November 26, 2022
I hope everyone had a good Thanksgiving.
Table of Contents
I’ve included the following discussion because one does not often see a court of appeals discuss whether it should raise error preservation sua sponte
Legal and Factual Sufficiency
Here is a case in which the non-movant preserved a complaint that the trial court cannot consider exhibits attached to a defendant’s answer in ruling on that defendant’s 91a Motion to Dismiss
Here is a parental rights termination case dealing with a father who sought termination based on mistaken paternity
The following discussion reminds us that objections as to the form of summary judgment evidence must be preserved in the trial court, while objections to the substance of such evidence can first be raised on appeal
Complete Lack of Authentication
You have to bring your complaint to the trial court’s attention– getting a ruling is a way to make sure you did so
The complaint you raise on appeal must be the same complaint you raise at trial
Your complaint must be timely
You have to comply with other pertinent rules
Default Judgment (New Trial)
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Notification of Default
The Rule (Experts)
Temporary Restraining Order
I’ve included the following discussion because one does not often see a court of appeals discuss whether it should raise error preservation sua sponte:
Legal and Factual Sufficiency: “No party, other than [*7] appellants, has filed a brief in this case. Upon our own review of the record before us, we question whether the issue of the sufficiency of the evidence to support termination of Mother’s parental rights and to overcome the constitutional parental presumption or to establish significant impairment was properly preserved below.
It is unclear from existing case law whether an appellate court must, should, or may raise the issue of preservation on its own. See Osman v. City of Fort Worth, No. 02-21-00117-CV, 2022 Tex. App. LEXIS 400, 2022 WL 187984, at *5 (Tex. App.—Fort Worth Jan. 20, 2022, pet. denied) (mem. op.) (“[p]reservation of error is a systemic requirement on appeal,” and “a court of appeals should review preservation of error on its own motion.”) (quoting Knoderer v. State Farm Lloyds, 515 S.W.3d 21, 44 (Tex. App.—Texarkana 2017, pet. denied)); see also Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012) (“When a party fails to preserve error in the trial court . . . an appellate court may not consider the unpreserved or waived issue.”); Alikhan v. Alikhan, No. 03-19-00515-CV, 2021 Tex. App. LEXIS 5832, 2021 WL 3085844, at *3 (Tex. App.—Austin July 22, 2021, pet. filed) (mem. op.) (“To protect th[e] important prudential considerations [behind error preservation]—including those of judicial economy—we may review the record sua sponte for preservation of error.”); cf. Mitchell v. Wilmington Sav. Funds Soc’y FSB, No. 02-18-00089-CV, 2019 Tex. App. LEXIS 144, 2019 WL 150262, at *4 (Tex. App.—Fort Worth Jan. 10, 2019, no pet.) (mem. op.) (“[B]efore we consider whether an abuse of discretion has occurred, the error must be preserved for our review.”). Regardless of that question, we conclude that it is proper for us to raise preservation sua sponte [*8] .
Factual sufficiency issues must be preserved by new trial motion. Tex. R. Civ. P. 324(b)(2); In re A.R.M., 593 S.W.3d 358, 362, n.1 (Tex. App.—Dallas 2018, pet. denied) (mem. op.) (applying Rule 324 in parental-termination case). The clerk’s record does not contain a new trial motion, nor does the computer-generated docket sheet indicate that any such motion was filed. Neither Mother nor Father preserved a factual sufficiency argument. See, e.g., In re A.P., No. 05-19-01536-CV, 2020 Tex. App. LEXIS 4321, 2020 WL 3071708, at *5 (Tex. App.—Dallas June 10, 2020, no pet.) (mem. op.), superseded by statute on other grounds as stated in In re D.T., 625 S.W.3d 62, 70 (Tex. 2021).
A legal sufficiency argument can be preserved by: (i) a motion for instructed verdict, (ii) a motion for judgment notwithstanding the verdict, (iii) an objection to a jury question’s submission, (iv) a motion to disregard a jury’s answer to a vital fact issue, or (v) a new trial motion. See In re A.H.J., No. 05-15-00501-CV, 2015 Tex. App. LEXIS 10440, 2015 WL 5866256, at *10 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.). Here, nothing in the record on appeal indicates that either Mother or Father made any of these motions or objections. Accordingly, neither Mother nor Father preserved a legal sufficiency argument. See id. (applying ordinary preservation rules to legal sufficiency challenge in parental-termination case); see also In re M.M., No. 05-19-00329-CV, 2019 Tex. App. LEXIS 8270, 2019 WL 4302255, at *6 (Tex. App.—Dallas Sept. 11, 2019, pet. denied) (mem. op.).
In view of the apparent lack of preservation, we are obliged to overrule Mother’s and Father’s respective issues and affirm the trial court’s order.” In the Int. of K.D.S.P., No. 05-22-00456-CV, 2022 Tex. App. LEXIS 8561, at *7-8 (Tex. App.—Dallas Nov. 21, 2022, no pet. h.)
Here is a case in which the non-movant preserved a complaint that the trial court cannot consider exhibits attached to a defendant’s answer in ruling on that defendant’s 91a Motion to Dismiss:
91a: “Boeing also argues SWAPA did not preserve its assertion that the trial court could not consider the exhibits to Boeing’s answer because SWAPA did not object to Boeing’s argument that the trial court could consider the exhibits. See Tex. R. App. P. 33.1(a)(1) (party must object in trial court to preserve error and obtain ruling on objection). SWAPA’s response to the motion to dismiss quotes Rule 91a.6 and states: “In ruling on a Rule 91a motion, a court ‘may not consider evidence . . . and must decide the motion based solely on the pleading of the cause of action.'” (Citing Tex. R. Civ. P. 91a.6 and Bethel, 595 S.W.3d at 654). This statement of the standard of review should have been sufficient to call to the trial court’s attention that in determining the applicability of Boeing’s defense, the court could not consider evidence nor anything outside SWAPA’s petition. SWAPA also stated, “Boeing’s Motion is based solely on its affirmative defense unsupported by the pleadings.” This assertion notified the trial court that Boeing’s motion was not based on the factual allegations in SWAPA’s petition. We conclude SWAPA preserved its argument for appeal.” Sw. Airlines Pilots Ass’n v. Boeing Co., No. 05-21-00598-CV, 2022 Tex. App. LEXIS 8186, at *16-17 (Tex. App.—Dallas Nov. 7, 2022, no pet. h.)
Here is a parental rights termination case dealing with a father who sought termination based on mistaken paternity:
Affidavit: “The Office of the Attorney General argues that Palmer did not preserve error or meet his burden of proving that the trial court abused its discretion because he did not seek to reinstate his case under Rule 165a. But, as we stated above, a motion to reinstate is not a prerequisite to an appeal on the justification of a dismissal for want of prosecution….Because we have determined that this issue was properly raised in Palmer’s brief, that his due-process rights were violated, and that a motion to reinstate is not a prerequisite to appeal on this issue, Palmer’s second issue is sustained.” Palmer v. Office of the AG, No. 08-21-00072-CV, 2022 Tex. App. LEXIS 8374, at *11-12 (Tex. App.—El Paso Nov. 15, 2022, no pet. h.)
The following discussion reminds us that objections as to the form of summary judgment evidence must be preserved in the trial court, while objections to the substance of such evidence can first be raised on appeal:
Complete Lack of Authentication: “Liu filed a reply and objected to and moved to strike all of Chang’s evidence on the grounds that it constituted hearsay and constituted improper summary judgment evidence. Also, with the exception of the “property ownership transfer agreement,” Liu objected to all of these documents on the ground that they were not authenticated. The record contains no transcript of the summary judgment hearing and no ruling regarding Liu’s objections.
Objections that a document contains hearsay are defects in form….Defects in form cannot be raised on appeal unless the party obtains a written ruling on these objections…. An objection to the attempted authentication of a document is usually considered a defect in form; however, we have held that “[a] complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal.” Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.). A party submitting documents as summary judgment proof bears the burden of authenticating them….
Here, Bennett—as Chang’s temporary guardian at the time—had the burden of authenticating the documents he submitted as summary judgment proof on her behalf but made no attempt to do so. While we will not consider Liu’s hearsay objections because she failed to obtain a written ruling, Bennett’s complete lack of any attempt to authenticate the documents attached to the summary judgment response is a defect in substance we may consider. See id. Thus, in reviewing the trial court’s summary judgment ruling, we do not consider the documents attached to the response Bennett filed on behalf of Chang because he made no attempt to authenticate them.” Chang v. Liu, No. 05-20-00977-CV, 2022 Tex. App. LEXIS 8638, at *14-16 (Tex. App.—Dallas Nov. 23, 2022, no pet. h.)
You have to bring your complaint to the trial court’s attention– getting a ruling is a way to make sure you did so:
Continuance: “To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely motion with sufficient specificity, the trial court expressly or implicitly ruled on the motion or refused to rule on the motion, and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). SOS asserts that the trial court implicitly denied its motion for continuance when it granted appellees’ motion for summary judgment….We disagree.
Merely filing a motion is not sufficient to preserve an error; the movant must bring the motion to the trial court’s attention, thereby giving the court an opportunity to rule on the motion….Here, we cannot conclude that the trial court implicitly denied the motion for continuance because there is no indication in the record that SOS brought the motion to the trial court’s attention….Likewise, the record does not show that the trial court refused to rule on the motion or that SOS objected to that refusal. As a result, we conclude that this issue has not been preserved for appellate review. See Tex. R. App. P. 33.1(a). We overrule SOS’s second issue.” Silva, Otting & Silva, LLC v. Donna Econ. Dev. Corp. 4A, No. 13-20-00499-CV, 2022 Tex. App. LEXIS 8461, at *8 (Tex. App.—Corpus Christi Nov. 17, 2022, no pet. h.)
Evidence: “In their motion, the Douets objected to Romero’s summary judgment evidence; however, the trial court did not rule on their objections. Thus, we consider all of Romero’s summary judgment evidence. See Vice v. Kasprzak, 318 S.W.3d 1, 19 n.10 (Tex. App.—Houston [1st Dist.] 2009, pet denied) (noting that, in the absence of a trial court’s ruling or order, objections to summary-judgment evidence are waived and allegedly inadmissible summary-judgment evidence remains part of the summary-judgment record).” Douet v. Romero, No. 14-21-00365-CV, 2022 Tex. App. LEXIS 8365, at *5 n.5 (Tex. App.—Houston [14th Dist.] Nov. 15, 2022, no pet. h.)
The complaint you raise on appeal must be the same complaint you raise at trial:
Evidence: “When the Department offered the exhibits, Mother’s objections were that the exhibits were irrelevant, hearsay, improper impeachment, and “over ten years old.” Mother did not object on Rule 404 [character evidence] grounds, the objections she did make did not raise Rule 404 or its substance, and a Rule 404 ground was not apparent from the context. Thus, she failed to preserve her Rule 404 argument for appeal. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1)(A)-(B);” H.G. v. Tex. Dep’t of Family & Protective Servs., No. 03-22-00373-CV, 2022 Tex. App. LEXIS 8621, at *6-9 (Tex. App.—Austin Nov. 23, 2022, no pet. h.).
Evidence: “In her next evidence-admission issue, Mother maintains that the trial court should have excluded Boyfriend’s adult daughter’s testimony. On appeal, Mother argues that the testimony was hearsay within hearsay, speculative, and “prejudicial to the jury” and daughter was not competent to testify to events that occurred when she was 11 years old. Mother seeks reversal for the trial court’s refusal to exclude all the daughter’s testimony, but Mother’s only objection in the trial court that applied to all the daughter’s testimony, rather than to just one question-and-answer or another, was to relevance. Mother’s relevance objection did not preserve for appeal objections to the entirety of the daughter’s testimony that it is hearsay within hearsay, speculative, impermissibly prejudicial, or incompetent. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1)(A)-(B);” H.G. v. Tex. Dep’t of Family & Protective Servs., No. 03-22-00373-CV, 2022 Tex. App. LEXIS 8621, at *6-9 (Tex. App.—Austin Nov. 23, 2022, no pet. h.)
Your complaint must be timely:
Arbitration: “Because appellants did not file a response to the motion to compel arbitration, they did not timely present their arguments for why the court should not have granted appellee’s motion to compel arbitration. We conclude appellants did not timely raise these arguments, and we cannot address them. Tex. R. App. P. 33.1(a). We overrule appellant’s second issue.” Gordon v. Trucking Res., Inc., No. 05-21-00746-CV, 2022 Tex. App. LEXIS 8379, at *14 (Tex. App.—Dallas Nov. 15, 2022, no pet. h.)
Notice: “Under Rule 245, a trial court must give the parties at least forty-five days’ notice of the first trial setting in a contested case. Tex. R. Civ. P. 245. But when a case has been previously set for trial, the trial court may reset it to a later date on reasonable notice to the parties. Id. “To preserve a complaint about insufficient notice under Rule 245, ‘[a] party must timely and specifically object to insufficiency of notice under [R]ule 245, or the error is waived.'”….”The objection must be made before trial; a [R]ule 245 objection made in a motion for new trial is untimely and preserves nothing for review.”….Here, Kinara did not complain that he received insufficient notice of the November 2021 trial date until he filed his motion to set aside the default judgment and for a new trial. Thus, Kinara has waived any complaint regarding insufficient notice of the November 16, 2021 trial date.” Kinara v. Ongera, No. 02-22-00068-CV, 2022 Tex. App. LEXIS 8440, at *15-17 (Tex. App.—Fort Worth Nov. 17, 2022, no pet. h.)
Res Judicata: “As this timeline shows, the Wagners waited over three years after the signing of the operative judgment to assert their res judicata defense. During this period, the parties and the judicial system expended considerable resources as the case was prepared for and proceeded through trial. Permitting res judicata to be asserted at this late stage would undercut the goals the doctrine is intended to advance, i.e., the efficient resolution of lawsuits. See Restatement (Second) of Judgment § 26 cmt. a (1982);….Therefore, the Wagners waived the defense of res judicata. See Restatement (Second) of Judgments § 26(a)(1) (1982). We overrule the Wagners’ second issue.” Wagner v. Exxon Mobil Corp., No. 14-21-00122-CV, 2022 Tex. App. LEXIS 8233, at *36 (Tex. App.—Houston [14th Dist.] Nov. 8, 2022, no pet. h.)
You have to comply with other pertinent rules:
Default Judgment (New Trial): “ Rule 324 lists specifically the failure to set aside a default judgment as one of the types of appellate complaints that must be preserved through a motion for new trial. Tex.R.Civ.P. 324(b)(1).
By failing to file a motion for new trial, Robinson has failed to preserve error on the issue that the trial court improperly granted default judgment. The arguments she raises in her brief demonstrate that an evidentiary hearing was needed in the trial court. On appeal, Robinson asserts she missed the trial because she was sick with corona virus. In her notice of appeal she alleged she had had a medical emergency with a wound on her finger. Both in her brief and in her notice of appeal she alleges she did not sign a contract with Smart Dry and the job was never completed.
Factual issues such as those raised by Robinson “must be resolved in the trial court before we, the appellate court, can address them.” ….Robinson never requested an evidentiary hearing or presented these issues in a motion for new trial; thus, she has not preserved any error for us to review. ” Robinson v. Dry, No. 08-22-00012-CV, 2022 Tex. App. LEXIS 8333, at *4 (Tex. App.—El Paso Nov. 10, 2022, no pet. h.)
All for now. Y’all enjoy the weekend.
Yours, Steve Hayes