May 22, 2021
Dear Friends:
Here are error preservation concepts addressed by courts this last week:
These parties preserved their complaint by raising it in their summary judgment motions
Res Judicata (Claim-Splitting)
Though courts still have not devised a consistent test (in my opinion) to say this, the complaint you raise on appeal must be the complaint you raise at trial
Double Recovery/Offset
Expert
Witness
Your complaint must be timely
Evidence
You must get a ruling on your complaint
Discovery
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Evidence
Evidence
Extension (Parental Right Termination)
Judicial Bias
Blurbs
These parties preserved their complaint by raising it in their summary judgment motions:
Res Judicata (Claim-Splitting): “DEK-M’s primary counter-argument is that CCCAD and the Buyers waived the affirmative defense of res judicata by failing to object to “claim-splitting.” Under the single-action rule, a plaintiff has “one indivisible cause of action for all damages arising from a defendant’s single breach of a legal duty.” Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 646-47 (Tex. 2000). Res judicata normally prevents “claim-splitting” in violation of the single-action rule, . . . . But, DEK-M failed to show that it split its claims. As CCCAD and the Buyers pointed out in their summary-judgment motions, DEK-M admitted in its Bill of Review that the same claims it asserted in the Tax Suit were also litigated in the Title Suit. Those claims were not “split”; they were identical.” In re DEK-M-Nationwide, Ltd., No. 14-19-00571-CV, 2021 Tex. App. LEXIS 3952, at *17-18 (Tex. App.—Houston [14th Dist.] May 20, 2021)
Though courts still have not devised a consistent test (in my opinion) to say this, the complaint you raise on appeal must be the complaint you raise at trial:
Double Recovery/Offset: “Finally, Ghrist argues that deducting $1,821.42 from his recovery against the Ferguson Parties constitutes a double recovery to those parties because his damages calculation already accounted for that sum. The record does not reflect, however, that Ghrist preserved this error by raising it in the trial court. See Tex. R. App. P. 33.1. Ghrist urges that the “setoff issue was raised in post-trial motions” and specifically cites to his proposed judgment and his second amended motion for judgment. Both of those documents assert arguments based on a right of offset. But neither document contains any assertion of a potential double recovery, and we have not found anywhere else in the record that Ghrist brought this complaint to the attention of the trial court. Cross-issue three is waived. See id.” J. Michael Ferguson, P.C. v. Ghrist Law Firm, PLLC, No. 02-18-00332-CV, 2021 Tex. App. LEXIS 3960, at *75 (Tex. App.—Fort Worth May 20, 2021)
Expert: “To the extent that Father’s objection could be construed as complaining that the psychological evaluations were inadmissible hearsay, that complaint does not comport with the complaint Father makes on appeal—that the psychologist was an unqualified expert. Father has thus failed to preserve this complaint for our review, and we overrule this portion of the parents’ eighth issue. See Tex. R. App. P. 33.1(a);” In the Interest of R.H., No. 02-20-00396-CV, 2021 Tex. App. LEXIS 3955, at *33 (Tex. App.—Fort Worth May 20, 2021)
Witness: “We review a trial court’s decision to admit or exclude a witness from testifying for an abuse of discretion. . . . Rivers objected to the Commissioners’ Report solely on the basis that the market values in the report were incorrect. The Agreed Decree of Partition did not require the commissioners to explain their methodologies in determining market values. To the extent, if any, Rivers argues on appeal that by preventing her from calling the commissioners as witnesses she was deprived of her opportunity to show the Commissioners’ Report was materially erroneous, or unequal and unjust, she did not make that objection at trial, and she did not make a proffer of evidence thereon, therefore she waived her objections on those grounds. See Tex. R. App. P. 33.1. We overrule issue two.” Rivers v. Page, No. 09-19-00312-CV, 2021 Tex. App. LEXIS 3944, at *24-25 (Tex. App.—Beaumont May 20, 2021)
Your complaint must be timely:
Evidence: “On appeal, the parents assert that the trial court erred by overruling this objection “as to [the] right to cross-examination of the witnesses’ statement that . . . Mother was ‘unable to care properly for her children.'” As best we can tell, the parents’ trial objection and complaint on appeal appear to be that the trial court’s admission of the psychologist’s evaluations under the business-records exception to the hearsay rule deprived them of their right to cross-examine the psychologist who examined the parents and prepared the evaluations. But by the time Mother and Father lodged this objection, the evaluations had already been admitted into evidence and their objection was too late. See id. We thus overrule the remainder of the parents’ eighth issue.” In the Interest of R.H., No. 02-20-00396-CV, 2021 Tex. App. LEXIS 3955, at *35 (Tex. App.—Fort Worth May 20, 2021)
You must get a ruling on your complaint.
Discovery: “ Schultz supports this argument by explaining that WFG objected to many of his discovery requests. While there are references in the record to a motion to compel [*11] discovery filed by Schultz, there is no record of the trial court ruling on any such motion. Likewise, there is nothing in the record indicating that the trial court ruled on WFG’s discovery objections. Because Schultz did not obtain a ruling relating to any purported discovery abuses by WFG before the trial court’s decision on WFG’s special appearance, we conclude this argument presents nothing for our review. Tex. R. App. P. 33.1(a);” WFG Nat’l Title Co. v. Schultz, No. 14-19-00570-CV, 2021 Tex. App. LEXIS 3835, at *10-11 (Tex. App.—Houston [14th Dist.] May 18, 2021)
All for now. Y’all stay safe and well, and enjoy the weekend.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com