Opinion issued September 26, 2013




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-12-00583-CV
                            ———————————
                      DONALD SEEBERGER, Appellant
                                        V.
                    BNSF RAILWAY COMPANY, Appellee


                    On Appeal from the 269th District Court
                             Harris County, Texas
                       Trial Court Case No. 2009-67871


                          MEMORANDUM OPINION

      Appellant, Donald Seeberger, sued appellee, BNSF Railway Company,

under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51-60. On

appeal, Seeberger contends that the trial court erred by granting his motion for new
trial only as to damages, but not liability. We affirm the judgment of the trial

court.

                                    BACKGROUND

         Seeberger is a railroad conductor for BNSF. In 2008, he stepped into a hole

while working at a BNSF rail yard and injured his left knee. His knee later

required surgery.

         A. The first trial

         Seeberger sued BNSF, alleging that “[t]he injuries to Plaintiff were due in

whole or in part to the negligence of Defendant, its agents, servants or employees

acting in the course and scope of their employment.” Seeberger’s petition also

alleged that “Defendant failed to provide Plaintiff with a reasonably safe place to

work, failed to properly inspect Plaintiff’s work area, failed to maintain and repair

Plaintiff’s work area, and failed to warn Plaintiff of the dangerous conditions.”

         At the conclusion of the first trial, the jury found that the negligence of both

Seeberger and BNSF caused the injury, and allocated 70% responsibility to

Seeberger and 30% responsibility to BNSF. The jury’s total damages award of

$41,500 did not include compensation for any past or future physical pain, mental

anguish, or physical impairment.

         Seeberger filed a motion for new trial, complaining that the jury’s failure to

award damages for pain, mental anguish, or physical impairment was against the


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great weight and preponderance of the uncontroverted evidence and requesting a

new trial on liability and damages. The trial court agreed that the evidence was

factually insufficient, “conclud[ing] that the jury’s answer for past pain and mental

anguish is (1) so against the great weight and preponderance of the evidence as to

be manifestly unjust, and (2) completely lacking any probative facts for support.”

Over Seeberger’s objection, however, the trial court granted his motion only in

part, ordering a new trial limited to damages. In its order, the court explained,

      The question of pain and mental anguish damages is interwoven with
      the question of past medical expenses, physical impairment, and lost
      earning capacity. Some of the same evidence establishing these other
      damage categories is also probative of the amount and extent of pain
      and anguish the plaintiff may have experienced. Therefore, the Court
      concludes that the new trial should not be limited to the amount of
      past pain and mental anguish damages plaintiff allegedly suffered.
      Instead, the new trial shall extend to all damage categories pleaded by
      the plaintiff and supported by the evidence, not just past pain and
      mental anguish. But the damages that plaintiff suffered is not so
      interwoven with the determinations of negligence or percentage
      responsibility as to require a new trial on those issues; instead, the
      Court concludes that a partial new trial, limited to damages, will be
      sufficient.

      B. The second trial

      At the beginning of the second trial, Seeberger objected again to limiting the

trial to only damages, and not liability. The trial court overruled that objection.

The second jury then awarded Seeberger $202,600 in total damages, which

included an award for past and future pain and mental anguish.



                                          3
      Seeberger filed a motion for entry of final judgment on that verdict

requesting that the court apply the liability percentages from the first trial to the

damages found in the second trial and sign a final judgment. The motion to enter

judgment did not indicate Seeberger’s disagreement with the proposed disposition,

nor did it indicate that he intended to appeal.       The attached proposed final

judgment, however, recited that Seeberger “APPROVED AS TO FORM ONLY;

PLAINTIFF DISAGREES WITH THE RESULT OF THE JUDGMENT AND

INTENDS TO CHALLENGE THE JUDGMENT ON APPEAL.” The trial court

signed that proposed final judgment.

      Seeberger filed a motion for new trial from that judgment, reurging his

complaint that it was error to order a new trial limited to damages. That motion

was overruled by operation of law.

                              ISSUES ON APPEAL

      Seeberger timely appealed, arguing that the “trial court erred by limiting its

grant of a new trial in a personal injury case to damages only in contravention of

Tex. R. Civ. P. 320.” In response, BNSF contends that (1) separate trials are

permitted by federal law in this case, and (2) Seeberger waived his right to appeal

from the trial court’s judgment by filing an unqualified motion for entry of

judgment.




                                         4
                                     WAIVER

      We begin with the threshold issue of waiver. BNSF contends Seeberger has

waived his right to appeal “because Seeberger is challenging a judgment that he

asked the trial court to enter.” Seeberger responds that he “clearly apprised the

trial court that he disagreed with the content and result of the judgment, intended to

appeal it, and therefore did not waive his right to an appeal.” We agree with

Seeberger.

   A. Applicable Law

      Generally, a party who files a motion for rendition of a judgment waives its

right to complain about that judgment. See Litton Indus. Prods., Inc. v. Gammage,

668 S.W.2d 319, 322 (Tex. 1984). When a party asks the trial court to render

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

that party cannot challenge the judgment on appeal. Casu v. Marathon Ref. Co.,

896 S.W.2d 388, 389 (Tex. App.—Houston [1st Dist.] 1995, pet. denied) (citing

Transmission Exch., Inc. v. Long., 821 S.W.2d 265, 275 (Tex. App.—Houston [1st

Dist.] 1991, writ denied)).

      The supreme court has recognized, however, that “[t]here 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.” First Nat’l Bank v.

Fojtik, 775 S.W.2d 632, 633 (Tex. 1989) (per curiam). Following a jury verdict in


                                          5
plaintiffs’ favor on liability but awarding no damages, the plaintiffs in Fojtik filed

a motion for judgment stating,

       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.   The supreme court characterized this as an appropriate exercise of the

plaintiffs’ right to initiate the appellate process. Id.

       The Fojtik court distinguished its facts from those presented in Litton

Industrial Products Inc. v. Gammage, 668 S.W.2d 319, 322 (Tex. 1984). In Litton,

the defendant moved for judgment in the amount of actual damages found by the

jury and attempted to reserve in a separate trial brief the right to “challenge any

adverse judgment based upon the verdict.” Litton Indus., 668 S.W.2d at 321–22.

The supreme court “disapproved” of the defendant’s attempt to have it “both

ways” by “induc[ing] the trial court on the one hand to render a judgment, but

reserv[ing] in a brief the right for the movant to attack the judgment if the court

grants the motion.” Id. at 322. Ultimately, the court concluded that the trial brief

was not properly a part of the appellate record and, as a result, the appellant’s

reservation was not in the record and could not be considered. Id. at 322.

       In applying Fojtik, we have not required specific language be used to reserve

a right to appeal, but instead have focused on whether the trial court was made

                                            6
aware that the party requesting judgment be entered disagreed with the judgment.

E.g., Andrew Shebay & Co. P.L.L.C. v. Bishop, ___ S.W.3d ___, ___ , 2013 WL

1844213, at *1 (Tex. App.—Houston [1st Dist.] May 2, 2013, pet. filed) (holding

that “clear objections in the trial court or post-trial proceedings evidencing

disagreement with the judgment are sufficient” to preserve right to appeal, even if

proposed judgment states it is “approved as to substance and form”); Beal Bank,

SSB v. Biggers, 227 S.W.3d 187, 191 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (“Although the Bank’s reservation of its right to appeal the judgment would

have been clearer had it followed the language in Fojtik, we conclude that the

Bank’s motion was sufficient by its equivocal language and the statement of

approval as to form only to indicate that its alternative request was made in

deference to the trial court’s expressed construction of the guaranty contract and

was not a motion for judgment in that amount.”).

   B. Application

      Relying primarily on Casu v. Marathon Refining Co., 896 S.W.2d 388 (Tex.

App.—Houston [1st Dist.] 1995, pet. denied), a pre-Fojtik case, BNSF argues that

“Seeberger’s motion for entry of judgment is unqualified and did not ‘express any

disagreement with the content or result of the judgment’ that he is now challenging

on appeal” and that “an unqualified motion for judgment waives the right to attack

that judgment, regardless of what the party notes on the proposed judgment itself.”


                                        7
In Casu, the appellant filed a motion to enter judgment and a proposed judgment

without any language indicating it intended to challenge the judgment on appeal.

Casu, 896 S.W.2d at 389–90. We held that the fact that the appellant requested

that the judgment be entered, without any indication that the appellant disagreed

with the judgment, waived appellant’s right to appeal the judgment. Id. at 389.

      We agree with Seeberger that Casu is distinguishable. BNSF’s singular

focus is on the lack of a reservation of right to appeal in Seeberger’s motion for

entry of judgment. But a review of the entire record and circumstances is more

appropriate in determining whether a party moving for judgment has waived its

right to appeal.   For example, in DeClaris Associates v. McCoy Workplace

Solutions, L.P., the court was faced with both a proposed judgment entitled

“Agreed Judgment” that had been signed by counsel for both parties as “approved

to both form and substance” and a joint motion for entry of judgment, but

ultimately the court concluded that “[u]nder the circumstances” there was not

sufficient indication that “the parties had reached an agreement regarding

disposition or that [appellant] waived its right to appeal the judgment.”         331

S.W.3d 556, 560 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The court

explained that the circumstances as a whole had to be taken into account,

      Here, DeClaris did not include a disclaimer in the joint motion as
      recommended in Fojtik. However, given the consistently contested
      nature of the proceedings, as well as the simplicity of the issues
      involved—a single breach-of-contract claim went to the jury on which
                                         8
      DeClaris completely lost—it is unlikely that the judge or McCoy was
      misled into thinking DeClaris did not plan to appeal simply because
      DeClaris joined McCoy’s motion for judgment. Cf. Nipper–Bertram
      Trust v. Aldine I.S.D., 76 S.W.3d 788, 794 (Tex. App.—Houston
      [14th Dist.] 2002, pet. denied) (holding record did not demonstrate
      disagreement with judgment where party did not file motion for new
      trial and counsel acknowledged in oral argument that party
      affirmatively agreed to judgment). The judge had, in fact, already
      ruled against DeClaris’s positions on the few key issues several times
      (denying DeClaris’s motions for summary judgment and directed
      verdict and overruling its objections to the charge). The trial court
      had made its rulings, and DeClaris had consistently expressed
      disagreement with those rulings. Cf. In re Bahn, 13 S.W.3d 865, 875
      (Tex. App.—Fort Worth 2000, orig. proceeding) (“A party should not
      be estopped from challenging a court’s order when the party provides
      to the court a proposed order following what it believes was the
      court’s ruling at the hearing, and the court signs it.”); John Masek
      Corp. v. Davis, 848 S.W.2d 170, 174–75 (Tex. App.—Houston [1st
      Dist.] 1992, writ denied) (holding that “merely provid[ing] a draft
      judgment to conform to what the court had announced would be its
      judgment” does not result in waiver of an appeal).

      In short, by joining the motion for judgment under the circumstances
      of this case, DeClaris cannot be said to have invited the trial court into
      error. See John Masek, 848 S.W.2d at 174–75. As suggested in Fojtik,
      DeClaris was clearly desirous of initiating the appellate process and
      therefore moved the court to render judgment according to the court’s
      prior rulings on the simple issues involved. 775 S.W.2d at 633.
      DeClaris did not waive its right to appeal.
Id. at 567 (footnote omitted).

      While Seeberger did not reserve a right to appeal in his motion for entry of

judgment, his proposed judgment—signed by the court as the final judgment—

contained an endorsement making clear his intention to appeal the judgment,




                                          9
      APPROVED AS TO FORM ONLY; PLAINTIFF DISAGREES
      WITH THE RESULT OF THE JUDGMENT AND INTENDS TO
      CHALLENGE THE JUDGMENT ON APPEAL

      Moreover, Seeberger repeatedly made the court aware that he disagreed with

its decision to order a new trial only as to damages. After the first trial, the trial

court asked for, and considered, additional briefing from both parties about the

appropriate scope of any new trial. In both his first motion for new trial and his

subsequent briefing, Seeberger argued that a new trial on both liability and

damages was required. After the trial court granted a new trial only as to damages,

Seeberger’s counsel objected at the beginning of the second trial, stating that “for

purposes of preserving the record,” he wanted to again reiterate Seeberger’s view

that the new trial should include liability. The court’s response demonstrates that it

was aware of Seeberger’s objection:

      Well, it’s on the record; and then, you already have your motion on
      file and the order from the Court. So it would seem that you have
      preserved your record; but if there’s something else you need to
      preserve about it, fine. The objection is overruled. The request for a
      full trial is denied. We are going to try the case on damages, but for
      all damages, not just limited to pain and suffering.

Following the second trial, Seeberger again filed a motion for new trial, arguing

again that the trial court erred in limiting the second trial to damages only, and

requesting that the “trial court grant him a new trial on both liability and damages.”

      On this record, Seeberger cannot be said to have invited the trial court into

error, John Masek Corp. v. Davis, 848 S.W.2d 170, 174–75 (Tex. App.—Houston

                                          10
[1st Dist.] 1992, writ denied); nor does the record reflect that “the judge or

[appellee] was misled into thinking [he] did not plan to appeal.” DeClaris Assocs.,

331 S.W.3d at 561.         Rather, Seeberger noted his objection on the proposed

judgment by limiting approval to form only, which “does not waive any error in

the proceedings or incident to the judgment itself,” Cisneros v. Cisneros, 787

S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ), and lodged “clear objections

in the trial court [and] post-trial proceedings evidencing disagreement with the

judgment.” Andrew Shebay & Co., P.L.L.C., __ S.W.3d at __, 2013 WL 1844213,

at *1.

         Seeberger did not waive his right to appeal.

                               LIMITED NEW TRIAL

         We thus turn to the merits of Seeberger’s appeal.       In a single issue,

Seeberger asserts that the trial court erred by limiting its grant of a new trial to

damages only.

   A. Applicable Law

         We review a trial court’s ruling on a motion for new trial for an abuse of

discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009).

A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner, or if it acts without reference to any guiding rules or principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). A trial court’s


                                           11
clear failure to analyze or apply the law correctly constitutes an abuse of

discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding);

Cayton v. Moore, 224 S.W.3d 440, 445 (Tex. App.—Dallas 2007, no pet.).

      “As a general matter, FELA cases adjudicated in state courts are subject to

state procedural rules, but the substantive law governing them is federal.” St.

Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S. Ct. 1347 (1985);

Mitchell v. Mo-Kan.-Tex. R.R. Co., 786 S.W.2d 659, 661 (Tex. 1990) (on reh’g).

Rule 320 of the Texas Rules of Civil Procedure provides that “a separate trial on

unliquidated damages alone shall not be ordered if liability issues are contested.”

The Tyler Court of Appeals has concluded, however, that the right to not have to

relitigate liability issues under FELA is “too substantial a part of the rights

accorded by the Act to permit it to be classified as a mere ‘local rule of

procedure.’” Mo. Pac. R.R. Co. v. Whitehead, 862 S.W.2d 632, 636 (Tex. App.—

Tyler 1993, writ dism’d) (citing Dice v. Akron, Canton & Youngstown R.R. Co.,

342 U.S. 359, 363, 72 S. Ct. 312, 315 (1952)).

      Federal courts recognize partial new trials may be proper if “it clearly

appears that the issue to be retried is so distinct and separate from the others that a

trial of it alone may be without injustice.” Westbrook v. Gen. Tire & Rubber Co.,

754 F.2d 1233, 1242 (5th Cir. 1985) (citing Gasoline Prods. Co. v. Champlin Ref.

Co., 283 U.S. 494, 500, 51 S. Ct. 513, 515 (1931) and Lucas v. American Mfg. Co.,


                                          12
630 F.2d 291, 294 (5th Cir. 1980)); cf. Kan. City S. Ry. Co. v. Stokes, 20 S.W.3d

45, 51 (Tex. App.—Texarkana 2000, no pet.) (recognizing that, in a FELA case, it

may be appropriate to remand only a portion of the case for a new trial, but

declining to do so on facts presented because “the finding of damages cannot be

separated from the erroneous jury instruction.”).

   B. Application

      Seeberger notes that FELA is a remedial and humanitarian statute. See

generally King v. S. Pac. Transp. Co., 855 F.2d 1485, 1490 & n.1 (10th Cir. 1988)

(describing purposes of FELA and its supplements and amendments, which are to

be “construed liberally to carry out their remedial and humanitarian purposes”)).

And he emphasizes that “partial reversals and remands in FELA cases are not

favored unless it conclusively appears that such a disposition will not prejudice the

party which has not prevailed on appeal.” Blue v. W. Ry. of Ala., 469 F.2d 487, 497

(5th Cir. 1972). Accordingly, Seeberger asserts, “the trial court had an obligation

to apply FELA in a way which compassionately considered his interest, as long as

BNSF’s interests were not unfairly prejudiced.”

      In response, BNSF argues that this case squarely meets the requirements for

a damages-only retrial under federal law, i.e., the “issue to be retried is distinct and

separable from the other issues,” and the “other party will not be prejudiced by a

partial retrial.” BNSF contends that the trial court was correct in determining that


                                          13
damages were not so intertwined with liability as to require a new trial, and it

points out that Seeberger has not articulated how he was prejudiced by a partial

retrial.

       We agree with BNSF that Seeberger has not demonstrated that the trial court

abused its discretion in ordering a partial retrial. Seeberger acknowledges that

partial retrials are permissible under FELA, but contends that, given the purposes

behind FELA, partial retrials should only be granted when the plaintiff—rather

than the defendant—benefits from that approach. In support, he cites several cases

in which partial retrials have been permitted at the plaintiffs’ request. E.g., Trejo v.

Denver & Rio Grande W. R.R. Co., 568 F.2d 181, 185 (10th Cir. 1977) (“The

erroneous instructions regarding damages in no way prejudiced [the liability]

finding, and the Company is not entitled to a second chance to convince another

jury that it was not negligent.”); Paluch v. Erie Lackawanna R. Co., 387 F.2d 996,

1000 (3d Cir. 1968) (“Since the issue of damages in this case is distinct and

separable from the issue of liability, and since the interests of justice will be best

served by doing so, a new trial will be ordered restricted to the issue of damages.”);

Crador v. Boh Bros., Inc, 473 F.2d 1040, 1041 (5th Cir. 1973) (“Finding that a

partial reversal and remand will prejudice the position of neither party, see Blue

Western Railway of Alabama, [469 F.2d at 487], we remand solely for a

redetermination of damages.”).


                                          14
       While it is usually the plaintiff who benefits from not having to relitigate

liability, we do not find Seeberger’s argument that partial remands are only

appropriate when the plaintiff benefits to be supported by the cases he cites.

Rather, as the trial court noted here, the relevant question is whether the issues are

separable, and whether the party seeking a full retrial would be prejudiced by a

partial retrial.   Williams v. Slade, 431 F.2d 605, 608 (5th Cir. 1970) (citing

Gasoline Prods., 283 U.S. at 500).

       Full retrials have been required when erroneous jury instructions rendered it

impossible to determine what the jury’s verdict would have been based on a correct

charge. See Rivera v. Farrell Lines, Inc, 474 F.2d 255, 259 (2d Cir. 1973) (“Since

we are left in the dark as to what the total award would have been absent the

finding of contributory negligence and the extent to which that finding affected the

verdict, as well as to whether there will be such a finding on a property charge, we

remand for a new trial on all issues.”). A full retrial may also be required if

circumstances “indicate the possibility of a compromise verdict” or “jury

misconduct.” Levesque v. Marine Drilling Co., 783 F. Supp. 302, 306 (E.D. Tex.

1992) (citing Hadra v. Herman Blum Consulting Eng’rs, 632 F.2d 1242 (5th Cir.

1980)).

       In this case, the first jury found both Seeberger and BNSF at fault,

apportioned 70% fault to Seeberger and 30% fault to BNSF, and awarded


                                         15
Seeberger $41,500 in total damages, which did not include any amounts for pain

and suffering.     The second jury, which considered damages only, awarded

Seeberger $202,600 in total damages, which included damages for pain and

suffering. The court’s final judgment reduced the total damages by the 70%

contributory negligence found by the first jury.

       While Seeberger asserts generally in his brief that the second jury should

have revisited liability and percentages of fault because the “issues of liability and

damages are intertwined,” he does not explain how the jury’s determination about

the amount of damages suffered would have required it to consider evidence of

fault. And he does not articulate how he was prejudiced by the court’s refusal to

order a new trial on the issue of liability, other than the fact that the percentages

found by the first jury were not as favorable as he would have liked.1

       The trial court did not abuse its discretion in concluding that the questions of

liability and percentages of fault were separate from the issue of Seeberger’s total

damages. And neither party has demonstrated any prejudice flowing from a partial

retrial.

       Lastly, Seeberger contends that Texas procedural law prohibits a partial

retrial in this context. See TEX. R. CIV. P. 320 (“[A] separate trial on unliquidated


1
       As BNSF notes, Seeberger has not challenged the legal or factual sufficiency of
       the evidence to support the first jury apportionment of fault, nor has he argued that
       the jury was not properly instructed or charged on this issue.
                                            16
damages alone shall not be ordered if liability issues are contested.”). While

Seeberger concedes that the Tyler Court of Appeals in Missouri Pacific Railroad

Co. v. Whitehead, 862 S.W.2d 632, 636 (Tex. App.—Tyler 1993, writ dism’d) held

that rule 320 does not prohibit a partial new trial in a FELA case, he again argues

that result was driven by the court’s desire to “protect the injured railroad worker

from unfair prejudice.” While the Whitehead court was focused on the rights of

the plaintiff—the party seeking to limit retrial to damages only in that case—we

read Whitehead as recognizing that federal rules governing retrials in FELA are

substantive and should be followed by state courts in FELA cases, not as carving

out a different rule that only plaintiffs were entitled to benefit from partial retrials.

See Whitehead, 862 S.W.2d at 636 (“[I]t is the opinion of this Court that the rights

of the railroad employees to not have to relitigate liability issues under these

circumstances, by federal interpretation, has become bound up with substantive

rights and is ‘too substantial a part of the rights accorded by the Act to permit it to

be classified as a mere local rule of procedure.’” (quoting Dice v. Akron, Canton &

Youngstown R. Co., 342 U.S. 359, 363 (1952)). Seeberger has not demonstrated

that rule 320 prohibits a partial retrial in these circumstances.

      We overrule Seeberger’s sole issue.




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                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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