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  • Writer's pictureBeth M. Johnson

Avoiding Waiver Issues for Appeals

When reading appellate opinions, it is helpful to understand exactly what the appellate courts mean when saying issues were “waived.” Often when trial attorneys see the word “waiver,” it means that the opinion overall may be of little use in the research of the day because the opinion typically will not address the actual issues raised by the appellant; however, the fact that an otherwise good appellate issue was waived could also help devise a checklist of tasks not to overlook throughout future cases.


Generally, when seeking relief from an appellate court, three of the first hurdles the appellant must overcome are Texas Rules of Appellate Procedure 33.1(a) (preservation), 44.1(a) (harm analysis), and 38.1(i) (adequate briefing). The first of those requires raising timely objections in the trial court, the second addresses the need to show that any alleged error caused harm, and the third concerns the actual appellate brief, but all three are often referred to as “waiver” by the appellate court.


For the first, the appellate court will overrule if the appellant failed to preserve the issue for appellate review. This issue generally stems from actions (or more often, a failure to act) during trial, but also could refer to pre- or post-trial proceedings (such as a motion for new trial). When overruling for the third issue (38.1(i)), the appellant waived the appellate complaint for failing to adequately brief the issue—e.g., failing to cite the specific legal authority supporting why the issue constituted a reversible error. Briefing issues often arise when the appellant is pro se or if the attorney is grasping at straws for a reversal rather than relying on settled legal authority. For the middle—the need to establish harm—it could be that the appellate brief failed to set forth harm (which would also be a 38.1(i) waiver) or that there actually was no harm to set forth, which could be a preservation issue but also could simply be that the client presented bad facts.

Texas Rule of Appellate Procedure 33.1—Preservation; How Shown

Preserving an issue for appeal generally requires raising a timely objection and getting a ruling. For example, if you were surprised by late-disclosed evidence, if you don’t ask the trial court for a continuance, you generally can’t complain on appeal that you needed more time to adequately prepare for trial due to the late-received disclosures. If you allow evidence to be entered without objection, you cannot complain, for the first time on appeal, that the evidence was not timely produced or was otherwise inadmissible. See Garza v. Garza, No. 14-22-00810-CV, 2024 WL 1102973, at 2 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (mem. op.). Additionally, simply filing a motion does not entitle you to a ruling on the motion; you must set a hearing, attempt to set a hearing, or otherwise bring the motion to the court’s attention. Lawrence v. Jones, No. 14-23-00270-CV, 2024 WL 1269874, at 4 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (mem. op.).


In addition to tracking your own deadlines, know the opposing party’s deadlines. If evidence should be excluded, bring that to the judge’s attention. Even if the judge overrules your objection, making the objection will ensure that issue is preserved for appeal. Additionally, if the judge overrules your objection, ask for a continuance.


General rule (to which there may be exceptions, but play it safe): if you don’t ask for something in the trial court, your client can’t complain about it on appeal. For example, if something sneaks into a final decree, and you don’t let the trial court know that you think that provision should not be there, you won’t be able to complain about it to the appellate court. In that situation, a motion for new trial may be critical if your client is considering an appeal.


Texas Rule of Appellate Procedure 44.1—Reversible Error in Civil Cases

To adequately establish harm, you must show that but for the alleged error, the outcome at trial would have been different. For example, if you want to challenge the property division (and if no party was divested of separate property), you must show that error was more than de minimus in comparison to the whole estate and was, in fact, harmful. See e.g., In re I.P., No. 05-22-00577-CV, 2023 WL 5215254, at *6 (Tex. App.—Dallas 2023, no pet.) (mem. op.). If evidence was excluded, you must make an offer of proof so the appellate court can see what the excluded evidence was and determine whether its exclusion was harmful. See e.g., Roberson v. Roberson, No. 14-22-00171-CV, 2023 WL 5286968 (Tex. App.—Houston [14th Dist.] 2023, pet. denied) (mem. op.). If a positive drug test is admitted over your objection, but you allow an expert to testify about the drug test without objection, you won’t be able to complain about the admission of the drug test because the test would have been cumulative of the expert’s testimony—i.e., harmless. See e.g., In re B.E.W., No. 14-18-00733-CV, 2020 WL 4211629 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (mem. op.) (appellant failed to show case turned on complained-of question).



Another reason an appeal may not get addressed on the merits is if the judgment is agreed or if the parties are otherwise prohibited from appealing. For example, if the parties agree to binding arbitration, often, the only basis for challenging the arbitrator’s award is through a showing that the arbitrator exceeded his or her authority. See Brady v. Brady, No. 02-23-00163-CV, 2024 WL 637266 (Tex. App.—Fort Worth 2024, pet. pending) (mem. op.) (citing Hoskins v. Hoskins, 497 S.W.3d 490, 494 (Tex. 2016); Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 101 n.79 (Tex. 2011); CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002); City of Arlington v. Kovacs, 508 S.W.3d 472, 476 (Tex. App.—Fort Worth 2015, pet. denied)). Normal evidentiary complaints that might be valid appellate complaints after a regular trial are often simply not available depending on the arbitration agreement. See Hilton v. Korrect Gen. Contracting, LLC, No. 02-20-00337-CV, 2021 WL 4621761, at *2 (Tex. App.—Fort Worth 2021, pet. denied) (mem. op.) (noting that the statute “‘leaves no room for courts to expand on’ the grounds listed” for vacating or modifying an arbitration award (quoting Hoskins, 497 S.W.3d at 494)).


If a party agrees to an order, that party cannot subsequently complain about it on appeal. This applies to judicial admissions, actual agreed orders, and when the party signs a decree indicating agreement “as to form and substance.” When someone signs an order indicating he or she agrees “as to form,” that means that the signer agrees that the formal written order accurately matches any oral or memorandum rulings from the trial judge. However, if the order is signed showing agreement or consent to “form AND SUBSTANCE,” that indicates that the order is actually an agreed order and would preclude the signing party from challenging the order on appeal. “A party’s consent to the trial court’s entry of judgment waives any error, except for jurisdictional error, and that party has nothing to property present for appellate review.” See e.g., In re Marriage of Compero, No. 13-20-00415-CV, 2022 WL 869807 (Tex. App.—Corpus Christi–Edinburg 2022, no pet.) (mem. op.). Do not let your client sign an order that they might appeal.

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