INTEREST OF v. << (2025)

Motion for en banc reconsideration denied.

OPINION CONCURRING IN DENIAL OF EN BANC RECONSIDERATION

CONCURRENCE and Opinion Filed July 18, 2025

I agree that appellants' motion for en banc reconsideration is properly denied, but write separately because I respectfully disagree with the assertion in the May 2, 2025 panel opinion that adherence to a pattern jury charge controls whether the trial court abused its discretion in submitting a challenged instruction to the jury.

Appellants argue on appeal that the trial court erred in submitting the affirmative defense of repudiation to the jury “because two of the required elements, lack of excuse for the nonperformance and damages cause[d] by the nonperformance, were not supported by any evidence and were not included in the instructions to the jury.” Appellants cite Madhavan A. Pisharodi, M.D., P.A. v. United Biologics, L.L.C., No. 04-18-00324-CV, 2020 WL 1443561, at *4 (Tex. App.—San Antonio Mar. 25, 2020, pet. denied), to support the proposition that the elements of lack of excuse for the nonperformance and damage are required. In its opinion, the panel concludes that this complaint is not preserved for appellate review. See Tex. R. Civ. P. 278. I agree.

The panel then observes, however, that the trial court's instruction on repudiation “tracked the pertinent pattern jury charge” and states that “[g]iven this, we cannot conclude the trial court abused its discretion,” citing Hagan v. Pennington, No. 05-18-00010-CV, 2019 WL 2521719, at *16 (Tex. App.—Dallas June 19, 2019, no pet.) (mem. op.). Citation to Hagan includes the panel's parenthetical explanation: “noting that the failure to include requested instruction was not abuse of discretion when trial court followed pattern jury charge.” The observation that the trial court “tracked the pertinent pattern jury charge” does not support the conclusion that the trial court did not abuse its discretion. Moreover, the panel's parenthetical explanation of Hagan unnecessarily compounds confusion by using the word “when,” a word that may have a temporal (coincidental) or causative sense.¹

Although pattern jury charges are often a helpful guide to trial courts and litigants alike, this court has repeatedly noted that they are not binding. See, e.g., Foreman v. State, No. 05-23-00838-CR, 2025 WL 1372870, at *3 (Tex. App.—Dallas May 12, 2025, no pet. h.) (mem. op.) (“[P]attern jury charges are advisory and not binding on the courts.”); Cochran v. State, 692 S.W.3d 891, 896 (Tex. App.—Dallas 2024, no pet.) (“Pattern jury charges are advisory and not binding on the courts.”); Keetch v. Kroger Co., 845 S.W.2d 276, 281 (Tex. App.—Dallas 1990) (“In approving the trial court's submission of this case, we note that Keetch's argument that the charge contained error because it did not conform to the Texas Pattern Jury Charges is without merit. ․ The Texas Pattern Jury Charges are nothing more than a guide to assist the trial courts in drafting their charges; they are not binding on the courts.”), aff'd, 845 S.W.2d 262 (Tex. 1992) (citing Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 n.7 (Tex. 1981); Tex. Employers' Ins. Ass'n v. Lara, 711 S.W.2d 224, 225 (Tex. 1986)).

Accordingly, it is neither helpful nor correct to imply that a trial court does not abuse its discretion when (meaning “if”) it follows a pattern jury charge. Nor was such an implication helpful or correct in Hagan. In that case, we concluded that “we cannot say the trial court abused its discretion by not including Hagan's requested instruction” while observing that “[t]he submitted instruction and question ․ tracked language from the Texas Pattern Jury Charges.” Hagan, 2019 WL 2521719, at *16. Yet we continued our analysis to address harm, concluding that, “[e]ven assuming the trial court erred,” the error did not probably cause the rendition of an improper judgment. Id. (citing Tex. R. App. P. 44.1(a)(1)). Thus, our holding did not rest exclusively on the implied authority of the pattern jury charge.

Hagan cites Wal-Mart Stores Tex., LLC v. Bishop for the proposition that “failure to include [a] requested instruction [is] not an abuse of discretion when [the] trial court followed [the] Texas Pattern Jury Charge.” Id. (citing 553 S.W.3d 648, 675 (Tex. App.—Dallas 2018, pet. granted, judgm't aff'd as modified w.r.m.)). In Bishop, we rejected the appellant's complaint that the definitions of “negligence” and “ordinary care” the trial court submitted to the jury were confusing as to the meaning of the liability question or the basis of the appellant's alleged negligence. Bishop, 553 S.W.3d at 674. In reaching this holding, we noted that the trial court defined “negligence” and “ordinary care” in accordance with the pertinent pattern jury charge. We also held that the appellant waived the error by proposing wording that was substantially similar to the submitted charge. Id. at 675. Thus, again, we did not rely exclusively on the implied authority of the pattern jury charge.

Neither bench nor bar are assisted by this court's repeated incorrect implication that pattern jury charges are authoritative. They are not. Consequently, I concur.

FOOTNOTES

1.   Merriam-Webster provides multiple definitions for “when,” including “in the event that” (listing “if” as a synonym) and “at or during the time that” (listing “while” as a synonym). MERRIAM-WEBSTER DICTIONARY, when, https://www.merriam-webster.com/dictionary/when (last visited July 3, 2023). I cite the Merriam-Webster Online Dictionary not as the authoritative definition of any word or term but to inform a generally understood definition of the term or word. City of Fort Worth v. Pridgen, 653 S.W.3d 176, 183–84 (Tex. 2022).