November 27, 2021
Dearly Beloved:
Table of Contents
BEWARE THE UNRECORDED, INFORMAL CHARGE CONFERENCE. You must make your complaint in the trial court–and the record must show that you did.
Jury Charge
Your complaint must be timely (which sometimes involves complying with the pertinent rules)
Affirmative Defense (Limitations)
Damages
Visiting Judge
And this week is monumental, historically, in that I think it marks the first week in over eight years when not a single civil opinion held that a complaint was not preserved because it was not raised below. That is fitting for the week of Thanksgiving in this year.
Blurbs
BEWARE THE UNRECORDED, INFORMAL CHARGE CONFERENCE. You must make your complaint in the trial court–and the record must show that you did:
Jury Charge: “Here, while the trial court was fully aware of appellants’ requested definition, appellants did not object to the inclusion of the definition provided by appellee. [fn omitted] See Tex. R. Civ. P. 273, 274; ….Old American failed to object to the inclusion of appellee’s definition of tender and alert the trial court as to why it was erroneous or why its definition was a more accurate statement of the law in this case. See Meyers, 600 S.W.3d at 423. On appeal appellants argue that the definition submitted was not an accurate statement of the law because in certain circumstances “tender” does not mean the actual production of funds and cites to cases supporting that contention. However, the record does not reflect that such an argument was made to the trial court so as to allow the trial court to correct any error in the charge prior to reading the charge to the jury. The proposed definition provided by appellant did not apprise the trial court of the purported problems with the charge that appellants now assert on appeal….Thus, we agree with appellee that appellants have not preserved their complaint of jury charge error with regard to the definition of the term “tender” that was submitted to the jury.
Appellants argue that the trial court did not allow Old American to voice its objection and that the prior discussion was not on the record because it occurred during the informal jury charge conference. While this may be the case, Old American did not preserve the error that it now asserts on appeal because we cannot ascertain from the record whether the arguments made on appeal were made to the trial court prior to the charge being read to the jury. See Tex. R. App. P. 33.1(a)(1)(A);” Mines v. Murphy, No. 14-18-00800-CV, 2021 Tex. App. LEXIS 9444, at *5-7 (Tex. App.—Houston [14th Dist.] Nov. 23, 2021)
Your complaint must be timely (which sometimes involves complying with the pertinent rules):
Affirmative Defense (Limitations): “A complaint that a cause of action is barred by the statute of limitations is an affirmative defense that must be pled. See Tex. R. Civ. P. 94….Here, the Peaces raised several affirmative defenses in their answer, including a statute of limitations defense with respect to the foreclosure action,10 which we addressed above. However, we find that the answer did not raise the issue of limitations as to the Bank’s remaining claims. The trial court made no finding on limitations although it entered a general conclusion of law that “[a]ll affirmative defenses . . . [were] denied.” On this record, we find that the Peaces neither raised nor secured express findings on the issue of statute [*22] of limitations with respect to the Bank’s remaining claims. Instead, they waited to file a motion for new trial to assert arguments that the statute of limitations barred the Bank’s remaining claims, but those arguments were untimely.” Peace v. PNC Bank Nat’l Ass’n, No. 06-20-00097-CV, 2021 Tex. App. LEXIS 9433, at *21-22 (Tex. App.—Texarkana Nov. 22, 2021)
Damages: “Yelderman’s ….fourth issue asserts that the trial court erred in apportioning Landmark’s damages without evidence of any other owner’s interest. ‘Generally, to preserve a complaint for appellate review, the complaining party must present the complaint to the trial court by timely request, objection, or motion.’ Amerjin Co., LLC v. Ashby LLP, No. 01-18-00231-CV, 2020 Tex. App. LEXIS 2651, 2020 WL 1522823, at *11 (Tex. App.—Houston [1st Dist.] Mar. 31, 2020, pet. denied) (mem. op.) (citing TEX. R. APP. P. 33.1(a)). ‘A party’s argument on appeal must comport with the complaint made in the trial court.’ Id. (citing Patel v. Hussain, 485 S.W.3d 153, 174 (Tex. App.—Houston [14th Dist.] 2016, no pet.)). ‘The complaint raised in the trial court must state the grounds for the ruling sought ‘with sufficient specificity to make the trial court aware of the complaint’’ Id. (citing Tex. R. App. P. 33.1(a); Hussain, 485 S.W.3d at 174; Chappell Hill Bank v. Lane Bank Equip. Co., 38 S.W.3d 237, 246-47 (Tex. App.—Texarkana 2001, pet. denied) (‘[J]udicial economy requires that issues be raised first in the trial court in order to spare the parties and the public the expense of a potentially unnecessary appeal.’)).
Yelderman did not assert that the trial court erred in apportioning Landmark’s damages without evidence of any other owner’s interest in his supplemental motion for reconsideration of the trial court’s order granting Landmark’s motion to withdraw funds, or at any hearing related to reconsidering [*10] that order. Further, we cannot say that this issue was fairly included in the issues Yelderman did assert in the trial court. See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017). Consequently, we find that Yelderman failed to preserve this issue.” Yelderman v. State, No. 06-21-00039-CV, 2021 Tex. App. LEXIS 9431, at *8 (Tex. App.—Texarkana Nov. 22, 2021)
Visiting Judge:“To be timely, an objection to an assigned judge must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier. Tex. Gov’t Code Ann. § 74.053(c) (West 2013)….An objection to a judge assigned under chapter 74 is timely if filed before the very first hearing or trial in the case, including pretrial hearings, over which the assigned judge is to preside—without regard to the terms of the particular assignment order…..Here, J.H.K. filed his original answer, which contained the objection to Respondent’s assignment, on September 16. [fn omitted] This objection came long after Respondent was assigned to the case on January 11 and had already conducted a hearing in the case. Accordingly, J.H.K.’s objection was untimely, and Respondent did not abuse her discretion by overruling J.H.K.’s objection …Thus, J.H.K. has not satisfied his burden of establishing both prerequisites to mandamus relief.” In re J.H.K., No. 12-21-00153-CV, 2021 Tex. App. LEXIS 9475, at *5-7 (Tex. App.—Tyler Nov. 23, 2021)
And this week is monumental, historically, in that I think it marks the first week in over eight years when not a single civil opinion held that a complaint was not preserved because it was not raised below. That is fitting for the week of Thanksgiving in this year.
Y’all take good care and enjoy the remainder of the weekend.
Yours,
Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com