Error Preservation in Texas Civil Cases, October 7, 2019

Dear All:

Once again, there were not a lot of error preservation decisions last week–not unusual for this time of year.

Table of Contents


The Blurbs

One case presented a reminder that a court of appeals will not consider, as a ground for reversing a summary judgment, an issue not expressly presented to the trial court by written motion, answer, or other response:


Summary Judgment: “In the context of summary judgments, “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (quoting Tex. R. Civ. P. 166a(c)). Thus, in order to preserve error for appeal, “[c]omplaints and argument on appeal must correspond with the complaint made at the trial court level.”. . . . Barrett argues on appeal that the written contracts between Valero and Elite and Berry did not obligate Valero to continue to provide coverage if the rolling owner controlled insurance program (ROCIP) was discontinued after the work began. Thus, Barrett claims that Valero did not “provide” workers’ compensation insurance coverage to Elite and Berry, which means Berry and Elite were not entitled to the exclusive remedy defense. See Tex. Lab. Code Ann. § 406.123(a). However, this does not correspond with the arguments raised by Barrett in response to Elite’s and Berry’s motions for summary judgment at the trial court level. [*7]

In response to Berry’s motion for summary judgment, Barrett argued that, based on the terms of the written contract, Berry was an independent contractor as opposed to a deemed employee, meaning Berry was not entitled to the protection of the exclusive remedy defense. Because Barrett’s argument that Valero did not “provide” Berry coverage has been made for the first time on appeal, this issue is waived. See Tex. R. Civ. P. 166a(c)); Wells Fargo Bank, 458 S.W.3d at 916.

Likewise, in response to Elite’s motion for summary judgment, Barrett raised four arguments: (1) Elite did not establish that the written contract to provide coverage was in force and effect at the time the incident occurred; (2) Elite did not establish that the written contract covered the specific time and location of the injury; (3) there was a genuine issue of material fact as to whether Valero qualified as a general contractor; and (4) the written contract described Elite as an independent contractor, which precluded Elite from claiming deemed employee status. Barrett addresses none of these issues on appeal and instead argues that Valero did not “provide” coverage to Elite because “the contracts provide that in the event that Valero does not elect to furnish workers’ compensation [*8] insurance, that Berry and Elite agree to furnish the insurance at their expense, as opposed to Valero’s.” Because Barrett’s appellate issue was not properly raised in the summary judgment proceedings at the trial court level, this issue is waived. See Tex. R. Civ. P. 166a(c); Wells Fargo Bank, 458 S.W.3d at 916.” Barrett v. Berry Contracting, L.P., No. 13-18-00498-CV, 2019 Tex. App. LEXIS 8811, at *6-8 (Tex. App.—Corpus Christi Oct. 3, 2019)

One case held that a party could first raise a complaint on mandamus to the court of appeals if the case involved “highly unusual circumstances” indicating that raising the complaint in the trial court would be “futile”:


Guardian ad Litem: “The Guardian ad Litem, in urging this Court to deny FBISD’s request for mandamus relief, argues that FBISD failed to preserve its complaints for mandamus review because it did not challenge the trial court’s actions in appointing the Guardian ad Litem in the trial court before it filed its first supplemental petition for writ of mandamus. The Guardian ad Litem cites a 2003 memorandum opinion from this Court, In re Bank of America, N.A., No. 01-02-00867-CV, 2003 Tex. App. LEXIS 8722, 2003 WL 22310800, at *2 (Tex. App.—Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) (mem. op.), for the proposition that a writ of mandamus is akin to an equitable remedy and “[e]quity is generally not served by issuing an extraordinary writ against a trial court on a ground that was never presented to the court and that the court thus had no opportunity to address.” In that opinion, this Court also noted that the standard of review to issue a writ of mandamus is abuse of discretion and that “[i]t would be hard to conclude, without circumstances that were highly unusual or that made a trial court’s ruling void, that a trial court could abuse its discretion in making a ruling for a reason that was never presented to the court.” Id. We conclude that this case presents such “highly unusual” circumstances. By appointing the Guardian ad Litem (and reappointing the Master in Chancery) after FBISD filed its nonsuit, the trial court acted contrary to well-established law and clearly abused its discretion. Moreover, in the order reappointing the Master in Chancery, the trial court characterized FBISD’s nonsuit as an “attempted” nonsuit, indicating that it did not believe it was governed by the law holding that a nonsuit renders the case moot. Under these circumstances, requiring FBISD to specifically object to the trial court’s appointment of the Guardian ad Litem and the Master in Chancery in proceedings it had nonsuited before filing its supplemental mandamus petitions would be futile.” In re Fort Bend Indep. Sch. Dist., No. 01-18-01113-CV, 2019 Tex. App. LEXIS 8852, at *27 n.2 (Tex. App.—Houston [1st Dist.] Oct. 3, 2019)

All for now.  Y’all have a good week.

Yours, Steve Hayes


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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