Error Preservation in Texas Civil Cases, November 21, 2020

November 21, 2020

Dear All:

I hope everyone remains safe and well.  This week’s error preservation rulings provide a whole host of reminders and lessons.

Table of Contents

Here are a couple of cases which remind us that we have to object to the form of the affidavit (i.e., hearsay, etc.) in the trial court.  One of the cases also succinctly points out that objections as to an affidavit’s substance (i.e., the affidavit’s conclusory nature) may first be raised on appeal–and defines and gives examples of what makes a statement “conclusory”

Another case reminds us that most–but not all–courts of appeals hold that a complaint about a temporary injunction order’s failure to comply with Rule 683 may first be raised on appeal

One case dealt with whether a complaint about an expert’s report met the specificity requirement of Rule 33.1, among other things

Your complaint on appeal must match the one you made at trial

Evidence
Evidence

You can preserve a legal sufficiency complaint through an appropriate objection to the jury charge

Standing, as a component of subject matter jurisdiction, is a complaint which can first be raised on appeal (though not all courts agree in all instances)

The Blurbs

Here are a couple of cases which remind us that we have to object to the form of the affidavit in the trial court. One of the cases also succinctly points out that objections as to an affidavit’s substance (i.e., the affidavit’s conclusory nature) may first be raised on appeal–and defines and gives examples of what makes a statement “conclusory”:

Affidavit: But, to preserve error for formal defects, one must both object and obtain a ruling, or except to the trial court’s failure to rule. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 164 (Tex. 2018) (per curiam). The trial court did not rule on Thomas’s objections, and Thomas did not except to the failure to rule. Her objections to defects of form are therefore waived. See, e.g., Wash. DC Party Shuttle, LLC v. iGuide Tours, 406 S.W.3d 723, (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (en banc) (lack of personal knowledge is a defect of form); Okpere v. Nat’l Oilwell Varco, L.P., 524 S.W.3d 818, 824 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (hearsay is a defect of form); Ortega v. Cach, LLC, 396 S.W.3d 622, 628 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (insufficient foundation is a defect of form); Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012) (defects in the form of a document’s authentication are formal defects). Because the trial court did not rule on the formal objections, they have not been preserved for review, and we do not address them.

On the other hand, an objection that an affidavit is conclusory raises a defect of substance, which can be raised for the first time on appeal. Pipkin v. Kroger Tex. L.P., 383 S.W.3d 655, 670 (Tex. App.-Houston [14th Dist.] 2012, pet. denied). But, a conclusory statement “expresses a factual inference without providing underlying facts to support that conclusion.” Leonard v. Knight, 551 S.W.3d 905, 911 (Tex. App.—Houston [14th Dist.] 2018, no pet.). For the most part, the paragraphs of Wells’s affidavit to which Thomas objected do not express factual inferences; they express facts. Thomas asserts that Wells’s statements are conclusory because, for example, Wells and Thomas have never spoken and Wells does not name any person as having spoken to Thomas. But, Thomas’s assertion is merely a restatement of her objections that Wells lacked personal knowledge of the facts to which she attested and failed to lay a sufficient foundation.

The sole exception is Wells’s statement, “Moreover, Plaintiff continued to purchase coins subject to the [Terms & Conditions] on multiple occasions.” This is Wells’s conclusion (which may or may not be correct), but it is not “conclusory,” because Wells has identified the facts on which that conclusion is based.” Nationwide Coin & Bullion Res., Inc. v. Thomas, Nos. 14-19-00632-CV, 14-19-00633-CV, 2020 Tex. App. LEXIS 8909, at *8 (Tex. App.—Houston [14th Dist.] Nov. 17, 2020)

Affidavit (Hearsay): “The record reflects that Ahmad objected and moved to strike the State’s summary-judgment evidence on the grounds of inadmissible hearsay. The record also reflects that he raised the same objections at the show cause hearing. But nothing in the record shows he obtained an adverse ruling or a refusal to rule followed by an objection to the refusal to rule to the written or in-court objections. Notably, Ahmad’s brief omits any discussion of an adverse ruling or an objection to the court’s refusal to rule from the trial court. We need not scour the records “for support of an appellant’s assertion of error.” Thierry v. State, 288 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Because Ahmad objected but failed to obtain a ruling on his objections—i.e., his hearsay objections to statements in Officer Edwards’s affidavit—we conclude that Ahmad waived the complaint for appeal by failing to preserve the error. As a result, we overrule Ahmad’s second issue.” Ahmad v. State, No. 01-19-00569-CV, 2020 Tex. App. LEXIS 8962, at *9 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020)

Here is another case reminding us that most–but not all–courts of appeals hold that a complaint about a temporary injunction order’s failure to comply with Rule 683 may first be raised on appeal:

Temporary Injunction: “B. Waiver. The Stabiles argue that this interlocutory appeal is barred because BSR did not object to the temporary injunction in the trial court. As the Stabiles note, an issue is generally waived on appeal if it is not first raised in the trial court. See Tex. R. App. P. 33.1; see also In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). However, long-standing precedent of this Court, the majority of the Texas courts of appeals, and the Texas supreme court establish that the requirements of Rules 683 and 684 are mandatory and that a party need not preserve error in the trial court when a temporary injunction order does not comply with them. See Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986);. . . . Only the Amarillo and Austin courts of appeals have required preservation of error when a temporary injunction order fails to comply with Rules 683 and/or 684. See Tex. Tech. Univ. Health Scis. Ctr. v. Rao, 105 S.W.3d 763, 768 (Tex. App.—Amarillo 2003, pet. dism’d); Emerson v. Fires Out, Inc., 735 S.W.2d 492, 493 (Tex. App.—Austin 1987, no writ). See also Hoist Liftruck Mfg., Inc. v. Carruth-Doggett, Inc., 485 S.W.3d 120, 124-25 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (Frost, C.J., concurring) (for discussion of the majority and minority views).” BSR Surf Resort, LLC v. Stabile, No. 10-20-00006-CV, 2020 Tex. App. LEXIS 9015, at *4 (Tex. App.—Waco Nov. 18, 2020)

One case dealt with whether a complaint about an expert’s report met the specificity requirement of Rule 33.1, among other things:

Expert: “Here, Green asserts that he gave “fair notice” of his objection to the reliability of Johnstone’s reports by sending a letter to the Board after its ruling on Green’s disability application. The letter stated that the “only evidence” offered by the Fund to controvert the records and affidavits of Green’s treating physician was “a hired ‘expert’ from an out of state firm who ignored over 7 plus separate healthcare providers[.]” The letter went on to assert that “the [Fund] physician” claimed Green’s illness “was being made up without one medical test to support his opinion except his personal interview[.]” Green’s letter to the Board was insufficient to preserve error on appeal in that it was not timely or specific and Green failed to obtain a ruling from the trial court. Green therefore waived error with regard to his challenge to the reliability of Johnstone’s evidence. See Tex. R. App. P. 33.1.” Green v. Hous. Firefighters’ Relief & Ret. Fund, No. 14-19-00734-CV, 2020 Tex. App. LEXIS 9029, at *16 (Tex. App.—Houston [14th Dist.] Nov. 17, 2020)

Your complaint on appeal must match the one you made at trial:

Evidence: “To the extent that Born asserts that the trial court erred in admitting hearsay regarding the testimony referenced in issue five, he has failed to preserve such an argument. When a complaint on appeal does not match the objection made in the trial court, no error is preserved. See Benson v. Chalk, 536 S.W.3d 886, 895-96 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). At trial, Born argued that Thorne’s testimony regarding Born’s purpose in driving around aimlessly was speculative. Born failed to object to this testimony on the ground of inadmissible hearsay. Accordingly, he has not preserved an argument that the testimony was inadmissible hearsay. See Tex. R. App. P. 33.1(a).” In re Commitment of Born, No. 02-19-00272-CV, 2020 Tex. App. LEXIS 8974, at *32 n.10 (Tex. App.—Fort Worth Nov. 19, 2020)

Evidence: “To the extent that Born is arguing on appeal that the objected-to testimony is inadmissible hearsay, he failed to preserve error on this ground. Born’s only objection at trial was relevance. A relevancy objection does not preserve a hearsay complaint on appeal. See Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728, 736 (Tex. App.—Texarkana 1996, no writ). Accordingly, Born has not preserved an argument that the testimony was inadmissible hearsay. See Tex. R. App. P. 33.1(a).” In re Commitment of Born, No. 02-19-00272-CV, 2020 Tex. App. LEXIS 8974, at *37 n.11 (Tex. App.—Fort Worth Nov. 19, 2020)

You can preserve a legal sufficiency complaint through an appropriate objection to the jury charge:

Jury Charge: “Because Berkel properly preserved error by objecting to the trial court’s intentional-injury charge, we evaluate the sufficiency of the evidence against the charge the trial court should have given.” Berkel & Co. Contrs. v. Lee, No. 18-0309, 2020 Tex. LEXIS 1080, at *9 (Nov. 20, 2020)

Standing, as a component of subject matter jurisdiction, is a complaint which can first be raised on appeal (though not all courts agree in all instances):

Standing: “ McKnight argues that appellants “waived their rights to argue McKnight lacks standing by asserting counterclaims for declaratory relief against McKnight.” McKnight relies on State and County Mut. Fire Ins. Co. v. Walker, a case in which our sister court held that an insurance company “waived any argument that [appellee] did not have standing to challenge its claims” after the insurance company joined appellee in a declaratory judgment action. 228 S.W.3d 404, 412 (Tex. App.—Fort Worth 2007, no pet.). n. 19 We reject McKnight’s argument. n. 20

Because it is a component of subject matter jurisdiction, standing cannot be waived and may be raised for the first time on appeal.

n. 19–In Walker, the insurance company joined appellee “as a defendant in the suit, naming her as a person potentially having an interest or claiming an interest in the insurance policy.” Walker, 228 S.W.3d at 406. There is no similar discussion that McKnight was a beneficiary of the Note in the instant case.
n. 20–McKnight also refers us to our sister court’s holding in Spruiell v. Lincoln Ins. Co. No. 07-97-0336-CV, 1998 Tex. App. LEXIS 2210, 1998 WL 174722, at *1 (Tex. App.—Amarillo Apr. 13, 1998, pet. denied) (not designated for publication). However, as that case is not binding on this Court and has no precedential value, we decline to address Spruiell herein. Tex. R. App. P. 47.7 (“Opinions and memorandum opinions designated ‘do not publish’ under these rules by the courts of appeals prior to January 1, 2003 have no precedential value.”).”

YYP Grp., Ltd. v. McKnight, No. 05-19-01145-CV, 2020 Tex. App. LEXIS 8855, at *13 (Tex. App.—Dallas Nov. 16, 2020)

All for now.  Y’all have a great weekend.

Yours, Steve Hayes

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

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