August 2, 2021
Dear Friends:
Table of Contents
Here is a rare event-on rehearing, a court decided that it was previously wrong in holding that a party failed to preserve a complaint (in this instance, as to the failure of the trial court to hold an evidentiary trial on a claim for attorney’s fees)
Evidentiary Trial
Here is one where a Court held that a party preserved an evidentiary objection
You have to get a ruling on your objection
Evidence
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Capacity
Constitution
Court’s Conduct
Discrimination
Discrimination
Evidence
Evidence
Hearing
Hostile Work Environment
Jurisdiction (Existence)
Jury Charge
Personnel Action
Legal Sufficiency
Order
Trial (Time Limits)
Blurbs
If the other side’s motion actually deals with the trial court’s lack of jurisdiction, it doesn’t waive its complaint by failure to file a motion to transfer before filing its answer:
Jurisdiction: “First, appellants urge that appellee’s motion to transfer was untimely under Texas Rule of Civil Procedure 86, which states in relevant part: “[a]n 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.” Tex. R. Civ. P. 86. Here, appellee’s motion was filed after she filed her answer and motion for partial summary judgment. Appellants also argue that the county court’s order was “improper due to not following proper venue procedures,” specifically stating that a hearing was required before the case could be transferred and that appellants [*6] were entitled to forty-five days’ notice. See id. R. 87. Here, no hearing was held on the motion.
While appellants’ arguments challenge the merits of a motion to transfer venue, the motion before the county court was a jurisdictional motion. Appellee specifically asserted in her motion that the amount in controversy exceeded the jurisdictional limits of the county court as it was more than $200,000. See Brite, 215 S.W.3d at 401; see also TEX. GOV’T CODE ANN. §§ 25.0003(c), 25.1772. Appellants do not dispute this argument. Accordingly, because the amount in controversy was in excess of the statutory limit, the county court did not have subject matter jurisdiction over appellants’ claims against appellee.
The local rules applicable to Navarro County provide, in relevant part: “The judges of the District Court and the Navarro County Court at Law may transfer from one court to another having jurisdiction as long as an order is signed by the transferring court and approved by the transferee court.” Here, the county court signed an order transferring the case to the court of competent jurisdiction pursuant to the Texas Government Code and the Navarro County Local Rules. See Tex. Gov’T Code Ann. §§ 25.0003(c), 25.1772. Accordingly, the county court did not err in transferring the case to the trial [*7] court. We overrule appellants’ first issue.” Pabla v. Myers, No. 13-20-00292-CV, 2021 Tex. App. LEXIS 6047, at *5-7 (Tex. App.—Corpus Christi July 29, 2021)
Here is a rare event-on rehearing, a court decided that it was previously wrong in holding that a party failed to preserve a complaint (in this instance, as to the failure of the trial court to hold an evidentiary trial on a claim for attorney’s fees):
Evidentiary Trial: “On original submission, we concluded that Moody Jr. had not preserved error as to his challenge to the award of attorney’s fees because he did not obtain an explicit ruling on a request for an evidentiary trial on attorney’s fees. On rehearing, Moody Jr. argues that his appellate issue was preserved by an implicit ruling. He contends that his request was apparent from the record and context of proceedings and that the trial court’s judgment awarding attorney’s fees without a contested evidentiary hearing was an implicit denial of his request for a trial on attorney’s fees. We agree….In this case, Moody Jr. requested a trial on attorney’s fees no less than four times: (1) in response to the corporate defendants’ “application” for expenses and attorney’s fees; (2) at the hearing on the motion to vacate and application for expenses and attorney’s fees; (3) in briefing filed about a week after the hearing; and (4) in a written objection filed five days before the hearing set for entry of final judgment. Moody Jr. asserted that a summary proceeding was improper absent a motion for summary judgment and repeatedly asked for a bench trial and, later, a jury trial. He specifically argued that a trial was required to resolve questions of fact relating to the corporate defendants’ entitlement to attorney’s fees and the reasonableness of the fees to be awarded….The trial court did not expressly rule on Moody Jr.’s requests or objections, but it entered final judgment awarding attorney’s fees to the corporate defendants without holding an evidentiary hearing or a trial on the merits of the counterclaim for attorney’s fees. This implicitly overruled Moody Jr.’s objection and implicitly denied his requests.” Moody v. Nat’l W. Life Ins. Co., No. 01-18-01106-CV, 2021 Tex. App. LEXIS 5949, at *40-43 (Tex. App.—Houston [1st Dist.] July 27, 2021)
Here is one where a Court held that a party preserved an evidentiary objection:
Evidence: “At a hearing outside the presence of the jury, Tisdall’s counsel objected to the five independent medical examinations: “Under the rule, Texas Rule of Evidence 403, the balancing test, the probative value by saying that five physicians found him disabled is substantially outweighed by the danger of needless presentation of cumulative evidence and also prejudice.” In response, the trial court asked Tisdall’s counsel to elaborate on the prejudice part of the objection. Tisdall’s counsel then stated, “[I]t bolsters their opinion that he’s disabled. And all it is [is] piling—they don’t have a difference of opinion . . . . It’s just like I can’t go out and hire five or ten experts that support Dr. Tisdall. That is cumulative.” After considering Tisdall’s arguments, the trial court stated the independent medical examinations were neither cumulative nor unfairly prejudicial: “The fact that other people found the same thing, that is not cumulative. That is a fact that the jury is entitled to know.” The trial court overruled Tisdall’s objection.
Despite the Varebrooks’ argument to the contrary, we conclude Tisdall’s complaint is preserved for appellate review. See Tex. R. Evid. 103(b) (providing that “[w]hen the court hears a party’s objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal.”).” Tisdall v. Varebrook, No. 04-19-00538-CV, 2021 Tex. App. LEXIS 5974, at *18-19 (Tex. App.—San Antonio July 28, 2021)
You have to get a ruling on your objection:
Evidence: “ National Western and Group provided as evidence extensive, detailed, contemporaneous billing records that showed what specific services were performed, who performed those services, approximately when those services were performed, the amount of time required to perform the services, [*57] and the hourly rate for each person performing such services. They also provided information regarding the experience and qualifications of each attorney whose work was included in the billing records. The defendants’ attorneys’ affidavits expressly stated that the contemporaneous billing records reflected the amount of time and fees that were reasonably necessary to represent the defendants. They also proffered evidence in the form of affidavit testimony and news articles regarding the reasonableness of hourly rates for attorney’s fees generally charged in the area. To the extent that Moody Jr. now attempts to object to the affidavits, such objection is waived by his failure to obtain a ruling from the court. See Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012); Tex. R. App. P. 33.1.” Moody v. Nat’l W. Life Ins. Co., No. 01-18-01106-CV, 2021 Tex. App. LEXIS 5949, at *56-57 (Tex. App.—Houston [1st Dist.] July 27, 2021)
All for now. Y’all have a great week.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com