Error Preservation in Texas Civil Appeals, March 6, 2021

March 6, 2021

Dear Friends:

Table of Contents

Your opponent can first complain on appeal that the trial court’s judgment erred by dismissing all claims against all parties when your motion for summary judgment only sought judgment on the claims against your client

Judgment

Your complaint must be timely

Evidence

You have to get a ruling on your complaint

Discovery
Severance

You have to comply with other pertinent rules-including local rules

Motions

The lack of a reporter’s record is not fundamental error which can first be raised on appeal

Reporter’s Record

Never forget that your opponent can pursue a restricted appeal concerning an error which appears on the face of the record (and a restricted appeal, by definition, means it did not preserve error)-but if you intend to take advantage of the restricted appeal’s absolution from having to preserve such error, make sure you file a restricted appeal, as opposed to a regular appeal

Reporter’s Record

Blurbs

Your opponent can first complain on appeal that the trial court’s judgment erred by dismissing all claims against all parties when your motion for summary judgment only sought judgment on the claims against your client.

Judgment: “In issue seven titled “Defective Service of Citation,” Sorrow argues that the trial court erred by dismissing all claims and all parties in its final judgment [based on the Sheriff’s motion for summary judgment as to claims against the Sheriff] before all the parties had been served. . . . The issue raised by Sorrow is whether the trial court erred in dismissing the unserved defendants that Sorrow was actively attempting to serve with process. . . . the Sheriff’s motion for summary judgment understandably did not state a ground concerning the unserved defendants. The trial court, however, unequivocally rendered a final judgment under Lehmann: “This is a final order and disposes of all claims by and between all parties.” 39 S.W.3d at 192-93. The [*16] Sheriff did not seek summary judgment on behalf of the unserved defendants, yet the trial court sua sponte granted more relief than the Sheriff requested in the formation of the judgment, which in addition to granting the Sheriff’s interlocutory motion for summary judgment, also “dispose[d] of all claims by and between all parties,” i.e., disposed of all of Sorrow’s claims. . . . The supreme court does not require a non-movant to except to a motion for summary judgment that does not state grounds addressing all of non-movant’s claims. . . . The policy reason for this is simple, there is no error because movant can file a motion for either an interlocutory summary judgment, i.e., a partial summary judgment, or a final summary judgment. The non-movant has no burden to except on the basis that the motion is interlocutory, which is perfectly acceptable, and no burden to otherwise request, object, or move to preserve a complaint for appellate [*18] review. See Tex. R. App. P. 33.1(a). But does non-movant have to preserve a complaint for appellate review during judgment formation if the trial court sua sponte takes action outside the grounds in the motion for summary judgment, e.g., rendering a final summary judgment when the motion on its face states only grounds to support an interlocutory judgment? . . . [I]t is nonetheless this court’s precedent that no additional request, objection, or motion is necessary to preserve a complaint for appellate review that the trial court erred in rendering a final summary judgment when the motion did not state specific grounds to support summary judgment on all of non-movant’s claims. Accordingly, we hold that the complaint was preserved and the trial court committed harmful error in dismissing the unserved defendants.” Sorrow v. Harris Cty. Sheriff, No. 14-18-00901-CV, 2021 Tex. App. LEXIS 1497, at *14-19 (Tex. App.-Houston [14th Dist.] Mar. 2, 2021)

Your complaint must be timely:

Evidence: “Yet, Supertrack argued here that exhibit 3 was inadmissible and non-probative. This was allegedly so because the exhibit was 1) hearsay outside the scope of Texas Rule of Evidence 803(6) and 2) not a summary admissible under Texas Rule of Evidence 1006. As for the Rule 1006 contention, it was not urged at trial but rather in a motion to reconsider. Because an objection to evidence must be urged at the earliest opportunity and Supertrack waited until the trial ended before mentioning [*6] Rule 1006, the complaint was not preserved. Laven v. THBN, LLC, No. 14-13-00440-CV, 2014 Tex. App. LEXIS 13281, at *9-10 (Tex. App.-Houston [14th Dist.] Dec. 11, 2014, no pet.) (mem. op.) (stating that the requirement to object timely encompasses not only the objection itself but also all grounds allegedly supporting it, both the objection and grounds must be timely asserted, and asserting the objection and grounds for the first time in a motion for new trial does not satisfy the contemporaneous objection rule if the complaint could have been urged earlier).” Supertrack Arlington, Inc. v. Proton PRC, Ltd., No. 07-19-00223-CV, 2021 Tex. App. LEXIS 1638, at *5-6 (Tex. App.-Amarillo Mar. 4, 2021)

You have to get a ruling on your complaint:

Discovery: “As part of issue seven, Sorrow attributes his failure to provide service information for [*20] the unserved defendants to the Sheriff’s refusal to provide the information to him. Though Sorrow does not assert the trial court committed any errors regarding the Sheriff’s discovery, he asks that the trial court compel the Sheriff to produce information in the Sheriff’s possession. While Sorrow did file a request for production as well as a motion to compel production, neither were set for hearing or submission with the court. Sorrow never secured a ruling, or refusal to rule, from the trial court on his request, motion, or his other discovery objections; therefore, he failed to preserve any error for our review with regard to the Sheriff’s responses to discovery. Tex. R. App. P. 33.1(a).” Sorrow v. Harris Cty. Sheriff, No. 14-18-00901-CV, 2021 Tex. App. LEXIS 1497, at *19-20 (Tex. App.-Houston [14th Dist.] Mar. 2, 2021)

Severance: “In issue nine, Sorrow argues that the trial court erred by not properly severing his claims brought under federal law from those claims brought under state law. See 42 U.S.C. § 1983; Tex. Civ. Prac. & Rem. Code Ann. § 101.021. He cites to the prayer in his petition, which states that he prays the court order a hearing to “determine if severable.” Sorrow also mentions that the “parties” were not properly severed. Because Sorrow did not properly request a ruling from the trial court and object to the trial court’s failure to rule, Sorrow has not preserved error for appellate review. Tex. R. App. P. 33.1(a). We overrule issue nine.” Sorrow v. Harris Cty. Sheriff, No. 14-18-00901-CV, 2021 Tex. App. LEXIS 1497, at *24 (Tex. App.-Houston [14th Dist.] Mar. 2, 2021)

You have to comply with other pertinent rules-including local rules:

Motions: “In issue two, Sorrow complains that the trial court failed to rule on a variety of motions that were pending at the time the Sheriff’s summary-judgment motion was granted. After the trial court rendered a final judgment, Sorrow filed his “Request for Written Rulings T.R.A.P. 33.1(a)(2)(A)” seeking rulings from the trial court on various pending objections [*21] and motions. Sorrow argues that the trial court still possessed plenary power, and its failure to rule on his various pending motions constituted an abuse of discretion.

The Rules of the Civil Trial Division of the Harris County District Courts, which have been approved by the Supreme Court of Texas, require that motions be heard either by written submission or by an oral hearing. Harris (Tex.) Civ. Dist. Ct. Loc. R. 3.3.3, 3.3.4; see Tex. R. Civ. P. 3a (authority to make local rules for civil cases in trial courts and requirement that those local rules be approved by Supreme Court of Texas). Sorrow does not allege, nor does the record reflect, that Sorrow complied with any of the local rules by setting any of his motions or objections for oral hearing or consideration by submission. Therefore, Sorrow has not shown that the motions the trial court allegedly failed to rule on were properly before the trial court. We overrule issue two.” Sorrow v. Harris Cty. Sheriff, No. 14-18-00901-CV, 2021 Tex. App. LEXIS 1497, at *20-21 (Tex. App.-Houston [14th Dist.] Mar. 2, 2021)

The lack of a reporter’s record is not fundamental error which can first be raised on appeal:

Reporter’s Record:  To the extent the Department implies that we should view the lack of a reporter’s record as fundamental error that escapes the usual error-preservation rules, we cannot agree. Indeed, a Texas Supreme Court case from the days in which a court reporter had a mandatory duty to be present and take notes makes that clear. See Robinson v. Robinson, 487 S.W.2d 713 (Tex. 1972). In that regular appeal, the court held that an appellate complaint about an absent court reporter was not preserved and that having an evidentiary hearing without the court reporter present was “not so fundamentally erroneous [*17] or unfair as to require a reversal in the absence of objection or exception.” Id. at 714-15.” Ex parte C.A., No. 02-19-00434-CV, 2021 Tex. App. LEXIS 1627, at *16-17 (Tex. App.-Fort Worth Mar. 4, 2021) (footnote omitted)

Never forget that your opponent can pursue a restricted appeal concerning an error which appears on the face of the record (and a restricted appeal, by definition, means it did not preserve error)-but if you intend to take advantage of the restricted appeal’s absolution from having to preserve such error, make sure you file a restricted appeal, as opposed to a regular appeal.

Reporter’s Record: “[P]arties filing a restricted appeal will not have been procedurally positioned to have preserved any complained-of error. See Tex. R. App. P. 30. As a consequence, a restricted appeal looks only for error on the face of the record. E.H., 602 S.W.3d at 495. In marked contrast, in a regular appeal [which the Department filed here], “[a]s a prerequisite to presenting a complaint for appellate review, the record must show that [the complaining party preserved error].” See Tex. R. App. P. 33.1(a). If a party files a regular appeal, it must comply with the preservation-of-error requirements even if it did not participate in the trial or dispositive hearing and even if it filed no postjudgment motions. See [*15] V.T.C., 593 S.W.3d at 436. . . .The Department did not file any postjudment motions [to complain about the lack of a reporter’s record], but it did file a timely notice of appeal for a regular appeal. . . . Here, the Department filed no motion or written objection regarding the court reporter’s failure to make a record. By raising its complaint for the first time on appeal, the Department has thus failed to preserve this issue for our review.. . . n. 7 We recognize the logical perversity of knowing that if the Department had waited a few days and filed a restricted appeal, it would have prevailed by showing error on the face of the record that need not have been preserved. But this procedural fluke is not reason enough for us to toss out Rule 33.1.” Ex parte C.A., No. 02-19-00434-CV, 2021 Tex. App. LEXIS 1627, at *14-15, 16, 20 n.7 (Tex. App.-Fort Worth Mar. 4, 2021)

That’s all for now.  Y’all stay safe and warm.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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