Error Preservation in Texas Civil Cases, May 15, 2021

May 15, 2021

Dear Friends:

This was sort of an average to light week on the error preservation front, but there were a few cases worth noting.

If you raise your complaint in the trial court in a timely, specific fashion, you will have preserved it


You have to get a ruling on your complaint

Texas Citizen’s Participation Act

Your complaint must comply with other pertinent rules


While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court

Security (Vexatious Litigant)
Supervision Order
Summary Judgment
Jury Charge


If you raise your complaint in the trial court in a timely, specific fashion, you will have preserved it:

Arbitrability: “Spruce contends that Sunnova did not preserve for review its argument that the JAMS rules delegate to the arbitrator the issue of whether a nonsignatory can compel arbitration. See Tex. R. App. 33.1(a) (requiring complaint to be presented to trial court “by a timely request, objection, or motion” as a prerequisite to presenting complaint on appeal). But Spruce concedes, “Sunnova did argue that the parties had agreed that the arbitrator would decide arbitrability because they incorporated the JAMS rules.” That argument, presented in Sunnova’s motion to compel arbitration, is the same argument Sunnova makes on appeal. HN2 Whether a nonsignatory can compel arbitration is a question of arbitrability. The fact that Sunnova is a nonsignatory is obvious, and that fact was discussed in the trial court. Spruce’s waiver argument is therefore without merit. We turn to Sunnova’s appellate issue.” Sunnova Energy Corp. v. Spruce Lending, Inc., No. 14-19-00438-CV, 2021 Tex. App. LEXIS 3606, at *4 (Tex. App.—Houston [14th Dist.] May 11, 2021)

You have to get a ruling on your complaint:

Texas Citizen’s Participation Act: “Appellants ask us to address Walker’s tortious interference with contract and conspiracy claims as a part of this pertinent TCPA motion—which was filed November 14, 2019, and heard February 17, 2020. Walker amended his petition to include the two additional claims on February 10, 2020—months after appellants filed their first TCPA motion. Nevertheless, appellants argue “Walker’s conspiracy and tortious interference with contract claims are based on or relate to the same essential factual allegations as the original defamation claims.”

Before perfecting this appeal, appellants filed a second TCPA motion to dismiss on March 30, 2020, which included requests for dismissal of Walker’s tortious interference with contract and conspiracy claims. The record shows appellants’ second TCPA motion to dismiss has not been heard or otherwise adjudicated by the trial [*26] court. In Walker v. Pegasus Eventing, LLC we held:

The TCPA requires a defendant seeking the statute’s protections to move for dismissal and to obtain a hearing on the motion within certain clearly defined periods. Braun v. Gordon, No. 05-17-00176-CV, 2017 Tex. App. LEXIS 9053, 2017 WL 4250235, at *3 (Tex. App.—Dallas Sept. 26, 2017, no pet.) (mem. op.). The failure to meet these requirements results in the defendant’s forfeiting the statute’s protections, and the case should continue as if the motion to dismiss were never filed. Id. Specifically, if the trial court does not hold a hearing at all, then we lack jurisdiction over an appeal related to the motion. See In re Herbert, No. 05-19-01126-CV, 2019 Tex. App. LEXIS 8493, 2019 WL 4509222, at *1 (Tex. App.—Dallas Sept. 19, 2019, orig. proceeding) (mem. op.) (“[C]ourts of appeals lack jurisdiction over an appeal involving [a TCPA] motion if the trial court refuses to hold a timely hearing despite the movant’s reasonable requests to the trial court for that hearing.”).

No. 05-19-00252-CV, 2020 Tex. App. LEXIS 4492, 2020 WL 3248476, at *5 (Tex. App.—Dallas June 16, 2020, pet. denied) (footnote omitted, emphasis added). Here, since the trial court has not heard appellants’ second TCPA motion, we (i) decline to address and (ii) offer no opinion on Walker’s claims of tortious interference with contract and conspiracy. ” QBE Ams., Inc. v. Walker, No. 05-20-00439-CV, 2021 Tex. App. LEXIS 3711, at *25-27 (Tex. App.—Dallas May 12, 2021)

Your complaint must comply with other pertinent rules.

Continuance: “Further, appellant did not file a written motion for continuance of the May 14, 2019, hearing under section 84.004 of the Family Code. See Tex. Fam. Code § 84.004(a); see also Dempsey v. Dempsey, 227 S.W.3d 771, 776 (Tex. App.—El Paso 2006, no pet.).  Absent a written motion for continuance of the hearing, there is no preservation of error. See Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas 2003, pet. denied) (determining oral request for continuance fails to comply with Rule 251 of the Texas Rules of Civil Procedure and does not preserve error); see also Tex. R. App. P. 33.1(a)(1)(B).” Adimora-Nweke v. Yarbrough, No. 14-19-00426-CV, 2021 Tex. App. LEXIS 3729, at *4 (Tex. App.—Houston [14th Dist.] May 13, 2021)

All for now folks.  Y’all have a great weekend, and a great upcoming week.

Yours, Steve Hayes; 817/371-8759;


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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