November 8, 2021
Table of Contents
Here, in a family law cases involving child custody, we see how it might be best (as here) to make a pre-trial demand that a court reporter record any interview of the children by the judge, and then complain on the absence of the court reporter from that interview as soon as the absence becomes known
Here is an interesting one about venue concerning a Rule 202 action for pre-suit depositions–if you had asked me, I guess I would have assumed one has to comply with the provisions of Rule 87 to challenge venue in such a 202 action
Your complaint must be timely
While I won’t profile them here, opinions this week reaffirmed that you must make complaint about the following in the trial court
Here, in a family law cases involving child custody, we see how it might be best (as here) to make a pre-trial demand that a court reporter record any interview of the children by the judge, and then complain on the absence of the court reporter from that interview as soon as the absence becomes known:
Affidavit: “To the extent Allan argues that Mindy failed to preserve this contention for appellate review because, in September 2017, she requested that a court reporter record the trial court’s interview with her daughter, but she did not object to the lack of a court [*27] reporter at the time the court finally interviewed both children after trial in December 2018, we disagree….here, the record is silent concerning the circumstances under which the trial court interviewed the children in chambers, including whether the parties or their counsel were aware of the presence—or lack thereof—of a court reporter during the interviews. As in In re A.C., it is possible that Mindy assumed the court reporter was making a record of the interviews—as she had requested in her pretrial motion—but did not learn of the failure to record the interviews until later and therefore had no opportunity to call the problem to the trial court’s attention before the interviews occurred. See id. Under these circumstances, we conclude that Mindy preserved this complaint for appellate review.” In re Comstock, No. 01-19-00722-CV, 2021 Tex. App. LEXIS 8004, at *26-28 (Tex. App.—Houston [1st Dist.] Sep. 30, 2021)
Here is an interesting one about venue concerning a Rule 202 action for pre-suit depositions–if you had asked me, I guess I would have assumed one has to comply with the provisions of Rule 87 to challenge venue in such a 202 action:
Venue: “Harbor argues Relators waived their objection about venue because they failed to specifically deny Harbor’s venue allegations. Harbor cites the Rule of Civil Procedure that applies to motions to transfer venue. See Tex. R. Civ. P. 87.3. Harbor’s argument is misplaced because even though Relators did not file a motion to transfer venue, Relators specifically controverted venue in Jefferson County with respect to the Rule 202 petition.
We conditionally grant mandamus relief because the trial court clearly abused its discretion by ordering the pre-suit depositions and Relators have no adequate remedy by appeal. See Akzo Nobel Chem., Inc., 24 S.W.3d at 921. We are confident that the trial court will vacate its August 18, 2021 order granting the petition for pre-suit depositions. A writ [*4] of mandamus shall issue only if the trial court fails to comply.” In re Jeffrey, No. 09-21-00249-CV, 2021 Tex. App. LEXIS 7999, at *3-4 (Tex. App.—Beaumont Sep. 30, 2021)
Your complaint must be timely:
Arbitration: “Smith delivered his ruling in an October 20, 2020 letter to the parties’ attorneys. April’s trial counsel emailed Smith on October 28, 2020, and that email establishes April had received the ruling by that point. As a result, April was required to file an application to vacate, modify, or correct the arbitration award by January 26, 2021 at the latest. See id.; see also Zars v. Davis, No. 04-05-00800-CV, 2006 Tex. App. LEXIS 8933, 2006 WL 2955326, at *1 (Tex. App.—San Antonio Oct. 18, 2006, no pet.) (mem. op.).
April did not assert any challenges to the award in the trial court until March of 2021. Because April did not file an application to vacate, modify, or correct the award within 90 days of the date of delivery of that award, she waived any challenge she may have had.” Singer v. Singer, No. 04-21-00200-CV, 2021 Tex. App. LEXIS 7944, at *6 (Tex. App.—San Antonio Sep. 29, 2021)
Jury Trial: “We agree with the probate court. Although Bob demanded a jury and paid the fee, at the pretrial conference, his attorney agreed to a bench trial on the issue of his suitability and qualification to serve as Lockie’s guardian. When the court later ruled that there would be no jury trial at all, including as to McGuire’s good faith, Bob’s counsel did not object or affirmatively indicate that Bob intended to stand on [*20] his perfected right to a jury trial. He participated in the bench trial, and then he objected to the absence of a jury after judgment was rendered. That objection was untimely. See Tex. R. App. P. 33.1.” Goode v. McGuire, No. 01-20-00028-CV, 2021 Tex. App. LEXIS 7920, at *19-20 (Tex. App.—Houston [1st Dist.] Sep. 28, 2021)
All for now. Y’all remain safe and well.