Juneteenth 2021
Dear Friends:
It’s been too long coming. Happy Juneteenth.
Table of Contents
An objection that an affidavit is conclusory can first be raised on appeal
Two jury charge rulings remind us that objections must be timely, and that a complaint must be “‘”specific[] enough to support the conclusion that [the] trial court was fully cognizant of the ground of complaint and deliberately chose to overrule it.’”
To preserve a complaint that your opponent’s no evidence motion for summary judgment is not specific enough, you must raise that complaint and obtain a ruling on it in the trial court
The complaint you raise on appeal must be the complaint you raised at trial
Experts
There is a case this week in which one evidentiary objection was preserved and one not
You can preserve a legal sufficiency complaint in a jury trial by objection to the submission of the issue to the jury
You have to comply with the pertinent rules–like Rule 324’s requirement of filing a motion for new trial to preserve a factual sufficiency complaint
You have to obtain a ruling on your complaints
Continuance
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Affidavit
Attorney’s Fees
Constitution
Evidence
Evidence
Evidence
Order
Blurbs
An objection that an affidavit is conclusory can first be raised on appeal:
Affidavit: “Appellees assert that appellants failed to preserve this point. However, “[a] party may challenge an expert’s testimony as conclusory, making a no-evidence challenge, even when the party did not object to its admissibility at trial.” Id.” Iola Barker v. Hurst, No. 01-19-00529-CV, 2021 Tex. App. LEXIS 4717, at *27 (Tex. App.—Houston [1st Dist.] June 15, 2021)
These two jury charge rulings remind us that objections must be timely, and that a complaint must be “‘”specific[] enough to support the conclusion that [the] trial court was fully cognizant of the ground of complaint and deliberately chose to overrule it.’”:
Jury Charge: “While Allstate frames this issue as a harm analysis, we conclude it rests in an objection to the submission of these issues. As a result, Allstate’s complaint on this issue is not preserved for our review unless it raised that objection in the trial court “specifically enough to support the conclusion that [the] trial court was fully cognizant of the ground of complaint and deliberately chose to overrule it.” Hamid v. Lexus, 369 S.W.3d 291, 296 (Tex. App.—Houston [1st Dist.] 2011, no pet.). It was also required to raise that objection before the court read the charge to the [*22] jury. Tex. R. Civ. P. 272; Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 383 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The first time Allstate specifically argued that the submission of the cosmetic damage exclusion was the keystone of its entire defense was in its post-judgment motion, long after the charge was read to the jury. The only objections Allstate timely asserted to Question 1 were: (1) it was conclusively negated by the evidence; and (2) one of its instructions constituted an improper comment on the weight of the evidence. Because the arguments Allstate timely raised in the trial court do not comport with the argument it raises here, it waived its complaint that the submission of Question 1 confused or misled the jury. See Tex. R. Civ. P. 272; Baker, 355 S.W.3d at 383.” Allstate Vehicle & Prop. Ins. Co. v. Reininger, No. 04-19-00443-CV, 2021 Tex. App. LEXIS 4760, at *21-23 (Tex. App.—San Antonio June 16, 2021)
Jury Charge: “We hold Allstate also waived this complaint about the trial court’s submission of Question 2 and its refusal to submit Allstate’s competing proposed question. Both Question 2 and Allstate’s proposed question asked the jury to consider whether the cosmetic damage exclusion applied. Allstate described its proposed question to the trial court as “our counter-proposal to [Question] No. 2.” Because both questions involved the same issue, the trial court asked Allstate to explain how they differed. In response, Allstate argued: (1) its proposed question used the [*23] applicable language from the policy and Question 2 did not; (2) Allstate’s proposed question asked the jury to consider the cosmetic damage exclusion unconditionally, while Question 2 instructed the jury not to consider the exclusion unless it had already found the parties agreed to include it in the policy; and (3) Question 2 constituted an improper comment on the weight of the evidence. However, Allstate did not argue, as it does on appeal, that Question 2’s conditional submission of the cosmetic damage exclusion could potentially mislead or confuse the jury during its consideration of Reininger’s non-contract claims. Because Allstate did not timely assert that argument in the trial court, it waived it. See Tex. R. Civ. P. 272; Baker, 355 S.W.3d at 383.” Allstate Vehicle & Prop. Ins. Co. v. Reininger, No. 04-19-00443-CV, 2021 Tex. App. LEXIS 4760, at *21-23 (Tex. App.—San Antonio June 16, 2021)
To preserve a complaint that your opponent’s no evidence motion for summary judgment is not specific enough, you must raise that complaint and obtain a ruling on it in the trial court:
Summary Judgment: “The Hoffmans also challenge the specificity of Mena’s motion and argue that it “contained no reference to or description of how a fact in the case related to a particular missing element.” It is unclear what specific references or descriptions the Hoffmans are asserting are required to put them on “fair notice” beyond the identification of the challenged elements. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (analogizing purpose of specificity requirement to “that of the ‘fair notice’ pleading requirements”); see also B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020) (“[A] movant seeking a no-evidence summary judgment need only identify ‘one or more essential elements of a claim or defense . . . as to which there is no evidence,’ and the burden then shifts to the nonmovant to produce ‘summary judgment evidence raising a genuine issue of material fact.'” (quoting Tex. R. Civ. P. 166a(i))). Regardless, the Hoffmans did not preserve error as to any alleged lack of specificity, and our case law requires that “[t]o attack a summary-judgment motion on specificity grounds, the nonmovant must specially except” and “obtain a ruling on the special exception to preserve the issue for appeal.” See Vodicka v. Lahr, No. 03-10-00126-CV, 2012 Tex. App. LEXIS 4557, 2012 WL 2075713, at *4 (Tex. App.—Austin June 6, 2012, no pet.) (mem. op.) (citing Tex. R. App. P. 33.1(a); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342-343 n.7 (Tex. 1993)).” Hoffman v. Mena, No. 03-19-00409-CV, 2021 Tex. App. LEXIS 4815, at *9 n.3 (Tex. App.—Austin June 17, 2021)
The complaint you raise on appeal must be the complaint you raised at trial:
Evidence: “Allstate argues the trial court abused its discretion by allowing Reininger to impeach Allstate’s corporate representative, Stephan Tendorf, with previous complaints filed against Allstate with the TDI, as well as Allstate’s responses to those complaints. However, the only harm Allstate identifies [*32] from Reininger’s use of the TDI matters is: (1) it may have influenced the jury’s finding that Allstate knowingly engaged in false, unfair, or deceptive acts; and (2) it was “unduly prejudicial.” As Reininger notes, Allstate did not object to the TDI matters on the basis that the material’s probative value was outweighed by its prejudicial effect. As a result, it waived that objection. Tex. R. App. P. 33.1;” Allstate Vehicle & Prop. Ins. Co. v. Reininger, No. 04-19-00443-CV, 2021 Tex. App. LEXIS 4760, at *31-32 (Tex. App.—San Antonio June 16, 2021)
Experts: “Appellants repeat their preemption arguments on appeal. They also complain that Dr. Pinto’s report fails to sufficiently describe the standard of care, the breaches appellees allege, or how those breaches caused the deaths of Gutierrez and Romero. However, because appellants did not develop their sufficiency arguments below, appellees did not have an opportunity to respond to them and the trial court did not have an opportunity to consider them. [*8] See, e.g., Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014) (observing preservation of error doctrine “conserves judicial resources and promotes fairness by ensuring that a party does not neglect a complaint at trial and raise it for the first time on appeal”). That is especially important where, as here, the trial court would have discretion—had it found Dr. Pinto’s report deficient—to grant an extension to cure the deficiency. Tex. Civ. Prac. & Rem. Code § 74.351(c). We therefore conclude appellants’ argument that Dr. Pinto’s report is insufficient is not properly preserved.” Se. SNF, LLC v. Gutierrez, Nos. 04-21-00026-CV, 04-21-00027-CV, 2021 Tex. App. LEXIS 4762, at *7-8 (Tex. App.—San Antonio June 16, 2021)
Here is one in which one evidentiary objection was preserved and one not:
Evidence: “Plaintiff’s Exhibit 36 was a chart showing Mendoza’s wages beginning the week of January 13, 2016 and ending November 12, 2016, noting the days and times Mendoza was unable to work. Plaintiff’s Exhibit 37 included several pay stubs dated from November 12, 2015 through July 30, 2016 showing the net pay Mendoza received after payroll deductions and federal income taxes.
At trial, before voir dire of the jury panel, Metro objected to the admission of Plaintiff’s Exhibits 36 and 37 as not in compliance with section 18.091 of the Civil Practice and Remedies Code, which requires claimants seeking damages for loss of earnings to present their evidence “in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law.” Tex. Civ. Prac. & Rem. Code § 18.091. The trial court overruled Metro’s objection to Plaintiff’s Exhibit 37, the pay stubs, and asked Mendoza to revise Plaintiff’s Exhibit 36, the chart. Mendoza agreed to revise Plaintiff’s Exhibit 36. After the jury was seated Metro raised compliance with section 18.091 again, but the trial court [*22] did not rule on Metro’s objection. Mendoza testified, without objection, that he lost wages because he was demoted, was not paid when he attended medical appointments, and lost overtime pay. Metro did not object to Mendoza’s testimony or his reference to both Plaintiff’s Exhibits 36 and 37 in his testimony. We hold that Metro waived any objection to Plaintiff’s Exhibit 36 by failing to obtain a ruling on its objection. See Tex. R. App. P. 33.1″ Metro. Transit Auth. v. Mendoza, No. 14-19-01011-CV, 2021 Tex. App. LEXIS 4799, at *21-22 (Tex. App.—Houston [14th Dist.] June 17, 2021)
You can preserve a legal sufficiency complaint in a jury trial by objection to the submission of the issue to the jury:
Legal Sufficiency: “We first address whether Father preserved error…. To preserve a challenge to the legal sufficiency of evidence in a jury trial, a party must: (1) file a motion for instructed verdict, (2) file a motion for judgment [*16] notwithstanding the verdict, (3) object to the submission of the issue to the jury, (4) file a motion to disregard the jury’s answer to a vital fact issue, or (5) file a motion for new trial. …Father preserved his legal-sufficiency complaint by objecting to the submission of the entire case to the jury. See Cecil, 804 S.W.2d at 510-11.” E.N. v. Tex. Dep’t of Family & Protective Servs., No. 03-21-00014-CV, 2021 Tex. App. LEXIS 4831, at *15-16 (Tex. App.—Austin June 17, 2021)
You have to comply with the pertinent rules–like Rule 324’s requirement of filing a motion for new trial to preserve a factual sufficiency complaint:
Factual Sufficiency: “We first address whether Father preserved error. …To preserve a challenge to the factual sufficiency of the evidence in a jury trial, a party must file a motion for new trial. See Tex. R. Civ. P. 324(b)(2) (“A point in a motion for new trial is a prerequisite to the following complaints on appeal . . . A complaint of factual insufficiency of the evidence to support a jury finding . . . .”); Father did not preserve his factual-sufficiency complaint because he failed to file a motion for new trial. ” E.N. v. Tex. Dep’t of Family & Protective Servs., No. 03-21-00014-CV, 2021 Tex. App. LEXIS 4831, at *15-16 (Tex. App.—Austin June 17, 2021)
You have to obtain a ruling on your complaints:
Continuance: “Finally, we consider the verified statement of the Property Owners’ counsel. The Property Owners’ verified response contained counsel’s statement that the exigencies of the COVID-19 pandemic prevented the Property Owners from obtaining documentation showing they had timely paid their taxes. But the disruption caused by the pandemic does not itself raise—or relieve the Property Owners of their burden to raise—a genuine issue of material fact.
It might have been a sufficient ground for a continuance of the hearing on HCAD’s plea to the jurisdiction, which the Property Owners requested in their verified response to HCAD’s supplement….. But the Property Owners never obtained a ruling on or objected to the district court’s failure to rule on their request. See Tex. R. App. P. 33.1(a)(2).” Harris Cty. Appraisal Dist. v. 4085 Westheimer Holdings, Ltd., No. 01-20-00325-CV, 2021 Tex. App. LEXIS 4723, at *17-18 (Tex. App.—Houston [1st Dist.] June 15, 2021)
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court:
Constitution
Evidence
Order (form)
All for now. Have a great weekend, and enjoy Juneteenth.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com