Error Preservation in Texas Civil Cases, August 17, 2019

Hello, Buckaroos:

Here are some of the error preservation decisions from last week.

Table of Contents


The Blurbs

Your complaint must be timely–which, for a complaint about a visiting judge, means it cannot be made before his/her assignment, and within seven days thereafter:


Judge (visiting): “McCann claims that he preemptively objected to the judge in his original petition. His petition asserted his objection “to the referral of this case to any judge not elected to the district filed in.” This objection, however, was improper. See In re Carnera, 05-16-00055-CV, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2 (Tex. App.—Dallas Jan. 27, 2016, no pet.).  “A party does not possess the right to object to the assignment of a visiting [*7] judge before the assignment takes place.” Id. (citing Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 887 (Tex. App.—El Paso 1993, no writ)). “Section 74.053 clearly contemplates that assigned judge objections will be filed after the assignment of a judge to whom a party objects, not that parties can file pro forma blanket objections to assigned judges at the time they file their initial pleadings.” Id. Here, McCann filed his original petition and objection on April 30, 2018, but Judge Johnson was not appointed until May 3, 2018. Accordingly, the objection in his original petition did not preserve this issue. McCann later wrote a formal “Objection to Assigned Judge.” The certificate of service on this objection reflects the date of May 11, 2018, . . . . However, assuming but not deciding that McCann placed his objection in the prison mail system on May 11, 2018, as he claims, that date is eight days after the appointment of Judge Johnson on May 3, 2018. Because the deadline for filing objection to judges is seven days after the notice of appointment or the case’s [*9] first hearing, whichever is sooner, McCann missed the deadline. See Tex. Gov’t Code Ann. § 74.053. We conclude that McCann did not submit a timely objection to the assignment of Judge Johnson. See id. Judge Johnson thus had jurisdiction to hear the case. See id. We overrule McCann’s second issue.” McCann v. De Hoyos, No. 13-18-00528-CV, 2019 Tex. App. LEXIS 7143, at *6-9 (Tex. App.—Corpus Christi Aug. 15, 2019)

Pleading: “In its second issue, Zimmerman complains that the trial court abused its discretion by instructing Pastran to amend her pleadings to allege gross negligence against Zimmerman. The record, however, does [*17] not support Zimmerman’s characterization of what occurred. . . . Zimmerman agreed that Pastran was entitled to get information on the disputed issues if she pleaded gross negligence on the part of the employer. Zimmerman further agreed that Pastran could amend her pleadings [*18] and later, depending on what discovery revealed, amend again to drop the gross negligence claim. The court then addressed counsel for Pastran: “Okay. So why don’t you do that, Mr. Langford?” The record does not reflect that Pastran made any response, nor does it reflect that Zimmerman made any objection to the court’s question. Indeed, there was no further discussion of the subject and the hearing ended. Approximately ten days later, Pastran amended her petition to allege gross negligence against Zimmerman. To preserve error for appellate review, a party must make a timely request, objection, or motion stating the grounds with sufficient specificity to make the trial court aware of the complaint. Tex.R.App.P. 33.1. The record does not contain any such timely request, objection, or motion challenging the propriety of the trial court’s question to Pastran. Rather, the complaint was raised for the first time in Zimmerman’s motion for new trial, almost two years later. The issue is not preserved for review.”  Zimmerman Truck Lines v. Pastran, No. 08-17-00131-CV, 2019 Tex. App. LEXIS 7252, at *16-19 (Tex. App.—El Paso Aug. 16, 2019)

You have to comply with the pertinent rules:


Evidence: “”Further, in order to preserve error regarding any other alleged drug use by Erica, Brittney and Andre were each required to inform the trial court of the substance of the excluded evidence by an offer of proof, which neither of them did. See Tex. R. Evid. 103(a)(2). Because of this, we are unable to determine what additional evidence would have been offered and cannot determine whether the evidence would have been admissible or not. Brittney and Andre’s complaints were not properly preserved.” In the Interest of A.L.F., No. 10-19-00187-CV, 2019 Tex. App. LEXIS 7132, at *4 (Tex. App.—Waco Aug. 14, 2019)

You have to get a ruling on your complaint–and the granting of a summary judgment motion does not necessarily amount to such a ruling on a motion for leave to designate an expert:


Expert Designation: “We first address Hendryx’s sub-issue contending that the trial court erred in failing to rule on his motion for leave to designate Barnes as an expert witness. . . . In Seim, the trial court’s granting of the defendant’s [*9] summary judgment motion did not serve as an implicit ruling on the defendant’s objections to summary judgment evidence because “even without the objections, the trial court could have granted summary judgment against the [plaintiffs] if it found that their evidence did not generate a genuine issue of material fact.” Id. at 166. Similarly, the trial court’s granting of summary judgment in favor of appellees in this case did not necessarily imply that the trial court denied Hendryx’s motion for leave. Instead, even if the trial court believed the motion for leave was meritorious, it still could have granted summary judgment if it found Hendryx’s evidence did not generate a genuine issue of material fact. See id.; see also Tex. R. Civ. P. 166a(i). Therefore, to the extent this sub-issue asserts that the trial court implicitly denied Hendryx’s motion for leave, we disagree. Instead, we conclude that Hendryx has forfeited any merits-based review of his motion for leave because he never obtained a ruling thereon, and he 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. This sub-issue is overruled.” Hendryx v. Tucker, No. 13-18-00445-CV, 2019 Tex. App. LEXIS 7146, at *8-9 (Tex. App.—Corpus Christi Aug. 15, 2019)

Evidence: “Hamilton asserts that the letter from the attorney for BioUrja Trading, LLC and Hamilton Metals, LLC amounts to inadmissible hearsay. Hamilton waived the hearsay objection by failing to get a ruling from the trial court. . . . Hamilton asserts that the documents filed as part of Millman’s affidavit amount to inadmissible hearsay and that there was no authentication of these documents. Hamilton waived the hearsay objection by failing to secure a ruling on it from the trial court. . . .Hamilton asserts that the answer PNC Bank filed in the garnishment proceeding constitutes inadmissible hearsay. Hamilton failed to get a ruling on this objection and thus waived it.” Hamilton Metals, Inc. v. Glob. Metal Servs., No. 14-17-00670-CV, 2019 Tex. App. LEXIS 7050, at *19-21 (Tex. App.—Houston [14th Dist.] Aug. 13, 2019)

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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