The court of appeals held that there were no forfeiture factors submitted to the jury. It would seem that this case should fall under Texas Rule of Civil Procedure 279. “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.” Tex. R. Civ. P. 279; Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d 256, 281 (Tex. App.—Houston [1st Dist.] 2018, pet. dism’d).

Moreover, in the context of a jury trial, there can be omitted elements of a claim. Texas Rule of Civil Procedure 279 provides that where some elements of claim or defense are submitted to the jury, but others are not, the omitted elements are presumed in favor of the trial court’s judgment. Tex. R. Civ. P. 279.

The court further stated:An agreement not to be partners unless certain conditions are met will ordinarily be conclusive on the issue of partnership formation as between the parties. Performance of a condition precedent, however, can be waived or modified by the party to whom the obligation was due by word or deed. We agree with the court of appeals that under Texas Rule of Civil Procedure 279, ETP was required either to obtain a jury finding on waiver or to prove it conclusively. It has done neither.

Otherwise, after trial, a court may determine that a party waived the right to a jury on a fact issue, and either refuse to award the remedy or grant the remedy and supporting findings may be found in support of a trial court’s judgment. Tex. R. Civ. P. 279; Bostow v. Bank of Am., No. 14-04-00256-CV, 2006 Tex. App. LEXIS 377 (Tex. App.—Houston [14th Dist.] Jan. 17, 2006, no pet.) (“[T]he jury’s finding as to Bostow’s harassing conduct is a sufficient finding on the ultimate issues of fact to support the trial court’s exercise of discretion in granting a permanent injunction.

The court then analyzed whether the Enterprise waived the conditions precedent. ETP did not submit a jury question on waiver, and so under Texas Rule of Civil Procedure 279, such a claim was waived unless it was proved as a matter of law. The court reviewed the evidence and held that there was at least a fact question on waiver.

ETP did not deny that the conditions were not met. Thus, the Courtheld that ETP was obligated to request a jury finding that it established waiver or excuse of those conditions, but failed to do so as required by Texas Rule of Civil Procedure 279 and applicable law. ETP’s final avenue to keep its judgment wasto provethat Enterprise waived the conditions precedent as a matter of law.

Because the court did not award attorney’s fees, there is an implied finding that the trial court found against the contestant on the issue of the amount of fees. Texas Rule of Civil Procedure 279. The court explained that there was no evidence of the contestant’s employment arrangement with her attorneys. For example, the parties may have agreed to a contingency fee and hence no fees would be owed because the contest action failed.