COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00204-CV
TERRY GLENN AND MONICA APPELLANTS GLENN
V.
ROBERT J. PACK, JR. APPELLEE
----------
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION1 ----------
I. Introduction
In eighteen issues, Appellants Terry and Monica Glenn appeal the trial
court’s judgment awarding Appellee Robert Pack damages and attorneys’ fees
for his breach of contract and tortious interference with contract counterclaims.
1 See Tex. R. App. P. 47.4. We affirmed in part, reversed and rendered in part, and reversed and remanded
in part.
II. Factual and Procedural History
On March 29, 2007, the Glenns signed a contract (Pack-Glenn contract) to
purchase Robert Pack’s residence. A temporary residential lease, incorporated
into the contract, allowed the Glenns to take possession of the property on March
31. Closing, scheduled for April 4, did not occur. 2 On April 3, Pack entered into
a contract (Pack-Funk contract) to sell the property to another couple, the Funks,
to close on April 17.
On April 9, the Glenns’ then attorney, Daryl Washington, filed a lawsuit
against Pack for breach of contract and a motion to temporarily enjoin the
property’s sale. On April 16, at a hearing on the injunction, Washington learned
of the Pack-Funk contract and the April 17 closing date. At 4:30 p.m. on April 16,
Washington filed a lis pendens on Pack’s residence. On April 17, Washington
sent a copy of the lis pendens and a letter asserting that a constructive lien had
been placed on Pack’s residence to both Pack’s real estate agent, Lisa DeLeon,
and Pack’s attorney, Roger Yale.3 The April 17 closing did not occur. On May
25, the Funks, citing the lis pendens as the reason, terminated the Pack-Funk
2 Both parties cite the other’s breach for the failure to close on the contract. 3 Pack cites Washington’s letter as the basis for his tortious interference claim. Relevant portions of the proceedings and evidence are set forth below.
2 contract.4 In response to the Glenns’ suit, Pack requested a declaratory
judgment that the Glenns breached the Pack-Glenn contract and that the lis
pendens constituted a fraudulent filing. Pack also filed counterclaims for
damages and attorneys’ fees based on chapter 12 of the civil practice and
remedies code, breach of the Pack-Glenn contract, and tortious interference with
the Pack-Funk contract.
During the charge conference, the trial court dismissed Pack’s chapter 12
and declaratory judgment claims and submitted the breach of contract, tortious
interference, and attorneys’ fees claims to the jury. The jury returned a verdict in
Pack’s favor, awarded him damages on all submitted claims, and awarded Pack
appellate, but not trial, attorneys’ fees. The trial court set aside the $0 trial
attorneys’ fees award and awarded Pack $82,500. The trial court denied the
Glenns’ motion for new trial. This appeal followed.
III. Legal and Factual Sufficiency
The Glenns bring eighteen issues on appeal. In issues eight through
fifteen, the Glenns challenge the legal and factual sufficiency of the evidence to
support the jury’s findings that they breached the Pack-Glenn contract and
tortiously interfered with the Pack-Funk contract. The Glenns also argue that the
trial court erred by allowing the acts of an attorney to be imputed to a client and
the client’s wife (issues one and two); allowing the jury to consider damages on
4 Ultimately, Citimortgage foreclosed on the property and sold it in September 2007.
3 Pack’s tortious interference claim (issue three); failing to apply the one
satisfaction rule (issue four); submitting a jury instruction awarding the Glenns’
earnest money to Pack as damages (issue five); responding incorrectly to juror’s
questions during deliberations (issue six); failing to require Pack to segregate his
attorneys’ fees among his four counterclaims (issue sixteen); and failing to grant
a mistrial due either to adverse publicity (issue seventeen) or to the court
reporter’s actions in taking the record with her on vacation (issue seven). And, in
issue eighteen, the Glenns contend that the cumulative impact of these errors
requires reversal.
A. Standards of Review
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1988),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
determining whether there is legally sufficient evidence to support a finding under
review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co., Inc. v. Islas, 228
4 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
evidence is so weak, or so contrary to the overwhelming weight of the evidence,
that the answer should be set aside and a new trial ordered. Pool v. Ford Motor
Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Garza v. Alviar, 395
S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660,
661 (1951).
B. Breach of Contract
To recover for breach of contract, a plaintiff must prove (1) a valid contract,
(2) that the plaintiff performed or tendered performance under the contract, (3)
that the defendant breached the contract, and (4) that the plaintiff suffered
damages as a result of the breach. See Muenster Hosp. Dist. v. Carter, 216
S.W.3d 500, 505 (Tex. App.—Fort Worth 2006, no pet.). The parties dispute
each other’s claim to performance and claim that the other party breached. Both
sides also point to the other side’s alleged breach as an excuse for their own
non-performance. The Glenns argue that Pack breached the contract by failing
to deliver possession of the residence on the morning of March 31. Additionally,
Monica Glenn claims that she could not have breached the contract because of
her limited involvement in the transaction. Pack blames his late departure from
5 the residence on the Glenns’ late escrow payment and argues that Terry’s text
messages and the Glenns’ failure to take possession the night of March 31 show
that the Glenns unequivocally breached the contract.
1. Evidence at Trial
The Pack-Glenn contract called for the Glenns to deposit $50,000 into an
escrow account upon contract execution. Terry Glenn testified that the Glenns
deposited the funds into escrow after 5:00 p.m. on March 30. Pack testified that
late in the afternoon on March 30, prior to the Glenns’ escrow fund deposit,
because he was unsure of the Glenns’ intentions in pursuing the contract, he
cancelled his moving company reservation. After Pack received notice of the
Glenns’ escrow fund deposit, he arranged for a rental truck and enlisted friends
and family to assist him in packing and moving.
Beginning at 9:00 a.m. on March 31, the parties, in increasingly frustrated
text and email messages, negotiated numerous revised possession deadlines.
Around 2:30 p.m., Craig Rozen, acting as Terry’s agent, sent an email to Pack
declaring the contract ―null and void‖ for Pack’s failure to be ―off the property
Friday night March 30.‖ Despite this email, the parties continued to negotiate
possession.
Around 9:30 p.m. on March 31, after a day-long exchange of tense
communications, Robert DeLeon sent Terry a text stating that he could take
possession and that Terry should bring his checkbook with him. Terry, after
another heated exchange, indicated that Pack could ―[k]eep [his] [expletive]
6 house! I’ll biuld [sic]!‖ DeLeon replied that Terry could pick up his earnest money
from the title company. Terry then responded, ―[Expletive] that I might sue and
still get the house!‖ Neither of the Glenns appeared at Pack’s house to take
possession on the night of March 31.
Terry testified that his text messages and statements were made in
frustration; that he did not take possession after it was offered late on March 31
because he needed to be home with his family; that, regardless of his or Rozen’s
communications on March 31, he still wanted the house; and that on April 1, he
attempted to finalize his possession and purchase of Pack’s residence. Pack
testified that he authorized Robert DeLeon to accept Terry’s contract termination.
Robert DeLeon testified that on April 1, the day after the Glenns terminated the
Pack-Glenn contract, he met with the Funks to negotiate a contract and that the
parties signed the Pack-Funk contract on April 3. Robert DeLeon also testified
that in the common course of business, possession of the property is due
anytime on the date listed in the contract.
Monica testified that she signed, but had not read, the Pack-Glenn
contract; that she relied on Terry to handle everything related to the contract; that
she did not remember when she realized she would not be moving into the house
on March 31; and that, after March 31, she had very little to do with the house.
She also stated that she did not attend the closing scheduled for April 4.
7 2. Analysis
Terry’s text messages amount to an anticipatory repudiation and establish
more than a scintilla of evidence to support Pack’s breach of contract claim. See
Jenkins v. Jenkins, 991 S.W.2d 440, 447 (Tex. App.—Fort Worth 1999, pet.
denied) (noting repudiation is conduct that shows a fixed intention to abandon,
renounce, and refuse to perform the contract). Further, even though Terry
indicated that he would take possession, he became angry when asked to bring
his checkbook and did not take possession. Thus, Terry cannot claim that his
repudiation was due to a genuine misunderstanding as to matters of fact or law.
See id.
The Glenns rely on Monica’s relative lack of involvement to challenge the
trial court’s finding that Monica breached the Pack-Glenn contract. But a party to
a contract is not absolved from the legal effect of the instrument by her willful
ignorance of a contract’s terms, her failure to affirmatively involve herself, or by
relying on the actions of others to fulfill her obligations. See Hampshire v.
Hampshire, 485 S.W.2d 314, 316 (Tex. Civ. App.—Fort Worth 1972, no writ.)
(stating that, absent fraud, a party signing a contract is charged with knowledge
of its contents and its legal effect); see also Vandeventer v. All Am. Life & Cas.
Co., 101 S.W.3d 703, 712 (Tex. App.—Fort Worth 2003, no pet.) (requiring
novation before a party may be relieved of its contractual obligations).
The record shows that Pack’s delayed departure was caused by the
Glenns’ late escrow deposit and supports the conclusion that Pack made every
8 effort to, and did, meet the terms of the contract. Moreover, Rozen’s email and
Terry’s text messages support Pack’s claim that Terry terminated, and thus
breached, the contract. And even though Monica was not personally involved in
the communications or events on March 31, her admitted lack of involvement
with the property after March 31 shows an abandonment of her contractual
obligations because she did not attempt to continue with the transaction.
Based on the above, we hold that the evidence is legally sufficient because
the evidence supporting the jury’s verdict as to the Glenns’ breach of contract is
more than a mere scintilla. See Uniroyal, 977 S.W.2d at 334. Furthermore, we
conclude that the evidence is also factually sufficient because, considering all the
evidence in the record pertinent to this finding, it is not so weak, or so contrary to
the overwhelming weight of the evidence, that the jury’s answer should be set
aside and a new trial ordered. See Pool, 715 S.W.2d at 635; VingCard a.s. v.
Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 860–61 (Tex. App.—Fort Worth
2001, pet. denied).
Accordingly, we overrule the Glenns’ eighth, ninth, tenth, and eleventh
issues.
C. Tortious Interference
To recover for tortious interference with contract, a plaintiff must show (1)
the existence of a contract subject to interference; (2) a willful and intentional act
of interference; (3) that was a proximate cause of the plaintiff’s damages; and (4)
actual damage or loss. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210
9 (Tex. 1996) (op. on reh’g). The record supports the jury’s determination that the
Pack-Funk contract was valid and that Pack suffered damages by the contract’s
termination. Therefore, we must consider whether the Glenns’ actions were willful
and intentional and whether their actions were the proximate cause of Pack’s
damages.
At 4:30 p.m. on April 16, the Glenns’ then attorney, Daryl Washington, filed
a lis pendens on Pack’s residence.5 On April 17, Washington sent a copy of the
lis pendens and a letter stating that a ―constructive lien‖ had been placed on
Pack’s property to Pack’s attorney, Yale, and to Lisa DeLeon. Washington’s
letter also stated that Lisa and Yale were ―required to give any and all potential
purchasers notice of any liens on the property.‖ On May 25, the Funks
terminated the Pack-Funk contract because Pack was ―unable to remove the [l]is
[p]endens from the title to the property. . . .‖ The Funks’ termination letter does
not mention Washington’s letter or a ―constructive lien.‖
Pack testified that Lisa told him that the Funks cancelled the Pack-Funk
contract because a lien had been placed on Pack’s residence and that
Washington, in an effort to stop Pack from selling to the Funks, had represented
himself as a member of Pack’s team in a call to the Funk’s title company. Pack
5 Washington learned of the Pack-Funk contract and scheduled closing at the April 16 hearing on the Glenns’ motion to enjoin the sale of Pack’s residence.
10 also stated that Washington sent a copy of the April 17 letter to him and to the
Funk’s title company.6
Lisa testified that she never met with the Funks, that her husband wrote
the Pack-Funk contract, that her knowledge of the Pack-Funk contract came from
her husband, that ―there was a lien on the property,‖ that liens create a cloud on
the title, and that ―if there was any type of lien or anything attached to the
property, you cannot sell it.‖ Lisa did not testify about the phone call that, per
Pack’s testimony, Washington made to the Funks’ title company.
Robert DeLeon testified that he thought the lis pendens was filed as a ―lis
pendens lien.‖7 He also alternatively stated that (1) the ―lis pendens‖ and (2) the
―lien‖ kept the Funks from closing on Pack’s house.
The Funks, a representative of the Funks’ title company, and Washington
did not testify at trial.8
2. Proximate Cause
Proximate cause is that cause, unbroken by any new and independent
cause, that produces injury and without which the injury would not have occurred.
6 The copy of Washington’s letter that Pack entered into evidence is addressed to Yale and lists Lisa DeLeon as the only party copied. 7 The copy of the filed document entered into evidence states that it was filed as a ―lis pendens,‖ not as a ―lis pendens lien.‖ The document requests that the ―court impose a constructive lien on‖ Pack’s residence, but it does not assert that a constructive lien, in fact, existed. 8 Both Funks were subpoenaed but not called to testify.
11 Portlock v. Perry, 852 S.W.2d 578, 583 (Tex. App.—Dallas 1993, writ denied);
see also Hill v. Heritage Res., Inc., 964 S.W.2d 89, 126 (Tex. App.—El Paso
1997, pet. denied) (noting that the classic proximate cause test applies to tortious
interference cases). It consists of two elements: cause in fact and foreseeability.
Portlock, 852 S.W.2d at 583. Both elements must be present and may be proven
by direct or circumstantial evidence, but proximate cause may not be established
by mere guess or conjecture. Id. ―Cause in fact‖ means that the act or omission
complained of was a substantial factor in producing the injury and without it no
harm would have resulted. Id. ―Foreseeability‖ means that the actor, as a
person of ordinary intelligence, should have anticipated the dangers that his act
created for others. Id.
A lis pendens is available to a party seeking affirmative relief during the
pendency of an action involving title to real property. Tex. Prop. Code Ann.
§ 12.007(a) (Vernon 2004). A lis pendens does not prevent conveyance; it
merely puts the purchaser on notice as to the status of the land. See Collins v.
Tex Mall, L.P., 297 S.W.3d 409, 418 (Tex. App.—Fort Worth 2009, no pet.) As
part of the judicial process, a lis pendens enjoys an absolute privilege and cannot
serve as a basis for a tortious interference claim. See Chale Garza Invs., Inc. v.
Madaria, 931 S.W.2d 597, 600–01 (Tex. App.—San Antonio 1996, writ denied).
3. Analysis
Pack based his tortious interference claim on Washington’s letter, arguing
that the ―constructive lien‖ language constituted a second, unstated cause of the
12 Funks’ contract termination. Prior to the jury charge, the Glenns moved for an
instructed verdict on Pack’s tortious interference claim. The trial court
acknowledged the lis pendens’ absolute privilege,9 but it denied the motion.
Considering the evidence favorable to the finding if a reasonable factfinder
could, we cannot say that more than a scintilla of evidence supports the trial
court’s denial of an instructed verdict on Pack’s tortious interference claim. Both
Lisa DeLeon and Pack testified that they had no personal knowledge of the
reason the Funks cancelled the Pack-Funk contract; their testimonies cannot
serve as basis for Pack’s cause of action. See Tex. R. Evid. 602; In re Christus
Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007) (noting that lay
witnesses may only testify about matters within their personal knowledge); Wal-
Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 937–38 (Tex. 1998) (indicating
that a witness’ testimony unsupported by personal knowledge was ―mere
speculative, subjective opinion of no evidentiary value.‖). Pack’s testimony about
what Lisa told him about Washington’s phone call to the Funks’ title company is
likewise speculative because Pack did not have personal knowledge of
Washington’s actions. Wal-Mart Stores, Inc., 968 S.W.2d at 938; Savage v.
9 The jury charge’s relevant portion reads:
The filing of a [l]is [p]endens is absolutely privileged and can form no basis for a claim of interference. A [l]is [p]endens is a court document that places potential purchasers on notice that there is a claim pending in court which would entitle the person bringing the claim to the property.
13 Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 753–54 (Tex. App.—Fort
Worth 1998, pet. denied).
Robert DeLeon’s testimony amounted to his speculation as to why the
Funks terminated the contract and cannot ascribe intent or motive to the Funks.
See Armstrong-Berger, Inc. v. Dickson/Wells Architects, Inc., No. 05-94-01225-
CV, 1995 WL 464283, at *2 (Tex. App.—Dallas July 31, 1995, writ dism’d w.o.j.)
(not designated for publication) (stating that a ―witness cannot testify to another
person’s intent or motive‖); Found. Reserve Ins. Co. v. Starnes, 479 S.W.2d 330,
334 (Tex. Civ. App.—Fort Worth 1972, no writ) (indicating a witness should
neither testify to the significance or propriety of another’s conduct nor be
permitted to state his opinion with respect to another’s intent, motive, or
purpose); Medina v. Sherrod, 391 S.W.2d 66, 69 (Tex. Civ. App.—San Antonio
1965, no writ) (same); Danaho Ref. Co. v. Pan Am. Petroleum Corp., 383 S.W.2d
941, 946 (Tex. Civ. App.—Waco 1964, writ ref’d n.r.e) (stating that proximate
cause of damage is not ordinarily the proper province of lay opinion evidence in
tort cases). Therefore, Robert DeLeon’s testimony cannot show that the
―constructive lien‖ language was a substantial factor in bringing about the Funks’
contract termination and that without it the Funks would not have cancelled the
contract.
This leaves Pack’s testimony that both he and the Funks’ title company
received a copy of Washington’s letter, but it is not enough to show more than a
scintilla of evidence ascribing a secondary reason to the Funks’ actions in light of
14 the reason stated in the Funks’ termination letter. The Funks’ termination letter
conclusively established that the Funks cancelled the Pack-Funk contract
because Pack failed to remove the lis pendens. The Funks’ actions were a
natural and logical result of a lis pendens filing. Cf. King v. Tubb, 551 S.W.2d
436, 444 (Tex. Civ. App.—Corpus Christi 1977, no writ.) (stating that a lis
pendens’ purpose is to notify a party of a competing claim to real property).
Thus, Pack failed to show as a matter of law that the constructive lien language
in Washington’s letter was a cause in fact of the Funks’ contract termination. By
extension, Pack has failed to prove that the Glenns proximately caused the
termination of the Pack-Funk contract.
Having concluded that Pack failed to meet the burden of proving proximate
cause, we sustain the Glenns’ twelfth and thirteenth issues and reverse that
portion of the trial court’s judgment on the jury’s finding that the Glenns tortiously
interfered with the Pack-Funk contract.10
D. Attorneys’ Fees
Glenn complains that Pack failed to properly segregate attorneys’ fees.
Pack’s attorney testified that he and Pack had a contingent fee agreement and
that he had incurred attorneys’ fees of approximately $92,500 throughout
preparation of the entire case for trial. Of that $92,500, Pack’s attorney testified
10 Based on our disposition of the Glenns’ twelfth and thirteenth issues, we do not reach the Glenns’ first, second, third, fourth, fourteenth, fifteenth, and eighteenth issues. Tex. R. App. P. 47.1.
15 that approximately $10,000 was incurred in furthering Pack’s tortious interference
claim, and that the remaining $82,500 was incurred prosecuting the remaining
claims for breach of contract, declaratory judgment, and fraudulent filing (Chapter
12). Pack’s attorney did not segregate the $82,500 between the breach of
contract, declaratory judgment, and fraudulent filing claims.
The trial court dismissed Pack’s claims for declaratory judgment and
fraudulent filing before sending the tortious interference and breach of contract
claims to the jury. The jury found for Pack on both claims, but it awarded Pack
$0 for his pretrial and trial attorneys’ fees. The trial court granted judgment
notwithstanding the verdict (JNOV) on the jury’s pretrial and trial amount of $0,
replacing it with $82,500.
A trial court may disregard a jury verdict and render a JNOV if no evidence
supports the jury finding on an issue necessary to liability or if a directed verdict
would have been proper. See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d
709, 713 (Tex. 2003); Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d
392, 394 (Tex. 1991). A directed verdict is proper only under limited
circumstances: (1) when the evidence conclusively establishes the right of the
movant to judgment or negates the right of the opponent; or (2) when the
evidence is insufficient to raise a material fact issue. Prudential Ins. Co. of Am.
v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Farlow v. Harris
Methodist Fort Worth Hosp., 284 S.W.3d 903, 919 (Tex. App.—Fort Worth 2009,
pet. denied). To determine whether the trial court erred by rendering a JNOV, we
16 view the evidence in the light most favorable to the verdict under the well-settled
standards that govern legal sufficiency review. See Wal-Mart Stores, Inc. v.
Miller, 102 S.W.3d 706, 709 (Tex. 2003).
The $0 award is clearly wrong because the jury found both tortious
interference and breach of contract. See Tex. Civ. Prac. & Rem. Code Ann.
§ 38.001(8) (Vernon 2008) (stating that a person ―may recover‖ reasonable
attorneys’ fees, in addition to the amount of a valid claim, if the claim is for an
oral or written contract); Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547
(Tex. 2009) (indicating that if attorneys’ fees are proper under 38.001(8), the trial
court has no discretion to deny them); Cale’s Clean Scene Carwash, Inc. v.
Hubbard, 76 S.W.3d 784, 787, 787 n.4 (Tex. App.—Houston [14th Dist.] 2002, no
pet.) (indicating that attorneys’ fees are distinct from damages and that attorney’s
comment in opening statement that he was willing to let the jury decide whether
he ought to get attorneys’ fees has no bearing on statutorily awarded attorneys’
fees in breach of contract claim). However, Pack’s attorney only segregated
$10,000 for the tortious interference claim. Thus, we cannot say what amount of
attorneys’ fees beyond the $10,000 that Pack would be entitled to because
Pack’s attorney did not otherwise segregate the fees. See Tony Gullo Motors I,
L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006) (requiring fee claimants to
segregate fees between claims for which they are recoverable and for which they
are not). When, as here, segregation is required, Pack’s failure to segregate
fees does not mean that he cannot recover any fees; evidence of unsegregated
17 attorneys’ fees for the entire case is some evidence of what the segregated
amount should be, and remand is required to calculate the segregated award.
Id. at 313–14.
Therefore, we sustain the Glenns’ sixteenth issue and reverse and remand
for further proceedings on the issue of attorneys’ fees.11
IV. Trial Court’s Actions
In issues five, seven, and seventeen, the Glenns complain that the trial
court abused its discretion by allowing the jury to award Pack the Glenns’ earnest
money and by failing to grant a mistrial. We will consider issue seven, in which
the Glenns assert that the unavailability of the reporter’s record warranted a
mistrial, with issue six, in which they allege the trial court erred in its responses to
questions passed by the jury after submission of the case.
A. Standard of Review
To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or principles;
in other words, we must decide whether the act was arbitrary or unreasonable.
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d
835, 838–39 (Tex. 2004). An appellate court cannot conclude that a trial court
abused its discretion merely because the appellate court would have ruled
11 We express no opinion on Clause 17 of the Pack-Glenn contract relative to any claim of contractually-based attorneys’ fees.
18 differently in the same circumstances. E.I. du Pont de Nemours & Co. v.
Robinson, 932 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
An abuse of discretion does not occur when the trial court bases its
decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.
1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur as
long as some evidence of substantive and probative character exists to support
the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.
2002).
B. Jury Instruction on Earnest Money
In issue five, the Glenns argue that the Pack-Glenn contract prohibited the
jury from awarding the Glenns’ earnest money to Pack as compensation for his
breach of contract claim.
To preserve a complaint for appellate review, a party must have
presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling, if they are not apparent from
the context of the request, objection, or motion. Tex. R. App. P. 33.1(a). If a
party fails to do this, error is not preserved, and the complaint is
waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
The objecting party must get a ruling from the trial court. This ruling
can be either express or implied. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.
App.—Fort Worth 1999, pet. denied).
19 The Glenns contend that the judgment is defective because it awards
money not properly before the court. But the Glenns have not preserved this
contention for our review because even though they initially objected to the
instruction in the charge conference, the Glenns later agreed that the jury could
decide the issue. At the end of the parties’ discussions on the breach of contract
damages instruction, the Glenns waived their prior objection to the inclusion of
the escrow funds when they narrowed the focus of their objection to the issue of
treble damages:
The jury can decide [if Pack] gets the $50,000 [escrow funds]. That’s fine. If that’s what they decide, we will have to accept it. But they should not have then the right to say we will give you three times the amount when they did not do that portion . . . . They should not get the issue of giving them triple damages . . . . That’s what we’re talking about. That’s the only thing I am talking about.
See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274 (requiring objecting party to
raise all objections to the charge prior to submission of the charge to the jury);
Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 825 (Tex. App.—Dallas
2003, pet denied) (indicating alleged error in jury charge must be preserved by
distinctly designating the error and the grounds for objection).
Because the Glenns failed to preserve this objection, we overrule their fifth
issue.
C. Response to Jury Questions and Absent Reporter’s Record
During deliberations, the jury asked for a list describing each compact disc
containing the parties’ text and audio messages entered into evidence. Because
20 no list had been entered into evidence, the trial court denied the request. The
jury then asked for a copy of Craig Rozen’s testimony so they could create a
timeline. At the time of the jury’s request, the court reporter’s transcript was
unavailable.12 The trial court did not abate deliberations; instead, the court
instructed the jury that if they disagreed as to specific testimony, the jury could
request to have that testimony read to them. The Glenns objected to the trial
court’s responses to the jury, and they requested that deliberations be abated
until the court reporter returned. The trial court overruled the Glenns’ objection
and denied their abatement request. The jury returned to deliberations without
asking any additional questions about the compact discs or Rozen’s testimony.
There is no evidence that the jury disagreed on specific aspects of Rozen’s
testimony. Thus, the trial court properly responded to the jury’s questions. See
Tex. R. Civ. P. 287; Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380,
390 (Tex. App.—Dallas 2003, pet. denied) (noting that the jury must disagree
before witness testimony can be read back to the jury); see also Caterpillar
Tractor Co. v. Boyett, 674 S.W.2d 782, 793 (Tex. App.—Corpus Christi 1984, no
pet.) (stating that rule 287 does not require reading back witness testimony
because some of the jurors have failed to remember the testimony). Having
concluded that the trial court did not abuse its discretion in its responses, we
overrule the Glenns’ sixth and seventh issues.
12 The court reporter had gone on vacation out of state, taking her computer containing the trial record with her.
21 D. Adverse Publicity
In issue seventeen, the Glenns argue that the trial court erred by denying
their motion for mistrial due to adverse publicity.
Texas Rule of Civil Procedure 324 requires that to appeal a complaint of
jury misconduct, a party must first raise the point in a motion for new trial. See
Tex. R. Civ. P. 324(b)(1), 327(a),(b). The Glenns failed to raise the issue in
either their motion for new trial or in the hearing on the motion. Thus, we
overrule the Glenns’ seventeenth issue. See Tex. R. App. P. 33.1; Tex. R. Civ. P.
324(b)(1); Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23 (Tex. 1987).
V. Conclusion
We sustain the Glenns’ twelfth, thirteenth, and sixteenth issues, overrule
their fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and seventeenth issues,
and decline to reach the remaining issues. See Tex. R. App. P. 47.1. Therefore,
we affirm the portion of the trial court’s judgment that the Glenns breached the
Pack-Glenn contract and award of the $50,000 escrow funds, reverse the trial
court’s judgment pertaining to Pack’s tortious interference claim and render
judgment that Pack take nothing on his tortious interference claim, and remand
this case to the trial court for further proceedings to determine attorneys’ fees.
BOB MCCOY JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DELIVERED: January 13, 2011