Certified Value, Inc. D/B/A Kidsteam and John Hampton v. Infinite Play Co. ( 2021 )

NUMBER 13-18-00550-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CERTIFIED VALUE, INC. D/B/A KIDSTEAM
AND JOHN HAMPTON, Appellants,
v.
INFINITE PLAY CO., Appellee.
On appeal from the 105th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes1
Memorandum Opinion by Justice Longoria
1 The Honorable Gregory T. Perkes, former Justice of this Court, was a member of the panel at the
time this appeal was orally argued but did not participate in this decision because his term of office expired
on December 31, 2020.
Appellee Infinite Play Co. (Infinite Play) contracted with appellants Certified Value,
Inc. d/b/a Kidsteam (Certified Value) and its sole owner and operator, John Hampton, to
construct and install indoor play equipment for appellee’s children’s play center in Corpus
Christi, Texas. Following multiple alleged complications with the installation process and
an unsatisfactory completion, appellee filed suit against appellants, claiming fraudulent
inducement, breach of contract, breach of express and implied warranties, violations of
the Deceptive Trade Practices Act (DTPA), negligent misrepresentation or negligent
omissions, and seeking exemplary damages and attorney’s fees. Appellants filed a
counterclaim and partial no evidence and traditional motions for summary judgment, the
latter of which were denied by the trial court. At trial, following the denial of appellants’
motion for directed verdict, a jury found in favor of appellee, and appellants’ ensuing
motion for judgment notwithstanding the verdict (JNOV) was denied.
By five issues, which we have reorganized and renumbered, appellants assert:
(1) the trial court erred in denying their no-evidence and traditional summary judgment
motions; (2) the trial court erred in denying their motions for directed verdict and JNOV;
(3)–(4) the trial court abused its discretion in failing to submit a predicate jury instruction
on the requirement of a written agreement in a fraudulent inducement claim and including
an instruction on a cause of action not pleaded; and (5) the trial court abused its discretion
in permitting appellee’s expert witness to testify. We affirm.
I. BACKGROUND
On May 10, 2016, appellee filed suit against appellants. Appellee principally
alleged appellants failed to provide a play center that met appropriate safety standards
as they represented that they would. Appellants filed their original answer on June 20,
2
2016, and an original counterclaim on May 18, 2017, asserting appellee had:
(1) breached their contract by bringing a suit asserting claims without basis and which it
had waived pursuant to the express terms of the written agreement; (2) unlawfully copied
and disseminated appellants’ design renderings in violation of copyright laws; and
(3) misappropriated trade secrets in its use and disclosure of renderings. Appellants
sought damages for unjust enrichment, as well as exemplary damages and attorney’s
fees.
On February 1, 2018, appellants filed partial no-evidence and traditional motions
for summary judgment arguing: (1) appellee’s DTPA claim failed because appellee had
produced no evidence of its “consumer” status; (2) appellee’s fraud and negligent
misrepresentation claims failed because there was no evidence of justifiable reliance or
a written contract, and appellee’s independent investigation negated reliance; and
(3) appellee’s breach of contract claim failed because there was no evidence of a written
contract. The trial court denied appellants’ motions, and the case proceeded to trial.
A. Trial
1. Tiffany Ybarra
Tiffany Ybarra is the sole owner of Infinite Play, which operated an indoor
children’s play center in Corpus Christi, Texas from 2015 to 2017. Ybarra testified she
created Infinite Play in early 2015 after seeing a need for children-based entertainment in
the Corpus Christi area. Ybarra conceded she had no prior experience operating an
entertainment or child-centered facility and stated she hired a friend and former co-
worker, Celeste Rittgers, to assist her. Ybarra instructed Rittgers to “look for quality, safe
playground equipment” for the business. According to Ybarra, Rittgers found Certified
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Value’s website, and based on the website, the two women believed Certified Value to
be the manufacturer of safe, indoor play spaces. At trial, Ybarra read aloud various
portions of Certified Value’s website regarding its’ membership affiliations, 2 compliance
with ASTM International (ASTM) safety standards, 3 and design, manufacturing, and
installation warranties. 4
Ybarra additionally read several e-mails into the record. In early May 2015, Rittgers
and Hampton began exchanging e-mails regarding appellants’ services. Ybarra and
Rittgers traveled to Dallas, Texas to meet with Hampton and tour Certified Value’s facility
on May 29, 2015. Ybarra testified that, ultimately, as a result of repeated assurances by
Hampton, appellee and appellants entered into an oral agreement for the purchase and
complete installation of an indoor play center for $119,762.03. On June 8, 2015, Rittgers
confirmed via e-mail that the two companies were “[g]etting closer” to coming to an
agreement regarding the finalized design. On June 10, 2015, Ybarra received a pro rata
invoice via e-mail from Hampton. While a document titled “Terms and Conditions of Sale”
was attached to the invoice, and the document contained multiple blanks throughout
indicating a purchaser’s signature was required, Ybarra testified she never read or signed
2Certified Value’s website stated it was a member of the International Association for Amusement
Parks and Attractions (IAAPA) and ASTM.
3 “[ASTM] is one of the largest voluntary standards developing organizations in the world,”
responsible for “develop[ing] technical documents that are the basis of manufacturing, management,
procurement, codes and regulations for dozens of industry sectors.” Frequently Asked Questions, ASTM
INT’L, https://www.astm.org/ABOUT/faqs.html (last visited Jan. 29, 2021). Certified Value’s website stated,
in part, that it “constantly works to enhance [its] indoor playground material and component specifications
so that they meet or exceed applicable U.S. ASTM F918 and EN71 European standards.”
4 The website stated Certified Value “designs, manufactures, and installs turnkey solutions that
promote [the] health and overall wellbeing of children,” and its products were “made in North America.” The
website also provided the following warranty: “[We are] so confident that our quality meets or exceeds
industry standards that we will match any competitor’s written warranty and extend that warranty by one
year.”
4
the terms and conditions nor was she ever asked to do so by Hampton. On June 15,
2015, Ybarra wired $60,000.00 to Certified Value. Hampton sent Ybarra another invoice
on June 22, 2015, confirming receipt of the wire transfer; the invoice also contained
attached terms and conditions. Ybarra submitted four requests for design modifications
after payment; the last request was made on October 9, 2015, the day before the
projected start of installation. 5 Installation was completed in November 2015. 6 Ybarra
testified she was never billed for any modification requests.
Ybarra said she initially believed she “had the safest playground you could possibly
have” for about six months until “things [began] happening.” Ybarra testified she began
to notice construction defects and problems indicating substandard materials had been
used in the construction of the play center. Ybarra said, for example, she observed holes
in the netting, exposed metal and fitting bolts, landings breaking, train tracks sliding, and
cracks at the bottom of the slide. Ybarra testified that Hampton failed to respond to
Ybarra’s repeated requests for repairs or assistance. Although Hampton initially made
assurances via e-mail that any missing equipment or materials requiring replacement
would be addressed, Hampton ceased communicating by March 2016. 7 In an alternative
attempt to rectify the play center deficiencies, Ybarra contacted Certified Value’s
competitor, IPlayCo, but IPlayCo refused to “take on” any play center made by Certified
5 It is unclear from the record when Ybarra approved the final design for the play center. The
invoices on June 15 and June 22 stated that a “[f]inal revision to toddler area and design book will replace
this design” and an “[e]xtra kidsteam car [was] to be provided in [the] final design.”
6 Although appellee held a grand opening on November 11, 2015, Ybarra disputes that the play
center was completed at the time because several components were still missing or had not been installed,
such as “[a]ctivity panels and some additional toy blocks and other items on the floor that were toys that go
in the toddler area.”
7In an e-mail dated March 31, 2016, from Ybarra to Hampton, Ybarra complained of incomplete
and missing equipment, including a balance beam, aluminum train cars, and roofing for a playscape. No
response from Hampton is indicated in the record.
5
Value. IPlayCo proposed the creation of new play center in the amount of $238,604.00.
Ybarra stated that, based on estimations she received, Certified Value’s play center was
worth $15,000.00 in salvage value before commission or shipping costs.
2. Celeste Rittgers
Rittgers testified she previously worked performing “data entry” at a company
owned by Ybarra’s husband. Rittgers lost her job after the company dissolved. Rittgers
testified that around January 2015, Ybarra reached out to her with a “business she was
thinking about and wanted to know if [Rittgers] could help her.” Rittgers said the two began
conducting research, “trying to figure out what we were going to do to start the company[,]
the things that we needed.” They settled on an indoor play area.
Rittgers testified she could “remember distinctly looking at three different websites”
for potential indoor play equipment system manufacturers. Of the three companies
Rittgers contacted, only appellants responded. In May 2015, contact between Rittgers
and Hampton was “almost daily.” By the May trip to Dallas, over twenty e-mails had been
exchanged and “at least ten to [fifteen] phone calls.” Rittgers testified, “[Hampton] sold
his equipment. He sold himself. He was a very good salesman. [H]e gave—gave us no
reason to believe that everything he said wasn’t true.” According to Rittgers, Hampton
reinforced the information contained on Certified Value’s website, said “[e]verything was
manufactured by them,” promised to “work with us on as many designs” as needed, and
boasted about meeting ASTM standards—although she and Ybarra did not know what
ASTM standards were. Rittgers testified she and Ybarra left the meeting “pumped and
excited to get a design picked.”
6
From May to September 2015, 8 Rittgers was the sole point of contact on behalf of
appellee. Rittgers testified that problems with appellants arose prior to construction during
the shipment of materials when appellants began transporting equipment by piecemeal,
rather than the agreed upon single shipment, creating storage complications for appellee.
Rittgers asserted that, contrary to appellants’ promises, the installation process was
disorganized and did not result in a “turnkey” play center.
3. Melanie Short
Appellee’s expert, Melanie Short, testified she was asked to “perform a playground
safety audit of the soft contained playground equipment.” At the time that Short prepared
the audit, she was a certified playground safety inspector, but she has since let her license
lapse. Short explained her certification was through the National Parks and Recreation
Association which required that she attend a “three-day intensive class session,”
reviewing “the outdoor playground ASTM standard and all the associated ones,” followed
by a pass/fail exam to obtain certification. Short testified she remains a member of
ASTM’s Building Enclosure and Playground Safety sections.
According to Short, when conducting an audit, the auditor will review the entire
facility for four levels of concern, ranging from “hazard level one,” which indicates an
“imminent threat” of “permanent disability basically or death,” to level four, which “is
basically deferred maintenance.” Short testified she found thirty level one and level two
violations following her review of the play center built by appellants. Short maintained the
violations had nothing to do with maintenance concerns, but rather, reflected installation
8 Rittgers ended her employment with appellee in November 2015 after she became pregnant. Her
title changed three times in the period she worked for appellee. Rittgers initially held the title “business
manager,” which was later changed to “operations coordinator.” At the time she left her position, Rittgers
was the “social media administrator and events coordinator.”
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and design defects. For example, Short testified there were multiple areas that lacked
safety enclosures, allowing for children to get behind or underneath equipment. Short
additionally testified that “anyone representing compliance with [ASTM] F1918,” was
required to, pursuant to ASTM rules, “keep all the essential records necessary to
document any claim that the requirements have been met and that includes those things
like fire testing and—and such that require certifications.” Short stated that although she
did receive some certifications from appellants, she was “unable to match those with
some of the materials” used in the play center.
Short summarily opined: “[T]he soft contained playground equipment provided by
and installed at [appellee’s business] by [appellants] contained numerous defects and
hazards that violated ASTM F1918-12, the standard safety performance specification for
soft contained play equipment, as presented in my audit.” Short concluded that, given the
number of high-level hazards identified, the “majority” of the play area required a redesign
and a reinstallation to meet ASTM compliance. On cross-examination, Short acquiesced
that there are no regulations in Texas that require ASTM certifications on play equipment.
4. John Hampton
According to Hampton, he began Certified Value in 2001 primarily as a consulting
business, but it “morphed” into a manufacturing company between 2008 and 2010,
beginning with Kidsteam, an electric trackless train line. In 2010, Certified Value began
manufacturing play centers, marketed towards family entertainment centers, churches,
and health clubs. Hampton testified the company has completed between 150 and 200
play centers nationwide and internationally since 2010. Hampton testified that, in addition
to manufacturing play systems and trains, the company also acts as “a wholesaler on
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inflatables if that’s what the customer would like in addition to our other products that we
sell to them.”
When questioned regarding the sourcing of products used for play center
installations, Hampton testified that Certified Value uses “one of the largest North
American rotomolding plastics manufacturers” based out of Canada for its plastic
products, and China-based suppliers provide steel and all play netting. In 2015, at the
time he contracted with appellee, Hampton testified Certified Value had a warehouse in
Dallas, where they also did “light fabrication,” and a “factory in China that [appellants]
control[ed].” The factory was responsible for “stamping, welding, machining, [and]
assembly work.” All “in-house designers” were also based out of “the China office.”
Hampton maintained he was able to keep costs low by contracting out design and
installation work and purchasing materials in bulk.
When asked whether Certified Value’s website’s statement “North American
made” was misleading, Hampton testified that this statement was intended to convey that
“the bulk of the cost associated with the manufacturing of this product and the installation
of this product is done by North American people.” Hampton admitted that, despite his
website indicating in 2015 that he was a member of ASTM and the International
Association for Amusement Parks and Attractions (IAAPA), his membership had lapsed
for failure to pay dues. Hampton disagreed that the continued use of these logos on his
website was to “convince people that [he] w[as] something that [he] w[as] not.” Moreover,
Hampton stated he believed ASTM standards had been followed when applicable in the
design and installation of appellee’s play center.
9
Hampton attributed the project start date delays to appellee, stating that appellee’s
final request for alterations to the design, which partly concerned alterations to the
center’s ceiling, occurred on the last day materials were scheduled to be transported to
appellee’s facility. “We already had the truck loaded and—and based on what the e-mail
said[,] [I] became very concerned,” said Hampton, who declined to “send the team down
there” because they were “not going to be able to begin erecting the system or doing
anything because now there’s all these constraints on the ceiling.” Hampton said it was
then that he made the “decision to personally go down to the site” to unload the materials
himself, conduct necessary measurements, and “regenerate” the control design
documents. Hampton testified the company made no profit on this project. Hampton
further stated that, contrary to Ybarra’s claims, he had responded to her complaints after
the project was completed and believed all outstanding issues had been resolved.
Hampton further disputed that there had been any oral contract between the
parties. Hampton testified that he and appellee executed a written contract—in the form
of a “Terms and Conditions of Sale” document attached to an invoice—which explicitly
disclaimed the oral representations appellee asserted at trial he had made. 9 Hampton
said Ybarra signed the terms and conditions and returned it to him via mail, and the
document had been put in a file at his facility, but it was inadvertently “thrown out
sometime before this lawsuit even started.”
9 The terms and conditions included a disclaimer of “any reliance on any representations,
documents, statements, acts or omissions made by or through any representative, affiliate, agent, or
principal of Certified Value . . . .” All modifications to the order were also subject to additional fees under
the terms and conditions. Moreover, while the terms and conditions included provisions citing to the ASTM,
the document only stated that Certified Value recommends purchasing items “to comply with ASTM” but
indicated that “such expense is not contemplated nor included in the Order.”
10
When asked about his countersuit, Hampton stated he sought to be “reimbursed
for added expenses associated with the project.” Hampton maintained he never
previously requested those expenses from appellee and had never requested similar
expenses from previous clients, but he thought, “Well, we might as well try to get some
of these expenses back,” after appellee filed suit. Hampton also sought to hold appellee
accountable for sending intellectual property to his competitor, IPlayCo. “[Appellee] sent
a document that basically can be reverse[] engineered from that, [to] get an understanding
of our margins and our cost structure, and from that[,] since we compete in a lot of the
same markets currently, they can actually effectively compete more efficiently and
effectively on each bid,” explained Hampton.
On cross-examination, Hampton testified that he has an educational background
in finance and became familiar with worldwide distribution channels when working for a
steel manufacturer. Hampton conceded he otherwise had no special training or
certifications for the construction or the development of a play center, and he lacked any
licensing, permitting, or experience with architectural engineers with respect to play
centers.
5. Jeffrey Dillard & Gregory Kazel
Two former contractors for appellants also testified. Jeffrey Dillard testified he had
built play centers for appellants since 2012 in connection with his business, Handy Work
Services. Dillard testified he was contacted regarding appellee’s project in September
2015 and traveled to Corpus Christi in October 2015 to assist in the installation. Dillard
testified he was immediately informed of a protruding duct system that required a change
of the play center’s height configurations. Dillard testified they “had to take all the pieces
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out and start cutting [steel]” on-site. Dillard installed “one-third to two-thirds” of the play
center but was unable to complete installation, citing a medical emergency involving his
wife that required him to take leave. On cross-examination, Dillard confirmed he was not
a forensic architect, certified playground safety inspector, or expert on ASTM standards.
Dillard testified he relied on Hampton to make sure the projects were in compliance with
any applicable standards.
George Kazel, owner of GW Kazel Kid Systems, testified he took over installation
after Dillard departed. Kazel stated that, in the last ten years, he has constructed
“probably 150” play centers for appellants, and at least half of the systems had been
“constructed internationally.” Kazel, a member of the American Society of Civil Engineers,
testified he also holds an amusement ride inspector license in Pennsylvania.
Kazel testified he was in Corpus Christi for “around a week” to complete the play
center, and he arrived after the main steel frame had been installed. Kazel assisted in the
installation of the double helix slide, train, and ball fountain. According to Kazel, it was not
uncommon for appellants to receive requests from a client for repairs or modifications
following an installation. “[Clients] would typically contact [Hampton] and then [Hampton]
would contact either myself or . . . some other installation staff who would then go out and
make the repair or do the—do the work that was needed,” testified Kazel. Kazel
maintained Certified Value had “never” refused a repair request from a customer in the
ten years he had worked with appellants.
12
B. Judgment
Appellants moved for a directed verdict on appellee’s claims, 10 which the trial court
denied. Appellee waived its causes of action for negligence, negligent hiring, and
negligent misrepresentation, and the jury found in favor of appellee for its remaining
claims for breach of contract, fraud, breach of warranty, and violations of the DTPA.
On June 24, 2018, the trial court entered a final judgment in favor of appellee in
the amount of $119,762.03, 11 plus equitable pre-judgment interest, and reasonable
attorney’s fees to date in the amount of $325,000.00, plus attorney’s fees of $50,000.00
for any unsuccessful appeal by appellants to the court of appeals; and $25,000.00 for any
unsuccessful appeal by appellants to the Supreme Court of Texas.
On July 12, 2018, appellants, presenting substantially similar arguments as in their
motion for directed verdict, filed a motion for JNOV, which the trial court denied. This
appeal followed.
II. SUMMARY JUDGMENT
By their first issue, appellants contend that the trial court erred when it denied their
partial no-evidence and traditional motions for summary judgment. However, the denial
of a motion for summary judgment is not reviewable after a trial on the merits. Schack v.
Prop. Owners Ass’n of Sunset Bay, 555 S.W.3d 339, 353–54 (Tex. App.—Corpus Christi–
Edinburg 2018, pet. denied) (“Because the trial court’s denial of the motion for summary
judgment was followed by a trial on the merits, we cannot review the trial court’s denial of
10 In their motion for directed verdict, appellants argued (1) appellee was not a consumer under the
DTPA and therefore could not recover under its DTPA claim; (2) appellee’s fraudulent inducement claim
fails because there was no executed contract; (3) appellee produced no evidence of reliance and negated
reliance in its DTPA, fraud, and negligent misrepresentation claims by undertaking an independent
investigation; and (4) appellee presented no evidence that appellants breached its warranty.
11 Exemplary damages were not awarded.
13
summary judgment.”); Hines v. Comm’n for Lawyer Discipline, 28 S.W.3d 697, 700 (Tex.
App.—Corpus Christi–Edinburg 2000, no pet.) (concluding that we are without jurisdiction
to review a trial court’s denial of a motion for summary judgment following a trial on the
merits). Here, after the trial court denied appellants’ motions for summary judgment, it
held a trial on the merits. Accordingly, we are unable to review the trial court’s denial. See
Schack, 555 S.W.3d at 353–54; see also Garcia v. Perez, No. 13-17-00673-CV, 2019 WL
2221674, at *3 (Tex. App.—Corpus Christi–Edinburg May 23, 2019, no pet.) (mem. op.).
We overrule appellants’ first issue.
III. DIRECTED VERDICT & JNOV
By issue two, appellants argue the trial court erred in failing to grant its motions for
directed verdict and JNOV.
A. Standard of Review & Applicable Law
Upon a party’s motion and reasonable notice, a trial court may disregard a jury
verdict and render a JNOV if a directed verdict would have been proper. See TEX. R. CIV.
P. 301; Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An
instructed verdict for a defendant is proper when (1) a plaintiff fails to present evidence
raising a fact issue essential to the plaintiff’s right to recover, or (2) the plaintiff admits or
the evidence conclusively establishes a fact that establishes the movant’s right to
judgment as a matter of law. Edwards v. Chevrolet, 605 S.W.3d 219, 222 (Tex. App.—
Fort Worth 2020, no pet.) (citing Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29
S.W.3d 74, 77 (Tex. 2000); McCullough v. Scarbrough, Medlin & Assocs., Inc., 435
S.W.3d 871, 884–85 (Tex. App.—Dallas 2014, pet. denied)). Edwards, 605 S.W.3d at
222.
14
We review a trial court’s denial of a directed verdict or JNOV under a no-evidence
standard, examining whether legally sufficient evidence supports the jury’s findings.
Gharda USA, 464 S.W.3d at 347. We must “‘credit evidence favoring the jury verdict if
reasonable jurors could, and disregard contrary evidence unless reasonable jurors could
not,’” and we will uphold the jury’s finding if more than a scintilla of competent evidence
supports it. Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009)
(quoting Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007)); see
Gharda USA, 464 S.W.3d at 347; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005) (“The 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.”).
At trial, appellants moved for directed verdict and JNOV on appellee’s DTPA,
fraud, breach of contract, and breach of warranty claims. 12
B. Breach of Warranty
With respect to their breach of warranty argument, appellants principally assert
that, assuming arguendo that the statements on the Certified Value website created a
warranty, appellee cannot recover “because it never requested that [appellants] match it.”
Appellee submitted the following breach of warranty theories to the jury: (1) failure
to comply with an express warranty of “any affirmation of fact or promise made by
[appellants]”; (2) failure to furnish or select goods suitable for a particular purpose; and
(3) failure to perform services in a good and workmanlike manner. See Nghiem v. Sajib,
567 S.W.3d 718, 724 n.33 (Tex. 2019) (recognizing the implied warranties in Texas,
12Appellants additionally argued in their motions that the evidence did not establish that Hampton
received a direct, personal benefit from any purported perpetration of fraud; thus, he cannot be held liable
under § 21.223 of the Texas Business Organizations Code. See TEX. BUS. & COM. CODE ANN. § 21.223.
Appellants present no such independent argument on appeal.
15
which include: the implied warranty of good and workmanlike construction, the implied
warranty of fitness for a particular purpose, and the implied warranty of workmanlike
repairs of tangible goods or property); Lester v. Logan, 893 S.W.2d 570, 574 (Tex. App.—
Corpus Christi–Edinburg 1994), writ denied, 907 S.W.2d 452 (Tex. 1995) (per curiam)
(providing that implied warranty of fitness for a particular purpose applies “where a seller,
at the time of contracting, has reason to know any particular purpose for which the goods
are required and that the buyer is relying on the seller’s skill or judgment to select or
furnish suitable goods”). On appeal, appellants only challenge one element of appellee’s
breach of express warranty claim and provide no mention of appellee’s implied warranty
claims.
Because appellee only needs to prevail on one of its three submitted breach of
warranty theories to sustain the judgment, and liability under either implied warranty
theory remains unchallenged, we need not address the correctness of the trial court’s
conclusion on appellee’s express warranty theory. See St. John Missionary Baptist
Church v. Flakes, 595 S.W.3d 211, 213 (Tex. 2020) (per curiam) (providing that if the
appellant fails to challenge all possible grounds, the reviewing court must accept the
validity of the unchallenged grounds and affirm the adverse ruling); U.S. Lawns, Inc. v.
Castillo, 347 S.W.3d 844, 846 (Tex. App.—Corpus Christi–Edinburg 2011, pet. denied);
see also Perez-Montes v. Live Oak Constr., Inc., No. 13-13-00674-CV, 2015 WL
2352423, at *2 (Tex. App.—Corpus Christi–Edinburg May 14, 2015, no pet.) (mem. op.)
(“If an independent ground fully supports the complained-of ruling or judgment, but the
appellant assigns no error to that independent ground, then (1) we must accept the validity
of that unchallenged independent ground . . . .”). Similarly, we need not address
16
appellants’ remaining challenges to appellee’s claims for DTPA, fraud, or breach of
contract where judgment in favor of appellee survives on appellee’s breach of warranty
claim alone. See TEX. R. APP. P. 47.4; Flakes, 595 S.W.3d at 213; S.W. ex rel. A.W. v.
Arlington Indep. Sch. Dist., 435 S.W.3d 414, 419 (Tex. App.—Fort Worth 2014, no pet.)
(“[A]ny error in the grounds challenged on appeal is harmless because the unchallenged
independent ground fully supports the complained-of ruling or judgment.”).
Thus, we overrule appellants’ second issue.
IV. JURY CHARGE
By issues three and four, appellants argue the trial court abused its discretion in
(1) failing to include a specific jury question on “the existence of a signed written
agreement between the parties . . . as a predicate to the jury question for fraudulent
inducement” and (2) including fraud as a cause of action in the jury charge when the
pleadings only alleged fraudulent inducement.
The trial court has considerable discretion when determining proper jury
instructions. Gunn v. McCoy, 554 S.W.3d 645, 675 (Tex. 2018). We review a trial court’s
decision to submit or refuse a particular instruction under an abuse of discretion standard
of review. Id. (citing Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012)). An instruction is
proper if it assists the jury, accurately states the law, and finds support in the pleadings
and evidence. Id. (citing Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d
851, 855–56 (Tex. 2009)). We will not reverse a judgment for a charge error unless that
error was harmful because it “probably caused the rendition of an improper judgment.”
See TEX. R. APP. P. 44.1(a)(1); Thota, 366 S.W.3d at 687. “Charge error is generally
considered harmful if it relates to a contested, critical issue.” Hawley, 284 S.W.3d at 856;
17
see Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001) (“An improper
instruction is especially likely to cause an unfair trial when the trial is contested and the
evidence sharply conflicting.”).
A. Predicate Question
Here, appellants objected to the inclusion of question seven in the jury charge,
which stated in part: “Did any [sic] Certified Value or John Hampton commit fraud against
Infinite Play?” Appellants argue the trial court should have included a predicate question
regarding the requirement of a signed, written agreement because a fraudulent
inducement claim fails absent the existence of an executed written contract. 13
Fraudulent inducement is a particular class of fraud that arises only in the context
of a contract and requires the existence of a contract as part of its proof. Anderson v.
Durant, 550 S.W.3d 605, 614 (Tex. 2018); Haase v. Glazner, 62 S.W.3d 795, 798 (Tex.
2001) (“Without a binding agreement, there is no detrimental reliance, and thus no
fraudulent inducement claim.”); Formosa Plastics Corp. USA v. Presidio Eng’rs &
Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998) (“As a rule, a party is not bound by a
contract procured by fraud.”). Like a broader common-law fraud claim, a fraudulent-
inducement claim requires proof that: (1) the defendant made a material
misrepresentation; (2) the defendant knew at the time that the representation was false
or lacked knowledge of its truth; (3) the defendant intended that the plaintiff should rely
or act on the misrepresentation; (4) the plaintiff relied on the misrepresentation; and
(5) the plaintiff’s reliance on the misrepresentation caused injury. Int’l Bus. Machines
13 It is unclear what specific instruction appellants requested. On appeal, appellants refer us to the
reporter’s record, wherein appellants’ reference their proposed jury charge, which spans sixty-seven pages
and incorporates thirty-six questions. Appellants do not specify, either at the trial court or on appeal, which
question from its proposed charge it sought to precede question seven of the charge as finally submitted.
18
Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 228 (Tex. 2019) (citing Anderson, 550
S.W.3d at 614).
We observe that the Texas Supreme Court has already examined whether a
fraudulent inducement claim can survive when evidence at trial indicated that the binding
agreement at-issue “was never reduced to writing” and “the terms of the deal [we]re
disputed.” Anderson, 550 S.W.3d at 610. The Court answered this question in the
affirmative, noting that the fraudulent-inducement jury questions incorporated the
necessary elements for recovery—the elements of an enforceable contract—and holding
that the existence of an enforceable contract there, albeit oral, was supported by legally
sufficient evidence. Id. at 624–25. Although “without a binding agreement, there is no
detrimental reliance, and thus no fraudulent inducement claim,” the binding agreement
need not be written. See id. at 617. Thus, we are unpersuaded by appellants’ assertion
that appellee’s fraudulent inducement claim fails without an instruction requiring evidence
of a written contract.
Accordingly, the trial court did not abuse its discretion in refusing the incorporation
of such instruction. See Gunn, 554 S.W.3d at 675 (providing that the instruction is proper
if it, in part, accurately states the law). We overrule appellants’ third issue.
B. Waiver
In their fourth issue, appellants object to the court’s inclusion of an instruction on
appellee’s fraud claim, which it alleges did not conform with the pleadings because
appellee “did not plead fraud, but only fraudulent inducement.”
To preserve error in the jury charge, the complaining party must timely and plainly
make the trial court aware of the complaint and obtain a ruling. See TEX. R. CIV. P. 274
19
(requiring a party objecting to a charge to point out distinctly the objectionable matter and
the grounds of the objection); see also Thota, 366 S.W.3d at 689; Brannan Paving GP,
LLC v. Pavement Markings, Inc., 446 S.W.3d 14, 19 (Tex. App.—Corpus Christi–
Edinburg 2013, pet. denied). Moreover, to preserve error for appeal, the complaining
party’s argument on appeal must comport with its objection in the trial court. Thota, 366
S.W.3d at 689; see TEX. R. APP. P. 33.1. Appellants made no such objection—specific or
otherwise—at the charge conference on the basis argued on appeal. 14 Therefore,
appellants did not preserve this issue for our review. See TEX. R. APP. P. 33.1; TEX. R.
CIV. P. 274. Appellants’ fourth issue is overruled.
V. EXPERT TESTIMONY
By appellants’ fifth issue, appellants argue the trial court erred in admitting the
testimony of appellee’s expert witness because she was “not qualified and her testimony
was not reliable under Robinson.” See E.I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 556 (Tex. 1995).
We review a trial court’s rulings on the admissibility of evidence for an abuse of
discretion, including rulings on the qualification and reliability of expert testimony. Gharda
USA, 464 S.W.3d at 347. Qualified experts may offer opinion testimony if that testimony
is both relevant and based on a reliable foundation. Innovative Block of S. Tex., Ltd. v.
Valley Builders Supply, Inc., 603 S.W.3d 409, 422 (Tex. 2020). Expert opinion testimony
is relevant when it is “sufficiently tied to the facts of the case [so] that it will aid the jury in
resolving a factual dispute.” Id. (quoting Robinson, 923 S.W.2d at 556). Although
14 Appellants cite to two pages in the record wherein the objection was purportedly made, but a
review of the record indicates only a challenge to the denial of appellants’ request for a predicate question
regarding the necessity of a written contract.
20
reviewing courts generally determine the reliability of an expert’s chosen methodology by
applying the Robinson factors, “[w]hether an expert’s testimony is reliable is based on
more than whether the expert’s methodology satisfies the Robinson factors.” Gharda
USA, 464 S.W.3d at 348–49 (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499
(Tex. 2001)). Expert testimony is unreliable “if there is too great an analytical gap between
the data on which the expert relies and the opinion offered.” Id. at 349 (quoting
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904–05 (Tex. 2004)). “Whether an
analytical gap exists is largely determined by comparing the facts the expert relied on, the
facts in the record, and the expert’s ultimate opinion.” Id.Appellants’ brief, however, provides no analysis or application of the Robinson
factors nor does it indicate what analytical gap was present to render the expert’s opinion
unreliable. See Gharda USA, 464 S.W.3d at 348–49; Robinson, 923 S.W.2d at 556.
Appellants instead refer this Court to its trial record filings and trial arguments on this
issue. 15 Appellee asserts appellants have therefore waived this argument, and we agree.
See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the
contention made, with appropriate citations to authorities and to the record.”).
“Existing legal authority applicable to the facts and the questions we are asked to
address must be accurately cited and analyzed.” Goodenberger v. Ellis, 343 S.W.3d 536,
15 Appellants brief states in applicable portion:
For the reasons cited in Defendants’ Objections and Reply to Plaintiff’s Response for
Summary Judgment Evidence, Defendant’s Motion to Exclude[,] and as argued before the
Court, Short’s testimony was not reliable under the Robinson factors. As more described
fully in the aforementioned portions of the record, Ms. Short: (a) admitted she was not an
expert on reliance; (b) admitted she relied upon a subjective standard of care; (c) was not
even certified in the applicable suggested guidelines of ASTM F-1918; (d) did not have all
of the relevant information and (e) reached contradictory conclusions and failed to rule out
other options.
21
539 (Tex. App.—Dallas 2011, pet. denied); see TEX. R. APP. P. 38.1; Schack, 555 S.W.3d
at 354; Armhein v. Bollinger, 593 S.W.3d 398, 401 (Tex. App.—Dallas 2019, pet. denied)
(“The right to appellate review in Texas extends only to complaints made in accordance
with our rules of appellate procedure, which require an appellant to clearly articulate the
issues we will be asked to decide, to make cogent and specific arguments in support of
its position . . .”). “A claim of error on appeal must be argued in the party’s brief; it is
insufficient simply to refer the appellate court to the party’s trial court arguments.” Allen v.
United of Omaha Life Ins. Co., 236 S.W.3d 315, 325 (Tex. App.—Fort Worth 2007, pet.
denied); Guerrero v. Tarrant Cty. Mortician Servs. Co., 977 S.W.2d 829, 832–33 (Tex.
App.—Fort Worth 1998, pet. denied) (“Were we to approve of this tactic, appellate briefs
would be reduced to a simple appellate record reference to a party’s trial court arguments.
Additionally, this would be an open door for parties to circumvent the appellate brief page
limitations.”); see TEX. R. APP. P. 38.1; see also State Farm Lloyds v. Vega, No. 13-16-
00090-CV, 2018 WL 1773304, at *13 (Tex. App.—Corpus Christi–Edinburg Apr. 12, 2018,
no pet.) (mem. op.) (finding issue waived where appellant argued: “For the reasons
outlined in Issues I, II, and III, there is legally insufficient evidence supporting the judgment
on the contract, extra-contractual, and attorney fees claims”); Gonzales v. State Farm
Lloyds, No. 13-05-00730-CV, 2006 WL 2327259, at *3 (Tex. App.—Corpus Christi–
Edinburg Aug. 10, 2006, pet. denied) (mem. op.) (refusing to “incorporate arguments
presented in other matters” and considering only “the contention discussed in in their brief
in support”). Appellants have therefore failed to adequately brief their complaint, and this
issue is waived. See TEX. R. APP. P. 38.1; Ellis, 343 S.W.3d at 539. We overrule
appellants’ fifth issue.
22
VI. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Delivered and filed on the
4th day of February, 2021.
23