Error Preservation in Texas Civil Cases, January 1, 2020

January 1, 2020

Dear All:

Welcome to the New Year!  I hope everyone had a safe and happy holiday season, and anticipates the Best New Year ever!

The courts issued some interesting preservation decisions in the last week of the year, as the Table of Contents shows:

Table of Contents

  • The complete failure to authenticate a document is a substantive complaint which can first be raised on appeal
  • You have to bring your complaint to the trial court’s attention–just filing something is not enough, especially if you do not get a ruling on what you filed

Rule 11 Agreement

  • You must comply with the pertinent rules, and the complaint you raise on appeal must comport with the complaint you raised in the trial court

Summary Judgment (continuance)

The Blurbs

The complete failure to authenticate a document is a substantive complaint which can first be raised on appeal.

Evidence: “In considering the merits of Thomas’s motion, the starting point is the arbitration agreement. In re Estate of Guerrero, this court, sitting en banc, determined that a document submitted as evidence in a motion-to-compel-arbitration or summary-judgment context contains a substantive defect that renders it incompetent if there was a complete failure to authenticate the document. In re Estate of Guerrero, 465 S.W.3d 693, 705, 706-08 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (en banc). The authentication requirement applies to the alleged arbitration agreement Thomas submitted in support of the “Motion to Vacate and Set Aside Judgment.” See id. A party moving the trial court to compel arbitration must show an arbitration agreement exists and was executed. See id. at 703. Absent authentication of the alleged arbitration agreement, Thomas did not prove an agreement to arbitrate. See id. at 705. Thomas completely failed to authenticate the alleged arbitration agreement. The complete absence of authentication of this alleged agreement amounts to a substantive defect that is not waived by the failure to object and obtain a ruling in the trial court. See id. at 705, 706-08. Under this court’s precedent in In re Estate of Guerrero, this substantive defect makes the [*7] alleged agreement submitted in support of the “Motion to Vacate and Set Aside Judgment” incompetent to provide any evidence in support of the motion. See id. Because Thomas did not prove any arbitration agreement, the trial court did not err in denying the “Motion to Vacate and Set Aside Judgment” on the merits. See id. Accordingly, we overrule Thomas’s first issue.” Lewis v. Latson, No. 14-18-00316-CV, 2019 Tex. App. LEXIS 11232, at *6-7 (Tex. App.—Houston [14th Dist.] Dec. 31, 2019)

You have to bring your complaint to the trial court’s attention–just filing something is not enough, especially if you do not get a ruling on what you filed:

Rule 11 Agreement: “A general prerequisite to presenting a complaint for appellate review is that the record shows a timely request to the trial court and either a ruling from the court or a refusal to rule, accompanied by an objection to that refusal. TEX. R. APP. P. 33.1. The record before us does not reflect a timely request to enforce the Rule 11 agreement, or any ruling or refusal to rule by the trial court concerning enforcement of that agreement. Texas Tax asserts in its reply brief that, after filing the Rule 11 agreement, the parties were “immediately informed” that the trial [*15] court refused to enforce it. This assertion is not accompanied by any citation to the record, and our independent review of the record does not reveal anything showing that the Rule 11 agreement was ever presented to the trial court for enforcement or that the trial court refused to enforce it. In a similar situation, the Dallas Court of Appeals held that an appellant waived his complaint that the trial court refused to enforce a valid Rule 11 agreement because he failed “to move the trial court to enforce the Rule 11 agreement ‘with sufficient specificity’ and to obtain a ruling on that motion.” Rammah v. Abdeljaber, 235 S.W.3d 269, 273 (Tex. App.—Dallas 2007, no pet.) (quoting TEX. R. APP. P. 33.1(a)). We likewise hold that Texas Tax has waived its complaint on appeal that the trial court refused to enforce the parties’ Rule 11 agreement. Issue Three is overruled.” Tex. Tax Sols., LLC v. City of El Paso, No. 08-18-00126-CV, 2019 Tex. App. LEXIS 11175, at *14-15 (Tex. App.—El Paso Dec. 30, 2019)

You must comply with the pertinent rules, and the complaint you raise on appeal must comport with the complaint you raised in the trial court:

Summary Judgment(continuance): “Here, McKinney filed neither a motion for continuance of the hearing on HP Fannin’s and Midway’s no-evidence motion for summary judgment nor an affidavit explaining the need for further discovery before the hearing on such motion. McKinney did not ask the trial court to defer ruling on HP Fannin’s and Midway’s no-evidence summary-judgment motion. Indeed, McKinney filed nothing in response to HP Fannin’s and Midway’s no-evidence motion. Therefore, McKinney waived any complaint based on the need for discovery. See, e.g., Murtha v. Savvy’s, Inc., No. 02-18-00065-CV, 2019 Tex. App. LEXIS 4777, 2019 WL 2432150, at *3 (Tex. App.—Fort Worth June 6, 2019, pet. denied) (mem. op.) (“[A]t no time did Murtha ever bring to the attention of the trial court an affidavit or verified motion for continuance of the no-evidence summary judgment hearing.”); Berry, 2004 Tex. App. LEXIS 6492, 2004 WL 1631117, at *4 (appellant waived complaint that inadequate existed time for discovery when he did not file motion for continuance or affidavit explaining need for further discovery before summary-judgment hearing).

In addition, McKinney’s reliance on her verified motion to continue the trial and on the trial court’s trial-continuance ruling to preserve her issue is misplaced.  “[A] motion for continuance of a trial setting [*6] does not preserve error for our review of the granting of a no-evidence summary judgment motion when no continuance of the no-evidence summary judgment hearing was sought.” Murtha, 2019 Tex. App. LEXIS 4777, 2019 WL 2432150, at *3 (citing Chamie v. Memorial Hermann Health Sys., 561 S.W.3d 253, 257 (Tex. App.—Houston [14th Dist.] 2018, no pet.)).” McKinney v. HP Fannin Props., L.P., No. 14-18-00589-CV, 2019 Tex. App. LEXIS 11221, at *5-6 (Tex. App.—Houston [14th Dist.] Dec. 31, 2019)

I hope this helps.

Yours,

Steve Hayes

shayes@stevehayeslaw.com; www.stevehayeslaw.com; 817/371-8759

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