Error Preservation in Texas Civil Cases, January 11, 2021

January 11, 2021

Dear All:

Sorry for the delay. This pesky day job got in the way.   Thankfully, the error preservation case load from the courts of appeals was not as heavy in the first week of the New Year as it was in the last week of last year.

Table of Contents

Only on rare occasion does a court discuss whether a complaint was sufficiently specific, but here is one which did, at relative length

Jury Charge

Your complaint on appeal must comport with the complaint you made in the trial court

Attorney’s Fees

Discovery

You have to make your complaint in a timely fashion–but a time limit does not start running until your opponent complies with the rule which triggers the running of the time limit

Expert Report

You have to comply with the pertinent rules

Evidence

The Blurbs

Only on rare occasion does a court discuss whether a complaint was sufficiently specific, but here is one which did, at relative length:

Jury Charge: “ In voicing its objections to these definitions, Lubbock County cited the plaintiff’s proposed definition of imbecile in the case of Chamul. See Chamul v. Amerisure Mut. Ins. Co., 486 S.W.3d 116, 120 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The issue addressed in the Chamul case regarded whether the definition of imbecility that had been used by the Division of Workers’ Compensation in Chamul‘s case and generally was an appropriate definition. Id. at 119. That definition was taken from a 1991 dictionary which provides that imbecility “contemplates that the affected individual will not only require supervision in the performance of routine tasks, but will have a mental age of three to seven years.” Id. (quoting Webster’S Ninth New Collegiate Dictionary (1991)). The Chamul court rejected this definition because its overly narrow, age-specific definition would lead to absurd results wherein a claimant that suffered a traumatic brain injury that resulted in the claimant’s mental age being less than three years would be excluded from receiving lifetime income benefits. Id. at 127. In the present case, the definition of imbecility that was submitted to the jury did not include any sort of age-based limitation. [*8] Consequently, because Lubbock County’s reference to Chamul did not specifically identify an applicable ground for its objection to the definition of imbecile used by the trial court, we cannot conclude that this reference preserved any error regarding the definition. See Tex. R. Civ. P. 274.

In addition, Lubbock County cites Chamul for the definition of imbecility that was proposed by the claimant. A review of the opinion reveals that this proposed definition was not analyzed by the Chamul court. Consequently, we cannot understand how Lubbock County’s reference to Chamul put the trial court on notice as to the grounds of its objection. See id.

Finally, Lubbock County contends that, “[a] review of both counsels’ objections and the mutual one-name references of Chamal [sic] and Comacho [sic] indicates the off-record conference with the trial judge involved a detailed discussion on the case law and arguments regarding the proposed definitions.” As a reviewing court, we are constrained to review objections that may be found within the record. See Tex. R. App. P. 33.1. Consequently, we cannot presume that a discussion that was not made part of the record advised the trial court of the grounds for an objection to the court’s [*9] charge.

Because we do not find any specific identification of the grounds for Lubbock County’s objection to the trial court’s definitions of incurable imbecility and insanity, nothing is preserved for our review. We overrule Lubbock County’s second issue.” Lubbock Cty. v. Reyna, No. 07-19-00330-CV, 2021 Tex. App. LEXIS 33, at *7-9 (Tex. App.—Amarillo Jan. 5, 2021)

Your complaint on appeal must comport with the complaint you made in the trial court:

Attorney’s Fees: “In another argument under its fourth issue, THF contends that Gideon was not a “prevailing party” and therefore not entitled to recover attorney’s fees. See Tex. Labor Code Ann. § 21.259 (West 2015).  After trial, counsel for Gideon filed an application for attorney’s fees, in which he requested fees based on a reasonable hourly rate and the time he devoted to the case. THF filed an opposition to Gideon’s application, arguing that the fees sought by Gideon’s counsel “are excessive and should be reduced.” THF’s pleading raised objections to the amount of attorney’s fees sought, but not to Gideon’s entitlement to attorney’s fees. We see no indication in the record, and THF directs us to none, showing that THF raised its “prevailing party” argument before the trial court. THF has failed to preserve this issue for our review.” THF Hous. Mgmt. Corp. v. Gideon, No. 07-19-00343-CV, 2021 Tex. App. LEXIS 57, at *14 (Tex. App.—Amarillo Jan. 6, 2021)

Discovery: “To the extent the deposition topics at issue permit inquiry into relevant matters, Allstate argues alternatively that compelling the deposition is clear error because it is unduly burdensome, and Arredondo may obtain that evidence elsewhere. See Tex. R. Civ. P. 192.4(a). Courts have agreed that a corporate representative deposition is unreasonable and unduly burdensome in the UIM context on the content of a claimant’s records because the claimant has independent and superior access to his own records. . . . . Indeed, this court relied on [*18] similar reasoning in our 2018 Liberty County Mutual Insurance Company case. . . .In that case, however, the insurer asserted the argument in the trial court and developed a record to support it. Id. Here, in contrast, Allstate did not argue in the trial court that the deposition should be quashed or limited based on similar grounds and did not develop a record demonstrating that the relevant information sought by the deposition is already known by Arredondo, has already been obtained, or is obtainable through more convenient, less burdensome, or less expensive means. . . . . We cannot grant mandamus relief based on an argument that Allstate did not first present in the trial court.” In re Allstate Fire & Cas. Ins. Co., No. 14-20-00430-CV, 2021 Tex. App. LEXIS 71, at *17-18 (Tex. App.—Houston [14th Dist.] Jan. 7, 2021)

You have to make your complaint in a timely fashion–but a time limit does not start running until your opponent complies with the rule which triggers the running of the time limit:

Expert Report: “Appellants first argue the trial court erred in granting appellees’ motion to dismiss because they waived their right to object to Dr. Esterlein’s expert report by failing to file their objections within the twenty-one-day period permitted by section 74.351(a) of the Texas Civil Practice and Remedies Code. Appellees counter that appellants’ affidavit failed to trigger the twenty-one-day period because it was not accompanied by a curriculum vitae. We agree with appellees. . . . Here, it is undisputed that appellants failed to serve a curriculum vitae for Dr. Esterlein. On March 1, 2019, Appellants filed their original petition with Dr. Esterlein’s expert report attached. Appellees answered on April 2, 2019, the other defendants answered on April 4, 2019, thus Dr. Esterlein’s curriculum vitae was due to be [*7] served 120 days later. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). However, appellants failed to supplement their report with a curriculum vitae until after appellees filed their motion to dismiss. Therefore, the twenty-one day deadline outlined in the Texas Civil Practice and Remedies Code was never triggered, and appellees did not waive their objections to Dr. Esterlein’s expert report. See id.; Pena, 220 S.W.3d at 54.” Jacquez v. VHS San Antonio Partners, LLC, No. 04-20-00097-CV, 2021 Tex. App. LEXIS 37, at *4-7 (Tex. App.—San Antonio Jan. 6, 2021)

You have to comply with the pertinent rules:

Evidence: “Moreover, to preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 334 (Tex. App.—Dallas 2008, no pet.). While the [*4] reviewing court may be able to discern from the record the nature of the evidence and the propriety of the trial court’s ruling, without an offer of proof, we can never determine whether exclusion of the evidence was harmful. Id. at 335. Thus, when evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence in the record in order to complain of the exclusion on appeal. See Tex. R. Evid. 103(a); Bobbora, 255 S.W.3d at 335. When no offer of proof is made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exceptions to preserve the evidence for the appellate record. See TEX. R. APP. P. 33.2; Bobbora, 255 S.W.3d at 335. Failure to demonstrate the substance of the excluded evidence results in waiver. See TEX. R. APP. P. 33.1(a)(1)(B); Bobbora, 255 S.W.3d at 335. Because Self did not make an offer of proof or file a bill of exceptions to preserve the evidence for the appellate record, he has waived his complaint that the trial court erred in refusing to admit the video. We overrule Self’s second issue.” Self v. W. Cedar Creek Mun. Util. Dist., No. 12-20-00082-CV, 2021 Tex. App. LEXIS 66, at *3-4 (Tex. App.—Tyler Jan. 6, 2021)

All for now.  Y’all stay safe and well and have a great week.

Yours, Steve Hayes

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

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