Dupree v. Piggly Wiggly Shop Rite Foods, Inc.

OPINION ON MOTION FOR REHEARING

Appellee Piggly Wiggly Shop Rite Foods, Inc. in its fourth and fifth assignments of error in its motion for rehearing complains that this Court erred in considering appellant’s second point of error and rendering judgment thereon because said alleged error by the trial court was not properly perfected for consideration by this Court.

Before an appellant is entitled to rendition by a Court of Civil Appeals, he must first present the error to the trial court in the form of a proper motion to allow the trial court to correct its error. In order to preserve the right to rendition of judgment, the proper predicate must be made by one or more prejudgment motions or objections. A motion to disregard a jury finding under Rule 301, T.R.C.P. is one way to preserve such a point of error as we have before us. See Calvert, No Evidence and Insufficient Evidence, 38 T.L.R. 359 (1900).

It is Piggly Wiggly’s contention that neither appellant’s motion for judgment or renewed motion for judgment are sufficient to provide the necessary predicate for rendition of judgment. The objective of the rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To this end; the rules shall be given a liberal construction. Rule 1, Objective of Rules, T.R.C.P.

If the motion for judgment was sufficient to call the trial court’s attention to the question raised and was sufficient to direct the court’s attention to the matter complained of, the appellate court can rule on the point of error where the substance of the error complained of can be determined. Compare Fambrough v. Wagley, 140 Tex. 577 , 169 S.W.2d 478 (Tex.Sup.1943). We hold that the appellant’s motion for judgment was sufficient to disregard certain jury findings and for the trial court to have rendered judgment for the plaintiff and against Piggly Wiggly. In Myers v. Crenshaw, 134 Tex. 500 , 137 S.W.2d 7 (Tex. Comm’n App.1940, opinion adopted), the court said that the substance of a motion is not to be disregarded because of an imperfection in form.

There are three (3) necessary elements which must be included in a motion to disregard findings. The motion must: 1) designate the finding and/or findings which the court is called upon to disregard; 2) specify the reason why the finding or findings should be disregarded; 3) contain a request that judgment be entered upon the remaining findings after the specific findings have been set aside or disregarded. Hines v. Parks, 128 Tex. 289 , 96 S.W.2d 970 (Tex.Comm’n App.—1936, opinion adopted); Employers Mutual Casualty Company v. Poorman, 428 S.W.2d 698 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.).

In light of this test, we examined appellant’s renewed motions for judgment and determined that they were sufficient to direct the trial court’s attention and our attention to the matter complained of, i. e., to disregard certain jury findings. The renewed motion for judgment clearly sets out the reason the findings should be disregarded. The appellant contended that the findings were against the law as it concerned this case. The motion contained a request that judgment be entered in appellant’s favor based on the remaining findings. Therefore, the second and third elements of the motion were clearly present. The only real question concerns the first element that the motion designate the findings to be disregarded. Appellant’s renewed motion for judgment requests the trial court to grant judgment against Piggly Wiggly based on the jury answers to Special Issue Numbers 1, 2, 3, 13, 14, and 15. In effect, to disregard all the rest of the findings.

*893 This is similar to the fact situation in Myers v. Crenshaw, supra. In the Myers case, the motion in question asked the court to disregard all or any special issues except No. 10. The appellant in the Myers case was contending that this motion was insufficient under Art. 2211 (now Rule 301) for the court to set aside Special Issue Number 9 because said issue was not specifically designated to be set aside in the motion. The court rejected the appellant’s contention and held that the motion was sufficient for the trial court to set aside all issues except No. 10. This same effect was given by us to the appellant’s renewed motion for judgment in the case at bar. By asking the court to render judgment based on Special Issues 1, 2, 3, 13, 14 and 15, the appellant, rather unartfully but still effectively, requested that the trial court disregard the remaining issues.

The appellant’s point of error that the trial court erred in failing to enter judgment for appellant based on the verdict as a matter of law, was a properly perfected point of error and as such, with the argument under the point and the appel-lee’s answer to such argument, empowered this Court to render that judgment which the trial court should have entered. Rule 434, T.R.C.P. Martin v. Commercial Standard Fire and Marine Insurance Company, 505 S.W.2d 799 (Tex.Sup.1974); Perez v. Los Fresnos State Bank, 512 S.W.2d 796 (Tex.Civ.App.—Corpus Christi 1974, no writ); Yanowski v. Fort Worth Transit Co., 204 S.W.2d 1001 (Tex.Civ.App.—Fort Worth 1947, writ ref’d n.r.e.); Lehrer v. Wegenhoft, 203 S.W.2d 245 (Tex.Civ.App.—Galveston 1947, writ ref’d n.r.e.); Comer v. Brown, 285 S.W. 307 (Tex.Comm’n App.— 1926, jdgmt. adopted).

We have carefully reconsidered all of ap-pellee’s points on rehearing. Its motion for rehearing is OVERRULED.