Preservation Pointer

Originally published by David Coale.

Another preservation point from EYM Diner LP v. Yousef, No. 05-19-00636-CV (Nov. 24, 2020) (mem. op.) (emphasis in original), involves the structure of the charge on negligence. Defendant (ACCSC) complained that  also argues it is entitled to rendition of judgment in its favor because the plaintiff (Youssef) did not object to the omission of certain definitions from the charge, citing United Scaffolding v. Levine, 537 S.W.3d 463 (Tex. 2017). The Fifth Court disagreed:

• “First, ACCSC’s reliance on United Scaffolding is misplaced because Yousef pleaded a general negligence claim against ACCSC and obtained a liability finding from the jury based on general negligence at trial. In United Scaffolding, the plaintiff, James Levine, pleaded one theory (premises liability) and obtained a jury finding on a different theory (general negligence).”
• “Second, United Scaffolding preserved its arguments that the verdict was based on an improper theory of recovery by filing a motion for judgment notwithstanding the verdict.  Here, ACCSC filed no such motion and makes no such argument. ACCSC merely asserts charge error here. ACCSC waived any complaint about the charge by failing to object to the charge as discussed above. And, by failing to file a motion for judgment notwithstanding the verdict or other qualifying post verdict motion raising this argument, ACCSC also waived any complaint that Yousef was not entitled to obtain a jury finding as to ACCSC’s general negligence.” (emphasis added in the above).

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