By JoAnn Storey

As we all know, “[a] party who seeks to alter the court of appeals’ judgment must file a petition for review” in the Texas Supreme Court. TEX. R. APP. P. 53.1.

But, Rule 53.4 provides that a party may obtain a remand to the court of appeals for consideration of issues or points briefed in that court but not decided by that court, or may request the Supreme Court to consider such issues or points, by raising those issues or points in the petition, the response, the reply, any brief, or a motion for rehearing.

The Texas Supreme Court recently rejected a respondent’s Rule 53.1-waiver claim and, instead, applied Rule 53.4 in First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017). In that case, the jury found in plaintiff’s favor on a breach-of- contract claim and on a negligent-misrepresentation claim, and the trial court rendered judgment for the plaintiff on the verdict. The court of appeals affirmed the judgment on the breach-of- contract claim but reversed the judgment on the negligent-misrepresentation claim, holding that plaintiff could not recover for misrepresentation because he could not prove an injury independent from economic losses.

The Texas Supreme Court reversed the court of appeals’ judgment on the breach-of- contract claim. Plaintiff argued that, if the supreme court were to reverse the judgment on the breach-of- contract claim (which it did), then the court of appeals’ reason for denying recovery for misrepresentation no longer applied and defendant’s challenge to the sufficiency of the evidence must still be decided.

Defendant argued that plaintiff sought to “alter the court of appeals’ judgment” and was thus required to file a petition for review. The supreme court agreed that plaintiff sought to alter the judgment, but invoked Rule 53.4 as opposed to Rule 53.1. The parties briefed the issue of the sufficiency of the evidence supporting the misrepresentation claim in the court of appeals, but the court did not decide the issue. So, although plaintiff did not file a cross-petition for review, the Texas Supreme Court held that plaintiff’s failure did not preclude him from obtaining a remand to the court of appeals for a determination of the issue. (The Texas Supreme Court declined to determine the issue itself because the defendant did not address the sufficiency of the evidence in its briefing to the court).