Court of Appeals of Texas, Fourth District, San Antonio
MEDICAL IMAGING SOLUTIONS GROUP, INC. OF TEXAS, Appellant
WESTLAKE SURGICAL, LP D/B/A/ THE HOSPITAL AT WESTLAKE and WS GP, LLC, Appellees
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2014CI06112 Honorable Cathleen M. Stryker, Judge
Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice.
Imaging Solutions Group, Inc. of Texas ("MIS") sued
Westlake Surgical, LP d/b/a The Hospital at Westlake Medical
Center and WS GP, LLC (collectively, "Westlake")
for breach of contract. A jury answered Question 3 of the
jury charge affirmatively, finding that Westlake was excused
from performance under the contract. The trial court then
rendered a take-nothing judgment on MIS's claims. On
appeal, MIS argues the trial court erred in submitting
Question 3, which combined multiple affirmative defenses in a
broad-form question. We conclude the trial court did not err
in submitting Question 3 to the jury. We, therefore, affirm
the trial court's judgment.
engaged in the business of selling, leasing, and servicing
medical imaging equipment such as MRIs, CT scanners, and
X-ray machines. Westlake operates a hospital and owns medical
imaging equipment, including a CT scanner. In March 2011, MIS
and Westlake entered into a service agreement under which MIS
would provide maintenance on Westlake's medical imaging
equipment over the next five years. The service agreement
provided that Westlake would pay MIS monthly fees in exchange
for its maintenance services.
2014, MIS sued Westlake, claiming that it had breached the
service agreement by failing to pay the monthly service fees,
by improperly contacting MIS's subcontractors, and by
allowing third parties to work on the equipment. Westlake
filed an answer to the suit, which included a general denial,
multiple affirmative defenses, and various counterclaims. The
case eventually went to trial before a jury.
trial, MIS asserted Westlake breached the parties'
contract under multiple theories. Under one theory, MIS
argued that Westlake breached the contract by failing to pay
the monthly service fee by the first of each month as
required. MIS further argued that Westlake had never intended
to timely pay or even to pay within a thirty, sixty, or
ninety-day window. MIS claimed that, on average, MIS was over
one hundred days in arrearages on its payments under the
contract. Under another theory, MIS argued that Westlake
breached the contract by allowing other service providers to
work on the covered equipment without informing MIS.
countered that it did not breach the contract by failing to
pay the monthly service fee by the first of each month
because the parties had modified the terms of the original
contract to allow Westlake to pay within a sixty-day window.
Westlake also argued that it did not breach the contract
because MIS had waived its right to insist upon payments by
the first of each month. Additionally, Westlake argued that
MIS was the party that had breached the contract by not
providing trained technicians who could maintain the
equipment up to manufacturer specifications and by refusing
to replace a covered part.
3 of the proposed jury charge asked if Westlake's failure
to comply with the contract was excused by repudiation,
waiver, modification, or fraud. At the charge conference, MIS
objected to Question 3 on the basis that "[t]here is no
pleading to support prior repudiation, " "there is
no evidence of waiver, " and "there is no evidence
to support excuse." The trial court overruled MIS's
objections and submitted Question 3 to the jury as stated in
the proposed charge.
1 of the jury charge asked, "Did Westlake fail to comply
with the [parties' contract]?" The jury answered
"Yes" to this question. Question 2 of the jury
charge asked, "Did [MIS] fail to comply with the
[parties' contract]?" The jury also answered
"Yes" to this question. Question 3 of the jury
charge asked if Westlake's failure to comply with the
contract was excused. Question 3 instructed the jury that
Westlake's failure to comply was excused (1) if MIS
agreed that a new term would take its place, (2) by MIS's
prior repudiation of the service agreement, or (3) if
compliance was waived by MIS. The jury answered
"Yes" to Question 3.
filed a motion to disregard the jury's answer to Question
3. In the motion to disregard, MIS argued, among other
things, that the jury's finding of repudiation,
modification, and waiver was not supported by the evidence.
Westlake filed a response to the motion to disregard, arguing
that its affirmative defenses of repudiation, modification,
and waiver were all supported by some evidence. After a
hearing, the trial court denied the motion to disregard and
rendered judgment that MIS take nothing on its breach of
also filed a motion for new trial, which reiterated some of
the arguments made in its motion to disregard. The trial
court denied the motion for new trial. MIS appealed.
appeal, MIS's overarching complaint is that Question 3
was defective because it improperly combined four separate
affirmative defenses, three of which were defective. MIS
further complains that Westlake's affirmative defense of
repudiation was improperly included in Question 3 because
Westlake never pled repudiation and it was not tried by
consent. Additionally, MIS complains that Westlake's
affirmative defenses of repudiation, modification, and waiver
were improperly included in Question 3 because they were not
supported by any evidence.
of Review and Applicable Law
review the trial court's decision to submit or refuse a
particular jury instruction for an abuse of discretion.
Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012). A
trial court has broad discretion to determine proper jury
instructions. Thota, 366 S.W.3d at 687; Bexar
Cnty. Appraisal Dist. v. Abdo, 399 S.W.3d 248, 258 (Tex.
App.-San Antonio 2012, no pet.). A jury instruction is proper
if it (1) assists the jury; (2) accurately states the law;
and (3) finds support in the pleadings and the evidence.
Thota, 366 S.W.3d at 687. All issues in the jury
charge must be supported by written pleadings and evidence.
Tex.R.Civ.P. 278; Hyundai Motor Co. v. Rodriguez,
995 S.W.2d 661, 663 (Tex. 1999) ("A trial court must
submit in its charge to the jury all questions, instructions,
and definitions raised by the pleadings and evidence.").
court may not refuse to submit an issue merely because the
evidence is insufficient to support a judgment. Brown v.
Goldstein, 685 S.W.2d 640, 641 (Tex. 1985). A trial
court may only refuse to submit an issue if there is no
evidence to warrant its submission. Id. To determine
whether legally sufficient evidence supported the submission
of a defense, we examine the record for evidence supporting
the theory and ignore all evidence to the contrary. See
Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992).
third issue, MIS argues the trial court erred in submitting
Question No. 3 to the jury because there was no evidence to
support the repudiation instruction. In its second issue, MIS
argues the trial court erred in submitting Question No. 3 to
the jury because repudiation was neither pled nor tried by
The jury was instructed:
Failure to comply by Westlake is also excused by MIS
TEXAS' prior repudiation of the same agreement. A party
repudiates an agreement when it indicates, by its words or
actions, that it is not going to perform its obligations
under the agreement in the future, showing a fixed ...