WPS, Inc. v. Enervest Operating, LLC ( 2009 )

  Opinion issued November 23, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00759-CV

____________

WPS, INC., Appellant

V.

ENERVEST OPERATING, L.L.C., Appellee

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On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2004-35036

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MEMORANDUM OPINION Appellant, WPS, Inc. ("WPS"), appeals a final judgment, rendered upon trial to the jury and to the bench, in favor of appellee, EnerVest Operating, L.L.C., for actual damages and attorney's fees. We determine whether (1) the trial court abused its discretion in charging the jury; (2) legally and factually sufficient evidence supported the verdict; (3) various contractual provisions precluded or limited EnerVest's recovery; (4) the trial court correctly concluded that EnerVest provided the insurance required by the parties' contract; and (5) WPS preserved or adequately briefed certain of its appellate challenges. We affirm.

The Parties

EnerVest was an oil-and-gas acquisition company. EnerVest hired Baker Energy ("Baker") to run its day-to-day well operations. WPS made compressor packages--skids, compressors, and related machinery--which compress natural gas to inject into low-pressure oil or gas wells to improve production. EnerVest had a standing "Master Service Contract" (the "MSC"), dated December 2, 2002, with WPS. In December 2003, EnerVest rented a compressor package from WPS for its Garden Island Bay facility. The parties signed two contracts as part of this rental: (1) a "Rental Agreement" to lease the compressor and (2) a "Maintenance Services Contract" for service of the compressor package, along with an addendum thereto.

The Dispute

The WPS compressor was first run on February 5, 2003. Between that date and March 25, 2003, the date of the fire giving rise to this suit, the compressor had many problems and was frequently out of service. The parties dispute which of them was responsible for the problems. On March 25, the Baker contractors at the site heard a large gas leak. They spent 15 to 20 minutes trying to locate the leak. After they had determined that the leak was coming from the area of the WPS compressor, they decided to start the back-up compressor and to shut down the WPS one; however, before they could do so, the gas ignited from the heat of the WPS compressor, causing a fire.

No one disputes that a failed needle valve in the WPS compressor caused the gas leak, but they dispute (1) whether the needle valve failed because it was defective (EnerVest's position); (2) whether, instead, EnerVest improperly installed the compressor, causing vibrations that in turn broke the valve, causing the leak (WPS's position); and (3) whether the Baker contractors caused the fire because they improperly failed to shut off the compressor when they first heard the leak (WPS's position).

The fire burned for hours, destroying the compressor. EnerVest wanted WPS to provide a new compressor, to remove the damaged one, and to reimburse EnerVest its rental pre-payments for the months that the compressor was damaged; WPS wanted EnerVest to pay for the compressor to be fixed.

The Procedural History

The parties eventually sued each other. EverVest sued WPS for (1) breach of the Rental Agreement because WPS "promised a working compressor and delivered a compressor that never performed as warranted and ultimately failed to perform at all"; (2) breach of the MSC's express-warranty provision; and (3) breach of the Maintenance Services Contract addendum's 95%-uptime guarantee. EnerVest sought declarations that (1) WPS was obliged under the MSC to indemnify EnerVest; (2) EnerVest had no obligation to repair or to replace the compressor; and (3) because of the fire, EnerVest has no further obligations to WPS under any contract. WPS counterclaimed for (1) breach of the Rental Agreement, including failure to pay rent, failure to obtain insurance, and failure to repair the compressor, and (2) negligence, including failure to install the compressor properly and to turn off the compressor after the leak. WPS also sought damages under the theory of promissory estoppel for EnerVest's "failing to abide by its promise to obtain insurance acceptable to WPS."

Upon cross-motions for summary judgment, the trial court ruled that the Rental Agreement's indemnity clause applied and that EnerVest was obligated "to provide insurance to cover the loss in question," although the court verbally altered the latter ruling at the start of trial to be that EnerVest was obliged to procure the insurance required by the Rental Agreement. EnerVest's claim for breach of the MSC's express-warranty provision and its requests for declarations were not submitted to the jury or the trial court. EnerVest's claim for breach of the Maintenance Services Contract addendum's 95%-uptime guarantee was submitted to the jury, which found against EnerVest. The trial court also submitted a jury question on EnerVest's breach of the Rental Agreement--albeit not in broad-form manner and inquiring about an "internal defect" to the compressor--on which the jury found in EnerVest's favor. None of WPS's claims were submitted to the court or jury except for its claim that EnerVest had breached the Rental Agreement by failing to procure proper insurance; the parties submitted this one claim to the trial court, which ruled against WPS. The parties also submitted the issue of attorney's fees to the trial court, which ruled in EnerVest's favor and awarded it fees. The trial court entered findings of fact and conclusions of law and overruled WPS's post-judgment motions. WPS appeals.

Jury Charge Issues

In its issue "A," WPS raises three complaints about the jury charge.

A trial court must give "such instructions and definitions as shall be proper to enable the jury to render a verdict." Tex. R. Civ. P. 277 (emphasis added). An instruction is proper if it assists the jury, accurately states the law, and is supported by the pleadings and the evidence. See Tex. Worker's Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000); Tex. R. Civ. P. 278. A court is under no obligation to submit a requested jury instruction or definition that fails to meet these criteria. See Mandlbauer, 34 S.W.3d at 912.

A. "Proper Use" Predicate to Jury Question 1

Jury Question No. 1 read:

Was the cause of the March 25, 2004, fire an internal defect to the Compressor Package as furnished by . . . WPS, Inc?

You are instructed that by the terms of the rental agreement between WPS, Inc. and EnerVest,

EnerVest is responsible for the complete installation of the "Compressor Package."

WPS asserts that the trial court erred by "failing to include a necessary predicate for the finding of a 'defect' that being proper use of the equipment in question after its delivery and prior to failure." This issue was preserved to the extent that it mirrors the hand-written instruction that WPS proffered, and which the trial court refused, at the charge conference: "Where a plaintiff relies solely on circumstantial evidence to establish a defect, the plaintiff must present evidence of proper use of the product. Plas-Tex v. U.S. Steel, 772 S.W.2d 442." See Tex. R. Civ. P. 278 (requiring that complaint of failure to submit instruction be in writing).

WPS's whole argument rests on its view that, although EnerVest sued for breach of the Rental Agreement, legal concepts normally applicable only to claims for breach of the implied warranty of merchantability should have been incorporated into the charge under the facts of this case. Specifically, WPS argued here and below that it could not be liable for breach of the Rental Agreement unless the compressor's failure resulted from an internal defect that existed at the time of delivery, rather than from EnerVest's later, improper use of the compressor. Accordingly, in its objections and charge submissions, WPS relied on Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444 n.5 (Tex. 1989) ("In a case where the plaintiff relies solely on circumstantial evidence to establish a defect, the plaintiff must present evidence of proper use of the goods to make a prima facie showing of the defect."), and Texas Business and Commerce Code section 2A.212(b)(3) (Vernon 1994) (entitled, "Implied Warranty of Merchantability"; providing that to be merchantable, goods must be at least such as "are fit for the ordinary purposes for which goods of that type are used").

EnerVest did not allege or pursue a statutory breach-of-implied-warranty claim, however. Rather, it alleged, in relevant part, breach of the Rental Agreement because "WPS promised a working compressor and delivered a compressor that never performed as warranted and ultimately failed to perform at all." The petition also alleged that WPS had breached the MSC's express warranty that the compressor would be "free from defects in workmanship and materials" for one year and the Maintenance Services Contract addendum's 95%-uptime guarantee. ⁽¹⁾ Based on EnerVest's opening statement, the evidence that it presented in its case in chief, the parties' and court's discussions on WPS's motions for directed verdict, EnerVest's charge-conference statements, and its closing argument, it is evident that EnerVest was pursuing breaches of the various contracts' express terms, not claims based on a breach of the implied warranty of merchantability.

Likewise, the discussions upon WPS's motions for directed verdict indicate that the trial court understood EnerVest as asserting claims for breach of express contract (including the Rental Agreement), not for breach of the implied warranty of merchantability. ⁽²⁾ The trial court nonetheless concluded that the pivotal issue to submit to the jury for whether WPS had breached the Rental Agreement was whether the compressor was internally defective or not, so that "we will ask the jury a very specific question."

The trial court then created this "very specific" breach-of-contract question by piecing together jury questions that both sides had proposed, only some of which related to EnerVest's claim for breach of the Rental Agreement. For example, the trial court appears to have adapted WPS's proposed question for EnerVest's claims arising from the compressor's rental: "Did the compressor package leased by WPS, Inc. to EnerVest for the Garden Island Bay platform contain a defect upon delivery?" The trial court also appears to have incorporated elements of EnerVest's proposed questions relevant to insurance coverage, or perhaps to breach of the MSC's express warranty provision, all of which asked whether the fire was caused by an "internal" deficiency or defect. ⁽³⁾ Of course, EverVest had not proposed the above questions for its claim for breach of the Rental Agreement: for that claim, EnerVest had proposed a broad-form breach-of-contract question. However, because the trial court believed that ascertaining whether the Rental Agreement was breached required the jury to decide whether the compressor was internally defective, it adapted the "defect" question proposed by WPS, and the questions that EnerVest had proposed for insurance coverage or breach of express warranty in the MSC, into its own question concerning breach of the Rental Agreement, i.e., Jury Question No. 1.

Given the nature of EnerVest's claim, the court's and parties' discussions during trial, and WPS's specific complaints at trial and on appeal, ⁽⁴⁾ we cannot say that it was an abuse of discretion for the trial court to have rejected definitions and instructions that were relevant solely to claims for breach of the implied warranty of merchantability arising under statute--even though its question asked about an internal defect--when the question presented a breach-of-contract claim. Put another way, it was not an abuse of discretion to reject an instruction that would have converted a breach-of-contract claim, however submitted, into one for breach of an implied statutory warranty.

We overrule this challenge under WPS's issue A.

B. Failure to Define "Defect" in Jury Question No. 1

Also under its issue A, WPS argues that the trial court erred in "failing to include a definition of 'defect' in the charge, particularly to Question 1."

WPS contends that this challenge was preserved in two ways. First, at the charge conference, WPS argued: "Also, we object that the term 'defect' is not defined in the Charge, Your Honor; and for that reason, it's improper." However, WPS did not tender a written definition or even explain what the definition should be. This does not preserve error. See Tex. R. Civ. P. 273 ("Either party may present to the court and request written . . . instructions . . .); Tex. R. Civ. P. 276 ("When an instruction . . . is requested and the provisions of law have been complied with and the trial judge refuses the same, the judge shall endorse thereon 'Refused,' and sign the same officially. . . . Such refused . . . instruction . . . , when so endorsed shall constitute a bill of exceptions . . . and such procedure shall entitle the party requesting the same to have the action of the trial judge thereon reviewed without preparing a formal bill of exceptions."); Tex. R. Civ. P. 278 ("Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.") (emphasis added).

Second, WPS relies on the instruction included within its proposed charge. WPS did not obtain the court's endorsement of refusal on it, however. See Tex. R. Civ. P. 276 (requiring tendering of definition to court); Tex. R. Civ. P. 278 (providing that court's written refusal on definition creates conclusive presumption that definition was presented at proper time and that proponent excepted to same and entitling party who follows procedure to have court's ruling reviewed without formal bill of exceptions). In any event, the instruction tracked language applicable to the implied warranty of merchantability, which was not EnerVest's claim.

We overrule this challenge under issue A.

C. Predication of Jury Question No. 2

Jury Question No. 2 read:

If you answered "Yes" to Jury Question No. 1, answer the following question. Otherwise, do not answer the following question.

JURY QUESTION NO. 2

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate EnerVest for its damages, if any, resulting from the conduct you have found in answer to Jury Question No. 1?

[instructions concerning the elements of damages and interest followed]  

In its final challenge under issue A, WPS contends that the trial court erred in making "Jury Question No. 2 . . . predicated solely upon Question No. 1 with no allowance for consideration of the failure of the Enervest (Baker) operators to promptly shut down the Compressor upon discovery of the natural gas leak."

At the charge conference, however, this colloquy occurred:

WPS: We object to Question No. 3 [sic: should be No. 2], Your Honor, because it's only predicated on Question No. 1. In other words--

Court: Overruled.

* * *

WPS: Again, Your Honor, we would reemphasize Jury Question No. 2. It lacks additional predicates; in other words, more must be shown than a defect in order to get to Question No. 2.

Court: Overruled.

An objection can preserve error in a defective instruction. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). However, the objection here, in addition to lacking specificity, does not comport with the appellate challenge: that the instruction is defective because it makes "no allowance for consideration of the failure of the Enervest (Baker) operators to promptly shut down the Compressor upon discovery of the natural gas leak." See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (holding that complaint concerning charge was waived when only different objections were raised to charge at trial); see also Tex. R. Civ. P. 274; Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986) (overruled on other grounds by statute) (requiring that objection be sufficiently specific for basis to be understood).

We overrule this final challenge under WPS's issue A.

Legal- and Factual-Sufficiency Issues

A. WPS's Challenges

Under its issue "B," WPS argues that the trial court erred in denying its motions for directed verdict for the reason that no evidence of a defect in the compressor's valve existed. Under its issue "C," WPS raises legal- and factual-sufficiency challenges to the following four matters that it contends were elements under Jury Question No. 1: (1) that a defect in the compressor existed, (2) that that defect existed at the time of delivery, (3) that EnerVest used the compressor properly, and (4) that the defect caused the fire. All of these challenges were preserved by either motions for directed verdict, for JNOV, or for new trial or by charge objections.

B. Standards of Review

When made on an evidentiary basis, rulings on motions for directed verdict and for JNOV are reviewed under the same legal-sufficiency test as are appellate no-evidence challenges. See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005).

When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue for which it did not have the burden of proof, it must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Such a no-evidence challenge will be sustained when "'(a) there is 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, © the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.'" King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

In our legal-sufficiency review, "we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary." Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). Nonetheless, "[t]he final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review . . . . [L]egal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Wilson, 168 S.W.3d at 827.

In reviewing a factual-sufficiency challenge to a finding on an issue on which the appellant did not have the burden of proof, we consider and weigh all of the evidence and set aside the judgment only if the evidence that supports the challenged finding is so weak as to make the judgment clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We must examine both the evidence supporting and that contrary to the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

The fact finder is the sole judge of witnesses' credibility and the weight to be given their testimony, and the fact finder may choose to believe one witness over another. Wilson, 168 S.W.3d at 819 (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). Because it is the fact finder's province to resolve conflicting evidence, we must assume that the fact finder resolved all evidentiary conflicts in accordance with its decision if a reasonable human being could have done so. See Wilson, 168 S.W.3d at 820 (legal sufficiency); Jackson, 116 S.W.3d at 761 (factual sufficiency). An appellate court may not impose its own opinion to the contrary of the fact finder's implicit credibility determinations. Wilson, 168 S.W.3d at 819 (legal sufficiency); Jackson, 116 S.W.3d at 761 (factual sufficiency).

"When a party in a civil case raises a proper objection to an improper jury charge or instruction, we measure the sufficiency of the evidence against the jury charge or instruction that should have been given." Murphy v. Am. Rice, Inc., No. 01-03-01357-CV, 2007 WL 766016, at *16 (Tex. App.--Houston [1st Dist.] Mar. 9, 2007, no pet.) (citing St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002)). "However, if no objection is made, or if an incorrect objection is made, we measure the sufficiency of the evidence against the jury charge or instruction actually given." Id.

Because we have already held that the trial court did not abuse its discretion in refusing WPS's proffered instructions, we measure the sufficiency of the evidence against the charge actually given. See id. Accordingly, because WPS's evidentiary challenges based on the defect's existence at the time of delivery and on EnerVest's proper use of the compressor measure sufficiency against language that was not included in the charge, WPS cannot base its sufficiency challenge on them. ⁽⁵⁾

C. Discussion

The charge asked whether "the cause of the . . . fire [was] an internal defect to the Compressor Package as furnished by . . . WPS, Inc." Because "defect" was undefined in the charge, we look to the term's commonly understood meaning for our sufficiency review. See EMC Mortgage Corp. v. Jones, 252 S.W.3d 857, 869 (Tex. App.--Dallas 2008, no pet.); Kroger Co. v. Brown, 267 S.W.3d 320, 323 (Tex. App.--Houston [14th Dist.] 2008, no pet.). The commonly understood meaning of "'defect' is 'an irregularity in a surface or a structure that spoils the appearance or causes weakness or failure.'" Coldwell Banker Whiteside Assocs. v. Ryan Equity Partners, Ltd., 181 S.W.3d 879, 886 (Tex. App.--Dallas 2006, no pet.) (quoting Webster's Third New Int'l Dictionary 591 (1981)).

1. Legal Sufficiency

The following evidence, viewed in the light most favorable to the verdict, supports the finding that the compressor contained an internal defect that caused the fire. The source of the fire was a needle valve that broke, causing gas to leak, which the WPS compressor engine ignited. It was WPS that designed or put together the "compressor package; engine, compressor, and . . . the skid" and that selected the valves, including the one that broke. Prior to the fire, the lead Baker operator at the Garden Island Bay facility "did not think or believe that there was a vibration problem with" WPS's compressor, nor did "WPS, EnerVest or anybody" suggest to him that such a problem existed.

Before the compressor package's installation, Ross Simon, WPS's salesman, inspected the platform on which the unit would be installed. When Buck Wells, EnerVest's production foreman, asked Simon before installation what would "keep this unit from walking off" of its platform, Simon advised that the unit's weight would do so and did not suggest that it needed to be bolted or welded to the platform. No one from WPS had advised EnerVest before the fire that the compressor had to be welded or bolted to the skid, that it was improperly installed, or that it should not have been installed on the platform in the way that it was, despite WPS's mechanics having been on site repeatedly after installation. ⁽⁶⁾ EnerVest would have secured the compressor package had WPS recommended it. Shelton Langley, Baker's operator, never heard anyone from EnerVest or Baker express that there might be vibration problems with the unit, and he had no reason to believe that there were any. The non-WPS compressor that replaced the WPS compressor at the Garden Island Bay facility did not experience the same problems that the WPS compressor had. Furthermore, Wells testified that compressors did "not usually" have the type of harmonic vibration problems that could cause valve breakage and that he had never before encountered such vibration problems from a platform-mounted compressor. Likewise, Buddy Adams, another Baker operator, had never had any experience in the past with vibrations causing breakages on compressors or their packages. And Adams confirmed that no one, including anyone from Enervest and WPS, had suggested prior to the fire that the unit had a vibration problem. ⁽⁷⁾

Another WPS compressor unit that EnerVest used at its separate Bay de Chene facility had an identical valve break in the exact same way as had the one at the Garden Island Bay facility. In response to this break, WPS changed out all of the needle valves on the Bay de Chene unit because WPS did not want to "take a chance if that was a bad design or a bad batch of valves . . . ." Although the Bay de Chene unit was not welded or tied down either, WPS had told EnerVest that as long as it was not run at more than a thousand RPMs, it could be "left as is." Additionally, correspondence from Killingsworth concerning this unit indicated that "[t]here have been comments of vibration on the unit at 1300 plus RPMs but nothing out of the ordinary to require documentation or further inspection." Killingsworth testified that nothing indicated that the Bay de Chene unit had any sort of harmonic vibration problem and that, had there been such an indication or apparent problem, he would have "made a change on it." After the valve failure in the Bay de Chene unit, WPS did a vibration study on that unit and concluded that the "vibration levels [were] acceptable," albeit "on the high side of the acceptable limit." Similarly, the Garden Island Bay facility WPS compressor was run "in the neighborhood of 1250 to 1350 [RPMs], depending on the load."

The Baker contractors allowed the Garden Island Bay facility compressor to continue running after the leak happened in order to locate the source of the leak through sound, for which continued pressure was required. They were not authorized to shut the compressor down until they had pinpointed the problem's source. The Baker contractors handled the gas leak appropriately and "on a professional level," and Wells had no criticism of their waiting to shut off the WPS compressor in an attempt to isolate the leak.

The above evidence, albeit disputed, is some evidence that the valve was defective; that it did not break because of vibration arising from EnerVest's improper installation of the unit; that if it did break from vibration, then WPS's not having fully filled the skid with concrete may have contributed to that result; and that the Baker contractors acted properly in allowing the compressor to run after a leak was detected, so that their actions were not a superseding cause of the fire. Accordingly, we hold that there was legally sufficient evidence to support the jury's answer to Jury Question No. 1.

2. Factual Sufficiency

a. deficiency

In support of its factual-sufficiency challenge to the evidence showing a deficiency, WPS relies on the testimony of (1) its engineering expert, John Thomas Steeper, and (2) its president and owner, Seth Williamson. Williamson testified that WPS still used the brand of valve that broke and that some of his customers specifically requested that brand, implying that the brand was of good quality. However, EnerVest presented evidence that the same brand valve broke on both WPS compressors; that WPS replaced all of the valves on the Bay de Chene unit as a precaution; and that vibration did not lead to the valves' breakage.

WPS also relies on Steeper's testimony that the fire was caused by the failure of the valve "at a root of one of the threads." He opined that the break was caused by fatigue, which he in turn opined was caused by vibration. He observed that in the case of valves such as that one, there are "some miscontinuities in the threads," which is where failures normally occur; however, that did not render the valve defective. He stated that the testing that he performed on the valve showed that a fatigue failure had occurred "and it was not . . . a defective part." Steeper testified that the Garden Island Bay compressor's installation was not what he would consider a "normal installation" and that he "question[ed]" it because most compressors of comparable size were bolted or welded down, resulting in "less chance" of vibration. He also "suspect[ed]" that the Bay de Chene compressor's valve had broken from vibration.

However, Steeper would not say that the Garden Island Bay unit's installation was improper, and he could not say that its valve would not have failed if the unit had been bolted to the platform. He also admitted that he could not observe the Garden Island Bay facility compressor functioning because it had burned, that he did not know at what RPM the Bay de Chene facility compressor had been running when the identical needle valve broke, that he was not sure whether the broken equivalent valve in the Bay de Chene unit had been checked for vibration, and that his conclusion as to why the Bay de Chene unit's valve broke was probably speculation. Steeper also admitted that adding weight to the compressor package--for example, by putting concrete in the skid--could make a difference in dampening vibration. He admitted that he had not "discussed" whether WPS typically added concrete to the skid package. Steeper also admitted that in his earlier deposition, he had indicated that the valve "likely had a deficiency in it to start the crack," although he explained at trial that he had not meant defect by the use of the word "deficiency." He also testified by deposition that the test results on the break showed a "stress riser," which "could have a ding, a gouge, or any number of things." Finally, Steeper testified that WPS ought to know whether its compressor could be installed on the platform or not.

Given the entirety of Steeper's testimony, we cannot say that EnerVest's contrary evidence of an internal defect is so weak as to render the jury's answer to Jury Question No. 1 clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. We thus hold that the evidence was factually sufficient to show an internal defect.

b. causation

In support of its factual-sufficiency challenge to the evidence showing causation, WPS relies on (1) the fact that the Baker contractors did not promptly shut down the compressor, which WPS contends was done to avoid "loss of production . . . for a few hours," and (2) Courville's opinion that a compressor should immediately be shut down when a gas leak develops and that a gas leak can be located even when the compressor is off.

The jury was entitled to believe the testimony of the Baker contractors--that the leak could be found only by leaving the compressor running and that their leaving it running was thus reasonable--and to disbelieve Courville's opinion to the contrary. Given the state of the record, we cannot say that the evidence concerning causation that supports the jury's answer to Jury Question No. 1 is so weak as to make the verdict clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. We thus hold that the evidence was factually sufficient to show causation.

3. Conclusion

We overrule WPS's issues B and C in their entirety.

Issues Concerning Limitation of WPS's Liability to EnerVest

Under its issues "D" and "G," WPS argues that three contractual provisions precluded or limited its liability to EnerVest. ⁽⁸⁾

A. The Rental Agreement's Indemnity Provision

The Rental Agreement contained the following indemnity provision:

13. Indemnification

* * *

[EnerVest] covenants and agrees to fully defend, protect, indemnify, and hold harmless [WPS], . . .from against each and every claim, demand, or cause of action and any liability, cost, expense . . . , damage or loss therewith, which may be made or asserted by [EnerVest], . . . on account of personal injury, death, or property damage caused by, arising out of, or in any way incidental to, or in connection with the performance of the work herein, except such as may result from the negligence or willful misconduct of [WPS]. . . .

(Emphasis added.) The trial court entered a conclusion of law that "[t]he indemnity provision in ¶ 13 of the Rental Agreement does not preclude recovery by EnerVest in this case for the damages submitted to the jury by jury question."

Under its issue D, WPS argues that "since there was no [jury] finding of negligence or willful misconduct by WPS, Enervest is required to indemnity [sic] and hold harmless WPS against any claims by EnerVest arising out of this contract." WPS's argument under its issue G is similar: "Because there was no finding by the jury as to whether or not the 'defect' referenced in Jury Question No. 1 was occasioned by the 'negligence or willful misconduct of [WPS]' there were insufficient findings upon which the trial court could base" its conclusion of law.

WPS cites no authority under issue G, and the only authority cited under issue D for the relevant challenge is that concerning the standard of review for challenges to findings of fact and conclusions of law. For this reason alone, the appellate challenge is unmeritorious. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Howeth Invs., Inc. v. City of Hedwig Village, 259 S.W.3d 877, 902 (Tex. App.--Houston [1st Dist.] 2008, pet. denied) (relying on predecessor to rule 38.1(i) to overrule issue containing totally inadequate legal analysis and no citation to authority).

In any event, it is not surprising that there were no jury questions submitted on WPS's negligence or willful misconduct because WPS did not request them. It was WPS's burden to raise and to obtain any necessary findings on this liability-limiting affirmative defense, which had not even been pleaded before trial. See Cont'l Holdings, Ltd. v. Leahy, 132 S.W.3d 471, 475 (Tex. App.--Eastland 2003, no pet.) ("The limitation-of-liability provision in the contract constitutes an affirmative defense."); cf. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) (providing that defendant, as proponent of limitations affirmative defense, had burden to plead, to prove, and to obtain finding on that defense); Freeman v. Carroll, 499 S.W.2d 668, 670 (Tex. Civ. App.--Tyler 1973, writ ref'd n.r.e.) ("Appellant did not request special issues raising the question of an express contract . . . . Since it is the defendant's duty to request proper issues inquiring into affirmative defenses, we cannot say the trial court erred by not submitting an issue inquiring into the existence of an express contract [as an affirmative defense to plaintiff's claim of quantum meruit] . . . ."). WPS does not discuss why its failure to obtain such jury findings should preclude judgment for EnerVest. Additionally, WPS does not explain how EnerVest's claim for breach of the Rental Agreement is a "claim . . . on account of personal injury, death, or property damage," as required for this indemnity provision to apply.

We overrule this challenge under WPS's issue D, and we overrule its issue G in its entirety.

B. The MSC's Liability-Limitation Provision

Paragraph 16 of the MSC provided:

16. WARRANTIES

16.1 [WPS] warrants only title to the products, supplies and materials, and that the same are free from defects in workmanship and materials for a period of one (1) year from the date of delivery. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS OR OTHERWISE WHICH EXTEND BEYOND THOSE STATED IN THE IMMEDIATELY PRECEDING SENTENCES [sic]. [WPS's] liability and EnerVest's exclusive remedy in any breach of warranty arising out of the sale or use of any products, supplies or materials is expressly limited to the replacement of such products, supplies or materials on their return to [WPS] or to the allowance to EnerVest of credit for the cost of such items.

. . .   

Under its issue D, WPS contends that if the jury's answer that the compressor contained an internal defect can be construed as a finding of liability on EnerVest's breach-of-express-warranty claim based upon the MSC's paragraph 16, then WPS's liability is limited by the same paragraph of the same agreement. This challenge was raised in WPS's motions for JNOV, new trial, and directed verdict.

WPS offers no authority in support of this challenge, nor does it explain how the MSC's provisions control in light of the trial court's conclusion of law that "[t]he Rental Agreement controls in this case as ruled on summary judgment." For these reasons alone, the challenge is not sustainable.

Additionally, the trial court granted WPS's directed verdict on this ground, ruling that (1) the Rental Agreement applied, but that (2) if EnerVest pursued its breach-of-express-warranty claim based on the MSC's paragraph 16, then the limitation-of-liability portion of that paragraph would also apply. The following discussion between the trial court and EnerVest ensued:

Court: [I]f [EnerVest] is correct that the Master Service [Contract] contains rights, it also contains the remedy [of] limitations. And so if that's what you [WPS] are seeking a directed verdict that any claim by [EnerVest] under Section 15 [sic] of the Master Service [Contract], limitation of liability applies, yes, it does.

EnerVest: That just gets us to zero on that.

Court: I think it does. So there we are. Claim is under that, then the remedies are under that, too. So I think we are back to the lease agreement [Rental Agreement]."

(Emphasis added.) The trial court then reiterated its ruling that if EnerVest pursued its breach-of-express-warranty claim based on the MSC's paragraph 16, the paragraph's limitation-of-liability provision would also apply. The discussions during the hearings on EnerVest's motion for entry of judgment and WPS's post-judgment motions also indicate that the trial court considered the case to have been tried on the Rental Agreement.

The applicable jury issue (Jury Question No. 1)--"Was the cause of the . . . fire an internal defect to the Compressor Package as furnished by . . . WPS, Inc.?"--was qualified by an instruction that indicated that the Rental Agreement applied at least in part. Based on the directed-verdict discussion and ruling, this jury question, and the discussions at the post-verdict hearings, it appears that at the time of submission to the jury, EnerVest was no longer pursuing breach of the MSC's express warranty provision and that Jury Question No. 1 was intended to encompass EnerVest's claim for breach of the Rental Agreement.

We overrule this challenge under WPS's issue D.

C. The Rental Agreement's Force Majeure Provision

In the final argument under its issue D, WPS contends that the force majeure provision of the Rental Agreement "relieves WPS from any obligations under the rental Agreement because clearly, compliance with the terms and conditions of the Rental Agreement were [sic] prevented by the fire which destroyed [the] compressor."

WPS does not indicate how it preserved this complaint, and we have not found it in its motions for directed verdict, for JNOV, or for new trial, in the record from the hearings on these motions or from EnerVest's motion for entry of judgment, or in WPS's charge objections. The challenge is therefore waived. See Tex. R. App. P. 33.1(a)(1). Moreover, WPS's entire appellate argument is set out above; there is no analysis or citation to authority, and we would thus not consider its merits in any event. See Tex. R. App. P. 38.1(i); Howeth Invs., Inc., 259 S.W.3d at 902.

We overrule this final challenge under WPS's issue D.

Challenges to the Conclusion of Law That EnerVest Complied With Its Obligation to Purchase Insurance

Upon cross-motions for summary judgment, the trial court ruled that EnerVest was "obligated to provide insurance to cover the loss in question." During trial, the trial court clarified that ruling:

The ruling on the merits by the Court is that the rental agreement governs. And in looking at, pretrial, Rule 166, I'll tell you that the Court construes the agreement to require EnerVest . . . to comply with the rental agreement which includes requiring [sic] the insurance policy as specified in that contract.

The parties' discussion at that time also indicated that the court would try the issue of whether the policy that EnerVest obtained complied with the Rental Agreement. Later during trial, outside the jury's presence, the court received evidence on this issue. After judgment, the trial court rendered the following relevant findings of fact and conclusions of law:

PRELIMINARY FINDINGS OF FACT

1. EnerVest purchased a policy of external physical loss all-perils insurance, . . . with an effective date of October 1, 2003 and an expiration date of October 1, 2004 (hereinafter "the Policy"), which covered the WPS compressor package at issue. . . .

2. Underwriters at Lloyd's issued a certificate of insurance dated February 18, 2004 . . . designating WPS as an "additional insured . . . on all policies where and to the extent required by written contract."

3. WPS has filed a direct action against Underwriter's at Lloyd's . . . , which is pending in Louisiana . . . , in which WPS has admitted that the Policy covers the compressor package at issue.

. . .

CONCLUSIONS OF LAW

1. The Rental Agreement controls in this case as ruled on summary judgment.

2. Article 19 of the Rental Agreement . . . obligated EnerVest to "furnish external physical loss all-perils insurance coverage on the equipment."

3. The term all-risks and all-perils does not indicate coverage for any event of loss, but instead describes a type of insurance policy that is different from a traditional named perils policy.

4. All-risks or all-perils policies are designed only to cover damages caused by external forces.

5. EnerVest complied with its obligation under Paragraph 19 of the Rental Agreement by providing a policy of external physical loss all-perils insurance coverage on the equipment.

. . .

(Emphasis in original.) It was clear--from the trial discussions, the court's findings and conclusions, and recitations in the final judgment--that the trial court did not try the issue of coverage.

In its issue "E," WPS contends that the trial court erred in these rulings and in rendering the above findings and conclusions.

The Rental Agreement required that EnerVest "furnish external physical loss all-perils insurance coverage on the equipment for a coverage value acceptable to [WPS]." No Texas case defines "external physical loss all-perils insurance." However, an all-risks or all-perils insurance policy is "one in which the insurer undertakes the risk for all losses of a fortuitous nature, which, in the absence of fraud or other intentional misconduct of the insured, is not expressly excluded in the agreement." Muniz v. State Farm Lloyd's, 974 S.W.2d 229, 234 (Tex. App.--San Antonio 1998, no pet.); see Andrew C. Hecker Jr. & M. Jane Goode, Wear & Tear, Inherent Vice, Deterioration, Etc.: the Multi-Faceted All-Risk Exclusions, 21 Tort & Ins. L.J. 634, 634 (1986) [hereinafter "Hecker & Goode"]. Some courts have equated a fortuitous loss, within the meaning of an all-risk insurance policy, with a loss arising from external or extrinsic forces, so that losses resulting from an inherent quality or defect in the item insured are not within the scope of coverage. See SMI Realty Mgmt. Corp. v. Underwriter's at Lloyds, London, 179 S.W.3d 619, 627 n.3 (Tex. App.--Houston [1st Dist.] 2005, pet. denied) (noting same); Goodman v. Fireman's Fund Ins. Co., 600 F.2d 1040, 1041-42 (4th Cir. 1979) (in interpreting clause "against all risks of physical loss or damage from any external cause," stating, "The addition of the phrase 'external cause' to the 'all risks' clause constitutes no real limitation on the scope of the latter. If the loss did not result from inherent defect, ordinary wear and tear, or intentional misconduct, its cause was necessarily external."); see also City of Burlington v. Indemnity Ins. Co. of N. Am., 332 F.3d 38, 47-48 (2nd Cir. 2003) (comparing this line of authority with more recent line of authority applying more subjective interpretation of fortuity, which considers whether parties knew of or expected loss); 10A Couch on Ins. § 148:59 (3d ed.) (entitled "External Cause Requirement in All-Risk Insurance"). Regardless of how different courts might interpret fortuity, the Rental Agreement's use of the term "external" in conjunction with "all-perils insurance" clearly meant a policy that provided coverage only for those losses with "external" causes.

This is what EnerVest procured: an all-risks policy, insuring "[a]ll risks of physical loss or damages from any cause . . . except as hereinafter excluded," with a fairly standard exclusion:

Notwithstanding anything contained herein to the contrary, this certificate does not insure:

a. the cost of repairing or correcting wear and tear, metal fatigue, mechanical or electrical breakdown or failure, inherent vice, latent defect, gradual deterioration, corrosion, rust, dampness of atmosphere, freezing or extremes of temperature or expansion or contraction due to changes in temperature, but the foregoing shall not be deemed to exclude any other loss, damage or expense caused by or resulting from any of the aforesaid conditions;

. . . .

(Emphasis added.) See Hecker & Goode, passim (discussing judicial interpretation of standard all-risks exclusions, including inherent vice, latent defect, and wear and tear). This policy had coverage dates on October 1, 2003 to October 1, 2004, and a "revised property . . . schedule" produced with it listed the WPS Garden Island Bay facility compressor. Also in evidence was the corresponding certificate of insurance, naming WPS as the certificate holder, which (1) gave WPS additional insured status "on all policies where and to the extent required by written contract"; (2) specifically listed the WPS compressor at the Garden Island Bay facility; and (3) showed a date of February 18, 2004, predating the fire. The trial court did not err in concluding that this policy was what the Rental Agreement required.

We address briefly further arguments that WPS asserts under this issue. First, WPS contends that the Rental Agreement "required insurance [that] would have covered all risks, irrespective of cause[,] if same were a fortuitous event"; accordingly, because the needle valve's breakage and resulting fire "were not anticipated by either [party] and [were] thus a fortuitous event," the loss "would have been covered by an all-risk policy[,] and as a result, EnerVest is responsible for the cost of repairs, irrespective of the jury's finding [in Jury Question No. 1]." This argument goes to whether the loss was covered under the policy that EnerVest procured, not whether EnerVest procured the type of policy that the Rental Agreement required. The trial court never tried the issue of coverage because that issue was pending in a Louisiana lawsuit brought by WPS. How the Louisiana court will interpret this all-risks policy's standard exclusionary language is irrelevant.

Second, WPS argues that EnerVest's breach "should relieve WPS, as a matter of law[,] from the payment of damages to EnerVest and attorney's fees." We have already held that the trial court correctly determined that EnerVerst did not breach the Rental Agreement's insurance provision, and in any event, WPS provides no authority or analysis to support this issue. See Tex. R. App. P. 38.1(i); Howeth Invs., Inc., 259 S.W.3d at 902.

Third and alternatively, WPS argues that "there are insufficient findings by the jury to determine if there would be coverage under the required policy." This is not surprising because (1) the parties submitted to the court the issue of whether EnerVest breached the requirement to procure insurance and (2) the court did not determine coverage.

Fourth, WPS contends that the policy's having a $50,000 deductible, which was not shown in the certificate that WPS received, breached the requirement that the "coverage value" be acceptable to WPS. However, "coverage value" is not the same as "deductible"; the Rental Agreement was silent regarding a deductible.

Fifth, WPS contends that other policy exclusions breached the Rental Agreement because they excluded coverage for loss or damage to "internal combustion engines" and "mechanical or electrical breakdown or failure" "unless caused by or resulting from external explosion and/or fire." WPS's argument is that, if the trial court's "ruling that the insurance meets the contract provisions is allowed to stand, WPS will be faced with the defense from the insurance company that the above listed exclusions apply with no recourse. . . . To hold otherwise allows EnerVest to assert exclusions which deny coverage without any risk or consequence." However, the trial court did not decide coverage or whether these exclusions actually applied; additionally, we have interpreted the Rental Agreement to require all-risk insurance for fortuitous events arising from external causes, and these provisions are not inconsistent with that requirement--whatever their application is ultimately determined to be.

Sixth and finally, WPS argues that a number on a property schedule associated with the WPS compressor, as well as the schedule's printing date, indicate that "EnerVest did not have coverage until after the fire," specifically, that these notations indicate that the policy was not effective at the time of the fire because the premium was prorated. Suffice it to say that the evidence in this regard is disputed and is not as clear as WPS contends; in any event, the cited evidence does not render the trial court's findings against the great weight and preponderance of the evidence.

We overrule WPS's issue E.

Conflict in Jury Questions Nos. 1 and 3

Under its issue "F," WPS contends that Jury Questions Nos. 1 and 3 are "inconsistent and require reversal" because, for the former, the jury allegedly had to find that EnerVest properly used the compressor (WPS's breach-of-implied-warranty-of-merchantability argument), and for the latter, the jury had to find implicitly that EnerVest's improper use of the compressor caused its down time. ⁽⁹⁾  

WPS waived this complaint by having failed to raise it before the jury was discharged. See Oyster Creek Fin. Corp. v. Richwood Inv. II, Inc., 176 S.W.3d 307, 324 (Tex. App.--Houston [1st Dist.] 2004, pet. denied) ("It is well-settled that, to preserve error, an objection to conflicting jury findings must be made before the jury is discharged."). In any event, the basis for this challenge is faulty because it assumes that Jury Question No. 1 presented, and EnerVest pursued, a breach-of-implied-warranty-of-merchantability claim, so that the question should have included an instruction that EnerVest properly used the compressor after delivery. As discussed above, the trial court did not abuse its discretion in refusing WPS's proffered instruction on proper use. Without this instruction, the answers are not necessarily inconsistent.

We overrule WPS's issue F.

Legal- and Factual-Sufficiency Challenges to Damages and Attorney's Fees

Under its issue "H," WPS complains that there is legally and factually insufficient evidence of (1) actual damages and (2) attorney's fees.

A. Actual Damages

WPS does not explain where it preserved its challenges to actual damages, and we have not found them in its charge objections or its motions for directed verdict, JNOV, or new trial. See Tex. R. App. P. 33.1(a)(1). In any event, they are without merit. The charge allowed the jury to consider, as elements of actual damages, EnerVest's expenses in installing the WPS compressor and its expenses in removing it after the fire. The jury awarded $176,186 in actual damages. One of EnerVest's vice presidents, Barbara King, testified without objection that the former expense was $150,475 and that the latter expense was $60,496. WPS contends that King had no personal knowledge of the costs or expenses, but the record that WPS cites in support does not say this and, again, WPS never objected to her testimony. WPS also complains that no invoices, checks, or "other records" supporting the accounting summary were allegedly introduced. However, during King's testimony, EnerVest introduced Plaintiff's Exhibit 73--a printed "readout" from its accounting department indicating EnerVest's actual costs of installation and replacement, from which King testified--to which WPS advised the trial court that it had "no objection." In any event, WPS cites no authority saying that failure to introduce such documentation renders testimony based on it incompetent, rather than making it a credibility determination for the jury to decide.

B. Attorney's Fees

WPS did not need to preserve its legal- and factual-sufficiency challenges to the evidence supporting attorney's fees because the issue was tried to the court. See Tex. R. App. P. 33.1(d). But to the extent that WPS argues that EnerVest's counsel did not segregate his fees, WPS did not raise this objection below and has waived it. See Tex. R. App. P. 33.1(a)(1).

WPS contends that EnerVest's counsel's testimony of his and his associate's fees was "unsupported," but it was not: the underlying bills were admitted into evidence. He also testified, without objection, about his experience and that his fees were reasonable and necessary. He further testified without objection that the total amount through trial was $288,560.71 and opined that fees for an appeal would be $25,000, for a petition of review in the Texas Supreme Court would be $10,000, for briefing there would be $15,000, and for oral argument there would be $5,000. The trial court awarded $260,000, $25,000, $10,000, $15,000, and $5,000, respectively. There was ample evidence to support the award of fees.

We overrule issue H in its entirety.

Jury Misconduct

Under its issue "I," WPS argues that the trial court erred in overruling its motion for new trial on the basis of juror misconduct. In support, WPS submitted the affidavits of two jurors, who averred that (1) the jury effected a compromise verdict, so as not to have to return the following week to continue deliberations, and (2) the jury believed that it was answering the charge in such a way that neither party would recover. The trial court struck the affidavits and denied the motion.

The affidavits were patently inadmissible. See Tex. R. Civ. P. 327(b) ("A juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes."); Tex. R. Evid. 606(b) ("Upon an inquiry into the validity of a verdict . . . , a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve."). Without the affidavits, WPS had no evidence to support this new-trial ground.

WPS implicitly acknowledges in its brief that the affidavits were inadmissible. And although WPS states in passing that the rules precluding consideration of such evidence are "unduly broad and may, under certain circumstances . . . [deny] litigants due process of law," WPS never briefs any constitutional challenge to the exclusionary rule. The principal authority that it cites comes from Florida, and the relevant statute discussed in those cases differs materially from the Texas rules.

We hold that the trial court did not abuse its discretion in striking the affidavits and overruling this challenge in WPS's motion for new trial. We overrule WPS's issue I.

Modification of Summary-Judgment Ruling

WPS's entire argument under its issue "J" (mislettered as issue "H") is:

The order of the Trial Court granting a partial summary judgment provided in pertinent part: "THE COURT FINDS AND RULES AND ORDERS [EnerVest] is obligated to provide insurance to cover the loss in question." . . . The trial court did not incorporate this finding into it [sic] findings of fact and conclusions of law and advised the parties that she had misspoken and did not intend to rule as set forth in the Order granting the Motion for Summary Judgment but only intended to hold that Enervest was required to provide insurance as required by contract. This error by the Trial court requires a reversal of the judgment entered.

WPS does not explain where it preserved this challenge, and it did not object when the trial court verbally altered its summary-judgment ruling at the start of trial. See Tex. R. App. P. 33.1(a)(1). In any event, WPS's challenge contains absolutely no analysis or citation to authority. It is thus inadequately briefed, and we overrule it for this reason, as well. See Tex. R. App. P. 38.1(i); Howeth Invs., Inc., 259 S.W.3d at 902.

Conclusion

We affirm the judgment of the trial court.

Tim Taft ⁽¹⁰⁾  

Justice

Panel consists of Justices Keyes, Alcala, and Taft.

1. The breach-of-express-warranty claim under the MSC was not submitted to the jury.

2. The parties' post-judgment motions and responses and the trial court's rulings on WPS's request for amended findings of fact and conclusions of law reflect this same understanding. For example, WPS's motions for JNOV and new trial admitted that EnerVest "has not sued for breaches of alleged implied warranties of any type"; argued that "[i]f EnerVest did not prove its allegation that the valve . . . was defective, it cannot prevail on its alleged breach of contract claim"; and advised that "[w]hile there has been no allegation of breach of an implied warranty, the analysis [of having to prove defect at time of delivery] is still persuasive." It was not until its later request for amended findings of fact and conclusions of law that WPS first asserted that EnerVest's claim for breach of the Rental Agreement must have been tried to the court, rather than to the jury, because Jury Question No. 1 was not "a finding of an alleged 'breach'" by WPS: WPS thus requested findings on the missing breach-of-contract elements and a conclusion of law that the "trial court's conclusion that there was an actionable breach of the Rental Agreement is based on the jury's answer to Question No. 1 . . . ." See Tex. R. Civ. P. 299. The trial court rejected WPS's former request as "subject of the jury trial" and its latter request as "not subject to conclusion of law," again indicating that the trial court understood that its charge presented a breach-of-contract claim to the jury.

3. The proposed questions and instructions were:

a. "Was the cause of the . . . fire internal to the Compressor package as furnished by WPS or to one of its components furnished by WPS?"

b. "Was the cause of the . . . fire the result of a deficiency or defect internal to the Compressor package as furnished by WPS or to one of its components furnished by WPS?"

c. "You are instructed that a deficiency or defect internal to the Compressor package as furnished by WPS or to one of its components furnished by WPS includes, but is not limited to, wear and tear, metal fatigue, mechanical or electrical breakdown or failure, inherent vice, latent defect, gradual deterioration, corrosion, rust, or dampness of atmosphere." (The instruction was apparently offered in conjunction with proposed question b., above, and tracked exclusionary language in the policy that EnerVest had purchased.)

4.

Although Jury Question No. 1 did not follow the usual broad-form submission for a contract's breach (see Tex. Pattern Jury Charge Contracts 101.2), WPS does not complain in its opening brief on appeal that the jury's answer to this question (1) cannot support judgment on EnerVest's breach-of-contract claim for this reason; (2) failed to present all breach-of-contract elements that were contested; (3) was erroneous for not having been in broad form generally; or (4) could not support judgment because the question was not necessarily referable to a breach-of-contract claim, resulting in that claim's waiver. In a few sentences of its reply brief, WPS asserts without citation to authority that "in the absence of EnerVest pointing out any other contractual obligations which were breached the only logical conclusion is that the failure of the needle valve was, depending upon the cause, a breach of the implied warranty of fitness," so that "this was in fact, at least in part, a suit for breach of the implied warranty of fitness"; also, new appellate counsel for WPS filed a post-argument response that briefly raised some of the arguments noted above. However, we will not consider new issues raised in such belated briefing. Additionally, at trial, WPS did not (1) object that the question omitted essential elements or seek findings of fact on same before judgment (see Tex. R. Civ. P. 279) or (2) raise any of the above complaints in its motions for JNOV or new trial.

5. In any event, as discussed further below, there was legally and factually sufficient evidence that the defect found by the jury was inherent in the valve and that the valve's break did not result from vibration caused by EnerVest's allegedly improper installation.

6. Gary Killingsworth, WPS's operations manager

, testified that although WPS's lead field technician, James Courville, had "questioned" the installation, he "didn't make a noise about it" and indicated to Killingsworth that "the unit ran smooth" when questioned about vibration. Killingsworth testified that Courville "should have called me and I should have gotten more involved in it." WPS's president, Seth Williamson, concurred that if WPS's mechanic believed that there was an installation problem, he should have told Killingsworth. Courville confirmed that he believed that the skids' not being mounted, and the cooler's overhanging the structure, were improper, but could not recall having told anyone about this deficiency, nor was he concerned enough to have told anyone at WPS.

7. To the extent that vibration could have caused the valve to break (WPS's theory), there was evidence that the lower part of the WPS compressor's skids were not filled with concrete, whereas skids of that size usually were concrete-filled. Killingsworth indicated that WPS's general procedure was to fill the pedestals with concrete "to increase the mass under the engine and compressor to . . . absorb the frequencies of the engine and compressor." It was WPS that designed or put together the "compressor package; engine, compressor, and . . . the skid."

8.

WPS describes these as factual-sufficiency challenges to the trial court's findings, but they are instead purely legal arguments.

9. Jury Question No. 3 asked whether WPS's compressor package failed to meet the 95% uptime guarantee and instructed that one exception to WPS's accountability for the compressor's down time would be for various acts of EnerVest, including any error of Enervest's resulting in operating conditions outside normal parameters. The jury answered, "No."

10. The Honorable Tim Taft, who retired from the First Court of Appeals effective June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on December 16, 2008.