January 16, 2023
Dear Folks:
Table of Contents
I decided to mention this case, because it deals with whether one can waive a claim of waiver–and it points out that 33.1 applies to how appellants preserve a complaint “for appellate review,” not whether appellees can argue something in support of what a trial court did
Don’t sign a Judgment as “agreed” if you are only agreeing as to form–other aspects of the matter may conspire to hurt you
You have to get a ruling
Summary Judgment
You have to comply other pertinent rules–but if you do, you’re alright
Special Appearance
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Attorney
Constitution
Constitution
Evidence
Expert
Fiduciary
Findings and Conclusions
Pleading
Pleading
Procedure
Summary Judgment
Blurbs
I decided to mention this case, because it deals with whether one can waive a claim of waiver–and it points out that 33.1 applies to how appellants preserve a complaint “for appellate review,” not whether appellees can argue something in support of what a trial court did:
Waiver: “Zurich argues in its reply brief that appellees waived the issue of waiver of Zurich’s special appearance because appellees failed to argue at the trial court that Zurich waived its special appearance. Appellees were not required to advance this argument because, as we concluded, Zurich itself consented to the jurisdiction of the trial court. See Tex. R. Civ. P. 120a(2); ….Additionally, the Texas Rules of Appellate Procedure place the burden to preserve error on the appellant, not the appellee. See Tex. R. App. P. 33.1(a). Three cases cited by Zurich in support of its waiver argument all concern the waiver of argument by the appellant resulting from the appellant’s failure to object at the trial court. See PCC Sterom, S.A. v. Yuma Exploration Prod. Co., No. 01-06-00414-CV, 2006 Tex. App. LEXIS 8702, 2006 WL 2864478, at *2 (Tex. App.—Houston [1st Dist.] Oct. 5, 2006, no pet.); Int’l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 808 (Tex. App.—Fort Worth 1994, writ denied); Fountain v. Burklund, No. 03-01-00380-CV, 2001 Tex. App. LEXIS 8252, 2001 WL 1584011, at *3 (Tex. App.—Austin Dec. 13, 2001, pet. denied) (mem. op.). The other case cited by Zurich addresses defects in a special-appearance affidavit, which can be cured by amendment. See Grupo TMM, S.A.B. v. Perez, 327 S.W.3d 357, 361 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (citing Dawson-Austin, 968 S.W.2d at 322).” Zurich Am. Ins. Co. v. Masterworks Dev. Co., LLC, No. 14-21-00649-CV, 2023 Tex. App. LEXIS 193, at *7-8 (Tex. App.—Houston [14th Dist.] Jan. 12, 2023, no pet. h.)
Don’t sign a Judgment as “agreed” if you are only agreeing as to form–other aspects of the matter may conspire to hurt you:
Judgment: “This is exactly the case before us. In addition to counsels’ signatures underneath the word “Agreed” at the end of the order, the judgment is entitled “Agreed Order on Plaintiff [NAL]’s Motion for Summary Judgment.” See id.; see also Estate of Nielsen, No. 02-17-00251-CV, 2018 Tex. App. LEXIS 7915, 2018 WL 4625531, at *6 (Tex. App.—Fort Worth Sept. 27, 2018, pet. denied) (mem. op.) (concluding that any error in agreed order probating will and partitioning and distributing assets was waived where judgment was entitled “Agreed Order” and parties’ attorneys also signed order as “AGREED”)…. The trial court’s electronic docket entry which states “Rule 11 agreement on the record” further supports the conclusion that the agreed order is a consent judgment.
Nothing in the record indicates that the parties’ counsel signed the agreed order under protest or in any way indicated to the county court that it did not reflect the parties’ agreement. There is no language limiting the Davidsons’ consent as to form only, and the Davidsons did not revoke their consent at any time before the trial court rendered judgment on the agreed order. Absent an allegation and proof of fraud, collusion, or misrepresentation, the Davidsons “cannot now complain on appeal of that which [they] invited or induced by virtue of [their] attorney’s signature on the document itself.” 2018 Tex. App. LEXIS 7915, [WL] at *7 (“We hold that under these facts ‘agreed’ means what it says. The term is explicit and unmistakable.”). Because any error in the judgment has been waived, the agreed order leaves nothing to properly present for appellate review. Id. (citing Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.—Dallas 1997, no writ)).” Davidson v. N. Am. Lumber, LLC, No. 01-21-00445-CV, 2023 Tex. App. LEXIS 217, at *6-8 (Tex. App.—Houston [1st Dist.] Jan. 12, 2023, no pet. h.)
You have to get a ruling:
Summary Judgment: “We first consider whether Gutman preserved his objections to Jameson’s summary-judgment evidence and conclude that he did not. Because he failed to obtain a ruling on any of his evidentiary objections, he failed to preserve this issue for our review. See Chance v. CitiMortgage, Inc., 395 S.W.3d 311, 315 (Tex. App.—Dallas 2013, pet. denied) (in summary-judgment context, failure to obtain ruling in trial court on evidentiary objection waives objection on appeal).” Gutman v. Jameson, No. 05-21-01005-CV, 2023 Tex. App. LEXIS 252, at *3-4 (Tex. App.—Dallas Jan. 13, 2023, no pet. h.)
You have to comply other pertinent rules–but if you do, you’re alright:
Special Appearance: “In an alternative argument, Surge claims Brooks waived her mandatory venue objection because she filed her counterclaims in Harris County. We disagree because Brooks followed the due order of pleading. Under Texas Rule of Civil Procedure 86, a party’s objections to improper venue are waived “if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance motion provided for in Rule 120a.” Tex. R. Civ. P. 86. Brooks filed her counterclaims “[s]ubject to her [m]otion to [t]ransfer [v]enue.” We do not find any inconsistency in Brooks objecting to venue pursuant to Section 15.011 over Surge’s claims in Harris County while, in the same document containing her venue objections, she advanced related counterclaims and asserted they should be heard in Howard County along with Surge’s claims pursuant to Section 15.011.” In re Brooks, No. 14-22-00720-CV, 2023 Tex. App. LEXIS 117, at *10-11 (Tex. App.—Houston [14th Dist.] Jan. 10, 2023, no pet. h.)
All for now. Y’all take good care.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com