Error Preservation in Texas Civil Cases, June 5, 2021

June 5, 2021

Dear Folks:

We have gotten to that time of the fiscal year (which ends August 31) when the courts of appeals become really intent on issuing opinions.  That usually coincides with a significant increase in error preservation decisions, and this year shows no signs of breaking from that rhythm.

Sometimes, a court of appeals will find an implicit ruling on an objection to summary judgment evidence–but I would not count on that happening

Summary Judgment

These parties preserved their complaint by raising it at trial

Jury Charge

Though courts still have not devised a consistent test (in my opinion) to say this, the complaint you raise on appeal must be the complaint you raise at trial

Jury Charge

Your complaint must be timely


You must comply with other pertinent rules

Jury Charge

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

Attorney’s Fees
Jury Charge
Jury Charge
Res Judicata


Sometimes, a court of appeals will find an implicit ruling on an objection to summary judgment evidence–but I would not count on that happening:

Summary Judgment:  “The record does not show that the trial court explicitly ruled on either TSWC’s objections to the evidence Appellants offered in support of their first amended traditional motion for summary judgment or on Appellants’ objections to TSWC’s evidence responding to that motion. For these objections to be preserved for our review, something in the record—other than the granting of TSWC’s motion for summary judgment—must reflect that the trial court ruled on them. TEX. R. APP. P. 33.1(a)(2)(A); Ordonez v. Solorio, 480 S.W.3d 56, 63 (Tex. App.—El Paso 2015, no pet.). Here, the objections and evidence the trial court did not explicitly rule on are essentially identical to the objections and evidence it disposed of in its written orders. Under these unique circumstances, we conclude the trial court implicitly ruled on all of the parties’ objections. See Guerra v. Alexander, No. 04-09-00004-CV, 2010 Tex. App. LEXIS 4115, 2010 WL 2103203, at *3 (Tex. App.—San Antonio May 26, 2010, pet. denied) (mem. op.) (“[A] trial court can implicitly rule on a motion so long as the ruling is capable of being understood from the record.”).” Hilderbran v. Tex. Sw. Council, Inc., No. 04-20-00112-CV, 2021 Tex. App. LEXIS 4304, at *11 n.1 (Tex. App.—San Antonio June 2, 2021)

These parties preserved their complaint by raising it at trial:

Jury Charge: “In its first issue on appeal, Mortenson contends that the trial court erred by submitting Shelton’s negligent undertaking claim to the jury. Mortenson objected at trial to submitting that theory of liability on the ground that it was not a legally cognizable claim under the circumstances of the case. The error is thus preserved for our review. See Tex. R. App. P. 33.1.” M.A. Mortenson Co. v. Shelton, No. 02-19-00435-CV, 2021 Tex. App. LEXIS 4355, at *7 (Tex. App.—Fort Worth June 3, 2021)

Though courts still have not devised a consistent test (in my opinion) to say this, the complaint you raise on appeal must be the complaint you raise at trial:

Jury Charge: “Toyota Motor objected to question ten on the ground that it did not include an instruction that a vice principal finding was required to impose liability on a corporation for gross negligence of its agents. It objected to questions ten and eleven for insufficient evidence. Nowhere did Toyota Motor’s objections or requested instructions inform the trial court of its complaint regarding Casteel error in these questions. Accordingly, we conclude Toyota Motor has not preserved its complaint for appeal as to these questions. See Tex. R. App. P. 33.1(a); Burbage, 447 S.W.3d at 256.” Toyota Motor Sales, U.S.A., Inc. v. Reavis, No. 05-19-00075-CV, 2021 Tex. App. LEXIS 4378, at *47 (Tex. App.—Dallas June 3, 2021)

Your complaint must be timely:

Evidence: “In subpart (d) of its fifth issue, Toyota Motor argues the trial court erred by permitting the jury to hear about its destruction of crash-test footage pursuant to its document retention policy and compounded the error by refusing Toyota Motor’s requested jury instruction on spoliation.

Shibata testified in his deposition that during testing of the model ES300, Toyota Motor determined that the front seat did not deform more than 25 degrees, which was their target, in sled testing equivalent to a 35-mph rear impact. He explained that film was made of this testing to confirm that the rearward deflection angle would not exceed 25 degrees. He testified during 35-mph rear impact testing of the ES300, there was rearward deformation of the front seats, but there was no contact between the front seated dummy into the back seat. He could not recall [*61] how close the front seat or headrest came to the rear seat and that measurement was not included in the reports. He stated that once Toyota Motor confirmed the vehicle performed as designed, there was no need to retain specific measurements. He also testified that, under Toyota Motor’s document retention policy, videos of tests are retained for seven years after recording unless there is a business or engineering need to retain them longer.

Toyota Motor did not object based on spoliation when plaintiffs offered Shibata’s deposition at trial. We conclude that Toyota Motor’s evidentiary complaint about evidence of destruction of records is not preserved for appeal. Tex. R. App. P. 33.1(a).” Toyota Motor Sales, U.S.A., Inc. v. Reavis, No. 05-19-00075-CV, 2021 Tex. App. LEXIS 4378, at *60-61 (Tex. App.—Dallas June 3, 2021)

You must comply with other pertinent rules.

Evidence: “Browder lastly complains about the trial court’s sua sponte exclusion based on hearsay of several items of his evidence, [*35] including Dr. Sherry’s report and portions of Browder’s testimony when the trial court “interrupted” him and asked him not to “tell [the court] what the child said.” He contends that “every component of the final trial of the merits was tainted by the trial judge’s refusal to acknowledge [the principle] that unobjected to hearsay is admissible and constitutes admissible evidence” with probative value. See Tex. R. Evid. 802 (“Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.”). Browder appears to be contending that, had the trial court not sua sponte excluded the hearsay, the evidence would have been admitted without objection, and the trial court could have properly considered it in its determination of which conservatorship provisions were in Kelly’s best interest. However, as noted above with respect to Dr. Sherry’s report, Browder did not make any offers of proof as to any of the alleged excluded hearsay. He has not, therefore, preserved error as to the excluded evidence. See Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1;” Browder v. Moree, No. 03-19-00381-CV, 2021 Tex. App. LEXIS 4310, at *34-35 (Tex. App.—Austin June 2, 2021)

Evidence: “To preserve error regarding the exclusion of evidence, the complaining party must actually offer the evidence and secure a ruling from the trial court. See Tex. R. App. P. 33.1; In re Kahn, 533 S.W.3d 387, 394 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (orig. proceeding). Here, the record does not show that Cook met these requirements. Therefore, we overrule his challenge on this point, and overrule his fourth issue.” In re Hultquist, No. 14-19-00896-CV, 2021 Tex. App. LEXIS 4327, at *15 (Tex. App.—Houston [14th Dist.] June 3, 2021)

Jury Charge: : “At the informal charge conference during trial, Hinojosa’s counsel explained he was requesting a question and special instruction regarding formal ceremonial marriage. Specifically, counsel argued the charge should include (i) a special instruction regarding ceremonial marriage stating that two people are formally married if they agreed to be married, attended a ceremony that married them, and the ceremony was officiated by someone who had [*19] the authority to do so, followed by (ii) the question of “Are Gus and Steve married?” At the formal charge conference, however, counsel did not request that special instruction to go with his proposed question on formal, ceremonial marriage. Indeed, Hinojosa took no steps available to him to obtain a substantially correct charge on this issue. Hinojosa did not request any instruction that set out the requirements to establish the existence of a formal, ceremonial marriage under sections 2.001(a), 2.008, 2.201, or 2.202 of the family code. Hinojosa proposed no instructions or definitions on what was required to be formally married in Texas or elsewhere on October 26, 2000 or at any other purportedly relevant time. Hinojosa did not request any question or questions to obtain fact findings from the jury as to whether each of those requirements were met. Instead, Hinojosa submitted a proposed question that asked the jury whether he and LaFredo became married on October 26, 2000, without instructing the jury as to what requirements Hinojosa and LaFredo had to meet to become married under Texas law. Without such instructions or definitions, Hinojosa failed to submit a substantially correct proposed charge to obtain the [*20] fact findings necessary to establish that a formal, ceremonial marriage existed between him and LaFredo under Texas law. See, e.g., Watson, 918 S.W.2d at 645 (requested question insufficient to preserve error if legal term included in question is undefined); see also Janelli v. Janelli, 220 S.W.2d 255, 256 (Tex. Civ. App.—Dallas 1949, no writ) (evidence raised question of fact as to existence of ceremonial marriage). Hinojosa’s failure to submit a question on ceremonial marriage in substantially correct wording precludes reversal on this ground. Tex. R. Civ. P. 278.” Hinojosa v. LaFredo, No. 05-18-01543-CV, 2021 Tex. App. LEXIS 4309, at *18-20 (Tex. App.—Dallas June 2, 2021)

All for now.  Y’all have a great weekend.

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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