Error Preservation in Texas Civil Cases, May 13, 2019

Dear All:

Table of Contents

The Supreme Court was busy on error preservation recently, holding:

Now, for the specific blurbs.

The Supreme Court was busy on error preservation recently, holding:

a motion to reform a judgment is a timely means in which to challenge a judgment because it relied on an improper theory of recovery–and furthermore approving the specificity with which the party raised its complaint:


Termination of a lease: “After a careful review of the record, [*11] we agree with Rohrmoos that the Davidow issue is preserved for our review. Importantly, the availability of termination as a remedy did not become an issue until the trial court entered judgment authorizing termination. When that happened, Rohrmoos promptly filed a motion to reform the judgment or, alternatively, for a new trial. In that motion, Rohrmoos asserted that “under Texas law, a tenant claiming material breach of lease is not entitled to terminate the lease unless the lease expressly provides for that remedy.” Rohrmoos cited Davidow, saying that “[t]his is still the law in Texas today.” This gave the trial court notice of Rohrmoos’s complaint that the verdict and judgment were at least partially based on a theory of recovery that Rohrmoos contends did not support termination as a matter of law. Cf. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 482 (Tex. 2017) (holding that the preservation requirement was satisfied because the defendant raised the issue of an improper theory of recovery that could not support the judgment in a motion for judgment notwithstanding the verdict). Regarding the jury charge, there was no need to object because it did not mention termination as a remedy or ask whether UTSW was entitled to terminate. . . . When the trial court pressed for case law supporting this position, Rohrmoos’s counsel responded, “I’m hanging my hat on Davidow, . . . [which says] as a matter of Texas law, a breach of the duty to repair is only remediable by damages.” In no sense can we say that Rohrmoos failed to inform the trial court of its theory under Davidow. Indeed, HN3 our law on preservation is built almost entirely around putting the trial court on notice so that it can cure any error. See Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014) (“Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.” (citing In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003))). Affording trial courts [*14] an opportunity to correct errors conserves judicial resources and prevents an appeal by ambush or otherwise having to order a new trial. Id. Here, there is no such concern because the trial court was given an opportunity to cure any error when it entered judgment and later in response to Rohrmoos’s post-judgment motion. Rohrmoos properly preserved this issue in the trial court.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 Tex. LEXIS 389, at *10-11, 13-14 (Apr. 26, 2019)

that a party does not need to include a policy argument in its answer in order to raise that argument in a summary judgment response in support of its properly pled limitations defense:


Pleading: “We first consider whether, by failing to plead it in his answer, Godoy waived the argument under Simpson that his contractual abandonment of the statute [*9] of limitations is void. Rule 94 of the Texas Rules of Civil Procedure requires that “[i]n a pleading to a preceding pleading, a party shall set forth affirmatively” any matter “constituting an avoidance or affirmative defense.”… “Whenever possible, we reject form-over-substance requirements that favor procedural machinations over reaching the merits of a case.” Dudley Constr., Ltd. v. Act Pipe & Supply, Inc., 545 S.W.3d 532, 538 (Tex. 2018). We question whether a legal argument in support of an already-pleaded affirmative defense amounts to its own “matter constituting an avoidance or affirmative defense” under Rule 94. Requiring Godoy, on pain of waiver, to amend his answer just to make a purely legal argument during summary judgment briefing—related to a matter he has already pleaded—does not serve the stated purpose of the Rules of Civil Procedure, which is to “obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” Tex. R. Civ. P. 1. n. 1 n. 1 “‘This court has labored long and hard to remove as many procedural traps from our rules as possible. Litigants are entitled to have their disputes resolved on the merits, not on unnecessary and arcane points that can sneak up on even the most diligent of attorneys.’ Tricky procedural rules threaten substantive rights.” In re Brookshire Grocery Co., 250 S.W.3d 66, 73-74 (Tex. 2008) (Hecht, J., dissenting) (quoting Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 643 (Tex. 1989) (Ray, J., concurring)).” Godoy v. Wells Fargo Bank, N.A., No. 18-0071, 2019 Tex. LEXIS 443, at *8 (May 10, 2019)

that it did not have to determine whether Rule 94 required the party to amend its answer to plead a public-policy argument, because the other side’s response to a motion for new trial is not a timely place to complain that an opposing party’s argument in a summary judgment response was not supported by appropriate pleadings:


Summary Judgment: “Ultimately, we need not decide whether Rule 94 required Godoy to amend his answer to plead his public-policy argument based on [*11] Simpson. Even if it did, the dissenting justice in the court of appeals was correct that under our decision in Roark v. Stallworth Oil & Gas, Inc., Wells Fargo waived Godoy’s alleged pleading error by not raising it in the trial court prior to judgment. 813 S.W.2d 492, 495 (Tex. 1991). Wells Fargo did not alert the trial court to Godoy’s alleged pleading defect during summary judgment proceedings or at any other time prior to judgment. Instead, Wells Fargo waited until its response to Godoy’s motion for new trial to argue that Rule 94 required some of Godoy’s arguments to appear in his pleadings. Under Roark, this is too late.” Godoy v. Wells Fargo Bank, N.A., No. 18-0071, 2019 Tex. LEXIS 443, at *10-11 (May 10, 2019)

Though it does not deal with preservation of error at the trial court level, the Supreme Court also let us know, in the context of preserving an issue in briefing at the court of appeals, that a sufficiency challenge to the evidence supporting a breach of the implied warranty of suitability did not also suffice as a challenge to the evidence supporting a breach of contract claim:


Legal Sufficiency: “At no point in its briefing to the court of appeals did Rohrmoos challenge the sufficiency of the evidence with respect to the jury’s finding that Rohrmoos materially breached the lease. Nothing in Rohrmoos’s briefing put the court of appeals on notice of such a challenge, even when read liberally. Moreover, we are not prepared to do away with our preservation requirements altogether by holding that Rohrmoos’s challenge to the evidence supporting a breach of the implied warranty of suitability fairly subsumes a challenge to the evidence supporting a breach of contract. The two causes of action are different, each [*24] with entirely different elements that must be specifically pled, argued, and proved with supporting evidence. A challenge as to whether the plaintiff satisfied its burden of proof for one cause of action does not, by implication, challenge the evidence as to a separate cause of action. Had Rohrmoos not intended to base its challenge solely on Davidow, it should have argued alternative theories in the court of appeals to include a sufficiency challenge regarding material breach. Rohrmoos did not do so. This issue is not preserved for our review.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 Tex. LEXIS 389, at *23-24 (Apr. 26, 2019)

Very seldom do courts expressly analyze whether a complaint was sufficiently specific. One court of appeals held that an evidentiary objection was sufficiently specific:


Evidence: “To preserve error, a defendant must make a timely and specific objection to the trial court and the trial court must rule on the objection. Tex. R. App. P. 33.1(a). The objection must be specific enough so that the trial court can understand the precise grounds to make an informed ruling and afford the offering party an opportunity to remedy the defect if possible. See McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989).

At the start of DCP’s cross-examination of Stringer, Stringer’s counsel objected to the admissibility of the loss statement, asserting that it interjected insurance and violated the collateral source rule. Stringer’s counsel later conceded that DCP could question Stringer about his conversations with the third party and what the third party reported as the cause of the crop loss. However, he objected [*7] to DCP using the term “claim” during its questioning as it “strongly infers insurance.” The trial court ruled that the loss statement violated the collateral source rule but allowed DCP to use the term “claim” when questioning Stringer. The court stated that it would permit the inference of insurance and granted Stringer a running objection.

Accordingly, based on its context, we find that Stringer’s objection to the term “claim” was specific enough for the trial court to understand his position that the term violated the collateral source rule. See Tex. R. App. P. 33.1(a)(1)(A) (requiring the objection [*8] to be sufficiently specific to make the trial court aware of the complaint, unless the specific grounds were apparent from the context). Stringer’s objection was timely and overruled by the trial court. Thus, we conclude Stringer preserved the purported error.” In re DCP Operating Co., No. 07-18-00416-CV, 2019 Tex. App. LEXIS 3441, at *6-8 (Tex. App.—Amarillo Apr. 29, 2019)

Some issues that can be raised for the first time on appeal: lack of subject matter jurisdiction (standing and mootness), and the fact that a temporary injunction which does not comply with Rule 683 is void:


Mootness: “Gutierrez further contends that De La Paz “waived” his mootness challenge by: (1) failing to raise it in the 2018 appeal; (2) failing to raise it at the December 12, 2018 hearing; and (3) failing to file a petition for writ of mandamus prior to the February 12, 2019 re-run-off election. The trial court found that De La Paz waived his mootness challenge for these reasons and also by “invoking [the trial court’s] jurisdiction” in trial court cause number 19-128-D. But a trial court lacks subject matter jurisdiction over a moot claim, see City of Krum, 543 S.W.3d at 750, and it is well-settled that a challenge to a trial court’s subject matter jurisdiction can be raised at any time and cannot be [*13] waived by a party’s action or inaction. See In re Crawford & Co., 458 S.W.3d 920, 928, n.7 (Tex. 2015) (orig. proceeding); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (“[S]ubject-matter jurisdiction is a power that ‘exists by operation of law only, and cannot be conferred upon any court by consent or waiver’ . . . .”) (quoting Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (Tex. 1943)); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); King v. Deutsche Bank Nat’l Trust Co., 472 S.W.3d 848, 853 (Tex. App.-Houston [1st Dist.] 2015, no pet.); Glassman v. Goodfriend, 347 S.W.3d 772, 783 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); City of Weslaco v. Borne, 210 S.W.3d 782, 793 (Tex. App.—Corpus Christi 2006, pet. denied). Gutierrez has not provided us with any reason to deviate from this long-standing precedent.” de La Paz v. Gutierrez, No. 13-19-00133-CV, 2019 Tex. App. LEXIS 3426, at *12-13 (Tex. App.—Corpus Christi Apr. 29, 2019)

Standing: “As a preliminary matter, we address Paternal Grandmother’s argument that we should not address Maternal Grandmother’s challenge to her standing on mandamus because Maternal Grandmother did not object to her standing in the trial court. However, subject matter jurisdiction cannot be waived or conferred by agreement and can be raised at any time. See In re D.S., 555 S.W.3d 301, 314 (Tex. App.—Dallas 2018, pet. filed). Accordingly, we will address whether the trial court erred in concluding at the temporary orders hearing that Paternal Grandmother had standing.” In re Nelke, No. 05-19-00050-CV, 2019 Tex. App. LEXIS 2754, at *4-5 (Tex. App.—Dallas Apr. 5, 2019)

Temporary Injunction: “Further, in concluding the agreed temporary injunction is void and must be dissolved, we necessarily reject Hanson’s contentions that because appellants agreed to the temporary injunction and failed to raise these technical defects in their motion to dissolve, they should be precluded from complaining about the order’s deficiencies [*7] under rule 683. We can declare a temporary judgment void even if the parties have not raised the issue. … Moreover, because a temporary injunction order that fails to comply with rule 683 is void, a party cannot waive the error by agreeing to the form or substance of the order. ” Reiss v. Hanson, No. 05-18-00923-CV, 2019 Tex. App. LEXIS 3202, at *6-7 (Tex. App.—Dallas Apr. 22, 2019)

You have to get a ruling on your complaint–which can be implied:


Continuance: “In their last issue, Munz and UV contend the trial court erred by denying their request for a continuance to allow them the opportunity to cross-examine Schreiber. In their response to the special appearance, Munz and Schreiber stated that if the court was inclined to grant the special appearance, the [*31] trial court should grant a continuance under Texas Rule of Civil Procedure 120a(3) to allow them to take Schreiber’s deposition. We conclude the trial court did not err in denying the request for a continuance. . . .As an initial matter, we note that our record does not contain an order or express ruling on Munz and UV’s request for a continuance.  Texas Rule of Appellate Procedure 33.1, requires a party to preserve a complaint for appeal by presenting the complaint to the trial court and obtaining a ruling, either expressly or implicitly. Tex. R. App. P. 33.1(a)(2). Although the record does not contain an express ruling on the request for a continuance, we conclude that the trial court impliedly overruled the request for a continuance by considering and ruling on the special appearance, thereby preserving the issue for our review.” Munz v. Schreiber, No. 14-17-00687-CV, 2019 Tex. App. LEXIS 3225, at *30-31 (Tex. App.—Houston [14th Dist.] Apr. 23, 2019)

Evidence: “During the hearing J.D.F. requested the court to admit into evidence an affidavit he filed. The court stated it had not yet received the affidavit and would decide its admissibility after the State reviewed it and responded with its position as to the item’s admissibility. The record reflects no further discussion of the affidavit and no ruling by the court on its admission. We interpret J.D.F.’s brief on appeal to complain that the affidavit was wrongfully excluded from evidence. As noted, no evidence was admitted at the hearing. . . .We have no express ruling on J.D.F.’s offer of his affidavit. Because the record does not include the State’s response to J.D.F.’s offer of his affidavit or further comment from the trial court, we cannot reasonably imply an adverse ruling by the trial court. Accordingly, we must view J.D.F.’s complaint as waived, and nothing is preserved for our review.” Ex parte J.D.F., No. 07-17-00202-CV, 2019 Tex. App. LEXIS 3536, at *9 (Tex. App.—Amarillo May 1, 2019)

Leave to Amend: “The record does not contain an order from the trial court denying appellants’ motion to amend their petition. The summary judgment order states that having considered “the argument of counsel, the pleadings on file, and the applicable law,” the motion is granted. The order then dismisses appellants’ claims against Marcus & Millichap with prejudice. It does not address appellants’ request to amend their pleadings. The parties assert, however, that the trial court impliedly denied the motion. A trial court’s ruling can be either express or implied to preserver error. Tex. R. App. P. 33.1(a)(2)(A). An express ruling on one motion may imply a contrary ruling on an opposing motion. See Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997). In this case, appellants requested leave to amend their pleadings in response to the summary judgment motion, but did not file a proposed amended petition. Marcus & Millichap opposed the motion to amend in its summary-judgment reply brief. The motion was argued by both parties at the summary judgment hearing. And, the trial court concluded the hearing by informing the parties that all matters related to the motion for summary judgment would be resolved. Accordingly, we conclude [*5] that the motion for leave to amend was presented and considered by the trial court. The court impliedly denied the motion by granting summary judgment and dismissing appellants’ claims against Marcus & Millichap. n. 1 n. 1 We do not presume that the trial court considered the discovery rule when it granted summary judgment or find that the discovery rule was tried by consent.  A trial court is presumed to have granted leave to file and to have considered a late-filed pleading where (1) the pleading is part of the record before the court, (2) the trial court’s judgment states that all pleadings on file were considered by the court, and (3) the opposing party has not shown surprise or prejudice. Goswami v. Metropolitan Sav. & Loan Asso., 751 S.W.2d 487, 490 (Tex. 1988). Because appellants never filed an amended petition asserting the discovery rule, a pleading was not part of the record before the court. Thus, there can be no presumption that it was considered by the trial court. Further, we find that the discovery rule was not tried by consent because Marcus & Millichap objected to the unpled issue throughout the summary judgment proceedings. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991) (holding that unpled issues may be tried by consent in summary judgment proceedings if there is no objection to the lack of pleading).” Triex Tex. Holdings, LLC v. Marcus & Millichap Real Estate Inv. Servs. of Nev., No. 07-18-00077-CV, 2019 Tex. App. LEXIS 3365, at *5 n.1 (Tex. App.—Amarillo Apr. 25, 2019)

A governmental entity can first raise sovereign immunity in a Rule 91a motion–it does not need to plead the same:


Sovereign Immunity: “Sovereign immunity from suit, however, is not an affirmative defense that the State must plead or raise in special exceptions or a plea to the jurisdiction in order to raise it in a Rule 91a motion. … Thus, the State properly raised sovereign immunity as a basis for dismissing appellants’ claims pursuant to Rule 91a.” Spence v. State, No. 03-17-00685-CV, 2019 Tex. App. LEXIS 3359, at *17-18 (Tex. App.—Austin Apr. 26, 2019)

There were then a whole host of cases in which parties failed to raise their complaints in the trial court.

I hope this helps.

Yours, Steve Hayes


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
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Meetings with Mr. Hayes will be by appointment only.

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