Error Preservation in Texas Civil Cases, September 26, 2020

September 26, 2020

Dear All:

It seems that Fall is upon us, or at least we seem to have started moving firmly in that direction (at least in the northern half of the state).  I’ll know it for sure when my red oaks start changing colors.

In the meantime, here is this week’s offering.

Table of Contents

One case held that a post-summary judgment motion to reconsider, which requests a ruling on a motion to compel, preserves a complaint about the trial court refusing to rule on the motion to compel

You must comply with other pertinent rules–and make sure you bring your complaint to the trial court’s attention

Additional Evidence
Summary Judgment

The Blurbs

Here is a case in which the court of appeals held that a post-summary judgment motion to reconsider, which requests a ruling on a motion to compel, preserves a complaint about the trial court refusing to rule on the motion to compel:

Discovery: “The record reveals that after the trial court granted the BCA’s summary judgment, Marteny filed a motion to reconsider. In that motion, Marteny pointed out that the trial court refused to rule on the motion to compel before ruling on the summary judgment and requested an explicit ruling on the motion to compel and production of an adequate privilege log. Therefore, Marteny preserved his complaint regarding the trial court’s refusal to rule on his motion to compel. See Tex. R. App. P. 33.1(a).” Marteny v. Coon, No. 09-19-00019-CV, 2020 Tex. App. LEXIS 7702, at *21 n.12 (Tex. App.—Beaumont Sep. 24, 2020)

You must comply with other pertinent rules–and make sure you bring your complaint to the trial court’s attention:

Additional Evidence: “Father is essentially asserting that the trial court failed to consider additional evidence. While Father filed a post-verdict motion to present additional evidence, the motion only sought to present evidence of post-verdict conduct on the part of Mother. Father did not point out in the motion that the trial court needed to receive any additional evidence that Father had indicated that he wanted to present when he rested and closed. Afterwards, Father did not file a motion for new trial identifying [*18] any additional evidence that he wanted the trial court to consider in rendering its order on possession, access, and support.

Rule 324(b)(1) of the Texas Rules of Civil Procedure requires that certain complaints must be raised in a motion for new trial in order to be preserved for appellate review, including a complaint on which evidence must be heard. TEX. R. CIV. P. 324(b)(1); . . . We conclude that Father did not preserve for appellate review his complaint that the trial court failed to receive additional evidence. See Tex. R. App. P. 33.1(a); Holden v. Holden, 456 S.W.3d 642, 649 (Tex. App.—Tyler 2015, no pet.) (A motion for new trial is a prerequisite under Rule 324(b)(1) for a complaint that the trial court should have allowed the submission of additional evidence.). Simply put, Father had the opportunity to present the additional evidence that he might have wanted the trial court to consider, but he did not do so. We overrule Father’s first issue.” J.M.H., No. 11-19-00061-CV, 2020 Tex. App. LEXIS 7753, at *17-18 (Tex. App.—Eastland Sep. 25, 2020)

Affirmative Defenses: “In arguing that the trial court failed to consider its defenses in determining the trial plan for the class action, Mosaic fails to mention that it did not amend its pleading to add those defenses until three days before the certification hearing and months after the pleading deadline had passed. Mosaic did not seek leave to amend its pleadings or otherwise inform the trial court that its trial plan should address those defenses. Mosaic cites to B.C. v. Steak N Shake Operations, 598 S.W.3d 256, 2020 WL 1482586 (Tex. 2020), to assert that we should presume the trial court had [*13] the late-filed amended pleading before it but erroneously failed to address the proposed defenses in the class-certification order. See 598 S.W.3d 256, id. at *3 (trial court’s recital in summary judgment that it considered “evidence and arguments of counsel,” without limitation, affirmatively indicated that trial court considered late-filed response and the evidence attached to it). On the contrary, the absence of language in the order addressing the proposed defenses, the pleading’s filing so close to the class-certification hearing date, and Mosaic’s failure to secure leave to file its pleading or even raise its proposed defenses at the hearing all indicate that they were not before the trial court when it signed the order and that Mosaic waived the opportunity to obtain a ruling from the trial court before it filed this interlocutory appeal. As these defenses were not properly presented to the trial court for consideration before its ruling, we do not address them, and their absence from the class-certification order does not constitute an abuse of discretion. See Tex. R. Civ. P. 33.1(a).” Mosaic Baybrook One, L.P. v. Cessor, No. 01-18-01057-CV, 2020 Tex. App. LEXIS 7666, at *12-13 (Tex. App.—Houston [1st Dist.] Sep. 22, 2020)

We will leave the cases in which parties failed to raise their complaints in the trial court for another emissary to deliver.

Y’all take good care, and enjoy the weekend.

Yours, Steve Hayes

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

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