Opinion by:
This appeal arises from a dispute between Dr. Peter Tarbox and Dr. Robert Lowry regarding a neurology practice in which they shared an ownership interest. Appellee Dr. Tarbox brought suit against appellants Dr. Lowry, Neurology and Neurophysiology Associates, P.A. (NNPA), JCMLR, P.A., and Dr. Lynnell Lowry, alleging several causes of action. The jury found in favor of Dr. Tarbox and awarded
Background
In 2000, Dr. Tarbox and Dr. Lowry entered a contract (“the Contract”) to become joint owners of NNPA, a neurology medical practice. In 2004, the doctors accepted another partner, Dr. Yanko Yan-kov. At that time, the three partners created bylaws and signed a Stock Redеmption Agreement. Dr. Lowry was the managing partner of NNPA as majority shareholder. Alamo Healthcare Systems (Alamo Healthcare), a company owned by Dr. Lowry, began serving as NNPA’s management company in 2004, with Dr. Tarbox’s and Dr. Yankov’s approval.
Dr. Yankov left the practice in 2010. In December 2010, Dr. Tarbox terminated his relationship with NNPA and sued appellants, asserting claims for: breach of contract; breach of the Stock Redemption Agreement; shareholder oppression and breach of the fiduciary duty owed to a minority owner; fraud and negligent misrepresentation; fraudulent transfer; tor-tious interference with the contracts between Dr. Tarbox and NNPA; and civil conspiracy.
Dr. Tarbox alleged he discovered in 2009 that Dr. Lowry directed a billing scheme which violated the contractual terms for Dr. Tarbox’s compensation. According to Dr. Tarbox, when the three doctors began the partnership, they intended to grow NNPA’s practice. In order to accomplish that growth, the doctors anticipated adding additional neurologists and physician assistants to the practice on a contract basis. According to Dr. Tarbox, the Contract provided that when NNPA contracted with the additional neurologists and physician assistants, Dr. Tarbox would be compensated for the revenue generated through the contracted employees’ practices. Dr. Tarbox additionally alleged he discovered Dr. Lowry had directed that the contracted employees be designated as employees of JCMLR, which is a separate entity owned solely by Dr. Lowry. Because of that designation, only Dr. Lowry profited from the revenue generated by those employees.
Dr. Tarbox also alleged Alamo Healthcare billed insurance carriers for the services of the contracted physicians improperly by'using Dr. Tarbox’s license prior to the contracted physicians being credentialed with the carriers or licensed to practice medicine in Texas. Dr. Tarbox alleged that when this billing scheme occurred, he did not receive compensation for the use of his license. Dr. Tarbox alleged he should have received 33 1/3% of the gross receipts for the fees generated under his license, as stated in the Contract. Appellants responded that Dr. Tarbox’s compensation under the Contract was based only upon revenue generated by services he personally performed.
Following a trial on the merits, the jury returned a verdict in favor of Dr. Tarbox and awarded both damages and exemplary damages.
This appeal followed.
Analysis
Sufficiency of the Evidence
Standard of Review
“When a party attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden
When reviewing for factual sufficiency, we consider and weigh all the evidence, not just that supporting the finding. See Golden Eagle Archery, Inc. v. Jackson,
Application
The Contract: The Payment of Revenues Agreement
In issue one, appellants contend the evidence is legally and factually insufficient to support the jury’s finding, in response to Question No. 1 that the parties agreed Dr. Tarbox was entitled to payment of 33 1/3% of the revenues collected under his medical license-.
Existence of the Payment of Revenues Agreement
Question No. 1 of the jury charge asked the jury whether Dr, Tarbox and NNPA agreed that Dr. Tarbox “was entitled to thirty-three and one-third percent (33 1/3%). of the gross receipts for patient fees collected .under his medicаl license from activities, performed within the clinic setting.” The jury answered: “Yes.” -Appellants argue the jury’s answer ignored Dr. Lowry’s testimony that the agreement alleged by Dr. Tarbox did not exist and that doctors were not paid for patients they did not see.
The Contract admitted into evidence states Dr. Tarbox
Dr. Tarbox testified the provision “generated through [his] license” required that
In contrast, Dr. Lowry testified NNPA’s general practice of compensation is that each doctor, is paid a percentage of the revenues generated from the patients treated by that doctor, regardless of whose license the treatment was billed under. Dr. Lowry testified that Dr. Tarbox was “owed 33 percent under—is billed under his license, and NNPA would get sixty-seven percent.” Specifically, Dr. Lowry testified that “Dr. Tarbox only got paid for the patients—the one third for the patients he saw,” and was not paid for the patients seen by other doctors but billed under his license. Dr. Lowry testified that the provision “from activities performed within the clinic setting” meant that Dr. Tarbox was to be paid only for patients treated by him in the clinic, excluding revenue generated for patients treated by other doctors in the clinic.
Considering the evidence in the light most favorable to the verdict, we conclude a reasonable factfinder could have found the evidence sufficient to support the existence of an agreement between the parties that Dr. Tarbox would be compensated based upon all revenue collected under his license, including that generated by other doctors. Although Dr. Tarbox and Dr; Lowry presented conflicting testimony, the Contract together with Dr. Tarbox’s testimony is sufficient to provide a reasonable basis for the jury’s finding that the parties reached an agreement. This evidence presents more than a mere scintilla to support the jury’s finding. Moreover, appellants have not demonstrated “no evidence sup? ports the adverse finding.” Additionally, upon considering and weighing all of the evidence in the record, including Dr. Low-ry’s testimony directly contradicting that of Dr. Tarbox, we conclude the verdict is not so contrary to the overwhelming weight of the evidence.as to be clearly wrong and unjust. Therefore, we conclude the evidence is bоth legally and factually sufficient to support the jury’s answer to Question . No. 1 that the parties agreed to the payment of revenues as described by Dr. Tarbox.
Issue one is overruled.
Breach of Contract Damages
In issue three, appellants repeat their argument that the evidence did 'not support a finding that a payment of revenues agreement existed. Appellants reason that because the evidence did not support the jury’s finding the agreement existed in response to Question No. 1, the evidence also does not support the jury’s answer with regard to damages in Question No. 3.
Question No. 3 asked the jury to assess damages resulting from NNPA’s breach of contract, specifically its failure to pay Dr. Tarbox thirty-three and one-third percent of gross receipts collected under his license. The question contained three sub-parts: (1) “Thirty-three and one-third percent (33 1/3%) of the gross receipts for patient fees generated under Peter A. Tar-box, M.D.’s medical license for patients
Lizbeth Martinez, the bookkeeper for NNPA and all of Dr. Lowry’s personally-owned entities, testified regarding the revenues generated under Question No. 3’s subparts and the amounts Dr. Tarbox would have been paid under each subpart. Ms. Martinez testified Dr. Tarbox was not paid thirty-three and one-third percent of revenues generated through his license for patients he treated personally in the amount of $20,997 or for services conducted by Dr. Lobar and Dr. Frias under Dr. Tarbox’s license. Ms. Martinez also testified Dr. Tarbox was not paid thirty-three and one-third percent of revenue for services rendered after December 23, 2010. Ms. Martinez’s testimony corresponds with the damages awarded by the jury in Question No. 3 for breach of contract.
Appellants argue that Dr. Lowry testified contrary to each of the three sub-parts of Question No. 3, and, because of that testimony, the evidence supporting the jury’s damage award is legally and factually insufficient. However, the mere presentation of evidence contrary to the jury verdict does not provide a valid basis to challenge the legal sufficiency of the evidence to support a jury verdict. See Danet v. Bhan,
Considering this evidenсe in the light most favorable to the challenged finding, we conclude a reasonable factfinder could have found the evidence sufficient to support the jury’s finding of damages awarded for breach of contract. Further, despite Dr. Lowry’s testimony disputing the theory under which the damages were awarded, the evidence presented by Dr. Tarbox through Ms. Martinez’s testimony is not so weak as to render the jury’s verdict clearly wrong and manifestly unjust. Accordingly, the evidence was factually sufficient to support the jury’s finding of damages for breach of contract.
Issue three is overruled.
The Stock Redemption Agreement
In issue four, appellants contend the evidence is legally and factually insufficient to support the jury’s finding to Question No. 4 that NNPA failed to comply with the Stock Redemption Agreement.
Preservation
Following a jury trial, a complaint (1) that the evidence was not factually sufficient to support a jury’s finding or (2) that a jury’s finding was against the great weight and preponderance of the evidence must be raised in a motion for new trial or it is waived. See Tex. R. Civ. P. 324(b); Cecil v. Smith,
Sufficiency Challenges Waived
Appellants specifically argue that for the jury to have found NNPA failed to comply with the Stock Redemption Agreement, the jury must have improperly ignored evidence that conclusively established Dr. Tarbox failed to satisfy a required condition contained in the Stock Redemption Agreement, which was necessary to invoke his entitlement to a buyout.
Appellants filed both a motion to disregard the jury findings and a motion for new trial; In their motion to disregard, appellants requested that the trial court disregard the jury findings on Question No. 4 because “[t]here is no evidence of damages and legally and factually insufficient evidence and the finding of damages should be disregarded because Defendants were not allowed to put into evidence an offer that was made pursuant to the Stock Redemption Agreement.” In their motion for new trial, appellants moved for new trial only on the “Breach of Contract-Stock Redemption Agreement” cause of action. Appellants specifically asserted “there is legally and factually insufficient evidence of any damages, -to support any award of damages.... ”
To preserve their legal and factual sufficiency challenges regarding the jury’s finding that NNPA failed' to comply with the Stock Redemption Agreement, appellants were required to raise their points by an appropriate procedural step—such as in their motion to disregard the jury findings or motion for new trial—but they did not do so. See Aero Energy,
Issue four is overruled.
Breach of Fiduciary Duty
In issue seven, appellants contend the evidence is legally and factually insufficient to support the jury’s finding in Question No. 6 that Dr. Lowry failed to comply with his fiduciary duty to NNPA. Question No. 6 asked the jury: “Did Robert Lowry, M.D. fail to comply with his fiduciary duty to NNPA?” The jury was instructed:
As a majority shareholder, director, or officer of NNPA, Robert Lowry, M.D. owed NNPA a fiduciary duty.
To prove that Robert Lowry, M.D. failed to comply with his duty to NNPA, Peter Tarbox, M.D. must show—
a. the transactions in question were not fair, and equitable to NNPA; and
b. Robert Lowry, M.D. did not make reasonable usé of the confidence that NNPA placed in him; and
e. Robert Lowry, M.D. failed to act in the utmost good faith or exercise the most scrupulous honesty toward NNPA; and ■ ■
d. Robert Lowry, M.D. placed his own interests beforе NNPA, used the advantage of his position to gain a benefit for himself at the expense of NNPA, or placed himself in any position where his self-interest might conflict with his obligations as a fiduciary; and
e. Robert Lowry, M.D. failed,to fully and fairly disclosed [(sic)] all important information to NNPA concerning the transactions.
The jury answered “yes.”
’ In their -briefs, appellants and Dr. Tar-box agree the breach-of-fiduciary-duty cause of action focuses on two transactions: an outside real estate investment involving Dr. Lowry and Dr. Yankov and NNPA’s payment of management fees to Alamo Healthcare.
Outside Real Estate Investment
In 2007, Dr. Lowry and Dr. Yankov engaged in a personal real estate venture, for which the real estate loan was carried in Dr. Yankov’s name. The venture failed in 2009. To pay off the real estate loan and avoid foreclosure on the subject property, approximately $130,000 in cash was withdrawn from NNPA’s .business account. This transaction was carried in NNPA’s accounting books as a loan receivable in two amounts of $65,810 owed' individually by each Dr. Lowry and Dr. Yankov.
Dr. Tarbox testified he.did, not authorize the removal of funds from NNPA’s business account to pay,off the real estate loan, and he did not approve of the taking of the loan receivable. Dr. Tar-box testified he did not learn of the transaction until 2010.
Dr. Lowry testified that when the real estate loan went into default, he went to the bank with Dr. Yankov and agreed to sign on the loan as a guarantor because he felt bad for getting Dr. Yankov into the bad investment. Dr. Lowry testified he was not aware that Dr. Yankov directed that the $130,000 be removed from NNPA’s account to pay off the bank loan, and he was not aware this money had been removed until 2010, at approximately the same time Dr. Tarbox beéame aware of the transaction. Filially, Dr. Lowry testified he never intended to repay any money to NNPA related to the real estate investment because “[i]t was Dr.' Yankov’s loan."
Dr. Yankov testified he did not direct Ms. Martinez,. NNPA’s bookkeeper, to withdraw $130,000 from NNPA’s account to pay the real estate, note. Dr. Yankov testified he did not have the corporate authority to direct Ms. Martinez to pay anything or withdraw any money—only Dr. Lowry held that authority. Dr. Yankov further testified that in 2010 he learned money was being taken from his salary to pay the loan from NNPA. According to Dr. Yankov, he did not give authorization to make this reduction from his salary. Dr. Yankov testified that, prior to this discovery, when he questioned Dr. Lowry about not receiving the salary amount he expected, Dr. Lowry responded the practice did not make enough money to pay Dr. Yan-kov’s full salary.
. Ms. Martinez testified she accompanied Dr. Lowry and Dr. Yankov to Compass Bank to discuss paying off or re-financing the real estate loan. She could not remember the details of the conversation or the result, nor could she remember who directed
Considering the evidence in the light most favorable to the' challenged finding, we conclude a reasonable factfinder could have found the evidence sufficient to support the jury’s finding that Dr. Lowry breached his fiduciary duty to NNPA with regard to the handling of the personal real estate investment. Appellants have not shown that no evidence supports the jury’s finding. Rather, from the еvidence presented, the jury could have concluded Dr. Lowry did not make reasonable use of the confidence NNPA placed in him, failed to act in utmost good faith, placed his own interest before that of NNPA, used the advantage of his position to gain a personal benefit at the expense of NNPA, and did not disclose all important information to NNPA or Dr. Tarbox. Therefore, the jury’s finding is supported by more than a scintilla of evidence.
The testimony and evidence presented by the parties regarding Dr. Low-ry’s and Dr. Yankov’s personal real estate investment was conflicting, and each of the four witnesses who testified on the topic presented a different recollection of how the transaction was handled and who authorized the withdrawal of funds from NNPA to pay off the real estate loan. We defer to the jury’s role as factfinder, and we presume the jury resolved all conflicts of- credibility in favor of its. verdict and that-the jury’s finding is consistent with its determination of. the credibility of the witnesses. See City of Keller,
Accordingly, the evidence was factually sufficient to support the jury’s finding that Dr. Lowry failed to comply with his fiduciary duty with regard to the personal real estate investment.
Management Fees
Appellants assert: “[tjhe testimony is uncontroverted that Lowry was indeed managing the practice. The testimony from .the majority of interest holders was such and. all testified that such-fees,had been paid for years. Tarbox testified that he originally agreed to the management company arrangement.”
Appellants provide no citations or further argument in support of their .contention regarding the payment of management fees. See Tex, R. App, P. 38.1 (requiring an appellate brief to provide the court with a discussion of the facts and the authorities relied upon). Because appellants’ briefing on this issue provides no argument or analysis supporting their contention, the brief provides insufficient
Therefore, we conclude appellants waived their argument that the evidence is insufficient to support the jury’s finding that Dr. Lowry failed tо comply with his fiduciary duty with regard to the management fees paid to Alamo Healthcare.
. Issue seven is overruled.
Fraud
In issue nine, appellants contend the evidence is legally and factually insufficient to support the jury’s finding in Question No. 10 that Dr. Lowry committed fraud against Dr. Tarbox. Question No. 10 asked the jury to determine whether “Robert Lowry, M.D. commit[ted] fraud against Peter A. Tarbox, M.D.?” The jdry was then instructed on two theories of fraud: material misrepresentation and failure to disclose a material fact. The jury answered the question, “[y]es.”
Although appellants present this issue as a challenge to the legal and factual sufficiency of the evidence, in their brief, appellants argue only that there is no evidence to support the jury’s finding on the material-misrepresentation theory of fraud. Appellants did not object to the jury charge submission in broad form; nor do appellants challenge it in broad form on appeal. Therefore, we limit our analysis to the challenge-presented—legal sufficiency of the evidence supporting the material misrepresentation fraud theory.
A claim for fraud “requires a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.” See Zorrilla v. Aypco Constr. II, LLC,
Dr. Tarbox testified Dr, Lowry offered him ownership in NNPA, in 2000, for $70,000.00 with the agreement that they would hire other neurologists and grow the practice for retirement. Dr. Lowry and Dr. Tarbox accepted Dr. Yankov as another partner in 2004, and shortly thereafter, Dr. Lowry proposed that Alamo Healthcare assist with sharing overhead and act as a managing agent for NNPA. Both Dr. Tar-box and Dr. Yankov agreed to the arrangement, but no formal written agreement was created-.
Dr. Tarbox testified that in 2005, Alamo Healthcare began exerting more management control over NNPA than that to which he originally agreed. Dr. Tarbox voiced his objections to Alamo Healthcare’s control with Dr. Lowry in person, letters, and emails. Dr. Tarbox further testified that in 2008, Dr. Lowry hired neurologists for JC.MLR, Dr. Lowry’s separate, wholly-owned entity, rather than for NNPA as the doctors had previously agreed. When Dr. Tarbox discovered these neurologists were contracted , with JCMLR, he confronted Dr. Lowry. According to Dr. Tarbox, Dr. Lowry stated the other neurologists were contracted
Dr. Tarbox testified that Dr. Lowry’s giving Alamo Healthcare increased control over NNPA’s daily operations, as. well as the hiring of neurologists under JMCLR, showed Dr. Lowry never intended to grow NNPA with Dr. Tarbox and Dr. Yankov, but instead intended to increase his own personal control and profit individually. In July of 2009, Dr. Lowry allowed NNPA’s corporate charter with the Texas Secretary of State to lapse.
Dr. Tarbox testified that in late 2009, Dr. Lowry promised to hire Dr. Brahin as a neurologist for NNPA. Dr. Lowry specifically stated that Dr. Brahin would be contracted with NNPA to help with Dr. Yankov and Dr. Tarbox’s schedules; Based on those representations, Dr. Tarbox agreed to hire Dr. Brahin. According to Dr. Tarbox, Dr. Lowry contracted Dr. Brahin with JCMLR. Dr. Tarbox further testified that in September 2010, Dr. Low-ry proposed restructuring NNPA under Alamo Healthcare and requested Dr. Tar-box and Dr. Yankov’s approval. According to Dr. Tarbox, Dr. Lowry had already completed the proposed restructure despite lack of approval from the other partners.
Considering the evidence in a light most favorable to the jury’s finding, we conclude a reasonable factfinder could have found the evidence sufficient to support a finding that Dr. Lowry made known, false material misrepresentations with the intention that Dr. Tarbox would act upon them; Dr. Tarbox was injured based upon this reb-anee; and Dr. Lowry had no intention of following through with his promise to grow NNPA as a group practice. The jury’s finding that Dr. Lowry committed fraud against Dr. Tarbox under the material misrepresentation theory is supported by more than a scintilla of evidence.
Accordingly, the evidence was legally sufficient to support the jury’s answer to Question No. 10 with regard to the theory that Dr. Lowry committed fraud by making a material misrepresentation.
Issue nine is overruled.
Damages for Fraud
In issue ten, appellants contend the record does not' support the jury’s finding of damages for fraud. Question No. 11 of the jury charge and the jury’s answer appears as follows:
“What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Peter A. Tarbox, M.D. for his damages, if any, that resulted from such fraud:
Consider the following elements of damages, if any, and none other.
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a. Management fees paid by' JCMLR, P.A.
ANSWER: $0
b. Value of Peter Tarbox, M.D.’s interest in NNPA.
ANSWER: $75,076
-c. Value of Peter Tarbox, M.D.’s interest in NNPA and JCMLR, P.A. as a ■ single entity less the value received by Peter Tarbox, M.D. *
ANSWER: $141,410
It appears appellants confuse Question No. 7, which requests a finding of damages on the fiduciary duty cause of action, with Question No. 11, which requests a finding of damages on the fraud cause of action. Question No. 7 states, “What was the amount of Robert Lowry, M.D.'s profit in each of the following transactions?” and the forms of damages were presented as “NNPA’s funds advanced for the real estate transaction at issue” and “Management fees paid by NNPA.” Thus, appellants challenge the sufficiency of the evidence to support the jury’s assessment of damages in Question No. 11 because it allows a measure of damages not applicable to fraud. Appellants’ argument, however, actually tracks the language of Question No. 7, the fiduciary duty damages question.
We note that appellants argued to the trial court in their objection to the jury charge, JNOV motion, arid motion for new trial that evidence is legally and ‘factually insufficient to support, any damage suffered by Dr.; Tarbox individually in any of the three forms of fraud damages presented to the jury. Accordingly, we construe appellants’ argument on appeal to be the same argument as that presented to the trial court.
Appellants purport to challenge the legal and factual sufficiency of the evidence to support the jury’s finding of fraud damages. However, appellants argue only that there is no evidence to support the jury’s finding. For this reason, any intended factual-sufficiency challenge is inadequately briefed and will not be addressed. See Tex. R. App. P. 38.1.
To support an award of damages for fraud, Dr. Tarbox presented testimony from expert witness, William Barnard. Mr. Barnard testified with respect to the valuation of Dr. Tarbox’s interest in NNPA when the partnership was formed and the reduction in value to Dr. Tarbox’s shareholder interest in NNPA caused by the hiring of neurologists by JCMLR, rather than NNPA. Mr. Barnard also testified regarding the revenue stream that would hаve benefited NNPA,. rather than JCMLR. Mr. Barnard further testified regarding a hypothetical valuation of an entity- comprised of the combined businesses of NNPA and JCMLR, as though Dr. Lowry had not formed JCMLR. Finally, Mr. Barnard testified to the valuation of Dr. Tarbox’s shareholder interest in this hypothetical entity. Mr. Barnard did not opine upon the precise amount of damages awarded. Mr. Barnard based his opinion on financial records of NNPA and JCMLR received from Dr. Lowry.
Considering the evidence in a light most favorable to the jury’s finding, we conclude a reasonable factfinder could have found the evidence sufficient to support the jury’s damage award. Mr. Barnard’s testimony and the. corresponding evidence constitutes more than a scintilla of evidence
Issue ten is overruled.
Jury Instructions
Standard of Review
A trial court has wide discretion in submitting jury instructions. In re V.L.K.,
Application
Business Judgment Rule Instruction
In issue six, appellants contend the trial court erred by denying their request to include a jury instruction on the business judgment rule in Question No. 6 of the jury charge. Appellants contend the charge was improper and the omission probably caused the rendition of an improper verdict.
Appellants requested that the trial court instruct the jury:
Shareholders, officers, and directors owe a fiduciary duty to the corporation in their directorial actions, and this'duty includes- the dedication of their uncor* rupted business judgmеnt for the sole benefit of the corporation,
following the question, “Did Robert Low-ry, M.D. fail to comply with his fiduciary duty to NNPA?” The trial court refused this specific instruction, and instead, included an instruction stating, “As a majority shareholder, director, or officer of NNPA, Robert Lowry, M.D. owed NNPA a fiduciary duty.”
Corporate officers owe a fiduciary duty to the corporation, which “ ‘includes the dedication of [their] uncorrupted business judgment for the sole benefit of the corporation.’ ” Ritchie v. Rupe,
The business judgment. rule generally, protects corporate officers and directors, who owe fiduciary duties to the
Without addressing whether the trial court erred by failing to include appellants’ requested instruction, we note appellants fail to demonstrate harmful error. Appellants do not show the omission of the requested instruction probably caused the rendition of an improper verdict or prevented them from presenting their case on appeal.
The jury was instructed that “[t]o prove that Robert Lowry, M.D. failed to comply with his duty to NNPA, Peter Tarbox, M.D. must show the transactions in question were not fair or equitable to NNPA;” and Dr. Lowry “did not make reasonable use of the confidence that NNPA placed in him;” “failed to act in the utmost good faith or exercise the most scrupulous honesty toward NNPA;” “placed his own interests before NNPA, used the advantage of his position to gain a benefit for himself at the expense of NNPA, or placed himself in any position where his self-interest might conflict with his obligations as a fiduciary;” and “failed to fully and fairly disclose[ ] all important information to NNPA concerning the transactions.” The jury answered “yes” to the ultimate question “[d]id Robert Lowry M.D. fail to comply with his fiduciary duty to NNPA?”, thus necessarily finding Dr. Tarbox proved the underlying requisites.
In making these findings, the jury necessarily found Dr. Lowry failed to act within the honest exercise of his business judgment and, additionally, acted neither diligently nor prudently in managing NNPA’s affairs. Accordingly, the trial court’s exclusion of the requested instruction that Dr. Lowry’s fiduciary “duty includes the dedication of [his] uncorrupted business judgment for the sole benefit of the corporation” did not probably cause the rendition of an improper verdict or prevent appellants from properly presenting them case on appeal.
Issue six is overruled.
Submission of Jury Question No. 16
In issue thirteen, appellants contend the trial court erred by including Question No. 16 in the jury charge because “there is legally no evidence to support” the submission of the question. Appellants argue Question No. 16 “was sought for the purposes of seeking personal liability against the Lowrys for any judgment taken against NNPA because its corporate standing had been forfeited under the Tax Code.” Appellants additionally argue section 171.255 of the Texas Tax Code is inapplicable in this case and, therefore, it was error to submit the question to the jury because the debts resulting from Dr. Tarbox’s contracts were incurred before the forfeiture of corporate privileges. Question No. 16 asked the jury whether each Robert Lowry, M.D. or Lynnell Low-ry, M.D. was an officer or director of NNPA on December 23, 2010.
To preserve error in the jury charge, a party must make the trial court
In their objections to the jury charge appellants stated, with respect to Question No. 16: “The question is not material to any issue in this cause. As such, there in [sic] legally no evidence and factually insufficient evidence for the submission.” Although appellants raised the issues of legal and factual sufficiency in their objections to the jury charge, their reasoning was that the question was immaterial to any issue in the underlying action. On appeal, appellants present an entirely different argument, contending it was -error to submit the question because the debts from Dr. Tarbox’s contracts were incurred before forfeiture of corporate privileges.
Because appellants failed to present the same challenge on appeal as they did in their objections to the jury charge, the alleged error has been waived for appeal.
Issue thirteen is overruled.
Statutory Cap on Exemplary Damages
In issues twenty-two and twenty-five, appellants contend the trial court erred by failing to apply the statutory cap on exemplary damages awarded for both the fraud and breach of fiduciary duty causes of action. Appellants argue the award of exemplary damages in- the amount, of $523,000 awarded by the jury in Question No. 22 on $249,282 in economic damages for breaсh of -fiduciary duty and exemplary damages in the amount of $937,500 awarded by the jury in Question No. 24 on $216,486 in economic damages for fraud exceeds the statutory damage cap and should be reduced accordingly. In response, Dr. Tarbox contends 'the facts of this case fall within an exception to the statutory cap on exemplary damages.
Section 41.008 of the Texas Civil Practice and Remedies Code provides that:
Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of:
(1)(A) two times the amount of economic damages; plus
(B) an .amount equal to any noneco-nomic damages found by the jury, not to exceed $750,000; or
(2) $200,000.
Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b) (West 2015). The statutory cap does hot apply if the defendant intentionally or knowingly engaged in felonious conduct under criminal statutes expressly excluded from the cap under section 41.008(c). Id. § 41.008(c) (listing seventeen penal code provisions); McCullough v. Scarbrough, Medlin & Associates, Inc.,
Dr. Tarbox, however, did not assert these exemptions in the trial court or ask for any determination of their applicability. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(c); Signal Peak Enters. of Tex., Inc. v. Bettina Investments,
For the breach of fiduciary duty claim, the jury assessed economic damages of $249,282, but did not assess noneconomic damages. Therefore, under section 41.008(b), the exemplary damages cap for the breach of fiduciary duty is two times the economic damages, or $498,564. .The jury, however, assessed exemplary damages of $523,000 for the breach of fiduciary duty claim, which exceeded the statutory cap by $24,436.
For the fraud claim, the jury assessed economic damages of $216,486, but did not assess noneconomic damages. As a result, under section 41.008(b), the - exemplary damages cap.for the fraud claim is two times the economic damages or $432,972. The jury, however, assessed exemplary damages of $937,500, which exceeded the statutory cap by $504,528.
Accordingly, we conclude the. trial court erred by failing to apply the statutory cap on. exemplary damages. We sustain issues twenty-two and twenty-five, and we reform the trial court’s judgment to cap the exemplary damages award at $498,564 for the breach of fiduciary claim and $432,972 for the fraud claim. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b)(1).
Attorney’s Fees
In issue thirty, appellants contend the trial court erred by-awarding Dr. Tar-box attorneys fees because Dr. Tarbox did not segregate the attorney’s fees incurred in prosecuting his elaims for which attorney’s fees are recoverable from the fees incurred in prosecuting claims for which attorney’s fees are not recoverable. Appellants also argue the affidavits submitted by Dr. Tarbox in support of his request for attorney’s fees were not competent evidence and thus insufficient to support his request. Specifically, appellants argue the statements in the affidavits asserting the fees were not separable were conclusory.
It .is undisputed-.-Dr. Tarbox asserted claims for which he could recover attorney’s fees as well as claims for which he could not recover attorney’s fees. In support of his contention the incurred fees were inextricably intertwined and could not be segregated, Dr. Tarbox submitted affidavits from his two attorneys, Donald Kaiser and John Castillo. Kaiser and Cаstillo attested to and explained the fees incurred from the numerous interrelated causes of action, as well as the issues involved in the . lengthy litigation. The attorneys attested the. legal services related to all causes of action were intertwined and their fees could not be segregated due to the interrelated nature, of the causes of action and-issues involved. Further, Kaiser attested the legal services rendered would have been necessary even if Dr. Tarbox had not asserted the causes of action for which attorney’s fees are unrecoverable.
Appellants argue Kaiser’s and Castillo’s affidavits were not competent evidence because the affidavits contained conclusory statements., “A conclusory statement is one that does not provide the underlying facts to support the conclusion.” Rodriguez v. Wal-Mart Stores, Inc.,
Kaiser and Castillo both attested the facts and circumstances recited were based upon their personal knowledge. Each affiant provided underlying facts to suрport his attestation that the fees were not separable, Accordingly, Kaiser’s and Castillo’s affidavits were competent evidence to support Dr. Tarbox’s motion for attorney’s fees. See Tex. Commerce Bank, Nat. Assoc. v. New,
Segregation of Attorney’s Fees
Although attorney’s fees generally must be segregated, segregation is not required when the claims arise out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the, same facts. Buchanan v. O’Donnell,
Both Kaiser and Castillo attested the legal services rendered advanced both recoverable and unrecoverable causes of action and that the causes of action were inextricably intertwined. The attorneys’ affidavits support the trial court’s conclusion that the attorneys’ fees need not be segregated. See Tony Gullo Motors I, L.P.,
Issue thirty is overruled.
Inadequately Briefed Issues
An appellate brief must contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). Although we must construe briefing requirements liberally and reasonably, parties asserting error on appeal must put forth some spеcific argument and analysis showing the record and the law support their contentions. Gonzalez v. VATR Const. LLC,
Appellants’ brief does not provide any discussion of the evidence or law to support the general claims addressed below. The brief contains only conclusory statements, unsupported by legal citations or application of authority to the facts of this case. Because appellants’ brief contains only general statements of appellants’ position on the. issues addressed below, it does not present sufficient argument nor provide basis to support a conclusion the trial court erred in any way in relation to the -following issues. See Gonzalez,
Sufficiency Challenges
In the following issues, appellants challenge the sufficiency of the evidence supporting the jury’s findings: two, five, eight, eleven, twelve, fifteen, sixteen, eighteen, twenty-one, twenty-four, twenty-eight, and twenty-nine. Because appellants failed to provide arguments or analysis applying legal authority to the facts of this case in relation to these issues, we conclude appellants waived these issues based upon their failure to comply with Rule 38.1.
Issues two, five, eight, eleven, twelve, fifteen, sixteen, eighteen, twenty-one, twenty-four, twenty-eight, and twenty-nine are overruled.
Evidentiary Issues
In issue twenty-six and twenty-seven, appellаnts contend the trial court erred by improperly ruling on evidentiary issues. Appellants present only conclusory statements with no analysis or application of law to the facts of this case in support of their contentions. Therefore, we conclude appellants waived these issues based upon their failure to comply with Rule 38.1.
Issues twenty-six and twenty-seven are overruled.
Submission of Jury Questions
In issues fourteen, seventeen, nineteen, twenty, and twenty-three, appellants contend the trial court erred by including several questions in the jury charge. Because appellants’ briefing on these issues provides no argument or analysis supporting their contention or applying legal authority to" the facts of this case, appellants’ brief provides insufficient basis for us to analyze and determine these issues. Accordingly, we conclude appellants waived these issues based upon their failure to comply with Rule 38.1.
Issues fourteen, seventeen, nineteen, twenty, and twenty-three are overruled.
Conclusion
For the foregoing reasons, we reform the trial court’s judgment to cap the exemplary damage award at $498,564 for the breach of fiduciary claim and $432,972 for the fraud claim. We affirm the trial court’s judgment as reformed.
Notes
. Appellants did not plead or otherwise challenge the contract terms as ambiguous, nor do they advance this argument on appeal. Therefore, we will analyze this issue as presented—only for sufficiency of the evidence to support the jury's finding that the parties agreed Dr. Tarbox was entitled to payment of 33 1/3% of all revenues collected under his medical license.
. Dr. Tarbox testified the specific contract between himself and NNPA had been lost. However, his contract, and specifically the terms for his compensation, were identical to the contract between Dr. Yankov and NNPA. Dr. Yankov’s contract was admitted into evidence, and all parties testified to the contract terms by using and referring to Dr. Yankov’s contract. Appellants did not object to the use of Dr. Yankov’s contract-to establish the terms of Dr, Tarbox’s contract,
. It is undisputed that Dr. Tarbox was paid á different percentage of revenues generated through the' hospital setting. Those revenues are not relevant to this appeal.