dissenting.
I respectfully dissent. While I agree with this court’s policy concerning broad issue submission, I disagree that the policy should be advanced in this case.
Island sought Republic’s assistance in providing financing to prospective purchasers of Island’s condominiums. One of the requirements (Paragraph 17) of their agreement was that loan applications be submitted to Republic thirty days prior to the termination date. Island did not comply with this requirement. Republic refused to fund the loans. Island then sued Republic for breach of contract.
At trial, both sides requested various issues and instructions on both performance of the commitment letter’s conditions and waiver. The trial court, however, refused to submit the requested issues and instructions on waiver and only submitted one issue on liability which read:
Do you find from a preponderance of the evidence that plaintiffs performed their obligations under the commitment letter in question?
Answer: We do.
The majority states that “when the totality of the trial proceedings are considered it is apparent that waiver of Paragraph 17 of the letter of commitment was considered by the jury and found adversely to Republic.”
I disagree for the following reasons: (1) a trial court’s failure to submit instructions with broad issues that “subsume” mutually exclusive independent grounds of recovery or multiple causes of action is harmful *561error;1 (2) the majority’s position is not supported either by the cases cited promoting broad issue submission or by Rule 277;2 and (3) the majority’s approach disregards the requirements of Rule 279 dealing with issue submission.
(1) Broad Issue Instructions and Harmful Error
The question presented on appeal is whether the issue submitted to the jury includes Island’s ground of recovery alleging that Republic waived the condition that the loan applications be received at least thirty days prior to the termination date. Applying the evidence introduced at trial to contract law, a verdict in Island’s favor can only be based on a theory of waiver. The majority concludes that the submitted “broad” issue includes an issue on waiver.3 The trial court did not, however, submit an accompanying instruction on waiver. Where multiple grounds of recovery are included in one broad issue, the trial court should give the jury appropriate instructions. Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1975). Where, as here, the broad issue contains independent grounds of recovery that are mutually exclusive or otherwise conflicting, the trial court must submit an instruction. Otherwise, the verdict can be based upon a jury finding to an erroneous legal theory.
The majority holds that a trial court’s failure to give an instruction to a “broad” issue is not reversible error per se, and further, that Republic, the party whose liability is premised on the omitted ground of recovery, has failed to “demonstrate *562harm.” The harm in this case is obvious. The submitted issue does not ask about waiver and does not contain an accompanying instruction or definition on waiver. Despite the omission, this court affirms a verdict against Republic.4
In reviewing whether the trial court’s failure to give an instruction or issue is “harmful error,” this court is guided by Rule 503 which states that a judgment shall not be reversed unless the error “was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” The determination of whether an improper judgment probably resulted is based on the record as a whole. Lumbermen’s Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367, 370 (1954).
This court has frequently discussed “harmful error” in the context of the jury charge. In 1973, this court amended Rule 277 in an effort to give trial judges greater latitude in submission of the jury charge. Despite the greater discretion given to trial judges, this court has repeatedly held that errors in the jury charge require reversal as harmful error. In Gulf Coast State Bank v. Emenhiser, 562 S.W.2d 449 (Tex.1978) this court held that the instructions given to the jury constituted a “misstatement of law.” In reversing, we stated that “[a] trial court’s charge which does not instruct the jury as to the correct law applicable to the facts is improper.... The erroneous charge constituted error which was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Id. at 453-54. Thus, the inclusion of misstatements of law in the instructions was harmful error. The rationale is equally applicable that the exclusion of instructions on the applicable law, when they are required, results in harmful error.
Similarly, in Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87 (Tex.1973) this court held that an issue on actual damages was overly broad when it contained an inappropriate instruction that allowed recovery for “loss of monetary reward.” A proper instruction would have included net profits or another legal measure of damages. Thus, this improper submission “was fatally defective, because it simply failed to guide the jury on any proper legal measure of damages.” Id. at 90. This court reversed the judgment because the accompanying instruction failed to limit the jury’s considerations on the “broad” issue. When the jury’s answer to a broad issue can include inapplicable types of damages or inapplicable grounds of recovery, the issue requires an appropriate accompanying instruction. The “broad” issue submitted in this case does not have such an accompanying instruction.
In Scott v. Atchison, Topeka & Santa Fe Ry., 572 S.W.2d 273 (Tex.1978) the adversely affected party complained of the submission of a broad issue which allowed the jury to find negligence on facts that were neither pleaded nor proved. In reversing, we stated:
In view of the wide variance between the pleadings and unplead facts and circumstances from which the jury could have inferred that the railroad was negligent, such error was reasonably calculated to and probably did cause the rendition of an improper judgment.
Id. at 277. Other Texas Supreme Court cases have reversed the lower court judgments for errors in the charge. Washington v. Reliable Life Ins. Co., 581 S.W.2d 153 (Tex.1979) (trial court submitted irrelevent issue); Dutton v. Southern Pacific Transportation, 576 S.W.2d 782 (Tex.1978) (trial court submitted com*563mon law definition in a F.E.L.A. case); Southwestern Bell Tel. Co. v. Thomas, 554 S.W.2d 672 (Tex.1977) (trial court failed to submit requested issues on contributory-negligence); Missouri Pacific R.R. Co. v. Cross, 501 S.W.2d 868 (Tex.1973) (errors in submission of issues and objections to the charge). These cases all stand for the proposition that when a trial judge submits an improper instruction or issue, the error is harmful and the judgment will be reversed. There is no sound basis for distinguishing between the submission of an improper instruction and the failure to submit an instruction when one is necessary.
The majority observes that “if the absence of an instruction on waiver was detrimental to either party, it was Island.” The majority fails to state on what basis it makes this determination. If the issue is properly construed as only addressing performance, then the majority’s statement is accurate. However, when the issue is construed as containing questions on both performance and waiver in one “broad” issue; the submitted issue, without instruction, gives Island “two bites at the apple.” The jury could either find that Island performed its obligations, or, as under the majority’s analysis, the jury may “impliedly” find that Republic waived its rights to enforce the obligations.
The majority states that “the controlling issue, the only issue which would authorize a recovery by Island, was whether Island had performed all of the things required by Republic as conditions precedent so as to entitle Island to enforce the commitment.” The majority, then, emphasizes the fact that performance of conditions precedent was the question before the jury, not waiver. Thus, the submitted issue was not “detrimental” to Island, but allowed Island to recover on a ground of recovery that was not addressed in the charge. The issue was detrimental to Republic both because it was held liable on an omitted ground of recovery and because it was not required to request that Island’s omitted theory of recovery be submitted.
This case will have a far reaching impact. Regardless of the result reached here, the majority should not place its stamp of approval allowing a trial court to submit broad, even innocuous, issues without any limiting instructions or definitions. The majority opinion makes it virtually impossible for appellate courts to review the trial court’s charge. The prevailing party need only argue that the issue submitted to the jury was a “broad” issue, thereby encompassing any and all theories of recovery. All omitted grounds of recovery will be “subsumed” in “broad” issues. Without instructions, the submission of broad issues leads to verdicts unsupported by legitimate legal theories. Broad issues will virtually become general charge submissions.
(2) Rule 277 and Issue Submission
In reaching its conclusion that failure to submit an instruction is not harmful error, the majority relies on the portion of Rule 277 which allows the combined submission of elements or issues. The majority, however, disregards another portion of Rule 277, which states:
In submitting the case, the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict ...
Tex.R.Civ.P. 277 (emphasis added). See Pope & Lowerre, Revised Rule 277—A Better Special Verdict System for Texas, 27 Sw.L.J. 577, 587 (1973). In holding that the trial court’s failure to instruct was not reversible error, the majority ignores the mandatory language of Rule 277 — that the trial court shall submit necessary instructions. In this case, the issue submitted, in the absence of an instruction, did not allow the jury to arrive at a proper verdict. See Line Enterprises v. Hooks & Matteson, 659 S.W.2d 113, 117 (Tex.App.—Amarillo 1983, no writ). In light of the affirmative language of Rule 277, the trial court’s failure to submit an instruction resulted in reversible error.
The majority further relies upon cases dealing with Rule 277 and the submission of broad issues. Although these cases pro*564mote the submission of broad issues, none of them utilize the inherently detrimental “subsumed issue” analysis which is presently being employed by the majority. Further, none of the cases permit recovery upon an omitted independent ground of recovery in contravention of the requisites of Rule 279.
(3) Rule 279 and Issue Submission
In framing the issue of this case, the majority states that the “question is whether it is reversible error for a trial judge to submit a single broad issue encompassing more than one independent ground of recovery?” The majority, then, holds that questions both on performance and on waiver are included in the same issue. Yet, the word “waiver” does not appear in the issue. Under Rule 279:
Upon appeal all independent grounds of recovery or defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived ...
Waiver is an independent ground of recovery. Middle States Petroleum Cory. v. Messenger, 368 S.W.2d 645, 654 (Tex.Civ.App.—Dallas 1963, writ ref d n.r.e.). See Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726 (Tex.1981); Washington v. Reliable Life Ins., 581 S.W.2d 153, 157 (Tex. 1979). Waiver was neither conclusively established nor was an issue submitted on waiver. The waiver ground of recovery was waived. Thus, Island, the party relying on waiver, should not be allowed to recover on the submitted issue.
The majority’s approach in this case disregards well established rules relating to the party who has the burden of requesting the submission of issues. Island relies on the waiver theory for its recovery. Under Rule 279, the party relying on waiver has the burden of proof upon the issue. Washington, 581 S.W.2d 157. See Texas Prudential Ins. v. Dillard, 158 Tex. 15, 307 S.W.2d 242, 249 (1957). Island’s burden is the same whether the issues are separately or broadly submitted. Island requested issues and instructions on waiver, it knew that it had the burden to have such issues submitted. The trial judge refused to submit the requested issues and instructions on either of these theories. Island did not complain of this failure in the court of appeals or in this court. Island waived any complaint of improper refusal to submit requested issues or instructions. State Farm Mut. Auto Ins. v. Cowley, 468 S.W.2d 353, 354 (Tex.1971); Tex.R.Civ.P. 476. Since Island did not preserve error on the trial court’s failure to submit the issues on waiver and estoppel, Island can only recover on those grounds if they are established as a matter of law. Tex.R.Civ.P. 279; Washington, 581 S.W.2d at 157. An issues is conclusively established when the evidence is such that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. Triton Oil & Gas Corp. v. Marine Contractors & Supp., Inc., 644 S.W.2d 443, 446 (Tex.1982). See Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 977 (1951). Island did not conclusively establish waiver; Island failed to meet its burden.5
*565By its holding, the majority implicitly requires that Republic request and object to the submission of its adversary’s omitted theories of recovery. In light of Rule 279, we cannot shift the burden upon Republic to request Island’s theory of recovery. More importantly, we cannot say that Republic was not harmed when it was held liable on such omitted ground of recovery.
For the above reasons, I would affirm the judgment of the court of appeals.
.The liability issue submitted to the jury only addresses performance. The jury was asked: Did Island perform its obligations under the commitment letter? The majority essentially argues that "we do" means "we do not" find Island performed, but it does not matter because Republic waived its right to require performance. A literal reading of the issue and answer, however, shows that the jury merely answered "we do” find that Island performed its obligations. Because the jury said "Yes, Island performed,” it would not address whether Island is excused from performance under a theory of waiver. The majority does not explain how the jury knowingly found waiver in an issue asking about performance.
Contract law governs the parties’ rights and obligations. The court of appeals held, as a matter of law, that Paragraph 17 was a condition precedent (an "obligation") under the commitment letter. Island did not appeal this holding. The majority implicitly holds that failure to perform the condition precedent was undisputed. Apparently, the majority is holding that nonperformance of Paragraph 17 was established as a matter of law. Utilizing these two legal conclusions (Paragraph 17 is a condition precedent and Island failed to perform Paragraph 17), the majority reasons Island could not have performed its obligations under the letter. Thus, after precluding as a matter of law any question on performance, the court then implies a finding of waiver of the condition precedent.
If failure to perform was conclusively established and the trial court and jury treated Paragraph 17 as a condition, then the trial court should not have submitted an issue asking if Island performed its obligations. Only disputed controlling issues are submitted to the jury. TEX.R.CIV.P. 279. The majority does not explain why it was proper for the trial court to submit only one undisputed question on liability-
The majority’s assumption on the jury determination is not supported by the events at trial. Several issues were requested in regard to whether Island made certain improvements on the premises as required under Paragraph 15 (not Paragraph 17) of the commitment letter. Such requests by the parties indicate a disputed issue on performance in connection with other obligations, or paragraphs, under the letter. When the jury answered the issue on performance, a question arises regarding whether the jury found Island performed Paragraph 15 of the commitment letter or whether the jury also found Republic waived its right to enforce Paragraph 15 and various other paragraphs of the commitment letter. There is no way to determine what the jury may or may not have found.
. All references to “Rules” are to Tex.R.Civ.P. (1984).
. The issue in this case is not a broad issue. The issue asked about "obligations under the commitment letter.” By modifying "obligations” with "under the commitment letter,” the issue limits the jury’s consideration to the literal requirements of the letter. This issue does not allow the jury to consider other grounds of recovery nowhere mentioned in the charge.
To hold that the submitted issue includes waiver, the majority must read “obligations under the commitment letter" as "obligations under the commitment letter that Republic did not waive.” The merits of broad issue submissions aside, this court should not rewrite an issue so as to include an independent ground of recovery never mentioned in the charge.
. On review, the court of appeals held that there was no evidence of waiver. The majority presumes, in the absence of an issue or instruction, that the jurors knew they had to find that Republic relinquished its right to insist on performance. The majority fails to cite any authority allowing this court to make an implied “finding" on an independent ground of recovery that is not even mentioned in the charge. This court cannot "find” waiver. We have jurisdiction over questions of law only and no power to decide facts. Stanfield v. O'Boyle, 462 S.W.2d 270, 272-73 (Tex.1971); TEX. CONST, art. 5 § 3. This court cannot hold that a judgment based on a jury finding on a ground of recovery upon which no inquiry was made is harmless error.
. Pat Green received the loan applications and began processing them August 25, 1981. Green testified she did not know of the provision in the loan commitment letter which required Island to file the applications by August 15. She also stated that she was obligated under federal law to accept the applications. Hal Huddleston, an executive of Republic, not Pat Green, had the authority to make a final decision whether to fund the commitment. There is no evidence that Green had actual authority to waive the condition, nor was there any evidence Ryan believed Green had such authority. Island admits that there is a question whether the scope of Green’s agency included the authority to waive performance of the condition. There is "room for ordinary minds to differ” whether Green had authority to waive the condition that the applications be submitted by August 15.
Island also contends Republic is estopped to deny the condition was waived. The primary element of estoppel is a false representation or concealment of material facts. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Island does not contend Republic made any false representation or intentionally concealed facts. Further, the evidence does not establish such conduct.
Neither waiver nor estoppel was conclusively established. In addition, Island failed to preserve its error to challenge the trial court’s re*565fusal to submit an issue on waiver or estoppel. Therefore, because it is undisputed that Island did not file the applications by August 15, Republic was relieved of its obligations to perform under the loan commitment.