Concurring opinion issued October 27, 2015




                                     In The

                              Court of Appeals
                                     For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00301-CV
                           ———————————
                  DEANA A. POLLARD SACKS, Appellant
                                        V.
 THOMAS F. HALL AND THOMAS F. HALL, D.D.S., M.S. P.A., Appellees



            On Appeal from the County Civil Court at Law No. 3
                          Harris County, Texas
                       Trial Court Case No. 919405



                          CONCURRING OPINION

     I agree with the court’s resolution of the attorney’s fee issue, and I concur in

the result. Because Sacks did not preserve an objection to the formulation of
damages charged to the jury, I would take a different approach to evaluating the

sufficiency of the evidence of the actual damages awarded to Dr. Hall.

      The actual damages award was predicated upon the jury’s answer to the

following question, with an unorthodox definition of the “benefit of the bargain”

lost by Dr. Hall as a result of Sacks’s breach of their contract:

      QUESTION NO. 10:

             What sum of money if paid now in cash will fairly reasonably
      compensate Hall for the damages, if any, that resulted from Sacks’
      failure to comply with the Financial Contract?

             Loss of the benefit of the bargain: The difference, if any,
      between the value of the agreement between the value of orthodontic
      care agreed to by the parties and the value of the orthodontic care
      performed by Dr. Thomas Hall, D.D.S. The difference in value, if any,
      shall be determined at the time and place the orthodontic care was
      performed.

             Do not add any amount for interest on damages, if any.

             Answer separately in dollars and cents for damages if any.

             (a)    Loss of benefit of the bargain sustained in the past.

             ANSWER: $________________

During the charge conference, Sacks objected that the evidence did not support the

submission of this question, but she did not object to the phrasing of the question

or suggest any other legally correct formulation of the damages question. On

appeal, Sacks contends that there was no evidence to support the $1,220 in

damages awarded in response to this question.

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      The court addresses a different question. Instead of evaluating the evidence

against Question No. 10, the court observes that Sacks objected to the submission

of Question No. 10, and it uses that circumstance to justify evaluating the

sufficiency of the evidence “under a proper definition of ‘loss of the benefit of the

bargain.’” Measured against a different standard—“the difference between the

value as represented and the value as received by the non-breaching party”—the

court finds the evidence to be sufficient and the charge error to be harmless.

      The authorities noted by the court do not compel this analytical approach. In

St. Joseph Hospital v. Wolff, 94 S.W.3d 513 (Tex. 2002), the appellant properly

and correctly objected to a jury charge due to its incorrect definition of joint

enterprise. 94 S.W.3d at 525, 530. Accordingly, the charge objection was sustained

on appeal and the sufficiency of the evidence was measured against the correct

standard, the one advocated by the appellant in the trial court. Id. at 529–30. The

other cases noted by the court correctly restated this rule without actually applying

it as part of an evaluation of the sufficiency of evidence to support a verdict. See

Latham v. Burgher, 320 S.W.3d 602, 606 n.1 (Tex. App.—Dallas 2010, no pet.)

(noting the St. Joseph rule to explain why the jury charge issue was addressed

before sufficiency of the evidence); W.L. Lindemann Operating Co., Inc. v.

Strange, 256 S.W.3d 766, 775 (Tex. App.—Fort Worth 2008, pet. denied) (noting,

but not applying, the St. Joseph rule).



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      The appeal before us did not involve a proper objection to a proposed legal

standard which was incorrectly overruled by the trial court. In such a scenario, it

makes sense to apply the correct legal standard if requested on appeal by the party

that properly requested it in the trial court. But in the absence of those

circumstances, the ordinary rule should apply: there was no objection to the form

of the jury question, and therefore the sufficiency of the evidence should be

measured against that jury question. See, e.g., Wal-Mart Stores, Inc. v. Sturges, 52

S.W.3d 711, 715, 715 n.4 (Tex. 2001); City of Fort Worth v. Zimlich, 29 S.W.3d

62, 71 (Tex. 2000); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Larson v.

Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985).

      Measuring the evidence against Question No. 10, the award of $1,220 in

actual damages should be affirmed. The jury received evidence about the contract

between the parties, as well as evidence that Sacks had received substantially all of

the agreed orthodontic care from Dr. Hall because “the majority of the work is

done upfront,” including the fittings and the braces installation. The remaining

services consisted of “short adjustment appointments” which Sacks failed to




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utilize. This was sufficient evidence from which the jury could have determined

the loss of the benefit of the bargain sustained by Dr. Hall, as defined by Question

No. 10.



                                             Michael Massengale
                                             Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Justice Massengale, concurring.




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