Santos San Juan D/B/A Santos Wrecker Repair v. Jose Segovia

Opinion

Affirmed and Memorandum Opinion filed July 7, 2016.

In The

Fourteenth Court of Appeals

NO. 14-14-00407-CV

SANTOS SAN JUAN D/B/A SANTOS WRECKER REPAIR, Appellant V.

JOSE SEGOVIA, Appellee

On Appeal from the 80th District Court Harris County, Texas

Trial Court Cause No. 2012-06117

MEMORANDUM OPINION

In two issues, appellant challenges the legal and factual sufficiency of the evidence to support the jury’s answer to Jury Question No. 3 regarding appellee’s damages. We affirm because appellant has not preserved error.

We may not consider unpreserved issues. Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012); see also Tex. R. App. P. 33.1; Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987). In a case tried to a jury, legal and factual sufficiency issues must be preserved in the trial court. See Daniels v.

Empty Eye, Inc., 368 S.W.3d 743, 748–49 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). A legal sufficiency challenge may be preserved in one of five ways: “(1) a motion for directed 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.” Id. A factual sufficiency challenge must be raised in a motion for new trial. Id. at 749 (citing Tex. R. Civ. P. 324(b)(2)).

Appellant filed a motion for new trial and challenged the legal and factual sufficiency of the evidence to support the jury’s answers to Question Nos. 1 and 2 concerning liability. But he did not challenge the sufficiency of the evidence supporting the jury’s answer to Question No. 3 or any of the elements of damages he now challenges on appeal. Thus, appellant’s motion for new trial did not preserve any error urged on appeal. See Halim v. Ramchandani, 203 S.W.3d 482, 487 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (no error preserved when arguments in motion for new trial differed from legal and factual sufficiency arguments made on appeal); see also City of Houston v. Precast Structures, 60 S.W.3d 331, 335–36 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

Neither the Reporter’s Record nor the Clerk’s Record show that appellant urged any of the other motions or objections necessary to preserve a legal sufficiency challenge. Thus, appellant has not preserved error. See Halim, 203 S.W.3d at 487. We affirm the trial court’s judgment.

/s/ Sharon McCally

Justice

Panel consists of Justices Christopher, McCally, and Busby.