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Rule 324. Prerequisites of Appeal (1988)

TEXT

(a) Motion for New Trial Not Required. A point in a motion for new trial is not a prerequisite to a complaint on appeal in either a jury or a nonjury case, except as provided in subdivision (b).

(b) Motion for New Trial Required. A point in a motion for new trial is a prerequisite to the following complaints on appeal:

(1) A complaint on which evidence must be heard such as one of jury misconduct or newly discovered evidence or failure to set aside a judgment by default;

(2) A complaint of factual insufficiency of the evidence to support a jury finding;

(3) A complaint that a jury finding is against the overwhelming weight of the evidence;

(4) A complaint of inadequacy or excessiveness of the damages found by the jury; or

(5) Incurable jury argument if not otherwise ruled on by the trial court.

(c) Judgment Notwithstanding Findings; Cross-Points.

When judgment is rendered non obstante veredicto or notwithstanding the findings of a jury on one or more questions, the appellee may bring forward by cross-point contained in his brief filed in the Court of Appeals any ground which would have vitiated the verdict or would have prevented an affirmance of the judgment had one been rendered by the trial court in harmony with the verdict, including although not limited to the ground that one or more of the jury's findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact, and the ground that the verdict and judgment based thereon should be set aside because of improper argument of counsel.

The failure to bring forward by cross-points such grounds as would vitiate the verdict shall be deemed a waiver thereof; provided, however, that if a cross-point is upon a ground which requires the taking of evidence in addition to that adduced upon the trial of the cause, it is not necessary that the evidentiary hearing be held until after the appellate court determines that the cause be remanded to consider such a cross-point.

Amended by order of July 15, 1987, eff. Jan. 1, 1988.

ADVISORY OPINIONS

(No. 94) Question: What are the requisites of the "points" in appellant's brief?

Answer: Quotations from Rule 418 and one of its appended notes, from an opinion of the Supreme Court clearly state and explain the requisites.

The pertinent part of Subdivision (b) of Rule 418 reads: "Such points will be sufficient if they direct the attention of the court to the error relied upon and they should ordinarily be so concisely stated that they may appear, separately numbered, on a single page of the brief. Assignments of error need' not be copied in the brief, and may be cited by reference only.”

Assignments of error are thus only referred to in the brief. They are not to be confused with "points" which are to be set out in the brief. Upon the subject of assignments of error see Rule 374 and compare Rules 324 and 325.

A note appended to Rule 418 reads: "The ‘points’ provided for are not to be formal propositions, but brief expressions of the questions involved in the appeal. For example, ‘First Point: The error of the court in refusing to charge upon the issue of appellant's liability under the family purpose doctrine. Germane to Assignment of Error No. 4, Transcript p. 38.’”

In Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), the Supreme Court, in disagreeing with expressions in the opinion of the Court of Civil Appeals upon this subject, said: "Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief. The object of a 'point' in the brief, as provided for in Rule 418, is to call the Court's attention to the questions raised and discussed in the brief. It is intended that the 'point' shall be short or in few words. It is not necessary that a 'point' be complete within itself, in the sense that it must, on its face, show that the matter complained of presents reversible error. If a 'point' is sufficient to direct the Court's attention to the matter complained of, the Court will look to the 'point' and the statement and argument thereunder to determine question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the 'point' in 'the light of the statement and argument thereunder."

See also to the same effect Federal Underwriters Exch. v. Lynch, 140 Tex. 516, 168 S.W.2d 653 (1943).

6 Tex. B.J. 142 (1943) reprinted in 8 Tex. B.J. 34 (1945).

(No. 112) Question: In a jury-tried case in the county court if a material special issue is not answered by the jury, and judgment is rendered for one of the parties, should there be a reversal as in Headstream v. Mangum, 174 S.W.2d 496 (Tex. Civ. App.-Amarillo 1943), by reason of the fact that the failure of the jury to answer such special issue is fundamental error?

Answer: We are of the opinion that the question should be answered in the negative because Rule 324 requires complaints of this sort to be made grounds of the motion for new trial. As we construe the opinion, this procedure was omitted in the trial court in the cited case. If it should be that a ground or grounds of the motion for new trial presented this complaint, there would be no need to resort to fundamental error in order to supply the contention in the appellate court, since under Rule 374 the grounds of the motion for new trial in a case like this constitute the assignments of error.

We do not undertake to answer questions in pending cases, but are informed that the above case has been completed.

7 Tex. B.J. 15 (1944) reprinted in 8 Tex. B.J. 41 (1945).