Error Preservation in Texas Civil Cases, July 9, 2022

July 9, 2022

Dearly Beloved:

Don’t know what to say, except it looks like we’re in for a long, hot summer (maybe someone ought to write a book).

Table of Contents

Here is an interesting case in which the court of appeals held that a party did not waive its claim of privilege as to certain documents in discovery


You must preserve your complaint in the trial court-and preserving another complaint will not suffice

Abatement (Dominant Jurisdiction)
Expert Report (Healthcare Liability)

You have to comply other pertinent rules


Factual Sufficiency

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



Here is an interesting case in which the court of appeals addressed the triggering and satisfying of the need for a privilege log, and held that a party did not waive its claim of privilege as to certain documents in discovery:

Privilege: “Halliburton explained in briefing and at the hearing, at the time it responded to the requests for production, it had neither reviewed, nor produced any documents. Thus, when Harris requested a privilege log a few days after receiving Halliburton’s responses, such request for a privilege log was premature because Halliburton had not yet provided a withholding statement in compliance with Rule 193.3. See id. To the extent that the trial court determined that Halliburton waived its privileges by not sending a privilege log within 15 days after Harris requested one, the trial court abused its discretion.

We also note that Halliburton never expressly indicated that it was waiving a privilege, nor did it impliedly represent through conduct that it was waiving its privileges.9 See G.T. Leach Builders, 458 S.W.3d at 511. Based on Halliburton’s responses to discovery, its conduct in informing Harris that it would produce a privilege log after substantial completion of discovery, providing a privilege log consistent with its communication, and then providing two supplemental privilege logs and a letter indicating that it had withheld privileged documents, we conclude that Halliburton properly designated its documents as privileged, so as not to waive its privilege to the withheld documents.

Harris contends that Halliburton waived its privileges because it did not produce a timely withholding statement and did not produce a privilege log until 19 months after it was original requested. Harris relies on two authorities in support of its argument that Halliburton waived its privileges. See In re Anderson, 163 S.W.3d 136 (Tex. App.—San Antonio 2005, orig. proceeding) and In re Soto, 270 S.W.3d 732 (Tex. App.—Amarillo 2008, orig. proceeding). Both of these cases, however, involved a party who failed to identify documents withheld as privileged. Unlike Anderson and Soto, Halliburton submitted a privilege log, two supplemental privilege logs, and a letter further indicating that the documents included in its logs were privileged on the basis of the attorney-client privilege. Thus, the cases on which Harris relies do not support a waiver of Halliburton’s privileges. And as stated earlier, Harris’s request for a privilege log was premature and thus, the 15-day deadline for Halliburton to produce a privilege log had not been triggered. See Tex. R. Civ. P. 193.3(b) (stating, after response indicating that material or information has been withheld, party seeking discovery may request that withholding party identify information and material withheld and response must be complied with within 15 days).” In re Halliburton Energy Servs., No. 01-22-00009-CV, 2022 Tex. App. LEXIS 4630, at *14-16 (Tex. App.—Houston [1st Dist.] July 7, 2022)

You must preserve your complaint in the trial court-and preserving another complaint will not suffice:

Abatement (Dominant Jurisdiction): “A motion to transfer venue is not a proper method for drawing a court’s attention to another court’s possible dominant jurisdiction.  Hiles v. Arnie & Co., P.C., 402 S.W.3d 820, 829 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see also In re Puig, 351 S.W.3d at 306. Accordingly, we hold that Olga’s motion to transfer venue did not preserve the dominant-jurisdiction argument she presents on appeal. See Tate v. Andrews, 372 S.W.3d 751, 754 (Tex. App.—Dallas 2012, no pet.) (issue was not preserved where appellants’ argument on appeal did not comport with argument made in the trial court).” Rivkin v. Elgalad, No. 05-21-00551-CV, 2022 Tex. App. LEXIS 4652, at *13 (Tex. App.—Dallas July 6, 2022)

Expert Report (Healthcare Liability): “The Hospital’s first issue concerns the report’s standard of care and breach opinions, but the Poteet family contends that the Hospital’s challenges to Dr. Cramer’s standard of care and breach opinions are made for the first time on appeal. We address both parties’ contentions.

The Hospital’s objections in the trial court to Dr. Cramer’s amended report set out the legal standards relevant to all required opinions in a Chapter 74’s expert report; for standard of care, breach, and causation. In the conclusion of its argument the Hospital attacks, albeit generically, all statutory elements (including standard of care and breach) in its statement: “Dr. Cramer’s report fails to satisfy Chapter 74’s expert report requirements because it contains only conclusions about the statutory elements in Section 74.351”. These facts tend to support that the argument was preserved.

But, to the Poteet Family’s preservation point, the analytical section of the Hospital’s trial court objection primarily directed the court to review specific complaints to Dr. Cramer’s causation opinions; not the standard of care or breach opinions. And, at the hearing, the Hospital’s attorney focused on Dr. Cramer’s causation opinion. Moreover, on appeal, the Hospital’s standard of care and breach arguments relate to the Hospital’s comparison of facts stated in the report with selected medical records. The Hospital argues that the assumptions that underlie Dr. Cramer’s expert report are belied by selected medical records. Though the Hospital raised this extrinsic-evidence argument, it did not characterize it as an attack on the report’s standard of care and breach opinions.

But even if we presume for the sake of argument that the court should have been aware that these arguments were challenges to Dr. Cramer’s standard of care and breach opinions, there are two problems with the Hospital’s arguments. First, the Hospital’s extrinsic-evidence arguments (whether directed at the standard of care, breach or causation) were not timely supported by the medical records at the time of the court’s ruling on the objections, and therefore not preserved…. The medical records were not filed with the trial court until the Hospital filed its motion for reconsideration which was never submitted nor ruled upon. Second, even if the records had been filed with the trial court in the original objection to the expert report, they would have fallen outside the trial court’s review, which was limited to the four corners of the expert report.” N. Hous. Trmc v. Poteet, No. 14-20-00698-CV, 2022 Tex. App. LEXIS 4615, at *10-12 (Tex. App.—Houston [14th Dist.] July 7, 2022)

You have to comply other pertinent rules:

Continuance: “In her first issue, Connie contends the trial court abused its discretion by failing “to grant a reasonable request for continuance.” In order to preserve error for appellate review, the record must show (1) the complaint was timely presented to the trial court, and (2) the trial court either (a) ruled on the request, objection or motion, or (b) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal to rule. Tex. R. App. P. 33.1(a). Connie has not met these requirements….The record establishes that Connie received the notice of submission date on May 29, 2020, more than twenty-one days before June 25, 2020. Yet, Connie’s counsel waited four days after the submission date to file the motion for continuance. That motion was untimely….Connie, therefore, failed to meet the first requirement to preserve error on this issue. Further, Connie has not established the remaining preservation requirements. The record does not show that the motion for continuance was set for hearing, that the trial court ruled on the motion, or that Connie objected to the trial court’s failure to rule. Connie, therefore, failed to preserve error on this issue….Because Connie failed to preserve error, we overrule her first issue.” Geldreich v. Geldreich, No. 05-20-00702-CV, 2022 Tex. App. LEXIS 4674, at *6-9 (Tex. App.—Dallas July 7, 2022)

Factual Sufficiency: “But this is not the standard of review we apply to a factual sufficiency challenge. Instead of looking at isolated facts that tend to negate the jury finding, we are to consider and weigh all of the pertinent evidence in the record….Only if the finding is so contrary to the overwhelming weight of all the evidence as to be manifestly unjust, shock the conscious, or clearly demonstrate bias are we to set aside the finding and order a new trial….But before we begin this evidentiary review, we first make a threshold inquiry: has Blue’s factual sufficiency challenge been preserved for our review? To preserve error, Blue must have complained in a motion for new trial that the jury’s answer was against the overwhelming weight of the evidence. Tex. R. Civ. P. 324(b)(2)-(3); …The record here does not show that Blue filed any motion for new trial. See Tex. R. App. P. 34.5(a)(6) (providing that the clerk’s record must include copies of any post-judgment motion). Thus, Blue’s factual sufficiency complaint has not been preserved for our review.” Blue v. Hanshaw, No. 02-21-00228-CV, 2022 Tex. App. LEXIS 4673, at *4 (Tex. App.—Fort Worth July 7, 2022)

All for now.  Y’all stay safe, well, and cool.

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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