Error Preservation in Texas Civil Cases, March 22, 2020

March 22, 2020

Dear Friends:

I hope everyone is doing well, and taking care of themselves.  The courts of appeals continue to do crank out the opinions, and we have several error preservation decisions this week to show for their good efforts.

Table of Contents

There are a couple of jury charge cases in which the courts held that a party properly preserved its complaint

You have to bring your complaint to the trial court’s attention, and get a ruling on it–and getting an express ruling is the best way to show you did bring it to the trial court’s attention


Your complaint must be timely

Conflicting Jury Answers

You have to comply with other pertinent rules

Evidence (Settlement/Bill of Review)

The Blurbs

Here are a couple of jury charge cases in which the courts held that a party properly preserved its complaint :

Jury Charge: “Anderson asserts that Durant failed to raise this argument in the trial court and has changed his argument from that raised on original submission. In the trial court, Durant objected to the misrepresentation definition “with respect to statements of opinion . . . because there’s no pleadings or evidence to support a statements of opinion theory in this case.” On original submission to this court, Durant argued that the definition of misrepresentation improperly “instruct[ed] the jury to consider an invalid theory or basis of fraud” by including misrepresentations based on statements of opinion. Although Durant on remand has honed his argument and cited additional authorities, he sufficiently raised the definitional issue to the trial court and in this court. See Tex. R. App. P. 33.1(a), 38.9; Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 782 (Tex. 2019) (per curiam) (“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.”).” Durant v. Anderson, No. 02-14-00283-CV, 2020 Tex. App. LEXIS 2319, at *17 n.6 (Tex. App.—Fort Worth Mar. 19, 2020)

Jury Charge: “Additionally, Colbert properly preserved error regarding the trial court’s wrongful refusal to include the ordinary negligence question in the jury charge. Colbert objected during the charge conference that the court’s submission failed to include an ordinary negligence question. Colbert also submitted an ordinary negligence question in “substantially correct wording” as required by Rule 278. See Tex. R. Civ. P. 278. Specifically, Colbert’s proposed question was “Did the negligence, if any, of those named below proximately cause the occurrence in question?” See State Bar of Tex., Texas Pattern Jury Charges—General Negligence PJC 4.1 (2018).” Colbert v. Smith, No. 11-18-00063-CV, 2020 Tex. App. LEXIS 2314, at *14 (Tex. App.—Eastland Mar. 19, 2020)

You have to bring your complaint to the trial court’s attention, and get a ruling on it–and getting an express ruling is the best way to show you did bring it to the trial court’s attention:

Continuance: “Approximately a month after the hearing, on September 18, 2017, Wulchin Land filed a joint response to Forehand and Schneider’s motions for summary judgment, attaching 521 pages of evidence. Later that same day, Wulchin Land filed a verified “Motion for Continuance on No-Evidence Motion for Summary Judgment of Schneider & McWilliams and Thomas Forehand as to Damages,” mirroring the arguments raised in its prior motion to continue Sartori’s no-evidence motion. There is no indication in the record that this motion was set for a hearing. Twenty-four [*26] days later, on October 12, 2017, the trial court granted Forehand and Schneider’s summary judgment motions by submission.

In order to preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely motion with sufficient specificity and the trial court expressly or implicitly ruled on the motion or refused to rule on the motion, and the complaining party objected to the refusal. TEX. R. APP. P. 33.1(a). Wulchin Land argues that both motions were implicitly overruled when the trial court granted Sartori, Schneider, and Forehand’s motions for summary judgment. See Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 114-15 (Tex. App.—Waco 1999, no pet.) (holding that trial court implicitly overruled motion for continuance filed two days before summary judgment hearing by granting summary judgment); but see Hightower v. Baylor Univ. Med. Ctr., 251 S.W.3d 218, 224-25 (Tex. App.—Dallas 2008, pet. struck) (holding that appellant did not preserve error because he failed to obtain an explicit ruling on motion for continuance); Dart v. Balaam, 953 S.W.2d 478, 483 (Tex. App.—Fort Worth 1997, no pet.) (same).

Merely filing a motion is not sufficient to preserve an error; the movant must bring the motion to the trial court’s attention, thereby giving the court an opportunity to rule on the motion. In re Purported Lien or Claim Against Collin Cty. Clerk Taylor, 219 S.W.3d 620, 623 (Tex. App.—Dallas 2007, pet. denied); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding); Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston [1st Dist.] 1994, writ denied). It is self-evident that a trial court cannot abuse its discretion if it was not called upon to exercise its discretion [*27] in the first instance.

We disagree that Wulchin Land’s motions to continue were implicitly overruled in this case because there is no indication from the record that the trial court was aware of their existence. See In re Purported Lien, 219 S.W.3d at 623; In re Davidson, 153 S.W.3d at 491; Sebek, 892 S.W.2d at 49. It is always incumbent upon a movant to bring its motions to the trial court’s attention or risk waiving error, but that is especially true in a case like this with numerous parties and filings.” Wulchin Land, L.L.C. v. Ellis, No. 13-18-00156-CV, 2020 Tex. App. LEXIS 2275, at *25-27 (Tex. App.—Corpus Christi Mar. 19, 2020)

Your complaint must be timely:

Conflicting Jury Answers: “ Generally, parties must allow a trial court the opportunity to address whether a jury has returned a verdict that contains conflicting answers to the issues before the party may complain about the alleged conflict in its appeal. But Sims waited to raise the alleged conflict until he filed a post-verdict motion, and thereby waived his right to complain about any alleged conflict in his appeal. Sims failed to preserve his issue three complaints for appellate review. Issue three is overruled.” Critical Path Res., Inc. v. Huntsman Int’l, LLC, No. 09-17-00497-CV, 2020 Tex. App. LEXIS 2310, at *44 (Tex. App.—Beaumont Mar. 19, 2020)

NOTE: In USAA Lloyd’s Co. v. Menchaca, 545 S.W.3d 479, 526 (2018), a plurality dissenting opinion from the Texas Supreme Court held that the “absence of . . . an objection [to conflicting jury answers before the trial court dismisses the jury] . . . should not prohibit [an appellate court] from reaching the issue of irreconcilable conflicts in jury findings.” The portion of the Court’s opinion dealing with that issue, which drew the support of fewer justices than the dissenting plurality, held that parties had to complain about conflicting jury answers before the jury was dismissed. It is very confusing–though the Court’s main opinion contains a really full discussion of lots of courts of appeals decisions supporting its position. You will have to read Menchaca very closely to determine the extent to which you feel comfortable not objecting to conflicting jury answers before the jury is excused. I would not feel comfortable doing so.

You have to comply with other pertinent rules:

Evidence (Settlement/Bill of Review): “Appellate courts review complaints about rulings [*47] excluding evidence using an abuse of discretion standard of review. On appeal, the court reviewing the trial court’s ruling must decide whether the error “probably caused the rendition of an improper judgment[.]” Turning to the ruling on excluding the testimony about Murphree’s settlement, we cannot say the fact Murphree and Huntsman settled gave Murphree any interest in Huntsman’s remaining claims. Without a bill, Sims cannot show the testimony was even relevant to his claim that Murphree was biased in Huntsman’s favor given whatever might be in the settlement’s terms. Generally, evidence about the fact parties have settled claims is not relevant to any of the other claims in a trial. Here, to preserve error, Sims’s bill should have included a copy of the settlement agreement and the questions and Murphree’s answers about the settlement. With a bill, we could determine whether the evidence was relevant and whether the trial court abused its discretion by excluding it in the trial. On this record, we cannot say the trial court abused its discretion by refusing to allow Murphree to be questioned about the settlement. We reach the same conclusion on the evidence Sims wanted to [*48] offer about the circumstances of other employees involved in other insider deals. We conclude Sims failed to file a bill of review to show what the evidence he wanted to offer would have shown. Because the arguments Sims makes to support his fourth issue lack merit, the issue is overruled.” Critical Path Res., Inc. v. Huntsman Int’l, LLC, No. 09-17-00497-CV, 2020 Tex. App. LEXIS 2310, at *46-48 (Tex. App.-Beaumont Mar. 19, 2020)

Pleadings: “Because Mother did not file written special exceptions alleging a defect in the Department’s pleadings, she has waived her complaint about the sufficiency of the Department’s pleadings. See Tex. R. Civ. P. 90 (requiring a party to specially except to pleading defects before the judgment is signed); Tex. R. App. P. 33.1(a) (providing complaints not timely raised in the trial court are not preserved for appellate review).” In the Interest of N.A.V., No. 04-19-00646-CV, 2020 Tex. App. LEXIS 2204, at *9 n.3 (Tex. App.—San Antonio Mar. 17, 2020)

There were then some cases which held that parties failed to preserve error because they did not raise their complaints in the trial court.

All for now.  Everyone stay safe and stay well.


Steve Hayes;


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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