Error Preservation in Texas Civil Cases, August 8, 2020

August 8, 2020

Dear All:

The courts of appeals continue their steady march to the end of their fiscal year, and we see the normal slight uptick in the number of error preservation opinions.

Table of Contents

When you argue a basis to support your TCPA motion at the hearing on the motion, you have preserved that basis (disclaimer–I argued this case on appeal for the prevailing appellants)

Disclaimer of Reliance

Sometimes, one can claim the trial court impliedly ruled on one’s complaint

Motion to Vacate

You have to get a ruling on your complaint

Arbitration

You have to comply with other pertinent rules

Capacity
Findings
Fraud (Affirmative Defense)
Personal Jurisdiction

The Blurbs

When you argue a basis to support your TCPA motion at the hearing on the motion, you have preserved that basis (disclaimer–I argued this case on appeal for the prevailing appellants):

Disclaimer of Reliance: “Regardless, however, of whether disclaimer of reliance is an affirmative defense, and regardless of whether Appellants’ asserting it in their answer put the issue before the trial court, see Tex. Civ. Prac. & Rem. Code Ann. § 27.006 (requiring trial court to consider pleadings in ruling on TCPA motion), Appellants raised their disclaimer-of-reliance argument at the TCPA hearing. n. 7. When Sutherland objected to the argument, Appellants countered that reliance was an element of a number of Sutherland’s claims and that the disclaimer language was in the sales agreement, which Sutherland had attached to its response as [*26] evidence. Their attorney asserted that they needed to be able to talk about the elements of the claim and the evidence Sutherland had attached to its response. The Supreme Court of Texas has stated that arguing a basis for the TCPA’s applicability at the hearing on a TCPA motion is sufficient to preserve that argument for appellate review, indicating that Appellants’ arguing the issue at the hearing is sufficient to raise the matter in the trial court as a basis for granting the TCPA motion. n. 8 See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018).”  SSCP Mgmt. v. Sutherland/Palumbo, LLC, No. 02-19-00254-CV, 2020 Tex. App. LEXIS 6241, at *25-26 (Tex. App.—Fort Worth Aug. 6, 2020)

N. 7 Sutherland asserts that the trial court “did not expressly consider [the issue of disclaimer of reliance] during the hearing,” but neither did it expressly decline to consider it, despite Sutherland’s objection, and no order states that the trial court had declined to consider it.

N. 8 Appellants also included disclaimer-of-reliance arguments in their reply to Sutherland’s TCPA response. Sutherland argued that the reply was not timely filed and that the trial court should not consider it, and it argues here that the trial court in fact did not consider it. Cf. Mission Wrecker Serv., S.A., Inc. v. Assured Towing, Inc., No. 04-17-00006-CV, 2017 Tex. App. LEXIS 7226, 2017 WL 3270358, at *3 (Tex. App.—San Antonio Aug. 2, 2017, pet. denied) (mem. op.) (noting that TCPA does not contain a deadline for filing a response to a TCPA motion but that the trial court has discretion to determine the timeliness of a response). While the trial court did not strike the reply, its order denying Appellants’ TCPA motion states that the trial court had considered the motion and Sutherland’s response (with no mention of Appellants’ reply) and had “entertain[ed] the arguments of counsel.” Because the disclaimer-of-reliance issue was brought to the trial court’s attention at the hearing, we need not decide whether the trial court should have considered Appellants’ reply.

Sometimes, one can claim the trial court impliedly ruled on one’s complaint:

Motion to Vacate: “As an initial matter, Mother claims that relator waived his complaints as to the trial court’s refusal to hold an evidentiary hearing on his motion to vacate the Order. Mother asserts that, although relator filed his objection to hearing the motion to vacate the Order by submission, [*12] relator did not set his objection prior to the hearing on the motion to vacate or request a ruling from the trial court. We conclude that by proceeding to rule on the motion to vacate the Order by submission after relator asserted his objection to this procedure, the trial court impliedly overruled relators objection and thus relator did not waive his complaints as to the trial court’s refusal to hold an evidentiary hearing on his motion to vacate the Order, and relator satisfied the requirement for a predicate request and a refusal to act.” In re V.K., No. 14-20-00491-CV, 2020 Tex. App. LEXIS 6256, at *11-12 (Tex. App.—Houston [14th Dist.] Aug. 7, 2020)

You have to get a ruling on your complaint:

Arbitration: “Additionally, Heilmann filed his motion to modify and supplemental motion to modify on September 28, 2018, and October 9, 2018, respectively, which was well after the August 30, 2018 final order confirming of the arbitration award. Because Heilmann’s motions to vacate or modify the arbitration awards were not raised or considered before or simultaneously with Jensen’s motion to confirm the arbitration awards, Heilmann waived these complaints, and “absent specific common-law or statutory grounds for vacating, modifying, or correcting an award, the reviewing court must confirm it.” See id. at 268; Tex. Civ. Prac. & Rem. Code Ann. § 171.087.” Heilmann v. Heilmann, No. 04-18-00849-CV, 2020 Tex. App. LEXIS 6143, at *6 (Tex. App.—San Antonio Aug. 5, 2020)

You have to comply with other pertinent rules:

Capacity: “Harrison’s argument is in substance, and at most, a challenge to Reiner’s capacity. Her argument fails because, among other reasons, Reiner, having been appointed the estate’s administrator, was granted the capacity to sue on the estate’s behalf. See Nootsie, 925 S.W.2d at 661. Harrison, however, did not challenge Reiner’s capacity to sue by verified pleading in the trial court pursuant to Texas Rule of Civil Procedure 93, so she cannot raise a capacity challenge for the first time on appeal. Tex. R. App. P. 33.1(a)(1). We can reject Harrison’s arguments [*16] on this ground alone, and we need not address whether Reiner was properly named as “Dependent Administrator” as opposed to “Successor Administrator.” See Vertical N. Am., Inc., 2017 Tex. App. LEXIS 8944, 2017 WL 4197027, at *2 (declining to address capacity argument on appeal because it was not raised in trial court pursuant to Tex. R. Civ. P. 93). Harrison’s arguments do not present a question of standing, and she did not preserve error in the trial court on a challenge to Reiner’s capacity to sue. Her arguments do not implicate the court’s subject-matter jurisdiction. See Nootsie, 925 S.W.2d at 661; Vertical N. Am., 2017 Tex. App. LEXIS 8944, 2017 WL 4197027, at *2. We overrule Harrison’s twenty-fifth and thirty-fifth issues.” Harrison v. Reiner, No. 14-19-00050-CV, 2020 Tex. App. LEXIS 6194, at *15-16 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020)

Findings: “When a party who files a motion to dismiss under the TCPA requests findings of fact from the trial court “on whether suit was filed to deter or prevent the movant from exercising constitutional rights and whether suit was filed for an improper purpose,” the trial court is obliged to do so. Batra v. Covenant Health System, 562 S.W.3d 696, 705 (Tex.App.–Amarillo 2018, pet. denied)(citing Tex.Civ.Prac.&Rem. Code Ann. § 27.007(a)); see also Greer v. Abraham, 489 S.W.3d 440, 443 (Tex. 2016). However, the TCPA does not obligate the trial court to act accordingly when findings of fact are requested by the non-movant. Batra, 562 S.W.3d at 705 (TCPA is silent on trial court’s duty to file findings of fact when requested by the non-movant, and thus imposes no similar duty as that owed to the movant). Here, Appellants, the non-movants, requested Findings of Fact and Conclusions of Law pursuant to Rule 296 on November 13, 2018, which were forwarded to the trial court [*6] two days later. See Tex.R.Civ.P. 296. However, when the trial court did not file the requested findings within thirty days, Appellants failed to file a notice of past due filings, which are required under Rule 297. See Tex.R.Civ.P. 297. In order to preserve an issue regarding the trial court’s findings on appeal, a party must file a past-due reminder with the trial court pursuant to Rule 297. See Ad Villarai, LLC v. Chan II Pak, 519 S.W.3d 132, 137 (Tex. 2017)(citing Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984)). Thus, as our sister court in Amarillo did in Batra, we decline to address whether the trial court should have made findings of fact and conclusions of law as requested by the non-movant under the TCPA because Appellants failed to preserve the issue on appeal. See Batra, 562 S.W.3d at 705. Appellant’s first issue is overruled.” Chambers v. Garay, No. 08-18-00213-CV, 2020 Tex. App. LEXIS 6260, at *5-6 (Tex. App.—El Paso Aug. 7, 2020)

Fraud (Affirmative Defense): “In several issues, including issues nineteen through twenty-three, Harrison complains in a conclusory manner that Reiner and U.S. Specialty engaged in fraud and collusion. She did not raise this defensive theory in the trial court, nor was any evidence introduced or findings secured regarding appellees’ purported fraud or collusion. See Tex. R. Civ. P. 94 (defense of fraud must be affirmatively pleaded); see also Assoc. Tel. Directory Publishers, Inc. v. Five D’s Pub. Co., Inc., 849 S.W.2d 894, 899 (Tex. App.—Austin 1993, no writ) (defensive fraud theory may not be raised for the first time on appeal).” Harrison v. Reiner, No. 14-19-00050-CV, 2020 Tex. App. LEXIS 6194, at *28 (Tex. App.—Houston [14th Dist.] Aug. 6, 2020)

Personal Jurisdiction: “Wray did not file a special appearance [*14] in the trial court, which was the proper motion to contest personal jurisdiction. See Tex. R. Civ. P. 120a(1). Instead, he first filed a motion to dismiss that did not address personal jurisdiction, followed by an answer, a second motion to dismiss for lack of subject-matter jurisdiction, and a supplemental answer. Because Wray did not strictly comply with the due-order-of-pleading requirement, we hold that he entered a general appearance and waived any challenge to personal jurisdiction. See Tex. R. Civ. P. 120a(1); Jones, 496 S.W.3d at 224.” Wray v. Picard, No. 01-19-00188-CV, 2020 Tex. App. LEXIS 6226, at *13-14 (Tex. App.—Houston [1st Dist.] Aug. 6, 2020)

We also saw several cases in which parties failed to raise their complaints in the trial court.

Y’all have a good weekend, and stay safe and well.

Yours, Steve Hayes

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

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