Rodriguez v. Dipp , 1977 Tex. App. LEXIS 2571 ( 1977 )

ON MOTION FOR REHEARING

Appellee has filed a motion for rehearing urging that the case should be remanded for a new trial rather than having judgment rendered for Appellants. Appellants have filed a reply to contest the motion for rehearing.

First, Appellee urges that the trial Court erred in excluding certain testimony concerning funds available to the Appellants which were not used to make payments on their note to the bank. We find no error in the trial Court’s ruling, but in any event, Appellee readily admits that the matter was not preserved by a cross-point of error. This issue may not be raised for the first time on motion for rehearing. Lafferty v. A. E. M. Developers and Builders Company, 483 S.W.2d 279 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.); Stanfield v. Butler, 475 S.W.2d 838 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

Appellee also urges that a take nothing judgment results in an unjust enrichment for the Appellants. Again, this is an issue raised for the first time on motion for rehearing. There is no pleading in the trial Court on a theory of unjust enrichment. No special issue was requested on such a theory of recovery, even though the case was fully developed in the trial Court. No contention was made in the original briefs that the case had been tried on the wrong theory. A remand can only result in another “bite at the apple” on a theory which was waived when it was neither pled nor submitted to the jury in the trial of the case. In such instances, justice does not require a remand. Owen v. Brown, 447 S.W.2d 883 (Tex.1969).

It is also urged that we erred in determining the amount of money Mr. Dipp had in the property which was foreclosed. We used the figures reflected in his testimony. But in any event, without establishing a ground of recovery, the amount of the loss is immaterial.

We have carefully considered the Appel-lee’s motion for rehearing, and it is overruled.

The Appellants, in their reply to the motion for rehearing, correctly point out that we were in error in our original opinion in holding that their motion for instructed verdict had not been re-urged at the conclusion of all of the evidence. The supplemental statement of facts does reflect that the motion was re-urged and overruled by the trial Court after both sides closed their case. Therefore, the Appellants’ Points of Error Nos. V and VII, which contend that the trial Court erred in failing to grant their motion for directed verdict because of the lack of pleadings and evidence to support a tort theory of recovery, should have been and are sustained.