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Dunlap v. Excel Corp.6/27/2000
as Supreme Court, involved an appeal by a defendant who opposed the trial court's severing of the claims of a husband from those of a wife after submission of a case to the trier of fact, then granting a new trial only to the husband and refusing a new trial to the defendant on the wife's claims. See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 449-50 (Tex. 1998).
In the case at bar we are not faced with the actions of a trial court which, despite objection by the defendant, severed claims of spouses pursuant to TRCP 41, or granted a partial new trial to only one spouse under TRCP 320. Nor are we considering an appeal in which either party before us seeks reversal of Alvin's judgment based on properly assigned trial court error. Appellant only seeks reversal of the take-nothing judgment entered against her. As previously noted, appellee does not assign error and seek reversal of Alvin's judgment against it. Rather, appellee's conditional cross-point asks that should we reverse and remand the entire case, any new trial be made contingent on Alvin's repaying the money he received to release his judgment lien.
In the absence of fundamental error we may not reverse the judgment of a trial court for a reason not properly assigned as error. Pat Baker Co., Inc. v. Wilson, 971 S.W.2d at 450; see Ramsey v. Dunlop, 205 S.W.2d 979, 980, 983, 146 Tex. 196 (1947). Neither party has assigned error seeking reversal of Alvin's judgment. We may not and do not reverse that part of the trial court judgment.
CONCLUSION
Our determination of appellant's first issue is dispositive of the appeal, therefore we do not address appellant's second issue. TRAP 47.1. We do not remand the entire case for a new trial, therefore we do not address appellee's conditional cross-point. Id.
The judgment of the trial court that appellant take nothing is reversed. Appellant's claim against appellee is remanded for a new trial on both liability and damages.
Publish.
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