in the Matter of the Marriage of Nancy Jeanette Saxon and Albert Bryan Lewter, Jr. ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00295-CV

In the Matter of the Marriage of

Nancy Jeanette Saxon and

Albert Bryan Lewter, Jr.

From the 170th District Court

McLennan County, Texas

Trial Court No. 2005-1594-4

ORDER

          Appellee has filed a motion to disqualify Appellant’s counsel of record for this appeal.  The Court has determined that a hearing is necessary to develop the facts necessary to determine this motion. 

          Therefore, the Court refers this motion to the trial court with instructions to hear evidence, make findings and recommendations, and report them to the trial court clerk within 30 days from the date of this Order.  Cf. Tex. R. App. P. 20.1 (h)(4) (referring a contest of indigence to the trial court) and 29.4 (referring the enforcement of temporary orders to the trial court).  Supplemental clerk’s and reporter’s records are ordered to be filed within 45 days from the date of this Order.

                                                          PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Motion referred to trial court

Order issued and filed October 11, 2006

Do not publish

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MEMORANDUM OPINION

      Gregory Johnson appeals from a jury award of $25,000 and attorney’s fees of $7,000 relating to the dissolution of a law firm partnership, Malone & Johnson, following the death of his partner Lynn W. Malone. Johnson claims in five points that: (1) there is no evidence and factually insufficient evidence to support the jury’s finding on the net worth of the partnership, (2) there is no evidence and factually insufficient evidence to support the jury’s finding that Johnson owed money to Malone’s estate, (3) the trial court erred in granting judgment on attorney’s fees against Gregory Johnson because the jury was instructed to award attorney’s fees only if it found his former wife, Aimee Johnson, liable, (4) the trial court erred in granting judgment for attorney’s fees because the evidence does not support the judgment, and (5) the trial court erred in granting judgment for attorney’s fees because there is no legal basis to award attorney’s fees on the claims submitted to the jury. We affirm the judgment as modified.

ATTORNEY’S FEES

      In points three through five, Johnson contends that the trial court erroneously granted judgment against him on attorney’s fees. Appellee Giotes concedes these points on appeal. Accordingly we sustain points three through five.

NO EVIDENCE AND INSUFFICIENT EVIDENCE

      Johnson contends in points one and two that there is no evidence and factually insufficient evidence to support a jury finding on (1) the net worth of partnership and (2) whether Johnson owed money to Malone’s estate.

      There are five different ways to preserve a no evidence point of error: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury’s answer to a vital fact issue; or (5) a motion for new trial. Steve’s Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 477 (Tex. 1988); Crow v. Burnett, 951 S.W.2d 894, 899 (Tex. App.—Waco 1997, writ denied). Johnson filed a motion for new trial but failed to address the issue of no evidence to support the jury findings. Johnson did not utilize any of the other four preservation methods. As a result, Johnson has failed to preserve his no evidence complaints.

      Giotes argues that Johnson’s factual sufficiency points are a disguised complaint that incorrect legal issues were submitted in the court’s charge. We agree. While Johnson labels his points as factual sufficiency points, the actual substance of his arguments attack alleged omissions and commissions in the definitions and instructions that were submitted in the court’s charge. We review the sufficiency of the evidence based on the charge which was submitted to the jury, not the charge which should have been submitted to the jury. Osterburg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

      A party that fails to object to a defective submission of a question waives complaint on appeal. Tex. R. Civ. P. 278; Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). A party who is not relying on the question, instruction or definition, and fails to object to its omission from the charge, waives complaint on appeal. Tex. R. Civ. P. 278; Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 50 (Tex. App.—Corpus Christi 2001, no pet.). Here, Johnson made no objections. Johnson has therefore failed to preserve his complaint.

      Accordingly we overrule points one and two.

CONCLUSION

      We modify the judgment to delete the recovery of attorney’s fees from Gregory Johnson. We affirm the judgment as modified.

                                                             REX D. DAVIS

                                                             Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed as modified

Opinion delivered and filed April 2, 2003

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