July 17-24, 2021
Dear Friends:
I haven’t made much headway in working through the backlog, but I will go back and catch the cases from June 26 through July 17. In the meantime, here is this week’s collection:
Table of Contents
One court provided a thorough discussion of two preservation requirements, and we’ll start with the discussion about how a complaint has to be timely under other pertinent rules and statutes (and another case that held the same)
Arbitration
Findings of Fact
Jury Waiver
The other error preservation ruling in the Alikhan case reminds us that we don’t preserve a complaint if we do not make the trial judge aware of it–and that an implicit ruling requires proof of such trial court awareness (so make sure to get an express ruling, so there is no question)
Arbitration
If you request a jury question on the discovery rule, you will have preserved a complaint about the submission of the same
Jury Charge
You preserve a complaint about the legal sufficiency of the evidence to support a jury finding by raising that complaint in a motion to disregard the finding
In a non-jury trial, you may first present a legal insufficiency complaint on appeal
Attorney’s Fees
Never forget–you have to have a record in order to preserve your complaint about an exclusion of a witness
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Arbitrator
Attorney’s Fees (Presentment)
Fines
Blurbs
One court provided a thorough discussion of two preservation requirements, and we’ll start with the discussion about how a complaint has to be timely under other pertinent rules and statutes (and another case that held the same):
Arbitration: “Here, the record does not show that Osman’s complaints at issue in this appeal were timely made. See Tex. R. App. P. 33.1(a)(1). The October 30, 2018 application to vacate the arbitrator’s amended award—the only place in the record where the complaints were putatively raised to the trial court—was filed under subsection 171.088(a)(1) of the Texas Civil Practice and Remedies Code. See [*10] Tex. Civ. Prac. & Rem. Code § 171.088(a)(1) (providing for vacatur of arbitration award if “award was obtained by corruption, fraud, or other undue means”); Hoskins v. Hoskins, 497 S.W.3d 490, 494-96 (Tex. 2016) (describing section 171.088 as “exclusive” and holding that “a party may avoid confirmation only by demonstrating a ground expressly listed in section 171.088”). The specific complaint was that the award was obtained by undue means because the family law arbitration agreement and rules “constituted essentially an adhesion contract” and “was procedurally unconscionable” by depriving Osman of “his right to have the arbitration proceedings recorded” when “he had no choice but to accept.” The application states that it was timely in compliance with subsection 171.088(b) because “it is being made not later that [sic] the 90th day after the date of delivery of a copy of the award to Osman.” See Tex. Civ. Prac. & Rem. Code § 171.088(b). But subsection 171.088(b) also states that, in contrast to applications made under subsections (a)(2)-(4), “[a] party must make an application under Subsection (a)(1) not later than the 90th day after the date the grounds for the application are known or should have been known.” Id. Here, the application was filed more than 90 days from July 18—the date Osman was presented with the alleged “adhesion contract” that he “had no choice but to accept”—and was therefore untimely as to the complaints [*11] raised “under Subsection (a)(1).”” Alikhan v. Alikhan, No. 03-19-00515-CV, 2021 Tex. App. LEXIS 5832, at *9 (Tex. App.—Austin July 22, 2021)
Findings of Fact: “We agree with Moreno that the trial court should not have placed the findings of fact in the judgment….However, because Moreno failed to file his “Notice of Past Due Findings of Fact and Conclusions of Law” to preserve this issue for appeal, we conclude this error is waived. See Tex. R. Civ. P. 297;…. We recognize that Moreno filed an “amended request for findings of fact and conclusions of law,” however, this “amended request” did not comply with rule 297 for the purposes of preservation. See Tex. R. Civ. P. 297.” Moreno v. Ocadiz, No. 13-19-00116-CV, 2021 Tex. App. LEXIS 5828, at *8-9 (Tex. App.—Corpus Christi July 22, 2021)
Jury Waiver: “Upshaw argues that Lacado waived its right to a jury trial on its breach-of-contract claim because Upshaw’s FDD included an express jury waiver: “[T]he parties also agree to waive their respective rights to trial by jury, except where prohibited by federal or state law.” However, Upshaw never objected to Lacado’s request for a jury trial or otherwise raised the alleged contractual bar until he moved the trial court to disregard the jury’s verdict. This is too late to preserve the argument that Lacado contractually waived its right to a jury trial. See Tex. R. App. P. 33.1(a);” Upshaw v. Lacado, LLC, No. 02-20-00031-CV, 2021 Tex. App. LEXIS 5858, at *13 (Tex. App.—Fort Worth July 22, 2021)
The other error preservation ruling in the Alikhan case reminds us that we don’t preserve a complaint if we do not make the trial judge aware of it–and that an implicit ruling requires proof of such trial court awareness (so make sure to get an express ruling, so there is no question):
Arbitration: “Additionally, even if the application had been timely filed, the record does not demonstrate that error has been preserved. HN3 Preservation also requires one of three things: an express ruling by the trial court; an implicit ruling by the trial court; or a refusal to rule by the trial court, coupled with an objection to that refusal by the complaining party. Tex. R. App. P. 33.1(a)(2). The record contains neither an objection by Osman to a refusal to rule, if any, by the trial court nor an express ruling on Osman’s application to vacate the arbitrator’s amended award. As to an implicit ruling, “[a]n essential element of an implicit ruling is awareness by the trial judge of the request or motion that is supposedly being ruled on.”[citation omitted]….Johnson v. Mohammed, No. 03-10-00763-CV, 2013 Tex. App. LEXIS 5808, 2013 WL 1955862, at *4 (Tex. App.—Austin May 10, 2013, pet. dism’d w.o.j.) (mem. op.) (collecting cases [*12] for proposition that “[a] trial court is not required to consider or rule on a motion that has not been called to its attention”); cf. Cruz, 364 S.W.3d at 829, 831 (noting that error preservation inquiry “focuses on the trial court’s awareness of, and opportunity to remedy, the problem” and that “trial court awareness is the key”). In this case, the record does not show that the trial court was aware of Osman’s application to vacate the arbitrator’s award or that Osman set the application for a hearing or took any other action to call the application to the trial court’s attention. We therefore cannot infer an implicit ruling on the application.” Alikhan v. Alikhan, No. 03-19-00515-CV, 2021 Tex. App. LEXIS 5832, at *11-12 (Tex. App.—Austin July 22, 2021)
If you request a jury question on the discovery rule, you will have preserved a complaint about the submission of the same:
Jury Charge: “Lacado argues that because Upshaw did not request a jury question on the statute of limitations or on the date the first agreement was breached, he waived his limitations argument. See, e.g., Tex. R. Civ. P. 278-79;….This contention is belied by the record. Upshaw requested five jury questions regarding when Lacado’s breach-of-contract claim accrued: “By what date should Lacado, in the exercise of reasonable diligence, have discovered” each of Upshaw’s specified breaches. The trial court denied each request. As we have noted, the charge included a question regarding when Lacado should have discovered Upshaw’s breaches of the first agreement, and Upshaw now challenges the jury’s answer to that question.” Upshaw v. Lacado, LLC, No. 02-20-00031-CV, 2021 Tex. App. LEXIS 5858, at *18 (Tex. App.—Fort Worth July 22, 2021)
You preserve a complaint about the legal sufficiency of the evidence to support a jury finding by raising that complaint in a motion to disregard the finding:
Legal Sufficiency: “ As we have noted, the charge included a question regarding when Lacado should have discovered Upshaw’s breaches of the first agreement, and Upshaw now challenges the jury’s answer to that question. By raising this issue in his motion to disregard the jury’s findings and in his motion for new trial, Upshaw preserved his argument directed to the legal sufficiency of the evidence to support the jury’s accrual finding.” Upshaw v. Lacado, LLC, No. 02-20-00031-CV, 2021 Tex. App. LEXIS 5858, at *18 (Tex. App.—Fort Worth July 22, 2021)
In a non-jury trial, you may first present a legal insufficiency complaint on appeal:
Attorney’s Fees: “Generally, to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the context. Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). This rule extends to complaints regarding error in awarding attorney’s fees….However, when there is no jury trial, complaints regarding the sufficiency of the evidence supporting attorney’s fees may be raised for the first time on appeal. Tex. R. App. P. 33.1(d);….
Here, Bishara contests the sufficiency of the evidence supporting the attorney’s fees by asserting that the attached affidavit is conclusory and insufficient to support the award. Accordingly, we may review whether the attorney’s fees awarded were reasonable in light of the evidence presented. See Tex. R. App. P. 33.1(d);” Bishara v. Tex. Health Harris Methodist Hosp. Fort Worth Inc., No. 02-20-00316-CV, 2021 Tex. App. LEXIS 5859, at *12 (Tex. App.—Fort Worth July 22, 2021)
Never forget–you have to have a record in order to preserve your complaint about an exclusion of a witness:
Expert Witness: “On appeal, Neutze asserts the erroneous exclusion of testimony resulted in rendition of an improper judgment. We review exclusion of evidence for abuse of discretion….A trial court abuses its discretion where it acts without reference to guiding principles or rules….To obtain a reversal of a judgment based on the erroneous exclusion of evidence, an appellant must show (1) the trial court’s ruling was in error, and (2) the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1); ….To show harm, the excluded evidence must be controlling on a material issue and not cumulative of other evidence.Parties may waive their right to a record….Absent a record of trial proceedings, we must presume that sufficient evidence supports the trial court’s judgment….Neutze apparently waived her right to a trial record.” Neutze v. Tex. Farmers Ins. Co., No. 04-20-00373-CV, 2021 Tex. App. LEXIS 5778, at *4 (Tex. App.—San Antonio July 21, 2021)
All for now. Y’all take good care.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com