Opinion
NUMBER 13-14-00190-CV
03-31-2016
CHRISTOPHER MANN AND GWENDA MANN, Appellants, v. RUDIS ROBLES AND CLAUDIA FLORES ROBLES, Appellees.
On appeal from the 284th District Court of Montgomery County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion by Justice Perkes
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has been transferred to this Court from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).
Appellants Christopher and Gwenda Mann ("Mann") appeal the trial court's judgment entered on the jury's verdict in favor of appellees Rudis Robles and Claudia Flores Robles ("Robles"). After a jury found in favor of Robles on affirmative claims of promissory estoppel and breach of an oral contract, the trial court awarded Robles $156,970.60 in damages and $57,707.84 in attorney's fees. By eight issues, Mann challenges the jury's responses to various jury questions and argues that the trial court erred by excluding testimony. We affirm.
We note that no issue submitted to the jury or raised on appeal concerning the liability, or right to relief, of Claudia Robles.
The damages include $134,357 in actual damages as found by the jury, plus $22,613.60 in prejudgment interest.
I. BACKGROUND
Christopher Mann orally agreed to sell approximately 12.5 acres to Rudis Robles. The land was between and adjacent to Mann's and Robles's existing parcels and included a partially completed house. Although the parties dispute the terms of the agreement and many of the events following the consummation of the agreement, several facts are undisputed: the parties had an oral agreement for the purchase of the property; Robles made several payments toward the $135,000 purchase price; Robles performed work on the property; and some years later, Mann locked Robles out of the property.
Robles filed suit against Mann alleging causes of action for breach of contract, promissory estoppel, fraud, statutory fraud, deceptive trade practices, and declaratory judgment. Mann filed an answer raising affirmative defenses, including the statute of frauds, failure of consideration, fraud, and failure to mitigate. Mann further filed a counter-petition alleging breach of contract, fraud, trespass to real property, and an action to quiet title.
During the trial, Robles testified that Mann approached him with an offer to sell 12.5 acres of land and its improvements and that Mann gave him thirty years to pay for the property. Robles claimed that he made payments to Mann upon request and that he paid a total of $30,000 toward the purchase price, in addition to making substantial improvements on the house and land. According to Robles, he dug a well and pond and installed a road and culvert. In addition to those improvements, Robles cleared trees, built fences, and planted grass for cattle grazing. Robles stated he purchased plumbing fixtures for the house, and hired plumbers, electricians, and general contractors to perform work on the house. Robles also paid the property taxes in 2007, 2008, and 2009. Robles asserted that Mann even helped work on the house. Robles testified regarding the amounts he paid for the work performed on the property. In addition to Robles's testimony, various contractors testified about the work they performed and the amounts invoiced and paid. Copies of various invoices were admitted into evidence. The record shows Robles spent in excess of $108,000 on improvements to the property.
Mann, on the other hand, testified that he orally agreed to sell Robles 12.5 acres of land after Robles approached him with an offer. According to Mann, Robles was to pay the $135,000 purchase price in $5,000 monthly installments until the property was paid in full. On February 26, 2006, Robles made his first payment in the amount of $6,000, followed by approximately five or six checks. After six to eight months, however, Robles stopped making payments. According to Mann, Robles paid a total of $22,000 towards the purchase price. Mann further testified he told Robles not to touch the house until the property was paid in full, and that he told Robles to stop after he learned Robles was working on the house. He denied helping Robles work on the house. Mann acknowledged Robles cleared portions of the land, but stated that he and Robles had another agreement that allowed Robles to graze cattle on the 12.5 acres that was being purchased. Mann claimed that the clearing was done to allow for more grazing land for Robles's cattle. Mann acknowledged Robles dug a well on the property, but stated that Robles used the water to supply his adjacent land, and not the house. He admitted that he took payments from Robles after he allegedly "got behind" on his $5,000 per month obligation. Mann offered Joe Garrett's testimony that, while the house had sheetrock installed, the plumbing was unfinished, and the air conditioning systems were insufficient. The trial court excluded Garrett's testimony and an exhibit regarding the cost that Mann would purportedly incur in "restoring" the house.
There is no evidence of a written grazing lease in the record.
The trial court excluded Mann's exhibit 2, which was an email from Garrett to Gwenda Mann which included a "rough draft" of a report detailing the cost required for the house fixtures to comply with current local, state, and national building codes.
After each side closed its case, the trial court instructed the jury, in relevant part, and submitted fourteen questions in the jury charge, as follows: . . . .
"Agreement" means the oral agreement between RUDIS ROBLES AND CRISTOPHER MANN that RUDIS ROBLES would purchase the Property for $135,000.00.. . . .
1. Was the agreement to be performed in one year?
Jury — No
2. Did Christopher Mann fail to comply with the agreement?
Jury — Yes
3. Did Rudis Robles fail to comply with the agreement?
Jury — Yes
4. Who failed to comply with the agreement first?
Jury — Mann
5. Did Rudis Robles substantially rely to his detriment on Christopher Mann's promise, if any, to sell the Property to him and was this reliance foreseeable by Christopher Mann?
Jury — Yes
6. Did Christopher Mann engage in any false, misleading, or deceptive act or practice that Rudis Robles relied on to his detriment and that was a producing cause of damages to Rudis Robles?
Jury — No
7. Did Christopher Mann engage in any unconscionable action or course of action that was the producing cause of damages to Rudis Robles?
Jury — Yes
8. Did Christopher Mann engage in any such conduct knowingly?
Jury — Yes
9. What sum of money, if any, in addition to actual damages, should be awarded to Rudis Robles against Christopher Mann because of the conduct committed knowingly?
Jury — $0
10. How much money, if any, did Rudis Robles actually pay to Christopher Mann and Gwenda Mann for the Property?
Jury — $30,000
11. What were the reasonable and necessary costs and expenses, if any, actually paid by Rudis Robles in making improvements, if any, to the Property?
Jury — $ 104,357.00
12. What sum of money, if any, paid now in cash, would fairly and reasonably compensate Christopher Mann and Gwenda Mann for their damages, if any, that resulted from the failure to comply?
Jury — $0
13. What is a reasonable fee for the necessary services of Rudis Robles's attorney stated in dollars and cents?
Jury — $57,707.84
14. What is a reasonable fee for the necessary services of Christopher Mann's and Gwenda Mann's attorney stated in dollars and cents?
Jury — $57,707.84
Based upon the jury's findings, the trial court rendered judgment on the verdict in favor of Robles.
II. STATUTE OF FRAUDS - PROMISSORY ESTOPPEL
By his second issue, Mann argues that "Robles is not entitled to damages based upon . . . Mann's failure to comply with [the oral] agreement by artfully pleading the same conduct into a cause of action with a different name." Specifically, Mann argues that the statute of frauds operates as a bar to Robles's promissory estoppel cause of action. We disagree.
By his first issue, Mann argues that the jury findings in question numbers one, two, three, and four do not support the judgment; he argues that the statute of frauds applies and asserts that "there can be no claim for breach of a verbal agreement for the sale of real property." His argument under this issue, however, appears to be limited to breach of contract. By his second issue, Mann extends his argument to fraud in his brief, but does not specifically address promissory estoppel. However, Mann does reply with respect to promissory estoppel in his reply brief, so we will address it.
Under the statute of frauds, a contract for the sale of real estate "is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him." TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(4) (West, Westlaw through 2015 R.S.). The statute of frauds requires "a written memorandum which is complete within itself in every material detail, and which contains all of the essential elements of the agreement, so that the contract can be ascertained from the writings without resorting to oral testimony." Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978).
Promissory estoppel may be asserted by a plaintiff as an affirmative claim for damages. Kenney v. Porter, 604 S.W.2d 297, 303 (Tex. Civ. App.—Corpus Christi 1980, writ ref'd n.r.e.). Promissory estoppel, as a cause of action, is available to a promisee who relied to his detriment on an otherwise unenforceable promise.See Frost CrushedStone Co. v. Odell Geer Const. Co., 110 S.W.3d 41, 46 n.1 (Tex. App.—Waco 2002, no pet.); see also Bechtel Corp. v. CITGO Prods. Pipeline Co., 271 S.W.3d 898, 926 (Tex. App.—Austin 2008, no pet.). Generally, promissory estoppel is a viable alternative to breach of contract. Trevino & Assocs. Mech., L.P. v. Frost Nat'l Bank, 400 S.W.3d 139, 146 (Tex. App.—Dallas 2013, no pet.); Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The promissory estoppel doctrine presumes that no contract exists. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002). Although promissory estoppel is not applicable to a promise covered by a valid contract between the parties, promissory estoppel will apply to a promise outside a contract. Trevino, 400 S.W.3d at 146; see Richter v. Wagner Oil Co., 90 S.W.3d 890, 899 (Tex. App.—San Antonio 2002, no pet.).
In some cases, promissory estoppel is used as a counter-defensive plea to bar the application of the statute of frauds and allow specific performance or enforcement of an otherwise unenforceable oral promise. See Frost Crushed Stone Co., v. Odell Geer Const. Co., 110 S.W.3d 41, 46 n.1 (Tex. App.—Waco 2002, no pet.). Promissory estoppel defeats a statute of frauds defense if a plaintiff proves all elements of a cause of action for promissory estoppel in addition to showing that the defendant promised to sign a written document complying with the statute of frauds. Ortiz v. Collins, 203 S.W.3d 414, 425 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Robles did not plead promissory estoppel as a counter-defensive plea but as an affirmative cause of action.
The equitable doctrine of promissory estoppel can be based on the premise of detrimental reliance on a defendant's oral promise. See Frost Crushed Stone Co., 110 S.W.3d at 46 n.1 (promissory estoppel permitted as claim for money damages since cause of action premised on detrimental reliance on defendant's oral bid); Traco, Inc. v. Arrow Glass Co., Inc., 814 S.W.2d 186, 190 (Tex. App.—San Antonio 1991, writ denied) (promissory estoppel applied in oral bid construction case; court recognized necessity for equity in view of lack of other remedies). In this form, the party asserting promissory estoppel is not seeking the specific performance of the contract, but is seeking to obtain the money he expended in relying on the promise. Robles pleaded promissory estoppel as an alternative theory to breach of contract; therefore, the claim is not dependent on an enforceable contract and is not barred by the statute of frauds. We overrule Mann's second issue.
III. PROMISSORY ESTOPPEL
By his third issue, Mann argues Robles failed to obtain a jury finding on all of the required elements of promissory estoppel in jury question number five and that there is insufficient evidence of one element to support the judgment. Specifically, Mann argues that question five—the jury question on promissory estoppel—is missing the requirement that the jury find that injustice can be avoided only by enforcing the promise. Mann contends the evidence is legally and factually insufficient to support the missing "injustice" element because he testified he will incur expenses in removing Robles's improvements from the house.
A. Standard of Review - Jury Charge
We review a trial court's decision to submit or refuse a particular jury question or instruction for an abuse of discretion. Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012). The trial court has broad discretion in submitting jury questions, subject only to the limitation that controlling issues of fact must be submitted to the jury. Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.—Dallas 2002, pet. denied); see also Triplex Commc'ns. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) ("If an issue is properly pleaded and is supported by some evidence, a litigant is entitled to have controlling questions submitted to the jury."). "If an instruction might aid the jury in answering the issues presented to them, or if there is any support in the evidence for an instruction, the instruction is proper." La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). An instruction is proper if it: (1) assists the jury; (2) accurately states the law; and (3) finds support in the pleadings and evidence. Thota, 366 S.W.3d at 687. B. Applicable Law—Promissory Estoppel
Promissory estoppel supplies a remedy which enables the injured party to be compensated for his foreseeable, definite, and substantial reliance on a promise. Wheeler v. White, 398 S.W.2d 93, 97 (Tex. 1965). The requisite elements of promissory estoppel are: (1) a promise, (2) foreseeability of reliance thereon by the promisor, and (3) substantial reliance by the promisee to his detriment. English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983). Generally, promissory estoppel is a viable alternative to a claim for breach of contract. Allied Vista, Inc. v. Holt, 987 S.W.3d 138, 141 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The promise will be enforced if necessary to avoid an injustice. See Adams v. Petrade Intern., Inc., 754 S.W.2d 696, 708-09 (Tex. App.—Houston [1st Dist.] 1988, writ denied).
C. Analysis
Mann asserts that "injustice" is a fourth element of promissory estoppel and was omitted from the jury charge questions. We first note that Mann did not object to the jury charge question on promissory estoppel. To preserve an appellate complaint premised on a defective jury charge, a party must "point out distinctly the objectionable matter and the grounds of the objection." TEX. R. CIV. P. 274. "Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections." Id. If a party fails to lodge an objection to the jury charge that timely and plainly makes the trial court aware of the complaint, error is not preserved and the complaint is waived on appeal. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007); see also TEX. R. CIV. P. 278 (Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment. . .). Since Mann failed to object to the jury charge question on promissory estoppel, his complaint about jury charge error is waived. See TEX. R. CIV. P. 274.
Moreover, while we agree that injustice may be a consideration, we disagree that it is an element of promissory estoppel. See English, 660 S.W.2d at 524 ("The elements of promissory estoppel are a promise, foreseeability by the promisor that the promisee would rely on the promise, and substantial reliance by the promisee to his detriment."). Additionally, we note that jury question five is derived, without change, directly from the Texas Pattern Jury Charge on "promissory estoppel." See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Promissory Estoppel 101.41 (2015); see also THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 569 (Tex. App.—Amarillo 2010, pet. denied) ("Although the Texas Pattern Jury Charges are not 'law,' they are heavily relied upon by bench and bar and based on what the State Bar Committee perceives the present law to be."). As such, we cannot say the trial court abused its discretion in charging the jury. See Thota, 366 S.W.3d at 687.
Mann does not challenge the evidence to support the jury's affirmative findings on the elements of promissory estoppel included in the jury charge. Accordingly, we hold that the trial court's judgment can be upheld on the theory of promissory estoppel. We overrule Mann's third issue.
Because of this holding, we need not reach Mann's first issue, which challenges Robles's cause of action for breach of contract; or his fourth issue, which challenges whether Mann engaged in an unconscionable act that was a producing cause of damages. See Adams, 754 S.W.2d at 708-09; TEX. R. APP. P. 47.1.
IV. ROBLES'S DAMAGES
By his fifth issue, Mann complains that the jury's responses to questions ten and eleven do not constitute recoverable elements of damages. Specifically, Mann argues there is no connection between the amounts awarded as damages and the liability questions answered affirmatively by the jury. In addition, Mann appears to also generally challenge the sufficiency of evidence to support Robles's damages award.
Mann argues that the jury responses are not based on the "two measures of direct damages for common law fraud: benefit of the bargain and out of pocket damages." The court, however, refused to submit a question on fraud to the jury. Further, no objection was made to the jury question regarding types of damages. See TEX. R. CIV. P. 274.
Mann does not state whether he is challenging the legal or factual sufficiency of the evidence.
A. Reliance Damages
1. Applicable Law
"Where the promisee has failed to bind the promisor to a legally sufficient contract, but where the promisee has acted in reliance upon a promise to his detriment, the promisee is to be allowed to recover no more than reliance damages measured by the detriment sustained." Wheeler, 398 S.W.2d at 97 (emphasis added). Damages recoverable in a case of promissory estoppel are not the profits that the promisee expected, but only the amount necessary to restore him to the position in which he would have been had he not relied on the promise. See Frost Crushed Stone Co., 110 S.W.3d at 47; see also Fretz Const. Co. v. S. Nat'l Bank, 626 S.W.2d 478, 483 (Tex. 1981).
"Reliance damages, similar to out-of-pocket recovery, reimburse one for expenditures made toward the execution of the contract in order to restore the status quo before the contract." Hart v. Moore, 952 S.W.2d 90, 97 (Tex. App.—Amarillo 1997, pet. denied). The limitation of promissory estoppel damages solely to reliance damages, rather than compensating for the loss of the full benefit of the breached or unperformed contract or promise, reflects the view that "[s]ince the promisee in such cases is partly responsible for his failure to bind the promisor to a legally sufficient contract, it is reasonable to conclude that all that is required to achieve justice is to put the promisee in the position he would have been in had he not acted in reliance upon the promise." Wheeler, 398 S.W.2d at 97.
2. Analysis
Jury question ten asked how much money Robles actually paid Mann for the property. Question eleven asked what were the reasonable and necessary costs and expenses paid by Robles in making improvements on the property. The jury found that Robles paid Mann $30,000 for the property and that he spent $104,357 in making improvements to the property. Robles's remedy is reimbursement for the amounts he expended in reliance on Mann's promise, and these amounts are therefore recoverable through promissory estoppel. See Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 734 (Tex. 1981); Fretz Constr. Co., 626 S.W.2d at 483.
B. Sufficiency of the Evidence
1. Standard of Review
"When examining a legal-sufficiency challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it." Bryan v. Gordon, 384 S.W.3d 908, 913 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). "We credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not." Id. "The evidence is legally sufficient if it would enable a reasonable and fair-minded person to find the fact under review." Id. "The fact finder is the sole judge of witness credibility and the weight to give their testimony." Id.
"In a factual-sufficiency review, we consider and weigh all the evidence, both supporting and contradicting the finding." Id. (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998)). "We set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). "We may not substitute our own judgment for that of the trier of fact or pass upon the credibility of the witnesses." Id. "The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment." Id. at 913-14.
2. Analysis
Robles testified that he paid a total of $30,000 for the property. Robles also testified regarding the amounts that he spent for various improvements. According to Robles, he spent a total of $9,622.77 in electrical work on the house, $2,800 in brush clearing and fence building, and $9,100 in plumbing in the house. In addition, one contractor charged Robles two invoices totaling $20,975 for drywall and HVAC systems installation, while another contractor charged Robles $6,500 to replace a water line. Robles paid $59,150 to build a road base, install a culvert, and clear stumps. In summary, the record shows that Robles spent in excess of $108,000 on improvements to the property.
We conclude there is legally and factually sufficient evidence to support Robles's reliance damages. See Mays v. Pierce, 203 S.W.3d 564, 578 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (trial court has discretion to award damages within range of evidence presented at trial). We overrule Mann's fifth issue.
V. MANN'S BREACH OF CONTRACT ACTION
By his seventh issue, Mann argues the jury's response to question number four—who failed to comply with the agreement first—"is not supported by legally or factually sufficient evidence." The jury found that Mann was the first to fail to comply with the agreement.
A. Standard of Review
Mann had the burden of proof on his breach of contract claim. When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001). In reviewing a "matter of law" challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. at 241. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. The issue should be sustained only if the contrary proposition is conclusively established. Id. at 241-42.
When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242. The reviewing court must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
B. Analysis
"In the standard contract dispute, one party cancels the contract or refuses to pay due to alleged breaches by the other; in such circumstances, jurors will often find both parties failed to comply with the contract . . . unless instructed that they must decide who committed the first material breach." See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004). Here, both parties presented evidence concerning breach of contract. Accordingly, the jury was asked to make separate findings concerning whether Mann or Robles complied with the agreement, who failed to comply first, and the corresponding damages attributed to either party's failure to comply.
In this regard, Mann made the following breach of contract allegations in his counterclaim:
After December of the year 2004, [Robles] made an oral agreement with . . . Christopher Mann, to purchase a tract of land of some twelve (12) plus acres of land, with improvements including the "yellow house", which property is described on Exhibit "A" attached hereto and made a part hereof for all purposes.
The cash purchase price was to be one hundred thirty five thousand dollars ($135,000.00) as agreed to verbally by the parties. [Robles] tendered $27,000.00 to [the Manns] and at the time agreed to promptly tender all the remaining payment(s) to [the Manns] as a "cash" purchase of the said real property.
[Robles] . . . breached such oral promise . . . failed and refused to make any more payment(s) of the remaining amount to make up the total cash purchase of $135,000.00 . . . .
This language and the attachment appears to be a judicial admission regarding the existence of the real estate contract.
The parties do not dispute that Mann locked Robles out of the property, but there is conflicting testimony regarding the terms of their verbal agreement. Robles testified that Mann gave him thirty years to pay the $135,000 purchase price for the property. In other words, there was no agreement regarding any periodic payment other than the thirty-year term to complete the purchase money obligation. Robles testified that he made partial payments to Mann upon request and that he paid a total of $30,000 toward the purchase price prior to Mann locking him out of the property. Mann, on the other hand, testified that the agreement required Robles to pay $5,000 a month until the purchase price was paid in full, but that Robles stopped making payments after six to eight months. There is no evidence in the record that Mann sent any late payment notices or made any written demand for payment.
It is the jury's province to resolve conflicting evidence. See City of Keller, 168 S.W.3d at 820. Faced with conflicting testimony concerning the terms of the agreement, we must assume that the jurors resolved all conflicts in accordance with their verdict. See id. Furthermore, "[t]he fact finder is the sole judge of witness credibility and the weight to give their testimony." Bryan, 384 S.W.3d at 913. As such, the jury could have chosen to believe Robles's testimony over that of Mann concerning the terms of the party's agreement. Robles's testimony reflects that he made payments when Mann requested but that Mann breached the agreement when he locked him out of the property. We conclude, under these facts, that the jury's finding concerning who breached the agreement first was supported by legally and factually sufficient evidence. See Dow Chem. Co., 46 S.W.3d at 241-42. We overrule Mann's seventh issue.
VI. MANN'S DAMAGES
By his sixth issue, Mann argues the jury's response to question number twelve is not supported by legally or factually sufficient evidence. Jury question twelve asked "what sum of money, if any, if paid now in cash, would fairly and reasonably compensate Christopher Mann and Gwenda Mann for their damages, if any, that resulted from the failure to comply?" By his eighth issue, Mann argues the trial court abused its discretion in excluding the testimony of Joe Garrett regarding Mann's purported cost to repair the property. Mann asserts that Garrett's testimony was relevant to prove his costs to repair the house.
Mann's only claim for affirmative relief submitted to the jury was for breach of contract. The jury found that Mann was not entitled to damages because he breached first. Having determined that Mann is not entitled to affirmative relief on his breach of contract action, we need not address Mann's sixth and eighth issues, which both address Mann's claim for damages. See TEX. R. APP. P. 47.1.
No jury questions were submitted concerning Mann's pleaded causes of action for fraud and trespass, and to quiet title. We also note that Mann did not seek the right to offset Robles's damages. "The right of offset is an affirmative defense." Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). "The burden of pleading offset and of proving facts necessary to support it are on the party making the assertion." Id. (citing Sw. Bell Tel. Co. v. Gravitt, 551 S.W.2d 421 (Tex. Civ. App.—San Antonio 1977, writ ref'd n.r.e.)); see also TEX. R. CIV. P. 94. Mann did not plead offset as a defense, nor did he object to the jury questions regarding damages or request alternative instructions or questions. See TEX. R. CIV. P. 272, 274; Brown, 601 S.W.2d at 936. --------
VII. CONCLUSION
We affirm the trial court's judgment.
GREGORY T. PERKES
Justice Delivered and filed the 31st day of March, 2016.