February 3, 2022
Table of Contents
A complaint of judicial bias, while first raiseable (if that’s a word) on appeal, requires a showing the bias probably caused the rendition of an improper judgment
Though long, this opinion reminds us that improper severance is a complaint which can first be raised on appeal–at least in some courts of appeals
The complaint you make on appeal must be the complaint you made at trial
I find this holding about a request for findings confusing–it looks like the opinion overstates how much a request for findings can preserve. Perhaps I am missing something
Your complaint must comply with the pertinent rules–including the rules for discovery, and a new trial on newly discovered evidence
New Trial (Newly Discovered Evidence)
Your complaint must be timely
You have to obtain a ruling on your complaint on the record in the trial court
While I won’t profile them here, opinions for the last few weeks reaffirmed that you must make a complaint about the following in the trial court
Burden of Proof
Texas Citizen’s Participation Act
A complaint of judicial bias, while first raiseable (if that’s a word) on appeal, requires a showing the bias probably caused the rendition of an improper judgment:
Judicial Bias: “Although not framed in terms of fundamental error, the Texas Supreme Court has recognized that claims of judicial bias would not be waived by a failure to object in the trial court if “the conduct or comment cannot be rendered harmless by proper instruction.” Dow Chem., 46 S.W.3d at 241. As we have explained previously, “[t]his ‘limited,’ ‘narrow,’ and ‘rare’ exception to the preservation-of-error requirements in civil cases essentially requires a harm analysis—the error ‘probably caused the rendition of an improper judgment’—to determine if the error was incurable and, therefore, not subject to waiver.” In re L.S., No. 02-17-00132-CV, 2017 Tex. App. LEXIS 8963, 2017 WL 4172584, at *16 (Tex. App.—Fort Worth Sept. 21, 2017, no pet.) (mem. op.) (first citing Tex. R. App. P. 44.1(a)(1); then citing B.L.D., 113 S.W.3d at 350-51; then citing In re K.R., 63 S.W.3d 796, 799-800 (Tex. 2001); and then citing Dow Chem., 46 S.W.3d at 241).
B. Application of the Law to the Facts
Here, it is undisputed that Mother did not object at the trial-court level regarding the complaints she now makes on appeal. And Mother does not argue that the trial court lacked subject-matter jurisdiction nor contend, let alone demonstrate, that the former trial judge’s actions and comments directly and adversely affected the public interest as declared in the statutes or constitution of our state. See Mack Trucks, 206 S.W.3d at 577. Thus, the issue of whether Mother has preserved her complaints turns on whether the alleged error “probably caused the rendition of an improper judgment.” L.S., 2017 Tex. App. LEXIS 8963, 2017 WL 4172584, at *16.
Having reviewed the record and Mother’s complaints, we cannot say that the alleged error “probably caused the rendition of an improper judgment.” See id. The actions and comments made by the former trial judge that Mother complains of occurred at the post-removal adversary hearing in February 2020. Subsequent to that hearing, the case was transferred to the 393rd District Court, and the trial judge of the 393rd District Court—not the former trial judge—presided over a nine-day jury trial in July 2021. Mother makes no complaint regarding the trial judge of the 393rd District Court and no complaint regarding the July 2021 jury trial, and Mother does not explain how the actions and comments of the former trial judge impacted the results of the July 2021 jury trial.9 Indeed, the relief that Mother seeks on appeal—that we reverse the termination order and remand the case back to the trial court—seems redundant when the case was already transferred away from the former trial judge and where a trial before a different judge has already taken place.” In the Int. of B.A., No. 02-21-00278-CV, 2022 Tex. App. LEXIS 661, at *15-17 (Tex. App.—Fort Worth Jan. 27, 2022)
Though long, this opinion reminds us that improper severance is a complaint which can first be raised on appeal–at least in some courts of appeals:
Severance: “In his cross-appeal, Watkins argues that the probate court abused its discretion in severing his TTLA attorney fee claim from the Executor’s TTLA claim and transferring the attorney fee claim to the district court because the claim would not be the proper subject of an independently asserted lawsuit. See Tex. Civ. Prac. & Rem. Code § 134.005(b) (providing that party “who prevails” in TTLA claim shall be awarded attorney fees); State v. Morello, 547 S.W.3d 881, 888 (Tex. 2018) (“Severance is proper when (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of an independently asserted lawsuit, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues.”). Nevertheless, Watkins argues that “[a]lthough the severance was improper, it does not affect this Court’s jurisdiction.” We agree that the severance of Watkins’s TTLA attorney fee claim from the Executor’s TTLA claim was improper but disagree that the improper severance does not affect this Court’s jurisdiction. Moreover, “subject-matter jurisdiction must exist before we can consider the merits, a challenge to it cannot be waived, and ‘we have an obligation to examine our jurisdiction any time it is in doubt.'” Texas Propane Gas Ass’n v. City of Houston, 622 S.W.3d 791, 797 (Tex. 2021) (quoting Pike v. Texas EMC Mgmt., LLC, 610 S.W.3d 763, 774 (Tex. 2020)).
The Texas Supreme Court recently addressed the jurisdictional nature of an improper severance in Morello, although neither party cites the case before this Court.4 The Morello Court held that a party may challenge an improper severance even when no party had asserted the objection below because “challenges to lack of subject matter jurisdiction may be raised for the first time on appeal.” 547 S.W.3d at 888. Thus, the Morello Court considered the question of the propriety of the underlying severance as implicating subject matter jurisdiction. The Morello Court concluded that the severance at issue in that case was proper-although the two cases were “factually intertwined,” they were “not so interwoven as to override proper severance”-and “[t]hat being so, the judgment against [Morello] was not interlocutory, but final and subject to appeal.” Id. at 889. Here, in contrast, Watkins’s TTLA attorney fee claim fails to satisfy one of the essential elements for a proper severance: “[T]he severed claim is one that would be the proper subject of an independently asserted lawsuit.” Id. (citing F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007)); see also Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 79 n.1 (Tex. 1959) (” Severance of a single cause of action into two parts is never proper and should not be granted for the purpose of enabling the litigants to obtain an early appellate ruling on the trial court’s determination of one phase of the case.”); Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 881 (Tex. App.-Austin 2002, no pet.) (holding that “trial court abused its discretion when it severed Bradford’s claim for declaratory relief from his claim for attorney’s fees under the Act”). Thus, here, in contrast to Morello, the judgment is interlocutory and not final and subject to appeal. See 547 S.W.3d at 889; Dalisa, 81 S.W.3d at 881 (“To be appealable, Bradford’s summary judgment must dispose of all parties and all issues before the trial court. . . . The summary judgment awarding Bradford declaratory relief does not satisfy this requirement because the severance order is the result of an abuse of discretion. The invalid severance is prejudicial because it converted into a final judgment a judgment that is interlocutory.”).
We recognize that it is difficult to reconcile Morello and Dalisa with Pierce and Schieffer v. Patterson. Compare Morello, 547 S.W.3d at 888 (holding that complaint of severance below is challenge to subject matter jurisdiction that may be raised for first time on appeal although concluding that severance was proper, and “[t]hat being so, the judgment against him was not interlocutory, but final and subject to appeal” (emphasis added)); Dalisa, 81 S.W.3d at 881 (concluding that severance order was result of abuse of discretion and “prejudicial because it converted into a final judgment a judgment that is interlocutory,” vacating severance order, and dismissing appeal for want of appealable judgment), with Schieffer v. Patterson, 433 S.W.2d 418, 419 (Tex. 1968) (per curiam) (applying Pierce and reversing court of appeals’ determination that it lacked jurisdiction to consider appeal because of improper severance); Pierce, 329 S.W.2d at 79 n.1 (noting that “rule against splitting causes of action” “is for the benefit of and may be waived by the defendant” and “we do not think the appealability of a judgment should be made to turn upon whether the action is severable”). However, the Dalisa Court expressly considered Pierce-although it did not directly address Pierce’s holding as to appellate jurisdiction-yet still chose to consider the improper severance as affecting appellate jurisdiction. See 81 S.W.3d at 880 (citing Pierce, 329 S.W.2d at 79 n.1). Even if we were inclined to revisit the issue in Dalisa, 5 “We may not overrule a prior panel opinion of this court absent an intervening change in the law by the Legislature or a higher court or by decision of this court sitting en banc.” Connor v. Hooks, No. 03-19-00198-CV, 2021 Tex. App. LEXIS 1648, 2021 WL 833971, at *8 n.11 (Tex. App.-Austin Mar. 5, 2021, pet. filed) (mem. op.) (quoting Lawson v. Keene, No. 03-13-00498-CV, 2016 Tex. App. LEXIS 1812, 2016 WL 767772, at *4 (Tex. App.-Austin Feb. 23, 2016, pet. denied) (mem. op.)). And the intervening decision by the Texas Supreme Court in Morello only lends further support to Dalisa. See Morello, 547 S.W.3d at 888 (citing Dalisa, 81 S.W.3d at 882, without disapproval).
n. 5 We acknowledge that our sister courts have taken divergent paths. Some have chosen to conclude that an improper severance does not deprive an appellate court of jurisdiction. See, e.g., Hyde v. Hawk, No. 07-14-00059-CV, 2016 WL 2341256, at *2 (Tex. App.—Amarillo May 2, 2016, no pet.) (mem. op.) (noting in transfer case from Fort Worth court of appeals that “[m]ost significantly for our present purpose, the Fort Worth court of appeals is among the courts that has not adopted Dalisa’s rationale” that “an erroneous severance deprives an appellate court of jurisdiction over an appeal of the judgment in the severed cause”); Levetz v. Sutton, 404 S.W.3d 798, 804 (Tex. App.—Dallas 2013, pet. denied) (“Our determination that the severance order was erroneous does not deprive us with jurisdiction over the appeal.”); Rucker v. Bank One Tex., N.A., 36 S.W.3d 649, 652 (Tex. App.—Waco 2000, pet. denied) (noting split in authority and holding “that our finding of an improper severance does not deprive us of jurisdiction”); Bird v. Lubricants, USA, LP, No. 02-06-00061-CV, 2007 Tex. App. LEXIS 7110, 2007 WL 2460352, at *3 n.8 (Tex. App.—Fort Worth Aug. 31, 2007, pet. denied) (mem. op.) (collecting authorities). Others have concluded that they have appellate jurisdiction to reverse the severance order and remand the case but that they lack jurisdiction to reach the other issues on appeal. See, e.g., Lousteau v. Noriega, No. 01-15-00254-CV, 2016 Tex. App. LEXIS 9599, 2016 WL 4537371, at *6 (Tex. App.—Houston [1st Dist.] Aug. 30, 2016, pet. denied) (collecting authorities).” Bertucci v. Watkins, No. 03-20-00058-CV, 2022 WL 26156, 2022 Tex. App. LEXIS 671, at *4-8 (Tex. App.-Austin Jan. 28, 2022, no pet. hist.) (mem. op.).
The complaint you make on appeal must be the complaint you made at trial:
Trial Amendment: “On appeal, O’Rourke contends that it did not waive the Complaint based on its objection during trial when Texas Premier’s counsel called himself as a witness. But that objection was to Texas Premier presenting evidence as to its attorney’s fees, and the objection was based on the absence of a pleading by Texas Premier seeking recovery of attorney’s fees. In O’Rourke’s objection, it did not object that the trial court’s allowing Texas Premier an oral trial amendment to add an attorney’s fees claim did not suffice to modify Texas Premier’s pleading in the absence of the filing of a written amendment. After O’Rourke made its objection to attorney’s fees testimony from Texas Premier’s attorney, Texas Premier’s counsel asked the trial court to allow Texas Premier to make an oral trial amendment of Texas Premier’s pleading so Texas Premier could seek to recover its attorney’s fees under the credit agreement’s prevailing-party provision. The trial court overruled O’Rourke’s evidentiary objection based on the lack of a pleading, stated that it would hear the testimony regarding Texas Premier’s attorney’s fees, and ruled that it would allow the requested amendment to Texas Premier’s pleading. O’Rourke’s objection did not constitute a specific objection that the trial court’s allowing Texas Premier an oral trial amendment to add an attorney’s fees claim did not suffice to modify Texas Premier’s pleading in the absence of the filing of a written amendment.” O’Rourke Dist. Co. v. Tex. Premier Res., LLC, No. 14-19-00994-CV, 2022 Tex. App. LEXIS 472, at *6-7 (Tex. App.—Houston [14th Dist.] Jan. 25, 2022)
I find this holding about a request for findings confusing–it looks like the opinion overstates how much a request for findings can preserve. Perhaps I am missing something:
Judgment: “We note that Grandparents failed to object at trial to the trial court’s ruling adopting some portions of the MSA but refusing to adopt the MSA in its entirety. Grandparents also failed to file a motion for new trial to apprise the trial court of the complaints they now assert on appeal. Nonetheless, they preserved their complaints for appeal by filing a request for findings of fact and conclusions of law, specifically seeking the trial court’s reasons for failing to adopt the MSA….We therefore can proceed to address the merits of Grandparents’ assertions.” In the Int. of A.D.B., No. 14-20-00199-CV, 2022 Tex. App. LEXIS 583, at *11-12 (Tex. App.—Houston [14th Dist.] Jan. 27, 2022)
Your complaint must comply with the pertinent rules–including the rules for discovery, and a new trial on newly discovered evidence:
Discovery: “According to Relators, “This request asks an entity with no relation or duty to Real Parties to outline a progression of actions that are irrelevant to the claims at bar.” But Scona did not object to interrogatory thirteen; therefore, this complaint is waived. See Tex. R. Civ. P. 193.2(a) (“party must state specifically the legal or factual basis for the objection”).” In re Aethon Energy Operating LLC, No. 12-21-00202-CV, 2022 Tex. App. LEXIS 560, at *15 (Tex. App.—Tyler Jan. 26, 2022)
New Trial (Newly Discovered Evidence): “When as here, the complaint is one in which evidence must be presented, the complaining party must file a motion for new trial to preserve error. See TEX. R. CIV. P. 324(b). Merely filing a document that raises a complaint, however, does not preserve error; the party must bring the complaint to the trial court’s attention….Texas Rule of Appellate Procedure 33.1(b) provides that “the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unlesstaking evidence was necessary to properly present the complaint in the trial court.”TEX. R. APP. P. 33.1(b) (emphasis added).
We construe Wysinger’s June 18, 2020, letter as an attempt to file a motion for new trial. She attached to her “motion” several emails indicating that she disagreed with settlement of her claims, she did not believe her attorney acted “with her best interests in mind,” and she was seeking other counsel. However, these documents were attached to an unverified motion for new trial. In order to introduce evidence outside the record, a motion for new trial must be verified….Because new evidence was necessary to support Wysinger’s arguments, she was obligated to notify the trial court of its purported error by filing a verified motion for new trial and seeking a ruling on the motion. See TEX. R. CIV. P. 324(b)(1);….She failed to comply with these procedural requirements.
Moreover, when a motion for new trial raises a complaint that requires the presentation of evidence, the movant must ask the court for a setting and not allow her motion to be overruled by operation of law….Here, Wysinger’s motion asked the court to review the additional information and to contact her regarding the court’s decision “once the information has been reviewed.”
Her motion neither requests a hearing nor does the record indicate any other request for a hearing before the motion was overruled by operation of law.
Because Wysinger failed to file a verified motion for new trial and failed to seek a hearing on her motion, we conclude she waived error, if any, and failed to preserve her issue for appellate review.” Wysinger v. Flowers, No. 05-20-00713-CV, 2022 Tex. App. LEXIS 673, at *3-5 (Tex. App.—Dallas Jan. 28, 2022)
Evidence: “To show that the trial court abused its discretion in excluding evidence, a complaining party must preserve error by actually offering the evidence and obtaining an adverse ruling from the court. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a);….Further, once a proponent secures an exclusionary ruling, he must preserve the evidence in the record by an offer of proof to complain of the exclusion on appeal. Tex. R. Evid. 103(a), (b); ….Father did not preserve error in the exclusion of evidence in the trial court. Except for fundamental error, we are not authorized to consider issues not properly raised by the parties in the trial court….Father argues that the trial court committed fundamental error in excluding his testimony.
The fundamental error doctrine is a narrow and limited exception to the procedural rules requiring parties to preserve error on their appellate complaints….At most, the doctrine applies when (1) the record shows on its face that the court rendering the judgment lacked jurisdiction; (2) the alleged error occurred in a juvenile delinquency case and falls within a category of error that does not require preservation of error; or (3) when the error directly and adversely affects the public interest, as that interest is declared by a Texas statute or the Texas Constitution…. fundamental error, and Father does not argue otherwise. The complaint Father asserts in his first issue does not constitute fundamental error. See Mack Trucks, 206 S.W.3d at 577 (holding trial court’s refusal to receive additional evidence and reconsider its ruling was not fundamental error). Because the trial court’s alleged erroneous exclusion of evidence does not fall within any category for fundamental error, we overrule Father’s first issue.” Jovel v. Blanco, No. 14-20-00638-CV, 2022 Tex. App. LEXIS 465, at *7-8 (Tex. App.—Houston [14th Dist.] Jan. 25, 2022)
Your complaint must be timely:
Evidence: “Furthermore, even if the challenged statements were subject to limine rulings, the record does not show that Guerrero immediately objected when the testimony was introduced as required to preserve error in admission of the testimony. See Tex. R. App. P. 33.1(a)(1);…. The record further shows that Guerrero did not object to other statements at trial about Cardenas cleaning houses for a living, which Guerrero does not challenge on appeal. See Richardson, 677 S.W.2d at 501 (stating that admission of testimony is deemed harmless if same or similar evidence is subsequently introduced without objection).” Guerrero v. Cardenas, No. 01-20-00045-CV, 2022 Tex. App. LEXIS 468, at *46 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022)
Trial Amendment: “O’Rourke also asserts that it avoided waiver of the Complaint by raising it in various post-judgment filings and in its statements at the oral hearing on its motion for new trial. We presume, without deciding, that O’Rourke raised the Complaint by objecting at each of these points. Even under this presumption, each of these objections occurred after the trial court signed the First Judgment, and thus came too late to avoid waiver. See Tex. R. Civ. P. 90;” O’Rourke Dist. Co. v. Tex. Premier Res., LLC, No. 14-19-00994-CV, 2022 Tex. App. LEXIS 472, at *7-8 (Tex. App.—Houston [14th Dist.] Jan. 25, 2022)
You have to obtain a ruling on your complaint on the record in the trial court:
Bench Warrant: “Guerrero argues that the court issued an off-the-record ruling denying her request for a bench warrant. She also argues that she renewed her request at a hearing in July 2019, but the trial court again “refused” off-the-record to issue a bench warrant. To preserve error concerning a trial court’s ruling, the appellate record must show that the trial court made the challenged ruling. Tex. R. App. P. 33.1(a)(2)(A); ….As Guerrero concedes, the record does not show that the trial court ever ruled or refused to rule on Guerrero’s requests for a bench warrant compelling Benton’s attendance at deposition or trial. Therefore, Guerrero did not preserve any error in these off-the-record rulings.” Guerrero v. Cardenas, No. 01-20-00045-CV, 2022 Tex. App. LEXIS 468, at *32-33 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022)
Limine: “Guerrero argues that the trial court’s rulings on the motion in limine prohibited references to Cardenas’s “financial status or ability to satisfy a judgment, including [Cardenas’s] individual net worth or assets,” and prohibited the parties from mentioning “that any party is rich or poor, which is irrelevant and prejudicial.” As support for the trial court’s rulings, Guerrero cites the entire transcript of the July 2018 pretrial hearing. However, this transcript does not include these rulings or any mention of them. And although the record on appeal includes motions in limine filed by the parties, the record does not include any rulings on these motions. See Tex. R. App. P. 33.1(a), 38.1(g), (i). Therefore, the record does not support Guerrero’s contention that the challenged testimony was subject to limine rulings.” Guerrero v. Cardenas, No. 01-20-00045-CV, 2022 Tex. App. LEXIS 468, at *45-46 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022)
Show Cause: “Guerrero argues that the trial court erred by not ordering Benton to show cause. However, this request was pleaded only in the alternative. Although the trial court did not grant this alternative request, it did grant Guerrero’s primary request: to compel Benton’s attendance at his deposition. The record does not show that Guerrero objected to the trial court not granting her alternative relief. Nor does the record show that Guerrero sought additional relief concerning Benton’s failure to comply with the order compelling his deposition attendance. See Tex. R. App. P. 33.1(a). Therefore, Guerrero did not preserve any error concerning these rulings.” Guerrero v. Cardenas, No. 01-20-00045-CV, 2022 Tex. App. LEXIS 468, at *33-34 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022)
Subpoena: “At trial, Guerrero’s counsel objected that he only received notice of trial the prior afternoon and therefore lacked an opportunity to issue a subpoena to Benton. But counsel also stated that Guerrero was “prepared to proceed today but with that objection lodged.” Guerrero did not obtain a ruling on this objection, and she did not make any objection regarding enforcement of a subpoena. See Tex. R. App. P. 33.1(a). Therefore, Guerrero did not preserve any error in the trial court’s failure to enforce a trial subpoena for Benton….Guerrero next argues that she was unable to subpoena Benton for trial because the trial court notified her of trial “at approximately 4:00 p.m.” the day before trial began. Cardenas responds that Guerrero waived her argument by failing to cite any supporting authority. She further argues that Guerrero did not attempt to subpoena the witness, even with short notice, and therefore any error in noticing trial was harmless.
At trial, Guerrero’s counsel represented to the trial court that he received “notice after 5 o’clock about today’s [trial] setting” and therefore did not have an opportunity to serve Benton with a subpoena. Counsel objected “on those grounds because [Benton] is a key witness and he was a[n] eyewitness to this matter.” “But,” counsel continued, “we are prepared to proceed today with that objection lodged.” The record does not show that the trial court ruled or refused to rule on Guerrero’s objection. Thus, this complaint has not been preserved for our review. See [*48] Tex. R. App. P. 33.1(a)(2).
But even if Guerrero had preserved error, the record does not show an abuse of discretion in denying her motion for new trial on this ground. The record does not show that Guerrero’s counsel—who is authorized to issue subpoenas as a licensed attorney and officer of the court—attempted to serve Benton despite receiving late notice of trial. See Tex. R. Civ. P. 176.4(b). Nor did Guerrero request a trial continuance so she could have an opportunity to attempt to serve the subpoena. She only lodged an objection on which she did not obtain a ruling. See Tex. R. App. P. 33.1(a)(2). ” Guerrero v. Cardenas, No. 01-20-00045-CV, 2022 Tex. App. LEXIS 468, at *34-35 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022)
Trial Amendment: “For the first time in her reply brief, Guerrero argues that she “orally requested permission to file a trial amendment” on the morning of trial to allege a violation of section 521.021, but the trial court erroneously refused her amendment. See Tex. R. Civ. P. 63 (authorizing parties to amend pleadings without leave of court “at such time as not to operate as a surprise to the opposite party”). We do not consider arguments raised for the first time in a reply brief….See Tex. R. App. P. 33.1(a)(1). Thus, Guerrero has waived this part of her issue for our review.” Guerrero v. Cardenas, No. 01-20-00045-CV, 2022 Tex. App. LEXIS 468, at *39 n.7 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022)
All for now. Y’all stay safe and well.
Yours, Steve Hayes