Error Preservation in Texas Civil Cases, Wrapping Up 2018

Dear All:

Welcome to 2019!  I hope this New Year becomes your best ever.

I’ve failed to update this for way too long, so this is longer than it should be.

Table of Contents


Now, on to the specific cases.

Here is a case which reminds us why we should always have a prayer for general relief in our pleading:


Pleading: “A general prayer for relief will support any relief raised by the evidence that is consistent with the allegations and causes of action stated in the petition.” Moran v. Williamson, 498 S.W.3d 85, 93 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); accord Salomon v. Lesay, 369 S.W.3d 540, 553 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Lewis did not pray for general relief in her live pleading, though. Instead, she prayed for a specific calculation of damages for her breach of contract claim. She prayed for “the value of the property less the remaining payments [she] would have made to Silberstein under the contract for deed” or alternatively, for “the amount [she] would have to pay to reclaim the property from [the purchaser at the foreclosure sale].” The trial court’s restitution award does not reflect either of these proposed measurements.” Silberstein v. Lewis, No. 01-17-00294-CV, 2018 Tex. App. LEXIS 10648, at *7-9 (App.—Houston [1st Dist.] Dec. 20, 2018)

Some issues–like exclusive jurisdiction, the contention that an expert’s report was in fact not the report of an expert at all, and the lack of personal knowledge in an affidavit–can be raised for the first time on appeal:


Expert’s report: “Because Pogue [*10] does not purport to have expertise about the appropriate standards of care for discharging a firearm, let alone for operating a sport shooting range, and because his report does not provide opinions about such standards, we hold that Pogue is not an “expert” under section 128.051 and that his report is neither an “expert report” under section 128.051 nor a good faith effort to constitute the same. The Stinsons therefore failed to serve an “expert report” under section 128.053. See id. §§ 128.051(3)(A), (4), .053(a), (e). Consequently, there is also no merit to the Stinsons’ argument that relators waived their objections to Pogue’s report by not asserting them within twenty-one days after they received it.  Section 128.053(a) requires only that objections to an expert report be filed and served within twenty-one days; because Pogue’s report constituted no report at all under chapter 128, relators’ obligation to object was never triggered.” In re Wade, No. 02-18-00323-CV, 2018 Tex. App. LEXIS 10656, at *9 (App.—Fort Worth Dec. 20, 2018)

Jurisdiction: “Subject-matter jurisdiction is essential to a court’s authority to decide a case, cannot be waived, and may be raised for the first time on appeal. A. Inverse condemnation. The River Authority asserts for the first time on appeal that the Harris County district courts lack jurisdiction over the inverse-condemnation claims because the Harris County county civil courts at law have exclusive subject-matter jurisdiction over such claims pursuant to Government Code subsection 25.1032(c).” San Jacinto River Auth. v. Burney, Nos. 01-18-00365-CV, 01-18-00406-CV, 01-18-00407-CV, 2018 Tex. App. LEXIS 9891, at *4 (App.—Houston [1st Dist.] Dec. 4, 2018)

Jurisdiction: “The County argues for the first time on appeal that its governmental immunity has not been waived and the trial court lacks subject-matter jurisdiction over the claim because it did not receive notice of the claim against it within six months of “the day that the incident giving rise to the claim occurred,” as required by the TTCA. Tex. Civ. Prac. & Rem. Code § 101.101(a). “Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental [*9] entity.” Tex. Gov’t Code § 311.034. Subject-matter jurisdiction is essential to a court’s authority to decide a case, cannot be waived, and may be raised for the first time on appeal. Jefferson Cty. v. Farris, No. 01-17-00493-CV, 2018 Tex. App. LEXIS 10885, at *8-9 (App.—Houston [1st Dist.] Dec. 28, 2018)

Summary Judgment: “Houle contends on appeal as he did in the trial court that Trittipoe failed to demonstrate adequate personal knowledge underlying her testimony for proving up the attached Capital One business records. We have previously held that a lack of personal knowledge, reflected in the affiant’s testimony itself and not just as the lack of a formal recitation, is a defect of substance that may be raised for the first time on appeal.” Houle v. Capital One Bank (USA), N.A., No. 08-16-00234-CV, 2018 Tex. App. LEXIS 10538, at *14 (App.—El Paso Dec. 19, 2018)

On rare occasion, a court of appeals decides an error preservation issue based on whether the complaint at trial was sufficiently specific to make the trial court aware of the complaint. Here, we have several cases in which courts of appeals dealt with specificity on complaints involving retention of counsel, damages, discovery, evidence, and legal and factual sufficiency:


Attorney: “We hold Mother’s contention that the associate judge denied her right to due process for failing to allow her to retain counsel of her choice has not been preserved for our review. First, the record does not establish that Mother asked that she be permitted to retain counsel of her choosing or that she had the ability to do so at the time counsel made the oral motion. When the associate judge discussed the matter with counsel on the record, he specifically referenced appointment of new counsel. Mother’s appointed counsel made no reference to retention of counsel or any statement to that effect. Thus, Mother’s request was not sufficiently specific to make the trial court aware of her complaint, and the grounds were not apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A). Additionally, Mother’s request below does not comport with her complaint on appeal — requesting withdrawal of current appointed counsel and substitution of new appointed counsel [*9] versus requesting withdrawal of current appointed counsel and being given leave to find new retained counsel — thereby waiving appellate review.” In re R.L.L., No. 04-18-00240-CV, 2018 Tex. App. LEXIS 9526, at *8-9 (App.—San Antonio Nov. 21, 2018)

Attorney: “Finally, even a complaint that a party’s due process rights have been denied must be preserved by a proper objection or request. See In re C.J.P., No. 09-15-00370-CV, 2016 Tex. App. LEXIS 568, 2016 WL 240793, at *2 (Tex. App.—Beaumont Jan. 21, 2016, no pet.) (mem. op.); In re G.T., No. 04-16-00436-CV, 2016 Tex. App. LEXIS 13713, 2016 WL 7445037, at *1-*2 (Tex. App.—San Antonio Dec. 28, 2016, no pet.) (mem. op.); J.S. v. Tex. Dep’t of Family and Protective Servs., 511 S.W.3d 145, 156 (Tex. App.—El Paso 2014, no pet.); In re J.N., 2014 Tex. App. LEXIS 11101, 2014 WL 4978656, at *2. Mother did not, at any time in the courts below — either during the final hearing before the associate judge nor before the trial court during de novo review — make a constitutional objection or otherwise make either court aware that she was raising a due process claim based on the trial court’s failure to allow her to obtain retained counsel. Rather, before the associate judge, counsel for Mother merely announced not ready due to Mother’s arrest and then stated Mother had requested that “she get another attorney.” At the de novo hearing, when the trial court noted Mother had new counsel, the new attorney merely confirmed his appearance and substitution. He did not raise a complaint about a denial of Mother’s due process rights based [*10] on Mother’s request for “another attorney” before the final hearing in front of the associate judge. Thus, we hold Mother has not preserved her due process complaint for appellate review.” In re R.L.L., No. 04-18-00240-CV, 2018 Tex. App. LEXIS 9526, at *9 (App.—San Antonio Nov. 21, 2018)

Evidence: “To preserve an issue for appellate review, the complaining party must show that he made his complaint to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1). Fenlon’s general statements at the hearing before the tax master that Propel’s evidence did not support its claim and that Propel made errors in calculating the balance on the Note were not sufficiently specific to preserve any complaint concerning Propel’s evidence.” Fenlon v. Harris Cty., No. 01-17-00877-CV, 2018 Tex. App. LEXIS 10633, at *25 (App.—Houston [1st Dist.] Dec. 20, 2018)

Damages: “Cho asserts as an initial matter that, by permitting Kim and Lee to recover damages for both “Misapplication of initial investment” and “Construction Costs,” the trial court’s final judgment impermissibly grants Kim and Lee a double recovery. Kim and Lee contend that Cho waived any error with respect to this contention. We reject their waiver argument. . . . The arguments raised in Cho’s post-verdict motions preserve his double recovery argument for our review. In his new trial motion, Cho objected to the amounts the jury assessed for “Misapplication of initial investment” and “Construction [*40] Costs,” asserting that the dollar amounts were “excessive.” In his motion to modify, correct, or reform the final judgment, Cho challenged the final judgment’s award of damages for “Misapplication of initial investment” and “Construction Costs,” arguing that the damages award “violated the one-satisfaction rule.” Cho requested that the final judgment be corrected to reflect that Kim and Lee were entitled only to a single recovery. These arguments preserve the double recovery challenge Cho advances on appeal.” Cho v. Kun Sik Kim & Veronica Young Lee, No. 14-16-00962-CV, 2018 Tex. App. LEXIS 10871, at *38-40 (App.—Houston [14th Dist.] Dec. 28, 2018)

Discovery: “But POE did not assert the lack-of-relevance arguments in the trial court with the same specificity as it presents those arguments to this Court. For example, POE’s objections to the requests for production are general, form objections and do not explain how the requests are overly broad or why the requests fail “to contain reasonable subject-matter, temporal, and geographic limitations.” Similarly, POE did not explain in its motion to reconsider the associate judge’s first order why the requests seek irrelevant information. POE’s response to Torres’ second answer reiterates that the issue to be determined is whether there is substantial evidence to support the TWC decision and avers that the requests for production “have nothing to do with the extremely narrow issue before the Court-whether the TWC properly [*11] determined Plaintiff was an independent contractor rather than an employee.” POE did not, however, explain specifically that the requests seek irrelevant information because they relate to workers other than Torres and, as such, cannot support Torres’ arguments regarding her individual employment status.” In re Pursuit of Excellence, No. 05-18-00672-CV, 2018 Tex. App. LEXIS 10317, at *10-11 (App.—Dallas Dec. 13, 2018)

Factual Sufficiency: “Though Lott’s motion for new trial mischaracterized the basis for his attack on the damages questions, assertions that the evidence was “insufficient” or “against the great weight and preponderance of the evidence” are both generally classified as issues challenging the factual sufficiency of the evidence. See W. Wendell Hall, Standards of Review in Texas, 38 St. Mary’s L.J. 47, 261 (2006). Lott specifically identified the jury questions he contended were not supported by the evidence and asserted the evidence presented at trial did not support the damages award. Though the motion could have been more specific, we hold it was sufficient to preserve error on his factual sufficiency issues. See Superior Trucks, Inc. v. Allen, 664 S.W.2d 136, 145 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).” Lott v. Brown, No. 12-17-00093-CV, 2018 Tex. App. LEXIS 9676, at *8-9 (App.—Tyler Nov. 28, 2018)

Legal Sufficiency: “Likewise, we conclude Lott preserved his legal sufficiency issue. In his motion for new trial, Lott asserted the evidence conclusively proves, as a matter of law, that Brown was not entitled to recover damages related to the painting because Brown did not complete it and Lott did not accept the painting such as to obligate Lott to pay [*9] Brown under either a contractual or quantum meruit theory. Brown had the burden of proving the damages he sustained in Questions five and seven of the charge. Though Lott’s motion incorrectly labeled his attack “as a matter of law” rather than as a “no evidence” challenge, he identified the basis under which he contended the evidence did not legally support the jury’s award. As such, we conclude that Lott’s motion for new trial preserved error on his legal sufficiency point as to the damages questions.” Lott v. Brown, No. 12-17-00093-CV, 2018 Tex. App. LEXIS 9676, at *8-9 (App.—Tyler Nov. 28, 2018)

Here are several additional cases in which an appeals court held that parties preserved their complaints concerning attorney’s fees, contracts, evidence, the jury charge, valuations, visitation, and voir dire:


Attorney’s Fees: “American Dream requested attorney’s fees in its petition. At trial, its attorney testified as to its fees. After trial, American Dream included the fees that it had incurred through trial in its proposed judgment and discussed these fees in its supporting brief. This suffices to preserve for review American Dream’s challenge to the trial court’s complete denial of fees. See Tex. R. App. P. 33.1(a); Elliott v. Kraft Foods N. Am., 118 S.W.3d 50, 55 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (challenge to trial court’s denial of fees preserved by fee request at trial and inclusion of fees in proposed judgment).” KKR RV’s, LLC v. Anderson, No. 01-18-00178-CV, 2018 Tex. App. LEXIS 9901, at *7 (App.—Houston [1st Dist.] Dec. 4, 2018)

Contract: “Before we address the [*26] merits, we first consider the Fleming Firm’s contention that appellants did not preserve their argument in the trial court. At the pre-trial hearing, the trial judge initially indicated that he did not consider appellants to be beneficiaries of the MSA. Later, after trial commenced, appellants requested a specific ruling on whether they could present the MSA to the jury as a contract to which appellants were third-party beneficiaries. The Fleming Firm argued that appellants should not be allowed to proceed on their breach of the MSA claim, and the trial court “sustained” “the objection.” We construe the trial court’s ruling as overruling appellants’ request to proceed on their breach of the MSA theory. Accordingly, appellants preserved error on this point” Harpst v. Fleming, No. 14-17-00209-CV, 2018 Tex. App. LEXIS 10719, at *24-26 (App.—Houston [14th Dist.] Dec. 21, 2018)

Evidence: “Peterson contends that any complaint regarding her evidentiary burden is not preserved for our review because the City failed to object in the trial court. The record demonstrates otherwise. When arguing against the Rule 202 petition at the hearing thereon, the City’s counsel specifically complained that Peterson “offered no evidence for that petition.” Because the City alerted Respondent to the lack of evidence supporting Peterson’s petition, its complaint is preserved for appellate review. See Tex. R. App. P. 33.1.” In re City of Tatum, No. 12-18-00285-CV, 2018 Tex. App. LEXIS 10742, at *7 n.2 (App.—Tyler Dec. 21, 2018)

Jury Charge (Damages): “Appellants complain the damages submitted by the trial [*23] court in question four of the charge were an improper measure of damages for a negligent misrepresentation. n. 11 n. 11 Appellants preserved this complaint by objecting, during the charge conference, that appellees were not entitled to recover benefit-of-the-bargain damages, the “damages submissions” were “not pursuant to any statute, any case,” and the damage questions were “not in conformance with the law” and by challenging the measure of damages in their second amended motion for JNOV and their amended motion for new trial.” Inland W. Dall. Lincoln, Ltd. P’ship v. Nguyen, No. 05-17-00151-CV, 2018 Tex. App. LEXIS 10354, at *22-23 (App.—Dallas Dec. 14, 2018)

Valuations: “Ronald argues that he had no obligation to provide the trial court with evidentiary support to permit the trial court to determine a value of the community’s assets and to divide the community estate; he argues that he could rest on his valuation of “zero value” because of the lack of a market value. We disagree. Both parties had an obligation to provide the factfinder with evidence of the companies’ values. Murff, 615 S.W.2d at 698-99; Aduli, 368 S.W.3d at 820. Ronald, who handled the entities’ daily operations, was particularly in a position to provide the trial court with valuation information. He did not. Yet we cannot agree that his failure is equivalent [*28] to what occurred in the cases on which Karen relies, i.e., failing to appear, file an inventory, or respond to valuation questions. Accordingly, we hold that Ronald has not waived his ability to challenge the valuations on appeal.” Mathis v. Mathis, No. 01-17-00449-CV, 2018 Tex. App. LEXIS 10432, at *27-28 (App.—Houston [1st Dist.] Dec. 18, 2018)

Visitation: “The Department contends that the mother did not preserve [*12] the issue of visitation for review. We disagree. Darrington testified at trial that the child’s therapist believed that the adoptive mother should be able to have regular visitation. Based on this testimony, the mother’s counsel argued that the trial court should allow the mother to have contact with the child. We therefore reject the Department’s waiver argument and turn to the merits.” In the Interest of C.L.J.S., No. 01-18-00512-CV, 2018 Tex. App. LEXIS 9753, at *11-12 (App.—Houston [1st Dist.] Nov. 29, 2018)

Voir dire: “To preserve error related to the trial court’s denial of such a right, the party must make a timely request that makes clear—by words or context—the grounds for the request and obtain a ruling on that request, whether express or implicit. In re Commitment of Hill, 334 S.W.3d 226, 229 (Tex. 2011) (citing Tex. R. App. P. 33.1). Here, the topic was first addressed and ruled on as a ground in the State’s motion in limine, which preserved nothing for appellate review. However, immediately prior to voir dire, Appellant asked for clarification on questions for jury selection. The trial court stated, “Okay. So you can’t get into bestiality.” After the general voir dire questioning but before any challenges for cause were made, Appellant informed the trial court: ‘ And for the record, these were the questions on bestiality that we wanted to address with the venire panel. And it was simply the same questions along [*3] the lines: Is there anyone who would be uncomfortable discussing or listening to sexual acts with animals? And if so, will hearing such details affect your ability to consider this case objectively and follow the instructions of the Court in order to issue a fair and impartial decision?’ The trial court responded, “Okay,” and “All right. Thank you.” We cannot hold under these circumstances that Appellant failed to preserve this issue for review. Thus, we will address the merits of Appellant’s issue.” In re Porter, No. 11-18-00015-CV, 2018 Tex. App. LEXIS 10278, at *2-3 (App.—Eastland Dec. 13, 2018)

When you object to an instruction, on the same grounds you raise on appeal, which the trial court included in the charge, you will have preserved a complaint to that instruction:


Jury Charge: “Second, in response to the civil authorities, A.Z. argues that if a minor’s factual consent is relevant to compensatory damages, then Solis waived his challenge to the charge instruction because he did not request a separate instruction on A.Z.’s comparative fault or proportionate responsibility. This argument is fatally flawed. HN9 A minor cannot be at fault in her own statutory rape. Cf. In re B.W., 313 S.W.3d at 826 (holding that a thirteen-year-old girl cannot be charged with prostitution because children are the victims, rather than the perpetrators, of prostitution); Soliz v. State, 163 Tex. Crim. 508, 293 S.W.2d 662, 662 (Tex. Crim. App. 1956) (holding that the victim in a statutory rape is not an accomplice witness). Also, the waiver point is refuted by the record: Solis submitted a written objection that directly addressed this issue, and that objection [*20] was repeated during the charge conference.” Solis v. S.V.Z., No. 14-17-00162-CV, 2018 Tex. App. LEXIS 9458, at *19-20 (App.—Houston [14th Dist.] Nov. 20, 2018)

Your complaint must be timely:


Choice of Law: “And to the extent that appellants assert that they preserved their choice-of-law issue through their motion for judgment notwithstanding the verdict (“JNOV”), they did not. See DaimlerChrysler, 362 S.W.3d at 196-97 (post-trial motion raising choice-of-law issue untimely and did not preserve complaint). Accordingly, we hold that appellants have waived their choice-of-law complaint under Restatement (Second) of Conflict of Laws section 148(2).” Kubbernus v. ECAL Partners, Ltd., No. 01-16-00174-CV, 2018 Tex. App. LEXIS 10652, at *54 (App.—Houston [1st Dist.] Dec. 20, 2018)

Expert Report: “In response, Webster claims Dr. Rushing’s expert report adequately explained how Greenville’s delay in calling 911 breached the applicable standard of care and caused Robinson’s death “due to infarct.” Webster also responds that Greenville waived its right to object to Dr. Rushing’s expert report by issuing and responding to discovery. Webster’s argument Greenville waived its right to move to dismiss Webster’s claims by participating in discovery is without merit. HN6 “Attempting to learn more about the case through discovery does not demonstrate an intent to waive the right to dismiss[.]”” Greenville SNF, LLC v. Webster, No. 05-18-00038-CV, 2018 Tex. App. LEXIS 10760, at *14 (App.—Dallas Dec. 21, 2018)

Notice: “In issue six, Morgan complains that the trial court erred by permitting [*28] Dorrell to testify and provide evidence regarding attorney’s fees and sanctions, because Morgan did not receive forty-five days’ notice of a bench trial. In her cross-issue, Johnson-Todd contends that Morgan waived his complaint by failing to assert it before the hearing began on April 21, 2017. The record shows that Morgan did not object to a lack of notice during the April 21 hearing. The record further shows that the trial court recessed the April 21 hearing, and when the hearing resumed on April 28, 2017, Morgan then complained that he was entitled to forty-five days’ notice. The trial court overruled Morgan’s objection. Based on this record, we conclude that Morgan failed to preserve his complaint for our review. See Tex. R. App. P. 33.1.” Johnson-Todd v. Morgan, Nos. 09-17-00168-CV, 09-17-00194-CV, 2018 Tex. App. LEXIS 10617, at *27-28 (App.—Beaumont Dec. 20, 2018)

Visiting Judge: “As discussed above, the Collinses’ objection to the visiting judge was not timely, and the Collinses made no objection to the judge continuing to sit after she mistakenly signed an order granting the untimely objection. Cf. In re S.Q., No. 04-18-00119-CV, 2018 Tex. App. LEXIS 4688, 2018 WL 3129434, at *1 (Tex. App.—San Antonio June 27, 2018, pet. denied) (mem. op.) (“[A] party impliedly withdraws an objection by participating in a hearing or trial without advising the assigned judge that an objection has been filed and seeking a ruling.” (citing In re Carnera, No. 05-16-00055-CV, 2016 Tex. App. LEXIS 806, 2016 WL 323654, at *2 (Tex. App.—Dallas Jan. 27, 2016, orig. proceeding) (mem. op.))). The Collinses have therefore not preserved anything for review, and we overrule their second issue.” Collins v. D.R. Horton-Texas Ltd., No. 14-17-00764-CV, 2018 Tex. App. LEXIS 10614, at *9 (App.—Houston [14th Dist.] Dec. 20, 2018)

The complaint you make on appeal must be the same complaint you made at trial:


Arbitration: “In its third issue, Vapro contends the trial court erred in deciding the issue of arbitrability because the incorporation of the rules of the American Arbitration Association into the arbitration clause delegated the issue of arbitrability to the arbitrator. In their brief, the Zinks first respond that Vapro waived this issue by not raising it in the trial court. In its reply brief, Vapro argues that it raised the issue in its motion to compel; however, Vapro does not provide a record citation in support of this assertion, and we could not locate where the issue was raised in the motion. See Tex. R. App. P. 38.1(i) (providing arguments in briefs must be supported by appropriate citations to the record). In addition, at the hearing, Vapro’s attorney informed the trial court “we’ve got just one issue based upon Plaintiff’s response” and “the only issue as I interpret it before the Court is whether the employment agreement scope touches the controversy before the Court.” Accordingly, we agree Vapro waived its second issue. See Tex. R. App. P. 33.1(a);” Vapro Supply, LLC v. Zink, No. 04-18-00549-CV, 2018 Tex. App. LEXIS 10200, at *5 (App.—San Antonio Dec. 12, 2018)

Evidence: “First, Mother did not preserve this issue for our review. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1)(A). During Odiachi’s testimony about what Mother and Ann specifically told John about Sam’s injuries, Mother did not object to Odiachi’s testimony as to what Mother had told John to say about Sam’s injuries, only as to what Ann had said. Also, Mother failed to object each time Odiachi testified to John’s statements. Second, John’s statements to Odiachi, a professional counselor, during his counseling sessions were pertinent to Odiachi’s treatment of John and were not excludable as hearsay.” In the Interest of J.H., No. 02-18-00249-CV, 2018 Tex. App. LEXIS 9552, at *14 (App.—Fort Worth Nov. 21, 2018)

WARNING: I’ve not run this to ground, but typically exclusive jurisdiction is an issue which can first be raised on appeal. If you intend to rely on this case, you should independently confirm the accuracy of the holding.  Exclusive jurisdiction: “Court 7 was the court of continuing, exclusive jurisdiction and had the authority granted by the Texas Constitution and the government code to render judgment on the child support arrearage and sanctions. In Court 7, J.C.C. claimed Court 4 was the court of continuing jurisdiction and should have heard the child support arrears issue, unlike his present argument that the Title IV-D court had exclusive jurisdiction. J.C.C.’s objection in the trial court does not comport with his issue on appeal. As a result, he did not preserve error. See Tex. R. App. P. 33.1(a)(1);” In the Interest of L.D.C., No. 13-17-00053-CV, 2018 Tex. App. LEXIS 10244, at *11 (App.—Corpus Christi Dec. 13, 2018)

You have to comply with the pertinent rules:


Continuance: “Mother did not file a written motion for continuance. Her oral request on the day of trial is insufficient to preserve error for our review. See id. at 118 (concluding trial court did not abuse its discretion in denying pro se litigant’s motion for continuance when record did not contain written, verified motion);” In the Interest of C.F., No. 14-18-00509-CV, 2018 Tex. App. LEXIS 9888, at *25 (App.—Houston [14th Dist.] Dec. 4, 2018)

You must get a ruling on your complaint:


Discovery: “Appellants requested production of certain documents relating to the 35,000 “rejected” echocardiograms—i.e., the tests that did not meet the MDL court’s criteria for pursuing an opt-out, individual claim against Wyeth. According to appellants, the Fleming Firm refused to produce this evidence, so appellants filed a motion to compel. A motion to compel is included in our record, but we have not located a corresponding order ruling on the request. Appellants assert that “the trial court ruled that it would enter such an order but only on the condition that the Harpst [*31] Plaintiffs pay the Fleming Defendants’ attorneys’ fees incurred in monitoring the Harpst Plaintiffs while they examined these documents,” but appellants have not cited us to an order in the record. Instead, appellants rely upon their counsel’s declaration, which stated that “[d]uring the oral hearing [on the motion to compel], the Court agreed to order production and/or inspection of the requested documents, but only on the condition that the Plaintiffs pay for the Defendants’ attorneys’ fees in making them available.” Appellants’ counsel also stated in the declaration that he objected to the court’s ruling but was overruled. Again, we have reviewed the record and see no such rulings included in either the clerk’s record or reporter’s record. Because the record does not include a ruling adverse to appellants, nothing is presented for our review.” Harpst v. Fleming, No. 14-17-00209-CV, 2018 Tex. App. LEXIS 10719, at *30-31 (App.—Houston [14th Dist.] Dec. 21, 2018)

Jury Charge: “The jury returned, and the court gave a limiting instruction regarding the hearsay contained in the records Self reviewed in forming his opinion. On appeal, Nutt contends that the trial court erred in failing to give the limiting instruction when he initially requested it. Nutt’s complaint was not preserved for our review. In order to preserve a complaint for our review, the action or omission which is alleged as error or abuse of discretion on behalf of the trial court must have been the basis of a timely request, objection, or motion that specified the action that the trial court was requested to take, or to forbear from taking, and an adverse ruling must have been obtained. Tex. R. App. P. 33.1(a); Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). Here, Nutt initially requested a limiting instruction be given to the jury “prior to Dr. Self going into [*6] detail,” but he failed to obtain the relief requested, receive an adverse ruling, or object to the court’s failure to rule. See Tex. R.App. P. 33.1(a). Therefore, Nutt failed to preserve this issue for our review.” In re Nutt, No. 06-18-00058-CV, 2018 Tex. App. LEXIS 10372, at *5-6 (App.—Texarkana Dec. 18, 2018)

All for now.  I hope this helps.

Yours, Steve Hayes


Law Office of Steven K. Hayes

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Fort Worth, Texas   76102
Phone: 817/371-8759
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