Error Preservation in Texas Civil Cases, December 19, 2020

December 19, 2020

Dear All:

As we close in on the end of the year, I have not one clue as to how many opinions our appellate courts will churn out before the New Year.  But they show no signs of abating their productivity thus far, as our Table of Contents reflects:

Table of Contents

-You must make your complaint in a timely fashion–not too early, not too late

Jury Argument

-If you lose on a TCPA Motion, your opponent may be able to argue that you failed to comply with the TCPA rules, even if they did not so argue in the trial court
-Your complaint at trial must comport with the complaint you raise on appeal

Governmental Immunity (but, query, isn’t governmental immunity a complaint which can first be raised on appeal)?

-You have to comply with the pertinent rules

Evidence

The Blurbs

You must make your complaint in a timely fashion–not too early, not too late:

Jury Argument: “When Inman’s counsel proceeded to argue outside the record, Allen did not object. Objections must be timely. Tex. R. App. P. 33.1(a)(1); see Cantu v. Cantu, 556 S.W.3d 420, 435 (Tex. App.—Houston [14th Dist.] 2018, no pet.). “Appellate complaints of improper jury argument must ordinarily be preserved by timely objection . . . .” Phillips, 288 S.W.3d at 883. c. Late objection After the jury left the courtroom, Allen again complained about Inman’s counsel’s argument. By this point, any objection was too late. See Tex. R. App. P. 33.1(a)(1); Moon v. Spring Creek Apts., 11 S.W.3d 427, 432 (Tex. App.—Texarkana 2000, no pet.).” Allen v. Inman, No. 02-19-00230-CV, 2020 Tex. App. LEXIS 10009, at *12 (Tex. App.—Fort Worth Dec. 17, 2020)

If you lose on a TCPA Motion, your opponent may be able to argue that you failed to comply with the TCPA rules, even if they did not so argue in the trial court:

TCPA Motion: “We agree with Grandparents that if Mother were seeking reversal of the trial court’s ruling [because Grandparents filed their TCPA motion too late], she would have been required to object in the trial court and obtain a ruling, as rule 33.1 and Gonzalez require and explain. See Tex. R. App. P. 33.1(a); Gonzalez, 436 S.W.3d at 874 (TCPA nonmovant sought reversal of trial court’s order dismissing its claims). Here, however, Mother’s argument is that Grandparents did not carry their initial burden to file their TCPA motion timely. n. 5. [n. 5: We note that Grandparents themselves raised the timeliness question in the trial court by filing a motion to dismiss that did not reference the TCPA and was not timely under the TCPA, and explaining to the court that the motion had not been filed within the TCPA’s 60-day deadline.] The TCPA movant bears the burden to file a motion to dismiss “not later than the 60th day after the date of service of the legal action” or to make “a showing of good cause” for extending the deadline. TCPA § 27.003(b). Section 27.003(b) provides that a motion “must” be filed by the deadline, a term the Legislature has defined in the Code Construction Act as “creat[ing] or recogniz[ing] a condition precedent.” Tex. Gov’T Code § 311.016(3). Whether Mother filed a response or not, Grandparents still bore the burden to meet this condition precedent by filing their motion timely. See TCPA § 27.003(b). We conclude that they did not do so.” In the Interest of C.T.H., No. 05-19-01476-CV, 2020 Tex. App. LEXIS 9872, at *10-11 (Tex. App.—Dallas Dec. 15, 2020)

Your complaint at trial must comport with the complaint you raise on appeal:

Governmental Immunity: “Regarding RT General’s fraud claim, the City alleged in its plea to the jurisdiction that RT General “failed to plead a waiver of immunity to support its fraud cause of action. As stated above, the City was engaged in a governmental function, and absent a waiver, is immune from suit. This cause of action should be dismissed.” On appeal, the City argues that it is immune from suit for RT General’s fraud claim because fraud is an intentional tort, and there is no waiver of governmental immunity for intentional-tort claims. To preserve error, the objection made at trial must comport with the issue presented on appeal. . . . As shown above, the argument made by the City [*17] in the trial court does not comport with that made on appeal. Accordingly, we conclude that the City did not preserve this complaint for our review. See Tex. R. App. P. 33.1(a).” City of Cleburne v. RT Gen., LLC, No. 10-20-00037-CV, 2020 Tex. App. LEXIS 9917, at *16-17 (Tex. App.—Waco Dec. 16, 2020) But Query: Is governmental immunity a complaint which one can first raise on appeal? See Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (in dicta, as to governmental immunity: “The doctrine of standing, just like governmental immunity, goes to whether or not a court has subject matter jurisdiction to decide a case.”)

You have to comply with the pertinent rules:

Evidence: “Delacruz also failed to make an offer of proof that would inform this Court of the substance of Dr. Gaines’s testimony on this topic so as to show error requiring reversal. See Tex. R. Evid. 103(a); Melendez v. Exxon Corp., 998 S.W.2d 266, 278 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“If the trial court sustains an objection and rules the evidence inadmissible, an appellant must preserve error by making a record, through a bill of exceptions, of the precise evidence the party desires admitted.”).” In re Delacruz, No. 03-19-00420-CV, 2020 Tex. App. LEXIS 9906, at *26 n.3 (Tex. App.—Austin Dec. 16, 2020)

Jury Charge: “First, to complain of a trial court’s omission of a requested instruction, a party must have submitted a “written request to the trial court for a substantially correct instruction.” Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 25 (Tex. App.—Houston [1st Dist.] 1996, writ denied); see Tex. R. Civ. P. 278. Here, the record reflects that, although Spradley orally requested at trial that the jury be instructed regarding awarding fees for the work of legal assistants, the trial court then instructed him to submit “specifically what instruction [he] would want and how [he] want[ed] it.” Spradley’s written proposed charge to the trial court, however, does not include an instruction on fees for legal assistants. Because Spradley does not direct us to any point in the record in which he submitted a “written request to the trial court [*19] for a substantially correct instruction” pertaining to such fees, we conclude that error, if any, is not preserved. See Jarrin, 929 S.W.2d at 25.” Spradley v. Orsak, No. 01-19-00186-CV, 2020 Tex. App. LEXIS 9849, at *18-19 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020)

All for now, buckaroos.  For those of you who celebrate Christmas, have a very merry one, and to all, remain safe and healthy.

Yours, Steve Hayes

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

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