Affirmed and Memorandum Opinion filed April 4, 2006.

 

 

In The

 

Fourteenth Court of Appeals

_______________

 

NO. 14-04-00549-CV

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ROBERT A. WELLS, SR. and THE WELLS GROUP, INC., Appellants

 

V.

 

BARRY H. WELLS; B. H. WELLS FURNITURE FOR BUSINESS, INC.; BRADFORD T. WELLS; and B.T.W. ENTERPRISES, INC., Appellees

                                                                                                                                                

On Appeal from 152nd District Court

Harris County, Texas

Trial Court Cause No. 02‑03207

                                                                                                                                               

 

M E M O R A N D U M   O P I N I O N

 

Robert A. Wells, Sr. (ARobert@) and The Wells Group, Inc. (the AWells Group@) (collectively, Aappellants@) appeal a judgment rendered in favor of Barry H. Wells (ABarry@), B. H. Wells Furniture For Business, Inc., Bradford T. Wells and B.T.W. Enterprises, Inc. (collectively, Aappellees@) on the grounds that the trial court erroneously entered judgment awarding recovery to Barry where: (1) such relief did not conform to the pleadings; and (2) the jury=s answers present an irreconcilable conflict.  We affirm.

In 1997, the parties entered into a mediation agreement (the AMediation Agreement@) to resolve their disputes incident to the break-up of the family business.  In June 1999, the parties agreed to replace the Mediation Agreement with a reorganization agreement (the AReorganization Agreement@).  As relevant to this appeal, Robert later filed suit against Barry, and Barry filed suit against Robert and the Wells Group.

Appellants= first issue contends that, because appellees= pleadings primarily relied on novation and accord and satisfaction as affirmative defenses to appellants= claim for breach of the Mediation Agreement and pleaded a breach of the Mediation Agreement only in the alternative to those affirmative defenses, there were no pleadings that could support the jury=s responses to questions 1-2 as well as 15-17, finding in Barry=s favor on both his affirmative defenses and his breach of contract claim.  Therefore, appellants contend that the trial court erred in entering judgment for Barry on both.

However, appellants did not object to the wording of any of these jury questions on this basis, and their brief concedes that those jury questions were in accordance with the pleadings.^[1]  Nor did appellants request the trial court to submit either group of questions with a conditioning predicate based on the answers to others.  See Tex. R. Civ. P. 273.  Moreover, appellants do not contend that the judgment fails to conform with the jury=s answers to the questions as submitted.  Under these circumstances, any failure of the judgment to conform to the pleadings resulted from a failure of the jury charge to do so, and was waived by appellants= failure to object to the charge or otherwise give the trial court an opportunity to revise it accordingly.  Therefore, appellants= first issue is overruled.

Appellants= second issue asserts that the trial court erroneously granted relief to Barry because the jury=s respective findings, that appellees were excused from their payment obligations under the Mediation Agreement, but that the Wells Group was not also excused from its payment obligations under that same agreement, constitute an irreconcilable conflict as a matter of law.  Appellants thus claim that if the Reorganization Agreement discharged appellees from their obligations under the Mediation Agreement, it necessarily had the same effect on appellants= obligations thereunder.

However, questions 2 and 6 both contained specific instructions on the meaning of Aexcuse,@ explaining the circumstances in which appellees were excused from compliance with the Mediation Agreement for purposes of these two questions.  By contrast, question 15 did not contain any instruction with regard to the meaning of Aexcuse@ as it applied to appellants.  In addition, the charge instructed the jury: AWhen words are used in this charge in a sense that varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning.@  Under these circumstances, the term Aexcuse@ was not defined to have the same meaning in questions 2 and 6 as in question 15.  Because of this difference in the accompanying instructions, the jury was free to use a different meaning for Aexcuse@ in questions 2 and 6 than in question 15 and then answer those questions accordingly without creating a conflict.  To assure that the jury would answer these questions to produce a symmetric result, appellants need only have requested the same instructions be given for each.  Having failed to do so, appellants have  demonstrated no conflict in the jury=s answers.^[2]  Therefore, appellants= second issue is overruled, and the judgment of the trial court is affirmed.

 

 

 

/s/        Richard H. Edelman

Justice

 

Judgment rendered and Memorandum Opinion filed April 4, 2006.

Panel consists of Justices Edelman, Seymore, and Guzman.