Error Preservation in Texas Civil Cases, March 11, 2023

March 11, 2023

Dear Folks:

Table of Contents

Lack of subject matter jurisdiction can first be raised on appeal

A complaint that an affidavit is conclusory can first be raised on appeal

You have to get a ruling, which can be express or implicit, and can take many forms

Continuance

Your complaint must be timely

Administrative Law

You have to comply other pertinent rules

Summary Judgment

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

Affidavit
Attorney Fees
Contract
Expert Report
Evidence
Summary Judgment

Blurbs

Lack of subject matter jurisdiction can first be raised on appeal:

Government Immunity: “Tips Properties contends that TxDOT waived any jurisdictional challenge as to Tips Properties’ request for declaratory relief by not presenting it to the trial court; however, Tips Properties’ waiver contention is unpersuasive because appellate courts have been directed to address such additional grounds even when raised for the first time in an interlocutory appeal.” Tex. DOT v. Robert Dixon Tips Props., No. 04-21-00430-CV, 2023 Tex. App. LEXIS 1479, at *16 n.9 (Tex. App.—San Antonio Mar. 8, 2023, no pet. h.)

A complaint that an affidavit is conclusory can first be raised on appeal:

Affidavit: “Because Slack’s objection that the affidavit is conclusory raises a defect of substance, she did not waive it by failing to respond to the motion for summary judgment.” Slack v. Shreve, No. 12-22-00024-CV, 2023 Tex. App. LEXIS 1499, at *27 (Tex. App.—Tyler Mar. 8, 2023, no pet. h.)

You have to get a ruling, which can be express or implicit, and can take many forms:

Continuance: “Davis did not oppose Jones’s application for legislative continuance in the trial court and does not challenge Jones’s entitlement to one in this original [*4] proceeding. Instead, Davis argues this Court is without jurisdiction because the trial court has not yet ruled on Jones’s application. We disagree. Rather than signing the proposed order granting the legislative continuance, the trial court added text at the top stating “DISAPPROVED: CONFERENCE SET FOR JANUARY 24.” The record contains a corresponding docket entry of “Proposed Order Denied.” Even if the trial court did not explicitly deny Jones’s application, it implicitly did so, making Jones’s complaint ripe for appellate review. TEX. R. APP. P. 33.1(a)(2)(A);” In re Jones, No. 05-23-00070-CV, 2023 Tex. App. LEXIS 1587, at *3-4 (Tex. App.—Dallas Mar. 10, 2023, no pet. h.)

Your complaint must be timely:

Administrative Law: “Here, after the ALJ entered its order authorizing DPS “to suspend or deny [Cuellar’s] driving privileges for” ninety days, Cuellar appealed the ALJ’s ruling to the county court. In the county court, Cuellar argued that the ALJ erred in suspending his driver’s license because Officer Greig’s report, which the ALJ admitted into evidence at administrative hearing, “was not sworn to” by Greig and thus inadmissible;13 “it[] [was] a bad stop” of Cuellar by Greig; and because Cuellar was not driving a commercial motor vehicle when he was arrested for the offense of driving while intoxicated, DPS should not have “t[aken] his commercial driver’s license for one year.” But Cuellar did not raise those arguments before the ALJ at the administrative hearing, and, thus, he waived his arguments for consideration by the county court on appeal.” Tex. Dep’t of Pub. Safety v. Cuellar, No. 01-22-00085-CV, 2023 Tex. App. LEXIS 1461, at *10 (Tex. App.—Houston [1st Dist.] Mar. 7, 2023, no pet. h.)

You have to comply other pertinent rules:

Summary Judgment: “On appeal, Lil C argues that the pooling provision in the subject lease did not extend the reservation in the Hopper [*24] Deed because the pooling performed under the lease exceeded the limitations and regulations of the Texas Railroad Commission. However, Lil C did not raise this argument at the trial court, and thus, this argument cannot serve as a basis for summary judgment. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 166a(c).” Lil C Ranch, LLC v. Ridgefield Eagle Ford Minerals, LLC, No. 14-21-00285-CV, 2023 Tex. App. LEXIS 1442, at *23-24 (Tex. App.—Houston [14th Dist.] Mar. 7, 2023, no pet. h.)

All for now.  Y’all stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436
Email: shayes@stevehayeslaw.com

Meetings with Mr. Hayes will be by appointment only.

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