court’s charge-- minefield approachnina cortell heather bailey m. scott carol haynes and boone,...

Court’s Charge--Minefield Approach

Karen S. PrecellaHAYNES AND BOONE, L.L.P.201 Main StreetSuite 2200Fort Worth, Texas 76102

Nina CortellHeather BaileyM. Scott CarolHAYNES AND BOONE, LLP

901 Main StreetSuite 3100Dallas, Texas 75202Telephone: (214) 651-5000Telecopy: (214) 200-0411E-mail:[email protected]

Patrice PujolMercy LoweHAYNES AND BOONE, L.L.P.1000 Louisiana StreetSuite 4300Houston, Texas 77002

Litigation Update Institute 2002January 11-12, 2002San Antonio, Texas

Chapter 16

NINA CORTELL

Education:University of Texas School of Law, 1976

Graduated with Honors; Associate Editor, Texas Law Review; Teaching QuizmasterUniversity of Texas at Austin, 1973

Plan II, high honors; Phi Beta Kappa

Professional Activities:Current:Haynes and Boone, LLP, Partner and member of the Executive CommitteeMember, Texas Supreme Court Advisory CommitteeMember, American Law InstituteDirector, Business Litigation Section of the Dallas Bar AssociationChair, Appellate Section of the Dallas Bar AssociationMaster, Patrick E. Higginbotham American Inn of CourtMember, Board of Directors, Committee for a Qualified JudiciaryLife Fellow, Texas Bar FoundationFellow, American Bar FoundationMember, American Bar Association, State Bar of Texas and Dallas Bar Association

(and their respective litigation and appellate sections)Member, Board of Directors, Committee for a Qualified JudiciaryPast:Chair, Dallas Bar Foundation FellowsChair, Civil Justice Reform Act Advisory Committee for the United States District Courts

for the Northern District of TexasChair and Vice-Chair, Judiciary Committee, Dallas Bar AssociationChair, Court Facilities Department, Dallas Bar AssociationGroup Leader, 1991 Conference on Goals for Professionalism, sponsored by the Dallas Bar Foundation, Texas Bar Foundation and Communities Foundation of TexasDirector, University of Texas Law School Alumni AssociationMember, Task Force established by Dallas City Council to study the Municipal CourtsMember, Grievance Committee 6th District of the State Bar of Texas

Recent Law Related Presentations (Speaker and Author):“Court’s Charge – Minefield Approach,” Litigation Update Institute 2002, State Bar of Texas,

January 2002“Formation of the Judgment and Calculation of Interest, Made Interesting,” Presentation to

the Appellate Section of the Dallas Bar Association, October 18, 2001“Mandamus Update,” 10th Annual Conference on State and Federal Appeals, University of

TexasSchool of Law, June 7-9, 2000

“Disqualifications and Other Ethical Issues,” 22nd Annual Advanced Civil Trial Law Course, State Bar of Texas, September 1-3, 1999

“Post Verdict Strategies,” Litigation and Trial Tactics Seminar sponsored by University of Houston Law Center, December 4 and 11, 1998

“Formation and Calculation of the Judgment,” 21st Annual Advanced Civil Trial Course, StateBar of Texas, September 2-4, 1998, October 7-9, 1998 and November 4-6, 1998

Director, State Bar Institute on New Appellate Rules, July 1997

COURT’S CHARGE – MINEFIELD APPROACH CHAPTER 16

TABLE OF CONTENTSPage

I. DRAFTING THE CHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. The Basics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. When Do You Draft? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. How Do You Begin the Process? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

a. Sources for Jury Charge Submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1b. Should You Draft Their Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3. When Do You File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24. What Do You File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Deciding What Questions, Definitions, and Instructions to Submit under Broad-form . . . . . . . . 21. What Is the Difference Between a Question, a Definition, and an Instruction? . . . . . . . . 2

a. Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2b. Instructions and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. How Broad Is Broad-form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43. Examples of Broad Form Submissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

a. Contract and Commercial Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Breach of Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Contractual Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Develop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

b. Statutory Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Deceptive Trade Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

c. Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Negligence - Lemos Overrules Muckleroy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Tortious Interference With Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Tortious Interference With Prospective Business Relations . . . . . . . . . . . . . . . . . . . . . . 13Medical Malpractice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Civil Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15False Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Premises Liability - Invitee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Premises Liability - Licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Gross Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

4. Submitting Actual Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19a. Does Casteel Apply to Erroneously Submitted Elements of Damages? . . . . . . . . . . . . . 20b. Damage Questions Must Relate to Cause of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20c. Is it Necessary to Submit Separate Questions on Special Damages? . . . . . . . . . . . . . . . . 21d. Is it Necessary to Separate Past and Future Losses? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

5. Exemplary Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22a. The Exemplary Damages Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22b. Inclusion of the Kraus Factors (and Others) in Jury Instructions Accompanying Questions

on Exemplary Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23c. BMW v. Gore Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

d. Corporate Liability for Exemplary Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246. Broad Submissions: Do They Submit Questions of Law? . . . . . . . . . . . . . . . . . . . . . . . 257. Multi-theory Submissions After Casteel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

a. The Limits of Casteel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26b. Practical Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28


II. HANDLING THE INFORMAL CHARGE CONFERENCE. . . . . . . . . . . . . . . . . . . . . . . . 29A. On the Record or Off? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29B. Are You Preserving Error? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

III. Preserving Error at the Formal Charge Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29A. Rules About Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

1. Make Requests Separate from Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302. Tendered to the Court in Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313. Substantially Correct Wording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314. Not Obscured or Concealed with Minute Differentiations and Numerous Unnecessary

Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325. Signed as Refused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

B. Rules about Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331. Object in Writing or on the Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332. Distinctly Point out the Ground(s) of Your Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . 343. No Adoption of Objections by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354. Objection after Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355. Not Obscured or Concealed with Voluminous or Unfounded Objections . . . . . . . . . . . . 356. Ruled upon by the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357. Simplifying the Charge Objection: The Payne Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36


1

I. DRAFTING THE CHARGE

A. The Basics.

1. When Do You Draft?

It is never too early to start drafting yourcharge. Knowledge of how your charge will lookwill assist with the pleading, discovery, and proofaspects of your case. Indeed, advance knowledgeof your charge will ensure that you not prove upthe wrong case! The first big bad mistake ofcharge practice is waiting too long to draft thecharge. A draft should be prepared at the outset ofthe case and updated throughout the pretrialprocess. You should avoid the temptation ofwaiting until the eve before charge conference! By that point, it may well be too late.

2. How Do You Begin the Process?

a. Sources for Jury ChargeSubmissions.

The best source for approved chargesubmissions is a Texas Supreme Court opinionapproving the submission. In the absence of acase on point, lawyers often use the proposed submissions contained in the State Bar’s PatternJury Charges. These Pattern Jury Charges arewell-established and are more likely to have beenapproved by the courts or even derived from aSupreme Court opinion. See Placencio v. AlliedIndus. Int’l, Inc., 724 S.W.2d 20, 22 (Tex. 1987)(approving Texas Pattern Jury Charge form of“misuse” applicable to products cases); Wilson v.Kaufman & Broad Home Sys., 728 S.W.2d 874,875 (Tex. App.–Beaumont 1987, writ ref’d n.r.e.)(approving Texas Pattern Jury Charge form ofquestions and instructions related to productliability suits involving design defects).

Nevertheless, using the Texas Pattern JuryCharges is not without risk. For example, theSupreme Court case of Plas-Tex, Inc. v. U.S. SteelCorp., 772 S.W.2d 442 (Tex. 1989), establishedthat proof of a defect is required in an action forbreach of implied warranty of merchantabilityunder TEX. BUS. & COM. CODE ANN. §2.314(b)(3). The plaintiff in Plas-Tex used theTexas Pattern Jury Charge for his proposed

submission on the implied warranty ofmerchantability claim. See 3 COMM. ON PATTERN

JURY CHARGES, STATE BAR OF TEX., TEXAS

PATTERN JURY CHARGES PJC 71.07 (1982) (nowPJC 71.7 (1998)). As a result of the holding inPlas-Tex, PJC 71.7 now reads as follows:

QUESTION 1: Was the [product]supplied by the [ABC Company] unfitfor the ordinary purpose for which such[product] is used because of a defect?

“Defect means a condition of the goodsthat renders them unfit for the ordinarypurposes for which they are usedbecause of a lack of somethingnecessary for adequacy.”

3 COMM. ON PATTERN JURY CHARGES, STATE BAR

OF TEX., TEXAS PATTERN JURY CHARGES PJC71.7 (1998).

On the other hand, at least two courts haveaffirmed a submission derived from the TexasPattern Jury Charges, though the courtacknowledged that the PJC incorrectly stated thelaw. See, e.g., State v. Williams, 940 S.W.2d 583,585 (Tex. 1996) (although the jury instructionincorrectly stated the law, the error was harmless);City of San Antonio v. Rodriguez, 931 S.W.2d535, 536 (Tex. 1996) (instead of rendering ajudgment, the court remanded the case for a newtrial based on a jury instruction that incorrectlystated the law).

b. Should You Draft Their Issues?

It is advisable to draft an entire charge,including your questions as well as youropponent’s. You want to have an idea of how theentire charge should look, irrespective of whetheryour client has the burden of proof. Armed with adraft of all questions, instructions, and definitions,you will be better prepared to make the requiredobjections and tenders at the charge conference. However, as discussed below, you may decide notto include your opponent’s questions in the chargethat you initially file with the court.

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=724&edition=S.W.2d&page=20&id=24707_01







2

3. When Do You File?

Typically, pretrial orders and/or local ruleswill dictate the filing date of the charge you haveprepared. In some instances, local practice maydiffer from the timing provided by the local rules. It is therefore wise to determine what the localpractice is in the venue in which your areappearing. In the event that the court does notrequire an earlier filing date, then chargesubmissions should be filed and provided to thecourt during the informal and formal chargeconferences.

4. What Do You File?

Assuming that you are filing a charge inadvance of the charge conference, the decision ofwhat to file is often guided by tactical (as opposedto preservation) concerns. You may not want toeducate the other side as to how you think theirclaims and/or defenses should be submitted. Accordingly, you may decide to only submit thosequestions upon which you have the burden ofproof. Conversely, if you think the court isactively putting the charge together at an earlystage, then it might behoove you to file a draft thatincludes all claims and defenses without regard towho has the burden.

B. Deciding What Questions, Definitions,and Instructions to Submit underBroad-form.

1. What Is the Difference Between aQuestion, a Definition, and anInstruction?

Deciding whether to submit an issue as aquestion, definition or instruction is important notonly for tactical reasons but also for properpreservation of error. Before addressing thedifferences between the three ways of submittingan issue, it is important to note that every issue,regardless of the manner of submission, must beraised by the written pleadings and evidence. TEX. R. CIV. P. 278.

a. Questions

Regarding questions, Rule 277 states the

court shall, whenever feasible, submit the causeupon broad-form questions. TEX. R. CIV. P. 277. A correct jury question properly submits thedisputed issue for the jury’s determination. Toennies v. Quantum Chemical Corp., 998S.W.2d 374, 377 (Tex. App.—Houston [1st Dist.]1999), aff’d, 47 S.W.3d 473 (Tex. 2001). Thetrial court is required to submit only ultimate orcontrolling factual issues that are essential to aright of action. If a matter has been established asa matter of law, it is improper to submit a questionon that matter. See Musser v. Smith ProtectiveServices, Inc., 723 S.W.2d 653, 655 (Tex. 1987). Moreover, if a trial court’s charge fairly and fullypresents all controlling questions to the jury, it isnot error to refuse to submit additional issues orinstructions which are mere shades or variationsof the questions already submitted. Carr v. Weiss,984 S.W.2d 753, 766 (Tex. App.—Amarillo 1999,pet. denied); see also Williams v. Vought, 2001WL 767561 *9 (Tex. App.—Dallas 2001, no pet.h.)(not yet published).

Elements of recovery or a defense may besubmitted in the form of a combined question orby way of an instruction. Affirmative defensesmay also be submitted as an instruction rather thana question.

Rule 277 provides further guidance. First, Rule 277 prohibits the submission of inferentialrebuttal questions. (Examples of inferentialrebuttals are unavoidable accident, act of God,sole proximate cause, and new and independentcause.) Instead, they must be submitted asinstructions. TEX. R. CIV. P. 277. Moreover, theplacing of the burden of proof may beaccomplished by instructions rather than byinclusion in the question. TEX. R. CIV. P. 277.

Next, Rule 277 states that in any cause inwhich the jury is required to apportion the lossamong the parties, the rule requires the court tosubmit a question or questions inquiring whatpercentage, if any, of the negligence or causation,as the case may be, that caused the occurrence orinjury in question is attributable to each of thepersons found to have been culpable. Moreover,the court shall instruct the jury to answer thedamage question or questions without anyreduction because of the percentage of negligence







3

or causation, if any, of the person injured.

The court may submit a questiondisjunctively when it is apparent from theevidence that one or the other of the conditions orfacts inquired about necessarily exists. TEX. R.CIV. P. 277.

Once it is understood that the question needsto submit the ultimate fact issue to jury and it isdetermined that the question is allowable, then theinquiry turns to the proper form the questionshould take. The following sections of this paperanalyze the propriety of submitting a question inbroad-form, examples of proper broad-formquestions, and considerations that will assist indrafting proper questions.

b. Instructions and Definitions

Trial courts possess considerably morediscretion in submitting instructions anddefinitions than they have in submitting questions. Allen v. Allen, 966 S.W.2d 658, 659 (Tex.App.—San Antonio 1998, pet. denied); Wal-MartStores v. Middleton, 982 S.W.2d 468, 470 (Tex.App.—San Antonio 1998, pet. denied); see alsoH.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22,23 (Tex. 1998) citing Mobil Chem. Co. v. Bell,517 S.W.2d 245, 256 (Tex. 1974) (trial court isgiven wide latitude to determine the propriety ofexplanatory instructions and definitions).

Although the court has a lot of discretion, itmust submit explanatory instructions anddefinitions that will assist the jury in rendering averdict. TEX. R. CIV. P. 277; see also ExxonPipeline Co. v. Zwahr, 35 S.W.3d 705, 714 (Tex.App.—Houston [1st Dist.] 2000, no pet.) citingWichita County, Texas v. Hart, 917 S.W.2d 779,783-84 (Tex. 1996). Therefore, instructions anddefinitions should be submitted only if they are ofsome aid or assistance to the jury in answering thesubmitted issues. Raiford v. May Dept. StoresCo., 2 S.W.3d 527, 533 (Tex. App.—Houston[14th Dist.] 1999, no pet.) citing Sappington v.Younger Transp., Inc., 758 S.W.2d 866, 867-868(Tex. App.—Corpus Christi 1988, writ denied);Bean v. Baxter Healthcare Corp., 965 S.W.2d656, 663 (Tex. App.—Houston [14th Dist.] 1998,no pet.).

A proper jury instruction assists the jury,accurately states the law, and finds support in thepleadings and evidence. Whiteside v. Watson, 12S.W.3d 614, 621-23 (Tex. App.—Eastland 2000,pet. denied, order withdrawn, dismissed by agmt.); Middleton, 982 S.W.2d at 470. All threerequirements must be satisfied. Id. citing Riggs v.Sentry Ins., 821 S.W.2d 701, 704-05 (Tex.App.—Houston [14th Dist. ] 1991, writ denied).

Moreover, the trial court’s charge need not,and should not, burden the jury with surplusinstructions. Zwahr, 35 S.W.3d at 715 citingAcord v. General Motors, Corp., 669 S.W.2d 111,116 (Tex. 1984); Brookshire Bros., Inc. v. Lewis,997 S.W.2d 908, 921 (Tex. App.—Beaumont1999, pet. denied) citing Acord, 669 S.W.2d at116. This means that every correct statement ofthe law does not belong in the jury charge. Zwahr, 35 S.W.3d at 715 citing Maddox v. DenkaChemical Corp., 930 S.W.2d 668, 671 (Tex.App.—Houston [1st Dist.] 1996, no writ); KansasCity Southern Ry. Co. v. Stokes, 20 S.W.3d 45, 49(Tex. App.—Texarkana 2000, no pet.).

An instruction, while a correct statement ofthe law, may still be error if it is a comment on theweight of the evidence, but it is not error if it onlyincidentally constitutes a comment of the weightof the evidence and is otherwise a properinstruction. See TEX. R. CIV. P. 277; In theinterest of V.L.K., 24 S.W.3d 338, 343 (Tex. 2000)citing Acord, 669 S.W.2d at 116.

Knowing when to submit a definition isusually a bit easier than an instruction or aquestion because the law is more clear. The trialcourt is required to give definitions of legal andtechnical terms. Brookshire Bros., 997 S.W.2d at921 citing Union Oil Co. of Cal. v. Richard, 536S.W.2d 955, 957 (Tex. Civ. App.—Beaumont1975, writ ref’d n.r.e.). The definitions mustassist the jurors in answering questions andrendering a verdict. Allen, 966 S.W.2d at 660citing Harris v. Harris, 765 S.W.2d 798, 801(Tex. App.—Houston [14th Dist.] 1989, writdenied). Ordinarily, the trial court is required todefine or explain only those words or phrasesgiven a distinctive meaning by law. Allen, 966S.W.2d at 660. Words having no special legal ortechnical meaning apart from their ordinary usage






























4

need not be defined. Id. The test of propriety of adefinition is “the reasonable clearness of thedefinition to enable jurors to understand theword.” Id. Anything else, however interesting orrelevant to the case in general, that does not aidthe jury in answering the issues, must be excluded. Brookshire Bros., 997 S.W.2d at 921 citing UnionOil Co. of Cal. v. Richard, 536 S.W.2d 955, 957(Tex. Civ. App.—Beaumont 1975, writ ref’dn.r.e.); Depriter v. Tom Thumb Stores, Inc., 931S.W.2d 627, 629-30 (Tex. App.—Dallas 1996,writ denied).

2. How Broad Is Broad-form?

Whenever feasible, the trial court mustsubmit the case to the jury by broad-formquestions, rather than by separate, granulatedquestions for each element of a cause of action. TEX. R. CIV. P. 277; see also Wal-Mart Stores,Inc. v. Redding, 2001 WL 726435 *5 (Tex.App.—Houston [14th Dist.] 2001) (rule 53.7(f)motion filed) (not yet published).

Rule 278 of the Texas Rules of CivilProcedure mandates that a party is entitled to ajury question if the issue is raised by the pleadingsand evidence. TEX. R. CIV. P. 278. A questionthat omits conduct that supports a valid theory ofliability pleaded by the plaintiff is harmful. SeeKajima Int’l., Inc. v. Formosa Plastics Corp., 15S.W.3d 289, 294 (Tex. App.—Corpus Christi2000 pet. filed). Thus, a broad form submissionmust, at a minimum, include all valid theories ofliability supported by the pleadings and theevidence. See Plainsman, 898 S.W.2d at 790(single question submitting “controlling issues”upheld).

Rule 277 requires the court to submit thecause upon broad-form questions “wheneverfeasible.” TEX. R. CIV. P. 277. “Wheneverfeasible” means in any or every instance in whichit is capable of being accomplished. Tex. Dept. ofHuman Res. v. E.B., 802 S.W.2d 647 (Tex. 1990). Whether broad-form can be accomplished isparticularly tricky when a case involves multiple

issues or causes of action.1 In Hyundai Motor Co.v. Rodriquez, 995 S.W.2d 661 (Tex. 1999), theTexas Supreme Court approved the submission of multiple causes of action in a single broad-formquestion where the controlling questions wereidentical. In Hyundai, the plaintiff asserted claimsfor both strict liability and breach of warranty. The court concluded that a single question onliability was appropriate because “the controllingissues regarding the existence of a defect for strictliability and breach of implied warranty werefunctionally identical in this case.” Id.; accordRiddick v. Quail Harbor Condo. Ass’n., Inc., 7S.W.3d 663, 673-74 (Tex. App.–Houston [14thDist.] 1999, no pet.) (approving submission ofsingle broad-form question for breach of contractand breach of fiduciary duty claims). But see Inre: C.H., 25 S.W.3d 38 (Tex. App.–El Paso April20, 2000, pet. filed) (“Because multiple groundsfor termination [for parental rights] were alleged .. . and the trial court submitted the issue using abroad form question, the jury’s findings should beupheld if any of the grounds for terminationpleaded . . . support the jury’s findings.”).

Notably, the Court acknowledged in Hyundaithat the causation standard for strict liability isproducing cause, while the standard for breach ofwarranty is proximate cause, and noted thatseparate submissions would have been necessaryfor the two causation standards had the plaintiff’s“question and instruction correctly incorporatedthe element of proximate cause.” Hyundai, 995S.W.2d at 667.

1Due to the complexity of this issue,section B.7. of this paper analyzes this issue inmore detail. Moreover, a distinct body of caselaw has developed in the context of parental rightstermination cases, especially in the Waco Court ofAppeals. Texas Dept. of Human Servs. v. E.B.,802 S.W.2d 647 (Tex. 1990); In re A.V., 57S.W.3d 51 (Tex. App.—Waco 2001, no pet. h.)(rule 53.7(f) motion filed); In re M.C.M., 57S.W.3d 27, (Tex. App.—Houston [1st Dist.] 2001,no pet.h.) (rule 53.7(f) motion filed); In re B.L.D.,56 S.W.3d 203 (Tex. App.—Waco 2001, no pet.h.); In re J.F.C., 57 S.W.3d 66 (Tex. App.—Waco2001, no pet. h.).






















5

Nevertheless, the submission of multipleclaims in a single issue may create certain risksfor the plaintiff on appeal. In a recent opinion, theTexas Supreme Court held that “when a jury basesa finding of liability on a single broad-formquestion that commingles invalid theories ofliability with valid theories,” the error is reversiblebecause “the appellate court is often unable todetermine the effect of this error . . .” Crown LifeIns. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). See Kansas City Southern Railway Co. v. Stokes,20 S.W.3d 45, 51 (Texarkana 2000, no pet.)(finding improper instruction to FELA actionresulting in reversible error because “it isimpossible for [the court] to determine that thejury’s answer was not based on this improperlysubmitted duty instruction.”) Moreover, broad-form submission may not be feasible when thereare alternative liability standards and thegoverning law is unsettled or when the trial courtis unsure whether it should submit a particulartheory of liability. Casteel, 22 S.W.3d at 390;Excel Corp. v. Apodaca, 51 S.W.3d 686, (Tex.App.—Amarillo, pet. filed). According to theHouston Court of Appeals, a mere possibility thatthe jury got it right despite the error is no longer aviable appellate analytical standard applicable tocharge error involving improper theories ofliability. Redding, 2001 WL 726435 *7.

3. Examples of Broad FormSubmissions.

Since 1973, the Supreme Court hasencouraged broad form submission—especially innegligence cases. Historically, negligence casesdominated the Supreme Court’s consideration ofissue submission. More recently, broad formsubmissions in commercial cases have beenreviewed and approved or disapproved. Explanations and examples of broad submissionpractice since 1973, as well as sample issues fromthe Texas Pattern Jury Charges, are listed below:

a. Contract and Commercial Cases.

Breach Of Contract and Island Recreational.

A breach of contract claim requires ashowing that there was (1) a valid contract, (2) theplaintiff performed or tendered performance, (3)

the defendant breached the contract, and (4) theplaintiff was damaged as a result of that breach. See Hussong v. Schwan’s Sales Enters., Inc., 896S.W.2d 320, 326 (Tex. App.—Houston [1st Dist.]1995, no writ).

The PJC offers the following samples ofbreach of contract questions:

1) Did Paul Payne and Don Davisagree [insert all disputed terms]?[Insert instructions, ifappropriate.]Answer: _______________

2) Did Don Davis fail to comply with theagreement?

[ I n s e r t i n s t r u c t i o n s , i fappropriate.]Answer: _______________

COMM. ON PATTERN JURY CHARGES, STATE BAR OF

TEX., TEXAS PATTERN JURY CHARGES PJC 101.1,101.2 (2000). The first question assumes a disputeas to the formation of a contract. The secondquestion assumes that a contract exists and that theparties dispute whether a breach occurred. Commonto both questions is the need for instructions toshape the particular circumstances of the disputebeing decided.

The necessity and appropriateness of certaininstructions have garnered much attention from theTexas Supreme Court. Despite this consideration,these issues remain somewhat unclear. Decided in1986, Island Recreational DevelopmentCorporation v. Republic of Texas SavingsAssociation involved the necessity andappropriateness of certain jury instructions for abreach of contract issue. 710 S.W.2d 551, 553 (Tex.1986). In this case, Island sued Republic for itsfailure to fund a loan commitment. In its petition,Island specifically alleged that Republic waived acondition in the loan commitment, and that Islandperformed completely under the contract. Id. Incontrast, Republic argued that Island failed toperform a condition precedent of the contract. Id.

At trial, the court was presented withinstructions and issues concerning waiver andestoppel, substantial performance, full and finalcompletion, assignment and others. However, the









6

court rejected the parties’ issues and submitted onebroad form question:

ISSUE: Do you find from apreponderance of the evidence that[Island] performed their obligations underthe Commitment Letter in question?ANSWER: “We do.”

Id. at 554. The court submitted no instructions withthis issue and neither party objected to the charge onthis ground.

In its initial 5-4 opinion, the Texas SupremeCourt reversed this broad form submission becauseIsland failed to secure a specific jury finding onwaiver. On rehearing, however, the Court withdrewits prior opinion, approved the broad formsubmission, and affirmed the judgment in favor ofIsland. In so doing, the Court held that although thetrial judge was following the policy concerningbroad issue submissions, the trial judge shouldsubmit, when requested, appropriate accompanyinginstructions. Id. at 555.

The dissent suggested the following submissionto resolve the waiver issue as an independent groundof defense:

ISSUE: “Do you find from apreponderance of the evidence that[plaintiff] performed all of the obligationsunder the commitment letter which[defendant] did not waive? You areinstructed that waiver is defined asintentionally giving up a known right.You are instructed that performed meanscarrying out obligations as required by thecontract.”

Id. at 557 n.1 (Spears, J. dissenting).

Fourteen years later, the Texas Supreme Courtdecided Crown Life Insurance Company v. Casteel,22 S.W.3d 378, 381-82 (Tex. 2000), which involvedclaims against an insurance company bypolicyholders and an insurance agent who soughtrecovery under article 21.21 of the Insurance Codeand for DTPA-based violations. After instructingthe jury as to thirteen independent grounds ofrecovery, five of which included DTPA causes of

action, the court submitted only one question onliability. The jury then determined that theinsurance company was liable to the agent —presumably under at least one of the thirteen causesof action on which they were instructed.

The Supreme Court determined that, althoughthe agent had standing under the Texas InsuranceCode to sue the insurance company, he had nostanding to allege DTPA violations. Therefore, thetrial court incorrectly included the five DTPAcauses of action in the list of violations. Ultimately,the Court held that “submitting invalid theories ofliability in a single broad form jury question isharmful error when it cannot be determined whetherthe jury based its verdict on one or more of theinvalid theories.” Id. at 381. Concluding that thesubmission was harmful error, the Court stated that:

It is fundamental to our system ofjustice that parties have the right to bejudged by a jury properly instructed in thelaw. Yet, when a jury bases a finding ofliability on a single broad-form questionthat commingles invalid theories ofliability with valid theories, the appellatecourt is often unable to determine theeffect of this error. The best the court cando is determine that some evidence couldhave supported the jury’s conclusion on alegally valid theory. To hold this errorharmless would allow a defendant to beheld liable without a judicialdetermination that a factfinder actuallyfound that the defendant should be heldliable on proper, legal grounds. [Citationsomitted.] Accordingly, we hold that whena trial court submits a single broad-formliability question incorporating multipletheories of liability, the error is harmfuland a new trial is required when theappellate court cannot determine whetherthe jury based its verdict on an improperlysubmitted invalid theory. [Citationsomitted.]

Id. at 388.

Breach of Insurance Policy.

The Texas Pattern Jury Charges do not provide



7

a breach of insurance policy question, per se.Instead, the breach of contract question is fashionedto the particular facts of the insurance case.Implementing this process, several Texas cases offerthe examples of jury questions and instructionsaddressing such a claim. For example:

ISSUE 1: Did State Farm breach theinsurance contract with Ioan and LianaNicolau which breach was a proximatecause of damage, if any, to Ioan and LianaNicolau?

ANSWER: “Yes”

Nicolau v. State Farm Lloyds, 869 S.W.2d 543, 549(Tex. App.—Corpus Christi 1993), aff’d in part,rev’d on other grounds, 951 S.W.2d 444 (Tex.1997). Another example is as follows:

Did Texas Pacific Indemnity Companybreach the insurance contract withAmarco Petroleum, Inc.?

Texas Pacific Indemnity Companybreached the contract only if it failed topay for a covered loss.

A covered loss means a loss of money orproperty resulting directly from one ormore fraudulent or dishonest actscommitted by a covered employee ofAmarco Petroleum, Inc., acting alone or incollusion with others.

A covered employee means any employeeof Amarco Petroleum, Inc. except JamesPlante.

A covered loss does not include a loss dueto any fraudulent or dishonest actscommitted by Amarco Petroleum, Inc. forits own benefit, acting alone or incollusion with others.

Answer “Yes” or “No.”Answer: Yes.

Texas Pac. Indem. Co. v. Atlantic Richfield Co., 846S.W.2d 580, 582-83 (Tex. App.—Houston [14thDist.] 1993, writ denied). A third and final example

is as follows:

ISSUE 1: Did a loss occur which wascovered and payable under thepolicy?

ANSWER: Yes.

ISSUE 2: What was the amount of suchloss, if any, payable under thepolicy?

ANSWER: $10,000,000.00.

National Fire Ins. Co. of Pittsburgh v. ValeroEnergy Corp., 777 S.W.2d 501, 506 (Tex.App.—Corpus Christi 1989, writ denied) (survivingthe challenge that this submission had the effect ofimproperly asking the jury a question of law aboutthe construction of the policy of insurance).

Contractual Performance.

Because “a party to a contract who is himself indefault cannot maintain a suit for its breach,” thequestion of contractual performance may be critical,depending on the particular facts of a case, may bea specific jury question. See Gulf Pipe Line Co. v.Nearen, 135 Tex. 50, 56, 138 S.W.2d 1065, 1068(Tex. Comm’n App. 1940, opin. adopted); Kelly v.Webb, 27 Tex. 368 (1864). Following IslandRecreation, the Fourteenth Court of Appealsapproved the following controlling question in acase alleging both breach of contract and breach offiduciary duty:

Do you find the failure, if any, of QuailHarbor Condominium Association, Inc. toact reasonably and in good faith underduties of maintenance and repair requiredby the Condominium Declarationproximately caused damage [to] theproperty of W. M. Riddick?

Riddick v. Quail Harbor Condominium Ass’n, Inc.,7 S.W.3d 663, 673 (Tex. App.—Houston [14thDist.] 1999, no writ). Another example combinestwo disputed fact issues:

Do you find from a preponderance of theevidence that during the time in questionCoulson and Associates Engineers, Inc.furnished the Lake LBJ Municipal Utility









8

District with sufficient plans andspecifications for construction of a watersystem, a sanitary sewer system anddrainage for the needs of such District,and to secure approvals from appropriategovernmental agencies, under thecircumstances then existing?

ANSWER: “Yes”

Bennett Coulson & CAE, Inc. v. Lake LBJ Mun.Util. Dist., 781 S.W.2d 594, 596 (Tex. 1989).

In Bennett Coulson, the court of appeals heldthat this submission erroneously commented on theweight of the evidence by combining an establishedfact (whether the plans and specification weresufficient to secure governmental approval) with acontested issue (whether the plans and specificationwere sufficient to meet the district’s needs). LakeLBJ Mun. Util. Dist. v. Coulson & C.A.E., Inc., 771S.W.2d 145 (Tex. App.—Austin 1988). Thesupreme court, however, saw no error in theconjunctive submission of the two disputed factissues: “That one clause of the compound questionmight have been answered more easily than theother clause does not constitute reversible error . . ..” Bennett Coulson, 781 S.W.2d at 597.

Oil and Gas: Implied Covenant to Develop.

Like the jury question for contractualperformance, the Texas Pattern Jury Charges do notoffer jury issues specific to oil and gas disputes.Instead, these questions, instructions and definitionsare gleaned primarily from the cases. For example:

ISSUE: Do you find from apreponderance of the evidence that Sunhas failed to reasonably develop theJackson lease?

Answer: “Sun has failed” or “Sun has notfailed.”

Answer: “Sun has not failed.”

In answering Special Issue No. 1, you areinstructed that the term “to reasonablydevelop” means the development which aprudent operator would do with respect to

any known producing formation of thelease.

In this context, reasonable developmentmay include the drilling of additionalwells into any such producing formation.A prudent operator will undertake to drilladditional wells into such producingformation only if there is a reasonableexpectation that the proceeds, if any, fromthe production obtained, if any, as a resultof such drilling will exceed the cost ofdrilling and operating the well . . .[balance of the instruction not included].

Sun Exploration & Prod. Co. v. Jackson, 715S.W.2d 199, 202-03 (Tex. App.—Houston [1stDist.] 1986), rev’d, 783 S.W.2d 202, 204-05 (Tex.1989) (approving jury charge).

b. Statutory Liability.

Deceptive Trade Practice.

The Texas Pattern Jury Charges offer no lessthan seventeen questions, instructions, anddefinitions for claims under the DTPA. See COMM.ON PATTERN JURY CHARGES, STATE BAR OF TEX.,TEXAS PATTERN JURY CHARGES PJC 102.1 - 102.13,102.102.21, 102.23-102.24 (2000). For example,the question and instruction applying to a false,misleading, or deceptive act or practice in violationof DTPA section 17.46(b) is as follows:

Did Don Davis engage in any false,misleading, or deceptive act or practicethat was a producing cause of damages toPaul Payne?

“Producing cause” means an efficient,exciting, or contributing cause that, in anatural sequence, produced the damages,if any. There may be more than oneproducing cause.

“False, misleading, or deceptive act orpractice” means any of the following:[Insert appropriate instructions.]

Answer: _______________









9

Id., 102.1. In addition, the PJC provides severalsample questions, instructions, and definitions forclaims under the Texas Insurance Code 21.21 andbad faith insurance claims. See id., 102.14, 102.16 -102.19, 102.21 - 102.24, 103.1 - 103.3. Forexample, the PJC offers the following question forclaim under Insurance Code section 21.21:

Did Don Davis engage in any unfair ordeceptive act or practice that causeddamages to Paul Payne?

“Unfair or deceptive act or practice”means any of the following:[Insert appropriate instructions.]

Answer: _______________

Id.., 102.14.

Several Texas cases have approved variationsof these questions and instructions that track thestatutory language of the DTPA and InsuranceCode. Brown v. American Transfer and StorageCo., 601 S.W.2d 931, 937 (Tex.), cert. denied, 449U.S. 1015 (1980); see also City of Houston v. Leach,819 S.W.2d 185, 197 (Tex. App.—Houston [14thDist.] 1991, no writ). For example, the DTPA jurycharge in Spencer v. Eagle Star Insurance Companyof America, 876 S.W.2d 154, 157 (Tex. 1994),disapproved because it failed the Brown test by nottracking the language of the statute as closely aspossible. The charge in Spencer improperly allowedthe jury to find an unfair insurance practice basedupon any action by defendant that took advantage ofthe plaintiffs and resulted in any inequitable result.Id.

Resembling the Texas Pattern Jury Chargeexample and closely tracking the language of theDTPA statutes, the jury question in Matthiessen v.Schaefer was as follows:

“Did [the sellers] engage in any false,misleading, or deceptive act or practicethat was a producing cause of damages to[Schaefer]?” [definitions of “Producingcause” and “False, misleading, ordeceptive act or practice” as included.]

27 S.W.3d 25, 32 (Tex. App.—San Antonio 2000,

no pet. h.), citing 4 COMM. ON PATTERN JURY

CHARGES, STATE BAR OF TEX., TEXAS PATTERN

JURY CHARGES PCJ 102.01, 102.3 (1993).

Despite properly tracking the language of thestatutes, the jury charge may be incorrect if itencompasses parties that lack standing. In CrownLife Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000),an agent sued Crown Life under Article 21.21 of theTexas Insurance Code and also under the provisionsof the Deceptive Trade Practices Act (DTPA) as aconsumer. The trial court submitted a single broadform question on the issue of the insurance carrier’sliability to the agent. The question instructed thejury on thirteen independent grounds for liability,the first five of which were taken from the DTPAsection 17.46(b) laundry list. The court held,however, that the agent was not a consumer and thushad no cause of action under the DTPA. TheSupreme Court held that “submitting invalidtheories of liability in a single broad form juryquestion is harmful error when it cannot bedetermined whether the jury based its verdict on oneor more of the invalid theories.” Id. at 388.Although the Court in Crown Life was addressingliability issues, there should be no distinction to bemade in the problems connected with a broad formsubmission of a damage question. Aboud v.Schlichtemeier, 6 S.W.3d 742, 749 (Tex. App.—SanAntonio 1999, pet. denied).

c. Torts.

Fraud.

The elements of fraud are: (1) a materialmisrepresentation was made; (2) it was false; (3)when the representation was made, the speakerknew it was false or the statement was recklesslyasserted without any knowledge of its truth; (4) thespeaker made the false representation with the intentthat it be acted on by the other party; (5) the otherparty acted in reliance on the misrepresentation; and(6) the party suffered injury as a result. KajimaInt’l, Inc. v. Formosa Plastics Corp., U.S.A., 15S.W.3d 289, 292 (Tex. App.—Corpus Christi 2000,pet. denied), citing DeSantis v. Wackenhut Corp.,793 S.W.2d 670, 688 (Tex. 1990). The fraud jurycharge used in Trenholm v. Ratcliff, 646 S.W.2d 927(Tex. 1983) is as follows:


http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=US_supremeopinions&volume=449&edition=U.S.&page=1015&id=24707_01












10

ISSUE: “Do you find from apreponderance of the evidence that priorto the purchase of Greenhollow lots byPlaintiff Oxford (Trenholm), Raymond F.Ratcliff, Jr. made false representations,either one or more, to representatives ofthe Plaintiff as to material facts, with theintent of inducing the Plaintiff to purchaseGreenhollow lots, which were relied uponby Plaintiff.”

ANSWER: “We do.”

Trenholm, 646 S.W.2d at 932; see also Sears,Roebuck & Co. v. Meadows, 877 S.W.2d 281, 282(Tex. 1994) (the trial court’s refusal, over objection,to include necessary element of “intent to mislead”in definition of “fraud” constituted reversible error).

In Trenholm, the Texas Supreme Courtapproved the above broad form submission anddecided that the plaintiff did not need to obtain afinding as to reliance related to the purchase of eachof eighteen lots (even though purchase of seven lotsoccurred after plaintiff’s discovery of themisrepresentation) because plaintiff’s reliance didnot occur when he purchased the lots but ratherwhen he entered into an agreement obligating him tobuild on the lots. Trenholm, 646 S.W.2d at 932; seealso Shasteen v. Mid-Continent Refrigerator Co.,517 S.W.2d 437, 438 (Tex. Civ. App.–Dallas 1974,writ ref’d n.r.e.). However, where the plaintiffalleges that a single specific statement constitutedfraud, a trial court may submit separate questions,the first to determine whether the statement wasmade, and the second, conditional question todetermine whether the defendant committed fraudby making the statement. Byrne v. Harris AdacomNetwork Servs., 11 S.W.3d 244, 253 (Tex.App.–Texarkana 1999, pet. denied).

Finally, in a case in which the plaintiff allegesseveral instances of fraud, a trial court commitsreversible error if it refuses to submit a broad formquestion that encompasses all of the allegedinstances of fraud on which evidence wasintroduced. See, e.g., Kajima, 15 S.W.3d at 292-94(the trial court improperly limited the fraud questionto whether Kajima entered into the contracts as aresult of fraud by Formosa, thus preventing the juryfrom considering Formosa’s acts of fraud in

“stringing along” Kajima after the work was underway).

Negligence - Lemos Overrules Muckleroy.

A claim for negligence requires the followingelements: (1) a duty owed to the plaintiff, (2) abreach of that duty, and (3) damages proximatelycaused by the breach. Greater Houston Transp. Co.v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Toestablish such a claim, the plaintiff must show thedefendant’s action or failure to act was a proximatecause of his damages. Id.; El Chico Corp. v. Poole,732 S.W.2d 306, 311 (Tex. 1987). Encompassingthese elements, the Texas Pattern Jury Charges offerthe following question for a negligence claim:

Did the negligence, if any, of thosenamed below proximately cause the[occurrence] [injury] [occurrence orinjury] in question?

Answer “Yes” or “No” for each of thefollowing:

a. Don Davis __________________b. Paul Payne __________________c. Sam Settlor __________________d. Responsible Ray _______________e. Connie Contributor_____________


TEX., TEXAS PATTERN JURY CHARGES PJC 4.1(2000). The circumstances of the case will dictatethe inclusion of the plaintiff and settling defendantsin the charge.

The PJC sample question illustrates astreamlined approach that differs greatly from the“multiple choice” question approved over a quartercentury ago in Members Mutual InsuranceCompany v. Muckleroy. In this case, the First Courtof Appeals endorsed the following negligencequestion:

ISSUE: Whose negligence, if any, do youfind from a preponderance of the evidenceproximately caused the collision made thebasis of this suit?

(a) The defendant, Verdie Webber.










11

(b) The plaintiff, Jasper Muckleroy.(c) Both.

ANSWER: “a”

Muckleroy, 523 S.W.2d 77, 79 (Tex. Civ.App.—Houston [1st Dist.] l975, writ ref’d n.r.e.).

Nearly ten years later in Lemos v. Montez, theTexas Supreme Court rejected the use of “both,”“neither,” or “no one” to the broad negligence /proximate cause special issue. 680 S.W.2d 798, 800(Tex. 1984). In this car wreck case, the Courtbelieved that the “multiple choice” chargeeffectively submitted special issues on unavoidableaccident, and since unavoidable accident is aninferential rebuttal issue, the submission waserroneous. According to the Court, the correct wayto submit an issue when there is evidence thatneither party proximately caused the accident is toset forth the correct definition of “unavoidableaccident” and ask:

ISSUE: Whose negligence, if any, do youfind from a preponderance of the evidenceproximately caused the collision ofDecember 27, 1979 made the basis of thissuit?

Yes No(a) Alfred R. Montez (b) Ignacio Nat Arrellano

Lemos, 680 S.W.2d at 800. This submission alsoincorporates the checklist format used in Pate v.Tellepsen Const. Co., 596 S.W.2d 548, 550 (Tex.Civ. App.—Houston [1st Dist.] 1980, writ ref’dn.r.e.), but without the use of “neither,” “no one,” or“both” disapproved in Lemos.

Finally, in the context of a “negligentundertaking” claim, the Texas Supreme Courtrecently held that the jury charge should includeinstructions that:

(1) the defendant gratuitously or forcompensation undertook to performservices that it knew or should haveknown were necessary for theplaintiff’s protection,

(2) the defendant failed to exercisereasonable care in performing thoseservices, and

(3) either the plaintiff relied on thedefendant’s performance, or thedefendant’s performance increasedthe plaintiff’s risk of harm.

Torrington Co. v. Stutzman, 46 S.W.3d 829, 836-37(Tex. 2000).

Tortious Interference With Contract.

The elements of tortious interference with acontract are: (1) the existence of a contract subjectto interference; (2) willful and intentionalinterference; (3) interference that proximatelycaused damage; and (4) actual damage or loss.Anderson, Greenwood & Co. v. Martin, 44 S.W.3d200, 218 (Tex. App.—Houston [14th Dist.] 2001,pet. filed 07/02/2001), citing Powell Indus., Inc. v.Allen, 985 S.W.2d 455, 456 (Tex. 1998) (percuriam); ACS Investors, Inc. v. McLaughlin, 943S.W.2d 426, 430 (Tex.1997). Reflecting theseelements, the PJC provides the following samplequestion and instruction for an intentionalinterference with an existing contract claim:

Did Don Davis intentionally interfere with[identify contract]?

Interference is intentional if committedwith the desire to interfere with thecontract or with the belief thatinterference is substantially certain toresult.

Answer: _______________


TEX., TEXAS PATTERN JURY CHARGES PJC 106.1(2000).

Resolving an issue that may be a precursor toclaim of tortious interference, the Houston Court ofAppeals approved the following jury charge thatdetermined the controlling issue of whether theparties to the underlying contract intended to bebound:












12

ISSUE 1. Do you find from apreponderance of the evidence that at theend of the Getty Oil board meeting ofJanuary 3, 1984, Pennzoil and each of theGetty entities, to wit, the Getty OilCompany, the Sarah C. Getty Trust andthe J. Paul Getty Museum, intended tobind themselves to an agreement thatincluded the following terms:

a. all Getty Oil shareholdersexcept Pennzoil and the Sarah C. GettyTrust were to receive $110 per share, plusthe right to receive a deferred cashconsideration from the sale of ERCCorporation of at least $5 per share withinfive years;

b. Pennzoil was to own 3/7ths ofthe stock of Getty Oil and the Sarah C.Getty Trust was to own the remaining4/7ths of the stock of Getty Oil; and

c. Pennzoil and the Sarah C. GettyTrust were to endeavor in good faith toagree upon a plan for restructuring GettyOil on or before December 31, 1984, andif they were unable to reach suchagreement then they would divide theassets of Getty Oil between them also ona 3/7ths-4/7ths basis.

Answer: “We do” or “We do not.”

The following instructions accompaniedSpecial Issue No. 1:

1. An agreement may be oral, itmay be written or it may be partly writtenand partly oral. Where an agreement isfully or partially in writing, the lawprovides that persons may bindthemselves to that agreement even thoughthey do not sign it, where their assent isotherwise indicated.

2. In answering Issue No. 1, youshould look to the intent of Pennzoil andthe Getty entities as outwardly orobjectively demonstrated to each other bytheir words and deeds. The question is

not determined by the parties’ secret,inward, or subjective intentions.

3. Persons may intend to be boundto an agreement even though they plan tosign a more formal and detailed documentat a later time. On the other hand, partiesmay intend not to be bound until such adocument is signed.

4. There is no legal requirementthat parties agree on all the mattersincidental to their agreement before theycan intend to be bound. Thus, even ifcertain matters were left for futurenegotiations, those matters may not havebeen regarded by Pennzoil and the Gettyentities as essential to their agreement, ifany, on January 3. On the other hand, youmay find that the parties did not intend tobe bound until each and every term oftheir transaction was resolved.

5. Every binding agreement carrieswith it a duty of good faith performance.If Pennzoil and the Getty entities intendedto be bound at the end of the Getty Oilboard meeting of January 3, they wereobligated to negotiate in good faith theterms of the definitive merger agreementand to carry out the transaction.

6. Modification or discussions tomodify an agreement may not defeat ornullify a prior intention to be bound.Parties may always, by mutual consentand understanding, add new provisionsspelling out additional terms that were notincluded in their original agreement.

ISSUE 2: Do you find from apreponderance of the evidence thatTexaco knowingly interfered with theagreement between Pennzoil and theGetty entities, if you have so found?

Answer: “We do” or “We do not.”

The following Instructions accompaniedSpecial Issue No. 2:


13

Knowledge of a fact can be shown eitherby direct evidence of what it knew orwhat it was told, or by indirect orcircumstantial evidence. A fact may beestablished by indirect or circumstantialevidence when the fact is fairly andreasonably inferred from other factsproven in the case.

In order to find that Texaco interferedwith the agreement, if any, inquired aboutabove, it must be shown by apreponderance of the evidence thatTexaco wanted to cause the breach, or toprevent the performance of thisagreement, or that Texaco knew that abreach or failure to perform would occuras a result of its actions.

Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768,812-13, 826 (Tex. App.—Houston [1st Dist.] 1987,writ ref’d n.r.e.), cert. dism’d, 485 U.S. 994 (1988).

Tortious Interference With Prospective BusinessRelations.

For a claim involving the intentionalinterference with prospective contractual relations,the PJC offers the following sample question andinstruction:

QUESTION ______Did Don Davis wrongfully interfere

with [describe Paul Payne’s prospectivecontractual relations]?

Wrongful interference occurred if—

a. there was a reasonableprobability that Paul Payne would haveentered into the contractual relations and

b. Don Davis intentionallyprevented the contractual relations fromoccurring with the purpose of harmingPaul Payne.

Answer: _______________


TEX., TEXAS PATTERN JURY CHARGES PJC 106.2

(2000). The PJC offers the following samplequestion on the defense of legal justification:

If your answer to Question ______[106.1 or 106.2] is “Yes,” then answer thefollowing question.

Otherwise, do not answer the following question.

QUESTION ______

Did Don Davis interfere because hehad a good-faith belief that he had a rightto do so?

Answer: _______________

Id., 106.3.

In a decision that sought to eliminate theconfusion surrounding the particular conductqualifying as “tortious interference,” the TexasSupreme Court recently revamped the elements ofthis claim and effectively made PJC 106.2 obsolete.Specifically, the Court held that:

to recover for tortious interference with aprospective business relation a plaintiffmust prove that the defendant’s conductwas independently tortious or wrongful.By independently tortious we do not meanthat the plaintiff must be able to prove anindependent tort. Rather, we mean onlythat the plaintiff must prove that thedefendant’s conduct would be actionableunder a recognized tort . . . . [A] plaintiffcould recover for tortious interference byshowing an illegal boycott, although aplaintiff could not recover against adefendant whose persuasion of others notto deal with the plaintiff was lawful.Conduct that is merely “sharp” or unfair isnot actionable and cannot be the basis foran action for tortious interference withprospective relations, and we disapproveof cases that suggest the contrary.




14

Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711,726 (Tex. 2001). Specifically, regarding the thirdelement, the Court held:

The concepts of justification and privilegeare subsumed in the plaintiff’s proof,except insofar as they may be defenses tothe wrongfulness of the alleged conduct.For example, a statement made against theplaintiff, though defamatory, may beprotected by a complete or qualifiedprivilege. Justification and privilege aredefenses in a claim for tortiousinterference with prospective relationsonly to the extent that they are defenses tothe independent tortiousness of thedefendant’s conduct. Otherwise, theplaintiff need not prove that thedefendant’s conduct was not justified orprivileged, nor can a defendant assert suchdefenses.

Id. at 726-27. In so holding, the Court rejected thefollowing jury charge—which tracked the languageof PJC 106.2—as an incorrect statement of the law:

ISSUE 1: Did Wal-Mart wrongfullyinterfere with Plaintiffs’ prospectivecontractual agreement to lease theproperty to Fleming?

Wrongful interference occurred if (a)there was a reasonable probability thatPlaintiffs would have entered into thecontractual relation, and (b) Wal-Martintentionally prevented the contractualrelation from occurring with the purposeof harming Plaintiffs.

Id. at 715. As a result of this decision, the samplequestion and instruction for tortious interferencewith prospective business relationship are no longercorrect. Beyond this statement there lies greatuncertainty as to what should replace the old PJCmodel. The Sturges opinion raises as manyquestions as it answers. How is the malice elementto be treated? Does the jury need to independentlyfind an “independent tort”? Is justification goneforever? The authors suggest that, at a minimum,the following elements may be required:

(1) a reasonable probability that theparties would have entered into acontractual relationship;

(2) an “independently tortious orunlawful” act by the defendant thatprevented the relationship fromoccurring;

(3) the defendant did such act with aconscious desire to prevent therelationship from occurring or heknew that the interference wascertain or substantially certain tooccur as a result of his conduct; and

(4) the plaintiff suffered actual harm ordamage as a result of the defendant’sinterference.

Id. at 726-27.

Medical Malpractice.

In a professional malpractice case, the plaintiffmust prove: (1) a duty by the professional to actaccording to a standard; (2) a breach of theapplicable standard of care; (3) an injury; and (4) acausal connection between the breach of care andthe injury. Bradford v. Alexander, 886 S.W.2d 394,396 (Tex. App.—Houston [1st Dist.] 1994, no writ).In a medical malpractice case, breach of thestandard of care and proximate cause must beestablished through expert testimony. Onwuteaka v.Gill, 908 S.W.2d 276, 281 (Tex. App.—Houston[1st Dist.] 1995, no writ).

In the recent medical malpractice case styledOcomen v. Rubio, the court of appeals upheld thefollowing jury charge:

Did the negligence, if any, of Pedro A.Rubio proximately cause the occurrencein question?

“Negligence,” with reference tothe conduct of Pedro A. Rubio,means the failure to use ordinarycare; that is, failing to do thatwhich a general surgeon ofordinary prudence would have done





15

under the same or similarcircumstances or doing that whicha general surgeon of ordinaryprudence would not have doneunder the same or similarcircumstances.

“Ordinary Care,” with referenceto the conduct of Pedro A. Rubio,means that degree of care which ageneral surgeon of ordinaryprudence possessing and exercisinga reasonable degree of skill andlearning would use under the sameor similar circumstances.

“Proximate Cause,” withreference to the conduct of PedroA. Rubio, means that cause, whichin a natural and continuoussequence, produces an event, andwithout which cause such eventwould not have occurred. In orderto be a proximate cause, the act oromission complained of must besuch that a general surgeon usingordinary care would have foreseenthat the event, or some similarevent, might reasonably resulttherefrom. There may be morethan one proximate cause of anevent.

Answer “Yes” or “No”

Answer: NO

24 S.W.3d 461, 466 (Tex. App.— Houston [1stDist.] 2000, no pet.) (emphasis in original).

In addition, alleged misrepresentations duringthe physician’s disclosure of the risks and hazards ofa medical procedure must be submitted to the jury asan issue of alleged failure to obtain informedconsent. TEX. REV. CIV. STAT. ANN. art. 4590i, §§6.01-.07; Marks-Brown v. Rogg, 928 S.W.2d 304,306 (Tex. App.–Houston [14th Dist.] 1996, writdenied). Even though a separate action for fraudmay be maintained under certain facts, article 4590iis the only valid theory of recovery for allegations ofmisrepresenting the risks and hazards of surgery.

Crundell v. Becker, 981 S.W.2d 880, 883-84 (Tex.App.– Houston [1st Dist.] 1998, pet. denied)(concluding that “the issue of whether [plaintiff]would have agreed to the surgery had she notbelieved she had cancer is separate and distinct fromthe issue of whether she was fully informed of therisks attendant to having surgery”).

Medical malpractice cases do not warrant anexception to the rule requiring broad formsubmission, no matter how many specific acts ofnegligence are alleged. Crundell, 981 S.W.2d at884; Winkle v. Tullos, 917 S.W.2d 304, 312 (Tex.App.–Houston [14th Dist.] 1995, writ denied).However, the issue of informed consent may besubmitted as a separate question. See, e.g., Ocomenat 468. The question of informed consent is whethera reasonable person could have been influenced inmaking a decision whether to give or withholdconsent to the procedure had he or she known of therisk. Barclay v. Campbell, 704 S.W.2d 8, 10 (Tex.1986). A sample issue on informed consent is asfollows:

Did Pedro A. Rubio fail to disclose toJudy C. Ocomen such risks and hazardsinherent in the resection (of the ileocecalvalve, of the cecum, and/or of the terminalileum) that he performed that could haveinfluenced a reasonable person in makinga decision to give or withhold consent tosuch treatment?

Answer “Yes” or “No”

Answer: NO

Ocomen at 468.

Civil Conspiracy.

A civil conspiracy is a combination by two ormore persons to accomplish an unlawful purpose orto accomplish a lawful purpose by unlawful means.Triplex Communications, Inc. v. Riley, 900 S.W.2d716, 719 (Tex. 1995). Civil conspiracy requiresspecific intent; in other words, the parties must beaware of the harm or wrongdoing at the inception ofthe combination or agreement. Id. Therefore,merely proving a joint “intent to engage in theconduct that resulted in the injury” is insufficient to









16

establish a cause of action for civil conspiracy. Id.;Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996).

The PJC provides the following conspiracyissue:

[Conditioned on findings of a tort orstatutory violation that proximatelycaused damages.]

Was Connie Conspirator part of aconspiracy that damaged Paul Payne?

To be part of a conspiracy, ConnieConspirator and another person orpersons must have had knowledge of,agreed to, and intended a commonobjective or course of action that resultedin the damages to Paul Payne. One ormore persons involved in the conspiracymust have performed some act or acts tofurther the conspiracy.

Answer: _______________


TEX., TEXAS PATTERN JURY CHARGES PJC 109.1(2000).

Unlike the pattern charge, the jury in Hill v.Robinson received the following conspiracyquestion requiring proof by a preponderance of theevidence:

ISSUE: Do you find from apreponderance of the evidence whether aconspiracy existed between two or morepersons, the purpose of which was to takethe life of Dr. John R. Hill?

You are instructed that a conspiracy isdefined as a combination of two or morepersons to accomplish an unlawfulpurpose, or to accomplish a lawfulpurpose by unlawful means. You arefurther instructed that in order to find aconspiracy, you must find from apreponderance of the evidence each andevery one of the following: (1) there wasa combination of two or more persons, (2)there was an agreement or meeting of theminds among these persons, (3) on a

common purpose, (4) that each of thosepersons had knowledge of the purpose, (5)that each of those persons intended toparticipate therein, and (6) one or moreovert acts done in pursuance of theconspiracy.

JURY ANSWER: “We do not.”

Hill, 592 S.W.2d 376, 382-83 (Tex. Civ.App.—Tyler 1979, writ ref’d n.r.e.). See OperationRescue - Nat’l v. Planned Parenthood of Houstonand Southeast Tex., Inc., 975 S.W.2d 546, 554 (Tex.1998) (holding that trial court’s failure to instructthe jury that the act found to be in furtherance of theconspiracy must be overt and unlawful was notharmful).

False Imprisonment.

The essential elements of false imprisonmentare (1) a willful detention, (2) without consent, and(3) without authority of law. Sears, Roebuck & Co.v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985) (percuriam); H.E. Butt Grocery Co. v. Saldivar, 752S.W.2d 701, 702 (Tex. App.—Corpus Christi 1988,no writ). Encapsulating these elements, the TexasPattern Jury Charge for false imprisonment is asfollows:

Did Don Davis falsely imprison PaulPayne?

“Falsely imprison” means to willfullydetain another without legal justification,against his consent, whether suchdetention be effected by violence, bythreat, or by any other means that restrainsa person from moving from one place toanother.

Answer “Yes” or “No.”

Answer: _______________


TEX., TEXAS PATTERN JURY CHARGES PJC 6.1(2000). In addition, the PJC offers the followinginstructions on the unlawful detention by threat andthe privilege of investigating a theft, which shouldbe added to the charge if properly pled and some








17

proof of each is offered during trial:

“Detention by threat, violence, or othermeans” requires proof that the threat wassuch as would inspire in an ordinaryperson just fear of injury to his person,reputation, or property.

When a person reasonably believes thatanother has stolen or is attempting to stealproperty, that person has legaljustification to detain the other in areasonable manner and for a reasonabletime to investigate ownership of theproperty.

Id., PJC 6.2, 6.3. See Randall’s Food Markets, Inc.v. Johnson, 891 S.W.2d 640, 645 (Tex. 1995)(mandating the detention instruction if the caseinvolves a question about the existence of adetention); Castillo, 693 S.W.2d at 375 (mandatingthe affirmative defense instruction on theftinvestigation if the case involves a detention relatedto investigating the ownership of property).

A final example of a false imprisonment juryquestion comes from Castillo:

ISSUE: From a preponderance of theevidence, do you find that the plaintiffwas falsely imprisoned by the defendant?

Answer “She was” or “She was not”

Answer: She was not.

Castillo, 693 S.W.2d at 375. In reversing the courtof appeals decision, the Supreme Court held that thetrial court correctly submitted the falseimprisonment claim broadly, with the appropriateinstructions, and within the court’s discretion underRule 277.

Premises Liability - Invitee.

An invitee must prove that: (1) a condition ofthe premises created an unreasonable risk of harm tothe invitee; (2) the owner knew or reasonably shouldhave known of the condition; (3) the owner failed toexercise ordinary care to protect the invitee fromdanger; and (4) the owner’s failure was a proximate

cause of injury to the invitee. CMH Homes, Inc. v.Daenen, 15 S.W.3d 97 (Tex. 2000); Meeks v. Rosa,988 S.W.2d 216, 217 (Tex. 1999) (per curiam);Dallas Market Dev. Co. v. Liedeker, 958 S.W.2d382, 385 (Tex. 1997) (per curiam); State Dept. ofHighways & Public Transp. v. Payne, 838 S.W.2d235, 237 (Tex. 1992).

In Liedeker, the Supreme Court held that thejury charge should track each element of aninvitee’s premises liability claim so as to avoidholding the premises owner to an incorrect — and inthis case, higher — standard. Liedeker, 958 S.W.2dat 352. The trial court’s charge in Liedeker inquiredabout the third and fourth elements, except that itasked about a failure to exercise a high degree ofcare rather than a failure to exercise ordinary care,which was clearly wrong. Id.

In section 66.3 of the Texas Pattern JuryCharges, the proposed issue for invitee premisesliability is set forth as follows:


With respect to the condition of thepremises, Don Davis was negligent if—

a. the condition posed anunreasonable risk of harm, and

b. Don Davis knew or reasonablyshould have known of thedanger, and

c. Don Davis failed to exerciseordinary care to protect PaulPayne from the danger, by bothfailing to adequately warn PaulPayne of the condition andfailing to make that conditionreasonably safe.

“Ordinary care,” when used withrespect to the conduct of Don Davis asan owner or occupier of a premises,means that degree of care that wouldbe used by an owner or occupier of













18

ordinary prudence under the same orsimilar circumstances.


a. Don Davis ________________ b. Paul Payne _______________

c. Sam Settlor _______________d. Responsible Ray ___________e. Connie Contributor ________


TEXAS, TEXAS PATTERN JURY CHARGE PJC 66.3(2000).

The Supreme Court also recommends that thefollowing definitions accompany the jury question:

“Negligence,” when used with respect toan owner or occupier of a premises,means failure to use ordinary care toreduce or eliminate an unreasonable riskof harm created by a premises conditionwhich the owner or occupier knows aboutor in the exercise of ordinary care shouldknow about.

“Ordinary care,” when used with respectto an owner or occupier of a premises,means that degree of care which would beused by an owner or occupier of ordinaryprudence under the same or similarcircumstances.

Keetch v. Kroger, 845 S.W.2d 262, 267 (Tex. 1992);see PJC 65.1. Moreover, in McReynolds v. FirstOffice Management, 948 S.W.2d 342 (Tex.App.—Dallas 1997, no writ), the Dallas Court ofAppeals upheld this instruction in a case involvingan elevator accident, and rejected the argument thatTexas law requires elevator owners to use the“utmost human care” in operating the elevator.McReynolds, 948 S.W.2d at 345.

Premises Liability - Licensee.

The primary differences between the elementsa licensee must establish and those an invitee mustprove are that an invitee need only show that thelandowner reasonably should have known of thedefect (versus actual knowledge) and the invitee’s

knowledge of the defect is immaterial. See State v.Williams, 940 S.W.2d 583, 584-85 (Tex. 1996) (percuriam). In other words, a plaintiff who is alicensee must establish the following in a premisesdefect case: (1) that a condition of the premisesposed an unreasonable risk of harm to her; (2) theowner had actual knowledge of the defectivecondition; (3) the licensee had no knowledge of thedefective condition; (4) the owner failed to exerciseordinary care to protect the licensee from danger;and (5) such failure was a proximate cause of injuryto the licensee. State Dep’t of Highways & Pub.Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992),citing State v. Tennison, 509 S.W.2d 560, 561 (Tex.1974). Accord City of Grapevine v. Roberts, 946S.W.2d 841, 843 (Tex. 1997).

The PJC offers the following sample of alicensee jury issue:


With respect to the condition of thepremises, Don Davis was negligent if—

a. the condition posed anunreasonable risk of harm, and

b. Don Davis had actualknowledge of the danger, and

c. Paul Payne did not have actualknowledge of the danger, and

d. Don Davis failed to exerciseordinary care to protect PaulPayne from danger, by bothfailing to adequately warn PaulPayne of the condition andfailing to make that conditionreasonably safe.

“Ordinary care,” when used withrespect to the conduct of Don Davis asan owner or occupier of a premises,means that degree of care that wouldbe used by an owner or occupier ofordinary prudence under the same orsimilar circumstances.











19

a. Don Davis ________________b. Paul Payne _______________c. Sam Settlor _______________d. Responsible Ray ___________e. Connie Contributor ________


TEXAS, TEXAS PATTERN JURY CHARGE PJC 66.4(2000).

Gross Negligence.

In Transportation Insurance Co. v. Moriel, 879S.W.2d 10, 19 (Tex. 1994), the Supreme Court“examin[ed its] traditional definition of grossnegligence and identif[ied] its basic elements.” Inso doing, the Court defined gross negligence as“such an entire want of care as to establish that theact or omission was the result of actual consciousindifference to the rights, safety, or welfare of theperson affected.” Id. at 21, citing TEX. CIV. PRAC.& REM. CODE ANN. § 41.001(5) (Vernon Supp.1994). The Court also summarized the definition ofgross negligence as including the following twoelements:

(1) viewed objectively from thestandpoint of the actor, the act or omissionmust involve an extreme degree of risk,considering the probability and magnitudeof the potential harm to others, and

(2) the actor must have actual, subjectiveawareness of the risk involved, butnevertheless proceed in consciousindifference to the rights, safety, orwelfare of others.

Id. at 23. Since the time that Moriel was decided,the Supreme Court has confirmed this two- prongtest. See, e.g., Louisiana Pac. Corp. v. Andrade, 19S.W.3d 245, 246 (Tex. 1999).

Nevertheless, for causes of action accruing onor after September 1, 1995, the test for grossnegligence within the realm of the jury charge is“malice”:

Do you find by clear and convincingevidence that the harm to Paul Payneresulted from malice?

“Clear and convincing evidence”means the measure or degree of proof thatproduces a firm belief or conviction of thetruth of the allegations sought to beestablished.

“Malice” means:

(a) a specific intent by Dora Dotson tocause substantial injury to Paul Payne; or

(b) an act or omission by Dora Dotson,(i) which, when viewed objectivelyfrom the standpoint of Dora Dotson atthe time of its occurrence, involved anextreme degree of risk, considering theprobability and magnitude of thepotential harm to others; and(ii) of which Dora Dotson had actual,subjective awareness of the riskinvolved, but nevertheless proceededwith conscious indifference to therights, safety, or welfare of others.

Answer “Yes” or “No.”

Answer: _______________


TEXAS, TEXAS PATTERN JURY CHARGE PJC 61.5B(2000).

4. Submitting Actual Damages.

Generally, with regard to the submission of asingle cause of action, it is only necessary to submita single question on damages with an instruction onthe various measures of damages available in thecase. PJC 110.2 suggests the following question forcontract damages:

What sum of money, if any, if now paid incash, would fairly and reasonablycompensate Paul Payne for his damages,if any, that resulted from such failure tocomply?

See PJC § 110.2-.4. The phrase “resulting from,”which was originally derived from Jackson v.Fontaine’s Clinics, Inc., 499 S.W.2d 87, 90 (Tex.1973), was recently upheld in Toles v. Toles, 45







20

S.W.3d 252 (Tex. App.–Dallas 2001, pet. denied).The trial court submitted a damages questionpatterned closely after PJC 110.2 along with a“proximate cause” definition and an instruction that"[a]ctual damages, if any, in a claim for intentionalinfliction of emotional distress may be awarded forthe past and future value of reasonablecompensation for the harm from such severeemotional distress proximately caused by suchintentional infliction." Id. After properly objectingat trial, the appellant argued on appeal that thedamages question erroneously used the phrase“resulting from” rather than "proximate cause." TheDallas court concluded that, considering the chargein its entirety, the trial court did not abuse ofdiscretion in failing to use the term “proximatecause” in the damages question.

a. Does Casteel Apply to ErroneouslySubmitted Elements of Damages?

Under Casteel v. Crown Life Ins. Co., 22S.W.3d 378, 389 (Tex.2000), when a singlebroad-form liability question erroneouslycommingles valid and invalid liability theories andthe appellant's objection is timely and specific, theerror is harmful when it cannot be determinedwhether the improperly submitted theories formedthe sole basis for the jury's finding. Casteeladdresses only liability questions; it does notaddress whether its rule applies to broad-fromdamage questions that contain erroneouslysubmitted elements of damages. Texas courts ofappeals are divided on the issue. See Harris Co. v.Smith, 2001 WL 328164 (Tex. App.–Houston [1st

Dist.] Apr. 5 2001, pet. filed) (refusing to applyCasteel’s presumed harm standard when a trialcourt erroneously submits elements of loss ofearning capacity for one plaintiff and physicalimpairment for another where there was no evidenceto support submission of either element); but see SeeIron Mountain Bison Ranch, Inc. v. Easley TrailerMfg., Inc., 42 S.W.3d 149 (Tex. App.–Amarillo2000, no pet.) (applying Casteel analysis where thetrial court erroneously submitted lost profits as anelement of damages in its broad-form damagesquestion, and there was no evidence of lost profits);Wal-Mart Stores, Inc. v. Redding, 56 S.W.3d 141,153 (Tex. App.–Houston [14th Dist.] 2001, Rule53.7(f) motion filed) (applying Casteel where thetrial court erroneously submitted future medical care

as an element of damages, and there was noevidence of that element); see also Texas Industries,Inc. v. Vaughan, 919 S.W.2d 798, 804 (Tex.App.--Houston [14th Dist.] 1996, writ denied) (pre-Casteel, remanding the case on all damages becausethe jury charge did not segregate the elements ofdamage and require a finding as to each one, andone of the elements had no supporting evidence).See also discussion at Section I.B.7.

b. Damage Questions Must Relate toCause of Action.

When multiple causes of action are asserted,plaintiff should be careful to relate each cause ofaction to a particular damage question and to requestan instruction that the jury consider each damagequestion separately, without speculating as to theparty’s ultimate recovery. See Comment PJC 110.2.

The failure to relate damages questions to eachcause of action was fatal in Birchfield v. TexarkanaMem’l Hosp., 747 S.W.2d 361 (Tex. 1987).Birchfield was a medical malpractice action broughtby the parents of a blind premature infant againstthree physicians and the hospital. Plaintiffs allegednegligence against all of four defendants and aDTPA action against the hospital. The jury foundthat the physicians were negligent and that thehospital was negligent, grossly negligent and hadviolated the DTPA. The plaintiffs sought to recoverboth treble and exemplary damages awarded by thejury against the hospital.

The Texas Supreme Court held that plaintiffscould not recover both treble damages and punitivedamages because they only submitted a singledamage issue requesting compensation for thedamages proximately resulting from the occurrencein question. Id. at 367. The Court stated that, “Inthe absence of separate and distinct findings ofactual damages on both the acts of negligence andthe deceptive acts or practices, an award ofexemplary damages and statutory treble damageswould be necessarily predicated upon the samefindings of actual damages and would amount to adouble recovery of punitive damages.” Id. TheCourt thus denied the request for both exemplaryand treble damages, finding that such an award“would be necessarily predicated upon the samefindings of actual damages and would amount to a








21

double recovery of punitive damages.” Id.

On the other hand, in a case alleging that abank’s acts of altering and paying a checkconstituted both breach of contract and negligence,it was not error to submit a single causation questioninquiring whether the bank’s “conduct” causeddamages. Benjamin Franklin Sav. Ass’n v. Kotrla,751 S.W.2d 218, 222 (Tex. App.–Houston [14thDist.] 1988, no writ).

In addition, the defendant should also becareful to make proper objections for failure torelate specific damage questions to applicablecauses of action. See American Nat’l Petroleum Co.v. Transcontinental Gas Pipeline Corp., 798 S.W.2d274, (Tex. 1990). For example, in Aero Energy Inc.v. Circle C Drilling Company, 699 S.W.2d 821,(Tex. 1985), the defendant did not object to thebroad issue submission that allowed considerationof attorney fees for two separate causes. Becausethere was no objection to the failure of the trialcourt to segregate the fees between the claims, theparty waived the point. Id.

c. Is it Necessary to Submit SeparateQuestions on Special Damages?

Under the rules of broad-form submission, itshould not be necessary to submit a separatequestion on consequential damages. But in Odom v.Meraz, 810 S.W.2d 241, 244 (Tex. App.–El Paso1991), writ denied per curiam, 835 S.W.2d 626(Tex. 1992), the the El Paso Court of Appeals heldthat “consequential damages are classed as specialdamages and MUST BE PLEADED AND PROVEDSEPARATELY, THEREFORE NECESSITATINGSUBMISSION OF JURY QUESTIONSSEPARATELY. Id. at 244 (emphasis in original).In Odom, the plaintiff submitted a global questionon actual damages relating to his DTPA claiminstead of separately submitting a question onconsequential damages. Further, no limitinginstructions on damages were given by the trialcourt. Id. at 245. The Supreme Court reversed thejudgment of the trial court without either approvingor disapproving of the Court of Appeals’ dispositionof the DTPA damages. Odom v. Meraz, 810 S.W.2d241, 244 (Tex. App.–El Paso 1991), writ denied percuriam, 835 S.W.2d 626 (Tex. 1992).

Expressly disagreeing with Odom, the appellatecourt in Insurance Company of North America v.Morris, 928 S.W.2d 133, 151 (Tex. App.–Houston[14th Dist.] 1996), aff’d in part, rev’d on othergrounds, 981 S.W.2d 667 (Tex. 1998), rejected theappellant’s argument to impose a requirement forseparate submission of consequential or specialdamages. In the words of the court, “We insteadbelieve that such a practice is contrary to the broadform submission mandated by our rules ofprocedure.” Morris, 928 S.W.2d at 151, citing TEX.R. CIV. P. 277. Thus, submission of a single damagequestion accompanied by an instruction that “totalloss sustained” includes “economic loss, andconsequential losses, including reasonable expenses,damages for impairment of credit, and damages formental anguish,” with an additional instructiondefining mental anguish was not an abuse of the trialcourt’s discretion. Id. at 151-52; see also English v.Fischer, 649 S.W.2d 83, 90 (Tex. App.–CorpusChristi 1982), rev’d on other grounds, 660 S.W.2d521 (Tex. 1983) (finding no error in a generaldamage question that allowed a jury to awardconsequential damages on causes of actionsubmitted for fraud, breach of warranty and theDTPA).

Lost profits are recoverable in a breach ofcontract cause of action as an element ofconsequential damages. See Naegeli Transp. v. GulfElectroquip, Inc., 853 S.W.2d 737, 739 (Tex.App.–Houston [14th Dist.] 1993, no writ). If the trialcourt submits a question on lost profits, it might alsosubmit an instruction on the foreseeability of thelost profits. See Winkle Chevy-Olds-Pontiac v.Condon, 830 S.W.2d 740 (Tex.App.--Corpus Christi1992, writ dism'd). Lost profits are not recoverableas a matter of law and should not be submitted in adamage question if the evidence of lost profits isspeculative. It is questionable, however, whether itis necessary to submit an additional instruction onthe quality and amount of evidence necessary tosupport a lost profit award once the “no evidence”hurdle is overcome. See comment PJC 110.4.

Finally, if a trial court submits a single answerblank for damages, the court must ignore anymarginal notes made by the jury concerning eachdamage element. Thomas v. Oldham, 895 S.W.2d352, 359-60 (Tex. 1995).





















22

d. Is it Necessary to Separate Pastand Future Losses?

In Cavnar v. Quality Control Parking, Inc., 696S.W.2d 507, 555-56 (Tex. 1985), the TexasSupreme Court held that prejudgment interest couldnot be recovered on future damages. Accordingly, torecover prejudgment interest on accrued damagesunder Cavnar, the plaintiff has to segregate accrueddamages from future damages. Id. at 556; Yowell v.Piper Aircraft Corp., 703 S.W.2d 630, 636 (Tex.1986) (plaintiffs were not entitled to prejudgmentinterest on wrongful death claims because theyfailed to segregate past damages from future,unaccrued damages such as loss of inheritance);Benavidez, 726 S.W.2d at 24-25 (although juryawarded lump sum combining past and futuredamages, stipulation on past medical expenses andseparate finding on property damage sufficientlysegregated past and future damages to allowprejudgment interest on past damages); Loyd Elec.Co., Inc. v. Millett, 767 S.W.2d 476, 484 (Tex.App.--San Antonio 1989, no writ) (court correctlycalculated prejudgment interest on damagesaccruing before trial).

In C&H Nationwide, 903 S.W.2d at 324, theSupreme Court held that article 5069-1.05, § 6 [thepredecessor to Sections 304.101-304.108 of theTexas Finance Code] modified Cavnar in cases towhich the statute applied (i.e., cases involvingwrongful death claims, personal injury claims, andproperty damage claims) and allowed recovery ofprejudgment interest in such cases not only on pastdamages, but also on future damages included in thejudgment. The court reasoned that the phrase“amount of the judgment” in article 5069-1.05, §6(a) made no distinction between past and futuredamages and thus entitled the plaintiffs toprejudgment interest on the entire judgment. Id; seealso Jamar v. Patterson, 910 S.W.2d 118, 124 (Tex.App.--Houston [14th Dist.] 1995, writ denied); C&DRobotics, Inc., v. Mann, 47 S.W.3d 194, 201 (Tex.2001). Accordingly, in cases covered by theprejudgment interest statute, there is no need to askthe jury to segregate past from future damages inorder to preserve a claim for prejudgment interest onall damages awarded.

Based upon the foregoing, the PJC advises thatsegregation of past and future damages is required

in non-statutory cases and is not required instatutory cases. See PJC 110.20. HOWEVER, thatanalysis is not necessarily correct as the TexasSupreme Court in Johnson & Higgins of Texas, Inc.v. Kenneco Energy, Inc., 962 S.W.2d 597 (Tex.1998) extended the statutory prejudgment interestapproach (at least as to accrual date and rate andperhaps even more) to all claims for equitableprejudgment interest. If the Kenneco decision isread to mean that the entirety of the statutoryapproach is adopted in non-statutory cases, then the“no segregation rule” of the statute would applyacross the board.

Also note: a recent DTPA amendmentprohibits prejudgment interest on future damages inDTPA cases which accrued after August 31, 1995,or which were final after August 31, 1996,regardless of accrual date. TEX. BUS. & COM. CODE

§ 17.50(f)(1). Thus, segregation of past and futuredamages would be required in such cases.

5. Exemplary Damages.

a. The Exemplary Damages Statute

Before 1987, exemplary damages submissionswere governed by common law. In the era of tortreform, the Texas legislature added chapter 41 to theTexas Civil Practice and Remedies Code, whichgenerally applies to non-DTPA, Insurance Code,and workers’ compensation cases. Besides placinga cap on exemplary damages, id. §§ 41.008, thestatutory provisions contained in chapter 41 madeseveral changes and clarifications that affect theproper submission of exemplary damages questionsto the jury. Indeed, section 41.012 mandates thatthe jury be instructed with regard to the definitionand purposes of exemplary damages, §§ 41.001,.010, the harm the claimant must prove to be entitledto exemplary damages, TEX. CIV. PRAC. & REM.CODE ANN. § 41.003, and the factors it mustconsider in determining the amount of exemplarydamages. Id. §§ 41.011, 41.012.

After the statute was enacted, the supremecourt addressed the issues of bifurcation andsubmission of instructions on defendant’s net worth.In Lunsford v. Morris, 746 S.W.2d 471 (Tex. 1988),the supreme court held that a “defendant’s ability topay bears directly on the question of adequate







23

punishment and deterrence.” And in 1994, thesupreme court decided in Transportation Ins. Co. v.Moriel, 879 S.W.2d 10, 16 (Tex. 1994), that a trialcourt, if presented with a timely motion, shouldbifurcate the determination of the amount ofpunitive damages from the remaining issues and thatthe jury should consider evidence of a defendant'snet worth during the second phase of a bifurcatedtrial. See also TXO Prod. Corp. v. AllianceResources Corp., 509 U.S. 443, 462 & n.28 (1993)(approving of the use of wealth as a consideration indetermining the amount of punitive damages). Thelegislature codified Moriel (and made some otherchanges) by amending Chapter 41 effectiveSeptember 1, 1995.

Accordingly, the proper exemplary damagesquestion, instruction, and definition depends on thedate the cause of action accrued. For causes ofaction occuring before September 1, 1995,exemplary damages must be conditioned on anaffirmative finding on a question of grossnegligence (or another finding justifying the award),the “Exemplary damages” definition is slightlydifferent than the current definition, and there is norequirment that the jury consider net worth indetermining the amount of exemplary damages toaward. PJC 8.6A, 110.33, 110.34 Comment. Forthose causes of action arising after September 1,1995, exemplary damages must be conditioned onan affirmative finding on a question of malice orfraud, the “Exemplary damages” definition isdifferent, and the jury should consider thedefendant’s net worth in determining the amount ofexemplary damages. PJC 8.6B, 110.33, 110.34Comment.

b. Inclusion of the Kraus Factors (andOthers) in Jury InstructionsAccompanying Questions onExemplary Damages

In Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908,916 (Tex. 1981), the Supreme Court listed severalfactors to be considered by an appellate court inevaluating whether a jury award of exemplarydamages is excessive: (1) the nature of the wrong;(2) the character of the conduct; (3) the degree ofculpability of the wrongdoer; (4) the situation andsensibilities of the parties; and (5) the extent towhich such conduct offends a public sense of justice

and propriety. The Kraus factors formed the basisfor the instruction mandated in TEX. CIV. PRAC. &REM. CODE ANN. § 41.011, .012, and the 1995amendments required the additional instruction onthe defendant’s net worth. Therefore, it is clear that,at a minimum, the jury must consider the statutoryfactors in determining the amount of punitivedamages to award. But are any other factorsappropriate to submit?

Recently, in Owens-Corning Fiberglas Corp.v. Malone (a toxic tort case), the supreme court heldthat the jury should be able to consider mitigatingevidence about the defendant’s ability to paypunitive damages. See 972 S.W.2d 35, 40 (Tex.1998) (citing Wal-Mart Stores, Inc. v. Alexander,868 S.W.2d 322, 329 (Tex. 1993) (Gonzalez, J.,concurring)). Specifically, the court held that“evidence about the profitability of a defendant’smisconduct and about any settlement amounts forpunitive damages or prior punitive damages awardsthat the defendant has actually paid for the samecourse of conduct” is admissible during the secondphase of a bifurcated trial. Id. at 40-41. The courtrejected plaintiff’s argument that evidencemitigating punitive damages is a legal question,stating “we believe that the fact finder will betterperform its role as the community’s conscience indetermining the proper punitive damages award byconsidering such evidence.” Id. at 42. The courtcautioned, however, that it would be improper forthe jury to consider evidence of the actual dollaramounts paid by settlements or by judgments, thenumber of pending or anticipated claims filedagainst the defendant for the same conduct,insurance coverage, or unpaid or future anticipatedpunitive damages awards for the same conduct. Id.at 41. What effect, if any, this holding has upon thejury charge is unclear.

Besides the Kraus factors and the mitigatingfactors suggested in Owens-Corning, Texas courtshave considered the following additional factors inreviewing the propriety of exemplary damagesawards: (1) compensation for inconvenience andattorney’s fees,2 Hofer v. Lavender, 679 S.W.2d

2If attorney’s fees are sought underanother theory of recovery, however, they shouldnot be included in the “factors to consider”







24

470, 474 (Tex. 1984); King v. Acker, 725 S.W.2d750, 757 (Tex. App.–Houston [1st Dist.] 1987, nowrit); (2) the frequency of the wrongs committed,State Farm Mutual Automobile Ins. Co. v. Zubiate,808 S.W.2d 590, 604 (Tex. App.–El Paso 1991, writdenied); Moriel, 879 S.W.2d at 27, n.22; and (3)the size of the award needed to deter similar wrongsin the future. Zubiate, 808 S.W.2d at 604; Moriel,879 S.W.2d at 27, n.22; see also Comment to PJC8.6A.

c. BMW v. Gore Factors

Even if an assessment of punitive damages isnot deemed excessive under governing state law, itmay violate a party's substantive due process right toprotection from “grossly excessive” punitivedamages awards under the United StatesConstitution. As an ultimate check for exorbitancyof punitive damages, the United States SupremeCourt formulated a test for determining whetherexemplary damages are excessive. BMW of NorthAmerica, Inc. v. Gore, 517 U.S. 559, 568 (1996).When properly preserved, appellate courts mustanalyze three factors: (1) the degree ofreprehensibility of the wrongful conduct, (2) theratio of punitive to actual damages; and (3)sanctions imposed for comparable misconduct. Butthese factors should not be submitted to the jury inthe form of instructions. Rather, BMW’s analysis isone for the courts to apply after the jury determineshow much to award. See Owens-Corning, 972S.W.2d at 40.

Texas courts have generally found that theprocedural safeguards already in place protectagainst due process challenges. See TEX. CIV.PRAC. & REM. CODE §§ 41.013 (requiring court ofappeals articulation of relevant evidence whenaffirming (rather than just when reversing) a factualsufficiency challenge to a punitive damages award);Owens-Corning, 972 S.W.3d at 43 (holding that thebifurcation procedure and the requirement forcareful appellate review of punitive damages awardsprovide a substantial check on juries’ awards);General Chemical Corp. v. De La Lastra, 852S.W.2d 916, 922-25 (Tex. 1993) (declining to

address whether the punitive damage award wasunconstitutionally excessive because it was reducedby operation of the Texas statutory limit on punitivedamages).

d. Corporate Liability for ExemplaryDamages

Exemplary damages may only be recoveredagainst a corporation when it is clear that the actgiving rise to punitive damages was the act of “thecorporation itself.” See Hammerly Oaks, Inc. v.Edwards, 958 S.W.2d 387 (Tex.1997). Acts that aresolely attributable to agents or employees must bedistinguished from acts that are directly attributableto the corporation; respondeat superior liability isnot enough to hold a corporation liable in punitivedamages.

PJC 110.35 suggests that the followinginstruction be given to hold corporations liable forthe acts of their servants:

Exemplary damages can be assessedagainst [Don Davis] [ABC Corporation]as principal because of an act by an agent,but only if,

a. the principal authorized thedoing and the manner of the act,or

b. the agent was unfit and theprincipal was reckless inemploying him, or

c. the agent was employed in amanagerial capacity and wasacting in the scope ofemployment, or

d. the employer or a manager ofthe employer’s ratified orapproved the act.

TEXAS PATTERN JURY CHARGES 110.35. Thisinstruction is based on the RESTATEMENT (FIRST) OF

TORTS § 909 (1938), which the Texas SupremeCourt embraced in King v. McGuff, 234 S.W.2d 403,405 (1950) and approved of in Hammerly Oaks, 958S.W.2d at 391, Purvis v. Prattco, Inc., 595 S.W.2d103, 104 (Tex.1980) (ratification and approval), andFisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d627, 630 (Tex.1967). instruction because of the potential of a double

recovery. See PJC 8.6A Comment at 109 (2000).





















25

A corporation can also be held liable if itcommits gross negligence through the actions orinactions of a vice principle. See Mobil Oil Corp. v.Ellender, 968 S.W.2d 917, 922 (Tex. 1988). “Viceprincipals” include: (a) corporate officers; (b) thosewho have authority to employ, direct, and dischargeservants of the master; (c) those engaged in theperformance of non-delegable or absolute duties ofthe master; and (d) those to whom the master hasconfided the management of the whole or adepartment or division of the business. See id.; seealso Bradford v. Vento, 997 S.W.2d 713, 740-41(Tex. App.–Corpus Christi 1999, no pet.) (holdingthat manager of a mall was a “vice principal” forpurposes of corporate liability for punitivedamages); Missouri Pacific R. Co. v. Lemon, 861S.W.2d 501, 521 (Tex. App.–Houston [14th Dist.]1993, writ dism’d by agr.) (finding that railroadcrew members were “vice principals” because theywere performing non-delegable duties).

The question and accompanying instructionsfor corporate liability for punitive damages belongsin the liability phase of the trial. It is reversibleerror to instruct the jury concerning the master’sliability for exemplary damages during the secondphase of the trial because it deprives plaintiff of itsright to have a bifurcated trial. See Minyard FoodStores, Inc. v. Goodman, 50 S.W.3d 131, 142 (Tex.App.–Fort Worth 2001, pet. filed).

The burden of requesting corporate liabilityelements for punitives instruction seems to lie withthe plaintiff. See Missouri Pacific R. Co. v. Lemon,861 S.W.2d 501, 517-18 (Tex. App. –Houston [14th

Dist.] 1993, writ dism’d by agr.). Moreover,because each of the grounds listed in PJC 110.35and the vice principal definition are stated in thealternative, a particular ground should not besubmitted if there is no evidence of it. However, asthe plaintiffs learned in Hammerly Oaks,practitioners should be weary before omittingparticular grounds from the instructions.

In Hammerly Oaks, the court instructed the jurythat “in order for Hammerly Oaks, Inc. to be grosslynegligent, you must find that Rose Britton, FrankSmotek, Marilyn Montgomery, Roman Gonzales,and/or Gabriel Gonzalez were acting in theircapacities as vice-principal of Hammerly Oaks,Inc.” Vice principal was defined to include those

with hiring power and managers. The vice principalinstruction did not include an instruction that a viceprincipal includes a person engaged in theperformance of a nondelegable duty, nor did theplaintiff object. See id. at 393. On appeal, the courtheld that punitive damages were improperlyawarded to the corporation because one employeelisted (although a manager) did not commit thecomplained-of acts, other listed employees did nothave the authority to hire, and plaintiff waived anyargument that another employee was a vice principalbased on his performance or nonperformance of anondelegable duty by failing to object or request adefinition of “vice principal” that included theconcept of nondelegable duties. See id. at 393.

6. Broad Submissions: Do TheySubmit Questions of Law?

The Supreme Court’s decision in TexasDepartment of Human Resources v. E.B., 802S.W.2d 647 (Tex. 1990), implicitly answersconcerns that broad form submissions allow juriesto decide questions of law rather than controllingfacts that determine the application of law. Indeed,this family law case confirms that the court was notconcerned that the jury applied the facts to the lawin determining if the parent-child relationshipshould be terminated. E.B., 802 S.W.2d at 649.This apparent lack of concern is consistent with theCourt’s opinions in Island Recreational, 710S.W.2d at 551 and Castleberry v. Branscum, 721S.W.2d 270 (Tex. 1987). Recall the single issuesubmitted in Island Recreational stated, “Do youfind from a preponderance of the evidence that[Island] performed their obligations under theCommitment Letter in question.” 710 S.W.2d at553. The single issue in Castleberry stated, “Doyou find . . . that Texas Transfer, Inc. was the alterego of the defendant?” 721 S.W.2d at 275.

In any event, the line dividing the roles ofjudges and juries is presently unclear. In H.E. ButtGrocery Co. v. Bilotto, 985 S.W.2d 22, 25 (Tex.1998), the plurality opinion of the Supreme Courtwas highlighted by the spirited concurrence offormer Justice Gonzalez, who argued that the timehad come to directly advise juries of the effect oftheir answers. In addition, Justice Hecht’s dissentargued that juries should not be permitted to applyor ignore the law by deciding which party should














26

win. Id. at 28 (Hecht, J., dissenting).

7. Multi-theory Submissions AfterCasteel.

In Crown Life Ins. Co. v. Casteel, 22 S.W.3d378 (Tex. 2000), the Texas Supreme Court held thatwhen both valid and invalid theories of liabilitywere included in a single broad-form question, thusmaking it impossible to determine which the jurybased its finding on, the error was harmful. See id.at 387-90. The charge in Casteel included a singleliability question that could have been based on anyof thirteen independent grounds– the first five ofwhich were taken from the DTPA’s section 17.46(b)“laundry list.” See id. at 387. The plaintiff, CrownLife, did not have the requisite consumer status forfour of those “laundry list” grounds. See id. at 389.The liability question called for a single answer,which the jury answered affirmatively. See id. TheCourt ruled that, as a result, the jury could havebased its affirmative answer solely on one or morethe erroneously submitted theories. Id. at 387-88.The court concluded that “when a trial court submitsa single broad-form liability question incorporatingmultiple theories of liability, the error is harmfuland a new trial is required when the appellate courtcannot determine whether the jury based its verdicton an improperly submitted invalid theory.” Id. at388.3

Most courts of appeals apply Casteel onlywhen the error leaves the court unsure whether thejury based its finding on a valid legal theory. See,e.g., Colonial County Mut. Ins. Co. v. Valdez, 30S.W.3d 514, 518-19 (Tex. App.–Corpus Christi2000, no pet.); Stevenson, 27 S.W.3d at 202(although not citing Casteel, holding that instructingjury that it could terminate parental rights undereither of two grounds, one of which was improperlysubmitted, caused harmful error when court couldnot determine whether jury relied on proper theory);Kansas City Southern Ry. Co. v. Stokes, 20 S.W.3d45, 51 (Tex. App.–Texarkana 2000, no pet.);Custom Residential Paint Contracting, Inc. v. Klein,2001 WL 1318420, *2 (Tex. App.– Dallas 2001, no

pet. h.). However, in recent cases, the Courts ofAppeal have begun exploring the limits of Casteel.

a. The Limits of Casteel

At least one court has held that Casteel appliesto affirmative defenses as well as to theories ofliability. See Pantaxe v. Welton, 1999 WL 673448(Tex. App.–Dallas 1999, no pet.). In that case, onebroad form excuse question, with a single answer,allowed the jury to base its answer properly onequitable estoppel, or improperly on waiver. See id.at *6. The court ruled that, because it could notdetermine which theory the jury based its verdict on,the inclusion of the improper defense was reversibleerror. See id. (“We can see no reason why[Casteel] is not applicable to affirmative defenses aswell as to theories of liability”).

Courts of appeals have, so far, refused toextend Casteel to cases where multiple liabilityquestions, some of which were invalid, were tied tosingle damage question.4 See Z.A.O., Inc. v.Yarbrough Drive Center Joint Venture, 50 S.W.3d531 (Tex. App.–El Paso 2001, no pet.) (even thoughseveral of questions on different theories of liabilityfailed, remaining question also tied to same damagequestion did not leave the court wondering whetherjury based its award on valid theory); ColonialCounty Mut. Ins. Co. v. Valdez, 30 S.W.3d 514, 518-19 (Tex. App.–Corpus Christi 2000, no pet.)

3If, on the other hand, other findings cansupport the jury’s verdict or the court’s judgment,the error may be harmless.

4Prior to Casteel, courts generally uphelda single damage finding even if one or more of themultiple liability findings on which it waspredicated failed. See Federal Express Corp. v.Dutschmann, 846 S.W.2d 282 (Tex. 1993) (actualdamages based on contract and statutory claimwould stand upon reversal of contract recoveryand affirmance of statutory claim); AutomobileIns. Co. v. Davila, 805 S.W.2d 897, 903 (Tex.App.--Corpus Christi 1991, writ denied) (singledamage question stands if any one liabilityquestion can support it). But cf Putter v.Anderson, 601 S.W.2d 73, 78 (Tex. Civ. App.--Dallas 1980, writ ref d n.r.e.) (pre-broad-formmandate case holding that failure of two of threelibel counts resulted in remand when plaintiffsecured only one unapportioned damagequestion).















27

(Casteel error in one question to which singledamage question tied rendered harmless in light ofsurvival of other liability question tied to samedamage question).

The Texas Supreme Court has yet to say if theholding of Casteel applies to the failure of part of abroad-form question on evidentiary grounds. S eeCity of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 n.1(Tex. 2000) (“The City has not argued that it wouldbe entitled to a new trial if the evidence was legallyinsufficient to support one or more of these theoriesof liability. Therefore, whether our decision in[Casteel], should be extended to cases in whichthere is no evidence to support one or more theoriesof liability within a broad form submission is not aquestion before us.”)

In Excel Corp. v. Apodaca, 51 S.W.3d 686(Tex. App.– Amarillo 2001, pet. filed), the court ofappeals held that Casteel did not require separateliability questions for each injury suffered by theplaintiff. The defendant, Excel, had argued that thedamage issues submitted to the jury were global anddid not specify the damages that were beingawarded for any specific injury. The court,however, held that the wording of the liability anddamage questions asked the jury to “award damagesonly for the injuries they found were caused byExcel. There is nothing to indicate that the wordingof this question resulted in confusion for the jury.”Id. at 700.

Courts disagree whether Casteel applies tolump sum damage questions where one measure ofdamage is invalid.5 One court of appeals found

Casteel applicable to a damage question thatsubmitted two measures of damage, one of whichhad no support in the evidence. See Iron MountainBison Ranch, Inc. v. Easley Trailer Mfg., Inc., 42S.W.3d 149 (Tex. App.–Amarillo 2000, no pet.).The court reasoned that

It is improper [under Casteel] to allow adefendant to be held liable without ajudicial determination that a factfinderactually found that the defendant shouldbe held liable on proper, legal grounds. Itis no less improper to allow assessment ofdamages against a defendant without ajudicial determination that a factfinderactually found an amount assessed asdamages on proper, legal grounds.

Id. at 156-57 (internal citation omitted). However,another court of appeals came to the oppositeconclusion. See Harris County v. Smith, ___ S.W.3d ___, 2001 WL 328164 (Tex. App.–Houston [1st

Dist.] 2001, pet. filed). That court explicitly refusedto extend the rule in Casteel to broad-form damagesquestion, instead applying traditional harm analysis,for three reasons. Firstly, the court reasoned thatCasteel is primarily concerned with the “key issue”of liability, and was intended to “preclude[] even thepossibility that a party might be found liable on acompletely invalid theory.” A damage question,however, could not present such, possiblyconstitutional, issues because the “key, primary, andultimate issue of liability” was already answered.Secondly, the court reasoned that challenging thevalidity of only one of the elements of damagewould be the equivalent of challenging thesufficiency of the evidence for only one element ofdamage– when, under Thomas v. Oldham, 895S.W.2d 352, 354, 359 (Tex. 1995), the evidence

5Prior to Casteel, courts regularly uphelddamages question with a broad, lump-sum answer,if the evidence supported that amount for any sub-part (or element) of the damages. See Thomas v.Oldham, 895 S.W.2d 352, 359-60 (Tex.1995);Provident Am. Ins. Co. v. Castaneda, 914S.W.2d 273, 276-77 (Tex. App.--El Paso 1996)(“so long as the aggregate evidence for allelements of damage supports the entire award,[court] must uphold the verdict”), rev’d on othergrounds, 988 S.W.2d 189 (Tex. 1998); Dodge v.Watts, 876 S.W.2d 542, 545 (Tex. App.--Amarillo1994, no writ) (evidence of pain, mental anguish,

and other elements supported aggregate award);Baylor Medical Plaza Servs. Corp. v. Kidd, 834S.W.2d 69, 79 (Tex. App.--Texarkana 1992, writdenied) (mental anguish could support finding byjury even in absence of evidence of otherelements); See also Wal-Mart Stores, Inc. v.Garcia, 974 S.W.2d 83, 87-88 (Tex. App.–SanAntonio 1998, no pet.) (without attack ofsufficiency of evidence as to entire amount, nopoint raised for review).
















28

must be considered as a whole. The court held thata party “should not be permitted to accomplish, bychallenging the jury charge, what it cannotaccomplish by challenging the legal sufficiency ofthe evidence.” The court added that “[i]n neithercase should we presume error based on thepossibility of error.” Thirdly, the court adopted thereasoning of Professor Dorsaneo, who was alsorelied upon, in part, by the Texas Supreme Court inCasteel, that “‘there is a principled and sensiblebasis for concluding there is no reversible error’when it is reasonable to presume that the juryawarded damages for elements that had support inthe evidence, rather than those that lackedevidentiary support” (citing William V. Dorsaneo,Broad-Form Submission of Jury Questions and theStandard of Review, 46 SMU L. REV. 601, 630(1992)). The court reasoned that this approachrepresented the “well-settled” rule of harmlesserror. See also dicussion at Section I.B.4.a.

b. Practical Concerns.

Whether the form of the broad form questioncreates a risk of reversal depends upon how manytheories of liability and defense a single questioncombines, how the jury answered the question, andwhat part of the question fails on what grounds onappeal. For example, except perhaps for omissionof a theory of liability, the risk of reversal (orharmful error) generally arises with a question thatsubmits multiple liability or defensive theories in asingle question only when the jury returns anaffirmative finding to any question that containsmultiple liability or defensive theories. When oneof the multiple theories in a single question fails, areviewing court cannot determine on what part ofthe question the jury relied to return an affirmativefinding allowing recovery (liability) or on what partthe jury relied to disallow recovery (defenses). Onthe other hand, a negative finding to those samequestions would not have the same effect. In thatsituation, the jury relied upon none of the theories.The form of the question itself caused no error; noquestion exists as to which part of multi-theoryquestion the jury relied upon to reach its finding.

And practical considerations, or matters ofstrategy, may dictate the requested form ofsubmission. The variations for a multi-theory caseare too numerous to outline. Indeed, thecombinations will vary depending upon, among

other things, (1) how many plaintiffs and defendantsthe charge will submit,6 (2) how many theories ofliability and/or defense the charge will submit, (3)the strengths and weaknesses of a case—onevidentiary, legal and jury appeal grounds, (4) whatrelief or combinations of relief a party will seek information of the judgment,7 and (5) the risk ofreversal that a party can tolerate to achieve a“winning” verdict. These various influences willaffect the ultimate submission choices.8

But you cannot wait to see what the juryanswers to raise your objection on the effect of theform of the question or the underlying reasons itwill fail. Instead, assuming you decide afterconsideration of strategic points to raise Casteel, the“broad form” error must have been preserved. See

6Joint and several liability (or severalliability only) for actual or punitive damages alsopresents an array of issues in submission of amulti-party charge. Those issues are beyond thescope of this paper.

7Some damage-related issues to considerin how broadly a court can combine theoriesinclude (1) whether claims have differentmeasures of damages, (2) whether a party seekstort based damages for recovery of punitivedamages, (3) whether a party can seek bothpunitive and trebled damages, (4) whetherattorneys’ fees are at issue on a particular claim,and (5) the type of relief sought for variousclaims or conduct (e.g., forfeiture of differentproperty, etc.).

8For example, a plaintiff might prefer thatthe trial court not submit multiple defenses inseparate questions because (1) the jury receivesmore than one opportunity to thwart the plaintiff’srecovery, (2) the opportunity for multipledefensive answers might create an overallperception against liability, (3) the possibility ofconflicts increases with the number of questionssubmitted, and (4) a defendant can more easilychallenge the evidentiary support of the jury'sfindings. On the other hand, if the jury answers amulti-theory question adverse to the plaintiff, theplaintiff will face a difficult task in attacking thejury's finding.


29

Samedan Oil Corp. v. Intrastate Gas Gathering,Inc., 2001 WL 710609 (Tex. App.–Tyler, no pet. h.)(any error from multiple liability/single damagesubmission waived when no objection made todamage question for predication on multipletheories); Molina v. Moore, 33 S.W.3d 323, 328(Tex. App.–Amarillo 2000, no pet.) (even if Casteelextended to require separate answers to elements ofdamage, party waived error by failing to object tothe form). But cf. Iron Mountain, 42 S.W.3d at156-57 (despite lack of objection on broad formformat, court found objection as to lack ofevidentiary support sufficient to preserve Casteelerror).9

II. HANDLING THE INFORMAL CHARGECONFERENCE.

A. On the Record or Off?

Hard to say. Some judges will make it clearthat they do not want a record and, if so, it can bedifficulat to procure a record. However, if you wantto rely upon rulings made during the informalconference for appellate purposes, then obviouslyyou need to request a record. But be aware that therecord may ultimately hurt as well as help yourcause later in the proceedings.

B. Are You Preserving Error?

Certainly, the general rule is that the informalcharge conference does not preserve charge error.However, under State Dept. of Highways & PublicTransp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992),practitioners are given some leeway in referring toall aspects of the charge process in arguingpreservation of charge error. See discussion atSection II.C.7.

III. Preserving Error at the Formal ChargeConference.

Requests and objections are notinterchangeable methods of preserving charge error.The Texas Rules of Civil Procedure set forth these,seemingly simple, rules of preservation. In order topreserve error, a party must:

• Object to preserve complaints aboutquestions, instructions or definitionsactually submitted in the charge.

• Request to preserve complaints about thecourt’s failure to submit an instruction ordefinition.

• Request to preserve complaints about thecourt’s failure to submit a question forwhich you have the burden.

• Object to preserve complaints about thecourt’s failure to submit a question forwhich your opponent has the burden.

• Remain silent, and enjoy, if your opponentfails to submit an entire cause of action, oraffirmative defense, for which it has theburden.

See TEX. R. CIV. P. 274, 278, 279; Lyles v. TEIA,405 S.W.2d 725, 727 (Tex. Civ. App.–Waco 1966,writ ref’d n.r.e.) (explaining requirements of rules).Some recent cases attempt to apply these principlesin a broad-form context. See Quantum Chem. Corp.v. Toennies, 47 S.W.3d 473, 481 (Tex. 2001)(holding that “[i]t is the defendant's burden to pleadand request instructions on an affirmative defense”);Dallas Market Ctr. Dev. Co. v. Liedeker, 958S.W.2d 382, 384 (Tex. 1997) (holding that anobjection was sufficient to preserve error as to adefective instruction), overruled on other grounds,Torrington Co. v. Stutzman, 46 S.W.3d 829, 840 n.9(Tex. 2000); Aboud v. Schlichtemeier, 6 S.W.3d742, 750 (Tex. App.–Corpus Christi 1999, pet.denied) (noting that a party’s failure to object to anallegedly defective definition would waive anyerror).

Some courts, however, have held that the Rulesrequire that in certain situations a party must both

9Moreover, as Casteel recognized, theexistence of one broad form error does notnecessarily result in reversal. For example, otherfindings may support the judgment. See Valdez,30 S.W.3d at 518-19 (although DTPA questiondefectively included improper theories and createdharm under Casteel, Insurance Code question tiedto same damage question supported judgment andrendered DTPA error harmless).












30

request and object to preserve error concerningomitted material. In other words, these courts haveheld that the Rule 278 requirement that a properrequest is necessary to preserve error as to omittedmaterial, is in addition to the Rule 274 requirementfor proper objections. See, e.g., Jim Howe Homes,Inc. v. Rogers, 818 S.W.2d 901, 903 (Tex. App.–Austin 1991, no writ) (party who would benefitfrom addition of limiting instruction to damagequestion must object to deficiency as submitted andrequest limiting instruction); Wright Way Constr.Co. v. Harlingen Mall Co., 799 S.W.2d 415, 418(Tex. App.–Corpus Christi 1990, writ denied) (partywho requests question, definition or instruction onwhich that party relies must also object); TexasCommerce Bank Reagan v. Lebco Constructors,Inc., 865 S.W.2d 68 (Tex. App.–Corpus Christi1993, writ denied) (holding that, when the trial courtfailed to include instructions on the proper measureof damages, the complaining party had a “burdenboth to object to the charge and to tender suchinstructions in substantially correct form”); NationalFire Ins. v. Valero Energy, 777 S.W.2d 501, 508(Tex. App.--Corpus Christi 1989, writ denied);Texas Cookie Co. v. Hendricks & Peralta, Inc., 747S.W.2d 873, 878 (Tex. App.–Corpus Christi 1988,writ denied) (saying that “where the court has failedto include a limiting instruction, it is thecomplaining party’s responsibility both to object tothe charge and to tender written instructions on theproper measure of damages in substantially correctform”).

In Howe, for example, the plaintiff submittedthe following damage question: “What sum ofmoney, if any, does Jim Howe Homes, Inc. owe JodiRogers?” Howe, 818 S.W.2d at 902. The defendanttimely objected that the plaintiff’s damage questionprovided insufficient guidance for the jury, and didnot give the jury “any definition of what they are toconsider in determining what sum of money shouldbe awarded in the event they reach that question.”Id. The Austin Court of Appeals noted that, in mostinstances, an objection would have been all thatwas required to preserve error concerning anallegedly faulty question. See id. at 903. However,with the change to broad form questions mandatedby Rule 277, the Austin Court reasoned that “theparty who stands to benefit from the limitinginstruction now has the burden of requesting such aninstruction” as well as objecting to the deficiencies

of the question submitted. Howe, 818 S.W.2d at903.

Those courts generally rely on, or combine,different parts of Rule 274, which provides that“[a]ny complaint as to a question, definition, orinstruction, on account of any defect, omission, orfault in pleading, is waived unless specificallyincluded in the objections;” and Rule 278, whichrequires a party relying on a question to submit arequest. See, e.g., Howe, 818 S.W.2d at 903; WrightWay, 799 S.W.2d at 419 (both citing to TEX. R. CIV.P. 274, 278). Moreover, when a party will benefitfrom a question, instruction or definition, courtswant the relying or benefitting party to make thetrial court aware of the complaint by an articulatedobjection to avoid building error in the record withunexplained requests. See Wright Way, 799 S.W.2dat 419.

Consequently, the prudent practice when thecourt fails to submit desired material, unless thematerial is a question relied on by the opposingparty, is to both object to the omission and submita proper request for the material.

A. Rules About Requests.

1. Make Requests Separate fromObjections.

“A request by either party for any questions,definitions, or instructions shall be made separateand apart from such party’s objections to the court’scharge.” TEX. R. CIV. P. 273; see Woods v. CraneCarrier Co., 693 S.W.2d 379-80 (Tex. 1985)(request dictated into record during objections didnot preserve complaint); see also Templeton v.Unigard, 550 S.W.2d 267, 269 (Tex. 1976) (thefailure to submit requests separately from objectionsmay waive any right to appeal the trial court'srefusal to submit the requested material). This ruleonly requires that the written request be “plainlyseparate” from the oral objection. Alaniz, 907S.W.2d at 451; Smith-Hamm, Inc. v. EquipmentConnection, 946 S.W.2d 458, 464 (Tex.App.–Houston[14th Dist] 1997, no writ). However,as a practical matter, “to expect a judge, afterhearing oral and lengthy requests just once, to weightheir merits for inclusion in a charge ignoresrealities.” Woods v. Crane Carrier Co., Inc., 693















31

S.W.2d 377 (Tex. 1985).

2. Tendered to the Court in Writing.

Because the rules provide that dictating to thecourt reporter in the presence of the court andopposing counsel is sufficient to register anobjection, it is a common mistake to assume that,likewise, a request can be dictated to the courtreporter. See TEX. R. CIV. P. 272, 273. Allrequests, however, must be tendered to the court inwriting. See TEX. R. CIV. P. 273, 278; James v. Hill,753 S.W.2d 839, 840 (Tex. 1988); Woods, 693S.W.2d at 379-80 (request dictated into record didnot preserve complaint).

3. Substantially Correct Wording.

All written requests must be tendered to thetrial court in substantially correct wording. SeeTEX. R. CIV. P. 278. Substantially correct has beendefined as follows:

Substantially correct . . . does not meanthat it must be absolutely correct, nor doesit mean one that is merely sufficient tocall the matter to the attention of the courtwill suffice. It means one that insubstance and in the main is correct, andthat is not affirmatively incorrect.

Palencio v. Allied Indus. Int’l, Inc., 724 S.W.2d 20,21 (Tex. 1987) (quoting Modica v. Howard, 161S.W.2d 1093, 1094 (Tex. Civ. App.–Beaumont1942, no writ)). For example, in a case involvingtortious interference with contract, a requestedinstruction that "interference with contractualrelations is privileged where it results from theexercise of a party's own rights or where the partypossesses an equal or superior interest to that of theplaintiff in the subject matter"10 was found to besubstantially correct even though it did not includeda requirement “that the exercise of one's own rightsmust be bona fide.” Southwestern Bell v. JohnCarlo Texas, 843 S.W.2d 470, 472 (Tex. 1992).

If the requested question, instruction, ordefinition is affirmatively incorrect, courts oftenfind that any error was waived. See Adams v. ValleyFed. Credit Union, 848 S.W.2d 182 (Tex.App.–Corpus Christi 1992, writ denied); Saenz v.David & David Constr. Co., 2001 WL 576603 (Tex.App.–San Antonio 2001, no pet.). “Questions,instructions, and definitions are not in substantiallycorrect wording unless they state the law accurately,properly place the burden of proof, avoid commentby the court, and generally meet the otherrequirements for proper broadform questions or forproper instructions and definitions” WILLIAM V.DORSANEO, III ET AL., TEXAS LITIGATION GUIDE:TRIAL PROCEDURE § 122.03 (3)(b) (2001) (emphasisadded). In Placencio, for example, the TexasSupreme Court ruled that a tendered issue wasaffirmatively incorrect because it assumed the truthof material controverted facts and would haveconstituted a comment on the weight of theevidence. See Palencio, 724 S.W.2d at 21. Thecourt went on to note that, had the issue includedconditioning language suggested by the TexasPattern Jury Charges, it would have beensubstantially correct.11 See id. at 22. Similarly, the

10The court does not give the instruction’sprecise wording, noting instead that it “tracked”this language. See Southwestern Bell, 843 S.W.2dat 472.

11This approach appears to have someinconsistency, i.e., if the problem is a missinglimiting instruction, then only a request should benecessary. However, the problem can also be seenas a problem with the question– it is incomplete,in a way, without the proper instructions. This isbest illustrated by Professor Dorsaneo, in anarticle stressing the need to substantially revise therules governing the trial court's charge to the jury,when he writes that

With the adoption of broad-form submission, it isvery common for a definition or an instruction toperform the function of submitting the componentelements of claims and defenses inquired aboutmore generally in broad-form jury questions. Accordingly, under broad-form submissionpractice, it makes sense for a party to object to aquestion because the charge does not include anappropriate accompanying instruction.

* * * Of course,[cases such as Howe] show that theobjection/request methodology and itsaccoutrements are no longer sensible because the

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=KY_caselaw&volume=31&edition=S.W.2d&page=377&id=24707_01

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=KY_caselaw&volume=31&edition=S.W.2d&page=377&id=24707_01









32

court in Adams v. Valley Fed. Credit Union, 848S.W.2d 182 (Tex. App.–Corpus Christi 1992, writdenied) found a requested instruction to beaffirmatively incorrect primarily because did notadequately inform the jury of the shifting burden ofproof.12 The instruction sought to have the trialcourt instruct a verdict that the plaintiff had made aprima facie case of age discrimination when,because the facts supporting that conclusion hadbeen contested, she had not. See id. at 188. Arequest will not be substantially correct if it is toovague or contains a term that requires a definitionbut the party fails to tender the definition. See Perezv. Weingarten Realty Investors, 881 S.W.2d 490,493 (Tex. App.–San Antonio 1994, writ denied).

At least one court, relying on Payne, has givenmore latitude as to how correct a request must be.See Matthiessen v. Schaefer, 900 S.W.2d 792, 797(Tex. App.--San Antonio 1995, pet denied) (holdingthat the requested question, though incorrect, wasnonetheless sufficient because it made the trial courtaware of the complaint and suggested languagenecessary to correct the question that wassubmitted).

Finally, determining whether a requested, butrefused, question is substantially correct should becontrasted with deciding whether a submitted chargecontained harmful error. The appellate courts, on theground that the requested material was not wordedsubstantially correctly, have often left standing atrial court's refusal to submit the material. If the trial

court submits material, on the other hand, theappellate courts must apply the harmless error rule,again most frequently with the result that the trialcourt action is left standing. Compare Placencio v.Allied Indus. Intern., Inc., 724 S.W.2d 20, 21-22(Tex. 1987) with Alvarez v. Missouri-Kansas-TexasR. Co., 683 S.W.2d 375, 378 (Tex. 1984).

4. Not Obscured or Concealed withMinute Differentiations andNumerous Unnecessary Requests.

“When the complaining party's . . . requestedquestion, definition, or instruction is, in the opinionof the appellate court, obscured or concealed by . .. minute differentiations or numerous unnecessaryrequests, such . . . request shall be untenable.” TEX.R. CIV. P. 274. In other words, do not hide yourcomplaints. Make sure the record is clear that thecourt knew of your complaints, but refused tomodify the charge to accommodate them (which isanother reason to object and request). In fact, themost prudent practice is to submit a completecharge– with each requested instruction or questionon a separate page that can be tendered to the courtfor inclusion or refusal.

A trial judge is not required to search throughthe requested issues and submit those which areproper and refuse those which are improper. SeeDemler v. Demler, 836 S.W.2d 696, 698 (Tex.App.–Dallas 1992, no writ); see also Gutierrez v.County of Zapata, 951 S.W.2d 831, 843 n.14 (Tex.App.--San Antonio 1997, no writ). If one or more ofthe requested matters in a so-called ``en masse''submission is improper, the court may refuse all ofthem. See Crisp v. Southwest Bancshares LeasingCo., 586 S.W.2d 610, 616 (Tex. Civ. App.–Amarillo1979, ref. n.r.e.); Metal Structures Corp. v. PlainsTextiles, Inc., 470 S.W.2d 93, 100-101 (Tex. Civ.App.–Amarillo 1971, ref. n.r.e.). Some casessuggest that an entire ``en masse'' request mayproperly be rejected even if individual requests are,in fact, proper. See Armellini Exp. Lines of Floridav. Ansley, 605 S.W.2d 297, 307 (Tex. Civ. App.--Corpus Christi 1980, ref. n.r.e.); Hoover v. Barker,507 S.W.2d 299 (Tex. Civ. App.--Austin 1974, ref.n.r.e.)(“An examination of the transcript shows thatappellant tendered fifty-four requested special issuesEn masse, all of which were refused by the trialcourt. When issues are tendered in such manner, the

required behavior is dictated as a matter of formrather than by a principled concern for therespective roles of questions, accompanyingdefinitions and instructions.

William V. Dorsaneo, III, Revision andRecodification of the Texas Rules of Civil ProcedureConcerning the Jury Charge, 41 S. Tex. L. Rev.675, 693-94 (2000).

12The instruction also contained a factualerror– the age of the plaintiff’s replacement. However the court found the error in the burden ofproof to be the primary reason the instruction wasaffirmatively incorrect. See Adams, 848 S.W.2d at187.










http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=AR_caselaw&volume=470&edition=S.W.2d&page=93&id=24707_01




33

trial court is not required to search through thetendered issues and submit those which are properand refuse those which are improper.”).

Requests may be obscured by the so called“stock” objections– i.e., i) no pleading to supportsubmission of the issue; ii) no evidence to supportsubmission of the issue; iii) insufficient evidence tosupport submission of the issue; and iv) that anaffirmative finding would be against the greatweight and preponderance of the evidence. Theseobjections are often made, not based on the factsand circumstances of an individual case, but as amatter of course. This adds unnecessary volume.The authors of the PJC went out of their way todissuade practicing attorneys from continuing thisneedless and erroneous practice. Only the first, “nopleading,” must be made to preserve error– that is,it will be considered waived if it is not made prior tosubmission of the charge to the jury.13

Relying upon Payne’s preservation test, thesupreme court held that even a pre-trial submissionof a complete charge did not necessarily “obscure”a request but could instead suffice to preserve error.Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450, 451(Tex. 1995). The court, however, had submittedpart of the proposed charge, which the court saidmade clear the court was aware of the plaintiff’srequest for a finding on future lost profits. Theplaintiff also objected to the omission. Id. Cf.Riddick v. Quail Harbor Condominium Ass’n, 7S.W.3d 663, 673 (Tex. App.–Houston[14th Dist.]1999, no pet.) (submitting entire charge notsufficient to preserve error under Alaniz or Liedekerwhen record did not show court ruled in writing,orally, or was otherwise brought the proposedrequests to the trial court’s attention).

5. Signed as Refused.

To preserve error, a judge should endorserequests as "Refused" or "Modified as follows:” andsign the same officially. TEX. R. CIV. P. 276. Somecourts have held that endorsement is the exclusivemeans by which to preserve error based on a refusalof the request. See, e.g., Southwest Airlines Co. v.Jaeger, 867 S.W.2d 824, 832 (Tex. App.–El Paso1993, writ denied). The supreme court, though,held that endorsement is not the only means ofpreserving error for refusing a request. DallasMarket Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382,386-87 (Tex. 1997) (finding that trial court’sstatement on the record that he would note hisrefusal on the requests preserved error despite thefact that the court never endorsed and signed therequests). Again, another reason to object andrequest—even if the requests somehow end upunsigned, you may still have the error preserved onthe record.

B. Rules about Objections.

1. Object in Writing or on theRecord.

“[O]bjections shall in every instance bepresented to the court in writing, or be dictated tothe court reporter in the presence of the court andopposing counsel, before the charge is read to thejury.” TEX. R. CIV. P. 272. Otherwise, anyobjection is waived. See Samedan Oil Corp. v.Intrastate Gas Gathering, Inc., 2001 WL 1153443*11 (Tex. App.–Tyler, no pet. h.) (rule 53.7 (f)motion filed) (not yet published); Lochinvar Corp.v. Meyers, 930 S.W.2d 182, 187 (Tex. App.—Dallas1996, no writ).

One caveat for the careful practitioner. At leastone court has implied that the parties and the courtmay agree to “relax the rules of civil procedure”with respect to the making of objections andtendering of requests. See Dayton Hudson Corp. v.Altus, 715 S.W.2d 670 (Tex. App.–Houston [1stDist.] 1986, writ ref’d n.r.e.), cert. dism’d, 481 U.S.1073 (1987). The implication is incorrect. InDayton, the court stated:

Unless there is an agreement between theparties and the court to relax the Rules ofCivil Procedure, the proper time to makeobjections to the court’s charge is before

13The "insufficient evidence" or "againstthe great weight" objections are not onlyunnecessary, but approach the absurd because bytheir very definitions they presuppose that there issome evidence, and if there is any evidence of anyprobative value then the trial judge has nodiscretion and must submit the issue. SeeBarnhouse Motors, Inc. v. Godfrey, 577 S.W.2d378 (Tex. Civ. App.– El Paso l979, no writ).













34

the court has submitted the charge to thejury.

Id. at 674. This stray language might indicate thatthe parties can agree to make objections to thecharge after the charge has been read. There is noauthority in support of such a procedure, and thecases in fact explicitly hold that objections andrequests must be presented and ruled upon beforethe charge is read. See, e.g., Egan v. Egan, 8S.W.3d 1, 2 (Tex. App.—San Antonio 1999, pet.denied); Austin State Hosp. v. Kitchen, 903 S.W.2d83, 93 (Tex. App.—Austin 1995, no writ); Tubb v.Bartlett, 862 S.W.2d 740, 748 (Tex. App.—El Paso1993, writ denied); Methodist Hosps. of Dallas v.Corporate Communicators, Inc., 806 S.W.2d 879,885 (Tex. App.–Dallas 1991, writ denied).Moreover, the court in Methodist Hospitals held that“[a]n agreement of the parties, even with the consentand approval of the court, that calls for a party topresent objections after the court reads the charge tothe jury violates the rule, defeats one of its mainpurposes, and results in a waiver of the lateobjection.” Methodist Hosps. of Dallas, 806 S.W.2dat 885.

2. Distinctly Point out the Ground(s)of Your Objection.

A party objecting to a charge must point outdistinctly the objectionable matter and the groundsof the objection. TEX. R. CIV. P. 274. That is,identify what part of the question, instruction, ordefinition is objectionable. See Castleberry v.Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986)(“An objection that does not meet both requirementsis properly overruled and does not preserve error onappeal.”). The failure to make an objectionspecifically enough to identify clearly the defect forthe court constitutes waiver. See Universal Servs.Co., Inc. v. Ung, 904 S.W.2d 638, 640 (Tex. 1995);Aero Energy, Inc. v. Circle C Drilling Co., 699S.W.2d 821, 822 (Tex. 1985) (holding an objectionwaived “because the objection did not distinctlypoint out” the ground); Brown v. American Transfer& Storage, 601 S.W.2d 931, 938 (Tex.), cert.denied, 449 U.S. 1015 (1980); Davis v. Campbell,572 S.W.2d 660, 663 (Tex. 1978); Marathon Corp.v. Pitzner, 2001 WL 878234 *12 (Tex.App.—Corpus Christi 2001, no pet. h.) (rule 53.7(f)motion filed) (not yet published). Objections that

do not clearly state the grounds asserted on appealare insufficient because they do not afford the trialcourt an opportunity to correct any mistake.Holubec v. Brandenburger, 2001 WL 987789 *6(Tex. App.—Austin 2001, no pet. h.) (not yetpublished); Iron Mountain Bison Ranch, Inc. v.Easley Trailer Mfg., Inc., 42 S.W.3d 149, 156 (Tex.App.—Amarillo 2000, no pet.); Riddick v. QuailHarbor Condominium Ass’n, 7 S.W.3d 663, 675(Tex. App.—Houston [14th Dist.] 1999, no pet.).

General objections do not suffice. See, e.g.,City of Brenham v. Honerkamp, 950 S.W.2d 760,766 (Tex. App.—Austin 1997, writ denied)(objection that definition “not the law in Texas”insufficient); Ron Craft Chevrolet, Inc. v. Davis,836 S.W.2d 672, 675 (Tex. App.—El Paso 1992,writ denied) (objection that “no pleadings to supportthe submission” is so broad as to be meaningless).Also, objections on grounds that an instruction “mayconfuse the jury” or “prejudice the defendant” aretoo general because they do not explain why theinstruction is legally incorrect or how it wouldconfuse the jury or prejudice the objecting parties.Castleberry, 721 S.W.2d at 276.

Moreover, you do not get to change your mindon the grounds later! Indeed, if the complaint onappeal does not match the complaint at trial, mostcourts find waiver. See, e.g., Samedan, 2001 WL1153443 (asserted error not preserved when groundsfor objection at trial did not correlate to objectionmade on appeal); Weidner v. Sanchez, 14 S.W.3d353, 368-69 (Tex. App.—Houston [14th Dist.]2000, no pet.) (same); Lyondell Petrochemical Co.v. Kirkland, 1999 WL 1208506 (Tex.App.—Houston [1st Dist.] 1999, pet. denied)(unpublished) (objection at trial that instructionimproperly commented on weight of evidence didnot preserve error on whether instruction informedjury of the legal effect of its answer); Bracewell v.Bracewell, 31 S.W.3d 610, 616 (Tex.App.—Houston [1st Dist.] 1999, pet. denied)(objection at trial that charge omitted elements ofcontract formation did not preserve error on whethercourt should have submitted a broad-form questionasking whether the son performed his obligationsunder the agreements).

However, a litigant is not required to make fullappellate arguments during preparation of the

























35

charge. Such a requirement would run afoul of Rule274's policy of minimizing verbose, prolixobjections. Ahlschlager v. Remington Arms Co.,Inc., 750 S.W.2d 832 (Tex. App.—Houston [14thDist.] 1988, writ denied) (an objection that theinstructions were a comment on the weight of theevidence was sufficient to complain of theirplacement in the charge and of their combinedeffect); see also Wilson v. Kaufman & Broad HomeSys., 728 S.W.2d 874, 875 (Tex. App.–Beaumont1987, writ ref’d n.r.e.). An objection that does notmention controlling authority by name but identifiessubstantive defects of the submission is sufficient.Ford Motor Co. v. Miles, 967 S.W.2d 377, 386(Tex. 1998).

3. No Adoption of Objections byReference.

“No objection to one part of the charge may beadopted and applied to any other part of the chargeby reference only.” TEX. R. CIV. P. 274; see alsoMinnesota Min. & Mfg. v. Nishika, Ltd., 885 S.W.2d603, 616 (Tex. App.—Beaumont 1994), rev’d onother grounds, 953 S.W.2d 733 (Tex. 1997); C.T.W.v. B.C.G., 809 S.W.2d 788, 793 (Tex.App.—Beaumont 1991, no writ). You mustspecifically identify what is objectionable and whyfor each question, instruction, or definition.

4. Objection after Modification.

Where the trial court modifies or amends a juryquestion based on a party’s objection, thecomplaining party must assert a new objection to theamended or modified question in order to preservethe issue for appellate review. See Acord, 669S.W.2d at 114 (Tex. 1984); Hart v. Moore, 952S.W.2d 90, 94 (Tex. App.—Amarillo 1997, pet.denied); Baptist Memorial Hosp. Sys. v. Smith, 822S.W.2d 67, 74 (Tex. App.—San Antonio 1991, writdenied). A charge amendment requiring reiterationof objections does not occur when a jury asks thejudge a question regarding the charge and the judgemerely instructs the jury to read the original charge.Toennies, 998 S.W.2d at 377.

5. Not Obscured or Concealed withVoluminous or UnfoundedObjections.

The rules specifically warn that when anobjection is, in the opinion of the appellate court,obscured or concealed by voluminous unfoundedobjections, minute differentiations or numerousunnecessary requests, the objection or request shallbe untenable. TEX. R. CIV. P. 274; see also Doe v.Mobile Video Tapes, Inc., 43 S.W.3d 40, 50 (Tex.App.—Corpus Christi 2001, no pet. h.) (“a partyviolates Rule 274 by making voluminous objectionswhich obscure or conceal the objection”); Borden,Inc. v. Rios, 850 S.W.2d 821, 827 (Tex.App.—Corpus Christi 1993), pet. granted, jdgm’tvacated w.r.m. 859 S.W.2d 70 (Tex. 1993). The testfor voluminous objections is whether the trial courtwas deprived of a real opportunity to correct errorsin the charge. Northcutt v. Jarrett, 585 S.W.2d 874(Tex. Civ. App.—Amarillo 1979), writ ref’d n.r.e.per curiam, 592 S.W.2d 930 (Tex. 1979).

6. Ruled upon by the Court.

The judge must announce his rulings on theobjections that have been properly presented andshall (1) endorse his rulings on the objections ifwritten, or (2) dictate the same to the court reporterin the presence of counsel if the objections havebeen dictated to the court reporter. TEX. R. CIV. P.272.

Formerly, implied rulings were insufficient andan attorney’s failure to obtain the court’s expressruling on the objection waived the objection, even ifthe court specifically denied the requested issues.Hernandez v. Montgomery Ward & Co., 652 S.W.2d923 (Tex. 1983); See also Cogburn v. Harbour, 657S.W.2d 432, 433 (Tex. 1983). However, in Acord v.General Motors Corp., 669 S.W.2d 111, 114(Tex.1984) the Texas Supreme Court overruledHernandez regarding what constitutes a ruling on anobjection. The Court said that “[w]e interpret thepresumptive provision of Rule 272 to mean that ifan objection is articulated and the trial court makesno change in the charge, the objection is, ofnecessity, overruled.” Acord, 669 S.W.2d at 114;see also Redding, 2001 WL 726435 *6; OperationRescue-National v. Planned Parenthood of Houstonand Southeast Texas, Inc., 937 S.W.2d 60, 70 (Tex.App.—Houston [14th Dist.] 1996), aff’d as modified,975 S.W.2d 546 (Tex. 1998); Baptist MemorialHosp. System v. Smith, 822 S.W.2d 67, 74 (Tex.App.—San Antonio 1991, writ denied); Borden,






























36

850 S.W.2d at 834. The safest route is to get aruling on the record, but if not, look to Acord. Seealso TEX.R.APP.R. 33.1.

7. Simplifying the Charge Objection:The Payne Rule.

In State Dep’t of Highways v. Payne, 838S.W.2d 235 (Tex. 1992), the Supreme Courtannounced:

There should be but one test fordetermining if a party has preserved errorin the jury charge, and that is whether theparty made the trial court aware of thecomplaint, timely and plainly, andobtained a ruling. The more specificrequirements of the rules should beapplied, while they remain, to serve ratherthan defeat this principle.

Id. at 241. This language created a quandary asaptly described in a footnote by Justice Hinojosa:

Since this passage is cast as advice ratherthan as an order (“There should be but onetest”), we are uncertain whether thislanguage represents the present state ofthe law or a yet to be reached ideal. Onthe one hand, the Texas Supreme Courttells us that Payne does not change anyrules; yet, on the other hand, Paynereverses and renders on charge errorwhich was not raised by objection.

Borden v. Rios, 850 S.W.2d 822.

The quandary was resolved by the SupremeCourt’s per curiam opinion in Alaniz v. Jones &Neuse, Inc., 907 S.W.2d 450 (Tex. 1995). In Alaniz,the court of appeals acknowledged that Alaniz mayhave preserved his objection on appeal under thedecision in Payne. However, the court of appealsdeclined to follow Payne holding instead that Alanizdid not meet the requirements of Rule 273. Inreversing the court of appeals’ decision, the TexasSupreme Court reaffirmed the Payne rule, saying:

[t]he court of appeals also erred inconcluding that Payne conflicts with Rule273. In Payne we held that a party has

preserved error in the jury change whenhe has made the trial court reasonablyaware of the complaint, timely andplainly, and obtained a ruling. 838S.W.2d at 241. While Payne does notrevise the requirements of the rules ofprocedure regarding the jury charge, itdoes mandate that those requirements beapplied in a common sense manner toserve the purposes of the rules, rather thanin a technical manner which defeats them.Under the reading of Rule 273 Paynerequires, Alaniz preserved his jury chargecomplaint.

Alaniz, 907 S.W.2d at 451-52; see also GalvestonCounty Fair & Rodeo, Inc. v. Glover, 940 S.W.2d585, 586 (Tex. 1996)(per curiam); Lester v. Logan,907 S.W.2d 452 (Tex. 1995); cf. Dallas Mkt. Ctr.Dev’t Co. v. Liedeker, 958 S.W.2d 382, 386(Tex.1997); Redding, 2001 WL 726435 *5-6; In reStevenson, 27 S.W.3d 195, 201 (Tex. App.—SanAntonio 2000, pet. denied). Applying Payne, theSupreme Court in Spencer v. Eagle Star Ins. Co. ofAmerica, held that Eagle Star’s objection wassufficient to preserve error regarding a defectiveinstruction despite the lack of a written request. 876S.W.2d 154 (Tex. 1994).

The “common sense” approach of Payne andits progeny has not been clearly delineated. Theextent to which the courts of appeals are willing torelax the rules of civil procedure and give meaningto Payne are not clear. As a result, merely relyingon Payne’s “common sense approach” could resultin waiver under the rules. Therefore, the safest betis to preserve error by making the appropriateobjection and/or request under the rules and attemptto find solace in Payne if you later find out that youmade the wrong choice under the rules. Hopefully,a new rule will be passed by the Supreme Court thatwill clear up this confusion.

D-952058.3















Supplement to

Court’s Charge--Minefield Approach

Litigation Update Institute 2002January 11-12, 2002San Antonio, Texas

Chapter 16

- 2 -

BROAD FORM COMBINING LIABILITY QUESTIONWITH AFFIRMATIVE DEFENSES

QUESTION No. 1

Did any person named below fail to comply with their fiduciary dues to ABCCorporation?

a. Because they were either officers, directors or counsel for ABC CORPORATION,the people named below owed ABC CORPORATION a fiduciary duty. To provenon-compliance with a fiduciary duty, ABC CORPORATION must show:

i. A person named below did not make reasonable use of the confidence thatABC CORPORATION placed in him;

ii. A person named below did not act in the utmost good faith or exercise themost scrupulous honesty toward ABC CORPORATION;

iii. A person named below placed his own interests before the interests of ABCCORPORATION, used the advantage of his position to gain a benefit for himself atthe expense of ABC CORPORATION, or placed himself in any position where hisself-interest might conflict with his obligations as a fiduciary; or

iv. A person named below did not fully and fairly disclose any all importantinformation to ABC CORPORATION concerning the business opportunity oropportunities.

b. If you find that –

i. after full disclosure of all important information about the opportunity,ABC CORPORATION rejected the opportunity, or

ii. the opportunity is one which ABC CORPORATION did not have thefinancial capability to pursue,

then the fiduciary may take advantage of the opportunity without failing tocomply with his fiduciary duties.

ANSWER in the blank following each name ‘yes’ or ‘no’:

(1) John Doe _______(2) Jack Smith _______(3) Ted Brown _______

- 3 -

CASTEEL LIABILITY QUESTION

QUESTION No. 2

Did CROWN engage in any false, misleading, or deceptive act or practice thatCASTEEL relied on to his detriment and that was a producing cause of damages toCASTEEL?

“False, misleading, or deceptive act or practice” means any of the following:

(1) Representing that goods or services had or would have characteristics that they didnot have, [17.46(b)(5)]

(2) Representing that goods or services are or will be of a particular quality if theywere of another, [17.46(b)(7)]

(3) Advertising goods or services with intent not to sell them as advertised,[17.46(b)(9)]

(4) Representing that an agreement confers or involves rights that it did not have orinvolve, [17.46(b)(12)] or

(5) Failing to disclose information about goods or services that was known at the timeof the transaction with the intention to induce CASTEEL into a transaction itotherwise would not have entered into if the information had been disclosed.[17.46(b)(23)]

ANSWER ‘YES’ OR ‘NO’:

- 4 -

GLOBAL DAMAGE QUESTION

QUESTION NO. 3

What sum of money, if any, if paid now in cash, would fairly and reasonablycompensate CASTEEL for his damages, if any, that were proximately caused by suchconduct?

Consider the elements of damages listed below and none other:

(1) the market value of the property,

(2) out-of-pocket expenditures incurred by CASTEEL,

(3) the profits CASTEEL lost in the past that were a natural, probable and foreseeableconsequence of such conduct, and

(4) the profits CASTEEL will lose, in reasonable probability, in the future as a natural,probable and foreseeable consequence of such conduct.

ANSWER in Dollars and Cents, if any:

- 5 -

DAMAGE ELEMENTS SUBMITTED SEPARATELY

ALTERNATIVE QUESTION NO. 3

What sum of money, if any, if paid now in cash, would fairly and reasonablycompensate CASTEEL for his damages, if any, that were proximately caused by suchconduct?

a. Consider the elements of damages listed below and none other.

b. Do not include in your answer any amount that you find CASTEEL could haveavoided by the exercise of reasonable care.

c. Do not include interest on any amount of damages you find.

ANSWER separately in the blank following each element, in Dollars and Cents, for damages if any:

(1) the market value of the property $___________(2) out-of-pocket expenditures incurred by CASTEEL $___________(3) the profits CASTEEL lost in the past that were a

natural, probable and foreseeable consequence ofsuch conduct $___________

(4) the profits CASTEEL will lose, in reasonableprobability, in the future as a natural, probable andforeseeable consequence of such conduct $___________

- 6 -

TORTIOUS INTERFERENCE WITHPROSPECTIVE BUSINESS RELATIONS

QUESTION No. 41

Did any person named below wrongfully interfere with ABC CORPORATION’sprospective contractual relations with BILL GATES?

a. “Wrongful interference” occurred if –

i. there was a reasonable probability that ABC CORPORATION would haveentered into contractual relations, and

ii. a person named below unlawfully prevented the contractual relations fromoccurring with the purpose of harming ABC CORPORATION.

ANSWER in the blank following each name ‘yes’ or ‘no’:

(1) John Doe _______(2) Jack Smith _______(3) Ted Brown _______

1 See pages 13-14 of the paper.

- 7 -

EXEMPLARY DAMAGE QUESTION

QUESTION No. 5

What sum of money, if any, should be assessed against DEFENDANT and awarded toABC CORPORATION as exemplary damages, if any, for the conduct you have found?

a. “Exemplary damages” means an amount that you may in your discretion award as anexample to others and as a penalty or by way of punishment.

b. Factors you should consider in awarding exemplary damages, if any, are:

1. The nature of the wrong,

2. The character of the conduct involved,

3. The degree of culpability of the wrongdoer,

4. The situation and sensibilities of the parties concerned,

5. The extent to which such conduct offends a public sense of justice andpropriety, and

6. The net worth of the wrongdoer,2

2 Other Factors? See pages 23-24 of the paper: (1) defendant’s ability to pay; (2) profitability ofmisconduct; (3) prior punitives; (4) prior settlements; (5)compensation for inconvenience and attorneys’fees; (6) frequency of the wrongs committed; (7) amount needed to deter similar wrongs in the future.

- 8 -

c. Exemplary damages can be assessed against DEFENDANT as a principal because ofan act by an agent if, but only if:

1. The principal authorized the doing and the manner of the act,

2. The agent was unfit and the principal was reckless in employing him,

3. The agent was employed in a managerial capacity and was acting in the scope ofemployment, or

4. The employer or manager of the employer’s ratified or approved the act.

ANSWER in Dollars and Cents, if any: $

court’s charge-- minefield approachnina cortell heather bailey m. scott carol haynes and boone,...

Documents