Mitchell Carter v. T. Gerald Treece, in His Capacity as Independent of the Estate of John O'Quinn ( 2013 )

Opinion issued July 9, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-01003-CV
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MITCHELL CARTER, Appellant
V.
T. GERALD TREECE, IN HIS CAPACITY AS INDEPENDENT
EXECUTOR OF THE ESTATE OF JOHN O’QUINN, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2009-50892
MEMORANDUM OPINION
Appellant, Mitchell Carter, challenges the trial court’s take-nothing
judgment entered, after a jury trial, in favor of appellee, T. Gerald Treece, in his
capacity as the Independent Executor of the Estate of John M. O’Quinn, in Carter’s
suit against O’Quinn for breach of contract. In one issue, Carter contends that the
trial court erred in submitting a jury charge that did not include instructions on
what constitutes a contractual agreement. We affirm.
Background
Carter sued O’Quinn, alleging breach of an August 12, 2005 contract for
Carter to perform work on a concrete floor in a warehouse owned by JMO
Warehouse, Limited. Carter did not serve O’Quinn with citation before O’Quinn’s
death in November 2009. However, Carter did file a claim in the probate court
against the O’Quinn Estate, and Treece, acting as independent executor of the
Estate, denied Carter’s claim. Carter then amended his petition to name Treece as
a defendant. In his answer, Treece disputed that a contract had been entered into.
Treece asserted that if a contract existed, Carter had sued the wrong party as it was
a limited partnership that owned the warehouse that had retained Carter to paint the
concrete floor; Carter had been paid in full for the work performed; and Carter
breached the contract, excusing the limited partnership from allowing Carter to
perform on the remainder of the contract.
The trial court asked the jury to determine whether O’Quinn had entered into
a contractual agreement which was identified as “Plaintiff’s Exhibit 1,” the
“Contract Agreement.” The jury answered “no,” and the trial court entered a take-
nothing judgment in favor of Treece.
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Jury Charge
In his sole issue, Carter argues that the trial court erred in “failing to include
instructions [to the jury] about what constitutes a contractual agreement” because,
in not including an instruction on the elements of a contract, the trial court allowed
the jury “to determine whether the agreement in question met all the elements of a
Texas contract,” which is a question of law, not a fact issue.
To preserve a complaint premised on a defective jury charge for appellate
review, a party must “point out distinctly the objectionable matter and the grounds
of the objection.” TEX. R. CIV. P. 274. “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.” Id. An objection to the
jury charge does not satisfy rule 274 unless “the defect relied upon by the objecting
party and the grounds of the objection are stated specifically enough to support the
conclusion that [the] trial court was fully cognizant of the ground of complaint and
deliberately chose to overrule it.” Carousel’s Creamery, L.L.C. v. Marble Slab
Creamery, Inc., 134 S.W.3d 385, 404 (Tex. App.—Houston [1st Dist.] 2004, pet.
dism’d). If a party fails to lodge an objection to the jury charge that timely and
plainly makes the trial court aware of the complaint, error is not preserved and the
complaint is waived on appeal. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43
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(Tex. 2007); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235,
241 (Tex. 1992) (op. on reh’g).
However, where a party contends that a trial court improperly omitted an
instruction on an issue in the court’s charge, the party must do more than object to
preserve the issue for appeal, the party must request and tender to the trial court a
substantially correct instruction in writing. TEX. R. CIV. P. 278; Yellow Cab and
Baggage Co. v. Green, 154 Tex. 330, 333, 277 S.W.2d 92, 93 (Tex. 1955). Any
error by the trial court in not submitting the instruction to the jury is waived if the
party fails to do so. Mason v. S. Pac. Transp. Co., 892 S.W.2d 115, 117 (Tex.
App.—Houston [1st Dist.] 1994, writ denied). “Failure to submit a definition or
instruction shall not be deemed a ground for reversal of the judgment unless a
substantially correct definition or instruction has been requested in writing and
tendered by the party complaining of the judgment.” TEX. R. CIV. P. 278.
In all jury trials, a trial court must submit instructions and definitions to
properly enable the jury to render a verdict. TEX. R. CIV. P. 277. A valid
instruction must: (1) assist the jury, (2) accurately state the law, and (3) find
support in the pleadings and evidence. Union Pac. R.R. Co. v. Williams, 85
S.W.3d 162, 166 (Tex. 2002). “When a trial court refuses to submit a requested
instruction on an issue raised by the pleadings and evidence, the question on appeal
is whether the request was reasonably necessary to enable the jury to render a
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proper verdict.” Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). The
omission of an instruction constitutes reversible error only if the omission probably
caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a). Trial
courts have considerable discretion in deciding what instructions are necessary and
proper in submitting issues to juries; thus, we review such decisions for an abuse of
discretion. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451–52 (Tex. 1997).
Here, the record does not reflect that Carter requested or tendered a
substantially correct instruction that he now argues should have been given to the
jury. And Carter did not object to the trial court’s question to the jury as to
whether O’Quinn had entered into the contract. Even if Carter had preserved the
issue for our review, he has not attempted to demonstrate that the omission of such
an instruction caused the jury to reach an improper verdict. Accordingly, we
conclude that Carter has waived any error on this issue.
We overrule Carter’s sole issue.
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Conclusion
We affirm the judgment of the trial court.1
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
1
Having overruled Carter’s sole issue, we need not address Treece’s alternative
arguments for affirmance.
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