Error Preservation in Texas Civil Cases, March 9, 2020

March 9, 2020

Dear All:

I have gotten way behind, owing to an oral argument and some deadlines. I’ve nearly caught up on the stuff over the last month, but I thought I would go ahead an profile this week’s stuff just to get back in the routine.

Table of Contents

One case dealt with preserving a complaint about the right to a jury trial, and apparently there are two lines of cases on the subject

Legal and factual sufficiency complaints as to a bench trial can be raised for the first time on appeal

Temporary Injunction

One case held that a party did not waive its complaint about an order compelling arbitration by complying with that order

Your complaint must be timely

Notice

You have to obtain a ruling on your objection-and one case held that a notation on a docket sheet may not do the trick

Constitution
Discovery
Evidence

The Blurbs

This is a longer blurb than usual, but it has to do with preserving a complaint about the right to a jury trial, and apparently there are two lines of cases on the subject:

Jury trial: “We must also address the Department’s assertion that the mother waived her right to a jury trial. The Department contends that to avoid waiver, the mother was required to either file a new jury demand after the case was extended or to renew her demand immediately before the bench trial began. There is a line of cases holding that “when a party has perfected its right to a jury trial in accordance with Rule 216 but the trial court proceeds to trial without a jury, the party must, to preserve error, either object on the record to the trial court’s action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial.” Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assur. Co., 875 S.W.2d 385, 387-88 (Tex. App.—Dallas 1993, no writ); see In re K.M.H., 181 S.W.3d 1, 8 (Tex. App.—Houston [14th Dist.] 2005, no pet.); In re D.R., 177 S.W.3d 574, 580 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); In re A.M., 936 S.W.2d 59, 61 (Tex. App.—San Antonio 1996, no writ); see also Gammill v. Texas Dep’t of Family & Protective Servs., No. 03-08-00140-CV, 2009 Tex. App. LEXIS 3800, at *10 (Tex. App.—Austin May 22, 2009, pet. denied) (mem. op.). “This is because ‘the right [to a jury trial] in a civil case is not self-executing: to invoke and perfect the right to a jury trial in a civil case a party must first comply with the requirements of rule 216’; once perfected, ‘the right to a jury trial still may be waived expressly or by a party’s failure to act.'” Vardilos v. Vardilos, 219 S.W.3d 920, 923 (Tex. App.—Dallas 2007, no pet.) (quoting Sunwest Reliance, 875 S.W.2d at 387-88).

However, [*12] there are other cases holding that to avoid waiver, a party must simply obtain an adverse ruling from the trial court on her jury demand. See McKern v. McCann, 675 S.W.2d 222, 223-24 (Tex. App.—Austin 1984, writ ref’d); Coleman v. Sadler, 608 S.W.2d 344, 346-47 (Tex. App.—Amarillo 1980, no writ). This is because “[t]he trial court’s adverse ruling on the jury demand remove[s] the jury trial alternative and, in effect,” leaves the party “without a conscious choice between a jury and non-jury trial.” Coleman, 608 S.W.2d at 346; see also Trapnell v. Sysco Food Servs., 850 S.W.2d 529, 547 (Tex. App.—Corpus Christi 1992) (“Merely proceeding to trial in a case in which a trial by jury is unavailable, without more, does not establish waiver of that right.”), aff’d, 890 S.W.2d 796 (Tex. 1994). Cf. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (“Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances.”); Sun Expl. & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987) (“Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.”).

Under either line of cases, the mother preserved her right to a jury trial. Consistent with the Sunwest Reliance line of cases, the record reflects that the mother took “affirmative action” to preserve her right to a jury trial—she objected to the associate judge’s denial of her jury demand by requesting and receiving a de novo hearing on the matter from the district court. [*13] Consistent with McKern and Coleman, the mother obtained an adverse ruling from the district court on her jury demand following the de novo hearing. The adverse ruling removed the possibility of a jury trial and thus left the mother with no choice but to proceed with the bench trial as required by the district court. On this record, we cannot conclude that the mother waived her right to a jury trial by participating in the bench trial.” E. E. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00741-CV, 2020 Tex. App. LEXIS 1713, at *11-13 (Tex. App.—Austin Feb. 28, 2020)

Legal and factual sufficiency complaints as to a bench trial can be raised for the first time on appeal:

Temporary Injunction: “The exchanges reproduced reflect every instance where Vincent’s attorney mentioned the injunction. We do not construe any of Vincent’s attorney’s comments to the district court as an objection. After trial, but before the district court signed the final decree, Vincent requested findings of fact and conclusions of law “with respect to the injunctive relief ordered by the Court,” but he did not file a motion for new trial or any other written motion complaining that the district court abused its discretion. However, HN1 a complaint about the sufficiency of the evidence in a nonjury case may be raised for the first time on appeal, Tex. R. App. P. 33.1(d), and the issue in question was decided by the trial court and not the jury. We will therefore address Vincent’s issue, that “no evidence” supported the injunction, as challenging the legal sufficiency of the evidence underlying the district court’s decision to grant the injunction [*7] regarding” a woman and her daughter. Jackson v. Jackson, No. 03-19-00014-CV, 2020 Tex. App. LEXIS 1960, at *6-7 (Tex. App.-Austin Mar. 6, 2020).

Here is an interesting case holding that a party did not waive its complaint about an order compelling arbitration by complying with that order:

Arbitration: “Gonzalez further argues that PCB waived its complaint because it cooperated with the trial court and opposing counsel in the arbitration process. However, PCB had already filed a motion to compel arbitration in accordance with AAA rules; the trial court held a contested hearing regarding the matter; and the trial court ruled adversely to PCB’s motion and position at the hearing. HN3 Thus, PCB’s attempt to comply with the trial court’s order without agreeing to the ruling itself is not an express or implied waiver. See In re Lennar Homes of Texas Sales & Mktg., Ltd., 2015 Tex. App. LEXIS 7275, 2015 WL 4366046, at *2 (holding that a motion to appoint an AAA mediator, a contested hearing on that motion, an adverse ruling, and subsequent compliance with the trial court’s ruling is not an express or implied waiver). Therefore, we hold that PCB did not waive its complaint.” PlainsCapital Bank v. Gonzalez, No. 13-18-00272-CV, 2020 Tex. App. LEXIS 1902, at *5 (Tex. App.-Corpus Christi Mar. 5, 2020)

Your complaint must be timely:

Notice: “While a Rule 91a motion to dismiss must be filed twenty-one days before the hearing, the nonmovant is entitled to only fourteen days’ notice of the hearing. Tex. R. Civ. P. 91a.3(b), 91a.6. Appellants received more than fourteen days’ notice of the hearing and did not complain about the late filing until their motion to set aside filed after the hearing. To preserve a complaint about lack of notice, a party must bring the lack of adequate notice to the trial court’s attention at the hearing and object to the hearing going forward or move for a continuance. Tex. R. App. P. 33.1(a);” Envision Realty Grp., LLC v. Chen, No. 05-18-00613-CV, 2020 Tex. App. LEXIS 1959, at *7 (Tex. App.-Dallas Mar. 5, 2020),

You have to obtain a ruling on your objection-and one case held that a notation on a docket sheet may not do the trick:

Constitution: “In a multifarious issue one, Mother contends that she was denied due process and equal protection because (1) the presiding and associate judges should have been recused, (2) the ad litem for the children should have been disqualified [*58] and removed, (3) the Department violated provisions of the Indian Child Welfare Act, and (4) she was not permitted an opportunity to visit her children because the Department did not develop an appropriate visitation plan.
However, to preserve a complaint for appellate review, the record must show that the complaint was made to the trial court, and that the trial court either ruled on the complaint or refused to rule and the complaining party objected to the trial court’s refusal to rule. See Tex. R. App. P. 33.1. If a party fails to do this, error is not preserved, and the complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991). The record in this case does not show any rulings on these complaints; thus, the issues are waived. n. 9 n. 9 To the extent that Mother claims that the docket sheet shows that motions raising these issues were denied, we note that “a docket entry may not take the place of an order or judgment.” Pickell v. Guar. Nat. Life Ins. Co., 917 S.W.2d 439, 441 (Tex. App.-Houston [14th Dist.] 1996, no writ). Likewise, a docket sheet is not part of the record on appeal and cannot be relied on to preserve error. Mason v. Randall’s Food Markets, Inc., 01-01-00199-CV, 2001 Tex. App. LEXIS 7380, 2001 WL 1344355, at *1 (Tex. App.-Houston [1st Dist.] Nov. 1, 2001, no pet.).” In the Interest of A.A.H, Nos. 01-19-00612-CV, 01-19-00748-CV, 2020 Tex. App. LEXIS 1915, at *57-58 (Tex. App.-Houston [1st Dist.] Mar. 5, 2020)

Discovery: “Harrington asserts that one or more of the Palms Parties did not provide timely verifications of the second and third sets of interrogatories he propounded and that the trial court ignored his “motion to compel interrogatories.” HN3 To preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial [*10] court of the complaint. Tex. R. App. P. 33.1(a). The failure to obtain an adverse ruling in the trial court operates as a waiver of review of the alleged error on appeal. Neely v. Comm’n for Lawyer Discipline, 302 S.W.3d 331, 351 (Tex. App.-Houston [14th Dist.] 2009, pet. denied). The record contains no ruling on Harrington’s motion to compel. Without an adverse ruling, Harrington did not preserve his complaint for appellate review.” Harrington v. Hawthorne-Midway Palms, LLC, No. 14-18-00460-CV, 2020 Tex. App. LEXIS 1954, at *9 (Tex. App.-Houston [14th Dist.] Mar. 5, 2020),

Evidence: “To preserve a complaint for appellate review: (1) a party must complain to the trial court by way of a timely request, objection, or motion; and (2) the trial court must rule or refuse to rule on the request, objection, or motion. Tex. R. App. P. 33.1(a). In a summary judgment proceeding, a party asserting objections should obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver. Cty. of El Paso v. Baker, 579 S.W.3d 686, 694 (Tex. App.-El Paso 2019, no pet.). This same concept has been applied to pleas to the jurisdiction. Id. The record shows no ruling on any of Appellants’ objections.” Preston v. M1 Support Servs., L.P., No. 02-18-00348-CV, 2020 Tex. App. LEXIS 1922, at *39 (Tex. App.-Fort Worth Mar. 5, 2020

As always, there were a bunch of cases in which parties failed to raise their complaint in the trial court.

That’s all for now.  Y’all have a good week.

Yours, Steve Hayes

shayes@stevehayeslaw.com; www.stevehayeslaw.com

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