law-failure-to-submit-issue-to-jury, jury charge error, failure to object to jury charge, error preservation for
purposes of appeal |
Tex. R. Civ. P. 274 (providing that party objecting to charge must pointout distinctly
the objectionable matter and grounds of objection); Tex. R. App. P. 33.1(providing
that party must make timely objection to preserve error for appellate review).
Robertson's vicarious-liability allegations were not presented to the jury because he failed to request their
submission, and did not offer a properly worded issue to the court. Under Rule 279, the party with the
burden of proof on a ground of recovery is charged with the duty of submitting all of the disputed elements
of his cause of action to the jury. Tex. R. Civ. P. 279; see Cameron County v. Velasquez, 668 S.W.2d 776,
781 (Tex. App.- Corpus Christi 1984, writ ref'd n.r.e.). The Rule also provides that, unless the issue was
conclusively established by the evidence,[13] a party's failure to submit a properly worded issue, or to object
to its omission, results in waiver. Tex. R. Civ. P. 279; Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 676
(Tex. App.- Houston [1st Dist.] 2008, pet. denied).
Robertson v. Barnes (Tex.App.- Houston [14th Dist.] July 30, 2009)(Sullivan)
(home owner, consumer law, DTPA, home in poor condition, stucco problem, seller was not required to
disclose prior water damage because repair was not "structural" which the court construes as referring to
load-bearing)
AFFIRMED: Opinion by Justice Sullivan
Before Justices Brock Yates, Guzman and Sullivan
14-07-00791-CV Chris Robertson v. Joe Barnes and Sandion, Ltd d/b/a Coldwell Banker United, Realtors
Appeal from 280th District Court of Harris County
Trial Court Judge: TONY LINDSAY
Robertson did not submit a properly-worded question, and did not request a jury submission on agency or
respondeat superior, in support of his claim that Odom was vicariously liable for Barnes's misrepresentation
under section 17.46(b), subparts (6) or (7).[14] Therefore, he has waived any complaint about the failure to
submit Odom's vicarious liability to the jury.
Accordingly, we overrule appellant's first and third issues.
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