Error Preservation in Texas Civil Cases, April 18, 2019

Dear All:

Table of Contents


Some issues that can be raised for the first time on appeal: lack of subject matter jurisdiction (standing), and the fact that an unsigned mediated settlement agreement in a family law matter is not binding:


Parent Child Relationship: “As a preliminary matter, we address Paternal Grandmother’s argument that we should not address Maternal Grandmother’s challenge to her standing on mandamus because Maternal Grandmother did not object to her standing in the trial court. However, subject matter jurisdiction cannot be waived or conferred by agreement and can be raised at any time. See In re D.S., 555 S.W.3d 301, 314 (Tex. App.—Dallas 2018, pet. filed). Accordingly, we will address whether the trial court erred in concluding at the temporary orders hearing that Paternal Grandmother had standing.” In re Nelke, No. 05-19-00050-CV, 2019 Tex. App. LEXIS 2754, at *4-5 (Tex. App.—Dallas Apr. 5, 2019)

Mediated Settlement Agreement: “We agree with the court’s reasoning in Lockwood. Considering [*8] the plain language of the statute and the important rights and interests at stake in SAPCR proceedings, strict compliance with section 153.0071(d) is essential to forming a binding and irrevocable agreement. See In re H.H., No. 05-15-01322-CV, 2016 Tex. App. LEXIS 1520, 2016 WL 556131, at *3 (Tex. App.—Dallas Feb. 12, 2016, no pet.) (mem. op.) (concluding mediated settlement agreement not binding on father when he failed to sign it). In this case, it is undisputed Father did not sign the rule 11 agreement, which stated in bold, capital letters, in part, that “THIS AGREEMENT MEETS THE REQUIREMENTS OF SECTION 153.0071(d) OF THE TEXAS FAMILY CODE.” Accordingly, the statute’s requirements were not satisfied, and the agreement is no evidence supporting the trial court’s termination order. See id. In reaching this decision, we reject the State’s argument that Father waived his complaint by failing to object to the rule 11 agreement. 2016 Tex. App. LEXIS 1520, [WL] at *1-2 (concluding unsigned MSA was binding on Father pursuant to section 153.0071 despite father not raising argument in motion for new trial).” In the Interest of J.S., No. 05-18-01328-CV, 2019 Tex. App. LEXIS 2549, at *7-8 (Tex. App.—Dallas Mar. 29, 2019)

A complaint was not sufficiently specific:


Judgment: “We first address whether Jonjak preserved his argument that the divorce decree varies from the terms of the MSA. To preserve an issue for appellate review, a party must make a timely request, motion, or objection stating the grounds for the ruling “with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a). The trial court must rule or the party urging the objection must object to its failure to rule. Id. The preservation-of-error requirement “conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds.” In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). Griffith argues Jonjak never gave the district court this opportunity because he never challenged whether awarding “interest, dividends, gains, or losses” was proper. Jonjak did not explicitly make this argument in the hearing but submitted a proposed decree that awarded Griffith the [*6] flat sum of $962,000 and argued she was entitled to only that sum. In his motion for new trial, Jonjak argued more explicitly that this language was improper because the MSA “did not mention what would happen to gains and losses in the account for payment from the 401k.” We conclude Jonjak raised this issue clearly enough to preserve error.” Jonjak v. Griffith, No. 03-18-00118-CV, 2019 Tex. App. LEXIS 2977, at *5-6 (Tex. App.—Austin Apr. 12, 2019)

Parties did not waive a complaint as to the form of the judgment:


Judgment: “The record before us shows that even though the companies moved the trial court to render judgment, they also informed the trial court that they disagreed with the content and result of the proposed judgment. See Hooks v. Samson Lone Star, Ltd. P’shp, 457 S.W.3d 52, 67 (Tex. 2015) (holding that a party who moved for entry of judgment did not waive his right to appeal when he specifically reserved the right to challenge prior court orders in his motion to enter judgment); Fojtik, 775 S.W.2d at 633 (concluding that a reservation contained in a motion to enter judgment preserved the movants’ right to complain of the judgment). We conclude that by filing a qualified motion to render judgement, the companies preserved their complaint for appellate review.” Davenport v. Hall, No. 04-14-00581-CV, 2019 Tex. App. LEXIS 2848, at *21-22 (Tex. App.—San Antonio Apr. 10, 2019)

Judgment: “In general, a consent judgment has the same force as a judgment rendered after litigation, except that the parties’ consent excuses error and operates to end all controversy between them. See McCray, 584 S.W.2d at 281; Johnson, 2010 Tex. App. LEXIS 8437, 2010 WL 4156459, at *6. Excepting jurisdictional error, a party’s consent to the trial court’s entry of judgment waives any error contained in the judgment, and that party has nothing to properly present for appellate review. See Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex. App.-Dallas 2008, no pet.); Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.-Dallas 1997, no pet.); see also Gross v. Dannatt, No. 13-15-00309-CV, 2017 Tex. App. LEXIS 5710, 2017 WL 2705471, at *1 (Tex. App.-Corpus Christi-Edinburg June 22, 2017, pet. denied) (mem. op.), cert. denied, No. 18-7342, 2019 U.S. LEXIS 1940, 2019 WL 1231849 (U.S. Mar. 18, 2019). Accordingly, a party cannot appeal from a judgment to which it has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation. See Boufaissal, 251 S.W.3d at 161-62; Baw, 949 S.W.2d at 766.

To have a consent judgment, each party must explicitly and unmistakably give its consent. See Baw, 949 S.W.2d at 766; see also Hicks, 348 S.W.3d at 283. A trial court cannot render a valid agreed judgment absent consent at the time it is rendered. See Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per curiam); Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995); see also Vega v. Vega, No. 07-14-00208-CV, 2016 Tex. App. LEXIS 1767, 2016 WL 735967, at *2 (Tex. App.-Amarillo Feb. 18, 2016, no pet.) (mem. op.); Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex. App.-Corpus Christi-Edinburg 1995, no writ). The presence of a party’s signature approving the decree does not render the decree an agreed or consent judgment. See Durden v. McClure, 281 S.W.3d 137, 140 (Tex. App.-San Antonio 2008, no pet.). A party who approves only the form of the judgment [*10] forfeits no right to appeal. See Baw, 949 S.W.2d at 766-67. Further, the phrase “approved as to form and substance” standing alone does not transform a judgment into a consent judgment. See Baw, 949 S.W.2d at 767; see also Hicks, 348 S.W.3d at 283; Durden, 281 S.W.3d at 140; cf. Boufaissal, 251 S.W.3d at 162 (Wife’s signature signified her approval and consent to terms of agreed decree as to both form and substance and waived her right to appeal). However, the phrase “approved as to form and substance” may describe an agreed judgment when coupled with additional recitations in the judgment. See Durden, 281 S.W.3d at 140. For example, the body of the consent judgment must also suggest that the judgment was rendered by consent. See Hicks, 348 S.W.3d at 283. When a consent judgment is rendered without consent or is not in strict compliance with the terms of the parties’ agreement, the judgment must be set aside. See Chisholm, 209 S.W.3d at 98; see also Vega, 2016 Tex. App. LEXIS 1767, 2016 WL 735967, at *2; Sohocki, 897 S.W.2d at 424.
Though the body of the agreed decree contains language suggesting that the judgment was rendered by consent, it was signed only by Father and approved by the parties’ attorneys only as to form; it was not signed by Mother. Mother immediately objected to the agreed decree by filing a motion for new trial that argued, in part, that the agreed decree added terms and language that did not appear in either the partial MSA or the ISA and was not agreed [*12] on by the parties.
Based on the record before us, we cannot conclude that Mother consented to the agreed decree at the time it was rendered.” In the Interest of R.S., No. 05-17-00848-CV, 2019 Tex. App. LEXIS 3013, at *8 (Tex. App.-Dallas Apr. 12, 2019)

A party’s post trial motions preserved a complaint :


Double Recovery: “Cho asserts as an initial matter that, by permitting Kim and Lee to recover damages for both “Misapplication of initial investment” and “Construction Costs,” the trial court’s final judgment impermissibly grants Kim and Lee a double recovery. Kim and Lee contend that Cho waived any error with respect to this contention. We reject their waiver argument. . . . An objection asserting that the plaintiff failed to elect its remedy preserves a double recovery complaint for appellate review.. . . The arguments raised in Cho’s post-verdict motions preserve his double recovery argument for our review. In his new trial motion, Cho objected to the amounts the jury assessed for “Misapplication of initial investment” and “Construction Costs,” asserting that the dollar amounts were “excessive.” In his motion to modify, correct, or reform the final judgment, Cho challenged the final judgment’s award of damages for “Misapplication of initial investment” and “Construction Costs,” arguing that the damages award “violated the one-satisfaction rule.” Cho requested that the final judgment be corrected to reflect that Kim and Lee were entitled only to a single recovery. These arguments preserve the double recovery [*42] challenge Cho advances on appeal.” Jang Won Cho v. Kun Sik Kim, No. 14-16-00962-CV, 2019 Tex. App. LEXIS 2603, at *40-42 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019)

You have to get a ruling on your complaints:


Affirmative Defenses: “To adequately preserve an error for review on appeal, Rule 33.1 of the Texas Rules of Appellate Procedure requires the record to show (1) that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, and (2) that the trial court expressly or implicitly ruled on the request, objection, or motion. See Tex. R. App. P. 33.1. Here, Caviness filed with the district clerk a “challenge to plaintiff’s standing, bar due to assumption of risk, statute of frauds, plea to jurisdiction, illegal agreement, and motion to dismiss.” In this filing, Caviness made the same complaints regarding subject-matter jurisdiction that he now presents in this appeal. The record does not reveal, however, that Caviness brought these complaints to the attention of the trial court or that he obtained a ruling on them. See id. In addition, HN5 although a challenge to subject-matter jurisdiction may be raised for the first time on appeal, see, e.g., Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012), we will not consider the merits of Caviness’s “jurisdictional” issues in this appeal.  Subject-matter [*10] jurisdiction refers to the court’s power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); Assignees of Best Buy v. Combs, 395 S.W.3d 847, 860 (Tex. App.—Austin 2013, pet. denied). Although Caviness frames his complaints as challenges to the court’s subject-matter jurisdiction, they are more properly characterized as challenges to High Profile’s ability to sue. At its core, Caviness’s “jurisdictional” argument is that High Profile’s claims against him are contractually barred or waived, which goes to the merits of the case and not to the court’s power to decide the case. See Yasuda Fire & Marine Co. of Am. v. Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (concluding that issue regarding third-party’s lack of “standing” to enforce contract was not jurisdictional because it did not “affect[] the court’s power to make a legal decision or enter a judgment”). Because Caviness has failed to preserve these arguments for appeal, we will not address them.” Caviness v. High Profile Promotions, Inc., No. 03-17-00553-CV, 2019 Tex. App. LEXIS 2735, at *9 (Tex. App.—Austin Apr. 5, 2019)

Continuance: “Antero conditionally argues that we should remand without rendering judgment dismissing EnerQuest in order to permit the trial court to consider whether more jurisdictional discovery is warranted. But Antero does not direct us to anywhere in the record to show that the motion for continuance was ruled on nor have we located “a clearly implied ruling by the trial court.” Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166 (Tex. 2018); see Epicous Adventure Travel, LLC v. Tateossian, Inc., No. 08-18-00057-CV, 2019 Tex. App. LEXIS 1409, 2019 WL 926278, at *10 (Tex. App.—El Paso Feb. 26, 2019, no pet. h.) (relying on Seim in overruling challenge to trial court’s failure to permit jurisdictional discovery in special appearance proceeding in part because the party seeking such discovery never “obtained a ruling on its request for additional discovery” and “[o]btaining a ruling, or at least a refusal to rule (supported by an objection to the refusal to rule) is an elemental requirement for preservation of error”). Accordingly, any error in the failure to permit jurisdictional discovery has not been preserved for our review. See Tex. R. App. P. 33.1(a)(2); Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiffs] failed to obtain a ruling from the trial court on the motion for continuance and therefore, failed to preserve error.”).” Enerquest Oil & Gas, L.L.C. v. Antero Res. Corp., No. 02-18-00178-CV, 2019 Tex. App. LEXIS 3000, at *7 n.6 (Tex. App.—Fort Worth Apr. 11, 2019)

Summary Judgment: “In Ewing’s amended response, it objected to all of TIADA’s summary judgment evidence, arguing that it should be excluded because TIADA failed to timely disclose the witnesses and evidence in response to Ewing’s requests for disclosure. During the summary judgment hearing, Ewing again raised its objection to TIADA’s summary judgment evidence. However, Ewing failed to obtain any ruling on any such objection. Because no ruling on any objection was ever reduced to writing, signed, and entered of record, this issue was not preserved for our review; thus, TIADA’s evidence remains a part of its summary judgment proof. See Seim, 551 S.W.3d at166. We overrule this point of error.” Ewing Ins. Servs. v. Tex. Indep. Auto. Dealers Ass’n, No. 06-18-00090-CV, 2019 Tex. App. LEXIS 2983, at *25 (Tex. App.—Texarkana Apr. 12, 2019)

Lots of cases involved complaints that were not raised in the trial court.

I hope this helps.  Y’all take good care.

Yours, Steve


Law Office of Steven K. Hayes

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Fort Worth, Texas   76102
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