Error Preservation in Texas Civil Cases, August 10, 2019

Dear All:

Here are some of the error preservation decisions from the last few days.

Table of Contents


The Blurbs

This case involved an extensive discussion of when including an instruction in a charge caused such egregious harm that it amounted to fundamental error that a complaint about it could first be raised on appeal:


Jury Charge (Juvenile): “The Texas Rules of Civil Procedure generally govern the jury charge in juvenile proceedings. Tex. Fam. Code Ann. § 56.01(b); see In re L.D.C., 400 S.W.3d 572, 574 (Tex. 2013). But a juvenile proceeding is quasi-criminal; thus, criminal law precedent may be instructive in juvenile cases. See In re C.O.S., 988 S.W.2d 760, 765-67 (Tex. 1999). In criminal cases, jury-charge error is reviewed using a two-step process. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). First, the court determines whether error exists in the charge. Id. If there is error, we determine if the appellant has been harmed: “The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection.” Id. If an appellant has preserved the error by objection, we must reverse if we find “some harm” to his rights. See id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). But where there is no objection, we will not reverse for jury-charge error unless the record shows “egregious harm” to the appellant. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to preserve jury-charge error is not a bar to appellate review, but rather it establishes the degree of harm necessary for reversal.”).

M.S. did not object to the legal-duty law of parties instruction in the jury charge. When the charge error is not preserved “and the accused must claim that [*6] the error was ‘fundamental,’ [she] will obtain a reversal only if the error is so egregious and created such harm that [she] ‘has not had a fair and impartial trial’—in short ‘egregious harm.’” . . . Although there is evidence in the record that supports a conviction under the aiding section of the law of parties, it is equally likely the jury may have convicted M.S. under the legal-duty theory and exposed appellant to conviction under an invalid theory. The charge erroneously allowed the jury to convict M.S. of capital murder and aggravated robbery under an improper legal-duty theory. We hold that this charge error was egregiously harmful because it affected the very basis of the case and deprived M.S. of a valuable right to be tried and convicted under a correct theory.” In re M.S., No. 02-18-00099-CV, 2019 Tex. App. LEXIS 6980, at *5-6 (Tex. App.—Fort Worth Aug. 8, 2019)

Just putting a footnote in a pleading about reserving a right to complain about something does not preserve that complaint:


Capacity: “Superior initially argues that Badawo lacks standing [*4] to sue as D.B.’s next friend because she has legally adopted him. See In re Bridgestone Ams. Tire Operations, LLC, 459 S.W.3d 565, 572 & n.9 (Tex. 2015) (orig. proceeding) (holding minors cannot sue by next friend if a parent has legal authority to represent them in court). Superior characterizes this as a challenge to Badawo’s standing, but it actually concerns her capacity. . . . And unlike standing, “a challenge to capacity may be waived.” In re Bridgestone, 459 S.W.3d at 573. Preservation of error requires a party to make a “timely request, objection, or motion” and either obtain a ruling or object to the trial court’s [*5] refusal to rule. Tex. R. App. P. 33.1(a). Superior included a footnote in its answer stating that it “reserves its right to contest Linda Badawo’s standing to seek legal relief on behalf of this minor.” Dr. Glomb included substantively the same statement in his answer, but neither actually argued to the district court that she lacked capacity or requested a ruling on that issue. We therefore conclude Superior has not preserved this issue for review.” Superior HealthPlan, Inc. v. Badawo, No. 03-18-00691-CV, 2019 Tex. App. LEXIS 6835, at *3-5 (Tex. App.—Austin Aug. 8, 2019)

You have to get a ruling on your complaint:


Discovery: “We also have not addressed the argument raised in appellees’ brief that we can affirm the trial court’s ruling because appellants failed to address a potential ground on which the trial court could have denied their motions to dismiss. In response to the motions, appellees argued a TCPA dismissal in this case would violate the open courts and due course guarantees of the Texas Constitution because appellants violated a rule 11 agreement by producing heavily redacted documents without asserting claims of privilege and, with respect to AVAD, failing to search for backups of deleted emails. The clerk’s record, however, does not contain a motion to compel filed by appellees. The docket sheet shows a motion to compel was filed on August 3, 2018, but also indicates a hearing on the motion was taken off the docket for lack of a proper three-day notice. Because appellees did not obtain a ruling on a motion to compel in the trial court, it waived its argument that the discovery violations were an independent ground on which the trial court could have denied appellants’ motions to dismiss. See Tex. R. App. P. 33.1(a)(1)” Pearl Energy Inv. Mgmt., LLC v. Gravitas Res. Corp., No. 05-18-01012-CV, 2019 Tex. App. LEXIS 6833, at *19 n.6 (Tex. App.—Dallas Aug. 7, 2019)

Experts: “The Davises objected to Dr. Almaguer’s affidavit in the trial court because Dr. Almaguer “is not qualified to opine on causation, his methodology is not reliable, and his opinions are conclusory and unsupported.” The Davises make the same arguments on appeal; however, the record does not contain a ruling on their objection. A “trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being understood’ from the ruling on the motion for summary judgment.” Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 165-66 (Tex. 2018) (quoting Well Sols. Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.—San Antonio 2000, no pet.)). Here, the Davises never obtained a ruling on their objection to Dr. Almaguer’s affidavit, and they never objected to the trial court’s failure to rule. See Tex. R. App. P. 33.1(a)(2); Seim, 551 S.W.3d at 165-66.” Alvarez v. Salazar-Davis, No. 13-18-00366-CV, 2019 Tex. App. LEXIS 6843, at *16 n.6 (Tex. App.—Corpus Christi Aug. 8, 2019)

Experts: “Counsel for D.L.E.B. never objected to the admissibility of Jefferies’s testimony at the hearing on the motion for a finding of aggravated circumstances or at trial. Counsel also failed to file a motion to exclude Jefferies’s testimony on any ground, including that it was speculative and unreliable, and did not request a Daubert/Robinson-type hearing. The trial court was never asked to make a ruling on whether Jefferies’s expert testimony was admissible under Rule 702 of the Texas Rules of Evidence. See Tex. R. Evid. 702. D.L.E.B.’s request for a Rule 705(b) hearing [to allow counsel to cross-examine the expert about the underlying facts and data on which the expert’s opinion is based] does not preserve a complaint about the admissibility of Jefferies’s testimony. . . . Although counsel for D.L.E.B. requested an opportunity to examine Jefferies’s “qualifications,” he did not object to the admission of Jefferies’s testimony then or at trial. In fact, counsel expressly stated: “And I’m not challenging him at this point.” We conclude that D.L.E.B. failed to preserve a complaint that Jefferies’s expert testimony [*15] was inadmissible.” D. L. E. B. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00186-CV, 2019 Tex. App. LEXIS 6834, at *13-15 (Tex. App.—Austin Aug. 8, 2019)

Several cases also dealt with situations in which parties failed to preserve error by failing to raise their complaint at all in the trial court.

All for now.  I hope this helps.

Yours, 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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