*1 602 Metropolitan
Inc. v. Nat’l Bank —Farm tent opinion. with this In all other re- Branch, 598, (Tex. ers spects, 783 S.W.2d judgment is affirmed. 1989, writ); Quemer —Dallas Lines, Truck Indus., Inc. v. Alta Verde Inc., 464, 747 S.W.2d (Tex.App.— 468-69 1988, writ)
San Antonio (summary judg
ment on proper despite fees controverting
affidavit because affiant was not an attor
ney and affidavit did not show affiant competent give opinion testimony MARINE, SIPCO SERVICES INC. fees); attorneys’ about Sunbelt Const. Services, Inc., F/K/A Corp., Inc. v. DS & Mechanical Contrac Appellant, v. tors, Inc., 415, (Tex.App.—
Corpus n.r.e.); Christi writ ref 'd Gen sco, Inc. v. Metalurgici Transformaciones WYATT FIELD SERVICE S.A., Especiales, COMPANY, Appellee. (Tex.App. 1984, writ [14th Dist.] —Houston No. 01-91-00916-CV. dism’d); Co., Equipment Bado Ry Inc. v. Texas, Appeals Court of Lines, Inc., der Truck (1st Dist.). Houston (Tex.Civ.App. [14th Dist.] —Houston n.r.e.). writ ref’d Where the amount of March attorneys’ fees is conclusively estab Rehearing April Denied lished, attorneys’ question may fees be severed and remanded for trial. Pelto Oil
Corp. Corp., v. CSX Oil & Gas [1st Dist.] —Houston denied) (citing Explora Woods
tion & Producing Co. Arkla Equip
ment (Tex.1975)).
Summary judgment for Electroquip on
attorneys’ improper. fees was por- That
tion of the trial court’s must be
severed, reversed, and remanded for trial. respects
As underlying breach of con- claim, however, Electroquip presented
summary judgment evidence of the exis- contract;
tence and terms of the GESCO’s
cancellation; agreed purchase price of motor; pay and GESCO’s any failure to
portion price. of that summary judg- proof encompassed
ment all elements of
Electroquip’s cause of action for breach
contract. GESCO failed to raise a fact
issue on all elements of its affirmative de- illegality,
fense of and none of sup-
posed fact issues GESCO has identified are
material. attorneys’
The issue of fees is severed action,
from the cause of the award of
attorneys’ reversed, fees is and that issue
is remanded for further proceedings consis- *2 Jr., Fussell, Shapiro, Shapiro,
J. Ben Smotherman, Atlanta, GA, Miles Wedge & Smith, Houston, appellant. Hammaker, & Aldine Hutcheson C. Houston, Grundy, appellee. ON REHEARING OPINION BASS, SAM Justice. trial, nonjury ruled for
After a (Wyatt) claim and appellee on its contract $40,488 plus attor- damages of awarded ney's reform the fees. We attorney’s fees make the award con- appeal supreme to the Sipco’s appeal ditional on being receiving updated unsuccess- After drawings, ful, reformed, and as rebid, we affirm.1 price did not did propose original from reduction bid if less FACTS expensive lining used. Wyatt under- *3 early 1987, July Wyatt of solicited correspondence stood this to be a reconfir- bids from various subcontractors the $477,700 Sipco’s July. mation of bid from painting lining external and internal of two hand, Sipco, on the argued other that its storage tanks to be constructed at the (higher) price failure rebid a to new was 10, July 1987, Shell—Deer plant. Park On Instead, not a confirmation of old bid. Wyatt telephoned appellant (Sipco) and Sipco argued no bid made the because Sipco immediately. asked to submit bid requirements new have increased would provided by Wyatt, Based on information bid, Sipco’s Sipco Wyatt and believed that Sipco $477,700 submitted a written of bid already Sipco’s July considered to bid be 13, on July 1987. reliance, high. Wyatt too To show its ar- gued reject- at trial that it expressly never Six originally bids, contractors submitted Sipco’sJuly offer, ed Wyatt employee but a and two were Sipco’s. lower than Howev- testified goal that while The main of the er, Wyatt at contended trial that relied September resolicitation was to maintain Sipco’s on bid because the lower bidders July price $477,700,Wyatt hoped of to unstable, financially were questionable had receive a lower bid. records, performance unacceptable or were Sipco argued to the owner. that the two 11,1987, Wyatt telephoned On November acceptable lower bids were because both Sipco orally paint- Sipco and awarded performance contractors offered to obtain project. ing/lining The trial found bonds, payment and and offered one that the several months between bid- on warranty project. extended ding phone and the call was a November period reasonable Wyatt $477,700 time. Also on Novem- Sipco’s used to bid calcu- ber Wyatt proposed sent the subcon- late its bid for work the project, its own on Sipco. argued tract to S.I.P., general Wyatt this submitted its bid to formality, orally contractor. S.I.P. written contract was a mere awarded the con- Wyatt August 14, Wyatt orally to 1987. contract was formed when Sipco Wyatt Wyatt’s Sipco. Sipco argued knew had awarded the bid used its bid estimates, project any own and also there was never oral or written knew Wyatt was project. Wyatt complex awarded the contract formed due to the signed changes a written contract S.I.P. and cost increases the new draw- with September ings Wyatt’s engineers 1987. involved.
then storage finalized design tank’s 18, 1987, parties met on November sketches. their discuss differences. At this meet- September 11, 1987, $156,467 Wyatt ing, requested
Around pro- Sipco an additional final, vided all bidders the detailed draw- to cover increases in labor and material ings (for the storage requested $634,167). tanks and total costs bid of After price increase, agreed “confirmation” of discussing Sipco the subcontractor’s re- this spective Wyatt’s agent bids. Wyatt testified that to absorb the extra if work costs $82,500 prevent this pay resolicitation was meant to cost for the increased material, changes Sipco lining the bids submitted. ar- tank Plasite gues Wyatt’s request $560,200. amounting or resolicitation to a revised bid of rejection original of new bids (Sipco price was a of the claimed the of the material had bids, drawings and that final during these intro- risen the time between its bid complex requirements Wyatt’s acceptance.) Wyatt duced new that Sip- asked S.I.P. anticipated $82,500 co had not preparing increase, when accept authorize and original bid. provide because had failed to prior opinion. 1. We withdraw our promissory estop- alleged increase The elements price
verification of this
(2) foreseeability
are; (1)
S.I.P. refused.
promise,
for the Plasite
pel
(3)
promisor, and
substan
reliance
Wyatt
received
On December
promisee
to its detri
tial
reliance
of a
from another subcon-
confirmation
bid
Fischer,
English
$518,- ment.
TIPCO,
tractor,
do the work for
Int’l,
v. Petrade
(Tex.1983);
Adams
30, 1987,
On December
asked
Inc.,
replace Sipco,
to allow TIPCO
S.I.P.
—Hous
painting
lining
work.
perform
denied).
ton [1st Dist.]
required Wyatt to ab-
approved, but
S.I.P.
necessary
if
enforced
promise will be
re-
sorb the difference between TIPCO’s
Adams,
injustice.
avoid
$518,188
Sipco’s origi-
placement bid
*4
must be reason
promise
on the
Reliance
$40,488.
In
$477,700,
of
a total of
nal bid
Corp.,
Petroleum
Douglas
v. Aztec
able.
1988, Wyatt
Sipco
January of
notified
late
(Tex.App Tyler
—
Wyatt
Sipco responsible
hold
that
Ry.,
Pac.
v. Texas &
writ);
Thate
$40,488
that
difference.
(Tex.Civ.App.
595-96
—Dallas
February
Wyatt met in
of 1988
Sipco and
dism’d).
1980, writ
the
Sipco’s obligation
perform
to discuss
argues
Wyatt’s
shop-
Sipco
“bid
Sipco
meeting,
At
July.
work as bid in
this
Wyatt
ping”
chiseling” show that
and “bid
pro-
indicated
continued
the
its
interest
Sipco relies
rely
Sipco’s
on
on
did not
bid.
ject,
complained
of the drafted subcon-
Technology,
v. A.B. & J. Con-
Inc.
November of Preload
by Wyatt
prepared
Co.,
(5th Cir.1983),
key
struction
Sipco
contended that several
696 F.2d
original
provisions materially changed
authority
no Texas
hold-
but that case cites
had
its
specifications
Sipco
on
based
which
limits the
ing
shopping/chiseling
bid
July
Wyatt claimed that
drafted
bid.
doctrine.
equitable estoppel
changes
contained no material
subcontract
briefly bid
Texas case discusses
One
formality anyway,
a
as a
and was but mere
Traco, Inc.,
chiseling.
shopping and bid
already
had
been formed on
contract
(Tex.
Arrow Glass
promissory estoppel.
basis of
denied).
In
Antonio
—San
In March of
TIPCO
Wyatt and
Traco,
(Arrow)
sup
sued
a subcontractor
painting/lining
contracted for
work.
(Traco)
supply
failure to
plier
for Traco’s
completion
After
in December
of
work
price. Id. at
187. Af
quoted
doors at the
$40,488,
Wyatt
payment of
demanded
trial,
judge ruled for Arrow
ter
bench
brought
and then
this suit.
Id. Tra-
estoppel grounds.
promissory
one,
three,
of
and six.
I. Points
error
conclusively proved that
it had
co claimed
chiseling and thus
engaged in bid
Arrow
error,
it
point
Sipco
In its
of
asserts
first
appel
188. The
Id.
hands.
at
had unclean
Wyatt
deserved a directed verdict because
was suffi
that there
by
late court concluded
promissory estoppel
its
claim
waived
engaging
shopping”
uphold
in “bid
chisel-
court’s
“bid
trial
cient evidence
error,
point
Sipco
ing.”
In its third
guid
Id. at 193. There is
little
findings.
be-
deserved a directed verdict
asserts it
regarding
or how
Traco
whether
ance
reasonably rely on
Wyatt
cause
did not
shopping can defeat a claim based
bid
error,
point
In
Sipco’s bid.
its sixth
equitable estoppel.
verdict
Sipco asserts
deserved a directed
Preload,
general contractor sued
In
prove
damages.
Wyatt failed to
its
because
subcontractor,
of contract
alleging breach
estoppel
promissory
A. Was
waived
promissory estoppel after the subcon-
shopping”
and “bid chisel-
“bid
perform the
he
work as
tractor refused
ing?”
Preload,
at
At
696 F.2d
1083-84.
had bid.
(Preload)
trial,
general contractor
won
Wyatt
promis-
Sipco contends
waived its
estoppel
on both the breach
contract
sory
shopping” or
estoppel claim
“bid
judg-
affirming
In
Id. chiseling.”
claims.
“bid
ment,
Wyatt’s
the court discussed
limitations on
B. Was
reliance reasonable?
doctrine,
estoppel
promissory
including bid
error,
point
Sipco
third
shopping
chiseling.
Id. at 1088-91.
prove
claims
failed
reli
on Sipco’s
Sipco
ance
bid
reasonable.
shop-
Preload court referred to “bid
Wyatt’s
contends
reliance was unreason
ping”
general
seeking
as “a
contractor’s
able because
was not the lowest re
bids from
other
subcontractors
than the
sponsible bidder.
one
general
bid
whose
amount the
used
calculating
bid,
its own
and often involves
subcontractors,
Two other
Corrosion
general’s
informing
other subcon-
SSPC,
Eliminators and
submitted lower
tractors of the
of the
amount
low bid and
Sipco July
bids than
1987. The evidence
inviting them to undercut it.”
conflicts, however,
Id. at 1089.
regarding whether
companies
adequately perform
these
could
The evidence conflicts on whether
jobs.
Wyatt solicited bids from other contractors
Evidence showed that Corrosion Elimi-
for the purpose
undercutting Sipco’s
bid.
financially
Also, Wyatt
nators was
weak.
Wyatt’s representative
get
admitted that
was unfamiliar with Corrosion Eliminator’s
ting lower bids was one reason for the
reputation
performance
lining
as a
con-
*5
bids; however,
of
resolicitation
he claimed
Further, Wyatt
tractor.
had
solicited
not
a
the changes made in
final
and
sketches
Corrosion,
bid from
Wyatt
and
later
lapse
of time were also reasons for the
learned that the customer would not allow
September
Moreover, Sipco
resolicitation.
job.
Corrosion
to
Eliminators work on
prove
did not
that Wyatt told other
subs
in
SSPC was also
financial
trouble.
Sipco
Sipco
prove
bid. Nor did
that
Moreover, Wyatt
representative
a
who
Wyatt invited other
un
subcontractors to
knew SSPC’s work testified it was unsatis-
$477,700.
Sipco
Thus,
dercut the
bid of
factory.
Sipco
prove
to
shopping”
failed
“bid
conclu
sively, as matter of
Sipco
a
law.
Wyatt
offered evidence that
stated
Wyatt
high
its bid was too
and
had
that
The Preload court defined “bid chi
Sipco
argued
two lower bids.
also
the two
seling”
general
“a
attempt
contractor’s
acceptable Wyatt
lower bids were
be-
to
negotiate
to
a
price
lower
than
bid
that
both
and
cause
Corrosion Eliminators
SSPC
figure
from the
whose
subcontractor
bid
performance
pay-
to
and
had offered
obtain
general
employed
calculating
its own
bonds,
ment
and
Eliminators was
Corrosion
bid, frequently by threatening to subcon
pro-
willing
warranty
to extend its
on the
Preload,
tract
party.”
the work to a third
Sipco
that,
ject.
matter of
contends
as a
Thus,
to more than one law, negotiations Sipco and entered prove, as matter with conclusively engaged shopping” or “bid in “bid with TIPCO. into subcontract in a chiseling,” especially when viewed complex; the The facts in this case were light Wyatt. Additional most favorable ambiguous; and parties’ relationship was probative ly, there was evidence that conflicting. Whether and evidence was $477,700 Wyatt’s Sipco’s reliance on bid of formed, renegotiated, a contract when We the trial was reasonable. hold terminated was difficult discern. denying Sipco’s motion did not err supported Sipco these Some evidence judgment. We further hold that the trial points, from but it was far conclusive. Wyatt engaged refusal to find judge’s find- a different fact facts above show that against chiseling is so shopping or not bid conclu- might a different er have reached as to be great weight of the evidence sion, a rational they do not show that Caterpillar manifestly unjust. Cropper Sip- only for could have ruled trier fact (Tex. Tractor judge did not abuse We hold the trial co. 1988). finding Wyatt reason Nor prove did her discretion great against the ably Sipco’s bid relied as matter law. contentions weight preponderance of the evidence. two, four, are and five Points of error Sipco’s points error are first and third overruled. overruled. Damages. C. seven, eight, and III. Points of error nine. point
Sipco’s sixth of error contends that, law, Wyatt proved as a matter of *6 error, point com- Sipco In its seventh Sipco complains Wyatt damages. pre that awarding plains judge in the trial erred sented no evidence of an executed subcon $16,250 she attorney’s fees because TIPCO, Sipco’s itself and between were whether such fees failed ascertain replacement, Wyatt prove nor did customary and reasonable. paid amount it to TIPCO. are si findings of fact entered $518,- Evidence showed that bid TIPCO custom lent as the reasonableness 188, $40,488 Sipco’s is more than which fees; however, attorney’s ary nature of July The judge bid. awarded that amount re granted Wyatt’s judge after trial damages. Wyatt’s contract administra- findings of fact quest to enter additional tor, Cato, Wyatt had Gerald testified that fees, re attorney’s Sipco never setting perform to hire TIPCO to at a work findings quested or amended any additional Sipco’s higher July cost than We hold bid. circumstances, Under these on this issue. legally this is sufficient evidence. Sher- sup findings presumed are the omitted 240, Bank, man First 760 v. Nat’l S.W.2d port judgment. Tex.R.Civ.P. (Tex.1988); 242 726 Stafford, Stafford 14, (Tex.1987). 16 S.W.2d Point of error seven overruled. point The sixth of error is overruled. eighth point trial of error asserts the awarding attorney’s fees to judge erred two, four, of error and five. II. Points unconditionally, Sipco appeals. if second, fourth, and fifth In agree. We error, Sipco the trial court points of asserts Williams, 1) 658 S.W.2d finding: Wyatt’s Siegler that ac erred in not 1983, requesting (Tex.App. and/or new 236 tions in additional Dist.] [1st —Houston writ), may not held that a trial awarded the contract no we bids after was Sipco’s taking a successful rejection penalize amounted to S.I.P. Thus, Wyatt’s award bid; 2) right at 241. Sipco appeal. had the to refuse Id. upon fees must be conditioned Wyatt’s proposed attorney’s subcon of perform because appeal. Id. An un- Sipco; unacceptable Sipco’s unsuccessful tract form was 608 conditional attorney’s award of is im- REQUIREMENT fees FOR A SEPARATE
proper. Id. ORDER OR JUDGMENT RECITAL The error is harmless so far be Many Texas have eases held that or Sipco’s appeal cause has not succeeded overruling der a motion for directed verdict However, here. point to the extent this appear must judgment or be recited applies error to the unconditional award separate order; in a written it is suffi not attorney’s appeal fees on to the Texas Su cient ruling that the fully recorded preme Court, it is sustained. Stores, statement of facts. Wal-Mart Inc. 587, Berry, 833 (Tex.App.— S.W.2d 590 point The ninth of error states 1992, 18, requested, Aug. Texarkana awarding appellate attorney’s fees before 1992); Soto v. Southern Health & the appeal occurs process denies due Life Ins., 752, (Tex.App.— S.W.2d equal protection rights under the United Corpus writ); Christi no Pierce v. States Texas con- Constitutions. This Gillespie, 761 (Tex.App.— rejected Brill, tention in Pullman v. Corpus writ); Christi Superior no Brooks, Yount, Powell & Trucks, Allen, Inc. v. (Tex.App. [14th Dist.] —Houston 1983, writ [1st Dist.] —Houston writ), reject and we it for the same n.r.e.); Bost, ref’d Steed v. reasons. (Tex.Civ.App. writ); —Austin point The ninth of error is overruled. George Southwestern Materials Co. v. Inc., (Tex.Civ. Consol. We reform provide 1972, writ ref’d Dist.] [14th —Houston Wyatt will attorney’s ap- receive fees on n.r.e.). peal Supreme only Texas if Court prevail does As court. requirement seems to have been reformed, the judgment is affirmed. solely by created enforced the interme appellate diate I courts. have found no supreme authority for the rule. If COHEN, J., concurs. rule, is today there reason *7 JONES, J., cannot discern it. rule participating not in The has been criti by unfair, opinion being cized as un on commentators rehearing. necessary, contrary statutory au COHEN, Justice, concurring. thority. Michael A. Hatchell and Lori M. Traps Gallagher, Ten Worst —And a Few I agree with opinion. Justice Bass’ Up: (State Texas, ofBar Advanced Runners opinion is expose written to what I consider Appellate (Sep Civil Practice Course A-6 to be weaknesses in current law Texas tember, 1992). rule seems to have regarding what must be done preserve appeared first in present form in South appellate for a in review claimed error opinion western That Materials. cited two overruling a motion for directed verdict. authority rule, cases as for neither traditionally Texas law has imposed two supports case it. In Corp. Ellis v. Drilling requirements parties appealing the over- McGuire, (Tex.Civ. 321 S.W.2d ruling aof motion for directed verdict. n.r.e.), App. writ ref’d —Eastland ruling is that the appear first must merely court held that the motion was separate or be recited in a presented waived because it never was order. The a second is that defendant who overruled. The same is true of v. Lewis introduces evidence after the for motion Smith, (Tex.Civ. reurge directed verdict is overruled must dism’d). Worth writ Ne —Fort case, the motion at the vertheless, close or else the rule created in Southwest he waives it. I think those rules be should ern Materials has repeatedly applied been abandoned. being explained justified. without or reurge the mo- not and did was overruled why ruling no reason oral know of of all evidence. at the close tion is in the statement of fully
that recorded overruling preserve error in a facts will not rule, requirement previous this Like the motion for directed verdict. Two different and en have been created seems to also Tex.R.App.P. parts of indicate that is appellate solely by the intermediate forced sufficient. the rule applied Courts have courts. City v. nonjury trials. Wenk 52(a) jury and provides: both Rule Bank, (Tex.Civ. Nat’l preserve complaint ap- In order to a Prop 1981, writ); Horizon App. Tyler pre- pellate review, party a must have — Martinez, Corp. erties timely re- sented to the trial court a ref’d (Tex.Civ.App. Paso quest, motion, stating objection or a —El Elskes, n.r.e.); Thornhill ruling specific grounds for the he desires writ). (Tex.Civ.App. necessary is the court to make ... It also —Waco to obtain a complaining party submission, applied the original we On parties request, objec- ruling upon the Bryan Dockery held that rule necessary tion or motion ... It not appellate because SIPCO waived review except rulings or orders formally after the over- introduced evidence court. trial did for directed verdict and ruled its motion for directed verdict reurge motion added.) (emphasis I now believe of all evidence. the close complied this rule. It made SIPCO with case, nonjury following this rule in a ruling; a motion and obtained it should did, originally conflict with we formally except not have to to the oral Tex.R.App.P. 52(d). ruling by getting a memo- written order to is a com- it. A for directed verdict rialize motion le- plaint plaintiffs evidence was Moreover, requirement separate for a amendment ef- gally Since its insufficient. written order is inconsistent with Tex. 52(d) 1, 1990, has September rule fective R.App.P. 52(e)(10), provides: which provided pertinent part as follows: Anything occurring in open court or desiring complain appeal party A reported chambers that and so certi- nonjury case that the evidence may reporter fied be includ- sup- factually legally or insufficient ed in the statement of than a facts rather fact, finding finding of port a exception formal bill of ... of law as a matter fact was established Thus, should not have to obtain a against overwhelming weight or was order, like written which is a formal bill of required to not be of the evidence shall exception, already in order to show what is (a) of this rule. paragraph comply with shown the statement of facts. *8 52(a) complain in requires party to Rule a WAIVER BY PRESENTING EVIDENCE preserve court in order to issues the trial 52(d) Rule excuses limiting appellate review. appellate The second rule review for parties nonjury require- from that party is that a who introduces evidence in cases they complain legally or fac- reurge the motion is ment when after overruled must Thus, evidence, rule tually insufficient evidence. the motion at the close all or it, 52(d), Dockery, 788 says predi- that no Bryan as understand else waive review. its required for to raise 449 cate is SIPCO [1st —Houston writ); predicate required, Texas Steel Co. v. complaint. If no SIP- Dist.] n failure the (Tex.Civ. to motion at Douglas, 114 renew its CO a n.r.e.). not constitute ref’d of all evidence should Worth writ close —Fort Thus, the cases I would hold that evidence after its motion waiver.1 SIPCO introduced evidence, certainly plain it should is true of a failure to attain of insufficient The same movant’s overruling overruling a its for direct- written order motion to a written order not have obtain If, trial, nonjury in a does ed verdict. not have to move unnecessary the motion. for verdict to com- directed 610
applying the rule in Bryan
to
Dockery
107
S.W. at
court
Kelleher
cited
nonjury
longer good
approval
cases are no
be- with
the rule in
law
Grooms v. Neff
Co.,
they require
cause
Harness
79
the
Ark.
S.W.
defendant
do
135
(1906)(op.
reh’g). There,
52(d)
more
on
than rule
Arkansas
requires. Conse-
Supreme
by
Court relied on three
quently,
them,
decisions
I would decline to follow
Court,
the United
Supreme
States
and held:
and instead hold that the insufficient evi-
testing the
complaint
preserved
review,
sufficiency
dence
the evi-
was
for
[I]n
dence, the court must consider all the
though
even
presented
SIPCO
evidence and
evidence,
whether
introduced
did not renew its motion at the
all
close of
So,
plaintiff
by the
or
defendant.
in test-
evidence.
ing the
correctness
the trial court in
holding, however,
ques-
would raise
denying
request
peremptory
for
in-
tions about the standard
In
of review.
struction, regardless of the time when
deciding legal sufficiency,
appel-
should the
made,
request
this court must look
evidence,
late court consider all the
includ-
introduced,
all
testimony
and will
ing evidence introduced after
de-
judge
not reverse the
case
account of the
motion,
nied the
only
or
the evidence
itas
give
trial court’s
request,
refusal
stood when the
denied the motion for
though
even
the evidence was insuffi-
verdict?
directed
made,
request
cient at the time the
was
In San Antonio
upon
Traction
v.Co. Kelle
if
the whole
there
case
is sufficient
her,
Tex.Civ.App.
S.W.
sustain the verdict.
[evidence]
(1908,
dism’d),
the court held
all
this that
149 U.S.
judgment should
S.Ct.
37 L.Ed.
be re-
(1892), which held:
assignment
versed on this
of error. To
have effected such results the defendant
going
question
Without
into the
whether
upon
should have rested its
properly
case
the re-
motion was
made in this
case,
say
fusal
it
grant
of the court
is sufficient to
the motion to
defen-
by putting
dant
upon
instruct a
waived
his testimo-
verdict in its favor
ny. A
right
defendant has
plaintiff’s
close of
undoubted
testimony.
Instead
suit,
upon
to stand
his
non
motion
doing so the defendant introduced its evi-
and have his writ of error if it be re-
dence. The effect of
this was waive
fused;
right
but he has
upon
to insist
right
to have the
reversed
exception,
his
having
after
subsequently
account
the error of the
put
his testimony and
his
made
case
refusing
peremptory instruction,
if
merits,
upon the
since the
jury
court and
evidence,
plaintiff’s
together with
the right
have
to consider the whole case
defendant,
introduced
*9
by
testimony.
as made
the
not
It
infre-
to carry
sufficient
the case
the
jury
to
quently happens
the
defendant him-
any
alleged grounds
one or more of the
self, by
evidence, supplies
his own
the
negligence.
Grooms v.
Harness
Neff
link, and,
missing
not, may
if
he
move to
401,
Ark.
ques-
79
611
J.,
(Cohen,
denied,
Herbert,
con-
at 511
cert.
474
(Tex.Crim.App.1985),
661
“plaintiff”
substi-
If
word
is
curring).
the
337,
322
U.S.
106 S.Ct.
88 L.Ed.2d
on the
and the reliance
tuted for “State”
State,
Kuykendall
(1985);
v.
609
removed,
the
provision is
jeopardy
double
However,
(Tex.Crim.App.1981).
case.
apply in
civil
same considerations
court, myself includ
judges
several
on this
cases,
the errone-
ed,
Reviewing
after
the
the evidence
stated that in criminal
have
verdict
for directed
ous
of a motion
protection
denial
rule
the constitutional
violates
choice:
to an unfair
puts the defendant
gives
against
jeopardy
double
because it
or risk
right
to be heard
the
surrender
prove
to
its case.
the State two chances
insufficiency
the
waiving the
evidence
State,
507, 508, 509-
Herbert
by presenting its own evidence. Unfortu-
1992, no
(Tex.App.
[1st Dist.]
—Houston
law, giving up the
present
under
nately,
State,
Winter
pet.);
price
is
which must
right
“the
to be heard
731-34
Dist.]
[1st
—Houston
appeal
the
paid”
the defendant
be
(Cohen, J.,
pet.)
concurring).
no
at the
judge’s
to direct a verdict
refusal
Bogie. question
at
I
the rule in
U.S.
plaintiff’s
David B.
of the
case.
conclusion
Bogk
739. The rule in
13 S.Ct. at
Propriety
Annotation,
HarRison,
of Di-
premise
the
that “the
based on
FeweR Than
in Favor of
rection of Verdict
right
jury have the
to consider the whole All
at Close of Plaintiff’s
Defendants
Id.
testimony.”
case as made
the
(1978). Why
Case,
82 ALR3d
premise is flawed
the extent
relies
when
suffer that choice
should a defendant
any
right to
right
jury.
jury’s
of the
If the
plaintiff’s
was insufficient
evidence
paramount,
consider
whole case were
recognize it? No
judge failed to
the trial
give
appellate
we
trial and
would not
should
argue that a defendant
one would
judges the
right
any
under
state of
the evidence is
when
suffer
jury’s
evidence to set aside a
verdict or
insufficient,
argue that a
would
one
place.
direct verdicts
the first
to present
defendant should not be allowed
then,
anyone say
Why,
evidence.
court, why
judge
As for the
should a
enjoy one of these
that a defendant can
right
case
have the
consider the whole
Simmons
rights,
not both?
Cf.
ex-
when there would be no “whole case”
389-94,
States,
390 U.S.
United
cept
judge’s
for the
erroneous denial of
(1968)
967, 973-76,
Tex. Miller State, (Tex. 496-97
App. pet.); Antonio D.L.N. —San State, (Tex.Civ. writ). The eases —Dallas
recognize reality: ruling the erroneous objector
forced present the evidence greater
or risk even having harm from it
go unanswered. The same is true of a present forced to its entire case after
a motion for wrongfully directed verdict is
denied. legal
To determine sufficiency, I would only
review the evidence as it stood when
the motion for directed verdict was denied.
If the defendant did not move for directed case,
verdict plaintiffs at the close of the
then I would review all of the evidence
presented. my opinion, these consider- apply
ations nonjury jury to both Thus,
cases. I apply the same rule cases, jury though even they are not 52(d).
covered the last sentence of rule concur in the here because . standard,
under either judging whether as a
evidence whole or when stood overruled,
motion for directed verdict was
it was sufficient. JOHNSON, Relator,
Arthur Bradley SMITH, Judge
The Honorable
the 164th District Court of Harris Texas,
County, and the Honorable West, Judge
David of the 269th District Texas, County, Respon-
Court Harris
dents.
No. 01-92-00137-CV. Texas, Appeals
Court of (1st Dist.).
Houston
April
Rehearing Denied June