Error Preservation in Texas Civil Cases, July 5, 2018

July 5, 2018

Hidy Ho.

 

The Supreme Court once again weighed in on whether an implied ruling could preserve an objection to summary judgment evidence.  While not as clear as I would like, I still think a written ruling of some kind is probably required, but in any event everyone should keep following the best practice of getting a written order as to your objections, to avoid an expensive, tedious, confusing error preservation fight that does not get you any closer to the resolution of your case:

Back in 2017, the Supreme Court held that when “[t]he record contains no order sustaining the objection,” an objection to “late-filed summary-judgment evidence. . . . has been waived,” because “[e]ven objected-to evidence remains valid summary-judgment proof ‘unless an order sustaining the objection is reduced to writing, signed, and entered of record.'” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017). Rincones failed to deal with the language in 33.1(a)(2)(A) allowing an implied ruling on an objection, but at least it had straightforward language requiring a written ruling.

Last week, without mentioning Rincones, the Supreme Court potentially injected uncertainty into this area. Seim v. Allstate Tex. Lloyds, No. 17-0488, 2018 Tex. LEXIS 648 (June 29, 2018). Seim v. Allstate Tex. Lloyds dealt with an objection to the form of an affidavit, apparently the failure of a notary to sign a jurat. Seim, at *5-6. In Seim, the Supreme Court first seemed to endorse the holding in Rincones by saying that “[w]e hold the Fourth and Fourteenth courts have it right,” endorsing those courts’ holdings that “it is incumbent upon the party asserting objections [as to an affidavit’s form] to obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver,” citing Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.-Houston [14th Dist.] 2000, pet. denied), and that ” a trial court’s ruling on an objection to summary[-]judgment evidence is not implicit in its ruling on the motion for summary judgment,” citing Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.-San Antonio 2000, no pet.). But instead of invoking Rincones, and holding that there was no “order sustaining the objection . . . reduced to writing, signed and entered of record,” the Court went off on the implied ruling tangent, saying that “nothing in this record serves as a clearly implied ruling by the trial court on Allstate’s objections” to a summary judgment affidavit. Pursuing the implied ruling tangent further, the Supreme Court pointed out that “even without the objections, the trial court could have granted summary judgment against the [Plaintiffs] if it found that their evidence did not generate a genuine issue of material fact,” a fact which Defendant “has argued . . . in its briefing to this Court.” Seim, at *11-12. The Court then held that the objection as to form was waived because Defendant “failed to obtain a ruling from the trial court on its objections to the affidavit’s form,” leaving us to wonder if that ruling must be in writing, or if an implied ruling is good enough, or whether a ruling on a motion for summary judgment may be an acceptable implied ruling if the trial court could not have granted summary judgment if the objected to evidence created a fact issue-thus putting the courts of appeals back in the position of having to address the objected to evidence. Seim, at *12-13. In any event, the Supreme Court reversed and remanded the case to the court of appeals, for it to consider whether the Defendant was “still entitled to summary judgment on other grounds.” Seim, at *13.

Interestingly, here is a case in which a trial court did issue a written ruling on objections to summary judgment evidence (depositions), albeit in an informal (though signed) fashion, by taking a copy of the objections, writing a ruling on each one, and signing it:

Summary Judgment: “Turning to Yarbrough’s contention that GRC’s objections are waived because the trial court did not enter a written ruling, we disagree.  “To preserve objections to the form of summary-judgment evidence for appeal, a party asserting the objections must obtain a ruling at or before the summary judgment hearing.” Williams v. Bad-Dab, Inc., No. 01-11-00102-CV, 2012 Tex. App. LEXIS 7725, 2012 WL 3776347, at *6 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.) (mem. [*9] op.) (citing Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); Tex. R. App. P. 33.1(a)(1); Tex. R. Civ. P. 166a(f)). Pertinent to this case, objections to leading questions and hearsay are defects in form, and thus, require a ruling for appellate review. Williams, 2012 Tex. App. LEXIS 7725, 2012 WL 3776347, at *6 (stating objection to hearsay is defect in form); Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 (Tex. App. 1998) (specifying objections to question as leading is an objection to form). The party objecting to summary judgment evidence bears 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). One way the burden is satisfied is if the record affirmatively indicates the trial court ruled on the objections. Id. Here, at the summary judgment hearing, GRC filed written objections to portions of Broderick’s and Jones’s presuit deposition testimony. In its written filing, GRC specified which portions of deposition testimony it objected to by referencing the location of the testimony by page and line numbers. Next to each objection, the trial judge noted “Denied” or “G,” and handwrote the phrase “Ordered as noted & Bench filed 2-23-2016” on the first page of GRC’s written objections. The phrase was followed by the trial judge’s signature. Based on this record before us, we conclude the record affirmatively demonstrates the trial court ruled on each of the objections by writing its ruling next [*10] to each objection and including the phrase “Ordered as noted” along with the judge’s signature. See id. Yarbrough contends, however, the judge’s notations of “Denied” or “G” are insufficient to constitute a written ruling, comparing the notations to a docket sheet entry, which are not written rulings. See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Entries made in a judge’s docket are not accepted as a substitute for that record. The order must be reduced to writing, signed by the trial court, and entered in the record.”). Contrary to Yarbrough’s contention, the judge’s notations are not entries to the docket sheet, but rather are written rulings to each objection set forth by GRC. See id. Moreover, the rulings are signed by the trial court. See id. Thus, the filing itself affirmatively demonstrates the trial judge’s rulings. See Mitchell, 310 S.W.3d at 99. Accordingly, because we conclude GRC secured a written ruling as to each of its objections to the deposition testimony of Broderick and Jones, we hold GRC did not waive its objections.” Yarbrough v. McCormick, No. 04-17-00283-CV, 2018 Tex. App. LEXIS 4719, at *8 (App.—San Antonio June 27, 2018).

Some complaints may be raised for the first time on appeal:

Subject Matter Jurisdiction: “On appeal, the United States argues the trial [*4] court properly dismissed the school district’s trespass to try title claim because the trial court, a state district court, lacked jurisdiction over the claim. The United States made this argument in its petition in intervention, but it did not present it to the trial court. However, because HN1 subject matter jurisdiction is an issue that may be raised for the first time on appeal, we will address the United States’s jurisdictional argument.” Rio Grande City Consol. Indep. Sch. Dist. v. City of Rio Grande, No. 04-17-00346-CV, 2018 Tex. App. LEXIS 4712, at *3-4 (App.—San Antonio June 27, 2018)

Your objection must be timely–neither to early nor too late:

Visiting Judge: “Here, Misty’s October 19, 2017 objection is ineffective because she made it before Judge Burgess was assigned to the case on February 6, 2018. See Carnera, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2 (holding pro forma objection “to the assignment of this matter to an associate or visiting [judge] for trial on the merits” contained in petition was insufficient to object to later-assigned [*4] visiting judge). Further, Misty waived any objection by proceeding to trial before Judge Burgess without making him aware of the objection or requesting a ruling before trial commenced on February 12, 2018. See id. (holding any objection to visiting judge was waived where both parties proceeded to trial without requesting a ruling).” In the Interest of S.Q., No. 04-18-00119-CV, 2018 Tex. App. LEXIS 4688, at *3-4 (App.—San Antonio June 27, 2018)

You have to comply with the pertinent rules to preserve your complaint:

Factual Sufficiency: “Appellants’ first issue also appears to challenge the factual sufficiency of the evidence to support the jury’s alter-ego findings. To the extent that it does so, that issue is waived because it was not raised in appellants’ motion for new trial. See Tex. R. Civ. P. 324 (b)(2) (“A point in a motion for new trial is a prerequisite to the following complaints on appeal: . . . [a] complaint of factual insufficiency of the evidence to support a jury finding.”).” Control Works, Inc. v. Seeman, No. 01-17-00212-CV, 2018 Tex. App. LEXIS 4829, at *6 (App.—Houston [1st Dist.] June 28, 2018)

Sometimes, a ruling on an objection can be implied from a trial court’s order:

Accounting: “Nancy filed an application to resign, a notice of conditional resignation, and an application for appointment of a successor dependent administrator. In Paul’s First Objections, he expressly argued, among other things, that Nancy’s application to resign did not comply with Texas Estates Code section 361.001 because she had not provided a full and [*15] verified accounting for the estate. This phase of the proceeding ended on January 12, 2017, when the trial court rendered its First Order accepting Nancy’s resignation and appointing Reiner as dependent administrator. The trial court expressly stated in its First Order that it considered Paul’s objections, and because Paul objected on the ground that the absence of a verified accounting rendered Nancy’s application defective, the trial court’s acceptance of her resignation implicitly overruled Paul’s objection that a verified accounting is required. Cf. Tex. R. App. P. 33.1(a)(2)(A) (a trial court’s implicit ruling on a complaint brought by timely request, objection , or motion is preserved for appellate review).” Estate of Nunu, No. 14-17-00495-CV, 2018 Tex. App. LEXIS 4776, at *14-15 (App.—Houston [14th Dist.] June 28, 2018)

Here is one in which the party preserved a complaint about the lack of specificity in a sanctions order:

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 [*10] 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 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. Cf. Wilner, 2012 Tex. App. LEXIS 9064, 2012 WL 5311147, at *7 (holding party failed to preserve complaint regarding particularity requirement of Rule 13 because party “failed to raise any challenge to the sanctions order before the trial court, either at the trial setting at which the court imposed the sanctions or in a post-judgment motion”).” Massood Danesh Pajooh v. Miller, No. 01-16-00927-CV, 2018 Tex. App. LEXIS 4964, at *9 (App.—Houston [1st Dist.] July 3, 2018)

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

New Trial: “In his fifth issue, Pajooh argues on appeal that the trial court abused its discretion by denying his motion for new trial in light of newly discovered evidence, i.e., appellate court opinions in related cases. Although he asserted various arguments in support of his motion, Pajooh did not argue to the trial court that it should grant him a new trial based on newly discovered evidence. In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court. See Ferrara v. Moore, 318 S.W.3d 487, 496 (Tex. App.—Texarkana 2010, pet. denied). Because Pajooh’s appellate argument does not comport with the arguments he presented in his motion for new trial, Pajooh’s fifth issue has not been preserved for appellate review. See id. Massood Danesh Pajooh v. Miller, No. 01-16-00927-CV, 2018 Tex. App. LEXIS 4964, at *12 (App.—Houston [1st Dist.] July 3, 2018)

There were then a bunch of cases in which parties failed to preserve error by not raising their complaints in the trial court, but I will not go into those here.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

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Error Preservation in Texas Civil Cases, June 23, 2018

June 23, 2018

Hey, Buckaroos:

Well, yes, and here we go again, though there is not much to talk about this week.

Your complaint must be timely:

  • Evidence: “To preserve error for appellate review, the complaining party must timely and specifically object to the evidence and obtain a ruling. Tex. R. App. P. 33.1(a); McShane, 239 S.W.3d at 235. Error is waived if the complaining party allows the evidence to be introduced without objection. Id. Here, McPherson did not object to Melamed’s testimony until it filed its motion to strike days later. We conclude the trial court did not err in determining that McPherson’s delay in objecting to Melamed’s testimony waived any error.” McPherson v. Rudman, No. 05-16-00719-CV, 2018 Tex. App. LEXIS 4601, at *14 (App.—Dallas June 21, 2018)

You must get a ruling on your complaint:

  • Continuance: “Here, we note that Anthony, during trial, presented an oral motion for continuance, without a supporting affidavit. See Tex. R. Civ. P. 251 (providing that continuance may be granted only for “sufficient cause supported by affidavit,” by consent of the parties, or by operation of law). Notwithstanding, however, in his brief, he complains that the trial court “did not rule on the request.” To present a complaint for appellate review the record must show that a complaint was communicated to the trial court by a timely motion, request, or objection, complying with the requirements of the rules [*15] of civil procedure, and that the trial court ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule and the complaining party objected to the refusal. See Tex. R. App. P. 33.1(a). Without a ruling from the trial court on his request for a continuance, we hold that Anthony has not preserved his complaint for review and has thus waived the issue. See id.” Amudo v. Amudo, No. 01-17-00318-CV, 2018 Tex. App. LEXIS 4550, at *14-15 (App.—Houston [1st Dist.] June 21, 2018)

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

  • Participation at trial: “A point of error on appeal must comport with the objection made at trial. In re M.M.W., 536 S.W.3d 611, 613 (Tex. App.—Texarkana 2017, no pet.). To preserve an error for appeal, the complaining party must timely and plainly [*6] make the court aware of the complaint and obtain a ruling. Tex. R. App. P. 33.1(a); In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Here, Jamie complains that the trial court erred in denying her “request to be present and participate in trial.” However, Jamie only requested a continuance of the trial. She did not request a bench warrant, seek permission to participate telephonically, or request other relief to ensure that she could be present and participate in the trial. Because her complaints on appeal do not comport with her request at trial, she has not preserved this issue.” A.M., No. 06-18-00012-CV, 2018 Tex. App. LEXIS 4591, at *5-6 (App.—Texarkana June 22, 2018)

There were a host of cases in which parties did not raise their complaints at trial, and we won’t address those here.

Y’all have a great weekend.  Take good care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

Error Preservation in Texas Civil Cases, June 18, 2018

June 18, 2018

Dear All:

While it may be limited to its facts, or to Texas Citizens Participation Act cases, in a recent case the Supreme Court reiterated that “‘parties are free to construct new arguments [on appeal] in support of issues properly before the Court’,” and that a party is “not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive”:

Dismissal: The court of appeals found that Adams failed to preserve arguments based on community or environmental well-being by failing to raise them in the trial court. S.W.3d at n.4, 2016 Tex. App. LEXIS 6840. We are not convinced that Adams failed to argue community and environmental well-being in the trial court, as he expressly mentioned these concerns at the hearing on the motion to dismiss. Further, the court of appeals imposed too strict a view of error preservation in this context. Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case. Adams raised as an issue in the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about a matter of public concern. He was not required on appeal or at trial  to rely on precisely the same case law or statutory subpart that we now find persuasive. See Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”); . . . Moreover, the unique language of the TCPA directs courts to decide its applicability based on a holistic review of the pleadings. Section 27.006(a) provides that when considering a TCPA motion to dismiss, the court “shall consider the pleadings and supporting and opposing affidavits.” In TCPA appeals, we have decided whether communications are matters of public concern under a de novo standard of review, suggesting that the determination is one of law.” Adams v. Starside Custom Builders, LLC, No. 16-0786, ___WL___, 2018 Tex. LEXIS 327, at *14-16 (Apr. 20, 2018)

While the facts of this Supreme Court opinion reflect some circumstances where the basis for admitting evidence is established, I would continue to recommend that your offer of proof expressly show everything necessary to support the admission of evidence:

Experts: “To testify as an expert, a witness must be qualified, and the proposed testimony must be relevant to the issues in the case and based upon a reliable foundation. Tex. R. Evid. 702; Robinson, 923 S.W.2d at 556. Therefore, to be admissible, the specific video cuts at issue needed to contain Dr. Schilling’s qualifications. If a court ruling excludes evidence, a party must preserve error by filing an offer of proof informing the court of the substance of the excluded evidence. Tex. R. Evid. 103. Dr. Gunn and OGA’s offer of proof shows that Dr. Schilling’s deposition provides adequate testimony as to her qualifications, including details about her background in physical medicine and rehabilitation, her experience teaching residents in that field, her experience as a director of rehabilitation at a hospital, her experience preparing life-care plans as part of her daily practice, and her own examination of Shannon. Based on the offer of proof, which references the transcript of the excluded testimony, Dr. Schilling’s qualifications are not dissimilar from those of Dr. Willingham, whose testimony was admitted without objection. Both doctors completed a physical medicine and rehabilitation residency, served as medical directors at rehabilitation centers, are on a faculty teaching physical medicine and rehabilitation residents, and prepare life-care plans as part of their practices. Of course, without the specific video cuts in the record, we cannot determine with absolute certainty that the qualifications provided in the offer of proof (Dr. Schilling’s deposition) were actually contained in the proffered testimony. To be clear, an offer of proof is not a work-around for the foundational requirement that an expert’s qualifications be proven, and it is limited to the substance of the excluded evidence. See Tex. R. Evid. 103. However, based on the record before us, we are satisfied [*38] that the defense offered testimony of an expert witness whose qualifications were established. We have no reason to believe that the defense excluded its own expert witness’s qualifications from the video cuts offered, nor can we conclude from the record before us that the qualifications discussed in the defense’s offer of proof were in fact excluded from the video cuts that it intended to show the jury.” Gunn v. McCoy, No. 16-0125, 2018 Tex. LEXIS 560, at *36-38 (June 15, 2018)

You can raise a complaint about incurable jury argument after the verdict has been returned:

Jury Argument: “ Mendez points to a question asked by appellees’ counsel during cross-examination of Angelo Romagosa, M.D., a physician specializing in physical medicine and rehabilitation. Romagosa testified that he was retained by Mendez’s counsel’s law firm to review medical records, examine Mendez, and give an opinion about her future medical needs or “life care plan.” After asking several questions about whether Mendez had been married, appellees’ counsel asked: “And your opinions assume that Ms. Mendez is going to continue living in the United States, right?” Romagosa replied, “Yes.” . . . .Under the circumstances of this case, we agree with Mendez that appellees’ counsel’s veiled reference to her immigration status was so prejudicial as to be incurable by an instruction to disregard. We reach this conclusion after considering the entire record, including appellees’ counsel’s comments at the bench conference following the challenged question, which strongly indicate that counsel believed, contrary to the trial court’s pre-trial ruling, that evidence of Mendez’s immigration status was relevant and admissible. Because appellees’ counsel’s question was incurably prejudicial, the trial court abused its discretion by denying Mendez’s motion for new trial. We sustain Mendez’s first issue on appeal.” Mendez v. Salinas, No. 13-17-00006-CV, 2018 Tex. App. LEXIS 4319, at *21-22 (App.—Corpus Christi June 14, 2018)

Here is a case where a party sufficiently preserved a complaint about the other side’s attorney testifying:

Oath: “Nor may Deborah rely on her attorney’s statements as evidence. While the requirement may be waived, “an attorney’s statements must be made under oath to be considered evidence.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). Here, Godswill objected to the attorney “testifying” and did not waive the requirement of an oath. Id.; Casino Magic Corp. v. King, 43 S.W.3d 14, 20 (Tex. App.—Dallas 2001, pet. denied) (attorney’s unsworn statement in garnishment action was not evidence).” Ugwa v. Ugwa, No. 05-17-00633-CV, 2018 Tex. App. LEXIS 4089, at *7 (Tex. App.—Dallas June 6, 2018)

Requesting and “approving” findings and conclusions does not waive one’s right to challenge those findings and conclusions:

Findings and Conclusions: “N.B.J. also argues that DPS is bound by the trial court’s findings of facts and conclusions of law, which “were approved by” DPS in the trial court. The fact that DPS approved and requested entry of the findings of fact and conclusions of law does not demonstrate that DPS consented to the trial court’s judgment or otherwise waived its right to challenge the findings and conclusions on appeal.Ex parte N.B.J., No. 14-17-00177-CV, 2018 Tex. App. LEXIS 3980, at *6 n.4 (Tex. App.—Houston [14th Dist.] June 5, 2018)

Your complaint must be sufficiently specific:

Sanctions: “In their third issue, the Parents and the Attorneys contend that the trial court failed to adequately specify the basis for sanctions awarded to the Judicial Defendants and Dobbs under Chapter 10 of the Texas Civil Practice and Remedies Code because “[s]imply tracking the language of the statute is insufficient.” The Parents and the Attorneys also contend that the trial court failed to specify the basis for sanctions awarded to the FBISD Defendants under both Chapter 10 and sections 11.161 and 22.055 of the Texas Education Code. . . .As an initial matter, the Judicial Defendants, Dobbs, and the FBISD Defendants argue that the Parents and the Attorneys have waived their specificity complaint because it was not raised in the trial court. See Tex. R. App. P. 33.1; . . . These appellees point out that although the Parents and the Attorneys filed a motion for new trial, or, in the alternative, a motion to modify the judgment, and a request for findings of fact and conclusions of law, they did not object to any lack of specificity in the orders granting sanctions. The Parents and the Attorneys suggest that no objection is required because the requirement for particularity in a sanctions order is mandatory. This court has previously rejected a similar argument based on Rule 13 in Alexander v. Alexander. See 956 S.W.2d 712, 714 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (holding appellant was required to object to a lack of particularity in the trial court even though courts have recognized that Rule 13’s directive that the court specify the basis for sanctions is mandatory). The Parents and the Attorneys also argue that their motion for new trial alerted the court to its failure to adequately describe the offending conduct, because they argued that the amount of the sanctions was excessive and made without reference to any guiding rules and principles, and listed the American Bar Association factors used to evaluate sanctionable conduct. Finally, the Parents and the Attorneys assert that their request for findings of fact and conclusions of law preserved any complaint regarding the trial court’s failure to satisfy section 10.005, because if the trial court had made findings (which it did not), the findings would be sufficient to satisfy the specificity requirements. The thrust of the motion for new trial was that the Parents and the Attorneys’ conduct did not warrant the sanctions imposed under any standard. In the motion, the Parents and the Attorneys demonstrated no difficulty identifying the sanctionable conduct alleged or the applicable legal standards. The request for findings and conclusions was perfunctory and referred only to the final judgment. Nothing in the Parents’ and the Attorneys’ motion for new trial or request for findings and conclusions was sufficiently specific to make the trial court aware that they were complaining that the sanctions orders failed to set out the particulars of the sanctionable conduct. Because the Parents and the Attorneys failed to raise their specificity complaint in the trial court, we conclude that they have failed to preserve this issue for review. See Tex. R. App. P. 33.1(a); . . . .In their fifth issue, the Parents contend that the trial court erred by failing to explain the reasons for sanctioning them. As explained in our discussion of issue three, the Parents failed to make the trial court aware of this complaint; therefore, it is not preserved for appeal. See Tex. R. App. P. 33.1(a). ” Roach v. Ingram, Nos. 14-16-00790-CV, 14-16-01016-CV, 2018 Tex. App. LEXIS 3982, at *45-50, 60-61 (App.—Houston [14th Dist.] June 5, 2018)

You have to comply with the pertinent rules to preserve error:

Continuance: “Here, the court entered an agreed scheduling order on May 18, 2017, which set the discovery deadline as November 4, 2017, thirty days before the December 4, 2017, trial date. Phillip filed his no-evidence motion for summary judgment May 19, 2017, one day after the entry of the agreed scheduling order. Maribeth’s response argued that the motion was premature because an adequate time for discovery had not yet elapsed. However, Maribeth’s objection to the motion was not preserved for our review because she failed to file an affidavit or verified motion for continuance.” Bryant v. May, No. 06-17-00115-CV, 2018 Tex. App. LEXIS 4019, at *10 (Tex. App.—Texarkana June 6, 2018)

Evidence: “Second, appellants’ issue also fails because we do not have a record of the arbitration proceedings, which means we cannot determine if any error is harmful. Appellants argue that they should be excused from producing the arbitration record because the trial judge said at the hearing that he would not take evidence or allow testimony. Having reviewed the reporter’s record, we are not convinced that appellants preserved error by actually offering the arbitration transcript into evidence. But even if appellants adequately offered the arbitration record into evidence and the trial court excluded it, appellants did not make an offer of proof. Accordingly, we cannot tell whether any error was harmful. See Sink v. Sink, 364 S.W.3d 340, 347 (Tex. App.—Dallas 2012, no pet.) (“[W]ithout an offer of proof, we can never determine whether exclusion of the evidence was harmful.”). Without a showing of harm, we cannot reverse. See TEX. R. APP. P. 44.1.” Prell v. Bowman, No. 05-17-00369-CV, 2018 Tex. App. LEXIS 3970, at *11-12 (Tex. App.—Dallas June 4, 2018).

There were the usual collection of cases in which parties failed to raise a complaint in the trial court, but I won’t burden you with those.

I hope this helps.

Take good care.

Yours, Steve Hayes

shayes@stevehayeslaw.com

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, June 2, 2018

June 2, 2018

Dear All:

My search engine hit a glitch this week, so I used FastCase (available through the State Bar) to find the cases here. You will have the case number from the court, but not a Lexis or Westlaw cite.  FastCase has some neat features–it’s public link, for instance, which allows you to provide any reader a link to the opinion, whether you subscribe or not.  I should have provide those links for the following cases, but did not think about doing so until too later.  However, here is an example.  You ought to check it out.

On to the cases.  Here is a case which, while not mentioning the words, held that the complaint at trial was sufficiently specific:

Legal Sufficiency: “OCTG asserts the trial evidence is legally and factually insufficient to support the jury’s findings in response to the damages question for OCTG’s breach of the Finishing Agreement and breach of express warranty. The jury found $1,562,127 in damages for OCTG’s breach of contract and $1,562,127 in damages for OCTG’s breach of warranty. OCTG and Sojourn argue that the evidence is legally and factually insufficient to support the jury’s findings as to reasonable and necessary expenses under the legal standard set forth in Dallas Railway and Terminal Co. v. Gossett and its progeny. 294 S.W.2d 377, 382-83 (Tex. 1956); see also McGinty v. Hennen, 372 S.W.3d 625, 627-28 (Tex. 2012). 1. Preservation Before discussing this legal standard, we first consider whether OCTG preserved these appellate complaints in the trial court. Laguna and LTP assert that OCTG did not preserve error. In their motion for judgment notwithstanding the verdict, OCTG and Sojourn asserted that the record contained no evidence to support the jury’s finding of $1,562,127 in damages resulting from the breach of the Finishing Agreement. OCTG and Sojourn did not assert a lack of evidence to support the jury’s finding of $1,562,127 in damages resulting from OCTG’s breach of warranty. But, in their motion for new trial, OCTG and Sojourn asserted legal insufficiency of the evidence to support the jury’s damages findings in response to both questions. The trial court denied the motion for new trial. Laguna and LTP appear to argue that OCTG was required to assert specifically that the evidence is legally insufficient as to the “reasonable and necessary” element of each question. We conclude that the complaints in the motion for new trial preserved error as to the legal-insufficiency arguments under OCTG’s sub-issue. See Arkoma Basin Expl. Co. v. FMF Assocs., 249 S.W.3d 380, 387-88 (Tex. 2008).” O.C.T.G. v. Laguna Tubular Prods. Corp., No. 14-16-00210-CV, (Tex. App., May 31, 2018)

But here is one where the complaint was not sufficiently specific :

Evidence: “At trial, Niranjan offered Exhibit 12 for admission into evidence, and identified the exhibit as consisting of emails between him and Smita. However, he admitted, only “part[s]” of the exhibit included emails between him and Smita, and requested that the trial court review the portion of the exhibit involving emails between the parties. Smita’s attorney objected as to hearsay, and the trial court sustained Smita’s objection. In his brief, Niranjan again states that the emails were “largely between the parties although there were sections wherein information was passed along to third parties.” We note that the majority of the 231 page exhibit appears to be emails between the parties. However, portions of the exhibit contain emails between Niranjan and the unidentified email addresses of at least seven other persons, some of whom appear to be former legal counsel. The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable. In re S.M., 207 S.W.3d 421, 424 (Tex. App.-Fort Worth 2006, pet. denied) (citing Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1035, 113 S. Ct. 1858, 123 L. Ed. 2d 479 (1993)). If evidence is offered and challenged, which contains some of each [admissible and inadmissible], the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection. Id. When evidence is both admissible and inadmissible, a party may not complain on appeal unless the admissible evidence was specifically offered. See Speier v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981). Here, it was not the trial court’s responsibility to sort through this voluminous record to determine which emails were admissible and which were inadmissible. See In re S.M., 207 S.W.3d at 424. Thus, Niranjan failed to preserve his complaint regarding the trial court’s exclusion of Exhibit 12. See Speier, 616 S.W.2d at 619.” Gadekar v. Zankar, No. 12-16-00209-CV (Tex. App.–Tyler, May 31, 2018)

Sometimes, issues can be tried by consent:

Substantial Performance: “Here, the Dieringers contend the theory of substantial performance was neither supported by Griffin’s pleadings nor tried by consent. We disagree. As previously stated, substantial performance is considered to be a condition precedent to the right to bring suit on a construction contract. Therefore, Griffin’s breach of contract pleadings supports its claim whether based upon substantial compliance or complete performance. Furthermore, when issues not raised by the pleadings are tried by consent (either express or implied) they are to be treated in all respects as if they had been raised in the pleadings. See TEX. R. CIV. P. 67. An issue is tried by consent if the presentation of evidence puts the parties on notice that recovery under the unpled theory is conceivable, and the other party fails to make an appropriate complaint. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). Here, a significant portion of the evidence presented centered around the nature and degree of Griffin’s alleged non-performance and the reasonable cost of remediating those deficiencies. Lyndall Hurst, Griffin’s President, testified in detail concerning the initial construction, approval, transportation, installation, repair, and final approval of the residence. In addition, both Brandon and Laura Dieringer testified to the long list of deficiencies identified and, with the assistance of their expert witnesses, to the reasonable cost of their remediation. Based on the amount of time spent and testimony received on those questions, we cannot say the trial court abused its discretion in finding that the theory of substantial performance was tried by consent.Charles Griffin Custom Ready-Built Homes, Inc. v. Dieringer (Tex. App.–Amarillo, May 29, 2018)

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

Evidence: “We turn next to Leonard’s complaint that Knight’s alleged failure to supplement his discovery responses with Junell’s billing records (among other things) rendered Junell’s fee affidavit inadmissible. Leonard included an objection to the admissibility of Junell’s affidavit in his summary judgment response, but he did not obtain an express ruling on that objection. On appeal, Leonard argues that he preserved this complaint because the trial court’s action in granting Knight’s motion for summary judgment implicitly overruled his objection to Junell’s affidavit. We disagree. See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d 596, 603-04 (Tex.App.—Houston [14th Dist.] 2012, no pet.) (stating that this Court has refused to recognize the granting of a summary judgment motion as an implied overruling of the nonmovant’s evidentiary objections). Obtaining an express ruling on an objection to summary judgment evidence is necessary to preserve error for appellate review. Id. Because Leonard did not obtain a ruling on his objection to Junell’s affidavit, he has not preserved any complaint he may have had for appellate review. We overrule Leonard’s second issue.” Leonard v. Knight, 4-16-00932-CV (Tex. App.–Houston [14th Dist.], May 31, 2018)

Sanctions: “By their seventh issue, the Eubanks contend that the trial court abused its discretion by not sanctioning the Bank for discovery abuse. The Eubanks moved for monetary sanctions, but never obtained a ruling or objected to the trial court’s failure to rule. The question of monetary sanctions is therefore not preserved for our review. See TEX. R. APP. P. 33.1(a)(2).” Mattar v. Bbva Compass Bank, No.13-16-00496-CV (Tex. App.–Corpus Christi-Edinburg, May 31, 2018)

You have to comply with other pertinent rules in asserting your complaint in the trial court:

Jury Charge: “In Nelson’s Issue Three, he asserts that Vernco should not be allowed to collect the $350,000 in damages attributable to his failure to file inefficiency claims because those were special/consequential damages27 that should have been, but were not, pleaded in Vernco’s live petition; Vernco only explicitly sought to recover “lost profits” resulting from Nelson’s breach. See TEX.R.CIV.P. 56 (“When items of special damage are claimed, they shall be specifically stated.”). Vernco counters that Nelson waived any challenges to pleading defects by failing to file special exceptions, and the issue of damages related to inefficiency claims was tried by consent. We agree with Vernco. “Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury . . . shall be deemed to have been waived by the party seeking reversal on such account[.]” [Emphasis added]. TEX.R.CIV.P. 90. While Nelson verbally objected to the inclusion of the instruction at the jury charge conference, Nelson directs us to nothing in the record that would show he ever filed an objection in writing as required by Rule 90. Thus, any objection to Vernco’s failure to bring up the specific issue in a pleading has been waived.” Nelson v. Vernco Constr., Inc., No. 08-10-00222-CV (Tex. App.–El Paso, 2018)

Pleading: “To the extent that Gabriel’s cross-appeal issue is intended as a challenge to Blaauw’s capacity, it fails for lack of a verified pleading. Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 93(1); Nootsie, Ltd., 925 S.W.2d at 662 (holding Nootsie waived any complaint about appraisal district’s legal capacity because it failed to raise the issue through a verified pleading in the trial court).” Alarcon v. Velazquez, No. 14-16-00481-CV (Tex. App.–Houston [14th], May 31, 2018)

Pleading: “ OCTG and Sojourn assert this court must set aside the damages found by the jury in response to damage questions for Laguna’s breach-of-contract and breach-of-warranty claims because, in the Finishing Agreement, the parties agreed that OCTG would not be liable for damages resulting from its breach of the Finishing Agreement. Instead, OCTG’s sole obligation would “be to furnish substitute equivalent Services on substitute goods or, at [OCTG’s] election, to repay or credit [Laguna] an amount equal to the price of the Services.” Texas Rule of Civil Procedure 94 requires an affirmative pleading of certain specified defenses and of “any other matter constituting avoidance or affirmative defense.” Tex. R. Civ. P. 94. A contractual limitation-of-liability provision constitutes an avoidance or affirmative defense that a party must plead affirmatively. See id.; see also Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 671 (Tex. App.–Houston [14th Dist.] 1994, writ denied). A party waives an avoidance or affirmative defense if the party fails to plead it and the issue is not tried by consent. See Tacon Mech. Contractors, 889 S.W.2d at 671. OCTG neither pleaded that its liability was limited under the Finishing Agreement, nor was the limitation-of-liability issue tried by consent. Thus, OCTG has waived this issue. See id.” O.C.T.G. v. Laguna Tubular Prods. Corp., No. 14-16-00210-CV, (Tex. App., May 31, 2018)

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

Jury Charge: “On appeal, the Eubanks also complain of the trial court’s refusal to submit a spoliation instruction concerning the Bank’s purported failure to produce other documents. However, this complaint does not conform with the Eubanks’ argument at the charge conference, and it is therefore not preserved for our review. See TEX. R. APP. P. 33.1(a); see, e.g., Lowry v. Tarbox, 537 S.W.3d 599, 617 (Tex. App.—San Antonio 2017, pet. denied) (“On appeal, appellants present an entirely different argument [concerning the proposed jury] question . . . .”).” Mattar v. Bbva Compass Bank, No.13-16-00496-CV (Tex. App.–Corpus Christi-Edinburg, May 31, 2018)

There were a raft of decisions which held that a complaint was not preserved because it was not raised in the trial court, but I won’t set those out here.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com

 

Error Preservation in Texas Civil Cases, May 26, 2018

Dear All:

Had some spare time, so thought I would update with this week’s stuff.

The Supreme Court weighed in on error preservation as to a Casteel complaint, but really said nothing new, that I could tell:

Jury Charge: “Whether Dr. Benge has an evidentiary complaint or not, the complaint he makes is that the charge allowed the jury to consider what he did or did not tell Williams about Dr. Giacobbe’s involvement in the surgery in deciding negligence, even though Williams does not seek recovery on that basis. He objected to the charge and requested a limiting instruction. In Morrison, we held that an objection to the charge even without a requested question or instruction preserved the complaint that the evidence would allow the jury to find liability in answer to a single broad-form question, on a theory on which the plaintiff could not recover. Dr. Benge’s objection and requested instruction went as far as that case requires.” Benge v. Williams, No. 14-1057, 2018 Tex. LEXIS 441, at *24 (May 25, 2018)

You can raise some complaints for the first time on appeal–for example, lack of legally and factually sufficient evidence in a bench trial:

Legal Sufficiency: “Husband also argues that Wife failed to preserve her complaints about characterization of these items. But in a nonjury case, a party may complain about legal and factual sufficiency of the evidence for the first time on appeal. Tex. R. App. P. 33.1(d). Wife’s issues are based on both legal and factual sufficiency of the evidence to support the trial court’s characterization and division of property. Consequently, we will address the merits of Wife’s arguments.” In the Interest of D.V.D., No. 05-17-00268-CV, 2018 Tex. App. LEXIS 3657, at *11 (App.—Dallas May 22, 2018)

When you object to an expert’s testimony as unreliable before trial, and receive a ruling on your objection, you have preserved your complaint for appeal:

Expert: “The record reflects appellant filed a pretrial motion to exclude Stewart’s expert testimony. See Tex. R. Evid. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-95, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). That motion was presented to the trial court and a hearing was held, after which the trial court overruled the motion. None of appellant’s issues claim the trial court abused its discretion in overruling her motion but the entirety of her argument leads us to construe it to be one of admission of expert testimony rather than erroneous evidentiary rulings. See Tex. R. Evid. 702.  To preserve a complaint that expert opinion evidence is inadmissible because it is unreliable, a party must object to the evidence before trial [*12] or when the evidence is offered. Kerr—McGee Corp. v. Helton, 133 S.W.3d 245, 251-52 (Tex. 2004) (abrogated on other grounds by Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Accordingly, appellant’s complaint was preserved.” In re Mugford, No. 14-16-00436-CV, 2018 Tex. App. LEXIS 3586, at *11-12 (App.—Houston [14th Dist.] May 22, 2018)

Sometimes, the trial court’s ruling can be implied:

Legal Sufficiency: “Mandy asserts in her first issue that the evidence is legally insufficient to support the jury’s “yes” answer in response to Question No. 9 because the record does not show that she employed Shadow Creek to perpetrate an actual fraud primarily for her direct personal benefit. See id. § 21.223(b). Mandy preserved this contention at the charge conference and post-verdict. n. 4 n. 4 This contention was raised in Shadow Creek’s and Mandy’s response and objections to Havey’s motion for entry of judgment, which asserted that “[i]t would be improper to enter[] judgment on [Question No.] 9, and a take nothing [judgment] should be issued as to Mandy Hong.” The trial court did not explicitly rule on Havey’s motion for entry of judgment or on Shadow Creek’s and Mandy’s objections. Instead, the trial court signed a final judgment assessing liability against Mandy based on the jury’s responses to Questions No. 1, 3, and 9. In doing so, the trial court implicitly overruled Shadow Creek’s and Mandy’s objections to Havey’s motion for entry of judgment. See Tex. R. App. P. 33.1(a)(2)(A) (providing that error is preserved when the trial court ruled on the motion either expressly or implicitly);” Hong v. Havey, No. 14-16-00949-CV, 2018 Tex. App. LEXIS 3705, at *17 n.4 (App.—Houston [14th Dist.] May 24, 2018)

Jury Finding:”Mandy asserts in her second issue that the jury’s common law fraud and conspiracy findings in Questions No. 1 and 3 are immaterial because the claims are statutorily barred by sections 21.223 and 21.224 as “common law claims to establish contract liability under a corporate obligation.” See Tex. Bus. Orgs. Code Ann. §§ 21.223, 21.224. Mandy preserved this argument by asserting it at the charge conference and post-verdict. n. 5 n. 5 This contention was raised in Shadow Creek’s and Mandy’s response and objections to Havey’s motion for entry of judgment, which asserted that the jury findings in response to Questions No. 1 and 3 are immaterial. The trial court did not explicitly rule on Havey’s motion for entry of judgment or on Shadow Creek’s and Mandy’s objections. Instead, the trial court signed a final judgment assessing liability against Mandy based on the jury’s responses to Questions No. 1, 3, and 9. In doing so, the trial court implicitly overruled Shadow Creek’s and Mandy’s objections to Havey’s motion for entry of judgment. See Tex. R. App. P. 33.1(a)(2)(A) (providing that error is preserved when the trial court ruled on the motion either expressly or implicitly).” Hong v. Havey, No. 14-16-00949-CV, 2018 Tex. App. LEXIS 3705, at *28 n.5 (App.—Houston [14th Dist.] May 24, 2018)

Still, it is far better to get an express ruling on your complaint, because then you know you have the ruling you need to preserve your complaint:

Discovery: “In his third issue, Morgan asserts that the trial court abused its discretion by denying his request for discovery. There is no indication in the record that Morgan served Varghese with discovery requests. After Varghese moved to dismiss Morgan’s claims, Morgan filed a “Motion to Show Cause for Action,” in which he prayed for “full disclosure” pursuant to civil-procedure rules 194.1 and 194.2 and “production & inspection” under rule 196.1. Tex. R. Civ. P. 194.1, 194.2, 196.1. . . .We construe this issue as a complaint that the trial court denied Morgan’s “Motion to Show Cause for Action.” But because the trial court did not rule on this motion and there is no indication in the record that the court refused to do so, Morgan has failed to preserve this complaint for our review. See Tex. R. App. P. 33.1(a)(2). Moreover, under section 14.003(d), the trial court was required to “suspend discovery relating to the claim pending the hearing.” Tex. Civ. Prac. & Rem. Code Ann. § 14.003(d); Albert v. Aldelstein, No. 02-13-00073-CV, 2013 Tex. App. LEXIS 9909, 2013 WL 4017511, at *4 (Tex. App.—Fort Worth Aug. 8, 2013, no pet.) (mem. op.) (“Under chapter 14 . . . ‘the trial court shall suspend discovery’ pending a determination of frivolousness.” (quoting Tex. Civ. Prac. & Rem. Code Ann. § 14.003(d))). We therefore overrule Morgan’s third issue.” Morgan v. Varghese, No. 02-17-00079-CV, 2018 Tex. App. LEXIS 3739, at *7-8 (App.—Fort Worth May 24, 2018)

I won’t bore you with the cases where parties failed to raise their complaints at all in the trial court.

Hope this helps.  Y’all have a good weekend, and week.

Yours,

Steve Hayes

www.stevehayeslaw.com

Error Preservation in Texas Civil Cases, May 19, 2018

Here is another court which struggles when trying to determine whether something is an issue–which must be raised in the trial court–as opposed to an additional argument which supports an issue.  The Court concluded that it was dealing with an additional argument, as opposed to a newly raised issue:

Limitations: “In oral argument and a post-submission letter brief, AK responds that ART’s issue in the trial court and in its original appellate brief was limited to ART’s second argument whether Hughes should be extended or expanded to include transactional malpractice. Accordingly, AK argues ART’s first argument has been waived. The issue of the applicability of the Hughes tolling doctrine was presented to the trial court in ART’s response to AK’s summary judgment in general statements that encompass both its arguments as well as in specific statements articulating ART’s second argument. See Adams v. Starside Custom Builders, LLC, No. 16-0786, 2018 Tex. LEXIS 327, 2018 WL 1883075, at *5 n.2 (Tex. Apr. 20, 2018) (general argument that mentioned other terms in a statute not specifically argued to trial court preserved issue for appeal). On appeal, ART’s original brief primarily urged its second argument to extend the Hughes rule to include their claims. But ART made broad statements such as this summary of its appellate position regarding Hughes:

[ART] asserted below and assert here that the equitable tolling doctrine set forth in Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156-57 (Tex. 1991), applies to their claims in this case. If it does, then even the later-filed but more specific Second Amended Original Petition is timely to assert [ART’s] claims against AK relating to its advice in terminating the Clapper Transaction.

The Texas Supreme Court has held some claims such as Plaintiffs are covered by Hughes. Indeed, Hughes itself involved legal malpractice unrelated to a pending lawsuit. Some federal district courts have also applied Hughes to claims like those alleged here.

(Appellants’ Brief at 19). In its formal argument, ART contended,

Plaintiffs asserted, both in their Second Amended Petition . . . and in their response to AK’s Second Motion for Summary Judgment on Limitations . . . , that Hughes applied to toll limitations as to its claims arising from AK’s March 1999 advice and work concerning the termination of the Clapper Transaction. As a result, Plaintiffs [sic] Second Amended Petition, which alleged [*12] those claims with more specificity, was not barred by limitations.

(Id. at 32-33) (citations to record and appendix omitted). AK does not dispute that ART clearly asserted its first argument in its reply brief that the Hughes rule applies as it currently exists, without the need for extension. We cannot consider issues raised for the first time in a reply brief. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per curiam). But the distinction between issues and arguments is not always clear. See Adams, 2018 Tex. LEXIS 327, 2018 WL 1883075, at *5 (“[Appellant] was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.”) (citing Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”)). Because both of ART’s arguments contend Hughes applies or should apply to ART’s claims, we address them both.” Am. Realty Tr., Inc. v. Kurth, No. 05-16-01433-CV, 2018 Tex. App. LEXIS 3226, at *11-12 n.6 (App.—Dallas May 8, 2018)

Concerning a fact issued tried to the bench, one may raise a legal sufficiency challenge for the first time on appeal.

Attorney’s Fees/Legal Sufficiency: “The Dinkinses did not object to the attorney’s-fees award in the trial court.  Generally, to preserve a complaint for appellate review, a party must have presented its complaint to the trial court by timely request, objection, or motion with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). “Complaints regarding alleged error in awarding attorney’s fees are subject to this rule.” Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.-Houston [14th Dist.] 2015, no pet.). We interpret the Dinkinses’ contention that there was no legal basis for the attorney’s-fees award to mean that it lacked any statutory or contractual basis. Because the Dinkinses never objected to the attorney’s-fees award in the trial court, they did not preserve error as to this [*21] complaint. See id. But because the trial court determined the amount of attorney’s fees, the Dinkinses may still challenge the sufficiency of the evidence supporting the attorney’s-fees award because such a challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d); Gipson-Jelks, 468 S.W.3d at 604-05; see also Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, 2017 WL 4053943, at *3 (Tex. App.-Fort Worth Sept. 14, 2017, no pet.) (mem. op.).” Dinkins v. Calhoun, No. 02-17-00081-CV, 2018 Tex. App. LEXIS 3519, at *20-21 (App.-Fort Worth May 17, 2018)

When you timely raise your complaints on multiple occasions in the trial court, you will have preserved it:

Experts: “Hood argues DuPont failed to preserve some of its challenges to the input data by not objecting to the trial court. DuPont responds an objection was not required to preserve these issues. A review of the record, including DuPont’s pretrial motions to strike Stewart’s expert testimony, a hearing on the motion to strike, and its post-judgment motions challenging the sufficiency of the evidence on causation, reveals that DuPont challenged the reliability of the inputted data for (1) respirator use; (2) the amount of benzene in DuPont’s products; (3) benzene exposure when Hood was not painting; and (4) size of the vehicles being painted. Thus, we consider whether Stewart’s lifetime benzene exposure dose was unreliable based on the specific [*16] data inputted in ART for these categories.” E.I. du Pont de Nemours & Co. v. Hood, No. 05-16-00609-CV, 2018 Tex. App. LEXIS 3228, at *15-16 (App.—Dallas May 8, 2018)

Your complaint must be timely:

Disqualification: “We should “consider the length of time between the moment the conflict became apparent to the aggrieved party to the time the motion for disqualification is filed in determining whether the complaint was waived.” Wasserman v. Black, 910 S.W.2d 564, 568 (Tex. App.—Waco 1995, orig. proceeding). At the hearing on their motion for disqualification, Los Robles and Nors did not respond to Deadman’s waiver objection by attempting to explain their delay. In their response to the petition for writ of mandamus, Los Robles and Nors do not state when they first learned of a conflict, nor do they offer any explanation for why they waited until November 2017 to file their motion. Almost six months elapsed between the filing of the June 2017 Eighth Amended Petition and the November 2017 motion for disqualification, and Los Robles and Nors do not allege this petition was insufficient to put them on notice of the alleged conflict. EPIC Holdings, 985 S.W.2d at 52 (moving party satisfactorily explained delay). . . . Based on the unexplained delay in filing their motion for disqualification, we must conclude Los Robles and Nors waived their right to seek disqualification of Deadman as relators’ attorney.” In re Schmidt, No. 04-18-00077-CV, 2018 Tex. App. LEXIS 3241, at *10 (App.—San Antonio May 9, 2018)

Evidence: “In her brief, Mary relies on her motion for new trial to establish error. Mary attached some of her discovery responses to the motion to establish that Adam was on notice that the she intended to introduce evidence of her increased costs at trial. “While a motion for a new trial may preserve some errors, standing alone, it cannot preserve error related to the admission or exclusion of evidence.” Mandeville v. Mandeville, No. 01-15-00119-CV, 2015 Tex. App. LEXIS 12033, 2015 WL 7455436, at *5 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet.) (mem. op.) (citing Tex. R. Evid. 103; Tex. R. App. P. 33.1). It is not presented during trial, as required for [*5] an offer of proof. See Tex. R. Evid. 103(c) (requiring offer of proof to be presented at trial). And it does not satisfy the requirements of a formal bill of exception. See Tex. R. App. P. 33.2(c) (establishing procedure for filing bill of exception). Moreover, the discovery responses attached to Mary’s motion for new trial do not reasonably summarize the evidence of Mary’s increased costs in comparison to her net resources. In her response to interrogatories, Mary summarized her current monthly expenses. She did not, however, identify which of those expenses had increased or by what amount. Mary’s complaints about the trial court’s exclusion of her evidence concerning her increased costs have not been preserved for appeal. We overrule Mary’s first, second, and third issues.” Jacob v. Jacob, No. 01-16-00835-CV, 2018 Tex. App. LEXIS 3276, at *4-5 (App.—Houston [1st Dist.] May 10, 2018)

Improper Jury Argument: “The trial court ordered a new trial because Oiltanking made what the trial court deemed was an improper and prejudicial jury argument. In closing argument, Oiltanking argued, in part, that the evidence showed Stelly had a deteriorating orthopedic condition before and after the accident. Without objection, Oiltanking argued Stelly’s disregard of a doctor’s light duty restriction six weeks before the accident was “an accident waiting to happen[,]” that “instead of going on light duty, he fell[,]” and further argued that Stelly “shouldn’t have even been out there.”. . . .Generally, a complaint about an improper jury argument must be preserved by making an objection [*14] at the time the argument occurs, obtaining a ruling on the objection, and requesting an instruction that the jury disregard the improper remark. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). However, a complaint of incurable jury argument may be asserted and preserved in a motion for new trial. Tex. R. Civ. P. 324(b)(5). Because an instruction to disregard will typically cure any probable harm arising from an improper jury argument, to be incurable the argument must be 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.” Goforth v. Alvey, 271 S.W.2d 404, 153 Tex. 449, 450-51 (Tex. 1954). “[I]ncurable argument is that which strikes at the very core of the judicial process.” Phillips, 288 S.W.3d at 883. When appropriate, a new trial may be ordered because “arguments that strike at the courts’ impartiality, equality, and fairness inflict damage beyond the parties and the individual case under consideration . . . [and] damage the judicial system itself by impairing the confidence which our citizens have in the system[.]” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008). Examples of incurable arguments include appeals to racial prejudice, extreme unsupported personal attacks on parties or witnesses, and unfounded accusations of manipulating a witness. Id. Oiltanking’s [*15] argument that Stelly was at fault for violating his doctor’s medical restrictions on the date of the accident neither appealed to racial or ethnic bias, nor perpetrated an extreme personal attack on Stelly or an unsupported inflammatory allegation of illegal or immoral conduct by Stelly or his counsel. Because the argument was not incurable, the trial court clearly abused its discretion by granting a new trial.In re Enter. Refined Prods. Co., LLC, No. 09-18-00069-CV, 2018 Tex. App. LEXIS 3503, at *13-15 (App.—Beaumont May 17, 2018)

You have to comply with other pertinent rules:

Evidence: “Castanon supports her argument [that the trial court erred in determining it did not have jurisdiction to protect her infant son against the child’s father] by citing an excerpt of the reporter’s record from the hearing on the protective order in which the trial court “declined” to consider evidence pertaining [*3] to the inclusion of the parties’ infant son on the protective order due to its determination that the question of whether the infant should be protected from his father should be considered by a court in the context of a SAPCR. That excerpt reads: . . . ‘Counsel: We are also going to be able to put on evidence to show that he tried to take the baby while she was in the hospital. I can —Court: I’m not going to do anything with the infant if he doesn’t pose any type of physical danger to the infant. You’re not alleging that, are you? Counsel: When he did try to take the child from the hospital, yes. Court: I’m not going to do that. That’s for a SAPCR. It’s not for a protective order. I don’t know how many times I have to say that. That’s my position. Counsel: We’re just also concerned about his gang affiliations, his family connections — Court: I’m not going to enter any order with regard to their infant. His infant. All right .’ Besides this exchange and a couple of brief narrations later in the hearing in [*4] which the trial court, unprompted, reiterates its decision on the matter without further explication or objection, there is nothing else in the record excerpt or any proceedings preceding it reflecting the trial court’s determination on the issue of whether the infant may be included in the protective order. On this limited record, we cannot conclude that the district court erred or abused its discretion in declining to include the infant in the protective order, even assuming it had jurisdiction to make that determination. And to the extent this exchange could be viewed as indicating Castanon’s desire to present evidence about the issue of appellee’s alleged danger to the infant, Castanon has not preserved error as to any exclusion of evidence, nor has she raised exclusion of evidence as an issue on appeal. See Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2) (offer of proof).” Castanon v. Gomez-Valles, No. 03-17-00751-CV, 2018 Tex. App. LEXIS 3366, at *2-4 (App.—Austin May 15, 2018)

You have to get a ruling from the trial court on your complaint–but there are times when that ruling can be implicit:

Plea to the Jurisdiction: “Appellee argues that on June 15, 2015, the trial court granted the MDCs’ Motion and Plea to Jurisdiction as to all claims under the Texas Tort Claims Act and as to all claims for damages, [*17] but otherwise denied the rest of the plea and motion. By virtue of that order, the Appellee argues that Smedley retained injunctive claims against the MDCs through “the Takings Clause and Section 11.086 of the Water Code[,]” and he states the trial court later also denied in all respects the motion for summary judgment filed by the MDCs. . . . section 51.014(a)(8) of the Texas Civil Practices and Remedies Code, to which the Appellants cite as the basis for this interlocutory appeal. This subsection allows an appeal from an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001[.]” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). . . . In order for a party to be entitled to an interlocutory appeal, section 51.014(a)(8) requires a grant or denial of a jurisdictional challenge. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Even in the absence of an explicit denial of a jurisdictional challenge, however, if a trial court rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack, it has implicitly denied the jurisdictional challenge. Thomas, 207 S.W.3d at 339-40. This implicit denial satisfies section 51.014(a)(8) and gives the court of appeals jurisdiction to consider an otherwise impermissible interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R. App. P. 33.1(a)(2)(A); Thomas, 207 S.W.3d at 340.” City of Magnolia v. Smedley, No. 09-15-00334-CV, 2018 Tex. App. LEXIS 3488, at *16-19 (App.—Beaumont May 17, 2018)

Modification: “In bringing forth its first issue for review, the Landlord asserts that Xerox did not prove the TPA amended the Lease as a matter of law. The trial court, however, issued no such ruling. On review of the record, we agree that Xerox sought and the trial court granted partial judgment on the narrow basis of the TPA as a separate contract. See City of San Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.—San Antonio 2001, no pet.) (recognizing that an appellate court may accept admissions made in the briefs as true). Because the trial court was not asked to do so, the trial court made no ruling on the alternative theory—whether the TPA amended the lease as a matter of law. Given the circumstances, we conclude we are not authorized to review Issue One’s broad argument, and three of its four sub-arguments, as these arguments assert Xerox failed to prove an alternative [*20] theory abandoned and not ruled on below. Tex.R.App.P. 33.1(a)(1) and (2) (as a prerequisite of appellate review, the record must show the trial court made a ruling). An appellate court is not authorized to reverse a trial court’s judgment in the absence of properly assigned error.” 1320/1390 Don Haskins, Ltd. v. Xerox Commer. Sols., LLC, No. 08-16-00027-CV, 2018 Tex. App. LEXIS 3268, at *19-20 (App.—El Paso May 9, 2018)

As always, many opinions held that a party failed to preserve error by failing to raise its complaint at all in the trial court.  I won’t burden you with those.

Hope that helps.  See you next time.

Yours,

Steve Hayes (817/371-8759;  www.stevehayeslaw.com)

Error Preservation in Texas Civil Cases, May 8, 2018

May 8, 2018

Dear All:

Here is an interesting error preservation case involving the vexatious litigation code section of the Civil Practices and Remedies Code:

Vexatious Litigation: “Jones first argues that Anderson waived the opportunity to file a vexatious litigant motion because he filed the motion “more than two years after he was originally served with the other Defendants in 2014.” HN4 The time for filing a motion to have a person declared a vexatious litigant is prescribed by statute, and the proper construction of a statute is a question of law, which we review de novo. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Texas Civil Practice and Remedies Code section 11.051 states that “the defendant may, on or before the 90th day after the date the defendant files the original answer or makes a special appearance, move the court for an order: (1) determining that the plaintiff is a vexatious litigant; and (2) requiring the plaintiff to furnish security.” Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (West 2017). The record before us does not show that Anderson ever filed an answer or special appearance. His motion to have Jones declared a vexatious litigant appears to be the first document Anderson filed in this case. Indeed, Jones stated at the hearing on the motion that Anderson filed the vexatious-litigant motion “instead of filing an answer.” [*15] Jones cites no authority in support of her position that Anderson waited too long to file his motion. Although she points out that the Markel defendants filed a vexatious-litigant motion two years before Anderson did, the statute does not require a defendant to join a vexatious-litigant motion filed by another defendant. Because Anderson did not file his motion ninety or more days after filing an answer or a special appearance, we conclude that he did not waive the opportunity to move for a declaration that Jones is a vexatious litigant, and that his motion instead was timely filed.Jones v. Anderson, No. 14-16-00727-CV, 2018 Tex. App. LEXIS 3044, at *14-15 (App.—Houston [14th Dist.] May 1, 2018)

Your complaint in the trial court must be sufficiently specific to make the trial court aware of your complaint, and must comport with the complaint you make on appeal:

Insurance: In its second appellate issue, Texas Farmers contends . . . it is still entitled to a reversal of the judgment because the portion of the judgment awarding Clack 18% interest pursuant to section 542.060(a) of the Insurance Code is improper. Texas Farmers argues the award is improper because: (1) it is not supported by Clack’s pleadings; and (2) an 18% post judgment interest award as exemplary damages is permitted only on the amount of the underlying insurance claim, not treble damages, attorney’s fees, prejudgment interest, or court costs. In addition, at the conclusion of the argument relating to section 542.060(a), Texas Farmers asserts in a single sentence that, “The claim for exemplary damages is barred because exemplary damages are not permitted under the DTPA or Chapter 541 of the Texas Insurance Code [*9] .” It then states the award under section 542.060(a) was improper because “it compounded the 18% interest annually.” However, we find we need not reach any of these issues because they have not been preserved for our review. . . . Here, in its motion for new trial, Texas Farmers’ complaint regarding any award of exemplary damages is found in the section on meritorious defenses and states, in its entirety: “Even if [Clack’s] claims for exemplary damages are not barred for other reasons, which they are, [Texas Farmers] would show that [Clack] cannot recover said damages under the standards set forth in Chapter 41 of the Tex. Civ. Prac. & Rem. Code and based on protections afforded by the United States Constitution and the Texas Constitution, Defendant further asserts the limits and caps on punitive and exemplary damages as set forth in Chapter 41 of the Tex. Civ. Prac. & Rem. Code [*10] , including but not limited to the limits and caps set forth in Section 41.008 of the Tex. Civ. Prac. & Rem. Code.” There is no reference to exemplary damages as post judgment interest under section 542.060(a) of the Insurance Code or compounding of such interest, and there is no challenge to the award of exemplary damages under the DTPA or Chapter 541 of the Insurance Code. Rather, the only reference is to exemplary damages under Chapter 41 of the Texas Civil Practice and Remedies Code and the federal and state constitutions. The complaint raised by Texas Farmers in the trial court was not sufficiently specific to advise the trial court that Texas Farmers was challenging the portion of the judgment awarding 18% interest under section 542.060(a) of the Insurance Code or the award of exemplary damages under the DTPA or Chapter 541 of the Insurance Code, nor are such complaints apparent from the context. See Tex. R. App. P. 33.1(a)(1). Additionally, the complaints set out in the motion for new trial regarding exemplary damages do not comport with any of the complaints raised in this appeal. . . . Accordingly, Texas Farmers has failed to preserve any of the complaints set forth in its second issue for our review.” Tex. Farmers Ins. Co. v. Clack, No. 04-17-00348-CV, 2018 Tex. App. LEXIS 3068, at *8 (App.-San Antonio May 2, 2018)

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

Declaratory Relief: “Even if all of Promotions’s declaratory claims were dismissed, or had never been asserted, appellants would still face claims and causes of action asserted by Promotions that would subsume the subjects of the requested declarations, yet seek greater relief—the coercive remedies of damages and injunctive relief—that implicate the same “exercise of the right of association” on which appellants’ TCPA motion is predicated. Further, appellants waived any TCPA challenge to these broader claims by failing to raise it through a timely motion. With those broader claims and causes of [*26] action remaining in the case regardless, determination of appellants’ entitlement to TCPA relief against the declaratory claims, claims concerning mere component or subsidiary issues subsumed within the broader claims and causes of action that cannot now be attacked under the TCPA, would resolve a mere legal abstraction having no impact on any interests protected by that statute—the hallmark of unconstitutional advisory opinion—or alternatively would have been rendered moot in the inception by the limited scope of appellants’ motion.” Craig v. Tejas Promotions, LLC, No. 03-16-00611-CV, 2018 Tex. App. LEXIS 3126, at *25-26 (App.—Austin May 3, 2018)

Interception of communications: “In issue five, M.F. contends the trial court abused its discretion “in determining that [J.F.] did not unlawfully intercept [M.F.]’s electronic communications. . . .Although M.F. argued in her brief in support of her amended motion that J.F. illegally intercepted M.F.’s electronic communications, the motion itself sought to disqualify J.F.’s attorney and made no allegations against J.F. M.F. has failed to demonstrate on appeal that she preserved error with respect to her allegations against J.F., and she has failed to show that the trial court made a ruling regarding her purported allegations specifically against J.F. The trial court’s ruling on the motion to disqualify opposing [*24] counsel dealt solely with J.F.’s counsel and did not address M.F.’s allegation that J.F. individually violated the law by intercepting M.F.’s text or email communications. See Tex. R. App. P. 33.1. We overrule issue five.” In the Interest of R.F., No. 09-16-00240-CV, 2018 Tex. App. LEXIS 3130, at *23-24 (App.-Beaumont May 3, 2018)

You have to comply with the pertinent rules:

Evidence: “Knoblauch did not actually offer anything into evidence at this point, not the packet in its entirety or any of the individual documents. He also did not establish any predicate for their admission. The exchange regarding the bench brief occurred at the beginning of the third [*10] day of trial testimony, but it was not until days later that Knoblauch offered any of the packet documents into evidence. At that time, Knoblauch offered the letter and then the attached affidavit as separate exhibits, and the trial court admitted both. As the trial court found in its findings of fact, however, at no point did Knoblauch offer into evidence the packet in its entirety or the proposed order itself or obtain a ruling excluding these items from evidence. Accordingly, Knoblauch did not preserve error regarding admission of these documents during trial.In the Interest of J.C.K., No. 14-17-00082-CV, 2018 Tex. App. LEXIS 3039, at *9 (App.-Houston [14th Dist.] May 1, 2018)

There were several cases in which courts held that parties did not preserve error because they did not raise the complaint in the trial court, but I won’t burden you with those here.

I hope this helps. Y’all take care.

Yours,

Steve Hayes

www.stevehayeslaw.com