November 8, 2022
Dear Folks:
Table of Contents
A party preserved the complaint that attorney’s fees could not be awarded against him individually
One party preserved a complaint that the trial court improperly denied her request to late-file summary judgment evidence
Keep in mind that legal and factual sufficiency complaints can first be raised on appeal coming out of a bench trial–and that a plethora of complaints can be cast as sufficiency complaints
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Admonishments
Constitution
Constitution
Evidence
Notice
Zoom hearing
Blurbs
A party preserved the complaint that attorney’s fees could not be awarded against him individually:
Attorney’s fees: “Parties are restricted on appeal to the theory on which the case was tried. Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015). If no objection was made to the trial court that matches the complaint on appeal, then the issue has not been preserved for appellate review. See TEX. R. APP. P. 33.1; Ridge Nat. Res., L.L.C. v. Double Eagle Royalty, L.P., 564 S.W.3d 105, 121 (Tex. App.—El Paso 2018, no pet.) (providing that argument on appeal must correspond with the complaint made at the trial court level).
The availability of attorney’s fees under a particular statute is a question of law for the court. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989) (per curiam) (observing that statutory construction is a question of law). We construe Nadaf’s motion for new trial as asserting non-recoverability of attorney’s fees against him individually. In this post-trial motion, he asserted the trial court erred in entering judgment against him as there was no evidence he had acted outside of his capacity as president of N&A Properties. Bringing this complaint to the trial court’s attention, Nadaf gave it an opportunity to rule not only on the erroneous award of damages, but also on the availability of attorney’s fees. We conclude Nadaf sufficiently preserved this issue for appellate review.” N&A Props., Inc v. PH Steel, Inc., No. 08-20-00106-CV, 2022 Tex. App. LEXIS 8061, at *36 (Tex. App.—El Paso Oct. 31, 2022, no pet. h.)
This party preserved a complaint that the trial court improperly denied her request to late-file summary judgment evidence:
Summary Judgment Evidence: “Nexion contends Ms. Michal “failed to preserve error on the trial court’s exclusion of the declaration” because she “neither requested the opportunity to cure this defect nor moved for a continuance,” but instead “merely sought to add evidence to her reply” and “did not offer an amended affidavit or declaration that properly attached the records relied on.” Ms. Michal’s motion to late-file summary judgment evidence cited the portion of Rule 166a(f) regarding supplementation of affidavits and asked that the evidence in question be “attached.” We conclude Ms. Michal preserved error regarding exclusion of the declaration for failure to attach the required documents. See Tex. R. App. P. 33.1(a).” Michal v. Nexion Health at Garland, No. 05-21-00693-CV, 2022 Tex. App. LEXIS 8178, at *29-30 (Tex. App.—Dallas Nov. 4, 2022, no pet. h.)
Keep in mind that legal and factual sufficiency complaints can first be raised on appeal coming out of a bench trial–and that a plethora of complaints can be cast as sufficiency complaints:
Legal and Factual Sufficiency: “Medina claims we cannot grant relief in Lachica’s favor on this point because he failed to request affirmative relief on this theory at the district court level. However, Lachica raises the point of error as one of legal and factual insufficiency, which may be raised for the first time on appeal. Tex.R.App.P. 33.1(d)(“In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s brief.”).” Lachica v. Medina, No. 08-21-00022-CV, 2022 Tex. App. LEXIS 8116, at *12 n.1 (Tex. App.—El Paso Nov. 2, 2022, no pet. h.)
All for now folks. Take good care, vote if you have not, and enjoy the rest of the week.
Yours,
Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com