March 18, 2023
Dear Folks:
This week catches a couple of older Supreme Court error preservation rulings.
Table of Contents
Without expressly saying so, the Supreme Court held that a party may raise a complete lack of notice of a summary judgment hearing in a motion for new trial–and here, that included the lack of notice of a hearing on submission following the COVID-19 cancellation of the original summary judgment hearing
The Supreme Court addressed whether an agreement to use expert affidavits and depositions in multiple cases waived a reliability complaint about the opinions in those affidavits and depositions.
Experts
Standing, which is jurisdictional and can first be raised on appeal, is not involved when the complaint is that the party cannot satisfy certain statutory prerequisites
While legal and factual sufficiency complaints concerning a bench trial can first be raised on appeal, failing to preserve your complaint about a lack of findings will waive your sufficiency complaint
Here is a case in which a party’s complaint in the trial court was sufficiently specific
Hearing
Your complaint must be timely–and that includes raising complaints in the arbitration proceedings if you intend to challenge the arbitrator on them in appealing the award
Witness
You have to comply other pertinent rules
Findings
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Capacity
Discovery (Redaction)
Temporary Injunction (Overbreadth)
Blurbs
Without expressly saying so, the Supreme Court held that a party may raise a complete lack of notice of a summary judgment hearing in a motion for new trial–and here, that included the lack of notice of a hearing on submission following the COVID-19 cancellation of the original summary judgment hearing:
Notice: “Our rules of civil procedure prescribe guidelines to ensure the parties receive notice and a meaningful opportunity to be heard. [*6] A motion for summary judgment must be served on the opposing party at least twenty-one days before the time specified for a hearing. TEX. R. CIV. P. 166a(c). Notice of a summary-judgment hearing must inform the nonmovant of the exact date of hearing or submission. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). A trial court that grants summary judgment without notice of the hearing to the nonmovant errs in granting it. Id.
A new hearing requires a new notice. In this case, COVID-19 closures canceled the originally scheduled oral hearing, thus nullifying Virage’s initial notice of hearing. Virage had a renewed obligation to provide notice of any rescheduled hearing, which it failed to do. The Harris County Board of District Judges’ March 12 announcement also placed a burden on the court to notify the parties of a rescheduled hearing date, which it failed to do. Nothing in the record evidences a rescheduled hearing date and time, by submission or otherwise.
Parties are entitled to rely on a court’s published announcement canceling upcoming proceedings. They are further entitled to rely on an announcement that the courts would notify the parties of a later hearing date. Given the public announcement that all oral hearings were canceled, we hold that Price [*7] did not have adequate notice of a rescheduled hearing by submission.
We cannot agree with Virage’s argument that its April 1 motion to strike sufficiently notified Price that a summary-judgment hearing would go forward by submission on April 2 despite the cancellation notices. The motion to strike says no such thing, and such an interpretation conflicts with published court announcements to the contrary. Absent further written amended notice of a hearing date from either Virage or the trial court, Price was entitled to rely on the courts’ published statements that in-person court proceedings were canceled.
All interested parties must receive notice and a meaningful opportunity to respond when a court reschedules a previously canceled hearing. Price did not receive the adequate notice that due process requires. The trial court therefore erred in granting summary judgment.
….
Price and his law firm were denied due process when the trial court proceeded with a canceled hearing without renewed notice to the parties. The trial court thus erred in striking the summary-judgment response as untimely, in granting summary judgment, and in denying the motion for new trial. Accordingly, and without hearing oral argument, see TEX. R. APP. P. 59.1, we grant Price’s petition for review, reverse the court of appeals’ judgment, and remand to the trial court for proceedings consistent with this opinion.” B. Gregg Price, P.C. v. Series 1 – Virage Master LP, No. 21-1104, 2023 Tex. LEXIS 146, at *5-7, *11 (Feb. 17, 2023)
The Supreme Court addressed whether an agreement to use expert affidavits and depositions in multiple cases waived a reliability complaint about the opinions in those affidavits and depositions. What the Court said may indicate whether to use the agreement template used in those cases, to beef it up to make clear that no objections are being waived, or to object to objections the affidavits/depositions when they are offered:
Experts: “A separate group of plaintiffs sued Helena in Reagan County. The lawyers in that case and in this case agreed that certain expert affidavits and depositions could be used in both cases. Although they did not so argue in the district court, the plaintiffs now contend that this Rule 11 agreement restricted Helena’s right to challenge the reliability of the experts’ testimony. We disagree. We read the agreement as intended to eliminate needless duplication of discovery and to permit the use of the expert opinions insofar as they recite the experts’ “qualifications and experience,” the “methodology employed” by the experts, and the “scope and extent” of the opinions. We do not read the agreement as intended to waive Helena’s right to challenge the substance of the experts’ opinions as unreliable. The attorneys who executed the agreement did not argue in the district court that the agreement has the effect now claimed.” Helena Chem. Co. v. Cox, No. 20-0881, 66 Tex. Sup. Ct. J. 389 n.3, 2023 Tex. LEXIS 208, at *5 (Mar. 3, 2023)
Standing, which is jurisdictional and can first be raised on appeal, is not involved when the complaint is that the party cannot satisfy certain statutory prerequisites:
Statutory Prerequisites: “In its first issue, ERT asserts SRC does not have standing to pursue a claim under the fraudulent lien statute because SRC is not an “obligor or debtor.” Although ERT did not raise this argument below, ERT asserts this issue is jurisdictional and, therefore, not waived. The Fraudulent Lien Statute…provides [that] …’the obligor or debtor, or a person who owns an interest in the real or personal property’… [may bring a cause of action]. TEX. CIV. PRAC. & REM. CODE § 12.003(a)(8) (emphasis added).
In Pike v. Tex. EMC Mgmt., LLC, the Supreme Court of Texas determined, ‘[W]hether a party can prove the merits of its claim or satisfy the requirements of a particular statute does not affect the court’s subject-matter jurisdiction.’ 610 S.W.3d 763, 777 (Tex. 2020). ‘[T]he question whether a plaintiff has established his right to go forward with [his] suit or satisfied the requisites of a particular statute pertains in reality to the right of the plaintiff to relief rather than to the [subject-matter] jurisdiction of the court to afford it’….The statutory question of whether SRC is an “obligor or debtor” under Section 12.003(a)(8) is an extra-constitutional question and, therefore, not properly characterized as jurisdictional under Pike.
To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the context. Tex. R. App. P. 33.1(a)(1)(A)….Here, ERT did not raise the issue of whether SRC is an obligor or debtor in the trial court, and the issue is not jurisdictional. Therefore, it is not preserved for our review. See id. We overrule ERT’s first issue.” Eagle Rock Timber, Inc. v. Rock Hard Rental, LLC, No. 04-21-00372-CV, 2023 Tex. App. LEXIS 1646, at *7-9 (Tex. App.—San Antonio Mar. 15, 2023, no pet. h.)
While legal and factual sufficiency complaints concerning a bench trial can first be raised on appeal, failing to preserve your complaint about a lack of findings will waive your sufficiency complaint:
Findings: “On appeal, Guerrero asserts that her evidence proved that Oralia’s signatures on the Will—both on the first and second pages—were forged, thus undermining the probate court’s conclusion that the Will was valid. We construe Guerrero’s brief to challenge the legal and factual sufficiency of the probate court’s implied findings and conclusions rejecting her forgery defense. But, as discussed, Guerrero failed to request additional findings after the probate court filed its findings of fact, which contained no elements of Guerrero’s forgery defense. When a trial court does not include in its findings any elements of a party’s ground of recovery or affirmative defense, and the party fails to request additional findings, not only does the failure to request additional findings waive the party’s complaint regarding the lack of findings, but the failure also waives any complaint that the party has regarding the sufficiency of the evidence to support [*20] the ground of recovery or the defense….Thus, Guerrero has waived any error with respect to her forgery defense, including her challenge to the sufficiency of the probate court’s implied rejection of that defense.” Guerrero v. Salinas, No. 01-21-00563-CV, 2023 Tex. App. LEXIS 1619, at *19-21 (Tex. App.—Houston [1st Dist.] Mar. 14, 2023, no pet. h.)
Here is a case in which a party’s complaint in the trial court was sufficiently specific:
Hearing: “We also reject Glover’s contention that Appellants did not adequately preserve their complaint that the trial court could not issue a temporary injunction without permitting them to present any witnesses or evidence. The record reflects that Appellants’ counsel requested additional time when it became apparent that, rather than reconvene the hearing as suggested, the trial court was going to rule on the application for a temporary injunction without hearing any of Appellants’ evidence. The trial court denied Appellants’ request for additional time and concluded the hearing after advising the parties that the temporary injunction would issue.” Henric v. Glover, No. 03-22-00724-CV, 2023 Tex. App. LEXIS 1635, at *15 (Tex. App.—Austin Mar. 15, 2023, no pet. h.)
Your complaint must be timely–and that includes raising complaints in the arbitration proceedings if you intend to challenge the arbitrator on them in appealing the award:
Witness: “Within her second issue, Franco further argues that the arbitrator abused his discretion and showed partiality towards Appellee’s counsel when he permitted Appellee’s witnesses to stay and observe the proceedings despite the parties’ agreement to exclude outside witnesses from the proceedings. Franco’s evidence in support of this allegation is the following language in the arbitrator’s award:
9. Attorney Matt Mahoney appeared with his Petitioner client [Franco]. Attorney Scott Poerschke appeared with his Respondent client [Orozco] and also brought a realtor and a real estate attorney as witnesses. Consistent with the guidance provided by this Arbitrator, [Orozco’s] request for these witnesses to participate was DENIED. This Arbitrator suggested they remain and observe with their microphones [*9] muted in case the Arbitration subsequently turned into a Mediation. They complied and remained merely to observe, without objection from either side.
While this paragraph fails to establish the parties had agreed to exclude outside witnesses, it does establish that Franco did not object after King suggested that Orozco’s two witnesses “remain and observe with their microphones muted”; she cannot now complain that King “permitt[ed] Appellee’s witnesses to stay and observe the proceedings.” See Tex. R. App. P. 33.1(a) (to preserve complaint for appellate review, there must be a timely request, objection, or motion with sufficient specificity to make trial court aware of the complaint).” Franco v. Orozco, No. 14-21-00696-CV, 2023 Tex. App. LEXIS 1602, at *8-9 (Tex. App.—Houston [14th Dist.] Mar. 14, 2023, no pet. h.)
You have to comply other pertinent rules:
Findings: “On appeal, Guerrero asserts that her evidence proved that Oralia’s signatures on the Will—both on the first and second pages—were forged, thus undermining the probate court’s conclusion that the Will was valid. We construe Guerrero’s brief to challenge the legal and factual sufficiency of the probate court’s implied findings and conclusions rejecting her forgery defense. But, as discussed, Guerrero failed to request additional findings after the probate court filed its findings of fact, which contained no elements of Guerrero’s forgery defense. When a trial court does not include in its findings any elements of a party’s ground of recovery or affirmative defense, and the party fails to request additional findings, not only does the failure to request additional findings waive the party’s complaint regarding the lack of findings, but the failure also waives any complaint that the party has regarding the sufficiency of the evidence to support [*20] the ground of recovery or the defense….Thus, Guerrero has waived any error with respect to her forgery defense, including her challenge to the sufficiency of the probate court’s implied rejection of that defense.” Guerrero v. Salinas, No. 01-21-00563-CV, 2023 Tex. App. LEXIS 1619, at *19-21 (Tex. App.—Houston [1st Dist.] Mar. 14, 2023, no pet. h.)
All for now. Y’all stay safe, and enjoy the weekend.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com