Opinion
No. B-424.
October 25, 1967. Rehearing Denied December 20, 1967.
Appeal from the 151st District Court of Harris County, John Compton, J.
Fulbright, Crooker, Freeman, Bates Jaworski, St. John Garwood, Jr., Joe H. Foy, Houston, for petitioners.
Baggett, Kirk, Van Keuren Baggett, Russell T. Van Keuren, Houston, for respondents.
ON APPLICATION FOR WRIT OF ERRORThis action to recover damages for fraud was instituted by Victor J. Janak and Janak Construction Company, plaintiffs, against Houston Natural Gas Corporation, Active Heating Air Conditioning Company, Inc., Ready Power Company, Jack H. Burkhalter, Tom Stinnett and Wayne Lippert, defendants. Ready Power Company failed to answer. After a jury trial judgment was rendered: (1) that plaintiffs recover from Houston Natural Gas Corporation and Ready Power Company, jointly, the sum of $7,500.00, and (2) that plaintiffs take nothing against the remaining defendants.
The Court of Civil Appeals held that the jury findings on certain liability issues are supported by the record, that there is no competent evidence as to the cost of the duct system, power unit and controls, and that the trial court erred in granting Lippert's motion for instructed verdict. It reversed the judgment of the trial court and remanded the cause for a trial of the damage issues alone. 416 S.W.2d 484.
The holding of the Court of Civil Appeals that a partial remand may properly be ordered in a case of this character to enable the trial court to determine only the amount of damage is in conflict with our opinion in Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375, but we have concluded that there is no merit in the other points of error brought here for review. In accordance with the provisions of Rule 483, Texas Rules of Civil Procedure, and without granting the application for writ of error, the judgment of the Court of Civil Appeals is modified so as to order a remand for the trial of all issues between plaintiffs on the one hand and Houston Natural Gas Corporation and Wayne Lippert on the other. As so modified the judgment of the Court of Civil Appeals is affirmed.