Error Preservation in Texas Civil Cases, January 11, 2020

January 11, 2020

Dear All:

Hey there, Buckaroos!  Some old, some new, some reminders, as the Table of Contents shows.

Table of Contents

I will let you all figure out the extent to which the courts feel that the Supreme Court has relaxed the error preservation rules as they apply to motions to dismiss under the Texas Citizens Participation Act

TCPA

Your complaint must be timely–and I put this case in because of the warning it provides about segregating attorneys fees in a bench trial, as to which the courts of appeal are all over the lot

Attorneys Fees (segregation)

Your must present your complaint with sufficient specificity, and the complaint you raise on appeal must comport with the complaint you raised at trial.

Evidence

The Blurbs

I will let you all figure out the extent to which the courts feel that the Supreme Court has relaxed the error preservation rules as they apply to motions to dismiss under the Texas Citizens Participation Act:

TCPA: “Our error preservation rules generally require that “[a]s a prerequisite to presenting a complaint for appellate review” a party must make a timely complaint to the trial court that states “the grounds for the ruling that the complaining party sought from the trial court 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. Appellants point out that Appellees never challenged the existence of an alleged defamatory statement to the trial court [*9] and this failure precludes us from considering the issue further. We might agree, but for the Texas Supreme Court’s decision in Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018). There, the court relaxed the preservation rules for a party asserting a TCPA motion to dismiss, stating that the “[r]ules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.” Id. at 896. In Adams, the movant on a motion to dismiss generally claimed in both the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about “services in the marketplace” which was a subset of “matter[s] of public concern” as previously defined by the TCPA. He had not, however, specifically urged to the trial court that his speech touched upon “community or environmental well-being” which was another subset of matters of public concern, and the court of appeals considered that issue waived. Id. The Texas Supreme Court disagreed, stating that he “was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.” Id. at 896-97, citing Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised [*10] in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”) (emphasis in orig.). The court also placed emphasis on the statutory language of the TCPA that requires that a court “shall consider the pleadings and supporting and opposing affidavits.” (emphasis in orig.). Id. This suggests an independent duty on the court to look beyond the parties’ arguments to the pleadings and affidavits before it, to determine if the predicates for the TCPA are met.” Pacheco v. Rodriguez, No. 08-19-00129-CV, 2020 Tex. App. LEXIS 34, at *8 (Tex. App.—El Paso Jan. 6, 2020)

Your complaint must be timely–and I put this case in because of the warning it provides about segregating attorneys fees in a bench trial, as to which the courts of appeal are all over the lot:

Attorneys Fees (segregation): “Because evidence of unsegregated fees is some evidence of segregated fees, Tony Gullo Motors, 212 S.W.3d at 314, a strong argument can be made that (i) a failure to segregate complaint is essentially a factual sufficiency of the evidence challenge [*34] and thus (ii) no error preservation is necessary in the bench trial context. See Tex. R. App. P. 33.1(d). But we need not decide that question because we recently held in a bench trial appeal that a failure to segregate challenge was preserved by an objection that was made after the court’s ruling awarding fees but before final judgment. Anderton v. Green, 555 S.W.3d 361, 372 n.4 (Tex. App.-Dallas 2018, no pet.). Here, we conclude that appellants satisfied any preservation requirement by pointing out the problem during closing argument and in their post-trial filings.” Guillory v. Dietrich, No. 05-18-00504-CV, 2020 Tex. App. LEXIS 35, at *33-34 (Tex. App.—Dallas Jan. 6, 2020)

Your must present your complaint with sufficient specificity, and the complaint you raise on appeal must comport with the complaint you raised at trial:

Evidence: “Father’s objection at trial to the admission of PX-7 follows:

The—the exhibit that the State would like to offer requires a predicate that has not been laid. It’s hearsay as it stands and the business records affidavit does not cure the hearsay within the document. Specifically, what we’re objecting to is their –the contents of the document, claiming the document is something that’s created in the ordinary course of business with a business of scientific analysis that requires expert testimony. [Father] does not have the ability or the personal knowledge to lay that predicate. They have failed to lay that predicate. They’re asking the court hold them to the admissibility standard under 705(b) case law provided previously to the court under Robinson. We’re objecting to this evidence on all of those basis [*15] [sic].

This objection raised the issues of claimed hearsay in PX-7 and the Department’s failure to “lay a predicate” for the drug test by expert testimony. While his objection referred to Rule of Evidence 705(b), Father did not specifically request a hearing thereunder, and while he referred to Robinson, he did not specify how the exhibit was purportedly deficient and inadmissible, or what predicate an expert was required to lay. In contrast, on appeal Father specifically complains that the exhibit contained no evidence demonstrating that the scientific testing methods used “were properly supervised or maintained” and that an expert witness was required to explain how the “underlying facts and data . . . relate to the relevant time period of the hair follicle.” We conclude that his objection at trial does not comport with the issues he raises on appeal and that he has, accordingly, waived the issues. See Elness Swenson Graham Architects, 520 S.W.3d at 159.” F. C. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00625-CV, 2020 Tex. App. LEXIS 119, at *14-15 (Tex. App.—Austin Jan. 9, 2020).

All for now.  Y’all have a good weekend.

Yours, Steve Hayes

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

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