May 29, 2021
Dear Friends:
Tons of error preservation decisions this week, including a couple from SCOTX.
The Supreme Court weighed in on a preservation argument in a discovery battle this week
There is a case with a lengthy discussion of why a party did not waive its complaint that the TCPA did not apply to its claims, even though in the trial court it agreed that “the burden shifts to you to provide clear and specific evidence on each claim that you are making.”
Sometimes, the rules of preservation for a restrictive appeal by definition differ from the rules on a regular appeal, like having to do with preserving the complaint about lack of notice
The rule that your complaint on appeal must be the same as your complaint at trial extends to complaints you raise before an administrative law judge–a topic on which both a court of appeals and the Supreme Court weighed in this week–with SCOTX holding that the complaints before the ALJ were sufficiently specific
Timeliness
Continuance
Some complaints you can first raise on appeal–like the legal insufficiency of the evidence concerning a bench trial (including a bench trial on attorney’s fees)
When you raise your complaint and get a ruling, you preserve it
Judgment
Your complaint must be timely
Constitution
You must get a ruling on your complaint
Continuance
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Judicial Notice
Limitations
Service of Citation
The Blurbs
The Supreme Court weighed in on a preservation argument in a discovery battle this week:
Discovery: “We conclude that K & L Auto has no adequate remedy by appeal both because it has effectively been denied a reasonable opportunity to develop a defense that goes to the heart of [*31] its case, and because a reviewing court will be unable to evaluate the effect of the trial court’s denial of discovery from the third-party providers… In addition, an appeal here would be inadequate because the missing discovery is from a third party and cannot be made part of the appellate record or challenged on appeal, and the providers will not be parties to any appeal. …Although Walker and the providers suggest that K & L Auto waived any complaint about the discovery becoming part of the record by failing to request that [*33] it be included in the record or subjected to an in camera review, our precedent has never required such a request….The question is whether the discovery can be made part of the appellate record, or whether a trial court refused a proper request to do so, and whether an appellate court can review the effect of the error…. Here, the discovery is not and cannot be part of the record although much of it is likely relevant and critical to the reasonableness of the medical charges, and it would be difficult, at best, to determine on appeal whether the lack of discovery erroneously affected the outcome of the trial. Taking into account the relevant circumstances, the claims and defenses asserted, the type of discovery sought, what it is intended to prove, and the presence or lack of other discovery, we conclude that K & L Auto has no adequate remedy here.” In re K & L Auto Crushers, No. 19-1022, 2021 Tex. LEXIS 427, at *30-33 (May 28, 2021)
TCPA complaints: There is a case with a lengthy discussion of why a party did not waive its complaint that the TCPA did not apply to its claims, even though in the trial court it agreed that “the burden shifts to you to provide clear and specific evidence on each claim that you are making.” Neely v. Isaiah Derrick, No. 14-19-00706-CV, 2021 Tex. App. LEXIS 4189, at *7 (Tex. App.—Houston [14th Dist.] May 27, 2021). I’ll not provide you the discussion here, but you should go read it if your case involves preservation of a TCPA complaint. And another case this week emphasized that “though the parties do not address the issue of whether Pitre’s lawsuit involved a “communication,” this issue is not waived. The supreme court has instructed courts to take a broad view of error preservation in TCPA cases due to the statute’s “unique language.”” Allied Orion Grp. v. Pitre, No. 14-19-00681-CV, 2021 Tex. App. LEXIS 4191, at *5 (Tex. App.—Houston [14th Dist.] May 27, 2021)
Sometimes, the rules of preservation for a restrictive appeal differ from the rules on a regular appeal:
Notice: “Husband does not challenge that Wife met the three jurisdictional requirements to maintain a restricted appeal. Instead, he contends that because the record shows that the trial court properly notified Wife of the judgment, and therefore that Wife is presumed to have received timely notice of the judgment, Wife failed to preserve the right to complain about the default judgment via restricted appeal by failing to file a timely motion for new trial. See Tex. R. Civ. P. 324(b)(1). Husband conflates the prerequisites for filing a restricted appeal with the prerequisites for filing regular appeals. The two are not the same….But appellate-procedure Rule 30 requires the absence of a timely-filed “postjudgment motion” by the nonappearing party to invoke this court’s jurisdiction over a restricted appeal. Tex. R. App. P. 30. A motion for new trial is a postjudgment motion….Wife’s sufficiency arguments can be determined from the face of the record, Petco, 144 S.W.3d at 559 n.4; thus, her arguments are not the type on which “evidence must be heard,” Tex. R. Civ. P. 324(b)(1). To hold that Rule 324 requires a defaulting party to file a timely motion for new trial as a prerequisite to a restricted appeal “would preclude all restricted appeals.” Petco, 144 S.W.3d at 559 n.4. We therefore decline to hold that Wife failed to preserve her right to bring a restricted appeal of the no-answer default judgment.” B.K. v. T.K., No. 02-19-00472-CV, 2021 Tex. App. LEXIS 4156, at *2-3 (Tex. App.—Fort Worth May 27, 2021)
The rule that your complaint on appeal must be the same as your complaint at trial extends to complaints you raise before an administrative law judge–a topic on which both a court of appeals and the Supreme Court weighed in this week–with SCOTX holding that the complaints before the ALJ were sufficiently specific:
Timeliness: “The Commissioner argues that the Teachers filed inadequate “exceptions” to the ALJ’s proposal for decision and thereby failed to preserve error. The relevant administrative rule, promulgated by the Texas Education Agency, provides: “The exceptions shall be specifically and concisely stated. The evidence relied upon shall be stated with particularity, and any evidence or arguments relied upon shall be grouped under the exceptions to which they state.” 19 Tex. Admin. Code § 157.1059(e). The Commissioner found that the Teachers did not comply with this rule. The court of appeals reversed. The Commissioner argues in this Court that the Teachers’ exceptions were too vague to meet the rule’s specificity requirement. We agree with the court of appeals.
An agency must follow “the clear, unambiguous language of its own regulations.” [*26] TGS—NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). Whatever the effect of non-compliance with section 157.1059(e) may be, the Teachers argue their exceptions to the PFD complied with it. We agree. The Teachers made sufficient objections to the PFD to preserve their complaints regarding the scorecards. They filed 32 exceptions set out in 133 paragraphs. The exceptions included arguments that reasonably match the contentions carried forward in this appeal, including the arguments we ultimately find dispositive. The exceptions contend that the date the Teachers received their scorecards is the relevant date for determining compliance with the ten-day deadline: “All of NEA Dallas’s arguments made in the grievance process pertained to the class members’ Scorecards, and the manner in which each teacher was appraised, [and therefore] were timely filed on October 2, 2015, within ten days of the teachers’ receipt of the Scorecards on September 18, 2015.” The exceptions further argue that “[t]he claims made in NEA Dallas’s grievance were not ripe until the Scorecards were issued in the fall of 2015.”
These exceptions put the agency on sufficient notice that the Teachers intended to advance the arguments upon which we rely today. In promulgating its rule requiring [*27] specific exceptions, TEA itself stated that the purpose of requiring exceptions is simply “to ensure full presentation of all disagreements with the proposal for decision.” 29 Tex. Reg. 6887, 6888 (2004) (General Provisions for Hearing Before the Commissioner of Education). The exceptions did not have to fully elaborate the Teachers’ argument. They adequately captured the essence of the timeliness argument the Teachers later advanced in more detail in the courts. This was sufficient to preserve error in this context.” Davis v. Morath, No. 19-1035, 2021 Tex. LEXIS 428, at *25-27 (May 28, 2021)
Continuance: “By its third issue, the Department argues the county court erred when it reversed the ALJ’s order on the bases that (1) “[t]he second continuance order is ultra vires and was entered without legal power, authority or basis in statute or SOAH Rules” and (2) “[t]he same second order violated the Separation of Powers Clause” in the Texas Constitution. See Tex. Const. art. 2, § 1. Specifically, the Department argues that Gonzalez failed to preserve these arguments for the county court’s appellate review of the ALJ’s decision. We agree…. Here, when the Department asked the ALJ for a second continuance, Gonzalez responded:
This is the second motion, as the [Department] just mentioned. We have an objection to the continuance. We gave the [Department] a professional courtesy the first time, for the first continuance. We have no issue doing that once but the second time—this matter has been pending for a while. We do need the trooper here. He was duly subpoenaed. . . . So, we would respectfully request a continuance be denied and this case be dismissed.
Because Gonzalez did not assert his specific complaints at the administrative hearing, he failed to preserve them for the county court’s review, and they may not serve as grounds for reversing the ALJ’s decision. See Tex. R. App. P. 33.1;” Tex. Dep’t of Pub. Safety v. Gonzalez, No. 13-19-00600-CV, 2021 Tex. App. LEXIS 4174, at *11-12 (Tex. App.—Corpus Christi May 27, 2021)
Sanctions: “Raley also argues that the court had no legal basis for the sanctions under Rule 215, Rule 13, Chapter [*13] 10, or its inherent power. As acknowledged during oral argument, however, Raley did not raise this issue in his response to the sanctions motion, or otherwise object to the basis of the award in the court below. Instead, Raley argued only that the trial court lacked jurisdiction to make the award because the judgment had been superseded. Consequently, Raley has failed to preserve any alleged error concerning the basis for sanctions. See Tex. R. App. P. 33.1;” Raley v. Daniel K. Hagood, P.C., No. 05-19-00201-CV, 2021 Tex. App. LEXIS 4217, at *12-13 (Tex. App.—Dallas May 27, 2021)
Some complaints you can first raise on appeal–like the legal insufficiency of the evidence concerning a bench trial (including a bench trial on attorney’s fees):
Legal Sufficiency: Patricia argues Billy did not object to the attorney’s testimony on attorney’s fees. However, Billy is permitted to challenge the sufficiency of the evidence to support the trial court’s award of attorney’s fees for the first time on appeal. See Tex. R. App. P. 33.1(d);” Porter v. Porter, No. 04-20-00229-CV, 2021 Tex. App. LEXIS 4107, at *7 n.3 (Tex. App.—San Antonio May 26, 2021)
When you raise your complaint and get a ruling, you preserve it:
Judgment: “Patricia also contends Billy failed to timely object to the specific language of the decree he now complains about and thus has not preserved the error for appellate review. However, the record reflects Billy objected to the award of his disability benefits to Patricia during the final hearing and, after the entry of the final decree of divorce, Billy timely moved for a new trial arguing Patricia was erroneously awarded his disability benefits. The issue was therefore preserved. See Tex. R. App. P. 33.1.” Porter v. Porter, No. 04-20-00229-CV, 2021 Tex. App. LEXIS 4107, at *3 n.1 (Tex. App.—San Antonio May 26, 2021)
Your complaint must be timely:
Constitution: “Ospina waived any due process argument by failing to object in the trial court. The parties agree that at the May 2019 proceeding, the trial court stated its intention to restart the trial off the record. When the proceeding resumed on the record, Ospina made no objection to restarting trial. He did not object on the bases [*14] that he had not received sufficient notice that the trial court intended to restart the trial, that this procedure constituted an improper granting of a motion for new trial, or that this procedure violated his due process rights. The record contains no indication that this procedure caused any surprise or prejudice to Ospina. Ospina did not request a continuance to prepare for giving his testimony again or for cross-examining Garcia Florez. Raising these objections prior to the trial restarting would have alerted the trial court to any potential problems with the proposed procedure and would have allowed the trial court to grant relief—namely, a continuance—to ameliorate those concerns. But Ospina did not raise these objections until after the trial court rendered the divorce decree. Consequently, we conclude that Ospina did not preserve these complaints for appellate review. See Tex. R. App. P. 33.1(a);” Ospina v. Florez, No. 01-19-00465-CV, 2021 Tex. App. LEXIS 4165, at *13-14 (Tex. App.—Houston [1st Dist.] May 27, 2021)
You must get a ruling on your complaint.
Continuance: “Mother filed a motion on November 19, 2020, titled, “Emergency Motion for Discovery Modification and Trial Continuance” with an unsworn declaration and memorandum of law attached, but with no proposed order. And the [*15] record does not indicate the trial court ever ruled on her motion. Moreover, the clerk’s record does not contain an order wherein the trial court denied her motion. Therefore, because there is no evidence that Mother ever presented her motion to the trial court or obtained a ruling on her motion, Mother has waived her complaint that the trial court abused its discretion by failing to grant her motion for continuance.” In the Interest of E.S., No. 02-20-00407-CV, 2021 Tex. App. LEXIS 4153, at *14-15 (Tex. App.—Fort Worth May 27, 2021)
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Judicial Notice
Limitations
Service of Citation
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