Error Preservation in Texas Civil Cases, December 26, 2020

December 26, 2020

Dear Friends:

I hope everyone has had a safe, healthy, and happy holiday thus far, and that you anticipate more of the same in your future.

Table of Contents

You can raise standing for the first time on appeal–and the trial court can consider standing at any point in the proceedings

You must make your complaint in a timely fashion–thought as this lengthy blurb reveals, one’s affirmative defenses are not necessarily untimely just because they were not raised until after one’s TCPA motion was denied and the denial appealed

You have to comply with the pertinent rules

Jury Charge

The Blurbs

You can raise standing for the first time on appeal–and the trial court can consider standing at any point in the proceedings:

Standing: “ Nothing in Novak bars a trial court from considering whether a plaintiff has standing to bring suit at any stage of a proceeding. In fact, “[a] court can—and if in doubt, must—raise standing on its own at any time.” Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018) (emphasis added). And a party may challenge its opponent’s standing at any stage of a proceeding. See Tex. Ass’n of Bus., 852 S.W.2d at 443-46 (declaring standing is never presumed, cannot be waived, and may be raised for first time on appeal). Thus, we conclude that the trial court did not err in considering whether appellants lack standing to bring claims against USAA at the time that it did so below.” Allen v. United Servs. Auto. Ass’n, No. 01-20-00305-CV, 2020 Tex. App. LEXIS 10131, at *13 (Tex. App.—Houston [1st Dist.] Dec. 22, 2020)

You must make your complaint in a timely fashion–thought as this lengthy blurb reveals, one’s affirmative defenses are not necessarily untimely just because they were not raised until fter one’s TCPA motion was denied and the denial appealed:

Affirmative Defenses(TCPA): “In their first argument under this issue, appellants assert that the appellees waived any claim to res judicata, collateral estoppel, and compulsory counterclaim because they filed a general denial and motion to dismiss under the TCPA before they pleaded these affirmative defenses. As the record reflects, [*9] appellees filed a general denial in response to appellants’ petition in this lawsuit, in which they did not raise the affirmative defenses of res judicata, collateral estoppel, or compulsory counterclaim. On October 16, 2017, the same day appellees’ answer was filed, appellees filed their motion to dismiss under the TCPA. On appeal, appellants claim that appellees “waived their right to claim compulsory counterclaim as Appellees filed a TCPA action to try and dismiss all claims for all Defendants,” which we construe as a challenge to the timeliness of appellees’ pleadings raising their affirmative defenses.

An affirmative defense that is not timely pleaded is waived. See Caston v. Wiley, No. 14-14-01001-CV, 2016 Tex. App. LEXIS 5806, at *14 (Tex. App.—Houston [14th Dist.] June 2, 2016, no pet.) (mem. op.) (limitations defense waived when raised for first time on appeal); Allright, Inc. v. O’Neal, 596 S.W.2d 208, 209 (Tex. App.—Houston [14th Dist.] 1980, writ dism’d) (limitations defense waived when party went to trial on pleadings not containing any such plea and plea was raised in trial amendment after close of all testimony).

In this case, the trial court denied appellees’ TCPA motion to dismiss and appellees timely appealed that decision on November 17, 2017. Proceedings in the lawsuit were then stayed pending resolution of the TCPA appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (West Supp. 2020). The stay ended on September 5, 2018, [*10] when the Second Court of Appeals issued mandate on the TCPA appeal.3Link to the text of the note On September 12, 2018, appellees moved to abate the case on the basis that many of the facts and claims involved were then being litigated in the 17th District Court case. Then, on December 7, 2018, appellees added the aforementioned affirmative defenses to their second amended answer.

Thus, the case had been on file for less than two months when the stay was instituted during the TCPA appeal. Roughly three months after that stay was lifted, appellees raised their affirmative defenses in their written pleadings. At that point, the case was relatively young; little or no discovery had taken place, no motions for summary judgment had been filed, and trial was many months away.

Texas Rule of Civil Procedure 63 allows amendments of pleadings to be filed without leave of court “at such time as not to operate as a surprise to the opposite party” or with leave of court if within seven days before the date of trial. TEX. R. CIV. P. 63. Appellants have not shown, nor have they claimed, that appellees’ amended answer operated as a surprise. Moreover, appellants have not cited any authority for the proposition that a defendant cannot amend his answer after he files a TCPA [*11] motion to dismiss. Finally, appellants have not pointed us to any place in the record indicating that they objected to the amended pleading.

We thus conclude that appellees properly and timely pleaded their affirmative defenses. We overrule appellants’ second issue as to the waiver argument.” J. Michael Ferguson, PC v. Ghrist, No. 07-20-00027-CV, 2020 Tex. App. LEXIS 10098, at *8 (Tex. App.—Amarillo Dec. 21, 2020)

Hearing (pre-Covid): “Gonzalez first argues the trial court’s June 4, 2019 order violates article V, section 7, of the Texas Constitution and is void because Judge Medary conducted the hearing that resulted [*42] in the order by telephone from her courtroom in Corpus Christi [instead of in the statutory county court where the underlying case was pending-a court to which Art. V, sec. 7 does not apply, while Tex. Gov’t Code Sec. 75.059 gives an active district judge like Judge Medary, who was assigned to conduct, the hearing, the powers and duties to hear the case]. . . . By virtue of her assignment, Judge Medary had jurisdiction over the suit. The reporter’s record reflects the hearing was called in the courtroom of the Webb County Court at Law No. 2, counsel for Deputy Trevino appeared in person, and both Gonzalez and an [*43] Assistant Attorney General appeared by telephone. The hearing was not a trial on the merits. Judge Medary announced that she was conducting the hearing by telephone from her courtroom in Corpus Christi. Gonzalez did not object. . . . Gonzalez asserts in his brief that he ‘properly objected.’ However, the objection he cites to was made earlier in the proceeding, before Judge Medary disclosed she was in Corpus Christi. Gonzalez objected ‘to these proceedings,’ specifically that his witnesses were not present and to the proceedings being closed and not being held in open court. Deputy Trevino’s counsel stated for the record that he was in the courtroom with the doors open and that Mrs. Gonzalez and a child were present. Gonzalez then asked the judge where she was located. She responded, ‘I am in Corpus Christi, I am in my courtroom at this time. I am on a speaker phone with everybody, including yourself. The case itself is being heard in an open courtroom in another jurisdiction from me.’ Gonzalez did not object at that time or at any time later in the hearing to Judge Medary not being physically present in Laredo. See Tex. R. App. P. 33.1(a) (requiring preservation of a complaint in the trial court through timely request, objection, or motion stating specific grounds for ruling sought).” In re M.A.G., No. 04-18-00833-CV, 2020 Tex. App. LEXIS 10181, at *43 n.13 (Tex. App.-San Antonio Dec. 23, 2020)

You have to comply with the pertinent rules:

Jury Charge: “To the extent that it can be argued that William and Linda’s limitations complaint was preserved by raising it in their various post-judgment motions, we emphasize that Texas Rule of Civil Procedure 279 states the following: “Upon appeal all independent grounds [*9] of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.” TEX. R. CIV. P. 279. In this case, William and Linda did not request a jury submission regarding the affirmative defense of statute of limitations. Accordingly, we cannot conclude that William and Linda properly preserved their complaint about the statute of limitations through the raising of the complaint in various post-judgment motions. See id.” Kovar v. Seay, No. 10-19-00273-CV, 2020 Tex. App. LEXIS 10173, at *8-9 (Tex. App.—Waco Dec. 22, 2020)

All for now.  Stay safe, healthy, and happy.

Yours, Steve Hayes; 817/371-8759;


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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