HOUSTON – An appeals court affirmed the judgment of the 333rd District Court of Harris County on the grounds that the appellant waived her two issues on appeal.
The 14th Court of Appeals affirmed a judgment of $207,617.44 in actual damages for Sonya Ashley on Dec. 5 in her suit against North Houston Pole Line and Joaquin Jimenez. Ashley had sued them over allegations Jimenez struck her vehicle with a truck while he was employed by North Houston Pole.
While she took issue with her award and requested pre- and post-judgment interest and court costs on top of it, Justice Charles Spain said she forfeited her key concerns on appeal. The said concerns were that the lower court allowed a counter-affidavit and testimony of North Houston Pole Line’s expert Dr. David Randall and that the damages the jury awarded didn’t align with the evidence.
“These issues have been waived because Ashley moved for judgment on the jury’s verdict and failed to preserve any complaints on appeal,” wrote Spain. “A party 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.”
Spain pointed out that Ashley filed a motion for judgment on the jury’s decision and included her wished-for judgment as an exhibit. The lower court signed that as its final judgment. Spain wrote Ashley failed to file a motion for a new trial or challenge the verdict before she filed for judgment and her motion for judgment, as well as the final judgment, both lack any mention or issue with the jury’s decision. Plus, Ashley’s proposed judgment requested the same amount of actual damages that the jury rewarded, $207,617.44.
“Having moved for judgment on the jury’s verdict without reservation, Ashley cannot now challenge that judgment on appeal,” Spain wrote.
Ashley raised the argument that the phrasing in the final judgment, stating it was “appealable,” preserves error. But Spain challenged that and said the judgment doesn’t preserve a complaint when it comes to taking it to the appeals court.
While Ashley argued that her notice for an appeal shows that she wasn’t satisfied with the judgment, this doesn’t comply with the Texas Rule of Civil Procedure 324(a), (b) and Texas Rule of Appellate Procedure 33.1(a).
“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,” Spain wrote.