Parties seeking to appeal from an adverse judgment should be wary of requesting or otherwise approving the very judgment they intend to appeal. In Sincerely Yours LP v. NCI Building Systems LP, Sincerely Yours obtained a favorable verdict on liability but wanted to appeal the exclusion of certain testimony relating to the extent of its damages. After the verdict, Sincerely Yours moved for judgment and approved a proposed final judgment as to "form and substance." Sincerely Yours later perfected an appeal to complain of the exclusion of the damages testimony.
The Amarillo Court of Appeals dismissed the appeal in reliance upon well-settled authority that a party waives its right to appeal by moving for judgment without expressly indicating somewhere in the motion that it reserves the right to complain of the judgment on appeal. Sincerely Yours should have indicated that it agreed to the form of the judgment only and that it disagreed with the result and reserved the right to appeal. In dismissing the appeal, the court of appeals rejected Sincerely Yours’ argument that it had made the trial court aware of its intent to appeal by filing a motion for new trial. The court of appeals held that the waiver occurred previously–when the motion for judgment was filed. The court’s opinion may be found here.