March 27, 2023
Dear Friends:
Table of Contents
If a trial court sustains your opponents’ objections to your summary judgment evidence, do you have to object to that ruling in order to preserve a complaint about the ruling for appeal? Some courts say yes, some no–here the Fort Worth Court reaffirms its presence in the latter camp
Summary Judgment Evidence
You have to comply other pertinent rules
Evidence
Pleadings
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Deed
Discovery
Necessary Parties
Evidence
Permanent Injunction
Jury Charge
Capacity
Summary Judgment
Summary Judgment
Notice
Standard of Care
Texas Citizens Participation Act
Blurbs
If a trial court sustains your opponents’ objections to your summary judgment evidence, do you have to object to that ruling in order to preserve a complaint about the ruling for appeal? Some courts say yes, some not–here the Fort Worth Court reaffirms its presence in the latter camp:
Summary Judgment Evidence: “In its response, L.A. Fitness argues that, among other things, Hill’s failure to object to the trial court’s ruling on L.A. Fitness’s objections did not preserve error, referring us to Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 568-69 (Tex. App.—Amarillo 2013, pet. denied), and Rollins v. Uribe, No. 12-19-00262-CV, 2020 WL 1283904, at *2 (Tex. App.—Tyler Mar. 18, 2020, no pet.) (mem. op.), to support its waiver argument. Both of those cases rely on Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.), which this court has declined to follow on that basis. Miller v. Great Lakes Mgmt. Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *2 n.4 (Tex. App.—Fort Worth Mar. 16, 2017, no pet.) (mem. op.) (“We do not believe a party is required to object to the sustaining of an objection in order to complain of the sustaining of the objection on appeal; to the extent these decisions by our sister courts hold otherwise, we decline to follow them.”); see Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 60 S. Tex. L. Rev. 1, 63 (2019) (noting split in authority and observing that “[t]he better reasoned approach should be that there is no requirement. Summary judgment practice tends to mirror trial court procedure and a lawyer need not object to a ruling sustaining an objection at trial to preserve error.”); see also Browder v. Moree, 659 S.W.3d 421, 423 (Tex. 2022) (noting, in jury-trial-demand context, that “neither our procedural rules nor this Court’s decisions require a party that has obtained an adverse ruling from the trial court to take the further step of objecting to that ruling to preserve it for appellate review”).” Hill v. Fitness Int’l, No. 02-22-00142-CV, 2023 Tex. App. LEXIS 1906, at *9 n.4 (Tex. App.—Fort Worth Mar. 23, 2023, no pet. h.)
You have to comply other pertinent rules:
Evidence: “In his first issue in No. 02-21-00408-CV, Husband complains about the trial court’s exclusion of his tracing expert’s testimony….Wife therefore objected to Turner’s proposed testimony under civil procedure rules 194.2 and 195, as well as Alvarado v. Farah Manufacturing Co., 830 S.W.2d 911, 914 (Tex. 1992) (op. on reh’g), and Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993). After hearing Husband’s response, the trial court sustained the objection. Husband’s counsel asked to make an offer of proof, and the trial judge stated, “You may do that at a point when we take a recess.” However, no record of an offer of proof was taken. To preserve error in excluding evidence, a party must make an offer of proof unless the substance of the evidence is apparent from the context. Tex. R. Evid. 103(a)(2)….Here, the substance of Turner’s proposed testimony was not apparent [*14] from the context. Thus, Husband was required to make an offer of proof on the record. Tex. R. Evid. 103(a)(2). Because he did not, Husband failed to preserve this complaint for appeal.” S.T. v. H.K., Nos. 02-21-00408-CV, 02-21-00420-CV, 02-22-00010-CV, 2023 Tex. App. LEXIS 1915, at *12-14 (Tex. App.—Fort Worth Mar. 23, 2023, no pet. h.)
Pleadings: “In his first issue, Father contends the trial court erred in granting a geographical restriction that Mother did not request in her pleadings. When issues not raised in pleading are tried by consent, they “shall be treated in all respects as if they had been raised in the pleadings.” TEX. R. CIV. P. 67. During the trial, Mother testified numerous times, without any objection by Father as to lack of pleadings, she wanted the court to grant her the right to determine the Child’s residency in Liberty County. We must conclude Father’s complaint regarding a lack of pleadings is not preserved and the issue of geographic restriction was tried by consent. See Compass Bank v.Nacim, 459 S.W.3d 95, 113 (Tex. App.-El Paso 2015, no pet.) (stating that trial by consent applies “when it clearly appears from the record as a whole that the parties tried an unpled issue by consent”).” In re Cote, No. 08-22-00016-CV, 2023 Tex. App. LEXIS 1935, at *8 (Tex. App.—El Paso Mar. 24, 2023, no pet. h.)
All for now. Y’all have a great week.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com