August 17, 2021
Caught up again, with a couple of interesting opinions about objecting to an expert post-trial (through a legal-sufficiency complaint) and preserving Casteel objections in a bench trial.
Table of Contents
How specific does the legal insufficiency challenge in the motion for new trial need to be to preserve a challenge to the opposing expert? Here’s one case that indicates perhaps not all that specific
You can assert a Casteel objection in a bench trial–but to preserve your complaint, you must request appropriate additional or amended findings
You must get a ruling, express or implied, on your complaint
You have to comply with other pertinent rules
While I won’t profile them here, opinions this week reaffirmed that you must make complaint about the following in the trial court
Trial Court’s Bias
How specific does the legal insufficiency challenge in the motion for new trial need to be to preserve a challenge to the opposing expert? Here’s one case that indicates perhaps not all that specific:
Expert: “The State asserts that Jackson failed to preserve error on Issues One and Two because he made no objection at trial to the admissibility or reliability of either expert witness’s testimony, his motion for directed verdict merely asserted the State had not met its burden of proof, and his motion for new trial offered no argument supporting his conclusion that the evidence was legally insufficient. Jackson’s motion for new trial challenged the legal and factual sufficiency of evidence to support findings that he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence, that he has serious difficulty controlling his behavior, and that he is a sexually violent predator as statutorily defined. The motion also challenged the competence of expert opinion regarding Jackson’s likelihood of reoffending, and as the statute fails to define “likely,” contended it is void, unconstitutional, and rendered the expert opinion a guess as to the term’s meaning.
Complaints of legal and factual insufficiency of evidence raised in a motion for new trial generally are preserved for review. Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 324(b); ….Under a legal sufficiency analysis, an expert’s opinion constitutes no more than a mere scintilla of evidence if the opinion is not reliable under the same standards that govern admissibility, is speculative or conclusory on its face, or is based on unfounded assumptions….A distinction exists between challenges to an expert’s scientific methodology and no-evidence challenges alleging the face of the record demonstrates that expert opinion lacks probative value….When expert opinion is admitted in evidence without objection, it may be considered probative evidence even if the basis for the opinion is unreliable….When a reliability challenge requires evaluation of the underlying methodology, technique, or foundational data used by an expert, failure to object at trial waives appellate review because the trial court should conduct this analysis….Failure to object does not waive legal sufficiency challenges to the reliability of expert opinion where there is no need to go beyond the record to test whether the opinion is conclusory or speculative on its face, contains fatal gaps in analysis, or is simply incorrect…. A judgment may not be supported [*8] by conclusory expert testimony, even if a party did not object to admission of such testimony, because it is considered no evidence….
While Jackson failed to object to the admissibility of the experts’ testimony or the reliability of their underlying data and methodologies, his specific legal sufficiency challenges raised in Issues One and Two can be evaluated on the face of the record before us and we will address them.” In re Jackson, No. 05-20-00519-CV, 2021 Tex. App. LEXIS 6711, at *6-8 (Tex. App.—Dallas Aug. 12, 2021)
You can assert a Casteel objection in a bench trial–but to preserve your complaint, you must request appropriate additional or amended findings:
Casteel: “”The supreme court has held that reversible error is presumed when a broad-form question submitted to the jury incorporates multiple theories of liability and one or more of those theories is invalid, Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000), or when the broad-form question commingles damage elements that are unsupported by legally sufficient evidence, Harris Cnty. v. Smith, 96 S.W.3d 230, 233-34 (Tex. 2002).” In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 394 (Tex. App.—Dallas 2013, no pet.) (citing Thota v. Young, 366 S.W.3d 678, 680 (Tex. 2012)). “[I]n order to preserve Casteel-type error in a bench trial, the party must request additional or amended findings of fact that specifically draw the trial court’s attention to the complaint that one of the elements of damages included in the trial court’s broad-form finding was unsupported by the evidence.” Id. at 394-95 (citing Tagle v. Galvan, 155 S.W.3d 510, 516 (Tex. App.—San Antonio 2004, no pet.); Miranda v. Byles, 390 S.W.3d 543, 552 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (op. on reh’g) (to preserve error in bench [*31] trial, party must request additional findings of fact and conclusions of law asking for detailed apportionment of findings between permissible and impermissible bases for liability)).
While Macy’s contends the evidence is insufficient to support the trial court’s $25,000 award and Macy’s requested the trial court amend Conclusion of Law 3 or, alternatively, make additional findings of fact, Macy’s did not “draw the trial court’s attention to the complaint that one of the elements of damages included in the trial court’s broad-form finding was unsupported by the evidence.” See Marriage of C.A.S. & D.P.S., 405 S.W.3d at 394. We conclude Macy’s is limited to challenging the sufficiency of the evidence supporting the damages awarded as a whole.” Macy’s Retail Holdings, Inc. v. Benavides, No. 05-19-01264-CV, 2021 Tex. App. LEXIS 6712, at *30-31 (Tex. App.—Dallas Aug. 12, 2021)
You must get a ruling, express or implied, on your complaint:
Discovery: “We have reviewed the record before us and find no ruling by the trial court on Drew’s motion for limited discovery and no objection by Drew to the trial court’s apparent failure to rule. See Tex. R. App. P. 33.1(a)(2);….
After Belver filed her motion to dismiss under the TCPA, Drew filed a motion for limited discovery under the TCPA and requested a two-hour deposition of Belver. Belver responded to the motion asserting Drew failed to establish good cause for the deposition under the TCPA. The record contains an amended notice of hearing set for Drew’s motion for limited discovery, but the record does not indicate that the trial [*7] court ruled on the motion for limited discovery. The only reporter’s record is from the motion to dismiss hearing and there is no mention of Drew’s motion for limited discovery at this hearing [n. 3. Drew states there was a hearing on his motion for limited discovery and that the court stated, “a ruling would be forthcoming in a few days.” However, as stated above, there is no transcript from this hearing in the reporter’s record to indicate that the trial court made this statement. ]…. There is no evidence in the record that Drew requested a ruling on the motion for limited discovery prior to the court’s dismissal of the case….
Because Drew neither obtained a ruling on his motion for limited discovery nor objected to the trial court’s refusal to rule, he failed to preserve for our review any issue regarding his motion for limited discovery. See Tex. R. App. P. 33.1(a)(2);” Drew v. Belver, No. 04-20-00483-CV, 2021 Tex. App. LEXIS 6584, at *6-7 (Tex. App.—San Antonio Aug. 11, 2021)
You have to comply with other pertinent rules:
Evidence: “Place attempted to introduce 35 pages of text messages that she alleged were exchanged between [*7] herself and McCoy. The trial court admitted two pages of text messages that McCoy confirmed passed between himself and Place. Regarding the remaining pages, the trial court ruled, “He’s only identified that one part of the text. I’m going to give you an opportunity to further question him. At this time, I’m going to sustain the objection [to the admissibility of] the remaining texts, unless you properly authenticate the remaining pages of those texts that you’re offering.” Place did not provide a predicate for the admission of the remaining texts, and they were not admitted into evidence or included in the reporter’s record. Place did not make an offer of proof regarding the excluded text messages, and the excluded messages are not included in the appellate record.
To challenge the exclusion of evidence on appeal, the complaining party must present the excluded evidence to the trial court by an offer of proof or formal bill of exception and obtain a ruling…. see Tex. R. Evid. 103(a); Tex. R. App. P. 33.2. Because Place did not make an offer of proof or file a bill of exceptions to preserve the evidence for the appellate record, she [*8] has waived her complaint that the trial court erred in refusing to admit the evidence.
To the extent Place is complaining of the exclusion of some other evidence, we observe that the record must show that she offered the evidence and that the trial court actually excluded the evidence. See Tex. R. App. P. 33.1(a); ….There is no such showing regarding any other evidence.” Place v. McCoy, No. 01-20-00186-CV, 2021 Tex. App. LEXIS 6569, at *6-8 (Tex. App.—Houston [1st Dist.] Aug. 10, 2021)
All for now. Y’all take good care.
Yours, Steve Hayes