June 29, 2020
Dear All:
There is some indication that most courts of appeals seem to have figured out a way to get their opinions picked up by the various online reporters, so we have some error preservation decisions to examine this week–including one or two from the Texas Supreme Court.
Table of Contents
- Very seldom does the Supreme Court address error preservation, and even more seldom than that does it explicitly address the “sufficient specificity” requirement of TRAP 33.1. But it did so this week in Bonsmara v. Hart, and the Houston First Court also decided an error preservation fight based on specificity (at least, impliedly)
Arbitration
Personal Jurisdiction
- Bonsmara also held that a party preserves its complaint that a trial court should have ordered arbitration by getting a ruling on a motion to compel arbitration–and that failing to take an interlocutory appeal from that order does not waive its demand for arbitration–a position as to which Justice Green dissented
- The Supreme Court also held that a Father did no waive the presumption that a parent will act in the best interest of the child
- Mootness is a complaint which can first be raised on appeal–and in fact a court of appeals can raise it sua sponte
- Remember, you have to comply with the pertinent rules to preserve your complaint–for example, the failure to file a verified denial fails to preserve a complaint that a party lacks capacity (and filing a denial verified “to the best of my knowledge” does not qualify as a verified denial)
- The Dallas Court held that the statutory mandate of a court reporter in a contested probate proceeding means a party can first complain on appeal as to the lack of a court reporter in that situation
- Remember–the “newly discovered evidence” complaint that you have to raise in a Rule 324 motion for new trial does not allow you to complain about evidence you knew about during trial
- You have to get a ruling on your complaint
Summary Judgment (Amended Pleading)
The Blurbs
Very seldom does the Supreme Court address error preservation, and even more seldom than that does it explicitly address the “sufficient specificity” requirement of TRAP 33.1. But it did so this week in Bonsmara v. Hart, and the Houston First Court also decided an error preservation fight based on specificity (at least, impliedly):
Arbitration: “Bonsmara also argues Hayes, Landrum, and Pickett waived direct-benefits estoppel by failing to raise the doctrine below. We disagree. Before the trial court and court of appeals, the Hart defendants argued arbitration was appropriate because the claims asserted by Bonsmara arose out of the agreement and Bonsmara should not avoid arbitration after receiving the agreement’s economic benefits. This statement was “sufficiently specific[] to make the trial court aware of the complaint.” Tex. R. App. P. 33.1(a)(1)(A).” Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, No. 19-0263, 2020 Tex. LEXIS 617, at *31 n.26 (June 26, 2020)
Personal Jurisdiction: “Ratliff asserts that Baywater waived its jurisdictional challenge to his unseaworthiness claim because Baywater did not specifically mention that claim in its special-appearance filings. We disagree. In its special appearance, Baywater asserted that it is not subject to specific jurisdiction for Ratliff’s “claims.” Baywater indicated that Ratliff asserted claims under general maritime law, which, here, include an unseaworthiness claim. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018) (recognizing that “[r]ules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case”).” Baywater Drilling, LLC v. Ratliff, No. 01-19-00706-CV, 2020 Tex. App. LEXIS 4624, at *13 n.5 (Tex. App.—Houston [1st Dist.] June 23, 2020)
Bonsmara also held that a party preserves its complaint that a trial court should have ordered arbitration by getting a ruling on a motion to compel arbitration–and that failing to take an interlocutory appeal from that order does not waive its demand for arbitration–a position as to which Justice Green dissented:
Arbitration: “From that point forward, the party must adhere to the trial court’s order—as it must all interlocutory orders—whether it agrees with the order or not. Having obtained an adverse ruling, the party’s complaint is preserved for appellate review. Tex. R. App. P. 33.1; see also, e.g., Lucas, 2019 WL 2635561, at *2-10 (holding personal-jurisdiction challenge could be raised after final judgment where party obtained adverse ruling on special-appearance motion); GJP, Inc., 251 S.W.3d at 865-83 (same). It is surely not the case that measures such as disobedience to the order, repetitious motions to reconsider, or abstention from putting on a case are necessary to avoid waiver. If simply adhering to an adverse order while continuing to litigate waived review of that order on appeal from a final judgment, there would be few orders left to review.” Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, No. 19-0263, 2020 Tex. LEXIS 617, at *21 n.22 (June 26, 2020)
The Supreme Court also held that a Father did no waive the presumption that a parent will act in the best interest of the child:
Best interest presumption: “Finally, we reject Jason’s argument that Abigail’s father “affirmatively sought the court’s intervention” and thus “waived the parental presumption in any later modification suit.” n. 80 Abigail’s father filed the original suit affecting the parent-child relationship in this case that resulted in the order naming him a joint managing conservator, and he also sought temporary orders in this modification proceeding. [footnote with authorities omitted].
n. 80-Jason further contends that Abigail’s father waived his complaint under the invited-error doctrine because Abigail’s father filed a proposed judgment. See Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.—Houston [1st Dist.] 1995, writ denied). “When a party specifically seeks entry of an order in a particular form,” Jason contends, “the party cannot then complain about the entry of the order in the form requested.” Abigail’s father, however, objects to the substance of the order, not merely its form; thus, this complaint is without merit.
A fit parent does not forgo the right to parent a child by seeking to exercise that right. A child does not become a “creature of the State,” subject to the court’s unfettered determination of the child’s best interest, because a presumably fit parent invoked the judicial process to establish his or her conservatorship of the child.” In re C.J.C., No. 19-0694, 2020 Tex. LEXIS 610, at *26 (June 26, 2020)
Mootness is a complaint which can first be raised on appeal–and in fact a court of appeals can raise it sua sponte:
Mootness: “Kitchen first argues that his arguments were not mooted by the expiration of the protective order, apparently anticipating that Lutcavage might raise a mootness challenge to this appeal. Lutcavage has not done so, but because mootness implicates jurisdiction, the question “cannot be waived.” Spears v. Falcon Pointe Cmty. Homeowners’ Ass’n, No. 03-16-00825-CV, 2017 Tex. App. LEXIS 9663, 2017 WL 4766652, at *3 (Tex. App.—Austin Oct. 17, 2017, no pet.) (mem. op.) . . . . We will therefore address [*3] the issue.” Kitchen v. Lutcavage, No. 03-19-00421-CV, 2020 Tex. App. LEXIS 4654, at *2-3 (Tex. App.—Austin June 24, 2020)
Remember, you have to comply with the pertinent rules to preserve your complaint–for example, the failure to file a verified denial fails to preserve a complaint that a party lacks capacity (and filing a denial verified “to the best of my knowledge” does not qualify as a verified denial):
Capacity: “In his first and third issues, Miller argues that Maplewood does not have standing to enforce the Declaration’s restrictions because the Subdivision’s [*4] corporate charter has been forfeited and Maplewood is in violation of the Declaration. A challenge to a party’s legal authority to sue presents a challenge to capacity, not standing. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005) (stating capacity is procedural issue dealing with personal qualifications of party to litigate); see generally Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370, 376 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“A forfeiture of corporate privileges deprives a corporation of the capacity to sue, but incapacity does not make a suit void.”). Unlike standing, “[i]ncapacity must be challenged with a verified plea or else it is waived.” Cognata, 375 S.W.3d at 376; see also Tex. R. Civ. P. 93(1); Lovato, 171 S.W.3d at 849.
Rule 93 provides that a pleading must be verified by affidavit if it alleges the plaintiff does not have the legal capacity to sue. Tex. R. Civ. P. 93(1); John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 653 (Tex. App.—Dallas 2013, pet. denied). A valid verification must be based on personal knowledge. Mekeel v. U.S. Bank Nat’l Ass’n, 355 S.W.3d 349, 355 (Tex. App.—El Paso 2011, pet. dism’d) (citing Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008)). Any qualifying verbiage, such as a statement that the affidavit is “based on the best of one’s personal knowledge,” renders the affidavit legally invalid. See Mekeel, 355 S.W.3d at 355 (citation omitted); cf. Wimmer v. Hanna Prime, Inc., No. 05-08-01323-CV, 2009 Tex. App. LEXIS 8866, 2009 WL 3838867, at *2 (Tex. App.—Dallas Nov. 18, 2009, no pet.) (mem. op.) (holding affidavit containing qualifying language, i.e., “to the best of my knowledge,” did not satisfy Rule 93). In the affidavit attached to his amended answer, Miller swore that the alleged facts were “true and correct to the best [*5] of his knowledge.” The qualifying language, however, renders Miller’s verification legally invalid and insufficient to satisfy the requirements of Rule 93. See Mekeel, 355 S.W.3d at 355. Because Miller failed to verify his plea in accordance with Rule 93, he has waived his challenge to Maplewood’s capacity. See Lovato, 171 S.W.3d at 849.” Miller v. Maplewood Square Council of Co-Owners, No. 01-18-00914-CV, 2020 Tex. App. LEXIS 4623, at *3-5 (Tex. App.—Houston [1st Dist.] June 23, 2020)
Here is one in which the Dallas Court holds that the statutory mandate of a court reporter in a contested probate proceeding means a party can first complain on appeal as to the lack of a court reporter in that situation:
Record: “The requirement of a court reporter was mandatory on the statutory probate court under Section 52.046(d) (which “mandates that a ‘judge of a county court or county court at law shall appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge’s court.’”) The court did not have a court reporter to record the testimony. This was error. Further, because the obligation was on the court to supply [*15] the court reporter, and not on Scott to request a court reporter, we reject Family LLC’s argument that Scott waived error by either failing to object or failing to request a court reporter. See Herrera, 2014 Tex. App. LEXIS 4600, 2014 WL 1714011, at *2 (holding that party did not waive appointment of court reporter under Section 52.046(d), in part, because statutory obligation for court reporter was on court, not party).” Smith v. Malone (In re Estate of Poff), No. 01-19-00266-CV, 2020 Tex. App. LEXIS 4622, at *14-15 (Tex. App.—Houston [1st Dist.] June 23, 2020)
Remember–the “newly discovered evidence” complaint that you have to raise in a Rule 324 motion for new trial does not allow you to complain about evidence you knew about during trial:
Newly Discovered Evidence: “[I]t is undisputed that Cook received the transmittal email during trial, not after. Relying upon Rule of Civil Procedure 324(b)(1), Cook argues that it is immaterial whether he received the new document during or after trial because the rule does not draw a distinction between evidence discovered after trial began or after trial ended and the rule should not be interpreted so narrowly. See Tex. R. Civ. P. 324(b)(1). Cook’s reliance upon Rule 324(b)(1) is misplaced. . . .The criteria for acquiring a new trial based on newly discovered evidence, however, are set forth in case law that dictates that a party is not entitled to a new trial on this basis unless it establishes that “the evidence has come to its knowledge since the trial.” Waffle House, 313 S.W.3d at 813; see also Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex. 2003). Because it is undisputed that Cook received the transmittal email during trial, Cook has not established that he is entitled to a new trial based on newly discovered evidence.” Cook v. Monaghan Med. Corp., No. 01-19-00121-CV, 2020 Tex. App. LEXIS 4620, at *6-7 (Tex. App.—Houston [1st Dist.] June 23, 2020)
You have to get a ruling on your complaint:
Summary Judgment (Amended Pleading): “Landlord argues that rule 166a(c) required the trial court to decide its motion based on the pleadings on file on the date of the hearing; Tenant did not properly plead assignment until after the date of the hearing and did not seek leave of court before doing so; and Landlord’s answer had not been stricken at the time of the hearing. See Tex. R. Civ. P. 166a(c) (summary judgment is rendered on pleadings and other specified documents “on file at the time of the hearing, or filed thereafter and before judgment with permission of the court”). We reject these arguments for two reasons. First, although Landlord objected in writing to the filing of Tenant’s second amended petition after the hearing, Landlord did not obtain a ruling on its objection. See Tex. R. App. P. 33.1(a)(2) (as prerequisite to presenting complaint for appellate review, record must show that [*14] trial court ruled or refused to rule on objection).” Tunad Enters. v. Palma, No. 05-19-00497-CV, 2020 Tex. App. LEXIS 4607, at *13-14 (Tex. App.—Dallas June 22, 2020)
Of course, we have a collection of cases holding that a party fails to preserve a complaint which it does not raise in the trial court.
You folks stay safe and well.
Yours, Steve
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com