Error Preservation in Texas Civil Cases, April 3, 2019

Dear All:

Table of Contents

On to the cases.

Some issues–like lack of subject matter jurisdiction, and a parent’s complaint that his attorney had no authority to enter a Rule 11 agreement in a termination proceeding–may be raised for the first time on appeal:


Forcible Detainer: “In his first issue, Burton argues that the county court should have denied Leawood’s motion to dismiss on the grounds of waiver, laches, or quasi-estoppel. Leawood argues that the county court was required to dismiss the claims because it lacked subject matter jurisdiction over Burton’s claims. We agree with Leawood. . . . .

Burton argues that Leawood waived its right to object to the county court’s lack of jurisdiction. According to Burton, this case [*4] is akin to a party’s failure to object when a trial court proceeds after the imposition of certain bankruptcy stays. The supreme court has held that such failure waives error. Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 923 (Tex. 2011); see also Escalante v. Rowan, 251 S.W.3d 720, 724-25 (Tex. App.—Houston [14th Dist.] 2008) (“[T]he failure to object based on this stay waives any error that the trial court may have committed by failing to stay the proceedings during the pendency of the interlocutory appeal.”), rev’d on other grounds, 332 S.W.3d 365 (Tex. 2011). In so concluding, the high court noted that such a stay “differs from a situation in which the relevant statute vests ‘exclusive jurisdiction’ in a particular forum.” Roccaforte, 341 S.W.3d at 923. Here, as discussed, in a forcible detainer action, the justice court is vested with jurisdiction only to determine the right to possession. Accordingly, these facts are distinguishable from the facts in Roccaforte.

We conclude that Leawood did not waive its right to object to the county court’s jurisdiction over Burton’s claims. We further conclude that the county court lacked subject matter jurisdiction and thus was required to dismiss Burton’s claims.” Burton v. Leawood Homeowners Ass’n, LLP, No. 14-17-00864-CV, 2019 Tex. App. LEXIS 2306, at *2-4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2019)

Rule 11 Agreement: “In his first issue, Father argues the trial court abused its discretion by entering judgment on a rule 11 agreement when there was no evidence Father consented to or gave his attorney [*4] authority to enter into it. The State responds Father failed to preserve his issue for review, or alternatively, nothing in the record rebutted the presumption that Father’s attorney had authority to sign the rule 11 agreement on his behalf. . . . In reaching this decision [that the statute’s requirements were not satisfied], we reject the State’s argument that Father waived his complaint by failing to object to the rule 11 agreement.” In the Interest of J.S., No. 05-18-01328-CV, 2019 Tex. App. LEXIS 2549, at *3-8 (Tex. App.—Dallas Mar. 29, 2019)

Here is an interesting one–in which a court of appeals held that it will address whether a cause of action should be dismissed under the TCPA, even though that cause of action was not addressed in either the motion to dismiss or the parties appellate briefs:


Texas Citizens’ Participation Act: “Although not addressed by the parties, we note that in addition to defamation, Fernandez alleged a claim for IIED. He also filed a supplemental pleading in which he added a claim for conspiracy. Appellants’ TCPA motion to dismiss did not address [*51] either claim, nor does their brief on appeal.

Our court has explained that HN30 simply because one claim may require dismissal under the TCPA, it does not ipso facto require that dismissal be granted on other claims not specifically addressed in the motion to dismiss. Cf. Ghrist, 2018 Tex. App. LEXIS 4578, 2018 WL 3060331, at *5 n.9 (“Each cause of action stands or falls on its own merit; there is no bootstrapping effect for other causes of action that do not meet the criteria set forth in the [TCPA] statute”). Indeed, neither the TCPA nor cases interpreting it require that we perform a search of the record to find clear and specific evidence of each element of the plaintiff’s claims. See Cavin, 545 S.W.3d at 72 (dismissing claims when the plaintiffs “have merely recited what they view as the essential elements of each claim; cited en masse to pages of the record they deem relevant to some unspecified element or elements of that claim; but provided no argument, analysis, or explanation as to which record reference supports which elements or (perhaps more critically) why that evidence would satisfy the specific element under the governing law”).

Yet we recognize that in Adams, the Supreme Court of Texas recently reversed an appellate court decision affirming the denial of [*52] a TCPA motion to dismiss based in part on a party’s failure to preserve an argument by failing to specifically raise it in the motion to dismiss. 547 S.W.3d at 896. The Adams court admonished that the appellate court “imposed too strict a view of error preservation in this context” and buttressed its position with reference to the TCPA’s directive that its applicability is to be “based on a holistic review of the pleadings.” Id. at 896-97. As the Adams court explained, once the defendant alleged in his motion that he was entitled to dismissal of the plaintiff’s defamation claim because it was based on his right of free speech, “[h]e was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.” Id. at 896.

With these decisions in mind, we consider whether Fernandez’s conspiracy and IIED claims—although not addressed in Appellants’ motion to dismiss or the parties’ briefs—require dismissal under the TCPA.” Weber v. Fernandez, No. 02-18-00275-CV, 2019 Tex. App. LEXIS 2487, at *50-52 (Tex. App.—Fort Worth Mar. 28, 2019)

Here is another interesting one–as to what oral statements from a trial court amount to a ruling denying a request for appointed counsel:


Attorney (appointed): “In so holding, we also reject the State’s argument that Father waived any error by failing to obtain a ruling on his request for appointed counsel. See Tex. R. App. P. 33.1. The trial court’s response of “Have a seat. You represent yourself,” can be reasonably interpreted as a denial of Father’s request for counsel, thereby preserving error.” In the Interest of M.H., No. 02-18-00329-CV, 2019 Tex. App. LEXIS 2231, at *6 n.2 (Tex. App.—Fort Worth Mar. 21, 2019)

And the final of the interesting triumvirate, here is one that says that just because you did not object to a jury question which allowed the jury to find reasonable fees “if any,” you have not waived your objection to a jury finding of -0- attorney’s fees:


Attorney’s Fees: “In its first issue, the State contends that the jury lacked discretion, as a matter of law, to find that the State did not incur any reasonable and necessary attorney’s fees because the State, as the prevailing party, was entitled to its fees under section 2107.006 of the Government Code. See id. The State contends that an award of attorney’s fees is mandatory under this section.

Buchanan responds that the State failed to preserve this complaint because it did not object to submission of the jury question on the issue of attorney’s fees, which read: “What is a reasonable fee, if any, for the necessary services of the State’s attorney, stated in dollars and cents?” (Emphasis added.) Specifically, Buchanan contends that the question’s use of the conditioning language “if any” afforded the jury discretion to refuse to award any attorney’s fees and instructed the jury that a fee award was not mandatory; therefore, [*5] he continues, the State cannot complain about the question on appeal because it did not object to the possibility—raised by the question as submitted—that the jury could find that no attorney’s fees were reasonable and necessary. We conclude that the State did not waive its contention that an attorney’s-fees award is mandatory under section 2107.006.

The availability of attorney’s fees under a particular statute is a question of law for the court and, therefore, a “jury’s finding about the amount of reasonable attorney’s fees is immaterial to the ultimate legal issue of whether such fees are recoverable under [a particular statute.]” Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (holding that party did not waive its contention that attorney’s fees were not available under particular statute by failing to object to submission of jury question). “A jury can determine the amount of attorney’s fees whether or not they can be recovered under the theory of law submitted to the jury,” id., which is what occurred here. Furthermore, the State asserted its claim that an award of fees is mandatory in its motion to disregard and alternative motion for new trial, which gave the trial court ample opportunity to rule on the availability of fees before an erroneous [*6] judgment was rendered. Id.” State v. Buchanan, No. 03-18-00120-CV, 2019 Tex. App. LEXIS 2340, at *4-6 (Tex. App.—Austin Mar. 27, 2019)

You may preserve your legal sufficiency challenge by virtue of the trial court granting the other side’s motion for judgment notwithstanding the verdict:


Legal sufficiency: “We begin our analysis by addressing appellees’ argument that Hosseini did not preserve her legal sufficiency complaint because she failed to object to the trial court’s final judgment. We disagree. HN3 The granting or denial of a judgment notwithstanding the verdict preserves error regarding the legal sufficiency of the evidence. See, e.g., Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). Hosseini’s legal sufficiency challenge is, therefore, properly preserved.” Hosseini v. Hansen, No. 04-17-00790-CV, 2019 Tex. App. LEXIS 2159, at *7 (Tex. App.—San Antonio Mar. 20, 2019)

You have to raise your complaint in a timely fashion–such as getting a ruling on your motion to sever before the case is submitted to the jury (with right after voir dire being timely), and by objecting to testimony when it is offered, and not silently relying on a motion in limine:


Evidence: “Lawhorn argues that Trooper Germany’s testimony was also inadmissible as to causation. HN2 To preserve a complaint for appellate review, a party must both (1) make a timely request, objection, or motion stating the specific grounds, and (2) secure the court’s ruling on its request, objection, or motion, or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(1), (2). While Lawhorn filed a pre-trial motion to limit or exclude the testimony of Trooper Germany, the record does not reflect any adverse ruling as to the admissibility of Trooper Germany’s testimony nor any objection made during the testimony of Trooper Germany. Therefore, no complaint was preserved for our review. See id.” Lawhorn v. Hidinger, No. 13-16-00423-CV, 2019 Tex. App. LEXIS 2183, at *6 (Tex. App.—Corpus Christi Mar. 21, 2019)

Severance: “Holland argues that American National waived its motion to sever by not presenting it to the court for argument until after voir dire. We disagree.. . . . the Texas Supreme Court has interpreted Rule 41 to mean that “all ‘[p]arties and actions may be severed at any stage of the action, before the time of submission to the jury.’” Id. (emphasis added) (quoting State Dep’t of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993)); see Tex. R. Civ. P. 41. Thus, Rule 41 does not “permit a trial court to sever a case after it has been submitted to the trier of fact.” Cotner, 845 S.W.2d at 819 (emphasis added). A trial court abuses its discretion in ordering a severance after a jury verdict, “regardless of the [three]-pronged test [for] severability.” Arlitt, 1999 Tex. App. LEXIS 8912, 1999 WL 1097101, at *4. Therefore, because American National presented its argument to the court and obtained a ruling prior to the case’s submission to the jury, American National preserved its argument before this Court. See Tex. R. App. P. 33.1.” Am. Nat’l Cty. Mut. Ins. Co. v. Holland, No. 12-18-00141-CV, 2019 Tex. App. LEXIS 2171, at *7-8 (Tex. App.—Tyler Mar. 20, 2019)

Your complaint must be sufficiently specific:


Evidence: “Watts’s brief also challenges the testimony of another witness, Phillip Waldon. After Adviento called Waldon to the stand, but before he began testifying, Watts objected to the admission of any testimony from Waldon because any testimony from him would be prejudicial. But this objection was premature and was not specific and, thus, did not preserve error. See Holmes v. Concord Homes, Ltd., 115 S.W.3d 310, 316 (Tex. App.-Texarkana 2003, no pet.) (“[P]remature objections preserve nothing for review.”); Correa v. Gen. Motors Corp., 948 S.W.2d 515, 518 (Tex. App.-Corpus Christi-Edinburg 1997, no writ) (“[A] preliminary objection to an entire block of anticipated testimony is no substitute for specific objections to allegedly inappropriate matters as they are elicited.”). Additionally, while he was cross-examining Waldon, Watts at one point objected, stating: “I would like for the witness'[s] testimony to be impeached and just struck.” But this objection was insufficiently specific to preserve error. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Campbell v. State, 85 S.W.3d 176, 185 (Tex. 2002) (noting that a specific objection is one that enables the trial court to understand the precise grounds so as to make an informed ruling and that affords the offering party an opportunity to remedy any defect, if possible).” Watts v. Adviento, No. 02-17-00424-CV, 2019 Tex. App. LEXIS 2478, at *18-19 (Tex. App.-Fort Worth Mar. 28, 2019)

The record has to reflect you preserved your complaint:


Evidence: “Underscoring the need for citations to the record, Baish asserts that the trial court improperly excluded evidence. But without record references, Baish has not shown where, how, or even if he preserved his complaints for appellate review. See Tex. R. App. P. 33.1. In her appellee’s brief, Allen attacked Baish’s failure to preserve error. HN7 It is axiomatic that this court cannot consider complaints on appeal that have not been preserved for our review. See Thiessen, 2018 Tex. App. LEXIS 9338, 2018 WL 5993316, at *1, 3; see also Tex. R. App. P. 33.1(a).” Baish v. Allen, No. 02-17-00146-CV, 2019 Tex. App. LEXIS 2229, at *6 (Tex. App.—Fort Worth Mar. 21, 2019)

You have to comply with other pertinent rules:


Emergency: “In the alternative, the City argues that at the time of the accident, Camacho was reacting to another emergency situation—”Obeid’s instructions to change destination while the ambulance was already en route to the hospital on the tollway.” We decline to address the City’s alternative argument because it was not raised below. See Tex. R. App. P. 33.1; 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.”).” City of Hous. v. Hussein, No. 01-18-00683-CV, 2019 Tex. App. LEXIS 2138, at *20 n.4 (Tex. App.—Houston Mar. 19, 2019)

Venue: “We further note that even if we had jurisdiction over Santellana’s and Gulf-Tex’s forum and venue issues, the record does not reflect that either party obtained a ruling on any such motions or objected to the trial court’s failure to rule. Therefore, Santellana and Gulf-Tex have failed to preserve error on this issue. Vela v. Manning, 314 S.W.3d 693, 693-94 (Tex. App.—Dallas 2010, pet. denied). Furthermore, both parties waived their objections to improper venue by failing to file a timely motion to transfer venue. TEX. R. CIV. P. 86(1) (“An objection to improper venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a.”).” Cliff Santellana & Gulf-Tex Roofing & Servs. v. Centimark Corp., No. 01-18-00632-CV, 2019 Tex. App. LEXIS 2612, at *5 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019)

You have to get a ruling on your complaint:


Associate Judge: “Although appellate courts generally do not consider docket entries, “docket entries may be used by appellate courts to determine what transpired in the trial court.” Haut v. Green Cafe Mgmt., Inc., 376 S.W.3d 171, 179 (Tex. App.-Houston [14th Dist.] 2012, no pet.); Buffalo Bag Co. v. Joachim, 704 S.W.2d 482, 484 (Tex. App.-Houston [14th Dist.] 1986, writ ref’d n.r.e.) (observing that the docket entries confirmed that the appellant had filed a motion for new trial with the trial court). The docket confirms that a “Notice of Assignment” of an associate judge was sent on July 27, 2017. However, the docket does not mention any objections relating to the appointment of an associate judge. Jordan has not demonstrated that he filed and presented his objections to the appointment of an associate judge. See Buffalo Bag, 704 S.W.2d at 484. Therefore, Jordan has failed to preserve this issue for appeal. See Tex. R. App. P. 33.1; In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (concluding that even constitutional errors [*8] must be preserved by raising timely objections to the trial court); Flores v. Banner, 932 S.W.2d 500, 502 (Tex. 1996) (acknowledging that an objection to the assignment of a judge can be waived if not properly presented and ruled upon); Sweetwater Austin Properties, L.L.C. v. SOS All., Inc., 299 S.W.3d 879, 891 (Tex. App.-Austin 2009, pet. denied) (same). We overrule Jordan’s second issue.” Jordan v. Menchaca, No. 13-18-00143-CV, 2019 Tex. App. LEXIS 2399, at *7-8 (Tex. App.-Corpus Christi Mar. 28, 2019)

Res Judicata: “Banks’s first issue—complaining that this action is barred by res judicata—is waived. Res judicata is an affirmative defense that prevents the re-litigation of a claim or cause of action that has been finally adjudicated in a prior lawsuit. Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Here, although Banks sought to elicit testimony about Ramin’s prior lawsuit, Banks did not specifically urge the county court to rule on his motion to dismiss or object to a refusal to rule, as was required to preserve the issue for our review. Tex. R. App. P. 33.1(a)(2);” Banks v. Ramin Equities, LLC, No. 01-18-00401-CV, 2019 Tex. App. LEXIS 2134, at *7 (Tex. App.—Houston [1st Dist] Mar. 19, 2019)

All for now.  I hope this helps.


Steve Hayes


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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