NO. 07-10-00280-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
FEBRUARY 8, 2011
SINCERELY YOURS, L.P., APPELLANT
v.
NCI BUILDING SYSTEMS, L.P., D/B/A METALLIC
BUILDING COMPANY, APPELLEE
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY;
NO. 2006-60150-393; HONORABLE DOUGLAS M. ROBISON, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER OF DISMISSAL
We withdraw our December 22, 2010 Order of Dismissal and substitute the
following:
Appellee, NCI Building Systems, L.P., d/b/a Metallic Building Company (NCI),
filed a motion to dismiss the appeal filed by appellant, Sincerely Yours, L.P. (Sincerely
Yours). We grant the motion and dismiss the appeal.
Sincerely Yours asserted claims of defective design and fabrication of roof
trusses that were manufactured by NCI. In 2004, during a thunderstorm, the roof of
Sincerely Yours’s warehouse collapsed causing the damages claimed by Sincerely
Yours in this suit. During the resulting protracted and hotly contested trial, Sincerely
Yours offered the testimony of Fred Anderson to establish the extent of its damages.
The trial court sustained NCI’s relevancy objection to Anderson’s testimony. Sincerely
Yours excepted to the trial court’s ruling. The trial court noted the exception and stated
its opinion that the exception had been perfected for the record.
Despite the exclusion of Anderson’s testimony, the jury returned a verdict in favor
of Sincerely Yours. Sincerely Yours then filed a motion to sign the judgment that
requested the trial court “sign a judgment based on the jury’s findings.” Attached to this
motion, Sincerely Yours included a proposed Final Judgment that reflected the findings
of the jury, noted that it was “approved as to form and substance,” and was signed by
the representatives of both parties to the present appeal. The trial court signed the
proposed final judgment without any changes. Subsequently, Sincerely Yours filed a
motion for new trial based, inter alia, on the exclusion of Anderson’s testimony. After
hearing, the trial court overruled Sincerely Yours’s new trial motion, and Sincerely Yours
timely perfected the present appeal.
NCI has filed a motion to dismiss Sincerely Yours’s appeal. NCI contends that
Sincerely Yours waived its right to appeal by moving for final judgment that it approved
as to form and substance without expressly reserving the right to complain of the
judgment by appeal in its motion. Sincerely Yours responds contending that the
2
authority upon which NCI bases its motion applies only to agreed or consent judgments,
and that the judgment in the present case was clearly not agreed or the result of
consent.
When a litigant moves the trial court to enter judgment, and the trial court enters
the proposed judgment, the motion for entry of judgment will generally be considered an
acquiescence in the verdict, which will foreclose a subsequent attack on appeal.
Menchaca v. Bishop, No. 14-94-00480-CV, 1996 Tex.App. LEXIS 1417, at *2
(Tex.App.—Houston [14th Dist.] April 11, 1996, no writ) (not designated for publication)
(citing Texas Commerce Bank v. Lebco Constructors, 865 S.W.2d 68, 80 (Tex.App.—
Corpus Christi 1993, writ denied), and Casu v. Marathon Refining Co., 896 S.W.2d 388,
389 (Tex.App.—Houston [1st Dist.] 1995, writ denied)). When a party moves for entry of
judgment for a particular amount, and the trial court renders judgment for that amount,
that party cannot challenge the judgment on appeal. Casu, 896 S.W.2d at 389; see
Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984). For a
party to preserve the right to appeal a judgment that it moved the trial court to enter, the
party must state in its motion for entry of judgment that it agrees only with the form of
the judgment, and note its disagreement with the content and result of the judgment.
BKT Corp. v. Express-News Corp., No. 04-96-00871-CV, 1997 Tex.App. LEXIS 5288,
at *6-*7 (Tex.App.—San Antonio October 8, 1997, no pet.) (not designated for
publication) (citing First Nat’l Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex.
1989)); see also Bonner v. Texas Children’s Hosp., No. 13-03-228-CV, 2006 Tex.App.
LEXIS 1331, at *5 (Tex.App.—Corpus Christi February 16, 2006, pet. denied) (mem.
op.); Nationscredit Corp. v. CSSI, The Support Group, Inc., No. 05-99-01612-CV, 2001
3
Tex.App. LEXIS 1313, at *25 (Tex.App.—Dallas March 1, 2001, no pet.) (not designated
for publication); Menchaca, 1996 Tex.App. LEXIS 1417, at *3; Casu, 896 S.W.2d at
390.
In the present case, Sincerely Yours moved the trial court to sign a judgment
based on the jury’s findings. This motion did not state that Sincerely Yours agrees only
with the form of the judgment nor does it note Sincerely Yours’s disagreement with the
content and result of the judgment. In fact, the proposed judgment is signed by
Sincerely Yours as “approved as to form and substance.” The final judgment entered
by the trial court is the same judgment proposed by Sincerely Yours. Therefore, as
Sincerely Yours unreservedly invited the trial court to enter the judgment it entered, it
may not attack that judgment on appeal. See Casu, 896 S.W.2d at 390.
In response to NCI’s motion to dismiss, Sincerely Yours contends that it did not
consent to the judgment entered by the trial court and, therefore, did not waive its
appeal. We agree with Sincerely Yours that the judgment entered in this case was not
a consent judgment. However, when a party makes an unqualified motion for entry of
judgment, the issue of consent is irrelevant. See id. When a waiver of appeal is based
on a party’s motion for entry of judgment, the only issue is whether the trial court
entered the judgment that the party asked it to enter. See id. In the present case, the
trial court signed the precise judgment proposed by Sincerely Yours. Thus, as to the
issue of whether Sincerely Yours waived its right to appeal by moving for the entry of
judgment, it is of no import that the judgment was not a consent judgment.
4
Finally, Sincerely Yours contends that the record of the trial and the hearing on
Sincerely Yours’s post-judgment motion for new trial reflects that the trial court was
aware of Sincerely Yours’s desire to appeal the exclusion of Anderson’s testimony
regarding damages. However, the trial court’s acknowledgement of Sincerely Yours’s
desire to appeal does not negate Sincerely Yours’s waiver of appeal. Clearly, a waiver
of appeal arising from an unqualified motion for entry of judgment would waive any error
occurring during trial, even if that claimed error was properly preserved. See id.
Furthermore, a motion for new trial that is filed after the trial court has entered a
judgment that was unqualifiedly requested by the party moving for new trial does not
undo or cure the waiver of right to challenge the judgment requested by that party. See
Menchaca, 1996 Tex.App. LEXIS 1417, at *4.
If a party moves for entry of judgment without reservation, as Sincerely Yours did
in the present case, we hold that all appellate issues that challenge the judgment or any
portion of the judgment that was unqualifiedly requested by that party and entered by
the trial court are waived. If a party wants to preserve issues for attack on appeal, the
party must reserve that right in its motion for entry of judgment by stating that it agrees
only with the form of the judgment, and disagrees with the content and result of the
judgment. See Fojtik, 775 S.W.2d at 633; Casu, 896 S.W.2d at 391-92.
For the foregoing reasons, we grant NCI’s motion to dismiss Sincerely Yours’s
appeal.
Mackey K. Hancock
Justice
5