Error Preservation in Texas Civil Cases, May 19, 2018

Table of Contents

Here is another court which struggles when trying to determine whether something is an issue–which must be raised in the trial court–as opposed to an additional argument which supports an issue.  The Court concluded that it was dealing with an additional argument, as opposed to a newly raised issue:


Limitations: “In oral argument and a post-submission letter brief, AK responds that ART’s issue in the trial court and in its original appellate brief was limited to ART’s second argument whether Hughes should be extended or expanded to include transactional malpractice. Accordingly, AK argues ART’s first argument has been waived. The issue of the applicability of the Hughes tolling doctrine was presented to the trial court in ART’s response to AK’s summary judgment in general statements that encompass both its arguments as well as in specific statements articulating ART’s second argument. See Adams v. Starside Custom Builders, LLC, No. 16-0786, 2018 Tex. LEXIS 327, 2018 WL 1883075, at *5 n.2 (Tex. Apr. 20, 2018) (general argument that mentioned other terms in a statute not specifically argued to trial court preserved issue for appeal). On appeal, ART’s original brief primarily urged its second argument to extend the Hughes rule to include their claims. But ART made broad statements such as this summary of its appellate position regarding Hughes:

[ART] asserted below and assert here that the equitable tolling doctrine set forth in Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156-57 (Tex. 1991), applies to their claims in this case. If it does, then even the later-filed but more specific Second Amended Original Petition is timely to assert [ART’s] claims against AK relating to its advice in terminating the Clapper Transaction.

The Texas Supreme Court has held some claims such as Plaintiffs are covered by Hughes. Indeed, Hughes itself involved legal malpractice unrelated to a pending lawsuit. Some federal district courts have also applied Hughes to claims like those alleged here.

(Appellants’ Brief at 19). In its formal argument, ART contended,

Plaintiffs asserted, both in their Second Amended Petition . . . and in their response to AK’s Second Motion for Summary Judgment on Limitations . . . , that Hughes applied to toll limitations as to its claims arising from AK’s March 1999 advice and work concerning the termination of the Clapper Transaction. As a result, Plaintiffs [sic] Second Amended Petition, which alleged [*12] those claims with more specificity, was not barred by limitations.

(Id. at 32-33) (citations to record and appendix omitted). AK does not dispute that ART clearly asserted its first argument in its reply brief that the Hughes rule applies as it currently exists, without the need for extension. We cannot consider issues raised for the first time in a reply brief. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per curiam). But the distinction between issues and arguments is not always clearSee Adams, 2018 Tex. LEXIS 327, 2018 WL 1883075, at *5 (“[Appellant] was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive.”) (citing Greene v. Farmers Ins. Exchange, 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”)). Because both of ART’s arguments contend Hughes applies or should apply to ART’s claims, we address them both.” Am. Realty Tr., Inc. v. Kurth, No. 05-16-01433-CV, 2018 Tex. App. LEXIS 3226, at *11-12 n.6 (App.—Dallas May 8, 2018)

Concerning a fact issued tried to the bench, one may raise a legal sufficiency challenge for the first time on appeal.


Attorney’s Fees/Legal Sufficiency: “The Dinkinses did not object to the attorney’s-fees award in the trial court.  Generally, to preserve a complaint for appellate review, a party must have presented its complaint to the trial court by timely request, objection, or motion with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). “Complaints regarding alleged error in awarding attorney’s fees are subject to this rule.” Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.-Houston [14th Dist.] 2015, no pet.). We interpret the Dinkinses’ contention that there was no legal basis for the attorney’s-fees award to mean that it lacked any statutory or contractual basis. Because the Dinkinses never objected to the attorney’s-fees award in the trial court, they did not preserve error as to this [*21] complaint. See id. But because the trial court determined the amount of attorney’s fees, the Dinkinses may still challenge the sufficiency of the evidence supporting the attorney’s-fees award because such a challenge may be raised for the first time on appeal. See Tex. R. App. P. 33.1(d); Gipson-Jelks, 468 S.W.3d at 604-05; see also Huey-You v. Huey-You, No. 02-16-00332-CV, 2017 Tex. App. LEXIS 8750, 2017 WL 4053943, at *3 (Tex. App.-Fort Worth Sept. 14, 2017, no pet.) (mem. op.).” Dinkins v. Calhoun, No. 02-17-00081-CV, 2018 Tex. App. LEXIS 3519, at *20-21 (App.-Fort Worth May 17, 2018)

When you timely raise your complaints on multiple occasions in the trial court, you will have preserved it:


Experts: “Hood argues DuPont failed to preserve some of its challenges to the input data by not objecting to the trial court. DuPont responds an objection was not required to preserve these issues. A review of the record, including DuPont’s pretrial motions to strike Stewart’s expert testimony, a hearing on the motion to strike, and its post-judgment motions challenging the sufficiency of the evidence on causation, reveals that DuPont challenged the reliability of the inputted data for (1) respirator use; (2) the amount of benzene in DuPont’s products; (3) benzene exposure when Hood was not painting; and (4) size of the vehicles being painted. Thus, we consider whether Stewart’s lifetime benzene exposure dose was unreliable based on the specific [*16] data inputted in ART for these categories.” E.I. du Pont de Nemours & Co. v. Hood, No. 05-16-00609-CV, 2018 Tex. App. LEXIS 3228, at *15-16 (App.—Dallas May 8, 2018)

Your complaint must be timely:


Disqualification: “We should “consider the length of time between the moment the conflict became apparent to the aggrieved party to the time the motion for disqualification is filed in determining whether the complaint was waived.” Wasserman v. Black, 910 S.W.2d 564, 568 (Tex. App.—Waco 1995, orig. proceeding). At the hearing on their motion for disqualification, Los Robles and Nors did not respond to Deadman’s waiver objection by attempting to explain their delay. In their response to the petition for writ of mandamus, Los Robles and Nors do not state when they first learned of a conflict, nor do they offer any explanation for why they waited until November 2017 to file their motion. Almost six months elapsed between the filing of the June 2017 Eighth Amended Petition and the November 2017 motion for disqualification, and Los Robles and Nors do not allege this petition was insufficient to put them on notice of the alleged conflict. EPIC Holdings, 985 S.W.2d at 52 (moving party satisfactorily explained delay). . . . Based on the unexplained delay in filing their motion for disqualification, we must conclude Los Robles and Nors waived their right to seek disqualification of Deadman as relators’ attorney.” In re Schmidt, No. 04-18-00077-CV, 2018 Tex. App. LEXIS 3241, at *10 (App.—San Antonio May 9, 2018)

Evidence: “In her brief, Mary relies on her motion for new trial to establish error. Mary attached some of her discovery responses to the motion to establish that Adam was on notice that the she intended to introduce evidence of her increased costs at trial. “While a motion for a new trial may preserve some errors, standing alone, it cannot preserve error related to the admission or exclusion of evidence.” Mandeville v. Mandeville, No. 01-15-00119-CV, 2015 Tex. App. LEXIS 12033, 2015 WL 7455436, at *5 (Tex. App.—Houston [1st Dist.] Nov. 24, 2015, no pet.) (mem. op.) (citing Tex. R. Evid. 103; Tex. R. App. P. 33.1). It is not presented during trial, as required for [*5] an offer of proof. See Tex. R. Evid. 103(c) (requiring offer of proof to be presented at trial). And it does not satisfy the requirements of a formal bill of exception. See Tex. R. App. P. 33.2(c) (establishing procedure for filing bill of exception). Moreover, the discovery responses attached to Mary’s motion for new trial do not reasonably summarize the evidence of Mary’s increased costs in comparison to her net resources. In her response to interrogatories, Mary summarized her current monthly expenses. She did not, however, identify which of those expenses had increased or by what amount. Mary’s complaints about the trial court’s exclusion of her evidence concerning her increased costs have not been preserved for appeal. We overrule Mary’s first, second, and third issues.” Jacob v. Jacob, No. 01-16-00835-CV, 2018 Tex. App. LEXIS 3276, at *4-5 (App.—Houston [1st Dist.] May 10, 2018)

Improper Jury Argument: “The trial court ordered a new trial because Oiltanking made what the trial court deemed was an improper and prejudicial jury argument. In closing argument, Oiltanking argued, in part, that the evidence showed Stelly had a deteriorating orthopedic condition before and after the accident. Without objection, Oiltanking argued Stelly’s disregard of a doctor’s light duty restriction six weeks before the accident was “an accident waiting to happen[,]” that “instead of going on light duty, he fell[,]” and further argued that Stelly “shouldn’t have even been out there.”. . . .Generally, a complaint about an improper jury argument must be preserved by making an objection [*14] at the time the argument occurs, obtaining a ruling on the objection, and requesting an instruction that the jury disregard the improper remark. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). However, a complaint of incurable jury argument may be asserted and preserved in a motion for new trial. Tex. R. Civ. P. 324(b)(5). Because an instruction to disregard will typically cure any probable harm arising from an improper jury argument, to be incurable the argument must be so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” Goforth v. Alvey, 271 S.W.2d 404, 153 Tex. 449, 450-51 (Tex. 1954). “[I]ncurable argument is that which strikes at the very core of the judicial process.” Phillips, 288 S.W.3d at 883. When appropriate, a new trial may be ordered because “arguments that strike at the courts’ impartiality, equality, and fairness inflict damage beyond the parties and the individual case under consideration . . . [and] damage the judicial system itself by impairing the confidence which our citizens have in the system[.]” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 681 (Tex. 2008). Examples of incurable arguments include appeals to racial prejudice, extreme unsupported personal attacks on parties or witnesses, and unfounded accusations of manipulating a witness. Id. Oiltanking’s [*15] argument that Stelly was at fault for violating his doctor’s medical restrictions on the date of the accident neither appealed to racial or ethnic bias, nor perpetrated an extreme personal attack on Stelly or an unsupported inflammatory allegation of illegal or immoral conduct by Stelly or his counsel. Because the argument was not incurable, the trial court clearly abused its discretion by granting a new trial.” In re Enter. Refined Prods. Co., LLC, No. 09-18-00069-CV, 2018 Tex. App. LEXIS 3503, at *13-15 (App.—Beaumont May 17, 2018)

You have to comply with other pertinent rules:


Evidence: “Castanon supports her argument [that the trial court erred in determining it did not have jurisdiction to protect her infant son against the child’s father] by citing an excerpt of the reporter’s record from the hearing on the protective order in which the trial court “declined” to consider evidence pertaining [*3] to the inclusion of the parties’ infant son on the protective order due to its determination that the question of whether the infant should be protected from his father should be considered by a court in the context of a SAPCR. That excerpt reads: . . . ‘Counsel: We are also going to be able to put on evidence to show that he tried to take the baby while she was in the hospital. I can —Court: I’m not going to do anything with the infant if he doesn’t pose any type of physical danger to the infant. You’re not alleging that, are you? Counsel: When he did try to take the child from the hospital, yes. Court: I’m not going to do that. That’s for a SAPCR. It’s not for a protective order. I don’t know how many times I have to say that. That’s my position. Counsel: We’re just also concerned about his gang affiliations, his family connections — Court: I’m not going to enter any order with regard to their infant. His infant. All right .’ Besides this exchange and a couple of brief narrations later in the hearing in [*4] which the trial court, unprompted, reiterates its decision on the matter without further explication or objection, there is nothing else in the record excerpt or any proceedings preceding it reflecting the trial court’s determination on the issue of whether the infant may be included in the protective order. On this limited record, we cannot conclude that the district court erred or abused its discretion in declining to include the infant in the protective order, even assuming it had jurisdiction to make that determination. And to the extent this exchange could be viewed as indicating Castanon’s desire to present evidence about the issue of appellee’s alleged danger to the infant, Castanon has not preserved error as to any exclusion of evidence, nor has she raised exclusion of evidence as an issue on appeal. See Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2) (offer of proof).” Castanon v. Gomez-Valles, No. 03-17-00751-CV, 2018 Tex. App. LEXIS 3366, at *2-4 (App.—Austin May 15, 2018)

You have to get a ruling from the trial court on your complaint–but there are times when that ruling can be implicit:


Plea to the Jurisdiction: “Appellee argues that on June 15, 2015, the trial court granted the MDCs’ Motion and Plea to Jurisdiction as to all claims under the Texas Tort Claims Act and as to all claims for damages, [*17] but otherwise denied the rest of the plea and motion. By virtue of that order, the Appellee argues that Smedley retained injunctive claims against the MDCs through “the Takings Clause and Section 11.086 of the Water Code[,]” and he states the trial court later also denied in all respects the motion for summary judgment filed by the MDCs. . . . section 51.014(a)(8) of the Texas Civil Practices and Remedies Code, to which the Appellants cite as the basis for this interlocutory appeal. This subsection allows an appeal from an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001[.]” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). . . . In order for a party to be entitled to an interlocutory appeal, section 51.014(a)(8) requires a grant or denial of a jurisdictional challenge. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Even in the absence of an explicit denial of a jurisdictional challenge, however, if a trial court rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack, it has implicitly denied the jurisdictional challenge. Thomas, 207 S.W.3d at 339-40. This implicit denial satisfies section 51.014(a)(8) and gives the court of appeals jurisdiction to consider an otherwise impermissible interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R. App. P. 33.1(a)(2)(A); Thomas, 207 S.W.3d at 340.” City of Magnolia v. Smedley, No. 09-15-00334-CV, 2018 Tex. App. LEXIS 3488, at *16-19 (App.—Beaumont May 17, 2018)

Modification: “In bringing forth its first issue for review, the Landlord asserts that Xerox did not prove the TPA amended the Lease as a matter of law. The trial court, however, issued no such ruling. On review of the record, we agree that Xerox sought and the trial court granted partial judgment on the narrow basis of the TPA as a separate contract. See City of San Antonio v. Hardee, 70 S.W.3d 207, 212 (Tex. App.—San Antonio 2001, no pet.) (recognizing that an appellate court may accept admissions made in the briefs as true). Because the trial court was not asked to do so, the trial court made no ruling on the alternative theory—whether the TPA amended the lease as a matter of law. Given the circumstances, we conclude we are not authorized to review Issue One’s broad argument, and three of its four sub-arguments, as these arguments assert Xerox failed to prove an alternative [*20] theory abandoned and not ruled on below. Tex.R.App.P. 33.1(a)(1) and (2) (as a prerequisite of appellate review, the record must show the trial court made a ruling). An appellate court is not authorized to reverse a trial court’s judgment in the absence of properly assigned error.” 1320/1390 Don Haskins, Ltd. v. Xerox Commer. Sols., LLC, No. 08-16-00027-CV, 2018 Tex. App. LEXIS 3268, at *19-20 (App.—El Paso May 9, 2018)

As always, many opinions held that a party failed to preserve error by failing to raise its complaint at all in the trial court.  I won’t burden you with those.

Hope that helps.  See you next time.


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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