Error Preservation in Texas Civil Cases, March 31, 2018

Dear All:

Table of Contents

The Supreme Court weighed in on error preservation recently in a summary judgment context in a back-handed kind of way, holding that the failure of a summary judgment movant to attach deeds to its motion “was not error at all,” because 166a(c)  “require[s] a trial court to grant a summary-judgment motion if the evidence ‘on file at the time of the hearing, . . . ” establishes that the movant is ‘entitled to judgment as a matter of law,’” and the pertinent deeds were on file.  Here, the deeds had previously been admitted in evidence at a temporary injunction hearing[and were clearly filed with the clerk that same day], the motion “expressly ‘referenced and specified’ the injunction-hearing transcript and exhibits ‘as evidence in support of’ the motion,” at the “summary-judgment hearing, the trial court judge had the temporary-injunction transcript-including the deeds and other exhibits-in front of him, reviewed the deeds, and discussed them with counsel, including [non-movant’s] counsel, who never . . . objected on the ground that the [movants’ had not re-filed the deed as attachments to their summary judgment motion.”  Lance v. Judith & Terry, No. 16-0323, 2018 Tex. LEXIS 246, at *15-18 (Mar. 23, 2018)

The following case which has a compilation of many examples of formal deficiencies of affidavits–which you have to object to in the trial court–and substantive objections, which you can raise for the first time on appeal:


  • Affidavit: “Generally, to preserve an objection [*14]  for appellate review, the trial court must either make an express or implicit ruling. Tex. R. App. P. 33.1. However, in the context of affidavits, some defects may be raised for the first time on appeal. . . . Defects in affidavits fall into two categories: defects of substance and defects of form. . . . .  “A defect is substantive if the evidence is incompetent, and it is formal if the evidence is competent but inadmissible.” . . . . Objections to substantive defects are never waived, and they may be raised for the first time on appeal because incompetent evidence “cannot be considered under any circumstances.” . . . . UTHealth’s contentions that some statements in the affidavits were irrelevant, speculative, conclusory, or otherwise without factual support are objections to substantive defects. See Green, 1 S.W.3d at 130; McMahan, 108 S.W.3d at 498. UTHealth specifically challenged (1) the nurses’ statements that Riley was bullying and targeting people (conclusory), (2) a reference to nurse Marsha Urbina as “an older nurse” (relevance), (3) allegations in the nurses’ affidavits regarding Riley’s and Smith’s treatment of Sanders on April 15, 2014 (speculation and relevance to adverse employment action), (4) allegations in Perkins’s and Hartranft’s affidavits about Dr. Tyson’s investigation conducted on May 30, 2014 (conclusory), and [*17]  (5) allegations in the nurses’ affidavits regarding the June 12, 2014 firing of Perkins and Hartranft’s July 9, 2014 resignation (relevance to Carver’s case).”  UT Health Sci. Ctr.-Houston v. Carver, No. 01-16-01010-CV, 2018 Tex. App. LEXIS 2161, at *13-17 (App.—Houston [1st Dist.] Mar. 27, 2018)

You don’t waive your right to challenge a severance by failing to file a motion to transfer venue:


  • Severance:  “Moreover, Johnson’s motion addresses his complaints about the trial court’s severance orders, and he did not ask the trial court to revisit its decision on venue. While Johnson failed to file a timely motion to transfer,  nothing in Rule 86, which provides that an objection to improper venue is waived if not made by written motion, states that a party also waives all complaints regarding an improper severance. See Tex. R. Civ. P. 86.” In re Johnson, No. 09-18-00064-CV, 2018 Tex. App. LEXIS 2048, at *14-15 (App.-Beaumont Mar. 22, 2018)

There are some things you can raise for the first time on appeal—such as the fact that the court of appeals cannot affirm a summary judgment on a ground not raised in the motion for summary judgment:


  • Summary Judgment:  “A summary-judgment movant may try an issue raised in the nonmovant’s response by consentand thus waive the movant’s objection that the nonmovant was required to raise the issue in the nonmovant’s pleading as well as in its summary-judgment response. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam). But, a non-movant’s failure to object to the movant raising an argument somewhere other than in the summary-judgment motion does not allow an appellate court to affirm the summary judgment based on that argument [*24]  if the movant failed to expressly present the argument in the summary-judgment motion. See Nat’l City Bank of Indiana, 401 S.W.3d at 882.  We may not affirm the trial court’s granting of the First Motion on the stranger-to-title ground because the Sandel Parties did not expressly present that ground in the First Motion. As discussed above, the trial court erred in granting the First Motion on each of the grounds the Sandel Parties expressly presented in the First Motion. Thus, we conclude the trial court erred in granting the First Motion and declaring that the Royalty Interest “is of no legal force nor effect, resulting in [Armour], its successors and assigns having no claim to any rights otherwise evidenced by [the Royalty].””  Armour Pipe Line Co. v. Sandel Energy, Inc., No. 14-16-00490-CV, 2018 Tex. App. LEXIS 2209, at *23-24 (App.—Houston [14th Dist.] Mar. 28, 2018)

For those of you who work on parental right termination cases, there are several courts which hold that the failure to appoint an attorney ad litem for the child can be raised for the first time  on appeal:


  • Attorney Ad Litem:  “Father did not object before the trial court regarding its failure to appoint an attorney ad litem or amicus attorney for the child. Our rules of appellate procedure require that, for error to be preserved for appellate review, the complaining party must have made an objection to the trial court and the trial court must have either ruled on the objection or refused to issue a ruling, and the complaining party objected to the refusal. SeeTex. R. App. P. 33.1. However, several courts have concluded that a trial court’s failure to appoint an attorney ad [*5]  litem or amicus attorney for a child in a private termination case may be raised for the first time on appeal. See In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.-Amarillo 2010, no pet.); Turner v. Lutz, 654 S.W.2d 57, 58 (Tex. App.-Austin 1983, no pet.); Arnold v. Caillier, 628 S.W.2d 468, 469 (Tex. App.-Beaumont 1981, no pet.); see also In re D.W., No. 04-05-00927-CV, 2006 Tex. App. LEXIS 7005, 2006 WL 2263907, at *1 (Tex. App.-San Antonio Aug. 9, 2006, no pet.) (Lopez, C.J., dissenting) (dissenting on other grounds, but recognizing that failure to appoint an ad litem for a child may be raised for the first time on appeal); 40A Tex. Jur. 3d Family Law § 1897 (noting that, despite preservation of error rules, a trial court’s failure to comply with Tex. Fam. Code. § 107.021(a-1) may be raised for the first time on appeal).  “Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child’s right to inherit from the parent.” In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, we must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. Given the constitutional interests at stake in termination proceedings, the important role of amicus and ad litem attorneys in termination proceedings, and the mandatory nature of Section 107.021(a-1), we conclude a complaining party may raise a trial court’s failure to appoint an attorney ad litem or amicus attorney when required by Section 107.021(a-1) for the first time on appeal.”  In re D.M.O., No. 04-17-00290-CV, 2018 Tex. App. LEXIS 1992, at *4-5 (App.-San Antonio Mar. 21, 2018)

When your complaints on appeal comport with those you raise on appeal, you have preserved them:


  • Healthcare Liability:  “Mrs. Butler argues that Appellants’ only objection at the trial court level was to her fourth theory of liability, which is that Appellants improperly administered antipsychotic medications to Mr. Butler. Thus, Mrs. Butler argues that Appellants waived all complaints regarding her first three theories of liability, which are that Appellants (1) failed to ensure Mr. Butler remained well hydrated, (2) failed to ensure Mr. Butler was not over-sedated, and (3) improperly physically and chemically restrained Mr. Butler. A review of the record indicates that Appellants’ objections and arguments to the trial court sufficiently comport with the arguments they make on appeal, and we conclude that Mrs. Butler’s waiver argument is without merit. SeeTex. R. App. P. 33.1(a)(1)(A).”  Oceans Behavioral Healthcare of Longview v. Butler, No. 12-17-00297-CV, 2018 Tex. App. LEXIS 2017, at *2 n.1 (App.-Tyler Mar. 21, 2018)

You have to comply with the pertinent rules:


  • Continuance:  “In his first issue, Morris argues the trial court erred in denying his Request for Rescheduling.  Texas Rule of Civil Procedure 251 governs motions for continuance and provides that a motion shall not be granted except for sufficient cause supported by affidavit, consent of the parties, or by operation of law. Tex. R. Civ. P. 251; seeIn re A.M., 418 S.W.3d 830, 838 (Tex. App.—Dallas 2013, no pet.); Strong v. Strong, 350 S.W.3d 759, 762 (Tex. App.—Dallas 2011, pet. denied). Morris’s Request for Rescheduling was not supported by affidavit, Southern Journeys did not consent to a continuance, and Morris has not explained how a continuance was required by operation of law. Accordingly, Morris has failed to preserve any error from the trial court’s denial of his request. See In re A.M., 418 S.W.3d at 838; Strong, 350 S.W.3d at 762. We overrule his first issue.”  Morris v. S. Journeys of Tex., No. 05-17-00445-CV, 2018 Tex. App. LEXIS 2172, at *4 (App.—Dallas Mar. 27, 2018)
  • Evidence:  “By his third issue, Willmore contends that “[i]t was harmful error for the [j]udge to refuse to allow [him] to put on evidence of his reimbursement claim[.]” However, as with his first issue, Willmore has failed to provide us with a sufficient trial record demonstrating compliance with the steps listed above. See Ulogo, 177 S.W.3d at 502. Specifically, we have no record of the precise evidence Willmore sought to admit or what evidence was refused in regard to his reimbursement claim. See id. At trial, Willmore referenced a “CD” in regard to his reimbursement claim, but hefailed to make an offer of proof or otherwise include this evidence in the appellate record. We conclude that Willmore failed to preserve his third issue for appellate review. See Tex. R. App. P. 33.1.”  Willmore v. Alcover, No. 13-16-00180-CV, 2018 Tex. App. LEXIS 2044, at *5 (App.-Corpus Christi Mar. 22, 2018)
  • Legal Sufficiency:  “Rule 324 of the Texas Rule of Civil Procedure requires a motion for new trial to preserve a complaint of factual sufficiencyof the evidence to support a jury finding. Tex. R. Civ. P. 324(b)(2), (3). In a jury trial, a legal sufficiency issue must be preserved by filing one of the following in the trial court: a motion for instructed verdict; a motion for judgment notwithstanding the verdict; an objection to the submission of the question to the jury; a motion to disregard the jury’s answer to a vital fact question; or a motion for new tria See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); In the Interest of T.L.P., No. 09-13-00220-CV, 2013 Tex. App. LEXIS 13513, 2013 WL 5874630, at *2-3 (Tex. App.-Beaumont Oct. 31, 2013, no pet.) (mem. op.). The record shows that Susan failed to file the required motions and objections to preserve her legal and factual sufficiency complaints. See Tex. R. Civ. P. 324(b)(2), (3);”  In re A.B., No. 09-17-00365-CV, 2018 Tex. App. LEXIS 2052, at *4 (App.-Beaumont Mar. 22, 2018)
  • Summary Judgment:  “Because the Rahmans did not file a written response or answer to Foster’s motion for summary judgment and have not raised a legal sufficiency argument on appeal, the Rahmans have presented nothing for this Court to review on appeal. SeeTex. R. Civ. P. 166a(c);” Rahman v. Foster, No. 05-16-01042-CV, 2018 Tex. App. LEXIS 1966, at *6 (App.-Dallas Mar. 19, 2018)
  • Summary Judgment:  “And although Steven filed a motion for new trial, “a party who fails to expressly present to the trial court any written response in opposition to a motion for summary judgment waives the right to raise any arguments or issues post-judgment.” Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008); see Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (concluding party waived issue in opposition to summary judgment when the party asserted the issue for the first time in a motion for new trial). . . . With respect to one issue—issue six—Steven argues on appeal that: APPELLANT PRESERVED THE ISSUE OF NOT HAVING DEPOSITIONS AT SUMMARY JUDGMENT HEARING, WHEN THE TRIAL JUDGE STATED, [*4]  “YOU SAID THAT YOU HAD TWO INDIVIDUALS THAT YOU WISHED TO DEPOSE THAT WILL ESTABLISH YOUR CLAIM OF DEFAMATION. MY QUESTION IS: WHY DID YOU NOT TAKE THOSE DEPOSITIONS?” (RR: 5, 6, 7) THEREFORE, THE TRIAL COURT SHOULD HAVE ALLOWED MORE TIME TO GATHER DISCOVERY. But reference to the trial court’s statement does not show that appellant “expressly presented” the issue regarding the absence of depositions to the trial court “by written motion, answer or other response[.]” As a result, it may not be considered on appeal as a ground for reversal. See Tex. R. Civ. P. 166a(c).”  Sims v. Sims, No. 05-16-00984-CV, 2018 Tex. App. LEXIS 2171, at *3-4 (App.—Dallas Mar. 27, 2018)

As usual, a whole slew of cases discussed issues which parties failed to raise at that trial court level, but I won’t burden you with those.

I hope this helps. Y’all take care.


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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