Error Preservation in Texas Civil Cases, December 9, 2017

December 9, 2017

Dear All:

A complaint that a party did not request summary judgment on a particular claim may be raised for the first time on appeal, as may the complaint that a justice court does not have jurisdiction over a forcible-detainer suit may be raised for the first time on appeal:

  • Summary Judgment: “Woodbury argues that Rainier waived this complaint because Rainier did not raise it in the trial court. But, as noted by Rainier, HN12 a party need not object in the trial court to a summary judgment made on grounds not expressly presented in the summary-judgment motion. See McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 342 (Tex. 1993) (“Even if the non-movant fails to except or respond, if the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law.”). We will thus entertain Rainier’s argument that summary judgment was improper on its breach-of-contract claim because Woodbury did not expressly seek summary judgment on that claim.” Rainier Southlake DST v. Woodbury Strategic Partners Fund, LP, No. 02-16-00263-CV, 2017 Tex. App. LEXIS 11407, at *26 n.12 (App.—Fort Worth Dec. 7, 2017)
  • Subject matter jurisdiction: “Reynoso obtained an adverse ruling from the county court at law on her motion to dismiss, in which she raised various jurisdictional and constitutional issues, and we presume for the sake of argument that she preserved error thereby as to all of her non-jurisdictional appellate issues. Reynoso did not need to preserve error on her challenges to the justice court’s subject-matter jurisdiction because parties may not waive challenges to subject-matter jurisdiction and may raise them for the first time on appeal.” Reynoso v. Dibs US, Inc., No. 14-16-00323-CV, 2017 Tex. App. LEXIS 11260, at *4 (App.—Houston [14th Dist.] Dec. 5, 2017)

Here is one where the party preserved a complaint about evidence of a prior conviction:

  • Evidence: “Nugent and CAO, Inc. [*23] timely objected to the introduction of evidence of Nugent’s prior conviction. When the estate offered evidence of Nugent’s prior conviction at trial, appellants’ counsel immediately objected on the grounds that the conviction was “more than ten years old and cannot be used as evidence.” The trial court permitted the estate to admit evidence of Nugent’s 2004 conviction and to engage in limited questioning of witnesses on this issue. These actions adequately preserved the evidentiary issue for appeal. See Tex. R. App. P. 33.1;” Richard Nugent & Cao, Inc. v. Estate of Ellickson, No. 14-16-00839-CV, 2017 Tex. App. LEXIS 11125, at *22-23 (App.—Houston [14th Dist.] Nov. 30, 2017)

You must comply with the other pertinent rules:

  • Affirmative Defenses: “Second, we note that all three of Duchene’s arguments, i.e., that Hernandez failed to mitigate his damages, that Duchene made payment to Hernandez, and that there was a possible accord and satisfaction, center on affirmative defenses that must be affirmatively pled by a defendant. See Tex. R. Civ. P. 94 (listing “accord and satisfaction” and “payment” as affirmative defenses that must be pled by a defendant); . . . . A defendant must expressly raise affirmative defenses of this nature in his responsive pleadings, or else he waives the right to raise them at a later time, including in a response to a motion for summary judgment. . . .; Tex. R. Civ. P. 95 (“When a defendant shall desire to prove payment, he shall file with his plea an account stating distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.”). In the present case, Duchene failed to raise any of these affirmative defenses in his response to Hernandez’s pleadings. We therefore conclude that Duchene waived his right to raise any of those defenses in response to Hernandez’s motion for summary judgment.” Duchene v. Hernandez, No. 08-15-00087-CV, 2017 Tex. App. LEXIS 11324, at *19-20 (App.—El Paso Dec. 6, 2017)
  • Factual Sufficiency: “In addition, the Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting on appeal the factual sufficiency of the evidence to support a jury finding. . . . . Where, as here, there is no motion for new trial raising factual sufficiency challenges to the jury’s verdict, “[f]actual sufficiency is not preserved for appeal.” . . . . Father’s points of error regarding legal and factual sufficiency are overruled. Accordingly, we affirm the trial court’s judgment.” In re N.N.G., No. 06-17-00080-CV, 2017 Tex. App. LEXIS 11288, at *1-2 (App.—Texarkana Dec. 6, 2017)
  • Legal Sufficiency: “On appeal, Father argues that the evidence is legally and factually insufficient to support the jury’s finding that termination of his parental rights was in the child’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2017). Because we find that Father has failed to preserve these issues for appeal, we affirm the trial court’s judgment. We have previously held that, “[a]s a prerequisite to bringing a legal sufficiency challenge in a parental-rights termination appeal following a jury trial, a parent must raise the legal sufficiency challenge with the trial court in either: “(1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict (JNOV); (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial.”” . . . . Here, [*2] because Father failed to challenge the legal sufficiency of the evidence supporting the jury’s verdict in any of the manners specified above, or otherwise before the trial court, we find that he has failed to preserve his legal sufficiency challenge for appeal.” In re N.N.G., No. 06-17-00080-CV, 2017 Tex. App. LEXIS 11288, at *1-2 (App.—Texarkana Dec. 6, 2017)
  • Nonjoinder: “The record does not reflect that appellant attempted to join his wife as an indispensable party at any point in this forcible detainer action, either in the justice court or the county court at law. Nor did he raise the issue in a verified objection. See Tex. R. Civ. P. 93(4) (requiring a party to verify “[t]hat there is a defect of parties, plaintiff or defendant.”). He raised the issue of his wife’s non-joinder in his response to Fannie Mae’s motion for summary judgment, but HN1 raising a parties defect challenge in a response to a [*5] motion for summary judgment will not preserve the issue for review. . . . As a result, appellant failed to preserve any complaint regarding his wife’s non-joinder and cannot raise it on appeal.” Feuerbacher v. Fannie Mae, No. 05-16-01117-CV, 2017 Tex. App. LEXIS 10934, at *4-5 (App.—Dallas Nov. 21, 2017)
  • Statute of Frauds: “In her first issue, Mary complains that the trial court erred by implicitly finding that the statute of frauds did not bar the enforcement of the oral agreement regarding the ownership of the 40-Acre Tract. She argues that a contract for the sale of real estate is required to be in writing and signed by the person charged with the agreement, citing Section 26.01, subsections (a) and (b), of the Texas Business and Commerce Code. TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(4) (West 2015). Nevertheless, the statute of frauds is an affirmative defense that must be specifically pled, or it is waived. . . .; see also TEX. R. CIV. P. 94. Since Mary did not assert [*3] the statute of frauds in her pleadings in the trial court, any complaint regarding it has been waived.” McCurry v. Farmer, No. 06-17-00052-CV, 2017 Tex. App. LEXIS 11207, at *2-3 (App.—Texarkana Dec. 1, 2017)

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

  • Evidence: “The Fitzgeralds assume that the trial court’s ruling that King’s testimony was unreliable was based on O’Neal’s testimony. While the trial court’s letter ruling does not expressly support this assumption, we conclude that the Fitzgeralds failed to preserve any complaint regarding the admission of O’Neal’s opinion testimony. The record reflects that, after their initial objections regarding the propriety of O’Neal’s testimony and his qualifications, the Fitzgeralds did not raise any further objection to O’Neal’s testimony. Likewise, at no point did the Fitzgeralds obtain a ruling on their objections to the propriety of O’Neal’s testimony or his qualifications, so those objections are not preserved for our review. See Tex. R. App. P. 33.1(a)(2) (preservation of error generally requires trial court ruling).” Fitzgerald v. Water Rock Outdoors, LLC, No. 07-16-00330-CV, 2017 Tex. App. LEXIS 11216, at *11 (App.—Amarillo Dec. 1, 2017)
  • Severance: “By his second issue, Hyde contends the trial court’s judgment [*8] must be reversed because the court improperly severed a single cause of action when it failed to include in the severance the attorney’s fee claim associated with Hawk’s request for a declaration of his license rights. . . . After review of the record, we find the issue is not preserved for our review. Hyde filed a written objection to Hawk’s motion for severance, but the motion did not mention Hawk’s claim for attorney’s fees. The objection generally contended that severance of the license issue from Hawk’s other claims would cause “injustice, prejudice, and inconvenience” to the parties and the court by turning a single lawsuit into two, leading to two judgments and eventually requiring two appeals. The objection did not cite the Dalisa case or contend Hawk was seeking to sever a single cause of action for declaratory relief.  The rules of appellate procedure require, as a prerequisite to presentation of a complaint on appeal, that a party make a timely request, objection, or motion stating the specific grounds, and secure the court’s ruling on its request, objection, or motion, or object to the trial court’s refusal to rule. . . . Tex. R. Civ. P. 33.1 [*9] . From review of the record before us we are satisfied the trial court made no ruling on the issue presented as Hyde’s second appellate issue. The issue therefore presents nothing for our review, and is overruled for that reason.” Hyde v. Hawk, No. 07-14-00059-CV, 2017 Tex. App. LEXIS 11007, at *7-9 (App.—Amarillo Nov. 27, 2017)

You must create a record which shows the making of your complaint:

  • Record: “Husband also argues that since neither he nor his attorney were present at the May 31, 2016 hearing, they could not waive making the record that rule 13 requires and we thus must reverse the judgment. See Tex. R. App. P. 13.1(a) (court reporter must take a full record of all proceedings unless excused by agreement of the parties). However, to preserve an error for appeal, a party must object to the court reporter’s failure to record the proceedings. See Tex. R. App. P 33.1(a); . . . As we have noted, [*10] the record shows that Husband’s counsel was present at the hearing. And it is not accurate to say that counsel had no notice of the hearing—she obtained the hearing setting and served the notice. Although Husband’s counsel was present, nothing shows that she requested a record or objected to the court reporter’s failure to make one. Moreover, the trial court’s unchallenged findings state that Husband presented no evidence, and Husband does not explain how a record might facilitate our review.” Gow v. Sevener, No. 05-16-01037-CV, 2017 Tex. App. LEXIS 11196, at *9 (App.—Dallas Nov. 30, 2017)

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

  • Evidence: “Here, when the Department asked each witness whether they believed that Mother’s parental rights should be terminated, Mother objected on the ground that the question “[c]all[ed] for a conclusion.” No further explanation was provided. After this objection was overruled, both witnesses answered in the affirmative. We find that Mother’s objection that the Department’s question called for a conclusion was not specific enough to inform the trial court that she was objecting under Rule 701 of the Texas Rules of Evidence. “An objection at trial that does not comport with a point of error on appeal preserves nothing for review.”” M.M.W. & N., No. 06-17-00076-CV, 2017 Tex. App. LEXIS 11206, at *3 (App.—Texarkana Dec. 1, 2017)

I won’t extend this update with the cases where parties did not raise their complaints in the trial court.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

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Error Preservation in Texas Civil Cases, November 26, 2017

 

November 26, 2017

Dear All:

A party resisting sanctions did not have to use the phrase “death penalty” to preserve its complaints about sanctions on appeal, since it “strenuously opposed” the imposition of sanctions, and said why :

  • Sanctions: “We agree with [*12] Bryant that relators did not utilize the phrase “death penalty” in their response to the motion for sanctions and they did not utilize that phrase at the hearing. It is clear that HN5 arguments that are not presented to the trial court will not be considered in a petition for writ of mandamus. See In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1991) (orig. proceeding); In re Abney, 486 S.W.3d 135, 138 (Tex. App.—Amarillo 2016, orig. proceeding); In re Advance Payroll Funding, Ltd., 254 S.W.3d 710, 714 (Tex. App.—Dallas 2008, orig. proceeding). However, relators strenuously opposed the imposition of sanctions by written response and by copious argument before the trial court. They argued that sanctions were not appropriate given that they had produced the discovery at issue, the discovery period extended through the end of November, and that Rule 215 did not allow for the requested sanction. Under these circumstances, we do not believe that the omission of the phrase “death penalty” in relators’ pleadings or argument was fatal to relators’ defenses to the imposition of sanctions. See generally Tex. R. App. P. 33.1.” In re Nueces Hosp. GP, LLC, No. 13-17-00453-CV, 2017 Tex. App. LEXIS 10691, at *11-12 (App.—Corpus Christi Nov. 14, 2017)

Here are a couple of cases in which the court held that the party preserved its complaint about the nature of the notice given:

  • Notice: “In his reply brief, Allibone argues that appellees “for the first time ever” in their brief to this Court represent that the letter notifying him of the complaint “[did] not really disclose the actual nature of the complaint being investigated” and that the trial court’s consideration of the complaint in “secretive proceedings” to the extent it varied in substance from the notification letter amounted to reversible error. Allibone misconstrues appellees’ position. Consistent with their arguments before this Court, appellees’ arguments to the trial court included that the Board’s investigation was driven by the scope of the complaint, that it was not required to provide a detailed list of the allegations but the general “nature of the complaint,” and that the notice to Allibone complied with this requirement.” Allibone v. Robinson, No. 03-17-00360-CV, 2017 Tex. App. LEXIS 10883, at *14 n.5 (App.—Austin Nov. 21, 2017)
  • Notice: “In his reply brief, Allibone argues that appellees “for the first time ever” in their brief to this Court represent that the letter notifying him of the complaint “[did] not really disclose the actual nature of the complaint being investigated” and that the trial court’s consideration of the complaint in “secretive proceedings” to the extent it varied in substance from the notification letter amounted to reversible error. Allibone misconstrues appellees’ position. Consistent with their arguments before this Court, appellees’ arguments to the trial court included that the Board’s investigation was driven by the scope of the complaint, that it was not required to provide a detailed list of the allegations but the general “nature of the complaint,” and that the notice to Allibone complied with this requirement. See Tex. Occ. Code § 154.053 (requiring Board to notify physician of “nature of the complaint”).” Allibone v. Freshour, No. 03-17-00357-CV, 2017 Tex. App. LEXIS 10884, at *13 n.6 (App.—Austin Nov. 21, 2017)

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

  • Indispensable Party: “The record does not reflect that appellant attempted to join his wife as an indispensable party at any point in this forcible detainer action, either in the justice court or the county court at law. Nor did he raise the issue in a verified objection. See Tex. R. Civ. P. 93(4) (requiring a party to verify “[t]hat there is a defect of parties, plaintiff or defendant.”). He raised the issue of his wife’s non-joinder in his response to Fannie Mae’s motion for summary judgment, but raising a parties defect challenge in a response to a [*5] motion for summary judgment will not preserve the issue for review. . . . As a result, appellant failed to preserve any complaint regarding his wife’s non-joinder and cannot raise it on appeal.” Feuerbacher v. Fannie Mae, No. 05-16-01117-CV, 2017 Tex. App. LEXIS 10934, at *4-5 (App.—Dallas Nov. 21, 2017)

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

  • Evidence: “Benson does not direct us to any point in the record in which she asserted in the trial court that Maddox’s statement, contained in the collision report, constitutes a present sense impression. Thus, her stated ground for admission in the trial court does not comport with her ground raised on appeal, and error, if any, is waived.” Benson v. Chalk, No. 01-16-00112-CV, 2017 Tex. App. LEXIS 10907, at *18 (App.—Houston [1st Dist.] Nov. 21, 2017)

 

There were several cases addressing situations where the party failed to raise his, her, or its complaint in the trial court, but I’ll not burden you with hose.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Texas Error Preservation Update, November 11, 2017

November 11, 2017

Dear All:

Since I’m running about a week behind, I won’t include those cases in which the parties failed to raise their complaint at all in the trial court:

Lack of standing, as we know, can be raised for the first time on appeal:

  • Standing: “In its brief, Peoples asserts that the Administrator waived her complaint that it lacked standing in the Probate Court because she first raised the issue in her motion for new trial, because the parties entered into a Rule 11 Agreement regarding the issues to be decided by the Probate Court, and because she should have raised the issue by way of motion in limine before the other issues were tried. Although standing may be challenged by a plea to the jurisdiction, since it is a component of subject-matter jurisdiction, it cannot be waived and can be challenged for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); In re Estate of Velasco, 214 S.W.3d 213, 216 (Tex. App.—El Paso 2007, no pet.). Further, as a component of subject-matter jurisdiction, standing may not be conferred by agreement.” In re Estate of Chapman, No. 06-17-00051-CV, 2017 Tex. App. LEXIS 10478, at *6 n.5 (App.—Texarkana Nov. 9, 2017)

In terms of the timeliness of an objection to an expert witness, it remains a good idea to move to exclude the testimony before trial, and when the evidence is offered, though if you have done the former that may allow some delay in the latter :

  • Expert witness: “We begin by addressing Theis’s argument that Goodyear’s objection to Woehrle’s testimony was not timely. Theis maintains that because Goodyear did not object during or immediately after Woehrle’s testimony—but instead waited until the day after to assert its motion to strike Woerhle’s testimony—Goodyear failed [*5] to preserve error regarding the reliability of Woerhle’s testimony. We disagree. A party can “preserve a complaint that the scientific evidence is unreliable [by objecting] to the evidence before trial or when the evidence is offered.” Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Here, Goodyear objected to the reliability of Woerhle’s opinion testimony in a pretrial motion to strike and then later—on the same day as, but after a different witness testified—moved for a directed verdict. And then the next morning, Goodyear moved to strike Woehrle’s testimony on various reliability grounds. . . . .Under these circumstances, we cannot say that Goodyear’s objection came too late.” Theis v. Goodyear Tire & Rubber Co., No. 03-16-00266-CV, 2017 Tex. App. LEXIS 10336, at *4-5 (Tex. App.—Austin Nov. 3, 2017)

Should you, heaven forbid, have to deal with a sanctions order, here is how you preserve error as to the particularity of the trial court’s grounds for sanctions:

  • Sanctions: “After the trial court found that Pajooh’s allegations were groundless and granted appellees’ motion for sanctions during the hearing on the motion, Pajooh informed the court that he needed to know the basis for the court’s finding that his claims were groundless and brought in bad faith. In his motion for new trial, Pajooh argued that the trial court committed reversible error by failing to comply with Rule 13’s particularity requirement. Because he raised a challenge to the trial court’s sanctions order based on the lack of particularity in a post-judgment motion and requested fact findings supporting [*10] the trial court’s conclusion that his claims were groundless and brought in bad faith, we conclude that Pajooh has preserved this issue for our review.” Pajooh v. Miller, No. 01-16-00927-CV, 2017 Tex. App. LEXIS 10181, at *9 (Tex. App.—Houston [1st Dist.] Oct. 31, 2017)

In a lengthy discussion of the facts of the case and other cases it distinguished, the Fourteenth Court held that a defendant did not waive its motion to dismiss for failure to file an expert report by not filing it for a while:

  • Expert Report: “Based on the record before us, we conclude that Colonnades’s actions were not inconsistent with an intent to assert the right to dismissal under section 74.351 and did not waive that right. See Jernigan, 111 S.W.3d at 157; Seifert, 2008 Tex. App. LEXIS 9595, 2008 WL 5341045, at *1-3; cf. Spinks v. Brown, 211 S.W.3d 374, 378-79 (Tex. App.—San Antonio 2006, no pet.) (finding waiver of the right to seek dismissal by party that (1) fully participated in pretrial discovery; (2) fully participated in a jury trial and an appeal; (3) filed motion to dismiss after reversal on appeal and one month before the start of a second trial; (4) waited 1,400 days before filing the motion to dismiss; and (5) stated during the motion to dismiss hearing that he intentionally chose not to raise the expert report issue before the first trial); [*31] In re Sheppard, 197 S.W.3d 798, 801-02 (Tex. App.—El Paso 2006, orig. proceeding) (finding waiver of the right to seek dismissal by party that (1) waited 1,183 days to move for dismissal; (2) extensively participated in and completed discovery; and (3) announced ready for trial). Therefore, the trial did not err by concluding that Colonnades did not waive its right to seek dismissal of the case under section 74.351.” Alexander v. Colonnades Health Care Ctr. Co., No. 14-16-00500-CV, 2017 Tex. App. LEXIS 10167, at *30-31 (Tex. App.—Houston [14th Dist.] Oct. 31, 2017)

You must preserve a factual sufficiency point in a motion for new trial:

  • Factual Sufficiency: “After a jury trial, a complaint (1) that the evidence was not factually sufficient to support a jury’s finding or (2) that a jury’s finding was against the great weight and preponderance of the evidence must be raised in a motion for new trial or it is waived. See Tex. R. Civ. P. 324(b); . . . . D. Factual Sufficiency Challenges. Although Appellants waived their legal sufficiency challenges, they preserved their factual sufficiency complaints in their motion for new trial. Appellants argue the jury’s failure to find bribery is against the great weight of the evidence.” Cotter & Sons, Inc. v. BJ Corp., No. 04-16-00186-CV, 2017 Tex. App. LEXIS 9995, at *7-8 (Tex. App.-San Antonio Oct. 25, 2017)

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

  • Evidence: “Garcia and Hicks’s only objection in the trial court to Exhibit 11 (the final order in the administrative proceeding) was that it was not a final order because it had been appealed. However, Garcia and Hicks now argue on appeal that the trial court abused its discretion in admitting Exhibit 11 because it was not relevant and its probative value was substantially outweighed by the danger of unfair prejudice. Garcia and Hicks may not advance a complaint on appeal that is different from the objection they made at trial. . . . .; Tex. R. App. P. 33.1(a). We conclude that Garcia and Hicks have failed to preserve their complaints about Exhibit 11 for appellate review.” Garcia v. Davila, No. 04-16-00733-CV, 2017 Tex. App. LEXIS 9984, at *7 (Tex. App.—San Antonio Oct. 25, 2017)
  • Jury Charge: “In their objections to the jury charge appellants stated, with respect to Question No. 16: “The question is not material to any issue in this cause. As such, there in [sic] legally no evidence and factually insufficient evidence for the submission.” Although appellants raised the issues of legal and factual sufficiency in their objections to the jury charge, their reasoning was that the question was immaterial to any issue in the underlying action. On appeal, appellants present an entirely different argument, contending it was error to submit the question because the debts from Dr. Tarbox’s contracts were incurred before forfeiture of corporate privileges. Because appellants failed to present the same challenge on appeal as they did in their objections to the jury charge, the alleged error has been waived for appeal.” Lowry v. Tarbox, No. 04-16-00416-CV, 2017 Tex. App. LEXIS 9990, at *34 (Tex. App.—San Antonio Oct. 25, 2017)

You have to comply with the pertinent rules:

  • Capacity: “The record reflects that ATS raised the issue of ADE’s failure to register in an answer and a plea to the jurisdiction. The appropriate procedural device to challenge ADE’s capacity to maintain suit would have been through a verified motion to abate or a verified plea in abatement. . . . By failing to file a verified motion to abate or plea in abatement, ATS has waived its complaint regarding ADE’s capacity to sue.” Hunt v. City of Diboll, No. 12-17-00001-CV, 2017 Tex. App. LEXIS 10430, at *53 (App.—Tyler Nov. 8, 2017)
  • Dismissal: “The record reflects that the court appointed the Department as emergency temporary conservator of Brie in April 2016. Therefore, the dismissal date pursuant to Section 263.401 could have become appropriate in April 2017. See Act [*7] of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, sec. 263.401, Tex. Gen. Laws 2108, 2112-13 (amended 1997, 2001, 2005, 2007, 2015, 2017). After an extension was granted, the trial on the merits in this case did not commence until July 31, 2017. However, Della failed to file a motion to dismiss the suit prior to the commencement of the trial. Therefore, Della waived her right to object to the court’s failure to dismiss the suit.” In re B.H.R., No. 06-17-00081-CV, 2017 Tex. App. LEXIS 10352, at *6-7 (App.—Texarkana Nov. 7, 2017)
  • Evidence: “In order to preserve the issue for appellate review, whether it is the testimony of one’s own witness or that of the opponent, the appellant must make an offer of proof or a bill of exception to show what the witness’s testimony would have been. In re A.M., 418 S.W.3d 830, 840 (Tex.App.–Dallas 2013, no pet.); see also Perez v. Lopez, 74 S.W.3d 60, 66-67 (Tex.App.–El Paso 2002, no pet.); Anderson v. Higdon, 695 S.W.2d 320, 325 (Tex.App.–Waco 1985, writ ref’d n.r.e.). The appellate court cannot make a harm analysis without an offer of proof unless the substance was apparent from context. In re A.M., 418 S.W.3d at 840. General comments on the nature of the testimony, the reason it is being offered, or why it is admissible are not sufficient. Id. The appellate court may be able to discern from the record the nature of the evidence and the propriety of the [*8] trial court’s ruling, but without an offer of proof it cannot make a harm analysis because it cannot speculate what would have been asked or how a witness would have responded.” Hernandez v. Moss, No. 08-13-00315-CV, 2017 Tex. App. LEXIS 10572, at *7-8 (App.—El Paso Nov. 9, 2017)
  • Findings: “Fox-Gibson did assert her right to a portion of the TRS plan benefits accruing during her marriage to Gibson in her application. However, after the probate [*13] court entered its findings of fact and conclusions of law that did not contain any determination of what portion, if any, of the TRS plan benefits was community property, Fox-Gibson did not request additional findings of fact and conclusions of law. By failing to timely request additional findings and conclusions, Fox-Gibson forfeited her complaints related to the trial court’s failure to determine what portion of the plan benefits was community property or her entitlement to them.” Estate of Gibson, No. 06-17-00059-CV, 2017 Tex. App. LEXIS 9963, at *12-13 (Tex. App.—Texarkana Oct. 25, 2017)
  • Peremptory Strikes: “To preserve error with respect to a trial court’s failure to dismiss a veniremember for cause, an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use. . . . . ; see Tex. R. App. P. 33.1. Here, challenges for cause were asserted as to the complained-of veniremembers, but it is unclear from the record as to which attorney asserted those challenges. In any event, the record reflects that C.S.’s counsel did not request a peremptory strike on either veniremember 11 or veniremember 13, did not exhaust his peremptory strikes, and did not request additional peremptory strikes. Accordingly, this part of C.S.’s fourth issue has not been preserved for review, and we overrule it.” In the Interest of K.R., No. 13-17-00281-CV, 2017 Tex. App. LEXIS 10021, at *11 (Tex. App.—Corpus Christi Oct. 26, 2017)
  • Property Division: “Finally, Fox-Gibson asserts that the probate court erred in denying Fox-Gibson any portion of the TRS plan benefits. Fox-Gibson argues that the probate court should have found that she was entitled to a portion of the TRS plan benefits by reason of (1) the improvements to the benefits during her marriage to Gibson, (2) a right to reimbursement, and (3) the portion accrued during marriage. First, Fox-Gibson did not assert a cause of action asserting a theory of recovery based on either a right of reimbursement or improvements to the TRS plan benefits during marriage. Since she did not assert those theories of recovery in the probate court, the complaints were not preserved for our review. Tex. R. App. P. 33.1(a)(1) (requiring a timely request to the trial court as a prerequisite to presenting a complaint for appellate review).” Estate of Gibson, No. 06-17-00059-CV, 2017 Tex. App. LEXIS 9963, at *12 (Tex. App.—Texarkana Oct. 25, 2017)
  • Waiver: “Godoy contends on appeal that permitting a waiver of section 51.003(a)’s [*9] two-year statute of limitations contravenes public policy because a waiver of a statute of limitations is permissible only when the waiver is specific and limited to a reasonable time period.. . .According to Godoy’s appellate brief, “A general agreement in advance to waive or not plead the statute of limitations on a particular obligation is void as against public policy.” We need not address Godoy’s contention that the waiver provision to which he agreed is void. This is so because he did not affirmatively plead this “matter constituting an avoidance or affirmative defense” in his answer as required under Texas Rule of Civil Procedure 94.” Godoy v. Wells Fargo Bank, N.A., No. 14-16-00599-CV, 2017 Tex. App. LEXIS 10173, at *8-9 (Tex. App.—Houston [14th Dist.] Oct. 31, 2017)

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

  • Consolidation: “Cogsdil first asserts the trial court abused its discretion by denying his motion to consolidate Fincher’s appeal from justice court with Cogsdil’s suit against Fincher and the other parties. . . . As noted, no written order denying Cogsdil’s motion to consolidate was made part of the record. Nothing is therefore preserved for our review and the issue is waived. Tex. R. App. P. 33.1(a)(2) (the record must show the trial court ruled on the motion, either expressly or implicitly).” Cogsdil v. Jimmy Fincher Body Shop, LLC, No. 07-16-00303-CV, 2017 Tex. App. LEXIS 10166, at *3-4 (Tex. App.—Amarillo Oct. 30, 2017)
  • Pleadings: “Fox-Gibson also faults the probate court’s refusal to consider her motion to strike Ward’s petition. She points to an exchange at a hearing on her objections to the proposed judgment, which occurred several months after the final hearing. However, the record of this hearing shows that, when Fox-Gibson attempted to assert her motion to strike at that hearing, the probate court responded that the motion had been heard at a docket control conference hearing, which took place over a month before the final hearing. Fox-Gibson did not include the transcript of the docket control conference hearing in the reporter’s record. HN5 When an appellant fails to bring forward a complete reporter’s record, we must presume that it would support the probate court’s assertion that the motion had been previously heard and decided. . . . . Further, even assuming the exchange at the post-trial hearing showed the probate court refused to rule on her motion to strike, to preserve any complaint for appellate review, Fox-Gibson was required to object to the refusal. See Tex. R. App. P. 33.1(a)(2)(B). The record shows she failed to object to the court’s refusal to rule on her motion. Therefore, Fox-Gibson has failed to preserve this complaint for our review.” Estate of Gibson, No. 06-17-00059-CV, 2017 Tex. App. LEXIS 9963, at *8 n.5 (Tex. App.—Texarkana Oct. 25, 2017)

You have to make your complaint timely:

  • Affidavit: “And the affidavit to which she refers was attached to her motion to set aside the divorce decree and motion for new trial, filed after the hearing on her motion to set aside the informal settlement agreement, and was not before the trial court in ruling on Kramer’s motion to set aside the informal settlement agreement. See Tex. R. App. P. 33.1(a).” Kramer v. Kastleman, No. 03-13-00133-CV, 2017 Tex. App. LEXIS 10326, at *19 (Tex. App.—Austin Nov. 3, 2017)
  • Venue: “We conclude that the trial court reasonably could have determined that David’s delay in seeking a hearing and a ruling on his venue motion, along with his filings [a summary judgment response and continuance motion] that were not subject to his venue objection, amounted to a waiver of his venue objection.” Smith v. Smith, No. 14-16-00467-CV, 2017 Tex. App. LEXIS 10524, at *9 (App.—Houston [14th Dist.] Nov. 9, 2017)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation Update, October 21, 2017

October 21, 2017

Dear All:

Here is a case worth reading, in which the court held that the arguments made on appeal were “more accurately characterized as facts or explanations supporting” the argument that the expert’s report was “conclusory because it failed to explain how and why the breach caused the injury.” Thus, the arguments on appeal were “sufficiently similar to or encompassed by those [the parties] raised before the trial court.” The Court engaged in an extensive discussion as to why the arguments at trial preserved the arguments made on appeal:

  • Expert Report: “Davis also contends that the Hospital Parties waived the following “objections” to Dauphinee’s report because (1) they raised them for the first [*15] time on appeal and (2) they were asserted after the 21-day deadline set by the Act: • The report does not state Gordon thought the patient’s pain to be inordinate; • The report does not define “inordinate pain;” • There is no factual basis for the conclusion that Gordon would have acted had he known about new findings; and • There was no factual basis for the proposition that Davis’s overnight condition would have changed the outcome in any way. . . . the objections Davis now claims the Hospital Parties have waived cannot fairly be characterized as new objections subject to waiver. They are more accurately characterized as facts or explanations supporting the Hospital Parties’ argument that Dauphinee’s report is conclusory because it failed to explain how and why the breach caused the injury. Because the arguments Hospital Parties raise on appeal are sufficiently similar to or encompassed by those they [*19] raised before the trial court, we conclude that the Hospital Parties’ arguments were sufficiently preserved.Humble Surgical Hosp., LLC v. Davis, No. 14-16-01026-CV, 2017 Tex. App. LEXIS 9685, at *18-19 (App.—Houston [14th Dist.] Oct. 17, 2017)

When you raise limitations in your pleading, response, and briefing, you will have preserved that defense:

  • Limitations: “The county judge failed to address in his findings whether limitations barred the claims made by Reda’s estate that Reda owned the property when she died. On appeal, the Estate argues that Ray and Linda failed to properly raise limitations as a defense to its claim that the disputed tracts were owned by Reda when she died. We address the Estate’s waiver argument before we address the issues that Ray and Linda raise in their appeal. Limitations is an affirmative defense that must be affirmatively pled as a defense to another party’s claims. Tex. R. Civ. P. 94 (Affirmative Defenses). The pleadings and brief that Ray and Linda filed in the trial court raise statute of limitations defenses. A response they filed to the Estate’s motion asking that the county judge order the disputed properties delivered to the Estate raises limitations as a defense to the Estate’s request. Additionally, following the hearing, and before the county judge decided the dispute, Ray and [*8] Linda filed a brief discussing their statute of limitations defenses in detail. By awarding the tracts to Reda’s estate, the county judge implicitly rejected Ray and Linda’s claim that the Estate’s claims were barred by limitations. Tex. R. App. P. 33.1(a)(2)(A) (providing that an error is preserved if the complaint is presented in a manner sufficient to make the trial court aware of the complaint and the trial court ruled on the request, either expressly or by implication). We hold that Ray and Linda did not waive their limitations defense.” In re Estate of Allison, No. 09-16-00066-CV, 2017 Tex. App. LEXIS 9800, at *7-8 (App.—Beaumont Oct. 19, 2017)

A motion to disregard can preserve a legal sufficiency complaint:

  • Legal Sufficiency: “BGI argues Lyon did not preserve his argument that there was no or insufficient evidence to support the jury’s finding that the lien was invalid because he did not raise this argument in his motions for new trial. In his motion to disregard the jury’s answer to Question 4, however, Lyon argued that the question instructed the jury that the lien was “invalid” if the lien amount exceeded the statutory cap, and “[f]urthermore, there is no evidence to support a finding that the subject lien was even invalid.” This is sufficient to preserve his no-evidence challenge for our review. Lyon v. Bldg. Galveston, Inc., No. 01-15-00664-CV, 2017 Tex. App. LEXIS 9610, at *9 n.5 (App.—Houston [1st Dist.] Oct. 12, 2017)

You must get a ruling on your complaint:

  • Summary Judgment: “The Sellers also argue that we should consider grounds asserted in their summary judgment motions that were not ruled on by the trial court. However, grounds or motions that are not ruled on by the trial court are not preserved for appellate review and, thus, are improper for us to consider. See Tex. R. App. P. 33.1; . . . . Accordingly, we do not consider the Sellers’ argument that Raymond James lacked authority to bind any of the Sellers to a PSA with LNO because the trial court never ruled on the Sellers’ partial summary judgment based on agency principles.” Le Norman Operating LLC v. Chalker Energy Partners III, LLC, No. 01-15-01099-CV, 2017 Tex. App. LEXIS 9297, at *49 n.6 (App.—Houston [1st Dist.] Oct. 3, 2017)

Your complaint must be timely:

  • Contract: “For the first time on appeal appellees also assert that Barforough failed to establish the existence of a valid contract, noting that the record does not include a copy of the Agreement signed by Barforough. However, appellees relied on the Agreement in their summary-judgment motion and failed to challenge the Agreement in the trial court. Thus, they failed to preserve this issue for appeal. See Tex. R. App. P. 33.1.” Barforough v. Nationstar Mortg., LLC, No. 01-16-00266-CV, 2017 Tex. App. LEXIS 9414, at *7 n.3 (App.—Houston [1st Dist.] Oct. 5, 2017)
  • Jury Trial: “But a party who perfects its right to a jury trial may nevertheless waive that right by failing to act when the trial court proceeds with a bench trial. . . .To complain on appeal that it was denied its right to a jury trial, a party must object to the trial court’s action or affirmatively indicate [*5] that it intends to exercise its right to a jury trial. . . . At the April 2017 de novo hearing, Mother asserted no objection when the district court proceeded to conduct a bench trial. We see that the district court addressed the issue at the first de novo hearing in December 2016, but we also notice that months later on April 25, 2017, one day before the April 2017 de novo hearing began, Mother filed a “De Novo Hearing Brief for the Court” that specifically identified her request for a jury trial as one of the issues at the upcoming de novo hearing. In its May 2, 2017 letter informing the parties of its decision, the district court stated of Mother’s request for a jury trial, “Although this was specified as an issue for appeal, no testimony or argument was presented on this point; therefore, the matter has been waived and is denied.” Similar language is contained in the final judgment. Our review is limited to the record on appeal. Considering the conflicting state of the record, the lengthy period of time between the December 2016 and April 2017 de novo hearings, and the well-settled law on this topic, we cannot conclude that Mother was relieved of the requirement to complain [*6] when the district court proceeded without a jury at the April 2017 de novo hearing. We overrule Mother’s only issue.” In re K.H., No. 02-17-00192-CV, 2017 Tex. App. LEXIS 9388, at *4-6 (App.—Fort Worth Oct. 5, 2017)

Your complaint must comply with other rules:

  • Findings and Conclusions: “Michael did not file a notice of past due findings and conclusions after his original request for findings and conclusions was deemed filed on April 29, 2016. Thus, because Michael failed to timely file a notice of past due findings and conclusions, he waived any error in the trial court’s failure to file findings of fact and conclusions of law.” Burley v. Burley, No. 02-16-00119-CV, 2017 Tex. App. LEXIS 9582, at *6 (App.—Fort Worth Oct. 12, 2017)
  • Factual Sufficiency: “the Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting a factual sufficiency of the evidence supporting a jury finding complaint on appeal. . . . . see Tex. R. Civ. P. 324(b)(2). Since neither Mac nor Meg filed a motion for new trial challenging the factual sufficiency of the evidence supporting the jury’s verdict, their factual sufficiency complaints are not preserved for appeal.In the Interest of L.G.D. & A., No. 06-17-00061-CV, 2017 Tex. App. LEXIS 9462, at *2-3 (App.—Texarkana Oct. 10, 2017)

Because I got behind (owing to some deadlines on the day job), I won’t post the decisions in the last three weeks or so that held error was not preserved because it was not raised in the trial court.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation Update, September 17, 2017

September 17, 2017

Dear All:

Once again, I’ve left off the cases in which parties simply did not raise their complaints in the trial court.

Some complaints one can raise for the first time on appeal–for example, the sufficiency of evidence in a bench trial to support the reasonableness of attorney’s fees:

  • Attorney’s Fees: “Huey-You also argues that the amount of the award was supported by insufficient evidence to show that it was either necessary or reasonable. As with his segregation argument, Huey-You failed to object to the quantum or quality of the evidence regarding the reasonableness of the requested attorney’s fees when the evidence was presented to the trial court. But reasonableness is a fact issue to be determined by the fact-finder; therefore, a challenge to the reasonableness of fees is a challenge to the sufficiency of the evidence to support the award, which may be raised for the first time on appeal. [*8] See Tex. R. App. P. 33.1(d);” Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, at *7-8 (Tex. App.—Fort Worth Sep. 14, 2017)

There were a whole host of cases in which parties preserved error:

  • Arbitration: “Comporting with these requests for arbitration in the trial court, on appeal, appellant challenges, among other aspects of the final decree that are unrelated to the arbitration requests, (1) language within the decree concerning the child’s health insurance, (2) the trial court’s resolution of how the parties should partition taxes, (3) matters related to toll charges and insurance [*16] on the Lexus, and (4) the just and right division of assets that appellee had allegedly not disclosed at mediation. We therefore reject appellee’s argument that appellant waived his right to arbitration on the ground that “issues complained of in [a]ppellant’s [request for arbitration in the trial court] are wholly different than those presented in this appeal.”” S.P. v. N.P., No. 02-16-00278-CV, 2017 Tex. App. LEXIS 8361, at *15-16 (Tex. App.—Fort Worth Aug. 31, 2017)
  • Continuance: “Mother’s counsel moved to abate the trial after the trial court denied her motion to exclude the evidence of adoption by a nonrelative, in the context of arguing that section 263.0021 had not been complied with. But counsel also raised the other three family code sections in the trial court in the context of his exclusion-of-evidence request, and he urged the trial court to resolve that issue “short of a trial.” Thus, we conclude he requested that the trial court not “move forward” because of a lack of compliance with those sections of the family code as well. See Tex. R. App. P. 33.1(a)(1).” In the Interest of J.N., No. 02-17-00179-CV, 2017 Tex. App. LEXIS 8544, at *15 n.3 (Tex. App.-Fort Worth Sep. 7, 2017)
  • Discovery: “Here, Cho clearly and unequivocally objected to each of the 116 requests for production on the grounds that they were “not relevant to the jurisdictional facts plead and essential to justify plaintiff’s opposition to the special appearance.” Rather than consider the merits of those objections, the trial court merely overruled all of Cho’s objections, finding that they were “obscured” by “numerous unfounded objections and therefore waived.” In effect, the trial court gave GTC carte blanche to engage in full merits-based document discovery despite the pendency of Cho’s special appearance. This was a clear abuse of discretion.” In re Jaeman Cho, No. 02-17-00254-CV, 2017 Tex. App. LEXIS 8547, at *4 (Tex. App.—Fort Worth Sep. 7, 2017)
  • Exemplary damages: “Asserting the same arguments it makes on appeal, Goodyear responded by referring to the statutory “economic damages” definition and arguing that there was (i) no evidence that either daughter suffered any actualized monetary losses and (ii) no legally or factually sufficient evidence that Vicki suffered actualized monetary losses beyond the $30,000 for yard services and $170,000 in medical expenses discussed in Part II.C.9. The trial court was thus fully apprised of the parties’ agreement that actual economic or pecuniary losses were required to calculate awardable exemplary damages in this case. By rejecting Goodyear’s arguments and entering judgment on the verdict, the trial court impliedly found that the jury-found pecuniary losses were also actual pecuniary losses. Tex. R. Civ. P. 279. Goodyear’s response to appellees’ motion for judgment preserved Goodyear’s trial court argument for appeal. See Tex. R. App. P. 33.1(a).” Goodyear Tire & Rubber Co. v. Rogers, No. 05-15-00001-CV, 2017 Tex. App. LEXIS 8382, at *30 n.2 (Tex. App.—Dallas Aug. 31, 2017)
  • Motions: “Guevara additionally argues, however, that Rodriguez waived any objection to the sufficiency of the enforcement motions by not raising special exceptions to the motions prior to trial, citing Texas Rules of Civil Procedure 90 and 91. We note that, although no written response is in our record, these objections were the very subject of Rodriguez’s motion for judgment and the judge was made aware of them before the judgment was signed. In any event, these rules do not support Guevara’s position. . . . Because Rodriguez is not the party seeking reversal in this case, Rule 90 could have no application to her complaints regarding Guevara’s enforcement motions. . . .Rule 91 merely requires special exceptions be specific and intelligible and therefore has no application under these circumstances. [*13] Finding no merit in any of Guevara’s arguments concerning the trial court’s denial of his motions to enforce, we overrule his second issue.” In the Interest of A.G., No. 14-16-00341-CV, 2017 Tex. App. LEXIS 8614, at *12-13 (Tex. App.—San Antonio Sep. 12, 2017)

Your complaint must comply with the pertinent rules:

  • Evidence: “Crawford did not explain to the trial court why her testimony regarding [*9] the oral statements of Emmons was admissible. Further, since Crawford did not make an offer of proof or file a formal bill of exceptions as to what her testimony would have been, we have no record to enable us to determine whether the testimony would have been admissible. Therefore, any error in the trial court’s ruling has not been preserved for our review.” In re Estate of Emmons, No. 06-17-00007-CV, 2017 Tex. App. LEXIS 8476, at *8-9 (Tex. App.-Texarkana Sep. 7, 2017)
  • Findings and Conclusions: “While the record reflects that Evelyn filed a request for findings of fact and conclusions of law, when the trial court failed to file its findings and conclusions, Evelyn did not file a notice of past due findings within thirty days of her original request. See Tex. R. Civ. P. 297. As a result of this failure, we imply all necessary findings to support the trial court’s order.” In re January, No. 12-16-00335-CV, 2017 Tex. App. LEXIS 8461, at *4 (Tex. App.—Tyler Sep. 6, 2017)
  • Quantum Meruit: “In its fourth issue, the Law Office contends that, even if it is not entitled to recover under the contingent-fee agreement, the trial court erred in granting Deadman’s motion for summary judgment because the Law Office is [*9] entitled to recover in quantum meruit. However, the Law Office did not plead a quantum meruit claim in the trial court. Therefore, it has waived any quantum meruit claim it may have had. See Tex. R. Civ. P. 166a(c); see also Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990) (per curiam) (“While the theory of quantum meruit might have provided Redden with an alternate ground of recovery, Redden did not plead this theory. The failure to plead quantum meruit is more than relevant to the outcome of this case; it is dispositive.”) (citation omitted). Accordingly, we overrule the Law Office’s fourth issue.” Law Offices of John S. Young, P.C. v. Deadman, No. 03-17-00148-CV, 2017 Tex. App. LEXIS 8661, at *8-9 (Tex. App.—Austin Sep. 13, 2017)

You must obtain a ruling on your complaint from the trial court, which can be implied:

  • Affidavit: “In its petition, ESA argues Carlson’s affidavit, appended to the response to ESA’s venue motion, contained inadmissible parol evidence. The Carlsons argue the affidavit merely reflects the factual background of the transaction. We need not address the issue. The record does not contain a ruling by the trial court on a parol evidence objection. Tex. R. App. P. 33.1(a);” In re Energy Servs. Acquisitions II, No. 07-17-00252-CV, 2017 Tex. App. LEXIS 8626, at *3 n.3 (Tex. App.—Amarillo Sep. 11, 2017)
  • Sanctions: “An appellate court may not address the merits of an issue that has not been preserved for appeal. To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. See Tex. R. App. P. 33.1. As a result, a party must take proper action to make the trial court aware of the complaint and obtain a ruling, either express or implied. See Tex. R. App. P. 33.1(a); . . . .The record shows that on March 23, 2012, Scott Pelley P.C. [*79] and Pelley filed a motion to impose sanctions. On June 4, 2012, at the conclusion of a pretrial hearing on several motions, the trial court carried the motion for the imposition of sanctions, stating: “[The] [m]otion [for] [c]ontempt and for [s]anctions is to be carried along and heard at the time of trial, so that will be part of the evidence at that time, so I’ll hear it and then make a ruling on that if I can’t talk you guys into resolving this thing.” However, the record does not contain an order denying the motion for the imposition of sanctions. The record shows that after a trial on the merits, the trial court signed a final judgment stating that “[a]ll other relief not expressly granted is denied.”. . . . The trial court’s judgment was a final judgment that had the effect of denying the motion for the imposition of sanctions. See Lehmann, 39 S.W.3d at 195; In re A.B.P., 2013 Tex. App. LEXIS 10746, 2013 WL 4568012, at *5; Memphis, Inc., 2005 Tex. App. LEXIS 5867, 2005 WL 1774973, at *2. Accordingly, we conclude Scott Pelley P.C. and Pelley obtained a ruling on their motion for the imposition of sanctions preserving the second part of issue seven for appellate review.” Scott Pelley P.C. v. Wynne, No. 05-15-01560-CV, 2017 Tex. App. LEXIS 8228, at *78-80 (Tex. App.—Dallas Aug. 28, 2017)

You must make your complaint in a timely fashion:

  • Administrative Law: “In his reply brief, Dr. Swate emphasizes that the Board violated Board Rule 187.28(b)(1)(C), which required an expert report to set out the standard of care specifically. See 22 Tex. Admin. Code § 187.28(b)(1)(C) (2010) (Tex. Med. Bd., Discovery), repealed by 39 Tex. Reg. 3959 (2014), adopted by 39 Tex. Reg. 5749 (2014). In support of his argument, Dr. Swate cites a finding by the ALJs that Dr. Powell did not identify a standard of care and apply it to Dr. Swate’s practice in violation of Rule 187.28(b)(1)(C). However, this finding was particular to the standard of care regarding periodic problem-focused medical examinations, an allegation for which Dr. Swate was not found to be in violation of the Act. Additionally, this alleged violation by the Board was not raised to the ALJs, and therefore was not preserved for appeal. See Tex. R. App. P. 33.1.” Swate v. Tex. Med. Bd., No. 03-15-00815-CV, 2017 Tex. App. LEXIS 8291, at *16 n.6 (Tex. App.—Austin Aug. 31, 2017)
  • Administrative Law: “Dr. Swate alleges the Board violated section 164.005 of the Act, which requires that a formal complaint allege with reasonable certainty each specific act allegedly constituting a violation of a specific statute or rule. See Tex. Occ. Code § 164.005(f). In the proceedings below, the Board was ordered to amend its complaint twice in response to motions by Dr. Swate requesting more specific allegations. However, Dr. Swate raised no objection to the Board’s Second Amended Complaint, the live pleading at the time of the hearing. Because this alleged violation was not preserved for appeal, we do not consider it. See Tex. R. App. P. 33.1.” Swate v. Tex. Med. Bd., No. 03-15-00815-CV, 2017 Tex. App. LEXIS 8291, at *16 n.7 (Tex. App.—Austin Aug. 31, 2017)
  • Arbitration: “appellant contends the trial court erred by denying appellant’s “Motion for New Trial and Motion to Modify Arbitration Holding” because (1) there was an evident miscalculation [*13] by the arbitrator and (2) the arbitrator “exceeded his authority in assessing RCC’s legal fees and arbitration costs against Appellant who should have been found to be the prevailing party.” . . .The threshold question is whether appellant timely filed a motion to vacate or modify the arbitration award. The parties agree the TAA applies. Under the TAA, “[a] motion to vacate, to modify, or to correct an arbitration award must be raised or considered before or simultaneously with a motion to confirm the award.” Hamm, 178 S.W.3d at 269. Further, “a party that moves to vacate, to modify, or to correct an arbitration award, and adduces evidence in support, only after the award has been confirmed and final judgment rendered has waived that challenge-or, at least, a trial court does not abuse its discretion if it overrules such a post-judgment motion.” Id. at 268. RCC filed a motion to confirm the arbitration [*14] award in the trial court on March 8, 2016. Appellant was aware of the filing of this motion, had an opportunity to challenge the award, and failed to do so. While appellant filed a “Claimant’s Motion to Correct Award” with the AAA on March 16, 2016, before the trial court confirmed the arbitration award, appellant did not challenge the arbitration award in the trial court until after the award was confirmed and final judgment rendered. Cf. Sydow v. Verner, Liipfert, Bernhard, McPherson & Hand, Chartered, 218 S.W.3d 162, 171 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (concluding appellant did “timely place[] the issue of prejudgment interest before the court when he applied to have amended award confirmed (and when he responded to [the appellee’s] application to confirm the original award),” despite also filing a motion to reconsider in the arbitration forum); Brown v. Potter Concrete Residential, Ltd., No. 05-13-00585-CV, 2014 Tex. App. LEXIS 7080, 2014 WL 2993809, at *2 (Tex. App.—Dallas June 30, 2014, pet. denied) (mem. op.) (“Although the Browns did not specifically move to vacate the award, they did file a response arguing the applications to confirm should be denied.”). On this record, we conclude the trial court did not abuse its discretion by denying appellant’s untimely “Motion for New Trial and Motion to Modify Arbitration Holding.”” Quickset Concrete, Inc. v. Roeschco Constr., Inc., No. 05-16-00509-CV, 2017 Tex. App. LEXIS 8733, at *12-14 (Tex. App.—Dallas Sep. 13, 2017)
  • Attorneys’ Fees: “In a bench trial, the objection that attorney’s fees are not segregated as to specific claims must be raised before the trial court issues its ruling. Raising the issue for the first time post-judgment, such as in a motion for new trial, is untimely and any error is waived. See Horvath v. Hagey, No. 03-09-00056-CV, 2011 Tex. App. LEXIS 3451, 2011 WL 1744969, at *6 (Tex. App.—Austin May 6, 2011, no pet.) (mem. op. on reh’g); see also Red Rock Props. 2005, Ltd. v. Chase Home Fin., L.L.C., No. 14-08-00352-CV, 2009 WL 1795037, at *6-7 (Tex. App.—Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.). Huey-You did not object based on a failure to segregate before the trial court issued its ruling and, thus, any error was waived. See Tex. R. App. P. 33.1(a)(1); see also Tex. R. Evid. 103(a).” Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, at *7 (Tex. App.—Fort Worth Sep. 14, 2017)
  • Jury Argument: “In his fifth issue, Garza contends the trial court should have granted him a new trial due to improper jury argument by Red Wing. Garza complains of the following closing argument: “In the last four and a half years, Mr. Garza has worked two months. And those two months were at Red Wing.” Garza asserts this argument was improper because it suggested he was lazy and had brought his lawsuit in bad faith. Garza did not object when this argument was made. He first raised the issue in his motion for new trial, asserting the argument was incurable. Garza’s motion for new trial was overruled by operation of law. A complaint of incurable argument may be asserted and preserved in a motion for new trial, even without an objection and ruling during the trial. . . . see Tex. R. Civ. P. 324(b)(5). Incurable jury argument [*24] is rare, however, because typically retraction of the argument or instruction from the court can cure any probable harm. . . . A party claiming incurable harm must persuade the court that, based on the record as a whole, the offensive argument was so extreme that a juror of ordinary intelligence could have been persuaded to agree to a verdict contrary to that to which she would have agreed to but for such argument. Id. Even if we assume the argument in question was improper, it did not rise to the level of incurable argument. The trial court did not abuse its discretion in failing to grant Garza a new trial due to the jury argument. We overrule Garza’s fifth issue.” De Leon v. Red Wing Brands of Am., Inc., No. 05-15-01517-CV, 2017 Tex. App. LEXIS 8229, at *23-24 (Tex. App.—Dallas Aug. 28, 2017)
  • Recusal: “”Unlike disqualification of a judge based on a constitutional prohibition, which can be raised at any point in a proceeding, a statutory basis for recusal of a judge can be waived by failing to file a motion to recuse or by failing to assert the claimed error by a point on appeal.” Sweetwater Austin Properties, L.L.C. v. SOS All., Inc., 299 S.W.3d 879, 890 (Tex. App.—Austin 2009, pet. denied); see Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982). When a judge is assigned, a party that objects to the assignment must file an objection or motion within seven days of receiving notice of the assignment. See GOV’T § 74.053(b), (c). Ferguson neither timely objected to Judge Griffin’s assignment nor filed a motion to recuse him. Therefore, she waived her complaint. Tex. R. App. P. 33.1; see GOV’T § 74.053(c);” Ferguson v. Tex. DOT, No. 11-15-00110-CV, 2017 Tex. App. LEXIS 8327, at *26 (Tex. App.—Eastland Aug. 31, 2017)

Your complaint on appeal must comport with your complaint at trial:

  • Evidence: “On appeal, William argues that the trial court should have excluded Jones’ notes under Rule 403 of the Texas Rules of Evidence. We find that he has failed to preserve this appellate point for our review. Tex. R. App. P. 33.1(a)(1). William referred to Jones’ therapy notes during his own testimony. When Jones’ therapy notes were later offered into evidence, William stated, “It’s my first time seeing them. Other than that, I don’t have any objection.” William failed to argue that the notes should be excluded under Rule 403. Therefore, he did not preserve his first point of error, which argues that “[t]he unfairly prejudiced therapy notes . . . confused the issues and mislead the court.”” In the Interest of N.V.R., No. 06-17-00023-CV, 2017 Tex. App. LEXIS 8301, at *7-8 (Tex. App.—Texarkana Aug. 31, 2017)

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases August 27, 2017

August 26, 2017

Dear All:

You have to get a ruling on your objections, and just because you lost on the merits in a bench trial does not necessarily mean the trial court implicitly overruled the objections you made:

  • Attorney’s Fees: “The trial court awarded the City attorney’s fees in the final judgment. The Trevinos argue that by awarding the City attorney’s fees, the trial court implicitly denied the Trevinos’ motion and overruled [*20] their objections at the bench trial. A trial court’s judgment determining the merits of a party’s request for attorney’s fees in a bench trial and a trial court’s ruling on objections to the admissibility of evidence submitted in support of that request are neither alternatives nor concomitants. . . . A trial court’s ruling on one does not imply a ruling on the other. . . . In short, a trial court’s ruling on objections to evidence at a bench trial or on a motion to exclude this evidence is not implicit in its judgment on the merits after the bench trial; it is not reasonable to conclude that the trial court sustained or overruled the objections or granted or denied the motion to exclude based on the trial court’s judgment on the merits.. . . Thus, it is not reasonable to conclude that by awarding the City attorney’s fees the trial court implicitly denied the Trevinos’ motion to exclude or overruled their objections. . . .Because the Trevinos failed to secure a ruling, they waived the objections.” Trevino v. City of Pearland, No. 14-16-00298-CV, 2017 Tex. App. LEXIS 8093, at *19-20 (App.—Houston [14th Dist.] Aug. 24, 2017)

Your complaint must be timely:

  • Arbitration: “The threshold question is whether appellant timely filed a motion to vacate or modify the arbitration award. The parties agree the TAA applies. Under the TAA, “[a] motion to vacate, to modify, or to correct an arbitration award must be raised or considered before or simultaneously with a motion to confirm the award.” . . . . Further, “a party that moves to vacate, to modify, or to correct an arbitration award, and adduces evidence in support, only after the award has been confirmed and final judgment rendered has waived that challenge—or, at least, a trial court does not abuse its discretion if it overrules such a post-judgment motion.” . . . . RCC filed a motion to confirm the arbitration award in the trial court on March 8, 2016. Appellant was aware of the filing of this motion, had an opportunity to challenge the award, and failed to do so. While appellant filed a “Claimant’s Motion to Correct Award” with the AAA on March 16, 2016, before the trial court confirmed the arbitration award, appellant did not challenge the arbitration award in the trial court until after the award was confirmed and final judgment rendered. . . . On this record, we conclude the trial court did not abuse its discretion by denying appellant’s untimely “Motion for New Trial and Motion to Modify Arbitration Holding.”Quickset Concrete, Inc. v. Roeschco Constr., Inc., No. 05-16-00509-CV, 2017 Tex. App. LEXIS 7739, at *8-9 (App.—Dallas Aug. 15, 2017)

You must comply with the pertinent rules:

  • Recusal: “In Bailey’s suit seeking to modify the parent-child relationship that she filed in May 2016, Bailey filed a motion to recuse the trial judge on July 13, 2016, the trial court signed an order on July 20, 2016, denying the motion to recuse, and a judge assigned by the regional administrative judge also signed an order on August 10, 2016, denying the motion to recuse. See Tex. R. Civ. P. 18a. To the extent Bailey is complaining about bias by the trial court in the underlying proceeding of this appeal, she has failed to preserve error. See id. (requiring verified motion asserting one or more grounds listed in rule 18b and not “based solely on the judge’s ruling in the case”);” Bailey v. Gasaway, No. 03-16-00281-CV, 2017 Tex. App. LEXIS 7968, at *11 n.4 (App.—Austin Aug. 22, 2017)

The rest of the error preservation rulings I  ran across in the last couple weeks all involved the failure of parties to raised their complaint at all in the trial court, so I decided to not burden this blog with them

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

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation in Texas Civil Appeals, August 14, 2017

 

August 6, 2017

Dear All:

Here is a case which addressed the specificity requirement of Rule 33.1, and held that the objection was specific enough–a holding that we do not see very often:

  • Evidence: “[A]n objection must be specific enough to allow the trial court to understand the exact nature of the alleged error, and it must be interposed at such a point in the proceedings to allow the trial court to cure the alleged error, if any. Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex. App.—El Paso 1993, writ denied). Further, the objection at trial must comport with the argument made on appeal. Phippen v. Deere & Co., 965 S.W.2d 713, 716 (Tex. App.—Texarkana 1998, no writ). . . .In emphasizing [one] particular segment of the transcript, Quiroga overlooks several other objections made by Jones during trial, which objections specifically addressed the admission of the billing records and accompanying affidavits from the three medical providers and the lack of notice given to him in regard to that particular evidence. For instance, following a discussion between the parties and the trial court relating to the admission of the records, Jones stated, “I will object to this in particular but — it’s just a photocopy. I would object to all three. I haven’t seen any of the three before. I also object to this one as a photocopy, one for 4600 some odd dollars.” Shortly afterwards, the trial court denied Jones’ objection to the evidence and admitted the medical bills and accompanying affidavits from all three of the providers. Therefore, Jones specifically objected at trial to the admission of the complained-of evidence due to Quiroga’s failure to provide him with the billing records and [*5] accompanying affidavits before trial. On appeal, Jones contends that Quiroga failed to comply with the notice requirements found in Section 18.001 of the Texas Civil Practice and Remedies Code. Despite his failure to recite a specific rule on which his objection was made, Jones was nonetheless specific enough to allow the trial court to understand the exact nature of the alleged error. In addition, Jones’ objection was interposed at a point during the proceedings that allowed the trial court to rule on the substance of the error, which it did. Jones’ objection at trial was aligned with the very purpose of Section 18.001’s notice requirement. He therefore has preserved this issue on appeal.” Jones v. Quiroga, No. 06-17-00016-CV, 2017 Tex. App. LEXIS 7260, at *4-5 (App.—Texarkana Aug. 3, 2017)

Here are a couple of cases in which courts held that a defendant did not waive its venue complaint:

  • Venue: “Finally, the plaintiffs contend that we should deny mandamus relief because Lowe’s “did not seek the appropriate procedural remedy that was available from the Starr County Court.” According to the plaintiffs, Lowe’s “chose not to exercise its adequate legal remedy in Starr County—a motion to vacate.” The plaintiffs assert that Lowe’s should have filed a motion for the Starr County court to vacate its venue ruling and transfer the case to Cameron County. We disagree. After the plaintiffs nonsuited the Starr County suit and filed suit in Hidalgo County, Lowe’s immediately pursued a motion to transfer or dismiss in that court. Under these circumstances, we reject the contention that Lowe’s should be denied mandamus relief because [*28] it should have filed a motion to vacate in the Starr County case. The plaintiffs have not offered any authority that a motion to vacate was Lowe’s sole alternative remedy under these facts, and we decline to engraft such a requirement in this situation. We conclude that Lowe’s sufficiently preserved error. See generally Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014) (discussing preservation of error under the appellate rules); see also Tex. R. App. P. 33.1. Moreover, counsel for Lowe’s had contacted the plaintiffs’ counsel to see if they would agree to transfer the case to Cameron County or instead, force Lowe’s to go ahead with its sanctions motion. Instead, the plaintiffs nonsuited and refiled in Hidalgo County, thereby effectively preventing Lowe’s from pursuing any action in the Starr County court. In other words, as a pragmatic matter, there was no live cause of action pending in Starr County because the plaintiffs had already nonsuited that cause of action.” In re Lowe’s Home Ctrs., L.L.C., No. 13-16-00493-CV, 2017 Tex. App. LEXIS 7106, at *27-28 (App.—Corpus Christi July 28, 2017)
  • Venue: “Here, Brown asserts Ken-Do waived its objection to venue based entirely on an eight-month delay between the date Ken-Do filed its motion to transfer and the date of the hearing on the motion. The date of the hearing does not, however, show when Ken-Do requested its motion be set. See Bristol v. Placid Oil Co., 74 S.W.3d 156 (Tex. App.–Amarillo 2002, no pet.) (date of hearing on motion to transfer does not show movant delayed in requesting [*4] the hearing); see also Tex. R. Civ. P. 87 (“Except on leave of court each party is entitled to at least 45 days notice of a hearing on the motion to transfer.”) Moreover, the record does not show that Ken-Do committed any acts indicating it did not intend to pursue the motion or that were otherwise inconsistent with its position in the motion. . . . We conclude the record fails to show Ken-Do waived its objection to venue.” Ken-Do Contracting, L.P. v. F.A. Brown’s Constr., L.L.C., No. 05-16-00373-CV, 2017 Tex. App. LEXIS 7434, at *3-4 (App.—Dallas Aug. 7, 2017)

With all due respect, here is one I think the court got wrong, based on the recent Supreme Court holdings in United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 WL 2839842, 2017 Tex. LEXIS 652, at *37 (June 30, 2017); BP Am. Prod. Co. v. Red Deer Res., LLC, No. 15-0569, 2017 WL 1553112 2017 Tex. LEXIS 410, at *31 (Tex. Apr. 28, 2017); USAA Tex. Lloyds Co. v. Menchaca, No. 14-0721, 2017 Tex. LEXIS 361, at *6 n.8 (Tex. Apr. 7, 2017).  I would encourage you to read those cases, about when and how one may preserve a complaint as to an immaterial jury question, if you’ve not had the opportunity to do so.:

  • Jury Charge: “A trial court may disregard a jury finding if it is immaterial. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). A jury finding is immaterial if the question should not have been submitted, or if it was properly submitted but has been rendered immaterial by other findings. Id.; City of The Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 752 (Tex. App.—Fort Worth 2008, pet. dism’d) (citing Se. Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999)). A question that calls for a finding beyond the province of the jury, such as a question of law, may be deemed immaterial. Spencer Eagle, 876 S.W.2d at 157; City of The Colony, 272 S.W.3d at 752. Here, Musallam contends the jury’s finding on Question No. 1 was immaterial because it asked the jury to make a finding on a question of law—whether the June 18, 2013 agreement was an enforceable contract. Musallam was required to preserve this complaint below. See C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 784-86 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (applying preservation rules to complaint that trial court erred by submitting question of law to the jury); see also Lakota Energy Ltd. P’ship v. Merit Mgmt. Partners I, L.P., No. 02-13-00057-CV, 2016 Tex. App. LEXIS 12378, 2016 WL 6803181, at *4-5 (Tex. App.—Fort Worth Nov. 17, 2016, pet. filed) (mem. op.) (same). To preserve his charge complaint, Musallam had to timely and plainly make the trial court aware of the complaint and obtain a ruling. See Tex. R. Civ. P. 272-274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43-44 (Tex. 2007); State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (op. on reh’g). [*13] The record shows that Musallam did not object to the submission of Question No. 1 to the jury. Indeed, the record shows that during the charge conference, Musallam insisted that the submission of Question No. 1 was necessary. Although Musallam did not object to submitting Question No. 1, Ali did, arguing that question should not have been submitted to the jury because as a matter of law, the June 18, 2013 agreement was a valid, binding contract. In response, Musallam’s counsel argued that it was necessary to submit Question No. 1 to the jury because the evidence raised an issue of fact as to the question of contract formation—namely, whether his and Ali’s reaching an agreement as to the price of Fanci Candy’s assets prior to closing was a material term of the agreement. Thus, the record is unmistakable that Musallam acquiesced to submitting the issue of contract formation to the jury. It was not until his post-verdict motions—that is, it was not until after that issue was submitted to the jury and the jury found against him—that Musallam first objected that Question No. 1 asked the jury to decide a question of law. This was too late to preserve error. See C.M. Asfahl Agency, 135 S.W.3d at 786 (holding that post-verdict [*14] motion to disregard jury finding on question of law submitted in the jury charge was insufficient to preserve error where complaining party failed to object to submission of the question at issue); see also Lakota Energy, 2016 Tex. App. LEXIS 12378, 2016 WL 6803181, at *4-5 (holding similarly). To preserve error in the submission of Question No. 1, Musallam was required to timely and plainly make the trial court aware of his complaint and obtain a ruling, and by failing to do so, he waived any error in its submission. See Tex. R. Civ. P. 272-274; Ledesma, 242 S.W.3d at 43-44; Payne, 838 S.W.2d at 241. It follows that he waived any complaint predicated upon the allegedly erroneous submission of Question No. 1, including the complaint that the trial court erred by denying his motion to disregard the jury’s finding on Question No. 1, as well as the complaint that the trial court erred by entering judgment consistent with the jury’s affirmative finding on Question No. 1.” Musallam v. Ali, No. 02-16-00282-CV, 2017 Tex. App. LEXIS 7359, at *12-14 (App.—Fort Worth Aug. 3, 2017)

You have to assert your complaint in a timely fashion:

  • Evidence: “Thus, even assuming the rules of evidence applied to D.S.’s section-54.02(j) waiver and transfer hearing and the trial court erred by admitting the testimony that D.S. objected to, any such error was harmless because Corporal Banes subsequently provided the very same testimony without objection. Tex. R. App. P. 44.1; see Bay Area, 239 S.W.3d at 235-36 (Tex. 2007) (holding that appellant failed to preserve complaint that trial court erred in admitting testimony over his objection because the same evidence was later admitted without objection); see also H.Y., 512 S.W.3d at 473-75 (holding that any error in admission of objected-to evidence in juvenile transfer proceeding was harmless because virtually all of the complained-of evidence was contained in a probation report, which was admitted without objection). We overrule D.S.’s second issue.” In re D.S., No. 02-17-00050-CV, 2017 Tex. App. LEXIS 7067, at *16 (App.—Fort Worth July 27, 2017)
  • Inability to Pay: “Husband’s seventh issue complains that the trial court allowed Wife to proceed without paying court fees after the court sustained the district clerk’s challenge to Wife’s affidavit of inability to pay. We overrule this issue because husband received a new trial on that basis but allowed the new trial to proceed without further objection and therefore waived any subsequent complaint in this regard. . . .Husband, however, identifies only one time when he raised his complaint in the trial court—his July 23, 2013 new trial motion attacking the July 10, 2013 SAPCR judgment. The trial court ultimately granted that motion. Thus, when Husband raised this complaint in the trial court, he received all the relief he requested. Further, because he did not request any other relief, we conclude that Husband did not preserve error in the trial court. See Tex. R. App. P. 33.1(a).” In the Interest of B.T.G., No. 05-16-00370-CV, 2017 Tex. App. LEXIS 7503, at *16-17 (App.—Dallas Aug. 8, 2017)

You have to comply with other rules:

  • Capacity: “In their first issue, the Kaptchinskies contend that Huffman lacked legal capacity to pursue the breach-of-contract claim because “no legal authority for Huffman to act on behalf of her father’s estate was shown.” Although the Kaptchinskies correctly characterize “capacity” as a party’s legal authority to sue or be sued, capacity is not, as they contend, a jurisdictional issue. . . . Indeed, if a party’s lack of capacity is not raised in a verified pleading, the complaint is waived. See TEX. R. CIV. P. 93; . . . . Because the Kaptchinskies failed to raise Huffman’s alleged lack of capacity in a verified pleading, the issue is waived.” Kaptchinskie v. Estate of Kirchner, No. 14-15-01080-CV, 2017 Tex. App. LEXIS 7012, at *3 (App.—Houston [14th Dist.] July 27, 2017)
  • Findings and Conclusions: “By his fifth issue, appellant contends that the trial court erred when it failed to issue findings of fact and conclusions of law. See Tex. R. Civ. P. 296. However, appellant failed to file notice of past due findings of fact and conclusions of law as required by Texas Rule of Civil Procedure 297. See Tex. R. Civ. P. 297. Accordingly, appellant has waived this issue.” Redd v. Redd, No. 13-15-00467-CV, 2017 Tex. App. LEXIS 7375, at *8 (App.—Corpus Christi Aug. 3, 2017)
  • Parties: “In a related argument, the Kaptchinskies argue that there was a defect of parties because although their contract was with both Charles and Betty Kirchner, the breach-of-contract claim was asserted only by Charles’s estate—or more accurately, by Huffman, in her capacity as the estate’s administratrix. This argument, too, has been waived. An objection to a defect of parties must be raised before the case is called for trial. See TEX. R. CIV. P. 37. Because the Kaptchinskies first asserted that there was a defect of parties after the case was called for trial, we do not address this argument.” Kaptchinskie v. Estate of Kirchner, No. 14-15-01080-CV, 2017 Tex. App. LEXIS 7012, at *5 (App.—Houston [14th Dist.] July 27, 2017)
  • Warnings: “No reporter’s record was made of the hearings at issue—the April 6, 2016 status hearing or the August 10, 2016 permanency hearing. Mother points to [*13] nowhere in the appellate record where she objected in the trial court to the absence of the records of the hearings or the alleged failure of the trial court to give the statutory warnings. She therefore did not preserve a complaint about the absence of the records or the trial court’s alleged failure to provide the statutory warnings. See Tex. R. App. P. 13.1. . . . Mother does not cite any cases applying fundamental error to support her contention that the trial court’s alleged failure to orally recite the statutory warnings is fundamental error. See Tex. R. App. P. 38.1(i). Based on the law cited above, we decline to extend the doctrine to this case. ” In the Interest M.R., No. 02-17-00071-CV, 2017 Tex. App. LEXIS 7608, at *12-13 (App.—Fort Worth Aug. 10, 2017)

Because I piddled around and did not get this timely posted, it has three weeks worth of holdings in it.  I’ll not include all the ones which merely reaffirmed that you don’t preserve error if you do not raise your complaint in the trial court.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com