February 5, 2020
Dear All:
Ever thought about whether you could first raise a vexatious litigant complaint on appeal? Me either.
Table of Contents
Some complaints may first be raised on appeal–including, as I may be the last to know, whether the vexatious litigant statute bars an appeal
Vexatious Litigant
The complaint you make on appeal must be one you raised in the trial court, and not some additional complaint
Attorney’s Fees
Evidence
Your complaint must be timely
Jury Charge
The Blurbs
Some complaints may first be raised on appeal–including, as I may be the last to know, whether the vexatious litigant statute bars an appeal:
Vexatious Litigant: “ Civil Practice and Remedies Code section 11.103(a) states, “a clerk of a court may not file a litigation, original proceeding, appeal, or other claim presented, pro se, by a vexatious litigant subject to a prefiling order under Section 11.101 unless the litigant obtains an order from the appropriate local administrative judge described by Section 11.102 (a) permitting the filing.” Tex. Civ. Prac. & Rem. Code Ann. § 11.103(a) (emphasis added). The Code Construction Act states, “‘May not’ imposes a prohibition and is synonymous with ‘shall not.'” Tex. Gov’t Code Ann. § 311.016(5). Civil Practice and Remedies Code section 11.1035(a) states, “If the clerk mistakenly files litigation presented, pro se, by a vexatious litigant subject to a prefiling order under Section 11.101 without an order from the appropriate local administrative judge described by Section 11.102 (a), any party may file with the clerk and serve on the plaintiff and the other parties to the litigation a notice stating that the plaintiff is a vexatious litigant required to obtain permission under Section 11.102 to file litigation.” Tex. Civ. Prac. & Rem. Code Ann. § 11.1035(a) (emphasis added). The Code Construction Act states, “‘May’ creates discretionary authority or grants permission or a power.” Tex. Gov’t Code Ann. § 311.016(1).
While it would have been preferable for appellee to have filed a notice with the clerk at trial stating that the plaintiff is a vexatious litigant subject to a prefiling order, chapter 11 neither sets a time limit for filing such notice, nor places a requirement on other parties; instead, chapter 11 prohibits the clerk from filing a litigation, original proceeding, appeal, or other claim presented by a vexatious pro se litigant subject to a prefiling order. Tex. Civ. Prac. & Rem. Code Ann. § 11.103(a). Accordingly, there is no complaint that should have been made to the trial court that requires preservation as a prerequisite for presenting a complaint for appellate review. See Tex. R. App. P. 33.1(a).” [Appellant] v. Cent. Hous. Nissan, No. 14-19-00506-CV, 2021 Tex. App. LEXIS 841, at *1 n.4 (Tex. App.—Houston [14th Dist.] Feb. 4, 2021)
The complaint you make on appeal must be one you raised in the trial court, and not some additional complaint:
Attorney’s Fees: “”Parties are restricted on appeal to the theory on which the case was tried.” Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015). Moreover, if no objection was made that matches the complaint on appeal, then the issue has not been preserved for appellate review. See Tex. R. App. P. 33.1(a); Martinez Jardon v. Pfister, 593 S.W.3d 810, 831 (Tex. App.—El Paso 2019, no pet.). Complaints that attorney’s fees were not recoverable either by statute or by other basis may be waived on appeal if no such objection was properly made in the trial court. . . . Nevertheless, despite these restrictions on appellate review, it is further recognized that a complaint about the legal or factual sufficiency of the evidence to support an award of fees may be raised for the first time on appeal in a civil nonjury case. See Tex. R. Civ. P. 324(a), (b); Tex. R. App. P. 33.1(d); . . . . In his responsive pleading filed with the court below, Mortensen opposed the fee request of Villegas but not that of Ramirez. And, in doing so, his pleading simply argued that “$10,000 in ‘reasonable attorney fees’ is not based on the realities in this case . . . .” As the hearing below nearly concluded, the probate court indicated it had no jurisdiction over the claims asserted given that Mortensen lacked standing in the estate. Thereafter, the court indicated it would allow the attorneys representing Ramirez and Villegas to submit their bills for having to, once again, defend the suit brought in that court. [*19] At this point, Mortensen lodged no objection to the award of fees. The court then granted both motions to dismiss. Shortly thereafter, as reflected by the dismissal order dated February 19, 2019, invoices were submitted from movants’ attorneys which reflected fees of $4,500 billed to Ramirez, and $3,375 billed to Villegas. The probate court’s dismissal order includes a separate award of fees to each movant corresponding to the invoices submitted. Mortensen filed no post-hearing motion for new trial.
In his appellate briefing, Mortensen advances a variety of arguments challenging the probate court’s award of fees to Ramirez and Villegas. In general terms, he contends the fees were not recoverable pursuant to any statutory authority based on the type of suit at issue and further argues the fees awarded were “an excessive fine” in violation of the U.S. and Texas Constitutions. More pointedly, he further asserts that the probate court erred by awarding fees to Ramirez and Villegas given that the fees sought by their respective motions were not of the kind or type permitted by section 38.001 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (listing what types of claims are allowed for the recovery of attorney’s fees). Because Mortensen failed [*20] to properly and timely object in the probate court that the fees lacked a legal basis, he failed to preserve error on that basis and we do not otherwise decide that issue. See Tex. R. App. P. 33.1(a); ” Mortensen v. Villegas, No. 08-19-00080-CV, 2021 Tex. App. LEXIS 747, at *16-20 (Tex. App.—El Paso Feb. 1, 2021)
Evidence: “Chad states, without citation to the record, that he sought to have the phone admitted so that he could use it to cross-examine Grace and other witnesses concerning the allegation that Chad had manipulated some of its contents. But Chad did not tender the phone into evidence in his own case-in-chief. Rather, he tendered it well after he had completed his cross-examinations of Grace and each of her witnesses. The more significant problem, though, is that Chad failed to preserve this argument for our review.
To preserve error for appellate review, a party must make a timely request to the trial court that states [*17] the grounds for the ruling sought “with sufficient specificity to make the trial court aware of the complaint . . . .” Tex. R. App. P. 33.1; see In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999) (party is required to apprise trial court of error before that error can become basis for reversal). The purpose of the requirement is to promote judicial economy by giving the trial court “an opportunity to correct an error before an appeal proceeds.” In re C.O.S., 988 S.W.2d at 765.
The trial court in this case was not given the opportunity to consider Chad’s present theory of admissibility because Chad did not raise that theory at trial. Not only did he fail to urge that the phone was admissible to rebut other testimony, but he also repeatedly informed the court that his reason for offering the phone itself was simply to remove it from his own possession. Considering this explanation, the court’s statement that it had sustained the hearsay objection having determined that the phone itself was not “an appropriate . . . item for the purposes of the court,” reflects a decision that it was not necessary to admit the phone into evidence to satisfy Chad’s desire to have the phone taken out of his possession. And although the court did not admit the phone as evidence, it did take possession of [*18] it, thus effectively granting the relief Chad sought. This conclusion is reinforced by the fact that, after the court announced that it would take possession of the phone but not admit it into evidence, Chad did not indicate any dissatisfaction with that ruling but, instead, reiterated that all he wanted was to have the phone removed from his possession.
We conclude that the theory of admissibility Chad now asserts on appeal is not preserved for our review. See Tex. R. App. P. 33.1;” Loftin v. Loftin, No. 08-19-00107-CV, 2021 Tex. App. LEXIS 960, at *16-18 (Tex. App.—El Paso Feb. 5, 2021)
Your complaint must be timely:
Jury Charge: “In their fourth issue, appellants object to the court’s inclusion of an instruction on appellee’s fraud claim, which it alleges did not conform with the pleadings because appellee “did not plead fraud, but only fraudulent inducement.”
To preserve error in the jury charge, the complaining party must timely and plainly make the trial court aware of the complaint and obtain a ruling. See Tex. R. Civ. P. 274 (requiring a party objecting to a charge to point out distinctly the objectionable matter and the grounds of the objection); see also Thota, 366 S.W.3d at 689; Brannan Paving GP, LLC v. Pavement Markings, Inc., 446 S.W.3d 14, 19 (Tex. App.—Corpus Christi—Edinburg 2013, pet. denied). Moreover, to preserve error for appeal, the complaining party’s argument on appeal must comport with its objection in the trial court. Thota, 366 S.W.3d at 689; see Tex. R. App. P. 33.1. Appellants made no such [*25] objection—specific or otherwise—at the charge conference on the basis argued on appeal. Therefore, appellants did not preserve this issue for our review. See Tex. R. App. P. 33.1; TEX. R. CIV. P. 274. Appellants’ fourth issue is overruled.” Certified Value v. Infinite Play Co., No. 13-18-00550-CV, 2021 Tex. App. LEXIS 911, at *24-25 (Tex. App.—Corpus Christi Feb. 4, 2021)
All for now. Y’all stay safe and well.
Yours, Steve Hayes
shayes@stevehayeslaw.com; 817/371-8759; www.stevehayeslaw.com