Error Preservation in Texas Civil Cases, August 4, 2018

Dear All:

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

Table of Contents


A pre-emption argument that challenges a trial court’s subject matter jurisdiction can first be raised on appeal:


“On appeal, Mometrix for the first time challenges the trial court’s and this [*4] Court’s subject matter jurisdiction. Mometrix argues that LCR’s claim for tortious interference with contract is preempted by federal copyright law and that federal courts have exclusive jurisdiction over the case as one arising under the Copyright Act. See HN1 17 U.S.C. § 301 (providing that Copyright Act preempts all legal or equitable rights that are equivalent to exclusive rights within scope of Copyright Act); 28 U.S.C. § 1338(a) (providing that federal courts have exclusive jurisdiction over action “arising under” Copyright Act). A preemption argument that implicates subject matter jurisdiction—that is, choice of forum rather than merely choice of law—such as Mometrix’s argument here, may be raised for the first time on appeal.” Mometrix Media, LLC v. LCR Publ’g, LLC, No. 03-17-00570-CV, 2018 Tex. App. LEXIS 5865, at *3-4 (App.—Austin July 31, 2018)

Here, a party preserved its complaint that a trial court improperly excluded evidence:


Evidence: “Appellees argue that Mega did not preserve error. Appellees contend that the trial court did not exclude Exhibit 9 and therefore Mega failed to preserve any issue for our review as to Exhibit 9. Appellees also argue that Mega “failed to present to the trial court [*8] the same theory of admissibility that it is now making on appeal” as to both exhibits. The record does not support appellees’ assertions.

During a pre-trial hearing, the trial court stated that “[i]n regards to Plaintiff’s Exhibit 10 and 11, the Court is going to exclude those because they are discussing, per [Exhibit] 11, this was a settlement agreement.” The defendants’ attorney then asked, “[A]nd you’re also excluding Exhibit No. 9 and 11? Nine is the discussion regarding the numbers. . . . So that needs to be excluded as well.” The court stated, “So Plaintiff’s 1, 10 and 11.” The reference to Exhibit 1 appears to be either a misstatement or a mistranscription, as the record makes clear that the parties and the court were discussing only Exhibits 9, 10, and 11. Mega’s attorney clarified that “Your Honor has excluded Exhibits 9, 10 and 11,” and then requested that the court accept Exhibits 9, 10, and 11 as an offer of proof, which the trial court accepted. Thus, the record shows that the trial court excluded Exhibits 9 and 10. Tex. R. Evid. 103(a).

Stating the grounds for the offer of proof, Mega’s attorney indicated that Exhibits 9 and 10 represented “balances presented to [Mega’s owner Mody] by the [*9] Defendant Trimcos” and “a memorandum signed by Trimcos . . . by which Trimcos recognized that it was a sum further due to Mega in the amount of $75,622.95.” See Tex. R. Evid. 103(c). These arguments align with Mega’s contentions on appeal. See HN1 Tex. R. Evid. 103(a)(2) (to preserve error regarding a ruling excluding evidence, the substance of the evidence must be made known to the trial court by offer or apparent from the context of the questioning).

We conclude that Mega preserved its complaint regarding the exclusion of Exhibits 9 and 10.” Mega Builders, Inc. v. Bell Tech Enters., No. 14-17-00642-CV, 2018 Tex. App. LEXIS 6014, at *7-9 (App.—Houston [14th Dist.] Aug. 2, 2018)

You have to make your complaint in a timely fashion–certainly before the trial court loses plenary power:


Judgment Nunc Pro Tunc: “Lori does not “substantially disagree” with the “fairly simple” record. Nor does she insist that her requested changes were clerical. Rather, she contends that under sections 6.602 and 153.0071 of the Texas Family Code, she has a right to a judgment that conforms to the MSA. Lori has not cited, nor have we found, any authority supporting the proposition that a trial court otherwise retains jurisdiction beyond its plenary power to make substantive changes to its final judgment and correct judicial errors involving the failure to track terms from an MSA. Although Lori may have been entitled to secure rendition of and any substantive correction of and modification to the judgment in her divorce action in accordance with the MSA while the trial court retained jurisdiction, such entitlement expired with the expiration of the trial court’s plenary power.” In re Marriage of Russell, Nos. 14-17-00618-CV, 14-17-00787-CV, 2018 Tex. App. LEXIS 5874, at *15 (App.—Houston [14th Dist.] July 31, 2018) (footnotes omitted)

Arguing in the trial court that one statute precludes the other side’s claims does not preserve a complaint that another statute also precludes those claims:


Texas Citizen’s Participation Act: “Appellate courts do not consider issues that were not raised in the court below, but parties may construct new arguments on appeal in support of issues properly preserved. Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014). In [*55] this case, the Pivot Plaintiffs generally argued to the trial court that the GTS Defendants’ TCPA motion to dismiss should be denied because (1) the Pivot Plaintiffs’ claims were not based on conduct protected by the terms of the TCPA; (2) alternatively, they carried their burden under the TCPA to establish a prima facie case; (3) the GTS Defendants did not meet the time requirements for filing their motion to dismiss set forth in the TCPA; and (4) their claims fell within a statutory exemption under the TCPA. Here, for the first time on appeal, the Pivot Plaintiffs assert that the TCPA does not apply to at least some of their claims because the claims are instead governed exclusively by a different statute, the CNCA. In other words, the Pivot Plaintiffs’ preemption argument is not that a different case or subpart of the TCPA dictates a different outcome, see Starside Custom Builders, 547 S.W.3d at 896, but that some of their claims are governed by a different body of law altogether. See Entergy Gulf States, Inc. v. Public Util. Comm’n, 173 S.W.3d 199, 210 (Tex. App.—Austin 2005, pet. denied) (noting that preemption argument that affects choice of law can be waived) (citing Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 545 (Tex. 1991) (noting that preemption argument that affects choice of forum rather than choice of law is not waivable and can be raised for first time on appeal)). To preserve [*56] their argument that preemption by the CNCA serves as an alternative basis for denying the GTS Defendants’ motion to dismiss, the Pivot Plaintiffs were required to present the argument to the trial court. Because they did not, we will not consider this argument on appeal.” Grant v. Pivot Tech. Sols., No. 03-17-00289-CV, 2018 Tex. App. LEXIS 6076, at *53-56 (App.—Austin Aug. 3, 2018)

You have to comply with the pertinent rules:


Affirmative Defense/Summary Judgment: “To properly preserve an affirmative defense for purposes of appeal of a summary judgment, a defendant must expressly present that affirmative defense to the trial court in the summary judgment proceeding, whether it be through her own motion for summary judgment and/or in a response to the plaintiff’s motion for summary judgment, and adduce proof supporting that defense. TPS Freight Distribs., Inc. v. Tex. Commerce Bank, 788 S.W.2d 456, 459 (Tex. App.—Fort Worth 1990, writ denied) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677-79 (Tex. 1979)). Absent a record demonstrating that the affirmative defense was properly presented to the trial court in the summary judgment proceeding, the appellant has waived her affirmative defense. Id. In this case, Jourdan did not file her own motion for summary judgment on the affirmative defense of limitations, nor did she file a response to Jacobs’s motion for summary judgment. Jourdan argues on [*14] appeal that she filed a verified answer raising the affirmative defense; however, “merely raising such an affirmative defense in an answer to a petition does not preserve that defense on appeal from a summary judgment in favor of the plaintiff.” Id. HN5 “Pleadings, even if sworn to, do not constitute summary judgment proof.” Id. Thus, we hold Jourdan waived her affirmative defense of limitations.” Jourdan v. Jacobs, No. 04-17-00487-CV, 2018 Tex. App. LEXIS 5938, at *13-14 (App.—San Antonio Aug. 1, 2018)

You have to get a ruling on your complaint–and the trial court responding “Great. Thank you.” is not a ruling:


Jury Charge: “In this case, the record shows the trial court did not rule on appellant’s objections, nor did appellant request a ruling—stating only, “Great. Thank You.” And appellant did not specifically object to the trial court’s failure to submit any of his proposed jury questions or instructions. As a result, appellant did not preserve error regarding his proposed jury submissions. See Tex. R. Civ. P. 274; Burbage, 447 S.W.3d at 256; Thota, 366 S.W.3d at 689. We overrule appellant’s issues seven, eight, nine, ten, eleven, twelve, and thirteen.” Mohamed Ahmed v. Hinga Mbogo, No. 05-17-00457-CV, 2018 Tex. App. LEXIS 5849, at *26 (App.—Dallas July 30, 2018)

Several other cases held that a party did not preserve error because that party failed to make the complaint in the trial court.

All for now.  I hope this helps.


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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