December 4, 2021
Table of Contents
An objection that summary judgment evidence is conclusory–even a statement included in a “certification of call,” which is a creature of criminal bond forfeitures–can first be raised on appeal
Here is a case which discusses why an unpled cause of action was tried by consent
The complaint you raise on appeal must be the complaint you raised in the trial court
You have to comply with the pertinent rules
Findings and Conclusions
While I won’t profile them here, opinions for this week reaffirmed that you must make complaint about the following in the trial court
Trial (Order of Argument)
An objection that summary judgment evidence is conclusory–even a statement included in a “certification of call,” which is a creature of criminal bond forfeitures–can first be raised on appeal:
Evidence: “In his response to the State’s motion, Green objected to the certification of call as conclusory. Specifically, Green objected to the statement that Sosa’s name was called “distinctly in compliance with Texas Code of Criminal Procedure Article 22.02.” There is no indication in the record that the court ruled on this objection.
Typically, to preserve an objection to summary judgment evidence for appellate review, the objecting party must have obtained a ruling from the trial court. Tex. R. App. P. 33.1(a)(2)(A); ….However, objecting to a statement in summary judgment evidence as conclusory asserts a defect of substance rather than form and can be raised for the first time on appeal….A statement that is nothing more than a legal conclusion is incompetent summary judgment evidence because it does not provide the underlying facts to support its conclusion….
While the State’s certification of call provides some factual basis to support how Sosa’s name was called (“three times loudly and distinctly”), it fails to provide any factual basis for where Sosa’s name was called. Simply stating that the call was made in compliance with Article 22.02 is nothing more than legally conclusive on this fact…. Accordingly, this statement is incompetent [*7] evidence to support summary judgment on the fact issue of whether Sosa’s name was called at the courthouse door.” Green v. State, No. 02-21-00013-CV, 2021 Tex. App. LEXIS 9652, at *5-7 (Tex. App.—Fort Worth Dec. 2, 2021)
Here is a case which discusses why an unpled cause of action was tried by consent:
Life Estate: “The record as a whole shows that the parties understood that the issue of whether the agreement created a life estate in Steven was being tried. From the outset, Warren and Terri’s trial counsel characterized Steven as a “squatter” and established through Terri’s testimony that Warren and Terri never intended to grant Steven a life estate in the property. On the other hand, Steven’s trial counsel insisted that the agreement provided Steven something in the nature of a life estate and asked the court to recognize as much. Importantly, Steven’s trial counsel never objected to the introduction of evidence which contradicted the creation of a life estate in Steven. …
Furthermore, the evidence presented at trial disputing Steven’s life estate interest was not relevant to the pleaded issue of nonperformance of a condition precedent. Indeed, Warren and Terri’s petition included a prayer for the trial court to declare them “sole owners of the property,” but we agree with Steven’s argument on appeal that this request for relief is contingent upon Warren and Terri’s first request (i.e., [*7] that the trial court declare that Steven’s interest has lapsed by virtue of his failure to perform upkeep on the property and to pay taxes and insurance). To hold otherwise would be to render the prayer for general relief inconsistent with the substance of the allegations made in Warren and Terri’s petition. …
Therefore, although not pleaded by either party, we conclude that the issue of the life estate was tried by consent without objection. Trial by consent cures the lack of pleadings. See Tex. R. Civ. P. 67; see also Libhart, 949 S.W.2d at 801. Accordingly, we overrule Steven’s first issue.” Dahl v. Dahl, No. 10-19-00260-CV, 2021 Tex. App. LEXIS 9625, at *5-7 (Tex. App.—Waco Dec. 1, 2021)
The complaint you raise on appeal must be the complaint you raised in the trial court:
Legal Sufficiency: “When the parties try their dispute to a jury, they cannot contend on appeal that the evidence is legally insufficient to support a judgment rendered on the verdict unless they preserve this issue in the trial court. See Tex. R. App. P. 33.1(d). The parties may preserve a legal insufficiency issue in the trial court by making:
• a motion for an instructed verdict;
• an objection [*14] to the submission of a jury question;
• a motion for judgment notwithstanding the verdict;
• a motion to disregard the jury’s answer to a vital fact question; or
• a motion for a new trial.
Hunter did not move for an instructed verdict, object to the submission of a relevant jury question, move for judgment notwithstanding the verdict, or move to disregard the jury’s answer to a vital fact question. Hunter did move for a new trial. In Hunter’s new-trial motion, she argued the evidence “at trial conclusively establishes that the jury’s findings as to the measure of damages is so against the great weight and preponderance of the evidence as to be manifestly unjust.”
Hunter’s claim that the jury’s finding of zero damages is against the great weight and preponderance of the evidence challenges the factual sufficiency of the evidence, not its legal sufficiency….Though Hunter’s use of the phrase “conclusively establishes” ordinarily might suggest a legal sufficiency challenge, it does not do so in this instance. In her motion for new trial, Hunter argued she had “conclusively established that she suffered objective injuries,” which entitled her to an award of damages in some unspecified amount. She did not argue that she had conclusively proved damages in a particular amount. Further, she sought a new trial, not rendition of a judgment for damages in a particular amount. Viewed in the context of her claim that the jury’s finding of zero damages is against the great weight and preponderance of the evidence, Hunter’s request for a new trial, rather than the entry of judgment notwithstanding the jury’s verdict, reinforces that her motion challenged the factual sufficiency of the evidence, not its legal sufficiency…
Because Hunter did not challenge the legal sufficiency of the evidence in her motion for new trial, she did not preserve this issue for our review.” Hunter v. Tex. Farm Bureau Mut. Ins. Co., No. 01-20-00443-CV, 2021 Tex. App. LEXIS 9610, at *13-15 (Tex. App.—Houston [1st Dist.] Dec. 2, 2021)
You have to comply with the pertinent rules:
Findings and Conclusions: “Here, while several findings addressed the best interest of the Children, the trial court did not make a finding or conclusion related to material and substantial change, and Mother did not request additional findings. See Tex. R. Civ. P. 298 (“After the court files original findings of fact and conclusions of law, any party may file with the clerk of the court a request for specified additional or amended findings or conclusions.”). The failure to request amended or additional findings or conclusions waives the right to complain on appeal about the trial court’s failure to make the omitted findings or conclusions….
Because Mother failed to request a finding on material and substantial change, she cannot now complain about this part of the trial court’s ruling.” In the Interest of K.F., No. 02-21-00056-CV, 2021 Tex. App. LEXIS 9655, at *13 (Tex. App.—Fort Worth Dec. 2, 2021)
All for now. Y’all stay safe and well, and enjoy the weekend.
Yours, Steve Hayes
firstname.lastname@example.org; 817/371-8759; www.stevehayeslaw.com