Error Preservation in Texas Civil Cases, August 22, 2020

August 22, 2020

Dear All:

Well, the courts continue churning out opinions to move as many cases as they can prior to the end of the fiscal year, and as usual this time of year the opinions contain their fair share of error preservation decisions:

Table of Contents

The Dallas Court has reminded us of one of the dangerous shoals in charge practice

The Corpus Court has provided us an example of how to preserve a complaint about a failure to segregate attorneys’ fees

The Houston 14th Court provided a couple of examples of timely objection, one involving a TCPA motion to dismiss and one involving a non-party’s objection to a subpoena duces tecum

The Dallas Court also gave us an example of an argument on appeal which corresponded with an argument made at trial, in an arbitration matter

The Eastland Court held that a motion for reconsideration properly preserved a complaint that Chapter 38 of the TCPRC precludes recovery of fees against an LLC in an unusual summary judgment circumstance

You have to comply with the pertinent rules, like the summary judgment rule.

The Blurbs

The Dallas Court has reminded us of one of the dangerous shoals in charge practice:

Jury Charge: “The Heatley parties argue that because there was a fact issue requiring jury determination on their level of intent or fault, the lack of a jury question and answer is fatal to the trial court’s conclusion to order fee forfeiture. We cannot reverse on this basis because they neither objected nor submitted a question “in substantially correct wording.” See Tex. R. Civ. P. 274, 278.

In the absence [*28] of a submitted question, an objection will preserve error where, as here, the party seeking reversal did not have the burden of proof with respect to the question at issue. See Tex. R. Civ. P. 278; Childress Eng’g Servs. Inc. v. DeLeon, No. 05-16-00429-CV, 2017 Tex. App. LEXIS 11086, 2017 WL 5898520, at *2 & n.2 (Tex. App.—Dallas Nov. 29, 2017, pet. denied) (mem. op.). Objections to a jury charge must be made “before the charge is read to the jury” and “must be specific, pointing out ‘distinctly the objectionable matter and the grounds of the objection.'” DeLeon, 2017 Tex. App. LEXIS 11086, 2017 WL 5898520, at *2 (quoting Tex. R. Civ. P. 272, 274). “Failure to timely object to error in a jury charge waives that error.” Id.

The Heatley parties did not tender a question related to fee forfeiture, addressing the level of intent with which they breached their fiduciary duties or specifically addressing any other Burrow factor. They did not object to the lack of such a question. See Tex. R. Civ. P. 274, 278. Thus, we cannot reverse in their favor, as parties who failed to object to the absence of a jury question or to submit one at all.See id.” Heatley v. Red Oak 86, L.P., No. 05-18-01083-CV, 2020 Tex. App. LEXIS 6592, at *27-28 (Tex. App.—Dallas Aug. 17, 2020)

The Corpus Court has provided us an example of how to preserve a complaint about a failure to segregate attorneys’ fees:

Attorney’s Fees: “By their ninth issue, appellants argue the Jameses failed to segregate their attorney’s fees between collectable and non-collectable causes of action, and alternatively, they failed to present evidence that the causes of action were so interrelated that their prosecution entailed proof of the same facts, which would negate the requirement to segregate. n. 24 The Jameses assert appellants’ ninth issue is waived because appellants “made no relevant objection when the evidence was presented or when the question was submitted to the jury.” The reporter’s record indicates otherwise. Appellants’ counsel objected during the charge conference, arguing in part:

there’s no evidence to support the submission of attorneys’ fees and there’s no evidence on which a reasonable juror could base his or her decision awarding attorneys’ fees in this case. We also object to the failure to segregate attorneys’ fees between covered and noncovered claims and would argue that the 5 percent segregation was not adequately explained or supported by any evidence in the case.”

Tex. Windstorm Ins. Ass’n v. James, No. 13-17-00401-CV, 2020 Tex. App. LEXIS 6719, at *63, n. 24 (Tex. App.—Corpus Christi Aug. 20, 2020)

The Houston 14th Court provided a couple of examples of timely objection, one involving a TCPA motion to dismiss and one involving a non-party’s objection to a subpoena duces tecum:

Timeliness of TCPA Motion: “Because it is dispositive, we first address AOT’s and Astra Oil’s contention that the trial court did not err in denying Petrobras America’s and Petrobras’s TCPA motion to dismiss because it was untimely filed. n. 43 n. 43We disagree with Petrobras America’s and Petrobras’s contention in their reply brief that AOT and Astra Oil only raise timeliness for the first time on appeal and thus waived the issue. AOT and Astra Oil raised timeliness in their response: “Had Petrobras actually believed that its right to pursue the Arbitration was a First Amendment right and a stay of the Arbitration justified an anti-SLAPP motion, the time to have challenged that was prior to the entry of the Final Judgment, which declared that Petrobras’ Arbitration claims were barred, or prior to the entry of the Order, which enforced the Final Judgment by staying the Arbitration.” And the record of the hearing reflects that Petrobras America and Petrobras addressed the “timing issue.” We further disagree that by “effectively conceding” timeliness, AOT and Astra Oil “denied” Petrobras America and Petrobras the opportunity to argue good cause for an extension under section 27.003(b).” Petrobras Am., Inc. v. Astra Oil Trading NV, Nos. 14-18-00728-CV, 14-18-00793-CV, 14-18-00798-CV, 2020 Tex. App. LEXIS 6680, at *63 n.43 (Tex. App.—Houston [14th Dist.] Aug. 20, 2020)

Subpoena duces tecum: “The Yamins argue that their objections to the subpoena duces tecum and the production of their tax returns and related documents were timely because the subpoena duces tecum set the due date as February 15, 2020. . . . Rule 200.1 provides the procedure for noticing a deposition upon written question. See Tex. R. Civ. P. 200.1(b). It provides that “[t]he notice also may include a request for production of documents as permitted by Rule 199.2(b)(5), the provisions of which will govern the request, service, and response.” Id. Rule 199.2(b)(5) provides:

. . . .The nonparty’s response to the request is governed by Rules 176 and 205. . . .

Tex. R. Civ. P. 199.2(b)(5). . . . Rule 176.6(d) provides that the person commanded to produce documents may serve written objections “before the time specified for compliance.” Tex. R. Civ. P. 176.6(d). Under Rule 193.2, a party must make an objection to written discovery in writing “within the time for response” Tex. R. Civ. P. 193.2. Thus, the Yamins contend that either under Rule 176.6 or Rule 193.2 objections are timely if made before the time for the response. The subpoena stated: “RECORDS NEEDED BY 2/15/20.” The Yamins made their objections on February 12, 2020, before Hardy was required to produce the tax returns and documents related to the returns. The Yamins’ objections were timely.n. 3 n. 3 Rule 196.2(a), which applies to a witness subject to the control of a party, provides that “[t]he responding party must serve a written response on the requesting party within 30 days after the service of the request.” Tex. R. Civ. P. 196.2(a). The response was served within 30 days after service of the requests and, therefore, was timely. Id. ” In re Yamin, No. 14-20-00280-CV, 2020 Tex. App. LEXIS 6676, at *8 (Tex. App.—Houston [14th Dist.] Aug. 20, 2020)

The Dallas Court also gave us an example of an argument on appeal which corresponded with an argument made at trial, in an arbitration matter:

Arbitration: “Here, appellees argued in the trial court that (1) under the rules of contract law, “the intent of the parties is determined from the [contract’s] plain language,” which must be capable of being “given a definite and certain legal meaning,” and (2) the terms “Agreement” and “License”—which are pertinent to the contract’s definition of the material term “relationship”—were not definite or certain. During the hearings, appellants acknowledged the materiality of the term “relationship” and the use of that term in the arbitration provision, but disputed appellees’ position regarding the meaning of those three terms. The trial court specifically focused on, and requested additional authority regarding, those arguments. Appellants also acknowledged that appellees “raised a meeting of the mind objection.”

On appeal, the essence of appellees’ complained-of argument is the lack of definiteness and certainty [*14] regarding the same three terms addressed at the hearings, at least one of which is undisputedly material. On this record, we conclude appellees’ appellate argument corresponds to their argument asserted in the trial court and was not waived. See Citibank, 2013 WL 3205878, at *4 (concluding party’s trial court argument that there was no “meeting of the minds” corresponded to, and thus preserved, its complaint made for first time on appeal that terms of alleged agreement “were unclear, indefinite” and “lacked sufficient clarity”); see also Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018) (“Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.”); cf. Ridge Nat. Res., L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 123-28 (Tex. App.—El Paso 2018, no pet.) (concluding party’s “fleeting references to ambiguity” of arbitration contract did not “subsume a meeting-of-the-minds or formation argument” in trial court because party never argued “that the ambiguity dealt with material terms or that the conflicting provisions otherwise invalidated the arbitration agreement”).” Baby Dolls Topless Saloons v. Sotero, No. 05-19-01443-CV, 2020 Tex. App. LEXIS 6760, at *13-14 (Tex. App.—Dallas Aug. 21, 2020)

The Eastland Court held that a motion for reconsideration properly preserved a complaint that Chapter 38 of the TCPRC precludes recovery of fees against an LLC in an unusual summary judgment circumstance:

Attorney’s Fees: “By the trial court’s own words, the second judgment was based upon “the pleadings on file, the evidence, the additional attorney fee affidavit presented in open court and filed thereafter, as well as Defendant’s objections to such affidavit and the arguments of counsel.” The pleadings on file at the time that the last summary judgment was entered included D. Webb Industries’ claim that the trial court could not assess Chapter 38 attorney’s fees against D. Webb Industries. We hold that D. Webb Industries did not waive its objection to the award of attorney’s fees.” D. Webb Indus., LLC v. Permian Equip. Rentals, LLC, No. 11-18-00221-CV, 2020 Tex. App. LEXIS 6690, at *13 (Tex. App.—Eastland Aug. 20, 2020)

You have to comply with the pertinent rules:

Summary Judgment: “In response, Villarreal argues that Flores failed to preserve a blanket objection to the use of summary judgment procedure in accelerated election contests because (1) he failed to raise the issue in his summary judgment response, (2) he did not object to the delayed trial setting when it was ordered by the trial court, and (3) his counsel explicitly agreed at the summary judgment hearing that summary judgment procedure is “proper” in an election contest.

We agree that the issue has not been preserved. When summary judgment is granted, “[i]ssues [*16] not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” TEX. R. CIV. P. 166a(c). Though Flores argued in his motion to reconsider that summary judgment is improper in election contests generally, he did not make this argument in his summary judgment response, in his summary judgment sur-reply, or at the summary judgment hearing. Therefore, we may not reverse the judgment on that basis. See id.Flores v. Villarreal, No. 13-20-00309-CV, 2020 Tex. App. LEXIS 6568, at *15-16 (Tex. App.—Corpus Christi Aug. 17, 2020)

Y’all stay safe and well, and have a good weekend.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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