## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 19

- 00022

- CV

PLEASANT GROVE INDEPENDENT SCHOOL DISTRICT , Appellant
V. FIELDTURF USA INC. AND ALTECH, INC. , Appellee s

On Appeal from the 102nd District Court Bowie Coun ty, Texas Trial Court No. 15C1318

- 102

Before Morriss, C.J., Stevens and van Cleef , JJ. Opinion on Remand by Chief Justice Morriss2 

### OPINION ON REMAND To build a new football stadium, Pleasant Grove Independent School District contracted with prime contractor Altech, Inc., wh ose subcontractors included FieldTurf USA , for the manufacture and provision of an artificial

- turf field bearing the product name Prestige XM

- 60 , with Duraspine fibers. Though the field ’ s life was purported to be ten to twel ve y e a rs and was warranted for eight years, the field started degrading within five years. A dispute arose over the turf, resulting in various claims among the District , Altech, and FieldTurf. Notwithstanding explicit contract language limit ing FieldTurf ’s w a rranty to repair or re place defective turf , the District rejected FieldTurf’s proposal to repair the field. Instead, the District decided to install a
new field and then maintained at trial that it was entitled to damages measured by the tu rf’ s
rep l aceme nt cost. Fatally to its warranty claim, t he District stood by that position by not introducing evidence for the statutorily sanctioned measure of damages. The trial court granted summary judgment in favor of Altech and partial summary judgme nt in fa v or of FieldTurf as to the District ’ s fraud claims. The District ’ s warranty claim against FieldTurf proceeded to trial, where the jury f ou nd that FieldTurf breached its warranty and awarded the District $175,000.00 in actual damages. Bo th the District and Fiel dTurf appealed to this Court

. See Pleasant Grove Indep

. Sch

. Dist

. v. FieldTurf USA , 634 S.W.3d 84 ( Tex. App.

— Texarkana 2020) , rev’d in part , FieldTurf USA v. Pleasant Grove Indep

. Sch

. Dist

. , 642 S.W.3d 829 (Tex. 202 2)

. On appea l, w e reversed Altech ’ s su mmary judgment against the District as to the breach of warranty claim and affirmed FieldTurf ’ s partial summary judgment against the District

.3

Pleasant Grove Indep

. Sch

. Dist

. , 634 S.W.3d at 95

. B e cause we remand ed t he case for a new trial, we addressed neither the District ’ s two points of error regarding the measure of damages and it s motion for a new trial on attorney fees nor the five points of error raised in FieldTurf ’ s

cross - appeal regardi ng its motion for ju dgment notwit hstanding the jury ’ s verdict

. Id. at 100. The parties appealed to the Texas Supreme Court, wh ich affirmed our judgment as to the District ’ s fraud claims, reversed our judgment in part, reinstat ed the trial court ’ s award o f summary judgment i n favor of Al tech, and reversed our decis ion to remand the case for a new trial, remanding it back to us so that we might consider the previously unaddressed points of

error. F ieldTurf USA , 6 42 S.W.3d 82 9

. Here, on remand, we address FieldTurf ’ s cha llenge s to the jury ’ s verdict against it on the warranty claim

. W e also address the District ’ s argument on appeal that the jury w as erroneously instructed on the measure of damages

. We reverse th e jury ’ s award of damages and rend er a take

- nothing judgment in favor of FieldTurf because , (1) under the c lear language of the warranty, repair and replacement were the exclusive remedies for breach of warranty ; (2) t he j ury w as p roperly i nstruc ted on d am ages ; and ( 3 ) even if the Distric t pled, proved, and obtain ed a jury finding that the warranty failed of it s essential purpose, it failed to produce evidence of damages. (1) Under t he Clear Language o f t he Warranty, Repair a nd Replacement Were t h e Exclusive R e medies f

or Breach o

f Warranty
F ieldTurf contends that the District was not entitled to recover money damag es and that the tria l court should have granted its motion for judgment not withstanding the verdict (JN OV) , because the District’s sole remedy under the wa rranty and the Texa s U niform Comm ercial Code4

(UCC) was repair or replacement of the field. To put th is in its full context, we offer the background of this cas e. When the District decided to build a new football stadium and install a synthetic

- turf fiel d, it contracted wit h A ltech to be the general contractor . Among the subcontractors was Fiel dTurf

. I n 2009, b a sed on representations made by FieldTurf representatives , the District ’ s governing board selected FieldTurf ’ s Prestige XM

- 60 field with Duraspine fiber as its new synthetic

- turf field. T he turf materials were obtained from FieldTurf and were ins t all ed onto the field by a separ ate subcontractor

. The FieldTur f field was installed in th e n ew football st adium b etween August and October 2009. FieldTurf provided an eight

- year limited warranty on the artificial

- turf field.
Fi eldTurf ’ s l imited w arrant y for the field provided : FIELDTURF warrants that i f Prestige XM

- 60 for football, soccer, s y nt h etic tu rf proves to be def

ective in material or workmanship, resulting in a loss of pile height greater than 50%, during normal and ordinary use of the Product f o r th e sporting activiti es set out below or for any other uses for which FIELDTURF gives it s w r itten a uthorization, withi n 8 years from the date of completion of installation, FIELDTURF will, at FIELDTURF ’ s option, e ither repair or rep lace the affected are a wit hout charg e to the ex tent required t o meet the warranty period (but no cash refunds wi l l b e made)

. . . . This warran ty is limited to the remedies of repair or replacement, which shall constitute exclusive remed ies available under this warranty, and a ll ot her remedies or reco ur ses which might other wis e be available are hereby waived by [ the D is trict ]. FIELDTURF will hav e no other obligations or liability for damages arising out of or in connection with the use o r performance of th e product including b ut wi thout limitation, da ma ges for personal injury or economic losses. The warranty p eriod o ff

icially began on or about A pril 14, 2010. Around June 2014, the District personnel notified FieldTur f that the field was degrading and its fibers were becomin g brit tle, causing color l os s and loss of traction. I n July, Ross Wittig,5

a FieldTurf repres e nt ative, personally walked th e field and took photos of it. Dur ing Wittig ’ s subsequent “ off the record ” conversation with Josh Gibson, who ha d, in 2014, replaced Davis as coach and a thlet ic d irector , and Steve Sha tto, the District ’ s maintenance director, Wi ttig ad mitted that the fiel d was “ in bad condition ” and that FieldTurf ha [d] multiple fields that [were] failing. T hey [ were] failing at

-- at a large rate all over the Un ited States. Th ere [were] some schools that [were] gett ing these fields replaced ; t hat they [ had] just star ted turning down, you know, people. And so his advice to us was that the squeakiest wheel

-- those were his words : the squeakiest whee l [was] going to get att en ti on, and

-- and, you know, we needed to raise a fuss about our pro d uc t. Wittig emailed FieldTur f regarding the field ’ s condition, confir ming to FieldTurf that “ [t]here [were] some safety concerns, ” that the gold

- colored fibers i n the end zones “ ha[d] a bo ut disappea red, ” that “ [m]any inlays [were] separ ating, ” and that t h e field ’ s white lines were be ginning to disappear.
B ecause the District continued to complain about the field ’ s c ondition, Todd Bresee, FieldTurf ’ s designated Du r aspine field evalua tor, i ns pected the field in September 2014 . I n Bresee ’ s resulting report , h e concluded that the field was “ showing signs of ac celerated wear in all the fiber colors ” between the football field ’ s numbers, that there were “ large amounts o f broken fiber on t he sur fa ce, ” and that the “ gold fiber [was] broken complet ely down to the to p of the infill. ” Bresee s tat ed that the gree n fibers, which comprised most of the field, were in poor or fa ir condition, that all the gold fibers were in poor condit ion, tha t only the bl ack fibers in the end zone and in the field logo w ere found to be in good condition, and that n one of the fibers w ere found to be in very good or excellent condition. His repor t to FieldTurf included the following

com ments:6

Th e field has a large amount of broken fiber on it. The AD showed me pics of this fiber cloggin g u p his players cleats w hen t he field is wet. Owner is also upset with the amount of fiber that has to be clea ned out of the locker room each day. I was on my k n ees taking pictures and w he n I stood up I was covered with the green field fiber

. Owner too k p ics of my pants covered w it h the fiber. This field needs to be cleaned and loose fiber removed. Gibson te stified that the field was the worst he had ever s ee n , that it was covered in br oken and split fibers, and that it had become a safety issue due t o the layer of broke n fibers ma king the field slippery. Gibson testified that Bresee agreed with his conclusi on that t he field was in “ bad shape. ” During the la s t three months of 2014 , t he Distric t complain ed to F ieldTurf about the field ’ s prem ature wea r a nd degradation and demand ed t hat FieldTurf replace the field under warranty. In January 2015, FieldTurf Cus tomer Service Director, Julie Paquin, responded to t he District ’ s requests wi th an email that claimed that FieldTurf ’ s inspection of the field f o un d it to be in “ fair/good co ndition, ” that the field problems were merely cosmetic and present ed no playability or safety hazards, and that the field merely neede d a “ laymor scrape ” proce ss that would remove some of the rubber infill at the ba se of the f i be rs to expose m ore of the fi bers. The District rejected the laymor scrape as an acceptable so lution because it would improve the cosmetic look of the field for o nly a sh ort period of tim e. Rather, the District demanded that FieldTurf honor t h e warranty an d replace the field. In F i eldTurf ’ s February 12, 2015, response
to the District ’ s demands, F ieldTurf refuse d to replace the field, claiming th at even though the fibers were degraded, th e field was not in poor en ough condition to require repl acement bec a us e the fiber de gradation was “ predominately a problem of appearance. ” In September 2015, afte r its further requests for replacement were denied , the District cho se to fight for its turf, f iling a7

claim a gainst Altech for breach of warranty an d claims ag a in st FieldTurf f or fraud and breach of warranty. The District subsequently removed and replace d the field at its own expense. The trial court g ranted summary jud gment in favor of Altech an d a summary judgment in favor of Fiel d Turf as to the District ’ s f r au d claims. Th e District ’ s remaining claim for breach of warranty against FieldTur f pro ceeded to trial, whe re the jury found that FieldTurf brea ched its warranty and awarded t he District $175,000.00 in ac tu al damages

. FieldTurf sought a JNOV on the basis that the District was not entitled to damages for br e ach of warranty. The trial cou rt d enied FieldTurf ’ s motion fo r a JNOV. Having reviewed the above fact s and procedural history, we turn to FieldTur f’s issue regarding the t rial court ’ s denial of its moti on for JNOV as to th e Dist ri ct ’s warranty claim

. We r ev i ew a motion for JNOV un der a no

- ev idence standard of review, meaning we

“ credit evidence favoring the ju ry verdict if reasonable jurors could , and disregard contrary evidence unless reas onable jurors could not. ” Tanner v. Na tion w ide Mut. Fire Ins. Co

. , 2 8 9 S.W.3d 828, 830 (Tex. 2009) (cit ations omitted). W e will uphold the ju ry ’ s finding if more than a sci ntilla of competent evidence supports it. Id

. “ The final test for legal sufficie ncy must alwa ys be whether the evide nce at t rial would enable reaso na b le and fair

- minded peop le to reach the verdict under review. ” Id

. The in terpretation of an unambiguous contract is a question of law that we review de novo using well

- settled contract

- c onstruction p rinciples. URI , Inc. v . K

lebe r g Cty

. , 543 S.W.3d 755, 7 6 3 (Tex. 2018). We pres ume that pa rties intend what the words in their co ntract say, and8

we interpret co ntract language according to its plai n, ordinary, and generally accepted meaning

u nless the con tract directs otherwise

. Id

. a t 763

– 64. Under S ection 2

. 71 4 of the U C C , a buyer who has accepted nonconforming goods that breach a given warranty may recover mo ney damages in the amount of “ t he diff erence at the time and pl ace of accep tance between the value of the goods accept ed and th e value they would hav e h ad if they had been as warranted

. ” T EX
. B US
. & C OM
. C ODE A NN
. § 2.71 4 (b)

. However, parties may agree t o limit the remedies available for br each of warranty. See We aver v. Jam ar , 383 S.W.3d 805 ( Tex. App.

— Houston [ 14 th D ist .] 2 01 2 , no pet. ) ; Mostek Co rp . v. Chemetron Corp. , 64 2 S.W.2d 20, 25 ( Tex. App.

— Dallas 1982 , writ dism ’ d by agr. )

. S ection 2.719 (a )
p rovides that, subject to certain other provisions , the parties may a gree to limit the buyer ’ s remedy exclusively to “ r epa ir a nd replacement of non

- co nf o rming goods o r parts

. ” T EX
. B US
. &
C OM
. C ODE A NN
. § 2.71 9 ( a )

. Under that section,

(1) the agreement may provide for remedies in addition to or in substitution for those provided in this chapter and may limit or alter t he me asure of damages recoverab le under thi s ch apter, as by limiting the b uyer ’ s remedies to return of the goods and repayment of the pric e or to repair and replacement of non - conformi ng goods or parts; and (2) resort to a remedy as provided is op tional u nless the re medy is expressly a gr eed to be excl usive, in which case it is the sole remedy.
T EX
. B US
. & C O M
. C ODE A NN
. § 2.719(a). L imit e d and exclusive remed y provisions are enforce a ble under Texas law. See New Braunfels Indep

. Sch

. Dist

. v. F ieldTurf U SA , N o. 07

- 20

- 00308

- CV, 2021 WL 5 277135 , at *5

– 6 ( Tex. Ap p.

— Amarillo Nov

. 12, 2021 , p et. denied ) (mem. op.) ; Mostek Corp. , 642 S.W.2d a t 2 5 ; Ganda , Inc. v. All Plastics Molding , Inc. , 521 S.W.2d 94 0 (Tex. App.

—

Waco 1975, writ ref ’ d n.r.e.)

.9

Here, the appl icable warra nty language s tated : [ A t] Field Turf ’ s option, [it will] either repair or repla ce the affected area without charge, to the exte nt required to meet the warranty period (but no cash refunds will be made)

. . . . T his warranty is limited to the reme dies of repair or replacement, wh ich shall cons titute the exclusive remedi es availab le un der this warranty, and all other remedies or reco urses which might otherwise be available are h ereby waived by [ the District ]

. . . . F ieldTurf will have no other oblig at ion s or liability for damages a rising out of or in conn ection with the u se or pe rform ance of the product including but without limitatio n, damages for personal injury or economic l osses. FieldTurf contends that , as per Section 2.719(a), the parties lim it ed the remedies available for b reach of w arra nty , and u nder the express and un ambigu ous terms of the warranty, t he District

was limited to , at FieldTurf ’ s option, the r emedies of repair or replacement of the field a nd , therefore , could not obtain money d amage s o n its claim for breach of warrant y If the partie s intend for the stated remedy to describe the sole remedy under the contract,

“ t his must be clearly expressed. ” Equistar Chems. , L.P. v . ClydeUnion DB , Limestone , 579 S.W.3d 505, 522 ( Tex. App.

— Hou ston [14 th Dist.] 2 019, pet. de ni ed )

. Here , u n der the pl ain language of t heir contract, the District and FieldTurf agreed that repair or replacement were the

“ exclusive ” and “ sole ” available remedies for a bre ach of warranty and that the District “ waived ”
any and all other remedies

. S im ilar c ontr actu al languag e has been held t o establish an exclusive or sole remedy. The warranty language in a recent case involving the same product was identical to th e lan guag e present in this case, and the c ourt of a ppea ls held tha t the New Brau n fels sc hool distr ict ’ s claim fo r br each of warra nty was l imited to the exclusive remedies of repair or replaceme nt of the turf field installed for that District. See New Braunfels Indep

. Sch

. Dist

. , 2021 WL 5277135 , at *5

– 6

. I n PPG Industries, Inc. v. JMB/Hou st on Center s L im ited Part

n ership , the10

Texas Supreme Court held that the contractual warranty was limited to rep lacement where the warranty provided : “ P u rsu ant to this limited warrant y, [seller] will onl y supply a new unit, and no labor, installat io n or special or c onse q uential dam ages are include d.

. . . [Seller] makes no other warranty

. ” PPG Indus. , Inc. v

. JMB/H ouston Ctrs. Ltd. P ’ ship , 146 S.W.3d 79, 98, 101 (Tex. 2004 ). Simila rly, a warranty stating , “ Seller shall in n o event be liable to bu ye r . . . for damag es o f any kind .

. . resulting f rom a ny cause whatsoever

. . . and seller ’ s sole liabi lity shall be to replace any products covered by this agreement which do not conform to the specifications set forth herein ” wa s held to pr ovide a vali d, exclusive remedy o f r eplacement. See Mostek
Cor p. , 6 42 S.W.2d at 26

. The District concedes that “ the parties con tracted for the express warranty for repair or replacement of a defective fiel d. ” However, the District also argues that it s claim for brea ch of warranty is n ot l i mited to, a s FieldTurf cont ends, specific performance

— the actual repair or replac ement of th e field. Section 2.719 states that , through a limited warran ty, the par ties may

“ limit or alter the measure of dama ges recoverable

. . . as b y limiting the bu ye r ’ s remedies .

. . to repair o r repl acement of non

- conforming goods or parts. ” T EX
. B US
. & C OM
. C ODE A NN
. § 2.719( a)( 1) ( e mphasis added )

. The D istrict contends that the warranty l anguage means that it and Fiel dTurf agreed to change t he “ measure of dama ges r ecoverable ” from Section 2. 7 14 ’ s default measure based on the d ifference in market value to “ the cost to repair or replace the field. ” T EX
. B US
. & C OM
. C ODE A NN
. § 2.714 (emphasis added)

. However, the plain con tract language does no t p rovide the cos t of , or monetar y damage for, re pair or replacement as an available remedy. Furthermore, the Dis tric t fails to cite to any authority interpreting this type of11

exclusive “ repair or repla ce ment ” warranty t o allow m one y damages for the cos t of repair or repl acem e nt , and we are aware of non e . In light of the foregoing, we f ind that , under the terms of th e w arranty, the District’s claim for breach of warranty was limited to repair or replacem ent of the field , u nless it pl ed, proved, and obtai ne d a jury finding on a n exception that would suppo rt damages. See T EX
. B US
. & C OM
. C ODE A NN
. § 2.719( b )

. To that en d, the District argues that it was entitled to damages because the trial court incorrectly in structed the jury reg ar ding the measure of da ma ges. We next
tur n to that damage

- instruction iss ue. (2) The Jury Was Properly I nstructed on Damages
T he District contends on appeal that the trial court err ed by refusing to instruct the jury that the measu re of damages was the c ost of replacing the fi e l d. We disagree.
An i nstruction is proper if it might assist the jury in answer ing the submitted questio ns,

accur a tely states the law, and finds support in the pleadings and evidence

. T E X
. R. C IV
. P. 277;
T hota v. Young , 366 S.W

. 3d 678 , 687 (Tex. 2012) ; La. & Ark. Ry. Co . v. Blakely , 77 3 S.W.2d 595, 59 8 (Tex. App.

— Texarkana 1989, wr it denied). “ A trial court is aff o rded more discretion when submitting instructions than when submitting questions. ” Clay v. A IG Aerospace Ins.
Serv s . , Inc

. , 488 S.W.3d 402 , 412 (Tex. App.

— T exar k ana 2016 , n o pet. ); Wal

- Mar t Stores, Inc. v. Middleton , 9 82 S.W.2d 468, 470 (Tex. App.

— San A n tonio 1998, pet. denied)

. A trial court has broad discretion to determine necessary and proper inst ructions, there fore , we review a trial

c o urt ’ s decision to ref

u se a partic ular instruction under an abuse

- of

- discretion standar d

. Shupe v. Lingafelter , 19 2 S.W.3d 577, 579 (Tex. 2006); In re V.L.K. , 24 S.W.3d 338, 341 (Tex. 2000).12

An abuse of discretion occur s where a trial court a cts arbitra ri ly, unreasonably, or w ithout

cons ideration of gui ding principles or clearly f ails to analyze or apply the law corr ectl y. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992); Downer v. Aquamarine Operators, Inc

. , 701 S.W.2d 238, 241

– 42 (Tex. 1985) ; Middlet on , 982 S.W.2d at 4 69

– 7 0

. Here, jur y question numbe r three asked the jury , “ [W] hat sum of money , if any, if pa id

now in [this] cas e would fairly and reasonably compensate [the D istrict] for its damages, if any, that resulted from th e fai lure to comply?” O ve r the Dist rict ’s obje c tion, t he q uestion was

acco mpanied by the following instr uction regarding the measure of dam ages : “ Consider the following elements of damages, if any, and none other. The difference at the time and place of accept ance between th e va lue of th e goods acce p ted and the value they woul d have had if they had been a s warranted. ” T he Dist rict contends that the trial c ourt erred by refusing its proffered instruction that the measure of damage should be the “ [r]e plac ement co st”

— th at is, “[t ]h e cost to repair or r e place the f

ield with a fiel d constructed from material s of good quality.” The remedy for a breach of an exp ress warranty is initially found in the plain language of the warranty itself. See Lankford v. Rog ers F ord Sales , 478 S.W. 2d 248 ( s eller will not be bound be yond terms of ex press warranty). Under Sec t ion 2. 719(b) , if an exclusive remedy, like the one
in this case, fails of its essential purpose, the UCC provides that t h a t “ remedy may be had as provide d in this tit le.” T EX
. B U S
. & C OM
. C ODE A N N
. § 2.719(a)

. In the case of a breach of warranty for a ccepted goods , 1 the remedy referred to i n Section 2.719 is fo und in S ection 2.714, where the UCC allows the buyer to recover , in money damages , “ the differe nce at the time a nd

1 He re, there is no question that the D istr ict accepted the fi eld.13

plac e of accepta nce bet ween the value o f the goods acce pted and the value they w ould have had if they h a d been as warran ted.” T EX
. B US
. & C O M
. C ODE A NN
. § 2.71 4 ( b ) ; see New Braunfels Indep

. Sch

. Dist

. , 2021 WL 5277135, at * 5 ( citing Se ction 2.714 as “ the defa ul t remed y” availab le i f warranty i s shown to fail of its essenti al purpo se) ; Equistar Chem

. , 579 S.W.3d at 52 2 (cit ing Section 2.714 as remedy “provided in this titl e” under Sec ti on 2.719(b)) ; Morga n Bl d gs. & Spas v. Human e Societ y of S e . Tex

. , 249 S.W.3d 48 0, 491 (Tex. App.

— Beaumont 2008 , no pet. ) ( citing Secti on 2.714 as UCC remedy for breach of warranty).
As detaile d above, the exclusive warranty in this case did not allow fo r m on ey damages for a brea c h of warran ty. Even assumi n g, arguendo , that the District pled, proved, and obtained a jury finding tha t the express, exclusive warranty in this case had failed of its essential purpose, the only damages the District wou ld be en tit le d to are those un der S ection 2.71 4(b), the langua ge of which the challenged jury instruction closely track s . See i d .; T EX
. B US
. & C OM
. C ODE A NN
. § § 2.71 4 ( b ) , 2.719 (b)

. T he District conten ds that it was entitled to a measure of damages that compensated i t for the cost of rep l acing the f ield

— what i t cal ls the “benefit of the bargain.” In support of its argument that the trial co urt erred in rejecting its proffered instruction, the District relies on general breach

- of

- contract law , and i t argues that the m e asure of damages in t his case sh ould have b een “ expectancy” damages , which provide the “benefit of the plaintiff’s bargain.” Quigley
v. Bennett , 227 S.W.3d 51, 56 (Tex. 2007); Walden v. Af filiated C o mputer S ervs. , Inc. , 97 S.W.3 d 303, 328 (Tex. App.

— H o us ton [14th Dist.] 2003 , pet

. denie d). Howev er, t h e cases cited in support of the District ’s argument are inapplicable because cases dealing with a breach of14

warranty are not the same as thos e dealing with a breach of contract. S w . Bell Tel. Co . v . FDP
C or p . , 811 S.W.2d 57 2, 5 7 6 (Tex. 199 1) (under UCC, b reach of contract and breach of warranty are different causes of action )

. Fo r example, if a buyer accepts goods that prove to be non

conform ing , t he buyer may recover for breach of warra nty reme die s , but if a buyer rejects the
g oods or rev okes accep tance, the buyer may recover breach

- of

- contract remedies. See T EX
. B US
. & C OM
. C O DE A NN
. § 2.714; Selectouch Corp. v. Perfect Starch, Inc. , 111 S. W.3d 830, 8 34 (Tex. App.

— Dallas 2003, no pet .); see also T E X
. B U S
. & C OM
. C ODE A NN
. § 2

. 608(c) (buy er who revokes a cceptance has “the same rights and duties with regard to the goods involved as if he had rejected them”). A bsent warranty provisions to the contrary, the cost of repair or replacem en t is not the applicabl e m easure of dam age s fo r a breach o f warr anty

. See Omni USA, Inc., v. Parker

Hannifin Corp

. , 964 F.Supp.2d 805, 829 (S.D. Tex . 2013) ( “ The measure of direct d amages for a breach of warranty i s the market value difference between th e goods as delivered and t h e goods

as warra nted at the time and p lace of ac ceptance

. ” ) ( citing Chaq Oil Co. v. Gardner Mach

. Corp

. , 500 S.W.2d 877, 878

– 79 (Tex. App.

— Houston [1 4th Dist.] 1973, no writ) , disapproved

o f on other grounds by MAN Engines & C om ponents, Inc. v. Sh ows , 43 4 S.W.3d 132 (Tex

. 20 14) ) ; accord S immons v. Simpso n , 626 S.W.2d 315, 317 (Tex. App.

— El Paso 1980, no writ) ; Valley Da tsun v. Martinez , 578 S.W.2d 4 85, 490 (Tex. Ap p . — Corpus Christi 1979, no writ)

. While the District c laims that its proffe red instructio n provides the “ben efit of the barga in , ” S ection 2.71 4’s “ difference in market value ” measure is a benefit of the bar gain remedy. See W.O. Bankston Nissan v. Walters , 754 S.W.2d 127, 128 (Tex. 1988) (“ [T]h e ‘benefit of t he bargain’ measure . . . is the di ff erence between th e va lue as repres ented and the15

val ue actually received.”). Furthermore, the District fails to direct this Court to any breach

- of

warranty case like this one where its proffe red damage instruction was giv en , and we are aware

o f n one. Here , the given instruc tion ac curately s tated the law , wa s supported by the pleadings, and assist ed the jury in answerin g the damage q uestion . T herefore, the trial court was within its discretio n to instruct the jury as to t he Section 2.714(b) measure of da ma ge s. See T E X
. R. C IV
. P. 277; Thota , 366 S.W.3d at 6 87

. Accordingly, the Distr ict ’s point of error must fail. Having established that the court’s charged measure of damages was faithful to Sect ion 2.714(b) , 2 we next examine w het h er the District produced e vidence to suppor t th at measure of damages. (3) Even If t he District Pled, Pr oved, a nd Obtain ed a Jury Finding t hat t he Warranty Failed o f I ts Essential Purpose, It Failed t o Produce Evidence o f Dam ages We turn to FieldTurf’ s final point of error

. FieldTu r f contends that it was en titled to a JNOV because th e District failed to produce evidence of its damages. We agree. Even in the face of an exclusive, limited remedy for breach of warr anty, a party may still recover money d amages u nder Article 2 of the UC C for breach of war rant y “ [w]here ci rcumstances cause an exclus ive or limited remedy to fai l of its essential purpose. ” See T EX
. B US
. & C OM
. C ODE A NN § § 2.714 , 2.719(b) . As detaile d below, we need not address whether the D istrict pled, proved, and obta in ed a jury finding t hat the warranty failed of its ess ential

2 In the charge co nference, FieldTurf o bje cted to the charge on the bas is that no evidence had been prod uced to support even this correct Section 2.71 4(b) jury charge. That objection is not be fore us, due to the posture of this cas e.16

pur pose. 3 The District’s dama ge claim must fail in any event because there is no evidence to support the jury’s award of damages.
Pro viding evidence of damages i s vital to a p laintif f ’s c ause of ac tion

. I n Chaq Oil , Chaq Oil bough t a tractor from Gardner Machi nery Corp., but later, Chaq Oil had to make rather extensive repairs to the tractor

. Chaq Oil Co. , 500 S.W.2d at 87 7

– 78

. Ch aq Oil sued Gardner for breach of the warranty for f i tness of use , but the trial court entered a take

- no thing judgment in favor of Gardner. Id. The c ourt of a ppeals affirmed the trial court’s judgment , because the measure of damag es for this breach of wa rrant y action was the difference in market value betw een the equi pm ent a s delivered and as warra nted , an d Chaq Oil presented eviden ce only of the purchase price and the cost of repair s. Id. at 878

– 79. Chaq O il ’s claims failed as a matter of law because i t fai led to present any evidence as to the tractor’s dif ference i n marke t value. Id. at 879.
Th e fac ts of this case are very simil ar to those of Chaq Oil. Here, as in Chaq O il , the measure of damages , as defined by the court ’ s charge, was the same

— “[t]he difference at the time and pla ce of acce ptance between the value of the g ood s accepted and the value they w ould have had if they h ad bee n a s warranted”

— and , like Chaq Oil , the District produced evidence only of the field’s initial purchase price and the c ost of replacement. T he District f ails t o direct this Court to any eviden ce of the diff erence in mar ket val ue between the field it recei ved and the

3 A party seekin g money damages in cont ravention of the reme dy prov ided for in the warranty mu st plead and prove that the wa rranty failed of its essential purpose and must als o seek a jury f inding on the issue. Se e Great A m. Prods. v. Permabond Int’l , 94 S.W.3d 675, 684 (Tex. App.

— Austin 2002, pet. denied). Failu re to d o so forfeits the issue. I d. ; Henderson v. Ford Motor C o. , 547 S.W.2d 663, 669 (Tex. App.

— Amarillo 1977 , n o writ) (“[T]he re is no pleading by the plaintiff th at she was entitled to re co ver because the wa rranty failed to its es sential purpose, and, the refo re, no jury issue was rai se d or could be submitted.”)

.17

field it was promi sed . Indeed, a t trial, the District admitte d that there was “no evidence to support this damage measure,” a nd on appeal, t h e Dist rict “concedes that it did not pu t o n evidence of difference in mar ket value at the time o f deli ver y.” Even if there had been proof and a finding that th e warranty failed of its essential purpo se, b ecause the re is no pr obative evidence of the difference in the fi eld’s market value at th e t ime of delivery , the Di st rict ’s claim for breach of w arrant y must fail

. See id. at 878

. Accordingly, w e sustain this point of error, reverse the judgment , a nd render a take

nothi ng ju dgment in favor of FieldT urf

. Due to our ruling, we need not addres s t he parties’ remaining poi nts of error

. 4

Josh Morri ss , III Chief Justice Date Submitted: M ay 3, 2022 Date Deci ded : Ju ly 1 , 2022

4 The District’s remaining point of error argued that the trial court erred by not granting a partial new trial on attorney fees. FieldTurf’s unaddressed points of error argue that the District was not entitled to damages and th e trial court should have granted its motion for JNOV because: (1) there was no evidence as to damages related to the gold

- colored fibers; (2) the District f ailed to plead or prove that the warranty fail ed of its essential purpose; and (3) the record is le ga lly insufficient to establish that FieldTurf had both notice and a reasonable opportunity to cure.