Full opinion text
OPINION CHARLES W. SEYMORE, Justice. This is a double appeal involving shareholders’ ownership of two closely held corporations, breach of fiduciary duty, breach of contract, and attorney’s fees. In the first appeal, consisting of 37 issues (some overlapping and some containing numerous subparts), Michael T. Willis, Francie Willis, Urban Retreat of Houston, Inc., and Willis Hite Enterprises, Inc. seek reversal of a judgment awarding Dan Don-nelly $1.7 million for breach of contract, $1.7 million for breach of fiduciary duty, and a constructive trust on Urban Retreat stock and realty. First, we reverse and remand the breach of contract claim as more specifically delineated in this opinion because the trial court submitted an improper measure of damages. Because liability was contested, we may not reverse solely for a new trial on damages. Second, we affirm the judgment for breach of fiduciary duty. However, because the constructive trust partially provides a double recovery for breach of fiduciary duty and partially secures damages for breach of contract, which we are reversing and remanding, we remand for an election of remedies pertaining to breach of fiduciary duty and reverse that portion of the constructive trust relating to breach of contract. In the second appeal, Dan Donnelly contends that the trial court erroneously awarded $400,000 in attorney’s fees in connection with his $26,982.58 default on a loan made to him by Mike Willis. We reverse and remand for a determination of properly segregated and reasonable attorney’s fees incurred in prosecuting the defaulted loan. Background A. Urban Retreat Urban Retreat, a Houston day spa, had its genesis in 1989 through the planning of its visionary, Mike Willis, a Houston businessman. He and a hired consultant, Richard Hite, located a site for the spa adjacent to an exclusive neighborhood, negotiated a lease for the property, and obtained a loan to renovate the facility. Willis also formed two corporations, Urban Retreat of Houston, Inc. (the day spa, hereinafter “URB”) and Willis Hite Enterprises, Inc. (envisioned as a management business for a chain of spas, hereinafter “WHE”). Having created the shell of Urban Retreat, Willis needed only to find staff and clientele. To this end, Hite approached Dan Donnelly, a popular hairstylist and president of an established local salon. Willis and Hite suggested that Donnelly could transfer his clientele and staff to the soon-to-open day spa. Donnelly would manage the spa, continue his hairstyling business, and strive to increase business. In exchange, if certain longevity or gross revenue goals were met, Donnelly would gain ownership in URB and WHE, an increase in salary, and a seat on WHE’s board of directors. Willis personally assured Donnelly that he would provide the financial backing for the business. Donnelly executed a Letter Agreement on July 10, 1989, which set forth the levels of URB and WHE stock ownership and salary he would attain over the years: (1) 25% URB stock and 10% of WHE stock after 12 months’ employment or when the spa’s gross revenues equaled those made in Donnelly’s salon the prior year; (2) annual increases of URB stock, up to 50%, contingent on yearly half-million-dollar gains in gross revenues; (3) $110,000 salary for two years; and (4) five percent of gross revenues as salary in year three and beyond. The Letter Agreement also provided each shareholder the right of first refusal to purchase another shareholder’s stock. Further, it set forth the value of Donnelly’s shares should his employment terminate: the greater of two times earnings in the prior year or assets minus liabilities. Donnelly transferred his profitable business to URB, bringing several hairstylists, manicurists, and other salon personnel with him. URB held its grand opening in mid-December 1989. The gross revenues soon surpassed those of Donnelly’s previous salon. However, Urban Retreat’s costs were great, and the construction expense had exceeded projections. Further, Willis and one other minimal shareholder had provided only $1,000 as capital contribution. The $800,000 construction loan was in URB’s name, although Willis provided a $600,000 certificate of deposit as collateral. Additionally, although Willis personally transferred almost $297,000 to URB, he listed it as a loan instead of capital contribution. Thus, just six weeks after its grand opening, URB was over $1,000,000 in debt. Willis quickly recognized the need to “stop the bleeding.” There is evidence that he proposed suspending Hite’s $7,000 a month salary even before the grand opening. He also considered transferring Hite’s employment to WHE instead of URB. In early 1990, Hite left Urban Retreat. On January 1, 1990, just two weeks after the spa opening, the minimal shareholder transferred his 100 shares to Willis, leaving Willis the sole shareholder of URB’s 1,000 issued shares. In April 1990, Willis hired a second consultant as URB’s “non-operating chief financial officer.” Willis promised to sell this man 25% of URB stock for $1 after Willis’s “capital investment” had been repaid. Nonetheless, URB continued to lose money. Willis was thus faced with a financial quandary: he had personally guaranteed URB’s $14,000 a month lease, pledged his $600,000 CD as collateral for the construction loan, and invested $540,500 of cash by December 31, 1990. If URB did not meet its outside financial obligations, Willis would personally lose a large amount of money. The Letter Agreement with Donnelly added to the financial quagmire. It prevented Willis from firing Don-nelly within the first 12 months of business, except for gross misconduct. It also guaranteed Donnelly’s stock ownership at the 12-month mark because gross revenues were on track. After 12 months, Willis could fire Donnelly and his shares would be worthless under the Termination provision of the Letter Agreement. However, Donnelly was by far the greatest revenue producer in the spa. In March 1991 (after Donnelly met revenue goals ensuring him 25% URB stock and 10% WHE stock), Willis sought to change Donnelly’s status. Willis was no longer willing to provide 100% of the financing unless he was still “100% owner.” He wanted Donnelly to “step up” and “act like an owner.” Legal documents were prepared, but never signed, capping Don-nelly’s ownership at 25% of URB stock and rescinding the Letter Agreement. Willis also wanted Donnelly to assume some of the debt, but Donnelly declined to do so. Certainly, it made good business sense for Willis to minimize his potential losses and work towards profitability. However, Willis then continued to control Urban Retreat in disregard of Donnelly throughout the years. He rationalized that Donnelly had relinquished ownership when he refused to “act like an owner.” When Don-nelly asked about stock issuance, Willis would assure him that he intended to five up to the Letter Agreement, but asked to delay until the business “turned the corner.” At the same time, Willis continued to use URB as a wholly-owned, sub-chapter S-eorporation for tax benefits. Willis also unilaterally cut Donnelly’s salary in March 1992, supposedly temporarily, and diminished his management responsibilities. Willis continued to make “loans” to URB although there is no evidence such loans were approved by the board of directors. Additionally, Willis controlled Urban Retreat through his wife, Francie. He supposedly transferred all of his URB stock to her. A “unanimous consent of the board” was prepared in March 1991, but never signed, reflecting URB’s permission for Francie to convey to Willis a beneficial interest in URB’s option to buy its realty. Then, on July 30, 1992, Willis and Francie personally purchased the URB realty for $1.6 million. On that day, Francie, acting as president, signed a waiver of URB’s option. Included in the waiver was the statement that a “third party” wished to buy the realty and that “said third party has required a release” of URB’s option. One week after closing, the Willises amended URB’s lease, increasing its total rent over the lease term by $280,000. URB’s monthly rent of $14,000 remained the same, though the Willises’ monthly note was then only $10,800. Further, in the new lease, the Willises obligated URB to .pay the property taxes. Finally, in March 1998, Francie signed a promissory note on behalf of URB, documenting that it owed her husband $1,897,896 in loans. Over these years, Donnelly’s personal hairstyling revenues had increased, as did the overall gross revenues of the spa. In fact, every revenue goal in the Letter Agreement was met. Each time he asked about his stock, Willis would assure Don-nelly that he would live up to the agreement. Finally, in late November 1994, Francie learned that Donnelly was helping a friend plan a new day spa. When she learned of this, she asked Donnelly to leave Urban Retreat. B. Loans to Donnelly In January 1992, Donnelly asked Willis to borrow $18,000. He signed a promissory note for that amount at eight percent annual interest, to be repaid $500 a month from Donnelly’s paychecks. On July 1, 1993, Willis loaned Donnelly an additional $20,000. He rolled the previous note into the second, for a total principal of $31,183.70, at eight percent annual interest, to be repaid from Donnelly’s paychecks. The entire amount would become due if Donnelly’s employment at URB terminated. After November 1994, Donnelly stopped paying the loan. Francie sent him a demand letter, wishing him well in his new endeavor and urging him to “honor the trust that Mike [Willis] placed in you.” C. The Lawsuit When Donnelly ignored Francie’s demand letter, Willis filed suit for the outstanding $26,982.58. Donnelly reciprocated by suing Willis, Francie, URB, and WHE for breach of the Letter Agreement and breach of fiduciary duty, among other claims. The jury ultimately found that URB and WHE breached the Letter Agreement; Willis and Francie ratified it; Donnelly was entitled to 50% of URB stock and 10% of WHE stock; and that contract damages were $1.7 million. The jury further found that Willis had breached his fiduciary duty to Donnelly and that those damages were $1.7 million. The jury rejected limitations questions for both issues. As for the loans to Donnelly, the jury found that he defaulted on the promissory note and owed $26,982.56 to Willis. Finally, the jury awarded both sides $400,000 in attorney’s fees. Under the trial court’s judgment, Don-nelly was awarded (1) $1.7 million for the fiduciary duty claim; (2) $1.7 million for the contract claim; (3) a constructive trust on the Urban Retreat realty and on 50% of all URB stock and 10% of all WHE stock possessed by the Willises or Urban Retreat; and (4) $400,000 in attorney’s fees. The trial court awarded Mike Willis (1) $26,982.56 for the promissory note and (2) $400,000 in attorney’s fees. Breach of Contract In nine of the Willises’ issues and three of Urban Retreat’s issues, they attack the judgment against them for breach of contract. A. Breach of Contract Jury Findings In their first, second, and third issues, the Willises argue that Donnelly waived breach of contract because he failed to request jury findings that Willis and Francie breached the Letter Agreement. However, whether a party has breached a contract is a question of law for the court, not a question of fact for the jury. Meek v. Bishop, Peterson & Sharp, P.C., 919 S.W.2d 805, 808 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Garza v. Southland Corp., 836 S.W.2d 214, 219 (Tex.App.-Houston [14th Dist.] 1992, no writ). “The court determines what conduct is required by the parties, and, insofar as a dispute exists concerning the failure of a party to perform the contract, the court submits the disputed fact questions to the jury.” Meek, 919 S.W.2d at 808; see ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 253 n. 3 (Tex.App.-Dallas 1990, no writ). When facts are undisputed or conclusively established, there is no need to submit those issues to the jury. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); Meek, 919 S.W.2d at 808. Here, the existence of the Letter Agreement was undisputed; it was also undisputed that Donnelly never received the benefits promised in the Letter Agreement. The issues that were disputed, such as whether Donnelly waived enforcement of the contract (Question 6) and whether the Willises ratified it (Question 10), were submitted to the jury. It is uncontrovert-ed that the Willises failed to abide by the Letter Agreement. Thus, it was not necessary to submit the question about their breach to the jury, and Donnelly’s failure to request such a question does not result in waiver. Accordingly, we overrule the Willises’ first three issues. B. Signatories to the Contract In their fourth and fifth issues, the Willises argue they could not have breached the Letter Agreement because they were not signatories to it. The parties listed in the Letter Agreement were Willis, Hite, URB, WHE, and Donnelly. It was signed by Hite (individually and as president of WHE) and Donnelly. Willis’s signature line was crossed out. The Willises contend their signatures or an authorized agent’s signature was required under the statute of frauds. The statute of frauds provides: (a) A promise or agreement ... is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. Tex. Bus. & Com.Code Ann. § 26.01(a)(2) (Vernon 2002). The Willises argue that they did not sign the contract nor is there evidence that Hite had authority to bind them. In their argument, the Willises ignore the jury’s finding that they ratified the contract. Ratification is the adoption or confirmation by a person with knowledge of all material facts of a prior act that did not then legally bind him and that he had the right to repudiate. Avary v. Bank of Am., N.A., 72 S.W.3d 779, 788 (Tex.App.-Dallas 2002, pet. denied). Such approval can be given through act, word, or conduct. K.B. v. N.B., 811 S.W.2d 634, 638 (Tex.App.-San Antonio 1991, writ denied); see Stable Energy, L.P. v. Newberry, 999 S.W.2d 638, 547 (Tex.App.-Austin 1999, pet. denied) (ratification can occur if one affirmatively acknowledges a contract). Further, whether Hite was the Willises’ authorized agent is of no consequence. See Hays v. Marble, 213 S.W.2d 329, 333 (Tex.Civ.App.-Amarillo 1948, writ dism’d). “One may ratify the acts or contract of another ... whether the other was his agent and exceeded his authority as such or was not his agent at all.” Id. Thus, it is the Willises’ ratification of the contract that binds them to perform, not their signatures. We overrule the Willises’ fourth and fifth issues. C. Ratification In their sixth issue, the Willises contend that their ratification of the contract is insufficient to support recovery for breach of contract. They again urge that a separate jury finding of breach is necessary. We have already overruled this contention in our disposition of issues one through three. Additionally, in a single sentence in issue six, the Willises argue the evidence is legally and factually insufficient to show that they ratified or breached the Letter Agreement. Bare assertions of error, without citation to the record, present nothing for review. Tex.R.App. P. 38.1(h); Thedford v. Union Oil Co. of Ca., 3 S.W.3d 609, 615 (Tex.App.-DaUas 1999, pet. denied). When a party fails to include citation of authority or discussion of relevant facts to support its sufficiency contention, we will not perform an independent review of the record and applicable law to determine whether the error complained of occurred. Ryan v. Abdel-Salam, 39 S.W.3d 332, 336 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Thus, the Willises’ sufficiency challenge is waived. Further, their bald assertion of legally insufficient evidence is readily defeated, given Mike Willis’s own testimony that he intended to abide by the Letter Agreement and their admission that Donnelly never received his stock. D. Waiver through Pre-Suit Conduct In the Willises’ seventh issue and Urban Retreat’s first and third issues, appellants contend that, as a matter of law, Donnelly waived breach of contract by his pre-suit conduct. Waiver is an affirmative defense. Tex.R. Crv. P. 94; Rogers v. Cont’l Airlines, Inc., 41 S.W.3d 196, 198 (Tex.App.-Houston [14th Dist.] 2001, no pet.). “In Texas, waiver occurs when a party intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right.” Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 592 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex.1996)). A party’s express renunciation of a known right may establish waiver. Id. It is well established that waiver turns on the question of intent. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958). Whether waiver has occurred is therefore ordinarily a question of fact for a jury to decide. Tenneco, 925 S.W.2d at 643. In this case, the jury found in Question 6 that Donnelly had not waived breach of contract. When an appellant attacks the legal sufficiency of an adverse answer to a finding on which it has the burden of proof, the appellant must overcome two hurdles. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). First, the récord must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if no evidence supports the fact finder’s answer, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). There is evidence in the record supporting the jury’s finding that Donnelly did not intentionally relinquish a known legal right. Donnelly testified, “Mr. Willis ... continually told me that ... once we turned the corner, you know, that he would at some point live up to the Letter Agreement. But until that time, I had to live by whatever compensation changes were enacted by Mr. Willis.” According to Donnelly, Willis would tell him that he could “not issue stock at this time.” Mike Willis’s testimony corroborates Donnelly’s account. He stated that he merely delayed issuing the stock and that had he been asked, he would have complied with the Letter Agreement. Because there is evidence supporting the jury’s finding, we do not review the record for evidence to the contrary. Accordingly, we overrule the Willises’ seventh issue and Urban Retreat’s first and third issues. E. Statute of Limitations In the Willises’ eighth issue and subpart (a) of Urban Retreat’s second issue, they contend that Donnelly’s breach of contract claim is barred by the statute of limitations. A breach of contract action is subject to a four-year statute of limitations. Tex. Civ. PRAC. & Rem.Code Ann. § 16.004 (Vernon 2002). Donnelly filed his lawsuit in August 1995. The jury found there was no failure to comply before August 24, 1991, making Donnelly’s claim timely. Limitations is an affirmative defense, which the asserting party must prove. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988). Generally, a cause of action accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.1998). The time for accrual of a cause of action is a question of law. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). A breach of contract claim accrues when the contract is breached. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). Appellants argue that when they failed to transfer the first 25% of stock in 1990, the contract was breached and Donnelly’s statute of limitations began to run. In contrast, Donnelly argues that his suit was timely, citing two cases with facts substantially similar to the facts in this case, Pickett v. Keene, 47 S.W.3d 67 (Tex.App.-Corpus Christi 2001, pet. dism’d), and Intermedies, Inc. v. Grady, 683 S.W.2d 842 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). Both Pickett and Intermedies involved contracts in which portions of ownership in businesses were to be transferred to parties working for each business. In each case, deadlines for such transfers were delayed by the parties. In each case, the business ultimately tried to avoid transferring any portion of ownership and fired the worker. And in each case, the business claimed on appeal that because breach had occurred with the first missed deadline many years before, the case was barred by the statute of limitations. In both cases, the appellate court held that the cause of action accrued at the employee’s termination (when the employer clearly repudiated the agreement to transfer ownership). Pickett, 47 S.W.3d at 77; Intermedies, 683 S.W.2d at 847. In asserting the statute of limitations, appellants disregard the undisputed evidence that deadlines were postponed so the Willises could reap tax benefits and URB could “turn the corner.” “Even when an exact date of performance is specified in the contract, this provision can be waived by the parties.” Sieber & Calicutt, Inc. v. La Gloria Oil & Gas Co., 66 S.W.3d 340, 347 (Tex.App.-Tyler 2001, pet. denied); see Intermedies, 683 S.W.2d at 846; see, e.g., Pickett, 47 S.W.3d at 77. Further, an extension of time to perform can be express or implied and does not affect the other provisions of the contract. Intermedics, 683 S.W.2d at 846. The evidence indicates that appellants intended to honor the agreement “at some point.” Donnelly relied on Willis’s assurances and accepted the delays. There was no clear intent by appellants to repudiate the Letter Agreement until Donnelly’s termination. See Pickett, 47 S.W.3d at 77; Intermedics, 683 S.W.2d at 847. Thus, the contract claim did not accrue before August 24, 1991, and Donnelly’s claims were timely asserted in August 1995. We overrule the Willises’ issue eight and Urban Retreat’s issue two, subpart (a). F. Response to Jury Note In the Willises’ ninth issue and Urban Retreat’s issue two, subpart (b), appellants contend the trial court improperly responded to the following jury note about the statute of limitations: Does an answer of yes to question no. 7 [the statute of limitations question] indicate that the failure to comply [with the Letter Agreement] happened before that date and excludes the possibility that it happened on or after that date? We find that appellants’ complaint is waived because (1) the record fails to sufficiently reflect (a) that a supplemental instruction was given to the jury or (b) the contents of such an instruction; and (2) appellants incorrectly and untimely presented their requested supplemental instruction to the trial court. To show error regarding a supplemental jury instruction, the record must reflect the contents of the instruction and that the instruction was given. Keene Corp. v. Gardner, 837 S.W.2d 224, 228-29 (Tex.App.-Dallas 1992, writ denied). In this case, neither the jury’s note nor the trial court’s written response are included in the clerk’s record. Further, while the reporter’s record repeats the jury’s question word-for-word, it does not contain the trial court’s supplemental instruction verbatim. The trial court’s response was apparently written, extensively discussed by the parties and the court, and altered throughout the discussion. However, the final wording of the response is not reflected in the reporter’s record. Additionally, at the end of discussion about the jury’s note, the reporter’s record denotes only “jury deliberating,” not whether an instruction was actually delivered to the jury. See id. (holding court reporter’s notation that “whereupon the jury continued to deliberate” was insufficient to show court delivered additional charge). Thus, there is an insufficient record showing either the contents of the supplemental instruction or that the instruction was given to the jury. Next, appellants argue the trial court should have provided the supplemental question, ‘What is the earliest of any breach you have found?” in response to the jury’s note. However, appellants have waived error because they requested this supplemental question orally during jury deliberations. “To complain of the trial court’s omission of a requested instruction on appeal, a party is obliged to make a written request to the trial court for a substantially correct instruction.” Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 25 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (emphasis added). Appellants’ oral request is thus unsatisfactory. Further, the appellants filed a written request for this question too late, after the jury returned its verdict. Waiting until after verdict to file a request for a supplemental jury instruction is untimely. See Scott Fetzer Co. v. Read, 945 S.W.2d 854, 871 (Tex.App.-Austin 1997), aff’d, 990 S.W.2d 732 (Tex.1999). Additionally, appellants have not provided case law that theft proposed supplemental question was legally correct, while Question 7 was not. The statute of limitations was theft affirmative defense, and they voiced no objection to Question 7 during the charge conference. Lastly, appellants’ argument about their proposed supplemental jury question simply reiterates theft previous points of error, which we have overruled, about accrual of a contract claim. For the above reasons, we overrule the Willises’ issue nine and Urban Retreat’s issue two, subpart (b). BReach of Fiduciary Duty The Willises’ next ten issues address Mike Willis’s breach of fiduciary duty. A. Existence of Majority Shareholder/Minority Shareholder Relationship In their tenth, eleventh, and twelfth issues, the Willises argue that there is no evidence of breach of fiduciary duty because, after October 1990, there was never a majority-minority shareholder relationship between Willis and Donnelly. Specifically, Willis argues that Francie became sole shareholder of Urban Retreat in October 1990, and thus he had no majority shareholder’s duty after that time. Further, he argues that Donnelly was never a shareholder. When a party without the burden of proof challenges the legal sufficiency of the evidence to support an adverse jury finding, we construe the issue as a “no evidence” point. See Gooch v. Am. Sling Co., 902 S.W.2d 181, 188-84 (Tex.App.Fort Worth 1995, no writ). In determining a “no evidence” point, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). If there is more than a scintilla of such evidence to support the finding, the claim is sufficient as a matter of law. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). The record includes evidence that Willis transferred stock to Francie as late as October or November 1991. Additionally, Francie testified that a magazine article in January 1991 identified her husband and Donnelly as the owners of Urban Retreat. This article was written approximately one month after the Letter Agreement contemplated transfer of 25% of URB stock and 10% WHE stock to Don-nelly. Further, shortly after March 1991, she was privy to a meeting between her husband and Donnelly in which Willis asked Donnelly to cap his ownership interest in URB at 25%. This is more than a scintilla of evidence showing that both Donnelly and Willis were shareholders in Urban Retreat after October 1990. Accordingly, we overrule issues ten, eleven, and twelve. B. Claim Sounds in Contract Only In issue 13, the Willises contend that a party cannot claim breach of fiduciary duty when the only alleged damages are the subject of a contract. The Willises argue that Donnelly’s only alleged damages arise from breach of the Letter Agreement; thus, the claim sounds only in contract. See Southwestern Bell Tel. v. DeLanney, 809 S.W.2d 493, 494 (Tex.1991). It is often difficult to determine whether a party’s cause of actions sound in contract or tort or both — i.e., a “contort.” Ludlow v. DeBerry, 959 S.W.2d 265, 275 (Tex.App.Houston [14th Dist.] 1998, no pet.); see Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 617 (Tex.1986). A two-part test, set forth in DeLanney, guides this determination. 809 S.W.2d at 494-95. First, we look to the source of the duty to act. Id. at 494. If the conduct in question gives rise to liability only because it breaches an agreement between the parties, the claim ordinarily sounds in contract. Id. In this first step, we “must look to the substance of the cause of action and not necessarily the manner in which it was pleaded.” Reed, 711 S.W.2d at 617-18. Second, we consider the nature of the remedy or damages sought by the claimant. DeLanney, 809 S.W.2d at 494. “The nature of the injury most often determines which duty or duties are breached. When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.” Reed, 711 S.W.2d at 618. Additionally, the contract between the parties may create both contract and tort duties. Id.; see DeLanney, 809 S.W.2d at 494 n. 1 (“[S]ome contracts involve special relationships that may give rise to duties enforceable as torts.... ”). “[A] plaintiff is not precluded from asserting a tort cause of action solely because his damages are analogous to the damages sought in a contractual claim.” Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 674 (Tex.App.-Houston [1st Dist.] 1996, no writ). In this case, breach of contract arose from failure to transfer shares to Donnelly and failure to compensate him at the rate set forth in the Letter Agreement. Donnelly alleged that breach of fiduciary duty arose from Willis’s (1) purchase of the URB realty; (2) lease of the realty to URB for the total debt on the property; (3) treatment of capital contributions as loans; (4) representation that Urban Retreat was worthless; and (5) personal use of Urban Retreat’s tax benefits. The damages for breach of contract, more fully addressed below, were the unpaid compensation and fair market value of the Urban Retreat stock. In contrast, the damages for breach of fiduciary duty involved the value of the realty and the benefits personally taken by Willis. Thus, Donnelly’s injuries did not arise solely from breach of the Letter Agreement. Accordingly, we do not agree that the damages sought were solely contract damages. We overrule issue thirteen. C. Existence of Fiduciary Relationship In their fourteenth issue, the Wil-lises contend the trial court erred in finding that a fiduciary relationship existed between Willis and Donnelly and in instructing the jury that such a relationship existed. Whether a fiduciary relationship exists is normally a question of fact for the jury. Procom Energy, L.L.A. v. Roach, 16 S.W.3d 377, 382 (Tex.App.-Tyler 2000, pet. denied); Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex.App.-Houston [14th Dist.] 1997, pet. denied); Farah, 927 S.W.2d at 675. “When the issue is one of no evidence or conclusive evidence, the issue is a question of law.” Farah, 927 S.W.2d at 675. Here, the Willises contend that there was no evidence of a fiduciary relationship or, conversely, the evidence conclusively shows no fiduciary relationship exists. “[A] co-shareholder in a closely held corporation does not as a matter of law owe a fiduciary duty to his co-shareholder.” Hoggett, 971 S.W.2d at 488. Instead, the existence of such a duty depends on the circumstances. Pabich v. Kellar, 71 S.W.3d 500, 504-05 (Tex.App.-Fort Worth 2002, pet. denied). For example, a fiduciary duty exists if a confidential or “informal” relationship exists. Id. at 505; In re Estate of Fawcett, 55 S.W.3d 214, 220 (Tex. App.-Eastland 2001, pet. denied). Further, fiduciary relationships may be created by contract; through the repurchase of a shareholder’s stock in a closely held corporation, see Fawcett, 55 S.W.3d at 220; in certain circumstances in which a majority shareholder in a closely held corporation dominates control over the business, Hoggett, 971 S.W.2d at 488 n. 13; and in closely held corporations in which the shareholders “operate more as partners than in strict compliance with the corporate form.” DeBord v. Circle Y of Yoakum, Inc., 951 S.W.2d 127, 133 (Tex.App.-Corpus Christi 1997), rev’d on other grounds, 967 S.W.2d 352 (Tex.1998). We disagree that there was no evidence of, or alternatively evidence conclusively disproving, a fiduciary relationship. There is evidence tending to show that Mike Willis engaged in oppressive conduct and dominated control over the business. See Hoggett, 971 S.W.2d at 488 n. 13. For instance, Willis alone reaped personal tax advantages by treating URB as a wholly-owned business. Willis, not Urban Retreat or the board of directors, hired a new CEO and promised him ownership in URB if Willis’s capital investment was repaid. Further, the evidence shows that although Willis promised to provide cash capital contributions, he continually treated all but $1,000 of such contributions over the years as loans. There is evidence that Willis’s promises to provide capital were inducements to Donnelly to join the business. See Willis, 997 S.W.2d at 801 (defining oppressive conduct as that which defeats the minority shareholder’s expectations that were reasonable and central to the decision to join the venture). The evidence shows that Willis kept Urban Retreat thinly capitalized and thus limited its on-going ability to operate. And, if debts always surpassed income and assets, Donnelly’s shares would be worth little to nothing under the Termination provision of the Letter Agreement (defining share value as the greater of two times prior year’s earnings or assets minus liabilities). Further, after Willis could not convince Donnelly to cap his ownership interest, he found a way to purchase the spa realty for himself. First, a corporate document was prepared allowing Francie to assign Willis an interest in the spa’s option. Later, he bought the realty, having Francie waive URB’s option the day of closing. Although URB supposedly could not afford to buy the realty, the Willises then charged the total debt to URB through rent. By purchasing the realty, Willis also ensured that Donnelly’s stock value decreased under the Letter Agreement. These could be construed as purposeful actions to dilute the value of shares while employing the business and its assets solely for Willis’s own benefit. See generally Duncan v. Lichtenberger, 671 S.W.2d 948, 953 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e.) (citing Patton v. Nicholas, 154 Tex. 385, 279 S.W.2d 848 (1955), regarding lowering of minority’s share value). Additionally, the evidence shows that Willis transferred all the URB stock to Francie as late as November 1991. By that time, Donnelly was a minority owner in the business, and he had a right of first refusal to purchase the shares per the Letter Agreement. Willis did not extend this opportunity to Donnelly. See Thompson v. Hambrick, 508 S.W.2d 949, 951-54 (Tex.Civ.App.-Dallas 1974, writ ref'd n.r.e.) (fact issue whether majority shareholder’s sale of shares without offering right of first refusal to minority shareholder was a breach of fiduciary duty). Further, Willis unilaterally cut Donnelly’s salary and tried to cap his ownership interest, after delaying issuance of his stock. Willis’s own discovery answers reveal that he decided Donnelly was not acting like an owner, and he justified treating him like a nonowner for that reason. See Davis v. Sheerin, 754 S.W.2d 375, 382 (Tex.App.-Houston [1st Dist.] 1988, writ denied) (conspiring to deprive one of ownership in a corporation is oppressive conduct). Finally, case law indicates Willis would owe a fiduciary duty to Donnelly m repurchasmg his shares. See Fawcett, 55 S.W.3d at 219-20. These examples defeat the Willises’ argument that only legal absolutes existed, i.e., no evidence supported the existence of a fiduciary relationship or that they conclusively disproved the existence of a fiduciary relationship. Lastly, the Willises contend because it is a question of fact, the trial court erred in instructing the jury that a fiduciary relationship existed. However, the Willises failed to object to Question 22 in the charge on this basis. Instead, they objected as follows: Plaintiffs would object to Question No. 22 in that there is no evidence to support submission of the issue. Plaintiffs object to the submission of Question No. 22 because as a matter of law, Mike Willis owes no fiduciary duty to Dan Donnelly. These objections were insufficient to alert the trial court that existence of a fiduciary relationship was a fact question for the jury. See State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992) (test is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling); see, e.g., McAllister v. Oman, 2001 WL 870037, at *1 (Tex.App.-Houston [14th Dist.] Aug. 2, 2001, no pet.) (not designated for publication). Instead, the objections raise “no evidence” and “conclusive evidence,” which we rejected above. To preserve error, the Willises were required to object that the question was omitted. See TexR. Civ. P. 278. The record is devoid of the slightest indication from the Willises that existence of a fiduciary relationship was a jury question. Thus, the trial court’s error, if any, is not a ground for reversal in this case. See id. Accordingly, we overrule issue 14. D.Failure to Obtain Findings In their fifteenth issue, the Willises argue that Donnelly failed to obtain a jury finding on the existence of a fiduciary relationship. As we addressed in regard to issue 14, the Willises did not preserve error to complain about the lack of a jury finding. In their sixteenth issue, the Willises contend that Donnelly “failed to secure a finding as to ownership of any shares.” This point of error is vague, and the Willises offer no argument, citation to the record, nor authority in support of it. They have waived this issue. Thedford, 3 S.W.3d at 615; Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304-05 (Tex.App.-Houston [14th Dist.] 1995, no writ) (an issue not supported by authority is waived). Accordingly, we overrule issues 15 and 16. E.Burden of Proof In issue 17, the Willises complain that the trial court improperly placed the burden of proof for breach of fiduciary duty on Mike Willis. The Willises argue that before the burden of proof could be placed on Mike Willis, Donnelly was first required to establish the existence of a fiduciary relationship. This argument is an attempt to circumvent the Willises’ failure to object or to request the missing jury question on the existence of a fiduciary relationship. Further, the profiting fiduciary has the burden to prove questioned transactions were “fair, honest, and equitable.” Estate of Townes v. Townes, 867 S.W.2d 414, 417 (Tex.App.-Houston [14th Dist.] 1993, writ denied); Miller v. Miller, 700 S.W.2d 941, 947 (Tex.App.-Dallas 1985, writ ref'd n.r.e.); see Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508-09 (Tex.1980). The trial court did not misplace the burden of proof. We overrule issue seventeen. F.Standing to Sue In issue 18, the Willises argue that Donnelly was required to bring a shareholder’s derivative suit to assert claims on behalf of the corporation for breaches of fiduciary duty. However, from our review of Donnelly’s pleadings, we conclude that he did not sue on behalf of the corporation. He only sued in an individual capacity. To the extent the Willises are actually arguing that no fiduciary duties flowed to Donnelly individually, we refer to our analysis of issue fourteen. As discussed, there are instances in Texas law in which shareholders in closely held corporations owe other shareholders fiduciary duties. As we acknowledged in discussing issue fourteen, the existence of such a fiduciary relationship is a question of fact for the jury. As we further held, the Willises cannot complain on appeal about the absence of a jury finding because they failed to preserve error. Further, we disagreed with the Willises’ two contentions that (1) there was “no evidence” of a fiduciary relationship; or (2) they conclusively proved the nonexistence of such a relationship. We believe the evidence raised a fact issue on the existence of a fiduciary relationship between Willis and Donnelly, individually. Accordingly, we overrule issue 18. G. Statute of Limitations on Breach of Fiduciary Duty In their nineteenth issue, the Wil-lises contend that Donnelly’s claim for breach of fiduciary duty is barred by the statute of limitations. There is a four-year statute of limitations for breach of fiduciary duty. Tex. Civ. Prac. & Rem.Code Ann. § 16.004 (Vernon 2002). The Willises argue that the only alleged breach of fiduciary duty was Willis’s failure to disclose information before Donnelly executed the Letter Agreement on July 10, 1989. Don-nelly did not sue until August 25, 1995, more than four years later. However, Donnelly’s petition also alleged Mike Willis’s self-dealing, treating capital contributions as loans, failing to keep proper and accurate financial records, and improperly transferring stock to Francie. Evidence shows that (1) Francie received 100% of the URB shares as late as October or November 1991; (2) Mike Willis made numerous “loans” to URB after August 1991; and (3) Mike and Francie bought the URB property and waived the spa’s option to purchase it in July 1992. Because these alleged breaches of fiduciary duty occurred within four years of suit, Donnelly’s claims are not barred by the statute of limitations. We overrule issue nineteen. CONSTRUCTIVE TRUST In their twentieth, twenty-first, and twenty-second issues, the Willises contend that the trial court erroneously imposed a constructive trust on the URB realty, 50% of URB stock and 10% of WHE stock because (1) a fiduciary relationship did not exist or did not exist apart from the dealings made the basis of the lawsuit; (2) no fraud was established; (3) no pleadings support imposition of equitable relief; (4) there was no commingling; (5) equitable relief is improper to enforce contractual obligations and where the plaintiff gave services; (6) post-verdict evidence was improperly admitted; (7) imposition of the constructive trust violates their right to trial by jury and due process; (8) there was no evidence, insufficient evidence, and no finding upon which to impose a constructive trust; (9) constructive trusts should not be imposed where money damages are available; and (10) a constructive trust is improper because Donnelly had unclean hands. In issues five, six, and seven, Urban Retreat argues many of these same subissues and also claims that laches prevent imposition of the constructive trust. A. Error in Imposing Constructive Trust We address the first eight subissues, which constitute the Willises’ issue 20 and Urban Retreat’s issue five and portions of issue six. Again, appellants contend no fiduciary relationship existed. Accordingly, we refer to our disposition of issue 14. Second, appellants argue that fraud must be shown before a constructive trust is imposed. However, “[a]ctual fraud, as well as breach of a confidential relationship, justifies the imposition of a constructive trust.” Meadows v. Bierschwale, 516 S.W.2d 125, 128 (Tex.1974); see Gaines v. Hamman, 168 Tex. 618, 358 S.W.2d 557, 560 (1962); Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 405 (1960); see also Duncan v. Lichtenberger, 671 S.W.2d 948, 952, 954 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e.) (stating fraud is not required for breach of fiduciary duty; equitable relief is available for such breach). Third, appellants contend that there are no pleadings to justify imposition of the constructive trust on the realty. They do not cite any authority for the proposition that Donnelly, in seeking a constructive trust, must plead the specific property to which it should attach. In his petition, Donnelly sought a constructive trust because the Willises had been unjustly enriched by retaining all the Urban Retreat stock. His pleadings for a constructive trust also refer to and incorporate pleadings about Willis’s self-dealing, false characterization of capital, complete control of the business, and inaccurate record keeping. Further, Donnelly generally sought “all such other damages as [he] may be justly entitled,” and all “relief, at law or in equityf,] to which [he] is justly entitled.” The appellants did not specially except to the pleadings for equitable relief. “When a party fails to specially except, courts should construe the pleadings liberally in favor of the pleader.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). We hold that Donnelly’s pleadings are sufficient to support a claim for equitable relief, justifying the court’s imposition of a constructive trust. Accordingly, we overrule this subis-sue. Fourth, appellants argue that a constructive trust was improper because the URB realty was never commingled with Urban Retreat stock. The cases appellants cite show that a constructive trust is proper when a fiduciary commingles assets. See Graham v. Turner, 472 S.W.2d 831, 840 (Tex.Civ.App.-Waco 1971, no writ) (shareholder in closely held corporation wrongly sold corporate assets and mingled proceeds with his own assets); Andrews v. Estate of Andrews, 326 S.W.2d 203, 207 (Tex.Civ.App.-Waco 1971, no writ) (plaintiffs sought percentage of deceased’s estate on theory that farm income from their land had been commingled with the estate). However, neither case stands for the proposition that commingling is a prerequisite for imposition of a constructive trust. Further, commingling was not an issue at trial in this case. Appellants’ argument is thus inapposite. Fifth, appellants argue that a constructive trust was improper (1) to enforce contract rights and (2) because Donnelly “parted with services, not property,” and the proper remedy for services is payment. As detailed later in this opinion, we are reversing the contract claim because the jury considered the wrong measure of damages. Thus, we are also reversing the portion of the constructive trust that addressed Donnelly’s contract remedies. Additionally, we have already held that Donnelly sought damages for breach of fiduciary duty different from and in addition to those for breach of contract. Further, a constructive trust has a “very broad function of redressing wrong or unjust enrichment in keeping -with the basic principles of equity and justice.” Ginther v. Taub, 675 S.W.2d 724, 728 (Tex.1984). To disallow a constructive trust because a party renders services only is “an unduly restrictive view of the remedy of constructive trust.” Meadows, 516 S.W.2d at 131. We overrule this subissue. Sixth, appellants protest that the trial court improperly admitted evidence post-verdict, specifically the affidavit of Sal Rodriguez, which was attached to Donnelly’s supplemental motion to enter judgment. Donnelly attached the affidavit as support for his post-verdict request to order amended URB tax returns. Appellants objected to the affidavit, but there is no ruling in the record as required by Rule of Appellate Procedure 38.1(a)(2). Further, the record does not reflect whether the trial court actually considered the affidavit. To the contrary, the trial court did not order amendments to the tax return. We thus overrule this subissue. Seventh, appellants contend that imposition of the constructive trust violates their right to due process and trial by jury. Specifically, they complain that the trial court entered judgment on claims neither pleaded nor submitted to the jury. We have already addressed these claims as follows: (1) we found Donnelly’s pleadings for equitable relief sufficient for imposition of a constructive trust and (2) we also found that appellants failed to preserve error that the existence of a fiduciary relationship was a fact question for the jury. The jury’s finding of breach of fiduciary duty permits imposition of a constructive trust. See Carr v. Weiss, 984 S.W.2d 753, 767 (Tex.App.-Amarillo 1999, pet. denied). Eighth, the Willises contend in one sentence, without citation to the record or to authority, that “there was no evidence, no legally sufficient evidence, no factually sufficient evidence, and no finding of any basis upon which to impose a constructive trust on the stock or real property.” In the context of the Willises’ issue 20, this one sentence is merely a catch-all included at the end of briefing four-and-one-half pages long. Because it is multifarious, lacking in substantive analysis, and devoid of citation to authority and the record, they have waived this eighth subissue. See Ryan v. Abdel-Salam, 39 S.W.3d 332, 336 (Tex.App.-Houston [1st Dist.] 2001, pet. denied); Interstate Northborough P’ship, 8 S.W.3d at 7 n. 2; Keever v. Finian, 988 S.W.2d 300, 314 (Tex.App.Dallas 1999, pet. dism’d). Accordingly, having addressed these eight subissues, we overrule the Willises’ issue 20, Urban Retreat’s issue five, and the first portion of Urban Retreat’s issue six. B. Money Damages Available We next address the ninth subissue, which comprises the Willises’ twenty-first issue and Urban Retreat’s seventh issue. Appellants contend that the trial court erred in awarding equitable relief because Donnelly failed to establish that he lacked an adequate remedy at law. In other words, appellants claim that where money damages are available, a constructive trust may not be imposed. The thrust of appellants’ argument is that (1) a constructive trust is an equitable remedy; (2) equitable remedies such as injunctions and specific performance require a lack of an adequate remedy at law; (3) thus, an inadequate remedy at law is a prerequisite to imposition of a constructive trust; (4) money damages are available to compensate any breach of fiduciary duty in this case; and (5) Donnelly is accordingly not entitled to a constructive trust. However, the forms of constructive trusts are “practically without limit” and may be “applied wherever necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrong-doer.” Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 263 (1951) (emphasis added); Wheeler v. Blacklands Prod. Credit Ass’n., 627 S.W.2d 846, 849 (Tex.App.-Fort Worth 1982, no writ); cf. Restatement of Restitution § 160 cmt. e (1937) (constructive trust appropriate for cases involving title to land or where “payment or transfer was procured by an abuse of a fiduciary or confidential relation.”). The trial court was not precluded from imposing a constructive trust. Accordingly, we overrule the Willises’ issue 21 and Urban Retreat’s issue seven. C. Unclean Hands In the Willises’ issue 22 and the second portion of Urban Retreat’s issue six, appellants argue that Donnelly’s claims for equitable relief are barred by the doctrine of unclean hands. One who seeks a constructive trust must come with clean hands regarding the issue in dispute. See Omohundro, 341 S.W.2d at 410; see also Wynne v. Fischer, 809 S.W.2d 264, 267 (Tex.App.-Dallas 1991, writ denied). It is within a trial court’s sound discretion to determine whether a party has unclean hands and whether the party’s alleged fraudulent actions should bar equitable relief. Thomas v. McNair, 882 S.W.2d 870, 880 (Tex.App.-Corpus Christi 1994, no writ). Appellants contend Donnelly’s hands are unclean because he breached his contract with them. Specifically, they contend he failed to bring his entire former staff to Urban Retreat, produced less revenue than promised, and attempted to establish a competing business. However, breach of contract is an issue separate from breach of fiduciary duty. To bar equitable relief, a plaintiff’s inequitable conduct should arise with regard to the issue in dispute. Wynne, 809 S.W.2d at 267. Further, a party complaining of an opponent’s unclean hands ‘“must show that he himself has been injured by such conduct to justify the application of the principle to the case.’ ” Omohundro, 341 S.W.2d at 410 (quoting 2 Pomeroy’s Equity Jurisprudence at 99); see Thomas, 882 S.W.2d at 880; see also Norris of Houston, Inc. v. Gafas, 562 S.W.2d 894, 897 (Tex. Civ.App.-Houston [1st Dist.] 1978, writ ref'd n.r.e.) (hairstylist claimed salon sought equity with unclean hands, but she failed to show harm). Even if we assume Donnelly breached his contract, appellants have neither argued nor shown they were harmed. For instance, they do not set forth the difference in revenue promised by Donnelly versus revenue earned, nor do they show that Urban Retreat’s revenue suffered because of Donnelly’s assistance in creating a competing salon. Because (1) Donnelly’s alleged unclean hands involve contract — a separate issue— and (2) appellants have not shown harm, the trial court did not abuse its discretion in disregarding appellants’ argument of “unclean hands.” Accordingly, we overrule issue 22 and the second portion of Urban Retreat’s issue six. D. Laches In the remainder of issue six, Urban Retreat argues that Donnelly’s claim for equitable relief is barred by lach-es. There are two essential elements of laches: “(1) unreasonable delay by one having legal or equitable rights in asserting them; and (2) a good faith change of position by another to his detriment because of the delay.” Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 80 (Tex.1989). Extraordinary circumstances, which would work a grave injustice, must exist before laches bars a suit filed within the limitations period. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.1998). Urban Retreat argues that it has been prejudiced because memories have faded over time. However, fading memory “is one of the policy reasons behind the statute of limitations.” Wakefield v. Bevly, 704 S.W.2d 339, 345 (Tex.App.Corpus Christi 1985, no writ). Faded memory does not establish laches in a suit filed before the statute of limitations has expired. Id. The case cited by Urban Retreat, Fazakerly v. Fazakerly, 996 S.W.2d 260, 265 (Tex.App.-Eastland 1999, pet. denied), is distinguishable. It involved a daughter’s challenge to her father and stepmother’s antenuptial agreement after expiration of the statute of limitations; 25 years after the agreement was signed; eight years after the father’s death; and after the stepmother became incapacitated by Alzheimer’s. In contrast, in this case, the statute of limitations did not expire, and the essential parties are alive and competent. Further, Urban Retreat has not identified its good faith but detrimental change in position due to Don-nelly’s delay in filing suit. See Rogers, 772 S.W.2d at 80. For these two reasons, we overrule Urban Retreat’s assertion of lach-es. We overrule Urban Retreat’s issue six. Damages In their twenty-third, twenty-fourth, and twenty-fifth issues, the Willises contend that the trial court improperly instructed the jury about the measure of damages for breach of contract and breach of fiduciary duty and improperly “stacked” the damages, which permitted a triple recovery. Urban Retreat urges these same issues in points of error eight, nine, and ten. A. Breach of Contract Damages First, appellants argue that the trial court submitted the wrong measure of damages for breach of contract to the jury. The jury awarded $1,707,684.30 in damages for unpaid salary and for stock value using the equation found in the Letter Agreement’s “Other Matters Relating to Shares.” We agree that the jury considered the wrong measure of damages for the stock value, although we disagree with the measure of damages urged by appellants. “Damages must be measured by a legal standard, and that standard must be used to guide the fact finder in determining what sum would compensate the injured party.” Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). The proper measure of damages is a question of law. Id. In the jury charge, the trial court instructed the jury to measure the value of Donnelly’s shares under a provision in the Letter Agreement entitled “Other Matters Relating to Shares.” The Letter Agreement contains two provisions about share valuation, one under the heading “Termination” and the other under “Other Matters Relating to Shares.” The “Termination” provision requires Donnelly to sell his shares back if his employment terminates after 12 months. Under the “Termination” provision, share value equals the greater of (a) assets minus liabilities or (b) two times previous year’s earnings. Using this provision, Donnelly’s shares are valueless because Urban Retreat’s liabilities and costs have always outstripped its tangible assets and revenue. Appellants urge that this provision should be used as the measure of damages because Donnelly was terminated. In contrast, the shares have value if the provision in “Other Matters Relating to Shares” applies. Under that provision, share value equals the market value of the real estate plus the previous 12 months’ gross revenue. Thus, Urban Retreat’s debts would not be considered. However, the plain language of the Letter Agreement reveals that “Other Matters Related to Shares” is activated only in two situations: (1) when a shareholder exercises a right of first refusal and (2) in an exchange of stock if multiple “Urban Retreat companies” combine. The parties simply disagree regarding which of the two provisions should be used to value the shares. However, neither of the two is a liquidated damages provision applicable in the event of breach of contract. See Lafarge Corp. v. Wolff, Inc., 977 S.W.2d 181, 188 n. 13 (Tex.App.-Austin 1998, pet. denied). Although parties may stipulate the amount of damages to be recovered in the event of breach of contract, “[s]uch an agreement ... must be expressed, and in the absence of an express agreement for liquidated damages the court will not make one for the parties.” Id.; see also Newsom v. State, 922 S.W.2d 274, 28.1 (Tex.App.-Austin 1996, writ denied) (“Damages become ‘liquidated’ when the parties have agreed to the amount at issue.”). In the absence of an express agreement for liquidated damages, courts apply a common-law measure of damages for breach of contract. See General Elec. Supply Co. v. Gulf Electroquip, Inc., 867 S.W.2d 591, 599 (Tex.App.-Houston [1st Dist.] 1993, writ denied). Further, appellants cannot take advantage of provisions favorable to them in the very contract they breached. See Baker Marine Corp. v. Weatherby Eng’g Co., 710 S.W.2d 690, 696 (Tex.App.-Corpus Christi 1986, no writ). One who has broken a contract cannot thereafter enforce the remaining terms. See Joseph v. PPG Indus., Inc., 674 S.W.2d 862, 867 (Tex.App.-Austin 1984, writ ref'd n.r.e.); accord II Deerfield Ltd. P’ship v. Henry Bldg., Inc., 41 S.W.3d 259, 265 (Tex.App.-San Antonio 2001, pet. denied); Interceramic, Inc. v. S. Orient R.R. Co., 999 S.W.2d 920, 924 (Tex.App.-Texarkana 1999, pet. denied). Having breached the contract, appellants cannot then enforce the Termination provision as though it were a liquidated damages clause or the common-law measure of damages, which it is not, In a breach of contract action for failure to transfer shares of a closely held corporation, “[t]he proper measure of damages is the fair market value of the stock.... ” See Bowers Steel, Inc. v. DeBrooke, 557 S.W.2d 369, 373 (Tex.Civ.App.-San Antonio 1977, no writ) (employee was promised 20% of stock in closely held corporation, but never received it); see also Miga v. Jensen, 96 S.W.3d 207, 215