Wentworth Carter and Paulyne's Nursing Home, Inc. v. Sondra J. Lankford, et al--Appeal from 19th District Court of McLennan County

NO. 10-89-291-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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WENTWORTH CARTER AND

PAULYNE'S NURSING HOME, INC.

D/B/A NORTHSIDE NURSING CENTER,

Appellants

v.

SONDRA J. LANKFORD, ET AL,

Appellees

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From 19th Judicial District Court

McLennan County, Texas

Trial Court # 88-216-1

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OPINION ON REHEARING

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One of the complaints on rehearing about the disposition of points relating to the instruction on malice is that we misunderstood the objection to the instruction, which resulted in a misunderstanding of the arguments in support of the points, which ultimately resulted in an erroneous disposition of the points.

The opinion contains this paragraph:

The only objectionable matter pointed out to the court in the objection was the portion of the instruction, "with reckless disregard of whether [the criminal charges] were false or not." Apparently, the complaint was that this portion of the instruction was an incorrect statement of the law because it was not accompanied by the additional instruction, "The defendant is not required to investigate and confront the alleged suspect before filing a complaint." Both instructions adjacent to each other, according to the objection, would have correctly stated the law on malice. Carter has not cited any authority to support this contention and none has been found.

(Emphasis added).

Carter and the nursing home "adamantly deny" their objection ever "suggested" to the trial court that "[b]oth instructions adjacent to each other . . . would have correctly stated the law on malice." Moreover, they argue that the objection never urged the court to use "different words" to define malice but that it simply pointed out the instruction misstated the law.

An argument on rehearing over whether this court has misinterpreted an objection to the charge in disposing of a point illustrates perfectly the logic and wisdom behind the requirement that to preserve error an objection to the charge must distinctly point out the objectionable matter and the grounds of the objection. See Tex. R. Civ. P. 274. Otherwise, the argument degenerates into a battle of semantics, as here, a fight the trial and appellate court can never successfully win.

This court carefully chose the word "apparently" to signal our apprehension about stating the objection for purposes of disposing of the points. If we have misinterpreted the objection, the odds are that the trial court did also. If we acted erroneously, perhaps it was in speculating on what was meant by an objection to the charge. See Perkins v. Nevill, 58 S.W.2d 50, 52 (Tex. Comm'n App. 1933, holding approved).

Objections should be specific, constructive and helpful and in a form that allows the trial and appellate courts to understand their scope and meaning and, if necessary, to allow the trial court to modify the charge to cure any error. Chase Bag Co. v. Longoria, 45 S.W.2d 242, 244 (Tex. Civ. App. Waco 1932, writ dism'd w.o.j.). The objection in question fails the test in that regard. For this reason, point one is also overruled in the alternative because it failed to preserve error. See Tex. R. Civ. P. 274.

We neglected in our opinion on the merits to overrule points two and three, which complain that the instruction on malice was erroneous because it violated the "open court" provision of the Texas constitution and the due-process clause of the state and federal constitutions. These points are now overruled because the grounds urged on appeal were not included in the objection to the charge or argued or briefed on appeal. See Tex. R. Civ. P. 274; Tex. R. App. P. 52(a).

The motion for a rehearing is denied.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Hall (Retired) and Justice

James (Retired)

Motion for rehearing denied

Opinion delivered and filed July 11, 1991

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