Marathon Corp. v. Pitzner8/2/2001
the appellant failed to pay the filing fee for its motion for new trial until long after the motion was overruled by operation of law and the trial court lost plenary jurisdiction. We hold that appellant has failed to preserve error as to those issues which must be preserved for appellate review by a point raised in a motion for new trial.
Accordingly, appellant's factual sufficiency claims, raised in issues one, two, three, four and five, are overruled. See Tex. R. Civ. P. 324(b). Appellant's claim of an excessive damages award, raised in issue nine, is also overruled. See Id. We will now review appellant's remaining issues.
C. Legal Sufficiency of the Evidence
1. Standard of Review
Generally, when a party presents multiple grounds for reversal of a judgment on appeal, the appellate court should first address those points that would afford the party the greatest relief. Bradleys' Electric, Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999); see CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (determining legal sufficiency points before reaching a venue question). The remedy for legal insufficiency is a rendition in favor of the appellant, and the remedy for an error in the determination of proper venue is a remand. Daenen, 15 S.W.3d at 99. Therefore, we will address appellant's legal sufficiency issues first.
The jury is the sole judge of the credibility of witnesses and is entitled to accept or reject any testimony it wishes, as well as to decide what weight to give the testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (Tex. 1962); ONI, Inc. v. Swift, 990 S.W.2d 500, 502 (Tex. App.-Austin 1999, no writ).
Legal sufficiency issues are addressed as either "no evidence" or "matter of law" issues. Minyard Food Stores, Inc. v. Goodman, 2001 Tex. App. LEXIS 4254, *4 (Tex. App.-Fort Worth June 28, 2001, no pet. h.); Gooch v. Amer. Sling Co., 902 S.W.2d 181, 183 (Tex. App.-Fort Worth 1995, no writ). When the complaining party on appeal did not have the burden of proof at trial, we address the error as a "no evidence" point. Minyard Food Stores, 2001 Tex. App. LEXIS at *4; Gooch, 902 S.W.2d at 183-84. When the complaining party on appeal did have the burden of proof, we address the issue as a "matter of law" challenge. Dow Chem. Co. v. Francis, 2001 Tex. LEXIS 37, *10, 46 S.W.3d 237, --- (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). In the instant case, appellant claims the evidence is insufficient as to issues on which appellee had the burden of proof at trial.
When the appellant challenges the legal sufficiency of the evidence to support a finding on which it did not have the burden of proof at trial, the appellant must demonstrate on appeal that no evidence exists to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); II Deerfield Ltd. Partnership v. Henry Bldg, Inc., 41 S.W.3d 259, 264 (Tex. App.-San Antonio 2001, pet. denied); Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex. App.-Dallas 2001, no pet.); Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.-Austin 1992, no writ). In the instant case, appellant did not have the burden of proof as to the issue of which he complains the evidence is insufficient.
When we review a "no-evidence" issue, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all inferences to the contrary. Bradford, 2001 Tex. LEXIS 35, at *9; Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992); Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988); see Formosa Plastics Corp. USA v. Presidio Eng'rs & Contrac
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