contract (as the jury did here) unless instructed that they must decide who committed the first material breach.” Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004) (second emphasis added). The supreme court explained in Mustang Pipeline Co. that charge problems in these breach-of-contract cases may be avoided by a disjunctive submission of the breach-of-contract question (whether plaintiff or defendant failed to comply with the parties’ agreement) accompanied by a conditional instruction (that applies if the jury determines both parties breached), directing the jury to decide who (plaintiff or defendant) committed the first material breach. Id.; see also Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business PJC 101.2 (2012) (<HOLDING>); see also Berg v. Wilson, 353 S.W.3d 166,
recognizing this method of submission holding it is within the trial courts discretion to choose on a casebycase basis the method although expressly rejecting the reserved jurisdiction method recognizing this rule recognizing this presumption recognizing offset method