Error Preservation in Texas Civil Cases, June 11, 2019

Dear All:

Table of Contents

The Blurbs

I missed this one earlier, but the Supreme Court held that one complaint which may be raised for the first time on appeal is a complaint about the specificity of a court order establishing what a parent must do to receive child custody, when a parental-right termination under Family Code Section 161.001(b)(1)(O) is based on a violation of that order:


Order: “Next, we address whether the court of appeals erred in failing to review the trial court’s order to ensure it was sufficiently specific to warrant termination under section 161.001(b)(1)(O). See Tex. Fam. Code § 161.001(b)(1)(O). In essence, to [*14] terminate parental rights under section 161.001(b)(1)(O): (1) the parent must have failed to comply with the provisions of a court order, which (2) specifically established the actions necessary for the parent to receive custody of the child from the Department, which serves as the permanent or temporary conservator of the child. Id. The mother argues that the evidence was legally insufficient to support the first prong of section 161.001(b)(1)(O) and that the lower courts are required to review whether the order was sufficiently specific for the mother to follow. . . . After a permanency hearing, the trial court adopted the Department’s service plan and incorporated it into its order. . . . A trial court order referenced by section 161.001(b)(1)(O) is a mandate or directive that establishes some steps or actions necessary for the parent to obtain return of the child who is in the Department’s custody. See Tex. Fam. Code § 161.001(b)(1)(O); . . . .Section 161.001(b)(1)(O) makes clear that an order must be sufficiently specific to warrant termination of parental rights for failure to comply with it. See Tex. Fam. Code § 161.001(b)(1)(O). . . . . Because a trial court must necessarily decide that a court order is sufficiently specific for the parent to comply before terminating a parent’s rights under section 161.001(b)(1)(O), a trial court cannot terminate parental rights for failure to comply without first considering the order’s specificity. See Tex. Fam. Code § 161.001(b)(1)(O). Likewise, an appellate court errs when it upholds termination under a section 161.001(b)(1)(O) finding without considering the specificity of the order. Here, the court of appeals noted that the mother did not argue the service plan itself was not sufficiently specific, characterizing her challenge as to the specificity of the order only. See ___ S.W.3d at ___, 2018 Tex. App. LEXIS 2723 at *10. Because the trial court incorporated the service plan into the order, however, we conclude that the mother’s challenge encompassed the specificity of the service plan. [The court of appeals] did not address the specificity of the order’s provisions. See id. at ___, 2018 Tex. App. LEXIS 2723 at *11. We hold that the court of appeals erred in failing to address the specificity of the order, which included the service plan. . . . [T]he court of appeals failed to address the specificity of the order under section 161.001(b)(1)(O). Therefore, we remand the case to the court of appeals for further proceedings consistent with this opinion.” In the Interest of N.G., No. 18-0508, 62 Tex. Sup. Ct. J. 1069, 2019 WL 2147263, 2019 Tex. LEXIS 465, at *13-19 (May 17, 2019)

I also cogitated about this one, but decided that this was an error preservation holding, in which the Supreme Court confirmed in a Family Code Chapter 201 proceeding, if you want a jury trial, you better ask for it before the associate judge:


Jury Trial: “Chapter 201 of the Family Code fulfills the statutory promise of a jury trial on demand by allowing for a jury trial in either the referring court or before an associate judge. Associate judge proceedings do not occur by happenstance, nor are they compelled. So with a timely objection, parties can choose to have the referring court adjudicate the merits following a bench or jury trial. But once the parties elect a bench trial before the associate judge, Chapter 201 does not confer a right to demand a jury trial in a de novo hearing. If a de novo hearing is [*20] requested, the referring court has discretion to grant a first-time jury request, but the statute cannot reasonably be read as affording the parties a right to a jury trial at that juncture. And because we agree with the court of appeals that the trial court was not obligated to grant Mother’s jury demand under the circumstances, we affirm the court of appeals’ judgment.” In re A.L.M.-F., No. 17-0603, 62 Tex. Sup. Ct. J. 910, 2019 Tex. LEXIS 426, at *19-20 (May 3, 2019)

You don’t waive service, nor your ability to contest a default judgment taken after invalid service in one case by answering in another lawsuit in the same court:


Service: “ In response, Anissa does not dispute that the record clearly demonstrates that the service returns were deficient, rather she contends that Priscilla waived defective service because she had actual notice of the lawsuit in which the Default Judgment was entered and she generally appeared in the hearing before the trial court in which the challenged Default Judgment was rendered. This argument is without merit.

First, the argument that because Priscilla had actual notice of Cause Number P-08376 and thus waived service is unavailing. It is well established that “[a]ctual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him.” Offshore Express, 2018 WL 6542502, at * 3 (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Harrell v. Mex. Cattle Co., 11 S.W. 863, 865 (Tex. 1889)).

Second, the argument that Priscilla—despite not answering—entered into a general appearance in Cause Number P-08376 when her attorney asked at the May 8, 2018 hearing in Cause Number P-08448 to file an answer in Cause Number P-08376 is creative but ultimately equally unavailing. Anissa is correct that Texas Rule of Civil Procedure 120 provides that a defendant may, “in person, or by attorney, or by his duly authorized agent, enter an appearance in open court” and that “[s]uch appearance shall be noted by the judge upon his docket and entered in the minutes, and shall have the same force and effect as if the citation had been duly issued and served as provided by law.” Tex. R. Civ. P. 120. Anissa is also correct that “a party enters a general appearance when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.” Exito Elecs., Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). But, in this case, Priscilla did not make any appearance in Cause Number P-08376, the lawsuit in which the Default Judgment was entered. The only lawsuit Priscilla or her lawyer appeared in was Cause Number P-08448, Priscilla’s own lawsuit.” Wyatt v. Deal, No. 02-18-00246-CV (Tex. App.–Fort Worth June 6, 2019).

You must comply with the pertinent rules:


Avoidance: “Garza argues that the $260,000 fee awarded to Pruneda was unconscionable and against public policy. However, “[a]n allegation that a provision in a contract is void, unenforceable, or unconscionable is a matter in the nature of avoidance and must be affirmatively pleaded. If a party fails to plead the affirmative defense, it is waived.” Godoy v. Wells Fargo Bank, N.A., 542 S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2017, pet. granted); see Tex. R. Civ. P. 94. In her answer to Pruneda’s suit and in her response to Pruneda’s motion for summary judgment, Garza never argued that the contract was unconscionable. She raised the issue of conscionability for the first time in her motion for new trial. Therefore, Garza has waived this argument.” Garza v. Pruneda, No. 13-18-00222-CV, 2019 Tex. App. LEXIS 4639, at *6 (Tex. App.—Corpus Christi June 6, 2019)

Summary Judgment: “On appeal, Wilson asserts that during the summary judgment hearing she was not permitted “to present email evidence by Plaintiff [the LRC Firm] or evidence of Plaintiffs [sic] misconduct pursuant to Tex. R. Civ. P. 8.04 [sic] and 801.” She argues the trial court [*2] erred by excluding her evidence, which does not appear in the record but is attached to her appellate brief. Because Wilson did not file a response to the motion for summary judgment, the evidence was not before the trial court and, thus, is outside the scope of our review. 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.”); see also D.R. Horton—Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (“A non-movant must present its objections to a summary judgment motion expressly by written answer or other written response to the motion in the trial court or that objection is waived.”). Thus, Wilson’s appellate arguments do not form a proper basis to reverse the trial court’s judgment.” Wilson v. Lamberth Ratcliffe Covington Pllc, No. 05-18-01207-CV, 2019 Tex. App. LEXIS 4696, at *1-2 (Tex. App.—Dallas June 6, 2019)

You have to get a trial court ruling on your complaint:


Affidavits: “Willman objected to Mary Lee’s and Ben Thompson’s affidavits, but the trial court did not explicitly rule on those objections. Where the record does not reflect that the trial court ruled or refused to rule on objections to summary judgment evidence, we may not infer a ruling based solely on the trial court’s summary judgment decision. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018). By failing to obtain an express or implied ruling on his objections to the summary judgment evidence, Willman waived the objections. See Tex. R. App. P. 33.1(a);” In re Estate of Spiller, No. 04-18-00522-CV, 2019 Tex. App. LEXIS 4608, at *11 n.3 (Tex. App.—San Antonio June 5, 2019)

As usual, numerous decisions held that parties failed to preserve error by failing to make their complaints in the trial court.

All for now.

Yours, 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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