September 18, 2021
I think this catches me up for the last couple of weeks, at least until next Saturday. 🙂
Table of Contents
Here is a case that reminds us that getting the trial judge to comment on our complaint preserves the complaint
It is important to ask for a running objection to evidence
One court pointed out that failing to answer a lawsuit does not, in and of itself, waive a complaint as to part of a no-answer default judgment that was properly set aside on a motion for new trial
Here is a case that shows the need to get a trial court’s ruling on objections, and what qualifies to such a ruling–as well as emphasizing the need for you to complain about the trial court’s refusal to rule if you think it has so refused
Discovery/Failure to Rule?
Remember, in a case involving a trial to the court, a legal sufficiency complaint can first be raised on appeal
You have to complain about a trial court’s failure to make findings–and a trial court does not make findings just by circulating a draft of the same for comment or suggestions
Findings of Fact
Your complaint must be timely–often a function of complying with other pertinent rules or statutes
While I won’t profile them here, opinions this week reaffirmed that you must make complaint about the following in the trial court (email me if you want to see any of these blurbs)
Here is a case that reminds us that getting the trial judge to comment on our complaint preserves the complaint:
Waiver: “We conclude that the trial court ruled that Momentum did not waive its right to seek dismissal [under TCPRC Section 150.002, for lack of a certificate of merit regarding the alleged negligent design of a fiberglass cover]. While it does appear, at first, that the trial court was not inclined to rule on the issue of waiver, after Gonzalez pressed the issue, the court stated that “there is no waiver” and “it wasn’t waived.” Additionally, waiver was clearly presented to the court again in the context of Gonzalez’s Motion for New Trial, where the court stated that it had reviewed [*17] the issue, as well as its intention to look at the matter again. Then the trial court signed an order denying the Motion for New Trial. These circumstances evidence a ruling by the trial court concluding that Momentum did not waive its right to dismissal under Section 150.002. Tex. R. App. P. 33.1(a)(2)(A) (recognizing ruling may be express or implicit)….As stated above, Gonzalez raised the issue of waiver in its response to Momentum’s Motion to Dismiss. Although when giving a preliminary oral ruling on the Motion to Dismiss, the trial court appeared to indicate that it was not ruling on the issue of waiver, when pressed by counsel for Gonzalez, the trial court stated that “there is no waiver” and “it wasn’t waived.” Also, as stated above, it is undisputed that the issue was raised in Gonzalez’s Motion for New [*18] Trial, which the trial court denied by written order. We determine that the denial of Gonzalez’s Motion for New Trial included an implicit ruling on the waiver issue in favor of Momentum, which was consistent with the trial court’s ruling on Momentum’s Motion to Dismiss. As a result of the foregoing, we determine that Gonzalez’s waiver argument was preserved for appellate review.” Gonzalez v. Momentum Design & Constr., Inc., No. 08-19-00004-CV, 2021 Tex. App. LEXIS 7510, at *16-17 (Tex. App.—El Paso Sep. 9, 2021)
It is important to ask for a running objection to evidence:
Evidence: “Julie also argues that the statement that K.H. was forced to urinate in a cup to use for drug tests for Julie and others and that Julie got angry when she failed a drug test using K.H.’s urine did not constitute abuse or neglect and was therefore inadmissible pursuant to Section 104.006. To the degree that Julie complains of the answer about being angry because she failed a test using K.H.’s urine, we find that this complaint was not preserved because Julie did not object to its admission. The question and answer were given after Julie’s objection to the prior question regarding providing specimens was overruled, but Julie did not ask for a running objection to this line of questioning. Because Julie did not object to the response to this question, this portion of the issue has been waived. See Tex. R. App. P. 33.1(a).” In the Interest of K.H., No. 10-21-00073-CV, 2021 Tex. App. LEXIS 7457, at *6 (Tex. App.—Waco Sep. 8, 2021)
One court pointed out that failing to answer a lawsuit does not, in and of itself, waive a complaint as to part of a no-answer default judgment that was properly set aside on a motion for new trial:
Default Judgment: “Composite Solutions asserts that CAT’s default waived its right to challenge the award of attorney’s fees and, because CAT failed to satisfy the Craddock factors to obtain a new trial, it could not raise its challenge to the imposition of attorney’s fees. These arguments, however, ignore the nature of the proceedings here and of default judgments generally….In its original petition, Composite Solutions sought attorney’s fees against [*5] CAT—accurately identified in the petition as a limited liability company—pursuant to Civil Practice and Remedies Code section 38.001. Section 38.001, however, does not authorize the recovery of attorney’s fees in a breach-of-contract action against a limited liability company.1 See Tex. Civ. Prac. & Rem. Code § 38.001; ….As a matter of law, the facts pled by Composite Solutions did not support the award of attorney’s fees against CAT, and CAT’s failure to answer cannot create such liability. ….Thus, the facts pled by Composite Solutions affirmatively disclosed the invalidity of its claim for attorney’s fees, and there was error in the original default judgment on the face of the record.” Composite Sols., LLC v. Composite Advanced Techs. LLC, No. 01-20-00413-CV, 2021 Tex. App. LEXIS 7475, at *3-5 (Tex. App.—Houston [1st Dist.] Sep. 9, 2021)
Here is a case that shows the need to get a trial court’s ruling on objections, and what qualifies to such a ruling–as well as emphasizing the need for you to complain about the trial court’s refusal to rule if you think it has so refused:
Discovery/Failure to Rule?: “In her second and third issues, Adrienne complains that the probate court erred by refusing to rule on Adrienne’s motions to strike evidence and evidentiary objections. Ronald contends that Adrienne waived her evidentiary complaints by failing to obtain a ruling from the probate court.
To preserve error for appeal, the record must show that (1) a party complained to the trial court by way of a timely request, objection, or motion; and (2) the trial court ruled or refused to rule on the request, objection, or motion. Tex. R. App. P. 33.1(a); ….If the trial court refused to rule on the request, objection, or motion, the record must show that the complaining party objected to the refusal. Tex. R. App. P. 33.1(a)(2)(B).
The record shows that Adrienne objected to Ronald’s evidence in three different motions to strike. Her objections to Ronald’s evidence were based on untimeliness, hearsay, conclusory statements, authentication, lack of foundation, unreliable, or irrelevant. The probate court had not ruled on Adrienne’s motions or written objections before the October 2020 hearing. The record shows that Adrienne’s counsel requested [*17] a ruling on her previous objections and motions. The probate court responded, “Okay. Anything else you’d like to add?” Adrienne’s counsel responded, “No.”
At the December 2020 hearing, Adrienne’s counsel repeated her initial request to the court and asked for a written ruling on her pending objections and motions to strike. She then spent a great deal of time explaining each of her motions and objections. At the end of the hearing, the trial court responded to the parties’ arguments:
I feel like the discovery should be allowed. It was allowed back when we went through this and back in October. And so, it was extended; and we went through it. As far as that, that discovery is allowed.
Adrienne’s counsel once again requested the probate court to issue a signed, written order on her objections, and the probate court responded, “Okay.”
Based solely on the record before us, no evidence supports Adrienne’s contention that the trial court refused to rule on her objections and motions to strike Ronald’s evidence. Even if these two instances constitute the court’s refusal to rule, Adrienne had the obligation to object to the court’s refusal. See Tex. R. App. P. 33.1(a)(2)(B) (requiring a showing that “the complaining party [*18] objected to the refusal” to preserve error for appeal). She did not do so. Thus, Adrienne did not preserve her complaint that the trial court erred by failing to rule on her objections and motions to strike Ronald’s evidence.” Bibby v. Bibby, No. 01-21-00007-CV, 2021 Tex. App. LEXIS 7576, at *16-18 (Tex. App.—Houston [1st Dist.] Sep. 14, 2021)
Remember, in a case involving a trial to the court, a legal sufficiency complaint can first be raised on appeal:
Legal Sufficiency: “On appeal, C.G.B. again does not argue that he was statutorily entitled to expunction, but he now argues that DPS waived the issue by not objecting to the trial court’s failure to address [*14] it at the hearing on the motion for new trial. We disagree. In a civil nonjury case, a complaint regarding the sufficiency of the evidence may be made for the first time on appeal in the complaining party’s brief.” Ex parte C.G.B., No. 12-20-00169-CV, 2021 Tex. App. LEXIS 7615, at *13-14 (Tex. App.—Tyler Sep. 15, 2021)
You have to complain about a trial court’s failure to make findings–and a trial court does not make findings just by circulating a draft of the same for comment or suggestions:
Findings of Fact: “We have held that a party waives its right to challenge a failure to file findings if the party does not file a notice of past due findings as Rule 297 requires….If the trial court fails to file findings in response to a proper and timely request, the court of appeals must presume the trial court made all the findings necessary to support the judgment….The record does not show that the trial court filed timely findings [*7] of fact and conclusions of law, it merely sent a draft of same to the parties for comment or suggested edit. We have reviewed the file, and as a matter of law, no findings of fact or conclusions of law were filed by the court with the district clerk pursuant to Rule 297. Importantly, however, as discussed below, we have a full transcription of the bench trial for our review.
Appellant cites Kendrick v. Garcia, 171 S.W.3d 698 (Tex. App.—Eastland 2005, pet. denied), in which we held that a letter ruling issued by the trial court constituted a final version of findings and conclusions, and argues that Kendrick is analogous to the case before us now. In Kendrick, however, we held that the trial court stated its intent that we rely on the letter as the trial court’s findings and conclusions. 171 S.W.3d at 701. The case presently before us is distinguished by the lack of express or implied intent by the trial court that we rely on the “draft” version of the court’s findings and conclusions as final. See Evans v. Smith, No. 11-04-00263-CV, 2006 Tex. App. LEXIS 401, 2006 WL 133701 (Tex. App.—Eastland Jan. 19, 2006, no pet.) (mem. op.). Here, the trial court referred to the findings and conclusions as a “draft” and expressed a willingness to consider changing or altering that initial version e-mailed to each party; the trial court had not signed and did not file the document. Therefore, we disagree with Appellant’s [*8] contention that this case is similar to Kendrick and agree with Meneses’s assertion that we cannot consider the “draft” Findings of Fact and Conclusions of Law to be the trial court’s final product or decisions on those matters. Thus, on appeal the trial court’s judgment implies all findings necessary to support it.” W. Tex. Landscape, Inc. v. Meneses, No. 11-19-00371-CV, 2021 Tex. App. LEXIS 7659, at *6-8 (Tex. App.—Eastland Sep. 16, 2021)
Your complaint must be timely–often a function of complying with other pertinent rules or statutes:
Dismissal: “Here, the trial court held a hearing on the MSA and the resulting Final Order on September 20, 2018. The testimony reflected that the parties agreed to an MSA, that the Department would be appointed permanent managing conservator of the children, that the parents would be appointed possessory conservators, and that an order reflecting their agreement would be drafted for the trial court. We conclude that the trial on the merits commenced on September 20, 2018….M.S. filed her motion to dismiss on April 28, 2021, approximately two and a half years after the Final Order was filed on October 29, 2018. From this evidence, M.S. did not file a timely motion to dismiss under Section 263.402 and has waived her right to object to the trial court’s failure to dismiss the suit. See Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 3, sec. 263.402(b), 2007 Tex. Sess. Law Serv. 1837, 1838 (amended 2017)….Further, if the Final Order was temporary, M.S. again failed to file a timely motion to dismiss under Section 263.402 and has waived her right to object to the trial court’s failure to dismiss the suit.” In the Interest of C.D., No. 12-21-00045-CV, 2021 Tex. App. LEXIS 7617, at *21-22 (Tex. App.—Tyler Sep. 15, 2021)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
email@example.com; 817/371-8759; www.stevehayeslaw.com