Error Preservation in Texas Civil Cases, March 13, 2021

March 13, 2021

Dear Friends:

Two uncommon gifts favor us this week–the Texas Supreme Court writes on an error preservation issue, and one court addressed whether a complaint was sufficiently specific.

Table of Contents

As the Supreme Court reminded us this week, the lack of an appropriate and complete jurat on an affidavit is a complaint as to form, which you must raise in the trial court

Affidavit

Very seldom do courts address whether a complaint was sufficiently specific–but here is one opinion which does

Public Policy

This long, but interesting, blurb covers a multitude of error preservation elements in deciding that one does not have to object in the trial court to void findings and conclusions, and in holding that the party sufficiently and timely objected to the findings and conclusions, in any event

Order/Findings and Conclusions

The Blurbs

As the Supreme Court reminded us this week, the lack of an appropriate and complete jurat on an affidavit is a complaint as to form, which you must raise in the trial court.

Affidavit: “The court of appeals assumed without deciding that Angel’s affidavit was not hearsay but affirmed the trial court on the ground that it could have excluded the affidavit because it was not properly sworn. 589 S.W.3d at 273. The appellate court reasoned that the affidavit was insufficient because the certification by the officer administering the oath was in Spanish and Angel provided no translation. Id.

An affidavit is “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Tex. Gov’t Code § 312.011(1). Oaths made outside the United States are valid if “administered and a certificate of fact given by . . . a notary public.” Id. § 602.004. When providing an oath in a foreign language, the party should also tender a translated copy of the oath certificate. See Tex. R. Evid. 1009(a). This certification and its accompanying translated copy constitute a jurat. Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 316 (Tex. 2012) (per curiam) (“A jurat is a certification by an authorized officer, stating that the writing was sworn to before the officer.”). And “[w]hen a purported affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the opposing party must object to this error, thereby giving the litigant a chance to correct the error.” Id. at 317 (emphasis added). Such a problem in form, not substance, must be objected to in the trial court or else it is waived. See id.; see also Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam). Angelina did not raise this issue in the trial court nor present it to the court of appeals. The appellate court therefore erred in affirming based on a formal defect that was not preserved for review. 589 S.W.3d at 273.” In re Sandoval, No. 19-1032, 2021 Tex. LEXIS 207, at *7-9 (Mar. 12, 2021)

Very seldom do courts address whether a complaint was sufficiently specific–but here is one opinion which does.

Public Policy: “To preserve an issue for appellate review, “the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A). The complaint must be specific enough to “allow[] the trial judge to make an informed ruling.” Campbell v. State, 85 S.W.3d 176, 185 (Tex. 2002) (quoting McDaniel v. Yarbrough, 898 S.W.2d 251, 252 (Tex. 1995)).

Nwakanma did not assert that the Settlement Agreement violates public policy in his answer or any other pretrial pleading. At trial, Nwakanma did briefly argue, in his opening statement, that the evidence would show the Settlement Agreement “was against public policy.” But he didn’t explain why the Settlement Agreement violated public policy or how the evidence would make such a showing. The evidence Nwakanma presented at trial bore no obvious relationship to the issue, and Nwakanma didn’t bother bringing it up again in his closing argument. In his motion for new trial, Nwakanma argued that the “subject matter and terms of the agreement violate public policy.” But he again failed to specify why. At no point in the proceedings below did he ever mention the Texas or Kansas Disciplinary Rules of Professional Conduct, much less assert that the dismissal and notice requirements of the Settlement Agreement conflict with these rules’ intended purpose.

We hold that Nwakanma’s general statements that the Settlement Agreement violates public policy were insufficiently specific to allow the trial court to make an informed ruling on whether the Settlement Agreement violates public policy by conflicting with [*17] the Texas and Kansas Disciplinary Rules of Professional Conduct.” Nwakanma v. Imo, No. 01-20-00090-CV, 2021 Tex. App. LEXIS 1819, at *15-17 (Tex. App.—Houston [1st Dist.] Mar. 11, 2021)

This long, but interesting, blurb covers a multitude of error preservation elements in deciding that one does not have to object in the trial court to void findings and conclusions, and in holding that the party sufficiently and timely objected to the findings and conclusions, in any event:

Order/Findings and Conclusions: “Before discussing Judge Willis’s authority under the circumstances, we consider Mother’s argument that Father failed to preserve error. Specifically, Mother argues that Father did not preserve error on his second and third issues because he failed to (1) submit a proposed order in response to Mother’s motions to sign, (2) request that either motion be heard by Judge Skemp, or (3) object to Judge Willis hearing either motion. Mother cites rule 33.1 in support of her position. See Tex. R. App. P. 33.1.

Father disputes Mother’s arguments. As to Mother’s first argument, Father notes that his April 21, 2019 letter to the trial court contained Father’s suggested revisions to the proposed order that Mother submitted to the trial court.

As to Mother’s second and third arguments, Father cites Ad Villarai, LLC v. Pak, 519 S.W.3d 132 (Tex. 2017), in arguing that he was not required to preserve error under the circumstances. In Pak, when considering error preservation in connection with void [*10] findings of fact and conclusions of law, the court stated that Pak “was under no obligation to object to the trial court’s void actions.” See id. at 137.  If Judge Willis’s memorandum opinion, final order, and findings of fact and conclusions of law were void—and, as we conclude below, they were—Father was under no obligation to object to Judge Willis’s void actions because “[v]oid orders are not waivable on direct review.” Id. (citing Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427, 429 (Tex. 1932)).

Further, even if we assume Father was required to preserve error, the record reflects that he did so. Generally, an objection must be made “timely” in the trial court to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a)(1). A “timely” objection is “one ‘interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error.'” Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.—Dallas 2015, pet. denied) (quoting Driver v. Conley, 320 S.W.3d 516, 518 n.3 (Tex. App.—Texarkana 2010, pet. denied)). The purpose of rule 33.1(a) is “to ensure that the trial court has had the opportunity to rule on matters for which parties later seek appellate review.” Odom v. Clark, 215 S.W.3d 571, 574 (Tex. App.—Tyler 2007, pet. denied).

In this case, the trial court had the opportunity to rule on and to correct the error Father alleges here. In the April 2019 hearing, both sides argued their positions on the proposed order Mother submitted to the court with her first motion to sign, and in [*11] connection with that hearing, Father’s counsel submitted a letter to the court with requested revisions that Father’s counsel argued were consistent with Judge Skemp’s judgment. After that hearing, Judge Willis entered her memorandum opinion which differed from Judge Skemp’s judgment, and Mother then filed a second motion to sign with a new proposed order that was consistent with Judge Willis’s memorandum opinion. The court heard that motion in May 2019, and in that hearing, Father’s counsel objected to the new proposed final order Mother submitted on the grounds that differences existed between Judge Skemp’s judgment and Mother’s most recent proposed final order, which Judge Willis signed at the conclusion of the hearing.

The May 2019 hearing transcript reflects not only that Mother’s counsel was aware of Father’s objection to the memorandum opinion and new proposed final order, but that Mother’s counsel responded to Father’s objection, acknowledged that differences existed, and argued that, despite those differences, Judge Willis had the power to sign the memorandum opinion and the proposed final order.

The parties’ central dispute in this appeal is whether Judge Willis had the power to issue the memorandum opinion and final order she issued. The same issue arose in the May 2019 hearing, when the parties’ counsel had a lengthy exchange on Judge Willis’s authority because of Judge Skemp’s earlier judgment and its differences from the proposed final order being discussed in the hearing. During that exchange, Mother’s counsel acknowledged that Judge Willis’s memorandum opinion served as the basis for the proposed final order at issue and acknowledged that it “differ[ed] greatly” from Judge Skemp’s judgment.

Thus, before Judge Willis signed the final order, Father’s counsel argued that Judge Skemp had rendered judgment, and it was undisputed that significant differences existed between his judgment and Judge Willis’s memorandum opinion and the proposed final order. For some differences, such with the permitted location for A.B.P.’s primary residence, Father’s counsel argued that Judge Willis should order a scope consistent with Judge Skemp’s ruling. Even if we assume Father was required to preserve error, we believe Father satisfied the requirements of rule 33.1 by giving Judge Willis the opportunity to correct her error. See Tex. R. App. P. 33.1(a)(1);” In the Interest of A.B.P., No. 05-19-01392-CV, 2021 Tex. App. LEXIS 1708, at *9 (Tex. App.—Dallas Mar. 8, 2021) (footnotes omitted)

There were also several cases in which courts held that a party failed to preserve a complaint by virtue of failing to assert it in the trial court.

All for now.  Y’all have a great weekend, and stay safe and well.

Yours, Steve Hayes

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

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