Affirmed and Memorandum Opinion filed December 5, 2019.




                                    In the

                    Fourteenth Court of Appeals

                              NO. 14-17-00870-CV

                         SONYA ASHLEY, Appellant

                                       v.
     NORTH HOUSTON POLE LINE, L.P. AND JOAQUIN JIMENEZ,
                         Appellees

                   On Appeal from the 333rd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-71128

                         MEMORANDUM OPINION

      Appellant Sonya Ashley appeals from a final judgment awarding her
$207,617.44 in actual damages on her negligence claims against appellees North
Houston Pole Line, L.P. and Joaquin Jimenez. As we hold that Ashley waived her
two issues on appeal, we affirm.

                              I.   BACKGROUND

      Ashley claims that her vehicle was hit by a truck driven by Jimenez in the
course and scope of his employment with North Houston. Ashley brought suit
asserting negligence claims against North Houston and Jimenez. At trial, the jury
awarded Ashley $207,617.44 in actual damages. Ashley moved for judgment on
this verdict, submitting a proposed final judgment for $207,617.44 in actual
damages plus pre- and post-judgment interest and court costs.1 The trial court
signed the final judgment requested by Ashley, who then filed a notice of appeal.

                                   II.    ANALYSIS

      Ashley contends in two issues that (1) the trial court erred in admitting the
counter-affidavit and trial testimony of appellees’ expert Dr. David Randall and
(2) the amount of damages awarded by the jury was against the great weight and
preponderance of the evidence. We first address appellees’ contention that these
issues have been waived because Ashley moved for judgment on the jury’s verdict
and failed to preserve any complaints on appeal.

      A party who moves for judgment on the verdict and does not reserve the
right to complain may not take a position on appeal inconsistent with that part of
the judgment. Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321–22
(Tex. 1984); see First Nat’l Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex.
1989). To preserve the right to complain about a judgment on appeal, a movant for
judgment must make the trial court aware of its disagreement with the content and
result of the judgment. See Fojtik, 775 S.W.2d at 633 (no waiver when plaintiffs’
motion for entry of judgment referenced plaintiffs’ motion for new trial, stated that
plaintiffs agreed only with form of judgment, and specified plaintiffs’
disagreement with content and result of judgment).

      Here, Ashley moved for judgment on the jury’s verdict, attaching her

      1
        The judgment also reflected an agreement between Ashley and intervenor the City of
Houston regarding reimbursement of the city’s statutory workers’ compensation lien.

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proposed judgment as an exhibit, which the trial court signed as its final judgment.
She did not file a motion for a new trial or otherwise object to the verdict prior to
moving for judgment. Neither Ashley’s motion for entry of judgment, nor the final
judgment itself, references any disagreement with the jury’s verdict, nor do the
documents note that the proposed judgment was approved “in form only.”
Ashley’s proposed judgment, moreover, sought the same amount of actual
damages in the jury verdict—$207,617.44. Having moved for judgment on the
jury’s verdict without reservation, Ashley cannot now challenge that judgment on
appeal. See Litton, 668 S.W.2d at 321–22 (holding that movant could not challenge
on appeal actual damages it moved for in final judgment); see also Tex. R. Civ. P.
324(b) (requiring motion for new trial to complain of factual insufficiency of
evidence to support jury finding).

      Ashley claims that language in the final judgment stating it was “appealable”
preserves error. We disagree. The sentence Ashley refers to states, “This judgment
is final, disposes of all claims and all parties, and is appealable.” This boilerplate
language concerning the finality of the judgment fails to preserve a complaint for
appellate review. See Tex. R. App. P. 33.1(a) (general rule for preservation of
appellate complaints); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–93 (Tex.
2001).

      Ashley also claims that her notice of appeal demonstrates that she disagreed
with the judgment. Her postjudgment notice of appeal, however, does not satisfy
the requirements of Texas Rule of Civil Procedure 324(a), (b) and Texas Rule of
Appellate Procedure 33.1(a).

      The cases that Ashley cites in her briefing are distinguishable. While Ashley
argues that Fojtik favors her position, Ashley’s statement that the final judgment
“is appealable” does not comport with Fojtik, where the supreme court held that

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plaintiffs had preserved error by specifying in their motion for judgment that they
“disagree with the findings of the jury” and “feel there is a fatal defect [in the
judgment] which will support a new trial,” and by requesting entry of the proposed
judgment only if the trial court denied their motion for a new trial. 775 S.W.2d at
633. Ashley, by contrast, did not move for a new trial, and did not include any
language either in her motion for entry of judgment, or in the final judgment itself,
explicitly expressing any disagreement with the terms of the judgment. Ashley also
cites Melissinos v. Phamanivong, which involved a party who challenged the
proposed final judgment and also moved for a new trial—circumstances not
present here. 823 S.W.2d 339, 342 (Tex. App.—Texarkana 1991, writ denied).
Likewise, Andrew Shebay & Co., P.L.L.C. v. Bishop involved a losing party that
did not move for judgment, but instead approved the form and substance of the
prevailing party’s proposed judgment only after filing a motion for judgment
notwithstanding the verdict, thereby clearly expressing its disagreement with the
judgment ultimately issued. 429 S.W.3d 644, 647–48 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied). Ashley also cites Seeberger v. BNSF Railway Co. for the
proposition that, “[i]n applying Fojtik, [courts] have not required specific language
be used to reserve a right to appeal, but instead have focused on whether the trial
court was made aware that the party requesting judgment be entered disagreed with
the judgment.” No. 01-12-00583-CV, 2013 WL 5434141, at *3 (Tex. App.—
Houston [1st Dist.] Sept. 26, 2013, pet. denied) (mem. op.). We agree with this
statement, but disagree that Ashley took any steps to make the trial court “aware”
that she “disagreed with the judgment” she proposed.

      With regard to her argument that the trial court should have excluded the
testimony of Dr. Randall, Ashley cites Green v. Texas Workers’ Compensation
Insurance Facility, 993 S.W.2d 839 (Tex. App.—Austin 1999, pet. denied). In


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Green, the Third Court of Appeals held that the plaintiff had not waived his right
to appeal the exclusion of his expert at trial when the plaintiff had “never taken a
position inconsistent with his contention that the exclusion of [his expert]’s
testimony was error.” Id. at 843. Again, however, the factual settings are different.
Green moved for a new trial, which Ashley failed to do. Id. at 841. Green’s expert,
moreover, would have testified about a claim on which Green was denied relief at
trial. Id. at 842–43.

       In contrast to Green, Ashley challenges the jury verdict in her favor on
which she moved for judgment. Ashley admits that the substance of her issue
regarding Dr. Randall was that the court’s ruling affected the amount of damages
she was awarded, stating in her appellate brief that “the trial court’s failure to
exclude Dr. Randall constituted error and resulted in a woefully inadequate award
for damages by the jury.” Ashley waived this issue when she moved to enter
judgment on the verdict. The cases of this court applying Litton and Fojtik hold
that such evidentiary errors are waived unless the party complaining about such
errors and requesting the judgment expresses disagreement with its terms. See
Jones v. Union Pac. R.R. Co., No. 14-02-01289-CV, 2004 WL 1688175, at *2
(Tex. App.—Houston [14th Dist.] July 29, 2004, pet. denied) (mem. op.)
(“Because appellant moved for judgment based on the jury’s finding of his loss of
earning capacity, he cannot now take the inconsistent position that erroneously
admitted evidence resulted in an improper judgment.”); Menchaca v. Bishop, No.
14-94-00480-CV, 1996 WL 170272, at *2 (Tex. App.—Houston [14th Dist.] Apr.
11, 1996, no writ) (mem. op., not designated for publication) (“It is
counterintuitive for appellant to move the trial court to enter a particular judgment,
and subsequently, complain that the same judgment was improper based on the
trial court’s evidentiary rulings.”).


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      Accordingly, we conclude that Ashley’s two issues are waived.

                               III.   CONCLUSION

      We affirm the judgment of the trial court.




                                      /s/       Charles A. Spain
                                                Justice



Panel consists of Justices Wise, Zimmerer, and Spain.




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