stating that evidence regarding prejudgment interest must be presented prior to the expiration of plenary power
How later courts described this case
- stating that evidence regarding prejudgment interest must be presented prior to the expiration of plenary power
- “[B]oth the party seeking prejudgment interest and the party seeking to toll it must provide the court with evidence competent ... to establish the proper amount of the award.”
- “Rule 74(f) of the Texas Rules of Appellate Procedure provides that ‘[a]ny statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party.’”
Written by the judges who cited it.
The opinion
DISSENTING OPINION FOLLOWING OVERRULING OF MOTION FOR HEARING EN BANC
MIRABAL, Justice,
dissenting.
I dissent from the opinion of the three-judge panel that was assigned to this casé. 1 The majority opinion states:
Defendants failed, however, to provide competent evidence to establish the fact that prejudgment interest was tolled. There are no stipulations or affidavits in the record, and there was no post judgment hearing to adduce evidence on the proper amount of prejudgment interest.
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Proper practice requires that the factual requisites of section 5069-1.05 be established by some form of competence evidence in the record.
Having said that, the majority still holds the trial court erred when it rendered its judgment that states in part:
IT IS FURTHER ORDERED that Defendants are not entitled to offsets of prejudgment interest pursuant to V.T.C.A. Article 5069-1.05, § 6(b) AND 6(c), as Defendants waived their rights to the offset by not pleading same in preceding pleadings, and no evidence was introduced in the record_ (Italicized portion represents hand printed insert into judgment).
The majority bases its conclusion that the trial court erred on the following statement in appellant’s brief: “On April 29, 1991, more than one year before trial, Defendants offered, in writing, the sum of $14,000 to Plaintiff in settlement of her claim for damages.” It is true that plaintiff, in her appellee’s brief and during argument, did not deny the truth of this statement. However, plaintiff argued both in the trial court, and throughout her brief on appeal, that defendants failed to prove in the trial court that a pretrial settlement offer had been made. Plaintiff specifically challenged defendants’ statement of the evidence by pointing out the lack of any evidence in the trial court of a settlement offer.
■ In my opinion, the majority has improperly applied Tex.R.App.P. 74(f) to allow an appellant to prove a material fact for the first time on appeal, in the face of a specific complaint by the appellee that the appellant failed to meet its burden of proof in the trial court, and in the face of a specific finding by the trial court that “no evidence was introduced in the record.”
I cannot agree that we can properly reverse a trial court’s judgment that, everyone agrees, was correct because of the absence of evidence in the record at the time of the trial court’s ruling, just because on appeal, the losing party for the first time presents us with a statement of the missing, relevant evidence, especially when the appellee specifically points out to us that the appellant failed to prove the matter in the trial court.
I would overrule the sole point of error and affirm the trial court’s judgment.
. In accordance with Tex.R.App.P. 79(e) and 90(e), a request was made for an en banc consideration of the case. The request was denied by a majority of the en banc court. I dissent from that vote and from the opinion in the case.