February 20, 2020
Dear All:
I hope all of you came through this last week alright, and that you already have water, power, and needed repairs, or that they come your way in the very near future.
Table of Contents
Remember-you can devise new arguments on appeal to support complaints you preserved in the trial court (and, if you’re not complaining about the trial court’s ruling, unless specific rules require otherwise, TRAP 33.1 may not impinge your ability to say new stuff to support the trial court’s ruling
Timeliness of Motion
You must comply with pertinent rules and statutes
Arbitration
Affirmative Defense
Your complaint on appeal must be the complaint you raised at trial
Expert
You must obtain a ruling on your complaint, and in some instances an implicit ruling will occur
Continuance
The Blurbs
Remember-you can devise new arguments on appeal to support complaints you preserved in the trial court (and, if you’re not complaining about the trial court’s ruling, unless specific rules require otherwise, TRAP 33.1 may not impinge your ability to say new stuff to support the trial court’s ruling:
Timeliness of Motion: “STYSA also argues that Gordon did not assert that the motion was untimely and therefore failed to preserve this issue on appeal by not raising it before the trial court. But preservation concerns a “prerequisite to presenting a complaint for appellate review.” Tex. R. App. P. 33.1(a). Here, Gordon, as cross appellee, is not complaining of the trial court’s action, he is seeking to affirm the trial court’s action. Moreover, the trial court expressly addressed this issue in its order when it denied STYSA’s motion as “not made pursuant to a timely counterclaim,” and Gordon could raise arguments on appeal to support affirming the trial court’s decision based on this issue. See Greene v. Farmers Ins. Exch., 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.”).” Gordon v. S. Tex. Youth Soccer Ass’n, No. 03-19-00129-CV, 2021 Tex. App. LEXIS 1246, at *21 n.13 (Tex. App.—Austin Feb. 19, 2021)
You must comply with pertinent rules and statutes:
Arbitration: “Section 171.025(a) provides: “The court shall stay a proceeding that involves an issue subject to arbitration if an order for arbitration or an application for that order is made under this subchapter.” Tex. Civ. Prac. & Rem. Code Ann. § 171.025(a). HN6 “This statute provides on its face that the court shall stay a proceeding. In other words, the stay is not automatic.” In re F.C. Holdings, Inc., 349 S.W.3d 811, 816 (Tex. App.—Tyler 2011, orig. proceeding [mand. denied]). . . . Here, Onesimo failed to make the required predicate requests and seek action from the trial court. First, Onesimo [*13] did not set his motion to compel arbitration for a hearing prior to or contemporaneous with Maricela’s contempt motion. The trial court declined to rule on Onesimo’s motion to compel arbitration because it was not set for a hearing. Second, Onesimo did not object to the contempt proceedings based on section 171.025(a). See Roccaforte, 341 S.W.3d at 923 (recognizing that by failing to object “a party may waive complaints about a trial court’s actions in violation of the stay imposed by section 51.014(b)” of the Texas Civil Practice and Remedies Code). In this case, the record shows the trial court was not given an opportunity to rule on Onesimo’s motion to compel arbitration or to stay the contempt proceedings under section 171.025(a).” In re Medina, No. 04-20-00390-CV, 2021 Tex. App. LEXIS 1193, at *11-13 (Tex. App.—San Antonio Feb. 17, 2021)
Affirmative Defense: “ In their second issue, CKorp and Kalisek contend that a valid contract covering the subject of the dispute—the Fleetwide Credit Application—precluded Tex-Con from recovering on a theory of quantum meruit. . . . A defendant’s failure to plead and prove the affirmative defense of an express contract is a waiver of the defense. See, e.g., Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 502 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (citing Fortune Prod. and Freeman); see also City of El Paso v. Mountain Vista Builders, Inc., 557 S.W.3d 617, 623 (Tex. App.—El Paso 2017, no pet.) (quoting Tex. R. Civ. P. 94 for proposition that “[a] defendant is required to plead affirmative defenses including waiver, estoppel, and ‘any other matter constituting an avoidance or affirmative defense'”). CKorp and Kalisek did plead affirmative defenses, but not the defense that a quantum-meruit claim was barred by an express contract. Appellants’ second issue is overruled.” Kalisek v. Hays City Corp., No. 08-20-00031-CV, 2021 Tex. App. LEXIS 1162, at *6-7 (Tex. App.—El Paso Feb. 12, 2021)
Your complaint on appeal must be the complaint you raised at trial:
Expert: “To preserve an issue for appellate review, a complaining party must make a timely objection during trial. See Ulogo, 177 S.W.3d at 501-02; see Tex. R. App. P. 33.1(a)(1). A complainant should object to the admissibility of expert testimony when ‘a challenge . . . questions the underlying methodology, technique, or foundational data used by [an expert] witness.’ Coastal Transp. Co. v. Crown Cent. Petro. Corp., 136 S.W.3d 227, 229 (Tex. 2004).
Pansky contends that Dr. Turner incorrectly defined behavioral abnormality when suggesting “likely” meant “beyond just a mere possibility.” Yet Pansky never objected to Dr. Turner’s definition at trial. Instead, Pansky objected to the question, “Would it be misleading . . . to put a certain percentage on the likelihood [of reoffending]?” Because Pansky failed to object to Dr. Turner’s definition, he did not preserve the issue and waived the complaint on appeal.” In re Pansky, No. 01-20-00110-CV, 2021 Tex. App. LEXIS 1221, at *7 (Tex. App.—Houston [1st Dist.] Feb. 18, 2021)
You must obtain a ruling on your complaint, and in some instances an implicit ruling will occur:
Continuance: “Rule 33.1 provides that an implicit ruling may be sufficient to present an issue for appellate review. See Tex. R. App. P. 33.1. When a court fails to rule on a motion but takes other action inconsistent with what the motion requests, the motion is implicitly overruled. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (recognizing an implicit ruling on a request for a bench warrant where the trial court proceeded to trial without issuing a bench warrant or issuing a ruling on the request); Conely v. Tex. Bd. of Criminal Justice, No. 03-11-00094-CV, 2012 Tex. App. LEXIS 4354, at **13-14 (Tex. App.—Austin May 30, 2012, pet. denied) (mem. op.) (by granting the dispositive motion to dismiss without ordering the defendants to answer discovery, the district court implicitly denied the motion to compel); Stauder v. Nichols, No. 01-08-00773-CV, 2010 Tex. App. LEXIS 4369, at **12-13 (Tex. App.—Houston [1st Dist.] June 10, 2010, no pet.) (mem. op.) (‘[B]y proceeding to submission of the motion for summary judgment as scheduled, the trial court necessarily implicitly denied appellants’ request for a continuance.’). The [*23] record in this case supports an inference that, by proceeding with the submission of the motions for summary judgment as scheduled and by granting the motions for summary judgment, the trial court necessarily implicitly denied Appellant’s request for a continuance and motion to compel.” Suniverse, LLC v. Universal Am. Mortg. Co., LLC, No. 09-19-00090-CV, 2021 Tex. App. LEXIS 1240, at *22-23 (Tex. App.—Beaumont Feb. 18, 2021)
All for now. Y’all stay safe, well, healthy, and warm.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com