Error Preservation in Texas Civil Cases, August 20, 2018

Dear All:

Here is a list of those things covered in this entry in the blog:

Table of Contents


Then, there were fourteen cases in which courts held that the complaint was not raised at all in the trial court.

You may preserve a legal and factual sufficiency complaint as to the jury verdict in your motion for new trial:


Legal and Factual Sufficiency: “In his first and second issues, Ratliff argues the evidence is legally and factually insufficient to support the finding that he is a sexually violent predator. [*4] Ratliff preserved these issues for appeal by raising them in his motion for new trial. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 324(b); T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex. 1992) (legal sufficiency challenge following jury trial may be preserved by motion for new trial).” In re Commitment of Ratliff, No. 05-16-01425-CV, 2018 Tex. App. LEXIS 6329, at *3-4 (App.—Dallas Aug. 13, 2018)

You can waive a complaint about the lack of pleading a cause of action if you try the cause of action by consent:


Pleading: “‘When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Tex. R. Civ. P. 67; Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005) . . . .Johnson v. Oliver, 250 S.W.3d 182, 186 (Tex. App.—Dallas 2008, no pet.). However, when the evidence of an unpleaded matter is relevant to pleaded issues, the evidence could not be expected to elicit an objection so the unpleaded matter is not tried by consent. Moneyhon v. Moneyhon, 278 S.W.3d 874, 879 n.6 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Trial by implied consent “is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties tried the unpleaded issue. It is not intended to establish a general rule of practice and should be applied with care, and in no event in a doubtful situation.” Jay Fikes & Associates v. Walton, 578 S.W.2d 885, 889 (Tex. Civ. App.—Amarillo 1979, writ ref’d n.r.e.); Libhart v. Copeland, 949 S.W.2d 783, 797 (Tex. App.—Waco 1997, no writ) . . . .The court determines whether an issue was tried by implied consent by examining the record, not for evidence of the issue, but for evidence of trial of the issue. Beck v. Walker, 154 S.W.3d 895, 901 n.3 (Tex. App.—Dallas 2005, no pet.). . . . In the present matter, it is undisputed that the mother filed no pleading requesting court-ordered child support for T.S. The focus therefore moves to whether the support issue was tried by implied consent. . . . .The mother’s presentation of her request for child support for T.S. was separate from issues of support for T.A.L. and C.E.L. and was not relevant to other pleaded issues. Notwithstanding the mother’s clear annunciation of her request for an order requiring the father to pay child support for T.S., the father did not object until months after trial during post-trial proceedings leading to the written judgment. Because the issue of the father’s obligation to pay child support for T.S. was tried by implied consent, [*13] the trial court did not abuse its discretion in ordering such support from the father. See Guillory v. Boykins, 442 S.W.3d 682, 691 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (finding the issue of sole managing conservatorship for the father, while not raised by his pleadings, was tried by implied consent and the trial court therefore did not err in appointing him sole managing conservator of the child). The father’s sole issue on appeal is overruled.” In the Interest of T.A.L., Nos. 07-17-00274-CV, 07-17-00275-CV, 2018 Tex. App. LEXIS 6365, at *10-11 (App.—Amarillo Aug. 14, 2018)

You have to make your complaint in a timely fashion:


Evidence: “In her sixth and seventh issues, Mother argues that the trial court abused its discretion by admitting testimony regarding facts that formed the basis of a previous order terminating her parental rights to her twins, that the evidence was irrelevant to the instant case, that it was unfairly prejudicial, and that the trial court erred by denying her motion for new trial alleging these same arguments. Mother contends that testimony regarding her prior drug use and being discharged from an inpatient-treatment [*29] program at a Volunteers of America facility was irrelevant to prove any fact of the current case and was more prejudicial than probative. Mother admitted in her second amended motion for new trial that “[n]o objection to such inquiries was made” by her trial counsel. Because Mother did not object to the complained-of evidence, her complaints are not preserved for our review. See Tex. R. App. P. 33.1(a);” In the Interest of G.H., No. 02-18-00080-CV, 2018 Tex. App. LEXIS 6507, at *28-29 (App.—Fort Worth Aug. 16, 2018)

You must get a ruling on your complaint:


Supersedeas: “To the extent appellant’s motion can be construed as a challenge to the bond amount based on substantial economic harm under Rule 24.2(b) of the Texas Rules of Appellate Procedure, we conclude appellant did not preserve such a challenge in the county court. A county court has continuing jurisdiction to order the amount and type of security or, if circumstances change, to modify the amount or type of security even after its plenary power expires. Tex. R. App. P. 24.3(a). Further, an appellate court reviews a [*4] county court’s determination of whether an appellant is likely to suffer substantial economic harm for an abuse of discretion. See O.C.T.G., L.L.P. v. Laguna Tubular Products Corp., 525 S.W.3d 822, 831 (Tex. App.—Houston [14th Dist.] 2017, op. on motion). We cannot review the county court’s exercise of discretion unless the record demonstrates that a request to reduce the amount of security due to substantial economic harm was presented to the county court and a ruling made thereon. See Law Eng’g & Envtl. Servs., Inc. v. Slosburg Co., 100 S.W.3d 389, 390 (Tex. App.—Houston [1st Dist.] 2002, order). Our record does not show that the county court has ruled on such a request.” Johnson v. Villatoro, No. 14-18-00150-CV, 2018 Tex. App. LEXIS 6350, at *3-4 (App.—Houston [14th Dist.] Aug. 14, 2018)

All for now.  Hope this helps.  Y’all take good care.

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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