                                 NO. 07-10-00280-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                  FEBRUARY 8, 2011


                       SINCERELY YOURS, L.P., APPELLANT

                                           v.

                  NCI BUILDING SYSTEMS, L.P., D/B/A METALLIC
                        BUILDING COMPANY, APPELLEE


             FROM THE 393RD DISTRICT COURT OF DENTON COUNTY;

        NO. 2006-60150-393; HONORABLE DOUGLAS M. ROBISON, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               ORDER OF DISMISSAL


       We withdraw our December 22, 2010 Order of Dismissal and substitute the

following:


       Appellee, NCI Building Systems, L.P., d/b/a Metallic Building Company (NCI),

filed a motion to dismiss the appeal filed by appellant, Sincerely Yours, L.P. (Sincerely

Yours). We grant the motion and dismiss the appeal.
      Sincerely Yours asserted claims of defective design and fabrication of roof

trusses that were manufactured by NCI. In 2004, during a thunderstorm, the roof of

Sincerely Yours’s warehouse collapsed causing the damages claimed by Sincerely

Yours in this suit. During the resulting protracted and hotly contested trial, Sincerely

Yours offered the testimony of Fred Anderson to establish the extent of its damages.

The trial court sustained NCI’s relevancy objection to Anderson’s testimony. Sincerely

Yours excepted to the trial court’s ruling. The trial court noted the exception and stated

its opinion that the exception had been perfected for the record.


      Despite the exclusion of Anderson’s testimony, the jury returned a verdict in favor

of Sincerely Yours.   Sincerely Yours then filed a motion to sign the judgment that

requested the trial court “sign a judgment based on the jury’s findings.” Attached to this

motion, Sincerely Yours included a proposed Final Judgment that reflected the findings

of the jury, noted that it was “approved as to form and substance,” and was signed by

the representatives of both parties to the present appeal. The trial court signed the

proposed final judgment without any changes. Subsequently, Sincerely Yours filed a

motion for new trial based, inter alia, on the exclusion of Anderson’s testimony. After

hearing, the trial court overruled Sincerely Yours’s new trial motion, and Sincerely Yours

timely perfected the present appeal.


      NCI has filed a motion to dismiss Sincerely Yours’s appeal. NCI contends that

Sincerely Yours waived its right to appeal by moving for final judgment that it approved

as to form and substance without expressly reserving the right to complain of the

judgment by appeal in its motion.       Sincerely Yours responds contending that the

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authority upon which NCI bases its motion applies only to agreed or consent judgments,

and that the judgment in the present case was clearly not agreed or the result of

consent.


       When a litigant moves the trial court to enter judgment, and the trial court enters

the proposed judgment, the motion for entry of judgment will generally be considered an

acquiescence in the verdict, which will foreclose a subsequent attack on appeal.

Menchaca v. Bishop, No. 14-94-00480-CV, 1996 Tex.App. LEXIS 1417, at *2

(Tex.App.—Houston [14th Dist.] April 11, 1996, no writ) (not designated for publication)

(citing Texas Commerce Bank v. Lebco Constructors, 865 S.W.2d 68, 80 (Tex.App.—

Corpus Christi 1993, writ denied), and Casu v. Marathon Refining Co., 896 S.W.2d 388,

389 (Tex.App.—Houston [1st Dist.] 1995, writ denied)). When a party moves for entry of

judgment for a particular amount, and the trial court renders judgment for that amount,

that party cannot challenge the judgment on appeal. Casu, 896 S.W.2d at 389; see

Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984). For a

party to preserve the right to appeal a judgment that it moved the trial court to enter, the

party must state in its motion for entry of judgment that it agrees only with the form of

the judgment, and note its disagreement with the content and result of the judgment.

BKT Corp. v. Express-News Corp., No. 04-96-00871-CV, 1997 Tex.App. LEXIS 5288,

at *6-*7 (Tex.App.—San Antonio October 8, 1997, no pet.) (not designated for

publication) (citing First Nat’l Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex.

1989)); see also Bonner v. Texas Children’s Hosp., No. 13-03-228-CV, 2006 Tex.App.

LEXIS 1331, at *5 (Tex.App.—Corpus Christi February 16, 2006, pet. denied) (mem.

op.); Nationscredit Corp. v. CSSI, The Support Group, Inc., No. 05-99-01612-CV, 2001
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Tex.App. LEXIS 1313, at *25 (Tex.App.—Dallas March 1, 2001, no pet.) (not designated

for publication); Menchaca, 1996 Tex.App. LEXIS 1417, at *3; Casu, 896 S.W.2d at

390.


       In the present case, Sincerely Yours moved the trial court to sign a judgment

based on the jury’s findings. This motion did not state that Sincerely Yours agrees only

with the form of the judgment nor does it note Sincerely Yours’s disagreement with the

content and result of the judgment.     In fact, the proposed judgment is signed by

Sincerely Yours as “approved as to form and substance.” The final judgment entered

by the trial court is the same judgment proposed by Sincerely Yours. Therefore, as

Sincerely Yours unreservedly invited the trial court to enter the judgment it entered, it

may not attack that judgment on appeal. See Casu, 896 S.W.2d at 390.


       In response to NCI’s motion to dismiss, Sincerely Yours contends that it did not

consent to the judgment entered by the trial court and, therefore, did not waive its

appeal. We agree with Sincerely Yours that the judgment entered in this case was not

a consent judgment. However, when a party makes an unqualified motion for entry of

judgment, the issue of consent is irrelevant. See id. When a waiver of appeal is based

on a party’s motion for entry of judgment, the only issue is whether the trial court

entered the judgment that the party asked it to enter. See id. In the present case, the

trial court signed the precise judgment proposed by Sincerely Yours. Thus, as to the

issue of whether Sincerely Yours waived its right to appeal by moving for the entry of

judgment, it is of no import that the judgment was not a consent judgment.




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       Finally, Sincerely Yours contends that the record of the trial and the hearing on

Sincerely Yours’s post-judgment motion for new trial reflects that the trial court was

aware of Sincerely Yours’s desire to appeal the exclusion of Anderson’s testimony

regarding damages. However, the trial court’s acknowledgement of Sincerely Yours’s

desire to appeal does not negate Sincerely Yours’s waiver of appeal. Clearly, a waiver

of appeal arising from an unqualified motion for entry of judgment would waive any error

occurring during trial, even if that claimed error was properly preserved.         See id.

Furthermore, a motion for new trial that is filed after the trial court has entered a

judgment that was unqualifiedly requested by the party moving for new trial does not

undo or cure the waiver of right to challenge the judgment requested by that party. See

Menchaca, 1996 Tex.App. LEXIS 1417, at *4.


       If a party moves for entry of judgment without reservation, as Sincerely Yours 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. See Fojtik, 775 S.W.2d at 633; Casu, 896 S.W.2d at 391-92.


       For the foregoing reasons, we grant NCI’s motion to dismiss Sincerely Yours’s

appeal.


                                                        Mackey K. Hancock
                                                             Justice


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