In the Estate of Byford, No. 06-09-00007-CV (Tex. App. 6/25/2009)

• Decision Date: 25 June 2009
• Docket Number: No. 06-09-00007-CV.,06-09-00007-CV.
• Parties: IN THE ESTATE OF IVOR D. BYFORD, Deceased.
• Court: Texas Court of Appeals

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IN THE ESTATE OF IVOR D. BYFORD, Deceased.

No. 06-09-00007-CV.

Court of Appeals of Texas, Sixth District, Texarkana.

Submitted: June 19, 2009.

Decided: June 25, 2009.

On Appeal from the 294th Judicial District Court, Van Zandt County, Texas, Trial Court No. 01-00315.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice CARTER.

A jury found that Nona Parkerson exercised undue influence over Ivor D. Byford and that Byford did not have testamentary capacity to execute a will in 2000 naming Parkerson executrix and sole heir of Byford's estate. It further found that Parkerson did not act in good faith in defending the 2000 will. As a result, the trial court probated Byford's 1997 will. Parkerson appeals the trial court's judgment and argues that there was no evidence of undue influence, that Byford lacked testamentary capacity, and that the "overwhelming" and "uncontroverted" evidence conclusively established Byford had testamentary capacity and was not unduly influenced when executing the 2000 will. Because we find that Parkerson failed to preserve these arguments, we overrule her points of error and affirm the trial court's judgment.

The "cardinal rule for preserving error is that an objection must be clear enough to give the trial court an opportunity to correct it." Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008); see Tex. R. Civ. P. 321 ("Each point relied upon in a motion for new trial . . . shall briefly refer [to the relevant trial proceeding] in such a way that the objection can be clearly identified and understood by the court."). A motion for new trial is a prerequisite to a complaint on appeal that the evidence is factually insufficient to support the jury's findings or that the findings are against the great weight of the evidence. Tex. R. Civ. P. 324. While this rule "does not expressly require a motion for new trial to complain of legal sufficiency in a jury trial, the Supreme Court has imposed such a requirement if the error has not been otherwise preserved." Ramirez v. State, 973 S.W.2d 388, 390 (Tex. App.-El Paso 1998, no pet.) (citing Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985)). In order to preserve a "no-evidence" point of error, it must first be presented to the trial court in: (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. Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex. 1988).

Judicial economy requires that a trial court have the opportunity to correct an error before an appeal proceeds. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999). The purpose of a motion for new trial is to provide the trial court with such an opportunity. Gerdes v. Kennamer, 155 S.W.3d 523, 532 (Tex. App.-Corpus Christi 2004, pet. denied). For this reason, Rule 322 of the Texas Rules of Civil Procedure prohibits generality in motions for new trial. "Grounds of objections couched in general terms—as . . . the verdict of the jury is contrary to law, and the like—shall not be considered by the court." Tex. R. Civ. P. 322. Consequently, a motion for new trial is deficient if it merely states that the verdict is not supported by the evidence or is contrary to the evidence. White v. Wadlington, 78 Tex. 159, 14 S.W. 296 (1890) (finding grounds on which claim that "the verdict is contrary to the evidence" should be distinctly stated); Murphy v. Maroney, 456 S.W.2d 787, 788 (Tex. Civ. App.-Waco 1970, writ ref'd n.r.e.) ("The assignments in the prerequisite motion for new trial are that `the verdict is contrary to the evidence,' and `there is insufficient evidence' or `no evidence' to support the verdict of the jury and the judgment. The assignments are too general to be considered."); Barton v. Davis, 441 S.W.2d 299, 301 (Tex. Civ. App.-Beaumont 1969, writ ref'd n.r.e.) ("The point that the trial court committed error in failing to grant the defendant a new trial on the ground that the verdict of the jury had insufficient evidence to support the findings of the jury . . . was too broad a point or attempted assignment to merit consideration."); Kolancy v. Pelech, 201 S.W.2d 257, 259 (Tex. Civ. App.-Galveston 1947, no...