Error Preservation in Texas Civil Cases, November 30, 2019

Dear All:

I hope everyone had a great Thanksgiving, and looks forward to a wonderful holiday season to come.

Table of Contents

The Blurbs

A party does not need to raise some complaints in the trial court–perhaps to an untranslated document completely in a foreign language (or, at least, one does not have to get a ruling on an objection to such a document):


Evidence: “One exception [to the preservation requirement that one must obtain a ruling on one’s complaint in the trial court], however, is the multi-page document that is entirely in Spanish. The Rules of Evidence provide a procedure for admitting documents in another language. See Tex.R.Evid. 1009 (setting out procedure for admitting translation of document in a foreign language). This Court does not act as a translator for litigants. See Texas Tech Univ. Health Science Ctr. v. Lozano, 570 S.W.3d 740, 747 (Tex.App.–El Paso 2018, pet. denied); Lacoma v. Canto, 236 S.W. 1013, 1014 (Tex.App.–El Paso 1922, no writ). This is a longstanding rule that should be of no surprise to litigants. See Sartor v. Bolinger, 59 Tex. 411, 413 (1883).” El Pescador Church, Inc. v. Ferrero, No. 08-18-00029-CV, 2019 Tex. App. LEXIS 10179, at *35 n.10 (Tex. App.—El Paso Nov. 25, 2019)

Here is one where the complaining party did preserve its complaints about discovery in a motion for reconsideration in the trial court:


Discovery: “In response to the mandamus petition, the Robbins Parties contend that Defy did not present any of the arguments it raises in the petition to the trial court and that [*9] Defy presented these arguments to the trial court for the first time in its motion for reconsideration. The Robbins Parties’ assertion is without merit. In that motion, Defy quoted its objections to request for production no. 17 and argued that (1) it does not have “the power” to produce the requested documents; (2) the lease contract at issue is with Defy; (3) Empower is not a party to the lawsuit; and (4) the documents are not relevant. Defy asked the trial court to reconsider its ruling and sustain its objections, which were based in part on relevance. In a written order, the trial court expressly overruled Defy’s objection to request for production no. 17. See Tex. R. App. P. 33.1(a) (providing that to preserve a complaint for appellate review, a party must present to the trial court a timely objection and obtain a ruling from the trial court). Defy reasserts in this mandamus proceeding that the tax returns are not relevant.” In re Defy Int’l, LLC, No. 14-19-00553-CV, 2019 Tex. App. LEXIS 10246, at *8-9 (Tex. App.—Houston [14th Dist.] Nov. 26, 2019)

You have to bring your complaint to the trial court’s attention–just filing a motion which is never set for hearing does not get the job done:


Evidence: “To preserve a complaint for appellate review, appellant, as the complaining party, must first make a timely request, objection, or motion that states the grounds for the ruling sought. See Tex. R. App. P. 33.1(a). Appellant must then obtain an adverse ruling from the trial court on his request, objection, or motion, or he must object to the trial court’s refusal to rule. Id. These rules express the general policy that an appellate court should not reverse a trial court on a matter never brought to the trial court’s attention. See Carranza v. State, 960 S.W.2d 76, 78-79 (Tex. Crim. App. 1998). Here, nothing in the record indicates that appellant made the trial court aware of his “Motion for Evidentiary Hearing,” that appellant obtained an adverse ruling on his motion, or that appellant objected [*16] to the trial court’s failure to rule on his motion. See Tex. R. App. P. 33.1(a); Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); see also Thompson v. State, Nos. 14-16-00413-CR, 14-16-00414-CR, 2018 Tex. App. LEXIS 7088, 2018 WL 4139038, at *2 (Tex. App.—Houston [14th Dist.] Aug. 30, 2018, pet. ref’d) (mem. op., not designated for publication) (“Because appellant never obtained an adverse ruling on his pro se motions, we conclude that he has not preserved his complaint for appellate review.”); Norris v. State, No. 10-16-00222-CR, 2017 Tex. App. LEXIS 4555, 2017 WL 2192871, at *2 (Tex. App.—Waco May 17, 2017, pet. ref’d) (mem. op., not designated for publication) (error not preserved where appellant’s motions never ruled on by trial court). Thus, any complaint related to the trial court’s failure to grant appellant’s “Motion for Evidentiary Hearing,” filed on April 2, 2018, is not preserved for our review. See Ex parte Alfaro, 378 S.W.3d at 679 (must preserve complaint appellant did not receive evidentiary hearing on application for writ of habeas corpus); Ex parte Luciw, 2009 Tex. App. LEXIS 9864, 2009 WL 5150018, at *3.” Ex parte Crotts, No. 01-18-00666-CR, 2019 Tex. App. LEXIS 10269, at *15-16 (Tex. App.—Houston [1st Dist.] Nov. 26, 2019)

You have to comply with the pertinent rules:


Default Judgment: “Charles filed her notice of appeal fourteen days after the trial court entered judgment. She, therefore, knew about the default judgment within the period for challenging it with a motion for new trial but did not file a motion for new trial. See Tex. R. Civ. P. 329b(a) (“A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.”); Tex. R. Civ. P. 324(b)(1) (a motion for new trial to complain on appeal of the failure to set aside a default judgment). Because Charles did not file a motion for new trial, she did not introduce any evidence extrinsic to the record to support her satisfaction of any of the Craddock factors. Consequently, we hold that Charles has waived appellate review of her complaint that the trial court’s default judgment should be set aside.” Charles v. Crown Asset Mgmt., No. 05-18-01139-CV, 2019 Tex. App. LEXIS 10300, at *4 (Tex. App.—Dallas Nov. 26, 2019)

The record must show your complaint:


Reporter’s Record: “However, [*5] DPS filed a regular appeal, not a restricted appeal. In Reyes v. Credit Based Asset Servicing & Securitization, a regular appeal in which a party was represented at a hearing, this court held, “a party has the burden of objecting to the court reporter’s failure to record the proceedings.” 190 S.W.3d 736, 740 (Tex. App.—San Antonio 2005, no pet.) (citing TEX. R. APP. P. 33.1). And, without a reporter’s record in a regular appeal, we will generally presume the evidence is sufficient to support the trial court’s order. See L.C.H., 80 S.W.3d at 691. On original submission, we applied the rules for regular appeals rather than restricted appeals, declined to conclude DPS was absent or not represented by other counsel at the hearing, and held DPS waived its complaint about the absence of a reporter’s record by failing to object in the trial court.” Ex parte V.T.C., No. 04-18-00455-CV, 2019 Tex. App. LEXIS 10315, at *4-5 (Tex. App.—San Antonio Nov. 27, 2019)

Then, an assortment of cases held that complaints were not preserved because they were not raised in the trial court.

All for now. Y’all have a great week.

Yours, Steve Hayes; 817/371-8759


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
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