Error Preservation in Texas Civil Cases, June 18, 2018

Dear All:

Table of Contents


While it may be limited to its facts, or to Texas Citizens Participation Act cases, in a recent case the Supreme Court reiterated that “‘parties are free to construct new arguments [on appeal] in support of issues properly before the Court’,” and that a party is “not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive”:


Dismissal: The court of appeals found that Adams failed to preserve arguments based on community or environmental well-being by failing to raise them in the trial court. S.W.3d at n.4, 2016 Tex. App. LEXIS 6840. We are not convinced that Adams failed to argue community and environmental well-being in the trial court, as he expressly mentioned these concerns at the hearing on the motion to dismiss. Further, the court of appeals imposed too strict a view of error preservation in this context. Rules of error preservation should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case. Adams raised as an issue in the trial court and the court of appeals that he was entitled to dismissal under the TCPA because the defamation claim was based on his speech about a matter of public concern. He was not required on appeal or at trial  to rely on precisely the same case law or statutory subpart that we now find persuasive. See Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”); . . . Moreover, the unique language of the TCPA directs courts to decide its applicability based on a holistic review of the pleadings. Section 27.006(a) provides that when considering a TCPA motion to dismiss, the court “shall consider the pleadings and supporting and opposing affidavits.” In TCPA appeals, we have decided whether communications are matters of public concern under a de novo standard of review, suggesting that the determination is one of law.” Adams v. Starside Custom Builders, LLC, No. 16-0786, ___WL___, 2018 Tex. LEXIS 327, at *14-16 (Apr. 20, 2018)

While the facts of this Supreme Court opinion reflect some circumstances where the basis for admitting evidence is established, I would continue to recommend that your offer of proof expressly show everything necessary to support the admission of evidence:


Experts: “To testify as an expert, a witness must be qualified, and the proposed testimony must be relevant to the issues in the case and based upon a reliable foundation. Tex. R. Evid. 702; Robinson, 923 S.W.2d at 556. Therefore, to be admissible, the specific video cuts at issue needed to contain Dr. Schilling’s qualifications. If a court ruling excludes evidence, a party must preserve error by filing an offer of proof informing the court of the substance of the excluded evidence. Tex. R. Evid. 103. Dr. Gunn and OGA’s offer of proof shows that Dr. Schilling’s deposition provides adequate testimony as to her qualifications, including details about her background in physical medicine and rehabilitation, her experience teaching residents in that field, her experience as a director of rehabilitation at a hospital, her experience preparing life-care plans as part of her daily practice, and her own examination of Shannon. Based on the offer of proof, which references the transcript of the excluded testimony, Dr. Schilling’s qualifications are not dissimilar from those of Dr. Willingham, whose testimony was admitted without objection. Both doctors completed a physical medicine and rehabilitation residency, served as medical directors at rehabilitation centers, are on a faculty teaching physical medicine and rehabilitation residents, and prepare life-care plans as part of their practices. Of course, without the specific video cuts in the record, we cannot determine with absolute certainty that the qualifications provided in the offer of proof (Dr. Schilling’s deposition) were actually contained in the proffered testimony. To be clear, an offer of proof is not a work-around for the foundational requirement that an expert’s qualifications be proven, and it is limited to the substance of the excluded evidence. See Tex. R. Evid. 103. However, based on the record before us, we are satisfied [*38] that the defense offered testimony of an expert witness whose qualifications were established. We have no reason to believe that the defense excluded its own expert witness’s qualifications from the video cuts offered, nor can we conclude from the record before us that the qualifications discussed in the defense’s offer of proof were in fact excluded from the video cuts that it intended to show the jury.” Gunn v. McCoy, No. 16-0125, 2018 Tex. LEXIS 560, at *36-38 (June 15, 2018)

You can raise a complaint about incurable jury argument after the verdict has been returned:


Jury Argument: “ Mendez points to a question asked by appellees’ counsel during cross-examination of Angelo Romagosa, M.D., a physician specializing in physical medicine and rehabilitation. Romagosa testified that he was retained by Mendez’s counsel’s law firm to review medical records, examine Mendez, and give an opinion about her future medical needs or “life care plan.” After asking several questions about whether Mendez had been married, appellees’ counsel asked: “And your opinions assume that Ms. Mendez is going to continue living in the United States, right?” Romagosa replied, “Yes.” . . . .Under the circumstances of this case, we agree with Mendez that appellees’ counsel’s veiled reference to her immigration status was so prejudicial as to be incurable by an instruction to disregard. We reach this conclusion after considering the entire record, including appellees’ counsel’s comments at the bench conference following the challenged question, which strongly indicate that counsel believed, contrary to the trial court’s pre-trial ruling, that evidence of Mendez’s immigration status was relevant and admissible. Because appellees’ counsel’s question was incurably prejudicial, the trial court abused its discretion by denying Mendez’s motion for new trial. We sustain Mendez’s first issue on appeal.” Mendez v. Salinas, No. 13-17-00006-CV, 2018 Tex. App. LEXIS 4319, at *21-22 (App.—Corpus Christi June 14, 2018)

Here is a case where a party sufficiently preserved a complaint about the other side’s attorney testifying:


Oath: “Nor may Deborah rely on her attorney’s statements as evidence. While the requirement may be waived, “an attorney’s statements must be made under oath to be considered evidence.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam). Here, Godswill objected to the attorney “testifying” and did not waive the requirement of an oath. Id.; Casino Magic Corp. v. King, 43 S.W.3d 14, 20 (Tex. App.—Dallas 2001, pet. denied) (attorney’s unsworn statement in garnishment action was not evidence).” Ugwa v. Ugwa, No. 05-17-00633-CV, 2018 Tex. App. LEXIS 4089, at *7 (Tex. App.—Dallas June 6, 2018)

Requesting and “approving” findings and conclusions does not waive one’s right to challenge those findings and conclusions:


Findings and Conclusions: “N.B.J. also argues that DPS is bound by the trial court’s findings of facts and conclusions of law, which “were approved by” DPS in the trial court. The fact that DPS approved and requested entry of the findings of fact and conclusions of law does not demonstrate that DPS consented to the trial court’s judgment or otherwise waived its right to challenge the findings and conclusions on appeal.” Ex parte N.B.J., No. 14-17-00177-CV, 2018 Tex. App. LEXIS 3980, at *6 n.4 (Tex. App.—Houston [14th Dist.] June 5, 2018)

Your complaint must be sufficiently specific:


Sanctions: “In their third issue, the Parents and the Attorneys contend that the trial court failed to adequately specify the basis for sanctions awarded to the Judicial Defendants and Dobbs under Chapter 10 of the Texas Civil Practice and Remedies Code because “[s]imply tracking the language of the statute is insufficient.” The Parents and the Attorneys also contend that the trial court failed to specify the basis for sanctions awarded to the FBISD Defendants under both Chapter 10 and sections 11.161 and 22.055 of the Texas Education Code. . . .As an initial matter, the Judicial Defendants, Dobbs, and the FBISD Defendants argue that the Parents and the Attorneys have waived their specificity complaint because it was not raised in the trial court. See Tex. R. App. P. 33.1; . . . These appellees point out that although the Parents and the Attorneys filed a motion for new trial, or, in the alternative, a motion to modify the judgment, and a request for findings of fact and conclusions of law, they did not object to any lack of specificity in the orders granting sanctions. The Parents and the Attorneys suggest that no objection is required because the requirement for particularity in a sanctions order is mandatory. This court has previously rejected a similar argument based on Rule 13 in Alexander v. Alexander. See 956 S.W.2d 712, 714 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (holding appellant was required to object to a lack of particularity in the trial court even though courts have recognized that Rule 13’s directive that the court specify the basis for sanctions is mandatory). The Parents and the Attorneys also argue that their motion for new trial alerted the court to its failure to adequately describe the offending conduct, because they argued that the amount of the sanctions was excessive and made without reference to any guiding rules and principles, and listed the American Bar Association factors used to evaluate sanctionable conduct. Finally, the Parents and the Attorneys assert that their request for findings of fact and conclusions of law preserved any complaint regarding the trial court’s failure to satisfy section 10.005, because if the trial court had made findings (which it did not), the findings would be sufficient to satisfy the specificity requirements. The thrust of the motion for new trial was that the Parents and the Attorneys’ conduct did not warrant the sanctions imposed under any standard. In the motion, the Parents and the Attorneys demonstrated no difficulty identifying the sanctionable conduct alleged or the applicable legal standards. The request for findings and conclusions was perfunctory and referred only to the final judgment. Nothing in the Parents’ and the Attorneys’ motion for new trial or request for findings and conclusions was sufficiently specific to make the trial court aware that they were complaining that the sanctions orders failed to set out the particulars of the sanctionable conduct. Because the Parents and the Attorneys failed to raise their specificity complaint in the trial court, we conclude that they have failed to preserve this issue for review. See Tex. R. App. P. 33.1(a); . . . .In their fifth issue, the Parents contend that the trial court erred by failing to explain the reasons for sanctioning them. As explained in our discussion of issue three, the Parents failed to make the trial court aware of this complaint; therefore, it is not preserved for appeal. See Tex. R. App. P. 33.1(a). ” Roach v. Ingram, Nos. 14-16-00790-CV, 14-16-01016-CV, 2018 Tex. App. LEXIS 3982, at *45-50, 60-61 (App.—Houston [14th Dist.] June 5, 2018)

You have to comply with the pertinent rules to preserve error:


Continuance: “Here, the court entered an agreed scheduling order on May 18, 2017, which set the discovery deadline as November 4, 2017, thirty days before the December 4, 2017, trial date. Phillip filed his no-evidence motion for summary judgment May 19, 2017, one day after the entry of the agreed scheduling order. Maribeth’s response argued that the motion was premature because an adequate time for discovery had not yet elapsed. However, Maribeth’s objection to the motion was not preserved for our review because she failed to file an affidavit or verified motion for continuance.” Bryant v. May, No. 06-17-00115-CV, 2018 Tex. App. LEXIS 4019, at *10 (Tex. App.—Texarkana June 6, 2018)

Evidence: “Second, appellants’ issue also fails because we do not have a record of the arbitration proceedings, which means we cannot determine if any error is harmful. Appellants argue that they should be excused from producing the arbitration record because the trial judge said at the hearing that he would not take evidence or allow testimony. Having reviewed the reporter’s record, we are not convinced that appellants preserved error by actually offering the arbitration transcript into evidence. But even if appellants adequately offered the arbitration record into evidence and the trial court excluded it, appellants did not make an offer of proof. Accordingly, we cannot tell whether any error was harmful. See Sink v. Sink, 364 S.W.3d 340, 347 (Tex. App.—Dallas 2012, no pet.) (“[W]ithout an offer of proof, we can never determine whether exclusion of the evidence was harmful.”). Without a showing of harm, we cannot reverse. See TEX. R. APP. P. 44.1.” Prell v. Bowman, No. 05-17-00369-CV, 2018 Tex. App. LEXIS 3970, at *11-12 (Tex. App.—Dallas June 4, 2018).

There were the usual collection of cases in which parties failed to raise a complaint in the trial court, but I won’t burden you with those.

I hope this helps.

Take good care.

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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