Opinion
No. 08-20-00135-CV
08-25-2022
Theodis and Maria BRUCE, Virginia and Sergio Cordova, Victor Corral, Jose Dominguez, Magdalena Juarez, Bernarda Lopez, Elisa Negrete, Maria Reyes, Luis Velazquez, Jose Valdez, Antonio and Maria Salgado, and Iris Jordan, Appellants, v. OSCAR RENDA CONTRACTING, Appellee.
ATTORNEY FOR APPELLANTS: Andrew B. Bender, The Bender Law Firm PLLC, 1911 Southwest Fwy, Houston, TX 77098. ATTORNEY FOR APPELLEE: Oscar A. Lara, Rincon Law Group, P.C., 1014 North Mesa, Ste. 200, El Paso, TX 79902.
ATTORNEY FOR APPELLANTS: Andrew B. Bender, The Bender Law Firm PLLC, 1911 Southwest Fwy, Houston, TX 77098.
ATTORNEY FOR APPELLEE: Oscar A. Lara, Rincon Law Group, P.C., 1014 North Mesa, Ste. 200, El Paso, TX 79902.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
GINA M. PALAFOX, Justice Appellants are multiple El Paso homeowners (the Homeowners) who successfully sued Appellee Oscar Renda Contracting (Renda Contracting) for damages to their homes resulting from a construction project performed by Renda Contracting in their neighborhood. The Homeowners assert the trial court erred when it impliedly denied their motion for judgment which attached a proposed judgment conforming with the jury's award of exemplary damages. Because the trial court did not have authority to disregard the jury's verdict without a motion requesting such relief, and because the record does not support a finding that the jury failed to unanimously agree on the issue of exemplary damages, we conclude the trial court erred in so ruling. We therefore reverse the trial court's decision to disregard the exemplary damages awarded and remand to the trial court with instructions to enter a judgment in harmony with the jury's verdict to include an award of exemplary damages in the amount set forth by the jury's verdict.
Renda Contracting filed an untimely notice of appeal, which this Court previously dismissed for want of jurisdiction. See Bruce v. Oscar Renda Contracting , No. 08-20-00135-CV, 2020 WL 6255409, at *2 (Tex. App.—El Paso Oct. 23, 2020, no pet.) (mem. op.). Accordingly, the remainder of the jury's verdict is not at issue.
I. BACKGROUND
A. The Homeowners’ lawsuit
Renda Contracting performed a storm water project for the City of El Paso that included excavating trenches in the Homeowners’ neighborhood. In this lawsuit, the Homeowners alleged that Renda Contracting's activities damaged their homes due to the "vibrations caused by their excavators." They brought claims for negligence, gross negligence, fraud, trespass to real property, negligent misrepresentation, private nuisance, and damage to real property.
At trial, the Homeowners testified about damages occurring to their homes during the construction project, and multiple Homeowners testified that they, or their family members, reported their concerns to Renda Contracting's employees, but their complaints were ignored. Additionally, both parties presented expert witness testimony on whether Renda Contracting's activities caused the damages claimed by the Homeowners.
B. The jury questions
At the close of evidence, the jury was given instructions then asked a series of questions on the several theories of liability asserted by the Homeowners. Among the list of 11 instructions given for answering questions, instruction number 11 stated:
Unless otherwise instructed, the answers to the questions must be based on the decision of at least 10 of the 12 jurors. The same 10 to 12 jurors must agree on every answer: Do not agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority.
In Question 1, the jury was asked: "Did the negligence, if any, of Oscar Renda Contracting proximately cause the injury in question?" The jury answered "Yes" to this question. In Question 2, the jury affirmatively answered that Renda Contracting trespassed on each of the Homeowners’ properties, but in Question 3, the jury found that none of the trespasses were intentional. In Question 4, the jury found that Renda Contracting intentionally created a private nuisance for each of the Homeowners. In Question 5 the jury also found that Renda Contracting negligently created that nuisance. Question 6 then asked the jury to find damages for each of the Homeowners. The jury filled in varying amounts for each of the Homeowners, ranging from $11,805.14 to $23,309.20, for a total of $237,086.75 in actual damages.
Relevant to this appeal and the issue of exemplary damages, the jury was asked two additional questions. First, Question 7 asked the jury, "Do you find by clear and convincing evidence that the harm to Plaintiffs resulted from gross negligence?" The conditioning instruction for Question 7 required unanimity in answering the question as follows:
Answer Question 7 only if you unanimously answered "Yes" to Question 1 regarding Oscar Renda Contracting . Otherwise, do not answer Question 7.
To answer "Yes" to Question 7, your answer must be unanimous. You may answer "No" to Question 7 only upon a vote of ten or more jurors. Otherwise, you must not answer the following question."
The jury answered question 7, "Yes." Second, Question 8 asked: "What sum of money, if any, should be assessed against Oscar Renda Contracting and awarded to Plaintiffs as exemplary damages for the conduct found in response to Question 1?" After being told to only answer Question 8, if it answered "Yes" to Question 7, the jury assessed exemplary damages at $75,000 "for each [plaintiff]," for a total of $825,000 in exemplary damages. No other questions were asked in the jury charge.
C. The verdict certificate
As part of the jury charge, the trial court provided the jury with instructions on how to sign the verdict certificate. The certificate instructions read as follows:
1. You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree on every answer in the charge. This means you may not have one group of 10 jurors agree on one answer and a different group of 10 jurors agree on another answer.
2. If 10 jurors agree on every answer, those 10 jurors sign the verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If all 12 of you agree on every answer, you are unanimous and only the presiding juror signs the verdict.
3. All jurors should deliberate on every question. You may end up with all 12 of you agreeing on some answers, while only 10 or 11 of you agree on other answers. But when you sign the verdict, only those 10 who agree on every answer will sign the verdict.
The jury certificate in this instance provided four options as follows: one line could be checked if the verdict was unanimous, meaning "All 12 of us have agreed to each and every answer." Another line was to be checked if the verdict was not unanimous but "Eleven of us have agreed to each and every answer[.]" A third line—and the one checked here—states: "Our verdict is not unanimous. Ten of us have agreed to each and every answer and have signed the certificate below." Additionally, ten of the jurors signed the form. A fourth option read: "As to Questions 10, 11, 12, and 13, our verdict is unanimous." The jury did not check the fourth option as this charge did not include any question numbered 10, 11, 12, or 13.
When the jury returned its verdict, the trial court read aloud the entire signed verdict, including the jury's answers to all eight questions, as well as the certificate stating the verdict was not unanimous. Then, at the request of the Homeowners’ attorney, the trial court polled the jurors, asking if the verdict just read was their "individual verdict" to which ten jurors answered "Yes" and two said, "No." The jury was then discharged without objection from either party.
D. Renda Contracting's objection to the proposed judgment
The Homeowners later moved for entry of judgment on the verdict, attaching a proposed judgment that included awards for both actual damages and exemplary damages in the amounts set forth in the jury's verdict. Renda Contracting filed a response to the motion which included objections raised against the proposed judgment. Primarily, it argued that the judgment could not properly include an award of exemplary damages because, it contended, the "verdict was not unanimous" as required for such award. The Homeowners responded to the objection, asserting that although the certificate reflected that 10 jurors had agreed to each and every answer and signed the certificate, the verdict itself also included answers to Questions 1, 7 and 8, which were conditioned on unanimity as instructed in Question 7. The trial court entered a final judgment which disregarded the jury's award of exemplary damages. This appeal followed.
II. ISSUES ON APPEAL
In two issues on appeal, the Homeowners contend the trial court's refusal to conform the judgment to the jury's verdict necessarily led to the rendition of an improper judgment. Specifically, they argue: (1) Renda Contracting waived error, if any, by not objecting at the charge conference on the basis that jury questions on exemplary damages lacked unanimity instructions; and (2) even if this Court looks past such waiver, Renda Contracting failed to prove the jury did not answer the exemplary damages unanimously. Renda Contracting counters that the trial court properly omitted the exemplary damages award, contending the verdict certificate established a lack of unanimity on those findings. Furthermore, in what we construe to be a cross-point, Renda Contracting asserts that we should uphold the trial court's omission of the award as there was insufficient evidence to support the jury's finding of gross negligence.
We address these arguments in turn.
III. THE JURY UNANIMITY REQUIREMENT
A. Standard of Review
We review a trial court's entry of judgment on a jury verdict as a question of law. Arbor Windsor Ct., Ltd. v. Weekley Homes, LP , 463 S.W.3d 131, 136 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (noting that determining the legal effect of the jury's answers is a question of law). More specifically, we treat a trial court's legal conclusion that a jury's verdict was not unanimous as a question of law, which we review de novo, and we will uphold the judgment if it can be sustained on any legal theory supported by the evidence. See Trish Deatley v. Rodriguez , 246 S.W.3d 848, 850 (Tex. App.—Dallas 2008, no pet.). "[Q]uestions of law are always subject to de novo review." In re Humphreys , 880 S.W.2d 402, 404 (Tex. 1994).
B. Applicable Law
Although a verdict in district court may generally be based on a vote of as few as 10 jurors, to support an award of exemplary damages the jury must unanimously agree on the following three key issues: (1) the plaintiff's underlying theory of liability; (2) any additional conduct committed by the defendant, such as malice or gross negligence, that would support an exemplary damages award; and (3) the amount of the exemplary damages awarded. See TEX. R. CIV. P. 226a ; Cowboys Concert Hall-Arlington, Inc. v. Jones , No. 02-12-00518-CV, 2014 WL 1713472, at *12 (Tex. App.—Fort Worth May 1, 2014, pet. denied) (mem. op.) (recognizing the three unanimity requirements for an award of exemplary damages as set forth in Rule 226a ); see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(d) ("Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages."); TEX. R. CIV. P. 292(b) (a verdict may be rendered awarding exemplary damages only if the jury was unanimous in finding liability for and the amount of exemplary damages).
Regarding the number of jurors, a jury in district court is composed of 12 persons. See Tex. Const. art 5, § 13 ; Tex. Gov't Code Ann. § 62.201 ; Tex. R. Civ. P. 292(a). In contrast, a jury in a constitutional county court, a county court at law, or in the justice courts is composed of six persons except as otherwise provided by the constitution or other law. See Tex. Const. art 5, § 17 ; Tex. Gov't Code Ann. §§ 25.0007(b), 62.301 ; Tex. R. Civ. P. 504.2(f).
The Texas Supreme Court has promulgated a standard jury charge set forth in rule 226a, to be given with such modifications as the circumstances of the particular case may require, including cases in which exemplary damages will be submitted to the jury. See TEX. R. CIV. P. 226a ; Cullum v. White , 399 S.W.3d 173, 188 (Tex. App.—San Antonio 2011, pet. denied) (recognizing that rule 226a sets forth the instruction regarding unanimous verdicts approved by order of the Texas Supreme Court); see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(d) (requiring the trial court to instruct the jury in all cases in which the issue of exemplary damages is submitted to the jury that "in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous"). The standard charge includes instructions informing the jury it must unanimously agree the defendant is liable to the plaintiffs and that gross negligence or malice exists, in order to award dollar amounts for exemplary damages.
Rule 226a further provides that a trial court must give the jury a general verdict certificate form allowing it to certify that its verdict was unanimous, or alternatively, that 10 or 11 of the jurors "have agreed to each and every answer and have signed the certificate below." TEX. R. CIV. P. 226a. In addition, in cases in which there are "some questions [that] require unanimous answers," rule 226a requires the trial court to give the jury an "additional certificate" to be signed by the presiding judge, as modified for the requirements of the trial court level:
I certify that the jury was unanimous in answering the following questions. All 12 [6] of us agreed to each of the answers. The presiding juror has signed the certificate for all 12 [6] of us. [Judge to list questions that require a unanimous answer, including the predicate liability question.].
Thus, rule 226a clearly contemplates a situation in which a jury may not agree on each and every question asked in a jury charge, but where it may nevertheless unanimously agree on certain findings as needed to award exemplary damages. See generally Mem'l Hermann Health Sys. v. Gomez , 584 S.W.3d 590, 622 (Tex. App.—Houston [1st Dist.] 2019, pet. granted) (upholding award of exemplary damages where jury's certificate form indicated that its verdict was not entirely unanimous as to each and every answer, but where it stated in its special certificate that its exemplary damages findings were unanimous).
C. Analysis
Assigning error to the trial court's implied denial of their motion for judgment, the Homeowners argue in this appeal that the trial court rendered an improper judgment by disregarding the jury's finding on exemplary damages. See TEX. R. CIV. P. 301. We consider the Homeowners’ first and second issues together to determine whether the trial court erred in impliedly denying the Homeowners’ motion for judgment.
To start, the Homeowners rightly point out in their first argument that Renda Contracting did not object to questions pertaining to exemplary damages before the charge was read to the jury, and therefore waived any challenge it might bring to the jury charge on that basis. See TEX. R. CIV. P. 272 (all objections to a jury charge not presented to the trial court prior to reading the charge to the jury "shall be considered as waived."); TEX. R. CIV. P. 278 ("Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment."); Murphy v. American Rice, Inc. , No. 01-03-01357-CV, 2007 WL 766016, at *21 (Tex. App.—Houston [1st Dist.] Mar. 9, 2007, no pet.) (mem. op.) (defendant waived its challenge to the trial court's failure to instruct the jury on the need for unanimity with respect to its award of exemplary damages where the defendant failed to timely object to the omission of the instruction); Fitzerman v. Classic Americana, LLC , No. 05-15-00528-CV, 2016 WL 1450165, at *10 (Tex. App.—Dallas Apr. 13, 2016, no pet.) (mem. op.) (defendant waived any error created by the omission of unanimity instructions in the jury charge by failing to timely object to the charge on that basis).
Here, the trial court informed the jury that before it could award exemplary damages, it was required to unanimously agree that Renda Contracting was liable for the harm caused to the Homeowners, and that such harm further resulted from Renda Contracting's gross negligence (Questions 1 and 7). The bottom of Question 7 gave further instructions about proceeding to Question 8. The instruction stated, "If you have answered ‘Yes’ to Question 7, then answer Question 8. Otherwise, do not answer Question 8." The instruction included on Question 8, however, did not otherwise inform the jury that it was similarly required to unanimously agree on the amount of the exemplary damages to be awarded, and instead Question 8 only instructed the jury to fill in the amount of exemplary damages, if any, it believed should be awarded in dollars and cents. As to the answer to Question 8, the jury filled in the blank provided with the following: Answer: "$75,000 for each [plaintiff] total of $825,000."
This waiver argument appears to be a moot point, however, as Renda Contracting did not raise any challenge to the jury charge in its post-verdict objection included in its response to the Homeowners’ proposed judgment. Nor does Renda Contracting argue in this Court that a charge error supports the trial court's disregard of exemplary damages from the final judgment. To the contrary, in its brief, Renda Contracting acknowledges that any error in the jury charge with regard to Question 8 was "harmless," and it otherwise appears satisfied that the trial court properly instructed the jury of the need for unanimity in awarding exemplary damages. Thus, we are not persuaded by the Homeowners’ initial argument on waiver of jury charge error.
The dissent states we understate several errors that exist with the jury charge. However, any possible issues with the jury charge are not before this Court. See Tex. R. Civ. P. 272 (stating all objections to a jury charge not presented to the trial court prior to reading the charge to the jury "shall be considered as waived"). Furthermore, appellate courts are to presume the jury followed the jury instructions. Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 862 (Tex. 2009) ("The jury is presumed to have followed the court's instructions.").
For three other reasons, we conclude the trial court erred when it disregarded the jury's verdict awarding exemplary damages: (1) only the Homeowners made a request for the court to sign a proposed judgment, and their motion preserved error for review, (2) Renda Contracting's complaint about the jury verdict—which it first raised in its response to the Homeowners’ motion for judgment—should have been brought at a time before the jury was discharged by the court, and (3) even if Renda Contracting's response is otherwise construed as a motion to disregard the jury's findings on exemplary damages, it nonetheless failed to conclusively establish that the jury awarded exemplary damages without having reached unanimity on the required questions.
1. No motion was filed requesting a judgment disregarding the jury's verdict on exemplary damages
In relevant part, Rule 301 of the Texas Rules of Civil Procedure provides: "The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict[.]" TEX. R. CIV. P. 301. Continuing, this rule includes an exception: "Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence." Id. Thus, a motion for JNOV preserves the "no evidence" and "as a matter of law" points for appeal. Relevant to this appeal by the Homeowners, a motion for judgment preserves error in the event the trial court modifies or rejects the proposed judgment. Emerson v. Tunnell , 793 S.W.2d 947, 947-48 (Tex. 1990).
The trial court cannot disregard a material jury finding on its own initiative—it can do so only on a written motion. TEX. R. CIV. P. 301 ; Law Offices of Windle Turley, P.C. v. French , 140 S.W.3d 407, 414 (Tex. App.—Fort Worth 2004, no pet.) ; see also Lamb v. Franklin , 976 S.W.2d 339, 343 (Tex. App.—Amarillo 1998, no pet.) ("Because the record does not reflect that a motion for judgment non obstante veredicto was filed, or that a hearing on such motion was had, we conclude that the trial court erred in granting such relief."). In other words, where a trial court renders a modified judgment or judgment non obstante veredicto, it must act pursuant to a motion, and provide notice and a hearing. Lamb , 976 S.W.2d at 343. However, "upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence." Id. (quoting TEX. R. CIV. P. 301 ).
Following the jury's verdict, the Homeowners filed a motion to enter judgment and attached a proposed judgment. In response, Renda Contracting filed a response and objections to the proposed judgment asserting the jury's verdict on exemplary damages was not unanimous. No attachment or exhibit was included with the response nor was a request made to the trial court to sign a counter judgment that disregarded jury findings. Renda Contracting simply requested that the trial court sustain its objections. In reply, the Homeowners procedurally objected to the response, asserting it was untimely given that Renda Contracting waited until the hearing before filing it. The Homeowners additionally argued they were not given sufficient notice and a hearing on Renda Contracting's objection. Addressing Renda Contracting's objections in substance, the Homeowners also urged that the jury's findings and award of exemplary damages were in fact unanimous and, if a conflict existed with the jury's certification, that Renda Contracting waived such conflict by not raising that point before the court discharged the jury from the case. Ultimately, the trial court entered a final judgment, which, in substance, disregarded the jury's findings on exemplary damages. In their brief, the Homeowners assert "the trial court's refusal to conform the judgment to the verdict necessarily led to the rendition of an improper judgment," citing to rule 301.
Here, a basis for reversal of the trial court's implied ruling is that Renda Contracting did not file any motion requesting the trial court to disregard the jury's findings on exemplary damages, but only objected to the Homeowners’ proposed judgment. See TEX. R. CIV. P. 301 ; see also French , 140 S.W.3d at 414 ("If the record does not reflect the motion, notice, and hearing, ‘a judgment disregarding the verdict or specific findings under Rule 301 will be reversed.’ " (quoting Franklin , 976 S.W.2d at 343 )). Both parties treated the jury's verdict as if it had been returned without conflict. Although Renda Contracting raised a conflict issue after the jury's discharge, it did so only in a response to the Homeowners’ motion. Without a proper motion from Renda Contracting, however, the trial court lacked authority to disregard jury findings on exemplary damages. See TEX. R. CIV. P. 301 ; French , 140 S.W.3d at 414 ; Franklin , 976 S.W.2d at 343.
2. Renda Contracting's argument was previously waived
Even if we construe Renda Contracting's response and objection as an objection to the jury's verdict, the argument should have been brought prior to the jury being discharged from the case. Rule 295 provides that when a jury's verdict is incomplete, nonresponsive, or the jury's answers are in conflict, the trial court shall in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and retire the jury for further deliberations. See TEX. R. CIV. P. 295. " ‘What the jury intended by findings that potentially conflict is best determined by the jury itself,’ and that is the solution rule 295 requires." USAA Texas Lloyds Co. v. Menchaca , 545 S.W.3d 479, 518 (Tex. 2018) (quoting Springs Window Fashions Div., Inc. v. Blind Maker, Inc. , 184 S.W.3d 840, 867 (Tex. App.—Austin 2006, pet. granted) ).
Renda Contracting argued the award of exemplary damages was improper because the jury did not return a unanimous verdict. It based this argument on an assertion that only 10 of the 12 jurors signed the verdict certificate; and, in that form, the certificate conflicted with answers given to questions instructing the jury not to answer certain questions unless there was unanimity among all jurors. We disagree.
Rule 226a provides that in a case in which exemplary damages are at issue, a trial court must give a jury both a general verdict certificate indicating whether its verdict was unanimous as to each and every question asked, as well as an "additional certificate," indicating whether it nevertheless unanimously agreed in answering the questions asked in support of an exemplary damages award. TEX. R. CIV. P. 226a. Here, due to an apparent error in numbering the questions, the trial court did not provide the jury with any such additional certificate and did not give the jurors the option of certifying that its answers to the liability, gross negligence, and exemplary damages questions were unanimous. Thus, no certification question asked the jury to certify that unanimity was reached on all matters requiring unanimity.
Nevertheless, Renda Constructing was required to lodge an objection pursuant to rule 295 of the Texas Rules of Civil Procedure before the jury was discharged. If a timely objection had been made, the trial court could have provided the jury with an amended verdict form, thereby giving the jurors the option to certify that they had (or had not) unanimously agreed on the issue of exemplary damages. See Fleet v. Fleet , 711 S.W.2d 1, 3 (Tex. 1986) (stating when faced with a verdict which left material issues supported by some evidence unanswered, the trial court must instruct the jury to deliberate further on the issues); Bryan v. Papalia , 542 S.W.3d 676, 692-93 (Tex. App.—Houston [14th Dist.] 2017, rev. granted, judgm't vacated w.r.m.) (approving trial court's decision to send jury back for further deliberations to clarify and amend its verdict certificate where the certificate indicated that the jury did not answer questions regarding the defendant's liability unanimously, but its answers to the questions set forth in the jury charge established they did).
Because Renda Contracting failed to raise an objection at the proper time, we conclude that the trial court had no authority to entertain the objection when it did, even if we construe the response to the motion for judgment as a motion for judgment notwithstanding the verdict. See Menchaca , 545 S.W.3d at 515–16 (recognizing that a party must object in the trial court to incomplete or unresponsive jury verdicts, as well as to conflicting jury answers, before the jury is discharged, or the challenge is waived).
The dissent cites to Redwine v. Peckinpaugh , 535 S.W.3d 44 (Tex. App.—Tyler 2017, no pet.), as persuasive authority. Yet we conclude the facts are distinguishable. There, the court held that, defendant's objection to exemplary damages in a post judgment motion preserved error, when the jury had expressly set forth in the charge that the verdict was not unanimous and only agreed upon by eleven jurors. Id. at 47-48. In Redwine , the underlying claim was for defamation where the jury was presented with seven different statements and needed to answer (1) whether the statements were made by the defendant, (2) whether the statements were false, and (3) whether the defendant knew or should have known, in the exercise of ordinary care, that the statements were false and had the potential to be defamatory. Id. at 48. The jury answered in the affirmative to each question for all seven statements. Id. In addition to other damages awarded, the jury awarded exemplary damages. Id. The defendant argued the exemplary award was not proper because the jury was not unanimous. Id. at 51. The Tyler Court of Appeals concluded the record showed the jury verdict was not unanimous because, although the jury answered the exemplary damages question containing the proper predicates on unanimity, the jury had certified otherwise that the verdict was not unanimous. Id. at 52. Polling of the jury also confirmed the absence of unanimity. Id. As contrasted from this case, the key distinction in the Redwine case is that the jury had only been tasked with deciding a single cause of action, namely, a claim of defamation. Id. at 48. There was no other way to reconcile the jury's certification that it had not reached a unanimous decision, other than to interpret the certification by its plain words. In this case, the jury was asked to answer liability questions regarding a mix of several causes of action to include a claim of gross negligence that itself required jury unanimity. Because the jury was instructed to only answer the gross negligence question, and the exemplary damages award question if unanimity was reached, we must presume it did so by following the instructions. Hawley , 284 S.W.3d at 862 ("The jury is presumed to have followed the court's instructions.").
We conclude that the jury's certification at issue here does not have the same conclusive effect as it did in Redwine , given that this jury was permitted to answer several questions by a 10 to 2 vote, unless otherwise instructed to only answer upon reaching unanimity.
3. Even if Renda Contracting's response is construed as a motion to disregard the jury's verdict, said motion failed to establish the jury verdict was not unanimous as to questions requiring unanimity
Lastly, when looking at the jury's verdict as a whole, as we must, Renda Contracting failed to conclusively prove the verdict was not unanimous. While the verdict certificate indicated that only 10 out of the 12 jurors "agreed to each and every answer and have signed the certificate below," the certificate failed to further ask whether all 12 jurors unanimously agreed on answers that required unanimity such as the question on gross negligence and the award of exemplary damages. In fact, the jury was asked at least five questions pertaining to the other causes of action upon which the jury did not need unanimity to reach a proper verdict. In addition to the questions regarding Renda Contracting's liability and gross negligence, the jury was asked (1) whether it had trespassed on the property of each plaintiff; (2) whether the trespass was intentional with respect to each plaintiff; (3) whether its actions constituted a private nuisance, and if so, whether its actions were intentional or negligent with respect to each plaintiff; and (4) the amount of actual damages to which each plaintiff was entitled. The jurors could have not reached unanimity on any number of these issues, while still unanimously agreeing on the key issues of liability and gross negligence in support of an exemplary damages award.
Nevertheless, the jury charge expressly instructed the jury that it was required to unanimously agree on Questions 1 (whether Renda Contracting's negligence proximately caused the injury) and 7 (whether the harm resulted from gross negligence) before it could award exemplary damages. Additionally, Question 7 instructed the jury to only answer the question if they unanimously answered "Yes" to Question 1. The jury was also instructed to only answer "Yes" to Question 7 if the answer was unanimous. Because the jury did in fact award such damages, we must presume that it correctly followed these instructions and thereby based its exemplary damages award on a unanimous vote, despite its lack of unanimity on other questions contained in the charge. See generally Hawley , 284 S.W.3d at 862 (noting that unless the record demonstrates otherwise, appellate courts must presume the jury followed instructions given in the jury charge (citing Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 771 (Tex. 2003) ). Because the jury was never given the opportunity to clarify whether it unanimously agreed on the issue of exemplary damages, we must reconcile any ostensible conflict between its verdict certificate and its answers to the questions in the jury charge in a manner that supports its award of exemplary damages. See Menchaca , 545 S.W.3d at 509 (recognizing that a court must "reconcile apparent conflicts in the jury's findings" in a way that harmonizes them, if reasonably possible); Metro Allied Ins. Agency, Inc. v. Lin , 304 S.W.3d 830, 837 (Tex. 2009) (courts must "indulge all reasonable inferences in favor of the jury's verdict"). Viewing the jury's verdict as a whole presents evidence of unanimity.
Finally, Renda Contracting relies on a case for the proposition that the trial court properly omitted the exemplary damages award. See, e.g., Miller v. Argumaniz , 479 S.W.3d 306, 315 n.9 (Tex. App.—El Paso 2015, pet. denied). However, in that case, the jury acknowledged that it did not unanimously agree on the issue of the defendant's liability. Id. (recognizing in dicta that an award of exemplary damages could not stand where the plaintiff expressly conceded that the jury did not unanimously agree on the issue of the defendant's liability). Given that acknowledgment, the court found an exemplary damages award was clearly improper. Id. In the present case, however, no such acknowledgment appears in this record.
It is true that the Homeowners were responsible for obtaining all the needed findings to support the award they sought. See United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 481 (Tex. 2017) (stating the plaintiff bears the burden to obtain affirmative answers to jury questions as to the necessary elements of the plaintiff's cause of action). In this case, the Homeowners did just that. The jury's verdict as a whole demonstrates the jury made all requisite findings, including a unanimous affirmative finding on liability, gross negligence, and exemplary damages. We conclude that Renda Contracting failed to conclusively prove the lack of unanimity.
For all these reasons, we conclude the trial court erred in disregarding the jury's findings. We sustain the Homeowners’ first and second issue.
IV. RENDA CONTRACTING'S CROSS-POINT
When a judgment disregarding a jury's verdict is entered, an appellee may bring a cross-point in its brief on "any ground which would have vitiated the verdict or would have prevented an affirmance of the judgment had one been rendered by the trial court in harmony with the verdict, including although not limited to the ground that one or more of the jury's findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact ... [.]" See TEX. R. CIV. P. 324(c) ; see also Dudley Constr., Ltd. v. Act Pipe & Supply, Inc. , 545 S.W.3d 532, 538-39 (Tex. 2018) ; Miller v. Bock Laundry Mach. Co. , 568 S.W.2d 648, 652 (Tex. 1977). Here, Renda Contracting argues that even if we were to conclude that the jury's verdict was unanimous on the issue of exemplary damages, we should nevertheless affirm the trial court's judgment on the alternative ground that there was insufficient evidence to support the jury's finding of gross negligence. An appellee's argument will be treated as a cross-point even if it is not formally labeled as such, as long as the appellee makes "a substantive argument that would, if accepted, vitiate the jury's original verdict or prevent an affirmance of the judgment had one been rendered in harmony with the jury's verdict, it has presented a cross-point sufficient to avoid waiver." Dudley Constr. , 545 S.W.3d at 538. Considering its cross-point, we do not find that Renda Contracting has made a meritorious argument on this point.
We note here that Renda Contracting initially criticizes the Homeowners for not addressing this issue in their brief. However, as the Homeowners point out, Renda Contracting did not raise this issue in the court below when objecting to the Homeowners’ proposed judgment. Instead, its response only raised an issue questioning the unanimity of the jury's verdict on exemplary damages. Accordingly, the Homeowners were under no obligation to brief any issues regarding the sufficiency of the evidence to sustain their point of error.
A. Standard of review and applicable law
In a legal-sufficiency review, "we determine whether more than a scintilla of evidence supports the jury's finding by considering evidence favorable to the finding if a reasonable fact-finder could and disregarding evidence contrary to the finding unless a reasonable fact-finder could not." Horizon Health Corp. v. Acadia Healthcare Co. , 520 S.W.3d 848, 859 (Tex. 2017). In a factual sufficiency challenge, an appellate court must "consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust—this, regardless of whether the record contains some evidence of probative force in support of the verdict." Jackson , 116 S.W.3d at 761 (quoting In re King's Estate , 150 Tex. 662, 244 S.W.2d 660, 661 (1951) ).
Renda Contracting points out that gross negligence consists of two components: "(1) viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others." Lee Lewis Const., Inc. v. Harrison , 70 S.W.3d 778, 785 (Tex. 2001).
B. Analysis
Renda Contracting contends that the Homeowners did not present any evidence to establish either element of their claim for gross negligence, and that to the contrary, the undisputed evidence in the record conclusively establishes that it did not engage in any acts of gross negligence. Renda Contracting finds it significant that the construction project was overseen by a third party, that the third party issued daily inspection reports that did not disclose any "issues" with its performance, and that it successfully fulfilled all of its contractual obligations in the performance of its portion of the project. While the jury could have relied on this evidence to support a finding that Renda Contracting exercised some degree of care in performing its duties, Renda Contracting cites no authority for the proposition that it conclusively establishes the opposite, i.e., the absence of gross negligence. See generally Harrison , 70 S.W.3d at 785 (although evidence of simple negligence is not enough to prove the elements of gross negligence, "some evidence of care does not defeat a gross-negligence finding"); Forester v. El Paso Elec. Co. , 329 S.W.3d 832, 837-38 (Tex. App.—El Paso 2010, no pet.) (same). As the Homeowners’ expert witness agreed, the fact that a project was completed on time and on budget does not "necessarily mean" people's homes were not damaged during the process. In addition, the fact that the third party tasked with overseeing Renda Contracting's work may not have been aware that Renda Contracting's activities posed a risk of damage to the Homeowners—or simply chose to overlook this problem in its daily reports—this does not mean that Renda Contracting itself was not aware of that risk. In fact, the record contains ample evidence from which a jury could have reasonably inferred that Renda Contracting was both objectively and subjectively aware of the risks of its activities.
With regard to the objective component, the Homeowners presented expert witness testimony that Renda Contracting used a method known as "pile driving" to perform its portion of the construction project, in which the construction employees used the bucket of a large excavator to hammer steel plates into position in an area being excavated. The Homeowners’ experts testified that pile driving, while saving time compared to other alternative excavation methods, was known in the industry to be "very destructive." The expert stated it causes "excess vibrations," which in turn can cause a "lot of vibrational damage." Further, in this instance, the pile driving did in fact cause "major damage" to the Homeowners’ residences. Although Renda Contracting denied engaging in pile-driving—an issue that the jury was entitled to resolve in the Homeowners’ favor—its own safety director testified that if used, this method would "absolutely" cause damage to the surrounding area, as it is known to cause vibrations. See generally City of Keller v. Wilson , 168 S.W.3d 802, 820 (Tex. 2005) (providing it is the province of the jury to resolve conflicts in the evidence, and in determining whether the evidence supports a jury's verdict, and we must assume that the jurors resolved all conflicts in accordance with that verdict). He further testified that Renda Contracting's own policies therefore prohibited it from using pile driving without having a professional engineer assess the effects that using this method would have in the area, which it did not do in this instance.
This evidence is sufficient to support a finding that Renda Contracting was aware of the risks involved in its activities from an objective standpoint. Additionally, although Renda Contracting denied having subjective knowledge that its activities posed any risk of damage to the Homeowners, multiple Homeowners testified that either they, or their family members, reported the ongoing damage that Renda Contracting's activities were causing to their homes to Renda Contracting's on-site foreman, its superintendent, and other employees during the course of the construction project, but that their reports were ignored.
In its cross-point, Renda Contracting neither addresses nor explains why this evidence was not sufficient to allow the jury to reasonably infer that it was both objectively and subjectively aware of the extreme risk of harm its activities posed to the Homeowners, but that it nevertheless proceeded with its activities in conscience indifference to their rights, welfare, and safety. Accordingly, viewed in the light most favorable to the jury's findings, we conclude that the evidence presented at trial was both factually and legally sufficient to allow a jury to reasonably conclude that Renda Contracting's activities rose to the level of gross negligence. See Harrison , 70 S.W.3d at 785 (evidence of gross negligence is legally sufficient if, considered as a whole in the light most favorable to the prevailing party, it rises to a level that would enable reasonable and fair-minded people to differ in their conclusions).
We overrule Renda Contracting's cross-point. V. CONCLUSION
We conclude that the trial court erred in disregarding the jury's award of exemplary damages, and further conclude there is no merit to Renda Contracting's cross-point. Accordingly, we reverse the trial court's judgment and remand to the trial court for further proceedings with instructions for the court to enter a judgment consistent with this opinion. All pending motions are denied as moot.
Alley, J., dissenting
DISSENT
JEFF ALLEY, Justice
I respectfully dissent. I part ways with the majority opinion on four issues. First, the majority opinion understates the several errors in the jury charge. Second, the opinion misallocates the burden for ensuring that the jury charge, and jury's answers, meet the minimum standards for awarding punitive damages. Third, the opinion relies on a waiver theory that was not raised below or made in the briefing to this Court. And finally, application of the correct standard of review demonstrates that we cannot tell whether the jury unanimously agreed to award punitive damages, a prerequisite for their recovery under Texas law. I would affirm the decision of the trial court below.
The Charge
As a prerequisite for recovery of punitive damages, the Texas Legislature requires that a jury must unanimously find all the necessary elements for such an award. TEX.CIV.PRAC. & REM.CODE ANN. § 41.003 (d) ("Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages."). The addition of this requirement in 2003 required some tinkering with the standard language used in jury charges. So in early 2005, the Texas Supreme Court adopted revised standard jury instructions that are found in an addendum to Rule 226a. TEX.R.CIV.P . 226a ("[t]he court must give instructions to the jury panel and the jury as prescribed by order of the Supreme Court under this rule."). Those "Approved Instructions" harmonize a jury charge's general deliberation instruction that allows for a 10-2 verdict and the need for unanimous findings on exemplary damage questions. One of the approved jury deliberation instructions in Rule 226a reads:
The unanimity requirement was part of the 2003 tort reform effort. Act of June 2, 2003, 78th Leg., R.S., ch. 204 § 13.02, 2003 Tex.Gen.Laws 847, 888 (current version at Tex.Civ.Prac. & Rem.Code Ann. § 41.003 (d) ).
See Supreme Court of Texas Admin. Order, Amendments to Texas Rules of Civil Procedure 281 and 284 and to the Jury Instructions under Texas Rule of Civil Procedure 226A, Misc. Docket No. 11-9047 (Mar. 15, 2011) (text of Approved Instruction for the jury charge are included under header III. in the historical note); see also Cullum v. White , 399 S.W.3d 173, 188 (Tex.App.--San Antonio 2011, pet. denied) (recognizing that Rule 226a sets forth the instruction on unanimous verdicts approved by order of the Texas Supreme Court).
11. [Unless otherwise instructed] The answers to the questions must be based on the decision of at least 10 of the 12 jurors. The same 10 [5] jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 10 [5] jurors, even if it would be a majority.
Id. The bracketed text, "[Unless otherwise instructed]," should be used when exemplary damages are submitted to the jury to account for the conditioning instruction that must accompany the exemplary damages questions, which requires unanimous answers. Id.
The bracketed options also allow for the difference between twelve person and six person juries.
Also part of the jury charge, a trial court provides the jury with other instructions on how to sign the verdict certificate. Those instructions were also modified in the 2005 revision to Rule 226a to account for one or more questions that might require unanimity. The correct verdict certificate instructions should read as follows (with the bracketed additions used for cases requiring unanimity and for cases with six person juries):
1. [Unless otherwise instructed] You may answer the questions on a vote of 10 [5] jurors. The same 10 [5] jurors must agree on every answer in the charge. This means you may not have one group of 10 [5] jurors agree on one answer and a different group of 10 [5] jurors agree on another answer.
2. If 10 [5] jurors agree on every answer, those 10 [5] jurors sign the verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If all 12 [6] of you agree on every answer, you are unanimous and only the presiding juror signs the verdict.
3. All jurors should deliberate on every question. You may end up with all 12 [6] of you agreeing on some answers, while only 10 [5] or 11 of you agree on other answers. But when you sign the verdict, only those 10 [5] who agree on every answer will sign the verdict.
4. [Added if the charge requires some unanimity] There are some special instructions before Questions ___ explaining how to answer those questions. Please follow the instructions. If all 12 [6] of you answer those questions, you will need to complete a second verdict certificate for those questions.
Id.
The charge used here did not incorporate all the 2005 modifications to the jury charge instructions required by the Texas Supreme Court. The general deliberation instruction did include the bracketed [Unless otherwise instructed] language. But the charge does not include the proper instruction for the jury on how to fill out the verdict form. The jury deliberation instruction in this charge reads as follows:
1. You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree on every answer in the charge. This means you may not have one group of 10 jurors agree on one answer and a different group of 10 jurors agree on another answer.
2. If 10 jurors agree on every answer, those 10 jurors sign the verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If all 12 of you agree on every answer, you are unanimous and only the presiding juror signs the verdict.
3. All jurors should deliberate on every question. You may end up with all 12 of you agreeing on some answers, while only 10 or 11 of you agree on other answers. But when you sign the verdict, only those 10 who agree on every answer will sign the verdict.
These instructions depart from the approved instructions in two important respects. First, instruction number one should have included the parenthetical "Unless otherwise instructed" which like the deliberation instruction, should be used when some questions require a unanimous verdict. And the charge entirely omits the fourth required instruction that would have told the jury that there were some questions with special instructions which should be followed, and if all 12 jurors agree to those questions, "you will need to complete a second verdict certificate for those questions." So here, there was not a second "Verdict Certificate" that would have verified that the answers to the punitive damage questions were indeed decided unanimously.
Instead, the charge given to the jury here included a single Verdict Certificate that had four possible lines for the jury to check: one line could be checked if the verdict was unanimous, meaning "All 12 of us have agreed to each and every answer." Another line was to be checked if the verdict was not unanimous but "Eleven of us have agreed to each and every answer[.]" A third line—and the one checked here—states: "Our verdict is not unanimous. Ten of us have agreed to each and every answer and have signed the certificate below." Ten of the jurors signed the form. A fourth option was not checked, and it read: "As to Questions 10, 11, 12, and 13, our verdict is unanimous." But this charge did not have a question 10, 11, 12, and 13 so the jury could not have checked that option in any event.
When the jury returned its verdict, the trial court read aloud the entire verdict, including the jury's answers to all eight questions, as well as the jury's verdict certificate stating that the verdict was not unanimous. Then, at the request of the Homeowners’ attorney, the trial court polled the jurors, asking if this was their "individual verdict" to which ten jurors answered "Yes" and two said, "No." The jury was then discharged without either party questioning the verdict.
The majority correctly notes that the conditioning instruction for Question 7 required unanimity in answering the question as follows:
Answer Question 7 only if you unanimously answered "Yes" to Question 1 regarding Oscar Renda Contracting. Otherwise, do not answer Question 7.
To answer "Yes" to Question 7, your answer must be unanimous. You may answer "No" to Question 7 only upon a vote of ten or more jurors. Otherwise, you must not answer the following question.
From this, the majority harmonizes the obvious conflict between the jury certificate (and the poll of the jurors) to conclude the jury followed the conditioning instruction for Question 7, but ignored the verdict form instruction that allowed any question to be answered "Yes" on a 10-2 vote. I am not so quick to simply assume the jury followed the Question 7 instruction, while ignoring the instruction found in another place in the charge. But before addressing that issue, the majority raises several waiver issues that deserve response.
The Waiver Issues
The majority opinion identifies three waiver issues and agrees with two of them. First, the Homeowners argue that Renda Contracting failed to object to the defects in the charge which they claim precluded the trial judge from considering them in forming the judgment. Second, the majority opinion concludes that Renda Contracting waived any error in the verdict because it did not request that the jury be sent back for further deliberations before it was discharged. Third, the majority opinion claims Renda Contracting has waived any claim to disregard the finding in Question 7 by failing to raise the unanimity issue in a Rule 301 Motion for Judgment Notwithstanding the Verdict. I disagree. As for the objections to the charge, it is unfortunate that not all the pertinent language from the Supreme Court's "Approved Instructions" was used here. The complete use of those instructions, and particularly the two required verdict certificates, would have resolved any conflicts in how many jurors agreed to each question. And had the parties caught and corrected the apparent typographical error on the certificate page, the jury could have at least confirmed that it answered Question 1, 7, and 8 unanimously (rather than as it did, reference questions that were not even in the charge).
Neither party objected to the errors in the charge. The Homeowners lay the blame for any discrepancies in the charge with Renda Contracting. The thrust of their argument is that Renda Contracting carries the burden to conclusively show that the exemplary damage questions were not decided unanimously. Yet a plaintiff is responsible for obtaining all the needed findings to support the award they seek. See United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 481 (Tex. 2017) (the plaintiff bears the burden to obtain affirmative answers to jury questions on the necessary elements of the plaintiff's cause of action); Jang Won Cho v. Kun Sik Kim , 572 S.W.3d 783, 798 (Tex.App.--Houston [14th Dist.] 2019, no pet.) (same). By statute, unanimous findings are a prerequisite to support the award of exemplary damages. TEX.CIV.PRAC. & REM.CODE ANN. § 41.003 (d) ("[e]xemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages"). When seeking to obtain exemplary damages, I would place the burden on the plaintiff to obtain a unanimous jury verdict, and consequently, the burden to ensure the form of the jury charge will confirm that the jury reached that unanimous verdict.
The Homeowners cite two cases for the proposition that the defendant has an obligation to object to the absence of a unanimity instruction. In both cases, the courts faulted the defendant for not objecting to the lack of a unanimity instruction, but the observations are at best dicta because in one case the statute requiring a unanimous verdict had not yet taken effect, Murphy v. Am. Rice, Inc. , No. 01-03-01357-CV, 2007 WL 766016, at *21 (Tex.App.--Houston [1st Dist.] Mar. 9, 2007, no pet.) (mem. op.), and in the other case, the court stated that when the jury returned its verdict, the trial court had the jury confirm its verdict was unanimous. Fitzerman v. Classic Americana, LLC , No. 05-15-00528-CV, 2016 WL 1450165, at *10 (Tex.App.--Dallas Apr. 13, 2016, no pet.).
Next, the Homeowners urge, and the majority agrees, that if Renda Contracting believed there was a conflict between the verdict form and the jury's answers to the questions in the jury charge, it needed to invoke Rule 295 of the Texas Rules of Civil Procedure before the jury was discharged. Rule 295 provides that when a jury's verdict is incomplete, nonresponsive, or the jury's answers are in conflict, the trial court "shall in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and retire the jury for further deliberations." TEX.R.CIV.P . 295 ; see also USAA Texas Lloyds Co. v. Menchaca , 545 S.W.3d 479, 519 (Tex. 2018) (recognizing that Rule 295 "provides the procedure for resolving incomplete and nonresponsive jury verdicts as well as those containing conflicting answers").
This same argument was addressed by the Tyler court in Redwine v. Peckinpaugh , 535 S.W.3d 44, 50 (Tex.App.--Tyler 2017, no pet.). That case similarly involved an affirmative finding on exemplary damages with a verdict form signed by only 11 of the 12 jurors. Id. at 52. As in our case, the trial court polled the jury and fewer than twelve agreed with the verdict. Id. As here, the prevailing plaintiff argued on appeal that the defendant waived any error by failing to have the jury sent back after the jury poll confirmed an 11-1 split. Id. The court disagreed, however, reasoning that the answers did not result in conflicting jury findings or a clerical error which could be corrected. Id. "This is not a situation in which further jury deliberation was required to resolve the matter. Instead, the issue of whether an award of exemplary damages is supported by a unanimous verdict is reviewed as a no evidence issue and can be preserved by a post judgment motion." Id.
I would add that the Homeowners, who carried the ultimate burden to obtain the requisite findings for an award of exemplary damages, and who asked for the jury poll, could have equally asked that any perceived conflict be addressed before the jury was discharged.
The majority also relies on Renda Contracting's failure to move under Rule 301 for a Judgment Notwithstanding the Verdict on the punitive damage question. To be clear, the Homeowners here filed a motion to enter a judgment awarding exemplary damages. Renda Contracting filed an objection contending that the Homeowners failed to obtain unanimous findings to support that award. The trial court agreed with Renda Contracting and entered a judgment with only actual damages. Renda Contracting then filed a JNOV motion attacking the findings supporting the actual damages. Renda Contracting would have no reason to include in its JNOV motion arguments on the punitive damage question, on which it had already prevailed.
That objection by itself could be considered motion to disregard the jury's answer to Question 7. See Redwine v. Peckinpaugh , 535 S.W.3d 44, 51 (Tex.App.--Tyler 2017, no pet.) (defendant's written objection to plaintiff's proposed judgment "in substance, amounted to a motion to disregard the jury's nonunanimous finding on exemplary damages").
Also to be clear, the Rule 301 waiver argument that the majority relies on was not raised below. At most, the Homeowners complained in their written filing below that Renda filed its response to the Homeowners’ Motion for Judgment on the eve of the hearing, and the Homeowners asked the trial court to strike the response, but there is no indication in our record that the trial court made a ruling on that request. The Homeowners did not argue that the trial court could not discount the exemplary damages questions without a JNOV motion. For that reason, I cannot agree with the majority's reliance on Rule 301. See TEX.R.APP.P . 33.1(a)(1) (general requirement that to present a complaint for appellate review, the record must show that the objection was made to, and ruled on, by the trial court).
Nor have the Homeowners articulated this argument in their Brief on the Merits. Thus I would not address this issue given the parties’ failure to brief it. See Martinez v. El Paso Cnty. , 218 S.W.3d 841, 844 (Tex.App.--El Paso 2007, pet. struck) ("[A]n appellate court has no discretion to consider an issue not raised in the appellant's brief even if the ends of justice so require."); see also Taylor v. Meador , 326 S.W.3d 682, 684 (Tex.App.--El Paso 2010, no pet.) (same).
The Homeowners’ brief does argue with citations to authority why they claim Renda Contracting should have objected to the charge. That argument is then followed by this conclusion: "For these reasons, the trial court could not consider the merits of [Renda Contracting's] post-verdict complaint in the first instance. It was not raised during the charge conference, and it conflicts with the form of the charge under which the jury was permitted to award exemplary damages. Under these circumstances, the trial court's refusal to conform the judgment to the verdict necessarily led to the rendition of an improper judgment. See Tex.R.Civ.P . 301 ; Tex.R.App.P . 44.1(a) [followed by string cite to cases on the duty to object to charge errors and measuring evidence against the charge as given]." This is the only reference to Rule 301 in the Homeowners’ brief. In context, this generic citation to Rule 301 is not making the same waiver argument advanced by the majority.
But more fundamentally, the argument assumes that there was a definitive jury finding entitling the Homeowners to punitive damages that the trial court needed to set aside. The problem here is that it is unclear whether the Homeowners obtained a verdict on which they are entitled to a judgment for punitive damages. They are if we assume the jury followed one instruction in the charge, but not, if the jury followed another instruction. It would be improper for us to simply assume the jury followed the instruction that favors the Homeowners, such that a burden fell on Renda Contracting to file a Rule 301 motion in the first place.
The Merits
All of this brings us to the central question in the appeal: does this verdict unequivocally entitle the Homeowners to an award of punitive damages. The majority begins with our standard of review that makes this a question of law (and not, for instance, a review for an abuse of discretion). See Redwine , 535 S.W.3d at 50, citing Trish Deatley v. Rodriguez , 246 S.W.3d 848, 850 (Tex.App.--Dallas 2008, no pet.). I believe there is a nuance to this standard important to the outcome.
When we are asked to interpret what a jury decided in the verdict form, we view any ambiguous jury findings to uphold the judgment, but only if we are presented with two reasonable interpretations of the jury charge. Mem'l Hermann Health System v. Gomez , No. 19-0872, 2022 WL 1194374, at *6 (Tex. Apr. 22, 2022) (deciding whether a jury finding that a defamatory statement was communicated to third parties referred only to the quoted statement in the charge, or to the substance of the material referenced in that quote). In doing so, "[t]he charge must be viewed as a whole, and interpreted in the light of its entire content, of the issues between the parties, and of the evidence relevant thereto." Broughton v. Humble Oil & Refin. Co. , 105 S.W.2d 480, 485 (Tex.App.--El Paso 1937, writ ref'd). We give the verdict form a commonsense interpretation, "gleaned from both the text of the charge and the context of the case." Gomez , 2022 WL 1194374, at *6, quoting Broughton , 105 S.W.2d at 485. And a "court cannot ignore a charge's plain, commonsense meaning merely because an unreasonable interpretation would better align with the judgment." Id.
Applying this standard, I would uphold the trial court. The jury twice said it reached a 10-2 verdict, first on the verdict form, and again when polled in open court. One instruction in the charge informed the jury that it should answer Question 7 unanimously. One instruction for the verdict certificate allowed for 10-2 answers to all questions. And the verdict certificate added a blank to check that "As to Questions 10, 11, 12, and 13, our verdict is unanimous." That option may not have made any sense to the jury (because there were no such questions) or they might have inferred that any other questions could be 10-2.
When construing a contract or a statute, we sometimes apply the rubric that a specific provision prevails over a general one. See, e.g., Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd. , 574 S.W.3d 882, 889 (Tex. 2019) ("[A] specific contract provision controls over a general one."); City of Dallas v. Mitchell , 870 S.W.2d 21, 23 (Tex. 1994) ("When two statutes conflict, the specific controls over the general."). Applied here, the more specific instruction is found with Question 7. But we are not dealing with contracting parties, or the legislature. Instead, we are dealing with 12 citizens placed into an unfamiliar role of applying the facts to the law. I would require more precision in the instructions than they received here, and would not simply assume that they knew how to reconcile inconsistent instructions in the charge.
The Tyler Court of Appeals faced a similar situation in Redwine v. Peckinpaugh , where the jury first found that the defendant made several defamatory statements about the plaintiff. 535 S.W.3d at 47-48. The jury also awarded exemplary damages. Id. at 51. As here, the conditioning language for the exemplary damage question required that the jury answer the question unanimously. Id. at 51. And as here, the jury checked the line on the verdict form that the verdict was not unanimous ("Our verdict is not unanimous. 11 of us have agreed to each and every answer, and signed the certificate below."). Id. at 52. Also as in our case, the trial court polled the jury and fewer than twelve agreed with the verdict. Id. Based on that record, the court of appeals concluded "The record in this case reflects that the jury verdict was not unanimous." Id. at 51. It thus rendered a judgment deleting the exemplary damage award. Id. at 54.
For much the same reason, the record here does not show that the verdict was unanimous. To be sure, one could speculate that the jury followed the conditioning instruction for Question 7, and argue that they were unanimous in answering Questions 1 and 7, and were only split 10-2 on some other question. Yet one could just as easily speculate that as to all the jury questions, the jury followed Instruction One to the Verdict Certification: "You may answer the questions on a vote of 10 jurors."
When presented with an ambiguity in jury findings, we are to uphold the judgment, but only if presented with two reasonable interpretations of the jury charge. Gomez , 2022 WL 1194374, at *6. Stated in the context of this case, our focus is on whether there is a reasonable construction of the outcome where the jury did not find the answers to Questions 1 and 7 by a 12-0 vote. I would find that reasonable construction based on: (1) the jury's statement that "Our verdict is not unanimous. Ten of us have agreed to each and every answer and have signed the certificate below"; (2) the jury poll where only ten jurors said this was their verdict; and (3) the ambiguities in the charge created by the omission of the required language from the Approved Instructions.