Error Preservation in Texas Civil Cases, September 5, 2020

September 5, 2020

Dear All:

Welcome to a new (fiscal) year for the Texas appellate courts!  Typically, the first couple of weeks of the new fiscal year do not see a lot of error preservation decisions, but not so this year.  I suspect that’s related to a smaller number of appellate filings for last year (as reported by Texas Lawyer recently), and that meaning that many courts did not have to–and in fact could not–produce as many opinions as normal last year and still fall within the 95-105% clearance-rate window that the Legislature allows them before requiring a report to explain their deviation from that 10-point range.  Hence, some cases were close to completion at the end of last year, but did not issue until this year.  But that’s just speculation on my part, which is worth about what you pay for it.

Let’s get on to the cases.

Table of Contents

One case signaled a potential split among the courts of appeals:  the Forth Worth Court says that a lack of an affiant’s signature is a defect of form which you must raise in the trial court. Other courts of appeals have concluded that a lack of affiant’s signature was a substantive defect which could first be raised on appeal.  Having said that, never fail to object to the lack of an affiant’s signature in the trial court.  You don’t want to serve as the test case that breaks the logjam, or in which SCOTX says “actually, in Mansions we intended to say that lack of an affiant’s signature is a formal defect to which you must object.”

A trial court’s lack of subject matter jurisdiction can first be raised on appeal

You must make your complaint in a timely fashion

Attorney Ad Litem
Evidence

Your complaint must be specific enough–and when the trial court imposes a time limit on voir dire, that means you have to put in the record the questions you would have asked

Summary Judgment

Texas Citizens Participation Act
Voir Dire

The Blurbs

Here is potentially a split among the courts of appeals: the Forth Worth Court says that a lack of an affiant’s signature is a defect of form which you must raise in the trial court. Other courts of appeals have concluded that lack of affiant’s signature was a substantive defect which could first be raised on appeal. See Gonzalez v. Grimm, 353 S.W.3d 270, 274 (Tex. App.—El Paso 2011, no pet.) (overruled in part, Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012)) , and cases cited therein.  In any event-never fail to object to the lack of an affiant’s signature in the trial court.  You don’t want to serve as the test case that breaks the logjam:

Affidavits: “Loll’s affidavit lacks his and the notary’s actual signatures. Instead, Loll “signed” the affidavit “/s/A.J. Loll,” and Niki Storey, the notary, [*13] “signed” the jurat “/s/ Niki Storey.” The jurat also lacks Storey’s notarial seal. The Texas Government Code defines “affidavit” as “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011(1). An instrument that does not meet these requirements is not an affidavit. See Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 316-17 (Tex. 2012). A defect in a purported affidavit that renders it noncompliant with the Government Code is a formal defect. See id. at 317. Failure to object to a formal defect in a summary-judgment affidavit waives any appellate complaints regarding that defect. See Tex. R. Civ. P. 166a(f); Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163-64 (Tex. 2018); see also Tex. R. App. P. 33.1(a)(1). Here, Grady did not complain in the trial court about the Loll affidavit’s failure to satisfy the Government Code’s requirements. She thus failed to preserve her complaints for appeal. See Seim, 551 S.W.3d at 162-63, 166 (concluding that lack of notary’s signature was a formal defect that had to be objected to and ruled on by the trial court to preserve error); Mansions in the Forest, 365 S.W.3d at 317 (holding that because record lacked any indication that purported affidavit was sworn to by the affiant, the instrument was not an affidavit under Government Code Section 312.011(1), but [*14] that complaint had to be raised in the trial court to be raised on appeal); Bray v. Fuselier, 107 S.W.3d 765, 769 (Tex. App.—Texarkana 2003, pet. denied) (“The lack of a notary’s seal is a defect in form.”).” Grady v. Nationstar Mortg., LLC, No. 02-19-00006-CV, 2020 Tex. App. LEXIS 7204, at *12-14 (Tex. App.—Fort Worth Sep. 3, 2020)

A trial court’s lack of subject matter jurisdiction can first be raised on appeal:

Subject Matter Jurisdiction: “The Church and Williams first contend the trial court erred by overruling the two pleas to the jurisdiction because the amount in controversy exceeds $250,000.00. . . . Bowers’s arguments to the contrary are not persuasive. He first contends that the appellants waived this issue by failing to present it to the county court. But the Church and Williams each squarely presented this issue to the county court in their respective pleas to the jurisdiction and, regardless, jurisdiction is never presumed and cannot be waived.” Magnolia Christian Church v. Bowers, No. 03-19-00433-CV, 2020 Tex. App. LEXIS 7156, at *3-6 (Tex. App.—Austin Sep. 3, 2020)

Subject Matter Jurisdiction (Receivership): “In his sole issue, Marvin asserts that the trial court abused its discretion by entering the order appointing a receiver. However, an issue has arisen in the briefs that have been filed on appeal concerning the trial court’s jurisdiction to enter the receivership order. As set forth below, we conclude that this jurisdictional issue is dispositive. Accordingly, we do not reach Marvin’s issue that challenges the receivership order on the merits. Subject-matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Subject-matter jurisdiction is never presumed and cannot be waived. Id. at 443-44. Subject-matter jurisdiction is an issue that may be raised for the first [*6] time on appeal. Id. at 445. Because subject-matter jurisdiction is a question of law, we review it de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).” In re Estate of Hallmark, No. 11-18-00187-CV, 2020 Tex. App. LEXIS 7063, at *5-6 (Tex. App.—Eastland Aug. 31, 2020)

You must make your complaint in a timely fashion:

Attorney Ad Litem: “Generally, we will not consider errors not timely raised in the trial court. Tex. R. App. P. 33.1(a). Although father contends he preserved his objection to the trial court’s failure to appoint an ad litem by raising it in his motion for new trial, we disagree. Any conflict between mother’s interests and the children’s which precluded mother from adequately representing the children’s interests was present from the inception of the case. Thus, father’s objection raised after trial was untimely and failed to preserve the error, if one existed.” In re A.E.J., No. 05-20-00340-CV, 2020 Tex. App. LEXIS 7096, at *28 (Tex. App.—Dallas Aug. 31, 2020)

Evidence: “Miranda-Lara sought to exclude the police report of the accident and the officer’s testimony through a motion in limine. After hearing arguments from both sides, the trial court overruled Miranda-Lara’s motion in limine and allowed the officer to testify as a lay witness. Miranda-Lara was required to repeat his objections or obtain a running objection from the court regarding the unacceptable evidence that made clear the scope of the objection. Compare [*5] with U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 131-132 (Tex. 2012) (stating that although the trial court denied a running objection, the appellant “timely objected” a total of 12 times on the grounds of relevance, hearsay, and lack of similarity through the witnesses direct examination, properly preserving error for appellate review). Generally, if an objecting party subsequently permits the same or similar evidence to be introduced at trial, the party waives error and the testimony is deemed harmless. Volkswagen, 159 S.W.3d at 907; Atkinson, 878 S.W.2d at 242. Miranda-Lara did not request a running objection. Officer Daws was allowed to testify repeatedly without objection that Miranda-Lara was passing unsafely on the left and caused the accident. Accordingly, we conclude that Miranda-Lara failed to timely object to the evidence and, therefore, failed to preserve error. We do not reach Appellant’s first issue.” Miranda-Lara v. Rebert, No. 09-18-00325-CV, 2020 Tex. App. LEXIS 7001, at *4-5 (Tex. App.—Beaumont Aug. 31, 2020)

Venue: “Sewell also asserts that the Titus CCL erred in transferring venue because Sewell requested that the suit remain in Titus County for the convenience of witnesses and in the interest of justice under Section 15.002(b) of the Texas Civil Practice & Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(b). But the record shows that Sewell only made this request in his Plaintiff’s Response By Submission to Plaintiff’s Motion to Set Aside Order Transferring Venue, which was not filed in the Titus CCL until after that court had lost plenary jurisdiction of the case. HN9 To preserve an error for appellate review, the record must show, among other things, that “the complaint was made to the trial court by a timely request, objection, or motion.” Tex. R. App. P. 33.1(a)(1). Because Sewell’s request was not made until after the Titus CCL had lost jurisdiction, his request was untimely. As a result, he has not preserved this complaint for our review.” Sewell v. Brock, No. 06-20-00009-CV, 2020 Tex. App. LEXIS 7122, at *12 (Tex. App.—Texarkana Sep. 2, 2020)

Your complaint must be specific enough–and when the trial court imposes a time limit on voir dire, that means you have to put in the record the questions you would have asked:

Texas Citizens Participation Act: “While Dunbar did make statements in the trial court that purported to concede the threshold applicability of the TCPA, he also made other conflicting statements that challenged that notion. For example, at the hearing on the motion to dismiss, Dunbar’s trial counsel stated:

The purpose of the TCPA, as we’ve gone over, is both to safeguard the constitutional rights concerning government participation and balance that with right to file meritorious lawsuits.

RubyAnne’s statements and conduct here are not about its constitutional rights. They’re about RubyAnne’s duty to perform under the contract that both parties concede exists.

That being the case, I don’t think this is the sort of lawsuit that the TCPA intended [*8] to address. I don’t think the TCPA applies to this. . . .

. . . .
We reject the various arguments that a challenge to the applicability of the TCPA has been waived. Dunbar challenged the applicability of the TCPA in the trial court, arguing that his claims are based on the failure of RubyAnne Designs to perform under the contract, not its exercise of constitutional rights, and we will now consider that argument for its substantive merit.” Dunbar v. Rubyanne Designs, LLC, No. 08-19-00251-CV, 2020 Tex. App. LEXIS 7064, at *7-9 (Tex. App.—El Paso Aug. 31, 2020)

Voir Dire: “Regarding the remaining areas of inquiry, while they may be proper topics for voir dire, Appellant’s lack of time to ask questions in those other areas is not necessarily the result of an improper time limit. See Whitaker v. State, 653 S.W.2d 781, 782 (Tex.Crim.App. 1983)(acknowledging a skilled attorney can always find additional topics of inquiry for questioning the jury, and inability to ask all such questions is not necessarily the result of an unreasonable time limitation). Without knowing specifically what questions Appellant intended to ask the venire members, we cannot adequately assess whether they would be relevant to determining the proclivities of potential jurors which could subject them from being stricken. See S.D.G. v. State, 936 S.W.2d 371, 380 (Tex.App.–Houston [14th Dist.] 1996, writ denied)(failure to submit specific questions to be asked of the panel, rather than broad subject matters, fails to preserve error for appeal).” Yanez v. Hernandez, No. 08-19-00055-CV, 2020 Tex. App. LEXIS 7060, at *21 (Tex. App.—El Paso Aug. 31, 2020)

There were a few other decisions, some of which held parties failed to preserve complaints by not raising them in the trial court.

Y’all stay safe and well, and have a good weekend.

Yours,

Steve Hayes

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

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