Error Preservation in Texas Civil Cases, March 21, 2021

March 21, 2021

Dear Friends:

Table of Contents

An interesting twist on governmental immunity, as a subset of subject matter jurisdiction: immunity is a complaint that can first be raised on appeal–if the party suing the government has had an opportunity to develop the record about the statute granting immunity

If you want to challenge the jury verdict, don’t file an motion for entry of judgment on the verdict without saying you intend to appeal it (and everything else Litton and subsequent cases require)

Judgment

A ruling may be implicit–but it is always best to get an express ruling, just to avoid any question on the issue

Continuance

Your opponent in a bench trial can first present a complaint about legal or factual insufficiency on appeal

Legal and Factual Sufficiency

The Blurbs

Here is an interesting twist on governmental immunity, as a subset of subject matter jurisdiction; immunity is a complaint that can first be raised on appeal–if the party suing the government has had an opportunity to develop the record about the statute granting immunity.

Immunity: “In its second issue, the City argues that Realme’s suit is barred by immunity under the Recreational Use Statute, which “limits the liability of all landowners—public and private—who permit others to use their property for activities the statute defines as ‘recreation.'” Univ. of Tex. v. Garner, 595 S.W.3d 645, 648 (Tex. 2019); see Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-.002. The City did not make this argument in its plea to the jurisdiction or otherwise raise this argument in the trial court.

The City urges us to address its Recreational Use Statute argument because a governmental unit may raise immunity, a jurisdictional argument, for the first time on appeal. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). However, to properly raise a jurisdictional argument for the first time on appeal, the governmental unit “has the burden to show either that the plaintiff failed to show jurisdiction despite having had full and fair opportunity in the trial court to develop the record and amend the pleadings; or if such opportunity was not given, that the plaintiff would be unable to show the existence of jurisdiction if the cause were remanded to the trial court and such opportunity afforded.” Id. at 96.

Here, Realme did [*17] not have the opportunity to conduct discovery and develop the record with regard to the Recreational Use Statute, and the City does not show that she did. In her appellate brief, Realme expressly asks us to defer ruling on the issue of subject matter jurisdiction until after she can conduct proper discovery. Because Realme has not had the opportunity to develop the record regarding the Recreational Use Statute, we cannot address the City’s second issue. See id. at 100 (remanding to the trial court for further proceedings when the governmental unit failed to show that the plaintiffs had a full and fair opportunity to develop the record as to jurisdiction or that the plaintiffs would be unable to show jurisdiction).” City of San Antonio v. Realme, No. 04-20-00119-CV, 2021 Tex. App. LEXIS 1972, at *16-17 (Tex. App.—San Antonio Mar. 17, 2021)

If you want to challenge the jury verdict, don’t file an motion for entry of judgment on the verdict without saying you intend to appeal it (and everything else Litton and subsequent cases require).

Judgment: “When a party moves for judgment on the verdict without any reservation of rights or objections, the party is affirming that the jury’s findings find support in the evidence. Russell v. Dunn Equipment, Inc., 712 S.W.2d 542, 545 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.). When a party moves for judgment on the jury verdict and the court renders judgment as requested, the party is barred from subsequently complaining on appeal that the jury’s findings have no support in the evidence or are [*23] factually insufficient. Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 322 (Tex. 1984). If a party desires to obtain a judgment yet reserve the right to complain on appeal, it must expressly say so in its motion. First Nat. Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989).

At oral argument, LaTour contended it had not waived its cross-complaint because it filed a motion for new trial after the judgment was signed. We hold that without conditional language in the motion to enter judgment that indicated any objection to the verdict, the district court could have only understood LaTour to be agreeing with the verdict at the time the judgment was signed. In Litton, the defendant in a suit alleging violations of the Texas Deceptive Trade Practices Act moved for the trial court to render judgment on the verdict for the actual damages found by the jury. 668 S.W.2d at 321. The motion did not, however, discuss the jury’s award of exemplary damages. Litton urged that it had not waived its right to complain about the judgment because it filed a brief challenging the adverse verdict. The Supreme Court held that “[b]y filing its motion that the trial court render judgment on the verdict for the actual damages found by the jury, Litton could not, on appeal, take a position inconsistent with that part of the judgment.” Id. at 321-22. Because Litton [*24] had not requested rendition of judgment on the award of exemplary damages, the high court held that complaint was not waived.

Here, we hold that, consistent with Litton, LaTour failed to sufficiently apprise the district court of its right to complain on appeal when it filed the motion to render judgment on the verdict. We therefore hold that LaTour has waived its ability to complain that the jury’s adverse findings were unsupported by sufficient evidence. LaTour’s second and third issues are overruled.” 2027 S. Austin St., LLC v. Latour Condos., Inc., No. 07-19-00395-CV, 2021 Tex. App. LEXIS 2005, at *22-24 (Tex. App.—Amarillo Mar. 17, 2021)

A ruling may be implicit–but it is always best to get an express ruling, just to avoid any question on the issue.

Continuance: “Here, by proceeding with the summary judgment submission and granting summary judgment, the trial court implicitly denied Intertek’s request for a continuance and motion to compel. See Suniverse, LLC v. Universal Am. Mortg. Co., LLC, No. 09-19-00090-CV, 2021 Tex. App. LEXIS 1240, 2021 WL 632603, at *8 (Tex. App.—Beaumont Feb. 18, 2021, [*28] no pet. h.) (mem. op.) (record supported “inference that, by proceeding with the submission of the motions for summary judgment as scheduled and by granting the motions for summary judgment, the trial court necessarily implicitly denied Appellant’s request for a continuance and motion to compel”).” Intertek Asset Integrity Mgmt. v. Dirksen, No. 12-20-00060-CV, 2021 Tex. App. LEXIS 2112, at *27-28 (Tex. App.—Tyler Mar. 18, 2021)

Your opponent in a bench trial can first present a complaint about legal or factual insufficiency on appeal.

Legal and Factual Sufficiency: “Generally, a party must preserve error as a prerequisite to presenting a complaint for appellate review. See Tex. R. App. 33.1(a). But, in a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence may be made for the first time on appeal in the complaining party’s brief. Tex. R. App. 33.1(d). The co-trustees contend that their complaints fall within this category of error for which preservation is not required. We agree.

We must construe the brief liberally and reasonably so the right to appeal is not lost by waiver. Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 732 (Tex. 2020). We hesitate to resolve cases based on procedural defects and instead endeavor to resolve cases on the merits. Id. We [*6] look to the wording of the issues and the arguments under each heading to assess the intent of the parties. See id.

The co-trustees argue in their brief that there is “no legal or factual support” and the “facts do not support” the anti-suit injunction. The co-trustees contend that there is “no evidence” of a probable, imminent, and irreparable harm. The co-trustees detail how the evidence presented at the temporary injunction hearing does not support the trial court’s findings or the legal requirements for a temporary injunction. We construe these arguments as challenges to the sufficiency of the evidence to support the trial court’s temporary injunction. See id.” Marshall v. Marshall, No. 14-17-00930-CV, 2021 Tex. App. LEXIS 1949, at *5-6 (Tex. App.—Houston [14th Dist.] Mar. 16, 2021)

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

Yours, Steve Hayes

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

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