January 16, 2021
This was a little bit of a sleepy week, from an error preservation standpoint. I hope everyone remains safe and healthy, and enjoys what promises to be a beautiful (if maybe a little chilly) weekend.
Table of Contents
Some issue can first be raised on appeal–that a traditional summary judgment movant did not establish its right to a summary judgment
You have to comply with the pertinent rules
Findings and Conclusions
The record has to show that you made your complaint in the trial court
Some issue can first be raised on appeal–e.g., that a traditional summary judgment movant did not establish its right to a summary judgment:
Summary Judgment: “[W]e treat appellants’ section 95.002 complaint as fairly including a legal sufficiency challenge as to both prongs [i.e., ownership of the property, and negligence resulting in personal injury or death to a contractor, arising from a condition of use of an improvement to the property where the contractor does work on the improvement].n. 5 n.5 To the extent appellants’ trial court arguments did not specifically address subsection 95.002(2), ‘a [traditional] summary-judgment nonmovant may raise, for the first time on appeal, the legal sufficiency of evidence supporting grounds for relief presented by the movant.’” Paniagua v. Weekley Homes, LLC, No. 05-19-00439-CV, 2021 Tex. App. LEXIS 265, at *21 (Tex. App.—Dallas Jan. 13, 2021)
You have to comply with the pertinent rules:
Findings and Conclusions: “If findings of fact are not properly requested—including when a past-due notice is not filed within the thirty-day deadline imposed by rule 297—then an appellant waives a complaint that the trial court failed to file findings of fact and conclusions of law. . . . Accordingly, the Bank waived its third issue that the trial court failed to file [*6] findings of fact and conclusions of law, and we overrule it.” Bank of Am., N.A. v. Groff, No. 14-19-00726-CV, 2021 Tex. App. LEXIS 186, at *5-6 (Tex. App.—Houston [14th Dist.] Jan. 12, 2021)
The record has to show that you made your complaint in the trial court:
Dismissal Deadline: “In her second issue, Mom argues that the trial court did not explicitly state in its written order that it found extraordinary circumstances to extend the original mandatory dismissal deadline of September 2, 2019. She correctly states that Family Code section 263.401 requires a finding of extraordinary circumstances to extend the mandatory dismissal deadline. See Tex. Fam. Code Ann. § 263.401; . . . . But as the State argues, there is no record of discussion with the court about the extension nor record of any objection to the extension. . . . Without record of any objection to this continuance and extension, Mom waived her argument on appeal. See Tex. R. App. P. 33.1(a) (defining waiver);” In the Interest of X.J.R., No. 04-20-00368-CV, 2021 Tex. App. LEXIS 247, at *5 (Tex. App.—San Antonio Jan. 13, 2021)
That’s all for now. Y’all have a great weekend, and stay safe and well.
Steve Hayes (firstname.lastname@example.org; 817/371-8759; www.stevehayeslaw.com)