November 22, 2021
Dear Friends:
Table of Contents
It is possible for a trial court to implicitly rule on your complaint, as here–but it still remains sound advice to avoid putting yourself in the position of having to establish an implied ruling
Discovery
Your complaint on appeal must be the same complaint you raised in the trial court
Legal Sufficiency
While I won’t profile them here, opinions this week reaffirmed that you must make complaint about the following in the trial court
Affirmative Defense
Attorney Fees
Evidence
HIPPA
Partial Performance
Pleading
Preemption
Promissory Estoppel
Property Division/Fees
Trustee’s Sale
Blurbs
It is possible for a trial court to implicitly rule on your complaint, as here–but it still remains sound advice to avoid putting yourself in the position of having to establish an implied ruling:
Discovery: “Appellees first argue that SPS did not preserve the issue for appeal because it did not obtain a ruling on the issue. See Drew v. Belver, No. 04-20-00483-CV, 2021 Tex. App. LEXIS 6584, 2021 WL 3518541, at *3 (Tex. App.—San Antonio Aug. 11, 2021, no pet. h.) (mem. op.) (party does not preserve for appeal issue of denial of limited discovery when it neither obtains ruling on motion nor objects to failure to rule). The trial court never expressly ruled on the request for limited discovery, but an implicit denial of a motion preserves error for appellate review. See Tex. R. App. P. 33.1(a)(2)(A). We conclude that, by dismissing the claims without allowing discovery, the trial court implicitly denied the request for discovery—thereby preserving the issue for appeal.” SPS Austin, Inc. v. Wilbourn, No. 03-20-00054-CV, 2021 Tex. App. LEXIS 9408, at *36 (Tex. App.—Austin Nov. 19, 2021)
Your complaint on appeal must be the same complaint you raised in the trial court:
Legal Sufficiency: “It is undisputed that the first time Murphy’s Deli ostensibly raised the issue of legal sufficiency was in its motion for new trial. In its new-trial motion, it argued:
The jury finding of liability against the Defendant for the incident made the basis of suit is against the great weight and preponderance of the evidence. There is no credible evidence the food product in question was tainted while in the possession of the Defendant.
In support of this argument, Murphy’s Deli discussed the testimony of Jordan and her treating doctor, asserting [*36] that her doctor’s testimony established the time period in which food poisoning would appear and that Jordan’s testimony established that her illness developed outside of this period. Murphy’s Deli then reiterated that this evidence showed the “verdict finding liability is against the great weight and preponderance of the evidence in this case.”
On its face, the new-trial motion solely challenges the factual sufficiency of the evidence, not its legal sufficiency. The contention that a verdict is against the great weight and preponderance of the evidence disputes the factual sufficiency of the evidence. …
Notably, the new-trial motion does not include the terms “legal sufficiency” or “no evidence.” The closest the motion comes to using either of these terms is “no credible evidence.” But an assertion that the record lacks evidence that is credible, or believable, is not the same thing as an assertion that there is no evidence whatsoever. Instead, an attack on the credibility or believability of the evidence is an attack on its persuasiveness or weight. See NEW OXFORD AMERICAN DICTIONARY 406 (3d ed. 2010) (defining “credible” as “able to be believed; convincing”). For this reason, we [*37] construe challenges to the credibility or believability of the evidence as factual-sufficiency challenges….
In sum, Murphy’s Deli did not raise the issue of legal sufficiency in its motion for new trial. Thus, Murphy’s Deli did not preserve this issue for our review.” BMLA, Inc. v. Jordan, No. 01-19-00568-CV, 2021 Tex. App. LEXIS 9318, at *35-37 (Tex. App.—Houston [1st Dist.] Nov. 18, 2021)
All for now. Y’all stay safe and well, and have a fantastic Thanksgiving.
Yours,
Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com