Full Opinion (html_with_citations)

Affirmed and Memorandum Opinion filed December 21, 2023.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-22-00674-CV

   WEST HOUSTON LUXURY IMPORTS, INC. D/B/A JAGUAR LAND
             ROVER WEST HOUSTON, Appellant
                                        V.

          JUSTIN LEIGHTON AND LINZI LEIGHTON, Appellees

             On Appeal from the County Civil Court at Law No. 1
                           Harris County, Texas
                      Trial Court Cause No. 1136390

                 MEMORANDUM OPINION

      In this contract dispute regarding a Land Rover purchase, appellant West
Houston Luxury Imports, Inc. d/b/a Jaguar Land Rover West Houston (“West
Houston”) challenges a take-nothing judgment in favor of the buyers, Justin
Leighton and Linzi Leighton. In its first issue, West Houston argues that the trial
court reversibly erred by omitting several questions from the jury charge. We
overrule this issue because West Houston did not demonstrate that its proposed
questions would have determined controlling issues or were reasonably necessary
to enable the jury to render a proper verdict. Second, West Houston contends that
the evidence is insufficient to support the jury’s finding that the Leightons did not
breach the parties’ contract. Viewing the record consistent with the applicable
standard of review, we conclude there is legally sufficient evidence to support the
finding. Finally, West Houston argues that the trial court committed reversible
error in the admission of certain evidence.      We conclude, however, that the
complained-of evidentiary ruling, if error, was not harmful.

      We affirm the trial court’s judgment.

                                   Background

      The Leightons bought a Mercedes vehicle in Colorado and shipped it to
Texas, where they live. Several weeks later, the Leightons purchased a Land
Rover at West Houston and provided the Mercedes as a trade-in. After reselling
the Mercedes to a third party, James Russ, West Houston realized that the
Mercedes had never been titled and thus there was no title to pass on to Russ. The
parties presented differing accounts of what occurred and who was at fault.

      The Colorado dealership applied to register and title the Mercedes with the
Harris County Tax Assessor-Collector’s office. The application was returned,
however, due to several deficiencies, including an underpayment of sales tax. It is
undisputed that the Colorado dealership miscalculated the sales tax owed on the
vehicle.   The Leightons paid $7,287.82 in sales tax but owed an additional
$476.08.

      After receiving the tax assessor-collector’s letter returning the title
application, Justin contacted the tax assessor-collector and said that he was
planning on trading in the Mercedes and purchasing a different car. According to


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Justin, the tax assessor-collector told him that the first person to register and title
the Mercedes would be responsible for paying the full amount of sales tax on the
Mercedes, and because the Leightons were not applying to title the Mercedes in
Texas, they were not responsible for paying the sales tax deficit.               Justin
communicated this information to the Colorado dealership, which promised to
refund the Leightons the sales tax collected on the Mercedes purchase.

      Justin later visited West Houston to purchase a Land Rover and spoke with
salesman Bojan Secerkadic. According to Justin, he told Secerkadic and several
others at the dealership about the tax deficit owed on the Mercedes, which he
intended to offer as a trade-in. West Houston allegedly assured Justin that the
dealership would pay the sales tax on the Mercedes to obtain title. The Leightons
and West Houston agreed on a deal, whereby the Leightons traded in the Mercedes
and purchased a new Land Rover. Justin testified that the Leightons would not
have purchased the Land Rover at the agreed-upon price but for the fact that they
were receiving a refund of the sales tax they paid to the Colorado dealership; he
said he accepted less money in trade-in value for the Mercedes than he otherwise
would have because of the tax refund. The Leightons signed a Retail Purchase
Agreement (the “Agreement”), which included a merger clause providing that no
representations were made other than those set forth in the contract.                 The
Agreement also provided that “[a]ny Trade-In vehicle delivered by You to [West
Houston] in connection with this transaction shall be accompanied by a title or
documents sufficient to enable Us to obtain a title to the Trade-In Vehicle. . . .”

      Justin testified that West Houston knew that the Mercedes had never been
titled because the car still had paper plates. According to Justin, if a car has not
been registered (and thus no permanent plate issued), then it has never been titled.
Kolby Wahl, West Houston’s general manager, testified that it was common in the

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industry for a dealership to resell a trade-in before obtaining title, but that it was
not common practice for dealers to investigate the title before reselling a trade-in.

      The Colorado dealership mailed the Leightons a packet of documents, as
well as a refund check for the sales tax they paid. Justin called the Colorado
dealership and asked what he should do with the documents.               Because the
documents contained the Leightons’ “personal information,” the Colorado
dealership told Justin to shred the documents, which he did.           The packet of
documents included the manufacturer’s certificate of origin (“MCO”) for the
Mercedes. Wahl explained that an MCO is the “equivalent of a title. It’s just not
issued by a state. It’s issued by the manufacturer. So the state will not issue a title
without that document.”

      After West Houston resold the Mercedes to Russ and realized that there was
an issue with title, Theresa Brooks from West Houston reached out to Justin and
asked him if he had the Mercedes’ MCO. He did not. Brooks then asked if Justin
would sign some forms to assist the dealership in obtaining title to the Mercedes.
Justin agreed to sign the paperwork but also said:

      Prior to signing I will need confirmation in an email and written
      confirmation that we are not responsible for any money due in regards
      to signing the title application. Please put a signed statement stating
      the above request[,] witnessed by a notary in with the paperwork
      you’d like us to sign.

      Neither Brooks nor anyone else from West Houston sent the Leightons any
paperwork to sign. West Houston also demanded that the Leightons remit the
$7,287.82 refunded by the Colorado dealership. The Leightons did not remit any
money to West Houston.

      Wahl said he contacted the Colorado dealership, and the title clerk told him,
“I talked to Mr. Leighton and he said if you can just send me the check back, I’ll

                                          4
handle the taxes because I live by the tax office.” In other words, by Wahl’s
account, the Colorado dealership told him that “Mr. Leighton said he would handle
the taxes.”

      West Houston filed a lawsuit against the Texas Department of Motor
Vehicles (“DMV”) to obtain a duplicate title for the Mercedes. Russ eventually
received the title to the Mercedes 16 to 18 months after purchase.

      West Houston then sued the Leightons for breach of contract. West Houston
alleged that the Leightons failed to convey title to the Mercedes because they
refused to pay the sales tax. As damages, West Houston sought recovery of the
sales tax paid on the Mercedes and the attorney’s fees expended in the suit against
the DMV. The Leightons asserted a counterclaim for fraudulent inducement,
alleging that West Houston represented to Justin that the Leightons would not be
responsible for any amount of the tax owed due to the Colorado purchase. West
Houston denied ever promising Justin that it would be responsible for paying the
sales tax on the Mercedes.

      The case was tried to a jury, which found that the Leightons did not breach
the “Agreement”1 and that West Houston did not commit fraud. West Houston
filed a motion for judgment notwithstanding the verdict and alternative motion for
new trial, which the trial court denied. The trial court signed a final take-nothing
judgment in the Leightons’ favor.

                                     Analysis

      West Houston raises three issues on appeal. First, it argues that the trial
court committed reversible error by omitting several questions from the jury charge

      1
         The “Agreement” meant “all documents executed by the Parties to complete the
Defendants’ February 13, 2019 purchase of the Land Rover from Jaguar Land Rover West
Houston.”

                                         5
over objection. Second, West Houston contends that the verdict against West
Houston on its breach-of-contract claim is against the great weight and
preponderance of the evidence. Third, West Houston argues that the trial court
erred in admitting certain evidence.

A.    Jury Charge

      The trial court submitted a broad-form question regarding West Houston’s
breach-of-contract claim:

      QUESTION NO. 1:
      Did Linzi Leighton and/or Justin Leighton fail to comply with the
      Agreement?
      Answer “Yes” or “No” as to each:
      Linzi Leighton: _______________
      Justin Leighton: _______________

      The jury answered “No” as to each defendant. In its first issue, West
Houston complains that the trial court erroneously refused to include in the jury
charge several additional questions concerning specific facts regarding the
Leightons’ alleged breach.2


      2
          The rejected jury questions are these:
      a) Did Appellees pay the full amount of the Texas sales tax arising from his
      purchase of the Mercedes in Colorado?
      b) Did Jaguar Land Rover West Houston agree in writing to pay the sales tax
      arising from Justin Leighton’s purchase of the Mercedes from Mercedes-Benz
      Littleton?
      c) Did Jaguar Land Rover West Houston renounce the Disclaimer in the Purchase
      Agreement waiving reliance on oral representations?
      d) Did Appellees provide Jaguar Land Rover West Houston the title for the
      Mercedes?
      e) Did Appellees provide Jaguar Land Rover West Houston the manufacturer's
      certificate of origin for the Mercedes?

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      We review a challenge to the trial court’s jury charge under an abuse of
discretion standard. Moss v. Waste Mgmt. of Tex., Inc.,
305 S.W.3d 76, 81
 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). A trial court abuses its discretion
when it acts in an arbitrary or unreasonable manner, or if it acts without reference
to any guiding rules or principles.
Id.
   A trial court has wide discretion in
submitting instructions and jury questions.
Id.
 (citing Howell Crude Oil Co. v.
Donna Ref. Partners, Ltd.,
928 S.W.2d 100, 110
 (Tex. App.—Houston [14th Dist.]
1996, writ denied).

      While the charge should obtain fact findings on all theories pleaded and
supported by evidence, a trial court is not required to, and should not, confuse the
jury by submitting differently worded questions that call for the same factual
finding. VingCard A.S. v. Merrimac Hosp. Sys., Inc.,
59 S.W.3d 847, 865
 (Tex.
App.—Fort Worth 2001, pet. denied) (citing Hyundai Motor Co. v. Rodriguez,
995 S.W.2d 661, 665-66
 (Tex. 1999)).         This principle applies to West Houston’s
proposed questions d), e), and f), which inquired whether appellees provided the
Mercedes title or MCO, or otherwise provided all documents sufficient to enable
West Houston to secure title. These matters describe specific ways in which West
Houston contends appellees failed to comply with the Agreement. But they were
subsumed within the broad-form breach question submitted in the charge. See
VingCard,
59 S.W.3d at 865
. When the court has fairly submitted the controlling
issues raised by the pleadings and the evidence, the judgment shall not be reversed
because of the failure to submit other various phases or different shades of the
same question. See Tex. R. Civ. P. 278; Holmes v. J.C. Penney Co., 382 S.W.2d

      f) Did Appellees provide Appellant all documents sufficient to enable Jaguar
      Land Rover West Houston to obtain a title to the Mercedes in accordance with
      applicable state law?
      g) Was Appellees lack of performance excused?

                                           7
472, 473-74 (Tex. 1964). Thus, the trial court did not abuse its discretion in
refusing to submit these proposed questions. See Berg v. Wilson,
353 S.W.3d 166, 179
 (Tex. App.—Texarkana 2011, pet. denied) (when broad-form question
subsumed issues, trial court did not abuse its discretion in failing to submit
separate questions on each issue).

      The remaining proposed jury questions about which West Houston
complains did not pertain to controlling issues. A controlling issue is one that
requires a factual determination to render judgment in the case. Employers Cas.
Co. v. Block,
744 S.W.2d 940, 944
 (Tex. 1988); see Murphy v. Seabarge, Ltd.,
868 S.W.2d 929, 934
 (Tex. App.—Houston [14th Dist.] 1994, writ denied). If an issue
is not controlling, it is immaterial, and the court may properly disregard the issue
as such. State v. San Miguel,
981 S.W.2d 342, 350-51
 (Tex. App.—Houston [14th
Dist.] 1998), rev’d on other grounds sub nom. State v. Miguel,
2 S.W.3d 249
 (Tex.
1999) (citing Spencer v. Eagle Star Ins. Co. of Am.,
876 S.W.2d 154, 157
 (Tex.
1994)). A jury question also can be considered immaterial when its answer cannot
alter the effect of the verdict. City of Brownsville v. Alvarado,
897 S.W.2d 750, 752
 (Tex. 1995); Nat’l City Bank of Ind. v. Ortiz,
401 S.W.3d 867, 883
 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied) (op. on reh’g); Hernandez v. Atieh,
No. 14-06-00582-CV,
2008 WL 2133193
, at *3 (Tex. App.—Houston [14th Dist.]
May 20, 2008, no pet.) (mem. op.). When the requested issue is not controlling on
a matter required to reach a verdict, a court does not abuse its discretion in
declining to submit it. See America’s Favorite Chicken Co. v. Samaras,
929 S.W.2d 617, 626
 (Tex. App.—San Antonio 1996, writ denied).

      Proposed questions a), b), and c) are not controlling or material to the
question of the Leighton’s alleged breach. For example, proposed question a)
would have asked whether the Leightons paid the sales tax on the Mercedes. But

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the Agreement imposed no duty on the Leightons to pay the sales tax. West
Houston acknowledges there was no agreement that either party pay sales tax on
the Mercedes. Thus, the Leighton’s failure to pay the sales tax would not have
breached the Agreement, and whether they did or did not pay it is not a controlling
issue.

         Proposed question g) — whether the Leighton’s lack of performance was
excused — also pertains to an immaterial or non-controlling issue because the jury
found that the Leightons did not breach the Agreement. As explained below, we
uphold the judgment based on the jury’s findings that the Leightons complied with
the Agreement, thus mooting any question of excuse.

         We therefore hold that the trial court did not abuse its discretion in refusing
West Houston’s proposed questions a), b), c), and g). See America’s Favorite
Chicken Co.,
929 S.W.2d at 626
.

         We overrule West Houston’s first issue.

B.       Sufficiency of the Evidence

         In its second issue, West Houston argues that insufficient evidence supports
the jury’s verdict.3


         3
         West Houston’s statement of its second issue is limited to a factual insufficiency
challenge. A factual insufficiency challenge to a jury finding must be raised in a timely motion
for new trial. Tex. R. Civ. P. 324(b)(2). West Houston filed a timely motion for new trial but
did not challenge the jury’s findings on factual insufficiency grounds. Therefore, it did not
preserve a factual insufficiency issue for appeal. Substantively, however, West Houston also
argues that the Leightons’ failure to comply with the Agreement was conclusively established,
which is a legal-sufficiency complaint. We therefore construe West Houston’s brief liberally as
challenging the jury’s answer to question number one on legal-sufficiency grounds only. See
Est. of Casas, No. 14-20-00575-CV,
2022 WL 711087
, at *3 n.2 (Tex. App.—Houston [14th
Dist.] Mar. 10, 2022, no pet.) (mem. op.); Alexander v. Kent,
480 S.W.3d 676, 692
 (Tex. App.—
Fort Worth 2015, no pet.); Baker v. Skains, No. 01-11-00501-CV,
2012 WL 2923191
, at *5 n.3
(Tex. App.—Houston [1st Dist.] July 12, 2012, no pet.) (mem. op.).

                                               9
      As the plaintiff, West Houston bore the burden of proof on its breach-of
-contract claim. See Vast Constr., LLC v. CTC Contractors, LLC,
526 S.W.3d 709, 718
 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (identifying required
elements).   When a party challenges the legal sufficiency of the evidence to
support an adverse finding on an issue for which it had the burden of proof, that
party must demonstrate on appeal that the evidence establishes, as a matter of law,
all vital facts in support of the issue. Dow Chem. Co. v. Francis,
46 S.W.3d 237, 241
 (Tex. 2001) (per curiam). In reviewing such a matter-of-law challenge, we
employ a two-part test. We first examine the record for some evidence that
supports the finding, while ignoring all evidence to the contrary.
Id.
 If there is no
evidence to support the finding, we then examine the entire record to determine if
the contrary proposition is established as a matter of law.
Id.
 The issue should be
sustained only if the contrary proposition is conclusively established.
Id.

      We consider the evidence in the light most favorable to the challenged
finding and indulge every reasonable inference that would support it. City of
Keller v. Wilson,
168 S.W.3d 802, 823
 (Tex. 2005). We credit favorable evidence
if a reasonable factfinder could and disregard contrary evidence unless a
reasonable factfinder could not. See
id. at 827
. Our task is to determine whether
the evidence at trial would enable reasonable and fair-minded people to find the
facts at issue. See
id.
 As long as the evidence at trial “would enable reasonable
and fair-minded people to differ in their conclusions,” we will not substitute our
judgment for that of the factfinder. See
id.
 The factfinder is the only judge of
witness credibility and the weight afforded to testimony. See
id.

      Applying the applicable standard of review and deferring to the jury’s right
to resolve credibility issues, we conclude there is some evidence supporting the
jury’s finding that the Leightons did not breach the Agreement. West Houston

                                         10
presents in essence two main arguments against the finding. First, West Houston
contends that the Leightons failed to comply because they did not pay the Texas
sales tax on the Mercedes. As explained, however, the Agreement did not obligate
the Leightons to do so. Based on the terms of the Agreement coupled with West
Houston’s acknowledgement that the parties did not reach any agreement as to
who was responsible for paying the sales tax, the jury reasonably could have found
that the Leightons did not breach the Agreement by failing to pay the sales tax on
the Mercedes.

      Second, West Houston contends that the Leightons failed to comply with the
Agreement because they provided neither title to the Mercedes nor all documents
necessary to enable West Houston to obtain title. But the Leightons agreed to sign
the documents West Houston said it needed to obtain the title; they were unwilling
to do so only if West Houston demanded that they remit the sales tax refund. This
is legally sufficient evidence to show that the Leightons did not materially fail to
comply with paragraph five of the Agreement. See Sasson v. Lipskey, No. 14-22-
00695-CV,
2023 WL 5022442
, at *5-7 (Tex. App.—Houston [14th Dist.] Aug. 8,
2023, no pet.) (mem. op.) (holding evidence sufficient to support finding of no
breach when defendants tendered performance under contract). The jury could
have rejected West Houston’s theory because Justin testified that he was unaware
of receiving the MCO from the Colorado dealership and that, in any event, he was
willing to sign additional documents to facilitate West Houston’s application for
title. The jury reasonably could have found that the Leightons did not breach the
Agreement by failing to provide documents sufficient to enable West Houston to
obtain title to the Mercedes.

      Thus, there is at least some evidence that the jury could have credited in
finding that the Leightons did not breach the Agreement. We conclude that there is

                                        11
legally sufficient evidence to support the jury’s breach finding. See Dow Chem.,
46 S.W.3d at 241
 (we examine the record for evidence that supports the finding,
while ignoring all evidence to the contrary).

       We overrule West Houston’s second issue.

C.     Evidentiary Ruling

       In its third issue, West Houston argues that the Leightons’ counsel attempted
to confuse and prejudice the jury by asking Wahl if there were viable alternative
means for the dealership to obtain a title for the Mercedes, other than instituting a
lawsuit against the DMV, such as through a tax hearing or securing a bonded title.4
West Houston objected to the question on relevance grounds. When asked about
relevance, the Leightons’ counsel answered, “Your Honor, it’s our position that the
dealership caused its damages, that they had alternatives which they could have
mitigated.”

       The line of questioning regarding West Houston’s ability to obtain a
replacement title goes to its damages, not whether the Leightons breached the
Agreement. Because the jury found that the Leightons did not breach the parties’
contract, a finding we do not disturb on appeal, any evidence regarding West
Houston’s damages is immaterial. For this reason, we need not decide whether the
trial court erred in allowing the line of questioning; even if error, the admission of
this evidence was not harmful. See Yeh v. David J. MacDougall, D.O., P.A., No.
01-06-00509-CV,
2008 WL 183712
, at *5 (Tex. App.—Houston [1st Dist.] Jan.
17, 2008, no pet.) (mem. op.) (“Because we find the evidence to be both legally
and factually sufficient to support the jury’s finding that NAH did not breach the
contract, Yeh is not entitled to any damages on that issue.”); see also Replacement

       4
        Wahl testified he was not aware of using a tax hearing to secure a vehicle title, but he
was aware of a bonded title.

                                              12
Rent-A-Car, Inc. v. JCD, Inc., No. 05-92-00379-CV,
1992 WL 379424
, at *2 (Tex.
App.—Dallas Dec. 22, 1992, no writ) (mem. op.).

      We overrule West Houston’s third issue.

                                    Conclusion

      Having overruled West Houston’s three issues, we affirm the trial court’s
judgment.




                                      /s/     Kevin Jewell
                                              Justice



Panel consists of Justices Jewell, Spain, and Wilson.




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