Error Preservation in Texas Civil Cases, December 12, 2020

December 12, 2020

Dear All:
Here are a few error preservation rulings for your consideration, from this last week.

Table of Contents

If the parties and the trial court treat a motion in limine as if it was a motion to exclude the evidence, this case holds that the ruling on the motion preserves error as to the trial court’s exclusion of the evidence

Here is a case which tells us that as long as you object to the new stuff in amended expert reports as and when they are filed, you’ve preserved your objection

Expert Report

You have to comply with the pertinent rules

Affirmative Defenses
Avoidance (Pleading)

You might want to compare the following holding to the Supreme Court’s holding in B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256 (Tex. 2020). And, if it was me, I would make sure to get a ruling to my objection to a late-filed MSJ response, and have the MSJ Order reflect that ruling, and that the trial court did not consider the response. Belts and suspenders, maybe, but I hate it when my pants fall down

Objection as to Late Filed MSJ Response

You have to obtain a ruling on your objections

Evidence and Evidentiary Hearing

The Blurbs

If the parties and the trial court treat a motion in limine as if it was a motion to exclude the evidence, this case holds that the ruling on the motion preserves error as to the trial court’s exclusion of the evidence:

Evidence: “Guerrero is correct that the record does not explicitly show that Peña offered or the trial court excluded the evidence in question. Instead, the record shows the trial court granted Guerrero’s motion in limine on that evidence. Generally, a ruling on a motion in limine does not admit or exclude evidence or preserve error for appeal. Westview Drive Invs., LLC v. Landmark Am. Ins. Co., 522 S.W.3d 583, 600 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). A limine ruling “is merely a tentative ruling that prohibits a party from asking a certain question or offering certain evidence in front of the jury without first approaching the bench for a ruling.” Fort Worth Hotel Ltd. P’ship v. Enserch Corp., 977 S.W.2d 746, 757 (Tex. App.—Fort Worth 1998, no pet.). Peña argues, however, that her evidentiary complaint is preserved for our review under these circumstances because the record shows “[e]veryone at trial—Mr. Guerrero, Ms. Peña, and the trial court—believed that the evidence was excluded.”

We agree. We have previously held that a limine ruling preserved an evidentiary complaint where the record showed [*23] the parties and the court treated that ruling as evidentiary. See Torrez v. Sanders, 163 S.W.3d 133, 134 n.1 (Tex. App.—San Antonio 2005, no pet.). Here, when Peña stated she wanted to make an offer of proof consisting of “some evidence that we believe the Court has excluded wrongly,” the trial court appeared to treat its ruling as evidentiary. For example, when Guerrero asked if he should respond to Peña’s offer of proof, the court answered, “No, because I’ve already ruled.” Under these unique circumstances, we hold Peña did not waive her evidentiary complaint. See id.” Peña v. Guerrero, No. 04-19-00874-CV, 2020 Tex. App. LEXIS 9565, at *22-23 (Tex. App.—San Antonio Dec. 9, 2020)

Here is a case which tells us that as long as you object to the new stuff in amended expert reports as and when they are filed, you’ve preserved your objection:

Expert Report: “Appellees argue that many of Baker’s arguments are either waived or unpreserved because they were not raised in Baker’s objection to Dr. Cardwell’s initial expert report but were raised for the first time in objections to the supplemental reports or on appeal. We disagree. With each successive supplemental expert report, Dr. Cardwell’s opinions concerning the standard of care, breach, and causation were further developed and articulated. As a result, Baker filed additional objections to each supplemental report. These objections were timely made as they were filed within twenty-one days of the date the supplemental reports were served. See Tex. Civ. Prac. & Rem. Code Ann § 74.351(a); . . . .” Baker v. Chapa, No. 13-18-00667-CV, 2020 Tex. App. LEXIS 9629, at *7 n.4 (Tex. App.—Corpus Christi Dec. 10, 2020)

You have to comply with the pertinent rules:

Affirmative Defenses: “ Equitable estoppel is an affirmative defense that is waived if it is not pleaded. See Tex. R. Civ. P. 94; In re S.A.P., 156 S.W.3d 574, 576 (Tex. 2005). Here, Deloney failed to plead equitable estoppel in her amended petition. For that reason alone, she waived her equitable estoppel defense.” Deloney v. Koscelnik, No. 02-19-00433-CV, 2020 Tex. App. LEXIS 9672, at *12 (Tex. App.—Fort Worth Dec. 10, 2020)

Affirmative Defenses: “Enterprise argues that Trafigura did not have the legal capacity to sue on behalf of Steamship Mutual. Trafigura argues that Enterprise waived its capacity argument because its pleading challenging Trafigura’s lack of capacity was not verified by an affidavit as required by Rule 93(2) of the Texas Rules of Civil Procedure. Tex. R. Civ. P. 93(2).

Enterprise admits that it did not timely file a verified denial. Indeed, Enterprise asserts that the verified denial was filed after the court had already denied its plea to the jurisdiction. Enterprise concedes that it “originally had no basis to file a verified denial of Trafigura’s claim of capacity . . . .” Because Enterprise failed to challenge Trafigura’s capacity to sue in a verified pleading, we hold that Enterprise’s issue is waived. . . .

Having determined that Trafigura had standing to sue and that Enterprise waived its challenge to Trafigura’s capacity to sue, we hold that the trial court did not err by denying Enterprise’s plea to the jurisdiction.” Enter. Prods. Operating, LLC v. Trafigura AG, No. 01-19-00309-CV, 2020 Tex. App. LEXIS 9552, at *14 (Tex. App.—Houston [1st Dist.] Dec. 8, 2020)

Avoidance (Pleading): “In her brief, Nadine questions the “validity” of the handwritten will. She suggests that Vivian and Howard unduly influenced Mr. Coleman, not only to write the handwritten will, but also to execute the two formal wills prepared by Iverson. However, Nadine did not plead in the probate court that Mr. Coleman was unduly influenced nor was the issue tried by consent. Cf. Tex. R. Civ. P. 94 (requiring pleadings to affirmatively set forth every “matter constituting an avoidance or affirmative defense”); . . . . Moreover, Nadine cites no evidence in the record that supports a finding that Mr. Coleman was unduly influenced to execute his handwritten or formal wills.” Odom v. Coleman, No. 01-19-00669-CV, 2020 Tex. App. LEXIS 9551, at *37 (Tex. App.—Houston [1st Dist.] Dec. 8, 2020)

You might want to compare the following holding to the Supreme Court’s holding in B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256 (Tex. 2020). And, if it was me, I would make sure to get a ruling to my objection to a late-filed MSJ response, and have the MSJ Order reflect that ruling, and that the trial court did not consider the response. Belts and suspenders, maybe, but I hate it when my pants fall down:

Objection as to Late Filed MSJ Response: “As to Deloney’s additional argument that the trial court’s failure to rule on the Koscelniks’ objection waived any objection to the late-filed response, this argument would turn Rule 166a(c) on its head. The objection was not necessary in the first place. It was Deloney’s burden to obtain leave from the trial court to file her untimely response, not the Koscelniks’ burden to raise an objection. See Tex. R. Civ. P. 166a(c); INA of Tex., 686 S.W.2d at 615. And as to Deloney’s argument that the trial court’s order granting summary judgment suggests that the trial court considered her late-filed response, again, the judgment suggests just the opposite. Specifically, Deloney points to the recitation in the judgment that the court considered “the pleadings, the motion, the evidence on file, and arguments of the parties.” We disagree that the recitation supports her position. First, Deloney’s response fell within none of the four categories identified in the order—it was not a pleading, a motion, evidence, or argument. It was a response. See Tex. R. Civ. P. 166a(c) (providing that leave of court is required to file “opposing affidavits or other written response” no later than seven days prior to the summary judgment hearing date) (emphasis added). Thus, under a plain reading of the order, there is no suggestion that Deloney’s response was considered. Second, the omission of “response” from the list of documents that the trial court specified it considered is a significant indicator that the trial court did not consider the response. Because at the time the trial court signed the order, the trial court was fully aware that Deloney had filed an untimely response, its exclusion from the list of documents considered signals that the trial court deliberately did not consider it in the decision-making process. Accordingly, we will not consider Deloney’s amended response, or the unsworn documents attached to it, as part of the summary judgment record.” Deloney v. Koscelnik, No. 02-19-00433-CV, 2020 Tex. App. LEXIS 9672, at *8-9 (Tex. App.—Fort Worth Dec. 10, 2020)

You have to obtain a ruling on your objections:

Evidence and Evidentiary Hearing: “Moody Jr. argues on appeal that the trial court erred by failing to hold an evidentiary hearing on the defendants’ application for attorney’s fees. He also challenges the text messages that were attached to the pleas to the jurisdiction as being unauthenticated. “Generally, to preserve a complaint for appellate review: (1) a party must complain to the trial court by a timely request, objection, or motion; and (2) the trial court must rule or refuse to rule on the request, objection, or motion.” Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012) (citing Tex. R. App. P. 33.1(a)). Moody Jr. did not get a ruling on any request for a trial or evidentiary objection. Therefore, those complaints are not preserved for appellate review. See id.” Moody v. Nat’l W. Life Ins. Co., No. 01-18-01106-CV, 2020 Tex. App. LEXIS 9649, at *41 (Tex. App.—Houston [1st Dist.] Dec. 10, 2020)

Evidence: “The defendants’ attorneys’ affidavits specifically stated that the contemporaneous invoices reflect the amount of time and fees that were reasonably necessary to represent the defendants. The detailed contemporaneous billing invoices showed that the legal work was conducted to investigate and defend Moody Jr.’s suit. To the extent that Moody Jr. now attempts to object to the affidavits, such objection is waived by his failure to obtain a ruling from the court. See Mansions in the Forest, 365 S.W.3d at 317; Tex. R. App. P. 33.1.” Moody v. Nat’l W. Life Ins. Co., No. 01-18-01106-CV, 2020 Tex. App. LEXIS 9649, at *47 (Tex. App.—Houston [1st Dist.] Dec. 10, 2020)

All for now.  Y’all have a great weekend.

Yours, Steve Hayes

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

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