Error Preservation in Texas Civil Cases, November 14, 2020

November 14, 2020

Dear Friends:

I think this week marks the first time since I started this project that courts did not cite TRAP 33.1 in deciding error preservation issues.  Admittedly, courts did not decide many error preservation decisions this week; still . . . .

Table of Contents

It is always best to obtain written rulings on your objections to summary judgment evidence before the trial court rules on the summary judgment motions, but this case emphasizes that you at least need to obtain written rulings on those objections before filing your notice of appeals

Everyone agrees that a party must raise objections to the form of affidavits in the trial court-and if there is a question or conflict as to whether an objection is as to form or substance, raise the objection in the trial court

You may first complain on appeal as to standing, as a component of subject matter jurisdiction

The Blurbs

It is always best to obtain written rulings on your objections to summary judgment evidence before the trial court rules on the summary judgment motions, but this case emphasizes that you at least need to obtain written rulings on those objections before filing your notice of appeals:

Summary Judgment Evidence: “We conclude that the trial court lost plenary power over cause number 16-06-07514 after [*37] Appellants appealed the summary judgment and the orders ruling on the objections to the summary judgment evidence are void for lack of jurisdiction. See Offshore Express, Inc., 2018 Tex. App. LEXIS 10272, at *16.” Syphrett v. Nationstar Mortg. Co., L.L.C., No. 09-18-00451-CV, 2020 Tex. App. LEXIS 8787, at *36-37 (Tex. App.—Beaumont Nov. 12, 2020)

Everyone agrees that a party must raise objections to the form of affidavits in the trial court-and if there is a question or conflict as to whether an objection is as to form or substance, raise the objection in the trial court:

Affidavits: “We turn to Appellants’ complaints regarding the summary judgment evidence, which they raise for the first time on appeal. Appellees argue that Appellants waived most of these objections by failing to preserve them in the trial court, and for others, failed to show how they were harmed. Objections to the form of an affidavit must be preserved by raising and obtaining a ruling on the objection in the trial court. . . . Here, Appellants complain that Peacock, Cleveland, and Detective Kokenes’s affidavits contain inadmissible hearsay. However, objections that affidavits contain opinion or hearsay is an objection to the form of the affidavit. . . . . Appellants more specifically assert that Peacock and Crawford’s affidavits failed to include financial records referenced in the affidavits. We have previously concluded that failure to attach records to an affidavit in support of summary judgment is a defect of form, not substance. See . . . . trial court to properly preserve this issue for appeal. . . . Having failed to do so, we determine they have not preserved these complaints for our review. . . . Tex. R. Civ. P. 166a(f) (“Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.”).” Reed v. Cleveland, No. 09-19-00136-CV, 2020 Tex. App. LEXIS 8789, at *13-14 (Tex. App.—Beaumont Nov. 12, 2020)

You may first complain on appeal as to standing, as a component of subject matter jurisdiction:

Standing: “To the extent Linda asserts that appellants cannot complain for the first on appeal that she lacks standing, her assertion is not supported by authority, and is contrary to the law. Standing, as a component of subject matter jurisdiction, is a constitutional prerequisite to the filing of suit, the absence of which may be raised for the first time on appeal or sua sponte by this Court. . . . Thus, Linda’s lack of preservation argument as to her standing to challenge the MPA fails.” Moody v. Moody, No. 14-18-01018-CV, 2020 Tex. App. LEXIS 8723, at *11 (Tex. App.—Houston [14th Dist.] Nov. 10, 2020)

All for now.  Enjoy what promises to be a beautiful Saturday, Sunday, and the remainder of next week.

Yours, Steve Hayes

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

Leave a Comment

Your email address will not be published. Required fields are marked *

Archives

Law Office of Steven K. Hayes

500 Main Street, Suite 340
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436
Email: shayes@stevehayeslaw.com

Scroll to Top