law-sj-liability-only | summary judgment standards | evidentiary requirements for SJ
SJ ON LIABILITY ONLY (partial summary judgment)
Rule 166a(a) provides, "A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as to
amount of damages." Tex. R. Civ. P. 166a(a).
Thus, Rule 166a(a) would not support our affirmance of the trial court's summary judgment in its entirety
where the claimants have failed to show that there is no genuine issue as to amount of damages. Rather,
Rule 166a(a) permits a court to adjudge liability by partial summary judgment and then try damages issues
on their merits. See, e.g., Hanover Fire Ins. Co. v. Bock Jewelry Co., 435 S.W.2d 909, 919 (Tex. Civ.
App.--Dallas 1968, writ ref'd n.r.e.).
Rule 44.1(b) of the Texas Rules of Appellate Procedure provides, "The court may not order a separate
trial solely on unliquidated damages if liability is contested." Tex. R. App. P. 44.1(b). "If a party files a
general denial in the trial court, that pleading puts a plaintiff to his or her proof on all issues, including
liability; its effect extends to contesting liability in the event of remand on appeal." Estrada v. Dillon, 44
S.W.3d 558, 562 (Tex. 2001). "A party's failure to present on appeal an additional discrete challenge to
liability when that party challenges damages does not defeat the plain language of rule 44.1(b) proscribing
a separate trial on unliquidated damages when liability is contested." Id.
In the present case, Rosales and Ontiveros contested liability by filing general denials. Since Rule 44.1(b)
proscribes a separate trial on unliquidated damages when liability is contested, we remand the issue of
breach of contract liability as well as breach of contract damages. See Tex. R. App. P. 44.1(b); Estrada, 44
S.W.3d at 562.
Ontiveros v. Williams (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Hanks)
(breach of residential lease claim, mitigation of damages and failure to mitigate as affirmative defense,
trial by consent in summary judgment context, partial summary judgment on liability only,
proving amount of damages, attorney's fees)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-09-00454-CV Francisca Rosales and Jose Ontiveros v. Kimberly Williams
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Hon. Linda Storey
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