Error Preservation in Texas Civil Cases, April 24, 2021

April 24, 2021

Dear Friends:

Some 76 years ago today, in 1945, one Charlie R. Hayes enlisted in the Army.  With Germany’s surrender in a few days, all that remained was to train for the invasion of the Japanese home islands–an invasion that did not occur, hence allowing said Charlie R. to return home, marry, serve as a deputy sheriff, work as a materials warehouseman, chair the local school board, referee football games, coach baseball (and serve as commissioner of the local Little League), serve on the board of lay leaders of the local Methodist Church, and, most importantly for this author, have children, thus indirectly providing you with the following.

Table of Contents

The Supreme Court pretty emphatically reaffirmed that jurisdiction is an issue which can first be raised on appeal–and therefore a jurisdictional holding “can never be dicta”

Complaints that evidence is conclusory can first be raised on appeal

You have to comply with the pertinent rules


Your complaint on appeal must comport with the complaint you made at trial

Jury Charge

You must comply with the pertinent statutes in charging your case in such a way to get every finding you need

Jury Charge (Contribution)

While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court

Expert Reports
Constitution (Continuance)
Dismissal with Prejudice
Jury Charge


The Supreme Court pretty emphatically reaffirmed that jurisdiction is an issue which can first be raised on appeal–and therefore a jurisdictional holding “can never be dicta”:

Jurisdiction: “With more rhetoric than logic, the City of Houston insists that City of Laredo should not be followed and was wrongly decided. The City dismisses our jurisdictional holding as dicta. But a jurisdictional holding can never be dicta because subject-matter jurisdiction must exist before we can consider the merits, a challenge to it cannot be waived, and “we have an obligation to examine our jurisdiction any time it is in doubt”. The City argues that City of Laredo is directly contrary to [*14] Morales, even though the sodomy statute at issue in Morales was never enforced, and the City of Laredo adopted its antilitter ordinance precisely to enforce it. The City argues that the City of Austin’s cemetery ordinance threatened the total destruction of the value of the challenger’s property, while the City of Laredo’s regulations posed much less of a threat to the property of the Merchants Association. But the threat of prosecution and the fines imposed in each situation were similar.” Tex. Propane Gas Ass’n v. City of Hous., No. 19-0767, 2021 Tex. LEXIS 302, at *13-14 (Apr. 16, 2021)

Complaints that evidence is conclusory can first be raised on appeal.

Evidence: “In his reply brief, Smartt argues for the first time that the certificate is conclusory. Complaints that evidence is conclusory may be raised for the first time on appeal.  . . . But, explained above, [*14] the legislature has declared that a Comptroller’s certificate is prima facie evidence of the amount owed. Because Smartt produced no evidence to rebut the certificate, the certificate alone is sufficient proof of the amounts owed.” Smartt v. State, No. 14-20-00110-CV, 2021 Tex. App. LEXIS 2935, at *13-14 (Tex. App.—Houston [14th Dist.] Apr. 20, 2021)

You have to comply with the pertinent rules:

Limitations: “As Franco points out, however, the statute of limitations is an affirmative defense, and a defendant therefore “bears the initial burden to plead, prove, and secure findings to sustain its plea of limitations.” Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988); . . . . Tex.R.civ.P. 94 . . . In the present case, Zavala did not expressly plead limitations as an affirmative defense in response to Franco’s petition or in response to his motion for summary judgment. At the summary judgment hearing, however, Zavala orally expressed a general concern that Franco’s lawsuit might be barred by the statute of limitations, as the parties’ divorce decree had been entered over 30 years before. However, she did not request a continuance of the proceedings to address the limitations issue or seek permission to file a pleading raising the issue. Nor did she ask the trial court to make a ruling on the question of whether Franco’s lawsuit was barred by the statute of limitations. We therefore conclude that she did not adequately preserve this issue for our review.” Zavala v. Franco, No. 08-20-00163-CV, 2021 Tex. App. LEXIS 2951, at *11 (Tex. App.—El Paso Apr. 19, 2021)

Your complaint on appeal must comport with the complaint you made at trial.

Jury Charge: “These definitions for employer and employee are pulled from the Federal Motor Carrier Safety Regulations (FMCSR). Concerning these definitions, appellants [*7] made the following objection to the trial court: “Omega Freight, which is the last one on the list, is not a motor carrier. It’s not a driver. It’s a broker. So these definitions would not apply to Omega Freight.” The objection made no mention of ANCA or JNM. Appellants also did not complain that the definitions were erroneous; rather, they complained that the definition did not apply to Omega. In contrast, appellants make the following argument on appeal: “Congress did not intend drivers to benefit from the ’employment’ definitions of the [FMSCR] in lawsuits against the motor carriers who hired them.” In other words, they argue that the definitions are improper because the FMCSR is intended to protect third-party members of the public, not the employees themselves. They additionally argue on appeal that the FMSCR definitions “do not alter state-law employment relationships.” However, none of the objections to the charge raised on appeal comport with the objections appellants made to the trial court. See Saenz-Guerrero, 587 S.W.3d at 194. Therefore, this issue is not preserved for our review. See id.; see also Tex. R. App. P. 33.1.; Tex. R. Civ. P. 272 (stating that any objections to the charge that are not presented to the trial court in writing or dictated [*8] to the court reporter in the court’s presence before the charge is read to the jury “shall be considered waived”).” JNM Express, LLC v. Lozano, No. 13-19-00374-CV, 2021 Tex. App. LEXIS 3036, at *6-8 (Tex. App.—Corpus Christi Apr. 22, 2021)

Though long, this case emphasizes that you must comply with the pertinent statutes in charging your case in such a way to get every finding you need.

Jury Charge (Contribution): “Although Ziehl maintains Tornado failed to plead a contribution claim against him, we need not resolve that argument. For purposes of this appeal, we will assume without deciding that Tornado pleaded a claim for contribution against Ziehl. See TEX. CIV. PRAC. & REM. CODE § 33.016(a). As such, Tornado assumed the roll[sic] of plaintiff with respect to its contribution claim and, therefore, had the burden to secure proper findings to support that theory of recovery. See Levine, 537 S.W.3d at 481.

It is uncontested that no jury instruction pursuant to section 33.016(c) was requested and none was given. See Tex. Civ. Prac. & Rem. Code § 33.016. Tornado maintains it was not required to do so because Question 2 fulfilled the statute’s requirement that a jury determine each contribution defendant’s percentage of responsibility.

Section 33.016(c) states:

The trier of fact shall determine as a separate issue or finding of fact the percentage of responsibility with respect to each contribution defendant and [*8] these findings shall be solely for the purposes of this section and Section 33.015 and not as a part of the percentages of responsibility determined under Section 33.003. Only the percentage of responsibility of each defendant and contribution defendant shall be included in this determination.

Id. When used in a statute, the word “shall” is generally understood as a mandatory term that creates a duty or condition.  . . .

Using the word “shall” three times in section 33.016(c), the Legislature specifically and clearly [*9] imposed an obligation on the trier of fact to make a separate finding of the percentage of responsibility for each contribution defendant. The finding must be solely for the purpose of section 33.016 and cannot be part of the percentage of responsibility determined pursuant to section 33.003. See Tex. Civ. Prac. & Rem. Code § 33.016(c). Additionally, the statute requires that only the defendant and contribution defendant be included in this percentage of responsibility determination. See id.

In this case, the jury was not asked to make a section 33.016 determination, and Tornado did not request a jury instruction pursuant to section 33.016. Although the jury was asked about the percentage of responsibility, if any, attributable to Tornado, Luviano, SCR Construction Company, and Ziehl in Question 2, Question 2 was given pursuant to section 33.003. Section 33.016 specifically states the section 33.003 determination may not be used when making the section 33.016 determination. Additionally, Question 2 lists the names of four parties (Tornado, Luviano, SCR Construction Company, and Ziehl) and is not limited to the defendant and contribution defendant as required by section 33.016. Question 2 does not satisfy the requirements of section 33.016(c). Using Question 2 to satisfy section 33.016(c) would necessitate ignoring the plain language of the statute, which violates the principles [*10] of statutory construction.

Tornado argues that Question 2 functionally “did exactly as the statute requires—from the perspective of the contribution claim.” We need not assess Tornado’s argument in this instance because we are not empowered to ignore the clear statutory language and determine whether, in this particular case, one question could serve the purposes of sections 33.003 and 33.016. “[O]ur purpose is to effectuate the Legislature’s intent by giving effect to every word, clause, and sentence.” Ignoring the Legislature’s mandate requiring separate questions would be inconsistent with the principles of statutory interpretation.

The statute is clear: the jury must be given a separate question pursuant to section 33.016. In this case, Tornado did not request a section 33.016 question, and the trial court did not charge the jury pursuant to section 33.016. Because the statute makes the question mandatory and the question was neither requested nor given, we conclude the theory of recovery is waived and Tornado is not entitled to contribution from Ziehl.” Ziehl v. Tornado Bus Co., No. 05-19-00901-CV, 2021 Tex. App. LEXIS 3070, at *7 (Tex. App.—Dallas Apr. 22, 2021)

All for now.  Y’all stay safe and well.

Yours, Steve Hayes; 817/371-8759;


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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