Texas Civil Error Preservation Update, March 9, 2019

Dear All:

I’ve been delinquent on this update for a while now; between the day job and rehabbing from rotator cuff surgery, I’ve had to postpone some of the more joyful things in my life, like updating this post and eating ice cream right-handed.  I’ve still not caught up here, but will try to get to that point by next weekend.

Table of Contents


What follows are the blurbs from the cases.

Some issues–like lack of subject matter jurisdiction–may be raised for the first time on appeal:


Expert (conclusory opinion): “The conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgment. Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013). n. 6 An opinion is conclusory and cannot be considered probative evidence if it lacks a factual basis or is made in reliance on a basis that does not support the opinion. City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). Expert opinions must be supported by facts in evidence, not conjecture. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003). Courts are not required to ignore fatal gaps in an expert’s analysis or assertions. Elizondo, 415 S.W.3d at 264. We conclude that Ziegler’s opinion that Hunting manufactured the retainer nut at issue prior to December 21, 2012, is contrary to the evidence [*12] on which he purports to rely, lacks factual support, and relies on conjecture and speculation. As such, Ziegler’s opinion is conclusory and thus insufficient to create a question of fact to defeat summary judgment.

  1. 6 Although Gonzalez argues that Hunting failed to preserve a challenge to the reliability of Ziegler’s opinions by not obtaining a ruling on its objections, HN7 no objection is required to preserve a complaint that an expert’s opinion is conclusory. See City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004).” Gonzalez v. Hunting Energy Servs., No. 14-17-00877-CV, 2019 Tex. App. LEXIS 1393, at *11 n.6 (Tex. App.—Houston [14th Dist.] Feb. 26, 2019)

Subject Matter Jurisdiction: “Amaya argues that the State waived the issue of the trial court’s jurisdiction by failing to object either after receiving notice of his petition for non-disclosure or a copy of the trial court’s order. However, a relator, [*3] including the State, need not object to an order issued by a trial court prior to filing a petition for a writ of mandamus in an appellate court when the order is void. . . . .This is true because lack of jurisdiction is a fundamental error and may be raised for the first time in an appellate court. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). Additionally, subject-matter jurisdiction cannot be conferred by consent, waiver, or estoppel. . . . Assuming without deciding that the State did have notice of Amaya’s petition for non-disclosure and the trial court’s ruling, the lack of an objection does not preclude the State’s present petition for writ of mandamus as the trial court lacked jurisdiction to enter the order of non-disclosure.” In re State ex rel. Parsons, No. 10-17-00216-CV, 2019 Tex. App. LEXIS 91, at *2-3 (App.—Waco Jan. 9, 2019)

Subject Matter Jurisdiction: “In her first issue, Lisa contends her revocation of her relinquishment of parental rights deprived the trial court of jurisdiction to terminate her parental rights on any ground, voluntary or involuntary. Lisa did not raise this argument in the trial court. Ordinarily, a party may not complain on appeal of an issue she did not raise in the trial court. Tex. R. App. P. 33.1(a). However, a [*14] trial court’s subject matter jurisdiction is an issue that cannot be waived, and it may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). As stated, neither alleged revocation is in the appellate record or appears to have been offered at trial. Because we conclude the trial court had jurisdiction irrespective of Lisa’s revocation, we assume for this discussion Lisa properly revoked her relinquishment.” In the Interest of Z.Q.N., No. 14-17-00434-CV, 2019 Tex. App. LEXIS 1262, at *13-14 (Tex. App.—Houston [14th Dist.] Feb. 21, 2019)

If your complaint is not sufficiently specific, you have not preserved that complaint:


Evidence: “Although Kirk raises a number of other arguments challenging the trial court’s admission of other exhibits attached to Holiday’s affidavit, those arguments are waived. To preserve an issue for review, the complaining party must state a clear and specific objection that enables the trial court to make an informed ruling on the objection and that affords the opposing party an opportunity to remedy the defect, if possible. McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989); see also Tex. R. App. P. 33.1(a). As mentioned above, Kirk cited Jenkins [*18] in her objection to the business-records evidence. Jenkins did not involve the kinds of challenges that Kirk makes here, such as her objection that the Trust failed to lay a proper predicate for summary records. Jenkins, as discussed at length above, concerned documents related to proving that a debt was assigned to another. Kirk’s objection lacked the level of clarity and specificity necessary to preserve her challenges that were unrelated to the issue of assignment.” Kirk v. Nat’l Collegiate Student Loan Tr. 2003-1, No. 01-17-00722-CV, 2019 Tex. App. LEXIS 1514, at *17-18 (Tex. App.—Houston [1st Dist.] Feb. 28, 2019)

Evidence: “As part of this issue, Father asserts that the trial court should have [*35] granted his failure-to-lay-proper predicate objection to the Harris County decree and to our judgment because the Department did not show that the decree was final. However, Father neither mentioned the pending petition for review in the trial court, nor did he argue that the Department had not laid the proper predicate because the petition for review was pending. Instead, Father generally objected that the proper predicate had not been laid. To preserve a complaint for appellate review, a party must state an objection clearly and with sufficient specificity to make the trial court aware of the particular grounds for the complaint. See Tex. R. App. P. 33.1(a); McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989). Here, Father’s general objection that the Department had not laid a proper predicate was not specific enough to preserve the alleged error he now complains of on appeal. See Waldon v. City of Longview, 855 S.W.2d 875, 878 (Tex. App.—Tyler 1993, no writ) (holding objection that party failed to lay proper predicate for introduction of statement into evidence was too general to preserve error); see also Schreiber v. Cole, No. 07-13-00361-CV, 2015 Tex. App. LEXIS 5098, 2015 WL 2400242, at *5 (Tex. App.—Amarillo May 19, 2015, no pet.) (mem. op.) (holding that objection that evidence was inadmissible because “it’s not been proved up” was not specific enough to preserve error).” In the Interest of R.J., No. 01-18-00729-CV, 2019 Tex. App. LEXIS 760, at *34-35 (Tex. App.—Houston Feb. 5, 2019)

Expert Report: “On appeal, Dr. Scherer contends that the reports (1) contradict themselves about the standard of care for use of Prilocaine, and (2) fail to explain how an endodontist/dentist should recognize a complication from the anesthetic. Dr. Scherer’s argument that the reports are contradictory regarding the standard of care is based on Dr. Maranga’s statements that (1) the use of Prilocaine on a patient undergoing a root canal is a deviation from the standard of care but also (2) “[c]onsiderable caution must be followed when and if” Prilocaine is used as an anesthetic. Dr. Scherer argues that if the use of Prilocaine is prohibited, one should not need to use “considerable caution” when using the drug or “recognize complications” of it. He concludes that “Dr. Maranga’s standard-of-care statement based on prohibition is inadequate because she admits that providers uses [sic] the anesthetic.” At the outset, we must address Gandy’s contention that this particular objection has been waived by Dr. Scherer, as [*8] it was not made within twenty-one days of receipt of Dr. Maranga’s supplemental report. See, e.g., Bakhtari v. Estate of Dumas, 317 S.W.3d 486, 493 (Tex. App.—Dallas 2010, no pet.) (any objections to expert report other than objections made within twenty-one-day period are waived); Williams v. Mora, 264 S.W.3d 888, 890-91 (Tex. App.—Waco 2008, no pet.) (same). After reviewing the record, we conclude that Dr. Scherer has not waived consideration of this complaint. He timely objected that Dr. Maranga’s expert reports “failed to articulate the standard of care,” and he specifically alleged that the only “identifiable and explicitly stated standard of care” was Dr. Maranga’s assertion that “the standard of care required Dr. Scherer to recognize that an anesthetic reaction was occurring and stop the procedure.” In our view, these objections to potential deficiencies in Dr. Maranga’s statements on the standard of care were adequate to encompass Dr. Scherer’s complaint.” Scherer v. Gandy, No. 07-18-00341-CV, 2019 Tex. App. LEXIS 1554, at *7-8 (Tex. App.—Amarillo Feb. 28, 2019)

Expert Report: “In his objections filed with the trial court, Dr. Scherer made specific challenges to the adequacy of Dr. Maranga’s reports as to her opinions on the applicable standards of care, Dr. Scherer’s alleged breaches of the standards, and the causal relationship between any breach and Gandy’s injuries. Dr. Scherer [*17] did not complain that Gandy’s allegation of dental negligence did not encompass the allegedly negligent acts and omissions highlighted in Dr. Maranga’s reports, nor did he complain that the contentions in the reports regarding the use of Prilocaine and Gandy’s adverse reaction to it failed to show that her claim of an “overly aggressive root canal treatment” had merit. Dr. Scherer contends that his general objection that Gandy “failed to provide a basis for [the] trial court to conclude that her case has any merit” served to preserve the specific complaint he now raises on appeal. We disagree. His general objection did not apprise the trial court of this specific challenge to an alleged lack of correlation between Gandy’s pleadings and her expert’s reports. See Maxwell v. Martin, No. 14-11-00392-CV, 2012 Tex. App. LEXIS 1069, at *22-23 (Tex. App.—Houston [14th Dist.] Feb. 9, 2012, no pet.) (mem. op.) (“We cannot hold the trial court abused its discretion by determining Dr. Glass adequately demonstrated that Martin’s claims have merit despite the purported deficiencies in his report cited by Dr. Maxwell on appeal when Dr. Maxwell did not specifically inform the court of those deficiencies.”). Therefore, this objection has been waived.” Scherer v. Gandy, No. 07-18-00341-CV, 2019 Tex. App. LEXIS 1554, at *16-17 (Tex. App.—Amarillo Feb. 28, 2019)

Here is one of the few instances where I have seen a court of appeals hold that a failure to comply with a pertinent rule does not amount to a waiver of error because of the importance of the fundamental issue involved–in this case, the failure of a father to appear at a hearing despite a bench warrant being issued for his presence:


Continuance: “In this case, counsel indicated in her (oral, unsworn) motion that she did not know why Father was not present since he had been properly bench warranted. The children’s attorney ad litem echoed counsel’s lack of information when, after the close of evidence, he stated to the trial court: “Judge, I believe [*17] there is an issue with the outstanding — with respect to his lack of presence here today. I believe it would be appropriate, as he was bench warranted here, to have — allow him to be present. I’m not sure what happened with the bench warrant.” Father could not appear at trial absent compliance with the bench warrant by the Harris County Sheriff’s Office. Father’s non-appearance was clearly unanticipated, and counsel did not have personal knowledge of the possible reason for Father’s failure to appear. Given these facts, and the fundamental constitutional right at issue, we decline to apply the presumption that arises from failure to comply with Rule 251.” In the Interest of L.N.C., No. 14-18-00691-CV, 2019 Tex. App. LEXIS 645, at *16-17 (App.—Houston [14th Dist.] Jan. 31, 2019) As the concurrence and dissent pointed out, though: “The Supreme Court of Texas additionally has held that a parent inmate does not have the absolute right to be present at a trial in which the termination of parental rights is at stake. See In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).” In the Interest of L.N.C., No. 14-18-00691-CV, 2019 Tex. App. LEXIS 645, at *28 (App.—Houston [14th Dist.] Jan. 31, 2019)

Don’t insist on the trial court finalizing a judgment when it has not addressed your claim for attorney’s fees–otherwise, the invited error doctrine may preclude you complaining:


Attorney’s Fees: “While we have recognized the trial court’s error in completely [*19] denying Izen’s claim for the attorney’s fees associated with his claim to foreclose on Cook’s note, we conclude the trial court’s judgment should not be reversed based on that error. When the trial court announced its ruling [on the parties’ respective motions for summary judgment] denying all claims for attorney’s fees, the ruling was proper because the ruling meant only that a fact issue existed on whether the fees were reasonable. In this case, the trial court’s error occurred when the trial court made what should have been an interlocutory ruling final. By suggesting to the trial court that the court make its rulings final, Izen invited that error. Under the invited-error doctrine, we cannot overturn a judgment that resulted from the trial court’s agreement to comply with a request made by the party who is complaining about the ruling on appeal. See Tex. R. App. P. 33.1; Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (explaining that under the invited-error doctrine, a party cannot complain on appeal about an action that party specifically requested). The invited-error doctrine applies to Izen’s and to Izen’s and Cooley’s claims for attorney’s fees.” Cook v. Izen, No. 09-17-00025-CV, 2019 Tex. App. LEXIS 663, at *18-19 (App.—Beaumont Jan. 31, 2019)

You have to comply with other pertinent rules:


Notice: “Lastly, Kirk contends that because the Trust did not produce any documents establishing that it notified Kirk that it was accelerating her loan following her failure to maintain the monthly payments, the Trust was entitled to recover past-due payments only and not the full amount. Again, Kirk waived this issue by not filing a verified denial that raised it. See Tex. R. Civ. P. 93(12) (stating that party’s failure to file verified denial “[t]hat notice and proof of loss or claim for damage has not been given as alleged” results in “notice [*24] and proof . . . be[ing] presumed”); see also Brown, 414 S.W.3d at 285-86. We therefore reject Kirk’s notice-of-acceleration argument.” Kirk v. Nat’l Collegiate Student Loan Tr. 2003-1, No. 01-17-00722-CV, 2019 Tex. App. LEXIS 1514, at *23-24 (Tex. App.—Houston [1st Dist.] Feb. 28, 2019)

Offer: “Specifically, Kirk maintains that the Trust failed to present sufficient evidence establishing her acceptance of an offer. However, Rule of Civil Procedure 93(7) states that a party denying that she executed a written instrument must file a verified denial to that effect, otherwise the “instrument shall be received in evidence as fully proved.” Kirk did not file a verified denial that denied her acceptance of the loan at issue, and therefore her acceptance argument is waived.” Kirk v. Nat’l Collegiate Student Loan Tr. 2003-1, No. 01-17-00722-CV, 2019 Tex. App. LEXIS 1514, at *20 (Tex. App.—Houston [1st Dist.] Feb. 28, 2019)

Offset: “Barclay failed to plead offset and Barclay does not argue the parties tried the defense by consent other than to state the issue was an evidentiary issue, and Richey did not object to evidence of her payments to Richey. In any case, Barclay did not request or submit proposed questions or instructions for the jury to make any findings related to the defense of offset as to the damages awarded Richey for paying off Barclay’s mortgage. As a result, regardless of whether the issue questioning the factual sufficiency of the evidence supporting the damages awarded to Richey for the payoff of Barclay’s mortgage is properly before us, Barclay waived this issue by failing to request findings concerning her alleged offset. See Lone Starr, 365 S.W.3d at 704; Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 862 (Tex. App.—Fort Worth 2003, pet. denied); see also Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 272, 274. We affirm the trial court’s award of unjust enrichment damages in the amount of $78,733.15 to Richey for paying off Barclay’s mortgage.” Barclay v. Richey, No. 09-17-00026-CV, 2019 Tex. App. LEXIS 456, at *19 (App.—Beaumont Jan. 24, 2019)

You have to raise your complaint in a timely fashion:


Limitations: “The record shows that in September 2015, Izen sued Cook alleging that she was in default on her note, so he sued more than five years after Cook quit making the monthly installment payments required by her note. Our review of Cook’s pleadings reveals that she failed to plead limitations until after the trial court granted Izen’s motion. Under Rule 94 of the Texas Rules of Civil Procedure, limitations is an affirmative defense that must be pleaded to avoid waiver. Tex. R. Civ. P. 94. Under Texas law, “[a]n affirmative defense that is not pleaded or proved and on which findings are not obtained is waived and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial.” Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999, no pet.)).

While a statute of limitations defense is an issue that the parties can try by consent, a trial by consent did not occur based on the record of the proceedings in this case. The record shows that Izen objected when Cook raised limitations for the first time in her motion to reconsider. See Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (explaining the record did not support the appellant’s claim that the parties tried a statute of limitations issue by consent). It also shows that the trial court denied Cook’s [*15] request to reconsider after informing Cook that her request to reconsider was untimely. Thus, the trial court never reached the merits of Cook’s claim that Izen’s breach of contract claim was barred by limitations. Because Cook failed to timely raise a limitations defense, we hold that she waived the defense and cannot rely on the defense to overturn the ruling the trial court made on Izen’s claim.” Cook v. Izen, No. 09-17-00025-CV, 2019 Tex. App. LEXIS 663, at *14-15 (App.—Beaumont Jan. 31, 2019)

You have to get a ruling on your complaint:


Discovery: “Antero conditionally argues that we should remand without rendering judgment dismissing EnerQuest in order to permit the trial court to consider whether more jurisdictional discovery is warranted. But Antero does not direct us to anywhere in the record to show that the motion for continuance was ruled on and we have not located any ruling in the record. Accordingly, any error in the failure to permit jurisdictional discovery prior to the special appearance hearing has not been preserved for our review. See Tex. R. App. P. 33.1(a)(2); Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 626 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiffs] failed to obtain a ruling from the trial court on the motion for continuance and therefore, failed to preserve error.”).” Enerquest Oil & Gas, L.L.C. v. Antero Res. Corp., No. 02-18-00178-CV, 2019 Tex. App. LEXIS 688, at *7 n.6 (App.—Fort Worth Jan. 31, 2019)

There were tons of cases in which parties did not preserve their complaints because they did not raise the complaint at all.  I won’t go into those here.

I hope this helps.  More soon–I hope.

Y’all take good care.

Yours, Steve Hayes


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436
Email: shayes@stevehayeslaw.com

Meetings with Mr. Hayes will be by appointment only.

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