Error Preservation in Texas Civil Cases, January 4, 2020

January 4, 2020

Dear All:

Some of the courts issued decisions in the first few days of the new year, and some of these decisions are interesting:

Table of Contents

  • You have to get a ruling on your complaint
    • Motion to Withdraw Deemed Admissions
  • Your must present your complaint with sufficient specificity. Sometimes, based on what their opponent has teed up, a party does complain with sufficient specificity, and sometimes they do not.
    • Deemed Admissions
    • Summary Judgment

The Blurbs

You have to get a ruling on your complaint:

Motion to Withdraw Deemed Admissions: “Appellees contend that Torres failed to obtain a ruling on his motion [*7] to strike [deemed admissions] and thus failed to properly preserve this issue for appeal. To preserve error for appeal, the record must show that: (1) the complaint was made to the trial court by a timely motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint, and (2) the trial court ruled on the motion, either expressly or implicitly, or refused to rule, and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). Here, there is nothing in the record to indicate that Torres requested a hearing on his motion, or that the trial court ruled on his motion. There is no written order, there is no mention of Torres’s motion to strike in the trial court’s written order granting defendants’ summary judgment motions, and there is no reporter’s record of either a hearing on Torres’s motion to strike or the hearing on defendants’ motions for summary judgment.” Torres v. Lee, No. 05-18-00631-CV, 2020 Tex. App. LEXIS 15, at *6-7 (Tex. App.—Dallas Jan. 3, 2020)

Your must present your complaint with sufficient specificity. Sometimes, based on what their opponent has teed up, a party does complain with sufficient specificity, and sometimes they do not:

Deemed Admissions: “Torres did not present his merits-preclusive argument with the same degree of specificity to the trial court. The only suggestion that Torres was complaining that the deemed admissions might be merits-preclusive is found in the last two sentences of section III of Torres’s motion to strike. Torres first asserted that he had not acted in flagrant bad faith or callous disregard for the rules. He then stated, “Lastly, striking or withdrawing the deemed admissions against Plaintiffs will ensure that the case will be tried on the merits against Defendants.” As previously noted, the record does not contain a written order or any indication that the trial court ruled on Torres’s motion to strike so we cannot ascertain whether the trial court understood that these statements were to be interpreted as Torres’s merits-preclusive objection. See Tex. R. App. P. 33.1(a)(1)(A). And again, as previously [*14] noted, there is nothing in the record to indicate that the trial court ruled on such an objection.” Torres v. Lee, No. 05-18-00631-CV, 2020 Tex. App. LEXIS 15, at *13-14 (Tex. App.—Dallas Jan. 3, 2020)

Summary Judgment: “The City claimed in a letter notifying WIL of a violation of the reinstatement agreement for advertising for rental a “lakefront cabin with water trampoline” and “luxury lakefront mansion.” As we have discussed, the “luxury lakefront mansion” advertisement is in the record and constitutes a violation of the agreement as to lot 43. However, the alleged “lakefront cabin with water trampoline” advertisement is not in the record. Consequently, WIL claims that the City breached the agreement and improperly evicted it on lot 46. The City argues that WIL waived consideration of this issue because this argument [*16] was raised for the first time on appeal. We disagree.

Issues a nonmovant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also Tex. R. Civ. P. 166a(c). In a no-evidence motion for summary judgment, after the movant specifies the elements for which there is no evidence, the burden then shifts to the nonmovant to produce evidence raising a genuine issue of material fact on the elements specified in the motion. Tex. R. Civ. P. 166a(i); Mack Trucks, 206 S.W.3d at 582. The nonmovant is “not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Tex. R. Civ. P. 166a(i), cmt.

WIL satisfied this burden. WIL’s response to the City’s motion included the issue that it complied with the reinstatement agreement, that it performed its obligations under the agreement, and that termination of the leases and eviction was improper. It specifically identified and attached evidence to its response to the motion, including James Wasson’s deposition testimony. In it, he stated that he never rented either the large house or the cabin after [*17] the parties executed the reinstatement agreement. Furthermore, at times during Wasson’s testimony, counsel referred to advertisements generally, but he was presented only with the advertisement for the large home and specifically questioned about that advertisement. As we have stated, there is no advertisement in the record for the cabin on lot 46. Accordingly, this ground was before the trial court, WIL presented more than a scintilla of evidence that it complied with the reinstatement agreement as to the cabin, and the City failed to conclusively negate it. WIL raised a fact issue as to whether the City’s termination of the lease for lot 46 and eviction was improper.” Wasson Interests, Ltd. v. City of Jacksonville, No. 12-13-00262-CV, 2019 Tex. App. LEXIS 11264, at *15-17 (Tex. App.—Tyler Dec. 31, 2019)

That’s all for now, Buckaroos.  More next week.

Yours, Steve Hayes

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

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