Error Preservation in Texas Civil Cases, May 18, 2019

Dear All:

Well, the courts have been busy the last couple of weeks.

Table of Contents

The Blurbs

Some issues you can raise for the first time on appeal.

 

Authenticity of a Document: “In In re Estate of Guerrero, this court, sitting en banc, determined that under precedent from the Supreme Court of Texas and from this court, a document submitted as evidence in a summary-judgment or a motion-to-compel-arbitration context has a substantive defect and is incompetent if there was a complete failure to authenticate the document. See 465 S.W.3d 693, 705, 706-08 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc).” Maree v. Zuniga, No. 14-17-00210-CV, 2019 WL 2000464, 2019 Tex. App. LEXIS 3651, at *15-16 (Tex. App.—Houston [14th Dist.] May 7, 2019, no pet. hist.).

Indian Child Welfare Act: “In her second issue, Mother contends “[t]he case is marred by an abject, persistent, prejudicial, and reversible failure to comply with” the Indian Child Welfare Act (ICWA). See 25 U.S.C. §§ 1901-63. Mother did not raise her ICWA objection in the trial court. Under Texas law, her failure to object precludes her complaint on appeal. See Tex. R. App. P. 33.1(a). However, this court has held the ICWA preempts state law to the extent there is a conflict. . . .A complaint alleging a failure to follow the ICWA may be raised for the first time on appeal. J.J.C., 302 S.W.3d at 899.” In the Interest of M.T.R., No. 14-18-01058-CV, 2109 Tex. App. Lexis 3993 (Tex App.–Houston [14th Dist.] May 16, 2019)

Failure of Traditional MSJ to prove entitlement to judgment as a matter of law: “In its second declaration, the trial court ruled that under Paragraph 43 of the Note and Paragraph 13 of the First Modification, “arbitration cannot be commenced unless a court determines that the jury trial waiver is not enforceable.” On appeal, Carter asserts that under the plain text of the Note and First Modification, there is no such requirement. Amegy Bank asserts that Carter waived this [*14] argument by not presenting it in his summary-judgment response in the trial court. Even if Carter did not raise this argument in his summary-judgment response, the law does not require that he have done so because his challenge constitutes a complaint that Amegy Bank’s summary-judgment evidence does not prove as a matter of law Amegy Bank’s entitlement to summary judgment on a traditional ground. See M.D. Anderson Hosp. & Tumor Institute v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Thus, Carter still can raise this complaint. See id.” Carter v. ZB, Nat’l Ass’n, No. 14-17-00900-CV, 2019 Tex. App. LEXIS 3645, at *13-14 (Tex. App.—Houston [14th Dist.] May 7, 2019)

Lack of Statutorily Required Notice: “Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c)(1)-(2) (West 2018). The procedures set out in Article 55.02 are mandatory and must be complied with during an expunction hearing. Tex. Dep’t of Pub. Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.—San Antonio 1989, no writ). When the record fails to demonstrate that the agency was notified pursuant to the statute, the record reveals a violation of the statute, and the expunction order must be set aside. SeeRodriguez v. T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.—San Antonio 1991, no writ) (reversing trial court and setting aside expunction order after finding that hearing took place without notice to respondent); Riley, 773 S.W.2d at 758 (setting aside expunction order because record did not reflect agencies had been notified of expunction [*5] hearing and because court violated thirty-day waiting period). Here, the record shows that DPS never received notice of the expunction hearing by any of the avenues set forth in the statute. Moreover, there is nothing in the record to reflect that DPS waived the notice requirement. It was therefore error for the trial court to grant Butler’s petition for expunction without providing notice to DPS of the hearing. Thus, error is apparent on the face of the record because the record does not reflect that any agency, including DPS, received notice of the expunction hearing. The violation of this mandatory statutory requirement requires us to set aside the trial court’s nunc pro tunc order of expunction.” Ex parte Butler, No. 06-18-00110-CV, 2019 Tex. App. LEXIS 3618, at *4-5 (Tex. App.—Texarkana May 7, 2019)

Several cases held that parties preserved a complaint about the charge:

 

Jury Charge: “Goldberg argues that Sloane did not preserve his jury charge issue [regarding an affirmative defense] for review because he did not tender the requested question and instruction to the trial court at the charge conference and obtain a ruling. We disagree. As we explained in Hiles, “[w]hen determining whether a complaint of charge error is preserved, we ask whether the complaining party ‘made the trial court aware of the complaint, timely and plainly, and obtained a ruling.’” 402 S.W.3d at 831 (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)). Here, the trial court discussed the requested question and instruction on the record at the charge conference and explained at some length why the court was refusing to submit the question and instruction. Sloane made the trial court aware of his complaint and obtained a ruling on the record at the charge conference. This was sufficient to preserve the jury charge issue for our review. See Rosell, 89 S.W.3d at 657 (holding party preserved error when party offered instruction and objected when not submitted; trial court’s ruling on objection was sufficient despite lack of endorsement of “refused” on proposed instruction).” Sloane v. Goldberg B’Nai B’Rith Towers, No. 14-17-00557-CV, 2019 Tex. App. LEXIS 3644, at *14 n.7 (Tex. App.—Houston [14th Dist.] May 7, 2019)

Jury Charge: “Neal timely preserved error at the charge conference by tendering the fraud-in-the inducement question and by obtaining a ruling. The court was reasonably aware of Neal’s complaint as evidenced by the court’s on-the-record comments and the extended on-the-record colloquy between the court and Neal’s counsel. This Court, following the reasoning of Payne, concludes that Neal did not waive his complaint to the court’s charge.

There is an alternate reason that Neal preserved error. This is not a [*10] case where the parties agreed to submit objections after the charge was read and the court consented to the parties’ agreement. See Missouri Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 873 (Tex. 1973). Rather, the court here directed the parties to state their objections after the charge was read and the jury had begun its deliberation, and the court even pronounced that neither party had waived objections to the court’s charge by complying with its directive. Common sense mandates that HN4 a party, compelled by the court’s ruling to state its objections to the charge after the jury has begun its deliberations, does not waive its complaint.” Neal v. Guidry, No. 03-17-00525-CV, 2019 Tex. App. LEXIS 3884, at *9 (Tex. App.—Austin May 15, 2019)

Jury Charge: “In its third issue, TxDOT argues that the trial court reversibly erred by issuing two erroneous jury instructions. [*21] In particular, TxDOT contends that the first instruction was a “permissive pretext” instruction which confused the jury about the ultimate issue Flores had the burden of proving, and further constituted an impermissible comment on the weight of the evidence. TxDOT likewise argues that a second jury instruction constituted an impermissible comment on the weight of the evidence.

Preservation: As a preliminary matter, we address Flores’s contention that TxDOT has not preserved this issue for our review.  During a charge conference prior to submitting the case to the jury, the trial court afforded the parties an opportunity to discuss Flores’s proposed jury charge. The proposed jury charge contained the following instruction:

You are instructed that GENARO FLORES is not required to produce direct evidence of an unlawful motive. Discrimination, if it exists, is a fact which is seldom admitted, but is a fact which you may infer from the existence of other facts.

TxDOT objected that this instruction was “an improper comment on the weight of the evidence,” which the trial court overruled. Because TxDOT objected to the proposed instruction at trial for the same reason it does on appeal, we hold that TxDOT properly preserved this issue for our review as the objection at trial comports with its argument on appeal. SeeTex. R. App. P.33.1; Tex. R. Civ. P. 274; Baker, 355 S.W.3d at 383.

Flores also submitted the following proposed instruction:

Proof by a preponderance of the evidence that an [*23] employer’s stated reason for an employment action is false is ordinarily sufficient to permit you to find that the employer was actually motivated by discrimination.

TxDOT also objected to this instruction, arguing that the instruction was “a comment on the weight of the evidence.” Citing Kanida v. Gulf Coast Med. Pers., L.P., 363 F.3d 568, 575-76 (5th Cir. 2004), TxDOT also disagreed with Flores’s argument that under Ratliff v. City of Gainesville, Tex., 256 F.3d 355, 359-60 (5th Cir. 2001), a trial court reversibly errs to fail to advise the jury that inferred discrimination may be established from evidence of pretext. The trial court overruled this objection as well. Again, given that (1) TxDOT objected to the instruction on the basis of it constituting a “permissive pretext” which could potentially confuse the jury, (2) the trial court overruled the objection, and (3) TxDOT’s trial objection comports with its appellate argument, we hold that it has preserved this instruction for our review as well. SeeTex. R. App. P.33.1; Tex. R. Civ. P. 274; Baker, 355 S.W.3d at 383.” Tex DOT v. Flores, No. 08-17-00047-CV, 2019 Tex. App. Lexis 3918 (Tex. App.–El Paso May 15, 2019)

You have to comply with the pertinent rules:

 

Capacity: “Gloria next argues that appellees failed to prove standing or capacity. A plaintiff must have both standing and capacity to bring suit. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome, whereas capacity is a procedural issue addressing the personal qualifications of a party to litigate. Id. With regard to standing, Gloria argues that only Z Ready Mix had legal standing to bring a breach-of-fiduciary-duty claim against her. Appellees agree, stating that only Z Ready Mix asserted the claim against Gloria and the jury was only asked whether Gloria failed to comply with her fiduciary duty to Z Ready Mix. Gloria further argues that neither Noelia nor Mario had standing or capacity to sue on behalf of Z Ready Mix. This argument concerning the qualification of Noelia and Mario to litigate on behalf of Z Ready Mix is a challenge to capacity. Unlike a challenge to standing, a challenge to capacity must be raised in a verified answer before the trial court. See Tex. R. Civ. P. 93. Because Gloria did not file a verified answer challenging capacity, this argument has not been preserved for our review. See Tex. R. App. P. 33.1.” Zermeño v. Garcia, No. 14-17-00843-CV, 2019 Tex. App. LEXIS 3766, at *9 (Tex. App.—Houston [14th Dist.] May 9, 2019)

Offer of Proof (Expert): “ Singh v. Payan, No. 04-17-00111-CV, 2018 WL 4096402, at *3 (Tex. App.—San Antonio Aug. 29, 2018, no pet.) (mem. op.) (“To be sufficient to preserve error, an offer of proof must describe or show the nature of the evidence specifically enough that the reviewing court can determine its admissibility.” (citing TEX. R. EVID. 103(a)(2))).

As an initial matter, we agree with appellees that Ghidoni’s offer of proof lacked specificity regarding the content of Anderson’s opinion that would permit this Court to effectively determine whether Anderson possessed the requisite “special knowledge” to offer an expert opinion regarding such content. Broders, 924 S.W.2d at 152-53. After the court sustained appellees’ objection to Anderson’s testimony, Ghidoni’s counsel stated as follows in her offer of proof:

My expert witness would have testified to their having committed legal malpractice in this case. He would have testified that they were negligent in their representation of my client, that their conduct fell below the standard of care used by attorneys in the same or similar circumstances, that that constituted [*11] a breach of their duty owed, and that it was a — foreseeable, and that their conduct was the proximate cause of my client’s damages, and that his damages would have been the attorney’s fees that he had to pay in the other underlying litigation.

In sum, this offer recited the elements of a legal malpractice claim without specifying how or why Anderson believed that those elements were satisfied. The conclusory nature of the offer hinders our review of Ghidon’s complaint regarding the exclusion of Anderson’s testimony. Cf. Chapman v. Olbrich, 217 S.W.3d 482, 494-95 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (concluding that offer of proof did not describe responses to requests for disclosure specifically enough to allow appellate court to determine whether trial court erred in refusing to admit such responses into evidence).” Ghidoni v. Skeins, No. 05-18-00355-CV, 2019 Tex. App. LEXIS 3818, at *10-11 (Tex. App.—Dallas May 10, 2019)

The complaint you raise on appeal must comport with the complaint you made in the trial court.

 

Attorney’s Fees: “Father first complains that Mother’s counterpetition only included a general request for attorney’s fees to be paid to her attorney; “there were no pleadings referencing [Family Code section 106.002] for the recovery of attorney’s fees.” See Tex. Fam. Code Ann. § 106.002 (court may render judgment for reasonable attorney’s fees and expenses in suit affecting parent-child relationship). Although Father contends that his “counsel raised several objections to [Mother]’s request for attorney’s fees,” the record does not reflect that Father objected to the award of attorney’s fees in the trial court based on Mother’s failure to plead any specific statutory basis for the award. Therefore, Father has not preserved this complaint. See Tex. R. App. P. 33.1(a)….In his reply brief, Father argues that whether he “raised objections to the deficiencies of [Mother]’s pleadings is immaterial because the trial court did not have a statutory basis to award attorney’s fees.” However, because Father did not raise the argument that the trial court lacked a statutory basis for its attorney’s-fee award in the trial court, he also has waived this argument. See Tex. R. App. P. 33.1(a); ” In the Interest of D.Z., No. 14-17-00938-CV, 2019 Tex. App. LEXIS 3991 (Tex App.–Houston [14th Dist.] May 16, 2019)

Attorney’s Fees: “Father also asserts (without explanation) that Mother “failed to segregate attorney’s fees between claims for which attorney[‘s] fees are recoverable and claims for which they are not.” However, the record does not reflect that Father ever raised any objection in the trial court based on lack of segregation of Mother’s attorney’s fees. Father likewise did not preserve this complaint. See Tex. R. App. P. 33.1(a);” In the Interest of D.Z., No. 14-17-00938-CV, 2019 Tex. App. LEXIS 3991 (Tex App.–Houston [14th Dist.] May 16, 2019)

Evidence: “On appeal, TxDOT argues that the trial court erred by excluding the disciplinary records on the basis that they contained hearsay because they were not offered for the truth of the matter asserted, but rather “to show the formal disciplinary actions [*32] that had been taken leading up to and culminating in Flores’s termination.” See Tex. R. Evid. 801(d). Yet, as Flores points out, TxDOT did not provide a basis at trial for overcoming Flores’s hearsay-within-hearsay trial objections, and does not do so on appeal; as such, we hold that the trial court did not abuse its discretion in excluding the documents on this basis. SeeTex. R. Evid. 801(d), 805. TxDOT further argues on appeal that the disciplinary records were admissible under the hearsay exception for public records pursuant to Tex. R. Evid. 803(8); however, this argument was never made at trial and does not comport with TxDOT’s complaint on appeal, and it is therefore waived. See Tex. R. App. P.33.1.” Tex DOT v. Flores, No. 08-17-00047-CV, 2019 Tex. App. Lexis 3918 (Tex. App.–El Paso May 15, 2019)

Jury Charge: “Gloria’s fifth issue is likewise waived. In this issue, Gloria [*7] asserts that the Question No. 6 of the jury charge included harmful error because it asked the jury to award damages to all three appellees. Gloria explains that it was improper to include Noelia and Mario in Question No. 6 because neither was alleged to be owed a fiduciary duty by Gloria. Gloria points out that the predicate question asked only if she breached a fiduciary duty to Z Ready Mix. To preserve an alleged jury-charge error, a party must take some action to apprise the trial court of the alleged error in a way that provides the trial court with the opportunity to correct it. Burbage v. Burbage, 447 S.W.3d 249, 257 (Tex. 2014) (“[T]he objection must apprise the trial court of the error alleged such that the court has the opportunity to correct the problem.”). “There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 226-27 (Tex. 2010) (quoting Payne, 838 S.W.2d at 241). At trial, Gloria objected that no evidence existed to support the submission of Question No. 6, but did not object that it was improper to include Noelia and Mario. Gloria objected only that “there is insufficient evidence . . . to prove . . . that [*8] Gloria Zermeño . . . actually caused any damages from a breach of fiduciary duty.” Gloria gave the trial court no plain indication that she objected to the inclusion of Noelia and Mario in the question. As such, Gloria waived this issue.” Zermeño v. Garcia, No. 14-17-00843-CV, 2019 Tex. App. LEXIS 3766, at *6-8 (Tex. App.—Houston [14th Dist.] May 9, 2019)

You have to get a ruling:

 

Discovery: “By her third issue, Nickerson argues that the trial court abused [*13] its discretion by denying her motions to compel discovery. However, there is no indication in the record that the trial court ruled on Nickerson’s motions or that Nickerson objected to the trial court’s refusal to rule on her motions. If a party is not satisfied with an opposing party’s discovery objections or responses to discovery inquiries, that party may move the trial court to compel discovery. See Tex. R. Civ. P. 215.1; see also Tex. R. Civ. P. 193.4 (providing that any party may request a hearing on an objection or claim of privilege to a discovery request). To preserve error on a discovery dispute, the appealing party must obtain a ruling by the trial court on the discovery issue. See Tex. R. App. P. 33.1(a)(2).” Nickerson v. Pineda, No. 13-17-00346-CV, 2019 Tex. App. LEXIS 3728, at *12-13 (Tex. App.—Corpus Christi May 9, 2019)

Summary Judgment: “Although Appellees objected to the plat as summary judgment evidence, the objection was not preserved because they did not obtain a ruling on it. See Capitol Wireless, LP v. XTO Energy, Inc., No. 02-12-00351-CV, 2014 Tex. App. LEXIS 8028, 2014 WL 3696084, at *5 (Tex. App.—Fort Worth July 24, 2014, no pet.) (mem. op.). Thus, we consider the unrecorded plat in our analysis.” Strait v. Savannah Court P’ship, No. 02-18-00036-CV, 2019 Tex. App. LEXIS 4022, at *21 n.9 (Tex. App.—Fort Worth May 16, 2019)

Summary Judgment: “Generally, if a trial court’s ruling granting one summary judgment motion necessarily denies another pending motion for summary judgment on the same issue, we will imply the ruling of denial, even if the trial court does not expressly rule on the latter motion. ….With respect to Star’s fraudulent transfer claim against NLW, appellees moved for summary judgment on their affirmative defense. The issue appellees presented, and upon which the trial court ruled, was whether Star’s claim was extinguished by the statute of repose. Star seeks summary judgment on the merits of its fraudulent transfer claims. The trial court did not reach the merits of this issue. Further, the trial court, at the summary-judgment hearing, expressly did not reach Star’s claim regarding the Fuqua Tract. To preserve error for appeal, a party must obtain a ruling from the trial court. SeeTex. R. App. P.33.1(a); Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (“Preservation of error generally depends on whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.”) (internal quotations omitted). Because Star did not obtain a ruling from the trial court on its motion for summary judgment, this issue is waived.” Star Electric, Inc. v. Northpark Office Tower, LP, No. 01-17-00364-CV, 2019 Tex. App. Lexis 3857, 2019 WL 2094328 (Tex. App.–Houston [1st Dist.] May 14, 2019)

Your complaint must be timely:

 

Dismissal: “On July 27, 2016, Mother filed her motion to dismiss pursuant to § 263.402 of the family code. See id. § 263.402. But the final order naming the Department as permanent managing conservator of P.M. was entered over eight months prior to the filing of Mother’s motion to dismiss. Therefore, Mother waived her right to object to the trial court’s failure to dismiss the suit. See id. (“A party to a suit under this chapter who fails to make a timely motion to dismiss the suit under this subchapter waives the right to object to the court’s failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is made before the trial on the merits commences.”); see also In Interest of S.L.W., 529 S.W.3d 601, 607 (Tex. App.—Texarkana 2017, pet. denied) (holding Father waived his right to object to the court’s failure to dismiss where no motion [*8] to dismiss was filed prior to the entry of the final order on the merits).” In the Interest of P.M., No. 13-19-00058-CV, 2019 Tex. App. LEXIS 3729, at *7-8 (Tex. App.—Corpus Christi May 9, 2019)

One case held that a party did not waive its complaint about the lack of impartiality of an arbitrator by proceeding to arbitration even though knowing the arbitrator was a “friend” to the opposing party–but not knowing the extent of their interrelationship:

 

Arbitration: “Lange filed her motion to vacate in September 2017, arguing that Cole’s undisclosed friendship with Jenkins [who had entered an appearance as counsel for Cole after the arbitrator’s initial disclosures] exhibited evident partiality. Lange’s motion states that Jenkins’ July 12, 2017 email — in which she referred to Cole as a “friend” (about whom she thought a great deal) — was “the first disclosure that Lange or her counsel ever received of any friendship or other social relationship between Cole and Jenkins.” Piske asserts Lange waived her complaint as to Cole’s partiality by failing to raise the objection until approximately two months after Jenkins’ email. Guided by the Texas Supreme Court’s reasoning in Tenaska Energy, Inc., 437 S.W.3d at 528-29, and TUCO Inc., 960 S.W.2d at 637-38, we reject [*13] Piske’s argument….Like the appellants in Tenaska and TUCO Inc., Lange did not waive her evident-partiality claim by proceeding with the arbitration after Jenkins’ July 12, 2017 email. Jenkins’ email referred to Cole as a “friend” but did not disclose the later-discovered extent of their personal and business connections. Moreover, the email’s overall tone indicated Jenkins’ frustration with the delay in Cole’s issuance of his ruling. The email encouraged Cole to rule on the arbitration “as quickly as possible,” informing him that his delay in issuing the award “was beyond anything the parties should have to endure.” This email and Jenkins’ reference to Cole as a “friend” [*15] did not constitute a full disclosure of Cole’s and Jenkins’ relationship. We sustain Lange’s first issue and conclude Cole exhibited evident partiality by failing to disclose the extent of his personal and professional connections with Jenkins. Because we sustain Lange’s first issue, we do not reach her challenges addressing the trial court’s denial of her motion for new trial and motion for continuance.” In re Marriage of Piske, No. 14-17-00869-CV, 2019 Tex. App. LEXIS 3646, at *12-15 (Tex. App.—Houston [14th Dist.] May 7, 2019)

As usual, there were lots of cases holding that parties did not raised their complaints at all in the trial court.

All for now.  I hope this helps.

Yours, Steve Hayes

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