Error Preservation in the Texas Supreme Court: I’m a day late and a dollar short

November 24, 2023

Dear All:

The pesky day job finally took over my life last Spring, and I had no time to blog on error preservation.  I can’t catch up, but I can at least provide error preservation rulings from the Texas Supreme Court since about last March or so.

Table of Contents

The Supreme Court does not often weigh in on error preservation, so when it does we need to take note of its rulings–and to take note of concurrences, joined by a number of the justices, which discuss preservation

Amended Pleading/Class Certification
Class Certification
Denial of Reporter’s Record
Elections (Timeliness
Extraordinary Circumstances Finding
Irreconcilably Conflicting Jury Answers (A Confirmation and A Surprise!)
Jury Charge
Responsible Third Party

Finally, a Court of Appeals Opinion that does not involve preservation, but bears attention: Motion for New Trial/Timeliness/Party’s Own Computer Problem


The Supreme Court does not often weigh in on error preservation, so when it does we need to take note of its rulings–and to take note of concurrences, joined by a number of the justices, which discuss preservation:

Amended Pleading/Class Certification: “Finally, Mosaic argues that the trial court failed to conduct the required rigorous analysis because the class certification order did not list or analyze the elements of Mosaic’s defenses. Cessor responds that the defenses were raised in a late amended answer submitted without leave of court three days before the certification hearing, and Mosaic did not bring them to the trial court’s attention in connection with the motion for class certification, as our rules required it to do…. Yet we have held that leave to amend a pleading should be presumed in certain circumstances. Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490-91 (Tex. 1988) (per curiam). And as we explain in the Simien opinion issued today, our rules require a trial court to address all live defenses in connection with class certification, and the court’s failure to do so is an abuse of discretion that is harmful by its nature. See Mosaic Baybrook One, L.P. v. Simien, S.W.3d , , 2023 Tex. LEXIS 342 (Tex. Apr. 21, 2023) (Nos. 19-0612, 21-0159). We must decide how these principles apply here….Because Cessor has not raised an objection to Mosaic’s late amended answer in the trial court, that court ‘ha[d] no discretion to refuse’ to consider the defenses therein [*33] when it ruled on the motion for class certification. Greenhalgh, 787 S.W.2d at 939. Both parties had a responsibility to assist the court in this task by bringing the defenses to its attention at the class certification hearing and framing their disputes about how the certification requirements apply to those defenses. But under our precedent applying Rule 63, Cessor’s failure to object to Mosaic’s late amended answer means that the defenses were part of the pleadings for purposes of the Rule 42 certification analysis….. And by opposing class certification, Mosaic made the trial court aware of the need to address those defenses if it certified a class. Simien, S.W.3d at , 2023 Tex. LEXIS 342; see Tex. R. App. P. 33.1.” Mosaic Baybrook One, L.P. v. Cessor, No. 21-0161, 2023 Tex. LEXIS 346, at *32-33 (Apr. 21, 2023)

Class Certification: “‘[A] trial plan is required in every certification order to allow reviewing courts to assure that all requirements for certification under Rule 42 have been satisfied.’ Lopez, 156 S.W.3d at 556. ‘The formulation of a trial plan assures that a trial court has fulfilled its obligation to rigorously analyze all certification prerequisites, and ‘understands the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.’’ Id. (quoting Bernal, 22 S.W.3d at 435).

‘Rule 42 does not require adoption of a trial plan as a mere formality; rather, . . . the rule requires a rigorous analysis and a specific explanation of how class claims are to proceed to trial.’ Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 689 (Tex. 2002). ‘A trial court’s certification order must indicate how the [*57] claims will likely be tried so that conformance with Rule 42 can be meaningfully evaluated.’ Bernal, 22 S.W.3d at 435.

Here, the parties dispute whether Mosaic properly preserved a complaint about the trial court’s compliance with Rule 42(c)(1)(D), as well as whether such complaints are subject to harmless-error review even when preserved. We agree with Mosaic that it was not required to make any additional post-certification objections in the trial court to preserve for appellate review an error in omitting one of its defenses. Mosaic raised the defenses in a timely answer and opposed class certification, which made the trial court aware of the need to address those defenses if it certified a class. See Tex. R. App. P. 33.1(a).” Mosaic Baybrook One, L.P. v. Simien, Nos. 19-0612, 21-0159, 2023 Tex. LEXIS 342, at *56-57 (Apr. 21, 2023)

Denial of Reporter’s Record (A concurring opinion, joined by three other justices): “This petition for writ of mandamus contends that the trial court abused its discretion when it refused to permit a court reporter to transcribe a hearing. I concur with the Court’s denial of the petition with two brief observations.
First, our decision to deny mandamus relief should not be taken to endorse the denial of a party’s request for a court reporter. To the contrary, Texas law mandates that a court reporter transcribe proceedings upon a party’s request. [Code, Rule and case cited]….Even so, it sometimes happens that parties and counsel arrive at the courthouse for a hearing only to learn that the court reporter is unavailable (at lunch, in another proceeding down the hall, what have you), and the trial judge intends to proceed without one. What to do?
That brings me to my second point. As with any error, a complaint about the lack of a court reporter must be properly preserved. “As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . .” TEX. R. APP. P. 33.1(a) (emphases added). Here, nothing in the record shows that relator asked the trial court for a reporter or objected to the reporter’s absence. Relator instead relies on affidavits describing what happened at the hearing that were created for this mandamus proceeding and attached to her petition, along with a copy of an email requesting a court reporter that relator’s counsel avers was sent to the court coordinator before the hearing. None of this was filed with the trial court, and this Court does not consider materials attached to a petition in the first instance….
How to preserve a complaint about the lack of a court reporter is not self-evident—after all, it is the reporter who usually creates the official record of the proceeding. Fortunately, the Rules of Appellate Procedure tell us the answer: file a formal bill of exception and follow
the steps in Rule 33.2 to ensure that the bill of exception gets included in the record. See TEX. R. APP. P. 33.2. Relator here did not comply with Rule 33.2, nor did she file any other motion or written objection with the trial court that might have preserved her complaint….Relator’s failure to preserve her complaint for our review justifies denial of mandamus relief.” Case No. 23-0319, In re Beverly Kotsanis, Relator (Hubble, J., Concurring, joined by Justices Busby, Bland, and Young).

Elections (Timeliness): “At the outset, the City contends that Hotze has waived his state law challenge to the primacy clause or is estopped from raising it…. The City argues that a voter’s exclusive remedy for challenging a charter amendment’s effectiveness is through an election challenge. The City suggests that Hotze’s claim for Proposition 2’s enforcement is, in essence, a challenge to the ballot language or ballot preparation because the primacy clause, though part of the election ordinance, is not incorporated into the adopted charter amendment. Thus, it argues, the true nature of Hotze’s claim for enforcement of Proposition 2 is an election challenge, which a voter must bring within thirty days of the election….

The City’s waiver argument lacks merit. Constitutional challenges to invalid municipal lawmaking are not confined to election contests. Election contests are appropriate for challenging irregularities in the election process that cause the final canvass to reflect results other than “the true outcome” of the election…. We also have recognized a timely filed election contest as the proper mechanism to challenge deceptive or misleading ballot language.” Hotze v. Turner, No. 21-1037, 66 Tex. Sup. Ct. J. 708, 2023 Tex. LEXIS 344, at *8 (Apr. 21, 2023)

Extraordinary Circumstances Finding: “…we conclude that Mother did not timely apprise the trial court of her complaint that it failed to make the required “extraordinary circumstances” finding when it extended the automatic dismissal deadline. Therefore, she [*30] could not present that complaint for appellate review. See Tex. R. App. P. 33.1(a). And the court of appeals erred in raising this non-jurisdictional issue sua sponte. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020).

The record of the February 8 hearing shows that Mother did not mention the “extraordinary circumstances” finding, much less bring the failure to make the finding to the trial court’s attention. When the court asked if there were any objections to the Department’s motion for an extension of the automatic dismissal deadline to accommodate Mother’s jury trial request, Mother’s counsel answered “no.” Yet even if Mother had opposed the extension, that would not have made the trial court aware that she had a complaint regarding the missing finding.16 [16 We need not and do not decide today whether a parent who opposes an extension must bring the missing finding to the trial court’s attention before the initial dismissal deadline, or whether doing so during trial court proceedings that occur after the deadline is sufficient to preserve the complaint for appellate review.] The trial court asked three times at the hearing—twice after granting the extension—whether there was “anything else” the parties needed it to consider at the hearing. Mother’s counsel answered “no” once, and Mother did not bring the missing finding to the trial court’s attention either during or after the hearing. Because Mother did not object to the trial court’s failure to comply with the non-jurisdictional findings requirement prior to the initial automatic dismissal deadline, that error cannot [*31] be addressed for the first time on appeal….

Holding otherwise in this case would penalize the trial court for doing its best to honor the parents’ last-minute requests for a jury trial, “‘a substantive liberty guarantee of fundamental importance’ that holds ‘a sacred place in English and American history.'”…. Trial courts should not fear reversal when they grant a parent’s last-minute jury trial request and fail to use the magic words “extraordinary circumstances” in discussing the resulting logistical difficulties. Nothing in Section 263.401 requires that oral findings of extraordinary circumstances and best interest be stated in precisely those terms. See F.S., 667 S.W.3d 411, 2022 WL 4371008, at *6.

For these reasons, we hold that Mother did not preserve a complaint that the trial court failed to make an express finding of extraordinary circumstances when it extended the automatic dismissal deadline. The court of appeals therefore erred in rendering a judgment of dismissal on the ground that the trial court lost jurisdiction on the automatic dismissal date.” In re J.S., No. 22-0420, 66 Tex. Sup. Ct. J. 1145, 2023 Tex. LEXIS 527, at *29-31 (June 16, 2023)

Immunity: “At oral argument, Quinlan’s counsel appeared to also argue—for the first time—that the obstructing tables and chairs were actually located off the permitted premises and on the portion of the sidewalk solely controlled by the City. This allegation does not appear in Quinlan’s live pleading, her response to the City’s plea to the jurisdiction, her briefing in the court of appeals, or even her briefing in this Court. Accordingly, we decline to consider it as a basis for waiving the City’s immunity. See Tex. R. App. P. 33.1.” City of Austin v. Quinlan, No. 22-0202, 66 Tex. Sup. Ct. J. 996 n.2, 2023 Tex. LEXIS 459, at *8 (June 2, 2023)

Irreconcilably Conflicting Jury Answers (A Confirmation and A Surprise!): “But here, of course, the trial court willingly accepted the burden of a new trial despite plaintiffs’ failure to timely identify the alleged irreconcilability. The lack of a timely objection to a jury’s discharge may deprive a party of an appellate point, but it does not deprive the trial court of the authority to grant a new trial if the court concludes that the irreconcilability of a verdict prevents the rendition of a reliable judgment. Indeed, a trial court could come to that conclusion on its own, regardless of what the parties think. If a trial court grants a new trial on the ground of irreconcilability, the appellate courts will be able to review that order under the standards in this Court’s precedents.

It is on this understanding that we review the new-trial order here. Plaintiffs’ failure to timely invoke irreconcilability, in other words, is not the concern; we instead focus on whether deeming the verdict irreconcilable constituted legal error. We find that it was error, and thus incapable of supporting a new-trial order, [*21] because the law already provides for harmonizing the verdict.

A legally sound reconciliation is the duty of the court, which must “reconcile . . . jury findings if at all possible.” Huber v. Ryan, 627 S.W.2d 145, 145 (Tex. 1981). Although a party must object to discharging the jury to preserve its right to demand a new trial on this ground on appeal, no such objection is required for a party to insist that, when it renders a judgment, the court perform the legal duty of reconciling a verdict.” In re Rudolph Auto., LLC, No. 21-0135, 66 Tex. Sup. Ct. J. 1111, 2023 Tex. LEXIS 524, at *20-21 (June 16, 2023)

Jury Charge: “We note that this case does not present an issue of whether KC Southern preserved its objection to the trial court’s error. KC Southern objected that there was a Casteel-type defect in the form of the negligence question because the humped-crossing theory was preempted, and the missing-yield-sign theory was not supported by the evidence. Although this objection was sufficient to make the court aware of its complaint, KC Southern also tendered an alternative charge that separated the theories.” Houser v. Kan. City S. Ry. Co., No. 21-0769, 2023 Tex. LEXIS 635, at *46 n.20 (June 30, 2023)

Responsible Third Party: “Finally, we consider the responsible-third-party issue. Before trial, Gregory and New Prime sought to designate several responsible third parties, including ATG, Danfreight, CDO, and each of their drivers. At the request of Deol’s family, the trial court struck the designations before trial and later reaffirmed its ruling after presentation of the evidence….In this Court, the defendants complain only about the exclusion of ATG as a responsible third party….They reason that if Gregory was responsible for Deol’s death because her negligence created an obstructed road ultimately causing a later collision that killed Deol, then ATG’s driver must likewise be at least partly responsible because the later, deadly collision was not unavoidable until the ATG driver’s negligence resulted in a total obstruction of the road.19 [19 Chohan contends that Gregory and New Prime waived this objection because, at the charge conference, they objected to ATG’s exclusion from the jury questions pertaining to the Vasquez and Perales parties but made no objection about the questions directed at Deol. We disagree. Gregory and New Prime designated ATG as a responsible third party, opposed the plaintiffs’ motion to strike the designation on the record, moved for reconsideration multiple times after the first attempt was unsuccessful, and obtained a ruling on the record. There are six pages of the reporter’s record dedicated to back-and-forth argument on this point. The Texas Rules of Appellate Procedure require that the record reflect a timely objection stating the grounds for the ruling sought and a ruling on the request. Tex. R. App. P. 33.1(a). Gregory and New Prime’s preservation efforts satisfy those procedural requirements.” Gregory v. Chohan, No. 21-0017, 2023 Tex. LEXIS 528, at *38 n.19 (June 16, 2023)

Standing: I write a word of emphasis on this. Since about Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993) (about which the late Professor Wayne Scott routinely would complain), “standing” has been considered a jurisdictional issue which could first be raised on appeal. Later, the Court distinguished “the authority of a partner to recover for” an injury to its partnership interest from “a matter of constitutional standing that implicates subject-matter jurisdiction.” Pike v. Texas EMC, 610 S.W.3d 763, 775 (Tex. 2020). And in this recent case, without mentioning Tex. Ass’n. of Bus., the Supreme Court has discussed another version of standing which it will not first consider on appeal, at least under certain circumstances. “We need not consider whether the State has properly framed this inquiry as involving a question about PLH’s standing. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 774, 778 (Tex. 2020) (‘[A] plaintiff does not lack standing in its proper, jurisdictional sense simply because he cannot prevail on the merits of his claim; he lacks standing [when] his claim of injury is too slight for a court to afford redress.’ [*16] (internal citations omitted)). Even if the issue implicates subject-matter jurisdiction, see Tex. Gov’t Code § 311.034, we decline to consider it for the first time on appeal because TSU has not conclusively established either that PLH had a full and fair opportunity to develop the record in the trial court and amend their pleadings or that it would be unable to do so on remand, see Rusk State Hosp. v. Black, 392 S.W.3d 88, 100 (Tex. 2012).” Pepper Lawson Horizon Int’l Grp., LLC v. Tex. S. Univ., No. 21-0966, 66 Tex. Sup. Ct. J. 955, 2023 Tex. LEXIS 419, at *15-16 (May 19, 2023)

Finally, a Court of Appeals Opinion that does not involve preservation, but bears attention: Motion for New Trial/Timeliness/Party’s Own Computer Problem:

The Court provided the following summary of its opinion: “Held: Appellant’s localized computer problem—its discovery that its electronic motion for new trial had become corrupted—occurred prior to Appellant’s transmission of its motion to the e-filing service provider, and the corrupted file had nothing to do with the trial court or e-filing service provider, so the issue was not a “technical failure” that could support deeming the motion timely under Texas Rule of Civil Procedure 21(f)(6). Because Appellant did not “transmit [its motion for new trial] to the filing party’s electronic filing service provider” within “thirty days after the judgment . . . [wa]s signed,” Tex. R. Civ. P. 21(f)(5), 329b(a), because the trial court could “not enlarge the period for taking any action under the rules relating to new trials,” Tex. R. Civ. P. 5, and because the motion for new trial could not be deemed timely based on a “technical failure,” Tex. R. Civ. P. 21(f)(6), the motion for new trial was untimely, see Tex. R. Civ. P. 329b(a), and Appellant’s subsequent notice of appeal was similarly untimely, see Tex. R. App. P. 26.1.” Allstate Fire & Cas. Ins. Co. v. Dollard, No. 02-22-00289-CV (Oct. 19, 2023) (Sudderth, C.J., joined by Birdwell and Walker, JJ.).

All for now.  Y’all have a great weekend.

Yours, Steve Hayes



Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
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