ISLAND RECREATIONAL DEVELOPMENT CORPORATION, et al., Petitioners, v. REPUBLIC OF TEXAS SAVINGS ASSOCIATION, et al., Respondents.
No. C-3762.
Supreme Court of Texas.
May 7, 1986.
Rehearing Denied June 25, 1986.
710 S.W.2d 551
WALLACE, Justice.
WALLACE, Justice, dissenting.
I respectfully dissent. The contractual provision that a roof is “bondable up to 20 years,” by its nature, means capable of being bonded for a period of up to 20 years. In other words, the product is made of such quality that a surety is willing to issue a 20 year bond, as opposed to a ten year bond for lesser quality materials or a 30 year bond for higher quality materials. The surety bond itself is what protects the purchaser against repairs or defects in the roof. Grand Island School District v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979). It would be logically inconsistent for a seller to represent on the one hand that the purchaser could obtain a repair bond and at the same time guarantee the product against repairs and defects. See Little Rock School District of Pulaski City v. Celotex, 264 Ark. 757, 574 S.W.2d 669, 675 (1978) (Smith, J., dissenting).
Furthermore, even if this term could be construed as an express warranty, what it expresses is clearly confined to a specific point in time: i.e., the time the roof is completed. To say, as the majority does, that “bondable up to 20 years” may be construed as an explicit reference to future performance is tantamount to saying that the purchaser of the roof could approach a surety at any time and obtain a bond for 20 years into the future. The majority makes the term “bondable” synonymous with “bonded” and, in doing so, defies the plain meaning of the term and re-forms the manner in which it is used in the construction industry.
I would hold that Certainteed made no express warranty to Safeway that the roof would last for 20 years and, accordingly, affirm the judgment of the court of appeals.
Carrin F. Patman, Bracewell & Patterson, Houston, Roger S. McCabe, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Brian R. Davis, Davis DeShazo & Gill, Austin, for respondents.
ON MOTION FOR REHEARING
WALLACE, Justice.
We grant the motion for rehearing, withdraw the opinion and judgment of July 3, 1985, and substitute this opinion.
Island Recreational Development Corporation and Sea Cabins, Inc. (Island) sued Republic Bank of Texas Savings Association and Bankers Capital Corporation (Republic) for breach of contract in failing to comply with its obligations under a loan commitment letter. The trial court rendered judgment for Island for $667,882.87 in actual damages and $52,500 in attorneys’ fees. The court of appeals reversed the judgment of the trial court and rendered judgment for Republic. 680 S.W.2d 588. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
Island paid $40,000 for a loan commitment letter under which Republic was to fund mortgages to qualified purchasers of Sea Cabins Condominiums at 13% percent interest. The commitment letter was to expire on March 15, 1981. In August, Island paid an additional $20,000 to have the expiration date extended until September 15, 1981. The interest rate was also raised to 13¾ percent. The commitment letter provided in part:
Bankers Capital Corporation shall agree to make first mortgage loans under this commitment based on the following terms and conditions:
. . . .
15. Transfer of Commitment
This commitment is nontransferable or assignable to any other individual, corporation or entity unless specifically approved in writing by Bankers Capital Corporation.
. . . .
17. Commitment Term
This commitment shall remain in effect until March 15, 1981. Applications for loans must be received at least 30 days prior to this date and closings and fundings of the loans must be completed prior to March 15, 1981.
On September 14, 1981, Michael J. Ryan, President of Island, wrote Richard S. Waring, Senior Vice-President of Republic, that the provisions of the commitment contract had been met. Ryan demanded that Republic honor its mortgage commitment. Waring responded that the terms and conditions were not satisfied and denied any obligation to fund the loans. Waring alleged that the construction was not completed by the deadline. He also asserted, “paragraph 17 requires that loan applications were to have been received at least 30 days prior to September 15, 1981. This requirement was not met.”
Island contends Republic waived its right to demand strict compliance with the condition, or was estopped to deny its obligation to perform. The trial record reflects that both parties, the court and the jury were aware that waiver was an important element in the trial.
Both Island and Republic requested the trial court to submit issues that included waiver. The trial court rejected the re-
Do you find from a preponderance of the evidence that plaintiffs performed their obligations under the commitment letter in question?
ANSWER: “We do.”
The trial court submitted no instructions with the above issue and neither party objected to the charge on this ground. However, when the totality of the trial proceedings are considered it is apparent that waiver of Paragraph 17 of the letter of commitment was considered by the jury and found adversely to Republic.
We recognize that waiver is an independent ground of recovery or defense and must be pleaded and proved as such. That is not the question before us. Our question is whether it is reversible error for a trial judge to submit a single broad issue encompassing more than one independent ground of recovery.
It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues. Inferential rebuttal issues shall not be submitted. (emphasis added).
In Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984), we reemphasized our approval of broad issue submission. We stated:
In 1973, after sixty years, it became apparent that Texas courts . . . had substituted in the place of instructions, a jury system that was overloaded with granulated issues to the point that jury trials were again ineffective. The Supreme Court in 1973 amended
Rule 277, Tex.R.Civ.P. , by abolishing the requirement that issues be submitted distinctly and separately. Since that time, broad issues have been repeatedly approved by this court as the correct method for jury submission.This court‘s approval and adoption of the broad issue submission was not a signal to devise new or different instructions and definitions. We have learned from history that the growth and proliferation of both instructions and issues come one sentence at a time. For every thrust by the plaintiff for an instruction or an issue, there comes a parry by the defendant. Once begun, the instructive aids and balancing issues multiply. Judicial history teaches that broad issues and accepted definitions suffice and that a workable jury system demands strict adherence to simplicity in jury charges. (emphasis added)
The Lemos case, while our latest pronouncement upon this subject, was founded upon a long and distinguished line of authority beginning with Haas Drilling Co. v. First National Bank in Dallas, 456 S.W.2d 886 (Tex.1970) where we stated:
[I]t is quite clear that there will be no reversal in non-negligence cases simply because the issue is too broad or too small. The trial court has almost complete discretion, so long as the issue in question is unambiguous and confines the jury to the pleading and the evidence. 456 S.W.2d at 889 (quoting G. Hodges, Special Issue Submission in Texas [Supp. 1969]).
In Scott v. Ingle Brothers Pacific, Inc., 489 S.W.2d 554 (Tex.1972) we upheld an issue which inquired “[d]o you find . . . that H.L. Scott was discharged by the Defendant without good cause?” against an objection that the issue was too broad. We re-urged our holding in Haas that the trial court has wide discretion to submit broad issues. Id. at 557. In Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974), decided only three months after we adopted the amended version of
It is understandable that a rule requiring issues to be submitted ‘distinctly and separately’ which prevailed from 1913 until 1973 would slowly relinquish its hold upon trial practice, but after 1973,
Rule 277 , as amended, permits the submission of issues broadly even though they include a combination of elements or issues. This court, in addition to the times it has written in the opinions already cited, has on a number of other occasions, approved broad submissions. [Citing dozens of cases both by this court and by courts of appeals.]
Our exasperation at the bench and the bar for failing to embrace wholeheartedly broad issue submission is thinly veiled in the above quote. See also, Maples v. Nimitz, 615 S.W.2d 690 (Tex.1981) and Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.1980). This court has clearly mandated that
In the instant case the controlling issue, the only issue which would authorize a recovery by Island, was whether Island had performed all of the things required by Republic as conditions precedent so as to entitle Island to enforce the commitment. This was precisely the single issue the trial court chose to submit to the jury.
We hold that in the instant case the trial judge was following the policy this court has enunciated concerning broad issue submissions. We further hold that, when requested, the trial court should submit appropriate accompanying instructions. However, we decline to say that the failure to do so is reversible error per se. To determine whether an alleged error in the jury charge is reversible, the reviewing court must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Alleged error will be deemed reversible only if, when viewed in the light of the totality of these circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment.
In the instant case, if the absence of an instruction on waiver was detrimental to either party, it was Island. Nonetheless, Island received a favorable jury verdict. Republic, as the complaining party, has failed to demonstrate harm from an alleged error from which it benefited. When the totality of this case is considered, we find no reversible error on the part of the trial court in broadly submitting the case to the jury.
The court of appeals held there was no evidence of waiver by Republic. In deciding a no evidence point, the appellate court must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).
The record shows that Island‘s principal officer, Mike Ryan, met several times with officers and employees of Republic concerning the applications. Ryan first contacted Republic‘s officer in charge of the loan commitment, Senior Vice-President Richard Waring. Waring had Pat Green call Ryan in June of 1981. Green was in charge of Republic‘s loan department in Houston. Ryan requested the materials that were necessary to prepare the loan applications. Green sent the materials necessary to prepare the loan applications to the Beaumont office of Republic, which was in the process of being closed. When he did not receive the materials, Ryan contacted a former officer of Republic and secured F.N.M.A. forms. Waring told Ryan in August of 1981 that Republic wanted to handle the applications in Houston.
Ryan then began preparing the forms with Green at Republic‘s Houston office on August 18, or August 25, 1981. At that time Ryan delivered the unfinished loan
There was also evidence that the very top officers at Republic discussed the Island commitment daily between August 15, and September 15, 1981, knowing the applications had not been filed before the deadline, and yet took no action to inform Ryan that the commitment would not be honored. Republic‘s officers knew that Ryan had crews working 24 hours a day and was thereby incurring excessive expense, to complete the units by the September 15, 1981 completion deadline. On September 14, 1981, Republic sent an inspector out to the project and on September 15, 1981, hired an independent appraiser to determine if the project was complete. Republic‘s highest officers were cognizant of the Island commitment and its deadlines, they did not want to have to fund the commitment, and yet they never gave Island any indication that the forms would not be accepted or acted upon, or that the loan would not be funded for that reason.
This evidence constitutes some evidence that Republic knowingly waived the application deadline. The court of appeals thus erred in finding there was no evidence of waiver.
The court of appeals found as a matter of law that Island breached paragraph 15 of the commitment letter and thus had no interest in the letter as of the date of trial. The record shows that prior to commencing construction and in order to arrange interim construction financing Island executed an assignment of the letter of commitment to Allied Merchants Bank. The assignment stated:
Borrower [I.R.D.C.] hereby assigns to lender [Allied] (i) all of the right, title and interest of Borrower to and under the commitments of the long-term lenders described in Exhibit “B” and (ii) the agreement between Borrower and the general contractor which is described in Exhibit “B“.
Island contends that the assignment was merely a collateral assignment and the record shows that Republic‘s attorney conceded such at trial. Island produced evidence that Republic was fully aware at the time the commitment letter was issued that Island would necessarily acquire interim construction financing. Further, it was customary in this type of transaction that the commitment of the long term financer would be collaterally assigned to the lender of the construction financing.
An assignment, though absolute in form, can be shown by parol evidence to be intended only as collateral security. Kaufman v. Blackman, 239 S.W.2d 422, 427 (Tex.Civ. App.—Dallas 1951, writ ref‘d n.r.e.). See Wilbanks v. Wilbanks, 160 Tex. 317, 330, 330 S.W.2d 607 (1960).
This question was argued to the jury which by its answer to the liability issue found for Island. Further, by the terms of the paragraph in question the letter of commitment was not assignable without Republic‘s consent. Thus, any attempted assignment, whether absolute or collateral, would be of no force and effect. The letter contained no penalty provision for an attempted assignment. We hold that the court of appeals erred in finding
All of Republic‘s other cross-points were correctly determined by the court of appeals.
The judgment of the court of appeals is reversed and the judgment of the trial court is affirmed.
SPEARS, J., files a dissenting opinion in which McGEE and CAMPBELL, JJ., join.
GONZALEZ, J., files a dissenting opinion.
SPEARS, Justice, dissenting.
I respectfully dissent. At the outset, I wish to note that I am not writing this dissent to discourage or impede broad issue submission. I write only to encourage wise and efficient broad issue practice.
I agree with the majority‘s advocating a simpler, fairer, more efficient jury charge system through broad issue submission. However, I do not agree that the charge in this case broadly submitted both waiver and performance. The issue in this case reads:
Do you find from a preponderance of the evidence that plaintiffs performed all their obligations under the commitment letter in question?
The jury answered “We do.”
In reviewing this issue, the majority characterizes the question before this court as: “whether it is reversible error for the trial court to submit a single broad issue encompassing more than one independent ground of recovery.” While I believe the answer to this question is “no,” the answer to this general question does not resolve this case. The only question which answered will resolve this case is whether the charge submitted to this jury encompassed both performance and its independent counterpart, waiver. I will show why it does not. I will then discuss the myriad of procedural traps and legal tangles under the majority‘s approach which will undermine broad issue practice.
In a jury charge system, it is fundamental that a judgment be based on the verdict.
The charge in this case does not place waiver before the jury. Waiver is not subsumed in the issue asking if Island performed its obligations under the commitment letter because waiver and performance are independent, mutually exclusive legal theories. Middle States Petroleum Corp. v. Messenger, 368 S.W.2d 645, 654 (Tex.Civ.App.—Dallas 1963, writ ref‘d n.r. e.). While waiver and performance may be submitted in the same issue,1 the issue submitted to this jury did not mention waiver; therefore, the issue itself does not support a judgment for Island.
A broad issue, silent on a ground of recovery, may envelop that ground through instructions which refer the ground to the issue. Walker, supra at 363-65; Pope, A
This charge simply does not submit waiver and performance broadly, but only submits performance specifically. Waiver is not mentioned in the issue or in any instruction. The issue asks about performance of “obligations under the commitment letter in question.” It does not ask or instruct about waiver. It does not even ask or instruct, as the majority states, “whether Island had performed all of the things required by Republic” (indicating those things not required by Republic were waived). The word “performed” is modified in the issue by “obligations under the commitment letter in question,” not by “all of the things required by Republic” as the majority states. Even this rewording would not encompass waiver without instructions.
Because the charge is silent on waiver, the majority truly holds that it is acceptable to imply a jury answer to an independent ground of recovery or defense never mentioned in the charge. No broad issue case or comment so holds. Nevertheless, the majority gratiously quotes out of context from several cases espousing broad issue submission. For example, the majority quotes from Burk Royalty Co. v. Walls, 616 S.W.2d 911, 914 (Tex.1981), to support its holding. Burk Royalty does encourage broad issue submission. In fact, Burk Royalty states that broad issues may “include a combination of elements or issues.” 616 S.W.2d at 924. For a ground of recovery or defense to support a judgment, however, the charge must expressly mention the ground either in issues or in instructions. Neither Burk Royalty nor any of the other cases cited hold that independent grounds of recovery not expressed in the charge can support judgment.
However, the majority holds that “when the totality of the trial proceedings are considered it is apparent that waiver of paragraph 17 of the letter of commitment was considered by the jury and found adversely to Republic.” The majority believes that because waiver was pleaded, tried, and argued, the jury apparently considered it in its deliberations. The majority ignores the crucial last step in establishing a ground of recovery: placing the ground before the jury in the charge. Harkey v. Texas Employer‘s Insurance Agency, 146 Tex. 504, 208 S.W.2d 919 (1948).
This points out the true problem in this case. The charge submitted did not expressly mention waiver in an issue or in an instruction. The jury was instructed, as in all cases, “not to speculate on matters not shown by the evidence admitted before you and about which you are not asked any questions.” This instruction closely parallels
Notwithstanding that waiver was not mentioned in the charge, the majority holds
The majority‘s harmless error analysis leaves the party defending against a broad issue (opponent) remediless on appeal. The party relying on a broad issue (proponent) may submit that issue, silent on certain tried independent grounds of recovery or defense. The opponent would then be in real trouble. Under the majority‘s approach, the trial court must render and the court of appeals must uphold judgment on the omitted grounds, even if it finds no evidence to support affirmative answers to the submitted grounds. This precludes no evidence or factual insufficiency review of grounds submitted to the jury. Furthermore, the majority would then hold that failure to include in the charge other tried grounds was harmless as to the grounds’ opponent, precluding his complaint that the judgment is not supported by affirmative findings on evidenced grounds of recovery or defense.
This analysis also impliedly and incorrectly places the burden to request such an instruction on the opponent of an issue, for he is better off requesting the omitted ground and hoping for a negative finding than facing certain implication of an affirmative finding on appeal. Even if requested, the judge‘s failure to submit will be harmless. Never before now has one party been required to request submission of his opponent‘s independent ground of recovery or defense.
The majority‘s harmless error holding also gives the issue‘s proponent an incentive not to request instructions. The issue‘s proponent, to avoid reversal on defective instructions or unevidenced mentioned grounds, will not request them, knowing the majority will uphold the verdict if any evidence supports any tried but omitted ground.
In addition to confusing trial practice, the majority‘s implying that the jury considered a ground not expressed in the charge also radically alters appellate review. Following the majority‘s lead, the appellate courts in reviewing charges cannot render for no evidence or remand for factual insufficiency on affirmative answers to submitted grounds. Rather, they will have to speculate on what omitted grounds of recovery the jury may have considered and imply affirmative answers to those grounds. This speculation into the jurors mental processes violates the tantamount rule of appellate review that the court shall not substitute its judgment for the jury‘s. This also forces the appellate court to violate an instruction always given jurors not to speculate on matters not mentioned in the charge. See
To avoid all of these problems, I propose a simple rule: broad issues encompass only those grounds of recovery actually written and appearing on the face of an issue or an instruction. The converse is that unexpressed independent grounds of recovery or defense cannot support judgment. Under this rule, the parties will know precisely how to place grounds of recovery and defense before the jury: expressly mention them in issues or instructions. If the party relying on a ground of recovery or defense fails to request an issue or instruction specifically mentioning the ground, he waives it. The jury also will know clearly, not just apparently, from reading the charge what grounds of recovery it may consider in reaching its verdict. Furthermore, the trial court and the appellate court will know clearly from reading the charge what grounds of recovery the jury considered, and review the case accordingly, without speculation.
Under this rule, the verdict in this case does not support judgment for Island.
Normally, when a judgment is erroneously rendered, we reverse and render. However, out of fairness to both parties, I would remand this cause to the trial court in the interest of justice.
Considering all of the circumstances surrounding this charge, and the novelty of the majority‘s holding, we can fairly dispose of this case only by remanding to the trial court to proceed according to this opinion.
McGEE and CAMPBELL, JJ., join in this dissent.
GONZALEZ, Justice, dissenting.
I respectfully dissent. While I agree with this court‘s policy concerning broad issue submission, I disagree that the policy should be advanced in this case.
Island sought Republic‘s assistance in providing financing to prospective purchasers of Island‘s condominiums. One of the requirements (Paragraph 17) of their agreement was that loan applications be submitted to Republic thirty days prior to the termination date. Island did not comply with this requirement. Republic refused to fund the loans. Island then sued Republic for breach of contract.
At trial, both sides requested various issues and instructions on both performance of the commitment letter‘s conditions and waiver. The trial court, however, refused to submit the requested issues and instructions on waiver and only submitted one issue on liability which read:
Do you find from a preponderance of the evidence that plaintiffs performed their obligations under the commitment letter in question?
Answer: We do.
The majority states that “when the totality of the trial proceedings are considered it is apparent that waiver of Paragraph 17 of the letter of commitment was considered by the jury and found adversely to Republic.”
I disagree for the following reasons: (1) a trial court‘s failure to submit instructions with broad issues that “subsume” mutually exclusive independent grounds of recovery or multiple causes of action is harmful
(1) Broad Issue Instructions and Harmful Error
The question presented on appeal is whether the issue submitted to the jury includes Island‘s ground of recovery alleging that Republic waived the condition that the loan applications be received at least thirty days prior to the termination date. Applying the evidence introduced at trial to contract law, a verdict in Island‘s favor can only be based on a theory of waiver. The majority concludes that the submitted “broad” issue includes an issue on waiver.3
The trial court did not, however, submit an accompanying instruction on waiver. Where multiple grounds of recovery are included in one broad issue, the trial court should give the jury appropriate instructions. Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1975). Where, as here, the broad issue contains independent grounds of recovery that are mutually exclusive or otherwise conflicting, the trial court must submit an instruction. Otherwise, the verdict can be based upon a jury finding to an erroneous legal theory.
The majority holds that a trial court‘s failure to give an instruction to a “broad” issue is not reversible error per se, and further, that Republic, the party whose liability is premised on the omitted ground of recovery, has failed to “demonstrate
In reviewing whether the trial court‘s failure to give an instruction or issue is “harmful error,” this court is guided by
This court has frequently discussed “harmful error” in the context of the jury charge. In 1973, this court amended
Similarly, in Jackson v. Fontaine‘s Clinics, Inc., 499 S.W.2d 87 (Tex.1973) this court held that an issue on actual damages was overly broad when it contained an inappropriate instruction that allowed recovery for “loss of monetary reward.” A proper instruction would have included net profits or another legal measure of damages. Thus, this improper submission “was fatally defective, because it simply failed to guide the jury on any proper legal measure of damages.” Id. at 90. This court reversed the judgment because the accompanying instruction failed to limit the jury‘s considerations on the “broad” issue. When the jury‘s answer to a broad issue can include inapplicable types of damages or inapplicable grounds of recovery, the issue requires an appropriate accompanying instruction. The “broad” issue submitted in this case does not have such an accompanying instruction.
In Scott v. Atchison, Topeka & Santa Fe Ry., 572 S.W.2d 273 (Tex.1978) the adversely affected party complained of the submission of a broad issue which allowed the jury to find negligence on facts that were neither pleaded nor proved. In reversing, we stated:
In view of the wide variance between the pleadings and unplead facts and circumstances from which the jury could have inferred that the railroad was negligent, such error was reasonably calculated to and probably did cause the rendition of an improper judgment.
Id. at 277. Other Texas Supreme Court cases have reversed the lower court judgments for errors in the charge. Washington v. Reliable Life Ins. Co., 581 S.W.2d 153 (Tex.1979) (trial court submitted irrelevant issue); Dutton v. Southern Pacific Transportation, 576 S.W.2d 782 (Tex.1978) (trial court submitted com-
The majority observes that “if the absence of an instruction on waiver was detrimental to either party, it was Island.” The majority fails to state on what basis it makes this determination. If the issue is properly construed as only addressing performance, then the majority‘s statement is accurate. However, when the issue is construed as containing questions on both performance and waiver in one “broad” issue; the submitted issue, without instruction, gives Island “two bites at the apple.” The jury could either find that Island performed its obligations, or, as under the majority‘s analysis, the jury may “impliedly” find that Republic waived its rights to enforce the obligations.
The majority states that “the controlling issue, the only issue which would authorize a recovery by Island, was whether Island had performed all of the things required by Republic as conditions precedent so as to entitle Island to enforce the commitment.” The majority, then, emphasizes the fact that performance of conditions precedent was the question before the jury, not waiver. Thus, the submitted issue was not “detrimental” to Island, but allowed Island to recover on a ground of recovery that was not addressed in the charge. The issue was detrimental to Republic both because it was held liable on an omitted ground of recovery and because it was not required to request that Island‘s omitted theory of recovery be submitted.
This case will have a far reaching impact. Regardless of the result reached here, the majority should not place its stamp of approval allowing a trial court to submit broad, even innocuous, issues without any limiting instructions or definitions. The majority opinion makes it virtually impossible for appellate courts to review the trial court‘s charge. The prevailing party need only argue that the issue submitted to the jury was a “broad” issue, thereby encompassing any and all theories of recovery. All omitted grounds of recovery will be “subsumed” in “broad” issues. Without instructions, the submission of broad issues leads to verdicts unsupported by legitimate legal theories. Broad issues will virtually become general charge submissions.
(2) Rule 277 and Issue Submission
In reaching its conclusion that failure to submit an instruction is not harmful error, the majority relies on the portion of
In submitting the case, the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict . . .
The majority further relies upon cases dealing with
(3) Rule 279 and Issue Submission
In framing the issue of this case, the majority states that the “question is whether it is reversible error for a trial judge to submit a single broad issue encompassing more than one independent ground of recovery?” The majority, then, holds that questions both on performance and on waiver are included in the same issue. Yet, the word “waiver” does not appear in the issue. Under
Upon appeal all independent grounds of recovery or defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived . . .
Waiver is an independent ground of recovery. Middle States Petroleum Corp. v. Messenger, 368 S.W.2d 645, 654 (Tex.Civ. App.—Dallas 1963, writ ref‘d n.r.e.). See Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726 (Tex.1981); Washington v. Reliable Life Ins., 581 S.W.2d 153, 157 (Tex. 1979). Waiver was neither conclusively established nor was an issue submitted on waiver. The waiver ground of recovery was waived. Thus, Island, the party relying on waiver, should not be allowed to recover on the submitted issue.
The majority‘s approach in this case disregards well established rules relating to the party who has the burden of requesting the submission of issues. Island relies on the waiver theory for its recovery. Under
By its holding, the majority implicitly requires that Republic request and object to the submission of its adversary‘s omitted
For the above reasons, I would affirm the judgment of the court of appeals.
WALLACE
JUSTICE
Notes
Contract law governs the parties’ rights and obligations. The court of appeals held, as a matter of law, that Paragraph 17 was a condition precedent (an “obligation“) under the commitment letter. Island did not appeal this holding. The majority implicitly holds that failure to perform the condition precedent was undisputed. Apparently, the majority is holding that nonperformance of Paragraph 17 was established as a matter of law. Utilizing these two legal conclusions (Paragraph 17 is a condition precedent and Island failed to perform Paragraph 17), the majority reasons Island could not have performed its obligations under the letter. Thus, after precluding as a matter of law any question on performance, the court then implies a finding of waiver of the condition precedent. If failure to perform was conclusively established and the trial court and jury treated Paragraph 17 as a condition, then the trial court should not have submitted an issue asking if Island performed its obligations. Only disputed controlling issues are submitted to the jury.
The majority‘s assumption on the jury determination is not supported by the events at trial. Several issues were requested in regard to whether Island made certain improvements on the premises as required under Paragraph 15 (not Paragraph 17) of the commitment letter. Such requests by the parties indicate a disputed issue on performance in connection with other obligations, or paragraphs, under the letter. When the jury answered the issue on performance, a question arises regarding whether the jury found Island performed Paragraph 15 of the commitment letter or whether the jury also found Republic waived its right to enforce Paragraph 15 and various other paragraphs of the commitment letter. There is no way to determine what the jury may or may not have found.
To hold that the submitted issue includes waiver, the majority must read “obligations under the commitment letter” as “obligations under the commitment letter that Republic did not waive.” The merits of broad issue submissions aside, this court should not rewrite an issue so as to include an independent ground of recovery never mentioned in the charge.
Island also contends Republic is estopped to deny the condition was waived. The primary element of estoppel is a false representation or concealment of material facts. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Island does not contend Republic made any false representation or intentionally concealed facts. Further, the evidence does not establish such conduct.
Neither waiver nor estoppel was conclusively established. In addition, Island failed to preserve its error to challenge the trial court‘s refusal to submit an issue on waiver or estoppel. Therefore, because it is undisputed that Island did not file the applications by August 15, Republic was relieved of its obligations to perform under the loan commitment.