Concurring opinion issued October 27, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-14-00301-CV

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DEANA A. POLLARD SACKS, Appellant

V.

THOMAS F. HALL AND THOMAS F. HALL, D.D.S., M.S. P.A., Appellees

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Case No. 919405

CONCURRING OPINION

I agree with the court’s resolution of the attorney’s fee issue, and I concur in 

the result. Because Sacks did not preserve an objection to the formulation of 
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damages charged to the jury, I would take a different approach to evaluating the 

sufficiency of the evidence of the actual damages awarded to Dr. Hall. 

The actual damages award was predicated upon the jury’s answer to the 

following question, with an unorthodox definition of the “benefit of the bargain”

lost by Dr. Hall as a result of Sacks’s breach of their contract:

QUESTION NO. 10:

What sum of money if paid now in cash will fairly reasonably 

compensate Hall for the damages, if any, that resulted from Sacks’ 

failure to comply with the Financial Contract?

Loss of the benefit of the bargain: The difference, if any, 

between the value of the agreement between the value of orthodontic 

care agreed to by the parties and the value of the orthodontic care 

performed by Dr. Thomas Hall, D.D.S. The difference in value, if any, 

shall be determined at the time and place the orthodontic care was 

performed.

Do not add any amount for interest on damages, if any.

Answer separately in dollars and cents for damages if any.

(a) Loss of benefit of the bargain sustained in the past.

ANSWER: $________________

During the charge conference, Sacks objected that the evidence did not support the 

submission of this question, but she did not object to the phrasing of the question 

or suggest any other legally correct formulation of the damages question. On 

appeal, Sacks contends that there was no evidence to support the $1,220 in 

damages awarded in response to this question. 
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The court addresses a different question. Instead of evaluating the evidence 

against Question No. 10, the court observes that Sacks objected to the submission 

of Question No. 10, and it uses that circumstance to justify evaluating the 

sufficiency of the evidence “under a proper definition of ‘loss of the benefit of the 

bargain.’” Measured against a different standard—“the difference between the 

value as represented and the value as received by the non-breaching party”—the 

court finds the evidence to be sufficient and the charge error to be harmless.

The authorities noted by the court do not compel this analytical approach. In 

St. Joseph Hospital v. Wolff, 94 S.W.3d 513 (Tex. 2002), the appellant properly 

and correctly objected to a jury charge due to its incorrect definition of joint 

enterprise. 94 S.W.3d at 525, 530. Accordingly, the charge objection was sustained 

on appeal and the sufficiency of the evidence was measured against the correct 

standard, the one advocated by the appellant in the trial court. Id. at 529–30. The 

other cases noted by the court correctly restated this rule without actually applying 

it as part of an evaluation of the sufficiency of evidence to support a verdict. See 

Latham v. Burgher, 320 S.W.3d 602, 606 n.1 (Tex. App.—Dallas 2010, no pet.)

(noting the St. Joseph rule to explain why the jury charge issue was addressed 

before sufficiency of the evidence); W.L. Lindemann Operating Co., Inc. v. 

Strange, 256 S.W.3d 766, 775 (Tex. App.—Fort Worth 2008, pet. denied) (noting, 

but not applying, the St. Joseph rule).
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The appeal before us did not involve a proper objection to a proposed legal 

standard which was incorrectly overruled by the trial court. In such a scenario, it 

makes sense to apply the correct legal standard if requested on appeal by the party 

that properly requested it in the trial court. But in the absence of those 

circumstances, the ordinary rule should apply: there was no objection to the form 

of the jury question, and therefore the sufficiency of the evidence should be 

measured against that jury question. See, e.g., Wal-Mart Stores, Inc. v. Sturges, 52 

S.W.3d 711, 715, 715 n.4 (Tex. 2001); City of Fort Worth v. Zimlich, 29 S.W.3d 

62, 71 (Tex. 2000); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Larson v. 

Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985).

Measuring the evidence against Question No. 10, the award of $1,220 in 

actual damages should be affirmed. The jury received evidence about the contract 

between the parties, as well as evidence that Sacks had received substantially all of 

the agreed orthodontic care from Dr. Hall because “the majority of the work is 

done upfront,” including the fittings and the braces installation. The remaining 

services consisted of “short adjustment appointments” which Sacks failed to
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utilize. This was sufficient evidence from which the jury could have determined

the loss of the benefit of the bargain sustained by Dr. Hall, as defined by Question 

No. 10.

Michael Massengale

Justice 

Panel consists of Justices Keyes, Bland, and Massengale.

Justice Massengale, concurring.