Omitted Element or Defective Instruction?

The always-confusing universe of preserving error in the court's charge may have become a little more complicated after the Dallas Court of Appeals' decision in PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699 (Tex. App.--Dallas 2011, pet. filed).

PopCap complained on appeal that there was no evidence that MumboJumbo's damages were proximately caused by PopCap's conduct. MumboJumbo argued that PopCap waived any error because it did not object to the court's charge, which asked the jury to find the damages that "resulted from" PopCap's conduct.

The court of appeals held that PopCap's complaint was about an omitted element of MumboJumbo's claim (proximate cause) and that, therefore, no objection to the charge was necessary to preserve error. Instead, the court found that PopCap preserved its objection to a deemed finding in its motion to disregard jury findings.

An argument can be made that the question did not omit causation; it just submitted causation incorrectly because it required the jury to find only that the damages "resulted from" PopCap's conduct rather than that they were "proximately caused" by it. That would seem to make the error a defective instruction, which must be preserved with a proper objection. But in light of the PopCap opinion, no objection at the charge conference was necessary and the objection could be preserved post-trial.

(In the interest of full disclosure, I consulted with MumboJumbo for its motion for rehearing in the court of appeals. I was not involved at trial or during briefing and argument at the court of appeals.)

[2nd paragraph UPDATED to more accurately reflect the arguments on appeal]

-- Rich Phillips, Thompson & Knight

Comments

[Rich Phillips]

Bob,

This has been a thought-provoking discussion, and I appreciate you taking the time to think through these issues and comment on them here.

I think that where we differ is in the meaning of "omitted element." I view the "element" as causation, which was arguably submitted (and therefore not omitted) through the phrase "resulted from" in the question. If causation was defectively submitted (i.e. submitted without requiring foreseeability) without objection, then the only question in a sufficiency review would be whether there is evidence that the damages "resulted from" the conduct. Evidence of foreseeability (which is what the court of appeals focused on) would be irrelevant because the jury was not instructed that foreseeability was required to find causation.

If the element is proximate cause specifically, and not causation generally, then I think that there may be an argument that the error is an omitted element rather than a defective submission of causation.

Your point that the defect was the failure to tie the question to the instruction on proximate cause seems to support the view that error was waived. That defect could have been corrected if a proper objection had been raised. And because of that defect the jury measured the evidence against the "resulted from" standard instead of a foreseeability standard.

In any event, these issues certainly throw an interesting light on the challenges of preserving error in the charge.

Rich

[Bob]

A proximate cause definition including forseeability accompanied the "resulting from" question. The waived error was there being no specific link between the two. However, the presence of the proximate cause definition is significant, for, if the sufficiency of the evidence is to be judged against the charge as given (in light of the absence of an objection), the sufficiency of the evidence must be judged against both the question and the accompanying definition, because both were submitted without objection. If the proximate cause definition were to be ignored because the "resulting from" question didn't specifically refer to it, then the proximate cause element becomes an omitted element(on analogy to an improperly conditioned issue to which no objection is made) that has been deemed to support the judgment, but which has no legally sufficient evidence to support it. Bob

[Rich Phillips]

Bob,

I appreciate your thoughts on the issue. My point was that causation was submitted (albeit defectively) because the charge required the jury to find that the damages "resulted from" the conduct without requiring foreseeability. It appears to me that there is an argument that failure to object to the failure to require foreseeability waived the error. If the defect was wavied, then the evidence should be weighed against the standard in the charge (i.e. was there evidence that the damages "resulted from" the conduct?) rather than against the proximate-cause standard.

Rich

[Bob]

The essential error of the trial court was accepting a verdict with legally insufficient evidence. Proximate cause was either submitted (albeit erroneously because the proximate cause definition was not appropriately tied to the jury question) or was omitted. If it was submitted, it lacked legally sufficient evidence. If it was omitted, but deemed found, it lacked legally sufficient evidence. Thus, the reversible error of the trial court was not the wording of the question (which indeed was incorrect), but in accepting a verdict not supported by legally sufficient evidence, which was preserved.