Ramex Construction Co. v. Tamcon Services Inc. , 29 S.W.3d 135 ( 2000 )

D. CAMILLE HUTSON-DUNN, Justice,

concurring on motion for rehearing.

Although I agree with my fellow justices that Tamcon’s claim should be remanded for a new trial because Tamcon’s recovery was unsupported by its pleadings, I write separately to elaborate on the error which requires this result.

Tamcon argues in its motion for rehearing that the complained-of error was harmless because the question of waiver was submitted as an instruction. An error in jury instructions, Tamcon argues, cannot be grounds for reversal. There are two problems with this argument. First, the jury should have been submitted a question, along with an instruction, on waiver. See Comm. On PatteRN Jury Charges, State Bar op Tex., Texas Pattern Jury Charges-business, Consumer, Insurance, Employment PJC § 101.21 (1998) and comment; PJC § 101.24. Tamcon cannot contend that an omitted jury question cannot be grounds for reversal.

Second, the supreme court has recently found that an erroneous jury charge is subject to reversal unless the intermediate appellate court is satisfied that “properly submitted theories constituted the basis of the jury’s verdict.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex.2000)(on reh’g); see also Borneman v. Steak & Ale of Texas, 22 S.W.3d 411, 413 (Tex.2000)(jury charge which permitted jury to find liability on erroneous ground requires reversal). We cannot find that Ramex’s waiver was a properly submitted theory, because it was unsupported by pleadings and because Ramex objected to its trial by consent.

This charge was so inadequate as to invite error. Ramex did plead and bring forward proof of waiver on Tamcon’s part. This charge permitted the jury to take an instruction meant to be applied against Tamcon and use it in Tamcon’s favor. I would therefore find, consonant with Cas-teel, that this jury charge was reversible error.