Eduardo G. Rodriguez v. The State of Texas--Appeal from 119th District Court of Tom Green County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-90-00285-CR

Case Date: 12/11/1991

Plaintiff: Gregory B. Johnson

Defendant: Artie G. Giotes, as Administrator of the Estate of Lynn W. Malone, Deceased--Appeal from County Cou

Preview:Gregory B. Johnson v. Artie G. Giotes, as Administrator of the Estate of Lynn W. Malone, Deceased--Appeal from County Court at Law No 1 of McLennan County
IN THE TENTH COURT OF APPEALS

No. 10-01-181-CV

GREGORY B. JOHNSON, Appellant v.

ARTIE G. GIOTES, AS ADMINISTRATOR OF THE ESTATE OF LYNN W. MALONE, DECEASED, Appellee

From the County Court at Law No. 1 McLennan County, Texas Trial Court # 99-0468-PR1 MEMORANDUM OPINION Gregory Johnson appeals from a jury award of $25,000 and attorney s fees of $7,000 relating to the dissolution of a law firm partnership, Malone & Johnson, following the death of his partner Lynn W. Malone. Johnson claims in five points that: (1) there is no evidence and factually insufficient evidence to support the jury s finding on the net worth of the partnership, (2) there is no evidence and factually insufficient evidence to support the jury s finding that Johnson owed money to Malone s estate, (3) the trial court erred in granting judgment on attorney s fees against Gregory Johnson because the jury was instructed to award attorney s fees only if it found his former wife, Aimee Johnson, liable, (4) the trial court erred in granting judgment for attorney s fees because the evidence does not support the judgment, and (5) the trial court erred in granting judgment for attorney s fees because there is no legal basis to award
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attorney s fees on the claims submitted to the jury. We affirm the judgment as modified. ATTORNEY S FEES In points three through five, Johnson contends that the trial court erroneously granted judgment against him on attorney s fees. Appellee Giotes concedes these points on appeal. Accordingly we sustain points three through five. NO EVIDENCE AND INSUFFICIENT EVIDENCE Johnson contends in points one and two that there is no evidence and factually insufficient evidence to support a jury finding on (1) the net worth of partnership and (2) whether Johnson owed money to Malone s estate. There are five different ways to preserve a no evidence point of error: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury s answer to a vital fact issue; or (5) a motion for new trial. Steve s Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex. 1988); Crow v. Burnett, 951 S.W.2d 894, 899 (Tex. App. Waco 1997, writ denied). Johnson filed a motion for new trial but failed to address the issue of no evidence to support the jury findings. Johnson did not utilize any of the other four preservation methods. As a result, Johnson has failed to preserve his no evidence complaints. Giotes argues that Johnson s factual sufficiency points are a disguised complaint that incorrect legal issues were submitted in the court s charge. We agree. While Johnson labels his points as factual sufficiency points, the actual substance of his arguments attack alleged omissions and commissions in the definitions and instructions that were submitted in the court s charge. We review the sufficiency of the evidence based on the charge which was submitted to the jury, not the charge which should have been submitted to the jury. Osterburg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). A party that fails to object to a defective submission of a question waives complaint on appeal. Tex. R. Civ. P. 278; Green Int l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). A party who is not relying on the question, instruction or definition, and fails to object to its omission from the charge, waives complaint on appeal. Tex. R. Civ. P. 278; Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 50 (Tex. App. Corpus Christi 2001, no pet.). Here, Johnson made no objections. Johnson has therefore failed to preserve his complaint. Accordingly we overrule points one and two. CONCLUSION We modify the judgment to delete the recovery of attorney s fees from Gregory Johnson. // We affirm the judgment as modified.

REX D. DAVIS Chief Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed as modified Opinion delivered and filed April 2, 2003

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