Error Preservation in Texas Civil Cases, June 26-July 3, 2021

July 30, 2021

Dear Friends:

Caught up-until tomorrow.

Table of Contents

You can first raise some complaints on appeal–lack of standing, for example


For the most part, though, your objection at trial must be timely in order to preserve your complaint


Jury Trial

You have to comply with other pertinent rules


While I won’t profile them here, opinions this week reaffirmed that must make your complaint about the following in the trial court

Attorney’s Fees
Certificate of Conference


You can first raise some complaints on appeal–lack of standing, for example:

Standing: “In order for the trial court to have subject-matter jurisdiction, the landowner must have standing. Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex. 2012) (“In Texas, the standing doctrine requires a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court.”). Though the county officials do [*8] not raise this issue in their plea to the jurisdiction, standing as a prerequisite for jurisdiction cannot be waived and may be raised for the first time on appeal by the parties or the court. Texas Air Control Bd., 852 S.W.2d at 445-46. As described in Meyers v. JDC/Firethorne, Ltd., the test for standing requires three elements: (1) the plaintiff must have suffered an injury; (2) the alleged injury must be “fairly traceable” to the defendant’s conduct; and (3) the plaintiff must show that there is substantial likelihood that the requested relief will remedy the alleged injury.” 548 S.W.3d 477, 485 (Tex. 2018).” Chappell Hill Sausage Co. v. Durrenberger, No. 14-19-00897-CV, 2021 Tex. App. LEXIS 5149, at *7-8 (Tex. App.—Houston [14th Dist.] June 29, 2021)

For the most part, though, your objection at trial must be timely in order to preserve your complaint:

Evidence: “In her first issue, Mother argues the trial court abused its discretion by admitting the report from the DNA testing into evidence. Father argues the trial court did not abuse its discretion because Mother stipulated to paternity, her pleadings judicially admitted paternity, Father’s testimony corroborated his paternity, and other evidence authenticated the report….
Mother indicated Father was A.M.R.’s father in her counter-petition to adjudicate parentage and SAPCR filed after the results of the genetic test. She listed Father as a party “affected by this suit” and “Relationship: Father.” She indicated the purpose of the suit was to “establish a parent-child relationship,” and she sought, among other things, child support from Father.

To the extent Mother relies on her statement in her counter-petition that A.M.R. has a presumed father, we are unpersuaded by her argument. Her pleading did not identify the presumed father, and she provided no indication the “presumed father” qualified as a presumed father as defined by the family code or that she intended the reference in the statutorily-defined sense rather than in some colloquial sense. …

Mother also filed a motion to enforce the temporary orders and though we acknowledge she never referred to Father as “father” but instead as “respondent,” she sought back child support, indicating she believed he was the man responsible for supporting A.M.R. Mother further indicated her belief he was the father when she filed a motion to terminate his parental rights.

Because Mother filed numerous documents reciting Father is A.M.R.’s father, these assertions of fact in her live pleadings are judicial admissions….Mother continued to rely on the adjudication of Father’s paternity, which was based on the genetic testing, for over two years before she objected to the genetic testing based on family code section 160.504(b). In fact, she waited until the jury was impaneled for the SAPCR trial to raise the issue. Based on the judicial admissions in this case and the delay in raising her complaint, we conclude Mother’s objection was untimely. As such, Mother has waived her first issue on appeal. See Tex. R. App. P. 33.1. Having reached this conclusion, we need not address whether the trial court abused its discretion by admitting the report from the DNA testing into evidence. See Tex. R. App. P. 47.1.” In the Interest of A.M.R., No. 05-21-00235-CV, 2021 Tex. App. LEXIS 5186, at *5 (Tex. App.—Dallas June 29, 2021)

Jury Trial: “In his second issue, Father complains that the trial court erred by proceeding to trial without a jury. Father filed a jury demand on September 14, 2020. See Tex. Fam. Code § 105.002(a) (party to suit under family code may demand jury trial in proceedings that do not include adoption or the adjudication of parentage); Tex. R. Civ. P. 216 (requirements for jury trial request). He did not, however, object when the case proceeded to trial without a jury or otherwise bring the matter to the trial court’s attention….the record does not show that Father either objected to the case going forward without a jury or indicated in any way to the trial court that he intended to stand on his perfected right to a jury trial. See Vardilos, 219 S.W.3d at 923. We conclude Father waived any right to complain on appeal of the trial court’s alleged error. See id. We decide Father’s second issue against him.” In the Interest of B.C.C., No. 05-21-00091-CV, 2021 Tex. App. LEXIS 5315, at *12-13 (Tex. App.—Dallas June 30, 2021)

You have to comply with other pertinent rules:

Capacity: “But a “plaintiff’s lack of capacity to bring suit on another’s behalf does not deprive the trial court of subject matter jurisdiction over the suit, and a challenge to the plaintiff’s capacity may thus be waived.” Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 795 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Because Baybrook Appellants did not file a verified denial challenging Tenant Appellees’ capacity or raise this issue in the trial court, this issue has been waived. See id.; Tex. R. Civ. P. 93(1), (2).” Mosaic Baybrook One LP v. Cessor, Nos. 14-19-00514-CV, 14-19-00695-CV, 2021 Tex. App. LEXIS 5164, at *24 (Tex. App.—Houston [14th Dist.] June 29, 2021)

All for now.  At least until tomorrow.  Y’all take good care.

Yours, Steve Hayes; 817/371-8759;


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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