Cecil v. Smith

• Decision Date: 27 February 1991
• Docket Number: No. D-0100,D-0100
• Parties: Mildred CECIL, Petitioner, v. Charles Madison SMITH, Respondent
• Court: Texas Supreme Court

Page 509

804 S.W.2d 509

Mildred CECIL, Petitioner, v. Charles Madison SMITH, Respondent.

No. D-0100.

Feb. 27, 1991.

M. Keith Dollahite, Tyler, Michael G. George, Athens, for petitioner.

James A. Attaway, Jr., Quitman, for respondent.

OPINION

HIGHTOWER, Justice.

The issue before this court is whether a timely filed motion for new trial which is overruled by operation of law preserves appellate complaints of no evidence and factual insufficiency of the evidence to support a jury finding. The trial court, after a jury trial, rendered judgment concerning ownership of a certificate of deposit and the validity and delivery of a deed. Mildred Cecil (Cecil) timely filed a motion for new trial and an amended motion for new trial asserting, among other things, that there was no evidence and factually insufficient evidence to support the jury findings. The amended motion for new trial was overruled by operation of law. ¹ The court of appeals affirmed. 790 S.W.2d 709. The court of appeals held that Cecil failed to preserve her points of error because she failed "to call the trial court's attention to her timely filed motion for new trial...." 790 S.W.2d at 716 (emphasis in original). We reverse and remand this cause to the court of appeals.

Martha L. Wisdom (Decedent) died testate in 1985. Her will was admitted to probate and named Charles Madison Smith (Smith) independent executor and left the entire estate to Smith and Cecil. In 1988, Smith filed an application to recover possession of the proceeds of a certificate of deposit allegedly belonging to Decedent's estate. Subsequently, Cecil and others filed suit against Smith seeking to remove him as independent executor and to set aside a deed executed by Decedent in favor of Smith. Both proceedings were transferred to the Henderson County Court At Law.

After a jury trial, judgment was rendered on the jury's verdict in favor of Smith that the deed in question was valid, that Decedent delivered the deed to Smith prior to her death and that Decedent's estate owned the certificate of deposit. Cecil timely filed a motion for new trial. Cecil's motion for new trial asserted, among other things, the following: (1) the evidence was factually insufficient to support each finding; (2) the jury's failure to find that Decedent did not deliver the deed to Smith was contrary to the overwhelming weight and preponderance of the evidence; (3) there was no evidence to support the findings; and (4) the contrary of each finding was established as a matter of law. The trial court did not hear or otherwise consider the amended motion for new trial and the motion was overruled by operation of law. The court of appeals concluded sua sponte that Cecil failed to preserve her points of error asserting that there was no evidence or factually insufficient evidence to support the jury's findings. The court of appeals stated: "Our legal conclusion that Cecil's points of error ... were not preserved for review rests upon Cecil's failure to call the trial court's attention to her timely filed motion for new trial that alleges those claimed errors." 790 S.W.2d at 716 (emphasis in original).

Cecil argues that her motion for new trial which was overruled by operation of law preserves appellate complaints of no evidence and factual insufficiency of the evidence to support the jury's findings. We agree.

A point in a motion for new trial is a prerequisite to complain on appeal that the evidence is factually insufficient to support a jury finding and that a jury finding is against the overwhelming weight of the evidence. Tex.R.Civ.P. 324(b)(2) and (3). See Tex.R.App.P. 52(d). "No evidence" ² points may be raised by either (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury's answer to a vital fact issue or (5) a motion for new trial. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985). Cecil's no evidence points of error were raised only in her motion for new trial.

A motion for new trial must be filed prior to or within thirty days after the judgment is signed. Tex.R.Civ.P. 329b(a). One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment is signed. Tex.R.Civ.P. 329b(b). If an original or amended motion for new trial is not determined by written order signed within seventy-five days after the judgment was signed, it is overruled by operation of law. Tex.R.Civ.P. 329b(c).

In requiring Cecil to call the trial court's attention to her motion for new trial, the court of appeals relied upon the "presentment requirement" in Rule 52(a) of the Texas Rules of Appellate Procedure and Moore v. Mauldin, 428 S.W.2d 808 (Tex.1968). ³ Rule 52(a) states the general rule for preserving appellate complaints and provides in relevant part:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.

Tex.R.App.P. 52(a) (emphasis added).

While Rule 52(a) provides the general rule for preserving appellate complaints, Rule 52(d) specifically applies to preserving complaints in motions for new trial. Rule 52(d) provides that "[a] point in a motion for new trial is a prerequisite to appellate complaint in those instances provided in paragraph (b) of Rule 324 of the Texas Rules of Civil Procedure." ⁴ Rule 52(d) expressly applies when Rule 324(b) requires error to be preserved in a motion for new trial. When Rule 324(b) requires a motion for new trial to preserve error, the complaining party is required only to comply with the filing requirements in Rule 329b to preserve the points of error. ⁵ See generally Riley v. Meriwether, 780 S.W.2d 919, 922 (Tex.App.--El Paso 1989, no writ); Metot v. Danielson, 780 S.W.2d 283, 286 (Tex.App.--Tyler 1989, writ denied); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 852 (Tex.App.--Houston [1st Dist] 1987, writ ref'd n.r.e.), cert dismissed, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988).

Factual insufficiency points of error are expressly required by Rule 324(b) to be raised in a motion for new trial. Therefore, we hold that Cecil's motion for new trial points complaining that the evidence was factually insufficient are preserved for appellate review by her compliance with the filing requirements of Rule 329b and the subsequent overruling of the motion for new trial by operation of law. See Riley v. Meriwether, 780 S.W.2d at 922; Metot v. Danielson, 780 S.W.2d at 286.

Concerning Cecil's no evidence points of error, Rule 324 does not require no evidence points of error to be raised in a motion for new trial to preserve the complaint for appeal. However, no evidence complaints may be raised in a motion for new trial. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d at 822. In this case, Cecil's no evidence points of error were raised only in her motion for new trial. Although Rule 52(d) only specifically refers to Rule 324(b) error preservable by motion for new trial, we see no reason to distinguish between error specifically preservable by motion for new trial in Rule 324(b) and other error preservable by motion for new trial. Requiring compliance with Rule 52(a) in addition to Rule 329b's filing requirement would unnecessarily resurrect the "presentment" requirement which this court eliminated in 1981 to motions for new trial. Tex.R.Civ.P. 329b comment (Vernon Supp.1990). Furthermore, requiring the additional compliance with Rule 52(a) would undermine our goal of judicial economy by creating needless expense and delay. See Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989). Consequently, we hold that no evidence complaints are preserved for appellate review if Rule 329b's filing requirements for motions for new trial are met. ⁶ See Riley v. Meriwether, 780 S.W.2d at 922; Metot v. Danielson, 780 S.W.2d at 286.

The court of appeals did not consider Cecil's points of error asserting that the evidence was legally and factually insufficient to support the jury findings. Because the unaddressed points of error include attacks on the sufficiency of the evidence, we remand the cause to the court of appeals for consideration of the previously unaddressed points. See Coulson & CAE, Inc. v. Lake LBJ Municipal Utility District, 734 S.W.2d 649, 652 (Tex.1987).

Accordingly, we reverse and remand the cause to the court of appeals.

CORNYN, J., dissents.

CORNYN, Justice, dissenting.

I respectfully dissent. By holding that a litigant may preserve error by presenting a complaint to the court of appeals for the first time on appeal, the majority has rendered the requirements of Texas Rule of Appellate Procedure 52(a) and Texas Rule of Civil Procedure 324(b)(2) meaningless. ¹ Furthermore, the majority gives its blessing to a practice that was specifically eliminated by the 1984 amendment to Rule 324. Factual insufficiency complaints, never brought to the trial judge's attention, may ultimately result in a new trial, but only after the added expense and delay of an appeal. Rules 324, 329b and 52(a) should be interpreted, without ignoring any one rule at the expense of the others, to require that the trial court be given an opportunity to pass at least once on all claimed errors so that a potentially unnecessary appeal can be avoided.

Confusion about when a motion for new trial is required as a prerequisite to appeal is not new. See Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 322-24 (Tex.1984). Adding to the confusion is the fact that this...