the child support arrears issue, unlike his present argument that the Title IV-D court had exclusive jurisdiction. J.C.C.’s objection in the trial court does not comport with his issue on appeal. As a result, he did not preserve error. See Tex. R. App. P. 33.1(a)(1);” In the Interest of L.D.C., No. 13-17-00053-CV, 2018 Tex. App. LEXIS 10244, at *11 (App.—Corpus Christi Dec. 13, 2018)

You have to comply with the pertinent rules:

Continuance: “Mother did not file a written motion for continuance. Her oral request on the day of trial is insufficient to preserve error for our review. See id. at 118 (concluding trial court did not abuse its discretion in denying pro se litigant’s motion for continuance when record did not contain written, verified motion);” In the Interest of C.F., No. 14-18-00509-CV, 2018 Tex. App. LEXIS 9888, at *25 (App.—Houston [14th Dist.] Dec. 4, 2018)

You must get a ruling on your complaint:

Discovery: “Appellants requested production of certain documents relating to the 35,000 “rejected” echocardiograms—i.e., the tests that did not meet the MDL court’s criteria for pursuing an opt-out, individual claim against Wyeth. According to appellants, the Fleming Firm refused to produce this evidence, so appellants filed a motion to compel. A motion to compel is included in our record, but we have not located a corresponding order ruling on the request. Appellants assert that “the trial court ruled that it would enter such an order but only on the condition that the Harpst [*31] Plaintiffs pay the Fleming Defendants’ attorneys’ fees incurred in monitoring the Harpst Plaintiffs while they examined these documents,” but appellants have not cited us to an order in the record. Instead, appellants rely upon their counsel’s declaration, which stated that “[d]uring the oral hearing [on the motion to compel], the Court agreed to order production and/or inspection of the requested documents, but only on the condition that the Plaintiffs pay for the Defendants’ attorneys’ fees in making them available.” Appellants’ counsel also stated in the declaration that he objected to the court’s ruling but was overruled. Again, we have reviewed the record and see no such rulings included in either the clerk’s record or reporter’s record. Because the record does not include a ruling adverse to appellants, nothing is presented for our review.” Harpst v. Fleming, No. 14-17-00209-CV, 2018 Tex. App. LEXIS 10719, at *30-31 (App.—Houston [14th Dist.] Dec. 21, 2018)

Jury Charge: “The jury returned, and the court gave a limiting instruction regarding the hearsay contained in the records Self reviewed in forming his opinion. On appeal, Nutt contends that the trial court erred in failing to give the limiting instruction when he initially requested it. Nutt’s complaint was not preserved for our review. In order to preserve a complaint for our review, the action or omission which is alleged as error or abuse of discretion on behalf of the trial court must have been the basis of a timely request, objection, or motion that specified the action that the trial court was requested to take, or to forbear from taking, and an adverse ruling must have been obtained. Tex. R. App. P. 33.1(a); Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). Here, Nutt initially requested a limiting instruction be given to the jury “prior to Dr. Self going into [*6] detail,” but he failed to obtain the relief requested, receive an adverse ruling, or object to the court’s failure to rule. See Tex. R.App. P. 33.1(a). Therefore, Nutt failed to preserve this issue for our review.” In re Nutt, No. 06-18-00058-CV, 2018 Tex. App. LEXIS 10372, at *5-6 (App.—Texarkana Dec. 18, 2018)

All for now.  I hope this helps.

Yours, Steve Hayes (shayes@stevehayeslaw.com)

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, November 19, 2018

November 19, 2018

Dear All:

The topics included in this blog entry include:

Some complaints can be raised for the first time on appeal–like ineffective assistance of counsel in a parental right termination case

Attorney

A recent case brought to mind the split of authority on the issue of whether a complaint about the form of a temporary injunction order can first be raised on appeal. Austin and a few other courts say no–but the majority of courts say that this complaint can be first raised on appeal

Temporary Injunction Order

While this does not address how late in the process one may object to a failure to segregate attorneys fees and still preserve error, an objection is timely if made when evidence as to fees is offered

Attorneys fees

You have preserved a complaint about the immateriality of a jury’s answer if you first raise it in a motion to disregard findings and for judgment notwithstanding the verdict

Jury Verdict

You have to comply with other pertinent rules

Bill of Exception
Default Judgment
Factual Sufficiency
Jury Charge

Be careful to not abandon your complaint–e.g., after the granting of a partial summary judgment against you, do not omit from your subsequent amended petition the claim on which summary judgment was granted

Summary Judgment

You have to make the trial court aware of your complaint–set a hearing on your motion

Motions

Your complaint must be timely

Jury Trial

A recent case brought to mind the split of authority on the issue of whether a complaint about the form of a temporary injunction order can first be raised on appeal. Austin and a few other courts say no–but the majority of courts say that this complaint can be first raised on appeal:

Temporary Injunction Order: “In response, the Grahams contend in part that, as a threshold matter, DHJB has failed to preserve for appellate review any argument that the order fails to comply with the specificity requirements of rule 683. This Court has long recognized that a complaint that a temporary injunction fails to comply with rule 683’s specificity requirements is considered one of form that is waived unless it is adequately preserved before the trial court. Shorts, 549 S.W.3d at 880; see Texas Tech Univ. Health Scis. Ctr. v. Rao, 105 S.W.3d 763, 768 (Tex. App.-Amarillo 2003, pet. dism’d) (noting split of authority among courts of appeals on whether complaint of failure to comply with rule 683 is waived if not raised before trial court, but ultimately agreeing with this Court’s previous holding in Emerson v. Fires Out, Inc., 735 S.W.2d 492, 494 (Tex. App.-Austin 1987, no writ), that such complaints must be preserved). As this Court has previously explained, “it serves no good purpose to permit appellants to lie in wait and present this error in form for the first time on appeal.” Emerson, 735 S.W.2d at 494. To adequately [*8] preserve an error for review on appeal, rule 33.1 of the Texas Rules of Appellate Procedure requires the record to show (1) that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint; and (2) that the trial court expressly or implicitly ruled on the request, objection, or motion. See Tex. R. App. P. 33.1(a).

DHJB contends that it has adequately preserved error on its rule 683 complaints by raising the issue in its “Response to Plaintiffs’ Post-Hearing Brief in Support of their Application for Temporary Injunction,” filed shortly after the trial court signed the temporary-injunction order. In particular, DHJB points to that portion of the pleading stating, “The open-ended request for injunctive relief proffered by the Grahams calls for interpretations, inferences, and conclusions as to the affected parties and their respective duties that exceed the limits of the constitution and cannot be granted.” At the conclusion of the responsive pleading, DHJB “requests that the Court deny Plaintiff’s application for a temporary injunction.” We conclude that this pleading fails to preserve error on DHJB’s rule 683 complaints for several [*9] reasons.

First, although the argument relied on by DHJB in its responsive pleading generally asserts that the injunctive relief requested by the Grahams is vague and overbroad, we cannot conclude that the argument was sufficiently specific to make the trial court aware that, in DHJB’s view, the resulting temporary injunction failed to specify how the Grahams would suffer irreparable harm as required by rule 683. Second, HN7 although “magic words” are not required, we cannot conclude that the argument was presented in the form of a “request, objection, or motion” to modify or correct the already-issued temporary-injunction order such that the trial court would have understood that a ruling on the complaint was necessary. Cf. Sand Point Ranch, Ltd. v. Smith, 363 S.W.3d 268, 274 n.11 (Tex. App.-Corpus Christi 2012, no pet.) (noting that error was preserved despite fact that appellant did not use “magic words ‘object’ or ‘objection'”); Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996) (where context was clear from record, error was preserved despite failure to state “magic words,” “I object”). Finally, even if we were to construe DHJB’s pleading as requesting a ruling on its complaint to the form of the trial court’s temporary-injunction order, nothing in the record suggests that the trial court, in fact, ruled on the complaint, expressly or [*10] implicitly. In short, based on the record before us, including the Grahams’ post-hearing response, we cannot conclude that DHJB brought its complaints about the form of the temporary injunction to the trial court’s attention and obtained a ruling. Thus, DHJB has failed to preserve error on these appellate issues. See Tex. R. App. P. 33.1(a)(1), (2)(A).” DHJB Dev., LLC v. Graham, No. 03-18-00343-CV, 2018 Tex. App. LEXIS 9295, at *7 (App.—Austin Nov. 15, 2018)

While this does not address how late in the process one may object to a failure to segregate attorneys fees and still preserve error, an objection is timely if made when evidence as to fees is offered:

Attorneys fees: “The Corey Appellants assert that the trial court erred by awarding the Rankin Appellees $46,957 in attorney’s fees because the appellees did not properly segregate between recoverable and unrecoverable fees. N. 2 N. 2 The Corey Appellants preserved error on this point by objecting when evidence of attorney’s fees was presented and considered by the trial court. Tex. R. App. P. 33.1(a)(1);” Corey v. Rankin, No. 14-17-00752-CV, 2018 Tex. App. LEXIS 9224, at *24 (App.—Houston [14th Dist.] Nov. 13, 2018)

You have preserved a complaint about the immateriality of a jury’s answer if you first raise it in a motion to disregard findings and for judgment notwithstanding the verdict:

Jury Verdict: “Broussard next contends that Orr has waived any complaint about the materiality of the jury’s negative answer to the question of whether Broussard breached his co-guarantor obligations to Orr. According to Broussard, Orr waived this complaint because Orr proposed, and did not object to, this charge question. A complaint that a jury’s answer is immaterial is not a jury-charge [*9] complaint which must be raised before the jury deliberates. See Musallam v. Ali, No. 17-0762, S.W.3d , 2018 Tex. LEXIS 1096, 2018 WL 5304678, at *3 (Tex. Oct. 26, 2018). A party instead can preserve a materiality complaint by raising the issue in a motion for judgment notwithstanding the verdict, a motion to disregard the finding, or a motion for new trial. See BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402 (Tex. 2017). Because Orr argued in his combined motion to disregard findings and for judgment notwithstanding the verdict that certain jury findings were immaterial, those arguments have been preserved for review.” Orr v. Broussard, No. 14-17-00836-CV, 2018 Tex. App. LEXIS 9325, at *8-9 (App.—Houston [14th Dist.] Nov. 15, 2018)

You have to comply with other pertinent rules:

Bill of Exception: “GayeLynne timely filed a formal bill of exception containing largely the same evidence she presented in her offers of proof at trial and the same exhibits the trial court admitted at trial “for record purposes only.” See Tex. R. App. P. 33.2(e)(1). Tina objected to the bill. When, as here, the parties do not agree on a bill’s contents, the trial judge, after notice and hearing, must (1) find the bill is correct, sign it, and file it with the trial-court clerk; (2) suggest corrections to the complaining party, and if the complaining party agrees to the corrections, sign and file the bill with the trial-court clerk; or (3) if after making suggested corrections, the complaining party will not agree to the corrections, return the bill to the complaining party with the judge’s written refusal on it. Tex. R. App. P. 33.2(c). Here, the trial judge did not hear the bill, sign the bill, or suggest corrections. Thus, any errors complained of in GayeLynne’s bill of exception that were not presented in her offers of proof and exhibits admitted for record purposes only are not preserved for our review.” Estate of Luce, No. 02-17-00097-CV, 2018 Tex. App. LEXIS 9341, at *26 n.11 (App.—Fort Worth Nov. 15, 2018)

Default Judgment: “By his first and fourth issues, Guillen challenges the default judgment on its merits. However, Guillen failed to preserve error because he did not raise these issues in a motion for new trial to set aside the default judgment. HN9 Rule 324 provides that a point in a motion for new trial is a prerequisite to a complaint on appeal on which evidence must be heard. See Tex. R. Civ. P. 324(b)(1). As examples of such complaints, rule 324 identifies complaints involving the “failure to set aside a judgment by default.” Id.; McAllen Med. Ctr. v. Rivera, 89 S.W.3d 90, 94 (Tex. App.—Corpus Christi 2002, no pet.). Guillen makes factual assertions in his brief which “underscore the need for an evidentiary hearing.” See Hendricks v. Barker, 523 S.W.3d 152, 157 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Guillen contends that for several years, local authorities have been taxing him on two properties that do not belong to him, one of which is a local cemetery. Guillen contends, without any record citation, that each year the county’s “clerks would assure Appellants that just pay that one year and Appellants’ names would be removed from the tax rolls.” Guillen alleges that the promised removal never occurred, and, instead, his taxes increased. These sorts of factual conflicts must be resolved in the trial court before we, the appellate court, can address them. See [*13] id. Because Guillen never called for an evidentiary hearing or presented these issues in a motion for new trial, he has preserved nothing for appellate review.” Guillen v. Cameron Cty. & La Feria Indep. Sch. Dist., No. 13-16-00682-CV, 2018 Tex. App. LEXIS 9307, at *12-13 (App.—Corpus Christi Nov. 15, 2018)

Factual Sufficiency: “A complaint that the evidence is factually insufficient to support a jury answer, or that the answer is against the overwhelming weight of the evidence, must have been raised in a motion for new trial. Tex. R. Civ. P. 324(b)(2)-(3); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Neither Mother nor Father filed a motion for new trial. Because a motion for new trial is a prerequisite to a factual sufficiency challenge in a jury trial, Mother and Father have forfeited their complaints that the evidence is factually insufficient to support the best-interest findings against them. See Tex. R. Civ. P. 324(b)(2)-(3).” In the Interest of J.S., No. 02-18-00164-CV, 2018 Tex. App. LEXIS 9186, at *5 (App.—Fort Worth Nov. 8, 2018)

Jury Charge: “As for Blevins’s final issue concerning the trial court’s failure to give his requested jury instruction, that issue was not preserved for appeal. Blevins apparently asked for a “part two” to the instruction that was actually given. The instruction given was: “State Farm issued a policy to William Blevins providing coverage for UM/UIM damages and that such policy was in effect on October 2, 2011, the date of the collision at issue.” Although the record does not contain the exact language that Blevins sought to include as part two, from the parties’ discussions on the record of proposed stipulations at the trial’s beginning, we understand that he wanted a second jury instruction to this effect: that “the parties further stipulate that William Blevins’ UM/UIM policy provided coverage up to the limit of his policy for damages, if any, that were caused in this collision [*41] and for which there was no coverage, or insufficient coverage, on the liability policy or policies of the at-fault driver or drivers.” That language was never submitted in written form either as a suggested stipulation or as a requested jury instruction. Blevins failed to preserve error, if any, in the omission of an instruction along the lines of the above language. His proposed jury questions and instructions that appear in the clerk’s record did not contain any instruction at all about UIM coverage, nor does the record contain the proposed written charge that the parties discussed at the close of all evidence and that ostensibly contained a secondary instruction similar to the above proposed stipulation.. . . . Rule 278 provides that “[f]ailure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.” Tex. R. Civ. P. 278;” Blevins v. State Farm Mut. Auto. Ins. Co., No. 02-17-00276-CV, 2018 Tex. App. LEXIS 9344, at *40-42 (App.—Fort Worth Nov. 15, 2018)

Be careful to not abandon your complaint–e.g., after the granting of a partial summary judgment against you, do not omit from your subsequent amended petition the claim on which summary judgment was granted:

Summary Judgment: “Filing an amended petition [after the granting of an interlocutory partial summary judgment] that does not include a cause of action effectively nonsuits or voluntarily dismisses the omitted claim as of the time the pleading is filed, unless circumstances indicate otherwise, such as when the amended petition contains statements demonstrating an intent to preserve the omitted claim. FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632-33 (Tex. 2008); Spellmann v. Love, 534 S.W.3d 685, 690 (Tex. App.—Corpus Christi 2017, pet. denied). The same principle holds true for an amended petition that omits a previously named defendant. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); Spellmann, 534 S.W.3d at 690. For appellate purposes, abandoning a cause of action or a defendant in an amended pleading waives any error by the trial court regarding the abandoned cause of action or defendant.” Lopez v. Crest Gateway, LP, No. 02-17-00429-CV, 2018 Tex. App. LEXIS 9182, at *4 (App.—Fort Worth Nov. 8, 2018)

You have to make the trial court aware of your complaint–set a hearing on your motion:

Motions: “In conclusion, the record shows that Ayala-Gutierrez never asked the trial court to set hearings on his motions [for a bench warrant]. Thus, he failed to preserve [*9] his complaints that the trial court never ruled on motions for our review. See Tex. R. App. P. 33.” Ayala-Gutierrez v. Strickland, No. 09-17-00119-CV, 2018 Tex. App. LEXIS 9333, at *8-9 (App.—Beaumont Nov. 15, 2018)

Your complaint must be timely:

Jury Trial: “A party must object to proceeding without a jury when the case is called to trial or the argument is waived. In re W.G.O. III, No. 02-12-00059-CV, 2013 Tex. App. LEXIS 189, 2013 WL 105661, at *2 (Tex. App.-Fort Worth Jan. 10, 2013, pet. denied) (mem. op.). The record shows the parties failed to timely object to the trial court’s denial of Father’s perfected right to a jury trial. The parties were initially called at 9:45 a.m. Mother’s and Father’s counsel were both present on their behalves and counsel for all parties announced “ready.” The trial court instructed them to return at 1:00 p.m. When they returned, the trial court acknowledged the case had been set for jury trial and that Mother and Father were not present. After waiting approximately fifteen minutes, the court announced it would proceed to trial before the court. Again, counsel for all parties announced they were ready and proceeded to trial without objection. It was not until after [*13] the State passed its first witness that Father’s counsel inquired about the jury and indicated that he did not know how Father wished to proceed. Shortly thereafter, Mother’s counsel stated, “Judge, if I may, I just also want to voice my objection to preserve error for my client with respect to the jury trial demand.” This attempt to preserve error was untimely because the bench trial had already commenced. Therefore, we conclude Mother and Father waived any right to complain on appeal about the trial judge’s alleged error.” In the Interest of A.Ja.T., No. 05-18-00705-CV, 2018 Tex. App. LEXIS 9358, at *12-13 (App.—Dallas Nov. 15, 2018)

As usual, there were many cases in which courts held that parties failed to preserve their complaint by not raising it at all in the trial court.

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

Yours,

Steve Hayes (shayes@stevehayeslaw.com; www.stevehayeslaw.com)