Background
Jefftey and Cassandra Robert purchased property from a trust represented by Terry L. Gipson and hired Couto Homes, Inc. to build their home. A dispute arose after the water well was installed in a location that differed from Couto’s submitted site plan. Gipson contended the governing documents required exact compliance with the approved plan and also claimed the home was not completed within the required one-year period. Couto maintained that the well complied with the placement diagram included with the transaction documents and that construction delays resulted from Gipson’s objections.
Couto sued for declarations concerning the purported homeowners’ association and architectural review committee, the well placement, and fines and liens imposed against the property. The trial court granted partial summary judgment declaring that the HOA and committee had never legally existed, that the deed restrictions were not properly recorded to run with the land, and that the fines and liens were unenforceable. After trial, the jury found that the well’s location complied with the contract and that Couto did not fail to satisfy the one-year completion requirement. The final judgment incorporated those rulings and awarded Couto $211,780 in attorney’s fees and $5,870.21 in costs. The opinion’s formal caption names the trust as the “Terry L. Gibson Irrevocable Trust,” although the body refers to the “Terry L. Gipson Revocable Trust.”
The Court’s Holding
The court of appeals affirmed. It held that Gipson failed to preserve her objections to the jury instructions concerning material breach and good faith and fair dealing. Although she had objected in a pretrial brief to an earlier proposed charge, she did not obtain a ruling and expressly stated that she had no objections when the trial court requested formal objections to the final charge. Raising the issue later in a motion for new trial was untimely.
The court also held that Gipson failed to preserve her legal-sufficiency challenge to the jury’s finding on the water well’s placement because her motion for new trial did not present that specific argument. The court therefore did not decide whether the placement evidence established breach as a matter of law. As to timely completion, the court found legally sufficient evidence supporting the jury’s determination that Couto did not materially breach the contract, including testimony that the interior was completed within one year and that Gipson’s disputes caused the exterior-work delay. Counsel’s opening statement acknowledging delayed exterior completion was not evidence or a binding judicial admission. Because Gipson offered no independent challenge to the attorney’s-fee award, the court affirmed that award as well.
Key Takeaways
- A party must timely and specifically object to the final jury charge and obtain a ruling; objections to an earlier proposal or in a motion for new trial do not preserve charge error.
- The court did not reach the merits of Gipson’s legal-sufficiency challenge concerning the well’s placement because that challenge was not preserved.
- Opening statements are not evidence, and counsel’s statement about delayed exterior work did not establish a binding judicial admission.
Why It Matters
The decision underscores that Texas appellate review depends on precise preservation in the trial court. Even when a party previously briefs objections, counsel must renew or secure rulings on the operative jury charge and must raise specific sufficiency complaints through an authorized preservation method.
The opinion also illustrates that appellate courts measure sufficiency against the charge actually submitted when charge objections are not preserved. Here, evidence attributing the completion delay to Gipson’s conduct permitted the jury to find no material breach under that charge.