Opinion
No. 07-19-00302-CV
09-17-2020
ALSAY, INCORPORATED, APPELLANT v. GICON PUMPS & EQUIPMENT, INC., APPELLEE
On Appeal from the 237th District Court Lubbock County, Texas
Trial Court No. 2017-526,370, Honorable Les Hatch, Presiding
CONCURRING OPINION
Before PIRTLE and PARKER and DOSS, JJ.
I concur with the majority's conclusion that the district court's submission of Question 1 to inquire about the meaning of "Full Submittals per Specifications" was not harmful. However, I disagree with the majority's holding that the district court's submission of the question was in error.
Like Alsay, the majority focuses its analysis on whether any pleading alleged an "ambiguity." TEX. R. CIV. P. 278 is not so restrictive, requiring only that the submitted questions, instructions and definitions be "raised by the written pleadings and the evidence." (emphasis added). Opinions by the Supreme Court of Texas and this Court have looked beyond a mere word search, opting instead to examine whether the submitted issue was raised in the pleadings. See Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002) (looking to whether questions and instructions "find[] support" in the pleadings and evidence); BNSF Ry. Co. v. Epple, 07-15-00355-CV, 2016 Tex. App. LEXIS 12730, at *2 (Tex. App.—Amarillo Nov. 30, 2016, pet. denied) (examining whether the jury charge is submitted "on issues raised by the pleadings and evidence.").
Alsay pleaded as an affirmative defense that it "was discharged from performance due to Plaintiff's material breach of the terms of the purchase order." What did Alsay allege to be the material breach? It elaborated five paragraphs later: "[Gicon] materially breached the purchase order by placing the order into production with General Electric prior to receiving submittals from the engineers through [Alsay]." (emphasis and alteration added). Via submission of Question 1, the district court simply asked whether "Gicon was required to receive engineer[-]approved submittals from Alsay before Gicon ordered the motors from GE," the precise issue raised in Alsay's pleadings. I would hold that Question 1 clearly finds support in the pleadings.
Consider Alsay's proposed jury charge, which requests submission of similar question:
QUESTION 1:
Did Gicon fail to comply with the terms of Purchase Order 2984 by having General Electric manufacture the four 500-horsepower motors without going through the submittals process first?
Further, I would hold that after the district court determined the purchase order to be ambiguous, it had no choice but to submit the question to the jury for determination notwithstanding the absence of a pleaded "ambiguity." Whether a contract is ambiguous is a question of law that the trial court may decide sua sponte. Progressive County Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 808 (Tex. 2009); Sage Street Associates v. Northdale Const. Co., 863 S.W.2d 438, 445 (Tex. 1993). The majority's holding improperly permits the parties to restrict the court from performing its legal duty by essentially ignoring the ambiguity, once found. Put another way, the holding creates a procedural dead end: how will the parties' intentions ever be determined unless they are addressed by the finder-of-fact? In summary, I do not believe that the parties' failure to allege an ambiguity divests the district court of its obligations.
For the above reasons, I would hold that the district court properly exercised discretion in including Question 1 in its charge. In all other regards, I agree with and join in the majority opinion.
Lawrence M. Doss
Justice