February 12, 2022
Dearly Beloved:
Table of Contents
Some might argue that a failure to preserve a complaint might deprive the Supreme Court of jurisdiction over a case involving that complaint. The Supreme Court had no problem rejecting that argument (at least in a case in which it rejected the complaint itself)
Jurisdiction
I don’t have time this morning to run this one to ground, but there is something about this that does not seem right, or perhaps missing some explanatory language
Intervention
Your complaint must comply with the pertinent rules
Affirmative Defenses
Findings and Conclusions
Findings and Conclusions
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Constitution
Evidence
Judgment
Ordinance
Recusal
Blurbs
Some might argue that a failure to preserve a complaint might deprive the Supreme Court of jurisdiction over a case involving that complaint. The Supreme Court had no problem rejecting that argument (at least in a case in which it rejected the complaint itself):
Jurisdiction: “Initially, the Insurance Fund argues that the School District waived any complaint about the court of appeals’ consideration of extrinsic evidence because the School District filed such evidence in support of its summary-judgment motion and thereby “opened the door to the introduction of controverting evidence.” In fact, the Insurance Fund contends that this Court lacks jurisdiction over the School District’s appeal because “a party may not complain on appeal of the improper admission of evidence if the complaining party introduced the same evidence or evidence of a similar character.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 238 (Tex. 2011). We disagree that any such waiver would affect our jurisdiction, which extends to any “appealable order or judgment of the trial courts if the court determines that the appeal presents a question of law that is important to the jurisprudence of the state.” Tex. Gov’t Code § 22.001(a). The School District presented to this Court a question of law important to the state’s jurisprudence, and thus established this Court’s jurisdiction over the appeal. Whether procedural hurdles prevent us from addressing the question does not affect our jurisdiction. See Hughes v. Tom Green County, 573 S.W.3d 212, 216 (Tex. 2019); see also Tex. R. App. P. 25.1(b) (“The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from. Any party’s failure to take any other step required by these rules, including the failure of another party to perfect an appeal . . . , does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately, including dismissing the appeal.”).” Pharr-San Juan-Alamo Indep. Sch. Dist. v. Tex. Pol. Subdivisions Prop./Casualty Joint Self Ins. Fund, No. 20-0033, 2022 Tex. LEXIS 149, at *12 n.5 (Feb. 11, 2022)
I don’t have time this morning to run this one to ground, but there is something about this that does not seem right, or perhaps missing some explanatory language:
Intervention: “Eichner contends that the Association waived its right to file a motion to strike because the motion was not filed until this court found Eichner’s lien was superior and remanded the case to the trial court. While a party can waive the right to complain by not moving to strike the intervention,…nothing in the Rules of Civil Procedure requires a party to move to strike intervention at a certain time. See Tex. R. Civ. P. 60. The Association, therefore, did not waive its right to file a motion to strike the intervention.” Kenneth D. Eichner, P.C. v. Dominguez, No. 14-18-00399-CV, 2022 Tex. App. LEXIS 897, at *15-16 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022)
Your complaint must comply with the pertinent rules:
Affirmative Defenses: “As to Burbach’s second issue—in which she asserts that the Agreement is unenforceable under the statute of frauds—we agree with Zachary that Burbach did not preserve the issue for our review. The statute of frauds is an affirmative defense that Burbach failed to plead and addressed only in her closing argument. See Tex. R. Civ. P. 94 (listing statute of frauds as affirmative defense and requiring defendant to plead it); ….We, therefore, do not reach Burbach’s second issue. See Tex. R. Civ. P. 94; Tex. R. App. P. 33.1.” Burbach v. Stearns, No. 03-20-00399-CV, 2022 Tex. App. LEXIS 996, at *15-16 (Tex. App.—Austin Feb. 10, 2022)
Findings and Conclusions: “Elyoussef also appears to argue that the trial court’s findings and conclusions were deficient because they were insufficiently specific and did not include any “evidentiary basis” for the trial court’s denial of his request to reduce his child support obligation, nor findings related to Barbarawi’s intentional underemployment or unemployment contentions. Rule 298 provides a party a remedy when it believes a trial court’s findings are inadequate to support its judgment. This rule allows a party to make “a request for specified additional or amended findings or conclusions.” Tex. R. Civ. P. 298. “The failure to request additional findings of fact and conclusions of law constitutes a waiver on appeal of the trial court’s lack of such findings and conclusions.” Robles, 965 S.W.2d at 611. Here, Elyoussef did not request that the trial court make additional findings or conclusions. As a result, he has waived any complaint about the adequacy of the trial court’s findings and conclusions.” In the Int. of Y.E., No. 14-20-00608-CV, 2022 Tex. App. LEXIS 916, at *13-14 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022)
Findings and Conclusions: “Both Section 153.258 and Rule 297 require a trial court to make properly requested findings of fact and conclusions of law. Fam. § 153.258(a) (stating that trial court “shall” make findings); Tex. R. Civ. P. 297 (mandating that the trial court “shall” file findings of fact and conclusions of law); ….However, if the trial court fails to do so, the party must file a timely notice of past due findings in order to preserve a complaint on appeal as to the trial court’s failure to make findings of fact and conclusions of law….By failing to file a notice of past due findings of fact and conclusions of law, Mother waived her right to complain on appeal about the trial court’s failure to make the requested findings and conclusions….We overrule Appellant’s third issue.” In the Int. of K.L.S., No. 11-21-00094-CV, 2022 Tex. App. LEXIS 975, at *7-8 (Tex. App.—Eastland Feb. 10, 2022)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com