September 4, 2021
Dear Friends:
Well, I’m back to a week behind, but I’ll try to catch up this next week.
Table of Contents
I think this is the first civil case in which a court has held that a party did not preserve a complaint that a virtual trial violated his constitutional rights–and the court held that complaint was not specific enough. This is long-but it may give a checklist of specific complaints to include in an objection to a virtual trial
Constitution
The following lengthy discussion is worth reading, because it discusses a successful evidentiary complaint
Evidence
A complaint about lack of subject matter jurisdiction may first be raised on appeal
Your complaint must be timely
Guardian
Your complaint on appeal must comport with the complaint you made below
Legal Insufficiency
You have to comply with other pertinent rules
New Trial
While I won’t profile them here, opinions this week reaffirmed that you must make complaint about the following in the trial court
Amicus
Attorney’s Fees
Cause of Action
Cause of Action
Constitution
Contract
Discovery
Evidence
Injunction
Interview
Judgment
Quantum Meruit
Right to Confer
Sanctions
Service
Waiver
Writ of Garnishment
Blurbs
I think this is the first civil case in which a court has held that a party did not preserve a complaint that a virtual trial violated his constitutional rights–and the court held that complaint was not specific enough. This is long-but it may give a checklist of specific complaints to include in an objection to a virtual trial:
Constitution: “ To preserve an issue for our review, the record must show that trial counsel objected 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); ….At the pre-trial hearing, Father’s counsel stated:
Yes, Judge, we would have an objection. We are dealing with constitutional rights here. This isn’t a case over a contract. Analogous to criminal law.
For that reason, we feel that in-person jury is required for termination of parental right lawsuit filed by the government.
Mother’s counsel joined the objection:
Your Honor, I object to the virtual, aligned with [*6] the father and his attorney with that.
I would ask for mediation to be able to go over some of the other forms that the Court has spoken about with my client, to see at that time after mediation we come back and advise the Court, I would like to change that announcement, but as of right now, I would be objecting to virtual trial.
At trial, Mother did not object to the virtual trial and announced ready. On appeal, Mother articulates a host of alleged constitutional violations implicated by remote jury trial proceedings:
• Due process rights to the care, custody, and control of children under the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution.
• Right to a trial by jury under the Fifth, Seventh, and Fourteenth Amendments to the United States Constitution.
• Right to an impartial jury because of inadequate voir dire under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution.
• Right to an impartial jury because of trial counsel’s inability to intelligently use peremptory challenges under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution.
• Right to effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, Sections 10, 13, and 19 of the Texas Constitution.
• Right to meaningful examination and scrutiny of testimony at trial and effective assistance of counsel because of an alleged lack of safeguards assuring compliance with Texas Rule of Evidence 614 (i.e., “the Rule”) under the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 19 of the Texas Constitution.
• Right to direct examination and presentation of evidence arising [*7] under the Compulsory Process Clause of the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution, and the right to due process enshrined in both. This argument embraces (1) the right to present demonstrative evidence and demonstrative aids, including demonstrative evidence requiring a witness’s physical interaction and the jury’s ability to inspect evidence for physical traits and quality; and (2) the right to refresh the recollection of a witness.
• Right to confrontation under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution.
Constitutional claims must be raised in the trial court or they are not preserved for appellate review….Under the unique circumstances of this case, Mother’s generalized complaint in a pre-trial hearing, that “constitutional rights are implicated” before later announcing ready for trial was not sufficient to preserve this issue for our review because the complaint does not tell the trial court why she was entitled to the relief sought so that the trial court could make an informed ruling. Tex. R. App. P. 33.1(a);” In the Interest of S.R.F., No. 04-21-00049-CV, 2021 Tex. App. LEXIS 6971, at *5-7 (Tex. App.—San Antonio Aug. 25, 2021)
The following lengthy discussion is worth reading, because it discusses a successful evidentiary complaint:
Evidence: “The State argues that Jackson has not preserved this complaint because he did not object at the commitment proceeding that the hearsay details in the records of his sexual offenses were not a reliable foundation for Dr. Proctor’s opinion. The State asserts that Jackson’s objection to hearsay and the prejudicial effect of Dr. Proctor’s testimony raised only the issue of whether Dr. Proctor should be allowed to transmit the hearsay details to the jury, not whether Dr. Proctor could rely on those details in forming his opinion. And so, Jackson neither informed the trial court of the need for a gatekeeping hearing nor made an objection that comports with his complaint on appeal. See Tex. R. App. P. 33.1(a)(1)(A) (objection must be made with “sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context”); see also Religious of Sacred Heart of Tex. v. City of Hous., 836 S.W.2d 606, 614 (Tex. 1992) (complaint made on appeal must comport with objection made at trial).
….
By objecting to hearsay before the State examined Dr. Proctor on Jackson’s history of sexual offenses and arguing that the hearsay details of the sexual offenses were more prejudicial than probative, Jackson invoked Rule 705(d)’s balancing test for determining when an expert may disclose otherwise inadmissible facts to the jury. See Tex. R. Evid. 705(d). But in arguing his objection, Jackson also asserted that the information Dr. Proctor relied on in forming his opinion lacked “some indicia of reliability” and challenged [*15] whether Dr. Proctor could reasonably rely on the “unvetted” allegations of unadjudicated sexual offenses, such as the allegation that he had continuously offended against his stepdaughter between the ages of six and thirteen. And the record reveals that the trial court understood Jackson’s objection as requiring some evaluation of the foundational reliability of Dr. Proctor’s opinion. At the hearing on Jackson’s objection, the trial court asked Dr. Proctor questions aimed not only at (1) whether the probative value of the hearsay details of the sexual offenses was outweighed by their prejudicial effect, see Tex. R. Evid. 705(d), but also (2) whether the hearsay details were the type of information reasonably relied on by experts in the field of forensic psychology, see Tex. R. Evid. 703.3 In this context, we conclude that Jackson’s complaint that the trial court failed to fulfill its gatekeeping role in ensuring the reliability of Dr. Proctor’s opinion is preserved for our review. See Tex. R. App. P. 33.1(a)(1)(A).” In re Jackson, No. 01-20-00152-CV, 2021 Tex. App. LEXIS 6930, at *13-15 (Tex. App.—Houston [1st Dist.] Aug. 24, 2021)
A complaint about lack of subject matter jurisdiction may first be raised on appeal:
Lack of Subject Matter Jurisdiction: “The Board does not dispute that the original petition was timely filed within ten days of the Board’s June 18, 2018 decision. The Board argues on appeal,[n. 2] however, that PDT was required [*10] to file a new petition (either by amendment in this case or in a new case) within ten days of the May 20, 2020 Board hearing. [n. 2]: PDT complains that the Board did not raise this contention in its plea to the jurisdiction. HN6 However, jurisdictional arguments can be raised for the first time on appeal. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting appellate court is not precluded from considering governmental immunity for first time on interlocutory appeal because governmental immunity deprives court of subject matter jurisdiction); Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per curiam) (subject-matter jurisdiction cannot be waived and can be raised at any time).” City of Dall. v. PDT Holdings, Inc., No. 05-21-00018-CV, 2021 Tex. App. LEXIS 6989, at *9 (Tex. App.—Dallas Aug. 24, 2021)
Your complaint must be timely:
Guardian: “A review of the record reveals that appellants did not object to the appointment of a guardian ad litem. Rule 173 expressly contemplates a trial objection to the appointment of a guardian ad litem and provides the right to seek the extraordinary remedy of mandamus review of an order appointing a guardian ad litem. See Tex. R. Civ. P. 173.3(c), 173.7(a). Therefore, the rule clearly envisions a prompt resolution of issues surrounding the appointment of a guardian ad litem—while the action is pending. See Magna Donnelly Corp. v. DeLeon, 267 S.W.3d 108, 114 (Tex. App.—San Antonio 2008, no pet.). Moreover, a timely and specific trial objection [*10] that provides the trial court with an opportunity to cure the error is generally a prerequisite to presenting a complaint on appeal. Tex. R. App. P. 33.1(a). Here, appellants raised their objection to the appointment of a guardian ad litem for the first time at the hearing on appellee’s application for fees. By failing to raise a timely objection, appellants failed to make the trial court aware of their contention that there was no conflict, or apparent conflict, between the parents and the minor. Accordingly, appellants have not properly preserved this issue for appeal. See Magna Donnelly Corp., 267 S.W.3d at 114. We overrule appellant’s issue in part as it relates to the appointment of a guardian ad litem.” McAllen Hosps., L.P. v. Sepulveda, No. 13-19-00366-CV, 2021 Tex. App. LEXIS 7089, at *9 (Tex. App.—Corpus Christi Aug. 26, 2021)
Your complaint on appeal must comport with the complaint you made below:
Legal Insufficiency: “Appellee argued to the ALJ that the statements in Trooper Perrault’s report were conclusory, and in his Petition for Appeal of Administrative Decision he argued “there was insufficient evidence of probable cause[.]” On appeal to this Court, he argues that “[t]he record is completely void of any evidence, testimonial or otherwise, regarding any of the seven approved permissible reasons that a driver may operate a vehicle on an improved shoulder or that doing so was unsafe.” According to Appellee, the evidence was insufficient to support the traffic stop “as it amounts to nothing more than a conclusory statement.” Appellee failed to argue to the ALJ or the district court that the Department did not present evidence of the “seven approved permissible reasons that a driver may operate a vehicle on an improved shoulder.” Consequently, he has waived this argument for appeal. See Tex. R. App. P. 33.1; Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (a party’s argument on appeal must comport with its argument at trial).” Tex. Dep’t of Pub. Safety v. Hargroder, No. 09-21-00070-CV, 2021 Tex. App. LEXIS 7068, at *10 (Tex. App.—Beaumont Aug. 26, 2021)
You have to comply with other pertinent rules:
New Trial: “First, J.L.D. claims that the trial court erred by conditioning his grant of the expanded standard possession order on his participation in counseling sessions with Georgia Beard because his participation became impossible when Beard declined to counsel him [because she was not taking on new patients]. We disagree….On April 15, J.L.D. filed his “First Supplemental Motion to Modify, Correct, or Reform Judgment and Motion for New Trial,” claiming in part that it is impossible for him to comply with the order to participate in counseling with Beard because she declined to perform the [*41] required services. He attached to his motion a letter purportedly from Beard….The record contains no indication that J.L.D. requested a hearing on the motion or that the trial court expressly ruled on the motion. J.L.D. has failed to preserve this issue for our review…. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly [*42] made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court. Id. 33.1(b). Although the record before us contains J.L.D.’s motion for new trial raising the impossibility issue, and the motion was overruled by operation of law, the overruling of the motion did not preserve J.L.D.’s complaint for our review because taking evidence was necessary to properly present the complaint in the trial court. See id. The letter attached to the motion alone is insufficient to establish that Beard declined to perform the services for J.L.D. because it is unauthenticated and contains no addressee. J.L.D. did not request an evidentiary hearing and does not argue on appeal that the trial court should have held a hearing on the motion. Because taking evidence was necessary to properly present the complaint in the trial court, the overruling by operation of law of J.L.D.’s motion for new trial did not preserve his issue for our review. See Tex. R. App. P. 33.1(b).” In the Interest of C.R.D., No. 12-20-00143-CV, 2021 Tex. App. LEXIS 7039, at *40-42 (Tex. App.—Tyler Aug. 25, 2021)
All for now, mis amigos y amigas. Take good care, and stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com