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McCracken v. Winchell Property Systems Co.8/24/1995
Appellants Kevin D. McCracken and Nancy S. McCracken ("the McCrackens") bring this appeal complaining of the trial court's permitting appellees to take a dollar-for-dollar settlement credit which, when substracted from the jury's verdict in favor of the McCrackens, resulted in zero damages assessed against the appellees. We affirm the judgement of the trial court.
The McCrackens brought suit against numerous parties involved in their purchase of a home which was later found to be built upon a geologic fault. They settled with all other parties and went to trial only against appellees ("the Winchells"). Before the jury returned its verdict, the Winchells filed a motion electing to take a settlement credit equal to the amount of the prior settlements, or $303,000. The judge granted this request. The jury returned a verdict, awarding the McCrackens $207,000 in damages. The McCrackens then filed a document which combined a Motion for Judgment, in which they elected to recover exclusively on the DTPA claims, and a Motion for Judgment Notwithstanding the Verdict. In this document, the McCrackens asserted that by statute the Winchells were not entitled to a credit. In another document, their Response to Defendants' Motion for Judgment, the McCrackens reiterated this same argument regarding the settlement credit and also asserted that the Winchells had failed to "provide any calculations upon which they base their 'zero dollar' judgment." The McCrackens here also requested additional damages, and the trial court modified the final judgement to grant the McCrackens some of the additional damages suggested in the Response, bringing their total award to $292,600. From this figure the trial court subtracted the settlement credit of $303,000, resulting in zero damages for the McCrackens.
On appeal, the McCrackens proffer two reasons why the trial court erred in applying the $303,000 credit: first, the Winchells failed to establish they were entitled to a credit because they did not place the settlement agreement in the record or otherwise establish that the settling defendants contributed to the same injury for which judgment was rendered against the Winchells; and second, the injury suffered by the McCrackens was not a single injury. However, we cannot find in the record any evidence to show that the McCrackens made these arguments to the trial court. The basic rule governing the preservation of error dictates that a party alert the trial court to a perceived error in order that the trial court may then consider the argument and make an informed ruling. TEX. R. APP. P. 52(a).
The McCrackens assert in a supplemental brief that error was preserved in their Motion for Judgement on Jury Verdict and Motion for Judgment Notwithstanding the Verdict. In addition, they cite the general rule that an objection at trial need not be specific if the specific grounds for the objection are apparent from the context. For this proposition they cite two cases which discuss waiver in the context of objections to a jury charge. State Dep't of Highways v. Payne, 838 S.W.2d 235, 239 (Tex. 1992); Ahlschlager v. Remington Arms Co., Inc., 750 S.W.2d 832, 833 (Tex. App. -- Houston [14th Dist.] 1988, writ denied). Although these cases refer to preservation of error in an area which is not at issue in this case, the philosophical underpinnings of these cases are equally applicable in this case. These cases remind us that rigid and overly technical means of preserving error are not necessary to fulfill the primary goal of alerting the trial court to the reason for objecting and thus permitting a correction of an earlier ruling. See Payne, 838 S.W.2d at 240 (noting "recondite" nature of rules concerning preparation o
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