Supreme Court Error Preservation: May 27, 2024

May 27, 2024

Dearly Beloved:

I’m more than a little late on these but hope they help.  Since late February, SCOTX has handed down at least 5 opinions touching on preservation, dealing with immunity, jury charge, affidavits, and experts:

Table of Contents

Some complaints can first be raised on appeal–like arguments in support of governmental immunity, and a complaint that an expert’s summary judgment affidavit/declaration is conclusory–can first be raised on appeal, and a defendant has no obligation to complain about a omission of a unanimity instruction in the charge

  • Arguments in support of governmental immunity can be first raised on appeal
  • Jury Charge (Unanimity)
  • A complaint that an expert’s affidavit/declaration supporting a summary judgment response is conclusory, and cannot raise a fact issue

Your complaint must be sufficiently specific–and sometimes it is

  • Jury Charge

You must make a complaint about the following in the trial court

  • Expert Witness (Qualifications)


Some complaints can first be raised on appeal–like arguments in support of governmental immunity, and a complaint that an expert’s summary judgment affidavit/declaration is conclusory–can first be raised on appeal, and a defendant has no obligation to complain about a omission of a unanimity instruction in the charge:

Arguments in support of governmental immunity can be first raised on appeal: “The court of appeals did not address the first part of the definition [concerning whether a subcontractor’s employees were TXDOT ‘employees’): whether the Lyellco employees were “in the paid service of a governmental unit by competent authority.” ….In a footnote, the court observed that TxDOT had argued on rehearing that Lyellco employees were paid by TFR and thus were not in the “paid service of a governmental unit.” The court concluded that TxDOT waived [*10] this argument by failing to raise it previously and thus declined to “address TxDOT’s eleventh-hour issue.” Id. at 86 n.7.

This last conclusion was error for two reasons. First, TxDOT’s “paid service” argument was not waived and should have been considered. As subject-matter jurisdiction is never presumed and cannot be waived, see Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993), the issue can “‘be raised for the first time on appeal by the parties or by the court,’ [and] a court is obliged to ascertain that subject matter jurisdiction exists regardless of whether the parties have questioned it.” Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358-59 (Tex. 2004) (citations omitted). Thus, an appellate court’s review of a plea to the jurisdiction is not limited to the grounds set forth in the governmental unit’s plea in the trial court. Dallas Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013) (“[A]n appellate court must consider all of a defendant’s immunity arguments, whether the governmental entity raised other jurisdictional arguments in the trial court or none at all.”); see also Rusk State Hosp. v. Black, 392 S.W.3d 88, 95-96 (Tex. 2012).”  Tex. DOT v. Self, No. 22-0585, 67 Tex. Sup. Ct. J. 759, 2024 Tex. LEXIS 372, at *9 (May 17, 2024)

Jury Charge (Unanimity): “[A] reviewing court does not measure unanimity by examining [*12] the evidence presented—a jury is either divided in its verdict or it is not. For this reason, the homeowners are mistaken in contending that Renda Contracting’s failure to object to the omission of the unanimity instruction in the charge “waives any complaint concerning the absence of unanimity in Question 8.”…. Unanimity cannot be a deemed finding in the face of a non-unanimous verdict. Because the statutory burden to obtain unanimous findings belongs to the party seeking exemplary damages, that party must ensure that the charge asks questions that satisfy this requirement. It would shift the burden, not satisfy it, if a failure to object to a charge that does not satisfy the statute eliminated the unanimity requirement.” Oscar Renda Contracting, Inc. v. Bruce, No. 22-0889, 67 Tex. Sup. Ct. J. 636, 2024 Tex. LEXIS 319, at *11-12 (May 3, 2024)

A complaint that an expert’s affidavit/declaration supporting a summary judgment response is conclusory, and cannot raise a fact issue: “n. 11 The City contested White’s expert qualifications, objected to specific statements in his declaration, and attached screenshots from Hewitt’s and Curtis’s body-camera footage. The trial court did not expressly rule on the objections. On appeal, the parties dispute the admissibility of this evidence and whether the objections were properly preserved. Given our disposition, we consider only evidentiary challenges that may be raised for the first time on appeal and otherwise assume the trial court properly admitted the evidence….White’s expert opinion [in his written declaration], however, fails to raise a fact issue on whether Hewitt was performing a discretionary duty. First, his opinion that the call was not classified as priority two constitutes no evidence because it is speculative, conclusory, and assumes facts that are contrary to those on the face of the record.40 The message log report recovered from Hewitt’s mobile data terminal conclusively established that the call was classified as priority two,… and Hewitt had no notice of the contents of the 911 call to evaluate his response to the priority two call any differently.42 Second, White’s opinion that the officers did not consider the call to be priority two—even if it was classified as one—is perhaps supported by at least circumstantial evidence, given that the officers exceeded the Department’s response times. But the City claims that it is just as reasonable to infer “that there simply was not manpower available to respond to the call sooner” or that the “standard is a goal and we don’t always get there.” Even assuming White is correct, his opinion provides no support that Hewitt was performing a [*14] ministerial duty. The Department considers a priority two call an emergency, and only supervising officers may change the priority. Hewitt, as a nonsupervising officer, had no discretion to respond to the call as anything other than an emergency priority two call, although he did have discretion as to how he would respond to the emergency.43

n. 40 See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) (“Conclusory statements by an expert are insufficient to support or defeat summary judgment.”); see also Windrum v. Kareh, 581 S.W.3d 761, 770 (Tex. 2019) (noting that no objection to the admissibility of conclusory testimony is necessary if the opinion “was speculative or conclusory on its face[] or assume[s] facts contrary to those on the face of the record” (quoting Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 388 (Tex. 2008))).

n. 42 Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839 (Tex. 2010) (noting in the summary-judgment context that conclusory or speculative opinion testimony “is not relevant evidence, because it does not tend to make the existence of a material fact more probable or less probable” and therefore constitutes no evidence (quoting Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004))); see Windrum, 581 S.W.3d at 769 (noting that an expert’s opinion is conclusory if “he offers only his word that the bases offered to support his opinion actually exist or support his opinion”).

City of Hous. v. Sauls, No. 22-1074, 67 Tex. Sup. Ct. J. 690 , 2024 Tex. LEXIS 340, at *7, 13-14 (May 10, 2024)

Your complaint must be sufficiently specific–and sometimes it is:

Jury Charge: “The court of appeals did not reach these issues [i.e., whether a plaintiff was the companies’ employee, and whether the trial court’s charge improperly defined “employer” and “employee”]. It held that petitioners failed to preserve their objection to using the federal regulations’ definitions because their objection did not explain their reasoning for why the common-law definitions should apply instead. 627 S.W.3d at 692. According to the court, petitioners only “complained that the definition did not apply to Omega,” and their “objection made no mention of ANCA or JNM.” Id. But, the court concluded, “none of the objections to the charge raised on appeal comport with the objections appellants made to the trial court.” Id.

We disagree with the court of appeals’ conclusion on preservation. At the charge conference, defense counsel objected to the use of the federal [*7] regulations’ definitions at all, arguing that the trial court should have used the Texas Pattern Jury Charge instead….[objection in footnote] Counsel alternatively objected to the specific application of the federal regulations’ definitions to Omega….[objection in footnote] The trial court overruled these objections. Petitioners’ arguments on appeal are more nuanced than at the charge conference, but the upshot is the same: the jury charge should have used the common-law definitions from the Pattern Jury Charge, not the federal regulations’ definitions. 14

Petitioners repeatedly made similar arguments both before and after the charge conference, using common-law considerations (not the federal regulations’ definitions) to argue that no defendants, and certainly not all, were Mr. Lozano’s employer. Their answer to the Lozanos’ petition also stated that Mr. Lozano was not their employee. This sufficiently put the trial court on notice of the objection. See Tex. R. Civ. P. 274; Thota v. Young, 366 S.W.3d 678, 689 (Tex. 2012) (“[T]he procedural requirements for determining whether a party has preserved error in the jury charge are explained by one basic test: whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” (internal quotation [*8] marks omitted)).

The point of this discussion is that, because of the court of appeals’ mistaken view of preservation, that court has not yet considered the merits of whether the trial court correctly used the federal regulations’ definitions in the jury charge. We remand the case to that court so that it may do so in the first instance.

n. 14 It is certainly true that pattern jury charges are not themselves the law, and courts must depart from a pattern jury charge when doing so is necessary to accurately state the law or submit a question to the jury. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45 (Tex. 2007). But asking a trial court to follow them is hardly out of the ordinary. “[O]ur trial courts routinely rely on the Pattern Jury Charges in submitting cases to juries, and we rarely disapprove of these charges.” Id. The Lozanos acknowledge that “Petitioners proffered Pattern Jury Charge 10.1.” See also supra note 12. The objection to the Lozanos’ proposed charge preserved for appeal the issue of whether the pattern jury charge was the correct expression of the law.”

JNM Express, LLC v. Lozano, No. 21-0853, 67 Tex. Sup. Ct. J. 556, 2024 Tex. LEXIS 289, at *6-8 (Apr. 19, 2024)

You must make a complaint about an expert’s qualifications in the trial court:

Expert Witness (Qualifications): “Turning to the proper scope of our review, we conclude that the court of appeals erred in excluding Nurse Wright’s opinion testimony regarding causation of Carlo’s injury. Mother did not object to Nurse Wright’s qualifications to provide such testimony in the trial court, nor did she raise the issue in the court of appeals. As with challenges to the reliability of expert testimony, a party wishing to complain that expert testimony is legally insufficient to support the judgment because the witness is not qualified must challenge the admission of the testimony before trial or object when it is offered at [*7] trial. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 786 (Tex. 2020); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 143-44 (Tex. 2004). n. 2 In addition, if the trial court admits the testimony and the party wishes to challenge that ruling on appeal, it must assign the ruling as error in its brief in the court of appeals. See Tex. R. App. P. 33.1(a); Brumley v. McDuff, 616 S.W.3d 826, 830 (Tex. 2021); Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 726 (Tex. 2016). Because Mother did neither in this case, the court of appeals should have considered all of Nurse Wright’s testimony. n. 3

n. 2 This requirement “gives the proponent a fair opportunity to cure any deficiencies and prevents trial and appeal by ambush.” Pike, 610 S.W.3d at 786.

n. 3 In its erroneous review of Nurse Wright’s qualifications, the court of appeals held that she was unqualified to provide testimony as to the probable timeframe of Carlo’s injury because, as a registered nurse, she was “not qualified to medically diagnose the causation of a patient’s injuries.” 2023 Tex. App. LEXIS 214, 2023 WL 170762, at *20. As this issue was not preserved, we do not reach the merits of the court’s holding that Nurse Wright was not qualified to provide medical causation testimony, but we note that some courts have concluded otherwise. See Gregory v. State, 56 S.W.3d 164, 180-81 & n.12 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d); cf. In re R.D., No. 02-21-00125-CV, 2021 Tex. App. LEXIS 7679, 2021 WL 4204999, at *2 (Tex. App.—Fort Worth Sept. 16, 2021, no pet.) (referencing testimony by pediatric nurse practitioner, permitted by trial court, that child’s traumatic brain injury “was caused by excessive blunt force trauma” and child’s death “was caused by nonaccidental trauma most likely inflicted by Father ‘based on the history that he gave [her]’”).

In the Int. of C.E., 687 S.W.3d 304 (Tex. 2024)

All for now, Buckaroos.  Stay safe and well.

Yours, Steve Hayes; 817/371-8759;


Law Office of Steven K. Hayes

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