Error Preservation in Texas Civil Cases, June 6, 2020

June 6, 2020

Dear All:

Gradually, the various courts’ electronic systems are coming back after the ransomware attack on the OCA system.  In the last couple weeks, only a few of the courts of appeals (San Antonio, Eastland, Corpus Christi-Edinburg), have had their opinions uploaded to the alternate OCA website (www.txcourts.net); however, the opinions of several courts (Austin, San Antonio, Amarillo, El Paso, Beaumont, Eastland, Tyler, and Corpus Christi) are apparently once again being uploaded to the txcourts.gov site for those courts, and the Dallas Court apparently still uploads its opinions to its proprietary (for lack of a better word) website. Since, so far as I know, Lexis and Westlaw scrape their content for the courts of appeals off those websites, what you see in this issue of the blog are limited to those cases. But we’re getting there.

Table of Contents

Here is one in which the Supreme Court held that, by not raising the complaint until the court of appeals had twice issued opinions, a party waived an argument that its untimely summary judgment response related back to an earlier, rejected electronic filing–but the Supreme Court then held that the order granting summary judgment contained an “affirmative indication” that it considered the evidence in the late filed response anyway, and that the summary judgment movant waived its objection to the late filing by failing to get the trial court to rule on its objection. Head not swimming yet? Read the blurb

Another Supreme Court decision talked about the necessity of raising complaints in administrative type proceedings (a school board decision on a contract)

Good Cause exception

This is one worth noting: while you have to raise a complaint that attorney’s fees are not recoverable in the trial court, you can do so in a post-trial motion

Your complaint must be sufficiently specific

Jury Charge

Your complaint must be timely

Deemed Admissions

You must get a ruling on your complaint, and it is always at least best to get a written order

Continuance
Motion to Compel

The complaint you raise on appeal must comport with the complaint you raised in the trial court

Jury Charge

The Blurbs

Here is one in which the Supreme Court held that, by not raising it until the court of appeals had twice issued opinions, a party waived an argument that its untimely summary judgment response related back to an earlier, rejected electronic filing–but the Supreme Court then held that the order granting summary judgment contained an “affirmative indication” that it considered the evidence in the late filed response, and that the summary judgment movant waived its objection to the late filing by failing to get the trial court to rule on its objection. Head not swimming yet? Here’s the blurb:

Summary Judgment Response: “At issue in this case is the timeliness of B.C.’s response. A response to a no-evidence summary-judgment motion, including any evidence opposing the motion, is due seven days before the summary-judgment hearing. Rule 166a(c) provides that a response must be timely filed “[e]xcept on leave of court.” B.C. newly argued during en banc proceedings in the court of appeals that her response should relate back to her earlier, rejected electronic filing, a position she maintains at this Court. We agree with the court of appeals, however, that B.C. waived this argument by “waiting to raise the issue until after [the court of appeals] issued two opinions based on the unchallenged assertion that her response was untimely.” The question [*6] before us, then, is not whether B.C. timely filed her response, but whether the trial court considered her untimely response in granting summary judgment in Steak N Shake’s favor.

“[W]here nothing appears of record to indicate that late filing of a summary judgment response was with leave of court, it is presumed [the] trial court did not consider the response.” Courts of appeals considering whether a trial court granted leave commonly—and correctly—examine the record for “an affirmative indication that the trial court permitted the late filing.” That indication may arise from “a separate order, a recital in the summary judgment, or an oral ruling contained in the reporter’s record of the summary judgment hearing.” So while a “silent record” on appeal supports the presumption “that the trial court did not grant leave,” courts should examine whether the record “affirmatively indicates” the late-filed response was “accepted or considered.”

The court of appeals in this case did so, correctly asking whether the record contains an “affirmative indication” that the trial court permitted B.C.’s late-filed [*7] response. . . .

We nonetheless conclude that the trial court’s recital that it considered the “evidence and arguments of counsel,” without any limitation, is an “affirmative indication” that the trial court considered B.C.’s response and the evidence attached to it. . . . Our rules provide that a party may not amend its pleadings within seven days of a summary-judgment hearing without leave of court. In this context, we have held that “leave of court is presumed when a summary judgment states that all pleadings were considered, and when, as here, the record does not indicate that an amended pleading was not considered, and the opposing party does not show surprise.”

Similarly, while we presume that a trial court did not consider a late-filed response absent an affirmative indication in the record, a recital in a summary-judgment order that the trial court considered “the evidence” without qualification or limitation overcomes that presumption. [*9] And although Steak N Shake objected to the timeliness of B.C.’s response, it neither sought nor obtained a ruling on that objection before or after the trial court’s order; therefore, we have no basis to conclude the trial court did not consider all summary-judgment evidence on file at the time the motion was heard.” B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256 (Tex. 2020)

Another Supreme Court decision talked about the necessity of raising complaints in administrative type proceedings (a school board decision on a contract):

Good Cause exception: “In this Court, the district and the Commissioner contend that the evidence supports the board’s decision. In addition, as a threshold matter, they contend that Riou failed to challenge the application of a good cause per se exception at the local level, and thus she failed to preserve her complaint for judicial review.

We hold that Riou preserved her complaint. Riou challenged the sufficiency of the evidence supporting good cause to end her contract before the school board and the Commissioner. Riou’s argument that the Commissioner excused this lack of evidence by relying on an improper “per se” standard [*4] falls within this challenge.
. . . .
Riou’s consistent position is that the district lacked good cause to end her contract, and that the board’s decision is unsupported by the evidence. That argument fairly includes the examiner’s application of an exception that relieved the district from its statutory burden to show that Riou failed to meet professional standards “generally recognized and applied in similarly situated school districts.” n. 35 Riou argued extensively at the school board meeting that the district failed to carry its burden to show good cause, a position [*20] she maintained on appeal to the Commissioner. Because her challenge to a “good cause per se” exception falls within the scope of her challenge to the sufficiency of the evidence, we agree with the court of appeals that Riou preserved her challenge to the examiner’s use of “good cause per se” in ruling in favor of the district.” N. E. Indep. Sch. Dist. v. Riou, 598 S.W.3d 243 (Tex. 2020)

n. 35: “Tex. Educ. Code § 21.154(4). The Commissioner argues that the court of appeals’ preservation holding conflicts with Whitaker v. Moses, 40 S.W.3d 176 (Tex. App.—Texarkana 2001, no pet.). In Whitaker, a teacher argued on appeal that the school board had erred in using a substantial-evidence standard in deciding whether to end his term contract. Id. at 178-79. Because the teacher had failed to “bring the matter to the fore” before the school board, the Commissioner held that the teacher’s challenge was waived. The court of appeals affirmed, observing that  objections must be raised at the local level to be considered on appeal. Id. at 179. In this case, Riou challenged the sufficiency of the evidence to support her termination at the local level in argument to the local board. We disapprove of any reading of Whitaker that requires more at the local level than a challenge to the sufficiency of the evidence to invoke a substantial-evidence review under the statutory standard.” (Other footnotes omitted)

This is one worth noting: while you have to raise a complaint that fees are not recoverable in the trial court, you can do so in a post-trial motion:

Attorney’s Fees: “Anthony argues that challenging the lack of statutory authority for attorney’s fees is a type of claim that cannot be waived and he cites Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) to support that proposition. However, Holland has at least one key distinguishing feature: as noted by the Texas Supreme Court, “[b]y asserting nonrecoverability [of attorney’s fees] in its motion for j.n.o.v., Wal-Mart gave the trial court ample opportunity to rule on the availability of attorney’s fees before an erroneous judgment was rendered.” Id. The court further noted that Wal-Mart “raise[d] a timely and specific objection in the trial court that attorney’s fees are not recoverable.” Id. at 95. Thus, Holland did not conclude that this type of claim can be raised for the first time on appeal; rather, the court concluded that raising the issue in a motion for j.n.o.v. sufficiently [*5] preserved the issue for appellate review. See id.

Unlike Holland, Anthony did not timely present to the trial court his challenge to the recoverability of attorney’s fees in this case. Anthony did not file a motion for j.n.o.v. to challenge the recoverability of attorney’s fees. And he cites no authority to show that this type of claim can be raised for the first time on appeal. Furthermore,  Texas caselaw consistently holds that almost every type of claim can be waived. See, e.g., In re Baby Boy R., 191 S.W.3d 916, 921 (Tex. App.—Dallas 2006, pet. denied) (observing that even constitutional claims can be waived if not properly preserved); Jess v. Libson, 742 S.W.2d 90, 92 (Tex. App.—Austin 1987, no writ) (refusing to address appellee’s cross-issue concerning the recoverability of attorney’s fees because “the record contains no specific objection to the submission of the issue of attorney’s fees” and thus appellees failed to preserve the issue for review). Therefore, we overrule Anthony’s sole issue.” Snowden v. Artesia Wells Ranch 1994, Ltd., No. 13-19-00157-CV, 2020 Tex. App. LEXIS 4022, at *4-5 (Tex. App.—Corpus Christi May 21, 2020)

Your complaint must be sufficiently specific:

Jury Charge: “When a single broad-form question commingles valid and invalid theories, a new trial is required if the appellate court cannot determine whether the jury’s verdict is based on an invalid theory. Harris County v. Smith, 96 S.W.3d 230, 232-33 (Tex. 2002) (citing Casteel v. Crown Life Ins. Co., 22 S.W.3d 378, 388 (Tex. 2000)). Such an error is presumed harmful because it “affirmatively prevent[s] the appellant from isolating the error [*21] and presenting its case on appeal.” Id. In order to preserve this error for appellate review, the complaining party must make a timely and specific objection. Thota v. Young, 366 S.W.3d 678, 691 (Tex. 2012); see also Tex. R. Civ. P. 274; TEX. R. APP. P. 33.1. A complaint of Casteel error need not specifically reference Casteel, but the objection must be sufficient to inform the trial court that the submission includes an invalid theory of liability. See Thota, 366 S.W.3d at 691. . . . We agree with HouseCanary. While TSI made global objections to the whole of Question 37, it did not specifically identify any issues with the “complexity score” and “AVM” portions of that question. Tex. R. Civ. P. 274; Tex. R. App. P. 33.1; see also Watts v. Watts, 396 S.W.3d 19, 23 (Tex. App.—San Antonio 2012, no pet.) (“In order to preserve error for appellate review, a party’s argument on appeal must comport with its argument in the trial court.”). Nor did it object to the broad-form nature of the question. See In re A.V., 113 S.W.3d 355, 363 (Tex. 2003) (holding Casteel complaint not preserved because objection did not “put [the] trial court on notice to submit a granulated question”); Watts, 396 S.W.3d at 23. Finally, the heart of a Casteel objection is that a broad-form question combines multiple legal theories, some of which are valid and some of which are not. See, e.g., Laredo Med. Grp. Corp. v. Mireles, 155 S.W.3d 417, 426-27 (Tex. App.—San Antonio 2004, pet. denied.). The objections TSI raised in the trial court—that “the alleged items that are claimed to be trade secrets are not clearly identified specifically for the Jury”; that the terms used in Questions 37 “are vague, nebulous, misleading, and it’s impossible to determine what they mean”; [*26] and “there’s no evidence that any of the items listed are trade secrets”—were not specific enough to put the trial court on notice that TSI believed the “AVM” and “complexity score” portions of Question 37 mixed valid and invalid legal theories. See Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 157 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We overrule TSI’s Casteel challenge to Question 37.” Title Source, Inc. v. Housecanary, Inc., No. 04-19-00044-CV, 2020 Tex. App. LEXIS 4116, at *20-21, *25-26 (Tex. App.—San Antonio June 3, 2020)

Your complaint must be timely:

Deemed Admissions: “Coker argues his postjudgment request for withdrawal of the deemed admissions was timely to preserve error for appellate review. In Wheeler v. Green, the supreme court stated there are equitable principles that permit a complaint about deemed admissions to be raised for the first time in a motion for new trial filed after a final summary judgment. . . . There are many distinctions between Wheeler and this case. Coker is an attorney. [*13] He knew his responses were late on April 12 when the Commission moved to deem admissions. He knew the requests for admissions had been deemed admitted on May 29 when the trial court signed the order deeming the requests for admissions admitted. On June 20, the Commission moved for summary judgment on the basis of the deemed admissions. Coker filed his response to the motion for summary judgment on June 6, but he did not request withdrawal of the deemed admissions. The reporter’s record from the summary judgment hearing on July 13 shows Coker did not request during the hearing that the deemed admissions be withdrawn. Nor does the record show Coker requested withdrawal of the deemed admissions between the June 20 partial summary judgment and the hearing on August 20 to determine the appropriate sanction for his violations of the Rules of Professional Conduct.

Coker should have realized his “mistake” of not timely responding to the requests for admissions and that he needed to move for withdrawal of the deemed admissions well before the partial summary judgment or the final judgment in this case. The equitable considerations that might permit a party to move postjudgment for withdrawal [*14] of deemed admissions are not present in this case. Coker’s postjudgment motion to strike deemed admissions was untimely and did not preserve his issue for appellate review.” Coker v. Comm’n for Lawyer Discipline, No. 05-18-01411-CV, 2020 Tex. App. LEXIS 4217, at *11-14 (Tex. App.—Dallas June 4, 2020)

You must get a ruling on your complaint, and it is always at least best to get a written order doing so:

Continuance: “In its second issue, Tejas contends the trial court abused its discretion by denying its request for a continuance, which it embedded in its response to the plea to the jurisdiction instead of as a separate filing. HN10 We review for abuse of discretion. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). “[W]hen a continuance is sought to pursue additional discovery, the motion must describe the evidence sought, explain its materiality, and show the party requesting the continuance has used due diligence to obtain the evidence.” Zaidi v. N. Tex. Tollway Auth., No. 05-17-01056-CV, 2018 Tex. App. LEXIS 10072, 2018 WL 6426798, at *1 (Tex. App.—Dallas Dec. 6, 2018, no pet.) (mem. op.). But a party that requests a continuance must obtain a written ruling to preserve any error for appeal, and Tejas failed to do so here. See Bench Co., Inc. v. Nations Rent of Tex., L.P., 133 S.W.3d 907, 909 (Tex. App.—Dallas 2004, no pet.).” Tejas Motel, L.L.C. v. City of Mesquite, No. 05-19-00667-CV, 2020 Tex. App. LEXIS 4225, at *17 (Tex. App.—Dallas June 4, 2020)

Motion to Compel: “Although Buholtz complains the trial court’s order granting summary judgment is in error because appellees failed to produce documents he requested or because the trial court had not ruled on his motion to compel, his argument has not been preserved for our review. To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint, and the trial court must rule on the motion or refuse to rule on the motion and the complaining party [*4] must then object to the refusal. Tex. R. App. P. 33.1. The record does not show Buholtz requested a hearing on his motion to compel. It also does not show the trial court ruled on Buholtz’s motion or refused to do so. To the extent Buholtz argues the trial court erred by not ruling on his motion, he failed to preserve that complaint for our review.” Buholtz v. Leap Prop. Mgmt., No. 05-19-00857-CV, 2020 Tex. App. LEXIS 4207, at *3-4 (Tex. App.—Dallas June 3, 2020)

The complaint you raise on appeal must comport with the complaint you raised in the trial court:

Jury Charge: “In her seventh issue, Stephanie argues the trial court erred in failing to submit a question to the jury regarding whether she substantially complied with the family service plan. In order to preserve a complaint regarding alleged error in the jury charge, a party must timely object to the alleged error and obtain a ruling in the trial court. In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Failure to object to the charge before it is read to the jury waives the complaint. Id. (citing Tex. R. App. P. 33.1(a)(1); Tex. R. Civ. P. 274).

Here, Stephanie did not request a question regarding substantial compliance with the family service plan, nor did she object to the charge on this basis. Rather, when asked whether he had any objections to the charge, Stephanie’s counsel stated: “The only objection I have . . . [is] that we should have a conservative [sic] question as afforded by Section 105.002 of the family code, Subsection C1, which basically says that in a jury trial, a party is entitled to a just verdict by a jury on the issue of conservatorship.” Family Code section 105.002 does not address substantial compliance with a family service plan. See Tex. Fam. Code Ann. § 105.002. Therefore, by failing to object to the jury charge on this basis, Stephanie waived her complaint, [*11] and we overrule her seventh issue. See B.L.D., 113 S.W.3d at 349.” In the Interest of M.X.R., No. 04-20-00042-CV, 2020 Tex. App. LEXIS 4063, at *10-11 (Tex. App.—San Antonio May 27, 2020)

There were also a few cases in which courts held that parties failed to preserve their complaints by not raising the complaints in the trial courts.

All for now.  Hope this helps.  Y’all stay safe and well.

Yours, Steve Hayes

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