Texas Judiciary Online - HTML Opinion

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Opinion issued August = 17,=20 2007

In The

Court = of=20 Appeals

For=20 The

First = District=20 of Texas

NO. = 01-05-00189-CV

S.E.A. = LEASING,=20 INC., Appellant

JEFF = STEELE AND=20 MELISSA STEELE, Appellees

On = Appeal from the=20 189th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2000-14641

OPINION = DISSENTING=20 FROM THE DENIAL OF EN BANC RECONSIDERATION

I = respectfully=20 dissent from denial of en banc reconsideration. The panel opinion = in this=20 case adds new and unprecedented hurdles to appellants' = preservation of=20 legal sufficiency points of error. In so doing, it contravenes the = objective of Texas Rule of Civil Procedure 1, namely "to obtain a = just,=20 fair, equitable and impartial adjudication of the rights of = litigants=20 under established principles of substantive law," to which end the = rules=20 "shall be given a liberal construction." Tex. R. Civ. P. 1. En = banc=20 reconsideration is, in my view, justified to maintain the = uniformity of=20 this Court's interpretation of the rules of civil and appellate = procedure=20 with established precedent on the important issue of preservation = of legal=20 error and its conformity with the mandate of Rule 1. See = Tex. R.=20 App. P. 41.2(c).^{=20
(1)}

Preservation=20 Issues

Appellant,=20 S.E.A. Leasing, Inc., argues in its first and second issues on = appeal that=20 the trial court erred in failing to grant its motions for summary = judgment=20 and for new trial on limitations grounds because (1) the Steeles'=20 misidentification of the proper party defendant did not toll the=20 limitations period, since there was no evidence of fraudulent = concealment,=20 and (2) S.E.A. Leasing's absence from the state as a foreign = corporation=20 did not defer accrual of the cause of action against it. In its = third=20 issue, S.E.A. Leasing argues that the trial court erred by = admitting the=20 expert-witness testimony of Emil Shebelbon over its objection = because=20 "[the Steeles] failed to put forth any evidence to meet their = burden of=20 showing that Shebelbon's opinion was based on sufficiently = objective=20 foundation or reliable methodology to constitute legal evidence."=20 In its = fourth issue,=20 S.E.A. Leasing argues that Shelbebon's expert testimony was = non-probative=20 and thus there was legally insufficient evidence of an = unreasonably=20 dangerous condition on its land.

The panel=20 holds that S.E.A. Leasing failed to preserve any of these issues = for=20 appellate review. Specifically, it holds that (1) because = appellant,=20 S.E.A. Leasing, failed to pay the filing fee on its motion for new = trial,=20 it failed to preserve for appeal both its statute-of-limitations = argument=20 and its argument that the evidence was legally insufficient to = show that a=20 dangerous condition existed on its premises; (2) in any event, = S.E.A.=20 Leasing's motion for new trial failed to preserve its=20 statute-of-limitations point of error because its arguments on = that point=20 in its motion for new trial differed from its arguments on appeal; = and (3)=20 S.E.A. Leasing failed to preserve its objections to the = admissibility and=20 legal competency of the expert testimony relied on by appellees = Jeff=20 Steele and Melissa Steele (the Steeles) and the legal sufficiency = of that=20 testimony to prove the unreasonable danger element of their = premises=20 liability claim. Because, in the panel's view, no error was = preserved, the=20 panel affirms the trial court's judgment.

In my view,=20 the panel opinion is erroneous as to all three preservation = issues. S.E.A.=20 Leasing preserved and correctly asserted its = statute-of-limitations=20 challenge to the trial court's judgment, its challenge to the=20 admissibility and competency of the expert testimony upon which = the=20 Steeles relied, and its challenge to the legal sufficiency of the = evidence=20 to prove the unreasonable danger element of the Steeles' premises=20 liability claim. This appeal should have been decided on its=20 merits.

Waiver=20 Through Failure to Pay Filing Fee on Motion for New=20 Trial

S.E.A.=20 Leasing raised its statute-of-limitations affirmative defense in = its=20 pleadings and in a motion for summary judgment, which was denied. = It then=20 raised the issue again in its motion for new trial, stating, = "Plaintiff=20 presents no legally cognizable evidence to excuse or toll the = expiration=20 of the limitations period controlling this action." It argued that = the=20 statute of limitations was not tolled because the Steeles had = offered no=20 evidence at trial to support avoidance of limitations under the = discovery=20 rule, fraudulent concealment, misidentification, or S.E.A. = Leasing's=20 absence from the State. The = trial court=20 conducted an oral hearing on S.E.A. Leasing's motion for new trial = and=20 overruled it. No objection was made in the trial court to S.E.A. = Leasing's=20 failure to pay the filing fee for its motion; nor was any = objection made=20 to that court's consideration of the motion.

Failure to=20 Pay Filing Fee on Motion for New Trial

The panel=20 holds that "an appellant's failure timely to pay the filing fee = before the=20 trial court loses its plenary power does not preserve the = appellant's=20 complaint for review on appeal." It rests its conclusion on the = Texas=20 Supreme Court's holding in Garza v. Garcia, 137 S.W.3d = 36, 38=20 (Tex. 2004) (quoting Jamar v. Patterson, 868 S.W.2d 318, = 319 n.3=20 (Tex. 1993)). In my view, the panel misconstrues Garza = and its=20 mandate regarding preservation of error when the filing fee on a = motion=20 for new trial has not been paid.

The panel=20 opines, correctly, that to preserve its legal-sufficiency = complaint,=20 S.E.A. Leasing had to raise it in (1) a motion for instructed = verdict; (2)=20 an objection to the charge; (3) a motion for judgment = notwithstanding the=20 verdict; (4) a motion to disregard the jury's answer to a vital = fact=20 issue; or (5) a motion for new trial. See = Cecil v.=20 Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); Aero Energy, = Inc. v.=20 Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985). = Nevertheless,=20 the panel holds that S.E.A. Leasing failed to preserve its=20 statute-of-limitations complaint because that complaint was raised = only in=20 a motion for new trial on which S.E.A. Leasing failed to pay the = filing=20 fee. I would hold that S.E.A. Leasing's failure to pay the filing = fee on=20 its motion for new trial did not cause it to lose its = right to=20 appeal its limitations defense.

In=20 Garza, the supreme court considered whether a motion for = new=20 trial extended the timetable for filing a notice of appeal even = if--as=20 here--the requisite filing fee for the motion was never paid. 137 = S.W.3d=20 at 37. The court held that a fee-less motion was conditionally = filed for purposes of the appellate timetable and, therefore, = it was=20 effective to extend appellate deadlines. It did not hold = that a=20 motion filed without the filing fee is not conditionally = filed,=20 as the panel opinion implies, and, therefore, if the trial court = loses its=20 plenary power before the fee is paid the motion is never filed and = does=20 not preserve error; it held the opposite. See id. at = 37-38.=20

In=20 Jamar v. Patterson, the supreme court had held that = appellate=20 deadlines are extended by a fee paid before a motion for new trial = is=20 overruled. 868 S.W.2d 318, 319 (Tex. 1993). In Garza, the = supreme=20 court extended that rule to cases in which the fee is never paid = at all.=20 See 137 S.W.3d at 38 n.8 (citing Jamar, 868 = S.W.2d at=20 319). The court stated:

Although we have=20 previously reserved ruling on a fee that was never paid, we now = extend the=20 same rule [that a motion for new trial is considered conditionally = filed=20 for purposes of the appellate timetable when the fee is paid late = but=20 while the court retains plenary power] to this situation for the = same=20 reasons. We construe the Rules of Appellate Procedure liberally, = so that=20 decisions turn on substance rather than procedural = technicality;=20 nothing in those rules requires a fee to accompany a motion for = new trial,=20 or that such a fee be paid at all. . . . The alternative would = breed=20 uncertainty. . . .

Id. at 38=20 (emphasis added). The supreme court opinion was thus generally in = accord=20 with (although more liberal than) this Court's prior holding in = Finley=20 v. J.C. Pace Ltd., 4 S.W.3d 319, 321 (Tex. App.--Houston [1st = Dist.]=20 1999, no pet.) (holding, prior to Garza, that timely = tendered=20 motion for new trial extends appellate timetable regardless of = when filing=20 fee is paid; denying motion to dismiss appeal for failure of = appellant to=20 pay statutory $15 filing fee for motion for new trial, but = ordering fee=20 paid within 15 days of order to prevent dismissal for want of=20 jurisdiction).

The=20 Garza court added that filing fees are not irrelevant, = even=20 though motions for new trial are deemed conditionally filed = without them,=20 because a trial court is not required to review a motion = for new=20 trial if the filing fee is never paid. It did not opine,=20 however--as the panel opinion in this case would have it--that the = trial=20 court is required not to review a motion for new trial if = its=20 plenary power expires before the filing fee is paid. See = Garza,=20 137 S.W.3d at 38. Nor did the supreme court hold that a motion for = new=20 trial must be reviewed by the trial court to preserve error, as = the=20 majority indicates; and, indeed, such a holding would contravene = Rule of=20 Civil Procedure 329b and Rule of Appellate Procedure 33.1(b). = See=20 Tex. R. Civ. P. 329b(a), (e); Tex. R. App. P. 33.1(b) ("In a civil = case,=20 the overruling by operation of law of a motion for new trial . . . = preserves for appellate review a complaint properly made in the = motion . .=20 . ."). In both Garza and its predecessor Jamar, = the=20 supreme court took exactly the opposite approach to that for which = the=20 panel cites those cases and rejected, rather than approved, the = elevation=20 of strict adherence to procedural technicalities over the = preservation of=20 error. See Garza, 137 S.W.3d at 38; Jamar, 868 = S.W.2d at=20 319.^{=20
(2)}

The panel=20 opinion is likewise inconsistent with prior case law from our = sister=20 courts of appeals in holding that an appellant's failure to pay = the filing=20 fee for the motion for new trial before the trial court loses = plenary=20 power "does not preserve the appellant's complaint for review on = appeal."=20 See Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311, 317 = (Tex.=20 App.--San Antonio 2007, pet. filed) (addressing merits of appeal = in which=20 filing fee on motion for new trial was not timely paid, but in = which trial=20 court held hearing on motion, thereby considering it); Kvanig = v.=20 Garcia, 928 S.W.2d 777, 779 (Tex. App.--Corpus Christi 1996, = no writ)=20 (holding that trial court has discretion to consider and to rule = on motion=20 for new trial from time tendered to clerk and conditionally filed = and=20 noting that "the payment of filing fees in other contexts is not = generally=20 a prerequisite to jurisdiction, nor does the failure to pay such = fees=20 deprive the trial court of jurisdiction over a case"); see = also=20 Tate v. E.I. DuPont de Nemours, 934 S.W.2d 83, 84 (Tex. = 1996)=20 (quoting Jamar, 868 S.W.2d at 319 and citing as = basis for=20 holding in Jamar, supreme court's "policy to construe = rules=20 reasonably but liberally, when possible, so that the right to = appeal is=20 not lost by creating a requirement not absolutely necessary from = the=20 literal words of the rule").

I = would=20 hold, therefore, that any challenge to S.E.A. Leasing's failure to = pay the=20 filing fee on its motion for new trial was waived, not that the = failure to=20 pay the fee was fatal to its preservation of the issues presented = in the=20 motion.^{=20
(3)}

Failure to=20 Object on Same Basis in Trial Court and Appellate=20 Court

The panel = opinion=20 next holds that "in its motion for new trial, S.E.A. Leasing did = not=20 complain that there was no basis to avoid limitations under=20 misidentification or S.E.A. Leasing's absence from the State. = Thus, these=20 particular statute-of-limitations arguments of S.E.A. Leasing = would not=20 have been preserved in any event." See Tex. R. App. P. = 33.1(a). I=20 disagree with the panel's construction of S.E.A. Leasing's = pleadings and=20 with its holding that S.E.A. Leasing waived its limitations = argument=20 because "it did not complain that there was no basis to avoid = limitations=20 under misidentification or S.E.A. Leasing's absence from the=20 state."

S.E.A.=20 Leasing pleaded in its motion for new trial that there was no = evidence to=20 support the Steeles' fraudulent concealment response to its=20 statute-of-limitations affirmative defense because "[a]ny alleged = failure=20 by [S.E.A. Leasing] to provide publicly available information=20 [i.e., information about transfer of ownership of the = premises=20 when the injury occurred to S.E.A. Leasing, an out-of-state = company] is=20 not a basis to toll on discovery rule grounds"; "[a]ny lapse in = the=20 corporate status of [S.E.A. Leasing] . . . is not a basis upon = which to=20 toll the statute of limitations"; and "[the Steeles] put forth no = evidence=20 of fraud." On appeal, S.E.A. Leasing argued that the Steeles'=20 misidentification of the proper party as defendant did not toll = the=20 limitations period when there was no evidence of fraudulent = concealment=20 and that S.E.A. Leasing's absence from the state as a foreign = corporation=20 did not defer accrual of the cause of action against = it.

Unlike the=20 panel, I can discern no material difference between the language = used by=20 S.E.A. Leasing to preserve its statute-of-limitations complaint in = its=20 motion for new trial and in its issues presented for appeal. = Rather, the=20 panel appears to have created a requirement that an appellant = state its=20 complaint in the trial court in the exact same words--and possibly = with=20 all the same arguments and authorities--that it uses in its = appeal. The=20 panel's parsing of S.E.A. Leasing's pleadings in its motion for = new trial=20 in such a way as to preclude preservation of error again imposes a = preservation burden on appellants beyond those warranted by any = rule or=20 case law. See Tex. R. Civ. P. 321 ("Each point relied = upon in a=20 motion for new trial . . . shall briefly refer to that part of the = ruling=20 of the court . . . designated to be complained of, in such a way = that the=20 objection can be clearly identified and understood by the court"); = see=20 also Tate, 934 S.W.2d at 84 (stating that right to appeal = should not=20 be "lost by creating a requirement not absolutely necessary from = the=20 literal words of the rule"); Jamar, 868 S.W.2d at 319=20 (same). =

Notably,=20 although the Steeles raised on appeal the issue of S.E.A. = Leasing's=20 failure to pay the filing fee on its motion for new trial as = grounds for=20 denying appellate review of the limitations issue, they did = not=20 make the argument that S.E.A. Leasing failed to preserve its = limitations=20 defense because its arguments on appeal differed from its = arguments in its=20 motion for new trial. Instead, the Steeles argued the merits of = the=20 statute-of-limitations issue at length in their brief and in their = reply=20 brief. The only reasonable inference is that the Steeles, unlike = the=20 panel, did not believe that the statute-of-limitations argument = had been=20 waived because S.E.A. Leasing's arguments on appeal differed from = those=20 below. The panel has drawn this conclusion sua = sponte.

I = would=20 hold that S.E.A. Leasing preserved its statute-of-limitations = challenge=20 for appeal. I would, = therefore,=20 address the merits of S.E.A. Leasing's arguments that the statute = of=20 limitations barred the Steeles' suit, on which I express no = opinion=20 here.

Failure to=20 Preserve Objection to Legal Sufficiency of Expert Testimony to = Support the=20 Judgment

In its=20 third and fourth issues, S.E.A. Leasing argues that the trial = court erred=20 by admitting the expert-witness testimony of Emil Shebelbon over = its=20 objection because the Steeles did not meet their burden of showing = that=20 Shebelbon's opinion regarding the unreasonable danger posed to = Jeff Steele=20 by S.E.A. Leasing's negligence was based on a sufficiently = objective=20 foundation and sufficiently reliable methodology to constitute = legal=20 evidence; Shebelbon's expert testimony was conclusory and = non-probative;=20 and thus there was legally insufficient evidence of an = unreasonably=20 dangerous condition to support the jury verdict that S.E.A. = Leasing's=20 negligence proximately caused Jeff Steele's injury and the trial = court's=20 judgment on that verdict holding S.E.A. Leasing liable to the = Steeles for=20 premises liability.^{=20
(4)}

Although=20 S.E.A. Leasing did object to Shebelbon's qualifications and = testimony, the=20 panel finds the objections insufficient to preserve error, as set = out in=20 its opinion. In addition to those objections, however, S.E.A. = Leasing also=20 argued in its motion for new trial, "Shebelbon's expert testimony = should=20 have been excluded both on grounds that it lacks reliable basis = and on=20 grounds that it fails to assist the trier of fact. . . . = Plaintiffs=20 presented nothing more than evidence of their expert's experience = as=20 evidence of the validity of his conclusions."

The panel = opines in=20 overruling S.E.A. Leasing's third issue, that "[a]n = objection to=20 testimony, including the qualifications of experts and the = reliability of=20 their theories and methodology, must be raised at the trial-court = level,=20 and failure to do so waives any error on these grounds," but that = "S.E.A.=20 Leasing failed to preserve for appellate review any challenge = relating to=20 Shebelbon's expert=20 qualifications or the reliability of his testimony." = The panel = then=20 acknowledges, inconsistently, in its approach to issue four that = "no trial=20 objection is required '[w]hen the testimony is challenged as = conclusory or=20 speculative and therefore non-probative on its face.'" However, = rather=20 than address the legal sufficiency of Shebelbon's testimony to = support the=20 jury's finding of an unreasonably dangerous condition, the panel = then=20 states that "an attack on the sufficiency of the evidence in a = jury trial=20 must be preserved in the trial court." After observing that = "S.E.A.=20 Leasing argues that it preserved this challenge in its motion for = new=20 trial," the panel opines that, "as discussed above, S.E.A. = Leasing's=20 motion for new trial did not preserve any complaint on appeal = because of=20 S.E.A. Leasing's failure to timely pay the filing fee before the = trial=20 court lost its plenary power." Thus, it finds that S.E.A. = Leasing's third=20 and fourth issues, like all of its other issues, were not = preserved, and=20 it affirms the trial court's judgment on the verdict.

I = would=20 hold that S.E.A. Leasing preserved its objection to the = reliability and=20 conclusiveness of Shebelbon's testimony, hence to the legal = sufficiency of=20 that evidence to support the judgment, through its motion for new = trial=20 and, even if it had not, it could still have raised the legal = sufficiency=20 of that allegedly conclusory and non-probative nature of that = testimony to=20 support the judgment as an issue on appeal.

As S.E.A. = Leasing=20 pointed out in its appellate brief, and again points out in its = motion for=20 reconsideration, "[t]he Texas Supreme Court has long held that=20 unsubstantiated expert testimony may not be presented to a jury, = even=20 absent any objection." See Merrell Dow Pharm. v. = Havner,=20 953 S.W.2d 706, 712 (Tex. 1997) ("When the expert 'brings to court = little=20 more than his credentials and a subjective opinion,' this is not = evidence=20 that would support a judgment. . . . If for some reason such = testimony=20 were admitted in a trial without objection, would a reviewing = court be=20 obliged to accept it as some evidence? The answer is no."). S.E.A. = Leasing=20 acknowledges that the rule was modified by the supreme court in=20 Maritime Overseas Corp. v. Ellis, which held that an = appellant=20 must have objected to an expert's methodology to preserve that = issue for=20 appeal. See 971 S.W.2d 402, 408-10 (Tex. 1998); see = also=20 Coastal Transp., 136 S.W.3d at 232-33. However, as S.E.A. = Leasing=20 also points out, in Coastal Transport, the supreme court = opined=20 that "[e]ven in Maritime Overseas, however, we recognized = that an=20 objection to the admissibility of the expert testimony may not be = needed=20 to preserve every no evidence challenge; instead, we drew a = distinction=20 between challenges to an expert's scientific methodology and 'no = evidence=20 challenges where, on the face of the record, the evidence lacked = probative=20 value.'" Coastal Transp., 136 S.W.3d at 233.

The court=20 explicitly stated in Coastal Transport, "We disagree that = an=20 objection is needed to preserve a no-evidence challenge to = conclusory=20 expert testimony." Id. at 232. It explained that = "[o]pinion=20 testimony that is conclusory or speculative is not relevant = evidence,=20 because it does not make the existence of a material fact 'more = probable=20 or less probable.'" Id. It continued, "Because we = conclude that=20 Maritime Overseas did not change the general rule that = bare=20 conclusions--even if unobjected to--cannot constitute probative = evidence,=20 we hold that Coastal did not waive its no-evidence challenge in = this=20 case." Id.

The court=20 reiterated this conclusion in City of Keller v. Wilson, = stating=20 that "incompetent evidence is legally insufficient to support a = judgment,=20 even if admitted without objection." 168 S.W.3d 802, 812 (Tex. = 2005). It=20 explained, "This exception frequently applies to expert testimony. = . . .=20 And if an expert's opinion is based on certain assumptions about = the=20 facts, we cannot disregard evidence showing those assumptions were = unfounded." Id. at 812-13. Thus, under City of = Keller,=20 evidence showing that supporting evidence is incompetent cannot be = disregarded when conducting a legal-sufficiency review. See = id.=20

In my view,=20 the panel opinion conflicts with Coastal Transport and = with=20 City of Keller. The panel should have addressed the = merits of=20 S.E.A. Leasing's third issue, challenging the foundations of = Shebelbon's=20 expert testimony, hence its competency as evidence. I also = disagree with=20 the panel's argument, with respect to S.E.A. Leasing's fourth = issue=20 regarding the preclusive effect for purposes of appeal of an = appellant's=20 failure to pay the fee on a motion for new trial, for the reasons = set=20 forth above. And, I disagree with its holding that S.E.A. Leasing = failed=20 to object in the trial court to the reliability and conclusory = nature of=20 Shebelbon's expert testimony and thus failed to preserve error as = to the=20 admissibility and legal sufficiency of that testimony to support = the=20 jury's finding that S.E.A. Leasing's premises posed an = unreasonable danger=20 to Jeff Steele.

I = would=20 hold that S.E.A. Leasing preserved its third and fourth issues for = appeal.=20 Therefore, I would address the merits of those issues, as to which = I=20 express no opinion here.

Conclusion

I = would=20 grant en banc reconsideration to reassert this Court's agreement = with=20 supreme court precedent regarding the requirements for = preservation for=20 appeal of legal issues for appeal and its conformity with the = mandate of=20 Rule of Civil Procedure 1. Because I do not believe controlling = law=20 supports any of the panel's conclusions regarding S.E.A. Leasing's = waiver=20 of its arguments on appeal, I would address S.E.A. Leasing's = appeal on its=20 merits.

Evelyn V.=20 Keyes

Justice

Panel=20 consists of Justices Taft, Alcala, and Hanks.

A = majority=20 of the justices of the Court voted to deny en banc = reconsideration.=20 See Tex. R. App. P. 41.2, 49.7.

Justice=20 Taft, joined by Justices Alcala and Hanks, concurring in the = denial of en=20 banc reconsideration.

Justice=20 Keyes, dissenting from the denial of en banc reconsideration.=20

1. Rule 41.2, governing decisions on en banc = consideration, provides, in relevant part:

(c) En=20 Banc Consideration Disfavored. En banc consideration of a = case is not=20 favored and should not be ordered unless necessary to secure or = maintain=20 uniformity of the court's decisions or unless extraordinary = circumstances=20 require en banc consideration. . . .

Tex. R.=20 App. P. 41.2(c).=20

2. The Jamar court advised that, = "absent rare=20 circumstances," the trial court should not consider a motion for = new trial=20 before the filing fee is paid, but it did not preclude such = consideration.=20 See Jamar v. Patterson, 868 S.W.2d 318, 319 = (Tex. 1994).=20

3. In his "Concurring Opinion on Denial of = En Banc=20 Reconsideration," Justice Taft states that I "contend[] in part = that the=20 panel's holding was erroneous because the trial court conducted an = oral=20 hearing on S.E.A. Leasing's motion for new trial and overruled it = and the=20 Steeles made no objection in the trial court to S.E.A. Leasing's = failure=20 to pay the filing fee for its motion, nor did they object to the = trial=20 court's consideration of S.E.A. Leasing's motion." S.E.A. = Leasing,=20 Inc. v. Jeff Steele & Melissa Steele, 01-05-00189-CV, = ___WL ___=20 (Tex. App.--Houston [1st Dist.] Aug. 17, 2007, no pet. h.) (Taft, = J.,=20 concurring in denial of en banc reconsideration). The concurrence=20 complains that I can "support this position only by relying on = exhibits=20 attached to S.E.A. Leasing's motion for rehearing, rather than on = anything=20 in the record before this Court."

I, in fact,=20 believe, for the reasons stated above, that the panel opinion = would be=20 erroneous whether the trial court had held a hearing on S.E.A. = Leasing's=20 motion for new trial and expressly overruled it, as it did, or = whether it=20 had let the conditionally filed motion be overruled by operation = of law.=20 My objection is to the panel's refusal to consider the motion=20 conditionally filed, contrary to all other courts, including the = supreme=20 court, and its insistence that S.E.A. Leasing's non-payment of the = filing=20 fee for its motion for new trial precludes the preservation of = legal error=20 asserted only in the motion. See Garza v. Garcia, 137 = S.W.3d 36,=20 38 (Tex. 2004).

Nevertheless,=20 assuming the materiality of the hearing to my argument, the = concurrence=20 complains that I could not properly consider the evidence that = such a=20 hearing was held because S.E.A. Leasing did not present that = evidence to=20 this Court earlier. The matter of whether the trial considered = S.E.A.=20 Leasing's motion for new trial would, however, never have come up = had the=20 Steeles not raised for the first time in their = appellate=20 brief the issue of S.E.A. Leasing's non-payment of the filing = fee as=20 grounds for this Court's denying review of the substantive legal = issues=20 S.E.A. Leasing preserved in its motion for new trial. In this = regard, I=20 observe that there is no objection by the Steeles in the = clerk's=20 record to S.E.A. Leasing's failure to pay the fee. Had there = been=20 such an objection in the trial court, the non-payment could have = been=20 easily cured.

Contrary to=20 the panel, I would hold that the Steeles' objection to = S.E.A.=20 Leasing's non-payment of the filing fee on its motion for new = trial=20 was waived by their failure to object to the non-payment = in the=20 trial court. See Tex. R. App. P. 33.1(a) ("As a = prerequisite to=20 presenting a complaint for appellate review, the record must show = that:=20 (1) the complaint was made to the trial court by a timely request, = objection, or motion that: (A) stated the grounds for the ruling = that the=20 complaining party sought from the trial court . . . .").=20

4. Jury charge question two asked, "Did the=20 negligence, if any, of those named below proximately cause the = injury in=20 question? With respect to the condition of the premises, S.E.A. = Leasing=20 Inc. was negligent if--(a.) the condition posed an = unreasonable risk=20 of harm, and (b.) S.E.A. Leasing, Inc. knew or reasonably = should=20 have known of the danger, and (c.) S.E.A. Leasing, Inc. = failed to=20 exercise ordinary care to protect Jeff Steele from the danger, by = both=20 failing to adequately warn Jeff Steele of the condition and = failing to=20 make that condition reasonably safe." (Emphasis added.) The jury = answered=20 "yes" to S.E.A. Leasing's negligence as a cause of the injury and = "no" to=20 Jeff Steele's own negligence as a cause of the=20 injury.

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