In Li v. Pemberton Park Community Association, an opinion finding that a pro se litigant did not waive an argument about uneven enforcement of housing rules, the Court reminded: “[P]arties on appeal need not always ‘rely on precisely the same case law or statutory subpart’ on which they relied below. And while appellate courts ‘do not consider issues that were not raised . . . below,’ parties may ‘construct new arguments in support of issues’ that were raised.” No. 20-0571 (Oct. 1, 2021) (per curiam).
Category Archives: Preservation
It’s capacity, really.
In a per curiam opinion issued without argument, the Texas Supreme Court reminded that it really meant its holding in Pike v. Texas EMC Management LLC, about the distinction between standing and capacity, as applied to the question whether a particular injury is suffered by the named plaintiff or the relevant business entity. Cooke v. Karlseng, No. 19-0829 (Jan. 22, 2021).
Expert Error Preservation
The Texas Supreme Court recently summarized the sometimes-confusing law about preservation of objections an an expert’s testimony: “Requiring an admissibility objection to the reliability of expert testimony gives the proponent a fair opportunity to cure any deficiencies and prevents trial and appeal by ambush. Thus, when an expert opinion ‘is admitted in evidence without objection, it may be considered probative evidence even if the basis of the opinion is unreliable.’ But conclusory or speculative opinion testimony is not relevant evidence because it does not make the existence of a material fact more or less probable. Evidence that lacks probative value will not support a jury finding even if admitted without objection. ‘Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.’” Pike v. Texas EMC Management LLC, No. 17-0557 (June 19, 2020). While this quote eliminates the case citations in the original, the cited authorities provide further discussion of these principle and illustrate their applications in specific settings.
No verified plea needed when . . .
A timely charge objection overcame the lack of a verified plea about standing when: “Walker had no reason under Fisher to file a verified plea challenging EMC Cement BV’s capacity to recover for damages to Texas EMC Products. Walker’s complaint about what damages EMC Cement BV was attempting to recover did not arise until EMC Cement BV requested that the jury be instructed to base its damages for Walker and Wilson’s breach of the partnership agreement on the difference in the value of EMC Cement BV’s interest in the partnership before and after the breach.” Pike v. Texas EMC Management LLC, No. 17-0557 (June 19, 2020).
Preservation Pointer
In an insurance-law opinion about the effect of paying an appraisal award, the supreme court offered an instructive example of preservation: “Although Alvarez did not expressly allege a [Texas Prompt Payment of Claims Act] claim in his original petition, he alleged that he was entitled to 18% statutory interest (which reflects the statutory interest rate for violations of the TPPCA) and argued in his no-evidence motion for partial summary judgment that he was entitled to TPPCA damages. State Farm appeared to acknowledge this claim, too, arguing in its own summary-judgment motion that it was not subject to TPPCA damages. So to the extent State Farm suggests Alvarez failed to preserve his TPPCA claim, State Farm is mistaken.” Alvarez v. State Farm Lloyds, No. 18-0127 (April 17, 2020) (per curiam).
