In keeping with the typical fiscal year end, we have lots of preservation decisions from both SCOTX and the intermediate courts this week.
Table of Contents
The Supreme Court reaffirmed mootness is an issue which can first be raised on appeal sua sponte by a court, but that a constitutional complaint must be raised in the trial court–and even in the administrative procedure before that
Here is one in which the court held a complaint as to fees was preserved
Standing remains a complaint which can first be raised on appeal
Here is one in which the court held that a party preserve a factual sufficiency complaint in its motion for new trial
This is long, but provides a good exercise in what it takes to preserve a complaint about a jury question, which the court held was not done
This is an interesting one–because the court holds that the party did not preserve its complaint to the form of the temporary injunction order, yet only two courts of appeals have held that an objection to the form of such an order must be preserved in the trial court
You have to get a ruling on the record
Here is one in which the party preserved a complaint at the special appearance hearing
Your complaints must be timely
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
The Supreme Court reaffirmed mootness is an issue which can first be raised on appeal sua sponte by a court, but that a constitutional complaint must be raised in the trial court–and even in the administrative procedure before that:
Mootness: “Mother argues that section 262.201(o) is facially unconstitutional because it deprives parents of procedural due process rights to notice before the Chapter 262 hearing. Mother argues that the provision can never be applied constitutionally because it always operates to deprive notice to transient parents who lack stable housing. Mother also argues the provision is unconstitutional as applied to her because she was not served with citation, either personally or by publication, before the trial [*29] court issued a temporary order to remove her children. The court of appeals, addressing only Mother’s facial challenge, held the statute constitutional because “the statute’s plain language is permissive, not mandatory.” 607 S.W.3d at 409.
We do not reach the merits of the Mother’s arguments, however, because the final order in the suit moots Mother’s constitutional challenges to the temporary order rendered pursuant to section 262.201(o).n. 15 n. 15 Courts may raise jurisdictional issues sua sponte for the first time on appeal. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993)).” In the Interest of J.J.R.S., No. 20-0175, 64 Tex. Sup. Ct. J. 1234, 2021 Tex. LEXIS 446, at *28-29 (June 4, 2021)
Constitution: “As a preliminary matter, we note that Article XI section 9 is a distinct constitutional ground for exemption that is “self-operative,” requiring no legislation to implement it. A&M Consol. Indep. Sch. Dist. v. City of Bryan, 143 Tex. 348, 184 S.W.2d 914, 915 (Tex. 1945). Odyssey did not exhaust its administrative remedies by asking the District for this exemption, nor did it raise Article XI section 9 in the trial court, assign the failure to grant that exemption as error in the court of appeals, or mention the exemption in its petition seeking this Court’s review. Rather, it raised the exemption for the first time in its merits brief after it had been addressed in an amicus brief. The issue of Odyssey’s entitlement to an Article XI section 9 exemption is therefore not properly presented for our review. Nevertheless, considering Article XI section 9 would not change the outcome of this case because that exemption—like Article VIII section 2 of the Constitution and Tax Code section 11.11—requires actual public ownership.” Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., No. 19-0962, 2021 Tex. LEXIS 469, at *17 (June 11, 2021)
Dissent: “To preserve a complaint for appellate review, “a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefor, and obtain a ruling.”The stated grounds for the ruling must be made “with sufficient specificity to make the trial court aware of the complaint.”51Link to the text of the note The rationale behind the preservation rules is that “[p]reservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.” In essence, “the trial court should have the chance to rule on issues that become the subject of the appeal.”Even so, rules of error preservation “should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.” More to the point, a party is always “free to construct new arguments in support of issues properly before the Court.”…Section 11.11(a) of the Tax Code provides a tax exemption for property “owned by this state” and “used for public purposes.” Article 8 of the Constitution authorizes the Legislature to pass laws “exempt[ing] from taxation public property used for public purposes”. [*55] In the trial court, Odyssey raised claims under section 11.11 and Article 8 but not Article 11. Nevertheless, I conclude Odyssey’s Article 11 argument is fairly subsumed in these preserved claims because all three have “public purpose” as an essential element. Because those issues were preserved in the courts below, Odyssey’s argument under Article 11 is essentially a new argument in support of issues properly before the Court, not a new issue that was not preserved.” Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., No. 19-0962, 2021 Tex. LEXIS 469, at *54-55 (June 11, 2021) (footnotes omitted).
Here is one in which the court held a complaint was preserved:
Fees: “To the extent any of the Real Parties in Interest assert that Strban waived the right to contest the fees by not filing an objection to the appointments or the fees themselves, we disagree. Neither the fees nor the appointments are at issue. Rather, the question before us is whether Respondent properly ordered Strban to pay those fees. In his response to Armstrong’s 2021 motion for security for costs, Strban argued that the parties should not be required to give security costs for probable costs of the proceeding. And in his objections to Bates’s and Weismuller’s 2021 applications for interim fees, Strban maintained that the parties should not be ordered to personally pay those fees. Accordingly, Strban raised the pertinent issue in the trial court before presenting it in this original proceeding.” In re Strban, No. 12-21-00049-CV, 2021 Tex. App. LEXIS 4557, at *4 n.5 (Tex. App.—Tyler June 9, 2021)
Standing remains a complaint which can first be raised on appeal:
Standing: “A party seeking affirmative relief [*13] must allege facts in his or her pleading that “affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); see also In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet. dism’d) (“The burden of proof on the issue of standing is on the party asserting standing.”). And courts must consider evidence relevant to jurisdiction, when doing so is necessary to resolve a challenge to the trial court’s jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex. 2004); Bland, 34 S.W.3d at 555.
Bitgood argues on appeal that Appellees should not be able to “use a procedural backdoor in order to overturn an injunction” when Appellees failed to object on the ground of standing at the time of the injunction hearing and then did not timely appeal the temporary injunction order. Standing is an element of subject-matter jurisdiction that may be raised by a party for the first time on appeal or may be considered by the court sua sponte…. In his Reply Brief, Bitgood asserts he is not alleging that Appellees waived their standing argument, but he argues that “[t]he alleged standing issue existed at the time the [temporary] Injunction was granted and [Appellees] should have appealed at that time.”
In the record now before us, Appellees alleged that Bitgood lacked standing [*14] in the trial court, and Appellees also filed a motion to dismiss with the trial court, but even if Appellees had not, this Court is “obligated to review sua sponte issues affecting jurisdiction.” See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). As we have previously discussed, a trial court has a duty to dissolve an injunction where there is fundamental error, such as when the record affirmatively shows that the trial court does not having subject matter jurisdiction due to lack of standing. See Tamez, 206 S.W.3d at 577; Tex. Ass’n of Bus., 852 S.W.2d at 443-45; Pirtle, 629 S.W.2d at 920; Cellular Mktg., Inc., 784 S.W.2d at 735.” Bitgood v. Harkness, No. 09-20-00263-CV, 2021 Tex. App. LEXIS 4571, at *12-14 (Tex. App.—Beaumont June 10, 2021)
Here is one in which the court held that a party preserve a factual sufficiency complaint in its motion for new trial:
Factual Sufficiency: “Martinez argues that Embry [*6] failed to preserve any factual sufficiency challenges for appeal, maintaining that the issues Embry submitted in her Motion were limited to legal sufficiency. To preserve a factual sufficiency challenge for appeal, a party must present the specific complaint to the trial court in a motion for new trial. See Tex. R. Civ. P. 324(b)(2), (3); …. Under Rule 324(b), both “(2) A complaint of factual insufficiency of the evidence to support a jury finding” and “(3) A complaint that a jury finding is against the overwhelming weight of the evidence” are factual sufficiency complaints, differentiated by whether the complaining party had the burden of proof. Tex. R. Civ. P. 324(b)(2), (3); ….To determine whether an issue was waived, we look not only to the wording of the issue, but also to the argument under each heading to assess the intent of the parties. ….
Although Embry’s Motion did not use the label “factual sufficiency,” she complains that there is insufficient evidence to support the jury’s negligence finding in Question No. 1, for which Martinez has the burden of proof. Tex. R. Civ. P. 324(b)(2). In reviewing such a factual sufficiency complaint, we consider all the evidence and will set aside the verdict only if the evidence supporting a jury finding is [*7] so weak or so contrary to the overwhelming weight of all the evidence that the answer should be set aside. …. Embry’s Motion asserts there was “insufficient evidence” to support the jury’s finding of her negligence in Question No. 1 and “overwhelming evidence presented at trial” of Martinez’s negligence (emphasis added). Embry’s Motion then compares the evidence presented by both parties. The Texas Supreme Court recently held that a factual sufficiency complaint was preserved for review where a party cited the legal sufficiency standard, that certain evidence constituted “no more than a scintilla of evidence,” but the legal sufficiency analysis was intertwined with weighing pieces of evidence against countervailing evidence. Lion Copolymer Holdings, 614 S.W.3d at 733 (remanding case for factual sufficiency review not performed by intermediate appellate court). Embry preserved her challenge to the jury finding on Question No. 1.” Embry v. Martinez, No. 05-20-00022-CV, 2021 Tex. App. LEXIS 4465, at *5-7 (Tex. App.—Dallas June 7, 2021)
This is long, but provides a good exercise in what it takes to preserve a complaint about a jury question, which the court held was not done:
Jury Charge: “In its two issues, Valstay argues that the questions submitted to the jury were erroneous. In its first issue, Valstay argues that Question 1, [*8] concerning its statutory breach of contract claim, was erroneous because: (a) it failed to track the statutory language; (b) it improperly limited the jury’s consideration to two specific dates; and (c) it required that Valstay prove knowledge which is not required by the applicable statute and which constitutes an affirmative defense. In its second issue, Valstay argues that Questions 3 and 4, concerning TWIA’s mishandling of the claim, were improperly conditioned on an affirmative answer to Question 1.
We must first determine the extent to which Valstay has preserved its appellate arguments. “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex. R. Civ. P. 274. An objection does not satisfy Rule 274’s requirements unless the grounds for the objection are stated specifically enough so that the trial court is fully cognizant of the grounds of complaint and deliberately chose to overrule the objection. Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 383 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also Tex. R. App. P. 33.1. An appellant does not preserve the issue [*9] of an omitted instruction or question for appellate review unless the appellant: (1) tenders a written request to the trial court for submission of the question, (2) which is “in substantially correct wording.” See Tex. R. Civ. P. 278; Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 637-38 (Tex. 1995). Objections to the charge and requests for instructions must comport with the arguments made on appeal. Baker, 355 S.W.3d at 383.
Two of Valstay’s proposed questions contained the same language that Valstay complains of on appeal. First, like the submitted Question 1, Valstay’s proposed Question 1 asked whether TWIA “failed to comply with the policy” as opposed to asking whether TWIA’s denial of the claim was improper. Second, Valstay objected that Questions 3 and 4 were improperly conditioned on an affirmative finding as to Question 1, buts its proposed “mishandling” question was also conditioned on the jury’s affirmative finding on Question 1. Because Valstay did not submit proposed instructions “in substantially correct wording” that would remedy these alleged deficiencies, we conclude that Valstay has failed to preserve the foregoing complaints for appeal. See Tex. R. Civ. P. 278; Hinds, 904 S.W.2d at 637-38. Accordingly, we overrule sub-issue 1a as well as Valstay’s second issue. We will proceed to address Valstay’s remaining preserved [*10] appellate issues.” Valstay, LLC v. Tex. Windstorm Ins. Ass’n, No. 13-19-00379-CV, 2021 Tex. App. LEXIS 4611, at *7 (Tex. App.—Corpus Christi June 10, 2021)
This is an interesting one–because the court holds that the party did not preserve its complaint to the form of the temporary injunction order, yet only two courts of appeals have held that an objection to the form of such an order must be preserved in the trial court:
Temporary Injunction: “Contrary to AHFC’s argument, AHFC did not specifically object to the form of the proposed temporary injunction order in the trial court. Counsel’s vague statement that “Defendants do not agree to this Proposed Order” did not identify any claimed defect [*12] in the form of the order or otherwise make the trial court aware of the complaint AHFC now raises on appeal with sufficient specificity. The trial court could not divine AHFC’s specific complaints from its vague disapproval of the order, nor did the trial court have an opportunity to rule on any objections because no such objections were ever filed. While AHFC emailed its general disapproval of the order to the trial court’s staff attorney, AHFC did not file any formal objections or its own proposed order for the court’s consideration. See Emerson v. Fires Out, Inc., 735 S.W.2d 492, 493 (Tex. App.—Austin 1987, no pet.) (holding defendants failed to preserve error complaining of Rule 683 defect in temporary injunction order where defendants’ motion for reconsideration did not point out to district court any claimed deficiency in form of order); see also DHJB Dev., 2018 Tex. App. LEXIS 9295, 2018 WL 5987150, at *3 (concluding that defendant’s reliance on its responsive pleading generally asserting that injunctive relief requested by plaintiffs was vague and overbroad was not sufficiently specific to make trial court aware that resulting temporary injunction failed to specify how plaintiffs would suffer irreparable harm); Taylor Hous. Auth., 549 S.W.3d at 880 (concluding municipal housing authority failed to preserve its complaint regarding specificity of temporary [*13] injunction’s stated grounds where it did not raise complaint in trial court).” Austin Hous. Fin. Corp. v. Friends of Brykerwoods LLC, No. 01-20-00314-CV, 2021 Tex. App. LEXIS 4583, at *11-13 (Tex. App.—Houston [1st Dist.] June 10, 2021)
You have to get a ruling on the record:
Continuance: “Appellants assert that, while preparing for trial, they discovered that Lanier sold and vacated her residential property several months before trial began. Appellants moved for a trial continuance, as well as to compel certain discovery. Appellants contend that the trial court orally denied their motions at a hearing, [*7] but we have no record of the hearing. We also see no written order ruling on the motions. Appellants’ failure to obtain a ruling on either motion, or to object to the court’s lack of ruling, renders their complaint unpreserved for appeal. See Tex. R. App. P. 33.1;” Townley v. Lanier, No. 14-19-00447-CV, 2021 Tex. App. LEXIS 4517, at *6-7 (Tex. App.—Houston [14th Dist.] June 8, 2021)
Here is one in which the party preserved a complaint at the special appearance hearing:
Alter Ego: “In issue two, Alpine argues that Gardline Surveys is not its alter ego, and therefore Gardline Surveys’ contacts with Texas cannot be imputed to Alpine. Though Moore states that specific jurisdiction is at issue in the case, not general jurisdiction, one of Moore’s two bases for jurisdiction—that Alpine’s relationship with Gardline Surveys imputes minimum contacts with Texas to Alpine—can only be read to allege that the trial court has general jurisdiction over Alpine. At the hearing on Alpine’s amended special appearance, Moore’s counsel argued that Gardline Surveys owned a 75% interest in Alpine, therefore establishing sufficient minimum contacts between Alpine and Texas. Though this argument was raised for the first time at the hearing on Alpine’s special appearance, it was presented to the trial court at the hearing and preserved for our review. Tex. R. App. P. 33.1(a).” Alpine Ocean Seismic Survey, Inc. v. Moore, No. 14-19-00499-CV, 2021 Tex. App. LEXIS 4515, at *9 (Tex. App.—Houston [14th Dist.] June 8, 2021)
Your complaints must be timely:
Jury Charge: “In her first issue, Embry asserts that the jury charge failed to comply with the Texas Proportionate Responsibility statute because it omitted mandatory statutory language that the trier of fact “shall” determine the percentage of responsibility “stated in whole numbers.” See Tex. Civ. Prac. & Rem. Code Ann. § 33.003(a). Rather than use whole numbers, the jury assigned 82.5% of fault to Embry and 17.5% to Martinez. Martinez asserts that Embry failed to preserve this issue for appeal. We agree.
To preserve error on a jury-charge issue, a party must object to the court’s charge, either in writing or on the record, before the court reads the charge to the jury or the objection is waived. See Tex. R. Civ. P. 272; King Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 843 (Tex. 2014). “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex. R. Civ. P. 274; see Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014). Objections to the court’s charge raised in a motion for a new trial are untimely and preserve nothing for review. Mitchell v. Bank of America, N.A., 156 S.W.3d 622, 627-28 (Tex. App.—Dallas 2004, pet. denied); see also Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 919-20 & n. 3 (Tex. 2015) (objection to wording of charge untimely after charge read to the jury).
While each party submitted a proposed jury charge that included the language [*4] “[t]he percentages must be expressed in whole numbers,” the sentence was omitted in the final charge submitted to the jury, with no objections as to the omission. We disagree with Embry that the omitted charge language constitutes “fundamental error” excusing her failure to preserve the complaint for appeal. The “fundamental error” exception applies to cases where jurisdiction is lacking or an issue affects the broader public interest. See USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 511-13 (Tex. 2018). Embry raises no jurisdictional concern and acknowledges that there is a dearth of case law establishing that omission of similar statutory language from a jury charge constitutes fundamental error. The USAA Court makes clear that “public interest” means “adversely affects the public’s (as opposed to the current parties’) interests.” USAA, 545 S.W.3d at 512. Embry fails to demonstrate how the broader public interest is adversely affected by the omitted language in her charge instructions.” Embry v. Martinez, No. 05-20-00022-CV, 2021 Tex. App. LEXIS 4465, at *3-4 (Tex. App.—Dallas June 7, 2021)
Then of course, there are the complaints which parties simply did not raise in the trial court. See above.
All for now. Y’all take care. The summer is upon us.
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