Concurring opinion issued December 31, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-17-00681-CV
                            ———————————
            CHARLES WALL AND CECELIA WALL, Appellants
                                         V.
                       STATE FARM LLOYDS, Appellee


                    On Appeal from the 269th District Court
                             Harris County, Texas
                       Trial Court Case No. 2014-20688


                            CONCURRING OPINION

      Appellee State Farm challenges appellate jurisdiction over this appeal, and we

are obliged to address that issue.1 State Farm takes the Walls to task for identifying


1
      TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion
      that is as brief as practicable but that addresses every issue raised and
      necessary to final disposition of the appeal.”); Kilroy v. Kilroy, 137 S.W.3d
an order denying a motion for new trial as a subject of the notice of appeal. The full

text of the notice of appeal reads as follows:

            COMES NOW Plaintiffs Charles and Cecelia Wall and file this
      Notice of Appeal and respectfully show the following:

             Notice is hereby given that Plaintiffs appeal to the Court of
      Appeals for the First or Fourteenth District of the State of Texas from
      the Court’s August 21, 2017 Order Denying Plaintiffs’ Motion for New
      Trial.

State Farm contends that this notice of appeal challenged only an unappealable

order—the denial of a motion for new trial—and not the appealable final judgment

in the case.

      Our jurisdiction over the appeal from the final judgment is unimpaired by the

notice of appeal’s identification of an interlocutory order that would not be

appealable in the absence of a final appealable judgment. The filing of a notice of

appeal by any party invokes the appellate court’s jurisdiction over all parties to the

trial court’s judgment.2 Any party’s failure to take any other step required by the




      780, 783 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“As an initial
      concern, we must address the issue of our jurisdiction over this matter before
      we can reach the merits of the parties’ arguments.”); cf. Phan v. Le, 426
      S.W.3d 786, 792 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (noting that
      appellate courts also may raise and address jurisdictional issues of their own
      accord).
2
      See TEX. R. APP. P. 25.1(b).

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appellate rules (such as the failure to state the date of the appealed judgment3) does

not deprive the appellate court of jurisdiction but is ground only for the appellate

court to act appropriately.4 The notice of appeal was sufficient to invoke our

jurisdiction, and State Farm’s objection to our appellate jurisdiction should be

overruled.5

      With respect to the contract claim, the jury was asked whether State Farm

failed to comply with the insurance policy. The jury responded: “no.” On appeal, the

Walls contend that they proved their contract claim as a matter of law, and a

judgment notwithstanding the verdict should have been granted in their favor despite

the jury’s verdict. The court states that the Walls did not demonstrate their

entitlement to JNOV because their argument is entirely based on the timing of State

Farm’s payment, not its failure to pay as specified in the jury instruction. However,

this was not State Farm’s argument, and the court gives no indication why it fails to




3
      See TEX. R. APP. P. 25.1(d)(2).
4
      See TEX. R. APP. P. 25.1(b).
5
      Id.; TEX. R. APP. P. 47.1; see also Ryland Enter., Inc. v. Weatherspoon, 355
      S.W.3d 664, 665 (Tex. 2011) (per curiam); Verburgt v. Dorner, 959 S.W.2d
      615, 616 (Tex. 1997) (“appellate courts should not dismiss an appeal for a
      procedural defect whenever any arguable interpretation of the Rules of
      Appellate Procedure would preserve the appeal”).

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accept or even discuss any of the responses made in the appellee’s brief. The jury

question at issue read as follows:

             Did State Farm fail to comply with the Policy?

                   State Farm failed to comply with the Policy if it failed to
                   pay for the damages that resulted from physical loss to the
                   dwelling on the Property caused by wind or hail damage.

             Answer “Yes” or “No.”

             Answer:      NO

The jury instruction identified a way that State Farm could have failed to comply

with the Policy: by failing to pay for the damages. As phrased, the instruction did

not purport to say that this was the only way State Farm could have failed to comply

with the policy.

      In addition to the evidence that it paid the cost of the Walls’ roof replacement,

State Farm argues on appeal that it presented significant evidence that the roof did

not sustain any hail or wind damage, based on the testimony of the first appraiser,

who inspected the roof, and the third appraiser, who inspected the garage doors and

fence. Based on evidence presented to the jury that the Walls’ claimed physical loss

to the dwelling on the property was not caused by wind or hail damage, I conclude

that the trial court properly declined to grant JNOV on the contract claim.

      The independence implied in the judicial function means that judges are not

constrained to choose between opposing positions proposed by legal adversaries.


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But while we are free to decide issues for the reasons that seem most sensible to us,

there generally ought to be a good reason for deciding an issue on a basis that was

not suggested by any party. State Farm has presented sound legal arguments for

affirming the judgment in this case. I do not agree with the alternative analysis

proposed by the court in all of its particulars. Accordingly, I concur solely in the

judgment.



                                             Michael Massengale
                                             Justice

Panel consists of Justices Jennings, Higley, and Massengale.

Justice Massengale, concurring in the judgment.




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