Error Preservation in Texas Civil Cases, Week Ending March 27, 2021

April 7, 2021

Dear Friends:

Sorry for the absence.  The pesky day job kept getting in the way.

Table of Contents

As far as I can recall, here is the first case holding that you have to raise a due process complaint in the trial court about the court conducting a Zoom trial

Due Process

Here is an interesting twist on when a complaint on appeal differs enough from the complaint at trial that it was not preserved

U.C.C.

While you can challenge your opponent’s traditional motion for summary judgment on appeal on a basis you did not raise in the trial court, concomitantly the granting of your counter-traditional motion for summary judgment cannot be sustained on appeal on a ground you did not assert in it

Summary Judgment

Your complaint must be timely

Summary Judgment (Attorneys Fees)

You have to get a ruling on your objection, but you can preserve certain objections by joining in the objections of others and obtaining a ruling on the same

Evidence (Summary Judgment)

Jury Trial

You have to comply with the pertinent rules

Findings and Conclusions

Blurbs

As far as I can recall, here is the first case holding that you have to raise a due process complaint in the trial court about the court conducting a Zoom trial.

Due Process: “To the extent M.P. argues the trial court’s bench trial via Zoom deprived her of due process, M.P. was required to raise this argument in the trial court to preserve it for appeal. See In re R.J.B., No. 04-18-00804-CV, 2019 Tex. App. LEXIS 785, 2019 WL 451681, at *2 (Tex. App.—San Antonio Feb. 6, 2019, no pet.) (mem. op.) (holding due process complaint about trial court’s failure to postpone trial waived because appellant asserted it for the first time on appeal). Here, M.P. did not raise this issue in the trial court, and therefore waived it.” In the Interest of A.L.H., No. 04-20-00452-CV, 2021 Tex. App. LEXIS 2199, at *6 (Tex. App.—San Antonio Mar. 24, 2021)

Here is an interesting twist on when a complaint on appeal differs enough from the complaint at trial that it was not preserved.

U.C.C.: “During trial and in her motion for new trial, McPherson did, however, raise part of the argument she makes in Issue Five on appeal. During trial, McPherson requested a credit for money she paid on the veil and headpiece because she returned those to Lopez. In her motion for new trial, McPherson asserted that the judgment should be reversed because the trial court refused to provide her the credit requested. McPherson maintained that she returned the veil and headpiece because they were not the custom items ordered and she was, therefore, owed a credit when Lopez did not correct the order. On appeal, she [*11] adds that Lopez was required by sections 2-302, 2-307, 2-308, 2-513, and 2-602 of the Uniform Commercial Code (UCC) to give McPherson a credit for returning those items. We overrule her UCC-specific arguments regarding her request for a credit because she raises those arguments for the first time on appeal. See Tex. R. App. P. 33.1(a). We do, however, address her general argument that a new trial is warranted.” McPherson v. Lopez, No. 05-18-01504-CV, 2021 Tex. App. LEXIS 2324, at *10-11 (Tex. App.—Dallas Mar. 25, 2021)

While you can challenge your opponent’s traditional motion for summary judgment on appeal on a basis you did not raise in the trial court, concomitantly the granting of your counter-traditional motion for summary judgment cannot be sustained on appeal on a ground you did not assert in it.

Summary Judgment: “Appellees, as nonmovants, had no burden even to respond to Lockhart’s motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993).  Rather, “summary judgments must stand or fall on their own merits, and the non-movant’s failure to except or respond cannot supply by default the grounds for summary judgment or the summary judgment proof necessary to establish the movant’s right . . . .” Id. Because Appellees had no burden to respond to Lockhart’s motion, it follows they had no burden to oppose it on the ground that their Section 38 Interest is nonpossessory and, therefore, not suitable for a trespass to try title action. See id. For this reason, Vernon and Krabbe’s preservation of error analysis does not apply to the question of whether the trial court erred by denying Lockhart’s motion for summary judgment. Yet the analysis does not end with that determination alone.

Here, the trial court did not simply deny Lockhart’s motion for summary judgment; rather, based on Appellees’ own motion for summary judgment, it entered a take-nothing judgment on all of Lockhart’s claims, including her action for trespass to try title. Granting Appellees affirmative relief is proper only if Appellees either conclusively negated Lockhart’s trespass to try title action or conclusively established an affirmative defense to that action.  See Bradshaw, 457 S.W.3d at 79 (explaining summary judgment burdens). In this context, the trial court remained constrained to grant affirmative relief to Appellees based only on grounds expressly presented in their summary judgment motion. See Magee, 347 S.W.3d at 297; Tex. R. Civ. P. 166a(c). Here, Appellees failed to present to the trial court their argument that trespass to try title is not a suitable action against them because they only assert ownership of a nonpossessory royalty and reversionary interest in Section 38. See Glover, 187 S.W.3d at 210; T-Vestco, 651 S.W.2d at 291. Given this omission, Appellees cannot raise their preliminary argument for the first time on appeal as grounds for affirming the trial court’s take-nothing judgment; it is [*17] not preserved for review in that context.” Lockhart v. Chisos Minerals, LLC, No. 08-19-00153-CV, 2021 Tex. App. LEXIS 2231, at *15-17 (Tex. App.—El Paso Mar. 24, 2021)

Your complaint must be timely.

Summary Judgment (Attorneys Fees): “In its motion for summary judgment, HLG argued it was entitled to an attorney’s-fee award based on its counsel’s efforts in defending against Nicholson’s “30 requests for declaratory judgment pursuant to the Texas Declaratory Judgment Act.” HLG supported its request with its counsel’s affidavit in which he averred that HLG’s reasonable and necessary attorney’s fees “for the legal services to defend [HLG] in this case through the filing of [HLG’s] Motion for Summary Judgment is $11,700.00.” Attached to the affidavit was a “Summary of Attorney Time” that parsed the services performed on HLG’s behalf and the time spent on each service. In her response to HLG’s summary-judgment motion, Nicholson did not assert that HLG had failed to prove its reasonable and necessary attorney’s fees or that HLG had failed to segregate its fees, but she did raise her nonsegregation argument in her motion for new trial. Because Nicholson failed to raise her segregation argument in her response to HLG’s motion, she failed to preserve this issue 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 [*12] on appeal as grounds for reversal.”). Including the argument in her motion for new trial was too late for preservation purposes.” Nicholson v. Harvey Law Grp., No. 02-20-00180-CV, 2021 Tex. App. LEXIS 2299, at *11-12 (Tex. App.—Fort Worth Mar. 25, 2021)

You have to get a ruling on your objection, but you can preserve certain objections by joining in the objections of others and obtaining a ruling on the same.

Evidence (Summary Judgment): “By failing to obtain a ruling on her objections to the summary judgment evidence, Goins potentially waived the objections for appellate review. See Tex. R. App. P. 33.1(a);” Goins v. Discover Bank, No. 02-20-00128-CV, 2021 Tex. App. LEXIS 2310, at *3 n.3 (Tex. App.—Fort Worth Mar. 25, 2021)

Jury Trial: “In her first issue, L.C. similarly complains that the trial court abused its discretion in denying the parties a jury trial and asserts that she preserved error on the issue, even though she did not personally make the jury demand, [*16] by joining S.B.-N.’s Motion to Set Trial for Jury and indicating to the trial court that she intended to rely on S.B.-N.’s perfected jury demand. We agree. . . . .Therefore, L.C.’s challenge to the trial court’s ruling is properly before this Court in light of: S.B.-N.’s timely jury demand and the benefit thereof inuring to L.C.; L.C.’s representation to the court that she joined in S.B.-N.’s motion for a jury trial; and the trial court’s adverse ruling on the matter. See Tex. R. App. P. 33.1.” L.C. v. Tex. Dep’t of Family & Protective Servs., No. 03-20-00481-CV, 2021 Tex. App. LEXIS 2329, at *15-17 (Tex. App.—Austin Mar. 26, 2021)

You have to comply with the pertinent rules.

Findings and Conclusions: “After a trial court files its findings of fact and conclusions of law, a party may request specific additional or amended findings or conclusions within 10 days. Tex. R. Civ. P. 298. Here, Husband did not ask the trial court to make additional findings or conclusions addressing the amount of legal expenses in the Janac litigation or its reasons for assigning 100% of those fees to Husband. HN7 This failure to request amended or additional findings or conclusions waives the right to complain on appeal about the trial court’s failure to make the omitted findings or conclusions. See Tex. R. App. P. 33.1(a)(1)(B);” Grantom v. Swisher, No. 14-19-00705-CV, 2021 Tex. App. LEXIS 2234, at *12 (Tex. App.—Houston [14th Dist.] Mar. 25, 2021)

All for now.  I’ll clear some more of the backlog tomorrow.

Yours, Steve Hayes

shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com

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