Full opinion text
OPINION LOPEZ, Justice. Appellees, William R. Fields, Jr. and 0. Waymond Lightfoot, Jr., filed suit against appellants, Fred L. Baker, Frank Davila II, Rodolfo Davila, Trustee of the Rodolfo Davila Estate Trust (together, the Davilas), Lawrence F. Haass, J. Brian O’Connor, Kim I. Manning, J. Pat O’Connell, Brian O’Connor, B.F. Pitman III, and others, for breach of contract and other related tort theories. Fields’ trustee in bankruptcy, John Patrick Lowe, intervened in the case. Appellees’ theories of recovery concern a purported agreement with the appellants to purchase bank holding company stock from the appel-lees for which payment was not made. After a jury verdict, the trial court granted a judgment in favor of the appellees, from which appellants now bring an appeal raising 104 points of error. We affirm the trial court’s judgment in part, and reverse and render in part. BACKGROUND Appellants, appellees, and other individuals were investors in Crown Bancshares, Inc., a bank holding company (Crown Bancshares). Incorporated in June of 1985, Crown Banc-shares owned all the stock of Crown Bank, N.A (Crown Bank). The incorporating officers and directors were Bernard Austin and appellants, Frank Davila II, Lawrence F. Haass, and Brian O’Connor. The Federal Reserve approved Crown Bank’s application in August of 1985, and capital stock in Crown Bancshares was privately offered beginning in October of 1985. Beginning in February of 1986, the bank was capitalized through a series of loans to 28 purchasers of Crown Bancshares stock, including appellants and appellees, in the aggregate amount of $6,066,310.00, from First State Savings Association (First State). Fields purchased 10,000 shares of Crown Bancshares stock (at $10 per share), with $5,000.00 in cash and $95,000.00 borrowed from First State. With a two percent origination fee, Fields’ loan was in the amount of $96,900.00. Lightfoot purchased 30,000 shares of Crown Bancshares stock (at $10 per share), with $15,000.00 in cash and $285,-000.00 borrowed from First State. With the two percent origination fee, Lightfoot’s note to First State was for $290,700.00. The purchasers pledged their Crown Bancshares stock to First State as security for the loans. These agreements also contained cross-default provisions — a default by one borrower equaled a default by all borrowers. In the event of a default, First State could “declare the entire unpaid balance of principal and all earned interest on the Indebtedness immediately due and payable.” Each of the borrowers, except Lightfoot and Dr. Richard Rouse, also signed personal guaranty agreements. A series of agreements were concluded: a voting trust agreement, a stock repurchase agreement, an agreement for funding repurchases of Crown Bancshares, a repurchase agreement concerning the capital stock of Crown Bancshares, and an amendment to the voting trust agreement. Although these agreements were prepared in 1985 — 1985 is typed on various pages — they were all apparently signed in February of 1986. These agreements were signed by both the appellants and appellees. The purpose of the voting trust agreement was to maintain Crown Bancshares as a closely-held corporation. The organizers of the bank had determined that a voting trust agreement should be signed so that a majority of the subscribers of Crown Bancshares stock could maintain control over the direction and operation of the bank. Through the voting trust agreement, a majority of the shareholders subscribing to the agreement would control the vote at the shareholders’ meeting and elect the directors of Crown Bancshares which, in turn, owned and controlled Crown Bank. The stated purpose of the voting trust agreement was to “secure continuity and stability of policy in management, and to establish constructive administration of the business of the Company....” The voting trust agreement signed by the parties referred to them as “subscribers,” but the parties often used the term “Control Group” to describe themselves. All of the appellants (except Rodolfo Davila, individually) and appellees were members of the Control Group. Although it was originally intended that the trustee under the voting trust agreement was to have all the stock of Crown Banc-shares issued in his name as trustee, with the trustee then issuing voting trust certificates to the various shareholders to evidence their stock ownership, the stock of the holding company was not issued that way. No stock was tendered into the voting trust. Instead it was issued separately in the name of each subscriber. First State required that all such stock, upon the closing of the loan to purchase, be physically pledged to First State and that each subscriber sign an “irrevocable stock power” as to the stock and deliver it to First State at the time they signed the other loan documents. The voting trust agreement was signed only by members of the Control Group; neither Crown Bancshares nor First State were parties to the agreement. The subscribers to the voting trust agreement appointed Dwight L. Lieb — the largest Crown Bancshares stockholder — as the voting trustee. The voting trust agreement defined the powers and duties of the voting trustee. The agreement contained a “Grant of Irrevocable Proxy and Power of Attorney,” which reads as follows: In addition to all other rights and powers granted under this Agreement, during the term hereof each Subscriber by execution of this Agreement irrevocably names, constitutes and appoints Trustee (or successor Trustee) Ms true and lawful attorney and agent with full power of substitution, to vote all shares of stock deposited with Trustee by such Subscriber, subject to the requirements of Section 4 hereof, at any and all regular and special meetings of the Company’s shareholders whenever and wherever held during the term of this Agreement, or at any adjournment thereof, and hereby ratifies and confirms all that the said Attorney might do. DURING THE TERM HEREOF, THE PARTIES HERETO AGREE THAT THE PROXY HEREBY GRANTED IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE. An amendment to the agreement further provided: Any Trustee then serving shall have the power and authority to designate agents, and in such connection, to execute and deliver Powers of Attorney designating any person or group of persons to act in his full place and stead, to have and perform any and all powers, duties, acts and discretions as set forth in such written Power of Attorney to the fullest extent permitted by applicable law. Any person dealing with said Trustee shall be entitled to rely upon such Power of Attorney as fully authorizing the exercise of such powers, acts and discretions as therein set forth. (Emphasis added). The Control Group comprised nearly 75 percent ownersMp of Crown Bancshares. The voting trust subscribers selected the board of directors of Crown Bancshares. The directors of the holding company then elected the directors of Crown Bank who, in turn, selected a slate of officers for the bank. Most, if not all, of these individuals were members of the Control Group. Sometime after agreeing to participate in the bank’s formation, appellees decided to withdraw from the enterprise. During the trial of this case, Lightfoot testified that he first decided to sell his Crown Bancshares stock in the latter part of 1985 or early 1986. According to Lightfoot’s testimony, he approached the president of Crown Banc-shares, Brian O’Connor, and told him that, due to personal and business difficulties, he could no longer bear the financial cost of purchasing and paying for 30,000 shares of stock. O’Connor asked Lightfoot to wait because a sale by an incorporating bank director might impede final regulatory approval of the bank. When Lightfoot again raised the question of a stock repurchase, Lieb, the voting agreement trustee, said he would call a meeting of the board of directors of Crown Bancshares and convey Lightfoot’s need to sell the shares. The first indication of an agreement to repurchase Lightfoot’s stock is found in the minutes of a June 9, 1986 Crown Banc-shares Board of Directors meeting, wMch read in part as follows: Mr. [J. Brian] O’Connor informed the Board that Director O. Waymond Light-foot has offered 25,000 shares of Crown Bancshares stock for sale to the holding company as prescribed by the repurchase agreement. The Board waived the corporation’s right to purchase the stock and determined that it was in the best interest of the holding company to offer the stock to outside investors. A recommendation was made to the signatories of the Crown Bancshares, Inc. stock repurchase plan to waive their right to purchase the stock and make it available to new investors. On June 27th the Board met again. The minutes of the board meeting state that “O’Connor updated the board on the status of the proposed stock sale of O. Waymond Lightfoot. He indicated the shares would soon be ready to be offered for sale.” Fields also decided that he wanted to sell Ms stock. During March of 1987, Fields indicated to Lieb that he was prepared to sell Ms stock in Crown Bancshares for $10 a share. The first written indication of an agreement to purchase Fields’ shares is found in a April 27,1987 letter from Fields to Lieb. Fields’ letter reads in part as follows: This letter confirms our agreement whereby you, or your assignee, purchased 9,000 Crown Bancshares from me on Monday, April 27, 1987, at $10.00 per share. As mentioned to you, $87,210 principal is outstanding on the shares purchased by you; interest has been paid through March 31, 1987. Lieb apparently apprised First State of the Control Group’s purchase of Lightfoot’s stock on January 15, 1987. Handwritten notes from a meeting with Randy Cadwallader, a First State loan officer, show that “Lightfoot’s Crown Bank stock [is] to be transferred over to the Control Group.” On May 19, 1987, Lieb wrote to the Control Group about the agreement to purchase Fields’ and Lightfoot’s shares. According to Lieb’s letter, in June of 1986 the Control Group had agreed to purchase 83.3 percent of Lightfoot’s shares and in April 1987, to purchase 90 percent of Field’s shares: Dear Control Group Member: The Control Group has purchased certain shares from Waymond Lightfoot and Ray Fields, 25,000 shares and 9,000 shares, respectively. The agreement with Mr. Lightfoot was made in September, 1986, and with Mr. Fields in April, 1987. An explanation of each transaction is enclosed herewith, together with an analysis of the amount owed by each Control Group member. Lieb’s accompanying explanation stated that “[t]he principal balance outstanding on Mr. Lightfoot’s stock on 10/01/86 amounted to $290,700.00. On that date, the Control Group repurchased 25,000 shares of stock from Mr. Lightfoot at $10/sh.” As for Fields, the explanation further stated: “The principal balance outstanding on Mr. Field’s note on 4/20/87 amounted to $96,900.00. On that date, the Control Group repurchased 9,000 shares of stock from Mr. Fields at $10 per share.” Both Lightfoot and Fields testified that these statements accurately described their agreements with the Control Group. The letter concluded: “Please make your check payable to Dwight L. Lieb, Trustee for the Control Group, and forward same to me at Crown Bank.” Lightfoot said this letter accurately represented the agreement he thought he had with the Control Group. Lightfoot recalled that he was to be paid by the Control Group, but that it made no difference to him whether appellants performed the agreement either by paying cash or by assuming the indebtedness to First State. He assumed, however, that appellants had chosen to pursue payment by assuming his indebtedness with First State. Lightfoot continued to serve as a director of Crown Bancshares and Crown Bank, and continued to attend board meetings. He said he was aware of the purchase of Fields’ stock when he received Lieb’s May 19 letter. Appellants recalled these events differently. Baker, for example, denied — and continues to deny — that he ever gave Lieb authority to buy Fields’ or Lightfoot’s stock under the terms of the agreement described in Lieb’s May 19,1987 letter. Baker, like all of the other appellants, testified that in order to buy Fields’ or Lightfoot’s stock, it would have been necessary to have the stock purchase financed by First State Savings, using the stock as security. But, First State never agreed to refinance Fields’ and Lightfoot’s stock. Nor did Baker recall ever giving Lieb authority to purchase Fields’ or Lightfoot’s stock. On April 27, 1987, Fields wrote to Lieb confirming what he called, “our agreement whereby you, or your as-signee, purchased 9,000 Crown Bancshares from me on Monday, April 20, 1987, at $10.00 per share. As mentioned to you, $87,210 principal is outstanding on the shares purchased by you; interest has been paid through March 31,1987. “A cheek for $2,790.00, less the interest owed to April 20, 1987, should be forwarded to me ...” On August 6,1987, the Control Group issued a check to Fields for $2,700. Fields claimed this figure represented his equity in the 9,000 shares he had sold to the Control Group. Each Control Group member sent Lieb his prorata contribution for 90 percent of the principal and interest due on Fields’ note to First State. Meanwhile, Lightfoot continued to receive past-due notices from First State. On June 10, 1987, he received a letter from Pam Pilgrim, a loan processor with First State, which informed him that his loan had been in default since December 20, 1986. The letter added: “I have been informed that you are working with the Control Group in regards to the purchasing of approximately 83% of your crownbanc stock. The fact remains, however, that your loan is delinquent and you are responsible for this obligation.” Lightfoot recalled asking the Control Group on several occasions why he was receiving these notices and, more specifically, about the progress of the transaction; he testified that he was assured each time that it was just a matter of “paperwork,” that it was being “handled,” and that they were in control of the situation. Like Fields, Lightfoot testified that he paid only the interest attributable to his retained shares after the alleged purchase. A handwritten letter received by Lieb in March of 1987 states that “[t]hese are the payments I have made against the stock. The sale was originally proposed for June of 1986. The transfer was for $260,000 but I am willing to transfer all of it. My financial commitments have increased dramatically due to other insurance related activities.” The letter is signed “Waymond” and is written on Way-mond Lightfoot’s personal stationery. Accompanying the letter are four checks from the Harris and Lightfoot Insurance Agency. Lightfoot and Fields both testified that they were repeatedly assured payments were being made on their loans. The record contains photocopies of several checks from Lieb, the voting trustee, to First State for principal and interest due on their loans to First State. On September 28, 1987, the Control Group issued a check to First State for $6,923.18. This figure represented 90 percent of the principal and interest due on Fields’ note as of September, 1987. Fields testified that he paid — and continued to pay — the remaining 10 percent, having retained 1,000 of his original 10,000 shares. Although the Control Group never paid Lightfoot’s equity, it issued — through Lieb as Trustee — a check to First State for $7,267.21. This amount represented 83 percent of the principal and interest due on Lightfoot’s note in September of 1987. Lightfoot stated that he was never informed the Control Group had stopped making payments to First State. On October 20, 1987, Lieb again wrote to the Control Group: Enclosed please find a statement for your prorata share of the interest payable to First State for the shares purchased by the Control Group from Waymond Light-foot and Ray Fields. First State is very anxious to receive payment by Friday, October 23, 1987, and your check by return mail, payable to Dwight L. Lieb, Trustee for Control Group, sent to the bank will be appreciated. At an October 1987 meeting, the Control Group discussed the status of this matter as well as delinquent loans of minority (non-Control Group) stockholders. The minutes also indicate that “First State had never prepared documents necessary to refinance the shares of Waymond Lightfoot and Ray Fields which the members of the Control Group agreed to purchase in 1986.” The Control Group directed that a $50,000.00 letter of credit be obtained and provided to First State to cover delinquent principal and interest on all notes held by First State and to bring cash contributions of all Control Group members current. On October 27, 1987, the Control Group’s attorney, Neil Boldriek, Jr., wrote to First State that several “adjustments” to the original $6.2 million notes were necessary, e.g., “restructuring of the Lightfoot and Fields Notes and complete financing for new investors of the Gamboa, Flume, Japhet and O’Connor Notes.” In December of 1987, Dennis Jones, an assistant vice president with First State, advised Neil Boldriek that “[a]s all parties are well aware, certain of the loans are presently in default, and have been in default for a period of time beyond thirty (30) days_” Jones also advised Boldrick that “First State Savings is willing to accommodate your clients.” Jones’ letter added that “[i]f, after reasonable efforts on the part of your clients, they are unable to bring the loan current, then, upon transfer of the stock or a letter instructing us to transfer the stock to Dwight Lieb, Trustee, and payment of all past-due interest, we will reinstate the applicable loan.” The letter further advised Boldrick that First State held a letter of credit and certificates of deposit that could be used to pay past due interest if the Control Group so desired. Jones later testified that First State never provided financing for loans to purchase Fields’ or Lightfoot’s stock and that his letter to Boldrick never specifically addressed the question. Rather, it addressed the problem of the Control Groups’ delinquent loans and what was necessary to reinstate them. On February 12, 1988, Lightfoot received another letter from First State informing him that the note for $290,700.00 “executed by O. Waymond Lightfoot and payable to First State Savings” was now in default. The letter demanded payment for $28,534.28 in past due interest on or before February 25,1988. On February 22, 1988, the Control Group met at the home of Frank Davila II. The apparent subject of the meeting was a memorandum written by Frank Davila II and addressed to the “File” which questioned whether the Control Group had ever agreed to purchase Fields’ and Lightfoot’s stock. Davila observed that “[a]n effective transaction concerning the sale or transfer of the stock would involve, among other things, the approval of First State Savings to finance the purchase of the said stock”; and that “Dennis Jones of First State Savings told Fred Baker and myself that at no time had there been an agreement by First State Savings to finance such a purchase.” Davila concluded by noting that: The ultimate disposition of said shares of stock will probably result in any case in the fact that the Control Group and its members are going to be saddled with obligations which were not fully foreseen at the time that the written documents were executed. I feel very strongly, however, that there should not be ratification of a transaction which has not in fact occurred, and that the legal owners of the shares of stock in question should be the persons involved in the foreclosure and/or other proceedings which have or might be initiated by First State Savings. This is my opinion, and perhaps I am the only person holding to this opinion, but I believe that each member present should take a yes or no position as to whether the transaction took place, and whether the Control Group and its non-delinquent members should be involved in any of the steps preceding the actual takeover of the stock by First State Savings. Fields testified that Lieb interrupted a heated discussion between Frank Davila II and Fields by reassuring Fields that the Control Group had indeed purchased Fields’ stock. Although Fields said he took that as a reassurance he was going to get paid, he continued to get notices from First State Savings reflecting 100 percent liability on the loan, as though he still owned 10,000 and not 1,000 shares. As before, however, Fields continued to pay 10 percent of the outstanding loan balance. Fields recalled writing two separate checks for 10 percent of the interest due— one in June and another in September. He sent them directly to Fred Baker. Both payments were accompanied by a letter to Baker. Both letters specified the amount tendered and identified that amount as ten percent of the current interest payment due. The letters further noted that the interest on the balance of the note “should be paid by the Control Group pursuant to their purchase of my stock in April, 1987.” Baker testified that he did not recall Lightfoot ever writing letters about either his stock or his down payment. As before, Fields asked for a copy of the minutes of the March, 1988 Control Group meeting and reminded Baker the account with First State was past-due: I am again requesting a copy of the minutes of this years [sic] meeting wherein it was again confirmed that the Control Group purchased, in April 1987, 9,000 of my 10,000 shares of stock in Crown Bank. Please note on the enclosed statement of account from First State Savings that the Control Group still owes the amount shown as delinquent on the statement of account. I have been current on my share of the account since my purchase of the stock. It is again requested that the records at First State Savings be brought up to date accordingly and that I be notified that this action has been taken. Fields said he never received a copy of those minutes, taken by Pitman, until he saw them in discovery prior to the trial of this case. During February of 1988, Don Krause, an attorney for the Control Group, began negotiations with First State to refinance the $5.2 million capitalization loan. Refinancing was discussed during a March 7,1988 meeting of the Control Group, which also confirmed Lieb’s resignation as trustee. He was replaced by Fred L. Baker and Frank Davila II as co-trustees. The Control Group also voted to renegotiate the entire First State $5.2 million loan on better terms. The minutes state that: Dwight Lieb delivered to Fred Baker a check in the amount of $24,266.44, such check representing the interest due on his loan to First State Savings, such interest calculated through 2-29-88. This payment is to be used only if the other members of the Control Group pay their pro-rata share of the amounts that are delinquent at First State Savings, and a restructuring of the debt at First State Savings is accomplished. Upon a motion made by B.F. Pitman and seconded by Ray Fields, Frank Davila and Fred Baker were appointed to work with Don Krause in the attempt to restructure the indebtedness at First State Savings. The motion passed unanimously. The check for $24,266.44, along with additional cash contributions from other Control Group members, was supposed to bring the delinquent or defaulted loans current, thereby inducing First State to restructure the loans on better terms. First State had made clear it would not do anything until the delinquent loans were made current — hence, the contributions. Baker continued to hold this money until February of 1990, at which point he said it became clear a restructuring of the loans could not be accomplished. The Control Group never succeeded in restructuring their loans with First State. Don Krause testified that he tried his best to induce First State to restructure the loans but they never agreed to do so. Baker testified that in addition to Krause’s efforts, he repeatedly talked to representatives of First State to try not only to get them to restructure all the loans on better terms, but also to make loans to finance the purchase of Fields’ and Lightfoot’s stock. Again, however, First State never did so. Baker, like Lieb, and Dennis Jones, a vice president in charge of regulatory compliance with First State Savings, considered refinancing the loans and financing the purchase of appellees’ stock as separate issues. Whether First State representatives ever intended to finance a stock purchase, the evidence certainly shows that Control Group members, including Baker, believed that First State was going to finance the purchase of appellees’ stock. This belief was apparently based, at least in part, on statements made by representatives of First State who were in management when the original purchase money loans were made, but who were no longer with First State when discussions were later held to renegotiate the total indebtedness and finance the appellees’ purchase. There is also evidence that First State Savings was having financial problems long before the Federal Deposit Insurance Corporation (FDIC) took control of it in March of 1989. Beginning in April of 1987, First State was under on-site supervision of state, and later federal, banking regulators; there is testimony to the effect that their approval would have been required for any restructuring of loans or stock purchase financing. On March 16,1988, the Control Group met again and with Fields, Lightfoot, Frank Da-vila II and O’Connell abstaining, voted to confirm and ratify the purchase of Fields’ and Lightfoot’s stock. The handwritten minutes from the March 16, 1988 meeting— taken by Pitman — record that a “motion to confirm that the stock purchase is a valued transaction” was made, seconded and passed. There is no mention of any financing conditions. On March 25, 1988, Crown Baneshares filed its “Annual Report of Bank Holding Companies” for the 1987 fiscal year — the “FR Y-6” form — with the Federal Reserve. The FR Y-6 contained a list of the members of the Control Group and their individual percentages of ownership in Crown Bane-shares. The report stated that Fields owned 1,000 shares and Lightfoot owned 5,250 shares. The report mentions no stock sale or financing conditions. The FDIC took control of First State Savings on March 2, 1989. On June 26, 1989, Fields received his first official delinquency notice from the now federally-controlled First State Savings. In July, the FDIC again demanded payment from Fields for his full share of the initial capitalization loan, which represented 10,000 shares of Crown Baneshares stock. In August of that year, Baker met with Donald Backer of the FDIC, in a final attempt to either restructure the notes with First State or refinance Fields’ and Light-foot’s notes. Backer, however, maintained that he intended to deal with the Control Group borrowers on an individual basis. Baker reminded him that “if he was going to do that, then the transaction between the members of the Control Group and Mr. Fields and Mr. Lightfoot needed to be taken into consideration as he dealt with each individual.” No agreement to refinance was reached. On February 6, 1990, Co-Trustees Baker and Frank Davila II wrote to the Control Group that “it has become obvious that each of us will end up dealing with First State on an individual basis.” With this letter, Baker and Frank Davila II returned money the Control Group had contributed to the Trust in March of 1988 for renegotiation of their delinquent loans with First State. Fields received $451.97; Lightfoot received $2,410.28. Both Fields and Lightfoot recalled accepting and cashing their checks. Baker later testified that he returned “dolíar-for-dollar” what had been contributed. He said he did not think he had the authority from the other Control Group members to turn all of the money over to either Fields or Lightfoot to pay for the stock purchase. After receiving the letter and check, Fields, on February 10,1990, wrote to Baker expressing his concern “that nothing has been accomplished to date regarding the transfer of the 9,000 shares of Crown Bane-shares common stock purchased from me by Control Group members in April, 1987.” In October of 1990, Crown Baneshares’ board of directors voted to liquidate and dissolve the bank. The resolution appointed Bernard Austin as the Liquidating Director and Trustee and provided that Crown Bane-shares would distribute the remainder of its bank account to its shareholders on a prorata basis. Fields recalled receiving a liquidation distribution based on only 1,000 shares of stock. In November of 1990, Austin sent the shareholders of Crown Baneshares, Inc. their purported prorata shares of the liquidation distribution — approximately $0.1254013 for each share held. On November 25, 1990, Austin wrote to Neil Boldrick that in connection with the liquidation, he was enclosing two cashier’s checks for the firm’s escrow account. One of the cheeks, registered in Fields’ name, was for $1,128.61 and represented 9,000 shares of stock. The other check, registered in Lightfoot’s name, was in the amount of $3,135.03 and represented 25,-000 shares. The letter added that “[t]he 9,000 shares and 25,000 shares listed above represent shares apparently purchased from Mr. Fields and Mr. Lightfoot by the Crown Bancshares, Inc. Voting Trust (‘Control Group’) but which shares have never been presented to the corporation for registration.” On June 26, 1991, Fields filed a voluntary petition under Chapter Seven of the U.S. Bankruptcy Code. Both Fields and Light-foot were subsequently sued by the RTC for the full amounts of their First State notes. Lightfoot testified that he realized for the first time that he would not be paid for his stock on October 10, 1991. On that day he attended a meeting with Fields, his lawyers, and various members of the Control Group. Lightfoot recalled there were “some extremely heated discussions and denials as to any responsibility for the debt and/or the purchase of Ray Fields’ stock.” Fields said that until February 6, 1990, he believed the appellants were in the process of performing the agreement. Fields and Lightfoot filed this lawsuit on November 25, 1991 against Crown Banc-shares, Inc., F. Bernard Austin, Fred L. Baker, Michael H. Bertirio, M.D., Frank Cross, Frank Davila II, Rodolfo Davila, Israel Fogiel, Lawrence F. Haass, Roger Maley, Kim I. Manning, J. Pat O’Connell, J. Brian O’Connor, B.F. Pitman III, and Richard G. Rouse, M.D. The plaintiffs originally asserted causes of action for breach of contract, misrepresentation, fraud, breach of fiduciary duty (both as to the directors and trustees of Crown Bancshares), negligence, tortious interference with contract, and violations of article 581-33(B) of the Texas Securities Act. The appellees’ second amended petition (filed on December 14, 1992) dropped claims against F. Bernard Austin but added the Rodolfo L. Davila Estate Trust as a defendant. The amended petition also dropped claims for tortious interference with contract, but added negligent misrepresentation and several additional theories of liability against the trustees and directors of Crown Banc-shares. The appellees claimed that the directors, liquidating director, trustee, and co-trustees of Crown Bancshares failed to establish a “trust fund” for the benefit of Fields, Lightfoot and other creditors. They argued that the corporate entity of Crown Banc-shares should be disregarded because it was the “alter ego” of the Control Group and because it was used as a “sham to perpetrate a fraud.” The appellees further argued that the defendants’ breach of contract resulted in a “loss of credit and/or injury to credit reputation of Fields and Lightfoot.” At the conclusion of the evidence, the trial court submitted four of the appellees’ causes of action to the jury: (1) breach of contract; (2) breach of trustees’ (Fred L. Baker and Frank Davila II) fiduciary duties; (3) breach of directors’ (Fred L. Baker, Michael H. Bertino, Frank Davila II, Lawrence F. Haass, Kim I. Manning, J. Pat O’Connell, J. Brian O’Connor, B.F. Pitman) fiduciary duties; and (4) violations of the Texas Securities Act. After the jury found for the appellees on these issues, the trial court rendered judgment against the appellants on April 12, 1993. A default judgment was entered against Crown Bancshares. Defendant, Richard G. Rouse, received a summary judgment prior to trial. The case against him was severed, resulting in a separate appeal. In Fields and Lightfoot v. Rouse, No. 04-93-00067-CV (Tex.App. — San Antonio, December 15,1993, writ denied) (unpublished), we affirmed the summary judgment in Dr. Rouse’s favor. The trial of this case lasted nearly three weeks and leaves a substantial record in its wake. Compounding the problem is the fact that appellants have brought 104 points of error scattered among four separate briefs. Fred Baker, for example, raises 35 points of error. B.F. Pitman, J. Brian O’Connor, Michael H. Bertino, and Kim I. Manning (hereafter Pitman) raise 29 points of error. Rodolfo Davila, Trustee of the Rodolfo L. Davila Estate Trust, and Frank Davila II, his brother (together, the Davilas), raise 23 points of error. Lawrence F. Haass raises 17 points of error. Each appellant’s brief, in turn, adopts the points of error and arguments contained in the other three. In addressing these arguments we have tried, whenever possible, to combine the relevant points of error and address them collectively. Whenever possible, we have also avoided addressing the appellants’ points by their individual number, discussing them instead according to the issues they raise. DISCUSSION Statute of Limitations All of the appellants raise “matter of law” points attacking the trial court’s decision to submit the discovery rule in questions 20 and 21 of the jury charge. In answering questions 20 and 21, the jury found that Fields and Lightfoot either discovered or, in the exercise of reasonable diligence, should have discovered on February 6, 1990 that appellants would not perform the agreement. Appellants argue that the trial court erred in awarding judgment for Fields and Lightfoot under a breach of contract theory because, as a matter of law, the cause of action is barred by the four-year statute of limitations. We disagree. This lawsuit was filed on November 25, 1991. The original petition named as defendants all of the appellants except the Rodolfo L. Davila Estate Trust, which was joined as a defendant when the appellees filed their second amended petition on December 14,1992. As we have already noted, however, Lieb’s letter to the Control Group regarding the Control Group’s repurchase of the appellees’ stock is dated May 19, 1987. Lieb’s letter also references two earlier dates: September of 1986 for Lightfoot and April, 1987 for Fields. The appellees’ second amended petition claims that under the alleged stock purchase agreement, the effective date of the transfer, for purposes of calculating principal, interest, and equity, was October 1,1986 for Lightfoot and April 20, 1987, for Fields. However, all of these dates are well beyond the four-year limitations period for breach of contract claims. See Tex.Civ.PRAC. & Rem. Code Ann. § 16.004 (Vernon 1986). Unless the appellees’ breach of contract claim somehow accrued or was tolled beyond November 25, 1987 — four years before this lawsuit was filed — it is barred by limitations. Fields and Lightfoot therefore offer three arguments designed to avoid the limitations period: (1) their claims against the appellants did not accrue until the appellants had a “reasonable time” to pay the money they owed; (2) the appellants acknowledged the debt; and (3) the “discovery rule” tolled the limitations period. This last argument will be the focus of our discussion. When reviewing “matter of law” points, an appellate court employs a two-prong test. The court will first examine the evidence supporting the jury’s finding, ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); see also W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. MARY’S L.J. 1135 (1993). If there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690. Only when the contrary proposition is conclusively established by the evidence do we sustain the point. Meyerland Community Improvement Ass’n v. Temple, 700 S.W.2d 263, 267 (Tex.App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.). In Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex.1988), the court explained the nature and origin of the discovery rule: We hold that the discovery rule is a plea in confession and avoidance. A plea in confession and avoidance is one which avows and confesses the truth in the aver-ments of fact in the petition, either expressly or by implication, but then proceeds to allege new matter which tends to deprive the facts admitted of their ordinary legal effect, or to obviate, neutralize, or avoid them. This most closely describes the function of the discovery rule, which asserts that while the statute of limitation may appear to have run, giving rise to that appearance should not control. A party seeking to avail itself of the discovery rule must therefore plead the rule, either in its original petition or in an amended or supplemental petition in response to defendant’s assertion of the defense as a matter of avoidance. A defendant who has established that the suit is barred cannot be expected to anticipate the plaintiffs defenses to that bar. A matter in avoidance of the statute of limitations that is not raised affirmatively by the pleadings will, therefore, be waived. The party seeking to benefit from the discovery rule must also bear the burden of proving and securing favorable findings thereon. The party asserting the discovery rule should bear this burden, as it will generally have greater access to the facts necessary to establish that it falls within the rule. Id. at 517-18 (citations omitted). The discovery rule does not excuse a party from exercising reasonable diligence in protecting its own interests. Johnson v. Abbey, 737 S.W.2d 68, 70 (Tex.App.—Houston [14th Dist.] 1987, no writ). The rule expressly mandates the exercise of reasonable diligence to discover facts of negligence or omission. Black v. Wills, 758 S.W.2d 809, 815 (Tex.App. —Dallas 1988, no writ). Moreover, the burden is on the party seeking the benefit of the discovery rule to establish its applicability. Woods, 769 S.W.2d at 518. Whether reasonable diligence was used is generally a question of fact unless the evidence is such that reasonable minds could not differ as to its effect; only then does it become a question of law. Enterprise-Laredo Associates v. Hachar’s, Inc., 839 S.W.2d 822, 837 (Tex.App. —San Antonio 1992), writ denied per curiam, 843 S.W.2d 476 (Tex.1992). A breach of contract action is governed by a four-year statute of limitations. Tex.Civ. Pkac. & Rem.Code Ann. § 16.004 (Vernon 1986). In applying this four-year limitations period, a cause of action is generally said to accrue “when the wrongful act effects an injury, regardless of when the plaintiff learned of such injury.” Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). An exception to the general rule is known as the discovery rule and this rule is used to determine when the cause of action accrued. The discovery rule tolls the running of the limitations period until the time the injured party discovers or through the use of reasonable care and diligence should have discovered the injury. In a breach of contract action, limitations begin to run from the time of the breach, or from the time the plaintiff knew or should have known of the breach, whichever is the later. El Paso Associates, Ltd. v. J.R. Thurman & Co., 786 S.W.2d 17, 20 (Tex.App.—El Paso 1990, no writ). Id. at 837 (emphasis added); see also El Paso Associates, Ltd. v. J.R. Thurman & Co., 786 S.W.2d at 20 (cause of action for breach of contact “commences to run from the time of the breach of contract, or from the time when the plaintiff had knowledge of the breach, whichever is the later, unless his lack of knowledge resulted from his lack of diligence or from negligence”). For a court to apply the discovery rule, the party asserting it must also affirmatively plead the rule. Woods, 769 S.W.2d at 517-18. Appellants argue that the discovery rule does not toll the statute of limitations in this case because Fields and Lightfoot failed to plead the discovery rule. After reviewing the appellees’ amended and original pleadings, however, we believe Fields and Light-foot pled sufficient facts to make the discovery rule an issue in this case. Although appellees’ original and amended pleadings do not specifically mention discovery or concealment, their second amended petition alleges that Lightfoot made no earlier demand for payment for the purchase of his shares because “he did not know and could not have known that the Control Group would not perform the agreement.” As for Fields, the clear import of the appellees’ pleadings is that he did not know and could not have known the Control Group’s intent until Baker and Frank Davila II returned the third-call contributions and wrote that “it has become obvious that each of us will end up dealing with FIRST STATE on an individual basis.” Also, the appellees specifically pled that they “justifiably relied” on the Control Group’s representation that the appellants “would consummate the purchase of their respective shares of stock.” The general rule is that pleadings will be construed as favorably as possible to the pleader. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex.App.—Corpus Christi 1991, writ denied). “The court will look to the pleader’s intendment and the pleading will be upheld even if some element of a cause of action has not been specifically alleged. Every fact will be supplied that can reasonably be inferred from what is specifically stated.” Gulf, Colorado & Santa Fe Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex.1963). Having reviewed the appellees’ pleadings and the record, we believe Fields and Lightfoot pled sufficient facts to make the discovery rule an issue in this ease. We also note that appellants failed to file any special exceptions to the appellees’ original or amended pleadings; hence, they waived any pleading defects. See J.K. & Susie L. Wadley Research Inst v. Beeson, 835 S.W.2d 689, 695 (Tex.App.—Dallas 1992, writ denied); see also Tex.R.App.P. 90. Having determined that the discovery rule applies in this case, the issue then becomes whether there is sufficient evidence to support the jury’s finding. As we have already noted, both Fields and Lightfoot testified that appellants could perform the agreement by paying cash or by assuming their indebtedness with First State Savings. Thereafter, Lightfoot paid the interest attributable to his retained shares; appellants paid the interest attributable to the sold shares. The trustees assured Lightfoot on several occasions that completion of the assumption was merely a matter of paperwork. Light-foot said he believed that the appellants were attempting in good faith to work out the assumption, but that nobody at First State apprised him of any problem. Against this background, Lightfoot testified that he realized appellants were not going to perform the agreement after a meeting with Fields and his counsel on October 10,1991. Fields likewise testified that First State accepted his interest payments attributed to the retained shares and that appellants’ ongoing assumption effort “was exactly what they said they would do.” Until February 6, 1990, Fields said he believed, by virtue of the parties’ reallocated contributions toward the First State loan and appellants ongoing assumption efforts, that appellants were in the process of performing the agreement. The jury found that appellees, in the exercise of reasonable diligence, should have discovered on February 6, 1990 that appellants would not perform the agreement. The jury charged Lightfoot with notice on that date despite his testimony as to a later date. Even so, reasonably diligent discovery is generally a matter for the jury. Enterprise-Laredo, 839 S.W.2d at 838. This is especially true in a case like this one, where the material facts are far from undisputed. Giving due deference to the jury’s role in determining the weight and credibility of the witnesses’ testimony, we believe there is sufficient evidence to support the jury’s finding that February 6, 1990 was the date Fields and Lightfoot either discovered or should have discovered that the Control Group would not perform the agreement. Since there is sufficient evidence supporting the jury’s finding, we need not consider the second element of Sterner. 767 S.W.2d at 690. Judicial Admission We reach this conclusion despite the appellants’ argument that both Fields and Lightfoot judicially admitted their actions accrued at a time when they would have been barred by limitations. Appellants are correct in noting that Fields and Lightfoot repeatedly testified they were entitled to payment beginning in April of 1987 with respect to Fields, and in September or October of 1986 as to Lightfoot. But, while Fields and Lightfoot both testified they were entitled to payment at the time of the contract, they also pinpointed the date when they realized the appellants were not going to perform the agreement. Lightfoot testified that he realized this for the first time on October 10, 1991; Fields testified that he reached this conclusion on February 6, 1990. We have already noted that the limitations period on a claim for breach of contract begins to run “from the time of the breach, or from the time the plaintiff knew or should have known of the breach, whichever is the later.” Enterprise-Laredo, 839 S.W.2d at 837. Without application of the discovery rule, a contract cause of action normally accrues when the contract is breached, not when it was made. Tel-Phonic Services, Inc. v. TBS Int'l Inc., 975 F.2d 1134, 1143 (5th Cir.1992). The most that can be said of Fields’ and Lightfoot’s testimony regarding their entitlement to payment is that it raises a question as to when they really knew matters had gone awry. One could argue that if the appellees knew they were entitled to their money beginning in late 1986 or early 1987, they must have known long before February of 1990 that the appellants were not going to honor the agreement. This is, however, an evidentiary issue for the trier of fact, not a question of law for an appellate court; it was for the jury to determine the date appellees knew or should have known that the appellants were not going to honor their agreement. Moreover, the appellees’ testimonial declarations more closely resemble “quasi-admissions,” not conclusive judicial admissions: A party’s testimonial declarations which are contrary to his position are quasi-admissions. They are merely some evidence, and they are not conclusive upon the ad-mitter.... These are to be distinguished from the true judicial admission which is a formal waiver of proof usually found in pleadings or the stipulations of the parties. A judicial admission is conclusive upon the party making it, and it relieves the opposing party’s burden of proving the admitted fact, and bars the admitting party from disputing it.... Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex.1993) (quoting Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.1980)). “The requirements for treating a party’s testimonial quasi-admission as a conclusive judicial admission include that the statement be ‘deliberate, clear, and unequivocal’ and that ‘[t]he hypothesis of mere mistake or slip of the tongue must be eliminated.’” Id. at 372 (quoting Griffin v. Superior Ins. Co., 161 Tex. 195, 338 S.W.2d 415, 419 (1960)). Given the record in this case, we cannot say either Fields or Lightfoot judicially admitted that their claims for breach of contract were barred by limitations. Nor do we attribute any significance to the fact that the plaintiffs’ second amended petition pleads for a recovery of prejudgment interest beginning on October 1, 1986 for Lightfoot and April 20, 1987 for Fields. Article 5069-1.03 provides in part: When no specific rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all accounts and contracts ascertaining the sum payable, commencing on the thirtieth (30th) day from and after the time when the sum is due and payable. Tex.Rev.Civ.Stat.Ann. art. 5069-1.03 (Vernon 1987). The Texas Supreme Court has stated that “where damages are definitely determinable, interest is recoverable as a matter of right from the date of the injury or loss.” Imperial Sugar Co., Inc. v. Torrans, 604 S.W.2d 73, 74 (Tex.1980) (per curiam). We therefore agree with appellees that there is nothing inconsistent about pleading for the commencement of interest, on the one hand, and a reasonable post-contract period of time in which appellants could timely perform the agreement, on the other. Law of the Case Nor are we persuaded by the appellants’ argument that our prior opinion in Fields and Lightfoot v. Bouse, No. 04-93-00067-CV (Tex.App.—San Antonio, December 15, 1993, writ denied) (unpublished), controls the outcome of this appeal. In our prior decision, which affirmed a summary judgment in favor of Dr. Richard G. Rouse, we held that all of the appellees’ claims against Dr. Rouse were barred by the four-year statute of limitations for breach of contract claims. Appellants argue that our prior decision in Fields and Lightfoot v. Bouse controls the outcome of this case insofar as appellees’ breach of contract claim is concerned. Again, however, we disagree. The “law of the case” doctrine has been defined by the Texas Supreme Court as “that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages.” Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). By narrowing the issues in successive stages of the litigation, the law of the case doctrine attempts to achieve uniformity of decision as well as judicial economy and efficiency. Dessommes v. Dessommes, 543 S.W.2d 165, 169 (Tex.Civ.App.—Texarkana 1976, writ ref'd n.r.e.). The doctrine is based on public policy and is aimed at putting an end to litigation. See Barrows v. Ezer, 624 S.W.2d 613, 617 (Tex.Civ.App. — Houston [14th Dist.] 1981, no writ); Elliott v. Moffett, 165 S.W.2d 911 (Tex.Civ.App.—Texarkana 1942, writ refd w.o.m.). The doctrine of the law of the case only applies to questions of law and not to questions of fact. Hudson, 711 S.W.2d at 630. Furthermore, the doctrine does not necessarily apply when either the issues or the facts presented at successive appeals are not substantially the same as those involved in the first trial. Barrows, 624 S.W.2d at 617. In Hudson, the court also drew a distinction between a summary judgment and an appeal following a full trial on the merits: A critical factor in our determination of this case is that in the first appeal we reviewed a summary judgment. On review of summary judgments, the appellate courts are limited in their considerations of issues and facts. In such a proceeding, the movant is not required to assert every theory upon which he may recover or defend. Thus, when a case comes up for a trial on the merits, the parties may be different, the pleadings may be different, and other causes of action may have been consolidated. See Governing Bd. v. Pannill 659 S.W.2d 670, 680-81 (Tex.App.—Beaumont 1983, writ refd n.r.e.). Other distinctions may be drawn; for instance, in reviewing the evidence to determine whether there are any fact issues in dispute, the appellate court must review the evidence in the light most favorable to the party opposing the motion for summary judgment. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 (1962). Thus, the context of a summary judgment proceeding is distinguishable from a full trial on the merits. Id. at 630-31. See also Med Center Bank v. Fleetwood, 854 S.W.2d 278, 283 (Tex.App.— Austin 1993, writ denied). The court in Pan-nill also recognized that an “appeal after a full and lengthy trial on the merits with a jury acting as the finder of facts, differs in a very material sense from a prior limited appeal” following a summary judgment. Pannill, 659 S.W.2d at 681. The distinction recognized in Hudson and Pannill also applies here, since our prior opinion was issued on review of a summary judgment in favor of Dr. Rouse. The present appeal followed a jury trial which lasted nearly three weeks and leaves behind a voluminous record. As a result, the facts were developed to a point far beyond the summary judgment record that we reviewed in Rouse. And as we have already noted, the jury found that Fields and Lightfoot either discovered or should have discovered on February 6, 1990 that the appellants would not perform the agreement. Were we sitting as the jurors in this case we might well have resolved the issue differently. However, it was for the jury, not this court, to weigh the evidence and determine the weight and credibility of the witnesses’ testimony. There is certainly sufficient evidence to support the jury’s answer. Given the present circumstances, we simply cannot agree that our opinion in Rouse should control the legal issues in this appeal. Requested Limitations Issues Appellants also argue that the trial court erred when it refused to submit their requested limitations issues. They claim the jury should have been asked when payment was due, not when Fields and Lightfoot “knew or should have known” that the appellants would not perform the agreement. Once again, we disagree. There were four proposed limitations issues which were refused by the trial court. Two of these issues were submitted by the Davilas; the other two by Baker. As to Fields and Lightfoot, however, they were identical: (1) “On what date was the indebtedness claimed by O. Waymond Lightfoot, Jr. due to him under the terms of the agreement, if any?”; and (2) “On what date was the indebtedness claimed by William R. Fields, Jr. due to him under the terms of the agreement, if any?” Appellants also argue that the trial court erred in submitting questions 20 and 21 because they are not “ultimate issues.” Building on their previous argument, appellants again claim the appellees’ causes of action began to run at the time when they were entitled to their money. Given the appellees’ testimony, this would have been on October 1, 1986 for Lightfoot and April 20, 1987 for Fields. According to appellants, it follows that a question regarding the date appellees knew, or should have known, that the Control Group would not perform the agreement is “irrelevant.” Again, we disagree. Proposed questions must be submitted to the jury in “substantially correct wording.” Tex.R.Civ.P. 278. If the request is not in substantially correct wording, it does not preserve error. Tex.R.Civ.P. 279; Keetch v. Kroger Co., 846 S.W.2d 262, 266 (Tex.1992). In this case, the appellants’ proposed limitations questions were not tendered in “substantially correct” wording. For example, their tendered questions assumed that the contract specified when payment would be due — it did not. Appellants apparently presume that the limitations period for breach of contract claims is measured only from the time payment is due — it is not. Nor can appellees’ testimony regarding when they were entitled to their money be transformed into conclusive judicial admissions, given the strict standards which govern judicial admissions. To be within the realm of substantial correctness, the appellants’ tendered limitations questions should have included a reasonable time inquiry — once again, they did not. Since the appellants failed to comply with Rule 279, their limitations points concerning the charge are not subject to appellate review. There was no abuse of discretion. As to whether questions 20 and 21 raised “ultimate issues,” we note that the trial court has broad discretion when constructing the jury charge. “A proper broad form jury question asks an ultimate issue and instructs the jury about the elements of the ground of recovery or defense that the jury must find before giving a ‘yes’ answer to the issue.” Rampel v. Wascher, 845 S.W.2d 918, 924 (Tex.App.—San Antonio 1992, writ denied). We hold that the charge in this case aided the jury and did not misstate the law. Appellants’ points are overruled. Breach of Contract Fields and Lightfoot pleaded that Lieb’s May 19, 1987 letter evidenced a contract binding on the appellants for the purchase of the appellees’ stock. This claim was submitted to the jury in questions one and two of the court’s charge. In answering these questions, the jury agreed that Lieb’s May 19, 1987 “writings” “constituted an agreement whereby the Control Group” purchased Fields’ and Lightfoot’s stock. The questions were preceded by an “Instruction on Agreement,” which charged the jury as follows: In deciding whether the parties agreed that Lightfoot and Fields would not be paid unless First State Savings actually funded and restructured the Control Group’s loans, you may consider what the parties said and did in light of the surrounding circumstances, including any earlier course of dealing. You may not consider the parties’ unexpressed thoughts or intentions. In addition to arguing that the appellees’ contract claim is barred by limitations, appellants assail the breach of contract theory on a number of other grounds: (1) the trial court should have admitted evidence that the agreement was conditioned on First State “actually funding” the stock purchase; (2) the trial court should have asked the jury whether the agreement was “conditioned” on financing; (3) the jury’s finding that the Control Group ratified its purchase of the appel-lees’ stock is not supported by legally or factually sufficient evidence; (4) the trial court should have asked the jury whether each of the appellants individually ratified the agreement; (5) the appellees’ contractual damages are not supported by legally or factually sufficient evidence; (6) the trial court should have submitted questions asking the jury whether each member of the Control Group individually agreed to purchase the appellees’ stock and whether the agreement was based upon prorata liability; and (7) the trial court should not have held them jointly and severally liable for the appellees’ contractual damages. Exclusion of Evidence Prominent among appellants’ complaints is their contention the trial court erred in not submitting to the jury their theory concerning the non-occurrence of an alleged condition precedent, i.e., the agreement was conditioned on First State “actually funding” the stock purchase. This argument takes two forms: (1) that the trial court erred in failing to admit evidence that the agreement was conditioned on First State actually funding or restructuring the Control Group’s loans; and (2) that the trial court should have submitted a separate question regarding conditional purchase in the court’s charge. We will begin with the first argument, ■ which concerns the parol evidence rule and the trial court’s ruling on the appellees’ motion in limine. On February 22,1993, shortly before trial, the appehees filed a motion in limine. Although there is no written order, the record indicates that the trial court sust