Affirmed and Memorandum Opinion filed March 17, 2009.
Fourteenth Court of Appeals
____________ NO. 14-07-01027-CV ____________ JENETTE DIEM LEE, Appellant V. MD LAM, INC., Appellee
On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2002-65195
Jenette Diem Lee appeals from a judgment favoring MD Lam, Inc. MD Lam sued Lee, and other members of her family, alleging various causes of action relating to the sale of a business. Following a jury verdict in its favor, MD Lam elected to recover against Lee for fraud, and the trial court entered judgment accordingly. In four issues on appeal, Lee contends that the trial court erred in: (1) entering judgment against Lee when her liability was “vitiated” by a jury finding in her favor; (2) allowing MD Lam to elect to recover on fraud without a jury finding on proximate cause; (3) “predicating” judgment against Lee on “producing cause” rather than “negligence that was proximately caused”; and (4) entering judgment against Lee when the jury returned conflicting answers. We affirm.
Background In its pleadings, MD Lam alleged that defendants made certain promises and representations pertaining to MD Lam’s purchase of K&K Cleaners, a dry cleaning plant. These promises and representations included that if MD Lam purchased K&K Cleaners, defendants would (1) provide proper training to MD Lam, (2) return MD Lam’s money if it was not satisfied with the business, and (3) continue to use K&K Cleaners to perform dry cleaning services for their other dry cleaning businesses. Based on these and other promises and representations and the alleged failure to keep them, MD Lam raised causes of action for common law fraud, civil conspiracy, breach of contract, breach of implied warranty, and deceptive trade practices. The jury returned a verdict against Lee on all causes of action submitted. MD Lam then elected to recover for fraud against Lee, and the trial court entered judgment accordingly. In support of her appeal, Lee has filed a clerk’s record but not a reporter’s record. Discussion In her first issue, Lee contends that judgment against her was in error because her liability was “vitiated” by a jury finding in her favor. In her fourth issue, Lee contends that judgment against her was improper because the jury returned conflicting answers. In support of both of these contentions, Lee specifically points to jury question no. 14, which asked: “Did Defendants agree to provide proper training and return Plaintiff’s money if they [sic] were not satisfied with K&K Cleaner[s]?” In regards to Lee, the jury responded “no” to question no. 14, thus indicating that Lee did not make the listed promises. Question no. 14, however, was a predicate question to question no. 15, which asked whether the defendants, including Lee, failed to comply with the promises set forth in questions no. 14 or 13. Question no. 13 asked the jury “Did Defendants agree to use K&K Cleaner[s] as the plant to perform dry cleaning for their substations?” In response to question no. 13, the jury found that Lee did in fact make such a promise, and in response to question no. 15, it found that Lee failed to comply with that promise. Lee offers no explanation as to how a negative response to one of two predicate questions in a breach of contract submission could “vitiate” or conflict with the findings of liability either on the contract submission itself or the fraud submission (questions 1 through 3) on which the
judgment was based. We see no such conflict. The judgment is supported by the jury’s fraud finding, which does not conflict with and is not vitiated by the negative response to one of two contract predicate questions. Accordingly, we overrule Lee’s first and fourth issues. In her second issue, Lee contends that the trial court erred in allowing MD Lam to elect fraud recovery when there was no jury finding on proximate cause. In her third issue, Lee contends that the trial court erred in “predicating” judgment against Lee on “producing cause” rather than “negligence that was proximately caused.” The gist of these two complaints is that the trial court erred in its submission of the fraud cause of action to the jury. However, in order to complain on appeal about alleged error in a jury charge, an appellant must first have preserved such argument in the trial court by making, and receiving a ruling on, an objection to the charge. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 272, 274. As mentioned above, Lee has filed only a clerk’s record in support of her appeal, arguing that the face of the clerk’s record demonstrates error. However, the record before us does not demonstrate that she objected to the charge language about which she now complains on appeal. Cf. Guyot v. Guyot, 3 S.W.3d 243, 245-46 (Tex. App.—Fort Worth 1999, no pet.) (holding appellant failed to preserve issue for appeal because available record did not demonstrate alleged objection was made). Accordingly, this argument is not preserved, and we overrule Lee’s second and third issues. We affirm the trial court’s judgment.
Adele Hedges Chief Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.