Preserving error at the trial court level is a crucial element of practice that presents numerous pitfalls for unaware or unprepared attorneys. Walking through the entire trial process, from pleading to post-verdict motions, this article seeks to sift through the complexity and provide lawyers with knowledge of the steps involved in preserving error.
- Preservation Basics
Preservation of error is one of the most fundamental aspects of the appellate process. Unfortunately, the heat of trial serves to make these sometimes complicated and arcane procedures a trap for unwary lawyers. Failure to preserve error moots even the most sophisticated argument on appeal. As a result, mastery of these rules is a prerequisite to zealous and effective advocacy on behalf of your client.
Rule 33.1 is the controlling rule on the preservation issue. The rule requires, generally, that the record show a complaint to the trial court by timely request, objection, or motion. Tex. R. App. 33.1. Additionally, the objection must be specific enough that the trial court is aware of the complaint. The trial court must also make an implicit or explicit ruling on the issue. At the very least, the trial court must refuse to rule, coupled with an objection by the complaining party.
An objection is sufficiently specific if it identifies the issue, allows the trial court to make an informed ruling, and permits the other party to remedy the defect if it can. McKinney v. Nat’l United Firestone Co., 772 S.W.2d 72, 74 (Tex. 1989). The trial court’s ruling may be either express or implied, as long as the record clearly indicates the trial court’s decision. Tex. R. App. P. 33.1(a). The safest course of action, however, is to obtain a signed order that rules on the motion, objection, or request.
Important prudential considerations underscore the preservation rules. The preservation serves three principal purposes.
Conserving Judicial Resources: Requiring parties to raise complaints at trial conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds. This procedure allows the trial court to serve as gatekeeper, limiting the flow of litigation to the appellate courts.
Promotes Fairness: A party should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time. The preservation system prevents this kind of ambush-style litigation.
Increase Accuracy of Judicial Decision Making: Giving trial courts the first opportunity to consider and rule on error allows the parties to develop and refine their arguments. Judicial review further focuses and analyzes the question at issue, ensuring it is decided correctly.
See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003).
Therefore, error must be preserved at the trial stage, and the error must be raised on appeal in order to justify reversing judgement. See In re V.L.K., 24 S.W.3d 338, 343-44 (Tex. 2000) (stating that “[a] party complaining of charge error must properly preserve error in the trial court and must raise the issue on appeal”).
Additionally, it is important to remember that error is not automatically reversible. Counsel must also demonstrate that harm results from the error if the error is to be
reversed. Harmful error is a specific term of art. Counsel must demonstrate that a different judgment probably would have been entered but for the error. Including an explanation of the resulting harm when making the objection helps to prove this key element on appeal.
What follows is a brief summation of the steps required to sufficiently preserve error at the various stages of trial.
- PRETRIAL PROCEEDINGS AND MOTION PRACTICE
Compared to the complex processes involved in preserving error in voir dire, preserving error in other pretrial proceedings is a relatively straightforward process. Generally, error is preserved via objection, but there are some other mechanisms to be aware of.
Despite relatively lax pleading requirements in the state of Texas, a party filing a lawsuit is required to plead each ground for recovery it seeks. If the defect you are challenging is non-jurisdictional, preserve error by filing a special exception.
- Special Exceptions
To object to a party’s deficient pleading, a filed special exception must state the pleading deficiency “intelligently and with particularity,” such that it sufficiently notifies the opposing party of the defect. Tex. R. Civ. P. 91. To ensure that the special exception comes to the attention of the trial judge, obtain a hearing. This ensures that the special exception is brought to the judge’s attention in a timely fashion.
Generally, if the trial court sustains a special exception, it must give the non-excepting party the opportunity to amend. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). If the non-excepting party believes that the trial court committed error by granting the special exception, the party can preserve error for appeal by refusing to amend the petition. Fuentes v. McFadden, 875 S.W.2d 772, 779 (Tex. App.–El Paso 1992, no writ).
A party may file an amended pleading within seven days of trial only if the party has leave of the court. Tex. R. Civ. P. 63.To preserve the right to complain about the court’s error in granting a motion for leave to amend, move for a continuance alleging surprise and seek attorneys’ fees. State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994). To preserve the right to complain when a pleading is untimely filed, a party must move to strike. Forscan Corp. v. Dresser Ind., 789 S.W.2d 389 (Tex. App.—Houston [14th Dist.] 1990, no writ).
- Jurisdiction and Venue Issues
A Texas court does not have personal jurisdiction over non-resident defendants beyond what the Due Process Clause and the Texas Long-Arm statute provide. Unlike subject matter jurisdiction, which can be raised at any time on appeal regardless of whether the party raised the issue below, issues related to personal jurisdiction and venue must be preserved or the party risks waiving any challenges on appeal.
Appendix A contains the rule in full.