July 11, 2020
Dear Folks:
I didn’t bother you with an update last week because the only error preservation cases I ran across involved parties failing to raise complaints in the trial court. This week provided a couple of more meaty morsels for your stew.
Table of Contents
We have an extensive discussion of the law governing incurable jury argument, and application of that law to two different arguments
Jury Argument
The overruling of a motion to modify a judgment by operation of law, when no new evidence is required to support the motion (as in questions of law, which can first be asserted in the post-trial time frame) preserves a complaint even in the absence of an express ruling on the motion
Attorney’s Fees
The Blurbs
From time to time, a case will arise in which a court addresses whether an arguably improper jury argument rose to the level of being an incurably improper jury argument, and hence subject to complaint for the first time in a post-trial motion for new trial or mistrial. I’ll encourage you to read the following case, because I cannot do justice here to this court’s extensive discussion of the law governing incurable jury argument, and its application of that law to two different arguments (before it held that the arguments were not incurable):
Jury Argument: “It is undisputed that no objection was made during trial to the jury argument the Givens/Brown families complain about on appeal. “Error as to improper jury argument must ordinarily be preserved by a timely objection which is overruled.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). “In rare cases, an improper argument is considered incurable, and a contemporaneous objection is not required.” Hopkins v. Phillips, No. 05-18-01143-CV, 2019 Tex. App. LEXIS 9449, 2019 WL 5558585, at *2 (Tex. App.—Dallas Oct. 29, 2019, pet. denied) (mem. op.). Instead, “[a] complaint of incurable jury argument may be asserted and preserved in a motion for new trial [or post-judgment motion for mistrial], even without a complaint and ruling during the trial.” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). As previously noted, however, incurable argument is rare. Living Ctrs. of Tex., Inc., 256 S.W.3d at 681. The seminal case setting forth the test for determining whether jury argument is incurable is Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex. 1979). . . . Therefore, considering the argument in its proper context, we hold the trial court did not abuse its discretion in concluding the argument by Anderson’s counsel was not an appeal to ethnic prejudice. Even if, however, it could be construed as such, we hold the argument was not so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” See Phillips, 288 S.W.3d at 883. . . . Therefore, having reviewed the record as a whole, even if we assume the comments were improper, we hold the references to greed and money and the comments made distinguishing between Trevino’s case and the Givens/Brown case were not so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” See Phillips, 288 S.W.3d at 883; see also Queen City Land Co. v. State, 601 S.W.2d 527, 530 (Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.) (holding counsel’s use of the term “greed,” while improper, “was curable by instruction”).” Givens v. Anderson Columbia Co., No. 04-19-00435-CV, 2020 Tex. App. LEXIS 4984, at *12-13 (Tex. App.—San Antonio July 8, 2020)
The overruling of a motion to modify a judgment by operation of law, when no new evidence is required to support the motion (as in questions of law, which can first be asserted in the post-trial time frame) preserves a complaint even in the absence of an express ruling on the motion:
Attorney’s Fees: “In the trial court, T&C timely filed a motion to reform the judgment on December 10, 2018 and a supplement to the motion to reform the judgment on January 11, 2019. In the supplement to the motion to reform the judgment, T&C argued that section 38.001 of the Civil Practice and Remedies Code “does not apply to limited partnerships like T&C Construction, Ltd.” and that section 28.005 of the Property Code does not apply to the contract for Project 2 because the San Jacinto River Authority is a governmental entity. The trial court did not rule on the motion to reform the judgment, and it was denied by operation of law on February 21, 2019. See Tex. R. Civ. P. 329b(c).
First, T&C’s argument for denying Brown Mechanical’s attorney’s fees under section 38.001 presents only a question of law because the parties do not dispute that T&C is a limited partnership. See Tex. Bus. Orgs. Code § 5.055(a) (establishing that name of limited partnership “must contain: (1) the word ‘limited’; (2) the phrase ‘limited partnership’; [*19] or (3) an abbreviation of that word or phrase”).
Second, T&C’s argument for denying Brown Mechanical’s attorney’s fees under section 28.005 of the Property Code presents only a question of law because the evidence at trial established that the San Jacinto River Authority was a governmental entity. . . . Because T&C’s motion to reform the judgment did not require the taking of evidence, its overruling by operation of law preserved error for appeal. See Tex. R. App. P. 33.1(b).” T&C Constr., Ltd. v. Brown Mech. Servs., No. 01-19-00041-CV, 2020 Tex. App. LEXIS 5067, at *18-19 (Tex. App.—Houston [1st Dist.] July 9, 2020)
I did not see any other cases, other than those which involved parties failing to raise their complaints in the trial court.
I hope this helps. Y’all have a great weekend.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com