concurring.
Appellee, First Bank and Trust of Groves, Texas, obtained the relief prayed for by a “Final Judgment” signed April 8, 1987. The “Final Judgment” provided that Appellee recover from the Appellant, First National Indemnity Company, reasonable attorney’s fees for services rendered by the bank’s attorney in the preparation and trial of the case in the amount of $7,649.63. The court awarded this reasonable attorney’s fee even though the jury, in answer to a special issue had answered, “None.”
The bank had filed a motion for judgment urging that the jury’s answer of “None” was against the great weight and preponderance of the evidence. In a separate paragraph, in said Motion for Judgment, the bank moved the court, pursuant to TEX.R.CIV.P. 301, to disregard the jury’s answer on the attorney’s fees and render judgment in favor of the bank in the amount of $7,680.53. Since the “Final Judgment” of the trial court awarded to the bank virtually everything that it asked for in its Motion for Judgment, it would be unreasonable and illogical to require the bank to file a motion for new trial.
Where, as here, the judgment, as to the attorney’s fees, was not based upon the verdict of the jury and the Appellee pre*409vailed below, then that Appellee may urge as a reply point or a cross-point involving a ruling upon such Motion for Judgment as is before us without the necessity of filing a motion for new trial. See Motsenbocker v. Wyatt, 369 S.W.2d 319 (Tex.1963).
Under the record in this case, with the Appellee bank recovering virtually everything it asked for, with the exception of a few dollars ($30.90), it certainly would have been a futile and self-defeating and counter-productive thing to require the bank to file a motion for new trial.
TEX.R.CIV.P. 324(c) provides, in substance, that when a judgment is rendered non obstante veredicto, or notwithstanding the findings of a jury on one or more questions, an Appellee may bring forth in his brief, filed in the Court of Appeals, any ground or grounds which would have vitiated the verdict or would have prevented an affirmance of the judgment below had the said judgment been signed and rendered by the trial court in harmony with the jury’s verdict. It is true that TEX.R.CIV.P. 324(c) refers to a cross-point. Although the bank’s point of error, concerning the attorney’s fees question, is labeled as reply point, a fair reading of the same indicates that it is both a reply point and a cross-point. Hence, I hold that this point has not been waived. Indeed, reply points advanced by the Appellee can and do answer the points of error brought forward by the Appellant or they may and can provide independent grounds for the affirmance of the judgment.
Indeed, TEX.R.APP.P. 74(d) delineates a point of error and TEX.R.APP.P. 74(e) states that the brief of the Appellee shall reply to the points relied upon by the Appellant in due order when practicable.
Cross-points are usually the means by which an Appellee may bring forward complaints of some ruling, order or action of the trial court which the Appellee argues constituted error as to the said Appellee. Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex.1967). In Jackson, supra, the court wrote:
‘“Cross-points’ are really ‘points’ which are used to preserve error committed by the trial court. They are the means by which an appellee may bring forward complaints of some ruling or action of the trial court which the appellee alleges constituted error as to him....”
In this appeal, the Appellee bank is not complaining of the ruling or the action of the trial court in awarding the attorney’s fees. Hence, a cross-point will not be appropriate or, at least, not as appropriate as a reply point considering the appellate posture of the bank. Furthermore, I think this matter of the necessity of labeling a point a cross-point was settled in Houston First American Savings v. Musick, 650 S.W.2d 764 (Tex.1983), wherein the Supreme Court wrote, at page 770, as follows:
“In Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex.1967) we explained that ‘cross-points’ are used to preserve error committed by the trial court and ‘are the means by which an appellee may bring forward complaints of some' ruling or action of the trial court which the appel-lee alleges constituted error as to him.’ The judgment non obstante veredicto rendered by the trial court is exactly the judgment requested by American. In fact, the trial court judgment incorporates by reference American’s entire motion for judgment non obstante veredicto. Hence, it was unnecessary for American to file cross-points, because American had no complaint with the judgment of the trial court.” (Emphasis added)
In this appeal, Appellee bank had no complaint with the judgment of the trial court.
In an appeal, where there are only two parties, one Appellant and one Appellee, the reply points should suffice and be completely efficacious. That is the spirit of the liberal rules of briefing.
This point on appeal concerns a non-finding or a “failure to find” in a jury’s verdict. In the past, there has been a lively dispute or disagreement as to whether a court of appeals, such as we are, has the authority or constitutional grant of power to remand a cause of action or a particular issue or question for a new trial when a court of appeals decides that a jury’s failure to find *410in favor of a litigant below on a particular issue or question is actually “against the great weight and preponderance of the evidence." This proposition is, indeed, quite hotly debated even today in advanced appellate practice courses or seminars.
Nonetheless, as an intermediate appellate court, we are definitely constrained to follow and adhere to the last and very current pronouncement on the matter delivered by the Supreme Court of Texas. Therefore, we are bound to follow Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646 (1988). The majority opinion, in Cropper, supra, in part, at page 647, reads:
“[W]e decide whether a court of appeals has the authority to remand a cause for a new trial when it concludes that a jury’s failure to find in favor of a party on a particular issue is ‘against the great weight and preponderance of the evidence.’ We hold that a court of appeals has the authority to review a ‘failure to find’ in the same manner in which it may review a jury’s findings. TEX. CONST., art. V, Sec. 6. We further hold that this review does not violate the right of trial by jury. TEX. CONST., ART. I, Sec. 15.’’
Thus, I specially concur with the Court’s opinion and I respectfully dissent from the dissent.