November 6, 2021
Dearly Beloved:
Table of Contents
Here is a case which points out the problem of cutting a deal with the other side concerning a judgment, which includes mentioning your right to appeal the same–as this court of appeals brought up on its own, without the parties addressing preservation
Summary Judgment
The lack of subject matter jurisdiction can be raised for the first time on appeal
Condemnation
Here is a case in which a party preserved a complaint that attorney fees were not recoverable in a Dec Action
Attorney Fees
While I won’t profile them here, opinions this week reaffirmed that you must make complaint about the following in the trial court
Constitution
Evidence
Summary Judgment
Blurbs
Here is a case which points out the problem of cutting a deal with the other side concerning a judgment, which includes mentioning your right to appeal the same–as this court of appeals brought up on its own, without the parties addressing preservation:
Summary Judgment: “Can a party ask a trial court to render judgment, yet nonetheless reserve the right to appeal a portion of that judgment, in effect asking the appellate court to determine an issue that was not contested at trial? Put another way, may a party ask the trial court for a particular ruling, and then appeal that very ruling to this court? Because appellate courts do not reverse unless the trial court erred, we answer, “No.”
In three issues, appellant DHI Holdings, LP, attempts to appeal a final summary judgment. We conclude DHI has waived any error and affirm.” DHI Holdings, LP v. Deutsche Bank Nat’l Tr. Co., No. 14-19-00991-CV, 2021 Tex. App. LEXIS 8835, at *1 (Tex. App.—Houston [14th Dist.] Nov. 2, 2021)
The lack of subject matter jurisdiction can be raised for the first time on appeal:
Condemnation: “All the issues in this appeal concern the trial court’s subject matter jurisdiction. Subject matter jurisdiction is essential to the authority of a court to decide a case; it therefore cannot be waived and can be raised for the first time on appeal, even sua sponte…. For the first time on appeal, SJRA argues that Texas Government Code section 25.1032(c) imbues the Harris County civil courts at law with exclusive jurisdiction over all inverse condemnation claims filed in Harris County, thus, the district court lacked subject matter jurisdiction over the homeowners’ claims. Tex. Gov’t Code § 25.1032(c).” San Jacinto River Auth. v. Brocker, No. 14-18-00517-CV, 2021 Tex. App. LEXIS 9001, at *3-4 (Tex. App.—Houston [14th Dist.] Nov. 4, 2021)
Here is a case in which a party preserved a complaint that attorney fees were not recoverable in a Dec Action:
Attorney Fees: “The Church, citing no authority, suggests that Moroney waived her complaint about attorney’s fees by not objecting to the award of fees and by stipulating that fees would [*19] be submitted by affidavit to the court after trial. However, Moroney pleaded in her live petition that the Church was not entitled to attorney’s fees because the Church “brought their declaratory action solely for the purpose of obtaining attorney’s fees,” and “the Act may not be relied on to convert all actions into declaratory judgment actions.” At trial, counsel for the Church announced that there was a “stipulation that any attorneys’ fees awarded under the Declaratory Judgments Act will be post-trial based upon submission to the Court.” Counsel for Moroney clarified, “And with respect to the issue of attorneys’ fees, there’s case law in Texas that says that you can’t really bootstrap a quiet title or some other kind of an action into a DEC action just to recover attorneys’ fees, so I don’t think that anybody’s entitled to attorneys’ fees and I think that the only proper judgment is that the Court enter a take nothing for everybody.” Moroney reiterated her complaint in a post-trial memorandum. Under these circumstances, Moroney did not waive her complaint about the unavailability of attorney’s fees. See Tex. R. App. P. 38.1;” Moroney v. St. John Missionary Baptist Church, Inc., No. 14-20-00203-CV, 2021 Tex. App. LEXIS 8992, at *18-19 (Tex. App.—Houston [14th Dist.] Nov. 4, 2021)
That’s all for now. Y’all stay safe and well, and enjoy what I hope is a splendid Fall weekend.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com