May 23, 2022
Dearly Beloved:
Table of Contents
The Supreme Court recently expounded on how an error preservation ruling in one severed claim was res judicata on the preservation question in a different severed claim
Oil and Gas/Drainage/Res Judicata
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
Legal Sufficiency
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
Collateral Consequences
Discovery
Evidence
Litigation Costs/Settlement
Findings
Legal and Factual Sufficiency
Local Rules
Notice
Sanctions
Summary Judgment (Continuance)
Telephonic Hearing
Venue Selection Clauses
Blurbs
The Supreme Court recently expounded on how an error preservation ruling in one severed claim was res judicata on the preservation question in a different severed claim. I didn’t include the Court’s entire res judicata discussion, but it is worth reading:
Oil and Gas/Drainage/Res Judicata: “II. Res judicata does not bar the Martins’ argument that drilling the Martin Well triggered an obligation to prevent drainage from the Simmons Well.
Rosetta argues that it is nonetheless entitled to summary judgment on the Martins’ claim of breach because it conclusively proved its affirmative defense of res judicata. In Rosetta’s view, the Martins’ argument that the Martin Well triggered Rosetta’s duty to protect against drainage from the Simmons Well is barred because it could have been raised against Newfield in the trial court, but the court of appeals in Newfield held that it had not been preserved. We disagree for two reasons: res judicata does not apply between separate actions created by a trial-court severance, and Rosetta’s challenge is to a new argument raised by the Martins, not a new claim.” Rosetta Res. Operating, LP v. Martin, No. 20-0898, 65 Tex. Sup. Ct. J. 949, 2022 Tex. LEXIS 383, at *23-24 (May 6, 2022)
Your objection at trial must be the same as the complaint on appeal:
Jury Charge: “Coles’s argument on appeal that the inclusion of the directed verdict language in the jury charge “prejudice[d] his case” does not comport with the objection he made at trial that the repeat sexually violent offender issue should be decided by the jury. Because Coles’s appellate argument does not comport with the ground he asserted at trial, he has failed to preserve his complaint for appellate review.[6] See Tex. R. App. P. 33.1(a)(1);” In re Coles, No. 02-21-00173-CV (Tex. App.-Fort Worth, 5/12/2022)
Some complaints can first be raised on appeal–e.g., in a bench trial, legal sufficiency challenges:
Legal Sufficiency: “”Initially, we reject the contention that Renegade failed to preserve this no-evidence contention. Legal sufficiency complaints arising from a bench trial may be raised for the first time on appeal. Tex.R.App.P. 33.1(d). Moreover, Renegade urged it during closing arguments at trial.”” Renegade Well Servs. v. Amerivax, Inc., No. 07-21-00211-CV (Tex. App. Amarillo– May 9, 2022)
All for now. Y’all enjoy the week, which I hope includes rainfall.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com