Error Preservation in Texas Civil Cases, August 7, 2019

Dear All:

Here are some of the error preservation decisions from last week.

Table of Contents


The Blurbs

One case held that you can preserve a complaint about receiving insufficient notice of a hearing by raising it in a motion to reinstate:


Notice: “Walsh, citing Texas Rule of Appellate Procedure 33.1(a)(1), asserts White failed to object on the record that she received insufficient notice and, consequently, waived her issue. We disagree. Rule 33.1(a)(1) requires, as a prerequisite to presenting a complaint for appellate review, that the record must show the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). Here, White made a complaint regarding insufficient notice through her motion for reinstatement, which specified as a ground for reinstatement that White received insufficient notice.” White v. Walsh, No. 04-18-00609-CV, 2019 Tex. App. LEXIS 6529, at *4 n.4 (Tex. App.—San Antonio July 31, 2019)

For a bench trial, you can first raise sufficiency complaints on appeal:


Legal and Factual Sufficiency: “Father primarily argues that Mother did not sufficiently prove the reasonableness of her attorney’s fees. Father may raise this insufficiency-of-the-evidence argument for the first time on appeal. See Tex. R. Civ. P. 324(a), (b); Tex. R. App. P. 33.1(d);” In the Interest of K.A.M.S., No. 14-18-00015-CV, 2019 Tex. App. LEXIS 6717, at *25-26 (Tex. App.—Houston [14th Dist.] Aug. 6, 2019)

Legal and Factual Sufficiency: “We begin by addressing the Hancheys’ argument that Cantu did not preserve her legal sufficiency complaint because she failed to request additional findings of fact and conclusions of law. Texas Rule of Appellate Procedure 33 provides that “[i]n a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d). Cantu’s legal sufficiency challenge is, therefore, properly preserved. See id.” Cantu v. Hanchey, No. 04-18-00697-CV, 2019 Tex. App. LEXIS 6539, at *4 (Tex. App.—San Antonio July 31, 2019)

Legal and Factual Sufficiency: “In addition, Father argues Mother did not “offer any evidence to support her claim for an attorney fee award for her Counter-Petition to Modify the Parent Child relationship” and “offered no evidence to prove . . . that the fees sought were reasonable and necessary for the prosecution [*13] of the suit.” HN2 Father may raise this insufficiency-of-the-evidence argument for the first time on appeal. See Tex. R. Civ. P. 324(a), (b); Tex. R. App. P. 33.1(d)” In the Interest of D.Z., No. 14-17-00938-CV, 2019 Tex. App. LEXIS 6466, at *12-13 (Tex. App.—Houston [14th Dist.] July 30, 2019)

You have to get a ruling from the trial court:


Evidence: “During re-direct examination of Attalla, Attalla’s counsel attempted to rebut Hulsey’s assertion that he lacked sufficient coverage:

[Attalla’s counsel]: Do you understand that he has unlimited coverage now because they had the opportunity to settle—

[Hulsey’s counsel]: Objection, Your Honor. They’re—this is—

[Trial Court]: Okay. Never mind. We’ll leave it there. Any other questions about the . . . .

[Attalla’s counsel]: Oh, yes—

[Trial Court]: —unrelated to insurance?

[Attalla’s counsel]: The amount of insurance is not true. It’s unlimited.

[Trial Court]: I understand your argument.

[Attalla’s counsel]: Thank you.

Although Hulsey objected, he did not obtain a ruling from the trial court. See Tex. R. App. P. 33.1(a) (providing that preservation of error requires objection and ruling).” Hulsey v. Attalla, No. 01-18-00180-CV, 2019 Tex. App. LEXIS 6654, at *47 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019)

You have to make a record:


Discovery: “At the December 2, 2016 hearing, the Fishers offered evidence in support of their Motion for Docket Control Order in which they requested new discovery deadlines. As stated, the appellate record does not include the reporter’s record from that hearing. When the record is incomplete, the court of appeals must presume the missing reporter’s record supports the trial judge’s decision. . . . At the March 24 hearing, appellants stated their position that the case should be dismissed unless the Fishers had evidence to show otherwise. The Fishers proposed to offer their evidence again. The trial judge did not require them to, stating he had sufficient information to make a decision. Appellants did not object to the fact that the court did not have the Fishers put on their evidence again in appellants’ presence or otherwise make such a complaint known to the judge. See Tex. R. App. P. 33.1(a).” PS Royal Servs. Grp., LP v. Fisher, No. 05-17-01139-CV, 2019 Tex. App. LEXIS 6744, at *6-7 (Tex. App.—Dallas Aug. 5, 2019)

The complaint you raise on appeal must be the complaint you raised at trial:


Evidence: “Guillermo’s objection to the photos at trial did not challenge them on the basis that they were not originals. He instead objected to them on the basis that they lacked a date-time stamp. Thus, Guillermo did not preserve his best-evidence argument for review. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a);” Puente v. Puente, No. 01-18-00583-CV, 2019 Tex. App. LEXIS 6494, at *11 (Tex. App.—Houston [1st Dist.] July 30, 2019)

There were several cases in which courts held that the complaining party waived a complaint by failing to raise 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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