Catching Up: Error Preservation in Texas Civil Cases, 10/2/21-10/9/21

December 2, 2021

Dearly Beloved:

Table of Contents

Here is a very helpful case as to what will serve as an offer of proof


Never underestimate the power of the legal sufficiency objection first raise in a motion for new trial

Legal Sufficiency (Expert)

Also never underestimate the power of getting an express ruling on the record concerning your complaint-and the need to obtain that ruling


Legal Sufficiency (Expert)

So long as you appropriately object to a recovery of fees by the other side, you do not waive that objection by having sought fees under the Declaratory Judgment Act yourself

Attorney Fees

In a restricted appeal, the complaining party in a parental right termination case by definition does not have to preserve a complaint about lack of notice of a hearing

Notice (Restricted Appeal)

You have to comply with the pertinent rules

Jury Charge

Your complaint must be timely

Summary Judgment

While I won’t profile them here, opinions for this week reaffirmed that you must make complaint about the following in the trial court

Adverse Possession
Statute of Frauds


Here is a very helpful case as to what will serve as an offer of proof:

Evidence: “Preliminarily, Crowe asserts that Sellers failed to preserve his complaint regarding the exclusion of [*11] evidence because he failed to make an offer of proof. We disagree.

Texas Rule of Evidence 103 states that a party may preserve complaint on the exclusion of evidence by informing the court of its substance by an offer of proof “unless the substance was apparent from the context.” Tex. R. Evid. 103(a)(2). The reporter’s record from the hearing demonstrates that Sellers’s attorney made numerous efforts to offer evidence. Sellers’s attorney repeatedly stated that there was conflicting evidence about the amount of arrearages as reported by Harris County, that there were child support payments in Florida, and that there was evidence that the children may have been adopted in the 1970s. See R.G. 362 S.W.3d at 124-25 (similar exclusion of evidence complaint was preserved from context apparent in reporter’s record). Sellers’s attorney also stated that his client had evidence of payments made in the 1970s and early 1980s. From the context of the hearing, it was apparent that Sellers intended to show that the calculation in the notice was incorrect, that he had made child support payments, and that perhaps his obligation to pay support changed when his children were adopted. His efforts to offer evidence were fruitless because the trial court determined that it lacked [*12] jurisdiction to consider his defenses or hear evidence relating to the amount of arrearages. The substance of Sellers’s evidence was apparent from the context of the record. See Tex. R. Evid. 103(a)(2). Accordingly, Sellers preserved his complaint for our review.” Sellers v. Crowe, No. 01-19-00473-CV, 2021 Tex. App. LEXIS 8096, at *10-12 (Tex. App.—Houston [1st Dist.] Oct. 5, 2021)

Never underestimate the power of the legal sufficiency objection first raise in a motion for new trial:

Legal Sufficiency (Expert): “Complaints of legal and factual insufficiency of evidence raised in a motion for new trial generally are preserved for review. Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 324(b); …Under a legal sufficiency analysis, an expert’s opinion constitutes no more than a mere scintilla of evidence if the opinion is not reliable under the same standards that govern admissibility, is speculative or conclusory on its face, or is based on unfounded assumptions….A distinction exists between challenges to an expert’s scientific methodology and no-evidence challenges alleging the face of the record demonstrates that expert opinion lacks probative value. …When expert opinion is admitted in evidence without objection, it may be considered probative evidence even if the basis for the opinion is unreliable. …When a reliability challenge requires evaluation of the underlying methodology, technique, or foundational data used by an expert, failure to object at trial waives appellate review because the trial court should conduct this analysis. … Failure to object does [*8] not waive legal sufficiency challenges to the reliability of expert opinion where there is no need to go beyond the record to test whether the opinion is conclusory or speculative on its face, contains fatal gaps in analysis, or is simply incorrect. …A judgment may not be supported by conclusory expert testimony, even if a party did not object to admission of such testimony, because it is considered no evidence. …

While Jackson failed to object to the admissibility of the experts’ testimony or the reliability of their underlying data and methodologies, his specific legal sufficiency challenges raised in Issues One and Two can be evaluated on the face of the record before us and we will address them.

B. Standards of Reviewing Expert Testimony

Although expert testimony often provides valuable evidence, it is the basis of the witness’s opinion rather than the witness’s qualifications or bare opinions alone that can settle an issue as a matter of law; therefore a claim will not stand or fall on the mere ipse dixit of a credentialed witness. …If an expert opinion has no basis, the basis offered provides no support, or the opinion assumes facts contrary to conclusively proven [*9] facts, it is conclusory and cannot be considered probative evidence. …Opinion testimony that is conclusory or speculative is “incompetent evidence” because it does not tend to make the existence of a material fact “more probable or less probable.” See Tex. R. Evid. 401;….” In re Jackson, No. 05-20-00519-CV, 2021 Tex. App. LEXIS 8177, at *7-9 (Tex. App.—Dallas Oct. 6, 2021)

So long as you appropriately object to a recovery of fees by the other side, you do not waive that objection by having sought fees under the Declaratory Judgment Act yourself:

Attorney Fees: “Appellees argue that, because Appellants filed counterclaims under the DJA, Appellants forfeited their right to complain about the award of attorney’s fees under that statute. We recognize that both [*23] DEA and Appellants improperly relied on the DJA as a basis to resolve the question of title to the disputed leasehold interests and that Appellants arguably invited error by the trial court when they filed counterclaims for declaratory relief. However, Appellants also apprised the trial court of the error of awarding fees on Appellants’ trespass-to-try-title counterclaims at a time when the trial court could have avoided the error. See Lake Livingston Props., Inc. v. Stephen Hills Prop. Owner’s Ass’n, Inc., No. 09-15-00304-CV, 2016 Tex. App. LEXIS 13000, 2016 WL 7177698, at *3 (Tex. App.—Beaumont Dec. 8, 2016, no pet.) (mem. op.) (holding that, even though both parties invited error by invoking the DJA to resolve an issue of title to real property, the trial court could have “corrected” the error “had either of the parties timely advised the trial court of an objection to not resolving the dispute under the Property Code”); HECI Expl. Co. v. Clajon Gas Co., 843 S.W.2d 622, 638 (Tex. App.—Austin 1992, writ denied) (holding that the appellant preserved its complaint as to the award of attorney’s fees by raising an objection in response to the appellee’s summary-judgment motion and obtaining a ruling on the issue).

Because the trial court erred when it awarded attorney’s fees to Appellees, we sustain Appellants’ second issue.” King Operating Corp. v. Double Eagle Andrews, LLC, No. 11-19-00336-CV, 2021 Tex. App. LEXIS 8201, at *22-23 (Tex. App.—Eastland Oct. 7, 2021)

Also never underestimate the power of getting an express ruling on the record concerning your complaint-and the need to obtain that ruling:

Affidavit: “We will address jointly the Leuschners’ objections that Hobbs’s and Lemin’s affidavits are deficient because they do not recite that the facts stated therein are true and correct. An affidavit that does not affirmatively state that the facts contained therein are true and correct is a form defect that can be waived. …The record before us reflects that the Leuschners did not obtain a [*14] ruling on their objections to Hobbs’s and Lemin’s affidavits and did not have the trial court enter a written, signed order sustaining the objections. …Because the objection was waived, and it was the Leuschners’ sole objection to Hobbs’s affidavit, the affidavit will remain part of the evidence….The Leuschners’ general objection to Limen’s lack of personal knowledge is an objection to form and was waived by not obtaining a ruling.” City of Robinson v. Leuschner, No. 10-19-00278-CV, 2021 Tex. App. LEXIS 8211, at *13-15 (Tex. App.—Waco Oct. 6, 2021)

Legal Sufficiency (Expert): “Chang also argues Huang waived his complaints about “the content or scope of the injunction” by failing to raise those complaints in the trial court. However, the trial court’s judgment specifically notes, “[Huang’s] objection to the injunction is overruled.” We conclude this argument is properly preserved. See Tex. R. App. P. 33.1(a) HN6 (to preserve complaint for appellant review, the record must show the appellant timely raised the complaint below and the trial court ruled on it).” Huang v. Chang, No. 04-20-00129-CV, 2021 Tex. App. LEXIS 8129, at *15 n.2 (Tex. App.—San Antonio Oct. 6, 2021)

In a restricted appeal, the complaining party in a parental right termination case by definition does not have to preserve a complaint about lack of notice of a hearing:

Notice (Restricted Appeal): “While the issue can be waived, in the absence of waiver, failure to give proper notice “constitutes lack of due process and is grounds for reversal for new trial.” Id. (citing Custom-Crete, Inc. v. K-Bar Servs. Inc., 82 S.W.3d 655, 659 (Tex. App.—San Antonio 2002, no pet.)). In recent years, we affirmed an order terminating parental rights when the parent waived [*9] error, see In re M.M.M., No. 05-19-00392-CV, 2019 Tex. App. LEXIS 8772, 2019 WL 4744694, at *3-5 (Tex. App.—Dallas Sept. 30, 2019, pet. denied) (mem. op.), but did so in the context of an ordinary, not restricted, appeal. 2019 Tex. App. LEXIS 8772, [WL] at *2 n.5.

In this restricted appeal, we find In re M.M.M. distinguishable and decline to apply its waiver analysis in this case.5 As discussed above, under rule 30, a restricted appeal is available only to “[a] party who did not participate—either in person or through counsel—in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a).” Tex. R. App. P. 30. As our sister court noted in Boyo v. Boyo, 196 S.W.3d 409, 415 (Tex. App.—Beaumont 2006, no pet.), “[t]he procedure for a restricted appeal would serve little purpose if we require a party to show preservation of the challenge in the trial court before filing a restricted appeal.” We agree.

Here, Mother and the Department both agree that Mother had previously appeared in this contested case, was not provided proper notice of the trial setting, and that this error is apparent on the face of the record. After reviewing the record ourselves, we agree.” In the Interest of J.R.B., No. 05-21-00515-CV, 2021 Tex. App. LEXIS 8234, at *8-9 (Tex. App.—Dallas Oct. 7, 2021)

You have to comply with the pertinent rules:

Jury Charge: “The Castellanoses argue, however, that because they conclusively proved that the cost to cure was $300,000—the cost to elevate the house—they did not need to preserve error in the charge. They rely on Rule of Civil Procedure 279, which states: “Upon appeal all independent grounds of recovery or of defense not [*16] conclusively established under the evidence and no element of which is submitted or requested are waived.” Tex. R. Civ. P. 279. The Castellanoses argue that this rule exempts them from preservation of error and permits them to argue on appeal that the court erred by failing to give the jury their requested instruction on damage to the remainder. We disagree. HN8 “The right of trial by jury exists only with respect to disputed questions of fact.” Thorne v. Moore, 101 Tex. 205, 105 S.W. 985, 987 (Tex. 1907). The failure to submit a ground of recovery or defense would not be waiver if the ground of recovery or defense is conclusively proven and could properly be the subject of a post-verdict motion such as a motion for judgment notwithstanding the verdict or a motion to disregard a jury finding. But the Castellanoses did not file either such motion in the trial court.” Castellanos v. Harris County, No. 01-20-00414-CV, 2021 Tex. App. LEXIS 8185, at *15-16 (Tex. App.—Houston [1st Dist.] Oct. 7, 2021)

Your complaint must be timely:

Summary Judgment: “In their first issue, the Hashmis challenge the Texas Supreme Court’s holdings in Moayedi v. Interstate 35/Chisam Rd., L.P., 438 S.W.3d 1, 6 (Tex. 2014). The Hashmis submit that Moayedi’s holdings concerning waiver of offsets violate the Due Process and Takings Clauses of the United States and Texas Constitutions.1

However, the Hashmis raised this objection for the first time in a motion for new trial following the final summary judgment. “[I]n an appeal from a summary judgment, [*3] an objection raised for the first time in a motion for new trial is untimely and insufficient to preserve the alleged error for review.” Williamson v. New Times, Inc., 980 S.W.2d 706, 712 (Tex. App.—Fort Worth 1998, no pet.); see Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 537 (Tex. 2019); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998). Generally, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 141 n.38 (Tex. 2014) (quoting Tex. R. App. P. 33.1(a)(1)(A)). We therefore hold that this issue is unpreserved, and we overrule it without regard to its merits.” Fernandez v. Indep. Bank, No. 02-20-00375-CV, 2021 Tex. App. LEXIS 8228, at *2-3 (Tex. App.—Fort Worth Oct. 7, 2021)

All for now.  Y’all stay safe and well, and enjoy the holiday season.

Yours, Steve Hayes; 817/371-8759;


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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