## NUMBER 13

- 18

- 00 550

- C V

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

CERTIFIED VALUE, INC. D/B/A KIDSTEAM

AND JOHN HAMPTON

, Appellant s

,

v.

INFINITE PLAY CO.

, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas.



## MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes 1



### Memorandum Opinion by Justice Longoria

1 The Honorable Gregory T. Perkes, former Justice of this Court, was a member of the panel at the

time this appeal was orally argued but did not participate in this decision because his term of office expired

on December 31, 2020.2 Appellee Infinite Play Co. (Infinite Play) contracted with appellants Certified Value,

Inc. d/b/a Kidsteam (Certified Value) and its sole owner and operator, John Hampton, to

construct and install indoor play equipment for appellee ’ s children ’ s play center in Corpus

Christi , Texas

. Following multiple alleged complications with the installation process and

an unsatisfactory completion, appellee filed suit against appellants, claiming fraud ulent

inducement

, breach of contract

, breach of express and implied warranties

, violations of

the Deceptive Trade Practices Act (DTPA)

, negligent misrepresentation or negligent

omissions

, and seeking exemplary damages and attorney’s fees

. A ppellants filed a

counterclaim and partial no evidence and traditional motion s for summary judgment

, the

latter of which were denied by the trial court

. At trial, following the denial of appellants ’

motion for directed verdict

, a jury found in favor of appellee

, and appellants ’ ensuing

motion for judgment notwithstanding the verdict (JNOV) w as denied

.

By five issues

, which we have reorganized and renumbered

, appellants assert:

(1 ) the trial court erred in denying their no

- evidence and traditional summary judgment

motions ; ( 2 ) the trial court erred in denying their motions for directed verdict and JNOV ;

( 3 )

– ( 4 ) the trial court abused its discretion in failing to submit a predicate jury instruction

on the requirement of a written agreement in a fraudulent inducement claim and including

an instruction on a cause of action not pleaded ; and ( 5 ) the trial court abused its discretion

in permitting appellee ’ s expert witness to testify. We affirm.

I. B ACKGROUND

On May 10, 2016, appellee filed suit against appellants

. Appellee principally

alleged appellants failed to provide a play center that met appropriate safety standards

as they represented that they would. Appellants filed their original answer on June 20,3 2016, and an original counterclaim on May 18, 2017, asserting appellee had :

(1) breached their contract by bringing a suit asserting claims without basis and which it

had waived pursuant to the express terms of the written agreement ; (2) unlawfully copied

and disseminated appellants’ design renderings in violation of copyright laws; and

(3) misappropriated trade secrets in its use and disclosure of renderings

. Appellants

sought damages for unjust enrichment, as well as exemplary damages and attorney ’ s

fees.

On February 1, 2018, a ppellants filed partial no

- evidence and traditional motion s

for summary judgment arguing : (1) appellee ’ s DTPA claim failed because appellee had

produced no evidence of its “ consumer ” status; (2) appellee ’ s fraud and negligent

misrepresentation claims failed because there was no evidence of justifiable reliance or

a written contract

, and appellee ’ s independent investigation negated reliance; and

(3) appellee ’ s breach of contract claim failed because there was no evidence of a written

contract. The trial court denied appellants ’ motions, and the case proceeded to trial

.

A. Trial

1. Tiffany Ybarra

Tiffany Ybarra is the sole owner of Infinite Play

, which operated an indoor

children ’ s play center in Corpus Christi , Texas from 2015 to 201 7

. Ybarra testified she

created Infinite Play in early 2015 after seeing a need for children

- based entertainment in

the Corpus Christi area. Ybarra conceded she had no prior experience operating an

entertainment or child

- centered facilit y and stated she hired a friend and former co

worker, Celeste Rittgers

, to assist her. Ybarra instructed Rittgers to “ look for quality, safe

playground equipment ” for the business. According to Ybarra, Rittgers found Certified4 Value’s website

, and based on the website, the two women believed Certified Value to

be the manufacturer of safe, indoor play spaces. At trial, Ybarra read aloud various

portions of Certified Value’s website regarding its’ membership affiliation s

, 2 compliance

with ASTM International (ASTM) safety standards, 3 and design, manufacturing, and

installation warrant ies. 4

Ybarra additionally read several e

- mail s into the record. In early May 2015, Rittgers

and Hampton began exchang ing e

- mail s regarding appellants ’ services. Ybarra and

Rittgers traveled to Dallas , Texas to meet with Hampton and tour Certified Value’s facility

o n May 29, 2015

. Ybarra testified that

, ultimately, as a result of repeated assurances by

Hampton

, appellee and appellants entered into a n oral agreement for the purchase and

complete installation of an indoor play center for $119,762.03

. On June 8, 2015, Rittgers

confirmed via e

- mail that the two companies were “[g]etting closer” to coming to an

agreement regarding the finalized design. On June 10, 2015, Ybarra received a pro rata

invoice via e

- mail from Hampton

. While a document titled “ T erms and C onditions of S al e ”

was attached to the invoice

, and the document contained multiple blanks throughout

indicating a purchaser ’ s signature was required

, Ybarra testified she never read or signed

2 Certified Value’s websit e stated it was a member of the International Association for Amusement

Parks and Attractions (IAAPA) and ASTM.

3 “ [ ASTM ] is one of the largest voluntary standards developing organizations in the world,”

responsible for “develop[ing] technical documents that are the basis of manufacturing, management,

procurement, codes and regulations for dozens of industry sectors.” Freque ntly Asked Questions

, ASTM

I NT ’ L , https://www.astm.org/ABOUT/faqs.html (last visited Jan. 29 , 2021). Certified Value’s website stated,

in part, that it “constantly works to enhance [its] indoor playground material and component specifications

so that they meet or exceed applicable U.S. ASTM F918 and EN71 European standards.”

4 The website stated Certified Value “designs, manufactures, and installs turnkey solutions that

promote [the] health and overall wellbeing of children,” and its products were “made in North America.” The

website also provided the following warranty: “[We are] so confident that our quality meets or exceeds

industry standards that we will match any competitor’s writ ten warranty and extend that warranty by one

year.”5 the terms and conditions nor was she ever asked to do so by Hampton

. On June 15,

2015, Ybarra wired $60,000 .00 to Certified Value

. Hampton sent Ybarra another invoice

on June 22 , 2015, confirming receipt of the wire transfer ; the invoice also contained

attached terms and conditions

. Ybarra submitted four requests for design modifications

after payment ; t he l ast request was made on October 9, 2015, the day before the

projected start of installation. 5 Installation was completed in November 2015. 6 Ybarra

testified she was never billed for any modification requests.

Ybarra said she initially believed she “ had the safest playground you could possibly

have ” for about six months until “ things [began] happening

. ” Ybarra testified she began

to notice construction defects and problems indicating substandard materials had been

used in the construction of the play center. Ybarra said , for example, she observed holes

in the netting, exposed metal and fitting bolts, lan dings breaking, train tracks sliding, and

cracks at the bottom of the slide. Ybarra testified that Hampton failed to respond to

Ybarra ’ s repeated requests for repairs or assistance

. Although Hampton initially made

assurances via e

- mail that any missing equipment or materials requiring replacement

would be addressed, Hampton ceased communicating by March 2016

. 7 In an alternative

attempt to rectify the play center deficiencies, Ybarra contacted Certified Value’s

competitor, IPlayCo

, but IPlayCo refused to “ take on ” any play center made by Certified

5 It is unclear from the record when Ybarra approved the final design for the play center. The

invoices on June 15 and June 22 stated that a “[f]inal revision to toddler area and design book will replace

this design” and an “[e]xtra kidsteam car [was] to be provided in [the] final design.”

6 Although appellee held a grand opening on November 11, 2015, Ybarra disputes that the play

center was completed at the time because several components were still missing or had not been installed,

such as “[a]ctivity panels and some additional toy blocks and other items on the floor that were toys that go

in the toddler area.”

7 In an e

- mail dated March 31, 2016, from Ybarra to Hampton, Ybarra complain ed of incompl ete

and missing equipment, including a balance beam, aluminum train cars, and roofing for a playscape. No

response from Hampton is indicated in the record.6 Value

. I P lay C o proposed the creation of new play center in the amount of $238,604.00.

Ybarra stated that, based on estimations she received, Certified Value’s play center was

worth $15,000.00 in salvage value before commission or shipping costs.

2

. Celeste Rittgers

Rittgers testified she previously worked performing “ data entry ” at a company

owned by Ybarra ’ s husband. Rittgers lost her job after the company dissolved. Rittgers

testified that around January 2015, Ybarra reached out to her with a “ business she was

thinking about and wanted to know if [Rittgers] could help her. ” Rittgers said the two began

conducting research, “ trying to figure out what we were going to do to start the company [,]

the things that we needed. ” They settled on an indoor play area.

Rittgers testified she could “ remember distinctly looking at three different websites ”

for potential indoor play equipment system manufacturers. Of the three companies

Rittgers contacted, only appellants responded. In May 2015, contact between Rittgers

and Hampton was “ almost daily. ” By the May trip to Dallas, over twenty e

- mail s had been

exchanged and “ at least ten to [fifteen] phone calls. ” Rittgers testified, “ [Hampton] sold

his equipment. He sold himself. He was a very good salesman. [H] e gave

— gave us no

reason to believe that everything he said wasn ’ t true. ” According to Rittgers, Hampton

reinforced the information contained on Certified Value’s website, said “ [e]verything was

manufactured by them, ” promised to “ work with us on as many designs ” as needed, and

boasted about meeting ASTM standards

— although she and Ybarra did not know what

ASTM standards were. Rittgers testified she and Ybarra left the meeting “ pumped and

excited to get a design picked

. ”7 From May to September 2015, 8 Rittgers was the sole point of contact on behalf of

appellee. Rittgers testified that problems with appellants arose prior to construction during

the shipment of materials when appellants began transporting equipment by piecemeal,

rather than the agreed upon single shipment, creating storage complications for appellee

.

Rittge rs asserted that

, contrary to appellants ’ promises

, the installation process was

disorganized and did not result in a “ turnkey ” play center

.

3

. Melanie Short

Appellee ’ s expert, Melanie Short, testified she was asked to “ perform a playground

safety audit of the soft contained playground equipment .” At the time that Short prepared

th e audit

, she was a certified playground safety inspector

, but she has since let her license

lapse

. Short explained her certification was through the National Parks and Rec reation

Association which required that she attend a “ three

- day intensive class session

, ”

reviewing “ the outdoor playground ASTM standard and all the associated ones, ” followed

by a pass/fail exam to obtain certification

. Short testified she remains a member of

ASTM ’s Building Enclosure and Playground Safety section s

.

According to Short, when conducting an audit, the auditor will review the entire

facility for four levels of concern, ranging f rom “ hazard level one, ” which indicates an

“ imminent threat ” of “ permanent d isa bility basically or death, ” to level four, which “ is

basically deferred maintenance. ” Short testified she found thirty level one and level two

violations following her review of the play center buil t by appellants

. Short maintained the

violations had nothing to do with maintenance concerns, but rather, reflected installation

8 Rittgers ended her employ ment with appellee in November 2015 after she became pregnant. Her

title changed three times in the period she worked for appellee. Rittgers initially held the title “business

manager,” which was later changed to “operations coordinator.” At the time she left her position, Rittgers

was the “social media administrator and event s coordinator.”8 and design defects. For example, Short testified the re were multiple areas that lacked

safety enclosures, allowing for children to get behind or underneath equipment. Short

additionally testified that “ anyone representing compliance with [ASTM] F1918, ” was

required to, pursuant to ASTM rules, “ keep all the essential records necessary to

document any claim that the requirements have been met and that includes those things

like fire testing and

— and such that require certifications

. ” Short stated that although she

did receive some certifications from appellants

, she was “ unable to match those with

some of the materials ” used in the play center.

Short summarily opined : “ [T]he soft contained playground equipment provided by

and installed at [appellee ’ s business] by [appellants] contained numerous defects and

hazards that violated ASTM F1918

- 12, the standard safety performance specification for

soft contained play equipment, as presented in my audit. ” Short concluded that

, given the

number of high

- level hazards identified, the “ majority ” of the play area require d a redesign

and a reinstallation to meet ASTM compliance

. On cross

- examination, Short acquiesced

that there are no regulations in Texas that require ASTM certifications on play equipment.

4

. John Hampton

According to Hampton, he began Certified Value in 2001 primarily as a consulting

business, but it “ morphed ” into a manufacturing company between 2008 and 2010,

beginning with Kidsteam, an electric trackless train line. In 2010, Certified Value began

manufacturing play centers, marketed towards family entertainment centers, churches,

and health clubs. Hampton testified the company has completed between 150 and 200

play centers nationwide and internationally since 2010. Hampton testified that, in addition

to manufacturing play systems and trains, the company also acts as “ a wholesaler on9 inflatables if that ’ s what the customer would like in addition to our other products that we

sell to them. ”

When questioned regarding the sourcing of products used for play center

installations

, Hampton testified that Certified Value u s es “ one of the largest North

American rotomolding plastics manufacturers ” based out of Canada for its plastic

products

, and China

- based supplier s provide s teel and a ll play netting. In 2015, at the

time he contracted with appellee, Hampton testified Certified Value had a warehouse in

Dallas, where they also did “ light fabrication

, ” and a “ factory in China that [appellants]

control [ed]

. ” The factory was responsible for “ stamping, welding, machining, [and]

assembly work. ” All “ in

- house designers ” were also based out of “ the China office. ”

Hampton maintained he was able to keep costs low by contracting out design and

installation work and purchasing materials in bulk.

When asked whether Certified Value ’s website’s statement “North American

made” was misleading, Hampton testified that this statement was intended to convey that

“the bulk of the cost associated with the manufacturing of this product and the installation

of this product is done by North Ame rican people.” Hampton admitted that

, despite his

website indicating in 2015 that he was a member of ASTM and the International

Association for Amusement Parks and Attractions ( IAAPA )

, his membership had lapsed

for failure to pay dues. Hampton disagreed that the continued use of these logos on his

website was to “ convince people that [he] w[as] something that [he] w[as] not. ” Moreover,

Hampton stated he believed ASTM standards had been followed when applicable in the

design and installation of appellee ’ s play center.10 Hampton at tributed the project start date delays to appellee, stating that appellee ’ s

final request for alterations to the design , which partly concerned alterations to the

center’s ceiling, occurred on the last day materials were scheduled to be transported to

appellee ’ s facility. “ We already had the truck loaded and

— and based on what the e

- mail

said[,] [I] became very concerned, ” said Hampton, who declined to “ send the team down

there ” because they were “ not going to be able to begin erecting the system or doing

anything because now there ’ s all these constraints on the ceiling. ” Hampton said it was

then that he made the “ decision to personally go down to the site ” to unload the materials

himself, conduct necessary measurements, and “ regenerate ” the control design

documents. Hampton testified the company made no profit on this project. Hampton

further stated that, contrary to Ybarra ’ s claims, he had responded to her complaints after

the project was completed and believed all outstanding issues had been resolved

.

Hampton further disputed that there had been any oral contract between the

parties. Hampton testified that he and appellee executed a written contract

— in the form

of a “ Terms and Conditions of Sale ” document attached to an invoice

— which explicitly

disclaimed the oral representations appellee asserted at trial he had made

. 9 Hampton

said Ybarra signed the terms and conditions and returned it to him via mail, and the

document had been put in a file at his facility, but it was inadvertently “ thrown out

sometime before this lawsuit even started. ”

9 The terms and conditions included a disclaimer of “any reliance on any representations,

documents, statements, acts or omissions made by or through any representative, affiliate, agent, or

principal of Certified Value

. . . . ” All modifications to the order were also subject to additional fees under

the terms and conditions. Moreover, while the terms and conditions included provisions citing to the ASTM,

the document only stated that Certified Value recommends purchasing items “to comply with ASTM” but

indicated that “such expense is not contemplated nor included in the Order.”11 When asked about his countersuit, Hampton stated he sought to be “ reimbursed

for added expenses associated with the project. ” Hampton maintained he never

previously requested those expenses from appellee and had never requested similar

expenses from previous clients, but he thought, “ Well, we might as well try to get some

of these expenses back, ” after appellee filed suit. Hampton also sought to hold appellee

accountable for sending intellectual property to his competitor

, I P lay C o

. “ [Appellee] sent

a document that basically can be reverse [] engineered from that, [to] get an understanding

of our margins and our cost structure, and from that [,] since we compete in a lot of the

same markets currently

, they can actually effectively compete more efficiently and

effectively on each bid

, ” explained Hampton.

On cross

- examination, Hampton testified that he has an educational background

in finance and became familiar with worldwide distribution channels when working for a

steel manufacturer. Hampton conceded he otherwise had no special training or

certifications for the construction or the development of a play center

, and he lacked any

licensing, permitting, or experience with architectural engineers with respect to play

centers

.

5. Jeffrey Dillard & Gregory Kazel

Two former contractors for appellants also testified. Jeffrey Dillard testified he had

built play centers for appellants since 2012 in connection with his business, Handy Work

Services. Dillard testified he was contacted regarding appellee ’ s project in September

2015 and traveled to C orpus Christi in October 2015 to assist in the installation. Dillard

testified he was immediately informed of a protruding duct system that required a change

of the play center ’ s h e igh t configuration s

. Dillard testified they “ had to take all the pieces12 out and start cutting [steel] ” on

- site. Dillard installed “one

- third to two

- thirds” of the play

center but was unable to complete installation

, citing a medical emergency involving his

wife that required him to take leave

. On cross

- examination, Dillard confirmed he was not

a forensic architect, certified playground safety inspector, or expert on ASTM standards.

Dillard testified he relied on Hampton to make sure the projects were in compliance with

any applicable standards.

George Kazel, owner of GW Kazel Kid Systems, testified he took over installation

after Dillard departed. Kazel stated that, i n the last ten years, he has constructed

“ probably 150 ” play centers for appellants

, and at least h alf of the systems had been

“ constructed internationally. ” Kazel, a member of the American Society of Civil Engineers,

testified he also holds an amusement ride inspector license in Pennsylvania.

Kazel testified he was in Corpus Christi for “ around a week ” to complete the play

center

, and he arrived after the main steel frame had been installed

. Kazel assisted in the

installation of the double helix slide, train, and ball fountain. According to Kazel, it was not

uncommon for appellants to receive requests from a client for repairs or modifications

following an installation

. “ [Clients] would typically contact [Hampton] and then [Hampton]

would contact either myself or

. . . some other installation staff who would then go out and

make the repair or do the

— do the work that was needed, ” testified Kazel

. Kazel

maintained Certified Value had “ never ” refused a repair request from a customer in the

ten years he had worked with appellants

.13 B

. Judgment

Appellants moved for a directed verdict on appellee’s claims

, 10 which the trial court

denied. Appellee waived its causes of action for negligence, negligent hiring

, and

negligent misrepresentation

, and t he jury found in favor of appellee for its remaining

claims for breach of contract, fraud, breach of warranty

, and violations of the DTPA.

On June 24, 2018, the trial court entered a f inal j udgment in favor of appellee in

the amount of $119,762.03, 11 plus equitable pre

- judgment interest

, and reasonable

attorney ’ s fees to date in the amount of $325,000.00, plus attorney ’ s fees of $50,000.00

for any unsuccessful appeal by appellants to the court of appeals ; and $25,000.00 for any

unsuccessful appeal by appellants to the Supreme Court of Texas.

On July 12, 2018

, appellants

, presenting substantially similar arguments as in their

motion for directed verdict, filed a motion for JNOV

, which the trial court denied. This

appeal followed.

II. S UMMARY J UDGMENT

By their first issue, appellants contend that the trial court erred when it denied their

partial no

- evidence and traditional motion s for summary judgment

. However, the denial

of a motion for summary judgment is not reviewable after a trial on the merits

. Schack v.

Prop. Owners Ass ’ n of Sunset Bay

, 555 S.W.3d 339, 353

– 54 (Tex. App.

— Corpus Christi

–

Edinburg 2018, pet. denied) ( “ Because the trial court ’ s denial of the motion for summary

judgment was followed by a trial on the merits

, we cannot review the trial court ’ s denial of

10 In their motion for directed verdict, appellants argued (1) appellee was not a consumer under the

DTPA and therefore could not recover under its DTPA claim; (2) appellee’s fraudulent inducement claim

fails because there was no executed contract; (3) appellee produced no evidence of reliance and negated

reliance in its DTPA , fraud, and negligent misrepresentation claims by undertaking an independent

inv estigation; and (4) appellee presented no evidence that appellants breach ed its warrant y

.

11 Exemplary damages were not awarded.14 summary judgment. ” ) ; Hines v. Comm ’ n for Lawyer Discipline

, 28 S.W.3d 697, 700 (Tex.

App.

— Corpus Christi

– Edinburg 2000, no pet.) (concluding that we are without jurisdiction

to review a trial court ’ s denial of a motion for summary judgment following a trial on the

merits ). Here, after the trial court denied appellants ’ motion s for summary judgment

, it

held a trial on the merits

. Accordingly, we are unable to review the trial court’s denial. See

Schack

, 555 S.W.3d at 353

– 54 ; see also Garcia v. Perez

, No. 13

- 17

- 00673

- CV, 2019 WL

2221674, at *3 (Tex. App.

— Corpus Christi

– Edinburg May 23, 2019, no pet.) (mem. op.)

.

We overrule appellants’ first issue.

III. D IRECTED V ERDIC T & JNOV

By issue two, appellants argue the trial court erred in failing to grant its motions for

directed verdict and JNOV.

A. Standard of Review & Applicable Law

Upon a party’s motion and reasonable notice, a trial court may disregard a jury

verdict and render a JNOV if a directed verdict would have been proper. See T EX

. R. C IV

.

P. 301; Gharda USA, Inc. v. Control Sols., Inc. , 464 S.W.3d 338 , 347 (Tex. 2015). An

instructed verdict for a defendant is proper when (1) a plaintiff fails to present evidence

raising a fact issue essential to the plaintiff ’ s right to recover, or (2) the plaintiff admits or

the evidence conclusively establishes a fact that establishes the movant ’ s right to

judgment as a matter of law

. Edwards v. Chevrolet

, 605 S.W.3d 219, 222 (Tex. App.

—

Fort Worth 2020, no pet.) (citing Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc.

, 29

S.W.3d 74, 77 (Tex. 2000); McCullough v. Scarbrough, Medlin & Assocs

. , Inc.

, 435

S.W.3d 871, 884

– 85 (Tex. App.

— Dallas 2014, pet. denied)). Edward s , 605 S.W.3d at

222.15 We review a trial court ’ s denial of a directed verdict or JNOV under a no

- evidence

standard, examining whether legally sufficient evidence supports the jury ’ s findings.

Gharda USA

, 464 S.W.3d at 347

. We must “‘ credit evidence favoring the jury verdict if

reasonable jurors could, and disregard contrary evidence unless reasonable jurors could

not, ’” and we will uphold the jury ’ s finding if more than a scintilla of competent evidence

supports it. Tanner v. Nationwide Mut. Fire Ins. Co.

, 289 S.W.3d 828, 830 (Tex. 2009)

(quoting Cent. Ready Mix Concrete Co. v. Islas

, 228 S.W.3d 649, 651 (Tex. 2007)) ; see

Gharda USA

, 464 S.W.3d at 347; City of Keller v. Wilson

, 168 S.W.3d 802, 827 (Tex.

2005) ( “ The final test for legal sufficiency must always be whether the evidence at trial

would enable reasonable and fair

- minded people to reach the verdict under review. ” ).

At trial, a ppellants moved for directed verdict and JNOV on appellee ’ s DTPA,

fraud

, breach of contract , and breach of warranty claims. 12

B. Breach of Warranty

With respect to their breach of warranty argument, a ppellants principally assert

that, a ssuming arguendo that the statement s on the Certified Value website created a

warranty, appellee cannot recover “because it never requested that [appellants] match it.”

Appellee submitted the following breach of warranty theories to the jury: (1) failure

to comply with an express warranty of “any affirmation of fact or promise made by

[appellants]”; (2) failure to furnish or select goods suitable for a particular purpose; and

(3) failure to perform services in a good and workmanli ke manner. See Nghiem v. Sajib

,

567 S.W.3d 718, 724 n.33 (Tex. 2019) (recognizing the implied warranties in Texas,

12 Appellants additionally argued in their motions that the evidence did not establish that Hampton

received a direct, personal benefit from any purported perpetration of fraud; thus, he cannot be held liable

under § 21.223 of the Texas Business Organization s Code. See T EX

. B US

. & C OM

. C ODE A NN

. § 21.223.

Appellants present no such independent argument on appeal

.16 which include: the implied warranty of good and workmanlike construction, the implied

warranty of fitness for a particular purpose, and the i mplied warranty of workmanlike

repairs of tangible goods or property); Lester v. Logan , 893 S.W.2d 570, 574 (Tex. App.

—

Corpus Christi

– Edinburg 1994), writ denied , 907 S.W.2d 452 (Tex. 1995) (per curiam)

(providing that implied warranty of fitness for a par ticular purpose applies “where a seller,

at the time of contracting, has reason to know any particular purpose for which the goods

are required and that the buyer is relying on the seller’s skill or judgment to select or

furnish suitable goods”). On appeal, a ppellants only challenge one element of appellee’s

breach of express warranty claim and provide no mention of appellee’s implied warranty

claims.

Because appellee only needs to prevail on one of its three submitted breach of

warranty theories to sustain the judgment, and liability under either implied warranty

theory remains unchallenged, we need not address the correctness of the trial court’s

conclusion on appellee’s express warranty theory

. See St. John Missionary Baptist

Church v. Flakes , 595 S.W.3d 211, 213 (Tex. 2020) (per curiam) ( providing that if the

appellant fails to challenge all possible grounds, the reviewing court must accept the

validity of the unchallenged grounds and affirm the adverse ruling) ; U.S. Lawns, Inc. v.

Cast illo , 347 S.W.3d 844, 846 (Tex. App.

— Corpus Christi

– Edinburg 2011, pet. denied);

see also Perez

- Montes v. Live Oak Constr., Inc. , No. 13

- 13

- 00674

- CV, 2015 WL

2352423, at *2 (Tex. App.

— Corpus Christi

– Edinburg May 14, 2015, no pet.) (mem. op.)

(“If an indepe ndent ground fully supports the complained

- of ruling or judgment, but the

appellant assigns no error to that independent ground , then (1) we must accept the validity

of that unchallenged independent ground

. . . .”). Similarly, we need not address17 appellants’ remaining challenges to appellee’s claims for DTPA, fraud, or breach of

contract where j udgment in favor of appellee survives on appellee’s breach of warranty

claim alone. See T EX

. R. A PP

. P . 47.4; Flakes , 595 S.W.3d at 213 ; S.W. ex rel. A.W. v.

Arlington Indep. Sch. Dist. , 435 S.W.3d 414, 419 (Tex. App.

— Fort Worth 2014, no pet.)

(“[A]ny error in the grounds challenged on appeal is harmless because the unchallenged

independent ground fully supports the complained

- of ruling or judgment.” ).

Thus, w e overrule appellants’ second issue.

IV. J URY C HARGE

By issues three and four

, a ppellants argue the trial court abused its discretion in

(1) failing to include a specific jury question on “ the existence of a signed written

agreement between the parties

. . . as a predicate to the jury question for fraudulent

inducement ” and (2) including fraud as a cause of action in the jury cha rge when the

pleadings only alleged fraudulent inducement

.

The trial court has considerable discretion when determin ing proper jury

instructions. Gunn v. McCoy

, 554 S.W.3d 645, 675 (Tex. 2018)

. We review a trial court ’ s

decision to submit or refuse a particular instruction under an abuse of discretion standard

of review

. Id. (citing T hota v. Young

, 366 S.W.3d 678, 687 (Tex. 2012 ) ). An instruction is

proper if it assists the jury, accurately states the law, and finds support in the pleadings

and evidence. Id. (citing Columbia Rio Grande Healthcare, L.P. v. Hawley

, 284 S.W.3d

851, 855

– 56 (Tex. 2009) )

. We will not reverse a judgment for a charge error unless that

error was harmful because it “ probably caused the rendition of an improper judgment

. ”

S ee T EX

. R. A PP

. P

. 44.1(a) (1) ; Thota

, 366 S.W.3d at 687

. “ Charge error is generally

considered harmful if it relates to a contested, critical issue. ” Hawley

, 284 S.W.3d at 856;18 see Quantum Chem. Corp. v. Toennies

, 47 S.W.3d 473, 480 (Tex. 2001) ( “ An improper

instruction is especially likely to cause an unfair trial when the trial is contested and the

evidence sharply conflicting

. ” )

.

A. Predicate Question

Here, appellants objected to the inclusion of question seven in the jury charge,

which stated in part: “ Did any [sic] Certified Value or John Hampton commit fraud against

Infinite Play? ” Appellants argue th e trial court should have included a predicate question

regarding the requirement of a signed, written agreement because a fraudulent

inducement claim fails absent the existence of an executed written contract. 13

Fraudulent inducement is a particular class of fraud that arises only in the context

of a contract and requires the existence of a contract as part of its proof. Anderson v.

Durant , 550 S.W.3d 605, 614 (Tex. 2018) ; Haase v. Glazner, 62 S.W.3d 795, 798 (Tex.

2001) (“Without a binding agreement, there is no detrimental reliance, and thus no

fraudulent inducement claim.”); Formosa Plastics Corp. USA v. Presidio Eng’rs &

Contractors, Inc.

, 960 S.W.2d 41, 46 (Tex. 1998) (“As a rule, a party i s not bound by a

contract procured by fraud.” ). Like a broader common

- law fraud claim, a fraudulent

inducement claim requires proof that: (1) the defendant made a material

misrepresentation; (2) the defendant knew at the time that the representation was fa lse

or lacked knowledge of its truth; (3) the defendant intended that the plaintiff should rely

or act on the misrepresentation; (4) the plaintiff relied on the misrepresentation; and

(5) the plaintiff’s reliance on the misrepresentation caused injury. Int ’l Bus. Machines

13 It is unclear what specific instruction appellants requested. On appeal, appellants refer us to the

reporter’s record, wherein appellants’ referen ce their proposed jury charge, which spans sixty

- seven pages

and incorporates thirty

- six questions. Appellants do not specify, either at the trial court or on appeal, which

question from its proposed charge it sought to precede question seven of the charge as finally submitted.19 Corp. v. Lufkin Indus., LLC , 573 S.W.3d 224, 228 (Tex. 2019) (citing Anderson , 550

S.W.3d at 614).

W e observe that the Texas Supreme Court has already examined whether a

fraudulent inducement claim can survive when evidence at trial indicated that the binding

agreement at

- issue “was never reduced to writing” and “the terms of the deal [we]re

disputed.” Anderson , 550 S.W.3d at 610. The Court answered this question in the

affirmative, noting that the fraudulent

- i nducement jury questions incorporated the

necessary elements for recovery

— the elements of an enforceable contract

— and holding

that the existence of an enforceable contract there, albeit oral, was supported by legally

sufficient evidence. Id. at 624

– 25. Alt hough “without a binding agreement, there is no

detrimental reliance, and thus no fraudulent inducement claim,” the binding agreement

need not be written. See id. at 617. Thus, we are unpersuaded by appellants ’ assertion

that appellee’s fraudulent induceme nt claim fails without an instruction requiring evidence

of a written contract.

Accordingly

, the trial court did not abuse its discretion in refusing the incorporation

of such instruction. See Gunn

, 554 S.W.3d at 675 (providing that the instruction is proper

if it, in part, accurately states the law)

. We overrule appellants ’ third issue.

B. Waiver

In their fourth issue, a ppellants object to the court ’ s inclusion of an instruction on

appellee ’ s fraud claim, which it alleges did not conform with the pleadings because

appellee “ did not plead fraud, but only fraudulent inducement

. ”

To preserve error in the jury charge, the complaining party must timely and plainly

make the trial court aware of the complaint and obtain a ruling. See T EX

. R. C IV

. P. 27420 (requiring a party objecting to a charge to point out distinctly the objectionable matter and

the grounds of the objection) ; see also Thota, 366 S.W.3d at 689 ; Brannan Paving GP,

LLC v. Pavement Markings, Inc.

, 446 S.W.3d 14, 19 (Tex. App.

— Corpus Christi

–

Edinburg 2013, pet. denied)

. Moreover, to preserve error for appeal, the complaining

party ’ s argument on appeal must comport with its objection in the trial court. Thota, 366

S.W.3d at 689; see T EX

. R. A PP

. P

. 33.1. Appellants made no such objection

— specific or

otherwise

— at the charge conference on the basis argued on appeal

. 14 Therefore

,

appellants did not preserve this issue for our review. See T EX

. R. A PP

. P . 33.1; T EX

. R.

C IV

. P. 274

. Appellant s ’ fourth issue is overruled

.

V. E XPERT T ESTIMONY

By appellants ’ fifth issue, appellants argue the trial court erred in admitting the

testimony of appellee ’ s expert witness because she was “ not qualified and her testimony

was not reliable under Robinson

. ” See E.I. du Pont de Nemours & Co. v. Robinson

, 923

S.W.2d 549, 556 (Tex. 1995).

We review a trial court ’ s rulings on the admissibility of evidence for an abuse of

discretion, including rulings on the qualification and reliability of expert testimony. Gharda

USA

, 464 S.W.3d at 347. Qualified experts may offer opinion testimony if that testimony

is both relevant and based on a reliable foundation. Innovative Block of S. Tex., Ltd. v.

Valley Builders Supply, Inc.

, 603 S.W.3d 409, 422 (Tex. 2020). Expert opinion testimony

is relevant when it is “ sufficiently tied to the facts of the case [so] that it will aid the jury in

resolving a factual dispute. ” Id. (quoting Robinson

, 923 S.W.2d at 556 ). Although

14 Appellants cite to two pages in the record wherein the objection was purportedly made, but a

review of the record indicates only a challenge to the denial of appellants’ request for a predicate question

regarding the necessity of a written contract.21 reviewing c ourts generally determine the reliability of an expert ’ s chosen methodology by

applying the Robinson factors

, “ [ w ]hether an expert ’ s testimony is reliable is based on

more than whether the expert ’ s methodology satisfies the Robinson factors. ” Gharda

USA

, 464 S.W.3d at 34 8

– 49 (citing Helena Chem

. Co. v. Wilkins

, 47 S.W.3d 486, 499

(Tex. 2001) ). Expert testimony is unreliable “ if there is too great an analytical gap between

the data on which the expert relies and the opinion offered. ” Id. at 349 (quoting

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904

– 05 (Tex. 2004) )

. “ Whether an

analytical gap exists is largely determined by comparing the facts the expert relied on, the

facts in the record, and the expert ’ s ultimate opinion. ” Id.

Appellants ’ brief, however, provides no analysis or application of the Robinson

factors nor does it indicate what analytical gap was present to render the expert ’ s opinion

unreliable

. See Gharda USA

, 464 S.W.3d at 348

– 49; Robinson

, 923 S.W.2d at 556.

Appellants instead refer this Court to its trial record filings and trial arguments on this

issue. 15 Appellee asserts appellants have therefore waived this argument, and we agree.

See T EX

. R. A PP

. P. 38.1(i) (“The brief must contain a clear and concise argument for the

contention made, with appropriate citations to authorities and to the record.”).

“ Existing legal authority applicable to the facts and the questions we are asked to

address must be accurately cited and analyzed. ” Goodenberger v. Ellis

, 343 S.W.3d 536,

15 App ellants brief states in applicable portion:

For the reasons cited in Defendants’ Objections and Reply to Plaintiff’s Response for

Summary Judgment Evidence, Defendant’s Motion to Exclude[,] and as argued before the

Court, Short’s testimony was not reliable under the Robinson factors. As more described

fully in the aforementioned portions of the record, Ms. Short: (a) admitted she was not an

expert on reliance; (b) admitted she relied upon a subjective standard of care; (c) was not

even certified in the applicable suggested gui delines of ASTM F

- 1918; (d) did not have all

of the relevant information and (e) reached contradictory conclusions and failed to rule out

other options.22 539 (Tex. App.

— Dallas 2011, pet. denied) ; see T EX

. R. A PP

. P. 38.1; Schack

, 555 S.W.3d

at 354 ; Armhein v. Bollinger

, 593 S.W.3d 398, 401 (Tex. App.

— Dallas 2019, pet. denied)

( “ The right to appellate review in Texas extends only to complaints made in accordance

with our rules of appellate procedure, which require an appellant to clearly articulate the

issues we will be asked to decide, to make cogent and specific arguments in support of

its position

. . . ” )

. “ A claim of error on appeal must be argued in the party ’ s brief; it is

insufficient simply to refer the appellate court to the party ’ s trial court arguments. ” Allen v.

United of Omaha Life Ins. Co.

, 236 S.W.3d 315, 325 (Tex. App.

— Fort Worth 2007, pet.

denied); Guerrero v. Tarrant Cty

. Mortician Servs. Co., 977 S.W.2d 829, 832

– 33 (Tex.

App.

— Fort Worth 1998, pet. denied) ( “ Were we to approve of this tactic, appellate briefs

would be reduced to a simple appellate record reference to a party ’ s trial court arguments.

Additionally, this would be an open door for parties to circumvent the appellate brief page

limitations. ” ) ; see T EX

. R. A PP

. P. 38.1; see also State Farm Lloyds v. Vega

, No. 13

- 16

-

00090

- CV, 2018 WL 1773304, at *13 (Tex. App.

— Corpus Christi

– Edinburg Apr. 12, 2018,

no pet.) (mem. op.) (finding issue waived where appellant argued : “ For the reasons

outlined in Issues I, II, and III, there is legally insufficient evidence supporting the judgment

on the contract, extra

- contractual, and attorney fees claims ” ); Gonzales v. State Farm

Lloyds

, No. 13

- 05

- 00 730

- CV, 2006 WL 2327259, at *3 (Tex. App.

— Corpus Christi

–

Edinburg Aug. 10, 2006, pet. denied) (mem. op.) (refusing to “ incorporate arguments

presented in other matters ” and considering only “ the contention discussed in in their brief

in support ” ). Appellants have therefore failed to adequately brief their complaint, and th is

issue is waived. See T EX

. R. A PP

. P. 38.1; Ellis

, 343 S.W.3d at 539. We overrule

appellants ’ fifth issue

.23 V I. C ONCLUSION

We affirm the trial court’s judgment

.

NORA L. LONGORIA

Justice

Delivered and filed on the

4th day of February

, 202 1

.