Tex Civ Proc - Chap 1 & 2

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Preservation of Error and the Harmful Error Rule

Reason for Preservation of Error

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1. The opposing party is given an opportunity to cure any error that may occur,
2. The trial court given an opportunity to cure any error that may occur,
3. Trial by ambush is prevented, and
4. Appeal by ambush is prevented.

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Preservation of Error and the Harmful Error Rule

Standard of Review & Scope of Review

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1. Abuse of Discretion
2. Evidentiary Standard dealing w/jury answers - judges the juries answers (factual insufficiency & legal insufficiency)

Courts can only look to the appellate record.

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Preservation of Error and the Harmful Error Rule

Preserved Error must be Harmful

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Idea that judges at the trial court make mistakes, but their mistakes will not cause reversal unless there exists harmful error.

TRAP 44.1 (appellate court) & 61.1 (supreme court)

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Preservation of Error and the Harmful Error Rule

Definition of Madamus

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Mandamus is an extraordinary remedy only available when (1) there is an abuse of discretion AND (2) no adequate appellate remedy.

It is an original proceeding filed in appellate court which asks the court to "madamus the lower court" and is a proceeding guaranteed by the Constitution.

In Re Masonite - Judge abused his discretion by not following law when opposing council objected w/improper venue claim and P did not prove venue is proper.

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Preservation of Error and the Harmful Error Rule

Method of Preserving Error

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TRAP 33.1 How to preserve a complaint for COA Review:
a. A party must present to the TC a timely request, object or motion;
b. State the specific grounds therefore; AND
c. obtain a ruling
2. To preserve a complaint that sci evid is unreliable and thus, no evid, a party MUST obj to the evid before trial OR when the evid is offered. - IF NOT PRESERVED ITS WAIVED

TX Rule Evid 103 - Error cant be pres unless it effects subst right and: (1) a timely obj is made (general "immaterial & irrel" obj is sufficient to preserve error)
(2) offer of proof (witness evidence made known w/out jury present or informal bill of exception where evidence is deemed inadmissible) -- offer of proof made after jury charge, it is preserved error but is not reversible error UNLESS there is harm

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Preservation of Error and the Harmful Error Rule

Most Frequent Preservation of Error & Judges Discretion in Determining Whether Error is Harmful

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Rulings on the admission or exclusion of evidence.

Generally: To sustain a case under harm test, the crt will call the evidence cumulative and therefore, the error will be harmful. To reverse, the crt will say the evid led to the rendition of an improper verdict. There is no specific test for harm, it is up to the sound discretion of the judges.

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Preservation of Error and the Harmful Error Rule

Definition of Fundamental Error

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Fundamental error is the exception to the general rule that error must be preserved during the lower court proceeding in order for an appellate court to consider any complaints regarding specific error.

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Preservation of Error and the Harmful Error Rule

Definition of Fundamental Error (Per Caselaw)

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McCauley v. Consolidated Underwriters

"An error which is directly and adversely affects the interest of the public generally, as that interest is declared by the statutes or Constitution of our State is fundamental"

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Preservation of Error and the Harmful Error Rule

What is Considered Fundamental Error & the Power of the Courts

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Fundamental Error is (1) SMJ - which impliedly includes justiciability - Waco ISD v. Gibson (2) Personal Jurisdiction - Mapco v. Carter

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Preservation of Error and the Harmful Error Rule

What is Justiciability

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(1) Case or Controversy,
(2) Advisory Opinions,
(3) Mootness & Ripeness,
(4) Standing
(5) Political Question, and
(6) Restraint

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Preservation of Error and the Harmful Error Rule

Power of the Courts in Dealing w/Fundamental Error

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Preservation of Error and the Harmful Error Rule

Power of the Courts in Dealing w/Fundamental Error

In dealing w/fundamental error, the Tx Court of Appeals & the TX Supreme Court has the power to reverse decision based on assigned error if the error is fundamental - Pirtle v. Gregory

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Preservation of Error and the Harmful Error Rule

Lexicon Changes (after 1981)

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1. "Writ of Error" = "Petition for Review"
2. "Refused. No Error" = "Denied"
3. "Refused" = Same precedential value as an opinion of the TXSC

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Courts and SMJ

Jurisdiction & Judicial Function - Where to look for SMJ

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A Crt must look ONLY to the face of the pleading to analyze whether a crt has SMJ. Jurisdiction is derived from the nature of the lawsuit; and the AMOUNT IN CONTROVERSY.

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Courts and SMJ

Jurisdiction & Judicial Function - Void Judgment & Jurisdiction

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If a crt having potential jurisdiction renders a jdgmt when the potential jurisdiction has not been activated, and the defect is apparent on the face of the jdgt, then the jdgt is void and subject to either direct or collateral attack.

CONVERSE IS TRUE: A jdgmt is NEVER VOID where (1) a crt of general jurisdiction that renders a jdgmt, (2) w/personal jurisdiction and (3) smj

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Courts and SMJ

Jurisdiction & Judicial Function - Clayton v. Hurt

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Clayton v. Hurt - Forcible Entry Detainer Lawsuit brought to JoP Crt. Appropriately appealed to Cty Court. Cty crt affirmed. Plf’ files another lawsuit to get an injunction in Cty Crt and then filed a 2nd lawsuit in DC.

Direct attack is to set aside the lower court judgement where as a collateral attack does not set aside a lower court judgment, but to avoid the effects (aka - injunction). You can only win a collateral attack if the jdgmt is VOID.

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Courts and SMJ

Jurisdiction & Judicial Function - Jurisdiction of District Crts

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District crts are crts of general jurisdiction and SMJ is presumed.

This presumption now applies to both common law and statutory causes of action.

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Courts and SMJ

Constitutional & Statutory Provisions Relating to SMJ - District Crts

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Tex. Const. Art. 5 & Tex Gov't Code § 24.007

Org juris in civl actions over $200, divorce, title to land & contested probate matters.
Org juris in felony matters.
Juvenile matters.

Const confers exclusive, appellate and org juris.

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Courts and SMJ

Constitutional & Statutory Provisions Relating to SMJ - Statutory County Crts

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Tex Gov't Code § 25.003

Statutory County Crt has juris over all causes and proceedings, civil and criminal orig and appellate, prescribed by law.

Has concurrent juris w/DC: Civil cases in which matter in controversy exceeds 500 but not 100K.

Also has concurrent juris w/county court, the probate juris provided by general law for county courts.

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Courts and SMJ

Constitutional & Statutory Provisions Relating to SMJ - Constitutional County Crts

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Tex Gov't Code § 26.042

Cty Court has concurrent juris w/justice courts in civil cases in which the matter in controversy exceeds 200 in value but does not exceed 5K.

Exclusive org jurisdiction over misdemeanors w/fines greater than $500

Appeals de novo from lower crts or on the record.

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Courts and SMJ

Constitutional & Statutory Provisions Relating to SMJ - Justice Crts

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Tex Gov't Code § 27.031

Org Juris of civil matters in which exclusive juris is NOT in the DC or County Crt and when the amt in controversy is not more than 500K

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Courts and SMJ

Nature of Suit as Basis for SMJ - Caselaw

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Ex Parte Bryant - Const Cty Crts do not have power to issue an injunction unless an amt of controversy is stated.

Bailey v. Cherokee Cty Appraisal Dist. - A probate crt case has jurisidiction to hear all matters incident to the probate matter already pending. The DC has concurrent probate jurisdiction when the cty judge transfers the matter to the DC. A probate ct has jurisdiction to hear all matters where the personal rep is sued or sues. - Palmer v. Coble Wall Trust Co.

Chandler v. US Ass'n of TX - all forcible entry and detainer actions MUST be filed in JP cts. In order for there to be a proper appeal to cty ct, the JP ct must have had proper juris.

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Courts and SMJ

Amount in Controversy as Basis for Jurisdiction

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It is possible for a TC to enter a judgment for more than its jurisdictional limit. Once a crt's jurisdiction has been properly acquire, no subsequent action, including accrual in value, can defeat that juris.

For juris purposes, the amt in controversy is determined from the face of the pleadings, UNLESS the adverse party pleads and proves teh allegations in the pleadings were falsely made for the fraudulent purpose of wrongfully conferring jurisdiction.

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Courts and SMJ

Problems of Multiple Parties and Claims

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Tex Gov't Code § 24.009

If two or more persons originally and properly joined in one suit, the suit for jurisdictional purposes is treated as if one party is suing for the aggregate amt of all their claims added together, excluding interests and costs.

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Courts and SMJ

Consequences of Lack of Jurisdiction over SM

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(1) When an appellate crt finds that is no SMJ, then the only order the crt may enter is one that reverses the lower crt adn dismisses the case (but an appeal from an interlocutory order cannot be dismissed by appellate crt b/c only that part of the case is before the crt and the app crt does not have the power to dispose of the whole case)
2. Sustaining a challenge to SMJ requires dismissal w/out prejudice b/c the merits of the case arent considered
3. When exclusive jurisdiction is assigned to a commission, then that is the only place where the suit can be filed.

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Courts and SMJ

Jurisdiction Over Counterclaims

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Where a crt by the plf's pleadings obtains a jurisdiction over the case, a def' may assert against the P a counterclaim in an amt that is below the minimum jurisdiction of the crt where the case is filed. However, the counterclaim cannot be above the juris limits.

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Courts and SMJ

Limits on Jurisdictional Power

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A DC having jurisdiction of the parties and SMJ may enjoin a party from prosecuting a COA in another crt when such relief is necessary to prevent a multiplicity of suits, avoid vexatious litigation, or prohibit the use of judical processes for harassment.

HOWEVER, a state court does not have the power to enjoin an individual from pursuing a lawsuit in federal crt so long as the matter is in personam.

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Courts and SMJ

Limits on Jurisdictional Power: Exhaustion of Administrative Remedies

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When there is a problem arising to the interpretation/
application of rule, there may be an admin trial – if appealed to appellate court - deference to administrative agency, final decision cannot be overturned unless arbitrary or capricious.

Therefore, unless the admin agency makes a legal error, the factual errors will RARELY be overturned.

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Courts and SMJ

Limits on Jurisdictional Power: Exhaustion of Administrative Remedies & Primary Jurisdiction

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Courts and admin agency have CONCURRENT jurisdiction. If admin statute does not give agency exclusive juris, then you must determine whether the court or admin agency you need to file (most of the time it is the admin agency).