## NO. 12

- 23

- 00255

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

AXION SALES FORCE, LLC D/B/A AVCO ROOFING , APPELLANT

V.

RYAN MOORE , APP ELLEE §

§

§ APPEAL FROM THE

COUNTY COURT AT LAW NO

. 2

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Axion Sales Force , LLC d/b/a AVCO Roofing ( AVCO ) appeals the trial court ’ s judgment in favor of Appellee, Ryan Moore. In five issues, AVCO challenges th e trial court ’ s denial of its motion s for directed verdict and for ju dgment not withstanding the verdict , failure to
i mpa nel a 1 2

- person jury, refusal to include AVCO ’ s requested definition in the jury charge, and evidentiary rulings

. We affirm

.

B ACKGROUN D

Moore worked for AVCO , a commer cial and residential roofing company , from September 2019 until his employment was term in ated in November 2021. Subsequently, Moore2 sued AVCO for sales commissions he believe d he was owed for commercial roofing projects on
which he served as either a n account manager or sales manager , in the amount of $354,878.04.
I mmediately prior to t he c omm encemen t of voir dir e, counsel for both parties informed
the trial court of their agreement and understanding that the jury would co nsist of twelve
individuals , ra ther than six

. This issue not having arisen prior to trial, n either attorney wa s able

to imme diately locate the statutory authority p roviding for a tw elve

- person jury in a trial before a county court

. Counsel for AVCO acqui esced to proceeding with a six

- person jury , while counsel
for Moore confirmed on the record the request for a twelve

- per s on pa nel. Th e trial court subsequently pr onounced that “ it ’ s the Court ’ s understanding that in the county court, a six

person jury is provided, and so the Court will proceed on that basis. ” At trial, Moore testified that in 2016, he began w orki ng at AVCO as a s alesman in the residential roofing department on a strictly commission basis. In 2019, AVCO offered him a position in the commer cial roofin g de partment. Alex ander Zimmerman, who managed AVCO ’ s

comm ercial roofing division when Moore began working in that de partm en t , presented Moore
with a document setting forth the pay structure for the new position , which included a base salary

as well as percentage

- based commissions for both jobs Moore proc ured directly and jobs

pro cu red by employees Moore supervis e d

. 1 Dur ing h is employment, Moore proc ured a number
of commercial roofing contracts, including one large contract with Green Acres Bap t ist Church
located in Tyler, Te xas. However, at the time AVCO terminated Moore ’ s employment in 2021 , Moore testified th a t he had not r ec eived the commission payments to which he was entitled for multiple completed jobs, a nd that there were ongoing jobs fo r which he proc ured contracts and
for which he would be owed commission payments in the future. Before hi s terminat ion , Moore

co m piled a spreadsheet estimating the commissions he believed he was owed using AVCO ’ s project datab ase , although Moore admitted that the total invoice number for the Green Acres project was an educated gues s

. 2
Zimmerman testified that AVCO hired hi m t o e stab lish and ma nage it s commercial
roofin g dep artment in 2017 , with “ 100 percent authority ” to develop processes and procedures
fo r th at department , although he would s ummarize his actions at a weekly meeting with the
executive team

. He and Heath H i c ks, AVCO ’ s ow ner a nd CEO , agreed to ask Moore to move to

1 This document was subsequently adm itt ed into evidence as M oore ’s Exhibit 1

.

2 This sprea dsheet was subsequ ently admitted into evidence as Moore ’s Exhi bi t 8.3 the comm ercial department in 201 9, which c ame with a change in Moore ’ s compens ation

structure from a “ 1099 sales rep ” to a “ W

- 2 employee sales rep with a base salary and
commission structure. ” Zimm e rman c reated the do cument in evidence as Exhibit 1 and
described it as “ laying out the sales commission structure and how [Moore] was c ompensated
both for his own sales and then th e sales that were reported to him. ” He stated that both account

mana gers a n d sale s managers ear ned their commissions at the time the contract was signed and
received incremental commission payments when AVCO re ceived an installment payment from
the client. Zimmerman knew of no p olicy within the commercial depa rtment statin g tha t a n employee would no longer receive commissions post

- termination

. He further testified to several specific c ontracts and overall clie nt relationships which, but for Moore ’ s efforts, he did not
believe would have existed.
Dus tin McGhee, former ly an a dmin i strative employee at A VCO , stated that following
Moore ’ s termin ation, someone at AVCO asked hi m to create a sprea dsheet detailing the p otential
commissions owed to Moore, the total of which he recalled as in the range of $180,000.00.
Howe ver, h e learned t h at Moore ’ s commissions would not be paid “ right then ” or “ as the normal proceeding of commissions would have followed

. ” McGhee explain ed that the JobN i mbus

p latform , a software program for budget tracking individual projec ts , cont ained d ata on the
invoic e s submitted to the clie nt, payments made by the client, and commissions paid out. He
further stated that AVCO received a check from Gr een Acres “ in the ballpar k of a million
dollars ” in November of 2021 , b ut no commis sion check was proce s sed for Moore

. H i cks testified that he pu rchased AVCO from t he previous owner in 2016 or 2017

. Hic ks
was unfamiliar with Exhibit 1 before Moore brought this action but b elieved that it was a “ memo of sorts ” to assist the ac counting de par tment w ith calculating commissions

. Hicks explained that

com miss ions for account manager s were paid out as AVCO received money from the client. However, sales m anager co mmissions were not paid out until a job was fully completed, or

“ closed. ” A t the time of M oore ’ s terminat ion , he had al r eady received his “ account manager ” commission payment on “ every dollar ” that AVCO received from the relevant client s

. However, for jo bs that were n ot “ c ompletely closed ” by that time, Moore had not yet received his “ sal es

ma nager ” commission. Hicks furt h er testified to AVCO ’ s co mpa ny polic y that terminated employees receive d no commissions for jobs that were not closed as of the date of termination

. Instead, in w hat Hicks describ ed as a procedure standard t o the r oofing industry, t h e jobs would4 be reassi g ned, and the new account ma n ager would receive the commission payments going
forward

. But , he could n ot locate documentation of th is p olicy “ specific to Mr. Moore

. ”
Va nce Gar vey, a current AVCO employee , testi fied that both he and Moore had
relation s hips with Green Acres, and th ey both attended meeting s with Green Acres person nel i n the process of procuring th e roofing contract. At the time, Garvey was unsure how the
commission would be split between himself and Moore but understood the re would be a spli t of
some kind. Garve y con firmed collecting a “ million dollar check ” from Green Acres in December 2021, and receiv ing a commission pay men t every time Green Acres ma de a payment.
Howe ver, he believed that those payments w ere merely “ a dvances ” on a fut u re commission owed to him, beca use the job was n ot complete

. Garvey stated his understanding that “ a commission is not earned until th e cl ose of the job , ” although he did not testify as t o the b asis of this understanding.
Fo llowing Garvey ’ s testimony and the conclusion of Moore ’ s case i n chief , AVCO moved for a directed verdict, which the court denied. Thereafter, Stephanie Osborn , vice

pre siden t of AVCO ’ s commercial di vision , testified ab out the payment structure from a client to
AVCO following the sign i ng of a contract. She explained t hat AVCO receive s a deposit payment, a nother payment after materials are del ivered to the location , s omet imes a third payment at 50% completion, and then a final p ayment once the project is complete. The account

manager f or the project receive s a commissio n paym ent following AVCO ’ s recei pt of each payment from the client. H owever, sales managers only re ceiv e a comm ission payment once the project is complete , because “ the sales m ana ger ’ s responsibility to that project is n ot c ompleted
or fulfilled until the project is completed. ” Osborn remembered Green Acres paying AVCO a check for approximately one mil lion dollars in November o r De cember of 2021 and affirmed that
AVCO did not make a commission payment to Moore in connec t ion with this check. Moore ’ s trial co unsel then asked Osborn to review several of the jobs listed on Moore ’ s spreadsheet of projects f or w hich he cl aimed AVCO owed him commission payments. F or more th an ten of the
listed jobs , Osborn confirmed that th e p roject was complete d and AVCO recei ved payment from
the client

. She testified that Moore received “ one last check ” following his termi nati on, but she

was unaware what commissions tha t check represented

. The jury answered aff irmatively to the questions “ Did Ryan Moore and AVCO Roo fin g enter in to an agreement to pay Ryan Moore commissions on sales for AVCO Roofing ? ” and5 “ Did AVCO Roo fing fai l to comply with the agreement? ” The jury f urther found that Moo re performed compe nsable work for AVCO for which h e was not compensated, and that AVCO
had in its possession money belonging to Moore. Thereafter, AVCO moved for judgment
notwithstandi ng the verdict. T he trial cour t denied AVCO ’ s moti on and en tered a judgment awarding Moore $200,000.00 in damages for his breach of contract claim, as well as attorn ey ’ s fees and pre

- and post

- judgment inte rest. This appeal followed.

E VIDENTIARY R ULINGS

I n it s fifth issue, AVCO alleges that the trial co ur t abuse d its d iscretio n in admitting a damages exhibit prepared by Mo o re and excluding evidence re garding Moore ’ s c ompeting roofing business

. 3
Standard of R eview

We review a trial court’ s rulings on the ad m iss ion or exclusion of evidence under an
abuse of discret ion sta ndard. Br oders v. Heise , 924 S.W.2d 148, 151

– 52 (Tex. 1 996 ). A trial
court abuses its discretion if i t reaches a decisi on so arbitrary and u nr easonable as to amount to a
cl ear and prejudici a l e rror of law or if it clearly fails to correctly a nalyze or appl y the law

. In re Cerberus Capital Mgmt., L.P. , 164 S

. W.3d 379, 382 (Tex. 2005) (orig. proceeding) (pe r curiam). We will uphold the trial court ’ s ruling if there is any legitimate basis for it. See Owens

Corning Fiberglass Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998).
E rroneous exclusion of evidence requi r es rev ersal only if the error probably resulted i n rendition of an improper judgment. Stat e v. Cent. Expressway Sign Assocs. , 302 S.W. 3 d 8 66 , 870 (Tex. 2009). In determining whether the erro r was h armful, we review the entire record and require the comp l aining p arty to demonstrate that the judgment turns on the particular evidence
admitted or e xcluded. Bay Area Healthcare Grp., Ltd. v. McS hane , 239 S.W.3d 231 , 234 (Tex. 2007) (per cu riam) ; Ci ty of S an Anto nio v. Kopp low Dev., Inc. , 441 S.W.3d 436, 442

– 4 3 (Tex. Ap p.

— San Antonio 2014 , pet. denied )

. A review ing court will not reverse a judgment bec ause a trial court erroneously excluded e v ide nce w hen the excluded evidence is cumulative or not

con t rollin g on a material issue dispositive to the case. See Te x

. Dep ’ t of Transp. v. Able , 35

3 We address Avco ’s evident iary issues before we exam i ne its legal suff iciency points of error because a l egal s ufficiency challenge ma y be sustained wh en t he record disclo ses that the court is barred by r ules of evidence from giving weight to the o nl y evidence offered to prove a vi tal fact

. See City of Kel l er v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005)

.6 S.W.3d 608, 61 8 (Tex. 2 000) ; Garden Ridge, L.P. v. Clear Lake Ct r., L .P. , 504 S. W.3d 428, 441 (Tex. App

. — Hou ston [ 14th Dist.] 20 16, no pet )

. Admission of Moore ’ s Da mages C hart

AVCO asserts that the trial court erred in admit t ing Moore ’ s E xhibit 8, a spreadsheet
created by Moore listing mult iple projects he worked on du ring his employment with AVCO

. The sprea d she et lis t s t he “ invoice amount ” for each project, the amou nt paid to Moo re at the
time of trial , and his calculation o f the remain ing amount owed to him

. The spreadsheet als o included prospective projects for which no invoice amount was available, repre s ent ing pot ential
future commissions owed to Moore should sai d p roje cts mov e forward

. At trial , Moore testified
that h e made the char t before AVCO terminated his employment and after signing a contract f or a job with “ Green Acres Tyler , ” but could not app r oxi mate a d ate , month, or seaso n of the year.
He further stat ed that the $3 ,200,000 invoice amount for the Green Acres j ob was a

“ gue sstimation , ” although the invoice amounts f or the other projects were taken from AVCO ’ s database at an unspecified time.
To preserv e error for appellate review, a timely, specific o bjectio n must be made. T EX

. R. A PP

. P. 33.1. This rul e i s underscored by “ important prudential considerations, ” inc luding

conser vat ion of judicial resources

. USAA Tex. Lloyds Co. v. Menchaca , 545 S.W.3d 479 , 518 (Tex. 2018)

. To protect these important prud ential conside rations

— including those of judicial

econ o my

— we may review the record sua sponte for preservation of e rror. See T EX

. R. A PP

. P.
33.1 (a) (“As a prerequisi te to presenting a comp l ain t for appella te review

. ..”); Federal Deposit
Ins. v. Lenk , 361 S.W.3d 602, 60 4 (Tex. 2012) (“When a party fails to p r eserve error in th e trial court or waives an argument on appe al, an appellate court may not consider t he unpre served or waived issue.”) ; In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003) (describing error pre servati on as

“ threshold to appellate review”) ; Alikha n v. Alikhan , No. 0 3

- 19

- 00515

- CV, 2021 WL 3085844, at *3 (Tex. App.

— Austin July 22, 2021 , pet. denied ) (m em. op.)

. Moreover, t o preserv e er ror on an evid entiary issue , t he complaint made on appeal must c omport with th e objection made before
the trial cour t

. Bonds v. Mayes , N o. 05

- 01

- 01593

- CV, 2002 WL 1981375, at *2 ( Tex. App.

— Dallas Aug. 29, 2002 , no pet. ) (mem. op.) (citing Religious of Sac red Hear t of Te xas v. City of
Houston , 836 S.W.2d 606, 614 (Tex. 1992) )

. A t tri al, AVCO objected to the ad mission of Exhibit 8 on the bas is that the “entire exhibit
is based on hea rsay

. ” However, AVCO now argues on appeal that the trial court abused i t s7 d iscretion in adm itting Exhibit 8 because it was (1) not prop erly a uthenti cated a nd (2)

“ inherently unreliable

. ” AVCO did not make this obj ection before the trial court. Because
AVCO ’ s complaint on appeal does not comp ort w ith its objection at trial, i t i s wa ived. See
Rel igious of Sacred Hear t of Texas , 836 S.W.2d at 614

. We overrul e this portion of AVCO ’ s fifth issue

. E xcl usion of Evidence Regarding Moore ’ s Competing Roofin g Busines s

AVCO argues that the trial court abused its disc retion by sustainin g Mo ore ’ s pretri al
relevance objection to evidence related to “ Moore’s competitiv e roofi ng comp any, Project One Roofing

. ” Alth ough AVCO admits that Moore did not bring a claim for wron gfu l termination, it
contends that the facts surround ing Moore ’ s termin a tio n were “ high l y relevant ” because “ the alleged breach of contract cause of acti on that Moore did bring against AVCO d e als with alleged
commissions that would not have become ‘ owed ’ ‘ due ’ or ‘ earned ’ until after his terminatio n based on how commissions a r e p aid

. ” W e first note that Hicks was permitted to testify at trial
that Moore , along wi th un sp ecified othe r individua l s , star ted a c ompeting roofing com pany before his terminat ion by AVC O

. Second , t o the extent AVCO asserts that it was barred from

pres e nti ng a dditional evidence on this topic, it waived this complaint.
T o preserve error co ncernin g the exclusion of eviden c e, the complaining party must

ac tually offer the evidence and secure an a dverse ruling from the court. Self v. W. Cedar Creek
Mun. Uti l . D i st. , No. 12

- 20

- 00082

- CV, 2021 WL 562 13, at *2 (Tex. App.

— Tyler Jan. 6, 2021 , no pet. ) (mem . op.) (citing Bobbora v. Unitrin Ins. Servs. , 255 S .W.3d 331, 33 4 (Tex. App.

— Dallas 2008, no pe t. ) ). While the reviewing court may be able to discern from the r eco rd the nature of the evidence and the propri ety of the trial court ’ s ruling, w ithout an offe r of pr oof, we

can never determine whether exclusion of the evide nce was harmful. Id. at 335. Th us, when evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence
in th e record to complain of t he exclusion o n appea l. See T EX

. R. E VID

. 103 ( a); Bobbora , 255
S.W .3d at 335. W hen no offer of proof is made before the trial court, the party must introduce the excluded testimony int o the record by a formal bill of excep tions to preserve the evidence for the appellate record

. See T EX

. R. A PP

. P. 3 3.2; Bobbora , 255 S.W. 3d at 335. Fa ilure to
demonstrate the substance of th e excluded evidence results in waiver. See T EX

. R. A PP

. P.
33

. 1(a)(1)(B); Bobbora , 255 S.W.3d at 335.8 Because AVCO did not make an offer of proof or f ile a b ill of exceptions to preserve the
evidence fo r the appella te record, it waived its complaint that the trial court erred in excluding
evidence related to Pr o j ect One Roofing

. We overrule this portio n of AVCO ’ s fifth issue.

D IRECTED V ERDICT In its first issue, AVCO contends t h at the trial court err ed in d enying its motion for
directed verdict because the re was no evidence to support the jury ’ s findings of (1) the existen ce of a v alid and enforceabl e contrac t between it self and Moore; and (2) a brea ch of t he contract by
AVCO

. S t andard of Review and Appl icable Law An appeal from the denial of a motion for d irected verdict is essentially a challenge to the legal s uff iciency of the evidence

. Westport Oil & Gas Co., L.P. v. Mecom , 514 S.W.3d 247, 255 (Te x. App.

— San Antonio 2016, n o pet.); see City of Keller v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005) (noting tha t contesting a directed verdict is a legal sufficiency ch al lenge). “ The final test for legal s ufficiency must always be whether the evidence at trial would en able re asonable
and fair

- mi n ded people to reach the ver dict under re view.” City of Keller , 168 S.W .3d at 82 7

. In performing a legal

- sufficiency review , we must c r edit favorable evidence if rea sonable fact finders could credit it and disregard contrary evid ence un less reasonable fa c t finders could not disregard it. Id. A legal sufficiency challenge may only be sus tained when the record discloses (a) a comp let e ab s ence o f evidence of a vital fact , (b) the court is barred by rules of law or of evidence from gi ving we ight to the only evi dence offered to prove a vit al fact, ( c) the evidence offered to prove a vital fac t is no more than a mer e scintilla of e vide nce , or (d) th e evidence conclusively es tablishes the opposite of the vital fact in question. Id. at 810

. Evide nce does not

e x ceed a scintilla if it is so weak as to do no more than to create a mere surmise or sus picion that
the fact ex ists. Ford Mo tor Co. v. R idgway , 1 35 S.W.3d 598, 601 (Tex. 2 004). We presume that jurors made all inferences in favor of the verdic t, but only i f reasonable minds could do so. Serv. Corp. Int ’ l v. Guerra , 348 S.W.3d 221, 228 (Tex. 20 1 1)

. Jurors may not simply specula te

t hat a p a rticular inference arises from the evidence. Id. A party must prove four elements to successfully establi sh a br each o f contract cause of action: (1) formation of a valid c ontract; (2) performance by the plaint iff; (3) breach by the defendant; and (4) th e breac h caused the plaintiff ’ s damages. S & S Emergency Training Sols,9 Inc. v. Elliott , 564 S.W.3d 843, 847 (T ex. 201 8 )

. To prove the existence of a valid contract, a plaintiff must establish: (1) that an offer was made; (2) the other party a ccep ted in s trict

co mpliance with the terms of the offer; (3) the parties had a meeting of the minds on the essential

terms of the c ontract (mutual assent); (4) each party consented to those terms; and (5) the parties

execute d and delivered the contract wi th t he inte n t that i t be mutual and binding. Menchaca , 545 S.W.3d at 501 n.21.
Formation of a V alid Co ntract

At issue herein are t h e third and fifth elements of contract formation. AVCO contend s that no contract could have ex i sted between it self and Moor e un der whi c h Moore wo uld be paid
commissions for contracts he obtained for AVCO because Exhibit 1 does not set forth all
essential terms of such a contract , and the parties did not reach a meeting o f the minds as to those

esse ntial terms

. S pecifically , A VCO asserts that the parties did not agree on “ the terms of how commissions were to be paid ” ( namely , the time when Moor e becam e en t itled to commission payments for a given project ). AVCO also argues , without citing any authority, that the lack of signatu res or “si gnat o ry sections ” on Exhibit 1 is necessarily dispos itive on the issue of contract
formation. Moore p resented evidenc e at t r ial tha t AVCO made him an offer of employment that
included a ce rtain structure under which he wo uld earn commissions, an d th at he acce p te d the
offer

. Moreover , AVCO does not d is pute that it agr ee d to pay Moore at least some amount of
commiss ion pay ments f or sale s he procured during his employ ment with AVCO ; ( both Hicks
and Osborn testified tha t Moore received all of the com miss ion pa ymen t s to which h e was entitled ). Indeed, AVCO concedes on appeal that “ there is no d ispute as to the [c ommissi on]

pe rcenta ges ” set forth in Moore ’ s Exhibit 1 , admitting that there existed a meetin g of the minds
bet ween the parties as to the com miss ion str uct u re

. As to the allegedly missing essential terms, a valid co ntract for payment of commission s may exi st even in t h e abs ence of an agreement on

“ how a commission is realiz ed or whether the right to a commission ex tends to sales closed after

t he b rokerage r e lationship ends

. ” Perthuis v. Baylor Miraca Genetics Lab ’ y

s, LLC , 645 S.W.3d 228, 234 (Tex. 2022)

. Th rough t he pro cur ing cause doctrine, Texas law supplies a “ default rule ” which applies when a “ valid agreement t o pay a commission ” does no t ad dress thes e questions

.10 Id. Therefore, the absence of contractual language on these points is not dispositive. 4 Fin ally,

r e gardin g the lack of signatures, “Texa s law recognizes that a contract need not be signed to be
‘execute d’ unless the part ies exp lici tly requir e signatures as a condition of mutual assent .” Mid

Continent Cas. Co. v. Glob. Enercom Mgmt., Inc. , 323 S. W.3d 15 1, 157 (Tex. 2010)

. Here, n o such explicit requirement is apparent from the face of the document , and Mo ore testified that he

r ece i ved a copy of Exhibit 1 during a meeting with Zim merman ( that is, that the agreement was
delivered to him )

. Considerin g the f oreg oing, we conclude the evidence was legally suff icient to support the jury ’ s finding tha t a contract exi s ted between the pa rtie s under wh i ch AVCO agreed to pay comm issions to Moore

. See Menchaca , 545 S.W.3d at 501 n.21 ; City of Keller , 168
S.W .3d at 82 7

. F inally , AVCO contends that the statute of frauds bars the e nforcement of any oral agreement between t he parties regarding the pay ment of commi ssions. This assertion does not comport with Texas law

. Even presuming that Exhibit 1 is not a written m em oria li zation of the parties ’ agreement, the statute of f rauds bars enforce ment of oral contracts “ n ot to be performed
within one yea r from the date o f making the agreement

. ” T EX

. B US

. & C OM

. C ODE A NN

. §
26.01 (b)(6) (West 2023 )

. Section 26.01 (b)(6) bars o nly or al contracts that cannot be completed within one year. Gerstacker v. Blum Consulting Engineers, Inc. , 88 4 S.W.2d 845, 849 (Te x. App.

— Da l las 1994 , writ denied ) (citing Niday v. Niday , 643 S.W.2d 919, 920 (Tex. 1982) )

. Indefinite

- term employment contr acts a r e co nsidered performable within one year and therefore
do not fall within S ection 26.01(b)(6) of the sta tute of frauds. Id.
We o verrul e this por tion of AVCO ’ s first issue.
Breach of Contract Having concluded that mo re tha n a scintilla of evidence s u pport s the jury ’ s finding that a
valid contract existed between AVCO and Moor e , we likewise conclude that legal ly sufficient

e v iden ce support s the jur y ’ s finding that AVCO breached the agreement between itself and
Moore.
AVCO argues that there is no evid e nce M oo re rendered substantial performance under
the contract , b ecause Moore could no longer liaise between cli ents and AVCO ( i nclu ding

“ c oll e cting pa yments ” and “ handl[ing] change orders ” ) following his termination

. Th ere fore,
AVCO had no obligation to pa y th e d isputed commissions, and could not have breached by

4 We address more fully inf ra th e a pplicability of the procuring cause doctrine to this case.11 failing to do so. Under th e aforementioned procuring cause doctrin e, a b sent cont r ary contra ctual lang uage, “ the broker ’ s entitlement to a commission vests on his having procured the sale, not on
hi s a ctua l involvement in a sale ’ s execution or continued employment throug h the final
consummation of the sale. ” Perthuis , 64 5 S. W.3d at 23 4

– 35

. The Te xas Supreme Court has identified three main questions which arise when determining whether the procur ing c a use do ctrine applies : (1) whether the parties had the “ kind of contractual relationship to which the procuring

- cause doctr ine applies ” ; ( 2) whether t he parties “ displace [d] the doctrine by the terms of their contractual agreement ”; and ( 3) whether th e sal e s fo r which the plaintiff seeks to recover
commissions were “ the direct and proximate result of the plaintiff ’ s efforts or ser vices

. ” I d

. at 234, 241

- 42. Regarding the first question, “ t he minimum prerequisite for the doctrine to apply is an

ag reem ent to pay a commission on a sale

. ” Id. at 234. T he jury found that Moore and AVCO

enter ed into “ an agreement to pay [ Moore ] c ommi ssions on s ales , ” a finding which we conclude is supported by legally suff ic ient evidence

. Therefore, th e contractual rela t ionshi p between
Mo ore and AVCO is “ the kind to which the procuring

- cause doctrine applies

. ” 5 Id. at 23 7. And,

as AVCO h i ghligh ts i n its arg u m ent on appeal, far fr om “displac[ing ] ” the doctrine ” b y
contractua l agreement, the parties made no explicit agree m ent r egarding either the triggering

event upon which Moore earned his commission payments or what would happen vis

- à

- vis those

paym ents upon M oore ’s termination. “ [P] arties are free to contract to ‘ authorize commissions only on sales that close during the emplo yment or brokerage relationship ’ or ‘ condition commissions on the money from the sal e being received withi n a partic ular t ime frame. ’ ” Five Star Elec. Motors, Inc. v. Patl ovany , No . 01

- 22

- 00417

- CV, 2024 WL 1098206, at *5 ( Tex. App.

— Houston [14th Dist.] Mar. 14, 2024 , no pet. h. ) (mem. op.) ( quoting Perthuis , 645 S.W. 3d
at 237 )

. B u t the contract must expressly say so, and limi ta ti ons or exceptions of this kind regarding commissions on procure d sale s cannot be inferred from silence on the issue. ” Id.

5 A VCO atte mpts to argue that the at

- will nature of Mo or e ’ s employment , as well as his s tatus as a “ W

- 2 employee, ” precludes the existence of an agreement to pay commissions and renders the proc uri ng cause doctrin e in applicable

. How ever, “[d] istinctions in employment status

— for example, whether [M oore] was a n at

- will employee or an independe nt contractor or something else

— have nothing to d o with the question that implicates th e procuring

- cause do ctr ine. ” Perthuis v. Baylor Miraca Ge netics Lab ’ ys, LLC , 645 S.W.3d 228, 238 (Tex. 2022)

. “ Absent the parties’ dir ec ti on to deviate from the default rule, it is analytically u nsound to derive any meaning from the at

- will

- employment cont ext regarding the oblig ation to pay c ommi ssions for sales procured before termination. ” Id. a t 239.12 W e note that the third query, whether Moore wa s the procuring cause of the sales for
whi ch he sought to recover commissions, “ wi ll u sually present a fact question. ” Perth uis , 6 45
S.W.3d a t 243

. When an incomplete theory of recovery is submitted to the jury with out objection and no written findings a re mad e b y the trial court on the mi ssing element, the omitted
element is deemed t o ha ve been found by the court in such ma nne r as to support t he judgmen t if it is reasonable to do so in light of the evidence in the record. T EX

. R. C IV

. P. 279 ; Guerra , 34 8
S.W. 3d at 228

– 29 ; see also Reliable Life Ins. Co. v. Torres , 509 S.W.2d 409, 411 ( Te x. Civ. App.

— Austin 19 74 , writ ref ’ d n.r. e. ) ( “ Omitted i s sues, constitut ing only a part o f a complete and independent ground and being me rely supplemental or incidental t o othe r issues submitted and answered, ” may be deemed found in support of judgment ). In this case , the issue of Moore ’ s procuri ng cause stat u s is a compo nent of his b reach of contract claim (and i n particular, is a sub

comp o nent of the e lement of Moore ’ s perfor mance under the parties ’ agreement) , and necessarily referable thereto. See
, e. g., Stuckey v. Union Mortg. & Inv. Co. , 383 S.W.2d 429,
4 40 (Tex. Civ. App.

— Tyler 1964 , wri t re f ’ d n

. r

. e

. ) (in breach of contract action se eking payment
of commission for pr ocu rement of loan, di sputed sub

- issue of acceptance of performance
deemed fou nd i n support of judgment)

. Moore initially reque sted a jury i nstruction on this issue, citing th e Texas Supreme Court ’s adm on ition in Perthuis , but subsequently withdrew the reques t following AVCO ’s objection ; therefore, the issue was not submitted to the ju ry

. 6 And t he trial

court was not asked to (and did not) r e nder a finding of fact on s aid issue

. Thus , a deemed finding can be made as to Moore ’s procuring cause stat us if there is some evidence to support such a finding

. Ramos v. Frito

- Lay, Inc. , 784 S. W. 2d 667, 668 (Tex. 1990)

. A plaintiff shows his procuring cause status by proving that his efforts were both the

pro ximate and but

- for cause of the relevant sales

. Perthu is , 64 5 S.W.3d at 241

- 42. AVCO does not dispute on appeal that Moore was the proc ur in g cause of the projects listed on Exhibit 8.
Moor e te sti f ied at trial to details about his role as a primary salesp erson for s everal of the jobs
listed , including those f or Gre en Acres , Kluber Lubrication, 4 Star Cinema, Py le Properties,
Coun try Meat M ar ke t, Central Builders, and Pro sperity Bank

. Zimmerm an fur t her testified tha t but for Moore ’ s efforts , AVCO would not have customer relationships wi th Prosperity Bank,
Cent ral Bu ilders, Pyle Properties, and K lu ber Lubrication , and that Moore ’ s contacts w er e

6 “ [T] rial courts should give juri es c lear instructions regarding th e plaintiff's burden to sh o w his s tatus as the procuring cause for each sale at issue an d the def endant ’ s abili ty to defeat t hat showing, in whol e or in part, with evidence that the plaintiff ’ s original role had been overt ak en by events and changed circums tances. ” Id. at 243

.13 i ntegral in getting AVCO “ in the door ” to obtain t he Gre e n Acres job

. Moreover, the contract proposals presented by Moore for Prosperity Bank, G re en Acres, Pyle Propert ie s , and Kluber
Lubrication bear his signature as the representative for AVCO an d ar e si gned b y the respective

c lient repres entatives , fur ther s u pporting his assertion that he was instrumental in procuring those

contracts. Co nversely, AVCO presented no evide nce th at “ no commissions would be due to [Moore] even if [ he ] had remained emp loye d , ” thereby failing to sever the causal link between
M oore a n d the contracts at issue. See i d. at 2 4 3.
We conclude that some evidenc e exists in t he record to support a deeme d find ing that Moore was the procuring cause of at least some of the job co ntracts f or which he sought to

r ecover commissions. Consequen tly, w e conclude that the procuring cause doctrine is applicable
to th is case , and its defau lt rules appl y to the commis sion a greement at issue

— that Moore’s right

t o receive commission s vest ed on his ha vi ng procured the relevan t sale s, and that Moore ’ s
ent it leme n t to those commission s was not conditioned on his continued employment with AVCO
thro ugh final comp l etion of the roofin g projects to which the contracts pertained

. See id. at 23 9

. The foregoing ev id ence of Moore ’ s procurement of sales (and accordin g ly, o f his performance under the parties ’ agreement) is more than a sc intil la. T herefore, we conclude that legally
suf ficien t evidence support s the jury ’ s finding that AVCO br eached the parties ’ agree me nt by
f ailing to pay Moore all amounts he earned as co mmis s ions for projects for which he was the procuring c ause. We o verrule th is portion of AVCO ’s first issue.

J UDGM EN T N O TW ITHSTANDING THE V ERDICT In its second issue, AVCO all eges that t he trial cou rt e rred in deny ing its motion for ju d gment notwithstandin g t he verdic t because n o evidence supports the amount of damages the jury a w arded to Moore for his breach of contr ac t clai m

. Standar d of Review

A trial cour t may disre gard a jury ’ s verdict a nd gr an t a judgment notwit h standing the
verdict if a directed ver di c t would have been proper. T EX

. R. C IV

. P. 301; Fort Be nd Cnty. Drainage Di st. v. Sbrusch , 818 S.W.2d 392, 394 (T ex. 19 91). We review the grant or denia l o f
a motion for judgment notwithsta nding t he verdict under a l egal sufficiency standard , and
therefo r e in corporate the legal

- sufficiency standard stated abov e

. See Tanner v. Nat ionwide
Mut. Fire I ns. Co. , 289 S.W. 3d 828 , 830 (Tex. 2009)

. A trial court prope rly denies a motion for14 JNOV if, l ook i n g at all the evidence in the light most favorable to the f a c t cha llenged or the finding found by the jury, a reasonab le trier of fact cou ld have formed a fi rm belief or con victio n that the fact or finding was true. He lping Hands Home Care, Inc. v. Hom e He a l th of Tarrant Cnty., Inc. , 393 S.W.3d 492, 515 (Tex. App

. — D allas 2013 , pet. denied )

. Applicable Law

To recover dama ges for breach of co ntract, a plaintiff must show that he su ffered a pecuniary loss as a r esult of t he breach. S. Elec. Servs., Inc. v

. C it

y of Houston , 355 S.W

. 3d 319, 323

– 24 (Tex. App.

— Houston [ 1st Dist .] 2011, pet. denied). To recover lost profit damage s, a plaintiff must show the loss by co mpetent evide nce an d with reasonable certainty. See ERI
Consu lting Eng ’ r

s, Inc. v. Swinnea , 31 8 S. W. 3d 867, 876 (Tex. 201 0 ); Tex. Instruments, Inc.
v. Tel e tron Energ y Mgmt., Inc. , 877 S.W.2d 276, 279 (Tex. 1994). “Suc h losses must be the natural, probable, and foresee able c onsequence of the defendant ’ s conduc t.” S. Elec. Servs

. , 355
S.W.3d at 324. A plai ntiff may not recover breach

- of

- contract damages “if those d amage s are remote, contingent, speculative, or conjectura l.” Id. at 323

– 24 ; see Signature Indus. Sevs.,
L .L.C. v. Int ’ l Paper Co. , 638 S.W.3d 179, 186 (Tex. 2022) (c ourts do not “award sp ec ul ativ e damages for any claim that is too remote and depen d [ent] up on too many contingencies.” ).
When reviewing legal sufficien cy, we consider only the evidence and infere nces t hat tend to support the award of damages and d isregard all evidence and infe re nc es to the contrary

. City of Keller , 168 S.W.3d at 826

. F or purpos es of lega l sufficiency review, the factfinder has
discretion to award damages wit hin the range of evid ence p r esented at trial, so long as a rational
basi s e xists for its calc ulation

. Gu lf States Utils. Co. v. Low , 79 S.W.3d 561, 566 (Tex. 2002 ) ; Hertz Equ ip. Rental Corp. v. Barousse , 365 S.W.3d 46, 57 (Tex. App.

— Ho uston [1st Dist.]
201 1, pet. denied)

. A n alysis

AVCO asserts that the record evidence was insu ff ic ie nt to allow a r easonabl e ju ry to award Moore a total of $200,00 0 in damages for l os t co mmission s and futur e unpaid
commissions

. The jury ’ s award was broken down into $71,124.24 for “ unpaid commiss ions

s ustained in the past, ” and $128,875.76 for “ unpaid commissions that, in reas on ab le probab ility,
will be sust ained in the future. ” B ased on the eviden ce b efore the finder of fa ct , we conclude
that a rationa l bas is existed for the jury ’s damages award

.15 D uri ng his testimony, Moore testified to the metho d of calculating his commissio n
pa y ments , hi s role as account manager, sales manager, or b o th in the pro jects listed o n Exhibit 8 , and the source of the invoice amou nts he used in calculating the tot al co mmissi ons he alleged
AVCO owed him

. Although Moore admitt ed that the in voice amou nt f or the Green Acres project was an estimate based upon hi s work in draft ing the contract proposal , both Garvey and
Hicks testified th at AVCO received a check for approxima tely o ne million dollars for this project shortly after Mo ore ’ s termination

. B oth G ar vey and Hicks similarly testified that the pro ject was

n o t yet comple te and not all payments were yet received , although none of the wi tnesses affiliated with AVCO were a ble to testify how much AVCO received from Green Acres t o d ate. The jury could als o re fer to Exhibit 1 and a JobN imbus screenshot provided by M oore setting
fo rth the commission structure for the Green Acres job , which a ppears to contemplate the possibility of a total invoice amount exceeding four million d ollars.
T he total amount Moore s et s forth as owed to him only for project s for Kluber
Lubr i cation, 4 Star Cinema, Py le Properties, Coun try Meat Market, Central Builder s, and
Pro sperity Bank (that is, proj ects a bout which Moore testified to his procurement efforts )

excee ds $85,000.00. At t he time of trial, these p rojects were all either complet e or in pro gress, with Osborn testifying that AVCO already received full payme nt for severa l of them ; the refore,

t he com mission payments in question were no t remote or specu lative

. The estimated

co mm ission a mount for the Green Ac res roofing project is giv e n as $131,200.00 , and the record
contains no indication that said project is u nlikely to con clude, nor that this amount is out of line
with the commission structure under wh ich Moore would have b ee n pa id. Indeed , Garvey (who

was meant to split the Green A c res commission wi th Moore) testified that it was “possible ” h e already receive d c ommission payments exceeding $1 0 0,000. 00 for the incomplete Green Acres project by the ti me of trial

. In evaluatin g th e legal sufficiency of a damages award, we do not lightl y reject the judgm ent of a jury. W & T Offshore, Inc. v. Fredieu , 610 S.W.3d 88 4, 899 (Tex. 2020)

. Given
the doc umenta ry and testimonial evidence herein , we conclu de that a reasonable and fair

- m in de d jury could have arrived at the number this jury did. W e conc l ude that the jury ’ s damages award
is supported by legally sufficien t evidence and overrule AVCO ’ s second i ssue.16 T WELVE
- P ERSON J URY In its third issue, AVCO a rgue s t hat the trial court co mm i t ted reversible error by
i mpaneling a si x
- p erson jury abs e nt any agreemen t by th e parties

. Standard of Review an d Appli c abl e L aw
“In a civil case pendi ng in a statutory co unty c ourt in which the matter in co ntroversy exceeds $250,000, the jury s hall be co mp osed of 12 members unless all o f the parties agree to a j ury composed of a less er number of jurors.” T EX

. G OV ’ T C ODE A N N

. § 2 5.0007(c) (West 202 3).

“ In a civil case trie d in a county court at law, the parti es may, by mutu al agreement, agree to try the c as e with any number of jurors and agree to have a verdic t r endered and returned by the vote of any number of juror s less t han al l those hearing the case.” Id. § 25.2142(v) (West 2023). Where a party is statuto rily entit led to a jury of twelve a nd timely r eq uests same , the refus al to impane l a jury of twelve may c onstitute reversible err or. Rabson v. Rabson , 906 S.W.2d 561,
5 6 4 ( Tex . App.

— Houston [14t h Dist.] 1995 , writ den ied ) ( citing Thomas v. City of O ’ Donnel l , 811 S.W .2d 757 (Tex. App.

— Amarillo 1991, n o writ) ). However, “ a party cannot a gree to a trial

... bef o re six jurors, wait for an unfavorable verdict, and then c omplain abo u t the number of juror s

. ” Audia v. Hannold , 328 S .W.3d 661, 663

– 64 (Tex. App.

— Dallas 2010 , no pet. )

. Similarly , a party ma y w ai ve its complaint regarding the numeric al composition of th e jury by failing to timely raise that compla int before the trial c o urt

. S ee Smith v. Est. of Branch , No. 05

- 90

- 0 0941

- C V, 1991 WL 219469, at *9 (Tex. App.

— Dal las Oct . 11, 1991 , no writ ) (mem. o p

. ) (r ejecting pa rty ’ s attempt “to have two bites of the ap ple by sitting back and allowing a six[

- ]person jury to be seate d witho u t m aki ng his objections known to the trial co urt an d then later hoping to obtain a new trial by c omplaint of this error in hi s mo ti on for new trial”)

. A nalysis

AVCO cla ims that a jury of t we lve was mandatory in this matter because the amount in

con trovers y ex cee ded $250,000 .00 which Moore does not di sp ute. T he record indicates that the

par ties agreed up on a twelve

- person jury in a d va nce of trial, and only became aware of t he trial

c ourt ’ s inten t ion to impanel a s ix

- pers on jury directly before jury sel ection b ega n

. It is perhaps
under standable, then, t hat n either party was able to spontaneou sly raise the requirement
contained in S ec ti on 25 .0007 (c) of the Texas Government Cod e during the en s uin g d iscussion.
T EX

. G OV ’ T C ODE A NN

. § 25.0007(c)

. However, fol lowing t he tri al court ’ s pronounc ement that17 t rial woul d proceed be fore a s ix

- person jury , c ounsel for AVCO expressed agreement , st at i n g ,

“ Your Honor, we don ’ t have any objectio n to wanting t o procee d at six

. ” AVCO is not now
entitled to retroactively resci nd its a gre eme nt and receive anot her “ bite of the app le ” merely
because the verdict was not in its fa vo r. See Audia , 328 S.W.3d at 6 6 3

– 64 ; Est. of Branch , 1991
WL 219469 at *9

. We conclud e that AVCO did not preserve its comp laint regarding the number of ju rors fo r ap pel late review

. T EX

. R

. A PP

. P. 33. 1

. Consequently , we o verrule AVCO ’ s third
iss ue.

J URY C HARG E E RROR

In its four th i ssue, AVCO contends that the trial co urt abused its disc r etion in re fu sing to
include AVCO ’ s pro posed definition of the term “ co ntract ” in the jury charge

. Stand ard of Revi ew a nd Applicable Law

We review a trial court’s decision to i nclude or refuse in st ru ction s and definitions in the jury charge for an abuse o f discretion. See Shup e v. Lingafelter , 192 S.W.3d 577, 579 (Tex. 2006). If we dete rmi ne the trial court abused it s di scretion by defining or refusing to define a term in the ju ry charge, we mus t th en revi ew the entire record to determine if that e rror w a s harmful. See T ite Wat e r Energy, LLC v. Wild Willy ’ s Welding LLC , No. 01

- 22

- 00158

- C V, 2023 WL 5615816, at *7 (Tex . Ap p.

— Houston [1st Dist.] Aug. 31, 2023 , pet. den ied ) (citing Q uantum Chem. Cor p. v . Toenni es , 47 S.W.3d 473, 480 (Tex. 2001) )

. Moreov er, “ [f] ailure to
subm i t a def i nition or instruc tion shall not be deemed a ground for rever sal of the judgment

un less a subs tantially corre ct definition or instruction has been requeste d in writing an d te ndered by the party complaining of the judgment.” T E X

. R

. C IV

. P. 278

. Tex as ’s rul es of procedu re es tablish the preservation requirements to ra ise a jury

- charge

comp laint on a ppeal. Burbage v. Burbage , 447 S.W.3d 249, 256 ( Tex. 2014)

. Th e complainin g
pa rty must inf orm the trial court of the error before the c harge is formally su bmitted to the jury,
and “ must point out distinctly the objectionab le ma tter and the ground s of the objection

. ” T EX

. R. C IV

. P. 274; see also T EX

. R. A PP

. P. 33.1. Under Rule o f Civil Procedu re 274, “[a]ny complaint as to a question, d efinition, or instruc tion, on account of any de fect, omission, or fault
i n pleading, is wa ive d unless specifical ly incl uded in the objections.” T EX

. R. C IV

. P. 274. As a general rule, preservati on r equires (1) a timely objection “stating the grounds for t he ruling that
the com plaining party sought from the trial court with suff icient specific it y t o make the trial18 co ur t aw are of the complaint, unless the specific grounds we re apparent fr om the con te xt ,” and (2) a r uling. See T EX

. R. A PP

. P. 33.1. Stated d if ferently, the test ult imately asks “whether the party made the trial court aware of the c om pla int, timely and pla inly , and obtained a ruling.” Burbage , 447 S.W.3d at 256 ( quoting State Dep ’ t of H ig

hways & Pub. Tra nsp. v. Payne , 838 S.W.2d 235, 241 (Tex. 19 92) )

. T he ultimate pur pose of Rule 274 is to aff ord trial courts an opport unity to correc t err ors in the charge b y r equiring objections both to clearly designate the

error and to explai n the g ro un ds for complaint. Id. ( citing Wilgus v. Bond , 730 S.W.2 d 670 , 672 (Tex. 1987) ). As the Texas Supreme Court h as noted , “trial court awareness is the key .” Cruz v.
Andrews Res toration, Inc. , 364 S.W.3d 817, 83 1 (Tex. 2012)

. A nal ysis

AVCO asserts t hat th e trial court committe d reversible error “ by refusing to s ubmit
AVCO ’s proposed definit ion in the jury charge reg arding the legal definition of a contract [. ] ” However, in the cit ation to the reporter ’ s record supplied by AVCO , we do not lo cate a spec ific

o bj ection to the omissi on of any such def inition

. N or are w e abl e to locate the objectio n from
Moore ( quoted by AV CO) that no definition is neces sar y because “ contract ” is a “ com mon term of [sic] which the jury should b e fami liar. ” Inst ead, within the c it ed page r an ge, Moore object s
to AVCO ’ s proposed inst ructio n on the four el ements of breach of contract, as we ll a s its proposed instruction on the necessity of a mee ting of the m inds , and the trial court sustains both
ob jectio ns

. Finally , AVCO ’ s p ropose d ju ry charg e as submitted to the court contains only t he
in s tru ctions discus sed at the charge conference and does no t contain a suggested legal def inition
of the term “ contra ct. ”
H ere, there is no indication in the record that the trial c ourt was aware of A VC O ’s

con cern regarding the omission of a legal defi nition of the word “co ntract , ” and consequently,
the trial cour t had no opportunity to corr ect the potential erro r. See Cruz , 364 S.W.3d at 830 ( “The aggrieved party mu st show that the trial court was aw ar e of the party ’ s request and denied
it.” )

. Our proc edur a l rules are “ tech nical, but not trivial.” Burbage , 447 S.W .3d at 25 8

. And, although we co nstrue thos e rules libe rall y so that the right to appeal is not lost unnec essarily, i f

an o bjection is n ot s ufficient t o apprise the trial court of the issue a pa rt y later claims is er ror on appeal, the issue must be overrule d. Id. ; Meyers v. 8007 Burne t H oldings, LLC , 600 S .W. 3d
4 1 2, 42 2

- 24 (Tex. App.

— El Paso 2020, pet. denied)

. There was no di scussion on t he record of19 th e issue AVCO now raises on appeal ; conseque n t ly, AVCO waived th is complaint

. T EX

. R.
A PP

. P. 33.1 ; see als o T EX

. R. C IV

. P. 274

. A cco rdingly, we ov errul e AV CO ’ s fourth issue.

D ISPOSITION Having overruled eac h of AVCO ’ s five issues, we a ff ir

m the judgment of the trial court.

J AMES T. W ORTHEN Chi e f Justice
Opi nion delivered May 22 , 2024. Panel consisted of Wort hen , C.J., Hoyle, J. , a nd Neeley, J.

## COURT OF APPEALS

TW ELFTH COU RT OF APPEALS DIS TRIC T OF TEXAS

J UDGMENT

M AY 22 , 2024

NO

. 12-23-00255- CV

AXI ON SALES FORCE, LLCD /B/A AVCO ROOFING , Appe lla nt V. RYAN MOORE , Ap pellee

A ppeal from the County Court at Law No 2
of S mit h County, Texas (Tr.Ct.No. 73900-A)

THIS CAUSE came to be heard on th e appellate record and briefs filed herein, and the same b e ing considered, it is the opinion of this court that there was no error in the judgment.
It is the refo re ORDERED, ADJU DGED and DECREED that the judgment
of the court below be in all things affirm ed , and that all costs of this appeal are hereby adjudged

ag a inst the appellant, Axion Sales Force, LLC d/b/a AVCO Roofing ( AVCO ) for which execution may issue , an d that this deci sion be certif ied to the court below for observance.

J ames T. Worthen , Chief Jus tice

. Panel consisted of Worthen, C.J., Hoyle, J., and N e eley, J.