Error Preservation in Texas Civil Cases, February 27, 2021

February 27, 2020

Dear All:

I hope everyone has managed to put the winter storm behind them and repair any damage, or at least can see that process coming to an end soon.

Table of Contents

You must make your complaint in a timely fashion

TCPA Motion

Your complaint on appeal must be the complaint you raised at trial


You must obtain a ruling on your complaint–and you need to be aware that ruling may need to be in a signed order, and it may not be enough that it appear on a docket sheet

Summary Judgment Evidentiary Objections

The Blurbs

You must make your complaint in a timely fashion:

TCPA Motion: “Kadow notes that Grauerholz filed an objection in the trial court asking that Kadow’s TCPA motion be dismissed as untimely. This objection was filed after the court allowed the TCPA motion to be overruled by operation of law. Because the question of timeliness was not brought to the court’s attention before the motion was overruled, that issue does not impact our review of the court’s action. See Tex. R. App. P. 33.1 (stating that error preservation requires a timely request, objection, or motion). In any event, the record demonstrates that the motion was timely filed.” Kadow v. Grauerholz, No. 02-20-00044-CV, 2021 Tex. App. LEXIS 1394, at *13 (Tex. App.—Fort Worth Feb. 25, 2021)

Your complaint on appeal must be the complaint you raised at trial:

Evidence: “But to preserve a complaint for appellate review, a party must timely object and state the specific grounds for the ruling sought. Tex. R. App. P. 33.1(a)(1)(A). A complaint on appeal that does not comport with the party’s objection at trial is not preserved for review. . . .
b. Application
We reject []’s contention that the trial court erred in failing to play the 911 recording before ruling on it for two reasons. First, [] waived his complaint because the basis on which he objected in the trial court (i.e., a Rule 403 complaint) – does not comport with the complaint he now asserts on appeal. . . . After the court indicated it would admit the 911 calls without having yet heard them, []’s counsel remarked that she misunderstood but she then merely asked for an opportunity to argue further, which the court permitted. During this argument, counsel provided a verbal description stating, “the audio is basically of a woman extremely distressed, extremely crying and yelling and in very grave distress, and it is our belief that for the jury to hear that tape would greatly harm Mr. [] in – and present a bias that would not be able to be refuted once the jury hears it.” Providing a verbal description, [] does not object to the court not hearing the call, as he does so here, but instead argues the legal basis against its admissibility. Thus, [] waived his complaint by not presenting it first to the trial court.” In re Commitment of [], No. 08-18-00220-CV, 2021 Tex. App. LEXIS 1259, at *42-43 (Tex. App.—El Paso Feb. 22, 2021)

Evidence: “Appellant also argues on appeal that the evidence was [*15] inadmissible because it was used to reinforce Dr. Proctor’s diagnosis, and that Dr. Woodrick’s evaluation was made in anticipation of litigation. n. 2 The record does not show that appellant made either of these objections. These arguments are not preserved for our review. See Tex. R. App. P. 33.1(a).

N. 2 Appellant objected to the testimony as “hearsay,” and then later elaborated, “[m]y objection is based on the fact that the jury is made aware of this whole funneling process to get to the point where we are now. It involves evaluations from other experts who are not here testifying and essentially gets into hearsay.” We reject appellant’s argument that his reference to “the whole funneling process” clearly encompassed his current argument concerning “the introduction to the jury of the preparatory phase which sets the stage for this litigation.”” In re Commitment of Allen, No. 05-20-00079-CV, 2021 Tex. App. LEXIS 1296, at *14-15 (Tex. App.—Dallas Feb. 23, 2021)

You must obtain a ruling on your complaint–and you need to be aware that ruling may need to be in a signed order, and it may not be enough that it appear on a docket sheet:

Summary Judgment Evidentiary Objections: “While not raised by either party, it is arguable that Goins has failed to preserve this issue for our review. Even though the trial court’s order granting Discover Bank’s motion states that the trial court considered “the pleadings, the other summary judgment evidence, and the arguments of the parties,” the order does not mention a ruling regarding Goins’s objections, and we generally may not imply such a ruling from the granting of summary judgment. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018). The only indication that the trial court ruled on the objections is found on the trial court’s docket sheet, which states, “P’s MSJ by sub – d filed response (no contra aff) w/ obj – denied obj’s – granted MSJ.” A docket-sheet entry, however, ordinarily forms no part of the record that may be considered on appeal; rather, it is a memorandum made for the trial court and clerk’s convenience. In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Docket-sheet entries are inherently unreliable because they lack the formality of orders and judgments. Id. Because of this unreliability, a docket-sheet entry is generally considered insufficient to constitute a judgment or decree of the court. Id. Moreover, where the record does not reflect that the trial court ruled or refused to rule on objections to summary judgment evidence, we may not infer a ruling based solely on the trial court’s summary judgment decision. See Seim, 551 S.W.3d at 166. By failing to obtain a ruling on her objections to the summary judgment evidence, Goins potentially waived the objections for appellate review. See Tex. R. App. P. 33.1(a); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317-18 (Tex. App.—San Antonio 2000, no pet.). We will assume without deciding that Goins has preserved her evidentiary complaints for our review, and we will address her second issue.” Goins v. Discover Bank, No. 02-20-00128-CV, 2021 Tex. App. LEXIS 1391, at *3 n.3 (Tex. App.—Fort Worth Feb. 25, 2021)

All for now.  Keep on keeping on.

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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