concurring.
I concur in the result reached by the Court, and I agree that the statute of frauds precludes Margie’s recovery against Frank. However, I disagree with the holding that Margie failed to preserve error regarding the judgment n. o. v. in favor of her former attorney, Allen Isbell.
Margie sued Isbell for his failure to reduce to writing Frank’s agreement to convey his interest in the house. Her malpractice cause of action was an alternative ground of recovery which was contingent on her failure to recover against Frank. After awarding Margie damages against Frank, the trial court disregarded the jury’s findings of negligence and proximate cause *802against Isbell. Margie appealed this action to the court of appeals, but that court expressly did not consider the assignment of error because it sustained Margie’s recovery against Frank.
Frank filed an application for writ of error in this Court. In her reply, Margie filed a cross-point requesting this Court to remand the cause to the court of appeals for consideration of her appeal against Is-bell if we reverse the lower courts’ judgments against Frank. Isbell was served with copies of Frank’s writ of error application and Margie’s reply, and he filed a brief responding to Margie’s cross-point against him. All parties appeared for arguments.
The Court’s holding is that Margie was required to file a motion for rehearing in the court of appeals, and by implication, an application for writ of error to this Court, complaining of the court of appeals’ failure to consider and sustain her assignment concerning an alternative ground of recovery. I do not believe the Rules of Civil Procedure, or prior case law, require the prevailing party at the court of appeals to file either a motion for rehearing or an application for writ of error when she has obtained the full relief to which she was entitled.
A party may file an application for writ of error only when she has been denied some form of relief by the judgment of the court of appeals. Clearly, Margie was not entitled to complain of the court of appeals’ judgment, in the absence of an appeal by Frank, because she was not “aggrieved” by that judgment. In re Johnson, 569 S.W.2d 882 (Tex.1978); Trad v. General Crude Oil Co., 474 S.W.2d 183 (Tex.1971). The rule has been stated that “[o]ne who has obtained the utmost relief which he seeks from a court of civil appeals cannot show ‘good cause’ for review on application, regardless of how erroneous some of the lower court holdings may be.” Hatchell & Calvert, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303, 309 (1974). Margie pleaded no right of recovery against Isbell unless she was denied recovery against Frank. Because the court of appeals sustained the trial court’s judgment in favor of Margie against Frank, it was not required to and did not pass on Margie’s assignment against Isbell. Thus, the court’s failure to consider and sustain Margie’s contingent assignment was not error, see McKelvy v. Barber, 381 S.W.2d 59, 64 (Tex.1964), and such action could not form the basis for a point of error in an application to this Court.
This result is consistent with the rules1 concerning motions for rehearing. A motion for rehearing is required only if a point of error is required. See Rule 469(e). Rule 458(a) provides for a motion for rehearing only of any matter “determined” by the court of appeals. The court of appeals made no determination of Margie’s assignment against Isbell, and its failure to make a determination could not be assigned as error until its original holding, sustaining Margie’s recovery against Frank, was determined to be erroneous. Surely, no rule requires Margie to seek a reversal of a holding by the court in her favor after she had argued to the court for that very result.2
The procedural problem in this case is one of first impression. The difficulty is not that Margie has presented two independent grounds of recovery, one being conditioned on a denial of the other, but that the grounds of recovery are asserted against different defendants in the alternative. If both causes of action were asserted against the same defendant, and the court of appeals had sustained the trial court’s judgment on the first ground only, this Court, *803upon determining the lower court erred in basing its judgment on the first ground, is authorized to consider the undecided points urged in the court of appeals concerning the second ground of recovery. The plaintiff in such a situation is not even required to assign a separate cross-point in this Court in order to obtain review of the undecided issues. E.g., Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). Unquestionably, a motion for rehearing and a writ of error application are not required to preserve error. Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123 (1936).
In the “familiar" situation described above, the undecided assignments at the court of appeals are considered by this Court to determine if there are grounds to uphold the judgment of the court of appeals. When the grounds of recovery are against different defendants, however, sustaining the undecided assignment and awarding recovery against a different defendant requires a reversal or modification of the lower court’s judgment, even though the plaintiff prevails in both judgments. Nevertheless, this Court has held that the party prevailing in the court of appeals is entitled to have his assignments which were properly presented there, but not passed on by that court, considered by the Supreme Court “in so far as necessary to determine what judgment should have been rendered” by the court of appeals. McKelvy v. Barber, 381 S.W.2d 59, 64 (Tex.1964); Holland v. Nimitz, 111 Tex. 419, 239 S.W. 185, 188 (1922).
Margie prevailed in the court of appeals, even though the judgment of that court denied her recovery against Isbell. That court did not decide the merits of her assignments against Isbell because they were rendered immaterial under its original holding. She is entitled to have those points considered when this Court reverses the lower court’s holding. Even if Margie were to be viewed as the “losing party” with respect to the recovery against Isbell, she is still entitled to have this Court review the undecided assignments without the necessity of an application for writ of error. This was the holding of McKelvy v. Barber, where the briefs of the losing party at the court of civil appeals were used to bring forward an undecided issue which required us to reverse the judgment of the lower court. 381 S.W.2d 59 (Tex.1964). Even though the plaintiff in McKelvy had been denied all relief by the court of appeals, we rejected the suggestion that a motion for rehearing and a point of error were required of the losing party in order to preserve error on his undecided point. In doing so, we stated:
A careful and seasoned appellate practitioner would have included in his application for writ of error a point asserting that the Court of Civil Appeals erred in failing to consider and sustain the points of error dealing with negligence and causation. Respondent says, in effect, that the failure to do so here requires us to affirm the judgment of the trial court no matter how erroneous it may be. That approach might save the Supreme Court some time, but it is also calculated to entrap the inexperienced appellate advocate. The attack in this Court is upon the judgment of the Court of Civil Appeals. That judgment rests squarely upon a single holding, which has been brought forward for review. When it is determined, as we have in this instance, that the conclusion reached by the intermediate court is unsound, it would certainly be proper to remand the cause to that court for a ruling on the points of error not previously considered by it... .
381 S.W.2d at 65.
By filing a cross-point in this Court, Margie has done more than we have previously required of the prevailing party in the court of appeals. This Court clearly has jurisdiction to consider the matter raised in her cross-point. It has been suggested, however, that a motion for rehearing and a point of error were technical requirements necessary to give the Court jurisdiction over Isbell.
*804This Court has no separate concept of personal jurisdiction; its jurisdiction includes all questions of law properly presented to it. All parties in a cause before the court of appeals are parties to the same cause in the Supreme Court if they are affected by a matter before this Court. In contrast to the appellate rules for the courts of appeals, this Court has no provisions for limited appeals, see Rule 353, or jurisdictional requirements for appeal bonds or notice of appeal, see Rules 354r-56, by which a party in the lower court may be expressly excluded from an appeal. Even the requirement for service on the respondent of an application filed in this Court, found in Rule 471, has been held to be directory rather than jurisdictional. Martin v. Granger, 205 S.W. 725 (Tex.1918). Since Isbell was properly served, and since he filed a brief and appeared for arguments in this Court, there is no injustice in reaching the points of law3 asserted against him to determine what judgment should have been rendered by the court of appeals. Moreover, I believe this Court is required to do so.
I concur in the result reached by the majority, however, because I would overrule Margie’s assignments on the basis that there was no evidence to support the jury’s finding of negligence against Isbell. Accordingly, I would render judgment that Margie take nothing from either defendant.
. All rules referred to are the Texas Rules of Civil Procedure.
. Of course, if the court had granted Frank’s motion for rehearing and rendered a new judgment denying Margie recovery against either defendant, Margie would then be required to file a “second” motion for rehearing complaining of the court’s action on rehearing. Rule 458(b); Oil Field Hauler’s Ass’n v. Railroad Comm’n, 381 S.W.2d 183 (Tex.1964).
. Margie’s cross-point in this Court requests a ■ remand to the court of appeals. However, the undecided assignments concern only questions of law, and they may be properly determined by this Court without the necessity of a remand.