William Brown v. Petty Flying Service, Inc.

Opinion filed November 7, 2024

In The

Eleventh Court of Appeals
__________

No. 11-23-00134-CV
__________

WILLIAM BROWN, Appellant
V.
PETTY FLYING SERVICE, INC., Appellee

On Appeal from the 50th District Court
Knox County, Texas
Trial Court Cause No. 10243

MEMORANDUM OPINION
Appellant, William Brown, seeks reversal of the trial court’s judgment for
damages following a jury trial on a breach-of-contract claim brought by Appellee,
Petty Flying Services, Inc. In three issues, Brown challenges the judgment because:
(1) the trial court’s charge and verdict excluded an essential element for breach of
contract; (2) the trial court’s charge did not include Brown’s affirmative defenses;
and (3) Petty failed to present sufficient evidence under the Lodestar method to
support the jury’s award of attorney’s fees. We affirm.
The Trial Court’s Charge Was Not Erroneous
In Brown’s first issue, he complains that the trial court’s charge excluded an
essential element of Petty’s breach-of-contract claim—namely, whether Petty
performed under the contract. In Brown’s second issue, he complains that the trial
court’s charge excluded his affirmative defenses, in particular Petty’s lack of
consideration. These issues are closely related and turn on the same analysis, so we
address them together.
A. Factual and Procedural History
Petty filed a petition alleging that Brown hired it to perform aerial herbicide
application to his pastures. According to Petty, the parties discussed and agreed
upon the specific chemicals to minimize damage to nearby cotton crops while
maximizing effectiveness for the time of year. Petty alleged that it performed its
aerial application to Brown’s 6,300 acres but Brown refused to pay the amount owed
of $83,246.76. Petty’s petition included actions for breach of contract and a suit on
a sworn account.
Brown answered with a general and verified denial and asserted affirmative
defenses. The crux of Brown’s answer alleged that Petty did not provide adequate
consideration to support its claim or that its consideration failed because the
application “failed to kill or subdue the weeds or brush.”
The matter proceeded to a jury trial. Prior to the trial, both parties filed
proposed jury charges. Relevant to the issues before us, Brown filed two proposed
charges, which focused on whether Petty breached the parties’ contract, either
completely or partially, and what damages, if any, Petty owed to Brown for said
breach. During the charge conference, Brown did not object to the trial court’s
charge, but instead provided a third proposed jury charge. Like Brown’s first two
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proposed charges, the third charge focused on whether Petty breached the party’s
contract, partially or completely. The trial court rejected Brown’s proposed jury
charge.
The trial court’s charge that was submitted to the jury included the following
relevant questions and instructions:
QUESTION 1

Did Plaintiff and Defendant agree that Defendant would pay
Plaintiff for the application of the herbicides referenced in the invoice
applied by Plaintiff to Defendant’s property?
In deciding whether the parties reached an agreement, you may
consider what they said and did in light of the surrounding
circumstances, including any earlier course of dealing. You may not
consider the parties’ unexpressed thoughts or intentions.
....

QUESTION 2
Answer this question if the answer to Question 1 is “yes”,
otherwise do not answer this question.
Did Defendant fail to comply with the agreement, if any?
....

QUESTION 3

If you answered “Yes” to question 2, answer the following
question. Was the defendant’s failure to comply excused?
Failure to comply by the defendant would be excused if you find
that Plaintiff had previously failed to comply with a material obligation
of the same agreement.

A failure to comply must be material. The circumstances to
consider in determining whether a failure to comply is material include:

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1. the extent to which the injured party will be deprived of the
benefit which he reasonably expected;
2. the extent to which the injured party can be adequately
compensated for the part of that benefit of which he will be deprived;
3. the extent to which the party failing to perform or to offer to
perform will suffer forfeiture;
4. the likelihood that the party failing to perform or to offer to
perform will cure his failure, taking into account the circumstances
including any reasonable assurances;
5. the extent to which the behavior of the party failing to perform
or to offer to perform comports with standards of good faith and fair
dealing.

....
QUESTION 5
If you answered “Yes” to question 3, answer the following
question.
Did Plaintiff perform compensable work for Defendant for which
it was not compensated?

Plaintiff performed compensable work if it rendered valuable
services or furnished valuable materials to Defendant; Defendant
accepted, used, and benefited from the services or materials; and, under
the circumstances, Defendant was reasonably notified that Plaintiff
expected to be compensated for the services or materials.

The jury answered “yes” to Questions One and Two and “No” to Question Three.
Because the jury answered “No” to Question Three, it was not required to answer
Question Five. The jury awarded Petty $83,246.76 in damages and $47,000 in
attorney’s fees. The trial court entered a judgment for Petty in accordance with the
jury’s verdict.
B. Applicable Law & Standard of Review
To prevail on a breach-of-contract claim, a party must establish the following
elements: (1) the existence of a valid contract; (2) performance or tendered

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performance by the plaintiff; (3) breach of the contract by the defendant; and
(4) damages to the plaintiff as a result of the defendant’s breach. Caprock Inv.
Corp. v. Montgomery, 321 S.W.3d 91, 99 (Tex. App.—Eastland 2010, pet. denied).
An affirmative defense is “a denial of the plaintiff’s right to judgment even if
the plaintiff establishes every allegation in its pleadings.” Bracton Corp. v. Evans
Constr. Co., 784 S.W.2d 708, 710 (Tex. App.—Houston [14th Dist.] 1990, no writ).
An affirmative defense allows the defendant to introduce evidence to establish an
independent reason why the plaintiff should not prevail; it does not rebut the factual
proposition of the plaintiff’s pleading. Heggy v. Am. Trading Employee Ret. Account
Plan, 123 S.W.3d 770, 778 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). A
lack of consideration does not fall within the definition of affirmative defense
because it does not provide an independent reason to find against the plaintiff—it
goes directly to the plaintiff’s cause of action. Rather, consideration is a fundamental
element of every valid contract. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d
492, 496 (Tex. 1991); Belew v. Rector, 202 S.W.3d 849, 854 (Tex. App.—Eastland
2006, no pet.). In contrast, a failure of consideration is an affirmative defense that
must be pleaded with verification. See TEX. R. CIV. P. 94; Belew, 202 S.W.3d at
854 & n.4 (explaining the distinction between a lack of consideration and a failure
of consideration).
“It is fundamental to our system of justice that parties have the right to be
judged by a jury properly instructed in the law.” Ford Motor Co. v. Ledesma, 242
S.W.3d 32, 44 (Tex. 2007) (quoting Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378,
388 (Tex. 2000)). The plaintiff bears the burden of obtaining affirmative answers to
jury questions regarding necessary elements of his cause of action. Id. Failing to
obtain an affirmative answer on a necessary element requires reversal of the
judgment. See id. at 44–45 (reversing the judgment for a missing order but
remanding for a new trial, rather than rendering judgment, in the interest of justice);
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see also Philadelphia Indem. Ins. Co. v. White, 490 S.W.3d 468, 488–89 (Tex. 2016)
(reversing a judgment due to a lack of affirmative finding on an essential element
and noting that the broad-form question was inadequate under the circumstances).
To preserve an appellate complaint, “[a] party objecting to a charge must point
out distinctly the objectionable matter and the grounds of the objection.” Ford
Motor Co., 242 S.W.3d at 43 (quoting TEX. R. CIV. P. 274). Whether a charge error
is preserved typically depends on whether the party brought its complaint to the trial
court’s attention, timely and plainly, and obtained a ruling. Id. Rule 278 of the
Texas Rules of Civil Procedure states that,
[a] judgment shall not be reversed because of the failure to submit other
and various phases or different shades of the same question. Failure to
submit a question shall not be deemed a ground for reversal of the
judgment, unless its submission, in substantially correct wording, has
been requested in writing and tendered by the party complaining of the
judgment; provided however, that objection to such failure shall suffice
in such respect if the question is one relied upon by the opposing party.

TEX. R. CIV. P. 278. “When the complaining party’s objection, or requested
question, definition, or instruction is, in the opinion of the appellate court, obscured
or concealed by voluminous unfounded objections, minute differentiations or
numerous unnecessary requests, such objection or request shall be untenable.”
Id. R. 274.
On preserving charge error, the Supreme Court of Texas has stated that,
[t]rial courts lack the time and the means to scour every word, phrase,
and omission in a charge that is created in the heat of trial in a
compressed period of time. A proposed charge, whether drafted by a
party or by the court, may misalign the parties; misstate the burden of
proof; leave out essential elements; or omit a defense, cause of action,
or (as here) a line for attorney’s fees. Our procedural rules require the
lawyers to tell the court about such errors before the charge is formally
submitted to a jury. TEX. R. CIV. P. 272. Failing to do so squanders
judicial resources, decreases the accuracy of trial court judgments and

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wastes time the judge, jurors, lawyers, and parties have devoted to the
case.

Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 829–30 (Tex. 2012) (concluding
party’s pretrial proposed jury charge was insufficient to preserve party’s appellate
complaint of missing questions).
C. Analysis
We begin by addressing Petty’s argument that Brown failed to preserve his
first issue by failing to specifically object to the exclusion of a question regarding
Petty’s performance under the contract. When asked by the trial court if he had any
objections, Brown simply stated, “I have requested submissions which I have
included in the Defendant’s Proposed Jury Charge, which I’ll present to the Court.”
Brown did not expound on what purpose for which he was presenting his own
charge, nor did he ask the trial court to include in the trial court’s charge a jury
question on whether Petty performed under the contract. Brown’s proposed jury
charge asked whether Petty “breached its contract . . . by failing to provide adequate
consideration” and whether Petty had only “provided partial consideration.” The
proposed charge further included findings for damages and attorney’s fees that
would necessarily require being predicated on an affirmative counterclaim for
breach of contract. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(b)(8)
(West Supp. 2024) (allowing for recovery of attorney’s fees for a claim for breach
of contract); In re Nalle Plastics Fam. Ltd. P’ship, 406 S.W.3d 168, 173 (Tex. 2013)
(“To recover attorney’s fees under this statute, a party must first prevail on the
underlying claim and recover damages.”). Brown included no such counterclaim in
his petition nor was it tried by consent. Thus, Brown’s proposed jury charge was
obscured by his unnecessary requests for damages despite failing to plead them. See
TEX. R. CIV. P. 278. Further demonstrating lack of preservation error, Brown did not
specifically raise concerns about omitted elements, defenses, or causes of action
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prior to submission of the trial court’s charge to the jury. See Cruz, 364 S.W.3d at
829–30.
Brown argues that, although he did not plead a counterclaim, Petty
nonetheless admitted that Brown had brought a counterclaim when it filed a general
denial. However, Brown provides no authority that stands for the proposition that
unknown and unpleaded counterclaims are somehow validated by an opposing
party’s general denial, and we have likewise found no such authority. Moreover,
Brown’s failure to specify the purpose of his proposed jury charge or to object to the
now complained-of exclusion of same further obscures whether Brown distinctly
brought his complaint to the trial court’s attention and obtained a ruling. See Ford
Motor Co., 242 S.W.3d at 43.
Brown similarly waived at least part of his second issue. On appeal, Brown
complains that his pleaded affirmative defenses and counterclaims were excluded
from the trial court’s charge. However, Brown’s proposed jury charge did not
include any instructions, definitions, or questions regarding a failure of
consideration. See id.; see also TEX. R. CIV. P. 94 (identifying failure of
consideration as an affirmative defense); Belew, 202 S.W.3d at 854 (noting that lack
of consideration goes to a plaintiff’s elements for breach of contract, not as an
affirmative defense). Consequently, we conclude that Brown failed to preserve his
complaint for appellate review.
Even assuming that error was preserved, we disagree with Brown that the trial
court’s charge entirely excluded the required element of Petty’s performance under
the contract. Question Three specifically instructed the jury that Brown would be
excused from his performance under the contract if Petty failed to comply with a
material obligation of the same agreement and asked the jury whether such occurred.
The jury was asked, and answered in the negative, whether Brown was excused from
performing under the contract due to Petty’s failure to perform. Thus, the trial
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court’s charge properly instructed the jury on the law and the jury’s answer
necessarily rejects the affirmative defense of excused performance due to material
breach. Question Three to the jury encompassed instructions addressing the very
fact issues that Brown had proposed through the jury charge he offered. In a motion
for new trial, Brown recognized that Question Three indeed addressed his claim for
lack of consideration. He argued that “[t]he testimony and evidence conclusively
proves as a matter of law that [Brown’s] failure to perform under the terms of the
contract was excused by [Petty’s] substantial failure of performance of the terms of
the contract which [Petty] agreed to perform constituting a failure of consideration.”
Additionally, Question Five allowed the jury to award Petty partial damages if it
found that Petty had only partially performed. Accordingly, Brown’s first and
second issues relating to the trial court’s charge are overruled.
Brown Failed to Preserve His Challenge to Attorney’s Fees
Brown’s third issue challenges the jury’s award of attorney’s fees for Petty.
Brown challenges the award on two bases, arguing that the entire award should be
reversed because his counsel was not allowed to present contradicting evidence
regarding the reasonableness of the fees and, if we disagree, a portion of the award
should be remanded for remittitur for failing to comply with the Lodestar
requirements.
A. Relevant Facts
Petty presented one of its attorneys, Don Malone, as an expert witness on the
issue of attorney’s fees. Malone explained his role in the case from beginning to end
for the jury, including some of his tasks such as discovery requests and responses
and taking depositions. Petty offered, without objection, his counsel’s billing
records, which the trial court admitted. The records showed the total amount billed
for pretrial work as $32,756.75. Malone explained that he is familiar with the fee
rates in the region and believed hourly rates between $250 to $350 were reasonable.
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Malone also testified that the descriptions for time billed reflected reasonable and
necessary activities. Malone agreed with Petty’s other trial counsel, Daniel
Callahan, that an additional twenty-four hours for trial time at $350 per hour was
reasonable for “Sunday, Monday, [and] Tuesday,” totaling an additional $7,200 for
Callahan. Malone testified that his own fees amounted to $7,000. Finally, Malone
testified that he believed $47,000 was a “reasonable fee to ask the jury to award for
necessary legal services” based on “all the work that’s taken place.”
Brown offered his attorney as an expert on attorney’s fees; however, Petty
objected, arguing that Brown, as defendant, did not have an affirmative claim for
relief that would entitle him to be awarded attorney’s fees. Brown specified that he
wanted to put on evidence of attorney’s fees “[f]or the defendant.” The trial court
agreed with Petty but permitted Brown to make an offer of proof to preserve his
complaint for appellate review.1 Brown’s attorney testified that $250 to $350 was a
reasonable hourly rate for the area and offered his own invoice as an exhibit, opining
that the amount reflected on the invoice was reasonable.
The jury found reasonable and necessary attorney’s fees for Petty in the
amount of $47,000 and the trial court entered a judgment for Petty reflecting the
same.
B. Applicable Law & Standard of Review
A party who succeeds on a breach-of-contract action and recovers damages
may also recover attorney’s fees. CIV. PRAC. & REM. § 38.001(b)(8); In re Nalle
Plastics Fam. Ltd. P’ship, 406 S.W.3d at 173.
Except for fundamental error, to preserve a complaint for appellate review, a
party must present to the trial court a timely and specific request, objection, or

1
Although the trial court and parties referred to it as a “bill of exception,” it was actually in the form
of an offer of proof. See TEX. R. APP. P. 33.2 (noting that a party must “file” a bill of exception); see also
TEX. R. EVID. 103(a)(2) (directing parties to “inform[] the court” of the substance of offered evidence “by
an offer of proof.”).
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motion. TEX. R. APP. P. 33.1(a); Wal–Mart Stores, Inc. v. McKenzie, 997 S.W.2d
278, 280 (Tex. 1999) (per curiam). In particular, to preserve a legal-sufficiency
challenge from a jury trial, a party must have specifically raised its complaint in:
(1) a motion for instructed verdict; (2) an objection to the submission of a jury
question; (3) a motion for judgment notwithstanding the verdict; (4) a motion to
disregard the jury’s answer to a vital fact question; or (5) a motion for new trial.
Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991); U.S.A. Precision Machining
Co. v. Marshall, 95 S.W.3d 407, 411 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied). In a civil case, a motion for new trial is required to complain of factual
insufficiency of the evidence to support a jury finding. TEX. R. CIV. P. 324(b)(2).
We find no statute singling out attorney’s fees for any special treatment, so here we
conclude that jury findings on attorney’s fees should be given the same effect as jury
findings on attorney’s fees in any other civil case. See Interest of D.A.C.-R., No. 05-
21-00033-CV, 2022 WL 2302172, at *7 (Tex. App.—Dallas June 27, 2022) (mem.
op.), judgment set aside, opinion not vacated, No. 05-21-00033-CV, 2022 WL
2737752 (Tex. App.—Dallas July 14, 2022, pet. denied) (supplemental mem. op.).
Brown did not preserve his factual insufficiency challenges by asserting them in a
motion for new trial. See TEX. R. CIV. P. 324(b). And he did not preserve a legal
insufficiency challenge in his new trial filings or otherwise. See Pearcy v. Brewer,
No. 05-16-00194-CV, 2016 WL 7473907, at *2 (Tex. App.—Dallas Dec. 29, 2016,
pet. denied) (mem. op.) (listing ways to preserve legal sufficiency challenges). For
an offer of proof to properly preserve error for appellate review, it
must show the nature of the evidence specifically enough so that the
reviewing court can determine its admissibility. The offer of proof may
be made by counsel, who should reasonably and specifically summarize
the evidence offered and state its relevance unless already apparent. If
counsel makes such an offer, he must describe the actual content of the
testimony and not merely comment on the reasons for it.

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PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 511 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (internal citations omitted).
C. Analysis
Brown does not clearly articulate his argument as one attacking the factual or
legal sufficiency of the evidence supporting the jury’s finding of reasonable and
necessary attorney’s fees. For example, Brown does not present the standard of
review for challenging factual or legal sufficiency but nonetheless complains that
the evidence presented falls short of established precedent for proving attorney’s
fees. See, e.g., Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997) (setting out factors to be considered when determining whether rates
and hours are reasonable). However, Brown failed to preserve any sufficiency
complaint for appellate review. See TEX. R. CIV. P. 324(b)(2); Cecil, 804 S.W.2d at
510–11. Although Brown filed a motion for new trial, he did not challenge the jury’s
award of attorney’s fees. See TEX. R. CIV. P. 324(b)(2); Cecil, 804 S.W.2d at 510–
11. Nor did Brown utilize any other method to preserve his complaint. See TEX. R.
CIV. P. 324(b)(2); Cecil, 804 S.W.2d at 510–11.
To the extent Brown argues that the trial court’s exclusion of his own
attorney’s fee testimony requires reversal of the entire fee award, we disagree.
Importantly, during Brown’s offer of proof, the only evidence offered was his own
counsel’s invoice and opinion that the amount incurred in defense of Brown, as
reflected, was reasonable. At no time during his offer did Brown present evidence
or argument that he intended to contradict the reasonableness of the rates and time
billed by Petty’s counsel. See Munguia, 484 S.W.3d at 511. Accordingly, Brown’s
offer of proof was inadequate to preserve his argument for appeal. See id. Moreover,
Brown provides no authority for the proposition that the trial court’s exclusion of his
own attorney’s fee evidence would require this court to reverse Petty’s entire award
of attorney’s fees, and we find none. Brown’s third issue is overruled.
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This Court’s Ruling
We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

November 7, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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