Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 134th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-12-07710
Justices Lang, Brown, and Whitehill.
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.
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.
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
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.
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
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.
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
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