January 1, 2022
Dearly Beloved:
Happy New Year! I hope this turns out to be your Best Year Yet!
Table of Contents
You have to comply with other pertinent rules–and even if the court of appeals previously ruled for you before remanding, you have to raise law of the case in your summary judgment response
Summary Judgment
Immateriality of a jury finding can first be raised in a motion for JNOV
Your complaint must be timely
Expert
While I won’t profile them here, opinions for the last few weeks reaffirmed that you must make complaint about the following in the trial court
Affirmative Defenses
Attorney
Continuance
Discovery
Legal and Factual Sufficiency
Evidence
Evidence
Evidence
Judgment
Blurbs
You have to comply with other pertinent rules–and even if the court of appeals previously ruled for you before remanding, you have to raise law of the case in your summary judgment response:
Summary Judgment: “The Youngs argue the trial court nonetheless erred because our determination in the first appeal that a fact [*19] issue existed precluding summary judgment on the Youngs’ professional negligence claim based on the allegation Day failed to convey a $200,000 settlement offer to the Youngs is law of the case. The Youngs did not preserve this issue for appeal and thus we cannot consider it.
As a prerequisite to presenting a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). In the context of summary judgments, a nonmovant must present any issues that would defeat the movant’s entitlement to summary judgment expressly in their written response. ….Any issues, except legal sufficiency, not expressly presented by the nonmovant to the trial court in a written response may not be considered as grounds for reversal on appeal. …. see also Tex. R. App. P. 33.1(a). The failure to present an issue to defeat summary judgment in the trial court waives the issue on appeal. ….Because the Youngs [*20] did not present their law-of-the-case argument in their response to Day’s motion for summary judgment, they waived the argument on appeal……” Young v. Dwayne R. Day, P.C., No. 01-19-00956-CV, 2021 Tex. App. LEXIS 10146, at *18-20 (Tex. App.—Houston [1st Dist.] Dec. 28, 2021)
Immateriality of a jury finding can first be raised in a motion for JNOV:
Jury Finding: “In part, the Manns argue the jury’s findings on the Robleses intentional infliction of emotional distress claims are immaterial because one or more other tort theories was available (and submitted) to the jury in the trial on theories offering remedies for the conduct that was at issue in the trial.n. 27 n. 27 The Manns preserved this issue for our review by raising it in their post-verdict motion for judgment notwithstanding the verdict. See BP. Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402 (Tex. 2017) (noting the appellant preserved its complaint about the immateriality of a finding by raising it in a post-verdict motion for judgment notwithstanding the verdict). See Tex. R. App. P. 33.1(a)(1) (Preservation; How Shown); Tex. R. Civ. P. 301 (Judgments).” Mann v. Robles, No. 09-19-00368-CV, 2021 Tex. App. LEXIS 10193, at *14 (Tex. App.—Beaumont Dec. 30, 2021)
Your complaint must be timely:
Expert: “In its motion for new trial, KMPC finally asserted that Little’s and Hendrickson’s testimony was admissible because the factual disputes between the experts went to the weight and credibility, rather than [*27] the admissibility, of the evidence. However, “[w]hile a motion for new trial may preserve some errors, standing alone, it cannot preserve error related to the admission or exclusion of evidence.” Bank of Am., N.A. v. Ochuwa, No. 01-19-00368-CV, 2020 Tex. App. LEXIS 7181, 2020 WL 5269416, at *4 n.3 (Tex. App.—Houston [1st Dist.] Sept. 3, 2020, no pet.) (mem. op.) ….KMPC, therefore, did not preserve for our review its complaint that the trial court improperly excluded Little’s and Hendrickson’s testimony because the differences between the experts’ opinions went to the weight and credibility of the evidence, rather than to its admissibility. See Tex. R. App. P. 33.1(a); …..
KMPC proposes, however, that the trial court erred because it determined, based on its interpretation of Section 23.175, that KMPC’s objections to the Appraisal District’s experts went to the weight and credibility of the evidence while the Appraisal District’s objections to KMPC’s experts went to admissibility. Again, KMPC did not [*28] timely object to this alleged disparity in the trial court. See Tex. R. App. P. 33.1(a). Regardless, even if KMPC had preserved this complaint, we do not agree that the record shows such a disparity.” Kinder Morgan Prod. Co., LLC v. Scurry Cty. Appraisal Dist., No. 11-20-00258-CV, 2021 Tex. App. LEXIS 10222, at *26-28 (Tex. App.—Eastland Dec. 30, 2021)
All for now, folks. Enjoy the rest of the weekend, and hit next week at a dead run!
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com