Logan v. Mullis

KILGARLIN, Justice,

dissenting.

Because the determinative legal question discussed in the majority opinion was not briefed or argued by the parties either before this court or the court of appeals, I respectfully dissent.

A basis for understanding the error made by the majority of the court lies in the case’s procedural history. The Mullises brought suit for damages they incurred due to Logan’s destruction of the culvert. The jury answered damage issues in favor of the Mullises, but did not answer liability issues since none were submitted to the jury. The trial court initially rendered judgment in favor of the Mullises. Following several motions by Logan, including motions for new trial, a motion for judgment n.o.v. and motions to vacate the judgment, the trial court set aside the first judgment and rendered a second judgment for Logan. The trial court substituted this second judgment within the time period that it had plenary power.

The court of appeals reversed, holding that liability was a deemed finding under Tex.R.Civ.P. 279 as consistent with the trial court’s first judgment. It held that the trial court had no power to vacate the first judgment, even though the trial court had plenary power. Written findings made by the trial judge to support the second judgment were likewise held to be improper under the theory that Rule 279 requires such findings to be made by the trial court prior to judgment. The court of appeals interpreted the word “judgment” in Rule 279 to mean the first initial judgment, not the final judgment rendered by the trial court. Throughout its opinion the court of appeals treated the question before it as a deemed fact finding under Rule 279. Writ of error was granted by this court solely on the issue of whether or not the court of appeals’ procedural analysis was correct.

Today the majority decides that Logan’s culvert was permanently attached to the realty as a matter of law (emphasis added). Although I do not quarrel with the majority’s conclusion, I do dispute their procedural power to reach such a question. Neither Logan nor the Mullises briefed or argued this legal question to the court of appeals. There is nothing in the court of appeals opinion remotely suggesting that this issue was before that court. Neither party argued or briefed this question in this court.

Indeed, the Mullises, receivers of the majority’s benevolence, argued both before us and the court of appeals that determination of the culvert’s character was a question of fact. It should be noted that the Mullises did attack in the court of appeals the second trial court judgment on the grounds that there was no evidence to support the court’s fact findings. However, the Mullis-es did not ask the court of appeals or this court to find as a matter of law that the culvert is a fixture. Moreover, their only no evidence argument remotely contending the culvert was a fixture was one directed *610toward Logan’s intent, which, as the majority observes, is but one of three necessary factors. Thus, the Mullises prevail on an argument never made. The irony of the majority’s reasoning is underscored by the fact that the Mullises proceeded under assumptions opposite to the majority’s conclusion.

The law in Texas is clear that grounds of error not asserted by points of error or argument before the appellate courts are waived. Gulf Coast State Bank v. Emenhiser, 562 S.W.2d 449, 452-53 (Tex.1978). Points not argued or briefed are questions that the court of appeals has no power or authority to decide. Bickler v. Bickler, 403 S.W.2d 354, 361 (Tex.1966). Accordingly, this court has jurisdiction only over those issues that are properly before it. Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (Tex.1948). A question of law not argued by either party and not found in the court of appeals opinion is outside this court’s power and authority to decide legal questions.

These procedural rules not only incorporate basic jurisdictional concepts but also provide important constitutional safeguards. Due process assures not only an opportunity to present one’s position but also an opportunity to respond to issues raised by one’s opponent. When a case is decided on an issue never raised or anticipated, that opportunity is denied. Justice Frankfurter once noted that “the history of liberty has largely been the history of observing procedural safeguards.” McNabb v. U.S., 318 U.S. 332, 347, 63 S.Ct. 608, 616, 87 L.Ed. 819 (1943). Because I would decide the case only on the issues properly before the court, I dissent.

RAY, J., joins in this dissenting opinion.