Error Preservation in Texas Civil Cases, June 17, 2019

Dear All:

Table of Contents

The Blurbs

Your complaint has to be timely–and the Supreme Court extensively discussed that concept of timeliness, in the context of a Chapter 150 dismissal for lack of a certificate of merit, while the dissent pointed out that one might be estopped to raise a complaint, even though the complaint was not waived:


Certificate of Merit (Majority): “Under Chapter 150, both a certificate of merit and the consequence for failing to file one are mandatory. But as our analysis in Crosstex tacitly recognizes, when defendants have so engaged the judicial process that a certificate of merit ceases to serve its intended function, the requirement of its filing is waived. And when the right to a threshold affirmation of merit has been waived, the consequence for failing to file one dissipates. In other words, because the Engineers’ substantial invocation of the judicial process implied an intent to waive the certificate-of-merit requirement, the statutory basis for dismissal has likewise been waived. We therefore affirm the court of appeals’ judgment finding waiver of the statutory right to dismissal and remand the case to the trial court.” Lalonde v. Gosnell, No. 16-0966, 2019 Tex. LEXIS 579, at *27 (June 14, 2019) (Guzman, J., for the majority)

Dissent: “Ultimately, two fundamental truths should determine the outcome of this case. First, chapter 150 gave the engineers the right to obtain dismissal of the homeowners’ claims at any time during this litigation process. And second, we cannot hold that the engineers impliedly waived that right through litigation conduct unless that conduct clearly demonstrated that they knew about and intended to relinquish that right. Because the statute did not require them to seek dismissal early in the process or prohibit them from engaging in litigation before seeking dismissal, none of their conduct clearly demonstrated an intent to relinquish their right to obtain dismissal when and as the statute allowed. I would therefore reverse the court of appeals’ judgment and reinstate the trial court’s judgment dismissing the homeowners’ claims. Because the Court does not, I respectfully dissent.” Lalonde v. Gosnell, No. 16-0966, 2019 Tex. LEXIS 579, at *44 (June 14, 2019) (Boyd, J., dissenting, joined by Hecht, CJ, and Blacklock, J.).

One court of appeals implied that a party may first complain on appeal that action by the trial court on remand was inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate.


Trial Court Action Beyond Mandate: At least one court of appeals has implied that a party can first complain on appeal that, on remand, the trial court took an action that is inconsistent with or beyond what is necessary to give full effect to the appellate court’s judgment and mandate. Scott Pelley P.C. v. Wynne, No. 05-18-00550-CV, 2019 Tex. App. LEXIS 4943, at *5 (Tex. App.—Dallas June 13, 2019). It is unclear whether the Pelley Court actually held such a complaint could first be raised on the appeal after remand–in Pelley, the appellants “contend[ed] the trial court’s award . . . exceeded this Court’s mandate,” the appellees “argue[d] the [appellants] failed to preserve the issued for appeal,” and the Court held that “[w]hen [as here] a trial court exceeds its authority under a mandate, the resulting judgment is erroneous,” without addressing whether appellants had preserved the complaint in the trial court. Scott Pelley P.C. v. Wynne, No. 05-18-00550-CV, __WL__, 2019 Tex. App. LEXIS 4943, at *4-5, 6 (Tex. App.—Dallas June 13, 2019, no pet. hist.) (Opinion).

Legal and factual insufficiency complaint can be raised for the first time on appeal from a bench trial:


Attorney’s Fees: “In her third issue, Hines contends there was no-evidence or insufficient evidence to support an award for attorney’s fees. Maple counters this argument by claiming Hines failed to object at trial to the reasonableness of the attorney’s fees, so she waived any claim of error. Maple further asserts “the testimony and argument of counsel were sufficient” to uphold an award of attorney’s fees. At trial, Maple’s representative testified that she had to retain an attorney to handle the appeal in county court at law, and she paid the attorney $500.00. We examine a no evidence challenge on appeal as a challenge to the legal sufficiency of the evidence. . . . . Generally, an appellant must preserve complaints for appellate review through a timely request, objection, or motion and obtain a ruling in the trial court. . . . .However, “[i]n a civil nonjury case, 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. 33.1(d). Hines did not waive her no-evidence challenge to the attorney’s fee award by raising it for the first time on appeal.” Hines v. Maple Hous. of Beaumont, No. 09-17-00381-CV, 2019 Tex. App. LEXIS 4912, at *9 (Tex. App.—Beaumont June 13, 2019)

Possession and Access Order: “[H] asserts that [P] did not preserve error concerning the sufficiency of the evidence because she did not file a request for findings of fact and conclusions of law or a motion for new trial. But the sufficiency issues in this case concern the evidence on issues tried to the court, not the issue tried to the jury. “In a civil nonjury case, [*10] 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.” In the Interest of S.H., No. 08-16-00052-CV, 2019 Tex. App. LEXIS 4843, at *9 (Tex. App.—El Paso June 12, 2019)

Here is a case holding that an evidentiary objection which was preserved, because of the carryover effect from an immediately preceding objection:


Evidence: “By arguing only relevance to the trial court when objecting to the sexual-assault indictment, it appears at first blush that Father failed to preserve his appellate hearsay argument. See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1)(B); . . . .But we conclude that Father did not waive this issue because the other indictments had been admitted over his hearsay objection immediately [*4] before the State offered the sexual-assault indictments, allowing Father to assume that the trial court’s ruling would be the same and relieving him of the duty to again object on the basis of hearsay to this similar evidence. See, e.g., Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-91 (Tex. App.—Waco 2000, pet. denied) (op. on reh’g); Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 243 (Tex. App.—Corpus Christi—Edinburg 1994, writ denied); City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App.—Fort Worth 1988, writ denied).” In the Interest of A.W., No. 02-19-00057-CV, 2019 Tex. App. LEXIS 4938, at *3-4 (Tex. App.—Fort Worth June 13, 2019)

Here are a couple of cases which addressed whether the complaint was sufficiently specific:


Arbitration: “ReadyOne attacks reliance on the purported Rule 11 agreement on both substantive and procedural grounds. We address ReadyOne’s procedural objection first. ReadyOne contends that notwithstanding the validity of any purported Rule 11 agreement precluding the appointment of JWA, Guillen-Chavez waived any objection to the arbitrator by failing to [*12] renew her objection to the arbitrator’s authority before the arbitrator himself. See Brook v. Peak Int’l, Ltd., 294 F.3d 668, 673-74 (5th Cir. 2002)(objections to constitution of arbitration panel must be stated at beginning of arbitration). Thus, even if a valid Rule 11 agreement formed on the terms that Guillen-Chavez advances in this Court and in the court below, her failure to repeat this specific point before the arbitrator waived her ability to rely on the Rule 11 agreement on appeal in this Court. In the first place, we observe that Guillen-Chavez did object at length to the seating of the arbitrator based on the fact that he was not from El Paso. ReadyOne urges us to look deeper into Guillen-Chavez’s objection and hold that the argument was not preserved because her argument that the arbitrator is “not from El Paso” was based not on the assertion of a contractual right to have an El Paso arbitrator, but on her perception that the arbitrator could not be fair due to a lack of political and cultural understanding of the El Paso’s unique cross-border environment. This distinction walks a razor’s edge. Indeed, it is hard to determine whether the arguments raised when Guillen-Chavez objected to the arbitrator being from outside of El Paso were separate from [*13] her contractual right-to-a-local-arbitrator argument, or whether those concerns merely informed an objection on contractual grounds to the arbitrator being from out-of-town. Apart from this record ambiguity, we also find ReadyOne’s preservation argument difficult to square with the reality that the contested issue of arbitrator identity was extensively and heavily litigated for months in district court.” Guillen-Chavez v. ReadyOne Indus., No. 08-17-00046-CV, 2019 Tex. App. LEXIS 4841, at *11-13 (Tex. App.—El Paso June 12, 2019)

Evidence: “Appellant also asks us to review its other objections to appellees’ reply evidence. We conclude these objections were not sufficiently specific to preserve error for review. See Tex. R. App. P. 33.1(a)(1)(A) (objections must be made “with sufficient specificity to [*19] make the trial court aware of the complaint”). For example, appellant made the following global objection to the trial court: “[Appellant] objects to the emails offered as Exhibits 1 through 40, for the reason that each contains inadmissible hearsay. Tex. R. Evid. 801.” The cardinal rule of error preservation is that an objection must be clear enough to give the trial court an opportunity to correct the alleged error. Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008). Without specifying which statements in each of the forty emails were hearsay, the trial court was left to guess. The fact that the trial court overruled all of appellant’s objections does not in itself preserve error; the objection must have been sufficiently specific in the first instance. See Tex. R. App. P. 33.1(a) (requiring both a specific objection “and” a ruling). Moreover, without specific objections, there is simply nothing for us to review; like the trial court, we are left to guess.” Duncan Litig. Invs., LLC v. Watts, No. 13-18-00265-CV, 2019 Tex. App. LEXIS 4856, at *18-19 (Tex. App.—Corpus Christi June 13, 2019)

You have to comply with the pertinent rules:


Special Appearance: “Although ad litem counsel argued during closing arguments that the trial [*32] court lacked personal jurisdiction over Jeffrey because he had never been served with process, counsel also questioned witnesses, elicited testimony that Jeffrey had not directly harmed Jennifer by his actions, objected on multiple occasions to the admissibility of evidence, questioned a witness on voir dire, requested that the trial court take judicial notice of its entire file, and argued that the Department had not met its burden of establishing, by clear and convincing evidence, that Jeffrey had endangered Jennifer and that termination of his parent rights was in her best interest. Ad litem counsel’s actions at the final hearing “invoked the judgment of the court on a question other than the court’s jurisdiction, recognized that the action was properly pending in Texas, and sought affirmative action from [the trial] court.” See In re D.M.B., 467 S.W.3d at 104; see also Beistel v. Allen, No. 01-06-00246-CV, 2007 Tex. App. LEXIS 4307, 2007 WL 1559840, at *3 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.) (mem. op.) (holding that party made general appearance through counsel when, at hearing to determine whether to terminate wage-withholding obligation, counsel objected to admission of other party’s exhibit, which was affirmative action that impliedly recognized court’s jurisdiction over party). We hold that Jeffrey generally appeared through ad [*33] litem counsel and, therefore, has waived his complaint that the Department violated his due process rights by failing to serve him with process. See In re R.A.G., 545 S.W.3d at 655 (holding that party generally appeared when party answered, appeared at trial by telephone, and his attorney questioned witnesses and made final argument); In re D.M.B., 467 S.W.3d at 103-04 (holding that party generally appeared when ad litem attorney attended adversary hearing and made objections to Department’s request for temporary restraining order and to admissibility of evidence).” In re M.D.M., No. 01-18-01142-CV, 2019 Tex. App. LEXIS 4927, at *31-33 (Tex. App.—Houston [1st Dist.] June 13, 2019)

You have to get a ruling on your complaint:


Dismissal: “We first consider whether the trial court’s alleged error in not dismissing the case rendered the judgment void or merely voidable. “[A] judgment is void only when it is shown that the court had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court.” Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). The dismissal dates in the version of section 263.401 applicable to this case are not jurisdictional. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 641-42 (Tex. 2009) (orig. proceeding). A judgment is not void merely because it was made after the dismissal dates in that version of section 263.401. If a judgment is merely voidable, challenges to that judgment are subject to the rules for preservation of error. See Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 923 (Tex. 2011). To preserve a complaint for appellate review, the record must show (1) the complaint was made to the trial court by a timely and sufficiently specific request, objection, or motion, and (2) the trial court either ruled on the request, objection, or motion, or the trial court refused to rule [*5] and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). We assume for the sake of argument that Grandparents’ motion was timely. The record does not reflect that the trial court ruled on the motion, nor does it reflect that Grandparents sought a ruling but the trial court refused to rule. Grandparents did not mention the motion to dismiss when trial resumed on October 22. Based on these facts, we conclude Grandparents have not preserved error regarding dismissal. We overrule their first issue.” In re P.N.T., No. 14-18-01115-CV, 2019 Tex. App. LEXIS 4743, at *4-5 (Tex. App.—Houston [14th Dist.] June 11, 2019)

The complaint you raise on appeal must be the complaint you raised in the trial court:


Jury Charge: “At the charge conference, Ramji objected to the use of the word “damages” in Jury Question 3 and requested that the term “lost profits” be used instead. He also objected that “the instruction on the elements of damages is defective because there is no evidence that there was a pending sale of the properties to [Ramji] at the time of the alleged interference.” However, he never objected to the instruction using the difference between the price that 6100 Clarkson had to agreed to pay the Clarks [*14] and “the amount [it] would have made on the sale of the properties to [Ramji],” nor did he suggest or request that the jury be instructed to look at the 2016 sales price price of the properties in calculating the damages. Thus, to the extent that Ramji is complaining about the instruction regarding the measure of damages submitted to the jury in Jury Question 3, the issue is waived. . . . .Thus, damages are measured by the instruction given. See Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007).” Ramji v. 6100 Clarkson, L.P., No. 01-18-00044-CV, 2019 Tex. App. LEXIS 4926, at *13-14 (Tex. App.—Houston [1st Dist.] June 13, 2019)

We then had the typical significant number of cases which held that parties failed to preserve error because they did not raised their complaint 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.

Scroll to Top