law-preservation-of-error | common errors in appeals | preservation of error for appellate review | preservation
of constitutional arguments for appeal | preservation of error in admission or exclusion of evidence, evidentiary
rulings by trial court judge
PRESERVATION OF ERROR FOR APPELLATE REVIEW
To preserve a complaint for appellate review, the record must show that the complaint
was made to the trial court by a timely objection that stated the grounds for the ruling
sought with sufficient specificity unless those grounds are apparent, and that the trial
court ruled or refused to rule on the objection. Tex. R. App. P. 33.1(a).
We cannot reverse a judgment in a civil case based on unassigned error. See Pat
Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam); Exxon Mobil Corp.
v. Hines, 252 S.W.3d 496, 507 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).
PRESERVATION OF EVIDENTIARY ISSUES FOR APPEAL
The trial court sustained DaVita's and Fresenius's objections to this evidence, and Basey does not provide
argument or authority explaining how the trial court erred in this regard. 14-07-00925-CV
Accordingly, she has forfeited any objection to the trial court's ruling. See Tex. R. App. P. 38.1(h); San Saba
Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.- Houston [14 Dist.] 2005, no pet.) (holding that,
even though courts interpret briefing requirements reasonably and liberally, party asserting error on appeal still
must put forth some specific argument and analysis citing record and authorities in support of party's
argument).
To preserve a complaint for appellate review, the record must show that the complaint was made to the trial
court by a timely objection that stated the grounds for the ruling sought with sufficient specificity unless those
grounds are apparent, and that the trial court ruled or refused to rule on the objection. Tex. R. App. P. 33.1
(a). An objection must be clear enough to give the trial court an opportunity to correct the asserted error.
Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008). A ruling on a
motion in limine preserves nothing for appellate review. Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.
2d 551, 557 (Tex. App.- Houston [1st Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex. 1998). However, a motion in
limine may be sufficient to apprise the trial court of the basis of a subsequent general objection at trial. See
Welch v. Tex. Employers' Ins. Ass'n, 636 S.W.2d 450, 453 (Tex. App.- Eastland 1982, writ ref'd n.r.e.); Brown's
Estate v. Masco Corp., 576 S.W.2d 105, 107 (Tex. Civ. App.- Beaumont 1978, writ ref'd n.r.e.).
Barber v. Bison Building Materials (Tex.App.- Houston [14th Dist.] Nov. 4, 2008)(Boyce)
(one-vehicle truck accident PI negligence suit by driver against employer, admission of evidence, witness
credibility, impeachment)
To preserve a complaint for review on appeal, a party must present to the trial court a timely request, motion,
or objection that states the specific grounds for the ruling requested and conforms to the requirements of the
Rules of Procedure and Evidence. See Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999);
Tex. R. App. P. 33.1(a)(1)(A)-(B). The complaining party must also show that the trial court ruled on the
request, objection, or motion "either expressly or impliedly." Tex. R. App. P. 33.1(a)(2)(A).
Williams v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Radack)
(attorney fee dispute, sworn account suit, no duress, no excuse to payment of attorney's fees per agreement)
PRESERVATION CONSTITUTIONAL ERROR ARGUMENTS FOR APPEAL
(TERMINATION OF PARENTAL RIGHTS)
In her first, second, and fourth appellate issues, Kemp contends that the application of section 263.405, as
applied to her, violates her constitutional rights to due process and equal protection. Kemp, however, did not
raise these “as applied” constitutional arguments in the trial court. In In re L.M.I., the Supreme Court of Texas
applied the preservation requirements of Texas Rule of Appellate Procedure 33.1 to a constitutional complaint
in the parental rights termination context. 119 S.W.3d 707, 710-11 (Tex. 2003); see also Tex. R. App. P. 33.1
(providing that as a prerequisite for appeal, a timely and sufficiently explicit request, objection, or motion must
be made in the trial court). In In re A.J., this court declined to address the merits of an appellant’s claim that
section 263.405 unconstitutionally denied his right to appeal because he failed to raise the argument below
and failed to properly brief it on appeal. No. 08-00471-CV, 2009 WL 87602, at *1 (Tex. App.- Houston [14th
Dist.] Jan. 15, 2009, no pet. h.) (per curiam) (mem. op.). The Fort Worth court held similarly in In re D.W., 249
S.W.3d 625, 631 (Tex. App.- Fort Worth 2008) (en banc), pet. denied, 260 S.W.3d 462 (Tex. 2008). Based on
these authorities, we hold that Kemp failed to preserve her constitutional challenges.
In Interest of RCR (Tex.App. – Houston [14th Dist.] Apr. 14, 2009)(Hedges)
(termination of parental rights, constitutional issue waived, frivolousness)
CONSTITUTIONAL VIOLATION COMPAINT WAIVED IN TERMINATION / SAPCR CASE
In his third issue, Brown argues that the trial court violated the United States and Texas Constitutions by
permitting DFPS to direct the children's moral and religious training. Section 151.001 lists among the rights
and duties of a parent the right to direct the moral and religious training of the child. Tex. Fam. Code Ann. §
151.001. Brown now argues, for the first time on appeal, that by giving a state agency that right, the trial court
has violated the First and Fourteenth Amendments to the United States Constitution and article I, section 6 of
the Texas Constitution. Brown did not raise the constitutional issue in the trial court, his statement of points on
appeal, or in his motion for new trial. To preserve his complaint for appellate review, Brown must have
presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired
ruling. See Tex. R. App. P. 33.1. Even a constitutional challenge can be waived if not properly raised in the
trial court. In re Doe 2, 19 S.W.3d 278, 284 (Tex. 2000). Therefore, we overrule his third issue.
In Interest of XCB (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Anderson)
(termination of parental rights, nonbiological father figure, common law marriage to mother, best interest
factors, failure to preserve constitutional arguments for appeal)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Guzman and Boyce
14-08-00851-CV In the Interest of X.C.B., AKA X.C, I.C.B., AKA I.C., S. B.C., and J.W.C AKA J. W. W.
Appeal from 315th District Court of Harris County
PRESERVATION OF ISSUES FOR CROSS-APPEAL
In its first cross-issue, Kirkland seeks a remand of this cause for the award of and calculation of reasonable
attorney's fees incurred for this appeal. Kirkland has waived its right to pursue its appellate attorney's fees by
failing to present evidence or to obtain a ruling on those fees in the trial court. Everest Exploration, Inc. v. URI,
Inc. 131 S.W.3d 138, 145 (Tex. App.--San Antonio 2004, no pet.); City of San Antonio v. Int'l Ass'n of Fire
Fighters, Local 624, 539 S.W.2d 931, 935 (Tex. Civ. App.--El Paso 1976, no writ).
WAIVER OF COMPLAINT ABOUT ATTORNEY'S FEES: An appellee that does not offer any evidence as to
future attorney's fees and does not procure a finding and judgment thereon waives any such recovery. Loomis
Constr. Co. v. Matijevich, 425 S.W.2d 39 (Tex. Civ. App.--Houston [14th Dist.] 1968, no writ); see also Int'l Sec.
Life Ins. Co. v. Spray, 468 S.W.2d 347 (Tex. 1971). We overrule cross-issue number one.
In its second cross-issue, Kirkland seeks to have the costs on appeal taxed against Mrs. Koval. In a civil case,
the court of appeal's judgment should award the appellate costs to the prevailing party. Tex. R. App. P. 43.4.
On appeal, costs include (1) the filing fees paid to the clerk of the court of appeals, (2) the fee paid to the trial-
clerk for the preparation of the clerk's record, and (3) the fee paid to the court reporter for preparation of the
reporter's record. Tex. R. App. P. 51.1; See WesTech Eng'g Inc. v. Clearwater Constructors, Inc., 835 S.W.2d
190, 206 (Tex. App.--Austin 1992, no writ). Thus, these costs are taxed against Mrs. Koval in accordance with
the rules of appellate procedure.
Koval v. Kirkland Contractors, Inc. (Tex.App,- Houston [1st Dist.] Feb. 15, 2008)(Davie Wilson)
(res judicata based on bankruptcy proceeding, attorney's fees probate code, waiver of cross-appeal)
AFFIRM TC JUDGMENT: Opinion by Senior Justice Davie Wilson, sitting by assignment
Before Judge Wilson, Justices Alcala and Hanks
01-06-00067-CV Linda Koval v. Henry Kirkland Contractors, Inc.
Appeal from Probate Court No 3 of Harris County (Judge Hon. Rory R. Olsen)
Directed Verdict: Legal Sufficiency Challenge
In his second issue, Whitmire contends the county court erred in denying his motion for a directed verdict.
Whitmire, however, waived his motion for directed verdict by introducing his own evidence after Greenridge
rested, and in failing to reurge the motion at the close of all of the evidence. See Cliffs Drilling Co. v. Burrows,
930 S.W.2d 709, 712 (Tex. App.—Houston [1st Dist.] 1996, no writ); Bryan v. Dockery, 788 S.W.2d 447, 449
(Tex. App.—Houston [1st Dist.] 1990, no writ). We address this issue as a challenge to the legal sufficiency of
the evidence because an appellant is not required to preserve a legal sufficiency challenge after a bench trial.
See Tex. R. App. P. 33.1(d)(“In a nonjury case, a complaint regarding the legal or factual sufficiency of the
evidence . . . may be made for the first time on appeal in the complaining party’s brief.”); Monk v. Pomberg, No.
01-05-00429-CV, 2007 WL 926491, at *8 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet.); see also City
of Keller, 168 S.W.3d at 823, 827 (holding that a challenge on appeal to denial of motion for directed verdict is
challenge to legal sufficiency of evidence).
Monk also argues that the court erred in granting summary judgment because (1) the trial court's finding that
there was a genuine issue of material fact with regard to Pomberg's ownership of the property precluded
summary judgment against Monk, and (2) the amount of delinquent annual maintenance charges established
by the summary judgment evidence differed from the amount in the proof of claim Westgate filed in bankruptcy
court. Because these arguments were not raised in the trial court in opposition to the summary judgment
motion, we do not consider them on appeal. See Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d
448, 453 (Tex. App.- Houston [14th Dist.] 2001, pet. denied) (citing City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 676 (Tex. 1979)). Monk v. Westgate Homeowners' Association, Inc. (Tex.App.- Houston [14th
Dist.] Aug. 11, 2009)(Price) (motion for new trial overruled by operation of law not sufficient to preserve
complaint about lack of proper notice of summary judgment motion hearing)(discharge in bankruptcy was not
pleaded as affirmative defense)(pro se appeal)
AFFIRMED: Opinion by Senior Justice Frank C. Price, sitting by assignment
Before Price, Justices Brock Yates and Guzman
14-07-00886-CV Joseph Monk v. Westgate Homeowners' Association, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble
HOUSTON APPELLATE COURT CASES | TEXAS CASE LAW |
CAUSES OF ACTION ELEMENTS | HOUSTON CASE LAW | TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE