Error Preservation in Texas Civil Cases, September 30, 2019

Dear All:

There were not a lot of error preservation decisions last week–not unusual for this time of year.

Table of Contents


The Blurbs

A complaint about the lack of subject matter jurisdiction-such as a complaint that the trial court did not try a SAPCR before the dismissal deadline, nor properly extend that deadline-may be raised for the first time on appeal, and a party cannot consent to the lack of subject matter jurisdiction nor waive a complaint about it:


Jurisdiction: “The thrust of the Department’s argument is that any complaint concerning the deadline is waived or estopped. But with the repeal of section 263.402(b), dismissal is jurisdictional, and jurisdiction may not be conferred by waiver or estoppel. Tex. Fam. Code Ann. §§ 263.401(a), (b), .402; see In re Crawford & Co., 458 S.W.3d 920, 928 n.7 (Tex. 2015) (orig. proceeding) (per curiam) (estoppel); Tellez v. City of Socorro, 226 S.W.3d 413, 414 (Tex. 2007) (per curiam) (waiver); Comptroller v. Landsfeld, 352 S.W.3d 171, 174 (Tex. App.—Fort Worth 2011, pet. denied) (both). Subject-matter [*29] jurisdiction is a power that exists by operation of law only, and it cannot be conferred upon any court by consent or waiver. Crawford, 458 S.W.3d at 928 n.7. And even if invited error or estoppel would otherwise bar Mother and Father’s complaints, we are required to review sua sponte issues affecting jurisdiction. In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per curiam); see Gore v. Gore, No. 05-13-01025-CV, 2014 Tex. App. LEXIS 2971, 2014 WL 1018650, at *1 (Tex. App.—Dallas Mar. 17, 2014, no pet.) (mem. op.) (reviewing jurisdiction sua sponte even where appellant’s complaint concerning jurisdiction would otherwise be precluded by estoppel); Castle & Cooke Mortg., LLC v. Diamond T Ranch Dev., Inc., 330 S.W.3d 684, 687 (Tex. App.—San Antonio 2010, no pet.) (rejecting argument that estoppel barred appellate court from considering jurisdiction). Accordingly, we need not decide whether Mother’s and Father’s actions constitute invited error or a basis for estoppel because, even if they did, “such doctrines cannot create subject-matter jurisdiction where it does not otherwise exist.” See Crawford, 458 S.W.3d at 928 n.7.” In re A.F., No. 02-19-00117-CV, 2019 Tex. App. LEXIS 8563, at *28-29 (Tex. App.—Fort Worth Sep. 24, 2019)

You can also raise a no evidence complaint as to an expert’s testimony in a bench trial for the first time on appeal–an especially important point on a fight about attorney’s fees:


Expert Witness (Attorneys’ Fees): “Although not included in his list of issues presented, Wilson also argues that the trial court erred in admitting the testimony of Daniel Kirschbaum, Henderson’s expert witness, that Henderson’s fees were reasonable. When Henderson called Kirschbaum to testify at trial, Wilson objected that Kirschbaum’s testimony did “not meet any of the Daubert/Robinson factors,” “fails the Gammill test,” and improperly relied on Henderson’s testimony. He also objected that Kirschbaum’s affidavit lacked specificity, although as the trial court noted, he had agreed to its admission into evidence. The court explained to Wilson, “if you have an objection that [a] certain opinion offered by him lacks foundation as those opinions are being elicited, the Court will receive your objection and rule upon it.” Wilson, however, did not make any such objection to Kirschbaum’s direct testimony. Consequently, we construe Wilson’s argument on appeal [*17] as a no-evidence complaint. See Reisler v. Reisler, 439 S.W.3d 615, 623 (Tex. App.—Dallas 2014, no pet.) (party who did not object to expert’s testimony at trial may argue on appeal that expert’s testimony constitutes no evidence and is mere conclusion); see also TEX. R. APP. P. 33.1(d) (in civil nonjury case, complaint regarding legal or factual sufficiency of evidence may be made for first time on appeal).” Wilson v. Henderson, No. 05-18-00714-CV, 2019 Tex. App. LEXIS 8606, at *16-17 (Tex. App.—Dallas Sep. 24, 2019)

One opinion held that a TCPA motion to dismiss was sufficiently specific to put the TCPA into play. I’ve copied all of that discussion here so you could have the benefit of it:


Texas Citizen’s Participation Act:

3. Soleil’s argument that Rogers and RRK did not preserve error fails.

Soleil’s appellate brief makes no substantive argument challenging the application of the TCPA. Instead, it challenges the form of Rogers’s and RRK’s motions to dismiss, claiming that the motions presented only one sentence of argument that the TCPA applied to Soleil’s suit and that Rogers and RRK did not fully develop that argument until filing a reply to Soleil’s response. We are unpersuaded.

Initially, Soleil does not tell us why the motions were deficient. Both motions contain similar grounds. Though not elaborate, the allegations make the basic point of which TCPA right Rogers and RRK are invoking and why they contend that right protects them:

The pleadings on file and the supporting affidavit(s) show by a preponderance of the evidence that Plaintiff’s causes of action [for] slander, libel, defamation of character, intentional infliction of emotional distress, interfering with economic benefit[,] and fraud[] are based [on] Defendant’s exercise of his First Amendment . . . right of free speech as defined in Texas Civil Practice and Remedies Code § 27.001 and demonstrate that Plaintiff has failed to establish by clear and specific [*16] evidence a prima facie case for each essential element of Plaintiff’s claim(s). Richard Rogers has exercised his First [A]mendment rights to speak out against a good, product, or service in the marketplace[,] which is a matter of public concern under Tex. Civ. Prac. & Rem. Code [Ann.] § 27.001(7)(E)[.] [Emphasis added.]

Though not artful in their description of Soleil’s claims, Rogers and RRK’s grounds communicate the basic premise of a motion to dismiss: the TCPA applies because Rogers and RRK were exercising a TCPA-defined right of free speech.

Nor does Soleil cite any case suggesting that the motions’ grounds are deficient. In fact, Soleil cites only two federal cases for the irrelevant proposition that arguments raised for the first time in a reply are untimely:  Gillaspy v. Dallas Ind. Sch. Dist., 278 [F. App’x] 307, 315 (5[th] Cir. 2008) (“It is the practice of this court and the district courts to refuse to consider arguments raised for the first time in reply briefs[.”]); Springs Indus. Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 238, 240 (N.D. Tex. 1991).

Soleil’s failure to cite cases that support its position is understandable as the caselaw is contrary to its argument. First, the supreme court has warned the courts of appeals not to be “too strict” in their application of [*17] error-preservation principles in TCPA cases. See Adams, 547 S.W.3d at 896-97. In Adams, a party’s mentioning the nature of the public concern at a TCPA-motion-to-dismiss hearing preserved error. Id. The supreme court buttressed this holding with the concept that we have already mentioned: “the unique language of the TCPA directs courts to decide its applicability based on a holistic review of the pleadings.” Id. at 897. Adams instructs that while conducting a de novo review, it is our role to decide, as a matter of law, whether the petition is based on or related to a matter of public concern and not to become mired in a microscopic analysis of error preservation:

We have not previously cabined our TCPA analysis to the precise legal arguments or record references a moving party made to the trial court regarding the TCPA’s applicability. Our focus instead has been on the pleadings and on whether, as a matter of law, they are based on or relate to a matter of public concern.

Id.; see also Morrison, 578 S.W.3d at 681 (holding that motion to dismiss—which stated conclusory allegation that suit involved a matter of public concern because its statements concerned goods, products, or services in the marketplace—preserved error because “to determine the [*18] basis of a legal action for purposes of the first step in the dismissal procedure, it is necessary to consider the plaintiff’s petition, which is ‘the “best and all-sufficient evidence of the nature of the action”‘” (quoting Hersh, 526 S.W.3d at 467)). The grounds recited in Rogers’s and RRK’s motions to dismiss are not elaborate, but they certainly raise an issue that is our responsibility to determine as a matter of law: does the TCPA apply to the allegations in Soleil’s petition?”

Richard Rogers & Rrk Real Estate Invs. & Holdings v. Soleil Chtd. Bank, No. 02-19-00124-CV, 2019 Tex. App. LEXIS 8679, at *15-18 (Tex. App.—Fort Worth Sep. 26, 2019)

There were a few cases in which the parties failed to raise the complaint in the trial court.

Y’all take good 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.

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