Kelly Associates v. Aetna Casualty and Surety Company

Sears McGee, Justice Respondent's motion for rehearing is granted in part. Aetna, in its motion for rehearing, correctly points out that this case should be remanded to the trial court. Both parties moved for summary judgment in the trial court. Although Kelly has assigned as error the granting of Aetna's motion for summary judgment, it has not properly preserved the error of the trial court in failing to grant its motion for summary judgment. The amount of damages also must be determined. Therefore, we cannot render judgment, but must remand the case to the trial court. Gulf, Colorado & Santa Fe Ry. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Farah Mfg. Co. v. Continental Airlines, Inc., 524 S.W.2d 815 (Tex. Civ. App.--El Paso 1975, writ ref'd n.r.e.).