Error Preservation in Texas Civil Cases, July 5, 2018

Hidy Ho.

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The Supreme Court once again weighed in on whether an implied ruling could preserve an objection to summary judgment evidence.  While not as clear as I would like, I still think a written ruling of some kind is probably required, but in any event everyone should keep following the best practice of getting a written order as to your objections, to avoid an expensive, tedious, confusing error preservation fight that does not get you any closer to the resolution of your case:


Back in 2017, the Supreme Court held that when “[t]he record contains no order sustaining the objection,” an objection to “late-filed summary-judgment evidence. . . . has been waived,” because “[e]ven objected-to evidence remains valid summary-judgment proof ‘unless an order sustaining the objection is reduced to writing, signed, and entered of record.’” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017). Rincones failed to deal with the language in 33.1(a)(2)(A) allowing an implied ruling on an objection, but at least it had straightforward language requiring a written ruling.

Last week, without mentioning Rincones, the Supreme Court potentially injected uncertainty into this area. Seim v. Allstate Tex. Lloyds, No. 17-0488, 2018 Tex. LEXIS 648 (June 29, 2018). Seim v. Allstate Tex. Lloyds dealt with an objection to the form of an affidavit, apparently the failure of a notary to sign a jurat. Seim, at *5-6. In Seim, the Supreme Court first seemed to endorse the holding in Rincones by saying that “[w]e hold the Fourth and Fourteenth courts have it right,” endorsing those courts’ holdings that “it is incumbent upon the party asserting objections [as to an affidavit’s form] to obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver,” citing Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.-Houston [14th Dist.] 2000, pet. denied), and that ” a trial court’s ruling on an objection to summary[-]judgment evidence is not implicit in its ruling on the motion for summary judgment,” citing Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.-San Antonio 2000, no pet.). But instead of invoking Rincones, and holding that there was no “order sustaining the objection . . . reduced to writing, signed and entered of record,” the Court went off on the implied ruling tangent, saying that “nothing in this record serves as a clearly implied ruling by the trial court on Allstate’s objections” to a summary judgment affidavit. Pursuing the implied ruling tangent further, the Supreme Court pointed out that “even without the objections, the trial court could have granted summary judgment against the [Plaintiffs] if it found that their evidence did not generate a genuine issue of material fact,” a fact which Defendant “has argued . . . in its briefing to this Court.” Seim, at *11-12. The Court then held that the objection as to form was waived because Defendant “failed to obtain a ruling from the trial court on its objections to the affidavit’s form,” leaving us to wonder if that ruling must be in writing, or if an implied ruling is good enough, or whether a ruling on a motion for summary judgment may be an acceptable implied ruling if the trial court could not have granted summary judgment if the objected to evidence created a fact issue-thus putting the courts of appeals back in the position of having to address the objected to evidence. Seim, at *12-13. In any event, the Supreme Court reversed and remanded the case to the court of appeals, for it to consider whether the Defendant was “still entitled to summary judgment on other grounds.” Seim, at *13.

Interestingly, here is a case in which a trial court did issue a written ruling on objections to summary judgment evidence (depositions), albeit in an informal (though signed) fashion, by taking a copy of the objections, writing a ruling on each one, and signing it:


Summary Judgment: “Turning to Yarbrough’s contention that GRC’s objections are waived because the trial court did not enter a written ruling, we disagree.  “To preserve objections to the form of summary-judgment evidence for appeal, a party asserting the objections must obtain a ruling at or before the summary judgment hearing.” Williams v. Bad-Dab, Inc., No. 01-11-00102-CV, 2012 Tex. App. LEXIS 7725, 2012 WL 3776347, at *6 (Tex. App.—Houston [1st Dist.] Aug. 30, 2012, no pet.) (mem. [*9] op.) (citing Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); Tex. R. App. P. 33.1(a)(1); Tex. R. Civ. P. 166a(f)). Pertinent to this case, objections to leading questions and hearsay are defects in form, and thus, require a ruling for appellate review. Williams, 2012 Tex. App. LEXIS 7725, 2012 WL 3776347, at *6 (stating objection to hearsay is defect in form); Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 (Tex. App. 1998) (specifying objections to question as leading is an objection to form). The party objecting to summary judgment evidence bears the burden to obtain a ruling on that party’s objections. Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 99 (Tex. App.—Dallas 2010, pet. denied). One way the burden is satisfied is if the record affirmatively indicates the trial court ruled on the objections. Id. Here, at the summary judgment hearing, GRC filed written objections to portions of Broderick’s and Jones’s presuit deposition testimony. In its written filing, GRC specified which portions of deposition testimony it objected to by referencing the location of the testimony by page and line numbers. Next to each objection, the trial judge noted “Denied” or “G,” and handwrote the phrase “Ordered as noted & Bench filed 2-23-2016” on the first page of GRC’s written objections. The phrase was followed by the trial judge’s signature. Based on this record before us, we conclude the record affirmatively demonstrates the trial court ruled on each of the objections by writing its ruling next [*10] to each objection and including the phrase “Ordered as noted” along with the judge’s signature. See id. Yarbrough contends, however, the judge’s notations of “Denied” or “G” are insufficient to constitute a written ruling, comparing the notations to a docket sheet entry, which are not written rulings. See In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Entries made in a judge’s docket are not accepted as a substitute for that record. The order must be reduced to writing, signed by the trial court, and entered in the record.”). Contrary to Yarbrough’s contention, the judge’s notations are not entries to the docket sheet, but rather are written rulings to each objection set forth by GRC. See id. Moreover, the rulings are signed by the trial court. See id. Thus, the filing itself affirmatively demonstrates the trial judge’s rulings. See Mitchell, 310 S.W.3d at 99. Accordingly, because we conclude GRC secured a written ruling as to each of its objections to the deposition testimony of Broderick and Jones, we hold GRC did not waive its objections.” Yarbrough v. McCormick, No. 04-17-00283-CV, 2018 Tex. App. LEXIS 4719, at *8 (App.—San Antonio June 27, 2018).

Some complaints may be raised for the first time on appeal:


Subject Matter Jurisdiction: “On appeal, the United States argues the trial [*4] court properly dismissed the school district’s trespass to try title claim because the trial court, a state district court, lacked jurisdiction over the claim. The United States made this argument in its petition in intervention, but it did not present it to the trial court. However, because HN1 subject matter jurisdiction is an issue that may be raised for the first time on appeal, we will address the United States’s jurisdictional argument.” Rio Grande City Consol. Indep. Sch. Dist. v. City of Rio Grande, No. 04-17-00346-CV, 2018 Tex. App. LEXIS 4712, at *3-4 (App.—San Antonio June 27, 2018)

Your objection must be timely–neither to early nor too late:


Visiting Judge: “Here, Misty’s October 19, 2017 objection is ineffective because she made it before Judge Burgess was assigned to the case on February 6, 2018. See Carnera, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2 (holding pro forma objection “to the assignment of this matter to an associate or visiting [judge] for trial on the merits” contained in petition was insufficient to object to later-assigned [*4] visiting judge). Further, Misty waived any objection by proceeding to trial before Judge Burgess without making him aware of the objection or requesting a ruling before trial commenced on February 12, 2018. See id. (holding any objection to visiting judge was waived where both parties proceeded to trial without requesting a ruling).” In the Interest of S.Q., No. 04-18-00119-CV, 2018 Tex. App. LEXIS 4688, at *3-4 (App.—San Antonio June 27, 2018)

You have to comply with the pertinent rules to preserve your complaint:


Factual Sufficiency: “Appellants’ first issue also appears to challenge the factual sufficiency of the evidence to support the jury’s alter-ego findings. To the extent that it does so, that issue is waived because it was not raised in appellants’ motion for new trial. See Tex. R. Civ. P. 324 (b)(2) (“A point in a motion for new trial is a prerequisite to the following complaints on appeal: . . . [a] complaint of factual insufficiency of the evidence to support a jury finding.”).” Control Works, Inc. v. Seeman, No. 01-17-00212-CV, 2018 Tex. App. LEXIS 4829, at *6 (App.—Houston [1st Dist.] June 28, 2018)

Sometimes, a ruling on an objection can be implied from a trial court’s order:


Accounting: “Nancy filed an application to resign, a notice of conditional resignation, and an application for appointment of a successor dependent administrator. In Paul’s First Objections, he expressly argued, among other things, that Nancy’s application to resign did not comply with Texas Estates Code section 361.001 because she had not provided a full and [*15] verified accounting for the estate. This phase of the proceeding ended on January 12, 2017, when the trial court rendered its First Order accepting Nancy’s resignation and appointing Reiner as dependent administrator. The trial court expressly stated in its First Order that it considered Paul’s objections, and because Paul objected on the ground that the absence of a verified accounting rendered Nancy’s application defective, the trial court’s acceptance of her resignation implicitly overruled Paul’s objection that a verified accounting is required. Cf. Tex. R. App. P. 33.1(a)(2)(A) (a trial court’s implicit ruling on a complaint brought by timely request, objection , or motion is preserved for appellate review).” Estate of Nunu, No. 14-17-00495-CV, 2018 Tex. App. LEXIS 4776, at *14-15 (App.—Houston [14th Dist.] June 28, 2018)

Here is one in which the party preserved a complaint about the lack of specificity in a sanctions order:


Sanctions: “After the trial court found that Pajooh’s allegations were groundless and granted appellees’ motion for sanctions during the hearing on the motion, Pajooh informed the court that he needed to know the basis for the court’s finding that his claims were groundless and brought in bad faith. In his motion for new trial, Pajooh argued that the trial court committed [*10] reversible error by failing to comply with Rule 13’s particularity requirement. Because he raised a challenge to the trial court’s sanctions order based on the lack of particularity in a post-judgment motion and requested fact findings supporting the trial court’s conclusion that his claims were groundless and brought in bad faith, we conclude that Pajooh has preserved this issue for our review. Cf. Wilner, 2012 Tex. App. LEXIS 9064, 2012 WL 5311147, at *7 (holding party failed to preserve complaint regarding particularity requirement of Rule 13 because party “failed to raise any challenge to the sanctions order before the trial court, either at the trial setting at which the court imposed the sanctions or in a post-judgment motion”).” Massood Danesh Pajooh v. Miller, No. 01-16-00927-CV, 2018 Tex. App. LEXIS 4964, at *9 (App.—Houston [1st Dist.] July 3, 2018)

The complaint you pursue on appeal must comport with the complaint you made at trial:


New Trial: “In his fifth issue, Pajooh argues on appeal that the trial court abused its discretion by denying his motion for new trial in light of newly discovered evidence, i.e., appellate court opinions in related cases. Although he asserted various arguments in support of his motion, Pajooh did not argue to the trial court that it should grant him a new trial based on newly discovered evidence. In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court. See Ferrara v. Moore, 318 S.W.3d 487, 496 (Tex. App.—Texarkana 2010, pet. denied). Because Pajooh’s appellate argument does not comport with the arguments he presented in his motion for new trial, Pajooh’s fifth issue has not been preserved for appellate review. See id. Massood Danesh Pajooh v. Miller, No. 01-16-00927-CV, 2018 Tex. App. LEXIS 4964, at *12 (App.—Houston [1st Dist.] July 3, 2018)

There were then a bunch of cases in which parties failed to preserve error by not raising their complaints in the trial court, but I will not go into those here.

I hope this helps. Y’all take 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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