Error Preservation in Texas Civil Cases, September 22, 2018

Dear Folks:

I know, it’s been a few weeks.  The courts took a little bit of a breather following the rush to get cases out the door before the end of their fiscal years, so I thought I would wait until I had a few cases to post.  This entry will cover the following recent error preservation decisions:

Table of Contents


And now, here are those decisions.

Some complaints can be raised for the first time on appeal–like the failure to appoint counsel in a parental right termination case:


Counsel: “In this case, J.B.J., Jr. was incarcerated throughout the case and was never informed of his right to be represented by an attorney or his right to a court-appointed attorney if he was found to be indigent. See Tex. Fam. Code Ann. §§ 107.013(a)(1), 262.201(c), 263.0061(a). Further, the final trial of this case began without J.B.J., Jr. present and a witness testified without being cross-examined by J.B.J., Jr. However, the Department argues that J.B.J., Jr. failed to preserve his complaints for appellate review. The Department contends that J.B.J., Jr. did not object before or during trial to the timing of the appointment of his trial counsel. We disagree.

In Marin v. State, the court of criminal appeals stated that a defendant [*6] must expressly relinquish certain rights and that these rights cannot be extinguished by inaction alone. See Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993). The right to the assistance of counsel is one of these rights. Id. at 279. Instead, the State must obtain the defendant’s permission by express waiver or the “intentional relinquishment or abandonment of a known right or privilege.” Id. This “waivable right” is never deemed to have been waived unless the defendant says so plainly, freely, and intelligently, sometimes in writing and always on the record. Id. at 280. Because some courts have recognized that in certain contexts termination suits are quasi-criminal, we determine that the right of assistance of counsel cannot be waived. In the Interest of B.L.D., 56 S.W.3d 203, 211-12 (Tex. App.—Waco 2001) (rev’d on other grounds, 113 S.W.3d 340, 342-43 (Tex. 2003)) (noting that statutory right to counsel in termination proceedings includes a due process right that counsel be effective); In re J.M.S., 43 S.W.3d 60, 63 n. 1 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (arguing by analogy in termination case that certain other family law proceedings are quasi-criminal in nature); In the Matter of the Marriage of Hill, 893 S.W.2d 753, 755-56 (Tex. App.—Amarillo 1995, writ denied) (likening the procedural issues in parental termination cases to those of criminal cases as both implicate constitutional concerns); see also Edwards v. Texas Dep’t of Protective and Regulatory Servs., 946 S.W.2d 130, 135 (Tex. App.—El Paso 1997, no writ) (quoting approvingly of Hill). Thus, J.B.J., Jr. did not waive his right to assistance of counsel.” In the Interest of A. J., No. 12-18-00074-CV, 2018 Tex. App. LEXIS 7452, at *5-6 (Tex. App.—Tyler Sep. 10, 2018)

Your complaint must be timely:


Dismissal: “Under the law as it existed on the date this suit was filed, a trial court did not lose jurisdiction over a termination proceeding when the dismissal date passed. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). Furthermore, a party who failed to “make a timely motion to dismiss” prior to the commencement of the trial waived the right to object to the trial court’s failure to dismiss the suit. Former Fam. § 263.402(b); see In re K.L.C., No. 11-14-00019-CV, 2014 Tex. App. LEXIS 7766, 2014 WL 3639124, at *6 (Tex. App.—Eastland July 17, 2014, pet. denied) (mem. op.). Although Section 263.402(b) was deleted by the legislature in the 2017 amendments to the Family Code, it remained in effect in this case. See In re T.W., No. 07-18-00056-CV, 2018 Tex. App. LEXIS 6309, 2018 WL 3799883, at *2 (Tex. App.—Amarillo Aug. 9, 2018, no pet. h.) (holding that parents were obligated to timely move for dismissal). Here, Appellant failed to file her motion to dismiss prior to the commencement of the trial. Therefore, under the law applicable to [*4] this case, she waived the right to object to any failure of the trial court to dismiss this suit based upon the mandatory dismissal date. See former Fam. § 263.402(b).” In the Interest of A.L.S., No. 11-18-00090-CV, 2018 Tex. App. LEXIS 7533, at *3-4 (Tex. App.—Eastland Sep. 13, 2018)

Your Complaint has to be specific enough:


Jury Selection: “To preserve error, a party must inform the trial court—either prior to or contemporaneously with the tendering of peremptory strikes—that it has used its peremptory strike against the venire member involved and that it has exhausted its remaining strikes. . . . The party must then identify to the trial court a specific objectionable venire member who will remain on the jury list because the party has no more strikes available. . . . Only when the trial court is made aware that an objectionable juror will be chosen is the trial court then able to determine if the party was in fact forced to take an objectionable juror. . . . Because Appellants’ counsel did not notify the trial court which specific objectionable venire member or members remained on the jury list, he has failed to preserve this complaint for our review.” Luo v. Levy, No. 02-17-00418-CV, 2018 Tex. App. LEXIS 7730, at *2-3 (Tex. App.—Fort Worth Sep. 20, 2018)

Your complaint has to comply with the pertinent rules:


Factual Sufficiency: “In her first, second, third, and fourth issues, J.T. contends that the evidence is factually insufficient to support the jury’s findings that her parental rights to Z.T., E.B., and P.B. should be terminated pursuant to subsections (D), (E), (N), and (O) of Texas Family Code Section 161.001(b)(1). A point in a motion for new trial is a prerequisite to a complaint of factual insufficiency of the evidence to support a jury finding. Tex. R. Civ. P. 324(b)(2);. . . . J.T. did not file a [*5] motion for new trial. Therefore, she has waived her complaint about the factual sufficiency of the evidence to support the jury’s findings.” In the Interest of Z.T., No. 12-18-00078-CV, 2018 Tex. App. LEXIS 7652, at *4-5 (App.—Tyler Sep. 19, 2018)

You have to get a ruling on your complaint:


Discovery: “Additionally, Reynolds complains in her appeal that Wellman and his attorney failed to respond to requests that she filed seeking discovery. Yet when Reynolds complained during the hearing that Wellman had failed to respond to her requests seeking discovery, the trial court told Reynolds that she had waited too long to bring any disputes over discovery to the court’s attention. Reynolds acknowledged that she had failed to complain about any discovery matters prior to the trial, and she then failed to secure a ruling on the merits of any of her pre-trial motions. We hold that the complaints that Reynolds advances in issue two were not properly preserved for our review on appeal. See Tex. R. App. P. 33.1.” Reynolds v. Wellman, No. 09-17-00459-CV, 2018 Tex. App. LEXIS 7714, at *3 (Tex. App.—Beaumont Sep. 20, 2018)

Limitations: “On appeal, Cavazos argues in part that the trial court erred if it granted summary judgment on these grounds because Stryker “fail[ed] to affirmatively plead a statute of limitations defense within all applicable deadlines.” We agree. Limitations is an affirmative defense which must be pleaded, or is waived. Tex. R. Civ. P. 94; Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 155 (Tex. 2015). Stryker concedes that it did not plead a limitations defense in its original answer, but it argues that the trial court granted it leave to file an amended answer to include that defense. The record contains a “Motion for Leave to Amend Answer” filed by Stryker but it does not contain an explicit ruling on that motion, and it does not reflect that [*27] an amended answer was ever actually filed. Accordingly, Stryker waived the defense.

The dissent argues that the limitations issue was tried by consent, and it suggests that Cavazos waived her appellate complaint regarding this defense because the record contains no written response by Cavazos to Stryker’s supplemental summary judgment motion. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991) (holding  in the summary judgment context that “[t]he party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal”). But trial by consent is intended to cover only the “exceptional” case in which it “clearly appears from the record as a whole that the parties tried the unpleaded issue”; it “should be applied with care” and “is not intended to establish a general rule of practice.” Guillory v. Boykins, 442 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.); In re A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.); Greene v. Young, 174 S.W.3d 291, 301 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Here, Stryker first attempted to raise the limitations defense in its motion for leave to amend its answer, filed on September 28, 2016, which was after the initial summary judgment hearing. At the November 8, 2016 hearing, Cavazos’s counsel specifically complained that Stryker “never indicated ever in any [*28] pleading, in any discovery request, in any request for disclosure that they were gonna assert” the limitations defense. This is not an “exceptional” situation warranting application of the trial-by-consent doctrine. See Guillory, 442 S.W.3d at 690; cf. Roark, 813 S.W.2d at 495 (“Because Roark failed to direct the trial court’s attention to the absence of the pleading in his written response or before the court rendered judgment, this complaint may not be raised on appeal.”).” Cavazos v. Stryker Sales Corp., No. 13-17-00247-CV, 2018 Tex. App. LEXIS 7228, at *26-28 (Tex. App.—Corpus Christi Aug. 31, 2018)

Special Exceptions: “Special exceptions are used to challenge a defective pleading. See Tex. R. Civ. P. 91. Failure to obtain a timely hearing and a ruling on special exceptions waives the exceptions and does not preserve them for appeal. McAllister v. Samuels, 857 S.W.2d 768, 773 (Tex. App.—Houston [14th Dist.] 1993, no writ) (appellants asserted [*13] that the trial court erred by “entering a final judgment without ruling on, or even considering,” their special exceptions; appellants waived error on this point because the record did not show that appellants obtained a hearing and a ruling on their special exceptions). The appellate record does not show that James requested a hearing on his special exceptions, or that a hearing was held or a ruling obtained. James did not preserve this issue for appeal.” Davis v. Angleton Indep. Sch. Dist., No. 14-17-00692-CV, 2018 Tex. App. LEXIS 7467, at *12-13 (App.—Houston [14th Dist.] Sep. 11, 2018)

Summary Judgment Evidence: “Next, Furmanite, Galbraith, and Southcross argue that we cannot consider Lisa’s supplemental affidavit in this appeal because they claim it is a “sham affidavit.”. . . . On appeal, Furmanite [*7] asserts that its sham affidavit objection “was implicitly sustained by the trial court.” Nothing in the record indicates the trial court ruled on Furmanite’s sham affidavit objection. “Absent a timely objection and a ruling from the trial court, the complaint that a summary-judgment affidavit is a sham is waived for purposes of appellate review.” In re T.A.D., No. 14-16-00717-CV, 2017 Tex. App. LEXIS 1864, 2017 WL 924550, at *5 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.). Furthermore, objected-to evidence is valid summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017). No such order appears in the record.” Martinez v. Furmanite Am. Inc., No. 04-17-00318-CV, 2018 Tex. App. LEXIS 7642, at *6-7 (Tex. App.—San Antonio Sep. 19, 2018)

The complaint you raise on appeal must be the same complaint you raised at trial:


Dismissal: “In her sixth issue, Stacey argues that the trial court erred by not giving her the opportunity to take discovery and by converting a non-evidentiary hearing into [*14] a pretrial evidentiary hearing without proper notice. As support for this issue, she similarly asserts that Richard’s motion to dismiss was limited to a challenge to her pleadings and, therefore, that she did not have notice that she would have to present evidence. Stacey, however, did she raise this argument with the trial court. See Tex. R. App. P. 33.1(a) . . . When the trial court advised Stacey that it was her “burden on the [Rule 91a] motion to dismiss, to establish what is required legally for proceeding on a bill of review” and then told her that he would hear from her as to evidence, Stacey stated to the trial court that she was not prepared to present evidence because she had been advised by an attorney that evidence was not considered with a Rule 91a motion. The trial court then further explained her burden to make a “prima facie showing” on the alternative ground. In response, Stacey requested a continuance “so that [she] could hire counsel for an evidentiary hearing,” but she did not raise the argument that she raises on appeal that Richard’s motion to dismiss was limited to a challenge on the pleadings. Thus, she has waived this issue for our review. See Tex. R. App. P. 33.1(a).” Hammer v. Hammer, No. 03-18-00028-CV, 2018 Tex. App. LEXIS 7574, at *13-15 (Tex. App.—Austin Sep. 18, 2018)

Then, there were the usual spate of cases in which the party failed to raise the complaint in the trial court at all.

I hope this helps.  Y’all take care.


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.

Scroll to Top