Error Preservation in Texas Civil Cases, April 25, 2020

April 25, 2020

Dear All:

I hope all of you remain safe and well.  We have quite a few cases dealing with error preservation this week.

Table of Contents

The Supreme Court weighed in on error preservation this week, in a kind of pedestrian way

Appraisal Clauses

Lack of subject matter jurisdiction-one category of which is the failure to exhaust administrative remedies– may first be raised on appeal
Your complaint must be timely

Hearing

You have to get a ruling on your complaint–which doubles as a way to confirm you presented your complaint to the trial court

Amended Pleading
Assigned Judge
Attorney Disqualification
Continuance
Dual Cases

The complaint you raise on appeal must be the complaint you raised in the trial court

Jury Charge

The Blurbs

The Supreme Court weighed in on error preservation this week, in a kind of pedestrian way:

Appraisal Clauses: “TopDog also contends unilateral appraisal clauses are illusory and thus unenforceable. TopDog did not raise this argument until its motion for rehearing in the trial court and did not pursue it in the court of appeals, nor did the court of appeals address it. We therefore do not consider it, see Tex. R. App. P. 33.1, though the parties are free to brief the issue further on remand.” Biasatti v. GuideOne Nat’l Ins. Co., No. 18-0911, 63 Tex. Sup. Ct. J. 780 n.3, 2020 Tex. LEXIS 319, at *5 (Apr. 17, 2020)

Lack of subject matter jurisdiction–one category of which is the failure to exhaust administrative remedies– may first be raised on appeal:

Exhaustion of Administrative Remedies: “In her first issue, the Chief Appraiser asserts that the trial court lacked subject—matter jurisdiction over Wilson’s lawsuit because he did not exhaust his administrative remedies. n. 2 n. 2 Wilson notes that this issue was not a basis for appellant’s plea to the jurisdiction in the trial court. This issue, however, was raised during the hearing on the plea to the jurisdiction and the trial court’s order stated that it considered the plea to the jurisdiction, the response, “the pleadings of the parties in this case, the briefs and arguments of the parties, and applicable constitutional, statutory, and case authorities . . . .” (emphasis added). See B.C. v. Steak N Shake Operations, Inc., No. 17-1008, 2020 Tex. LEXIS 254, 2020 WL 1482586, at *4 (Tex. March 27, 2020). In addition, subject-matter jurisdiction is an issue that may be raised for the first time on appeal and it may not be waived by the parties. See Texas Air Control Bd., 852 S.W.2d at 445.” Curtis v. Wilson, No. 05-19-00761-CV, 2020 Tex. App. LEXIS 3312, at *3 n.2 (Tex. App.—Dallas Apr. 20, 2020)

Your complaint must be timely:

Hearing: “ Finally, because Mother has not presented authority or argument demonstrating that [*36] the court abused its discretion because it considered the Second SAPCR Order on submission without an oral hearing, or that she raised a timely objection to that process, she has not shown a right to reversal on that ground. See Tex. R. App. P. 33.1, 38.1(i). Mother contends that the trial court “refused to hear evidence on [her] objections,” but the reporter’s record pages cited do not support her assertion. At the hearing, Mother’s counsel informed the trial court that Mother disputed some portions of Father’s proposed final order, but Mother did not bring to the court’s attention the specific disputes she raises here.” In the Interest of M.E.H., No. 14-18-00281-CV, 2020 Tex. App. LEXIS 3467, at *35-36 (Tex. App.—Houston [14th Dist.] Apr. 23, 2020)

You have to get a ruling on your complaint–which doubles as a way to confirm you presented your complaint to the trial court:

Amended Pleading: “In arguing that the trial court failed to consider its defenses in determining the trial plan for the class action, Mosaic fails to mention that it did not amend its pleading to add those defenses until three days before the certification hearing and months after the pleading deadline had passed. Mosaic did not seek leave to amend its pleadings or [*13] otherwise inform the trial court that its trial plan should address those defenses. Mosaic cites to B.C. v. Steak N Shake Operations, No. 17-008, 2020 Tex. LEXIS 254, 2020 WL 1482586 (Tex. Mar. 27, 2020), to assert that we should presume the trial court had the late-filed amended pleading before it but erroneously failed to address the proposed defenses in the class-certification order. See 2020 Tex. LEXIS 254, [WL] at *3 (trial court’s recital in summary judgment that it considered “evidence and arguments of counsel,” without limitation, affirmatively indicated that trial court considered late-filed response and the evidence attached to it). On the contrary, the absence of language in the order addressing the proposed defenses, the pleading’s filing so close to the class-certification hearing date, and Mosaic’s failure to secure leave to file its pleading or even raise its proposed defenses at the hearing all indicate that they were not before the trial court when it signed the order and that Mosaic waived the opportunity to obtain a ruling from the trial court before it filed this interlocutory appeal. As these defenses were not properly presented to the trial court for consideration before its ruling, we do not address them, and their absence from the class-certification order does not constitute an abuse of discretion. [*14] See Tex. R. App. P. 33.1(a).” Mosaic Baybrook One, L.P. v. Cessor, No. 01-18-01057-CV, 2020 Tex. App. LEXIS 3427, at *12-14 (Tex. App.—Houston [1st Dist.] Apr. 23, 2020)

Assigned Judge: “Winegardner next complains [*9] that Judge Brancheau, as an assigned judge, should not have heard both the motion to dismiss and his appeal from justice court in the forcible detainer case. Winegardner does not direct us to, nor do we find, a location in the record indicating he presented this complaint to the administrative judge and obtained an adverse ruling or the administrative judge refused to rule on the complaint and Winegardner objected to the refusal. Error preservation for appellate review requires the complaining party to properly object and obtain an adverse ruling on the record or object to the trial court’s refusal to rule on the objection. Mut. First, LLC, Series 77 v. Butler, No. 05-15-00578-CV, 2016 Tex. App. LEXIS 7665, at *4 (Tex. App.—Dallas July 19, 2016, no pet.) (mem. op.); see Tex. R. App. P. 33.1(a)(1),(2). Because Winegardner did not preserve the complaint he now assigns as error on appeal, nothing is presented for appellate review. Winegardner’s third issue is overruled.” Winegardner v. Hughes, Nos. 07-18-00434-CV, 07-19-00283-CV, 2020 Tex. App. LEXIS 3485, at *8-9 (Tex. App.—Amarillo Apr. 23, 2020)

Attorney Disqualification: “Winegardner next argues the trial court erred by failing to disqualify Hughes’s attorney in the probate case and the appeal from justice court because that attorney is alleged to have a conflict of interest. We are not shown by Winegardner, nor do we find, any location in the record where he presented his attorney-disqualification complaint to the trial court, presented any evidence, or obtained an adverse ruling or a refusal to rule. Tex. R. App. P. 33.1(a)(1),(2). Winegardner’s fifth issue is overruled.” Winegardner v. Hughes, Nos. 07-18-00434-CV, 07-19-00283-CV, 2020 Tex. App. LEXIS 3485, at *10 (Tex. App.—Amarillo Apr. 23, 2020)

Continuance: “Here, while Hood did file a motion for continuance of the summary judgment proceeding, he did not set the motion for a hearing, for submission, or otherwise bring the motion to the trial court’s attention. There is also no indication in the record that Hood objected to the trial court’s failure to rule on his motion for continuance. As a result, we conclude Hood failed to preserve error, if any, on this issue. We overrule Hood’s first issue on appeal.” Hood v. Hanna & Hanna, Inc., No. 14-18-00557-CV, 2020 Tex. App. LEXIS 3472, at *5 (Tex. App.—Houston [14th Dist.] Apr. 23, 2020)

Dual Proceedings: “Through this issue, Winegardner complains that it is “wasteful” to have two legal proceedings regarding Viner’s estate. This issue appears to conflict with Winegardner’s third issue wherein he complains that Judge Brancheau should not have been permitted to hear both matters. Nevertheless, the record does not indicate that Winegardner presented any motion to consolidate the two cases to the trial court, obtained an adverse ruling or a refusal to rule, or that he was harmed by participating in two proceedings rather than one. Because Winegardner did not preserve this complaint for appellate [*11] review, it is overruled. Tex. R. App. P. 33.1(a)(1),(2), 44.1.” Winegardner v. Hughes, Nos. 07-18-00434-CV, 07-19-00283-CV, 2020 Tex. App. LEXIS 3485, at *10-11 (Tex. App.—Amarillo Apr. 23, 2020)

The complaint you raise on appeal must be the complaint you raised in the trial court:

Jury Charge: “Cindy argues on appeal that the instruction given to the jury contained a “misleading oversimplification of the procedural history of the case” and caused her unfair prejudice. She further argues that the Probate Court did not have jurisdiction to consider the Trust during the will contest. Cindy, however, did not object on those grounds to this instruction before the charge was submitted to the jury. Cindy’s only objection to Question No. 15 was [*17] that there was no evidence to support submission of the question to the jury.

Failure to timely object to error in a jury charge constitutes a waiver of that error. Tex. R. Civ. P. 272. “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex. R. Civ. P. 274; see Burbage v. Burbage, 447 S.W.3d 249, 255-58 (Tex. 2014) (holding party waives any objection to jury charge by failing to raise specific objection to proposed submission). Therefore, Cindy waived any error in the instruction given to the jury. We overrule Cindy’s sixth issue.” Harrell v. Stovall, No. 14-18-00991-CV, 2020 Tex. App. LEXIS 3332, at *16-17 (Tex. App.—Houston [14th Dist.] Apr. 21, 2020)

There were also a collection of cases in which parties failed to raise their complaints in the trial court.

Y’all take good care.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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