Error Preservation in Texas Civil Cases, July 3, 2022

July 3, 2022

Dearly Beloved:

Don’t pay the ransom, I’ve escaped, and just in time for July 4.  Here are about 3 weeks worth of error preservation decisions, including a couple from the Supreme Court:

Table of Contents

The Supreme Court gave us two error preservation rulings, on a jury demand and legal sufficiency

Jury Trial
Legal Sufficiency

Some complaints can first be raised on appeal

Evidence (Authentication)
Summary Judgment

Here are examples of complaints which were preserved

Jury Charge
Notice (Default Judgment)
Summary Judgment
Summary Judgment

You have to get a ruling on your objection


You have to comply other pertinent rules

Factual Sufficiency
Jury Charge

While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court

Arbitration Rules
Judicial Notice
Jury Charge
Legal Sufficiency
Service Plan
New Trial
Summary Judgment (Evidence)
Summary Judgment
Summary Judgment
Summary Judgment
Summary Judgment


The Supreme Court gave us two error preservation rulings, on a jury demand and legal sufficiency:

Jury Trial: “We conclude that the trial court did not abuse its discretion in ruling that Browder’s jury demand was untimely. But we disagree with the court of appeals’ holding on preservation, which is inconsistent with our decision in Citizens State Bank of Sealy v. Caney Investments, 746 S.W.2d 477 (Tex. 1988). There, the court of appeals determined that the plaintiff, which had perfected its right to a jury trial and notified the trial court that it had paid a jury fee, waived its right to a jury trial because it “did not insist upon a jury trial or object when the court proceeded to hear testimony without a jury.” 733 S.W.2d 581, 587 (Tex. App.—Houston [1st Dist.] 1987). We reversed, holding that the trial court erred in denying the plaintiff its right to a jury trial. 746 S.W.2d at 478-79.

This holding follows from our common-sense approach to error preservation. See Thota v. Young, 366 S.W.3d 678, 690 (Tex. 2012). “A party preserves error by a timely request that makes clear—by words or context—the grounds for the request and by obtaining a ruling on that request, whether express or implicit.” In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011) (citing Tex. R. App. P. 33.1); see also State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (framing preservation inquiry as “whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling”).

If a trial court indicates that it will proceed with a bench trial in a case where a jury demand was timely perfected, a demanding party that still wishes to have a jury trial must ensure that the court is aware of the demand. But neither our procedural rules nor this Court’s decisions require a party that has obtained an adverse ruling from the trial court to take the further step of objecting to that ruling to preserve it for appellate review. Once the trial court denied Browder’s request for a jury trial, Browder had no choice but to go forward with the bench trial. See Coleman v. Sadler, 608 S.W.2d 344, 346 (Tex. App.—Amarillo 1980, no writ); cf. Bonsmara Nat. Beef Co. v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 396 n.22 (Tex. 2020) (“If simply adhering to an adverse order while continuing to litigate waived review of that order on appeal from a final judgment, there would be few orders left to review.”). Browder did not need to renew that request or object to the court’s adverse ruling to preserve his complaint regarding the denial of a jury trial for appellate review. See Tex. R. App. P. 33.1(c) (providing that “a formal exception to a trial court ruling” is not “required to preserve a complaint for appeal”).” Browder v. Moree, No. 21-0691, 2022 Tex. LEXIS 612, at *2-4 (June 24, 2022)

Legal Sufficiency: “We agree with Theresa and hold that a failure to file a motion for new trial under Craddock in the trial court does not foreclose a party’s ability to raise on appeal an evidentiary challenge to a default property division. We therefore reverse.

When a properly served defendant fails to file an answer within the time provided, the plaintiff may obtain a default judgment. Tex. R. Civ. P. 239. One way that a defendant may attack that judgment directly is by filing a motion for new trial. See Tex. R. Civ. P. 320. Under Craddock, a default judgment should be set aside and a new trial ordered when the defaulting party shows that: (1) the failure to appear was not intentional or the result of conscious indifference, but was the result of an accident or mistake; (2) the motion for new trial sets up a meritorious defense; and (3) granting the motion will occasion no delay or otherwise injure the plaintiff. 133 S.W.2d at 126.

A defendant need not file a motion for new trial before filing a notice of appeal, however. See Tex. R. App. P. 25.1, 26.1. And with exceptions not applicable here, a motion for new trial is not a prerequisite to raising a complaint on appeal. See Tex. R. Civ. P. 324(a). Moreover, Texas Rule of Appellate Procedure 33.1(d) specifically offers a defaulting party an appellate remedy to challenge the sufficiency of the evidence in a case tried to the bench. In nonjury cases, “a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d). Under this rule, Theresa’s complaint that the trial court’s property division was not supported by the evidence is a sufficiency challenge that may be raised for the first time on appeal regardless of whether she also sought a new trial.” In re Marriage of Williams, No. 21-0584, 65 Tex. Sup. Ct. J. 1405, 2022 Tex. LEXIS 525, at *3-5 (June 10, 2022)

Some complaints can first be raised on appeal:

Evidence (Authentication): “We note that while Quick Roofing raised objections in the trial court to the lack of authentication of the sample warranty, the trial court did not rule on its objections. “However, ‘[a] complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal.'” In re Guerrero, 465 S.W.3d at 706 (quoting Blanche v. First Nationwide Mfg. Corp., 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.)).” Harley Rogers P’ship, Ltd. v. Quick Roofing, LLC, No. 04-21-00030-CV, 2022 Tex. App. LEXIS 4217, at *10 n.3 (Tex. App.—San Antonio June 22, 2022)

Judgment: “Mother argues that Father failed to preserve this complaint because he did not object to the inclusion of the finality language in the judgment. But although a party must preserve for appellate review a complaint that the trial court’s erroneous inclusion of finality language precluded the party from seeking further statutorily authorized relief for prevailing on a claim,…a party need not file a postjudgment motion to complain on appeal that the trial court erroneously granted summary judgment on a claim not raised in the motion,” J.A. & B., No. 02-21-00140-CV, 2022 Tex. App. LEXIS 4517, at *7 (Tex. App.—Fort Worth June 30, 2022)

Jurisdiction: “In the record before us, the issue of Lane and Weston’s purchase of the Company shares from the Gaddy Trust and their absence from the proceedings was first raised in Glenna’s response to the motion to void the transfer. Glenna protested a second time in her objections to the order declaring the transfer void and specifically argued Lane and Weston were indispensable parties. However, our record contains no ruling on that objection, despite Glenna’s letter to the court requesting a hearing on the objections and a ruling before the trial court signed the order granting Mark’s motion. Under these circumstances, we might construe the trial court’s failure to rule as an implied ruling based on its subsequent order granting the motion to void the transfer. …

Although she acknowledges the impropriety of Lane and Weston’s absence from the proceedings in her brief on appeal, Glenna omits an indispensable party argument as it pertains to jurisdiction. However, under Rule 39, where a person is indispensable such that his absence deprives the trial court of jurisdiction to render judgment over the subject matter, his absence constitutes fundamental error which can and should be noticed by a reviewing court on its own motion….Accordingly, we proceed of our own volition to determine whether Lane and Weston’s joinder was mandatory to vest the trial court with jurisdiction over the proceedings seeking to void the stock transfer.” In re Tr. of Bernard L., No. 08-19-00071-CV, 2022 Tex. App. LEXIS 4435, at *17-18 (Tex. App.—El Paso June 29, 2022)

Summary Judgment: “We note that in its appellate brief, Quick Roofing argues that Harley Rogers “waived” its argument that a fact issue exists as to Quick Roofing’s contractual performance because Harley Rogers failed in the trial court to make this specific argument in its response to Quick Roofing’s traditional motion for summary judgment. According to Quick Roofing, Harley Rogers’s trial court response “never addresse[d] a single element of a breach of contract claim” but “merely contain[ed] multiple blanket references to the [attached] Affidavit . . . and wholesale citations to the record.” Quick Roofing is mistaken. Pursuant to Rule 166a(c), Quick Roofing had the burden to prove that no genuine issue of material fact exists with respect to every element of its breach of contract claim. See Tex. R. Civ. P. 166a(c). Under Rule 166a(c), the burden of proof never shifts to the nonmovant “unless and until the movant has ‘establish[ed] his entitlement to a summary judgment . . . by conclusively proving all essential elements of his cause of action or defense as a matter of law.'” Draughon v. Johnson, 631 S.W.3d 81, 87-88 (Tex. 2021) (quoting Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989)). Thus, traditional “summary judgments must stand or fall on their own merits, and the nonmovant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). “If a nonmovant fails to present any issues in its response or answer, the movant’s right is not established and the movant must still establish its entitlement to summary judgment.” Id. “The effect of such a failure is that the nonmovant is limited on appeal to arguing the legal sufficiency of the grounds presented by the movant.” Id. That is what Harley Rogers is doing here—arguing that there is no evidence to support the performance element of Quick Roofing’s breach of contract claim.” Harley Rogers P’ship, Ltd. v. Quick Roofing, LLC, No. 04-21-00030-CV, 2022 Tex. App. LEXIS 4217, at *4 n.1 (Tex. App.—San Antonio June 22, 2022)

Here are examples of complaints which were preserved:

Jury Charge: “In its brief, TCY asserts that Scherer failed to preserve his complaint regarding the definition of “Purchase Agreement” in the trial court. We disagree. The Supreme Court of Texas has “explained that ‘[t]here should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.'” Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 919-20 (Tex. 2015) (quoting State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)). At the informal charge conference, Scherer voiced his disapproval of the definition found in the charge. He asserted that the jury should be informed that there were “modifications” after the Purchase Agreement was signed. He suggested that the definition should inform the jury that there were later add-ons to the February 13 agreement. The trial court stated that it was concerned the jury would be confused about whether there was more than one agreement if language was added to the definition, implicitly overruling Scherer’s objection. See Tex. R. App. P. 33.1(a)(2)(A) (indicating that trial court’s ruling on objection may be implicit). The next day at the formal charge conference, Scherer offered his proposed definition in writing, which the trial court refused. Given the record, we conclude that Scherer made the trial court aware of his complaint, timely and plainly, and obtained a ruling on it sufficient to preserve error on appeal.” Scherer v. Tex. Coast Yachts, LLC, No. 01-20-00412-CV, 2022 Tex. App. LEXIS 4306, at *17 n.2 (Tex. App.—Houston [1st Dist.] June 23, 2022)

Notice (Default Judgment): “Before turning to the substance of the Craddock test, we must address Wendy’s argument that Paul failed to timely move for new trial and that he failed to preserve the issue for appeal because he did not conduct a Craddock analysis in his motion. First, the trial court found that Paul did not receive notice of the default judgment until January 8, 2020, meaning that Paul’s motion to set aside the default judgment was timely. As to the preservation issue, the record must show that Paul raised the issue complained of to the trial court in the form of a timely request, objection, or motion. Tex. R. App. P. 33.1(a); Laws v. State, 640 S.W.3d 227, 228-29 (Tex. Crim. App. 2022) (a party need not use magic words to preserve error). The motion need only “provide the trial judge and opposing counsel an opportunity to address, and if necessary, correct the purported error.” Laws, 640 S.W.3d at 228-29. Paul’s motion to set aside the default judgment complained of lack of notice to the trial court, so the issue was preserved for appeal. See Tex. R. App. P. 33.1(a).” Hanks v. Hanks, No. 01-20-00205-CV, 2022 Tex. App. LEXIS 4370, at *11-12 (Tex. App.—Houston [1st Dist.] June 28, 2022)

U: “The PUC Parties contend that the Rural Providers may not argue on appeal that the Commission’s June 2020 decision to not collect the needed amount of money to fully fund TUSF is an invalid rule because they did not adequately assert this argument in the trial court, and thus, the PUC Parties do not address whether the June 2020 decision is a “rule” as defined by the APA. The Rural Providers pleaded that the June decision and the Contract Amendment effectively amend or repeal prior Commission rules and orders and that “[o]ral decisions such as the June 12 Decision are prohibited in setting or amending agency rules.” They asserted in their summary-judgment motion that “[t]he Commission’s refusal to set a sufficient assessment rate and the contract amendment violate the APA.” We conclude that they sufficiently raised this point below, and accordingly, we will consider whether the June 2020 decision is a “rule.” See Tex. R. App. P. 33.1.” Tex. Tel. Ass’n & Tex. Statewide Tel. Coop. v. PUC of Tex., No. 03-21-00294-CV, 2022 Tex. App. LEXIS 4530, at *70 n.18 (Tex. App.—Austin June 30, 2022)

Summary Judgment: “The Company claims that Myers waived its appellate argument that the Company does not own the subsurface caverns. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). We disagree.

In the trial court, the Company argued the following in its motion for partial summary judgment: “The cavern that will result from [the Company’s] mining operations will be created entirely out of the salt formation that [the Company] owns. Unlike naturally existing pore space, [the Company] must maintain the artificially-created cavern in order for it to be utilized for storage purposes.” The Company cited Mapco, Inc. v. Carter, stating: “the Beaumont Court of Appeals held that the owner of the fee interest in the salt retains a property interest in the cavern created by its mining activities.” 808 S.W.2d 262, 276 (Tex. App.—Beaumont 1991) (“The underground storage cavern was formed out of the underground mineral salt, being the mineral estate,” thus, “[a]ppellees own all rights and appurtenances to their mineral estate.”) rev’d in part on other grounds 817 S.W.2d 686 (Tex. 1991).

Myers responded by arguing that as the owner of the surface estate, it owned the subsurface estate and that the Company could not claim ownership of the subsurface caverns as a mineral owner. Myers stated:

The grant of the mineral estate in the [deed] expressly granted “the right of ingress and egress and possession at all times for the purpose of mining, drilling and operating for said minerals and the maintenance of facilities and means necessary or convenient for producing, treating and transporting such minerals.” Those are the sole purposes for which the Grantee or its successors could use the Myers Land. There is nothing—not a sentence, phrase or word in the [deed] which could be interpreted as granting the [Company] the right to use the Myers Land for storage.

Therefore, we conclude it did not waive its appellate argument.” Myers-Woodward, LLC v. Underground Servs. Markham, LLC, No. 13-20-00172-CV, 2022 Tex. App. LEXIS 4082, at *25-27 (Tex. App.—Corpus Christi June 16, 2022)

You have to get a ruling on your objection:

Evidence: “Appellants’ arguments are not preserved for review. First, by Appellants stating that they had no objection and the exhibit could be considered, they failed to preserve this issue for review…. Further, the trial court did not rule on the objections which Appellants’ counsel initially stated. Failure to obtain a ruling on an objection waives any complaint in the admission of the evidence. Tex. R. App. P. 33.1(a)(1);” Spalding v. Bennett, No. 02-21-00398-CV, 2022 Tex. App. LEXIS 4147, at *16-17 (Tex. App.—Fort Worth June 16, 2022)

Motions: “In his fourth issue, Father contends the trial court abused its discretion by failing to rule on his pro se motions. Our review of the record indicates that the trial court did not rule on the following motions filed by Father: (1) motion for speedy trial; (2) motion for bench warrant; (3) motion for funding to hire a private investigator; and (4) motion to subpoena witnesses.11 But the record does not show that Father urged the trial court to rule on the motions or objected to the trial court’s failure to rule.

To preserve a complaint on appeal concerning a trial court’s refusal to rule, the record must show that the party presented the motion to the trial court. See Tex. R. App. P. 33.1(a); …The mere fact that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling….

Again, Father’s pro se status does not excuse him from these preservation-of-error requirements….Because the record does not show that the trial court expressly or implicitly ruled on the motion for expenses or that Father objected to any refusal to rule, we conclude that Father has not preserved his fourth issue for appellate review.” In the Int. of H.D.D.B., No. 01-20-00723-CV, 2022 Tex. App. LEXIS 4304, at *31-32 (Tex. App.—Houston [1st Dist.] June 23, 2022)

You have to comply other pertinent rules:

Factual Sufficiency: “Budget waived its factual sufficiency challenge because it did not raise it in its motion for new trial. See Tex. R. Civ. P. 324(b)(2) (“A point in a motion for new trial is a prerequisite to. . . [a] complaint of factual insufficiency of the evidence to support a jury finding.”);” Budget Rent a Car Sys., LLC v. Ozumba, No. 01-20-00408-CV, 2022 Tex. App. LEXIS 4467, at *19 n.6 (Tex. App.—Houston [1st Dist.] June 30, 2022)

Jury Charge: “When the defendant does not file a verified denial of a written instrument, he waives any challenge to the genuineness of the execution of the instrument, and the document is received into evidence as fully proved. George P. Bane, Inc. v. Ballard, No. 05-19-01459-CV, 2021 Tex. App. LEXIS 2176, 2021 WL 1084586, at *4 (Tex. App.—Dallas Mar. 22, 2021, no pet.) (mem. op.) (first citing Tex. R. Civ. P. 93(7); then citing Lissiak v. SW Loan OO, L.P., 499 S.W.3d 481, 494 (Tex. App.—Tyler 2016, no pet.); and then citing FFP Mktg. Co. v. Long Lane Master Trust IV, 169 S.W.3d 402, 410 (Tex. App.—Fort Worth 2005, no pet.)). Here, Douglas filed an unverified general denial. He, therefore, waived any challenge to the genuineness of the execution of the instrument.” Douglas v. Farmers Ins. Fed. Credit Union, No. 05-21-00396-CV, 2022 Tex. App. LEXIS 3784, at *14-15 (Tex. App.—Dallas June 6, 2022)

All for now.  Y’all take good care, enjoy the holiday, and try to stay out of the heat.

Yours, Steve Hayes; 817/371-8759;


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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