Error Preservation in Texas Civil Cases, September 2, 2019

Dear All:

Well, here we are at Labor Day–we may have the most brutal days of summer behind us, we can look forward to autumn, and the courts of appeals closed out the last week of their fiscal years (on August 31).  As usual, they issued a lot of opinions, and a lot of opinions which involved error preservation. Overwhelmingly, the error preservation decisions involved complaints which parties failed to raise at all in the trial court. Because of the volume of error preservation decisions, and the fact that most don’t add much to the jurisprudence, I’ve included only a few such decisions below–ones which I thought might help you, or give you a template to follow.

Table of Contents


The Blurbs

One court explained why an appellant had expressly presented an issue in response to a no-evidence motion for summary judgment:


Summary Judgment: “The City claimed in a letter notifying WIL of a violation of the reinstatement agreement for advertising for rental a “lakefront cabin with water trampoline” and “luxury lakefront mansion.” As we have discussed, the “luxury lakefront mansion” advertisement is in the record and constitutes a violation of the agreement as to lot 43. However, the alleged “lakefront cabin with water trampoline” advertisement is not in the record. Consequently, WIL claims that the City breached the agreement and improperly evicted it on lot 46. The City argues that WIL waived consideration of this issue because this argument was raised for [*16] the first time on appeal. We disagree. Issues a nonmovant contends avoid the movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see also Tex. R. Civ. P. 166a(c). In a no-evidence motion for summary judgment, after the movant specifies the elements for which there is no evidence, the burden then shifts to the nonmovant to produce evidence raising a genuine issue of material fact on the elements specified in the motion. Tex. R. Civ. P. 166a(i); Mack Trucks, 206 S.W.3d at 582. The nonmovant is “not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Tex. R. Civ. P. 166a(i), cmt. WIL satisfied this burden. WIL’s response to the City’s motion included the issue that it complied with the reinstatement agreement, that it performed its obligations under the agreement, and that termination of the leases and eviction was improper. It specifically identified and attached evidence to its response to the motion, including James Wasson’s deposition testimony. In it, he stated that he never rented either the large house or the cabin after the parties executed the reinstatement agreement. Furthermore, at times during Wasson’s testimony, counsel referred to advertisements generally, but he was presented only with the advertisement for the large home and specifically questioned about that advertisement. As we have stated, there is no advertisement in the record for the cabin on lot 46. Accordingly, this ground was before the trial court, WIL presented more than a scintilla of evidence that it complied with the reinstatement agreement as to the cabin, and the City failed to conclusively negate it. WIL raised a fact issue as to whether the City’s termination of the lease for lot 46 and eviction was improper.” Wasson Interests v. City of Jacksonville, No. 12-13-00262-CV, 2019 Tex. App. LEXIS 8022, at *15-17 (Tex. App.—Tyler Aug. 30, 2019)

A complaint about the failure to continue a summary judgment cannot be preserved by oral motion–it requires a written motion supported by an affidavit:


Continuance (Summary Judgment): “At the end of the hearing on Appellees’ motion for summary judgment Royale informed the trial court, “I would make a motion . . . [under] Texas Rule of Civil Procedure 215(1)(b)3(d) [sic] to compel discovery.” . . . . When a party contends that he has not had an adequate time for discovery before a summary judgment hearing, he must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tex. R. Civ. P. 166a(g), 251, 252; . . . . Royale did not file a verified motion for continuance or an affidavit explaining the need for further discovery. Accordingly, he has waived any argument that the trial court allowed an inadequate time for discovery or that Appellees’ motion for summary judgment was premature.” Royale v. Knightvest Mgmt., No. 05-18-00908-CV, 2019 Tex. App. LEXIS 8042, at *31-32 (Tex. App.—Dallas Aug. 30, 2019)

Understand the dangers of signing a judgment as “agreed to,” instead of “agreed to as to form, only:”


Judgment: “The judgment is titled “Agreed Final Judgment,” and Reedom signed the judgment as “Agreed to,” not just “agreed as to form.” This language is not necessarily sufficient to establish that the judgment is agreed, however, and appellate courts are not unanimous on the issue of whether a judgment can be challenged on appeal when it appears to be agreed but, like the Agreed Final Judgment, “has no recitation of the agreement in the body of the order itself.” Estate of Nielsen, 2018 Tex. App. LEXIS 7915, 2018 WL 4625531, at *4. However, here the Agreed Final Judgment further recited that “[t]he parties announced an agreement” and that the court was rendering judgment after hearing that agreement. Thus, the judgment reflects that an agreement existed and also that the county court had evidence of both its existence and its substance. Contra Bexar Cty. Crim. Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ) (stating that the word “Approved,” in the judgment signed by the appellant, with nothing more, did not indicate a consent judgment when “[n]othing in the body of the judgment suggests that the case had been settled or that judgment was rendered by consent” and that “[t]here are no other indications of agreement in the record”).

Nothing in the record indicates that Reedom signed the Agreed Final Judgment under protest or in any way indicated to the county court that it did not reflect the parties’ agreement. Contra Baw, 949 S.W.2d at 767 (holding that despite signing the divorce decree as “approved and consented to as to both form and substance,” the appellant, “by his objections to the trial court’s characterization of the [profit-sharing-retirement-trust] plan, did not explicitly and unmistakably give his consent to that portion of the divorce decree and did not waive his right of appeal”). He does not argue that the judgment erroneously states the existence of an agreement when none existed or that he did not agree to the terms of the judgment. In fact, he makes no argument at all about whether the Agreed Final Judgment was an agreed judgment. Nor does he argue that the county court did not have jurisdiction to render the Agreed Final Judgment. See Pillitteri, 165 S.W.3d at 718. Instead, he appears to complain about the dismissal of a federal lawsuit he filed against Woodstock and whether the dismissal was proper under federal rules of civil procedure. Accordingly, he has waived his issues on appeal.” Reedom v. 5950 Boca Raton LP, No. 02-18-00269-CV, 2019 Tex. App. LEXIS 7664, at *3-4 (Tex. App.—Fort Worth Aug. 26, 2019)

You must make your complaint in a timely manner–and comply with the pertinent rules:


Findings and Conclusions: “Father filed his request for findings and conclusions under rule of civil procedure 296. Rule of civil procedure 296 provides that in “any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law.” Tex. R. Civ. P. 296. Once properly requested, a trial court has twenty days to file its findings of fact and conclusions of law, and if the trial court fails to do so, the requesting party must notify the trial court within thirty days after filing the original request. Tex. R. Civ. P. 297. When a party notifies the trial court of its failure to file findings and conclusions, but the notice is untimely, the requesting party has waived the right to complain on appeal. See Vee Bar, Ltd. v. BP Amoco Corp., 361 S.W.3d 128, 131 (Tex. App.—El Paso 2011, no pet.) (holding ranch owners waived any right to complain on appeal about trial court’s failure to file findings of fact and conclusions of law where owners’ filing of past-due-findings notice in trial court was untimely). Here, the trial court signed its final modification order on December 20, 2018. On January 9, 2019, Father timely filed a request for findings of fact and conclusions of law. Then, on February 12, 2019, Father notified the trial court of past-due findings of fact and conclusions of law. Father’s notice of past-due findings and conclusions was not timely because it was more than thirty days after the January 9, 2019 request. Therefore, even if Father could claim an entitlement to findings under rule 296, he waived that entitlement.”  In the Interest of T.M., No. 02-19-00114-CV, 2019 Tex. App. LEXIS 7679, at *15-16 (Tex. App.—Fort Worth Aug. 26, 2019)

Limitations: “On appeal, Silverman admits that the trial court’s findings and conclusions and judgment did not specify the years from which the trial court derived each portion of the recovery amount, but she asserts that we must “assume[] that the portion of the 2013 debt included within was limitations-barred.” We disagree. It was Silverman’s burden to show that a portion of the Association’s requested recovery was time-barred and ensure the appropriate findings were entered. See Tex. R. Civ. P. 299; Payne, 381 S.W.3d at 618-19. By failing to do so she has waived any error by the trial court’s failure to find on her affirmative defense or by the trial court’s damage award.” Silverman v. Clairemont H.A., Inc., No. 02-18-00380-CV, 2019 Tex. App. LEXIS 7820, at *13-14 (Tex. App.—Fort Worth Aug. 28, 2019)

That’s all for right now.  Enjoy the rest of the holiday, and I hope to see you at the Advanced Civil Appellate Seminar later this week.


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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