Opinion
No. 05-16-00429-CV
11-29-2017
CHILDRESS ENGINEERING SERVICES, INC., Appellant v. JUAN A. DELEON, Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-12-07710
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Brown
Childress Engineering Services, Inc. (CES) appeals from a final judgment against it for breach of contract following a jury trial. In two issues, CES contends (1) the trial court abused its discretion by omitting a jury question on the formation of a contract between CES and appellee Juan A. DeLeon, and (2) the jury charge did not support the final judgment due to a conflict between the charge's breach of contract question and the jury's "no" answer to the charge's negligence question. For the following reasons, we affirm the trial court's final judgment.
BACKGROUND
DeLeon hired Rick Wasser of RWW Construction Management to consult on and manage construction of a building on property DeLeon owned in Grand Prairie, Texas. Wasser contacted CES about designing the building's foundation. CES Client Service Manager Hollie Lenckus sent a written proposal for the design to Wasser, and Wasser responded by email that "we would like to go forward" on the project. Wasser further wrote that he needed Lenckus "to list Juan A. DeLeon as the property owner. I have a contract to manage the project for him and a Power of Attorney but he is the property owner and developer." Wasser subsequently returned the proposal, which he signed "Rick W. Wasser-RWW CONST. MGMNT." with the notation "REPRESENTING OWNER-JUAN A. DELEON," and enclosed a check issued by DeLeon Masonry, Inc. as payment in full for the CES foundation plans and engineering.
Tony Childress, president and owner of CES, prepared the foundation design for the building. After construction, the foundation began to move and cracks appeared in the building's interior and exterior. Wasser reported the cracks to Childress and, for a time, Childress, Wasser, and DeLeon corresponded regarding potential remediation of the foundation. No agreement on remedial work was reached, and DeLeon subsequently initiated this action against CES alleging claims for negligence and breach of contract.
DeLeon also sued Childress, but Childress was not included in the jury charge and is not appealing the trial court's judgment.
The parties presented the case to the jury. The court's jury charge included the following question on the breach of contract claim: "Did [CES] fail to comply with an agreement to properly design the foundation of [DeLeon's] building." The charge defined DeLeon as follows:
"Juan DeLeon" includes the Plaintiff Juan DeLeon, individually, and any contractors, subcontractors, and subconsultants working at his direction on the project located at 1913 East Abrams Street, Arlington, Texas 76010.During the charge conference, CES objected to the failure to include a question on the formation of a contract between CES and DeLeon. The court overruled the objection and found as a matter of law that there was "no question of fact as to whether or not or no more than a scintilla regarding whether or not there was an agreement." CES did not object to either the breach of contract question or the definition of DeLeon.
The jury answered "no" to a negligence question, but "yes" to the breach of contract question and awarded DeLeon $100,000 in costs to repair the building. CES moved to disregard the jury verdict and for judgment notwithstanding the verdict. The trial court denied the motions and entered final judgment on the jury's verdict.
APPLICABLE LAW
We review alleged jury charge error for an abuse of discretion. Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.—Dallas 2002, pet. denied). A trial court must submit jury questions, instructions, and definitions that are raised by the pleadings and the evidence. TEX. R. CIV. P. 278; Triplex Commc'ns, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) ("If an issue is properly pleaded and is supported by some evidence, a litigant is entitled to have controlling questions submitted to the jury."); Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). To determine whether legally sufficient evidence supports submission of a jury question, we examine the record for evidence supporting submission and ignore evidence to the contrary. Elbaor, 845 S.W.2d at 243; Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 318 (Tex. App.—Houston [1st Dist.] 2011, no pet.). If there is no evidence to support a proposed jury question, the trial court may refuse to submit it. See TEX. R. CIV. P. 278; Elbaor, 845 S.W.2d at 243; Pitts & Collard, L.L.P., 369 S.W.3d at 318.
A party must present objections to a jury charge "before the charge is read to the jury," and the objections must be specific, pointing out "distinctly the objectionable matter and the grounds of the objection." TEX. RS. CIV. P. 272, 274; Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007). To preserve error, the objection must state "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a). Failure to timely object to error in a jury charge waives that error. TEX. RS. CIV. P. 272, 274; see, e.g., Equistar Chemicals, L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007).
A party complaining of an incomplete or unresponsive verdict, or conflicting jury findings must object before the jury is discharged. See Fleet v. Fleet, 711 S.W.2d 1, 3 (Tex. 1986); Dick's Last Resort of the West End, Inc. v Market/Ross, Ltd., 273 S.W3d 905, 918 (Tex. App.—Dallas 2008, pet. denied); TEX. R. APP. P. 33.1(a). The party must raise an objection before the verdict is received so the trial court can "provide the jury such additional instructions as may be proper, and retire the jury for further deliberations." TEX. R. CIV. P. 295; Beltran v. Brookshire Grocery Co., 358 S.W.3d 263, 268 (Tex. App.—Dallas 2011, pet. denied).
ANALYSIS
In its first issue, CES complains of the trial court's failure to submit a jury question on the formation of a contract between CES and DeLeon. Specifically, CES argues the trial court should have submitted a question to the jury asking whether CES entered into an agreement with DeLeon to design the foundation of DeLeon's building.
CES's proposed jury charge was not included in the pretrial report it e-filed in the trial court. DeLeon asserts CES's failure to timely submit its proposed question in writing results in a waiver of its complaint on appeal. "Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the question is one relied upon by the opposing party." TEX. R. CIV. P. 278. DeLeon, as plaintiff, had the burden of proving breach of a contract between the parties. See Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Thus, CES's objection to the omission during the charge conference was sufficient to preserve error under Rule 278. See Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005, pet. denied) (recognizing Rule 278's limited exception to requirement for tender of a requested question).
As evidence to dispute a binding agreement between CES and DeLeon, CES cites Childress's testimony that he was not aware of Wasser's agency on behalf of DeLeon. Specifically, Childress testified that he thought Wasser was his client until the lawsuit "came up," all the documents were in "Wasser's name" and, during the course of the project, Childress corresponded with Wasser. Childress met and corresponded with DeLeon when the parties discussed remediation, but, according to Childress, he understood DeLeon to be the owner, not the client.
Childress's self-serving testimony was simply surmise and insufficient evidence to support a jury question on whether CES and DeLeon had a binding contract. See Pitts & Collard, L.L.P., 369 S.W.3d at 319-20 (witness's parol evidence of his interpretation of unambiguous letter agreement was not some evidence of parties' agreement to share losses sufficient to support jury question on existence of joint venture). Childress neither negotiated nor executed the agreement on behalf of CES. Instead, Wasser and Lenckus, who Childress acknowledged was the CES employee charged with "[taking] in information," negotiated the foundation design agreement.
CES also claims the payment for CES's services was some evidence that there was no agreement between CES and DeLeon because the check was issued by "De Leon Masonry, Inc." and not DeLeon personally. To the contrary, this evidence of payment by an entity containing DeLeon's name more likely indicates an agreement with DeLeon than Wasser as Childress assumed.
Finally, CES points to Work for Hire Agreements that DeLeon entered into with other contractors. According to CES, these agreements more clearly delineated Wasser's representation of DeLeon because they recited "JUAN DELEON as represented by RWW CONSTRUCTION MANAGEMENT" at the top of the agreement and defined DeLeon as "The Client." CES, however, fails to explain how these agreements make its own agreement with DeLeon less viable. CES - not DeLeon - prepared the agreement. The fact that DeLeon may have entered into more specific agreements with other contractors on the project does not amount to some evidence that DeLeon and CES do not have a binding agreement.
Having examined the record for evidence supporting submission of a contract formation question, we conclude there is no evidence to support a question on whether CES and DeLeon had a binding agreement for the foundation design. Instead, the evidence shows that Wasser took the actions required to establish his agency for DeLeon with respect to the CES agreement. See, e.g., Anderson v. Smith, 398 S.W.2d 635, 637 (Tex. Civ. App.—Dallas 1965, no writ) (agency relationship must be disclosed at the time parties enter into a contract). Therefore, the trial court did not abuse its discretion in omitting CES's proposed jury question on contract formation in the charge.
Under its first point of error, CES also argues that, without its proposed formation question, the form of the charge precludes the jury from finding that CES breached a contract with DeLeon. CES complains that the breach of contract question did not specify an agreement with DeLeon and the charge's definition of DeLeon did not reference either Wasser or RWW Construction Services. Although CES objected to the trial court's omission of a contract formation question, it did not object to either the breach of contract question or the DeLeon definition during the charge conference. Thus, to the extent CES's first point of error complains of the form of the breach of contract question or definition of DeLeon, that complaint is not preserved for appeal. See TEX. RS. CIV. P. 272, 274 ("A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections."); TEX. R. APP. P. 33.1(a). Accordingly, we overrule CES's first issue.
In its second issue, CES argues that the jury charge cannot support the trial court's final judgment because the breach of contract question fatally conflicts with the jury's answer to the negligence question. After the jury returned its verdict, the trial court specifically asked counsel for CES if it had any objection to the form of the jury's verdict, and counsel responded, "No, your Honor." The court then accepted the verdict and discharged the jury. CES failed to preserve its second point of error for appeal by not objecting to the alleged conflict in the charge prior to the jury's discharge. See TEX. R. APP. P. 33.1(a); e.g., Dick's Last Resort, 73 S.W.3d at 918. Accordingly, CES failed to preserve any error on its second issue.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE 160429F.P05
JUDGMENT
On Appeal from the 134th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-12-07710.
Opinion delivered by Justice Brown; Justices Lang and Whitehill participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee JUAN A. DELEON recover his costs of this appeal from appellant CHILDRESS ENGINEERING SERVICES, INC. Judgment entered this 29th day of November, 2017.