March 24, 2022
Table of Contents
As the Supreme Court reminds us, courts of appeals cannot sustain a traditional summary judgment on grounds not asserted in the summary judgment motion
You have to bring your complaint to the attention of the trial court–and just filing a Rule 11 Agreement may not do that
Here are exercises in how to preserve complaints about a healthcare liability notice and releasing money from a bond
Limitations (Tolling Notice)
You have to get a ruling on your objection
Summary Judgment Evidence
Summary Judgment Evidence
Here is a case holding that a complaint to a jury question was preserved
Your complaint on appeal must comport with the complaint you raised in the trial court
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Evidence (Summary Judgment)
As the Supreme Court reminds us, courts of appeals cannot sustain a traditional summary judgment on grounds not asserted in the summary judgment motion:
Summary Judgment: “The court of appeals incorrectly suggested that if Energen established Chapter 95’s applicability, the burden would be on plaintiffs to satisfy both prongs of section 95.003. See 603 S.W.3d at 514-15. That would be true if a no-evidence motion for summary judgment were involved, see Ineos, 505 S.W.3d at 568, but Energen did not file such a motion here. Energen moved for traditional summary judgment, and therefore it was Energen’s burden to establish conclusively that it neither exercised nor retained control over the manner in which plaintiffs performed their work. See, e.g., Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, 570-71 (Tex. App.—Eastland 2000, pet. denied).
In the trial court, Energen’s only grounds for summary judgment were that Chapter 95 applied to plaintiffs’ claims and that it neither exercised nor retained control over plaintiffs’ work under section 95.003(1). In this Court, Energen also asserts that it did not have “actual knowledge” of a danger or condition under section 95.003(2). But because Energen did not move for summary judgment on the latter prong of section 95.003, we do not consider whether Energen had actual knowledge. See State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010) (“Summary judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion.”).” Energen Res. Corp. v. Wallace, No. 20-0451, 65 Tex. Sup. Ct. J. 605, 2022 Tex. LEXIS 233, at *19-20 (Mar. 11, 2022)
You have to bring your complaint to the attention of the trial court–and just filing a Rule 11 Agreement may not do that:
Judgment: “In rehearing issues 2 and 3, DHI argues that it did not invite error and the trial court was aware of its disagreement with the judgment. DHI argues that the majority opinion, relying on First National Bank of Beeville v. Fojtik, mechanically applied a presumption that the only way to preserve error was specifying disagreement with the substance of the judgment in the agreed motion or the judgment itself. 775 S.W.2d 632, 633 (Tex. 1989). While we agree that Fojtik does not require a party to specify its disagreement in a motion, we are not persuaded by DHI’s assertion that the trial court should review the entire record to determine the intent of the party seeking rendition of judgment. See id. Trial courts manage busy dockets. When parties settle or resolve their claims, a trial court is almost always required to sign a judgment or dismissal. The trial court has no affirmative duty to review the “record as a whole” to determine the underlying intent and position of the parties. See Tex. R. App. P. 33.1 (requiring preservation of complaints for appellate review to be made with sufficient specificity to make trial court aware of complaint unless specific grounds were apparent from context). To the extent that preservation of the specific ground was apparent from context, that context must relate to the present, not the past.1
DHI repeatedly cites to its Rule 11 agreement with the Deutsche parties to demonstrate that it made the trial court aware of its disagreement with the judgment and preserved error.2 However, an agreement between parties “is not a plea, pleading, or motion” and “while filing a Rule 11 Agreement with the trial court is a requirement for enforcement, it is not in and of itself a request for enforcement or any other affirmative action by the trial court.” Exito Elecs. Co., Ltd. v. Trejo, 142 S.W.3d 302, 305, 306 (Tex. 2004). The Rule 11 agreement was not included as part of the agreed motion for entry of judgment, nor does the record reflect that the terms of the Rule 11 agreement were brought to the attention of the trial court as part of its consideration of the agreed motion. See Tex. R. App. P. 33.1; Fojtik, 775 S.W.2d at 633; see also Hart v. Berko, Inc. 881 S.W.2d 502, 512 (Tex. App.—El Paso 1994, writ denied).
DHI argues in rehearing issue 4 that the record reflects the trial court made a ruling on the merits before signing the agreed final judgment. Citing again to the Rule 11 agreement, DHI argues this court should infer that the trial court ruled against its motion for summary judgment and held that ruling in abeyance, suggesting the Rule 11 agreement was also a trial court order. We are aware of no authority to support the elevation of a Rule 11 agreement to the level of a court order.” DHI Holdings, LP v. Deutsche Bank Nat’l Tr. Co., No. 14-19-00991-CV, 2022 Tex. App. LEXIS 1588, at *3-5 (Tex. App.—Houston [14th Dist.] Mar. 8, 2022)
Here are exercises in how to preserve complaints about a healthcare liability notice and releasing money from a bond:
Limitations (Tolling Notice): “In response to Dr. Thome’s argument that the authorization form Hampton’s attorney used failed to trigger the tolling statute under the Act, Hampton attempts to dodge the issue by arguing Dr. Thome failed to preserve his claim for the purposes of his appeal because he is attempting to relitigate an adverse ruling he received on his motion for summary judgment. We disagree. The record shows Dr. Thome preserved the issue in three ways, by moving for directed verdict both at the close of the plaintiff’s case-in-chief, by moving for directed verdict on the issue at the close of the trial, and by filing a post-judgment motion for JNOV. All three motions made the same argument that he relies on here, that Hampton’s attorney failed to take the actions required by statute to trigger the tolling provision in the Act and prevent the two-year statute of limitations from expiring on her claim. Finally, the record shows the trial court ruled on (and denied) all three of these motions.
Rule 33.1 of the Texas Rules of Appellate Procedure describes how parties are to preserve error for later appeal in a trial. To preserve error for appeal, the record must show the party who wishes to appeal made a timely request before the trial court by making an objection or motion stating the grounds for the ruling the party wanted with sufficient specificity to make the trial court aware of the complaint and do so in a manner that complied with any applicable requirements of the Rules of Evidence or procedure.18 No one, whether in the trial court or here, has ever disputed the fact the record shows that Hampton’s claim accrued more than two years before she filed suit. The record shows that both before the trial and during the trial, the trial court was fully aware there was a dispute about whether the authorization form Hampton’s attorney used when he notified Dr. Thome he intended to file a suit on Hampton’s behalf failed to track the language in the form prescribed by statute. While Hampton argues Dr. Thome suffered no prejudice, the question of whether she filed a form sufficient to comply with the requirements of the Act is a question of law, a matter that involves a court interpreting the requirements of a statute. As such, it is not a question of fact that the trial court needed to submit to the jury to decide whether Dr. Thome suffered prejudice.
Here, the record shows Dr. Thome made the trial court aware of his complaint at the appropriate stage of the case and that he secured a ruling on his motion. We conclude Dr. Thome did all he was required to do under the Rules of Appellate Procedure to preserve the argument that he made in his brief to support his first issue.” Thome v. Hampton, No. 09-20-00022-CV, 2022 Tex. App. LEXIS 1776, at *10-12 (Tex. App.—Beaumont Mar. 17, 2022)
Bond: “In response, Subsea first contends that this issue is waived because, although PILOT asked the trial court for disbursement of the trespass damages from the deposited funds, it did not ask the trial court to “dissolve [Subsea’s] bond.” See In re East, 476 S.W.3d 61, 67 (Tex. App.—Corpus Christi—Edinburg 2014, no pet.) (“It is well established that arguments not presented to the trial court will not be considered in a petition for writ of mandamus.”). We disagree that the issue was waived. In its “Motion to Disburse Undisputed Money Owed to PILOT From Funds on Deposit in Court’s Registry,” PILOT asked the trial court to do exactly what it requests here: to release the trespass damages, plus interest, from the funds on deposit in the trial court’s registry. It is true that PILOT did not ask for the trial court to render an order “dissolv[ing Subsea’s] bond,” but that is presumably because, as discussed above, PILOT does not believe that a separate order is necessary to terminate the suspension effect of a supersedeas bond or deposit. In any event, PILOT is not asking this Court to compel the rendition of an order “dissolv[ing Subsea’s] bond,” but merely seeks disbursement of funds in the registry of the trial court.” Port Isabel Logistical Offshore Terminal, Inc. v. Subsea 7 Port Isabel, LLC, Nos. 13-21-00169-CV, 13-21-00368-CV, 2022 Tex. App. LEXIS 1652, at *34-35 (Tex. App.—Corpus Christi Mar. 10, 2022)
You have to get a ruling on your objection:
Summary Judgment Evidence: “The Appraisal District objected to some of J-W Power’s summary judgment evidence below. In this court, it argues the trial court erred by considering evidence that J-W Power “paid any dealer heavy equipment inventory tax in Jim Wells County, much less on the Duval based compressors.” The appellate record contains no indication that the trial court ruled on these objections. We therefore decline to address the Appraisal District’s evidentiary complaints. See Tex. R. App. P. 33.1, 38.2.” J-W Power Co. v. Duval Cty. Appraisal Dist., No. 04-21-00172-CV, 2022 Tex. App. LEXIS 1743, at *5 (Tex. App.—San Antonio Mar. 16, 2022)
Summary Judgment Evidence: “If a party does not obtain a ruling on an objection to the form of summary-judgment evidence, the objection is not preserved. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164-65 (Tex. 2018). Without a ruling, the complained-of evidence remains part of the summary-judgment record and should be considered by an appellate court in reviewing the summary judgment. FieldTurf USA, Inc. v. Pleasant Grove ISD, No. 20-0507, 2022 WL 627769, at *6, 2022 Tex. LEXIS 217 (Tex. Mar. 4, 2022) (citing Seim, 551 S.W.3d at 166). Unless the record shows a clearly implied ruling, a ruling on evidentiary objections is required to preserve error. See Seim, 551 S.W.3d at 165-66. A trial court’s ruling on a summary-judgment motion is generally not an implicit ruling on objections to the summary-judgment evidence. See id.” Wells Fargo Bank, N.A. v. Rodriguez, No. 02-21-00155-CV, 2022 Tex. App. LEXIS 1817, at *4 n.2 (Tex. App.—Fort Worth Mar. 17, 2022)
Here is a case holding that a complaint to a jury question was preserved:
Jury Charge: “Rule 278 of the Rules of Civil Procedure provides that “[a] judgment shall not be reversed because of the failure to submit other and various phases or different shades of the same question.” Tex. R. Civ. P. 278. Rule 278 also provides that the failure to submit a question shall not be deemed a ground for reversal unless its submission, in substantially correct wording, has been requested in writing. Id. Realty Partners argues that Appellants failed to preserve error because they did not submit their request in writing; “however, that objection to such failure shall suffice in such respect if the question is one relied upon by the opposing party.” Id. Rule 277 of the Rules of Civil Procedure provides that “[i]n all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277. The record shows that the trial court in Question 3-A incorporated Appellants’ excuse defense question, Realty Partners’ material breach instruction and Realty Partners’ anticipatory repudiation instruction in substantially correct form pursuant to Contracts 101.21, 101.22 and 101.23 of the Texas Pattern Jury Charges. See Island Recreational Dev. Corp. v. Republic of Texas Sav. Asso., 710 S.W.2d 551, 554-55 (Tex. 1986); Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance & Employment PJC 101.21, 101.22, 101.23 (2020). Therefore, we overrule issue three.” Towery v. Realty Partners, Inc., No. 09-20-00054-CV, 2022 Tex. App. LEXIS 1783, at *35-36 (Tex. App.—Beaumont Mar. 17, 2022)
Your complaint on appeal must comport with the complaint you raised in the trial court:
Fiduciary Duty: “Here, appellants’ complaint on appeal does not comport with the objection that they raised at trial. At trial, appellants objected that Taylor was not required to examine the accounts, records, or actions of a previous trustee, and that as a successor trustee, Taylor was not liable for any actions or omissions committed by a previous trustee, and thus any contention that Taylor breached a fiduciary duty on this basis was “legally incorrect.” On appeal, appellants assert that the trial court’s order requiring Taylor to provide accountings for the trusts encompasses records he has no access to and allegedly requires use of estate funds to which he has no access. Appellants’ objection to the trial court does not correspond to the argument made on appeal. Because appellants did not raise the argument in the trial court that they now raise on appeal, they have not preserved this issue for our review. See Tex. R. App. P. 33.1(a);” In re Bumstead Family Irrevocable Tr., No. 13-20-00350-CV, 2022 Tex. App. LEXIS 1686, at *76-77 (Tex. App.—Corpus Christi Mar. 10, 2022)
All for now. Y’all stay safe and well.
Yours, Steve Hayes