Rembert Enterprises, Inc. v. 1309, LLC, Charlie Cummings, and Jo Cummings ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00330-CV
___________________________
REMBERT ENTERPRISES, INC., Appellant
V.
1309, LLC, CHARLIE CUMMINGS, AND JO CUMMINGS, Appellees
On Appeal from the 367th District Court
Denton County, Texas
Trial Court No. 16-10107-367
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Rembert Enterprises, Inc. sued Appellees 1309, LLC, Charlie
Cummings, and Jo Cummings for breach of oral and written contract, common law
fraud, and fraud in the inducement regarding the sale of 336 acres of land. During the
jury charge conference, Rembert objected to the inclusion of an instruction in one of
the questions. The trial court overruled Rembert’s objection. Based on the jury’s
answers, the trial court entered a take-nothing judgment for Rembert. Rembert
moved for a new trial, but the trial court denied the motion after a hearing. This
appeal followed.
In its two issues, Rembert complains that the trial court inappropriately
included commentary from the pattern jury charge meant for judges and attorneys in
one of the jury questions. Although Rembert concedes that the disputed jury
instruction accurately stated the law, it argues that the instruction was not supported
by the pleadings and evidence and impermissibly induced the jury to decide a question
of law. Among other arguments, Appellees respond that Rembert has failed to show
harmful error. We agree.
A jury charge instruction is proper if it (1) assists the jury, (2) accurately states
the law, and (3) finds support in the pleadings and evidence. Seger v. Yorkshire Ins. Co.,
503 S.W.3d 388, 408 (Tex. 2016). Surplusage, even if a correct statement of the law, is
error. See Acord v. Gen. Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984) (“The jury need
not and should not be burdened with surplus instructions.”); Francis v. Ford, No. 02-
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10-00343-CV, 2011 WL 3546626, at *3 (Tex. App.—Fort Worth Aug. 11, 2011, no
pet.) (per curiam) (mem. op.) (“[T]he jury should not be burdened with surplus
instructions, even those that accurately state the law.”).1 But even erroneous
surplusage is subject to a harm analysis. See Tex. R. App. P. 44.1(a) (stating that no
judgment may be reversed on appeal on the ground that the trial court made an error
of law unless the court of appeals concludes that the error complained of either
probably caused the rendition of an improper judgment or probably prevented the
appellant from properly presenting the case to the court of appeals).
To determine harm, we must first ascertain whether the case was closely
contested. Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 755 & n.23 (Tex.
1998) (citing Lone Star Gas Co. v. Lemond, 897 S.W.2d 755, 756 (Tex. 1995)). In a
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The Texas Pattern Jury Charges are prepared by the Committee on Pattern
Jury Charges of the State Bar of Texas “as a guide for the bench and bar” in preparing
broad-form submissions, instructions, and questions. 4 McDonald & Carlson Tex.
Civ. Prac. § 22:16 (2d. ed.). “The comments to each PJC provide a ready reference to
the law that serves as a foundation for the charge” but may also include variations of
the recommended forms and additional questions or instructions “for special
circumstances.” Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury
Charges: Business, Consumer, Insurance, & Employment PJC introduction, at xxxix (2018).
Thus, some of the PJC comments may be appropriate for inclusion, depending on the
circumstances of the case, but they are to be used by the trial court and attorneys—
not the jury—in preparing the court’s charge. Id. at xxxvii; see generally USAA Tex.
Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501–02 & nn.23–24 (Tex. 2018) (op. on reh’g)
(observing that the PJC offers a variety of proposed questions and instructions,
including alternative questions and instructions, and that the PJC committee “suggests
‘[c]are must be taken to ensure that the question is appropriate under the facts of the
particular case’” (quoting Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Pattern Jury Charges: Business, Consumer, Insurance, & Employment PJC 101.2 cmt. (2016)).
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closely contested case, the inclusion of surplusage is likely to be harmful because it
tends to nudge the jury toward a particular verdict. See id. at 756. In determining
whether error in a jury charge probably caused the rendition of an improper judgment
so as to require reversal, we are supposed to analyze the entire record. Id.; see also
United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 469 (Tex. 2017) (“In reviewing alleged
error in a jury submission, we consider ‘the pleadings of the parties and the nature of
the case, the evidence presented at trial, and the charge in its entirety.’” (emphasis added)
(quoting Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex.
2009)).
We do not know if this case was closely contested because the appellate record
supplied to us contains only the reporter’s record of the jury charge conference, the
entry of the final judgment, and the motion for new trial. In its brief, under the
heading “Facts of Case,” which contains a single record reference to the clerk’s
record, cf. Tex. R. App. P. 38.1(g), Rembert states, “The facts of this case are not
particularly salient to this appeal and are provided primarily to give the Court a basic
narrative without getting into facts which were contested in court.” [Emphasis added.]
Rule of appellate procedure 34.6(c), “Partial Reporter’s Record,” states that if
an appellant requests a partial reporter’s record, it must include in the request a
statement of points or issues to be presented on appeal and will then be limited to
those points or issues. Tex. R. App. P. 34.6(c)(1). If the appellant complies with rule
34.6(c)(1)’s requirements, then the appellate court must presume that the partial
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reporter’s record designated by the parties constitutes the entire record for purposes
of reviewing the stated points or issues. Tex. R. App. P. 34.6(c)(4). But if the
appellant fails to comply with rule 34.6(c)’s requirements, a contrary presumption
arises: the reviewing court must instead presume that the missing portions of the
record contain relevant evidence and that the omitted evidence supports the trial
court’s judgment. Lyons v. Denton ISD, No. 02-18-00141-CV, 2018 WL 6565804, at *2
(Tex. App.—Fort Worth Dec. 13, 2018, no pet.) (mem. op.). Rembert did not file a
request for the reporter’s record with the trial court clerk. See Tex. R. App. P. 34.6(b),
(c).
Because the portions of the reporter’s record provided to us in this appeal do
not include any of the evidence presented to the jury during the trial, we cannot assess
whether this case was closely contested or evaluate any confusion the surplusage may
have caused. And because Rembert did not comply with rule 34.6(c)’s requirements,
we are required to presume that the missing—evidentiary—portions of the record
support the trial court’s judgment. See Tex. R. App. P. 34.6(c)(4); Lyons, 2018 WL
6565804, at *2; cf. Timberwalk Apts., 972 S.W.2d at 756 (“Given the vigorous
evidentiary dispute over the significance of written notice and counsel’s closing
argument, we conclude that the surplus instruction probably did improperly and
unduly nudge the jury to find against Cain.”). Accordingly, we overrule Rembert’s
two issues and affirm the trial court’s judgment. See Tex. R. App. P. 44.1(a).
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/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: July 25, 2019
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