Error Preservation in Texas Civil Cases, October 3, 2020

October 3, 2020

Dear All:

Well, folks, it remains beautiful Fall weather, at least here in Fort Worth, and the outlook for more of the continues for the next 10 days or so.  It is a great time of year for this part of the world.

Table of Contents

Remember: standing is a matter of subject matter jurisdiction, and a court of appeals may address standing sua sponte for the first time on appeal

We have an interesting opinion which shows how the trial court’s comments in the record can show how it understood the complaint–with the court of appeals holding that the trial court’s comments show the trial court did not understand the complaint to be the one asserted on appeal

Jury Argument

You must get a trial court ruling on your complaint

Evidence
Summary Judgment

The Blurbs

Remember: standing is a matter of subject matter jurisdiction, and a court of appeals may address standing sua sponte for the first time on appeal:

Standing: “Before we can reach the merits of relator’s petition, we first must determine whether relator has standing to bring this original proceeding. In re Hotze, No. 14-08-00421-CV, 2008 Tex. App. LEXIS 9897, 2008 WL 4380228, at *1 (Tex. App.—Houston [14th Dist.] July 10, 2008, no pet.) (per curiam) (mem. op.). The relator’s standing is an element of our subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). Subject-matter jurisdiction is never presumed, and lack of subject-matter jurisdiction is fundamental error that cannot be waived. Id. When we sua sponte review a party’s standing, we construe the petition in favor of the party and, if necessary, [*3] review the entire record to determine if any evidence supports standing. Id. at 446. Standing is a constitutional prerequisite to obtaining judicial relief, and courts have no subject-matter jurisdiction over and therefore must dismiss claims made by parties who lack standing to assert them.” In re Pub. Interest Legal Found., Inc., No. 14-20-00665-CV, 2020 Tex. App. LEXIS 7829, at *2-3 (Tex. App.—Houston [14th Dist.] Sep. 30, 2020)

We have an interesting opinion which shows how the trial court’s comments in the record can show how it understood the complaint–with the court of appeals holding that the trial court’s comments show the trial court did not understand the complaint to be the one asserted on appeal:

Jury Argument: “In its eighth issue, Chambers County contends that a new trial is required on its contract counterclaim against Pelco because Pelco’s counsel made an improper jury argument. During rebuttal argument, Pelco’s counsel stated:

Mr. Harris’ attorney at that time, . . . in his termination letter, not only did he refer to the retainage, he also referred to Section 14 of the contract which is in front of you, termination by the contractor. Chambers County’s attorney is correct that the owner can terminate — can stop the contract. This paragraph right here says that if they stop the contract for 30 or more days, then we [Pelco] get some rights. We [Pelco] have some rights.

Chambers County objected that the contract “does not say that.” The trial court overruled the objection, admonishing the jury that “[i]t’s argument. You have the evidence before you.” Chambers County did not offer any further explanation of its objection, though [*39] it complains now on appeal that the rebuttal argument was improper because the trial court had “already found in a prior summary judgment order that Pelco had no such right” to terminate and Pelco did not “plead that it had a right to terminate the [c]ontract based on” the provision that were the subject of the rebuttal argument.

The Rules of Appellate Procedure require that, to preserve an allegation of error for appellate review, the record must show a timely objection stating the grounds for the requested ruling with enough specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A). From the language used in the objection and the response of the trial court, it is apparent that the trial court did not perceive the objection to be directed at the alleged violation of a prior order or pleading rules. Rather, the record reflects that the trial court perceived the objection to be a disagreement with Pelco’s interpretation of the evidence. Nor can we say that the context of the objection makes the specific grounds now complained of clear. We therefore conclude that the error alleged was not preserved at trial pursuant to [*40] the Texas Rules of Appellate Procedure.” Chambers Cty. v. Pelco Constr. Co., No. 01-18-00832-CV, 2020 Tex. App. LEXIS 7811, at *38-40 (Tex. App.—Houston [1st Dist.] Sep. 29, 2020)

You must get a trial court ruling on your complaint:

Evidence: “Norma does not point to any place [*5] in record where the trial court issued an order excluding any expert witness or other evidence, and our independent review has not revealed any such trial-court action. For Norma to prevail on this point on appeal, the record must show that she offered evidence and that the trial court actually excluded the evidence. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a); . . . The record shows neither. Given Norma’s failure to preserve error on her exclusion-of-evidence complaint, she cannot possibly prevail on appeal.” Lopez v. Callahan, No. 14-18-00913-CV, 2020 Tex. App. LEXIS 7865, at *4-5 (Tex. App.—Houston [14th Dist.] Oct. 1, 2020)

All for now.  Go out and enjoy the beautiful weather.

Yours, Steve Hayes

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

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