Enterprise Financial Group, Inc. (EFG) sells consumer-protection products and Santander Consumer USA Inc. makes subprime car loans. They collaborated on a guaranteed asset protection (GAP) program, covering the gap between a car's insurance payout and the loan balance, under a Vendor Services Agreement (VSA). EFG administered and underwrote the GAP policies, holding part of the dealer price (the "Company Cost") in reserve to pay claims, while Santander sold the policies as loan add-ons. The VSA let EFG change the Company Cost on 120 days' notice, subject to Santander's good-faith consent, and required Santander to use commercially reasonable efforts to generate sales, give weekly sales reports including cancellations, and notify EFG of adverse business changes.¹ EFG says Santander blocked necessary price increases, failed to provide accurate loan-risk and cancellation data, and stopped selling the policies, causing a reserve deficit so large that EFG absorbed about $5 million in claims and refunds net of money it kept; EFG terminated in 2017.² Santander says EFG asked to raise prices in 2014, the parties agreed to an increase, EFG then terminated and refused to comply with its obligations, and that this cost Santander nearly $8.4 million.³

EFG sued Santander for breach of contract in June 2018 and Santander counterclaimed. After a six-day jury trial in 2022 in the 193rd District Court of Dallas County (Judge Bridgett N. Whitmore), the jury found Santander breached and awarded EFG $5 million, and the court entered judgment for EFG; Santander's post-judgment motions were denied by operation of law.¹ The Fifth Court of Appeals affirmed in a December 31, 2024 memorandum opinion (Partida-Kipness, J., joined by Goldstein and Miskel, JJ.), 2024 WL 5252016, then withdrew it and affirmed in a substituted memorandum opinion on rehearing (Miskel, J., joined by Goldstein, J.), 2025 WL 1712081 (Tex. App.⁠—Dallas June 18, 2025), and denied rehearing and en banc reconsideration. Santander petitioned for review on July 31, 2025, EFG responded September 25, 2025, and the Court ordered briefs on the merits on October 24, 2025; the briefs were filed November 24, 2025, January 29, 2026 and March 16, 2026. The court of appeals did not decide whether the trial court erred on the merits of the charge or whether any error was harmful, according to EFG.²

Petition for review from the Fifth Court of Appeals, which affirmed a judgment on a jury verdict for $5 million in a breach-of-contract case. The Court ordered merits briefing on October 24, 2025, which is complete, but has not yet granted the petition.

1. Whether a party preserves objection to the trial court's failure to submit questions and instructions when it tenders them and the court marks them "Refused" and states error is preserved, or must also later object. 2. Whether a party preserves objection to submission of a legally invalid damages theory by objecting to the theory, or must also argue the question was an improper amalgamation of damages. 3. Whether legally sufficient evidence supports a damages award that (a) relies on breach of an unenforceable duty to negotiate under Dallas/Fort Worth International Airport Board v. Vizant Technologies, LLC, (b) is consequential damages the contract forecloses, (c) measures expectancy damages on hypothetical bargains contrary to Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., and (d) lacks expert causation testimony as Mack Trucks, Inc. v. Tamez requires.¹ EFG answers that Santander did not preserve its breach and waiver charge complaints, did not preserve its damages-charge complaint, any damages error was harmless because the jury awarded only direct out-of-pocket loss, and the Court should decline to review the fact-specific sufficiency points.²

Petitioner (Santander Consumer USA Inc.): Under the rules and this Court's guidance, a party preserves charge error by tendering instructions and questions that the trial court expressly refuses, and Santander did so for its breach instructions limiting EFG to legally valid theories and for its waiver question; the court also assured the parties the charge errors were preserved. Rule 276 and the presumption of harm apply. It preserved error in the submission of a legally invalid damages theory by objecting to the theory at every stage. On sufficiency, EFG's damages rest on an unenforceable agreement to negotiate, consequential damages foreclosed by the contract, lost profits on hypothetical bargains, and no expert testimony on causation.¹

Respondent (Enterprise Financial Group, Inc.): Under settled law Santander preserved no charge error. A pretrial proposed charge alone does not alert the court to a party's complaints, and a global "refusal" written on the first page of a full proposed charge, with no discussion of specific questions at trial or the charge conference, is not a ruling on any complaint; the court's remark that its approach "protects your record" did not relieve Santander of its duty. Santander did not preserve a form objection to the broad-form damages question, which separate blanks for direct damages and lost profits could have cured, and it waived its no-evidence objection by not briefing it in the court of appeals. Any error was harmless because the jury awarded EFG's exact direct, out-of-pocket loss of $5 million, and the record shows Santander's breaches caused the damages. Alternatively, if error was preserved and harmful, the Court should remand to the court of appeals.²

Santander argues the case presents questions of law important to the state's jurisprudence about the preservation and harmfulness of charge error and proof of damages, and asks the Court to reaffirm that a party preserves error when the trial court refuses a tendered instruction or question.¹ EFG responds that the holdings below follow settled preservation law and that the sufficiency points are fact-specific and not developed below.²

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