Anson Distributing, LLC had a business relationship with Starco Impex, Inc. and USA Millennium, LP, in which Anson would import goods and sell them to Starco and Millennium. Disputes arose among the parties regarding how much money, if any, Starco and Millennium owed Anson for delivered goods and services. Anson sued Starco and Millennium for breach of contract while Starco and Millennium sued Anson for fraud, among other claims. These claims were submitted to a jury, which found that Starco and Millennium breached their contracts with Anson, but only Millennium owed Anson damages. The trial court rendered a judgment that Anson recover $1,146,072.17 from Millennium, plus prejudgment interest, and that Anson take-nothing from Starco, consistent with the jury’s verdict. Anson and Millennium appealed. Anson contends in its appeal that the trial court erred by (1) denying Anson a directed verdict on a joint enterprise theory of recovery against Starco; (2) granting Starco a directed verdict on the joint enterprise issue and refusing to submit a jury question on joint enterprise; and (3) refusing to submit a jury question on the issue of assignment, i.e., whether Starco assigned its contractual obligations to Millennium. Millennium contends in its appeal that (1) Anson judicially disclaimed any contract with Millennium; and (2) the evidence is legally and factually insufficient to support all the elements and damages for Anson’s claim. We overrule Anson’s issues and Millennium’s first and second issues in part, but we sustain Millennium’s second issue in part because the evidence is factually insufficient to support the amount of damages awarded. Accordingly, we affirm the part of the trial court’s judgment ordering that Anson take nothing against Starco, reverse the part of the trial court’s judgment against Millennium, and remand the case against Millennium for a new trial. If Anson timely files a remittitur as described later in this opinion, we will affirm the judgment as modified instead of reversing and remanding for a new trial. I. BACKGROUND James Zou of Anson was importing FOCO juice and selling it to Starco and Millennium, companies owned by Mohammad Javed. Their arrangement expanded to include other Chinese products such as cell phone accessories and scooters. Zou testified that he and Javed agreed to various terms that governed their transactions, such as the amount of Zou’s commission. Zou and another Starco or Millennium employee agreed how freight charges would be estimated and then revised based on actual freight charges after shipment. Although Zou testified that he believed Anson was dealing with Starco, Zou was told to direct most of the invoices to Millennium, which was another company owned by Javed. Starco would make payments to Anson on behalf of Millennium. After delivery of the products to Millennium, Millennium would sell the products to Starco at a higher price. Starco and Millennium fell behind on payments to Anson, so Anson sued both companies. The trial court admitted into evidence a “customer balance detail” (CBD) listing invoices that Anson claimed were owed by Millennium and payments made against those invoices. Zou testified that his accounting had been done with QuickBooks and had some errors and duplicate invoices. He testified that Starco and Millennium also had accounting errors. According to Zou’s testimony, the CBD was prepared by his attorney and opposing counsel as part of settlement efforts to “get it straight.” The errors were sorted out and solved with the CBD, which showed that Millennium owed Anson about $1,178,742 in unpaid invoices. That amount included $283,365.75 in freight charges. Zou testified that he believed Millennium and Starco owed more than the CBD showed, but Zou agreed to accept the lower number as part of the settlement effort. Documents such as invoices referenced in the CBD were also admitted as exhibits. Zou testified that every invoice issued to Starco was paid. Every invoice for which he claimed compensation in this lawsuit was issued to Millennium. Zou testified that Starco and Millennium would receive the products and count them. He acknowledged that sometimes issues arose such as missing shipments or short shipments. In all the years they were dealing together, there were only a “couple of times for short shipment,” according to Zou. In those circumstances, Zou would contact the factories and have additional products sent. A Starco or Millennium employee would always contact Zou within a couple of days after receiving products to let Zou know if everything was okay or not. A Millennium employee confirmed that quantity discrepancies were discussed with Zou immediately or within thirty days. Regarding freight charges, Zou testified that the freight charges he billed to Starco and Millennium were the charges he incurred; he didn’t make any profit in the freight charges. Zou acknowledged at trial that he invoiced Millennium for shipping ninety-five containers in 2016, according to the invoices referenced in the CBD. Zou also testified, however, that only twenty-nine containers were actually delivered to Millennium in 2016. He admitted that he should not have billed for more than twenty-nine containers in 2016. The jury found that both Starco and Millennium failed to comply with agreements with Anson and that at least some of the breaches were excused. The jury awarded no damages to Anson for Starco’s breaches but awarded $1,178,742.17 in damages for Millennium’s breaches, minus a credit of $32,670 related to one of the invoices in evidence. The trial court signed a final amended judgment awarding to Anson, against Millennium, $1,146,072.17 in damages and $205,351.02 in prejudgment interest. II. JOINT ENTERPRISE Anson argues in its first two issues that the trial court erred by (1) denying Anson a directed verdict on a joint enterprise theory of recovery against Starco; and (2) granting Starco a directed verdict on the joint enterprise issue and refusing to submit a jury question on joint enterprise. Starco and Millennium respond that a joint enterprise theory of recovery is inapplicable to a breach of contract claim. We agree with Starco and Millennium. “The theory of joint enterprise is to make each party thereto the agent of the other and thereby to hold each responsible for the negligent act of the other.” Shoemaker v. Whistler’s Estate, 513 S.W.2d 10, 14 (Tex. 1974) (emphasis added); see also Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000); Restatement (Second) of Torts § 491 (1965); Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence PJC 10.11 (2022). Joint venture liability is a “unique creation of American jurisprudence,” having been applied “almost solely in the field of automobile law” to impute the negligence of a driver to a passenger with the effect of barring a passenger from recovering against a driver due to contributory negligence. See Shoemaker, 513 S.W.2d at 14–16. While adopting the Restatement of Torts, the supreme court limited the doctrine’s application to enterprises having a business or pecuniary purpose. See id. at 17. The concepts of partnership, joint venture, and joint enterprise are related, but a joint enterprise is distinct from a partnership or joint venture; a joint enterprise has different elements. See Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, L.P., 58 S.W.3d 263, 272–73 (Tex. App.—Fort Worth 2001, pet. denied). Although this court has assumed without deciding that joint enterprise liability could apply for non-tort claims, Anson cites no case upholding liability for non-tort claims under a theory of joint enterprise. See Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 218 n.9 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We have found none. We cannot expand upon joint enterprise liability as adopted by the Supreme Court of Texas in Shoemaker. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 526– 29 (Tex. 2002) (holding that the lower courts erred by approving a jury charge that differed from the Restatement’s definition of joint enterprise); see also Lubbock Cnty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the function of a court of appeals to abrogate or modify established precedent.”); Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“[A]s an intermediate court of appeals, we must follow the Texas Supreme Court’s expressions of the law and leave changes in the application of common-law rules to that higher authority.”). Accordingly, we decline to apply the concept of joint enterprise to authorize a party’s vicarious liability for a breach of contract. The trial court did not err by denying Anson’s request for a directed verdict on joint enterprise, granting a directed verdict to Starco on the issue of joint enterprise, and denying a jury question for joint enterprise. Anson’s first and second issues are overruled. III. ASSIGNMENT In its third issue, Anson contends that the trial court erred by refusing to submit a jury question on the issue of assignment. Anson contends that the purpose of the question was to make Starco liable for the damages that the jury awarded against Millennium. The requested instruction appears as follows: If you answered Question Number 5 “Yes,” and you answered Question Number 7 “No,” answer Question Number ___. Otherwise do not answer Jury Question Number ___. Did Starco assign the agreement it had with Anson to Millennium? An “assignment” is the transfer of some right of interest from one person or entity to another. It is not necessary for the assignment of a contract to be in writing. However, the assignment of a contract to another does not relieve the party making the assignment from the legal obligation to perform, unless there is an explicit provision in the assignment relieving it of legal responsibility. Answer “Yes” or “No.” Answer: ___________[1] Assuming without deciding that the trial court erred by not submitting this requested instruction, we cannot conclude that this error probably caused the rendition of an improper judgment. The omission of a jury instruction is reversible error only if the omission probably caused the rendition of an improper judgment. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006); see also Tex. R. 44.1(a). Error in the omission of an issue is harmless when the jury’s answers to other issues are sufficient to support the judgment. Shupe, 192 S.W.3d at 579–80 (noting that a jury question may be immaterial, and therefore its submission harmless, when the answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict). Here, the jury answered, “Yes,” to Question No. 7, which asked whether Millennium’s failure to pay one or more invoices was excused. Because the assignment question was predicated on a “No” answer to Question No. 7, the jury would not have answered the requested assignment question even if it were submitted. Under these circumstances, the assignment question was immaterial because it could not alter the verdict, and its omission did not probably cause the rendition of an improper verdict. Cf. Air Prods. & Chems., Inc. v. Odfjell Seachem A/S, 305 S.W.3d 87, 101 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (reasoning that a jury question concerning apportionment of fault to a party, which was predicated on a finding of negligence of the party in a prior question, was immaterial when the jury found that the party was not negligent in the prior question; thus, the jury did not answer the apportionment question, and its submission was harmless). Anson’s third issue is overruled. IV. JUDICIAL ADMISSIONS In its first issue, Millennium asks this court to reverse the trial court’s judgment and render a judgment that Anson take nothing because Anson “judicially disclaimed” any contract with Millennium. Millennium relies on case law about judicial admissions and points to Anson’s counsel’s statements made during the charge conference and in a post-judgment motion regarding Anson’s theories of liability against Starco based on assignment and joint enterprise.[2] To be considered a judicial admission, a party’s statement must be clear, deliberate, and unequivocal. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). If the admission is not retracted, it will have conclusive effect and bar the admitting party from later disputing the admitted fact. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001); Griffin v. Superior Ins. Co., 338 S.W.2d 415, 418 (Tex.1960). A judicial admission must be an intentional act of waiver, “not merely a statement of assertion or concession, made for some independent purpose.” Bliss & Glennon Inc. v. Ashley, 420 S.W.3d 379, 393 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Courts will consider the context of the statement to determine whether a statement is a judicial admission. See In re Spooner, 333 S.W.3d 759, 764–65 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding [mand. denied]); see also Highlands Ins. Co. v. Currey, 773 S.W.2d 750, 755 (Tex. App.—Houston [14th Dist.] 1989, writ denied) (finding no admission based on a statement made in a motion to dismiss because the party specifically denied the same fact in its first amended answer and counterclaim); Barstow v. State, 742 S.W.2d 495, 509 (Tex. App.—Austin 1987, writ denied) (finding no admission because the remainder of the motion contained conflicting statements). Here, Anson’s statements asserting that its only contract was with Starco were made in the context of Anson’s arguments in support of various theories of liability against Starco—assignment and joint enterprise. Anson pleaded in its live petition that Millennium breached its contract with Anson, and Anson pursued this claim throughout trial. The jury found that Millennium breached its contracts with Anson and awarded Anson damages. Under these circumstances, Anson’s arguments are properly understood as ones made in the alternative for imposing liability on Starco; Anson did not judicially admit that it had no contract with Millennium. See, e.g., Valdes v. Moore, 476 S.W.2d 936, 940 (Tex. App.— Houston [14th Dist.] 1972, writ ref’d n.r.e.) (“[A]llegations made in inconsistent, alternative pleadings do not constitute judicial admissions, nor, for that matter, even evidence of the matters so recited.”). Millennium’s first issue is overruled. V. SUFFICIENCY OF THE EVIDENCE In its second issue, Millennium contends that the evidence is legally and factually insufficient to support each element of a breach of contract claim against it: that an offer was made, it was accepted, there was a meeting of the minds on all essential elements, goods or services were received by Millennium, goods or services were not effectively rejected, acceptance was not revoked, or the amount of money that would fairly and reasonably compensate Anson for its damages. A. Standards of Review Evidence is legally sufficient if, viewing all the evidence in the light most favorable to the finding and considering any undisputed or conclusive contrary evidence, a reasonable factfinder could find the challenged fact to be true. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016). Evidence of a vital fact’s existence is legally insufficient if (1) no evidence in the record supports it, (2) rules of law or of evidence bar the court from giving weight to the only evidence offered to prove it, (3) there is no more than a scintilla of supporting evidence, or (4) the evidence conclusively establishes the converse. See id. at 613. When reviewing for factual sufficiency, we consider and weigh all of the pertinent evidence, and we will set the finding aside only if “the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered.” Id. at 615. Whether reviewing the evidence for legal or for factual sufficiency, we defer to the jury’s reasonable credibility determinations. Noble Drilling (US) LLC v. Deaver, 596 S.W.3d 482, 487 (Tex. App.—Houston [14th Dist.] 2020, no pet.). We measure the sufficiency of the evidence against the jury instructions for which there were no objections. See JJJJ Walker, LLC v. Yollick, 447 S.W.3d 453, 460 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). The parties appear to agree on appeal that we should measure the sufficiency of the evidence based on the jury instructions. B. Jury Questions No. 5 and 6 The jury was asked in Question No. 5: Did Anson and Millennium have one or more agreements for the supply and importation or sale of goods and supply of services by Anson for Millennium? Supply of services may include additional air freight, local freight (trucking) and related costs, customs, duties, advances of wharfage, demurrage charges, etc. In deciding whether the parties reached an agreement, you may consider what they said and did in light of the surrounding circumstances, including any earlier course of dealing. You may not consider the parties’ unexpressed thoughts or intentions. The jury answered this question, “Yes.” The jury was asked in Question No. 6: Did Millennium fail to comply with any of the agreements? Millennium failed to comply with the agreement found by you in your answer to Question 5, if it failed to pay for any goods or services that it received and did not effectively reject the delivered goods, or revoke acceptance of the delivered goods. You are instructed that in order to find that Millennium effectively rejected any delivered goods, or revoked acceptance of any delivered goods, you must find that Millennium effectively communicated its dissatisfaction to Anson within a reasonable time. The jury answered this question, “Yes.” On appeal, Millennium challenges the jury’s answers to these questions because Anson did not address each invoice separately during Zou’s testimony. However, Zou testified about the business agreement he had with Starco and Millennium and their course of dealing over several years in which Anson would sell Starco or Millennium goods and those companies would pay Anson’s invoices for those goods. Zou discussed his agreement to bill freight charges, which Anson incurred, to the companies. Zou testified that he relied on Starco or Millennium to let him know if any items were not delivered, but that he was notified about only a few short shipments or problems with shipments. In those cases, he had the factories ship additional goods to Starco or Millennium. Millennium does not cite to any evidence contrary to Zou’s testimony that would undermine the jury’s answers to Questions No. 5 and 6. The evidence is legally and factually sufficient to support the jury’s answers to Questions No. 5 and 6. C. Jury Question No. 8 The jury was asked in Question No. 8: What amount of money, if any, if paid now in cash, would fairly and reasonably compensate Anson for its damages, if any, that results from Millennium’s failure to comply? Consider the following element of damages, if any, and none other. . . . . The difference, if any, between the amount that it was agreed Anson should receive for the goods and the supply of services provided and the amount Anson was paid for the goods and services provided. Do not include in your answer to this Question an award of money representing any invoice (or portion thereof) where you found in your answer to Question 7 that Millennium’s failure to comply with that invoice or partial invoice was excused. The jury answered, $1,178,742.17. The amount that the jury answered is the same amount that Anson claimed Millennium owed according to the CBD exhibit. Millennium attacks this amount in the same way it challenges the jury’s answers to the other questions; Millennium contends that Anson needed to have someone testify about the value of goods and services delivered for each of the more than 150 invoices listed on the CBD, which were also admitted into evidence. For example, Millennium contends that Anson needed to provide more detailed evidence about “demurrage” charges totaling $35,400 on the CBD. But Millennium and Starco’s witness testified that they were responsible for demurrage charges that were incurred if they didn’t pick up or unload their products and timely return the shipping containers. Demurrage charges were listed in the CBD with corresponding invoices that were admitted into evidence. Similarly, Zou testified how freight charges were determined and passed along to Millennium at cost, and the CBD listed the various freight charges with corresponding invoices that were admitted into evidence. Millennium also attacks the damages, as derived from the CBD, because Zou testified intermittently that the CBD was not accurate or correct. But Zou’s testimony in this regard does not undermine the CBD numbers because the charges listed in the CBD reference specific invoices that were admitted into evidence. And his testimony must be viewed in context of his other testimony claiming that the CBD underrepresented the amount of money he was owed by Millennium, yet he agreed to adjustments to the CBD in an effort to settle the lawsuit. Considering the testimony detailed above, the invoices, and the CBD, the evidence is legally sufficient to support the jury’s award of $1,178,742.17 in Question No. 8. The record in this case is unlike the records in the cases cited in Millennium’s brief, which involved the failure of proof regarding the existence of an agreement. See, e.g., Westwood Dental Mgmt., Inc. v. Darby Dental Supply, LLC, No. 01-16-00166-CV, 2017 WL 3389911, at *2 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017, no pet.) (mem. op.) (reversing summary judgment when the record contained no evidence about any agreement for the provision of goods or services for a fee). However, Millennium makes an additional specific challenge on appeal to the $283,365.75 in freight charges, which were included as part of the CBD’s total amount owing of $1,178,742.17. Millennium contends that Anson billed for “78 containers shipped in 2016 even though Anson admitted it only should have charged for 29 containers—an overcharge in the amount of 49 containers.” On appeal, Anson does not dispute Millennium’s factual assertion. We take it as true. See Tex. R. App. P. 38.1(g). Indeed, Zou testified on cross-examination that Anson billed Millennium for shipping ninety-five containers in 2016, that Anson only delivered twenty-nine containers to Millennium in 2016, and that Anson should not have billed for more than twenty-nine containers in 2016. The invoices in the record indicate that freight charges in 2016 ranged from $590 to $790 per container and that Anson billed Millennium for at least forty-nine containers at the highest rate; a total of $38,710.[3] When Zou’s testimony about freight charges in 2016 is weighed against the CBD and supporting invoices, we conclude that the credible evidence supporting the jury’s damages award is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Millennium’s second issue is sustained in part. D. Remittitur A court of appeals may exercise its authority to suggest a remittitur when there is insufficient evidence to support the full amount of an award, but sufficient evidence to support a lesser award. Qin v. Yang, No. 14-22-00197-CV, 2023 WL 4783550, at *12 (Tex. App.—Houston [14th Dist.] July 27, 2023, no pet. h.) (mem. op.); see also Tex. R. App. P. 46.3. Here, the evidence is factually insufficient to support the jury’s full award of damages. The evidence, however, is sufficient to support the jury’s award less $38,710, or a total damages award of $1,107,362.17 after applying the jury’s finding regarding credits. Accordingly, we suggest to Anson a remittitur of $38,710 in damages plus $6,935.98 in related prejudgment interest. VI. CONCLUSION Anson’s issues are overruled. Millennium’s first issue is overruled. Millennium’s second issue is overruled in part and sustained in part because the evidence is factually insufficient to support the jury’s answer to Question No. 8 regarding the amount of damages. If Anson files a remittitur within twenty days from the date of this opinion, we will modify the trial court’s judgment to reflect an award of $1,107,362.17 in damages and $198,415.04 in prejudgment interest, and we will affirm the judgment as modified. Otherwise, the judgment against Millennium will be reversed and remanded for a new trial as to liability and damages against Millennium. See Qin, 2023 WL 4783550, at *12; see also Tex. R. App. P. 44.1(b); Tex. R. App. P. 46.3. Regardless, the part of the trial court’s judgment ordering that Anson take nothing on its claims against Starco is affirmed. Ken Wise Justice Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
