April 12, 2021
Dear Folks:
Still catching up, but I anticipate I will have done so by the time this weekend rolls around.
Table of Contents
Sometimes, the circumstances will show that you had no reason to complain before you did
Child Support
You have to get a ruling on your objection–though I will point out that there are courts that hold that objections about the conclusory nature of an affidavit can first be raised on appeal
Affidavit
You have to comply with the pertinent rules
Attorney (Withdrawal)
Necessary Party
Summary Judgment
Your complaint on appeal must comport with your complaint at trial
Evidence
Blurbs
Sometimes, the circumstances will show that you had no reason to complain before you did.
Child Support: “The record reflects that in her motion, Mother specifically requested the trial court order Father to pay $214.08 in uninsured medical or healthcare expenses. Father argues Mother did not comply with section 157.002 because she requested the trial court order Father to pay in excess of $214.08 for expenses that were never plead and for which Father had no notice. Mother responds that Father did not file special exceptions to her motion to enforce and thus waived any error. However, Father had no reason to believe he would have needed to specially except to Mother’s pleadings until the time of trial when she sought reimbursement for an amount in excess of $214.08. And, once Father elicited testimony from Mother on cross-examination that she had never sought reimbursement from Father before the hearing, he objected to her seeking reimbursement in an amount over $214.08. Thus, we hold Father did not waive any error.” In the Interest of A.V.T., No. 04-19-00544-CV, 2021 Tex. App. LEXIS 2424, at *3 (Tex. App.—San Antonio Mar. 31, 2021)
You have to get a ruling on your objection–though I will point out that there are courts that hold that objections about the conclusory nature of an affidavit can first be raised on appeal.
Affidavit: “Duffin objected to paragraphs 4-12 of Driskell’s affidavit and requested that they be stricken, maintaining that Driskell’s “sham affidavit” did not establish the essential elements of necessary use or raise a fact issue. Duffin also objected to the affidavit as conclusory.. . . Generally, to preserve an objection for appellate review, the trial court must either make an express or implicit ruling. Tex. R. App. P. 33.1. The trial court did not expressly rule in writing or orally rule on Duffin’s objections to Driskell’s evidence. . . . Duffin’s objections based on Driskill’s alleged “sham affidavit” is an attack on the form of the affidavit, and not its substance, such that it must be first addressed by the trial court. . . . Duffin’s failure to obtain a ruling from the trial court on her sham affidavit and conclusory objections to Driskell’s affidavit failed to preserve error for our review on appeal. See Tex. R. App. P. 33.1(a)(2)(A).” Driskell v. Concrete Raising Corp., No. 14-19-00117-CV, 2021 Tex. App. LEXIS 2389, at *21-23 (Tex. App.—Houston [14th Dist.] Mar. 30, 2021)
You have to comply with the pertinent rules.
Attorney (Withdrawal): “The motion for new trial is devoid of any claim that the trial attorney’s motion to withdraw should have been rejected by the trial court pursuant to Rule 10. . . . Because López’s motion for new trial failed to raise a Rule 10 complaint he did not preserve his claim of error for our review.” López v. Rocky Creek Partners, LLC, No. 04-19-00722-CV, 2021 Tex. App. LEXIS 2435, at *6 (Tex. App.—San Antonio Mar. 31, 2021)
Necessary Party: “Hernandez did not raise the alleged absence of a necessary party by a verified plea in abatement or by special exception and did not make any attempt to implead or substitute the temporary [*12] administrator as a party. See Tex. R. Civ. P. 93(4); Khalilnia v. Fed. Home Loan Mortg. Corp., No. 01-12-00573-CV, 2013 Tex. App. LEXIS 2991, 2013 WL 1183311, at *4 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, pet. denied) (mem. op.). Hernandez did not specifically raise the alleged failure to join the temporary administrator until her response to the motion for summary judgment. This was insufficient to preserve the issue for review.” Hinojosa v. Fin. of Am. Reverse, LLC, No. 04-19-00787-CV, 2021 Tex. App. LEXIS 2438, at *11-12 (Tex. App.—San Antonio Mar. 31, 2021)
Summary Judgment: “To preserve her complaint for our consideration on appeal, Arliscia needed to raise this argument in her response to Seiler’s motion for partial summary judgment. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer[,] or other response shall not be considered on appeal as grounds for reversal.”); . . . .She did not. And to the extent Arliscia complains of an error in the judgment, Arliscia needed to inform the trial court of her objection by a motion to amend or correct the judgment, a motion for new trial, or some other similar method to preserve error. . . . Arliscia has done neither. As such, this argument is waived. See Tex. R. App. P. 33.1(a);” In the Estate of Irving, No. 13-20-00081-CV, 2021 Tex. App. LEXIS 2501, at *9 (Tex. App.—Corpus Christi Apr. 1, 2021)
Your complaint on appeal must comport with your complaint at trial.
Evidence: “At trial, Guest lodged a hearsay objection to this evidence but did not object that the evidence was inadmissible under Rule 410. Because Guest’s argument on appeal that Rule 410 prohibited the admission of his no-contest plea does not comport with the ground he asserted at trial, Guest has failed to preserve his complaint for appellate review. See Tex. R. App. P. 33.1(a)(1). We overrule Guest’s fourth issue.” In re Commitment of Guest, No. 02-19-00295-CV, 2021 Tex. App. LEXIS 2572, at *29 (Tex. App.—Fort Worth Apr. 1, 2021)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com