October 29, 2022
Dear Folks:
Caught up. I think.
Table of Contents
Here is a case in which a party took advantage of the other side moving to reopen evidence in a bench trial on attorney’s fees to first assert a complaint about the failure to segregate–and the court of appeals held that complaint was timely
Attorney’s Fees
The Discovery Rule presents a tricky situation–if the plaintiff does not plead it, the defendant’s summary judgment motion does not have to address it. But if the plaintiff’s msj response raises the Discovery Rule, the defendant must complain that the Rule was not pled, and if the defendant fails to do so, it will have waived its complaint about the lack of pleading–i.e., tried the issue by consent
Discovery Rule
But trial by consent is difficult to prove, and requires“that both parties ‘understood what the issue was in the case, and the other party failed to make an appropriate complaint;’” it probably does not occur when the “trial court repeatedly stated during the…hearing that it was only hearing evidence” on another issue
Parental Right Termination
Your complaint must be sufficiently specific
Summary Judgment
Your complaint must be timely, which has its own quirks in parent child relationship cases
Contractual Jury Waiver
While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court
Administrative Agency Decision
Directed Verdict
Fees
Interview of Child
Notice
Statutory Notice and Hearing
Statute of Limitations
Waiver of Service
Warning (Safe Environment)
Witness
Blurbs
Here is a case in which a party took advantage of the other side moving to reopen evidence in a bench trial on attorney’s fees to first assert a complaint about the failure to segregate–and the court of appeals held that complaint was timely:
Attorney’s Fees: “The Association first contends the Hazels did not oppose their attorney’s testimony on fees, did not object to the invoices entered into evidence, entered no cross-examination of their witness, and presented no countervailing testimony. We construe these arguments as contending the Hazels waived below their objection to lack of claim segregation.
At trial, the Association’s attorney testified to the amount of attorney’s fees requested. The attorney testified to his hourly rate, the hourly rate of an associate, and the hourly rate of a legal assistant. He also testified to the work done in preparation for trial. The attorney testified the fees were reasonable and necessary. The Hazels did not object or cross-examine the Association’s attorney. During closing arguments, the Hazels asserted no attorney’s fees could be assessed because the Association did not follow the notice requirements of section 209.006 of the Texas Property Code. In response, the Association had argued attorney’s fees were permissible under the declaratory judgment statute and contractually.
The record clearly shows the Hazels did not object on the basis that the Association failed to segregate fees. The Hazels assert they did oppose the fee award during closing argument and the trial court understood the objection as it asked the Association to address the issue of attorney’s fees. However, the issue of segregation was never brought to the trial court’s attention either before or during trial….
But, in this instance, the record otherwise shows the issue of attorney’s fees was reopened and reheard by the trial court. In their response to the Association’s motion to reopen, the Hazels contested attorney’s fees, this time including an objection to the failure to segregate the fees. The trial court held a hearing on the Association’s motion whereby it granted the motion to reopen and granted the new attorney’s fees figure presented by the Association. In its ruling, the trial court stated “the motions” filed pursuant to the request were considered and taken into evidence. For this reason, we conclude the Hazels presented their segregation objection to the trial court and the trial court was able to rule on the objection, properly preserving the issue for our review. See Tex. R. App. P. 33.1(a)(1)(A).” Hazel v. Lonesome Ranch Prop. Owners Ass’n, No. 08-20-00075-CV, 2022 Tex. App. LEXIS 7981, at *59-61 (Tex. App.—El Paso Oct. 27, 2022, no pet. h.)
The Discovery Rule presents a tricky situation–if the plaintiff does not plead it, the defendant’s summary judgment motion does not have to address it. But if the plaintiff’s msj response raises the Discovery Rule, the defendant must complain that the Rule was not pled, and if the defendant fails to do so, it will have waived its complaint about the lack of pleading–i.e., tried the issue by consent:
Discovery Rule: “According to Vantage Bank, Gonzalez has waived her discovery rule complaint because she did not allege the application of the discovery rule in her petition. It is well-established that a defendant moving for summary judgment based on limitations is only required to negate the discovery rule when the plaintiff has pleaded it. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006). Notwithstanding this rule, when a plaintiff asserts the discovery rule for the first time in her summary judgment response, the defendant must object to the plaintiff’s failure to plead the discovery rule in order to preserve any error. See id. Furthermore, when the defendant does not object and argues that the discovery rule does not apply, the application of the discovery rule is tried by consent. See id.
Here, the record shows that Vantage Bank did not object to Gonzalez’s failure to plead the discovery rule in her petition. In addition, the record shows that the application of the discovery rule was tried by consent. Gonzalez filed responses to both of Vantage Bank’s summary judgment motions. In each response, Gonzalez argued the discovery rule applied to defer the accrual of her claims. In turn, Vantage Bank argued in its summary judgment motion and a reply that the discovery rule did not apply to Gonzalez’s claims. We conclude Gonzalez’s discovery rule complaint was preserved for appellate review.” Gonzalez v. Vantage Bank Tex., No. 04-21-00285-CV, 2022 Tex. App. LEXIS 7876, at *8-9 (Tex. App.—San Antonio Oct. 26, 2022, no pet. h.)
But trial by consent is difficult to prove, and requires“that both parties ‘understood what the issue was in the case, and the other party failed to make an appropriate complaint;’” it probably does not occur when the “trial court repeatedly stated during the…hearing that it was only hearing evidence” on another issue:
Parental Right Termination: “Mother acknowledges that she did not plead the predicate ground of abandonment—Family Code section 161.001(b)(1)(C)—in her termination petition….She argues, however, that the trial court properly terminated Father’s parental rights based on this predicate ground because the issue was tried by consent at the November 2021 hearing. We disagree. The trial court repeatedly stated during the November 2021 hearing that it was only hearing evidence on the question of whether Father should be granted supervised visitation with Isabelle during the pendency of Mother’s termination petition….Father acknowledges that evidence relevant to subsection (C) was presented at the November 2021 hearing. However, in determining whether an issue was tried by consent, we examine the record not for evidence of the issue, but for evidence of trial of the issue….A key component of this inquiry is whether the evidence is developed under circumstances indicating that both parties “understood what the issue was in the case, and the other party failed to make an appropriate complaint.” In re K.S., 448 S.W.3d at 533; see Ingram, 288 S.W.3d at 893. Mother’s statements about requesting termination are not an indication that both she and Father understood that she was now asserting subsection (C) as an additional, unpleaded predicate ground for termination….We should only apply the trial-by-consent doctrine in “exceptional” cases where the record clearly reflects that the parties tried an unpleaded issue by consent. …We should not apply the doctrine in a “doubtful situation.”….We conclude that this case is not an “exceptional case” in which the record clearly demonstrates that the parties tried the issue of whether Father’s parental rights should be terminated under the unpleaded ground of section 161.001(b)(1)(C) by consent. See id. The record instead reflects that the November 2021 hearing was solely a hearing on whether Father should be allowed supervised visitation with Isabelle and was not a final trial on the merits of Mother’s termination petition. Moreover, although evidence relevant to subsection (C) was presented at the hearing, it was not clear that both Mother and Father understood that Mother sought termination under subsection (C) in addition to the pleaded predicate ground of subsection (F). ….We hold that the trial court erred by finding, in its termination order, that Father violated subsection (C) because Mother did not plead subsection (C) as a predicate ground for termination and the parties did not try the issue by consent at the November 2021 hearing. See Tex. R. Civ. P. 301 (providing that judgment “shall conform to the pleadings”); Guillory, 442 S.W.3d at 690 (stating that judgment unsupported by pleadings is void).” In the Int. of I.A.B.N., No. 01-22-00306-CV, 2022 Tex. App. LEXIS 7241, at *21-25 (Tex. App.—Houston [1st Dist.] Sep. 29, 2022, no pet. h.)
Your complaint must be sufficiently specific:
Summary Judgment: “Merely citing generally to voluminous summary judgment evidence in response to a motion for summary judgment is not sufficient to raise a fact issue to defeat a summary judgment that adequately challenged the claims.” Costanzo v. Tex. Advantage Cmty. Bank N.A., No. 09-21-00345-CV, 2022 Tex. App. LEXIS 7249, at *9 (Tex. App.—Beaumont Sep. 29, 2022, no pet. h.)
Your complaint must be timely, which has its own quirks in parent child relationship cases:
Contractual Jury Waiver: “Appellants filed the motion to transfer venue on July 23, 2020. Though appellees contend “[a]ppellants were served with citation on or about June 27, 2020,” and the motion to transfer was thus untimely under section 155.204(b), the portion of the record appellees cite shows service only on appellant N.C. The record does not show service on appellant R.D.V. or that the motion to transfer was untimely as to R.D.V. See Tex. Fam. Code § 155.204(b).
As to error preservation, the record generally must show that the complaint presented on appeal was made to the trial court by a timely motion 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.”4 Tex. R. App. P. 33.1(a). Appellants’ motion to transfer venue described the lawsuit as “a Suit for Sibling Access,” requested transfer to Lubbock County, and stated that N.D.V. and E.D.V. had lived in Lubbock County for six months or more immediately preceding the filing of the case. Thus, the motion described the legal and factual grounds on which appellants’ appellate complaint is based. On this record, we conclude Rule 33.1(a)’s preservation requirements were met.” In the Int. of B.L.Z.P., No. 05-21-00987-CV, 2022 Tex. App. LEXIS 7252, at *12-13 (Tex. App.—Dallas Sep. 28, 2022, no pet. h.)
All for now. Y’all enjoy the rain.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com