Error Preservation in Texas Civil Cases, March 16, 2020

March 16, 2020

Dear All:

I think I’m almost back on track. I hope this finds all of you in fine fettle and plugging along.

Table of Contents

Two Supreme Court Error Preservation Cases

The Court held that the objection at trial about a judge testifying was sufficiently specific, when it “expressed the basic rationale” for the complaint, even if it did not cite the pertinent case

The Supreme Court held that a party preserved a complaint it made in connection with a motion to designate a potentially responsible third party

The complaint you assert on appeal must be the complaint you made at trial

Presence at trial

The Blurbs

Two Supreme Court Error Preservation Cases:

Here is one from the Supreme Court a few months back that I think I missed–I cannot find it in my spreadsheet, and I thank Lisa Hobbs for mentioning it in the most recent Supreme Court Update webcast–the Court held that the objection at trial was sufficiently specific, when it “expressed the basic rationale” for the complaint, even if it did not cite the pertinent case:

Judge (testimony): “In this Court, the CLD contends that Joachim does not require exclusion of Judge Isgur’s testimony. At the outset, the [*782] CLD argues that Cantu did not specifically invoke Joachim in the trial court and so failed to preserve the argument. But Cantu “was not required . . . at trial to rely on precisely the same case law . . . [the court of appeals found] persuasive.” [**5] Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018). Among his laundry list of objections to Judge Isgur’s testimony, Cantu complained that it was improper expert testimony by a judge, that “the jury is supposed to hear what happened,” and, most importantly, that it is “not for the judge to tell them how to vote.” This line of argument is very similar to the concerns about judicial testimony animating Joachim. See 815 S.W.2d at 237. Cantu’s trial-court arguments expressed the basic rationale for the objection without citing the case law. This does not prevent him from relying on the case law on appeal. “We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.” Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014).” Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 781-82 (Tex. 2019)

The Supreme Court held that a party preserved a complaint it made in connection with a motion to designate a potentially responsible third party. However, the holding is not terribly illuminating, since the Court failed to discuss what the party said in the trial court to preserve the complaint, and failed to invoke Rule 33.1 in its discussion:

Potentially Responsible Third Party: “Finally, we reject Covarrubias’s arguments that (1) Mobile Mini failed to preserve its claim that Nolana’s summary judgment was granted only on limitations grounds by failing to make that argument in the trial court and (2) mandamus relief should be denied because Mobile Mini waited three months after the trial court denied its motion to designate to seek mandamus relief in the court of appeals. A three-month delay does not preclude mandamus relief under the circumstances presented, and Mobile Mini’s response to Covarrubias’s and Nolana’s objections adequately preserved the arguments presented here.” In re Mobile Mini, Inc., No. 18-1200, 2020 Tex. LEXIS 186, at *13 (Mar. 13, 2020)

The complaint you assert on appeal must be the complaint you made at trial:

Presence at trial: “Finally, even though J.B. argues that the trial court erred in waiving his appearance at the hearing on the State’s petition because Texas Rule of Civil Procedure 267 provides that “in a civil trial, a party is entitled to be present during the presentation of evidence,” we note that J.B.’s counsel did not assert in the trial court that J.B.’s presence in the courtroom was required under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 267 (upon request of either party, witnesses [*9] must be sworn and removed from courtroom to place where they cannot hear testimony of any other witness, but party, “who is a natural person,” may not be excluded). Instead, J.B.’s counsel requested that J.B. be present during the hearing on the State’s petition “based on his right to confront the witnesses against him” “under the [f]ederal and [s]tate constitutions.” And J.B.’s counsel requested an “opportunity to call [J.B.] as a witness” based on his “Article I, [s]ection 10[] . . . right to be heard.” See U.S. Const. amend. VI; Tex. Const. art. I, § 10. . . . An objection stating one legal basis may not be used to support a different legal theory on appeal. . . . Because J.B.’s counsel did not assert in the trial court that J.B.’s presence in the courtroom was required under Texas Rule of Civil Procedure 267, we hold that he has not preserved his argument for appellate review. See Tex. R. App. P. 33.1(a); cf. In re K.C., 563 S.W.3d at 398 (rejecting appellant’s argument based on Texas Rule of Civil Procedure 267 on merits).” In the Interest of J.B., No. 01-19-00037-CV, 2020 Tex. App. LEXIS 2155, at *8 (Tex. App.—Houston [1st Dist.] Mar. 12, 2020)

And there was a collection of cases in which parties failed to preserve error because they did not raise their complaint in the trial court.

I hope this helps. Y’all take care out there.

Yours,

Steve Hayes

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

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