Error Preservation in Texas Civil Cases, 12/17/2019

December 13, 2019

Dear All:

The courts seemed to have gotten busier as the holidays approach, or perhaps they have just encountered more cases involving error preservation. But some interesting decisions populate this week’s traffic, as the Table of Contents shows:

Table of Contents

  • I thought I would mention one case where the court seemed to indicate that no complaint as to evidence exists when the parties stipulate in the trial court to what the testimony would have shown.
  • Some complaints one can first raise on appeal. One case this week held that one such complaint is a complaint about the failure of the trial court to a give a hearing on a forfeiture based on a gambling offense other than possession of certain gambling devices– “the operation of Rule 33.1(a) may be suspended when the appellant does not have an opportunity to comply with the rule.” I would not count on extending its rationale beyond the situation involved in this case
  • The record must show that you preserved your complaint
  • You must raise your complaint in a timely fashion, such as a complaint about lack of notice

The Blurbs

  • I thought I would mention this case, because the court seemed to indicate that no complaint as to evidence exists when the parties stipulate in the trial court to what the testimony would have shown:

Evidence: “Admittedly, the record in this case is unusual because neither party offered oral testimony, but each offered exhibits and stated what the evidence would show to no objection. When the parties adopt this method of presentation, the trial court may accept their statements as evidence. See Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 380 (Tex. App.—Fort Worth 2004, pet. denied) (“Although an attorney’s statements must be under oath to be considered [*7] evidence, the opponent of the testimony can waive the oath requirement by failing to object when an objection is necessary.” (citing Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam))); see also Anderson v. Safeway Tom Thumb, No. 02-18-00113-CV, 2019 Tex. App. LEXIS 4284, 2019 WL 2223582, at *11-12 (Tex. App.—Fort Worth May 23, 2019, pet. denied) (mem. op.) (per curiam) (same).” Alpha Adventure Ranch at Nocona, LLC v. Warrior Golf Mgmt., LLC, No. 02-19-00030-CV, 2019 Tex. App. LEXIS 10789, at *6-7 (Tex. App.—Fort Worth Dec. 12, 2019)

  • Some complaints one can first raise on appeal. This case says that one such complaint is a complaint about the failure of the trial court to a give a hearing on a forfeiture based on a gambling offense other than possession of certain gambling devices– “the operation of Rule 33.1(a) may be suspended when the appellant does not have an opportunity to comply with the rule.” I would not count on extending its rationale beyond the situation involved in this case:

Hearing: “”Following the final conviction of a person for possession of a gambling [*2] device or equipment, altered gambling equipment, or gambling paraphernalia . . . the court shall order [seized gambling proceeds] forfeited to the state.” Tex. Code Crim. Proc. Ann. art. 18.18(a); see generally Tex. Penal Code Ann. § 47.06 (titled, “Possession of Gambling Device, Equipment, or Paraphernalia”). When, as here, the person is convicted of another gambling offense, the person is entitled to notice and a hearing to contest the forfeiture. Tex. Code Crim. Proc. Ann. art. 18.18(b)-(f); State v. Dugar, 553 S.W.2d 102, 104 (Tex. 1977). The State concedes that because Datoo was not convicted for one of the enumerated offenses under Article 18.18(a), he was entitled to notice and a hearing under Article 18.18(b)-(f). See Tex. Code Crim. Proc. Ann. art. 18.18(a)-(f); Dugar, 553 S.W.2d at 104.

Nonetheless, the State asks us to affirm the judgment, asserting that Datoo waived any error by failing to make a timely objection to the trial court. The State relies on Texas Rule of Appellate Procedure 33.1(a) for the general proposition that an appellant must present a “timely request, objection, or motion” to the trial court to preserve the complaint for appellate review. See Tex. R. App. P. 33.1(a). Although this is a civil proceeding, Rule 33.1 applies with equal force to criminal and civil proceedings, and we agree with the Texas Court of Criminal Appeals that “[t]he requirement that an objection be raised in the trial court assumes that the appellant had the opportunity to raise it there.” Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (citations omitted). [*3] In other words, the operation of Rule 33.1(a) may be suspended when the appellant does not have an opportunity to comply with the rule. Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013). To hold otherwise would be inconsistent with the basic tenets of due process—”notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).

In this case, it is undisputed that the trial court signed the forfeiture order without conducting a hearing and without notice to Datoo. Thus, the only possible relief Datoo could seek from the trial court was post judgment. Datoo filed his notice of appeal within thirty days, meaning he had an opportunity to timely file a motion for a new trial. See Tex. R. Civ. P. 329(a), (b). However, while a motion for a new trial is a prerequisite to presenting a complaint on appeal under certain circumstances, none of those circumstances are present here. See Tex. R. Civ. P. 324(a), (b). In a similar case, the Landers Court rejected the State’s argument that the defendant should have preserved her complaint by filing a permissive, as opposed to mandatory, motion for a new trial. Landers, 402 S.W.3d at 253-55. Because the trial court denied Datoo the opportunity to object at the time the error was committed, and because no rule of procedure compelled Datoo to seek post judgment [*4] relief before filing his appeal, we conclude that Datoo may present his complaint for the first time on appeal. See id.; see also Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2003) (holding that the defendant could present his complaint for the first time on appeal because “the [trial] court modified the terms of [the defendant’s] probation without a hearing, and [the defendant] had no opportunity to object.”).” Datoo v. State, No. 13-18-00192-CV, 2019 Tex. App. LEXIS 10733, at *1-4 (Tex. App.—Corpus Christi Dec. 12, 2019)

  • The record must show that you preserved your complaint:

Record: “When an appellant asserts on appeal that the trial court abused its discretion, “he bears the burden of providing a record showing an abuse of discretion.” Ngwu, 2019 Tex. App. LEXIS 6281, 2019 WL 3307913, at *2. Although the divorce decree entered by the trial court in the instant case recites a record was made, the parties conceded in their briefs that no such record was actually made. A party may waive the making of the record by not objecting to the failure to record the proceedings. Campbell v. Campbell, No. 02-12-00313-CV, 2014 Tex. App. LEXIS 5268, 2014 WL 1999318, at *1 (Tex. App.—Fort Worth May 15, 2014, no pet.) (mem. op.); Benjamin v. Benjamin, No. 01-10-01003-CV, 2013 Tex. App. LEXIS 10580, 2013 WL 4507848, at *2 & n.2 (Tex. App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op.). Here, the divorce decree recites Tommy appeared in person and through his attorney of record, but “the clerk’s record does not demonstrate that [Tommy] requested a reporter’s record to be made or objected to the failure to record the proceeding.” Ngwu, 2019 Tex. App. LEXIS 6281, 2019 WL 3307913, at *2. “It is the appellant’s burden to present [*5] an appellate record that substantiates his arguments on appeal.” Id. “Without a record of the proceedings before the trial court, we cannot review [Tommy’s] complaint that the trial court lacked sufficient evidence to reach its ruling, and we must presume the reporter’s record would support the trial court’s judgment.” Id. Accordingly, Tommy’s first issue is overruled..” Brown v. Brown, No. 04-19-00221-CV, 2019 Tex. App. LEXIS 10696, at *4-5 (Tex. App.—San Antonio Dec. 11, 2019)

  • You must raise your complaint in a timely fashion:

Notice: “In the instant case, Appellants filed their original [*18] answer on September 25, 2017. They did not file a motion to abate until January 8, 2018. Even assuming arguendo that a motion to abate filed more than three months after an answer is timely, Appellants’ motion to abate made no reference to the notice provisions of Section 209.006(a). See Tex. R. App. P. 33.1(a). Therefore, we conclude that Appellants waived the notice requirement of Section 209.006(a), if applicable.” Roddy v. Holly Lake Ranch Ass’n, No. 12-18-00261-CV, 2019 Tex. App. LEXIS 10710, at *17-18 (Tex. App.—Tyler Dec. 11, 2019) (footnotes omitted).

Then, several cases held that parties failed to preserve their complaints by virtue of failing to raise the complaint in the trial court.

All for now.  More next week.  Y’all take good care.

Yours, Steve Hayes (shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com)

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