concurring and dissenting.
I concur in the majority’s analysis regarding special issue number 3, the dam*366ages issue, but express no opinion (neither attacking nor concurring) on the other issues. I respectfully dissent to the severance and partial remand under TEX.R. APP.P. 81. The majority only states that part of the rule justifying the severance, i.e., "... and if it appears to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error....” The rule goes on to say, however, "... provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested.” There can be little argument that the damages are unliquidated. In other words, they cannot be determined from any instrument and there are actual factual disputes regarding the calculation of the damages. There can be no argument that the liability issues were contested, hence, under the current rule 81 and its predecessor, TEX.R.CTV.P. 434, there cannot, in my view, be a partial remand. Little Darling Corp. v. Aid, Inc., 566 S.W.2d 347, 350 (Tex.Civ.App.—Dallas 1978, no writ). Because there was error in the damage issue, I would reverse and remand without reaching the other issues. Inasmuch as the majority affirms in part and orders a partial remand, I respectfully dissent.