Full opinion text
OPINION BILL VANCE, Justice. This cause involves allegations of fraud and breach of fiduciary duty between business associates. I. FACTUAL BACKGROUND In the mid-1990’s, Larry Meyer was in the real estate development business. His projects included the acquisition, management, development, and sale of investment properties. To fund these projects, Meyer borrowed the initial investment money from a lending source called C.I.O.S. Meyer’s income derived, at least in part, from profits on the projects and from consulting fees from the numerous limited partnerships he set up to carry out the projects. In the fall of 1992, Meyer and John Cathey formed a business relationship. It was Cathey’s job to find projects in which Meyer could invest and to help plan the financing, construction, and operation of the projects. Over the years, Cathey and Meyer entered into a series of agreements, both oral and written, on various projects. Cathey was paid a base salary, but he alleged his primary benefit was to be income derived in various ways from net profits from the projects on which he worked. From September 1992 to August 1996, Cathey was involved in dozens of projects with Meyer. Pertinent to the lawsuit which is the subject of this appeal, they were involved in the following: • 1993: The acquisition of the Silverado Apartments, for which there was a written distribution agreement that Cathey would be paid twenty percent of net profits. • 1998: The acquisition of the Polo Club Apartments, for which there was a written distribution agreement that Cathey would be paid five percent of net profits. • 1995: The acquisition of the Valley Ranch Apartments, for which there was a written distribution agreement that Cathey would be paid nine percent of net profits if the distribution occurred before Meyer and Cathey terminated their business relationship, and four and one-half percent after termination. • 1995: The acquisition of the Arbors Apartments. Cathey and Meyer were the sole partners in a limited partnership which purchased these apartments from Meyer’s father. Cathey’s interest in the partnership was five percent. • 1995: The refinancing of the Silverado Apartments and the Arbors Apartments. • June 1995 through August 1996: The development of a project in Waco to construct a movie theater complex, and a project in Dallas to construct luxury condominiums. John Glover, an attorney, was also involved in the projects, drafting the legal documents for the limited partnerships and corporations through which the projects were carried out, as well as the written agreements which defined Cathey’s financial interests. Cathey was an officer, manager, or partner in many of these business entities, but he claimed he was not privy to the financial records. At trial, Meyer stated that Cathey simply never asked to review the records. During the three years and eleven months of his dealings with Meyer, Cathey was paid about $260,000. But the two had periodic disagreements about what Cath-ey’s financial interests were. First, Cath-ey claimed at trial that by January 1993, just four months into their relationship, Meyer had promised that Cathey would make twenty percent of the net profits from projects Cathey found, and ten percent from projects he did not find but nevertheless worked on. He was also to receive a $25,000 bonus if he completed a refinancing of the loans on a property previously purchased. He claimed that this oral “global agreement” as well as other oral promises were not always fully honored. However, there was trial testimony from Meyer’s witnesses that the “global agreement,” if it existed, would not have pertained to larger projects or to projects involving outside partners. Cathey also complained that a number of times Meyer either (a) refused to put in writing the oral agreement they had reached on a particular project or (b) presented Cathey with a written agreement containing provisions different from what had been agreed. Also, Cathey claimed to have suffered because many of the projects, after expenses and overhead were deducted, never made any net profit. He claimed at trial that Meyer secretly paid himself large “consulting fees” thereby draining off any net profit and enriching himself in the process. In August 1996, Meyer presented Cath-ey with four documents and demanded he sign them. One was a general release of any interests Cathey might have in any of the projects he had been involved with. A second cut Cathey’s interest in one of the apartment complexes in half. The third was an acknowledgment that Cathey was Meyer’s employee, which Meyer said he needed for tax pin-poses. It also contained provisions dramatically cutting Cathey’s monthly salary and binding Cathey to a non-competition agreement. The fourth provided that Cathey would get five percent of net profits from the Dallas condominium project. Cathey claimed that Meyer demanded that he sign all four documents, or he would get no interest in the Dallas project. Cathey refused to sign any of the documents. Meyer had the locks changed on Cathey’s office, and their relationship ended. II. TRIAL COURT PROCEEDINGS On May 22, 1997, Cathey sued Meyer for fraudulently inducing Cathey into: (1) entering into written agreements regarding his compensation for work done on purchasing four apartment complexes, by not disclosing that Meyer intended to pay himself large consulting fees, which had the effect of draining off the profits from the apartment projects so that there were no net profits from which Cathey’s share could derive; (2) working on the refinancing of two of the four apartment complexes, when Meyer did not intend to pay Cathey to the full extent orally promised; and (3) working on the Waco and Dallas projects, when Meyer did not intend to pay Cathey to the full extent orally promised. Cathey also sued Meyer for breach of fiduciary duty on the Waco and Dallas projects, asserting that Meyer took advantage of him by not fairly compensating him as promised. Cathey sued Glover, the attorney, for breach of fiduciary duty on the Dallas project by not protecting Cathey’s interests in his dealings with Meyer, and for negligence on the Dallas project by not expressly telling Cathey that Glover was representing only Meyer’s interests and that Cathey should seek other counsel. Cathey also alleged that Glover conspired with Meyer to fraudulently keep Cathey in the business relationship. A. The Verdict After a six-week trial in July 1999, the jury returned its verdict on twenty-seven questions. Regarding the claims against Meyer, it found: • Meyer fraudulently induced Cathey into written agreements on the four apartment complex projects. This fraud proximately caused $37,500 in damages. • Meyer fraudulently induced Cathey to provide services in connection with the refinancing of two of the four apartment complexes. This fraud proximately caused $35,000 in damages. • Meyer fraudulently induced Cathey to provide services regarding the Waco movie theater and Dallas condominium projects. This fraud proximately caused $150,000 in damages for the Waco project and $750,000 in damages for the Dallas project. $2,250,000 should be assessed against Meyer in exemplary damages for this fraud. • Cathey ratified and waived Meyer’s fraud that the jury found in all the above projects. • There was a relationship of trust and confidence between Meyer and Cathey (ie., Meyer had a fiduciary duty to Cathey) which existed prior to and apart from the Waco and Dallas projects, which relationship ended on August 13,1996. • Meyer breached his fiduciary duty to Cathey regarding the Waco and Dallas projects. This breach proximately caused $150,000 in damages for the Waco project and $750,000 in damages for the Dallas project. • Cathey knew or should have known on or before May 22, 1995, of the facts underlying Meyer’s breach of fiduciary duty. (The lawsuit was filed on May 22,1997.) B. Post-Verdict Motions and Orders All the parties filed post-verdict motions. Cathey filed a “Motion to Disregard Certain Jury Findings and Motion for Judgment.” Cathey asserted there was “no support in the evidence” for the jury’s findings that (a) Cathey ratified and waived fraud by Meyer and (b) Cathey knew or should have known about the facts giving rise to the breach of fiduciary duty claim over two years before filing suit. Specifically, he argued the following: 1. Ratification only bars a remedy of rescission in a breach-of-contract action, not damages in a fraud action. 2. Under the definition of ratification in the charge, the person defrauded must either (a) continue to accept some benefits after learning of the fraud, or (b) conduct himself so as to recognize the agreement as binding. Because Cathey received no benefits from and there was no consummated agreement on the Waco and Dallas projects, by definition he cannot have ratified fraud related to those two projects. 3. The question on ratification was improper because the jury was not asked if Cathey had full knowledge of the fraud, which, he asserted, is required for ratification. 4. There was no evidence Cathey intentionally surrendered any right to the foil benefit of his bargains with Meyer, which the instruction on waiver required the jury to find. 5. Waiver typically is asserted by a plaintiff in a breaeh-of-contract action when the defendant pleads the affirmative defense of fraud. It is not applicable here. 6. Based on the instructions to the jury on waiver, Cathey cannot have waived a known right regarding the Waco and Dallas projects because no agreement was ever consummated which would have established the right. 7. As with ratification, waiver only applies to the remedy of rescission in a breach-of-contract action, not to damages for fraud. 8. Cathey could not have known of Meyer’s breach of fiduciary duty regarding the Waco and Dallas projects on or before May 22, 1995, because those projects did not exist prior to June 1995. Meyer filed a thirty-five-page “Motion for Judgment Notwithstanding the Verdict and to Disregard Jury Findings and, in the Alternative, Motion for Judgment on the Verdict,” with 453 pages of attachments. He asserted: (a) there was legally insufficient evidence to support the fraud and breach-of-fiduciary-duty claims against Meyer; (b) even if there was legally sufficient evidence, recovery on the fraud claims is barred by the findings of ratification and waiver, and recovery on the breach-of-fiduciary-duty claim is barred by limitations; and (c) there was no evidence of proximate cause regarding the Dallas project, because any fiduciary duty Meyer had to'Cathey ended in 1996, long before the property was foreclosed in 1998 resulting in no profits. Specifically, he argued the following: 1. Regarding fraud and the written agreements pertaining to four apartment complexes, there was no evidence that when Meyer entered into the agreements, he intended to later reduce the profits through consulting fees. Therefore there was no material false misrepresentation. 2. The jury did not find that Cathey knew or should have known on or before May 22, 1993, of the facts underlying Meyer’s fraudulent acts. However, that finding should be disregarded because Cathey’s testimony conclusively established that the “global agreement” was formed in January 1993. And if the statute of limitations for fraud is four years, then because the lawsuit was filed on May 22, 1997, the fraud claims regarding the four apartment complexes are barred by limitations, because Cathey knew before May 22, 1993, that the “global agreement” was not being honored. 3. The evidence was legally insufficient to prove that Cathey’s damages (underpayments) under the four written agreements were proximately caused by any fraudulent inducement by Meyer at the time the agreements were entered into. 4. The evidence proved as a matter of law that Cathey was fully compensated for the Silverado Apartments, Polo Club Apartments, and Valley Ranch Apartments projects. 5. There was no evidence of damages for the Arbors Apartments project, because Cathey was to be compensated as a limited partner, not under a distribution-of-profits agreement. 6. As to the refinancing of the Silvera-do Apartments and Arbors Apartments: (a) the evidence proved as a matter of law that Cathey was not entitled to a bonus for his services; (b) there was no evidence that when the agreement for Cathey’s services was entered into, Meyer intended not to pay Cathey according to the agreement; (c) there is no evidence Cathey relied on a promise of a bonus when he performed services for refinancing; and (d) the evidence proved as a matter of law that there was no money left after closing from which a bonus could have been paid, and therefore Cathey failed to prove damages. 7. There was no evidence Cathey was entitled to compensation for work on the Waco and Dallas projects in addition to his salary, and therefore there was no evidence of damages for these projects. 8. There was no evidence that at the time of the formation of the agreements on the Waco and Dallas projects, Meyer intended not to pay Cathey. 9. Cathey’s fraud claims derive from the “global agreement” in 1993. Because the fraud claims are premised on a contract (the “global agreement”) that could not be performed in one year, the statute of frauds applies. Therefore, because there was no written agreement on the Waco and Dallas projects, the fraud claims pertaining to them fail. 10.The damages question for fraud pertaining to the Waco and Dallas projects asked about benefit-of-the-bargain damages. However, the liability question for fraud asked whether Meyer fraudulently induced Cathey to provide services for which he was not fully compensated. Therefore, the damages question should have asked about the value of those services, not benefit-of-the-bargain damages. Because it did not, the proper measure of damages was not used, and damages are not recoverable. 11. Cathey’s damages for fraud on the Dallas project were derived from a twenty-percent interest in any profits distributed by the limited partnership which developed that project. Because the Dallas project was foreclosed on, the partnership never made any profit, and therefore as a matter of law Cathey has not proved his entitlement to any damages. 12. The evidence is legally insufficient that Meyer had an informal fiduciary duty to Cathey. 13. Cathey’s damages for breach of fiduciary duty on the Dallas project were derived from a twenty-percent interest in any profits distributed by the limited partnership which developed that project. Because the Dallas project was foreclosed on, the partnership never made any profit. In addition, the jury found that the fiduciary relationship ended on August 13, 1996, long before the property was foreclosed on. Therefore as a matter of law Cathey has not proved his entitlement to any damages. 14. There is no clear and convincing evidence that Meyer defrauded Cathey on the Waco and Dallas projects, and therefore exemplary damages are not recoverable. Also, exemplary damages are capped under the Civil Practice and Remedies Code. 15. The jury's findings of ratification and waiver on all the fraud claims entitled Meyer to a take-nothing judgment on the verdict against Cathey. 16. The jury’s finding on limitations, i.e., that Cathey knew or should have known of the facts underlying the breach of fiduciary duty two years or more before the date the lawsuit was filed, entitles Meyer to a take-nothing judgment on the verdict against Cathey. The trial court granted Meyer’s motion and denied Cathey’s motion. The trial court signed a take-nothing judgment in favor of Meyer without specifying on what grounds it was based. We sustain the judgment of a trial court if it is correct on any theory of law applicable to the case and supported by the record, regardless of whether the trial court gives the correct legal reason for the judgment, or whether it gives any reason at all. See Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939). C. Post-Judgment Motions Cathey filed a motion for new trial claiming, inter alia, factually insufficient evidence to support the jury’s findings of ratification and waiver. The motion also reiterated his objections to the charge on ratification and waiver, i.e., that the defenses do not apply when damages are sought in a claim for fraud and that the definitions in the jury instructions were erroneous. Cathey also filed a motion to modify, correct, or reform the judgment. This motion addressed the proper limitations period for breach of fiduciary duty and urged the court to render judgment on that claim for Cathey. These motions were overruled by operation of law. Meyer did not file a motion for new trial. Several weeks after judgment, Meyer filed a motion for sanctions claiming that Cathey lied in a deposition and in responses to requests for admissions to inquiries about his background and credentials, and Meyer had to expend thousands of dollars discovering the true facts so he could present them at trial. The trial court granted the motion and awarded close to $26,000 as sanctions. III. ISSUES ON APPEAL Cathey appeals on five issues as to Meyer: 1. The trial court erred in rendering a take-nothing judgment in favor of Meyer because: (a) there was more than a scintilla of evidence to support the jury’s findings regarding Cathey’s fraud and breach of fiduciary duty claims against Meyer; (b) the jury’s finding that Cathey did not know of the fraud more than four years before the lawsuit was filed should not have been disregarded; (c) the statute of frauds does not bar recovery for the fraud claims pertaining to the four projects which were not in writing, because Cathey did not seek recovery for breach of contract; and (d) the foreclosure on the Dallas project does not preclude the recovery of damages. 2. The trial court erred in finding that “ratification” barred recovery on all the fraud claims against Meyer because: (a) there was no evidence that Cathey ratified Meyer’s fraudulent acts; (b) the definition of ratification in the charge “essentially defines [the Waco and Dallas projects] out of the ratification defense,” because an agreement on Cathey’s benefits was never consummated between him and Meyer; and (c) ratification is inapplicable in this case, because normally it applies only when the remedy of rescission of a contract is sought, and it does not apply when, as here, a party merely continues to honor the terms of a contract after he learns he was fraudulently induced to enter into it. 3. Under the facts of this case, there is no difference in the affirmative defenses of “ratification” and “waiver.” Therefore, for the same reasons that apply to “ratification,” the trial court erred in finding that “waiver” barred recovery on all the fraud claims against Meyer. 4. The trial court erred in finding that limitations bars the recovery against Meyer for breach of fiduciary duty, because a four-year rather than a two-year limitations period applies. Even if the period was two years, the evidence is undisputed that the Waco and Dallas projects did not commence until after the two-year period began. 5. The trial court abused its discretion in awarding sanctions for discovery abuse. Meyer asserts as cross-issues: (1) the evidence is legally and factually insufficient to support the jury’s findings in Cathey’s favor, and (2) the trial court erred in its instructions to the jury regarding the breach-of-fiduciary-duty question. IV. FRAUD CLAIMS Cathey presents three issues, two with multiple sub-parts, concerning his fraud claims against Meyer. Each advances a reason why the trial court erred in granting Meyer’s post-trial motions. Because Cathey’s issues on ratification and waiver, if overruled, would bar recovery as to all or part of the fraud claims, we will discuss those issues first. Next, his issue concerning the statute of frauds, which relates to only the Waco and Dallas projects, will be discussed. Then, his issues concerning the legal sufficiency of the evidence, i.e., that the court erred if it granted the take-nothing judgment on the basis that there was no evidence to support the jury’s findings in Cathey’s favor, will be discussed. Finally, we will discuss his argument about exemplary damages. Meyer’s cross-issues that the evidence supporting the jury’s findings favorable to Cathey is legally and factually insufficient occupy one sentence in his fifty-nine-page brief. There are no citations to the reporter’s record. Because the trial court had to find that no evidence supports the jury’s findings in Cathey’s favor before it could disregard those findings (if that was the basis for the judgment), Meyer’s cross-issues on legal sufficiency are, of necessity, resolved by our discussion of Cath-ey’s issues on legal sufficiency. However, Meyer has failed to brief his cross-issues on factual insufficiency. The rules of appellate procedure require that “[t]he brief must contain a clear and concise argument for the contentions made, with appropriate citations to authority and to the record.” Tex.R.App. P. 38.1(h), 38.2(a)(1). This is especially important in a case such as this with a reporter’s record consisting of many thousands of pages covering a six-week trial. By his failure, Meyer has waived the cross-issues on factual sufficiency. E.g. Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.); Sisters of Charity of the Incarnate Word v. Gobert, 992 S.W.2d 25, 31 (Tex.App.-Houston [1st Dist.] 1997, no pet.); Leyva v. summer of 1996, when his relationship with Meyer abruptly ended. Again, ratification and waiver require some voluntary action after discovery of the fraud which either relinquishes a right or validates the fraud. The evidence conclusively shows that Cathey performed services on these four projects before he realized Meyer did not intend to fully honor his promises about compensation, ie., before Cathey learned of the fraud. Juliette Fowler, 793 S.W.2d at 666 n. 9. After he learned of it, the evidence does not show specific acts of relinquishment or validation. Although there is evidence that, during the course of his numerous business dealings with Meyer over the years, Cathey knew he had not gotten the full benefit of some of his bargains with Meyer in the past, this does not establish that, during the course of the projects, Cathey became aware of Meyer’s fraud and then performed acts of ratification or waiver. The evidence shows that, regarding these four different projects, Cathey was made promises of financial rewards in exchange for services, he performed services, and the full measure of the rewards promised was not given. In each instance, the jury found that fraud had occurred. We find no more than a scintilla of evidence that Cathey intentionally relinquished his rights under these four agreements or intentionally validated the fraud. Id. Therefore, there is legally insufficient evidence to support the jury’s findings of ratification and waiver regarding these four projects. 6. Conclusion There is legally insufficient evidence of ratification and waiver regarding any of the eight fraud claims. The trial court erred if it rendered a take-nothing judgment based on these affirmative defenses. B. Statute of Frauds Meyer argued in his post-trial motion that because Cathey’s fraud claims derive from the “global agreement” in 1993, a contract that could not be performed in one year, the statute of frauds applies. He says because there was no written agreement on the Waco and Dallas projects which were begun in 1995, the fraud claims pertaining to them must fail. Meyer attempts to characterize the agreements Cathey claimed he had with Meyer on the Waco and Dallas projects as dating back to 1993 when the “global agreement” was formed. He asserts that because the “global agreement” was not intended to be performed in one year, Cathey’s fraud claims fail under the statute of frauds. Tex. Bus. & Com.Code Ann. § 26.01(b)(6) (Vernon 2002); Haase v. Glazner, 62 S.W.3d 795, 799 (Tex.2001) (Benefit-of-the-bargain damages under a claim of fraudulent inducement into a contract are not recoverable if a claim of breach of the contract would fail under the statute of frauds.). But the Waco and Dallas projects were not begun until 1995. There was evidence that the two agreements were “new” agreements, although some of their terms regarding Cathey’s compensation may have derived from the “global agreement.” In addition, the evidence does not establish that either project could not be performed in one year, and there was no jury finding on the issue. Therefore, there is legally insufficient evidence to support application of the statute of frauds, and the trial court erred if it rendered a take-nothing judgment based on this affirmative defense. C. Legal Sufficiency of the Evidence for the Fraud Claims; Jury Charge Issue Cathey asserts on appeal that there was some evidence to support the jury’s findings of fraud regarding each of the eight projects, and therefore the trial court erred in granting Meyer’s motion for judgment notwithstanding the verdict or to disregard jury findings, if that was the basis for the judgment. 1. Standard of Review We review the granting of a motion for judgment notwithstanding the verdict or a motion to disregard a jury finding in the light most favorable to the finding, considering only the evidence and inferences which support the finding, and indulging every reasonable inference in its favor. Navarette v. Temple Independent Sch. Dist. 706 S.W.2d 308, 309 (Tex.1986); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987). We review for whether there is more than a mere scintilla of evidence to support the jury’s finding. Basin Operating Co. v. Valley Steel Products, 620 S.W.2d 773, 776 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r.e.); see Farias v. Laredo Nat’l Bank, 985 S.W.2d 465, 470 (Tex.App.-San Antonio 1997, no writ); Quinn, 726 S.W.2d at 19. “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Burroughs Wellcome, 907 S.W.2d at 499. 2. Four Written Agreements First, Meyer’s post-trial motion argued that the evidence proved as a matter of law that Cathey knew prior to the execution of the four written agreements that Meyer was not going to honor the “global agreement.” This argument misses the point, because the fraudulent misrepresentation Cathey undertook to prove is the non-disclosure by Meyer about the consulting fees which affected the net profits under the four written agreements. Next, Meyer argued there was no evidence that when he entered into these four agreements, he intended to later divert profits through consulting fees. “Since intent to defraud is not susceptible to direct proof, it invariably must be proven by circumstantial evidence.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986) (citations omitted). “ ‘Slight circumstantial evidence’ of fraud, when considered with the breach of promise to perform, is sufficient to support a finding of fraudulent intent.” Id. (citing Maulding v. Niemeyer, 241 S.W.2d 733, 738 (Tex.Civ.App.-El Paso 1951) (orig.proceeding)); see Johnson & Higgins of Texas v. Kenneco Energy, 962 S.W.2d 507, 527 (Tex.1998). There is evidence that, without telling Cathey, Meyer paid himself consulting fees which had the effect of denying Cathey income derived from profits from the apartment complexes. Construing the evidence in the light most favorable to Cathey, considering only the evidence and inferences which support the finding, and indulging every reasonable inference in its favor, we find that there was more than a scintilla of evidence from which the jury could have concluded that, at the time he entered into the four written agreements, Meyer intended to reduce or eliminate the profits by payment to himself of consulting fees. Navarette, 706 S.W.2d at 309. Continuing to address proof of the elements of fraud, Meyer asserted in his post-trial motion that the evidence was 4. There was no evidence Cathey intentionally surrendered any right to the full benefit of his bargains with Meyer, which the instruction on waiver required the jury to find. 5. Waiver typically is asserted by a plaintiff in a breach-of-contract action when the defendant pleads the affirmative defense of fraud. It is not applicable here. 6. Based on the instructions to the jury on waiver, Cathey cannot have waived a known right regarding the Waco and Dallas projects because no agreement was ever consummated which would have established the right. 7. As with ratification, waiver only applies to the remedy of rescission in a breach-of-contract action, not to damages for fraud. 8. Cathey could not have known of Meyer’s breach of fiduciary duty regarding the Waco and Dallas projects on or before May 22, 1995, because those projects did not exist prior to June 1995. Meyer filed a thirty-five-page “Motion for Judgment Notwithstanding the Verdict and to Disregard Jury Findings and, in the Alternative, Motion for Judgment on the Verdict,” with 458 pages of attachments. He asserted: (a) there was legally insufficient evidence to support the fraud and breach-of-fiduciary-duty claims against Meyer; (b) even if there was legally sufficient evidence, recovery on the fraud claims is barred by the findings of ratification and waiver, and recovery on the breach-of-fiduciary-duty claim is barred by limitations; and (c) there was no evidence of proximate cause regarding the Dallas project, because any fiduciary duty Meyer had to'Cathey ended in 1996, long before the property was foreclosed in 1998 resulting in no profits. Specifically, he argued the following: 1. Regarding fraud and the written agreements pertaining to four apartment complexes, there was no evidence that when Meyer entered into the agreements, he intended to later reduce the profits through consulting fees. Therefore there was no material false misrepresentation. 2. The jury did not find that Cathey knew or should have known on or before May 22, 1993, of the facts ■underlying Meyer’s fraudulent acts. However, that finding should be disregarded because Cathey’s testimony conclusively established that the “global agreement” was formed in January 1998. And if the statute of limitations for fraud is four years, then because the lawsuit was filed on May 22, 1997, the fraud claims regarding the four apartment complexes are barred by limitations, because Cathey knew before May 22, 1993, that the “global agreement” was not being honored. 3. The evidence was legally insufficient to prove that Cathey’s damages (underpayments) under the four written agreements were proximately caused by any fraudulent inducement by Meyer at the time the agreements were entered into. 4. The evidence proved as a matter of law that Cathey was fully compensated for the Silverado Apartments, Polo Club Apartments, and Valley Ranch Apartments projects. 5. There was no evidence of damages for the Arbors Apartments project, because Cathey was to be compensated as a limited partner, not under a distribution-of-profits agreement. 6. As to the refinancing of the Silvera-do Apartments and Arbors Apartments: (a) the evidence proved as a matter of law that Cathey was not entitled to a bonus for his services; (b) there was no evidence that when the agreement for Cathey’s services was entered into, Meyer intended not to pay Cathey according to the agreement; (c) there is no evidence Cathey relied on a promise of a bonus when he performed services for refinancing; and (d) the evidence proved as a matter of law that there was no money left after closing from which a bonus could have been paid, and therefore Cathey failed to prove damages. 7. There was no evidence Cathey was entitled to compensation for work on the Waco and Dallas projects in addition to his salary, and therefore there was no evidence of damages for these projects. 8. There was no evidence that at the time of the formation of the agreements on the Waco and Dallas projects, Meyer intended not to pay Cathey. 9. Cathey’s fraud claims derive from the “global agreement” in 1993. Because the fraud claims are premised on a contract (the “global agreement”) that could not be performed in one year, the statute of frauds applies. Therefore, because there was no written agreement on the Waco and Dallas projects, the fraud claims pertaining to them fail. 10.The damages question for fraud pertaining to the Waco and Dallas projects asked about benefit-of-the-bargain damages. However, the liability question for fraud asked whether Meyer fraudulently induced Cathey to provide services for which he was not fully compensated. Therefore, the damages question should have asked about the value of those services, not benefit-of-the-bargain damages. Because it did not, the proper measure of damages was not used, and damages are not recoverable. 11. Cathey’s damages for fraud on the Dallas project were derived from a twenty-percent interest in any profits distributed by the limited partnership which developed that project. Because the Dallas project was foreclosed on, the partnership never made any profit, and therefore as a matter of law Cathey has not proved his entitlement to any damages. 12. The evidence is legally insufficient that Meyer had an informal fiduciary duty to Cathey. 13. Cathey’s damages for breach of fiduciary duty on the Dallas project were derived from a twenty-percent interest in any profits distributed by the limited partnership which developed that project. Because the Dallas project was foreclosed on, the partnership never made any profit. In addition, the jury found that the fiduciary relationship ended on August 13, 1996, long before the property was foreclosed on. Therefore as a matter of law Cathey has not proved his entitlement to any damages. 14. There is no clear and convincing evidence that Meyer defrauded Cathey on the Waco and Dallas projects, and therefore exemplary damages are not recoverable. Also, exemplary damages are capped under the Civil Practice and Remedies Code. 15. The jury’s findings of ratification and waiver on all the fraud claims entitled Meyer to a take-nothing judgment on the verdict against Cathey. 16. The jury’s finding on limitations, i.e., that Cathey knew or should have known of the facts underlying the breach of fiduciary duty two years or more before the date the lawsuit was filed, entitles Meyer to a take-nothing judgment on the verdict against Cathey. The trial court granted Meyer’s motion and denied Cathey’s motion. The trial court signed a take-nothing judgment in favor of Meyer without specifying on what grounds it was based. We sustain the judgment of a trial court if it is correct on any theory of law applicable to the case and supported by the record, regardless of whether the trial court gives the correct legal reason for the judgment, or whether it gives any reason at all. See Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939). C. Post-Judgment Motions Cathey filed a motion for new trial claiming, inter alia, factually insufficient evidence to support the jury’s findings of ratification and waiver. The motion also reiterated his objections to the charge on ratification and waiver, i.e., that the defenses do not apply when damages are sought in a claim for fraud and that the definitions in the jury instructions were erroneous. Cathey also filed a motion to modify, correct, or reform the judgment. This motion addressed the proper limitations period for breach of fiduciary duty and urged the court to render judgment on that claim for Cathey. These motions were overruled by operation of law. Meyer did not file a motion for new trial. Several weeks after judgment, Meyer filed a motion for sanctions claiming that Cathey lied in a deposition and in responses to requests for admissions to inquiries about his background and credentials, and Meyer had to expend thousands of dollars discovering the true facts so he could present them at trial. The trial court granted the motion and awarded close to $26,000 as sanctions. III. ISSUES ON APPEAL Cathey appeals on five issues as to Meyer: 1. The trial court erred in rendering a take-nothing judgment in favor of Meyer because: (a) there was more than a scintilla of evidence to support the jury’s findings regarding Cathey’s fraud and breach of fiduciary duty claims against Meyer; (b) the jury’s finding that Cathey did not know of the fraud more than four years before the lawsuit was filed should not have been disregarded; (c) the statute of frauds does not bar recovery for the fraud claims pertaining to the four projects which were not in writing, because Cathey did not seek recovery for breach of contract; and (d) the foreclosure on the Dallas project does not preclude the recovery of damages. 2. The trial court erred in finding that “ratification” barred recovery on all the fraud claims against Meyer because: (a) there was no evidence that Cathey ratified Meyer’s fraudulent acts; (b) the definition of ratification in the charge “essentially defines [the Waco and Dallas projects] out of the ratification defense,” because an agreement on Cathey’s benefits was never consummated between him and Meyer; and (c) ratification is inapplicable in this ease, because normally it applies only when the remedy of rescission of a contract is sought, and it does not apply when, as here, a party merely continues to honor the terms of a contract after he learns he was fraudulently induced to enter into it. 3. Under the facts of this case, there is no difference in the affirmative defenses of “ratification” and “waiver.” Therefore, for the same reasons that apply to “ratification,” the trial court erred in finding that “waiver” barred recovery on all the fraud claims against Meyer. 4. The trial court erred in finding that limitations bars the recovery against Meyer for breach of fiduciary duty, because a four-year rather than a two-year limitations period applies. Even if the period was two years, the evidence is undisputed that the Waco and Dallas projects did not commence until after the two-year period began. 5. The trial court abused its discretion in awarding sanctions for discovery abuse. Meyer asserts as cross-issues: (1) the evidence is legally and factually insufficient to support the jury’s findings in Cathey’s favor, and (2) the trial court erred in its instructions to the jury regarding the breach-of-fiduciary-duty question. IV. FRAUD CLAIMS Cathey presents three issues, two with multiple sub-parts, concerning his fraud claims against Meyer. Each advances a reason why the trial court erred in granting Meyer’s post-trial motions. Because Cathey’s issues on ratification and waiver, if overruled, would bar recovery as to all or part of the fraud claims, we will discuss those issues first. Next, his issue concerning the statute of frauds, which relates to only the Waco and Dallas projects, will be discussed. Then, his issues concerning the legal sufficiency of the evidence, ie., that the court erred if it granted the take-nothing judgment on the basis that there was no evidence to support the jury’s findings in Cathey’s favor, will be discussed. Finally, we will discuss his argument about exemplary damages. Meyer’s cross-issues that the evidence supporting the jury’s findings favorable to Cathey is legally and factually insufficient occupy one sentence in his fifty-nine-page brief. There are no citations to the reporter’s record. Because the trial court had to find that no evidence supports the jury’s findings in Cathey’s favor before it could disregard those findings (if that was the basis for the judgment), Meyer’s cross-issues on legal sufficiency are, of necessity, resolved by our discussion of Cath-ey’s issues on legal sufficiency. However, Meyer has failed to brief his cross-issues on factual insufficiency. The rules of appellate procedure require that “[t]he brief must contain a clear and concise argument for the contentions made, with appropriate citations to authority and to the record.” Tex.R.App. P. 38.1(h), 38.2(a)(1). This is especially important in a case such as this with a reporter’s record consisting of many thousands of pages covering a six-week trial. By his failure, Meyer has waived the cross-issues on factual sufficiency. E.g. Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.); Sisters of Charity of the Incarnate Word v. Gobert, 992 S.W.2d 25, 31 (Tex.App.-Houston [1st Dist.] 1997, no pet.); Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex.App.-El Paso 1997, no writ). A. Ratification and Waiver The jury found that Meyer defrauded Cathey on eight projects — the acquisition of the four apartment complexes, the refinancing of two apartment complexes, and the Waco and Dallas projects. However, it also found that Cathey ratified and waived the fraud. Ratification and waiver are affirmative defenses which Meyer pled. Tex.R. Crv. P. 94. Ratification and waiver have extensive application in the law. One application is their assertion as affirmative defenses. It has been said that ratification and waiver are opposite sides of the same coin: These two terms have been used interchangeably many times. ... [Ratification and waiver invoke the same factual elements: (1) There must be full knowledge of the known right which vitiates a prior act, and (2) there must be an intentional relinquishment of the known right, or intentional recognition of the prior act, depending upon the user’s choice of words. While to relinquish is the gist of “waiver” and to approve is the gist of “ratification,” to relinquish a known right is to give validity to the prior act and to approve a prior act is to relinquish a known right. Caldwell v. Callender Lake Prop. Owners Imp. Ass’n, 888 S.W.2d 903, 910 (Tex.App.-Texarkana 1994, no writ) (quoting Jordan v. City of Beaumont, 337 S.W.2d 115, 118 (Tex.Civ.App.-Beaumont 1960, writ ref'd n.r.e.)). These are ordinarily questions of fact; however, they can involve questions of law if the facts are clearly established. Id. 1. Ratification A party fraudulently induced into a contract can under some circumstances ratify the contract and thereby forego a claim for damages for fraud. Fortune Production Co. v. Conoco, Inc., 52 S.W.3d 671, 676 (Tex.2000). In Fortum Production, four producers of natural gas sued Conoco claiming that when contracts for purchase of their gas by Conoco were being renegotiated, Conoco told them that the part of the product called “residue gas” was no longer needed by Conoco to supply its regular customers, and so the “residue gas” would have to be sold on the “spot market” at a substantially reduced rate. The producers believed this representation and agreed to significantly lower prices than they had agreed to in previous contracts. In fact, what Conoco told the producers was not true, and Conoco knew it. Some of the producers entered into written contracts with Conoco, binding them to sell gas for a specific term of years at a set price; two producers simply continued to deliver gas to Conoco without a written agreement and accepted the price Conoco paid. There was a factual dispute over when the producers learned Conoco had fraudulently induced them into the contracts. Nevertheless, four years after the initial events, they sued. Conoco alleged that the producers had ratified any fraud because they had full knowledge of it, yet continued to do business under the pricing system Conoco offered. A party may affirm a contract that has been induced by fraud, in such a way that damages are foreclosed. Id. at 677. “The question ... is largely one of intent. Hence acts done in affirmance of the contract can amount to a waiver of the fraud only where they are done with full knowledge of the fraud and of all material facts, and with the intention, clearly manifested, of abiding by the contract and waiving all right to recover for the deception. Acts which, although in affirmance of the contract, do not indicate any intention to waive the fraud, cannot be held to operate as a waiver.” Id. (quoting Kennedy v. Bender, 104 Tex. 149, 135 S.W. 524, 525 (Tex.1911)). For example, accepting benefits under the terms of the fraudulent representation after the fraud is known can bar damages if the nature of the conduct constituting acceptance shows an intentional relinquishment of a known right. Id. (citing Spellman v. American Universal Investment Co., 687 S.W.2d 27, 31-32 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.)). However, there is an inherent difficulty in stating a bright-line rule about what constitutes ratification, and the determination is made case by case. Id. at 678. The Court held that as a matter of law, the acceptance of the contracted-for price after they learned of the fraud, by the producers with written contracts, did not result in their ratification of the fraud, and they could sue for damages. They had a continuing contractual obligation to sell gas to Conoco, and honoring that and receiving the contracted-for price was not a ratification. Id. at 679. However, the two remaining producers, by continuing to sell to Conoco without obligation after learning of the fraud and accepting the price offered by Conoco, ratified the fraud and were barred from recovering damages accruing after the ratification. Id. at 680. “When they delivered their gas after they knew of Conoco’s fraud, with no obligation to continue deliveries, they were no longer relying on misrepresentations.” Id. at 679. By their conduct “[they] entered into a new series of agreements with full knowledge of all material facts and of the prices that they were accepting.” Id. at 680. 2. Waiver “Waiver” is the intentional relinquishment of a known right. United States Fidelity & Guar. Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971); Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958); Cal-Tex Lumber Co. v. Owens Handle Co., 989 S.W.2d 802, 812 (Tex.App.-Tyler 1999, no pet.). The right may be conferred by law or contract. Culbertson, 308 S.W.2d at 865. “Intention” may be either expressly made or inferred from conduct that is inconsistent with an intent to claim the right. Id.; Owens Handle, 989 S.W.2d at 812; Ferrantello v. Paymaster Feed Mills, 336 S.W.2d 644, 647 (Tex.Civ.App.-Dallas 1960, writ ref'd n.r.e.). Cathey contends that “ratification” and “waiver” should not be analyzed separately. The jury was instructed in separate questions as follows: Ratification occurs when a person, induced by fraud to enter into an agreement, continues to accept benefits under that agreement after he becomes aware of the fraud or breach, or if he conducts himself so as to recognize the agreement as binding. Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right. The Supreme Court in Fortune Production declined to express “an opinion on whether a jury issue should be framed in terms of ratification, affirmance, or waiver,” noting without citation that “[c]ourts and commentators have variously used the terms ‘waiver,’ ‘ratification,’ and ‘affir-mance’ in discussing the legal effect of a party’s actions after it learns that its contract was induced by fraud.” Fortune Production, 52 S.W.3d at 680. Here, because the jury considered the same facts in deciding each question, and because of the commonalities in the definitions of the terms in the charge, we will analyze the jury’s affirmative answers to the ratification and waiver questions as “two sides of the same coin,” i.e., either the evidence was legally sufficient to support both or it was legally insufficient to support either. Jordan, 337 S.W.2d at 118. 3. Standard of Review Cathey’s issue on appeal concerns whether the trial court was justified in finding the evidence legally sufficient to support the jury’s affirmative findings on ratification and waiver, if that was the basis of the trial court’s judgment. When we conduct a review of whether the evidence is legally sufficient, we consider only that evidence and the inferences therefrom which support the jury’s findings, considered in the light most favorable to the findings, and disregard contrary evidence and inferences. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). We can find the evidence legally insufficient if: (1) there is a complete absence of evidence for the findings, (2) there is evidence to support the findings, but rules of law or evidence bar the court from giving any weight to the evidence, (3) there is no more than a mere scintilla of evidence to support the findings, or (4) the evidence conclusively establishes the opposite of the findings. Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)). “More than a scintilla of evidence exists where the evidence supporting the findings, as a whole, 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Burroughs Wellcome, 907 S.W.2d at 499 (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). If the evidence is so weak as to do no more than create a mere surmise or suspicion of the finding’s existence, the effect is that there is legally-insufficient evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex.1995). Cathey does not complain on appeal about the wording of the charge, and so we will not review any objection to the charge that he made at trial. Tex.R.App. P. 38.1(e). He does, however, assert that the findings on ratification and waiver are not supported by legally-sufficient evidence and that the trial court erred to the extent it relied on these findings. Accordingly, we review the sufficiency issues under the charge as given, regardless of whether the definitions of ratification and waiver were correctly submitted. Tex.R. Civ. P. 274; Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (“It is the court’s charge, not some other unidentified law, that measures the sufficiency of the evidence.”). In Green Intern., Inc. v. Solis, both the plaintiff and the defendant prevailed on claims against the other, and the jury awarded both parties attorney’s fees. Green v. Solis, 951 S.W.2d 384, 389-90 (Tex.1997). Green complained that, as a matter of law, attorney’s fees could not be recovered for some of Solis’s claims. Id. However, the jury charge failed to segregate the claims for which attorney’s fees were recoverable from those for which they were not, and Green had failed to object. Id. The Court said that without an objection, as long as the jury’s finding was supported by the evidence and material, the award must stand. Id.; see also Allen v. American National Insurance Co., 380 S.W.2d 604, 609 (Tex.1964) (An unobject-ed-to defective submission of a theory of recovery or defense waives a complaint of error concerning the verdict.); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304 (Tex.App.-Houston [14th Dist.] 1995, no writ) (Failure to object to omissions from the charge estops a party from complaining on appeal.). By not raising his objections to the wording of the charge as issues on appeal, Cathey has waived them. We turn to his sufficiency issues. 4. Four Written Agreements Under Fortune Production, any profits from which Cathey should have derived compensation that were unilaterally and thus fraudulently taken by Meyer before Cathey learned of the fraud cannot be ratified, because ratification requires knowledge of the fraud. Fortune Production, 52 S.W.3d at 680. The jury was charged under this theory. Furthermore, under Fortune Production, Cathey’s continued dealings with Meyer under the terms of the contracts are not a ratification, because a party, such as Cathey, who is contractually bound to continue providing services and contractually entitled to continue to receive compensation does not thereby ratify fraudulent conduct. Id. at 679. However, this part of the Fortune holding was omitted from the charge without objection. Therefore, Cathey cannot rely on the latter holding in Fortune Production, and we will review the evidence under the charge as given. Osterberg, 12 S.W.3d at 55. Cathey and Meyer had written agreements on the four apartment-complex projects. Before Cathey could be said to have ratified Meyer’s alleged fraudulent misrepresentation, ie., his non-disclosure that he intended to reduce the profits from the complexes through consultant fees, Cathey would first have to learn about Meyer’s fraud. The evidence at trial was that Cathey had access to the financial records kept by Meyer; but it was not shown that Cathey reviewed the records and learned of Meyer’s actions. Therefore, because the charge required actual knowledge by Cathey, the evidence of ratification and waiver regarding the four apartment-complex projects is legally insufficient to support the jury’s verdict. 5. Two Reñnancing Projects, and the Waco and Dallas Projects The fraud Cathey alleged regarding the four oral agreements was that Meyer promised specific financial rewards without intending to pay them. In 1995, Cathey worked on the refinancing of the Silverado Apartments and the Arbors Apartments. Based on the oral “global agreement,” Cathey claimed that Meyer misrepresented that Cathey would get a $25,000 bonus for any project he helped refinance. As for the Waco and Dallas projects, which commenced in approximately June 1995, Cath-ey claimed Meyer misrepresented that in exchange for Cathey’s services, he would receive fifteen percent of the profits from the Waco project and ten percent of the profits from the interest Meyer owned in the Dallas project. Cathey participated in these two projects in some form until the summer of 1996, when his relationship with Meyer abruptly ended. Again, ratification and waiver require some voluntary action after discovery of the fraud which either relinquishes a right or validates the fraud. The evidence conclusively shows that Cathey performed services on these four projects before he realized Meyer did not intend to fully honor his promises about compensation, i.e., before Cathey learned of the fraud. Juliette Fowler, 793 S.W.2d at 666 n. 9. After he learned of it, the evidence does not show specific acts of relinquishment or validation. Although there is evidence that, during the course of his numerous business dealings with Meyer over the years, Cathey knew he had not gotten the full benefit of some of his bargains with Meyer in the past, this does not establish that, during the course of the projects, Cathey became aware of Meyer’s fraud and then performed acts of ratification or waiver. The evidence shows that, regarding these four different projects, Cathey was made promises of financial rewards in exchange for services, he performed services, and the full measure of the rewards promised was not given. In each instance, the jury found that fraud had occurred. We find no more than a scintilla of evidence that Cathey intentionally relinquished his rights under these four agreements or intentionally validated the fraud. Id. Therefore, there is legally insufficient evidence to support the jury’s findings of ratification and waiver regarding these four projects. 6. Conclusion There is legally insufficient evidence of ratification and waiver regarding any of the eight fraud claims. The trial court erred if it rendered a take-nothing judgment based on these affirmative defenses. B. Statute of Frauds Meyer argued in his post-trial motion that because Cathey’s fraud claims derive from the “global agreement” in 1993, a contract that could not be performed in one year, the statute of frauds applies. He says because there was no written agreement on the Waco and Dallas projects which were begun in 1995, the fraud claims pertaining to them must fail. Meyer attempts to characterize the agreements Cathey claimed he had with Meyer on the Waco and Dallas projects as dating back to 1993 when the “global agreement” was formed. He asserts that because the “global agreement” was not intended to be performed in one year, Cathey’s fraud claims fail under the statute of frauds. Tex. Bus. & Com.Code Ann. § 26.01(b)(6) (Vernon 2002); Haase v. Glazner, 62 S.W.3d 795, 799 (Tex.2001) (Benefit-of-the-bargain damages under a claim of fraudulent inducement into a contract are not recoverable if a claim of breach of the contract would fail under the statute of frauds.). But the Waco and Dallas projects were not begun until 1995. There was evidence that the two agreements were “new” agreements, although some of their terms regarding Cathey’s compensation may have derived from the “global agreement.” In addition, the evidence does not establish that either project could not be performed in one year, and there was no jury finding on the issue. Therefore, there is legally insufficient evidence to support application of the statute of frauds, and the trial court erred if it rendered a take-nothing judgment based on this affirmative defense. C. Legal Sufficiency of the Evidence for the Fraud Claims; Jury Charge Issue Cathey asserts on appeal that there was some evidence to support the jury’s findings of fraud regarding each of the eight projects, and therefore the trial court erred in granting Meyer’s motion for judgment notwithstanding the verdict or to disregard jury findings, if that was the basis for the judgment. 1. Standard of Review We review the granting of a motion for judgment notwithstanding the verdict or a motion to disregard a jury finding in the light most favorable to the finding, considering only the evidence and inferences which support the finding, and indulging every reasonable inference in its favor. Navarette v. Temple Independent Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987). We review for whether there is more than a mere scintilla of evidence to support the jury’s finding. Basin Operating Co. v. Valley Steel Products, 620 S.W.2d 773, 776 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r.e.); see Farias v. Laredo Nat’l Bank, 985 S.W.2d 465, 470 (Tex.App.-San Antonio 1997, no writ); Quinn, 726 S.W.2d at 19. “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Burroughs Wellcome, 907 S.W.2d at 499. 2. Four Written Agreements First, Meyer’s post-trial motion argued that the evidence proved as a matter of law that Cathey knew prior to the execution of the four written agreements that Meyer was not going to honor the “global agreement.” This argument misses the point, because the fraudulent misrepresentation Cathey undertook to prove is the non-disclosure by Meyer about the consulting fees which affected the net profits under the four written agreements. Next, Meyer argued there was no evidence that when he entered into these four agreements, he intended to later divert profits through consulting fees. “Since intent to defraud is not susceptible to direct proof, it invariably must be proven by circumstantial evidence.” Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986) (citations omitted). “ ‘Slight circumstantial evidence’ of fraud, when consider