Bluebonnet Express, Inc. v. Employers Insurance of Wausau

ON MOTION FOR REHEARING MURPHY, Justice. Appellee contends that in the absence of proper predicates to support Appellant’s legal insufficiency points of error, this court must remand the case for a new trial instead of rendering judgment, citing J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968). In making this assertion, Ap-pellee fails to recognize that Tex.R.Civ.P. 325 (Vernon 1977) was repealed in 1978, so that Razey no longer is viable authority for that proposition. Furthermore, Appellee asserts the interests of justice require a remand rather than a rendition of judgment for Appellant. It is within the wide discretion of appellate courts to remand after reversal. Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966); Gomez v. Gomez, 577 S.W.2d 327 (Tex.Civ. App. — Corpus Christi 1979, no writ). In our opinion, a retrial merely would provide Appellee a second opportunity to conduct its lawsuit properly. Appellee possessed all the necessary proof of its claim, including records, insurance eon-tracts, and witnesses, but failed to produce that evidence at trial. Justice is not served well by remanding every case which was tried on the wrong theory or in which the evidence was not fully developed! Kissman v. Bendix Home Systems, Inc., 587 S.W.2d 675, 678 (Tex.1979). Appellee’s Motion for Rehearing is overruled.