Error Preservation in Texas Civil Cases, April 28, 2018

Dear All:

Table of Contents

The Supreme Court recently confirmed that a party “was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive” in order to preserve an issue, reminding us that “parties are free [on appeal] to construct new arguments in support of issues properly before the Court”:


Anti-SLAAP: “The court of appeals found that Adams failed to preserve arguments based on community or environmental well-being by failing to raise them in the trial court. S.W.3d at n.4, 2016 Tex. App. LEXIS 6840. We are not convinced that Adams failed to argue community and environmental well-being in the trial court, as he expressly mentioned these concerns at the hearing on the motion to dismiss. Further, the court of appeals imposed too strict a view of error preservation in this context. Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case. Adams raised as an issue in the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about a matter of public concern. He was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive. See Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”);” Adams v. Starside Custom Builders, LLC, No. 16-0786, 2018 Tex. LEXIS 327, at *14-15 (Apr. 20, 2018)

In light of the Supreme Court’s recent Menchada decision, with its several competing opinions about conflicting jury answers, the following courts’ of appeals decision that a party preserved an objection to conflicting jury answers bear noting–as does one court’s holding that the objecting party did not preserve its complaint about the trial court not giving the parties enough time to object to the verdict:


Conflicting Jury Answers: “We first consider Rios’s threshold argument that Burnett waived her first issue regarding the perceived irreconcilable conflict in the jury’s verdict by not objecting before the jury was discharged. . . . Burnett acknowledges that generally a party must raise an objection under Texas Rule of Civil Procedure 295 before the trial court accepts the verdict or the conflict in the jury’s answers is waived. See Tex. R. Civ. P. 295. According to Burnett, trial counsel promptly objected to the conflicting jury answers at the first opportunity. Burnett also contends that the appellate rules, such as preservation under rule 33.1, are to be liberally construed in favor of the right to appeal. The trial transcript contains the notation “(Jury released)” just before Burnett’s trial counsel informed the trial court that he “wanted to put an objection on the record” and objected [*8] to the entry of the verdict. However, the trial court did not announce on the record that the jury had been released until after Burnett had lodged her objection. The trial court also clearly indicated its awareness of the issue and that it anticipated Burnett’s filing “a post-verdict motion to that effect . . . if you care to do it.” Unlike in Cressman Tubular Products, Burnett filed such motion and expressly requested a new trial on the conflicting-findings issue, and the trial court denied Burnett’s motion. Cf. 322 S.W.3d at 462-63. Based on this record, we do not find waiver.” Burnett v. Rios, No. 14-17-00438-CV, 2018 Tex. App. LEXIS 2660, at *7-8 (App.—Houston [14th Dist.] Apr. 17, 2018)

Jury Verdict: “ In her second issue, Burnett argues that a new trial should be granted because the trial court preemptively accepted the verdict sua spontewithout permitting objections and prematurely released the jury. Rios responds that Burnett also waived this issue. This time, we agree. The record does not reveal that Burnett objected to the trial court’s allegedly defective conduct either verbally at the time or in her written motion for new trial, or that the trial court expressly or implicitly ruled on her complaint. We conclude that this issue was not properly preserved. See Tex. R. App. P. 33.1(a);” Burnett v. Rios, No. 14-17-00438-CV, 2018 Tex. App. LEXIS 2660, at *16-17 (App.—Houston [14th Dist.] Apr. 17, 2018)

Conflicting Jury Answers: “Under his sole issue, Sauceda also asserts that the trial court erred in failing to ask the jury to resolve the alleged conflict in the findings that Sauceda was not entitled to damages for past physical pain and mental anguish and future physical pain and mental anguish, and the jury’s awarding Sauceda of $3,750 for medical expenses incurred in the past. Sauceda did not request that the trial court ask the jury to resolve conflicts in its findings before the jury was dismissed, so Sauceda did not preserve error on this complaint. See Tex. R. Civ. P. 295; Meek v. Onstad, 430 S.W.3d 601, 605-06 (Tex. App.-Houston [14th Dist.] 2014, no pet.); Cressman Tubular Products Corp. v. Kurt Wisemail Oil & Gas Ltd., 322 S.W.3d 453, 462 (Tex. App.-Houston [14th Dist.] 2010, pet. denied). Even if Sauceda [*10] had preserved error on this argument, we would conclude that the trial court did not err in failing to instruct the jury to resolve conflicts in the findings because the jury reasonably could have concluded that Sauceda was entitled to recover for his past medical expenses but did not have any pain warranting a damages award. See Enright, 330 S.W.3d at 402. We overrule Sauceda’s conflict-in-the-jury-findings issue.” Sauceda v. Hess, No. 14-16-00586-CV, 2018 Tex. App. LEXIS 2842, at *9 (App.—Houston [14th Dist.] Apr. 24, 2018)

In an oil and gas case, the Supreme Court also recently found a party preserved error through its arguments in the trial court:


Oil and Gas: “But without explaining why its reasoning would not also apply to the 28-Acre Tract, the court’s judgment awarded the trial court’s royalty allocations in the 28-Acre Tract instead of 1/4 to each party. Menser argues that the court of appeals erred by awarding her only a 3/32 royalty interest in the 28-Acre Tract, instead of a 1/4 royalty interest. The parties agree that the 28-Acre Tract is part of the 206 acres that the earlier deeds conveyed as the First Tract and that Menser conveyed to Johnson while reserving 1/2 one-half of the minerals, including one-half of the royalties she owned at the time. In the court of appeals, Menser argued that the Perrymans never requested an interest in the 28-Acre Tract in their motions for summary judgment and therefore the trial court’s judgment assigning [*40] them any interest in the tract was in error. The court of appeals held that Menser waived her argument by failing to raise it in the trial court. 494 S.W.3d at 750. Although the court of appeals agreed with Menser’s argument regarding the division of the royalty interests in the 178-Acre Tract-and modified the trial court’s judgment to reflect that-it did not modify the relative interests in the 28-Acre Tract. Id. at 752. On motion for rehearing and on motion for rehearing en banc, Menser argued that the court of appeals should modify its judgment to correct that mathematical error. The court denied the motions. In this Court, Menser reurges her rehearing arguments. We agree that, even if Menser waived her argument that the Perrymans owned no interest in the 28-Acre Tract, she did not waive her argument that the court of appeals should have reexamined the division of royalty interests in that tract. Menser consistently argued that the Perrymans’, Spartan’s, and Menser’s interests all stem from the land in Ben’s First Tract and that Duhig applied to estop Gary and Nancy from claiming more than they could convey to remedy their breach of warranty. Although we disagree that Duhig applies, we agree with Menser’s [*41] ultimate claim that the royalty interests are divided equally among the parties: Leasha, Gary and Nancy, and Menser each own a 1/4 royalty interest in both tracts, Spartan owns a 1/4 royalty interest in the 178-Acre Tract, and third parties (presumably, the Wrights) own a 1/4 royalty interest in the 28-Acre Tract.” Perryman v. Spartan Tex. Six Capital, No. 16-0804, 2018 Tex. LEXIS 350, at *39-41 (Apr. 27, 2018)

You can first raise some complaints on appeal–like legal insufficiency in a bench trial and lack of subject matter jurisdiction:


Legal Insufficiency: “By her third issue, Robinson argues that the evidence supporting the trial court’s award of attorney’s fees is legally insufficient. Appellees respond that Robinson did not preserve this complaint for appeal because she failed to raise the issue in her motion for new trial. But in a civil case tried without a jury, a complaint regarding the sufficiency of the evidence “may be made for the first time on appeal[.]” Tex. R. App. P. 33.1(d); . . . .”An argument that there was no evidence during a bench trial that attorney’s fees were reasonable is a sufficiency-of-the-evidence complaint that may be raised for the first time on appeal.” Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Robinson was not required to present her challenge regarding attorney’s fees to the trial court.” Robinson v. Ochoa, No. 13-16-00357-CV, 2018 Tex. App. LEXIS 2431, at *16-17 (App.—Corpus Christi Apr. 5, 2018)

Legal Insuffficiency: “In his fourth issue, Scott contends the trial court erred by awarding Michelle “costs incurred enforcing and collecting the judgment” when such costs “were not pleaded for or proven.” Specifically, Scott argues (1) the Motion “does not plead or pray for future costs, fees, and expenses, including attorney’s fees, to be incurred in future collections actions,” and (2) the trial court “entered a judgment for future costs, expenses, and fees despite the fact that no pleadings or evidence was [*15] offered in support of such an award.”. . . Texas Rule of Appellate Procedure 33.1(d) provides in part, “In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d). Therefore, we conclude Scott’s complaint of “no evidence” to support “future costs, fees, and expenses” was not “waived.”” Riley v. Riley, No. 05-17-00385-CV, 2018 Tex. App. LEXIS 2644, at *14-15 (App.—Dallas Apr. 16, 2018)

Subject matter jurisdiction: “Beyond its sole issue, though, Brownsville also challenges Rendon’s declaratory action. Brownsville did not contest this cause of action in its plea to the jurisdiction in the trial court or in its initial brief to this Court, but instead asserts for the first time in its reply brief that Rendon failed to exhaust administrative remedies for his declaratory claims. Ordinarily, an appellant must preserve error by presenting its complaint to the trial court in a timely, specific manner and obtaining a ruling thereon. See Tex. R. App. P. 33.1(a). Also, a party may not ordinarily present arguments for the first time in its reply brief. Cebcor Serv. Corp. v. Landscape Design & Constr., Inc., 270 S.W.3d 328, 334 (Tex. App.—Dallas 2008, no pet.); see Tex. R. App. P. 38.3; Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex. 1996). However, exhaustion of administrative remedies is an issue of subject matter jurisdiction. Clint, 487 S.W.3d at 558. Subject matter jurisdiction cannot be created by the parties’ consent or waiver, and parties may challenge subject matter jurisdiction for the first time on appeal. Id.Moreover, “we are obligated to review sua sponte issues affecting jurisdiction.”M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); see Rusk, 392 S.W.3d at 95 (approving review of sovereign immunity on interlocutory appeal from challenge of an expert report, even though no plea to the jurisdiction had been filed). Accordingly, we address Brownsville’s argument concerning Rendon’s declaratory claims.“ Brownsville Indep. Sch. Dist. v. Rendon, No. 13-17-00628-CV, 2018 Tex. App. LEXIS 2587, at *10-11 (App.—Corpus Christi Apr. 12, 2018)

When you adequately and timely assert your complaint, you have preserved it:


Attorney’s Fees: “Turoff contends that Milliken and Mulhall’s challenge to the award of attorney’s fees must fail because they stipulated in the trial court to the amount of Turoff’s reasonable and necessary attorney’s fees. In effect, Turoff maintains that the stipulation waived Milliken and Mulhall’s complaint about Turoff’s failure to segregate. We disagree. . . . [A] stipulation to the amount of reasonable and necessary attorney’s fees for Turoff’s case did not waive Milliken and Mulhall’s complaints about factors other than reasonableness and necessity that must be considered in awarding fees under the UDJA. . . .. The stipulation therefore did not waive Milliken and Mulhall’s complaint that the trial court erred in awarding the full amount of Turoff’s unsegregated attorney’s fees. Moreover, Milliken and Mulhall brought this problem to the trial court’s attention both before and after the stipulation. Before entering into the stipulation, Milliken and Mulhall used their cross-examination of Turoff’s counsel to highlight the failure to segregate attorney’s fees. After entering into the stipulation, Milliken and Mulhall complained in their response to Turoff’s motion for judgment that Turoff had failed to segregate attorney’s fees.” Milliken v. Turoff, No. 14-17-00282-CV, 2018 Tex. App. LEXIS 2652, at *6-8 (App.—Houston [14th Dist.] Apr. 17, 2018)

Expert: “At the outset, we address appellees’ contention appellants failed to preserve their challenge to Rich’s expert testimony because they did not re-urge their objection during Rich’s trial testimony. Appellants filed a motion to exclude Rich’s testimony prior to deposing him. The trial court denied the motion. Appellants then filed a motion to reconsider after deposing Rich. At the hearing, appellants referred to some of Rich’s deposition testimony in urging their objection, and appellees introduced Rich’s file into evidence. At the close of the hearing, the trial court announced it was not going to strike Rich, but would defer ruling, hear Rich’s testimony, and rule accordingly at the time of trial. At the outset of trial, appellants again requested the trial court to reconsider its ruling on the motion to exclude. In response, the trial court stated, “I’m going to overrule or deny your [*13] Motion for Reconsideration.” HN4 To preserve a complaint that expert evidence is unreliable, a party must object to the evidence before trial or when the evidence is offered. See Maritime Overseas Corp. v Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Because appellants raised their objection to Rich’s testifying as an expert both before trial and again at the outset of trial and the trial court denied their motion, we conclude they adequately preserved error for this appeal.” Baker v. Habeeb, No. 05-16-01209-CV, 2018 Tex. App. LEXIS 2721, at *12-13 (App.—Dallas Apr. 18, 2018)

Your objection must be timely:


Evidence: “To preserve a complaint about the admission of evidence for appeal, a party must make a timely and specific objection in the trial court. Tex. R. App. P. 33.1; Tex. R. Evid. 103. . . . During trial, the appellants did not object to any of questions about August’s criminal history. On appeal, the appellants contend that error was “properly preserved” by the motion in limine. A motion in limine does not preserve error on evidentiary rulings because it does not seek a ruling on admissibility.” . . . . When a trial court has denied a motion in limine, a party must object when the evidence is offered to preserve error for appellate review. . . . Because the appellants did not object at trial when August was questioned about his criminal history, we conclude that they did not preserve error as to the admission of evidence regarding his prior convictions. We overrule the third issue.” True Level Masonic Lodge #226, Inc. v. Most Worshipful Prince Hall Grand Lodge, No. 01-16-00339-CV, 2018 Tex. App. LEXIS 2360, at *16-17 (App.—Houston [1st Dist.] Apr. 3, 2018)

Evidence: “During its case-in-chief, Wilmington admitted three exhibits, with multiple subparts, in support of its foreclosure claim, and then rested without calling witnesses. When Wilmington offered its exhibits for admission, the McKeehans raised two objections: (1) that the business-records affidavit supporting the records contained a legal conclusion and (2) that the printouts of payoff and per diem print screens were hearsay. The trial court overruled these objections, to which the McKeehans’ counsel responded, “I think those are the only two that I have any issues with.” The trial court then admitted Exhibits 1, 2, and 3, along with all of their subparts. Wilmington then rested. The McKeehans then moved for a directed verdict, arguing that the Exhibit 1 should be excluded because Wilmington had not responded to their request for disclosure regarding how it had calculated the McKeehans’ default. However, the McKeehans did not raise non-disclosure as a reason for excluding Exhibit 1 at the time it was offered and admitted, thus the argument that it should have been disclosed is waived.” McKeehan v. Wilmington Sav. Fund Soc’y, FSB, No. 01-16-00534-CV, 2018 Tex. App. LEXIS 2601, at *6 (App.—Houston [1st Dist.] Apr. 12, 2018)

You must bring your complaint to the attention of the trial court, and obtain a ruling:


Continuance: “Although attached to Admal’s motion for continuance was a notarized “verification” that the facts contained in the motion were true and correct, neither the motion nor the verification contains a discussion of the evidence Admal needed a continuance to seek. In addition, nothing in the record shows Admal brought his motion for continuance to the attention of the trial court. The mere filing of the motion does not show that it was presented to the court.See Smith v. El Paso Veterans Transitional Living Ctr., No. 08-17-00181-CV, 2018 Tex. App. LEXIS 2019, 2018 WL 1407087, at *1 (Tex. App.—El Paso Mar. 21, 2018, no pet. h.). There is also nothing in the record to show the court ruled on the motion. Admal has failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a).” Admal v. Ventures Tr. 2013 I-H-R, No. 05-16-00912-CV, 2018 Tex. App. LEXIS 2621, at *4 (App.—Dallas Apr. 12, 2018)

Restraining Order: “In her third issue, Pedroza contends that the County Court failed to consider or act on her motion for a restraining order against Tenet based on Tenet’s alleged violation of a consent order issued by the Consumer Financial Protection Bureau. In order to preserve a complaint for appellate review, the record must show that the party brought the complaint to the attention of the trial court [*7] by making a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion. See Tex.R.App.P. 33.1(a). Merely filing a motion with the trial court clerk is insufficient to show that the party brought the motion to the trial court’s attention or requested a ruling. In re Davidson, 153 S.W.3d 490, 491 (Tex.App.–Amarillo 2004, orig. proceeding). There is nothing in the record to show that Pedroza ever presented this motion to the County Court or requested a ruling. Consequently, she has failed to preserve error. Issue Three is overruled.” Pedroza v. Tenet Healthcare Corp., No. 08-16-00221-CV, 2018 Tex. App. LEXIS 2540, at *6-7 (App.—El Paso Apr. 11, 2018)

Your objection must be sufficiently specific:


Evidence: “In this case, the objection Father raised at trial to Caseworker One’s testimony asked that all of her testimony be stricken, and he did not limit his request to that testimony relevant to the Department’s alleged failure to comply with the obligations the Department owed Father to comply with his requests for discovery. Generally, if some portion of the evidence to which an objection is made is admissible, a trial court may overrule an objection that is directed at the evidence as a whole when the party opposing its admission fails to specify those portions of the evidence that are inadmissible. See Tex. R. App. P. 33.1(a)(1)(A) (Error Preservation) (explaining to preserve error an objection must be sufficiently specific to inform the trial court of the complaint); . . . . Even if we assume that Father was entitled to have some portion of Caseworker One’s testimony excluded due to the Department failure to fully and properly respond to Father’s discovery, the trial court was not required to grant the request that Father’s attorney made to strike all of Caseworker One’s testimony. . . . Portions of Caseworker One’s testimony that did not depend on the information the Department failed to disclose were clearly admissible. For example, Caseworker One’s testimony that she explained the requirements of the family service plan to Father is testimony that was both relevant and admissible during the trial. See Tex. R. Evid. 401, 402. Because the trial court properly overruled Father’s request to strike Caseworker One’s testimony in its entirety, the trial court did not abuse its discretion when it overruled Father’s request. Therefore, we overrule issue six.” In the Interest of B.A.M., No. 09-17-00390-CV, 2018 Tex. App. LEXIS 2451, at *31-32 (App.—Beaumont Apr. 5, 2018)

You must comply with other pertinent rules:


Evidence: “Williams sought to introduce, and appellees sought to exclude, the entire investigative report of the DOL. The trial court admitted the report with the exception of the DOL’s conclusions. To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. . . . Thus, when evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence in the record in order to complain of the exclusion on appeal. Tex. R. Evid. 103(a),(b); . . . . An offer of proof preserves error for appeal if: (1) it is made before the court, the court reporter, and opposing counsel, outside the presence of the jury; (2) it is preserved in the reporter’s record; [*6] and (3) it is made before the charge is read to the jury. . . .When no offer of proof is made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exception. . . . A formal bill of exception must be presented to the trial court for its approval, and, if the parties agree to the contents of the bill, the trial court must sign the bill and file it with the trial court clerk. Tex. R. App. P. 33.2(c); . . .Failure to demonstrate the substance of the excluded evidence results in waiver. Tex. R. App. P. 33.1(a)(1)(B); . . . . In this case, Williams did not make an offer of proof or bill of exception regarding the excluded evidence. Therefore, Williams did not assure the DOL report was included in the trial record itself, although it was attached to an earlier response to a motion for summary judgment and was discussed outside the presence of the jury during the trial. In all events, we need not decide whether Williams preserved his complaint concerning the DOL report and potentially create new law on the issue of error preservation, because Williams has failed to demonstrate that any error in excluding the DOL’s conclusion would have been harmful.” Williams v. FlexFrac Transp., LLC, No. 05-16-01032-CV, 2018 Tex. App. LEXIS 2825, at *5-6 (App.—Dallas Apr. 20, 2018)

Evidence: “Dimock next asserts that the trial court committed reversible error by refusing to allow Dimock to make an offer of proof at trial. At trial, Dimock sought to re-offer evidence which was previously submitted for consideration as to the summary judgment orders. Dimock’s counsel stated that the offer of proof also included additional evidence which had been produced or discovered after the summary judgments were entered. He stated, “We just want to recite those to you so that you have an opportunity to reconsider your rulings, reopen the evidence and allow a trial on that.” [*36] Sutherland objected to the presentment of additional evidence. The trial court denied Dimock’s request. An offer of proof serves to preserve errors in excluding evidence. Tex. R. Evid. 103. Dimock did not identify what evidence, if any, had been erroneously excluded by the trial court.” Dimock Operating Co. v. Sutherland Energy Co., LLC, No. 07-16-00230-CV, 2018 Tex. App. LEXIS 2865, at *35-36 (App.—Amarillo Apr. 24, 2018)

Factual Sufficiency: “The Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting a complaint on appeal regarding the factual sufficiency [*3] of the evidence supporting a jury finding. . . . Because Mother has not preserved a factual sufficiency challenge to the jury’s verdict, we overrule her sole point of error on appeal.” In the Interest of E.J.Z., No. 06-17-00109-CV, 2018 Tex. App. LEXIS 2391, at *2-3 (App.—Texarkana Apr. 4, 2018)

Summary Judgment: “As a preliminary matter, we must first set the parameters of what is presently before us to review. Newfield argues in its briefing that Martin waived any arguments on appeal that: (1) the duty to protect the non-unitized Martin Leases acres from drainage was triggered when the Martin Unit well was drilled in 2008, or (2) the lease clause quoted above is ambiguous, because neither argument was made to the trial court. We agree. Issues a non-movant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment. [*8] McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also 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.”). Our review of Martin’s response to Newfield’s motions for summary judgment show that Martin focused their arguments on whether Newfield’s duty to protect against drainage was triggered when Newfield began drilling the Simmons Unit, not the Martin Unit. Furthermore, nothing in Martin’s response asserts that the clauses at issue were ambiguous. Accordingly, without regard to their merits, we conclude that those arguments are waived, and we will not consider them on appeal. See id.” Martin v. Newfield Expl. Co., No. 13-17-00104-CV, 2018 Tex. App. LEXIS 2435, at *7-8 (App.—Corpus Christi Apr. 5, 2018)

I hope this helps. Y’all take care.


Steve Hayes


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
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