Error Preservation in Texas Civil Cases, May 11, 2020

May 11, 2020

Dear All:
I hope you all remain safe and well.  I failed to post anything last week–I had good intentions, but wisdom teeth extractions got in the way.  Those were truly a definition of fun I’d either not previously heard, or at least not fully appreciated.

So here is what we have from the last couple of weeks:

Table of Contents

  • The Supreme Court reminded us that “collateral estoppel is an affirmative defense that must be pleaded unless tried by consent”
  • One can first raise ripeness as a complaint for the first time on appeal
  • We have a few examples as to how to preserve your complaints–one, involving a hearsay objection based on a document being prepared in anticipation of litigation, and one about being denied an evidentiary hearing on a petition to annul a marriage
  • You must comply with other pertinent rules to preserve your complaint–such as complaining about the efforts of another to prove up Attorneys Fees using 18.001 Affidavits (including the interplay between a failure to segregate fees, and a complaint about reasonableness and necessity), and complaining about findings or capacity.
  • You have to get a ruling on your complaint (here, about discovery)–which doubles as a way to confirm you presented your complaint to the trial court
  • The complaint you raise on appeal must be the complaint you raised in the trial court

Consent
Evidence

  • Be careful not to waive a complaint by not including claims or affirmative defenses in subsequent pleading amendments

The Blurbs

The Supreme Court reminded us that “collateral estoppel is an affirmative defense that must be pleaded unless tried by consent”:

Collateral Estoppel: “The Hurtados contend we should not reach the question whether to recognize an exception in this case because the insurer is collaterally estopped from relitigating facts regarding Guevara’s liability for the accident that were established in their underlying suit against her. But the Hurtados did not preserve this issue for our review. Collateral estoppel is an affirmative defense that must be pleaded unless tried by consent. Tex. R. Civ. P. 94; Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494-95 (Tex. 1991). Because the Hurtados raised collateral estoppel for the first time at a summary judgment hearing and said nothing in writing on the matter until their appellate briefing, they forfeited the defense. See Roark, 813 S.W.2d at 494-95.” Loya Ins. Co. v. Avalos, No. 18-0837, 63 Tex. Sup. Ct. J. 969 n.3, 2020 Tex. LEXIS 373, at *8 (May 1, 2020)

One can first raise ripeness as a complaint for the first time on appeal:

Ripeness: “In its first issue, eQuine urges the trial court lacks subject-matter jurisdiction over what eQuine characterizes as “Jacoby’s premature Indemnity Claims.” eQuine did not file a plea to the jurisdiction, did not specially except to Jacoby’s pleadings, and did not specifically [*7] deny Jacoby’s assertion that he has performed all conditions precedent to recovery of his damages, attorneys’ fees, and expenses. See Tex. R. Civ. P. 54. Ripeness is an element of subject-matter jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). HN2 Because subject-matter jurisdiction is essential to the authority of a court to decide a case, it cannot be waived and may be raised for the first time on appeal. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000). Accordingly, notwithstanding eQuine’s failure to raise the issue in the trial court, we will address the issue here. Because eQuine did not specifically deny Jacoby’s assertion that he performed all conditions precedent, we will consider the averments in Jacoby’s pleading in light of controlling authority on the issue of ripeness.” eQuine Holdings, LLC v. Jacoby, No. 05-19-00758-CV, 2020 Tex. App. LEXIS 3727, at *6-7 (Tex. App.—Dallas Apr. 30, 2020)

Here are a few examples as to how to preserve your complaints–one, involving a hearsay objection based on a document being prepared in anticipation of litigation, and one about being denied an evidentiary hearing on a petition to annul a marriage:

Evidence: “In his first issue, Joiner contends the trial court [*13] erred by admitting Dr. Turner’s CV, report, and opinion letter into evidence under the business-records exception to the rule against the admission of hearsay evidence. Joiner argues that all three of these documents were prepared in anticipation of trial and, therefore, were not admissible as business records. In response, the State asserts that because Joiner’s issue on appeal does not comport with his objections in the trial court, he did not properly preserve this issue for appellate review. . . .The State argues that Joiner did not object to the admission of the report on the ground that it was prepared in anticipation of litigation. We disagree. On the first day of trial, prior to jury selection, the trial court conducted a hearing to consider Joiner’s motion to exclude the State’s witness list and the State’s list of witnesses with knowledge. Specifically, Joiner’s attorney sought to exclude Dr. Turner’s testimony. The State responded that it did not intend to call Dr. Turner as an expert; instead, Dr. Turner would testify as the custodian of the business records the State intended to use as trial exhibits, including Dr. Turner’s CV, his report, and a subsequent letter re-confirming the opinions he provided in his report. The judge noted that Joiner’s attorney wanted him to exclude not only Dr. Turner’s testimony but all of the records that the State had tendered and asked, “is that correct?” Joiner’s attorney responded: “Yes, Your Honor. The initial bunch of records were completed in furtherance of litigation, not for a business purpose record. And we would seek [*16] to strike those because they were completed in litigation. In addition, the CV of the expert would only be going to bolster those records that were created in furtherance of litigation.” The trial court allowed Dr. Turner to testify outside the presence of the jury. Dr. Turner testified that he was the custodian of his CV, his report pertaining to Joiner, and his subsequent opinion letter reconfirming the opinions stated in his report. Joiner’s attorney again objected, arguing that the CV and letter were not regularly kept business documents but were prepared for this litigation. The trial court admitted the records over Joiner’s objections. For Joiner’s objection to have been sufficient, it had to be sufficiently specific “to make the trial court aware of the complaint.” Tex. R. App. P. 33.1(a)(1)(A). During the discussion of Joiner’s motion to exclude the State’s witness list, the prosecutor maintained that the report would be offered as a business record, and Joiner’s counsel argued the report was prepared in anticipation of litigation. Even though the admissibility of the report was not the precise matter before the trial court when Joiner first made the objection, it was relevant to the discussion of the motion [*17] to exclude Dr. Turner as an expert witness. Further, it appears from the record that Joiner’s attorney renewed this objection at the close of Dr. Turner’s testimony. Accordingly, we conclude this objection was preserved for appellate review.” In re Commitment of Joiner, No. 05-19-00144-CV, 2020 Tex. App. LEXIS 3570, at *12-17 (Tex. App.—Dallas Apr. 28, 2020)

Hearing: “The guardians contend Laura waived her evidentiary hearing argument, but the record indicates otherwise. After the trial court granted the guardians’ petition and annulled the marriage, Laura objected “to not being allowed to produce evidence at a final hearing.” The trial court explained why it disagreed and reiterated that the annulment order was final. We conclude Laura preserved her complaint for appeal. See Tex. R. App. P. 33.1(a); Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164, 166 (Tex. 2018) (per curiam); In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).” In re Marriage of Thrash, No. 04-19-00236-CV, 2020 Tex. App. LEXIS 3596, at *8 (Tex. App.—San Antonio Apr. 29, 2020)

You must comply with other pertinent rules to preserve your complaint:

Attorneys Fees (18.001 Affidavits): “To establish the reasonableness of their fees, pursuant to civil practice and remedies code § 18.001(b), GPM filed and served prior to trial several affidavits signed by Mark Enoch. Mark was also designated as an expert, and his affidavits included his opinion that the services and fees described in the invoices attached to his affidavits were reasonable and necessary, as well as his testimony authenticating the invoices and demonstrating their admissibility as business records. The Namdars did not file any counter-affidavits [*29] and the trial court struck the experts they designated to testify regarding the necessity of and reasonableness of GPM’s attorney fees. The Namdars cross-examined Mark extensively regarding whether fees incurred to dismiss the Namdars’ defenses and counterclaims were “caused by” and recoverable in furtherance of GPM’s contract claim. Despite the cross-examination and arguments in closing that GPM had failed to segregate fees unrelated to its contract claim, the jury awarded the exact amount requested by GPM, $1,273,97.00 for work through trial, with additional amounts awarded for post-judgment and appellate work. GPM contends that in failing to file counter-affidavits the Namdars waived their challenge to the reasonableness and necessity of GPM’s fees. A section 18.001 affidavit, uncontested by a counter-affidavit, provides admissible testimony supporting the reasonableness and necessity of the charges proven up by the affidavit, and upon assertion of a proper objection, prohibits controverting evidence on those issues. . . .The rule seeks to obviate the need for expert testimony at trial to establish reasonableness and necessity.. . .”Although not conclusive as to the amount of damages, a [*30] proper section 18.001 affidavit constitutes legally sufficient evidence to support findings of fact as to reasonableness and necessity.” Id.; Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort Worth 2006, no pet.) (“An uncontroverted section 18.001(b) affidavit provides legally sufficient—but not conclusive—evidence to support a jury’s finding that the amount charged for a service was reasonable and necessary.”). Such an affidavit does not establish causation between the injury and the fees at issue, however, or establish as a matter of law entitlement to the requested fees. Tex. Civ. Prac. & Rem. Code § 18.001 (“The affidavit is not evidence of and does not support a finding of the causation element of the cause of action that is the basis for the civil action.”); . . . . Although we question the extent to which the Namdars’ arguments and examination permissibly involved causation as opposed to the impermissible necessity of the services for which the fees were incurred, GPM’s failure to object waived any argument that the section 18.001 affidavits precluded a challenge to whether GPM’s fees were reasonable and necessary. We thus consider the Namdars’ segregation arguments in this context.” Namdarkhan v. Glast, Phillips & Murray, P.C., No. 05-18-00802-CV, 2020 Tex. App. LEXIS 3499, at *28-30 (Tex. App.—Dallas Apr. 24, 2020)

Capacity: “The jury charge, which was submitted without defense objection, did not ask whether the landlord committed the statutory violations, but whether Kessling committed the violations. [*7] Kessling never filed a verified denial pursuant to Rule 93 asserting that he was not liable in the capacity in which he was sued or that he was not the proper party; he filed only a general denial to the lawsuit. Tex. R. Civ. P. 93(2), (4).   A party who does not follow rule 93’s mandate waives any right to complain about the matter on appeal. . . . Whether there is a defect of parties or whether a defendant is sued in a capacity he should not be, he must file a verified denial to preserve his complaint.  . . . Kessling did not do so and the jury charge submitted Kessling by name. He has waived the issue. See Tex. R. App. P. 33.1(a).” Kessling Servs. v. Manning, No. 13-19-00076-CV, 2020 Tex. App. LEXIS 3836, at *6-7 (Tex. App.—Corpus Christi May 7, 2020)

Findings and Conclusions: “Mother requested that the trial court issue findings of fact and conclusions of law in support of its name-change decision. But when the trial court failed to respond, Mother did not file a notice of past due findings, which waives any challenge based on the failure to file findings. See Ad Villarai, LLC v. Chan II Pak, 519 S.W.3d 132, 137 (Tex. 2017) (“We have held that a party waives its right to challenge a failure to file findings if it does not file a notice of past due findings as rule 297 requires.”).” In the Interest of I.D.Z., No. 08-18-00202-CV, 2020 Tex. App. LEXIS 3707, at *6 n.5 (Tex. App.—El Paso Apr. 30, 2020)

You have to get a ruling on your complaint–which doubles as a way to confirm you presented your complaint to the trial court:

Discovery, etc.: “Brady also complains that the trial court refused to let Brady testify at the special appearance hearing, failed to require Kane to be deposed, and refused to compel Kane to respond to Brady’s jurisdictional discovery. Brady waived [*28] those complaints by failing to request the relief from the trial court. See TEX. R. APP. P. 33.1(a). Brady’s counsel did not call Brady to the stand to testify at the hearing, nor did the trial court refuse either party the right to call witnesses at the hearing. Brady’s counsel admitted at the hearing that he had not requested to depose Kane and stated that he thought they had “enough to defeat the special appearance as it is.” Similarly, Brady did not file a motion to compel against Kane to obtain responses to jurisdictional discovery. Moreover, Brady did not seek a continuance of the special appearance hearing to obtain Kane’s deposition or to seek an order compelling the discovery. Brady, therefore, waived these complaints. We overrule Brady’s third and fourth issues.” Brady v. Kane, No. 05-18-01105-CV, 2020 Tex. App. LEXIS 3589, at *27-28 (Tex. App.—Dallas Apr. 28, 2020)

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

Consent: “R.R. first challenges the Rule 11 agreement between the parties regarding the managing conservatorship of L.W.1, D.R., A.M.1, A.M.2, and P.R. According to R.R., there was no written agreement, but an oral agreement to which her court appointed counsel agreed and which she never “personally and orally” [*6] approved. At trial, however, R.R. never complained that the agreement had not been personally and orally approved by her. And in her motion for new trial, she alleged being coerced into entering the agreement, but did not allege that she had not personally and orally approved the agreement. HN3 As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that 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. Tex. R. App. P. 33.1(a)(1)(A). Here, R.R.’s complaints in her motion for new trial differ from her complaint on appeal. Thus, she has waived this issue on appeal. See id.; see also In Interest of M.M.W., 536 S.W.3d 611, 612-13 (Tex. App.—Texarkana 2017, no pet.) (objection at trial that does not comport with complaint on appeal preserves nothing for review).” In re L.W., No. 12-19-00375-CV, 2020 Tex. App. LEXIS 3718, at *5-6 (Tex. App.—Tyler Apr. 30, 2020)

Evidence: “First, Appellant’s hearsay objection in the trial court does not comport with his argument on appeal that the affidavit is conclusory. The differing theories result in waiver of the issue. See Jem Int’l, Inc. v. Warner Props., L.P., No. 07-17-00042-CV, 2018 Tex. App. LEXIS 7764, at *9 (Tex. App.—Amarillo Sept. 24, 2018, no pet.) (mem. op.) (citing Knapp v. Wilson N. Jones Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.)). Second, there is nothing in the record to indicate the trial court ruled on Malcom’s hearsay objection, even implicitly. See Tex. R. App. P. 33.1(a)(2). See also In re R.A.W., 07-13-00316-CV, 2015 Tex. App. LEXIS 3039, at *12 (Tex. App.—Amarillo March [*15] 27, 2015, no pet.) (mem. op.). Without obtaining a ruling, Malcom has again forfeited his complaint.” Malcom v. Cobra Acquisitions, LLC, No. 07-19-00405-CV, 2020 Tex. App. LEXIS 3732, at *14-15 (Tex. App.—Amarillo Apr. 30, 2020)

Be careful not to waive a complaint by not including claims or affirmative defenses in subsequent pleading amendments:

Affirmative Defenses: “Similarly, on summary judgment motions, the trial court dismissed the Namdars’ affirmative defenses. The Namdars, like the complaining party in these three cases, complain on appeal that the trial court erred in dismissing their affirmative defense. The holdings in Randolph, Dolenz, and Radelow mandate the conclusion here. By filing amended pleadings that [*27] excluded their “accord and compromise (novation)” defense, the Namdars waived any error the trial court may have committed in dismissing it. We overrule the Namdars’ fifth issue.” Namdarkhan v. Glast, Phillips & Murray, P.C., No. 05-18-00802-CV, 2020 Tex. App. LEXIS 3499, at *26-27 (Tex. App.—Dallas Apr. 24, 2020)

Finally, always make sure to preserve your complaint by raising it in the trial court.

I hope this helps.  Y’all stay safe and well.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, April 25, 2020

April 25, 2020

Dear All:

I hope all of you remain safe and well.  We have quite a few cases dealing with error preservation this week.

Table of Contents

The Supreme Court weighed in on error preservation this week, in a kind of pedestrian way

Appraisal Clauses

Lack of subject matter jurisdiction-one category of which is the failure to exhaust administrative remedies– may first be raised on appeal
Your complaint must be timely

Hearing

You have to get a ruling on your complaint–which doubles as a way to confirm you presented your complaint to the trial court

Amended Pleading
Assigned Judge
Attorney Disqualification
Continuance
Dual Proceedings

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

Jury Charge

The Blurbs

The Supreme Court weighed in on error preservation this week, in a kind of pedestrian way:

Appraisal Clauses: “TopDog also contends unilateral appraisal clauses are illusory and thus unenforceable. TopDog did not raise this argument until its motion for rehearing in the trial court and did not pursue it in the court of appeals, nor did the court of appeals address it. We therefore do not consider it, see Tex. R. App. P. 33.1, though the parties are free to brief the issue further on remand.” Biasatti v. GuideOne Nat’l Ins. Co., No. 18-0911, 63 Tex. Sup. Ct. J. 780 n.3, 2020 Tex. LEXIS 319, at *5 (Apr. 17, 2020)

Lack of subject matter jurisdiction–one category of which is the failure to exhaust administrative remedies– may first be raised on appeal:

Exhaustion of Administrative Remedies: “In her first issue, the Chief Appraiser asserts that the trial court lacked subject—matter jurisdiction over Wilson’s lawsuit because he did not exhaust his administrative remedies. n. 2 n. 2 Wilson notes that this issue was not a basis for appellant’s plea to the jurisdiction in the trial court. This issue, however, was raised during the hearing on the plea to the jurisdiction and the trial court’s order stated that it considered the plea to the jurisdiction, the response, “the pleadings of the parties in this case, the briefs and arguments of the parties, and applicable constitutional, statutory, and case authorities . . . .” (emphasis added). See B.C. v. Steak N Shake Operations, Inc., No. 17-1008, 2020 Tex. LEXIS 254, 2020 WL 1482586, at *4 (Tex. March 27, 2020). In addition, subject-matter jurisdiction is an issue that may be raised for the first time on appeal and it may not be waived by the parties. See Texas Air Control Bd., 852 S.W.2d at 445.” Curtis v. Wilson, No. 05-19-00761-CV, 2020 Tex. App. LEXIS 3312, at *3 n.2 (Tex. App.—Dallas Apr. 20, 2020)

Your complaint must be timely:

Hearing: “ Finally, because Mother has not presented authority or argument demonstrating that [*36] the court abused its discretion because it considered the Second SAPCR Order on submission without an oral hearing, or that she raised a timely objection to that process, she has not shown a right to reversal on that ground. See Tex. R. App. P. 33.1, 38.1(i). Mother contends that the trial court “refused to hear evidence on [her] objections,” but the reporter’s record pages cited do not support her assertion. At the hearing, Mother’s counsel informed the trial court that Mother disputed some portions of Father’s proposed final order, but Mother did not bring to the court’s attention the specific disputes she raises here.” In the Interest of M.E.H., No. 14-18-00281-CV, 2020 Tex. App. LEXIS 3467, at *35-36 (Tex. App.—Houston [14th Dist.] Apr. 23, 2020)

You have to get a ruling on your complaint–which doubles as a way to confirm you presented your complaint to the trial court:

Amended Pleading: “In arguing that the trial court failed to consider its defenses in determining the trial plan for the class action, Mosaic fails to mention that it did not amend its pleading to add those defenses until three days before the certification hearing and months after the pleading deadline had passed. Mosaic did not seek leave to amend its pleadings or [*13] otherwise inform the trial court that its trial plan should address those defenses. Mosaic cites to B.C. v. Steak N Shake Operations, No. 17-008, 2020 Tex. LEXIS 254, 2020 WL 1482586 (Tex. Mar. 27, 2020), to assert that we should presume the trial court had the late-filed amended pleading before it but erroneously failed to address the proposed defenses in the class-certification order. See 2020 Tex. LEXIS 254, [WL] at *3 (trial court’s recital in summary judgment that it considered “evidence and arguments of counsel,” without limitation, affirmatively indicated that trial court considered late-filed response and the evidence attached to it). On the contrary, the absence of language in the order addressing the proposed defenses, the pleading’s filing so close to the class-certification hearing date, and Mosaic’s failure to secure leave to file its pleading or even raise its proposed defenses at the hearing all indicate that they were not before the trial court when it signed the order and that Mosaic waived the opportunity to obtain a ruling from the trial court before it filed this interlocutory appeal. As these defenses were not properly presented to the trial court for consideration before its ruling, we do not address them, and their absence from the class-certification order does not constitute an abuse of discretion. [*14] See Tex. R. App. P. 33.1(a).” Mosaic Baybrook One, L.P. v. Cessor, No. 01-18-01057-CV, 2020 Tex. App. LEXIS 3427, at *12-14 (Tex. App.—Houston [1st Dist.] Apr. 23, 2020)

Assigned Judge: “Winegardner next complains [*9] that Judge Brancheau, as an assigned judge, should not have heard both the motion to dismiss and his appeal from justice court in the forcible detainer case. Winegardner does not direct us to, nor do we find, a location in the record indicating he presented this complaint to the administrative judge and obtained an adverse ruling or the administrative judge refused to rule on the complaint and Winegardner objected to the refusal. Error preservation for appellate review requires the complaining party to properly object and obtain an adverse ruling on the record or object to the trial court’s refusal to rule on the objection. Mut. First, LLC, Series 77 v. Butler, No. 05-15-00578-CV, 2016 Tex. App. LEXIS 7665, at *4 (Tex. App.—Dallas July 19, 2016, no pet.) (mem. op.); see Tex. R. App. P. 33.1(a)(1),(2). Because Winegardner did not preserve the complaint he now assigns as error on appeal, nothing is presented for appellate review. Winegardner’s third issue is overruled.” Winegardner v. Hughes, Nos. 07-18-00434-CV, 07-19-00283-CV, 2020 Tex. App. LEXIS 3485, at *8-9 (Tex. App.—Amarillo Apr. 23, 2020)

Attorney Disqualification: “Winegardner next argues the trial court erred by failing to disqualify Hughes’s attorney in the probate case and the appeal from justice court because that attorney is alleged to have a conflict of interest. We are not shown by Winegardner, nor do we find, any location in the record where he presented his attorney-disqualification complaint to the trial court, presented any evidence, or obtained an adverse ruling or a refusal to rule. Tex. R. App. P. 33.1(a)(1),(2). Winegardner’s fifth issue is overruled.” Winegardner v. Hughes, Nos. 07-18-00434-CV, 07-19-00283-CV, 2020 Tex. App. LEXIS 3485, at *10 (Tex. App.—Amarillo Apr. 23, 2020)

Continuance: “Here, while Hood did file a motion for continuance of the summary judgment proceeding, he did not set the motion for a hearing, for submission, or otherwise bring the motion to the trial court’s attention. There is also no indication in the record that Hood objected to the trial court’s failure to rule on his motion for continuance. As a result, we conclude Hood failed to preserve error, if any, on this issue. We overrule Hood’s first issue on appeal.” Hood v. Hanna & Hanna, Inc., No. 14-18-00557-CV, 2020 Tex. App. LEXIS 3472, at *5 (Tex. App.—Houston [14th Dist.] Apr. 23, 2020)

Dual Proceedings: “Through this issue, Winegardner complains that it is “wasteful” to have two legal proceedings regarding Viner’s estate. This issue appears to conflict with Winegardner’s third issue wherein he complains that Judge Brancheau should not have been permitted to hear both matters. Nevertheless, the record does not indicate that Winegardner presented any motion to consolidate the two cases to the trial court, obtained an adverse ruling or a refusal to rule, or that he was harmed by participating in two proceedings rather than one. Because Winegardner did not preserve this complaint for appellate [*11] review, it is overruled. Tex. R. App. P. 33.1(a)(1),(2), 44.1.” Winegardner v. Hughes, Nos. 07-18-00434-CV, 07-19-00283-CV, 2020 Tex. App. LEXIS 3485, at *10-11 (Tex. App.—Amarillo Apr. 23, 2020)

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

Jury Charge: “Cindy argues on appeal that the instruction given to the jury contained a “misleading oversimplification of the procedural history of the case” and caused her unfair prejudice. She further argues that the Probate Court did not have jurisdiction to consider the Trust during the will contest. Cindy, however, did not object on those grounds to this instruction before the charge was submitted to the jury. Cindy’s only objection to Question No. 15 was [*17] that there was no evidence to support submission of the question to the jury.

Failure to timely object to error in a jury charge constitutes a waiver of that error. Tex. R. Civ. P. 272. “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex. R. Civ. P. 274; see Burbage v. Burbage, 447 S.W.3d 249, 255-58 (Tex. 2014) (holding party waives any objection to jury charge by failing to raise specific objection to proposed submission). Therefore, Cindy waived any error in the instruction given to the jury. We overrule Cindy’s sixth issue.” Harrell v. Stovall, No. 14-18-00991-CV, 2020 Tex. App. LEXIS 3332, at *16-17 (Tex. App.—Houston [14th Dist.] Apr. 21, 2020)

There were also a collection of cases in which parties failed to raise their complaints in the trial court.

Y’all take good care.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, April 19, 2020

April 19, 2020

Hey Buckaroos.  I hope all goes well, and this finds you and yours safe and healthy.

I don’t have much to report this week–the courts seem to still remain busy churning out opinions, but not many involved error preservation issues (save for those in which the complaint was not raised at all in the trial court).

Table of Contents

On an evidentiary complaint, we are reminded that our complaint must be timely

On matters involving discovery questions and a habeas corpus, we are reminded that we  have to get a ruling on our complaint.

The Blurbs

Your complaint must be timely:

Evidence: “As a pragmatic matter, insofar as the basis of relators’ objection was [*71] their inability to make objections during the hearing, we conclude that relators had more than sufficient time to file objections to the plaintiffs’ evidence that was attached to their motion to strike. The plaintiffs’ motion to strike was filed on November 9, 2018, the hearing on sanctions began on November 26, 2018, and the trial court stated it was taking judicial notice on November 30, 2018. Essentially, the relators’ objections were not timely. See Tex. R. App. P. 33.1(a).” In re Sw. Pub. Serv. Co., No. 13-19-00111-CV, 2020 Tex. App. LEXIS 3212, at *70-71 (Tex. App.—Corpus Christi Apr. 16, 2020)

You have to get a ruling on your complaint:

Discovery: “In his second issue, Husband complains that the trial court deprived him of discovery, which he sought to obtain through a motion for mediation. This issue has not been preserved for appellate review because Husband did not set his motion for a ruling, nor has he shown that the trial court refused to rule on the motion. See Tex. R. App. P. 33.1.” Teamer v. Martin, No. 14-19-00017-CV, 2020 Tex. App. LEXIS 3175, at *3 (Tex. App.—Houston [14th Dist.] Apr. 16, 2020)

Habeas Corpus: “On October 15, 2019, between the first and second days of trial, Robert filed a pro se “Motion for Recusal” of the trial judge, alleging the trial judge is related by affinity or consanguinity with an unidentified complaining witness or interested party. In the affidavit supporting the motion to recuse, Robert also alleges the grounds for recusal are that “I am being bullied and made to do as this judge [*10] wants of me” and “[t]his judge will not allow me to proceed or represent myself.”  “A motion to recuse . . . must not be filed after the tenth day before the date set for trial or other hearing unless, before that day, the movant neither knew nor reasonably should have known: (i) that the judge whose recusal is sought would preside at the trial or hearing; or (ii) that the ground stated in the motion existed.” Tex. R. Civ. P. 18a(b)(1). Robert’s motion demonstrates that before he filed the motion to recuse, Robert knew the trial judge would preside at trial and that the alleged grounds for recusal existed. Accordingly, because Robert’s motion to recuse does not comply with Rule 18a, he has waived the right to complain on appeal that the trial court did not take action upon the motion.” In the Interest of K.E.R., No. 04-19-00808-CV, 2020 Tex. App. LEXIS 3115, at *9 (Tex. App.—San Antonio Apr. 15, 2020)

All for now.  Y’all take good care.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, April 6, 2020

April 5, 2020

Dear All:

I hope everyone is doing well and staying safe.  The courts have certainly stayed busy over the last week or so, as this Table of Contents reveals:

Table of Contents

The Supreme Court weighed in on when a legal sufficiency complaint would preserve a complaint that a hearing commissioner relied on the wrong standard to review a board’s decision

We have a case which held that a party did not waive the right to a jury trial, but the opinion’s real value lies in the extensive discussion of the two lines of cases concerning jury trial waiver.  That discussion is too long to include here

We also have a case that emphasizes the need for a written order concerning an objection to summary judgment evidence, even if the trial court orally “sustain[s your] objection and [strikes] the report from the summary judgment evidence.”

We also have one of those rare cases in which the Court confirmed that an attorney had made an evidentiary objection in such a fashion and at such a time that it was sufficient to make the trial court aware of the complaint, and where the court of appeals reversed the trial court’s judgment based on an evidentiary objection

One case held that a party preserved a complaint about the economic loss doctrine

Your complaint must be timely

Contract

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

Jury Findings

You have to comply with other pertinent rules

Evidence

The Blurbs

The Supreme Court weighed in on when a legal sufficiency complaint would preserve a complaint that a hearing commissioner relied on the wrong standard to review a board’s decision:

Legal Sufficiency: “In this Court, the district and the Commissioner contend that the evidence supports the board’s decision. In addition, as a threshold matter, they contend that Riou failed to challenge the application of a good cause per se exception at the local level, and thus she failed to preserve her complaint for judicial review.

We hold that Riou preserved her complaint. Riou challenged the sufficiency of the evidence supporting good cause to end her contract before the school board and the Commissioner. Riou’s argument that the Commissioner excused this lack of evidence by relying on an improper “per se” standard [*4] falls within this challenge.
. . . .
Riou acknowledges that she “did not expressly specify that the good cause per se standard was the wrong legal standard” before the school board. But she maintains she nonetheless “argued against the sufficiency of the evidence used to support the [hearing examiner’s] recommendation.” And, “she has continuously argued that [the district] failed to meet [*19] its burden of proof to terminate her continuing contract.”

The district and the Commissioner characterize Riou’s argument regarding the “good cause per se” exception as an unraised issue. But this argument supports Riou’s larger position that the Commissioner’s decision lacks substantial evidence—a position she has maintained at every stage. Riou argues that the board’s decision lacks evidence to support it under the correct legal standard, using the proper statutory definition. While section 21.301(c) confines the Commissioner’s review to the “local record,” implementation of a per se standard is in the local record in this case; the examiner relied on it to find good cause.

Riou’s consistent position is that the district lacked good cause to end her contract, and that the board’s decision is unsupported by the evidence. That argument fairly includes the examiner’s application of an exception that relieved the district from its statutory burden to show that Riou failed to meet professional standards “generally recognized and applied in similarly situated school districts.” Riou argued extensively at the school board meeting that the district failed to carry its burden to show good cause, a position [*20] she maintained on appeal to the Commissioner. Because her challenge to a “good cause per se” exception falls within the scope of her challenge to the sufficiency of the evidence, we agree with the court of appeals that Riou preserved her challenge to the examiner’s use of “good cause per se” in ruling in favor of the district.” N. E. Indep. Sch. Dist. v. Riou, No. 18-0986, 63 Tex. Sup. Ct. J. 661, 2020 Tex. LEXIS 257, at *3-4, 18-20 (Mar. 27, 2020).

While I’ve omitted the footnotes from the foregoing discussion, I do think it worth mentioning that the Supreme Court did point out that “while we do not consider unraised issues, ‘parties are free to construct new arguments in support of issues properly before the Court,’” quoting its opinion in Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764, n. 4 (Tex. 2014).

Here is a case which held that a party did not waive the right to a jury trial, but its real value lies in the extensive discussion of the two lines of cases concerning jury trial waiver. That discussion is too long to include here:

Jury Trial: “Here, consistent with McKern and Coleman, J.S.C.’s counsel expressed the intention to rely on T.M.’s jury demand, the trial court struck the demand, and counsel objected to the trial court’s striking of the jury demand. Thus, he obtained an adverse ruling from the trial court on the jury demand on which he was entitled to rely. See McKern, 675 S.W.2d at 223-24; Coleman, 608 S.W.2d at 346-47; Rhyne, 925 S.W.2d at 666. The adverse ruling removed the possibility of a jury trial and left J.S.C. with no choice but to proceed with the [*25] bench trial. See E.E., 2020 Tex. App. LEXIS 1713, 2020 WL 962400, at *5. Although J.S.C. did not further object on the day of the bench trial, the record also does not show that he otherwise knowingly waived his right to a jury trial. See Brubaker, 2019 Tex. App. LEXIS 10062, 2019 WL 6205518, at *3. Accordingly, we conclude that J.S.C. did not waive his right to a jury trial by participating in the bench trial.” In the Interest of J.M., No. 12-19-00353-CV, 2020 Tex. App. LEXIS 2666, at *24-25 (Tex. App.—Tyler Mar. 31, 2020)

Here’s one that emphasizes the need for a written order concerning an objection to summary judgment evidence, even if the trial court orally “sustain[s your] objection and [strikes] the report from the summary judgment evidence.” I could get into a discussion here about whether the Texarkana Court should have relied on Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017), instead of Seim and whether Seim at least impliedly approved an oral ruling. But the point here is: get a written ruling on your objections to summary judgment evidence, especially if the trial court sustains those objections:

Summary Judgment: “Even if a trial [*19] court sustains a party’s objection to an opponent’s summary-judgment evidence, the objected-to evidence remains a part of the summary-judgment proof unless the trial court’s order is reduced to writing, signed by the trial court, and entered of record.  See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) . . . .  Here, even though the trial court granted Altech’s objection to Pleasant Grove’s G-Max report, the court’s order was not reduced to writing, signed, and entered of record. Accordingly, the report remains a part of the summary-judgment proof. See Seim, 551 S.W.3d at 166. The results of the report indicate that the field’s individual and average G-Max ratings exceeded those required by the specifications, which creates a dispute regarding a material fact. Therefore, the trial court erred in granting Altech’s no-evidence and traditional motions for summary judgment as to the G-Max testing. Accordingly, we reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.” Pleasant Grove Indep. Sch. Dist. v. FieldTurf USA, Inc., No. 06-19-00022-CV, 2020 Tex. App. LEXIS 2778, at *18-19 (Tex. App.—Texarkana Apr. 3, 2020)

Here is one of those rare cases in which the court confirmed that an attorney had made an objection in such a fashion and at such a time that it was sufficient to make the trial court aware of the complaint, and where the court of appeals reversed the trial court’s judgment based on an evidentiary objection:

Evidence: “ For appellant’s objection to have been sufficient, it must have been sufficiently specific “to make the trial court aware of the complaint.” TEX. R. APP. P. 33.1(a)(1)(A). During the discussion of appellant’s motion in limine, the prosecutor said the report would be offered as a business record, and appellant’s counsel said the report was prepared in anticipation of litigation. Even though the admissibility [*12] of the report was not the precise matter before the trial court when appellant made the objection, it was relevant to the discussion of the motion in limine. It appears from the record that appellant made his objection to the exhibit a short time later. Appellant’s objection renewing his previous objection should have been close enough in time for the trial court to be aware that appellant was objecting to the admission of the report as a business record on the ground that it had been prepared in anticipation of litigation. Accordingly, we conclude this objection was preserved for appellate review.” In re Commitment of Mumford, No. 05-19-00186-CV, 2020 Tex. App. LEXIS 2836, at *11-12 (Tex. App.—Dallas Mar. 31, 2020)

Here is one in which a party preserved a complaint about the economic loss doctrine :

Economic Loss Doctrine: “Dixie cites Equistar Chems. L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) to argue that Riverdale waived the economic loss rule by not pleading it as an affirmative defense or objecting to the charge. We disagree because that rule is not an affirmative defense and Riverdale (twice) opposed Dixie’s effort to obtain a conversion judgment because of the economic loss rule.

First, the economic loss rule is not an affirmative defense. Id.; see also 64 Baylor L. Rev. 204, 208 (2012) (the economic loss rule is not an affirmative defense that must be pled but instead refers to what is to be considered as the proper measure of damages in a case to which it applies).

Second, Riverdale opposed Dixie’s post-remand motion for judgment based on conversion by arguing that the economic loss rule prevented that tort recovery.

Accordingly, Riverdale preserved its argument that the economic loss rule precludes a Dixie judgment based on conversion (and its attendant potential ability to also [*28] recover the punitive damages that the jury found). See Tex. R. App. P. 33.1.” Dixie Carpet Installations, Inc. v. Residences at Riverdale, LP, No. 05-18-01479-CV, 2020 Tex. App. LEXIS 2734, at *27-28 (Tex. App.—Dallas Apr. 1, 2020)

Your complaint must be timely:

Contract: “When a trial court [*10] denies a motion for summary judgment and the case is tried on the merits, the order denying the summary judgment cannot be reviewed on appeal. United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The party’s remedy is to assign error to the trial court’s judgment ultimately rendered following the trial on the merits. Id. To preserve error for a “matter of law” challenge to the trial court’s judgment following a jury trial, an appellant must raise the issue through one of the following means: (1) a motion for directed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial. See, e.g., Ginn v. Pierce, No. 14-17-00742-CV, 2019 Tex. App. LEXIS 8459, 2019 WL 4511328, at *1 (Tex. App.—Houston [14th Dist.] Sept. 19, 2019, no pet. h.); Tasdemiroglu, 25 S.W.3d at 916.

Although Interoil raised its contractual-interpretation issues in a motion for summary judgment, Interoil did not request a directed verdict at trial, nor did it raise this issue in its motion for judgment notwithstanding the verdict. Interoil did not object to the submission of Question No. 1, move to disregard the jury’s answer, or move for a new trial. Accordingly, Interoil failed to preserve error for its “matter of law” issues regarding whether the Schahin transactions were “CFI [*11] Sales” under the 2009 services agreement.” C&F Int’l, Inc. v. Interoil Servs., LLC, No. 14-18-00698-CV, 2020 Tex. App. LEXIS 2751, at *9 (Tex. App.—Houston [14th Dist.] Apr. 2, 2020)

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

Jury Findings: “As explained, we do not consider unpreserved issues on appeal. See Fed. Deposit Ins. Corp., 361 S.W.3d at 604; see also Allright, Inc., 735 S.W.2d at 240 (“A point of error not preserved, is not before the appellate court for review.”). And to preserve a complaint for appellate review, the complaining party must present the complaint to the trial court by timely request, objection, or motion. TEX. R. APP. P. 33.1(a). A party’s argument on appeal must comport with the complaint made in the trial court. See Hussain, 485 S.W.3d at 174. The complaint raised in the trial court must state 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); see also Hussain, 485 S.W.3d at 174; Chappell Hill Bank, 38 S.W.3d at 246-47.

Although appellants did, in their second motion to disregard jury findings and for JNOV, assert that the trial court should disregard the jury’s findings on its counterclaim against Ashby LLP for breach of fiduciary [*50] duty and enter judgment in their favor on the counterclaim, appellants did not argue that Ashby LLP breached its fiduciary duty as a matter of law by not making disclosures to the bankruptcy court required by 11 U.S.C. § 329 and Federal Rule of Bankruptcy Procedure 2016(b) and by misleading the bankruptcy court “to believe it was no longer seeking a 40% contingency (worth $ 480,000) in connection with the controversy.” Instead, appellants argued that the trial court should disregard the jury’s findings and enter judgment in their favor on their breach-of-fiduciary-duty counterclaim because the evidence conclusively established that Ashby LLP obtained a benefit from Amerjin and Ashby LLP breached its fiduciary duty to Amerjin by misrepresenting Contract 4, by not informing Amerjin and Zhu that Ashby LLP would “be paid by the hour,” yet also “intend[ing] to take a contingency fee,” engaging in self-dealing, taking advantage of appellants’ trust, and not disclosing “conflicts of interest.”” Amerjin Co., LLC v. Ashby LLP, No. 01-18-00231-CV, 2020 Tex. App. LEXIS 2651, at *49-50 (Tex. App.—Houston [1st Dist.] Mar. 31, 2020)

You have to comply with other pertinent rules:

Evidence: “Here, Mother’s counsel requested that she be allowed “to present new testimony and new evidence” at the de novo hearing. The trial court denied that request. Mother, however, did not submit an offer of proof or make a bill of exception with respect to the excluded evidence, and we [*22] are left to guess as to its substance and what it might prove. Thus, Mother has waived her third issue by failing to preserve in the record the substance of the evidence that the trial court excluded. See Tex. R. Evid. 103; Tex. R. App. P. 33.1(a)(1)(B), 33.2; Dillard, 2019 Tex. App. LEXIS 9039, 2019 WL 5089759, at *2. We overrule Mother’s third issue.” In the Interest of J.V., No. 02-19-00392-CV, 2020 Tex. App. LEXIS 2678, at *21-22 (Tex. App.—Fort Worth Apr. 1, 2020)

We then had several opinions in which the parties failed to raise their complaints in the trial court.

I hope this helps.  Stay safe and well.

Yours, Steve Hayes.

shayes@stevehayeslaw.com; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, Week Ended 3/28/20

April 2, 2020

Dear All:

Sorry folks.  Did not get last week’s stuff posted until now.

Table of Contents

The Dallas Court reaffirmed that one does not have to raise a complaint in the trial court in order to complain on appeal about the failure of a temporary injunction order to comply with Rule 683

A complaint about ripeness is jurisdictional, and may first be asserted on appeal

You have to comply with other pertinent rules

Affirmative Defense (Anti-Assignment Clause)

The Blurbs

The Dallas Court reaffirmed that one does not have to raise a complaint in the trial court in order to complain on appeal about the failure of a temporary injunction order to comply with Rule 683:

Temporary Injunction Order: “In reaching this conclusion, we necessarily reject Lake Point’s argument that appellants waived their complaint by failing to raise it in the trial court. n. 1 Long-standing precedent of this Court and the supreme court establishes that the requirements of Rule 683 are mandatory and a temporary injunction that fails to comply with those requirements is void and must be dissolved. See InterFirst, 715 S.W.2d at 641; Reiss, 2019 Tex. App. LEXIS 3202, 2019 WL 1760360, at *2; Indep. Capital Mgmt., 261 S.W.3d at 795. Specifically, this and other Courts have held that a temporary injunction order that fails to comply with Rule 683 is void and for this reason a party cannot waive the error by agreeing to the form or substance of the order. See Indep. Capital Mgmt., 261 S.W.3d at 795 n.1; Conlin v. Haun, 419 S.W.3d 682, 686 – 87 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing In re Garza, 126 S.W.3d 268, 271 (Tex. App.—San Antonio 2003, no pet.)); Big D Properties, Inc. v. Foster, 2 S.W.3d 21, 23 (Tex. App.—Fort Worth 1999, no pet.) (holding Rule 683’s requirements may not be waived). Further, this Court can declare a temporary judgment void even if the parties have not raised the issue. See City of Sherman v. Eiras, 157 S.W.3d 931, 931 (Tex. App.—Dallas 2005, no pet.); Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex. Civ. App.—San Antonio 1981, no writ).

n. 1 Lake Point relies on Texas Tech University Health Sciences Center v. Rao, 105 S.W.3d 763, 767 – 68 (Tex. App.—Amarillo 2003, pet. dism’d) and Emerson v. Fires Out, Inc., 735 S.W.2d 492 (Tex. App.—Austin 1987, no writ) for this minority position. See also Hoist Liftruck Mfg., Inc. v. Carruth-Doggett, Inc., 485 S.W.3d 120, 124 – 25 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (Frost, J., concurring) (discussing split of authority among courts of appeal and arguing for a preservation requirement).”

Massenburg v. Lake Point Advisory Grp., LLC, No. 05-19-00808-CV, 2020 Tex. App. LEXIS 2575, at *3 (Tex. App.—Dallas Mar. 26, 2020)

A complaint about ripeness is jurisdictional, and may first be asserted on appeal:

Ripeness: “On appeal, the Hickersons argue that the Rices failed to preserve their advisory opinion complaint for appellate review. But the Rices challenge a portion of the trial court’s judgment for ripeness, and ripeness may be raised for the first time on appeal. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (“Ripeness is an element of subject matter jurisdiction.”); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993) (“Subject matter jurisdiction is an issue that may be raised for the first time on appeal . . . .”).” Rice v. Hickerson, No. 04-18-00694-CV, 2020 Tex. App. LEXIS 2461, at *19 n.1 (Tex. App.—San Antonio Mar. 25, 2020)

You have to comply with other pertinent rules:

Affirmative Defense (Anti-Assignment Clause): “An anti-assignment clause [*19] is considered an affirmative defense and, like other affirmative defenses, it can be waived. See Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 719, 722 (Tex. App.—Dallas 2004, no pet.). Moreover, affirmative defenses are waived if they are not pleaded or tried by consent. Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied); see also Tex. R. Civ. P. 94; Land Title Co. of Dall., Inc. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex. 1980) (Rule 94 requires all matters constituting avoidance or affirmative defense be pleaded to give opposing party notice of defensive issues to be tried; failure to do so results in waiver of affirmative defense); Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 816 (Tex. App.—Dallas 2003, pet. denied) (issues raised by builder on appeal in breach of contract action were waived where builder failed to plead issues as affirmative defenses and failed to request proper jury questions); Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (party waives affirmative defense if not pleaded or tried by consent). Mann did not plead the anti-assignment clause as an affirmative defense or raise it in her answer, and she does not argue the issue was tried by consent. Nor is there any indication in the record that she brought the matter to the trial court’s attention. Accordingly, to the extent Mann is relying on the anti-assignment provision as a matter of avoidance or an affirmative defense, she waived the issue.” Mann v. Propst, No. 05-19-00432-CV, 2020 Tex. App. LEXIS 2581, at *18-19 (Tex. App.—Dallas Mar. 26, 2020)

There were also several cases which dealt with situations where parties failed to raise their complaints in the trial court.

Y’all stay safe and well.

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

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, March 22, 2020

March 22, 2020

Dear Friends:

I hope everyone is doing well, and taking care of themselves.  The courts of appeals continue to do crank out the opinions, and we have several error preservation decisions this week to show for their good efforts.

Table of Contents

There are a couple of jury charge cases in which the courts held that a party properly preserved its complaint

You have to bring your complaint to the trial court’s attention, and get a ruling on it–and getting an express ruling is the best way to show you did bring it to the trial court’s attention

Continuance

Your complaint must be timely

Conflicting Jury Answers

You have to comply with other pertinent rules

Evidence (Settlement/Bill of Review)
Pleadings

The Blurbs

Here are a couple of jury charge cases in which the courts held that a party properly preserved its complaint :

Jury Charge: “Anderson asserts that Durant failed to raise this argument in the trial court and has changed his argument from that raised on original submission. In the trial court, Durant objected to the misrepresentation definition “with respect to statements of opinion . . . because there’s no pleadings or evidence to support a statements of opinion theory in this case.” On original submission to this court, Durant argued that the definition of misrepresentation improperly “instruct[ed] the jury to consider an invalid theory or basis of fraud” by including misrepresentations based on statements of opinion. Although Durant on remand has honed his argument and cited additional authorities, he sufficiently raised the definitional issue to the trial court and in this court. See Tex. R. App. P. 33.1(a), 38.9; Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 782 (Tex. 2019) (per curiam) (“Cantu’s trial-court arguments expressed the basic rationale for the objection without citing the case law. This does not prevent him from relying on the case law on appeal.”).” Durant v. Anderson, No. 02-14-00283-CV, 2020 Tex. App. LEXIS 2319, at *17 n.6 (Tex. App.—Fort Worth Mar. 19, 2020)

Jury Charge: “Additionally, Colbert properly preserved error regarding the trial court’s wrongful refusal to include the ordinary negligence question in the jury charge. Colbert objected during the charge conference that the court’s submission failed to include an ordinary negligence question. Colbert also submitted an ordinary negligence question in “substantially correct wording” as required by Rule 278. See Tex. R. Civ. P. 278. Specifically, Colbert’s proposed question was “Did the negligence, if any, of those named below proximately cause the occurrence in question?” See State Bar of Tex., Texas Pattern Jury Charges—General Negligence PJC 4.1 (2018).” Colbert v. Smith, No. 11-18-00063-CV, 2020 Tex. App. LEXIS 2314, at *14 (Tex. App.—Eastland Mar. 19, 2020)

You have to bring your complaint to the trial court’s attention, and get a ruling on it–and getting an express ruling is the best way to show you did bring it to the trial court’s attention:

Continuance: “Approximately a month after the hearing, on September 18, 2017, Wulchin Land filed a joint response to Forehand and Schneider’s motions for summary judgment, attaching 521 pages of evidence. Later that same day, Wulchin Land filed a verified “Motion for Continuance on No-Evidence Motion for Summary Judgment of Schneider & McWilliams and Thomas Forehand as to Damages,” mirroring the arguments raised in its prior motion to continue Sartori’s no-evidence motion. There is no indication in the record that this motion was set for a hearing. Twenty-four [*26] days later, on October 12, 2017, the trial court granted Forehand and Schneider’s summary judgment motions by submission.

In order to preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely motion with sufficient specificity and the trial court expressly or implicitly ruled on the motion or refused to rule on the motion, and the complaining party objected to the refusal. TEX. R. APP. P. 33.1(a). Wulchin Land argues that both motions were implicitly overruled when the trial court granted Sartori, Schneider, and Forehand’s motions for summary judgment. See Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 114-15 (Tex. App.—Waco 1999, no pet.) (holding that trial court implicitly overruled motion for continuance filed two days before summary judgment hearing by granting summary judgment); but see Hightower v. Baylor Univ. Med. Ctr., 251 S.W.3d 218, 224-25 (Tex. App.—Dallas 2008, pet. struck) (holding that appellant did not preserve error because he failed to obtain an explicit ruling on motion for continuance); Dart v. Balaam, 953 S.W.2d 478, 483 (Tex. App.—Fort Worth 1997, no pet.) (same).

Merely filing a motion is not sufficient to preserve an error; the movant must bring the motion to the trial court’s attention, thereby giving the court an opportunity to rule on the motion. In re Purported Lien or Claim Against Collin Cty. Clerk Taylor, 219 S.W.3d 620, 623 (Tex. App.—Dallas 2007, pet. denied); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston [1st Dist.] 1994, writ denied). It is self-evident that a trial court cannot abuse its discretion if it was not called upon to exercise its discretion [*27] in the first instance.

We disagree that Wulchin Land’s motions to continue were implicitly overruled in this case because there is no indication from the record that the trial court was aware of their existence. See In re Purported Lien, 219 S.W.3d at 623; In re Davidson, 153 S.W.3d at 491; Sebek, 892 S.W.2d at 49. It is always incumbent upon a movant to bring its motions to the trial court’s attention or risk waiving error, but that is especially true in a case like this with numerous parties and filings.” Wulchin Land, L.L.C. v. Ellis, No. 13-18-00156-CV, 2020 Tex. App. LEXIS 2275, at *25-27 (Tex. App.—Corpus Christi Mar. 19, 2020)

Your complaint must be timely:

Conflicting Jury Answers: “ Generally, parties must allow a trial court the opportunity to address whether a jury has returned a verdict that contains conflicting answers to the issues before the party may complain about the alleged conflict in its appeal. But Sims waited to raise the alleged conflict until he filed a post-verdict motion, and thereby waived his right to complain about any alleged conflict in his appeal. Sims failed to preserve his issue three complaints for appellate review. Issue three is overruled.” Critical Path Res., Inc. v. Huntsman Int’l, LLC, No. 09-17-00497-CV, 2020 Tex. App. LEXIS 2310, at *44 (Tex. App.—Beaumont Mar. 19, 2020)

NOTE: In USAA Lloyd’s Co. v. Menchaca, 545 S.W.3d 479, 526 (2018), a plurality dissenting opinion from the Texas Supreme Court held that the “absence of . . . an objection [to conflicting jury answers before the trial court dismisses the jury] . . . should not prohibit [an appellate court] from reaching the issue of irreconcilable conflicts in jury findings.” The portion of the Court’s opinion dealing with that issue, which drew the support of fewer justices than the dissenting plurality, held that parties had to complain about conflicting jury answers before the jury was dismissed. It is very confusing–though the Court’s main opinion contains a really full discussion of lots of courts of appeals decisions supporting its position. You will have to read Menchaca very closely to determine the extent to which you feel comfortable not objecting to conflicting jury answers before the jury is excused. I would not feel comfortable doing so.

You have to comply with other pertinent rules:

Evidence (Settlement/Bill of Review): “Appellate courts review complaints about rulings [*47] excluding evidence using an abuse of discretion standard of review. On appeal, the court reviewing the trial court’s ruling must decide whether the error “probably caused the rendition of an improper judgment[.]” Turning to the ruling on excluding the testimony about Murphree’s settlement, we cannot say the fact Murphree and Huntsman settled gave Murphree any interest in Huntsman’s remaining claims. Without a bill, Sims cannot show the testimony was even relevant to his claim that Murphree was biased in Huntsman’s favor given whatever might be in the settlement’s terms. Generally, evidence about the fact parties have settled claims is not relevant to any of the other claims in a trial. Here, to preserve error, Sims’s bill should have included a copy of the settlement agreement and the questions and Murphree’s answers about the settlement. With a bill, we could determine whether the evidence was relevant and whether the trial court abused its discretion by excluding it in the trial. On this record, we cannot say the trial court abused its discretion by refusing to allow Murphree to be questioned about the settlement. We reach the same conclusion on the evidence Sims wanted to [*48] offer about the circumstances of other employees involved in other insider deals. We conclude Sims failed to file a bill of review to show what the evidence he wanted to offer would have shown. Because the arguments Sims makes to support his fourth issue lack merit, the issue is overruled.” Critical Path Res., Inc. v. Huntsman Int’l, LLC, No. 09-17-00497-CV, 2020 Tex. App. LEXIS 2310, at *46-48 (Tex. App.-Beaumont Mar. 19, 2020)

Pleadings: “Because Mother did not file written special exceptions alleging a defect in the Department’s pleadings, she has waived her complaint about the sufficiency of the Department’s pleadings. See Tex. R. Civ. P. 90 (requiring a party to specially except to pleading defects before the judgment is signed); Tex. R. App. P. 33.1(a) (providing complaints not timely raised in the trial court are not preserved for appellate review).” In the Interest of N.A.V., No. 04-19-00646-CV, 2020 Tex. App. LEXIS 2204, at *9 n.3 (Tex. App.—San Antonio Mar. 17, 2020)

There were then some cases which held that parties failed to preserve error because they did not raise their complaints in the trial court.

All for now.  Everyone stay safe and stay well.

Yours,

Steve Hayes

shayes@stevehayeslaw.com; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, March 16, 2020

March 16, 2020

Dear All:

I think I’m almost back on track. I hope this finds all of you in fine fettle and plugging along.

Table of Contents

Two Supreme Court Error Preservation Cases

The Court held that the objection at trial about a judge testifying was sufficiently specific, when it “expressed the basic rationale” for the complaint, even if it did not cite the pertinent case

The Supreme Court held that a party preserved a complaint it made in connection with a motion to designate a potentially responsible third party

The complaint you assert on appeal must be the complaint you made at trial

Presence at trial

The Blurbs

Two Supreme Court Error Preservation Cases:

Here is one from the Supreme Court a few months back that I think I missed–I cannot find it in my spreadsheet, and I thank Lisa Hobbs for mentioning it in the most recent Supreme Court Update webcast–the Court held that the objection at trial was sufficiently specific, when it “expressed the basic rationale” for the complaint, even if it did not cite the pertinent case:

Judge (testimony): “In this Court, the CLD contends that Joachim does not require exclusion of Judge Isgur’s testimony. At the outset, the [*782] CLD argues that Cantu did not specifically invoke Joachim in the trial court and so failed to preserve the argument. But Cantu “was not required . . . at trial to rely on precisely the same case law . . . [the court of appeals found] persuasive.” [**5] Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018). Among his laundry list of objections to Judge Isgur’s testimony, Cantu complained that it was improper expert testimony by a judge, that “the jury is supposed to hear what happened,” and, most importantly, that it is “not for the judge to tell them how to vote.” This line of argument is very similar to the concerns about judicial testimony animating Joachim. See 815 S.W.2d at 237. Cantu’s trial-court arguments expressed the basic rationale for the objection without citing the case law. This does not prevent him from relying on the case law on appeal. “We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.” Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014).” Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 781-82 (Tex. 2019)

The Supreme Court held that a party preserved a complaint it made in connection with a motion to designate a potentially responsible third party. However, the holding is not terribly illuminating, since the Court failed to discuss what the party said in the trial court to preserve the complaint, and failed to invoke Rule 33.1 in its discussion:

Potentially Responsible Third Party: “Finally, we reject Covarrubias’s arguments that (1) Mobile Mini failed to preserve its claim that Nolana’s summary judgment was granted only on limitations grounds by failing to make that argument in the trial court and (2) mandamus relief should be denied because Mobile Mini waited three months after the trial court denied its motion to designate to seek mandamus relief in the court of appeals. A three-month delay does not preclude mandamus relief under the circumstances presented, and Mobile Mini’s response to Covarrubias’s and Nolana’s objections adequately preserved the arguments presented here.” In re Mobile Mini, Inc., No. 18-1200, 2020 Tex. LEXIS 186, at *13 (Mar. 13, 2020)

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

Presence at trial: “Finally, even though J.B. argues that the trial court erred in waiving his appearance at the hearing on the State’s petition because Texas Rule of Civil Procedure 267 provides that “in a civil trial, a party is entitled to be present during the presentation of evidence,” we note that J.B.’s counsel did not assert in the trial court that J.B.’s presence in the courtroom was required under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 267 (upon request of either party, witnesses [*9] must be sworn and removed from courtroom to place where they cannot hear testimony of any other witness, but party, “who is a natural person,” may not be excluded). Instead, J.B.’s counsel requested that J.B. be present during the hearing on the State’s petition “based on his right to confront the witnesses against him” “under the [f]ederal and [s]tate constitutions.” And J.B.’s counsel requested an “opportunity to call [J.B.] as a witness” based on his “Article I, [s]ection 10[] . . . right to be heard.” See U.S. Const. amend. VI; Tex. Const. art. I, § 10. . . . An objection stating one legal basis may not be used to support a different legal theory on appeal. . . . Because J.B.’s counsel did not assert in the trial court that J.B.’s presence in the courtroom was required under Texas Rule of Civil Procedure 267, we hold that he has not preserved his argument for appellate review. See Tex. R. App. P. 33.1(a); cf. In re K.C., 563 S.W.3d at 398 (rejecting appellant’s argument based on Texas Rule of Civil Procedure 267 on merits).” In the Interest of J.B., No. 01-19-00037-CV, 2020 Tex. App. LEXIS 2155, at *8 (Tex. App.—Houston [1st Dist.] Mar. 12, 2020)

And there was a collection of cases in which parties failed to preserve error because they did not raise their complaint in the trial court.

I hope this helps. Y’all take care out there.

Yours,

Steve Hayes

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

Error Preservation in Texas Civil Cases, March 9, 2020

March 9, 2020

Dear All:

I have gotten way behind, owing to an oral argument and some deadlines. I’ve nearly caught up on the stuff over the last month, but I thought I would go ahead an profile this week’s stuff just to get back in the routine.

Table of Contents

One case dealt with preserving a complaint about the right to a jury trial, and apparently there are two lines of cases on the subject

Legal and factual sufficiency complaints as to a bench trial can be raised for the first time on appeal

Temporary Injunction

One case held that a party did not waive its complaint about an order compelling arbitration by complying with that order

Your complaint must be timely

Notice

You have to obtain a ruling on your objection-and one case held that a notation on a docket sheet may not do the trick

Constitution
Discovery
Evidence

The Blurbs

This is a longer blurb than usual, but it has to do with preserving a complaint about the right to a jury trial, and apparently there are two lines of cases on the subject:

Jury trial: “We must also address the Department’s assertion that the mother waived her right to a jury trial. The Department contends that to avoid waiver, the mother was required to either file a new jury demand after the case was extended or to renew her demand immediately before the bench trial began. There is a line of cases holding that “when a party has perfected its right to a jury trial in accordance with Rule 216 but the trial court proceeds to trial without a jury, the party must, to preserve error, either object on the record to the trial court’s action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial.” Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assur. Co., 875 S.W.2d 385, 387-88 (Tex. App.—Dallas 1993, no writ); see In re K.M.H., 181 S.W.3d 1, 8 (Tex. App.—Houston [14th Dist.] 2005, no pet.); In re D.R., 177 S.W.3d 574, 580 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); In re A.M., 936 S.W.2d 59, 61 (Tex. App.—San Antonio 1996, no writ); see also Gammill v. Texas Dep’t of Family & Protective Servs., No. 03-08-00140-CV, 2009 Tex. App. LEXIS 3800, at *10 (Tex. App.—Austin May 22, 2009, pet. denied) (mem. op.). “This is because ‘the right [to a jury trial] in a civil case is not self-executing: to invoke and perfect the right to a jury trial in a civil case a party must first comply with the requirements of rule 216’; once perfected, ‘the right to a jury trial still may be waived expressly or by a party’s failure to act.'” Vardilos v. Vardilos, 219 S.W.3d 920, 923 (Tex. App.—Dallas 2007, no pet.) (quoting Sunwest Reliance, 875 S.W.2d at 387-88).

However, [*12] there are other cases holding that to avoid waiver, a party must simply obtain an adverse ruling from the trial court on her jury demand. See McKern v. McCann, 675 S.W.2d 222, 223-24 (Tex. App.—Austin 1984, writ ref’d); Coleman v. Sadler, 608 S.W.2d 344, 346-47 (Tex. App.—Amarillo 1980, no writ). This is because “[t]he trial court’s adverse ruling on the jury demand remove[s] the jury trial alternative and, in effect,” leaves the party “without a conscious choice between a jury and non-jury trial.” Coleman, 608 S.W.2d at 346; see also Trapnell v. Sysco Food Servs., 850 S.W.2d 529, 547 (Tex. App.—Corpus Christi 1992) (“Merely proceeding to trial in a case in which a trial by jury is unavailable, without more, does not establish waiver of that right.”), aff’d, 890 S.W.2d 796 (Tex. 1994). Cf. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (“Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances.”); Sun Expl. & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987) (“Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.”).

Under either line of cases, the mother preserved her right to a jury trial. Consistent with the Sunwest Reliance line of cases, the record reflects that the mother took “affirmative action” to preserve her right to a jury trial—she objected to the associate judge’s denial of her jury demand by requesting and receiving a de novo hearing on the matter from the district court. [*13] Consistent with McKern and Coleman, the mother obtained an adverse ruling from the district court on her jury demand following the de novo hearing. The adverse ruling removed the possibility of a jury trial and thus left the mother with no choice but to proceed with the bench trial as required by the district court. On this record, we cannot conclude that the mother waived her right to a jury trial by participating in the bench trial.” E. E. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00741-CV, 2020 Tex. App. LEXIS 1713, at *11-13 (Tex. App.—Austin Feb. 28, 2020)

Legal and factual sufficiency complaints as to a bench trial can be raised for the first time on appeal:

Temporary Injunction: “The exchanges reproduced reflect every instance where Vincent’s attorney mentioned the injunction. We do not construe any of Vincent’s attorney’s comments to the district court as an objection. After trial, but before the district court signed the final decree, Vincent requested findings of fact and conclusions of law “with respect to the injunctive relief ordered by the Court,” but he did not file a motion for new trial or any other written motion complaining that the district court abused its discretion. However, HN1 a complaint about the sufficiency of the evidence in a nonjury case may be raised for the first time on appeal, Tex. R. App. P. 33.1(d), and the issue in question was decided by the trial court and not the jury. We will therefore address Vincent’s issue, that “no evidence” supported the injunction, as challenging the legal sufficiency of the evidence underlying the district court’s decision to grant the injunction [*7] regarding” a woman and her daughter. Jackson v. Jackson, No. 03-19-00014-CV, 2020 Tex. App. LEXIS 1960, at *6-7 (Tex. App.-Austin Mar. 6, 2020).

Here is an interesting case holding that a party did not waive its complaint about an order compelling arbitration by complying with that order:

Arbitration: “Gonzalez further argues that PCB waived its complaint because it cooperated with the trial court and opposing counsel in the arbitration process. However, PCB had already filed a motion to compel arbitration in accordance with AAA rules; the trial court held a contested hearing regarding the matter; and the trial court ruled adversely to PCB’s motion and position at the hearing. HN3 Thus, PCB’s attempt to comply with the trial court’s order without agreeing to the ruling itself is not an express or implied waiver. See In re Lennar Homes of Texas Sales & Mktg., Ltd., 2015 Tex. App. LEXIS 7275, 2015 WL 4366046, at *2 (holding that a motion to appoint an AAA mediator, a contested hearing on that motion, an adverse ruling, and subsequent compliance with the trial court’s ruling is not an express or implied waiver). Therefore, we hold that PCB did not waive its complaint.” PlainsCapital Bank v. Gonzalez, No. 13-18-00272-CV, 2020 Tex. App. LEXIS 1902, at *5 (Tex. App.-Corpus Christi Mar. 5, 2020)

Your complaint must be timely:

Notice: “While a Rule 91a motion to dismiss must be filed twenty-one days before the hearing, the nonmovant is entitled to only fourteen days’ notice of the hearing. Tex. R. Civ. P. 91a.3(b), 91a.6. Appellants received more than fourteen days’ notice of the hearing and did not complain about the late filing until their motion to set aside filed after the hearing. To preserve a complaint about lack of notice, a party must bring the lack of adequate notice to the trial court’s attention at the hearing and object to the hearing going forward or move for a continuance. Tex. R. App. P. 33.1(a);” Envision Realty Grp., LLC v. Chen, No. 05-18-00613-CV, 2020 Tex. App. LEXIS 1959, at *7 (Tex. App.-Dallas Mar. 5, 2020),

You have to obtain a ruling on your objection-and one case held that a notation on a docket sheet may not do the trick:

Constitution: “In a multifarious issue one, Mother contends that she was denied due process and equal protection because (1) the presiding and associate judges should have been recused, (2) the ad litem for the children should have been disqualified [*58] and removed, (3) the Department violated provisions of the Indian Child Welfare Act, and (4) she was not permitted an opportunity to visit her children because the Department did not develop an appropriate visitation plan.
However, to preserve a complaint for appellate review, the record must show that the complaint was made to the trial court, and that the trial court either ruled on the complaint or refused to rule and the complaining party objected to the trial court’s refusal to rule. See Tex. R. App. P. 33.1. If a party fails to do this, error is not preserved, and the complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991). The record in this case does not show any rulings on these complaints; thus, the issues are waived. n. 9 n. 9 To the extent that Mother claims that the docket sheet shows that motions raising these issues were denied, we note that “a docket entry may not take the place of an order or judgment.” Pickell v. Guar. Nat. Life Ins. Co., 917 S.W.2d 439, 441 (Tex. App.-Houston [14th Dist.] 1996, no writ). Likewise, a docket sheet is not part of the record on appeal and cannot be relied on to preserve error. Mason v. Randall’s Food Markets, Inc., 01-01-00199-CV, 2001 Tex. App. LEXIS 7380, 2001 WL 1344355, at *1 (Tex. App.-Houston [1st Dist.] Nov. 1, 2001, no pet.).” In the Interest of A.A.H, Nos. 01-19-00612-CV, 01-19-00748-CV, 2020 Tex. App. LEXIS 1915, at *57-58 (Tex. App.-Houston [1st Dist.] Mar. 5, 2020)

Discovery: “Harrington asserts that one or more of the Palms Parties did not provide timely verifications of the second and third sets of interrogatories he propounded and that the trial court ignored his “motion to compel interrogatories.” HN3 To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial [*10] court of the complaint. Tex. R. App. P. 33.1(a). The failure to obtain an adverse ruling in the trial court operates as a waiver of review of the alleged error on appeal. Neely v. Comm’n for Lawyer Discipline, 302 S.W.3d 331, 351 (Tex. App.-Houston [14th Dist.] 2009, pet. denied). The record contains no ruling on Harrington’s motion to compel. Without an adverse ruling, Harrington did not preserve his complaint for appellate review.” Harrington v. Hawthorne-Midway Palms, LLC, No. 14-18-00460-CV, 2020 Tex. App. LEXIS 1954, at *9 (Tex. App.-Houston [14th Dist.] Mar. 5, 2020),

Evidence: “To preserve a complaint for appellate review: (1) a party must complain to the trial court by way of a timely request, objection, or motion; and (2) the trial court must rule or refuse to rule on the request, objection, or motion. Tex. R. App. P. 33.1(a). In a summary judgment proceeding, a party asserting objections should obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver. Cty. of El Paso v. Baker, 579 S.W.3d 686, 694 (Tex. App.-El Paso 2019, no pet.). This same concept has been applied to pleas to the jurisdiction. Id. The record shows no ruling on any of Appellants’ objections.” Preston v. M1 Support Servs., L.P., No. 02-18-00348-CV, 2020 Tex. App. LEXIS 1922, at *39 (Tex. App.-Fort Worth Mar. 5, 2020

As always, there were a bunch of cases in which parties failed to raise their complaint in the trial court.

That’s all for now.  Y’all have a good week.

Yours, Steve Hayes

shayes@stevehayeslaw.com; www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, January 27, 2020

January 26, 2020

Dear All:

I skipped a week, and it appears the bottom fell out. But there is a lot of stuff here to contemplate:

Table of Contents

At least in a divorce proceeding, the lack of pleadings to support portions of a default judgment is a complaint which one can first raise on appeal

Default Judgment/Pleadings

Here are a couple of complaints which were preserved–and the court’s reasoning instructs us on what to do and why

Discovery
Discovery

The following lengthy discussions of why objections to a jury charge did not preserve error is worth reading, if for no other reason to remind us of the challenge we face in preserving a complaint about the charge

Jury Charge

Jury Charge

Keep in mind–a motion which is not brought to the trial court’s attention will not preserve the complaint raised by the motion. Getting a ruling on the motion shows you brought it to the trial court’s attention

Continuance/Jury Trial
DTPA

You have to comply with the pertinent rules

Findings

You have to get a ruling on your complaints

Evidence
Proof

The Blurbs

At least in a divorce the lack of pleadings to support portions of a default judgment is a complaint which one can first raise on appeal:

Default Judgment/Pleadings: “As an initial matter, Benavides argues Garcia waived her first and third issues by failing to raise them in her motion for new trial. A default divorce decree must be supported by the pleadings. Lynch v. Lynch, 540 S.W.3d 107, 134-35 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citing Tex. R. Civ. P. 301; Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). “‘This rule is a specific application of the more general principle that a party may not be granted relief in the absence of pleadings to support that relief, unless the request for relief is tried by consent—a situation that cannot occur in the context of a default judgment.'” Id. (quoting In re Marriage of Day, 497 S.W.3d 87, 90 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)). Therefore, a challenge to the sufficiency of the pleadings may be raised for the first time on appeal. See Day, 497 S.W.3d at 90.

Further, although no evidence is generally required to support a default judgment, the general rule is limited in the divorce context by section 6.701 of the Family Code, which provides: “In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer.” Tex. Fam. Code Ann. § 6.701; accord Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.—Dallas 2004, no pet.); Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2001, no pet.). In a divorce case, a petitioner is required to prove up the material allegations in the petition in order to obtain a default divorce, and a respondent may raise evidentiary challenges for the first time [*4] on appeal. Agraz, 143 S.W.3d at 552; Osteen, 38 S.W.3d at 814.

Here, because Garcia’s challenges to the default decree may be raised for the first time on appeal, we conclude she has not waived them and turn to the merits.” Garcia v. Benavides, No. 04-19-00451-CV, 2020 Tex. App. LEXIS 350, at *3-4 (Tex. App.—San Antonio Jan. 15, 2020)

Here are a couple of complaints which were preserved–and the court’s reasoning instructs us on what to do and why:

Discovery: “Real party responds that relators waived their objection [about the overbreadth of the discovery requests] because they did not present it to the trial court and that, in any event, their request did not extend back thirty or more years and was thus not overbroad in time. We disagree. Real party first sent a subpoena to Longmont, which timely served written objections to each of real party’s discovery requests, including an objection that the requests were “not limited to . . . any relevant time period.” Thus, real party was on notice that at least one relator objected to the time period of the requests. Moreover, relators’ motion for protection and to quash—which attached Longmont’s written objections as an exhibit—continued the objection by heavily relying on the timeline of the allegations made in the underlying lawsuit to argue that real party’s requests were overbroad and irrelevant. See Nat’l Lloyds Ins. Co., 507 S.W.3d at 223 (finding no waiver where party resisting discovery “objected from the earliest instance,” clearly stated objections and extent it refused request, and continued to object). Thus, relators preserved this issue for our review. Tex. R. App. P. 33.1(a).” In re Stagner, No. 01-18-00758-CV, 2020 Tex. App. LEXIS 630, at *10 n.6 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020)

Discovery: “Real party’s mandamus response argues that relators waived this objection [that their income tax returns were not relevant nor material], but we disagree. Relators’ motion for protection and to quash argued that real party’s requests for tax returns are “wholly irrelevant to this lawsuit” and objected to the confidential nature of the documents that real party sought, including tax documents. Thus, relators did not waive their objection. SeeTex. R. App. P., 33.1(a).” In re Stagner, No. 01-18-00758-CV, 2020 Tex. App. LEXIS 630, at *15 n.7 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020)

The following lengthy discussions of why objections to a jury charge did not preserve error is worth reading, if for no other reason to remind us of the challenge we face in preserving a complaint about the charge:

Jury Charge: “Our decision point in this case, however, turns on the preservation of error. The Trust advances several arguments on why the charge is erroneous. It also argues in its brief that the error was reasonably calculated to and probably did cause rendition of an improper judgment. Burnet Holdings does not respond to those arguments. Instead, it pitches its response solely on the claim that the Trust waived any error by consenting to the charge at an informal charge conference and failing to make a sufficient objection at the formal charge conference. To explain those claims, we need to add some detail into how the charge was put together.

 Rule 271 provides that the court will prepare the charge. Tex.R.Civ.P. 271. The trial court here apparently had the assistance of a court staff attorney who worked with the parties in formulating the [*13] charge. During trial, that staff attorney circulated a draft charge. At the time the charge was circulated, Question Seven asked, “Did any of the following parties intentionally create a public nuisance?” (emphasis added), which was followed by a definition of the term “intentionality.” The prefatory instructions also contained a definition for “public nuisance” that described “conduct unreasonably interfer[ing] with a public right or public interest.” That draft charge also defined the term “unreasonable interference.” The trial court’s staff attorney emailed the draft with an explanatory note stating that a “statutory public nuisance” claim required the intentionality requirement to, (1) comport with the statutory language, and (2) for it to serve as a predicate for the conspiracy claim that the Trust was also pursuing. The Trust’s counsel made non-substantive edits to this portion of the draft charge and replied back to the staff counsel that his analysis “sounds good.”

The trial court’s final charge, as we note above, differed from this earlier draft. The final charge omitted any mention of a public nuisance, dropped the definition of public nuisance and unreasonable interference, [*14] and instead asked about a common nuisance. At the final charge conference, the Trust counsel made this objection to the charge:

[TRUST’S COUNSEL]: And Plaintiff objects to the language in Question No. 7. The language, “Did any of the following parties intentionally maintain a common nuisance,” should be, “Did any of the following parties maintain, own, use, or is a party to the use, of a common nuisance,” because it’s confusing.

THE COURT: Overruled.

Texas Rules of Civil Procedure 274 provides, “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.” Tex.R.Civ.P. 274. And under Rule 274, “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Id. The rule creates a two-pronged test: objections to the charge must specify the error and the legal basis of the objection. Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 892 (Tex.App.–El Paso 2005, pet. denied), citing Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). Our Court has written that Rule 274 is strictly construed and embodies a “rigorous standard for sufficiency of charge objections.” Abell, 157 S.W.3d at 892.

Burnet Holdings first urges that opposing counsel’s email note that an earlier draft “sounds good” signaled its desire to include the intentionality verbiage [*15] and instruction. HN6 Under what is termed the invited error doctrine, a party cannot complain on appeal about an action that the trial court took at the request of the complaining party. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); N.E. Texas Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (Tex.[Comm’n Op.] 1942) (” It is an elementary principle supported by many authorities that a litigant cannot ask something of a court and then complain that the court committed error in giving it to him.”). We decline to apply that doctrine here because the draft charge that was circulated, and commented on, was different from the final version. The first draft charge asked about “public nuisance” and provided a definition for the same, while the final charge asked about “common nuisance” with its own set of definitions. The invited error doctrine applies when a party “unequivocally take[s] a position in the trial court that is clearly adverse to its position on appeal.” Tittizer, 171 S.W.3d at 862, citing Am. Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 589 (Tex.1975) (“One of the requirements for application of the doctrine of judicial estoppel is that the statement must be deliberate, clear, and unequivocal.”). Given the change in the charge language, and vagaries in the terse email reply of “sounds good,” we decline to find estoppel in that fact alone.

Burnet Holdings’ second argument is that the objection [*16] made at the charge stage fails to comply with Rule 274 because it never told the trial court why the charge was wrong. HN7 And significantly, the Texas Supreme Court in Castleberry v. Branscum specifically held that an objection stating that an instruction “may confuse the jury” or “prejudice the defendant” was too general because it did not explain “why the instruction [was] legally incorrect[,]” or “how it would confuse the jury or prejudice the defendants.” 721 S.W.2d at 277. Similarly, the Trust here objected that a different Question Seven should be used because otherwise the question is “confusing.” That objection, however, never explains why the question as worded is confusing, nor does it explain how the addition of the intentionality requirement adds an element not required by Chapter 125, or conflicts with the “knowingly” standard already found in the instructions. We conclude that the bare objection that the charge as given was “confusing” did not adequately preserve error. Castleberry, 721 S.W.2d at 277; see also Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014) (objection that did not explain Casteel problem with submission failed to preserve that complaint).

The Trust responds, however, that its oral recitation of a form of the question (dictated into the record) should have [*17] alerted the trial court to the problem with the charge. HN8 And indeed, we generally require a timely objection “stat[ing] 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[.]” (emphasis added). Tex.R.App.P. 33.1. In effect, the Trust argues that the alternate oral submission implicitly demonstrates the trial court’s awareness of the complaint now urged on appeal. The alternate submission did not contain the word “intentional” nor a definition of that term. Had the trial court placed a transcript of the alternate submission side by side with the given charge, that distinction might have become apparent. But the alternate submission differed in another significant way with the charge as given. Question Seven asked whether any defendant “maintain[ed] a common nuisance.” The alternate submission added other ways in which the defendants might have been connected to a common nuisance: “Did any of the following parties maintain, own, use, or is a party to the use, of a common nuisance[?]” (emphasis added). It is just as likely that the trial court [*18] might have perceived this added verbiage as the gist of the objection.

Certainly, the trial court’s appreciation of a party’s position, and rejection of it in a timely fashion, is the cornerstone of preservation. State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Yet we cannot ignore the realities of trial practice.  As the court wrote in Cruz v. Andrews Restoration, Inc.:

Trial courts lack the time and the means to scour every word, phrase, and omission in a charge that is created in the heat of trial in a compressed period of time. A proposed charge, whether drafted by a party or by the court, may misalign the parties; misstate the burden of proof; leave out essential elements; or omit a defense, cause of action, or (as here) a line for attorney’s fees. Our procedural rules require the lawyers to tell the court about such errors before the charge is formally submitted to a jury. Tex. R. Civ. P. 272. Failing to do so squanders judicial resources, decreases the accuracy of trial court judgments and wastes time the judge, jurors, lawyers, and parties have devoted to the case.  364 S.W.3d 817, 829-30 (Tex. 2012). Consequently, the court in Cruz concluded that the mere filing of a pretrial charge that included a subpart of a question that was omitted from the final charge did not sufficiently [*19] alert the trial court to the issue. Id. at 831. By the same token, the oral dictation of the text of a question at the same time charge objections were made did not alert the trial court to the problem with its existing question without something more. Had counsel explained why its suggested charge more closely followed the statute, we might view the situation differently. But leaving the task of discerning the differences between the two forms of the questions to the trial court simply asks too much.

The Trust directs us to Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. 2003) as support for the adequacy of its objection. The critical issue in that case was whether a farm was run a certain way for at least one year before suit was filed–if it was, the suit was barred, and if not, a repose statute did not apply. Rather than inserting the one-year date, the trial court used a date that was off by more than ten years. The aggrieved party had objected to the charge’s wording, but only by a “naked” objection to the date used. Id. at 38. The party had also requested a different question that used the correct date but was otherwise defective in its wording. The court of appeals found a waiver. The Texas Supreme Court disagreed, noting that the complaining party [*20] had “specifically objected to the date submission.” Id. at 39. We nonetheless find the case distinguishable. The party explicitly objected to the key term in the question as given (the date) and then called the court’s attention to its requested question that used the correct date. Given the importance of the date to the statute of repose defense, there is little doubt the trial court would have been aware of the significance of the date. Here by contrast, there was no explicit reference to the inclusion of the objectionable term (the intentionality element) and the trial court was left to discern that on his own.

The Texas Supreme Court reminds us that “[o]ur procedural rules are technical, but not trivial.” Burbage, 447 S.W.3d at 258. While we construe those rules liberally so that the right to appeal is not lost unnecessarily, [*21] “we cannot make assumptions” when an objection fails to explain the nature of the error. Id. “Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.” Id. Because the objection here was not sufficient to apprise the trial court of the issue now claimed as error, we overrule Issue One.” Meyers v. 8007 Burnet Holdings, LLC, No. 08-19-00108-CV, 2020 Tex. App. LEXIS 560, at *12-21 (Tex. App.—El Paso Jan. 22, 2020)

Jury Charge: “Given the foregoing factual scenario, the trial court submitted to the jury Questions 7 and 9. Again, through the former, it asked: “Did [Meat] fail to comply with their obligations to [USA] arising out of the cattle transactions described below?” The “cattle transactions described below” were those “Cattle specifically described in signed promissory notes[.]” Through Question 9, the jury was asked a like question, that being whether “[Meat] fail[ed] to comply [*12] with their obligations to [USA] arising out of the cattle transactions described below.” This time, though, the “cattle transactions described below” were the “Cattle not specifically described in signed promissory notes[.]”

To reiterate, we must afford a jury question a reasonable, as opposed to technical, interpretation from the viewpoint of a juror untrained in the law but exercising common sense. And, the reasonable, commonsensical jury having seen the nature of the business relationship between USA and Meat and the issues being tried would lead us to construe both Questions 7 and 9 as encompassing what we call the oral umbrella agreement and the “obligations” of Meat under it. Those “obligations” consisted of the general, nonspecific, overall promise to pay USA for the expenses of acquiring and rearing the cattle. Indeed, the jury instruction accompanying Question 8 indicates as much.

Question 8 directed the jury to calculate the damages recoverable when Meat failed to abide by its “obligations.” Those damages were limited to the “difference, if any, between the sales proceeds received by [USA] when the cattle were sold and USA’s purchase, feeding and care costs, and USA’s cost [*13] to finance these items.”

Moreover, Meat did not object to Question 9 before the trial court submitted it to the jury. Though the same is not true regarding Question 7, the objections uttered were limited. Meat simply asserted that the question 1) “should be submitted in broad form”; 2) “constitutes a comment on the weight of the evidence in connection with Defendant’s theory that Plaintiffs could not rely on the projections provided to them by Defendant for the purchase of the individual lots of cattle”; and, 3) “it will nudge the jury in the direction of the Defendant’s theory.” As can be seen, nothing was said about the question being nonspecific, omitting elements, being immaterial, referring to an agreement other than one founded on the promissory notes, referring to a nonexistent agreement, or the like. So, its current objections about the questions’ wording and their failure to specify the “obligations” at issue were waived. See Tex. R. Civ. P. 274 (stating that a party objecting to a charge must specify the objectionable matter and the grounds of the objection and that any complaint concerning any defect, omission, or fault in the pleading is waived unless specifically included in the objection); [*14] Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014) (stating the same).

And, because each question apparently related to the obligations imposed via the general, nonspecific oral umbrella agreement as opposed to the individual promissory notes, it matters not that Question 7 said nothing about the elements underlying a cause of action to recover upon a note. See TrueStar Petrol. Corp. v. Eagle Oil & Gas Co., 323 S.W.3d 316, 319 (Tex. App.—Dallas 2010, no pet.) (stating that,  to prevail, a plaintiff must prove the note in question, that the defendant signed it, that the plaintiff is the legal owner and holder of the note, and that a certain balance is due and owing). So, the contention about the omission of those elements is inconsequential.

As for the contention that the answer to Question 7 was immaterial because it posed a question of law, we note the following. Meat said nothing of that when given the opportunity to object during the charge conference. Thus, it too was waived. See Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 627-28 (Tex. App.—Dallas 2004, pet. denied) (wherein the appellant argued that “the trial court erred in submitting the question to the jury because whether a contract has been breached is a question of law” and holding the Mitchells waived the complaint by failing to assert it before the charge was read to the jury); accord Ibarra v. City of Laredo, No. 04-10-00665-CV, 2012 Tex. App. LEXIS 5741, at *5-6 (Tex. App.—San Antonio July 18, 2012, no pet.) (mem. op.) (holding the [*15] same).

We further note that both the existence of a contract and its breach are questions of fact, unless undisputed. See Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010) (per curiam); Austin Tapas, L.P. v. Performance Food Grp., Inc., No. 03-18-00680-CV, 2019 Tex. App. LEXIS 6589, at *5 (Tex. App.—Austin Aug. 1, 2019, no pet.) (mem. op.); Berg v. Wilson, 353 S.W.3d 166, 174 (Tex. App.—Texarkana 2011, pet. denied). Meat did not concede the existence of the umbrella agreement and the “obligations” arising under it to pay for the lots of cattle and expenses related to caring for them. Nor did it concede that it breached those obligations. Thus, such topics were questions of fact for the jury to decide, not questions of law for the court.

Regarding Jury Question 9, Meat believed it also to be immaterial and defective for reasons similar to the purported immateriality and defectiveness of Question 7. Yet, those complaints too should be overruled for the very same reasons the complaints about Question 7 were.

Meat also complained here that Question 9 was immaterial because there was “no record evidence of any specific terms of any alleged oral contract.” Admittedly, our perusal of the record uncovered no express contract between it and USA delineating the specific terms of an agreement.  Yet, contracts arise in various ways, one of which is through a course of conduct. See Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex. 1981) (stating that “[e]ven prior to the enactment [*16] of the [Uniform Commercial] Code it was recognized in Texas that a contract could be formed by conduct” and “[s]uch a contract is one implied in fact”). An implied contract arises when the parties’ acts indicate, according to the ordinary course of dealing and common understanding, that there is a mutual intention to contract. Id.; Stewart & Stevenson, LLC v. Galveston Party Boats, Inc., No. 01-09-00030-CV, 2009 Tex. App. LEXIS 8582, at *28 (Tex. App.—Houston [1st Dist.] Nov. 5, 2009, no pet.) (mem. op.). The record at bar contains evidence of 1) Meat repeatedly approaching USA to buy cattle for it; 2) USA buying and raising the cattle; 3) the cattle later being sold; and, 4) USA forwarding the proceeds of the sale to Meat after deducting the costs it incurred in buying and raising the cattle. If nothing else, that is some evidence of an ordinary course of dealing evincing a common understanding and mutual intention to contract. That is, it is some evidence of a contract between the parties arising by implication. It is also some evidence of an agreement by Meat to repay USA for buying, raising, feeding, and selling the lots of cattle it sought. And, not until the cattle market dropped many months after the parties began their business relationship did Meat deign to question the arrangement. So, Meat is mistaken in arguing that Question 9 was [*17] immaterial because there was no record evidence of a contract.

As for Meat’s current complaints about Question 10, we start with the one about it being immaterial because there was no evidence of a contract between the parties. Question 10 tracked the language of Question 8; through it, the jury was asked to determine the sum of money, if any, payable which “would fairly and reasonably compensate [USA] for its damages, if any, that resulted from” Meat’s failure to comply with the “obligations” encompassed within Question 9. And, because there was evidence of a contract between Meat and USA, as we concluded in the immediately preceding paragraph, Question 10 is not immaterial for the reason Meat proffered.

As for the complaint that Question 10 was immaterial because it incorporated the wrong measure of damages, Meat did not complain about the measure used at trial. Thus, it waived the complaint here. Moreover, this complaint, too, is premised on the notion of there being no evidence of a contract between Meat and USA; yet, as previously discussed, the record contains such evidence.

As for the complaint about Question 10 being immaterial because of the supposed “absence of any valid [*18] predicate finding that [Meat] breached the terms of [an] alleged contract with USA,” it is unaccompanied by substantive analysis and, therefore, waived. Anderson v. Safeway Tom Thumb, No. 02-18-00113-CV, 2019 Tex. App. LEXIS 4284, at *7 (Tex. App.—Fort Worth May 23, 2019, pet. denied) (mem. op.) (stating that HN7 “[i]n the absence of appropriate record citations or a substantive analysis, a brief does not present an adequate appellate issue”). Furthermore, the question actually is predicated upon an affirmative answer to Question 9, and the latter encompassed whether Meat failed to perform its “obligations” to USA arising from the cattle transactions. The jury answering Question 9 affirmatively means that the predicate to Question 10 is present. So, we overrule this complaint, too.

As for the contention that no evidence supports the jury’s answer to Question 10, we disagree. A witness for USA testified that $221,823 and change was owed to it; the jury happened to award that exact amount. Furthermore, the multiple components of that sum were explained in USA’s Exhibit 500.

As for the contention that no evidence appears of record indicating that the damages awarded in Question 10 were reasonable and necessary, the complaint is premised on the conclusory argument that, “by [*19] its submission of Question 10, USA is seeking recovery in the nature of ‘remedial damages.'” Why the damages sought were remedial and only remedial went unexplained. Again, Meat merely concluded as much. Thus, the issue was inadequately briefed, and we overrule it. See id.

Regarding the complaints about Question 11, we note the following. They too concern allegations about “compositional problem[s]” akin to Questions 7 and 9 and about which Meat failed to object during the charge conference. Consequently, those “compositional problem[s]” were waived, too. As for the complaint that Question 11 said nothing about the terms of the agreement underlying the corn purchases encompassed by the question, the record contains evidence of Meat simply asking USA, via email, to buy the corn. Other evidence indicates that the corn was to be fed to Meat’s cattle. The rather loose nature of the transactions comports with the overall loose nature of the business relationship (i.e., the buying, feeding, and selling of cattle) in which Meat and USA engaged for some time. Simply put, their continuing course of conduct supplied the evidence Meat now claims was missing.

As for the complaints about Question [*20] 12, we say the following. Meat mistakenly argues that the damages awarded therein were not predicated on a finding of breached contract. The requisite predicate appeared through the answer to Question 11. And, because Meat failed to object to the “compositional problem[s]” in Question 11, it cannot now argue that the answer was insufficient to be the predicate to Question 12. So too do we find evidence of record indicating damages of $284,742, i.e., the amount awarded. USA’s bookkeeper testified to same. Thus, the finding has evidentiary support. Furthermore, USA’s Exhibit 501 itemized the sums comprising the $284,742 sought by and awarded to it, and the itemization included amounts attributable to interest.” L & S Meats, LLC v. USA Feedyard, LP, No. 07-18-00030-CV, 2020 Tex. App. LEXIS 590, at *11-20 (Tex. App.—Amarillo Jan. 22, 2020)

Keep in mind–a motion which is not brought to the trial court’s attention will not preserve the complaint raised by the motion. Getting a ruling on the motion shows you brought it to the trial court’s attention:

Continuance/Jury Trial: “In issue two, Shouldice complains that the trial court erred by not conducting a jury [*9] trial, in granting case-determinative sanctions, and in rendering judgment that she filed her will contest in bad faith. Neither Shouldice nor her attorney appeared when the case was called to trial. The docket sheet indicates an emergency motion for continuance may have been filed before the trial court rendered judgment but the record does not show that an emergency motion for a continuance was brought to the trial court’s attention. HN2 As a prerequisite to complaining about the denial of a motion, the record must show that the motion was brought to the trial court’s attention and that the trial court either denied the motion or refused to rule on the motion and the complaining party objected to the refusal. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.); see also Tex. R. App. P. 33.1(a).” Shouldice v. Van Hamersveld, No. 09-18-00355-CV, 2020 Tex. App. LEXIS 622, at *8-9 (Tex. App.—Beaumont Jan. 23, 2020)

DTPA: “We also reject Sadeghian’s argument that the declaratory relief awarded by the trial court somehow runs afoul of the election of remedies doctrine, both because that argument ignores the DTPA’s plain language, id., and because Sadeghian failed to preserve that issue for our review. See Tex. R. App. P. 33.1(a).” Sadeghian v. Jaco, No. 05-18-00838-CV, 2020 Tex. App. LEXIS 670, at *11 (Tex. App.—Dallas Jan. 23, 2020)

You have to comply with the pertinent rules:

Findings: “To preserve a right to appellate review of a complaint about a trial [*7] court’s failure to provide a party with written findings, the record must show the party requesting the findings both filed a request and then, when the trial court failed to provide them, filed a written reminder notifying the trial court that it had not complied with the party’s request for findings. In her appeal, Spears suggests the law placed a duty on the trial court to remind her that it did not intend to comply with her request. The Rules of Civil Procedure, however, do not place that duty on the trial court. Instead, the Rules burden the party who asked for written findings to notify the trial court, in writing, that the trial court had failed to comply with that party’s request.

Spears did not file the required written notice notifying the trial court that it failed to comply with her request. Consequently, Spears failed to preserve her right to complain about the alleged error in her appeal.” Spears v. Haynes, No. 09-18-00147-CV, 2020 Tex. App. LEXIS 463, at *6-7 (Tex. App.—Beaumont Jan. 16, 2020)

You have to get a ruling on your complaints:

Evidence: “Additionally, because these objections are to form, not substance, Robins was required to preserve them in the trial court. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (holding that objections to affidavit that it (1) stated that facts in affidavit were true instead of stating that facts in expert’s reports were true, (2) lacked notary’s signature, and (3) did not attach reports, were objections to affidavit’s form, rather than substance, and therefore subject to error preservation rule that required trial court’s ruling on objections); see also Tex. R. App. P. 33.1(a)(2)(A) (stating that to preserve error, record must show that trial court ruled on objection or, if it refused to rule, that complaining party objected to refusal to rule). Although Robins did broadly raise his hearsay, “unsworn under penalty of perjury,” and failure to “detail the affiants’ criminal records” objections [*30] in his reply in support of his TCPA motion to dismiss, the record does not reflect that the trial court ruled on the objections. Therefore, Robins failed to preserve them for our review.” Robins v. Clinkenbeard, No. 01-19-00059-CV, 2020 Tex. App. LEXIS 423, at *29-30 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020)

Proof: “Finally, Robins argues that the Clinkenbeards “lack any expert witness testimonial affidavits to purportedly back their allegations of legal malpractice.” Although Robins made this objection to the trial court in his reply brief supporting his TCPA motion to dismiss, the record does not reflect that he obtained a ruling on it. See In the Interest of A.J.H., No. 14-03-01016-CV, 2004 Tex. App. LEXIS 1969, 2004 WL 414093, at *5 n.3 (Tex. App.—Houston [14th Dist.] Mar. 2, 2004, no pet.) (mem. op.) (holding that, HN15 in challenge to sufficiency of evidence based on lack of expert testimony, failure to object to testimony of witnesses on basis that they were not qualified as experts to render their opinions waived complaint on appeal) (citing Tex. R. App. P. 33.1(a)).” Robins v. Clinkenbeard, No. 01-19-00059-CV, 2020 Tex. App. LEXIS 423, at *31 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020)

Then, there was a collection of cases in which parties failed to preserve error by failing to raise their complaints in the trial court.

All for now.  I hope this helps.

Yours, Steve Hayes

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

Error Preservation in Texas Civil Cases, January 11, 2020

January 11, 2020

Dear All:

Hey there, Buckaroos!  Some old, some new, some reminders, as the Table of Contents shows.

Table of Contents

I will let you all figure out the extent to which the courts feel that the Supreme Court has relaxed the error preservation rules as they apply to motions to dismiss under the Texas Citizens Participation Act

TCPA

Your complaint must be timely–and I put this case in because of the warning it provides about segregating attorneys fees in a bench trial, as to which the courts of appeal are all over the lot

Attorneys Fees (segregation)

Your must present your complaint with sufficient specificity, and the complaint you raise on appeal must comport with the complaint you raised at trial.

Evidence

The Blurbs

I will let you all figure out the extent to which the courts feel that the Supreme Court has relaxed the error preservation rules as they apply to motions to dismiss under the Texas Citizens Participation Act:

TCPA: “Our error preservation rules generally require that “[a]s a prerequisite to presenting a complaint for appellate review” a party must make a timely complaint to the trial court that states “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. Appellants point out that Appellees never challenged the existence of an alleged defamatory statement to the trial court [*9] and this failure precludes us from considering the issue further. We might agree, but for the Texas Supreme Court’s decision in Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018). There, the court relaxed the preservation rules for a party asserting a TCPA motion to dismiss, stating that the “[r]ules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.” Id. at 896. In Adams, the movant on a motion to dismiss generally claimed in both the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about “services in the marketplace” which was a subset of “matter[s] of public concern” as previously defined by the TCPA. He had not, however, specifically urged to the trial court that his speech touched upon “community or environmental well-being” which was another subset of matters of public concern, and the court of appeals considered that issue waived. Id. The Texas Supreme Court disagreed, stating that he “was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.” Id. at 896-97, citing Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised [*10] in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”) (emphasis in orig.). The court also placed emphasis on the statutory language of the TCPA that requires that a court “shall consider the pleadings and supporting and opposing affidavits.” (emphasis in orig.). Id. This suggests an independent duty on the court to look beyond the parties’ arguments to the pleadings and affidavits before it, to determine if the predicates for the TCPA are met.” Pacheco v. Rodriguez, No. 08-19-00129-CV, 2020 Tex. App. LEXIS 34, at *8 (Tex. App.—El Paso Jan. 6, 2020)

Your complaint must be timely–and I put this case in because of the warning it provides about segregating attorneys fees in a bench trial, as to which the courts of appeal are all over the lot:

Attorneys Fees (segregation): “Because evidence of unsegregated fees is some evidence of segregated fees, Tony Gullo Motors, 212 S.W.3d at 314, a strong argument can be made that (i) a failure to segregate complaint is essentially a factual sufficiency of the evidence challenge [*34] and thus (ii) no error preservation is necessary in the bench trial context. See Tex. R. App. P. 33.1(d). But we need not decide that question because we recently held in a bench trial appeal that a failure to segregate challenge was preserved by an objection that was made after the court’s ruling awarding fees but before final judgment. Anderton v. Green, 555 S.W.3d 361, 372 n.4 (Tex. App.-Dallas 2018, no pet.). Here, we conclude that appellants satisfied any preservation requirement by pointing out the problem during closing argument and in their post-trial filings.” Guillory v. Dietrich, No. 05-18-00504-CV, 2020 Tex. App. LEXIS 35, at *33-34 (Tex. App.—Dallas Jan. 6, 2020)

Your must present your complaint with sufficient specificity, and the complaint you raise on appeal must comport with the complaint you raised at trial:

Evidence: “Father’s objection at trial to the admission of PX-7 follows:

The—the exhibit that the State would like to offer requires a predicate that has not been laid. It’s hearsay as it stands and the business records affidavit does not cure the hearsay within the document. Specifically, what we’re objecting to is their –the contents of the document, claiming the document is something that’s created in the ordinary course of business with a business of scientific analysis that requires expert testimony. [Father] does not have the ability or the personal knowledge to lay that predicate. They have failed to lay that predicate. They’re asking the court hold them to the admissibility standard under 705(b) case law provided previously to the court under Robinson. We’re objecting to this evidence on all of those basis [*15] [sic].

This objection raised the issues of claimed hearsay in PX-7 and the Department’s failure to “lay a predicate” for the drug test by expert testimony. While his objection referred to Rule of Evidence 705(b), Father did not specifically request a hearing thereunder, and while he referred to Robinson, he did not specify how the exhibit was purportedly deficient and inadmissible, or what predicate an expert was required to lay. In contrast, on appeal Father specifically complains that the exhibit contained no evidence demonstrating that the scientific testing methods used “were properly supervised or maintained” and that an expert witness was required to explain how the “underlying facts and data . . . relate to the relevant time period of the hair follicle.” We conclude that his objection at trial does not comport with the issues he raises on appeal and that he has, accordingly, waived the issues. See Elness Swenson Graham Architects, 520 S.W.3d at 159.” F. C. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00625-CV, 2020 Tex. App. LEXIS 119, at *14-15 (Tex. App.—Austin Jan. 9, 2020).

All for now.  Y’all have a good weekend.

Yours, Steve Hayes

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