Error Preservation in Texas Civil Cases, Week Ended September 4, 2021

September 8, 2021

Dear Friends:

I think this catches me up, at least until this Saturday.

Table of Contents

Here is a really good template about preserving a complaint to evidence on a TCPA motion–including the trial court’s refusal to rule on your complaint (while underscoring the value of citing well-respected commentators like my good friends Lynn Liberato, Natasha Breaux, and Tim Patton on issues)


You have to get a ruling on your complaint


Your complaint on appeal must comport with the complaint you made below


You have to comply with other pertinent rules

Affirmative Defenses
Jury Charge

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

Judicial Notice
Jury Charge
Jury Charge
Reporters Record


Here is a really good template about preserving a complaint to evidence on a TCPA motion–including the trial court’s refusal to rule on your complaint (while underscoring the value of citing well-respected commentators like my good friends Lynn Liberato, Natasha Breaux, and Tim Patton on issues):

Evidence: “BSW Preserved Trial Court’s Refusal to Rule on Its Evidentiary Objections

The 2019 TCPA amendments provide that we shall consider the pleadings, evidence that we could consider under Texas Rule of Civil Procedure 166a (summary judgment rule), and supporting and opposing affidavits. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006 (West 2020). In general, for purposes of issue preservation for appeal, a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for [*41] summary judgment. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 165-66 (Tex. 2018). Summary judgment evidence must be admissible. See Tex. R. Civ. P. 166a(f); United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997).

Here, BSW made its objections to Rose’s TCPA evidence. The trial court did not rule on BSW’s objections. BSW timely objected to the trial court’s refusal to rule in writing. Accordingly, BSW preserved error in this regard. See Tex. R. App. P. 33.1(a)(2)(B) (stating objection to refusal to rule sufficient to preserve issue for appeal); see also Lynne Liberato & Natasha Breaux, Objecting to Summary Judgment Evidence in State Court: Recent Clarifications and Remaining Complications, 56 Hous. Law. 10, 11-12 (Sept./Oct. 2018) (describing evolution of Texas law on error preservation when trial court does not rule on summary judgment evidentiary objections).

Furthermore, we are in the same position as the trial court in evaluating the objections at the TCPA phase of this proceeding. Although we were unable to locate specific authority on this subject, we agree with the reasoning from a prominent treatise discussing Texas summary judgments:

A trial judge who makes a ruling on the admissibility of summary judgment proof, however, is in no different position than an appellate justice looking at the identical proof. The judge and the justice are both [*42] looking at the same affidavit or deposition from a paper trial and are equally situated in terms of applying the rules of evidence—which is the very reason the standard of appellate review for the merits of a summary judgment appeal is de novo. Consequently, there appears to be a sound argument for applying a de novo standard of review to evidentiary rulings in a summary judgment proceeding rather than the deferential standard used for trials.

Timothy Patton, Summary Judgments in Texas: Practice, Procedure and Review § 6.10[5] (3d ed. 2020). Therefore, based on the above rationale, along with judicial economy concerns, we need not remand to the trial court with instructions to rule on the complained of TCPA evidence.” Baylor Scott & White v. Project Rose MSO, LLC, No. 12-20-00246-CV, 2021 Tex. App. LEXIS 7234, at *40-42 (Tex. App.—Tyler Aug. 30, 2021)

You have to get a ruling on your complaint:

Evidence: “In their argument opposing the commercial-speech exemption’s application in this case, the TheraSource Parties renew their objections to Houston OT’s evidence and urge this Court not to consider certain of the exhibits and affidavits. They acknowledge, however, that the trial court did not rule on their objections, meaning this Court would be doing so in the first instance. This, we will not do. To preserve any complaints about Houston OT’s evidence, the TheraSource Parties were required to obtain the trial court’s ruling. Tex. R. App. P. 33.1(a); see Robins v. Clickenbeard, No. 01-19-00059-CV, 2020 Tex. App. LEXIS 423, 2020 WL 237943, at *10 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020, no pet) (mem. op.) (appellant’s objection regarding lack of expert witness testimony in TCPA case was waived because record did not show trial court ruled on objection). Because the trial court did not rule on the TheraSource Parties’ objections, the objections are not preserved for appellate review. Tex. R. App. P. 33.1(a).” TheraSource, LLC v. Hous. Occupational Therapy, PLLC, No. 01-19-00877-CV, 2021 Tex. App. LEXIS 7244, at *26 n.6 (Tex. App.—Houston [1st Dist.] Aug. 31, 2021)

Your complaint on appeal must comport with the complaint you made below:

Evidence: “At trial, the State tendered four letters for admission. While Parfait objected to the admission of all four letters “as to relevance,” Parfait only objected to the Beverly letter under Rule 403. See Tex. R. Evid. 401, 403. Therefore, Parfait’s argument on appeal that all four letters were unduly prejudicial under Rule 403 has not been preserved for our review. See Tex. R. App. P. 33.1(a);” In re Commitment of Parfait, No. 13-20-00277-CV, 2021 Tex. App. LEXIS 7253, at *22 (Tex. App.—Corpus Christi Aug. 31, 2021)

You have to comply with other pertinent rules:

Affirmative Defenses: “ The statute of limitations and the statute of frauds are both affirmative defenses, which, if not pleaded, are waived. See Tex. R. Civ. P. 94 (listing statute of limitations and statute of frauds as affirmative defense and requiring defendant to plead “any . . . matter constituting an avoidance or affirmative defense”). The McMahans did not plead statute of limitations or statute of [*24] frauds as an affirmative defense in their answer. Nor did they raise either of these affirmative defenses in their response to Izen’s traditional motion for summary judgment. The McMahans claim on appeal that these defenses were raised in their affidavits filed in response to Izen’s motion for summary judgment. But a review of the affidavits show that neither limitations nor the statute of frauds is discussed. Therefore, the McMahans did not preserve these two issues for our review. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); Miller, 2020 Tex. App. LEXIS 4623, 2020 WL 3422290, at *3 (holding issues asserting summary judgment should be reversed based on statute of limitations and statute of frauds were not preserved because arguments not raised in response to motion for summary judgment); see also Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992) (HN19 “In an appeal from a summary judgment, issues to be reviewed by the appellate court must have been actually presented to and considered by the trial court.”).” McMahan v. Izen, No. 01-20-00233-CV, 2021 Tex. App. LEXIS 7339, at *23-24 (Tex. App.—Houston [1st Dist.] Sep. 2, 2021)

Jury Charge: “In response, HMA contends that Zabihian waived the issue by (1) failing to object to Question No. 1 of the jury charge, and (2) failing to submit a charge question reflecting its preferred interpretation of the phrase at issue. To the extent [*10] Zabihian’s first issue challenges the inclusion of Question No. 1 in the jury charge, we agree.  “[A] party waives an entire theory of recovery or defense by not objecting to its omission from the charge.” Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex. 2002). And “[f]ailure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment.” Tex. R. Civ. P. 278; see Tex. R. Civ. P. 279 (“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.”); see also Tex. R. App. P. 33.1(a)(1). Zabihian did not object to the jury charge on any grounds. Moreover, though Zabihian advocated for his preferred interpretation in his response to HMA’s pre-trial motion, he did not submit a proposed charge question asking whether HMA “was obligated to offer [Zabihian] two points when they became available,” nor did he submit a question asking whether HMA violated any such obligation.” Zabihian v. Hyundai Motor Am., No. 13-20-00067-CV, 2021 Tex. App. LEXIS 7329, at *9 (Tex. App.—Corpus Christi Sep. 2, 2021)

That’s it for now.  Y’all enjoy the rest of the week.

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.

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