Error Preservation in Texas Civil Cases, July 15, 2018

Dear All:
Opinions compiled in this blog entry deal with the following error preservation topics:

Table of Contents

If, in making your objection in the trial court, you merely refer the trial court to a brief you have filed, make sure you include that brief in the Clerk’s Record on appeal–otherwise, the court of appeals cannot tell if you preserved your complaint or not:


Jury Charge: “Among their arguments on appeal, appellees argue that Castilleja failed to preserve this issue for our review because she failed to provide “the grounds of the objection.” See Tex. R. Civ. P. 274 (requiring party objecting to charge to “point out distinctly the objectionable matter and the grounds of the objection”); see also Tex. R. App. P. 33.1(a) (addressing preservation of complaints for appellate review). Before the trial court, Castilleja orally objected to the inclusion of the sudden emergency instruction “based upon the—the final trial brief and attached case law as foundation for the same,” but she did not identify or explain the substance of her objection on the record other than by reference to her final trial brief, and the final trial brief is not in the record. Because the record does not provide the substance of the ground for objecting to the sudden emergency instruction, we cannot conclude that Castilleja has preserved her complaint to the instruction for appellate review.” Castilleja v. Terryl Monterastelli & Kahlig Enters., No. 03-18-00251-CV, 2018 Tex. App. LEXIS 5324, at *15 (App.—Austin July 13, 2018)

Just because you file your Special Appearance late does not mean you have waived it–as long as it precedes the filing of your general denial and it is not filed too late:


Special Appearance: “Finally, we address Merfish’s argument that Long Island Pipe waived its special appearance by failing to timely file it. Under Rule 99, a defendant must file its answer by 10:00 a.m. on the first Monday after the expiration of 20 days from the date the defendant was served with citation. See Tex. R. Civ. P. 99(b). And under Rule 120a, a special appearance must be filed before the defendant’s answer; provided, however, that the special appearance may be contained in the same instrument as the answer. See Tex. R. Civ. P. 120a. Thus, a defendant must file its special appearance by the deadline for filing its answer. [*18] Merfish served Long Island Pipe on March 28, 2017. Twenty days from March 28 was Monday, April 17. Thus, Long Island Pipe’s deadline for filing its special appearance was the following Monday—i.e., April 24. Long Island Pipe did not file its special appearance until April 30. Merfish argues that, by failing to timely file its special appearance, Long Island Pipe made a general appearance. We disagree. “A party waives its special appearance if it seeks affirmative relief or invokes the trial court’s jurisdiction on any question other than the court’s jurisdiction prior to the trial court ruling on the special appearance.” Verizon California, Inc. v. Douglas, No. 01-05-00707-CV, 2006 Tex. App. LEXIS 1622, 2006 WL 490888, at *3 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.). Long Island Pipe did not seek affirmative relief or invoke the trial court’s jurisdiction on any question other than the court’s jurisdiction before the trial court ruled on its special appearance. Long Island Pipe’s special appearance was its first pleading. Moreover, “[t]he case law is quite clear that special appearances may properly be granted even after a default judgment is granted.”” Long Island Pipe, Inc. v. QT Trading, LP, No. 01-18-00012-CV, 2018 Tex. App. LEXIS 5143, at *17-18 (App.—Houston [1st Dist.] July 10, 2018)

Lack of Subject Matter Jurisdiction can be raised for the first time on appeal:


Subject matter jurisdiction: “The Department contends that Bob and Donna waived this point of error or consented to the jurisdiction of the CCL. However, subject-matter jurisdiction cannot be granted by consent or waived by the parties.” In the Interest of E.N., No. 06-18-00019-CV, 2018 Tex. App. LEXIS 5258, at *3 n.3 (App.—Texarkana July 12, 2018)

Your complaint in the trial court must be timely:


Evidence: “Therefore, to complain on appeal that the trial court erroneously excluded Taplin’s deposition testimony or denied appellants an opportunity to impeach Taplin, appellants must have offered the evidence during the evidentiary portion of the trial and obtained an adverse ruling from the trial court. See, e.g., Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 662-63 (Tex. App.-Dallas 1986, writ ref’d n.r.e.). At trial, appellants did not attempt to offer the deposition during any witness’s testimony, seek to impeach Taplin on that issue, or secure a ruling on the deposition’s admissibility. Appellants did not raise the issue again until after evidence closed and the parties rested, when appellants proffered the deposition as an offer of proof. However, the trial court had no opportunity to rule on the testimony’s admissibility during the evidentiary portion of the trial. Appellants’ stated desire to make the deposition “part of the record” amounts to an offer of proof, but an offer of proof supports error only if the proponent actually offers the evidence during trial and obtains an adverse ruling. See Indus. III, Inc. v. Burns, No. 14-13-00386-CV, 2014 Tex. App. LEXIS 9447, 2014 WL 4202495, at *12 (Tex. App.-Houston [14th Dist.] Aug. 26, 2014, pet. denied) (mem. op.). Because appellants failed to obtain any evidentiary ruling from the trial court concerning the use of Taplin’s deposition at trial, they did not [*6] obtain a final adverse ruling from the trial courtSee, e.g., Ulogo v. Villanueva, 177 S.W.3d 496, 501 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (op. on reh’g); see also Tex. R. App. P. 33.1(a). Accordingly, appellants’ evidentiary complaint presents nothing for our review.” Morales v. Taplin, No. 14-17-00225-CV, 2018 Tex. App. LEXIS 5150, at *5-6 (App.—Houston [14th Dist.] July 10, 2018)

You have to obtain a ruling on your complaint in the trial court:


Affidavit: “eBackpack argues that these terms and conditions may not have been applicable to the 2014 Contract, because the terms and conditions attached to LCISD’s affidavit in support of its plea to the jurisdiction are dated March 19, 2015. Although eBackpack’s counsel argued at the initial hearing on LCISD’s plea that the terms and conditions were submitted without an affidavit in proper form, eBackpack did not obtain a ruling on this objection in the trial court, and consequently waived it.” Lamar Consol. Indep. Sch. Dist. v. Ebackpack, Inc., No. 05-17-01444-CV, 2018 Tex. App. LEXIS 5048, at *11 n.3 (App.—Dallas July 5, 2018)

You must comply with the pertinent rules:


Recusal: “With respect to the third “matter of noncompliance” listed in the order, Vodicka argues on appeal that he “filed a verified Motion for Recusal” but does not provide further argument concerning the verification of his motion. He attached a declaration to his motion for recusal that stated his name, date of birth, and address and described events in 2017 that he described as “harassment caused by the Tobolowsky family” and their agents. In the declaration, after stating his personal information and before describing the events in 2017, he stated, “I declare under penalty of perjury that the foregoing and the following statements are true and correct.” He signed the declaration and the motion to recuse. But the record reflects [*28] that Vodicka did not verify the statements about Judge Cosby that are the basis for the motion to recuse. See In re K.M.L., 443 S.W.3d 101, 109 (Tex. 2014) (applying Black’s Law Dictionary’s definition of “verification” as “(1) [a] formal declaration made in the presence of an authorized officer, such as a notary public . . .; whereby one swears to the truth of the statements in the document [or]; (2) [a]n oath or affirmation that an authorized officer administers to an affiant or deponent” and definition of “verify” as “(1) [t]o prove to be true; to confirm or establish the truth or truthfulness of; to authenticate; [or] (2) [t]o confirm or substantiate by oath or affidavit; to swear to the truth of” (quoting Black’s Law Dictionary 1793 (10th ed. 2009)). Because we conclude that Vodicka’s motion to recuse did not comply with the requirement under rule 18a that a motion to recuse be verified, it is not necessary for us to address the other two “matters of noncompliance” described in the order denying Vodicka’s motion to recuse. We resolve Vodicka’s third issue against him.” Vodicka v. A.H. Belo Corp., No. 05-17-00728-CV, 2018 Tex. App. LEXIS 5049, at *27-28 (App.—Dallas July 5, 2018)

The complaint you raise on appeal must be the complaint you made at trial:


Continuance: “Garrick contends that she preserved error under these rules because she repeatedly moved for a continuance. But her motions for continuance were based on her inability to find counsel, not on inadequate notice, and through her motions, Garrick sought months of additional time, rather than the twenty-four days to which she was entitled. These motions did not preserve a complaint [*7] about inadequate notice. See Hudenburg v. Neff, 643 S.W.2d 517, 518-19 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (a motion for continuance “based solely on appellant’s physical condition” did not preserve a complaint about inadequate notice). Garrick received notice that was untimely but sufficient to enable her to attend the summary-judgment hearing. Under our error-preservation rules, she was required to bring the notice defects to the specific attention of the trial court before the summary-judgment hearing. See Rios, 948 S.W.2d at 33; Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex. App.—Houston [14th Dist.] 1994, no writ). Because she did not, we conclude that Garrick did not preserve her appellate complaint of inadequate notice. We overrule this issue.” Garrick v. Autoliv ASP, Inc., 2018 Tex. App. LEXIS 5220, *6-7 (Tex. App.–Houston [14th Dist.] July 12, 2018)

Evidence: “While the record reflects that Sawyer objected on grounds of hearsay and unfair prejudice, the record does not show that Sawyer raised in the trial court the specific argument he now makes that the evidence about Dr. Varela’s report was not admissible because it was not used to show the basis for Dr. Reed’s opinion, but to improperly bolster her opinion and as substantive evidence. Accordingly, we conclude this particular argument is not preserved for our review. See Tex. R. App. P. 33.1(a). In addition, Sawyer’s complaints about the State’s use of Dr. Varela’s evaluation during Sawyer’s own testimony, are likewise not preserved. See id. The trial court made clear when it granted Sawyer’s request for a running objection during Dr. Reed’s testimony that the running objection was “just for this witness.” Sawyer did not raise any hearsay or rule 403 objections during his testimony.” In re Commitment of Sawyer, No. 05-17-00516-CV, 2018 Tex. App. LEXIS 5201, at *18 (App.—Dallas July 11, 2018)

Expert Reports: “On appeal, Golden Years also argues that Dr. Streitmann did not “adequately describe what ‘wound care’ he envisions, when this wound care needed to be implemented in the five-day window in question in order for cellulitis to be avoided, or explain why Mr. Richard, an individual already on hospice care, would have been a candidate for this treatment and would have responded to it.” [*32] However, Golden Years did not make these arguments in its Motion to Dismiss or Reply filed after Plaintiff submitted Dr. Streitmann’s addendum. Because this argument does not comport with the argument made to the trial court, no error has been preserved on this argument. See Tex. R. App. P. 33.1, 47.1; Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“To have preserved error, a party’s argument on appeal must comport with its argument in the trial court.”)”Golden Years Assisted Living v. Richard, No. 09-17-00251-CV, 2018 Tex. App. LEXIS 5254, at *31-32 (App.—Beaumont July 12, 2018)

Jury Charge: “In his eighth issue, Hill contends the Spracklens are not entitled to exemplary damages because there are no actual damages findings in the record based on fraud or unfair debt collection practices. . . . To the extent Hill’s eighth issue can be construed to be a complaint about the trial court’s use of a broad form question concerning the Spracklens’ mental anguish damages, Hill did not preserve that complaint for our review on appeal. Our rules of procedure [*30] establish the preservation requirements to raise a jury-charge complaint on appeal. Thota, 366 S.W.3d at 689. The complaining party must object before the trial court and “must point out distinctly the objectionable matter and the grounds of the objection.” Tex. R. Civ. P. 274; see also Tex. R. App. P. 33.1. Under Rule of Civil Procedure 274, “[a]ny 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.” Tex. R. Civ. P. 274. As a general rule, preservation requires (1) a timely objection “stating 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,” and (2) a ruling. See Tex. R. App. P. 33.1. Stated differently, the test ultimately asks “whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Hill did not object to the broad form submission of the mental anguish damages question on the basis that he now appears to advance. See Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014). Accordingly, that complaint has not be preserved on appeal. See id. We overrule Hill’s eighth issue.” Hill v. Spracklen, No. 05-17-00829-CV, 2018 Tex. App. LEXIS 5313, at *29-30 (App.—Dallas July 12, 2018)

I won’t bother you all with the various opinions which held that parties failed to raise their complaints in the trial court.

I hope this helps.  Hasta luego.

Yours, Steve Hayes


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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