Error Preservation in Texas Civil Cases, July 10-17, 2021

July 10-17, 2021

Dear Friends:

Well-I’m making headway.

Table of Contents

Your objection at trial must be timely in order to preserve your complaint


You have to get a ruling on your objection


You don’t see trial by consent come up very often, but here is one case which addressed it


While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court

Attorney’s Fees (Segregation)
Economic Loss Rule
Expert Witness
Jury Charge
Primary Jurisdiction


Your objection at trial must be timely in order to preserve your complaint:

Evidence: “Appellants here had an opportunity to timely object to Bustillos’ questions and Miller’s answers that called for repeated disclosures about Kasner’s participation in the joint inspection and his confirmation along with Miller of certain findings….Each question Bustillos propounded to Miller suggested the character of the answer that was given, which included disclosure of Kasner’s agreement with Miller with regard to their inspection. Bustillos pointedly asked Miller about his joint conclusions and observations which he made along with Kasner. [*24] It was incumbent upon Appellants to object as soon as was practicable, and they failed to do so….Consequently, we conclude Appellants waived their hearsay objection.” Press Energy Servs., LLC v. Ruiz, No. 08-19-00179-CV, 2021 Tex. App. LEXIS 5706, at *23-24 (Tex. App.—El Paso July 16, 2021)

You have to get a ruling on your objection:

Hearsay: “Appellants failed to preserve their hearsay objection to the affidavit by failing to obtain a ruling from the trial court. See Tex. R. App. P. 33.1.” Montano v. Cronan, No. 09-20-00232-CV, 2021 Tex. App. LEXIS 5654, at *20 (Tex. App.—Beaumont July 15, 2021)

You don’t see trial by consent come up very often, but here is one case which addressed it:

Pleading: “As discussed above, Powell did not specifically plead ambiguity or lack of capacity, and Powell did not introduce any evidence at trial. Neither party presented evidence on the issues of ambiguity and lack of capacity, nor were the issues developed without objection. See Tex. R. Civ. P. 67; Ingram, 288 S.W.3d at 893. The arguments of counsel do not constitute [*9] evidence. McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.—Dallas 1993, no writ). Generally, to be considered evidence, an attorney’s statements must be made under oath. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). Because no evidence was adduced at trial regarding ambiguity or lack of capacity and M/G’s counsel objected to defense counsel’s questioning of Childress regarding whether the contract constituted a personal guaranty, we conclude that these defensive issues were not tried by consent. See Tex. R. Civ. P. 67.” Powell v. M/G Fin. Co., Ltd., No. 09-19-00344-CV, 2021 Tex. App. LEXIS 5659, at *8-9 (Tex. App.—Beaumont July 15, 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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