Affirmed and Majority and Dissenting Opinions filed October 15, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00440-CV

                    ROEL SAENZ-GUERRERO, Appellant
                                        V.
                        JEFFREY GARDNER, Appellee

                   On Appeal from the 269th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2016-54364

                      MAJORITY OPINION

      Appellant Roel Saenz-Guerrero and appellee Jeffrey Gardner were involved
in a vehicle collision and Saenz-Guerrero sued Gardner for negligence. The parties
proceeded to trial and the jury returned a verdict in Gardner’s favor. Saenz-
Guerrero appealed and asserts error in the trial court’s jury charge. We overrule
Saenz-Guerrero’s challenge and affirm the trial court’s final judgment.
                                     BACKGROUND

      In the early-morning hours of August 20, 2015, Saenz-Guerrero was driving
to work in stop-and-go traffic. Saenz-Guerrero brought his truck to a complete
stop and was rear-ended by a vehicle driven by Gardner. Saenz-Guerrero’s truck
sustained damaged on its bumper and tailgate and Saenz-Guerrero went to the
hospital that evening for neck and back pain. Several days later, Saenz-Guerrero
saw a chiropractor for his back pain and was prescribed various treatments,
including electric shocks, injections, and physical therapy. According to Saenz-
Guerrero, he continues to have lower back pain and his doctor has recommended
surgery.

      Saenz-Guerrero sued Gardner for negligence and the parties proceeded to a
jury trial. After the parties rested, the trial court instructed the jury as follows:

      Question No. 1

      Did the negligence, if any, of Jeffrey Gardner proximately cause the
      injuries in question?
      Answer “Yes” or “No.”
      Answer: ________


      If you have answered “Yes” to Question No. 1, then answer the
      following question. Otherwise, do not answer the following question.
      Question No. 2
      What sum of money, if paid now in cash, would fairly and reasonably
      compensate Roel Saenz-Guerrero for his injuries, if any, that resulted
      from the occurrence in question?

Question No. 2 also included six different categories of damages with a blank after
each category.

      During deliberations, the jury sent out the following question: “Can you

                                            2
 clarify the term ‘injuries’ in question? What specific injuries, if any, does this
 refer to?” The trial court’s response stated: “In answer to your question, I instruct
 you to be guided by the instructions in the charge.” After additional deliberations,
 the jury returned its verdict and answered “No” to Question No. 1. The jury did
 not respond to the damages elements in Question No. 2.

       Saenz-Guerrero filed a motion for new trial challenging the wording of
 Question No. 1.     The trial court denied the motion for new trial and Saenz-
 Guerrero timely appealed.

                                      ANALYSIS

       In his sole issue on appeal, Saenz-Guerrero challenges the use of the term
 “injuries” in Question No. 1 and asserts (1) the question did not accurately state the
 law; and (2) the pleadings and evidence did not raise a question of proportionate
 responsibility. We address these issues below.

I.     Saenz-Guerrero Did Not Preserve His Challenge Regarding Question
       No. 1’s Alleged Misstatement of the Law.
       Challenging the plural form of “injuries” as used in Question No. 1, Saenz-
 Guerrero argues Question No. 1 instructed the jury that it could not award damages
 for any of Saenz-Guerrero’s injuries unless it determined that all of Saenz-
 Guerrero’s injuries were proximately caused by Gardner’s negligence. Arguing
 that this question misstates the applicable law, Saenz-Guerrero contends the jury
 should have been permitted to “find that some but not all injuries were caused by
 an occurrence and award damages accordingly.”

       To preserve a charge error complaint for appellate review, a party must
 “point out distinctly the objectionable matter and the grounds of the objection”
 before the charge is read to the jury. Tex. R. Civ. P. 272, 274; see also Operation
 Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 937 S.W.2d 60,
                                           3
69 (Tex. App.—Houston [14th Dist.] 1996), aff’d, 975 S.W.2d 546 (Tex. 1998).
“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. Generally, preservation of error requires the objecting party to
make a complaint “timely and plainly” and obtain a ruling from the trial court.
Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007).

      A charge error objection does not meet Rule 274’s requirements unless the
alleged error and the grounds of the objection are stated specifically enough to
show the trial court was fully cognizant of the objection’s basis and deliberately
chose to overrule it. Bishop v. Miller, 412 S.W.3d 758, 782 (Tex. App.—Houston
[14th Dist.] 2013, no pet.); see also Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 383
(Tex. App.—Houston [1st Dist.] 2011, no pet.). Therefore, the objecting party
must clearly designate the alleged error and specifically explain the basis of its
objection. Burbage v. Burbage, 447 S.W.3d 249, 256 (Tex. 2014). Objections to
the charge and requests for instructions must comport with the arguments made on
appeal. See id. at 257-58 (objection that asked for a question addressing the falsity
of certain statements did not preserve issue alleging that those statements were
entitled to a qualified privilege); see also Bayer Corp. v. DX Terminals, Ltd., 214
S.W.3d 586, 603 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Carousel’s
Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 404-05 (Tex.
App.—Houston [1st Dist.] 2004, pet. dism’d).

      At the charge conference, Saenz-Guerrero’s counsel asserted the following
objection to Question No. 1:

      Your Honor, plaintiff objects or, alternatively, would request a change
      in the word “injuries” in Question Number 1.
      Following the Nabors versus Nabors Texas Supreme Court case from
      2015 about submission of “injuries” versus “occurrence,” injuries is to
                                          4
      be used for instances where there is comparative negligence or there is
      preoccurrence or postoccurrence negligence that could have
      contributed to the injuries.
      For example, in the Nabors versus Nabors case, the issue was that the
      plaintiff was not wearing a seat belt, which could have exacerbated
      the injuries; and hence, that was why the court used that.
      So I would request that the standard PJC “occurrence” be used as
      opposed to “injuries.”

The trial court overruled Saenz-Guerrero’s objection.

      Saenz-Guerrero’s objection challenged Question No. 1’s use of the term
“injuries” only on grounds of comparative, pre-, and post-occurrence negligence,
not on the grounds that the term “injuries” was either patently or latently
ambiguous. This objection did not challenge Question No. 1’s use of “injuries” on
the basis Saenz-Guerrero argues for the first time that the plural form of “injuries”
set up an improper predicate finding that necessitated proving that all of Saenz-
Guerrero’s injuries were proximately caused by Gardner’s negligence. Because
Saenz-Guerrero did not clearly designate this alleged error, he did not preserve the
issue for appellate review. See, e.g., Burbage, 447 S.W.3d at 257-58; Bayer Corp.,
214 S.W.3d at 603; and Carousel’s Creamery, L.L.C., 134 S.W.3d at 404-05.

      Moreover, during deliberations, the jury sent out a note asking the trial
court: “Can you clarify the term ‘injuries’ in question? What specific injuries, if
any, does this refer to?” Commenting on the jury’s question, Gardner’s counsel
stated that “the charge instructs [the jury] sufficiently; and all the evidence is
before them to answer that question based on what they have.” Saenz-Guerrero’s
counsel responded: “I would agree with [Gardner’s counsel], your honor.” Both
parties’ attorneys agreed with the trial court’s response to the jury’s note, which
stated: “In answer to your question, I instruct you to be guided by the instructions
in the charge.”

                                         5
        Although the jury specifically questioned the use of “injuries,” Saenz-
  Guerrero’s counsel did not raise the objection he now asserts on appeal.
  Accordingly, this issue was not preserved for appellate review. See Bayer Corp.,
  214 S.W.3d at 603; cf. Wilson v. E. Tex. Med. Ctr., No. 12-13-00311-CV, 2014
  WL 4215877, at *3-4 (Tex. App.—Tyler Aug. 27, 2014, no pet.) (mem. op.)
  (appellant failed to preserve complaint challenging trial court’s response to jury
  note where appellant “acquiesced to the trial court’s response”).

II.     Question No. 1’s Use of “Injuries” Was Not an Abuse of Discretion in
        the Absence of Evidence of Comparative Negligence.
        Saenz-Guerrero argues the trial court should have used “occurrence” instead
  of “injuries” in Question No. 1 because “there were no allegations of proportionate
  responsibility, contributory negligence, comparative fault, or pre- or post-
  occurrence, injury producing conduct.” Saenz-Guerrero raised this objection at the
  charge conference and preserved the issue for appellate review. See Tex. R. Civ.
  P. 274; see also Bishop, 412 S.W.3d at 782.

        Rule 278 requires the trial court to submit requested questions to the jury if
  those questions are supported by the pleadings and the evidence. See Tex. R. Civ.
  P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). Otherwise, the trial
  court has broad discretion in submitting jury questions so long as the charge fairly
  places the disputed issues before the jury. Tex. Dep’t of Human Servs. v. E.B., 802
  S.W.2d 647, 649 (Tex. 1990); Campbell v. State, 125 S.W.3d 1, 7 (Tex. App.—
  Houston [14th Dist.] 2002, no pet.). The trial court abuses this discretion only
  when it “acts without reference to any guiding principle.” Tex. Dep’t of Human
  Servs., 802 S.W.2d at 649.

        Here, Saenz-Guerrero supports his comparative-negligence argument with
  reference to the following comment to the Texas Pattern Jury Charge on

                                           6
negligence:

      Use of “Injury” or “Occurrence.” “Injury” should be used in this
      question . . . if the issue of the responsibility or more than one person
      is submitted to the jury under the proportionate responsibility statute.
      For suits filed after September 1, 1987, section 33.003 requires a
      finding of “percentage of responsibility” in pure negligence cases as
      well as in “mixed” cases involving claims of negligence and strict
      liability and/or warranty.         The statute defines “percentage of
      responsibility” in terms of “causing or contributing to cause in any
      way . . . the personal injury, property damage, death, or other harm for
      which recovery of damages is sought.”
Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges:
General Negligence, Intentional Personal Torts & Workers’ Compensation PJC
4.1 at 54 (2016) (citations omitted) (emphasis in original). Saenz-Guerrero also
cites Nabors Well Services, Ltd. v. Romero, 456 S.W.3d 553 (Tex. 2015), in which
the Texas Supreme Court discussed the distinction between injury-causing and
occurrence-causing negligence in the context of proportionate responsibility.
Relying on these authorities, Saenz-Guerrero asserts “[n]one of the criteria for
[the] inclusion of ‘injury’ instead of ‘occurrence’ were met” because there “was
not a question of proportionate responsibility in this case.”

      We reject Saenz-Guerrero’s argument. Neither the cited Pattern Jury Charge
comment nor Nabors Well Services, Ltd. addresses the term at issue here, namely,
the use of the word “injuries” in the trial court’s negligence jury question.
Likewise, these authorities do not prohibit the use of “injuries” in a negligence jury
question. Accordingly, these authorities do not show the trial court abused its
discretion by using the term “injuries” in its negligence jury question. See Tex. R.
Civ. P. 278; Tex. Dep’t of Human Servs., 802 S.W.2d at 649. We overrule Saenz-
Guerrero’s challenge to the use of “injuries” in Question No. 1.



                                           7
                                CONCLUSION

      We overrule Saenz-Guerrero’s issue on appeal and affirm the trial court’s
April 5, 2018 final judgment.




                                    /s/       Meagan Hassan
                                              Justice


Panel consists of Justices Christopher, Hassan, and Poissant (Poissant, J.,
dissenting).




                                          8
