Full opinion text
OPINION CHARLES KREGER, Justice. Celtic Properties, L.C. (“Celtic”) filed a lawsuit against Cleveland Regional Medical Center, L.P. (“CRMC”) for breach of a lease agreement, failure to pay rent, and breach of CRMC’s common law duty to maintain the building it leased in a suitable condition. Celtic amended its suit adding Community Health Systems, Inc. (“CHS”) and CHS/Community Health Systems, Inc. (“CHS/CHS”) as defendants, alleging additional causes of action. After trial on the merits, the jury returned a verdict in favor of Celtic. Following the jury’s verdict, CRMC filed a motion for new trial and a motion for judgment notwithstanding the verdict. The trial court entered final judgment in favor of Celtic on March 11, 2009. CRMC, CHS and CHS/CHS (collectively referred to as “appellants”) filed this appeal raising thirteen separate issues. We affirm in part and reverse in part. FACTUAL BACKGROUND In 1994, CRMC suggested that Dr. Rick Kelley and Dr. John Murphy jointly move them medical practices to a facility in Cleveland, Texas to encourage the production of more patient services in their respective fields of practice. Drs. Kelley and Murphy agreed and formed Celtic Properties, L.P., to purchase 301 Sleepy Hollow in Cleveland, Texas, the property at the center of this dispute (“Property”). The Property contained two office suites, 301A and 301B, which were to be divided between Drs. Kelley and Murphy. Both spaces needed renovation. CRMC financed the build-out, which was completed in late 1995. On July 15, 1994, Celtic and CRMC executed a written lease agreement whereby CRMC agreed to lease the Property for five years. After CRMC leased the Property from Celtic, CRMC subleased the Property back to Drs. Kelley and Murphy. The subleases allowed the doctors to amortize the cost of the build-out through their monthly lease payments and allowed CRMC to manage and oversee health care in the community without becoming a property owner. In July 1996, Celtic and CRMC executed a first amendment to the lease. The first amendment modified the rent and extended the lease through June 30, 2003. The original lease agreement of July 15, 1994 and the first amendment to the lease executed in July 1996 together were considered the Master Lease. At some point thereafter Dr. Kelley began experiencing financial difficulties. Eventually, Dr. Murphy purchased Dr. Kelleys interest in Celtic, expecting Dr. Kelley to vacate suite 301A shortly thereafter. The subleases were amended a second time to reflect Dr. Kelleys sale of his interest in Celtic to Dr. Murphy. Contrary to Dr. Murphys expectations, Dr. Kelley continued practicing in suite 301A. The Letter Agreement In 1999, the terms of the Master Lease were renegotiated when Dr. Murphy agreed to act as the medical director of the Cleveland Hospital Rural Health Center in Livingston for CRMC. In February 1999, the parties executed a letter of intent, which expressly stated their mutual “intent to execute final documents within 60 days.” The letter of intent provided that CRMC would enter a seven year lease with Celtic for the Property at a rental rate of $1.60 per square foot with an escalation clause providing for a two percent increase in year two and a three percent increase per annum for years three through seven. Dr. Murphy agreed to enter into a five year agreement with CRMC to provide patient services at Livingston Rural Healthcare Center and to act as the clinics medical director. Prior to executing the formal letter agreement, CRMC and Dr. Murphy’s attorney negotiated the provisions in the letter of intent. Dr. Murphy’s attorney recommended several changes to the letter to address various issues. The recommended changes were incorporated into the formal letter agreement. Evidence at trial established that the title of the agreement was changed from “Letter of Intent” to “Letter of Agreement” to clarify that the agreement would be a binding, valid contract. The evidence further established that Dr. Murphy expressed concern that Dr. Kelley may vacate suite 301A, and if so, Dr. Murphy wanted Celtic to receive a higher rental rate. To address this concern, the parties added language to the letter agreement to ensure that if Dr. Kelley vacated suite 301A, Celtic would enter into a new rental agreement with CRMC. The agreement further provided that Celtic was to pay to CRMC any remaining balance due from the doctors to CRMC for the initial build-out. The formal letter agreement (“Letter Agreement”), dated May 14, 1999, signed by Celtic and CRMC, stated that the letter was to “Amemorialize our agreement concerning the lease of certain medical office space located at 301 Sleepy Hollow, Cleveland!,] Texas.” The Letter Agreement referenced the Master Lease, which was attached as an exhibit and “incorporated ... for all purposes.” The Letter Agreement provided in part: The formal letter agreement (“Letter Agreement”), dated May 14, 1999, signed by Celtic and CRMC, stated that the letter was to memorialize our agreement concerning the lease of certain medical office space located at 301 Sleepy Hollow, Cleveland!,] Texas. The Letter Agreement referenced the Master Lease, which was attached as an exhibit and incorporated ... for all purposes. The Letter Agreement provided in part: The terms of the agreement are as follows: 1. Cleveland Regional Medical Center (CRMC) will occupy medical office space located at 301 Sleepy Hollow, Suite 301B, Cleveland, Texas, subject to the terms and conditions of the master lease between CRMC and Celtic Properties, dated July 15, 1994 as amended July 15,1996. 2. In the event that Suite 301A is vacated during the term of the master lease described in paragraph 1, the parties agree: a. The master lease shall terminate and be of no further force or effect. b. CRMC and Celtic Properties shall enter into a Master Lease for the entire medical office space (approximately 7,661 sq. Ft.) Located at 301 Sleepy Hollow, Cleveland, Texas for a term to expire May 31, 2006. If the tenant in Suite 301-A vacates the premises, Celtic Properties shall have at least sixty (60) days, from the date the vacation starts, to obtain financing and enter into a new Master Lease that covers the entire medical office space, with CRMC subject to the same terms and conditions in Paragraph 2(c). c. Rent during the term of the master lease described in paragraph 2(b) shall be set at $1.60 per square foot monthly. During the term of the Master Lease described in Paragraph 2(b), rental rates shall be set at $1.60 per sq. !f]t. with an escalation clause providing for a two percent (2%) increase in year two (2) and an increase of three percent (3%) per annum for years ... three through seven, based upon a total agreed square footage of 7,661 sq. ft., payable in equal monthly installments, d. Celtic Properties will pay to CRMC the entire unamortized amount of the build out of the building. 3. The above-referenced agreements will be prepared consistent with the customary format utilized by Cleveland Regional Medical Center, L.P. When Dr. Murphy left to direct the Livingston Clinic, other physicians subleased suite 301B from CRMC. In April 2002, Dr. Murphy inquired of CRMC regarding the status of his repayment of the build-out costs for suite 301B. CRMC initially told Dr. Murphy that the build-out cost would be fully amortized in September 2002. However, CRMC later informed Dr. Murphy that the September 2002 date was incorrect and that the build-out cost would not be fully amortized until September 2003. Dr. Murphy testified at trial that another physician rented suite 301B from CRMC from 2002 until 2007. In December 2003, Dr. Kelley gave CRMC notice that he would vacate suite 301A in February 2004. Dr. Murphy testified that CRMC did not inform him of Dr. Kelley’s plan to vacate the leased premises. According to Dr. Murphy, he did not learn that Dr. Kelley had vacated suite 301A until June 2004. Dr. Murphy explained that pursuant to the Letter Agreement, once Dr. Kelley vacated suite 301A, the Master Lease terminated and CRMC was obligated to begin paying Celtic $1.60 a square foot in rental income. In June 2004. Dr. Murphy received a letter from then CEO of CRMC, Ron MacLaren, stating that a new physician was interested in leasing suite 301A and had requested that CRMC pay for certain renovations to the suite. Dr. Murphy testified that after receiving this letter, he scheduled a meeting with MacLaren at the Property. According to Dr. Murphy, at the meeting he demanded the increased rent of $1.60 a square foot, which he contended he was due under the Letter Agreement. Dr. Murphy farther testified that he and Ma-cLaren discussed renovations to suite 301A to accommodate the new physician, as well as the execution of a new master lease agreement. Dr. Murphy stated that Ma-cLaren agreed at the meeting to execute a new agreement. However, Dr. Murphy had no follow-up conversations with Ma-cLaren regarding the new lease agreement or the higher rental rate because MacLaren subsequently left CRMC’s employment. Dr. Murphy testified that he later raised the issue of a new master lease and the higher rental rate CRMC owed Celtic under the Letter Agreement with the subsequent CEO of CRMC, Jude Torchia, and with Steve Courtier, a representative for CRMC. Around September of 2004, Dr. Murphy and his wife met with Torchia and Courtier to discuss these issues. Following this meeting, Dr. Murphy and his wife contacted Brian Russo, a representative of CHS, who had been employed with CRMC when the Letter Agreement was initially executed and was familiar with the transactions and history behind the agreement. Dr. Murphy faxed copies of his communications with MacLaren to Russo in hopes that Russo could help resolve the issue. Dr. Murphy and his wife had a follow-up meeting with Torchia and Courtier in October 2004. At this point, Torchia and Courtier had been with CRMC for several months. Mrs. Murphy testified that Torc-hia and Courtier indicated they were still learning the business and had not focused on the lease issue, however, she and Dr. Murphy left the meeting with the understanding that the parties were working towards a resolution. Mrs. Murphy did not recall hearing anything else from CRMC or CHS regarding the issue after the October meeting. The record reflects no further action taken until February 2005, when Celtic made a demand for rent escalations on another property lease between the parties. According to Mrs. Murphy, she hand delivered a demand to Courtier for rent escalation on another property, and Courtier responded that he would not agree to have CRMC pay rental increases on either property because his job was to make money for the hospital. Dr. Murphy testified that subsequent to learning of Courtiers position, he encountered Torchia at the hospital, and the two exchanged harsh words regarding the parties rental disputes. After this exchange, Murphy hired an attorney to represent him in his disputes with the hospital. The Water Intrusions Dr. Murphy occupied suite 301B at the Property from 1995 until 1999. During this time, he recalled two instances of water intrusions. The first instance occurred around January 1996. Dr. Murphy testified water entered the building after a heavy rain. He immediately called a carpet company to clean up the water. Dr. Murphy stated that the company performed mold and mildew treatment, and he never experienced any problems with mold or other water damage from that incident. Later that same year, a heavier rain resulted in another water intrusion. Dr. Murphy testified that once again he immediately had the water cleaned up and never saw mold, mildew, or other water damage. When Dr. Murphy vacated suite 301B in 1999, Dr. Stanus Law subleased the suite from CRMC. According to Dr. Murphy, Dr. Law never complained of water intrusions into the leased space. Thereafter, in 2003, Dr. Keith Spooner subleased suite 301B, and he never complained to Dr. Murphy about water intrusions in the building. However, Dr. Spooner testified that when he moved into suite 301B he noticed water would get into the waiting room, and he brought that to the attention of CRMCs maintenance department and they addressed the problem. In addition to the two occasions Dr. Murphy recalled where water got into the waiting room, Dr. Spooner recalled two additional instances of flooding in suite 301B. With respect to the first instance of flooding, Dr. Spooner immediately called the carpet company to extract the water and treat the carpets. The next day, Dr. Spooner notified CRMCs maintenance department of the flooding. Dr. Spooner testified that he was not aware of any damage to his suite resulting from the incident. Dr. Spooner did not notify Dr. Murphy of the incident. Dr. Spooner did, however, inform MacLaren that he had a water problem in suite 301B that he had resolved. Dr. Spooner recalled the second water intrusion occurred in 2004, which made some of the carpet in suite 301B soggy. Again, Dr. Spooner called the carpet company to extract the water and treat the carpet. Dr. Spooner again notified CRMC of the water intrusion, but never spoke with Dr. Murphy. Dr. Spooner stated that he never saw any signs of mold or mildew in suite 301B following either of these incidents. Dr. Spooner never made Celtic aware of these incidents of water intrusion. James Kelly, CRMCs director of engineering, also testified at trial. Kelly indicated that he is responsible for the maintenance of the facilities managed by CRMC. Kelly testified extensively about various water intrusions and leaks that occurred in suites 301A and 301B. He explained that the doctors leasing the premises contacted him to address various maintenance issues, such as roof leaks, leaks from the air conditioning lines, and flooding of the leased premises during heavy rain. Kelly testified that water would build up and come in underneath the wall of the premises while Dr. Stanus occupied suite 301B. Kelly also testified regarding a major flooding incident that occurred in suites 301A and 301B while Drs. Kelley and Spooner occupied them. In addition to the water intrusions, Kelly testified regarding a water heater that ruptured in the leased premises in early 2005. At the time the water heater ruptured, suite 301A was vacant. Kelly testified that his wife discovered the water and notified him. Upon arriving at the Property and finding water spraying from the ruptured water heater in suite 301A, Kelly turned off the water and called a carpet cleaning company. Kelly testified that the carpet company extracted the water, cleaned the carpet, and replaced the water heater. Kelly further testified that following this incident, sheetrock, wallpaper, and flooring near the water heater needed to be replaced. According to Kelly, the lower four feet of the walls needed to be repaired before another physician could sublease the suite. Kelly testified that he did not attempt to inform Dr. Murphy of the incident involving the water heater and did not know if anyone else from CRMC informed him. However, Dr. Murphy testified that a couple of months after the water heater ruptured, Kelly informed him that the water heater had ruptured and that water had been pouring out of suite 301A. At that time, Dr. Murphy walked through suite 301A and found it “obvious that something major had happened[.]” Dr. Murphy testified that when he walked through the suite, he noticed an odor and “a lot of water stain.” Dr. Murphy testified that the room where the water heater ruptured was “devastated,” leaving the room with water stains, mold, and “just a lot of destruction.” Dr. Murphy stated that he asked Kelly to get suite 301A cleaned up, and Kelly said he would take care of it. The trial court admitted photographs of the damage to suite 301A, which depicted, among other things, major water stains, torn wallpaper, exposed slab, mold damage, and abandoned “hazardous waste” containers. Dr. Murphy testified that he hired an expert to evaluate the suite to determine the cause of the mold damage and, thereafter, hired contractors to determine what it would cost to remove and replace the moldy materials. Kelly told Dr. Murphy that appellants also hired someone to evaluate suite 301A for mold damage and that Kelly’s supervisors told him to get busy “getting the place in shape.” Dr. Murphy suggested that the parties work together to remediate the damage in suite 301A; however, in July 2007, Dr. Murphy learned that appellants had already started remediation projects in both suites. According to Dr. Murphy, a “full blown remediation [was] going on in Suite A and B.” Dr. Murphy stated that he was “stunned” that appellants had gone into suite 301B and started a remediation project because he was not aware of any problems in suite 301B. At the time of trial in October 2007, appellants had not fully restored suite 301B to the condition it was in before they undertook the remediation project as appellants had ceased all repairs. Dr. Murphy testi-fled that he was unable to lease the space in its condition, and that the appellants’ remediation project had interfered with his ability to use the Property. ISSUE ONE In issue one, appellants argue that the trial court erred by rendering judgment in favor of Celtic on jury question one because the evidence was legally insufficient to show that the May 14, 1999 Letter Agreement was a valid contract. In support of issue one, appellants argue that the Letter Agreement is an “unenforceable agreement to agree” in the future and is not a valid, binding contract. Appellants raised this issue in their motion for judgment notwithstanding the verdict (“JNOV”). A JNOV is proper only when a directed verdict would have been proper. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 892, 394 (Tex.1991). In Rush v. Barrios, the court stated: ‘No evidence’ exists, and a judgment notwithstanding the verdict should be entered, when the record discloses one of the following: (1) a complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. 56 S.W.3d 88, 94 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990)). Stated differently, a JNOV is proper only when there is no evidence to support an issue or conversely when the evidence establishes an issue as a matter of law. Id. (citing Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987)). To determine whether the trial court erred in denying a motion for JNOV based on the legal insufficiency of the evidence, we consider only the evidence and the reasonable inferences that support the jury’s answers, disregarding all contrary evidence and inferences. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003). We must consider evidence favorable to the finding if a reasonable factfin-der could, and disregard evidence contrary to the finding unless a reasonable factfin-der could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). “If more than a scintilla of evidence supports the jury finding, it must be upheld.” Mancorp., Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990). Jury question one asked the following: Did CRMC and Celtic agree that in the event Suite 301 A was vacated during the term of the Master Lease and resulting termination of the Master Lease that the parties would be bound by the May 14,1999 Letter Agreement. The jury answered “yes.” “ ‘Whether an agreement is legally enforceable or binding is a question of law.’ ” America’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex.App.-San Antonio 1996, writ denied) (quoting Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 814 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.)); see also Komet v. Graves, 40 S.W.3d 596, 601 (Tex.App.-San Antonio 2001, no pet.) (concluding that an issue regarding whether material terms were left open for future negotiation making the contract unenforceable may not be challenged on the basis of insufficient evidence). In general, a contract is legally binding only if its terms are sufficiently definite to enable a court to understand the parties’ obligations. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.2000). A jury may not be called upon to determine whether an agreement “fails for indefiniteness” as this is a question of law determined by the court. Samaras, 929 S.W.2d at 622. A binding contract may be formed if the parties agree on the material terms, even if they leave other provisions for later negotiation. Scott v. Ingle Bros. Pac., Inc., 489 S.W.2d 554, 556 (Tex.1972); see also 1 Arthur Corbin, Corbin on Contracts § 29, at 93-95 (1963). When a contract leaves essential terms open for future negotiation and adjustment, there is no binding contract that can be enforced. See T.O. Stanley Boot, Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). A letter agreement may be binding even though it refers to the drafting of a future, more formal agreement. See Foreca, S.A. v. GRD Dev. Co., 758 S.W.2d 744, 746 (Tex.1988). “No particular form of words are necessary to create a lease.” Castroville Airport, Inc. v. City of Castroville, 974 S.W.2d 207, 212 (Tex.App.-San Antonio 1998, no pet.) (citing Wilson v. Wagner, 211 S.W.2d 241, 243 (Tex.Civ.App.-San Antonio 1948, writ ref'd n.r.e.)). The May 14, 1999 Letter Agreement references, at taches, and incorporates the prior Master Lease documents, supplies the address of the leased premises, the signatures of both parties, the square footage of the leased space, the lease term, and the rental rate. Celtic submitted evidence showing the negotiations between the parties during the formation of the Letter Agreement and the parties’ mutual intent to make it a binding and enforceable agreement. The agreement leaves no essential term open for future negotiation. Ancillary matters, not essential to the agreement but necessary for a more formal agreement, are expressly provided in paragraph 3 to “be prepared consistent with the customary format utilized by Cleveland Regional Medical Center, L.P.” Though a jury may not be called upon to determine whether an agreement is legally enforceable, whether parties intend to be bound by the terms of an agreement is a question of fact for the jury. Meru v. Huerta, 136 S.W.3d 383, 390 (Tex.App.-Corpus Christi 2004, no pet.). In the present case, this question was answered in the affirmative by the jury. Considering all of the evidence favorable to the jury’s finding and disregarding evidence to the contrary unless a reasonable factfinder could not, we hold that the evidence was legally sufficient to support the jury’s finding that the parties intended to be bound by the May 14, 1999 Letter Agreement. See City of Keller, 168 S.W.3d at 827. We overrule CRMC’s first issue. ISSUE TWO In issue two, appellants assert that the trial court erred by rendering judgment in favor of Celtic on jury question one because the evidence established CRMCs affirmative defense of accord and satisfaction. After the jury’s verdict appellants sought a new trial inter alia on this basis. In their motion for new trial, appellants argued that the court committed reversible error by refusing to submit a jury question on accord and satisfaction. “Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment!.]” Tex.R. Civ. P. 278. Appellants failed to submit a jury question on their affirmative defense of accord and satisfaction. See id. “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.” Tex.R. Civ. P. 279; see also Bank of El Paso, 847 S.W.2d at 222-23. Unless appellants’ affirmative defense of accord and satisfaction was conclusively established by the evidence presented at trial, the defense is waived. See Tex.R. Civ. P. 279. Appellants argue that accord and satisfaction is established as a matter of law because Dr. Murphy accepted and cashed rental payments in the lesser amount owed under the Master Lease through May 2006, even after learning in June 2004 that Dr. Kelley had vacated suite 301A. “An accord and satisfaction exists when parties agree to discharge ‘an existing obligation in a manner other than in accordance with the terms of their original contract.’ ” Richardson v. Allstate Tex. Lloyd’s, 235 S.W.3d 863, 865 (Tex.App.-Dallas 2007, no pet.) (quoting Avary v. Bank of Am., N.A., 72 S.W.3d 779, 788 (Tex.App.-Dallas 2002, pet. denied)). This defense involves a new contract, either express or implied, wherein the parties agree that the existing obligation is released by means of a lesser payment, which is tendered and accepted. Id.; see also Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969). The evidence must establish an agreement between the parties that the lesser amount paid “was in full satisfaction of the entire claim.” Jenkins, 449 S.W.2d at 455. Thus, there must be an “unmistakable communication to the creditor that tender of the reduced sum is upon the condition that acceptance will satisfy the underlying obligation.” Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 863 (Tex.2000) (citing Jenkins, 449 S.W.2d at 455). In Pate v. McClain, we elaborated on this standard as follows: An unmistakable communication must be made by one party that the tender of a lesser sum is undoubtedly and unquestionably upon the condition and premise that the acceptance of the lesser sum will constitute complete satisfaction of the underlying obligation and this clearly communicated condition must be plain, definite and certain. There should be a statement that accompanies the tender of the lesser sum, which statement also must be so clear and so explicit and so complete that the statement is simply not susceptible of any other interpretation but one of complete accord and complete satisfaction. 769 S.W.2d 356, 361-62 (Tex.App.-Beaumont 1989, writ denied). Acceptance of a tendered cheek, without more, is not enough to constitute accord and satisfaction. Id. The parties must mutually assent to form a new agreement to satisfy the original obligation, and the parties’ intent is controlling. See Richardson, 235 S.W.3d at 865. CRMC relies on Ostrow v. United Business Machines, for the proposition that “[w]here [a] check is tendered in an effort to discharge or modify an existing and disputed obligation between the parties, the acceptance of the check constitutes an accord and satisfaction.” 982 S.W.2d 101, 104 (Tex.App.-Houston [1st Disk] 1998, no pet.). In Ostrow, the plaintiff returned a computer she had purchased to UBM and asked for a full refund. Ostrow, 982 S.W.2d at 103. After signing a document entitled “Full Payment and Release” she was refunded the purchase price minus a fifteen percent restocking fee. Id. Written on the front of the refund check UBM gave plaintiff for the lesser amount, were the words “full payment and release.” Id. The back of the check stated “Endorsement or deposit of this check represents a release of all claims by Ostrow & Associates against UBM.” Id. Plaintiff endorsed and deposited the check. Id. In holding that the plaintiffs acceptance of the check constituted an accord and satisfaction, the court stated, “[w]hen a check listing certain conditions is tendered to a party and the conditions are accepted, a contract is formed when the check is cashed or deposited.” Id. at 104. In Os-trow, unlike in the present case, there was an unmistakable communication by one party that tender of the lesser sum was conditioned on the premise that acceptance of the lesser sum would constitute “full payment” and “release of all claims by Ostrow ... against UBM.” Id. at 103. Appellants also rely on Metromarketing Servs., Inc. v. HTT Headwear, Ltd., 15 S.W.3d 190 (Tex.App.-Houston [14th Dist.] 2000, no pet). Like the check accepted in Ostrow, the check accepted and cashed by the plaintiff in Metromarketing bore a notation stating that it constituted “final payment for commissions.” Metromarketing Servs. Inc., 15 S.W.3d at 197. Here, there is evidence that Dr. Murphy continued to accept the rental payments under the Master Lease while attempting to enforce the Letter Agreement. The check stubs offered into evidence by CRMC did not expressly provide that acceptance of such checks constituted a settlement of- the parties’ rental dispute. There is no evidence of a statement that tender of the lesser rental amount was “undoubtedly and unquestionably” on the condition that acceptance would constitute complete or full satisfaction of CRMC’s obligation to pay a higher rental rate under the Letter Agreement. See Pate, 769 S.W.2d at 361-62; see also Jenkins, 449 S.W.2d at 455. Appellants failed to conclusively establish their affirmative defense of accord and satisfaction, therefore, this defense is waived. We overrule issue two. ISSUE THREE In issue three, appellants assert that the trial court erred by improperly excluding an alleged admission by Celtic that the Master Lease was in “full force and effect.” Specifically, appellants argue that the trial court erred in excluding a string of emails between Celtics prior counsel and CRMC’s counsel, dated prior to the filing of the underlying lawsuit. On March 17, 2005, counsel for Celtic sent a letter to Steve Courtier concerning the rights and obligations of the parties with respect to two separate properties owned by Celtic and leased by CRMC, “The East Dallas Lease” and “The Sleepy Hollow Lease.” With respect to the Sleepy Hollow Property, Celtic’s counsel asserted that the initial term of the lease had expired, but made no reference to the May 14, 1999 Letter Agreement. CRMC’s counsel responded to Celtic’s letter by email dated May 24, 2005, indicating CRMC’s position with regard to the two leases. CRMC’s counsel asserted, among other things, that the Master Lease term automatically renewed, extending the Master Lease on the Sleepy Hollow Property until June 30, 2008. Counsel further stated as to the Master Lease, “[c]ontrary to your assertion in your letter, the lease is fully current, in full force and effect and there is no holdover occurring.” Celtic’s counsel responded via email and asked for additional time to examine the leases in light of CRMC’s analysis. After receiving no response from Celtic’s counsel, CRMC’s counsel sent another email regarding “Lease Issues with Cleveland Regional Medical Center” asking Celtic to advise CRMC of Celtic’s position. In a response dated October 6, 2005, Celtic’s counsel stated: Sorry this drug out so long. I agree with your analysis in your May 24th email. Please calculate the adjustment on the East Dallas lease for payment and I will do the same. I look forward to hearing from you. “Whether to admit or exclude evidence is a matter committed to the trial court’s sound discretion.” Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.2001) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989)). “To reverse a judgment based on a claimed error in admitting or excluding evidence, a party must show that the error probably resulted in an improper judgment.” Id.; see also Tex.R.App. P. 44.1(a); Alvarado, 897 S.W.2d at 753; McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992). We must review the entire record to determine if the excluded evidence probably resulted in the rendition of an improper judgment. McCraw, 828 S.W.2d at 758; Gee, 765 S.W.2d at 396. Appellants contend that Celtic’s counsel’s statement in the email, “I agree with your analysis in your May 24th email,” constituted an admission by a party opponent and equated to a concession by Celtic “that the parties’ contractual relationship was defined by the Master Lease” as opposed to the Letter Agreement. Initially, appellants rely on this court’s holding in Westchester Fire Ins. Co. v. Lowe, 888 S.W.2d 243, 252 (Tex.App.-Beaumont 1994, no writ) for the proposition that “allegations and statements made by the party’s authorized attorney are the party’s statements.” Such reliance is misplaced as Lowe concerned judicial admissions by an attorney filing pleadings with the court containing assertions of fact and is distinguishable. The email in question here was not filed as part of a pleading in a court proceeding. Nevertheless, we conclude the emails were admissible. While the attorney’s statement was in the nature of an opinion rather than a declaration of fact, as long as the agent’s statement is made during the existence of the employment relationship and concerns a matter within the scope of that employment, it is admissible against the principal, even if the employee had no authority to speak for the principal. See Tex.R. Evid. 801(e)(2)(D); see also Edwards v. Tex. Empl. Comm’n, 936 S.W.2d 462, 467 (Tex.App.-Fort Worth 1996, no wilt). Thus, the attorney’s statement was admissible against his client, Celtic. Appellants assert that they attempted to introduce this evidence during Dr. Murphys cross-examination and again during the direct examination of CRMCs counsel who testified about the reasonableness of Celtics attorneys fees, but that the trial court improperly excluded the evidence on hearsay grounds. While our review of the record shows there was much confusion surrounding the admissibility of this evidence, the record reveals that defendants’ exhibit 68, which consists of the string of email correspondence between counsel, was admitted into evidence but was not offered or referenced during counsels cross-examination of Dr. Murphy at trial. The record reveals that the only time CRMC sought to elicit testimony regarding exhibit 68 was during the direct examination of CRMC’s expert witness, Nick Simms, to rebut the reasonableness of Celtics stated attorneys fees. When CRMC attempted to reference the emails during the direct examination of Simms, Celtic objected and incorrectly stated that the trial court had “specifically excluded [the emails] on the basis of hearsay and lack of reliability.” CRMC argued exhibit 68 was relevant to the issue of attorneys fees because if Celtics lawyer agreed with CRMCs analysis that the Master Lease was still in effect, Celtic was not justified in filing the lawsuit and thus, no amount of attorney’s fees would be reasonable or necessary under such circumstances. Counsel for CRMC offered the document pursuant to Rule 705 of the Texas Rules of Evidence as facts relied upon by Simms in forming his expert opinion as to the reasonableness of Celtics attorneys fees. See Tex.R. Evid. 705. Counsel for Celtic objected on the basis that the document was irrelevant, highly prejudicial, and constituted hearsay. The trial court sustained the. objection. As set forth above, Exhibit 68 was admitted into evidence during the pretrial conference. However, assuming the trial court excluded the exhibit, as asserted in the dissent, and that the jury never considered it, and its exclusion was error, appellants must still show that the error was harmful. See Tex.R.App. P. 44.1. Generally, a successful challenge to a trial court’s evidentiary rulings requires the complaining party to demonstrate that the judgment turns on the particular evidence excluded or admitted by the trial court. Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000); Alvarado, 897 S.W.2d at 753-54. Ordinarily, an appellate court will not reverse a trial court’s judgment because it erroneously excluded evidence when the evidence in question is cumulative and not controlling on a material issue dispositive to the case. Interstate Northborough P’ship, 66 S.W.3d at 220; Able, 35 S.W.3d at 617-18; Reina v. Gen. Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417 (Tex.1981) (holding the exclusion of cumulative evidence is not reversible error). Error from the improper exclusion of cumulative evidence is generally deemed harmless. See Interstate Northborough P’ship, 66 S.W.3d at 220. Moreover, an admission by a party opponent, being merely a piece of evidence, is not conclusive against the party opponent; it is simply admissible and the party may offer evidence in contradiction or explanation of it. See 2 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence § 801.7 (3d ed. 2002). Appellants argue that the October 6th email contains an admission that the Master Lease was in “full force and effect.” However, the email is ambiguous and only states that the attorney agrees with counsel’s “analysis” in a prior email, presumably the May 24th email. It is unclear what analysis Celtic’s attorney intended to reference as the May 24th email dealt with at least two issues. Notably, in the email Celtic’s counsel requested that CRMC’s counsel calculate the adjustment on the East Dallas lease for payment and makes no mention of the Sleepy Hollow lease. Additionally, appellants admitted exhibit 65, correspondence from Celtic’s counsel to CRMC dated March 17, 2005, regarding rental disputes involving both the East Dallas and Sleepy Hollow properties, and cross-examined Dr. Murphy about counsel’s failure to mention the May 14, 1999 Letter Agreement in the original correspondence to counsel for CRMC. Further, Dr. Murphy was questioned concerning a letter from his wife to the hospital, written around the same time period and asking for a higher rental rate, which also omitted any reference to the Letter Agreement. Importantly, and in direct contravention to appellants’ position that counsel for Celtic admitted the parties were bound by the Master Lease and not the Letter Agreement, CRMC offered and had admitted into evidence defendants’ exhibit 80, a letter dated February 16, 2006, from Celtic’s counsel to CRMC’s counsel, which specifically references the Letter Agreement and asserts its application to the lease dispute. Therefore, while the email is probative of appellants’ affirmative defenses of waiver and ratification, it does not establish either waiver or ratification as a matter of law. CRMC’s expert Simms testified, in the alternative, to a lesser sum of reasonable attorney’s fees should the jury have chosen to reject his opinion that no amount of attorney’s fees were reasonable in light of the attorney’s communication. We hold the email correspondence reflected in exhibit 68 was merely cumulative and appellants did not reasonably show that the exclusion of this evidence probably caused the rendition of an improper judgment. We overrule issue three. ISSUES FOUR AND FIVE Issues four and five assert errors in the jury charge regarding the submission of Celtic’s breach of contract claim and will be addressed together. “The trial court has broad discretion in submitting jury questions so long as the questions submitted fairly place the disputed issues before the jury.” McIntyre v. Commn. for Lawyer Discipline, 247 S.W.3d 434, 443 (Tex.App.-Dallas 2008, pet. denied). A trial court is required to submit controlling questions to the jury if the issue is properly pleaded and supported by the evidence. See Tex.R. Civ. P. 278; see also Triplex Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995). A trial court has more discretion when submitting instructions to the jury questions than when submitting questions as part of the jury charge. McIntyre, 247 S.W.3d at 443. Rule 274 of the Texas Rules of Civil Procedure addresses objections and requests related to the jury charge. It provides as follows: A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. When the complaining party’s objection, or requested question, definition, or instruction is, in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable. No objection to one part of the charge may be adopted and applied to any other part of the charge by reference only. Tex.R. Civ. P. 274. To preserve error, the complaining party must specifically object, clearly identify the error, and explain the grounds for the objection. In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003). The primary purpose served by objections to a court charge is to apprise the trial court of error, thus affording the court the opportunity to correct the error. See Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987); Carr v. Weiss, 984 S.W.2d 753, 766 (Tex.App.-Amarillo 1999, pet. denied). Where a party’s objections are too general and too profuse it cannot be said that the trial court was fully cognizant of the grounds of the objection and deliberately chose to overrule it. See Monsanto Co. v. Milam, 494 S.W.2d 534, 536-37 (Tex.1973). Thus, where a party’s objection is obscured or concealed among voluminous, general, unfounded objections, it will not preserve error. See Tex.R. Civ. P. 274. Issue Four In issue four, appellants contend that the trial court erred in submitting jury question one and its accompanying instructions to the jury. Specifically, appellants argue that question one was improperly submitted because “it requires the jury to make a factual finding on a question of law, constitutes an impermissible comment on the weight of the evidence, and fails to address patent ambiguities in the May 14, 1999 Letter.” Further, appellants contend that the instructions accompanying jury question one “are unnecessary instructions on matters of law, and improperly ‘nudge’ the jury towards a finding in Plaintiffs favor.” In conjunction with this issue, appellants argue that the trial court erred in failing to include a question on ambiguity in the jury charge. At the charge conference, appellants objected to jury question number one and its instructions as follows: Your Honor, defendants object to this question because it’s an improper comment on the evidence. It tends to nudge the jury into a finding in favor of one party or the other. Furthermore, its not supported by the evidence. Its submission is improper. There is also no supporting Texas case law or cites in the pattern jury charge in support of this question. As far as the instructions, again its improper submissions. They mischarac-terize the facts and are unnecessary comments on the evidence. Again, they tend to nudge the jury in favor of the plaintiff, fail to help the jury understand the question. Again, the instructions fail to cite any Texas case with a pattern jury charge. The defendants submit their questions— proposed questions Number 1 and Number 2 and request that they be used instead of Celtic’s question Number 1, present proper questions and instructions to the jury, specifically question Number 1 and ask the jury to resolve the termination issue. And question Number 2 gives the jury the opportunity to determine the parties’ intent with the May 14th, '99 letter and to resolve numerous ambiguities or ambiguous terms contained in that letter. So, we submit that and request that the court give us these two questions. The trial court overruled the objections and denied appellants’ request to submit their proposed jury questions number one and two instead of Celtic’s proposed jury question one. First, we note that appellants failed to submit a jury question on their affirmative defense of ambiguity. See Tex.R. Civ. P. 278 (“Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment....”). Because the evidence presented at trial does not conclusively establish that the Letter Agreement was ambiguous, this complaint was not preserved for review. Tex.R. Civ. P. 279. Second, appellants did not object to jury question one on the basis that it required the jury to make a factual finding on a question of law. Even if appellants had preserved this complaint for our review, we find it without merit. While appellants did object to jury question one and its instructions on the basis that they constitute an impermissible comment on the evidence and nudge the jury in favor of one party, appellants’ objection does not clearly and distinctly identify the alleged defect or explain the grounds for the complaint. See Tex.R. Civ. P. 274. Appellants did not explain how jury question one and its instructions tend to favor one party. In addition, appellants did not object to the instructions at trial on the basis that they were “unnecessary instructions on matters of law,” nor does the objection attempt to explain how or why the instructions were unnecessary. See id. Appellants submitted a proposed jury question asking the jury to determine the termination issue. However, tendering a proposed jury question or instruction will not suffice to preserve error when a proper objection has not been made to the question or instruction submitted. See Kirkpatrick v. Mem’l Hosp. of Garland, 862 S.W.2d 762, 769 (Tex.App.Dallas 1993, writ denied); see also Carr v. Weiss, 984 S.W.2d at 766; Boorhem-Fields, Inc. v. Burlington N. R.R. Co., 884 S.W.2d 630, 535 (Tex.App.-Texarkana 1994, no writ); Schutz v. Southern Union Gas Co., 617 S.W.2d 299, 302 (Tex.Civ.App.-Tyler 1981, no writ). “A request for submission is required to preserve the right to complain of a trial court’s failure to submit a question; whereas, an objection is required to preserve a complaint as to a defective question.” Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162, 166 (Tex.App.-San Antonio 1993, writ denied) (citing Tex.R. Civ. P. 274, 278). Appellants did not specifically object to jury question one on the basis that it contained the “resulting termination” language, nor did they explain to the trial court why or how the “resulting termination” language rendered the question defective. See Tex.R. Civ. P. 274. We find that appellants’ objection to jury question one and its instructions was insufficient to preserve the errors appellants assert in issue four. See id. We overrule issue four. Issue Five Issue five addresses jury question three, which asked the jury, “[w]as CRMCs failure to comply with the Letter Agreement excused?” Jury question three included various instructions on waiver, Celtic’s failure to comply with a material obligation of the agreement, waiver of non-compliance, circumstances under which CRMC’s performance would be excused, and ratification. Appellants argue on appeal that the trial court erred in failing to submit with jury question three, CRMC’s proposed jury instructions on its affirmative defense of ratification and failure of condition precedent. During the charge conference, appellants objected to jury question number three as follows: Plaintiffs question Number 3, defendants object to this question. Plaintiffs proposed instructions omit defendants valid affirmative defenses or defense of condition precedent, unnecessary comments in the law. It will only confuse the jury. Again, it tends to nudge the jury in favor of the plaintiff. The instructions will not help the jury understand question Number 3. At this time we submit our proposed question Number 4 and request that it be used instead of plaintiffs Number 3. It clearly sets out proper elements for defendants affirmative defenses. Appellants proposed instructions on ratification and failure of condition precedent were submitted with its proposed jury question four, which asked, “[w]ere CRMCs obligations in connection with the May 14, 1999 Letter excused?” The trial court denied appellants’ request to have this proposed question and instructions submitted in place of jury question three. Significantly, the trial court submitted instructions on the defense of ratification. Appellants’ objection at trial did not specifically assert that the trial court’s submitted instructions on ratification were improper or incomplete. See Tex.R. Civ. P. 274; Garza v. Southland Corp., 836 S.W.2d 214, 218 (Tex.App.Houston [14th Dist.] 1992, no writ) (“A mere request to submit a different instruction or issue [other] than that proposed by the court does not sufficiently point out the specific objectionable matter and will not be considered an ‘objection’ for the purposes of Rule 274.”). Generally, a request for a different instruction is not a substitute for an objection and does not preserve error. See Hernandez v. Montgomery Ward & Co., 652 S.W.2d 923, 925 (Tex.1983), overruled on other grounds by Acord v. General Motors Corp., 669 S.W.2d 111 (Tex.1984); but see State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240-41 (Tex.1992) (holding a request can serve as an objection for preservation purposes if the trial court is made aware of the complaint and issues a ruling). Therefore, appellants waived any complaint regarding the courts submitted ratification instruction. Appellants also argue in conjunction with issue five that the trial court erred in refusing to submit their proposed instruction on the defense of condition precedent. Appellants specifically objected to jury question three on the basis that the question omitted instructions on CRMCs affirmative defense of condition precedent. In addition, appellants submitted to the trial court a set of proposed instructions on the affirmative defense of condition precedent. See Tex.R. Civ. P. 278. A jury instruction is proper when it assists the jury, accurately states the law, and is supported by the pleadings and evidence. McIntyre, 247 S.W.3d at 446. However, “[a]n incorrect jury instruction is grounds for reversal only if it likely caused the rendition of an improper verdict.” Id. at 444 (citing Tex.R.App. P. 44.1(a) and Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002)). Thus, when a trial court denies the request to include an instruction, the question on appeal is whether the proposed instruction was reasonably necessary to enable the jury to render a proper verdict. Id. at 446. CRMC tendered the following proposed instruction on its affirmative defense of condition precedent with its proposed jury question number four: Failure to comply by CRMC may be excused by Celtics failure to perform a condition precedent. A condition precedent may be either a condition to the formation of a [contract] or to an obligation to perform an existing agreement. Conditions may, therefore, relate either to the formation of contracts or to liability under them.’ Conditions precedent to an obligation to perform are acts or events that are to occur after the contract is made and that must occur before there is a right to immediate performance and before there can be a breach of contractual duty. Although no particular words are necessary to create a condition, terms such as ‘if,’ ‘provided that,’ and ‘on condition that,’ usually connote a condition rather [than] a covenant or promise. Absent such a limiting clause, whether a provision represents a condition or a promise must be gathered from the contract as a whole and from the intent of the parties. In this connection, the May 14, 1999 Letter contains the following language: If the tenant in Suite 301-A vacates the premises, Celtic Properties shall have at least [sic] sixty (60) days, from the date the vacation starts, to obtain financing and to enter into a new Master Lease that covers the entire medical office space, with [CRMC] subject to the same terms and conditions of Paragraph 2(c). You must determine whether the above language was a condition precedent to CRMCs obligation to pay higher rents to Celtic. Appellants argue that the Letter Agreement places two conditions on the parties entering into a master lease: (1) that Dr. Murphy obtain financing (to pay back the unamortized cost of the build-out); and (2) that Celtic enter into a new master lease with CRMC. We disagree. “A condition precedent is either a condition to the initial formation of a contract or a condition to an obligation to perform an existing agreement.” Samaras, 929 S.W.2d at 627. The only condition to the parties’ performance under the Letter Agreement was Dr. Kelley vacating suite 301A. The requirements that Celtic obtain financing, if necessary, to pay off the unamortized portion of the build-out costs, and that the parties enter into a new master lease were obligations or covenants to be performed under the Letter Agreement, not conditions to the parties obligation to perform under the Letter Agreement. See generally id. We conclude that CRMCs requested instruction on its affirmative defense of condition precedent was not reasonably necessary to enable the jury to properly answer jury question number three. We overrule issue five. ISSUE SIX In issue six, appellants complain that the trial court erred by submitting a defective question and instruction on Celtics negligence claim. The trial court submitted jury question number eight as follows: Did the negligence, if any, of the following persons proximately cause the damage, if any, to the premises? a. CRMC_ b. CHS_ c. CHS/CHS_ Appellants objected to this question in part on the basis that the jury question failed to include Celtics negligence, if any. Appellants tendered a proposed question submitting the negligence of all the parties including Celtic. Appellants also asked to submit a question with respect to comparative negligence, and tendered a proposed question to the court. Appellants pleaded the affirmative defense of contributory negligence. See Tex.R. Civ. P. 94. Appellants also pleaded that Celtic’s claims were “barred, in whole or in part, by the doctrine of proportionate responsibility and contribution.” At the charge conference, Celtic argued that the statute of limitations barred any claim of negligence against Celtic. The trial court denied appellants request for a question submitting Celtics negligence for the jury’s consideration. On appeal, Celtic contends that any claim for negligence against Celtic is barred by limitations and that there is no evidence to support a jury question on Celtics negligence. We disagree. The defense of limitations does not generally apply to defensive theories such as contributory negligence. See Villages of Greenbriar v. Torres, 874 S.W.2d 259, 266 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (“As a general rule, limitations statutes do not apply to defenses.”); see also Morriss-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313, 314 (1936). Therefore, limitations may not act as a bar to the submission of Celtic’s contributory negligence to the jury. Additionally, section 33.003 of the Texas Civil Practice & Remedies Code mandates that the trier of fact determine the percentage of responsibility by each claimant and defendant “causing or contributing to cause in any way the harm for which recovery of damages is sought,” where there is sufficient evidence in the record to support the submission. Tex. Civ. Prac. & Rem.Code Ann. § 33.003 (Vernon 2008). The trial court must submit questions, instructions, and definitions that are raised by the pleadings and the evidence. Tex.R. Civ. P. 278. However, the trial court is not obligated to submit a jury question unless there is more than a scintilla of evidence to support the submission of the issue to the jury. See Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992) (citing Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844, 846 (Tex.App.-Houston [1st Dist.] 1991, writ denied)). Multiple witnesses testified regarding the water intrusions that occurred on the Property. Both Celtic and CRMC’s experts attributed some of the mold damage on the Property to water intrusions. Celtic argues that each time it was notified of a water problem Celtic repaired the problem, including cleaning, drying, and spraying for mold and mildew. Celtic argues that no witnesses testified that it was negligent, breached a duty, or proximately caused the damage to the Property, therefore, appellants presented no evidence that Celtic was negligent in maintaining the building. Dr. Murphy testified that it was Celtic’s responsibility to take care of issues with the roof and the structure of the building under the terms of the lease agreement. Celtic’s expert witness, Daniel Bridge, a project manager with Rimkus Consulting Group, testified regarding a mold assessment for suite 301A that he performed in July 2006. Bridge concluded the following moisture sources contributed to the mold damage in suite 301A: a leak in the plumbing supply line to the water heater, a toilet overflow in the north restroom, water condensation on HVAC components, photo development solution leaks in the dark room, and an active leak in the fire water supply pipe connection. Bridge attributed a substantial portion of the mold damage in suite 301A to the water heater rupture. In July 2007, following mold assessment and remediation in both suites by Terracon Consulting Engineers (“Ter-racon”), Dr. Murphy asked Bridge to perform an assessment of suite 301B, just as he had previously done in suite 301A. Bridge identified mold remaining in suite 301B that he believed was the result of plumbing leaks, windblown rain, and a water heater leak. CRMC’s expert witness, Henry Hermis testified regarding his May 2007 evaluation of the Property and the “different sources of moisture” that caused the mold damage to the Property. Hermis testified that water from adjacent buildings drains toward the Property and collects alongside the building. Hermis observed “a lot of mold damage to the building” and recalled that he had been told there had been flooding in the building caused by both rising water and a ruptured water heater. Hermis stated that the building is “very low on the site” and that on occasion water gets into the building. Hermis noted that he was aware of invoices dating back to 1996 that indicate water had been extracted from suites 301A and 301B. Hermis noted deposition testimony by James Kelly, wherein Kelly referenced water seeping into the building through the slab. Her-mis also relied on the deposition testimony of Dr. Spooner wherein Dr. Spooner discussed incidents of flooding in 2003 and 2004. Hermis testified that “rising water [and] flooding from the surrounding areas or outside the building” was a substantial source of moisture. Hermis criticized Bridge’s opinion on the cause of the mold damage in suite 301A because Bridge failed to “mention anything about rising water” from outside the building. Hermis testified that he found mold in suite 301B behind the base trim and under the floor covering. Hermis discussed evidence of vapor emissions through the slab. He relied on Terracoris engineering study, which included Terracoris floor slab and mechanical assessment of the Property. According to Hermis, Terracoris report indicated “high vapor transmission through the slab” of the Property, which “can cause the vinyl flooring to delami-nate,” and “can cause mold to grow underneath the floor[.]” Hermis acknowledged the water heater rupture in suite 301A, roof leaks, an air conditioner leak, and some other isolated leaks. Hermis attributed the mold damage in suite 301A to various sources of moisture, including “flooding conditions from the outside.” Considering Celtic’s admission at trial that it was responsible for any s