### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00483- CV

Trinity Mater ials, In c., Appellant

v. Carr oll San som , Jam es Sansom, and Robert C oe, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0410 5, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Trinity Materia ls, I nc. appea ls the district court’s judgme nt on a jury verdic t in favor of appellee s Carroll Sansom, J ames Sansom, and Robert Coe (L andowne rs) in a brea ch of contra ct suit. W e will aff

irm the district court’s judg ment.
Background Trinity and the L andowne rs entered int o a sand and gra vel m ining le as e (L ease ) i n 1999. The land cover ed by the L ease consists of three proper ties owned by the L andowne rs—a 104-

acr e trac t, a 139-ac re trac t, and a 176-ac re trac t. Trinity did not beg in mining on the L ease proper ty immediately and instead paid advanc e roy alties to the L andowne rs eac h y ear as allowed under the L ease . I n 2003, citizens living in the are a n ea r t h e L andowne r’s proper ty incorporated the Villag e of We bberville. The Villag e Council enac ted sever al ordinanc es that require d mining permits and cre ated zoning reg ulations that wer e applicable to the ty pe o f mining cover ed in the
L ease .These ordinanc es impeded Trinity ’s ability to mine on the L ease proper ty and,
in response , Trinity proposed sever al solutions to the L andowne rs, including challeng ing the constitutionalit y

of the ordina

nces, tolling the L ease until the i mpediments could be resolved, and attempting to me et the ordinanc e require ments by re- zoning the L ease proper ties from ag ricultural
to sand-a nd-g rave l classifica tion and o btaining the requisite permits. The re- zoning solution was
propose d afte r Trinity had convince d the Villag e to add a less restric tive sand-a nd-g rave l zoning classifica tion to the ordinanc es, but when Trinity asked the L andowne rs to sign the re- zoning forms, the L andowne rs re sisted. I n response , Trinity filed sui t ag ainst the L andowne rs, claiming that the
L andowne rs wer e contra ctually obliga ted under the L ease to assist in Trinity ’s re- zoning eff orts by
ag ree ing to r e-zone the thre e L ease proper ties. Despite i t s p en d i n g suit, Trinity decide d to move forwa rd with mining the portions of the L ease proper ty located in the Villag e’s extra-terr itorial jurisdiction (ETJ)—area s they believed wer e outside the scope of the mining an d z o n i n g o rd inance s. I n acc ordanc e with L ease

re q uirements, Trinity submitt ed a mining plan to the L andowne rs for their approva l on J une 22,
2010. The L andowne rs reje cted the plan on J uly 22, 2010, claiming that the details in the plan wer e insufficient. Despite this reje ction, Trinity beg an moving mining equipment onto the proper ty , 1 prompting the L andowne rs to obtain a temporar y restra ining order to stop the activity

. Trin ity

The mining plan submitt ed by Trinity was approximately half a pag e in le ng th. The plan 1 briefly descr ibed the are a to be mined, listed th e order and portions of the trac ts to be mined, identified one trac t that was not to be mined due to insufficient deposits, aff irmed that all work would be done acc ording to industry standards, and descr ibed how the materia ls would be remove d from the proper

ty and h o w the land would be rec laimed. Both parties prese nted expert witness testimony during the trial rela ted to the sufficie ncy of the plan. Trinity ’s witness , J er ry M cC ali p t es t i fi ed that the plan was sufficie nt acc ording to industry standards. The L andowne r’s witnes s , Ricky Way

ne Thomas, claimed that the plan was defic ient and should have included many more details. 2submitt ed a second mining plan to the L andowne rs on Aug ust 27, 2010, that was near ly identical to

the first plan, but included specific ations for a road for ingr ess and eg ress. The L andowne rs did not respond to the s econd plan in writing , but expressed their rejection of it at a hear ing relate d to the
TRO on September 8, 2010. On October 13, 2010, the L andowne rs obtained a temporar y injunction
ag ainst Trini ty ’ s mining opera tions, but it was conting ent upon a $150,000 bond that the L andowne rs

never filed.
Meanw hile, Trinity sent a reque st to the Villag e for al l ap plicable zoning and mining ordinanc es, but the City ’s response did not include any that applied to the ETJ

. So, despite
not having an approved m i n i n g plan from the L andowne rs, but believing their actions to be in

acc ordanc e with the Vil lag e’s ordinance s, Trinity decide d to mine in the ETJ

. On November 12, 2 2010, Trinity beg an mining on the L ease ’s 104-ac re trac t. Th e Villag e obtained and delivere d to Trinity at the mining site a stop-work order and TRO. Trinity ’s employ ees, believing the order s to be er roneously issued, continued wor

king f or seve ral more hours until a piece of equipment broke down and forc ed them to stop. Trinity did not resume mining opera tions at the site. Soon there afte r, the Villag e sued both Trinity and the L andowne rs fo r fa i l u re to comply with newly enac ted Site
Deve lopment Ordinanc es only then broug ht to Trinity ’s attention.
O n D e c e mb e r 1 7 , 2 0 1 0 , T rinity submitt ed a third mining and construction pla n , w h ic h included a few additional details, including a t imeline for complet i o n and a map of t he road to be used for ingr ess and eg ress. The L andowne rs reje cted this plan on J anuar y 7, 2011, explaining that it “suff ers from the same shortcoming s” as t h e p ri o r plans. A short time later, the L andowne rs

Two day s befor e Trinity beg an mining, the Villag e’s attorney sent an email to Trinity and 2 the L andowne rs, ref

ere ncing ordinanc es that applied to proper ty located in the ETJ

. This email, howeve r, did not contain copie s of the ac tual ordinanc es to which it ref err ed. 3soug ht indemnity from Trinity

in connec tion with the L andowne rs being included in the Villag e’s suit, specific ally seeking $36,338 for their leg al fee s incurre d betwee n November 3 throug h 30, 2010 under the L ease ’s indemnity clause

. Trinity

declined. 3 Trinity ’s suit ag ainst the L andowne rs finally we n t t o trial in Fe bruar y 2011. At trial, Trinity soug ht rec overy of its advanc e roy alty pay ments on two brea ch theories: (1) the
L andowne rs brea ched the L ease when they failed to cooper ate with the re- zoning eff orts; and (2) the
L andowne rs brea ched the L ease by unrea sonably withholding their approva l of Trinity ’s mining and construction plans. Following the prese ntation of evidenc e and arg ument s o f counsel, the
L andowne rs moved for a direc ted verdic t on the first of Trinity ’s b re ac h theories. The trial court
g rante d the L andowne rs’ motion, finding that the L ease cre ated no duty for the L andowne rs to ag ree
to re- zone their proper

ties and that the L andowne rs had not brea ched an implied covena nt when they ref used to do so. During the char g e confe renc e, Tri n i t y soug ht, but was denied, a question and rela ted instruction on the re- zoning issue, and the trial court advised the jury in the char g e that the 4
L andowne rs had made no express or implied promise to apply for re- zoning in the L ease . Acc ording ly , as to Trinity ’s claims, the jury was a sked only whether the L andowne rs had failed to comply with the L ease by “unre asonably withholding consent to a mining plan and/or construction plan,” to which the y

ultimately

responde d, “Ye s.”

The indemnity clause included in the L ease require s Trinity to indemnify the L andowne rs 3 for their attorney s’ fee s in defe nding ag ainst any claims arising from any penalty , damag e, or char g e imposed for the violation of any law or brea ch of the L ease by Trinity in the event the L andowne rs are made pa

rties to a lawsuit ag ainst Trinity

. Trinity made no other objections to the j ury char g e and, in fac t, aff irmatively s t ated that 4 it had no objections to the cha rg e. 4As to the L andowne rs, wh o h ad counter claimed seeking decla ratory relief and damag es o n four brea ch theories, the jury was simply asked whether Trinity had failed to comply with the L ease , to which the jury answe red, “Yes.” The jury was then asked, based on its finding s that both Trinity and the L andowne rs had failed to comply with the L ease , who had failed
to comply with the L ease first, to which it response d, “Trinity .” Next, having been g iven instructions direc ting it to answe r only cer tain questions depending on its answe rs to the first three questions, the jury deter

mined the L andowne rs’ damag es. Specifica lly , the jury found t h at T ri n ity should pay $25,000 to compens at e t he L andowne rs for their damag es and $532,023.28 to compensa te the
L andowne rs for attorney ’s fee s incurre d in the prese nt suit. After deny ing both parties’ motions to disreg ard the jur y ’s fi n d ings and Trinity ’s motion for judgme nt notwithstanding the verdic t, the district court enter ed judgme nt awa rding the L andowne rs $25,000 in compensa t o ry damag es and $497,023.28 in attorney ’s fe es. I t is from this judgment that Trinity now appe als. 5

Analysis Trinity raises six issues on appea l, a sking this Court to de termine (1) whether there is leg ally and fac tually sufficie nt evidenc e to support the jury ’s finding s that Trinity failed to comply with the L ease and that it f ailed to do so first; (2) whether the aff irmative defe nse of prior materia l brea ch can be predic ated on brea ch of an indemnification claus e; (3) whether the L andowne rs decision to trea t the L ease as continuing after T ri n i t y ’s alleg ed brea ch prec luded the L andowne rs fr o m rely ing on the excuse of prior materia l brea ch; (4) whether the trial court committ ed ch ar ge

err or by ref

using to include Trinity ’s requested j ury questions and ins truction; (5) whether leg ally

The district court also awa rded the L andowne rs appellate fee s of $25,000 and $10,000 for 5 unsucce ssful appea ls by

Trinity to the Court of Appea ls and Texas Supreme Court, re spectively

.

5and fac tually sufficie nt evidenc e supports the jury ’s $25,000 damag e awa rd; and (6) whether Trinity is enti tled to damag es and attorney ’s fee s as a matter of law beca use the jury found that the
L andowne rs fa iled to comply with the L ease . Trinity’s breach

The starting point for our analy sis of Trinity ’s evidentiar y -suffic iency challeng es to the jury ’s finding s reg arding Trinity ’s failure to comply with the L ease is the jury char g e. See 6 Osterberg v. Pec a , 12 S.W .3d 31, 5 5 (T ex . 2 0 0 0 ) (lega l sufficie ncy ); Golden Eagle Archery

, Inc.

v. Jack son , 116 S.W .3d 757, 76 2 (T ex . 2003) (“B efor e a court can proper ly conduct a fac tual sufficie ncy review , i t m u s t first have a clea r understanding of the evidenc e that is pertinent to its inquiry

. The starting point g ener ally is the char g e and instructions to the jury .”); Ancira Enters., Inc.

v. Fischer , 178 S.W .3d 82, 93 (Tex. App.—Austin 2005, no pet

. ). He re , q u estions 1 throug h 3
prese nted the jury with the questions reg arding the parties’ compliance with the terms of the L ease .

The standard of revie w for evidentiar y sufficie ncy is well known. We may sustain a leg al 6 sufficie ncy challe ng e only if the rec ord discloses one of the following situations: (a) a complete absenc e of evidenc e of a vital fac t; (b) the court is barr ed by rules of law or of evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (c) the evidenc e offe red to prove a vital fac t is no more than a mere scin t i l l a; o r (d) the evidenc e establishes conclusively the opposite of the vital f act. City of Keller v. W

ilson , 168 S.W .3d 802, 810 (Tex. 2005) (quoting Robert W. Calver t, “No Evidenc e” & “Insufficient Evidenc e” Points of Error , 3 8 T ex. L

. Rev. 361, 362–63 (1960))

. I n deter mining whether a finding is supported by leg ally sufficie nt evidenc e, we view the evidenc e in the light most favor able to the finding , “cr editing favor able evidenc e if rea sonable jurors could, and di s re gar d i n g contra ry evidenc e unless rea sonable jurors could not.” Id

. at 807. We indulge ever

y rea sonable infe renc e that would support the f inding. Id . at 822.
I n revie wing the fac tual sufficie ncy of the evidenc e, we consider and weig h all the evidenc e prese nted at t ri al , including any evidenc e contra ry to the judgme nt. Plas-Tex, Inc. v. U.S. Steel Corp ., 772 S.W .2d 442, 445 (Tex. 1989); Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). We se t aside a finding for fac tual insufficienc y if it is “so contra ry to the overw helming weig ht of the evidenc e as to be clea

rly wrong and unjust.” Cain , 709 S.W .2d at 176.

6Question 1, not c halleng ed on appea l, asked the jury , “Did the L andowne rs fail to comply with the

Sand and Gra vel L ease by unrea sonably withholding consent to a mining plan and/or a construction plan? ” Question 2 asked the J ury , “Did Trinity fail to comply with the Sand and Gra

vel L ease ? ” 7 8 Having answe red “y es” to both que stions 1 and 2, the jury was then instructed to a nswer Question
3: “Which of those named below failed to comply with the Sand and Gra vel L ease first? ” The jury responde d, “Trinity .”

Stated g ener ally , Trini t y ’s arg ument at trial was that it had fulfilled its obliga tion under the L ease by

pay ing the L andowne rs $705,000 in advanc e roy alties since 1999 and, in turn, that it had the rig ht under the L ease to mine the proper ty for sand and g rave l. But when it was rea dy
to exercise those mining rig hts, Trinity arg ued, and submitt ed three separ ate mining plans to the
L andowne rs for their approva l as re q u i re d by the L ease , the L andowne rs unrea sonably withheld their approva l of those plans, there by thwarting Trinity ’s ability to mine and, as a result, brea ching the L ease . The L andowne rs counter ed at trial that th ei r re fu s als of Trinity ’s mining plans wer e

rea sonable and, moreove r, t hat Trinit y had breac hed the L ease by commencing mining oper ations without f irst ge tting the r equire d approva l from the L andowne rs, disreg arding a Villag e ordinanc e and stop-work order , failing to perf orm mining opera tions in a “prude nt and workmanlike manner ,”

The jury was also instructed in connec ti o n wi t h Questi on 1 that (1) “‘unr easona bly 7 withholding consent’ should be deter mined by ref

ere nce to the terms and conditions of the Sand and Gra vel L ease ”; (2) “in addition to express promises, ever y contra ct contains an implied promise that a party will no t d o an y

thing to delay or preve nt the other party from perf orming his part of the contra ct”; and (3) “the L andowne rs made no express promise to apply for rezoning of their proper ty and ther e is no implied promise to apply for r ezoning.” The jury was instructed in connec tion with this question that “a city ordinanc e is presumed 8 valid.” 7and fa iling to indemnify the L andowne rs when they wer e included in the Villag e’s lawsuit ag ainst

Trinity

. Basis for ju ry’s finding th at Trini ty failed to comply wit h th e Le ase As an initial point, Trinity arg ues t hat t he only possible basis for the jury ’s findi ng that Trinity failed to comply wit h t h e L ea s e i s the L andowne rs’ arg ument that Trinity failed to indemnify the L andowne rs for their inclusion in the Vi l l age lawsuit. Stated in the conver se and
in Trinity ’s words, Trinity mai n t ains that “the jury ’s brea ch finding cannot be based on the
L andowne rs’ alleg ations that Trinity mined withou t p ri o r approva l, delibera tely and knowing ly disreg arde d the Site Deve lopment Ordinanc e, or failed to act in a ‘r ea s o n able prudent and workmanlike ma

nner.’ ” Trinity

bases this position on Question 6 of the jury char g e:

What sum of money , if any , if paid now in cash, would fairly an d rea sonably compensate the L andowne rs for their damag es, if any , that resulted from Trinity ’s failure to comply ? Consider o n l y t h e reasonable fee , if any , for the nece ssary service s of the L andowne r’s attorney s in the suit by the Villag e of Webberville and all costs and expenses, if any , incurre d by the L andowne rs in connec tion with that li tiga tion.
Trinity contends that the above- listed instruction to Question 6 limit ed the j u ry t o awa rding the L andowne rs only those dam age s i n curr ed as a result of Trinity brea ching the L ease ’s indemnity clause

. By ext en s i o n , Trinity continues, the J ury ’s “y es” answe r to Question 2 must also be predic ated on a fi n d i n g that Trinity brea ched the L ease ’s indemnity clause

. Thus, Trinity conclude s, our evidentiar

y -suffic iency revie w is limit ed to deter mining whether there is leg ally and fac tually sufficie nt evidenc e to support a finding that Trinity failed t o co m p ly with the L ease ’s indemnity provision. We disag ree . Question 2 was submitt ed in broad form, without objection, as 8follows: “Did Trinity fail to c omply with the Sand and Gra vel L ease ? ” As written, the jury could have found a failure to comply with the L ease based on any contra ctual obliga tion under the L ease , i n cluding , but not limit ed to, any of the brea ch theories offe red by the L andowne rs: failing t o indemnify the L andowne rs, ignor ing the ord i n an ce and stop work order , or failing to opera te in a

rea sonably prudent manner . See Eco Built, Inc. v. Lufts , No. 03-08-00427- CV, 2010 WL 3629821,
at *9 (Tex. App.—Austin Sept. 17, 2010, no pet.) (mem. op.) (holding that broad- form submissi on of brea ch q u es t i o n allowed jury to find brea ch based on any contra ctual obliga tion). Nor is it

n ecessary to know t he basis. Be cause it was not objected to, we may uphold the j ury ’s fin d i n g i n Question 2 as long as leg ally and fac tually sufficie nt evidenc e supports the jury ’s finding on a theory

co n t emplated under the jury char g e. See City of Fort W orth v. Zimlich , 29 S.W .3d 62, 69 & n . 1 (Tex. 2000) (upholding jury ’s discrimination finding beca use one of three theories prese nted to jury char g e was supported by leg ally sufficie nt evidenc e, althoug h reduc ing damag es awa rd for theories not suppor

ted by leg ally sufficie nt e vidence ); see also Tex. R. Civ. P. 274 (“A ny complaint as to a question, definition, or instruction, on acc ount of any defe ct, omission, or fault in pleading , is waived unless specific ally

included in the objec tions.”).
Evidentiary sufficiency of jury’s findin g that Tri nity failed to com ply Having deter

mined that we must uphold the jury ’s finding in Question 2 if leg ally and fac tually sufficie nt evidenc e supports that finding on a theory contemplated by the char g e, we now addre ss Trinity ’s evidentiar y sufficie ncy challeng e to the jury ’s finding that Trinity failed to comply with the L ease . Be cause it is undi sputedly an obli g ation under the L ease , was a theory offe red by the L andowne rs at trial, and is dispositi ve of this and other issues on appea l, we will focus on the evidenc e, larg ely

undisputed, relating to the L andowne r’s a lleg ation that Trinity beg an mining
9opera tions without first obtaining written ap p r o v a l of a mining plan from the L andowne rs as require d

by the L ease . Under

the terms of the L ease , Trinity must submi t a mining or construction plan to the L andowne rs and g et their written approva l befor e beg inning any construction or mining activities on the L ease proper ty

. Although the L ease does not specify the contents of the plan, any such approva l from the L andowne rs may “not be unrea sonably wi t hheld.” As discussed, Trinity 9
submitt ed three separ ate mining plans to the L andowne rs for their approva l in hopes of starting some
sort of mining opera tions to rec oup the $705,000 in advanc e roy alty pay ments befor e the L ease term ended. The L andowne rs reje cted all three of Trinity ’s mine plans. The following are the undisputed dates of submission and re jection of those plans:

First Plan Second Plan Third Plan Submit ted J une 22, 2010 Aug ust 23, 2010 Dec ember 17, 2010 Rejecte d J uly 22, 2010 September 8, 2010 J anuar y 7, 2011 1 0 1 1

Specifica lly under the L ease , Trinit y agr ee s t hat (g) “prior to construction of any plants, 9 roads, or other improvements to submit a construction plan to [L andowne rs] for [L andowne r’s] prior written approval , s u ch approva l not to be unrea sonably withheld”; (h) prior to commence ment of mining, t o s u b m i t a mining plan to [L andowne r] for [L andowne r’s] prior written approva l, such approva l not to be unrea sonably withheld.” There was n o wr i t ten reje ction to the second plan, but the L andowne rs expressed their 1 0 reje ction at a tempor ary

injunction hearing

. The letter

is misdated as J anuar

y 7, 2010, but refe rs to events in 2011. 1 1 10The evidenc e is also undisputed that on November 12, 2010, betwee n its submissi on

of the second and third plans and also betwee n the L andowne rs’ respe ctive reje ctions of those plans, Trinity beg an mining opera tions on the 104-ac re tra ct of the L ease proper ty

. Although the mining only lasted for five hours and Trinity was not able to g arne r any marke table materia l, the Vill ag e obtained a restra ining order ag ainst Tri n i t y an d later filed suit ag ainst both Trinity and the
L andowne rs as a re s u l t o f the November 12 mining opera tions. Trinity ’s witness Matthew Hallmark acknow ledg ed that Trinity beg an mining opera tions on November 12, 2010, and that it had done so without obtaining the L andowne rs’ a pproval of a mine plan. He also testified that Trinity would not have stopped mining that day but for the fac t that a piece of equipment had failed. Trinity ’s president, Carl Campbell, admitted that Trinity beg an mining on the L ease proper ty in November 2010, but that they had not done any additional mining since that time. Finally , a lawy er for the Villag e, Monte Swear eng en, testified that Tr inity beg an mining ope rations on the 104-ac re
trac t on November 12, 2010, and that those opera tions led to a temporar y injunction hear ing and,

u l t i m at el y , to the Villag e’s suit ag ainst Trinity and the L andowne rs. We hold that, under the applicable standard of revie w, this e vidence is le g ally and fac tually sufficie nt to support the jury ’s finding that Trinity failed to comply with the L ease . See City of Keller v. W ilson , 168 S.W .3d 802, 810 (Tex. 2005); Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986).

Trinit y arg

ues that even if it brea ched the lease by mining without approva l on No v ember 12, 2010, that brea ch was excused by the L andowne rs’ unrea sonable withholding o f consent to its mine plan. As stated by Trinity :

Given the jury ’s answe r to Question 1 (that the L andow n er s b re ache d by unrea sonably withholding consent to the m ine pl an), the jury ’s finding that Trinity

11brea ched the L ease cannot be based on the L andowne rs ’ alleg ation that Trinity

commence d mining without obtaining written approva l.

But Trinity ’s arg ument here incorre ctly states the jury ’s finding reg arding the L andowne rs’ actions and, further , its arg ument assumes that the jury found that the L andowne rs failed to comply with the
L ease by reje cting the s econd plan—i.e., on Aug ust 23, 2010. I n other words, Trinity ’s arg ument here is that, if it brea ched by mining without approva l on November 12, 2010, that brea ch must have

occur red afte r the L andowne rs brea ched beca use the jury found in Question 1 that the L andowne rs failed to comply with the L ease on Aug ust 23 when they reje cted Trinity ’s second plan. That assumption, and thus the basis for Trinity ’s arg ument here , is faulty

. The question submitt ed to the jury was whether the L andowne rs failed to comply with the L ease by “unre as o n ably withholding
consent to a mining plan,” not to one of the three specific mining plans. (Emphasis added.) As such, the jury ’s answe r to Question 1 indicates only that it found that the L andowne rs had unr easona bly reje cted at least one of the three mining plans. Given, as shown in the char t above, that three plans

wer e submitt ed and that the last possible reje ction by the L andowne rs occur red in J anuar

y 2011, and
g iven the form of the question, the jury could have found a fa ilure to comply with the L ease based

on the L andowne rs’ reje ction of any one of the three plans, including the last, meaning that Trinity would have br eac hed first. See E co Built , 2010 WL 3629821, at *9.
Evidentiary sufficiency of jury’s findin g that Tri nity failed to com ply first This incorre ct assumption reg arding the basis of the jury ’s findi ng in Question 1 is presumably at least one source of Trinity ’s second evidentiar y -suffic iency challeng e, this one to the evidenc e supporting the jury ’s finding that Trinity failed to comply with the L ease first. Ag ain, the finding Trinity challeng es here —i.e., that Trinity failed to comply first—was rea ched by the jury in
12answe ring a question that simply asked whether Trinity or the L andowne rs “f

ailed to comply

with the Sand and Gra vel L ease first? ” We may uphold the jury ’s answe r to that question if leg ally and fac tually sufficie nt evidenc e supports any theory contemplated under the jury char g e. See Zimlich , 29 S.W .3d at 69 & n.1; Eco Built , 2010 WL 3629821, at *9.

First, as discussed previously in connec tion with Trinity ’s challe ng e to the J ury ’s

a nswer to Question 2, the evidenc e in the rec ord conclusively established that Trinity mined on L eas e
proper ty without approva l on November 12, 2010. Thus, there is leg ally and fa ct u al ly sufficie nt evidenc e to support a f

inding that Tr inity

failed to comply with the L ease on November 12, 2010. Next, althoug h the jury ’s finding to Question 1 (that the L andowne rs failed to co m p ly ) is not challeng ed on appea l, we consider the evidenc e of the L andowne rs’ brea ch as it rela tes to the jury ’s 1 2

answe r to Question 3—specific ally evidenc e supporting a finding that the L andowne rs fa i l ed to comply with the L ease by unrea sonably re j ec t i n g the third plan in J anuar y 2011—beca

use that

o ccurred afte r the November 12, 2010 brea ch by Trinity

. Although Trinity is corr ect that th e L andowne rs reje cted the third plan beca use it “su ff

er ed from the same shortcoming s as the prior

m i n e p l an s , ” the jury could still find that the L andowne rs rea sonably reje cted the prior plans, b u t

unrea sonably reje cted the third plan g iven the evidenc e. Trinity ’s president, Campbell, testified that the third plan was an eff

ort to rec oup its losses. Trinity ’s g ener al oper at i o n s m anag er, Hallmark,

Trinity , arg uing in its reply brief that “the jury could not have found that the first and only 1 2 brea ch o cc u rr ed on J anuar y 7 when the L andowne rs reje cted the Third Mine Plan,” purports to raise an evidentiary -suffic iency challeng e to Question 1: “The letter [rejec ting the third plan] and expert testimony [st ating that the third plan suffe rs from the same shortcoming s as the prior plans] prove the o p p o s i t e o f a vital fac t, making reve rsal on leg al s ufficie ncy g rounds appropriate.” We disag ree about t he evidence in t h e record, which we discuss above, but reg ardle ss, Trinity did not object to the form of Question 1 at trial and, more importantly , could not do so on appea l and hope to preva il on appeal. 13testified that the third plan repr esente d Trinity ’s eff orts to make a plan that would satisfy , or be the least objectionable to, the Vill age an d i t s residents and that would allow it to mine and g et its
roy alties with the least amount of conflict. To that end, based on discussions with Villag e principals, the third plan proposed mining in an are a of the L ease proper ty that was far

thest awa y from the Villag e’s populated are as and would not add traff ic to Villag e roads. Hallmark also testified that the third plan alleviated the L andowne rs’ conce rns about leaving a channe l a cross their proper ties. Finall y , Hallmark testified that the third plan repr esente d Trinity ’s best ideas for resolving all the various conce rns. The Villag e’s attorney , Monte Swear eng en, acknow ledg ed that the Village, or
at least people involved with its manag ement, wer e interested in resolving the i s s u es an d had discussed Trinity ’s sug g estion of mining the parc el of land contemplated in the third plan. Viewing the evidenc e in the light most favor able to the jury ’s verdic t and indulging ever y rea sonable inf

e renc e that would support the finding , the jury could have rea sonably found that the L andowne rs rea sonably reje cted the first and second plans but unrea sonably reje cted the third pla

n. L ikewise, view ing a ll the evidenc e, those same finding s are not “so contra ry to the overw helming weig ht of the evidenc e

s o as t o b e clea

rly wrong and unjus t.” See Cain , 709 S.W .2d at 176. Acc ording ly , a jury fin d i n g that the L andowne rs fa iled to comply with the L ease by

reje cting the third plan in J anuar y 2011 is supported by leg ally and fac tually sufficie nt evidenc e. That, combined with the conclusive evidenc e that Trinity brea ched on November 12, 2010, likewise provides the requisite evidentiar y support for the jury ’s finding that Trinity failed to c omply

with the L ease first. Finally , Trinity arg ues t h at ev en i f it brea ched the L ease by mining without prior
approva l from the L andowne rs, that brea ch cannot be considere d materia l beca use Trinity only mined for about five hours. I nitially , we note that althoug h the jury did not make a specific finding

14on this element, it is deeme d found under Texas Ru l e o f C i v i l P ro cedur e 279 if it was omitted

without reque st or objection and there is fac tually sufficie nt evidenc e to support t h e fi nding. See
Tex. R. Civ. P. 2 7 9

. As such, we take Trinity ’s arg ument here to be an evidentiar y -suffic iency challeng e to the jury ’s dee med mater iality finding

. “I n deter mining the materia lity of a brea ch, the [fact finder] wi l l co n s i der, among other things, the extent to which the non-bre aching party will be deprive d of the benef it that it could have rea sonably

anticipated f

rom full perf

ormanc e.” Hernande

z v. Gulf Grp. Lloyds , 875 S.W .2d 691, 693 (Tex. 1994) (citing Restateme nt ( Second) of Contracts § 241(a) (1981)) . The fa ct finder
may also consider “(i) the extent to which the injured party can be adequately compensa ted for the part of that benef

it of which he will be deprive d; (ii) the extent to which the party failing to perf orm

or to offe r to perf

orm will suffe r forf

eiture; (iii) the like l ihood that the party failing to perf orm or
to offe r t o p er fo rm wi ll cure his failure , taking acc ount of all the circ umstances including any

rea sonable assura

nces; (iv) the extent to which the behavior of the party failing to perf orm or to offe r
to perf orm comports wit h standards of g ood faith an d fa i r dealing.” Id

. The evidence shows that Trinity ’s brea ch involved the L andowne rs’ proper ty rig hts, damag e or chang e to rea l proper ty , and implicated a specific term of the L ease . That t erm, as set forth above, required Tri n i t y t o provide the L andowne rs wi t h a mi ning plan and obtain their written approva l “prior to commence ment of mining.” That appears to be the only provision in the L ease that g ives the L andowne rs any active oversig ht or insight into the mining proce ss. The evidenc e also shows that Trinity ’s actions in brea ching this particula

r provision of t h e L ease wer e admittedly delibera te and possibly in bad faith—Trinity witnesses testified that Trinity decide d that the L andowne rs wer e being unrea sonable
in reje cting its plans and that it would beg in mining despite the lack of approva l. A November 11,

152010, letter from the L an d o wn er s’ attorney notified Trinity that the L andowne rs are awa re that Trinity has moved mining equipment onto the L ease proper ty and war

ns it no t t o beg in mining without approva l. Trinity witnesses testified that Trinity would not have stopped mining on November 12, 2010, but for the fac t that its machiner y broke d o wn. All this was done while Trinity ’s suit ag ainst the L andowne rs was pending

. Considering the rele vant evidentiar y standards,

we conclude that the jury ’s impli ed fi n d i ng of materia lity is supported by leg ally and fac tually sufficie nt evidenc e. See Tex. R. Civ. P. 279; See City of Keller v. W ilson , 1 6 8 S.W .3d 802, 810 (Tex. 2005); Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986).

We overrule Trinity ’s first issue.

Breac h of

the indem nif

ication clause
I n its second issue on appea l, Trinity asks whether t h e L an d owner s’ aff irmative defe nse of prior material brea ch ca n b e predic ated on a breac h of an independe nt indemnification clause in the L ease . Stated an o t h er wa y , Trinity arg ues that beca use the jury found that Trinity failed to comply with the L ease ’ s in d e pendent indemnity clause , Trinity should be allowed to rec over its dama ges beca

use the aff

irmative defe nse of prior materia l brea ch only excuses brea ches of mutu all y depende nt contra ct obliga tions. But Trinity ’s arg ument here relies, and falls, on the inco rr ec t as s u m p tion that the jury found that Trinity had failed to comply with the L ease by ref using to indemnify

the L andowne rs. As discussed above, how ever , the broa d-for m submiss ion of Question 2, which simply asked the jury whether Trinity failed to comply with the L ease , means th at t h e j u ry co u l d have relied on any brea ch theory

. See Eco Built , 2010 WL 3629821, at *9.
Acc ording ly , we ove rrule T rinity ’s sec ond issue. See Tex. R. App. P . 47.1.

16Excuse
I n its third issue, T ri n i t y arg ues that it is entitled to its damag es cause d by the
L andowne rs’ brea ch even if it brea ched the L ease first beca use the L andowne rs trea ted the
contra ct as continuing afte r Trinity ’s brea ch. I n support of this arg ument, Trinity relies on the rule
in contra ct law that “[w]hen a contra cting party commits a material brea ch, the non-bre aching party must elect b etwee n two course s of action, either continuing perf ormanc e under the
contra ct or cea sing perf

ormanc e and terminating the contra ct.” Eco Built , 2010 WL 3629821, at *6 (citing Gupta v. Eastern Idaho Tumor Inst., Inc ., 140 S.W .3d 747, 756 (Tex. App.—Houston [14t h Dist.] 2004, pet. denied) ; W orld A cc es s T

el ecomms. Grp., Inc. v. Statewide Calli ng, Inc. , No. 03-05-00173- CV, 2006 WL 2986227, at *7 (Tex. App.— Au s t i n Oct. 17, 2006, no pet.) (mem. op.)); see also Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc. , 134 S.W .3d 195, 196 (Tex. 2004) (noting “funda mental principle of contra ct law” that “whe n one party c o mm it s a materia l brea ch of tha t contrac t, the other pa rty is discharg ed or e x cused f rom furthe r per formanc e”) citing Hernande z , 875 S.W .2d at 692)). The rule is also re l ated to waiver in that it, in essenc e, deems
trea ting a contra ct as continuing afte r a brea ch as a waiver of the excuse for non-per formanc e. See
Eco Built , 2010 WL 3629821, at *6; Chilt on Ins. Co. v. Pate & Pate Enters., Inc. , 930 S.W .2d 877,
887–88 (Tex. App.—San Antonio 1996, writ denied) (desc ribing rule as “wa iver of excuse for nonperf ormanc e”)

. Acc ording to Trinity , th e L a ndowner s violated the continuing- perf ormanc e rule by

—

• sending a demand letter for $36,388.50 and reque sting indemnification under the L ease on Dec ember

23, 2010;

• failing to terminate the L ease when Tr inity had not done so ten da

y s later;

17• seeking its roy alty pay ment in March 2011;

• notify in g T ri n i ty in J anuar y 2011 of Trinity ’s alleg ed brea ch and “possible future action ” under the L ease , but with no notification of termination of the L ease ; and

• seeking decla

ratory judgme nt to enfo rc e continuing obliga tions under the L ease and the r ight to pursue future te rmination of the L ease .

I n sum, Trinity alleg es that the L andowne rs “continued perf ormanc e” under the L ease by asser ting their rig hts under the L ease and trea ting the L ease as if it wer e not terminated. But a car eful rea ding of Eco Built and the case s it cites as authority for this rule shows that more is require d to constitute continuing pe rfor

mance . I n Eco Built , we held that the initial non-bre aching party , L andmar k, was not excused from i t s p ay

m ent obliga tions under the brea ched contra ct beca use it had trea ted the contra ct as continuing and had continued to demand perfor mance from Eco Built, the i nitial brea ching party

. Specifica lly , afte r Eco Built had materia lly brea ched the contra ct, L andmar k continued to tr eat the
contra ct as ong oing by writing pay ment chec ks to Eco Bu ilt and by demanding , and rec eiving , perf ormanc e from Eco Built. See Eco Built , 2010 WL 3629821, at *6. Simi larly , in W orld Acc ess ,

we held that the i n i t i al n on-bre aching party was not excused from pay ing for service s it had previously rec eived under the breach ed contra ct simply beca use the other party had brea ched first, nor was it excused from pay ing for service s it actua lly rec eived even though the other party

was alre ady in brea ch. S ee W orld Acc ess , 2006 WL 2986227, at *8. L ikewise, in Gupta , the
Houston Four

teenth Court of Appea ls held that the initial non-bre aching p arty , Gupta, was not discharg ed or excused beca u s e p o s t -b rea ch he, for example, took over the billing obliga tions, demande d and rec eived pay ment for a phy sician’s salary , and conti n ued to provide billing

18information as require d by the ag ree ment. See Gupta , 140 S.W .3d at 757. I n sum, in eac h of these

continuing- perf

ormanc e case s, the court require d an aff irmative contra ct-re lated act require d under

t h e co n trac t by the initial non-bre aching party to prec lude that party from using the defe nse o f prior mater ial brea ch.

The asser tions Tr inity makes reg arding the L andowne rs’ actions, with one possible exception, do not meet this standard. The actions Trinity d escr ibes are simply the L andowne rs’ expressions or asser

tions of their rig hts under the L ease . But the L andowne rs p er fo rm ed no acts require d by L ease , and Trinity did nothing in response to the reque sts. There is nothing in the rec ord that even comes close to the actions taken by the parties in the Eco Built , Gupta , and W orld Acc ess

case s. And with reg ard to the possible exception mentioned, an alleg ed post-trial demand by the
L andowne rs in Marc h 2011 for their roy alty paym en t, that document is not part of the appellate

rec ord and, as such, may not be considere d on appea l. See Tex. R. App. P. 34.1; Save Our Springs Alliance, Inc. v. City of Dripping Springs , 304 S.W .3d 871, 892 (Tex. App.—Austin 2010, pet. denied) (“We are limit ed to the appellate rec ord provided.” ); Burke v. Insurance Auto Auctions Corp ., 169 S.W .3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (docume nts that are cited in brief and attache d as appendic es may not be considere d by appel l at e co u rt s if they are not formally included in re cord on a

ppeal)

. We overrule Trinity ’s third issue.
Charge e rror I n its fourth issue, Trinity challeng es the district court’s re fu s al t o submit the following two additional jury questions and re lated instruction offe red by Trinity :

19[Re quested] QUEST ION NO.1 Did [t he L andowne rs] fail to comply with the lease by not signing the Owner Certifica ti on forms for the Villag e of Webberville Z oning Chang e Request Application? [Re quested] INSTRUCTION NO.2 TO [Requested] QUESTI ON NO.1
You are instructed that [t he L andowne rs] failed to comply with the Sand and Gra vel L ease if it require s that they sign the Owner Certifica tion forms for the Villag e of Webbe rville Z oning Cha ng e Reque st Application. [Re quested] QUEST ION NO.3 Did [t he L andowne rs] fail to comply with the lease by not g ranti n g T ri nity peac eful possession of the pr emises for pur poses of Tr inity ’s oper ations?

Stan dard of rev iew The province of a jury is to judge the cre dibilit y of witnesses and re s o l v e factual disputes, Burrow v. Arce , 997 S.W .2d 229, 245 (Tex. 1999), which it does by answe ring the questions prese nted to it in the court’s char g e. The trial court must submit to the jury the questions, definitions, and instructions “ra ised by the written pleading s and the evidenc e.” Tex. R. Civ. P. 278;
Union Pac. R.R. Co. v. W

illiams , 85 S.W .3d 162, 166 (Tex. 2002). The rule imposes “a substantive, nondiscretionar

y direc tive to trial courts [ that require s] them to submit reque st ed q u es t i o n s to the jury if the pleading s and any evidenc e support them.” City of The Colony v. North Tex. Mun. W ater Dist ., 272 S.W .3d 699, 74 6 (T ex . Ap p.—For t Worth 2008, pet. dism’d) (citing Elbaor v. Smith , 845 S.W .2d 240, 2 4 3 (Tex. 1992)). Acc ording ly , we revie w the trial court’s ref usal to submit questions de novo. Financial Ins. Co. v. Ragsdale , 166 S.W .3d 922, 926 (Tex. App.—El Paso 2005,

no pet.); see Exx on Corp. v. Perez , 842 S.W .2d 629, 631 (Tex. 1992) (per curia m) (holding it is

reve rsible er

ror to deny

submissi on of question ra ised by pleading s and evide nce)

.

20Requested Question No.1
I n support of its arg ument reg arding Requested Question No.1 a n d r e la te d in s tr u c ti o n , Trinity points to the undisputed evidenc e adduce d at trial that the Villag e could not issue a mining permit unless the proper ty first complied with the Villag e’s zoning require ments; that Villag e zoning chan ges co u ld be made only with the written consent of the proper ty owner s; and that the
L andowne rs neve r ag ree d to re- zone the L ease proper ties. Trinity also points to evidence, ma inly testimony from its witnesses, that it contends shows that the L andowne rs ref used to cooper ate with Trinity in its efforts to re- zone the proper ty , including the following :

• The L andowne rs n ev er proposed any alterna tives to re- zoning that would allow Trinity to mine, despite the fa ct that Trinity soug ht ideas fr om the L andowne rs;

• Trinity reque sted a ty pe of re- zoning that would not require the L andowne rs to deed their land to the Villag e, but the L andowne rs’ attorney sug ges t ed , the witness thought as a delay ing ta ctic, that such a

n ordinanc e did not exis t;

• Trinity

did not ask the L andowne rs to g o to any meeting s or pre pare any

studies;

• The L andowne rs said they would never ag ree to re- zone all three proper ties at the same time; and

• The L andowne rs reque sted a larg e amount of information that they said they neede d befor e they would even c onsider a zoning chang e.
Finally , Trinity emphasizes provisions in the L ease that (1) impose a duty on Trinity to comply with all ordinanc es and (2) g ives Trinity , in conducting mining, proce ssing, and remova l opera tions, “the rig ht to do all things nec essar y or conve nient in car

ry ing out the pur

pose of” the L ease . Trinity arg

ues that this evidenc e and its pleading s “pre sented a disputed fac t i ssue

as to whether L andowne rs’s ref usal [t o ag ree to re- zone their proper tie s ] brea ched either express

or implied terms or duties under the L ease .” There fore , Trinity continues, it was mandatory for the
21district court to prese nt the jury with a question and acc ompany ing instruction on that issue, and its failure to do so was an e rror that require s a newtrial. We disag ree . The conduct require d by the parties under a contra ct is a question of law. See Lafarge Corp. v. W

olff , Inc. , 977 S.W .2d 181, 186 (Tex. A pp.—Austin 1998, pet. denied) ; Mee k v. Bishop
Peterson & Sharp, P.C. , 919 S.W .2d 805, 807 (Tex. App.—Houston [14t h Dist.] 1996, writ denied) ;

see also X Techs., Inc. v. Marvin Test Sys., Inc. , 719 F.3d 406, 413–14 (5th Cir. 2013) (citing Mee k , 919 S.W .2d at 805). Any dispute conce rni ng the failure of a party to comply with the contra ct is a fact question for the jury

. See Lafarge , 977 S.W .2d at 186 ; Me ek , 919 S.W .2d at 807. Stated another way , the “judg e deter mines what conduct is require d of the parties and, insofar as a dispute exis ts conce rning t h e fa i l ure of a party to perf orm the contra ct, the judge submits the disputed fac t questions to the jury .” Lafarge , 977 S.W .2d at 186 (citing ITT Commercial Fin. Corp. v. Riehn , 796 S.W .2d 248, 253 n.3 (Tex. App.—Dallas 1990, no writ)). Thus, under these principles, Trinity is entitled to Requested Question No.1 only if the L ease obliga tes the L andowne rs to ag ree to re- zone the L ease proper

ties and, then, only if the evidenc e and pleading s raise a fac t question reg arding the
L andowne rs’ compliance with that obliga tion (not rele vant here beca use the evidenc e is conclusive that the L andowne rs did not ag ree to re-zone)

.

Despite Trinity ’s seeming sug g estion t o the contra ry , the L ease has no provisions requiring the L andowne rs to take any aff irmative action reg ardin g re -z oning. The bulk of the burden and rig hts under the L ease belong to Trinity , including Trinity ’s obliga tion under the L ease to comply with any applicable ordinanc es. L ikewise, we find no support for Trinity ’s arg ument that the
L ease imposes an implied duty on the L andowne rs to ag ree to re- zone their proper ty

. Texas law does not favor implied cove nants. Nalle v. Taco Bell Corp. , 914 S.W .2d 685, 687 (Tex. App.—Austin

221996, writ denied)

. We will look bey ond the writt en agr eeme nt and im ply a covenant onl y if it is

“nec essar y in order to eff

ectua te the intention of the parties as disclosed by the contra ct as a whole.” Dancige r Oil & Ref. Co. v. Powell , 154 S.W .2d 632, 635 (Tex. 1941). An implied covena nt is sufficie ntly nece ssary to the parties’ intentions only if the o b l i gat i o n “wa s so clea rly within the contemplation of t he parties that they deeme d it unnece ssary to express it. .

. .” Id. ; see Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W .3 d 8 4 4 , 8 5 0 (Tex. 2009) (noting that
terms are implied beca

use “the parties must have intended them and have only failed to express them”). We w ill not imply a covena nt simply beca use it is needed to make the contra ct fa ir, wise,

or just. Nalle , 914 S.W .2d at 687. Her e, a Trinity witness expli citly acknowl ed ged that the parties did not contemplate that the Vil lag e would form or pass ordinanc es. See Mann Frankfort , 289 S

. W

. 3 d at 850. Fur ther, the topic of ordinanc es is cover ed in the L ease , and the burden of

co m p l y i n g with them is place d square ly on Trinity

. See Exx on Corp. v. Atlantic Richfield Co. , 678 S.W .2d 944, 947 (Tex. 1984) (“The re can be n o i mplied covena nt as to a matter specific ally

cover ed by the written terms of the contra ct.” (c i t i n g F r ee port Sulphur Co. v. American Sulphur Royalty Co. , 6 S.W .2d 1039, 1042 (Tex. 1928))).

T rinity also arg ues that the L andowne rs brea ched the duty to cooper ate i m p l i ed
i n ev er y Texas contra ct in which cooper ation is nece ssary for perf ormanc e of the contra ct. S ee Case Corp. v. Hi-Class Bus. Sys. of Am., Inc. , 184 S.W .3d 7 6 0 , 7 7 0 (Tex. App.—Dallas 2005, pet. denied)

. This duty require s that a party to a contra ct may not hinder, preve nt, or interfe re with another party ’s ability to perf orm its duties under the contra ct. See id. Under the L ease , stated
g ener ally , Trinity had to pa y y ear ly advanc e roy alty pay ments until it beg an mining to maintain its mining option, but it could terminate the L ease at any time afte r the fifth y ear . When it beg an mining

23opera tions, it was obliga ted to pay roy alties based on the mining producti o n , with cer tain applied minimum s, and meet various other obliga tions in connec tion with the mining opera tions, including the one at issue here , to comply with any applicable ordinanc es. The L andowne rs did nothing to hinder or interfe re with Trinity ’s abili ty to perf orm any of t hese duties

. At most, the L andowne rs
arg uably interfe red with Trinity ’s pursuit of benef its incidental to the full execution of its obliga tions under the L ease . See Ca s e C o r p
. , 184 S.W .3d at 774 (distinguishing perf ormanc e of ag ree ments from benef

its derive d from ag ree ment in deter mining whether party had duty to cooper ate)

. Fur ther, no implied duty to cooper ate would have require d the L andowne rs to burden the ir proper ties with zoning desig nations when the L ease did not specific ally require them to do so and wher e not doing so did not prevent Trinity from fulfilling its obli g ations under the L ease . We hold that the L ease does not obliga te the L andowne rs to re- zone their proper ties.
Be cause there is no obliga tion under the L ease that would require the conduct cont emplated by Trinity ’s Requested Question No. 1, Trinity was not entitled t o a j u ry question, or its rela ted instruction, to resolve a fac t question reg arding L andowne rs’ compliance with that conduct, which Trinity asser ts does not exi st in any

event.
Requested Question No.3 Wit h respe ct to its rema ining point reg arding the district court’s ref usal to submit its Requested Que stion No. 3, Trinity does not hing more t han point out that the district court re fused
to submit t h e q u estion and complain that it was err or. Trinity offe rs no arg ument, makes no

rec ord re fer ence s, and cites to no ca se authority . Acc ording ly , we c onclude that Trinity has fa iled
to adequa tely brief this sub-issue. See Tex. R. App. P. 38.1; McI ntyre v. W ilson , 50 S.W .3d 674, 682 (Tex. App.—Dallas 2001, pe t. denied).
24We overrule Trinity ’s fourth issue.

$25,000 dam age award

Trinity arg

ues in its fifth issue t h at the jury ’s damag e awa rd of $25,000 is not supported by leg ally and factually sufficie nt evidenc e. As stated previously , the s tarting point for

an evidentiar

y -suffic iency revie w of a jury ’s finding is the question submitt ed to the jury

. See Osterberg , 12 S.W .3d at 55; Golden Eagle , 116 S.W .3d at 762. Her e, Question 6 asked, “What sum of money , if any , if paid now in cash, would fairly and rea sonably compensa te the L andowne rs for their damag es, if any , that resulted from Trini t y ’s fa i l u re to comply ? ” The jury was instructed to consider “only the rea sonable fee , if any , for the nece ssary service s of the L andowne r’s attorney s in the suit by the Villag e of Webberville and all costs and expenses, if any , incurre d by the L andowne rs in connec tion with that L i t i gat ion.” Trinity did not object to this damag es question or i nstruction as proposed and subm itted. The jury answe red, “ $25,000.” I n our evidentiary -suffic iency revie w of the evidenc e supporting the jury ’s finding here , we assess the evidenc e in light of the instruction
g iven. See Zimlich , 29 S.W .3d at 71 (stating that wher e ther e is no objection, evide nce to support finding based on the instruction should be assessed “in light of” t h e i n s t ru ct ion g iven); Larson

v. Cook Consultant

s, Inc ., 690 S.W .2d 567, 568 (Tex.1985) (same) ; see also Equistar Chems., L.P.

v. Dresser- Rand Co. , 240 S.W .3d 864, 8 6 8 (T ex . 2 007) (par ty ’s failure to object to char g e and instruction waived any err or, meaning that the measure of damag es was as provided by the question and instruction g iven). 1 3

Also beca use t h er e was no objection t o the questi on or t he charg e, we need not addre ss 1 3 whether the jury ’s awa

rd was based on brea ch of the indemnity clause or, i f o n some other brea ch, whether it was appropr iate to awa rd attorney ’s fee s as damag es. See Qwest Commc’ns Int’l, Inc. v. A T & T Corp ., 114 S.W .3d 15, 32–33 (Tex. App.—Austin 2003), rev’ d in p a r t o n other 25Stated g ener ally , the L andowne rs’ arg ument at trial was that its da mag es as a result

of Trinity ’s brea ch wer e the leg al fee s it had incurre d beca use of Trinity ’s failure to indemnify it in

connec tion with the Villag e’s lawsui t

. I n support of its damag es, Trinity ’s lead counsel testified
reg arding his experience and backg round, including his work in Travis County , and his firm’s billing
prac tices. He testified to his belief t h at t h e fees he char g ed the L andowne rs wer e rea sonable and

nece ssary , equitable and just, and that they wer e in line with Travis County and Texas prac tice. He also testified about his consider ation of the various Andersen fac tors, including the time and labor require d, the novelty and difficulty of the questions involved, the skill require d, the fee customarily char g ed, the likelihood that the acc eptanc e of the particula r employ ment would have prec luded other employ ment, the amount of money involved and the result s obtained, time limit ations, the nature and leng th of the profe ssional rela tionship with the client, the experience , reputa tion, and ability of the lawy er or lawy ers perf orming the service s, and whether the fee is fix ed or contin gen t on results obtained or uncer

tainty of collection befor e the leg al service s have been rende red. See Arthur Andersen &Corp. v. Perry Equip. Corp. , 945 S.W .2d 812, 818 (Tex. 1997).

Trinity p o i n t s o ut that some of the work that the L andowne rs wer e billed for by their attorney s took place befor e the L andowne rs wer e included in the Villag e’s suit ag ainst the
L andowne rs. But the L andowne rs’ attorney s testified that this was done in anticipation of suit and also to deter

mine Trinity ’s position in the matter and further , to preve nt the L andowne rs from being drag g ed int o the l awsuit. For example, they conducte d rese arc h reg arding what ordinances might

grounds , 167 S.W .3d 324 (Tex. 2005) (per curia m) (holding that attorney ’s fees ordinarily cannot be recove red as damag es); see also Equistar Chems., L .P. v. Dresser-Rand C o
. , 2 40 S.W .3d 864, 868 (Tex. 2007) (par

ty ’s failure to obje ct to c harg e and instruction w aived any err or, meaning that the measur e of da

mag es wa s as provided by the question and instruction g iven). 26possibly apply for Trinity ’s proposed mining in the ETJ

. The L andowne rs’ lawy er also testified that

he sent letters to T rinity war ning them not to start mining without their approva l eac h time Trinity had notified the L andowne rs that they wer e about to start mining without that approva l. He testified that parts of the costs incurre d in these d am ag es wer e rela ted to his fee s for prepa

ring for the temporar y injunction hear ing and depositions of sever al witnesses. The L andowne rs’ witness also testified g ener ally about the work nece ssary in the Villag e ca s e, i n cl u d ing some discovery

. He did admit, however , that the Vil lag e had not y et pursued the L andowne rs ac tively in its case. The evidenc e included the firm’s nine-pa g e invoice documenting all the work done reg arding the Villag e
matter (including dates, descr iptions of work done, and attorney perf orming the work) and showing

a past amount of $38,879 owing

. Under t h e ap p l i cable standards of revie w, and in light of the 1 4
instruction g iven to the jury , we conclude t h e ev i dence is both leg ally and fac tually sufficie nt to support the jury ’s damag e finding

. See City of Keller v. W ilson , 168 S.W .3d 802, 810 (Tex. 2005);
Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986).

We overrule Trinity ’s fifth issue.
Trinity’s damage s

I n its six th and final issue, Tr inity contends that be cause the evidence in the r ecor d conclusively establishes that Trin i t y p aid $705,000 in advanc e roy alties to the L andowne rs in relianc e on the L ease and that Trinity incurre d rea sonable and nece ssary attorney s’ fee s of $196,740.51 in bring ing suits ag ainst the L andowne rs, this Court should rende r judgme nt for Trinity

Trinity arg ues in its brief that the L andowne rs invoices show a $7 1 , 8 4 4

. 50 write-of f in 1 4 connec tion with this damag e awa rd. Our revie w of the rec ord, howeve r, shows that write-of f to be in connec tion with the L andowne rs’ attorney s’ fee awa rd, which Trinity does not challeng e on appea l. 27or, in the alterna tive, rema nd the case to th e t rial court for rec onsideration of Trinity ’s damag es. Trinity offe rs no leg al support for its contention or any citations to authorities , see Tex. R. App.
P. 38.1 (appe llate briefing require ments), but its arg ument here seems to be a no-evide nce challeng e
to the jury ’s non-finding on the question of Trinity ’s damag es. See City of Keller , 168 S.W .3d at 810 (noting that “no evidenc e” p o i n t s may be sustained when the rec ord shows that “the evidenc e establishes conclusively the opposite of the vital fac t” (citing Robert W. Calvert, “No Evidenc e” & “Insufficient Evidence ” Points of Error , 38 Tex. L . Rev. 361 (1960)) ). Reg ardle ss of what Trinity ’s actua l arg ument is, howeve r, wh at i t i s asking this
Court to do is awa

rd i t damag es when the j ury did not or, i n the a l t er n at i v e, to send t he case back
to the trial court t o d o s o. But the jury did not awa rd Trinity damag es beca

use the jury char g e instructed it not to based on its previous finding s. Specifica lly , t h e j u ry wa s told, in pref ace s to Questions 4 and 5—i.e., the questions reg arding Trinity ’s damag es—to skip Questions 4 and 5 if the jury had found tha t Trinity

had fa iled to comply

with the L ease first:

I f (a) y our answer to Question 1 is “Ye s” [ it was] and y our answer to Question 2 is “No” [it was not]
OR (b) y our answe r to Question 3 is “L andowne rs” [i t was Trinity ] then answe r the following question. Otherwise do not answer the following question.
Trinity did not object to the damag es questions and rela ted instructions as proposed and submitt ed.
I n fac t, when asked by the trial court during the char g e confe renc e, Trinity ’s attorney aff irmatively stated that Trinity had no objections to the jury char g e. I f Trin i t y b eli eved that the jury char g e

28prese nted an improper consideration of its damag es beca use it conditioned those damag es on finding s that only the L andowne rs had failed to comply with the L ease or that the L andowne rs had failed to comply first, Trinity was required to timely object and make the trial court awa re of its complaint in order to prese rve err or for appea l. See Tex. R. Civ. P. 272, 274; Equistar , 240 S.W .3d

at 868. Trinity failed to prese rve err or to challeng e the con ditional format of the jury char g e. There fore , Trini ty may not do so here , and the damag es are deter mined by the questions and instructions give n. See E quistar , 240 S.W .3d at 868. We overrule Trinity ’s six th issue.

Conclusion Having overr

uled ea ch of Tr inity ’s issues, we a ffirm the district c ourt’s judg ment.

__________________________________________ J eff Rose, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose
Affir med Filed: De cembe r 31, 2014

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