                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00371-CV

MORGAN JACKSON                                                      APPELLANT

                                          V.

ERIC JENNINGS KISIAH                                                  APPELLEE


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          FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                   I. INTRODUCTION

      In six issues, Appellant Morgan Jackson appeals the trial court’s amended

judgment that he take nothing on his claim for bodily injury against Appellee Eric

Jennings Kisiah. We will affirm.




      1
       See Tex. R. App. P. 47.4.
                  II. FACTUAL AND PROCEDURAL BACKGROUND

      Jackson filed suit against Kisiah2 after Kisiah stabbed him as he exited a

sports bar. Jackson pleaded a cause of action against Kisiah for ―infliction of

bodily injury during psychotic episode.‖     Jackson pleaded that Kisiah was

―delusional and psychotic‖ when he attacked Jackson and that

             [b]ecause of KISIAH’s documented mental illness at the time
      of this occurrence, he did not possess the ability to control his
      conduct regardless of any understanding of the nature of his actions
      or its wrongfulness.     Because KISIAH lacked such ability to
      comprehend his actions at the time of this occurrence, his act of
      stabbing Plaintiff was totally, unexpected, unintended, a departure
      from reality, makes no sense, and therefore, was an accident.

After a bench trial, the trial court found that Kisiah intentionally and knowingly

caused bodily injury to Jackson and signed a May 16, 2012 judgment awarding

Jackson damages.

      Kisiah filed a motion to modify the judgment on May 31, 2012. Kisiah’s

motion to modify argued that the trial court’s judgment—specifically the finding

that Kisiah intentionally and knowingly caused bodily injury to Jackson—was not

supported by Jackson’s pleadings. The motion to modify claimed that ―[i]n the

more than two years between the filing of the Second Amended Original Petition

and the trial of this case, Plaintiff never wavered in his assertion that Kisiah’s

action was unintentional.‖ The trial court conducted a hearing on the motion to

modify, and at the hearing, the trial court explained that because Jackson had

      2
       Jackson’s suit named other defendants, but they are not parties to this
appeal.

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pleaded only a negligence cause of action against Kisiah, he could not obtain a

judgment on an unpleaded intentional tort cause of action.3 Consequently, the



      3
       The following dialog between the trial court and Jackson’s counsel
occurred at the hearing:

      THE COURT:        Do you agree with this motion [to modify the
      judgment]?‖

            [Jackson’s counsel]: No, Your Honor.

            THE COURT: You didn’t plead intentional.

            ....

            THE COURT: I think it was intentional.

      A. Exactly.

            THE COURT: But you didn’t plead it as intentional, because
      you said he had some type of mental disorder that prevents him from
      committing an intentional act.

            ....

            THE COURT: And then we go down following your pleading
      and plaintiff’s claims against them, so there is your cause of action.

            [Jackson’s counsel]: Infliction of bodily injury.

             THE COURT: Yes. I mean, you know you did this to try and
      get insurance from the bar, when you said negligence in the first
      place. If you’d said intentional, you know you wouldn’t have gotten
      it, and so I think you’re stuck with your pleadings.

          [Jackson’s counsel]: Well, actually, we were trying to get the
      homeowner’s insurance. The bar didn’t have insurance.

            THE COURT: Right, so you chose to plead it as negligence
      as opposed to intentional tort.

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trial court signed an amended judgment ordering that Jackson take nothing.

Jackson perfected this appeal.

      III. TRIAL COURT’S AMENDED JUDGMENT CONFORMED TO THE PLEADINGS

        Jackson raises six issues in his brief; Kisiah did not file a brief. In issues

one through five, Jackson claims that Kisiah’s motion to modify was untimely filed

and that the trial court abused its discretion by granting the motion to modify. In

his sixth issue, Jackson argues that the trial court acted in an inequitable manner

by signing an amended take-nothing judgment when Kisiah did not dispute

liability.

        A court’s jurisdiction to render judgment is invoked by the pleadings, and a

judgment unsupported by pleadings is void. Maswoswe v. Nelson, 327 S.W.3d

889, 893–94 (Tex. App.––Beaumont 2010, no pet.) (citing In re S.A.A., 279

S.W.3d 853, 856 (Tex. App.––Dallas 2009, no pet.)). Therefore, a trial court’s



               [Jackson’s counsel]: Still has the damages and the -- and if
        you find that it was an accident, I guess, then --

              THE COURT: You said it was an accident.

              ....

               THE COURT: It doesn’t change the damages, but you have
        to get past the first question. Was he negligent?

              [Jackson’s counsel]: Right.

              THE COURT: Did the negligence, if any, of your client cause
        the occurrence in question, and you’re saying no, it didn’t, you’re
        saying it was an intentional act.

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judgment must conform to the pleadings. Tex. R. Civ. P. 301; see, e.g., Mapco,

Inc. v. Carter, 817 S.W.2d 686, 688 (Tex. 1991); Cunningham v. Parkdale Bank,

660 S.W.2d 810, 813 (Tex. 1983). And a party may not obtain a judgment based

upon a theory not pleaded. See Marrs & Smith P’ship v. D.K. Boyd Oil & Gas

Co., 223 S.W.3d 1, 19 (Tex. App.—El Paso 2005, pet. denied); Affiliated Capital

Corp. v. Musemeche, 804 S.W.2d 216, 219 (Tex. App.—Houston [14th Dist.]

1991, writ denied). After the trial court renders judgment, it is too late to ask to

amend the pleadings to add a new theory of recovery. Prater v. State Farm

Lloyds, 217 S.W.3d 739, 741 (Tex. App.—Dallas 2007, no pet.); Mitchell v.

LaFlamme, 60 S.W.3d 123, 132 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

      The exception to this rule occurs when an issue not raised by the

pleadings is tried by consent. See Tex. R. Civ. P. 67; Roark v. Stallworth Oil &

Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); see also Oil Field Haulers Ass’n v.

R.R. Commn., 381 S.W.2d 183, 191 (Tex. 1964) (―That a plaintiff may not sustain

a favorable judgment on an unpleaded cause of action, in the absence of trial by

consent, is the general rule.‖). When an unpleaded issue is tried by consent, the

failure to amend the pleadings shall not affect the result of the trial on the

unpleaded issues. Tex. R. Civ. P. 67; see Marrs & Smith, 223 S.W.3d at 19.

Trial by implied consent is limited in application to exceptional cases where it

clearly appears from the record as a whole that the parties tried by consent an

issue that had not been pleaded. See Marrs & Smith, 223 S.W.3d at 19. It is not

intended to establish a general rule of practice; it should be applied with care and

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never in a doubtful situation. Id. To determine whether the issue was tried by

consent, the court must examine the record not for evidence of the issue but

rather for evidence of trial of the issue. Id.

      Jackson pleaded only a negligence theory of recovery against Kisiah. He

did not plead an intentional tort theory of recovery. The trial court indicated in its

first judgment, as well as at the hearing on Kisiah’s motion to modify the first

judgment, that it believed Kisiah had committed an intentional tort. We have

carefully reviewed the reporter’s record, and it contains nothing indicating that

Jackson and Kisiah tried by consent the unpleaded intentional tort theory of

recovery.4   Accord Maswoswe, 327 S.W.3d at 894 (explaining that trial by

consent requires development of the unpleaded issue under circumstances

indicating both parties understood the issue was in the case and the other party

failed to make the appropriate complaint). Because after the trial court entered

its first judgment it was too late for Jackson to amend his pleadings to add a new

intentional tort theory of recovery, because no pleadings existed supporting a

recovery for Jackson based on an intentional tort, because the record does not


      4
        We have thoroughly reviewed the reporter’s record filed in this appeal.
Nothing in the record indicates that both parties understood Jackson was
proceeding on an intentional tort theory of the case. Jackson, as the plaintiff,
called the following as witnesses: himself; Kisiah’s older brother, Matthew;
Kisiah’s younger brother, James Harrison; Dr. Gary Dick Miller, a clinical
psychologist; Sandra Harrison, Kisiah’s mother; and Clint Ashburn, Jackson’s
best friend. The defense called no witnesses. The evidence presented at trial
established that Kisiah suffered from a mental illness and that his stabbing of
Jackson ―made no sense.‖

                                           6
indicate that Jackson’s unpleaded intentional tort theory of recovery was tried by

consent, and because the trial court determined that Kisiah’s stabbing of Jackson

did not constitute negligence, the trial court properly entered a judgment that

conformed to the pleadings—that is, a judgment that Jackson take nothing on his

pleaded negligence cause of action against Kisiah. See Tex. R. Civ. P. 301; Oil

Field Haulers Ass’n, 381 S.W.2d at 191; Stephanz v. Laird, 846 S.W.2d 895,

901–02 (Tex. App.––Houston [1st Dist.] 1993, writ denied) (analyzing whether

unpleaded issue was tried by consent and holding that it was not).

      All of Jackson’s individual issues are subsumed within the analysis set

forth above, but in the interest of thoroughness, we will articulate and dispose of

each of his six issues. We overrule Jackson’s first issue claiming that Kisiah’s

motion to modify was untimely filed because it complains of a pleading defect

and was therefore required to be filed per rule 90 of the rules of civil procedure

before the judgment was signed; the motion to modify was timely filed within

thirty days of the trial court’s judgment, and the judgment’s failure to comport with

the pleadings is a complaint about the judgment that is governed by rule 301, not

a complaint about the pleadings that is governed by rule 90. Compare Tex. R.

Civ. P. 90 (providing that pleading defect must be raised prior to judgment), with

Tex. R. Civ. P. 301 (providing that the judgment shall conform to the pleadings);

see also Tex. R. Civ. P. 329b (providing that motion to modify is timely if filed

within thirty days of judgment). We likewise overrule Jackson’s second and third

issues complaining that the trial court abused its discretion by granting the

                                         7
amended take-nothing judgment because Kisiah had fair notice of Jackson’s

claim and because Jackson pleaded a claim against Kisiah for infliction of bodily

injury; these complaints mistakenly focus on what was pleaded in Jackson’s

petition––a negligence claim, instead of on what was not for purposes of

conforming the judgment to the pleadings—that being an intentional tort cause of

action.   We overrule Jackson’s fourth issue claiming that his unpleaded

intentional tort cause of action was tried by consent; it was not, as set forth

above. We overrule Jackson’s fifth issue claiming that the trial court abused its

discretion by granting the motion to modify and signing an amended take-nothing

judgment against him; as set forth above, the judgment must conform to the

pleadings, and the trial court in this case did not abuse its discretion by signing

an amended judgment that Jackson take nothing on his pleaded negligence

claim against Kisiah. Finally, we overrule Jackson’s sixth issue claiming that the

trial court abused its discretion and made an inequitable ruling by signing an

amended judgment that Jackson take nothing when Kisiah ―did not dispute

liability‖; Kisiah did dispute liability, and the case proceeded to trial on Kisiah’s

liability on Jackson’s pleaded negligence claim.

                                 IV. CONCLUSION

      Having overruled all of Jackson’s issues, we affirm the trial court’s take-

nothing judgment.

                                             SUE WALKER
                                             JUSTICE


                                         8
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: June 20, 2013




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