Error Preservation in Texas Civil Cases, June 3, 2019

Dear Gang:

The main takeaway this week:  get a ruling on your complaints.  If you don’t, you’ve not preserved error.

You must get a ruling on your complaint:


Affidavit: “A well-developed body of law governs affidavits in the summary judgment context. The case law draws a distinction between defects in form and substance. See Dailey v. Albertson’s, Inc., 83 S.W.3d 222, 225 (Tex.App.–El Paso 2002, no pet.).  Form defects must be preserved by both an objection and ruling at the trial court, while substantive objections can be raised even on appeal. Id.; MVS Int’l Corp. v. Int’l Adver. Sols., LLC, 545 S.W.3d 180, 191 (Tex.App.–El Paso 2017, no pet.). Hearsay is an objection to form. Vasquez v. S. Tire Mart, LLC, 393 S.W.3d 814, 819 (Tex.App.–El Paso 2012, no pet.); Rockwall Commons Associates, Ltd. v. MRC Mortg. Grantor Tr. I, 331 S.W.3d 500, 507 (Tex.App.–El Paso 2010, no pet.); see also Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex.App.–Dallas 2011, no pet.)(holding that hearsay statement in affidavit filed in support of summary judgment is a defect in form that must be objected to at the trial). Consequently, unless an order sustaining a hearsay objection to summary judgment evidence is reduced to writing, signed, and entered of record, the evidence remains part of the summary judgment proof even if a party has objected to an opponent’s summary judgment evidence. See Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166 (Tex. 2018), citing Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 842 (Tex.App.–Dallas 2003, no pet.). Because there was no ruling on the County’s objection below, we are constrained to accept the news article at face value. See also Tex.r.evid. 802 (“Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.”).” Cty. of El Paso v. Baker, No. 08-18-00012-CV, 2019 Tex. App. LEXIS 4498, at *14-15 (Tex. App.—El Paso May 31, 2019)

Attorney’s Fees (TCPA): “Although Bresenhan requested attorney’s fees under Section 27.009(b) in his response to Calkins and Norman’s TCPA motion to dismiss, the appellate record does not include a written or oral ruling [*23] on his request. See Tex. R. App. P. 33.1(a)(2). The probate court’s written order denying the motion to dismiss states: ‘As requested, the Court takes judicial notice of the contents of the Court’s file, and at this time, the motion to dismiss of Richard Calkins, and Susan C. Norman, under Chapter 27 of the Texas Civil Practice & Remedies Code is DENIED.’ It does not include any language refusing to award Bresenhan attorney’s fees. Nor does it implicitly deny Bresenhan’s fees request, as the denial of a respondent’s attorney’s fees does not necessarily flow from the denial of a motion to dismiss. See Tex. Civ. Prac. & Rem. Code §§ 27.003, .009(b). Quite the opposite,  a finding that a motion to dismiss is not well taken must precede an award of the respondent’s attorney’s fees under Section 27.009(b). See id. § 27.009(b) (requiring finding that motion to dismiss “is frivolous or solely intended to delay” before court may award attorney’s fees to respondent). Likewise, no oral ruling appears in the court reporter’s transcript. During argument on Bresenhan’s fee request, the probate court questioned whether Bresenhan had timely filed the request and supporting affidavit under the local rules. Rather than argue the timeliness of the request or press for the probate court for a ruling, [*24] Bresenhan responded: “All right. Fine. Then we’ll just limit to denying the motion.” And the probate court signed an order to that effect. By failing to obtain a ruling from the probate court, Bresenhan has not preserved for appellate review any issue regarding his request for attorney’s fees. See Tex. R. App. P. 33.1(a)(2); see also Jackson, 2006 Tex. App. LEXIS 9495, 2006 WL 3095384, at *3; Kadhum, 2006 Tex. App. LEXIS 3401, 2006 WL 1125240, at *2 n.4. Accordingly, we overrule his issues on appeal.” In re Estate of Calkins, No. 01-18-00160-CV, 2019 Tex. App. LEXIS 4448, at *22-24 (Tex. App.—Houston [1st Dist.] May 30, 2019)

Discovery: “In its first issue, the County challenges the district court’s order “refusing to permit” the County to conduct discovery as to the reasonableness of EEG’s costs. Specifically, the County wanted to depose an EEG witness before the district court’s hearing on the motion for costs. However, the County did not obtain an adverse ruling from the district court to preserve this issue for appeal. See Tex. R. App. P. 33.1(a). First, the County never noticed the deposition of an EEG witness. Second, the County did not request a continuance to depose an EEG witness before the motion for costs was heard. Third, the County did not renew its announcement of “not ready” for an evidentiary hearing when the district court stated its intent to proceed with the hearing or when Owens took the stand to testify in support of EEG’s calculation of its costs for production of documents. On this record, we cannot conclude that the County has shown that [*9] the district court refused to permit discovery as to the reasonableness of EEG’s costs. Accordingly, we overrule the County’s first issue.” Wichita Cty. v. Envtl. Eng’g & Geotechnics, Inc., No. 03-18-00434-CV, 2019 Tex. App. LEXIS 4488, at *8-9 (Tex. App.—Austin May 31, 2019)

All for now.  More next week.

Yours, Steve


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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