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construing issue to be factual sufficiency when appellant cited legal sufficiency standard of review, analyzed issue as factual sufficiency, and sought remand
Summary of this case from Benavente v. GrangerOpinion
No. 01-07-00008-CV
Opinion issued April 10, 2008.
On Appeal from the 164th District Court, Harris County, Texas, Trial Court Cause No. 2001-60227.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
Appellant, Richard Skains, appeals from a take-nothing judgment rendered on his negligence claim under the general maritime law asserted against appellee, Torch Offshore, L.L.C. ("Torch"). Skains's sole appellate challenge is that the evidence was factually insufficient to support the jury's negative finding of negligence by Torch. Concluding that Skains failed to preserve his sole appellate challenge, we affirm.
Pertinent Procedural Background
Skains was employed by Gulf Coast International Inspection, Inc. as an x-ray technician. In December 2007, Skains was being transported to a worksite aboard Torch's vessel, the M/V MIDNIGHT FOX, when the vessel pitched suddenly, causing him to hit his head against a steel doorway. At trial, Skains contended that the M/V MIDNIGHT FOX had collided with another vessel due to Torch's negligence, thereby injuring him; Torch disputed that a collision occurred, that it was negligent, and that any injury occurred that resulted in Skains's damages.
Skains sued Torch for negligence under the Jones Act, for compensation under the Longshoreman and Harbor Worker's Compensation Act ("LHWCA"), for negligence under the general maritime law, and for breach of the warranty of seaworthiness. The trial court rendered summary judgment on Skains's claims for negligence under the Jones Act and for breach of the warranty of seaworthiness and also disposed of his LHWCA claim pre-trial, though the record is unclear exactly how that disposition occurred. In October 2005, the case went to trial solely on Skains's claim for negligence under the general maritime law. The jury found that neither party was negligent, and the trial court rendered a take-nothing judgment on Skains's negligence claim. Skains filed a motion for new trial, which the trial court denied.
See 46 U.S.C.S. § 30104 (LexisNexis 2007).
See 33 U.S.C.S. §§ 901- 50 (LexisNexis 1994 Supp. 2007).
Preservation of Error
In his sole issue, Skains complains that the evidence is factually insufficient to support the jury's finding that Torch was not negligent.
Skains's brief contains only two references to legal sufficiency: the first merelysets out the standard of review, and the second appears in the prayer, "The jury's answer to Question Number 1 . . . was legally and factually against the great weight and preponderance of the evidence, manifestly unjust." However, the prayer requests a remand, not a rendition; Skains consistently speaks of the jury finding's being against the great weight and preponderance of the evidence or manifestly unjust; and his argument compares all evidence, both that supporting and that undermining the verdict. Skains's challenge is thus clearly one of factual sufficiency alone. See Dow Chemical Co. v. Francis, 46S.W.3d 237, 242 (Tex. 2001) ("When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.") (emphasis added) (citation omitted); Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401-02 (Tex. 1981) (indicating that remand for new trial is remedy for factual insufficiency of evidence).
The filing of a motion for new trial is a prerequisite to an appellate complaint challenging the factual sufficiency of the evidence supporting a jury finding. See TEX. R. CIV. P. 324(b)(2). To preserve error, the motion for new trial must state the factual-sufficiency complaint; a general motion for new trial that does not assert factual insufficiency does not suffice. See, e.g., Halim v. Ramchandani, 203 S.W.3d 482, 487 (Tex.App.-Houston [14th Dist.] 2006, no pet.); see also TEX. R. APP. P. 33.1(a)(1)(A) (requiring that party making request, objection, or motion state "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context").
In his motion for new trial, Skains asserted (1) that Torch had suppressed records or spoliated documents and evidence, (2) that the jury had committed misconduct, (3) that the trial court had erred in striking two of his expert witnesses, and (4) that the trial court had erred in rendering summary judgment on or in striking his LHWCA and unseaworthiness claims. Skains did not assert that the evidence was factually insufficient to support any aspect of the verdict, and he did not raise any argument that can be construed as having raised this issue. Accordingly, we hold that Skains has waived his complaint. See TEX. R. CIV. P. 324(b)(2); Halim, 203 S.W.3d at 487; see also TEX. R. APP. P. 33.1(a)(1)(A). We thus overrule his sole issue.
Conclusion
We affirm the judgment of the trial court.