Error Preservation in Texas Civil Cases, July 29, 2018

Dear All:

Here is a list of those things covered below-marked by the coincidence of several cases dealing with preserving error concerning the failure to segregate attorney’s fees:

Table of Contents


Here is a case-both majority opinion and concurrence-which focuses us on the issues involved in preserving an objection about the failure to segregate attorney’s fees in a bench trial. Note there is a split of authority among the courts of appeals:


Attorney’s Fees: “James and the Trustee did not object to Jennifer’s failure to segregate her attorney’s fees until after the trial court made its ruling awarding her fees. Jennifer argues that the objection was too late to preserve error. James and the Trustee respond that they did not waive error because they objected before the trial court rendered final judgment. HN5 Objections to the failure to segregate can be waived. Green Int’l v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). Generally, an objection must be made “timely” in the trial court to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a)(1). A “timely” objection is “one ‘interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error.’” Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.—Dallas 2015, pet. denied) (quoting Driver v. Conley, 320 S.W.3d 516, 518 n.3 (Tex. App.—Texarkana 2010, pet. denied)). By the time James and the Trustee made their objection, the evidence was closed, trial had concluded, and the trial court had already made its ruling awarding Jennifer her fees. Nonetheless, the objection was made at a time when the trial court could, and did, rule on it, stating in a letter to the parties that “Attorney Fees are not limited to legal work segregated to the declaratory judgment action.” One of our sister courts has noted that “there is as yet no consistent rule about when an objection to the failure to segregate attorneys’ fees must be raised in a case tried without a jury,” Home Comfortable Supplies, Inc. v. Cooper, 544 S.W.3d 899, 908 (Tex. App.—Houston [14th Dist.] 2018, no pet.), and some courts have ruled that an objection to failure to segregate must be made “before the trial court issues its ruling.” Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, 2017 WL 4053943, at *2 (Tex. App.—Fort Worth Sept. 14, 2017, no pet.) (mem. op.); see also Cooper, 544 S.W.3d at 908-09 (collecting cases). But on this record, we conclude James and the Trustee did not waive their appellate complaint.” Anderton v. Green, No. 05-17-00024-CV, 2018 WL 3526162, 2018 Tex. App. LEXIS 5573, at *20 n.4 (App.—Dallas July 23, 2018)

Attorney’s fees (concurrence): “In my view, appellants’ complaint about whether Jennifer failed to segregate her recoverable attorney’s fees is substantively a complaint about the sufficiency of the evidence to support the amount awarded. See Tony Gullo Motors I, L.P. v. Chapa, 22 S.W.3d 299, 314 (Tex. 2006) (“Unsegregated attorney’s fees for the entire case are some evidence of what the segregated amount should be.”) (footnote omitted). . . .As such, that issue could have been raised for the first time on appeal from this nonjury case. Tex. R. App. P. 33.1(d). Therefore, future appellate courts should not need to address the error preservation issues footnote four discusses when resolving whether an attorneys’ fees claimant property segregated recoverable attorneys’ fees from non-recoverable attorneys’ fees when a trial court tries that issue.” Anderton v. Green, No. 05-17-00024-CV, 2018 WL 3526162, ____ Tex. App. LEXIS ____ (App.—Dallas July 23, 2018) (Whitehill, J., concurrence).

In one of those weird coincidences we see sometimes, the Fort Worth Court seemed to underscore the Anderton concurrence by holding that a complaint about the legal sufficiency of the evidence in a bench trial may be raised for the first time on appeal to challenge the failure to segregate attorney’s fees.


Attorney’s Fees: “The appellees contend that Crockett failed to preserve the bulk of her arguments concerning the trial court’s fee award. Indeed, the record shows that Crockett did not complain to the trial court concerning the propriety of the award of attorney’s fees. Therefore, she failed to preserve any complaints concerning that award except for complaints about the legal or factual insufficiency of the evidence, which may be raised for the first time on appeal in a civil nonjury case. See Tex. R. App. P. 33.1(a)(1), (d); see also [*9] Petrohawk Props., L.P. v. Jones, 455 S.W.3d 753, 783 (Tex. App.—Texarkana 2015, pet. dism’d) (holding that complaint that attorney-fee award was not authorized by statute was subject to rules of preservation); Nolte v. Flournoy, 348 S.W.3d 262, 273 (Tex. App.—Texarkana 2011, pet. denied) (holding that appellant failed to preserve complaint that trial court abused its discretion by failing to explain the basis of its award of sanctions); Sherman v. Triton Energy Corp., 124 S.W.3d 272, 278-79 (Tex. App.—Dallas 2004, pet. denied) (holding that appellants failed to preserve complaint that final judgment contradicted the trial court’s oral pronouncement on motion for sanctions). We therefore overrule all of Crockett’s issues concerning the trial court’s award of attorney’s fees except for her fourth issue, in which she challenges the legal sufficiency of the evidence supporting the amount of the trial court’s fee award.” Farr v. Arlington Indep. Sch. Dist., No. 02-17-00196-CV, 2018 Tex. App. LEXIS 5534, at *8-9 (App.—Fort Worth July 19, 2018)

And in yet a further weird coincidence, the Houston First Court held that a failure to object in response to a motion for summary judgment because of a lack of segregation of fees waived that objection:


Attorney’s fees: “Pacific argues that the trial court erred in granting attorney’s fees to Fidelity because (1) Fidelity failed to segregate its fees; . . . . “Generally, a party seeking attorney’s fees must segregate those fees incurred in connection with a claim that allows their recovery from fees incurred in connection with claims for which no such recovery is allowed.” Hill v. Premier IMS, Inc., No. 01-15-00137-CV, 2016 Tex. App. LEXIS 4911, 2016 WL 2745301, at *8 (Tex. App.—Houston [1st Dist.] May 10, 2016, no pet.) (mem. op.) (quoting Alief Indep. Sch. Dist. v. Perry, 440 S.W.3d 228, 245 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)). “Settled law, however, holds that a party waives any error arising from possibly awarding nonrecoverable fees when the complaining party does not object to failure to segregate between legal services for which fees are properly recoverable and those for which no recovery of fees is authorized.” Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 516 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 823 (Tex. 1985) (“Because [the party] did not object to the failure of the trial court to segregate the attorney’s fees between the claims, they have waived that point.”). Pacific did not object to the lack of segregation or otherwise bring the issue to the trial court’s attention prior to its granting summary judgment. Pacific has therefore waived this issue. See Haden, 32 S.W.3d at 516-17; see also Am. First Nat. Bank v. Jordan-Lewis Dev., L.P., No. 01-09-00990-CV, 2011 Tex. App. LEXIS 5347, 2011 WL 2732779, at *8 (Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.) (mem. op.) (“Because AFNB’s objection to the failure to segregate attorney’s fees was not raised before the trial court rendered [*28] judgment, AFNB has waived this objection on appeal.”). . . . Pacific also argues that the trial court erred in awarding attorney’s fees to Norman because Norman failed to segregate its fees. Pacific did not complain that Norman failed [*34] to segregate its fees prior to the trial court granting summary judgment. Having failed to object to the lack of segregation or otherwise bring the issue to the trial court’s attention prior to its granting summary judgment, Pacific has waived this issue.” Pac. Energy & Mining Co. v. Fid. Expl. & Prod. Co., No. 01-17-00594-CV, 2018 Tex. App. LEXIS 5586, at *26-28, 34 (App.—Houston [1st Dist.] July 24, 2018)

Complaints about the immateriality of jury findings can be raised in a jnov motion :


Jury findings: “Galvan asserts that the trial court erred by signing a judgment in favor of the estate on its wrongful eviction claim. Pointing to Barboza’s bankruptcy proceedings, Galvan contends that the jury’s liability finding is immaterial because Barboza rejected the lease. N. 2 N. 2 Galvan preserved this issue for our review by raising it in her post-verdict motion for judgment notwithstanding the verdict. See BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402 (Tex. 2017) (“BP preserved error on the immateriality issue by raising these concerns post-verdict in a motion for judgment in disregard, in a motion for judgment notwithstanding the verdict, and in a motion for new trial.”).” Galvan v. Garcia, No. 14-16-00162-CV, 2018 Tex. App. LEXIS 5712, at *6 (App.—Houston [14th Dist.] July 26, 2018)

Some complaints, like the lack of subject matter jurisdiction, may be first raised on appeal, and one does not have to object to post trial findings of fact concerning matters previously decided in pre-trial summary judgment practice:


Subject matter jurisdiction: “Finally, in a letter brief, the City seems to suggest that the district court has subject-matter jurisdiction because Pixler was the one who [*7] requested the administrative hearing and appeared and participated in it, but the issue here is subject-matter jurisdiction, which can never be conferred by consent or waiver, not personal jurisdiction, which a party waives by generally appearing. See Trenz v. Peter Paul Petrol. Co., 388 S.W.3d 796, 800 (Tex. App.—Houston [1st Dist.] 2012, no pet.). The same holds true for the City’s contention that Pixler “affirmatively invok[ed]” the district court’s subject-matter jurisdiction by filing counterclaims. HN4 While it is certainly true that a party must allege facts that affirmatively demonstrate a court’s jurisdiction to hear the claim, see Tex. Ass’n of Bus., 852 S.W.2d at 446, a party has no power, by its allegations or otherwise, to vest a court with subject-matter jurisdiction when none exists. See Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 541, 174 S.W.2d 598, 600 (Tex. 1943) (“Jurisdiction of the subject matter exists by operation of law only . . . .”).” In re Pixler, No. 02-18-00181-CV, 2018 Tex. App. LEXIS 5791, at *6-7 (App.—Fort Worth July 26, 2018)

Findings and Conclusions: “Silvia argues [*11] that Eleazar waived his challenge to the trial court’s pretrial partial-summary-judgment determination that she established the separate character of DST and ESBEC as a matter of law. She contends that to pursue this issue on appeal Eleazar was required to object to the trial court’s post-trial findings of fact which support the legal conclusion that he gifted his community-property interest in DST and ESBEC to her, transforming them into her separate property. Not so. While a partial summary judgment is an interlocutory ruling that is subject to revision while the trial court retains its plenary power, the court nevertheless cannot determine prior to trial that certain issues have been established as a matter of law, conduct the trial on that basis, and then withdraw its ruling without allowing the parties a fair opportunity to present their positions on issues no longer taken to be established. That happened in this case. Eleazar moved for reconsideration of the partial summary judgment on the gift issue immediately before trial began, and the trial court denied that motion. Then during trial, Silvia’s counsel objected to evidence relating to [*12] dividing the value of ESBEC on the basis that it already had been confirmed as Silvia’s separate property. The trial court sustained the objection. We conclude that the trial court decided the characterization of DST and ESBEC as Silvia’s separate property as a matter of law based on the evidence presented in the motion for partial summary judgment. Under the particular circumstances of this case, in which Eleazar was not permitted a fair opportunity to litigate the fact issues underlying the pretrial determination that he had gifted his interest in DST and ESBEC, thus making it Silvia’s separate property as a matter of law, the trial court could not transform its pretrial ruling as a matter of law into a post-trial ruling based on a resolution of disputed facts. Eleazar has properly challenged the trial court’s ruling as a matter of law that DST and ESBEC were the separate property of Silvia.” Maldonado v. Maldonado, No. 01-16-00747-CV, 2018 Tex. App. LEXIS 5582, at *10-12 (App.—Houston [1st Dist.] July 24, 2018)

When a statute says you may challenge a decision on appeal for a particular reason, you may–and we all need to keep in mind that additional arguments may be raised on appeal to support an issue that was raised in the trial court:


Good cause: “Riou contends the Commissioner’s decision to affirm NEISD’s termination of Riou’s continuing contract is not supported by [*14] substantial evidence. Specifically, Riou argues that because §21.156 defines good cause as “the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state,” NEISD needed to present evidence of the standards of professional conduct recognized and applied in other similarly situated school districts. See Tex. Educ. Code Ann. § 21.156. Integral to this contention is Riou’s argument that the good cause per se doctrine employed by the IHE and the Commissioner conflicts with the statutory definition of “good cause” found in § 21.156.

NEISD argues that Riou forfeited her argument that the wrong standard was used to determine whether good cause existed to terminate her contract because she failed to explain to the school board that the good cause per se standard used by the IHE improperly departs from § 21.156’s definition of good cause. Accordingly, NEISD argues Riou failed to exhaust administrative remedies and should not be permitted to argue on appeal that the IHE and the Commissioner should not have used the good cause per se standard in determining that Riou’s termination was sufficiently supported by the evidence.

We conclude NEISD’s contention [*15] that Riou may not argue the insufficiency of the evidence because she did not articulate her specific argument regarding the application of the good cause per se doctrine before the school board is without merit. Riou’s argument regarding the Commissioner’s use of the good cause per se standard is part of her contention that the Commissioner’s decision is not supported by substantial evidence. NEISD had the initial burden to present sufficient evidence that good cause under § 21.156 existed to terminate Riou’s continuing contract. See id. § 21.256. Moreover, the Education Code provides that a teacher may appeal the school board’s decision to the Commissioner, and the Commissioner may reverse the board’s decision if it is “not supported by substantial evidence.” See id. § 21.303(a). Likewise, the Code provides that a teacher may appeal the Commissioner’s decision and argue that the decision is not supported by substantial evidence. See id. § 21.307(f). Despite NEISD’s efforts to characterize Riou’s argument as “rais[ing] the issue of good cause per se,” Riou’s contention is really a sufficiency of the evidence challenge—one that by statute she is entitled to bring.

Furthermore, although Riou did not specifically explain [*16] to the board that NEISD failed to meet its burden by not presenting evidence of the standards generally recognized and applied in similarly situated school districts, Riou did argue to the board that NEISD failed to meet its burden to show good cause existed to terminate Riou’s continuing contract. “Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.” Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 2018 WL 1883075, at *5 (Tex. 2018) (admonishing a court of appeals for “impos[ing] too strict a view of error preservation”). Riou raised as an issue at the board meeting NEISD’s failure to show good cause existed to terminate her contract; she is not required on appeal to rely on precisely the same argument as that presented to the board. See id.; Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”) (emphasis in original).” N. E. Indep. Sch. Dist. v. Riou, No. 04-17-00592-CV, 2018 Tex. App. LEXIS 5632, at *13-16 (App.—San Antonio July 25, 2018)

In some instances, an implied ruling occurs, which preserves error:


Innocent Owner: “Seymour continued her testimony and in response to being asked if she gave her son “permission to do any of the things that he did with [her] truck,” she answered, “[n]o.” The State renewed the “innocent owner” objection and the trial court responded, “I understand.” n. 3 n. 3 Seymour argues that although the State’s first objection was overruled, the State’s subsequent objection was not ruled on resulting in waiver of the State’s contention that the “innocent owner” defense was not tried by consent. We disagree. A trial court’ ruling may be made expressly or implicitly. Based on its prior ruling, the trial court’s response was an implicit ruling. See Tex. R. App. P. 33.1(a)(2)(A). See also Blum v. Julian, 977 S.W.2d 819, 823 (Tex. App.—Fort Worth 1998, no pet.) (concluding that revision to predecessor of Rule 33.1(a) relaxed the former requirement of obtaining an express ruling).” 2000 GMC Sierra Truck v. State, No. 07-16-00356-CV, 2018 Tex. App. LEXIS 5575, at *9 n.3 (App.—Amarillo July 23, 2018)

If you raise your discovery complaint in the trial court you will have preserved it:


Discovery: “Toyota now seeks relief from the June 25 Order claiming it exceeds the bounds of permissible discovery by imposing a burden on Toyota to produce documents that are irrelevant and disproportionate to the needs of this case. The Reavises urge that Toyota cannot show where it preserved its disproportionate and undue burden objections. We examined the record to determine whether Toyota raised the issues in the trial court, as Toyota’s briefing does not respond to the waiver point and the rules of appellate procedure do not require a party to identify [*5] where it preserved its argument,. See Tex. R. App. P. 33.1. Having done so, we conclude Toyota sufficiently presented its concerns to the trial court, with the exception of Toyota’s complaint concerning the search, which is premature as detailed hereafter.” In re Toyota Motor Sales, U.S.A., Inc., No. 05-18-00734-CV, 2018 Tex. App. LEXIS 5544, at *4-5 (App.—Dallas July 19, 2018)

But not if your good objections to discovery get lost in your overabundance of unfounded objections, in which case you will have waived all your objections:


Discovery: “C. The trial court abused its discretion when it denied De Anda’s motion to compel discovery. De Anda also challenges the trial court’s denial of her motion to compel discovery. As pointed out above, Webster refused to respond to any of De Anda’s discovery requests, including her Rule 194 requests for disclosure, to which  a party may not object. See Tex. R. Civ. P. 194.5 (“No objection or assertion of work product is permitted to a request under this rule.”). With respect to De Anda’s interrogatories and requests for production, Webster lodged the same global, prophylactic string of objections quoted above to every interrogatory and request for production. We have already addressed, and rejected, Webster’s objection that Miranda excuses him from responding to discovery. In addition, HN6 the rules prohibit objections based on privilege. [*20] See Tex. R. Civ. P. 193.2(f). Having reviewed De Anda’s interrogatories and requests for production, we conclude they sought relevant information and documents. See HN7 Tex. R. Evid. 401 (stating that evidence is relevant if it has any tendency to make a fact of consequence to the determination of the action more or less probable than it would be without the evidence); Tex. R. Civ. P. 192.3 (describing scope of discovery).
In sum, many of Webster’s objections were unfounded. We therefore conclude that Webster waived his objections to De Anda’s discovery requests. See Tex. R. Civ. P. 193.2(e) (“An objection . . . that is obscured by numerous unfounded objections, is waived unless the court excuses the waiver for good cause shown.”). The trial court therefore abused its discretion when it denied her motion to compel discovery. See Rodas v. La Madeleine of Tex., Inc., No. 05-14-00054-CV, 2015 Tex. App. LEXIS 3571, 2015 WL 1611780, at *7 (Tex. App.-Dallas April 10, 2015, pet. denied) (mem. op.) (holding trial court abused discretion when it denied post-arbitration discovery into evident partiality claim).  Because the trial court abused its discretion when it denied her motions for continuance of the summary judgment hearing and to compel discovery responses, we sustain De Anda’s third issue and reverse the trial court’s summary judgment.” De Anda v. Webster, No. 14-17-00020-CV, 2018 Tex. App. LEXIS 5727, at *19-20 (Tex. App.-Houston [14th Dist.] July 26, 2018)

You have to comply with the pertinent rules:


Pleading: “The County responds by pointing out that Appellants not only failed to plead a 1983 claim in their Petition, but also failed to request permission from the trial court to amend their petition to add such a claim. The County therefore argues that Appellants waived their right to raise this issue on appeal, citing Rule 33.1 of the Texas Rules of Appellate Procedure. Appellants, however, believe that they set forth adequate facts in their pleadings to support [*44] this claim, and that they should be given the opportunity to amend their pleadings to expressly state this cause of action, despite their failure to do so earlier. We disagree. [the Court extensively discusses its reasoning as to why Appellants failed to plead a 1983 claim.]” Luttrell v. El Paso Cty., No. 08-16-00090-CV, 2018 Tex. App. LEXIS 5813, at *43-44 (App.—El Paso July 26, 2018)

Special Appearance: “Here, PPM filed its breach of contract suit against McCoy, a Georgia resident, in Texas state court on July 8, 2016. McCoy filed his original answer on February 6, 2017. McCoy entered a general denial, requested that PPM serve on him the disclosures required by Rule 194.2, and “having fully answered herein, pray[ed] that upon final trial and hearing, that he receive a judgment according to the law and facts as determined by this Honorable Court.” McCoy sought his attorney’s fees and “such other and further relief, both general and special, at law and in equity” to which he was entitled. Three months later, on May 15, 2017, McCoy filed his special appearance, seeking dismissal of the suit against him because he lacked sufficient contacts with Texas. We conclude that McCoy made a general appearance when he filed his answer on February 6, 2017. See Baker, 111 S.W.3d at 160; Radenovich, 198 S.W.3d at 860; Seals, 145 S.W.3d at 296. Because McCoy made a general appearance before filing his special appearance, McCoy waived his special appearance and his challenge to the trial court’s personal jurisdiction over him. See [*9] Tex. R. Civ. P. 120a(1);” McCoy v. Platinum Power Moves, Inc., No. 01-17-00653-CV, 2018 Tex. App. LEXIS 5777, at *8-9 (App.—Houston [1st Dist.] July 26, 2018)

I hope this helps.  Y’all take good care.


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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