Error Preservation in Texas Civil Cases, January 22, 2022

January 22, 2022

Dearly Beloved:

Table of Contents

Sometimes, your complaint can be specific enough because of the way you highlighted an attachment to your motion for new trial–but I’d still recommend specifically describing the complaint in the motion

Judgment

If you announce you are ready to proceed, you will probably have waived the motion for continuance as to which you get no ruling

Continuance

I think I missed earlier cases to this effect, but apparently one can first raise on appeal a complaint about the untimeliness of a hearing on a TCPA motion

Texas Citizen’s Participation Act

You have to obtain a ruling on your complaint in the trial court

Discovery

While I won’t profile it here, an opinion reaffirmed that you must make complaint about the following in the trial court:

Quasi-Estoppel

Blurbs

If you announce you are ready to proceed, you will probably have waived the motion for continuance as to which you get no ruling:

Continuance: “First, the Family Members waived their motions for continuance. Although the Family Members filed written, verified motions for continuance, see Tex. R. Civ. P. 251, during the hearing on those motions, the Family Members advised the trial court that they were “fine with” moving forward on the notice-related pleas. Having made that representation to the court, they cannot reverse that position on appeal; the Family Members waived their motions for continuance.9 See Tex. R. App. P. 33.1(a)(1);” Osman v. City of Fort Worth, No. 02-21-00117-CV, 2022 Tex. App. LEXIS 400, at *11 (Tex. App.—Fort Worth Jan. 20, 2022)

Sometimes, your complaint can be specific enough because of the way you highlighted an attachment to your motion for new trial–but I’d still recommend specifically describing the complaint in the motion:

Judgment: “Edward argues that the deed of trust [attached to the Final Divorce Decree] prohibits him from selling the Tiki house without Cynthia’s permission and that it adds costs and attorney’s fees in the event of default. In his motion for new trial he stated that the deed of trust “contains numerous provisions, obligations, burdens and other impositions” that were contrary to the MSA. He then highlighted the sections of Exhibit D that he argued were erroneous. n. 2 n. 2Cynthia argues that Edward did not preserve this error for our review because his motion for new trial did not specifically explain his complaints regarding Exhibit D. While the body of his motion did not explain the specific provisions, he highlighted the provisions he believed were erroneous on the exhibit and submitted it as an attachment to his motion. The trial court was on notice of what specific provisions Edward was complaining of and thus, he preserved this issue for our review. See Tex. R. App. P. 33.1.” Glynn v. Glynn, No. 01-20-00371-CV, 2022 Tex. App. LEXIS 353, at *16 n.2 (Tex. App.—Houston [1st Dist.] Jan. 20, 2022)

I think I missed earlier cases to this effect, but apparently one can first raise on appeal a complaint about the untimeliness of a hearing on a TCPA motion:

Texas Citizen’s Participation Act: “Based on the record before us, we conclude that, because the TCPA hearing was untimely under section 27.004,9 Vertical Holdings forfeited its TCPA motion, and the trial court did not err by denying it….Although LocatorX did not raise any issue in the trial court regarding the hearing’s untimeliness, this fact is of no consequence to our analysis. See Grubbs v. ATW Invs., Inc., 544 S.W.3d 421, 422 (Tex. App.—San Antonio Dec. 20, 2017, no pet.) (rejecting movant’s waiver argument regarding non-movant’s failure to object and affirming order denying TCPA motion based on hearing’s untimeliness). In rejecting the movant’s waiver argument, our sister court stated:

This argument, however, ignores that [the TCPA movant] had the burden to timely obtain a hearing in his efforts to invoke the TCPA’s protections. It was not incumbent upon [the non-movant] to ensure that [the movant] met his burden or even to inform the trial court of [the movant’s] failure. Instead, [the movant’s] ‘failure to meet [the procedural] requirements result[ed] in [his] forfeiting the statute’s protections.’

Grubbs, 544 S.W.3d at 422….We agree with that analysis.” Vertical Holdings, LLC v. LocatorX, Inc., No. 05-21-00469-CV, 2022 Tex. App. LEXIS 291, at *11-12 (Tex. App.—Dallas Jan. 14, 2022)

You have to obtain a ruling on your complaint in the trial court:

Discovery: “In a single cross-appeal issue iComposite asks that if we reverse the trial court’s denial of Zhao’s special appearance, we remand the case back to the trial court to allow iComposite an opportunity to conduct additional jurisdictional discovery and to possibly amend its pleadings. IComposite conditionally asked for this in the trial court but never obtained a ruling from the trial court. IComposite cites only Rule 38.2(b)(2) of the Texas Rules of Appellate Procedure in support of this argument. See Tex. R. App. P. 38.2(b)(2). This rule, however, addresses when a cross-point requires the taking of additional evidence—not when a party had the opportunity to, but failed to produce sufficient evidence at a trial or hearing. IComposite provides no argument or authority that would suggest otherwise. IComposite also offers no other argument or authority that would authorize such a remand. We therefore overrule iComposite’s cross-appeal issue.” Zhao v. iComposite, LLC, No. 14-20-00605-CV, 2022 Tex. App. LEXIS 355, at *20 (Tex. App.—Houston [14th Dist.] Jan. 20, 2022)

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

Yours,

Steve Hayes

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

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