Litton Indus. Products, Inc. v. Gammage

• Decision Date: 11 January 1984
• Docket Number: No. C-2003,C-2003
• Citation: 668 S.W.2d 319
• Parties: LITTON INDUSTRIAL PRODUCTS, INC. et al., Petitioners, v. Earnest GAMMAGE, Respondent.
• Court: Texas Supreme Court

Page 319

668 S.W.2d 319

LITTON INDUSTRIAL PRODUCTS, INC. et al., Petitioners, v. Earnest GAMMAGE, Respondent.

No. C-2003.

Supreme Court of Texas.

Jan. 11, 1984.

A.J. Watkins, Butler, Binion, Rice, Cook & Knapp, Eugene A. Cook and Louis H. Salinas, Jr., Fletcher Etheridge, Houston, for petitioners.

Young, Cook, Pfeifer and Hampton, Russell L. Cook, Jr., and Phillip A. Pfeifer, Houston, for respondent.

POPE, Chief Justice.

Earnest Gammage sued and obtained a judgment against Litton Industrial Products, Inc. (Litton) upon a jury verdict of defendant's strict liability, negligence, and breach of warranty. The judgment was for $705,852 actual damages which the trial court trebled, pursuant to the terms of the Deceptive Trade Practice Act as it was first enacted in 1973. The court of appeals affirmed the judgment of the trial court. 644 S.W.2d 170. We granted the application for writ of error to review the holding of the court of appeals that Litton Industries had waived its right to complain that there was no evidence and insufficient evidence that it did any act or practice that violated the Deceptive Trade Practice Act after its effective date. We reverse the judgment of the court of appeals in part and render judgment for actual damages only.

Earnest Gammage, a diesel mechanic, asked his employer, Waukesha-Pearce Industries, Inc., to buy for him a 3/4-inch ratchet adapter. As was the practice, Waukesha purchased the tool and charged it to Gammage. Gammage and the other employees furnished their own hand tools. That Litton manufactured the ratchet adapter is not disputed. Gammage was putting the tool under load by pulling it toward himself when it failed, causing him to fall backwards resulting in extensive personal injuries. The evidence was that the pawl, a component of the adapter, had a chipped tooth, which caused it to fail when Gammage put it under load.

The jury made the following findings: the tool was defectively manufactured which was a producing cause of the occurrence in question; the tool was unfit for ordinary purposes for which such tools are used; the unfitness was a producing cause of the occurrence; Litton failed to warn Gammage that the ratchet adapter would slip, which was negligence and a proximate cause; Gammage was not contributorily negligent; and the actual damages to Gammage were $705,852. Upon the basis of those findings, Litton moved that judgment for the amount of actual damages found by the jury be rendered against it. The trial court did not, however, grant that motion. It instead rendered judgment for three times that amount.

Litton urged on its appeal to the court of appeals that plaintiff Gammage could not recover treble damages for an occurrence that preceded the effective date of the Deceptive Trade Practices Act, May 21, 1973, and that there was no evidence and insufficient evidence that showed the date of the occurrence. The court of appeals ruled that Litton had waived its points by its own motion that the trial court render judgment for the actual damages and also by failing to file a motion for new trial. This court granted the application for writ of error to review the holding that Litton had waived its points, and we conclude that it did not.

By filing its motion that the trial court render judgment on the verdict for the actual damages found by the jury, Litton could not, on appeal, take a position inconsistent with that part of the judgment. Miner-Dederick Construction Corporation v. Mid-County Rental Service, Inc., 603 S.W.2d 193 (Tex.1980). Litton could not complain either that the findings in support of the actual damages had no support in the evidence or that the evidence was factually insufficient. Likewise, the jury findings concerning Litton's negligence and its manufacture of a defective product could not be attacked under our decision in Miner-Dederick, supra.

Litton has not attacked on appeal the judgment for actual damages. Litton's motion was not for a judgment grounded upon the Deceptive Trade Practices Act; it was, in fact, made to avoid the treble damages allowed by that law. Litton has at all times during trial and appeal taken the stance that this is not a suit for damages under the Deceptive Trade Practices Act. Its motion for judgment was consistent with, rather than inconsistent with that posture. Litton did not waive its right to complain about the trial court's trebling the damages.

We disapprove, however, Litton's argument that it reserved the right to complain about the judgment, because it accompanied its motion for judgment with a brief in which it took back what it urged in its motion. Litton's trial brief that accompanied its motion reserved the right to "challenge any adverse judgment based upon the verdict." We disapprove a practice by which a party, by motion, induces the trial court on the one hand to render a judgment, but reserves in a brief the right for the movant to attack the judgment if the court grants the motion. Litton could not have it both ways. The briefs that Litton filed in the trial court were brought forward in the transcript. This violates the provision of Rule 376-a(a), Tex.R.Civ.P., that says trial briefs and memoranda of authorities shall not be included in the transcript. We arrive at our decision in this case, however, that Litton did not waive its right to complain about the treble damages, because the motion itself excluded a judgment for treble damages.

The court of appeals also erred in its holding that Litton waived its points that there was no evidence or insufficient evidence that the act or practice occurred after May 21, 1973, the date the Deceptive Trade Practices Act became effective. That court held that Litton's failure to file a motion for new trial urging these points amounted to a waiver. This case was tried in March 1981, shortly after this court had promulgated a revised Rule 324, Tex.R.Civ.P., relating to motions for new trial.

Prior to January 1978, Rule 324 had an express provision that a motion for new trial was not required in a non-jury case or in a case where the appeal was based on some error of the trial court arising after its action on the motion for new trial. It was settled under that rule that, in a non-jury case, one could raise for the first time on appeal complaints that attacked factual sufficiency of the evidence to support the trial court's expressed or implied findings of fact. Boswell v. Handley, 397 S.W.2d 213 (Tex.1965). There was at that time an additional Rule 325 that required a motion for new trial to complain about motions for continuance, change of venue, or other preliminary motions.

Effective January 1, 1978, Rule 325 was repealed and Rule 324 was amended to provide:

A motion for new trial shall not be a prerequisite to the right to complain on appeal, in any jury or non-jury case. A motion for new trial may be filed by any party, however, and the omission of a point in such motion shall not preclude the right to make the complaint on appeal. Notwithstanding the foregoing, it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon. A complaint that one or more of a jury's findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact may be presented for the first time on appeal.

Courts of appeals and the bar had trouble with the fourth sentence of Rule 324, quoted above. Brock v. Brock, 586 S.W.2d 927 (Tex.Civ.App.--El Paso 1979, no writ), construed the rule to excuse a motion for new trial urging no evidence or insufficient evidence in jury cases but not in non-jury cases. The third sentence of the above quoted rule, according to Brock, required a motion for new trial if the complaint had not otherwise been ruled upon. It held that "no evidence" points could be ruled upon in a trial court by an order on a motion for instructed verdict, an objection to the submission of a fact issue to the jury, a motion for judgment notwithstanding the verdict, or a motion to disregard the jury's answer. The court held that since none of those steps are available for a ruling in a non-jury case, a motion for new trial was required so the trial court would have the chance to rule. The court then held that the fourth sentence of ...