Error Preservation in Texas Civil Cases, Aug. 7, 2019

August 7, 2019

Dear All:

Here are some of the error preservation decisions from last week.

Table of Contents

One case held that you can preserve a complaint about receiving insufficient notice of a hearing by raising it in a motion to reinstate

For a bench trial, you can first raise sufficiency complaints on appeal

You have to get a ruling from the trial court

Evidence

You have to make a record

Discovery

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

Evidence

The Blurbs

One case held that you can preserve a complaint about receiving insufficient notice of a hearing by raising it in a motion to reinstate:

Notice: “Walsh, citing Texas Rule of Appellate Procedure 33.1(a)(1), asserts White failed to object on the record that she received insufficient notice and, consequently, waived her issue. We disagree. Rule 33.1(a)(1) requires, as a prerequisite to presenting a complaint for appellate review, that the record must show the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). Here, White made a complaint regarding insufficient notice through her motion for reinstatement, which specified as a ground for reinstatement that White received insufficient notice.” White v. Walsh, No. 04-18-00609-CV, 2019 Tex. App. LEXIS 6529, at *4 n.4 (Tex. App.—San Antonio July 31, 2019)

For a bench trial, you can first raise sufficiency complaints on appeal:

Legal and Factual Sufficiency: “Father primarily argues that Mother did not sufficiently prove the reasonableness of her attorney’s fees. Father may raise this insufficiency-of-the-evidence argument for the first time on appeal. See Tex. R. Civ. P. 324(a), (b); Tex. R. App. P. 33.1(d);” In the Interest of K.A.M.S., No. 14-18-00015-CV, 2019 Tex. App. LEXIS 6717, at *25-26 (Tex. App.—Houston [14th Dist.] Aug. 6, 2019)

Legal and Factual Sufficiency: “We begin by addressing the Hancheys’ argument that Cantu did not preserve her legal sufficiency complaint because she failed to request additional findings of fact and conclusions of law. Texas Rule of Appellate Procedure 33 provides that “[i]n a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d). Cantu’s legal sufficiency challenge is, therefore, properly preserved. See id.” Cantu v. Hanchey, No. 04-18-00697-CV, 2019 Tex. App. LEXIS 6539, at *4 (Tex. App.—San Antonio July 31, 2019)

Legal and Factual Sufficiency: “In addition, Father argues Mother did not “offer any evidence to support her claim for an attorney fee award for her Counter-Petition to Modify the Parent Child relationship” and “offered no evidence to prove . . . that the fees sought were reasonable and necessary for the prosecution [*13] of the suit.” HN2 Father may raise this insufficiency-of-the-evidence argument for the first time on appeal. See Tex. R. Civ. P. 324(a), (b); Tex. R. App. P. 33.1(d)” In the Interest of D.Z., No. 14-17-00938-CV, 2019 Tex. App. LEXIS 6466, at *12-13 (Tex. App.—Houston [14th Dist.] July 30, 2019)

You have to get a ruling from the trial court:

Evidence: “During re-direct examination of Attalla, Attalla’s counsel attempted to rebut Hulsey’s assertion that he lacked sufficient coverage:

[Attalla’s counsel]: Do you understand that he has unlimited coverage now because they had the opportunity to settle—

[Hulsey’s counsel]: Objection, Your Honor. They’re—this is—

[Trial Court]: Okay. Never mind. We’ll leave it there. Any other questions about the . . . .

[Attalla’s counsel]: Oh, yes—

[Trial Court]: —unrelated to insurance?

[Attalla’s counsel]: The amount of insurance is not true. It’s unlimited.

[Trial Court]: I understand your argument.

[Attalla’s counsel]: Thank you.

Although Hulsey objected, he did not obtain a ruling from the trial court. See Tex. R. App. P. 33.1(a) (providing that preservation of error requires objection and ruling).” Hulsey v. Attalla, No. 01-18-00180-CV, 2019 Tex. App. LEXIS 6654, at *47 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019)

You have to make a record:

Discovery: “At the December 2, 2016 hearing, the Fishers offered evidence in support of their Motion for Docket Control Order in which they requested new discovery deadlines. As stated, the appellate record does not include the reporter’s record from that hearing. When the record is incomplete, the court of appeals must presume the missing reporter’s record supports the trial judge’s decision. . . . At the March 24 hearing, appellants stated their position that the case should be dismissed unless the Fishers had evidence to show otherwise. The Fishers proposed to offer their evidence again. The trial judge did not require them to, stating he had sufficient information to make a decision. Appellants did not object to the fact that the court did not have the Fishers put on their evidence again in appellants’ presence or otherwise make such a complaint known to the judge. See Tex. R. App. P. 33.1(a).” PS Royal Servs. Grp., LP v. Fisher, No. 05-17-01139-CV, 2019 Tex. App. LEXIS 6744, at *6-7 (Tex. App.—Dallas Aug. 5, 2019)

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

Evidence: “Guillermo’s objection to the photos at trial did not challenge them on the basis that they were not originals. He instead objected to them on the basis that they lacked a date-time stamp. Thus, Guillermo did not preserve his best-evidence argument for review. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a);” Puente v. Puente, No. 01-18-00583-CV, 2019 Tex. App. LEXIS 6494, at *11 (Tex. App.—Houston [1st Dist.] July 30, 2019)

There were several cases in which courts held that the complaining party waived a complaint by failing to raise the complaint in the trial court.

All for now.  I hope this helps.

Yours,

Steve Hayes

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

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Error Preservation in Texas Civil Cases, 8/2/2019

August 2, 2019

Dear All:

I apologize for the long hiatus in publishing this. I got busy with work and traveling to speak, and got way behind. I’m now pretty much bushed from gathering the last several weeks worth of error preservation decisions, so the compilation below is not edited as well as I normally do.

Table of Contents

Cases you may want to read in terms of a party preserving a complaint about failure to receive appropriate notice of a trial setting

Your complaint must be sufficiently specific to make the trial court aware of it–with examples which did and didn’t, from the same case

Evidence
Evidence

You must bring your complaint to the trial court’s attention

Attorneys’ Fees
Continuance
Default Judgment

You have to get a ruling on your complaint

Attorney ad Litem
Motions

Your complaint on appeal must comport with the complaint you made in the trial court

Continuance

You have to comply with the pertinent rules

Affidavits
Evidence
Factual Sufficiency
Findings and Conclusions
Findings and Conclusions
Limitations
Necessary Party

The Blurbs

Cases you may want to read in terms of a party preserving a complaint about failure to receive appropriate notice of a trial setting:

Notice: “In this case, Taplin did appear at the trial. However, he never stated that he was ready to proceed. On the contrary, [*15] he repeatedly, both orally and in writing, asked for a continuance. Based on the record before us, we hold that error was preserved because Taplin, in addition to requesting a continuance, never “voluntarily, knowingly, and intelligently” waived proper notice under Rule 245. In re K.M.L., 443 S.W.3d at 120. Therefore, the trial court abused its discretion in denying the motion for continuance.” $2,424.21 in United States Currency v. State, No. 02-18-00303-CV, 2019 Tex. App. LEXIS 6188, at *14-15 (Tex. App.—Fort Worth July 18, 2019)

Notice: “Generally, a complaint for appellate review must be preserved by specific objection or motion in the trial court to allow the trial court an opportunity to correct the error. See Tex. R. App. P. 33.1. However, a party who complains of inadequate notice of a hearing and does not appear at the hearing may raise the complaint for the first time following the hearing. In re B.T.G., No. 05-17-00521-CV, 2017 Tex. App. LEXIS 4911, 2017 WL 2334243 at *1 (Tex. App.-Dallas 2017, no pet.) (mem. op.).

Discussion
Appellants argue they did not receive adequate notice of the hearing. A review of the record reveals appellants are correct. The court reporter filed her contest on June 5, 2019. The same day, she mailed a copy of the contest to appellants [*3] by certified mail along with a notice of hearing, which set the contest for hearing on June 11, 2019. Thus, appellants were provided with at most six days’ notice of the hearing. The ten day notice period is mandatory and appellants did not receive sufficient notice. Tex. R. Civ. P. 145(f)(5) (“declarant must be given ten days’ notice of the hearing”). Accordingly, we conclude the trial court abused its discretion in granting the court reporter’s motion challenging appellants’ affidavits of indigence.” Townley v. Lanier, No. 14-19-00447-CV, 2019 Tex. App. LEXIS 5691, at *2-3 (Tex. App.-Houston [14th Dist.] July 9, 2019)

Your complaint must be sufficiently specific to make the trial court aware of it–with examples which did and didn’t, from the same case:

Evidence: “X.D. argues that the photo array was impermissibly suggestive because (1) it was administered by a school official instead of by law enforcement personnel, and (2) two of the seven photos in the array were of other “possible suspects.” We first address the State’s argument that X.D. forfeited this issue because it does not comport with his counsel’s trial objection. To preserve error for appellate review, the Texas Rules of Appellate Procedure require that the record show that the objection “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A). If the issue on appeal does not comport with the objection made at trial, the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)….X.D.’s counsel objected [to the photo array] as follows: ‘I’m going to object, Your Honor. They’re improper photo lineups. They weren’t done correctly. They’re not supposed to have seven people. You’re not supposed to have multiple people in the same lineup. So I’m going to object to anything as far as the photo lineup goes.’ …Nothing in X.D.’s counsel’s trial objection put the court or the State on notice of his complaint that the photo array evidence was administered by a school official instead of law enforcement. We therefore hold that X.D. forfeited this argument for appellate review.” In re X.D., No. 01-18-00590-CV, 2019 Tex. App. LEXIS 6399, at *20-22 (Tex. App.—Houston [1st Dist.] July 25, 2019)

Evidence: “But X.D. did not forfeit his argument that the inclusion of photos of J.M. and A.G. rendered the photo array impermissibly suggestive. Here, given Officer Provencio’s testimony just before the State offered the photo array evidence, it is clear that “[y]ou’re not supposed to have multiple people in the same lineup” was an objection that the inclusion of J.M. and A.G. in the photo array made it impermissibly suggestive. .” In re X.D., No. 01-18-00590-CV, 2019 Tex. App. LEXIS 6399, at *20-22 (Tex. App.—Houston [1st Dist.] July 25, 2019)

You must bring your complaint to the trial court’s attention:

Attorneys’ Fees: “In her fifth issue, Purvis contends that the trial court erred when it failed to compel payment of attorney’s fees previously awarded to her pursuant to Texas Rule of Civil Procedure 91a. We have not located where in the record Purvis alerted the trial court to its failure to rule on her motion to compel payment of the fees awarded in the prior fee order. Nor did Purvis request that the trial court offset, or object to the trial court’s failure to account for, such award in its final judgment. Purvis did not preserve her fifth issue. See Tex. R. App. P. 33.1(a).” Watson v. Purvis, No. 14-18-00132-CV, 2019 Tex. App. LEXIS 5692, at *21 (Tex. App.-Houston [14th Dist.] July 9, 2019)

Continuance: “As a prerequisite to complaining on appeal about the denial of a motion for continuance, the record must show that the motion was brought to the trial court’s attention and that (1) the trial court denied the motion or (2) the trial court refused to rule on the motion and the complaining party objected to the refusal. Bryant v. Jeter, 341 S.W.3d 447, 450-51 (Tex. App.-Dallas 2011, no pet.) (plaintiff filed motion for continuance three days before hearing on motion for summary judgment and filed response on day of hearing; failure to obtain ruling on motion for continuance failed to preserve error); see Tex. R. App. P. 33.1; 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.”). In this case, the record does not show that Hartsfield’s motion for continuance was brought to the trial court’s attention. Likewise, the record does not show that the trial court either denied the motion or refused to rule on the motion. And to the extent that the trial court refused to rule [*5] on the motion, the record does not show that Hartsfield objected to that refusal. As a result, we conclude that this issue has not been preserved for appellate review.” Hartsfield v. Bank of Am., No. 05-17-01354-CV, 2019 Tex. App. LEXIS 5716, at *4-5 (Tex. App.-Dallas July 9, 2019)

Default Judgment: “In her fourth issue, Roux complains that the trial court should have entered a default judgment in her favor as to her application for attorney’s fees because Ford failed to file an answer in response to her application. We disagree. Roux did not move for entry of judgment on her application for attorney’s fees, nor did she file a mandamus in this Court complaining about the trial court’s failure to enter a default judgment. See In re Mesa Petroleum Partners, LP, 538 S.W.3d 153, 157 (Tex. App.—El Paso 2017, orig. proceeding) (“Consequently, mandamus relief is available if a trial court has failed to enter judgment within a reasonable time.”). HN3 The failure to move for judgment or call the [*9] motion for judgment to the attention of the trial court waives the issue. See Tex-Wash Enters., Inc. v. Robna, Inc., 488 S.W.2d 504, 505 (Tex. Civ. App.—Waco 1972, writ ref’d n.r.e.) (“The record fails to show that appellants’ motion for judgment was ever called to the attention of the trial court or acted upon by it. In this state of the record, nothing relating to the motion is presented for review.”). We therefore conclude that Roux waived this complaint by failing to move for default judgment on her application for attorney’s fees. We overrule Roux’s fourth issue.” Estate of Pharris, No. 10-17-00260-CV, 2019 Tex. App. LEXIS 5623, at *8-9 (Tex. App.—Waco July 3, 2019)

You have to get a ruling on your complaint:

Attorney ad Litem: “Chico’s third and final issue challenges the trial court’s denial of Chico’s motion for the appointment of an ad litem attorney for Mary. But we need not reach this issue either. Because Chico directs [*11] us to no apparent final adverse ruling or refusal to rule in this record, the complaint is not preserved. See Tex. R. App. P. 33.1(a)(2).” Chico Auto Parts & Serv. v. Maxey, No. 02-18-00352-CV, 2019 Tex. App. LEXIS 5609, at *10-11 (Tex. App.—Fort Worth July 3, 2019)

Motions: “To the extent that Florence challenged other interlocutory rulings of the trial court, such as its refusal [*6] to rule on certain motions, those appellate issues are waived. See Tex. R. App. P. 33.1 (appellant must show that trial court ruled or refused to rule on a motion); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (pro se litigants are held to the same standards as licensed attorneys); see also Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to the authorities and to the record.”).” J.M.G., No. 01-17-00690-CV, 2019 Tex. App. LEXIS 5918, at *5-6 (Tex. App.—Houston [1st Dist.] July 11, 2019)

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

Continuance: “In her first issue, Mendez argues the trial court abused its discretion by denying her motion for continuance based on Rule 601 of the Texas Rules of Evidence. In her motion for continuance, Mendez did not cite to Rule 601 or claim she was incompetent to testify. Instead, Mendez “move[d] [*6] that the trial on the merits be continued in order to allow her a full recovery.” Mendez argued that “having a trial to finalize the pending divorce is and will be detrimental to her, her case[,] and not in the best interest of the child.” As a prerequisite to presenting a complaint for appellate review, the record must show that the appellant complained to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1). Additionally, an appellant’s complaint on appeal must comport with the complaint she made in the trial court. Texas Farmers Ins. Co. v. Clack, No. 04-17-00348-CV, 2018 Tex. App. LEXIS 3068, 2018 WL 2024664, at *4 (Tex. App.—San Antonio May 2, 2018, pet. denied). Because the complaint Mendez presents on appeal differs from the complaint she made in her motion for continuance, she has not preserved this issue for review on appeal. See id.; Tex. R. App. P. 33.1(a)(1). Mendez further argues in this section of her brief that the trial court abused its discretion by denying her motion for new trial. However, Mendez’s motion for new trial did not present a complaint about Rule 601(a)(1) or her competence to testify. Therefore, Mendez’s complaint about [*7] the denial of the motion for new trial is not preserved for our review. See Tex. R. App. P. 33.1(a)(1).” Mendez v. Delgado, No. 04-18-00454-CV, 2019 Tex. App. LEXIS 6053, at *5-7 (Tex. App.—San Antonio July 17, 2019)

You have to comply with the pertinent rules:

Affidavits: “Dees argues that the trial court should have given her the opportunity to amend her summary judgment affidavits in response to form objections. See Tex. R. Civ. P. 166a(f). However,”[w]hen a summary judgment movant objects to summary judgment evidence proffered by the nonmovant, the burden lies upon the nonmovant to request relief under rule 166a(f), including a continuance or the opportunity to cure any formal defects in the nonmovant’s summary judgment evidence.” Coleman v. Woolf, 129 S.W.3d 744, 750 (Tex. App.—Fort Worth 2004, no pet.). “Generally, a motion for continuance is the proper procedure to obtain this ‘opportunity.'” Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied) (citing Webster v. Allstate Ins. Co., 833 S.W.2d 747, 750 (Tex. App.—Houston [1st Dist.] 1992, no writ)). Here, after the Homeowners filed their objections, Dees had the opportunity to seek leave to amend or supplement her affidavits or, if necessary, to seek a continuance of the hearing. See Tex. R. Civ. P. 166a(f); Eckmann v. Des Rosiers, 940 S.W.2d 394, 400 (Tex. App.—Austin 1997, no writ). Dees failed to take either action before the trial court’s judgment, instead only moving for clarification after the final judgment and more than three months after the Homeowners’ objections, thereby [*9] waiving this issue for appeal. See Tex. R. App. P. 33.1.” Dees v. Thomas, No. 03-18-00372-CV, 2019 Tex. App. LEXIS 5560, at *8-9 (Tex. App.—Austin July 3, 2019)

Affirmative Defense (Limitations): “However, the record reflects that CitiFinancial never submitted issues to the jury or obtained a ruling in the trial court regarding when Hollenberg’s claims against CitiFinancial accrued. “Limitations is an affirmative defense and cannot be raised for the first time on appeal.” Naficy v. Baker, 642 S.W.2d 282, 284 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.); see Tex. R. App. P. 33.1(a).” Cfna Receivables Tx v. Hollenberg, No. 09-18-00260-CV, 2019 Tex. App. LEXIS 5910, at *14 (Tex. App.—Beaumont July 11, 2019)

Evidence: “There is no reporter’s record of the evidence presented in this case, and Sparkman did not file a formal bill of exception. See Tex. R. App. P. 33.1(c). Without a record of the evidence, we know little about the underlying basis for the court’s findings, and we are unable to determine whether the [*4] court abused its discretion in modifying the order for medical and child support. See Rogers, 2016 WL 3162299, at *5; D.D.A., 2006 WL 1547869, at *3. Because we must presume that the evidence presented at the hearing was sufficient to support the order, we hold that Sparkman did not meet his burden to show that the trial court abused its discretion.” Sparkman v. Ag of Tex., No. 01-18-00503-CV, 2019 Tex. App. LEXIS 5917, at *3-4 (Tex. App.—Houston [1st Dist.] July 11, 2019)

Factual Sufficiency: “In his second issue, De Leon challenges the factual sufficiency of the evidence to support the verdict and he argues that the findings on the three charge questions are against the great weight and preponderance of the evidence.  A “great weight” challenge to a jury finding presents an issue of factual sufficiency. Kratz v. Exxon Corp., 890 S.W.2d 899, 904 (Tex. App.—El Paso 1994, no writ). To preserve a complaint of factual insufficiency of the evidence to support a jury finding, a complaint that a finding is against the overwhelming weight of the evidence, or that a finding of damages was inadequate, a party must raise the issue in a timely filed motion for new trial. Tex. R. Civ. P. 324(b)(2)-(4) (stating appellant cannot challenge factual sufficiency [*8] of evidence without first raising point in motion for new trial); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991); Cannon v. Castillo, No. 11-12-00256-CV, 2014 Tex. App. LEXIS 8656, at *5 (Tex. App.—Eastland Aug. 7, 2014, no pet.) (mem. op.). The record in this case does not indicate that De Leon presented his factual sufficiency challenge in a motion for new trial. Although De Leon filed a motion for new trial, the sole complaint raised in that motion was that Hernandez failed to plead the negligence of De Leon as an affirmative defense. Because De Leon did not raise a factual sufficiency complaint in his motion for new trial, he has failed to preserve the issue for our review.” De Leon v. Hernandez, No. 07-18-00138-CV, 2019 Tex. App. LEXIS 5453, at *7-8 (Tex. App.—Amarillo June 27, 2019)

Findings and Conclusions: “By its first issue, AJS contends that the trial court erred by failing to list it as a party in its findings of fact and conclusions of law. However, HN1 a trial court need not make findings of fact on undisputed matters, and here, AJS did not dispute that it was involved in this cause. See Limbaugh v. Limbaugh, 71 S.W.3d 1, 5 (Tex. App.—Waco 2002, no pet.). Moreover, AJS did not request additional findings [*3] of fact; thus, any complaint to those findings is waived.” Air Jireh Serv. Corp. v. Weaver & Jacobs Constructors, Inc., No. 13-15-00180-CV, 2019 Tex. App. LEXIS 5797, at *2-3 (Tex. App.—Corpus Christi July 11, 2019)

Findings and Conclusions: “In its findings, the trial court recited that during their marriage, Ngwu and Toni acquired “[c]ash in financial accounts of minimal value, minimally valued retirement accounts, 2011 Chevrolet Suburban, 2013 Chevrolet Malibu, 2017 Dodge Caravan, 2017 Nissan Sentra, and minimally valued household items and personal belongings.” The trial court found Ngwu and Toni’s community estate was encumbered by the following: “[a]uto loan payable to SSFCU on Dodge Caravan, lien owed to LastPointe Automotive on 2011 Chevrolet Suburban, auto loan payable to Santander Consumer on 2017 Nissan [*7] Sentra, and other minimal debts of the parties.” The trial court specifically recited that it “took into consideration the following factors in making a determination of a just and right division: needs of the parties, needs of the children of the parties, periods of possession of the parties, parties’ contributions in the marriage.” Ngwu did not request additional or amended findings or conclusions. See, e.g., In re Estate of Hargrove, No. 04-18-00355-CV, 2019 Tex. App. LEXIS 1703, 2019 WL 1049293, at * 2 (Tex. App.—San Antonio Mar. 6, 2019, pet. filed.) (mem. op.); see also Tex. R. Civ. P. 298. For that reason, his complaint that section 6.711 of the Texas Family Code required the trial court to assign a monetary value to these items is not properly preserved. See Hargrove, 2019 Tex. App. LEXIS 1703, 2019 WL 1049293, at *2 (holding party’s complaint about adequacy of findings was waived when party never requested additional or amended findings); Tex. R. App. P. 33.1(a).” Ngwu v. Toni, No. 04-18-00762-CV, 2019 Tex. App. LEXIS 6281, at *6-7 (Tex. App.—San Antonio July 24, 2019)

Limitations: “To the extent that Ace asserts on appeal that Rush “wholly failed to plead or prove that he timely filed suit” and “limitations should . . . result in the dismissal of his case,” we note that statute of limitations is an affirmative defense which must be proven at trial or through a motion for summary judgment. See Tex. R. Civ. P. 94; In re D.K.M., 242 S.W.3d 863, 865 (Tex. App.—Austin 2007, no pet.); In re K.B.S., 172 S.W.3d 152, 153 (Tex. App.—Beaumont 2005, pet. denied); see also Chicas, 522 S.W.3d at 75 n.4 (“As an affirmative defense, th[e] limitations issue is properly left for resolution by way of a motion for summary judgment . . . .”). An affirmative defense that is not pleaded or proved and on which findings are not obtained is waived. See Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“A defendant relying on an affirmative defense [*16] must plead, prove, and secure findings to sustain the defense.”); see also Epps v. Fowler, 351 S.W.3d 862, 869 n.8 (Tex. 2011). Here, Ace only asserted its statute-of-limitations affirmative defense in its plea to the jurisdiction. See In re D.K.M., 242 S.W.3d at 865 (“[A]n affirmative defense such as the running of limitations should be raised through a motion for summary judgment, not through . . . a plea to the jurisdiction.”). Because Ace failed to plead, prove, and obtain findings on his statute-of-limitations affirmative defense, we hold that it has waived any complaint related to Rush’s purported failure to comply with the statute of limitations found in Texas Labor Code section 410.252(a).” Rush v. Ace Am. Ins. Co., No. 01-18-00402-CV, 2019 Tex. App. LEXIS 5709, at *15-16 (Tex. App.—Houston [1st Dist.] July 9, 2019)

Necessary Party: “Linda next contends that the trial court erred in granting Nationstar summary judgment because Nationstar failed to pursue claims against Ziad Allan, whom Linda characterizes as a necessary party. We conclude that this complaint has been waived. A party must object to the failure to join a necessary party by a pleading verified by affidavit. See Tex. R. Civ. P. 93(4) (“unless the truth of such matters appear of record,” a pleading setting up a “defect of parties” “shall be verified by affidavit”); CHCA E. Hous., L.P. v. Henderson, 99 S.W.3d 630, 633 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“Generally, a ‘defect of parties’ refers to joinder problems [*9] involving necessary or indispensable parties.” (citing Allison v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 703 S.W.2d 637, 638 (Tex. 1986) (per curiam))). Linda raised this complaint in her motion for new trial after the trial court granted summary judgment. Thus, the complaint is both untimely and unverified, and it accordingly is waived.” Allan v. Nationstar Mortg., LLC, No. 14-18-00246-CV, 2019 Tex. App. LEXIS 5686, at *8-9 (Tex. App.—Houston [14th Dist.] July 9, 2019)

There were a dozen or so cases in which parties failed to preserve their complaints because they did not raise the same in the trial court.

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

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, June 30, 2019

June 30, 2019

Dear All:

Interestingly enough, there were not a lot of error preservation decisions this last week, or at least not a lot that I caught.  One relatively important one that I had not seen in the last six years or so–that the failure of the trial court to join an indispensable party is a jurisdictional issue, which might mean that said failure is a complaint which can first be raised on appeal.  Maybe.  Though I think you have to ask the trial court to join the indispensable party.

Table of Contents

Some complaint may first be raised on appeal–such as the failure of the trial court to join an indispensable party

Your complaint on appeal must be the complaint you raised in the trial court

Evidence (Running Objection)
Evidence
Summary Judgment
Summary Judgment

The Blurbs

Some complaint may first be raised on appeal–such as the failure of the trial court to join an indispensable party:

Indispensable Party: “In this case, however, the trial court declined to enter judgment on the jury verdict. Although Key had died, that fact did not deprive the trial court of subject-matter jurisdiction, which “deals with the power of a court to determine an action involving a particular subject matter as between the parties and render a certain judgment.” Kshatrya v. Tex. Workforce Comm’n, 97 S.W.3d 825, 829 (Tex. App.—Dallas 2003, no pet.) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)). If the defendant’s death was enough to [*6] deprive the trial court of subject-matter jurisdiction, a case would end before a trial court could allow substitution under Rule 152. … the question naturally arises how can a trial court grant a motion filed when there was no one with standing to file the motion in the first place? The answer to this question is that “[t]he failure to join a jurisdictionally indispensable party constitutes fundamental error, which an appellate court is bound to notice if the error is apparent from the face of the record.” Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex. App.—Houston [1st Dist.] 1991, no writ)).” In re Coats, No. 06-19-00040-CV, 2019 Tex. App. LEXIS 5347, at *5-8 (Tex. App.—Texarkana June 27, 2019)

Your complaint on appeal must be the complaint you raised in the trial court:

Evidence (Running Objection): “The Department contends that Father failed to preserve this issue. 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). Father did not raise an objection at the time Meredith or Wymore testified to the children’s statements regarding where they desired to live. However, Father argues that the trial court granted him a running objection that preserved this error for appeal. Running objections are an exception to the general rule that a party must continue to object and get [*20] a ruling for each individual instance of inadmissible testimony. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (citing Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991); In re A.P., 42 S.W.3d 248, 261 (Tex. App.—Waco 2001, pet. denied), overruled on other grounds by In re A.M., 385 S.W.3d 74 (Tex. App.—Waco 2012, pet. denied). “A running objection is required to be specific and unambiguous.” Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet. denied). Such an objection should “not encompass too broad a reach of subject matter over too broad a time.” Ethington, 819 S.W.2d at 859. Even though the trial court sua sponte granted Father a running objection, the record is unclear regarding the scope of the objection granted. See Huckaby, 20 S.W.3d at 203. We conclude that, due to the objection’s context and the timing of the court’s ruling, the running objection was, at best, restricted to the children’s out-of-ourt statements regarding what they told Meredith about their father directing them to fight and about seeing and experiencing domestic violence. We are not free to assume that the court granted Father a running objection to any witness testifying to any of the children’s out-of-court statements regarding any subject, because not all such statements are necessarily hearsay, and it is the parties’ responsibility to make specific objections and ensure that the record reflects the scope and subject matter of the court’s ruling on those objections. See id. Therefore, Father failed to object to Meredith or [*21] Wymore testifying to the children’s statements regarding where they wanted to live. Accordingly, this issue was not preserved for our review. See Tex. R. App. P. 33.1(a).” In the Interest of A.D.K., No. 06-19-00019-CV, 2019 Tex. App. LEXIS 5295, at *19-21 (Tex. App.—Texarkana June 26, 2019)

Evidence: “In its second issue, Stephens & Myers claims that the trial court erred when it allowed Johnston to testify as to matters that “included pure questions of law and was unreliable.” Johnston testified about the duties of agents and lawyers and about the rules that govern lawyers. Stephens & Myers objected to the testimony but did [*91] 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 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, 2019 Tex. App. LEXIS 5459, at *90-91 (Tex. App.—Eastland June 28, 2019)

Summary Judgment: “Roughly two weeks after the trial court entered summary judgment against him and sustained the Francises’ general objections, Hobson filed a motion for reconsideration of both the summary judgment itself and of the order on the Francises’ objections, combined with a motion for leave to file an amended affidavit and to set aside the summary-judgment order. We will consider that motion for reconsideration to have been the functional equivalent of a motion for new trial. [*18] Hobson’s motion—which the trial court never expressly ruled on—did not call to the trial court’s attention his appellate complaint that it was error to sustain the general objections because they were not specific enough. The rules of error preservation apply to summary-judgment proceedings as well as to trials. Tex. R. App. P. 33.1(a); Seim, 551 S.W.3d at 163-64 (“The same evidentiary standards that apply in trials also control the admissibility of evidence in summary-judgment proceedings. But the rules of error preservation also apply.” (citation omitted)); cf. Cunningham v. Anglin, No. 05-12-00039-CV, 2014 WL 3778907, at *3 (Tex. App.—Dallas July 31, 2014, pet. denied) (mem. op.) (noting rule 33.1(a)’s requirements and stating that party whose summary-judgment evidence was excluded “may not argue on appeal any and every new issue he can think of nor may he resurrect issues he abandoned at the hearing”; if a party “fails to object to the trial court’s ruling that sustains an objection to his summary judgment evidence, he has not preserved the right to complain on appeal about the trial court’s ruling,” and “[e]ven if the objections appear meritorious on appeal, they are not preserved for appellate review if the record does not show the complaint was made to the trial court” (citing Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.)). This principle applies [*19] equally to motions for new trial: the trial court must know what is being complained about. See Tex. R. App. P. 33.1(b) (“In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.”); cf. Cooper v. Tex. Dept. of Criminal Justice Corr. Insts. Div., No. 12-17-00182-CV, 2018 WL 1940395, at *2 (Tex. App.—Tyler Apr. 25, 2018, no pet.) (mem. op.) (holding that by reasserting sham-affidavit argument in motion to reconsider that was overruled by operation of law, appellant preserved argument for appellate review). By not apprising the trial court of this particular complaint, Hobson has waived the argument that the trial court erred in sustaining the Francises’ general objections to his affidavit and supplemental affidavit because, in Hobson’s view, those objections were insufficiently specific to constitute valid objections. Rather, Hobson’s motion for 20 reconsideration sought only to persuade the trial court that his original affidavit “recited sufficient facts to show how he obtained personal knowledge of the facts set forth in the affidavit,” and that the Francises were wrong to lodge a hearsay [*20] objection to Hobson’s recounting out-of-court statements that he made to them asking for an easement. Moreover, Hobson’s motion for reconsideration did not even mention or analyze a third category of the Francises’ general objections: that both affidavits were “replete with conclusory statements, legal opinion and legal conclusion.” As a subpart of his fourth Issue Presented, Hobson contends that the Francises’ general objections should not have been sustained because they did not “otherwise have merit.” n. 11 n. 11 Again, Hobson did not argue to the trial court that the Francises’ general objections did not “otherwise have merit,” and thus waiver seemingly applies to this subissue as well. See Tex. R. App. P. 33.1(a). Despite the wording of Hobson’s issue, which is not on its face entirely clear, his brief analyzes the Francises’ specific objections.” Hobson v. Francis, No. 02-18-00180-CV, 2019 Tex. App. LEXIS 5412, at *17-20 (Tex. App.—Fort Worth June 27, 2019)

Summary Judgment: “Hobson’s motion for the trial court to reconsider and set aside its ruling on the Francises’ objections discussed only the no-personal-knowledge and hearsay aspects, which are formal defects. He did not argue to the trial court that his affidavit contained no substantive defects despite the Francises’ contention, and thus did not give the trial court a chance to reconsider that aspect of the Francises’ general objections, as he must have under rules 33.1(a) and (b). n. 13 n. 13 While it is true that substantive defects in summary-judgment affidavits may be complained about for the first time on appeal, that principle does not logically apply when it is the losing nonmovant complaining that the movant succeeded in challenging the nonmovant’s affidavit on substantive-defect grounds. In this situation, to preserve error Hobson must have first complained to the trial court. See Tex. R. App. P. 33.1(a), (b). Despite apparent waiver of claimed error on this point, we will consider the affidavit statements that Hobson’s brief addresses.” Hobson v. Francis, No. 02-18-00180-CV, 2019 Tex. App. LEXIS 5412, at *26 (Tex. App.—Fort Worth June 27, 2019).

The courts also dealt with a number of issues which the parties had failed to raise in the trial court.

All for now.  Hope this helps.  Y’all have a good 4th.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases June 23, 2019

June 23, 2019

Dear All:

Table of Contents

Irreconcilably Conflicting Jury Answers

One court of appeals held that a delay in seeking a hearing on a motion to transfer venue did not waive the motion

Venue

You have to bring your complaint to the trial court’s attention–and merely filing your motion with the clerk does not do that

Arbitration

You have to comply with the pertinent rules–and if your particular motion for new trial requires the taking of evidence, and you do not have such a hearing on your motion, merely allowing the passage of time to overrule your motion for new trial will not preserve the complaint made in it

Continuance
Motion for New Trial

You have to get a ruling on your objections

Affidavit
Continuance
Evidence
Summary Judgment

The Blurbs

One court of appeals held that to preserve a complaint about irreconcilably conflicting jury answers, you have to raise the complaint before the trial court discharges the jury–which is what I would always tell you to do. But I got a different head count than did the court of appeals on the Supreme Court’s decision in Menchaca, as it looked like to me (in trying to track the admittedly hard-to-follow several opinions in Menchaca) that four justices said appellate courts can disregard irreconcilably conflicting jury answers in the absence of an objection, and a fifth justice said he agreed “in this situation.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 522 (Tex. 2018) (Hecht, CJ, concurring). What a mess:

Irreconcilably Conflicting Jury Answers: “By its fourth issue, Los Compadres contends that the jury issued conflicting findings. Appellees claim that Los Compadres waived its complaint because it failed to object before the jury was discharged. “When an irreconcilable conflict involves one jury answer that would require a judgment in favor of the plaintiff and another that would require a judgment in favor of the defendant, the conflict is fatal.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 509 (Tex. 2018). To properly preserve a complaint that there is a fatal irreconcilable conflict in the jury’s verdict, the party “must raise that objection before the trial court discharges the jury.” Id. at 518.

Los Compadres concedes that it did not object to the jury’s alleged fatal conflicts prior to its discharge. See id. Therefore, error, if any, is not preserved for appeal. See id.; see also Davis v. Vaughters, No. 01-17-00612-CV, 2018 Tex. App. LEXIS 8951, 2018 WL 5661317, at *5 (Tex. App.—Houston [1st Dist.] Nov. 1, 2018, no pet.) (mem. op.) (“Even were we to conclude [*19] that Davis has identified a conflict in the jury’s answers, which we do not, it is well-established that ‘to preserve error based on fatally conflicting jury answers, parties must raise that objection before the trial court discharges the jury.'”).

In light of its failure to preserve this issue, Los Compadres requests that we remand the cause for a new trial in the interest of justice. It states in its reply brief that in Menchaca, a plurality opinion, three justices opined that irreconcilable jury responses did not constitute fundamental error, and concluded that an objection was required prior to the jury’s discharge. Nonetheless, these justices voted with the majority to remand the case for a new trial in the interest of justice, because the Court’s decision addressed confusion in the error preservation requirements for irreconcilable jury responses.

See Menchaca, 545 S.W.3d at 505. However, Los Compadres does not explain with legal argument and citation to applicable authority why it is entitled to a new trial in the interest of justice in this Court and how this Court has authority to do so when we do not have the same authority to remand in the interest of justice as the Texas Supreme Court. See Tex. R. App. P. 38.1(i); Wall v. State Farm Lloyds, ___ S.W.3d ___, ___ No. 01-17-00681-CV, 2018 Tex. App. LEXIS 10899, *14, 2018 WL 6843781, at *5 (Tex. App.—Houston [1st Dist.] Dec. 31, 2018, no pet.) (refusing [*20] to remand in the interest of justice because it had not found error warranting reversal in the trial court’s judgment and explaining that the rules for remand in the interest of justice are not the same in the Texas Supreme Court and the intermediate courts).” Los Compadres Pescadores, L.L.C. v. Valdez, No. 13-17-00344-CV, 2019 Tex. App. LEXIS 5086, at *18-20 (Tex. App.—Corpus Christi June 20, 2019)

One court of appeals held that a delay in seeking a hearing on a motion to transfer venue did not waive the motion:

Venue: “We disagree that waiver could have justified the trial court’s ruling in this case.  Rule 87(1) provides that a movant for transfer has a [*12] duty to request a setting on the motion, but it does not state that the request must be made within any particular time, except to say that the court must rule on the motion within “a reasonable time” prior to trial. Tex. R. Civ. P. 87(1). Further, the cases cited by Gulf are not persuasive on this point. In Ledbetter, the defendant waived its transfer motion because it did not seek a ruling on it until seven months after the trial was completed; here, the case has not even been set for trial. See 896 S.W.2d at 419. The Whitworth court remarked that waiver would have justified the trial court’s denial of the transfer motion, but that was dicta because its ruling affirming the denial was based on the merits of the transfer motion. See 734 S.W.2d at 111. The court in Carlile affirmed the trial court’s denial of a transfer motion where the defendant waited “approximately fourteen months” to request a hearing and “was perhaps less than diligent” in pursuing a ruling on the transfer motion. 138 S.W.3d at 408-09. But the court’s ruling was also based on the fact that the defendant filed summary judgment pleadings and a motion for continuance which were not conditioned upon his venue motion. Id. Here, unlike in Carlile, Eastman did not file any pleadings seeking [*13] to “invoke[] the general jurisdiction of the court to rule on the merits” of the Gulf’s claims. Instead, to the extent Eastman sought affirmative relief from the trial court, that relief related exclusively to discovery matters which, by their very nature, are preliminary to consideration of the claims on their merits. Further, even though Eastman’s original transfer motion was filed in 2013, its amended motion was filed in 2017, and it requested a hearing on the amended motion shortly after it was filed. Under these circumstances, we conclude that Eastman did not waive its venue complaint.” In re Eastman Chem. Co., No. 13-18-00268-CV, 2019 Tex. App. LEXIS 5089, at *11-13 (Tex. App.—Corpus Christi June 20, 2019)

You have to bring your complaint to the trial court’s attention–and merely filing your motion with the clerk does not do that:

Arbitration: “See Murphree v. Cooper, No. 14-11-00416-CV, 2012 WL 2312706, at *1 (Tex. App.—Houston [14th Dist.] June 19, 2012, no pet.) (mem. op.) (“Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling.”). While Read previously had filed a motion to compel arbitration, about ten months after Sibo filed his lawsuit against her and six months after she had filed her answer, she never presented the motion to the trial court for a ruling.” Read v. Sibo, No. 14-18-00106-CV, 2019 Tex. App. LEXIS 5160, at *11 (Tex. App.—Houston [14th Dist.] June 20, 2019)

You have to comply with the pertinent rules–and if your particular motion for new trial requires the taking of evidence, and you do not have such a hearing on your motion, merely allowing the passage of time to overrule your motion for new trial will not preserve the complaint made in it:

Continuance: “Texas Rule of Civil Procedure 251 governs motions for continuance. A motion for continuance shall not be granted without “sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251. Accordingly, motions for continuance generally must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. C.F., 565 S.W.3d at 844. When a motion for continuance does not comply with the rules—for example, when the motion is unwritten or unsupported by verified facts—appellate courts generally presume the trial judge did not abuse its discretion in denying the motion. Id. Oral requests for a continuance do not preserve error. Id. 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. Unlike the appellant in our recent decision in In re L.N.C., Mother does not suggest the denial of her motion for continuance violated her right to due process. No. 14-18-00691-CV, ___ S.W.3d ___, 1900, *5, 2019 Tex. App. LEXIS 645 (Tex. App.—Houston [14th Dist.] Jan. 31, 2019, pet. filed). Accordingly, L.N.C. does not govern this case. Mother’s failure to preserve error precludes appellate review. C.F., 565 S.W.3d at 844. We overrule Mother’s first issue.” In the Interest of B.G.G., No. 14-19-00278-CV, 2019 Tex. App. LEXIS 5168, at *29 (Tex. App.—Houston [14th Dist.] June 20, 2019)

Motion for New Trial: “Regarding JD Enterprises’s motion for new trial, there was no hearing on the motion and it was overruled by operation of law. Tex. R. Civ. P. 329b(c). The overruling of a motion for trial by operation of law preserves error for appeal “unless taking evidence was necessary to properly present the complaint in the trial court.” Tex. R. App. P. 33.1(b) (emphasis added). JD Enterprises’s claim that it did not timely receive notice of the summary judgment motion and hearing required evidence, but no evidence was taken in this case. Under Rule 33.1(b), “if a movant seeks a new trial on a ground on which evidence must be heard by the trial court, the movant must obtain a hearing on its new-trial motion to preserve error.” Tyhan, Inc. v. Cintas Corp. No. 2, No. 01-18-00027-CV, 2018 Tex. App. LEXIS 8847, 2018 WL 5539419, at *1-2 (Tex. App.—Houston [1st Dist.] Oct. 30, 2018, no pet.) (mem. op.); . . . .Because the motion for new trial required the taking of evidence and was overruled by operation of law, we conclude JD Enterprises failed to preserve error, if any, regarding the overruling of its motion for new trial. Tex. R. App. P. 33.1(b).” JD Shelton Enters. LLC v. AGL Constructors, No. 05-18-00765-CV, 2019 Tex. App. LEXIS 4986, at *5-6 (Tex. App.—Dallas June 17, 2019)

You have to get a ruling on your objections:

Affidavit: “Falvey objected to Maloy’s affidavit on the grounds that she was not established to be an expert and that the affidavit was conclusory. Again, the record contains no ruling on the objections. See Tex.R.App.P. 33.1.” Acosta v. Falvey, No. 08-16-00295-CV, 2019 Tex. App. LEXIS 5188, at *6 n.2 (Tex. App.—El Paso June 21, 2019)

Continuance: “JD Enterprises complains about the denial of the motion to extend time filed before the hearing and the denial of its motion for new trial. However, the record does not show that either of these complaints were preserved for review. See Tex. R. App. P. 33.1(a), (b). As a prerequisite to complaining on appeal about the denial of a motion for continuance, the record must show that the motion was brought to the trial court’s attention and the trial court denied the motion or the trial court refused to rule and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a);. . . . Although JD [*5] Enterprises filed the motion to extend time before the trial court heard the motion for summary judgment, there is no indication in the record that JD Enterprises set the motion for hearing or otherwise brought it to the trial court’s attention. Nor does the record show the trial court ruled on the motion to extend time. Thus, JD Enterprises’s complaint regarding the motion to extend time is not preserved for review.” JD Shelton Enters. LLC v. AGL Constructors, No. 05-18-00765-CV, 2019 Tex. App. LEXIS 4986, at *4-5 (Tex. App.—Dallas June 17, 2019)

Evidence: “Documents, including Acosta’s affidavit, appear in the clerk’s record before, and apparently separately from, the summary judgment response. Falvey objected to the trial court considering those documents because they were not submitted as summary judgment evidence and did not comply with Rule 166a(d) of the Texas Rules of Civil Procedure. The record does not, however, contain any ruling on those objections and it appears that the trial court considered Acosta’s documents as summary judgment evidence. We will do the same. See Tex.R.App.P. 33.1 (requiring a ruling on objection to preserve error).” Acosta v. Falvey, No. 08-16-00295-CV, 2019 Tex. App. LEXIS 5188, at *6 n.2 (Tex. App.—El Paso June 21, 2019)

Summary Judgment: “Hagan did nothing to insure that the trial court “affirmatively indicated on the record” it considered the new evidence. It was his burden to obtain a ruling on his motion for leave to designate Clark [an expert] and ensure the record reflects either the trial court’s ruling or refusal to rule on his motion. Tex. R. App. P. 33.1;” Hagan v. Pennington, No. 05-18-00010-CV, 2019 Tex. App. LEXIS 5101, at *12 (Tex. App.—Dallas June 19, 2019)

Y’all have a good week.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, June 17, 2019

June 15, 2019

Dear All:

Table of Contents

Your complaint has to be timely–and the Supreme Court extensively discussed that concept of timeliness, in the context of a Chapter 150 dismissal for lack of a certificate of merit

Certificate of Merit (Majority)
Dissent

One court of appeals implied that a party may first complain on appeal that action by the trial court on remand was inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate

Legal and factual insufficiency complaint can be raised for the first time on appeal from a bench trial

Attorney’s Fees

One case held that an evidentiary objection was preserved, because of the carryover effect from an immediately preceding objection

A Couple of cases addressed whether the complaint was sufficiently specific

Arbitration
Evidence

You have to comply with the pertinent rules

Special Appearance

You have to get a ruling on your complaint

Dismissal

The complaint you raise on appeal must be the complaint you raised in the trial court

Jury Charge

The Blurbs

Your complaint has to be timely–and the Supreme Court extensively discussed that concept of timeliness, in the context of a Chapter 150 dismissal for lack of a certificate of merit, while the dissent pointed out that one might be estopped to raise a complaint, even though the complaint was not waived:

Certificate of Merit (Majority): “Under Chapter 150, both a certificate of merit and the consequence for failing to file one are mandatory. But as our analysis in Crosstex tacitly recognizes, when defendants have so engaged the judicial process that a certificate of merit ceases to serve its intended function, the requirement of its filing is waived. And when the right to a threshold affirmation of merit has been waived, the consequence for failing to file one dissipates. In other words, because the Engineers’ substantial invocation of the judicial process implied an intent to waive the certificate-of-merit requirement, the statutory basis for dismissal has likewise been waived. We therefore affirm the court of appeals’ judgment finding waiver of the statutory right to dismissal and remand the case to the trial court.” Lalonde v. Gosnell, No. 16-0966, 2019 Tex. LEXIS 579, at *27 (June 14, 2019) (Guzman, J., for the majority)

Dissent: “Ultimately, two fundamental truths should determine the outcome of this case. First, chapter 150 gave the engineers the right to obtain dismissal of the homeowners’ claims at any time during this litigation process. And second, we cannot hold that the engineers impliedly waived that right through litigation conduct unless that conduct clearly demonstrated that they knew about and intended to relinquish that right. Because the statute did not require them to seek dismissal early in the process or prohibit them from engaging in litigation before seeking dismissal, none of their conduct clearly demonstrated an intent to relinquish their right to obtain dismissal when and as the statute allowed. I would therefore reverse the court of appeals’ judgment and reinstate the trial court’s judgment dismissing the homeowners’ claims. Because the Court does not, I respectfully dissent.” Lalonde v. Gosnell, No. 16-0966, 2019 Tex. LEXIS 579, at *44 (June 14, 2019) (Boyd, J., dissenting, joined by Hecht, CJ, and Blacklock, J.).

One court of appeals implied that a party may first complain on appeal that action by the trial court on remand was inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate.

Trial Court Action Beyond Mandate: At least one court of appeals has implied that a party can first complain on appeal that, on remand, the trial court took an action that is inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate. Scott Pelley P.C. v. Wynne, No. 05-18-00550-CV, 2019 Tex. App. LEXIS 4943, at *5 (Tex. App.—Dallas June 13, 2019). It is unclear whether the Pelley Court actually held such a complaint could first be raised on the appeal after remand–in Pelley, the appellants “contend[ed] the trial court’s award . . . exceeded this Court’s mandate,” the appellees “argue[d] the [appellants] failed to preserve the issued for appeal,” and the Court held that “[w]hen [as here] a trial court exceeds its authority under a mandate, the resulting judgment is erroneous,” without addressing whether appellants had preserved the complaint in the trial court. Scott Pelley P.C. v. Wynne, No. 05-18-00550-CV, __WL__, 2019 Tex. App. LEXIS 4943, at *4-5, 6 (Tex. App.—Dallas June 13, 2019, no pet. hist.) (Opinion).

Legal and factual insufficiency complaint can be raised for the first time on appeal from a bench trial:

Attorney’s Fees: “In her third issue, Hines contends there was no-evidence or insufficient evidence to support an award for attorney’s fees. Maple counters this argument by claiming Hines failed to object at trial to the reasonableness of the attorney’s fees, so she waived any claim of error. Maple further asserts “the testimony and argument of counsel were sufficient” to uphold an award of attorney’s fees. At trial, Maple’s representative testified that she had to retain an attorney to handle the appeal in county court at law, and she paid the attorney $500.00. We examine a no evidence challenge on appeal as a challenge to the legal sufficiency of the evidence. . . . . Generally, an appellant must preserve complaints for appellate review through a timely request, objection, or motion and obtain a ruling in the trial court. . . . .However, “[i]n a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. 33.1(d). Hines did not waive her no-evidence challenge to the attorney’s fee award by raising it for the first time on appeal.” Hines v. Maple Hous. of Beaumont, No. 09-17-00381-CV, 2019 Tex. App. LEXIS 4912, at *9 (Tex. App.—Beaumont June 13, 2019)

Possession and Access Order: “[H] asserts that [P] did not preserve error concerning the sufficiency of the evidence because she did not file a request for findings of fact and conclusions of law or a motion for new trial. But the sufficiency issues in this case concern the evidence on issues tried to the court, not the issue tried to the jury. “In a civil nonjury case, [*10] a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex.R.App.P. 33.1.” In the Interest of S.H., No. 08-16-00052-CV, 2019 Tex. App. LEXIS 4843, at *9 (Tex. App.—El Paso June 12, 2019)

Here is a case holding that an evidentiary objection which was preserved, because of the carryover effect from an immediately preceding objection:

Evidence: “By arguing only relevance to the trial court when objecting to the sexual-assault indictment, it appears at first blush that Father failed to preserve his appellate hearsay argument. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); . . . .But we conclude that Father did not waive this issue because the other indictments had been admitted over his hearsay objection immediately [*4] before the State offered the sexual-assault indictments, allowing Father to assume that the trial court’s ruling would be the same and relieving him of the duty to again object on the basis of hearsay to this similar evidence. See, e.g., Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-91 (Tex. App.—Waco 2000, pet. denied) (op. on reh’g); Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 243 (Tex. App.—Corpus Christi—Edinburg 1994, writ denied); City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App.—Fort Worth 1988, writ denied).” In the Interest of A.W., No. 02-19-00057-CV, 2019 Tex. App. LEXIS 4938, at *3-4 (Tex. App.—Fort Worth June 13, 2019)

Here are a couple of cases which addressed whether the complaint was sufficiently specific:

Arbitration: “ReadyOne attacks reliance on the purported Rule 11 agreement on both substantive and procedural grounds. We address ReadyOne’s procedural objection first. ReadyOne contends that notwithstanding the validity of any purported Rule 11 agreement precluding the appointment of JWA, Guillen-Chavez waived any objection to the arbitrator by failing to [*12] renew her objection to the arbitrator’s authority before the arbitrator himself. See Brook v. Peak Int’l, Ltd., 294 F.3d 668, 673-74 (5th Cir. 2002)(objections to constitution of arbitration panel must be stated at beginning of arbitration). Thus, even if a valid Rule 11 agreement formed on the terms that Guillen-Chavez advances in this Court and in the court below, her failure to repeat this specific point before the arbitrator waived her ability to rely on the Rule 11 agreement on appeal in this Court. In the first place, we observe that Guillen-Chavez did object at length to the seating of the arbitrator based on the fact that he was not from El Paso. ReadyOne urges us to look deeper into Guillen-Chavez’s objection and hold that the argument was not preserved because her argument that the arbitrator is “not from El Paso” was based not on the assertion of a contractual right to have an El Paso arbitrator, but on her perception that the arbitrator could not be fair due to a lack of political and cultural understanding of the El Paso’s unique cross-border environment. This distinction walks a razor’s edge. Indeed, it is hard to determine whether the arguments raised when Guillen-Chavez objected to the arbitrator being from outside of El Paso were separate from [*13] her contractual right-to-a-local-arbitrator argument, or whether those concerns merely informed an objection on contractual grounds to the arbitrator being from out-of-town. Apart from this record ambiguity, we also find ReadyOne’s preservation argument difficult to square with the reality that the contested issue of arbitrator identity was extensively and heavily litigated for months in district court.” Guillen-Chavez v. ReadyOne Indus., No. 08-17-00046-CV, 2019 Tex. App. LEXIS 4841, at *11-13 (Tex. App.—El Paso June 12, 2019)

Evidence: “Appellant also asks us to review its other objections to appellees’ reply evidence. We conclude these objections were not sufficiently specific to preserve error for review. See Tex. R. App. P. 33.1(a)(1)(A) (objections must be made “with sufficient specificity to [*19] make the trial court aware of the complaint”). For example, appellant made the following global objection to the trial court: “[Appellant] objects to the emails offered as Exhibits 1 through 40, for the reason that each contains inadmissible hearsay. Tex. R. Evid. 801.” The cardinal rule of error preservation is that an objection must be clear enough to give the trial court an opportunity to correct the alleged error. Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008). Without specifying which statements in each of the forty emails were hearsay, the trial court was left to guess. The fact that the trial court overruled all of appellant’s objections does not in itself preserve error; the objection must have been sufficiently specific in the first instance. See Tex. R. App. P. 33.1(a) (requiring both a specific objection “and” a ruling). Moreover, without specific objections, there is simply nothing for us to review; like the trial court, we are left to guess.” Duncan Litig. Invs., LLC v. Watts, No. 13-18-00265-CV, 2019 Tex. App. LEXIS 4856, at *18-19 (Tex. App.—Corpus Christi June 13, 2019)

You have to comply with the pertinent rules:

Special Appearance: “Although ad litem counsel argued during closing arguments that the trial [*32] court lacked personal jurisdiction over Jeffrey because he had never been served with process, counsel also questioned witnesses, elicited testimony that Jeffrey had not directly harmed Jennifer by his actions, objected on multiple occasions to the admissibility of evidence, questioned a witness on voir dire, requested that the trial court take judicial notice of its entire file, and argued that the Department had not met its burden of establishing, by clear and convincing evidence, that Jeffrey had endangered Jennifer and that termination of his parent rights was in her best interest. Ad litem counsel’s actions at the final hearing “invoked the judgment of the court on a question other than the court’s jurisdiction, recognized that the action was properly pending in Texas, and sought affirmative action from [the trial] court.” See In re D.M.B., 467 S.W.3d at 104; see also Beistel v. Allen, No. 01-06-00246-CV, 2007 Tex. App. LEXIS 4307, 2007 WL 1559840, at *3 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.) (mem. op.) (holding that party made general appearance through counsel when, at hearing to determine whether to terminate wage-withholding obligation, counsel objected to admission of other party’s exhibit, which was affirmative action that impliedly recognized court’s jurisdiction over party). We hold that Jeffrey generally appeared through ad [*33] litem counsel and, therefore, has waived his complaint that the Department violated his due process rights by failing to serve him with process. See In re R.A.G., 545 S.W.3d at 655 (holding that party generally appeared when party answered, appeared at trial by telephone, and his attorney questioned witnesses and made final argument); In re D.M.B., 467 S.W.3d at 103-04 (holding that party generally appeared when ad litem attorney attended adversary hearing and made objections to Department’s request for temporary restraining order and to admissibility of evidence).” In re M.D.M., No. 01-18-01142-CV, 2019 Tex. App. LEXIS 4927, at *31-33 (Tex. App.—Houston [1st Dist.] June 13, 2019)

You have to get a ruling on your complaint:

Dismissal: “We first consider whether the trial court’s alleged error in not dismissing the case rendered the judgment void or merely voidable. “[A] judgment is void only when it is shown that the court had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court.” Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). The dismissal dates in the version of section 263.401 applicable to this case are not jurisdictional. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 641-42 (Tex. 2009) (orig. proceeding). A judgment is not void merely because it was made after the dismissal dates in that version of section 263.401. If a judgment is merely voidable, challenges to that judgment are subject to the rules for preservation of error. See Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 923 (Tex. 2011). To preserve a complaint for appellate review, the record must show (1) the complaint was made to the trial court by a timely and sufficiently specific request, objection, or motion, and (2) the trial court either ruled on the request, objection, or motion, or the trial court refused to rule [*5] and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). We assume for the sake of argument that Grandparents’ motion was timely. The record does not reflect that the trial court ruled on the motion, nor does it reflect that Grandparents sought a ruling but the trial court refused to rule. Grandparents did not mention the motion to dismiss when trial resumed on October 22. Based on these facts, we conclude Grandparents have not preserved error regarding dismissal. We overrule their first issue.” In re P.N.T., No. 14-18-01115-CV, 2019 Tex. App. LEXIS 4743, at *4-5 (Tex. App.—Houston [14th Dist.] June 11, 2019)

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

Jury Charge: “At the charge conference, Ramji objected to the use of the word “damages” in Jury Question 3 and requested that the term “lost profits” be used instead. He also objected that “the instruction on the elements of damages is defective because there is no evidence that there was a pending sale of the properties to [Ramji] at the time of the alleged interference.” However, he never objected to the instruction using the difference between the price that 6100 Clarkson had to agreed to pay the Clarks [*14] and “the amount [it] would have made on the sale of the properties to [Ramji],” nor did he suggest or request that the jury be instructed to look at the 2016 sales price price of the properties in calculating the damages. Thus, to the extent that Ramji is complaining about the instruction regarding the measure of damages submitted to the jury in Jury Question 3, the issue is waived. . . . .Thus, damages are measured by the instruction given. See Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007).” Ramji v. 6100 Clarkson, L.P., No. 01-18-00044-CV, 2019 Tex. App. LEXIS 4926, at *13-14 (Tex. App.—Houston [1st Dist.] June 13, 2019)

We then had the typical significant number of cases which held that parties failed to preserve error because they did not raised their complaint in the trial court.

All for now.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, June 11, 2019

June 11, 2019

Dear All:

Table of Contents

The Supreme Court held that one complaint which may be raised for the first time on appeal is a complaint about the specificity of a court order establishing what a parent must do to receive child custody, when a parental-right termination under Family Code Section 161.001(b)(1)(O) is based on a violation of that order

The Supreme Court confirmed in a Family Code Chapter 201 proceeding, if you want a jury trial, you better ask for it before the associate judge

You don’t waive service, nor your ability to contest a default judgment taken after invalid service in one case by answering in another lawsuit in the same court

You must comply with the pertinent rules

Avoidance
Summary Judgment

You have to get a trial court ruling on your complaint

Affidavits

The Blurbs

I missed this one earlier, but the Supreme Court held that one complaint which may be raised for the first time on appeal is a complaint about the specificity of a court order establishing what a parent must do to receive child custody, when a parental-right termination under Family Code Section 161.001(b)(1)(O) is based on a violation of that order:

Order: “Next, we address whether the court of appeals erred in failing to review the trial court’s order to ensure it was sufficiently specific to warrant termination under section 161.001(b)(1)(O). See Tex. Fam. Code § 161.001(b)(1)(O). In essence, to [*14] terminate parental rights under section 161.001(b)(1)(O): (1) the parent must have failed to comply with the provisions of a court order, which (2) specifically established the actions necessary for the parent to receive custody of the child from the Department, which serves as the permanent or temporary conservator of the child. Id. The mother argues that the evidence was legally insufficient to support the first prong of section 161.001(b)(1)(O) and that the lower courts are required to review whether the order was sufficiently specific for the mother to follow. . . . After a permanency hearing, the trial court adopted the Department’s service plan and incorporated it into its order. . . . A trial court order referenced by section 161.001(b)(1)(O) is a mandate or directive that establishes some steps or actions necessary for the parent to obtain return of the child who is in the Department’s custody. See Tex. Fam. Code § 161.001(b)(1)(O); . . . .Section 161.001(b)(1)(O) makes clear that an order must be sufficiently specific to warrant termination of parental rights for failure to comply with it. See Tex. Fam. Code § 161.001(b)(1)(O). . . . . Because a trial court must necessarily decide that a court order is sufficiently specific for the parent to comply before terminating a parent’s rights under section 161.001(b)(1)(O), a trial court cannot terminate parental rights for failure to comply without first considering the order’s specificity. See Tex. Fam. Code § 161.001(b)(1)(O). Likewise, an appellate court errs when it upholds termination under a section 161.001(b)(1)(O) finding without considering the specificity of the order. Here, the court of appeals noted that the mother did not argue the service plan itself was not sufficiently specific, characterizing her challenge as to the specificity of the order only. See ___ S.W.3d at ___, 2018 Tex. App. LEXIS 2723 at *10. Because the trial court incorporated the service plan into the order, however, we conclude that the mother’s challenge encompassed the specificity of the service plan. [The court of appeals] did not address the specificity of the order’s provisions. See id. at ___, 2018 Tex. App. LEXIS 2723 at *11. We hold that the court of appeals erred in failing to address the specificity of the order, which included the service plan. . . . [T]he court of appeals failed to address the specificity of the order under section 161.001(b)(1)(O). Therefore, we remand the case to the court of appeals for further proceedings consistent with this opinion.” In the Interest of N.G., No. 18-0508, 62 Tex. Sup. Ct. J. 1069, 2019 WL 2147263, 2019 Tex. LEXIS 465, at *13-19 (May 17, 2019)

I also cogitated about this one, but decided that this was an error preservation holding, in which the Supreme Court confirmed in a Family Code Chapter 201 proceeding, if you want a jury trial, you better ask for it before the associate judge:

Jury Trial: “Chapter 201 of the Family Code fulfills the statutory promise of a jury trial on demand by allowing for a jury trial in either the referring court or before an associate judge. Associate judge proceedings do not occur by happenstance, nor are they compelled. So with a timely objection, parties can choose to have the referring court adjudicate the merits following a bench or jury trial. But once the parties elect a bench trial before the associate judge, Chapter 201 does not confer a right to demand a jury trial in a de novo hearing. If a de novo hearing is [*20] requested, the referring court has discretion to grant a first-time jury request, but the statute cannot reasonably be read as affording the parties a right to a jury trial at that juncture. And because we agree with the court of appeals that the trial court was not obligated to grant Mother’s jury demand under the circumstances, we affirm the court of appeals’ judgment.” In re A.L.M.-F., No. 17-0603, 62 Tex. Sup. Ct. J. 910, 2019 Tex. LEXIS 426, at *19-20 (May 3, 2019)

You don’t waive service, nor your ability to contest a default judgment taken after invalid service in one case by answering in another lawsuit in the same court:

Service: “ In response, Anissa does not dispute that the record clearly demonstrates that the service returns were deficient, rather she contends that Priscilla waived defective service because she had actual notice of the lawsuit in which the Default Judgment was entered and she generally appeared in the hearing before the trial court in which the challenged Default Judgment was rendered. This argument is without merit.

First, the argument that because Priscilla had actual notice of Cause Number P-08376 and thus waived service is unavailing. It is well established that “[a]ctual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him.” Offshore Express, 2018 WL 6542502, at * 3 (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Harrell v. Mex. Cattle Co., 11 S.W. 863, 865 (Tex. 1889)).

Second, the argument that Priscilla—despite not answering—entered into a general appearance in Cause Number P-08376 when her attorney asked at the May 8, 2018 hearing in Cause Number P-08448 to file an answer in Cause Number P-08376 is creative but ultimately equally unavailing. Anissa is correct that Texas Rule of Civil Procedure 120 provides that a defendant may, “in person, or by attorney, or by his duly authorized agent, enter an appearance in open court” and that “[s]uch appearance shall be noted by the judge upon his docket and entered in the minutes, and shall have the same force and effect as if the citation had been duly issued and served as provided by law.” Tex. R. Civ. P. 120. Anissa is also correct that “a party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.” Exito Elecs., Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). But, in this case, Priscilla did not make any appearance in Cause Number P-08376, the lawsuit in which the Default Judgment was entered. The only lawsuit Priscilla or her lawyer appeared in was Cause Number P-08448, Priscilla’s own lawsuit.” Wyatt v. Deal, No. 02-18-00246-CV (Tex. App.–Fort Worth June 6, 2019).

You must comply with the pertinent rules:

Avoidance: “Garza argues that the $260,000 fee awarded to Pruneda was unconscionable and against public policy. However, “[a]n allegation that a provision in a contract is void, unenforceable, or unconscionable is a matter in the nature of avoidance and must be affirmatively pleaded. If a party fails to plead the affirmative defense, it is waived.” Godoy v. Wells Fargo Bank, N.A., 542 S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2017, pet. granted); see Tex. R. Civ. P. 94. In her answer to Pruneda’s suit and in her response to Pruneda’s motion for summary judgment, Garza never argued that the contract was unconscionable. She raised the issue of conscionability for the first time in her motion for new trial. Therefore, Garza has waived this argument.” Garza v. Pruneda, No. 13-18-00222-CV, 2019 Tex. App. LEXIS 4639, at *6 (Tex. App.—Corpus Christi June 6, 2019)

Summary Judgment: “On appeal, Wilson asserts that during the summary judgment hearing she was not permitted “to present email evidence by Plaintiff [the LRC Firm] or evidence of Plaintiffs [sic] misconduct pursuant to Tex. R. Civ. P. 8.04 [sic] and 801.” She argues the trial court [*2] erred by excluding her evidence, which does not appear in the record but is attached to her appellate brief. Because Wilson did not file a response to the motion for summary judgment, the evidence was not before the trial court and, thus, is outside the scope of our review. See 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.”); see also D.R. Horton—Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (“A non-movant must present its objections to a summary judgment motion expressly by written answer or other written response to the motion in the trial court or that objection is waived.”). Thus, Wilson’s appellate arguments do not form a proper basis to reverse the trial court’s judgment.” Wilson v. Lamberth Ratcliffe Covington Pllc, No. 05-18-01207-CV, 2019 Tex. App. LEXIS 4696, at *1-2 (Tex. App.—Dallas June 6, 2019)

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

Affidavits: “Willman objected to Mary Lee’s and Ben Thompson’s affidavits, but the trial court did not explicitly rule on those objections. Where the record does not reflect that the trial court ruled or refused to rule on objections to summary judgment evidence, we may not infer a ruling based solely on the trial court’s summary judgment decision. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018). By failing to obtain an express or implied ruling on his objections to the summary judgment evidence, Willman waived the objections. See Tex. R. App. P. 33.1(a);” In re Estate of Spiller, No. 04-18-00522-CV, 2019 Tex. App. LEXIS 4608, at *11 n.3 (Tex. App.—San Antonio June 5, 2019)

As usual, numerous decisions held that parties failed to preserve error by failing to make their complaints in the trial court.

All for now.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, 6/3/19

June 1, 2019

Dear Gang:

The main takeaway this week:  get a ruling on your complaints.  If you don’t, you’ve not preserved error.

You must get a ruling on your complaint:

Affidavit: “A well-developed body of law governs affidavits in the summary judgment context. The case law draws a distinction between defects in form and substance. See Dailey v. Albertson’s, Inc., 83 S.W.3d 222, 225 (Tex.App.–El Paso 2002, no pet.).  Form defects must be preserved by both an objection and ruling at the trial court, while substantive objections can be raised even on appeal. Id.; MVS Int’l Corp. v. Int’l Adver. Sols., LLC, 545 S.W.3d 180, 191 (Tex.App.–El Paso 2017, no pet.). Hearsay is an objection to form. Vasquez v. S. Tire Mart, LLC, 393 S.W.3d 814, 819 (Tex.App.–El Paso 2012, no pet.); Rockwall Commons Associates, Ltd. v. MRC Mortg. Grantor Tr. I, 331 S.W.3d 500, 507 (Tex.App.–El Paso 2010, no pet.); see also Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex.App.–Dallas 2011, no pet.)(holding that hearsay statement in affidavit filed in support of summary judgment is a defect in form that must be objected to at the trial). Consequently, unless an order sustaining a hearsay objection to summary judgment evidence is reduced to writing, signed, and entered of record, the evidence remains part of the summary judgment proof even if a party has objected to an opponent’s summary judgment evidence. See Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166 (Tex. 2018), citing Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 842 (Tex.App.–Dallas 2003, no pet.). Because there was no ruling on the County’s objection below, we are constrained to accept the news article at face value. See also Tex.r.evid. 802 (“Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.”).” Cty. of El Paso v. Baker, No. 08-18-00012-CV, 2019 Tex. App. LEXIS 4498, at *14-15 (Tex. App.—El Paso May 31, 2019)

Attorney’s Fees (TCPA): “Although Bresenhan requested attorney’s fees under Section 27.009(b) in his response to Calkins and Norman’s TCPA motion to dismiss, the appellate record does not include a written or oral ruling [*23] on his request. See Tex. R. App. P. 33.1(a)(2). The probate court’s written order denying the motion to dismiss states: ‘As requested, the Court takes judicial notice of the contents of the Court’s file, and at this time, the motion to dismiss of Richard Calkins, and Susan C. Norman, under Chapter 27 of the Texas Civil Practice & Remedies Code is DENIED.’ It does not include any language refusing to award Bresenhan attorney’s fees. Nor does it implicitly deny Bresenhan’s fees request, as the denial of a respondent’s attorney’s fees does not necessarily flow from the denial of a motion to dismiss. See Tex. Civ. Prac. & Rem. Code §§ 27.003, .009(b). Quite the opposite,  a finding that a motion to dismiss is not well taken must precede an award of the respondent’s attorney’s fees under Section 27.009(b). See id. § 27.009(b) (requiring finding that motion to dismiss “is frivolous or solely intended to delay” before court may award attorney’s fees to respondent). Likewise, no oral ruling appears in the court reporter’s transcript. During argument on Bresenhan’s fee request, the probate court questioned whether Bresenhan had timely filed the request and supporting affidavit under the local rules. Rather than argue the timeliness of the request or press for the probate court for a ruling, [*24] Bresenhan responded: “All right. Fine. Then we’ll just limit to denying the motion.” And the probate court signed an order to that effect. By failing to obtain a ruling from the probate court, Bresenhan has not preserved for appellate review any issue regarding his request for attorney’s fees. See Tex. R. App. P. 33.1(a)(2); see also Jackson, 2006 Tex. App. LEXIS 9495, 2006 WL 3095384, at *3; Kadhum, 2006 Tex. App. LEXIS 3401, 2006 WL 1125240, at *2 n.4. Accordingly, we overrule his issues on appeal.” In re Estate of Calkins, No. 01-18-00160-CV, 2019 Tex. App. LEXIS 4448, at *22-24 (Tex. App.—Houston [1st Dist.] May 30, 2019)

Discovery: “In its first issue, the County challenges the district court’s order “refusing to permit” the County to conduct discovery as to the reasonableness of EEG’s costs. Specifically, the County wanted to depose an EEG witness before the district court’s hearing on the motion for costs. However, the County did not obtain an adverse ruling from the district court to preserve this issue for appeal. See Tex. R. App. P. 33.1(a). First, the County never noticed the deposition of an EEG witness. Second, the County did not request a continuance to depose an EEG witness before the motion for costs was heard. Third, the County did not renew its announcement of “not ready” for an evidentiary hearing when the district court stated its intent to proceed with the hearing or when Owens took the stand to testify in support of EEG’s calculation of its costs for production of documents. On this record, we cannot conclude that the County has shown that [*9] the district court refused to permit discovery as to the reasonableness of EEG’s costs. Accordingly, we overrule the County’s first issue.” Wichita Cty. v. Envtl. Eng’g & Geotechnics, Inc., No. 03-18-00434-CV, 2019 Tex. App. LEXIS 4488, at *8-9 (Tex. App.—Austin May 31, 2019)

All for now.  More next week.

Yours, Steve

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