Error Preservation in Texas Civil Cases, August 24, 2019

Dear All:

As we come to the end of the fiscal year for the courts of appeals, here are some of the error preservation decisions from last week.

Table of Contents


Here are the opinion compilations on the foregoing issues

You don’t have to cite the specific case in your summary judgment response in order to rely on that case on appeal—merely arguing its premise is sufficiently specific:


Summary Judgment:  “Kroger argues that Mendoza waived any argument under Corbin by not relying on it in the trial court. We cannot agree. We see no legal basis for Kroger’s argument that application [*14]  of Corbin in a premises-defect case can be waived by failure to cite to the case. It has never been the law that a particular case must be cited to argue the application of its underlying principle. Cf., e.g., Tex. Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536 (Tex. 2012) (“Casteel error may be preserved without specifically mentioning Casteel.”). Mendoza was not required to cite to Corbin to rely on its legal principles. Even if she were required to have done so, Mendoza specifically argued in response to Kroger’s summary-judgment motion that “the water refill station placed in a high foot traffic area posed an unreasonable risk of harm in itself . . . .” This argument that the self-serve water dispenser presented an unreasonably dangerous condition aligns with the Corbin analysis and invites analysis of Kroger’s knowledge focused on the water dispenser versus the fallen water.”  Hernandez v. Kroger, No. 01-18-00562-CV, 2019 Tex. App. LEXIS 7555, at *13-14 (Tex. App.—Houston [1st Dist.] Aug. 22, 2019)

A party can first raise the issue of governmental immunity on appeal.


Governmental Immunity:  “TxDOT correctly asserts that we must address this argument. HN5 Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code does not divest appellate courts of authority to review immunity claims first asserted on interlocutory appeal. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). In this situation, we “must construe the pleadings in favor of the party asserting jurisdiction, and if necessary, review the record for evidence supporting jurisdiction.” Id. at 96. If the pleadings and record neither demonstrate jurisdiction nor conclusively negate it, the defendant bears the burden of showing the plaintiff failed to show or would be unable to show jurisdiction. Id. If the defendant meets this burden, then we must dismiss the plaintiff’s case; otherwise, we remand [*10]  the cause to the trial court for further proceedings. Id.”  Tex. DOT v. Markham, No. 04-18-00812-CV, 2019 Tex. App. LEXIS 7376, at *9 (Tex. App.—San Antonio Aug. 21, 2019)

You have to obtain a ruling:


Discovery: “ In order to preserve error, a party must make a timely request for relief and obtain a ruling from the trial court. Tex. R. App. P. 33.1(a). Addison waited to request limited discovery until the very day of the hearing at which it was supposed to present its prima facie case. Although Addison raised its conditional request for discovery during the hearing, Addison did not obtain a ruling on the requested discovery either at the hearing or in the trial court’s written order. Addison, therefore, failed to preserve its cross-point for our review.”  ETC Tex. Pipeline, Ltd. v. Addison Expl. & Dev., LLC, No. 11-18-00152-CV, 2019 Tex. App. LEXIS 7524, at *32 (Tex. App.—Eastland Aug. 22, 2019)

Discovery: “We conclude Criswell failed to preserve his complaint about whether the Allisons failed to produce documents to comply with his request to produce. While Criswell obtained a ruling on his request that the Allisons organize and label their production, he never got a ruling on his motion to compel them to produce more documents. Because Criswell failed to preserve the alleged error, we overrule his second issue.”  Criswell v. Allison, No. 09-18-00003-CV, 2019 Tex. App. LEXIS 7540, at *8 (Tex. App.—Beaumont Aug. 22, 2019)

Discovery: “ Buholtz does not show, and nothing in the record indicates, he requested a hearing on either his motion to compel or the other motions. Thus, to the extent Buholtz complains the trial court erred in not ruling on the motions, he has failed to preserve the complaint for our review. See Tex. R. App. P. 33.1.”  Buholtz v. Gibbs, No. 05-18-00957-CV, 2019 Tex. App. LEXIS 7469, at *14 (Tex. App.—Dallas Aug. 21, 2019)

You have to comply with the pertinent rules:


Default Judgment (New Trial): “Here, [*5]  Maldonado did not file a motion for a new trial, and her attack on the judgment relies on extrinsic evidence. Accordingly, Maldonado failed to preserve this issue for our review. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 324(b).”  Maldonado v. Medrano, No. 13-18-00525-CV, 2019 Tex. App. LEXIS 7453, at *4-5 (Tex. App.—Corpus Christi Aug. 22, 2019)

There were also a number of cases in which courts held that parties failed to preserve error because they failed to raise their complaint in the trial court.

I hope this helps.  Y’all have a good weekend, and a good week.

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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