PRETRIAL AND TRIAL PRESERVATION OF ERROR INTERESTING FAMILY LAW ISSUES. BRAD M. LAMORGESE

Transcription

1 PRETRIAL AND TRIAL PRESERVATION OF ERROR INTERESTING FAMILY LAW ISSUES BRAD M. LAMORGESE EILEEN COSTELLO Mccurley, Orsinger, Mccurley, Nelson & Downing 5950 Sherry Lane, Suite 800 Dallas, Texas State Bar of Texas 39 TH ANNUAL ADVANCED FAMILY LAW COURSE August 5-8, 2013 San Antonio CHAPTER 8

2 Table of Contents Pages I. Introduction A. Preservation is Important B. Only Certain Errors Prevent Reversible Error C. Why Require Preservation? D. Fundamental Error (A Discredited Doctrine) II. Rule The Gold Standard A. Make the Complaint in the Trial Court B. Rule C. No Right to Complain of Unpreserved Error D. Right to Appeal is Not Constitutional III. Subject Matter Jurisdiction Complaints - An Exception to the Rule IV. No Clear Timely Complaint to the Trial Court A. Specific, Timely Complaint B. Trial Objection is the Mirror Image of the Appellate Objection Presented C. Premature Objection D. Nonspecific Objections E. Form of the Trial Court Objection F. Statutory Complaints V. Obtain a Ruling A. Obtain a Ruling or Refusal to Rule B. Specific Ruling C. Implied Rulings D. Refusal to Rule VI. Failure to Make a Record A. A Record is Necessary to Show Error B. Courts of Appeal Do Not Consider Facts Outside of the Record C. SAPCR Record is Mandatory VII. Special Appearance - Challenges to Personal Jurisdiction A. Personal Jurisdiction - A Matter of Contacts B. Special Exception Procedure C. Dawson-Austin - Liberal Construction of Special Appearance Procedure Defective Special Appearance Cured by Amendment No Subject To Language Requirement Severable Divorce Issues VIII. Pleading Issues A. Pleadings Requirements B. Special Exceptions

3 1. Filing Special Exceptions Obtain a Hearing No Special Exceptions = Waiver of Pleadings Defects Improper Vehicle For Special Exceptions Family Code Pleading Requirements IX. Evidentiary Complaints A. Admission of Evidence Timely Objection Clear, Specific Objection Premature Objections Preserve Nothing The Objection Must Come From the Party, Not Another Party Protecting a Sustained Objection is Necessary Jury Trial Preservation of Objectionable Admitted Evidence B. Exclusion of Evidence Formal Offer Necessary to Show Harmful Error The Substance of the Excluded Evidence Must Be Made Known Error is Waived if Evidence is Not in the Record X. Improper Comments on the Weight of the Evidence XI. Constitutional Claims A. Constitutional Claims Must Be Asserted in the Trial Court B. Waiver of Constitutional Claims C. Separate Property Claims D. Parental Rights Termination Cases E. Troxel - Nonparent Possession Claims F. Facial vs. As Applied Challenges Facial Challenges As Applied Challenges XII. Daubert Complaints A. Daubert/Robinson Objections B. Objection Not Lodged at Trial May Not be Recast on Appeal C. No Trial Objection = Waiver XIII. Family Code Statutory Issues A. Residency Restrictions B. Unconscionability and Voluntariness Claims C. Residency Challenges (6.301) D. Preemption Issues E. Characterization/Reimbursement Claims F. Juvenile Instructions G. Termination - Ineffective Assistance and Factual Sufficiency Challenges Preservation Rules Apply to Termination Cases Unpreserved Factual Sufficiency Complaints are Reviewable in Certain Circumstances XIV. Family Code Venue Challenges A. Family Code Motions to Transfer Venue B. Dissolution Suit Venue

4 C. SAPCR Venue D. Custody Interference Venue E. Protective Order Suit Venue XV. Appeal of an Associate Judge s Ruling A. Three Relief Avenues From an Associate Judge s Ruling B. De Novo Appeal De Novo Appeal Brought Within Three Days of Notice of Associate Judge s Report a. The Notice of Appeal b. Second Appeal by Other Party c. Three Day Requirement Probably Includes Weekends Appeal in Writing, and Specific Hearing is De Novo, and Should Be Held Within 30 Days a. Evidence Considered b. Hearing Should Be Held in 30 Days c. Right to Hearing is Mandatory d. 30 Day Requirement is Not Jurisdictional e. Failure to Hold Hearing is Error on the Face of the Record No Second Jury C. Traditional Appeal Appeal from a Final Order Failure to Lodge a De Novo Appeal Does Not Result in Waiver of Regular Appeal Failure to Hold a Timely Requested De Novo Hearing is Error and Should be Brought to the Court s Attention Generally, Appellate Deadlines for a Traditional Appeal Begin When the Referring Court Signs a Final Order Appeal From Default or Agreed Orders Signed by an Associate Judge Begins When the Associate Judge Signs the Order XVI. Segregating Recoverable Attorney s Fees From Non-Recoverable Fees A. Segregating Fees B. Waiver XVII. Continuance A. The Motion Sufficient Cause In Writing Continuance as a Matter of Law B. Exceptions C. Discretionary Decision D. Absence of Counsel as Grounds for Continuance XVIII. Right to Jury Trial A. The Request for Jury Trial B. Ways to Waive the Request for Jury Trial XIX. Jury Charge Preservation A. TRCP The General Rule

5 1. Timely Complaint Objections to Erroneous Submissions Tender Omissions in Writing Failure to Present Jury Charge Error Results in Sufficiency Review B. Objections to Broad-Form Submission C. Deemed Findings XX. Jury Verdict Challenges A. Motion for New Trial Necessary B. Legal Sufficiency Challenges