Error Preservation in Texas Civil Cases, December 5, 2020

December 5, 2020

Dear All:

Echoing the late Hunter S. Thompson, well, yes, and here we go again.  But it is a gorgeous day.

Table of Contents

We have to object to the failure of a court to grant a jury trial

A party preserved its complaint as to the jury charge

You can first raise a complaint on appeal about an affidavit’s substantive defects

You have to make the trial court aware of your request–taking contradictory positions may not do that

Jury Charge

The Blurbs

Here is a case which reminds us that we have to object to the failure of a court to grant a jury trial:

Jury Trial: “C. Third Issue: Were the Children deprived of their right to a jury trial? No, because they did not timely object to proceeding before the trial court.

Before the September 17th hearing, the Children filed two jury demands; one on the modification issue and another on the removal issue. Both demands relied on Tex. Est. Code § 55.002, which provides:

In a contested probate or mental illness proceeding in probate court, a party is entitled to a jury trial as in other civil proceedings.

The Children argue that the trial court abused its discretion and violated their open courts, due process, and jury trial rights by conducting the September [*11] 17th modification hearing without a jury. Suzann responds that there was no error because the hearing was not a probate or mental illness proceeding as contemplated by the statute.

But we need not decide this issue because, even if the trial court erred, the issue was not preserved for our review. See TEX. R. APP. P. 33.1. Specifically, the right to a jury trial “is inviolate and one of the greatest rights guaranteed by out Texas and United States Constitutions.” Grocers Supply, Inc. v. Cabello, 390 S.W.3d 707 728-29 (Tex. App.—Dallas 2012, no pet.). But the right is not self-executing, and even after the right is properly invoked, a party must act affirmatively to preserve a complaint concerning the right’s denial. See Sunwest Reliance Acquisitions Grp., Inc. v. Provident Nat. Assur. Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ).

Thus, to preserve error, a party who has properly perfected its jury trial right must either object on the record if the trial court proceeds without a jury or otherwise affirmatively indicate that it intends to stand on its perfected jury trial right. See Skleton v. Auction Prop. Fund I, LLC, No. 05-14-00813-CV, 2015 WL 3898242, at *1 (Tex. App. —Dallas June 25, 2015, no pet.) (mem. op.) (citations omitted). Failure to do so waives the right to complain about the error on appeal. See Grocers Supply, 390 S.W.3d at 729-30.

Here, the Children participated in the modification hearing without objecting or otherwise indicating that they planned to stand on their jury demands. Indeed, the only [*12] jury demand mention occurred at the hearing’s conclusion—after evidence was admitted and all witnesses testified and then only pertained to the jury demand on the trustee removal issue when the Children’s counsel told the court:

Okay. There’s two matters theoretically before the Court: Modification of the Trust and removal of them as Trustee. I tendered to the Court our jury demand for removal of the Trustee. The El Paso Court of Appeals was held that the Court must give us a jury trial on any question of fact. As far as modification goes, it would be ludicrous to suggest to the Court that you couldn’t judicially modify the Trust. However, the Trust Code, the restatement of third says you can only do so in very, very, very limited circumstances.
. . . .
Under these circumstances, we conclude that the issue concerning the right to a jury trial on modification was not preserved, and we resolve the Children’s third issue against them.” In re Ruff Mgmt. Tr., No. 05-19-01505-CV, 2020 Tex. App. LEXIS 9467, at *10-12 (Tex. App.—Dallas Dec. 3, 2020)

Here we have a case that clearly discusses why a party preserved its complaint as to the jury charge:

Jury Charge: “In its first issue, BMGL asserts that the trial court’s charge was erroneous in that it improperly instructed the jury regarding the contract. BMGL asserts that the trial court erred in charging the jury that the parties’ agreement unambiguously promised Perthuis commission on post-termination sales for which he was the “procuring cause.” BMGL argues that the Employment Offer Letter, which contains the provision that Perthuis was entitled to a 3.5% commission on his net sales, unambiguously did not provide that he was entitled to a commission for sales that he “procured,” nor did it promise commissions even after his employment with BMGL terminated. A. Preservation As a preliminary matter, Perthuis argues that BMGL did not make a timely and specific objection to the jury charge with the objections it now asserts on appeal. To preserve error in the charge, an objecting party must present to the trial court a complaint that distinctly designates the error and grounds for the objection. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 272, 274;. . . At the charge conference, BMGL objected to the jury charge on numerous grounds. This included objections that “the instruction is inconsistent with the Employment Agreement’s terms,” that “the term ‘procuring cause’ does not appear in the Employment Agreement,” that “the instruction purports to impose obligations on [BMGL] not contained in the Employment Agreement,” and that “the instruction is a misstatement of the law that applies to the facts.” These are specific objections that alerted the trial court that BMGL disputed both the trial court’s construction of the commission provision in the Employment Offer Letter and the submission of the specific question to the jury. See Tex. R. Civ. P. 274 (providing that objections to charge must be specific); . . . We conclude that BMGL preserved its complaints for review on appeal. n. 1 n. 1 . . . .We likewise note that BMGL was not required to submit a “substantially correct alternate question or instruction”—its specific objection was sufficient to preserve its complaint that this jury question was improper. See Tex. R. Civ. P. 274 (party objecting to charge must point out distinctly objectionable matter and grounds of objection); id. R. 278 (providing that party must submit substantially correct instruction to preserve error in failing to submit question or instruction, but objection alone is sufficient to preserve issue if instruction is relied upon by other party).” Baylor Miraca Genetics Labs., LLC v. Perthuis, No. 01-19-00095-CV, 2020 Tex. App. LEXIS 9407, at *8-9 (Tex. App.—Houston [1st Dist.] Dec. 3, 2020)

You can first raise a complaint on appeal about an affidavit’s substantive defects:

Affidavit: “Lindamood’s argument that the Mogged Parties waived all objections to Fitzgerald’s affidavit is thus inaccurate; substantive defects can always be reviewed on appeal.” Mogged v. Lindamood, No. 02-18-00126-CV, 2020 Tex. App. LEXIS 9445, at *39 n.19 (Tex. App.—Fort Worth Dec. 3, 2020)

You have to make the trial court aware of your request–taking contradictory positions may not do that:

Jury Charge: “Even if we were to depart from the plain language of Rule 278 and our own precedent and conclude that a written submission was not required to preserve [*87] error, we would be unable to apply that doctrine in this instance. First, Cantu has taken apparently conflicting positions regarding whether he was requesting the trial court to submit the “good faith” affirmative defense to the jury as a question or an instruction. In his brief and reply brief, Cantu alleges that he argued that good faith could be submitted to the jury as an instruction or a proposed question. The record shows that Cantu’s counsel used the following terminology during the charge conference: “the jury should be instructed,” “[w]e believe it’s proper as an instruction; “[w]e’re not asking that it be submitted as an issue—as a question,” “[a]n instruction to the jury is what we’re asking.” Cantu’s counsel even argued to the trial court that her stated concerns regarding the submission would be reasonable if he were submitting a jury question rather than an instruction. Second, the parties inconsistently refer to both questions five and six of the charge for placement of the instruction, and it is thus somewhat unclear regarding how Cantu anticipated utilizing the instruction. Finally, the parties refer to the relevant commentary from which the “good faith” defense originated [*88] as comment number six to Rule 8.04, but based on our reading of Rule 8.04, the Rule lacks six comments. The “good faith” defense appears to be incorporated in the four comments to the Rule as comment number three. Under these circumstances, we cannot say that Cantu clearly made the trial court aware of his request, timely and plainly, with his oral dictation in the record of his exact request and with any repeated objections, so as to fall within the minority view regarding preservation of error. See Ft. Worth Indep. Sch. Dist., 498 S.W.3d at 679-80; In re M.P., 126 S.W.3d at 231.” Cantu v. Comm’n for Lawyer Discipline, No. 13-16-00332-CV, 2020 Tex. App. LEXIS 9434, at *86-88 (Tex. App.—Corpus Christi Dec. 3, 2020)

We also had a litany of cases which held that parties failed to preserve their complaints by failing to raise those complaints in the trial court.

Y’all take good care and enjoy the weekend.

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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