July 25, 2022

Dear Friends:

We march steadily toward the August 31 end of the fiscal year for the courts of appeals with more error preservation decisions.

Table of Contents

Lack of jurisdiction can first be raised on appeal–like standing–but not an affirmative defense, and courts of appeals don’t always agree on whether a statute is jurisdictional, or an affirmative defense (sometimes the Houston First and Fourteenth disagree)

Jurisdiction
Prevailing Party
Standing

You must make the trial court aware of your complaint–such as bringing your motion to the trial court’s attention–and you must get a ruling on your objection

Affidavit
Dismissal

Recusal

You have to comply other pertinent rules (including the timeliness provisions of the same)

Expert Reports

While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court

Attorney General
Discovery
Invited Error
Unclean hands

Blurbs

Lack of jurisdiction can first be raised on appeal–like standing–but not an affirmative defense, and courts of appeals don’t always agree on whether a statute is jurisdictional, or an affirmative defense (sometimes the Houston First and Fourteenth disagree):

Jurisdiction: “For the first time on appeal, HCCPS and Ford argue that the trial court lacked subject matter jurisdiction based on section 161.211 of the Texas Family Code. Section 161.211 provides that the validity of an order terminating the parental rights of a person who was personally served is not subject to either a direct or collateral attack filed more than six months after the termination order has been signed. See Tex. Fam. Code § 161.211(a).

‘Subject matter jurisdiction is never presumed, cannot be waived, and may be raised for the first time on appeal.’….

Von Falkenhorst’s suit is a direct attack on the validity of the order that terminated his parental rights. A direct attack is a proceeding instituted to correct an earlier judgment and to secure the entry of a single, proper judgment….Each of Von Falkenhorst’s claims derives from his complaint that in 2006 he was denied appointed counsel when his parental rights were terminated. His petition states, “The claims in this lawsuit arise from a 2006 Harris County family law court trial and final decree terminating plaintiff parental rights, 06-27-06.” He seeks to overturn the termination of his parental rights in 2006. He also requests that he be granted a new termination trial, and that he be awarded visitation with the child at issue in the termination suit. Von Falkenhorst makes the same arguments on appeal. The record reflects, and Von Falkenhorst does not dispute, that he was served with notice of the termination proceedings and appeared and announced ready at trial. See TEX. FAM. CODE § 161.211(a). Von Falkenhorst also does not dispute that the order terminating his parental rights was signed in 2006.

There is some disagreement among the courts of appeals as to whether section 161.211(a) is jurisdictional, or whether it is a statute of limitations that is waived if not raised in the trial court….Several courts of appeals, including this Court, have … held that section 161.211(a) is jurisdictional [cases cited from Houston First, Dallas, Amarillo, Eastland, Corpus Christi-Edinburg]…Other courts of appeals have held that section 161.211 is an affirmative defense that is waived if not presented to the trial court. [cases cited from Beaumont; San Antonio; Houston Fourteenth]

Von Falkenhorst admits he received notice of the proceeding, and the record reflects that he appeared and announced ready for trial in 2006. He filed the current lawsuit in 2018. Therefore, section 161.211(a) serves as a jurisdictional bar to his direct attack on the termination order.”  Von Falkenhorst v. Ford, No. 01-20-00864-CV, 2022 Tex. App. LEXIS 4915, at *4-9 (Tex. App.—Houston [1st Dist.] July 19, 2022)

Prevailing Party: “As the prevailing party, the Department was not required to raise its constitutional challenge in the trial court to preserve error for appeal. See In re G.X.H., 627 S.W.3d 288, 295 (Tex. 2021) (having prevailed in the trial court the Department did not need to raise every argument supporting the trial court’s judgment).” In the Int. of J.R., No. 14-22-00176-CV, 2022 Tex. App. LEXIS 4991, at *7 n.2 (Tex. App.—Houston [14th Dist.] July 21, 2022)

Standing: “Ms. Pachecano did not challenge Jackson’s standing to intervene in the probate court. That failure, however, is not a waiver of a jurisdiction-based contention, such as standing.” In re Estate of Gomez, No. 02-21-00290-CV, 2022 Tex. App. LEXIS 5078, at *9 (Tex. App.—Fort Worth July 21, 2022)

You must make the trial court aware of your complaint–such as bringing your motion to the trial court’s attention–and you must get a ruling on your objection:

Recusal: “We note that even in the case of a tertiary recusal motion, where the trial court “shall continue” to preside over the case, sign orders in the case, and move the case to final disposition as though the motion had not been filed, the trial court is otherwise required to “comply with applicable rules of procedure for recusal.” Tex. Civ. Prac. & Rem. Code § 30.016(b). Under rule 18a(f)(1), if the trial court does not sign and file an order of recusal, it must sign and file an order referring the motion to the regional presiding judge. Tex. R. Civ. P. 18a(f)(1). Here, however, the record reflects that the motion was filed in the late afternoon on the day before the hearing and was not mentioned or brought to the trial court’s attention at the hearing. Nor did Father notify the regional presiding judge, as rule 18a(f)(3) permits. Tex. R. Civ. P. 18a(f)(3). On this record, where Father did not establish any grounds for recusal and did not bring the matter to the trial court’s attention, we conclude Father did not preserve his complaint and any error did not “probably cause[ ] the rendition of an improper judgment.” See Tex. R. App. P. 44.1, 33.1.” In the Int. of D.F.D., No. 05-20-00428-CV, 2022 Tex. App. LEXIS 4950, at *7 n.1 (Tex. App.—Dallas July 19, 2022)

Affidavit: “In its second, related issue, Legacy argues that the trial court erred in refusing to rule on its objections and to strike the City’s evidence submitted in its plea to the jurisdiction. Legacy bases its argument on the City’s attempt to admit (1) a printout from the Texas Ethics Commission website and (2) affidavits from the city secretary, to which Legacy objected at the hearing on the City’s plea to the jurisdiction. The trial court did not rule on Legacy’s objections.

Legacy contends that the affidavits from the city secretary are conclusory and constitute hearsay. For reasons set forth above, we have determined they are not conclusory [“the affidavit is not conclusory. The city secretary attested that she was the custodian of records for the City and that the City had no record of the required disclosure form from Legacy. Her affidavit is clear, positive, and direct: the City has no record of receiving a disclosure form from Legacy. Her statement is based on her personal knowledge as the custodian of records….And, her affidavit is susceptible of being readily controverted. Legacy, which was responsible for making the submission to the City, could have produced evidence that it submitted the document to the City. Although the city secretary’s affidavit could have been more detailed, it was not conclusory.”]. Further, Legacy did not obtain a ruling on its hearsay objection to the trial court. An objection that an affidavit contains hearsay is an objection to the form of the affidavit….The failure to obtain a ruling from the trial court on an objection to the form of the affidavit waives the objection…. Because the affidavits produced by the City were unrebutted, the admissibility of the printout from the TEC is immaterial, and we need not address it as it is not necessary for our resolution of this appeal. See Tex. R. App. P. 47.1. Therefore, we overrule Legacy’s second issue.” City of Hutto v. Legacy Hutto, LLC, No. 07-21-00089-CV, 2022 Tex. App. LEXIS 4907, at *13-14 (Tex. App.—Amarillo July 18, 2022)

Dismissal: “However, Wood points to no place in the record where he specifically presented the motion to compel dismissal or the request for entry of a clerk’s judgment to the trial court, where he made a specific request of the trial court for a hearing or a ruling on the motions, or where he made specific objections to the trial court regarding the failure to make a ruling on the motions. Accordingly, any issues related to the motion to compel dismissal or the request for entry of a clerk’s judgment are not preserved for appellate review.” Wood v. Mr. Appliance LLC, No. 10-20-00246-CV, 2022 Tex. App. LEXIS 5023, at *5 (Tex. App.—Waco July 20, 2022)

You have to comply other pertinent rules (including the timeliness provisions of the same):

Expert Reports: “The threshold issue for our determination is whether some of Envision’s objections were untimely and waived as a result. We must make this determination before applying the Scoresby requirements to determine whether this Court has jurisdiction over this interlocutory appeal, so that we examine only the proper challenges to that report….

Seventeen days after filing its answer, Envision filed its written objections to Hadaway’s report arguing it was “deficient” because: (1) Hadaway was not qualified; and (2) Hadaway’s standard of care and breach opinions were “deficient.” Those objections specifically argued that the initial report was “deficient.” Envision did not contend that Hadaway was not qualified to render an expert opinion on causation because only a physician is qualified to do so or that Trader failed to make a good faith effort to comply with the statute’s requirements such that the initial report constituted no report at all, thereby precluding a 30-day extension in which to cure the alleged deficiencies, until Envision filed its motion to dismiss, 181 days after filing its answer. Accordingly, those objections were waived because they were untimely and as a result, they will not be considered when we apply the Scoresby factors….

The record shows that Trader timely served the Hadaway report by the statutory deadline, it contains the opinion of an individual with expertise that the claim has merit, and it implicated the defendant’s conduct. Further, Envision’s timely objections argued only that the Hadaway report was “deficient.” Accordingly, we conclude that the trial court did not abuse its discretion when in concluded the Hadaway report was merely deficient and able to be cured.1 Therefore, § 51.014(a)(9)’s prohibition against an appeal from an order granting an extension applies.” Envision Radiology Tex. LP v. Trader, No. 05-20-00529-CV, 2022 Tex. App. LEXIS 4996, at *9 (Tex. App.—Dallas July 20, 2022)

All for now.  Y’all stay safe and well.

Yours, Steve Hayes

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

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Law Office of Steven K. Hayes

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Phone: 817/371-8759
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Email: shayes@stevehayeslaw.com

Meetings with Mr. Hayes will be by appointment only.

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