Error Preservation in Texas Civil Cases, October 17, 2020

October 17, 2020

Dear All:

We have a few cases to look at today, and here they are:

Table of Contents

The failure to provide notice can render a resulting order void, and that voidness complaint cannot be waived

Notice/Void Order

Subjection matter jurisdiction can be first raised on appeal; standing is a component of subject matter jurisdiction

Standing
Subject Matter Jurisdiction

Your complaint must be sufficiently specific–and there are limits to what a legal sufficiency complaint will preserve

Jury Charge

You must present your complaint to the trial judge and get a ruling

Testimony
Testimony

You must timely object to evidence, and object to other similar evidence

Testimony
Testimony

Your complaint must comport with the pertinent rules

Evidence
Notice (Summary Judgment Hearing)

The Blurbs

The failure to provide notice can render a resulting order void, and that voidness complaint cannot be waived:

Notice/Void Order: “Applying Mask to the present case, the failure to personally serve Farr with notice prior to signing the Order, if proved, establishes that the Order is [*10] void. Being a complete nullity, the Order could not later be given life by any ratification, confirmation, or waiver by Farr.” Farr v. Barnes, No. 04-19-00895-CV, 2020 Tex. App. LEXIS 8112, at *9 (Tex. App.—San Antonio Oct. 14, 2020)

Subjection matter jurisdiction can be first raised on appeal; standing is a component of subject matter jurisdiction:

Standing: “Before we can reach the merits of relators’ petition, we first must determine whether relators have standing to bring this original proceeding. In re Hotze, No. 14-08-00421-CV, 2008 Tex. App. LEXIS 9897, 2008 WL 4380228, at *1 (Tex. App.—Houston [14th Dist.] July 10, 2008, no pet.) (per curiam) (mem. op.). The relators’ standing is an element of our subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). Subject-matter jurisdiction is never presumed, and lack of subject-matter jurisdiction is fundamental error that cannot be waived. Id. When we sua [*3] sponte review a party’s standing, we construe the petition in favor of the party and, if necessary, review the entire record to determine if any evidence supports standing. Id. at 446. Standing is a constitutional prerequisite to obtaining judicial relief, and courts have no subject-matter jurisdiction over and therefore must dismiss claims made by parties who lack standing to assert them. See Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012).” In re Pichardo, No. 14-20-00697-CV, 2020 Tex. App. LEXIS 8122, at *2-3 (Tex. App.—Houston [14th Dist.] Oct. 14, 2020)

Subject Matter Jurisdiction: “To the extent IQ Life Sciences argues HCAD waived its challenge to the trial court’s subject-matter jurisdiction over this lawsuit by including a request for disclosure in its original answer, we disagree. (BR24) See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (stating that a court’s subject-matter jurisdiction “cannot be conferred upon any court by consent or waiver”).” Harris Cty. Appraisal Dist. v. IQ Life Scis. Corp., No. 14-18-00984-CV, 2020 Tex. App. LEXIS 8107, at *21 n.3 (Tex. App.—Houston [14th Dist.] Oct. 13, 2020)

Your complaint must be sufficiently specific–and there are limits to what a legal sufficiency complaint will preserve:

Jury Charge: “However, if a party believes that the jury charge presents an improper measure of damages because it allows the jury to find both tort and contract damages, [*19] such party much timely object and make the trial court award of its complaint in order to preserve error for appeal. Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007). No-evidence complaints that do not argue the Economic Loss Rule, by name or in substance, do not clearly and distinctly make the trial court aware of a contention that the Economic Loss Rule applies. See id. In this case, Prime Texas did not object to the jury charge questions on damages and, in its post-judgment motions, it argued only that the evidence was legally and factually insufficient to support the “course-and-scope” and “knowing” findings. Because Prime Texas never argued to the trial court that the Economic Rule was applicable, that contention is waived on appeal. See id.Prime Tex. Surveys, LLC v. Ellis, No. 01-19-00372-CV, 2020 Tex. App. LEXIS 8147, at *18-19 (Tex. App.—Houston [1st Dist.] Oct. 15, 2020)

You must present your complaint to the trial judge and get a ruling:

Testimony: “Mother contends that the trial court’s statement of “[i]f it’s an outcry, it’s not hearsay[,] [r]ephrase,” to the sole objection lodged in the above excerpt somehow preserved Mother’s hearsay argument on appeal as to the entire excerpt. We disagree. Mother’s objection was lodged to the question, “And what did [[Child]] say?” Rather than ruling on that objection, the trial court asked [Appellees’] counsel to rephrase the question. [Appellees’] counsel then rephrased the question and asked about specific instances of abuse, and Mother did not object to any of the questions pertaining to those specific instances. Mrs. [Appellee] thus testified—without objection—regarding Mother’s slapping [Child], Mother’s making [Child] spend the night on the balcony in his underwear, Mother’s throwing a chair at Samantha, and Mother’s making the Children spend long periods home alone. Because Mother did not object to this testimony, Mother’s hearsay complaint is not preserved. See Tex. R. App. P. 33.1(a)(1)(A); Bushell, 803 S.W.2d at 712. Accordingly, we may consider this evidence in our review.” In the Interest of M.S., No. 02-20-00147-CV, 2020 Tex. App. LEXIS 8171, at *16-17 (Tex. App.—Fort Worth Oct. 15, 2020)

Testimony: Opponent withdrew the objected to question, and “then continued his questioning about another subject without further comment by the defense. Thus, there was no evidence admitted here, and the trial court never ruled on the objection. If Dr. Virlar and Gonzaba believed the mere asking of the question was prejudicial, to preserve error, they needed to obtain a ruling on their objection, and if that objection was sustained, move for the trial court to instruct the jury to disregard the question. See Tex. R. App. P. 33.1. They needed to request relief from the trial court at a point in the proceedings when the trial court could have cured any alleged error.” Virlar v. Puente, No. 04-18-00118-CV, 2020 Tex. App. LEXIS 8119, at *31 (Tex. App.—San Antonio Oct. 14, 2020)

You must timely object to evidence, and object to other similar evidence:

Testimony: “Even if we assumed that Mother’s objection—which occurred after Father gave his answer—was timely, Mother has waived any complaint regarding Father’s testimony because, as mentioned above, Mrs. [Appellee] testified—without objection—that [other Child] had told her that Mother had slapped [Child] across the face after he got in trouble at school. Mrs. [Appellee] then described—again without objection—how Mother’s slap had left “marks” and “bruises” on [Child]’s face. Because evidence relating to the slap was later admitted without objection, Mother has waived her hearsay complaint regarding Father’s testimony relating to the slap.” In the Interest of M.S., No. 02-20-00147-CV, 2020 Tex. App. LEXIS 8171, at *18 (Tex. App.—Fort Worth Oct. 15, 2020)

Testimony: “As noted previously, a ruling by the trial court on a motion in limine “does not preserve error on evidentiary rulings at trial because it does not seek a ruling on admissibility; rather, the purpose of such a motion ‘is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury’ without seeking the trial court’s permission.”” Virlar v. Puente, No. 04-18-00118-CV, 2020 Tex. App. LEXIS 8119, at *39 (Tex. App.—San Antonio Oct. 14, 2020)

Your complaint must comport with the pertinent rules:

Evidence: “Thus, defense counsel obtained a ruling by the trial court to the question “And [*45] you know what that resulted in, don’t you?” However, defense counsel did not obtain an adverse ruling. After the trial court sustained the objection made by defense counsel, Puente’s counsel moved on to another topic. To preserve error, defense counsel would have needed to move to instruct the jury to disregard, and if the trial court complied, he would have then needed to move for a mistrial. See Tex. R. App. P. 33.1.” Virlar v. Puente, No. 04-18-00118-CV, 2020 Tex. App. LEXIS 8119, at *44-45 (Tex. App.—San Antonio Oct. 14, 2020)

Notice (Summary Judgment Hearing): “We conclude that Emmanuel has not preserved a complaint for appellate review on the issue of timely notice of the motion for summary judgment. See Tex. R. App. P. 33.1(a). Emmanuel did not make such a complaint in the trial court in writing. Even if Emmanuel did raise the issue at the hearing, he was granted relief. Emmanuel’s written request for more time was unsupported by affidavit evidence and he did not obtain a ruling in the trial court. Accordingly, Emmanuel’s first issue is overruled.” Emmanuel v. Izoukumor, Nos. 14-19-00361-CV, 14-19-00362-CV, 2020 Tex. App. LEXIS 8175, at *5 (Tex. App.—Houston [14th Dist.] Oct. 15, 2020)

Interestingly, the concurrence saw the preservation question a little differently: “Under the Fourteenth Court of Appeals’s error-preservation precedent, a party may preserve error in a post-judgment motion for new trial as to a complaint that the party received no notice of the summary-judgment motion or the hearing, because a party in this posture lacks the ability to attend the summary-judgment hearing. On the other hand, if a party complains it received notice that was untimely but sufficient to enable the party to attend the summary-judgment hearing, to preserve error the party must file [*11] a motion for continuance or raise the complaint of late notice in writing, supported by affidavit evidence, and put before the trial court during the summary-judgment hearing. Under his first issue, Emmanuel asserts the former complaint rather than the latter. Thus, Emmanuel preserved error by his motion for new trial. Though Emanuel preserved this complaint in the trial court, Emmanuel had the burden of proving his allegation that Izoukumor did not serve her summary-judgment motion on Emmanuel and that Emmanuel only learned of the motion after the trial court granted it. Because Emmanuel submitted no proof of this allegation, the trial court did not abuse its discretion in denying Emmanuel’s request for a new trial based on this allegation.” Emmanuel v. Izoukumor, Nos. 14-19-00361-CV, 14-19-00362-CV, 2020 Tex. App. LEXIS 8175, at *10-11 (Tex. App.—Houston [14th Dist.] Oct. 15, 2020) (Frost, CJ, concurring)

All for now.  Y’all have a great, and safe, weekend.

Yours,

Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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