Error Preservation in Texas Civil Cases June 23, 2019

Dear All:

Table of Contents

The Blurbs

One court of appeals held that to preserve a complaint about irreconcilably conflicting jury answers, you have to raise the complaint before the trial court discharges the jury–which is what I would always tell you to do. But I got a different head count than did the court of appeals on the Supreme Court’s decision in Menchaca, as it looked like to me (in trying to track the admittedly hard-to-follow several opinions in Menchaca) that four justices said appellate courts can disregard irreconcilably conflicting jury answers in the absence of an objection, and a fifth justice said he agreed “in this situation.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 522 (Tex. 2018) (Hecht, CJ, concurring). What a mess:

Irreconcilably Conflicting Jury Answers:

“By its fourth issue, Los Compadres contends that the jury issued conflicting findings. Appellees claim that Los Compadres waived its complaint because it failed to object before the jury was discharged. “When an irreconcilable conflict involves one jury answer that would require a judgment in favor of the plaintiff and another that would require a judgment in favor of the defendant, the conflict is fatal.” USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 509 (Tex. 2018). To properly preserve a complaint that there is a fatal irreconcilable conflict in the jury’s verdict, the party “must raise that objection before the trial court discharges the jury.” Id. at 518.

Los Compadres concedes that it did not object to the jury’s alleged fatal conflicts prior to its discharge. See id. Therefore, error, if any, is not preserved for appeal. See id.; see also Davis v. Vaughters, No. 01-17-00612-CV, 2018 Tex. App. LEXIS 8951, 2018 WL 5661317, at *5 (Tex. App.—Houston [1st Dist.] Nov. 1, 2018, no pet.) (mem. op.) (“Even were we to conclude [*19] that Davis has identified a conflict in the jury’s answers, which we do not, it is well-established that ‘to preserve error based on fatally conflicting jury answers, parties must raise that objection before the trial court discharges the jury.’”).

In light of its failure to preserve this issue, Los Compadres requests that we remand the cause for a new trial in the interest of justice. It states in its reply brief that in Menchaca, a plurality opinion, three justices opined that irreconcilable jury responses did not constitute fundamental error, and concluded that an objection was required prior to the jury’s discharge. Nonetheless, these justices voted with the majority to remand the case for a new trial in the interest of justice, because the Court’s decision addressed confusion in the error preservation requirements for irreconcilable jury responses.

See Menchaca, 545 S.W.3d at 505. However, Los Compadres does not explain with legal argument and citation to applicable authority why it is entitled to a new trial in the interest of justice in this Court and how this Court has authority to do so when we do not have the same authority to remand in the interest of justice as the Texas Supreme Court. See Tex. R. App. P. 38.1(i); Wall v. State Farm Lloyds, ___ S.W.3d ___, ___ No. 01-17-00681-CV, 2018 Tex. App. LEXIS 10899, *14, 2018 WL 6843781, at *5 (Tex. App.—Houston [1st Dist.] Dec. 31, 2018, no pet.) (refusing [*20] to remand in the interest of justice because it had not found error warranting reversal in the trial court’s judgment and explaining that the rules for remand in the interest of justice are not the same in the Texas Supreme Court and the intermediate courts).” Los Compadres Pescadores, L.L.C. v. Valdez, No. 13-17-00344-CV, 2019 Tex. App. LEXIS 5086, at *18-20 (Tex. App.—Corpus Christi June 20, 2019)

One court of appeals held that a delay in seeking a hearing on a motion to transfer venue did not waive the motion:


Venue: “We disagree that waiver could have justified the trial court’s ruling in this case.  Rule 87(1) provides that a movant for transfer has a [*12] duty to request a setting on the motion, but it does not state that the request must be made within any particular time, except to say that the court must rule on the motion within “a reasonable time” prior to trial. Tex. R. Civ. P. 87(1). Further, the cases cited by Gulf are not persuasive on this point. In Ledbetter, the defendant waived its transfer motion because it did not seek a ruling on it until seven months after the trial was completed; here, the case has not even been set for trial. See 896 S.W.2d at 419. The Whitworth court remarked that waiver would have justified the trial court’s denial of the transfer motion, but that was dicta because its ruling affirming the denial was based on the merits of the transfer motion. See 734 S.W.2d at 111. The court in Carlile affirmed the trial court’s denial of a transfer motion where the defendant waited “approximately fourteen months” to request a hearing and “was perhaps less than diligent” in pursuing a ruling on the transfer motion. 138 S.W.3d at 408-09. But the court’s ruling was also based on the fact that the defendant filed summary judgment pleadings and a motion for continuance which were not conditioned upon his venue motion. Id. Here, unlike in Carlile, Eastman did not file any pleadings seeking [*13] to “invoke[] the general jurisdiction of the court to rule on the merits” of the Gulf’s claims. Instead, to the extent Eastman sought affirmative relief from the trial court, that relief related exclusively to discovery matters which, by their very nature, are preliminary to consideration of the claims on their merits. Further, even though Eastman’s original transfer motion was filed in 2013, its amended motion was filed in 2017, and it requested a hearing on the amended motion shortly after it was filed. Under these circumstances, we conclude that Eastman did not waive its venue complaint.” In re Eastman Chem. Co., No. 13-18-00268-CV, 2019 Tex. App. LEXIS 5089, at *11-13 (Tex. App.—Corpus Christi June 20, 2019)

You have to bring your complaint to the trial court’s attention–and merely filing your motion with the clerk does not do that:


Arbitration: “See Murphree v. Cooper, No. 14-11-00416-CV, 2012 WL 2312706, at *1 (Tex. App.—Houston [14th Dist.] June 19, 2012, no pet.) (mem. op.) (“Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling.”). While Read previously had filed a motion to compel arbitration, about ten months after Sibo filed his lawsuit against her and six months after she had filed her answer, she never presented the motion to the trial court for a ruling.” Read v. Sibo, No. 14-18-00106-CV, 2019 Tex. App. LEXIS 5160, at *11 (Tex. App.—Houston [14th Dist.] June 20, 2019)

You have to comply with the pertinent rules–and if your particular motion for new trial requires the taking of evidence, and you do not have such a hearing on your motion, merely allowing the passage of time to overrule your motion for new trial will not preserve the complaint made in it:


Continuance: “Texas Rule of Civil Procedure 251 governs motions for continuance. A motion for continuance shall not be granted without “sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251. Accordingly, motions for continuance generally must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. C.F., 565 S.W.3d at 844. When a motion for continuance does not comply with the rules—for example, when the motion is unwritten or unsupported by verified facts—appellate courts generally presume the trial judge did not abuse its discretion in denying the motion. Id. Oral requests for a continuance do not preserve error. Id. Mother did not file a written motion for continuance. Her oral request on the day of trial is insufficient to preserve error for our review. See id. Unlike the appellant in our recent decision in In re L.N.C., Mother does not suggest the denial of her motion for continuance violated her right to due process. No. 14-18-00691-CV, ___ S.W.3d ___, 1900, *5, 2019 Tex. App. LEXIS 645 (Tex. App.—Houston [14th Dist.] Jan. 31, 2019, pet. filed). Accordingly, L.N.C. does not govern this case. Mother’s failure to preserve error precludes appellate review. C.F., 565 S.W.3d at 844. We overrule Mother’s first issue.” In the Interest of B.G.G., No. 14-19-00278-CV, 2019 Tex. App. LEXIS 5168, at *29 (Tex. App.—Houston [14th Dist.] June 20, 2019)

Motion for New Trial: “Regarding JD Enterprises’s motion for new trial, there was no hearing on the motion and it was overruled by operation of law. Tex. R. Civ. P. 329b(c). The overruling of a motion for trial by operation of law preserves error for appeal “unless taking evidence was necessary to properly present the complaint in the trial court.” Tex. R. App. P. 33.1(b) (emphasis added). JD Enterprises’s claim that it did not timely receive notice of the summary judgment motion and hearing required evidence, but no evidence was taken in this case. Under Rule 33.1(b), “if a movant seeks a new trial on a ground on which evidence must be heard by the trial court, the movant must obtain a hearing on its new-trial motion to preserve error.” Tyhan, Inc. v. Cintas Corp. No. 2, No. 01-18-00027-CV, 2018 Tex. App. LEXIS 8847, 2018 WL 5539419, at *1-2 (Tex. App.—Houston [1st Dist.] Oct. 30, 2018, no pet.) (mem. op.); . . . .Because the motion for new trial required the taking of evidence and was overruled by operation of law, we conclude JD Enterprises failed to preserve error, if any, regarding the overruling of its motion for new trial. Tex. R. App. P. 33.1(b).” JD Shelton Enters. LLC v. AGL Constructors, No. 05-18-00765-CV, 2019 Tex. App. LEXIS 4986, at *5-6 (Tex. App.—Dallas June 17, 2019)

You have to get a ruling on your objections:


Affidavit: “Falvey objected to Maloy’s affidavit on the grounds that she was not established to be an expert and that the affidavit was conclusory. Again, the record contains no ruling on the objections. See Tex.R.App.P. 33.1.” Acosta v. Falvey, No. 08-16-00295-CV, 2019 Tex. App. LEXIS 5188, at *6 n.2 (Tex. App.—El Paso June 21, 2019)

Continuance: “JD Enterprises complains about the denial of the motion to extend time filed before the hearing and the denial of its motion for new trial. However, the record does not show that either of these complaints were preserved for review. See Tex. R. App. P. 33.1(a), (b). As a prerequisite to complaining on appeal about the denial of a motion for continuance, the record must show that the motion was brought to the trial court’s attention and the trial court denied the motion or the trial court refused to rule and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a);. . . . Although JD [*5] Enterprises filed the motion to extend time before the trial court heard the motion for summary judgment, there is no indication in the record that JD Enterprises set the motion for hearing or otherwise brought it to the trial court’s attention. Nor does the record show the trial court ruled on the motion to extend time. Thus, JD Enterprises’s complaint regarding the motion to extend time is not preserved for review.” JD Shelton Enters. LLC v. AGL Constructors, No. 05-18-00765-CV, 2019 Tex. App. LEXIS 4986, at *4-5 (Tex. App.—Dallas June 17, 2019)

Evidence: “Documents, including Acosta’s affidavit, appear in the clerk’s record before, and apparently separately from, the summary judgment response. Falvey objected to the trial court considering those documents because they were not submitted as summary judgment evidence and did not comply with Rule 166a(d) of the Texas Rules of Civil Procedure. The record does not, however, contain any ruling on those objections and it appears that the trial court considered Acosta’s documents as summary judgment evidence. We will do the same. See Tex.R.App.P. 33.1 (requiring a ruling on objection to preserve error).” Acosta v. Falvey, No. 08-16-00295-CV, 2019 Tex. App. LEXIS 5188, at *6 n.2 (Tex. App.—El Paso June 21, 2019)

Summary Judgment: “Hagan did nothing to insure that the trial court “affirmatively indicated on the record” it considered the new evidence. It was his burden to obtain a ruling on his motion for leave to designate Clark [an expert] and ensure the record reflects either the trial court’s ruling or refusal to rule on his motion. Tex. R. App. P. 33.1;” Hagan v. Pennington, No. 05-18-00010-CV, 2019 Tex. App. LEXIS 5101, at *12 (Tex. App.—Dallas June 19, 2019)

Y’all have a good week.

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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