May 2, 2021
Dear Friends:
Table of Contents
The Supreme Court addressed several error preservation concepts this week: 1) for a complaint first raised on appeal, which has to be raised in the trial court,, the Court can only consider the jurisdictional aspects of the complaint; and (2) to remind us that grounds which affirm the trial court ruling are not typically subject to the error preservation rules; 3) you typically have to complain about a lack of findings in the trial court; and 4) not all statutory requirements are jurisdictional
Findings
Hearing (Record, Notice)
Jurisdiction (Government contract)
Statutory Requirements
Extension (Parental Right Termination)
One case confirms that a complaint–even a constitutional complaint–about a Zoom hearing has to be timely raised in a sufficiently specific manner, just like other complaints
Zoom Hearing
If you intend to rely on the complaint of another party, you have to adopt that complaint in the trial court
Associate Judge
Your complaint must be timely
Associate Judge
You must get a ruling on your objection
Default Judgment (New Trial)
Evidence (Summary Judgment)
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Constitution (Interpreter)
Evidence
Discovery
Summary Judgment
Jury Charge
Jury Charge
Pleading
Blurbs
The Supreme Court addressed several error preservation concepts this week: 1) for a complaint first raised on appeal, which has to be raised in the trial court,, the Court can only consider the jurisdictional aspects of the complaint; and (2) to remind us that grounds which affirm the trial court ruling are not typically subject to the error preservation rules; 3) you typically have to complain about a lack of findings in the trial court; and 4) not all statutory requirements are jurisdictional:
Findings: “Here, the trial court held an oral hearing on the Department’s motion for continuance weeks before the initial dismissal date. No party filed a response opposing a continuance of the trial date or extension of the dismissal date. Indeed, the docket entry created on the date of the oral hearing reflects that the trial court granted the extension and that the parties agreed to the continuance of the trial. The parents now complain about the absence of written findings required by section 263.401(a). We note, first, that nothing in the record reflects the parents ever raised this complaint in the trial court. See Tex. R. App. P. 33.1. More importantly, the parents ignore that trial courts are empowered to make the section 263.401(a) findings in writing in a separate instrument or orally in the presence of a court reporter. [*20] Tex. Fam. Code § 101.026. Where, as here, the trial court held an oral hearing on the proposed extension and the parties failed to bring forth the record of that hearing on appeal, we will presume the trial court made the necessary findings to support the extension orally on the record at the hearing.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *19-20 (Apr. 30, 2021)
Hearing (Record, Notice): “We also reject the parents’ contention that the absence of a record of the hearing supports their claim that there was insufficient evidence to support the findings required by section 263.401(b). In the absence of a record, we presume the evidence was sufficient to support the trial court’s findings. See In re D.S., 602 S.W.3d 504, 510 n.9 (Tex. 2020). It is Mother and Father, not the Department, who are challenging the trial court’s extension of the dismissal date. It is thus the parents who bore the burden to bring forth on appeal a record to demonstrate the absence of evidence to support the required findings. See id. Moreover, to preserve their complaints about the absence of a record of the hearing, inadequate notice of the hearing, or the trial court’s purported failure to hold a hearing, the parents were required to raise these complaints in the trial court. They failed to do so, and these complaints are therefore waived. See Tex. R. App. P. 33.1.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *22 (Apr. 30, 2021)
Jurisdiction (Government contract): “Kinder Morgan argues that (1) the Taxing Units’ attorney was engaged as a “tax ferret” under unapproved—and therefore void—contingent-fee agreements, (2) a void contract cannot be ratified by the Taxing Units, so the attorney’s actions under the tax ferret contracts also cannot be ratified, and (3) the attorney’s filings on behalf of the Taxing Units were therefore ineffective to invoke the trial court’s jurisdiction. . . . Because this issue was raised for the first time on appeal, we consider only whether a jurisdictional impediment bars the Taxing Units’ judicial-review suit. To that end, we need not determine whether counsel is a tax ferret, whether any or all of the contingent-fee contracts are void for want of Comptroller or Attorney General approval, or whether counsel is disqualified from continued representation on that basis or any other because even if the contracts are void, that circumstance alone does not nullify the Taxing Units’ bona fide attempt to invoke the trial court’s jurisdiction over their appeal from the ARB’s order denying the challenge petitions. Accordingly, we assume, without deciding, that the Taxing Units engaged legal counsel under impermissible contingent-fee engagements.” Sacroc v. Scurry Cty., No. 19-1122, 2021 Tex. LEXIS 342, at *18 (Apr. 30, 2021)
Statutory Requirements: “In sum, we conclude that, while a trial [*24] court’s failure to timely extend the automatic dismissal date before that date passes—through a docket-sheet notation or otherwise—is jurisdictional, claimed defects relating to the other requirements of 263.401(b) are not. Accordingly, with the exception of a trial court’s failure to extend the automatic dismissal date before it passes, complaints regarding the trial court’s compliance with the requirements in subsection (b) must be preserved for appellate review. Because the parents failed to preserve them in this case, we hold their complaints regarding the timing and form of the order resetting the trial and dismissal dates are waived. See Tex. R. App. P. 33.1.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *23-24 (Apr. 30, 2021)
Extension (Parental Right Termination): “The court of appeals noted, “[i]t is undisputed [*8] the trial court did not grant an extension under [Family Code section 263.401] Subsection (b) or (b-1) [which has to do with extending the dismissal date on parental right termination cases].” Id. at 546. It likely reached this conclusion because the Department did not argue in its appellee’s brief that an extension had been granted. Indeed, the Department first raised this argument in its motion for en banc reconsideration. Mother and Father contend this argument came too late, and is therefore waived.
Our rules regarding preservation are clear that, with limited exceptions, a party cannot obtain reversal of a trial court’s judgment on appeal based on an error that was never raised in the trial court. See Tex. R. App. P. 33.1(a), 53.2(f). But our rules provide little guidance about what is required to preserve an argument that would support the trial court’s judgment if the court of appeals reverses that judgment. We addressed this issue in Gilbert Texas Construction, L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010). There, a construction company was sued for breach of contract, and its liability insurer denied coverage. Id. at 123. The trial court concluded the claim was covered, but the court of appeals reversed, holding the claim fell within an exclusion. Id. In this Court, the insured challenged the court of appeals’ judgment on the bases that (1) the exclusion did not apply; and (2) even if it did, an exception to the [*9] exclusion brought the claim back into coverage. Id.
We began by addressing the insurer’s argument that the insured waived its argument about the inapplicability of the exclusion by failing to brief that issue in the court of appeals and instead presenting it for the first time in a motion for rehearing. Id. at 125. We held that, because the insured prevailed in the trial court, it did not need to raise this argument in its appellee’s brief in the court of appeals, and it did not waive the issue by failing to do so. Id. We concluded: “[A] complaint arising from the court of appeals’ judgment may be raised either in a motion for rehearing in that court or in a petition for review in this Court.” Id.
We find this case indistinguishable from Gilbert. Here, the Department prevailed in the trial court, and therefore did not need to raise every argument supporting the trial court’s judgment in its appellee’s brief in the court of appeals. The Department’s complaint does not arise from any action of the trial court, but instead from the court of appeals’ judgment that the trial court’s jurisdiction terminated before it rendered the Final Decree. As we concluded in Gilbert, this complaint was not waived, [*10] but instead could be raised either in a motion for rehearing or a petition for review. See id.
In support of her waiver argument, Mother cites Texas Rule of Appellate Procedure 53.2(f), which governs the issues presented in a petition for review. Rule 53.2(f) states: “If the matter complained of originated in the trial court, it should have been preserved for appellate review in the trial court and assigned as error in the court of appeals.” Tex. R. App. P. 53.2(f). But this rule does not help the parents’ waiver contention. Here, the Department’s complaint did not “originate[] in the trial court.” Id. The Department obtained the relief it sought in the trial court, and thus had no reason to complain about the trial court’s extension of the dismissal date or the court’s subsequent Final Decree. Under Rule 53.2(f), there was nothing for the Department to preserve in the trial court and no error to assign in the court of appeals. Rather, the Department’s complaint regarding the failure to give effect to the extension of the dismissal date only arose in the court of appeals, when that court reversed the trial court’s judgment and vacated the Final Decree for lack of jurisdiction. Under these circumstances, the Department’s assertion of this argument both in a motion [*11] for rehearing and in its petition for review was timely. Accordingly, we reject the parents’ waiver argument. See Gilbert Tex. Constr., L.P., 327 S.W.3d at 125.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *7 (Apr. 30, 2021)
One case confirms that a complaint–even a constitutional complaint–about a Zoom hearing has to be timely raised in a sufficiently specific manner, just like other complaints.
Zoom Hearing: “Here, Mother objected to continuing the trial by videoconference, but the objection was late and not specific. Mother’s general reference to “constitutional protections” was too vague and indefinite to preserve a Confrontation Clause complaint for appeal. See Dupuy v. State, S.W.3d , , No. 14-19-00119-CR, 2020 Tex. App. LEXIS 3463, 2020 WL 1942410, at *7 (Tex. App.—Houston [14th Dist.] Apr. 23, 2020, pet. ref’d) (appellant’s bare objection on basis of “constitutionality” was not sufficiently specific to preserve complaint under Confrontation Clause); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (hearsay objection does not preserve confrontation complaint); Daniels v. State, 25 S.W.3d 893, 897 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (holding error not preserved by non-specific objection that evidence did not satisfy “the requirements of the Constitution and the Code of Criminal Procedure”). Although the trial court indicated an understanding that Mother would prefer an in-person hearing, the objection did not apprise the court of the complaint made on appeal that the Confrontation Clause required an in-person hearing. We conclude the constitutional issues raised on appeal were not preserved in the trial court. We overrule Mother’s first issue and the Children’s second issue.” In re D.B.S., No. 05-20-00959-CV, 2021 Tex. App. LEXIS 3153, at *14 (Tex. App.—Dallas Apr. 26, 2021)
If you intend to rely on the complaint of another party, you have to adopt that complaint in the trial court:
Associate Judge: “Through her first issue, Mother argues that the associate judge erred “by failing to [*4] return this case to the referring court for trial on the merits” after the Department timely filed an objection pursuant to Family Code section 201.005. We disagree and overrule the issue. . . . Here, the Department included in its original petition for termination, under the heading “Objection to Assignment of Case to Associate Judge,” an objection “to the assignment of this matter to an associate judge for a trial on the merits or presiding at a jury trial.” According to Mother, she relied on the Department’s objection and asserts this matter was required to be heard by the referring court. Because it was not, Mother argues she is entitled to a new trial on the merits before the referring court. First, only counsel for the Department made an objection to the associate judge hearing the case. Mother did not contend, nor does the record reflect, that she joined [*5] in or adopted the objection. She simply relied on the statute’s language in arguing that the transferor court should have heard the case. Yet, for a complainant to preserve error on appeal, “the record must show that . . . [his or her] complaint was made to the trial court by a timely request, objection, or motion.” Tex. R. App. P. 33.1(a)(1). . . .Since Mother neither invoked § 201.005(c) nor adopted the Department’s invocation of same, she has not preserved the issue for review.” B.F., No. 07-20-00349-CV, 2021 Tex. App. LEXIS 3319, at *3-5 (Tex. App.—Amarillo Apr. 30, 2021)
Your complaint must be timely.
Associate Judge: “ Second, the record further reflects that Mother uttered no complaint about the associate judge trying the matter until she filed her amended motion for new trial. By that time, the associate judge had completed his trial and rendered a decision. So too had the referring court signed and approved the final order of termination. These circumstances too raise a barrier to Mother’s complaint. We allude to the timeliness aspect of the rules about preserving complaints for review. [*6] It requires the complainant to raise his objection at . . . Mother’s first opportunity to complain about the associate judge trying the matter [*7] arose no later than when the associate judge called the case for trial. Having said nothing then, she lost her chance to object about it on appeal. To hold otherwise here would be to risk rewarding potential gamesmanship, condone delay, and thwart legislative intent urging the expeditious disposition of termination suits.” B.F., No. 07-20-00349-CV, 2021 Tex. App. LEXIS 3319, at *5-7 (Tex. App.—Amarillo Apr. 30, 2021)
You must get a ruling on your objection.
Default Judgment (New Trial): “The trial court signed its Final Judgment, from which this appeal is taken, on March 24, 2020. Appellants filed their Motion for New Trial on April 22, 2020, within thirty days of the date of the signing of the Final Judgment. However, the record is devoid of any hearing on this motion as well as any attempts to set this motion for hearing. It was ultimately overruled by operation of law. As set forth in the numerous cases cited above, a prerequisite for preserving error for appeal from denials of motions to set aside default judgments and grant new trials is that the movant must exercise diligence in having the motion heard by the court before the motion is overruled by operation of law. The movant is attempting to complain on appeal of the trial court’s abuse of discretion, so the trial court must have been given the opportunity to exercise its discretion before an appellate court can determine if it abused its discretion. Appellants, having failed to present their Motion for New Trial to [*8] the trial court for determination before it was overruled by operation of law, failed to preserve error on this point.” Century Sports Wears, Inc. v. Wallis Bank, No. 02-20-00201-CV, 2021 Tex. App. LEXIS 3297, at *7-8 (Tex. App.—Fort Worth Apr. 29, 2021)
Evidence (Summary Judgment): “Appellant’s first issue concerns his objections to Appellees’ summary judgment evidence. [*7] The rules of error preservation applicable during trial also apply in summary judgment proceedings. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164 (Tex. 2018) (per curiam) (citing Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317-18 (Tex. 2012) (per curiam)). When a summary judgment affidavit suffers from a defect in form, a party must object to the formal defect and secure a ruling from the trial court to preserve error. Id. at 166; see TEX. R. APP. P. 33.1; Tex. R. Civ. P. 166a(f). With one exception, Appellant objected to Appellees’ summary judgment affidavits on the ground that they contained hearsay. An objection that an affidavit contains hearsay is an objection to a defect in the form of the affidavit. S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.—Dallas 2011, no pet.). Appellant’s hearsay objections were not preserved for our review because the record does not reflect that the trial court ruled on the objections.” Sewell v. City of Odessa, No. 11-19-00121-CV, 2021 Tex. App. LEXIS 3312, at *6-7 (Tex. App.—Eastland Apr. 30, 2021)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com