Affirmed and Memorandum =
Opinion filed=20
March 17, 2009.
In=20
The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-01027-CV
____________
JENETTE=20
DIEM LEE,=20
Appellant
V.
MD LAM,=20
INC.,=20
Appellee
On Appeal=20
from the 151st District Court
Harris County,=20
Texas
Trial=20
Court Cause No. 2002-65195
M E M O=20
R A N D U M O P I N I O N
Jenette=20
Diem Lee appeals from a judgment favoring MD Lam, Inc. MD =
Lam sued=20
Lee, and other members of her family, alleging various causes of =
action=20
relating to the sale of a business. Following a jury verdict =
in its=20
favor, MD Lam elected to recover against Lee for fraud, and the =
trial=20
court entered judgment accordingly. In four issues on =
appeal, Lee=20
contends that the trial court erred in: (1) entering judgment =
against Lee=20
when her liability was Avitiated@ by a=20
jury finding in her favor; (2) allowing MD Lam to elect to recover =
on=20
fraud without a jury finding on proximate cause; (3) Apredicating@=20
judgment against Lee on Aproducing=20
cause@ rather=20
than Anegligence=20
that was proximately caused@; and=20
(4) entering judgment against Lee when the jury returned =
conflicting=20
answers. We affirm.
Background
In its=20
pleadings, MD Lam alleged that defendants made certain promises =
and=20
representations pertaining to MD Lam=3Ds=20
purchase of K&K Cleaners, a dry cleaning plant. These =
promises=20
and representations included that if MD Lam purchased K&K =
Cleaners,=20
defendants would (1) provide proper training to MD Lam, (2) return =
MD=20
Lam=3Ds money=20
if it was not satisfied with the business, and (3) continue to use =
K&K=20
Cleaners to perform dry cleaning services for their other dry =
cleaning=20
businesses. Based on these and other promises and =
representations=20
and the alleged failure to keep them, MD Lam raised causes of =
action for=20
common law fraud, civil conspiracy, breach of contract, breach of =
implied=20
warranty, and deceptive trade practices. The jury returned a =
verdict=20
against Lee on all causes of action submitted. MD Lam then =
elected=20
to recover for fraud against Lee, and the trial court entered =
judgment=20
accordingly. In support of her appeal, Lee has filed a=20
clerk=3Ds record=20
but not a reporter=3Ds=20
record.
Discussion
In her=20
first issue, Lee contends that judgment against her was in error =
because=20
her liability was Avitiated@ by a=20
jury finding in her favor. In her fourth issue, Lee contends =
that=20
judgment against her was improper because the jury returned =
conflicting=20
answers. In support of both of these contentions, Lee =
specifically=20
points to jury question no. 14, which asked: ADid=20
Defendants agree to provide proper training and return=20
Plaintiff=3Ds money=20
if they [sic] were not satisfied with K&K =
Cleaner[s]?@ =20
In regards to Lee, the jury responded Ano@ to=20
question no. 14, thus indicating that Lee did not make the listed=20
promises. Question no. 14, however, was a predicate question =
to=20
question no. 15, which asked whether the defendants, including =
Lee, failed=20
to comply with the promises set forth in questions no. 14 or=20
13. Question no. 13 asked the jury ADid=20
Defendants agree to use K&K Cleaner[s] as the plant to perform =
dry=20
cleaning for their substations?@ =20
In response to question no. 13, the jury found that Lee did in =
fact make=20
such a promise, and in response to question no. 15, it found that =
Lee=20
failed to comply with that promise.
Lee=20
offers no explanation as to how a negative response to one of two=20
predicate questions in a breach of contract submission could =
Avitiate@ or=20
conflict with the findings of liability either on the contract =
submission=20
itself or the fraud submission (questions 1 through 3) on which =
the=20
judgment was based. We see no such conflict. The =
judgment is=20
supported by the jury=3Ds fraud=20
finding, which does not conflict with and is not vitiated by the =
negative=20
response to one of two contract predicate questions. =
Accordingly, we=20
overrule Lee=3Ds first=20
and fourth issues.
In her=20
second issue, Lee contends that the trial court erred in allowing =
MD Lam=20
to elect fraud recovery when there was no jury finding on =
proximate=20
cause. In her third issue, Lee contends that the trial court =
erred=20
in Apredicating@=20
judgment against Lee on Aproducing=20
cause@ rather=20
than Anegligence=20
that was proximately caused.@ =20
The gist of these two complaints is that the trial court erred in =
its=20
submission of the fraud cause of action to the jury. =
However, in=20
order to complain on appeal about alleged error in a jury charge, =
an=20
appellant must first have preserved such argument in the trial =
court by=20
making, and receiving a ruling on, an objection to the =
charge. =20
See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 272, =
274. As=20
mentioned above, Lee has filed only a clerk=3Ds record=20
in support of her appeal, arguing that the face of the =
clerk=3Ds record=20
demonstrates error. However, the record before us does not=20
demonstrate that she objected to the charge language about which =
she now=20
complains on appeal. Cf. Guyot v. Guyot, 3 S.W.3d =
243, 245-46=20
(Tex. App.CFort=20
Worth 1999, no pet.) (holding appellant failed to preserve issue =
for=20
appeal because available record did not demonstrate alleged =
objection was=20
made). Accordingly, this argument is not preserved, and we =
overrule=20
Lee=3Ds second=20
and third issues.
We=20
affirm the trial court=3Ds=20
judgment.
/s/ =20
Adele Hedges
Chief=20
Justice
Panel=20
consists of Chief Justice Hedges and Justices Anderson and=20
Seymore.
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