August 4, 2021
Dearly Beloved:
Blame Randy Roach for whatever pain this causes you. Just like he put me off into the error preservation morass about 15 years ago through a CLE paper assignment, he suggested a week or two ago that I put together a list of error preservation decisions by the Texas Supreme Court during this fiscal year. So (assuming the Court issues no more opinions before the end of August), here you are. You’ve seen these all before, but correlating them by Issue and Type of Case might help you see certain patterns which might help you on some of your cases.
First, an overview:
Eleven opinions-including one in a case which involved propane and propane accessories (thanks, Jane Webre)-contained the Court’s 15 error preservation holdings this year.
The Prevalence of Family Law Cases: Four family law cases (one involving a no answer default judgment divorce, two involving parental right terminations, and one involving a non-termination aspect of the parent child relationship) generated seven–nearly half–of the Court’s error preservation rulings.
The Court’s Disinclination to Cite Rule 33.1: Only 5 of the Court’s preservation holdings–i.e., a third–this last year cited Rule 33.1–and Rule 33.1 was only mentioned in 2 of the 11 opinions. Four of the holdings which cited 33.1 came from the same parental right termination case.
Defendants Were Most Often the Party Claiming They Preserved a Complaint: In 12 of the 15 error preservation holdings (i.e., three-quarters of the Court’s preservation holdings), the Defendants argued they had preserved a complaint.
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- In Family Law Cases, Defendants Did Not Do Well in Preserving Error: Of the 12 holdings, six were in family law-type cases (three were in one parental right termination case, one was in another such case, one was in a case involving another aspect of the parent child relationship, and one was in a case involving a no answer default judgment divorce). None of these family law defendants preserved their complaint; only one raised a complaint which could first be raised on appeal.
- In Non-Family Law Cases, the Court Usually Held the Defendant Preserved Its Complaint: On the six non-family law cases in which defendants argued they preserves a complaint, the Court twice held that the defendants did preserve the complaint, twice held they did not, and twice held that the complaint could first be raised on appeal–i.e., defendants had their arguably unpreserved complaint considered on the merits two thirds of the time.
In Non-Family Law Cases, Plaintiffs Were Not Often the Party Arguing They Had Preserved Error. In the two non-family law holdings addressing complaints raised by Plaintiffs, the Court held that one Plaintiff preserved the complaint once, and failed to do so once.
Now, on to the cases!
Table of Contents
Issue
Affidavit (Family Law)
Constitution (Taxation)
Discovery (Personal Injury)
Expert (Products Liability)
Extension of Dismissal Date (Parental Right Termination)
Findings (Parental Right Termination)
Hearing (Notice, Record) (Parental Right Termination)
Jurisdiction (Taxation)
Jurisdiction (Ordinance)
Jury Charge (Workers Compensation)
Jury Charge (Products Liability)
Legal Sufficiency (Parental Right Termination)
Mootness (Parental Right Termination)
Statutory Requirements (Parental Right Termination)
Timeliness (Administrative Law)
Type of Case (and Issue)
Administrative Law
Timeliness
Family Law
Affidavit
Ordinances
Jurisdiction
Parent Child Relationship
Mootness
Parental Right Termination
Extension of Dismissal Deadline
Findings
Hearing (Notice, Record)
Legal Sufficiency
Statute
Personal Injury
Discovery
Products Liability
Expert
Jury Charge
Taxation
Constitution
Jurisdiction
Workers Compensation
Jury Charge
The Blurbs
Issue
Affidavit (Family Law): “The court of appeals assumed without deciding that Angel’s affidavit was not [*8] hearsay but affirmed the trial court on the ground that it could have excluded the affidavit because it was not properly sworn. 589 S.W.3d at 273. The appellate court reasoned that the affidavit was insufficient because the certification by the officer administering the oath was in Spanish and Angel provided no translation. Id.
An affidavit is ‘a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.’ Tex. Gov’t Code § 312.011(1). Oaths made outside the United States are valid if ‘administered and a certificate of fact given by . . . a notary public.’ Id. § 602.004. When providing an oath in a foreign language, the party should also tender a translated copy of the oath certificate. See Tex. R. Evid. 1009(a). This certification and its accompanying translated copy constitute a jurat. Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 316 (Tex. 2012) (per curiam) (‘A jurat is a certification by an authorized officer, stating that the writing was sworn to before the officer.’). And ‘[w]hen a purported affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the opposing party must object to this error, thereby [*9] giving the litigant a chance to correct the error.’ Id. at 317 (emphasis added). Such a problem in form, not substance, must be objected to in the trial court or else it is waived. See id.; see also Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam). Angelina did not raise this issue in the trial court nor present it to the court of appeals. The appellate court therefore erred in affirming based on a formal defect that was not preserved for review. 589 S.W.3d at 273.” In re Sandoval, 619 S.W.3d 716, 722-23 (Tex. 2021)
Constitution (Taxation): “As a preliminary matter, we note that Article XI section 9 is a distinct constitutional ground for exemption that is ‘self-operative,’ requiring no legislation to implement it. A&M Consol. Indep. Sch. Dist. v. City of Bryan, 143 Tex. 348, 184 S.W.2d 914, 915 (Tex. 1945). Odyssey did not exhaust its administrative remedies by asking the District for this exemption, nor did it raise Article XI section 9 in the trial court, assign the failure to grant that exemption as error in the court of appeals, or mention the exemption in its petition seeking this Court’s review. Rather, it raised the exemption for the first time in its merits brief after it had been addressed in an amicus brief. The issue of Odyssey’s entitlement to an Article XI section 9 exemption is therefore not properly presented for our review. Nevertheless, considering Article XI section 9 would not change the outcome of this case because that exemption—like Article VIII section 2 of the Constitution and Tax Code section 11.11—requires actual public ownership.” Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535 (Tex. 2021)
Dissent: “To preserve a complaint for appellate review, ‘a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefor, and obtain a ruling.’The stated grounds for the ruling must be made ‘with sufficient specificity to make the trial court aware of the complaint.’The rationale behind the preservation rules is that ‘[p]reservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.’ In essence, ‘the trial court should have the chance to rule on issues that become the subject of the appeal.’ Even so, rules of error preservation ‘should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.’ More to the point, a party is always ‘free to construct new arguments in support of issues properly before the Court.’…Section 11.11(a) of the Tax Code provides a tax exemption for property ‘owned by this state’ and ‘used for public purposes.’ Article 8 of the Constitution authorizes the Legislature to pass laws ‘exempt[ing] from taxation public property used for public purposes’. [*55] In the trial court, Odyssey raised claims under section 11.11 and Article 8 but not Article 11. Nevertheless, I conclude Odyssey’s Article 11 argument is fairly subsumed in these preserved claims because all three have ‘public purpose’ as an essential element. Because those issues were preserved in the courts below, Odyssey’s argument under Article 11 is essentially a new argument in support of issues properly before the Court, not a new issue that was not preserved.” Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535 (Tex. 2021) (Guzman, J., dissenting) (footnotes omitted).
Discovery (Personal Injury): “We conclude that K & L Auto has no adequate remedy by appeal both because it has effectively been denied a reasonable opportunity to develop a defense that goes to the heart of [*31] its case, and because a reviewing court will be unable to evaluate the effect of the trial court’s denial of discovery from the third-party providers… In addition, an appeal here would be inadequate because the missing discovery is from a third party and cannot be made part of the appellate record or challenged on appeal, and the providers will not be parties to any appeal. …Although Walker and the providers suggest that K & L Auto waived any complaint about the discovery becoming part of the record by failing to request that [*33] it be included in the record or subjected to an in camera review, our precedent has never required such a request….The question is whether the discovery can be made part of the appellate record, or whether a trial court refused a proper request to do so, and whether an appellate court can review the effect of the error…. Here, the discovery is not and cannot be part of the record although much of it is likely relevant and critical to the reasonableness of the medical charges, and it would be difficult, at best, to determine on appeal whether the lack of discovery erroneously affected the outcome of the trial. Taking into account the relevant circumstances, the claims and defenses asserted, the type of discovery sought, what it is intended to prove, and the presence or lack of other discovery, we conclude that K & L Auto has no adequate remedy here.” In re K & L Auto Crushers, No. 19-1022, 64 Tex. Sup. J. 1118, 2021 WL 2172535, 2021 Tex. LEXIS 427, at *30-33 (May 28, 2021)
Expert (Products Liability): “Expert testimony is not admissible when the underlying methodology, technique, or foundational data the expert uses is unreliable or when the testimony is not relevant to an issue the jury must decide. An objection to the admissibility of expert testimony must be sufficiently timely and specific to allow the court to exercise its role as the gatekeeper of the evidence. [citing Rule 33.1]
Before trial, Emerson and Fusite moved to exclude Russell’s testimony on several grounds, but none challenged Russell’s opinion about the compressor’s dangerousness. In this Court, Emerson and Fusite now argue that Russell failed to consider whether the compressor was unreasonably dangerous. They point to his pretrial affidavit in which, they contend, he does not discuss whether the danger associated with the compressor was an unreasonable one. This complaint does not comport with any of the challenges that Emerson and Fusite presented to the trial court. The trial court had no opportunity to consider whether Russell ‘used the wrong test’ as Emerson and Fusite advocate now. Accordingly, this claimed error in the admission of expert testimony is not preserved for our review.
We nevertheless examine this argument in the context of Emerson and Fusite’s legal-sufficiency challenge. In no-evidence challenges in their motions for directed verdict and judgment notwithstanding the verdict, they urged that the 600 series was not unreasonably dangerous. We uphold the jury’s finding if some evidence supports it.” Emerson Elec. Co. v. Johnson, No. 18-1181, 64 Tex. Sup. J. 691, 2021 WL 1432226, 2021 Tex. LEXIS 306, at *12 (Apr. 16, 2021) (footnotes omitted)
Extension of Dismissal Date (Parental Right Termination): “The court of appeals noted, ‘[i]t is undisputed [*8] the trial court did not grant an extension under [Family Code section 263.401] Subsection (b) or (b-1) [which has to do with extending the dismissal date on parental right termination cases].’ Id. at 546. It likely reached this conclusion because the Department did not argue in its appellee’s brief that an extension had been granted. Indeed, the Department first raised this argument in its motion for en banc reconsideration. Mother and Father contend this argument came too late, and is therefore waived.
Our rules regarding preservation are clear that, with limited exceptions, a party cannot obtain reversal of a trial court’s judgment on appeal based on an error that was never raised in the trial court. See Tex. R. App. P. 33.1(a), 53.2(f). But our rules provide little guidance about what is required to preserve an argument that would support the trial court’s judgment if the court of appeals reverses that judgment. We addressed this issue in Gilbert Texas Construction, L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010). There, a construction company was sued for breach of contract, and its liability insurer denied coverage. Id. at 123. The trial court concluded the claim was covered, but the court of appeals reversed, holding the claim fell within an exclusion. Id. In this Court, the insured challenged the court of appeals’ judgment on the bases that (1) the exclusion did not apply; and (2) even if it did, an exception to the [*9] exclusion brought the claim back into coverage. Id.
We began by addressing the insurer’s argument that the insured waived its argument about the inapplicability of the exclusion by failing to brief that issue in the court of appeals and instead presenting it for the first time in a motion for rehearing. Id. at 125. We held that, because the insured prevailed in the trial court, it did not need to raise this argument in its appellee’s brief in the court of appeals, and it did not waive the issue by failing to do so. Id. We concluded: ‘[A] complaint arising from the court of appeals’ judgment may be raised either in a motion for rehearing in that court or in a petition for review in this Court.’ Id.
We find this case indistinguishable from Gilbert. Here, the Department prevailed in the trial court, and therefore did not need to raise every argument supporting the trial court’s judgment in its appellee’s brief in the court of appeals. The Department’s complaint does not arise from any action of the trial court, but instead from the court of appeals’ judgment that the trial court’s jurisdiction terminated before it rendered the Final Decree. As we concluded in Gilbert, this complaint was not waived, [*10] but instead could be raised either in a motion for rehearing or a petition for review. See id.
In support of her waiver argument, Mother cites Texas Rule of Appellate Procedure 53.2(f), which governs the issues presented in a petition for review. Rule 53.2(f) states: ‘If the matter complained of originated in the trial court, it should have been preserved for appellate review in the trial court and assigned as error in the court of appeals.’ Tex. R. App. P. 53.2(f). But this rule does not help the parents’ waiver contention. Here, the Department’s complaint did not ‘originate[] in the trial court.’ Id. The Department obtained the relief it sought in the trial court, and thus had no reason to complain about the trial court’s extension of the dismissal date or the court’s subsequent Final Decree. Under Rule 53.2(f), there was nothing for the Department to preserve in the trial court and no error to assign in the court of appeals. Rather, the Department’s complaint regarding the failure to give effect to the extension of the dismissal date only arose in the court of appeals, when that court reversed the trial court’s judgment and vacated the Final Decree for lack of jurisdiction. Under these circumstances, the Department’s assertion of this argument both in a motion [*11] for rehearing and in its petition for review was timely. Accordingly, we reject the parents’ waiver argument. See Gilbert Tex. Constr., L.P., 327 S.W.3d at 125.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *7 (Apr. 30, 2021)
Findings (Parental Right Termination): “Here, the trial court held an oral hearing on the Department’s motion for continuance weeks before the initial dismissal date. No party filed a response opposing a continuance of the trial date or extension of the dismissal date. Indeed, the docket entry created on the date of the oral hearing reflects that the trial court granted the extension and that the parties agreed to the continuance of the trial. The parents now complain about the absence of written findings required by section 263.401(a). We note, first, that nothing in the record reflects the parents ever raised this complaint in the trial court. See Tex. R. App. P. 33.1. More importantly, the parents ignore that trial courts are empowered to make the section 263.401(a) findings in writing in a separate instrument or orally in the presence of a court reporter. [*20] Tex. Fam. Code § 101.026. Where, as here, the trial court held an oral hearing on the proposed extension and the parties failed to bring forth the record of that hearing on appeal, we will presume the trial court made the necessary findings to support the extension orally on the record at the hearing.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *19-20 (Apr. 30, 2021)
Hearing (Notice, Record) (Parental Right Termination): “We also reject the parents’ contention that the absence of a record of the hearing supports their claim that there was insufficient evidence to support the findings required by section 263.401(b). In the absence of a record, we presume the evidence was sufficient to support the trial court’s findings. See In re D.S., 602 S.W.3d 504, 510 n.9 (Tex. 2020). It is Mother and Father, not the Department, who are challenging the trial court’s extension of the dismissal date. It is thus the parents who bore the burden to bring forth on appeal a record to demonstrate the absence of evidence to support the required findings. See id. Moreover, to preserve their complaints about the absence of a record of the hearing, inadequate notice of the hearing, or the trial court’s purported failure to hold a hearing, the parents were required to raise these complaints in the trial court. They failed to do so, and these complaints are therefore waived. See Tex. R. App. P. 33.1.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *22 (Apr. 30, 2021)
Jurisdiction (Taxation): “Kinder Morgan argues that (1) the Taxing Units’ attorney was engaged as a “tax ferret” under unapproved—and therefore void—contingent-fee agreements, (2) a void contract cannot be ratified by the Taxing Units, so the attorney’s actions under the tax ferret contracts also cannot be ratified, and (3) the attorney’s filings on behalf of the Taxing Units were therefore ineffective to invoke the trial court’s jurisdiction. . . . Because this issue was raised for the first time on appeal, we consider only whether a jurisdictional impediment bars the Taxing Units’ judicial-review suit. To that end, we need not determine whether counsel is a tax ferret, whether any or all of the contingent-fee contracts are void for want of Comptroller or Attorney General approval, or whether counsel is disqualified from continued representation on that basis or any other because even if the contracts are void, that circumstance alone does not nullify the Taxing Units’ bona fide attempt to invoke the trial court’s jurisdiction over their appeal from the ARB’s order denying the challenge petitions. Accordingly, we assume, without deciding, that the Taxing Units engaged legal counsel under impermissible contingent-fee engagements.” Kinder Morgan SACROC, LP v. Scurry Cty., 622 S.W.3d 835 (Tex. 2021)
Jurisdiction (Ordinance): “With more rhetoric than logic, the City of Houston insists that City of Laredo should not be followed and was wrongly decided. The City dismisses our jurisdictional holding as dicta. But a jurisdictional holding can never be dicta because subject-matter jurisdiction must exist before we can consider the merits, a challenge to it cannot be waived, and “we have an obligation to examine our jurisdiction any time it is in doubt”. The City argues that City of Laredo is directly contrary to [*14] Morales, even though the sodomy statute at issue in Morales was never enforced, and the City of Laredo adopted its antilitter ordinance precisely to enforce it. The City argues that the City of Austin’s cemetery ordinance threatened the total destruction of the value of the challenger’s property, while the City of Laredo’s regulations posed much less of a threat to the property of the Merchants Association. But the threat of prosecution and the fines imposed in each situation were similar.” Tex. Propane Gas Ass’n v. City of Hous., 622 S.W.3d 791 (Tex. 2021)
Jury Charge (Workers Compensation): “Because Berkel properly preserved error by objecting to the trial court’s intentional-injury charge, we evaluate the sufficiency of the evidence against the charge the trial court should have given.” Berkel & Co. Contrs. v. Lee, 612 S.W.3d 280, 284 (Tex. 2020)
Jury Charge (Products Liability): “When a jury finds liability based on alternative claims, we may affirm on any legally valid ground of recovery that affords complete relief. In this case, in addition to finding Emerson and Fusite liable for a defective design, the jury also found Emerson liable for a marketing defect: that it failed to adequately [*28] warn of the risk of terminal venting. Both grounds for recovery afford the same relief. As we have rejected the challenges to Johnson’s design-defect claim, and recovery on his marketing-defect claim would not afford greater relief, we need not address Emerson’s challenges to the jury’s marketing-defect finding.
Citing Romero v. KPH Consolidation, Inc. in their reply brief, Emerson and Fusite nonetheless urge that we address Emerson’s challenges to the marketing-defect finding because the trial court submitted a single question allocating the percentage attributable to Fusite, Emerson, and Johnson for having ‘caused or contributed to cause the occurrence or injury.’ The jury’s apportionment of responsibility, they argue, might be different based on the type of liability found.
The touchstone for whether an objection preserves an issue for appeal is whether the litigant timely and plainly made the trial court aware of its complaint and obtained a ruling. In Romero, we expressly reserved the question of whether a defendant must object to both the lack of evidence supporting a claim and an apportionment question predicated on more than one ground of recovery. In that case, the defendants [*29] objected that the trial court improperly had predicated the apportionment question on an invalid ground.
In this case, Emerson and Fusite, which are affiliated entities, did not. Johnson’s proposed charge originally separated the apportionment question for Emerson’s marketing-defect liability and Emerson’s design-defect liability, but Emerson objected and insisted they be combined. Emerson never made the trial court timely and plainly aware of any Casteel-type error in the apportionment question. Having found the evidence sufficient to support one ground of recovery that affords complete relief, we decline to address an alternative ground.” Emerson Elec. Co. v. Johnson, No. 18-1181, 64 Tex. Sup. J. 691, 2021 WL 1432226, 2021 Tex. LEXIS 306, at *27-29 (Apr. 16, 2021)
Legal Sufficiency (Parental Right Termination): “After a jury trial, a legal-sufficiency challenge may be preserved in the trial court in one of the following ways: (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion for new trial. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985). Preservation of a factual-sufficiency challenge requires a motion for new trial. M.S., 115 S.W.3d at 547 (citing Tex. R. Civ. P. 324(b)(2)).” In the Interest of D.T., No. 20-0055, 64 Tex. Sup. J. 1562, 2021 WL 2603695, 2021 Tex. LEXIS 625, at *21 n.8 (June 25, 2021)
Mootness (Parental Right Termination): “Mother argues that section 262.201(o) is facially unconstitutional because it deprives parents of procedural due process rights to notice before the Chapter 262 hearing. Mother argues that the provision can never be applied constitutionally because it always operates to deprive notice to transient parents who lack stable housing. Mother also argues the provision is unconstitutional as applied to her because she was not served with citation, either personally or by publication, before the trial [*29] court issued a temporary order to remove her children. The court of appeals, addressing only Mother’s facial challenge, held the statute constitutional because ‘the statute’s plain language is permissive, not mandatory.’ 607 S.W.3d at 409.
We do not reach the merits of the Mother’s arguments, however, because the final order in the suit moots Mother’s constitutional challenges to the temporary order rendered pursuant to section 262.201(o).n. 15 n. 15 Courts may raise jurisdictional issues sua sponte for the first time on appeal. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993)).” In the Interest of J.J.R.S., No. 20-0175, 64 Tex. Sup. Ct. J. 1234, 2021 WL 2273722, 2021 Tex. LEXIS 446, at *28-29 (June 4, 2021)
Statutory Requirements (Parental Right Termination): “In sum, we conclude that, while a trial [*24] court’s failure to timely extend the automatic dismissal date before that date passes—through a docket-sheet notation or otherwise—is jurisdictional, claimed defects relating to the other requirements of 263.401(b) are not. Accordingly, with the exception of a trial court’s failure to extend the automatic dismissal date before it passes, complaints regarding the trial court’s compliance with the requirements in subsection (b) must be preserved for appellate review. Because the parents failed to preserve them in this case, we hold their complaints regarding the timing and form of the order resetting the trial and dismissal dates are waived. See Tex. R. App. P. 33.1.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *23-24 (Apr. 30, 2021)
Timeliness (Administrative Law): “The Commissioner argues that the Teachers filed inadequate ‘exceptions’ to the ALJ’s proposal for decision and thereby failed to preserve error. The relevant administrative rule, promulgated by the Texas Education Agency, provides: ‘The exceptions shall be specifically and concisely stated. The evidence relied upon shall be stated with particularity, and any evidence or arguments relied upon shall be grouped under the exceptions to which they state.’ 19 Tex. Admin. Code § 157.1059(e). The Commissioner found that the Teachers did not comply with this rule. The court of appeals reversed. The Commissioner argues in this Court that the Teachers’ exceptions were too vague to meet the rule’s specificity requirement. We agree with the court of appeals.
An agency must follow ‘the clear, unambiguous language of its own regulations.’ [*26] TGS—NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). Whatever the effect of non-compliance with section 157.1059(e) may be, the Teachers argue their exceptions to the PFD complied with it. We agree. The Teachers made sufficient objections to the PFD to preserve their complaints regarding the scorecards. They filed 32 exceptions set out in 133 paragraphs. The exceptions included arguments that reasonably match the contentions carried forward in this appeal, including the arguments we ultimately find dispositive. The exceptions contend that the date the Teachers received their scorecards is the relevant date for determining compliance with the ten-day deadline: ‘All of NEA Dallas’s arguments made in the grievance process pertained to the class members’ Scorecards, and the manner in which each teacher was appraised, [and therefore] were timely filed on October 2, 2015, within ten days of the teachers’ receipt of the Scorecards on September 18, 2015.’ The exceptions further argue that ‘[t]he claims made in NEA Dallas’s grievance were not ripe until the Scorecards were issued in the fall of 2015.’
These exceptions put the agency on sufficient notice that the Teachers intended to advance the arguments upon which we rely today. In promulgating its rule requiring [*27] specific exceptions, TEA itself stated that the purpose of requiring exceptions is simply ‘to ensure full presentation of all disagreements with the proposal for decision.’ 29 Tex. Reg. 6887, 6888 (2004) (General Provisions for Hearing Before the Commissioner of Education). The exceptions did not have to fully elaborate the Teachers’ argument. They adequately captured the essence of the timeliness argument the Teachers later advanced in more detail in the courts. This was sufficient to preserve error in this context.” Davis v. Morath, 624 S.W.3d 215 (Tex. 2021)
Type of Case
Administrative Law
Timeliness: “The Commissioner argues that the Teachers filed inadequate “exceptions” to the ALJ’s proposal for decision and thereby failed to preserve error. The relevant administrative rule, promulgated by the Texas Education Agency, provides: “The exceptions shall be specifically and concisely stated. The evidence relied upon shall be stated with particularity, and any evidence or arguments relied upon shall be grouped under the exceptions to which they state.” 19 Tex. Admin. Code § 157.1059(e). The Commissioner found that the Teachers did not comply with this rule. The court of appeals reversed. The Commissioner argues in this Court that the Teachers’ exceptions were too vague to meet the rule’s specificity requirement. We agree with the court of appeals.
An agency must follow “the clear, unambiguous language of its own regulations.” [*26] TGS—NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). Whatever the effect of non-compliance with section 157.1059(e) may be, the Teachers argue their exceptions to the PFD complied with it. We agree. The Teachers made sufficient objections to the PFD to preserve their complaints regarding the scorecards. They filed 32 exceptions set out in 133 paragraphs. The exceptions included arguments that reasonably match the contentions carried forward in this appeal, including the arguments we ultimately find dispositive. The exceptions contend that the date the Teachers received their scorecards is the relevant date for determining compliance with the ten-day deadline: “All of NEA Dallas’s arguments made in the grievance process pertained to the class members’ Scorecards, and the manner in which each teacher was appraised, [and therefore] were timely filed on October 2, 2015, within ten days of the teachers’ receipt of the Scorecards on September 18, 2015.” The exceptions further argue that “[t]he claims made in NEA Dallas’s grievance were not ripe until the Scorecards were issued in the fall of 2015.”
These exceptions put the agency on sufficient notice that the Teachers intended to advance the arguments upon which we rely today. In promulgating its rule requiring [*27] specific exceptions, TEA itself stated that the purpose of requiring exceptions is simply “to ensure full presentation of all disagreements with the proposal for decision.” 29 Tex. Reg. 6887, 6888 (2004) (General Provisions for Hearing Before the Commissioner of Education). The exceptions did not have to fully elaborate the Teachers’ argument. They adequately captured the essence of the timeliness argument the Teachers later advanced in more detail in the courts. This was sufficient to preserve error in this context.” Davis v. Morath, 624 S.W.3d 215 (Tex. 2021)
Family Law
Affidavit: “The court of appeals assumed without deciding that Angel’s affidavit was not [*8] hearsay but affirmed the trial court on the ground that it could have excluded the affidavit because it was not properly sworn. 589 S.W.3d at 273. The appellate court reasoned that the affidavit was insufficient because the certification by the officer administering the oath was in Spanish and Angel provided no translation. Id.
An affidavit is “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Tex. Gov’t Code § 312.011(1). Oaths made outside the United States are valid if “administered and a certificate of fact given by . . . a notary public.” Id. § 602.004. When providing an oath in a foreign language, the party should also tender a translated copy of the oath certificate. See Tex. R. Evid. 1009(a). This certification and its accompanying translated copy constitute a jurat. Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 316 (Tex. 2012) (per curiam) (“A jurat is a certification by an authorized officer, stating that the writing was sworn to before the officer.”). And “[w]hen a purported affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the opposing party must object to this error, thereby [*9] giving the litigant a chance to correct the error.” Id. at 317 (emphasis added). Such a problem in form, not substance, must be objected to in the trial court or else it is waived. See id.; see also Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam). Angelina did not raise this issue in the trial court nor present it to the court of appeals. The appellate court therefore erred in affirming based on a formal defect that was not preserved for review. 589 S.W.3d at 273.” In re Sandoval, 619 S.W.3d 716, 722-23 (Tex. 2021)
Ordinances
Jurisdiction: “With more rhetoric than logic, the City of Houston insists that City of Laredo should not be followed and was wrongly decided. The City dismisses our jurisdictional holding as dicta. But a jurisdictional holding can never be dicta because subject-matter jurisdiction must exist before we can consider the merits, a challenge to it cannot be waived, and “we have an obligation to examine our jurisdiction any time it is in doubt”. The City argues that City of Laredo is directly contrary to [*14] Morales, even though the sodomy statute at issue in Morales was never enforced, and the City of Laredo adopted its antilitter ordinance precisely to enforce it. The City argues that the City of Austin’s cemetery ordinance threatened the total destruction of the value of the challenger’s property, while the City of Laredo’s regulations posed much less of a threat to the property of the Merchants Association. But the threat of prosecution and the fines imposed in each situation were similar.” Tex. Propane Gas Ass’n v. City of Hous., 622 S.W.3d 791 (Tex. 2021)
Parent Child Relationship
Mootness: “Mother argues that section 262.201(o) is facially unconstitutional because it deprives parents of procedural due process rights to notice before the Chapter 262 hearing. Mother argues that the provision can never be applied constitutionally because it always operates to deprive notice to transient parents who lack stable housing. Mother also argues the provision is unconstitutional as applied to her because she was not served with citation, either personally or by publication, before the trial [*29] court issued a temporary order to remove her children. The court of appeals, addressing only Mother’s facial challenge, held the statute constitutional because “the statute’s plain language is permissive, not mandatory.” 607 S.W.3d at 409.
We do not reach the merits of the Mother’s arguments, however, because the final order in the suit moots Mother’s constitutional challenges to the temporary order rendered pursuant to section 262.201(o).n. 15 n. 15 Courts may raise jurisdictional issues sua sponte for the first time on appeal. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993)).” In the Interest of J.J.R.S., No. 20-0175, 64 Tex. Sup. Ct. J. 1234, 2021 WL 2273722, 2021 Tex. LEXIS 446, at *28-29 (June 4, 2021)
Parental Right Termination
Extension of Dismissal Deadline: “The court of appeals noted, “[i]t is undisputed [*8] the trial court did not grant an extension under [Family Code section 263.401] Subsection (b) or (b-1) [which has to do with extending the dismissal date on parental right termination cases].” Id. at 546. It likely reached this conclusion because the Department did not argue in its appellee’s brief that an extension had been granted. Indeed, the Department first raised this argument in its motion for en banc reconsideration. Mother and Father contend this argument came too late, and is therefore waived.
Our rules regarding preservation are clear that, with limited exceptions, a party cannot obtain reversal of a trial court’s judgment on appeal based on an error that was never raised in the trial court. See Tex. R. App. P. 33.1(a), 53.2(f). But our rules provide little guidance about what is required to preserve an argument that would support the trial court’s judgment if the court of appeals reverses that judgment. We addressed this issue in Gilbert Texas Construction, L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010). There, a construction company was sued for breach of contract, and its liability insurer denied coverage. Id. at 123. The trial court concluded the claim was covered, but the court of appeals reversed, holding the claim fell within an exclusion. Id. In this Court, the insured challenged the court of appeals’ judgment on the bases that (1) the exclusion did not apply; and (2) even if it did, an exception to the [*9] exclusion brought the claim back into coverage. Id.
We began by addressing the insurer’s argument that the insured waived its argument about the inapplicability of the exclusion by failing to brief that issue in the court of appeals and instead presenting it for the first time in a motion for rehearing. Id. at 125. We held that, because the insured prevailed in the trial court, it did not need to raise this argument in its appellee’s brief in the court of appeals, and it did not waive the issue by failing to do so. Id. We concluded: “[A] complaint arising from the court of appeals’ judgment may be raised either in a motion for rehearing in that court or in a petition for review in this Court.” Id.
We find this case indistinguishable from Gilbert. Here, the Department prevailed in the trial court, and therefore did not need to raise every argument supporting the trial court’s judgment in its appellee’s brief in the court of appeals. The Department’s complaint does not arise from any action of the trial court, but instead from the court of appeals’ judgment that the trial court’s jurisdiction terminated before it rendered the Final Decree. As we concluded in Gilbert, this complaint was not waived, [*10] but instead could be raised either in a motion for rehearing or a petition for review. See id.
In support of her waiver argument, Mother cites Texas Rule of Appellate Procedure 53.2(f), which governs the issues presented in a petition for review. Rule 53.2(f) states: “If the matter complained of originated in the trial court, it should have been preserved for appellate review in the trial court and assigned as error in the court of appeals.” Tex. R. App. P. 53.2(f). But this rule does not help the parents’ waiver contention. Here, the Department’s complaint did not “originate[] in the trial court.” Id. The Department obtained the relief it sought in the trial court, and thus had no reason to complain about the trial court’s extension of the dismissal date or the court’s subsequent Final Decree. Under Rule 53.2(f), there was nothing for the Department to preserve in the trial court and no error to assign in the court of appeals. Rather, the Department’s complaint regarding the failure to give effect to the extension of the dismissal date only arose in the court of appeals, when that court reversed the trial court’s judgment and vacated the Final Decree for lack of jurisdiction. Under these circumstances, the Department’s assertion of this argument both in a motion [*11] for rehearing and in its petition for review was timely. Accordingly, we reject the parents’ waiver argument. See Gilbert Tex. Constr., L.P., 327 S.W.3d at 125.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *7 (Apr. 30, 2021)
Findings: “Here, the trial court held an oral hearing on the Department’s motion for continuance weeks before the initial dismissal date. No party filed a response opposing a continuance of the trial date or extension of the dismissal date. Indeed, the docket entry created on the date of the oral hearing reflects that the trial court granted the extension and that the parties agreed to the continuance of the trial. The parents now complain about the absence of written findings required by section 263.401(a). We note, first, that nothing in the record reflects the parents ever raised this complaint in the trial court. See Tex. R. App. P. 33.1. More importantly, the parents ignore that trial courts are empowered to make the section 263.401(a) findings in writing in a separate instrument or orally in the presence of a court reporter. [*20] Tex. Fam. Code § 101.026. Where, as here, the trial court held an oral hearing on the proposed extension and the parties failed to bring forth the record of that hearing on appeal, we will presume the trial court made the necessary findings to support the extension orally on the record at the hearing.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *19-20 (Apr. 30, 2021)
Hearing (Notice, Record): “We also reject the parents’ contention that the absence of a record of the hearing supports their claim that there was insufficient evidence to support the findings required by section 263.401(b). In the absence of a record, we presume the evidence was sufficient to support the trial court’s findings. See In re D.S., 602 S.W.3d 504, 510 n.9 (Tex. 2020). It is Mother and Father, not the Department, who are challenging the trial court’s extension of the dismissal date. It is thus the parents who bore the burden to bring forth on appeal a record to demonstrate the absence of evidence to support the required findings. See id. Moreover, to preserve their complaints about the absence of a record of the hearing, inadequate notice of the hearing, or the trial court’s purported failure to hold a hearing, the parents were required to raise these complaints in the trial court. They failed to do so, and these complaints are therefore waived. See Tex. R. App. P. 33.1.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *22 (Apr. 30, 2021)
Legal Sufficiency: “After a jury trial, a legal-sufficiency challenge may be preserved in the trial court in one of the following ways: (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion for new trial. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985). Preservation of a factual-sufficiency challenge requires a motion for new trial. M.S., 115 S.W.3d at 547 (citing Tex. R. Civ. P. 324(b)(2)).” In the Interest of D.T., No. 20-0055, 64 Tex. Sup. J. 1562, 2021 WL 2603695, 2021 Tex. LEXIS 625, at *21 n.8 (June 25, 2021)
Statute: “In sum, we conclude that, while a trial [*24] court’s failure to timely extend the automatic dismissal date before that date passes—through a docket-sheet notation or otherwise—is jurisdictional, claimed defects relating to the other requirements of 263.401(b) are not. Accordingly, with the exception of a trial court’s failure to extend the automatic dismissal date before it passes, complaints regarding the trial court’s compliance with the requirements in subsection (b) must be preserved for appellate review. Because the parents failed to preserve them in this case, we hold their complaints regarding the timing and form of the order resetting the trial and dismissal dates are waived. See Tex. R. App. P. 33.1.” In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345, at *23-24 (Apr. 30, 2021)
Personal Injury
Discovery: “We conclude that K & L Auto has no adequate remedy by appeal both because it has effectively been denied a reasonable opportunity to develop a defense that goes to the heart of [*31] its case, and because a reviewing court will be unable to evaluate the effect of the trial court’s denial of discovery from the third-party providers… In addition, an appeal here would be inadequate because the missing discovery is from a third party and cannot be made part of the appellate record or challenged on appeal, and the providers will not be parties to any appeal. …Although Walker and the providers suggest that K & L Auto waived any complaint about the discovery becoming part of the record by failing to request that [*33] it be included in the record or subjected to an in camera review, our precedent has never required such a request….The question is whether the discovery can be made part of the appellate record, or whether a trial court refused a proper request to do so, and whether an appellate court can review the effect of the error…. Here, the discovery is not and cannot be part of the record although much of it is likely relevant and critical to the reasonableness of the medical charges, and it would be difficult, at best, to determine on appeal whether the lack of discovery erroneously affected the outcome of the trial. Taking into account the relevant circumstances, the claims and defenses asserted, the type of discovery sought, what it is intended to prove, and the presence or lack of other discovery, we conclude that K & L Auto has no adequate remedy here.” In re K & L Auto Crushers, No. 19-1022, 64 Tex. Sup. J. 1118, 2021 WL 217253, 2021 Tex. LEXIS 427, at *30-33 (May 28, 2021)
Products Liability
Expert: “Expert testimony is not admissible when the underlying methodology, technique, or foundational data the expert uses is unreliable or when the testimony is not relevant to an issue the jury must decide. An objection to the admissibility of expert testimony must be sufficiently timely and specific to allow the court to exercise its role as the gatekeeper of the evidence. [citing Rule 33.1]
Before trial, Emerson and Fusite moved to exclude Russell’s testimony on several grounds, but none challenged Russell’s opinion about the compressor’s dangerousness. In this Court, Emerson and Fusite now argue that Russell failed to consider whether the compressor was unreasonably dangerous. They point to his pretrial affidavit in which, they contend, he does not discuss whether the danger associated with the compressor was an unreasonable one. This complaint does not comport with any of the challenges that Emerson and Fusite presented to the trial court. The trial court had no opportunity to consider whether Russell “used the wrong test” as Emerson and Fusite advocate now. Accordingly, this claimed error in the admission of expert testimony is not preserved for our review.
We nevertheless examine this argument in the context of Emerson and Fusite’s legal-sufficiency challenge. In no-evidence challenges in their motions for directed verdict and judgment notwithstanding the verdict, they urged that the 600 series was not unreasonably dangerous. We uphold the jury’s finding if some evidence supports it.” Emerson Elec. Co. v. Johnson, No. 18-1181, 2021 Tex. LEXIS 306, at *12 (Apr. 16, 2021) (footnotes omitted)
Jury Charge: “When a jury finds liability based on alternative claims, we may affirm on any legally valid ground of recovery that affords complete relief. In this case, in addition to finding Emerson and Fusite liable for a defective design, the jury also found Emerson liable for a marketing defect: that it failed to adequately [*28] warn of the risk of terminal venting. Both grounds for recovery afford the same relief. As we have rejected the challenges to Johnson’s design-defect claim, and recovery on his marketing-defect claim would not afford greater relief, we need not address Emerson’s challenges to the jury’s marketing-defect finding.
Citing Romero v. KPH Consolidation, Inc. in their reply brief, Emerson and Fusite nonetheless urge that we address Emerson’s challenges to the marketing-defect finding because the trial court submitted a single question allocating the percentage attributable to Fusite, Emerson, and Johnson for having “caused or contributed to cause the occurrence or injury.” The jury’s apportionment of responsibility, they argue, might be different based on the type of liability found.
The touchstone for whether an objection preserves an issue for appeal is whether the litigant timely and plainly made the trial court aware of its complaint and obtained a ruling. In Romero, we expressly reserved the question of whether a defendant must object to both the lack of evidence supporting a claim and an apportionment question predicated on more than one ground of recovery. In that case, the defendants [*29] objected that the trial court improperly had predicated the apportionment question on an invalid ground.
In this case, Emerson and Fusite, which are affiliated entities, did not. Johnson’s proposed charge originally separated the apportionment question for Emerson’s marketing-defect liability and Emerson’s design-defect liability, but Emerson objected and insisted they be combined. Emerson never made the trial court timely and plainly aware of any Casteel-type error in the apportionment question. Having found the evidence sufficient to support one ground of recovery that affords complete relief, we decline to address an alternative ground.” Emerson Elec. Co. v. Johnson, No. 18-1181, 2021 Tex. LEXIS 306, at *27-29 (Apr. 16, 2021)
Taxation
Constitution: “As a preliminary matter, we note that Article XI section 9 is a distinct constitutional ground for exemption that is “self-operative,” requiring no legislation to implement it. A&M Consol. Indep. Sch. Dist. v. City of Bryan, 143 Tex. 348, 184 S.W.2d 914, 915 (Tex. 1945). Odyssey did not exhaust its administrative remedies by asking the District for this exemption, nor did it raise Article XI section 9 in the trial court, assign the failure to grant that exemption as error in the court of appeals, or mention the exemption in its petition seeking this Court’s review. Rather, it raised the exemption for the first time in its merits brief after it had been addressed in an amicus brief. The issue of Odyssey’s entitlement to an Article XI section 9 exemption is therefore not properly presented for our review. Nevertheless, considering Article XI section 9 would not change the outcome of this case because that exemption—like Article VIII section 2 of the Constitution and Tax Code section 11.11—requires actual public ownership.” Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535 (Tex. 2021)
Dissent: Dissent: “To preserve a complaint for appellate review, ‘a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefor, and obtain a ruling.’The stated grounds for the ruling must be made ‘with sufficient specificity to make the trial court aware of the complaint.’The rationale behind the preservation rules is that ‘[p]reservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.’ In essence, ‘the trial court should have the chance to rule on issues that become the subject of the appeal.’ Even so, rules of error preservation ‘should not be applied so strictly as to unduly restrain appellate courts from reaching the merits of a case.’ More to the point, a party is always ‘free to construct new arguments in support of issues properly before the Court.’…Section 11.11(a) of the Tax Code provides a tax exemption for property ‘owned by this state’ and ‘used for public purposes.’ Article 8 of the Constitution authorizes the Legislature to pass laws ‘exempt[ing] from taxation public property used for public purposes’. [*55] In the trial court, Odyssey raised claims under section 11.11 and Article 8 but not Article 11. Nevertheless, I conclude Odyssey’s Article 11 argument is fairly subsumed in these preserved claims because all three have ‘public purpose’ as an essential element. Because those issues were preserved in the courts below, Odyssey’s argument under Article 11 is essentially a new argument in support of issues properly before the Court, not a new issue that was not preserved.” Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535 (Tex. 2021) (Guzman, J., dissenting) (footnotes omitted).
Jurisdiction: “Kinder Morgan argues that (1) the Taxing Units’ attorney was engaged as a “tax ferret” under unapproved—and therefore void—contingent-fee agreements, (2) a void contract cannot be ratified by the Taxing Units, so the attorney’s actions under the tax ferret contracts also cannot be ratified, and (3) the attorney’s filings on behalf of the Taxing Units were therefore ineffective to invoke the trial court’s jurisdiction. . . . Because this issue was raised for the first time on appeal, we consider only whether a jurisdictional impediment bars the Taxing Units’ judicial-review suit. To that end, we need not determine whether counsel is a tax ferret, whether any or all of the contingent-fee contracts are void for want of Comptroller or Attorney General approval, or whether counsel is disqualified from continued representation on that basis or any other because even if the contracts are void, that circumstance alone does not nullify the Taxing Units’ bona fide attempt to invoke the trial court’s jurisdiction over their appeal from the ARB’s order denying the challenge petitions. Accordingly, we assume, without deciding, that the Taxing Units engaged legal counsel under impermissible contingent-fee engagements.” Kinder Morgan SACROC, LP v. Scurry Cty., 622 S.W.3d 835 (Tex. 2021)
Workers Compensation
Jury Charge: “Because Berkel properly preserved error by objecting to the trial court’s intentional-injury charge, we evaluate the sufficiency of the evidence against the charge the trial court should have given.” Berkel & Co. Contrs. v. Lee, 612 S.W.3d 280, 284 (Tex. 2020)
Absent more opinions from the Court in the next few weeks, that’s it for this year (as far as I know). If you see something I’ve missed, let me know.
Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com