Error Preservation in Texas Civil Cases, November 7, 2020

Dear All:

Well, it’s another beautiful day in the neighborhood, and the courts of appeals have provided us some delightful reading material to enjoy as we sit on our back porches and enjoy the Fall.

Table of Contents

Though lengthy, you need to read this one, because it hits so many preservation ambush themes: it shows the importance of knowing your claim, knowing your opponent’s defenses, and knowing that a complaint’s characterization as legal insufficiency can allow your opponent to first raise that complaint post-trial (or on appeal from a bench trial)

Legal Sufficiency

You may first raise a complaint on appeal about lack of subject matter jurisdiction–such as the lack of jurisdiction courts have over the internal management of a voluntary organization

Lack of Subject Matter Jurisdiction

Your must make your complaint with sufficient specificity to make the trial court aware of your complaint

Evidence

Here is an example of a court holding that a party preserved an objection to a charge as to a missing element–meaning the court of appeals could adjudge the sufficiency of the evidence as to the charge which should have been submitted

Jury Charge

You must present your complaint to the trial judge and get a ruling

Sanctions

You must comply with the pertinent rules

Legal and Factual Sufficiency

You must present your complaint to the trial judge and get a ruling

Findings and Conclusions
Summary Judgment

The Blurbs

Though lengthy, you need to read this one, because it hits so many preservation ambush themes: it shows the importance of knowing your claim, knowing your opponent’s defenses, and knowing that a complaint’s characterization as legal insufficiency can allow your opponent to first raise that complaint post-trial (or on appeal from a bench trial):

Legal Sufficiency: “In three issues, Ross Stores contends that the evidence is legally insufficient to support the jury’s negligence finding because the employees involved were Ross Dress for Less employees and Ross Stores did not exercise control over Ross Dress for Less’s safety policies and procedures. Miller contends in a cross-point that Ross Stores is making a misidentification argument cloaked as a legal sufficiency challenge and that Ross Stores waived its argument by failing to raise the misidentification defense or file special exceptions in the trial court. . . . .
I. Ross Stores [*4] did not waive its sufficiency challenge.
Miller contends Ross Stores’ failure to file a verified pleading raising a misidentification defense or special exceptions in the trial court precludes Ross Stores from bringing a sufficiency challenge on appeal. We have held that a party’s objection that it is not a proper party to a lawsuit is an issue of misidentification that must be raised by verified pleading. . . . Misidentification “arises when two separate legal entities exist and a plaintiff mistakenly sues an entity with a name similar to that of the correct entity.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 594 (Tex. 2017); . . . . Whether Ross Stores employed the actors or assumed control over their safety is an element of Miller’s negligence claim for which Miller bore the burden of proof at trial. . . . A defendant need not file a verified denial to challenge the sufficiency of the evidence in support of an affirmative finding on an element of the plaintiff’s claim. . . . . Accordingly, the lack of evidence supporting this element is not a defense that Ross Stores was required to assert in a verified pleading. . . . Miller relies [*6] on this court’s opinion in Allright, in which we held that the defendant, in failing to file a verified pleading setting forth a defect of parties, waived its complaint that there was no evidence that it operated the parking garage or employed the garage attendant where the plaintiff’s car was stolen. 666 S.W.2d at 517. In that case, the plaintiff brought claims for breach of a bailment contract and violations of the Deceptive Trade Practices Act after his car was stolen by a third party from a parking garage owned by Allright.. . . . The court held that Allright’s complaint was an attack on the pleadings, which required Allright to file a verified pleading setting forth a defect of parties or that it was not liable in the capacity in which it was sued. . . . Here, Ross Stores does not assert a defect of parties and does not challenge the capacity in which it was sued. Ross Stores simply contends that there is no evidence supporting a required element of the jury’s negligence finding. Allright does not apply to these facts.” Ross Stores, Inc. v. Miller, No. 14-18-01032-CV, 2020 Tex. App. LEXIS 8589, at *3-6 (Tex. App.—Houston [14th Dist.] Nov. 3, 2020)

You may first raise a complaint on appeal about lack of subject matter jurisdiction–such as the lack of jurisdiction courts have over the internal management of a voluntary organization:

Lack of Subject Matter Jurisdiction: “Here, appellants’ claims all related to DBOA’s removal of appellants as officers and to a subsequent Rule 11 agreement concerning the time and place of a vote by the DBOA membership to determine whether appellants should continue to serve as officers. Thus, all of appellants’ claims sought judicial interference with the internal management of a voluntary association. . . . Therefore, the trial court lacked subject matter jurisdiction over appellants’ claims. . . . Where the trial court does not have jurisdiction to render a judgment, the proper practice is for the reviewing court to set the judgment aside and dismiss the cause.” White v. Dall. Basketball Officials Ass’n, No. 05-19-01358-CV, 2020 Tex. App. LEXIS 8593, at *5 (Tex. App.—Dallas Nov. 2, 2020)

Your must make your complaint with sufficient specificity to make the trial court aware of your complaint:

Evidence: With respect to each document [at issue here], A.R.G. objected on the grounds that he had not been able to confront his accusers. The trial court overruled A.R.G.’s global objection. . . .In order to present “a complaint for appellate review,” A.R.G. was required to make a timely objection that “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A). “When an exhibit contains both admissible and inadmissible evidence, the burden is on the objecting party to specifically point out which portion of the evidence is inadmissible.”. . . Here, as in [In re L.D.T., No. 10-05-00016-CV, 2006 Tex. App. LEXIS 1082, 2006 WL 301073, at *1 (Tex. App.—Waco Feb. 8, 2006, pet. denied) (mem. op.)], A.R.G.’s global objections were “insufficient to make the court aware of which statements in or portions of the documents he believed [*6] violated the Confrontation Clause.” Id. At no point did A.R.G.’s objections “specifically refer to the challenged material to apprise the trial court of the precise objection.” Id. Our review of the record here shows that portions of each exhibit were admissible. “The trial court should never be required to sift through challenged evidenced to segregate admissible evidence from excludable evidence.” Id. “In those instances where an exhibit contains both admissible and inadmissible evidence, a trial court may ‘safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection.'” Id. . . . .Because A.R.G.’s global Confrontation Clause objection to voluminous documents did not preserve error, we overrule his sole complaint on appeal.” In re A.R.G., No. 06-20-00040-CV, 2020 Tex. App. LEXIS 8627, at *4-6 (Tex. App.—Texarkana Nov. 5, 2020)

Here is an example of a court holding that a party preserved an objection to a charge as to a missing element–meaning the court of appeals could adjudge the sufficiency of the evidence as to the charge which should have been submitted:

Jury Charge: “The first question the trial court submitted to the jury asked, “Did Compass fail to comply with the July 10, 2013 Agreement?” During the charge conference, Compass objected to the question arguing “it leaves out an important fact that we believe the letter agreement of July 10, 2013 is not an agreement, as we cited case law on this issue. It is not a contract.” Compass then submitted two proposed questions, which the trial court refused. . . . Compass made the trial court aware through its objections and proposed questions that a dispute existed regarding the formation of a valid contract, specifically, the element of intent to be bound. See Tex. R. Civ. P. 278 (noting that objection to failure to submit a question shall suffice in such respect if the question is one relied upon by the opposing party); . . . .Therefore, Compass properly preserved its objection to the charge by identifying the error “with sufficient specificity to make the trial court aware of the complaint[.]” See Tex. R. App. P. 33.1(a)(1)(A); . . . . Accordingly, we measure Compass’s complaint regarding the sufficiency of the evidence against the charge the trial court should have submitted.” Compass Bank v. Collier, No. 09-19-00112-CV, 2020 Tex. App. LEXIS 8646, at *14-16 (Tex. App.—Beaumont Nov. 5, 2020)

You must present your complaint to the trial judge and get a ruling:

Sanctions: “The record contains no ruling from the trial court, either implicit or explicit, on Menchaca’s motion for sanctions. Nor does the record reflect that the trial court refused to rule on such motion. In fact, the record reflects the opposite. The trial court indicated its intention to consider the motion, if it was presented to it for a ruling. However, Menchaca’s multiple requests to the trial court that the motion for sanctions be “stayed” demonstrate that he did not pursue a ruling on the motion or object to the trial court’s failure to rule. Thus, we hold that Menchaca failed to preserve this issue for appellate review. See Tex. R. App. P. 33.1(a).” Menchaca v. Ins. Co. of the Pa., No. 01-18-01122-CV, 2020 Tex. App. LEXIS 8582, at *33 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020)

You must comply with the pertinent rules:

Legal and Factual Sufficiency: “In response to Mother’s brief, the Department argues that Mother cannot challenge the legal and factually sufficiency of the evidence regarding best interest on appeal as she failed to preserve the argument for review. . . . 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.) (citations omitted). A review of the record before us shows that Mother did not properly preserve her legal and factually sufficiency arguments for review as the record does not include “(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[.]” Id.In the Interest of K.D.L., No. 09-20-00158-CV, 2020 Tex. App. LEXIS 8644, at *14-15 (Tex. App.—Beaumont Nov. 5, 2020)

You must present your complaint to the trial judge and get a ruling:

Findings and Conclusions: “Although Section 6.711(a) requires asset-value findings, Section 6.711(b) incorporates the Texas Rules of Civil Procedure. See Tex. Fam. Code Ann. § 6.711(a), (b); . . . Under Rule 298 of the Texas Rules of Civil Procedure, if a party does not [*3] request additional or amended findings, it cannot later attack the lack of such findings, and this remains true even in the context of Section 6.711(a). See Tex. R. Civ. P. 298; . . . . Because Philip has not complied with Rule 298, he cannot now complain about the absence of asset-value findings under Section 6.711.” Hamilton v. Hamilton, No. 02-19-00211-CV, 2020 Tex. App. LEXIS 8654, at *2-4 (Tex. App.—Fort Worth Nov. 5, 2020)

All for now.  Y’all have a great weekend, and stay safe and well.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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