December 27, 2021
I hope everyone has had a splendid holiday season, and anticipates the Best New Year ever. I’ve not reported in a few weeks because there were few error preservation cases, other than ones in which people had not raised their complaints at all in the trial court.
Table of Contents
You can fail to preserve the affirmative defense of waiver by failing to plead it as an affirmative defense
You have to comply with the pertinent rules
I’m not sure this is error preservation, since TRAP 33.1 speaks about “presenting a complaint for judicial review,” but if you have a healthcare liability claim, you may not be able to rely on allegations in an amended complaint you file after the trial court rules on the defendant’s motion to dismiss
Your complaint on appeal must be the complaint you made at trial
While I won’t profile them here, opinions for the last few weeks reaffirmed that you must make complaint about the following in the trial court
You can fail to preserve the affirmative defense of waiver by failing to plead it as an affirmative defense:
Waiver: “Under Rule 94, waiver is an affirmative defense that must be specifically pleaded. Tex. R. Civ. P. 94. Thus, if a party fails to plead and allege the affirmative defense of waiver, that party is precluded from relying on or asserting the waiver defense at trial….In this case, the State did not file any pleadings in response to Appellant’s petition for expunction. As such, the State failed to properly raise the affirmative defense of waiver prior to the commencement of the expunction hearing. Despite its failure to plead or assert the affirmative defense of waiver in advance of the hearing, as a defense to Appellant’s expunction request the State nonetheless presented evidence, which the trial court admitted, that Appellant had allegedly waived her entitlement to an expunction. In fact, over the objections asserted by Appellant’s trial counsel, the trial court permitted the State to question Appellant about the substance of the plea agreement in which she purportedly waived her [*6] right to seek and obtain an expunction of the charged offense and other related matters.
In light of the State’s failure to comply with the pleading requirements of Rule 94, it was prohibited from relying on or asserting a waiver defense at trial. Therefore, the trial court should have neither admitted nor considered the evidence presented by the State in support of this defense. Because it did in both respects, we hold that the trial court abused its discretion when it (1) permitted the State to develop an unpleaded and unasserted waiver defense to Appellant’s expunction request and (2) admitted the evidence offered by the State on that issue.” In re Expunction of A.L., No. 11-20-00048-CV, 2021 Tex. App. LEXIS 9907, at *5-6 (Tex. App.—Eastland Dec. 16, 2021)
You have to comply with the pertinent rules:
Evidence: “To preserve a complaint for appellate review, the record must first show that the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a). And when a party complains about the exclusion of evidence, he must inform the court of the evidence’s substance by an offer of proof. See Tex. R. Evid. 103(a)(2). Jacquot did not object to the trial court’s decision to exclude his testimony, nor did he make an offer of proof concerning the substance of his testimony. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(2);” Jacquot v. Coker, No. 14-20-00123-CV, 2021 Tex. App. LEXIS 10017, at *25 (Tex. App.—Houston [14th Dist.] Dec. 21, 2021)
Witnesses: “In his fourth issue, Jacquot contends the trial court violated his constitutional due process right by excluding his wife, Dolores, from the courtroom and placing her under the Rule.10 In civil cases, a party’s spouse is exempt from the Rule. See Tex. R. Civ. P. 267(b).
Again, to preserve a complaint for appellate review, the record must show that the complaint was made in the trial court. See Tex. R. App. P. 33.1(a). Jacquot did not raise this complaint in the trial court. For example, once the witnesses including Dolores were sworn and instructed under the Rule, Jacquot did not notify the trial court that he was married or that one of the witnesses excluded from the courtroom was in fact his spouse and therefore should remain present. Dolores left the courtroom without any objection. Thus, Jacquot failed to preserve this complaint for our review. See Tex. R. App. P. 33.1(a);” Jacquot v. Coker, No. 14-20-00123-CV, 2021 Tex. App. LEXIS 10017, at *27 (Tex. App.—Houston [14th Dist.] Dec. 21, 2021)
I’m not sure this is error preservation, since TRAP 33.1 speaks about “presenting a complaint for judicial review,” but if you have a healthcare liability claim, you may not be able to rely on allegations in an amended complaint you file after the trial court rules on the defendant’s motion to dismiss:
Pleading: “While we offer no opinion on the propriety of considering allegations in an amended pleading before a motion to dismiss has been ruled upon, we find it improper for a health care liability plaintiff to be able to rely on allegations in an amended pleading filed after a defendant’s motion to dismiss is denied as the basis for upholding denial of said motion on appeal. The trial court lacked the opportunity to examine the allegations made in Appellees’ second amended petition in issuing its ruling on Appellant’s motion to dismiss; accordingly, on appeal, Appellees are limited to the record relied upon by the trial court in issuing its ruling on Appellant’s motion. See TEX.R.APP.P. 33.1, 33.2; see also Kreit v. Brewer & Pritchard, P.C., 530 S.W.3d 231, 239-40 (Tex.App.—Houston [14th Dist.] 2017, pet. denied)(where court of appeals refused to take judicial notice of document not made a part of the record before the trial court). Accordingly, we consider only the allegations made in [*11] Appellees’ first amended petition in determining whether Appellees’ pleading alleged vicarious liability against Appellant for the actions of Dr. Flores, and whether Appellees’ expert report adequately addresses the liability alleged against Appellant.” El Paso Sw. Cardiovascular Assocs., P.A. v. Crane, No. 08-20-00090-CV, 2021 Tex. App. LEXIS 9993, at *10-11 (Tex. App.—El Paso Dec. 17, 2021)
Your complaint on appeal must be the complaint you made at trial:
Evidence: “Patriot’s and Travelers’ trial counsel then interposed an objection “to th[e]se kinds of questions” on the ground that the information they sought was irrelevant….In their appellant’s brief, Patriot and Travelers argue that they are entitled to reversal because this line of questioning of Friedman by Kancor’s trial counsel improperly influenced the jury and was “highly prejudicial.” But Patriot’s and Travelers’ objection at trial does not comport with their complaint [*43] on appeal. Compare Tex. R. Evid. 402 (irrelevant evidence inadmissible), with Tex. R. Evid. 403 (relevant evidence may be inadmissible if “probative value is substantially outweighed by a danger of . . . unfair prejudice” or “misleading the jury”)…. To preserve its improper-jury-argument complaint for appeal, Patriot and Travelers were required to interpose the same objection in the trial court that they raise here. See Tex. R. App. P. 33.1(a);…Because Patriot’s and Travelers’ appellate complaint does not comport with the objection they raised to Kancor’s counsel’s cross-examination of Friedman at trial, we hold that their complaint has not been preserved for our review. N. 26 See Tex. R. App. P. 33.1(a). N. 26. We also note that Patriot and Travelers failed to ask the trial court to instruct the jury to disregard the purportedly objectionable argument made by Kancor’s trial counsel. See Jones v. Rep. Waste Servs. of Tex., Ltd., 236 S.W.3d 390, 402 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). And, even if allowing that particular line of questioning by Kancor’s counsel could not have been cured by instruction, as Patriot and Travelers assert, they were required to preserve the issue by raising it in their motion for new trial, which they likewise failed to do. See Tex. R. Civ. P. 324(b)(5); Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). For these reasons, Patriot and Travelers also did not preserve their improper-jury-argument complaint for appellate review. See Tex. R. App. P. 33.1(a).” Patriot Contracting v. Shelter Prods., No. 01-19-00971-CV, 2021 Tex. App. LEXIS 10099, at *42-43 (Tex. App.—Houston [1st Dist.] Dec. 23, 2021)
Evidence: “To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the request’s, objection’s, or motion’s context. Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). Mother’s basic relevance objection did not present the trial court with a Rule 404(b) extraneous-offense argument or a Rule 403 argument; she has therefore failed to preserve either. See O’Dell v. Wright, 320 S.W.3d 505, 512 (Tex. App.—Fort Worth 2010, pet. denied), abrogated on other grounds, Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 151 n.6 (Tex. 2015). For instance, a relevancy objection argues that the evidence has no tendency to make a determinative fact more or less probable; a Rule 403 objection implicitly admits [*9] that the evidence does have such a tendency but urges it is substantially outweighed by certain dangers, including the risk of unfair prejudice. See Tex. R. Evid. 401, 403. Mother argued at trial that the photos were irrelevant, not that their probative value was substantially outweighed by the risk of unfair prejudice or that they were improper character evidence. She therefore did not preserve those arguments.” In the Int. of P.W., No. 02-21-00219-CV, 2021 Tex. App. LEXIS 10132, at *8-9 (Tex. App.—Fort Worth Dec. 23, 2021)
Evidence: “Alternatively, Mother argues that the trial court erred because the photos were not properly authenticated, but Mother also failed to preserve this argument. Mother’s objection at trial was to “the timing of the particular photo” within the context of her objection to relevance. She did not object on the basis of authentication, and her objection did not suggest her intent to challenge the photos’ authenticity. See Manalan v. State, No. 14-17-00088-CR, 2019 Tex. App. LEXIS 1383, 2019 WL 922287, at *4 (Tex. App.—Houston [14th Dist.] Feb. 26, 2019, pet. ref’d). She therefore waived her argument for purposes of appeal. Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1).” In the Int. of P.W., No. 02-21-00219-CV, 2021 Tex. App. LEXIS 10132, at *10 (Tex. App.—Fort Worth Dec. 23, 2021)
All for now. Y’all stay safe and well and keep on keeping on.
Yours, Steve Hayes