November 16, 2021
Table of Contents
Here is a case which illustrates the importance of having the trial court rule on a complaint–both because TRAP 33.1 requires a ruling, and because it requires that a complaint be brought to the trial judge’s attention
While I won’t profile them here, opinions this week reaffirmed that you must make complaint about the following in the trial court
Here is a case which illustrates the importance of having the trial court rule on a complaint–both because TRAP 33.1 requires a ruling, and because it requires that a complaint be brought to the trial judge’s attention:
Constructive Eviction: “….assuming that Beal adequately briefed her first issue on appeal, she failed to preserve the issue for appeal at trial. See Tex. R. App. P. 33.1(a).
On April 14, 2020, by letter, the Clerk of this Court notified Beal that the reporter’s record had not been filed and stated “that unless this defect is cured within ten days from the date of this letter, the Court will consider and decide those issues or points that do not require a reporter’s record for a decision.” See Tex. R. App. P. 37.3(a)(1), (c) (procedures for instances when appellant fails to file record). Beal made no subsequent arrangements to provide this Court with a reporter’s record. Accordingly, our analysis of Beal’s first issue is limited to the information in the clerk’s record.
The clerk’s record lacks any indication that Beal properly preserved any issue of constructive eviction for appeal. See Tex. R. App. P. 33.1. The only mention of constructive eviction in her pleading is raised as a special exception and notes as follows:
4. Defendant presents her special exception in Plaintiff’s Paragraph 19 in that it speaks of constructive [*11] eviction, constructive eviction is not legal, therefore, Plaintiffs should be suing the evictors.
In truth and in fact, Plaintiffs obtained profits from the property. A notice of Substitute Trustee’s sale does not evict anyone that is an illegal eviction.
Texas Property Code, chapter 51, states the requirements for foreclosure and chapter 24 states the requirements for evictions what Plaintiffs are describing are illegal acts. Defendant can not [sic] be responsible for someone else’s illegal acts.
However, there is no indication in the clerk’s record that the trial court ruled on Beal’s special exception or that Beal objected to the trial court’s failure to rule on her special exception. See Tex. R. App. P. 33.1. Consequently, Beal failed to preserve the issue for appeal.” Beal v. Villa, No. 13-20-00123-CV, 2021 Tex. App. LEXIS 9125, at *9 (Tex. App.—Corpus Christi Nov. 10, 2021)
All for now. Y’all take good care and stay safe and well.
Yours, Steve Hayes