Court of Appeals of Texas, Beaumont.

Johnny Lee SHELTON, Appellant,

v.

EQUITABLE BAG CO., INC., Appellee.

No. 09-92-238 CV.

|

Dec. 2, 1993.

Before WALKER, C.J., BROOKSHIRE and BURGESS, JJ.

BURGESS.

OPINION

*1 Johnny Lee Shelton sued Equitable Bag Co, Inc., for retaliatory discharge in violation of the workers’ compensation statute, Tex.Rev.Civ. Stat. Ann. art. 8307c (Vernon Supp.1993). At trial Equitable Bag maintained that Shelton was fired for sexually harassing female employees. The jury found that Equitable Bag discharged or discriminated against Shelton in violation of the workers’ compensation act, but found no actual damages. The jury also found that Equitable Bag acted willfully or maliciously and that $75,000 should be assessed as exemplary damages.

Equitable Bag moved for judgment non obstante veredicto, noting that it was entitled to a take-nothing judgment in any event, but asking that the court disregard the jury’s answer to questions one, three and four in entering its judgment. Shelton moved for judgment on the verdict of the jury. We reproduce the entire body of that motion, as follows:

COMES NOW, Johnny Lee Shelton, Plaintiff in the above entitled and numbered cause, and moves the Court to enter judgment, and as grounds therefore would show the Court as follows:

I.

The Court submitted this case to the jury upon special questions, and the jury returned their findings upon such special questions, which findings were received by the Court, and filed and entered in the minutes of the Court. The issues submitted to the jury and the findings thereon are incorporated herein as if fully set forth herein at length. The Court should enter judgment in favor of Equitable Bag Company, Inc. because the jury found no actual damages, although the jury did find liability on the part of Equitable Bag Company, Inc.

WHEREFORE, PREMISES CONSIDERED, Plaintiff moves and prays the Court that it enter a take nothing judgment in favor of the Defendant and against the Plaintiff, Johnny Lee Shelton, and for such other and further relief, general and special, legal and equitable, to which the Plaintiff may show himself justly entitled to receive.

The trial court granted Equitable Bag’s motion and entered a take-nothing judgment. Then Shelton filed a motion for new trial which for the first time urged that the jury’s finding of no damages was against the great weight and preponderance of the evidence.

Shelton raises two points of error. Point of error one complains the trial court erred in granting judgment non obstante veredicto. Point of error two urges the trial court erred in failing to grant a new trial because the zero finding on actual damages is against the great weight and preponderance of the evidence. Equitable Bag maintains Shelton waived error on these points by moving for a take-nothing judgment without reservation. We agree.

Having filed a motion to render judgment on the jury’s verdict, Shelton could not on appeal take a position inconsistent with that part of the judgment. Litton Industrial Products, Inc. v. Gammage, 668 S.W.2d 319 (Tex.1984); Miner-Dederick Construction Corp. v. Mid-County Rental Service, Inc., 603 S.W.2d 193 (Tex.1980). A motion for judgment on the verdict is an affirmation by the movant that the findings of the jury are supported by competent evidence and the party will thereafter not be heard to complain of them. Stewart & Stephenson Services v. Enserve, Inc., 719 S.W.2d 337 (Tex.App.-Houston [14th Dist.] 1986, writ ref’d n.r.e.); Braswell v. Braswell, 476 S.W.2d 444 (Tex.Civ.App.-Waco 1972, writ dism’d).

*2 In contrast to the situation in Litton, in this case Shelton did file a motion for new trial complaining of the factual sufficiency of the evidence. Even this approach was rejected by the Court of Appeals in Stewart & Stephenson: “Stewart & Stephenson is also attempting to ‘have it both ways.’ First it moved for judgment on the verdict and then attempted to preserve no evidence and insufficient evidence points of appeal by filing a motion for new trial once judgment was rendered on the verdict. The attempt has failed.” 719 S.W.2d at 341. It does not aid Shelton’s cause that he took an inconsistent position before the trial court as well as before this Court. Since factual sufficiency is raised by motion for new trial after judgment is rendered, a party must protect his appellate remedy in his prejudgment motions. This is done simply by submitting a proposed judgment as to form only while noting disagreement with the content and result of the judgment. Transmission Exchange, Inc. v. Long, 821 S.W.2d 265 (Tex.App.-Houston [1st Dist.] 1991, writ denied). A party who desires to have a judgment entered but who wishes to appeal the sufficiency of the evidence may preserve the error by express reservation in the motion for judgment. First National Bank of Beeville v. Fojtik, 775 S.W.2d 632 (Tex.1989). By moving for a judgment without reservation, appellant waived any complaint as to the sufficiency of the evidence to support that verdict. Travenol Laboratories, Inc. v. Bandy Laboratories, Inc., 608 S.W.2d 308 (Tex.Civ.App.-Waco 1980, writ ref’d n.r.e.).

Appellant filed a motion to enter judgment on the verdict. The judgment recites that the trial court granted the motion for judgment non obstante veredicto, so although appellant moved for judgment on the verdict without reservation, the trial court did not grant the motion. Ultimately this is a distinction without a difference. If we were to hold that the trial court erred in disregarding the answers to questions 1, 3 and 4, appellant’s relief would be not a new trial but a take-nothing judgment. Whether it be by judgment of the court or the jury, nothing is nothing still. The decretal portion of the judgment is identical, and frankly that is all that matters on appeal, for we shall reverse a judgment only if the error amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case. Tex.R.App. P. 81(b)(1).

Appellant waived the error asserted in point of error two by moving for judgment on the verdict. Although the only relief prayed for in his brief is remand for a new trial, remand would not be appropriate were we to sustain point of error one. The only appropriate remedy would be rendition of a take-nothing judgment. Since that is precisely the judgment entered by the trial court, there is no reversible error in the judgment below. As no reversible error is presented, we overrule appellant’s points of error. The judgment is affirmed.

*3 AFFIRMED.