August 27, 2022
Sorry, folks. I have gotten way behind on posting. The following will bring us up to date through August 20, 2022. I’ll try to get this last week’s rulings posted in the near future.
Table of Contents
A post-trial legal sufficiency complaint in a motion for new trial can preserve a complaint that the expert’s opinion was conclusory–but not a complaint about the reliability of the opinion or the expert’s methods
This Court held that a party preserved a complaint about a jury charge
Sometimes, the trial court presents you with a difficult situation, but persevere as best you can
Standing, as a component of subject matter jurisdiction, can first be raised on appeal. Some courts also say that a complete absence of authentication on a summary judgment affidavit can first be raised on appeal, but to me this seems to conflict with a holding by SCOTX in Mansions, 365 S.W.3d at 317
Sometimes, repeating your complaint carries the day
You have to bring your complaint to the trial court’s attention–having a hearing and getting a ruling are two ways to make sure you did so
Your complaint must be sufficiently specific
Here is a case describing a situation in which a formal offer of proof was not necessary to preserve a complaint about excluding evidence–but the court’s “best practices” comment reminds us to make the offer
You complaint on appeal must correspond with the complaint you made at trial
Your complaint must be timely, and with evidentiary objections that means you must get a running objection and object to subsequent similar evidence
Contractual Jury Waiver
You have to comply other pertinent rules
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Single Injury Rule
A post-trial legal sufficiency complaint in a motion for new trial can preserve a complaint that the expert’s opinion was conclusory–but not a complaint about the reliability of the opinion or the expert’s methods:
Legal Sufficiency/Expert: “But only some of Delarosa’s arguments about Dr. Turner’s testimony are reviewable here. …Delarosa only challenged the State’s evidence with a post-verdict motion for new trial. Because he did not object, or file any pre-trial motion, to preserve an expert-testimony challenge, he forfeited any challenge to the reliability of Dr. Turner’s expert opinions or methodology….On the other hand, the motion for new trial preserved challenges to the legal and factual sufficiency of the evidence, which can encompass challenges that Dr. Turner’s testimony was speculative or conclusory. “[A] party need not object in order to challenge . . . expert testimony as conclusory or speculative on its face; it need only preserve a challenge to the legal sufficiency of the evidence, which it may do post-verdict.” Id. Because Delarosa preserved his legal-sufficiency challenge through his motion for new trial,…we may review his arguments that Dr. Turner’s testimony was conclusory or speculative. This kind of review “is restricted to the face of the record.”” In re Delarosa, No. 03-21-00541-CV, 2022 Tex. App. LEXIS 5963, at *6-7 (Tex. App.—Austin Aug. 17, 2022, no pet. h.)
This Court held that a party preserved a complaint about a jury charge:
Jury Charge: “We begin by considering whether Cobb preserved error. The Hansens argue Cobb failed to do so, on the theory that Cobb’s proposed amended jury submissions were not filed with the trial court and submitted in writing in substantially correct form before the case was submitted to the jury. Along with rule 278, the Hansens cite various cases as support for their position.5 Cobb attempts to distinguish those cases and argues he complied with rule 278.
We agree with Cobb. Near the beginning of the formal charge conference, the court stated:
THE COURT: The initial issue — the initial Charge that was filed just dealt with premises liability and whether the plaintiff was an invitee or a licensee. Based upon the evidence that the Court has heard during the course and scope of the testimony and the case law that was provided, the Court has determined that the plaintiff is a licensee.
The amended proposed jury charge presented by [Cobb] added a general negligence question, which is under 4.1 of the PJC . . . and . . . did a trial brief on the matter.
The court also noted that it had handed the parties’ counsel United Scaffolding, Inc. v. Levine, 537 S.W.3d 463 (Tex. 2017) and that they had read it.
Cobb’s counsel then attempted to distinguish United Scaffolding, and in response to questions from the court regarding Cobb’s pleadings and proof, Cobb’s counsel discussed the contemporaneous activity as alleged in the pleadings and as witnesses testified to during trial, which included allegations in the pleadings that Lisa Hansen asked Cobb to light the oven, handed him matches, and instructed him simply to turn on the gas and light it by bringing a lit match close to the gas emitter inside the oven, without disclosing to Cobb anything else. The Court and Cobb’s counsel then engaged in the following exchange:
THE COURT: So, basically, what I hear you saying to me is, Judge, the general negligence 4.1 question needs to be in. And you are objecting to the fact that I have not put it into the Charge.
[COBB’S COUNSEL]: Yes, Your Honor. I am objecting to you not putting the general negligence question into the Charge.
Following additional discussion and argument by both sides’ counsel, the court then stated, “The court is going to reject . . . that addition to the charge. Your objection is made for the record.”
As those portions of the record reflect, during the formal charge conference, Cobb objected to the omission of a general negligence question, requested in writing and tendered a proposed general negligence question under PJC 4.1 to the trial court, and obtained a ruling from the trial court refusing to submit the requested question. By doing so, Cobb “made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”” Cobb v. Hansen, No. 05-19-01327-CV, 2022 Tex. App. LEXIS 6101, at *11-13 (Tex. App.—Dallas Aug. 18, 2022, no pet. h.)
Sometimes, the trial court presents you with a difficult situation, but persevere as best you can:
Evidence: “Generally, complaints must be preserved for appellate review. See Tex. R. App. P. 33.1. And a complaint regarding the exclusion of evidence is usually preserved by an offer of proof. See Tex. R. Evid. 103(a)(2). “This rule does not apply, however, when the trial court refuses to permit the appellant to present any evidence.” In re J.R.K., No. 06-10-00121-CV, 2011 Tex. App. LEXIS 5287, 2011 WL 3242264, at *4 (Tex. App.—Texarkana July 8, 2011, no pet.) (mem. op.). Furthermore, it has been held that when a trial court ends the trial and renders judgment in open court, “the losing party’s objections are to the court’s judgment or the effect thereof, and they need not be recited in open court.” Tobola v. State, 538 S.W.2d 868, 870 (Tex. App.—Houston [14th Dist.] 1976, no writ). We cannot agree with the mother’s contention that we should overrule Appellant’s fourth point of error because he failed to preserve it for review.
Here, not only did the trial court prohibit Appellant from presenting any evidence, it also prohibited Appellant from objecting to the trial court’s ruling and from making any offer of proof before the trial court rendered its judgment. The trial court abruptly halted the trial before the plaintiff had rested her case in chief; prohibited the defendant from talking and, thus, from pursuing an objection or offer of proof; and rendered judgment for the plaintiff without permitting the defendant to call any witnesses to dispute the plaintiff’s evidence. There is no question that Appellant should have been permitted to present evidence on his behalf in response to the mother’s efforts to terminate his parental rights. See Muegge, 669 S.W.2d at 719. Accordingly, the trial court erred when it rendered judgment in favor of the mother without providing Appellant an opportunity to present evidence and call his witnesses to testify.” In the Int. of A.C.R., No. 11-22-00070-CV, 2022 Tex. App. LEXIS 5262, at *5-7 (Tex. App.—Eastland July 28, 2022)
Standing, as a component of subject matter jurisdiction, can first be raised on appeal. Some courts also say that a complete absence of authentication on a summary judgment affidavit can first be raised on appeal, but to me this seems to conflict with a holding by SCOTX in Mansions, 365 S.W.3d at 317, that a complaint about the lack of a jurat, coupled with no extrinsic evidence the affidavit was sworn to, is a complaint that has to be raised in the trial court:
Affidavit: “Although BANA did not obtain a ruling on its objections to Johnson’s summary judgment evidence, the complete absence of authentication, as in this case, is a substantive defect that can be raised for the first time on appeal. See In Estate of Guerrero, 465 S.W.3d 693, 706-08 (Tex. App.—Houston [14th Dist.] 2015, pet.); see also Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.) (stating in summary-judgment context that “[a] complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal”).” Johnson v. Bank of Am., N.A., No. 01-21-00432-CV, 2022 Tex. App. LEXIS 5903, at *10 n.5 (Tex. App.—Houston [1st Dist.] Aug. 16, 2022)
Standing: “Great Plains argues American General has somehow waived its arguments regarding standing. Because standing is a necessary component of a court’s subject-matter jurisdiction, it cannot be waived and can be raised for the first time on appeal. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). American General did not waive its standing to appeal.” In re Great Plains Mgmt. Corp., No. 04-21-00110-CV, 2022 Tex. App. LEXIS 5181, at *8 n.5 (Tex. App.—San Antonio July 27, 2022)
Sometimes, repeating your complaint carries the day:
Privilege: “Sousa also argues that Oliver-Parrott inappropriately required the production of the entire file between attorneys Dan McCarthy and Penelope McCarthy and their client, Sousa. Bergman did not reverse this ruling despite at least one request from Sousa. On appeal, Sousa argues she was prejudiced by the production of this attorney-client file and, as proof, cites to the arbitration award which quotes an email from Sousa to Dan McCarthy memorializing her intent to sue Faucett after the conclusion of the trade-secret litigation.20 The IP attorneys argue the disclosure of the McCarthys’s attorney-communication file was necessary to their counterclaims and appropriate because Sousa was offensively using the affidavit(s) from Penelope McCarthy including McCarthy’s opinion “as to virtually everything at issue in the arbitration.” The IP attorneys also argue that Sousa did not preserve error on the issue because she did not make any objection at the hearing as to any privileged documents. We disagree that Sousa did not preserve her objection as she repeatedly raised the issue in pre-hearing proceedings as well as during the final hearing and received an adverse ruling. See Tex. R. App. P. 33.1.” Sousa v. Goldstein Faucett & Prebeg, LLP, No. 14-20-00484-CV, 2022 Tex. App. LEXIS 5277, at *32-33 (Tex. App.—Houston [14th Dist.] July 28, 2022)
You have to bring your complaint to the trial court’s attention–having a hearing and getting a ruling are two ways to make sure you did so:
Attorney Fees: “Alolabi argues that the trial court erred by awarding attorney’s fees without an oral hearing. Chretien responds that Alolabi did not preserve this complaint for appellate review. We agree.
Before trial, the parties agreed that the court would decide the issue of attorney’s fees, rather than the jury. Months after the jury’s verdict, Chretien moved for entry of judgment, including attorney’s fees. He attached an affidavit from his counsel and time sheets to support his fee request.
Alolabi opposed the motion. He objected to the amount of fees, but he did not object to the procedure of submitting them through a motion or to the court deciding them without an oral hearing. He also did not attach evidence to controvert the evidence Chretien presented regarding attorney’s fees. After the judgment was entered, Alolabi moved to modify the judgment and for remittur. Again, he did not argue that the trial court erroneously entered judgment on attorney’s fees without a hearing.
As a prerequisite to presenting a complaint for appellate review, the record must reflect that the complaint was made to the trial court by a timely request, objection, or motion with enough specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1). Alolabi failed to present his complaint to the trial court. We hold that his complaint regarding the entry of attorney’s fees without oral hearing is waived.” Alolabi v. Chretien, No. 01-20-00761-CV, 2022 Tex. App. LEXIS 5256, at *20-21 (Tex. App.—Houston [1st Dist.] July 28, 2022)
Attorney Fees: “Pending before the Court is the motion for rehearing filed by MS. One ground urged warrants attention by the Court. It concerns the presentation of the motion for new trial. MS suggests it was not necessary because the evidence within her verified motion purportedly was undisputed. We disagree.
As best said in Shamrock Roofing Supply, Inc. v. Mercantile Nat’l Bank, 703 S.W.2d 356 (Tex. App.—Dallas 1985, no writ), “[t]rial judges have a heavy load of trials and contested motions.” Id. at 357. “They cannot be expected to examine sua sponte all papers filed in their courts.” Id. “They must rely on counsel to see that motions are set for hearing.” Id. And, while the rules of procedure may have dispensed with the need to present the motion to preserve the complaint for appeal, that is not true in all cases. When a new trial motion implicates the trial court’s exercise of discretion, “the judge must have an opportunity to” do so “before that discretion can be abused.” Id. at 358. Denying him the chance by failing to call the motion to the court’s attention and thereby permitting it to be overruled by operation of law insulates the result from a claim of abused discretion. Id.
As we explained in our original opinion, the tenor of the statements contained within the verified motion for new trial, the evidence of emails being exchanged about hearing dates, and representations to the trial court by counsel who attended the hearing fell short of painting only one clear, uncontroverted picture regarding everyone’s knowledge (or lack thereof) of the hearing date. Together, they created a situation requiring the trial court to delve into the matter, determine what actually happened, and decide whom to believe. That obligated MS to afford the trial court an opportunity to exercise its discretion by calling her motion to the trial court’s attention, i.e., present her motion to the court.” In the Int. of D.N.A., No. 07-22-00077-CV, 2022 Tex. App. LEXIS 6097, at *1-2 (Tex. App.—Amarillo Aug. 18, 2022, no pet. h.)
Discovery: “Here, although Noel filed several motions to compel discovery, the record does not reflect that Noel set the motions for hearing or otherwise brought them to the trial court’s attention. Nor does the record show that the trial court ruled on the motions or that Noel objected to the trial court’s refusal to rule. Therefore, the error has not been preserved and the complaint is waived. See Tex. R. App. P. 33.1(a); ….
Noel argues that he preserved error by filing a motion for new trial after the trial court dismissed his claim. However, a motion for new trial is not sufficient to preserve error on a discovery issue… Raising the objection in a motion for new trial does not satisfy the rule’s timeliness requirement if the complaint could have been raised earlier. Id. Thus, Noel’s objection to the trial court’s refusal to rule on his discovery motions raised for the first time in a motion for new trial was not timely under Rule 33.1.” Noel v. Oakbend Med. Ctr., No. 01-21-00206-CV, 2022 Tex. App. LEXIS 5408, at *20-21 (Tex. App.—Houston [1st Dist.] Aug. 2, 2022)
Pleadings: “Less than a week before trial, Meyer sought leave to file his amended petition in intervention asserting new claims against Alolabi, and he also moved to sever the new claims from the underlying case. See Tex. R. Civ. P. 63 (stating that any pleadings filed within seven days of trial or thereafter, shall be filed only after obtaining leave of court). Alolabi moved to strike the pleading. Neither party obtained rulings on these motions. See Tex. R. App. P. 33.1 (failure to obtain a ruling waives complaint for appellate review). Therefore, this complaint is not preserved for our review.
Even assuming the trial court granted leave to file the amended pleading but did not sever the claims, Alolabi did not seek a continuance to prepare for trial. Meyer was present for trial and did not present his claims to the jury. Meyer waived his claims. See Tex. R. Civ. P. 279 (claims not submitted to the jury are waived).” Alolabi v. Chretien, No. 01-20-00761-CV, 2022 Tex. App. LEXIS 5256, at *9 (Tex. App.—Houston [1st Dist.] July 28, 2022)
Your complaint must be sufficiently specific:
Attorney Fees: “In issue 5, Sousa argues that the trial court erred in denying her motion for new trial, without hearing, on the grounds she was entitled to Scott Clearman’s portion of the attorney’s fees stemming from one of the settlement amounts received by the IP attorneys. Sousa argues that her Fourteenth Amendment due-process rights were violated by the trial court’s alleged error, as well her right to be heard under the Texas Constitution’s open courts provision. U.S. Const. amend. XIV; Tex. Const. art. I, §13.
During the underlying litigation, Sousa settled with Scott Clearman, formerly a partner of Clearman Prebeg, LLC n/k/a CP Windup, who agreed Sousa would be entitled to receive his portion of the attorney’s fees received by Clearman Prebeg, LLC, by virtue of his partnership interest, from a settlement with Efficien Technology, LLC, a company affiliated with the Texas Licensees. Clearman believed he was entitled to some portion of the attorney’s fees from the Efficien settlement, though they had not been paid to Clearman. Therefore, Sousa claimed she was entitled to 25% of “the award owed to Clearman Windup.”21 In her motion for new trial, Sousa argued that the arbitration award is “totally deficient” because it does not set out the award to CP Windup or address Sousa’s request for a declaratory judgment. Sousa’s motion devotes two sentences to this issue, offers no further context or explanation and does not discuss whether the issue or declaratory judgment was ever submitted to or considered by the arbitrator. Sousa’s motion for new trial offered no citations to the record or evidence supporting this argument.
We conclude that Sousa did not preserve error on this issue as she did not make her request to the trial court with sufficient specificity to make the trial court aware of her complaint where the specific grounds were not apparent from the context.22 Tex. R. App. P. 33.1(a).” Sousa v. Goldstein Faucett & Prebeg, LLP, No. 14-20-00484-CV, 2022 Tex. App. LEXIS 5277, at *40-41 (Tex. App.—Houston [14th Dist.] July 28, 2022)
Evidence: “As for Alice’s argument that the trial court abused its discretion in admitting Petitioner’s No. 6 and No. 7 because they were hearsay that did not fall under a hearsay objection under Rules 803(6) or 902(10) of the Texas Rules of Evidence, Alice made a blanket hearsay objection. A blanket hearsay objection that does not identify which parts of a document contain hearsay is not sufficiently specific to preserve error with respect to those parts. Flores v. City of Liberty, 318 S.W.3d 551, 560 (Tex. App.—Beaumont 2010, no pet.); see also Tex. R. App. P. 33.1.; Speier v. Webster Coll., 616 S.W.2d 617, 619 (Tex. 1981) (“A general objection to a unit of evidence as a whole, . . . which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible.”).” In the Int. of D.P., No. 09-22-00048-CV, 2022 Tex. App. LEXIS 5279, at *48-49 (Tex. App.—Beaumont July 28, 2022)
Here is a case describing a situation in which a formal offer of proof was not necessary to preserve a complaint about excluding evidence–but the court’s “best practices” comment reminds us to make the offer:
Evidence: “In her brief, Wife asserts that Husband forfeited the issue by failing to object or make an offer of proof during the hearing on the motion. As the ruling in question involves the exclusion—not the admission—of evidence, an objection alone is ordinarily insufficient to preserve a claim of error. See Tex. R. Evid. 103(a). Rather, to preserve a claim of error based upon the exclusion of evidence, a party must make an offer of proof unless the substance is apparent from the context. Tex. R. Evid. 103(a)(2). “The primary purpose of an offer of proof is to enable the appellate court to determine whether the exclusion was erroneous and harmful. A secondary purpose is to permit the trial judge to reconsider his ruling in light of the actual evidence.”….We hold that Husband preserved his claim of error regarding the trial court’s exclusion of his testimony. n. 6 The affidavit attached to the motion informed the trial court of the substance of Husband’s duress complaint, and the trial court’s statements on the record suggest that he had reviewed the affidavit and was familiar with its contents.7 Thus, when he made his ruling, the trial judge was aware of the subject matter of Husband’s intended testimony. Given the totality of the circumstances and assuming that the content of Husband’s excluded testimony would have been, in all meaningful respects, identical to that of the affidavit,8 the substance was apparent from the context, and the claim of error was preserved.
n. 6 We emphasize the narrowness of this ruling. The best practice would have been for Husband’s counsel to make a formal offer of proof after the trial court sustained Moghadassi’s objection or, failing that, to have filed a formal bill of exception. See Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2). However, given the context of the trial court’s evidentiary ruling and Husband’s trial counsel’s reasonable interpretation that this ruling would have precluded her from making an offer of proof, we conclude that, on these specific facts, the issue has been preserved. Cf. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221-22 (Tex. 2017) (“We generally hesitate to turn away claims based on waiver or failure to preserve the issue.”).” Emami v. Emami, No. 02-21-00319-V, 2022 Tex. App. LEXIS 5840, at *5 n.6 (Tex. App.—Fort Worth Aug. 11, 2022)
Evidence: “Appellant contends the trial court erroneously overruled his objection, which diminished his credibility. He argues on appeal that the testimony was inadmissible under Texas Rule of Evidence 701 regarding opinion testimony by lay witnesses. However, Appellant did not make that objection in the trial court. Appellant’s objection of “speculation” was not specific enough to inform the trial court he was also objecting under Rule 701. See In Interest of M.M.W., 536 S.W.3d 611, 612 (Tex. App.—Texarkana 2017, no pet.). Therefore, this issue is not preserved for our review.” In re Commitment of George Cleveland Auvil, No. 12-22-00062-CV, 2022 Tex. App. LEXIS 5750, at *4 (Tex. App.—Tyler Aug. 10, 2022)
You complaint on appeal must correspond with the complaint you made at trial:
Attorney Fees: Alolabi argues that attorney’s fees are not available because Chretien failed to present his claim for attorney’s fees to Alolabi. Chretien responds that Alolabi waived this argument. We agree….On appeal, Alolabi argues that he preserved his complaint by including it in his response to the motion for entry of judgment and his motion to modify the judgment. A review of the trial court briefing does not support this assertion. These motions argued that attorney’s fees should be segregated and were excessive. Alolabi failed to raise presentment at the trial court and failed to preserve error. Tex. R. App. P. 33.1.” Alolabi v. Chretien, No. 01-20-00761-CV, 2022 Tex. App. LEXIS 5256, at *23-24 (Tex. App.—Houston [1st Dist.] July 28, 2022)
Evidence: “To the extent Alolabi argues that the evidence was not admissible because it was hearsay or improper impeachment evidence, this argument is waived. A complaint on appeal that does not comport with the party’s objection at trial is not preserved for review. Tex. R. App. P. 33.1(a). At trial, he objected based only on relevancy. Alolabi did not raise any other objections to the evidence in the trial court. Any argument regarding its admissibility based on hearsay or improper impeachment is not preserved for our review. Tex. R. App. P. 33.1(a).” Alolabi v. Chretien, No. 01-20-00761-CV, 2022 Tex. App. LEXIS 5256, at *15 (Tex. App.—Houston [1st Dist.] July 28, 2022)
Evidence: “Appellant’s trial counsel clearly objected to the four exhibits, as unauthenticated. (e.g., “I would be opposed to the unauthenticated documents being shown to the Court.”). Though the attorney’s explanation spanned beyond that objection, the remainder of her argument was focused on appellant’s opposition to affording either party additional time, but not with the trial court’s failure to provide access to the webpages five days in advance of the hearing. We cannot reasonably interpret any of the comments appellant’s counsel made in the context of the objection to the webpages as based on the contention that the trial court violated Texas Family Code section 54.11(d). Because the record lacks an objection to the statutory violation or an objection that corresponds with the objections made at the trial level, appellant has failed to preserve his specific complaint on appeal. Clark, 305 S.W.3d at 355; See also Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a).” In the Int. of J.D.T., No. 14-20-00689-CV, 2022 Tex. App. LEXIS 5681, at *8-9 (Tex. App.—Houston [14th Dist.] Aug. 9, 2022)
Dangerous Condition: “We begin our review by addressing Appellant’s first issue group. See Tex.Civ.Prac.&Rem.Code Ann. § 51.014(a)(8)(interlocutory appeal from denial of a plea to the jurisdiction filed by a governmental unit is permissible); Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)(Section 51.014(a)(8) permits appeal of a trial court’s denial of a governmental entity’s claim of no jurisdiction, regardless of procedural method used to contest it). However, Appellant’s plea to the jurisdiction addressed only the disputed existence of an unreasonably dangerous condition and Appellant’s lack of actual notice regarding it. It did not address Appellee’s lack of knowledge regarding the dangerous condition. Accordingly, any argument regarding Appellee’s failure to adequately demonstrate she lacked actual knowledge of the dangerous condition has not been preserved for review. See Tex. Dep’t of Motor Vehicles v. Bustillos, 630 S.W.3d 316, 327 (Tex.App.—El Paso 2021, no pet.)(citing TEX.R.APP.P. 33.1(a)(1)(A)).” City of El Paso v. Pina, No. 08-20-00159-CV, 2022 Tex. App. LEXIS 5652, at *4-5 (Tex. App.—El Paso Aug. 8, 2022)
Your complaint must be timely, and with evidentiary objections that means you must get a running objection and object to subsequent similar evidence:
Contractual Jury Waiver: “But in any event, we conclude that real parties’ efforts to tie preservation to the September 2020 hearing were already too late. By then, ten months had passed since real parties made their initial jury demand in their original pleading in the first suit and paid the jury fee. Real parties had also filed four pleadings requesting a jury during that timeframe without objecting to relator’s request for a jury. We conclude that by September 10, real parties had waived their right to enforce the contractual jury waivers. See id. at 367-68 (holding four-month delay in pursuing right to non-jury trial waived right). The right to rely on the contractual waivers could not be resuscitated by equivocal statements of counsel, especially in the face of continued pleadings-based demands for a jury trial.” In re Five Star Glob., LLC, No. 05-22-00153-CV, 2022 Tex. App. LEXIS 5918, at *17-18 (Tex. App.—Dallas Aug. 15, 2022, no pet. h.)
Evidence: “The general rule is error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004). We find this to be the case here. After the document’s admission, the same evidence was subsequently introduced multiple times without objection. Any error, if any, in the admission of the statement is therefore harmless. Issue Two is overruled.” Jewell v. State, No. 08-20-00228-CV, 2022 Tex. App. LEXIS 5667, at *12 (Tex. App.—El Paso Aug. 8, 2022)
You have to comply other pertinent rules:
Affirmative Defenses(Findings): “A party asserting an affirmative defense in a bench trial must request findings in support of that defense in order to avoid waiver on appeal. …Tenant did so, requesting findings that Landlord’s actions in marking up invoices and sending them to Tenant for payment, as well as Landlord’s intent to preclude Tenant from auditing construction costs or knowing actual costs, were material breaches of the lease.
The trial court’s findings of fact and conclusions of law, however, did not include Tenant’s proposals regarding material breaches of the lease. If the trial court’s findings do not do not include any of the elements of the affirmative defense asserted, the party must specifically request additional findings relevant to the defense….Tenant did not request additional findings. Instead, Tenant filed a motion to enter judgment requesting that the trial court “enter a judgment consistent with the Findings of Fact and Conclusions of Law.” Consequently, Tenant has waived any error with respect to his affirmative defense of a prior material breach. See id.” 2100 Ricchi, LLC v. Hilliard Office Sols. of Tex., Ltd., No. 05-21-00158-CV, 2022 Tex. App. LEXIS 5569, at *14-15 (Tex. App.—Dallas Aug. 3, 2022)
Capacity: “Citing the Texas Tax Code, Attalla contends the trial court erred in entering judgment for Loyc Investments because it had forfeited its charter in 2018 by failing to pay franchise taxes and thus lacked capacity to sue or defend in its own name. When a party challenges another’s capacity, he challenges the other’s legal authority to participate in the lawsuit. …To raise the issue of capacity, a party must file a verified pleading. Tex. R. Civ. P. 93. If the party fails to raise the issue of capacity in a verified pleading in the trial court, he cannot contest capacity on appeal. …The issue is waived….Attalla challenged the capacity of Loyc Investments in the trial court based on the forfeiture of its charter, but he did not do so in a verified pleading. Having failed to raise the issue of capacity in a verified pleading, Attalla has waived the issue.” Attalla v. Loyc Invs. Ltd., No. 01-21-00078-CV, 2022 Tex. App. LEXIS 5253, at *21-22 (Tex. App.—Houston [1st Dist.] July 28, 2022)
Evidence: “To preserve error when evidence is excluded, the offering party must inform the court of the substance of the evidence by an offer of proof, unless the substance was apparent from the context. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(2). Straughan did not make an offer of proof; thus, he failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(2).” Straughan v. Girsch, No. 14-20-00763-CV, 2022 Tex. App. LEXIS 5285, at *13 (Tex. App.—Houston [14th Dist.] July 28, 2022)
Findings: “However, by failing to timely file notice of past due findings of fact and conclusions of law, Father waived any complaint on appeal that the trial court failed to file findings in this case.” In the Int. of B.M.B., No. 05-20-00852-CV, 2022 Tex. App. LEXIS 5759, at *8 (Tex. App.—Dallas Aug. 10, 2022)
Jury Answers: “In part, Gulf Coast argues the findings the jury returned on the cluster of issues tied to BMF’s breach of the Agreement (Questions 2, 3, and 5) are in fatal conflict with the jury’s answer to the substantial performance question, Question 7. We agree with Gulf Coast that the findings on the cluster of breach of contract issues that favor Gulf Coast and the substantial performance issue that favors BMF fatally conflict. But Gulf Coast failed to point out the conflict promptly before the jury was discharged when it was before the trial court. It’s settled that a party’s failure to point out a conflict in a jury’s findings to the trial court in a timely manner prevents the party from complaining later “that the conflicting answers undermine the judgment based on the jury’s verdict.” n. 7 n. 7 Valdez, 622 S.W.3d at 787-88; Tex. R. App. P. 33.1(a).” Gulf Coast Fiber Servs., LLC v. BMF Drilling, LLC, No. 09-20-00037-CV, 2022 Tex. App. LEXIS 5254, at *15 (Tex. App.—Beaumont July 28, 2022)
Jury Charge: “But DFPS also makes two other arguments, both of them persuasive. First, DFPS argues Father failed to preserve error because his request regarding the charge was not in writing as required by civil procedure rule 278, citing, as support, In re F.L.R., 293 S.W.3d 278, 281-82 (Tex. App.—Waco 2009, no pet.) (collecting cases and concluding party failed to preserve error regarding court’s refusal to provide instruction). Second, DFPS argues even if Father preserved and demonstrated error, we should affirm because the error was not harmful, as Father has not shown the alleged error probably caused the rendition of an improper judgment under the circumstances, when the jury did not consider conservatorship because of the jury’s predicate and best interest findings and when Father has not challenged them.
We agree. Regardless of whether his request was for submission of a question, definition, or instruction regarding appointment as a managing or possessory conservator, Father has made no showing that he requested submission of a question in writing and in substantially correct wording or that he requested in writing a substantially correct definition or instruction. Thus, under the plain terms of rule 278, we may not deem the trial court’s refusal as a ground for reversal of the judgment. Tex. R. Civ. P. 278; see F.L.R., 293 S.W.3d at 281-82 (stating counsel’s oral request for instruction did not satisfy requirements of rule 278).n. 10 n.10 But see In re M.P., 126 S.W.3d 228, 230 (Tex. App.—San Antonio 2003, no pet.) (concluding party preserved error as to requested jury instruction by making the trial court aware of his request, timely and plainly, with his oral dictation in the record of his exact request and with his repeated objection after closing arguments). F.L.R. suggests M.P. is out of step with most courts’ view. See F.L.R., 293 S.W.3d at 281 (stating, after citing M.P., “[y]et every other court which has applied Woods since Payne was decided has declined to relax the requirement of Rule 278 that a written request must be made.”). To the extent M.P. is in conflict with our opinion in this case, we decline to follow it. ” In the Interest of J.M.H., No. 05-22-00167-CV, 2022 Tex. App. LEXIS 5482, at *12-13 (Tex. App.—Dallas Aug. 2, 2022)
Pleadings: “Freijo did not file any special exceptions to the OAG’s petition. Freijo orally moved for judgment as a matter of law on the basis that the petition did not contain Freijo’s social security number. This was insufficient; it was Freijo’s burden to file a written special exception. See Tex. R. Civ. P. 90; Gonzales, 1993 Tex. App. LEXIS 686, 1993 WL 64135, at *3. Moreover, Freijo failed to secure a ruling on his objection to the pleading. See Patsfield, 2022 Tex. App. LEXIS 2118, 2022 WL 963276, at *11. Thus, Freijo has not preserved for appellate review his challenge to the adequacy of the pleadings. See Peek, 779 S.W.2d at 805; Hartwell, 528 S.W.3d at 765; Retzlaff, 135 S.W.3d at 737. We overrule Freijo’s first issue.” In the Int. of L.A.F., No. 14-21-00046-CV, 2022 Tex. App. LEXIS 5532, at *6 (Tex. App.—Houston [14th Dist.] Aug. 4, 2022)
Special Appearance: “Plummer argues that Witty waived its special appearance because it filed a motion to dismiss in federal court after filing its special appearance in state court. We hold that Witty did not waive its special appearance.
First, Witty complied with Rule 120a by filing its special appearance prior to any of its other pleadings. See Tex. R. Civ. P. 120a(1) ( special appearance must be “filed prior to motion to transfer venue or any other plea, pleading or motion”);….Other than its special appearance, Witty did not file any pleas, pleadings, or motions in state court. On, October 11, 2021, six days after filing its special appearance, Witty removed the case to federal court and filed a motion to dismiss under Rule 12(b)(2) for lack of personal jurisdiction and under Rule 12(b)(6) for failure to state a claim. See Fed. R. Civ. P. 12(b)(2), (b)(6). In its motion to dismiss, Witty first challenged the personal jurisdiction, making the same argument it did in its special appearance in state court—that the court did not have personal jurisdiction over it because it was an out-of-state shipper that did not have minimum contacts with Texas. Witty alternatively argued that if the federal court did have jurisdiction over it, then Plummer failed to plead sufficient facts to state a claim for intentional infliction of emotional distress and negligence.” Witty Yeti, LLC v. Plummer, No. 04-22-00075-CV, 2022 Tex. App. LEXIS 5479, at *8-9 (Tex. App.—San Antonio Aug. 3, 2022)
Special Appearance: “Because the Koch Defendants sought affirmative relief from the trial court and proceeded to argue the special exceptions at the December 9 hearing before the trial court “heard and determined” the special appearances, we agree with Triten and IAG that the Koch Defendants violated the due-order-of-hearing requirement of Rule 120a(2). As noted above, Rule 120a requires strict compliance and mandates that a special appearance motion “shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” Tex. R. Civ. P. 120a(2) (emphasis added); ….By choosing to have their special exceptions, which sought affirmative relief in the form of striking or dismissing causes of action on non-jurisdictional grounds, heard before a determination on their special appearances, the Koch Defendants violated the due-order-of-hearing requirement and entered a general appearance.” Int’l All. Grp. v. Koch Indus., No. 01-20-00832-CV, 2022 Tex. App. LEXIS 5404, at *16-17 (Tex. App.—Houston [1st Dist.] Aug. 2, 2022)
That’s all for now. I’ll try to get this last week’s stuff done and uploaded in the not too distant future.