Error Preservation in Texas Civil Cases, February 20, 2018

Dear All:

Table of Contents

You can preserve an evidentiary objection by getting a ruling at a pre-trial conference:


  • Evidence: “We first address whether Connie preserved error by offering her exhibits into evidence and securing an adverse ruling. Tex. R. App. P. 33.1(a). Connie has not identified by citation—nor have we found—a place in the record when she offered the exhibits into evidence during the evidentiary portion of trial. . . . However, the trial court clearly ruled at a January 16 pretrial hearing that none of Connie’s exhibits would be admitted into evidence at trial and announced that ruling on the record. The trial court has [*44] the authority to make a pretrial ruling on the admissibility of evidence. . . . We also conclude that the excluded exhibits affect Connie’s substantial rights because they pertain to her rights of possession and custody of her children. . . . Connie also informed the trial court of the substance of the excluded exhibits by an offer of proof. Tex. R. Evid. 103(a)(2); . . . Thus, we hold that Connie preserved error on this issue.” In re Marriage of Harrison, 14-15-00430-CV, 2018 Tex. App. LEXIS 1249, at *43-44 (App.—Houston [14th Dist.] Feb. 15, 2018)

Here is a case where courts of appeals held several complaints were preserved:  a party preserved a Casteel objection concerning a damages question, and another held that a party did not waive a special appearance:


  • Jury Charge: “In their fourth issue, Appellants challenge the legal and factual sufficiency of the evidence to support the damages awarded. Citing Harris County v. Smith, Appellants assert that it is “error to subject to the jury a single, broad-form damages question, when the liability questions presented mix valid and invalid theories of recovery.” See Harris Cty. v. Smith, 96 S.W.3d 230, 234 (Tex. 2002). Appellees respond that Appellants failed to preserve this error for appeal because they did not specifically object to the damages question. The trial court presented a single, broad-form damages question to the jury. During the charge conference, Appellants’ counsel objected: ‘As to Question 7, the damages question. For [*18] the reasons that we’ve stated and based on the failure — the evidentiary failure to prove a sum certain of damages, we object to Question No. 7 as to damages.’ Prior to this objection, Appellants’ counsel had objected to submitting breach of fiduciary duty and theft as theories of recovery, arguing that there was no evidence to support those claims. Given this context, it is reasonable to conclude that these objections related to the inclusion of those theories in the damages charge.See Tex. R. App. P. 33.1 (explaining that preservation for appeal requires a timely objection stating specific grounds, “unless the specific grounds were apparent from the context”). Therefore, Appellants sufficiently preserved error to invoke the harm analysis employed in Harris County.” Clement v. Blackwood, No. 11-16-00087-CV, 2018 Tex. App. LEXIS 1083, at *17-18 (App.—Eastland Feb. 8, 2018)
  • Managing Conservator: “The Department contends that Father did not preserve his challenge to its appointment as managing conservator because he did not attack the trial court’s February 2012 judgment naming the Department managing conservator. We note that Father was not served in the 2012 action. The Department also claims that Father did not plead for conservatorship. However, Father testified, when asked what he was asking the court for, “I would like to have my child back to the family.” See Baltzer v. Medina, 240 S.W.3d 469, 476 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (stating that where “issues not raised by the pleadings are tried [*27] by express or implied consent of the parties, these issues shall be treated as if they had been raised by the pleadings.”). The Department also argues that Father conceded the issue. In its brief, the Department alleges that Father asked the court to continue the Department as the child’s sole managing conservator, quoting counsel as saying “consider PMC to the agency.” We do not agree. The full quote of counsel was “there’s no grounds to terminate this father’s rights and consider PMC to the agency on this case because this father absolutely deserves a chance to parent this child.” We conclude Father did not waive this issue, and we address Father’s challenge to the appointment of the Department as managing conservator.” In the Interest of F.E.N., No. 14-17-00598-CV, 2018 Tex. App. LEXIS 1012, at *26-27 (App.—Houston [14th Dist.] Feb. 6, 2018)
  • Special Appearance: “Wales asserts that Ruppert’s testimony “in support of Thibodeaux’s motion to transfer venue” violated the due-order-of-hearing rule that requires any motion challenging jurisdiction to be heard and determined before a motion to transfer venue or any other plea or pleading. See Tex. R. Civ. P. 120a(2). Although Wales correctly states the law regarding the due-order-of-hearing requirement, his argument mischaracterizes the proceedings in the trial court. The record clearly shows that the parties were arguing the Ruppert Defendants’ special appearance, not Thibodeaux’s motion to transfer venue, at the time that Ruppert provided testimony. Wales’s counsel effectively acknowledged the focus of the hearing by informing the trial court in response to Ruppert’s argument that “[t]he issue here is what Mr. Ruppert and his businesses do here in Texas that warrants them being brought into the state of Texas.”” Wales v. Ruppert, No. 09-17-00080-CV, 2018 Tex. App. LEXIS 1100, at *8 (App.—Beaumont Feb. 8, 2018)

Here is a case where a court held that a party did not preserve a Casteel objection to a question about attorney’s fees:


  • Attorney’s Fees: “Referring to the seven different claims, Reeder stated that “for them to recover any attorney’s fees, they have to claim each one independently.” He then stated his specific objection as follows: ‘ Since the potential not to recover is there on any of these seven or to recover at a lower percentage, a lesser amount, I don’t think it’s as simple as just saying, well, they only recovered on three of the seven. We are only going to allow seven. The fact is they have not segregated them. There is absolutely no testimony of segregation. We believe it is error and we are — and we object to there being any submission of [*18] attorney’s fees in this particular case in regards to the recovery efforts and the fees sought that were attorney fees to recover on the balances that the Plaintiff claim they were owed.’ . . . In response to Question No. 1 of the jury charge, the jury answered “yes” as to each cause of action, finding that Reeder failed to perform his obligations under the terms of the parties’ agreement “[w]ith regard to each billing account.” However, the jury determined that White P.C. is not entitled to damages for breach of the contracts involved in the Forest Hill/Harris Sand Unit matter, Fry supreme court appeal, Jamestown Insurance Company appeal, and the general category. . . . After the jury returned its verdict, Reeder asserted a motion to disregard the jury findings. Pertinent to White P.C.’s issue on appeal, Reeder contended that the trial court should disregard the jury’s answer to Question No. 3. He argued that White P.C. failed to segregate attorney’s fees between the seven causes of action pled. Noting that the jury awarded damages on just three of the seven pleaded claims, Reeder asserted that White P.C. is not entitled to attorney’s fees for the four unsuccessful claims. Reeder’s post-verdict complaint amounts to a challenge to the charge as given. See Tubb v. Bartlett, 862 S.W.2d 740, 748 (Tex. App.—El Paso 1993, writ denied). A motion to disregard jury [*20] findings is not the proper method for preserving error regarding the submission of jury questions. Id. A careful reading of Reeder’s objection made at the charge conference reveals that he opined that segregation of fees between each of the seven matters was necessary. However, his precise pre-charge objection, relying on the absence of evidence of segregation of fees, was that Question No. 3 should not be submitted to the jury at all. Objections to the court’s charge must be made before the court has submitted the charge to the jury. Id. Reeder did not object to the broad submission of the issue and therefore waived the complaint that White P.C. is not entitled to attorney’s fees due to its failure to segregate fees between the seven causes of action.”White v. Reeder, No. 12-17-00026-CV, 2018 Tex. App. LEXIS 1230, at *17-20 (App.—Tyler Feb. 14, 2018)

You have to comply with other pertinent rules:


  • Evidence: “Williams made no offer of proof or bill of exception regarding the excluded evidenceRather, he refers the Court to the un-redacted DOL report that was on file with the trial court as part of the earlier summary judgment proceeding.  While the summary judgment evidence is part of the record on appeal, it is not a proper bill of exception or an offer of proof. Malone v. Foster, 956 S.W.2d 573, 577-78 (Tex. App.—Dallas 1997), aff’d, 977 S.W.2d 562 (Tex. 1998). The reviewing court may be able to discern from the record the nature of the evidence and propriety of the trial court’s ruling, but without an offer of proof or bill of exception, the trial court is deprived of a contemporaneous opportunity to correct any error and we generally cannot determine whether exclusion of the evidence was harmful. Sink v. Sink,364 S.W.3d 340, 346 (Tex. App.—Dallas 2012, no pet). Thus, Williams failed to preserve this issue for appeal. See id.” Williams v. FlexFrac Transp., LLC, No. 05-16-01032-CV, 2018 Tex. App. LEXIS 996, at *6 (App.—Dallas Feb. 5, 2018)
  • Fiduciary Duty:“Carto further asserts that although Briar “may have had the contractual right [*28] to foreclose on the property,” it was not entitled to “exercise that right by . . . breaching the informal fiduciary duty it owed to Carto.” Carto did not raise, in either its second amended petition or response to Briar’s summary-judgment motion, a claim of breach of fiduciary duty. Rather, Carto waited until its motion for new trial, filed after the trial court had granted summary judgment and dismissed Carto’s claims to raise its claim that Briar had breached its “informal fiduciary duties.” This was not sufficient to preserve the issue for appellate review.” Carto Props., LLC v. Briar Capital, L.P., No. 01-15-01114-CV, 2018 Tex. App. LEXIS 1186, at *27-28 (App.—Houston [1st Dist.] Feb. 13, 2018)

You have to obtain a ruling:


  • Exhaustion of Remedies: “At trial, Zarychta argued that the application of Section 14.005(b) to his case violated his right to access the courts. The trial court did not rule on this issue. On appeal, he argues that Section 14.005(b) “does not now operate equally on all within the class.” We find these issues unpreserved. See Tex. R. App. P. 33.1.” Zarychta v. Greene, No. 06-17-00105-CV, 2018 Tex. App. LEXIS 1212, at *5 n.3 (App.—Texarkana Feb. 14, 2018)
  • Summary Judgment: “The Belchers complain finally that the movants’ summary-judgment proof “was not properly authenticated and did not conform to the Texas Rules of Evidence.” To preserve error, one objecting to summary-judgment proof must obtain a rulingWashington v. Tyler Indep. Sch. Dist., 932 S.W. 2d 686, 689 (Tex. App.—Tyler 1996, no writ). By failing to obtain a ruling on their objections, the Belchers have waived their complaints regarding the movants’ summary-judgment proof.” Belcher v. Geary Family Tr., No. 03-16-00502-CV, 2018 Tex. App. LEXIS 1046, at *5 (App.—Austin Feb. 7, 2018)
  • Testimony: “As to appellant’s complaints of “lack of personal knowledge” respecting the production of information and conclusory testimony, the record shows his only objection raised on those grounds in the trial court as to the testimony of the City’s witnesses, stated above, was not ruled upon.See Tex. R. App. P. 33.1 (preservation of complaint for appellate review requires timely request or objection and ruling by trial court). Therefore, any such objection was not preserved for review on appeal. Id.” Rines v. City of Carrollton, No. 05-15-01321-CV, 2018 Tex. App. LEXIS 1190, at *23 (App.—Dallas Feb. 13, 2018)

Your complaint has to be sufficiently specific:


  • Affidavit: “An objection that the affiant does not have personal knowledge is an objection to the form of the affidavit and must be preserved in the trial court. . . . Here, Robbie filed written objections to Gerald’s affidavit on the basis that it “lack[ed] foundation” without explaining precisely what foundation was lacking. She did not object to a lack of personal knowledge.To preserve error, Robbie was required to state the grounds for the ruling she sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). Her general objection to a lack of foundation was not specific enough to preserve a complaint that the affidavit is not based on Gerald’s personal knowledge. See id. As a result, Robbie failed to preserve this complaint for appellate review. See id.” Morris v. Morris, No. 12-17-00120-CV, 2018 Tex. App. LEXIS 1229, at *7 (App.—Tyler Feb. 14, 2018)

As always, there were many decisions in which courts held error was not preserved because the parties did not raise the complaint at all in the trial court.  I won’t recite all those here.

I hope this helps you as much as it helps me. Y’all take care.


Steve Hayes


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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