Error Preservation in Texas Civil Cases, through February 5, 2022

February 7, 2022

Dear Friends:

Table of Contents

Here is a court holding that fundamental error exists, which can first be raised on appeal–a situation which does not happen very often


Your complaint must comply with the pertinent rules

Affirmative Defenses
Summary Judgment

Your complaint must be timely

Conflicting Jury Answers


While I won’t profile them here, opinions last week reaffirmed that you must make a complaint about the following in the trial court

Jury Charge


Here is a court holding that fundamental error exists, which can first be raised on appeal–a situation which does not happen very often:

Pleading: “The Department first argues that, even though it did not plead for the trial court to terminate Father’s parental rights to J.W., Father has failed to preserve the error. The Department then argues that the issue was tried by consent because, among other things, Father did not object to the trial after his parentage was adjudicated and witnesses testified about J.W. without objection. However, we conclude that Father was not required to preserve fundamental error, the adjudication of Father’s parentage was not sufficient to give Father notice that the Department was seeking termination of his parental rights to J.W., and nothing shows that the trial-by-consent doctrine applies in the situation before us….

To determine whether a claim was pled, we must determine whether the pleadings are adequate to state, “with reasonable certainty” and without reference to outside information, “the relief sought with sufficient information upon which to base a judgment.” In re P.M.G., 405 S.W.3d at 417 (quoting Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex. 1979)). The Department’s pleading named another man as J.W.’s father and sought to terminate his parental rights. The Department’s argument that the trial court had jurisdiction over the children, who were the subject matter of the dispute, and had personal jurisdiction over Father because of the allegations against the other children fails to consider the “total absence from the record of any notice to the appellant that the trial court was trying, considering or even contemplating termination upon any unpled statutory grounds.” In re S.R.M., 601 S.W.2d at 770. It cannot be shown that Father had notice that the Department sought to terminate his parental rights to J.W. based on the live pleading because Father did not even know that J.W. was his biological child until four days before trial. Even though the Department alleged grounds for terminating Father’s parental rights to other children, the Department listed no grounds for terminating his parental rights to J.W. As a result, we conclude that termination of Father’s parental rights to J.W. in the absence of any pleading requesting such action constituted fundamental error, which was not required to be preserved.” In the Interest of J.W., No. 06-21-00098-CV, 2022 Tex. App. LEXIS 812, at *6-8 (Tex. App.—Texarkana Feb. 3, 2022)

Your complaint must comply with the pertinent rules:

Affirmative Defenses: “A party asserting an affirmative defense in a bench trial must request findings in support of that defense to avoid waiver on appeal….When the trial court makes findings that do not establish any element of a defense, the party relying upon that defense must file a request for additional findings to avoid waiver of that defense on appeal…. Appellant did not request a finding of fact or conclusion of law on the affirmative defenses of statute of limitations, estoppel, justification, or laches. After the trial court issued its findings of fact and conclusions of law, Appellant did not file a request for additional findings of fact and conclusions of law. We conclude, therefore, that Appellant has waived any error related to her affirmative defenses of limitations, estoppel, justification, and laches…. We overrule Appellant’s fourth and sixth issues, and we do not consider Appellant’s arguments of estoppel or justification as to issue three.” Cahill v. Cahill, No. 09-20-00206-CV, 2022 Tex. App. LEXIS 792, at *19-20 (Tex. App.—Beaumont Feb. 3, 2022)

Summary Judgment: “By his final issue, Ehmann asserts that Texas law does not permit the recovery of attorney’s fees for a conversion action. He complains that “Chase’s ultimate cause of action is conversion” and he has improperly recast that claim into one for declaratory relief for the purpose of recovering attorney’s fees. But Ehmann does not direct us to any place in the record where he presented this argument to the trial court. In the context of summary judgments, “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015)….); see Tex. R. App. P. 33.1. Because Ehmann failed to present this argument to the trial court, it has been waived.” Ehmann v. Chase, No. 07-21-00037-CV, 2022 Tex. App. LEXIS 839, at *11 (Tex. App.—Amarillo Feb. 3, 2022)

Your complaint must be timely:

Conflicting Jury Answers: “In his first issue, Murphey argues that there is legally insufficient evidence that Murphey breached the disclosure provisions of the parties’ agreements based on the jury’s findings that Murphey did not commit fraud and did not knowingly or intentionally deceive Old Dollar. As argued by Murphey, the seller’s disclosures in the agreement are limited to what a seller is “aware of.” Therefore, Murphey maintains that there can be no breach of the contract’s disclosure requirements based on the jury’s findings that there was no purposeful deception.3

Although couched as a sufficiency issue, Murphey complains about a conflict in the jury’s answers. Particularly, Murphey maintains that the jury’s affirmative breach of contract finding conflicts with its negative findings regarding fraud and whether his deception was knowing or intentional. Texas Rule of Civil Procedure 295, entitled “Correction of Verdict,” provides that if a jury’s answers “are in conflict,” the trial court must give the jury written instructions regarding the nature of the conflict “and retire the jury for further deliberations.” Tex. R. Civ. P. 295. But to preserve error in this regard, “the appellant must object to the conflict or inconsistency before the jury is discharged.” Norwest Mortg., Inc. v. Salinas, 999 S.W.2d 846, 865 (Tex. App.—Corpus Christi—Edinburg 1999, pet. denied); see USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 516-17 (Tex. 2018); see also Tex. R. App. P. 33.1(a). Because Murphey failed to object to the jury’s inconsistent findings in the trial court before the jury was discharged, he has failed to preserve this argument. Other than pointing out the alleged conflict in the jury’s verdict, Murphey does not argue that there is insufficient evidence supporting a finding that Murphey knew of, but failed to disclose, issues with the septic system. Further, because such a finding supports the jury’s breach of contract verdict, we need not address Murphey’s arguments that there is legally insufficient evidence that he breached the agreements by other means. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”). We overrule Murphey’s first issue.” Murphey v. Old Dollar Props., No. 13-19-00530-CV, 2022 Tex. App. LEXIS 802, at *14-15 (Tex. App.—Corpus Christi Feb. 3, 2022)

Receiver: “Appellant first complains that because Amberson did not file his bond or take his receiver oath before hiring an appraiser, inspector, and lawyer, Amberson incurred costs as an individual and not pursuant to the trial court’s mandate as receiver. However, our review of the extensive record fails to show appellant timely objected or filed a motion challenging Amberson’s failure to file the bond or his oath before performing certain duties as receiver. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 64.022-.023. Instead, the record indicates he raised these complaints months after Amberson’s receiver appointment, and appellant’s references were not specific objections or arguments that would have put the trial court on notice that appellant was complaining about the arguments he now raises on appeal. Thus, we conclude appellant has not preserved these arguments for review and, therefore, cannot support his sufficiency challenge. See TEX. R. APP. P. 33.1; see also In re Marriage of Davis, 418 S.W.3d 684, 689 (Tex. App.-Texarkana 2012, no pet.) (concluding appellant waived argument challenging receiver’s failure to take oath prior to performing duties when he waited four months to complain to trial court).” Shultz v. Shultz, No. 05-20-00819-CV, 2022 Tex. App. LEXIS 871, at *6-7 (Tex. App.—Dallas Feb. 4, 2022)

I hope this helps.  It looks like we have some pretty days ahead, and I hope you have time to enjoy being outside for some of them.

Yours, Steve Hayes; 817/371-8759;


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