July 17, 2021
Dear Friends:
Well, owing to the pesky day job of practicing law, I fell several weeks’ behind on error preservation decisions. I’ll try to catch up this next week. Here is the first installment, for the cases in the week ending June 26:
Table of Contents
The Supreme Court reminds of the five tools to preserve a legal sufficiency complaint concerning a jury trial–and the sole way to preserve a factual sufficiency complaint
Legal and Factual Sufficiency
The following case reminds us of the importance of preserving a complaint about the trial court’s comments
Trial Judge
There are lots of complaints you can preserve in a motion for new trial
Dismissal
Just because you filed the original lawsuit does not necessarily mean that doing so waives your special appearance as to a counterclaim filed against you–if the counterclaim is severable
Personal Jurisdiction
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Evidence
Hearing(Notice)
Pleadings
Pleadings
Standing
Witness
Blurbs
The Supreme Court reminds of the five tools to preserve a legal sufficiency complaint concerning a jury trial–and the sole way to preserve a factual sufficiency complaint:
Legal and Factual Sufficiency: “After a jury trial, a legal-sufficiency challenge may be preserved in the trial court in one of the following ways: (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion for new trial. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985). Preservation of a factual-sufficiency challenge requires a motion for new trial. M.S., 115 S.W.3d at 547 (citing Tex. R. Civ. P. 324(b)(2)).” In the Interest of D.T., No. 20-0055, 2021 Tex. LEXIS 625, at *21 n.8 (June 25, 2021)
The following case reminds us of the importance of preserving a complaint about the trial court’s comments:
Trial Judge: “By her third issue, R.M. argues that termination under any grounds would be improper due to the “conduct of the trial court during the termination hearing.” She contends the trial court “made multiple remarks towards [her] which would lead all reasonable persons to believe that the trial court was not being impartial” and that “at times the trial court was actively advocating against [her] in a breach of the duties of the trial court.” Though R.M. is entitled under the United States and Texas Constitutions to a fair and unbiased trial, even constitutional complaints may be waived by failure to comply with rules regarding preservation of error. ..there is a narrow exception to error-preservation rules for certain “fundamental” errors, including “those instances in which error directly and adversely affects the interest of the public generally, as that interest is declared by the statutes or Constitution of our State.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006)….In some circumstances, a complaint regarding judicial conduct during a bench trial may also be raised for the first time on appeal….The trial court was entitled to ask questions to clarify testimony and to elicit evidence “that has not otherwise been brought out.” See Born, 857 S.W.2d at 957….Some of the trial court’s remarks, on the other hand, were clearly inappropriate….That said, the claimant bears the burden to explain how any comments made by the trial judge were incurable or would excuse the claimant’s failure to preserve error….We conclude R.M. has failed to satisfy that burden. R.M. does not address preservation of error in her brief; in particular, she does not argue that preservation of error was unnecessary because the error was “fundamental” or under any other legal rationale. See Tex. R. App. P. 38.1(i). Moreover, considering the entire record, we cannot say that these instances of improper conduct reveal a “deep-seated favoritism or antagonism that would make fair judgment impossible.” See Liteky, 510 U.S. 540 at 555. In particular, unlike in L.S., the record here does not reveal that the trial court developed any antagonism or bias against R.M. based on prior proceedings in an unrelated case.” In re A.T.M., No. 13-21-00008-CV, 2021 Tex. App. LEXIS 5064, at *43 (Tex. App.—Corpus Christi June 24, 2021)
There are lots of complaints you can preserve in a motion for new trial:
Dismissal: “In her second issue, appellant argues the trial court erred in dismissing her alternative claims for breach of contract, unjust enrichment, quantum meruit, quantum valebant, constructive trust, and equitable turnover for fifty percent of the property because appellee did not include them in his plea to the jurisdiction, did not submit any proof negating them at the hearing, and because those claims were included in her amended petition and were still pending at the time of the final order. Appellee responds with two arguments but cites no authorities in support. First, appellee argues appellant failed to preserve error on this issue. Second, appellee argues that, because appellant presented no evidence on her alternative claims in the hearing, the trial court properly dismissed appellant’s alternative claims by granting his motion for directed verdict. We disagree with appellee’s first argument because [*26] appellant raised this issue in the trial court by including it in her motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 33.1(a)(1).” Umana v. Rodriguez-Ramos, No. 05-20-00238-CV, 2021 Tex. App. LEXIS 4928, at *25-26 (Tex. App.—Dallas June 21, 2021)
Just because you filed the original lawsuit does not necessarily mean that doing so waives your special appearance as to a counterclaim filed against you–if the counterclaim is severable:
Personal Jurisdiction: “In response to Plaintiffs’ counterclaim for the trust modification, JPMorgan filed a special appearance contesting the trial court’s exercise of personal jurisdiction over it regarding that specific claim. This was filed before any other pleading after Foster filed the trust modification counterclaim. JPMorgan argues that although it sought declaratory relief under the initial lawsuit, the trust modification is a severable action under 120a, and therefore, it timely filed its special appearance. See Tex. R. Civ. P. 120a. Foster expressly advocates for and admits in Plaintiffs’ Rule 41 Motion to Sever Application to Confirm Final Arbitration Award filed in this cause that the Counterclaim for Trust [*8] Modification is a severable action stating “[p]laintiffs’ [a]pplication to confirm the Final Award under the Texas Arbitration Act is also separate and distinct from their Counterclaim for Trust Modification under the Texas Property Code . . . [p]laintiffs’ claim for trust modification was not arbitrated but rather for [the trial court] to decide in the first instance.” See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2002) (citations omitted) (stating a judicial admission must be “‘clear, deliberate, and unequivocal[,] occurs when an assertion of fact is conclusively established in live pleadings, making the introduction of other pleadings or evidence unnecessary, [and] relieves [an] adversary from making proof of the fact admitted but also bars the party himself from disputing it.'”). Additionally, actions of a limited partner and the administration of a trust are “distinct concepts[,]” supporting the severability of the claims under Rule 120a. Gonzalez v. De Leon, No. 04-14-00751-CV, 2015 Tex. App. LEXIS 8940, 2015 WL 5037396, at *7 (Tex. App.—San Antonio Aug. 26, 2015, pet. dism’d) (mem. op.) (explaining that “there is no evidence to establish that the administration of the . . . Trust affects . . . the Alexander the Limited Partnerships”); see also Tex. R. Civ. P. 120a. Therefore, we hold that the trust modification claim is a severable action, and that JPMorgan did not waive its challenge to [*9] the trial court’s exercise of personal jurisdiction over it by appearing in and seeking declaratory relief in the underlying arbitration suit.” JPMorgan Chase Bank, N.A. v. Campbell, No. 09-20-00161-CV, 2021 Tex. App. LEXIS 5001, at *7-9 (Tex. App.—Beaumont June 24, 2021).
All for now. Hopefully more in the next two or three days.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com