Error Preservation in Texas Civil Cases

January 9, 2015

Dear All:

Welcome to what I hope is the happiest New Year ever!  In this first issue of the new year, JAJ reminds us of the saving graces in approving an order only as to form, and Gulley reminds us that preservation of error as to an expert’s opinion is two-headed beast, depending on whether the complaint is to methodology, technique, or foundational data (must be preserved), or as to speculative or conclusory testimony (does not have to be preserved).

But first, a few other reminders.  One does not have to complain about certain errors to preserve the issue for appeal–like the sufficiency of the evidence in the trial court, in the context of a bench trial:

  • Attorney’s Fees: “To the extent that Jimoh’s complaints relate to the sufficiency of the evidence to support the $5,000 award, she may advance the complaints, regardless of whether she first presented them to the trial court.n3 See Tex. R. App. P. 33.1(d).”  Adenrele Oladapo Jimoh v. Nwogo, 2014 Tex. App. LEXIS 13797, 10-11 (Tex. App.–Houston [1st Dist.] Dec. 23, 2014)
  • Expunction: “In his first issue, the District Attorney challenges the legal sufficiency of the evidence supporting the expunction order. Fourrier argues the District Attorney’s first issue is moot because it was not preserved. However, in a nonjury case, a complaint regarding the legal or factual sufficiency 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). Further, Fourrier’s argument overlooks the District Attorney’s contention in the motion for reconsideration of the order granting the petition for expunction [*5]  that Fourrier failed to establish he met the statutory requirements for an expunction.”  Collin County Dist. Attorney’s Office v. Fourrier, 2014 Tex. App. LEXIS 13694, 4-5 (Tex. App.–Dallas Dec. 22, 2014)
  • Parent Child Relationship: “we construe Vanessa’s issue as challenging the sufficiency of the evidence to rebut the parental presumption. See In re Crumbley, 404 S.W.3d 156, 162 (Tex. App.—Texarkana 2013, no pet.) (similarly construing a challenge to the lack of a finding that the parental presumption had not been rebutted). Such issues are not waived by approving an order as to form.”  In re J.A.J, 2014 Tex. App. LEXIS 13871, 6 (Tex. App.–San Antonio Dec. 31, 2014)

The preservation of error as to an expert’s opinion is two-headed beast, depending on whether the complaint is to methodology, technique, or foundational data (must be preserved), or as to speculative or conclusory testimony (does not have to be preserved):

  • Expert: “The rule on preservation [*12]  of error regarding the reliability of expert testimony is that a challenge to the underlying methodology, technique, or foundational data used by the expert must be preserved by a specific, timely objection to permit the trial court to evaluate the scientific methodology and data in its role as gatekeeper. Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (trial objection also ensures a full record will be developed on the issue). A trial objection is not required, however, to preserve a challenge to speculative or conclusory expert testimony which is non-probative on its face. Id. at 232 (conclusory expert testimony is not relevant evidence and cannot support a judgment); accord City of San Antonio v. Pollock, 284 S.W.3d 809, 817 (Tex. 2009).  Gulley filed a pretrial motion to exclude the following opinions by King: (i) that the foundation was under-designed and under-constructed which contributed to the excessive movement and interior damage on the ground that the opinion had “no factual basis” and was “based on flawed reasoning,” and was therefore unreliable; and (ii) that the foundation continued to move excessively after the piering and plumbing repairs, which supports his conclusion that the plumbing leaks did not cause the initial movement and interior damage, on the ground that the post-piering [*13]  movement was “not relevant to show the initial cause of foundation movement before repairs.” Gulley’s motion also objected to King’s opinion concerning “fill settlement” as speculative and sought to prohibit the use of his demonstrative 3-D elevation model; however, neither of these arguments are relevant to this appeal.n4 At the conclusion of the Daubertn5 hearing, the trial court denied Gulley’s motion to exclude the challenged portions of King’s testimony. Gulley did not raise any additional objections during King’s testimony at trial. However, after State Farm closed, Gully moved to strike King’s testimony concerning post-piering foundation movement, arguing it was “not the same foundation” after installation of the piers and repair of the plumbing leaks, and that King “could not explain” where he saw 5.4 inches of new movement on the 2013 elevations. The trial court denied the motion. . . . .[footnotes omitted]  Thus, the record shows Gulley presented a trial objection to King’s underlying methodology and foundational [*14]  data only with respect to his opinions about (i) the foundation being under-constructed for the clay soil, and (ii) the foundation’s continued excessive movement after repairs. As to King’s other opinions challenged on appeal, that there was no “heave” at the site of the leaks or center drain line and that seasonal moisture fluctuations and migration caused the excessive foundation movement and interior damage, Gulley is limited to showing on the face of the record that these opinions were conclusory.”  Gulley v. State Farm Lloyds, 2014 Tex. App. LEXIS 13704, 11-14 (Tex. App. San Antonio Dec. 23, 2014)

We actually had several rulings in the last two or three weeks which held that error had been preserved, and those rulings are always instrumental:

  • Evidence: “Ingram contends that Moreno failed to preserve error because she did not object to the jury charge. The record does reflect, however, that Moreno made repeated, specific objections to Dr. Starry’s testimony on the same grounds she raises on appeal.  Out of the presence of the jury, during voir dire examination of Dr. Starry, Moreno’s counsel made the following objection:  “Your Honor, before the Jury comes in, I further move that we limit this witness to the scope of chiropractic medicine and any referrals that he made. I don’t believe he’s also qualified to make any determination [6]  regarding the billing records or the treatment that’s been done by any of the other medical providers besides himself and his practice.”   The trial court responded, “I overrule that.” This objection preserved Moreno’s complaint. Tex. R. Evid. 103(a)(1) (“When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.”).”  Moreno v. Ingram, 2014 Tex. App. LEXIS 13966, 6 (Tex. App.– Dallas Dec. 31, 2014)Preserved, defendant said preserved error, not 33.1
  • Evidence: “In addition, Moreno’s counsel made specific objections to Dr. Starry’s testimony, including that it was “beyond the scope of chiropractic medicine,” “should be limited to the scope of chiropractic medicine,” and was “beyond his scope of practice.” Moreno’s counsel also objected to Dr. Starry’s testimony regarding Ingram’s treatment by Dr. Khan, and to his testimony about the medical necessity of the ESI procedures. Additional objections were made to two demonstrative exhibits on the ground that Dr. Starry was not qualified to testify about the procedures they showed. Moreno’s counsel also objected, “I don’t believe that [Dr. Starry] has demonstrated the knowledge, training, or experience to give any testimony regarding the injections in this case. And any possible demonstrative exhibits related to those.” The trial court specifically overruled each of these objections. Moreno’s objections were sufficient to preserve her complaint on appeal.”  Moreno v. Ingram, 2014 Tex. App. LEXIS 13966, 6 (Tex. App.– Dallas Dec. 31, 2014)
  • Evidence: “The charge as actually given required the jury to determine an amount that would “fairly and reasonably” compensate Ingram for injuries “that resulted from the occurrence in question.” On appeal, we may consider “whether the evidence at trial would enable reasonable and fair-minded jurors” to find that the damages awarded would fairly and reasonably compensate Ingram for injuries resulting from Moreno’s negligence. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Whirlpool Corp., 298 S.W.3d at 641. In addition, whether or not Moreno objected to the charge, we may review her complaint that she was harmed by the erroneous [9]  admission of evidence. See Whirlpool Corp., 298 S.W.3d at 641. We conclude that Moreno preserved her complaints that Dr. Starry’s testimony was insufficient to support the jury’s answer to Question 3, and that his testimony outside the scope of his expertise was improperly admitted.” Moreno v. Ingram, 2014 Tex. App. LEXIS 13966, 6 (Tex. App.– Dallas Dec. 31, 2014)
  • Jury Charge: “Appellants’ argument is premised on their interpretation of whether causation must be shown in fraud by nondisclosure; they contend that it does not, but appellees contend it does. This issue was not raised or disputed at trial and [15]  is not necessary to the resolution of this appeal. Appellees clearly objected to the submission of either type of fraud with respect to both actual and exemplary damages on the grounds that there was insufficient evidence to support either type of fraud (all of Question Number 2) and that any fraud by White caused harm to Davis (Question Number 6). We do not think these general objections failed to make the trial court aware of the nature of appellees’ objections. Thus, we conclude and hold that appellees’ general sufficiency objection to Question Number 6 preserved their complaint on appeal regarding the sufficiency of the evidence to show causation.”  Davis v. White, 2014 Tex. App. LEXIS 13807, 14-15 (Tex. App.– Fort Worth Dec. 29, 2014)

Of course, as shown by the foregoing cases, you have to obtain a ruling on your objection, and such a ruling will go to show that the objection was brought to the trial court’s attention, which you also must do:

  • Jury Charge: “JP Morgan also contends that it preserved error by submitting a proposed jury instruction on the partnership factors. Rule 276 provides in part, “When an instruction, question, or definition is requested and the provisions of the law have been complied with and the trial judge refuses the same, the judge shall endorse thereon ‘Refused,’ and sign the same officially.” Tex. R. Civ. P. 276. JP Morgan’s proposed charge does not contain any such endorsement. An endorsement is not the only means of obtaining a ruling, but if there is no endorsement, the record must establish that the trial court otherwise ruled on the request, expressly or implicitly, for potential error to be preserved. . . . Even though this proposed instruction was filed with the trial court ten days before trial, JP Morgan did not bring the requested instruction to the trial court’s attention during the charge conference and did not object to its omission from the charge. Also, there is no indication in the record that the trial court noticed or considered JP Morgan’s proposed charge. Therefore, we conclude JP Morgan did not preserve its capacity complaint by filing a proposed instruction on the partnership factors.”   JPMorgan Chase Bank, N.A. v. Prof’l Pharm. II, 2014 Tex. App. LEXIS 13942, 24 (Tex. App.–Fort Worth Dec. 31, 2014) raised by defendant , 33.1, not preserved.

The complaint at trial must comport with the complaint on appeal:

  • Capacity:  “JP Morgan [26]  further contends that it preserved error by filing special exceptions and a motion to dismiss Pharmacy II’s declaratory judgment claims in which JP Morgan argued that (1) declaratory relief was not available to settle Pharmacy II’s status as a partnership because Pharmacy II was required to prove its status as a partnership as part of its claims for affirmative relief that were already pending before the court; (2) a declaration regarding Pharmacy II’s status as a partnership could not be resolved by a declaratory judgment action; and (3) Pharmacy II was not entitled to declaratory relief because it had not named as parties all persons or entities that had a claim or interest that would have been affected by the declaration. . . . By its special exceptions and motion to dismiss, JP Morgan did [27]  not raise the issue of Pharmacy II’s lack of capacity as a partnership. Assuming without deciding that JP Morgan could preserve error through its special exceptions and motion to dismiss, JP Morgan has waived its complaint on appeal because it differs from the complaint presented to the trial court in its special exceptions and motion to dismiss.”  JPMorgan Chase Bank, N.A. v. Prof’l Pharm. II, 2014 Tex. App. LEXIS 13942, 26-27 (Tex. App.–Fort Worth Dec. 31, 2014) raised by defendant , 33.1, not preserved.
  • Continuance: “As at trial, Abel and Josefa proceed pro se on appeal. A pro se litigant is held to the same standards as a licensed attorney. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam). In their joint brief, [7]  Abel and Josefa raise two main complaints on appeal: (1) the trial court abused its discretion when it denied Abel’s motion for continuance, and later his motion for new trial, based on violation of his right to full and fair discovery; and (2) the trial court’s failure to file written findings of fact and conclusions of law, as timely requested, was harmful error. However, Josefa did not file her own motion for continuance or motion for new trial and never objected in the trial court, as Abel did, to any denial of her discovery rights. Similarly, Josefa did not file a request for findings of fact and conclusions of law. Further, Josefa did not sign Abel’s pleadings and there is nothing in the record to show that Josefa ever joined or adopted Abel’s pleadings. Therefore, Josefa has failed to preserve either of the issues raised in the appellants’ brief.”  In the Estate of, 2014 Tex. App. LEXIS 13866, 6-7 (Tex. App.– San Antonio Dec. 31, 2014)
  • Evidence: “With regard to the trial court’s nine rulings pointed out by Mother, most appear to have been properly sustained and appear to relate to the trial court’s ruling on the parties’ motions in limine with regard to any mention of the prior termination trial. However, because Mother did not make any offers of proof of what she proposed to show with the evidence excluded by the objections, cf. Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(2), and because Mother did not ensure that the court reporter recorded the bench conferences during which the objections were discussed, she cannot show us how these rulings constituted bias against her.”  P.M., 2014 Tex. App. LEXIS 13947, 101 (Tex. App.–Fort Worth Dec. 31, 2014),
  • Jury Charge: “Although JP Morgan objected to jury question number one, its complaint was that the question was confusing to the jury absent any instructions that Pharmacy II was a partnership. While this objection did identify the lack of an instruction related to Pharmacy II’s status as a partnership, it was insufficient to apprise the trial court that JP Morgan was objecting to the lack of questions, definitions, or instructions on the issue of Pharmacy II’s capacity. JP Morgan’s complaint on appeal does not comport with the complaint it made in the trial court. Therefore, JP Morgan failed to preserve error.”  JPMorgan Chase Bank, N.A. v. Prof’l Pharm. II, 2014 Tex. App. LEXIS 13942, 23 (Tex. App.–Fort Worth Dec. 31, 2014).

And, as usual, you do not preserve your complaint if you do not make it in the trial court:

  • Attorney’s Fees: “As to the amount of the attorney’s fees, Smith argues that the Reids should only recover 10% of $87,613.30. Specifically, Smith alleges that evidence was presented that the Reids incurred a total of $87,613.30 in attorney’s fees [*32]  at trial, but counsel testified that only 10% of the fees were incurred in relation to the Smith’s claim of adverse possession of the “bubble.” Again, we disagree. Itemized invoices were presented in support of the entire amount awarded ($79,171.30), and Smith lodged no objection to the evidence at trial. Thus, Smith has waived his segregation complaint on appeal.”  Smith v. Reid, 2014 Tex. App. LEXIS 13703, 31-32 (Tex. App.–San Antonio Dec. 23, 2014)
  • Attorney’s Fees: “However, to the extent that Jimoh raises other complaints about the award of attorney’s fees on appeal, namely, that the Nwogos failed to plead for attorney’s fees in the justice court, only requested $1,500 in attorney’s fees in their county court pleadings, and did not present a demand for attorney’s fees in accordance with section 38.002, we must consider whether she preserved the complaints [*11]  “by a timely request, objection, or motion.” See Tex. R. App. P. 33.1(a). . . . Because Jimoh, in her motion for new trial, did not specify that she intended to challenge the trial court’s award of attorney’s fees on the grounds that the Nwogos failed to plead for them in justice court, only requested $1,500 in attorney’s fees in their county court pleadings, and did not “present” their attorney’s fees demand, we hold that Jimoh has not preserved these complaints for appellate review.”  Adenrele Oladapo Jimoh v. Nwogo, 2014 Tex. App. LEXIS 13797, 10-11 (Tex. App. Houston 1st Dist. Dec. 23, 2014)
  • Employment: “To the extent Hamilton also contends that he was denied his due process rights [on his request for mandamus relief requiring his reinstatement], he neither raised that issue in the district court nor offers any argument or authority on it in his briefing and has therefore waived that complaint on appeal.”  Hamilton v. Wash., 2014 Tex. App. LEXIS 13733 (Tex. App.–Austin Dec. 23, 2014)
  • Jury Charge: “Trinity did not object to the damages questions and related instructions as proposed and submitted. In fact, when asked by the trial court during the charge conference, Trinity’s attorney affirmatively stated that Trinity had no objections to the jury charge. If Trinity believed that the jury charge presented an improper consideration of its damages because it conditioned those damages on findings that only the Landowners had failed to comply with the Lease or that the Landowners had failed to comply first, Trinity was required to timely object and make the trial court aware of its complaint in order to preserve error for appeal. See Tex. R. Civ. P. 272, 274; Equistar, 240 S.W.3d at 868. Trinity failed to preserve error to challenge the conditional format of the jury charge. Therefore, Trinity may not do so here, and the damages are determined by the questions and instructions given.”  Trinity Materials, Inc. v. Sansom, 2014 Tex. App. LEXIS 13884, 43 (Tex. App.–Austin Dec. 31, 2014)
  • Juvenile: “M.E. did not object that his sentence was disproportionate to [*7]  the offense at the time that it was imposed, nor did he raise this complaint in a post-judgment motion. We have repeatedly held that this type of claim must be preserved at the trial court level.”  In re M.E., 2014 Tex. App. LEXIS 13777, 6-7 (Tex. App.–Fort Worth Dec. 23, 2014)
  • Juvenile: “Neither Sandra nor her trial counsel complained about any deficiency in the statutory admonishments before testimony [9]  began.6Link to the text of the note Thus, we hold that Sandra failed to preserve any error related to the failure of the trial court to admonish her on her right to confront witnesses.”  In re S.A., 2014 Tex. App. LEXIS 13878, 8-9 (Tex. App.– Texarkana Dec. 31, 2014).  33.1, not preserved, defendant asserted objection.
  • Parent Child Relationship: “J’s complaint on appeal is that the Department’s failure to fully respond to discovery should have barred the trial court from proceeding with the final hearing. However, this argument was not raised at trial. As the above transcript demonstrates, John’s sole complaint at trial was that allowing the Department to call a single witness in order to “commence[] the trial on the merits” was inconsistent with the purpose of section 263.401 of the Family Code. J did not contend that the Department’s failure to provide its complete de-identified file should have precluded the court from proceeding with the termination hearing, and he has therefore waived that complaint on appeal.”  A. E. & J. v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 13726 (Tex. App.–Austin Dec. 23, 2014)
  • Pleading: “In his second issue, Baron argues that the trial court erred in the 2013 Order by ordering the property in Fred’s trust transferred to the Management Trust “without any supporting pleading or notice and an opportunity to be heard.” Bari argues that he waived this issue because he did not raise his complaints in the trial court that the relief was not pleaded and that there was no “actual hearing[,]” no notice, and no opportunity [34]  to be heard concerning the transfer of the property to the Management Trust. We agree. Under rule of appellate procedure 33.1, in order to preserve a complaint for appeal, the record must reflect that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling the complaining party sought with enough specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a). Baron did not raise these complaints in the trial court before or during the hearing on the Amended Motion, or by motion or objection after the hearing. As a result, he has not preserved this issue for appeal.”  Ablon v. Campbell, 2014 Tex. App. LEXIS 13836, 33-34 (Tex. App.–Dallas Dec. 29, 2014)
  • Sanctions: “Ketterman failed to preserve any challenge to the sanctions award on due process grounds. When an attorney fails to complain of a sanction on a particular ground and ask the trial court to reconsider its actions on that basis, the attorney waives any complaint about the trial court’s action with respect to that ground. See Tex. R. App. P. 33.1(a)(1) (stating that to preserve error for appeal, [8]  party must make timely and sufficiently specific objection in trial court); see generally Kiefer v. Cont’l Airlines, Inc., 10 S.W.3d 34, 41 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (finding sanctioned law firm waived complaint by not objecting at trial court level). Here, although the trial court’s sanctions order quoted extensively from the pre-trial hearing—thus, putting Ketterman on notice that the court was relying upon statements made during that proceeding for purposes of imposing sanctions—Ketterman did not argue in her motion for reconsideration that the trial court’s consideration of, or reliance upon, such statements was improper—much less that it violated her due process rights. Accordingly, Ketterman failed to preserve any due process argument for our review.”  Ketterman v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 13912, 7-8 (Tex. App.–Houston [1st Dist.] Dec. 30, 2014)
  • Settlement Agreement: “Under her first issue, Riggins also asserts that the trial court erred in ordering disbursement of attorney’s fees directly to the law firm representing the West Columbia Parties rather than to the West Columbia Parties. Riggins does not explain how she preserved error as to this complaint. A review of the record reveals that Riggins did not voice this complaint in the trial court and obtain an adverse ruling from the trial court. Therefore, Riggins failed to preserve error in the trial court as to this appellate complaint.”  Riggins v. Hill, 2014 Tex. App. LEXIS 13761 (Tex. App.–Houston [14th Dist.] Dec. 23, 2014)

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

December 20, 2014

Dear All:

In terms of the kinds of rulings that are sort of surprising, and hence you might want to be aware of up front, I mention one case involving a jury charge objection.  In that case, there were two related/overlapping type jury questions.  One party objected without specifying whether it was objecting to the first, the second, or both questions.  The Court of Appeals held that this failure to specify waived the objection as to the jury question the party complained about on appeal.  See Irika Shipping S.A. v. Henderson, 2014 Tex. App. LEXIS 13550, 28-29 (Tex. App.–Beaumont Dec. 18, 2014), below.  I have to admit I find myself disagreeing with this holding, but it is probably better to be safe and object to both such questions, just to avoid having to fight the preservation issue on appeal.

Never underestimate the power of a legal sufficiency challenge in a bench trial, which may be raised for the first time on appeal–and which can take advantage of a change in the law while the case is on appeal:

Minority Shareholder Rights “UP Austin contends that we may not [*41]  consider Ritchie’s impact on this case because the Owners waived any argument that minority oppression is not a valid common-law cause of action by failing to preserve that claim in this Court or the trial court. On appeal, the Owners have challenged (1) the legal- and factual-sufficiency of the evidence to support the minority-oppression findings and conclusions and (2) the sufficiency of UP Austin’s pleadings to support the relief afforded on the basis of that claim. HN8″When the applicable law changes during the pendency of the appeal, the court of appeals must render its decision in light of the change in law.” Blair v. Fletcher, 849 S.W.2d 344, 345 (Tex. 1993). To the extent that principle applies only to legal challenges that have properly been preserved, we conclude that the Owners’ legal-sufficiency challenges, which may be raised for the first time on appeal from a judgment following a non-jury trial, are adequate to preserve the argument that the trial court’s judgment against them was based on an invalid legal theory. . . . Applying Ritchie, we reverse the trial court’s judgment against the Owners, which is based on an invalid legal theory, and render judgment that the Owners are not liable for minority oppression as alleged.”  Central Austin Apts., LLC v. UP Austin Holdings, LP, 2014 Tex. App. LEXIS 13057, 40-42 (Tex. App. Austin Dec. 8, 2014)

Parent Child Relationship: “In their first issue, appellants argue that the evidence is legally and factually insufficient to support the termination of their parental rights under section 161.001(1)(K) because the affidavits do not contain all the mandatory language required under section 161.103 to make the affidavits valid. The Department contends that appellants failed to preserve this issue for review. Because this is an appeal from a bench trial, the mother and father are not required to preserve their legal and factual sufficiency complaints for appeal. See Tex. R. App. P. 33.1(d);”  In Interest of A.H., 2014 Tex. App. LEXIS 13549 (Tex. App.–Beaumont Dec. 18, 2014)

    You have to assert your objection in a timely fashion in the trial court:

Contractual Jury Trial Waiver: “Laven responded to the motion to strike [her jury trial request] as though it was filed by all appellees and applicable to the entire case; . . . .Laven opposed enforcement of the jury waiver [clause in the Trust Agreement] solely on the ground that appellees waited too long after Laven made the jury demand to file the motion to strike. . . . In her response, Laven did make a specific objection, but it was distinctly different than the complaint she raises on appeal. The objection did not in any manner inform [*9]  the trial court that Laven opposed enforcement of the jury waiver because it was applicable to Arnold as trustee only, nor was such a complaint apparent from the context. . . . Laven first advanced such complaint [that the waiver was unenforceable as to THBN and Arnold individually] in her motion for new trial. We conclude that her presenting this new ground to attack enforcement of the contractual jury waiver after the trial court had conducted a bench trial was not a timely objection.”  Laven v. Thbn, 2014 Tex. App. LEXIS 13252, 8-9 (Tex. App.–Houston [14th Dist.] Dec. 11 2014)

    You have to get a ruling from the trial court, or object to the trial court’s failure to rule:

Attorney’s fees: “Myers’s attorney’s affidavit pointed out that fees were not segregated, and he mentioned in the middle of his argument [*22]  at the summary judgment hearing that there was no segregation of fees. It is not clear from the record, however, whether the trial court sustained Myer’s objection, overruled it, or ignored it.n49 But assuming that Myers preserved his complaint, we disagree that the award was improper.”  Myers v. Southwest Bank, 2014 Tex. App. LEXIS 13288, 21-22 (Tex. App.– Fort Worth Dec. 11, 2014)

Evidence: “Based on the record before us, which does not include a reporter’s record from the summary-judgment hearing, we will not assume that the trial court failed to rule, either expressly or implicitly, on DeVoll’s objections. See Tex. R. App. P. 33.1(a)(1). However, even assuming that the trial court was made aware of DeVoll’s objections and refused to rule on them, as DeVoll contends, nothing in the record indicates that DeVoll objected to the trial court’s refusal to make a ruling. See id. 33.1(a)(2)(B). Accordingly, DeVoll has failed to preserve error on this issue. See id. DeVoll’s second issue on appeal is overruled.”  DeVoll v. Chen, 2014 Tex. App. LEXIS 13506 (Tex. App.–Austin Dec. 18, 2014)

The record must show that you made your objection in a timely fashion:

Discovery: “see also Tex. R. Civ. P. 193.2 (a) (objections must be made in writing either in response to discovery or in separate document within time for response). Failure to object within the required time period waives the objection unless the trial court excuses the waiver for good cause shown. Tex. R. Civ. P. 193.2(e). Because the mandamus record does not establish that relator objected to any specific discovery request on the grounds he now raises before the discovery responses became due, any objection to the relevance, invasiveness, burden or breadth of [*8]  the requests for production was waived.”  In re Lowery, 2014 Tex. App. LEXIS 13633, 7-8 (Tex. App.–Dallas Dec. 18, 2014)

    Your objection must be specific enough:

Jury Charge: “The Vessel Defendants’ final argument regarding charge error pertains to omitted language in the instruction. More specifically, the Vessel Defendants expressly made the following objection:DEFENSE ATTORNEY: Defendants would object to the fact that the fifth circuit pattern charge was not filed in terms of the duty to intervene and specifically the language which was deleted in the context of the duty to intervene is: In determining whether the Plaintiff’s employer’s judgment [*30]  is so obviously improvident that the Defendant should have intervened, you may consider that the Plaintiff’s employer has a primary duty to provide a safe place to work for the Plaintiff and its other employees and that the Defendant ordinarily must justifiably rely upon the Plaintiff’s employer to provide it[s] employees with a reasonably safe place to work.  To the extent that was not included in the charge, Defendants object.”  The language that was omitted pertains to the duty to intervene. Regarding the duty to intervene, the Fifth Circuit’s pattern jury instruction includes the following [text omitted]  The trial court’s charge in this case omitted the italicized language. The Vessel Defendants expressly requested that the omitted language be included. And, the Vessel Defendants read into the record the language that was omitted.  Although the Vessel Defendants did not explain or state specifically why the omitted language was necessary, under the facts and circumstances of this case, the specific grounds were apparent from the context and content of the omitted language. Accordingly, we conclude that the Vessel Defendants adequately preserved their objection to the omission of the requested language. See Tex. R. App. P. 33.1(a);”  Irika Shipping S.A. v. Henderson, 2014 Tex. App. LEXIS 13550, 29-32 (Tex. App.–Beaumont Dec. 18, 2014)

Jury Charge: “The Vessel Defendants objected on the record at trial as follows:      DEFENSE ATTORNEY: Judge, one other thing. On the blanks we had a discussion about definition of “vessel interests.” Are we going with all three parties at this point? THE COURT: That’s correct. I figured you need to address that. DEFENSE ATTORNEY: The 905-B definition in Section 21 defines vessel as being these various entities including owner/operator, charter. And it would be Defendants’ position that, therefore, there should be a single blank for the defendant vessel interest and not two blanks.  THE COURT: Well, considering the concern over whether there would be joint and several liability and the viability [*29]  potential — or the potential for viability, or lack thereof, of either of the parties inability at this late hour for it to be resolved in terms of an agreement, the Court will overrule that objection and submit all three.  The Vessel Defendants failed to specify to the trial court whether their objection was to question one, question two, or both questions. And, the record does not demonstrate that any further argument was made to the trial court on this point. On appeal, the Vessel Defendants specifically complain only about question two and not question one. Accordingly, the Vessel Defendants did not preserve their objection on appeal to question two. See Tex. R. App. P. 33.1(a).”  Irika Shipping S.A. v. Henderson, 2014 Tex. App. LEXIS 13550, 28-29 (Tex. App.–Beaumont Dec. 18, 2014)

You must object in the trial court on the same basis you complain on appeal:

Jury Charge/Attorney’s Fees: “Aon generally stated that it objected to question five, which asked the jury “What is a reasonable fee for the necessary services of C.L. Thomas’ attorneys in this case, stated in dollars and cents?” However, Aon objected on the basis that “Thomas failed to segregate the attorneys’ fees that are recoverable for the Interplan Suit and those that are not.” Aon did not object on the basis that Thomas failed to segregate its attorneys’ fees for its breach of contract claim from its tort claims. See TEX. R. APP. P. 33.1(a)(1) (requiring a specific objection); TEX. R. CIV. P. 274 (“A party objecting to a charge must point out distinctly the objectionable matter and the grounds for the [*27]  objection. 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.”) . . . .Therefore, we conclude that Aon did not preserve its issue regarding segregation of attorney’s fees for Thomas’s breach of contract claim.”  Aon Risk Servs. Southwest v. C.L. Thomas, 2014 Tex. App. LEXIS 13638, 26-27 (Tex. App.–Corpus Christi/Edinburg Dec. 18 2014)

   And, as always, you have to raise your complaint in the trial court in order to preserve it for appeal:

Contract: “Mushtaha argues next that the evidence is factually insufficient because the contract is ambiguous, and when the contract is construed in his favor, the record shows that he did not fail to comply with it. Mushtaha believes that the contract is ambiguous because the words “industry specifications” and “open” [*9]  valleys are undefined and capable of more than one reasonable interpretation. Even if we assumed that the contract were ambiguous, Mushtaha’s understanding of the parties’ intent was not conclusively established, and Mushtaha neither requested nor submitted to the jury any fact question regarding the issue of intent. Mushtaha waived any complaint about the contract’s alleged ambiguity.”  Mushtaha v. Tile Roofs of Tex., 2014 Tex. App. LEXIS 13254, 8-9 (Tex. App.–Houston [14th Dist] Dec. 11 2014)

Default Judgment: “Nevertheless, Silva contends that she has a meritorious defense under Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), thereby precluding a default judgment because she was “acting under the mistaken belief that Appellant Pham could represent the couple as a pro se attorney and that his answer was sufficient to prevent default of both Appellants.”  However, Silva did not raise this issue in the trial court in her motion for new trial, nor did she and present evidence in support of her claim of a meritorious defense. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 928 (Tex. 2009) (stating [*16]  motion for new trial “sets up a meritorious defense if it alleges facts which in law would constitute a defense to the plaintiff’s cause of action and is supported by affidavits or other evidence providing prima facia proof that the defendant has such a defense”). Thus, Silva has failed to preserve error as to this complaint. See Tex. R. App. P. 33.1(a); see also Gammill v. Fettner, 297 S.W.3d 792, 802 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding defendant’s failure to raise Craddock argument in motion for new trial failed to preserve argument for appellate review).”  Long Pham v. Harris County Rentals, 2014 Tex. App. LEXIS 13599, 15-16 (Tex. App.- Houston [1st Dist.] Dec. 18, 2014)

Interpreter: “The issue of the interpreter’s competence was not raised with the trial court and is, therefore, waived.”  M.M.V. v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 13315 (Tex. App.–Houston [1st Dist.] Dec. 11, 2014)

Jury Argument: “We first note that no objections were lodged in the trial court. HN6As a general rule, a party must preserve error as to improper questions or argument by lodging a timely objection which is overruled. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013); Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). Furthermore, the complaining party must not have invited or provoked the improper argument. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979).  Here, Kim and John’s counsel made no objections to the questions about Kim’s visa or the couple’s immigration status, nor did he object to any jury argument about the same. In fact, the majority of the questions Kim and John complain of on appeal occurred during cross-examination, after their counsel had questioned them on the same issues. In light of this, we cannot conclude Kim and John have preserved these complaints.”  Kim v. Pak, 2014 Tex. App. LEXIS 13066 (Tex. App.–Dallas Dec. 8, 2014)

Jury Charge: “An appellate court will not reverse a trial court’s judgment for failing to submit a jury question unless it was requested in writing in substantially correct wording by the party complaining of the judgment or, with respect to a question upon which the opposing party relied, the complaining party made a timely, specific objection to the omission. Tex. R. Civ. P. 278; see Morris v. Holt, 714 S.W.2d 311, 312 (Tex. 1986). Here, there is no evidence in the record that Appellants requested a jury question on the existence of an attorney-client relationship. Rather, Appellants’ took the contrary position at the jury charge conference, apprising the trial court that “it’s best not to submit the question as to whether or not the attorney agreed to—to represent the—client in that particular transaction.” Accordingly, we conclude Appellants have failed to preserve error for these issues [*13]  in the trial court. See Tex. R. Civ. P. 278.; see also Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 101 (Tex. App.—Eastland 2006, pet. denied) (party may not complain of invited charge error on appeal).”  Hughes v. Pearcy, 2014 Tex. App. LEXIS 13059, 12-13 (Tex. App.–Austin Dec. 8, 2014)

Jury Charge: “Irika and Prosperity contend on appeal that they submitted a proposed jury charge that would have properly instructed the jury on the law of negligence pursuant [*22]  to section 905(b), including instructions that appellants do not owe a duty to provide a seaworthy vessel, must have warned of a hazard on the vessel or a hazard with respect to the vessel’s equipment only under certain circumstances, owe a different standard of care after stevedoring operations begin, and only owe a duty to intervene under certain circumstances. Appellants’ proposed charge was not marked “refused” and the record does not demonstrate that the trial court otherwise ruled on the proposed charge.n6 Accordingly, our review is limited to whether or not the objections voiced by appellants were sufficient to preserve the alleged error and whether or not the trial court instructed the jury correctly on the controlling law.”  Irika Shipping S.A. v. Henderson, 2014 Tex. App. LEXIS 13550, 21-22 (Tex. App.–Beaumont Dec. 18, 2014)

Jury Charge: “On appeal, the appellants’ first argument regarding alleged jury charge error is that the trial court erred in defining “Negligence” because for “purposes of comparative fault under § 905(b) cases, the conduct of a longshoreman is not measured against that of an ordinary person,’ but is instead ‘adjudged from the standpoint of a reasonable longshore worker under the circumstances.'” By instructing the jury to measure the conduct of Henderson against that of a person of ordinary prudence rather than that of a reasonable longshore worker, according to appellants, the charge fails to instruct the jury correctly and lowers the standard of care by which Henderson’s conduct should be measured. Second, appellants argue that the charge omits the recognition that appellants do “not owe [*27]  plaintiff the duty to provide a seaworthy vessel” and that it fails to include language that a vessel is only liable if it is “guilty of negligence that was the legal cause of the plaintiff’s injury.” Third, appellants argue that the trial court erred in failing to submit “any discussion of the vessel’s corollary duty to warn of latent hazards under the turnover duty, which contains the open and obvious defense.” However, appellants failed to make any of these objections to the charge and never brought the issues to the trial court’s attention. Accordingly, we conclude that the Vessel Defendants did not preserve these complaints for review on appeal, and we overrule each of these points. See Tex. R. App. P. 33.1(a).”  Irika Shipping S.A. v. Henderson, 2014 Tex. App. LEXIS 13550, 26-27 (Tex. App. Beaumont Dec. 18, 2014)

Outcry: “In her sixth issue, R.S. argues that the trial court erred by admitting the hearsay statement of the child without conducting a hearing pursuant to Section 104.006 of the Texas Family Code, and that error was harmful. A statement made by a child [*17]  younger than twelve years that describes alleged abuse against the child is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability and the child testifies or is available to testify or the court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the child’s welfare. See Tex. Fam. Code Ann. 104.006 (West 2014). . . . R.S. admits in her brief that, at trial, her counsel did not object to the mention of the alleged outcry statement. . . . in order to preserve this complaint for appeal, R.S. was required to present her request to the trial court and to obtain a ruling on that request. See In re L.M., 2012 Tex. App. LEXIS 2720, 2012 WL 1123898, at *2. She did not do so and, therefore, has waived this issue on appeal.”  In the Interest of E.R., 2014 Tex. App. LEXIS 13124, 16-18 (Tex. App.–Tyler Dec. 10, 2014)

Parent Child Relationship: “In issues one through three, appellant contends the evidence is legally and factually insufficient to support the trial court’s findings that termination is proper under Texas Family Code section 161.001(1)(D), (E), and (O). In issue four, appellant challenges the trial court’s finding that termination is in the children’s best interest. [*17]  To challenge the factual sufficiency of the evidence supporting a jury finding, the appealing party must have first asserted the point in a motion for new trial. Tex. R. Civ. P. 324(b)(2); In the Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003). To preserve a legal sufficiency challenge for appeal, the appealing party must have asserted the point by (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991).  The record does not indicate that appellant filed a proper motion or lodged a proper objection raising her sufficiency challenges.”  G.L.K., 2014 Tex. App. LEXIS 13233, 16-17 (Tex. App.–Beaumont Dec. 11 2014)

Parent Child Relationship: “C.L.H. did not file a motion for instructed verdict regarding the evidence to support the jury’s findings on best interest. Instead, she made an oral motion for a directed verdict, alleging that the Department did not prove, by clear and convincing evidence, each element of “the endangerment of the child.” Nor did she file a motion for new trial or any of the other motions necessary to preserve her legal sufficiency challenge. Therefore, she has waived the right to complain about the legal sufficiency [*3]  of the evidence to support the jury’s finding that termination was in the best interest of the child. . . . [Furthermore] C.L.H. did not file a motion for new trial. Therefore, she has waived the right to complain about the factual sufficiency of the evidence to support the jury’s finding that termination was in the best interest of the child.”  In the Interest of A.H., 2014 Tex. App. LEXIS 13130, 2-3 (Tex. App.– Tyler Dec. 10, 2014)

Recusal: “In his [*15]  motion to recuse and his statements at the recusal hearing, Fox asserted that these events occurred before the hearing in his case started, but Fox did not assert that the events occurred when the court was not in session. On the contrary, Fox stated in his motion to recuse that these events occurred “in open court,” which means that the court was in session. See BLACK’S LAW DICTIONARY1123 (8th ed. 2004) (defining “open court” as “A court that is in session . . .”). The alleged events described in Fox’s motion to recuse show that Judge Warne  and Fox were in the courtroom of the trial court when these events began, and, at all times, Judge Warne  was acting in her capacity as presiding judge of that court.  To the extent Fox argues that Judge Warne ‘s alleged bias, prejudice, or partiality arose from an extrajudicial source because court was not in session at the time of these events, Fox failed to preserve error in the trial court regarding this contention.”  Fox v. Alberto, 2014 Tex. App. LEXIS 13250, 14-15 (Tex. App.–Houston [14th Dist.] Dec. 11 2014)

Service: “The Trust also argues that service was proper under section 5.201 of the business organizations code because the Bank is a “filing entity or a foreign filing entity . . . [that] fails to appoint or does not maintain a registered agent in this state.” See Tex. Bus. Orgs. Code Ann. § 5.201 (West 2012). But the Trust did not rely on this provision for serving the Bank and did not raise this argument below. See Tex. R. App. P. 33.1. Additionally, the petition does not contain allegations that the Bank is a “filing entity or a foreign filing entity” to which section 5.201 applies.”  Bank of N.Y. Mellon v. Redbud 115 Land Trust, 2014 Tex. App. LEXIS 13050 (Tex. App.–Dallas Dec. 5, 2014)

Testimony: “Because Kimberly’s attorney did not assert at trial that Dr. Wilbanks’s testimony was substantially more prejudicial than probative, this assertion was waived on appeal.”  In the Interest of A.J.H., 2014 Tex. App. LEXIS 13068 (Tex. App.–Amarillo Dec. 8, 2014)

Parent Child Relationship: “Appellant never objected to the lack of a bench warrant for his personal appearance at the hearing, nor did he inform the trial court that he was unable to adequately follow the proceedings. The record [*5]  shows that appellant occasionally had trouble hearing the proceedings. But it also shows that when appellant asked for a question to be repeated, he was able to answer it the second time. Additionally, there are long periods of time in his own testimony that he was able to respond to a series of questions without asking for them to be repeated, and his answers are responsive to the questions asked. The trial court was diligent in reminding the attorneys to speak into the microphone so that appellant could hear, and appellant was able to engage in colloquy with the court as well. Accordingly, we conclude and hold that to the extent this issue was preserved or did not need to be preserved, the record does not show such an unfairness in the proceedings as to undermine appellant’s right to due process.”  In the Interest B.S., 2014 Tex. App. LEXIS 13561, 4-5 (Tex. App.–Fort Worth Dec. 18, 2014)

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

December 5, 2014

Dear All:

The one case the last couple of weeks in which a court held error was preserved does not provide a lot of guidance about what made the objection specific enough:

Expungement: “In three issues, the State argues that the trial court abused [*3]  its discretion by ordering an expunction for the possession-of-marijuana offense arising out of N.R.J.’s arrest because he was also arrested for and finally convicted of DWI, because he admitted his guilt to the possession-of-marijuana offense in the plea in bar, and because the possession offense remained pending.n1  FOOTNOTES  n1 Contrary to N.R.J.’s argument on appeal, a review of the State’s answer and its arguments at the expunction hearing show that the State preserved these issues in the trial court. See Tex. R. App. P. 33.1(a).”  State v. N.R.J., 2014 Tex. App. LEXIS 12788, 2-3 (Tex. App.–Fort Worth Nov. 26, 2014)

    There were a few cases which remind us that some issues, like jurisdiction and legal sufficiency of the evidence to support a ruling in a trial to the court may be raised for the first time on appeal. Sometimes the legal sufficiency complaint can come up in some unusual settings:

Affidavits: “An objection that an affidavit is conclusory is an objection to the substance of the affidavit that can be raised for the first time on appeal. See Skelton v. Comm’n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Lenoir did not have to obtain a ruling on her objections to preserve this issue for appeal.”  Lenoir v. Marino, 2014 Tex. App. LEXIS 12703 (Tex. App.–Houston [1st Dist.] Nov. 25, 2014)

Jurisdiction: “In Diffley’s first issue, he argues the justice court and county court lacked jurisdiction because evidence of a title dispute was so intertwined with the question of possession that it deprived them of jurisdiction.n2 Whether a court has subject-matter jurisdiction is a question of law that we review de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject-matter jurisdiction can be raised at any time, even for the first time on appeal; the parties cannot waive it. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).”  Diffley v. Fannie Mae, 2014 Tex. App. LEXIS 12798 (Tex. App. Fort Worth Nov. 26, 2014)

Motion for New Trial: “Gustafson asserts that although he failed to offer testimony or other admissible evidence at the hearing in support of his allegations of jury misconduct, this failure was cured by Zimmer’s lack of objection to the consideration of the issue based on affidavits and on its failure to seek a ruling on its evidentiary objections to his affidavits. He argues “[Zimmer] never objected that the affidavits attached to Gustafson’s motion for new trial do not constitute evidence upon which the trial court could rely.” In so arguing, Gustafson ignores his obligation to satisfy his affirmative burden of proving jury misconduct.  The party asserting [*17]  jury misconduct must prove in an evidentiary hearing in open court that misconduct occurred and that it was material. See Tex. R. Civ. P. 327. Gustafson offered no evidence at the hearing on the motion for new trial. The juror affidavits served only to demonstrate Gustafson had sufficient evidence of jury misconduct to warrant an evidentiary hearing. See Elston, 596 S.W.2d at 217. Until Gustafson made a prima facie evidentiary showing at the hearing on juror misconduct, however, Zimmer had no burden to carry and no obligation to object that Gustafson had not carried his burden of proof. Cf. TEX. R. APP. P. 33.1(d) (in nonjury case, complaint of legal insufficiency may be made for first time on appeal). We conclude the trial court abused its discretion in granting new trial based only on affidavit evidence of juror misconduct.”  In re Zimmer, Inc., 2014 Tex. App. LEXIS 12662, 16-17 (Tex. App.–Dallas Nov. 21, 2014)

    The basis for the relief you seek must have been raised in the trial court–not some other, distinct basis:

Settlement Credit: “During oral argument in this case, both sides represented that no request, objection, or motion was made in the trial court seeking application of a settlement credit based on the common-law one-satisfaction rule as opposed to provisions of Chapter 33.n19 Moreover, the trial judge explained on the record below that he rejected a settlement credit in this case not based on any language in the settlement agreements, but based on the legal arguments supplied by Shaun and Zhou’s counsel, i.e., that Chapter 33 did not apply because there was no finding of proportionate responsibility in this case. Accordingly, we find that the question of whether the common-law one-satisfaction rule entitled Nick and Moersen to a settlement credit in this case was not preserved for appellate review.”  White v. Zhou Pei, 2014 Tex. App. LEXIS 12970 (Tex. App.–Houston [14th Dist.] Dec. 4, 2014)

    The record must support the objection you present to the court of appeals:

Evidence: “Badall did not present to the trial court a settlement agreement or any evidence of the existence of a settlement agreement between any of the Durgapersads and the hospital. Thus, we conclude that Badall did not preserve his complaint that the trial court improperly excluded evidence of a settlement agreement.”  Badall v. Durgapersad, 2014 Tex. App. LEXIS 12877 (Tex. App.–Houston [1st Dist.] Dec. 2, 2014)

Evidence: “Badall argues that he should have been permitted to introduce Rukmin’s video-recorded statement for impeachment purposes. However, he has not clearly identified which video-recorded statement he is referring to, and he produced no such statement to be considered by the trial court. Thus, we conclude that Badall did not preserve his complaint that the trial court improperly excluded evidence of the video-recorded statement that allegedly would have impeached Rukmin’s testimony.”  Badall v. Durgapersad, 2014 Tex. App. LEXIS 12877 (Tex. App.–Houston [1st Dist.] Dec. 2, 2014)

Jury fee: “However, Mother does not cite to the record respecting payment of the jury fee. See Tex. R. App. P. 38.1(i). Further, there is no notation of payment of a jury fee on the docket sheet. Any jury fee paid is required to be noted on the docket sheet by rule 216(b). See Tex. R. Civ. P. 216(b) ( “The clerk shall promptly enter a notation of the payment of such fee upon the court’s docket sheet.”). Additionally, there is no documentation or entry in the bill of costs showing payment of the charges,n6 nor is there other indication in the record that a jury fee was [*23]  paid or that Mother was excused from paying such fee. . . On this record, we conclude Mother has not demonstrated [*24]  reversible error respecting denial of a jury trial.”  In the Interest of M.N.M., 2014 Tex. App. LEXIS 12853, 22-24 (Tex. App.–Dallas Dec. 1, 2014)

    You must obtain a ruling on your objection:

Best Evidence: “n1 Tatsch’s affidavit states “[t]he [truck] came with a 5 year/100,000 miles Cummins Diesel Engine Limited Warranty that covered the engine and fuel injectors.” Admittedly, Chrysler objected to this summary judgment evidence in the trial court, claiming it violated the best evidence rule. See Tex. R. Evid. 1002. However, the trial court never explicitly ruled on this objection, and had little reason to because Chrysler attached a copy of the actual warranty to its own court documents, and a ruling on a motion for summary judgment is not an implicit ruling on objections to the proffered summary judgment evidence. See Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.—San Antonio 2000, no pet.). “Pursuant to rule 33.1, the party objecting to summary judgment evidence has the burden to obtain a ruling on that party’s objections.” Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 99 (Tex. App.—Dallas 2010, pet. denied); see Tex. R. App. P. 33.1. Because Chrysler did not obtain a ruling on its objection to Tatsch’s affidavit, and the contents of the engine warranty are not disputed on appeal, we consider this portion of Tatsch’s affidavit as proper summary judgment evidence.”   Tatsch v. Chrysler Group, LLC, 2014 Tex. App. LEXIS 12910 (Tex. App.–San Antonio Dec. 3, 2014)

Discovery: “Appellant asserts that the trial court refused to hear or failed to grant her motion to compel discovery prior to ruling on the motion for summary judgment. Appellant has not directed us to, nor have we found, an order in the [*12]  record in which the trial court overruled Appellant’s motion to compel discovery. Therefore, Appellant is correct in that the trial court did not rule on her motion. However, Appellant has also not shown us where in the record the trial court refused to rule on her motion. The motion was not set for a hearing, and Appellant did not raise the motion at the hearing on the motion for summary judgment. Because Appellant has not shown that the trial court refused to rule, she has waived her complaint on appeal. See Tex. R. App. P. 33.1(a)(2)(B).”  Lewis v. Ally Fin. Inc., 2014 Tex. App. LEXIS 13004 (Tex. App.–Eastland Dec. 4, 2014)

Hearsay: “In this case, Appellant objected to the affidavits in her responses and complained about the affidavits at the summary judgment hearing, but she never asked the trial court for a ruling. The trial court [*13]  must rule on a hearsay objection for that issue to be preserved for appellate review. Thompson v. Chrysler First Bus. Credit Corp., 840 S.W.2d 25, 28 (Tex. App.—Dallas 1992, no writ). Appellant waived her complaints unless the trial court expressly or implicitly ruled on the objections or unless the trial court refused to rule and she objected to the court’s refusal to rule. Albin, 97 S.W.3d at 661. Appellant does not direct us to any part of the record that shows that the trial court overruled her objections. Appellant also did not outline for the trial court the specific portions of the affidavits that contained objectionable hearsay. Appellant has failed to preserve error.”  Lewis v. Ally Fin. Inc., 2014 Tex. App. LEXIS 13004 (Tex. App.–Eastland Dec. 4, 2014)

    And, if you fail to raise an issue in the trial court, you will not have preserved it for appeal:

Affidavits: “Although Cruz raised various objections to the affidavits, he did not assert they were never introduced into evidence. Cruz, therefore, failed to preserve this complaint for appellate review. See Tex. R. App. P. 33.1.”  Cruz v. Van Sickle, 2014 Tex. App. LEXIS 12929 (Tex. App. Dallas Dec. 3, 2014)

Attorney’s Fees: “At the bill of review hearing, Ritika’s attorney requested to offer testimony in narrative form to prove up her attorney’s fees. Ritika’s attorney testified that she had accrued $24,000 in attorney’s fees, charging $250 per hour for her time and $90 per hour for her paralegal’s time. She stated that she had expended ninety-seven hours on the case, explained the type of legal work she performed, and testified that she believed the fees were reasonable and necessary. She further testified that $5,500 of the $24,000 was paid to James, Ritika’s expert witness. Linus’s attorney was then afforded the opportunity to cross-examine Ritika’s attorney. Linus’s attorney asked Ritika’s attorney to restate her total bill. Linus’s attorney then stated, “And that is including the expert [*31]  fees. Okay. I have no questions.” Because Linus did not object to Ritika’s method for calculating attorney’s fees, the issue is not preserved for our review. See Tex. R. App. P. 33.1;”  Dias v. Dias, 2014 Tex. App. LEXIS 12676, 30-31 (Tex. App.–Corpus Christi Nov. 25, 2014)

Constitutional Issues: “Appellant complains in her second and seventh issues that the trial court allowed Ally Financial  to violate her constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Ally Financial’s  claims in this case were for breach of contract and foreclosure of a security interest and were brought in a civil suit. We note that none of the constitutional claims, except for a reference to the right to confrontation, were raised at the summary judgment hearing and that none of the constitutional claims were included in her responses to Ally Financial’s  motion for summary judgment.”  Lewis v. Ally Fin. Inc., 2014 Tex. App. LEXIS 13004 (Tex. App.–Eastland Dec. 4, 2014)

Contracts: “The Developers next assert that the language in the contract limited the survival of any and all complaints about the contract, including the prepaid fee methodology, to a period of one year after Closing,n5 and therefore, Classic’s claims are time barred. This assertion however was not pleaded nor brought forth at trial and hence is not preserved for our review. Tex. R. App. P. 33.1. The final portion of Developers’ first issue is overruled.”  Forman v. Classic Century Homes, Ltd., 2014 Tex. App. LEXIS 12986 (Tex. App.–Fort Worth Dec. 4, 2014)

Evidence: “Badall argues, first, that the Durgapersads failed to provide any information about their settlement with the hospital during discovery. However, he did not present this argument to the trial court. Thus, this complaint is waived. See Tex. R. App. P. 33.1;”  Badall v. Durgapersad, 2014 Tex. App. LEXIS 12877 (Tex. App.–Houston [1st Dist.] Dec. 2, 2014)

Family Law: “Linus also contends that Ritika was not entitled to expert witness fees because her expert, Linda James, was not properly qualified and because expert fees are not available in a divorce case.5 While Linus argued during the bill of review hearing that the expert testimony was not admissible, he did not argue that expert fees were not available during the hearing on the bill of review or in his motion for new trial. As noted above, Ritika’s lawyer, during her testimony on attorney’s fees, specifically factored expert fees into her calculation of attorney’s fees, and Linus declined the opportunity to object either on the basis that expert fees were not available as a matter of law or that James was not properly qualified. Moreover, Linus did not argue that expert fees were not available in his motion for new trial. Accordingly, Linus did not preserve these issues for our review. See Tex. R. App. P. 33.1.”   Dias v. Dias, 2014 Tex. App. LEXIS 12676, 30-31 (Tex. App.–Corpus Christi Nov. 25, 2014)

Family Law: “Moreover, as stated, both [*8]  parties at trial insisted that they had no interest in any items then in the possession of the other party; the only dispute was ownership of the house.n6 Indeed, at no point in the trial court proceedings did Devonia request any additional personal property or cash be awarded to her or argue that there was any unfairness in the division of the personal property. See Tex. R. App. P. 33.1(a) . . . Devonia specifically did not raise this issue in her pleadings, during trial, or by filing a motion for reconsideration or a new trial. Accordingly, the values listed in Devonia’s Inventory and Appraisal do not establish that the trial court abused its discretion.”  Slater v. Slater, 2014 Tex. App. LEXIS 12696, 7-8 (Tex. App.–Houston [14th Dist.] Nov. 25, 2014)

Notice: “To preserve a complaint of untimely notice under rule 21a, the complaining party must object under that rule, request additional time to prepare for the hearing, [*17]  and obtain a ruling by the court on each objection or request. Tex. R. App. P. 33.1(a)(1); Prade v. Helm, 725 S.W.2d 525, 526-27 (Tex. App.—Dallas 1987, no pet.); In re R.A., 417 S.W.3d 569, 581 (Tex. App.—El Paso 2013, no pet.); see also Low v. Henry, 221 S.W.3d 609, 618 (Tex. 2007). Because the Hollands did not raise any complaint regarding notice under rule 21a, or otherwise, any error is waived.”  Holland v. Friedman & Feiger, 2014 Tex. App. LEXIS 12892, 16-17 (Tex. App.–Dallas Dec. 2, 2014)

Sanctions: “Shaun and Zhou’s counsel further argue that the trial court may not sanction them under its inherent powers without first making a finding of bad faith. See id. Shaun and Zhou’s counsel, however, cite no place in the record where they made this complaint in the trial court; it is therefore waived. See Tex. R. App. P. 33.1;”  White v. Zhou Pei, 2014 Tex. App. LEXIS 12970 (Tex. App.–Houston [14th Dist.] Dec. 4, 2014)

Texas Citizens Participation Act: “Alternatively, the Law Firm argues the court should allow the late filing [of its motion to dismiss] under Section 27.003(b) “[t]he court may extend the time to file a motion under this section on a showing of good cause.” Tex.Civ.Prac.&Rem.Code Ann. § 27.003(b). A careful review of the record, however, indicates the Law Firm neither, orally or by written motion, requested an extension of the time to file their Motion. Thus, without a request and a ruling, this issue has not been preserved for review. See Tex.R.App.P. 33.1(a); Check, 438 S.W.3d at 836.  The Law Firm fails to acknowledge the result such a holding would create. If we were to adopt the position that any subsequent filed document meets the definition of “legal action,” it would then create an unending opportunity to file a motion to dismiss which would ultimately defeat the purpose of the sixty day deadline. The Law Firm’s issue is overruled.”  Miller Weisbrod, L.L.P. v. Llamas-Soforo, 2014 Tex. App. LEXIS 12745 (Tex. App.– El Paso Nov. 25, 2014)

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

Copyright 2014

November 23, 2014

Dear All:

Pay particular attention to the Jamshed case below on attorney’s fees.  It deals with proving the reasonableness and necessity of attorney’s fees under Chapter 38 by making an affidavit under Tex. Civ. Prac. & Rem. Code Ann. § 18.001.   I think the point of that case, for purposes of this paper, is this: if the other side has asserted a claim for attorney’s fees, and thirty days before evidence begins that party serves you with an affidavit allegedly proving up its fees, you need to immediately read and follow the directives of Section 18.001–or you might be surprised to find out that the other side already has enough evidence to support an award of fees.

Here is a helpful case to read on preserving jury charge error.  Both the majority (which held error was preserved) and the dissent weighed in heavily on whether the Appellant had preserved error as to the charge, and once again remind us the difficulty of this area, in practice:

Jury Charge: “After the parties rested, the court held an informal charge conference. During the informal conference, Dr. Benge asked for the following [*60]  instruction: ‘You are instructed that in deciding whether any defendant was negligent, you cannot consider what the defendant told, or did not tell, the plaintiff about the resident physician being involved with the surgery.’  . . . . During the formal charge conference, Dr. Benge objected to the broad-form liability question as follows: ‘[D]efendants object to Question Number 1, negligence, [*61]  because the broad-form submission allows the jury to base its finding on a violation of informed consent . . . .’ The objection was overruled. In an effort to reduce the possibility that the jury would assign liability for failing to disclose the resident’s involvement, Dr. Benge requested the same instruction that he had requested during the informal charge conference. The requested instruction was refused.  Dr. Benge specifically objected to the broad-form nature of the liability question and advised the trial court that a liability finding could be based on the informed consent theory that Williams presented. Subsequently, Dr. Benge offered an instruction that would have prevented the jury from finding negligence based on a failure to inform. While he did not cite Casteel, it was unnecessary for him to do so. Morrison, 381 S.W.3d at 536 . . . “Casteel error may be preserved without specifically mentioning Casteel.”); Thota, 366 S.W.3d at 691 (“[Appellant] did not have to cite or reference Casteel specifically to preserve the right for the appellate court to apply the presumed harm analysis . . . .”). His objection informed the trial court that the broad-form negligence question mixed general negligence and informed consent issues. His [*62]  proposed instruction attempted to carve out the informed consent issue from the broad-form negligence question. Dr. Benge, therefore, apprised the trial court of the error “such that the court [had] the opportunity to correct the problem.” . . . . And the instruction did so while allowing the jury to consider the evidence of Dr. Giacobbe’s inexperience: it only precluded a negligence finding based on what Williams was told about that experience. Thus, the jury could have relied on her experience not only in evaluating her conduct during the surgery, but also Dr. Benge’s supervision of her during the surgery. In short, Dr. Benge’s proposed instruction did not detract the jury from focusing on the claimed acts of negligence during and after the surgery.  We conclude that Dr. Benge’s complaints were sufficient to alert the trial court to the potential deficiency in the jury charge that set up a Casteel problem, merging valid and invalid theories of liability into a single, broad-form liability question.”  Benge v. Williams, 2014 Tex. App. LEXIS 12445, *60-62 (Tex. App.-Houston [1st Dist.] Nov. 18, 2014)

    A complaint must be timely made, or it will not be preserved:

Parent Child Relationship: “Finally, we turn to the constitutional issues. Two separate ICPC reports were prepared by the State of Pennsylvania, both refusing placement of SD with his father. Trial counsel for OL lodged objections as to hearsay and argued that the information reported was erroneous. He did not raise any constitutional objections. . . . While the issue was raised in the motion for new trial, it came too late. We overrule Issue One..”  O.L. v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 12272 (Tex. App.–El Paso Nov. 12, 2014)

   Then there are the standard litany of cases holding that, if we fail to assert out complaint in the trial court, we have failed to preserve the complaint for appeal:

Affirmative Defenses: “The record shows Appellant never pleaded or otherwise raised his ambiguity argument to the trial court. Additionally, there is nothing in the record to indicate that the trial court sua sponte considered whether the credit application was ambiguous. . . . Because Appellant failed to present this issue in the trial court, his complaint was waived. See Tex.R.App.P. 33.1(a).”  Jamshed v. McLane Express Inc., 2014 Tex. App. LEXIS 12203 (Tex. App.–El Paso Nov. 7, 2014)

Attorney’s Fees: “Lastly, Appellant argues Hartnett failed to serve a copy of the attorney’s fee affidavit on Appellant at least thirty days before the day the trial court relied on it to render final judgment as required by section 18.001(d) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001(d) (West 2008). However, Appellant failed to raise this complaint in the trial court in either his “Objection to Plaintiff’s Application for Attorneys’ Fees to Be Included in Final Judgment” or motion for new trial; thus, it is waived on appeal. See Tex.R.App.P. 33.1(a)(1)(A).”  Jamshed v. McLane Express Inc., 2014 Tex. App. LEXIS 12203 (Tex. App.–El Paso Nov. 7, 2014)

Attorney’s Fees: “In his third issue, Drake argues that the trial court erred by not reviewing caselaw related to assessing attorneys’ fees against indigents and by not ordering Chase to provide him with copies [*8]  of cases that it had in its possession. Drake is apparently referring to an off-the-record exchange that occurred at the hearing on his motion to reconsider. Drake failed to preserve this issue for appeal because there is no record of the purported exchange. See Tex. R. App. P. 33.1(a) (requiring timely, specific objection and ruling on record to preserve error). We overrule Drake’s third issue.”  Drake v. Chase Bank, 2014 Tex. App. LEXIS 12572, 7-8 (Tex. App.– Fort Worth Nov. 20, 2014)

Contract: “Clearly, Energico did not preserve for our review its appellate argument that the trial court erred to enter judgment on Cactus’s counterclaim based on evidence that Cactus’s work on the well was “without value and worthless” and not performed in a good and workmanlike manner.n7 This argument is raised for the first time on appeal and cannot be grounds to reverse the judgment.”  Cactus Well Serv. v. Energico Prod., 2014 Tex. App. LEXIS 12573 (Tex. App.–Fort Worth Nov. 20, 2014)

Expert Witnesses: “In issue three, Slama contends the trial court abused its discretion by admitting Dr. Self’s testimony about the report of Dr. Woodrick, a non-testifying expert, because Dr. Self “did not rely on Woodrick’s out-of-court statements in forming his opinions.” According to Slama, “Woodrick’s out-of-court statements were actually admitted and used as substantive evidence in violation of the hearsay rule.” In issue four, Slama maintains the trial court’s admission of this evidence was fundamental error that deprived him of a fair trial. . . . [Texas] Rule [of Evidence] 705 states that if otherwise inadmissible evidence relied on by an expert is disclosed to the jury, the court must give the jury a limiting instruction [*9]  upon request. . . . It is presumed the jury followed the court’s limiting instructions. Day, . . . Slama did not object to the trial court’s limiting instruction given during Dr. Self’s testimony, did not request a different or additional instruction, and did not object to the limiting instruction contained in the jury charge. . . . Relying on cases from other jurisdictions, Slama argues on appeal that his hearsay objections to Woodrick’s “out-of-court statements” also preserved Slama’s claim that the statements were not “basis” evidence, and that he therefore preserved the argument which he raises for the first time on appeal. . . . Slama did not specifically make a Rule 705 objection to Self’s testimony regarding his reliance on Woodrick’s report and, we conclude he did not preserve his objection. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a).”  In re Slama, 2014 Tex. App. LEXIS 12543, *4,  (Tex. App.–Beaumont Nov. 20, 2014)

Factual Sufficiency: “To the extent Energico argues that the jury’s no-excuse finding in the second question is against the great weight and preponderance of the evidence,n6 Energico has failed to preserve any error because it did not file a motion for new trial raising this issue. See Tex. R. Civ. P. 324(b)(3). To preserve any claim that the evidence was legally insufficient to support the jury’s answer to the second question, Energico was required to raise the issue in a motion for instructed verdict, a motion for judgment [*16]  notwithstanding the verdict, an objection to the submission of the question to the jury, a motion to disregard the jury’s answer to a vital fact question, or a motion for new trial.”  Cactus Well Serv. v. Energico Prod., 2014 Tex. App. LEXIS 12573, 15-16 (Tex. App.–Fort Worth Nov. 20, 2014)

Factual Sufficiency: “As we previously stated, Energico objected to the third question regarding Cactus’s counterclaim on the basis that Cactus failed to proffer any evidence that Cactus’s charges were reasonable and necessary. On appeal, Energico asserts that Cactus cannot recover the found damages on Cactus’s counterclaim because the evidence was legally and factually insufficient to show that “such charges were reasonable and necessary”; thus, we must disregard the jury’s finding as to the third question and render [*20]  a take-nothing judgment on Cactus’s counterclaim. By not filing a motion for new trial, Energico did not preserve its factual-insufficiency argument.”  Cactus Well Serv. v. Energico Prod., 2014 Tex. App. LEXIS 12573, 19-20 (Tex. App.– Fort Worth Nov. 20, 2014)

Fiduciary: “To the extent that Flagstar now seeks to assert that the evidence raised fact questions concerning the existence of an informal fiduciary relationship, we note that this issue was also not raised in the court below.”  Flagstar Bank, FSB v. Walker, 2014 Tex. App. LEXIS 12402 (Tex. App.-Dallas Nov. 14, 2014)

Judgment: “On appeal from the trial court’s judgment, Hidalgo asserts that (1) the trial court erred in rendering judgment based upon an immaterial answer to jury question number one because the evidence conclusively proved that Wolkowitz advised Hidalgo that she would reject a tender of the proper redemption amount, thus excusing Hidalgo from tendering this amount; and (2) by improperly demanding that certain [*4]  items be included in the redemption amount, Wolkowitz relieved Hidalgo from its duty to tender the redemption amount. Hidalgo contends that, as a matter of law, its obligation to tender the redemption amount to Wolkowitz was waived by Wolkowitz’s alleged insistence that inappropriate amounts be included in the calculation of the redemption amount, and therefore, the submission of jury question number one was improper.  Hidalgo did not raise any of these complaints in the trial court by means of a motion for instructed or directed verdict, an objection to the jury charge, a motion for judgment notwithstanding the verdict, or a motion to disregard any jury answer. The only post-trial motion that Hidalgo filed was its motion for new trial, but in this motion, Hidalgo did not raise any of its appellate arguments. . . . . Because Hidalgo did not voice any of its appellate complaints in the trial court and obtain an adverse ruling from the trial court, Hidalgo failed to preserve error in the trial court as to each of its appellate arguments.”  Hidalgo Int’l v. Wolkowitz, 2014 Tex. App. LEXIS 12528, 3-4 (Tex. App.– Houston [14th Dist.] Nov. 20, 2014)

Judicial Bias: “With regard to the trial court’s nine rulings pointed out by Mother, most appear to have been properly sustained and appear to relate to the trial court’s ruling [*100]  on the parties’ motions in limine with regard to any mention of the prior termination trial. However, because Mother did not make any offers of proof of what she proposed to show with the evidence excluded by the objections, cf. Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(2), and because Mother did not ensure that the court reporter recorded the bench conferences during which the objections were discussed, she cannot show us how these rulings constituted bias against her.”  P.M., 2014 Tex. App. LEXIS 12593, 99-100 (Tex. App.–Fort Worth Nov. 20, 2014)

Jury Argument: “Two of Tammy’s complaints of improper [*44]  jury argument were not raised in the trial court through a contemporaneous objection or a timely motion for an instruction or for a new trial. Specifically, there was no objection during closing argument that Kohler’s counsel engaged in improper jury argument concerning assumption of the risk or that any argument constituted an improper personal attack on Tammy’s counsel. She did not move for an instruction to the jury to disregard any such statements, and in her motion for new trial, she did not contend that any such statements constituted an incurable jury argument. These complaints accordingly have not been preserved for our review. See Tex. R. Civ. P. 33.1(a).  Tammy’s remaining complaint was raised through a contemporaneous objection, but the trial court did not rule on it, and Tammy did not raise the issue again in her motion for new trial. Thus, Tammy has failed to preserve her appellate complaint that Kohler’s counsel engaged in improper jury argument by suggesting that Tammy possessed a dive computer that was mentioned but not produced at trial.n22 See Tex. R. Civ. P. 324(b)(5).”  Dewolf v. Kohler, 2014 Tex. App. LEXIS 12431, 43-44 (Tex. App.–Houston [14th Dist.] Nov. 18, 2014)

Jury Findings: “Energico also did not preserve its appellate argument that the jury’s finding on the second question must be disregarded because it conclusively established that its performance was excused. Energico did not move for a directed verdict, object to the submission of the second question on Cactus’s counterclaim, move for judgment notwithstanding the jury’s finding on the second question, move to disregard the jury’s finding on the second question, or file a motion for new trial. As such, Energico’s arguments directed to the jury’s answer to the second question on Cactus’s counterclaim are not preserved.n8 To the extent Energico is attempting to complain that the jury’s answer to the second question regarding Cactus’s counterclaim conflicted with the jury’s finding that Cactus [*19]  breached the contract, Energico failed to preserve any error because it did not object to the conflict before the jury was discharged.”  Cactus Well Serv. v. Energico Prod., 2014 Tex. App. LEXIS 12573, 17-19 (Tex. App.–Fort Worth Nov. 20, 2014)

Parent Child Relationship: “With regard to the argument that the ICPC does not apply to parents, OL did not raise this issue in the trial court. . . . Thus, we cannot address whether the trial court interpreted the statute correctly.”  O.L. v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 12272 (Tex. App.–El Paso Nov. 12, 2014)

Parent Child Relationship: “OL challenges the legal and factual sufficiency of the evidence to support each of the statutory predicates for termination found by the jury as well as the finding of best interest. The Department correctly responds that he has failed to preserve error on these issues.  A legal sufficiency challenge to the jury’s verdict may be preserved by a motion for directed verdict, judgment non obstante veredicto, or to disregard jury findings.  . . . In the absence of one of these, a motion for new trial must raise the issue. A factual sufficiency point must be preserved in a motion for new trial. Tex.R.Civ.P. 324(b)(2)-(3). OL filed a motion for new trial, but did not raise a single complaint concerning the sufficiency of the evidence. ”  O.L. v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 12272 (Tex. App.–El Paso Nov. 12, 2014)

Promissory Notes: “The Adames contend that, knowing that the FDIC was investigating Shay Wallace, the loan officer with whom the Adames regularly dealt, Vista Bank nonetheless allowed Wallace to represent the bank in dealing with the Adames. The Adames point out that the FDIC ultimately and formally found that Wallace “engaged or participated in violations of the law or regulations, unsafe or unsound banking practices, and/or breaches of fiduciary duty as an institution-affiliated party” and prohibited him by order from participation in certain activities related to banking. Asserting that the continued dealing with Wallace was unethical, the Adames raise the issue of Wallace’s ineligibility on appeal. Again, though, the Adames failed to raise the issue until appeal; the FDIC “Order [*6]  of Prohibition from Further Participation” appears only in the Adames’ appendix on appeal. Consequently, we are constrained by general principles of error preservation as well as the well-established proposition that motions for summary judgment and responses to them “must stand or fall on the grounds expressly presented to the trial court.” See D.R. Horton-Tex., Ltd., 300 S.W.3d at 743; see also Tex. R. Civ. P. 166a(c) (HN2″Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). We cannot reach the merits of the issue raised and, therefore, must and do overrule it.”  Adame v. Vista Bank, 2014 Tex. App. LEXIS 12227, 5-6 (Tex. App.–Amarillo Nov. 10, 2014).

Summary Judgment: “By his first issue, Olson contends that the trial court should have ordered appellee to specifically perform on the contract by giving him the $100,467 in the form of the prior year’s salary. However, Olson did not move for summary judgment seeking specific performance in the trial court. Thus, we are unable to provide the relief requested. See Tex. R. App. P. 33.1 (establishing that trial court must make a ruling before issue is preserved);”  Olson v. Del Mar College, 2014 Tex. App. LEXIS 12602 (Tex. App. Corpus Christi Nov. 20, 2014)

Trial Court’s Comments: “Fitzpatrick complains about several comments the trial court made during a pretrial scheduling conference and during trial. According to Fitzpatrick, these comments revealed the trial court was biased against him and that it was biased in favor of the State. Fitzpatrick concludes several of the comments require that we conclude he was denied a fair trial before an impartial [*9]  tribunal. . . . To the extent the comments [made by the trial court at trial] can be construed as unduly critical of counsel’s tactics, any harm from the comments at issue could have been resolved when the comments occurred, had Fitzpatrick requested appropriate instructions about the comments which are the subject of Fitzpatrick’s complaints. By failing to timely object and request appropriate instructions in response to the comments when they were made, Fitzpatrick failed to preserve his complaints for review on appeal. See Tex. R. App. P. 33.1; . . . . Fitzpatrick also complains about several comments the trial court made during a pretrial scheduling conference. The comments that occurred at the [*11]  scheduling conference are not the type of comments that raise any question about the trial court’s qualifications to serve; rather, Fitzpatrick contends the comments reflect a bias that required the trial court to be recused. . . .  In Fitzpatrick’s case, the pretrial conference took place approximately seven months before trial. The record shows that Fitzpatrick failed to object when the comments occurred. Prior to trial, Fitzpatrick failed to file a motion asking that the trial court be recused. . . . We conclude the record shows that Fitzpatrick failed to preserve his complaints about the comments the trial court made during the scheduling conference for appellate review. See Tex. R. Civ. P. 18a(a), (b)(1)(A); Tex. R. Civ. P. 18b(e).”  In re Commitment of Fitzpatrick, 2014 Tex. App. LEXIS 12289, 8-11 (Tex. App. Beaumont Nov. 13, 2014)

Whistleblower Claims: “The rules Ellis refers to are contained in an excerpt of the hospital’s employee handbook, included in the record. But Ellis never identified which of these rules she claims were violated. The report of a Whistleblower Act claimant need not identify the statute, ordinance, or rule she believes was violated. . . . However, during the litigation the claimant must make that identification. . . . The specific law the claimant alleges was violated is critical to the trial court’s determination whether the report was made to an appropriate law [*8]  enforcement authority. . . .”A plaintiff appealing a dismissal of a Whistleblower claim for want of jurisdiction may not assert on appeal that the conduct described in the report violates a law not identified in the trial court.” Wilson, 376 S.W.3d at 327 (citing Tex. R. App. P. 33.1(a)). The laws Ellis identified in the trial court were assault, battery, negligence, and malpractice. She also mentioned unspecified violations of unidentified ethical standards.”  Ellis v. Lubbock County Hosp. Dist., 2014 Tex. App. LEXIS 12519, 7-8 (Tex. App.– Amarillo Nov. 19, 2014)

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

November 9, 2014

Dear All:

There is nothing much earth shattering about the cases the last two weeks.  That is how most of error preservation plays out–you have to timely raise it and get a ruling on it on the record and make it specific enough for the trial court to be aware what you’re complaining about.

Speaking of timeliness, that usually means before the trial court rules, and that rule applies in mandamus proceedings, just like it does in regular appeals:

Discovery: “The specific document requests at issue in this proceeding were not covered by real parties’ motion to compel. Yet real parties brought up the requests for consideration at the August 25 hearing before Garrett was required to respond to the requests. The third request for production was served five days before the hearing, so counsel for relators should have been aware of the specific requests. Counsel also was present at the hearing. But when counsel for real parties addressed the credit card records, relators’ counsel offered no resistance. There was no objection to the fact that this topic was not a noticed issue for the hearing, no objection to the requests being considered at that hearing, no objection to the substance of the requests, and no objection to the trial judge’s statements related to the requests (assuming her statements were a proper ruling). Although relators later objected to the requests in Garrett’s responses to the third request for production, these [*9]  objections were over two weeks after the trial court ruled on the issue. The judge has not been asked to rule on the objections raised in the third request for production, and she has not ruled on relators’ motion to quash the depositions by written questions or the protective order in which relators made the same objections.”  In re Greyhound Lines, Inc., 2014 Tex. App. LEXIS 11887, 8-9 (Tex. App. Dallas Oct. 29, 2014)

    Keep in mind that you have to get a ruling, on the record, to evidentiary objections–including written objections to summary judgment evidence:

Evidence:  “Although Bierwirth filed a motion to strike the [business records] affidavit on the day of trial, she failed to obtain a ruling on the motion. Moreover, the record does not reflect that she ever objected to the affidavit on substantive grounds, much less obtained a ruling. . . . The record shows only that Bierwirth filed a motion to strike the affidavit the morning of trial, asking the trial court to strike the affidavit ‘for undue and unnecessary surprise.’  It does not show that she obtained a ruling on the motion or that the county court refused to rule on the motion. Further, because there is no reporter’s record in this case, the record is silent as to whether AH4R actually relied upon the business records affidavit at trial. We therefore cannot say that the county court implicitly denied the motion. Thus, nothing in the record indicates that Bierwirth has preserved her complaints regarding the business records affidavit for appeal.”  Bierwirth v. AH4R I TX, LLC, 2014 Tex. App. LEXIS 11925, *13-16 (Tex. App.–Houston [1st Dist] Oct. 30 2014)

Hearsay:  “Gallardo argues in his brief that some of the evidence submitted by Tenants is incompetent. This includes the Tenants’ affidavits, two letters from Roman to Gallardo, and a city inspector’s report/complaint. Gallardo raised hearsay objections in the trial court to the city inspector’s report/complaint and to Roman’s letters, but he did not obtain a ruling on these objections.  A hearsay objection is a defect of form which must be preserved by obtaining an adverse ruling in the trial court. . . . The trial court’s order granting summary judgment in Gallardo’s favor is not an implicit ruling sustaining the hearsay objection. . . .  Consequently, Gallardo’s hearsay objections are waived.”  Hernandez v. Gallardo, 2014 Tex. App. LEXIS 11878, 5-6 (Tex. App. El Paso Oct. 29, 2014).

Summary Judgment Evidence:  “BOA made a number of written objections to certain evidence Johnson relied on in opposition to BOA’s first motion for summary judgment. However, BOA failed to obtain a ruling on these objections before the trial court entered judgment on this motion. . . . Because BOA did not obtain a ruling on its objections to Johnson’s summary judgment evidence, BOA waived its objections to the evidence. See Tex. R. App. P. 33.1(a).”  Johnson v. Bank of Am., N.A., 2014 Tex. App. LEXIS 11900, *9 (Tex. App.–Beaumont Oct. 30 2014).

    Sometimes, the ruling can be implicit–but it is always dangerous to fail to obtain an express ruling:

Sanctions: “Appellant also filed a motion to quash trial subpoenas and for protective order, objections to trial subpoenas, and motion for sanctions on February 20, 2013 and sought specific monetary sanctions against John and Andrea and their attorney. The trial court heard the motion on February 20, 2013, immediately prior to beginning the hearing on John and Andrea’s motion for sanctions, and quashed the complained-about [*17]  subpoenas, but granted no further relief. This ruling by the trial court constituted an implicit denial of the requested sanctions. See Tex. R. App. P. 33.1(a)(2)(A).”  Bertrand v. Bertrand, 2014 Tex. App. LEXIS 12040, 16-17 (Tex. App.–Dallas Nov. 4, 2014).

    Finally, if you do not raise a complaint in the trial court, you cannot pursue it on appeal–including objections as to the reliability of an expert’s testimony, and an improper jury argument which can be cured by an objection.

Causes of Action: “In another attempt to expand on her pleadings, the Investor argues that the Agents breached their fiduciary duties in two more ways: first, by guaranteeing a 20% return on investment, and second, by advising the Investor that she needed to be patient when her rental income was not being generated at the rate she expected. The Agents did not receive any notice that these theories would be tried, and in fact, they were never discussed at all during the hearing on the motion for directed verdict. The Investor cannot defeat a trial court’s directed verdict by attempting to establish new causes of action and new fact issues for the first time on appeal. See Tex. R. App. P. 33.1.”  Xu v. Lam, 2014 Tex. App. LEXIS 12130 (Tex. App.– Houston [14th Dist.] Nov. 6, 2014)

Expert Witness: “A no-evidence challenge asserting that an expert opinion is conclusory can be raised for the first time on appeal. City of San Antonio v. Pollock, 284 S.W.3d 809, 817 (Tex. 2009). An expert opinion is considered conclusory if it is essentially a “conclusion without any explanation.” See Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 & n.32 (Tex. 2008). “To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered.Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Without requiring a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist. Id. “[T]o prevent trial or appeal by ambush, . . . a complaining party must object to the reliability of scientific evidence before trial or when the evidence is offered.” Id. at 409-410.  Thus, while a no-evidence challenge asserting that an expert opinion is conclusory need not be raised at trial, a no-evidence challenge based on methodology or a lack of reliability must be raised before trial or when the evidence is offered. Pollock, 284 S.W.3d at 817. “When a scientific opinion is admitted in evidence without objection, it may be considered probative evidence even if the basis for the opinion is unreliable.” Id. at 818. “But if no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, [*7]  regardless of whether there is no objection.” Id.  Metro argues on appeal that the “issue in this case is whether there is more than a scintilla of evidence that supports a causal nexus between the event sued upon—the METRO bus and light rail collision—and . . . McChristian’s neck injuries.” Metro challenges the reliability of Dr. Reuben’s testimony; it argues that Dr. Reuben’s unreliable medical testimony was legally insufficient to support a finding that the Metro bus and rail accident was the cause of McChristian’s neck injury.  Metro did not challenge the reliability of Dr. Reuben’s expert testimony before or during trial. Metro therefore failed to preserve a reliability complaint for review on appeal, and we overrule its issue in that regard.”  Metro. Transit Auth. v. McChristian, 2014 Tex. App. LEXIS 11953, 5-7 (Tex. App. Houston 14th Dist. Oct. 30, 2014)

Expert Witnesses: “CCC’s third complaint about Holloway’s testimony, raised for the first time on appeal, was that he stated there was “no way of knowing” whether the concrete blocks were stacked in the appropriate sequence. We conclude this complaint about the testimony is waived for failure to raise it at trial because it would require evaluation of Holloway’s reasons for believing the lack of shear plates caused the collapse—an explanation that may have been provided at trial in the face of an objection, but which is absent from the record due to the lack of an objection. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (“[W]hen a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection [*17]  must be timely made so that the trial court has the opportunity to conduct this analysis.”); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 412 (Tex. 1998); see also TEX. R. APP. P. 33.1(a)(1) (“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 . . . .”). And finally, by failing to object to Holloway’s qualifications, CCC also waived that objection to his testimony. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 143-44 (Tex. 2004) (where pretrial motion to exclude expert’s testimony attacked reliability of opinions but not expert’s qualifications, objecting party did not preserve complaints regarding qualifications for appeal).”  CCC Group, Inc. v. South Cent. Cement, Ltd., 2014 Tex. App. LEXIS 11774, *16-17 (Tex. App–Houston[1st Dist] Oct. 28 2014)

Evidence: “The reporter’s record from the hearing on Christine’s motion to recuse reflects that, after Joseph made his opening statement, Judge Underwood obtained Joseph’s agreement that his opening statement told the court what the evidence would show and demonstrated the evidence that Joseph would put before the court. Judge Underwood then stated that, even if he accepted as true all of the evidence that Joseph described in his opening statement, that evidence would not provide any basis for granting [*23]  Christine’s motion to recuse. Judge Underwood announced at the end of the hearing that the motion to recuse was denied. At no time during the hearing did Christine attempt to offer evidence, ask for permission to offer evidence, or object to the trial court’s alleged refusal to receive evidence. We conclude that, during the recusal hearing, no complaint was made about any alleged failure by Judge Underwood to allow excerpts from a reporter’s record and deposition excerpts to be admitted into evidence, and thus error was not preserved as to the fifth issue.10 See Tex. R. App. P. 33.1(a);”  In re Estate of Gibbons, 2014 Tex. App. LEXIS 12031, 22-23 (Tex. App.–Houston [14th Dist.] Nov. 4, 2014)

Improper Jury Argument:  “Metro contends in its third issue that the trial court erroneously denied its motion for new trial because McChristian’s [*17]  trial counsel made a reference to “snake oil” in closing. Metro argues that referring to its counsel as a “snake oil” salesman is tantamount to saying Metro’s “counsel is a fraud and cannot be trusted or believed.” Metro did not object to McChristian’s closing argument but did file a motion for new trial arguing that McChristian’s jury argument was incurable. . . .To obtain a reversal of a judgment on the basis of improper jury argument, a party must establish (1) an error, (2) that was not invited or provoked, (3) that was preserved at trial by a proper objection, motion to instruct, or motion for mistrial, and (4) that was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the trial court. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979); . . . . We cannot conclude that this argument is one of the rare instances of improper argument that an instruction from the court or retraction of the argument could not have removed its effects or prevented the members of the jury from following their [*21]  oaths with proper instructions from the trial court. See id. at 680-81. We conclude that McChristian’s jury argument was not “so extreme that a ‘juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.'” Phillips, 288 S.W.3d at 883. We conclude that the trial court did not abuse its discretion in denying Metro’s motion for new trial with regard to its improper jury argument.”  Metro. Transit Auth. v. McChristian, 2014 Tex. App. LEXIS 11953, 16-17 (Tex. App.–  Houston [14th Dist.] Oct. 30, 2014)

Improper Jury Argument:  “At the outset of their argument, the Williamses contend that United adopted a strategy of attacking their counsel beginning in its opening statement when United told the jury that the Williamses’ “very clever” lawyers and “very clever and sneaky experts” had “manufactured a case.” The Williamses assert that this theme of encouraging the jury to question the integrity of their counsel continued in United’s closing argument, including when United accused their counsel of “piecing together half-truths.” The only complaint that has been preserved for review, however, is whether the portion of United’s closing argument quoted above constituted incurable jury argument. To the extent the Williamses contend that any other statements by United were improper or incurable argument, those complaints are not preserved for review because they were not objected to during trial and/or were not presented in the Williamses’ motion for new trial. See  [*5] Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 324(b)(5).”  Williams v. United Elec. Coop. Servs., 2014 Tex. App. LEXIS 12183, 4-5 (Tex. App. Waco Nov. 6, 2014)

Limitations: “Furthermore, Wen’s argument that the Hughes tolling doctrine precludes summary judgment was never presented to the trial court expressly by written answer or other [*10]  written response to Ahn’s motion. Thus, it is waived and cannot be considered on appeal as grounds for reversal. See Tex. R. Civ. P. 166a(c); Tex. R. App. P. 33.1(a);”  Bosheng Wen v. Kristopher Ahn, 2014 Tex. App. LEXIS 12148, 9-10 (Tex. App.–Houston [1st Dist.] Nov. 6, 2014)

Parent Child Relationship: “Mother asserts on appeal that the trial court erred in receiving and considering the testimony of Dr. Schutte, Mother’s evaluating psychologist, when he opined that Mother could not parent her children without additional support. She argues that this evidence should not be considered for any purpose because it is plain error, irrelevant, and in reasonable probability prejudicial to her. Mother specifically objects to Dr. Schutte’s conclusion that Mother’s parental abilities were negatively affected by her low or borderline I.Q. is “speculative, prejudicial, and bereft of methodological rigor.” . . . . Mother’s argument of “plain error” fails to cite to any state or federal statute or case to support her assertion that the trial court erred. Plain error is a federal doctrine in criminal cases that is codified in the Federal Rules of Criminal Procedure. See Fed.R.Crim.P. 52(b)(“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention”). Implicit in this argument is Mother’s tacit acknowledgement that she failed to object to the testimony that she now complains of. Our review of parental termination cases has failed to uncover any application of the “plain error” doctrine. Therefore, we decline to do so in this case. Mother failed to lodge the requisite objection and obtain a ruling thereon regarding the complaint that she now raises on appeal. Further, she was afforded the opportunity to cross examine Dr. Schutte extensively upon his conclusions and did so. Consequently, Mother has failed to preserve this complaint for our consideration.”  J.S. v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 11840, *22-23, 26 (Tex. App.–El Paso Oct. 29 2014).

Receivership: “In the instant case, the record does not reflect that Appellants objected in 2008 when the ancillary receivership expired and they did not object when the ancillary receiver filed his application to extend the receivership. Further, the trial court’s order granting the application recited that all attorneys of record were provided with notice of the hearing on the application to extend the duration of the ancillary receivership and “[n]o responses . . . were filed.” Appellants’ objection to the extension of the receivership raised for the first time on appeal is untimely.”  Unit 82 Joint Venture v. Int’l Commer. Bank of China, 2014 Tex. App. LEXIS 12080 (Tex. App.–El Paso Nov. 5, 2014)

Special Appearance: “In this case, none of Nash’s filings with the trial court or his argument before the [*10]  trial court at the hearing raised the contention that the severability of the motion to show cause permitted Nash to specially appear in the motion to show cause even though he had generally appeared in the probate proceeding. . . . . Accordingly, we conclude Nash did not preserve this argument for appellate review, and we do not address it.  Nash also argues the trial court erred by ruling on the special appearance before holding a hearing on the special appearance. Although Nash objected, belatedly, to the trial court considering the motion to show cause before the court had ruled on the special appearance, Nash did not object to the trial court’s ruling on the special appearance without a hearing. Accordingly, Nash did not preserve any error for appellate review. See Tex. R. App. P. 33.1. Although Nash noted in the fact statement of his appellant’s brief that the court ruled on the special appearance before holding a hearing on it, the first time on appeal that Nash contended the lack of a hearing was error was in his reply brief. Issues [*11]  may not be raised for the first time in a reply brief.”  Estate of Estate of Deuel-Nash, 2014 Tex. App. LEXIS 12042, 9-11 (Tex. App.–Dallas Nov. 4, 2014)

Summary Judgment: “In Issue Three, Cohen notes that Loya’s motion for partial summary judgment sought both the trial court’s declaration that Loya had no liability under the 1% Agreement after February 20, 2009, and dismissal of Cohen’s breach of contract claim. Cohen complains that Loya failed to meet its burden to present evidence that it had rescinded the 1% Agreement, and was no longer liable under the agreement nor benefitting from Cohen’s services after February 20, 2009. . . . Loya responds [*27]  that Cohen’s complaint was not raised in its response for consideration by the trial court. Cohen replies that it was Loya’s burden to demonstrate that it no longer reaped the benefits of the agreement as a component of proper termination, and argues that because Loya failed to carry that burden, Cohen had no duty to respond.  Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). Because these issues were not presented to the trial court in its summary judgment response, Cohen is not permitted to raise these arguments for the first time on appeal. See Tex. R. Civ. P. 166a(c); . . . .”  Fred Loya Ins. Agency, Inc. v. Cohen, 2014 Tex. App. LEXIS 12012, 26-27 (Tex. App. El Paso Oct. 31, 2014).

Summary Judgment Evidence:  “In Issue Four, Cohen . . .  complains that although the motion recites Martin’s deposition testimony that Cohen had not incurred any substantial expenditure in relation to his performance of the 1% Agreement, Loya failed to file the deposition excerpt as part of the summary judgment record. Accordingly, it argues that the absence of the excerpt in the record renders summary judgment improper. Moreover, it argues that had the excerpt been included as evidence, it is nevertheless silent as to whether Cohen incurred substantial expenditures in preparing for performance as opposed to expenditures incurred in relation to actual performance of the 1% Agreement.  In its motion, Loya recited five questions and answers in an excerpt attributed to Cohen’s deposition testimony, referring to them by page and line numbers, and identified the excerpt as being included in the same “Exhibit 2” presenting summary judgment evidence that contains Cohen’s “indefinite duration” testimony. However, the referenced pages are not included in that exhibit [*29]  to the motion.  Loya argues that although the copies of the deposition excerpts were inadvertently omitted from the summary judgment exhibit and constitute “specific reference(s) to the discovery,” Cohen’s complaints cannot be sustained because it failed to raise the issue in the trial court. See Tex. R. Civ. P. 166a(c); . . . . Here, the trial court had before it the recited language of the referenced deposition testimony, as well as references to the page and line numbers where that evidence [*30] could be found in the unfiled discovery, and Cohen failed to complain about that evidence in the trial court.”   Fred Loya Ins. Agency, Inc. v. Cohen, 2014 Tex. App. LEXIS 12012, 27-30 (Tex. App. El Paso Oct. 31, 2014).

Taxation: “Nothing in the appellate record indicates that Davis requested a bench warrant and that the trial court failed to consider or act upon his request. Davis has failed to preserve error on this issue (to the extent that he has raised it) because the record does not reflect that he made a timely request or motion to appear at trial. See Tex. R. App. P. 33.1(a)(1).”  Davis v. Fayette County Appraisal Dist., 2014 Tex. App. LEXIS 12023 (Tex. App.–Austin Nov. 4, 2014)

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

October 25, 2014

Dear All:

The Supreme Court has granted oral argument on a case which might involve an error preservation issue.  The following is taken verbatim from the Texas Supreme Court Advisory sent out weekly by Osler McCarthy, a Staff Attorney and Public Information Officer for the Court (to subscribe to this Advisory, let Osler know you are interested:  osler.mccarthy@txcourts.gov):

13-0499
In re RSR Corp. and Quemetco Metals Ltd. Inc.
from Dallas County and the Dallas Court of Appeals
on rehearing
Oral argument set January 14
The principal issues are (1) whether trial counsel should be disqualified for interviewing an opponent-party’s former employee who had access to and possession of confidential information involving a licensing-fee dispute (and who was later hired as a consultant for the case against his former employer) and (2) whether the opponent-party’s second, belated disqualification argument should be precluded because it was raised six months before trial and after extended litigation on a separate disqualification basis.

     On some complaints, error does not have to be raised in the trial court to be preserved– for example, legal and factual sufficiency complaints in a bench trial:

Legal and Factual Sufficiency: “While Father did not file a motion or object when the trial court announced that it was going to require that he reimburse Mother her mileage, he was not required to do so to preserve a legal or factual insufficiency complaint for [*10]  review on appeal following a bench trial. See Tex. R. App. P. 33.1(d).”  In the Interest of B.P.R., 2014 Tex. App. LEXIS 11447, *9-10 (Tex. App.–Beaumont Oct. 16 2014)

   Here is one in which the Court held that error was preserved:

Evidence: “Bean’s assertion that the record is “void of any objection” is incorrect. While Classic did not specifically use the phrase “created in anticipation of litigation” when objecting to the admission of the report, it did argue the report was based on bias and lacked trustworthiness, which violated Texas Rule of Evidence 803(6). See Tex. R. Evid. 803(6) (hearsay exception for records conducted in regular course of business). Classic further argued the U.S. Steel employees who conducted the tests on the roof samples and wrote the report “had every reason to conduct their tests in such a way as to exonerate U.S. Steel Corporation and implicate another. . . .” Thus, Classic’s argument was specific enough to enable the trial court to understand the precise nature of the error alleged and was presented at such a time as to enable the trial court the opportunity to cure the alleged error. Tex. R. App. P. 33.1;”  Classic Superoof LLC v. Bean, 2014 Tex. App. LEXIS 11365, *14-15 (Tex. App.–Dallas Oct. 14 2014)

  One case decided in the last couple of weeks provides a really good example of how tedious error preservation is.  In Hernandez, below, the Court held that:

    a hearsay objection is a complaint raising a defect of form, and must be asserted and ruled on in the trial court in order to be preserved; while

an unauthenticated or unsworn document, not supported by any affidavit, is not entitled to consideration as summary judgment evidence, and a complete absence of authentication may be raised for the first time on appeal.

Hernandez v. Gallardo, 2014 Tex. App. LEXIS 11428 *4-5 (Tex. App.–El Paso Oct. 15 2014)

    You might recall the Supreme Court’s opinion in Kia Motors Corp. v. Lawrence Ruiz Individually & As Representative of the Estate of Andrea Ruiz, 2014 Tex. LEXIS 259, 35-46 (Tex. Mar. 28, 2014).  That opinion dealt with the running objection-like aspect of TRE 103, which says that if the trial court hears an objection to evidence outside the presence of the jury and rules the evidence is admissible, then “such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.”  The Supreme Court held that “Kia was not required to object to the Ruizes’ counsel’s questioning Cameron [the plaintiffs’ expert] about the spreadsheet [to which Kia had objected as to hearsay] to preserve error” because the expert’s testimony “was based directly on the information contained in” the spreadsheet.  You might compare that opinion to the decision in Jinchun Jiang, in which the 14th Court held as follows:

Evidence:  “The trial court preadmitted the document [*36]  during a pretrial conference. Defense counsel objected on the grounds that the document was hearsay and Jinchun was not “qualifi[ed] to authenticate” the document.15 FOOTNOTES 15 Later, during Jinchun’s testimony, defense counsel stated: ‘Your Honor, I’m going to renew the objection we previously made. So I don’t have to interrupt this line of questioning[,] may I have a running objection as to [Jinchun] testifying as to stock value?’ . . . . Although defense counsel made a running objection at trial to Jinchun’s testimony regarding the value of the stock, Zhang testified as to the value of the stock without any objection from defense counsel.17 If a party later permits the same or similar evidence to be introduced without objection, the error in the admission of testimony generally is harmless and is waived, unless the party obtains a running objection. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Bhatia v. Woodlands N. Houston Heart Ctr., PLLC, 396 S.W.3d 658, 669 (Tex. App.—Houston [14th Dist.] 2013, pet. filed).  FOOTNOTES  17 Although Zhang’s testimony regarding the value of the stock was based in part on the information in the admitted document, defense counsel was required to object to this testimony to preserve error on this issue. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).”  Katy Int’l, Inc. v. Jinchun Jiang, 2014 Tex. App. LEXIS 11543, *36, 37 (Tex. App.–Houston [14th Dist.] Oct. 23, 2014.

    Remember to assert your complaint in a timely fashion–which most often means when the trial court can still do something about it, and save the expense of another trial:

The Rule: “Gerardo’s fourth issue centers on the fact that Brandon’s expert, his chiropractor Barnes, was present in the courtroom during Brandon’s testimony. Gerardo asserts that the court denied his request to invoke “the Rule” and allowed the expert to remain in the courtroom. See Tex. R. Civ. P. 267. However, the record does not reflect that Gerardo raised this issue before the trial court. In his written pretrial motion in limine, Gerardo “invoke[d] The Rule.” However, the Rule was not invoked or mentioned at trial, and Gerardo made no objection to Barnes’s presence in the courtroom or to his being called as a witness. Gerardo first raised this issue in his motion for judgment notwithstanding the [*11]  verdict.  By failing to timely raise this complaint in the trial court, Gerardo has not preserved this issue for appeal. See Tex. R. App. P. 33.1(a).”  Hernandez v. Hernandez, 2014 Tex. App. LEXIS 11573, *10-11 (Tex. App.–Dallas Oct. 20, 2014).

   Also remember to obtain a ruling on your complaint at the trial court–for example, on hearsay objections–though such rulings may not be necessary on objections to authentication as to documents offered as summary judgment evidence:

Summary Judgment: “Gallardo argues in his brief that some of the evidence submitted by Tenants is incompetent. This includes the Tenants’ affidavits, two letters from Roman to Gallardo, and a city inspector’s report/complaint. Gallardo raised hearsay objections in the trial court to the city inspector’s report/complaint and to Roman’s letters, but he did not obtain a ruling on these objections.  A hearsay objection is a defect of form which must be preserved by obtaining an adverse ruling in the trial court. See Grand Prairie Independent School District v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex.App.–Houston [1st Dist.] 2009, pet. denied). The [*5]  trial court’s order granting summary judgment in Gallardo’s favor is not an implicit ruling sustaining the hearsay objection. See Trinh v. Campero, 372 S.W.3d 741, 744-45 (Tex.App.–El Paso 2012, no pet.); Delfino v. Perry Homes, 223 S.W.3d 32, 35 (Tex.App.–Houston [1st Dist.] 2006, no pet.). Consequently, Gallardo’s hearsay objections are waived.”  Hernandez v. Gallardo, 2014 Tex. App. LEXIS 11428 *4-5 (Tex. App.–El Paso Oct. 15 2014)

Summary Judgment: “Gallardo also objected to the city inspector’s report attached to the responses of both Tenants and to Roman’s letters attached to her response as being unauthenticated. Although Gallardo did not obtain a ruling from the trial court on these objections, unauthenticated or unsworn documents, or documents not supported by any affidavit, are not entitled to consideration as summary judgment evidence. Mackey v. Great Lakes Investments, Inc., 255 S.W.3d 243, 252 (Tex.App.–San Antonio 2008, pet. denied); see Tex.R.Civ.P. 166a(f). A complete absence of authentication is a defect of substance which may be raised for the first time on appeal. See Blanche v. First Nationwide Mortgage Corporation, 74 S.W.3d 444, 451 (Tex.App.–Dallas 2002, no pet.). Tenants did not attempt to authenticate the city inspector’s report or Roman’s letters. Consequently, these documents are not competent summary judgment evidence and will not be considered in our review.”  Hernandez v. Gallardo, 2014 Tex. App. LEXIS 11428 *4-5 (Tex. App.–El Paso Oct. 15 2014)

    Your complaint at trial has to comport with the complaint you make on appeal in order in order to preserve error:

Evidence: “On appeal, APM and Grewal do not argue that the trial court erred in admitting the affidavit and attachments under Rule 902(10). They have abandoned that argument, raised at trial, in favor of a new argument complaining that the trial court took judicial notice of the truth of the facts contained within the admitted records.5 We find that the trial court (1) merely overruled APM and Grewal’s objection to the introduction of Peerboom’s affidavit and the attached records, (2) determined that the filing was made in accordance with Rule 902(10), thereby obviating the need to re-authenticate the affidavit and attachments at trial and the need to duplicate them in the reporter’s record when they were already included in the clerk’s record, and (3)properly admitted this evidence under its local standing order and Rule 902(10). See Tex. R. Evid. 902(10). Further, we find that APM and Grewal’s new argument suggesting that the trial court took judicial notice of the facts contained within the admitted records is meritless. Finally, we find that [*14]  the authentication argument made by APM and Grewal at trial was abandoned on appeal and that the trial court did not abuse its discretion in admitting the evidence. Therefore, we overrule APM and Grewal’s first point of error.  FOOTNOTES  5 “‘It is well-settled that an objection at trial that does not comport with the complaint raised on appeal preserves nothing for appellate review.'” In re S.A.G., 403 S.W.3d 907, 913 (Tex. App.—Texarkana 2013, pet. filed).”  Apm Enters. v. Nat’l Loan Acquisitions Co., 2014 Tex. App. LEXIS 11503, *13-14 (Tex. App.–Texarkana Oct. 17 2014)

Finally, there are the collection of cases which remind us that failing to raise the complaint in the trial court will waive the same:

Continuance: “Not opposing [another party’s] . . . motion [for continuance] is not the same thing as joining the motion and requesting relief. The Wolfes did not request a continuance in the trial court and thus waived the issue.”  Heat Shrink Innovations v. Medical Extrusion Techno…, 2014 Tex. App. LEXIS 11494, 25-26 (Tex. App.–Fort Worth Oct. 16 2014)

Continuance: “Holmes attached to his motion letters dated January 4, 2012 from his primary physician, Robert Rosen, M.D., and Matthew Lo, M.D., who is Holmes’ attending physician and the partner of Dr. Rosen. Neither letter indicated when or if Holmes would be able to attend trial or testify. Dr. Lo stated that testing was inconclusive for the cause of the symptoms that prompted Holmes’ admission to the hospital on January 3, 2012 and he was released to the care of his cardiologist, James Boehrer, [*10]  M.D., on January 4, 2012. Dr. Lo advised that Holmes refrain from any strenuous or stressful activities including trial work until he had been evaluated by his cardiologist. Holmes did not present any evidence showing that he had seen Dr. Boehrer since January 4, 2012. Given Holmes’ failure to show when he would be available to attend trial or testify, we conclude that the trial court did not abuse its discretion by denying the motion for continuance.”  Holmes v. GMAC, Inc., 2014 Tex. App. LEXIS 11427, *8-9 (Tex. App.–El Paso Oct. 15 2014)

Evidence: “Joseph complains about the reliability of the random test and the lack of evidence regarding the kind of test performed, the qualifications of the caseworker to collect the specimen, whether the results were confirmed, and the qualifications of the witness to give an opinion about the results. However, Joseph did not object on any of these grounds at trial. His only objection at trial was that the testimony about the results was hearsay because the witness “was not the caseworker at the time.” After the State adduced testimony that the witness was the caseworker who administered the test, the trial court overruled the objection. Joseph did [*10]  not preserve his complaints about the reliability of the evidence or the qualifications of the witness for appellate review. See Tex. R. App. P. 33.1(a)(1);”  In re A.L., 2014 Tex. App. LEXIS 11399, *9-10 (Tex. App.–San Antonio Oct. 15 2104)

Forceible Detainer: Appellant “ does not explain, nor it is clear from the record, how his claim of adverse possession, even if true, would deprive Fannie of its right to immediate possession. In addition, Borjas never argued or presented any evidence to the trial court in support of any claim that he possessed superior title to the property. “[I]f a party [to a forcible-detainer suit] fails to present ‘specific evidence to raise a genuine title dispute, the jurisdiction of the court [is] never at issue.'” Jaimes, 2013 WL 7809741, at *4 (citations omitted). We cannot conclude from Borjas’s bare assertion of superior title that the landlord-tenant relationship established under the deed of trust was negated or that the justice court and county court were deprived of jurisdiction [*10]  over the forcible-detainer suit. See Tex. R. App. P. 33.1.”  Borjas v. Fannie Mae, 2014 Tex. App. LEXIS 11510, *9-10 (Tex. App.–Austin Oct. 17 2014).

Notice: “In her first and fourth issues, appellant contends that appellees did not properly serve her with copies of appellees’ original [*4]  and first amended petitions or provide her proper notice of the November 13, 2013 hearing. At trial, appellant admitted receiving notice of appellees’ June 6, 2013 original petition. She also acknowledged that she answered the lawsuit in July and that she was given notice of the hearing that occurred on November 13, 2013.4 Furthermore, in her “Counter Suit,” appellant stated that, with regard to appellees’ original petition, “[a]ll documents were received but not accepted.” It is also noteworthy that appellant responded to each of appellees’ filings—a fact that belies her argument about lack of notice. Other than unsupported assertions made in her appellate brief, there is no evidence in the record demonstrating that appellant’s first issue has any merit. Moreover, given the fact that appellant attended the November 13, 2013 hearing and did not object to lack of notice at the time, any complaint about service is waived. See Tex. R. App. P. 33.1(a);”  Scott v. Hamilton County, 2014 Tex. App. LEXIS 11462, *4-5 (Tex. App.–Waco Oct. 16 2014)

Pleading: “However, by participating in the hearing addressing the reimbursement claim without objection, Father did waive his complaint that Mother had failed to plead her claim that she be reimbursed for her mileage. See Tex. R. App. P. 33.1(a);”  In the Interest of B.P.R., 2014 Tex. App. LEXIS 11447, *9-10 (Tex. App.–Beaumont Oct. 16 2014)

Sanctions: “Not surprisingly, Appellant can nowhere direct us to any place in the record where he ever requested a bench warrant or the like to participate in either the sanctions hearing or the final trial. . . .  ‘Respondent’s Affidavit of Property’ . . . . was not a request for a bench warrant or the like, but it practically and substantively negates any notion that Appellant was barred from presenting his case or otherwise denied his due process. . . . Appellant did not complain to the trial court that he was not provided notice of the sanctions hearing nor did he complain of the sanctions imposed and ask the trial court to reconsider its actions in imposing the sanctions. Thus, Appellant failed to preserve these complaints for our review. See Tex. R. App. P. 33.1(a)(1).”  Stanton v. Stanton, 2014 Tex. App. LEXIS 11489, *6 (Tex. App.-Fort Worth Oct. 16 2014).

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

October 11, 2014

Dear All:

I did not find any cases the last couple of weeks where a court held that error was preserved in the trial court.  I think that’s the first time in the last year and one month where that has happened.  First time for everything, I guess.

In terms of error which was not preserved, you might keep in mind that, while the specificity of the complaint can appear from the context, it is always an iffy deal to rely on context to provide the necessary specificity (for example, where the statute you want to rely on was not mentioned when you objected in the trial court):

    “Mother objected to hearsay, and the record clearly indicates the trial court overruled her objection because the statements [*6]  were outcries and therefore fell within an exception to the hearsay rule. Mother then argued Wooten could not sponsor the testimony because she did not receive the outcry. Based on counsel’s objections and follow up argument, we cannot say it would have been apparent to the trial court that Mother was objecting on a failure to hold a hearing under section 104.006 [as to a report of abuse by a child less than 12 years of age]. As such, Mother failed to make a specific objection as required by Texas Rule of Appellate Procedure 33.1.”  In re J.N., 2014 Tex. App. LEXIS 11101, 5-6 (Tex. App.–Dallas Oct. 7, 2014)

    If you file a motion to exclude a witness, because that witness was not disclosed, you still have to object to that witness testifying at trial in order to preserve your non-disclosure complaint as to that witness:

    “Johns filed a motion to exclude evidence in the week prior to the section 355 hearing in which, among other things, he complained about Trinity’s lack of timely  response to Johns’ request for disclosure. The motion was heard and denied  immediately prior to the hearing. When Hodges testified, however, no objection to his  testimony based on Trinity’s untimely designation was made. Thus, because Johns did  not object again at the time Hodges testified, his complaint on appeal is not preserved.  See TEX. R. APP. P. 33.1;”  In the Estate of Stone, 2014 Tex. App. LEXIS 10952, *5 (Tex. App.–Waco Oct. 2 2014)

    And, of course, if you do not raise the complaint in the trial court, you cannot assert it on appeal:

    Discovery:  “Finally, in his third issue, Lott complains the affidavit is somehow defective because it relates to a contract he allegedly entered into with First Bank, but First Bank failed to provide a copy of said contract during discovery as requested. Clearly, this issue is based on alleged pretrial discovery misconduct in the trial court. However, we find no formal discovery request for the alleged contract in the record, no motion to compel production of the alleged contract, and no ruling on any such discovery request. Accordingly, Lott has not preserved this issue for our review. See Tex. R. App. P. 33.1; cf. Meyer v. Cathey, 167 S.W.3d 327, 333 (Tex. 2005) (holding failure to obtain pretrial ruling on discovery dispute that exists before commencement of trial constitutes waiver of any claim for sanctions based on such conduct); Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (same).”  Lott v. First Bank, 2014 Tex. App. LEXIS 10927, *8 (Tex. App.–San Antonio Oct. 1, 2014)

    Capacity: “Instead of objecting to Aflac’s  failure to file a verified pleading challenging capacity, 1 Lincoln litigated the issue, arguing that it had capacity to sue Aflac  because it had changed its name to Lincoln Factoring. 1 Lincoln thus tried the capacity [*7]  issue by consent, and it cannot argue for the first time on appeal that the summary judgment was improperly granted on account of Aflac’s  failure to file a verified pleading according to rule 93. See id.; see also Tex. R. Civ. P. 90 (“Every defect . . . in a pleading . . . which is not . . . brought to the attention of the judge in the trial court . . . shall be deemed to have been waived by the party seeking reversal on such account . . . .”).”  1 Lincoln Fin. Co. v. Am. Family Life Assur. Co., 2014 Tex. App. LEXIS 11017, 6-7 (Tex. App.–Fort Worth Oct. 2, 2014)

Constitutionality: “Appellant does not cite to, and we cannot find, any page in the appellate record in which Appellant raised his challenge to the constitutionality of Chapter 11 in the trial court. Therefore, Appellant has not preserved this issue for our review. See Tex. R. App. P. 33.1;”  Thomas v. Tex. Dep’t of Crim. Justice Officer Marcus A. Adams, 2014 Tex. App. LEXIS 11201, *5 (Tex. App.–Eastland Oct. 9, 2014)

Evidence: “The admission or exclusion of evidence is left to the discretion of the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). In order to preserve any error in the admission of evidence, the complaining party must raise an objection and obtain a ruling. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). This applies to any evidence that could be excluded under rule 193.6. City of Paris v. McDowell, 79 S.W.3d 601, 606-07 (Tex. App.—Texarkana 2002, no pet.).  The Levines have failed to cite to any portion of the record establishing that they raised any objection to evidence of SSCHI’s damages in excess of $52,000. Accordingly, they have failed to establish that this issue was preserved for appeal.”  Levine v. Steve Scharn Custom Homes, 2014 Tex. App. LEXIS 11009, *34 (Tex. App.–Houston [1st Dist.] Oct. 2, 2014)

Foreclosure:  “The Shamels argue—for the first time on rehearing—that even if the foreclosure sale was not void, they were entitled to an abatement and dismissal of the proceedings under former Texas Rule of Civil Procedure 736(9). See 61 Tex. B.J. 226, 228 (1998, amended 2011). This issue is waived. See Tex. R. App. P. 33.1(a).”  Shamel v. Specialized Loan Servicing, 2014 Tex. App. LEXIS 10888, *8 (Tex. App.–Austin Oct. 2, 2014)

Family Law:  “David’s eighth point of error raises issues that were never raised in the trial court.n9 We will not address an issue on appeal that was not raised in the trial court. In re Marriage of Lendman, 170 S.W.3d 894, 898 (Tex. App.—Texarkana 2005, no pet.); see also TEX. R. APP. P. 33.1. We overrule this point of error.  FOOTNOTES  n9 David alleged a theft of wages.”  Bouknight v. Bouknight, 2014 Tex. App. LEXIS 10976, *10 (Tex. App.–Texarkana Oct. 2, 2014)

Judicial Comments:  “In her first issue, Jane asserts that the trial judge’s comments during a dialogue with counsel and the Department caseworker just before trial began show that the judge had already made up his mind to terminate Jane’s parental rights and thus deprived Jane of her constitutional right to a fair trial. But as the Department notes, Jane failed to preserve this issue for appellate review by not objecting to the comments or moving to recuse before the trial began, and by not asserting the complaint in a motion for new trial. TEX. R. APP. P. 33.1(a).”  D.E., 2014 Tex. App. LEXIS 10949, *3 (Tex. App.–Waco Oct. 3 2014)

Judicial Comments:  “Some of Naden’s complaints concern various comments the trial court made before the attorneys began questioning the array during jury selection. According to Naden, the statements amounted to a plea to the array asking that they enforce the law in favor of the State. During voir dire, the trial court told the array that “juries enforce laws[]” and that “if we don’t have people — if people won’t keep an open mind and listen to evidence, then our laws are meaningless.” The trial court then explained that in criminal cases, juries decide whether [*4]  a defendant is guilty and that “[i]f we don’t have juries doing that, then we don’t get all the plea bargaining we get going on because defendants wouldn’t plea bargain if they didn’t think there was a jury out there that would find them guilty.” The record does not reflect that Naden objected or asked for any instructions with respect to these comments.  We conclude that Naden’s complaints about these matters could have been resolved by proper instructions. Because Naden failed to object or request that the jury be instructed that the comments did not convey the trial court’s views regarding the merits of Naden’s case, his complaints about these comments were not properly preserved. Id.; see also Tex. R. App. P. 33.1(a)(1)(A).”  In re Naden, 2014 Tex. App. LEXIS 10991, 3-4 (Tex. App.–Beaumont Oct. 2, 2014)

Recusal: “There is no indication that any of the other reasons the Boyaki group cited in their brief were presented to the trial court or administrative judge. We will not address arguments in support of recusal that are not supported by citations to the appellate record or that are presented here in the first instance. Evans v. Hoag, 711 S.W.2d 744, 746 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.); see also Tex. R. App. P. 33.1(a),”  Boyaki v. John M. O’Quinn & Assocs., 2014 Tex. App. LEXIS 10862 (Tex. App.–Houston [1st Dist.] Sept. 30, 2014)

Dismissal: “Appellant also claims that the trial court erred when it dismissed his claims with prejudice. However, Appellant did not raise this issue in the trial court and, thus, has waived error for appellate review. See Tex. R. App. P. 33.1;”  Thomas v. Tex. Dep’t of Crim. Justice Officer Marcus A. Adams, 2014 Tex. App. LEXIS 11201, *9 (Tex. App.–Eastland Oct. 9, 2014)

 Legal and Factual Sufficiency [jury trial]: “But we are not shown, nor do we find, any record indication that B.L. preserved her legal and factual sufficiency complaints in the trial court. See Tex. R. App. P. 33.1(a).’Important prudential considerations underscore our rules on preservation. Requiring parties to raise complaints at trial conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds.’ In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). To preserve a legal sufficiency challenge for appeal following a jury trial, an appellant must have: (1) moved for an instructed verdict; (2) moved for judgment notwithstanding the verdict; (3) objected to the submission of a jury question; (4) moved to disregard the jury finding; or (5) moved for a new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991). While a legal sufficiency challenge may be preserved in a motion for new trial, it does not entitle [*12]  an appellant to rendition of judgment. Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499 (Tex. 1993) (per curiam). A claim that the evidence presented during a jury trial was factually insufficient must be preserved through a point in a motion for new trial.”  In the Interest of C.L., 2014 Tex. App. LEXIS 11104, 11-12 (Tex. App.–Amarillo Oct. 7, 2014)

“We agree with the Department that the parents failed to preserve their legal sufficiency complaints because this case was tried to a jury, because the father did not file a motion for instructed verdict, because the mother did not reurge her motion for directed verdict after presenting evidence on her own behalf, and because the parents failed to object to the submission of the issue to the jury or file a motion to disregard the jury’s answer, a motion for judgment notwithstanding the verdict, or a motion for new trial. See In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). We also agree that the parents’ challenges to the factual sufficiency of the evidence were not preserved for review because the parents did not file a motion for new trial. [*3]  See Tex. R. Civ. P. 324(b)(2).”  In the Interest of C.C.B., 2014 Tex. App. LEXIS 11189, 2-3 (Tex. App.–Eastland Oct. 8, 2014)

Jury Questions:  “Koukhtiev next complains that Question 4 did not require a finding that Hiner performed, tendered performance of, or was excused from performing her contractual obligations. These issues go to whether Koukhtiev’s breach of contract was excused by Hiner’s own breach or repudiation of the contract, a defense that Koukhtiev waived if he did not affirmatively plead it or try it by consent. Compass Bank, 152 S.W.3d at 851; see also Tex. R. Civ. P. 272, 274; RE/MAX of Tex., Inc., 961 S.W.2d at 327. The record before us does not reflect any pleading asserting this defense or agreement to try the issue by consent, and Koukhtiev did not submit these issues for determination by the jury. Accordingly, we hold that Koukhtiev waived any objection to Question 4 on the grounds that it failed to require a finding that Hiner complied with [*17]  the agreement.  Koukhtiev further asserts that Question 4 does not require a determination whether Koukhtiev breached the contract because it did not specifically ask if he breached the “Work for Hire Agreement.” Had it done so, Koukhtiev concedes that it would be a proper question. Koukhtiev argues that this omission is exacerbated by Question 4’s use of the language “any or all of his interest,” which he argues is self-contradictory and ambiguous because “any” and “all” are different concepts. Koukhtiev’s counsel did not mention the Work for Hire Agreement or submit any specific language in Question 4 in his objection to the trial court, nor did he object on grounds that the question was self-contradictory or ambiguous. Nothing about the evidence or the context of the question would have made these objections clear to the trial court. Thus, Koukhtiev failed to preserve any error with respect to these arguments. Tex. R. Civ. P. 272, 274.”  Koukhtiev v. Hiner, 2014 Tex. App. LEXIS 11019, 16-17 (Tex. App.–Houston [1st Dist.] Oct. 2, 2014)

Jury Instruction: “On appeal, IRI contends the trial court erred by failing to include any instruction as to the measure of damages. Although IRI made a request and objection pertinent to Question No. 4, the issue that it raises on appeal was not brought to the court’s attention during the charge conference. Because IRI agreed with the court and failed to object to the omission of an instruction as to damages or request such an instruction in substantially correct form, this part of issue seven is waived. See Tex. R. App. P. 33.1;”  Internacional Realty, Inc. v. 2005 RP West, Ltd., 2014 Tex. App. LEXIS 11074 (Tex. App.–Houston [1st Dist.] Oct. 7, 2014)

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

September 29, 2014

Dear All:

I figured out I missed a few Supreme Court cases on error preservation toward the end of last fiscal year, so I’ll put those in first.

The Supreme Court noted that it was “generally loath to turn away a meritorious claim due to waiver” in holding that a party had preserved its objections about the excessiveness of a sanctions award by raising it in a motion for new trial and a motion to modify, and it showed some sympathy for a pro se father who did not knowingly, voluntarily, and intelligently waive a due process notice of trial.  The Court showed less sympathy for a company which failed to obtain a ruling on its motion for reconsideration related to whether a plaintiff properly presented a motion for extension of time (which the trial court granted):

    “The record plainly reveals Nath’s objections to the award, including objections specifically predicated on the ground of excessiveness. On December 20, 2010, Nath filed a motion for new trial and a motion to modify the trial court’s November judgment and sanctions order, arguing the sanctions award “violates the Excessive Fines clause of the Constitution of the United States of America—Eighth Amendment—and the Excessive Fines clause of the Texas Constitution—Article I, section 13.” Additionally, Nath cited United States Supreme [*20]  Court precedent to bolster his contention that the trial court should consider “whether the penalties in question were excessive.”n11   We are generally loath to turn away a meritorious claim due to waiver; where the party has clearly and timely registered its objection, we find a waiver argument particularly unavailing. See Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997). We conclude Nath did not waive his objection to the excessiveness of the sanctions award.”  Nath v. Tex. Children’s Hosp., 2014 Tex. LEXIS 756, 19-20 (Tex. Aug. 29 2014)

“It is true that John attended and participated in all four days of trial and did not request a continuance based on his lack of notice. However, John was told by the trial judge on the first day of trial that it was too late for him to be appointed an attorney and that nobody would be looking out for him anymore. Further, John appeared at trial under subpoena and testified that, “I have a lot of stuff going through my head right now, and it’s very difficult to sit up here, and be this nervous, and try not to burst into tears over y’all not letting me see my little girl.” . . . Based on the record before us, we cannot conclude that John voluntarily, knowingly, and intelligently waived his due process right to notice of trial by sitting, under subpoena, through trial without any help from counsel and failing to formally move for continuance. John raised this complaint in a motion for new trial, and the trial court erred by not granting that motion.  ‘Only that would have wiped the slate clean. Only that would have restored [John] to the position he would have occupied had due process of law been accorded to him in the first place.’ Armstrong, 380 U.S. at 552.”  In re K.M.L., 2014 Tex. LEXIS 765, 42-43 (Tex. Aug. 29 2014)

“We need not address the question of whether a motion to extend time [for the plaintiff to amend a death certificate to show the cause of death was asbestos related] existed and whether it was supported by good cause because Union Carbide did not secure a written ruling on either its motion for reconsideration or the underlying motion to dismiss, nor did it object to the trial court’s failure to sign a written order. Thus, both motions remained pending before the MDL court.”  Union Carbide Corp. v. Synatzske, 2014 Tex. LEXIS 565, *28 (Tex. July 3 2014)

    On to, as my former mentor Beale Dean used to say, the courts of apples.  There are several situations in which courts held that parties preserved error:

    “We conclude that the statute governing a defendant’s right to identify responsible third parties creates a right to do so that does not depend on a defendant’s ability to join others on claims for contribution. We are not persuaded by the Hugheses argument that Sun was required to join others as parties to demonstrate harm when the trial court’s ruling deprived Sun of a statutory right it was given to pursue a strategy that did not require that it join others as parties to the suit. Additionally, the Hugheses could have just as easily avoided any question of harm by agreeing to Sun’s motions to designate the responsible third parties at issue. In our opinion, Sun preserved its right to complain of the trial court’s alleged error by filing timely motions to designate several individuals and entities as responsible third parties and by obtaining rulings on its requests. See Tex. R. App. P. 33.1(a).”  Sun Dev., L.P. v. Hughes, 2014 Tex. App. LEXIS 10762, *34 (Tex. App.–Beaumont Sept. 25, 2014)

“In its brief in support of temporary injunctive relief, filed on the day of the hearing, Cameron contended that the agreement was enforceable under Texas, Delaware, and Colorado law, but reiterated that “Delaware law should govern construction of the Non-Compete Covenant per [*9]  the contractual choice of law provision in the Restricted Stock Unit Award Agreement.” Cameron cited Delaware authority in support of its contention that the agreement was reasonable in scope and duration.  By timely presenting the question of the applicable governing law in its briefing to the trial court; Cameron preserved the issue for appeal. See Tex. R. App. P. 33.1(a)(1)(A). . . .Cameron again raised the choice-of-law issue in the hearing on its motion to reconsider, where [its counsel said that] ‘We believe that the law that should be applied in this case is Delaware [*10]  law, the law chosen by the parties in their contract and under the Newell case that we’ve cited and provided to you . . . . We believe that Texas law is in accord. Your honor has indicated that you disagree with that. . . . under the DeSantis analysis, we do not believe that Texas law would apply in this case principally because Texas’s connection to this case is solely the fact that Cameron has its headquarters here. Cameron’s a Delaware corporation. . . .’ [and the trial court said] ‘And I understand what you’re saying. . . . you’re saying that Delaware law applies to the enforceability of the contract—of the noncompete itself.’  Cameron: Yes, your Honor.  Trial Court: . . . I’m not certain whether it’s Delaware or Texas law. . . . I haven’t made a ruling as to whether even if Delaware law applies, it would allow for this agreement. And I know you’ve shown me a case that suggests that it does. . . . .  Cameron: Understood. I just wanted the choice of law position to be clear. We understood the Court’s ruling in the findings.”  Following the hearing, the trial court denied Cameron’s motion to reconsider. The record demonstrates that Cameron preserved the choice-of-law issue for appellate review.”  Cameron Int’l Corp. v. Guillory, 2014 Tex. App. LEXIS 10767, 9-11 (Tex. App.–Houston [1st Dist.] Sept. 25, 2014)

    In a non-jury trial, one does not need to raise complaints about legal or factual sufficiency in the trial court:

    “We construe Milliken’s argument as a contention that no evidence supports the trial court’s determination that a contract existed under which Milliken agreed to repay a $6,000 loan to Turoff at the end of February 2008. Milliken did not raise a legal sufficiency challenge in the trial court; we nonetheless will address this challenge because Milliken is permitted to raise this complaint for the first time on appeal in a nonjury case. See Tex. R. App. P. 33.1(d).”  Milliken v. Turoff, 2014 Tex. App. LEXIS 10313 (Tex. App. Houston 14th Dist. Sept. 16, 2014)

    But, while it is true that legal and factual sufficiency complaints do not have to be raised in a non-jury trial to be preserved, be aware that couching a complaint as a factual sufficiency complaint will not salvage a complaint as to which the factual insufficiency is immaterial:

    “Oz counters that appellants failed to object to the trial court’s imposition of joint and several liability as to the damages. Therefore, error was not preserved and is waived. Tex. R. App. P. 33.1. The record reveals Appellants did not object either to the judgment which held appellants jointly and severally liable nor was it raised in their motion for new trial. In fact, Appellants acknowledge this issue was never raised in the trial court. Their position is that in a non-jury case, such as this, they were not required to raise legal or factual sufficiency points for error preservation. Tex. R. App. P. 33.1(d).  We find Appellants’ have waived error given that their sufficiency point is immaterial to the imposition of joint and several liability under the facts of this case.”  Victory Energy Corp. v. Oz Gas Corp., 2014 Tex. App. LEXIS 10348 (Tex. App. El Paso Sept. 17, 2014)

    Keep in mind that, if rules other than 33.1 govern a specific complaint, then you have to comply with the requirements of those rules, as well as complying with Rule 33.1:

  “To present a complaint for appellate review, the record must show a complaint was communicated to the trial court by a timely motion, request, or objection complying with the requirements of the rules of civil procedure. Tex. R. Civ. P. 33.1(a); Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas 2003, pet. denied). When a party moves for a continuance, Texas Rule of Civil Procedure 251 requires the party to show “sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251.  Assuming Meritage’s conditional request for a recess constituted a request for continuance, Meritage presented its oral motion without a supporting affidavit. Further, nothing in the record shows the parties consented to a continuance or that they were entitled to one by operation of law. Consequently, we conclude Meritage’s complaint is not preserved. Taherzadeh, 108 S.W.3d at 928; Dempsey v. Dempsey, 227 S.W.3d 771, 776 (Tex. App.—El Paso 2005, no pet.) (op. on motion for reh’g) (concluding oral request for continuance failed to preserve error).”  Meritage Homes of Tex., L.L.C. v. Ruan, 2014 Tex. App. LEXIS 10345 (Tex. App.–Dallas Sept. 16, 2014)

    The complaint you raise on appeal must be the complaint you asserted below:

 “In her second [*8]  issue, Milliken contends that the trial court erred in signing the final judgment in this case because Milliken did not receive proper notice of trial under Texas Rule of Civil Procedure 245. Milliken did not raise this complaint in the trial court; therefore, it is waived and we do not address it. See Tex. R. App. P. 33.1(a).n1 We overrule Milliken’s second issue.  FOOTNOTES  n1 . . .The cited pages [of the Clerk’s Record] do not address the asserted failure to receive notice of trial; they pertain to a separate complaint, not pursued on appeal, that Milliken had not received notice of a motion for sanctions filed by Turoff.”  Milliken v. Turoff, 2014 Tex. App. LEXIS 10313, 7-8 (Tex. App.–Houston [14th Dist.] Sept. 16, 2014)

    And then there is the usual litany of cases which confirms that a complaint has to be raised below in order to preserve error on appeal:

   “In her third issue, Butler argues that the expert-report requirement diminishes the right to a jury trial. Appellees point out that Butler did not raise this complaint in the trial court and argue that to the extent she purports to make a constitutional challenge [*6]  on appeal to the statutory expert-report requirement, her constitutional challenge is not preserved. We must agree, and we generally do not favor reversing a trial court’s ruling on unpreserved error. See Tex. R. App. P. 33.1(a)(1).”  Butler v. Whitten, 2014 Tex. App. LEXIS 10484, 5-6 (Tex. App.–Fort Worth Sept. 18, 2014).

“On appeal, the Father complains that the record does not show that the Department’s caseworker went over the service plan with him, pointing out that the caseworker signed the plan before the date of the Father’s signature. The record does not show that the Father made this complaint in the court below, and he has waived it. See Tex. R. App. P. 33.1(a).”  In the Interest of G.S., 2014 Tex. App. LEXIS 10563, *23 (Tex. App.–Houston [14th Dist.] Sept. 23, 2014)

“Appellee’s motion is comparable to the one in In re D.W.G.n22 The appellee in that case filed a no-evidence motion for summary judgment challenging the appellant’s affirmative defense of res judicata, and the appellee’s motion simply stated “‘there is not a “prior final judgment on the merits by a court of competent jurisdiction” because prior to January 1, 1974, this remedy did not exist.'”n23 The court of appeals held that this was sufficient to attack one, if not two, elements of the res judicata defense.n24 In this case, by [*29]  the same token, appellee’s assertions “There is no evidence of Breach of Contract” and “[Appellee] did not engage in Breach of Contract” were sufficient to challenge the breach element of appellant’s breach-of-contract claim. This case is not one in which the movant completely failed to specify any element that was lacking in evidentiary support.n25 Appellee did specify the element he was challenging. If appellant found appellee’s motion [for summary judgment] unclear or ambiguous as to which element he was challenging, appellant had to object in order to preserve error.n26 He did not and thus may not be heard to complain on appeal.”  Coleman v. Prospere, 2014 Tex. App. LEXIS 10546, 28-29 (Tex. App. –Dallas Sept. 22, 2014)

“Finally, in his fourth issue, the Father asserts that the trial court erred in ordering him to reimburse the county for the attorney’s fees incurred by his court-appointed counsel. The Department asserts, and we agree, that the Father has waived this complaint by failing to bring it to the trial court’s attention.”  In the Interest of G.S., 2014 Tex. App. LEXIS 10563, *68 (Tex. App. Houston 14th Dist. Sept. 23, 2014)

“Phelan asserts for the first time on appeal that his general damages are presumed because Norville’s statement constituted defamation/libel per se. We find Phelan waived this argument on appeal because he did not raise this contention in his pleadings, ask the trial court to rule as a matter of law that Norville’s statement constituted defamation/libel per se, object to the jury instructions which omitted an instruction on defamation/libel per se or, otherwise, ask the jury to determine [*8]  whether Norville’s statement constituted defamation/libel per se.”  Phelan v. Norville, 2014 Tex. App. LEXIS 10560, 7-8 (Tex. App.–Amarillo Sept. 22, 2014)

“Mother also argues that the evidence is factually insufficient to support the statutory predicate grounds for termination, but she did not challenge the factual sufficiency of those findings in her motion for new trial. A motion for new trial is required to preserve a complaint of factual insufficiency to support a jury finding.”  K.S., 2014 Tex. App. LEXIS 10748, *8 (Tex. App.– Beaumont Sept. 25, 2014)

“The Department argues that appellants failed to preserve their sole issue for appellate review. Appellants did not respond to this argument. Appellants’ assertion that termination is not in their child’s best interest takes the form of a challenge to the sufficiency of the evidence. To preserve a challenge to the legal sufficiency of evidence in a jury trial, a party must either (1) file a motion for instructed verdict, (2) file a motion for judgment notwithstanding the verdict, (3) object to the submission of the issue to the jury, (4) file a motion to disregard the jury’s answer to a vital fact issue, or (5) file a motion for new trial. See In re D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.—Fort Worth 2005, no pet.); see also T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). To preserve a factual-sufficiency challenge for appeal, a party must file a motion for new trial. D.J.J., 178 S.W.3d at 427; see also Tex. R. Civ. P. 324(b)(2). No such motions appear in the record. Appellants have not preserved their sole appellate complaint.”  D. F. & B. v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 10629 (Tex. App.– Austin Sept. 25, 2014)

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

September 14, 2014

Dear All:

Well, out with the old, in with the new.  We’re off to the second full year of compiling and distributing error preservation rulings in Texas civil cases.  My, how time flies when you’re having fun.

Before getting on to recent cases, I wanted to bring to your attention a portion of a hugely ambitious paper presented at the most recent Advanced Civil Appellate Practice Course, authored by Hon. Kem Thompson Frost, Jeffrey L. Oldham, Yvonne Ho, and Cynthia Keely Timms.  That paper was entitled “Conflicts among the Courts of Appeals:  Challenges for Judges and Practitioners.”  In it, the authors address conflicting authority on the following error preservation topics:

8.     Requirement to preserve objection to summary judgment evidence
9.     Requirement to preserve error on affiant’s lack of personal knowledge
10.   Requirement to preserve error on failure to attach sworn or certified copies of documents referenced in affidavits supporting summary judgment
11.    Requirement to preserve error on complaint that no-evidence summary judgment motion is not sufficiently specific
12.    Viability of the  “sham affidavit” doctrine in Texas

If you have any of these issues in a case, you might want to get and read this paper.

At the tail end of August, the Supreme Court handed down an error preservation decision, relating to an objection to a jury charge.  The Court’s error preservation discussion was extensive, discussing many of the policy considerations behind error preservation and jury charge submission, and then issuing the following holding:

    “Chad argues that the court impermissibly combined valid and invalid theories of liability when the broad-form damages question incorporated privileged statements. Chad did not make a Casteel-type objection to form; thus, to preserve error, Chad must have raised some specific objection to the submission of Questions 5 through 10. See In re B.L.D., 113 S.W.3d at 349-50 (holding that a complaint to a jury charge was waived because it was not specifically included in an objection). He did not. Thus, we hold that Chad’s failure to object waives his right to complain of the charge on appeal.”

Burbage v. Burbage, 2014 Tex. LEXIS 753, *18 (Tex. 2014).  The Court quoted the comments made by the Petitioner during the charge conference, pointing out that his request for an additional question concerning a qualified privilege (in a defamation case) did not preserve his complaint that the trial court erred in submitting five other questions in the proposed charge.  At *16.  It wouldn’t hurt to review Burbage to be reminded of the challenges presented by the charge conference.

On to current cases.  And before launching off into them, I think I have gleaned the following from having spent a year doing this little blog.  In terms of the multitude of cases which hold that error was not preserved because the complaint was not made below, I doubt seriously you will get much out of those cases.  The more helpful parts of this blog are probably those cases which held that error was preserved, or address whether the complaint was timely or was specific enough.  So I try to put those cases at the first of the blog.  Once you work through those, you have probably seen what you need to see.

Sometimes courts hold that objections do not have to be made at the trial court level to be preserved–like objections to the authentication and admissibility of documents.  But this is one of those areas of the law that you better check out thoroughly to make sure there is no conflicting authority (see article by Frost, et al, above):

    “An examination of the cases that Champion cites in support of its contention that a ruling on the objection was required to preserve error reveals that [*24]  the defects at issue were actually defects in form, not substance.3 . . . We hold the Guerrero parties did not waive their objection to the authentication and admissibility of the documents Champion offered to show the existence of an agreement to arbitrate.  3 We note that the preservation rules in summary judgment practice have sometimes caused confusion. See Mayo, No. 14-07-00491-CV, 2008 WL 4355259, at *6, n.1 (Brown, J., concurring).”  In the Estate of Guerrero, 2014 Tex. App. LEXIS 10014, 23-24 (Tex. App.–Houston [14th Dist.] Sept. 4, 2014)

But the dissent –authored by Chief Justice Frost, whose paper I refer you to above–had a few things to say about the foregoing holding:

“Even if all claimants objected to this defect in the trial court, they did not preserve error because none of them obtained a ruling.3 For this court to affirm based on this defect, this defect must be a defect in substance that may be raised for the first time on appeal rather than a defect in form that requires preservation of error in the trial court.[note omitted].  Less than two years ago, this court held that the same defect in authentication was a defect in form rather than a defect in substance.”  In the Estate of Guerrero, 2014 Tex. App. LEXIS 10011 (Tex. App.–Houston [14th Dist.] Sept. 4, 2014) (Frost, CJ, dissenting).

Cases which held that error was preserved:

    “In its brief, the State contends that although Edwards filed a motion with the trial court seeking a declaration that the SVP statute is unconstitutional as applied to him, Edwards did not obtain a ruling on said motion. However, the record reflects that Edwards’s counsel argued the motion and obtained a ruling before trial began. Therefore, we conclude that Edwards preserved the issue for appellate review.”  In re Edwards, 2014 Tex. App. LEXIS 10033 (Tex. App.–Beaumont Sept. 4, 2014)

“Further, Risner objected to the admission of the new petition pages when they were offered at the hearing on the permanent injunction, and he timely appealed from the trial court’s final judgment, wherein the trial court granted Salazar’s request for an opportunity to cure her defective application. We conclude that Risner did not waive his objection to the trial court’s order granting Salazar’s claim for relief.”  Risner v. Harris County Republican Party, 2014 Tex. App. LEXIS 9996 (Tex. App.–Houston [1st Dist.] Sept. 3, 2014).

“Unlike the charge error complaint in B.L.D., a pro se request for appointment of counsel in a parental termination case gives rise to affirmative duties on the part of the trial court. See In re C.L.S., 403 S.W.3d 15 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (holding that, before permitting a parent to appear pro se at trial, trial court should have first warned parent of dangers of self-representation and obtained valid waiver of right to counsel on record). Nothing in the record shows that K.M. chose to proceed pro se or that the trial court found she waived her right to counsel. The trial court did not admonish her of the dangers of self-representation before proceeding with the trial on the merits. On this record, we hold that K.M. [*11]  did not waive her right to counsel.”  V.L.B., 2014 Tex. App. LEXIS 10043, 10-11 (Tex. App.–Houston [1st Dist.] Sept. 4, 2014)

“In his supplemental response to SORM’s no-evidence motion for summary judgment, appellant stated that whether the special mission exception applied was “probative of . . . whether the employee’s travel originates in the employer’s business.” As to the first prong, [*9]  appellant stated that SORM directed J.C. to attend the seminar in Edinburg and attached evidence that SORM had directed J.C. to attend the seminar. As to the second prong, evidence was presented that SORM employees were required to attend the seminar as part of their employment. Thus, we conclude that appellant’s response to SORM’s motion for no evidence summary judgment addressed the definition of “course and scope of employment.””  Peña v. State Office of Risk Mgmt., 2014 Tex. App. LEXIS 10150, 8-9 (Tex. App.–Corpus Christi Sept. 11, 2014)

The record has to show that the trial court was made aware of the complaint which you made:

    “To the extent that appellant complains that the trial court did not grant his motion for a default judgment between February 8, 2012 and February 16, 2012, the recordn7 does not show that the trial court denied the motion during that time or even that the trial court was aware during that time that the motion had been filed. Thus, we cannot conclude that the trial court abused its discretion by not granting the motion.”  Walters v. Management Training Corp. Mtc, 2014 Tex. App. LEXIS 10054 (Tex. App.–Fort Worth Sept. 4, 2014)

    The complaint must be timely, giving the trial judge to fix the complained of error:

    “In their brief, appellees point out that appellant filed his motion to appear by telephone the day after the bench trial was held. See Tex. R. App. P. 33.1(a) (requiring a timely request to preserve error). Therefore, even if the issue were adequately briefed and not deemed waived, the Court would overrule the issue because the error was not preserved by a timely request.”  In re C.A.W.P. & Z., 2014 Tex. App. LEXIS 9914 (Tex. App.– Corpus Christi Sept. 4, 2014)

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

    “Appellant failed to preserve his final point for appeal. Although appellant did remark several times at trial that he wanted an attorney, at no point did he object to the trial court’s allowing his attorney to withdraw and, in fact, agreed to the withdrawal immediately before the trial began. Similarly, appellant failed to argue in his motion for new trial or during the hearing on his motion for new trial that the trial court had erred by approving and signing the agreed withdrawal order. Appellant’s complaint at trial was [*12]  that he did not want to go to trial without a new attorney, not that the trial court incorrectly allowed his third counsel to withdraw.”  Ruiz v. Ruiz, 2014 Tex. App. LEXIS 10050, 11-12 (Tex. App.–Fort Worth Sept. 4, 2014)

    Your complaint must be sufficiently specific:

    “In his response to Coursetrends’ [*6]  motion for summary judgment, Christensen referred the court to “all pleadings on file at the time of the hearing” and the affidavit of Christensen, but the portion of the response addressing the no-evidence motion did not address or provide any analysis to direct the trial court to the particular evidence relied on by Christensen to create fact issues as to the elements of his breach of contract claim. . . . In his briefing on appeal, Christensen provides analysis of the summary judgment evidence that he contends creates genuine issues of material fact as to the elements of his breach of contract claim, but we may not reverse the trial [*7]  court’s summary judgment on an issue not expressly presented to the trial court.”  Christensen v. Coursetrends, Inc., 2014 Tex. App. LEXIS 9873, 6-7 (Tex. App.–Austin Sept. 3, 2014)

“Frankoff also argued, “Frankoff objected, to the materiality, to the relevancy, and once again he reincorporates all of his earlier exhibits and documents.” This objection does not refer to anything specific and thus was not sufficient to make the trial court aware of the complaint.”  Frankoff v. Norman, 2014 Tex. App. LEXIS 10099 (Tex. App.–Houston [14th Dist.] Sept. 9, 2014)

And a complaint must be raised in the trial court to be preserved for appeal:

    “In a single paragraph in his brief, Thompson raises for the first time a contention that the 1919 conveyance from Mariah to Bryan J. Butts could be void due to the application of the Rule Against Perpetuities. Since this was not presented to the trial court, this issue is not preserved for our review.”  Helen Butts Tipps v. Chinn Exploration Co., 2014 Tex. App. LEXIS 9999 (Tex. App.–Texarkana Sept. 5, 2014)

“On appeal, McAdams suggests the evidence was prejudicial. However, he did not object on that basis during the hearing, so his argument that the evidence was unduly prejudicial was not preserved for appeal.”  R.A.M., 2014 Tex. App. LEXIS 10029 (Tex. App.–Beaumont Sept. 4, 2014)

“McAdams identifies ten different places in the reporter’s record where McAdams alleges opposing counsel made comments that were critical and disrespectful. The record also shows that McAdams failed to object to any of these statements when they were made. Because McAdams did not object, the complaints he makes in issue six were not preserved for our review on appeal.”  R.A.M., 2014 Tex. App. LEXIS 10029 (Tex. App. Beaumont Sept. 4, 2014)

“Here, however, after Amy was notified of the order against her [that she was liable for deficiencies in the guardianship estate during her stint as guardian], she did not file a motion for new trial. Instead, she raised her due process complaint for the first time on appeal. Even if we were to assume that the probate court abused its discretion by issuing the deficiency order, Amy has waived her complaint by failing to raise the issue in a motion for new trial or other post-judgment motion.”  In the Guardianship of Jeffrey Herron, 2014 Tex. App. LEXIS 10203, *6 (Tex. App.–Fort Worth Sept. 11, 2014)

“Jessica never objected to any of the time limitations imposed by the trial court. For example, Jessica did not object to the trial court’s initial limitation on time for trial, request additional time to call more witnesses after the Department’s case ran long, or object to the trial court’s instructions that the parties keep their questioning brief. . . . .If Jessica had complaints about the trial court’s allocation of time, “it was incumbent upon [the complaining party] to make its objection known at the time.””  J.E. v. Tex. Dep’t of Family & Protective Servs., 2014 Tex. App. LEXIS 10109, 9-10 (Tex. App.–Austin Sept. 10, 2014)

“Appellant did not otherwise indicate to the trial court he wished to cross-examine the complainant regarding [*25]  this subject. Consequently, he failed to preserve his claim that the trial court prevented him from cross-examining the complainant on this issue.”  Rohr v. State, 2014 Tex. App. LEXIS 10138, 24-25 (Tex. App.–El Paso Sept. 10, 2014)

“To the extent Appellant can be understood as arguing that the trial court erred by excluding the testimony of White and Sherrell, we conclude that the issue it is not preserved because Appellant did not argue this as a ground for admissibility in the trial court.”  Rohr v. State, 2014 Tex. App. LEXIS 10138 (Tex. App.–El Paso Sept. 10, 2014)

“The Starkey parties additionally contend that Graves cannot recover against Starkey under this theory of liability because there is no jury finding that Starkey owed Graves duties of loyalty and care in the first place; however, the Starkey parties did not object in the trial court that the question concerning Starkey’s liability was required to be predicated on a factual finding that he owed Graves any such duties. Cf. Tex. R. Civ. P. 278 (explaining that if a party relies on an omitted question, the opposing party preserves error by objecting to the omission). Thus, if such a finding is necessary, then it is deemed found. See Tex. R. Civ. P. 279.”  Starkey v. Graves, 2014 Tex. App. LEXIS 10210 (Tex. App.–Houston [14th Dist.] Sept. 11, 2014)

All for now.  Hope this helps.

Yours,

Steve Hayes

www.stevehayeslaw.com

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