May 8, 2021
Dear Friends:
Happy Mother’s Day to all my maternal friends! Enjoy the great weather, and the fact that there does, in fact, seem to be light at the end of the tunnel. Here are the preservation issues which courts opined about this week:
Your complaint must be sufficiently specific and brought to the trial court’s attention–and mentioning a complaint in the prayer of a response to a post-verdict motion, without more, may not be enough
Prompt Pay Interest:
A complaint that certain juvenile statutes are unconstitutional as applied to an intellectually disabled person is timely if raised in a motion for new trial
Constitution (As Applied Challenge)
You have to get a ruling on your complaint
Continuance
Your complaint must be timely
Reinstatement
While I won’t profile them here, opinions this week reaffirmed that must make complaint about the following in the trial court
Constitution (Due Process/Continuance)
Constitution (Access to Court)
Security
Jury Charge
Discovery
Reinstatement
Associate Judge
Representative (Incapacitated Person)
Expert (Reliability)
Blurbs
Your complaint must be sufficiently specific and brought to the trial court’s attention–and mentioning a complaint in the prayer of a response to a post-verdict motion, without more, may not be enough:
Prompt Pay Interest: “Generally, to preserve error for our review, the complaining party must raise the complaint before the trial court by way of a timely request, objection, or motion and either obtain an express or implicit ruling or pursue the request until the trial court refuses to rule. See Tex. R. App. P. 33.1(a). Filing a motion with the trial court clerk does not establish that the motion was properly presented to the trial court. [cases omitted here] ‘A trial court is not required to consider or rule on a motion that has not been called to [*39] its attention.’ Johnson, 2013 Tex. App. LEXIS 5808, 2013 WL 1955862, at *4.
Rivera never moved for the award of prompt pay interest. Rivera’s only post-verdict mention of prompt pay interest was a brief reference in the prayer of his response to Horizon’s post-verdict motions and in an attached exhibit. Rivera did not file any post-judgment motion to modify the award of interest. Under these circumstances, we conclude that he has waived his complaint regarding prompt pay interest.” 4922 Holdings, LLC v. Rivera, No. 14-19-00922-CV, 2021 Tex. App. LEXIS 3420, at *38-39 (Tex. App.—Houston [14th Dist.] May 4, 2021)
A complaint that certain juvenile statutes are unconstitutional as applied to an intellectually disabled person is timely if raised in a motion for new trial.
Constitution (As Applied Challenge): “The State argued in its response to Appellant’s amended motion for new trial that Appellant had failed to raise his as-applied challenge during the transfer hearing. An as-applied challenge must be raised in the trial court, but it need not be raised during the transfer hearing. See generally Gillenwaters v. State, 205 S.W.3d 534, 538 (Tex. Crim. App. 2006) (holding that appellant’s motion for new trial was sufficient under Rule 33.1 to preserve for appellate consideration his “unconstitutionally vague as applied” challenge to telephone harassment statute). Because Appellant raised all of his as-applied challenges, except for the one he labels as his “right to the rules of evidence,” in his timely amended motion for new trial and obtained a ruling on the motion, we hold that other than that one exception, Appellant preserved his as-applied challenges to Section 54.02. See id.; see also In re O.R.F., 417 S.W.3d 24, 44 (Tex. App.—Texarkana 2013, pet. denied) (mem. op. on reh’g) (assuming that appellant had preserved her as-applied challenge by raising it for the first time in her motion for new trial even though she could have raised her complaint at any point prior to the judgment).” In re A.K., No. 02-20-00410-CV, 2021 Tex. App. LEXIS 3499, at *39 n.10 (Tex. App.—Fort Worth May 6, 2021)
You have to get a ruling on your complaint:
Continuance: “Careington’s first and third issues argue that the trial court erred by denying Careington’s motion for continuance. Careington also appears to argue that the trial court erred by not compelling First Call to respond to Careington’s discovery requests. But the trial judge denied Careington’s motion for continuance and granted First Call’s special appearance without ruling on Careington’s motion to compel. Thus, we do not address any argument Careington may be asserting that the trial court should have compelled responses to particular discovery requests. See HN8 Tex. R. App. P. 33.1(a)(2) (error not preserved unless trial court ruled or trial court refused to rule and complaining party objected to the refusal). We address Careington’s arguments only as they relate to the denial of its continuance motion.” Careington Int’l Corp. v. First Call Telemedicine, LLC, No. 05-20-00841-CV, 2021 Tex. App. LEXIS 3383, at *13 (Tex. App.—Dallas May 3, 2021)
Your complaint must be timely.
Reinstatement: “ The Supreme Court has “repeatedly held that the time limits provided in rule 165a are mandatory and jurisdictional and that orders of reinstatement entered after their expiration are void.” Walker v. Harrison, 597 S.W.2d 913, 915 (Tex. 1980) (orig. proceeding). “When the party seeking reinstatement of the case has actual knowledge of the dismissal within 20 days of the order of dismissal, an attempt to reinstate the case more than 30 days after the order has been signed is void because the court is without jurisdiction.” Id. Here, Appellants’ second motion to reinstate was [*9] filed well beyond the thirty-day period after the order of dismissal was signed. Therefore, the trial court correctly reasoned that it lacked plenary power to consider Appellants’ second motion to reinstate. Because Appellants failed to timely file their second motion to reinstate, the trial court lacked plenary power to rule on it. Appellants have thus waived any complaint on appeal regarding the merits of their second motion to reinstate. See Tex. R. App. P. 33.1(a);” Cummings v. Billman, No. 02-20-00034-CV, 2021 Tex. App. LEXIS 3502, at *8-9 (Tex. App.—Fort Worth May 6, 2021)
Y’all take good care, enjoy the weekend, and stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com