Sears, Roebuck & Co. v. Abell

Decision Date10 February 2005
Docket NumberNo. 08-03-000031-CV.,08-03-000031-CV.
Citation157 S.W.3d 886
PartiesSEARS, ROEBUCK & CO. d/b/a Sears Heating and Air Conditioning, and D/FW Home Improvement Specialists, Inc. d/b/a Home Improvement Specialists, Inc., and Randy Sprinkle d/b/a Texas Air Conditioning & Plumbing, Appellants, v. Steven ABELL and Peggy Abell, Appellees.
CourtTexas Court of Appeals

A. Scott Campbell, Law Offices of A. Scott Campbell, McKinney, for Appellants.

Rebecca E. Bell, Fee, Smith, Sharp & Vitullo, L.L.P., J. Robert Miller Jr., Miller & Brown L.L.P., Lisa A. Stegall, Dallas, for Appellees.

Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.

OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the entry of a judgment against all Appellants after a jury trial. The original proceeding was tried upon allegations of negligence, negligence per se, and violations of the Texas Deceptive Trade Practices Act. Cross-claims filed by the various defendants were also tried. The trial court's judgment entered a finding in favor of Appellees against Appellant Sears, in favor of Sears against Appellant D/FW, and in favor of D/FW against Appellant Randy Sprinkle. Each Appellant appeals asserting separate issues of error. For the reasons stated, we affirm the judgment of the trial court.

I. PROCEDURAL AND FACTUAL HISTORY

Appellees purchased a heating unit from Appellant Sears in September of 1997. Included in the purchase of the unit was the installation costs. Appellant Sears had an existing contract with Appellant D/FW which provided that D/FW was to install the unit in the Abell home as an authorized Sears contractor. Appellant D/FW, without permission from Sears, had contracted with Randy Sprinkle d/b/a Texas Air Conditioning and Plumbing, to install the heating unit. The heating unit was installed in the Abell home on September 10, 1997. On the morning of November 17, 1997, the heating unit caught fire causing significant damage to the Abells' home and personal property.

A subsequent investigation by the City of Arlington and the fire arson investigator revealed that the heating unit had not been installed correctly and that none of the Appellants had obtained the necessary permits from the City of Arlington. The determination of the fire arson investigator and the electrical inspector was that the cause of the fire was the use of faulty connections to install the heating unit.

Appellees filed their Original Petition against Appellants Sears and D/FW on October 27, 1998. Appellees filed numerous amended petitions and ultimately sued all Appellants under theories of negligence and for violation of the Texas Deceptive Trade Practices Act.1 Each Appellant filed cross-claims against all the other Appellants for contribution and indemnity as well as for breach of contract claims.2 After a trial to a jury, the trial court entered a judgment awarding damages in favor of the Appellees. Appellees elected to recover damages from Sears. The judgment reflected that decision and also entered a judgment in favor of Sears against D/FW and in favor of D/FW against Randy Sprinkle.

Appellant Sears appeals complaining of error in the charge submitted to the jury in one issue with two sub-arguments. Appellant D/FW asserts error was committed by the trial court in three issues. Appellant Randy Sprinkle asserts error was committed by the trial court in four issues.

II. DISCUSSION
A. Appellant Sears' Issue No. One

Appellant Sears, in its sole issue, asserts that the trial court committed error by failing to submit a question on the proportionate responsibility of its co-defendants under Texas Business and Commerce Code Section 17.555. Sears argues that the trial court was obligated to submit a specific question to the jury regarding the liability of Appellants D/FW and Sprinkle under the Texas Deceptive Trade Practices Act inquiring about the proportionate responsibility of each. The threshold determination to be made before reaching this issue, however, is whether the matter was properly preserved for review.

To preserve error in the charge in a civil matter, the objecting party must distinctly designate the error and the grounds for the objection. See TEX.R.APP. P. 33.1(a); Tex.R. Civ. P. 272; Keetch v. Kroger Co., 845 S.W.2d 262, 267 (Tex.1992).

In order to preserve charge error, appellant must comply with Texas Rules of Civil Procedure Rules 271-79. If the error is the omission of an instruction relied on by the requesting party, three steps are required by the Rules to preserve error: a proper instruction must be tendered in writing and requested prior to submission; a specific objection must be made to the omission of the instruction; and the court must make a ruling. Wright Way Const. Co., Inc. v. Harlingen Mall Co., 799 S.W.2d 415, 418 (Tex.App.-Corpus Christi 1990, writ denied). Texas Courts have repeatedly held that an objection and a proper request are required to preserve charge error if the trial court omits a question, definition, or instruction relied on by the requesting party. See, e.g., National Fire Ins. v. Valero Energy Corp., 777 S.W.2d 501, 508 (Tex.App.-Corpus Christi 1989, writ denied); Texas Cookie Co. v. Hendricks & Peralta, Inc., 747 S.W.2d 873, 878 (Tex.App.-Corpus Christi 1988, writ denied); Donnelley Marketing v. Lionel Sosa, Inc., 716 S.W.2d 598, 602 (Tex.App.-Corpus Christi 1986, no writ). See also Texas Power & Light Co. v. Barnhill, 639 S.W.2d 331, 334 (Tex.App.-Texarkana 1982, writ ref'd n.r.e.). The Texas Supreme Court has interpreted the rules in this manner for at least thirty-five years. Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955). One reason why both are required is found in the language of Rule 274 which states in part: "A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a[n]... instruction, on account of any ... omission ... is waived unless specifically included in the objections." Rule 272 also states a specific objection is required to preserve error. Rule 278 creates a limited exception if the question is relied on by the opposing party. See Wright Way Const. Co., 799 S.W.2d at 418-19.

The second reason why both a specific objection and a request is required in this situation is to protect the trial court from committing reversible error during the charge hearing. Historically, charge error has been a serious problem in Texas. See, e.g., Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984) (discussing problems prior to broad submission). The purpose of a Rule 274 objection is to require the attorneys to bring to the court's attention the error in the charge, and thereby eliminate the potential for reversal caused by charge error. Rule 278 requires that the requested instruction be tendered in writing prior to submission. This rule indicates that a specific objection is not required where a question is relied upon by the opposing party. In this case, the requested question was relied on by the requesting party, thus an objection and a request for submission was required to preserve error. Yellow Cab & Baggage Co., 277 S.W.2d at 93; TEX.R. CIV. P. 274. A ruling is also required to preserve error. See Acord v. General Motors Corp., 669 S.W.2d 111, 114 (Tex.1984); Tex.R. Civ. P. 272, 276; Tex.R.App. P. 52(a) (now TEX.R.APP. P. 33.1). To summarize, if the trial court refuses to instruct or tender a question on an issue relied upon by the requesting party, to preserve error the party must object, tender and request, and obtain a ruling. Wright Way Const. Co., Inc., 799 S.W.2d at 419.

Rule 274 sets forth a rigorous standard for sufficiency of charge objections: party objecting to a charge must point out distinctly the objectionable matter and the grounds for the objection. 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. When the complaining party's objection, or requested question, definition, or instruction is, in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable. No objection to one part of the charge may be adopted and applied to any other part of the charge by reference only. Id.

This Rule creates a two pronged test: objections to the charge must specify the error and the legal basis of the objection. Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex.1986). Rule 274 is strictly construed. For example, in Castleberry, the objection that the instructions might "confuse the jury" or "prejudice the defendant" was held too general because it did not explain why the instruction was defective or how it would confuse the jury or prejudice the defendant. Wright Way Const. Co., Inc., 799 S.W.2d at 420. Our next step is to determine if a substantially correct instruction was properly tendered in writing and requested prior to submission and separate and apart from the objections, Greenstein, Logan & Co. v. Burgess Mktg. Inc., 744 S.W.2d 170, 182 (Tex.App.-Waco 1987, writ denied); see also Valero, 777 S.W.2d at 507; Tex.R. Civ. P. 272, 277, 278. Our first inquiry in this case is whether Appellant Sears tendered the appropriate question in substantially correct form. See Wright Way Const. Co., Inc., 799 S.W.2d at 421; TEX.R. CIV. P. 278.

Sears complains on appeal that a question regarding the proportionate responsibility of the co-defendants was not included in the final jury charge. Appellant Sears did not submit the question about which it is presently complaining in substantially correct form. The question was not included in the proposed charge prepared by Sears nor was it ever addressed by the trial court. Appellant Sears did not object to its lack of inclusion in the charge nor...

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