Error Preservation in Texas Civil Cases, Week Ending July 15, 2022

July 19, 2022

Dearly Beloved:

Whoever is in charge of the thermostat can turn it down a notch or two.  In the meantime, the courts continue churning out error preservation decisions.

Table of Contents

Coming out of a bench trial, you can always raise a legal sufficiency claim for the first time on appeal

Legal Sufficiency

You have to get a ruling on your objection


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

Affirmative Defense
Findings and Conclusions
Governmental Immunity
Official Immunity


Coming out of a bench trial, you can always raise a legal sufficiency claim for the first time on appeal:

Legal Sufficiency: “We begin with the finding that the Mother is unfit, which the Mother argues is unsupported by the evidence. The Mother does not specify whether she is making a legal or factual sufficiency challenge, but the tenor of her argument suggests that she is claiming that there is legally insufficient evidence to support the trial court’s finding.

As a threshold matter, the Ex-Girlfriend contends that the Mother waived this argument by neither objecting nor requesting amended or additional findings of fact in the trial court. But legal sufficiency challenges may always be raised for the first time on appeal. See Tex. R. App. P. 33.1(d). And even though legal sufficiency is not an independent ground of error in family law cases, it is a factor to consider when deciding whether the trial court abused its discretion.” In the Int. of N.H., No. 14-21-00409-CV, 2022 Tex. App. LEXIS 4793, at *8-9 (Tex. App.—Houston [14th Dist.] July 14, 2022)

You have to get a ruling on your objection:

Evidence: “Legacy contends that the affidavits from the city secretary are conclusory and constitute hearsay. For reasons set forth above, we have determined they are not conclusory. Further, Legacy did not obtain a ruling on its hearsay objection to the trial court. An objection that an affidavit contains hearsay is an objection to the form of the affidavit….The failure to obtain a ruling from the trial court on an objection to the form of the affidavit waives the objection….Because the affidavits produced by the City were unrebutted, the admissibility of the printout from the TEC is immaterial, and we need not address it as it is not necessary for our resolution of this appeal. See TEX. R. APP. P. 47.1. Therefore, we overrule Legacy’s second issue.” City of Hutto v. Hutto, No. 07-21-00089-CV, 2022 Tex. App. LEXIS 4907, at *13-14 (Tex. App.—Amarillo July 18, 2022)


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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