stating that intentional ratification may be shown by party’s acceptance of benefits under agreement, after becoming fully aware of fraud
How later courts described this case
- stating that intentional ratification may be shown by party’s acceptance of benefits under agreement, after becoming fully aware of fraud
- recruiting police officers is proprietary
Written by the judges who cited it.
The opinion
OPINION ON MOTION FOR REHEARING
In this appeal, we affirmed the trial court’s granting of judgment notwithstanding the verdict in favor of Appellee. The Appellants assert, inter alia, that affirming the trial court’s judgment, on the basis that the Appellee had established an affirmative defense as a matter of law, was error because *686 the Appellee waived that defense by failing to submit it to the jury. We disagree.
The Appellants submitted two theories of recovery to the jury: breach of contract and negligent misrepresentation. The City’s affirmative defense of waiver was submitted to the jury as a conditional issue to the question of breach of contract but not to the question of negligent misrepresentation. The jury found that the City did not breach the contract but it was guilty of negligent misrepresentation. As a result, there is no jury finding as to Appellants’ affirmative defense of waiver or ratification.
The Appellants argue that the Appellee, by failing to submit the waiver or ratification defense to the jury with the predicate issue of negligent misrepresentation, waived that defense. Oil Country Specialists, Ltd. v. Philipp Bros., Inc., 762 S.W.2d 170, 176 (Tex. App.-Houston [1st Dist.] 1988, writ denied). This argument would be persuasive but for the fact that we are reviewing a judgment n.o.v.
A motion for judgment n.o.v. is based upon the same grounds that have been or could have been urged in a motion for directed verdict and is sustainable on appeal only if a directed verdict would have been proper. Tex.R.Civ.P. 301; Dodd v. Texas Farm Prods. Co., 576 S.W.2d 812, 815 (Tex.1979); Monk v. Dallas Brake & Clutch Serv. Co., Inc., 697 S.W.2d 780, 783 (Tex.App.-Dallas 1985, writ refd n.r.e.). If the evidence is legally insufficient to support the jury verdict, a judgment n.o.v. is proper to set aside the verdict. The trial court must determine that the evidence conclusively demonstrates that no other verdict could be reached. By-waters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985).
The Appellee’s motion for judgment n.o.v. is not in the record and the trial court did not specify its reasons for granting judgment n.o.v. However, we presume, and Appellants have not argued otherwise, that the Appel-lee’s motion was based upon a legal sufficiency or as a matter of law, challenge to the jury’s verdict.
Legal sufficiency, no evidence, or as a matter of law complaints are preserved at each of the following stages: (1) objection to the submission or failure to submit a pertinent jury charge; (2) motion for directed verdict; (3) motion to disregard the answers to a jury question; or (4) motion for judgment n.o.v. Cecil v. Smith, 804 S.W.2d 509 , 512-13 n.1 (Tex.1991) (dissent); Aero Energy, Inc. v. Circle C Drilling, 699 S.W.2d 821, 822 (Tex.1985).
Accordingly, we find that the Appellee did not waive its affirmative defense and, without further discussion of Appellants’ other points, overrule their motion.