Error Preservation in Texas Civil Cases, Week Ending 3/28/20

April 3, 2020

Dear All:

Sorry folks.  Did not get last week’s stuff posted until now.

Table of Contents

The Dallas Court reaffirmed that one does not have to raise a complaint in the trial court in order to complain on appeal about the failure of a temporary injunction order to comply with Rule 683

A complaint about ripeness is jurisdictional, and may first be asserted on appeal

You have to comply with other pertinent rules

Affirmative Defense (Anti-Assignment Clause)

The Blurbs

The Dallas Court reaffirmed that one does not have to raise a complaint in the trial court in order to complain on appeal about the failure of a temporary injunction order to comply with Rule 683:

Temporary Injunction Order: “In reaching this conclusion, we necessarily reject Lake Point’s argument that appellants waived their complaint by failing to raise it in the trial court. n. 1 Long-standing precedent of this Court and the supreme court establishes that the requirements of Rule 683 are mandatory and a temporary injunction that fails to comply with those requirements is void and must be dissolved. See InterFirst, 715 S.W.2d at 641; Reiss, 2019 Tex. App. LEXIS 3202, 2019 WL 1760360, at *2; Indep. Capital Mgmt., 261 S.W.3d at 795. Specifically, this and other Courts have held that a temporary injunction order that fails to comply with Rule 683 is void and for this reason a party cannot waive the error by agreeing to the form or substance of the order. See Indep. Capital Mgmt., 261 S.W.3d at 795 n.1; Conlin v. Haun, 419 S.W.3d 682, 686 – 87 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing In re Garza, 126 S.W.3d 268, 271 (Tex. App.—San Antonio 2003, no pet.)); Big D Properties, Inc. v. Foster, 2 S.W.3d 21, 23 (Tex. App.—Fort Worth 1999, no pet.) (holding Rule 683’s requirements may not be waived). Further, this Court can declare a temporary judgment void even if the parties have not raised the issue. See City of Sherman v. Eiras, 157 S.W.3d 931, 931 (Tex. App.—Dallas 2005, no pet.); Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex. Civ. App.—San Antonio 1981, no writ).

n. 1 Lake Point relies on Texas Tech University Health Sciences Center v. Rao, 105 S.W.3d 763, 767 – 68 (Tex. App.—Amarillo 2003, pet. dism’d) and Emerson v. Fires Out, Inc., 735 S.W.2d 492 (Tex. App.—Austin 1987, no writ) for this minority position. See also Hoist Liftruck Mfg., Inc. v. Carruth-Doggett, Inc., 485 S.W.3d 120, 124 – 25 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (Frost, J., concurring) (discussing split of authority among courts of appeal and arguing for a preservation requirement).”

Massenburg v. Lake Point Advisory Grp., LLC, No. 05-19-00808-CV, 2020 Tex. App. LEXIS 2575, at *3 (Tex. App.—Dallas Mar. 26, 2020)

A complaint about ripeness is jurisdictional, and may first be asserted on appeal:

Ripeness: “On appeal, the Hickersons argue that the Rices failed to preserve their advisory opinion complaint for appellate review. But the Rices challenge a portion of the trial court’s judgment for ripeness, and ripeness may be raised for the first time on appeal. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (“Ripeness is an element of subject matter jurisdiction.”); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993) (“Subject matter jurisdiction is an issue that may be raised for the first time on appeal . . . .”).” Rice v. Hickerson, No. 04-18-00694-CV, 2020 Tex. App. LEXIS 2461, at *19 n.1 (Tex. App.—San Antonio Mar. 25, 2020)

You have to comply with other pertinent rules:

Affirmative Defense (Anti-Assignment Clause): “An anti-assignment clause [*19] is considered an affirmative defense and, like other affirmative defenses, it can be waived. See Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 719, 722 (Tex. App.—Dallas 2004, no pet.). Moreover, affirmative defenses are waived if they are not pleaded or tried by consent. Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied); see also Tex. R. Civ. P. 94; Land Title Co. of Dall., Inc. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex. 1980) (Rule 94 requires all matters constituting avoidance or affirmative defense be pleaded to give opposing party notice of defensive issues to be tried; failure to do so results in waiver of affirmative defense); Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 816 (Tex. App.—Dallas 2003, pet. denied) (issues raised by builder on appeal in breach of contract action were waived where builder failed to plead issues as affirmative defenses and failed to request proper jury questions); Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (party waives affirmative defense if not pleaded or tried by consent). Mann did not plead the anti-assignment clause as an affirmative defense or raise it in her answer, and she does not argue the issue was tried by consent. Nor is there any indication in the record that she brought the matter to the trial court’s attention. Accordingly, to the extent Mann is relying on the anti-assignment provision as a matter of avoidance or an affirmative defense, she waived the issue.” Mann v. Propst, No. 05-19-00432-CV, 2020 Tex. App. LEXIS 2581, at *18-19 (Tex. App.—Dallas Mar. 26, 2020)

There were also several cases which dealt with situations where parties failed to raise their complaints in the trial court.

Y’all stay safe and well.

Yours, Steve Hayes (shayes@stevehayeslaw.com; 817/371-8759)

www.stevehayeslaw.com

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