Error Preservation in Texas Civil Cases, January 27, 2020

January 26, 2020

Dear All:

I skipped a week, and it appears the bottom fell out. But there is a lot of stuff here to contemplate:

Table of Contents

At least in a divorce proceeding, the lack of pleadings to support portions of a default judgment is a complaint which one can first raise on appeal

Default Judgment/Pleadings

Here are a couple of complaints which were preserved–and the court’s reasoning instructs us on what to do and why

Discovery
Discovery

The following lengthy discussions of why objections to a jury charge did not preserve error is worth reading, if for no other reason to remind us of the challenge we face in preserving a complaint about the charge

Jury Charge

Jury Charge

Keep in mind–a motion which is not brought to the trial court’s attention will not preserve the complaint raised by the motion. Getting a ruling on the motion shows you brought it to the trial court’s attention

Continuance/Jury Trial
DTPA

You have to comply with the pertinent rules

Findings

You have to get a ruling on your complaints

Evidence
Proof

The Blurbs

At least in a divorce the lack of pleadings to support portions of a default judgment is a complaint which one can first raise on appeal:

Default Judgment/Pleadings: “As an initial matter, Benavides argues Garcia waived her first and third issues by failing to raise them in her motion for new trial. A default divorce decree must be supported by the pleadings. Lynch v. Lynch, 540 S.W.3d 107, 134-35 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citing Tex. R. Civ. P. 301; Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). “‘This rule is a specific application of the more general principle that a party may not be granted relief in the absence of pleadings to support that relief, unless the request for relief is tried by consent—a situation that cannot occur in the context of a default judgment.'” Id. (quoting In re Marriage of Day, 497 S.W.3d 87, 90 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)). Therefore, a challenge to the sufficiency of the pleadings may be raised for the first time on appeal. See Day, 497 S.W.3d at 90.

Further, although no evidence is generally required to support a default judgment, the general rule is limited in the divorce context by section 6.701 of the Family Code, which provides: “In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer.” Tex. Fam. Code Ann. § 6.701; accord Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.—Dallas 2004, no pet.); Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2001, no pet.). In a divorce case, a petitioner is required to prove up the material allegations in the petition in order to obtain a default divorce, and a respondent may raise evidentiary challenges for the first time [*4] on appeal. Agraz, 143 S.W.3d at 552; Osteen, 38 S.W.3d at 814.

Here, because Garcia’s challenges to the default decree may be raised for the first time on appeal, we conclude she has not waived them and turn to the merits.” Garcia v. Benavides, No. 04-19-00451-CV, 2020 Tex. App. LEXIS 350, at *3-4 (Tex. App.—San Antonio Jan. 15, 2020)

Here are a couple of complaints which were preserved–and the court’s reasoning instructs us on what to do and why:

Discovery: “Real party responds that relators waived their objection [about the overbreadth of the discovery requests] because they did not present it to the trial court and that, in any event, their request did not extend back thirty or more years and was thus not overbroad in time. We disagree. Real party first sent a subpoena to Longmont, which timely served written objections to each of real party’s discovery requests, including an objection that the requests were “not limited to . . . any relevant time period.” Thus, real party was on notice that at least one relator objected to the time period of the requests. Moreover, relators’ motion for protection and to quash—which attached Longmont’s written objections as an exhibit—continued the objection by heavily relying on the timeline of the allegations made in the underlying lawsuit to argue that real party’s requests were overbroad and irrelevant. See Nat’l Lloyds Ins. Co., 507 S.W.3d at 223 (finding no waiver where party resisting discovery “objected from the earliest instance,” clearly stated objections and extent it refused request, and continued to object). Thus, relators preserved this issue for our review. Tex. R. App. P. 33.1(a).” In re Stagner, No. 01-18-00758-CV, 2020 Tex. App. LEXIS 630, at *10 n.6 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020)

Discovery: “Real party’s mandamus response argues that relators waived this objection [that their income tax returns were not relevant nor material], but we disagree. Relators’ motion for protection and to quash argued that real party’s requests for tax returns are “wholly irrelevant to this lawsuit” and objected to the confidential nature of the documents that real party sought, including tax documents. Thus, relators did not waive their objection. SeeTex. R. App. P., 33.1(a).” In re Stagner, No. 01-18-00758-CV, 2020 Tex. App. LEXIS 630, at *15 n.7 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020)

The following lengthy discussions of why objections to a jury charge did not preserve error is worth reading, if for no other reason to remind us of the challenge we face in preserving a complaint about the charge:

Jury Charge: “Our decision point in this case, however, turns on the preservation of error. The Trust advances several arguments on why the charge is erroneous. It also argues in its brief that the error was reasonably calculated to and probably did cause rendition of an improper judgment. Burnet Holdings does not respond to those arguments. Instead, it pitches its response solely on the claim that the Trust waived any error by consenting to the charge at an informal charge conference and failing to make a sufficient objection at the formal charge conference. To explain those claims, we need to add some detail into how the charge was put together.

 Rule 271 provides that the court will prepare the charge. Tex.R.Civ.P. 271. The trial court here apparently had the assistance of a court staff attorney who worked with the parties in formulating the [*13] charge. During trial, that staff attorney circulated a draft charge. At the time the charge was circulated, Question Seven asked, “Did any of the following parties intentionally create a public nuisance?” (emphasis added), which was followed by a definition of the term “intentionality.” The prefatory instructions also contained a definition for “public nuisance” that described “conduct unreasonably interfer[ing] with a public right or public interest.” That draft charge also defined the term “unreasonable interference.” The trial court’s staff attorney emailed the draft with an explanatory note stating that a “statutory public nuisance” claim required the intentionality requirement to, (1) comport with the statutory language, and (2) for it to serve as a predicate for the conspiracy claim that the Trust was also pursuing. The Trust’s counsel made non-substantive edits to this portion of the draft charge and replied back to the staff counsel that his analysis “sounds good.”

The trial court’s final charge, as we note above, differed from this earlier draft. The final charge omitted any mention of a public nuisance, dropped the definition of public nuisance and unreasonable interference, [*14] and instead asked about a common nuisance. At the final charge conference, the Trust counsel made this objection to the charge:

[TRUST’S COUNSEL]: And Plaintiff objects to the language in Question No. 7. The language, “Did any of the following parties intentionally maintain a common nuisance,” should be, “Did any of the following parties maintain, own, use, or is a party to the use, of a common nuisance,” because it’s confusing.

THE COURT: Overruled.

Texas Rules of Civil Procedure 274 provides, “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.” Tex.R.Civ.P. 274. And under Rule 274, “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Id. The rule creates a two-pronged test: objections to the charge must specify the error and the legal basis of the objection. Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 892 (Tex.App.–El Paso 2005, pet. denied), citing Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). Our Court has written that Rule 274 is strictly construed and embodies a “rigorous standard for sufficiency of charge objections.” Abell, 157 S.W.3d at 892.

Burnet Holdings first urges that opposing counsel’s email note that an earlier draft “sounds good” signaled its desire to include the intentionality verbiage [*15] and instruction. HN6 Under what is termed the invited error doctrine, a party cannot complain on appeal about an action that the trial court took at the request of the complaining party. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); N.E. Texas Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (Tex.[Comm’n Op.] 1942) (” It is an elementary principle supported by many authorities that a litigant cannot ask something of a court and then complain that the court committed error in giving it to him.”). We decline to apply that doctrine here because the draft charge that was circulated, and commented on, was different from the final version. The first draft charge asked about “public nuisance” and provided a definition for the same, while the final charge asked about “common nuisance” with its own set of definitions. The invited error doctrine applies when a party “unequivocally take[s] a position in the trial court that is clearly adverse to its position on appeal.” Tittizer, 171 S.W.3d at 862, citing Am. Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 589 (Tex.1975) (“One of the requirements for application of the doctrine of judicial estoppel is that the statement must be deliberate, clear, and unequivocal.”). Given the change in the charge language, and vagaries in the terse email reply of “sounds good,” we decline to find estoppel in that fact alone.

Burnet Holdings’ second argument is that the objection [*16] made at the charge stage fails to comply with Rule 274 because it never told the trial court why the charge was wrong. HN7 And significantly, the Texas Supreme Court in Castleberry v. Branscum specifically held that an objection stating that an instruction “may confuse the jury” or “prejudice the defendant” was too general because it did not explain “why the instruction [was] legally incorrect[,]” or “how it would confuse the jury or prejudice the defendants.” 721 S.W.2d at 277. Similarly, the Trust here objected that a different Question Seven should be used because otherwise the question is “confusing.” That objection, however, never explains why the question as worded is confusing, nor does it explain how the addition of the intentionality requirement adds an element not required by Chapter 125, or conflicts with the “knowingly” standard already found in the instructions. We conclude that the bare objection that the charge as given was “confusing” did not adequately preserve error. Castleberry, 721 S.W.2d at 277; see also Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014) (objection that did not explain Casteel problem with submission failed to preserve that complaint).

The Trust responds, however, that its oral recitation of a form of the question (dictated into the record) should have [*17] alerted the trial court to the problem with the charge. HN8 And indeed, we generally require a timely objection “stat[ing] 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[.]” (emphasis added). Tex.R.App.P. 33.1. In effect, the Trust argues that the alternate oral submission implicitly demonstrates the trial court’s awareness of the complaint now urged on appeal. The alternate submission did not contain the word “intentional” nor a definition of that term. Had the trial court placed a transcript of the alternate submission side by side with the given charge, that distinction might have become apparent. But the alternate submission differed in another significant way with the charge as given. Question Seven asked whether any defendant “maintain[ed] a common nuisance.” The alternate submission added other ways in which the defendants might have been connected to a common nuisance: “Did any of the following parties maintain, own, use, or is a party to the use, of a common nuisance[?]” (emphasis added). It is just as likely that the trial court [*18] might have perceived this added verbiage as the gist of the objection.

Certainly, the trial court’s appreciation of a party’s position, and rejection of it in a timely fashion, is the cornerstone of preservation. State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Yet we cannot ignore the realities of trial practice.  As the court wrote in Cruz v. Andrews Restoration, Inc.:

Trial courts lack the time and the means to scour every word, phrase, and omission in a charge that is created in the heat of trial in a compressed period of time. A proposed charge, whether drafted by a party or by the court, may misalign the parties; misstate the burden of proof; leave out essential elements; or omit a defense, cause of action, or (as here) a line for attorney’s fees. Our procedural rules require the lawyers to tell the court about such errors before the charge is formally submitted to a jury. Tex. R. Civ. P. 272. Failing to do so squanders judicial resources, decreases the accuracy of trial court judgments and wastes time the judge, jurors, lawyers, and parties have devoted to the case.  364 S.W.3d 817, 829-30 (Tex. 2012). Consequently, the court in Cruz concluded that the mere filing of a pretrial charge that included a subpart of a question that was omitted from the final charge did not sufficiently [*19] alert the trial court to the issue. Id. at 831. By the same token, the oral dictation of the text of a question at the same time charge objections were made did not alert the trial court to the problem with its existing question without something more. Had counsel explained why its suggested charge more closely followed the statute, we might view the situation differently. But leaving the task of discerning the differences between the two forms of the questions to the trial court simply asks too much.

The Trust directs us to Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. 2003) as support for the adequacy of its objection. The critical issue in that case was whether a farm was run a certain way for at least one year before suit was filed–if it was, the suit was barred, and if not, a repose statute did not apply. Rather than inserting the one-year date, the trial court used a date that was off by more than ten years. The aggrieved party had objected to the charge’s wording, but only by a “naked” objection to the date used. Id. at 38. The party had also requested a different question that used the correct date but was otherwise defective in its wording. The court of appeals found a waiver. The Texas Supreme Court disagreed, noting that the complaining party [*20] had “specifically objected to the date submission.” Id. at 39. We nonetheless find the case distinguishable. The party explicitly objected to the key term in the question as given (the date) and then called the court’s attention to its requested question that used the correct date. Given the importance of the date to the statute of repose defense, there is little doubt the trial court would have been aware of the significance of the date. Here by contrast, there was no explicit reference to the inclusion of the objectionable term (the intentionality element) and the trial court was left to discern that on his own.

The Texas Supreme Court reminds us that “[o]ur procedural rules are technical, but not trivial.” Burbage, 447 S.W.3d at 258. While we construe those rules liberally so that the right to appeal is not lost unnecessarily, [*21] “we cannot make assumptions” when an objection fails to explain the nature of the error. Id. “Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.” Id. Because the objection here was not sufficient to apprise the trial court of the issue now claimed as error, we overrule Issue One.” Meyers v. 8007 Burnet Holdings, LLC, No. 08-19-00108-CV, 2020 Tex. App. LEXIS 560, at *12-21 (Tex. App.—El Paso Jan. 22, 2020)

Jury Charge: “Given the foregoing factual scenario, the trial court submitted to the jury Questions 7 and 9. Again, through the former, it asked: “Did [Meat] fail to comply with their obligations to [USA] arising out of the cattle transactions described below?” The “cattle transactions described below” were those “Cattle specifically described in signed promissory notes[.]” Through Question 9, the jury was asked a like question, that being whether “[Meat] fail[ed] to comply [*12] with their obligations to [USA] arising out of the cattle transactions described below.” This time, though, the “cattle transactions described below” were the “Cattle not specifically described in signed promissory notes[.]”

To reiterate, we must afford a jury question a reasonable, as opposed to technical, interpretation from the viewpoint of a juror untrained in the law but exercising common sense. And, the reasonable, commonsensical jury having seen the nature of the business relationship between USA and Meat and the issues being tried would lead us to construe both Questions 7 and 9 as encompassing what we call the oral umbrella agreement and the “obligations” of Meat under it. Those “obligations” consisted of the general, nonspecific, overall promise to pay USA for the expenses of acquiring and rearing the cattle. Indeed, the jury instruction accompanying Question 8 indicates as much.

Question 8 directed the jury to calculate the damages recoverable when Meat failed to abide by its “obligations.” Those damages were limited to the “difference, if any, between the sales proceeds received by [USA] when the cattle were sold and USA’s purchase, feeding and care costs, and USA’s cost [*13] to finance these items.”

Moreover, Meat did not object to Question 9 before the trial court submitted it to the jury. Though the same is not true regarding Question 7, the objections uttered were limited. Meat simply asserted that the question 1) “should be submitted in broad form”; 2) “constitutes a comment on the weight of the evidence in connection with Defendant’s theory that Plaintiffs could not rely on the projections provided to them by Defendant for the purchase of the individual lots of cattle”; and, 3) “it will nudge the jury in the direction of the Defendant’s theory.” As can be seen, nothing was said about the question being nonspecific, omitting elements, being immaterial, referring to an agreement other than one founded on the promissory notes, referring to a nonexistent agreement, or the like. So, its current objections about the questions’ wording and their failure to specify the “obligations” at issue were waived. See Tex. R. Civ. P. 274 (stating that a party objecting to a charge must specify the objectionable matter and the grounds of the objection and that any complaint concerning any defect, omission, or fault in the pleading is waived unless specifically included in the objection); [*14] Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014) (stating the same).

And, because each question apparently related to the obligations imposed via the general, nonspecific oral umbrella agreement as opposed to the individual promissory notes, it matters not that Question 7 said nothing about the elements underlying a cause of action to recover upon a note. See TrueStar Petrol. Corp. v. Eagle Oil & Gas Co., 323 S.W.3d 316, 319 (Tex. App.—Dallas 2010, no pet.) (stating that,  to prevail, a plaintiff must prove the note in question, that the defendant signed it, that the plaintiff is the legal owner and holder of the note, and that a certain balance is due and owing). So, the contention about the omission of those elements is inconsequential.

As for the contention that the answer to Question 7 was immaterial because it posed a question of law, we note the following. Meat said nothing of that when given the opportunity to object during the charge conference. Thus, it too was waived. See Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 627-28 (Tex. App.—Dallas 2004, pet. denied) (wherein the appellant argued that “the trial court erred in submitting the question to the jury because whether a contract has been breached is a question of law” and holding the Mitchells waived the complaint by failing to assert it before the charge was read to the jury); accord Ibarra v. City of Laredo, No. 04-10-00665-CV, 2012 Tex. App. LEXIS 5741, at *5-6 (Tex. App.—San Antonio July 18, 2012, no pet.) (mem. op.) (holding the [*15] same).

We further note that both the existence of a contract and its breach are questions of fact, unless undisputed. See Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010) (per curiam); Austin Tapas, L.P. v. Performance Food Grp., Inc., No. 03-18-00680-CV, 2019 Tex. App. LEXIS 6589, at *5 (Tex. App.—Austin Aug. 1, 2019, no pet.) (mem. op.); Berg v. Wilson, 353 S.W.3d 166, 174 (Tex. App.—Texarkana 2011, pet. denied). Meat did not concede the existence of the umbrella agreement and the “obligations” arising under it to pay for the lots of cattle and expenses related to caring for them. Nor did it concede that it breached those obligations. Thus, such topics were questions of fact for the jury to decide, not questions of law for the court.

Regarding Jury Question 9, Meat believed it also to be immaterial and defective for reasons similar to the purported immateriality and defectiveness of Question 7. Yet, those complaints too should be overruled for the very same reasons the complaints about Question 7 were.

Meat also complained here that Question 9 was immaterial because there was “no record evidence of any specific terms of any alleged oral contract.” Admittedly, our perusal of the record uncovered no express contract between it and USA delineating the specific terms of an agreement.  Yet, contracts arise in various ways, one of which is through a course of conduct. See Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex. 1981) (stating that “[e]ven prior to the enactment [*16] of the [Uniform Commercial] Code it was recognized in Texas that a contract could be formed by conduct” and “[s]uch a contract is one implied in fact”). An implied contract arises when the parties’ acts indicate, according to the ordinary course of dealing and common understanding, that there is a mutual intention to contract. Id.; Stewart & Stevenson, LLC v. Galveston Party Boats, Inc., No. 01-09-00030-CV, 2009 Tex. App. LEXIS 8582, at *28 (Tex. App.—Houston [1st Dist.] Nov. 5, 2009, no pet.) (mem. op.). The record at bar contains evidence of 1) Meat repeatedly approaching USA to buy cattle for it; 2) USA buying and raising the cattle; 3) the cattle later being sold; and, 4) USA forwarding the proceeds of the sale to Meat after deducting the costs it incurred in buying and raising the cattle. If nothing else, that is some evidence of an ordinary course of dealing evincing a common understanding and mutual intention to contract. That is, it is some evidence of a contract between the parties arising by implication. It is also some evidence of an agreement by Meat to repay USA for buying, raising, feeding, and selling the lots of cattle it sought. And, not until the cattle market dropped many months after the parties began their business relationship did Meat deign to question the arrangement. So, Meat is mistaken in arguing that Question 9 was [*17] immaterial because there was no record evidence of a contract.

As for Meat’s current complaints about Question 10, we start with the one about it being immaterial because there was no evidence of a contract between the parties. Question 10 tracked the language of Question 8; through it, the jury was asked to determine the sum of money, if any, payable which “would fairly and reasonably compensate [USA] for its damages, if any, that resulted from” Meat’s failure to comply with the “obligations” encompassed within Question 9. And, because there was evidence of a contract between Meat and USA, as we concluded in the immediately preceding paragraph, Question 10 is not immaterial for the reason Meat proffered.

As for the complaint that Question 10 was immaterial because it incorporated the wrong measure of damages, Meat did not complain about the measure used at trial. Thus, it waived the complaint here. Moreover, this complaint, too, is premised on the notion of there being no evidence of a contract between Meat and USA; yet, as previously discussed, the record contains such evidence.

As for the complaint about Question 10 being immaterial because of the supposed “absence of any valid [*18] predicate finding that [Meat] breached the terms of [an] alleged contract with USA,” it is unaccompanied by substantive analysis and, therefore, waived. Anderson v. Safeway Tom Thumb, No. 02-18-00113-CV, 2019 Tex. App. LEXIS 4284, at *7 (Tex. App.—Fort Worth May 23, 2019, pet. denied) (mem. op.) (stating that HN7 “[i]n the absence of appropriate record citations or a substantive analysis, a brief does not present an adequate appellate issue”). Furthermore, the question actually is predicated upon an affirmative answer to Question 9, and the latter encompassed whether Meat failed to perform its “obligations” to USA arising from the cattle transactions. The jury answering Question 9 affirmatively means that the predicate to Question 10 is present. So, we overrule this complaint, too.

As for the contention that no evidence supports the jury’s answer to Question 10, we disagree. A witness for USA testified that $221,823 and change was owed to it; the jury happened to award that exact amount. Furthermore, the multiple components of that sum were explained in USA’s Exhibit 500.

As for the contention that no evidence appears of record indicating that the damages awarded in Question 10 were reasonable and necessary, the complaint is premised on the conclusory argument that, “by [*19] its submission of Question 10, USA is seeking recovery in the nature of ‘remedial damages.'” Why the damages sought were remedial and only remedial went unexplained. Again, Meat merely concluded as much. Thus, the issue was inadequately briefed, and we overrule it. See id.

Regarding the complaints about Question 11, we note the following. They too concern allegations about “compositional problem[s]” akin to Questions 7 and 9 and about which Meat failed to object during the charge conference. Consequently, those “compositional problem[s]” were waived, too. As for the complaint that Question 11 said nothing about the terms of the agreement underlying the corn purchases encompassed by the question, the record contains evidence of Meat simply asking USA, via email, to buy the corn. Other evidence indicates that the corn was to be fed to Meat’s cattle. The rather loose nature of the transactions comports with the overall loose nature of the business relationship (i.e., the buying, feeding, and selling of cattle) in which Meat and USA engaged for some time. Simply put, their continuing course of conduct supplied the evidence Meat now claims was missing.

As for the complaints about Question [*20] 12, we say the following. Meat mistakenly argues that the damages awarded therein were not predicated on a finding of breached contract. The requisite predicate appeared through the answer to Question 11. And, because Meat failed to object to the “compositional problem[s]” in Question 11, it cannot now argue that the answer was insufficient to be the predicate to Question 12. So too do we find evidence of record indicating damages of $284,742, i.e., the amount awarded. USA’s bookkeeper testified to same. Thus, the finding has evidentiary support. Furthermore, USA’s Exhibit 501 itemized the sums comprising the $284,742 sought by and awarded to it, and the itemization included amounts attributable to interest.” L & S Meats, LLC v. USA Feedyard, LP, No. 07-18-00030-CV, 2020 Tex. App. LEXIS 590, at *11-20 (Tex. App.—Amarillo Jan. 22, 2020)

Keep in mind–a motion which is not brought to the trial court’s attention will not preserve the complaint raised by the motion. Getting a ruling on the motion shows you brought it to the trial court’s attention:

Continuance/Jury Trial: “In issue two, Shouldice complains that the trial court erred by not conducting a jury [*9] trial, in granting case-determinative sanctions, and in rendering judgment that she filed her will contest in bad faith. Neither Shouldice nor her attorney appeared when the case was called to trial. The docket sheet indicates an emergency motion for continuance may have been filed before the trial court rendered judgment but the record does not show that an emergency motion for a continuance was brought to the trial court’s attention. HN2 As a prerequisite to complaining about the denial of a motion, the record must show that the motion was brought to the trial court’s attention and that the trial court either denied the motion or refused to rule on the motion and the complaining party objected to the refusal. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.); see also Tex. R. App. P. 33.1(a).” Shouldice v. Van Hamersveld, No. 09-18-00355-CV, 2020 Tex. App. LEXIS 622, at *8-9 (Tex. App.—Beaumont Jan. 23, 2020)

DTPA: “We also reject Sadeghian’s argument that the declaratory relief awarded by the trial court somehow runs afoul of the election of remedies doctrine, both because that argument ignores the DTPA’s plain language, id., and because Sadeghian failed to preserve that issue for our review. See Tex. R. App. P. 33.1(a).” Sadeghian v. Jaco, No. 05-18-00838-CV, 2020 Tex. App. LEXIS 670, at *11 (Tex. App.—Dallas Jan. 23, 2020)

You have to comply with the pertinent rules:

Findings: “To preserve a right to appellate review of a complaint about a trial [*7] court’s failure to provide a party with written findings, the record must show the party requesting the findings both filed a request and then, when the trial court failed to provide them, filed a written reminder notifying the trial court that it had not complied with the party’s request for findings. In her appeal, Spears suggests the law placed a duty on the trial court to remind her that it did not intend to comply with her request. The Rules of Civil Procedure, however, do not place that duty on the trial court. Instead, the Rules burden the party who asked for written findings to notify the trial court, in writing, that the trial court had failed to comply with that party’s request.

Spears did not file the required written notice notifying the trial court that it failed to comply with her request. Consequently, Spears failed to preserve her right to complain about the alleged error in her appeal.” Spears v. Haynes, No. 09-18-00147-CV, 2020 Tex. App. LEXIS 463, at *6-7 (Tex. App.—Beaumont Jan. 16, 2020)

You have to get a ruling on your complaints:

Evidence: “Additionally, because these objections are to form, not substance, Robins was required to preserve them in the trial court. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (holding that objections to affidavit that it (1) stated that facts in affidavit were true instead of stating that facts in expert’s reports were true, (2) lacked notary’s signature, and (3) did not attach reports, were objections to affidavit’s form, rather than substance, and therefore subject to error preservation rule that required trial court’s ruling on objections); see also Tex. R. App. P. 33.1(a)(2)(A) (stating that to preserve error, record must show that trial court ruled on objection or, if it refused to rule, that complaining party objected to refusal to rule). Although Robins did broadly raise his hearsay, “unsworn under penalty of perjury,” and failure to “detail the affiants’ criminal records” objections [*30] in his reply in support of his TCPA motion to dismiss, the record does not reflect that the trial court ruled on the objections. Therefore, Robins failed to preserve them for our review.” Robins v. Clinkenbeard, No. 01-19-00059-CV, 2020 Tex. App. LEXIS 423, at *29-30 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020)

Proof: “Finally, Robins argues that the Clinkenbeards “lack any expert witness testimonial affidavits to purportedly back their allegations of legal malpractice.” Although Robins made this objection to the trial court in his reply brief supporting his TCPA motion to dismiss, the record does not reflect that he obtained a ruling on it. See In the Interest of A.J.H., No. 14-03-01016-CV, 2004 Tex. App. LEXIS 1969, 2004 WL 414093, at *5 n.3 (Tex. App.—Houston [14th Dist.] Mar. 2, 2004, no pet.) (mem. op.) (holding that, HN15 in challenge to sufficiency of evidence based on lack of expert testimony, failure to object to testimony of witnesses on basis that they were not qualified as experts to render their opinions waived complaint on appeal) (citing Tex. R. App. P. 33.1(a)).” Robins v. Clinkenbeard, No. 01-19-00059-CV, 2020 Tex. App. LEXIS 423, at *31 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020)

Then, there was a collection of cases in which parties failed to preserve error by failing to raise their complaints in the trial court.

All for now.  I hope this helps.

Yours, Steve Hayes

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

Leave a Comment

Your email address will not be published. Required fields are marked *

Archives

Law Office of Steven K. Hayes

500 Main Street, Suite 340
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436
Email: shayes@stevehayeslaw.com

Scroll to Top