Affirmed and Memorandum Opinion filed March 5 , 2024.

In The 

## Fourteenth Court of Appeals

NO. 14

- 23

- 00239

- CV

SOUTHERN INDUSTRIAL ENGINES, LLC , Appellant
V.
STEVE BAXTER , Appellee

On Appeal from the 51st District Court Tom Green County, Texas Tri a l C ourt Cause No. A170157C

M E M O R A N D U M O P I N I O N Appellant Southern Industrial Engines, LLC entered into a contract with appellee Steve Baxter whereby both parties agreed to exchange a utomotive work on each other ’ s vehicles. After Southern Industrial r ef us e d t o return Baxter ’ s vehicles, Baxter filed su it and the parties proceeded to a jury trial. The jury

return ed a verdict , finding that Southern Industrial committed violations o f the Texas Deceptive Trade Practi ces Act ( the “ DTPA ” ) and asses s ed approxi mat e ly $75,000 in damages. The trial court signed a final judgment incorporating the2

jury ’ s findings. Southern Industrial appeals the trial court ’ s final judgment and raises seven issues challenging the wording of certain jury que stions and the sufficie ncy of the eviden ce supporting the jury ’ s liability and damages findings

. For the reasons below, we affirm.

B ACKGROUND
Because our an alys e s of Southern Ind ustrial ’ s issues on appeal focus at length on evid entiary sufficiency, we begi n with an over view o f t h e w itness testimony and evi dence heard at trial.
Steve Baxter

Steve Bax ter owned West Texas Collision, which specialized in automotive body and pa int work. Admitted into evidence during his testimony was an agreement signed by Baxter and So uthern In du s tria l ’ s owner Dusty Th ompson which states, in rel evant part: The following agreement is made between Sout hern Industrial Engines, LLC and West Texas Collision. Southern Industrial Engines, LLC will provide all labor and parts to overhaul engine in 197 4 T oyot a FJ []. $7600.00 plus tax. [Southern Industrial] will also pro vide l a bor to diagnose and repair 2014 Ford F

- 250 []. Up to $1887.00 The above me ntioned servi ces will be performed in trade for West Texas Collision providing all material and la bor to pe rform body repai rs and paint on 1984 MCI

- 9[]. Paint color will be d etermi ned by [Southern Industrial] . Total trade amount $10,000.00. The agreement is signed by both parties and dated March 30, 2016. Summarizing the agreement ’ s conte nts, Baxter said h e agr eed to pai nt Southern Industr ial ’ s bus in exchange for Southern Industrial ’ s auto motive work on his Toyota FJ Cruiser3

and Ford F

- 250 truck

. Baxter said he purchased the FJ Cruiser in 2014 from an out

- of

- state

a uction ; he paid $ 3 , 600 for the vehicle and $1, 200 to have it del ivered t o T exas. Baxter intended the FJ Cruiser to be “ a neat vehicle for a daily driver. ” Ac cording to Baxter, he dr ove the vehicle to Southern Ind ustrial ’ s shop and Southern Industrial was “ [s]upp osed to overhaul the e ngine. ” Baxt er testified that he dropped the vehicle off in September 2014 , approx imately 1.5 years before t he parties signed th e written agreement. Baxter said that, to the “ best of [his] knowledge, ” Southern Industrial di d not b egin to work on the FJ Cruiser u ntil Baxter started working on Sou the rn Industrial ’ s bus. With respect to the F

- 250 , Baxter said he “ made a mistake ” and put di e sel exhaust flu id in the F

- 250 ’ s fuel tank . Thi s caused the truck ’ s en gine to “ s eize up

. ” Describing this as a “ common mistak e , ” B axter said he purchased a $5, 000 “ kit ” to rectify the error. Baxter testified that , under the parties ’ agreement, Southern Industrial was supposed to “ pull the e ngine out of the truck , fix what needed to be fixed, use the parts I purchased to fix the truc k, and then that was going to co me back to me. ” B a xter said the repair kit wa s given to Southern Indu st rial at the same tim e the F

- 250 was dropped off for its repair.

Baxter acknowle dged making an insurance claim on the F

- 250 for the damage s and rece iving a $12,000 check. Baxter sai d $ 12,000 is “ th e normal cost for the kit and the repair ” needed to r est ore the F

- 250 to working condition.

Baxter said he purchased th e tools and equipment for the bus ’ s paint job and

sent a crew to Southern Ind ustrial ’ s sho p to complet e the work. Baxt er said pai nting the bus was a “ large job ” that t ook months to complete

. Adm itted into evidence was an invoice fro m West Texas Collision showing the work on the bus

cost approximately $22,000.4

As his crew was w orking o n the bus, Baxter recalled that th e F J Cruiser and the F

- 250 were left “ s itting outside ” Sout her n Industrial ’ s shop. With respe ct to the FJ Cruiser , Baxter said the vehicle ’ s “ transmission had been pulled out ” and

“ stuck ” in the vehicle ’ s bed. Accor d ing to Ba xter, although the vehicl e wa s

r unnin g when he took it to Sout hern Industrial ’ s shop , it was no lon ger operable with out its trans mis sion

. Baxter tes tified that he repeatedly asked Thompson about the status of his vehic les, to which Thompson would r eply : “ W e ’ll get it going. We ’re go i ng to get into it. ” Baxter said he f

inished the bus ’ s paint job a fter a few months but, as far as he could tell, no work had been done on his vehicles. According to Ba xter, at that point he just wanted to get his veh icles back and offered to pay Sout her n Industrial for their return. Baxter said Thompson responded by s aying : “ I ’ m not work in g on your t ruck. I ’ m not going to do anything to your truck, and get off my propert y. ”
Baxter tes tified tha t the con frontation escal ated, with Thompson telling h im, “ I ’ m going to knock you out. You ’ re not taking any of your e quipme nt off of here. Every thing ’ s tha t on my property is mine. Your vehicles are on my property. They ’ re mine. ” Contin uing on, Baxter said Thompson told him that his “ whole intention wa s to h ave [Baxter] fix the bu s and keep [Baxter ’ s] stuff. ”

Baxter said he continue d t o make monthly pay ments on the F

- 250 while it remained at Southern Ind ustrial ’ s s hop. An exhibit admitte d into evidence show ed that Bax ter w as paying appr oximate ly $1,00 0 a month on the truck and continued

t o make month ly payments for seven months after the F

- 250 was dropp ed off in March 2016. According to Baxter, he “ could no longer afford to make the payment on the [F

- 250] and b uy anot her o ne, ” so he let the payments l aps e after October 201 6

. After t he F

- 250 was r e possessed a nd sold in O ctober 2017 , Baxter said a $10,00 0 debt remain ed that still was outstanding as of the time o f trial.5

Baxter testified that he purchased a 2013 F

- 350 in Oc tober 2016 to re p lace

t h e F

- 2 50 he could not retrieve from Southern Industrial. Baxter said he p ut approximately $2 8 ,000 down on the F

- 3 50, which was con sidered a “ total loss vehicle ” a t the time of its purchase because it previously had been wr ecked

. Ba xter said he undertook the re pai r on the F

- 3 50 ; a dmitted into evidence was an invoice from West Texa s Collision showing that approxi mately $19,000 of work was done on the F

- 350. Ba xter agreed that these wer e “ reasonable and necessary charges ” for the repa ir work needed on th e F

- 350. Ba xter said he paid f or the $19,000 of work done on the F

- 350

. D usty T hompson Dusty Thompson works as a diesel technician and ow ns and operates Southern Industrial. Thompson said Baxter brought the FJ Cruiser to Southern Indu strial in September 2014. Ac cor ding to Thompson, Baxter wanted the en g ine rebuilt. Tho mpson told Baxter th at the job would cost approx imat ely $8 ,000

- $10,000. While working on the FJ Cruiser , Thomp son said he discovered the vehicle ’ s transmiss ion w as “ c racked ” and notified Baxter th at the engine would need a new transmission. According to Thomps on, Baxter said he wo uld bring a new transmission for the FJ Cruiser

. Thompson said his crew installed the vehicle ’ s rebuilt e ngine while he waited for Bax ter t o supply the transmission. Th omp son said he eventually move d the FJ Cruiser ou t of the workshop bay and into t he shop ’ s yard

. According to Thompson, Baxter came by the shop and Thompson to ld
Baxter that he neede d to pay for the work completed on the FJ Cr uiser . Thompson said Baxter o ffe red to do some body work for the outstanding debt. The parties agreed that Baxter wou ld paint Thompson ’ s bus , a $10 ,000 job. I n exchange,6

Thompson said he would trad e the FJ Cruiser engine over haul (which he valued at $7,6 00) and approximately $1,887 w ort h of labor on Ba xter ’ s F

- 250. According to Thompson, Baxter would b e responsible to pa y for any e xtra work that was needed

on the F

- 250

. Thompson sai d that, under the parties ’ agreement, Baxter would be responsible f

or “ t he labor and material to compl ete and paint the bus. ” According to Thompson, Baxter wa s slow to send a c rew to Southern Industrial ’ s yard to

wor k on the bus

. After a crew finally was sent to work on t he bus , Tho mpson said Baxter did not pay them. A ccord ing to Thompson, Baxter showe d up at the yard

on e day to chec k on the bus work and was confronted by one of his employees, who was “ yelling and screaming

. ” Thompson said he got betwee n the tw o men and told Baxter to leave his property. Thompson sai d he ended up paying some of Baxter ’ s employees for the work they did on his bus. Thompson testified that he also p aid for some of th e supplies for the bus ’ s paint job. According to Thom pson, th e only wo r k Southern Industrial did on the F

- 250

was to tow the ve hic le to the shop. When Bax te r t ried to pick u p the F

- 250, Thompson said there was an outstanding tow service cha rge of $105. Ultimately, Tho mp son s aid he re fus ed to return Baxter ’ s FJ Cruiser and F

- 250 bec ause Thompson “ ended up providing parts, mater ial, and labor ” to fulfill t he p o rtion o f the parties ’ agreement that was supposed to be completed by Baxter. Thompson

stat ed that Baxter “ breached ” the partie s ’ agreement when Thompson “ started havi ng to pay for materials on that bus and labor for t hat b us

. ” Thompson said the F

- 250 l eft South ern Industrial ’ s yard when it was repossessed

. Thompson stated further that Bax ter never brought the transmission needed to finis h the FJ Cruiser ’ s repair and that the FJ Cruiser “ was no t drivable7

without a tran smiss ion. ”
Deemed Admissions

In Jul y 2 02 0 (ap proximately two years before trial) , Baxter filed a “ Notice of Deemed Admissi ons , ” asserting that certain requests for admission s were deem ed admitted due to Southern Industrial ’ s failure to timely respond . Sou ther n Industri al filed a motion to str ike the deemed admissions on e week later, asserting that its failure to r espond was due to an accident or mistake. Southern Ind ustrial also filed a n order to set a hearing on its motion.

The parties proceeded to tr ial i n S eptemb er 2022 a nd , in a pre

- tr ial conference held after the conclusion of voir dire , Southern Ind ustrial reasserted its motion to strike the deemed admissions. Southern In du strial ’ s co unsel ack nowledged that the motion was never set for a hearing but a sserted th at (1) Southern Indu str ial diligen tly attempted to resolve the problem , and (2) Baxter would not be prejudice d i f the admissions were stricken. Resp onding to the

mot ion, Baxter ’ s counse l emphasized that the motion to strike never had been s et f o r a hearing and that Baxter ha d c ome to trial pre pared to rely on the deemed admissions for the presentation of his case. While discussing th e issue, the trial court noted that Southern Industrial had failed to raise its motion to strike at two previ ou s p re

- trial conferences. Asserti ng that it had “ w anted to hear anything we needed t o hear e arlier so we don ’ t get into a train wreck like this, ” the tr ial court reasoned that it is “ incumben t upon [the movant] to get a hearing ” on its motion. Denying S ou the rn Industria l ’ s motion to stri ke the deemed adm ission s, the trial court concluded that its counsel

“ demon strated callous disregard ” by failing to get th e motion “ ruled upon in a timely fashion. ” However, the trial court nonetheless permitted Southe rn8

Indu strial t o “ put on other contro ver ting evide nce. ” 1 In relevant part, the foll owing deemed admission were read to the ju ry: That [Southern I ndustrial] did not complete its obligation to “ provide labor to .

. . repair [ Baxter ’ s] 2014 Ford F

- 250 ” as re qu ired by the
c ontract.
That [Souther n I ndustrial] did not complete its obligation to “ provide all labor .

. . to overha ul [Baxter ’ s] 1974 Toyota F J Cruiser ” as required by the contract. That [West Texas Collision] completed all the body repair and paint rep air o n the 60

- foot Gr e yhound bus in co mpliance with the contract.
That [Southern I ndustrial] refused to return [Baxter ’ s] Ford F

- 250 and 19 74 Toyota FJ Cruiser upon request after [West Texas Collision] had completed the repairs on the bus. That [West T exas Collision ] has not be en paid a ny sum of money for the work it performed on the bus. That [Baxter] dem anded the r eturn of the property to which [Southern I ndustrial] and Du sty Thompson refu sed.
That due to [Southern I ndustrial ’ s] refusal to return [Bax ter ’ s ] Ford F2 50, [Ba xter] had to p urc hase another vehicle to replace the Ford F250 to be able to continue his work.
That [Baxter] has suffered e conomic dam ages in the amount necessary to pur chase a replacement vehicle due to [Southern I ndustrial] and Du sty T hompson ’ s refusal to return th e F ord F250 t o Steve Baxter.
That Santander Consumer US A, Inc. repos sessed the Fo rd F250 while the vehicle was still in [Southern I ndustrial ’ s] possession.

1 Generally, a p arty against whom deemed admissi ons are admitted at trial may not introduce evide nce to cont rove rt those admissions

. See Mar sha ll v. Vise , 767 S.W.2d 699, 700 (Tex. 1989).9

Conclusion of Trial After the parties rested, the jury delibera ted a nd found that Southern
I ndustr ial engaged in false, mislead ing, or deceptive acts or practices that Baxter relied on to his detriment and that were a “ producing ca u se ” of Baxter ’ s damages

. See Tex. Bus. & Com. Code Ann. § 17.4 6(b) ( listing the acts t hat m ay be

co nsidered “ false, misl ead ing, or deceptive acts or p ractices ” under the DTPA ). The jury also returned the following damage assessments:

The dif ference , if any, in the value of the 1974 Toyota FJ

- 40 Land Cruiser when it was received by [Souther n I nd ustrial] and the value it
wou ld have had if it had been rep aired. The differe nce in value, if any , sh all be determined at the time and place [Southern I ndustrial] received the vehicle from West Texa s Collision. Answer: $3,500

. The reasonable and nec essar y value o f the Ford F25 0 truck

. Answer: $6 0,000

. On November 30, 2022, the tr ial court signed a final judgment awarding Baxter damages in accordance with the jury ’ s damage s findings. Southern Industrial timely filed a n otice of appeal and its case was t ransferre d to this court by Te xas Supreme Cou rt Transfer Order. 2

A NALYSIS
Southe rn Industrial raises seven issues on appeal :
1. th e evidence is legally insufficient to support the jury ’ s damages assessment with respect to the FJ Cruiser ;
2. th e evidence is factu ally insufficient to support t he jury ’ s damages
asses sment with respect to the FJ Cruiser ;

2 Because of the transfer, we must decide the case in accordance with the prece dent of the Third Court of Appeals if our decision otherwise would have been inconsis tent with t ha t co urt ’ s precedent. See Tex. R. App . P. 41. 3.10

3. the e vidence is legally and factually insufficient to support the jury ’ s damages assessment with respect to the F

- 250;
4. Ba xter faile d to request a proper damage s que stion to support th e jur y ’ s F

- 250 damage s assessment ;
5. the j ury ’ s F

- 250 damage s assessment should have been dis regarded as immaterial;
6. the evidence is legally and factually insuffi cient to support the jury ’ s finding that Southern In dustrial ’ s conduct w as th e producing ca u se of Ba xt er ’ s dam ages with respect to the F

- 250; and
7. conclusive evidence support s offsetting certa in amounts agains t the jury ’ s F

- 250 damage s assessment

. We consider these issues individually below.

I. Evidentiary Sufficiency of the FJ Cr uiser Damage s Assessme nt
In it s a ppellate brief, Southern Industrial j ointly ad dresses its first two iss ues challenging the sufficiency of the evidence to support the $ 3 ,500 assessed as damages for the FJ Cruiser

. Asserting that the asso ciated questi on so ught to

re cover “ benefit of th e b argain ” damages, Southern Industrial a rgues that the evidence is lega lly and factually insufficient to support t he jury ’ s $3,500 finding
because “ there was no eviden ce as to the f air market value had the [FJ Cruiser ’ s]
repa irs been completed

. ”

For a l ega l suff

i c iency review, we consider the evidence in the light most favorabl e to the challenged finding. AutoZo ne, Inc. v. Reyes , 2 72 S.W.3d 588, 592 (Tex. 2008) (per cur iam) ; City of Austin v. Chandler , 428 S.W.3d 398, 407 ( Tex. App.

— Austin 2014, no pet .). Eviden ce is legally insufficient if reasonable and fair

- min ded people c ould not reach the conclusion u nder review. City of Keller v. Wilson , 168 S.W.3d 802, 81 9 (Tex. 2005). When an appellant challenges th e legal

su ffici ency of the e vidence su pporti ng an adver se finding of fact on which it did11

not have the burden of proof, the appellant must s how that there is no evidence, or merely a scintilla of evidence, to support the adverse fi nding. City of Au stin , 42 8 S.W.3d at 40 7.

For a fact ual s ufficiency rev ie w, we examine in a neutral light the evidence that both supports and co ntradicts th e jury ’ s f inding

. D ow Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001) ( per curiam); City of Austin , 428 S.W.3d at 407. We consi der a nd weigh all of the evidence and s et as i de the challenged finding only if the evidence that supports the finding is so weak as to make the verdict clearly wrong and ma nifestly unjust. City of Austin , 428 S.W.3d at 407. Nonetheless, we defer to the j ury ’ s implicit det erminations of c red ib ility and weight to be given to the evidence. See Golden Eagle Archer y , Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003).
Here, Southern Industrial ’ s legal and factual sufficiency challenge s wi th respect to th e jur y ’ s $ 3,500 damages assessment focu s o n the al leged lack of evidence showing the FJ Cruiser ’ s market value when the repairs were completed. The Austin Court of Appeals recently considered a si milar argu m ent and concluded that, because the app ellant did not rais e the issue i n the trial cour t, it was

n ot the appropriate standard by which to judge the suf fic iency of the evidence. See Elness Swenson Graham Ar chitects, Inc. v. RLJ II

- C Austin Air, LP , 520 S.W.3d 145, 161 (Tex. App.

— Austin 2017 , pet. denied) (en banc ).

In Elness Swenson , the app ell ant ’ s ar gu ment on appeal “ focus[ed] on the
prop riety of the expert ’ s test imony .

. . about the reduction in the market value of the hotel [.] ” Id

. (emphasis in original). But the relevant jury question did “ not ask

a bout di fferences in market va lue ” nor wa s market value “ defined or me ntioned at any point in the jury cha rge. ” Id . Rather, the ju ry question only inquired as to the dif feren ce between the value of the defe ctively built hotel and the h otel ’ s value if it12

h ad been proper ly constructed. I d

. Poin ti ng out that the appellant “ did not object in the tria l court to the language of [the jury question], propose different l anguage, or request an instruction related to market value, ” the court held that sufficie ncy o f the e vidence would be measu red only ag ai nst th e language in the charge as given

— not the l an guage the appellant asser ted should have been included. Id

. ; see also Romero v. KPH Consol idation , Inc. , 166 S.W.3d 212, 221 (Tex. 2005) ( “ The sufficienc y of the e v id e nce must be m easured by the jur y charge w hen, as here, there has been no objection to it. ” ).

Simi larly here, the relevant question asked th e jury to assess:
[ t ] he dif ference , if any, in the value of the 1974 Toyota FJ

- 40 Land Cruiser when it was recei v ed b y [Southern I ndustrial] and the val ue it would have had if it had been rep aired. The difference in value, if any , sh all be determined at the time and place [Southern I ndustrial] received the vehicle from West Texa s Collision.
In the tria l court, Sout h ern Industrial did not objec t t o the wo r d ing of the question

or request a n instruction related to mar ket value. Therefore, the al leged absence of evidence with respect to the FJ Cruiser ’ s market value is not determinat ive o f our evidentiary sufficiency a n alysis

— we mea sure the evid enc e agains t the char ge as given. See Romero , 166 S.W.3d at 221; Elness Swenson Graham Ar chitects, Inc

. , 520 S.W.3d at 161

.

“ The jury has discretion to aw ard damages within the range of evidence presented at trial , so long as a rational ba sis exists fo r t he jury ’ s c alculation

. ” Elness Swenson Graham Ar chitects, Inc

. , 520 S.W.3d at 16 2. Therefore , a jury ’ s damages finding will not be disregarded m erely because its reasoning in arriving a t i ts figure may be unclear ; ther e is no requiremen t that a damages a w ar d match up precise ly with figure s presented into evidence. Pleasan t v. Brad ford , 260 S.W.3d 546, 559

- 60 (Tex. App.

— Austin 2008, pet. denied).13

Here, considered in light of the charge language, we conclude the record contai n s legally and factually suff ici en t evid ence to su pport the jury ’ s $3,500 damages assessment. Baxter testified that he purch ased the FJ Cruiser in 2014 for $3,600. Sh ortly thereafter, Baxter said he dro ve the vehicle to Southern Industrial ’ s shop for an

e n gine overhaul. Signed app rox imate ly 1.5 years later, t he parties ’ agreement states that “ Southern Industrial Engines, LLC will pr ovide all labor and parts to overhaul engine in 1974 Toyota FJ

. ” The agreement states that the price for thi s service is $7
, 600 plu s tax. Although t h e part ies ’ agreement states that “ all labor and parts ” for the FJ Cruiser ’ s engine overhaul were to be provided by Southern Industrial, the jury also heard testimony suggesting that Baxter failed to provide parts necessary to

co mplete the vehicle’s work. Sp ecifical ly, Thomp son said he told Baxt er that the
FJ Cruiser ’ s transmission was cracked and would need to be replaced. Ac cording

to Th ompson, Baxter repeatedly said he would bring a new tr a nsmission for the FJ Cruiser but n ev er followed thro ugh. Thomp son testifi ed that the work on the FJ Cruiser ’ s engine was comple te except for the necessary transmission. Therefore, although Baxter had dr iven the FJ Cruiser to Southern In dustrial ’ s shop in 2014, the vehicle wa s no longer i n a drivable condition.

Thi s t estimony and evidence is legally and factually sufficient to support t he jury ’ s findin g of $ 3 ,500 as “ [t]he difference, if any, in the value of the 1974 Toyota
FJ

- 40 Land Cruiser when it was receiv ed by [Souther n I ndustrial] a nd the value it would have had if it h ad been rep aired

. ” The evidence shows the parties agreed that $7,600 in work would be perfor med by Southern Industrial to r ebuild the FJ Cruiser ’ s engine; however , the jury also heard that Baxter did no t provi de all p arts
necessary for the r epa ir, which p revented the vehicle from be ing restored to a14

driv able condition. The evidence therefore sup po rts aw arding less than the full $7,600 contra cte d for the repair . Measured against the jury charge and in l ight of the d is cretion a fforded to a jury ’ s d amages a ssessments, we conclude the jury ’ s $3,500 finding is supported by legall y and factually sufficient evidence

. See
Romero , 166 S.W.3d at 221 ; Elness Swenson Graham Ar chitects, Inc

. , 520 S.W.3d

at 16 2.

We overrule Sout he rn Industrial ’ s first and s eco nd issue s.
II. Evidentiary Sufficiency of the F

- 250 Damages Assessme nt and the Wording of the Ass ociated Jury Question In its appellate brief, Southern Industrial also j o intly ad dresses its third an d fourth is sues, which c ha llenge the F

- 250 damages qu est ion and the jury ’s respon se there to. This question asked the jury to asses s “ [ t ] he reasonable and necessary value of the Ford F25 0 truck , ” to which the jury responded : “$ 60,000. ” Southern Industrial alleges th e wording of th e question is deficient for th e follow ing reasons: (1) the question did n ot inquire as to “ the fair m arket va lue differen ce on the F

- 250, ” which is the proper measure of damages under a “ benefit of the bargain ” theory; (2) the wording of th e question “ s im ply does not fit any defini tio n of dam ages that can be awar ded in a DTPA cause of action ” ; (3 ) the
que stion di d not ask the jury to value th e F

- 250 “ at any particular time ” ; and (4) t he question did not ask “ what condition t he truck was in a t the time th e jury found it to have a val ue of $60,0 00. ”
However, Southern Industrial did not raise these o bjections i n the trial court

. Therefore, it s c urrent objections to the question ’ s wor ding and any alle ged omissions th erein were waived. See Tex . R. Civ. P. 27 4 (a party objecting to a

c har ge must specify the o bjectionable matter and the grounds of the objection ; a ny complaint concerning any defect, omission, or fault in the pleading is waived15

unl ess specificall y included in the ob jection); Burbag e v. Burbage , 4 47 S.W.3d 249, 256 (Tex. 20 14) (same); see also, e.g. , Steubner Realty 19, Ltd. v. Cravens
R d. 88, Ltd. , 8 17 S .W. 2d 160, 164

- 65 (Tex. App.

— Houston [14th Dist.] 1991, no pet.) ( concluding th e appellant “ waived any objection to the wording of question 13 s in ce [the appellant] did not obj ect to t he submission of question 13 on this basis ” ).

Southern Industrial also a sserts the submission of t he F

- 250 damages question contravenes Texas Rule of C ivil Pr ocedure 278, which requires the trial

court to submit tho se questions “ which are raise d b y the wr itten pleadings and the evidence. ” See Tex. R. Civ. P. 278. To sup port this argument, Southern Industrial points out that Baxter ’ s live petition makes no mention of the “ reasonable and necessary value of the Ford F 25 0. ” But like the challenge s d iscussed above, Southern In dustrial did not assert this objection in the tri al court and raised it f or the first time on appeal . Therefore, it too is waiv ed. See Tex. R. Civ. P. 274. Finally, Southern Industri al asserts th e evidence is legally and fac tua lly insu f ficie nt to support the jur y ’ s F

- 250 damages assessment because “ [n] o t a single witness testified to the ‘ reasonable and necessary value ’ of the F2 50. ” We disagree. Southern Industrial did not cite any case law to s up port its contention that wi tne sses mus t s pecifically testify as to “ reasonable and necessary value ” when a jury question asks for the same, and we decline to reach that c onclusion here. See also Reinhardt v. Walker , No. 14

- 07

- 00304

- CV , 2008 WL 2390482, at *5 (Tex. App.

— Houston [14t h D ist.] Ju ne 12, 200 8, pet. denied) (mem . op.) ( “ Concerning the absence of spe cific testimony stating tha t the repairs were ‘ reasonable and
necessary, ’ we ha ve not in the past required testimony utilizing such spe ci fic words b ut instead considered whether th e plaint iff has presented sufficient evidence to16

justify the finding that th e costs at issue were reasonably and necessarily sustained

. ” ); C ountry Vill. Ho mes, Inc. v. Patterson , 236 S.W.3d 413, 442 (Tex. App.

— H ouston [1st D is t.] 2007, pet. granted, jud gm ’ t vacate d w.r.m.) ( “ It is not necessary to use the words ‘ reasonable ’ and ‘ n ecessary ’ to establish t he right to recover costs of repair. ” ).

Our review of the record shows that legally and factually sufficient e vidence
supp or ts the jury ’s finding of $6 0 ,0 00 as th e “ reasonable and necessary value of the Ford F25 0 truck

. ” Baxter s aid he continu ed to make $1,000 monthly pa yments on the F

- 250 for seven months afte r the truck was dropped off at Southern Industrial. After the F

- 25 0 was repossessed and sold, Ba xter tes tified that a $10,000 debt remained. According to Baxter, he purcha sed a 2013 F

- 3 50 in October 2016 to replace the F

- 250 he was una ble to retrieve fr om Southern Industrial and put appro ximately $28,000 down for t he ve h icle ’ s purchase

. Baxter said t h e F

- 350 was a “total loss vehicle ” and required $19,000 of work , which he

co mpleted

. Taki ng these figures together, they show that approximate ly $64,000 was spent to r ecoup t he value of the F

- 250 that could not be retrieve d from Southern Industrial

. T her efore, t his evidence is legally and factually sufficient to support the jury ’ s $60,000 finding.

III. T he Wording of the F

- 250 D amages Question In its fifth issue, Southern Industrial reiterates arguments ra ised in its thi r d

an d fourth issues regarding th e F

- 25 0 damages question and asse rts (1) the question did n ot inquire as to “ the fair m arket value differen ce on the F

- 250, ” whic h is the proper measure of damages under a “ benefit of the bargain ” theory ; (2) the wording of the question “ simply does no t f it any d efinition of damages that can be awar ded in a DTPA cause of action ” ; ( 3 ) the que stion did not ask the jury to value th e F

- 250 “ at any part icular time ” ; ( 4 ) t he question did not ask “ what17

condition t he truck was in at the time the jury found it t o h ave a va lue of $60,000 ” ; (5) Baxter ’ s petition faile d to plead damages for the “ reasonable and necessary value of the Ford F2 50 ” ; and (6) no witnesses s pecifically testif ied as to

“ reasonable and necessary val ue ” of the F

- 25 0 . For the rea sons discussed ab ove in S ection II, we overrule these arguments.

We overrule Sou thern Industrial ’ s fifth issue.

IV. Evidentiary Sufficienc y of the Jury ’ s “ Producing Ca use ” Finding Question No. 1 asked the jury as follows w ith respe ct to S outh ern Industrial ’ s liabili ty unde r th e DTPA :
Di d [Southern Industrial] engage in any false, misleading, or deceptive act or practice that Steve Baxter rel ied on to his detriment and that was a producing cause of damages to Steve Baxter?

“ Producing ca use ” means a cause that was a su bst antial f actor in bringing about the damages, if any, and without which the damages would not have occurred. There may be mor e than one producing
ca u se.

“ False , misleading, or deceptive act or practice ” mean s any of the fo l lowing:
1. R ep resenting that go ods or s ervices are or will be of a particular standard, quality, or grade if they were of another;
2. Representing that good s or services have c haracteristics which they do no t have;
3. Faili ng to disclose in formation about goods or servi ces that was k no w n at the time of the transaction with the intention to induce Steve Baxter into a transaction he would not hav e entered into if the information had been di sclosed;
4. Advertising services with intent not to se ll them as adve r tised;
or
5. R epresenting th at work or services were performed on goods,18 or parts were replaced in goods when the work o r services were not performed on goo ds, or the parts were not replaced. The jury responded, “ Yes. ” On appea l, Southern Industrial arg u es that the

ev idence is lega lly and fac tually insufficient to “ support a fin ding that [Southern Industrial] wa s the ‘ produci ng cause ’ of the repossession of the F250. ” We disagree. At trial, Sou thern Ind ustrial ’ s counsel asked Baxter wh y he purchased t he F

- 350 inste ad of “ paying you r paymen ts and keeping your original

v ehicle. ” In resp onse , Baxter testified: “ I could n ’ t get the original vehicle back fro m [So uthern Industrial]. I ha d to replace it. That was not my choice. I had to

ru n my business. ” Co ntinuing on , Baxter said he “ needed a vehicle fo r use for [his] shop. That was m y shop vehicle. ” Baxter repeatedly testified that Southern Indus trial a nd T h ompson refused to return the F

- 250

. The jury also heard the following deemed admission s that were read into evide nce:
That [S outhern I ndustrial] refused to return [Baxter ’ s] Ford F

- 250 and 19 74 Toyota FJ upon request after [West Texas Collision] had completed the repairs on the bus.
That due to [Southern I ndustrial ’ s] refusal to return [Baxter ’ s ] Ford F250, [Ba xter ] had to pur chase an other vehicle to replace the Ford F250 to be able to continue his work.
That [Baxter] has suffered e conomic dam ages in the amount necessary to purchase a replacement vehicle due to [Southern I ndustr ial] and Du sty T hompson ’ s refusal to return t he Ford F25 0 t o Steve Baxter.
That Santander Consumer US A, Inc. repos sessed the Fo rd F250 while the vehicle was still in [Sout hern I ndustrial ’ s] possession. From this evidence, the jury reasonably could find t ha t Southern In d ustrial engaged in a false , m isl eading, or dece ptive act or practice that was a substantial19

factor in brining about Baxter ’ s damages, i.e. , the loss of the r ea sonable and necessary value of the F

- 250 that Baxter was unable to retrieve from Southe rn Indust r ial

. This includes damages t hat stem fr om the F

- 250 ’ s repossession w hich, according to Baxter ’ s testimony, he believed were necessary to enable him to purcha se a replacement vehicle. Accordingly , the evidence is legally and factually suff icient to suppo r t this challenge d find ing.

W e o ver rule Southern In dustrial ’ s sixth issue.

V. Offset

In it s seventh issue, Southern Industrial asserts that it is e ntitled to offset two
amounts against the j ury ’ s $60,000 F

- 250 damages assessment : (1) t he $12,000
ins u ra nce check Baxter received prio r t o taking the F

- 250 to Southern Industrial, and (2) the F

- 250 ’ s $37,000 purchase price when it was sold at auction following i ts repossession.

“ The right to offset is an affirmative defense. The burden of pleading and
p ro ving facts necessary to suppor t a n affirm ative defense of o ffset rests on the party making the assertion. ” White v. Baugh , No. 03

- 05

- 00704

- CV , 2008 WL 221998 7, at * 7 (Tex. App.

— Austin May 28, 2008, no pet.) (mem. op.) ( citing Mays v. Bank One , N.A. , 150 S .W.3d 897, 899 (Tex. App.

— Dall as 20 04, no pet.) )

. Here, Southern Industrial did not plead th e affirmative defense of offset nor did it request a jury instruc tion on the issue. Therefore, Southern Industrial wai ved its arguments regarding offset and ca n no t raise them for the first tim e o n appeal

. Se e id .; see a lso , e.g. , Wheelbarger v. Landing Council of Co

- Own ers , 471 S.W.3d 875, 891 (Tex. App.

— Houston [1st Dist.] 2015, pet. denied) ( “ Bu t the [appellee] did not p lead offset as a defense, nor did it obj ec t to the jury questions regard ing damages or request alter native questions. The argument is theref ore waived. ” ) ; Columbia Med. Ctr. of Las Colinas v. Bush , 1 22 S.W.3d 835, 862 (Tex. App.

—20

Fort Worth 2003, pet. denied) ( “ Regardless of the m erits of Appell an ts ’ argument that they are ent itl ed to an offset, because they d id not plead an affirmative defense of offset, the issue is waived. ” ).

We overrule Southern Industrial ’ s seventh issue.

C ONCLUSION
We affirm the trial court ’ s November 30, 2022 final jud gm ent.

/s/ Meagan Hassa n J ustic e

Pan el con sists of Justices Hassan, Poissant, and Wilson

.