Affirmed and Majority and Dissenting Opinions filed March 17, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00480-CV

                ARBOR WINDSOR COURT, LTD., Appellant

                                         V.
                       WEEKLEY HOMES, LP, Appellee

                    On Appeal from the 165th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2009-55538

                      MAJORITY OPINION

      Appellant, Arbor Windsor Court, Ltd. (Arbor), appeals the trial court’s
judgment following a jury verdict.      Specifically, in two main issues, Arbor
contends the trial court erred in rendering a take-nothing judgment on its breach of
contract claims against Weekley Homes, LP (Weekley). Weekley also asserts two
conditional cross-points in support of the trial court’s judgment. We affirm.
                                 I. BACKGROUND

A.    Summary Factual Background

      In April 2006, Arbor and Weekley entered into an “Agreement for Sale and
Purchase of Lots” (the Agreement) whereby Arbor would purchase the land and
develop the lots, and then Weekley would buy the developed lots. To that end,
Arbor secured a $3,850,000 loan to purchase the land and develop 32–35 lots.
Arbor’s loan had a two year payoff, beginning on June 30, 2006, and was secured
by a deed of trust. The Agreement between Arbor and Weekley provided a rolling
schedule for Weekley to purchase the lots. From 2006 to December 1, 2008, the
disputed evidence at trial showed that each party believed the other was not
fulfilling its obligations under the Agreement and they attempted resolution
through amended agreements, culminating in the parties’ final Fourth Amendment.
By this time, Weekley had bought only 18 of the lots and, as a result, Arbor
alleges, Arbor was in default on the loan.

      In March 2009, the mortgage company advised Arbor that Texas
Community Bank purchased its loan.               Arbor later learned the loan had been
subsequently purchased by FETC, the entity which eventually gave Arbor notice of
its intent to post the land for foreclosure. Arbor proposed to Weekley that Arbor
and Weekley jointly attempt to avoid the foreclosure.            They did not.   FETC
foreclosed on the property.      Weekley appeared at the foreclosure sale and
purchased the property for $1,320,000.




                                             2
B.     Procedural Background

       Arbor sued Weekley1 for breach of the Agreement and its amendments for
failing to purchase lots according to the schedule, as well as for fraud and wrongful
foreclosure. Weekley counter sued Arbor for breach of contract. The parties tried
their claims to a jury. 2 Some of the jury’s answers favored Arbor and some
favored Weekley. Because the issues dispositive of this appeal turn entirely upon
the jury’s answers to (or failures to answer) Questions Nos. 1, 2, 3, and 4, we set
forth those questions and any associated predicate instructions verbatim, along
with the responses from the jury:

     • Question No. 1

       Question No. 1
       Do you find that Arbor Windsor Court performed all of the conditions
       precedent to the agreement as set forth below:

               Provided Weekley Homes with 15 days written notice of
               default under the written agreement so that Weekley
               could cure such default.

       Answer “Yes” or “No.”

The jury answered Question No. 1 “No.”



       1
           This litigation began with Arbor’s suit against FETC seeking to enjoin foreclosure.
Arbor also filed a notice of lis pendens. Weekley learned of the lis pendens when it attempted to
sell a home in the subdivision; it intervened in the “Arbor v. FETC” suit to quiet title and to
obtain a release of the lis pendens. Arbor then amended its petition, adding additional claims
against FETC, Weekley, and various homeowners. Weekley obtained its quiet title and a release
of the lis pendens. Arbor then non-suited the homeowners and FETC, thereby leaving Weekley
as the only defendant at trial.
       2
          The trial court ruled that the only questions to be submitted to the jury were on the
parties’ respective breach of contract claims, thereby directing a verdict on Arbor’s other claims.
Arbor does not appeal from this decision.


                                                3
   • Question No. 2

Question No. 2 is preceded by the following predicate instruction: “If you
answered ‘Yes’ to Question No. 1, answer the following question.
Otherwise, do not answer question No. 2.”

       Question No. 2
       Was Arbor Windsor Court excused from sending a notice of default
       to Weekley Homes?

      You are instructed that Arbor Windsor Court is excused from
      complying if the failure, if any, was
           1. not material, or
           2. was waived, or
           3. if Weekley Homes anticipatorily repudiated the
           agreement or
           4. if Weekley Homes is estopped from complaining of
           Arbor Windsor Court’s failure to comply with the
           agreement.

      Answer “Yes” or “No.”

The jury did not answer Question No. 2 because of the predicate.

   • Question No. 3

       Question No. 3
       Did Weekley Homes fail to comply with the agreement?

      You are instructed that Weekley Homes is excused from complying if
      the failure, if any, was
             1. not material, or
             2. was waived, or
             3. if Arbor Windsor Court anticipatorily repudiated the
             agreement
             4. if Arbor Windsor Court is estopped from complaining
             of Weekley’s failure to comply with the agreement.

      Answer “Yes” or “No.”


                                        4
The jury answered Question No. 3 “Yes.”

     • Question No. 4

       Question No. 4
       Did Arbor Windsor Court fail to comply with the agreement?

       You are instructed that Arbor Windsor Court is excused from
       complying if the failure, if any, was
            1. not material, or
            2. was waived, or
            3. if Weekley Homes anticipatorily repudiated the
            agreement or
            4. if Weekley Homes is estopped from complaining of
            Arbor Windsor Court’s failure to comply with the
            agreement.

       Answer “Yes” or “No.”

The jury answered Question No. 4 “No.”

       Arbor sought judgment on the jury verdict based upon the jury’s answer to
Question No. 3 (Weekley failed to comply). Weekley sought judgment on the jury
verdict based upon the jury’s answer to Question No. 1 (Arbor did not perform the
condition precedent), or in the alternative, judgment notwithstanding the verdict.
The trial court rendered a take-nothing judgment in favor of Weekley without
specifying the basis therefor. This appeal ensued.

                                    II. ANALYSIS

A.     Weekley’s Motion for Judgment on the Verdict

       The sole basis for Weekley’s motion for judgment on the verdict was the
jury’s answer to Question No. 1. As a factual matter, Arbor did not and does not
here dispute that it failed to send the written notice. Arbor’s factual position is that



                                           5
it “accepted Weekley’s request not to send this notice.” Therefore, Arbor does not
challenge the sufficiency of the evidence to support the answer to Question No. 1.

       Instead, Arbor argues two independent legal reasons that the jury’s answer
to Question No. 1 on condition precedent does not support a Weekley Homes
judgment. Both of these issues turn on well-established law governing conditions
precedent: A condition precedent must either be met or excused before the other
party’s obligation may be enforced.3 See Hohenberg Bros. Co. v. George E.
Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976). First,4 Arbor argues that Question
No. 1 should not have been submitted to the jury because the contractual fifteen-
day notice provision is not a condition precedent as a matter of law. 5 Second,
Arbor argues that even if the notice provision is a condition precedent, the jury’s

       3
          We note that in some circumstances abatement is the proper remedy for the failure of a
party to provide notice of default and an opportunity to cure. See, e.g., Shafighi v. Tex. Farmers
Ins. Co., No. 14-12-00082-CV, 2013 WL 1803609, at *5 (Tex. App.—Houston [14th Dist.] Apr.
30, 2013, no pet.) (mem. op.) (noting that the insurer’s remedy to enforce a condition precedent
in its policy is abatement). In this case, Weekley did not ask the trial court to abate the action or
otherwise afford an opportunity to cure the default. However, Arbor does not argue, and
therefore we do not reach, any question about (a) whether Weekley waived the condition
precedent by its failure to seek abatement and an opportunity to cure or (b) whether a take
nothing judgment is a proper remedy for Arbor’s alleged unexcused failure to comply with a
condition precedent to give notice of default and an opportunity to cure. As such, we assume for
this case, as have the parties, that Arbor may not recover in breach of contract if it has failed to
perform an unexcused condition precedent.
       4
          We reorder Arbor’s issues and first address the trial court’s ruling on the motion for
entry of judgment on the jury’s verdict because that issue is dispositive of the appeal.
       5
          Weekley contends that Arbor’s challenge is actually a complaint of charge error, which
Arbor waived by failing to lodge this objection to the question in the trial court. Arbor does not
contend that it preserved a challenge to the wording of Question No. 1. Instead, Arbor argues
that, as a legal matter, this court “may look at the written notice provision and determine it is a
mere covenant, and not a condition precedent.” Because we conclude that the notice provision is
a condition precedent, we need not resolve whether Arbor has waived its complaint as an error in
the jury charge or whether Arbor has not waived its complaint as an error in the judgment. See,
e.g, Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 105 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) (distinguishing between a claim of jury charge error and a claim that the charge, as
submitted, cannot support the judgment).


                                                 6
answer to Question No. 1 became immaterial when the jury explicitly found, in
answer to Question No. 4, that Arbor did not fail to comply with the Agreement
and thereby implicitly determined that Arbor was excused from performing the
condition precedent.

B.    Standard of Review for Entry of Judgment on Jury Verdict

      Our review of a trial court’s entry of judgment on a jury verdict presents a
pure question of law. Tex Star Motors, Inc. v. Regal Fin. Co., Ltd., 401 S.W.3d
190, 202 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (noting that determining
the legal effect of the jury’s answers is a question of law). As such, we review the
trial court’s decision de novo. See Hicks v. Hicks, 348 S.W.3d 281, 284 (Tex.
App.—Houston [14th Dist.] 2011, no pet.) (“We review questions of law de
novo.”); see also Resurgence Fin., L.L.C. v. Lawrence, No. 01-08-00341-CV, 2009
WL 3248285, at *2 (Tex. App.—Houston [1st Dist.] Oct. 8, 2009, no pet.) (mem.
op.) (citing In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (stating in the
context of entry of judgment that “questions of law are always subject to a de novo
review”)).

      1.     The fifteen-day notice provision is a condition precedent.

      The Agreement included the following fifteen-day notice provision:

      Notwithstanding the foregoing, Seller and Purchaser covenant and
      agree, each with the other, to give fifteen (15) days’ written notice of
      any default during which time same may be cured prior to exercise of
      any rights or remedies pursuant to this Agreement.

As outlined above, the jury determined that Arbor did not perform the “condition
precedent” to provide Weekley with fifteen days’ written notice of default.

      We resolve whether a contractual provision is a covenant or a condition
precedent by examining the entire contract to determine the parties’ intent. See

                                         7
constitutes conditional language that is completely without meaning unless it
creates a condition precedent.

      The parties are in accord on the general principles of contract interpretation
as it relates to conditions precedent. To glean the parties’ intent to create a
condition precedent, we look for conditional language such as “if,” “provided
that,” or “on condition that.” Id. Our task is to construe the entire agreement, and
that task is not altered by the parties’ use of “magic words” in the contract or the
absence of such words. See id.; see also Hirschfeld Steel Co. v. Kellogg Brown &
Root, Inc., 201 S.W.3d 272, 281–82 (Tex. App.—Houston [14th Dist.] 2006, no
pet.) (refusing to find even from the parties’ use of the word “condition” that the
parties meant “condition precedent”).

      We note, too, that the conditional language must connect the condition
precedent to the conditioned obligation. See Solar Applications Eng’g, Inc. v T.A.
Operating Corp., 327 S.W.3d 104, 110 (Tex. 2010) (rejecting the notion that
conditioning some obligations necessarily operates to condition others). In other
words, the mere existence of conditional language within a contract does not
suggest that all obligations of one party are conditions precedent to the
performance by the other party. By way of simple example, the Dallas Court of
Appeals easily rejected a general contractor’s attempt to condition its full payment
on a landscaping subcontractor’s promise to complete its work within ten days.
See Landscape Design & Constr., Inc. v. Harold Thomas Excavating, Inc., 604
S.W.2d 374, 377 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.). In that case,
Article III of the parties’ contract provided that “[t]ime is of the essence and the
subcontractor agrees to complete the work as described in Article II within 10
working days of commencement.”          Id.   Article V contained the conditional
language: “Full payment shall be due when the work described in this contract is

                                         9
constitutes conditional language that is completely without meaning unless it
creates a condition precedent.

      The parties are in accord on the general principles of contract interpretation
as it relates to conditions precedent. To glean the parties’ intent to create a
condition precedent, we look for conditional language such as “if,” “provided
that,” or “on condition that.” Id. Our task is to construe the entire agreement, and
that task is not altered by the parties’ use of “magic words” in the contract or the
absence of such words. See id.; see also Hirschfeld Steel Co. v. Kellogg Brown &
Root, Inc., 201 S.W.3d 272, 281–82 (Tex. App.—Houston [14th Dist.] 2006, no
pet.) (refusing to find even from the parties’ use of the word “condition” that the
parties meant “condition precedent”).

      We note, too, that the conditional language must connect the condition
precedent to the conditioned obligation. See Solar Applications Eng’g, Inc. v T.A.
Operating Corp., 327 S.W.3d 104, 110 (Tex. 2010) (rejecting the notion that
conditioning some obligations necessarily operates to condition others). In other
words, the mere existence of conditional language within a contract does not
suggest that all obligations of one party are conditions precedent to the
performance by the other party. By way of simple example, the Dallas Court of
Appeals easily rejected a general contractor’s attempt to condition its full payment
on a landscaping subcontractor’s promise to complete its work within ten days.
See Landscape Design & Constr., Inc. v. Harold Thomas Excavating, Inc., 604
S.W.2d 374, 377 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.). In that case,
Article III of the parties’ contract provided that “[t]ime is of the essence and the
subcontractor agrees to complete the work as described in Article II within 10
working days of commencement.”          Id.   Article V contained the conditional
language: “Full payment shall be due when the work described in this contract is

                                         9
fully completed and performed consistent with Article II and Article IV.” Id.
Neither Article III nor the ten-day promise was mentioned in Article V. Id. Thus,
the court determined, the promise contained in Article III was not a condition to
the full payment obligation in Article V because “Article V makes completion of
the work according to Article II the only condition precedent to [the
subcontractor’s] right to full payment.” Id.

      Turning to Arbor’s argument regarding construction, we acknowledge the
facial appeal of Arbor’s first argument that the parties chose the words “covenant
and agree” as the introductory phrase to the contested provision. However, a
single word or provision cannot be given controlling effect. See J. M. Davidson,
Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). The words “covenant and
agree” do not always signal that a provision is purely a covenant. See Cal-Tex
Lumber Co. v. Owens Handle Co., 989 S.W.2d 802, 809–10 (Tex. App.—Tyler
1999, no pet.). Nor do those words foreclose our review of the remainder of the
contract. Although we resist any interpretation that results in forfeiture, we must
nonetheless construe the entire provision to have meaning.             See Cajun
Constructors, Inc. v. Velasco Drainage Dist., 380 S.W.3d 819, 826 (Tex. App.—
Houston [14th Dist.] 2012, pet. denied) (noting that in our effort to avoid
construing a provision as a condition precedent we may not ignore plain language).
Therefore, the parties’ use of the words “covenant and agree” is not dispositive of
the construction.

      Arbors’ second contract construction argument concerning a potential
absurd result misses the mark. Focusing on conditions precedent to formation,
Arbor suggests that to construe the notice provision in this case as a condition
precedent to formation of the contract would lead to an absurd result and is
therefore an impermissible construction. See Criswell, 792 S.W.2d at 948 (noting

                                         10
that when a condition would impose an absurd or impossible result, the agreement
must be interpreted as a covenant rather than a condition). We agree, as to contract
formation; a party could not be required to give notice of default prior to the
formation of the contract. However, there are two types of conditions precedent.
One is a condition to the formation of a contract and the other is a condition to an
obligation to perform an existing agreement. Hohenberg Bros. Co. v. George E.
Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976). Indeed, the jury charge defined a
“condition precedent,” without objection, as “an event that must happen or be
performed before a right can accrue to enforce an obligation.” Arbor does not
address conditions precedent to obligations within an existing contract and,
therefore, does not explain how it would be absurd that Arbor’s right to resort to
remedies under the Agreement is conditioned on its first providing notice to
Weekley that it is in default and providing Weekley fifteen days to cure such
default. This court has, without absurd results, construed other notice provisions as
conditions precedent tied to acts or events that occur subsequent to the making of
the contract. See, e.g., Cajun Constructors, 380 S.W.3d at 826. We conclude that
the construction of the notice provision in this case as a condition precedent does
not lead to an absurd result.

      The parties do not cite, and we have not found, any cases construing
identical language that couples “covenants and agrees” with “prior to.” We are
persuaded, however, that Weekley is correct that the provision, as a whole and as
written, contains explicit conditional language—“prior to”—that will have no
meaning if construed as no more than a mere covenant. By their agreement,
“Seller and Purchaser covenant and agree, each with the other, to give fifteen (15)
days’ written notice of any default during which time same may be cured prior to
exercise of any rights or remedies pursuant to this Agreement.” The sentence does


                                         11
not contain the oft-cited traditional conditioning language: “if,” “provided that,” or
“on condition that.” But, again, we are not looking for magic words. Texas courts
have found other words and phrases to be conditional language.             See Dallas
Berkshire Partners, Ltd. v. James French Photography, Inc., No. 05-98-01352-CV,
2001 WL 200144, at *5 (Tex. App.—Dallas Mar. 1 2001, pet. denied) (not
designated for publication) (holding that the notice-of-default provision stating
“Tenant shall not exercise any such remedy unless” is a condition precedent to
recovery for breach); see also Wright v. Modern Group, Ltd., No. 13-12-00293-
CV, 2013 WL 4714930, at *7 (Tex. App.—Corpus Christi Aug. 30, 2013, pet.
denied) (mem. op.) (holding that the term “qualifying event payment” constituted
conditional language).

       By contrast, the language construed by courts to be mere covenants without
condition is wholly distinguishable. For example, our sister court construed an
arbitration provision that required “[e]ach of the parties [to] pay an equal share of
the arbitration costs, fees, expenses, and of the arbitrator’s fees, costs and
expenses” not to condition the requesting party’s right to demand arbitration. See
Amir v. Int’l Bank of Commerce, 419 S.W.3d 687, 693 (Tex. App.—Houston [1st
Dist.] 2013, no pet.). Similarly, as outlined above, the Texas Supreme Court found
no applicable conditional language in Solar Applications Engineering. See 327
S.W.3d at 109. The provision stated that Solar’s

       final Application for Payment shall be accompanied (except as
       previously delivered) by: (i) all documentation called for in the
       Contract Documents, including but not limited to the evidence of
       insurance, (ii) consent of the surety, if any, to final payment; and (iii)
       complete and legally effective releases or waivers (satisfactory to
       [TA]) of all Lien rights arising out of or Liens filed in connection with
       the Work.
Id. (alteration in original).

                                          12
      Here, the conditional language “prior to” is within not just the same
paragraph as the reference to exercising contractual remedies, but within the same
sentence.   Arbor’s notice of default to Weekley and Weekley’s fifteen-day
opportunity to cure must occur “prior to” Arbor invoking contractual remedies for
Weekley’s default. To conclude that the “prior to” phrase does not impose a
condition on Arbor’s right to invoke remedies, we must place a period after the
word “cured,” though the parties did not. In that regard, the provision is more like
“unless” conditional language. See Dallas Berkshire Partners, 2001 WL 200144,
at *5 (holding that the notice-of-default provision stating “Tenant shall not exercise
any such remedy unless” is a condition precedent to recovery for breach). Arbor
does not urge another construction, and we cannot craft this sentence in a way that
yields anything other than a condition precedent.

      The parties do not point us to any other provisions in the Agreement that aid
our construction.   However, we find some guidance on the parties’ intent in
Paragraphs 2 and 17. One of the remedies explicitly available to Arbor under
Paragraph 17 of the Agreement on occasion of Weekley’s failure to comply with
the agreement is to terminate the Agreement and retain the Earnest Money. Yet,
Paragraph 2 of the Agreement, entitled “Earnest Money” states that

      [t]he Title Company shall not release the Earnest Money unless and
      until Seller [Arbor] has provided to the Title Company an affidavit of
      Seller [Arbor] stating that: ‘Substantial Completion pursuant to the
      Agreement for Sale and Purchase of Lots dated (the Effective Date of
      his Agreement) has been met on or before the Scheduled Completion
      Date, a default has occurred by Purchaser under said Agreement,
      Seller has provided Purchaser with notice of the default as required in
      the Agreement, such default has not been cured within the cure period
      provided in said Agreement, and Seller is not in default under said
      Agreement and has not been in default under said Agreement during
      the period of Purchaser’s default.


                                         13
(emphasis added). This paragraph tends to confirm an agreement between the
parties that Arbor may not obtain one of the contracted remedies, the Earnest
Money, unless and until it swears that it has given Weekley notice and an
opportunity to cure.

      Paragraph 7, entitled “Substantial Completion,” gives some insight into the
parties’ intentions on another area of notice and cure.       It requires Arbor to
“promptly furnish written notice” of its belief that all Lots are substantially
completed. Weekley then has fifteen days to inspect the Lots and notify Arbor of
any item with which it disagrees. The paragraph then states the consequences of
Weekley’s failure to give such notice: “The failure of Purchaser to so notify Seller
within such fifteen (15) day period shall be deemed to be Purchaser’s agreement
that all conditions to Substantial Completion have been satisfied and that
Substantial Completion has occurred.”        And, Paragraph 7 concludes with the
following sentence: “Notwithstanding the foregoing, Purchaser shall have the right
to purchase any Lot prior to the Substantial Completion Date, but the same shall
not relieve Seller from its covenants and obligations to satisfy the aforementioned
requirements for such Lot or Lots in accordance with the terms of this Agreement.”

      In Paragraph 7, the parties have explicitly stated the effect of silence where
notice is required; that is, Weekley is deemed to be in agreement. And, through
Paragraph 7, which is in part a notice and cure provision, the parties have
expressed their intent that Arbor’s obligations under the Agreement are not
conditioned on Weekley purchasing a lot after Substantial Completion.          This
paragraph demonstrates how the parties drafted a paragraph to avoid a condition
precedent. See TransTexas Gas Corp. v. Forcenergy Onshore, Inc., No. 13-02-
387-CV, 2004 WL 1901717, at *8 (Tex. App.—Corpus Christi Aug. 26, 2004, pet.
denied) (mem. op.) (noting that the parties demonstrated in a separate provision of

                                        14
the contract that they knew how to draft a condition precedent if such is what they
intended). The absence of any such language in the paragraph at issue here tends
to confirm, by contrast, that (a) Arbor giving notice and an opportunity to cure is
not simply a choice but a requirement; and (b) Arbor’s rights under the Remedies
provision do not arise until Arbor gives notice and fifteen days to cure.

        In summary, the provision itself contains conditional language.       Other
paragraphs of the Agreement support the interpretation that the provision is a
condition precedent. The provision is not described as a covenant but begins with
the introductory words “covenant and agree.” To construe the provision as either a
covenant or an ambiguous provision in an effort to give meaning to this single
phrase out of context would ignore the remaining language and eviscerate the only
reasonable meaning of the paragraph. Having examined the contract as a whole,
we conclude that we are “compelled to [construe the provision as a condition
precedent] by language that may be construed in no other way.” Chambers v. Hunt
Petroleum Corp., 320 S.W.3d 578, 584 (Tex. App.—Tyler 2010, no pet.) (citing
Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987)); see also Cajun
Constructors, Inc., 380 S.W.3d at 826. We therefore conclude, as a matter of law,
that the notice provision is a condition precedent to Arbor’s right to remedy for
Weekley’s default. The trial court did not err in submitting Question No. 1 to the
jury.

        2.    Arbor failed to obtain a jury finding on its excuse defense.

        Arbor argues that even if the notice provision is a condition precedent, the
jury’s answer to Question No. 1 will not support a Weekley take-nothing
judgment. Arbor acknowledges that “due to a defective condition of the jury
question asking whether Arbor Windsor was excused from sending notice of
breach, the jury did not expressly say it did not have to do so.” Arbor nonetheless

                                         15
argues that once the jury answered “no” to Question No. 4, the jury impliedly
determined that Arbor was excused from providing notice, and the jury’s answer to
Question No. 1 became immaterial.

      A jury question is immaterial when its answer cannot alter the effect of the
verdict. Nat’l City Bank of Ind. v. Ortiz, 401 S.W.3d 867, 883 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied). Arbor reasons that the jury’s answer to
Question No. 1 cannot alter the effect of the verdict in this case because the jury
found that “Arbor Windsor complied with the Agreement.” The jury did not,
however, find that Arbor complied with the Agreement. The jury found that Arbor
did not fail to comply with the Agreement. In Texas law, this is a distinction with
a difference.

      A negative answer to a jury question on “failed to comply with a contract” is
not a positive finding that such party “complied with a contract.” See Grenwelge
v. Shamrock Reconstructors, Inc., 705 S.W.2d 693, 694 (Tex. 1986) (holding that a
jury’s failure to find breach of contract meant the plaintiffs failed to carry their
burden of proof, not that the defendant substantially performed the contract); see
also Cullins v. Foster, 171 S.W.3d 521, 536–37 (Tex. App.—Houston [14th Dist.]
2005, no pet.) (holding that “[i]f the jury makes a negative finding in answer to a
question, it means the party with the burden of proof has failed to carry its
burden”). Here, Question No. 4 placed the burden on Weekley to establish that
Arbor failed to comply with the Agreement. Thus, the jury’s negative answer
means no more than Weekley failed to meet its burden to show that Arbor failed to
comply with the contract. It is no finding that Arbor actually complied with the
contract.

      Moreover, as Arbor itself points out, the jury may have concluded in
Question No. 4 that Arbor did not fail to comply with the contract for a number of

                                        16
reasons based upon the instructions given. Within Question No. 4, the jury was
instructed that Arbor is excused “from complying if the failure, if any, was (1) not
material, or (2) not waived, or (3) if Weekley Homes anticipatorily repudiated the
agreement or (4) if Weekley Homes is estopped from complaining of Arbor
Windsor Court’s failure to comply with the agreement.” Thus, the jury may have
simply concluded that Weekley did not bring a preponderance of evidence either
(1) that Arbor failed to comply with the Agreement or (2) that Arbor’s failure to
comply with the condition precedent was not excused. 9 Even if we were to ignore
the fact that neither the question nor the instructions make reference to notice or
conditions precedent, we may not, in an effort to interpret the jury’s verdict, guess
about how the jury reached its answer. Thus, Arbor did not obtain an implicit
finding from the jury on its excuse affirmative defense to the notice condition
precedent.

       Instead, our analysis falls within Texas Rule of Civil Procedure 279 10 and
the Texas Supreme Court decision DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex.
2008). In DiGiuseppe, the parties submitted their breach of contract claims on
broad-form questions. Id. at 592. DiGiuseppe failed to obtain a “ready, willing,
and able to perform” fact finding to support his request for specific performance.
Id. The evidence concerning whether DiGiuseppe was ready, willing, and able to
perform was conflicting. Id. at 595. The Texas Supreme Court determined that the

       9
         Question No. 4 appears to improperly shift the burden to Weekley to establish that
Arbor was not excused from compliance with the contract. Neither party complains here of the
burden on the instruction. However, it is further support for our conclusion that the answer to
Question No. 4 does not implicitly mean that Arbor met its burden to establish that it was
excused from performing the condition precedent.
       10
          Rule 279 provides that “[u]pon appeal all independent grounds of recovery or of
defense not conclusively established under the evidence and no element of which is submitted or
requested are waived.” Tex. R. Civ. P. 279.


                                              17
argues that once the jury answered “no” to Question No. 4, the jury impliedly
determined that Arbor was excused from providing notice, and the jury’s answer to
Question No. 1 became immaterial.

      A jury question is immaterial when its answer cannot alter the effect of the
verdict. Nat’l City Bank of Ind. v. Ortiz, 401 S.W.3d 867, 883 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied). Arbor reasons that the jury’s answer to
Question No. 1 cannot alter the effect of the verdict in this case because the jury
found that “Arbor Windsor complied with the Agreement.” The jury did not,
however, find that Arbor complied with the Agreement. The jury found that Arbor
did not fail to comply with the Agreement. In Texas law, this is a distinction with
a difference.

      A negative answer to a jury question on “failed to comply with a contract” is
not a positive finding that such party “complied with a contract.” See Grenwelge
v. Shamrock Reconstructors, Inc., 705 S.W.2d 693, 694 (Tex. 1986) (holding that a
jury’s failure to find breach of contract meant the plaintiffs failed to carry their
burden of proof, not that the defendant substantially performed the contract); see
also Cullins v. Foster, 171 S.W.3d 521, 536–37 (Tex. App.—Houston [14th Dist.]
2005, no pet.) (holding that “[i]f the jury makes a negative finding in answer to a
question, it means the party with the burden of proof has failed to carry its
burden”). Here, Question No. 4 placed the burden on Weekley to establish that
Arbor failed to comply with the Agreement. Thus, the jury’s negative answer
means no more than Weekley failed to meet its burden to show that Arbor failed to
comply with the contract. It is no finding that Arbor actually complied with the
contract.

      Moreover, as Arbor itself points out, the jury may have concluded in
Question No. 4 that Arbor did not fail to comply with the contract for a number of

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                                III. CONCLUSION

      Because we conclude that the fifteen-day notice provision is a condition
precedent, and we further conclude that the jury’s answer to Question No. 4 does
not render the jury’s answer to Question No. 1 immaterial, the trial court did not
err in the implicit conclusion that Arbor failed to perform an unexcused condition
precedent. We, therefore, hold that the trial court properly rendered a take-nothing
judgment for Weekley on its affirmative defense, and we affirm the judgment. As
such, we do not address Weekley’s alternate bases for affirming the judgment.



                                      /s/    Sharon McCally
                                             Justice

Panel consists of Justices McCally, Busby, and Donovan.              (Donovan, J.,
dissenting).




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