Paige Dunlap-Bell v. Arvidas Gyatsyavichyus ( 2019 )

Opinion issued October 31, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00170-CV
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PAIGE DUNLAP-BELL, Appellant
V.
ARVIDAS GYATSYAVICHUS, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2016-29870
MEMORANDUM OPINION
Paige Dunlap-Bell sued Arvidas Gyatsyavichus for injuries she allegedly
sustained when his vehicle struck hers. Gyatsyavichus conceded fault for the
collision. The sole issue submitted to the jury was the amount of damages, if any,
that Dunlap-Bell was entitled to for physical pain and mental anguish, physical
impairment, and medical expenses. The jury awarded Dunlap-Bell no damages. She
appeals, contending that the award of no damages is against the great weight and
preponderance of the evidence. We affirm.
BACKGROUND
At trial, Dunlap-Bell and Gyatsyavichus disputed the severity of the collision
and whether she had been injured in the collision. They also disputed whether the
injuries she claimed had been caused by a later slip-fall accident.
In a unanimous verdict, the jury did not award Dunlap-Bell any damages. In
accord with the verdict, the trial court entered a take-nothing judgment. Dunlap-Bell
did not move for a new trial or file any other post-judgment motions.
In her sole appellate issue, Dunlap-Bell contends that the jury’s finding that
she did not suffer personal-injury damages as a result of the collision is against the
great weight and preponderance of the evidence. Gyatsyavichus disagrees.
ERROR PRESERVATION
Excepting fundamental error, error preservation is not optional. See TEX. R.
APP. P. 33.1(a); USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 510–14 (Tex.
2018). The error asserted by Dunlap-Bell is not fundamental. See Menchaca, 545
S.W.3d at 511–12 (fundamental error restricted to errors that are jurisdictional or
adversely affect public’s—as opposed to parties’—interests).
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To raise certain complaints on appeal, a party must first raise them in the trial
court in a motion for new trial. TEX. R. CIV. P. 324(b). These complaints include a
complaint of factual insufficiency to support a jury finding, a complaint that a jury
finding is against the overwhelming weight of the evidence, and a complaint that
damages found by a jury are inadequate or excessive. TEX. R. CIV. P. 324(b)(2)–(4).
Absent a motion for new trial, these particular complaints are not preserved for
appellate review. See, e.g., In re A.C., 394 S.W.3d 633, 639 (Tex. App.—Houston
[1st Dist.] 2012, no pet.) (factual sufficiency complaint waived because party did not
file motion for new trial); Roberson v. Collins, 221 S.W.3d 239, 242 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (same).
A complaint that a jury finding is “against the great weight and preponderance
of the evidence” is “a complaint about factual sufficiency.” Pitts & Collard, L.L.P.
v. Schechter, 369 S.W.3d 301, 322 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Dunlap-Bell did not file a motion for new trial. She therefore failed to preserve for
our review her complaint that the jury’s finding of no personal-injury damages is
against the great weight and preponderance of the evidence. See id. (party waived
complaint that jury’s award of no attorney’s fees was against great weight and
preponderance of evidence by not filing motion for new trial); see also In re C.E.M.,
64 S.W.3d 425, 428 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (sole way to
preserve factual sufficiency complaint is to make it in new-trial motion).
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Because Dunlap-Bell failed to preserve for appellate review her sole issue, we
overrule it. See TEX. R. CIV. P. 324(b)(2)–(4); see also TEX. R. APP. P. 33.1(a)(1)(B)
(compliance with rules of civil procedure required to preserve complaint).
CONCLUSION
We affirm the trial court’s judgment.
Gordon Goodman
Justice
Panel consists of Justices Lloyd, Goodman, and Landau.
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