Alzo Preyear, Sr. v. Advanced Platinum Solutions, Inc.
01-15-00252-CV
| Tex. App. | Dec 15, 2015Background
- Appellant Alzo Preyear, Sr. filed a reply brief in a civil appeal from the 281st Judicial District Court of Harris County, Texas, seeking reversal or remand with a new trial.
- Appellees are Kumar Kandasamy and Advanced Platinum Solutions, Inc.; Kandasamy did not file an appellee brief or seek an extension.
- Appellant asks the appellate court to accept the factual statements in his brief as true under Tex. R. App. P. 38.1(g) because the appellee failed to file a brief.
- Appellant contends he provided adequate record citations and did not waive his complaint that the jury verdict (or take‑nothing judgment) was against the great weight and preponderance of the evidence.
- Appellant argues the appellee incorrectly defined the standard of review for a "great weight" sufficiency challenge and reiterates the proper standard: the court must weigh all relevant evidence and may set aside a verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
- Relief requested: reversal and rendition for Appellant or, alternatively, reversal and remand for new trial.
Issues
| Issue | Plaintiff's Argument (Preyear) | Defendant's Argument (Kandasamy / APS) | Held (in this reply brief) |
|---|---|---|---|
| Whether appellee's failure to file a brief permits the court to accept appellant's factual statements as true | Because Kandasamy did not file a brief, the court may accept appellant's factual statements under Tex. R. App. P. 38.1(g) and relevant authority | No appellee brief filed (no opposing argument made) | Not decided by court in this document; appellant requests the court accept his facts as true and grant relief |
| Whether appellant waived the "great weight and preponderance" sufficiency complaint by inadequate record citation | Appellant asserts he provided sufficient record references on pages 3–6 of his opening brief and did not waive the issue | Appellee argued waiver (per appellant characterizing appellee's response) | Not decided here; appellant urges the court to consider the point on merits |
| Proper standard of review for a "great weight and preponderance of the evidence" challenge | Appellant states the court must weigh all evidence for and against the challenged finding and may set aside a verdict only if it is against the overwhelming weight of the evidence (Cain standard) | Appellee allegedly misstates the standard (per appellant) | Not decided here; appellant urges application of Cain/In re King's Estate standard |
| Appropriate relief if verdict is against great weight of evidence | Appellant asks for judgment rendered in his favor or, alternatively, reversal and remand for new trial | Appellee has not provided opposing briefing on relief | Not decided here; appellant requests reversal and rendition or reversal and new trial |
Key Cases Cited
- Bandy v. First State Bank, 835 S.W.2d 609 (Tex. 1992) (accepting appellant factual assertions when appellee does not brief)
- Fredonia State Bank v. General American Life Ins. Co., 881 S.W.2d 279 (Tex. 1994) (same)
- Owens-Corning Fiberglass Corp. v. Schmidt, 935 S.W.2d 520 (Tex. App.—Beaumont 1996) (same principle applied at appeals level)
- Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (standard for setting aside verdict as contrary to overwhelming weight of evidence)
- In re King’s Estate, 244 S.W.2d 660 (Tex. 1951) (foundational authority on weighing evidence and setting aside jury findings)
- Preston State Bank v. Jordan, 692 S.W.2d 740 (Tex. App.—Fort Worth 1985) (standard of review for take‑nothing judgments mirrors instructed verdict review)
- Kennard v. McCray, 648 S.W.2d 743 (Tex. App.—Tyler 1983) (waiver discussion)
- National Union Fire Ins. Co. of Pittsburgh v. Janes, 687 S.W.2d 822 (Tex. App.—El Paso 1985) (discussion of weighing all evidence on great‑weight point)
- Bobbitt v. Womble, 708 S.W.2d 558 (Tex. App.—Houston [1st Dist.] 1986) (waiver and briefing adequacy)