Error Preservation in Texas Civil Cases, May 8, 2018

Dear All:

Table of Contents

Here is an interesting error preservation case involving the vexatious litigation code section of the Civil Practices and Remedies Code:


Vexatious Litigation: “Jones first argues that Anderson waived the opportunity to file a vexatious litigant motion because he filed the motion “more than two years after he was originally served with the other Defendants in 2014.” HN4 The time for filing a motion to have a person declared a vexatious litigant is prescribed by statute, and the proper construction of a statute is a question of law, which we review de novo. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Texas Civil Practice and Remedies Code section 11.051 states that “the defendant may, on or before the 90th day after the date the defendant files the original answer or makes a special appearance, move the court for an order: (1) determining that the plaintiff is a vexatious litigant; and (2) requiring the plaintiff to furnish security.” Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (West 2017). The record before us does not show that Anderson ever filed an answer or special appearance. His motion to have Jones declared a vexatious litigant appears to be the first document Anderson filed in this case. Indeed, Jones stated at the hearing on the motion that Anderson filed the vexatious-litigant motion “instead of filing an answer.” [*15] Jones cites no authority in support of her position that Anderson waited too long to file his motion. Although she points out that the Markel defendants filed a vexatious-litigant motion two years before Anderson did, the statute does not require a defendant to join a vexatious-litigant motion filed by another defendant. Because Anderson did not file his motion ninety or more days after filing an answer or a special appearance, we conclude that he did not waive the opportunity to move for a declaration that Jones is a vexatious litigant, and that his motion instead was timely filed.” Jones v. Anderson, No. 14-16-00727-CV, 2018 Tex. App. LEXIS 3044, at *14-15 (App.—Houston [14th Dist.] May 1, 2018)

Your complaint in the trial court must be sufficiently specific to make the trial court aware of your complaint, and must comport with the complaint you make on appeal:


Insurance: In its second appellate issue, Texas Farmers contends . . . it is still entitled to a reversal of the judgment because the portion of the judgment awarding Clack 18% interest pursuant to section 542.060(a) of the Insurance Code is improper. Texas Farmers argues the award is improper because: (1) it is not supported by Clack’s pleadings; and (2) an 18% post judgment interest award as exemplary damages is permitted only on the amount of the underlying insurance claim, not treble damages, attorney’s fees, prejudgment interest, or court costs. In addition, at the conclusion of the argument relating to section 542.060(a), Texas Farmers asserts in a single sentence that, “The claim for exemplary damages is barred because exemplary damages are not permitted under the DTPA or Chapter 541 of the Texas Insurance Code [*9] .” It then states the award under section 542.060(a) was improper because “it compounded the 18% interest annually.” However, we find we need not reach any of these issues because they have not been preserved for our review. . . . Here, in its motion for new trial, Texas Farmers’ complaint regarding any award of exemplary damages is found in the section on meritorious defenses and states, in its entirety: “Even if [Clack’s] claims for exemplary damages are not barred for other reasons, which they are, [Texas Farmers] would show that [Clack] cannot recover said damages under the standards set forth in Chapter 41 of the Tex. Civ. Prac. & Rem. Code and based on protections afforded by the United States Constitution and the Texas Constitution, Defendant further asserts the limits and caps on punitive and exemplary damages as set forth in Chapter 41 of the Tex. Civ. Prac. & Rem. Code [*10] , including but not limited to the limits and caps set forth in Section 41.008 of the Tex. Civ. Prac. & Rem. Code.” There is no reference to exemplary damages as post judgment interest under section 542.060(a) of the Insurance Code or compounding of such interest, and there is no challenge to the award of exemplary damages under the DTPA or Chapter 541 of the Insurance Code. Rather, the only reference is to exemplary damages under Chapter 41 of the Texas Civil Practice and Remedies Code and the federal and state constitutions. The complaint raised by Texas Farmers in the trial court was not sufficiently specific to advise the trial court that Texas Farmers was challenging the portion of the judgment awarding 18% interest under section 542.060(a) of the Insurance Code or the award of exemplary damages under the DTPA or Chapter 541 of the Insurance Code, nor are such complaints apparent from the context. See Tex. R. App. P. 33.1(a)(1). Additionally, the complaints set out in the motion for new trial regarding exemplary damages do not comport with any of the complaints raised in this appeal. . . . Accordingly, Texas Farmers has failed to preserve any of the complaints set forth in its second issue for our review.” Tex. Farmers Ins. Co. v. Clack, No. 04-17-00348-CV, 2018 Tex. App. LEXIS 3068, at *8 (App.-San Antonio May 2, 2018)

The complaint you raise on appeal must be the complaint you raised below:


Declaratory Relief: “Even if all of Promotions’s declaratory claims were dismissed, or had never been asserted, appellants would still face claims and causes of action asserted by Promotions that would subsume the subjects of the requested declarations, yet seek greater relief—the coercive remedies of damages and injunctive relief—that implicate the same “exercise of the right of association” on which appellants’ TCPA motion is predicated. Further, appellants waived any TCPA challenge to these broader claims by failing to raise it through a timely motion. With those broader claims and causes of [*26] action remaining in the case regardless, determination of appellants’ entitlement to TCPA relief against the declaratory claims, claims concerning mere component or subsidiary issues subsumed within the broader claims and causes of action that cannot now be attacked under the TCPA, would resolve a mere legal abstraction having no impact on any interests protected by that statute—the hallmark of unconstitutional advisory opinion—or alternatively would have been rendered moot in the inception by the limited scope of appellants’ motion.” Craig v. Tejas Promotions, LLC, No. 03-16-00611-CV, 2018 Tex. App. LEXIS 3126, at *25-26 (App.—Austin May 3, 2018)

Interception of communications: “In issue five, M.F. contends the trial court abused its discretion “in determining that [J.F.] did not unlawfully intercept [M.F.]’s electronic communications. . . .Although M.F. argued in her brief in support of her amended motion that J.F. illegally intercepted M.F.’s electronic communications, the motion itself sought to disqualify J.F.’s attorney and made no allegations against J.F. M.F. has failed to demonstrate on appeal that she preserved error with respect to her allegations against J.F., and she has failed to show that the trial court made a ruling regarding her purported allegations specifically against J.F. The trial court’s ruling on the motion to disqualify opposing [*24] counsel dealt solely with J.F.’s counsel and did not address M.F.’s allegation that J.F. individually violated the law by intercepting M.F.’s text or email communications. See Tex. R. App. P. 33.1. We overrule issue five.” In the Interest of R.F., No. 09-16-00240-CV, 2018 Tex. App. LEXIS 3130, at *23-24 (App.-Beaumont May 3, 2018)

You have to comply with the pertinent rules:


Evidence: “Knoblauch did not actually offer anything into evidence at this point, not the packet in its entirety or any of the individual documents. He also did not establish any predicate for their admission. The exchange regarding the bench brief occurred at the beginning of the third [*10] day of trial testimony, but it was not until days later that Knoblauch offered any of the packet documents into evidence. At that time, Knoblauch offered the letter and then the attached affidavit as separate exhibits, and the trial court admitted both. As the trial court found in its findings of fact, however, at no point did Knoblauch offer into evidence the packet in its entirety or the proposed order itself or obtain a ruling excluding these items from evidence. Accordingly, Knoblauch did not preserve error regarding admission of these documents during trial.” In the Interest of J.C.K., No. 14-17-00082-CV, 2018 Tex. App. LEXIS 3039, at *9 (App.-Houston [14th Dist.] May 1, 2018)

There were several cases in which courts held that parties did not preserve error because they did not raise the complaint in the trial court, but I won’t burden you with those here.

I hope this helps. Y’all take care.


Steve Hayes


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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