Error Preservation in Texas Civil Cases, March 3, 2018

Dear All:

Table of Contents

• Some things can be raised for the first time on appeal–like whether a court lacked subject matter jurisdiction because of an improper severance:
• Here are a few cases–including a Supreme Court opinion involving an evidentiary issue–in which parties preserved their complaints–one preserved a no evidence complaint through a motion jnov, and one preserved an argument that the judgment improperly excluded post-judgment interest by filing a motion for entry of judgment with an attached judgment which included such interest:
• You have to comply with the pertinent rules:
• Your complaint must be timely, and the record has to reveal the basis for your complaint:
• You have to obtain a ruling-and you cannot count on the implied ruling safe harbor of Rule 33.1 coming into play:
• Your objection on appeal must comport with the objection made at trial:
• Your complaint must be sufficiently specific:

The Supreme Court weighed in on error preservation a couple of times in the last two weeks.

In one case, the Supreme Court reminded us that some things can be raised for the first time on appeal–like whether a court lacked subject matter jurisdiction because of an improper severance:

 

• Jurisdiction: “Morello next argues that the trial court’s improper severance of thecase against him from the one against White Lion deprived the court of appeals of jurisdiction. Morello also asserts that the severance resulted in two judgments based on identical theories of liability and facts and that such result violates his constitutional rights to equal protection and due course of law by imposing excessive fines leading to, essentially, a double recovery for the State. Although the court of appeals did not reach these issues, in the interest of judicial economy, we will consider them instead of remanding them to the court of appeals. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012) (“The court of appeals did not address the Hospital’s claim of immunity. Rather than remanding the case to the court of appeals for it to do so, however, we address the issue in the interest of judicial economy.”). In regard to Morello’s first [*18] contention—that improper severance deprived the court of appeals of jurisdiction to consider his appeal—he references Dalisa, Inc. v. Bradford, 81 S.W.3d 876 (Tex. App.—Austin 2002, no pet.). There, the court of appeals held that because the claims had been improperly severed, the resulting judgments were interlocutory and not final. Id. at 882. Because the appeal was from an interlocutory order, the court dismissed it for want of jurisdiction. Id. The State first claims Morello waived any objection to the severance by failing to assert the objection below. But challenges to lack of subject matter jurisdiction may be raised for the first time on appeal.  Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).” State v. Morello, No. 16-0457, 2018 Tex. LEXIS 169, at *17-18 (Feb. 23, 2018)

Here are a few cases–including a Supreme Court opinion involving an evidentiary issue–in which parties preserved their complaints–one preserved a no evidence complaint through a motion jnov, and one preserved an argument that the judgment improperly excluded post-judgment interest by filing a motion for entry of judgment with an attached judgment which included such interest:

 

• Evidence: “At trial, Diamond offered the video on three separate occasions, both for impeachment and as substantive evidence regarding Williams’s pain and physical abilities. N. 5 N. 5. Diamond’s arguments in this appeal focus on the substantive as opposed to impeachment value of the video. Williams argues Diamond offered the video at trial only for impeachment purposes and thus has not preserved the issue presented. The context, including reference back to limine arguments, shows Diamond offered the evidence at trial for both purposes.” Diamond Offshore Servs. v. Williams, No. 16-0434, 2018 Tex. LEXIS 186, at *7 n.5 (Mar. 2, 2018)
• Post-judgment interest: “METRO’s argument that Brooks waived her claim for post-judgment interest is without merit. As an initial matter, post-judgment interest accrues automatically. Hot-Hed, Inc., 333 S.W.3d at 735. However, Brooks preserved her complaint that the judgment improperly excluded post-judgment interest by filing a motion for entry of [*14] judgment with an attached proposed judgment that included an award of post-judgment interest.”  Transit Auth. of Harris Cty. v. Brooks, No. 01-16-00158-CV, 2018 Tex. App. LEXIS 1418, at *13-14 (App.—Houston [1st Dist.] Feb. 22, 2018)
• Legal Insufficiency: “Sunesara contends that Sohani and Virani failed to preserve for appellate review their complaint that no written record exists demonstrating Sunesara’s contributions to the LLCs or demonstrating that he is entitled to one-third of the profits because they did not object to the jury charge and they did not move for a directed verdict. . . . Here, the jury determined that Sunesara was a member of the LLCs and entitled to one-third of the profits from each of the LLCs. Sohani and Virani moved for JNOV, asserting that the evidence conclusively negated Sunesara’s right to a judgment declaring him entitled to one-third of the profits of the LLCs. They argued that Sunesara failed to present any evidence that the books and records of the LLCs showed that he was entitled to one-third of the profits, as required by Business Organizations code section 101.201 to establish a right to profits. Sohani and Virani thus presented a legal argument that would negate Sunesara’s right to a declaration that he was entitled to one-third of the profits of the LLCs. . . . By raising this argument in a motion for JNOV, Sohani and Virani properly preserved this complaint for appellate review.” Sohani v. Sunesara, No. 01-16-00460-CV, 2018 Tex. App. LEXIS 1587, at *27-28 (App.—Houston [1st Dist.] Mar. 1, 2018)

You have to comply with the pertinent rules:

 

• Affirmative Defense: “Foster next argues that the evidence is insufficient to show that Chase disbursed the loan funds because there is not a cancelled check in evidence. As discussed above, the evidence shows that Chase disbursed $25,000.00 on Foster’s behalf. To the extent that Foster claims a failure of consideration, such is an affirmative defense that is waived if not pled. SeeTex. R. App. P. 33.1; TEX. R. CIV. P. 94 (providing that “failure of consideration” constitutes affirmative defense that must be specifically pleaded). Because Foster did [*27] not plead an affirmative defense of failure of consideration, the issue is waived. DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34, 48 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that affirmative defenses not affirmatively pled are waived).” Foster v. Nat’l Collegiate Student Loan Tr.2007-4, No. 01-17-00253-CV, 2018 Tex. App. LEXIS 1606, at *26-27 (App.—Houston [1st Dist.] Mar. 1, 2018)
• Jury Charge: “Sarfo, however, failed to preserve this issue for our review. “Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.” Tex. R. Civ. P. 278; see also Tex. R. App. P. 33.1(a), 44.1(a)(1). “A request by either party for any questions, definitions, or instructions shall be made separate and apart from such party’s objections to the court’s charge.” Tex. R. Civ. P. 273. Sarfo did not prepare a draft jury charge or otherwise submit proposed definitions or instructions to the district court. Thus, he did not preserve this issue for our review.” Sarfo v. Comm’n for Lawyer Discipline, No. 03-16-00554-CV, 2018 Tex. App. LEXIS 1387, at *19 (App.—Austin Feb. 22, 2018)

Your complaint must be timely, and the record has to reveal the basis for your complaint:

 

• Evidence: “Although the record indicates that Sohani and Virani objected to Exhibit 17, the record does not contain the basis for this objection, which was discussed at a bench conference off the record. The record therefore does not reflect whether Sohani and Virani objected to Exhibit 17 on [*38] the basis that it should have been excluded because Sunesara did not timely disclose it during discovery. . . . We cannot conclude from the record before us that Sohani and Virani objected to these three exhibits on the basis that Sunesara did not timely disclose the exhibits until their motion for new trial. We conclude that because Sohani and Virani did not object to Exhibits 8 and 21 at the times Sunesara offered these exhibits, because the basis for their objection to Exhibit 17 was not stated on the record, and because they waited to object to these three exhibits on the basis of the alleged untimeliness of their disclosure until a motion for new trial, Sohani and Virani did not preserve their complaint that the trial court erroneously admitted these three exhibits for appellate review. R. App. P. 33.1(a);” Sohani v. Sunesara, No. 01-16-00460-CV, 2018 Tex. App. LEXIS 1587, at *37-38 (App.—Houston [1st Dist.] Mar. 1, 2018)
• Summary Judgment: “Appellants assert that the limitations period applicable to their claims was tolled by the number of days Bell was absent from the state. See Tex. Civ. Prac. & Rem. Code Ann. § 16.063. Appellants did not assert this argument in their summary judgment response or at the hearing held on Bell’s motion.Appellants instead waited until their motion [*11] for new trial to raise the issue of statutory tolling. This does not preserve the issue for appellate review. See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797-98 (Tex. 2008) (per curiam) (argument first raised by nonmovant in post-judgment filing did not preserve argument for appeal); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (party waived reliance on argument that it asserted for first time in motion for new trial).” Harris v. Bell, No. 14-16-00829-CV, 2018 Tex. App. LEXIS 1491, at *10-11 (App.—Houston [14th Dist.] Feb. 27, 2018)

You have to obtain a ruling-and you cannot count on the implied ruling safe harbor of Rule 33.1 coming into play:

 

• Discovery: “The investigation reports do not show TDCJ’s fault. The fact that TDCJ investigated Cisneros’s accident does not constitute subjective awareness on the part of TDCJ that its fault produced or contributed to Cisneros’s injury. See id. at 347-48. Indeed, the results of TDCJ’s investigation indicated Cisneros, not TDCJ, was responsible for the accident. Cisneros further argues that this court should infer from the trial court’s order denying TDCJ’s Plea to the Jurisdiction that there is a need for further discovery to resolve a fact issue regarding TDCJ’s subjective awareness. In conjunction with his response to TDCJ’s Plea to the Jurisdiction, Cisneros filed a Motion to Compel discovery and argues that the trial court’s denial of the plea implies the trial court’s [*11] approval of his Motion to Compel. However, no order of the trial court granting his Motion to Compel discovery is included in the record before us. Cisneros was charged with obtaining a ruling on his Motion to compel, objecting if the court refused to rule, or otherwise obtaining a continuance from the trial court to conduct further discovery.See Tex. R. App. P. 33.1(a)(2).”  Dep’t of Criminal Justice v. Cisneros, No. 09-17-00161-CV, 2018 Tex. App. LEXIS 1600, at *10-11 (App.—Beaumont Mar. 1, 2018)
• Evidence: “In the alternative, Comerica contends that the trial court abused its discretion in excluding Plaintiff’s Exhibit 1. But after the trial court deferred ruling on Plaintiff’s Exhibit 1, Comerica did not reoffer the exhibit and request a ruling at any time before resting its case. Therefore, Comerica failed to properly preserve this issue for our review.See Tex. R. App. P. 33.1(a); Hahn v. Love, 394 S.W.3d 14, 36 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (holding that appellant waived complaint that court erred in excluding exhibits when court deferred discussion on admissibility and appellant never attempted to introduce exhibits again and never presented any argument to the trial court regarding why they were admissible). Nor did Comerica make an offer of proof at the conclusion of the trial, even though it did so for a different exhibit. See Tex. R. Evid. 103(a)(2); Carlisle v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex. App.—Houston [14th Dist.] 2004, no pet.). We therefore do not consider Comerica’s evidentiary arguments regarding Plaintiff’s Exhibit 1.” Comerica Bank v. Progressive Trade Enters., No. 14-17-00283-CV, 2018 Tex. App. LEXIS 1376, at *8 n.5 (App.—Houston [14th Dist.] Feb. 22, 2018)
• Judicial Notice: “The problem here, however, is thatthis record does not indicate whether the trial court did or did not judicially notice any portion of the administrative code. And while the trial court had a statutory obligation to take notice of agency rules published in the administrative code, error preservation for failure to do so must be supported by more than a silent record. In order to preserve error, Appellants were required to secure an adverse ruling. See Tex. R. App. P. 33.1(a)(2) (providing that, in order to preserve a complaint for review, the trial court must have ruled or refused to rule). At no point during this trial did Appellants establish that the trial court did not take judicial notice, because at no point during trial did Appellants make any request or inquiry related to the taking of judicial notice.” C. v. Pantego Camp Thurman, Inc., No. 02-17-00022-CV, 2018 Tex. App. LEXIS 1430, at *6 (App.—Fort Worth Feb. 22, 2018)

Your objection on appeal must comport with the objection made at trial:

 

• Expert Report: “As part of his second issue, Dr. Armenta challenges the adequacy of the element of causation in the expert report. In the trial court, Dr. Armenta objected to Dr. Mazzei’s report on the basis that it failed to meet the statutory requirements for stating the standard of care and identifying the breach of that standard, but he did not object on the basis of inadequacy of the report as to causation. Dr. Armenta’s argument about causation is waived because it was not raised in the trial court.” Armenta v. Jones, No. 01-17-00439-CV, 2018 Tex. App. LEXIS 1586, at *18 (App.—Houston [1st Dist.] Mar. 1, 2018)
• Witness: “Brown argues the trial court erred by allowing the State to cross-examine him about the 1988 unadjudicated offense without first reliably establishing the facts in the record.. . . Citing to Texas Rules of Evidence 404, 405, 607, 608, and 609, Brown also argues on appeal that, if a defendant in a criminal case takes the stand and denies committing an extraneous offense, the State is not permitted to cross-examine the defendant about the conduct without offering other evidence the conduct occurred. Brown did not make this argument in the trial court and, therefore, failed to preserve it for our review.See Tex. R. App. P. 33.1(a); In re Commitment of Lucero, No. 09-14-00157-CV, 2015 Tex. App. LEXIS 1098, 2015 WL 474604, at *4 (Tex. App.—Beaumont Feb. 5, 2015, pet. denied) (mem. op.) (“HN4 An issue on appeal that does not comport with an objection made at trial is waived.”).” In re Commitment of Brown, No. 05-16-01178-CV, 2018 Tex. App. LEXIS 1357, at *21 n.4 (App.—Dallas Feb. 20, 2018)

Your complaint must be sufficiently specific:

 

• Evidence: “With respect to the business records attached to Turner’s affidavit, Foster, on appeal, argues that “several of the records/documents at issue” and the “various loan origination and loan transfer documents” were not admissible under the business records exception because those documents were not generated by TSI. She asserts that Exhibit A, the Subservicer Certification, is “suspect” and has numerous “trustworthiness issues,” i.e., it is not on letterhead, it is not addressed to TSI, it contains names that do not match the names on the governing documents, it conflicts with the indenture, and it is not notarized. She also asserts that “[a]uthentication is an issue with respect to several components of Exhibit 1, including all documents offered for chain-of-title purposes.” [*16] She also complains about the admission of the “Numerical Data Exhibits” and “Data Box Exhibit” in Exhibit 1 as “not properly authenticated” and “did not satisfy the multiple requirements applicable to business records.” The record does not reflect, however, that Foster raised any of these points in the trial court. To preserve a complaint for appellate review, a party must state an objection clearly and with sufficient specificity to make the trial court aware of the particular grounds for the complaint. R. App. P. 33.1(a); McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989). A specific objection is one that enables the trial court to understand the precise grounds so as to make an informed ruling and affords the offering party an opportunity to remedy the defect, if possible.McKinney, 772 S.W.2d at 74. As discussed above, the record shows that Foster made a general hearsay objection. “[A] general hearsay objection does not preserve for appeal a challenge to a proper predicate’s being made to admit business records.”Rogers v. Dep’t of Family & Protective Servs., 175 S.W.3d 370, 376 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) . . . . We hold that the trial court did not err in admitting the business-records affidavit. We overrule the portion of Foster’s first issue in which she challenges the affidavit. Foster has waived the remaining portions of her first issue.” Foster v. Nat’l Collegiate Student Loan Tr. 2007-4, No. 01-17-00253-CV, 2018 Tex. App. LEXIS 1606, at *15-17 (App.—Houston [1st Dist.] Mar. 1, 2018)

There are a number of cases in which the parties did not raise their complaints in the trial court, and I won’t set those out here.

I hope this helps. Y’all take care.

Yours,

Steve Hayes