August 14, 2021
Dear Friends:
Well, I’m back to a week behind, but I’ll try to catch up this next week. This is for the week ending August 7, 2021.
Table of Contents
A party may first raise a governmental immunity argument on appeal-and such complaints come in many different forms
You must get a ruling, express or implied, on your complaint–and one case shows the power of a ruling which references your complaint, while another discusses several reasons the trial court did not impliedly rule on one party’s complaint
Injunction
Arbitration
Your complaint on appeal must be the same complaint you raised at trial–and seeking an agreed continuance on one ground will not preserve another ground for seeking a continuance
Continuance
Experts
You have to comply with other pertinent rules
Continuance
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Child Support
Venue
Theft Liability Claim
Blurbs
A party may first raise a governmental immunity argument on appeal-and such complaints come in many different forms:
Immunity: “For the first time on appeal, n. 26 the City claims that the STR Ordinance was not the cause in fact of any alleged taking of the Homeowners’ properties because STRs are not a permitted use under the existing Zoning Ordinance. n. 26 We consider this argument even though the City did not raise it in the trial court. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 94-97 (Tex. 2012) (holding defendants may bring—and courts must address—immunity-based jurisdictional challenges that are raised for the first time on appeal, even in the context of an interlocutory appeal); see also Dall. Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013) (“Under Rusk, an appellate court must consider all of a defendant’s immunity arguments, whether the governmental entity raised other jurisdictional arguments in the trial court or none at all.”)” City of Grapevine v. Muns, No. 02-19-00257-CV, 2021 Tex. App. LEXIS 6364, at *29 (Tex. App.—Fort Worth Aug. 5, 2021)
You must get a ruling, express or implied, on your complaint–and one case shows the power of a ruling which references your complaint, while another discusses several reasons the trial court did not impliedly rule on one party’s complaint:
Injunction: “Chang also argues Huang waived his complaints about “the content or scope of the injunction” by failing to raise those complaints in the trial court. However, the trial court’s judgment specifically notes, “[Huang’s] objection to the injunction is overruled.” We conclude this argument is properly preserved. See Tex. R. App. P. 33.1(a) (to preserve complaint for appellant review, the record must show the appellant timely raised the complaint below and the trial court ruled on it).” Huang v. Chang, No. 04-20-00129-CV, 2021 Tex. App. LEXIS 6241, at *16 n.2 (Tex. App.—San Antonio Aug. 4, 2021)
Arbitration: “To preserve a complaint for appellate review, a party must make the complaint to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). Preservation also requires one of three things: (1) an express ruling by the trial court; [*12] (2) an implicit ruling by the trial court; or (3) a refusal to rule by the trial court, coupled with an objection to that refusal by the complaining party. Tex. R. App. P. 33.1(a)(2). There is no express ruling on Father’s motion to compel arbitration in the record, nor is there an objection by Father to the refusal to rule, if any, by the trial court. Thus, Father did not preserve error unless the trial court implicitly denied his motion….
An essential element of an implicit ruling is awareness by the trial court of the request or motion that is supposedly being ruled on….Ordinarily the filing of a motion, without more, does not give rise to an inference that the trial court is aware of the motion or that it must act on the motion….Here, Father does not explain why the trial court should have been aware of Father’s motion or any need to act on a motion filed after judgment was rendered.
On the facts of this case, we conclude that no implied ruling can be inferred. Father did not file his motion to compel arbitration until after the trial court orally rendered default judgment, and the record does not indicate he brought the motion to the attention of the trial court at any time by setting it for submission. Therefore, we conclude that Father did not preserve any error. Tex. R. App. P. 33.1(a)(2).” In the Interest of L.H., No. 14-19-00960-CV, 2021 Tex. App. LEXIS 6203, at *10-13 (Tex. App.—Houston [14th Dist.] Aug. 3, 2021)
Your complaint on appeal must be the same complaint you raised at trial–and seeking an agreed continuance on one ground will not preserve another ground for seeking a continuance:
Continuance: “”[w] hen a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.” Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); ….Mendia has made no effort to identify, either on appeal or to the trial court, any specific evidence she needed to respond to Fiesta Mart’s no-evidence motion. Neither did she move for a continuance of the summary-judgment hearing in the trial court to allow for additional time for discovery. We do not construe the agreed motion for continuance of the trial, which was filed in part to allow the trial court an opportunity to rule on the pending motion for summary judgment, to be sufficient to preserve the issue of adequate time for discovery.” Mendia v. Fiesta Mart, L.L.C., No. 01-19-00018-CV, 2021 Tex. App. LEXIS 6304, at *21-22 (Tex. App.—Houston [1st Dist.] Aug. 5, 2021)
Experts: “In portions of their sole issues, Dr. Morales, West Houston Radiology, and Radiology Partners argue that the trial court erred in overruling their objections to Dr. Paine’s expert reports and in denying their motions to dismiss Sam’s health care liability claims against them because Dr. Paine is not qualified [*74] to offer an opinion on the standard of care related to Dr. Morales and Dr. Paine’s expert reports do not adequately address causation as it relates to Dr. Morales….In the trial court, Dr. Morales, West Houston Radiology, and Radiology Partners timely objected to Dr. Paine’s expert reports and requested that Sam’s health care liability claims against them be dismissed. In doing so, they only objected that Dr. Paine is not qualified to offer an opinion on causation related to Dr. Morales. Dr. Morales, West Houston Radiology, and Radiology Partners did not assert in their objections and motions to dismiss that Dr. Paine is not qualified to offer an opinion on the standard of care related to Dr. Morales or that Dr. Paine’s expert reports do not adequately address causation as it relates to Dr. Morales. Because Dr. Morales, West Houston Radiology, and Radiology Partners did not raise in the trial court their complaints that Dr. Paine is not qualified to offer an opinion on the standard of care and that Dr. Paine’s expert reports do not adequately address causation, we hold that they have not preserved those complaints for our review. See id.; Tex. R. App. P. 33.1(a);” Kuhn v. Sam, No. 01-20-00260-CV, 2021 Tex. App. LEXIS 6196, at *73-75 (Tex. App.—Houston [1st Dist.] Aug. 3, 2021)
You have to comply with other pertinent rules:
Continuance: “Mendia did file an objection and response to Fiesta Mart’s original motion for summary judgment, in which she asserted that she had not been afforded adequate time for discovery. She argues on appeal that these objections may be considered and applied to Fiesta Mart’s [*22] first amended motion for summary judgment. But Mendia’s objection and response, even if applicable to the first amended motion for summary judgment, was neither verified nor included an affidavit setting forth any necessary evidence outstanding….Moreover, as Mendia states in her brief, Fiesta Mart passed on its original summary-judgment hearing to allow for two of its employees to be deposed. Fiesta Mart did not file its amended motion for summary judgment until after those two depositions were conducted.” Mendia v. Fiesta Mart, L.L.C., No. 01-19-00018-CV, 2021 Tex. App. LEXIS 6304, at *21-22 (Tex. App.—Houston [1st Dist.] Aug. 5, 2021)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com