October 25, 2022
Dear Friends:
Owing to the demands of the pesky day job, I fell way behind. This installment will mostly catch me up on error preservation holdings in Texas civil cases, save for the last week in September or so.
Table of Contents
Lack of subject matter can first be raised on appeal–even by the party who brought the suit in the first place, and even if it is raised to affirm the granting of a motion for summary judgment which did not mention the lack of subject matter jurisdiction. And, while constitutional arguments typically cannot first be raised on appeal, a separation of powers argument can–because it implicates the trial court’s jurisdiction
Jurisdiction
Legal and Factual Sufficiency
Separation of Powers
Texas Citizens Participation Act
A complaint that an affidavit is conclusory can first be raised on appeal
Affidavit
Keep in mind who has the burden of preserving a complaint–and who does not
Texas Citizens Participation Act
The following discussion reminds us that objections as to the form of summary judgment evidence must be preserved in the trial court, while objections to the substance of such evidence can first be raised on appeal
Evidence
Legal Sufficiency/Expert
Here is a really unusual situation, which warns us all–trial court and parties–of the problems associated with alternative filing arrangements, even when done with the best of intentions
Order Regarding Email Filing
Here is a case which found a discovery objection was not obscure (and, by implication, sufficient)
Discovery
You have to bring your complaint to the trial court’s attention– getting a ruling are two ways to make sure you did so
Turnover Order
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 to do so before the other side does something to foreclose the trial court’s ability to rule
Evidence
New Trial
Your complaint must be timely, and with evidentiary objections that means you must get a running objection and object to subsequent similar evidence
Res Judicata
While I won’t profile them here, opinions since the last blog reaffirmed that you must make a complaint about the following in the trial court (I repeat the pertinent topics to give you an idea how often this failure comes in various areas)
Affidavit
Affidavit
Assigned Judge
Best Interest of the Child
Charging Order
Constitution
Evidence
Evidence
Evidence
Evidence
Evidence
Evidence
Evidence
Expert
Expert
Factual Sufficiency
Factual Sufficiency
Findings
Jurat
Jury Argument
Legal Sufficiency
Mistrial
Notice
Response
Blurbs
Lack of subject matter can first be raised on appeal–even by the party who brought the suit in the first place, and even if it is raised to affirm the granting of a motion for summary judgment which did not mention the lack of subject matter jurisdiction. And, while constitutional arguments typically cannot first be raised on appeal, a separation of powers argument can–because it implicates the trial court’s jurisdiction:
Jurisdiction: “The City nonetheless argues that dismissal of Branch’s suit is proper because the tangible personal property waiver does not apply for two reasons. The City argues the motor vehicle and personal property waivers are mutually exclusive and further that “Houston itself did not ‘use’ the golf cart.” In considering grounds for reversal on appeal, we are ordinarily limited to those grounds expressly set forth in the summary judgment motions, answers, or other responses. See Tex. R. Civ. P. 166a(c);….The City did not present these arguments to the trial court either in its summary judgment motion or during the summary judgment hearing. Instead, the City moved for summary judgment solely on the motor vehicle waiver because that was the only immunity waiver Branch had pleaded when the City filed its motion.
Lack of subject matter jurisdiction, however, cannot be waived and may be raised for the first time on appeal….As the Texas Supreme Court has clarified, because immunity from suit implicates a court’s jurisdiction, appellate courts must consider all of a defendant’s immunity arguments on appeal, whether the governmental entity raised other jurisdictional arguments in the trial court or none at all….Thus, we must consider the City’s jurisdictional argument, raised for the first time on appeal, that the personal property waiver does not waive its immunity in this case.” City of Hous. v. Branch, No. 01-21-00255-CV, 2022 Tex. App. LEXIS 6709, at *25-26 (Tex. App.—Houston [1st Dist.] Sep. 1, 2022, no pet. h.)
Legal and Factual Sufficiency: “The Department contends that, because Mother never asked for a geographical restriction, she has waived any challenge to its absence. However, because the Youngs intervened in this case and sought to be named the sole managing conservators and Section 153.371 of the Texas Family Code gave the court the discretion to determine whether or not to impose a geographical restriction, the issue was before the trial court. In addition, because this was a civil, nonjury case, Mother’s complaints about the legal or factual insufficiency of the evidence supporting the trial court’s judgment may be asserted for the first time on appeal. See Tex. R. App. P. 33.1(d).” In the Int. of B.B., No. 06-22-00029-CV, 2022 Tex. App. LEXIS 7414, at *7 n.5 (Tex. App.—Texarkana Oct. 6, 2022, no pet. h.)
Separation of Powers: “Separation of Powers Clause. Next, the Department argues the trial court’s ankle monitor orders violate the Separation of Powers Clause of the Texas Constitution because they require the Department to enter into a contractual agreement with a specific service provider. Again, the Department did not present this complaint to the trial court. Nevertheless, the separation of powers doctrine is a limit on a trial court’s jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Board, 852 S.W.2d 440, 444 (Tex. 1993). Because a Separation of Powers Clause complaint implicates the trial court’s jurisdiction, it may be raised for the first time on appeal. See In re Pixler, 584 S.W.3d 79, 83-84 (Tex. App.—Fort Worth 2018, orig. proceeding) (stating that a lack of subject-matter jurisdiction is fundamental error that can be raised for the first time in the original proceeding context); see also In re Gonzalez, 115 S.W.3d 36, 41 (Tex. App.—San Antonio 2003, orig. proceeding) (holding error was waived by relator’s failure to object when error was procedural rather than jurisdictional).” In re Tex. Dep’t of Family & Protective Servs., No. 04-22-00341-CV, 2022 Tex. App. LEXIS 7540, at *5 (Tex. App.—San Antonio Oct. 12, 2022, no pet. h.)
Texas Citizens Participation Act: “The Tenant’s leading argument is that the district court lacked subject matter jurisdiction. The Tenant did not bring this jurisdictional challenge during the proceedings below. In fact, the Tenant was the party who initiated the action in the district court. Nevertheless, subject matter jurisdiction cannot be waived and can be challenged at any time.” Williams v. Jimglo Yellowstone, LLC, No. 14-21-00375-CV, 2022 Tex. App. LEXIS 7012, at *2-3 (Tex. App.—Houston [14th Dist.] Sep. 20, 2022, no pet. h.)
A complaint that an affidavit is conclusory can first be raised on appeal:
Affidavit: “RJA asserts that Vaccaro did not preserve this complaint because he did not object below to Meyer’s affidavit or obtain a ruling. See Tex. R. App. P. 33.1. RJA is correct that a party must object in the trial court to preserve a complaint about a defect in an affidavit’s form, such as a complaint that the affidavit is not based on personal knowledge….However, conclusory evidence is considered substantively defective, and a party need not object to substantively-defective evidence to complain about it on appeal….Meyer’s statement of her “understanding” is conclusory and is thus no evidence.” Vaccaro v. Raymond James & Assocs., No. 02-22-00023-CV, 2022 Tex. App. LEXIS 7630, at *8 (Tex. App.—Fort Worth Oct. 13, 2022, no pet. h.)
Keep in mind who has the burden of preserving a complaint–and who does not:
Texas Citizens Participation Act: “As an initial matter, the HOA contends that the homeowners have waived their argument that the TCPA does not apply to their claims because the claims are not based on or in response to the HOA’s rights of speech, association, or petition. In their response to the HOA’s motion to dismiss, the homeowners generally “dispute[d] the applicability of the TCPA to this matter,” but did not advance significant argument “challenging its applicability to this matter, except to state that, under the Association’s logic, every act by every [property owners’ association] in Texas is now subject to scrutiny under the TCPA, even when the Association’s acts (or omissions) have nothing substantively to do with any exercise of constitutional rights.”…Here, however, the homeowners were nonmovants and did not bear the burden in the trial court to show the non-applicability of the TCPA. See Tex. Civ. Prac. & Rem. Code § 27.005 (movant has the burden). Thus, the homeowners did not waive error regarding the applicability of the TCPA.” Welsh v. River Hollow Ass’n, No. 14-21-00165-CV, 2022 Tex. App. LEXIS 6745, at *6-7 (Tex. App.—Houston [14th Dist.] Sep. 1, 2022, no pet. h.)
The following discussion reminds us that objections as to the form of summary judgment evidence must be preserved in the trial court, while objections to the substance of such evidence can first be raised on appeal:
Evidence: “For preservation purposes, objections to “form” and “substance” are treated differently. …Objections to the form of summary judgment evidence are preserved for appellate review only if such objections are made and ruled on in the trial court….On the other hand, defects in the substance of the evidence do not require a written ruling, and such objections may be raised for the first time on appeal….Substantive defects are those that leave the evidence legally insufficient and include affidavits which are nothing more than legal or factual conclusions….In the court below, appellees objected to appellants’ affidavits as not based on personal knowledge, conclusory, and as testimony of an interested witness that did not comport with Tex. R. Civ. P. 166a(c)…. An objection to the testimony of an interested witness is an objection to a defect of form…. Likewise, the absence of personal knowledge is a form defect…. Appellants also objected to the form of appellees’ affidavits. Neither party obtained a ruling on their objections. Accordingly, any challenge to form defects was not preserved for our review, and we consider only whether the affidavits were incompetent summary judgment evidence because they were conclusory….A conclusory statement is one that does not provide the underlying facts to support the conclusion….Conclusory statements in affidavits are not competent evidence to support summary judgment because they are not credible or susceptible to being readily controverted.”Hartsfield v. Hartsfield Cabinet LLC, No. 05-21-00896-CV, 2022 Tex. App. LEXIS 6864, at *5-7 (Tex. App.—Dallas Sep. 8, 2022, no pet. h.)
Here is a really unusual situation, which warns us all–trial court and parties–of the problems associated with alternative filing arrangements, even when done with the best of intentions:
Order Regarding Email Filing: “ Sabre contends that American waived its complaint about the Email Order by complying with it without objection. Error-preservation rules apply to original proceedings….Thus, generally, to be considered in an original proceeding, a complaint must have been presented to the trial court by timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). A request, objection, or motion is considered timely if it is asserted when the potential error becomes apparent….Here, from the very beginning of the suit, American was focused on expediting the proceedings. While it is true that American followed the Email Order for almost four months, the parties were serving the filings to each other via email, in accordance with the protections agreed to in the protective order. Therefore, the parties were able to access the documents for purposes of the litigation. And no disputes arose over the timeliness or accuracy of the emailed documents. But the nature and scope of, and harm from, the error [of the Order requiring the email filing of documents with the court coordinator, without making appropriate arrangements for file-marking and making them available for timely retrieval) became apparent when American filed the appeal of the trial court’s sua sponte sealing order. At that time, American filed the Transfer Motion and the Designation, attempting to have the emailed documents filed in a clerk’s record in this court. American has represented to this court–without dispute–that it has made “multiple requests” for a ruling on the Transfer Motion. Despite the fact that the clerk’s record in the appeal was due on July 1, 2022, the trial court did not rule on the Transfer Motion before this court had to grant American’s Unopposed Motion for Transfer of Designated Trial Court Records filed in the appeal. Under these particular circumstances, we conclude that American raised this very issue with the trial court at the time the error became apparent and that the trial court refused to rule on American’s complaint. See Tex. R. App. P. 33.1(a)(1), (2)(B).” In re Am. Airlines, Inc., No. 02-22-00201-CV, 2022 Tex. App. LEXIS 6885, at *14-17 (Tex. App.—Fort Worth Sep. 12, 2022, no pet. h.)
Here is a case which found a discovery objection was not obscure (and, by implication, sufficient):
Discovery: “Next, Chock’s claims that Burkett’s objections to discovery were waived by obscuring good objections with numerous unfounded ones. See TEX.R.CIV.P. 193.2(e). Its argument in support of that claim, however, focuses more on what it claims Burkett failed to produce in discovery. The failure to produce promised discovery is addressed through a motion to compel, and not a waiver argument under Rule 193.2. Moreover, all Burkett’s objections to the several discovery requests were in a single paragraph that in multiple ways urged a relevance objection. We simply disagree that the relevance objection was obscured. Chock’s second cross point is overruled.” In re Burkett, No. 08-21-00209-CV, 2022 Tex. App. LEXIS 7452, at *14 (Tex. App.—El Paso Oct. 6, 2022, no pet. h.)
You have to bring your complaint to the trial court’s attention– getting a ruling are two ways to make sure you did so:
Turnover Order: “In his third and fourth issues, Myers contends the trial court abused its discretion by signing the Turnover Orders because their provisions are ambiguous, contradictory, or overbroad. Myers included some of these objections to the Turnover Orders in his Motion to Modify and Clarify Amended Order Appointing Receiver, filed with the trial court on July 8, 2020. The clerk’s record indicates a hearing on the motion was scheduled, later cancelled, and then re-scheduled. But before the re-scheduled hearing was to take place, Myers appealed. Our record contains no indication that the hearing occurred: we have no reporter’s record or order ruling on the motion generally or any objections individually. In the absence of a ruling, Myers presents nothing for our review. Tex. R. App. P. 33.1(a)(2).” Myers v. HCB Real Holdings, LLC, Nos. 05-20-00419-CV, 05-20-01046-CV, 2022 Tex. App. LEXIS 7015, at *10-11 (Tex. App.—Dallas Sep. 19, 2022, no pet. h.)
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 to do so before the other side does something to foreclose the trial court’s ability to rule:
Evidence: “To preserve error on appeal, a party must timely object and obtain an explicit or implicit ruling from the trial court. Tex.R.App.P. 33.1. If the trial court refuses to rule on the objection, the complaining party must object to the refusal. Id. Here, LG Chem did not object to the trial court’s decision to rule on its objections at a later time. Instead, LG Chem argues the court’s failure to rule on its objections amounts to an implicit overruling. However, the trial court’s inaction is not indicative of its impliedly overruling LG Chem’s objections. …A court’s implicit ruling may be sufficient to preserve error on appeal…. .But the implicit ruling must be ascertainable from the record….The Texas Supreme Court has said that a ruling might be implied from the record when the implication is “clear.” Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018)(citing In re Z.L.T., 124 S.W.3d at 165)(finding where the trial court proceeded to trial without ruling on the request for a bench warrant, it was clear the trial court implicitly denied the request).
On the other hand, when a court rules on a motion without first addressing a party’s objections to the evidence, the court’s disposition on the objections is not as clear. See id. (observing an implied overruling of objections to summary judgment evidence could not be inferred where the trial court granted the summary judgment motion because granting the motion could just as easily be understood to mean the trial court did not find a fact issue).
Here, the trial court issued an order stating it considered the evidence submitted and sustained the special appearance. But Appellant’s special appearance evidence consisted of fifteen exhibits, eight of which LG Chem objected to and none of which the court addressed in the proposed order granting the objections or in its order granting the special appearance. Accordingly, it is not clear whether the trial court granted the special appearance after determining Appellant’s evidence was unreliable or unauthenticated or because the evidence was otherwise insufficient for finding personal jurisdiction….Further, to the extent that the trial court’s failure to rule on the objections, even after LG Chem brought them to the court’s attention, amounts to a refusal to rule, LG Chem did not preserve error by objecting to the trial court’s refusal….Because the trial court did not rule on LG Chem’s objections to Appellant’s evidence, the evidence remains part of the record for this appeal. ” Hause v. LG Chem, Ltd., No. 08-20-00197-CV, 2022 Tex. App. LEXIS 7461, at *7-8 (Tex. App.—El Paso Oct. 6, 2022, no pet. h.)
Evidence: “The trial court signed an order in which it denied the Jurisdictional Plea only as to the takings claim. In this order, the trial court did not rule on any of the Gonzalez Parties’ objections. The next day, the Authority filed a notice of appeal, perfecting this interlocutory appeal under Civil Practice and Remedies Code section 51.014(a)(8), thus triggering the stay under section 51.014(b) of “the commencement of a trial in the trial court [and] all other proceedings in the trial court pending resolution of [the] appeal.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b) (West, Westlaw through 2021 C.S.); see id. § 51.014(a)(8) (allowing an appeal from an interlocutory order by a county court at law that grants or denies a plea to the jurisdiction filed by a governmental unit). Two days later the Gonzalez Parties filed a written request asking the trial court to rule on their objections to the Authority’s evidence and objecting to the trial court’s alleged refusal to rule on the objections. On the same day as the written request, the Authority moved to strike this motion based on the stay of all proceedings triggered by the Authority’s appeal. Under the plain text of section 51.014(b) and Supreme Court of Texas precedent interpreting it, the filing of the Authority’s notice of appeal triggered a statutory stay of all proceedings in the trial court pending resolution of the appeal, and there are no exceptions to this stay….A filing by a party in the trial court is a proceeding barred by this stay….The Authority timely objected to the Gonzalez Parties’ violation of the stay by filing the document containing their objection to the trial court’s alleged refusal to rule on their evidentiary objections….Therefore, this document is without force and is ineffective to preserve error on the Gonzalez Parties’ objections to form…. The Gonzalez Parties did not obtain an adverse ruling on their objections to form, and they did not lodge an effective objection to any alleged refusal by the trial court to rule on the objections to form. Therefore, the Gonzalez Parties failed to preserve error in the trial court as to their objections to form. See Tex. R. App. P. 33.1(a)(2); ….In any event, the trial court would not have abused its discretion if it had overruled the Gonzalez Parties’ objections to form. The Gonzalez Parties’ objections to the form of the evidence do not provide an alternative basis for affirming the trial court’s order denying the Jurisdictional Plea as to the Gonzalez Parties’ takings claims.” San Jacinto River Auth. v. Gonzalez, No. 14-20-00414-CV, 2022 Tex. App. LEXIS 7404, at *23-25 (Tex. App.—Houston [14th Dist.] Oct. 6, 2022, no pet. h.)
New Trial: “Here, Sonya did not file a motion for new trial. Brittney filed a motion for new trial but did not bring it to the trial court’s attention or obtain a hearing on her motion. Nevertheless, the overruling by operation of law of a motion for new trial may preserve for appellate review a complaint raised in the motion “only if the taking of evidence was not necessary to properly present the complaint in the trial court.” Magna Donnelly Corp. v. DeLeon, 267 S.W.3d 108, 114 (Tex. App.—San Antonio 2008, no pet.). Here, evidence was required on the question of whether Brittney and/or Sonya received notice….
As set forth above, a prerequisite for preserving error for appeal from denials of motions to set aside default judgments and grant new trials is that the movant must exercise diligence in having the motion heard by the court before the motion is overruled by operation of law. Brittney never called her motion for new trial to the trial court’s attention and never sought a hearing on the motion. Sonya did not file a motion for new trial. Under these circumstances, we conclude both appellants failed to preserve error on this issue.” In the Int. of M.J.E., No. 04-22-00008-CV, 2022 Tex. App. LEXIS 7378, at *6 (Tex. App.—San Antonio Oct. 5, 2022, no pet. h.)
Your complaint must be timely, and with evidentiary objections that means you must get a running objection and object to subsequent similar evidence:
Res Judicata: “On appeal here, the Wagners cite to the footnote in Exxon’s summary judgment response and argue that the indemnity claims pursued in the underlying suit are barred by res judicata. In response, Exxon contends that the Wagners (1) failed to conclusively prove res judicata, and (2) waived any res judicata defense.
The preclusive effect of a prior judgment is determined by the law of the state that issued the decision which, here, is Louisiana. See Purcell v. Bellinger, 940 S.W.2d 599, 601 (Tex. 1997) (per curiam); Charles Brown, L.L.P. v. Lanier Worldwide, Inc., 124 S.W.3d 883, 894 n.20 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Under Louisiana law, res judicata requires proof of the following: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 843 So.2d 1049, 1053 (La. 2003). “The doctrine of res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application.” McCalmont v. McCalmont, 297 So.3d 1057, 1063 (La. Ct. App. 2020) (internal quotation omitted).
Assuming without deciding that the March 2013 summary judgment satisfies the elements of res judicata in Louisiana, we conclude that the Wagners’ failure to timely raise the defense in the underlying proceeding constitutes waiver.
The doctrine of res judicata is not absolute; rather, the defense may be waived in certain circumstances. See Restatement (Second) of Judgments § 26 (1982); see also, e.g., In re DEK-M-Nationwide, Ltd., 627 S.W.3d 353, 363 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding) (applying section 26).11
Relevant here, res judicata does not bar a subsequent claim if “[t]he parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein[.]” Restatement (Second) of Judgments § 26(a)(1) (1982). A comment to this exception states:
A main purpose of the general rule stated in § 24 is to protect the defendant from being harassed by repetitive actions based on the same claim. The rule is thus not applicable where the defendant consents, in express words or otherwise, to the splitting of the claim.
* * *
Where the plaintiff is simultaneously maintaining separate actions based upon parts of the same claim, and in neither action does the defendant make the objection that another action is pending based on the same claim, the judgment in one of the actions does not preclude the plaintiff from proceeding and obtaining judgment in the other action. The failure of the defendant to object to the splitting of the plaintiff’s claim is effective as an acquiescence in the splitting of the claim.
Restatement (Second) of Judgment § 26 cmt. a (1982). “This exception essentially operates as a waiver where the parties fail to object at the outset of the subsequent litigation.” Ganske v. WRS Grp., Inc., No. 10-06-00050-CV, 2007 Tex. App. LEXIS 2991, 2007 WL 1147357, at *6 (Tex. App.—Waco Apr. 18, 2007, no pet.) (mem. op.). Waiver is necessary “to discourage unsavory tactical maneuvers,” such as when a party pursues separate litigation and then seeks to hide behind the first judgment rendered. Id. (citing In re Matter of Super Van Inc., 92 F.3d 366, 371 (5th Cir. 1996)).
This exception forecloses the res judicata defense advanced here. In the Louisiana litigation, the Wagners moved for summary judgment on the severed claims asserted against them by plaintiff M.J. Farms in November 2012 and Exxon filed its response (which contained the footnote referencing Exxon’s “contractual indemnification rights”) in February 2013. The trial court granted the Wagners’ summary judgment motion in March 2013.
When this judgment was signed, the proceedings in the underlying action were ongoing. The parties proceeded to trial on April 7, 2016, and trial lasted nine days. The Wagners first raised their res judicata defense in a supplement to their fifth amended answer filed on April 22, 2016 — the last day of trial.
As this timeline shows, the Wagners waited over three years after the signing of the operative judgment to assert their res judicata defense. During this period, the parties and the judicial system expended considerable resources as the case was prepared for and proceeded through trial. Permitting res judicata to be asserted at this late stage would undercut the goals the doctrine is intended to advance, i.e., the efficient resolution of lawsuits. See Restatement (Second) of Judgment § 26 cmt. a (1982); see also, e.g., John G. & Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 S.W.3d 268, 288-89 (Tex. 2002) (stating that the doctrine of res judicata serves “the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation”) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979)).
Therefore, the Wagners waived the defense of res judicata. See Restatement (Second) of Judgments § 26(a)(1) (1982). We overrule the Wagners’ second issue.
Wagner v. Exxon Mobil Corp., No. 14-21-00122-CV, 2022 Tex. App. LEXIS 6701, at *33-36 (Tex. App.—Houston [14th Dist.] Sep. 1, 2022, no pet. h.)
All for now. Y’all take good care.
Yours,
Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com