In re Marsana de Monserat denied a mandamus petition about the grant of a new trial. As one basis for its holding, the Fifth Court said:

The mandamus record also fails to show that relator made a predicate request to the trial court to correct the alleged deficiencies in its written order. See In re Eagleridge Operating, LLC, 642 S.W.3d 518, 525 (Tex. 2022) (orig. proceeding) (“Due to the extraordinary nature of the remedy, the right to mandamus relief generally requires a predicate request for action by the respondent, and the respondent’s erroneous refusal to act.”). Based on the circumstances here, we conclude that this is not one of those rare occasions where the predicate requirement may be relaxed.

No. 24-00466 (Aug. 9, 2024) (mem. op.). The opinion does not state whether the petitioner’s response to the motion for new trial could have potentially satisfied this requirement.

The supreme court recently reversed a court of appeals’ (not Dallas) conclusion about waiver of charge error, holding:

At the charge conference, defense counsel objected to the use of the federal regulations’ definitions at all, arguing that the trial court should have used the Texas Pattern Jury Charge instead. Counsel alternatively objected to the specific application of the federal regulations’ definitions to Omega. …

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. … 

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.

JNM Express, LLC v. Lozano, No. 21-0853 (Tex. April 19, 2024) (footnotes omitted). (The graphic was provided by DALL-E, asked to illustrate the concept of an argument becoming “more nuanced” from trial to appeal, wihch apparently involves a transition from printed documents to a tablet.)

On a second appeal after an earlier remand from the Texas Supreme Court, the once-successful plaintiff in Credit Suisse AG v. Claymore Holdings LLC sought judgment for “an additional $25,235,910.61 for secondary market purchases in addition to the $40 million in damages for fraudulent inducement.” The Fifth Court noted:

• “[t]he jury was not asked to determine liability as to the secondary market purchases; therefore, the record contains no liability or causation finding” to support such damages;
• “Claymore did not object to the absence” of a question on those matters, and did not try to submit one either;
• in the trial court’s findings of fact and conclusions of law, on matters tried to the bench, “[t]here is not a separate section for fraudulent inducement of secondary market purchases”;
• The trial court’s conclusion of law that awarded such damages did not make “an implicit finding and conclusion” about liability and causation;
• The supreme court did not address this topic in its prior opinion, and because “[t]he jury made no liability finding on the secondary market purchases … there was nothing for Credit Suisse to appeal at that stage in the proceedings.”

No. 05-21-00649-CV (Feb. 14, 2023) (mem. op.).

Choi v. Brixmore Holdings provides a good example of when an offer of proof is required to preserve a matter for appellate review:

“Although it is the landlord’s duty to mitigate damages, the tenant has the burden of proving that the landlord has failed to mitigate damages and the amount by which the landlord could have reduced its damages. Neither the Guptas nor Choi offered or sought to offer evidence about Brixmor’s failure to relet the premises. Nor did they make an offer of proof of the amount of damages they contend Brixmor should have mitigated by undertaking an investigation before entering into the assignment, even though the trial court invited them to ‘submit an Offer of Proof on that via affidavit’ after sustaining Brixmor’s objection.”

No. 05-20-00516-CV (July 21, 2022) (mem. op.) (citation omitted).

Emphasizing “our common-sense approach to error preservation,” in Browder v. Moree the Texas Supreme Court held:

If a trial court indicates that it will proceed with a bench trial in a case where a jury demand was timely perfected, a demanding party that still wishes to have a jury trial must ensure that the court is aware of the demand. But neither our procedural rules nor this Court’s decisions require a party that has obtained an adverse ruling from the trial court to take the further step of objecting to that ruling to preserve it for appellate review. Once the trial court denied Browder’s request for a jury trial, Browder had no choice but to go forward with the bench trial. … ‘If simply adhering to an adverse order while continuing to litigate waived review of that order on appeal from a final judgment, there would be few orders left to review.'”

No. 21-0691 (June 24, 2022) (per curiam) (citation omitted).

A good reminder about a basic point of mandamus practice appears in In re Aspen Heights Constr., LLC.: “A court cannot grant mandamus relief unless the error was raised in the trial court.” No. 05-22-00093-CV (March 3, 2022) (mem. op.) (quoting In re Rowes, No. 05-14-00606-CV, 2014 WL 2452723, at *1 (Tex. App.—Dallas May 30, 2014, orig. proceeding) (mem. op.)).

Texas rules about preservation of no-evidence points are generally more forgiving than the federal rules, although they are not without nuance, one of which became important in American Pride Xpress Logistics v. Joe Jordan Trucks: “Although [Appellants] moved for a directed verdict after appellee rested, and the trial court denied the motion, they proceeded to present their own evidence and did not re-urge the motion for directed verdict when the evidence closed. ‘If a party proceeds to present evidence after that party has moved for a directed verdict, such party must reurge the motion for directed verdict at the close of the case, or any error in its denial is waived.'” No. 05-20-00281-CV (Sept. 24, 2021) (mem. op.) (citation omitted).

Including deposition excerpts in a trial record can become complicated, and in American Pride Xpress Logistics v. Joe Jordan Trucks, it led to a preservation problem: “During appellee’s case in chief, it presented the testimony of Lee Cox, the attorney who prepared the deed ….  Cox testified through a videotaped deposition. Before the testimony was played for the jury, appellants’ attorney told the court, ‘We have asked that the court reporter not transcribe this portion since we’ve got a transcript of it.’ However, the transcript of Cox’s testimony was not made part of the record. Without Cox’s testimony, the reporter’s record is incomplete, and we must presume his testimony supported the trial court’s judgment.” No. 05-20-00281-CV (Sept. 24, 2021) (mem. op.).

This is a crosspost from 600Hemphill, which reviews business cases in the Texas Supreme Court. This case originated from the Fifth Court.

In a per curiam opinion issued without argument, the Texas Supreme Court reminded that it really meant its holding in Pike v. Texas EMC Management LLC, about the distinction between standing and capacity, as applied to the question whether a particular injury is suffered by the named plaintiff or the relevant business entity. Cooke v. Karlseng, No. 19-0829 (Jan. 22, 2021).

Section 55.002 The Texas Estates Code provides: “In a contested probate or mental illness proceeding in probate court, a party is entitled to a jury trial as in other civil proceedings.” But while “the right to a jury trial ‘is inviolate and one of the greatest rights guaranteed by out Texas and United States Constitutions,’ … the right is not self executing, and even after the right is properly invoked, a party must act affirmatively to preserve a complaint concerning the right’s denial. Thus, to preserve error, a party who has properly perfected its jury trial right must either object on the record if the trial court proceeds without a jury or otherwise affirmatively indicate that it intends to stand on its perfected jury trial right.” In re Ruff Management Trust, No. 05-19-01505-CV (Dec. 3, 2020) (mem. op.). The appellant in Ruff waived any jury-trial right by not making timely objection in the trial court.

Another preservation point from EYM Diner LP v. Yousef, No. 05-19-00636-CV (Nov. 24, 2020) (mem. op.) (emphasis in original), involves the structure of the charge on negligence. Defendant (ACCSC) complained that  also argues it is entitled to rendition of judgment in its favor because the plaintiff (Youssef) did not object to the omission of certain definitions from the charge, citing United Scaffolding v. Levine, 537 S.W.3d 463 (Tex. 2017). The Fifth Court disagreed:

• “First, ACCSC’s reliance on United Scaffolding is misplaced because Yousef pleaded a general negligence claim against ACCSC and obtained a liability finding from the jury based on general negligence at trial. In United Scaffolding, the plaintiff, James Levine, pleaded one theory (premises liability) and obtained a jury finding on a different theory (general negligence).”
• “Second, United Scaffolding preserved its arguments that the verdict was based on an improper theory of recovery by filing a motion for judgment notwithstanding the verdict.  Here, ACCSC filed no such motion and makes no such argument. ACCSC merely asserts charge error here. ACCSC waived any complaint about the charge by failing to object to the charge as discussed above. And, by failing to file a motion for judgment notwithstanding the verdict or other qualifying post verdict motion raising this argument, ACCSC also waived any complaint that Yousef was not entitled to obtain a jury finding as to ACCSC’s general negligence.” (emphasis added in the above).

“The trial judge in this case has a reputation for running a highly efficient courtroom in which he holds all parties to strict time limits for putting on their case. The record here shows this case was no exception. The truncated ‘charge conference’ appears to be one way in which the trial judge moves cases along and gets cases to the jury quickly. While we applaud the trial judge’s efficiency and respect for the jurors’  time, the use of a global denial of objections and requests based solely on the parties’ pretrial submission of proposed jury charges does not preserve issues of charge error for appellate review. See, e.g., Clark v. Dillard’s, Inc., 460 S.W.3d 714, 729–30 (Tex. App.—Dallas 2015, no pet.); see also Tex. R. Civ. P. 272, 273, 274. The reason is simple; a proposed jury charge filed pretrial standing alone does not meet the preservation of error requirements of rules 272, 273, and 274.”

EYM Diner LP v. Yousef, No. 05-19-00636-CV (Nov. 24, 2020) (mem. op.) (emphasis in original)

This is a crosspost from 600Hemphill, which follows business litigation in the Texas Supreme Court. 

The Texas Supreme Court recently summarized the sometimes-confusing law about preservation of objections an an expert’s testimony:

“Requiring an admissibility objection to the reliability of expert testimony gives the proponent a fair opportunity to cure any deficiencies and prevents trial and appeal by ambush. Thus, when an expert opinion ‘is admitted in evidence without objection, it may be considered probative evidence even if the basis of the opinion is unreliable.’ But conclusory or speculative opinion testimony is not relevant evidence because it does not make the existence of a material fact more or less probable. Evidence that lacks probative value will not support a jury finding even if admitted without objection. ‘Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.'”

Pike v. Texas EMC Management LLC, No. 17-0557 (June 19, 2020). While this quote eliminates the case citations in the original, the cited authorities provide further discussion of these principle and illustrate their applications in specific settings.

Good news, Charles timely appealed the default judgment against her. “Charles filed her notice of appeal fourteen days after the trial court entered judgment.”

Bad news, nothing to appeal: “Because Charles did not file a motion for new trial, she did not introduce any evidence extrinsic to the record to support her satisfaction of any of the Craddock factors. Consequently, we hold that Charles has waived appellate review of her complaint that the trial court’s default judgment should be set aside.” Charles v. Crown Asset Management LLC, No. 05-18-01139-CV (Nov. 26, 2019) (mem. op.).

The Fifth Court found that the following closing argument was not “incurable” (and thus, had to be objected to during trial). During voir dire, after noting the trial court’s instruction that lawyer argument was not evidence, Plaintiffs’ counsel said:

Despite that, I’ll make a pledge to you, everything I tell you will be 100-percent accurate and truthful. I have been known to make a mistake. If I make that mistake, I’ll own it in closing argument at the end of the case.

Later, during closing argument, defense counsel argued:

Do you remember the pledge that Plaintiffs’ counsel made to you before this trial started? If there was a mistake, he would own it. Okay. So, let’s look at that. He puts up on that overhead what my client says, “I’m responsible for the damages.” For the accident, yes. But what he doesn’t remind you of, he also asked my client, “Do you know what their injuries are, what their treatments are?” He had no idea. So, to insinuate that my client is going to say, “I accept all of this,” is ridiculous. That’s dishonest.”

The Court noted that “‘[u]nsubstantiated attacks on the integrity or veracity of a party or counsel’ has been cited as a type of jury argument that is deemed incurable,” but found that this argument was not incurable given the earlier argument of Plaintiffs’ counsel, Plaintiff’s counsel’s rebuttal of the argument later, and the jury verdict that was generally consistent with the evidence on the central trial issue about damages. Hopkins v. Phillips, No. 05-18-01143-CV (Oct, 29, 2019) (mem. op.)

It’s a simple but fundamental point – confirm that the record has the relevant order (or, that there is in fact such an order); see, e.g.:

• “Because the record does not show relator ever filed the motion, we cannot conclude the trial court has a legal duty to rule upon it.”  In re Johnson, No. 05-19-00708-CV (Oct. 21, 2019) (mem. op.); and
• Although appellant asks that the bond be reduced, the record before this Court does not contain a signed order setting the supersedeas bond. Without an order, there is nothing before this Court to review.” Chowdhury v. Wells Fargo Bank, No. 05-19-00965-CV (Oct. 25, 2019) (mem. op.)

Telfer v. Adams presented the question whether an objection to an affiant’s lack or personal knowledge was a defect in “form” or “substance,” and thus whether a trial court objection and ruling is necessary to preserve error about the affidavit’s consideration under Seim v. Allstate Texas Lloyds, 551 S.W.3d 161 (Tex. 2018). The Fifth Court sidestepped the question by concluding that the notary’s acknowledgement was sufficient to prove up the attached documents. The Court noted that its prior opinions were not consistent on the point, and cited an informative article by now-Magistrate Judge David Horan about the Fifth Circuit’s practices on this topic: “Because panels lack the authority to overrule one another, our first decision touching upon a question should control pending en banc reconsideration.” No. 05-17-01387-CV (Feb. 8, 2019) (mem. op.) (The mild incongruity of a rule about the resolution of uncertainty appearing in a memorandum opinion, which assumes that “the issues are settled,” Tex. R. App. 47.2, is a byproduct of 2003 rule amendments that reconfigured the types of appellate opinions in Texas.)

Nunez successfully sued Avelar for personal injuries, arising from a fall while installing a new window in a home owned by Avelar. The Fifth Court affirmed except as to damages for disfigurement, which Nunez had not pleaded for, but which the trial court found had been tried by consent. Specifically, the Court found that this examination did not establish trial by consent:

Q. What parts of your body were in pain?

A. In the arm.

Q. Do you also have a scar from the operation to your arm today?

A. Yes, of course.

Q. Can you show the Court the scarring of the arm?

A. It’s right here (indicating).

The Court: On the inside of the elbow? Can you see?

Defense counsel: I can see it, Your Honor, thank you.

Q. How long did it take for the elbow and the hand, the bones anyway, to heal?

A. More than half a year.

Q. Okay. And were you in pain during that time period?

A. Yes, of course.

The court saw this testimony as also relevant to elements of damage which had been pleaded; thus: “. This is, at best, a doubtful case for applying trial by consent, and trial by consent should not be inferred in doubtful cases.” Avelar v. Nunez, No. 05-17-00631-CV (Nov. 20, 2018) (mem. op.)

The vagaries of practice often test the deadlines imposed by the summary judgment rules. Jackson v. Motel 6 involved a late-filed summary judgment response, which the Fifth Court did not consider in its review of the merits. Several important and practical principles played a part in the analysis:

• A reminder that Seim v. Allstate Texas Lloyds, No. 17-0488, 2018 WL 3189568, at *3 (Tex. June 29, 2018) (per curiam), which clarified that a ruling is required to preserve an objection to the form of summary judgment evidence, applies to other objections raised in the course of summary judgment practice;
• While summary judgment papers are not technically “pleadings” under the Texas Rules, this language in the trial court’s order was sufficient to show an implicit denial of the appellant’s motion for leave to file a late response: “examined the timely pleadings filed in this matter . . . “‘; and
• Proactive steps help the record, avoiding observations such as this by the appellate court: . “Yet, Jackson failed to timely take any steps to seek a continuance of the hearing or response deadline. Instead, as she had done on two prior occasions, she waited until the eve of the hearing to seek relief from the trial court.”

No. 05-17-00487-CV (Aug. 17, 2018) (mem. op.)

In a time of much furor about “leaks” to the media, the Fifth Court addressed a more traditional form of “leak” in Allen v. State Farm Lloyds, reversing a directed verdict for the insurer in a coverage dispute about a homeowners’ “Water Damage Endorsement.” In a detailed opinion, the Court found that the plaintiffs’ experts made legitimate, non-conclusory points about whether home damage was caused by plumbing leaks, and thus whether “deterioration” occurred within the meaning of the Endorsement. In a footnote, the Court also reminds of the importance of moving to strike allegedly improper expert testimony, and continuing to assert the original objection as the testimony unfolds at trial. No. 05-16-0018-CV (Aug. 1, 2017) (mem. op.)

Beasley v. Richardson, while involving facts unique to pro se litigation, provides a valuable reminder about preservation with relation to the handling of a nonsuit: “Error in dismissing a case with prejudice cannot be raised for the first time on appeal and must be presented to the trial court. To preserve a complaint of error in a judgment for appellate review, Beasley was required to inform the trial court of his objection by a post-judgment motion to amend or correct the judgment or a motion for new trial.” (citations omitted). No. 05-15-01156-CV (Sept. 20, 2016) (mem. op.)

A high-profile fee dispute led to holdings that (1) an attorney can recover in quantum meruit in connection with an oral contingent fee agreement, notwithstanding the other legal problems with such agreements; (2) legally sufficient evidence of the attorney’s “valuable compensable global settlement services” supported the verdict on his quantum meruit theory; (3) claimed error on the narrow scope of a fiduciary duty instruction was not preserved without a specific objection to the scope issue; and (4) the trial court did not abuse its discretion in refusing a spoliation instruction, when evidence showed that the destruction of the relevant emails resulted from a routine upgrade process.  Shamoun & Norman, LLP v. Hill, No. 05-13-01634-CV (Jan. 26, 2016).  The Court rendered judgment on quantum meruit.

Appellant complained that the trial judge had further proceedings after a nonsuit.  While also affirming as to whether a nonsuit occurred (finding that one did not happen), the Fifth Court reminded of the importance of timely objection: ” Generally, to preserve a complaint for appellate review, a party must timely present the complaint to the trial court and seek a ruling on the complaint . . . .  In this case, not only did appellants not object when the case was reinstated, they affirmatively indicated that they did not object. As a result, this issue was not preserved for appellate review.”  Gonzalez v. Gonzalez, No. 05-14-01361-CV (Dec. 29, 2015) (mem. op.)

The Court of Appeals has affirmed a jury verdict and judgment of approximately $705,000 in a contract dispute between a medical products manufacturer and a distributor. The parties’ agreement prohibited the distributor from selling undisclosed competing products and allowed the manufacturer to terminate the agreement for cause if the distributor violated that provision. The manufacturer terminated the agreement, and the distributor filed suit. On appeal, the manufacturer argued that multiple affirmative defenses should have defeated the distributor’s claim as a matter of law, but the Court of Appeals disagreed. There was some evidence in the record that the distributor had disclosed the competing products, and a rather confusing jury question that combined breach with the defenses of prior material breach and waiver led to the manufacturer’s failure to challenge all independent grounds for the jury’s verdict. And with respect to a number of additional issues, the Court of Appeals generally held that the manufacturer had failed to present them to the trial court of preserve their arguments for appeal.

Blackstone Med., Inc. v. Phoenix Surgicals, LLC, No. 05-13-00870-CV

The Texas Citizens’ Participation Act continues to be a powerful tool in certain types of commercial cases. In this instance, the publisher of Petroleum News Bakken managed to obtain and affirm a judgment of dismissal and attorney fees in a business disparagement and tortious interference case. The dispute arose out of a newspaper article that stated no records could be found for wells that Breitling Oil & Gas claimed to have drilled in North Dakota. The publisher moved to dismiss under the TCPA, which shifted the burden to the burden to the plaintiff to come forward with prima facie evidence of each element of its claims. Breitling responded with a notice of nonsuit, but that didn’t stop the trial court from moving forward with the hearing and awarding the defendant $88,444.58 in attorney fees and expenses. The Court of Appeals affirmed, holding that the nonsuit did not moot the pending motion to dismiss because the defendant had already made a “pending claim for affirmative relief” through its request for attorney fees and sanctions. The Court also rejected Breitling’s argument that the attorney fees should have been tried to a jury, noting that the record did not show that Breitling ever objected to the trial court making findings on the reasonableness of the fees awarded.

Breitling Oil & Gas Corp. v. Petroleum Newspapers of Alaska, LLC, No. 05-14-00299-CV

A special appearance in a probate case has led to the exceedingly rare grant of a motion for sanctions for the filing of a frivolous appeal. In this instance, the appellant managed to make a general appearance in the case before filing the special appearance — a fact that the appellant had failed to even address in response to the appellee’s briefing in the probate court. On top of that, the appellant had failed to preserve his argument on appeal that the special appearance was somehow severable from the motion to show cause in which he entered his general appearance, nor had the appellant objected (and thereby preserved error) when the probate judge overruled the special appearance without holding a separate hearing on it. Although the appellee had not submitted any evidence of her damages to support the award of sanctions, the Court of Appeals granted her leave to file such evidence within ten days of the opinion.

Estate of Ardyce Deuel-Nash, Deceased, No. 05-14-00128-CV

A builder sued the prospective buyers of a townhome for breach of contract and fraud after they backed out of the sale before closing. The Court of Appeals affirmed a jury verdict for the buyers. The seller’s first issue on appeal was simply that “the evidence demonstrates [buyers] committed fraud against [seller],” a complaint that was too broad and generic to preserve any specific error. The Court also affirmed an award of $9,675 in attorney fees to the buyers under a prevailing-party clause of the contract, holding that the seller’s briefing about that award failed to discuss the evidence concerning the fees and did not explain how the cited case law should be applied to the jury’s finding.

Davenport Meadows LP v. Dobrushkin, No. 05-12-01471-CV

The Court of Appeals has issued a lengthy opinion affirming the denial of a special appearance. The appeal arises out of an apparently contentious case involving claims and counterclaims for breach of contract, fraud, and defamation. Defendant Sebastian Lombardo — an Italian citizen who lives in Belgium and works in France — challenged personal jurisdiction by invoking the fiduciary shield doctrine, which protects officers of corporations from being personally haled into court in Texas due to their contacts as representatives of the corporation. Unfortunately for Lombardo, his argument in the trial court had presented that issue as a matter of general personal jurisdiction, and the trial court had found him to be subject to specific personal jurisdiction. Having failed to present the fiduciary shield doctrine as a bar to the exercise of specific personal jurisdiction, the issue was also waived on appeal. The opinion goes on to affirm the legal and factual sufficiency of the evidence supporting the trial court’s findings of jurisdictional facts, as well as its application of the law to those facts, and therefore affirmed denial of the special appearance.

Lombardo v. Bhattacharyya, No. 05-13-01583-CV

Last month, we noted an opinion that teased, but did not answer, an interesting question: Does Chapter 74 of the Civil Practice & Remedies Code require a plaintiff to produce an expert report for a breach of contract claim arising out of the provision of medical services? The Court of Appeals has now issued an amended opinion in that same case that addresses that very issue. While still holding that the defendant/counterclaimant had failed to preserve error by failing to make a proffer of the excluded evidence — namely, that his mother had been placed in a straitjacket despite the assisted-living facility’s contract stating that it was a “restraint-free community” — the revised opinion adds a new section on the expert report issue. The Court now concludes that even if the evidentiary issue had not been waived, the trial court still properly excluded that evidence because it was still a healthcare liability counterclaim that required the defendant to produce a Chapter 74 expert report. Since the defendant failed to do so, the trial court did not abuse its discretion in excluding evidence of the resident being placed in restraints.

Ferguson v. Plaza Health Servs. at Edgemere (amended opinion), No. 05-12-01399-CV

A trial court that dismisses a lawsuit after a motion made under the Texas Citizens Participation Act “shall award to the moving party . . . reasonable attorney’s fees . . . incurred in defending against the legal action as justice and equity may require.” Tex. Civ. Prac. & Rem. Code § 27.009(a)(1). In this case, the trial court signed its order on March 6 granting the defendant’s motion to dismiss the lawsuit, then followed it up on April 14 with an order awarding defendant $15,616 in attorney fees and sanctioning the plaintiff another $15,000. The plaintiff claimed that the April 14 award was a nullity because the March 6 order was a final judgment. The Court of Appeals disagreed, first order did not purport to dispose of the defendant’s claim for fees and costs, and both the court and the parties recognized that there had not been a final judgment because they continued to litigate the additional issues. The Court of Appeals went on to rule on several other issues, concluding among other things that the plaintiff had waived any complaint about the trial court’s failure to timely hold a hearing on the motion to dismiss by failing to object in the trial court; that the statements attributed to the defendant were not capable of being defamatory; and that the plaintiff had not pointed to any evidence of damages to support its tortious interference claim. The judgment was therefore affirmed.

American Heritage Capital LP v. Gonzalez, No. 05-12-0892-CV

A memorandum opinion teases, but does not answer, an interesting question: Does Chapter 74 of the Civil Practice & Remedies Code require a plaintiff to produce an expert report for a breach of contract claim arising out of the provision of medical services? Margaret Miller’s son placed her in a “skilled nursing resident program” at Plaza Health Services and contractually agreed to be the “responsible party” for payment. Among other things, the contract provided that the facility was a “restraint-free community,” and that no restraints of any type would “be used as punishment or as a substitute for more effective medical nursing care or for the convenience of the community staff.” After the nursing facility sued for unpaid bills, he he counterclaimed for breach of contract, DTPA, and medical negligence claims. The negligence claims were dismissed due to the failure to file a medical expert report, and the trial court granted a motion in limine to exclude evidence of restraints or straitjackets used on Ms. Miller. Unfortunately, error was not preserved on that issue due to the lack of a proper proffer of the excluded evidence. The grant or denial of a motion in limine does not preserve error by itself. If the motion is granted, the losing party must, during trial, (1) approach the bench and ask for a ruling, (2) formally offer the excluded evidence, and (3) obtain a ruling on the offer. Here, the appellants argued about the relevance of the evidence, but never actually offered it or obtained a ruling during trial on its admissibility. Accordingly, error was not preserved, and judgment for the nursing facility was affirmed.

Ferguson v. Plaza Health Servs. at Edgemere, No. 05-12-01399

After having lost on summary judgment, the plaintiff filed an amended petition, omitting all but one defendant, and then appealed the decision.  The Court of Appeal found that, because the plaintiff had omitted these parties from his amended petition, his claims against these defendants were not preserved and dismissed the appeal.

Pipes v. Hemingway

Mark Palla filed suit against a group of defendants for breach of contract and tortious interference arising out of the breach of a sales commission agreement. The jury returned a verdict for $278,718 on the contract claim against Bio-One, Inc., and exactly $100,000 for tortious interference against Aydemir Arapoglu and Transtrade LLC. Palla argued that the tortious interference damages should have been the same as the breach of contract award and that each of the defendants should be jointly and severally liable for the entire amount. The trial court disagreed, entering judgment against Bio-One for $178,718 and against all three of the defendants, jointly and severally, for an additional $100,000. Palla appealed, but the Court of Appeals affirmed. Although generally the measure of damages for tortious interference is the same as the measure of damages for the breach of the contract, a tortious interference defendant is only liable for damages that are proximately caused by the interference. Thus, the question on appeal was whether there was any evidence that the defendants’ interference had only caused a portion of Palla’s damages. But Palla had not brought forward any record of the trial proceedings, due to the belief that he was entitled to the full amount of contract damages as a matter of law. Since the Court of Appeals could not determine whether the evidence supported only a partial damage award for tortious interference, Palla could not demonstrate that the trial court had erred by refusing to disregard the jury’s finding.

Palla v. Bio-One, Inc., No. 05-12-01657-CV

The Court of Appeals has issued a lengthy opinion in a breach of contract case. Defendant Richard Berryman and his company, Berryman South Fork, claimed that J. Baxter Brinkmann International Corp. had constructively terminated the contract and owed them $160,000 in unreimbursed expenses. JBBI got to the courthouse first, however, and claimed that Berryman had breached the contract by failing to continue his performance. The trial court granted summary judgment in favor of JBBI and awarded it more than $500,000 in damages, attorney fees, and interest.

Among many other issues, the Court of Appeals held that JBBI could not recover approximately $290,000 in breach of contract damages for payments it made to Berryman during the months following his attempted repudiation of the contract. That holding flows from the 88-year-old case of Osage Oil & Ref. Co. v. Lee Farm Oil Co., 230 S.W.2d 518 (Tex. Civ. App.–Amarillo 1921, writ ref’d). In that case, the court held that when a party is served with notice that the other party is repudiating their contract, the first party cannot continue to perform it and thereby increase the damages to which it would otherwise be entitled. However, that principle apparently does not extend beyond the breach of contract claim, as the Court’s opinion affirmed JBBI’s award of even greater damages for money had and received. The opinion also includes multiple discussions regarding the preservation of issues for appeal, including through pleadings, evidentiary objections, and briefing on appeal.

Berryman’s South Fork, Inc. v. J. Baxter Brinkmann Int’l Corp., No. 05-12-00492-CV

A short memorandum opinion from the court of appeals highlights the importance of timely objecting even in unusual circumstances. At a status conference on July 26, the trial court directed the parties to file any motions, responses, or replies by August 10, and stated that the court would rule on those motions the week of August 15. Nobody objected to that timetable. Both parties filed motions for summary judgment on August 10, and on August 16 the trial court granted Ford’s motion and denied Crear’s — without benefit of either a response or a hearing on Ford’s motions. The court of appeals rejected Crear’s claim that the trial court had abused its discretion by summarily ruling in accordance with that schedule, holding that Crear had failed to preserve any issue for appellate review because he had not objected to either the schedule or the lack of a hearing on Ford’s motion.

Crear v. Ford Motor Co., No. 05-11-01363-CV