Error Preservation in Texas Civil Cases, November 19, 2018

Dear All:

Table of Contents

Some complaints can be raised for the first time on appeal–like ineffective assistance of counsel in a parental right termination case


A recent case brought to mind the split of authority on the issue of whether a complaint about the form of a temporary injunction order can first be raised on appeal. Austin and a few other courts say no–but the majority of courts say that this complaint can be first raised on appeal:


Temporary Injunction Order: “In response, the Grahams contend in part that, as a threshold matter, DHJB has failed to preserve for appellate review any argument that the order fails to comply with the specificity requirements of rule 683. This Court has long recognized that a complaint that a temporary injunction fails to comply with rule 683’s specificity requirements is considered one of form that is waived unless it is adequately preserved before the trial court. Shorts, 549 S.W.3d at 880; see Texas Tech Univ. Health Scis. Ctr. v. Rao, 105 S.W.3d 763, 768 (Tex. App.-Amarillo 2003, pet. dism’d) (noting split of authority among courts of appeals on whether complaint of failure to comply with rule 683 is waived if not raised before trial court, but ultimately agreeing with this Court’s previous holding in Emerson v. Fires Out, Inc., 735 S.W.2d 492, 494 (Tex. App.-Austin 1987, no writ), that such complaints must be preserved). As this Court has previously explained, “it serves no good purpose to permit appellants to lie in wait and present this error in form for the first time on appeal.” Emerson, 735 S.W.2d at 494. To adequately [*8] preserve an error for review on appeal, rule 33.1 of the Texas Rules of Appellate Procedure requires the record to show (1) that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint; and (2) that the trial court expressly or implicitly ruled on the request, objection, or motion. See Tex. R. App. P. 33.1(a).

DHJB contends that it has adequately preserved error on its rule 683 complaints by raising the issue in its “Response to Plaintiffs’ Post-Hearing Brief in Support of their Application for Temporary Injunction,” filed shortly after the trial court signed the temporary-injunction order. In particular, DHJB points to that portion of the pleading stating, “The open-ended request for injunctive relief proffered by the Grahams calls for interpretations, inferences, and conclusions as to the affected parties and their respective duties that exceed the limits of the constitution and cannot be granted.” At the conclusion of the responsive pleading, DHJB “requests that the Court deny Plaintiff’s application for a temporary injunction.” We conclude that this pleading fails to preserve error on DHJB’s rule 683 complaints for several [*9] reasons.

First, although the argument relied on by DHJB in its responsive pleading generally asserts that the injunctive relief requested by the Grahams is vague and overbroad, we cannot conclude that the argument was sufficiently specific to make the trial court aware that, in DHJB’s view, the resulting temporary injunction failed to specify how the Grahams would suffer irreparable harm as required by rule 683. Second, HN7 although “magic words” are not required, we cannot conclude that the argument was presented in the form of a “request, objection, or motion” to modify or correct the already-issued temporary-injunction order such that the trial court would have understood that a ruling on the complaint was necessary. Cf. Sand Point Ranch, Ltd. v. Smith, 363 S.W.3d 268, 274 n.11 (Tex. App.-Corpus Christi 2012, no pet.) (noting that error was preserved despite fact that appellant did not use “magic words ‘object’ or ‘objection’”); Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996) (where context was clear from record, error was preserved despite failure to state “magic words,” “I object”). Finally, even if we were to construe DHJB’s pleading as requesting a ruling on its complaint to the form of the trial court’s temporary-injunction order, nothing in the record suggests that the trial court, in fact, ruled on the complaint, expressly or [*10] implicitly. In short, based on the record before us, including the Grahams’ post-hearing response, we cannot conclude that DHJB brought its complaints about the form of the temporary injunction to the trial court’s attention and obtained a ruling. Thus, DHJB has failed to preserve error on these appellate issues. See Tex. R. App. P. 33.1(a)(1), (2)(A).” DHJB Dev., LLC v. Graham, No. 03-18-00343-CV, 2018 Tex. App. LEXIS 9295, at *7 (App.—Austin Nov. 15, 2018)

While this does not address how late in the process one may object to a failure to segregate attorneys fees and still preserve error, an objection is timely if made when evidence as to fees is offered:


Attorneys fees: “The Corey Appellants assert that the trial court erred by awarding the Rankin Appellees $46,957 in attorney’s fees because the appellees did not properly segregate between recoverable and unrecoverable fees. N. 2 N. 2 The Corey Appellants preserved error on this point by objecting when evidence of attorney’s fees was presented and considered by the trial court. Tex. R. App. P. 33.1(a)(1);” Corey v. Rankin, No. 14-17-00752-CV, 2018 Tex. App. LEXIS 9224, at *24 (App.—Houston [14th Dist.] Nov. 13, 2018)

You have preserved a complaint about the immateriality of a jury’s answer if you first raise it in a motion to disregard findings and for judgment notwithstanding the verdict:


Jury Verdict: “Broussard next contends that Orr has waived any complaint about the materiality of the jury’s negative answer to the question of whether Broussard breached his co-guarantor obligations to Orr. According to Broussard, Orr waived this complaint because Orr proposed, and did not object to, this charge question. A complaint that a jury’s answer is immaterial is not a jury-charge [*9] complaint which must be raised before the jury deliberates. See Musallam v. Ali, No. 17-0762, S.W.3d , 2018 Tex. LEXIS 1096, 2018 WL 5304678, at *3 (Tex. Oct. 26, 2018). A party instead can preserve a materiality complaint by raising the issue in a motion for judgment notwithstanding the verdict, a motion to disregard the finding, or a motion for new trial. See BP Am. Prod. Co. v. Red Deer Res., LLC, 526 S.W.3d 389, 402 (Tex. 2017). Because Orr argued in his combined motion to disregard findings and for judgment notwithstanding the verdict that certain jury findings were immaterial, those arguments have been preserved for review.” Orr v. Broussard, No. 14-17-00836-CV, 2018 Tex. App. LEXIS 9325, at *8-9 (App.—Houston [14th Dist.] Nov. 15, 2018)

You have to comply with other pertinent rules:


Bill of Exception: “GayeLynne timely filed a formal bill of exception containing largely the same evidence she presented in her offers of proof at trial and the same exhibits the trial court admitted at trial “for record purposes only.” See Tex. R. App. P. 33.2(e)(1). Tina objected to the bill. When, as here, the parties do not agree on a bill’s contents, the trial judge, after notice and hearing, must (1) find the bill is correct, sign it, and file it with the trial-court clerk; (2) suggest corrections to the complaining party, and if the complaining party agrees to the corrections, sign and file the bill with the trial-court clerk; or (3) if after making suggested corrections, the complaining party will not agree to the corrections, return the bill to the complaining party with the judge’s written refusal on it. Tex. R. App. P. 33.2(c). Here, the trial judge did not hear the bill, sign the bill, or suggest corrections. Thus, any errors complained of in GayeLynne’s bill of exception that were not presented in her offers of proof and exhibits admitted for record purposes only are not preserved for our review.” Estate of Luce, No. 02-17-00097-CV, 2018 Tex. App. LEXIS 9341, at *26 n.11 (App.—Fort Worth Nov. 15, 2018)

Default Judgment: “By his first and fourth issues, Guillen challenges the default judgment on its merits. However, Guillen failed to preserve error because he did not raise these issues in a motion for new trial to set aside the default judgment. HN9 Rule 324 provides that a point in a motion for new trial is a prerequisite to a complaint on appeal on which evidence must be heard. See Tex. R. Civ. P. 324(b)(1). As examples of such complaints, rule 324 identifies complaints involving the “failure to set aside a judgment by default.” Id.; McAllen Med. Ctr. v. Rivera, 89 S.W.3d 90, 94 (Tex. App.—Corpus Christi 2002, no pet.). Guillen makes factual assertions in his brief which “underscore the need for an evidentiary hearing.” See Hendricks v. Barker, 523 S.W.3d 152, 157 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Guillen contends that for several years, local authorities have been taxing him on two properties that do not belong to him, one of which is a local cemetery. Guillen contends, without any record citation, that each year the county’s “clerks would assure Appellants that just pay that one year and Appellants’ names would be removed from the tax rolls.” Guillen alleges that the promised removal never occurred, and, instead, his taxes increased. These sorts of factual conflicts must be resolved in the trial court before we, the appellate court, can address them. See [*13] id. Because Guillen never called for an evidentiary hearing or presented these issues in a motion for new trial, he has preserved nothing for appellate review.” Guillen v. Cameron Cty. & La Feria Indep. Sch. Dist., No. 13-16-00682-CV, 2018 Tex. App. LEXIS 9307, at *12-13 (App.—Corpus Christi Nov. 15, 2018)

Factual Sufficiency: “A complaint that the evidence is factually insufficient to support a jury answer, or that the answer is against the overwhelming weight of the evidence, must have been raised in a motion for new trial. Tex. R. Civ. P. 324(b)(2)-(3); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Neither Mother nor Father filed a motion for new trial. Because a motion for new trial is a prerequisite to a factual sufficiency challenge in a jury trial, Mother and Father have forfeited their complaints that the evidence is factually insufficient to support the best-interest findings against them. See Tex. R. Civ. P. 324(b)(2)-(3).” In the Interest of J.S., No. 02-18-00164-CV, 2018 Tex. App. LEXIS 9186, at *5 (App.—Fort Worth Nov. 8, 2018)

Jury Charge: “As for Blevins’s final issue concerning the trial court’s failure to give his requested jury instruction, that issue was not preserved for appeal. Blevins apparently asked for a “part two” to the instruction that was actually given. The instruction given was: “State Farm issued a policy to William Blevins providing coverage for UM/UIM damages and that such policy was in effect on October 2, 2011, the date of the collision at issue.” Although the record does not contain the exact language that Blevins sought to include as part two, from the parties’ discussions on the record of proposed stipulations at the trial’s beginning, we understand that he wanted a second jury instruction to this effect: that “the parties further stipulate that William Blevins’ UM/UIM policy provided coverage up to the limit of his policy for damages, if any, that were caused in this collision [*41] and for which there was no coverage, or insufficient coverage, on the liability policy or policies of the at-fault driver or drivers.” That language was never submitted in written form either as a suggested stipulation or as a requested jury instruction. Blevins failed to preserve error, if any, in the omission of an instruction along the lines of the above language. His proposed jury questions and instructions that appear in the clerk’s record did not contain any instruction at all about UIM coverage, nor does the record contain the proposed written charge that the parties discussed at the close of all evidence and that ostensibly contained a secondary instruction similar to the above proposed stipulation.. . . . Rule 278 provides that “[f]ailure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.” Tex. R. Civ. P. 278;” Blevins v. State Farm Mut. Auto. Ins. Co., No. 02-17-00276-CV, 2018 Tex. App. LEXIS 9344, at *40-42 (App.—Fort Worth Nov. 15, 2018)

Be careful to not abandon your complaint–e.g., after the granting of a partial summary judgment against you, do not omit from your subsequent amended petition the claim on which summary judgment was granted:


Summary Judgment: “Filing an amended petition [after the granting of an interlocutory partial summary judgment] that does not include a cause of action effectively nonsuits or voluntarily dismisses the omitted claim as of the time the pleading is filed, unless circumstances indicate otherwise, such as when the amended petition contains statements demonstrating an intent to preserve the omitted claim. FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632-33 (Tex. 2008); Spellmann v. Love, 534 S.W.3d 685, 690 (Tex. App.—Corpus Christi 2017, pet. denied). The same principle holds true for an amended petition that omits a previously named defendant. Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972); Spellmann, 534 S.W.3d at 690. For appellate purposes, abandoning a cause of action or a defendant in an amended pleading waives any error by the trial court regarding the abandoned cause of action or defendant.” Lopez v. Crest Gateway, LP, No. 02-17-00429-CV, 2018 Tex. App. LEXIS 9182, at *4 (App.—Fort Worth Nov. 8, 2018)

You have to make the trial court aware of your complaint–set a hearing on your motion:


Motions: “In conclusion, the record shows that Ayala-Gutierrez never asked the trial court to set hearings on his motions [for a bench warrant]. Thus, he failed to preserve [*9] his complaints that the trial court never ruled on motions for our review. See Tex. R. App. P. 33.” Ayala-Gutierrez v. Strickland, No. 09-17-00119-CV, 2018 Tex. App. LEXIS 9333, at *8-9 (App.—Beaumont Nov. 15, 2018)

Your complaint must be timely:


Jury Trial: “A party must object to proceeding without a jury when the case is called to trial or the argument is waived. In re W.G.O. III, No. 02-12-00059-CV, 2013 Tex. App. LEXIS 189, 2013 WL 105661, at *2 (Tex. App.-Fort Worth Jan. 10, 2013, pet. denied) (mem. op.). The record shows the parties failed to timely object to the trial court’s denial of Father’s perfected right to a jury trial. The parties were initially called at 9:45 a.m. Mother’s and Father’s counsel were both present on their behalves and counsel for all parties announced “ready.” The trial court instructed them to return at 1:00 p.m. When they returned, the trial court acknowledged the case had been set for jury trial and that Mother and Father were not present. After waiting approximately fifteen minutes, the court announced it would proceed to trial before the court. Again, counsel for all parties announced they were ready and proceeded to trial without objection. It was not until after [*13] the State passed its first witness that Father’s counsel inquired about the jury and indicated that he did not know how Father wished to proceed. Shortly thereafter, Mother’s counsel stated, “Judge, if I may, I just also want to voice my objection to preserve error for my client with respect to the jury trial demand.” This attempt to preserve error was untimely because the bench trial had already commenced. Therefore, we conclude Mother and Father waived any right to complain on appeal about the trial judge’s alleged error.” In the Interest of A.Ja.T., No. 05-18-00705-CV, 2018 Tex. App. LEXIS 9358, at *12-13 (App.—Dallas Nov. 15, 2018)

As usual, there were many cases in which courts held that parties failed to preserve their complaint by not raising it at all in the trial court.

I hope this helps.  Y’all have a great Thanksgiving.


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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