Error Preservation in Texas Civil Cases, 12/9/19

December 9, 2019

Dear All:

Things were a little slow on the error preservation front last week–never a bad thing.  But there were a couple of interesting cases, as reflected in this Table of Contents:

In the category of “your complaint must be timely,” this case about making a jury demand provides a warning that sometimes you have to reassert demands and complaints as your lawsuit changes–through the addition of new parties, for example:

Jury Trial

You have to set your motion for, and have, a hearing in order to preserve error about the trial court’s failure to actually rule on the motion

Motion to Vacate

The Blurbs

I’ve put this case about jury demand in the category of “your complaint must be timely”–this may not be a fair characterization, but this case provides a warning that, as lawsuits change, you may need to reassert complaints:

Jury Trial: “In its first issue, Alexander House asserts that the trial court erred in striking its jury demand because the jury waiver is limited to claims arising from the loan commitment with Arbor Mortgage and that it should have had a jury trial on its claims arising from its earlier letter of interest agreement with Arbor Funding. It also argues that it was entitled to a jury trial on its claims against Arbor Funding. The loan commitment agreement between Alexander House and Arbor Mortgage contains a New York choice-of-law provision and the following jury-waiver provision. . . .The trial court struck Alexander House’s jury demand on the motion of Arbor Mortgage before Alexander House added Arbor Funding as a defendant. After adding Arbor Funding as a defendant, Alexander House did not request a jury trial on its claims against Arbor Funding. By failing to request a jury trial on its claims against Arbor Funding, Alexander House has not preserved its complaint for appellate review as to Arbor Funding. See Tex. R. App. P. 33.1(a); see also Tex. R. Civ. P. 216(a) (providing that “[n]o jury trial shall be had in any civil [*7] suit, unless a written request for a jury trial is filed”).” Alexander House, Ltd. v. Arbor Commer. Mortg., LLC, No. 01-18-00470-CV, 2019 Tex. App. LEXIS 10511, at *6-7 (Tex. App.—Houston [1st Dist.] Dec. 5, 2019)

You have to set your motion for, and have, a hearing in order to preserve error about the trial court’s failure to actually rule on the motion:

Motion to Vacate: “Before we can address whether Cumberland and PSN met their burden to establish by clear and convincing evidence that the Virginia court lacked jurisdiction to enter the Consent Judgment, we first must address the effect of their failure to set the motion to vacate for a hearing. Because Cumberland and PSN [*9] had the burden to establish the exception to the full faith and credit requirement by clear and convincing evidence, requiring evidence to be heard by the trial court, they were required to obtain a hearing on their motion to vacate to preserve their complaint for appellate review. See Tyhan, Inc. v. Cintas Corp. No. 2, No. 01-18-00027-CV, 2018 Tex. App. LEXIS 8847, 2018 WL 5539419, at *1-2 (Tex. App.—Houston [1st Dist.] Oct. 30, 2018, no pet.) (mem. op.). Despite being advised that the motion was required to be set for a hearing and being advised regarding the procedure to follow, Cumberland and PSN never set the motion for a hearing. “[W]hen ‘a movant for new trial from a default judgment makes no effort to have [its] motion set for a hearing or otherwise to draw the trial court’s attention to [its] motion, and the movant allows the motion to be overruled by operation of law, the trial court does not abuse its discretion in permitting [its] motion to be overruled by operation of law.” R & G Transp., Inc. v. Fleetmatics, No. 01-14-00891-CV, 2016 Tex. App. LEXIS 624, 2016 WL 268553, at *2 (Tex. App.—Houston [1st Dist.] Jan. 21, 2016, no pet.) (mem. op.) (alterations in the original) (quoting James v. Comm’n for Lawyer Discipline, 310 S.W.3d 586, 593-94 (Tex. App.—Dallas 2010, no pet.)). “This is because when a motion for new trial requires the exercise of discretion, a trial court must be afforded the opportunity to exercise that discretion before a court of appeals may hold that it was abused.” Id.; see also Shamrock Roofing Supply, Inc. v. Mercantile Nat’l Bank at Dall., 703 S.W.2d 356, 358 (Tex. App.—Dallas 1985, no writ) (explaining “[t]rial judges have a heavy load of trials and contested motions,” [*10] “cannot be expected to examine sua sponte all papers filed in their courts,” and “must rely on counsel to see that motions are set for hearing”). Accordingly, because Cumberland and PSN failed to set their motion to vacate for a hearing, the trial court did not abuse its discretion in allowing the motion to be overruled by operation of law.” Cumberland Surgical Hosp. of San Antonio, LLC v. CCA Fin., LLC, No. 04-19-00354-CV, 2019 Tex. App. LEXIS 10449, at *8 (Tex. App.—San Antonio Dec. 4, 2019)

All for now. Y’all have a great week.


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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