March 7, 2023
Sorry, folks. I got way behind, trying to keep up with speaking, the ice storm, and the pesky day job.
Table of Contents
Some complaints can first be raised on appeal–and new arguments in support of a complaint at trial can, as well
Legal and Factual Sufficiency (Bench Trial)
The complaint you raise on appeal must be the complaint you raised in the trial court–and sometimes the trial court’s comments on the record and its findings can confirm you did so
While unpled issues may be tried by consent, and the complaint about lack of pleadings thereby waived, trial by consent is not a doctrine courts like to invoke
Here is a case in which a party preserved her complaint that a trial court improperly dismissed her complaint after she made a good faith effort to replead to satisfy the trial court’s earlier ruling sustaining certain special exceptions
You have to bring your complaint to the trial court’s attention– getting a ruling is one way to make sure you did so
Appointment of Counsel
Ineffective Assistance of Counsel
Your complaint must be sufficiently specific, and sometimes the context can provide the specificity (especially if the judge says something to confirm an understanding of the specificity)
You have to get a ruling
Your complaint must be timely
You have to comply other pertinent rules
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Attendance at Trial in Person
Legal and Factual Sufficiency
Some complaints can first be raised on appeal–and new arguments in support of a complaint at trial can, as well:
Government Immunity: “Ames did not argue in the trial court that the Contract lacked the essential terms of the agreement, but it makes that argument on appeal. The Texas Supreme Court has explained that while appellate courts do not consider issues that were not raised in the trial court, the parties may construct new arguments in support of issues that were raised below. See Li v. Pemberton Park Cmty. Ass’n, 631 S.W.3d 701, 704 (Tex. 2021) (citing Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014)). Because all the arguments Ames raises on appeal relate to the issue of whether governmental immunity has been waived, we construe Ames’s second issue as relating to the issue Ames raised at trial court.” City of Ames v. City of Liberty, No. 09-22-00092-CV, 2023 Tex. App. LEXIS 1166, at *17 (Tex. App.—Beaumont Feb. 23, 2023, no pet. h.)
Expert (Assumptions): “Robinson also argues the “record does not support some of the conclusions made by Dr. McGarrahan because they were based on unwarranted assumptions.” Robinson can still raise this no-evidence claim for the first time on appeal.” In re Commitment Robinson, No. 05-21-00795-CV, 2023 Tex. App. LEXIS 1158, at *14 (Tex. App.—Dallas Feb. 23, 2023, no pet. h.)
Legal and Factual Sufficiency (Bench Trial): “New Wassar contends that Old Wassar waived its right to recover fees because it did not challenge the trial court’s refusal to award fees in a post-judgment motion. On appeal, however, Old Wassar makes two arguments relating to its attorney’s fees. First, Old Wassar argues that it conclusively proved its right to recover $92,068, which is the full amount of attorney’s fees and costs it incurred with respect to New Wassar’s various alleged breaches of the lease agreement. Second, and in the alternative, Old Wassar argues that it introduced some evidence of fees, and the trial court therefore could not award no fees whatsoever given the mandatory fee provision in the lease.
Both of Old Wassar’s arguments challenge the sufficiency of the evidence supporting the trial court’s judgment. In a bench trial, a party may raise evidentiary sufficiency issues for the first time on appeal. TEX. R. APP. P. 33.1(d). This includes challenging the legal or factual sufficiency of the evidence supporting an award of attorney’s fees or the failure to award them….Thus, Old Wassar did not waive its right to complain about the trial court’s refusal to award attorney’s fees by failing to first raise this complaint in a post-judgment motion.” Kroesche v. Wassar Logistics Holdings, LLC, No. 01-20-00047-CV, 2023 Tex. App. LEXIS 618, at *52-54 (Tex. App.—Houston [1st Dist.] Jan. 31, 2023, no pet. h.)
The complaint you raise on appeal must be the complaint you raised in the trial court–and sometimes the trial court’s comments on the record and its findings can confirm you did so:
Evidence: “On appeal, although J.P. mentions the concept of relevant evidence, his argument is that the testimony about the pictures and videos found on J.P.’s cell phone presented inadmissible extraneous offense evidence. However, J.P. did not assert at trial that the pictures and videos found on J.P.’s cell phone were inadmissible extraneous offenses. Rather, J.P. only objected that the videos were irrelevant. Thus J.P.’s issue on appeal does not comport with the objection raised at trial.
To preserve a complaint for appellate review, the issue on appeal must comport with the objection made at trial. [*10] Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). “[A]n objection stating one legal theory may not be used to support a different legal theory on appeal.” Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1999) (op. on reh’g). Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review….Because J.P.’s issue on appeal does not comport with the objection raised at trial, nothing is preserved for review.” In re J.P., No. 10-22-00122-CV, 2023 Tex. App. LEXIS 786, at *9 (Tex. App.—Waco Feb. 8, 2023, no pet. h.)
Expert: “The State argues that Hale’s first issue should be overruled because it was not properly preserved. To preserve a complaint for our review, the complaint on appeal must match that presented in the trial court….The State points out that Hale argues that Dr. Reed’s opinion is not reliable, but in the trial court, Hale argued that she was not qualified. Hale did argue in the trial court that she was not qualified, but that is not all that he argued. In his “Motion to Exclude Testimony of Dr. Christine Reed,” Hale made multiple arguments, including that “any testimony Dr. Reed might provide is unreliable.” At the time of the civil-commitment trial, the trial court referred to “the motion that was filed back on July 7th of 2021” and said “we’ll deny that motion as it was filed.” [Emphasis added.]
The State’s contention that “[t]he trial court understood Hale’s argument to be that Dr. Reed was not qualified” is further belied by the record of the Daubert/Kelly hearing, at which the State itself said that it was “clear from [Dr. Reed’s] testimony this morning [*9] that . . . the issue is not qualifications, but it goes to the weight of her testimony, not whether she’s qualified to testify.” The trial court responded, “Well, and ultimately . . . that may be the issue.” Finally, at the conclusion of the hearing, the trial court found “that Dr. Reed is a qualified expert, that her testimony could be relevant and reliable,” and “that her testimony and her opinion will be admissible.” This is the ruling of which Hale complains on appeal. The State’s waiver argument has no merit.” In re Commitment of Hale, No. 02-21-00373-CV, 2023 Tex. App. LEXIS 1349, at *8-9 (Tex. App.—Fort Worth Mar. 2, 2023, no pet. h.)
Jury Argument: “In Warren’s third issue, she argues State Farm’s counsel made incurable, prejudicial jury arguments. State Farm responds Warren failed to preserve her issue for review; however, even if she preserved the issue, there is no evidence the jury based its verdict on an improper argument.
Appellate complaints of improper jury argument must ordinarily be preserved by a timely objection and request for an instruction to disregard the improper remark….Tex. R. App. P. 33.1. However, an incurable jury argument complaint may be asserted and preserved in a motion [*17] for new trial, even without a complaint and ruling during the trial…. Tex. R. Civ. P. 324(b)(5).
Warren cites five separate instances of incurable, prejudicial jury arguments during State Farm’s closing argument. She did not object to four of these statements, and the trial court did not rule on the one objection she made to a fifth statement. See Tex. R. Civ. P. 33.1. Therefore, for this Court to consider her arguments on appeal, Warren must have raised them in her motion for new trial. Tex. R. Civ. P. 324(b)(5); …In addition, her complaint raised on appeal must comport with the objection made to the trial court in her motion for new trial….
Warren broadly referenced two “incurable” arguments in her motion for new trial….Warren did not argue in her motion for new trial that State Farm made incurable arguments based on Burleson’s race. Thus, her argument raised on appeal does not comport with her argument to the trial court. Because Warren’s complaint does not comport with those raised in her motion for new trial, it is waived….” Warren v. State Farm Lloyds, No. 05-21-00970-CV, 2023 Tex. App. LEXIS 1224, at *16-18 (Tex. App.—Dallas Feb. 27, 2023, no pet. h.)
Jury: “In Issue Four, EPISD contends that the trial court gave an erroneous response to a note that the jury sent to the court during its deliberations, asking for “clarification or simplification of the definition of incurable imbecility.” In response, the trial court instructed the jury: “Do not look up more definitions of words other than what is in the jury charge. . . . Use your recollection from the witnesses testimony and/or use what is in the exhibits of the trial records.” EPISD objected to the second portion of the instruction, asserting that “there was no definition in the testimony or exhibits,” and that it would be “confusing” to the jury to look to the record in answering the question, as it implied that the jury could “find” evidence of Portillo’s imbecility there.
On appeal, EPISD raises a different challenge to the jury’s response, arguing that it constituted an “improper comment on the weight of the evidence.” When raising an issue on appeal, a “party is confined to the grounds of [its] objection as stated in the trial court.”….Here, EPISD is raising an entirely new theory for why the response was erroneous, and we would be “hard pressed to fault” a trial court for overlooking a theory that was not presented to it. Knight, 131 S.W.3d at 539; see generally 4 Tex. Jur. 3D Appellate Review § 94 (2023). Accordingly, by failing to make the trial court aware of this challenge to the response, EPISD failed to preserve this issue for our review.” El Paso Indep. Sch. Dist. v. Portillo, No. 08-21-00021-CV, 2023 Tex. App. LEXIS 584, at *32-33 (Tex. App.—El Paso Jan. 30, 2023, no pet. h.)
While unpled issues may be tried by consent, and the complaint about lack of pleadings thereby waived, trial by consent is not a doctrine courts like to invoke:
Pleadings: “Sunesara also argues that the issue was tried by consent because Sohani and Virani did not object during trial to Sunesara’s testimony. Sunesara, however, never testified that Sohani or Virani made misrepresentations to him that induced him to transfer the smoke shops from SSV Corporation to the LLCs….Sunesara did not testify that Sohani and Virani made any promises to him concerning an ownership interest, or a share of profits, in the LLCs when the parties discussed forming the LLCs….This testimony—that Sohani and Virani failed to tell Sunesara certain things—is not testimony that Sohani and Virani made affirmative misrepresentations to him….Although Sunesara undoubtedly saw the Form 2553s, given that he signed them, there is no evidence in the record that he saw these forms before SSV Corporation transferred the smoke shops to the LLCs….Sunesara’s unobjected-to testimony about the creation of the LLCs, the Certificates of Formation, and the Form 2553s does not constitute trial by consent of the issue of alleged fraudulent misrepresentations by Sohani and Virani that induced Sunesara to transfer assets from SSV Corporation to the LLCs.” Sohani v. Sunesara, No. 01-20-00114-CV, 2023 Tex. App. LEXIS 602, at *24-31 (Tex. App.—Houston [1st Dist.] Jan. 31, 2023, no pet. h.)
Here is a case in which a party preserved her complaint that a trial court improperly dismissed her complaint after she made a good faith effort to replead to satisfy the trial court’s earlier ruling sustaining certain special exceptions:
Pleadings: “In her second issue, appellant contends the trial court erred in dismissing her claims after she made a good faith attempt to amend her petition and appellees did not file further special exceptions. Appellees respond that appellant has waived error, and even if she preserved error, she did not make a good faith attempt to amend. Appellees contend appellant waived any error in the dismissal of her claims because she did not properly challenge the trial court’s ruling sustaining the special exceptions….Here, appellant filed her second [*9] amended petition in response to the trial court’s order. Appellant’s failure to challenge the ruling on the special exceptions is not inconsistent with her position that the trial court erred in dismissing her claims. She argues the court erred in dismissing her claims after a good faith attempt to amend without another round of special exceptions. She preserved this argument by raising it in her written opposition to appellees’ motion to dismiss, at the hearings on appellees’ motion to dismiss and on her motion for reconsideration, and in her appellate brief.” J.G. v. Jones, No. 05-22-00215-CV, 2023 Tex. App. LEXIS 1217, at *7-9 (Tex. App.—Dallas Feb. 27, 2023, no pet. h.)
You have to bring your complaint to the trial court’s attention– getting a ruling is one way to make sure you did so:
Appointment of Counsel: “In what we construe as his first issue, Tait argues that the trial court abused its discretion by failing to appoint him a “Pro-bono attorney.” To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the request’s, objection’s, or motion’s context. Tex. R. App. P. 33.1(a)(1)(A). If a party fails to do this, error is not preserved. …Merely filing a motion is insufficient to show that the party brought it to the trial court’s attention or requested a ruling. ….
Here, the record reflects that Tait filed a “Final Plea by Plaintiff for Pro-Bono Legal Representative/Lawyer Due to Diminished Cognitive Ability of Plaintiff as a Direct Result of Sleep Deprivation” in which he requested that the court appoint him counsel and that he also argued that he “should have been assigned a Pro-Bono Attorney” in his “Motion to Stop Summary Judgment(s).” However, there is nothing in the record to indicate that Tait ever brought these requests to the trial court’s [*5] attention or requested a ruling on them….Accordingly, Tait has not preserved this complaint for review. See Tex. R. App. P. 33.1(a)(1)(A)….In what we construe as his third issue, Tait argues that the trial court abused its discretion by failing to grant his motion for continuance filed [*9] two days before the hearing on Pepsi’s and Dr Pepper’s respective motions for summary judgment.
Once again, we turn to preservation. To preserve a complaint on appeal concerning a trial court’s denial of a motion for continuance, the record must demonstrate that the party presented the motion to the trial court…. A party does not meet this burden by merely filing a motion for continuance with the trial court clerk. Id. Further, the record must demonstrate that the trial court denied the motion or that it refused to rule on the motion and the complaining party objected to the refusal to rule. Id. Here, the record does not demonstrate that Tait presented his motion for continuance to the trial court, nor does it show that the trial court denied the motion or refused to rule on the motion and that Tait objected to such a refusal to rule.11Link to the text of the note We thus conclude that Tait has failed to preserve this issue for review. See id. (holding that appellant failed to preserve complaint regarding motion for continuance where the record contained no indication he had presented the motion to the trial court or that the trial court had denied the motion as alleged..” Tait v. Pepsico Inc., No. 02-22-00290-CV, 2023 Tex. App. LEXIS 1345, at *4-5 (Tex. App.—Fort Worth Mar. 2, 2023, no pet. h.)
Evidence: “Although Kinney generally objected to adhering to the time limits, she did not make either an offer of proof at trial or a post-trial bill of exception setting forth any specific evidence excluded based upon the complained-of time constraint….see also Tex. R. App. P. 33.2 (addressing formal bills of exception). Moreover, on the last day of trial, [*21] after Kinney finished her testimony, the trial court gave her an opportunity to call another witness. But Kinney declined and instead simply rested her case.7
Also on the final day of trial, after Batten and Leslie each testified, Kinney told the trial court that she had “no further questions.” Kinney and Batten then each gave closing argument that spanned equal length in the transcript.
Because the record does not reflect that Kinney made the trial court aware of any evidence that she would have introduced, had she been granted additional time, we hold that Kinney failed to preserve for our review her complaint that the trial court abused its discretion by denying her motion for additional time to present her case on the last day of trial.” Kinney v. Batten, No. 01-21-00394-CV, 2023 Tex. App. LEXIS 1389, at *20-21 (Tex. App.—Houston [1st Dist.] Mar. 2, 2023, no pet. h.)
Evidence: “We conclude the record shows that the trial court did not expressly rule on John’s hearsay objection.” In re Est. of Pettit, No. 06-22-00043-CV, 2023 Tex. App. LEXIS 1369, at *8 (Tex. App.—Texarkana Mar. 2, 2023, no pet. h.)
Ineffective Assistance of Counsel: “C.C. filed a timely motion for new trial claiming ineffective assistance of counsel and disproportionate sentencing. Because the motion for new trial raised matters not determinable from the record, C.C. requested a hearing on the motion; however, it was overruled by operation of law. C.C. argues that the trial court erred by failing to conduct a hearing on his motion for new trial. The State argues that C.C. failed to preserve this complaint because his motion for new trial was not properly presented to the trial court. We agree. Juvenile proceedings are quasi-criminal in nature….For this reason, certain aspects of juvenile proceedings are governed by the same rules that apply in criminal cases. “A motion for new trial seeking to vacate an adjudication is . . . governed by Rule 21, Texas Rule of Appellate Procedure.” Tex. Fam. Code Ann. § 56.01(b-1)(2). Under Rule 21, titled “New Trials in Criminal Cases,” [*3] the motion for new trial must be presented “to the trial court within 10 days of filing it.” Tex. R. App. P. 21.6….complaints raised in a motion for new trial in juvenile cases are not preserved unless properly presented.” In re C.C., No. 06-22-00057-CV, 2023 Tex. App. LEXIS 872, at *2-3 (Tex. App.—Texarkana Feb. 10, 2023, no pet. h.)
Your complaint must be sufficiently specific, and sometimes the context can provide the specificity (especially if the judge says something to confirm an understanding of the specificity):
Attorney Fees: “In issue six, Narzynski complains the trial court erred by awarding attorney’s fees because the only claim River Plantation prevailed on was under the statutory public nuisance claim, and Narzynski argues the pleadings do not support a recovery of attorney’s fees. In its Second Amended Petition and Application for Injunctive Relief, the Association sought attorneys’ fees pursuant to applicable provisions of the declarations, the Texas Property Code, and the Texas Civil Practice & Remedies Code; this pleading also referenced attorneys’ fees in a general prayer for relief. Although the Association sought to enjoin a public nuisance as permitted by section 343.013 of the Texas Health and Safety Code, it did not specifically request attorneys’ fees as allowed [*16] under section 343.013(b). See Tex. Health & Safety Code Ann. § 343.013(a), (b). Narzynski contends that this alleged pleading defect precludes the Association from recovering its attorneys’ fees, because it was not the prevailing party under the authorities by which it expressly sought recovery of its attorneys’ fees.
The Association, conversely, argues that its pleadings provided fair notice that it was seeking attorneys’ fees. It notes that it requested relief under Chapter 343 of the Texas Health and Safety Code, and that this chapter necessarily includes section 343.013(b), which allows the award of “reasonable attorney’s fees and court costs.” Id. § 343.013(b). During trial, Narzynski made only a global and general objection to the award of any attorney’s fees because he claimed he had done nothing wrong. This general objection to paying any attorneys’ fees falls short of the type of objection required to preserve appellant’s current complaint for appellate review. See …Tex. R. App. P. 33.1(a)(1).
The claim for attorney’s fees under the public nuisance statute was tried by consent, and Narzynski cannot raise the alleged variance or pleading deficiency for the first time on appeal….We conclude Narzynski has waived his appellate complaint of the trial court’s decision to award attorney’s fees pursuant to section 343.013(b).” Narzynski v. River Plantation Cmty. Improvement Ass’n, No. 09-21-00026-CV, 2023 Tex. App. LEXIS 1168, at *15-17 (Tex. App.—Beaumont Feb. 23, 2023, no pet. h.)
Child Custody/Visitation: “Jason claims that Michelle has waived her complaint regarding the possession and access schedule included in the final decree. The general rules involving preservation of error apply to the entry of Rule 11 agreements….But here, Michelle did not complain that the possession and access schedule did not conform to the parties’ Rule 11 agreement until she filed her untimely second amended motion to correct, reform, or modify the final decree on November 1, 2021, more than thirty days after the trial court entered its judgment. See Tex. R. Civ. P. 329(b); Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003) (holding that “an untimely amended motion for new trial does not preserve issues for appellate review, even if the trial court considers and denies the untimely motion within its plenary power period”). Citing no authority, Michelle argues in her reply brief that her motion to enter with its attached proposed judgment was sufficient to preserve this issue for our review. We conclude that Michelle’s complaint below does not comport with the one made here, and it was not specific enough to apprise the trial court of the grounds therefor. See Tex. R. App. P. 33.1(a). First, Michelle’s motion to enter only alerted the court to the fact that the parties were unable to agree on the content of the final judgment based on their competing interpretations of the Rule 11 agreement’s term relating to child support. Second, at the hearing on September 15, Michelle represented to the court that “just one” issue needed resolution: child support. We cannot expect trial courts to comb through competing proposed judgments to spot the differences between them or to modify either judgment, sua sponte, to ensure it comports with each provision of the parties’ Rule 11 agreement. If a party believes that a proposed judgment does not comport with the settlement agreement, it is her burden to call the court’s attention to the objectionable provisions in a timely and specific manner….Because Michelle did not timely call the court’s attention to this alleged discrepancy, we conclude that Michelle has waived this issue for our review.” In re Marriage of Mann, No. 13-21-00442-CV, 2023 Tex. App. LEXIS 487, at *15-17 (Tex. App.—Corpus Christi Jan. 26, 2023, no pet. h.)
Evidence: “We note the Department’s contention that Mother waived her procedural due process complaint because she objected in the trial court that allowing evidence related to the North Carolina referral “violate[d] her constitutional rights” without specifying what constitutional right she was talking about. But the record shows that the trial court understood from the context of Mother’s argument that she was complaining about due process. Thus, we disagree that Mother’s objection was not sufficiently specific to preserve error. See Tex. R. App. P. 33.1(a)(1)(A) (allowing preservation of error when “specific grounds [for objection] were apparent from context”).” In the Int. of C.K.H., No. 01-22-00603-CV, 2023 Tex. App. LEXIS 982, at *23 n.8 (Tex. App.—Houston [1st Dist.] Feb. 15, 2023, no pet. h.)
You have to get a ruling:
Affidavit: “Based on Personal Knowledge. The Gribbles also objected to the following statement on the basis that it was not based on personal knowledge: “The partners were agreed on that date to be Quion Investors . . . and Carolyn Gribble and her husband Jim.” The trial court did not rule on that objection. To preserve error for formal defects, one must (1) timely object or move to strike, (2) state the specific ground, unless it was apparent from the context, and obtain a ruling from the trial court or object to the trial court’s refusal to rule. Tex. R. Evid. 103(a); Tex. R. App. P. 33.1(a); Nationwide Coin & Bullion Reserve, Inc. v. Thomas, 625 S.W.3d 498, 504 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). Lack of personal knowledge is a defect of form, and the Gribbles did not object to the refusal to rule. See id. Their objection to lack of personal knowledge is therefore waived. See id.” Quion Inv’rs, Inc. v. Gribble, No. 14-21-00369-CV, 2023 Tex. App. LEXIS 400, at *7-8 (Tex. App.—Houston [14th Dist.] Jan. 24, 2023, no pet. h.)
Affidavit: “On appeal, Peavley complains that Osmond’s affidavit lacks personal knowledge, which is a defect of form. Although he objected to Osmond’s affidavit in the trial court, Peavley failed to obtain rulings on those objections and has waived them….Because Peavley failed to obtain a ruling on his objections as to lack of personal knowledge in the trial court, he cannot raise these objections on appeal.” Wal-Mart Stores Tex. v. Peavley, No. 09-21-00403-CV, 2023 Tex. App. LEXIS 811, at *12 n.3 (Tex. App.—Beaumont Feb. 9, 2023, no pet. h.)
Evidence: “By striking the [Amended Motion to Arbitrate, to which the] Contract [was attached], the trial court never ruled on Williams-Birdow’s [evidentiary] objections [to the Contract]. As a result, they are waived and may not be urged on appeal.” Serv. Corp. Int’l v. Williams-Birdow, No. 02-22-00213-CV, 2023 Tex. App. LEXIS 1353, at *24 (Tex. App.—Fort Worth Mar. 2, 2023, no pet. h.)
Witness: “Finally, in his third point Rushing contends that the trial court erred by “not allowing [Sharon] to testify in this cause.” We overrule this point because Rushing did not preserve it for appellate review. See Tex. R. App. P. 33.1(a).
To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the request’s, objection’s, or motion’s context. Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, error is not preserved….The objecting party must also get a ruling—either express or implied—from the trial court. Tex. R. App. P. 33.1(a)(2)(A), (b);….If the trial court refuses to rule, the party preserves error by objecting to that refusal. Tex. R. App. P. 33.1(a)(2)(B). If the trial court does not rule and the party does not object to the refusal to rule, error is not preserved. Id.
The record shows that the trial [*32] court never ruled on whether Sharon could testify as either a fact or rebuttal witness for the defense. Though the trial court raised concerns that Sharon was unavailable as a fact witness because she had not been properly disclosed pursuant to Rule 194.2, it also explicitly explained on multiple occasions that a ruling on her availability was premature because Axiom had not yet rested its case. Rushing did not object to or otherwise refute these statements by the trial court nor did he ever seek a ruling on whether she could testify. In fact, Rushing never attempted to call Sharon as a witness at all; he rested having called only himself to testify.” Rushing v. Divine Homes, LLC, No. 02-21-00397-CV, 2023 Tex. App. LEXIS 818, at *31-32 (Tex. App.—Fort Worth Feb. 9, 2023, no pet. h.)
Your complaint must be timely:
Discovery: “Moreover, METRO has demonstrated that that Ruiz’s responses and/or objections to its written discovery were untimely as they were provided more than 30 days after service. See Tex. R. Civ. P. 193.2(e); 197.2(a) (written responses due within 30 days after service of the interrogatories). Ruiz’s conclusory declaration that her responses were timely is not supported by the record. As such, Ruiz waived her objections to interrogatory number 12.” In re Metro. Transit Auth., No. 14-22-00387-CV, 2023 Tex. App. LEXIS 997, at *12 (Tex. App.—Houston [14th Dist.] Feb. 16, 2023, no pet. h.)
Evidence: “Even if the issue comports with the objection at trial, the objection was untimely. Generally, to preserve error there must be a timely and specific objection to the complained-of evidence. See Tex. R. App. P. 33.1(a)(1)(A); ….A complaint is timely if it is made “as soon as the ground of objection becomes apparent.” Pena v. State, 353 S.W. 3d 797, 807 (Tex. Crim. App. 2011).
Well before J.P. objected, the jury had already heard that pictures and videos, which the investigating officer determined to be child pornography, had been found on J.P.’s cell phone. No objection was raised until the State asked whether text messages that accompanied the pictures and videos included “specific request[s] being made by both parties[.]” J.P.’s objection was too late, and thus, his issue on appeal is not preserved.” In re J.P., No. 10-22-00122-CV, 2023 Tex. App. LEXIS 786, at *9 (Tex. App.—Waco Feb. 8, 2023, no pet. h.)
Expert: “Dr. McGarrahan testified over the course of two days at Robinson’s trial. When both sides stated they had no additional witnesses, Robinson then made a motion to strike Dr. McGarrahan’s testimony arguing her opinion testimony was unreliable and it did not meet the analytical gap test. The State argues Robinson’s reliability objection was untimely. A timely objection must be made to preserve a claim challenging the reliability of an expert’s testimony of appeal. In re Commitment of Dodson, 434 S.W.3d 742, 750 (Tex. App..—Beaumont 2014, pet. ref’d. When there is a reliability challenge to an expert’s opinion requiring the trial court to evaluate the underlying methodology, there must be a timely objection made so the trial court has the opportunity to conduct the analysis. In re Commitment of Grunsfeld, No. 09-09-00279-CV, 2011 WL 662923, at *6 (Tex. App—Beaumont Feb. 24, 2011, pet. denied). Here, because Robinson’s objection was untimely, the trial court did not have the opportunity to evaluate the methodology used by Dr. McGarrahan before her testimony was admitted. See [*14] id. By failing to timely object, Robinson waived appellate review of his complaint that Dr. McGarrahan’s opinions were not reliable. See Tex. R. App. P. 33.1(a).” In re Commitment of Williard Joel Robinson, No. 05-21-00795-CV, 2023 Tex. App. LEXIS 1158, at *13-14 (Tex. App.—Dallas Feb. 23, 2023, no pet. h.)
Summary Judgment: “In his second issue, Macal argues Karam was precluded from using the Uniform Declaratory Judgments Act to seek relief from the trial court. In his third issue, Macal argues the trial court’s judgment was an impermissible collateral attack on the district court’s prior judgment. Neither of these arguments was presented in Macal’s summary judgment response. Because Macal presented these arguments for the first time [*7] in his motion for new trial, he has waived them, and we may not consider them as grounds for reversal.” Macal v. Karam, No. 04-21-00583-CV, 2023 Tex. App. LEXIS 766, at *6-7 (Tex. App.—San Antonio Feb. 8, 2023, no pet. h.)
Summary Judgment: “In its first issue, Priority One contends that the trial court erred by “granting the motion for summary judgment in violation of Tex. R. Civ. Proc. 191.1, as the Appellee did not receive the agreement of the Appellant to file her motion nor did Appellee obtain a court order for good cause amending the docket control order.” Within this issue, Priority One also contends that the trial court’s action of granting a motion for summary judgment “without proper notice of amendment to the [docket control order] violates the Appellant’s right to due process.” [*4] ….As a prerequisite to presenting a complaint on appeal for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint unless the specific grounds were apparent from the context. See Tex. R. App. P. 33.1(a). To preserve error, a party’s argument on appeal must comport with its argument in the trial court….An objection is timely if it is asserted at the earliest opportunity or interposed at a point in the proceedings when the trial court has an opportunity to cure any alleged error. …A complaint is not timely when made for first time in a motion for new trial if the complaint could have been urged earlier…Although Priority One raised its complaint about Rule 191.1 in its motion for new trial, Priority One did not mention Rule 191.1, the absence of an agreement, or any requirement that there be good cause to amend the docket control order when Priority One filed its motion for special exceptions, to strike, and for continuance. Instead, Priority One asked only that Andrado obtain leave [*6] to file the motion for summary judgment or that the trial court amend the docket control order. Thus, any issue regarding compliance with Rule 191.1, the lack of an agreement among the parties, or the necessity for good cause are not preserved for appeal.” Priority One Title, LLC v. Andrado, No. 14-21-00379-CV, 2023 Tex. App. LEXIS 1260, at *3-6 (Tex. App.—Houston [14th Dist.] Feb. 28, 2023, no pet. h.)
You have to comply other pertinent rules:
Continuance: “To preserve error, a motion for a continuance [*11] must be in writing and accompanied by an affidavit….; see Tex. R. Civ. P. 251. There is only one written motion for continuance in the record, but it lacks a supporting affidavit. “[W]hen movants fail to comply with Tex. R. Civ. P. 251’s requirement that the motion for continuance be ‘supported by affidavit,’ [the appellate court will] presume that the trial court did not abuse its discretion in denying the motion.” M.F., 2016 Tex. App. LEXIS 7106, 2016 WL 3678432, at *2 (internal quotation omitted) (quoting Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)). We overrule Father’s second issue.” Brickley v. Joseph-Stephen, No. 03-22-00574-CV, 2023 Tex. App. LEXIS 1367, at *10-11 (Tex. App.—Austin Mar. 2, 2023, no pet. h.)
Evidence: “We next consider Meraz’s argument that the records submitted in support of the motion to compel arbitration were not properly authenticated [*9] and were therefore inadmissible. In particular, Meraz contends that the Solar Defendants failed to accompany their records with either a business records affidavit to establish their authenticity, as provided for in Rule 902(10) of the Texas Rules of Evidence, or a notarized certificate of acknowledgement, as provided for in Rule 902(8).6 And in turn, Meraz contends that the sworn but unnotarized declarations that the Solar Defendants provided—in which their employees attested to the true and correct nature of the records—were insufficient to authenticate the records.
As the Solar Defendants point out, Meraz did not raise any authentication challenges to the records, or any other challenge to the admissibility of the records for that matter, in the trial court. Challenges to the admissibility of evidence based on a failure to authenticate is considered a formal defect that is waived unless a party makes a timely objection to the evidence on that basis in the trial court and obtains a ruling on the objection…. Because Meraz failed to make an authentication objection in the trial court, he has failed to preserve this issue for our review.7 See Howe, 551 S.W.3d at 252 (where party made no objection at trial based on authentication, his authentication argument was waived on appeal).” Solcius, LLC v. Meraz, No. 08-22-00146-CV, 2023 Tex. App. LEXIS 1241, at *8 (Tex. App.—El Paso Feb. 27, 2023, no pet. h.)
Factual Sufficiency: “Texas Rule of Civil Procedure 324 requires a party to move for a new trial before it may complain on appeal about the factual sufficiency of the evidence supporting a jury verdict. See Tex. R. Civ. P. 324(b)(2);…Here, Lara did not move for a new trial but rather moved only for a judgment notwithstanding the verdict asking that the trial court set aside the verdict and “render judgment.” Because Lara did not file a motion for new trial, we cannot consider her complaint on appeal that the evidence was factually insufficient to support the jury’s findings….see also Tex. R. App. P. 33.1(a).” Lara v. Bui, No. 01-21-00484-CV, 2023 Tex. App. LEXIS 1269, at *9 (Tex. App.—Houston [1st Dist.] Feb. 28, 2023, no pet. h.)
All for now. I hope this helps.
Yours, Steve Hayes
email@example.com; 817/371-8759; www.stevehayeslaw.com