Error Preservation in Texas Civil Cases, August 29, 2020

August 29, 2020

Hidey Ho, Fellow Campers!  Only about 2 days left in this fiscal year for the Texas appellate courts, and they have kicked out the error preservation stops, so to speak.  It is interesting–while I did not specifically check the numbers from the last few years, it seems like this year followed a familiar pattern:  of the roughly 440 error preservation rulings in civil cases in the Texas appellate courts I found this year, roughly 48 of them came in opinions issued in the last two weeks.  That’s roughly 11% of the total rulings for the year in just two weeks.  In just this last week, I found about 35 such error preservation rulings, or roughly 8% of the year’s entire count.  I think we probably cannot deny that the network outage for the courts of appeals earlier this summer undoubtedly shifted some of those rulings to this late in the summer.  Still, it does seem that this time of year sees more than its fair share of error preservation rulings.  And finds me not getting to Saturday’s chores until far later in the day.

Table of Contents

The El Paso Court reminds us that if the other side objects to our summary judgment evidence, if the trial court sustain those objections and we don’t object to that ruling or respond to those objections, we can’t complain about the trial court’s ruling.

You must make your complaint in a timely fashion

Expert Witness Designation (Attorney’s Fees)

Your complaint must be specific enough–especially in the context of the charge

Jury Charge

You have to obtain a ruling on your complaint

Continuance
Summary Judgment Evidence

You have to comply with the pertinent rules

Evidence
Notice (New Trial)
Summary Judgment

The Blurbs

While the courts of appeals split on this issue, the El Paso Court reminds us that if the other side objects to our summary judgment evidence, if the trial court sustain those objections and we don’t object to that ruling or respond to those objections, we can’t complain about the trial court’s ruling:

Summary Judgment Evidence: “Because the record reflects no response to the objections prior to the summary-judgment ruling, the evidentiary issues were preserved for review only to the extent they also were advanced in Hawhurst’s motion for reconsideration and new trial.” Hawxhurst v. Austin’s Boat Tours, No. 08-19-00257-CV, 2020 Tex. App. LEXIS 6988, at *4 (Tex. App.—El Paso Aug. 28, 2020)

You must make your complaint in a timely fashion:

Expert Witness Designation (Attorney’s Fees): “During a hearing on Talley’s motion to modify, Young objected to the request for appellate attorney’s fees on the ground that Talley had not designated trial counsel as an expert witness, and he offered Talley’s response to requests for disclosure in support. Talley argued that the objection was untimely because the trial court had previously considered an affidavit by trial counsel and awarded attorney’s fees. The trial court did not explicitly rule on the objection but granted the motion to modify and awarded appellate attorney’s fees in the amount of $17,000. Because Young did not object to the previously [*16] considered evidence, Young’s objection that Talley had not properly designated an expert on attorney’s fees was untimely and he has not preserved that issue on appeal. See Tex. R. App. P. 33.1(a).” Young v. Talley, No. 13-19-00199-CV, 2020 Tex. App. LEXIS 6881, at *15-16 (Tex. App.—Corpus Christi Aug. 27, 2020)

Your complaint must be specific enough–especially in the context of the charge:

Jury Charge: “We agree with HouseCanary. While TSI made global objections to the whole of Question 37, it did not specifically identify any issues with the “complexity score” and “AVM” portions of that question. Tex. R. Civ. P. 274; Tex. R. App. P. 33.1; see also Watts v. Watts, 396 S.W.3d 19, 23 (Tex. App.—San Antonio 2012, no pet.) (“In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court.”). Nor did it object to the broad-form nature of the question. See In re A.V., 113 S.W.3d 355, 363 (Tex. 2003) (holding Casteel complaint not preserved because objection did not “put [the] trial court on notice to submit a granulated question”); Watts, 396 S.W.3d at 23. Finally, the heart of a Casteel objection is that a broad-form question combines multiple legal theories, some of which are valid and some of which are not. See, e.g., Laredo Med. Grp. Corp. v. Mireles, 155 S.W.3d 417, 426-27 (Tex. App.—San Antonio 2004, pet. denied.). The objections TSI raised in the trial court—that “the alleged items that are claimed to be trade secrets are not clearly identified specifically for the Jury”; that the terms used in Questions 37 “are vague, nebulous, misleading, and it’s impossible to determine what they mean”; [*27] and “there’s no evidence that any of the items listed are trade secrets”—were not specific enough to put the trial court on notice that TSI believed the “AVM” and “complexity score” portions of Question 37 mixed valid and invalid legal theories.” Title Source, Inc. v. HouseCanary, Inc., No. 04-19-00044-CV, 2020 Tex. App. LEXIS 6835, at *26-27 (Tex. App.—San Antonio Aug. 26, 2020)

Jury Charge: “Rule 274 of the Texas Rules of Civil Procedure requires that “[a] party objecting to a charge must point out distinctly the objectionable matter and the grounds for the objection.” Tex. R. Civ. P. 274. A charge error objection does not meet Rule 274’s requirements unless the alleged error and the grounds of the objection are stated specifically enough to show the trial court was fully cognizant of the objection’s [*19] basis and deliberately chose to overrule it. Saenz-Guerrero v. Gardner, 587 S.W.3d 191, 194 (Tex. App.-Houston [14th Dist.] 2019, no pet.). Thus, the objecting party must clearly designate the alleged error and specifically explain the basis of its objection. Id. Because the City failed to object to the inclusion of the instruction it now complains of on appeal, we conclude the City did not preserve this complaint. Id.City of Palestine v. LS Equip. Co., No. 12-19-00264-CV, 2020 Tex. App. LEXIS 6850, at *18-19 (Tex. App.—Tyler Aug. 26, 2020)

You have to obtain a ruling on your complaint:

Continuance: “Moreover, even if Syed’s affidavit and response were sufficient, there is no indication in the record that Syed received a ruling regarding a continuance or objected to the court’s failure to rule; thus, he has preserved nothing for review.” Syed v. Weathershield Sols., LLC, No. 14-18-01104-CV, 2020 Tex. App. LEXIS 6793, at *11 (Tex. App.—Houston [14th Dist.] Aug. 25, 2020)

Summary Judgment Evidence: “Hargrave and Senior Living acknowledge that Reynolds filed objections to the form of Hargrave’s affidavit regarding her reporting of the incident and her statements concerning good faith and the authenticity of the Texas Department of Aging and Disabilities report. On appeal, Reynolds asserts that these objections were overruled by the trial court. However, the record does not reflect any ruling by the trial court on Reynolds’s objections. The failure to secure a trial court ruling on objections to summary-judgment evidence waives any complaint about the summary-judgment evidence on appeal.” Reynolds v. Hargrave, No. 10-19-00255-CV, 2020 Tex. App. LEXIS 6858, at *9 n.2 (Tex. App.—Waco Aug. 26, 2020)

You have to comply with the pertinent rules:

Evidence: “Because Bishop did not attempt to introduce evidence related to the horse during trial and did not obtain a ruling from the trial court excluding the evidence, Bishop was not entitled to make either an offer of proof or a bill of exception.n. 27 We hold that the trial court did not err in purportedly not allowing Bishop to make a bill of exception. n. 27 Again, the trial court’s ruling on the Commission’s motion in limine was not a final ruling on the evidence related to Bishop’s horse and it preserved nothing for appellate review.” Bishop v. Comm’n for Lawyer Discipline, No. 01-18-01115-CV, 2020 Tex. App. LEXIS 6803, at *36 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020)

Notice (New Trial): “With respect to Rosas’s bare assertion that she did not receive the notice, Rosas failed to preserve error because she did not request a hearing on her motion for new trial. See Tex. R. App. P. 33.1(b); see also Tyhan, Inc. v. Cintas Corp. No. 2, No. 01-18-00027-CV, 2018 Tex. App. LEXIS 8847, 2018 WL 5539419, at *1 (Tex. App.—Houston [1st Dist.] Oct. 30, 2018, no pet.) (mem. op.) (explaining that  if a party seeks a new trial on a ground for which evidence must be heard by trial court, the party must obtain a hearing on its new-trial motion to preserve error). Finally, by failing to request leave to file a late response, Rosas has not preserved error in this regard. See Tex. R. App. P. 33.1(a). Having concluded that each of Rosas’s contentions are either waived or unpreserved, we overrule her first issue.” Rosas v. Vela, No. 13-19-00355-CV, 2020 Tex. App. LEXIS 6883, at *10 (Tex. App.—Corpus Christi Aug. 27, 2020)

And, as always, there were a number of cases holding that parties had failed to preserve their complaints by failing to raise them in the trial court.

You all stay safe and well and enjoy the rest of the weekend.

Yours,

Steve Hayes

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

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