March 9, 2022
Lots of activity this last week, including the Texas Supreme Court’s extensive discussion about what qualifies as a ruling on an objection to summary judgment evidence, and a couple of courts talking about when complaints were sufficiently specific:
Table of Contents
Courts don’t often address the specificity of the complaint, but multiple courts did this week, reminding us that “the cardinal rule for preserving error is that an objection must be clear enough to give the trial court an opportunity to correct it.”
The Supreme Court held that an on-the-record ruling on objections to summary judgment evidence is sufficient under TRAP 33.1–but that the best practice is to secure a written order on the objection
Summary Judgment Evidence
A complaint that an affidavit is conclusory can first be raised on appeal-as can a complaint that a summary judgment motion was not legally sufficient to support the judgment granted
Your complaint must be timely
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Summary Judgment Evidence
Courts don’t often address the specificity of the complaint, but multiple courts did this week, reminding us that “the cardinal rule for preserving error is that an objection must be clear enough to give the trial court an opportunity to correct it”:
Attorney’s Fees: “Here, TCS has not preserved its complaint for review. In its motion for new trial, TCS stated it “objects to the judgment as to the amount of damages, attorney’s fees under Chapter 38 which are not segregated, and any other objections that TCS can make wherein the judgment cannot stand as a default based upon [Ski Team]’s pleadings and evidence.” “[T]he cardinal rule for preserving error is that an objection must be clear enough to give the trial court an opportunity to correct it.” Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008). This statement does not sufficiently apprise the trial court that section 38.001 does not authorize attorney’s fees to be awarded against limited liability companies. Thus, TCS failed to preserve its complaint that section 38.001 does not authorize a person to recover attorney’s fees against a limited liability company by failing to state its objection “with sufficient specificity to make the trial court aware of the complaint.” See Tex. R. App. P. 33.1(a). Accordingly, we overrule TCS’s third issue.” Tex. Constr. Specialists, L.L.C. v. Ski Team VIP, L.L.C., No. 14-20-00124-CV, 2022 Tex. App. LEXIS 1475, at *23-24 (Tex. App.—Houston [14th Dist.] Mar. 3, 2022)
Legal Sufficiency: “In a single issue on appeal, Foster argues that ‘[t]he Arizona offense of Lewd and Lascivious Acts (with a Child) is not ‘substantially similar’ to an enumerated Texas sexually violent offense.’….In the trial court, Foster did not specifically challenge whether the offense under Arizona law constitutes a ‘sexually violent offense’ and never argued that the elements of the Arizona law prohibiting lewd and lascivious acts with a child are not substantially similar to the elements of the relevant Texas law. In fact, the language and elements of the Arizona law were never provided to or discussed in the trial court; rather, the Arizona judgment merely provided that Foster was guilty of ‘Lewd & Lascivious Acts with a Child Under the Age of 15 years, a felony.’ Moreover, the trial court was never asked to take judicial notice of the Arizona law….Foster’s sufficiency challenge on appeal is dependent on this Court taking judicial notice of the Arizona law to overcome this presumption in determining whether the elements of the Arizona law are ‘substantially similar’ to the elements of the enumerated Texas offenses that constitute sexually violent offenses. But we cannot conclude that Foster preserved this issue for appellate review. ‘Generally, a no-evidence objection directed to a single jury issue is sufficient to preserve error without further detail.’ Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008). But ‘stock objections may not always preserve error,’ and ‘the cardinal rule for preserving error is that an objection must be clear enough to give the trial court an opportunity to correct it.’ Id. at 387-88 (citing Tex. R. Civ. P. 321; Barron v. James, 198 S.W.2d 256, 260 (Tex. 1946)); see Tex. R. Civ. P. 322; Tex. R. App. P. 33.1.
By failing to request judicial notice of the Arizona law and failing to argue or provide any information to the trial court that the elements of the Arizona and Texas laws were not substantially similar, Foster’s general no-evidence point of error did not present an objection ‘clear enough to give the trial court an opportunity to correct’ the alleged erroneous directed verdict based on the substantial similarity of the Texas and Arizona laws. See Arkoma Basin, 249 S.W.3d at 387-88.” In re Foster, No. 03-21-00203-CV, 2022 Tex. App. LEXIS 1549, at *5-9 (Tex. App.—Austin Mar. 4, 2022)
The Supreme Court held that an on-the-record ruling on objections to summary judgment evidence is sufficient under TRAP 33.1–but that the best practice is to secure a written order on the objection:
Summary Judgment Evidence: “A trial court’s on-the-record, unequivocal oral ruling on an objection to summary judgment evidence qualifies as a ruling under Texas Rule of Appellate Procedure 33.1, regardless of whether it is reduced to writing.
We do not view this holding as a significant shift regarding consideration of a reporter’s record in reviewing a summary judgment on appeal….Because issues, grounds, and testimony in support of and in opposition to summary judgment may not be presented orally, a reporter’s record of such a hearing is generally unnecessary for appellate purposes….
Our holding today does not alter that general principle. As a practical matter, sometimes summary judgment hearings are transcribed, and sometimes they are not; the best practice for a party objecting to summary judgment evidence is to secure a written order on the objection from the trial court. But if no such order is issued, and the reporter’s record of the hearing reveals an unequivocal oral ruling on the objection, that ruling is sufficient for error-preservation purposes.” Fieldturf United States v. Pleasant Grove Indep. Sch. Dist., No. 20-0507, 2022 Tex. LEXIS 217, at *20-22 (Mar. 4, 2022)
A complaint that an affidavit is conclusory can first be raised on appeal-as can a complaint that a summary judgment motion was not legally sufficient to support the judgment granted:
Affidavit: “HCAD also contends that Jones’ affidavit “merely repeats the language of the statute” and therefore is conclusory. A party may raise an objection that an affidavit is conclusory for the first time on appeal….A conclusory statement expresses a factual inference without providing the underlying facts to support that conclusion….Here, Jones’ affidavit is not conclusory. Jones provides a factual basis sufficient to support his assertion that Zeon’s original freeport-exemption applications contained a clerical error. Specifically, Jones stated:
When ATA completed the answer on all four original Freeport applications for the subject accounts on or about in April 2018, it accidentally and inadvertently and incorrectly looked at the information in Column D of Zeon’s spreadsheet and wrote, copied, transcribed, entered and/or retrieved Zeon’s computer spreadsheet data from the wrong column and listed the figure of $46,988,751.00, instead of what should have been written there from Column F, line 202.
We reject HCAD’s contention that Jones’ affidavit is conclusory.” Zeon Chems., L.P. v. Harris Cty. Appraisal Dist., No. 14-20-00798-CV, 2022 Tex. App. LEXIS 1476, at *30-31 (Tex. App.—Houston [14th Dist.] Mar. 3, 2022)
Summary Judgment: “We further note that, while the Republican Party did not make its causation argument in its summary-judgment response, typical preservation rules do not apply in the summary-judgment context. Cf. Tex. R. App. P. 33.1. Rather, “an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment” need not be preserved in the trial court to be argued on appeal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993).” Republican Party of Tex. v. Hous. First Corp., No. 14-20-00744-CV, 2022 Tex. App. LEXIS 1478, at *4 (Tex. App.—Houston [14th Dist.] Mar. 3, 2022)
Your complaint must be timely:
Constitution: “Finally, we address Morrison’s contention that Respondent’s clarification order violated due process. Morrison complains that the clarification order expanded on the original assignment and deprived him of the right to be “tried by the duly elected judge of Wood County, Texas without the due process of law in clear violation of the Fourteenth Amendment and Article I, Section 19 of the Texas Constitution.” According to Morrison, the clarification order “perpetually empowered” Judge Parish to hear the case, regardless of whether plenary power existed and he would be without the right to object under Section 74.053(b). Morrison maintains that the order “acts as a new assignment.”
However, the “statute does not confer a new opportunity to object when a visiting judge who has already heard matters in the case is reassigned by a new assignment order.” Canales, 52 S.W.3d at 704. As previously discussed, Judge McCampbell assumed office several months before Morrison objected to Judge Parish’s assignment. And Judge Parish had already presided over hearings and taken action, including at Morrison’s request, pertaining to Wilson’s enforcement action. Morrison participated in hearings and requested and received relief from Judge Parish in the enforcement action long before the clarification order was signed. As the Texas Supreme Court has stated, ” Once an assigned judge has heard any matter in a case, the parties have waived the right to object to that judge under section 74.053 of the Government Code.” Id. Morrison knew, well in advance of filing his objection, that Judge Parish was presiding over Wilson’s enforcement action. Accordingly, we conclude that Morrison waived his due process complaint. See id.; see also Matter of Marriage of Mohamed, No. 14-18-01029-CV, 2021 Tex. App. LEXIS 6746, 2021 WL 3629245, at *6 (Tex. App.—Houston [14th Dist.] Aug. 17, 2021, no pet.) (mem. op.) (” Even constitutional complaints, such as due process violations, are generally waived on appeal in the absence of a timely and sufficiently specific motion, objection, or request in the trial court”); Holden v. Holden, 456 S.W.3d 642, 653 (Tex. App.—Tyler 2015, no pet.) (“constitutional issues, such as due process claims, must be properly raised in the trial court or they are waived on appeal”).” In re Morrison, No. 12-22-00001-CV, 2022 Tex. App. LEXIS 1382, at *19-21 (Tex. App.—Tyler Feb. 28, 2022)
Judge: “Additionally, the record reflects that Judge Parish held contempt hearings on June 3, July 21, and July 29 and, according to the docket sheet, signed an order for appointment of receiver on June 28, as well as the order on Morrison’s motion for directed verdict on July 13. Accordingly, Morrison’s objections to Judge Parish’s assignment came after she had already conducted hearings in the enforcement action. Morrison’s objection was therefore untimely. See Canales, 52 S.W.3d at 704 (“Once an assigned judge has heard any matter in a case, the parties have waived the right to object to that judge under section 74.053 of the Government Code”); see also J.H.K., 2021 Tex. App. LEXIS 9475, 2021 WL 5500523, at *3 ( objection untimely where made after assignment and after assigned judge had already conducted hearing); see also e.g. In re H.L.F., No. 12-11-00243-C, 2012 Tex. App. LEXIS 9945, 2012 WL 5993726, at *3 (Tex. App.—Tyler Nov. 30, 2012, pet. denied) (judge signed temporary order on January 11, 2010, and presided over five hearings before objection regarding absence of assignment order, thus, objection was not timely).” In re Morrison, No. 12-22-00001-CV, 2022 Tex. App. LEXIS 1382, at *18-19 (Tex. App.—Tyler Feb. 28, 2022)
Judge: “B.C. filed his modification petition on August 13, 2021. Subsequently, M.A. filed an answer, a counterpetition to modify, a motion to dismiss B.C.’s motion to enforce travel restrictions, and a motion for judge to confer with child. Judge Marshall granted the motion to dismiss on October 15. Importantly, Judge Marshall conducted hearings on August 23 and October 29, in which M.A. participated without objection, and signed a temporary order on November 4. As soon as it became apparent that Judge Marshall intended to preside over the modification proceeding, M.A. was under a duty to object before Judge Marshall presided over any hearing in the modification proceeding. See id. at 702. Not until December 20, when she filed her request for assignment of visiting judge and motion to declare orders void, did M.A. begin to complain about Judge Marshall presiding over the modification proceeding. And M.A. filed her formal objection on December 22, after Judge Marshall had already conducted hearings in the modification proceeding. Because Judge Marshall had already heard a matter in the modification proceeding, Texas Supreme Court precedent makes clear that M.A. did not have a new opportunity to object when Judge Marshall was reassigned by the December 22 order and she waived her right to object…. See id. at 704; see also J.H.K., 2021 Tex. App. LEXIS 9475, 2021 WL 5500523, at *3 (objection untimely where made after assignment and after assigned judge had already conducted hearing); see also e.g. In re H.L.F., No. 12-11-00243-CV, 2012 Tex. App. LEXIS 9945, 2012 WL 5993726, at *3 (Tex. App.—Tyler Nov. 30, 2012, pet. denied) (judge signed temporary order on January 11, 2010, and presided over five hearings before objection regarding absence of assignment order, thus, objection was not timely).
In accordance with Canales, we conclude that because M.A. lodged an untimely objection to Judge Marshall’s presiding over the modification proceeding, she cannot demonstrate that Judge Marshall abused his discretion by failing to set aside the November 4 order or that Judge Charles abused his discretion by overruling her objection. Accordingly, she has not shown herself entitled to mandamus relief.” In re M.A., No. 12-22-00016-CV, 2022 Tex. App. LEXIS 1386, at *6-8 (Tex. App.—Tyler Feb. 28, 2022)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
firstname.lastname@example.org; 817/371-8759; www.stevehayeslaw.com