September 10, 2022
Still running behind. The Courts of Appeals always churn out a ton of opinions, and error preservation decisions, in the last week of the fiscal year, and this year was no exception, as shown by the following rulings from the last week and a half of the Fiscal Year ending August 31, 2022.
Table of Contents
You have to preserve your complaint about evidence in an administrative proceeding
These Courts held that a party’s complaint was sufficiently specific
Motion to Strike
Here is a case confirming that there are times when an oral objection raised at a hearing can preserve a complaint under TRAP 33.1
A complaint that a temporary injunction order does not comply with Rule 683 can first be raised on appeal (at least in some courts of appeals)
Remember: if your new trial motion requires evidence, you have to have an evidentiary hearing to preserve your complaint
Revocation of Consent
You have to bring your complaint to the trial court’s attention–having a hearing and getting a ruling are two ways to make sure you did so
Your complaint must be sufficiently specific
Your complaint must be timely
Jury Finding (Legal and Factual Sufficiency)
Summary Judgment (Motion to Reconsider)
You have to comply with other pertinent rules
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Alternate Appearance Media
Specificity of 91a Motion
You have to preserve your complaint about evidence in an administrative proceeding:
Evidence: “We begin by determining whether Kearl waived this issue. A participant in an administrative hearing “must properly object to admission of evidence to preserve error for appeal.” Texas Dep’t of Fam. and Protective Servs. v. K.G., No. 01-20-00315-CV, 2022 Tex. App. LEXIS 597, 2022 WL 243193, at *6 (Tex. App.—Houston [1st Dist.] Jan. 27, 2022, no pet.) (mem. op.)…. The Commission is correct that Kearl did not object when the test results were offered into evidence before the Board and before the ALJ on appeal. Kearl does not assert the test results are inadmissible. Instead, he argues that the Commission could not lawfully discipline him based on the results…. Kearl made that argument to the Board, the ALJ, and in his motion for rehearing filed with the Commission….Kearl therefore preserved this issue for review.” Kearl v. Tex. Racing Comm’n, No. 03-21-00037-CV, 2022 Tex. App. LEXIS 6410, at *13-14 (Tex. App.—Austin Aug. 26, 2022, no pet. h.)
These Courts held that a party’s complaint was sufficiently specific:
Jury Charge: “We first address Oilfield’s argument that Warrior did not preserve error as to the sufficiency of the evidence supporting its waiver defense asserted in issue 1. In its motion for judgment notwithstanding the verdict,1 Warrior argued that, contrary to the jury’s answers to the jury questions, the evidence “conclusively establishes the affirmative defense of waiver,” elaborating as follows:
The evidence conclusively established that Oilfield Specialties or Umphries2 waived Warrior’s failure to comply. That is, the evidence conclusively established that Oilfield Specialties or Umphries intentionally surrendered a known right or engaged in intentional conduct inconsistent with claiming that right. The jury’s contrary answer is supported by legally insufficient evidence.
While Oilfield contends this language is not sufficiently specific to preserve error, the supreme court has determined that less-specific language may preserve legal-sufficiency issues on appeal. See Arkoma Basin Expl. Co., Inc. v. FMF Associates 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008) (post-trial motion asserting that “there is no evidence . . . to support the jury’s answers to each part of Question 4” preserved legal-sufficiency issue). As explained by the supreme court, “[g]enerally, a no-evidence objection directed to a single jury issue is sufficient to preserve error without further detail. Thus, as Justice Calvert wrote for this Court 50 years ago, while a single such objection to all 79 jury answers is too general, the same objection addressed to each individual issue is adequate.” Id. (citing Biggers v. Continental Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 361 (1957) (Calvert, J.)). We conclude Warrior’s objection was sufficiently specific to preserve error. Cf. Tex. R. App. P. 33.1(a).
Oilfield also argues that Warrior’s waiver issue is barred because Warrior “invited error” by requesting a jury issue as to this defense, thereby conceding, contrary to its argument on appeal, that there was a fact issue as to waiver. Texas Rule of Civil Procedure 279, however, states, “A claim that the evidence was legally or factually insufficient to warrant the submission of any question may be made for the first time after verdict, regardless of whether the submission of such question was requested by the complainant.” Tex. R. Civ. P. 279.” Warrior Energy Servs. Corp. v. Oilfield Specialties, No. 14-20-00069-CV, 2022 Tex. App. LEXIS 6388, at *3-5 (Tex. App.—Houston [14th Dist.] Aug. 25, 2022, no pet. h.)
Motion to Strike: “We disagree with Henderson that Rivera’s objection was too vague to comply with Rule 33.1. While Rivera’s complaint lacks specificity, the complaint need not be specific if the grounds are apparent from the context in which the complaint is made. See Tex. R. App. P. 33.1(a). At the hearing on the amended summary judgment motion, the trial court addressed Rivera’s motion to strike in Rivera’s absence. The court stated that it understood Rivera’s complaint to be that the amended summary judgment motion was filed out of time, which broadly comports with Rivera’s issue on appeal that the amended motion was filed too late and without leave of court. The trial court reasoned through this complaint on the record, ultimately rejecting it because no scheduling order had issued in the case and the deadlines for holding a hearing on the amended motion had been reset. The record indicates Henderson also understood this to be Rivera’s complaint, as well as that Henderson was not entitled to argue the statute of limitations issue multiple times. Thus, because the appellate record indicates that Rivera’s complaint was apparent from the context, the complaint satisfied Rule 33.1(a)(1)….We also disagree with Henderson that Rivera did not preserve error because he “did not object to the trial court’s presumed failure to rule on the Motion to Strike” the amended summary judgment motion. Rule 33.1(a)(2)(A) states that error is preserved by either an express or implied ruling. Tex. R. App. P.. 33.1(a)(2)(A) (stating that trial court must rule on complaint “either expressly or implicitly”). A “ruling may be implied only if the implication was clear[.]” FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 837 (Tex. 2022) (quoting Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam)) (internal quotation marks omitted).” Rivera v. Henderson, No. 01-21-00418-CV, 2022 Tex. App. LEXIS 6472, at *14-15 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet. h.)
Here is a case confirming that there are times when an oral objection raised at a hearing can preserve a complaint under TRAP 33.1:
Constitution: “Andrea contends that Cristina waived her right to bring her “constitutional challenge” to the gender-neutral provisions in the Family Code, because Cristina only raised her constitutional arguments orally during the temporary orders hearing and failed to raise them in a written pleading….we apply the general preservation rule set forth in Rule 33.1(a) of the Texas Rules of Appellate Procedure, which provides that a party may preserve an issue for appellate review by presenting it to the trial court in a “timely request, motion, or objection,” and by obtaining either an express or implied ruling on the issue. Tex.R.App.P. 33.1(a)(1)(A),(2)(A). And Rule 33.1 has no requirement that a party must raise an issue in writing to preserve it for appellate review; courts have held that a party may preserve error under this rule by raising an issue through oral objection….We thus conclude that Cristina sufficiently preserved her constitutional issues by arguing these issues at the temporary orders hearings. In fact, it was Andrea who first raised the issue at the hearing by making her oral motion for directed verdict claiming that Cristina did not meet the definition of a parent under the Family Code. And Cristina responded in kind by arguing—just as she does on appeal—that the Family Code must be interpreted in a constitutionally-sound and gender-neutral manner under the Supreme Court’s holdings in Obergefell and its progeny to permit same-sex spouses in to assert their rights as parents just as opposite-sex spouses have a right to do under the Code. And in turn, the trial court impliedly rejected this argument when it concluded that Cristina lacked standing as a “parent” under the Code.” In the Int. of D.A.A.-B., No. 08-21-00058-CV, 2022 Tex. App. LEXIS 6553, at *35-38 (Tex. App.—El Paso Aug. 30, 2022, no pet. h.)
A complaint that a temporary injunction order does not comply with Rule 683 can first be raised on appeal (at least in some courts of appeals):
Temporary Injunction: “Sandoval notes that Lamas did not object to the form of the order below. But this Court has recognized that a temporary injunction order that does not comply with Rule 683 can be reviewed even if a defendant does not raise an objection on this basis in the trial court. See Fasken v. Darby, 901 S.W.2d 591, 593 (Tex.App.–El Paso 1995, no writ); see also Hoist Liftruck Mfg., Inc. v. Carruth-Doggett, Inc., 485 S.W.3d 120, 124 (Tex.App.–Houston [14th Dist.] 2016, no pet.) (recognizing that this Court has held that a party need not preserve error on a complaint that a temporary-injunction order does not comply with Rule 683). Thus, we will address Lamas’s complaint on the merits.” Lamas v. Gonzalez, No. 08-21-00095-CV, 2022 Tex. App. LEXIS 6554, at *23 n.7 (Tex. App.—El Paso Aug. 30, 2022, no pet. h.)
Remember: if your new trial motion requires evidence, you have to have an evidentiary hearing to preserve your complaint:
Revocation of Consent: “Castro asserts in her reply brief that she preserved error on this issue under Texas Rule of Appellate Procedure 33.1(b) by raising it in her motion for new trial, which was overruled by operation of law. 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.”). However, Castro does not address Rule 33.1(b)’s exception for complaints requiring that evidence be taken. Here, Castro’s complaint is that the trial court should have taken evidence on the issue of Contreras’s revocation of consent to her adoption of H.M. Accordingly, she was required to call the motion to the court’s attention by requesting a hearing rather than allowing the motion for new trial to be overruled by operation of law.” Castro v. Contreras, No. 03-21-00610-CV, 2022 Tex. App. LEXIS 6625, at *30 n.2 (Tex. App.—Austin Aug. 31, 2022, no pet. h.)
You have to bring your complaint to the trial court’s attention–having a hearing and getting a ruling are two ways to make sure you did so:
Affidavit: “At the hearing on its plea, and in its reply to Anderson’s response, AISD objected to these portions of Anderson’s affidavit as inadmissible hearsay. Nothing in the record, however, shows that AISD obtained a ruling on its objection. See Tex. R. App. P. 33.1; Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex. App.—Dallas 2011, no pet.) (noting that “[a]n objection that an affidavit contains hearsay is an objection to the form of the affidavit” and that “[t]he failure to obtain a ruling from the trial court on an objection to the form of an affidavit waives the objection”).” Austin Indep. Sch. Dist. v. Anderson, No. 03-21-00286-CV, 2022 Tex. App. LEXIS 6367, at *31 n.3 (Tex. App.—Austin Aug. 25, 2022, no pet. h.)
Affidavit (Sham): “Massey argues in his reply brief that because DISA did not object to his declaration in the trial court or obtain a ruling, it waived any objection to his declaration. DISA asserts in its sur-reply that it objected to Massey’s declaration and the trial court sustained its objection in its summary judgment order.
An objection that an affidavit constitutes a sham affidavit is an attack on the form of the affidavit, and not its substance….Although the trial court granted summary judgment, it did not explicitly rule on DISA’s objection to Massey’s declaration as a sham…. Nor did it implicitly rule on the objection by granting the motion….The trial court’s summary judgment order is thus insufficient to preserve error.
After the trial court granted summary judgment in favor of DISA, however, Massey filed a motion for new trial reasserting his argument that DISA had not met its burden to prove his claims were untimely under the applicable statute of limitations. In support of his argument, Massey again offered his declaration and pointed to the statement in his declaration, attached to his motion, that “[he] was 100% certain that the MRO did not tell [him] that he had tested positive for methamphetamine.” In its response to Massey’s motion, DISA re-urged its sham affidavit objection to Massey’s declaration and [*26] requested that the court disregard the declaration. During the hearing on Massey’s motion for new trial, Massey’s counsel also addressed DSI’s objection to Massey’s declaration arguing the objection should be overruled. After Massey’s motion for new trial was initially overruled by operation of law, the trial court denied the motion by written order on July 1, 2021, while it still had plenary power. DISA’s renewed sham affidavit objection and the trial court’s ruling denying Massey’s motion for new trial, including its argument that DISA’s sham affidavit objection should be overruled, was sufficient to preserve DISA’s objection to Massey’s declaration for appellate review. See Tex. R. App. P. 33.1(b);” Massey v. Disa Glob. Sols., Inc., No. 01-21-00355-CV, 2022 Tex. App. LEXIS 6681, at *23-27 (Tex. App.—Houston [1st Dist.] Sep. 1, 2022, no pet. h.)
Whistleblower Report: “In its fourth issue, the City argues that, as a matter of law, the Act does not apply because Burgess was not “an appropriate law enforcement authority” to whom to make a report. Grim and Maynard dispute this. We need not decide the City’s fourth issue because the City failed to preserve error, as the City did not request or receive any ruling on this element, based on the record before us. See Tex. R. App. P. 33.1.” City of Denton v. Grim, No. 05-20-00945-CV, 2022 Tex. App. LEXIS 6509, at *23-24 (Tex. App.—Dallas Aug. 29, 2022, no pet. h.)
Statutory Construction: “We need not resolve this statutory-construction issue, however, because Castro failed to preserve this issue for appellate review. See Tex. R. App. P 47.1. Preservation requires one of three rulings by the trial court: an express ruling; an implicit ruling; or a refusal to rule, coupled with an objection to that refusal by the complaining party. Id. R. 33.1(a)(2). The record does not reflect either an objection by Castro to the trial court’s refusal to rule, if any, or an express ruling on her motion requesting an evidentiary hearing on Contreras’s refusal to consent to the adoption.” Castro v. Contreras, No. 03-21-00610-CV, 2022 Tex. App. LEXIS 6625, at *28-29 (Tex. App.—Austin Aug. 31, 2022, no pet. h.)
Your complaint must be sufficiently specific:
Dismissal: “In his reply brief on appeal, in addition to noting that his May 12, 2020 motion included a due process argument, Nasr noted that his July 2, 2020 motion asked the trial court to take judicial notice of its file contents, which, Nasr argued, “means the previous claims of due process in [his May 12, 2020 motion] were attached to and included by reference in [his July 2, 2020 motion].”
We disagree with Nasr’s inclusion-by-reference argument because it renders meaningless the requirement that a “timely” and “specific” objection or motion be made with “sufficient specificity to make the trial court aware of the complaint.” See Tex. R. App. P. 33.1(a)(1)(A). Based on the record before us, we conclude that Nasr failed to preserve error on the three issues presented on appeal because Nasr did not make a timely, specific objection or motion in the trial court with sufficient specificity to make the trial court aware of those issues and because his arguments on appeal do not comport with his argument in the trial court. See Tex. R. App. P. 33.1(a)(1)(A); Dreyer, 871 S.W.2d at 698; Knapp, 281 S.W.3d at 170.
As reflected in his July 2, 2020 motion, Nasr’s only objections to the June 4, 2020 order of dismissal below had to do with the settlement agreement’s scope and substantive effect,7 not procedural matters regarding due process, consent to settle, or the trial court’s authority to enter the order. Nasr cannot complain on appeal about different alleged errors in an order that he did not give the trial court a chance to correct. See Tex. R. App. P. 33.1(a)(1)(A).” Nasr v. Whitehead, No. 05-20-00766-CV, 2022 Tex. App. LEXIS 6216, at *8-9 (Tex. App.—Dallas Aug. 23, 2022, no pet. h.)
Your complaint must be timely:
Arbitration: “After examining the totality of the circumstances and the key factors concerning waiver, we conclude that Great Lakes substantially invoked the litigation process in contravention of its contractual forum selection clause. See LaLonde, 593 S.W.3d at 220. Great Lakes waited almost two years to file its motion to dismiss based on the forum selection clause, engaged in discovery on the merits, and most tellingly, sought and was denied summary judgment on the merits. Further, Great Lakes’s substantial invocation of the judicial process prejudiced the Hursts.” In re Great Lakes Ins. SE, No. 13-22-00124-CV, 2022 Tex. App. LEXIS 6407, at *18-19 (Tex. App.—Corpus Christi Aug. 25, 2022, no pet. h.)
Arbitration: “Green filed the motion to compel on the eve of trial after the case had been pending for over a year and after the trial court conducted a pretrial hearing at which it ordered trial to begin two days later. The motion was untimely under the trial court’s pretrial order, which required all substantive motions be set and heard at least thirty days before trial. The motion was also untimely because Green filed the motion after the deadlines had passed to respond to Velocity’s merits-discovery, including requests for admission, without Green responding to those requests, and after Velocity’s withdrawal of its motion for continuance of the April 27, 2020 trial setting. Green told the court he filed the motion after “our conversation” about the motion at the pretrial hearing and because the trial court indicated the motion needed to be uploaded before trial. Although Green told the court he had done research on arbitration “originally from day one,” he did not explain why he waited to file the motion to compel until the eve of trial. Green asserted a decision to invoke arbitration only after Velocity and the trial court were ready to try the case. We agree with the trial court’s assessment that Green’s request came too late….Green allowed all deadlines to pass, engaged in pretrial settlement negotiations, and only sought arbitration when he realized, on the eve of trial, that the case would be tried imminently. The circumstances surrounding the timing of Green’s motion to compel indicate the motion was filed as a “Hail Mary” attempt to avoid going to trial. Based on the totality of the circumstances, we conclude the trial judge did not err by implicitly concluding Green substantially invoked the judicial process before seeking to compel arbitration….Green and Velocity were in settlement negotiations in the weeks leading up to trial. Those negotiations led Velocity to seek a continuance of the April 27, 2020 trial date. When the trial court heard the continuance motion on April 27, 2020, Velocity withdrew the motion and the trial court set trial for April 29, 2020. Only then, when faced with an imminent trial date, did Green file his motion to compel arbitration. The timing of this filing demonstrated an inconsistent intent by Green concerning whether to proceed in the trial court or seek arbitration that harmed Velocity’s legal position….Moreover, by that point in the litigation, Green had failed to respond to discovery, which provided Velocity the opportunity to invoke deemed admissions and obtain judgment in its favor quickly and efficiently. Had Velocity been forced to arbitration, the discovery process would have begun again, leaving Velocity without the benefit of deemed admissions and potentially facing an expensive and lengthy discovery process with the AAA. The timing of Green’s motion, thus, harmed Velocity’s legal position. ” Green v. Velocity Invs., LLC, No. 05-20-00795-CV, 2022 Tex. App. LEXIS 6404, at *11-12 (Tex. App.—Dallas Aug. 25, 2022, no pet. h.)
Jury Finding (Legal and Factual Sufficiency): “First, we hold Croom did not waive her no-duty argument by failing to object to the jury charge based on the nature of her complaints on appeal. If she were arguing the trial court erred in submitting her name in the apportionment of liability question, she would have waived this complaint by failing to object at the formal charge conference and by inviting error when she included her name in the general negligence question on Appellants’ proposed charge of court….However, Croom did not object to the charge as submitted on the general negligence question. Rather, her no-duty argument reflects her legal sufficiency challenge, in which she argues a complete absence of a vital fact—that is, the existence of an independent duty owed to the Appellees….As stated previously, legal and factual sufficiency arguments may be raised for the first time in a motion for new trial. See Cecil, 804 S.W.2d at 510-11. Here, Appellants’ complaint regarding the legal and factual sufficiency of the evidence against Croom in their motion for JNOV and motion for new trial. Accordingly, she preserved error on the sufficiency grounds regarding existence of a legal duty. Id….Finally, we find Croom did not waive her argument regarding the legal and factual sufficiency of the evidence regarding causation….Here, Appellants complained of the legal and factual sufficiency of the evidence against Croom as to causation in their motion for JNOV and motion for new trial. Accordingly, she preserved error on the sufficiency grounds as they pertain to proximate cause. Id. We find Croom preserved error on her complaints regarding the legal and factual sufficiency of the evidence regarding the elements of duty and proximate cause. We proceed to our analysis of the merits of Appellants’ first issue on appeal.” Rayner v. Claxton, No. 08-20-00145-CV, 2022 Tex. App. LEXIS 6651, at *29-32 (Tex. App.—El Paso Aug. 31, 2022, no pet. h.)
Summary Judgment: “Chaudhary also argues that the appellees did not timely inform him that they considered the contract terminated under the default provision. Chaudhary did not raise this argument in opposition to the appellees’ motion for summary judgment or amended motion for summary judgment. Instead, he raised it for the first time in his motion for new trial. This was not sufficient to preserve this issue for appellate review….see Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); see also Tex. R. App. P. 33.1(a) (as prerequisite for presenting complaint for appellate review, record must show complaint was made to trial court by timely request, objection, or motion).” Chaudhary v. Mora, No. 01-21-00352-CV, 2022 Tex. App. LEXIS 6474, at *22 (Tex. App.—Houston [1st Dist.] Aug. 30, 2022, no pet. h.)
Summary Judgment (Motion to Reconsider): “ As we read the trial court’s order, though the trial court denied Appellant’s motion to reconsider, it did consider the motion and reaffirm its ruling by noting that Appellant had filed a motion to reconsider but that “[t]he [c]ourt decline[d] to [reconsider its ruling], primarily because its ruling on summary judgment was correct: Section 12.13 of the Loan Agreement covers claims between the parties.” The import of this sentence is that the trial court had considered Appellant’s arguments on whether the Loan Agreement provided for the recovery of attorneys’ fees and rejected those arguments. Simply on the issue of whether Appellant has preserved its argument on the fee issue for appeal, Appellant’s motion in combination with the trial court’s ruling convinces us that it has.” 1701 Commerce Acquisition, LLC v. Macquarie US Trading, LLC, No. 02-21-00333-CV, 2022 Tex. App. LEXIS 6697, at *65-66 (Tex. App.—Fort Worth Aug. 31, 2022, no pet. h.)
You have to comply with other pertinent rules:
Evidence: “Stephen then testified, referring to Exhibit 9 and other exhibits. However, Stephen did not offer Exhibit 9 or any of his exhibits into evidence, and the trial court did not admit them into evidence. Stephen did not preserve any error because he never offered Exhibit 9 into evidence, and the trial court never ruled to exclude it.” Holland v. Holland, No. 05-21-00597-CV, 2022 Tex. App. LEXIS 6524, at *19 (Tex. App.—Dallas Aug. 29, 2022, no pet. h.)
Findings: “Further, we note that although TLC did request findings of fact and conclusions of law regarding the denial of defendant’s motion for fees and sanctions, the trial court failed to issue them. See Tex. R. Civ. P. 296. Trevino objected to this request, contending that the rule states that a party may request the court to state in writing its findings of fact and conclusions of law “[i]n any case tried to a district or county court without a jury,” and that here, no such trial occurred. TLC then waived this point, though, when it failed to file the “Notice of Past Due Findings of Fact and Conclusions of Law” under Rule 297 when the trial court did not comply with its request after twenty days. See id. R. 297;….”Accordingly, we overrule this issue.” TLC CEC Parkdale, LLC v. Trevino, No. 13-20-00382-CV, 2022 Tex. App. LEXIS 6306, at *8-9 (Tex. App.—Corpus Christi Aug. 25, 2022, no pet. h.)
Recusal: “We next take up Amrouni’s first issue, in which he asserts the judge who heard this case, the Honorable Barbara Stalder of the 280th District Court, was biased against him. According to Amrouni, “[t]his bias stems from a deep-seated favoritism of protective order applicants and antagonism toward protective order respondents.” Amrouni bases his allegation of partiality on the record of the hearing and a number of documents attached to his appellate brief.
Without expressing any opinion on the potential merit of his contentions, the record reveals Amrouni did not bring his complaint to the trial court’s attention through a verified motion to recuse. See Tex. R. Civ. P. 18a….Because Amrouni filed no motion to recuse, he has waived his issue concerning judicial bias. See Tex. R. App. P. 33.1;” Amrouni v. Bhakhrani, No. 05-21-00278-CV, 2022 Tex. App. LEXIS 6614, at *11-12 (Tex. App.—Dallas Aug. 30, 2022, no pet. h.)
Reinstatement: “We are compelled, though, to agree with McIlveen’s third argument, contending that People Priority’s failure to file a motion for reinstatement of its case waived any due process violation caused by a lack of notice. Rule 165a provides a procedure for reinstatement of a case dismissed for want of prosecution: the party or its attorney can file and serve a verified motion within thirty days explaining why the case should be reinstated; the trial court must set a hearing on the motion as soon as practicable and send notice to all parties or their attorneys of record of the date, time and place of the hearing; and the trial court must reinstate the case if it “find[s] after a hearing that the failure of the party or [its] attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Tex. R. Civ. P. 165a.3. If a party “has the time and opportunity” to file a motion for reinstatement that could raise an error in the dismissal process, but it fails to file such a motion, then it has waived any due process error in that process…
The record indicates that the trial court sent People Priority (and McIlveen) notice of the dismissal on May 3, 2021; People Priority filed its notice of appeal in this Court on June 2, 2021. It is undisputed, therefore, that People Priority learned of the dismissal within the thirty-day time frame to file a motion to reinstate. If it had filed such a motion it could have developed facts not in the record concerning its lack of notice, and it would have afforded the trial court an opportunity to correct any error. In the absence of an effort to reinstate the case, People Priority has waived its due process complaint. See Wright, 137 S.W.3d at 696 (appellant’s failure to bring claims to attention of trial court through motion to reinstate prevented trial court from having opportunity to correct error). We overrule its single issue.” People Priority Sols. v. McIlveen Real Estate & Mgmt., No. 05-21-00409-CV, 2022 Tex. App. LEXIS 6151, at *7-9 (Tex. App.—Dallas Aug. 22, 2022, no pet. h.)
Service: “JDH also contended that vacatur was appropriate because Precision failed to properly serve JDH with its motion to confirm. However, we overrule any argument related to defective service because JDH undisputedly entered a general appearance by failing to file a special appearance, responding to Precision’s motion, and then appearing at the hearing held on both motions. See Tex. R. Civ. P. 120a(1); Nationwide Distrib. Servs., Inc. v. Jones, 496 S.W.3d 221, 224 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (instructing that a party that does not comply with Rule 120a waives its jurisdictional challenge and enters a general appearance). And the trial court apparently agreed, as it would have had no authority to enter its final order without having determined that it had personal jurisdiction over both parties. See Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex. 2010) (“To render a binding judgment, a court must have both subject matter jurisdiction and personal jurisdiction over the parties.”).” Precision-Hayes Int’l, Inc. v. JDH Pac., Inc., No. 02-21-00374-CV, 2022 Tex. App. LEXIS 6734, at *7 n.4 (Tex. App.—Fort Worth Aug. 31, 2022, no pet. h.)
Sleeping Juror: “To preserve for appellate review a complaint regarding a trial court’s handling of a sleeping juror, the complaining party must timely object to the trial court’s procedure. See Tex. R. App. P. 33.1(a)(1); ….Additionally, the filing of a motion for new trial is a prerequisite to raising a complaint on appeal of juror misconduct. See Tex. R. Civ. P. 324(b)(1); ….In this case, when the sleeping juror was brought to the district court’s attention by the guardian ad litem, Father did not move for a mistrial, request questioning of the juror to determine the extent to which the juror had been sleeping or the portions of testimony that the juror might have missed, or object to the district court’s decision not to remove that juror and replace her with the alternate. Additionally, Father failed to file a motion for new trial or other post-judgment motion complaining of the matter. Accordingly, we conclude that Father failed to preserve this complaint for appellate review. See Tex. R. App. P. 33.1(a)(1).” D.H. v. Tex. Dep’t of Family & Protective Servs., No. 03-22-00180-CV, 2022 Tex. App. LEXIS 6489, at *5-6 (Tex. App.—Austin Aug. 30, 2022, no pet. h.)
Summary Judgment: “The record reflects that Burns did not expressly present the necessary-use exception [to the open and obvious defense to a premise liability claim] in response to Schobel’s motion for summary judgment. And because the necessary-use exception was not preserved below, we cannot consider it as grounds for reversal on appeal. See Tex. R. Civ. P. 166a(c); Tex. R. App. P. 33.1(a);” Burns v. Schobel, No. 03-21-00521-CV, 2022 Tex. App. LEXIS 6220, at *9 (Tex. App.—Austin Aug. 23, 2022, no pet. h.)
Summary Judgment: “Fisher argues on appeal that Cooke’s affidavit was not clear, positive, direct or free from contradiction as required for an interested witness. See Tex. R. Civ. P. 166a(c). This is an objection to the form of a summary judgment affidavit and must be raised in the trial court in order to give the opposing party an opportunity to amend. See Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.). Failure to raise the objection and obtain a ruling in the trial court results in waiver of the objection. Id.; see also Tex. R. App. P. 33.1(a); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.) (holding objection that affidavit of interested witness is not clear, positive, direct, or free from contradiction is defect-in-form complaint).” Fisher v. Cooke, No. 05-21-00243-CV, 2022 Tex. App. LEXIS 6160, at *20-21 (Tex. App.—Dallas Aug. 22, 2022, no pet. h.)
Summary Judgment: “Next, Fisher contends Cooke should be judicially estopped because of statements he allegedly made about the Property in prior litigation with a third party. Fisher raised this as an affirmative defense in her original answer and counterclaim. However, she did not raise it or produce evidence on all elements of the defense in response to the motion for partial summary judgment. In order to defeat a motion for summary judgment based on an affirmative defense, a non-movant must produce summary judgment evidence raising a genuine issue of material fact on all elements of the affirmative defense. See Brownlee, 665 S.W.2d at 112; Birenbaum, 971 S.W.2d at 504. Fisher failed to meet her burden to raise a fact issue on her judicial estoppel defense.” Fisher v. Cooke, No. 05-21-00243-CV, 2022 Tex. App. LEXIS 6160, at *20-21 (Tex. App.—Dallas Aug. 22, 2022, no pet. h.)
Summary Judgment: “Response to “the motion” means the motion for summary judgment under consideration, not a motion for summary judgment that was ruled on two months’ previously. Although Wildman stated in her response that she had “raised an affirmative defense involving a fact issue, which has not been fully and fairly litigated and remains pending,” she did not identify that defense. Earlier in that same document, Wildman stated the only defensive issue that remained pending was the ambiguity of the easement agreement. Her response did not identify pending affirmative defenses of limitations, waiver, or abandonment. Because Wildman failed to assert them in her response to the Patrizis’ traditional summary judgment, she may not “assign them as error on appeal.” See id.; see also Tex. R. App. P. 33.1(a).” Wildman v. Patrizi, No. 05-20-00834-CV, 2022 Tex. App. LEXIS 6405, at *37-38 (Tex. App.—Dallas Aug. 25, 2022, no pet. h.)
All for now. Y’all enjoy the weekend.
Yours, Steve Hayes