Error Preservation in Texas Civil Cases, December 20, 2019

December 20, 2019

Dear All:

Once again, the courts seemed to have gotten busier as the holidays approach, or perhaps they have just encountered more cases involving error preservation. But some interesting decisions populate this week’s traffic, as the Table of Contents shows–and everyone needs to read the Jury Charge case out of the 14th Court, and the Fourth Court’s opinion distinguishing between whether evidence is conclusory or speculative:

Table of Contents

The complaint you make on appeal must comport with the complaint you make at trial–and one court held that an objection that testimony is speculative is not an objection that it is conclusory.

Constitution
Evidence
Legal Sufficiency

Your complaint must be specific enough

Jury Charge
Constitution

Your complaint must be timely

Evidence
Summary Judgment

The Blurbs

The complaint you make on appeal must comport with the complaint you make at trial–and one court held that an objection that testimony is speculative is not an objection that it is conclusory:

Constitution: “T.B. asserts the trial court abused its discretion in compelling T.B. [*14] to invoke his right not to testify in the presence of the jury because the forced invocation of his Fifth Amendment right not to testify lead the jury to draw speculative, unfounded inferences as to what he would have said. This argument does not comport with the objection made at trial.

After the State rested its case and at the request of both parties, the trial court brought T.B. into the courtroom, outside the presence of the jury, to find out whether he wanted to testify. When asked, T.B. replied, “I am not interested in this circus.” The trial court then asked that the jury be brought into the courtroom and informed T.B.’s attorney and the State that T.B. would be asked in front of the jury if T.B. was going to testify. T.B.’s counsel objected because he believed T.B. had a right not to testify regardless of whether the commitment proceeding was a civil or criminal case.

In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court. Martin v. Cottonwood Creek Constr., LLC, 560 S.W.3d 759, 763 (Tex. App.—Waco 2018, no pet.). Because the complaint argued on appeal does not comport with the objection asserted at trial, T.B.’s fourth issue is not preserved and is overruled. See Tex. R. App. P. 33.1(a).” In the Interest of T.B., No. 10-19-00190-CV, 2019 Tex. App. LEXIS 10966, at *13-14 (Tex. App.—Waco Dec. 18, 2019)

Evidence: “Mother’s contention on appeal is that Father’s valuation testimony is conclusory and, thus, inadmissible. Mother did not, however, raise that objection in the trial court. As to the bulk of Father’s testimony, Mother’s only objection was to the form of the question being asked. As to the Gomez Morin property, Mother’s objection was that the testimony was speculative. HN26 But an objection that testimony is conclusory is not the same as an objection that it is speculative. Conclusory testimony states a conclusion with no basis or explanation. Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019). Speculative testimony is based on guesswork or conjecture. . . .A complaint on appeal that does not comport with the party’s objection at trial is not preserved for review. In re N.T., 335 S.W.3d 660, 670 (Tex. App.—El Paso 2011, no pet.) (citing Knapp v. Wilson N. Jones Mem. Hosp., 281 S.W.3d 163, 171 (Tex. App.—Dallas 2009, no pet.); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)). Mother’s challenge on appeal to the admission of Father’s testimony does not comport with her objections to that testimony [*35] at trial. No error is preserved for review. See In re N.T., 335 S.W.3d at 670.

In addition, preservation of error in the admission of evidence requires a timely objection. Tex. R. App. P. 33.1(a); Biggar v. Palmer, No. 08-01-00468-CV, 2003 Tex. App. LEXIS 8892, 2003 WL 22361068, at *9 (Tex. App.—El Paso Oct. 16, 2003, no pet.). Mother did not object at the time Father gave his opinion concerning the value of the Gomez Morin property. Rather, she lodged her objection to speculation only after another question was posed and after an exchange between counsel concerning Mother’s failure to produce documents concerning the property’s value. Mother’s belated objection preserved nothing for review. See Tex. R. App. P. 33.1(a);” Jardon v. Pfister, No. 08-17-00183-CV, 2019 Tex. App. LEXIS 10918, at *34-35 (Tex. App.—El Paso Dec. 17, 2019)

Legal Sufficiency: “The record reflects that Appellant Mother R.V.’s trial counsel moved for an instructed verdict regarding the sufficiency of her voluntary relinquishment of her parental rights to her daughter Y.M. Her trial counsel, however, made no such motion regarding the jury’s finding that termination of her parental rights was in her son J.A.V., Jr.’s best interest. The complaint brought on appeal must be the same as that presented in the trial court. In re C.Y., 2015 Tex. App. LEXIS 10910, 2015 WL 6394559, at *2 (Tex. App.—Fort Worth 2015, no pet.); see Tex. R. App. P. 33.1. Because Appellant Mother R.V.’s sufficiency complaint about the jury’s best-interest finding regarding her son J.A.V., Jr. was not the same one she made in her motion for instructed verdict, her motion for instructed verdict did not preserve her sufficiency complaint on appeal. See 2015 Tex. App. LEXIS 10910 [WL] at *3.” In the Interest of J.A.V., No. 04-19-00455-CV, 2019 Tex. App. LEXIS 10951, at *2 n.3 (Tex. App.—San Antonio Dec. 18, 2019)

Your complaint must be specific enough:

Jury Charge: “Arguing that Texas law requires a “specific nexus” between the control and the injury-causing activity, Brazos asserts Question No. 1 “grossly misstated the law by instructing the jury that Brazos retained control over the entire job, namely, erection of the steel frame.” Brazos’s argument appears to contend that Question No. 1’s instruction regarding control should have been limited to “the installation of the cross-brace at issue.” Because Brazos did not raise this challenge at the charge conference, this issue is not preserved for our review.

To preserve error in the jury charge, the complaining party must timely and plainly make the trial court aware of the complaint and obtain a ruling. . . .Moreover, to preserve error for appeal, the [*22] complaining party’s argument on appeal must comport with its argument in the trial court. . . .

On appeal, Brazos frames this challenge as an improper comment on the weight of the evidence. In the trial court, Brazos’s improper-comment argument was raised as follows:

With regards to Question No. 1 with the instruction that is included in the Charge as the control we believe is improper instruction superfluous issues to be determined constitute improper [comment] on the weight of the evidence interferes with the service province of the jury, improperly influences the jury to the prejudice of Brazos and there is no evidence or there is insufficient evidence to support any finding of the retention of control over the construction of the steel frame by Brazos.

Therefore, the comment — improperly comments on Texas Law.

This objection does not plainly or distinctly raise the issue Brazos now asserts on appeal — that the instruction included with Question No. 1 lacks a “specific nexus” between the control and the injury-causing activity. Accordingly, Brazos did not preserve this issue for our review. See Tex. R. Civ. P. 274; . . . .

We overrule Brazos’s second sub-issue addressing Question No. 1.” Brazos Contractors Dev., Inc. v. Jefferson, No. 14-17-00977-CV, 2019 Tex. App. LEXIS 11049, at *21-22 (Tex. App.—Houston [14th Dist.] Dec. 19, 2019)

Constitution: “In his second issue, T.B. contends the trial court abused its discretion in not permitting him to question prospective jurors on T.B.’s Fifth Amendment right against self-incrimination because T.B. still had a criminal charge pending.

The State counters that T.B.’s argument under this issue was not preserved because T.B. did not present to the trial court specific and proper questions he wished to ask the panel. See In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011) (“a party can preserve error by asking a specific and proper question, stating the basis on which it sought to ask that question, and obtaining an adverse ruling from the trial court”). We agree with the State.

A person has a Fifth Amendment privilege [*11] not to answer official questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. . . . However, blanket assertions of the privilege in civil cases are not permitted. Browning, 113 S.W.3d at 862 n.10. Instead, the privilege must be asserted on a question-by-question basis. Id.; In re Verbois, 10 S.W.3d 825, 828 (Tex. App.—Waco 2000, orig. proceeding). Further, the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. . . .

Prior to voir dire, T.B. presented the trial court with a proposed jury instruction regarding T.B.’s right to remain silent and informed the court that he “would like to voir dire on that….because [he] believe[d] that is law applicable to the case and…individuals could be challenged for cause that would not be able to follow that instruction.” The requested instruction provides:

You are instructed that though not [] criminal in nature, this proceeding grows from a criminal allegation in which the defendant has a constitutional right to remain silent. The defendant may testify on his own behalf. The defendant may also choose not to testify. The defendant’s decision not to testify cannot [*12] be held against him, and it is not evidence of any kind. You must not speculate, guess or even talk about what the defendant might have said if he had taken the witness stand or why he did not. The presiding juror must immediately stop any juror from mention[ing] the defendant’s decision not to testify.

Even if T.B. made a specific enough request, the proposed instruction, and thus any questions relating to it, was not proper. T.B.’s proposed instruction about which he wished to question the prospective jurors proposed a blanket assertion of his Fifth Amendment not to testify and incorrectly prohibited adverse inferences if T.B. refused to testify.

Accordingly, T.B.’s issue is not preserved for our review. T.B.’s second issue is overruled.” In the Interest of T.B., No. 10-19-00190-CV, 2019 Tex. App. LEXIS 10966, at *10-12 (Tex. App.—Waco Dec. 18, 2019)

Your complaint must be timely:

Evidence: “We conclude that the circumstances here are distinguishable from Marquez on which Mother relies in support of her argument. In Marquez, we noted that the attorney who testified in support [*49] of the award of fees “did not preface his remarks by stating that he was making them as an officer of the court nor did he refer to his argument as testimony, and therefore, it would not have been apparent to opposing counsel that an objection was required.” 57 S.W.3d at 593. Here, in contrast, Minor clearly stated from the beginning of his remarks that he was calling himself as a witness to give testimony. With his opening, Minor placed Mother’s counsel on notice that he intended to give direct testimony in support of Father’s request for an award of fees. See id. Because the record shows that Mother did not lodge her objection until Minor had already travelled well into the substance of his testimony, we find she did not comply with the rule requiring a timely objection to preserve error.See Tex. R. App. P. 33.1;” Jardon v. Pfister, No. 08-17-00183-CV, 2019 Tex. App. LEXIS 10918, at *48-49 (Tex. App.—El Paso Dec. 17, 2019)

Summary Judgment: “More importantly, the Lawyers moved for summary judgment solely asserting attorney immunity. While they mentioned the 2011 APA’s disclaimer language in their reply, they cannot (absent consent) rely on arguments raised for the first time in a summary judgment reply. See 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—Austin 1996, no writ). Instead, a motion for summary judgment must expressly present the grounds upon which it is made.” NFTD, LLC v. Haynes & Boone, LLP, No. 14-17-00999-CV, 2019 Tex. App. LEXIS 10911, at *24 (Tex. App.—Houston [14th Dist.] Dec. 17, 2019)

Then, there was the usual collection of opinions in which parties did not preserve complaints because they did not raise the complaints in the trial courts.

I hope this helps.  Y’all have a great holiday.

Yours, Steve Hayes (shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com)

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