Affirmed and Memorandum Opinion filed December 5, 2019

.

In t he 

## Fourteenth Court of Appeals

NO. 14

- 17

- 00870

- CV

SONYA ASHLEY , Appellant

v . NORTH HOUSTON POLE LINE, L.P. AND JOAQUIN JIMENEZ , Appellee s

On Appeal from the 333rd District Court

Harris Co u nty, Te xas Trial Court Cause No. 2014

- 71128

MEMORANDUM OPINION
Appellant Sonya Ashley appeals from a final judgment awarding her $207,617.44 in actual damages on her negligence claims against appellees North Houston Pole Line, L.P. and Joaquin Jimenez

. As we h old that Ashley waived her two issues on appeal, we affirm

. I. B ACKGROUND Ashley claims that her vehicle was hit by a truck driven by Jimenez in the2

course and scope of his employment with North Houston. Ashley brought suit asserting negligence cla ims against North Houston and Jimenez. At trial, the jury awarded Ashley $207,617.44 in actual damages. Ashley moved for judgment on
this verdict , submitting a prop o sed final judgment for $207,617.44 in actual damages plus pre

- and post

- judgment interest a nd c ourt co sts. 1 The trial court signed the final judgment requested by Ashley , who then filed a notice of appeal.

II. A NALYSIS Ashley contends in two issues that (1) the trial court erred in admitting the

cou n ter

- affidavit and trial testimony of appellees ’ exper t Dr. Da vid Randall and (2) the amount of damages awarded by the jury was against the great weight and preponderance of the evidence. We first address appellees’ contention that these
issues have been waived because Ashley moved for judgment on the jury’s v erdict
and failed to p reserve any complaints on appeal

. A party who moves for judgment on the verdict and does not reserve the right to complain may not take a position on appeal inconsistent with that part of the judgment. Litton Indus. Prods., In c. v. G a mmage , 668 S.W.2d 319, 321

– 22 (Tex. 1984); see First Nat ’ l Bank of Beeville v. Fojtik , 775 S.W.2d 632, 633 (Tex. 1989). To preserve the right to complain about a judgment on appeal, a movant for judgment must make the trial court aware of its disag reement with th e content and result of the judgment. See Fojtik , 775 S.W.2d at 633 (no waiver when plaintiffs’
motion for entr

y of judgment referenced plaintiffs’ motion for new trial, stated that plaintiffs agree d only with form of judgment , and specified plaint i ffs’
di sagreement with content and result of judgment )

. Here, Ashley moved for judgment on the jury’s verdict, attaching her

1 The judgment also ref

lected an agreement between Ashley and intervenor the City of Houston reg arding reimbursement of the city’s statutory workers’ compensation lien.3

proposed judgment as an exhibit , which the trial court signed as its final judgment

. She did not file a motion for a new tr ial or o therwis e object to the verdict prior to moving for judgment. Neither Ashley’s motion for entry of judgment, nor the final judgment itself, references any disagreement with the jury’s verdict, nor do the
documents note that the proposed jud gment was approv e d “in f orm only.” Ashley’s proposed judgment, moreover, sought the same amount of actual damages in the jury verdict

— $207,617.44. Having moved for judgment on the jury’s verdict without reservation , Ashley cannot now challenge tha t judgment on

appe al. See Litton , 668 S.W.2d at 321

– 22 (holding that movant could not challenge on appeal actual damages it moved for in final judgment) ; see also Tex. R. Civ. P. 324(b) (requiring motion for new trial to complain of factual in sufficiency o f evidence to supp ort jur y findin g )

. Ashley claims that language in the final judgment stating it was “appealable” preserves error. We disagree. The sentence Ashley refers to states, “This judgment is final, disposes of all claims and all parties, and is a ppealable.” This b oilerpl a te lang uage concerning the finality of the judgment fails to preserve a complaint for appellate review. See Tex. R. App. P. 33.1(a) (general rule for preservation of appellate complaints) ; Lehmann v. Har

- Con Corp. , 39 S.W.3d 191, 192

– 93 (Tex. 2001)

. Ashle y also c laims that her notice of appeal demonstrates that she disagreed with the judgment. Her postjudgment notice of appeal, however, does not satisfy the requirements of Texas Rule of Civil Procedure 324 (a), (b) and Texas Rule of Appellate Procedu re 33.1 ( a)

. The cases that Ashley cites in her briefing are distinguishable. While Ashley argues that Fo

jt ik favors her position , Ashley’s statement that the final judgment “is appealable” does not comport with Fo jt ik , where the supreme c ourt held that4

pla intiffs had pre served error by specifying in their motion for judgment that they “disagree with the findings of the jury” and “feel there is a fatal defect [in the judgment] which will support a new trial,” and by requesting entry of the proposed judgment only if the tri al court denied their motion for a new trial. 775 S.W.2d at 633. Ashley, by contrast, did not move for a new trial, and did not include any language either in her motion for entry of judgment, or in the final judgment itsel f, explicitly expr essing a ny disa greement with the terms of the judgment. Ashley also
cites Melissinos v. Phamanivong , which involved a party who challenged t he proposed final judgment and also moved for a new trial

— circumstances not present here

. 823 S.W.2d 339, 342 (Tex

. App.

— T exarkana 1991, writ denied)

. Likewise, Andrew Shebay & Co., P.L.L.C. v. Bishop involv ed a losing party that did not move for judgment, but instead approved the form and substance of the prevailing party’s proposed judgment only after filing a motio n for ju dgment notwithstanding the verdict, thereby clearly expressing its disagreement with the judgment ultimately issued

. 429 S.W.3d 644, 647

– 48 (Tex. App.

— Houston [1st Dist.] 2013, pet. denied) . Ashley also cites Seeberger v. B NSF R ailway Co. for the

p r o positi on that, “[i] n applying Fojtik , [courts] have not required specific language be used to reserve a right to appeal, but instead have focused on whether the trial court was made aware that the party requesting judgment be ent ered disagreed with the j u d gment

. ” No. 01

- 12

- 00583

- CV, 2013 WL 5434141, at *3 (Tex. App.

— Houston [1st Dist.] Sept. 26, 2013, pet. den ied ) (mem

. op.). We agree with this statement, but disagree that Ashley took any steps to make the trial court “aware” that she “disagreed with the ju dgment” she pr o posed.
With regard to her argument that the trial court should have excluded the testimony of Dr. Randall , Ashley cites Green v. Texas Workers ’ Comp ensation
Ins urance Facility , 993 S.W.2d 839 (Tex. App.

— Austin 1999, pet. denied)

. In5

Green , t he Third C ourt of Appe als held that the plaintiff had not waived his right to appeal the exclusion of his expert at trial whe n the plaintiff had “ never taken a position inconsistent with his contention that the exclusion of [his expert]’ s testim ony was err or .” Id. at 84 3

. Again , however, the factual settings are different. Green moved for a new trial, which Ashley failed to do. Id. at 841. Green’s expert, moreover, would have testified about a claim on which Green was denied relief at
trial. Id. at 842

– 43.

In contrast t o Green , Ashley challenges the jury verdict in her favor on
which she moved for judgment. Ashley admits that the substance of her issue regarding Dr. Randall was that the court’s ruling affected the amount of damages
she was awarde d , stating in her appella t e brief that “t he trial court’s failure to exclude Dr. Randall constituted error and resulted in a woefully inadequate award for damages by the jury.” Ashley waived this issue when she moved to enter judgment on the verdict . The cases of thi s court applyi n g Litto n and Fo jt ik hold
that such evidentiary errors are waived unless the party complaining about such

errors and requesting the judgment expresses disagreement with its terms. See
Jones v. Union Pac. R.R. Co. , No. 14

- 02

- 01289

- CV, 2004 WL 1688175, at *2 (Te x . App.

—

Houston [14th Dist.] July 29, 2004, pet. denied) (mem. op.) (“ Because appellant moved for judgment based on the jury ’ s finding of his loss of earning capacity, he cannot now take the inconsistent position that erroneously
admitted evidence resulted in an impr o per jud gment. ”) ; Menchaca v. Bishop , No.
14

- 94

- 00480

- CV, 1996 WL 170272, at *2 (Tex. App.

— Houston [14th Dist.] Apr. 11, 1996, no writ) (mem. op., not designated for publication) (“ It is counterintuitive for appellant to move t he trial court to enter a particular judgment, and subsequently, complain th a t the s ame judgment was improper based on the
trial court ’ s evidentiary rulings. ”).6

Accordingly, we conclude that Ashley’s two issues are waived.

III. C ONCLUSION We affirm the jud gment of the trial court.

/s/ Charles A. Spain Justice

Panel consists of Justices Wise , Zimmerer , and Spain

.