August 15, 2020
Dear All:
We continue our steady march toward the end of the courts’ fiscal year, and they continue to churn out opinions. Most of this week’s error preservation decisions involved parties failing to raise their complaints in the trial court, but a few decisions did have interesting aspects to them:
Table of Contents
You must make your complaint in a timely fashion
Evidence
Sometimes, one can claim the trial court impliedly ruled on one’s complaint–but beware that in doing so you may, like Blanche DuBois, have to rely on the kindness of strangers concerning the error preservation decision
Continuance
A motion for new trial preserves a sufficiency challenge (make sure you get it in the appellate record, even if by supplement)
Legal Sufficiency
In no-evidence summary judgment practice, if you do not respond to the no-evidence motion, the only thing you can challenge on appeal is the sufficiency of the motion
Summary Judgment
The Blurbs
You must make your complaint in a timely fashion:
Evidence: “To the extent Mother complains about the admission of the caseworker’s summary of the statements made by Mother in her letters to G.B., this complaint was not preserved for appellate review. In order to preserve a complaint regarding the admission of evidence, Mother was required to make a timely objection. See Tex. R. Evid. 103(a)(1)(A); Tex. R. App. P. 33.1(a)(1). An objection made after the testimony has been elicited is untimely and does not preserve the complaint for appellate review. See In re O.M.H., No. 06-12-00013-CV, 2012 Tex. App. LEXIS 5449, 2012 WL 2783502, at *2 (Tex. App.—Texarkana July 10, 2012, no pet.) (mem. op.); Moon v. Spring Creek Apartments, 11 S.W.3d 427, 432 (Tex. App.—Texarkana 2000, no pet.). Mother did not object to the caseworker’s testimony summarizing the statements made by Mother in her letters to G.B. until after she had completed this testimony and the ad litem had asked another question. Consequently, Mother’s objection was untimely, and any complaint regarding that testimony was not preserved. See Moon, 11 S.W.3d at 432.” In the Interest of G.B., No. 06-20-00031-CV, 2020 Tex. App. LEXIS 6309, at *7 (Tex. App.—Texarkana Aug. 11, 2020)
Sometimes, one can claim the trial court impliedly ruled on one’s complaint–but beware that in doing so, you may, like Blanche DuBois, have to rely on the kindness of strangers concerning the error preservation decision:
Continuance: “The district court’s December 11, 2018 order granting a partial summary judgment in favor of Byrd does not reference the motion for continuance. EM Building asserts that the court implicitly denied the motion for continuance by ruling on the motion for summary judgment. See Tex. R. App. P. 33.1(a)(2)(A) (“As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the trial court . . . ruled on the request, objection, or motion, either expressly or implicitly.” (emphasis added)). Its first issue contends that the court abused its discretion in denying this request. See Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 696 (Tex. App.—Dallas 2008, no pet.) (“We review a trial court’s decision whether [*10] to grant a party additional time for discovery before a summary judgment hearing for an abuse of discretion.”).
Byrd responds that EM Building did not obtain a setting or a ruling on its motion for continuance, and, therefore, it failed to preserve its complaint that the district court erred by not granting the motion. As support, Byrd cites cases from this Court that held an appellant, by not obtaining a ruling on its motion to continue a summary judgment hearing, waived its complaint regarding the court’s refusal to grant the motion. For example, in Gonerway v. Corr. Corp. of America, the record did not show that the appellant called her motion for continuance to the attention of the trial court, nor was there anything in the record to show the appellant objected to the court’s purported refusal to grant her motion. 442 S.W.3d 443, 445-46 (Tex. App.—Dallas 2013, no pet.); accord Hightower v. Baylor Univ. Med. Ctr., 251 S.W.3d 218, 224-25 (Tex. App.—Dallas 2008, pet. struck). However, in Restaurant Teams International, Inc. v. MG Sec. Corp., this Court held that the trial court implicitly denied the appellants’ motion for continuance when it proceeded with the hearing on the appellees’ motion for summary judgment and then granted that motion. 95 S.W.3d 336, 338 (Tex. App.—Dallas 2002, no pet.); see also In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (concluding error preserved by implicit ruling on request for bench warrant [*11] where court proceeded to trial without issuing the warrant); Favour Leasing, LLC v. Mulligan, No. 05-13-01000—CV, 2014 Tex. App. LEXIS 9180, 2014 WL 4090130, at *10 (Tex. App.—Dallas Aug. 19, 2014, no pet.) (mem. op.) (“[A]lthough the record does not reflect the trial court explicitly ruled on [cross-appellant’s] motion for continuance, the trial court implicitly denied the motion when it proceeded with the special appearance hearing and denied the special appearance.”); cf. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam) (noting that a ruling may be implied if the implication is “‘clear.'” (quoting In re Z.L.T., 124 S.W.3d at 165)).
Based on the record before us, we conclude that the district court’s grant of Byrd’s summary-judgment motion clearly implied that the court had denied EM Building’s request for a continuance. This implicit denial preserved for our review EM Building’s complaint regarding the denial.” EM Bldg. Contractors Servs., LLC v. Byrd Bldg. Servs., LLC, No. 05-19-00153-CV, 2020 Tex. App. LEXIS 6342, at *9 (Tex. App.—Dallas Aug. 11, 2020)
A motion for new trial preserves a sufficiency challenge (make sure you get it in the appellate record, even if by supplement):
Legal Sufficiency: “The Department asserts that Mother has waived her sufficiency challenges on appeal because she failed to preserve them below. A supplemental clerk’s record filed on July 21, 2020, however, reveals that Mother filed a motion for new trial challenging the legal and factual sufficiency of the findings on March 18, 2020. See In re A.P., No. 05-19-01536-CV, 2020 Tex. App. LEXIS 4321, 2020 WL 3071708, at *5 (Tex. App.—Dallas June 10, 2020, no pet. h.) (mem. op.) (sufficiency challenges can be preserved by timely motion for new trial).” In the Interest of E.S., No. 05-20-00311-CV, 2020 Tex. App. LEXIS 6411, at *3 n.7 (Tex. App.—Dallas Aug. 12, 2020)
In no-evidence summary judgment practice, if you do not respond to the no-evidence motion, the only thing you can challenge on appeal is the sufficiency of the motion:
Summary Judgment: “Moreover, by failing to file a response to Link’s summary judgment motion, Hawes did not present any argument or evidence to the trial court to refute Link’s no-evidence summary judgment motion. Generally, the record must show that a complaint was made to the trial court by a timely request, objection, or motion before the complaint will be considered on appeal. TEX. R. APP. P. 33.1(a)(1)(A); USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 510 (Tex. 2018). Because Hawes failed to respond to Link’s no-evidence grounds, he is restricted on appeal to challenging the sufficiency of the summary judgment motion. Viasana, 296 S.W.3d at 655.” Hawes v. Link Ministries, Inc., No. 07-18-00407-CV, 2020 Tex. App. LEXIS 6465, at *35 (Tex. App.—Amarillo Aug. 13, 2020)
Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com