NO. 07-10-00280-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL A FEBRUARY 8, 2011

SINCERELY YOURS, L.P., APPELLANT

v. NCI BUILDING SYSTEMS, L.P., D/B/A METALLIC BUILDING COMPANY, APPELLEE

FROM THE 393RD DISTRICT COURT OF DENTON COUNTY; NO. 2006-60150-393; HONORABLE DOUG LAS M. ROBISON, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER OF DISMISSAL

We withdraw our December 22, 2010 Order of Dismissal and substitute the following:
Appellee, NCI Building Syst ems, L.P., d/b/a Metallic Building Company (NCI), filed a motion to dismiss the appeal filed by appellant, Sincerely Yours, L.P. (Sincerely Yours). We grant the mo tion and dismiss the appeal.2 Sincerely Yours asserted claims of def ective design and fabrication of roof trusses that were manufactured by NCI. In 2004, during a thunder storm, the roof of Sincerely Yours’s warehouse collapsed caus ing the damages claimed by Sincerely Yours in this suit. During t he resulting protract ed and hotly contest ed trial, Sincerely Yours offered the testimony of Fred Anderson to establish the extent of its damages. The trial court sustained NCI’s relevancy obje ction to Anderson’s testimony. Sincerely Yours excepted to the trial c ourt’s ruling. The trial cour t noted the exce ption and stated its opinion that the excepti on had been perfected for the record.
Despite the exclusion of A nderson’s testimony, the jury returned a verdict in favor of Sincerely Yours. Sinc erely Yours then filed a moti on to sign the judgment that requested the trial court “sign a judgment based on the jury’s findings.” Attached to this motion, Sincerely Yours incl uded a proposed Final Judgment that reflected the findings of the jury, noted that it was “approved as to form and substance,” and was signed by the representatives of both par ties to the present appeal. The trial court signed the proposed final judgment without any changes. Subsequently, Sincerely Yours filed a motion for new trial based, inter alia , on the exclusion of Ander son’s testimony. After hearing, the trial court overruled Sincerely Yours’s new trial moti on, and Sincerely Yours timely perfected the present appeal.

NCI has filed a motion to dismiss Sincer ely Yours’s appeal. NCI contends that Sincerely Yours waived its right to appeal by moving for final judgment that it approved as to form and substance without expressly reserving the right to complain of the judgment by appeal in its mo tion. Sincerely Yours re sponds contending that the3 authority upon which NCI bases its motion applies only to agreed or consent judgments, and that the judgment in the present case was clearly not agreed or the result of
consent.
When a litigant moves the trial court to enter judgment, and the trial court enters the proposed judgment, the motion for entry of judgment will generally be considered an acquiescence in the verdict, which will foreclose a subsequent attack on appeal. Menchaca v. Bishop , No. 14-94-00480-CV, 1996 Tex. App. LEXIS 1417, at *2 (Tex.App.—Houston [14 th Dist.] April 11, 1996, no writ) (not desi gnated for publication) (citing Texas Commerce Bank v. Lebco Constructors , 865 S.W.2d 68, 80 (Tex.App.— Corpus Christi 1993, writ denied), and Casu v. Marathon Refining Co. , 896 S.W.2d 388, 389 (Tex.App.—Houston [1 st Dist.] 1995, writ denied)). When a party moves for entry of judgment for a particular amoun t, and the trial court renders judgment for that amount, that party cannot challenge the judgment on appeal. Casu , 896 S.W.2d at 389; see Litton Indus. Prods., Inc. v. Gammage , 668 S.W.2d 319, 321-22 (Tex. 1984). For a party to preserve the right to appeal a judgment that it mov ed the trial court to enter, the party must state in its motion for entry of judgment that it agrees only with the form of the judgment, and note its disagr eement with the content and re sult of the judgment. BKT Corp. v. Express-News Corp. , No. 04-96-00871-CV, 1997 Te x.App. LEXIS 5288, at *6-*7 (Tex.App.—San Antonio October 8, 1997, no pet.) (not designated for publication) (citing First Nat ’l Bank of Beeville v. Fojtik , 775 S.W.2d 632, 633 (Tex. 1989)); see also Bonner v. Texas Children’s Hosp. , No. 13-03-228-CV, 2006 Tex.App. LEXIS 1331, at *5 (Tex.App.—Corpus Ch risti February 16, 2006, pet. denied) (mem. op.); Nationscredit Corp. v. CSSI, The Support Group, Inc. , No. 05-99-01612-CV, 20014 Tex.App. LEXIS 1313, at *25 (Tex.App.—Dallas March 1, 2001, no pet.) (not designated for publication); Menchaca , 1996 Tex.App. LEXI S 1417, at *3; Casu , 896 S.W.2d at
390.
In the present case, Sincerely Yours moved the trial cour t to sign a judgment based on the jury’s findings. This motion did not state that Sincer ely Yours agrees only with the form of the judgment nor does it not e Sincerely Yours’s disagreement with the content and result of the judgment. In fact, the proposed judgment is signed by Sincerely Yours as “approved as to form a nd substance.” The final judgment entered by the trial court is the same judgment pr oposed by Sincerely Your s. Therefore, as Sincerely Yours unreservedly in vited the trial court to enter the judgment it entered, it may not attack that judgment on appeal. See Casu , 896 S.W.2d at 390.
In response to NCI’s motion to dismiss, Sincerely Yours contends that it did not consent to the judgment enter ed by the trial court and, t herefore, did not waive its appeal. We agree with Sincerel y Yours that the judgment enter ed in this case was not a consent judgment. However, when a party makes an unqualified motion for entry of judgment, the issue of consent is irrelevant. See id. When a waiver of appeal is based on a party’s motion for entry of judgment, t he only issue is whether the trial court entered the judgment t hat the party asked it to enter. See id. In the present case, the trial court signed the precise judgment proposed by Sincerely Yours. Thus, as to the issue of whether Sincerely Yours waived its right to appeal by moving for the entry of judgment, it is of no import that th e judgment was not a consent judgment.5 Finally, Sincerely Yours contends that the record of the trial and the hearing on Sincerely Yours’s post-judgment motion for new trial reflects that the trial court was aware of Sincerely Yours’s desire to appeal the exclusion of Anderson’s testimony regarding damages. However, t he trial court’s acknowledgem ent of Sincerely Yours’s desire to appeal does not negate Sincerely Yours’s waiver of appeal. Clearly, a waiver of appeal arising from an unqualified motion for entry of judgment wo uld waive any error occurring during trial, even if that claimed error was properly preserved. See id. Furthermore, a motion for new trial that is filed after the trial court has entered a judgment that was unqualifiedl y requested by the party mo ving for new trial does not undo or cure the waiver of right to challenge the judgment requested by that party. See Menchaca , 1996 Tex.App. LEXIS 1417, at *4.
If a party moves for entry of judgment without reservati on, as Sincerely Yours did in the present case, we hold t hat all appellate iss ues that challenge the judgment or any portion of the judgment that was unqualifiedly requested by that party and entered by the trial court are waived. If a party wants to preserve issues for attack on appeal, the party must reserve that right in its motion for entry of judgment by st ating that it agrees only with the form of the judgment, and disagr ees with the content and result of the judgment. See Fojtik , 775 S.W.2d at 633; Casu , 896 S.W.2d at 391-92.
For the foregoing reasons, we grant NCI ’s motion to dismiss Sincerely Yours’s appeal.
Mackey K. Hancock Justice