February 28, 2022
Dearly Beloved:
Table of Contents
While there may be a conflict among the courts of appeals, here is one court which recently held that a post-dismissal motion is not necessary to complain about death penalty sanctions (assuming you complained about the same before the sanctions were imposed)
Death Penalty Sanctions (Discovery)
Your complaint must have been the one you made in the trial court
Settlement
You have to comply with the pertinent rules
Post-Answer Default Judgment
Constitution
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Notice
Receiver
Receiver
Receiver
Blurbs
While there may be a conflict among the courts of appeals, here is one court which recently held that a post-dismissal motion is not necessary to complain about death penalty sanctions (assuming you complained about the same before the sanctions were imposed) :
Death Penalty Sanctions (Discovery): “As a preliminary matter, State Farm argues that the Wrights failed to preserve error regarding the trial court’s imposition of death-penalty sanctions because they failed to file a motion for new trial or similar motion complaining of the dismissal. We disagree….
In the present case, State Farm sought death-penalty sanctions against the Wrights based on alleged discovery abuse. The trial court’s judgment refers to “Defendant State Farm Lloyds’ Amended Motion for Sanctions,” although that specific document does not appear in the appellate record. If the Wrights filed a written response to that motion, it likewise does not appear in the record. Nor does it appear that the Wrights filed a motion for new trial or other post-judgment motion. During the trial court’s evidentiary hearing on State Farm’s motion for sanctions, however, the Wrights’ counsel argued that their case should not be dismissed because the Wrights had produced everything they had and that any documents the Wrights had not produced must have been destroyed in one of the two fires. Although this argument obviously was not persuasive to the trial court, it was affirmatively asserted by the Wrights’ counsel, and the context makes clear that it was asserted as a reason why the court should not grant State Farm’s motion for sanctions. This argument by the Wrights’ counsel constitutes a sufficient “complaint,” “request,” or “objection” to satisfy the requirements of Rule 33.1(a)(1)(A).[“The words “complaint,” “request,” or “objection” do not have to be specifically used; it is necessary only that the complaining party make the trial court aware of the ruling it desires and state with reasonable specificity the grounds for that ruling. See Tex. R. App. P. 33.1(a)(1)(A).’ ….The fact that the trial court dismissed the Wrights’ claims in the face of this argument constitutes an implicit rejection of the Wrights’ position, thereby satisfying the preservation requirements of Rule 33.1(a)(2)(A).
State Farm cites several cases in support of its argument that the Wrights failed to preserve error, including Wade v. Farmers Insurance Group, No. 14-01-00691-CV, 2002 Tex. App. LEXIS 4691, 2002 WL 1404713, at *2 (Tex. App.—Houston [14th Dist.] June 27, 2002, no pet.) (not designated for publication) (“To preserve any error for appellate review, Wade had to present his complaint to the trial court by a motion to amend or correct the judgment, a motion for new trial, or some other similar method.”), and Pryor v. State, No. 14-05-00411-CV, 2006 Tex. App. LEXIS 4840, 2006 WL 1528963, at *1 (Tex. App.—Houston [14th Dist.] June 6, 2006, no pet.) (mem. op.) (“To preserve error in a judgment, a party must apprise the trial court of its objection by a motion to amend or correct the judgment, a motion for new trial, or some other similar method.”). To the extent these cases, or others, stand for the proposition that error in granting sanctions can be preserved under Rule 33.1 only by a post-judgment motion or complaint, we disagree and decline to follow them.” Wright v. State Farm Lloyds, No. 03-20-00384-CV, 2022 Tex. App. LEXIS 1346, at *3-6 (Tex. App.—Austin Feb. 25, 2022)
Your complaint must have been the one you made in the trial court:
Settlement: “Altecor argues for the first time on appeal that the ‘settlement… [her insurance company made with Egan, who sued Altecor for malicious prosecution] must be barred’ because Texas Rule of Civil Procedure 38(c) prohibited UPC from being ‘joined as a third-party defendant.’ See Tex. R. Civ. P. 38(c) (‘This rule shall not be applied, in tort cases, so as to permit the joinder of a liability or indemnity insurance company, unless such company is by statute or contract liable to the person injured or damaged.’). Altecor additionally argues that the settlement agreement between UPC and Egan does not comply with Texas Rule of Civil Procedure 11 and is thus unenforceable. See Tex. R. Civ. P. 11 (‘Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.’). Altecor’s motion and argument to the trial court contained neither references nor citations to either Rules 11 or 38. Because Altecor’s arguments on appeal do not comport with her argument to the trial court, she has not preserved them for review. See Arroyo Shrimp Farm, Inc., 927 S.W.2d at 150-51. Accordingly, Altecor’s first and second issues are overruled as unpreserved. See id.; Tex. R. App. P. 33.1(a).” Altecor v. United Prop. & Cas. Ins. Co., No. 13-20-00156-CV, 2022 Tex. App. LEXIS 1270, at *5-6 (Tex. App.—Corpus Christi Feb. 24, 2022)
You have to comply with the pertinent rules:
Constitution: “ • When Mother filed her application for a protective order, Father had already filed a suit seeking modification of conservatorship in the 311th District Court, the court of continuing, exclusive jurisdiction as to matters under title 5 of the Family Code. The Order operates as a permanent conservatorship-modification order. As a matter of statutory law, the trial court erroneously violated the “procedures and safeguards” applicable under the Family Code to a modification action, apparently including Father’s statutory rights to (1) a jury trial on custody under Family Code section 105.002; (2) temporary orders under Family Code section 105.001, (3) a full custody evaluation under Family Code section 107.103, (4) “full adversarial discovery” in the modification proceeding, (5) the alleged requirement under Family Code sections 153.009 and 153.134(a)(6) that the trial court determine and consider Daughter’s preferences for custody and visitation; and (6) the right to have the best interest of the child determined based on the Holley factors….
• When Mother filed her application for a protective order, Father had already filed a suit seeking modification of conservatorship in the 311th District Court, the court of continuing, exclusive jurisdiction as to matters under title 5 of the Family Code. The Order operates as a permanent conservatorship-modification order. The trial court erred by unconstitutionally failing to adhere to the “requisite procedures and safeguards,” apparently including Father’s statutory rights to (1) a jury trial on custody under Family Code section 105.002; (2) temporary orders under Family Code section 105.001, (3) a full custody evaluation under Family Code section 107.103, (4) “full adversarial discovery” in the modification proceeding, (5) the alleged requirement under Family Code sections 153.009 and 153.134(a)(6) that the trial court determine and consider Daughter’s preferences for custody and visitation; and (6) the right to have the best interest of the child determined based on the Holley factors…
• The trial court has demonstrated an inclination to rule in favor of anyone requesting a protective order for any duration, without regard for the heightened legal rights implicated in Title 5 proceedings.
• The protective-order statute “was unconstitutional as applied in this case” because the “trial court (1) imposed a protective order of unreasonable duration, (2) refused to consult [Daughter] about her desires, (3) refused to appoint amici to represent [Daughter’s] desires or best interest, (4) refused to order an independent evaluation of [Daughter], and (5) refused to consider less-drastic alternatives to achieve the least-restrictive means of ensuring Father’s and [Daughter’s] right to maintain their relationship was respected.”
• The protective-order statute as applied by the trial court in this case violated the due process rights of Father and Daughter.
In none of these complaints does Father assert that the evidence is legally or factually insufficient, and none of these complaints falls under an exception to the requirement that Father preserve error in the trial court. See Tex. R. App. P. 33.1(d);…To succeed on each of these complaints on appeal, Father must have preserved error in the trial court, including the complaints in which Father asserts violations of due process or other constitutional rights.” J.A.T. v. C.S.T., No. 14-19-00766-CV, 2022 Tex. App. LEXIS 1351, at *51-53 (Tex. App.—Houston [14th Dist.] Feb. 25, 2022)
Post-Answer Default Judgment: “The trial court stated that it would permit Lidia to substitute her counsel on the condition that the substituted counsel sign the motion before Tuesday, June 9, 2020. Lidia argues that this condition was inconsistent with Texas Rule of Civil Procedure 10, and therefore, the trial court abused its discretion. See Tex. R. Civ. P. 10. Even if that were true, Lidia cannot satisfy the Craddock test for setting aside the default judgment because there is no evidence in the record explaining her failure to appear at trial on June 9. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939). Moreover, by failing to file a motion for new trial, Lidia has waived the issue on appeal. See Tex. R. Civ. P. 324(b)(1); see also Tex. R. App. P. 33.1(a)(1)….Here, Lidia alleges in her brief that she failed to appear at trial because she “did not get notice of the hearing” from Guerra or the trial court. But there is no sworn statement or other evidence in the record establishing her factual assertion….Based on the limited record before us, we are left to speculate about why Lidia failed to appear….But Lidia’s failure to develop a record in the trial court is just a symptom of the underlying problem—by failing to ask the trial court for a new trial, Lidia waived the issue on appeal. [*8] …When, as here, evidence must be heard to set aside a default judgment, the defendant cannot raise the issue for the first time on appeal. See Tex. R. Civ. P. 324(b)(1)….Plainly, we cannot say the trial court abused its discretion if Lidia never asked the court to exercise its discretion in the first instance….Notably, having filed a request for findings of fact and conclusions of law only six days after the judgment was signed, Lidia clearly had notice of the default judgment and an opportunity to file a timely motion for new trial. See Tex. R. Civ. P. 329b(a)…; see also Tex. R. App. P. 33.1(a)(1); ” Elizardi v. One Last Cast, LLC, No. 13-20-00372-CV, 2022 Tex. App. LEXIS 1267, at *5-6 (Tex. App.—Corpus Christi Feb. 24, 2022)
All for now. Y’all take good care and stay safe.
Yours,
Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com