Jeffray Alter v. Benjamin Carmona and Beacon Sales Acquisitions, Inc.

Court of Appeals of Texas

Jeffray Alter v. Benjamin Carmona and Beacon Sales Acquisitions, Inc.

DecidedDecember 29, 2014

Docket14-14-00983-CV

StatusPublished

This text of Jeffray Alter v. Benjamin Carmona and Beacon Sales Acquisitions, Inc. (Jeffray Alter v. Benjamin Carmona and Beacon Sales Acquisitions, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jeffray Alter v. Benjamin Carmona and Beacon Sales Acquisitions, Inc., (Tex. Ct. App. 2014).

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Opinion

ACCEPTED 14-14-00983-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 12/29/2014 12:04:03 PM CHRISTOPHER PRINE CLERK

No. 14-14-00983-CV FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS F OR HET 12/29/2014 12:04:03 PM FOURTEENTH DISTRICT OF T EXAS CHRISTOPHER A. PRINE Clerk

JEFFRAY ALTER

V.

BENJAMIN CARMONA AND BEACON SALES ACQUISITIONS, INC.

On Appeal from the 61st Judicial District Court of Harris County, Texas District Court Cause No. 2011-23496

MOTION TO DISMISS APPEAL

TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

Appellees, Benjamin Carmona and Beacon Sales Acquisitions, Inc., file this

Motion to Dismiss the appeal in this matter filed by Appellant, Jeffray Alter.

PRELIMINARY STATEMENT This appeal should be dismissed because Jeffray Alter unconditionally

moved for entry of the trial court’s Final Judgment in this case, and in the form

Jeffray Alter drafted and approved. As a result, Jeffray Alter has waived any right

to challenge the judgment on appeal. ARGUMENT Following the jury trial of this matter, Jeffray Alter filed a Notice of

Submission, attaching a document the Notice referred to as “Plaintiff’s Final

Judgment.” (Ex. A) (emphasis added). The proposed Final Judgment attached to

the Notice was drafted by Plaintiff and signed by his counsel. (Id.) The proposed

Final Judgment “incorporated” the jury charge and verdict “for all purposes,” and

set forth each of the jury’s findings in the proposed Final Judgment itself. (Id.) It

also states: “Because it appears to the Court that the verdict of the jury is for the

Plaintiff, judgment should be rendered on the verdict in favor of the Plaintiff.” (Id.)

Again, all of this language was drafted by Plaintiff. The Court signed Jeffray

Alter’s proposed Final Judgment, without any changes, on September 23, 2014.

(Ex. B)

On October 9, 2014, Appellee’s insurance carrier tendered a check in the

amount of $19,092.16, comprised of the $16,246.87 judgment plus $2,845.29 in

post-judgment interest. By way of its delivery from Hawkins & Associate on

October 16, 2014, this check was unconditionally tendered to Alter’s counsel for

full payment and satisfaction of the judgment, plus interest, that Alter proposed

and set for submission. (Ex. C) Alter now attempts to appeal the very judgment

he asked the trial court to enter, and has not returned the check.

2 A. Generally, a party waives its right to appeal by proposing, consenting, or agreeing to a final judgment. It is black letter law that a party can waive its right to appeal by proposing a

Final Judgment. Indeed, a party generally cannot appeal from or attack a judgment

to which it has consented or agreed. See, e.g., Boufaissal v. Boufaissal, 251 S.W.3d

160, 166 (Tex. App.—Dallas 2008, no pet.) (holding party cannot complain on

appeal about an invited action or ruling); Bonner v. Tex. Children's Hosp., No. 13-

03-228-CV, 2006 Tex. App. LEXIS 1331, at *10 (Tex. App.—Corpus Christi

2006, pet. denied) (holding party waived right to appeal a judgment that was

requested “unqualified”); Leeper v. Woodrick, No. 2-04-00371-CV, 2005 Tex.

App. LEXIS 4834, at *7 (Tex. App.—Fort Worth 2005, no pet.) (dismissing appeal

on grounds that appellant consented to judgment); In re P.M.M., No. 07-00-00253-

CV, 2001 Tex. App. LEXIS 955, at *4-5 (Tex. App.—Amarillo 2001, no pet.)

(affirming order appellant approved “as to form and substance”); Hosey v. First

Nat’l Bank, 595 S.W.2d 629, 630 (Tex. Civ. App.—Corpus Christi 1980, writ

dism’d) (holding party waived right to appeal from agreed judgment); Posey v.

Plains Pipe Line Co., 39 S.W.2d 1100, 1100 (Tex. Civ. App.—Amarillo 1931, no

writ) (holding party had no right to appeal agreed judgment).

The rationale behind this rule is that a party should not be allowed to

challenge on appeal an action or ruling which it invited. Gillum v. Republic Health

Corp., 778 S.W.2d 558, 563 (Tex. App.—Dallas 1989, no pet.). A party’s consent

3 to the trial court’s entry of judgment waives any error, except for jurisdictional

error, contained in the judgment, and that party has nothing to properly present for

appellate review. DeLee v. Allied Finance Co., 408 S.W.2d 245, 247 (Tex. Civ.

App.—Dallas 1966, no writ).

B. To preserve a right to appeal, a party must make the trial court aware that it disagreed with the final judgment. If a party wants to preserve the right to appeal, it must follow steps set forth

by the Texas Supreme Court in First Nat’l Bank of Beeville v. Fojtik, 775 S.W.2d

632, 633 (Tex. 1989). These are not difficult, but they are mandatory.

In Fojtik, after the jury returned a verdict of zero damages, the plaintiffs

filed a motion for judgment that read as follows:

While Plaintiffs disagree with the findings of the jury and feel there is a fatal defect which will support a new trial, in the event the Court is not inclined to grant a new trial prior to the entry of judgment, Plaintiffs pray the Court enter the following judgment. Plaintiffs agree only as to the form of the judgment but disagree and should not be construed as concurring with the content and result. Id. at 633 (emphasis added). The Supreme Court recognized the plaintiffs’

“reservation of the right to complain . . . [as] an appropriate exercise of such a

right.” Id. It explained: “There must be a method by which a party who desires to

initiate the appellate process may move the trial court to render judgment without

being bound by its terms.” Id.

4 Courts applying Fojtik have clarified that, although “specific language” may

not be absolutely necessary, the issue is “whether the trial court was made aware

that the party requesting judgment be entered disagreed with the judgment.”

Seeberger v. BNSF Ry. Co., No. 01-12-00583-CV, 2013 Tex. App. LEXIS 12108,

at *7 (Tex. App.—Houston [1st Dist.] Sept. 26, 2013, pet. denied). One court

explained that “when a party makes an unqualified motion for entry of judgment . .

. the only issue is whether the trial court entered the judgment that the party asked

it to enter.” Sincerely Yours, L.P. v. NCI Bldg. Sys., L.P., No. 07-10-00280-CV,

2011 Tex. App. LEXIS 931, at *5 (Tex. App.—Amarillo 2011, pet. denied). That

court ultimately dismissed the appeal in that case, concluding:

If a party moves for entry of judgment without reservation, as [appellant] did in the present case, we hold that all appellate issues that challenge the judgment or any portion of the judgment that was unqualifiedly requested by that party and entered by the trial court are waived. If a party wants to preserve issues for attack on appeal, the party must reserve that right in its motion for entry of judgment by stating that it agrees only with the form of the judgment, and disagrees with the content and result of the judgment.

Id. at *6-7.

C. Jeffray Alter waived his right to appeal by unconditionally requesting the Final Judgment. Jeffray Alter did not follow any of the steps set forth in Fojtik or the cases

following it. In fact, he did exactly the opposite. Alter requested the trial court to

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