February 11, 2018
Hey, folks. I took an unintended absence, so this covers a few weeks.
Keep in mind a couple of things you can raise for the first time on appeal: lack of subject matter jurisdiction, and, in a non-jury trial, a factual insufficiency complaint:
- Factual Sufficiency: “In its brief, the Department argues E.L. failed to preserve his factual sufficiency complaint by failing to file a motion for new trial. However, “[i]n a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d);” In the Interest E.E.L., No. 04-17-00536-CV, 2018 Tex. App. LEXIS 43, at *6 n.1 (App.—San Antonio Jan. 3, 2018)
- Subject Matter Jurisdiction: “Mother does not assert that she raised her jurisdictional complaint in the trial court, and we have not found anything in the record suggesting she did so. But as a general rule “[j]urisdiction may be raised for the first time on appeal and may not be waived by the parties.” Univ. of Houston v. Barth, 313 S.W.3d 817, 818 (Tex. 2010) (per curiam). So we address Mother’s argument.” In the Interest of G.E.D., No. 05-17-00160-CV, 2018 Tex. App. LEXIS 8, at *6 (App.—Dallas Jan. 2, 2018)
Here is a long discourse holding that a motion for summary judgment was sufficiently specific, in the face of numerous arguments why it was not. While long, I think it bears reading:
“In his first issue, Granata contends the trial court erred by granting the motion for summary judgment because the motion [*5] failed to state a ground for summary judgment.”
“When a defendant moves for summary judgment, he must state specific grounds for relief. Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). “The term ‘grounds’ means the reasons that entitle the movant to summary judgment, in other words, ‘why’ the movant should be granted summary judgment.” Garza v. CTX Mortg. Co., L.L.C., 285 S.W.3d 919, 923 (Tex. App.-Dallas 2009, no pet.). If the grounds for summary judgment are not clear, the general rule is that the nonmovant must specially except to preserve error. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 175 (Tex. 1995) (citing McConnell, 858 S.W.2d at 342). However, the nonmovant need not object if the grounds for summary judgment are not expressly presented in the motion itself, rendering the motion insufficient as a matter of law. See McConnell, 858 S.W.2d at 342. Grounds are sufficiently specific if they give “fair notice” to the nonmovant. Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878, 889 (Tex. App.-Dallas 2011, no pet.).”
“Appellees’ motion for summary judgment did not have a section expressly setting forth “summary judgment grounds.” Instead, the “Argument & Authorities” section set forth the reason the trial court should grant the motion for summary judgment: ‘The Court should grant the motion for summary judgment against Mr. Granata because Mr. Granata guaranteed the obligation of Full Spectrum Diagnostics, L.L.C. A default judgment was entered against that company for the promissory note Mr. Granata guaranteed. [*6] Therefore, the Court should grant the summary judgment against Mr. Granata for the same amount as the default judgment.’ The argument set forth the basis for the summary judgment, i.e., that Granata was liable as a guarantor of Full Spectrum’s obligation on the promissory note and that a default judgment had been rendered against Full Spectrum on the promissory note, which established Full Spectrum’s liability on the obligation that Granata had guaranteed. We conclude Granata had fair notice of the ground on which appellees moved for summary judgment.
“Granata also argues the motion did not identify the cause of action upon which judgment is sought. Appellees pleaded one cause of action against Granata: breach of contract for failing to fulfill his guaranty of Full Spectrum’s obligation on the promissory note. Appellees’ motion for summary judgment was clear that was the subject of their suit against Granata.”
“Granata also argues the motion did not “identify how any of the evidence meets or conclusively establishes the required the [sic] elements of a cause of action.” We disagree. The argument, while concise, discusses the evidence (the promissory note including Granata’s guaranty and the [*7] default judgment against Full Spectrum), and the legal consequences (liability for breach of the guaranty) are apparent from the context of the motion.”
“Granata also argues the motion did not “otherwise give the Appellant notice of the basis upon which summary judgment was sought.” The motion sought summary judgment against Granata on one basis-that Granata was liable as guarantor of Full Spectrum’s obligation on the note, which was established by the default judgment. Whether that ground authorized the summary judgment is a different matter not relevant to this issue.
Granata asserts in his reply brief that the motion fails to present a ground for summary judgment because the motion does not identify the elements of the claim on which appellees moved for summary judgment. In support of this argument, Granata relies on ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538 (Tex. 2017), which stated, “A motion for summary judgment must state the specific grounds entitling the movant to judgment, identifying or addressing the cause of action or defense and its elements.” Id. at 545-46. Granata complains that the motion did not identify the cause of action and its elements; however, ExxonMobil is satisfied if the motion addresses the cause of action and its elements. [*8] In this case, where only one cause of action was alleged against Granata, the entire motion addressed the cause of action. To prevail on a motion for summary judgment against the guarantor of a promissory note, the plaintiff must establish (1) the existence and ownership of the guaranty; (2) plaintiff’s performance of the terms of the guaranty; (3) the occurrence of the condition on which liability is based; and (4) the guarantor’s failure or refusal to perform the promise. Vince Poscente Int’l, Inc. v. Compass Bank, 460 S.W.3d 211, 214 (Tex. App.-Dallas 2015, no pet.). Appellees’ motion addressed at least some of these elements. The statement, “Mr. Granata guaranteed the obligation of Full Spectrum Diagnostics, LLC” addresses the existence of the guaranty. The statement, “A default judgment was entered against [Full Spectrum] for the promissory note Mr. Granata guaranteed” addresses the occurrence of the condition on which liability is based, namely, Full Spectrum’s default on the note and Granata’s guaranty of Full Spectrum’s indebtedness on the note. The statement, “No payment has been forthcoming on said promissory note cents [sic] the $50,000 payment” addresses the guarantor’s failure or refusal to perform the promise. Therefore, the motion complies with the requirement [*9] that it address the cause of action and its elements.
We conclude the motion for summary judgment presented the ground on which appellees sought summary judgment. We overrule Granata’s first issue.” Granata v. Kroese, No. 05-17-00118-CV, 2018 Tex. App. LEXIS 272, at *4-9 (App.-Dallas Jan. 10, 2018)
This is another pretty long discourse, but I think this one also worth reading because it provides a lesson in how to preserve a complaint when the trial judge refuses to rule as to a constitutional complaint:
Right to confrontation:
“We first determine whether the alleged Sixth Amendment confrontation-clause error has been preserved. To preserve a complaint for appellate review, the record must show that a defendant made a timely and specific objection to the trial court in compliance with the rules of evidence or the rules of appellate procedure, that the objection was sufficiently specific to make the trial court aware of the complaint unless the specific grounds were apparent from the context, and that the [*21] trial court ruled on the objection, either expressly or implicitly, or refused to rule and the complaining party objected. Tex. R. App. P. 33.1(a)(1)(A), (a)(2)(A-B); . . . .Failure to properly preserve error for appellate review may also waive constitutional error. . . . In making the objection, terms of legal art are not required, but a litigant should at least “let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). An objection stating one legal basis may not be used to support a different legal theory on appeal. . . .The two-fold purpose of requiring a specific objection in the trial court is: (1) to inform the trial judge of the basis of the objection and give him the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to the complaint. . . .
We initially note that the juvenile filed a motion “pursuant to Article 38.071 (Section 6) of the Texas Code of Criminal Procedure and the Sixth and Fourteenth Amendments to the United States Constitution as well as Article I Sections 10 and 19 of the Texas Constitution” that the child victim be required to testify. During the outcry hearing, and [*22] as a component of his post-testimony argument, the juvenile objected to Zimmerly’s testimony, in part because “[a]llowing this statement in, [Zimmerly’s] statement, would be a violation of my client’s Sixth Amendment rights to confront and cross-examine witnesses on statements that they have made.” Before ruling, the trial court heard the State’s responsive arguments and received cases from counsel. Having heard testimony and argument, the trial court ruled that M.H. and Zimmerly were proper outcry witnesses.
After the child’s father testified at the disposition hearing, and in advance of Zimmerly being called to testify, the juvenile asked that the trial court reconsider his objection to the outcry testimony of Zimmerly on the basis that “it is a violation of my client’s right to confront, cross-examine witnesses that’ll come in and testify against him, specifically accusers.” In addition to other objections and arguments, the juvenile also argued, “We believe that this is a violation of my client’s right to confront and cross-examine witnesses under the Sixth Amendment, specifically in article 1, section 10 of the Texas Constitution.” The State’s prosecutor responded that the child was present and available to testify, and argued, “[S]o that would remedy that situation right [*23] from the outgo.” The arguments and discussions then addressed the video recording of the forensic interview. The State argued that the juvenile could address the specific techniques and methods of the advocacy center and the interview by cross-examining Zimmerly, but the juvenile countered that if he did that, the State would argue that he had opened the door to allowing the video in, and therefore, his cross-examination of Zimmerly would be limited. The juvenile clarified that his objection was “to the violation of confrontation . . . . It is a violation of the Constitution of the United States and the State of Texas.” In response to the juvenile’s Sixth Amendment objections, the State noted that the outcry witness statute is a well-settled exception to the hearsay rule in Texas, reminded the court that it had already found Zimmerly to be a credible outcry witness, and informed the trial court, “The child witness is here available to testify should they want to call him as a witness.” The trial court declared that it would wait and “take it as it comes,” and the juvenile asked that the trial court note its objection.
The juvenile’s Sixth Amendment confrontation-clause objections were timely and specific during the outcry and disposition hearings. At the outcry hearing, the trial court implicitly overruled the juvenile’s confrontation-clause objection, and at the disposition hearing the trial court refused to rule. The juvenile then objected to the trial court’s refusal to rule on his confrontation-clause objection. For these reasons, we find the juvenile complied with the requirements of Rule 33.1, and the alleged error in permitting Zimmerly to testify has been preserved for our consideration on appeal. Tex. R. App. P. 33.1.” In re P.M., No. 08-15-00038-CV, 2018 Tex. App. LEXIS 435, at *20-24 (App.-El Paso Jan. 12, 2018)
Here is how you preserve a complaint that service of citation was defective when made by mail by opposing counsel:
- Service: “Our instruction on remand is to decide, to the extent that issue is preserved, whether Texas law authorized the way in which Menon was served. Menon now argues for the first time that she was served by a person not authorized to do so; however, “[w]hen a party fails to preserve error in the trial court or waives an argument on appeal, an appellate court may not consider the unpreserved or waived issue.” FDIC v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012). We therefore must first determine whether we can consider [*8] Menon’s new argument. A. The Issue Was Preserved in the Trial Court. Menon complained in her motion for new trial that she “was not properly served.” Citing Texas Rule of Civil Procedure 124, she argued that “[a] default judgment is void unless the defendant: (1) was served with process in strict compliance with the law; (2) accepted or waived service; or (3) made an appearance.” She further stated that “[e]ven if the defendant has actual notice of the lawsuit, without proper service, the defendant has no duty to act; thus the court cannot enter a default judgment.” From these statements, we conclude that Menon’s motion for new trial preserved for appeal the issue of whether the service on her was defective.” Menon v. Water Splash, Inc., No. 14-14-00012-CV, 2018 Tex. App. LEXIS 194, at *8 (App.-Houston [14th Dist.] Jan. 9, 2018)
You must comply with other pertinent rules:
- Factual Sufficiency: “Further, appellants did not file a motion for new trial complaining about the factual sufficiency of the evidence to support any of the attorneys’ fees awarded by the jury. Appellants, therefore, waived any complaint the evidence was factually insufficient [*22] to support the jury’s award of $131,786.11 for attorneys’ fees incurred by Schiro through trial and for contingent attorneys’ fees on appeal.” Barnett v. Schiro, No. 05-16-00999-CV, 2018 Tex. App. LEXIS 235, at *21-22 (App.-Dallas Jan. 9, 2018)
- Factual sufficiency: “Moreover, where, as here, there is no motion for new trial raising factual sufficiency challenges to the jury’s verdict, “[f]actual sufficiency is not preserved for appeal.”” In re A.L.R.M., No. 06-17-00087-CV, 2018 Tex. App. LEXIS 964, at *1 n.2 (App.—Texarkana Feb. 2, 2018)
- Factual Sufficiency: “Issues three and four attack the factual sufficiency of the evidence supporting the jury’s two findings. Factual sufficiency issues must be preserved by new trial motion. Tex. R. Civ. P. 324(b)(2). Mother did not file a new trial motion, so we overrule issues three and four for non-preservation.” In re A.R.M., No. 05-17-00539-CV, 2018 Tex. App. LEXIS 961, at *3 (App.—Dallas Feb. 1, 2018)
- Pleading: “Simmons alleged in her live pleading that she had equity in the property and had not received notice of the foreclosure sale as required by the property code. She learned of the pending sale when she attempted to discuss reinstatement of the loan with Priority. In her pleading, she sought only injunctive relief against the sale. In connection with the request for an injunction, she alleged she “reasonably relied on Defendant’s conduct and promises to allow Plaintiff a period of time to address the issues of probating the estate of her parents and make payments to Defendant.” Other than general relief, Simmons prayed only for a temporary restraining order against foreclosure. Although she alluded to misrepresentation in her summary judgment response, Simmons never amended her pleading to allege a cause of action for misrepresentation or seek relief for that claim. Nothing in the record indicates that Priority understood a claim for misrepresentation was alleged by Simmons or that the claim was actually tried by either party. Thus, that claim was never presented to the trial court and Simmons’s arguments on appeal are not [*4] preserved.” Simmons v. Priority Bank, N.A., No. 05-16-01130-CV, 2018 Tex. App. LEXIS 800, at *3-4 (App.—Dallas Jan. 29, 2018)
Your complaint has to be sufficiently specific to make the trial court aware of your complaint:
- Attorney’s Fees: “In her second issue, Gallegos claims that the trial court was required to award her attorney’s fees because: (1) she was the prevailing party; (2) Quintero did not controvert her evidence that the attorney’s fees were reasonable and necessary; and (3) Gallegos satisfied all the requirements to recover attorney’s fees. . . . . Quintero additionally contends that Gallegos waived any error by failing to object to the trial court’s refusal to award attorney’s fees. We disagree. By requesting attorney’s [*8] fees below, Gallegos preserved error on the matter, despite failing to object to the trial court’s denial of said request. See Tex. R. App. P. 33.1;” Gallegos v. Quintero, No. 13-16-00497-CV, 2018 Tex. App. LEXIS 903, at *6-8 (App.—Corpus Christi Feb. 1, 2018)
- Legal Sufficiency: “Although Travelers argues we should liberally construe its oral motion for directed verdict and written motion for new trial to include an objection to the sufficiency of the evidence challenging the extent of Thompson’s injuries (Traveler’s first issue), we decline its invitation. An objection must not only identify the subject of the objection, but it must also state specific grounds for the desired ruling. . . . Without a proper presentation of the alleged error to the trial court, a party does not afford the trial court the opportunity to correct the error. . . . Here, although Travelers began its oral motion for directed verdict by generally stating, “Basically the issue here is that we think the evidence is legally insufficient,” its argument then specifically focused on the necessity of a party to prove an injury to certain body parts to recover LIBs. Travelers repeatedly argued there was no evidence to “prove that there was injury to the member” or “evidence of damage or harm to the physical structure of the enumerated body parts.” Similarly, Travelers’ motion for new trial generally stated, “The evidence is legally and factually insufficient in this case,” [*9] but then specifically limited the scope of its sufficiency challenges to the jury’s LIBs award. It argued, “Proof of an injury to two or more scheduled members constitutes a vital fact necessary to support recovery of LIBs. Such proof is legally insufficient in this case.” The new trial motion is silent on Travelers’ extent of injury issue. Although we recognize objections may be liberally construed within the context they are made, we cannot conclude the trial court understood Travelers’ arguments as challenges to the sufficiency of the evidence supporting Thompson’s extent of injuries claim. Travelers never argued to the trial court, as it does on appeal, that Thompson’s extent of injuries claim was insufficient because (1) Dr. Trinh’s opinions were unreliable, (2) conclusory, and (3) not based on reasonable medical probability. Thus, Travelers failed to present its arguments and afford the trial court an opportunity to correct any alleged error.” Travelers Indem. Co. v. Thompson, No. 05-16-00816-CV, 2018 Tex. App. LEXIS 761, at *8-9 (App.-Dallas Jan. 24, 2018)
- Legal Sufficiency: “In its second issue, Travelers challenges the sufficiency of the evidence to support the jury’s award of LIBs. On appeal, Travelers argues the judgment is legally insufficient because the evidence does not establish that Thompson suffered an injury to either foot at or above the ankle or either hand at or above the wrist and that any such injury he suffered resulted in the permanent and total loss of use of those members of his body. As explained above, Travelers’ oral motion for directed verdict and written motion for new trial challenged the sufficiency of the evidence to support “an injury to two or more members.” It argued, “there is just no expert evidence,” to show damage or harm to the “physical structure of the enumerated [*11] body parts.” Travelers did not argue the evidence was legally insufficient to show a total and permanent loss of use. Although Travelers cites to portions of its oral motion for directed verdict in its reply brief to show preservation, the portion cited merely refers to loss of use within Travelers’ discussion of a specific case, Dallas National Insurance Co. v. De La Cruz. During Traveler’s specific arguments to the trial court regarding how the present facts are similar to De La Cruz, it focused on the lack of evidence to damage or harm to the physical structures of the enumerated body parts, not loss of use. As such, to the extent Travelers argues the evidence is legally insufficient to support Thompson’s total and permanent loss of use, its issue is not preserved because it failed to present its argument with clarity such that the trial court would understand its objection.” Travelers Indem. Co. v. Thompson, No. 05-16-00816-CV, 2018 Tex. App. LEXIS 761, at *10-11 (App.-Dallas Jan. 24, 2018)
- Legal Sufficiency: “Monroe responds that SunTrust failed to preserve its first and second issues regarding its challenges to the sufficiency of the evidence to support the jury’s commercial reasonableness and collateral value findings and its complaint regarding its damages. . . . SunTrust did not move for an instructed verdict or for a JNOV, did not object to the submission of any of the questions to the jury, and did not file a motion to disregard any of the jury’s answers. However, SunTrust filed a “Motion to Modify, Correct, or Reform Judgment and Motion for New Trial in the Alternative,” which we review to determine whether it has preserved its first and second issues. In part of its motion, SunTrust argued—albeit in a roundabout way—that there was no evidence to support the jury’s finding that the sale of the collateral was not commercially reasonable, stating, “In the present case, there is no evidence to support the jury’s finding that the value of the collateral in a commercially reasonable transaction would be $143,713.85.” Accordingly, we conclude that [*21] it has preserved its legal sufficiency challenges to the jury’s commercial reasonableness and collateral value findings in its first issue, although not its factual sufficiency challenges to these findings. In another part of the same motion, SunTrust argued that there was no evidence to support the jury’s finding that Monroe did not receive the required notice, which supports the portion of its first issue in which it argues that Monroe was provided legally sufficient notice. Finally, in its motion, SunTrust argued that its damages and the amount due under the contract were proven as a matter of law, and it sets out the same arguments in its issue 2—mostly verbatim—with regard to whether the trial court erred by entering a take-nothing judgment as to its damages. Accordingly, we conclude that SunTrust’s arguments in its second issue have been preserved for our review.” Suntrust Bank v. Monroe, No. 02-16-00388-CV, 2018 Tex. App. LEXIS 942, at *19-21 (App.—Fort Worth Feb. 1, 2018)
You have to obtain a ruling on your complaint, or object to the trial court’s failure to rule:
- Abatement: “Months later, the case was called to trial and Doan announced ready. When the trial court asked if any pretrial matters remained, Doan’s counsel asked the trial court to sign an order denying its motion to abate. The trial court asked when the motion was heard, and Doan’s attorney answered that the motion had not been heard because “it was pulled when [TransCanada] agreed to make an offer.” The trial court stated, “[A] motion to abate was never presented to me. I am not hearing it today.” Thus, the trial court did not deny the motion to abate, but instead refused to rule on it because Doan had passed the original hearing and never reset it. To preserve a complaint for appellate review, the record must show either that the trial court ruled on the request, objection, or motion, or that the complaining party objected to the trial court’s refusal to rule. See Tex. R. App. P. 33.1(a)(2)(B). Because the trial court did not rule on the motion, and Doan did not object to the trial [*24] court’s refusal to rule, this complaint has not been preserved for review.” Doan v. TransCanada Keystone Pipeline, LP, No. 14-16-00573-CV, 2018 Tex. App. LEXIS 630, at *23-24 (App.-Houston [14th Dist.] Jan. 23, 2018)
- Continuance: “In issues five and eight, McCaffety contends that the trial court erred by failing to rule on a motion to continue a hearing on Blanchard’s motion for summary judgment. “A party moving for continuance of a summary-judgment hearing must obtain a written ruling on its motion in order to preserve a complaint [*6] for appellate review.” . . . .To preserve error in a trial court’s refusal to rule on a motion, there must be an objection to the refusal. Tex. R. App. P. 33.1(a)(2)(B). Because McCaffety did not obtain a written ruling on his motion for a continuance, and he did not object to the court’s failure to rule, he failed to preserve these two issues.“ McCaffety v. Blanchard, No. 01-15-01077-CV, 2018 Tex. App. LEXIS 730, at *5-6 (App.-Houston [1st Dist.] Jan. 25, 2018)
- Injunction: “In his first issue, White complains the trial court erred by failing to rule on his request for a temporary injunction to prevent the foreclosure sale. To preserve this complaint for appellate [*7] review, White was required to establish in the record that the trial court refused to rule on his request for injunctive relief, and he objected to that refusal. See Tex. R. App. P. 33.1(a)(2)(B). Nothing in the appellate record demonstrates the trial court refused to rule or that White objected to its failure to rule. Accordingly, White failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a)(2)(B);” White v. Calvache, 2018 Tex. App. LEXIS 758, *6-7 (Tex. App.-Dallas Jan. 24, 2018)
There were lots of cases in which the parties failed to raise their complaints in the trial court. I’ll not burden you with those. I’ll be back again next week.
I hope this helps. Y’all take care.