Island Recreational Development Corp. v. Republic of Texas Sav. Ass'n

• Decision Date: 07 May 1986
• Docket Number: No. C-3762,C-3762
• Citation: 710 S.W.2d 551
• Parties: ISLAND RECREATIONAL DEVELOPMENT CORPORATION, et al., Petitioners, v. REPUBLIC OF TEXAS SAVINGS ASSOCIATION, et al., Respondents.
• Court: Texas Supreme Court

Page 551

710 S.W.2d 551

ISLAND RECREATIONAL DEVELOPMENT CORPORATION, et al., Petitioners, v. REPUBLIC OF TEXAS SAVINGS ASSOCIATION, et al., Respondents.

No. C-3762.

Supreme Court of Texas.

May 7, 1986.

Rehearing Denied June 25, 1986.

Robert M. Hardy, Jr., Butler & Binion, Houston, Jon B. Burmeister, Moore, Landrey, Garth & Jones, Beaumont, for petitioners.

Carrin F. Patman, Bracewell & Patterson, Houston, Roger S. McCabe, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Brian R. Davis, Davis DeShazo & Gill, Austin, for respondents.

ON MOTION FOR REHEARING

WALLACE, Justice.

We grant the motion for rehearing, withdraw the opinion and judgment of July 3, 1985, and substitute this opinion.

Island Recreational Development Corporation and Sea Cabins, Inc. (Island) sued Republic Bank of Texas Savings Association and Bankers Capital Corporation (Republic) for breach of contract in failing to comply with its obligations under a loan commitment letter. The trial court rendered judgment for Island for $667,882.87 in actual damages and $52,500 in attorneys' fees. The court of appeals reversed the judgment of the trial court and rendered judgment for Republic. 680 S.W.2d 588. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Island paid $40,000 for a loan commitment letter under which Republic was to fund mortgages to qualified purchasers of Sea Cabins Condominiums at 13 3/8 percent interest. The commitment letter was to expire on March 15, 1981. In August, Island paid an additional $20,000 to have the expiration date extended until September 15, 1981. The interest rate was also raised to 13 7/8 percent. The commitment letter provided in part:

Bankers Capital Corporation shall agree to make first mortgage loans under this commitment based on the following terms and conditions:

....

15. Transfer of Commitment

This commitment is nontransferable or assignable to any other individual, corporation or entity unless specifically approved in writing by Bankers Capital Corporation.

....

17. Commitment Term

This commitment shall remain in effect until March 15, 1981. Applications for loans must be received at least 30 days prior to this date and closings and fundings of the loans must be completed prior to March 15, 1981.

On September 14, 1981, Michael J. Ryan, President of Island, wrote Richard S. Waring, Senior Vice-President of Republic, that the provisions of the commitment contract had been met. Ryan demanded that Republic honor its mortgage commitment. Waring responded that the terms and conditions were not satisfied and denied any obligation to fund the loans. Waring alleged that the construction was not completed by the deadline. He also asserted, "paragraph 17 requires that loan applications were to have been received at least 30 days prior to September 15, 1981. This requirement was not met."

Island contends Republic waived its right to demand strict compliance with the condition, or was estopped to deny its obligation to perform. The trial record reflects that both parties, the court and the jury were aware that waiver was an important element in the trial.

Both Island and Republic requested the trial court to submit issues that included waiver. The trial court rejected the requested issues of both parties and submitted a broad issue which asked:

Do you find from a preponderance of the evidence that plaintiffs performed their obligations under the commitment letter in question?

ANSWER: "We do."

The trial court submitted no instructions with the above issue and neither party objected to the charge on this ground. However, when the totality of the trial proceedings are considered it is apparent that waiver of Paragraph 17 of the letter of commitment was considered by the jury and found adversely to Republic.

We recognize that waiver is an independent ground of recovery or defense and must be pleaded and proved as such. That is not the question before us. Our question is whether it is reversible error for a trial judge to submit a single broad issue encompassing more than one independent ground of recovery.

Rule 277 of the Texas Rules of Civil Procedure specifically states that:

It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues. Inferential rebuttal issues shall not be submitted. (emphasis added).

In Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984), we reemphasized our approval of broad issue submission. We stated:

In 1973, after sixty years, it became apparent that Texas courts ... had substituted in the place of instructions, a jury system that was overloaded with granulated issues to the point that jury trials were again ineffective. The Supreme Court in 1973 amended Rule 277, Tex.R.Civ.P., by abolishing the requirement that issues be submitted distinctly and separately. Since that time, broad issues have been repeatedly approved by this court as the correct method for jury submission.

This court's approval and adoption of the broad issue submission was not a signal to devise new or different instructions and definitions. We have learned from history that the growth and proliferation of both instructions and issues come one sentence at a time. For every thrust by the plaintiff for an instruction or an issue, there comes a parry by the defendant. Once begun, the instructive aids and balancing issues multiply. Judicial history teaches that broad issues and accepted definitions suffice and that a workable jury system demands strict adherence to simplicity in jury charges. (emphasis added)

The Lemos case, while our latest pronouncement upon this subject, was founded upon a long and distinguished line of authority beginning with Haas Drilling Co. v. First National Bank in Dallas, 456 S.W.2d 886 (Tex.1970) where we stated:

[I]t is quite clear that there will be no reversal in non-negligence cases simply because the issue is too broad or too small. The trial court has almost complete discretion, so long as the issue in question is unambiguous and confines the jury to the pleading and the evidence. 456 S.W.2d at 889 (quoting G. Hodges, Special Issue Submission in Texas [Supp.1969] ).

In Scott v. Ingle Brothers Pacific, Inc., 489 S.W.2d 554 (Tex.1972) we upheld an issue which inquired "[d]o you find ... that H.L. Scott was discharged by the Defendant without good cause?" against an objection that the issue was too broad. We re-urged our holding in Haas that the trial court has wide discretion to submit broad issues. Id. at 557. In Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974), decided only three months after we adopted the amended version of Rule 277, we recommended that a single broad negligence issue be given rather than giving issues on each of the many various elements of a negligence cause of action. In Siebenlist v. Harville, 596 S.W.2d 113 (Tex.1980), we again approved this form of submission when we upheld the single issue submission of gross negligence. In Burk Royalty Co. v. Walls, 616 S.W.2d 911, 924 (Tex.1981), we stated:

It is understandable that a rule requiring issues to be submitted 'distinctly and separately' which prevailed from 1913 until 1973 would slowly relinquish its hold upon trial practice, but after 1973, Rule 277, as amended, permits the submission of issues broadly even though they include a combination of elements or issues. This court, in addition to the times it has written in the opinions already cited, has on a number of other occasions, approved broad submissions. [Citing dozens of cases both by this court and by courts of appeals.]

Our exasperation at the bench and the bar for failing to embrace wholeheartedly broad issue submission is thinly veiled in the above quote. See also, Maples v. Nimitz, 615 S.W.2d 690 (Tex.1981) and Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.1980). This court has clearly mandated that Rule 277 means precisely what it says and that trial courts are permitted, and even urged, to submit the controlling issues of a case in broad terms so as to simplify the jury's chore.

In the instant case the controlling issue, the only issue which would authorize a recovery by Island, was whether Island had performed all of the things required by Republic as conditions precedent so as to entitle Island to enforce the commitment. This was precisely the single issue the trial court chose to submit to the jury.

We hold that in the instant case the trial judge was following the policy this court has enunciated concerning broad issue submissions. We further hold that, when requested, the trial court should submit appropriate accompanying instructions. However, we decline to say that the failure to do so is reversible error per se. To determine whether an alleged error in the jury charge is reversible, the reviewing court must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Alleged error will be deemed reversible only if, when viewed in the light of the totality of these circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434.

In the instant case, if the absence of an instruction on waiver was detrimental to either party, it was Island. Nonetheless, Island received a favorable jury verdict. Republic, as the complaining party, has failed to demonstrate harm from an alleged error from which it benefited. When the totality of this case is considered, we find no reversible error on the part of the trial court in broadly submitting the case to the jury.

The court of appeals held there was no evidence of waiver by Republic. In deciding a no evidence point, the appellate court must consider only the evidence and...