Error Preservation in Texas Civil Cases, May 11, 2020

May 11, 2020

Dear All:
I hope you all remain safe and well.  I failed to post anything last week–I had good intentions, but wisdom teeth extractions got in the way.  Those were truly a definition of fun I’d either not previously heard, or at least not fully appreciated.

So here is what we have from the last couple of weeks:

Table of Contents

  • The Supreme Court reminded us that “collateral estoppel is an affirmative defense that must be pleaded unless tried by consent”
  • One can first raise ripeness as a complaint for the first time on appeal
  • We have a few examples as to how to preserve your complaints–one, involving a hearsay objection based on a document being prepared in anticipation of litigation, and one about being denied an evidentiary hearing on a petition to annul a marriage
  • You must comply with other pertinent rules to preserve your complaint–such as complaining about the efforts of another to prove up Attorneys Fees using 18.001 Affidavits (including the interplay between a failure to segregate fees, and a complaint about reasonableness and necessity), and complaining about findings or capacity.
  • You have to get a ruling on your complaint (here, about discovery)–which doubles as a way to confirm you presented your complaint to the trial court
  • The complaint you raise on appeal must be the complaint you raised in the trial court

Consent
Evidence

  • Be careful not to waive a complaint by not including claims or affirmative defenses in subsequent pleading amendments

The Blurbs

The Supreme Court reminded us that “collateral estoppel is an affirmative defense that must be pleaded unless tried by consent”:

Collateral Estoppel: “The Hurtados contend we should not reach the question whether to recognize an exception in this case because the insurer is collaterally estopped from relitigating facts regarding Guevara’s liability for the accident that were established in their underlying suit against her. But the Hurtados did not preserve this issue for our review. Collateral estoppel is an affirmative defense that must be pleaded unless tried by consent. Tex. R. Civ. P. 94; Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494-95 (Tex. 1991). Because the Hurtados raised collateral estoppel for the first time at a summary judgment hearing and said nothing in writing on the matter until their appellate briefing, they forfeited the defense. See Roark, 813 S.W.2d at 494-95.” Loya Ins. Co. v. Avalos, No. 18-0837, 63 Tex. Sup. Ct. J. 969 n.3, 2020 Tex. LEXIS 373, at *8 (May 1, 2020)

One can first raise ripeness as a complaint for the first time on appeal:

Ripeness: “In its first issue, eQuine urges the trial court lacks subject-matter jurisdiction over what eQuine characterizes as “Jacoby’s premature Indemnity Claims.” eQuine did not file a plea to the jurisdiction, did not specially except to Jacoby’s pleadings, and did not specifically [*7] deny Jacoby’s assertion that he has performed all conditions precedent to recovery of his damages, attorneys’ fees, and expenses. See Tex. R. Civ. P. 54. Ripeness is an element of subject-matter jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). HN2 Because subject-matter jurisdiction is essential to the authority of a court to decide a case, it cannot be waived and may be raised for the first time on appeal. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000). Accordingly, notwithstanding eQuine’s failure to raise the issue in the trial court, we will address the issue here. Because eQuine did not specifically deny Jacoby’s assertion that he performed all conditions precedent, we will consider the averments in Jacoby’s pleading in light of controlling authority on the issue of ripeness.” eQuine Holdings, LLC v. Jacoby, No. 05-19-00758-CV, 2020 Tex. App. LEXIS 3727, at *6-7 (Tex. App.—Dallas Apr. 30, 2020)

Here are a few examples as to how to preserve your complaints–one, involving a hearsay objection based on a document being prepared in anticipation of litigation, and one about being denied an evidentiary hearing on a petition to annul a marriage:

Evidence: “In his first issue, Joiner contends the trial court [*13] erred by admitting Dr. Turner’s CV, report, and opinion letter into evidence under the business-records exception to the rule against the admission of hearsay evidence. Joiner argues that all three of these documents were prepared in anticipation of trial and, therefore, were not admissible as business records. In response, the State asserts that because Joiner’s issue on appeal does not comport with his objections in the trial court, he did not properly preserve this issue for appellate review. . . .The State argues that Joiner did not object to the admission of the report on the ground that it was prepared in anticipation of litigation. We disagree. On the first day of trial, prior to jury selection, the trial court conducted a hearing to consider Joiner’s motion to exclude the State’s witness list and the State’s list of witnesses with knowledge. Specifically, Joiner’s attorney sought to exclude Dr. Turner’s testimony. The State responded that it did not intend to call Dr. Turner as an expert; instead, Dr. Turner would testify as the custodian of the business records the State intended to use as trial exhibits, including Dr. Turner’s CV, his report, and a subsequent letter re-confirming the opinions he provided in his report. The judge noted that Joiner’s attorney wanted him to exclude not only Dr. Turner’s testimony but all of the records that the State had tendered and asked, “is that correct?” Joiner’s attorney responded: “Yes, Your Honor. The initial bunch of records were completed in furtherance of litigation, not for a business purpose record. And we would seek [*16] to strike those because they were completed in litigation. In addition, the CV of the expert would only be going to bolster those records that were created in furtherance of litigation.” The trial court allowed Dr. Turner to testify outside the presence of the jury. Dr. Turner testified that he was the custodian of his CV, his report pertaining to Joiner, and his subsequent opinion letter reconfirming the opinions stated in his report. Joiner’s attorney again objected, arguing that the CV and letter were not regularly kept business documents but were prepared for this litigation. The trial court admitted the records over Joiner’s objections. For Joiner’s objection to have been sufficient, it had to be sufficiently specific “to make the trial court aware of the complaint.” Tex. R. App. P. 33.1(a)(1)(A). During the discussion of Joiner’s motion to exclude the State’s witness list, the prosecutor maintained that the report would be offered as a business record, and Joiner’s counsel argued the report was prepared in anticipation of litigation. Even though the admissibility of the report was not the precise matter before the trial court when Joiner first made the objection, it was relevant to the discussion of the motion [*17] to exclude Dr. Turner as an expert witness. Further, it appears from the record that Joiner’s attorney renewed this objection at the close of Dr. Turner’s testimony. Accordingly, we conclude this objection was preserved for appellate review.” In re Commitment of Joiner, No. 05-19-00144-CV, 2020 Tex. App. LEXIS 3570, at *12-17 (Tex. App.—Dallas Apr. 28, 2020)

Hearing: “The guardians contend Laura waived her evidentiary hearing argument, but the record indicates otherwise. After the trial court granted the guardians’ petition and annulled the marriage, Laura objected “to not being allowed to produce evidence at a final hearing.” The trial court explained why it disagreed and reiterated that the annulment order was final. We conclude Laura preserved her complaint for appeal. See Tex. R. App. P. 33.1(a); Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164, 166 (Tex. 2018) (per curiam); In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).” In re Marriage of Thrash, No. 04-19-00236-CV, 2020 Tex. App. LEXIS 3596, at *8 (Tex. App.—San Antonio Apr. 29, 2020)

You must comply with other pertinent rules to preserve your complaint:

Attorneys Fees (18.001 Affidavits): “To establish the reasonableness of their fees, pursuant to civil practice and remedies code § 18.001(b), GPM filed and served prior to trial several affidavits signed by Mark Enoch. Mark was also designated as an expert, and his affidavits included his opinion that the services and fees described in the invoices attached to his affidavits were reasonable and necessary, as well as his testimony authenticating the invoices and demonstrating their admissibility as business records. The Namdars did not file any counter-affidavits [*29] and the trial court struck the experts they designated to testify regarding the necessity of and reasonableness of GPM’s attorney fees. The Namdars cross-examined Mark extensively regarding whether fees incurred to dismiss the Namdars’ defenses and counterclaims were “caused by” and recoverable in furtherance of GPM’s contract claim. Despite the cross-examination and arguments in closing that GPM had failed to segregate fees unrelated to its contract claim, the jury awarded the exact amount requested by GPM, $1,273,97.00 for work through trial, with additional amounts awarded for post-judgment and appellate work. GPM contends that in failing to file counter-affidavits the Namdars waived their challenge to the reasonableness and necessity of GPM’s fees. A section 18.001 affidavit, uncontested by a counter-affidavit, provides admissible testimony supporting the reasonableness and necessity of the charges proven up by the affidavit, and upon assertion of a proper objection, prohibits controverting evidence on those issues. . . .The rule seeks to obviate the need for expert testimony at trial to establish reasonableness and necessity.. . .”Although not conclusive as to the amount of damages, a [*30] proper section 18.001 affidavit constitutes legally sufficient evidence to support findings of fact as to reasonableness and necessity.” Id.; Hong v. Bennett, 209 S.W.3d 795, 800 (Tex. App.—Fort Worth 2006, no pet.) (“An uncontroverted section 18.001(b) affidavit provides legally sufficient—but not conclusive—evidence to support a jury’s finding that the amount charged for a service was reasonable and necessary.”). Such an affidavit does not establish causation between the injury and the fees at issue, however, or establish as a matter of law entitlement to the requested fees. Tex. Civ. Prac. & Rem. Code § 18.001 (“The affidavit is not evidence of and does not support a finding of the causation element of the cause of action that is the basis for the civil action.”); . . . . Although we question the extent to which the Namdars’ arguments and examination permissibly involved causation as opposed to the impermissible necessity of the services for which the fees were incurred, GPM’s failure to object waived any argument that the section 18.001 affidavits precluded a challenge to whether GPM’s fees were reasonable and necessary. We thus consider the Namdars’ segregation arguments in this context.” Namdarkhan v. Glast, Phillips & Murray, P.C., No. 05-18-00802-CV, 2020 Tex. App. LEXIS 3499, at *28-30 (Tex. App.—Dallas Apr. 24, 2020)

Capacity: “The jury charge, which was submitted without defense objection, did not ask whether the landlord committed the statutory violations, but whether Kessling committed the violations. [*7] Kessling never filed a verified denial pursuant to Rule 93 asserting that he was not liable in the capacity in which he was sued or that he was not the proper party; he filed only a general denial to the lawsuit. Tex. R. Civ. P. 93(2), (4).   A party who does not follow rule 93’s mandate waives any right to complain about the matter on appeal. . . . Whether there is a defect of parties or whether a defendant is sued in a capacity he should not be, he must file a verified denial to preserve his complaint.  . . . Kessling did not do so and the jury charge submitted Kessling by name. He has waived the issue. See Tex. R. App. P. 33.1(a).” Kessling Servs. v. Manning, No. 13-19-00076-CV, 2020 Tex. App. LEXIS 3836, at *6-7 (Tex. App.—Corpus Christi May 7, 2020)

Findings and Conclusions: “Mother requested that the trial court issue findings of fact and conclusions of law in support of its name-change decision. But when the trial court failed to respond, Mother did not file a notice of past due findings, which waives any challenge based on the failure to file findings. See Ad Villarai, LLC v. Chan II Pak, 519 S.W.3d 132, 137 (Tex. 2017) (“We have held that a party waives its right to challenge a failure to file findings if it does not file a notice of past due findings as rule 297 requires.”).” In the Interest of I.D.Z., No. 08-18-00202-CV, 2020 Tex. App. LEXIS 3707, at *6 n.5 (Tex. App.—El Paso Apr. 30, 2020)

You have to get a ruling on your complaint–which doubles as a way to confirm you presented your complaint to the trial court:

Discovery, etc.: “Brady also complains that the trial court refused to let Brady testify at the special appearance hearing, failed to require Kane to be deposed, and refused to compel Kane to respond to Brady’s jurisdictional discovery. Brady waived [*28] those complaints by failing to request the relief from the trial court. See TEX. R. APP. P. 33.1(a). Brady’s counsel did not call Brady to the stand to testify at the hearing, nor did the trial court refuse either party the right to call witnesses at the hearing. Brady’s counsel admitted at the hearing that he had not requested to depose Kane and stated that he thought they had “enough to defeat the special appearance as it is.” Similarly, Brady did not file a motion to compel against Kane to obtain responses to jurisdictional discovery. Moreover, Brady did not seek a continuance of the special appearance hearing to obtain Kane’s deposition or to seek an order compelling the discovery. Brady, therefore, waived these complaints. We overrule Brady’s third and fourth issues.” Brady v. Kane, No. 05-18-01105-CV, 2020 Tex. App. LEXIS 3589, at *27-28 (Tex. App.—Dallas Apr. 28, 2020)

The complaint you raise on appeal must be the complaint you raised in the trial court:

Consent: “R.R. first challenges the Rule 11 agreement between the parties regarding the managing conservatorship of L.W.1, D.R., A.M.1, A.M.2, and P.R. According to R.R., there was no written agreement, but an oral agreement to which her court appointed counsel agreed and which she never “personally and orally” [*6] approved. At trial, however, R.R. never complained that the agreement had not been personally and orally approved by her. And in her motion for new trial, she alleged being coerced into entering the agreement, but did not allege that she had not personally and orally approved the agreement. HN3 As a prerequisite to presenting a complaint 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 that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). Here, R.R.’s complaints in her motion for new trial differ from her complaint on appeal. Thus, she has waived this issue on appeal. See id.; see also In Interest of M.M.W., 536 S.W.3d 611, 612-13 (Tex. App.—Texarkana 2017, no pet.) (objection at trial that does not comport with complaint on appeal preserves nothing for review).” In re L.W., No. 12-19-00375-CV, 2020 Tex. App. LEXIS 3718, at *5-6 (Tex. App.—Tyler Apr. 30, 2020)

Evidence: “First, Appellant’s hearsay objection in the trial court does not comport with his argument on appeal that the affidavit is conclusory. The differing theories result in waiver of the issue. See Jem Int’l, Inc. v. Warner Props., L.P., No. 07-17-00042-CV, 2018 Tex. App. LEXIS 7764, at *9 (Tex. App.—Amarillo Sept. 24, 2018, no pet.) (mem. op.) (citing Knapp v. Wilson N. Jones Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.)). Second, there is nothing in the record to indicate the trial court ruled on Malcom’s hearsay objection, even implicitly. See Tex. R. App. P. 33.1(a)(2). See also In re R.A.W., 07-13-00316-CV, 2015 Tex. App. LEXIS 3039, at *12 (Tex. App.—Amarillo March [*15] 27, 2015, no pet.) (mem. op.). Without obtaining a ruling, Malcom has again forfeited his complaint.” Malcom v. Cobra Acquisitions, LLC, No. 07-19-00405-CV, 2020 Tex. App. LEXIS 3732, at *14-15 (Tex. App.—Amarillo Apr. 30, 2020)

Be careful not to waive a complaint by not including claims or affirmative defenses in subsequent pleading amendments:

Affirmative Defenses: “Similarly, on summary judgment motions, the trial court dismissed the Namdars’ affirmative defenses. The Namdars, like the complaining party in these three cases, complain on appeal that the trial court erred in dismissing their affirmative defense. The holdings in Randolph, Dolenz, and Radelow mandate the conclusion here. By filing amended pleadings that [*27] excluded their “accord and compromise (novation)” defense, the Namdars waived any error the trial court may have committed in dismissing it. We overrule the Namdars’ fifth issue.” Namdarkhan v. Glast, Phillips & Murray, P.C., No. 05-18-00802-CV, 2020 Tex. App. LEXIS 3499, at *26-27 (Tex. App.—Dallas Apr. 24, 2020)

Finally, always make sure to preserve your complaint by raising it in the trial court.

I hope this helps.  Y’all stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; www.stevehayeslaw.com; 817/371-8759

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