January 4, 2023
Dear Friends:
With this issue, I think I’ve just about caught up with the error preservation decisions for this fiscal year (i.e., starting September 1, 2022). I hope to do better for the remainder of this year, but you know how that goes.
Table of Contents
Sometimes, if your opponent addresses an affirmative defense you raise in your summary judgment response, that will convince the court of appeals that you sufficiently raised the issues in your response–and if you contend the affirmative defense was not pled, you have to say so in the trial court
Affirmative Defenses
Affirmative Defense
Here are a couple of opinions which held, in their own ways, either that a complaint was sufficiently specific
Evidence
Waiver
The failure to authenticate documents is a complaint about a defect of substance which can first be raised on appeal
Authentication
The complaint you make on appeal must be one you raised in the trial court
Evidence
You have to get a ruling, and if you don’t request a hearing on a motion you run the risk that there is no implied ruling, so–request and get a hearing
Discovery
Venue
Your complaint must be timely, which at least means that (on a second trial) you have to reassert evidentiary objections. It also means that not every action in the trial court waives a special appearance
Evidence
Special Appearance
You have to comply other pertinent rules
Continuance
Continuance
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Affidavit
Attorney
Comments by Judge
Constitution
Evidence
Evidence
Legal and Factual Sufficiency
Notice
Summary Judgment Evidence
Time Limitations
Blurbs
Sometimes, if your opponent addresses an affirmative defense you raise in your summary judgment response, that will convince the court of appeals that you sufficiently raised the issues in your response–and if you contend the affirmative defense was not pled, you have to say so in the trial court:
Affirmative Defenses: “In their first issue, Appellants claim the trial court erred in granting summary judgment because fact issues existed as to the defenses of waiver, estoppel, and changed conditions. Appellees respond Appellants waived these defenses by failing to assert them in response to the motion for summary judgment….In their response to Appellees’ motion for summary judgment, Appellants urged several reasons Appellees’ motion for summary judgment should be denied. One of the listed reasons states: “The [Appellees] have acquiesced in violations of the residential restriction so as to amount to an abandonment of the covenant or a waiver of the right to enforce it.” This reason was stated later in the motion and appears in a section which discusses the well-established rule that a court may nullify or void a restrictive covenant if the property owners have acquiesced in violations; however, no case law was cited to support the proposition. Another stated reason for denying summary judgment reads: “There has been such a radical change in the neighborhood towards commercial development that a residential covenant is no longer valid.” Appellants went on to plead Appellees had sold many other tracts contiguous to Appellants’ properties to commercial buyers. In the previously referenced section of Appellant’s response regarding case law, a case is cited for the proposition that change of conditions may provide a basis for nullifying or voiding a restrictive covenant. Appellants discuss the radical change that must be present to justify voiding a residential deed restriction, citing cases in support. Appellees filed a reply to Appellants’ response to their motion. In the reply, Appellees note Appellants raised many issues in their response, but largely failed to address the merits of Appellees’ motion. However, Appellees stated, “Once the Court strips the [Appellants’] Response of its offensive accusations and immaterial facts, the [Appellants] are left with only a few potential defenses: . . . (2) changed conditions, and (3) abandonment.” Appellees addressed each of these arguments in their reply. The arguments raised in Appellants’ response to Appellees’ motion for summary judgment prompted Appellees to address the points of changed conditions and abandonment. Accordingly, we find the arguments were sufficiently stated to fairly apprise Appellees and the trial court of the affirmative defenses of waiver and changed conditions.3 Appellants did not waive the right to present these issues on appeal.” Urias v. Owl Springs N., No. 08-21-00063-CV, 2022 Tex. App. LEXIS 9431, at *9 (Tex. App.—El Paso Dec. 27, 2022, no pet. h.)
Affirmative Defense: “It is required that, when an affirmative defense is raised for the first time in a motion for summary judgment, the nonmovant has two choices: (1) object that the affirmative defense had not been pleaded, or (2) respond on the merits and try the issue by consent. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006). Here, Appellant satisfied both choices. Appellant objected to the unpled affirmative defense under the presumed-grant theory and further asserted it could not be tried by consent. It is not required that Appellant specially except to Appellees’ pleadings. Appellees failed to properly plead the affirmative defense of presumed-grant theory and Appellant made clear she was not trying the issue by consent. The presumed-grant theory could not support a grant of summary judgment.” Bridges v. Uhl, No. 08-21-00130-CV, 2022 Tex. App. LEXIS 9552, at *33 (Tex. App.—El Paso Dec. 29, 2022, no pet. h.)
Here are a couple of opinions which held, in their own ways, either that a complaint was sufficiently specific, or that a party could assume his objection had been preserved:
Evidence: “CrossFirst asserts that Anders waived any complaint about the trial court’s award of attorneys’ fees because he did not object to the trial court’s decision to review the records in camera. We disagree. The trial court stated that she wanted to review the unredacted records, which she typically does because of her interpretation of Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019), and take the time to read Anders’s response and review his objections. Based on this statement, Anders reasonably could expect that the trial court would rule on his redaction objections and give him the opportunity to present controverting evidence prior to entering an order awarding fees.” Anders v. CrossFirst Bank, No. 05-21-00769-CV, 2022 Tex. App. LEXIS 9216, at *16 n.6 (Tex. App.—Dallas Dec. 19, 2022, no pet. h.)
Waiver: “Northpointe argues that Durant did not argue waiver of Northpointe’s right to arbitration in her written response to the Motion to Compel or during the hearing on the motion. Northpointe argues that during the hearing, Durant “did not [*20] specifically discuss whether Appellant had substantially invoked the judicial process, other than generally alleging delay.” Thus, according to Northpointe, Durant did not present the issue of waiver to the trial court.
We agree with Northpointe that during the hearing on its Motion to Compel, Durant focused primarily on the authenticity of the Agreement. Durant, however, also argued that she was concerned Northpointe had waited almost four years to move for arbitration, that had she known arbitration was mandatory she “wouldn’t have wasted all this time and money in litigation,” and that “after four years she should [not] lose her constitutional right to a jury trial and be forced in front of someone who can make a decision that is not appealable, that she’d be stuck with.” We hold that these arguments sufficiently raised the defense of waiver. As we ultimately conclude, however, Durant failed to meet her burden to prove the defense.” Northpointe LTC, Ltd. v. Durant, No. 01-22-00215-CV, 2022 Tex. App. LEXIS 9326, at *19-20 (Tex. App.—Houston [1st Dist.] Dec. 22, 2022, no pet. h.)
The failure to authenticate documents is a complaint about a defect of substance which can first be raised on appeal:
Authentication: “[O]bjections to defects in the substance of summary-judgment proof are not required to be first presented to, and ruled on by, the trial court. Estate of Guerrero, 465 S.W.3d at 706 “A complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal.” Id. (quoting Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.)); Gudur v. Texas Dep’t of Health, No. 03-03-00752-CV, 2005 Tex. App. LEXIS 8742, at *17-18 (Tex. App.—Austin Oct. 21, 2005, no pet.) (mem. op.). Thus, Enterprise is entitled to argue in this appeal that some or all of Buscha’s summary-judgment evidence is unauthenticated and cannot support the trial court’s ruling.” Enter. Ctr. Giddings v. Buscha, No. 03-21-00394-CV, 2022 Tex. App. LEXIS 9592, at *6 (Tex. App.—Austin Dec. 30, 2022, no pet. h.)
The complaint you make on appeal must be one you raised in the trial court:
Evidence: “ On appeal, the bank argues this evidence was inadmissible because Ganter did not disclose them and the documents underlying them in discovery. However, the bank did not make this argument before the trial court. There, the bank argued that the summaries did not meet the requirements for a summary of evidence under Rule of Evidence 1006 and because Chris Ganter was not an expert in interpreting bank records. The bank does not assert these objections on appeal. “To preserve an error for appeal, a party’s argument on appeal must comport with its argument in the trial court.”…” Because the bank’s argument on appeal does not comport with its objections at trial, no error is preserved.” Indep. Bank v. Ganter, No. 05-21-00375-CV, 2022 Tex. App. LEXIS 9562, at *22 (Tex. App.—Dallas Dec. 29, 2022, no pet. h.)
You have to get a ruling, and if you don’t request a hearing on a motion you run the risk that there is no implied ruling, so–request and get a hearing:
Discovery: “Three days after filing her Response, Appleton filed a Motion to Compel and for Sanctions seeking depositions and additional written discovery responses. Appleton does not assign a separate point of error for the discovery issues but mentions them several times in her brief and notes that the trial court did not rule on her Motion to Compel. The record does not indicate she requested a hearing on her Motion to Compel prior to the summary judgment’s submission, and it was Appleton’s burden to do so…. A party claiming the need for further discovery or that a motion for summary judgment is premature is required to file a verified motion for continuance or affidavit outlining the need for additional discovery….The record before us does not show she did either. To the extent Appleton attempts to complain about this, she did not preserve it for our review.” Appleton v. Consol. Crane & Rigging, No. 09-21-00247-CV, 2022 Tex. App. LEXIS 9357, at *7 n.5 (Tex. App.—Beaumont Dec. 22, 2022, no pet. h.)
Venue: “The Bank also contends Respondent never ruled on Nobel’s motion to transfer venue….However, the reporter’s record from the April 21, 2022 hearing indicates the trial court expressly referred to the “venue motion” in its discussion with the attorneys and before ruling it was denying “that motion at this time.” We find suitable support in the record that Respondent knew what she was considering when denying “that motion at this time,” and therefore reject the Bank’s jurisdictional arguments.” In re Nobel Leaf Holdings, No. 07-22-00225-CV, 2023 Tex. App. LEXIS 11, at *4 (Tex. App.—Amarillo Jan. 3, 2023, no pet. h.)
Your complaint must be timely, which at least means that (on a second trial) you have to reassert evidentiary objections. It also means that not every action in the trial court waives a special appearance:
Evidence: “During the second trial, the previous alleged agreement between the parties was never mentioned during the testimony regarding division of the pension funds.2 Wife never tried to admit it into evidence or object to the trial court’s failure to consider it. To the extent Wife argues the trial court made it clear by its previous rulings that it would not revisit the alleged agreement in the second trial, this did not absolve Wife of her obligation to take some action to preserve the issue for appeal. We reject Wife’s invitation to address an issue she could have challenged through a petition for writ of mandamus, but chose not to, and should have raised again during the second trial after the trial court “essentially wipe[d] the slate clean and started] over.” Wilkins, 160 S.W.3d at 563.” Rodriguez v. Rodriguez, No. 05-22-00056-CV, 2022 Tex. App. LEXIS 9479, at *7-8 (Tex. App.—Dallas Dec. 28, 2022, no pet. h.)
Special Appearance: “Roach argues that Schrader waived his special appearance by also setting for hearing the TCPA motion at the same time, which Roach contends violated the due-order-of-hearing requirement of Texas Rule of Civil Procedure 120a. He further contends Schrader waived his special appearance because the TCPA motion was not subject to his special appearance. We do not agree that Schrader has waived his special appearance.
First, Schrader had already filed a special appearance to the claims asserted in Roach’s prior pleadings, including his Fourth Amended Petition. The trial court denied that special appearance, and Schrader appealed. After his special appearance was overruled, Schrader thereafter could appear “generally for any purpose” without waiver. See Tex. R. Civ. P. 120a(4) ….Furthermore, Texas Rule of Civil Procedure 120a dictates the order in which pleadings may be filed with respect to the filing of a special appearance (the due-order-of-pleading requirement); it also dictates the order in which motions may be heard with respect to a special appearance (the due-order-of-hearing requirement). See Tex. R. Civ. P. 120a….Rule 120a makes matters filed subsequent to the special appearance subject to the special appearance without an express statement to that effect for each matter. Tex. R. Civ. P. 120a(1) ….Here, although Schrader set both the Amended Special Appearance and the TCPA motion for hearing on the same day, a hearing was not conducted. Instead, the trial court issued written orders on the motions without conducting a hearing. And Roach does not contest that the trial court ruled on the special appearance before ruling on the TCPA motion. Thus, we reject Roach’s arguments that by noticing the TCPA motion for hearing (when no hearing on the TCPA motion was held) or failing to expressly state that the TCPA motion was subject to the special appearance (when it was filed after Schrader filed his special appearance), Schrader somehow waived his special appearance. Accordingly, we turn to Schrader’s arguments on the merits of his Amended Special Appearance.” Constellation Brands, Inc. v. Roach, No. 01-21-00155-CV, 2022 Tex. App. LEXIS 9530, at *11-14 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, no pet. h.)
You have to comply other pertinent rules:
Continuance: “As in Buholtz, Sackett admittedly received notice of the summary judgment hearing the week before it was held, giving him ample time to file a written motion for a continuance. Yet he failed to file a written motion or any affidavits to support the granting of a continuance before the hearing. Moreover, although Sackett raised notice at the hearing and orally moved for a continuance, an oral request cannot preserve the issue for our review….In addition, Sackett’s post-trial written response to the summary motion, which he filed after the trial court entered its final judgment, was not sufficient to preserve error. Not only did Sackett fail to provide any affidavits or other evidence in support of his response, but a post-trial motion cannot substitute for a timely filed motion for continuance, and does not preserve error unless the party complains that he was “given no notice of the summary judgment hearing or that [he] was deprived of [his] right to seek leave to file additional affidavits or other written response.”….Sackett acknowledged that he received notice of the summary judgment hearing at least a week before the hearing, giving him time to file a written motion and any necessary affidavits, and he was therefore not deprived of his right to seek leave to file a summary judgment response.” Sackett v. Jolly, No. 08-22-00072-CV, 2022 Tex. App. LEXIS 8860, at *17-18 (Tex. App.—El Paso Dec. 5, 2022, no pet. h.)
Continuance: “At a July 8 docket call, Father indicated that he intended to file a motion for continuance and orally asked for more time. The trial court denied Father’s oral motion. Oral motions for continuance fail to preserve error…. We thus do not further address Father’s July 8 oral motion.” In the Int. of R.S., No. 02-22-00306-CV, 2022 Tex. App. LEXIS 9132, at *17 (Tex. App.—Fort Worth Dec. 15, 2022, no pet. h.)
All for now. Y’all have a great week, and the best year ever.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com