December 31, 2022
Dear Friends:
Between the pesky day job and remodeling the garage, I’ve gotten woefully behind on this blog. But this brings me up to date for the month of December as to error preservation decisions which actually cite 33.1. I’ll try to catch up on the others in the weeks to come.
Table of Contents
Thanks to my buddy Jerry Bullard for bringing this one to my attention–the Supreme Court reminds us that you have to argue in the trial court that a statute is inapplicable in order to make that argument on appeal
Statutes
Here, a court held that even though a trial court issued a finding “embrac[ing] a hypothetical argument Appellees could make,” because the Appellees didn’t make that argument in the trial court, they did not preserve it
Statutory Construction
This case shows the importance of getting a written ruling on something as a means to show the trial court ruled on your complaint–even if just impliedly
Summary Judgment
Here, a party preserved a factual sufficiency complaint in a motion for new trial
Factual Sufficiency
Here, two parties’ complaints were sufficiently specific
Jury Charge
Order
The complaint you raise on appeal must be the complaint you raised at trial
Attorney Fees
Evidence
Here is an example of an implicit ruling on a competing summary judgment motion
Summary Judgment
You have to bring your complaint to the trial court’s attention– getting a ruling is a way to make sure you did so
Continuance
You have to get a ruling, and sometimes a requisite hearing–and while implied rulings are possible, it is always better to get an express ruling, and you have to object to the trial court’s refusal to rule if it refuses to rule
Evidence
Expert
Your complaint must be timely, and a language barrier may not be a good excuse for a delay in raising a complaint
Arbitration
You have to comply other pertinent rules
Constitution
Evidence
Factual Sufficiency
Summary Judgment
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Affidavit
Constitutional
Constitutional
Covid-19 Constitutional
Evidence
Evidence
Evidence (Summary Judgment)
Evidence
Evidence
Evidence
Expert
Injunction
Injunction
Jury
Jury Trial
Legal Sufficiency
Motion
Petition
Liquidator
Order
Order
Opening Statement
Pleading
Reporters’ Record
Right to Bear Arms
Summary Judgment
Summary Judgment (Evidence)
Zoom Hearing
Blurbs
Thanks to my buddy Jerry Bullard for bringing this one to my attention–the Supreme Court reminds us that you have to argue in the trial court that a statute is inapplicable in order to make that argument on appeal:
Statutes: “On rehearing, Latif argues that Sections 6.6015 and 153.00715, enacted in 2011, are inapplicable to the parties’ 2008 agreement. See Act of May 27, 2011, 82d Leg., R.S., ch. 1088, § 3, 2011 Tex. Gen. Laws 2824, 2825. Ayad responds, in part, that we would have reached the same result even without those two statutory provisions. We need not resolve these questions arising for the first time on rehearing because throughout this litigation the parties’ positions regarding the two provisions have assumed their application. Accordingly, the trial court should apply those provisions in further proceedings in this case.” In re Ayad, Case No. 22-0078, December 16, 2022.
Here, a court held that even though a trial court issued a finding “embrac[ing] a hypothetical argument Appellees could make,” because the Appellees didn’t make that argument in the trial court, they did not preserve it:
Statutory Construction: “The parties also brief the issue of whether, subject to the Relinquishment Act of 1919 and Lemar v. Garner, 121 Tex. 502, 50 S.W.2d 769 (Tex. 1932), Appellees currently have any mineral interest to convey in the Pecos County property. Though the County Court’s findings of fact and conclusions of law state “[a]pplying the rule stated in Lemar would result in the Renz Brothers owning nothing in” the disputed property, we agree with Appellants that Appellees have not made this argument in the County Court. The County Court’s final order also did not address this issue, nor did its 2021 order granting the motion to enforce. Accordingly, this tangential issue is not before us on appeal. See TEX.R.APP.P. 33.1. To the extent the County Court’s findings of fact embraced a hypothetical argument Appellees could make in the future, but had not made in this case, that was error.” In re Estate of Renz, No. 08-21-00042-CV, 2022 Tex. App. LEXIS 9169, at *20 n.7 (Tex. App.—El Paso Dec. 15, 2022, no pet. h.)
This case shows the importance of getting a written ruling on something as a means to show the trial court ruled on your complaint–even if just impliedly:
Summary Judgment: “In a portion of its first issue, Siana argues that the trial court erred in failing to grant its motion to strike White Oak’s summary-judgment motion because White Oak filed the summary-judgment motion after the dispositive-motion deadline set forth in the trial court’s agreed docket control order.
Because the record contains no signed order denying Siana’s motion to strike, we first consider whether Siana preserved its complaint about its motion to strike for appellate review. To do so, we review the record to determine whether a denial of Siana’s motion to strike is implied by the trial court’s other rulings. See TEX. R. APP. P. 33.1(a)….
The reporter’s record shows that at the hearing on White Oak’s summary-judgment motion, the trial court stated that it would consider Siana’s motion to strike after the parties’ arguments on the merits of the summary-judgment motion. But the hearing ended without further discussion by the trial court or the parties regarding Siana’s motion to strike. After the hearing, Siana filed an emergency motion to set for submission or a hearing its motion to strike White Oak’s summary-judgment motion. A few days later, and on the same date that the trial court signed its final judgment granting White Oak summary judgment, the trial court signed an order denying Siana’s emergency motion, noting that Siana’s “motion [to strike] was heard” by the trial court on the same date as White Oak’s summary-judgment motion. These rulings by the trial court demonstrate that it considered Siana’s motion to strike, and in granting White Oak summary judgment, it implicitly denied Siana’s motion to strike. Thus, we conclude that this portion of Siana’s first issue is preserved for appellate review. See TEX. R. APP. P. 33.1(a).” Siana Oil & Gas Co. LLC v. White Oak Operating Co., LLC, No. 01-21-00721-CV, 2022 Tex. App. LEXIS 9526, at *18-20 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, no pet. h.)
Here, a party preserved a factual sufficiency complaint in a motion for new trial:
Factual Sufficiency: “Perez’s motion for new trial did not mention the $1,475 MRI-interpretation charge. Nonetheless, because the motion challenged the factual sufficiency of the evidence to support the jury’s award for past medical expenses, Perez adequately preserved the issue. See Tex. R. App. P. 33.1(a).” Perez v. Williams, No. 02-21-00395-CV, 2022 Tex. App. LEXIS 8791, at *14 n.10 (Tex. App.—Fort Worth Dec. 1, 2022, no pet. h.)
Here, two parties’ complaints were sufficiently specific:
Jury Charge: “During the charge conference, Mohammadi’s attorney explicitly objected to Question 1 on the ground that it should ask whether Randalls knew or should have known of the danger. Counsel further objected to splitting the liability issue into two questions and to conditioning Question 2 on the jury’s answer to Question 1. He explained to the court that Mohammadi was an invitee and that the jury should be able to consider actual knowledge regardless of its finding on constructive knowledge. Mohammadi also submitted her own proposed Question 1 in substantially correct form….Mohammadi clearly preserved her appellate arguments regarding the bifurcation and conditioning in the jury charge.” Mohammadi v. Albertsons, LLC, No. 14-21-00045-CV, 2022 Tex. App. LEXIS 8876, at *15-16 (Tex. App.—Houston [14th Dist.] Dec. 6, 2022, no pet. h.)
Order: “In her response brief, Wife asserts that because Husband’s only objections to the form of the trial court’s order concerned the deadline for the payment and the source of the funds, Husband has failed to preserve the issues he raises in his petition. We disagree.
For a complaint to be preserved for appellate review, the record must show (1) that the party presented a timely objection to the trial court that states the grounds for the ruling sought “with sufficient specificity to make the trial court aware of the complaint” and (2) that the trial court ruled—or refused to rule—on the objection. Tex. R. App. P. 33.1(a); ….Here, Husband filed a written response objecting to Wife’s motion on the grounds that the premarital agreement precluded her from seeking interim attorney’s fees and that the court could not award attorney’s fees to “even the financial playing field.” In addition, Husband repeatedly objected to Wife’s fee request throughout the hearing on the motion, raising both arguments he now asserts in his petition for mandamus—that the premarital agreement prohibits Wife from seeking interim attorney’s fees and that Wife’s evidence was insufficient to show that the requested fees were necessary to protect the children’s safety and welfare. Despite having been fully apprised of Husband’s objections, the trial court orally granted Wife’s motion at the conclusion of the hearing. Because Husband had clearly informed the trial court of his complaints to the motion and the trial court had ruled, Husband was not required to re-raise his substantive objections when presented with a proposed form of order reducing the trial court’s oral ruling to writing. See Tex. R. App. P. 33.1(a); ….Accordingly, error was preserved.” In re D.M.L., No. 02-22-00451-CV, 2022 Tex. App. LEXIS 9358, at *6-8 (Tex. App.—Fort Worth Dec. 22, 2022, no pet. h.)
The complaint you raise on appeal must be the complaint you raised at trial:
Attorney Fees: “Next, we address Gonzales’s argument that the district court erred in refusing to admit evidence of UMC’s “costs” on relevance grounds. At trial, Gonzales argued that evidence of UMC’s “per capita cost of maintenance” was relevant because it pertained to “a statutory limitation on the recovery of the hospital” pursuant to the Texas Special Districts Code and Health and Safety Code.25 Gonzales does not advance the statutory cap argument on appeal. Instead, he urges that evidence of “costs” is a relevant factor for determining a reasonable price. A trial objection stating one legal basis may not be used to support a different theory on appeal.26 Gonzales’s offer of proof and argument about an alleged statutory cap on UMC’s fees never told the trial court that such evidence was relevant to a “reasonable price” under the common law and the specific ground asserted on appeal was not apparent from the context.27 Thus, the issue has been waived.” Gonzales v. Lubbock Cty. Hosp. Dist., No. 07-21-00301-CV, 2022 Tex. App. LEXIS 9558, at *12-13 (Tex. App.—Amarillo Dec. 29, 2022, no pet. h.)
Evidence: “[At trial], Foust objected that this question [about the intent of the sender of the email] called for speculation and was irrelevant. The trial court overruled Foust’s objection.
On appeal, Foust challenges this same question as calling for an impermissible comparison of testimony and bolstering. To preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court….Because the complaint on appeal does not comport with the objection asserted at trial, Foust’s first issue is not preserved and is overruled. See Tex. R. App. P. 33.1(a).” Foust v. Scott, No. 10-20-00095-CV, 2022 Tex. App. LEXIS 8764, at *4-5 (Tex. App.—Waco Nov. 30, 2022, no pet. h.)
Here is an example of an implicit ruling on a competing summary judgment motion:
Summary Judgment: “In this case, the final judgment grants Blue Dog’s summary-judgment motion but does not mention appellants’ summary-judgment motion. In its appellee’s brief, Blue Dog argues that appellants failed to obtain a trial-court ruling on their motion. But, as noted above, the docket sheet seems to indicate that the cross-motions were heard together. Moreover, the final judgment recites that the trial judge considered Blue Dog’s motion, “all related briefing, all admissible evidence, and any argument of counsel,” which could encompass appellants’ motion. Finally, at oral argument Blue Dog conceded that the trial judge denied appellants’ motion. We accept that concession and conclude that the judgment implicitly denied appellants’ summary-judgment motion. See Tex. R. App. P. 33.1(a)(2)(A) (implicit ruling suffices to preserve error). Accordingly, the evidence attached to appellants’ motion is part of the summary-judgment record for both motions.” C3 Venture Flint, LLC v. Blue Dog Holdings, Inc., No. 05-21-00863-CV, 2022 Tex. App. LEXIS 8756, at *4-5 (Tex. App.—Dallas Nov. 30, 2022, no pet. h.)
You have to bring your complaint to the trial court’s attention– getting a ruling is a way to make sure you did so:
Continuance: “Ethridge filed his motion for continuance on August 2, 2021, only one day before the August 3, 2021 hearing on Northgate’s Summary Judgment Motion. Thus, the motion was not set for hearing during the summary judgment hearing. There is also no indication in the record that Ethridge noticed his motion for continuance for a hearing at any time. The trial court thus did not “refuse” to rule on the motion for continuance and Ethridge failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a) (to preserve complaint for appellate review, record must show complaint was made in trial court by timely request, objection, or motion that complied with Texas Rules of Civil Procedure).” Ethridge v. Northgate Vertical Lp, No. 01-21-00595-CV, 2022 Tex. App. LEXIS 9507, at *14-15 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, no pet. h.)
Evidence: “On appeal, Garcia argues that the evidence that Semler tendered with her TCPA motion was defective, that the trial court should have sustained Garcia’s objections rather than ignored them, and that the judgment should be reversed. Specifically, Garcia objected to various statements in Semler’s declaration and statements in the factual background section of Semler’s motion on grounds of hearsay, best-evidence rule, speculation, self-serving, legal conclusion, or some combination thereof.
To preserve error for appeal, a party must make a timely request, objection, or motion and either (1) obtain an express or implied ruling from the trial court or
(2) object to the trial court’s refusal to rule. See TEX. R. APP. P. 33.1(a). Here, none of the trial court’s orders contain any express ruling on Garcia’s objections, and
Garcia does not argue that the orders implicitly rule on her objections. Rather, her complaint is that the trial court ignored her objections.
Based on the record before us, however, we cannot conclude that the trial court refused to rule on Garcia’s objections. Even if it had refused to rule, it was Garcia’s obligation to object to the trial court’s refusal to rule. See TEX. R. APP. P. 33.1(a)(2)(B). Garcia, however, does not argue that she ever objected to the trial court’s refusal to rule, and the record does not reflect that she ever did so object.
Accordingly, we conclude that nothing is preserved for our review.” Garcia v. Semler, No. 05-21-00750-CV, 2022 Tex. App. LEXIS 9611, at *11-12 (Tex. App.—Dallas Dec. 30, 2022, no pet. h.)
Expert: “Dow Golub argues that the record does not show that McRay attempted to designate Wilshire as an expert on fiduciary duty and the trial court did not deny it leave to do so. We agree. In its prior decision, this Court noted that McRay had moved the trial court to allow a late designation of expert witnesses, proffering affidavits from two experts: Venzke on the reasonableness of fees, and Wilshire on the standard of care. See McRay, 554 S.W.3d at 708. McRay’s request to late designate Wilshire as an expert on the standard of care correlated to its only claim before the trial court, a professional negligence claim. McRay had not pleaded a breach of fiduciary duty claim. Thus, when the trial court denied McRay’s request to designate Wilshire after the deadline, it was denying the designation of Wilshire as an expert on professional negligence and not an expert on fiduciary duties. Because McRay did not request that Wilshire be designated as a fiduciary duty expert, and the trial court therefore did not deny a request to designate him as such, that complaint was not preserved for our review. See Tex. R. App. P. 33.1(a)(1), (2) (stating as prerequisite to presenting complaint for appellate review, record must show that complaint was made to trial court by timely request, objection, or motion and that trial court ruled on request, objection, or motion, or refused to rule).” McRay v. Dow Golub Remels & Gilbreath Pllc, No. 01-21-00032-CV, 2022 Tex. App. LEXIS 9569, at *14-16 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, no pet. h.)
Your complaint must be timely, and a language barrier may not be a good excuse for a delay in raising a complaint:
Arbitration: “At the hearing on the motion to dismiss in the trial court, Andrade’s counsel explained that he was not aware of the forum selection clause until 2020 because, though he has “a reasonable degree of Spanish fluency,” his knowledge did not rise “to the level of interpreting complex legal terms within a clause.” Thus, he only learned of the existence of the clause when Andrade’s Mexico-based counsel pointed it out. Logicorp emphasizes that, although Andrade’s counsel may not have known about the clause until 2020, Andrade knew or should have known about it because he was a signatory to the by-laws. We agree. Having signed the by-laws in his capacity as Logicorp’s co-founder and shareholder, Andrade is charged with knowledge of its contents, including the forum-selection clause. See Town N. Nat’l Bank v. Broaddus, 569 S.W.2d 489, 492 (Tex. 1978) (“[A] party to a written agreement . . . is charged as a matter of law with knowledge of its provisions . . . unless he can demonstrate that he was tricked into its execution.”). Because Andrade constructively knew about the forum-selection clause and yet did not assert it for fifteen months after he was sued by Logicorp, consideration of this factor weighs strongly in favor of a finding of waiver.” Logicorp Mex. Sa De Cv v. Andrade, No. 13-21-00243-CV, 2022 Tex. App. LEXIS 8795, at *19-20 (Tex. App.—Corpus Christi Dec. 1, 2022, no pet. h.)
You have to comply other pertinent rules:
Constitution: “In his reply brief, William argues that the trial court’s action of ruling before trial that there would be no fault and then considering fault in dividing the parties’ estate is “akin to a procedural due process violation” and that the trial court unfairly denied him the right to introduce evidence on fault. But William did not raise this due process argument with the trial court, see Tex. R. App. P. 33.1(a) (stating prerequisites for preserving appellate complaints), and he could have made an offer of proof, see id.; Tex. R. Evid. 103(a), but did not do so.” Cyree v. Cyree, No. 03-21-00319-CV, 2022 Tex. App. LEXIS 9352, at *13 n.6 (Tex. App.—Austin Dec. 22, 2022, no pet. h.)
Evidence: “As to William’s argument that the trial court prevented him from cross examining Kimberley about her role in breaking up the marriage, “her extramarital affairs,” and the parties’ alleged agreement to date people outside the marriage, he did not make an offer of proof that would allow this Court to assess whether the exclusion of this evidence was erroneous and harmful. See Tex. R. App. P. 33.1(a) (stating prerequisites for preserving appellate complaints); Tex. R. Evid. 103(a) (generally requiring party, when trial court’s ruling excludes evidence, to inform court of substance of excluded evidence by offer of proof).” Cyree v. Cyree, No. 03-21-00319-CV, 2022 Tex. App. LEXIS 9352, at *12-13 (Tex. App.—Austin Dec. 22, 2022, no pet. h.)
Factual Sufficiency: “To preserve a challenge to the factual sufficiency of the evidence, a party must raise the issue in a motion for new trial. Tex. R. Civ. P. 324(b)(2); ….McGee did not file a motion for new trial. Therefore, we cannot consider her complaints on appeal that the evidence was factually insufficient to support the jury’s findings…. A complaint of excessive damages found by a jury is a complaint of factual insufficiency that is preserved by raising the complaint in a motion for new trial. Tex. R. Civ. P. 324(b)(4) (motion for new trial is prerequisite to raising complaint to jury finding of excessive damages).” McGee v. Tatum, No. 05-21-00303-CV, 2022 Tex. App. LEXIS 8656, at *7-8 (Tex. App.—Dallas Nov. 28, 2022, no pet. h.)
Summary Judgment: “To the extent this claim exists separately from the remainder of BioTE’s “count 2” claim for breach of fiduciary duty, which is far from clear, we note that Medcalf did not separately address it in his no-evidence motion for summary judgment. The trial court signed a final summary judgment granting that motion. BioTE did not complain of this below and has not presented any argument on appeal to explain why it would exist separate and apart from the breach-of-fiduciary-duty claim or why it would not properly be disposed of on the existing motion. We therefore conclude any issue or argument as to the propriety of the no-evidence summary judgment on BioTE’s claim for misappropriation of corporate opportunities was not preserved for appellate review and has been waived on appeal. See TEX. R. APP. P. 33.1.” Biote Med. v. Medcalf, No. 05-20-00661-CV, 2022 Tex. App. LEXIS 9604, at *28-29 (Tex. App.—Dallas Dec. 30, 2022, no pet. h.)
All for now. Y’all have a great New Year, and a great 2023.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com