CHAPTER 1 Preserving Issues for Appeal

JurisdictionUnited States


Preserving Issues for Appeal

1-1 Introduction

The best way to think about preservation in the trial court is not to memorize a long list of technical requirements for every situation that can arise before, during, and after trial. That list will be covered in this chapter, and you can use this or other materials as a reference. But the best way to prepare for preservation decisions in the heat of battle is to understand the philosophical underpinnings of preservation practice, as well as the basic contours for preservation procedure. Those alone will provide the information you need in the great majority of situations.

The rules regarding preservation are not designed to weed out the unwary and unprepared so that only the smartest and most prepared lawyers qualify for the privilege of arguing a point on appeal. Rather, they reflect an understanding that appeals are expensive and time-consuming for litigants and for the court system, and second trials after remand are even more so. The time and expense of a retrial can be saved by rules that require lawyers to call problems to the attention of the trial court that can be taken care of in a first trial, in a manner and at a time when the court can correct the problem before it is too late for there to be a meaningful remedy.

1-2 Requirements of Preservation

In order to accomplish that goal, lawyers are required to do four things to preserve a point for appellate review:

(1) Make a complaint to the trial court by request, objection, or motion, on the record;
(2) Make the complaint in a timely fashion, so that the trial court can correct any error before it is too late;
(3) State the grounds for the complaint with sufficient specificity to make the trial court aware of the exact complaint; and
(4) Obtain a ruling from the trial court, on the record, so that it is clear that the trial court was made aware of the complaint and responded. 1

Each of these requirements merits further discussion.

1-2:1 Complaint Made to Trial Court by Request, Objection, or Motion

A lawyer must do something to bring to the trial court's attention that an error has, or is about to, occur. The vehicle for raising that complaint depends on the circumstances, and courts are becoming increasingly lenient about which vehicle is used, as long as counsel does something to put the trial court on notice of a complaint.

Generally, a request is appropriate when a party wants to do or ask for something, such as requesting a change of venue, requesting a jury, requesting a jury shuffle, or requesting that their version of a jury question be submitted. An objection is a complaint about something that is going on before or during a trial, such as an objection to a summary-judgment affidavit, an objection to a biased venire member being seated on the jury, an objection to an improper question asked of a witness, an objection to a piece of evidence being offered, or an objection to a proposed judgment. A motion asks for legal relief, such as a motion for sanctions, a motion for summary judgment, a motion to strike a witness, a motion for directed verdict, or a motion for entry of judgment.

Additionally, the request, objection, or motion must appear in the record. If it can be filed in writing, and requested to be included in the Clerk's Record on appeal, that is usually sufficient. If it is an oral request, objection, or motion, the lawyer should make sure that a court reporter is present, that the proceedings are being recorded, and that the transcription of that part of the proceedings is included in the Reporter's Record on appeal. As far as the appellate court is concerned, if it does not appear in the Clerk's Record or the Reporter's Record, it did not happen, and the argument or error is not preserved.

1-2:2 Timely Complaint

Although the "timeliness" requirement is somewhat obscured in Texas Rule of Appellate Procedure 33.1(a), appearing simply as the one-word adjective "timely" preceding the series "request, objection, or motion," it is important enough to merit recognition as a separate element of preservation. In most situations, a complaint must be made before the objectionable event occurs, or at least immediately after it has happened, but certainly before the trial train has moved inexorably past the station. If not, even an otherwise proper objection will be considered waived.

This principle is best illustrated through examples, each of which is addressed in greater detail and supported by citations to case law later in this chapter:

• In voir dire an objection to the failure to strike a venire member for cause must occur before the jury is seated and the remainder of the venire is dismissed. At that point it becomes impossible for the court to correct the mistake by striking the juror and seating another member of the venire.
• A Daubert 2 objection to an expert witness must be made before the witness testifies, or, at the latest, immediately after the witness provides testimony that is objectionable. Waiting to object until after the witness has testified means that the jury already has heard the witness's full testimony and cannot realistically be expected to disregard that testimony.
• Proffering excluded testimony for the record must take place before the evidence has closed and the jury has retired to deliberate; otherwise if the judge, upon hearing the proffer, decides that it should have been admitted rather than excluded, it is too late to right that wrong.
• Charge objections must be made before the charge is read to the jury, for similar reasons.

1-2:3 Complaint Must State Grounds With Sufficient Specificity

The complaint must be stated in such a way that the trial court is made aware of the precise complaint that will be made on appeal and has the chance to correct it. Error preservation is not an activity where "lying behind the log" is an effective trial strategy.

For example, vague evidentiary objections like "objection," or "hearsay," or "prejudicial" are not likely to preserve anything without a more specific description of why the evidence or question is objectionable. Similarly, a broad statement like "That violates the motion in limine" is not likely to preserve anything without more of an explanation.

The requirement of specificity does not mean that lawyers need to cite specific sub-section numbers of statutes or evidentiary rules or pleadings. The specificity required is simply an explanation of the substantive nature of the complaint.

1-2:4 Obtain Trial Court Ruling on the Record

The requirement of a ruling is to make sure that the court was made aware of the complaint and responded to it in some way. Saying something under your breath that was not heard by the judge does not preserve anything, and the only way for the record to reflect that the court was aware of the complaint and consciously addressed it is to require a ruling.

This requirement is a little looser than the previous requirements. First, Rule 33.1 provides that the court must have ruled on the complaint "either expressly or implicitly."3 Any lawyer should strongly prefer an express ruling rather than an implicit ruling, but courts have recognized circumstances in which subsequent events allow no other possibility but that the court intended to overrule the complaint.4

Second, if a trial court simply refuses to rule, a lawyer can preserve error by objecting to the refusal to rule on the record.5

As previously mentioned, an understanding of these four requirements will provide lawyers attempting to preserve error with what they need to know in most circumstances.

1-3 Pre-Trial Preservation of Error

1-3:1 Personal Jurisdiction

Unlike subject-matter jurisdiction—which can be raised at any point in the trial court or the appellate court, even if not previously preserved—objections to personal jurisdiction must be preserved by compliance with a rigid set of rules. An objection to personal jurisdiction must be raised in a sworn Special Appearance, which must be filed prior to any other pleading—except that other pleadings can be filed contemporaneously with the special appearance if they are contained in the same document.6 A party can file other pleadings after the special appearance without waiving it, but only if they expressly state that they are filed "subject to" the special appearance.7 (Other pleadings filed in the same instrument as the special appearance need not contain the "subject to" language.)8 But the party filing a special appearance must obtain a ruling on the special appearance before requesting any other ruling or relief from the trial court.9 Filing other pleadings before the Special Appearance, filing other pleadings when a Special Appearance is pending without saying "subject to," or obtaining a ruling from the trial court on something else before the Special Appearance has been ruled upon all constitute a general appearance, which waives all complaints about personal jurisdiction.10

A Rule 11 Agreement between the parties is not a plea, pleading or motion, or a request for affirmative relief from the trial court that waives a special appearance.11 Similarly, seeking a trial court's resolution of discovery matters related to the special appearance does not waive the special appearance.12

1-3:2 Venue

Like personal jurisdiction, an objection to venue must be raised before, or concurrently with, an answer or any other pleading—except a special appearance, which must precede a motion to transfer venue.13 Again, subsequent pleadings filed while the motion to transfer venue is pending should be made "subject to" the motion to transfer venue. A failure to challenge venue in a timely fashion waives an objection to venue, even if the objection to venue is based on a mandatory venue statute.14

1-3:3 Pleadings

Objections to pleadings, whether of form or substance, must be made through written special exceptions brought to the attention of the court before the charge is read...

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