Error Preservation in Texas Civil Cases, July 25 ,2020

July 25, 2020

Dear All:

Well, I guess we’ve returned to what more or less passes for normal these days.  I hope everyone remains safe and well.

Table of Contents

An objection that a discovery request is overbroad is sufficiently specific to preserve that complaint

Discovery

The complaint you make on appeal must be the complaint you made at trial

Evidence

You have to comply with other pertinent rules

Evidence

Your objection must be timely–but a post verdict jnov motion is timely for a legal sufficiency complaint

Legal Sufficiency

The Blurbs

An objection that a discovery request is overbroad is sufficiently specific to preserve that complaint:

Discovery: “In response to relators’ petition, FNB claims that relators waived all of their objections to the complained-of requests because (a) they did not assert sufficiently specific objections in their discovery responses and . . . . this court did not hold in Collins that an objection that a particular discovery request is overbroad is not specific enough to preserve that objection; instead, we held that the party resisting discovery in that case had not produced supporting evidence for its dual overbreadth and relevance objections, as well as its [*12] newly-asserted claim of privilege. 2017 Tex. App. LEXIS 474, [WL] at *20. The Texas Supreme Court has held that a timely asserted and continued objection that a discovery request is overbroad is sufficient to preserve error. See Nat’l Lloyds, 507 S.W.3d at 223; In re Allstate Cty. Mut. Ins., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). . . . Here, relators objected to each alter-ego-related request as overbroad. Although FNB complained to the trial court about what it called the “boilerplate” nature of these objections, it did not argue that relators’ objections were untimely or that they were “obscured by numerous unfounded objections.” See Tex. R. Civ. P. 193.2(e). And even though relators did not specifically argue their overbreadth objections to each request in the motion-to-compel hearing, nothing in the hearing evidenced an intent by counsel or relators to abandon those objections altogether. . . . When the trial court in this case ruled on the requests one-by-one on the record, she asked only whether the parties had come [*14] to an agreement on whether relators would answer these thirty-eight requests as she ruled on each one. Here, relators timely objected to the requests as to overbreadth and relevance and obtained rulings overruling their objections; they did not represent to the trial court that they intended to waive the overbreadth objections or that they had agreed to otherwise respond to the objected-to requests. . . . .Thus, we conclude that relators preserved their overbreadth objections. See Allstate, 227 S.W.3d at 670.” In re CAR Fin. Servs., No. 02-20-00157-CV, 2020 Tex. App. LEXIS 5735, at *11-14 (Tex. App.—Fort Worth July 23, 2020)

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

Evidence: “Appellant contends that the admission of appellee’s exhibit twelve, a letter from the court clerk in New Mexico regarding appellant’s child support payment history to that county, was erroneous because it had no “probative value.” When appellee offered exhibit twelve at trial, appellant objected on the basis of hearsay and “to renew our judicial estoppel claim.” To preserve error, a complaint must be made to the trial court by timely objection that states the grounds for the ruling sought with sufficient specificity to make the trial [*11] court aware of the complaint, comply with the applicable rules, and be ruled on by the trial court. Tex. R. App. P. 33.1. Appellant failed to object to the document’s relevance or “probative value” which is the ground on which he bases his appellate complaint. Any error on this point has not been preserved.” In the Interest of B.E.W, No. 14-18-00733-CV, 2020 Tex. App. LEXIS 5728, at *10-11 (Tex. App.—Houston [14th Dist.] July 23, 2020)

You have to comply with other pertinent rules:

Evidence: “Appellant failed to preserve error because he did not make an offer of proof of the excluded testimony [pursuant to TRE 103(a)(2)]. Even if error were preserved, appellant has failed to show how the exclusion probably caused the rendition of an improper judgment.” In the Interest of B.E.W, No. 14-18-00733-CV, 2020 Tex. App. LEXIS 5728, at *15 (Tex. App.—Houston [14th Dist.] July 23, 2020).

Your objection must be timely–but a post verdict jnov motion is timely for a legal sufficiency complaint:

Legal Sufficiency: “ On appeal, Source 4 Value challenges the legal sufficiency of the evidence to support the jury’s finding that it had prior knowledge of the fraud.   Hoelzer and Lowery posit that Source 4 Value failed to preserve its complaint because the word “prior” was not a part of Question 1 and no objection on that basis was made during the charge conference. They also assert that “prior” knowledge is not required to hold a party vicariously liable as beneficiary of the fraud and neither is active participation in the fraud.

By its reply brief, Source 4 Value disagrees that it failed to preserve its error because it was not objecting to the omission of a definition of “knowledge.” It also argues that knowledge of fraud must necessarily be “gained either prior to or at least during the commission of the fraud” and not after the fraud. We conclude that Source 4 Value preserved its legal sufficiency complaint via its Motion for Judgment Non Obstante Veredicto in which it argued that it had no knowledge of the fraud.” Source 4 Value v. Hoelzer, No. 07-18-00338-CV, 2020 Tex. App. LEXIS 5621, at *6 (Tex. App.—Amarillo July 21, 2020)

I won’t bother you with cases which held that a party does not preserve a complaint which it does not raise in the trial court.

Y’all stay safe and healthy.

Yours, Steve Hayes

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

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