May 9, 2022
Dearly Beloved:
Don’t pay the ransom, I’ve escaped. The pesky day job kept getting in the way. 🙂
Table of Contents
Subject matter jurisdiction–typically a complaint that can be raised anytime, but sometimes failing to raise that complaint in parental right termination cases, concerning the trial court taking too long to terminate parental rights, might lend credence to the argument that the trial court did properly extend the time frame for termination
Your objection at trial must be the same as the complaint on appeal
Jury Charge
Some complaints can first be raised on appeal–e.g., in a bench trial, legal sufficiency challenges, and complaints about a complete lack of authentication of a document (though I wouldn’t advise not raising these objections in the trial court if you know about them)
Authentication
Notice
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Appointed Counsel
Constitution
Continuance
Evidence (Summary Judgment)
Oath
Pleading
Local Rules
Summary Judgment
Summary Judgment
Summary Judgment
Turnover Order
Zoom Trial
Blurbs
Subject matter jurisdiction–typically a complaint that can be raised anytime, but sometimes failing to raise that complaint in parental right termination cases, concerning the trial court taking too long to terminate parental rights, might lend credence to the argument that the trial court did properly extend the time frame for termination:
Subject matter jurisdiction: “The Texas Supreme Court dealt with a similar issue in G.X.H. See 627 S.W.3d at 288. In G.X.H., both parents challenged the jurisdiction of the trial court to terminate their parental rights when the order of termination was granted over a year after proceedings began. The high court found that the trial court granted the appropriate extensions in docket sheet notes. See id. We find the following language instructive: ‘We note, first, [*22] that nothing in the record reflects the parents ever raised this complaint in the trial court. See Tex. R. App. P. 33.1.’ We note some similarities between G.X.H. and the case at bar. First, like in G.X.H., Father did not raise the issue of jurisdiction at the trial court level. See id. Here, in fact, the docket notes indicate that Father stipulated that O.O.’s “status quo [was] ok” at the July 7th hearing. See Tex. R. App. P. 33.1.” In the Int. of O.O., No. 13-21-00411-CV, 2022 Tex. App. LEXIS 3042, at *23 (Tex. App.—Corpus Christi May 5, 2022)
Your objection at trial must be the same as the complaint on appeal:
Jury Charge: “Any complaint about an instruction that is not specifically included in the objection is waived. Id. And if the objection at trial is not the same as the complaint on appeal, the issue has not been preserved for our review. Id. Pavecon first asserts that questions one and two in the charge were erroneous because they neglected to include controlling fact questions. Question one asked: “Did Marty Murphy and any of the [Pavecon] Defendants agree, among other things, that Marty Murphy was entitled to be compensated for his employment?” Question two asked: “Did any of the [Pavecon] Defendants fail to comply with the agreement, if any, regarding Marty Murphy’s compensation?”
Pavecon argues these questions were inadequate because they did not include any factual details about the parties’ dispute. According to Pavecon, the issue is not whether the parties agreed that Mr. Murphy would be compensated for his employment; rather, the issue is whether he was entitled to receive a particular form of compensation after the reorganization. At the charge conference, however, Pavecon did not specify which disputed terms it believed required inclusion. Instead, it directed the trial court to its proposed questions one and two, which sought to limit and reframe Mr. Murphy’s claim by asking: (1) whether any of the Pavecon defendants agreed that Pavecon Public Works and Pavecon Ltd. would take allocations made to capital accounts and use them to purchase stock in Pavecon Holding on Mr. Murphy’s behalf; and (2) whether any of the Pavecon entities failed to comply with such an agreement.” Pavecon Holding Co. v. Murphy, No. 05-20-00438-CV, 2022 Tex. App. LEXIS 3075, at *35-36 (Tex. App.—Dallas May 6, 2022)
Some complaints can first be raised on appeal–e.g., in a bench trial, legal sufficiency challenges, and complaints about a complete lack of authentication of a document (though I wouldn’t advise not raising these objections in the trial court if you know about them):
Authentication: “The record does not show that appellees/relators objected to any of the Purported Agreements on the basis that they were not authenticated in the trial court.4 But, as discussed below, appellees/relators were not required to preserve this objection in the trial court.
Appellees/relators assert on appeal that the trial court properly denied Constant’s motion to compel arbitration because he failed to provide competent evidence of the existence of any agreement that mandates arbitration. They argue that the record is completely devoid of evidence that Constant authenticated the Purported Agreements.
The complete absence of authentication, as in this case, is a substantive defect that can be raised for the first time on appeal. See Guerrero, 465 S.W.3d at 706-08; see also Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.) (stating in the summary-judgment context that “[a] complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal”); see also Caballero v. Rushmore Loan Mgmt. Servs. LLC, No. 05-19-00298-CV, 2020 WL 1685418, at *7 (Tex. App.—Dallas Apr. 7, 2020, no pet.) (mem. op.) (stating that the complete absence of authenticating evidence is a substantive defect that can be raised for the first time on appeal but a complaint that evidence was not properly authenticated is a defect of form that must objected to and ruled on in the trial court).
Accordingly, we conclude that the complete absence of evidence authenticating the Purported Agreements that Constant attached as exhibits to his motion and supplemental motion supports the trial court’s denying Constant’s requests to compel the claims against him to arbitration.” Constant v. George Gillespie, No. 05-20-00734-CV, 2022 Tex. App. LEXIS 3069, at *15-17 (Tex. App.—Dallas May 6, 2022)
Notice: “The Gardners challenge only element (3), whether the Morazans gave them proper notice to vacate. n. 1 n. 1 The Morazans contend that the Gardners failed to preserve their appellate complaint. But because proper notice is an element of the Morazans’ suit, the Gardners’ challenge to the sufficiency of that notice evidence may be brought for the first time on appeal. See Tex. R. App. P. 33.1(d); Tex. R. Civ. P. 324(a)-(b);” Gardner v. Morazan, No. 02-21-00251-CV, 2022 Tex. App. LEXIS 3017, at *3 n.1 (Tex. App.—Fort Worth May 5, 2022)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 827/371-8759; www.stevehayeslaw.com