      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00483-CV



                                Trinity Materials, Inc., Appellant

                                                  v.

                 Carroll Sansom, James Sansom, and Robert Coe, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
     NO. D-1-GN-09-004105, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Trinity Materials, Inc. appeals the district court’s judgment on a jury verdict in favor

of appellees Carroll Sansom, James Sansom, and Robert Coe (Landowners) in a breach of contract

suit. We will affirm the district court’s judgment.


                                            Background

               Trinity and the Landowners entered into a sand and gravel mining lease (Lease) in

1999. The land covered by the Lease consists of three properties owned by the Landowners—a 104-

acre tract, a 139-acre tract, and a 176-acre tract. Trinity did not begin mining on the Lease property

immediately and instead paid advance royalties to the Landowners each year as allowed under

the Lease. In 2003, citizens living in the area near the Landowner’s property incorporated the

Village of Webberville. The Village Council enacted several ordinances that required mining

permits and created zoning regulations that were applicable to the type of mining covered in the

Lease.
               These ordinances impeded Trinity’s ability to mine on the Lease property and,

in response, Trinity proposed several solutions to the Landowners, including challenging the

constitutionality of the ordinances, tolling the Lease until the impediments could be resolved, and

attempting to meet the ordinance requirements by re-zoning the Lease properties from agricultural

to sand-and-gravel classification and obtaining the requisite permits. The re-zoning solution was

proposed after Trinity had convinced the Village to add a less restrictive sand-and-gravel zoning

classification to the ordinances, but when Trinity asked the Landowners to sign the re-zoning forms,

the Landowners resisted. In response, Trinity filed suit against the Landowners, claiming that the

Landowners were contractually obligated under the Lease to assist in Trinity’s re-zoning efforts by

agreeing to re-zone the three Lease properties.

               Despite its pending suit, Trinity decided to move forward with mining the

portions of the Lease property located in the Village’s extra-territorial jurisdiction (ETJ)—areas they

believed were outside the scope of the mining and zoning ordinances. In accordance with Lease

requirements, Trinity submitted a mining plan to the Landowners for their approval on June 22,

2010. The Landowners rejected the plan on July 22, 2010, claiming that the details in the plan were

insufficient.1 Despite this rejection, Trinity began moving mining equipment onto the property,

prompting the Landowners to obtain a temporary restraining order to stop the activity. Trinity


       1
           The mining plan submitted by Trinity was approximately half a page in length. The plan
briefly described the area to be mined, listed the order and portions of the tracts to be mined,
identified one tract that was not to be mined due to insufficient deposits, affirmed that all work
would be done according to industry standards, and described how the materials would be removed
from the property and how the land would be reclaimed. Both parties presented expert witness
testimony during the trial related to the sufficiency of the plan. Trinity’s witness, Jerry McCalip
testified that the plan was sufficient according to industry standards. The Landowner’s witness,
Ricky Wayne Thomas, claimed that the plan was deficient and should have included many more
details.

                                                  2
submitted a second mining plan to the Landowners on August 27, 2010, that was nearly identical to

the first plan, but included specifications for a road for ingress and egress. The Landowners did not

respond to the second plan in writing, but expressed their rejection of it at a hearing related to the

TRO on September 8, 2010. On October 13, 2010, the Landowners obtained a temporary injunction

against Trinity’s mining operations, but it was contingent upon a $150,000 bond that the Landowners

never filed.

               Meanwhile, Trinity sent a request to the Village for all applicable zoning and

mining ordinances, but the City’s response did not include any that applied to the ETJ. So, despite

not having an approved mining plan from the Landowners, but believing their actions to be in

accordance with the Village’s ordinances, Trinity decided to mine in the ETJ.2 On November 12,

2010, Trinity began mining on the Lease’s 104-acre tract. The Village obtained and delivered to

Trinity at the mining site a stop-work order and TRO. Trinity’s employees, believing the orders to

be erroneously issued, continued working for several more hours until a piece of equipment broke

down and forced them to stop. Trinity did not resume mining operations at the site. Soon thereafter,

the Village sued both Trinity and the Landowners for failure to comply with newly enacted Site

Development Ordinances only then brought to Trinity’s attention.

               On December 17, 2010, Trinity submitted a third mining and construction plan, which

included a few additional details, including a timeline for completion and a map of the road to be

used for ingress and egress. The Landowners rejected this plan on January 7, 2011, explaining that

it “suffers from the same shortcomings” as the prior plans. A short time later, the Landowners


       2
        Two days before Trinity began mining, the Village’s attorney sent an email to Trinity and
the Landowners, referencing ordinances that applied to property located in the ETJ. This email,
however, did not contain copies of the actual ordinances to which it referred.

                                                  3
sought indemnity from Trinity in connection with the Landowners being included in the Village’s

suit, specifically seeking $36,338 for their legal fees incurred between November 3 through 30, 2010

under the Lease’s indemnity clause.3 Trinity declined.

                Trinity’s suit against the Landowners finally went to trial in February 2011. At

trial, Trinity sought recovery of its advance royalty payments on two breach theories: (1) the

Landowners breached the Lease when they failed to cooperate with the re-zoning efforts; and (2) the

Landowners breached the Lease by unreasonably withholding their approval of Trinity’s mining and

construction plans.    Following the presentation of evidence and arguments of counsel, the

Landowners moved for a directed verdict on the first of Trinity’s breach theories. The trial court

granted the Landowners’ motion, finding that the Lease created no duty for the Landowners to agree

to re-zone their properties and that the Landowners had not breached an implied covenant when they

refused to do so. During the charge conference, Trinity sought, but was denied, a question and

related instruction on the re-zoning issue,4 and the trial court advised the jury in the charge that the

Landowners had made no express or implied promise to apply for re-zoning in the Lease.

Accordingly, as to Trinity’s claims, the jury was asked only whether the Landowners had failed to

comply with the Lease by “unreasonably withholding consent to a mining plan and/or construction

plan,” to which they ultimately responded, “Yes.”




       3
           The indemnity clause included in the Lease requires Trinity to indemnify the Landowners
for their attorneys’ fees in defending against any claims arising from any penalty, damage, or charge
imposed for the violation of any law or breach of the Lease by Trinity in the event the Landowners
are made parties to a lawsuit against Trinity.
       4
          Trinity made no other objections to the jury charge and, in fact, affirmatively stated that
it had no objections to the charge.

                                                   4
                As to the Landowners, who had counterclaimed seeking declaratory relief and

damages on four breach theories, the jury was simply asked whether Trinity had failed to

comply with the Lease, to which the jury answered, “Yes.” The jury was then asked, based on its

findings that both Trinity and the Landowners had failed to comply with the Lease, who had failed

to comply with the Lease first, to which it responsed, “Trinity.” Next, having been given instructions

directing it to answer only certain questions depending on its answers to the first three questions, the

jury determined the Landowners’ damages. Specifically, the jury found that Trinity should pay

$25,000 to compensate the Landowners for their damages and $532,023.28 to compensate the

Landowners for attorney’s fees incurred in the present suit. After denying both parties’ motions to

disregard the jury’s findings and Trinity’s motion for judgment notwithstanding the verdict, the

district court entered judgment awarding the Landowners $25,000 in compensatory damages and

$497,023.28 in attorney’s fees.5 It is from this judgment that Trinity now appeals.


                                               Analysis

                Trinity raises six issues on appeal, asking this Court to determine (1) whether there

is legally and factually sufficient evidence to support the jury’s findings that Trinity failed to comply

with the Lease and that it failed to do so first; (2) whether the affirmative defense of prior material

breach can be predicated on breach of an indemnification clause; (3) whether the Landowners

decision to treat the Lease as continuing after Trinity’s alleged breach precluded the Landowners

from relying on the excuse of prior material breach; (4) whether the trial court committed charge

error by refusing to include Trinity’s requested jury questions and instruction; (5) whether legally


        5
        The district court also awarded the Landowners appellate fees of $25,000 and $10,000 for
unsuccessful appeals by Trinity to the Court of Appeals and Texas Supreme Court, respectively.

                                                   5
and factually sufficient evidence supports the jury’s $25,000 damage award; and (6) whether Trinity

is entitled to damages and attorney’s fees as a matter of law because the jury found that the

Landowners failed to comply with the Lease.


Trinity’s breach

                The starting point for our analysis of Trinity’s evidentiary-sufficiency challenges to

the jury’s findings regarding Trinity’s failure to comply with the Lease is the jury charge.6 See

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (legal sufficiency); Golden Eagle Archery, Inc.

v. Jackson, 116 S.W.3d 757, 762 (Tex. 2003) (“Before a court can properly conduct a factual

sufficiency review, it must first have a clear understanding of the evidence that is pertinent to its

inquiry. The starting point generally is the charge and instructions to the jury.”); Ancira Enters., Inc.

v. Fischer, 178 S.W.3d 82, 93 (Tex. App.—Austin 2005, no pet.). Here, questions 1 through 3

presented the jury with the questions regarding the parties’ compliance with the terms of the Lease.



        6
           The standard of review for evidentiary sufficiency is well known. We may sustain a legal
sufficiency challenge only if the record discloses one of the following situations: (a) a complete
absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact
is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the
vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (quoting Robert W. Calvert,
“No Evidence” & “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960)).
In determining whether a finding is supported by legally sufficient evidence, we view the evidence
in the light most favorable to the finding, “crediting favorable evidence if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.” Id. at 807. We
indulge every reasonable inference that would support the finding. Id. at 822.

         In reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence
presented at trial, including any evidence contrary to the judgment. Plas-Tex, Inc. v. U.S. Steel
Corp., 772 S.W.2d 442, 445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We set
aside a finding for factual insufficiency if it is “so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust.” Cain, 709 S.W.2d at 176.

                                                   6
Question 1, not challenged on appeal, asked the jury, “Did the Landowners fail to comply with the

Sand and Gravel Lease by unreasonably withholding consent to a mining plan and/or a construction

plan?”7 Question 2 asked the Jury, “Did Trinity fail to comply with the Sand and Gravel Lease?”8

Having answered “yes” to both questions 1 and 2, the jury was then instructed to answer Question

3: “Which of those named below failed to comply with the Sand and Gravel Lease first?” The jury

responded, “Trinity.”

                   Stated generally, Trinity’s argument at trial was that it had fulfilled its obligation

under the Lease by paying the Landowners $705,000 in advance royalties since 1999 and, in turn,

that it had the right under the Lease to mine the property for sand and gravel. But when it was ready

to exercise those mining rights, Trinity argued, and submitted three separate mining plans to the

Landowners for their approval as required by the Lease, the Landowners unreasonably withheld

their approval of those plans, thereby thwarting Trinity’s ability to mine and, as a result, breaching

the Lease. The Landowners countered at trial that their refusals of Trinity’s mining plans were

reasonable and, moreover, that Trinity had breached the Lease by commencing mining operations

without first getting the required approval from the Landowners, disregarding a Village ordinance

and stop-work order, failing to perform mining operations in a “prudent and workmanlike manner,”




          7
           The jury was also instructed in connection with Question 1 that (1) “‘unreasonably
withholding consent’ should be determined by reference to the terms and conditions of the Sand and
Gravel Lease”; (2) “in addition to express promises, every contract contains an implied promise that
a party will not do anything to delay or prevent the other party from performing his part of the
contract”; and (3) “the Landowners made no express promise to apply for rezoning of their property
and there is no implied promise to apply for rezoning.”
          8
              The jury was instructed in connection with this question that “a city ordinance is presumed
valid.”

                                                      7
and failing to indemnify the Landowners when they were included in the Village’s lawsuit against

Trinity.


        Basis for jury’s finding that Trinity failed to comply with the Lease

               As an initial point, Trinity argues that the only possible basis for the jury’s finding

that Trinity failed to comply with the Lease is the Landowners’ argument that Trinity failed to

indemnify the Landowners for their inclusion in the Village lawsuit. Stated in the converse and

in Trinity’s words, Trinity maintains that “the jury’s breach finding cannot be based on the

Landowners’ allegations that Trinity mined without prior approval, deliberately and knowingly

disregarded the Site Development Ordinance, or failed to act in a ‘reasonable prudent and

workmanlike manner.’” Trinity bases this position on Question 6 of the jury charge:


        What sum of money, if any, if paid now in cash, would fairly and reasonably
        compensate the Landowners for their damages, if any, that resulted from Trinity’s
        failure to comply?

        Consider only the reasonable fee, if any, for the necessary services of the
        Landowner’s attorneys in the suit by the Village of Webberville and all costs and
        expenses, if any, incurred by the Landowners in connection with that litigation.


Trinity contends that the above-listed instruction to Question 6 limited the jury to awarding

the Landowners only those damages incurred as a result of Trinity breaching the Lease’s

indemnity clause. By extension, Trinity continues, the Jury’s “yes” answer to Question 2 must

also be predicated on a finding that Trinity breached the Lease’s indemnity clause. Thus, Trinity

concludes, our evidentiary-sufficiency review is limited to determining whether there is legally and

factually sufficient evidence to support a finding that Trinity failed to comply with the Lease’s

indemnity provision. We disagree. Question 2 was submitted in broad form, without objection, as

                                                 8
follows: “Did Trinity fail to comply with the Sand and Gravel Lease?” As written, the jury could

have found a failure to comply with the Lease based on any contractual obligation under the Lease,

including, but not limited to, any of the breach theories offered by the Landowners: failing to

indemnify the Landowners, ignoring the ordinance and stop work order, or failing to operate in a

reasonably prudent manner. See Eco Built, Inc. v. Lufts, No. 03-08-00427-CV, 2010 WL 3629821,

at *9 (Tex. App.—Austin Sept. 17, 2010, no pet.) (mem. op.) (holding that broad-form submission

of breach question allowed jury to find breach based on any contractual obligation). Nor is it

necessary to know the basis. Because it was not objected to, we may uphold the jury’s finding in

Question 2 as long as legally and factually sufficient evidence supports the jury’s finding on a theory

contemplated under the jury charge. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 & n.1

(Tex. 2000) (upholding jury’s discrimination finding because one of three theories presented to jury

charge was supported by legally sufficient evidence, although reducing damages award for theories

not supported by legally sufficient evidence); see also Tex. R. Civ. P. 274 (“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.”).


        Evidentiary sufficiency of jury’s finding that Trinity failed to comply

                Having determined that we must uphold the jury’s finding in Question 2 if legally and

factually sufficient evidence supports that finding on a theory contemplated by the charge, we now

address Trinity’s evidentiary sufficiency challenge to the jury’s finding that Trinity failed to comply

with the Lease. Because it is undisputedly an obligation under the Lease, was a theory offered by

the Landowners at trial, and is dispositive of this and other issues on appeal, we will focus on

the evidence, largely undisputed, relating to the Landowner’s allegation that Trinity began mining

                                                     9
operations without first obtaining written approval of a mining plan from the Landowners as required

by the Lease.

                Under the terms of the Lease, Trinity must submit a mining or construction plan to

the Landowners and get their written approval before beginning any construction or mining

activities on the Lease property. Although the Lease does not specify the contents of the plan, any

such approval from the Landowners may “not be unreasonably withheld.”9 As discussed, Trinity

submitted three separate mining plans to the Landowners for their approval in hopes of starting some

sort of mining operations to recoup the $705,000 in advance royalty payments before the Lease term

ended. The Landowners rejected all three of Trinity’s mine plans. The following are the undisputed

dates of submission and rejection of those plans:




                             First Plan             Second Plan                   Third Plan
 Submitted              June 22, 2010         August 23, 2010             December 17, 2010
 Rejected               July 22, 2010         September 8, 201010         January 7, 201111




       9
           Specifically under the Lease, Trinity agrees that (g) “prior to construction of any plants,
roads, or other improvements to submit a construction plan to [Landowners] for [Landowner’s] prior
written approval, such approval not to be unreasonably withheld”; (h) prior to commencement of
mining, to submit a mining plan to [Landowner] for [Landowner’s] prior written approval, such
approval not to be unreasonably withheld.”
       10
           There was no written rejection to the second plan, but the Landowners expressed their
rejection at a temporary injunction hearing.
       11
            The letter is misdated as January 7, 2010, but refers to events in 2011.

                                                  10
               The evidence is also undisputed that on November 12, 2010, between its submission

of the second and third plans and also between the Landowners’ respective rejections of those plans,

Trinity began mining operations on the 104-acre tract of the Lease property. Although the mining

only lasted for five hours and Trinity was not able to garner any marketable material, the Village

obtained a restraining order against Trinity and later filed suit against both Trinity and the

Landowners as a result of the November 12 mining operations. Trinity’s witness Matthew

Hallmark acknowledged that Trinity began mining operations on November 12, 2010, and that it had

done so without obtaining the Landowners’ approval of a mine plan. He also testified that Trinity

would not have stopped mining that day but for the fact that a piece of equipment had failed.

Trinity’s president, Carl Campbell, admitted that Trinity began mining on the Lease property in

November 2010, but that they had not done any additional mining since that time. Finally, a lawyer

for the Village, Monte Swearengen, testified that Trinity began mining operations on the 104-acre

tract on November 12, 2010, and that those operations led to a temporary injunction hearing and,

ultimately, to the Village’s suit against Trinity and the Landowners. We hold that, under the

applicable standard of review, this evidence is legally and factually sufficient to support the jury’s

finding that Trinity failed to comply with the Lease. See City of Keller v. Wilson, 168 S.W.3d 802,

810 (Tex. 2005); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

               Trinity argues that even if it breached the lease by mining without approval on

November 12, 2010, that breach was excused by the Landowners’ unreasonable withholding of

consent to its mine plan. As stated by Trinity:


       Given the jury’s answer to Question 1 (that the Landowners breached by
       unreasonably withholding consent to the mine plan), the jury’s finding that Trinity


                                                  11
       breached the Lease cannot be based on the Landowners’ allegation that Trinity
       commenced mining without obtaining written approval.


But Trinity’s argument here incorrectly states the jury’s finding regarding the Landowners’ actions

and, further, its argument assumes that the jury found that the Landowners failed to comply with the

Lease by rejecting the second plan—i.e., on August 23, 2010. In other words, Trinity’s argument

here is that, if it breached by mining without approval on November 12, 2010, that breach must have

occurred after the Landowners breached because the jury found in Question 1 that the Landowners

failed to comply with the Lease on August 23 when they rejected Trinity’s second plan. That

assumption, and thus the basis for Trinity’s argument here, is faulty. The question submitted to the

jury was whether the Landowners failed to comply with the Lease by “unreasonably withholding

consent to a mining plan,” not to one of the three specific mining plans. (Emphasis added.) As such,

the jury’s answer to Question 1 indicates only that it found that the Landowners had unreasonably

rejected at least one of the three mining plans. Given, as shown in the chart above, that three plans

were submitted and that the last possible rejection by the Landowners occurred in January 2011, and

given the form of the question, the jury could have found a failure to comply with the Lease based

on the Landowners’ rejection of any one of the three plans, including the last, meaning that Trinity

would have breached first. See Eco Built, 2010 WL 3629821, at *9.


       Evidentiary sufficiency of jury’s finding that Trinity failed to comply first

               This incorrect assumption regarding the basis of the jury’s finding in Question 1 is

presumably at least one source of Trinity’s second evidentiary-sufficiency challenge, this one to the

evidence supporting the jury’s finding that Trinity failed to comply with the Lease first. Again, the

finding Trinity challenges here—i.e., that Trinity failed to comply first—was reached by the jury in

                                                 12
answering a question that simply asked whether Trinity or the Landowners “failed to comply with

the Sand and Gravel Lease first?” We may uphold the jury’s answer to that question if legally and

factually sufficient evidence supports any theory contemplated under the jury charge. See Zimlich,

29 S.W.3d at 69 & n.1; Eco Built, 2010 WL 3629821, at *9.

                First, as discussed previously in connection with Trinity’s challenge to the Jury’s

answer to Question 2, the evidence in the record conclusively established that Trinity mined on Lease

property without approval on November 12, 2010. Thus, there is legally and factually sufficient

evidence to support a finding that Trinity failed to comply with the Lease on November 12, 2010.

Next, although the jury’s finding to Question 1 (that the Landowners failed to comply) is not

challenged on appeal,12 we consider the evidence of the Landowners’ breach as it relates to the jury’s

answer to Question 3—specifically evidence supporting a finding that the Landowners failed to

comply with the Lease by unreasonably rejecting the third plan in January 2011—because that

occurred after the November 12, 2010 breach by Trinity. Although Trinity is correct that the

Landowners rejected the third plan because it “suffered from the same shortcomings as the prior

mine plans,” the jury could still find that the Landowners reasonably rejected the prior plans, but

unreasonably rejected the third plan given the evidence. Trinity’s president, Campbell, testified that

the third plan was an effort to recoup its losses. Trinity’s general operations manager, Hallmark,



        12
           Trinity, arguing in its reply brief that “the jury could not have found that the first and only
breach occurred on January 7 when the Landowners rejected the Third Mine Plan,” purports to
raise an evidentiary-sufficiency challenge to Question 1: “The letter [rejecting the third plan] and
expert testimony [stating that the third plan suffers from the same shortcomings as the prior plans]
prove the opposite of a vital fact, making reversal on legal sufficiency grounds appropriate.” We
disagree about the evidence in the record, which we discuss above, but regardless, Trinity did not
object to the form of Question 1 at trial and, more importantly, could not do so on appeal and hope
to prevail on appeal.

                                                   13
testified that the third plan represented Trinity’s efforts to make a plan that would satisfy, or be the

least objectionable to, the Village and its residents and that would allow it to mine and get its

royalties with the least amount of conflict. To that end, based on discussions with Village principals,

the third plan proposed mining in an area of the Lease property that was farthest away from

the Village’s populated areas and would not add traffic to Village roads. Hallmark also testified that

the third plan alleviated the Landowners’ concerns about leaving a channel across their properties.

Finally, Hallmark testified that the third plan represented Trinity’s best ideas for resolving all the

various concerns. The Village’s attorney, Monte Swearengen, acknowledged that the Village, or

at least people involved with its management, were interested in resolving the issues and had

discussed Trinity’s suggestion of mining the parcel of land contemplated in the third plan. Viewing

the evidence in the light most favorable to the jury’s verdict and indulging every reasonable inference

that would support the finding, the jury could have reasonably found that the Landowners reasonably

rejected the first and second plans but unreasonably rejected the third plan. Likewise, viewing all

the evidence, those same findings are not “so contrary to the overwhelming weight of the evidence

so as to be clearly wrong and unjust.” See Cain, 709 S.W.2d at 176. Accordingly, a jury finding

that the Landowners failed to comply with the Lease by rejecting the third plan in January 2011 is

supported by legally and factually sufficient evidence. That, combined with the conclusive evidence

that Trinity breached on November 12, 2010, likewise provides the requisite evidentiary support for

the jury’s finding that Trinity failed to comply with the Lease first.

                Finally, Trinity argues that even if it breached the Lease by mining without prior

approval from the Landowners, that breach cannot be considered material because Trinity only

mined for about five hours. Initially, we note that although the jury did not make a specific finding


                                                  14
on this element, it is deemed found under Texas Rule of Civil Procedure 279 if it was omitted

without request or objection and there is factually sufficient evidence to support the finding. See

Tex. R. Civ. P. 279. As such, we take Trinity’s argument here to be an evidentiary-sufficiency

challenge to the jury’s deemed materiality finding.

                “In determining the materiality of a breach, the [fact finder] will consider, among

other things, the extent to which the non-breaching party will be deprived of the benefit that it could

have reasonably anticipated from full performance.” Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d

691, 693 (Tex. 1994) (citing Restatement (Second) of Contracts § 241(a) (1981)). The fact finder

may also consider “(i) the extent to which the injured party can be adequately compensated for the

part of that benefit of which he will be deprived; (ii) the extent to which the party failing to perform

or to offer to perform will suffer forfeiture; (iii) the likelihood that the party failing to perform or

to offer to perform will cure his failure, taking account of all the circumstances including any

reasonable assurances; (iv) the extent to which the behavior of the party failing to perform or to offer

to perform comports with standards of good faith and fair dealing.” Id. The evidence shows that

Trinity’s breach involved the Landowners’ property rights, damage or change to real property, and

implicated a specific term of the Lease. That term, as set forth above, required Trinity to provide

the Landowners with a mining plan and obtain their written approval “prior to commencement of

mining.” That appears to be the only provision in the Lease that gives the Landowners any active

oversight or insight into the mining process. The evidence also shows that Trinity’s actions in

breaching this particular provision of the Lease were admittedly deliberate and possibly in bad

faith—Trinity witnesses testified that Trinity decided that the Landowners were being unreasonable

in rejecting its plans and that it would begin mining despite the lack of approval. A November 11,


                                                  15
2010, letter from the Landowners’ attorney notified Trinity that the Landowners are aware

that Trinity has moved mining equipment onto the Lease property and warns it not to begin

mining without approval. Trinity witnesses testified that Trinity would not have stopped mining on

November 12, 2010, but for the fact that its machinery broke down. All this was done while

Trinity’s suit against the Landowners was pending. Considering the relevant evidentiary standards,

we conclude that the jury’s implied finding of materiality is supported by legally and factually

sufficient evidence. See Tex. R. Civ. P. 279; See City of Keller v. Wilson, 168 S.W.3d 802, 810

(Tex. 2005); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

               We overrule Trinity’s first issue.


Breach of the indemnification clause

               In its second issue on appeal, Trinity asks whether the Landowners’ affirmative

defense of prior material breach can be predicated on a breach of an independent indemnification

clause in the Lease. Stated another way, Trinity argues that because the jury found that Trinity

failed to comply with the Lease’s independent indemnity clause, Trinity should be allowed to recover

its damages because the affirmative defense of prior material breach only excuses breaches

of mutually dependent contract obligations. But Trinity’s argument here relies, and falls, on the

incorrect assumption that the jury found that Trinity had failed to comply with the Lease by

refusing to indemnify the Landowners. As discussed above, however, the broad-form submission

of Question 2, which simply asked the jury whether Trinity failed to comply with the Lease, means

that the jury could have relied on any breach theory. See Eco Built, 2010 WL 3629821, at *9.

Accordingly, we overrule Trinity’s second issue. See Tex. R. App. P. 47.1.



                                                16
Excuse

               In its third issue, Trinity argues that it is entitled to its damages caused by the

Landowners’ breach even if it breached the Lease first because the Landowners treated the

contract as continuing after Trinity’s breach. In support of this argument, Trinity relies on the rule

in contract law that “[w]hen a contracting party commits a material breach, the non-breaching

party must elect between two courses of action, either continuing performance under the

contract or ceasing performance and terminating the contract.” Eco Built, 2010 WL 3629821, at *6

(citing Gupta v. Eastern Idaho Tumor Inst., Inc., 140 S.W.3d 747, 756 (Tex. App.—Houston

[14th Dist.] 2004, pet. denied); World Access Telecomms. Grp., Inc. v. Statewide Calling,

Inc., No. 03-05-00173-CV, 2006 WL 2986227, at *7 (Tex. App.—Austin Oct. 17, 2006, no pet.)

(mem. op.)); see also Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 196

(Tex. 2004) (noting “fundamental principle of contract law” that “when one party commits a material

breach of that contract, the other party is discharged or excused from further performance”) citing

Hernandez, 875 S.W.2d at 692)). The rule is also related to waiver in that it, in essence, deems

treating a contract as continuing after a breach as a waiver of the excuse for non-performance. See

Eco Built, 2010 WL 3629821, at *6; Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877,

887–88 (Tex. App.—San Antonio 1996, writ denied) (describing rule as “waiver of excuse for non-

performance”).

               According to Trinity, the Landowners violated the continuing-performance rule by—


       •       sending a demand letter for $36,388.50 and requesting indemnification under
               the Lease on December 23, 2010;

       •       failing to terminate the Lease when Trinity had not done so ten days later;


                                                 17
        •       seeking its royalty payment in March 2011;

        •       notifying Trinity in January 2011 of Trinity’s alleged breach and “possible
                future action” under the Lease, but with no notification of termination of the
                Lease; and

        •       seeking declaratory judgment to enforce continuing obligations under the
                Lease and the right to pursue future termination of the Lease.


In sum, Trinity alleges that the Landowners “continued performance” under the Lease by asserting

their rights under the Lease and treating the Lease as if it were not terminated. But a careful reading

of Eco Built and the cases it cites as authority for this rule shows that more is required to constitute

continuing performance.

                In Eco Built, we held that the initial non-breaching party, Landmark, was not excused

from its payment obligations under the breached contract because it had treated the contract as

continuing and had continued to demand performance from Eco Built, the initial breaching party.

Specifically, after Eco Built had materially breached the contract, Landmark continued to treat the

contract as ongoing by writing payment checks to Eco Built and by demanding, and receiving,

performance from Eco Built. See Eco Built, 2010 WL 3629821, at *6. Similarly, in World Access,

we held that the initial non-breaching party was not excused from paying for services it had

previously received under the breached contract simply because the other party had breached

first, nor was it excused from paying for services it actually received even though the other party

was already in breach. See World Access, 2006 WL 2986227, at *8. Likewise, in Gupta, the

Houston Fourteenth Court of Appeals held that the initial non-breaching party, Gupta, was not

discharged or excused because post-breach he, for example, took over the billing obligations,

demanded and received payment for a physician’s salary, and continued to provide billing


                                                  18
information as required by the agreement. See Gupta, 140 S.W.3d at 757. In sum, in each of these

continuing-performance cases, the court required an affirmative contract-related act required under

the contract by the initial non-breaching party to preclude that party from using the defense of

prior material breach.

               The assertions Trinity makes regarding the Landowners’ actions, with one possible

exception, do not meet this standard. The actions Trinity describes are simply the Landowners’

expressions or assertions of their rights under the Lease. But the Landowners performed no acts

required by Lease, and Trinity did nothing in response to the requests. There is nothing in the record

that even comes close to the actions taken by the parties in the Eco Built, Gupta, and World Access

cases. And with regard to the possible exception mentioned, an alleged post-trial demand by the

Landowners in March 2011 for their royalty payment, that document is not part of the appellate

record and, as such, may not be considered on appeal. See Tex. R. App. P. 34.1; Save Our Springs

Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892 (Tex. App.—Austin 2010,

pet. denied) (“We are limited to the appellate record provided.”); Burke v. Insurance Auto Auctions

Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (documents that are cited in brief

and attached as appendices may not be considered by appellate courts if they are not formally

included in record on appeal).

               We overrule Trinity’s third issue.


Charge error

               In its fourth issue, Trinity challenges the district court’s refusal to submit the

following two additional jury questions and related instruction offered by Trinity:



                                                 19
                                  [Requested] QUESTION NO.1

               Did [the Landowners] fail to comply with the lease by not signing the Owner
       Certification forms for the Village of Webberville Zoning Change Request
       Application?

           [Requested] INSTRUCTION NO.2 TO [Requested] QUESTION NO.1

              You are instructed that [the Landowners] failed to comply with the Sand and
       Gravel Lease if it requires that they sign the Owner Certification forms for the
       Village of Webberville Zoning Change Request Application.

                                  [Requested] QUESTION NO.3

              Did [the Landowners] fail to comply with the lease by not granting Trinity
       peaceful possession of the premises for purposes of Trinity’s operations?


       Standard of review

               The province of a jury is to judge the credibility of witnesses and resolve factual

disputes, Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999), which it does by answering the

questions presented to it in the court’s charge. The trial court must submit to the jury the questions,

definitions, and instructions “raised by the written pleadings and the evidence.” Tex. R. Civ. P. 278;

Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). The rule imposes “a substantive,

nondiscretionary directive to trial courts [that requires] them to submit requested questions to the

jury if the pleadings and any evidence support them.” City of The Colony v. North Tex. Mun. Water

Dist., 272 S.W.3d 699, 746 (Tex. App.—Fort Worth 2008, pet. dism’d) (citing Elbaor v. Smith,

845 S.W.2d 240, 243 (Tex. 1992)). Accordingly, we review the trial court’s refusal to submit

questions de novo. Financial Ins. Co. v. Ragsdale, 166 S.W.3d 922, 926 (Tex. App.—El Paso 2005,

no pet.); see Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex. 1992) (per curiam) (holding it is

reversible error to deny submission of question raised by pleadings and evidence).


                                                  20
       Requested Question No.1

               In support of its argument regarding Requested Question No.1 and related instruction,

Trinity points to the undisputed evidence adduced at trial that the Village could not issue a mining

permit unless the property first complied with the Village’s zoning requirements; that Village

zoning changes could be made only with the written consent of the property owners; and that the

Landowners never agreed to re-zone the Lease properties. Trinity also points to evidence, mainly

testimony from its witnesses, that it contends shows that the Landowners refused to cooperate with

Trinity in its efforts to re-zone the property, including the following:


•      The Landowners never proposed any alternatives to re-zoning that would allow Trinity to
       mine, despite the fact that Trinity sought ideas from the Landowners;

•      Trinity requested a type of re-zoning that would not require the Landowners to deed their
       land to the Village, but the Landowners’ attorney suggested, the witness thought as a
       delaying tactic, that such an ordinance did not exist;

•      Trinity did not ask the Landowners to go to any meetings or prepare any studies;

•      The Landowners said they would never agree to re-zone all three properties at the same time;
       and

•      The Landowners requested a large amount of information that they said they needed before
       they would even consider a zoning change.


Finally, Trinity emphasizes provisions in the Lease that (1) impose a duty on Trinity to comply with

all ordinances and (2) gives Trinity, in conducting mining, processing, and removal operations, “the

right to do all things necessary or convenient in carrying out the purpose of” the Lease.

               Trinity argues that this evidence and its pleadings “presented a disputed fact issue

as to whether Landowners’s refusal [to agree to re-zone their properties] breached either express

or implied terms or duties under the Lease.” Therefore, Trinity continues, it was mandatory for the

                                                  21
district court to present the jury with a question and accompanying instruction on that issue, and its

failure to do so was an error that requires a new trial. We disagree.

               The conduct required by the parties under a contract is a question of law. See Lafarge

Corp. v. Wolff, Inc., 977 S.W.2d 181, 186 (Tex. App.—Austin 1998, pet. denied); Meek v. Bishop

Peterson & Sharp, P.C., 919 S.W.2d 805, 807 (Tex. App.—Houston [14th Dist.] 1996, writ denied);

see also X Techs., Inc. v. Marvin Test Sys., Inc., 719 F.3d 406, 413–14 (5th Cir. 2013) (citing Meek,

919 S.W.2d at 805). Any dispute concerning the failure of a party to comply with the contract

is a fact question for the jury. See Lafarge, 977 S.W.2d at 186; Meek, 919 S.W.2d at 807. Stated

another way, the “judge determines what conduct is required of the parties and, insofar as a dispute

exists concerning the failure of a party to perform the contract, the judge submits the disputed

fact questions to the jury.” Lafarge, 977 S.W.2d at 186 (citing ITT Commercial Fin. Corp. v. Riehn,

796 S.W.2d 248, 253 n.3 (Tex. App.—Dallas 1990, no writ)). Thus, under these principles, Trinity

is entitled to Requested Question No.1 only if the Lease obligates the Landowners to agree to re-zone

the Lease properties and, then, only if the evidence and pleadings raise a fact question regarding the

Landowners’ compliance with that obligation (not relevant here because the evidence is conclusive

that the Landowners did not agree to re-zone).

               Despite Trinity’s seeming suggestion to the contrary, the Lease has no provisions

requiring the Landowners to take any affirmative action regarding re-zoning. The bulk of the

burden and rights under the Lease belong to Trinity, including Trinity’s obligation under the Lease to

comply with any applicable ordinances. Likewise, we find no support for Trinity’s argument that the

Lease imposes an implied duty on the Landowners to agree to re-zone their property. Texas law does

not favor implied covenants. Nalle v. Taco Bell Corp., 914 S.W.2d 685, 687 (Tex. App.—Austin


                                                 22
1996, writ denied). We will look beyond the written agreement and imply a covenant only if it is

“necessary in order to effectuate the intention of the parties as disclosed by the contract as a whole.”

Danciger Oil & Ref. Co. v. Powell, 154 S.W.2d 632, 635 (Tex. 1941). An implied covenant is

sufficiently necessary to the parties’ intentions only if the obligation “was so clearly within

the contemplation of the parties that they deemed it unnecessary to express it. . . .” Id.; see Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex. 2009) (noting that

terms are implied because “the parties must have intended them and have only failed to express

them”). We will not imply a covenant simply because it is needed to make the contract fair, wise,

or just. Nalle, 914 S.W.2d at 687. Here, a Trinity witness explicitly acknowledged that the

parties did not contemplate that the Village would form or pass ordinances. See Mann Frankfort,

289 S.W.3d at 850. Further, the topic of ordinances is covered in the Lease, and the burden of

complying with them is placed squarely on Trinity. See Exxon Corp. v. Atlantic Richfield Co.,

678 S.W.2d 944, 947 (Tex. 1984) (“There can be no implied covenant as to a matter specifically

covered by the written terms of the contract.” (citing Freeport Sulphur Co. v. American Sulphur

Royalty Co., 6 S.W.2d 1039, 1042 (Tex. 1928))).

               Trinity also argues that the Landowners breached the duty to cooperate implied

in every Texas contract in which cooperation is necessary for performance of the contract. See

Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 770 (Tex. App.—Dallas 2005,

pet. denied). This duty requires that a party to a contract may not hinder, prevent, or interfere

with another party’s ability to perform its duties under the contract. See id. Under the Lease, stated

generally, Trinity had to pay yearly advance royalty payments until it began mining to maintain its

mining option, but it could terminate the Lease at any time after the fifth year. When it began mining


                                                  23
operations, it was obligated to pay royalties based on the mining production, with certain applied

minimums, and meet various other obligations in connection with the mining operations, including

the one at issue here, to comply with any applicable ordinances. The Landowners did nothing to

hinder or interfere with Trinity’s ability to perform any of these duties. At most, the Landowners

arguably interfered with Trinity’s pursuit of benefits incidental to the full execution of its obligations

under the Lease. See Case Corp., 184 S.W.3d at 774 (distinguishing performance of agreements

from benefits derived from agreement in determining whether party had duty to cooperate). Further,

no implied duty to cooperate would have required the Landowners to burden their properties with

zoning designations when the Lease did not specifically require them to do so and where not doing

so did not prevent Trinity from fulfilling its obligations under the Lease.

                We hold that the Lease does not obligate the Landowners to re-zone their properties.

Because there is no obligation under the Lease that would require the conduct contemplated

by Trinity’s Requested Question No. 1, Trinity was not entitled to a jury question, or its related

instruction, to resolve a fact question regarding Landowners’ compliance with that conduct, which

Trinity asserts does not exist in any event.


        Requested Question No.3

                With respect to its remaining point regarding the district court’s refusal to submit its

Requested Question No. 3, Trinity does nothing more than point out that the district court refused

to submit the question and complain that it was error. Trinity offers no argument, makes no

record references, and cites to no case authority. Accordingly, we conclude that Trinity has failed

to adequately brief this sub-issue. See Tex. R. App. P. 38.1; McIntyre v. Wilson, 50 S.W.3d 674, 682

(Tex. App.—Dallas 2001, pet. denied).

                                                   24
               We overrule Trinity’s fourth issue.


$25,000 damage award

               Trinity argues in its fifth issue that the jury’s damage award of $25,000 is not

supported by legally and factually sufficient evidence. As stated previously, the starting point for

an evidentiary-sufficiency review of a jury’s finding is the question submitted to the jury. See

Osterberg, 12 S.W.3d at 55; Golden Eagle, 116 S.W.3d at 762. Here, Question 6 asked, “What sum

of money, if any, if paid now in cash, would fairly and reasonably compensate the Landowners for

their damages, if any, that resulted from Trinity’s failure to comply?” The jury was instructed to

consider “only the reasonable fee, if any, for the necessary services of the Landowner’s attorneys in

the suit by the Village of Webberville and all costs and expenses, if any, incurred by the Landowners

in connection with that Litigation.” Trinity did not object to this damages question or instruction

as proposed and submitted. The jury answered, “$25,000.” In our evidentiary-sufficiency review

of the evidence supporting the jury’s finding here, we assess the evidence in light of the instruction

given. See Zimlich, 29 S.W.3d at 71 (stating that where there is no objection, evidence to support

finding based on the instruction should be assessed “in light of” the instruction given); Larson

v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985) (same); see also Equistar Chems., L.P.

v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (party’s failure to object to charge and

instruction waived any error, meaning that the measure of damages was as provided by the question

and instruction given).13


       13
           Also because there was no objection to the question or the charge, we need not address
whether the jury’s award was based on breach of the indemnity clause or, if on some other
breach, whether it was appropriate to award attorney’s fees as damages. See Qwest Commc’ns Int’l,
Inc. v. A T & T Corp., 114 S.W.3d 15, 32–33 (Tex. App.—Austin 2003), rev’d in part on other

                                                 25
               Stated generally, the Landowners’ argument at trial was that its damages as a result

of Trinity’s breach were the legal fees it had incurred because of Trinity’s failure to indemnify it in

connection with the Village’s lawsuit. In support of its damages, Trinity’s lead counsel testified

regarding his experience and background, including his work in Travis County, and his firm’s billing

practices. He testified to his belief that the fees he charged the Landowners were reasonable and

necessary, equitable and just, and that they were in line with Travis County and Texas practice. He

also testified about his consideration of the various Andersen factors, including the time and labor

required, the novelty and difficulty of the questions involved, the skill required, the fee customarily

charged, the likelihood that the acceptance of the particular employment would have precluded other

employment, the amount of money involved and the results obtained, time limitations, the nature

and length of the professional relationship with the client, the experience, reputation, and ability of

the lawyer or lawyers performing the services, and whether the fee is fixed or contingent on

results obtained or uncertainty of collection before the legal services have been rendered. See Arthur

Andersen & Corp. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

               Trinity points out that some of the work that the Landowners were billed for by

their attorneys took place before the Landowners were included in the Village’s suit against the

Landowners. But the Landowners’ attorneys testified that this was done in anticipation of suit and

also to determine Trinity’s position in the matter and further, to prevent the Landowners from being

dragged into the lawsuit. For example, they conducted research regarding what ordinances might



grounds, 167 S.W.3d 324 (Tex. 2005) (per curiam) (holding that attorney’s fees ordinarily cannot
be recovered as damages); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864,
868 (Tex. 2007) (party’s failure to object to charge and instruction waived any error, meaning that
the measure of damages was as provided by the question and instruction given).

                                                  26
possibly apply for Trinity’s proposed mining in the ETJ. The Landowners’ lawyer also testified that

he sent letters to Trinity warning them not to start mining without their approval each time Trinity

had notified the Landowners that they were about to start mining without that approval. He testified

that parts of the costs incurred in these damages were related to his fees for preparing for the

temporary injunction hearing and depositions of several witnesses. The Landowners’ witness also

testified generally about the work necessary in the Village case, including some discovery. He

did admit, however, that the Village had not yet pursued the Landowners actively in its case. The

evidence included the firm’s nine-page invoice documenting all the work done regarding the Village

matter (including dates, descriptions of work done, and attorney performing the work) and showing

a past amount of $38,879 owing.14 Under the applicable standards of review, and in light of the

instruction given to the jury, we conclude the evidence is both legally and factually sufficient to

support the jury’s damage finding. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005);

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

               We overrule Trinity’s fifth issue.


Trinity’s damages

               In its sixth and final issue, Trinity contends that because the evidence in the record

conclusively establishes that Trinity paid $705,000 in advance royalties to the Landowners

in reliance on the Lease and that Trinity incurred reasonable and necessary attorneys’ fees of

$196,740.51 in bringing suits against the Landowners, this Court should render judgment for Trinity



       14
          Trinity argues in its brief that the Landowners invoices show a $71,844.50 write-off in
connection with this damage award. Our review of the record, however, shows that write-off to be in
connection with the Landowners’ attorneys’ fee award, which Trinity does not challenge on appeal.

                                                27
or, in the alternative, remand the case to the trial court for reconsideration of Trinity’s damages.

Trinity offers no legal support for its contention or any citations to authorities, see Tex. R. App.

P. 38.1 (appellate briefing requirements), but its argument here seems to be a no-evidence challenge

to the jury’s non-finding on the question of Trinity’s damages. See City of Keller, 168 S.W.3d at 810

(noting that “no evidence” points may be sustained when the record shows that “the evidence

establishes conclusively the opposite of the vital fact” (citing Robert W. Calvert, “No Evidence” &

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361 (1960))).

               Regardless of what Trinity’s actual argument is, however, what it is asking this

Court to do is award it damages when the jury did not or, in the alternative, to send the case back

to the trial court to do so. But the jury did not award Trinity damages because the jury charge

instructed it not to based on its previous findings. Specifically, the jury was told, in prefaces to

Questions 4 and 5—i.e., the questions regarding Trinity’s damages—to skip Questions 4 and 5 if the

jury had found that Trinity had failed to comply with the Lease first:


       If

       (a)     your answer to Question 1 is “Yes” [it was] and your answer to Question 2
               is “No” [it was not]

       OR

       (b)     your answer to Question 3 is “Landowners” [it was Trinity] then answer the
               following question. Otherwise do not answer the following question.


Trinity did not object to the damages questions and related instructions as proposed and submitted.

In fact, when asked by the trial court during the charge conference, Trinity’s attorney affirmatively

stated that Trinity had no objections to the jury charge. If Trinity believed that the jury charge


                                                 28
presented an improper consideration of its damages because it conditioned those damages on

findings that only the Landowners had failed to comply with the Lease or that the Landowners had

failed to comply first, Trinity was required to timely object and make the trial court aware of its

complaint in order to preserve error for appeal. See Tex. R. Civ. P. 272, 274; Equistar, 240 S.W.3d

at 868. Trinity failed to preserve error to challenge the conditional format of the jury charge.

Therefore, Trinity may not do so here, and the damages are determined by the questions and

instructions given. See Equistar, 240 S.W.3d at 868.

               We overrule Trinity’s sixth issue.


                                           Conclusion

               Having overruled each of Trinity’s issues, we affirm the district court’s judgment.



                                             __________________________________________
                                             Jeff Rose, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: December 31, 2014




                                                29
