November 1, 2021
Table of Contents
Your complaint must be sufficiently specific–and here’s one that was (you don’t see this preservation requirement addressed very often)
Here is a lesson in the dangers of just referencing prior paragraphs by number in your post-trial motions–you need to ensure those paragraphs make the arguments you intend to preserve
I think all–or almost all–courts of appeals hold that the failure of a temporary injuction order to comply with Rule 683 is a complaint which can first be raised on appeal
You have to comply with other pertinent rules–like those set out in a bill of review
Findings of Fact
While I won’t profile them here, opinions this week reaffirmed that you must make complaint about the following in the trial court
Your complaint must be sufficiently specific–and here’s one that was (you don’t see this preservation requirement addressed very often):
Affidavit: “Appellant initially labels appellees’ objection a “blanket objection” and argues it is insufficient because it fails to identify which parts of the affidavit are objectionable. An improper blanket hearsay objection, for example, is an objection that fails to identify which parts of the challenged document contain hearsay. In re C.C., 476 S.W.3d 632, 635 (Tex. App.—Amarillo 2015, no pet.). That is not the situation we are presented with here. Instead, appellees specifically informed appellant, and the trial court, that they were objecting to every sentence contained in paragraph 7 of appellant’s affidavit because appellees believed those sentences contained hearsay and were also conclusory. This is sufficiently specific. See Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 797 (Tex. App.—Dallas 2013, no pet.) (stating that an “objecting party must make specific objections to each component part of a particular piece of evidence [*19] to preserve error on appeal.”).” Sutton v. Sutton, No. 14-20-00335-CV, 2021 Tex. App. LEXIS 8705, at *18-19 (Tex. App.—Houston [14th Dist.] Oct. 28, 2021)
Here is a lesson in the dangers of just referencing prior paragraphs by number in your post-trial motions–you need to ensure those paragraphs make the arguments you intend to preserve:
Evidence: In her third evidentiary complaint, Brenda argues that the trial court improperly excluded the diagnosis of Brenda’s injuries. Specifically, Brenda argues that the trial court “permitted an overly broad redaction of Brenda’s medical records, which excluded basic facts about Brenda’s condition. In doing so, the trial court denied her the means to show the jury the entire scope of the attendant circumstances so it could properly decide the case.” Olagundoye responds that the issue was waived because Brenda failed to make an offer of proof.
Brenda complains about overly broad redactions in her medical records included in plaintiff’s exhibits 21 and 22. Both of these exhibits were from Brenda’s previously designated medical experts. Because Brenda had de-designated her experts before trial, the trial court stated that she could not admit their expert testimony through the medical records. After the close of evidence, the trial court told Brenda’s counsel that if she wanted the exhibits admitted, they could only be admitted with the redactions.
Brenda does not cite to anywhere in the record where she made an offer of [*24] proof of the unredacted exhibits. See HN8 Tex. R. Evid. 103(a)(2) (providing that if trial court’s ruling excludes evidence, then to preserve error, party must inform court of its substance by offer of proof, unless substance was apparent from context). Nor did she attempt to make a formal offer of proof after trial. See Tex. R. App. P. 33.2(c). Thus, the unredacted exhibits are not included in the appellate record, and we are precluded from determining whether the trial court made overly broad redactions to these exhibits.” Ezenagu v. Olushegun Olagundoye & Kinghaven Counseling Grp., No. 01-20-00334-CV, 2021 Tex. App. LEXIS 8712, at *23-24 (Tex. App.—Houston [1st Dist.] Oct. 28, 2021)
Factual Sufficiency: “Here, Brenda filed a motion for new trial and a supplemental motion for new trial. Both motions include a heading, “Legally Appropriate Reasons for New Trial,” and under that heading, it states, “Factual sufficiency of the evidence.” The motion for new trial further states, “[T]here is a question of the factual sufficiency of the evidence presented to the jury as detailed in paragraphs 6-9.” Paragraphs 6-9, however, merely complain of the trial court’s improper exclusion of evidence, denial of a retaliation instruction, and the trial court’s request to read a jury instruction off the record.
Likewise, the supplemental motion for new trial refers to factual sufficiency of the evidence as detailed in paragraphs 11-16 and 18-20. As before, paragraphs 11-16 and 18-20 do not argue that any of the jury’s answers were factually insufficient. Instead, those paragraphs raised issues concerning the trial court’s improper [*18] exclusion of evidence. Because Brenda’s motion for new trial and supplemental motion did not raise a specific complaint about the factual sufficiency of any jury finding, the issue was not preserved.” Ezenagu v. Olushegun Olagundoye & Kinghaven Counseling Grp., No. 01-20-00334-CV, 2021 Tex. App. LEXIS 8712, at *17-18 (Tex. App.—Houston [1st Dist.] Oct. 28, 2021)
I think all–or almost all–courts of appeals hold that the failure of a temporary injuction order to comply with Rule 683 is a complaint which can first be raised on appeal:
Temporary Injunction: “[T]the temporary injunction order in this case is void [because it did not satisfy the requirements of Rule 683]. Appellee argues Vista Bank did not preserve this issue for appellate review because it did not object in the trial court to the lack of specificity in the order. See TEX. R. APP. P. 33.1(a)(1). However, Vista Bank asserted in its post-order Motion to Dissolve or Modify the Temporary Injunction that “[t]he temporary injunction is void because it fails [*10] to state the reasons for the restrained activities as required.” Even if Vista Bank had not preserved error, the issue would not be waived. “Because a temporary injunction order that fails to comply with rule 683 is void, a party cannot waive the error . . . .” Indep. Capital Mgmt., 261 S.W.3d 795, n.1. Furthermore, “[a]n appellate court can declare a temporary injunction void even if the issue has not been raised by the parties.” Id. at 795 (quoting City of Sherman v. Eiras, 157 S.W.3d 931, 931 (Tex. App.-Dallas 2005, no pet.)). Therefore, we could declare the temporary injunction order void even if Vista Bank had not raised the failure to comply with Rule 683 in the trial court or in its appellant’s brief. We sustain Vista Bank’s third issue to the extent it complains of the lack of specificity in the temporary injunction order.” Vista Bank v. Nelezer, Inc., No. 05-21-00348-CV, 2021 Tex. App. LEXIS 8807, at *9 (Tex. App.—Dallas Oct. 29, 2021)
You have to comply with other pertinent rules–like those set out in a bill of review:
Evidence: “In her first evidentiary complaint, Brenda asserts that the trial court improperly excluded the testimony of her sister, Ijeoma, because Brenda did not disclose Ijeoma’s address in discovery. Olagundoye responds that the trial court did not err in excluding the testimony and that Brenda failed to preserve the issue….At trial, Brenda never called Ijeoma as a witness or made an offer of proof. See Tex. R. Evid. 103(a)(2) (providing that if trial court’s ruling excludes evidence, then to preserve error, party must inform court of its substance by offer of proof, unless substance was apparent from context). Brenda also did not attempt to make a formal offer of proof after trial. See Tex. R. App. P. 33.2(c).In her reply brief, Brenda argues that she made the trial court aware of the substance of Ijeoma’s testimony so that a formal offer of proof was not necessary. Brenda cites to three places [*22] at trial where she made the trial court aware of Ijeoma’s testimony. We disagree with Brenda’s assertion that she made the trial court aware of Ijeoma’s excluded testimony. Although Brenda cites to three places in the record, those record citations were merely cross-examination questions posed by Brenda’s counsel to Olagundoye and do not present this Court with the substance of the excluded testimony. Because Brenda did not present an offer of proof or a bill of exception, we conclude that Brenda has waived any error in the exclusion of Ijeoma’s testimony.” Ezenagu v. Olushegun Olagundoye & Kinghaven Counseling Grp., No. 01-20-00334-CV, 2021 Tex. App. LEXIS 8712, at *21-22 (Tex. App.—Houston [1st Dist.] Oct. 28, 2021)
Findings of Fact: “ Section 6.711(a) of the Family Code provides that, in a suit for dissolution of marriage, on the request of a party the court shall state in writing its findings of fact and conclusions of law regarding (1) the characterization of each party’s assets, liabilities, claims, and offsets on which disputed evidence has been presented, and (2) the value or amount of the community estate’s assets, liabilities, claims, and offsets on which disputed evidence has been presented. Tex. Fam. Code Ann. § 6.711(a). However, as the Fort Worth Court of Appeals has held, a party must specifically request findings under section 6.711(a) to preserve for [*67] appeal any error associated with the trial court’s failure to make findings regarding the valuation of certain assets. See Logsdon v. Logsdon, No. 02-14-00045-CV, 2015 Tex. App. LEXIS 12121, 2015 WL 7690034, at *10 (Tex. App.—Fort Worth Nov. 25, 2015, no pet.) (mem. op.) (“Because Wife initially requested findings under rule 296, did not request findings under section 6.711, and requested additional findings under family code section 7.009, we hold that Wife waived her right to section 6.711 findings.”); see also Moore v. Moore, 383 S.W.3d 190, 200-01 (Tex. App.—Dallas 2012, pet. denied) (holding that initial request for findings of fact pursuant to Rule 296 waived right to section 6.711 findings requested after the expiration of time for initial request for fact findings).
Here, neither Husband’s original request for findings of fact and conclusions or law nor his request for additional findings referenced Texas Family Code section 6.711(a). Based on the authorities discussed above, we conclude Husband waived his right to findings under section 6.711 regarding the valuation of certain assets.” Maxwell v. Maxwell, No. 14-20-00298-CV, 2021 Tex. App. LEXIS 8631, at *66-67 (Tex. App.—Houston [14th Dist.] Oct. 26, 2021)
Jury Charge: “To preserve error, the complaining party must specifically object, clearly identify the error, and explain the grounds for the objection. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). The primary purpose served by objections to a court charge is to apprise the trial court of error, thus affording the court the opportunity to correct the error…..Where a party’s objections are too general and too profuse it cannot be said that the trial court was fully cognizant of the grounds of the objection [*27] and deliberately chose to overrule it….Thus, where a party’s objection is obscured or concealed among voluminous, general, unfounded objections, it will not preserve error. See Tex. R. Civ. P. 274.
Choksi did not submit a proposed jury charge for question four and did not object to the question during the charge conference before the charge was read to the jury. With respect to Choksi’s complaint about jury question three for the reasons discussed above in the fraud analysis, we determine the evidence was sufficient to warrant its submission. HN13 Tendering a proposed jury question or instruction will not suffice to preserve error when a proper objection has not been made to the question or instruction submitted…..”A request for submission is required to preserve the right to complain of a trial court’s failure to submit a question; whereas, an objection is required to preserve a complaint as to a defective question.” Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162, 166 (Tex. App.—San Antonio 1993, writ denied) (citing Tex. R. Civ. P. 274, 278). Appellants did not specifically object to jury question four on the basis that it contained broad form language and failed to delineate liability between GHPMA or Choksi, nor did they explain to the trial court why or how the language rendered the question defective. [*28] See Tex. R. Civ. P. 274. We conclude that Choksi failed to preserve his objection to preserve the errors asserted in issue three. See id. We overrule this issue.” Texienne Oncology Ctrs., PLLC v. Chon, No. 09-19-00356-CV, 2021 Tex. App. LEXIS 8741, at *26-28 (Tex. App.—Beaumont Oct. 28, 2021)
All for now. Y’all stay safe and well.
Yours, Steve Hayes