January 23, 2021
Dear All:
If you’re an appellate lawyer, you dream about a case like the first one discussed below–a court of appeals analyzing whether the complaint was “made with sufficient specificity to make the trial court aware” (an aspect of preservation courts rarely address), the complaint focusing on appellate attorney’s fees–and someone testifying that fees on appeal will exceed $400,000 (as opposed to your trial counsel testifying that the appeal will cost less than one tenth what the trial cost).
Table of Contents
Your complaint must be sufficiently specific to make the trial court aware of it
Appellate Attorney’s Fees
One may first complain on appeal about defective service
You have to comply with the pertinent rules
Summary Judgment
Your complaint must be timely
Evidence
The Blurbs
If you’re an appellate lawyer, you dream about the following type of case–a court of appeals analyzing whether the complaint was “made with sufficient specificity to make the trial court aware” (an aspect of preservation courts rarely address), the complaint focusing on appellate attorney’s fees–and someone testifying that fees on appeal will exceed $400,000 (as opposed to your trial counsel testifying that the appeal will cost less than one tenth what the trial cost):
Appellate Attorney’s Fees: “At the December 10 hearing, Mizell testified regarding the Hospital’s request for its future appellate attorney’s fees. In its final judgment, the trial court awarded the Hospital $489,800 in future appellate fees “conditioned upon the Hospital [*33] prevailing on any appeal of this case by Nath.” Nath contends on appeal that the Hospital’s failure “to ever plead for future appellate attorney’s fees” is fatal to its recovery. . . . During Mizell’s testimony on the Hospital’s future appellate attorney’s fees, Nath did not object to this evidence as being outside the Hospital’s pleadings. . . . With respect to this line of testimony, the only objection Nath raised addressed the foundation for Mizell’s opinion:
Objection, Your Honor. Lack of foundation on the part of this witness with regard to what appellate fees may or may not be with regard to any matter or this mater. There’s not been a proper foundation with regard to this witness.
This objection was not sufficient to make the trial court aware of the issue Nath now raises on appeal, i.e., whether appellate attorney’s fees were outside the scope of the Hospital’s pleadings. See Tex. R. App. P. 33.1(a). We overrule Nath’s argument that the Hospital failed to plead for an award of future appellate attorney’s fees.” Nath v. Tex. Children’s Hosp., Nos. 14-19-00967-CV, 14-20-00231-CV, 2021 Tex. App. LEXIS 459, at *32-34 (Tex. App.—Houston [14th Dist.] Jan. 21, 2021)
One may first complain on appeal about defective service:
Service: “In his first issue, Singh contends the trial court’s final decree is void because the trial court never acquired personal jurisdiction over him. According to Singh, the substituted service was defective because Gill’s motion failed to comply with rule of civil procedure 106(b). Specifically, Singh contends the affidavits attached to the motion failed to set forth facts demonstrating that Gill unsuccessfully attempted to serve him by personal service or certified mail. He also asserts that substituted [*6] service was attempted by an interested party, Gill’s attorney, in violation of rule 103. Gill contends that Singh failed to preserve error by raising the issue in his motion for new trial. We disagree. A party may complain of defective service of citation for the first time on appeal” Singh v. Gill, No. 05-19-01146-CV, 2021 Tex. App. LEXIS 400, at *5-6 (Tex. App.—Dallas Jan. 20, 2021)
You have to comply with the pertinent rules:
Summary Judgment: “First, Good Guys argues the trial court erred when it ruled on AAMCO and Cox’s summary judgment objections because Good Guys’ written objections were filed the night before the hearing when discovery was still ongoing in the case.
We hold that Good Guys waived [*6] this complaint by not timely asserting it in the trial court. See Tex. R. App. P. 33.1 (requiring a complaint to be made to trial court by timely request to preserve the complaint for appellate review). “When a summary judgment movant objects to summary judgment evidence proffered by the nonmovant, the burden lies upon the nonmovant to request relief under rule 166a(f), including a continuance or the opportunity to cure any formal defects in the nonmovant’s summary judgment evidence.” Coleman v. Woolf, 129 S.W.3d 744, 750 (Tex. App.—Fort Worth 2004, no pet.). “Generally, a motion for continuance is the proper procedure to obtain this ‘opportunity.'” Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied) (citing Webster v. Allstate Ins. Co., 833 S.W.2d 747, 750 (Tex. App.—Houston [1st Dist.] 1992, no writ)). Here, Good Guys failed to request a continuance or opportunity to cure before the trial court’s judgment. Instead, it first raised the issue in its appellate brief. Therefore, Good Guys waived this issue for appeal. See Tex. R. App. P. 33.1;” Villejo Enters., LLC v. C.R. Cox, Inc., No. 04-19-00882-CV, 2021 Tex. App. LEXIS 371, at *5-6 (Tex. App.—San Antonio Jan. 20, 2021)
Your complaint must be timely:
Evidence: “Dallas County Sheriff’s Deputy James Rodriguez testified that, after observing Harding’s reaction during Classic’s attempted inspection of the Unit, he recommended that the Association hire security to insure the safety of the construction crew making repairs to the upstairs unit. On appeal, Simpson and Harding complain that none of Deputy Rodriguez’s testimony was relevant with respect to the issues that were tried.
To preserve error for appellate review, the complaining party must timely and specifically object to the evidence and obtain a ruling. TEX. R. APP. P. 33.1(a). Error is waived if the complaining party allows the evidence to be introduced without objection. McShane, 239 S.W.3d at 235. Here, Simpson and Harding did not object during Rodriguez’s testimony. Instead, at the conclusion of his cross-examination of Rodriguez, Simpson and Harding’s counsel asked the court to strike Rodriguez’s testimony because it had nothing to do with [*24] the case. The trial court did not err in allowing Rodriguez to testify—Simpson and Harding did not timely object to his testimony. Id. Further, a review of the entire record does not demonstrate that the judgment turns on the testimony of Rodriguez.” Simpson v. Oaks on Monfort Condo. Ass’n, No. 05-19-00123-CV, 2021 Tex. App. LEXIS 359, at *23-24 (Tex. App.—Dallas Jan. 19, 2021)
All for now. Y’all have a great weekend.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-2789; www.stevehayeslaw.com