Error Preservation in Texas Civil Cases, September 12, 2020

September 12, 2020

Dear All:

I hope all of you took the opportunity to watch the State Bar’s Advanced Civil Appellate Seminar this last week, and the Appellate Law 101 Course which preceded it.  Really, really good speakers, papers, and topics.  If you did not have a chance to catch it this last week, watch for the video replay.

Table of Contents

The Fort Worth Court thoroughly discussed improper, but not incurable, jury argument. The Court holds that to preserve a complaint about such argument, one must complain when the argument is made.

Your complaint must be specific enough

Notice(Cross Claim/New Trial)

The Blurbs

Here is part of the Fort Worth Court’s thorough discussion of improper, but not incurable, jury argument. The Court holds that to preserve a complaint about such argument, one must complain when the argument is made:

Jury Argument: “The subject of Appellants’ third issue is one of many caustic remarks by Michelin’s trial counsel. During closing argument, Michelin’s counsel was attempting to rebut an argument by the other side when he called Appellants’ argument “dishonest as the day is long.” Appellants did not object to this remark. Instead, [*19] they made it the subject of a motion for new trial. Appellants contend that the denial of their motion for new trial was reversible error because this jury argument was both improper and incurable. . . . Appellate complaints of improper jury argument must ordinarily be preserved by timely objection and request for an instruction to disregard, along with a ruling on the objection. . . . Typically, a retraction of the argument or an instruction from the court can cure any probable harm, but in rare instances the probable harm cannot be cured. . . . In such instances, the argument is incurable, and complaint about the argument may be made if preserved through a motion for new trial. . . .

The party claiming incurable harm must establish that, based on the record as a whole, the offensive argument was so extreme that a juror of ordinary intelligence could have been persuaded by that argument [*20] to agree to a verdict contrary to that to which he would have agreed but for such argument. . . . The complaining party must establish that the argument by its nature and degree constituted such error that an instruction from the court or retraction of the argument could not remove its effects. . . . Examples of incurable arguments may include appeals to racial prejudice; accusing the opposing party of manipulating a witness without evidence of witness tampering; comparison of opposing counsel to Nazis experimenting on the elderly; and other unsupported, extreme, and personal attacks on opposing parties and witnesses. . . .

But “[n]ot all personally critical comments concerning opposing counsel are incurable.” Living Ctrs., 256 S.W.3d at 681. Indeed, less-than-galling attacks on the veracity of the other side’s arguments are generally held to be curable. [cases discussed] . . . Michelin’s reference to Appellants’ argument as “dishonest as the day is long” fits in the mold that these cases have carved for improper but curable remarks.

Moreover, if the question under Phillips is whether this comment could have swayed an ordinary juror from one side to the other, the effect of this comment is dwarfed by the other argument and evidence in this case’s massive record. See 288 S.W.3d at 883. The parties conducted a two-week jury trial in which each side thoroughly made its case, exploring every facet of Michelin’s tire-production process, its supposed flaws, and their alleged relation to an accident in which two women lost their lives. While Michelin’s comments are not to be applauded, we doubt that they added a great deal to that mass of proof and persuasion. Michelin’s improper argument therefore did not cause incurable harm. We hold that the trial court did not abuse its discretion by denying Appellants’ motion for new trial, and we overrule Appellants’ third issue.”

Witt v. Michelin N. Am., Inc., No. 02-18-00390-CV, 2020 Tex. App. LEXIS 7373, at *18-22 (Tex. App.—Fort Worth Sep. 10, 2020)

Your complaint must be specific enough:

Notice(Cross Claim/New Trial): “In her motion for new trial, Appellant complained that she did not receive notice of the May 29, 2018 trial setting and did not know that the trial had been set. The evidence at the hearing on Appellant’s motion for new trial focused on whether Appellant received Quinney’s April 3, 2018 letter, Appellant’s belief that the letter was not an official notice that the case was set for trial, Appellant’s failure to take any steps to clarify whether the case was set for trial, and Appellant’s presence in the courthouse on the date of trial. The trial court made findings that Appellant had alleged in the motion for new trial that “she had not received notice of the trial date,” that Appellant had actual notice of the trial setting, and that Appellant chose not to appear. Appellant did not specifically argue in the trial court that she was entitled to a new trial because she received insufficient notice that the Trust’s cross-action would be heard on May 29, 2018. Appellant, therefore, failed to preserve this argument for our review.” Dreyer v. Christie L. Wislicenus, No. 11-18-00234-CV, 2020 Tex. App. LEXIS 7390, at *18-19 (Tex. App.—Eastland Sep. 11, 2020)

All for now.  Y’all have a great weekend, and stay safe and well.

Yours, Steve Hayes; 817/371-8759;


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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