Affirmed and Memorandum Opinion filed August 9, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00614-CV
MAXIM CRANE WORKS, L.P., Appellant
V.
BERKEL & COMPANY CONTRACTORS, INC., Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 75576-CV
MEMORANDUM OPINION
In this personal injury lawsuit, appellant Maxim Crane Works, L.P.
challenges in four issues the trial court’s judgment in favor of appellee Berkel &
Company Contractors, Inc. on Maxim’s claim for breach of an indemnification
clause in a rental agreement. Maxim contends that its indemnification claim is
viable under the Texas Insurance Code and that the trial court abused its discretion
in refusing to submit a breach of contract question to the jury. Because Maxim
failed to provide a complete reporter’s record, we cannot determine whether
Maxim preserved error on three of its issues or assess whether the trial court’s
refusal to submit a jury question, if erroneous, was harmful. We accordingly
affirm.
Background
Berkel rented a crane from Maxim to be used at a construction site. Berkel
was operating the crane when the boom collapsed. Tyler Lee, an employee of the
project manager, was injured and subsequently brought suit against Berkel,
Maxim, and others.1 Maxim filed a cross-claim against Berkel for breach of
contract, alleging that Berkel was required to indemnify Maxim. Under the crane
rental agreement, Berkel must indemnify Maxim in connection with personal
injury claims caused by Berkel’s negligence or intentional tort unless the claim is
brought by an employee of Berkel, in which case Berkel is required to indemnify
Maxim “from any and all” claims.
Maxim requested a jury question on its breach of contract claim. The trial
court denied the request.2 The jury found that Lee’s injuries were proximately
caused by Berkel and Maxim and allocated responsibility 90% to Berkel and 10%
to Maxim.
Discussion
In four issues, Maxim argues that its indemnification claim is viable under
the Texas Insurance Code and complains of the trial court’s refusal to submit its
breach of contract question to the jury. As an initial matter, we note that it was
1
Lee and his employer are not parties to this appeal.
2
Maxim asserts that the trial court concluded “Maxim’s demand for reimbursement of its
defense costs was a question of law to be decided by the trial court.” That information is not part
of the appellate record.
2
Maxim’s burden to furnish this court with a record that supports its allegations. See
Appleton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.—Houston [14th Dist.] 2002,
no pet.). For this appeal, Maxim has provided a partial appellate record.3
Generally, in an appeal with only a partial reporter’s record, the court of
appeals must presume that the omitted portions of the record are relevant and
support the trial court’s judgment. Mason v. Our Lady Star of Sea Catholic
Church, 154 S.W.3d 816, 819 (Tex. App.—Houston [14th Dist.] 2005, no pet.). An
exception applies when an appellant includes in its request for the reporter’s record
a statement of the issues to be presented on appeal. Id. (citing Tex. R. App. P.
34.6(c)(1)). This statement limits the issues to be presented on appeal and puts the
other parties on notice that the appellate court will presume the designated portions
of the record constitute the entire record for reviewing the stated issues. Id. This
allows the other parties an opportunity to request any additional portions of the
record they believe are relevant to the issues presented.4 Id.
The appellate record provided by Maxim does not include a statement of the
issues to be presented on appeal. Accordingly, in analyzing this case, we must
presume that that the omitted portions of the record are relevant and support the
trial court’s judgment. See id. at 819-20. Keeping these principles in mind, we first
address Maxim’s issues relating to the Texas Insurance Code.5
3
The clerk’s record is incomplete. Likewise, the reporter’s record consists only of the
subject rental agreement that was admitted at trial and the portion of the trial in which the trial
court read the jury charge.
4
The statement of the issues on appeal need not be included in the request for the
reporter’s record as long as the statement is filed in time for the other parties to designate any
additional, relevant portions of the record and to prepare their appellate briefs. Mason, 154
S.W.3d at 819 (citing Bennett v. Cochran, 96 S.W.3d 227, 228–30 (Tex. 2002) (per curiam)).
5
We discuss the issues out of order for organizational purposes.
3
I. Record Not Adequate to Show Preservation of Error
Texas Insurance Code Chapter 151 limits the scope of enforceable
indemnification clauses in construction contracts. See Tex. Ins. Code § 151.102.6
In its second through fourth issues, Maxim contends that (1) the indemnification
clause in the rental agreement is not void under Chapter 151; (2) Maxim is entitled
to indemnification from Berkel under Chapter 151 to the extent of Berkel’s
negligence; and (3) if Berkel is immune from liability under the Worker’s
Compensation Act, Maxim is still entitled to indemnification under Chapter 151.7
Maxim avers the trial court concluded that “Maxim’s demand for reimbursement
of its defense costs should not be couched in terms of breach of contract, but
instead was a question of law to be decided by the court pursuant to Chapter 151.”8
To preserve error on a question of law, the appellant must raise the issue
through (1) a motion for directed verdict; (2) a motion for judgment
notwithstanding the verdict; (3) an objection to the submission of the question to
the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a
motion for new trial. United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914,
916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see also Sempra Energy
Trading, LLC v. Holmes, No. 14-13-00206-CV, 2014 WL 3698433, at *8 (Tex.
6
Under section 151.102, as a general rule:
[A] provision in a construction contract . . . is void and unenforceable as against
public policy to the extent that it requires an indemnitor to indemnify, hold
harmless, or defend a party . . . against a claim caused by the negligence or fault,
the breach or violation of a statute, ordinance, governmental regulation, standard,
or rule, or the breach of contract of the indemnitee . . . .
Tex. Ins. Code § 151.102.
7
Berkel contends that because it maintained worker’s compensation insurance, it is
immune from liability from Lee’s claims, even though Lee was not Berkel’s employee. We do
not address the merits of this claim, which is not relevant to the disposition of this appeal.
8
As discussed, this information is not in the appellate record.
4
App.—Houston [14th Dist.] July 24, 2014, no pet.) (mem. op.) (holding appellant
failed to preserve error when it did not raise complaints in one of the ways listed
above or during the charge conference).9 Maxim has not demonstrated that it raised
its complaints below in one of the prescribed ways to preserve error. Based on the
limited appellate record provided by Maxim, we presume that Maxim did not
preserve error as to its issues regarding the applicability of Chapter 151.10 See
Mason, 154 S.W.3d at 819-20. We overrule Maxim’s issues two through four.
II. Record Not Adequate to Assess Harm
Maxim complains in his first issue of the trial court’s refusal to submit
Maxim’s proposed breach of contract question to the jury. Texas Rule of Civil
Procedure 278 requires a trial court to submit questions, instructions and
definitions raised by the written pleadings and the evidence. Tex. R. Civ. P. 278;
4901 Main, Inc. v. TAS Auto., Inc., 187 S.W.3d 627, 630 (Tex. App.—Houston
[14th Dist.] 2006, no pet.). We review a trial court’s decision to submit or refuse a
particular instruction under an abuse of discretion standard of review. TAS Auto.,
Inc., 187 S.W.3d at 630. Even if a trial court abuses its discretion when it refuses to
submit an instruction to the jury, we do not reverse in the absence of harm. Id. To
determine harm, we must consider the entire record, including the parties’
pleadings, the evidence, and the charge. TAS Auto., Inc., 187 S.W.3d at 631;
Mason, 154 S.W.3d at 820.
Maxim argues, without record support, that “evidence of Berkel’s breach of
[contract] was submitted by all parties during the trial of the case via documentary
9
Maxim did not provide a record of the charge conference as part of this appeal.
10
Maxim argues in its reply brief that the trial court implicitly determined that Maxim
was not entitled to be indemnified under Chapter 151 as a matter of law. But Maxim has not
provided a sufficient record to establish that this issue was presented to the trial court through
any of the required methods to preserve error.
5
evidence, live testimony, and deposition testimony, and the [rental agreement]
itself was entered into evidence.”11 However, to evaluate Maxim’s claim, we are
required to review the entire record. See Mason, 154 S.W.3d at 821. Because
Maxim failed to provide a complete record of the evidence presented to the jury,
we are unable to address Maxim’s claim that it likely would have prevailed but for
the harm caused by the trial court’s failure to submit a breach of contract question.
See id. Moreover, as discussed, we must presume the omitted portions of the
record are relevant and support the trial court’s judgment. See id. We overrule
Maxim’s first issue.
We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Christopher, and Jamison.
11
The existence of the rental agreement, standing alone, is not evidence of breach. See
Warren v. BP Prods. N. Am. Inc., No. 14-13-00564-CV, 2014 WL 4262176, at *5 (Tex. App.—
Houston [14th Dist.] Aug. 28, 2014, no pet.) (mem. op.) (“Even if we assume the Rule 11 letter
agreement was sufficient to support the existence of an agreement, BP points to no evidence of
breach.”). In its reply brief, Maxim argues that the trial court did not refuse to submit the
requested jury question based on lack of evidence of breach. Instead, according to Maxim, the
trial court concluded that whether Maxim was entitled to indemnification was a question of law.
We have no way to evaluate this contention without a record of what transpired during the
charge conference. Moreover, even presuming error, we are still required to review the record for
evidence of breach of contract to evaluate harm. See Mason, 154 S.W.3d at 821 (“We also refuse
to abandon our responsibility to look to the record for error so that we can independently and
objectively assess both the error and its harm.”). Presuming that Berkel was required to
indemnify Maxim under the rental agreement—a question of law—Maxim nonetheless was
required to present evidence that Berkel had refused to indemnify Maxim. We cannot determine
whether the jury heard such evidence without a complete record of the trial.
6