Error Preservation in Texas Civil Cases, May 23, 2020

May 23, 2020

Dear Gang ‘O Mine:

I know all of you are aware of the ransomware attack on the efacilities of the Office of Court Administration.  OCA and the courts are working diligently to bring all the courts fully back online, but in the meantime the ransomware attack continues to affect the abilities of the appellate courts to function. The status of the OCA website, and the appellate courts’ functionality, continues to improve on an almost daily (and sometimes, hourly) basis, albeit in small increments. The old txcourts.gov website is up again, with partial functionality–for example, judicial biographies (some outdated) are up again, but using the Case Search feature will not produce a result.  More and more courts (specifically, as of this writing, the Houston First, Fort Worth, Austin, San Antonio, Dallas, Amarillo, El Paso, Eastland, Tyler, Corpus Christi and Houston Fourteenth Courts) are able to take advantage of the alternate website set up by OCA, www.txcourts.net, to post their opinions, and it looks like to me that Lexis (and I suspect Westlaw) continues to pick up those opinions. Everything I hear is that OCA and the courts continue to tirelessly stay after getting the networks up and running again, and diligently doing the work of the courts in the meantime, as existing resources allow.

As evidence of this latter fact, we have error preservation opinions this week, so let’s get on to those.

Table of Contents

This is one worth noting: while you have to raise a complaint that attorney’s fees are not recoverable in the trial court, you can do so in a post-trial motion

Remember–a party can raise a complaint about subjection matter jurisdiction for the first time on appeal

The Blurbs

This is one worth noting: while you have to raise a complaint that fees are not recoverable in the trial court, you can do so in a post-trial motion:

Attorney’s Fees: “Anthony argues that challenging the lack of statutory authority for attorney’s fees is a type of claim that cannot be waived and he cites Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) to support that proposition. However, Holland has at least one key distinguishing feature: as noted by the Texas Supreme Court, “[b]y asserting nonrecoverability [of attorney’s fees] in its motion for j.n.o.v., Wal-Mart gave the trial court ample opportunity to rule on the availability of attorney’s fees before an erroneous judgment was rendered.” Id. The court further noted that Wal-Mart “raise[d] a timely and specific objection in the trial court that attorney’s fees are not recoverable.” Id. at 95. Thus, Holland did not conclude that this type of claim can be raised for the first time on appeal; rather, the court concluded that raising the issue in a motion for j.n.o.v. sufficiently [*5] preserved the issue for appellate review. See id.

Unlike Holland, Anthony did not timely present to the trial court his challenge to the recoverability of attorney’s fees in this case. Anthony did not file a motion for j.n.o.v. to challenge the recoverability of attorney’s fees. And he cites no authority to show that this type of claim can be raised for the first time on appeal. Furthermore, Texas caselaw consistently holds that almost every type of claim can be waived. See, e.g., In re Baby Boy R., 191 S.W.3d 916, 921 (Tex. App.—Dallas 2006, pet. denied) (observing that even constitutional claims can be waived if not properly preserved); Jess v. Libson, 742 S.W.2d 90, 92 (Tex. App.—Austin 1987, no writ) (refusing to address appellee’s cross-issue concerning the recoverability of attorney’s fees because “the record contains no specific objection to the submission of the issue of attorney’s fees” and thus appellees failed to preserve the issue for review). Therefore, we overrule Anthony’s sole issue.” Snowden v. Artesia Wells Ranch 1994, Ltd., No. 13-19-00157-CV, 2020 Tex. App. LEXIS 4022, at *4-5 (Tex. App.—Corpus Christi May 21, 2020)

Remember–a party can raise a complaint about subjection matter jurisdiction for the first time on appeal:

Subject Matter Jurisdiction: “ In its first issue, Suite 900 argues that although the trial court initially had subject-matter jurisdiction over the Vegas’ claims, the Vegas divested the trial court of that jurisdiction when they withdrew the surplus sale proceeds from the County Court Registry. n. 13 n. 13 The Vegas argue that Suite 900 failed to preserve error regarding its first issue concerning subject-matter jurisdiction. However, subject-matter jurisdiction is an issue that may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).” Suite 900, LLC v. Vega, No. 02-19-00271-CV, 2020 Tex. App. LEXIS 4008, at *19, n. 13 (Tex. App.—Fort Worth May 21, 2020)

I’ve not included the opinions which address situations where complaints were not raised at all–save for Snowden, above, which pointed out the post-trial opportunities to complain about the recoverability of fees.

That’s all for now.  Y’all stay safe and well.

Yours,

Steve Hayes

817/371-8759; shayes@stevehayeslaw.com; www.stevehayeslaw.com

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