dissenting.
I respectfully dissent. At the outset, I wish to note that I am not writing this dissent to discourage or impede broad issue submission. I write only to encourage wise and efficient broad issue practice.
I agree with the majority’s advocating a simpler, fairer, more efficient jury charge system through broad issue submission. However, I do not agree that the charge in this case broadly submitted both waiver and performance. The issue in this case reads:
Do you find from a preponderance of the evidence that plaintiffs performed all their obligations under the commitment letter in question?
The jury answered “We do.”
In reviewing this issue, the majority characterizes the question before this court as: “whether it is reversible error for the trial court to submit a single broad issue encompassing more than one independent ground of recovery.” While I believe the answer to this question is “no,” the answer to this general question does not resolve this case. The only question which answered will resolve this case is whether the charge submitted to this jury encompassed both performance and its independent counterpart, waiver. I will show why it does not. I will then discuss the myriad of procedural traps and legal tangles under the majority’s approach which will undermine broad issue practice.
In a jury charge system, it is fundamental that a judgment be based on the verdict. Tex.R.Civ.P. 301; First Nat. Bank in Dallas v. Zimmerman, 442 S.W.2d 674 (Tex.1969). The jury’s verdict is composed of findings on independent grounds of recovery or defense placed before it. Consequently, to support judgment, an independent ground of recovery or defense not conclusively proven must be included in the charge. Orkin Exterminating Co. v. Gulf Coast Rice Mills, 362 S.W.2d 159 (Tex.Civ.App.—Houston 1962, writ ref’d n.r.e.). A broad issue charge can place a ground of recovery before the jury by mentioning the ground in issues or by including instructions which refer the grounds to an issue. Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974); O. Walker, W. Corcoran & M. Lipscombe, Survey of Special Issue Submission in Texas Since Amended Rule 277, 7 St. Mary’s L.J. 345, 363-65 (1975).
The charge in this case does not place waiver before the jury. Waiver is not subsumed in the issue asking if Island performed its obligations under the commitment letter because waiver and performance are independent, mutually exclusive legal theories. Middle States Petroleum Corp. v. Messenger, 368 S.W.2d 645, 654 (Tex.Civ.App.—Dallas 1963, writ ref’d n.r. e.). While waiver and performance may be submitted in the same issue,1 the issue submitted to this jury did not mention waiver; therefore, the issue itself does not support a judgment for Island.
A broad issue, silent on a ground of recovery, may envelop that ground through instructions which refer the ground to the issue. Walker, supra at 363-65; Pope, A *558New Start on the Special Verdict, 37 Tex. B.J. 335 (1974). The purpose of definitions and explanatory instructions is to aid the jury to render a verdict. Tex.R.Civ.P. 277. When certain grounds of recovery or defense are not specifically mentioned in a broad issue, the jury needs instructions to guide and limit its consideration to the pleaded and tried grounds of recovery and defense. Scott v. Atchison, Topeka and Santa Fe Railway Co., 572 S.W.2d 273 (Tex.1978); Pope, supra at 335-37. In a broad issue practice, instructions rather than separate issues can place the specific grounds of recovery or defense before the jury. Pope, supra at 335-37. See also Mobil, 572 S.W.2d at 255-56. In this way, an instruction on waiver would have provided support for the judgment. The trial court, however, submitted no instruction on waiver; therefore, waiver was not before the jury.
This charge simply does not submit waiver and performance broadly, but only submits performance specifically. Waiver is not mentioned in the issue or in any instruction. The issue asks about performance of “obligations under the commitment letter in question.” It does not ask or instruct about waiver. It does not even ask or instruct, as the majority states, “whether Island had performed all of the things required by Republic” (indicating those things not required by Republic were waived). The word “performed” is modified in the issue by “obligations under the commitment letter in question,” not by “all of the things required by Republic” as the majority states. Even this rewording would not encompass waiver without instructions.
Because the charge is silent on waiver, the majority truly holds that it is acceptable to imply a jury answer to an independent ground of recovery or defense never mentioned in the charge. No broad issue case or comment so holds. Nevertheless, the majority gratiously quotes out of context from several cases espousing broad issue submission. For example, the majority quotes from Burk Royalty Co. v. Walls, 616 S.W.2d 911, 914 (Tex.1981), to support its holding. Burk Royalty does encourage broad issue submission. In fact, Burk Royalty states that broad issues may “include a combination of elements or issues.” 616 S.W.2d at 924. For a ground of recovery or defense to support a judgment, however, the charge must expressly mention the ground either in issues or in instructions. Neither Burk Royalty nor any of the other cases cited hold that independent grounds of recovery not expressed in the charge can support judgment.
However, the majority holds that “when the totality of the trial proceedings are considered it is apparent that waiver of paragraph 17 of the commitment letter was considered by the jury and found adversely to Republic.” The majority believes that because waiver was pleaded, tried, and argued, the jury apparently considered it in its deliberations. The majority ignores the crucial last step in establishing a ground of recovery: placing the ground before the jury in the charge. Harkey v. Texas Employer’s Insurance Agency, 146 Tex. 504, 208 S.W.2d 919 (1948).
This points out the true problem in this case. The charge submitted did not expressly mention waiver in an issue or in an instruction. The jury was instructed, as in all cases, “not to speculate on matters not shown by the evidence admitted before you and about which you are not asked any questions.” This instruction closely parallels Rule 226a’s model instruction that the jury “consider only the evidence introduced ... together with the law as given [it] by the court.” The law on waiver was never given the jury by the court. We cannot presume that the jury violated their instructions. Rather, it is apparent that the jury did not consider waiver because waiver was not mentioned in the charge. Nevertheless, the majority upholds the judgment based on waiver despite the inescapable conclusion that if the jurors followed their oath as jurors, they did not consider waiver.
Notwithstanding that waiver was not mentioned in the charge, the majority holds *559that failure to submit an instruction on waiver was harmless error, precluding Republic’s complaint on appeal. This is incorrect. Republic does not complain of lack of an instruction on waiver, but complains that the verdict does not support the judgment because Island undisputedly did not perform as required by the commitment letter, and waiver was never submitted. Republic is harmed by the trial court’s erroneously rendering judgment on the verdict, not just by its failure to instruct on Island’s independent ground of recovery.
The majority’s harmless error analysis leaves the party defending against a broad issue (opponent) remediless on appeal. The party relying on a broad issue (proponent) may submit that issue, silent on certain tried independent grounds of recovery or defense. The opponent would then be in real trouble. Under the majority’s approach, the trial court must render and the court of appeals must uphold judgment on the omitted grounds, even if it finds no evidence to support affirmative answers to the submitted grounds. This precludes no evidence or factual insufficiency review of grounds submitted to the jury. Furthermore, the majority would then hold that failure to include in the charge other tried grounds was harmless as to the grounds’ opponent, precluding his complaint that the judgment is not supported by affirmative findings on evidenced grounds of recovery or defense.
This analysis also impliedly and incorrectly places the burden to request such an instruction on the opponent of an issue, for he is better off requesting the omitted ground and hoping for a negative finding than facing certain implication of an affirmative finding on appeal. Even if requested, the judge’s failure to submit will be harmless. Never before now has one party been required to request submission of his opponent’s independent ground of recovery or defense.
The majority's harmless error holding also gives the issue’s proponent an incentive not to request instructions. The issue’s proponent, to avoid reversal on defective instructions or unevidenced mentioned grounds, will not request them, knowing the majority will uphold the verdict if any evidence supports any tried but omitted ground.
In addition to confusing trial practice, the majority’s implying that the jury considered a ground not expressed in the charge also radically alters appellate review. Following the majority’s lead, the appellate courts in reviewing charges cannot render for no evidence or remand for factual insufficiency on affirmative answers to submitted grounds. Rather, they will have to speculate on what omitted grounds of recovery the jury may have considered and imply affirmative answers to those grounds. This speculation into the jurors mental processes violates the tantamount rule of appellate review that the court shall not substitute its judgment for the jury’s. This also forces the appellate court to violate an instruction always given jurors not to speculate on matters not mentioned in the charge. See Tex.R.Civ.P. 226a.
To avoid all of these problems, I propose a simple rule: broad issues encompass only those grounds of recovery actually written and appearing on the face of an issue or an instruction. The converse is that unexpressed independent grounds of recovery or defense cannot support judgment. Under this rule, the parties will know precisely how to place grounds of recovery and defense before the jury: expressly mention them in issues or instructions. If the party relying on a ground of recovery or defense fails to request an issue or instruction specifically mentioning the ground, he waives it. The jury also will know clearly, not just apparently, from reading the charge what grounds of recovery it may consider in reaching its verdict. Furthermore, the trial court and the appellate court will know clearly from reading the charge what grounds of recovery the jury considered, and review the case accordingly, without speculation.
Under this rule, the verdict in this case does not support judgment for Island. *560While I share the appellate courts’ reluctance to reverse cases on technical charge problems, I do not consider the trial court’s error merely technical. The judgment is erroneous because it is based on a ground of recovery not conclusively proven and never presented to the jury. This error contravenes the most basic principles of the law of judgments. Akin v. Dahl, 661 S.W.2d 911, 913 (Tex.1983); Glen Falls Ins. Co. v. Peters, 386 S.W.2d 529, 531-32 (Tex.1965). See also 3 McDonald, Texas Civil Practice in District and County Courts § 12.36.2 (1983); 1 Freeman, Freeman on Judgments §§ 9, 10 (1925).
Normally, when a judgment is erroneously rendered, we reverse and render. However, out of fairness to both parties, I would remand this cause to the trial court in the interest of justice.
Rule 505 entitles this court to “reverse the judgment and remand the cause to the trial court, if it appears that the justice of the cause demands another trial.” Tex.R. Civ.P. 505. Island did not raise on appeal the trial court’s failure to submit an issue or instruction on waiver. Thus, we could simply render against Island because the court of appeals found no evidence of performance. However, it seems unfair to render against Island because the jury could have believed Republic waived Island’s contract obligations. Further, Island may not have complained of lack of issues or instructions on appeal because it felt the submitted issue did include waiver. While I disagree, this highlights the true problem: the trial court tried but failed to submit a broad issue which included waiver. when Island requested issues and instructions on waiver. Under these circumstances, rendering against Island would be unjust. This court has held that remand in the interest of justice is proper in this situation. Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846, 49 (1954). Rendering against Republic would also be unjust because the charge’s silence on waiver, and the absence of evidence on performance, prevents the verdict from supporting judgment for Island.
Considering all of the circumstances surrounding this charge, and the novelty of the majority’s holding, we can fairly dispose of this case only by remanding to the trial court to proceed according to this opinion.
McGEE and CAMPBELL, JJ., join in this dissent.. I suggest submitting a broad issue on waiver and performance as follows:
Do you And from a preponderance of the evidence that [plaintiff] performed all of the obligations under the commitment letter which [defendant] did not waive?
You are instructed that waiver is defined as intentionally giving up a known right.
You are instructed that performed means carrying out obligations as required by the contract.