Error Preservation in Texas Civil Cases, June 30, 2019

Dear All:

Interestingly enough, there were not a lot of error preservation decisions this last week, or at least not a lot that I caught. One relatively important one that I had not seen in the last six years or so–that the failure of the trial court to join an indispensable party is a jurisdictional issue, which might mean that said failure is a complaint which can first be raised on appeal. Maybe. Though I think you have to ask the trial court to join the indispensable party.

Table of Contents

Some complaint may first be raised on appeal–such as the failure of the trial court to join an indispensable party:


Indispensable Party: “In this case, however, the trial court declined to enter judgment on the jury verdict. Although Key had died, that fact did not deprive the trial court of subject-matter jurisdiction, which “deals with the power of a court to determine an action involving a particular subject matter as between the parties and render a certain judgment.” Kshatrya v. Tex. Workforce Comm’n, 97 S.W.3d 825, 829 (Tex. App.—Dallas 2003, no pet.) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)). If the defendant’s death was enough to [*6] deprive the trial court of subject-matter jurisdiction, a case would end before a trial court could allow substitution under Rule 152. … the question naturally arises how can a trial court grant a motion filed when there was no one with standing to file the motion in the first place? The answer to this question is that “[t]he failure to join a jurisdictionally indispensable party constitutes fundamental error, which an appellate court is bound to notice if the error is apparent from the face of the record.” Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex. App.—Houston [1st Dist.] 1991, no writ)).” In re Coats, No. 06-19-00040-CV, 2019 Tex. App. LEXIS 5347, at *5-8 (Tex. App.—Texarkana June 27, 2019)

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


Evidence (Running Objection): “The Department contends that Father failed to preserve this issue. In order to preserve a complaint for our review, the action or omission which is alleged as error or abuse of discretion on behalf of the trial court must have been the basis of a timely request, objection, or motion that specified the action that the trial court was requested to take, or to forbear from taking, and an adverse ruling must have been obtained. Tex. R. App. P. 33.1(a); Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). Father did not raise an objection at the time Meredith or Wymore testified to the children’s statements regarding where they desired to live. However, Father argues that the trial court granted him a running objection that preserved this error for appeal. Running objections are an exception to the general rule that a party must continue to object and get [*20] a ruling for each individual instance of inadmissible testimony. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (citing Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991); In re A.P., 42 S.W.3d 248, 261 (Tex. App.—Waco 2001, pet. denied), overruled on other grounds by In re A.M., 385 S.W.3d 74 (Tex. App.—Waco 2012, pet. denied). “A running objection is required to be specific and unambiguous.” Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App.—Texarkana 2000, pet. denied). Such an objection should “not encompass too broad a reach of subject matter over too broad a time.” Ethington, 819 S.W.2d at 859. Even though the trial court sua sponte granted Father a running objection, the record is unclear regarding the scope of the objection granted. See Huckaby, 20 S.W.3d at 203. We conclude that, due to the objection’s context and the timing of the court’s ruling, the running objection was, at best, restricted to the children’s out-of-ourt statements regarding what they told Meredith about their father directing them to fight and about seeing and experiencing domestic violence. We are not free to assume that the court granted Father a running objection to any witness testifying to any of the children’s out-of-court statements regarding any subject, because not all such statements are necessarily hearsay, and it is the parties’ responsibility to make specific objections and ensure that the record reflects the scope and subject matter of the court’s ruling on those objections. See id. Therefore, Father failed to object to Meredith or [*21] Wymore testifying to the children’s statements regarding where they wanted to live. Accordingly, this issue was not preserved for our review. See Tex. R. App. P. 33.1(a).” In the Interest of A.D.K., No. 06-19-00019-CV, 2019 Tex. App. LEXIS 5295, at *19-21 (Tex. App.—Texarkana June 26, 2019)

Evidence: “In its second issue, Stephens & Myers claims that the trial court erred when it allowed Johnston to testify as to matters that “included pure questions of law and was unreliable.” Johnston testified about the duties of agents and lawyers and about the rules that govern lawyers. Stephens & Myers objected to the testimony but did [*91] not object on the grounds that the testimony “included pure questions of law and was unreliable”; the only objection went to a failure to disclose. To preserve error for appeal, the argument made in the trial court must comport with the argument made on appeal. See Tex. R. App. P. 33.1(a); Santander Consumer USA, Inc. v. Mata, No. 03-14-00782-CV, 2017 WL 1208767, at *3 (Tex. App.—Austin Mar. 29, 2017, no pet.). Stephens & Myers has waived its complaint that Johnston’s testimony “included pure questions of law and was unreliable.”” Stephens v. Three Finger Black Shale P’ship, No. 11-16-00177-CV, 2019 Tex. App. LEXIS 5459, at *90-91 (Tex. App.—Eastland June 28, 2019)

Summary Judgment: “Roughly two weeks after the trial court entered summary judgment against him and sustained the Francises’ general objections, Hobson filed a motion for reconsideration of both the summary judgment itself and of the order on the Francises’ objections, combined with a motion for leave to file an amended affidavit and to set aside the summary-judgment order. We will consider that motion for reconsideration to have been the functional equivalent of a motion for new trial. [*18] Hobson’s motion—which the trial court never expressly ruled on—did not call to the trial court’s attention his appellate complaint that it was error to sustain the general objections because they were not specific enough. The rules of error preservation apply to summary-judgment proceedings as well as to trials. Tex. R. App. P. 33.1(a); Seim, 551 S.W.3d at 163-64 (“The same evidentiary standards that apply in trials also control the admissibility of evidence in summary-judgment proceedings. But the rules of error preservation also apply.” (citation omitted)); cf. Cunningham v. Anglin, No. 05-12-00039-CV, 2014 WL 3778907, at *3 (Tex. App.—Dallas July 31, 2014, pet. denied) (mem. op.) (noting rule 33.1(a)’s requirements and stating that party whose summary-judgment evidence was excluded “may not argue on appeal any and every new issue he can think of nor may he resurrect issues he abandoned at the hearing”; if a party “fails to object to the trial court’s ruling that sustains an objection to his summary judgment evidence, he has not preserved the right to complain on appeal about the trial court’s ruling,” and “[e]ven if the objections appear meritorious on appeal, they are not preserved for appellate review if the record does not show the complaint was made to the trial court” (citing Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.)). This principle applies [*19] equally to motions for new trial: the trial court must know what is being complained about. See Tex. R. App. P. 33.1(b) (“In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.”); cf. Cooper v. Tex. Dept. of Criminal Justice Corr. Insts. Div., No. 12-17-00182-CV, 2018 WL 1940395, at *2 (Tex. App.—Tyler Apr. 25, 2018, no pet.) (mem. op.) (holding that by reasserting sham-affidavit argument in motion to reconsider that was overruled by operation of law, appellant preserved argument for appellate review). By not apprising the trial court of this particular complaint, Hobson has waived the argument that the trial court erred in sustaining the Francises’ general objections to his affidavit and supplemental affidavit because, in Hobson’s view, those objections were insufficiently specific to constitute valid objections. Rather, Hobson’s motion for 20 reconsideration sought only to persuade the trial court that his original affidavit “recited sufficient facts to show how he obtained personal knowledge of the facts set forth in the affidavit,” and that the Francises were wrong to lodge a hearsay [*20] objection to Hobson’s recounting out-of-court statements that he made to them asking for an easement. Moreover, Hobson’s motion for reconsideration did not even mention or analyze a third category of the Francises’ general objections: that both affidavits were “replete with conclusory statements, legal opinion and legal conclusion.” As a subpart of his fourth Issue Presented, Hobson contends that the Francises’ general objections should not have been sustained because they did not “otherwise have merit.” n. 11 n. 11 Again, Hobson did not argue to the trial court that the Francises’ general objections did not “otherwise have merit,” and thus waiver seemingly applies to this subissue as well. See Tex. R. App. P. 33.1(a). Despite the wording of Hobson’s issue, which is not on its face entirely clear, his brief analyzes the Francises’ specific objections.” Hobson v. Francis, No. 02-18-00180-CV, 2019 Tex. App. LEXIS 5412, at *17-20 (Tex. App.—Fort Worth June 27, 2019)

Summary Judgment: “Hobson’s motion for the trial court to reconsider and set aside it’s ruling on the Francises’ objections discussed only the no-personal-knowledge and hearsay aspects, which are formal defects. He did not argue to the trial court that his affidavit contained no substantive defects despite the Francises’ contention, and thus did not give the trial court a chance to reconsider that aspect of the Francises’ general objections, as he must have under rules 33.1(a) and (b). n. 13 n. 13 While it is true that substantive defects in summary-judgment affidavits may be complained about for the first time on appeal, that principle does not logically apply when it is the losing nonmovant complaining that the movant succeeded in challenging the nonmovant’s affidavit on substantive-defect grounds. In this situation, to preserve error Hobson must have first complained to the trial court. See Tex. R. App. P. 33.1(a), (b). Despite apparent waiver of claimed error on this point, we will consider the affidavit statements that Hobson’s brief addresses.” Hobson v. Francis, No. 02-18-00180-CV, 2019 Tex. App. LEXIS 5412, at *26 (Tex. App.—Fort Worth June 27, 2019).

The courts also dealt with a number of issues which the parties had failed to raise in the trial court.

All for now. Hope this helps. Y’all have a good 4th.

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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