Error Preservation in Texas Civil Cases, September 19, 2020

September 19, 2020

Dear All:

While we had the typical collection of error preservation decisions holding that parties had not raised their complaints in the trial court, we had a couple of cases which held that complaints were not preserved because they were not sufficiently specific. I always find those cases interesting. I initially started studying error preservation because I thought most failures to preserve complaint would arise from a lack of specificity; turns out, that is the least likely reason courts will hold a party failed to preserve a complaint. Shows what you get for thinking.

Table of Contents

Your complaint must be sufficiently specific

Tolling
Discovery

The Blurbs

Your complaint must be sufficiently specific:

Tolling: “In her “Motion for Leave to File Supporting Evidence and/or to Add Additional Materials and to File Additional Motions or Leave of Court to File an Amended Plaintiff’s Original Petition,” Vercher asserted that “tolling limitations” applied, but she did not refer to any particular tolling rule or explain why the unspecified tolling rule should apply to her suit. This bare assertion of “tolling limitations” did not sufficiently plead or raise any tolling rule.” Vercher v. Lawless, No. 03-19-00533-CV, 2020 Tex. App. LEXIS 7518, at *6 n.2 (Tex. App.—Austin Sep. 17, 2020)

Discovery: “The duty to propound proper discovery requests is on the litigants, not the courts. So the probate court did not have a duty to wade through Joe’s discovery and isolate those requests and interrogatories that did comply with the rules from the rest, particularly when Joe failed to point out that he wanted the court to compel the Applicants to answer a specific interrogatory question or a specific enumerated request.” In the Estate of Flarity, No. 09-19-00089-CV, 2020 Tex. App. LEXIS 7536, at *19 (Tex. App.—Beaumont Sep. 17, 2020)

All for now.  Y’all have a great weekend.

Yours, Steve Hayes

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

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