Error Preservation in Texas Civil Cases, November 6, 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:


Attorney: “A complaint of ineffective assistance of counsel may be raised for the first time on direct appeal. See J.O.A., 283 S.W.3d at 340. A motion for new trial can be useful because it allows the complaining party to develop a record to support his complaint. However, the Department has not directed us to any authority suggesting a motion for new trial is a prerequisite to preserve error on ineffective assistance of counsel. The appellant may be unsuccessful in that complaint if the record below is not sufficiently developed, but the lack of merit in the complaint is distinct from the appellant’s right to assert the complaint.” In the Interest of Z.M.R., No. 14-18-00461-CV, 2018 Tex. App. LEXIS 8960, at *25 (App.—Houston [14th Dist.] Nov. 1, 2018)

Your complaint must be timely:


Defective Verdict: While the following may be a correct statement of the law–or may not be–I think it far too assertive as to the holding in Menchaca, as to which no majority of the Court dealt with this issue (though you have to have a scorecard to keep track of who voted for what in Menchaca): “Even were we to conclude that Davis has identified a conflict in the jury’s answers, [*14] which we do not, it is well-established that HN1 “to preserve error based on fatally conflicting jury answers, parties must raise that objection before the trial court discharges the jury.” See USAA Texas Lloyds Co., 545 S.W.3d at 518. When the alleged error is an incomplete, nonresponsive, or conflicting jury verdict, rule 295 requires the trial court to correct the error by providing additional instructions and retiring the jury “for further deliberations.” Id. (quoting Tex. R. Civ. P. 295). Once the trial court has discharged the jury, it cannot reform the conflicting answers as rule 295 requires. Id. If the trial court does not identify a conflict and no party raises it before the court discharges the jury, “the conflict provides no basis for reversal on appeal, even if it is ‘fatal.’” 520. We conclude that, because Davis did not raise any objections to the jury’s answers before the jury was discharged, error, if any, is not preserved.” Davis v. Vaughters, No. 01-17-00612-CV, 2018 Tex. App. LEXIS 8951, at *13-14 (App.—Houston [1st Dist.] Nov. 1, 2018)

Evidence: “After Dr. Davis showed these video clips, defense counsel continued to question Dr. Davis about his employers’ research generally before turning to the issue of whether he had an opinion regarding the San Lorenzo Church fire. The record shows that defense counsel finished [*111] with the direct-examination, and the Families cross-examined Dr. Davis for some time. During a break, counsel for the Families raised objections to various videos that Dr. Davis had shown specifically related to the issues of frosting and a residual flame in the event of a propane leak and moved for a mistrial. The Families contend that their objection to Dr. Davis’ use of the videos after lengthy questioning on both direct and cross-examination was timely because the defendants failed to provide Dr. Davis’ file to the Families in time for the deposition or trial. However, Tex.R.App.P. 33.1 requires an objection to be timely, an “[o]bjection to the admission of evidence must be made when the evidence is offered and not after it has been introduced.” Wenco of El Paso/Las Cruces, Inc. v. Nazario, 783 S.W.2d 663, 665 (Tex.App.–El Paso 1989, no writ). Because the Families did not object to the videos until after a substantial amount of time had passed, the objection was not timely and this issue was not preserved for appellate review.” Porter v. Heritage Operating, L.P., No. 08-13-00002-CV, 2018 Tex. App. LEXIS 8902, at *110-11 (App.—El Paso Oct. 31, 2018)

You have to comply with other pertinent rules:


Evidence: “Here, we do not find, and Jennings does not direct us to, any place in the record in which he actually offered in the trial court, either at the hearing on the motion for enforcement or at the hearing on his motion for new trial, the evidence and testimony, i.e., regarding his payment of taxes due on, and any lack of insurability of, the Yida property, that he complains was excluded. See Akukoro, 2013 Tex. App. LEXIS 15302, 2013 WL 6729661, at *6; Fletcher, 57 S.W.3d at 606. There being no actual offer of the complained-of evidence and testimony in the [*10] trial court, no ruling by the trial court, and no offer of proof or bill of exception, we conclude that Jennings has waived any error in such exclusion.” Jennings v. Martinez, No. 01-17-00553-CV, 2018 Tex. App. LEXIS 8520, at *9 (App.—Houston [1st Dist.] Oct. 18, 2018)

Legal and Factual Sufficiency: “ In a jury trial, a legal sufficiency issue must be preserved through one of the following procedural steps in the trial court: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex. 1992); Salinas v. Fort Worth Cab & Baggage Co., 725 S.W.2d 701, 704 (Tex. 1987). Further, to complain about the factual sufficiency of the evidence to support a jury finding, a party must file a motion for new trial. See Tex. R. Civ. P. 324(b). A review of the record reveals that J.C. did not take any of the procedural steps necessary to advance either his legal or factual sufficiency challenges for appellate review. Thus, J.C.’s arguments regarding the sufficiency of the evidence to support the temporary commitment order are not preserved.” In the Interest of J.C., No. 10-18-00214-CV, 2018 Tex. App. LEXIS 8914, at *4 (App.—Waco Oct. 31, 2018)

Notice: “Tyhan first contends that the trial court abused its discretion by denying Tyhan’s motion for a new trial because Tyhan did not receive notice of the hearing on Cintas’s motion for summary judgment.

We review a trial court’s denial of a motion for new trial for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). But we do so only if the movant has preserved its complaint for appellate review; if a movant seeks a new trial on a ground on which evidence must be heard by the trial court, the movant must obtain a hearing on its new-trial motion to preserve error. See TEX. R. APP. P. 33.1(b); Felt v. Comerica Bank, 401 S.W.3d 802, 808 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A movant must present evidence to show lack of notice as to a trial setting or hearing. Hendricks v. Barker, 523 S.W.3d 152, 157 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Wilson v. Gen. Motors Acceptance Corp., 897 S.W.2d 818, 820 (Tex. App.—Houston [1st Dist.] 1994, no writ).

The record does not show that Tyhan set its motion for hearing, or requested that the trial court consider it by written submission, and the trial court never acted on the motion. Instead, Tyhan’s motion for new trial was overruled by operation of law. Tyhan therefore has not preserved its complaint as to lack of notice for our review. See TEX. R. APP. P. 33.1(b); Felt, 401 S.W.3d at 808; see also R & G Transp. v. Fleetmatics, No. 01-14-00891-CV, 2016 Tex. App. LEXIS 624, 2016 WL 268553, at *2 (Tex. App.—Houston [1st Dist.] Jan. 21, 2016, no pet.) (mem. op.)  (no abuse of discretion when movant fails to set new-trial motion for hearing and it is overruled by operation of law).” Tyhan, Inc. v. Cintas Corp. No. 2, No. 01-18-00027-CV, 2018 Tex. App. LEXIS 8847, at *3 (App.—Houston [1st Dist.] Oct. 30, 2018)

Notice: “Johnson and Walton asked the trial court to [*3] set aside its default judgment in their motion for new trial [based on lack of notice of the lawsuit and the default hearing, apparently], but they did not set the motion for a hearing, or request that the trial court consider it by written submission. The trial court never acted on the motion. Instead, the motion was denied by operation of law. Because a hearing on the motion for new trial was required to preserve the issues raised in the motion for our review, we overrule their appellate complaint. See Tex. R. App. P. 33.1(b).” Johnson v. Lee, No. 01-17-00773-CV, 2018 Tex. App. LEXIS 8851, at *2-3 (App.—Houston [1st Dist.] Oct. 30, 2018)

Summary Judgment (homestead): “In their second issue, the Brannicks argue that the trial court erred in granting summary judgment because Nationstar did not establish its entitlement to judicial foreclosure. Specifically, the Brannicks assert that Nationstar failed to overcome an alleged presumption of invalidity that attaches to a home-equity loan under the Texas Constitution, failed to demonstrate that the loan complies with all the requirements of Article XVI, Section 50(a) of the Texas Constitution, and failed to produce a copy of the Note signed by both appellants. Nationstar asserts that the Brannicks waived both arguments by not presenting them to the trial court. “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal” of a summary judgment. Tex. R. Civ. P. 166a(c); ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 545 (Tex. 2017). The Brannicks argued the statute of limitations and “chain of title errors” in their response to Nationstar’s motion but did not assert any of the arguments they now make on appeal. Consequently, we conclude that the Brannicks have waived each of these arguments. n. 4 n. 4 The Brannicks argue that this issue cannot be waived because it amounts to a challenge to the legal sufficiency of Nationstar’s grounds for summary judgment. See, e.g., Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014) (stating rule that nonmovant may challenge “the legal sufficiency of the grounds presented by the movant” for the first time on appeal). However, the Texas Supreme Court has held that the terms and conditions in section 50(a) “only assume constitutional significance when their absence in a loan’s terms is used as a shield from foreclosure.” Garofolo v. Ocwen Loan Servicing, L.L.C., 497 S.W.3d 474, 478 (Tex. 2016); see Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 546 (Tex. 2016) (observing that “section 50(a) does not create substantive rights beyond a defense to foreclosure of a home-equity lien securing a constitutionally noncompliant loan”). The Brannicks did not raise section 50(a) in the trial court as a defense to foreclosure and they may not do so for the first time on appeal. See Watson v. Tipton, 274 S.W.3d 791, 800 (Tex. App.—Fort Worth 2008, pet. denied) (“Accordingly, Appellants had to affirmatively plead homestead and cannot raise it for the first time on appeal.”).” Brannick v. Aurora Loan Servs., LLC, No. 03-17-00308-CV, 2018 Tex. App. LEXIS 8981, at *10 (App.—Austin Nov. 2, 2018)

You must get a ruling on your complaint:


Attorney: “Next, Jamal complains that the trial court did not address his motion to appoint counsel to represent him. HN4 As a prerequisite to presenting a complaint for appellate review, the record must show that the complaining party made the complaint to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a). The trial court must either rule on the request, objection, or motion, expressly or implicitly, or refuse to rule, and the complaining party must object to the refusal. Id. The record contains no evidence that Jamal received a ruling on his motion to appoint counsel or that he objected to the court’s refusal to rule. He therefore has not preserved this issue for our review.” Jamal v. Woodbridge Crossing, No. 01-16-00726-CV, 2018 Tex. App. LEXIS 8849, at *4 (App.—Houston [1st Dist.] Oct. 30, 2018)

Motion to Compel: “BFM simultaneously filed a separate motion to compel Chastain’s deposition and requested that the trial court rule that Botrie’s communications with Chastain were not privileged. The trial court denied the motion for a continuance by written order but never ruled on the motion to compel. Because the trial court neither ruled on nor refused to rule on the motion to compel, we conclude that BFM failed to preserve error, if any. See Tex. R. App. P. 33.1(a).” Barton Food Mart, Inc. v. Botrie, No. 03-17-00292-CV, 2018 Tex. App. LEXIS 8673, at *11 n.5 (App.—Austin Oct. 25, 2018)

As usual, a number of cases dealt with situations in which parties did not raise their complaints in the trial court.

I hope this helps.  Y’all take good care.

Yours, 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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