Cecil v. Smith

OPINION

HIGHTOWER, Justice.

The issue before this court is whether a timely filed motion for new trial which is *510overruled by operation of law preserves appellate complaints of no evidence and factual insufficiency of the evidence to support a jury finding. The trial court, after a jury trial, rendered judgment concerning ownership of a certificate of deposit and the validity and delivery of a deed. Mildred Cecil (Cecil) timely filed a motion for new trial and an amended motion for new trial asserting, among other things, that there was no evidence and factually insufficient evidence to support the jury findings. The amended motion for new trial was overruled by operation of law.1 The court of appeals affirmed. 790 S.W.2d 709. The court of appeals held that Cecil failed to preserve her points of error because she failed “to call the trial court’s attention to her timely filed motion for new trial....” 790 S.W.2d at 716 (emphasis in original). We reverse and remand this cause to the court of appeals.

Martha L. Wisdom (Decedent) died testate in 1985. Her will was admitted to probate and named Charles Madison Smith (Smith) independent executor and left the entire estate to Smith and Cecil. In 1988, Smith filed an application to recover possession of the proceeds of a certificate of deposit allegedly belonging to Decedent’s estate. Subsequently, Cecil and others filed suit against Smith seeking to remove him as independent executor and to set aside a deed executed by Decedent in favor of Smith. Both proceedings were transferred to the Henderson County Court At Law.

After a jury trial, judgment was rendered on the jury’s verdict in favor of Smith that the deed in question was valid, that Decedent delivered the deed to Smith prior to her death and that Decedent’s estate owned the certificate of deposit. Cecil timely filed a motion for new trial. Cecil’s motion for new trial asserted, among other things, the following: (1) the evidence was factually insufficient to support each finding; (2) the jury’s failure to find that Decedent did not deliver the deed to Smith was contrary to the overwhelming weight and preponderance of the evidence; (3) there was no evidence to support the findings; and (4) the contrary of each finding was established as a matter of law. The trial court did not hear or otherwise consider the amended motion for new trial and the motion was overruled by operation of law. The court of appeals concluded sua sponte that Cecil failed to preserve her points of error asserting that there was no evidence or factually insufficient evidence to support the jury’s findings. The court of appeals stated: “Our legal conclusion that Cecil’s points of error ... were not preserved for review rests upon Cecil’s failure to call the trial court’s attention to her timely filed motion for new trial that alleges those claimed errors.” 790 S.W.2d at 716 (emphasis in original).

Cecil argues that her motion for new trial which was overruled by operation of law preserves appellate complaints of no evidence and factual insufficiency of the evidence to support the jury’s findings. We agree.

A point in a motion for new trial is a prerequisite to complain on appeal that the evidence is factually insufficient to support a jury finding and that a jury finding is against the overwhelming weight of the evidence. Tex.R.Civ.P. 324(b)(2) and (3). See Tex.R.App.P. 52(d). “No evidence” 2 *511points may be raised by either (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. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985). Cecil’s no evidence points of error were raised only in her motion for new trial.

A motion for new trial must be filed prior to or within thirty days after the judgment is signed. Tex.R.Civ.P. 329b(a). One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment is signed. Tex.R. Civ.P. 329b(b). If an original or amended motion for new trial is not determined by written order signed within seventy-five days after the judgment was signed, it is overruled by operation of law. Tex.R. Civ.P. 329b(c).

In requiring Cecil to call the trial court’s attention to her motion for new trial, the court of appeals relied upon the “presentment requirement” in Rule 52(a) of the Texas Rules of Appellate Procedure and Moore v. Mauldin, 428 S.W.2d 808 (Tex.1968).3 Rule 52(a) states the general rule for preserving appellate complaints and provides in relevant part:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party’s request, objection or motion.

Tex.R.App.P. 52(a) (emphasis added).

While Rule 52(a) provides the general rule for preserving appellate complaints, Rule 52(d) specifically applies to preserving complaints in motions for new trial. Rule 52(d) provides that “[a] point in a motion for new trial is a prerequisite to appellate complaint in those instances provided in paragraph (b) of Rule 324 of the Texas Rules of Civil Procedure.”4 Rule 52(d) expressly applies when Rule 324(b) requires error to be preserved in a motion for new trial. When Rule 324(b) requires a motion for new trial to preserve error, the complaining party is required only to comply with the filing requirements in Rule 329b to preserve the points of error.5 See gen*512erally Riley v. Meriwether, 780 S.W.2d 919, 922 (Tex.App.-El Paso 1989, no writ); Metot v. Danielson, 780 S.W.2d 283, 286 (Tex.App.-Tyler 1989, writ denied); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 852 (Tex.App.-Houston [1st Dist] 1987, writ ref’d n.r.e.), cert dismissed, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988).

Factual insufficiency points of error are expressly required by Rule 324(b) to be raised in a motion for new trial. Therefore, we hold that Cecil’s motion for new trial points complaining that the evidence was factually insufficient are preserved for appellate review by her compliance with the filing requirements of Rule 329b and the subsequent overruling of the motion for new trial by operation of law. See Riley v. Meriwether, 780 S.W.2d at 922; Metot v. Danielson, 780 S.W.2d at 286.

Concerning Cecil’s no evidence points of error, Rule 324 does not require no evidence points of error to be raised in a motion for new trial to preserve the complaint for appeal. However, no evidence complaints may be raised in a motion for new trial. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d at 822. In this case, Cecil’s no evidence points of error were raised only in her motion for new trial. Although Rule 52(d) only specifically refers to Rule 324(b) error preservable by motion for new trial, we see no reason to distinguish between error specifically preservable by motion for new trial in Rule 324(b) and other error preservable by motion for new trial. Requiring compliance with Rule 52(a) in addition to Rule 329b’s filing requirement would unnecessarily resurrect the “presentment” requirement which this court eliminated in 1981 to motions for new trial. Tex.R.Civ.P. 329b comment (Vernon Supp.1990). Furthermore, requiring the additional compliance with Rule 52(a) would undermine our goal of judicial economy by creating needless expense and delay. See Cheme Industries, Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989). Consequently, we hold that no evidence complaints are preserved for appellate review if Rule 329b’s filing requirements for motions for new trial are met.6 See Riley v. Meriwether, 780 S.W.2d at 922; Metot v. Danielson, 780 S.W.2d at 286.

The court of appeals did not consider Cecil’s points of error asserting that the evidence was legally and factually insufficient to support the jury findings. Because the unaddressed points of error include attacks on the sufficiency of the evidence, we remand the cause to the court of appeals for consideration of the previously unaddressed points. See Coulson & CAE, Inc. v. Lake LBJ Municipal Utility District, 734 S.W.2d 649, 652 (Tex.1987).

Accordingly, we reverse and remand the cause to the court of appeals.

CORNYN, J., dissents.

. It is undisputed that Cecil timely filed her original and amended motions for new trial and that the amended motion was overruled by operation of law. Cecil’s amended motion for new trial became the operative motion. See Hill v. Reynolds Trust, 137 S.W.2d 195, 195-96 (Tex.Civ.App.-Fort Worth 1940, no writ). However, for the sake of clarity, the amended motion for new trial will hereinafter be referred to as the "motion for new trial”.

. No evidence points of error may only be sustained when the record discloses (1) a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, and (4) the evidence established conclusively the opposite of the vital fact. See Calvert, “No Evidence" and “Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361, 362-63 (1960). Cecil’s points that (1) there was no evidence to support the findings and (2) the contrary of each finding was established as a matter of law will hereinafter collectively be referred to as her "no evidence” points.

.Moore v. Mauldin was based upon an earlier version of Rule 329b which placed a duty on the "proponent of an original or amended motion for new trial to present the same to the court_" Moore v. Mauldin, 428 S.W.2d at 809 (quoting Tex.R.Civ.P. 329b § 4). Despite the rule’s language, this court held that Rule 329b did not require a formal presentation and hearing on the motion. Id. at 809. This court interpreted Rule 329b’s "present” to mean "no more than that the movant must call the motion to the court’s attention and ask for a ruling upon the same or face the possibility that the court will not act and allow the motion to be overruled by operation of law.” Id However, the "presentment" requirement was eliminated when Rule 329b was amended in 1981. Tex.R. Civ.P. 329b comment (Vernon Supp.1990). See Barrow, Appellate Procedure Reform, 12 St. Mary’s LJ. 615, 619 (1981); Guittard, Other Significant Changes in the Appellate Rules, 12 St. Mary’s LJ. 667, 675 (1981); Pope & McConnico, Practicing Law with the 1981 Texas Rules, 32 Baylor L.Rev. 457, 497 (1980). Thus, the 1981 amendments to Rule 329b eliminated that Rule’s former requirement that a movant call a motion for new trial to the trial court’s attention.

. Rule 52(d) was amended effective September 1, 1990. See infra note 6.

. We note that “when a motion [for new trial] presents a question of fact upon which evidence must be heard, the trial court is obligated to hear such evidence when the Motion for New Trial alleges facts, which if true, would entitle the movant to a new trial and when a hearing for such purpose is properly requested.” Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex.1979). See Parham v. Wilbon, 746 S.W.2d 347, 351 (Tex.App.-Fort Worth 1988, no writ); Van Der Veken v. Joffrion, 740 S.W.2d 28, 30 (Tex.App.-Texarkana 1987, no writ); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 850 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert dismissed, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988); Adams v. Kendall County Appraisal District, 724 S.W.2d 871, 876 (Tex.App.-San Antonio 1986, no writ); Tex.R.Civ.P. 327. The points in Cecil’s motion for new trial did not present a complaint on which evidence must be heard.

. Rule 52(d) was amended effective September 1, 1990. As amended, Rule 52(d) provides:

A point in a motion for new trial is prerequisite to appellate complaint in those instances provided in Rule 324(b) of the Texas Rules of Civil Procedure. A party desiring to complain on appeal in a nonjury case that the evidence was legally or factually insufficient to support a finding of fact, that a finding of fact was established as a matter of law or was against the overwhelming weight of the evidence, or of the inadequacy or excessiveness of the damages found by the court shall not be required to comply with paragraph (a) of this rule.

This provision was intended to clarify and not change appellate requisites for nonjury trials. See Tex.R.App.P. 52 comment to 1990 change. The amendment does not implicitly add the requirement that factual insufficiency or no evidence points of error raised in motions for new trial in jury cases must also satisfy Rule 52(a).