Error Preservation in Texas Civil Cases, October 31, 2020

October 31, 2020

Dear All:

Happy Halloween and, come tomorrow morning, Dia de los Muertos.  Remember to set your clocks back this evening before bed.

The Courts issued a lot of error preservation decisions this week, and they collectively provide many teachable moments:

Table of Contents

Remember: if you move for a traditional summary judgment, you have the burden to prove your entitlement to judgment as a matter of law–and you opponent can first challenge that entitlement on appeal

You may raise some complaints for the first time on appeal

Affidavit (Conclusory)

You preserve your complaint if you make it in a timely fashion and get a ruling on it

Notice (Rule 76a sealing)

You must present your complaint to the trial judge in a timely fashion

Arbitration

You must comply with other pertinent rules

Jury Charge
Summary Judgment

You must get a ruling on your complaint

Affidavit

Your complaint on appeal must comport with the complaint you made at trial

Continuance

Your complaint must be sufficiently specific

Continuance

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

Testimony
Summary Judgment

The Blurbs

Remember: if you move for a traditional summary judgment, you have the burden to prove your entitlement to judgment as a matter of law–and you opponent can first challenge that entitlement on appeal:

Summary Judgment: “Assuming without deciding that Boren’s motion for new trial was insufficient to preserve this issue for our review, we conclude that Boren can raise this issue on appeal because he is appealing a summary judgment and was not obligated to file a motion for new trial in order to preserve his complaint about attorney’s fees. See [*5] Tex. R. Civ. P. 324; Lee v. Braeburn Valley W. Civic Assoc., 786 S.W.2d 262, 263 (Tex. 1990); Guzman v. Carnevale, 964 S.W.2d 311, 314 (Tex. App.—Corpus Christi 1998, no pet.). HN1 A nonmovant may file no answer at all to a motion for summary judgment and still contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Here, Boren did not waive his challenge to the award of attorney’s fees by not objecting to it in his summary judgment response because it was Newport’s burden conclusively to prove a legal basis for them.” Boren v. Newport Operating, LLC, No. 02-19-00358-CV, 2020 Tex. App. LEXIS 8517, at *4-5 (Tex. App.—Fort Worth Oct. 29, 2020)

You may raise some complaints for the first time on appeal:

Affidavit (Conclusory): “Fiamma next contends that Treistman’s and Hoffman’s affidavits were conclusory and, therefore, no evidence of the Underwriters’ attorney’s fees. Fiamma specifies that Treistman did not establish the qualification of each attorney and paralegal that billed hours to the Underwriters, did not provide the hourly rate for each person, and failed to establish that each billed task was incurred with respect to the challenged causes of action. Fiamma’s beef with Hoffman’s affidavit is [*43] that he failed to use the word “reasonable” in stating his discounted hourly billing rate for the Underwriters’ co-defendant, rendering his opinion conclusory. Although Fiamma did not secure a ruling on these objections to the affidavits, an objection that an affidavit is conclusory is a substantive one that is not subject to preservation-of-error requirements. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam).” Statler v. Challis, No. 02-18-00374-CV, 2020 Tex. App. LEXIS 8519, at *42-43 (Tex. App.—Fort Worth Oct. 29, 2020)

You preserve your complaint if you make it in a timely fashion and get a ruling on it:

Notice (Rule 76a sealing): “The Lewis parties contend the Appellants have waived their complaints [*18] regarding the trial court’s non-compliance with Rule 76a’s notice and hearing requirements because they raised them “too late.” We disagree. HN13 Generally, to preserve an issue for appellate review, a party must: (1) present to the trial court a timely request, objection, or motion; (2) state the specific grounds therefor; and (3) obtain a ruling. TEX. R. APP. P. 33.1(a). “An objection is timely if it is asserted at the earliest opportunity or interposed at a point in the proceedings when the trial court has an opportunity to cure any alleged error.” Yetiv v. Comm’n for Lawyer Discipline, No. 14-17-00666-CV, 2019 Tex. App. LEXIS 2042, 2019 WL 1186822, at *3 (Tex. App.—Houston [14th Dist.] March 14, 2019, no pet.) (mem. op.). The record shows the Appellants presented their complaints about the failure to comply with Rule 76a’s notice and hearing requirements and obtained ruling on their complaints, and they did this while the trial court had an opportunity to cure the complaints and before it signed the judgment permanently sealing the court records in this case.” Rice v. Lewis Energy Grp., L.P., No. 04-19-00234-CV, 2020 Tex. App. LEXIS 8455, at *17-18 (Tex. App.—San Antonio Oct. 28, 2020)

You must present your complaint to the trial judge in a timely fashion:

Arbitration: “Additionally, Heilmann filed his motion to modify the judgment or to correct the arbitration awards and his supplemental motion on September 28, 2018, and October 9, 2018, respectively, which was well after the August 30, 2018 final order confirming the arbitration award. The trial court signed an order denying Heilmann’s motion to modify the judgment or to correct the arbitration awards on October 10, 2018. Because Heilmann’s motions to vacate or modify the arbitration awards were not raised or considered before or simultaneously with Jensen’s motion to confirm the arbitration awards, Heilmann waived these complaints.” Heilmann v. Heilmann, No. 04-18-00849-CV, 2020 Tex. App. LEXIS 8447, at *7 (Tex. App.—San Antonio Oct. 28, 2020)

You must comply with other pertinent rules:

Jury Charge: “In their second issue, the Tousant Parties assert that the trial court erred by failing to submit to the jury the question requested by the Tousant Parties regarding “proper lookout.” Under this issue, the Tousant Parties also assert that the trial court denied their request that “an element of proper lookout be included in the charge.” Thus, it appears that the Tousant Parties also may be complaining that the trial court failed to submit to the jury an instruction on “proper lookout.” The sole objection or request the Tousant Parties made at the charge conference consisted of ten words: “The only objection I would make is excluding proper lookout.” Buchanan did not rely on any question regarding “proper lookout.” In this context, to preserve error on their complaint that the trial court improperly omitted a question or instruction on “proper lookout,” the Tousant Parties had to do more than just object. The law required them to (1) tender a [*4] written request to the trial court for submission of the question or instruction, (2) which is “in substantially correct wording.” See Tex. R. Civ. P. 278; . . . . Because the record does not reflect that the Tousant Parties tendered a written request, they failed to preserve error in the trial court on their second issue. See Tex. R. Civ. P. 278;” Tousant v. Buchanan, No. 14-18-00574-CV, 2020 Tex. App. LEXIS 8498, at *3-4 (Tex. App.—Houston [14th Dist.] Oct. 29, 2020)

New Trial: “In its unverified motion for new trial and in its appellate brief, the Department alleged facts not in the record—namely, whether J.A.L. had prior convictions that constitute the same or similar offense for which J.A.L. sought an expunction. Without deciding the merits of the Department’s argument, we hold that the existence of those prior convictions was necessary information for the trial court to determine whether J.A.L. was entitled to an expunction or whether “the offense for which [J.A.L.] was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code,” and whether J.A.L. “was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.” Tex. Code Crim. Proc. Ann. art. 55.01(c). Because new evidence was necessary to support the Department’s argument that J.A.L. failed to qualify under the statutory requirements of the expunction statute, the Department had an obligation to notify the trial court of its purported error in granting J.A.L.’s motion for expunction by filing a verified motion for new trial and seeking a ruling of that [*8] motion. See Tex. R. Civ. P. 324(b)(1); . . . . Moreover, when a motion for new trial requires a hearing, as here, the movant must ask the court for a setting and not allow its motion to be overruled by operation of law. . . . Because the Department failed to file a verified motion for new trial and failed to seek a hearing on that motion, we hold it waived error, if any, and failed to preserve its argument for appeal.” In re Expunction of J.A.L., No. 08-19-00138-CV, 2020 Tex. App. LEXIS 8477, at *7-8 (Tex. App.—El Paso Oct. 28, 2020)

Summary Judgment: “We move next to Pioneer’s argument that the indemnity clause does not pass the express-negligence test for gross-negligence claims. Pioneer, however, did not present this theory to the trial court in its summary judgment motion, so we cannot consider it on appeal as a ground for reversal. Tex. R. Civ. P. 166a(c); Tex. R. App. P. 33.1(a);” Pioneer Energy Servs. Corp. v. Burlington Ins. Co. As Subrogree of Premier Coil Sols., Inc., No. 14-18-00879-CV, 2020 Tex. App. LEXIS 8528, at *9 (Tex. App.—Houston [14th Dist.] Oct. 29, 2020)

You must get a ruling on your complaint:

Affidavit: “Baker argues that her evidentiary objections were preserved without a ruling by the trial court because Webb’s motion to dismiss was denied by operation of law. See Tex. R. App. P. 33.1(b) (stating the overruling by operation of law of a motion for new trial or a motion to modify the judgment generally preserves for appellate review complaints made in these motions). We reject this argument. By its express language, Rule 33.1(b) only applies to complaints raised in a motion for new trial or a motion to modify the judgment; it does not apply to motions to dismiss under the TCPA. See id. Here, Baker was required to preserve her complaint that Webb’s entire affidavit could not be considered because it was “conclusively false” by obtaining a ruling [*14] on her objection. See TEX. R. APP. P. 33.1(a); . . . Because Baker failed to obtain a ruling on her objection, she failed to preserve this complaint for appellate review.” Baker v. Orange Panda, LLC, No. 04-19-00846-CV, 2020 Tex. App. LEXIS 8456, at *13-14 (Tex. App.—San Antonio Oct. 28, 2020)

Your complaint on appeal must comport with the complaint you made at trial:

Continuance: “In her first issue, Mother asserts that she moved for a continuance before the start of trial on the ground that she had no counsel and that the trial court abused its discretion in denying the motion. The record does not show that Mother requested a continuance on absence-of-counsel grounds. The trial court discussed with the parties the history of delays and postponements in the proceeding and in a related proceeding and noted the challenges in proceeding to trial without counsel for Mother. Nonetheless, our record does not reflect that Mother asked the trial court to continue the trial because she had no counsel. Because Mother’s argument on appeal as to why she should have received a continuance does not comport with any argument she presented to the trial court, she has failed to preserve error on the appellate complaint she presents today.” In the Interest of G.S.C., No. 14-18-00970-CV, 2020 Tex. App. LEXIS 8499, at *4 (Tex. App.—Houston [14th Dist.] Oct. 29, 2020)

Your complaint must be sufficiently specific:

Continuance: “In her second issue, Mother complains that the trial court abused its discretion by failing to continue trial on the ground that CPS caseworker Sharise Washington was not available to testify. Mother alleges that she orally moved for a continuance mid-trial due to Washington’s absence, shortly after learning that Father’s lawyer released Washington from her obligation to appear at trial. Mother cites the part of the reporter’s record in which Mother said, “There are other witnesses that can show up and we had to continue. I don’t think it would be fair.” Because the statement is made in the past tense, we cannot conclude that Mother’s spoken [*7] words amounted to a request for the trial court to continue the trial. This past-tense statement lines up contextually with statements Mother made several moments later when explaining to the trial court why the hearing (on Mother’s application for a temporary protective order) was reset to later in the month.

To support her assertion that Washington’s testimony met the materiality requirement, Mother points to the part of the reporter’s record in which Mother said, “I believe Sharise [Washington], if she knows more knowledge about the case [than her supervisor Jessica Del Fierro], she should be present.”

The trial court expressed a desire to hear Washington’s testimony and noted that Father’s attorney had no authority to release Washington after the witness had been sworn. Then, the trial court, in passing, sua sponte weighed the merits of delaying trial for Washington’s testimony, stating to Mother:

Once again this puts me in the box. I very much would like to hear from Sharise Washington. However, this gentleman is entitled to have his day in Court; and you have done everything possible to delay.

Mother did not explain how the absence of Washington’s testimony (or evidence that could [*8] be offered through Washington) would impact the presentation of her case. Though the trial court and Mother acknowledged the absence of the witness, on this record we cannot say that Mother preserved her complaint with sufficient specificity to make the trial court aware that she was seeking a continuance based on Washington’s absence.” In the Interest of G.S.C., No. 14-18-00970-CV, 2020 Tex. App. LEXIS 8499, at *6-8 (Tex. App.—Houston [14th Dist.] Oct. 29, 2020)

All for now.  Y’all stay safe and healthy and enjoy the beautiful weekend.

Yours, Steve Hayes

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

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