Opinion
NO. 14-15-00984-CV
03-07-2017
BRANDON BAILEY, Appellant v. KLIEBERT DEVELOPMENT, LLC, Appellee
On Appeal from the County Civil Court at Law No. 3 Harris County, Texas
Trial Court Cause No. 971598
MEMORANDUM OPINION
This is an appeal from a judgment rendered after a trial by jury. The dispositive issue is whether the trial court committed charge error when it submitted a question for breach of contract that was based on the parties' alleged oral agreement, rather than on their fully integrated written agreement. Concluding that the trial court did so err, we reverse the trial court's judgment and remand the case for additional proceedings consistent with this opinion.
BACKGROUND
The Contract. Brandon Bailey entered into a contract to purchase a home from Kliebert Development, LLC. The contract was reduced to writing, and the parties' chosen terms were standard in nearly every way, except one. The parties inserted into their form contract a special provision, which read: "Builder to have salvage rights on materials removed from the home." Both parties agree that the "Builder" in this provision refers to Kliebert.
To further describe Kliebert's salvage rights, the parties executed an amendment, which read: "Salvage rights to include: mantel in master, plumbing fixtures to include master bath fixtures (plumbing) and kitchen faucet. Bar sink and faucet." For ease of reference, we identify the objects listed in this amendment collectively as the "salvage items."
After the parties closed on the property, a dispute arose over Kliebert's salvage rights. Kliebert anticipated that Bailey would remodel the home at some time before he moved in. Kliebert also anticipated that, as part of this remodel, Bailey would replace the salvage items because they did not comport with his design aesthetic. Kliebert wanted to reclaim the salvage items because they were brand new, except the mantel, which was an antique. If the salvage items were returned undamaged, Kliebert hoped to reuse them in another home that it was then constructing. Kliebert contacted Bailey about reclaiming the salvage items, but Bailey's responses were evasive.
Bailey eventually moved into the home without tendering any of the salvage items to Kliebert. When Kliebert learned that the home was being occupied, Kliebert notified Bailey that the fixtures could not be installed in a new home if the fixtures were not in original condition. Believing that it had been entitled to a return of the fixtures in their original condition, Kliebert sent Bailey an invoice for more than $39,000. This figure represented the supposed cost of both the fixtures and the mantel. Kliebert later increased this invoice to more than $59,000.
Bailey did not pay the invoice. Instead, he informed Kliebert that the salvage items would be available for pick up when they are actually removed from the home. Months later, Bailey removed the mantel and the kitchen fixtures, and he offered them to Kliebert. Bailey did not remove the remaining fixtures. Of those salvage items that were returned, Kliebert complained that the mantel had been damaged and that the kitchen fixtures were worthless.
Kliebert sued for breach of contract, alleging that it had agreed to reduce the purchase price of the home by $50,000 in exchange for Bailey's promise to return the salvage items. The contract did not memorialize the terms of this price-reduction agreement—at least, not in the promissory language of Kliebert's allegation. The contract merely reflected the final, bargained-for price of the home, which was $2.55 million. Nevertheless, Kliebert claimed that Bailey had breached the contract by failing to return all of the salvage items as he allegedly had promised.
The Motion to Exclude. Before trial, Bailey filed a motion to exclude, wherein he identified the crux of the litigation as follows: "The parties disagree as to whether the special provision required the items to be removed or, rather, simply gave Plaintiff the salvage rights if the items were removed."
Bailey then explained that Kliebert's case was based on an invalid theory. Bailey asserted that there was no separate agreement to reduce the purchase price of the home by $50,000 in exchange for the salvage items. According to Bailey, there was only one agreement—the written contract that both he and Kliebert had signed.
Bailey also explained that, during the negotiation phase, Kliebert had sought $2.6 million for the home, which is exactly $50,000 more than the actual contract price. Bailey argued that if there was an oral agreement that he would remove the salvage items and return them to Kliebert in exchange for a reduction in Kliebert's desired price, then that oral agreement did not survive the written contract's merger clause. That merger clause provided: "This contract contains the entire agreement of the parties and cannot be changed except by their written agreement." In light of this clause, Kliebert explained that the written contract did "not expressly provide for any independently enforceable sub-agreement."
Bailey concluded that Kliebert's contractual claim "fails as a matter of law," but he had not previously requested a summary judgment on that point, and he did not request one in his motion to exclude. Instead, Bailey asked the trial court "to exclude Plaintiff's arguments as to the Plaintiff's breach of contract theory."
When the trial court conducted a hearing on the motion to exclude, Bailey began the hearing with more legal points. He argued that Kliebert's case was based entirely on an oral agreement that "didn't make it into the written agreement." Bailey then addressed Kliebert's damages claim for $50,000, which he characterized as a request for liquidated damages. Bailey said that this request was invalid because it, too, could not be found in the written contract.
Kliebert responded that the oral agreement was "part of the contract." The trial court expressed concern with that position: "It sounds like to me you want to proceed with an oral and written contract. . . . If there is a merger clause in here and the contract is unambiguous, then you can't use parol evidence to describe or address the contents of the party's intention to include or not to include those items."
Kliebert then asserted, for the first time, that the contract was ambiguous. Kliebert did not identify a particular word or phrase that it believed was subject to more than one reasonable interpretation. Rather, Kliebert argued that the contract was ambiguous because "it did not give a certain time frame" in which the salvage items must be removed.
Bailey objected at this point, alerting the trial court that Kliebert had not pleaded an ambiguity. The trial court then asked Bailey for the relief that he sought, to which he answered: "The relief sought is that the plaintiffs do not present evidence or make an argument that the price of the home should have been $2.6 million."
The trial court granted Bailey's motion, but it clarified that Kliebert would be allowed to present evidence that the fair market value of the salvage items was $50,000 at the time of closing. Bailey responded, "If that's the argument, then I disagree, but I can live with that."
The Trial. Kliebert ultimately presented evidence to the jury that the contract price should have been $2.6 million. Kliebert explained that it had reduced the contract price to $2.55 million because it had bargained with Bailey for a return of the salvage items, which Kliebert had valued at $50,000. Kliebert also explained that the parties had reached an oral agreement that the salvage items were supposed to have been delivered immediately after the closing. Kliebert's co-owner testified as follows:
Q. You are alleging that basically there was an agreement that the salvaged items were to be removed immediately?
A. Yes.
Q. That language is not in the contract.
A. It was a verbal contract.
Bailey moved for a directed verdict, arguing that "the contract clearly does not contain the terms that the Plaintiff wishes to read into it." He also asserted that "there is no evidence or insufficient evidence to support a breach of contract . . . if we had no obligation to give those things until they were removed from the house, which is what the term of the contract is." The trial court denied that motion.
The Jury Charge. Both sides submitted proposed jury questions, but the trial court rejected them all and prepared the charge on its own. Question One of the trial court's charge read as follows:
Did Brandon Bailey and Kliebert Development, LLC enter into an agreement for the reduction of the purchase price of the home at 4511 Staunton located in Houston, Texas by $50,000 for the removal of a mantel in the master, plumbing fixtures to include master bath fixtures (plumbing) and kitchen faucet, bar, sink, and faucet from the house at 4511 Staunton located in Houston Texas?
Bailey objected to this question on two grounds. First, he argued that Question One amounted to an improper comment on the weight of the evidence because the contract did not contain any term for a $50,000 reduction in price. Second, he argued that Question One "presume[d] an oral agreement," which was prohibited by the contract's merger clause.
The trial court overruled Bailey's objection. It explained that the "overwhelming weight of the testimony was there was some sort of agreement for a reduction in the value of the house in exchange for some items in the house to be returned, and that that reduction would have been $50,000 for the return of the items." The trial court further explained that it was submitting Question One on the terms of an oral agreement because the contract was ambiguous, which allowed for the consideration of parol evidence. The trial court did not identify what the ambiguity was, but it granted Kliebert leave to amend its petition in order to plead an ambiguity. Kliebert supplemented its pleadings, but it did not identify the ambiguity either.
The charge, when it was finally submitted to the jury, resulted in confusion. The jury returned a note, asking for clarification on Question One. The jury asked, "[By] 'enter into an agreement,' do you mean a contractual agreement or verbal agreement or both?" The trial court responded, "It can be either or both, and an agreement must have sufficient certainty to form a meeting of the minds on the subject of the agreement." Bailey objected to the trial court's answer, reiterating his objection that the charge should have been submitted on the terms of the written contract, not the alleged oral agreement. The objection was overruled.
The jury then returned a verdict. It found that Bailey had entered into the agreement described by Question One, that Bailey had failed to comply with that agreement, and that Kliebert was entitled to recover $50,000 in damages, plus attorney's fees. The trial court rendered a judgment based on this verdict. Bailey moved for a judgment notwithstanding the verdict, but that motion was denied by operation of law.
ISSUES PRESENTED
At the outset, we wish to clarify the scope of our review.
Bailey filed this appeal, raising five issues in his opening brief. In his first issue, Bailey asserts that the trial court erred by "denying" his motion to exclude. Recalling that the trial court actually granted Bailey's motion but permitted Kliebert to present evidence of an alleged oral agreement, we understand this issue to be a general complaint about the trial court's admission of parol evidence. In his second and third issues, Bailey argues, respectively, that the trial court charged the jury erroneously in Question One and that it gave an improper response to the jury's request for clarification. In his fourth and fifth issues, Bailey complains about attorney's fees.
Bailey has not asked this court to hold that there is legally insufficient evidence of breach because he has no duty under the contract to remove the salvage items from the home. Even though Bailey argued that point in his motion for directed verdict, he does not bring that same point in his opening brief, and we may not consider it as a ground for disposing of the case. We may only focus on the points that are properly before us.
Now that the scope of our review has been defined, we can address the merits of Bailey's appeal. Because Bailey's first three issues are related, we consider them together. We will begin our analysis with a discussion of the parol evidence rule. After explaining that Bailey did not waive any complaint regarding the admission of parol evidence, we will explain that Kliebert's evidence constituted parol evidence and that it was not admissible under any exception to the parol evidence rule. We will address two exceptions in particular: ambiguity, which was argued below, and collateral and consistent agreement, which is raised for the first time on appeal. Finally, we will explain that parol evidence led the trial court to submit an erroneous charge and note to the jury, and that these errors probably caused the rendition of an improper judgment. We need not address Bailey's complaints about attorney's fees because his first three issues are dispositive.
ANALYSIS
Parol Evidence. Despite its name, the parol evidence rule is not a rule of evidence. See Hubacek v. Ennis State Bank, 159 Tex. 166, 169, 317 S.W.2d 30, 31 (1958). It is actually a rule of substantive law that defines the subject matter of contract interpretation. See Restatement (Second) of Contracts § 213 cmt. a.
The parol evidence rule provides that the terms of a binding, integrated agreement cannot be contradicted by the terms of a prior or contemporaneous agreement. See Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). When contracting parties reduce their agreement to writing, and that writing contains a merger clause, any prior or contemporaneous agreements are presumed to have merged into that final writing. See DeClaire v. G&B McIntosh Family Ltd. P'ship, 260 S.W.3d 34, 45 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Any terms not expressly set forth in the writing are presumed to have been abandoned before execution of the writing, or alternatively, they are presumed to have never been made. See Hua Xu v. Lam, No. 14-13-00730-CV, 2014 WL 5795475, at *11 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.).
Evidence that violates the parol evidence rule has no legal effect and "merely constitutes proof of facts that are immaterial and inoperative." See Piper, Stiles & Ladd v. Fid. & Deposit Co. of Md., 435 S.W.2d 934, 940 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ ref'd n.r.e.). Such evidence cannot be considered by the court when it construes the contract, even if the evidence is admitted without objection. See Johnson v. Driver, 198 S.W.3d 359, 364 (Tex. App.—Tyler 2006, no pet.).
There are exceptions to this rule. Parol evidence may be admitted to show (1) that the contract was induced by fraud, accident, or mistake; (2) that an agreement was to become effective only upon certain contingencies; or (3) in the case of ambiguity, that the parties' true intentions differ from those expressed in the agreement. See Gonzalez v. United Bhd. of Carpenters & Joiners of Am., Local 551, 93 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Parol evidence may also be admitted under an additional exception to show collateral, contemporaneous agreements that are consistent with the underlying written agreement. See DeClaire, 260 S.W.3d at 45. But this exception does not permit parol evidence that varies or contradicts the express or implied terms of the written agreement. Id.
Having laid out the precepts of the parol evidence rule, we now consider its application to the facts of this case. The trial court determined that the contract was ambiguous, and it admitted Kliebert's parol evidence pursuant to the ambiguity exception to the parol evidence rule. Bailey takes issue with the admission of parol evidence, contending that the contract is unambiguous. In response, Kliebert argues that this issue is waived because Bailey produced exhibits and elicited testimony relating to the same parol evidence of which he complains. We first address this waiver argument before answering the question of the contract's alleged ambiguity.
Waiver. Kliebert relies on the following rule: "A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character." Sw. Elec. Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998). Kliebert argues that this rule applies because Bailey voluntarily introduced evidence of the parties' alleged oral agreement.
The factual premise of Kliebert's argument is true: Bailey indeed produced evidence relating to the disputed oral agreement. However, the legal effect of Bailey's evidence is not as Kliebert believes.
When one side refers to contested evidence first, that side has "opened the door" to the evidence, and the opposing party may "defend itself by explaining, rebutting, or demonstrating the untruthfulness" of the evidence without waiving its objection to the admission of the evidence. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex. 1986) (op. on reh'g); Harris Cnty. Flood Control Dist. v. Taub, 502 S.W.3d 320, 326 (Tex. App.—Houston [14th Dist.] 2016, pet. filed). This is the rule that applies here because it was Kliebert, not Bailey, who opened the door to the evidence of the alleged oral agreement.
Kliebert, during its case-in-chief, referred repeatedly to the parties' negotiations. The very first witness to take the stand was Kliebert's realtor, and he testified that Kliebert had agreed to a reduction in price because the parties had made another agreement about the removal of the salvage items. One of Kliebert's co-owners likewise testified that Kliebert had agreed to "come down $50,000 in exchange for plumbing fixtures that [Bailey] selected to be given back." These terms were oral, not written.
Bailey responded with his own evidence, which included email chains between the parties. These email chains discuss the alleged oral agreement, as Kliebert correctly points out, but they also document Bailey's differing interpretation of the final integrated contract. In one communication, Bailey tries to explain to Kliebert, "You do have salvage rights to the plumbing fixtures and mantle like the contract says. When the items are removed I will call you so you can pick them up." This evidence tied into Bailey's live testimony, in which he explained his belief that Kliebert had a contractual right to the salvage items "if they became salvage and they were removed from the house."
The record shows that Bailey introduced his evidence to counter Kliebert's evidence of the oral agreement and to offer a different interpretation of the written contract. Because Kliebert opened the door to the oral agreement, Bailey was entitled to respond to that evidence in the way that he did. "He was not required to give up at trial in order to preserve his complaint for appeal." Fleming v. Kinney ex rel. Shelton, 395 S.W.3d 917, 932 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). We conclude that Bailey did not waive his complaint about the admission of parol evidence by introducing the same or similar evidence himself.
Ambiguity. We now consider whether the contract is ambiguous. If it is, then the trial court was correct in admitting the parol evidence. Otherwise, the trial court's decision was an abuse of discretion.
The rules of contract interpretation are as follows. When interpreting a contract, our primary concern is to ascertain and give effect to the written expression of the parties' intent. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). By this approach, we "strive to honor the parties' agreement and not remake their contract by reading additional provisions into it." See Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118, 126 (Tex. 2010). The parties' intent is governed by what is written in the contract, not by what one side contends it intended but failed to say. Id. at 127. Thus, "it is objective, not subjective, intent that controls." See Matagorda Cnty. Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) (per curiam).
We give the words of the contract their plain and ordinary meaning unless the contract indicates that the parties intended a different meaning. See Dynegy Midstream Servs., Ltd. P'ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). We do not consider only those parts of a contract that favor one party. See City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005). Rather, we examine the writing as a whole to harmonize and give effect to all of the contract's provisions. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). We also bear in mind the particular business activity to be served, and when possible and proper to do so, we avoid a construction that is unreasonable, inequitable, and oppressive. See Frost Nat'l Bank v. L&F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam).
We determine whether a contract is ambiguous by looking to the contract as a whole in light of the circumstances present when the parties executed it. See Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731 (Tex. 1981). The contract is unambiguous if it can be given a certain or definite meaning as a matter of law. See El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012). When a contract is unambiguous, we must enforce it as written without considering parol evidence or giving the contract "a meaning different from that which its language imports." See David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (per curiam).
Whether a contract is ambiguous is a question of law for the court to decide. See In re Deepwater Horizon, 470 S.W.3d 452, 464 (Tex. 2015). We may not refer to parol evidence to prove the existence of an ambiguity. See Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (per curiam). Nor may we conclude that a contract is ambiguous simply because the parties advance conflicting interpretations. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). Only if a contract is subject to more than one reasonable interpretation after applying the pertinent rules of contract construction will we determine that the contract is ambiguous. See RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 119 (Tex. 2015).
We now apply these rules to the contract's special provision, which, for the sake of the reader, we repeat here: "Builder to have salvage rights on materials removed from the home."
The special provision unambiguously confers to Kliebert the salvage rights on materials removed from the home. Some of these materials are specifically identified in the amendment to the contract, but neither the amendment nor the special provision explains what is meant by the phrase "salvage rights." In the absence of a contractual definition, we give the words in this phrase their plain and ordinary meaning.
The common understanding of "salvage," when used as a verb, is to "retrieve or preserve (something) from potential loss or adverse circumstances." See New Oxford American Dictionary 1544 (Angus Stevenson & Christine Lindberg eds., 3d ed. 2010). With this understanding, the special provision has a certain and definite meaning: Kliebert has the right to salvage—i.e., to retrieve or to preserve—materials removed from the home.
This interpretation is faithful to the text, which we must presume is the clearest expression of the parties' intent. This interpretation is also reasonable in light of another provision in the contract, wherein Kliebert agreed to provide Bailey with an "upgrade/change bid" for additional remodels to the home. If the parties anticipated that materials would be removed from the home as part of an upgrade, as this other provision clearly contemplates, then it makes sense that Kliebert would bargain for the right to salvage the materials that were actually removed. Bearing in mind this anticipated relationship, our interpretation of the special provision is logical, and we can enforce it as written.
Kliebert argues that the phrase "salvage rights" is ambiguous, but the argument is threadbare. Kliebert never identifies what possible meanings could apply to the phrase. Kliebert simply emphasizes evidence that the special provision was added to the contract because Bailey wanted to remove certain materials from the home and Kliebert wanted to reuse those materials in another home it was building. From this evidence, Kliebert implies that the special provision obligated Bailey to remove the salvage items from the home. This understanding of "salvage rights" is not supported by the contract's plain text. This understanding is supported only by parol evidence, and parol evidence may not be used to create an ambiguity in the contract. See Nat'l Union Fire Ins. Co., 907 S.W.2d at 520.
We conclude that the contract is subject to only one reasonable interpretation. Because the contract is unambiguous, the trial court erred by admitting the parol evidence pursuant to the ambiguity exception.
Collateral , Consistent Agreement. Kliebert argues alternatively that the trial court correctly admitted evidence of the oral agreement because the oral agreement was collateral to and consistent with the written contract. This point was not litigated below, and it lacks merit here.
As we explained earlier, even under the exception for collateral and consistent agreements, parol evidence may not be considered if it varies or contradicts the express or implied terms of the written agreement. See DeClaire, 260 S.W.3d at 45. The evidence of the parties' oral agreement violates this rule to the extent that it varies the terms of the final contract price. The written contract provides that Bailey agreed to pay $2.55 million for the home—not $2.6 million if he failed to return the salvage items to Kliebert.
And to the extent that Kliebert alleges that Bailey promised to return the salvage items, that promise is not expressed in the text of the written contract, which is completely integrated because of the merger clause. Bailey's alleged promise would not be collateral to and consistent with the written agreement because the rights and obligations relating to the salvage items are already within the scope of the written contract. See Restatement (Second) of Contracts § 213(2) ("A binding completely integrated agreement discharges prior agreements to the extent they are within its scope."). This alleged promise adds to the contract.
We conclude that the exception for collateral and consistent agreements is not applicable to this case. Because Kliebert argues no other exception to the parol evidence rule, we conclude that the trial court abused its discretion by admitting evidence of the parties' alleged oral agreement.
Rather than perform an independent harm analysis for the improper admission of evidence, Bailey joins the evidentiary complaint of his first issue with the charge-error complaints of his second and third issues. We will follow the same approach.
Charge Error. Bailey argues that the admission of parol evidence was harmful because the trial court improperly based Question One on the terms of an oral agreement, rather than on the terms of the written contract. Bailey also complains that the trial court invited the jury to consider this parol evidence after the jury submitted a request for clarification about Question One.
Kliebert responds that we should deem these points waived because Bailey cited no authorities beyond the standard of review. We have discretion to deem a point waived because of inadequate briefing. See Elaazami v. Lawler Foods, Ltd., No. 14-11-00120-CV, 2012 WL 376687, at *6 (Tex. App.—Houston [14th Dist.] Feb. 7, 2012, no pet.) (mem. op). However, we must still construe briefs reasonably, yet liberally, so that the right to appellate review is not lost by waiver. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008). We believe that Bailey adequately briefed his complaints; the authorities cited in his first issue pertain to his second and third issues too. We decline to exercise our discretion by deeming these points waived. Accordingly, we proceed to the merits.
When giving a charge to the jury, the trial court must "submit the questions, instructions and definitions" that are "raised by the written pleadings and the evidence." See Tex. R. Civ. P. 278. A trial court has broad discretion in submitting jury questions and instructions. See DeWolf v. Kohler, 452 S.W.3d 373, 394 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We review alleged charge errors for abuse of that discretion. See Indian Oil Co. v. Bishop Petroleum, Inc., 406 S.W.3d 644, 658 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
The trial court submitted Question One of its charge based on the terms of an oral agreement, rather than on the terms of the parties' written agreement. Because the evidence of the oral agreement violates the parol evidence rule and "merely constitutes proof of facts that are immaterial and inoperative," see Piper, Stiles & Ladd, 435 S.W.2d at 940, we conclude that the trial court abused its discretion by submitting Question One as written. See Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 800 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (concluding that a charge based on inadmissible parol evidence was erroneous).
When, as here, the trial court commits charge error, the trial court's judgment must be reversed if the error "probably caused the rendition of an improper judgment." See Tex. R. App. P. 44.1(a)(1). To determine whether the charge error probably caused the rendition of an improper judgment, we examine the entire record. See Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753 (Tex. 2006).
The record demonstrates that Kliebert's entire case was built on the terms of an oral agreement that was never reduced to writing. The jury identified this oral agreement as being separate from the written contract, and the trial court, in its response to the jury's request for clarification, invited the jury to consider the oral agreement when it answered Question One. Because the jury's finding of breach was predicated on an affirmative finding under Question One, the trial court's error "contributed in a substantial way to bring about the adverse judgment." See Guniganti v. C&S Components Co., 467 S.W.3d 661, 666 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
Kliebert argues that the trial court's error, if any, was harmless because the jury would have reached the same verdict under Bailey's proposed charge. To the extent Kliebert believes that Bailey's proposed charge is defective, this point is immaterial. The submission of a correct charge was the trial court's responsibility, not Bailey's. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 158 (Tex. 1994). Bailey was only required to object to the charge, and he did that. See Religious of Sacred Heart of Tex. v. City of Houston, 836 S.W.2d 606, 614 (Tex. 1992).
We conclude that the trial court's charge error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1).
Remedy. Based on the foregoing, the trial court's judgment must be reversed. Bailey requests that we also render judgment that Kliebert take nothing in its claims against him. Bailey makes this request in his prayer for relief, but nowhere in his opening brief does he explain why he is entitled to a rendition. His only liability points are presented in his first three issues, which complain about the admission of evidence, an improper jury question, and the trial court's response to the jury's request for clarification. These points entitle Bailey to a new trial, and that is the relief we grant him. See Zaidi v. Shah, 502 S.W.3d 434, 445 (Tex. App.—Houston [14th Dist.] 2016, pet. filed).
CONCLUSION
The trial court's judgment is reversed and the case is remanded for additional proceedings consistent with this opinion.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Jamison, and Donovan.