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First Nat. Bank of Beeville v. Fojtik

Supreme Court of Texas
Sep 13, 1989
775 S.W.2d 632 (Tex. 1989)

Summary

concluding that a reservation contained in a motion to enter judgment preserved the movants' right to complain of the judgment

Summary of this case from Davenport v. Hall

Opinion

No. C-7833.

June 28, 1989. On Rehearing September 13, 1989.

Appeal from the 156th District Court, Bee County, Rachel Littlejohn, J.

Tamara Tejml Cuthrell, Frank E. Weathered, Corpus Christi, Marion E. Williams, Jr., Beeville, Ronald B. Brin, Corpus Christi, for petitioners.

James H. Robichaux, Corpus Christi, for respondents.


Felix and Cecelia Fojtik brought suit against First National Bank of Beeville and two of its directors, Bevans Welder and Jack Chesnut, for breach of contract, conversion, tortious interference, fraud, conspiracy and violations of the Texas Deceptive Trade Practices — Consumer Protection Act (DTPA), Tex. Bus. Com. Code Ann. §§ 17.41 — .63 (Vernon 1987). The jury returned a verdict in favor of the Fojtiks against First National Bank for breach of contract, violations of the DTPA and fraud, but not for tortious interference or conversion. The jury, however, answered all damage issues with findings of zero damages. We agree with the court of appeals that this cause should be reversed and remanded for a new trial. 752 S.W.2d 669 (1988).

In the trial court, Fojtik filed a motion for judgment which stated:

While Plaintiffs disagree with the findings of the jury and feel there is a fatal defect which will support a new trial, in the event the Court is not inclined to grant a new trial prior to the entry of judgment, Plaintiffs pray the Court enter the following judgment. Plaintiffs agree only as to the form of the judgment but disagree and should not be construed as concurring with the content and result.

In the court of appeals, Fojtik asserted that the jury's findings of zero damages were against the great weight and preponderance of the evidence and fatally conflicted with the findings on liability and causation. We do not agree with the portion of the opinion of that court which states that Fojtik may not complain that the evidence fails to support the jury's findings on damages. There must be a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms. Fojtik's reservation of the right to complain in the instant case was an appropriate exercise of such a right and is distinguishable from the attempted reservation in Litton Industrial Products, Inc. v. Gammage, 668 S.W.2d 319, 322 (Tex. 1984). The application for writ of error is denied.


Summaries of

First Nat. Bank of Beeville v. Fojtik

Supreme Court of Texas
Sep 13, 1989
775 S.W.2d 632 (Tex. 1989)

concluding that a reservation contained in a motion to enter judgment preserved the movants' right to complain of the judgment

Summary of this case from Davenport v. Hall

stating that "[t]here must be a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms" and a party should include a reservation of rights in any such motion for entry of judgment

Summary of this case from Wylie v. Simmons

stating that "[t]here must be a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms" and a party should include a reservation of rights in any such motion for entry of judgment approving reservation of rights language in motion for entry of judgment

Summary of this case from MAC HAIK v. DIAZ

In First Nat'l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989), the supreme court noted that a party may preserve the right to challenge a judgment on appeal if his motion for relief states, in the motion itself, that he agrees only with the form of the judgment and disagrees with the content and result.

Summary of this case from Bonner v. TCH
Case details for

First Nat. Bank of Beeville v. Fojtik

Case Details

Full title:FIRST NATIONAL BANK OF BEEVILLE, Jack Chesnut and Bevans Welder…

Court:Supreme Court of Texas

Date published: Sep 13, 1989

Citations

775 S.W.2d 632 (Tex. 1989)

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