Error Preservation in Texas Civil Cases, June 2, 2018

Dear All:

My search engine hit a glitch this week, so I used FastCase (available through the State Bar) to find the cases here. You will have the case number from the court, but not a Lexis or Westlaw cite.  FastCase has some neat features–it’s public link, for instance, which allows you to provide any reader a link to the opinion, whether you subscribe or not.  I should have provide those links for the following cases, but did not think about doing so until too later.  However, here is an example.  You ought to check it out.

Table of Contents


On to the cases.  Here is a case which, while not mentioning the words, held that the complaint at trial was sufficiently specific:


Legal Sufficiency: “OCTG asserts the trial evidence is legally and factually insufficient to support the jury’s findings in response to the damages question for OCTG’s breach of the Finishing Agreement and breach of express warranty. The jury found $1,562,127 in damages for OCTG’s breach of contract and $1,562,127 in damages for OCTG’s breach of warranty. OCTG and Sojourn argue that the evidence is legally and factually insufficient to support the jury’s findings as to reasonable and necessary expenses under the legal standard set forth in Dallas Railway and Terminal Co. v. Gossett and its progeny. 294 S.W.2d 377, 382-83 (Tex. 1956); see also McGinty v. Hennen, 372 S.W.3d 625, 627-28 (Tex. 2012). 1. Preservation Before discussing this legal standard, we first consider whether OCTG preserved these appellate complaints in the trial court. Laguna and LTP assert that OCTG did not preserve error. In their motion for judgment notwithstanding the verdict, OCTG and Sojourn asserted that the record contained no evidence to support the jury’s finding of $1,562,127 in damages resulting from the breach of the Finishing Agreement. OCTG and Sojourn did not assert a lack of evidence to support the jury’s finding of $1,562,127 in damages resulting from OCTG’s breach of warranty. But, in their motion for new trial, OCTG and Sojourn asserted legal insufficiency of the evidence to support the jury’s damages findings in response to both questions. The trial court denied the motion for new trial. Laguna and LTP appear to argue that OCTG was required to assert specifically that the evidence is legally insufficient as to the “reasonable and necessary” element of each question. We conclude that the complaints in the motion for new trial preserved error as to the legal-insufficiency arguments under OCTG’s sub-issue. See Arkoma Basin Expl. Co. v. FMF Assocs., 249 S.W.3d 380, 387-88 (Tex. 2008).” O.C.T.G. v. Laguna Tubular Prods. Corp., No. 14-16-00210-CV, (Tex. App., May 31, 2018)

But here is one where the complaint was not sufficiently specific :


Evidence: “At trial, Niranjan offered Exhibit 12 for admission into evidence, and identified the exhibit as consisting of emails between him and Smita. However, he admitted, only “part[s]” of the exhibit included emails between him and Smita, and requested that the trial court review the portion of the exhibit involving emails between the parties. Smita’s attorney objected as to hearsay, and the trial court sustained Smita’s objection. In his brief, Niranjan again states that the emails were “largely between the parties although there were sections wherein information was passed along to third parties.” We note that the majority of the 231 page exhibit appears to be emails between the parties. However, portions of the exhibit contain emails between Niranjan and the unidentified email addresses of at least seven other persons, some of whom appear to be former legal counsel. The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable. In re S.M., 207 S.W.3d 421, 424 (Tex. App.-Fort Worth 2006, pet. denied) (citing Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1035, 113 S. Ct. 1858, 123 L. Ed. 2d 479 (1993)). If evidence is offered and challenged, which contains some of each [admissible and inadmissible], the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection. Id. When evidence is both admissible and inadmissible, a party may not complain on appeal unless the admissible evidence was specifically offered. See Speier v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981). Here, it was not the trial court’s responsibility to sort through this voluminous record to determine which emails were admissible and which were inadmissible. See In re S.M., 207 S.W.3d at 424. Thus, Niranjan failed to preserve his complaint regarding the trial court’s exclusion of Exhibit 12. See Speier, 616 S.W.2d at 619.” Gadekar v. Zankar, No. 12-16-00209-CV (Tex. App.–Tyler, May 31, 2018)

Sometimes, issues can be tried by consent:


Substantial Performance: “Here, the Dieringers contend the theory of substantial performance was neither supported by Griffin’s pleadings nor tried by consent. We disagree. As previously stated, substantial performance is considered to be a condition precedent to the right to bring suit on a construction contract. Therefore, Griffin’s breach of contract pleadings supports its claim whether based upon substantial compliance or complete performance. Furthermore, when issues not raised by the pleadings are tried by consent (either express or implied) they are to be treated in all respects as if they had been raised in the pleadings. See TEX. R. CIV. P. 67. An issue is tried by consent if the presentation of evidence puts the parties on notice that recovery under the unpled theory is conceivable, and the other party fails to make an appropriate complaint. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). Here, a significant portion of the evidence presented centered around the nature and degree of Griffin’s alleged non-performance and the reasonable cost of remediating those deficiencies. Lyndall Hurst, Griffin’s President, testified in detail concerning the initial construction, approval, transportation, installation, repair, and final approval of the residence. In addition, both Brandon and Laura Dieringer testified to the long list of deficiencies identified and, with the assistance of their expert witnesses, to the reasonable cost of their remediation. Based on the amount of time spent and testimony received on those questions, we cannot say the trial court abused its discretion in finding that the theory of substantial performance was tried by consent.” Charles Griffin Custom Ready-Built Homes, Inc. v. Dieringer (Tex. App.–Amarillo, May 29, 2018)

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


Evidence: “We turn next to Leonard’s complaint that Knight’s alleged failure to supplement his discovery responses with Junell’s billing records (among other things) rendered Junell’s fee affidavit inadmissible. Leonard included an objection to the admissibility of Junell’s affidavit in his summary judgment response, but he did not obtain an express ruling on that objection. On appeal, Leonard argues that he preserved this complaint because the trial court’s action in granting Knight’s motion for summary judgment implicitly overruled his objection to Junell’s affidavit. We disagree. See Parkway Dental Assocs., P.A. v. Ho & Huang Props., L.P., 391 S.W.3d 596, 603-04 (Tex.App.—Houston [14th Dist.] 2012, no pet.) (stating that this Court has refused to recognize the granting of a summary judgment motion as an implied overruling of the nonmovant’s evidentiary objections). Obtaining an express ruling on an objection to summary judgment evidence is necessary to preserve error for appellate review. Id. Because Leonard did not obtain a ruling on his objection to Junell’s affidavit, he has not preserved any complaint he may have had for appellate review. We overrule Leonard’s second issue.” Leonard v. Knight, 4-16-00932-CV (Tex. App.–Houston [14th Dist.], May 31, 2018)

Sanctions: “By their seventh issue, the Eubanks contend that the trial court abused its discretion by not sanctioning the Bank for discovery abuse. The Eubanks moved for monetary sanctions, but never obtained a ruling or objected to the trial court’s failure to rule. The question of monetary sanctions is therefore not preserved for our review. See TEX. R. APP. P. 33.1(a)(2).” Mattar v. Bbva Compass Bank, No.13-16-00496-CV (Tex. App.–Corpus Christi-Edinburg, May 31, 2018)

You have to comply with other pertinent rules in asserting your complaint in the trial court:


Jury Charge: “In Nelson’s Issue Three, he asserts that Vernco should not be allowed to collect the $350,000 in damages attributable to his failure to file inefficiency claims because those were special/consequential damages27 that should have been, but were not, pleaded in Vernco’s live petition; Vernco only explicitly sought to recover “lost profits” resulting from Nelson’s breach. See TEX.R.CIV.P. 56 (“When items of special damage are claimed, they shall be specifically stated.”). Vernco counters that Nelson waived any challenges to pleading defects by failing to file special exceptions, and the issue of damages related to inefficiency claims was tried by consent. We agree with Vernco. “Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury . . . shall be deemed to have been waived by the party seeking reversal on such account[.]” [Emphasis added]. TEX.R.CIV.P. 90. While Nelson verbally objected to the inclusion of the instruction at the jury charge conference, Nelson directs us to nothing in the record that would show he ever filed an objection in writing as required by Rule 90. Thus, any objection to Vernco’s failure to bring up the specific issue in a pleading has been waived.” Nelson v. Vernco Constr., Inc., No. 08-10-00222-CV (Tex. App.–El Paso, 2018)

Pleading: “To the extent that Gabriel’s cross-appeal issue is intended as a challenge to Blaauw’s capacity, it fails for lack of a verified pleading. Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 93(1); Nootsie, Ltd., 925 S.W.2d at 662 (holding Nootsie waived any complaint about appraisal district’s legal capacity because it failed to raise the issue through a verified pleading in the trial court).” Alarcon v. Velazquez, No. 14-16-00481-CV (Tex. App.–Houston [14th], May 31, 2018)

Pleading: “ OCTG and Sojourn assert this court must set aside the damages found by the jury in response to damage questions for Laguna’s breach-of-contract and breach-of-warranty claims because, in the Finishing Agreement, the parties agreed that OCTG would not be liable for damages resulting from its breach of the Finishing Agreement. Instead, OCTG’s sole obligation would “be to furnish substitute equivalent Services on substitute goods or, at [OCTG’s] election, to repay or credit [Laguna] an amount equal to the price of the Services.” Texas Rule of Civil Procedure 94 requires an affirmative pleading of certain specified defenses and of “any other matter constituting avoidance or affirmative defense.” Tex. R. Civ. P. 94. A contractual limitation-of-liability provision constitutes an avoidance or affirmative defense that a party must plead affirmativelySee id.; see also Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 671 (Tex. App.–Houston [14th Dist.] 1994, writ denied). A party waives an avoidance or affirmative defense if the party fails to plead it and the issue is not tried by consent. See Tacon Mech. Contractors, 889 S.W.2d at 671. OCTG neither pleaded that its liability was limited under the Finishing Agreement, nor was the limitation-of-liability issue tried by consent. Thus, OCTG has waived this issue. See id.” O.C.T.G. v. Laguna Tubular Prods. Corp., No. 14-16-00210-CV, (Tex. App., May 31, 2018)

The complaint you raise on appeal must comport with the complaint you made at trial:


Jury Charge: “On appeal, the Eubanks also complain of the trial court’s refusal to submit a spoliation instruction concerning the Bank’s purported failure to produce other documents. However, this complaint does not conform with the Eubanks’ argument at the charge conference, and it is therefore not preserved for our review. See TEX. R. APP. P. 33.1(a); see, e.g., Lowry v. Tarbox, 537 S.W.3d 599, 617 (Tex. App.—San Antonio 2017, pet. denied) (“On appeal, appellants present an entirely different argument [concerning the proposed jury] question . . . .”).” Mattar v. Bbva Compass Bank, No.13-16-00496-CV (Tex. App.–Corpus Christi-Edinburg, May 31, 2018)

There were a raft of decisions which held that a complaint was not preserved because it was not raised in the trial court, but I won’t set those out here.

I hope this helps. Y’all take care.


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