Appeal from the 333rd District Court Harris County, Texas
Trial Court Cause No. 2014-71128.
consists of Justices Wise, Zimmerer, and Spain.
Charles A. Spain Justice.
Sonya Ashley appeals from a final judgment awarding her $207,
617.44 in actual damages on her negligence claims against
appellees North Houston Pole Line, L.P. and Joaquin Jimenez.
As we hold that Ashley waived her two issues on appeal, we
claims that her vehicle was hit by a truck driven by Jimenez
in the course and scope of his employment with North Houston.
Ashley brought suit asserting negligence claims against North
Houston and Jimenez. At trial, the jury awarded Ashley $207,
617.44 in actual damages. Ashley moved for judgment on this
verdict, submitting a proposed final judgment for $207,
617.44 in actual damages plus pre- and post-judgment interest
and court costs. The trial court signed the final judgment
requested by Ashley, who then filed a notice of appeal.
contends in two issues that (1) the trial court erred in
admitting the counter-affidavit and trial testimony of
appellees' expert Dr. David Randall and (2) the amount of
damages awarded by the jury was against the great weight and
preponderance of the evidence. We first address
appellees' contention that these issues have been waived
because Ashley moved for judgment on the jury's verdict
and failed to preserve any complaints on appeal.
who moves for judgment on the verdict and does not reserve
the right to complain may not take a position on appeal
inconsistent with that part of the judgment. Litton
Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22
(Tex. 1984); see First Nat'l Bank of Beeville v.
Fojtik, 775 S.W.2d 632, 633 (Tex. 1989). To preserve the
right to complain about a judgment on appeal, a movant for
judgment must make the trial court aware of its disagreement
with the content and result of the judgment. See
Fojtik, 775 S.W.2d at 633 (no waiver when
plaintiffs' motion for entry of judgment referenced
plaintiffs' motion for new trial, stated that plaintiffs
agreed only with form of judgment, and specified
plaintiffs' disagreement with content and result of
Ashley moved for judgment on the jury's verdict,
attaching her proposed judgment as an exhibit, which the
trial court signed as its final judgment. She did not file a
motion for a new trial or otherwise object to the verdict
prior to moving for judgment. Neither Ashley's motion for
entry of judgment, nor the final judgment itself, references
any disagreement with the jury's verdict, nor do the
documents note that the proposed judgment was approved
"in form only." Ashley's proposed judgment,
moreover, sought the same amount of actual damages in the
jury verdict-$207, 617.44. Having moved for judgment on the
jury's verdict without reservation, Ashley cannot now
challenge that judgment on appeal. See Litton, 668
S.W.2d at 321-22 (holding that movant could not challenge on
appeal actual damages it moved for in final judgment);
see also Tex. R. Civ. P. 324(b) (requiring motion
for new trial to complain of factual insufficiency of
evidence to support jury finding).
claims that language in the final judgment stating it was
"appealable" preserves error. We disagree. The
sentence Ashley refers to states, "This judgment is
final, disposes of all claims and all parties, and is
appealable." This boilerplate language concerning the
finality of the judgment fails to preserve a complaint for
appellate review. See Tex. R. App. P. 33.1(a)
(general rule for preservation of appellate complaints);
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93
also claims that her notice of appeal demonstrates that she
disagreed with the judgment. Her postjudgment notice of
appeal, however, does not satisfy the requirements of Texas
Rule of Civil Procedure 324(a), (b) and Texas Rule of
Appellate Procedure 33.1(a).
cases that Ashley cites in her briefing are distinguishable.
While Ashley argues that Fojtik favors her position,
Ashley's statement that the final judgment "is
appealable" does not comport with Fojtik, where
the supreme court held that plaintiffs had preserved error by
specifying in their motion for judgment that they
"disagree with the findings of the jury" and
"feel there is a fatal defect [in the judgment] which
will support a new trial," and by requesting entry of
the proposed judgment only if the trial court denied their
motion for a new trial. 775 S.W.2d at 633. Ashley, by
contrast, did not move for a new trial, and did not include
any language either in her motion for entry of judgment, or
in the final judgment itself, explicitly expressing any
disagreement with the terms of the judgment. Ashley also
cites Melissinos v. Phamanivong, which involved a
party who challenged the proposed final judgment and also
moved for a new trial-circumstances not present here. 823
S.W.2d 339, 342 (Tex. App.-Texarkana 1991, writ denied).
Likewise, Andrew Shebay & Co., P.L.L.C. v.
Bishop involved a losing party that did not move for
judgment, but instead approved the form and substance of the
prevailing party's proposed judgment only after filing a
motion for judgment notwithstanding the verdict, thereby
clearly expressing its disagreement with the judgment
ultimately issued. 429 S.W.3d 644, 647-48 (Tex. App.-Houston
[1st Dist.] 2013, pet. denied). Ashley also cites
Seeberger v. BNSF Railway Co. for the proposition
that, "[i]n applying Fojtik, [courts] have not
required specific language be used to reserve a right to
appeal, but instead have focused on whether the trial court
was made aware that the party requesting judgment be entered
disagreed with the judgment." No. 01-12-00583-CV, 2013
WL 5434141, at *3 (Tex. App.- Houston [1st Dist.] Sept. 26,
2013, pet. denied) (mem. op.). We agree with this statement,
but disagree that Ashley took any steps to make the trial
court "aware" that she "disagreed with the
judgment" she proposed.
regard to her argument that the trial court should have
excluded the testimony of Dr. Randall, Ashley cites Green
v. Texas Workers' Compensation Insurance Facility,
993 S.W.2d 839 (Tex. App.-Austin 1999, pet. denied). In
Green, the Third Court of Appeals held that the
plaintiff had not waived his right to appeal the exclusion of
his expert at trial when the plaintiff had "never taken
a position inconsistent with his contention that the
exclusion of [his expert]'s testimony was error."
Id. at 843. Again, however, the factual settings are
different. Green moved for a new trial, which ...