April 17, 2021
Dear Friends:
Table of Contents
The Supreme Court does not often weigh in on error preservation, but I want to thank my friend David Gunn for bringing to my attention that it did so twice this week, in the same case. The Court addressed an objection concerning an expert witness’s failure to address the unreasonableness of a danger (in addressing this issue, the Supreme Court also showed that sometimes a legal sufficiency challenge might provide a backdoor to complain), and it also addressed a jury charge complaint, in which the Court appears to hold that “a defendant must object to both the lack of evidence supporting a claim and an apportionment question predicated on more than one ground of recovery:”
Expert Witness
Jury Charge
You have to comply with the pertinent rules
Summary Judgment
Your complaint must be timely and must be ruled on by the trial court
Venue
Discovery/Continuance
The Blurbs
The Supreme Court does not often weigh in on error preservation, but it did so twice this week–once, concerning an objection concerning an expert witnesses failure to address whether a danger was unreasonable (in which it also showed that sometimes a legal sufficiency challenge might provide a backdoor to complain), and once concerning the jury charge, in which the Court appears to hold that “a defendant must object to both the lack of evidence supporting a claim and an apportionment question predicated on more than one ground of recovery.”
Expert Witness: “Expert testimony is not admissible when the underlying methodology, technique, or foundational data the expert uses is unreliable or when the testimony is not relevant to an issue the jury must decide. An objection to the admissibility of expert testimony must be sufficiently timely and specific to allow the court to exercise its role as the gatekeeper of the evidence. [citing Rule 33.1]
Before trial, Emerson and Fusite moved to exclude Russell’s testimony on several grounds, but none challenged Russell’s opinion about the compressor’s dangerousness. In this Court, Emerson and Fusite now argue that Russell failed to consider whether the compressor was unreasonably dangerous. They point to his pretrial affidavit in which, they contend, he does not discuss whether the danger associated with the compressor was an unreasonable one. This complaint does not comport with any of the challenges that Emerson and Fusite presented to the trial court. The trial court had no opportunity to consider whether Russell “used the wrong test” as Emerson and Fusite advocate now. Accordingly, this claimed error in the admission of expert testimony is not preserved for our review.
We nevertheless examine this argument in the context of Emerson and Fusite’s legal-sufficiency challenge. In no-evidence challenges in their motions for directed verdict and judgment notwithstanding the verdict, they urged that the 600 series was not unreasonably dangerous. We uphold the jury’s finding if some evidence supports it.” Emerson Elec. Co. v. Johnson, No. 18-1181, 2021 Tex. LEXIS 306, at *12 (Apr. 16, 2021) (footnotes omitted)
Jury Charge: “When a jury finds liability based on alternative claims, we may affirm on any legally valid ground of recovery that affords complete relief. In this case, in addition to finding Emerson and Fusite liable for a defective design, the jury also found Emerson liable for a marketing defect: that it failed to adequately [*28] warn of the risk of terminal venting. Both grounds for recovery afford the same relief. As we have rejected the challenges to Johnson’s design-defect claim, and recovery on his marketing-defect claim would not afford greater relief, we need not address Emerson’s challenges to the jury’s marketing-defect finding.
Citing Romero v. KPH Consolidation, Inc. in their reply brief, Emerson and Fusite nonetheless urge that we address Emerson’s challenges to the marketing-defect finding because the trial court submitted a single question allocating the percentage attributable to Fusite, Emerson, and Johnson for having “caused or contributed to cause the occurrence or injury.” The jury’s apportionment of responsibility, they argue, might be different based on the type of liability found.
The touchstone for whether an objection preserves an issue for appeal is whether the litigant timely and plainly made the trial court aware of its complaint and obtained a ruling. In Romero, we expressly reserved the question of whether a defendant must object to both the lack of evidence supporting a claim and an apportionment question predicated on more than one ground of recovery. In that case, the defendants objected that the trial court improperly had predicated the apportionment question on an invalid ground.
In this case, Emerson and Fusite, which are affiliated entities, did not. Johnson’s proposed charge originally separated the apportionment question for Emerson’s marketing-defect liability and Emerson’s design-defect liability, but Emerson objected and insisted they be combined. Emerson never made the trial court timely and plainly aware of any Casteel-type error in the apportionment question. Having found the evidence sufficient to support one ground of recovery that affords complete relief, we decline to address an alternative ground.” Emerson Elec. Co. v. Johnson, No. 18-1181, 2021 Tex. LEXIS 306, at *27-29 (Apr. 16, 2021)
You have to comply with the pertinent rules.
Summary Judgment: “Hudson did not raise her argument that the trial court incorrectly applied the legal principles of premises liability rather than the principles of ordinary negligence in her summary-judgment responses. A nonmovant must expressly present to the trial court any reasons for avoiding the movant’s right to summary judgment. . . . see Tex. R. Civ. P. 166a(c) . . . .Because she did not raise this argument in her summary-judgment responses, Hudson failed to preserve this issue for our review, and we cannot consider it on appeal as a ground for reversal.” Hudson v. Mem’l Hosp. Sys., No. 01-19-00300-CV, 2021 Tex. App. LEXIS 2806, at *12-13 (Tex. App.—Houston [1st Dist.] Apr. 15, 2021)
Your complaint must be timely, and it must be ruled on by the trial court.
Venue: “Regarding Appellant’s second issue, we hold the motion to transfer venue is not properly before this Court because it was not filed prior to entry of the Agreed Final Judgment and thus not considered nor ruled upon by the trial court. Tex.R.App.P. 33.1. Appellant’s second issue was not preserved, and is overruled. Id.” Cquentia Series Holdings v. Luminex Corp., No. 08-20-00033-CV, 2021 Tex. App. LEXIS 2892, at *13 (Tex. App.—El Paso Apr. 16, 2021)
Discovery/Continuance: “Appellant claimed throughout her response to Appellee’s motion that Appellee failed to produce a number of documents requested in written discovery, the contents of which would allegedly illustrate a fact issue. Appellant sought a continuance of the summary judgment hearing to conduct additional discovery, which the trial court never ruled upon. However, the record does not reflect any effort by Appellant to compel responses to discovery, and no rulings by the trial court to that effect. A motion for discovery sanctions was filed, but not ruled upon. Furthermore, on appeal, Appellant does not complain about the trial court’s failure to rule upon the motion for continuance or the motion for sanctions, although her brief does mention Appellee’s failure to produce requested documents. To the extent Appellant claims additional time to conduct discovery would yield evidence creating a fact issue, her complaint is waived. See TEX.R.APP.P. 33.1 (to preserve error, a party must make a timely request, objection, or motion stating the grounds with sufficient specificity to make the trial court aware of the complaint).” Sanchez v. Barragan, No. 08-20-00027-CV, 2021 Tex. App. LEXIS 2839, at *11-12 (Tex. App.—El Paso Apr. 14, 2021)
All for now, gang. I hope this helps. Y’all stay safe and well.
Yours,
Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com