Error Preservation in Texas Civil Cases, January 20, 2021

January 30, 2021

Dear All:

Well, the first month of the new year certainly whizzed by.  I hope all of you remain safe and well and busy.

Table of Contents

Some things–most prominently, subject matter jurisdiction–may first be raised on appeal

The complaint you make on appeal must be one you raised in the trial court, and not some additional complaint

Appellate Attorney’s Fees

You have to get a ruling on your complaint

Attorney’s Fees

You have to comply with the pertinent rules

Summary Judgment Evidence

The Blurbs

Some things–most prominently, subject matter jurisdiction–may first be raised on appeal:

Subject Matter Jurisdiction: “Based on our reading of Miranda and Garcia, we conclude that the DMV presented  a proper plea to the jurisdiction that challenged the jurisdictional facts of Bustillos’s claim and, within the jurisdictional pleading, the DMV properly addressed the burden-shifting analysis required of the court’s review. . . . With evidence attached, the DMV’s plea to the jurisdiction challenged the court’s subject matter jurisdiction over the retaliation suit based on insufficient evidence to establish a waiver of the agency’s immunity from suit. As a preliminary matter, we decline to find that the DMV failed to adequately apprise the court below of its jurisdictional argument such that it wholly waived its complaint for review.  See Tex. R. App. P. 33.1(a)(1)(A) (requiring only that a party’s request, objection, or motion state the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint). And even still, as further pointed out by the DMV in its reply, it is well settled that subject matter jurisdiction can be raised for the first time on appeal. . . . Consequently, an appellate court must consider challenges to the trial court’s subject matter jurisdiction on interlocutory appeal, regardless of whether such challenges were presented to or determined by the trial court.” Tex. DMV v. Bustillos, No. 08-18-00165-CV, 2021 Tex. App. LEXIS 514, at *16-18 (Tex. App.—El Paso Jan. 25, 2021)

The complaint you make on appeal must be one you raised in the trial court, and not some additional complaint:

Appellate Attorney’s Fees: “Permit Partners raises two additional complaints about Sauer’s [*17] evidence on attorney’s fees: . . . (2) [the attorney’s fee affidavit] outlined time billed for Sauer’s “unsuccessful” summary-judgment motion and for defending against Permit Partners’s claims, which are not “proper” bases for attorney’s-fee awards. We overrule Permit Partners’s complaint that the evidence was insufficient to support an award of appellate attorney’s fees. In his affidavit, Icenogle averred as to the fees he expected Sauer to incur as “reasonable and necessary” in case of an appeal by Permit Partners. He also averred that he had been a licensed Texas attorney since 1983, with the majority of his practice concentrated in Travis County, and that he was “fully cognizant and aware of the type and nature of attorneys’ fees reasonably charged for legal services” in Travis County. Permit Partners did not object to this affidavit or introduce any controverting evidence, and Permit Partners has not cited any relevant authority requiring more specificity about an attorney’s appellate background when opining about appellate attorney’s fees. Accordingly, the affidavit of Sauer’s attorney constituted legally and factually sufficient evidence to support the trial court’s award of appellate attorney’s fees in the event of unsuccessful appeals by Permit Partners. . . . We also overrule Permit Partners’s contentions about the “improper” bases for Sauer’s attorney’s fees because it did not preserve error as to the complaints. See Tex. R. App. P. 33.1. However, even if its general contention in its motion for new trial that Sauer “failed to segregate her fees between recoverable and unrecoverable claims” could be construed to encompass these complaints, Permit Partners does not cite any applicable authority supporting a reversal of the award on those bases.” Permit v. Sauer, No. 03-19-00059-CV, 2021 Tex. App. LEXIS 700, at *16-18 (Tex. App.—Austin Jan. 29, 2021)

You have to get a ruling on your complaint:

Attorney’s Fees: “ Tenant and Guarantors also complain that the trial court improperly considered post-trial “affidavit testimony or additional documentation” in making its attorney’s fees award to Landlord. Because they did not obtain a ruling on this objection in the trial court, they have waived it on appeal. See TEX. R. APP. P. 33.1.” Lakepointe Pharmacy #2, LLC v. Forney Deerval, LLC, No. 05-19-01224-CV, 2021 Tex. App. LEXIS 572, at *15 n.4 (Tex. App.—Dallas Jan. 26, 2021)

You have to comply with the pertinent rules:

Summary Judgment Evidence: “Van Deelen [*20] further argues he was prejudiced because he was not permitted to discuss his evidence. Van Deelen does not point to any place in record where the trial court excluded any evidence, and our independent review has not revealed any such trial-court action. For Van Deelen to prevail on this issue on appeal, the record must show that he offered evidence and that the trial court actually excluded the evidence. Tex. R. App. P. 33.1(a); . . . . The record shows neither. Van Deelen offered documentary evidence in response to the motions for summary judgment. Van Deelen’s evidence was not excluded by the trial court. Van Deelen does not point to any summary-judgment evidence that was excluded. Given Van Deelen’s failure to preserve error on his exclusion-of-evidence complaint, he cannot prevail on appeal.” Van Deelen v. Tex. Workforce Comm’n, No. 14-18-00489-CV, 2021 Tex. App. LEXIS 524, at *19-20 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021)

All for now.   Y’all stay safe and well.

Yours, Steve Hayes; 817/371-8759;


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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