Error Preservation in Texas Civil Cases, August 2, 2019

Dear All:

I apologize for the long hiatus in publishing this. I got busy with work and traveling to speak, and got way behind. I’m now pretty much bushed from gathering the last several weeks worth of error preservation decisions, so the compilation below is not edited as well as I normally do.

Table of Contents


The Blurbs

Cases you may want to read in terms of a party preserving a complaint about failure to receive appropriate notice of a trial setting:


Notice: “In this case, Taplin did appear at the trial. However, he never stated that he was ready to proceed. On the contrary, [*15] he repeatedly, both orally and in writing, asked for a continuance. Based on the record before us, we hold that error was preserved because Taplin, in addition to requesting a continuance, never “voluntarily, knowingly, and intelligently” waived proper notice under Rule 245. In re K.M.L., 443 S.W.3d at 120. Therefore, the trial court abused its discretion in denying the motion for continuance.” $2,424.21 in United States Currency v. State, No. 02-18-00303-CV, 2019 Tex. App. LEXIS 6188, at *14-15 (Tex. App.—Fort Worth July 18, 2019)

Notice: “Generally, a complaint for appellate review must be preserved by specific objection or motion in the trial court to allow the trial court an opportunity to correct the error. See Tex. R. App. P. 33.1. However, a party who complains of inadequate notice of a hearing and does not appear at the hearing may raise the complaint for the first time following the hearing. In re B.T.G., No. 05-17-00521-CV, 2017 Tex. App. LEXIS 4911, 2017 WL 2334243 at *1 (Tex. App.-Dallas 2017, no pet.) (mem. op.).

Appellants argue they did not receive adequate notice of the hearing. A review of the record reveals appellants are correct. The court reporter filed her contest on June 5, 2019. The same day, she mailed a copy of the contest to appellants [*3] by certified mail along with a notice of hearing, which set the contest for hearing on June 11, 2019. Thus, appellants were provided with at most six days’ notice of the hearing. The ten day notice period is mandatory and appellants did not receive sufficient notice. Tex. R. Civ. P. 145(f)(5) (“declarant must be given ten days’ notice of the hearing”). Accordingly, we conclude the trial court abused its discretion in granting the court reporter’s motion challenging appellants’ affidavits of indigence.” Townley v. Lanier, No. 14-19-00447-CV, 2019 Tex. App. LEXIS 5691, at *2-3 (Tex. App.-Houston [14th Dist.] July 9, 2019)

Your complaint must be sufficiently specific to make the trial court aware of it–with examples which did and didn’t, from the same case:


Evidence: “X.D. argues that the photo array was impermissibly suggestive because (1) it was administered by a school official instead of by law enforcement personnel, and (2) two of the seven photos in the array were of other “possible suspects.” We first address the State’s argument that X.D. forfeited this issue because it does not comport with his counsel’s trial objection. To preserve error for appellate review, the Texas Rules of Appellate Procedure require that the record show that the objection “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A). If the issue on appeal does not comport with the objection made at trial, the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012)….X.D.’s counsel objected [to the photo array] as follows: ‘I’m going to object, Your Honor. They’re improper photo lineups. They weren’t done correctly. They’re not supposed to have seven people. You’re not supposed to have multiple people in the same lineup. So I’m going to object to anything as far as the photo lineup goes.’ …Nothing in X.D.’s counsel’s trial objection put the court or the State on notice of his complaint that the photo array evidence was administered by a school official instead of law enforcement. We therefore hold that X.D. forfeited this argument for appellate review.” In re X.D., No. 01-18-00590-CV, 2019 Tex. App. LEXIS 6399, at *20-22 (Tex. App.—Houston [1st Dist.] July 25, 2019)

Evidence: “But X.D. did not forfeit his argument that the inclusion of photos of J.M. and A.G. rendered the photo array impermissibly suggestive. Here, given Officer Provencio’s testimony just before the State offered the photo array evidence, it is clear that “[y]ou’re not supposed to have multiple people in the same lineup” was an objection that the inclusion of J.M. and A.G. in the photo array made it impermissibly suggestive. .” In re X.D., No. 01-18-00590-CV, 2019 Tex. App. LEXIS 6399, at *20-22 (Tex. App.—Houston [1st Dist.] July 25, 2019)

You must bring your complaint to the trial court’s attention:


Attorneys’ Fees: “In her fifth issue, Purvis contends that the trial court erred when it failed to compel payment of attorney’s fees previously awarded to her pursuant to Texas Rule of Civil Procedure 91a. We have not located where in the record Purvis alerted the trial court to its failure to rule on her motion to compel payment of the fees awarded in the prior fee order. Nor did Purvis request that the trial court offset, or object to the trial court’s failure to account for, such award in its final judgment. Purvis did not preserve her fifth issue. See Tex. R. App. P. 33.1(a).” Watson v. Purvis, No. 14-18-00132-CV, 2019 Tex. App. LEXIS 5692, at *21 (Tex. App.-Houston [14th Dist.] July 9, 2019)

Continuance: “As a prerequisite to complaining on appeal about the denial of a motion for continuance, the record must show that the motion was brought to the trial court’s attention and that (1) the trial court denied the motion or (2) the trial court refused to rule on the motion and the complaining party objected to the refusal. Bryant v. Jeter, 341 S.W.3d 447, 450-51 (Tex. App.-Dallas 2011, no pet.) (plaintiff filed motion for continuance three days before hearing on motion for summary judgment and filed response on day of hearing; failure to obtain ruling on motion for continuance failed to preserve error); see Tex. R. App. P. 33.1; Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 626 (Tex. App.-Dallas 2004, pet. denied) (“[Plaintiffs] failed to obtain a ruling from the trial court on the motion for continuance and therefore, failed to preserve error.”). In this case, the record does not show that Hartsfield’s motion for continuance was brought to the trial court’s attention. Likewise, the record does not show that the trial court either denied the motion or refused to rule on the motion. And to the extent that the trial court refused to rule [*5] on the motion, the record does not show that Hartsfield objected to that refusal. As a result, we conclude that this issue has not been preserved for appellate review.” Hartsfield v. Bank of Am., No. 05-17-01354-CV, 2019 Tex. App. LEXIS 5716, at *4-5 (Tex. App.-Dallas July 9, 2019)

Default Judgment: “In her fourth issue, Roux complains that the trial court should have entered a default judgment in her favor as to her application for attorney’s fees because Ford failed to file an answer in response to her application. We disagree. Roux did not move for entry of judgment on her application for attorney’s fees, nor did she file a mandamus in this Court complaining about the trial court’s failure to enter a default judgment. See In re Mesa Petroleum Partners, LP, 538 S.W.3d 153, 157 (Tex. App.—El Paso 2017, orig. proceeding) (“Consequently, mandamus relief is available if a trial court has failed to enter judgment within a reasonable time.”). HN3 The failure to move for judgment or call the [*9] motion for judgment to the attention of the trial court waives the issue. See Tex-Wash Enters., Inc. v. Robna, Inc., 488 S.W.2d 504, 505 (Tex. Civ. App.—Waco 1972, writ ref’d n.r.e.) (“The record fails to show that appellants’ motion for judgment was ever called to the attention of the trial court or acted upon by it. In this state of the record, nothing relating to the motion is presented for review.”). We therefore conclude that Roux waived this complaint by failing to move for default judgment on her application for attorney’s fees. We overrule Roux’s fourth issue.” Estate of Pharris, No. 10-17-00260-CV, 2019 Tex. App. LEXIS 5623, at *8-9 (Tex. App.—Waco July 3, 2019)

You have to get a ruling on your complaint:


Attorney ad Litem: “Chico’s third and final issue challenges the trial court’s denial of Chico’s motion for the appointment of an ad litem attorney for Mary. But we need not reach this issue either. Because Chico directs [*11] us to no apparent final adverse ruling or refusal to rule in this record, the complaint is not preserved. See Tex. R. App. P. 33.1(a)(2).” Chico Auto Parts & Serv. v. Maxey, No. 02-18-00352-CV, 2019 Tex. App. LEXIS 5609, at *10-11 (Tex. App.—Fort Worth July 3, 2019)

Motions: “To the extent that Florence challenged other interlocutory rulings of the trial court, such as its refusal [*6] to rule on certain motions, those appellate issues are waived. See Tex. R. App. P. 33.1 (appellant must show that trial court ruled or refused to rule on a motion); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) (pro se litigants are held to the same standards as licensed attorneys); see also Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to the authorities and to the record.”).” J.M.G., No. 01-17-00690-CV, 2019 Tex. App. LEXIS 5918, at *5-6 (Tex. App.—Houston [1st Dist.] July 11, 2019)

Your complaint on appeal must comport with the complaint you made in the trial court:


Continuance: “In her first issue, Mendez argues the trial court abused its discretion by denying her motion for continuance based on Rule 601 of the Texas Rules of Evidence. In her motion for continuance, Mendez did not cite to Rule 601 or claim she was incompetent to testify. Instead, Mendez “move[d] [*6] that the trial on the merits be continued in order to allow her a full recovery.” Mendez argued that “having a trial to finalize the pending divorce is and will be detrimental to her, her case[,] and not in the best interest of the child.” As a prerequisite to presenting a complaint for appellate review, the record must show that the appellant complained to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1). Additionally, an appellant’s complaint on appeal must comport with the complaint she made in the trial court. Texas Farmers Ins. Co. v. Clack, No. 04-17-00348-CV, 2018 Tex. App. LEXIS 3068, 2018 WL 2024664, at *4 (Tex. App.—San Antonio May 2, 2018, pet. denied). Because the complaint Mendez presents on appeal differs from the complaint she made in her motion for continuance, she has not preserved this issue for review on appeal. See id.; Tex. R. App. P. 33.1(a)(1). Mendez further argues in this section of her brief that the trial court abused its discretion by denying her motion for new trial. However, Mendez’s motion for new trial did not present a complaint about Rule 601(a)(1) or her competence to testify. Therefore, Mendez’s complaint about [*7] the denial of the motion for new trial is not preserved for our review. See Tex. R. App. P. 33.1(a)(1).” Mendez v. Delgado, No. 04-18-00454-CV, 2019 Tex. App. LEXIS 6053, at *5-7 (Tex. App.—San Antonio July 17, 2019)

You have to comply with the pertinent rules:


Affidavits: “Dees argues that the trial court should have given her the opportunity to amend her summary judgment affidavits in response to form objections. See Tex. R. Civ. P. 166a(f). However,”[w]hen a summary judgment movant objects to summary judgment evidence proffered by the nonmovant, the burden lies upon the nonmovant to request relief under rule 166a(f), including a continuance or the opportunity to cure any formal defects in the nonmovant’s summary judgment evidence.” Coleman v. Woolf, 129 S.W.3d 744, 750 (Tex. App.—Fort Worth 2004, no pet.). “Generally, a motion for continuance is the proper procedure to obtain this ‘opportunity.’” Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied) (citing Webster v. Allstate Ins. Co., 833 S.W.2d 747, 750 (Tex. App.—Houston [1st Dist.] 1992, no writ)). Here, after the Homeowners filed their objections, Dees had the opportunity to seek leave to amend or supplement her affidavits or, if necessary, to seek a continuance of the hearing. See Tex. R. Civ. P. 166a(f); Eckmann v. Des Rosiers, 940 S.W.2d 394, 400 (Tex. App.—Austin 1997, no writ). Dees failed to take either action before the trial court’s judgment, instead only moving for clarification after the final judgment and more than three months after the Homeowners’ objections, thereby [*9] waiving this issue for appeal. See Tex. R. App. P. 33.1.” Dees v. Thomas, No. 03-18-00372-CV, 2019 Tex. App. LEXIS 5560, at *8-9 (Tex. App.—Austin July 3, 2019)

Affirmative Defense (Limitations): “However, the record reflects that CitiFinancial never submitted issues to the jury or obtained a ruling in the trial court regarding when Hollenberg’s claims against CitiFinancial accrued. “Limitations is an affirmative defense and cannot be raised for the first time on appeal.” Naficy v. Baker, 642 S.W.2d 282, 284 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.); see Tex. R. App. P. 33.1(a).” Cfna Receivables Tx v. Hollenberg, No. 09-18-00260-CV, 2019 Tex. App. LEXIS 5910, at *14 (Tex. App.—Beaumont July 11, 2019)

Evidence: “There is no reporter’s record of the evidence presented in this case, and Sparkman did not file a formal bill of exception. See Tex. R. App. P. 33.1(c). Without a record of the evidence, we know little about the underlying basis for the court’s findings, and we are unable to determine whether the [*4] court abused its discretion in modifying the order for medical and child support. See Rogers, 2016 WL 3162299, at *5; D.D.A., 2006 WL 1547869, at *3. Because we must presume that the evidence presented at the hearing was sufficient to support the order, we hold that Sparkman did not meet his burden to show that the trial court abused its discretion.” Sparkman v. Ag of Tex., No. 01-18-00503-CV, 2019 Tex. App. LEXIS 5917, at *3-4 (Tex. App.—Houston [1st Dist.] July 11, 2019)

Factual Sufficiency: “In his second issue, De Leon challenges the factual sufficiency of the evidence to support the verdict and he argues that the findings on the three charge questions are against the great weight and preponderance of the evidence.  A “great weight” challenge to a jury finding presents an issue of factual sufficiency. Kratz v. Exxon Corp., 890 S.W.2d 899, 904 (Tex. App.—El Paso 1994, no writ). To preserve a complaint of factual insufficiency of the evidence to support a jury finding, a complaint that a finding is against the overwhelming weight of the evidence, or that a finding of damages was inadequate, a party must raise the issue in a timely filed motion for new trial. Tex. R. Civ. P. 324(b)(2)-(4) (stating appellant cannot challenge factual sufficiency [*8] of evidence without first raising point in motion for new trial); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991); Cannon v. Castillo, No. 11-12-00256-CV, 2014 Tex. App. LEXIS 8656, at *5 (Tex. App.—Eastland Aug. 7, 2014, no pet.) (mem. op.). The record in this case does not indicate that De Leon presented his factual sufficiency challenge in a motion for new trial. Although De Leon filed a motion for new trial, the sole complaint raised in that motion was that Hernandez failed to plead the negligence of De Leon as an affirmative defense. Because De Leon did not raise a factual sufficiency complaint in his motion for new trial, he has failed to preserve the issue for our review.” De Leon v. Hernandez, No. 07-18-00138-CV, 2019 Tex. App. LEXIS 5453, at *7-8 (Tex. App.—Amarillo June 27, 2019)

Findings and Conclusions: “By its first issue, AJS contends that the trial court erred by failing to list it as a party in its findings of fact and conclusions of law. However, HN1 a trial court need not make findings of fact on undisputed matters, and here, AJS did not dispute that it was involved in this cause. See Limbaugh v. Limbaugh, 71 S.W.3d 1, 5 (Tex. App.—Waco 2002, no pet.). Moreover, AJS did not request additional findings [*3] of fact; thus, any complaint to those findings is waived.” Air Jireh Serv. Corp. v. Weaver & Jacobs Constructors, Inc., No. 13-15-00180-CV, 2019 Tex. App. LEXIS 5797, at *2-3 (Tex. App.—Corpus Christi July 11, 2019)

Findings and Conclusions: “In its findings, the trial court recited that during their marriage, Ngwu and Toni acquired “[c]ash in financial accounts of minimal value, minimally valued retirement accounts, 2011 Chevrolet Suburban, 2013 Chevrolet Malibu, 2017 Dodge Caravan, 2017 Nissan Sentra, and minimally valued household items and personal belongings.” The trial court found Ngwu and Toni’s community estate was encumbered by the following: “[a]uto loan payable to SSFCU on Dodge Caravan, lien owed to LastPointe Automotive on 2011 Chevrolet Suburban, auto loan payable to Santander Consumer on 2017 Nissan [*7] Sentra, and other minimal debts of the parties.” The trial court specifically recited that it “took into consideration the following factors in making a determination of a just and right division: needs of the parties, needs of the children of the parties, periods of possession of the parties, parties’ contributions in the marriage.” Ngwu did not request additional or amended findings or conclusions. See, e.g., In re Estate of Hargrove, No. 04-18-00355-CV, 2019 Tex. App. LEXIS 1703, 2019 WL 1049293, at * 2 (Tex. App.—San Antonio Mar. 6, 2019, pet. filed.) (mem. op.); see also Tex. R. Civ. P. 298. For that reason, his complaint that section 6.711 of the Texas Family Code required the trial court to assign a monetary value to these items is not properly preserved. See Hargrove, 2019 Tex. App. LEXIS 1703, 2019 WL 1049293, at *2 (holding party’s complaint about adequacy of findings was waived when party never requested additional or amended findings); Tex. R. App. P. 33.1(a).” Ngwu v. Toni, No. 04-18-00762-CV, 2019 Tex. App. LEXIS 6281, at *6-7 (Tex. App.—San Antonio July 24, 2019)

Limitations: “To the extent that Ace asserts on appeal that Rush “wholly failed to plead or prove that he timely filed suit” and “limitations should . . . result in the dismissal of his case,” we note that statute of limitations is an affirmative defense which must be proven at trial or through a motion for summary judgment. See Tex. R. Civ. P. 94; In re D.K.M., 242 S.W.3d 863, 865 (Tex. App.—Austin 2007, no pet.); In re K.B.S., 172 S.W.3d 152, 153 (Tex. App.—Beaumont 2005, pet. denied); see also Chicas, 522 S.W.3d at 75 n.4 (“As an affirmative defense, th[e] limitations issue is properly left for resolution by way of a motion for summary judgment . . . .”). An affirmative defense that is not pleaded or proved and on which findings are not obtained is waived. See Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“A defendant relying on an affirmative defense [*16] must plead, prove, and secure findings to sustain the defense.”); see also Epps v. Fowler, 351 S.W.3d 862, 869 n.8 (Tex. 2011). Here, Ace only asserted its statute-of-limitations affirmative defense in its plea to the jurisdiction. See In re D.K.M., 242 S.W.3d at 865 (“[A]n affirmative defense such as the running of limitations should be raised through a motion for summary judgment, not through . . . a plea to the jurisdiction.”). Because Ace failed to plead, prove, and obtain findings on his statute-of-limitations affirmative defense, we hold that it has waived any complaint related to Rush’s purported failure to comply with the statute of limitations found in Texas Labor Code section 410.252(a).” Rush v. Ace Am. Ins. Co., No. 01-18-00402-CV, 2019 Tex. App. LEXIS 5709, at *15-16 (Tex. App.—Houston [1st Dist.] July 9, 2019)

Necessary Party: “Linda next contends that the trial court erred in granting Nationstar summary judgment because Nationstar failed to pursue claims against Ziad Allan, whom Linda characterizes as a necessary party. We conclude that this complaint has been waived. A party must object to the failure to join a necessary party by a pleading verified by affidavit. See Tex. R. Civ. P. 93(4) (“unless the truth of such matters appear of record,” a pleading setting up a “defect of parties” “shall be verified by affidavit”); CHCA E. Hous., L.P. v. Henderson, 99 S.W.3d 630, 633 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“Generally, a ‘defect of parties’ refers to joinder problems [*9] involving necessary or indispensable parties.” (citing Allison v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 703 S.W.2d 637, 638 (Tex. 1986) (per curiam))). Linda raised this complaint in her motion for new trial after the trial court granted summary judgment. Thus, the complaint is both untimely and unverified, and it accordingly is waived.” Allan v. Nationstar Mortg., LLC, No. 14-18-00246-CV, 2019 Tex. App. LEXIS 5686, at *8-9 (Tex. App.—Houston [14th Dist.] July 9, 2019)

There were a dozen or so cases in which parties failed to preserve their complaints because they did not raise the same in the trial court.

I hope this helps.  Y’all have a great weekend.

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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