Ch 44:6 Preserving Error in Trial Court

Question 1

[GR] To complain of error on appeal, it is necessary to preserve the complaint in the trial court.

Answer 1

BUT, different rules apply for Jury Trial vs. Nonjury Trial, when preserving a complaint regarding the sufficiency of the evidence.

Question 2

Jury Trial:

An attack on the sufficiency of the evidence in a jury trial must be preserved in the trial court.

Answer 2

4 Methods of Preserving a Legal Sufficiency complaint in a Jury Trial:

1. motion for directed verdict;
2. objection to submission of a question or instruction to the jury;
3. motion to disregard the jury’s answer to a vital fact issue; and
4. motion for judgment n.o.v.

Question 3

One other weaker method is …

Answer 3

A legal sufficiency point may also be preserved by motion for new trial, but if sustained will result in a remand and not a rendition.

Question 4

An attack on the factual sufficiency of the evidence in a jury trial can be preserved by …

Answer 4

Motion for New Trial, and when attacking damages, including punitive damages, as excessive, by a motion for remittitur.

Question 5

A complaint that the damages are inadequate or excessive is a complaint about …

Answer 5

… the factual sufficiency of the evidence.

Question 6

A party that unconditionally moves the trial court to accept the verdict and enter judgment thereon may not thereafter …

Answer 6

… attack the jury’s findings on factual or legal sufficiency grounds.