June 13, 2022
Dear Folks:
I’m still a week behind, but I plan to catch up this next weekend.
Table of Contents
The Supreme Court recently reaffirmed that in parental right termination cases parties must preserve Casteel complaints
Jury Charge
Here is one I find important, as a reminder: get a signed order. Do not depend on an email from the court as a ruling–especially an email that is not in the Clerk’s Record
Evidence
Remember: you have to object in the trial court to a failure to rule on your complaint
Evidence
At the confluence of complaints concerning whether an expert’s opinion is conclusory, or unreliable, the conclusory complaint can first be raised on appeal while a complaint about
Here are examples of complaints which were preserved
Jury Charge
Sanctions
You have to make the trial court aware of your complaint
Continuance
You have to comply other pertinent rules
Affidavit
Findings and Conclusions
Your complaint on appeal must be the complaint you raised at trial
Conscious Indifference
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Amicus
Affidavit
Constitution
Evidence
Evidence
Jury Charge
Jury Trial
Jury Trial
Record
Record
Sanctions
Summary Judgment
Substantially Similar Offenses
Violation of Order
Blurbs
The Supreme Court recently reaffirmed that in parental right termination cases parties must preserve Casteel complaints:
Jury Charge: “Here, the broad-form charge erroneously, and over Father’s objection, n. 15 commingled a valid termination ground supported by sufficient evidence (Subsection (O)) with an invalid termination ground supported by legally insufficient evidence (Subsection (D). N. 15 We held in In re A.V. that even in a parental-termination case, an objection in the trial court is required to preserve error based on broad-form submission. 113 S.W.3d at 363.” In the Int. of. J.W., No. 19-1069, 65 Tex. Sup. Ct. J. 1196, 2022 Tex. LEXIS 450, at *54 (May 27, 2022)
Here is one I find important, as a reminder: get a signed order. Do not depend on an email from the court as a ruling–especially an email that is not in the Clerk’s Record:
Evidence: “[A] trial court’s decision to exclude or admit summary judgment evidence is reviewed for an abuse of discretion. …The rules of error preservation apply to issues involving summary judgment evidence. …In order to complain about a defect in summary judgment evidence, the appellant must timely object in the trial court and obtain a ruling from the trial court on the objection. … Appellant does not cite a ruling in the appellate record on her objections to Appellees’ summary judgment evidence. Instead, Appellant cites an e-mail from the trial court that Appellant attached to her appellate brief as an appendix.
An appellate court is required to consider a case solely on the appellate record, and it cannot consider documents attached to briefs as exhibits or appendices. …Attaching documents to briefs as exhibits or appendices does not make them part of the appellate record. …
Additionally, “[l]etters to counsel are not the kind of documents that constitute a judgment, decision or order from which an appeal may be taken.” Goff v. Tuchscherer, 627 S.W.2d 397, 398-99 (Tex. 1982). The e-mail from the trial court upon which Appellant relies was not filed of record. …While the trial court’s e-mail states that Appellant’s objections to Appellees’ summary judgment “are overruled,” the e-mail further states that Appellant’s attorneys “can efile an order as to my ruling on the evidentiary objections if you wish to do so.” A statement to the effect that another writing is anticipated indicates that the trial court did not intend for the letter to be an appealable ruling….Thus, the e-mail from the trial court to the attorneys in the case, announcing its intended ruling, did not constitute an appealable ruling on Appellant’s objections to Appellees’ summary judgment evidence.” Brown v. Underwood, No. 11-20-00138-CV, 2022 Tex. App. LEXIS 3551, at *9 (Tex. App.—Eastland May 26, 2022)
Remember: you have to object in the trial court to a failure to rule on your complaint:
Evidence: “Appellees note that they asked the trial court to continue the hearing on Union Pacific’s motion to dismiss and permit limited discovery. Appellees ask this court to “order [the trial court] to rule on Appellees’ request for continuance and limited discovery.”
Assuming without deciding that this court would have jurisdiction in an interlocutory appeal from the denial of a motion to dismiss under the TCPA to address discovery issues,10 the record does not show that appellees objected to the trial court’s refusal to rule on its requests. Thus, no error is preserved. See Goodchild v. Bombardier-Rotax GmbH Motorenfabrick, 979 S.W.2d 1, 6 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (no error preserved for issue alleging that trial court failed to rule on request for jurisdictional discovery).” Union Pac. R.R. Co. v. Dorsey, No. 14-20-00308-CV, 2022 Tex. App. LEXIS 3743, at *18-19 (Tex. App.—Houston [14th Dist.] June 2, 2022)
At the confluence of complaints concerning whether an expert’s opinion is conclusory, or unreliable, the conclusory complaint can first be raised on appeal while a complaint about reliability must be made in the trial court:
Expert: “Here, the evidentiary challenge largely turns on the credence that a court must give to Dr. Arambula’s testimony. No challenge to his credentials, methodology, or conclusions was made below. Accordingly, we are asked to disregard the testimony for the first time on appeal as part of a legal sufficiency challenge. And no doubt, “[b]are, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.” City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). Accordingly, a party for the first time on appeal may challenge an expert’s conclusion that is conclusory or speculative….
But by contrast, when a non-conclusory scientific opinion is challenged as unreliable, a party must object at trial to complain that the evidence is legally insufficient to support the judgment. Pollock, 284 S.W.3d at 816-17. The rationale for that rule is fair notice, allowing the sponsoring party of the testimony the opportunity to defend the reliability of the opinion. Id. at 817. Thus, when a court must “evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis.” Id.; see also Cordova, 618 S.W.3d at 916-17.7
2. The evidence is legally sufficient to support the jury’s finding
Appellant argues that the evidence is legally insufficient to support the jury’s SVP finding because Dr. Arambula’s testimony was too misleading, conclusory, and speculative to allow a rational fact finder to find the elements required for commitment under the SVP Act. More specifically, Appellant contends that Dr. Arambula’s testimony: (1) failed to establish the reliability of his expert opinion; (2) asserted in a speculative and conclusory manner that he properly relied on principles involved in the field of psychiatry; and (3) was not sufficiently founded on data that supported his conclusions. But where, as here, an offender did not object to the reliability of the State’s expert’s opinion at trial, the offender cannot challenge the reliability of the expert’s opinion on appeal. Rather, we restrict our review of a legal sufficiency challenge on this ground to determine only whether there is some basis to support the expert’s opinion, such that the opinion at issue was not conclusory.” In re Commitment of King, No. 08-21-00014-CV, 2022 Tex. App. LEXIS 3745, at *20-23 (Tex. App.—El Paso June 3, 2022)
Here are examples of complaints which were preserved:
Jury Charge: “As an initial matter, we address whether this issue was preserved for our review. The trial court submitted a question asking the jury, “Do you find that ANKOR’s failure to comply with the JOAs was the result of willful misconduct on the part of ANKOR?” The jury answered no. The nonoperators argue this question is immaterial because the exculpatory clause does not apply. The nonoperators did not object to the trial court’s submission of the question below but argued in a motion for new trial that the question was immaterial.
A complaint that a jury’s answer is immaterial is not a jury-charge complaint that must be raised before the jury deliberates.. ..A party can instead preserve a materiality complaint by raising the issue in a motion for judgment notwithstanding the verdict, a motion to disregard the finding, or a motion for new trial…. Because the nonoperators argued in the motion for new trial that the jury’s finding on willful misconduct was immaterial, this argument has been preserved for review….
Ankor also argues that the nonoperators did not preserve error on their theory that Ankor breached the JOAs by incurring liabilities without the nonoperators’ consent. The nonoperators contend “[t]he gravamen of this entire suit is that Ankor never got . . . required written consent . . . for more than a million dollars in capital costs for a gas production plant, [which were] costs that Ankor told the Non-Operators they would not have to [pay] but then deducted from the Non-Operators’ revenues.” According to Ankor, to preserve error, the nonoperators were required but failed to obtain any jury findings on this issue. The jury found simply that Ankor “failed to comply with the JOAs.”
Trial courts are required to submit broad-form questions in their jury charge whenever feasible. Tex. R. Civ. P. 277. An exception applies “when a jury bases a finding of liability on a single broad-form question that commingles invalid theories of liability with valid theories, [because] the appellate court is often unable to determine the effect of this error.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000). Here, Ankor does not argue that the nonoperators submitted a single broad-form liability question that commingled valid and invalid liability theories. In fact, the only liability theory presented to the jury was based on Ankor’s failure to obtain consent before making certain expenditures. The broad-form jury question was adequate to preserve error.” Bachtell Enters., LLC v. Ankor E&P Holdings Corp., No. 14-20-00544-CV, 2022 Tex. App. LEXIS 3555, at *6-8 (Tex. App.—Houston [14th Dist.] May 26, 2022)
Sanctions: “Appellee first responds that appellants waived their challenge to the trial court’s order imposing death penalty sanctions because they failed to object to the trial court’s exclusion of their evidence and further failed to raise the complaint in a motion for new trial. Appellee next responds that appellants’ conduct of repeated discovery abuse justified the death penalty sanctions.
We disagree with appellee that appellants waived their challenge to the death penalty sanctions. Appellants opposed the motion for sanctions both in writing and at the hearing on the motion thereby by sufficiently presenting to the trial court their objection to death penalty sanctions being ordered against them. See Tex. R. App. P. 33.1(a);” Diana Convenience, LLC v. Dollar ATM, LLC, No. 05-20-00936-CV, 2022 Tex. App. LEXIS 3569, at *7 (Tex. App.—Dallas May 25, 2022)
You have to make the trial court aware of your complaint:
Continuance: “Finally, we reject LDM’s argument that the trial court reversibly erred by not granting its motion for a continuance. Nothing in the record suggests LDM preserved this issue for our review by bringing its motion to the trial court’s attention and either obtaining a ruling or objecting to the trial court’s refusal to rule.” L.D. McLoud Transp., LLC v. 1st Class Fuels, LLC, No. 05-20-00796-CV, 2022 Tex. App. LEXIS 3748, at *12 (Tex. App.—Dallas June 3, 2022)
You have to comply other pertinent rules:
Affidavit: “By his first issue, Michael argues the trial court erred in striking his affidavit—which he solely relied on to defeat appellees’ motions for summary judgment—on the grounds that it was not readily controvertible, a sham, and conclusory.
In the trial court, appellees filed a motion to strike Michael’s summary judgment evidence on the basis that it was: (1) not readily controvertible, (2) conclusory, and (3) a sham. Michael responded to only two of these objections. Regarding the first objection, in a single sentence, Michael argued that the part of Texas Rule of Civil Procedure 166a(c)—requiring summary judgment evidence to be readily controvertible—”only applies to affidavits filed by a movant for summary judgment, not responses to summary judgment motions,” such as his opposing affidavit. Regarding the second objection, Michael asserted that the sham rule did not apply because “[a] request for admissions is not sworn testimony,” and therefore his affidavit did not conflict with prior testimony.
Michael did not address appellees’ argument that his summary judgment evidence was “conclusory, not supported by facts, is based on his subjective belief, and cannot be used to defeat summary judgment.” …Any issues that a nonmovant contends avoid summary judgment must be expressed in a written motion, answer, or other response to the motion. See Tex. R. Civ. P. 166a(c). “We do not consider on appeal grounds not raised in the trial court in opposition to a summary judgment motion.” ….. On appeal Michael may not urge “any and every new ground he can think of, nor can he resurrect grounds that he abandoned” in the trial court….To preserve his argument, Michael was required to raise it in his response to appellees’ motion to strike Michael’s summary judgment evidence. See Tex. R. Civ. P. 166a(c). Because he failed to do so, we overrule Michael’s first issue.” Lowman v. Martini, No. 13-20-00359-CV, 2022 Tex. App. LEXIS 3533, at *5-7 (Tex. App.—Corpus Christi May 26, 2022)
Findings and Conclusions: “In this case, the trial court issued its findings of fact and conclusions of law on March 22, 2020. Ponce did not file a request for additional findings of fact and conclusions of law. See Tex. R. Civ. P. 298. Instead, Ponce had challenged “anticipated” findings and conclusions in his motion for new trial; a motion for new trial cannot be construed as a timely request for additional findings or conclusions.” Ponce v. Comm’n for Law. Discipline, No. 04-20-00267-CV, 2022 Tex. App. LEXIS 3513, at *4 (Tex. App.—San Antonio May 25, 2022)
Your complaint on appeal must be the complaint you raised at trial:
Conscious Indifference: “At the conclusion of the charge conference, after both sides had rested and closed, NRH made an oral motion for directed verdict. …In its motion, NRH limited its legal sufficiency argument to the issue of emergency and made no mention of conscious indifference or reckless disregard. It cannot now complain on appeal about the denial of its motion on a ground not included therein.” City of N. Richland Hills v. Quinonez, No. 02-21-00432-CV, 2022 Tex. App. LEXIS 3628, at *7 (Tex. App.—Fort Worth May 26, 2022)
All for now. You all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com