Error Preservation in Texas Civil Cases, July 18, 2020

Dear Friends:

First, Great News! According to recent Tweets by Black Hawthorne, the websites of almost all Texas courts of appeals have started replicating, meaning that those websites now reflect all documents filed in the various cases. Various items still need updating by hand, but the various courts have started working on those, as well.

Now, on to error preservation decisions.

Table of Contents

A party did not waive its objection that a temporary injunction order was not agreed

You must object in the trial court to a defect in the jurat on an unsworn declaration–but to avoid problems in this area, you might consider placing the jurat as the final paragraph in the unsworn statement

Affidavit

You must make your complaint in a timely fashion, which sometimes involves complying with other pertinent rules and statutes

Affirmative Defenses

You have to get a ruling on your complaint–an instruction to “move on” is not a ruling. Furthermore, make sure that the ruling granting your opponent’s motion for summary judgment is on the same issue for which you moved for summary judgment, or else get an express ruling on your motion

Evidence
Discovery
Notice
Summary Judgment

The Blurbs

Here is an interesting situation, in which a court held that a party did not waive its objection that a temporary injunction order was not agreed:

Temporary Injunction: “Next, Hartman argues that SISU and Grundy waived their challenges to the Injunction when they remained silent and did not object to the proposed order after it was sent to Judge Ray or after Judge Ray signed it. But Hartman forwarded to Judge Ray an agreed order. Judge Ray had previously ordered the parties and their attorneys to sign the order “if” it was agreed to. Neither SISU and Grundy nor their counsel had signed the Injunction. When emailing Judge Ray the Injunction, Hartman’s attorney informed the trial court that the parties still disputed the geographical limitations of the order. And although Hartman’s counsel stated in his October 25 email that the parties had “agreed to a form of Second Temporary Injunction,” even if we assume that was true, an agreement as [*33] to form only does not constitute an agreed order. See Morrison, 2015 Tex. App. LEXIS 6862, 2015 WL 4043260, at *6. Moreover, Hartman’s counsel requested Judge Ray to sign the order on only Hartman’s behalf.

While it may have been preferable for SISU and Grundy’s counsel to have expressly objected to the order after Hartman’s counsel requested Judge Ray to sign the order, their lack of objection on this record did not manifest an intentional waiver of their right to later challenge the fact that they never agreed to the Injunction. See Tenneco, 925 S.W.2d at 643. On this record, their lack of agreement to the order was evident and their remaining silent was consistent with their lack of agreement; their silence did not suddenly transform their lack of agreement into an agreement.” SISU Energy, LLC v. Hartman, No. 02-19-00436-CV, 2020 Tex. App. LEXIS 5430, at *32-33 (Tex. App.—Fort Worth July 16, 2020)

You must object in the trial court to a defect in the jurat on an unsworn declaration–but to avoid problems in this area, you might consider placing the jurat as the final paragraph in the unsworn statement:

Affidavit: “In its first issue, ACI asserts that Loadholt’s unsworn [*4] declaration is incompetent summary judgment evidence because it lacks the statutorily required jurat. See Hays St. BridgeRestoration Grp. v. City of San Antonio, 570 S.W.3d 697, 702 & n.15 (Tex. 2019) (stating that an unsworn declaration “provides no support for the motion” because the declaration, while made under the penalty of perjury, was unverified and lacked the statutorily required jurat). Loadholt’s declaration contains a jurat, but rather than placing it at the end of the document, it is at the beginning. Loadholt’s declaration states his name and address, then says “I declare under penalty of perjury that the foregoing is true and correct” (emphasis added), after which he states facts relating to his motion, followed by his signature. ACI maintains that the jurat’s placement indicates that the only information subject to penalty of perjury is Loadholt’s personal information and therefore no jurat applies to the remainder of the information in the declaration.

ACI did not raise this objection in the district court but urges that we may nonetheless consider this issue on appeal because the absence of the statutorily required jurat is a substantive defect. See Tex. Civ. Prac. & Rem. Code § 132.001(c)(1), (2) (requiring an unsworn declaration to “be in writing and subscribed by the person making the declaration as [*5] true under penalty of perjury”); Tex. R. App. P. 33.1(a) (stating that generally, to preserve a complaint for appellate review, a party must complain to the trial court by a timely request, objection, or motion, and the trial court must rule or refuse to rule on the request, objection, or motion); see also Fernandez v. Peters, No. 03-09-00687-CV, 2010 Tex. App. LEXIS 8473, at *11 (Tex. App.-Austin Oct. 19, 2010, no pet.) (mem. op.) (stating that “[u]nlike objections to defects in form, objections to defects of substance may be raised for the first time on appeal” and holding that lack of personal knowledge constituted a substantive defect in affidavit). We disagree. We consider this issue with the jurat to be a defect in form. The Texas Supreme Court has addressed the distinction between substantive defects and defects in form in Mansions in the Forest, L.P. v.Montgomery County when considering the competence of an affidavit in support of a motion for summary judgment. 365 S.W.3d 314, 317 (Tex. 2012). Like ACI, the nonmovant in Mansions in the Forest did not complain that the purported affidavit was unsworn until its responsive brief in the court of appeals. See id. The court held that the nonmovant had therefore waived the issue and it could not be considered on appeal. Id. The court explained, “When a purported affidavit lacks a jurat and a litigant [*6] fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the opposing party must object to this error, thereby giving the litigant a chance to correct the error.” Id.; see id. at 318 (acknowledging and disapproving of court of appeals opinions holding that the absence of a jurat is a substantive defect). The court continued:

There are “important prudential considerations” behind our rules on preserving error. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). First, requiring that parties initially raise complaints in the trial court conserves judicial resources by providing trial courts the opportunity to correct errors before appeal. Id. Second, judicial decision-making is more accurate when trial courts have the first opportunity to consider and rule on error. Id. (“Not only do the parties have the opportunity to develop and refine their arguments, but we have the benefit of other judicial review to focus and further analyze the questions at issue.”). Third, a party “should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time.” Id. (quoting Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam)).

Id. at 317. Although the court considered [*7] the distinction between form and substance in the context of an affidavit rather than an unsworn declaration, its prudential considerations for requiring error preservation apply equally to unsworn declarations. See Tex. Civ. Prac. & Rem. Code § 132.001(a) (stating that generally “an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit”). Accordingly, we conclude that ACI has likewise waived its complaint that Loadholt’s declaration lacked a jurat.“ Aci Design Build Contractors v. Loadholt, No. 03-19-00442-CV, 2020 Tex. App. LEXIS 5507, at *3-7 (Tex. App.—Austin July 17, 2020)

You must make your complaint in a timely fashion, which sometimes involves complying with other pertinent rules and statutes:

Affirmative Defenses: “Ali argues that the trial court erred by not allowing him to present evidence of the affirmative defenses of payment and voluntary relinquishment. Shahla argues that Ali waived his right to assert these defenses because he failed to timely file a motion to stay. We agree.

The trial court found that Ali did not [*13] file his motion to stay issuance of the judicial writ of withholding until November 15, 2017, more than ten days after he received notice. In her response, Shahla objected to Ali’s motion to stay, contending that it was filed too late. See Tex. Fam. Code § 158.307(a). On appeal, Shahla contends that because Ali failed to properly file a motion to stay, he cannot complain on appeal about the amount of arrearages determined by the trial court. We agree.

The trial court did not abuse its discretion in deciding the child support arrearage amount as a matter of law after Ali failed to file a timely motion to stay. . . .  Ali argues that Cobb is distinguishable because in that case the appellate court did not have a reporter’s record and the trial court did not make findings of fact and conclusions of law, but this court’s analysis of the law in Cobb, regarding the obligor’s untimely motion to stay, did not depend on findings of fact and conclusions of law or a reporter’s record. . . . We overrule Ali’s issue related to his ability to present affirmative defenses.” Khaligh v. Khaligh, No. 01-18-01119-CV, 2020 Tex. App. LEXIS 5420, at *12-14 (Tex. App.—Houston [1st Dist.] July 16, 2020)

You have to get a ruling on your complaint–an instruction to “move on” is not a ruling. Furthermore, make sure that the ruling granting your opponent’s motion for summary judgment is on the same issue for which you moved for summary judgment, or else get an express ruling on your motion:

Evidence: “In the remaining portion of her first issue, S.C. contends that the trial court’s “failing to cure a misstatement of law” by the Department’s counsel in the presence of the jury resulted in an improper judgment. S.C. argues that the Department’s counsel left the jury with the mistaken impression “that if parental rights were not terminated the children would have to be returned to the parents immediately (or some other hearing would have to be held).”

During S.C.’s counsel’s cross-examination of the guardian ad litem, the Department’s counsel objected to a line of questioning about whether the children would be returned to S.C. or L.C. if their parental rights were not terminated. In the presence of the jury, the Department’s counsel said, “Objection. Relevance. If the jury doesn’t terminate, the Department can no longer be a custodian. That’s a legal fact.” In response, also in the presence of the jury, S.C.’s counsel asked for a curative [*39] instruction: “I just want to make sure that the jury understands that that’s not accurate, that’s not legally accurate. So however—if you’d like to instruct them, I really think that that’s an important point that they need to hear.” The trial court responded, “Let’s move on,” and S.C.’s counsel resumed cross-examining the guardian ad litem. The trial court’s statement to move on was not a ruling on the Department’s counsel’s statement, and there was no objection to the trial court’s refusal to rule. Therefore, the complaint about this alleged misstatement of law is not preserved for our review. See Tex. R. App. P. 33.1(a)(2).” S.C. v. Tex. Dep’t of Family & Protective Servs., No. 03-20-00039-CV, 2020 Tex. App. LEXIS 5115, at *38-39 (Tex. App.—Austin July 10, 2020)

Discovery: “Judge Stith provided Rodriguez an opportunity to present evidence and even indicated that Rodriguez would be allowed to question David, if desired. Rodriguez did not follow up on the invitation to question David or call additional witnesses. Rodriguez did not bring the earlier request for additional time to conduct discovery to Judge Stith’s attention or file any additional motions for continuance or discovery. Judge Stith’s order simply denied Rodriguez’s motion to recuse and/or disqualify. Because Rodriguez failed to secure a ruling on the request for discovery, this objection has not been preserved for our review. See Tex. R. App. P. 33.1;” Rodriguez v. Newton, No. 13-19-00309-CV, 2020 Tex. App. LEXIS 5393, at *5 (Tex. App.—Corpus Christi July 16, 2020)

Notice: “The Onwuteaka Parties also contend that they did not receive proper notice of their right to request a de novo hearing as required by section 54A.112 and that this failure to notify deprived them of their constitutional rights to due process. The [*18] only point in the trial court proceeding in which the Onwuteaka Parties complained of the associate judge’s alleged failure to give notice of their right to request a de novo hearing was in their motion for reconsideration of the denial of their request for de novo hearing. The Onwuteaka Parties attached no evidence to this motion showing that they did not receive the notice required by section 54A.112, and they did not obtain an adverse ruling on this motion. Thus, the Onwuteaka Parties failed to preserve error on this point in the trial court.” Law Office of Joseph Onwute, P.C. v. Serna, No. 14-18-01063-CV, 2020 Tex. App. LEXIS 5411, at *17-18 (Tex. App.—Houston [14th Dist.] July 16, 2020)

Summary Judgment: “Generally, if a trial court’s ruling granting one summary judgment motion necessarily denies another pending motion for summary judgment on the same issue, we will imply the ruling of denial, even if the trial court does not expressly rule on the latter motion. [cases omitted] With respect to Star’s fraudulent transfer claim against NLW, appellees moved for summary judgment on their affirmative defense. The issue appellees presented, and upon which the trial court ruled, was whether Star’s claim was extinguished by the statute of repose. Star seeks summary [*71] judgment on the merits of its fraudulent transfer claims. The trial court did not reach the merits of this issue. Further, the trial court, at the summary-judgment hearing, expressly did not reach Star’s claim regarding the Fuqua Tract.

To preserve error for appeal, a party must obtain a ruling from the trial court. See Tex. R. App. P. 33.1(a); Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (“Preservation of error generally depends on whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”) (internal quotations omitted). Because Star did not obtain a ruling from the trial court on its motion for summary judgment, this issue is waived.” Star Elec., Inc. v. Northpark Office Tower, LP, No. 01-17-00364-CV, 2020 Tex. App. LEXIS 5216, at *70-71 (Tex. App.—Houston [1st Dist.] July 14, 2020)

The only other error preservation decision I ran across involved parties failing to raise their complaints in the trial court.

I hope this helps.  Y’all stay safe and well.

Yours, Steve Hayes

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

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