SOMMERMAN3811 Turtle Creek Blvd., Suite 1400 Dallas, Texas 75219 214 720-0720 POSITION: Senior Partner, Sommerman & Quesada L.L.P., 1991- Present EDUCATION: Juris Doctorate, South Tex
Abstract
Preservation of error is a foundational element of the appellate process, ensuring that issues are properly raised for review on appeal Yet the pressures and mistakes that can arise during trial often turn these complex, arcane procedures into traps for unwary lawyers, underscoring the need for careful, timely objections and precise records to protect appellate rights.
Failure to preserve error moots even the most sophisticated argument on appeal
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, and it generally requires that the record show a complaint to the trial court by timely request, objection, or motion.
Under Texas Rule of Appellate Procedure 33.1, objections must be sufficiently specific to put the trial court on notice of the exact complaint The trial court must issue a ruling on the issue, whether explicit or implicit; if no ruling is made, the record should show the court’s refusal to rule in conjunction with the party's objection, in order to preserve the issue for appellate review.
An objection is sufficiently specific when it clearly identifies the issue, enables the trial court to render an informed ruling, and gives the other party a chance to remedy the defect if possible This standard, cited in McKinney v Nat’l United Firestone Co., helps ensure objections are precise, actionable, and conducive to efficient litigation.
1Appendix A contains the rule in full.
Why Preserve Error?
PRETRIAL PROCEEDINGS AND MOTION PRACTICE
Preserving error in pretrial proceedings other than voir dire is generally straightforward compared with the more complex requirements of voir dire In most cases, raising an objection preserves error, but attorneys should also recognize other preservation mechanisms that may apply depending on the jurisdiction and the specific phase of the trial.
Pleadings
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
Where the non-excepting party believes the trial court erred by granting the special exception, the error may be preserved for appeal by refusing to amend the petition This rule is stated in Fuentes v McFadden, 875 S.W.2d 772, 779 (Tex App.–El Paso 1992, no writ).
Amendments
A party may file an amended pleading within seven days of trial only if the party has leave of the court TEX R.
Under Civil Procedure Rule 63, to preserve the right to challenge the court’s error in granting a motion for leave to amend, a party should seek a continuance on the grounds of surprise and request recovery of attorneys’ fees, as supported by 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
Special Appearances
One key mechanism to challenge personal jurisdiction is the special appearance A special appearance lets a party contest personal jurisdiction without risking waiver via a general appearance If the court denies the special appearance, the order is interlocutory, allowing for an immediate appeal.
To preserve error in a special appearance, parties must strictly comply with Texas Rule of Civil Procedure 120a The party challenging the court’s jurisdiction must file the appearance before any other plea, pleading, or motion under TEX R CIV P 120a.
At the hearing, secure a clear ruling on every objection; on appeal, you must challenge the trial court’s findings of fact in addition to its legal conclusions, or the facts will carry the weight and effect of a jury verdict, as Mondial, Inc v Karcher demonstrates.
(Tex App.–Houston 2004, no pet.).
Motion to Transfer Venue
It is the responsibility of the plaintiff to establish proper venue
When a party believes the venue is improper, the defendant bears the responsibility to challenge it, and a motion to transfer venue should be filed concurrently with, or before, the first responsive pleading (excluding special appearances) If these deadlines are missed, the party may waive its right to appeal.
Estes, Preservation of Error: From
Filing the Lawsuit Through Presentation of Evidence, 30 St Mary‘s L.J 997
In addition to filing the motion concurrently with or prior to any other plea, the motion can be accompanied by affidavits supporting the venue facts
Affidavits do not need to be verified to preserve error in a venue challenge The motion should clearly state that the county where the action is pending is not proper under either mandatory or permissive venue statutes To effectively challenge venue, the moving party must specifically deny each asserted fact relating to venue.
A plaintiff is not required to file a written response to successfully preserve error on appeal in a change of venue situation See Watson v City of Odessa, 893 S.W.2d 197, 200 (Tex App.–
In El Paso 1995, the writ was denied However, if a party decides to file one and the defendant has specifically denied venue facts, it is the plaintiff's burden to establish support for the venue facts via a verified affidavit Id at 1023.
Summary Judgment Issues
Defect in the Motion
To challenge defects in the motion itself, a party must follow the same pleading-defect procedures described above Defects in the form of the pleading must be raised by a special exception, and if sustained, the opposing party must be given an opportunity to amend, with the error preserved only if the opposing party declines to amend Mathis v Bocell, 982 S.W.2d
52, 60 (Tex App.–Houston [1st Dist.]
1998, no pet.) For instance, to preserve a complaint that movant‘s grounds are unclear, specially except in writing before the hearing Lavy v
Nonmoving Party Seeking Additional Time for Discovery
Occasionally, a nonmoving party may object to a ruling on summary judgment due to inadequate time for discovery
Reversible error can occur when a judge rules before the parties have had adequate discovery time To preserve this error for appeal, the nonmoving party should first file an affidavit explaining the need for further discovery or file a motion for continuance to extend the discovery period.
To lock in a ruling, the party should obtain a signed order While some courts have held that a trial court implicitly overrules a request for additional discovery time when it decides the summary judgment motion, the safer course is to secure a formal, signed order to avoid ambiguity.
795 n 1 (Tex App.–Houston [14th Dist.]
2000, no pet.) If these steps are properly completed, the error is properly preserved for the next stage of the process.
Evidentiary Objections
is attacking the evidence on appeal, it must have been preserved correctly
When an opposing party submits an affidavit to counter your summary judgment motion, you must file a written objection that is specific enough to allow the opposing party to remedy the defect This precision preserves issues for appellate review by giving the other side a clear, actionable path to fix the deficiency Randy Wilson highlights this requirement in A View From the Bench: Why Can’t Lawyers Preserve Objections?
Other Pretrial Hearings and Motions
Hearings Generally
On most motions, a party does not waive error by simply failing to obtain a hearing on a particular motion Debbie
McComas & Ben Mesches, Preserving Error Before Trial, 29 The Advoc (Texas) 18,
Winter 2004, issue 21, explains that if a motion requires presenting evidence and no hearing is held, any error is waived Since the appellant bears the burden of proffering the record to show error, all evidentiary hearings must be made part of the record.
Motion for Continuance
In their helpful article about preserving error in pretrial motions, McComas and Mesches write that to preserve error regarding a motion for continuance sought to complete discovery, a party should:
(3) explain the cause of your failure to obtain it;
(4) show the evidence is not available from other sources; and
(5) state that the continuance is not for delay only, but so that justice will be done
Id.; TEX R CIV P 251; Laughlin v Bergman, 962 S.W.2d 64, 65 (Tex App.— Houston [1st Dist.] 1983, writ dism‘d)
A party that completes these steps will be able to appeal an adverse ruling on the issue.
Sanctions
Trial courts have discretion to impose sanctions for discovery abuses, and a party seeking to challenge a sanctions ruling on appeal must properly preserve the issue at the trial court level This principle, discussed by Debbie McComas and Ben Mesches in Preserving Error Before Trial (The Advocate, Texas, Winter 2004), underscores the need for timely objections and proper preservation to enable appellate review of discovery sanctions.
If the discovery sanctions are preclusive in nature, the party must ensure that he or she makes a proper
―offer of proof,‖ pursuant to TEX R.
Under Evidence Rule 103(a)(2), a short, factual recitation of what the testimony would show is enough to constitute evidence to preserve an issue for appeal In re N.R.C., 94 S.W.3d 799, 804 (Tex App.–Houston [14th Dist.] 2002, pet denied) confirms this standard, noting that without such an offer of proof the appellate court has no basis for review This principle is also reflected in David E Keltner, Tex Prac Guide: Discovery § 12.179.
In 2013, it was noted that a complaining motion that contains only the name of the client is not sufficient to preserve error as to additional sanctions against the attorney This principle is illustrated by Valdez v Valdez, 930.
Motion in Limine
In Texas state courts, motions in limine are used to prompt a party to approach the bench and examine the admissibility of the evidence at issue before that evidence is offered to the jury, a principle explained by Elaine A Grafton Carlson.
McDonald & Carlson Tex Civ Prac §
19:3 (2d ed 2012) Simply put, a complaint that a judge improperly excluded evidence can in no way be predicated on an adverse ruling on a motion in limine Randy Wilson, A View
From the Bench: Why Can’t Lawyers
To challenge the admissibility of evidence on appeal, a party should not rely on motion in limine rulings to preserve error Instead, any challenge to the admissibility of evidence should be raised by objection at trial.
Expert Witnesses
VOIR DIRE
Failure to excuse even one disqualified juror in the jury selection process constitutes reversible error
To preserve error for appeal, the losing party must follow the proper procedural method, or the objection will be waived The process of preserving error for a disqualified juror is technical and precise, demanding strict adherence to a specific rule While the prescribed procedure may not always be logical or intuitive, the essential task for counsel is to know and apply the rule correctly.
2Appendix B provides a checklist for preserving error at voir dire a n d
O b j e c t i o n Before exercising its peremptory challenges, a complaining party must first notify the trial court of two things:
Hallet v Hous Nw Med Ctr., 689 S.W.2d 888, 890 (Tex 1985)
1 No magic words are necessary
No magic words are required to preserve error on challenges for cause, but specificity matters The challenging party must expressly state that they will be required to use peremptory strikes because of the court’s failure to strike one or more jurors whom the party challenged for cause The challenger must also state that, as a result of the court’s ruling, specific objectionable jurors against whom they would have exercised peremptory strikes will remain on the jury.
Counsel must identify the objectionable jurors who will remain on the jury, naming each individual who will sit on the panel after the peremptory strikes are applied Under Hallet, the objecting party is required to specify, with precision, every juror who will continue to serve once the peremptory challenges have been exercised.
Counsel can avoid waiver of an objection to a juror by naming the objectionable juror and/or reciting the juror’s number on the record; it is not necessary to explain why the juror is objectionable, only to identify the juror (Hallet, 689 S.W.2d at 890).
3 Use peremptory strikes on objectionable jurors
During voir dire, counsel must deploy peremptory strikes to remove jurors the court refuses to strike for cause, and the objecting party must strike those jurors it contends should have been removed for cause This requirement mirrors the directive in Hallet, which holds that the complaining party will be forced to use its peremptory strikes on jurors who should have been struck for cause, thereby limiting its ability to use strikes on other panel members who will actually serve on the jury.
4 Make the objection prior to executing the peremptory strike
Counsel‘s objection must be timely
The complaining party must advise the trial court of its objection while the court still has the ability to correct the error This means the objecting party must bring the objection to the trial court’s attention before exercising its peremptory strikes, because at that point the judge could grant additional challenges for cause, thus curing any harm.
The record must clearly demonstrate when counsel exercised the peremptory strikes Because timing is so important, counsel must assure that the appellate record clearly demonstrates timeliness
To ensure the objection appears in the record, it must be raised orally, and the record must clearly show that counsel voiced the objection before she exercised her peremptory strikes.
A party ―exercises‖ peremptory strikes when it ―delivers‖ or ―tenders‖ its written list of strikes to the court McCluskey v Randall’s Food Mkts., Inc., No 14-03-01087-CV, 2004 WL
2340278 at *4-5 (Tex App.–Houston [14th Dist.] 2004, pet denied) (mem op.)
Delivery of the list occurs when it is handed to the court If the record does not indicate when the list of strikes was delivered—and thus does not show that the party objected before the strikes were exercised—any objection to the failure to strike for cause is waived.
To avoid timing-related defects in the court record, counsel should simply instruct the court reporter to let the record reflect that the list of peremptory strikes is being delivered to the court This ensures the submission timing is documented clearly and prevents any ambiguity about when the list was provided.
B The Requirement to Show Harm
Failing to strike an unqualified juror for cause does not automatically constitute a harmful error in the jury-selection process; real harm occurs only when the complaining party must use its peremptory challenges on one or more unqualified jurors who were not subjected to a challenge for cause.
On appeal, the complaining party must demonstrate that it was forced to endure objectionable jurors because of the judge's error This principle implicitly requires the appellant to have sought to strike those jurors whom the trial court refused to strike for cause.
Harm occurs because those strikes were not available for use on one or more remaining panel members who were objectionable
Though trial court judges have broad discretion regarding the admissibility of evidence, a judge that abuses his discretion commits reversible error
Polly Jessica Estes, Preservation of
Error: From Filing the Lawsuit Through
Presentation of Evidence, 30 St Mary‘s
103(a)(1) governs the objection process in these situations
Texas Rule of Evidence 103(a)(1) requires a timely objection or motion to strike to be made and preserved on the record, with the specific ground for the objection clearly stated As with other error-preservation situations, the party must show harm and obtain a ruling on the objection.
A timely objection is made as soon as the reason the objection is raised becomes apparent Polly Jessica Estes,
Beall describes three reasons that timelessness is imperative in these situations
Beall v Ditmore, 867 S.W.2d 791, 794 (Tex App.–El Paso 1993, writ denied)
Litigants should make objections immediately before a piece of evidence is offered Courts have allowed wiggle room to litigants in some cases Beall,
867 S.W.2d at 795 holds that an objection can be timely even if a party waits until after a second question is asked before approaching the bench to object to the answer of the first question This demonstrates that timely objections may be preserved despite a delayed objection, as long as the objection is properly directed toward the issue in question However, it is prudent not to push the limit and risk failing to comply with the Rule.
Rule 103 implies that a party need not state the specific ground for the objection if the ground for the objection is apparent through the context of the situation TEX R EVID.
103(a)(1) Something is ―apparent from the context‖ only if the record itself demonstrates the context Polly Jessica
The safest course of action is to identify the objectionable material directly rather than relying on context, and to specify the grounds for the objection to avoid waiving it Objections that are too general are not true objections and can waive the party’s right to challenge the material, a principle illustrated in Estes (30 St Mary’s L.J at 1069) and reinforced by Ramirez v Johnson.
In 1980, the writ cited as n.r.e included the instruction “please note our exception to the court's ruling allowing that evidence to be presented to the jury,” but it was treated as a general objection and, as a result, was not sufficiently preserved on appeal.
Content and Form of the Objection
Identify objectionable jurors
Counsel must explicitly identify the objectionable jurors who will remain on the jury after the peremptory strikes Under Hallet, the objecting party is required to name, with particularity, every objectionable juror who will continue on the panel once the peremptory challenges have been made.
Hallet, 689 S.W.2d 890, holds that counsel can avoid waiver by identifying the objectionable juror on the record—either by naming the juror or by reciting the juror’s number It is not necessary to explain why the juror is objectionable; the key requirement is simply that the juror be identified.
Use peremptory strikes on objectionable jurors
During jury selection, counsel must use peremptory strikes to remove panel members the court refuses to strike for cause, and the objecting party must strike jurors it claims should have been struck for cause This requirement aligns with the directive in Hallet, which holds that the complaining party will be forced to allocate its peremptory strikes to jurors who should have been struck for cause, thereby preventing those jurors from being used to strike others who will actually serve on the jury.
Make the objection prior to exercising your peremptory strike
Counsel‘s objection must be timely
To preserve the record, the complaining party must advise the trial court of its objection while the court still has authority to correct the error In practical terms, this means raising the objection before exercising peremptory challenges, because at that stage the judge could grant additional challenges for cause, thereby curing any harm.
The record must clearly demonstrate when counsel exercised the peremptory strikes Because timing is so important, counsel must assure that the appellate record clearly demonstrates timeliness
To assure that the objection appears in the record, it must be made orally In addition, the record must clearly demonstrate that counsel stated the objection before she ―exercised‖ peremptory strikes
A party ―exercises‖ peremptory strikes when it ―delivers‖ or ―tenders‖ its written list of strikes to the court McCluskey v Randall’s Food Mkts., Inc., No 14-03-01087-CV, 2004 WL
2340278 at *4-5 (Tex App.–Houston [14th Dist.] 2004, pet denied) (mem op.)
The list is ―delivered‖ when it is handed to the court Id If the record does not reflect when the list of strikes was delivered and, thus, does not establish that the party‘s objection was made before its strikes were exercised, any complaint concerning the failure to strike for cause is waived
To prevent a timing defect in the court record, counsel should simply ask the court reporter to let the record reflect that the list of peremptory strikes is being delivered to the court, ensuring the timing of this action is properly documented.
Ensure that the timing of the objection is on the record
Failing to strike an unqualified juror for cause does not automatically amount to a harmful error Harm arises when the complaining party must use its peremptory challenges on one or more unqualified jurors who were not subjected to a for-cause challenge.
On appeal, the complaining party must show that it was compelled to accept objectionable jurors because of the judge's error This standard implicitly requires the party to strike juror(s) the trial court refused to strike for cause.
Harm occurs because those strikes were not available for use on one or more remaining panel members who were objectionable
Though trial court judges have broad discretion regarding the admissibility of evidence, a judge that abuses his discretion commits reversible error
Polly Jessica Estes, Preservation of
Error: From Filing the Lawsuit Through
Presentation of Evidence, 30 St Mary‘s
103(a)(1) governs the objection process in these situations
Under Texas Rule of Evidence 103(a)(1), a timely objection or motion to strike must be placed on the record, and the objecting party must specify the exact ground for the objection Like other error-preservation contexts, the party must demonstrate harm and obtain a ruling on the objection.
A timely objection is made as soon as the reason the objection is raised becomes apparent Polly Jessica Estes,
Beall describes three reasons that timelessness is imperative in these situations
The Requirement to Show Harm
Evidence
Though trial court judges have broad discretion regarding the admissibility of evidence, a judge that abuses his discretion commits reversible error
Polly Jessica Estes, Preservation of
Error: From Filing the Lawsuit Through
Presentation of Evidence, 30 St Mary‘s
103(a)(1) governs the objection process in these situations
Under Tex R Evid 103(a)(1), a timely objection or motion to strike must appear on the record, and the objecting party must state the specific ground for the objection Like other error-preservation situations, the party must establish harm and obtain a ruling on the objection.
A timely objection is made as soon as the reason the objection is raised becomes apparent Polly Jessica Estes,
Beall describes three reasons that timelessness is imperative in these situations
Beall v Ditmore, 867 S.W.2d 791, 794 (Tex App.–El Paso 1993, writ denied)
Litigants should make objections immediately before a piece of evidence is offered Courts have allowed wiggle room to litigants in some cases Beall,
According to 867 S.W.2d at 795, an objection can be timely even when a party waits to object until after a second question has been asked and then approaches the bench to challenge the answer to the first question Nevertheless, it is best not to push the limit to ensure compliance with the Rule and to preserve proper trial procedure.
Rule 103 implies that a party need not state the specific ground for the objection if the ground for the objection is apparent through the context of the situation TEX R EVID.
103(a)(1) Something is ―apparent from the context‖ only if the record itself demonstrates the context Polly Jessica
Estes (30 St Mary’s L.J 1069) advises that the safest approach is to avoid relying on surrounding context and instead pinpoint the objectionable material itself, while clearly identifying the grounds for the objection to prevent waiver Objections that are too general are not true objections and thus waive the party’s right to object, a principle reinforced by Ramirez v Johnson.
In 1980, as cited in writ reference n.r.e., we noted our exception to the court's ruling allowing that evidence to be presented to the jury That exception constituted a general objection and was therefore not sufficiently preserved for appeal.
When a party objects to testimony that has already been presented to the jury and the objection is sustained, the lawyer must file a motion to strike to preserve the error for appellate review; this procedural action ensures the trial record reflects the objection and protects against waiving the issue — Polly Jessica Estes
According to 30 St Mary’s L.J at 1079, preservation rules for filing a motion to strike are the same as the rules for objecting: the party must clearly identify the objectionable material and specify the grounds for the objection.
Motion for Directed Verdict
JURY CHARGE
Preserving error in a jury charge can be as perplexing as the voir dire process of error preservation, and the rules that apply vary by the type of error and the specific circumstances, so each situation requires careful application of the appropriate standards to ensure proper appellate review.
These errors can be divided into two distinct categories Errors in the jury charge consist of either:
Each requires a different process to preserve error for appeal Generally speaking, an error of omission requires a request to preserve error, while an error of commission requires only an objection.
The Objection
Under Texas Civil Procedure Rule 274, an objection preserves error in the omission of submitting an opposing party’s claim or defense Texas Rule of Civil Procedure 278 explains that if the question not submitted is one relied upon by the opposing party, the complaining party can preserve error sufficiently by objection.
Objections to jury instructions cannot be incorporated by reference from prior objections to other parts of the charge Generally, each party must file its own objections to the charge, but with the trial court’s permission, a party may adopt another party’s objections.
The Request
An omitted question is waived unless the opposing party relies on it; thus, if the omitted question is not relied upon, a party must request the question or error, or the omission is waived When the charge contains one or more elements of a claim or defense, the opposing party may either request the omitted element or object to preserve the error as to that element.
Additionally, a party must submit a request for an omitted instruction or definition, or else error is waived See
TEX R CIV P 278 A request must be tendered by the party complaining of the judgement even if the instruction is in the opponent‘s claim or defense
An interrogatory can be deemed affirmatively defective if it omits any of the required elements, constituting an error of commission that requires an objection; however, some courts hold that when a definition or instruction is omitted, the complaining party must both request the missing item and object to its absence, as illustrated by Jim Howe Homes, Inc v Rogers, 818 S.W.2d 901, 903.
(Tex App.—Austin 1991, no writ)
Requiring a party to not only object to the trial court's failure to add a limiting instruction in its damages question, but also to request such an instruction, underscores the need to preserve error on appeal; Wright Way Constr Co v.
In Tex App.—Corpus Christi 1990, no writ, the court explained that when a jury charge omits an instruction relied on by the requesting party, the party must tender a written request, state specific objections, and obtain a ruling on those objections; see also Sears, Roebuck & Co v Abell, 157 S.W.3d 886, 891 (Tex.).
App.—El Paso, pet denied)
The basis of this dual requirement stems from the language of Texas Rule of
Civil Procedure 274, which states: ―Any complaint on account of any omission is waived unless specifically included in the objections.‖ However, Rule 278 and Texas
Supreme Court precedent negate the dual requirement of a request and objection in this situation TEX R CIV P 278
(expressing that the absence of a question, definition, or instruction
Such submission will not be deemed a ground for reversing the judgment unless it is submitted in substantially correct wording and is requested in writing and tendered by the party alleging the judgment, as held in Spencer v Eagle Star.
1994) (construing Rule 274 to allow an objection to sufficiently preserve error for defective instructions and ruling that a request is unnecessary).
The Confusion
Where a cause of action or an affirmative defense contains four elements that must be submitted together in a single jury submission, all four elements must be presented If one element is missing, the issue is whether the error is an omission—which usually requires a request to preserve the error—or a commission—usually requiring an objection to preserve the error The choice between omission and commission determines how the error must be preserved for appellate review.
When the court’s issue, definition, or instruction is correct in form and substance, arguments that it omits additional instructions are really complaints of omission and should be raised by a request Conversely, if the issue, definition, or instruction is clearly erroneous—either by including something improper or by omitting something essential—the mistake is one of commission and can be preserved by objection.
Preserving Errors in the Charge, A-4
(1993) (on file with the St Mary‘s Law
State Department of Highways v Payne
To simplify the often confusing area of charge practice, the Texas Supreme Court has loosened the formal preservation of error rules under the Texas Rules of Civil Procedure The new rule provides that error is preserved when a party timely and plainly informs the trial court of the complaint and obtains a ruling on it.
Dep’t of Highways & Pub Transp v
This rule has actually caused more confusion and difficulty than the traditional preservation of error rules
Payne involved a trial court that attempted to instruct the jury in a negligence case with a broad-form question and accompanying instructions under Texas Rule of Civil Procedure 277, but one instruction was incorrect because it omitted a required element Under Rule 277 and prior precedent, the defendant should have either objected to the instruction as an affirmatively incorrect statement of the law or proposed a substantially correct instruction addressing the missing element; instead, the defendant objected to an unrelated ground and sought a jury question rather than an instruction on the missing element, and that request itself was affirmatively incorrect because it misplaced the burden of proof.
Despite the defendant’s failure to meet preservation-of-error requirements, the Texas Supreme Court held that the error was preserved because the defendant’s request was clearer than an objection and drew attention to the omitted element in the charge (Payne, 838 S.W.2d 240) The core question is not whether the trial court should have asked the exact question the State requested, but whether the State’s request sufficiently alerted the court to its complaint to preserve the error (Payne, 838 S.W.2d 239-41) There should be a single test for preservation: the party must make the trial court aware of the complaint timely and plainly and obtain a ruling.
Following Payne, courts should apply the charge rules in a commonsense fashion to serve their underlying purposes, rather than adhering to a technical interpretation that defeats them, as illustrated in Alaniz v Jones & Neuse, Inc.
Payne's test requiring the trial court to be informed of the complaint has, in practice, produced an ad hoc, case-by-case approach to preserving charge-error issues Courts now decide these preservation questions piecemeal, sometimes inventing rules as they go; some jurisdictions cite Payne while others do not, and the level of precision required in the request's wording varies—from substantial correctness in some cases to looser standards in others Additionally, the line between an objection and a formal request is sometimes clear and other times blurred.
The post-Payne keys to error preservation now seem to be:
(1) when in doubt about whether to object or request to preserve error, do both; AND
(2) in either case, clarity is essential: make your arguments timely and plainly, and get a ruling on the record
E Preserving Error when using Broad-
The charge is made of three components: questions, instructions, and definitions The formulation of these components has altered between broad- form charges or special submission charges
Under broad-form practice, questions are drafted broadly and typically include most or all elements of a claim, and may encompass multiple causes of action Much of the charge is conveyed through the instructions that accompany the general questions.
The jury is asked to find conclusions without having to agree on specific facts
Texas Rules of Civil Procedure 277 requires that in all jury trials the court submit the case on broad-form questions whenever feasible, and the term 'whenever feasible' is defined to mean any instance in which this approach can be accomplished; see Tex Dep’t of Human Servs v E.B., 802 S.W.2d 647, 649 (Tex.).
Problems arise with broad-form jury charges when a basis for the finding is not legally permissible, lacks evidentiary support, or is poorly defined, and Romero v KPH Consolidation, Inc., 166 S.W.3d 212, 227 (Tex 2005) explains the effect of including factually unsupported claims in such charges.
Preserving Error Using Broad-Form Charges
POST-VERDICT MOTIONS
After a verdict is rendered, parties may file post-verdict motions in the trial court to persuade the court to enter judgments on a litigant’s behalf, sometimes adverse to the verdict These post-verdict motions can seem fruitless at first glance, but they enable the litigation to proceed and preserve errors for appeal, ensuring that issues raised at trial can be reviewed in the appellate process.
Motion for Judgment
A motion for judgment asks the trial court to enter judgment based on the verdict rendered by the jury or judge, formalizing the trial’s outcome Losing parties commonly file this motion to expedite the judgment process and move on to the appeals process Attorneys using this tactic should be aware of potential pitfalls, such as the strict standards for granting the motion, how the entry of judgment may affect rights on appeal, and the limits of post‑judgment relief When used strategically, a motion for judgment can shorten the path to resolution while preserving avenues for appeal, but it requires careful timing and a precise view of the trial record.
Generally, a party filing a motion for judgment is barred from taking a position that is not consistent with the judgment See Litton Indus Products,
In the 1984 ruling, the filing party must take specific steps in its motion to preserve error as to the judgment; failing to do so risks waiving its ability to challenge the sufficiency of the evidence at trial.
In Fojtik, the party filed a motion for judgment stating its disagreement with the verdict, alleging that the judgment contained fatal defects, and insisting that its actions should not be construed as concurring with the outcome.
In its decision, the court ruled that filing this action did not waive a party’s right to challenge the sufficiency of the evidence at trial, because the party’s explicit objections were contained in the motion for judgment, thereby preserving the opportunity to contest the evidence at trial.
Failure to object to the verdict has resulted in several different outcomes in the courts of appeals Eileen K
Wilson, Post-Verdict Preservation of
Some courts hold that, on appeal, only challenges to the legal and factual sufficiency of the judgment are waived, as illustrated by Chuck Wagon Feeding Co v Davis, 768 S.W.2d 360, 366 (Tex App.–El Paso 1989, writ denied) Other courts have gone further, holding that a party’s right to oppose the judgment can be waived in its entirety, as in Mailhot v Mailhot, 124 S.W.3d
775, 777 (Tex App.–Houston [1st Dist.]
To prevent waiving objections, lawyers must clearly articulate their complaints and objections in the motion for judgment, ensuring proper post‑verdict preservation of error; this principle, discussed by Eileen K Wilson in Post-Verdict Preservation of Error, 29 The Advoc (Texas) 58 (2004), highlights the importance of explicit, timely objections in the record.
Motion for Judgment Notwithstanding the Verdict
Motions for judgment notwithstanding the verdict (JNOV) provide a mechanism for a party to persuade a judge that a jury's finding is unfounded as a matter of law In essence, a JNOV functions as post-verdict summary judgment, with trial courts granting it when there is no evidence to support a particular element of the claim or when the evidence is conclusive as a matter of law Eileen K Wilson, Post-Verdict Preservation of Error, 29 The Advocate (Texas) 58 (2004).
For a party that receives an adverse verdict, this particular motion is an effective vehicle to preserve legal sufficiency of the evidence arguments for appeal Most trial courts allow this motion to be filed even after the judgment has been entered Walker v S &
(Tex Civ App.–Corpus Christi 1966, writ ref‘d).
Motion to Disregard Jury Findings
CONCLUSION
For such a vital aspect of trial practice, going through the proper procedures to preserve error is often overlooked Remember that sometimes simply objecting does not go far enough to preserve error, and that the processes involved in voir dire and the jury charge are particularly complicated
In this area of the law, a simple oversight can carry significant consequences The best practice for attorneys is to over-preserve—be as specific as possible—and to obtain a ruling in writing whenever feasible Adopting an overly cautious approach pays dividends for both you and your client.
APPENDIX A Rule 33 Preservation of Appellate Complaints
(a) In General As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
The grounds for the ruling were stated by the complaining party to the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal
In civil cases, a ruling by operation of law overruling a motion for a new trial or a motion to modify the judgment preserves for appellate review any complaint properly raised in the motion, unless presenting evidence was necessary to properly present that complaint in the trial court.
(c) Formal Exception and Separate Order Not Required Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal
In nonjury cases, a complaint regarding the legal or factual insufficiency of the evidence—including a challenge to the court’s damages as excessive or inadequate—may be raised for the first time on appeal in the complaining party's brief, and this type of objection is distinct from a challenge to the trial court's refusal to amend or add findings of fact.
APPENDIX B Preservation of Error Checklist (This might be a good appendix item)
(A) When preparing to exercise peremptory strikes, plan to strike juror(s) that the court refused to strike
(B) Before giving your peremptory strike list to the court or the clerk, inform the court that:
(1) its refusal to strike Juror # for cause requires you to use a peremptory strike on that juror, exhausting your peremptory challenges; AND
(2) after you exercise all of your peremptory challenges, one or more objectionable jurors, juror(s) # , , and/or , will remain on the jury.