Full opinion text
OPINION BOB PEMBERTON, Justice. We grant the motion for rehearing of appellants, Springs Window Fashions Division, Inc., Springs Window Fashions, L.P. and SWF, Inc. d/b/a SC-SWF, Inc. (“Springs”), withdraw our opinion and judgment of July 29, 2005, and substitute the following in its place. Springs appeals a judgment awarding appellee, The Blind Maker, Inc., $5,167,240 in actual damages and $2,090,000 in exemplary damages. The sole liability theory submitted to the jury was fraud, and the sole element of actual damages submitted was lost profits as consequential damages. Springs asserts that the evidence is legally and factually insufficient to support either a finding of fraud or the damages award. For reasons we explain below, we conditionally affirm the judgment of the trial court. BACKGROUND The parties and their businesses Springs manufactures blinds and similar window coverings and sells its products under the brand names Graber, Nanik, and Bali. The ultimate consumers of Springs’s products are persons who purchase the blinds for use in their homes or offices. Springs distributes its products to consumers chiefly through two channels. First, Springs sells fully assembled blinds directly to large retail outlets like Home Depot or Lowe’s. This retail channel of distribution, as well as other lower-priced sales channels like 800 numbers and the Internet, have put significant downward pressure on prices within the blinds industry. Springs’s second distribution channel is the “distributor/fabricator” channel. Springs sells component parts of its blinds to blinds fabricators who have business relationships with retail establishments like paint and hardware stores, or individual interior designers, decorators, and architects. These retail-level customers of the blind fabricator, in turn, sell to ultimate consumers. Utilizing samples and other promotional materials, the retail-level customers obtain from consumers color and style preferences, window measurements and other specifications and transmit them in orders to the blind fabricator. The blinds fabricator then “fabricates” custom-made blinds by cutting and assembling the appropriate Springs components in accordance with consumer specifications. Blind Maker is a blinds fabricator based in Austin, with facilities also in Dallas and Houston. It was established in 1981 by Ray Hicks, its president and sole shareholder. Hicks started the company after earning his M.B.A. The families of both of Hicks’s parents had been involved in the blinds industry for many years. Blind Maker began fabricating and selling Springs’s Graber brand in 1988 or 1984. Blind Maker experienced steady growth throughout its history. In its first year of operation, Blind Maker’s sales totaled $627,656. Ten years later, Blind Maker had over $11,000,000 in sales. Blind Maker’s annual sales tripled in the 1990s — its 1998 figure exceeded $35 million — ranking it as the largest fabricator of Graber products in the nation. Despite Blind Maker’s large annual sales figures, the company’s annual net profits during the 1990s averaged around $37,000, or just over one percent of total sales. Blind Maker’s history of small net profits reflects, among other things, a corporate strategy of financing its rapid and continuous growth through capital investment and of paying large salaries to its executives, including Hicks, to avoid double taxation. Hicks testified at trial that, throughout the 1990s, Blind Maker voluntarily chose to sell almost exclusively Graber products and considered itself the “Graber guys.” Blind Maker also prided itself in being a “full line” Graber fabricator, carrying the components necessary to fabricate the complete range of Graber products. The company strove to fill and ship orders from its retail-level customers on the same day they were received. These strategies required Blind Maker to maintain large inventories — Hicks testified that the company would frequently carry six million dollars in inventory, which would take roughly two months to turn over through sales. Hicks added that Blind Maker took around another month to collect its accounts receivable from sales, meaning that it could take three months or more to realize cash from the sale of inventory it purchased from Springs. Throughout Blind Maker’s seventeen-year relationship with Springs, Hicks expressed concern that Springs’s business practices in the distributor/fabricator channel reduced Blind Maker’s profitability. Chief among Hicks’s complaints were Springs’s perceived emphasis on its lower-priced retail channel at the expense of its fabricators, a lack of “price parity” enabling Blind Maker to compete with large retailers, and sales incentives that Hicks believed rewarded fabricators who made small or occasional purchases from Springs while penalizing “full line” fabricators like Blind Maker. Hicks urged a series of changes in Springs’s business practices that he believed would enhance profitability for both Springs and “full line” fabricators and revisited them periodically throughout the parties’ relationship. These proposals, which included special incentives for a designated class of committed “Full Line Graber Fabricators,” became known to both parties as “Ray’s Obsessions.” For many years, Springs and Blind Maker did business without a written contract — Blind Maker would order Springs’s components as needed, Springs would invoice Blind Maker, and Blind Maker would pay. Hicks testified that Springs always permitted Blind Maker to pay later than the due date on the invoice. Furthermore, while the invoices stated that Blind Maker could take a 2% discount if it paid within fifteen or thirty days, Springs “forever” allowed Blind Maker to take the discount whenever it paid. Hicks explained that Springs did this in recognition of Blind Maker’s preeminence as a Graber fabricator and the duration of its cash cycle. In 1997, for the first time, Springs and Blind Maker entered into a formal credit agreement at Springs’s request. In that agreement, Blind Maker acknowledged that Springs “is not obligated to sell goods to [Blind Maker] or to grant open account payment terms,” and that “[t]he decision to sell product and extend credit shall be solely within the exclusive discretion of Springs.” The agreement further provided that Blind Maker “hereby agrees to make payments as necessary to keep the account balance within terms established by Springs” and that if Blind Maker failed to do so, Springs “may immediately suspend all future shipments on other than prompt payment terms such as cash or cashier’s check and may further demand immediate payment of the full balance.” Project Overlord The overriding theory of Blind Maker’s case at trial was that Springs committed a variety of fraudulent acts in furtherance of a plan to take over existing fabricators, move the fabrication process to Mexico, and utilize the prior fabricators as distributors. This plan was termed Project Overlord. Various Springs executives testified to the existence of Project Overlord, but there was some disagreement over the extent to which it was implemented. However, evidence of the implementation of the plan was presented at trial, including the purchases of fabricators, debt-for-equity swaps to acquire fabricators having large accounts payable to Springs, and the acquisition of a blinds manufacturing plant in Reynoso, Mexico. There was testimony that Blind Maker was a target of Project Overlord and that Springs ultimately acquired as many as three other fabricators. The Fabricator License Agreement Beginning in 1998, Springs took additional steps to formalize its relationship with Blind Maker and other blinds fabricators, including the initiation of a “preferred fabricator” program and the utilization of a licensing contract. Blind Maker characterized these steps as tools used by-Springs to advance Project Overlord. Blind Maker’s fraud claim is based largely on a series of alleged misrepresentations and failures to disclosure information regarding these new business initiatives. We accordingly explore this evidence in some detail. The pilot program In August 1998, Springs invited Hicks and representatives from a handful of other Graber fabricators to a meeting at Springs’s Wisconsin headquarters. At the meeting, Springs unveiled the concept of a “Fabricator Pilot Program,” which it termed a “Joint Partnership.” The stated goal of the pilot program was to “[strengthen our partnership through the design of effective programs that enhance market position and increase profitability for our fabricating partners and Springs.” Key components were efforts to build product and brand awareness (through advertising assistance and incentives), market penetration and sales growth (through new product development and possibly a “value brand” or “fighter brand” to compete with lower-priced private label brands), margin enhancement (through rebates and a fund that accrues a percentage of purchase totals for use in certain purchases), and a formal agreement between Springs and each “preferred” fabricator. With regard to the latter, Springs proposed the concept of a “Fabricator License Agreement” (FLA) that would grant participating fabricators a limited license to use Graber’s trademarks, provided they adhered to quality standards and manufacturing specifications to preserve the value of the trademarks and promote uniformity and interchangeability among Graber products and parts. All Springs fabricators would be required to sign the FLA. In addition, Springs introduced the concept of a three-tiered classification of its “Fabricating Partners”: Preferred, Full Line, and Standard. Standard Fabricators would be those who fabricated any Graber product. Full Line would be those who agreed to fabricate all available Gra-ber products. Preferred would be those who agreed to fabricate the full Graber line, plus agreed to not fabricate or distribute any competitor’s products unless otherwise agreed. Preferred fabricators would also be required to meet “minimum purchase and growth requirements.” In exchange, Springs proposed that each preferred fabricator would receive benefits including participation in the “mega” price plan (a means of competing with generic brands), priority in introducing new products or components (that new products would be sold through preferred fabricators before other fabricators or the retail channel), and “[u]pon meeting qualifications, all marketing and promotional benefits defined in the current year marketing program.” To the latter benefit, Springs added the caveat “Note: Marketing plans may be modified periodically to reflect business condition[s].” Hicks responded favorably to the Pilot Program concept, perceiving it to be a response to “Ray’s Obsessions,” the proposals he had expressed for years. On September 9, Springs sent Hicks a letter “to confirm the details of our Pilot Partnership Review.” The letter listed various benefits of the “Joint Improvement Plan”: (1) a margin improvement fund, whereby 2 ½% of Blind Maker’s total monthly purchases would accrue as a credit that could be applied to purchases of certain components; (2) a 2% rebate available if Blind Maker maintained its 1997 purchase volume; (3) issuing 1% of monthly purchases to Blind Maker’s co-op advertising fund; (4) a restricted marketing fund comprised of ⅜% of total purchases; (5) allowing Blind Maker to return full boxes of slow-moving inventory on a one-time basis, provided Blind Maker paid a restocking charge and purchased replacement inventory at 125% of the returned inventory’s value; and (6) technical assistance from Springs and “recommendations to improve efficiency.” Finally, the letter explained that “[o]ur intention is to run the pilot program until year end, and then roll out the new, complete program on 1-1-99.” Hicks testified that Blind Maker participated in the pilot program and that Springs provided the promised benefits. The Orlando meeting and 1999 Marketing Plan In mid-November, Jim Dudas, then-president of Springs, wrote Hicks, noting that “we are in the process of resetting our Distributor/Fabricator business,” including “the formalization and strengthening of our relationship with our partners.” That effort, Dudas wrote, included a “Distributor/Fabricator agreement,” a draft of which was enclosed, and an upcoming “Let’s Make Magic” conference in Orlando, Florida, on December 9-12. Twenty-four Graber fabricators attended the conference, including Blind Maker. A copy of a slide show from the conference, introduced by Blind Maker, states that the purpose of the conference was “to form a partnership [between Springs and invited fabricators] as we head into 1999.” One of the listed expectations from the conference was to “begin process of formulating a real win/win partnership.” The slide show indicates that the group discussed “[t]ri-suffocation of the retad environment” by “price deflation,” “over-saturation,” and “stagnant consumer demand.” Springs’s proposed response entailed “[cjonsolidation and growth of the strong” and “[s]hakeout of the weak” through strategies to distinguish and enhance the perception of the Graber brand and better position it in the retail environment. Aspects of these strategies included eliminating “channel conflicts” between Springs’s Graber, Nanik and Bali brands; enhanced advertising; and the “Preferred Fabricator” program. Springs presented an overview of the “Preferred Fabricator Program.” There would be three levels of preferred fabricators, Gold, Silver, and Bronze. Under “the benefits of being a Preferred Fabricator,” Springs listed: • “Payment terms of 2% 15th, net 60.” The parties agree that this phrase refers to a 2% early payment discount available if a party pays within fifteen days of invoice, with the full balance due on the 60th day after invoice. • “Inventory adjustment program.” • “Co-op funds” (comprised of 2% for advertising, 1.5% for sales aids, and .5% for events, the latter being made available only to Gold preferred fabricators). • Special discounts on pricing of certain components. • “Margin improvement fund,” whereby preferred fabricators would receive credits based on monthly purchases that could be applied toward future purchases. Gold preferred fabricators would receive 3%, Silver 2%, and Bronze 1%. • “Performance growth rebate,” whereby preferred fabricators would receive a rebate of 2% upon reaching quarterly targets for percentage growth in their purchases. Gold fabricators obtained the rebate upon meeting a 5% growth target, Silver 10%, and Bronze 15%. • “Business productivity consulting,” for Gold preferred fabricators only. • “Preferred lead program,” for Gold preferred fabricators only. • “New product priority” — the ability to sell new Graber products before the products are made available to other fabricators or the retail channel — for Gold only. Under “Preferred Fabricator Requirements,” Springs explained that to participate, a fabricator had to execute, by March 31, the Springs FLA; agree to fabricate exclusively Graber products; and fabricate or distribute minimum levels of Graber product. Gold preferred fabricators were required meet minimum purchase requirements of at least $2.5 million and to have at least $25,000 of sales in each of six Graber product categories; Silver $1.5 million-$2.5 million in purchases and $15,000 in sales in each Graber product category; and Bronze $.5 million-$1.5 million in purchases and $5,000 in sales in each Graber product category. Springs also reviewed the FLA, which Springs explained was aimed at maintaining and enhancing the reputation of its Graber trademarks. Springs emphasized that the FLA required fabricators to use only Graber components with the Graber products they sold and to conform to Gra-ber technical specifications. The “1999 Distributor/Fabricator Pricing Plan” was also presented, as was a description of Springs’s planned 1999 training programs. Blind Maker also introduced into evidence a booklet titled Springs’s “1999 Marketing Program,” which Hicks thought he received after the Orlando conference but before he signed the FLA. Under “Preferred Requirements” were listed the minimum purchase requirements discussed in Orlando, the exclusivity requirement (with the caveat that competitive products could be sold upon prior written approval from Springs), plus a requirement to: Execute and deliver to Springs ... the [FLA] and strictly comply with all terms and conditions of this agreement. Our goal is to have the signed Agreement by January 1, 1999. If you are unable to sign the agreement by March 1, 1999, your company will be assigned into the Standard Category. In the event that the agreement is not signed by June 1, 1999, we will be forced to discontinue sales to your company. Among the “preferred benefits,” the 1999 Marketing Plan included: • Fabrication and technical support; • Business productivity consulting; • Preferred lead program; • New product priority; • Payment terms of “2%, 15th, net 60 for all Preferred Fabricators;” • An “Inventory Adjustment Program,” whereby preferred fabricators could return certain unused inventory one time per year, contingent upon paying a restocking fee Gower for Gold preferred fabricators, higher for Silver and Bronze) and ordering new inventory at 125% of the value of the returned components; • Co-op advertising, sales and event funds. All preferred fabricators would receive advertising funds equal to 2% of qualified purchases and sales funds equal to 1.5% of qualified purchases. Gold preferred fabricators only would receive event funds equal to .5% of qualified purchases. • A margin improvement fund, or monthly credit based on a percentage of a fabricator’s volume of qualified purchases. The 1999 Marketing Plan explained that “[t]he primary objective of the Margin Improvement Fund is to improve overall profitability.” Gold preferred fabricators would receive a 3% credit, Silver 2%, and Bronze 1%; • Special discounts on components; and • A performance growth rebate, which would reward preferred fabricators with a 2% rebate upon achieving specified percentage growth relative to pri- or year purchases. Gold preferred fabricators obtained the rebate upon achieving 5% growth, Silver 10%, and Bronze 15%. Dudas later testified that Springs had “most definitely” intended for the blinds fabricators to rely on the statements made in the Orlando slide show and 1999 Marketing Plan as true. But, he clarified that those statements represented only Springs’s “intentions” in its new preferred fabricator program. Hicks later testified that Springs depicted its new initiatives as a means of reducing the number of fabricators with whom it dealt from the 60 to 80 it had been utilizing to approximately twenty. These “fortunate few” would receive “lots of benefits,” including those mentioned above as well as other benefits that had been discussed during the pilot-program discussions, including new product development, a “good/better/best” brand positioning effort, a low-priced “fighter brand,” “mega pricing,” and use of Springs’s equipment. Blind Maker also introduced into evidence a document, prepared by Springs, representing Blind Maker’s projected financial benefits if it participated in the preferred fabricator program at its 1999 projected volume of purchases. Adding the projected financial benefits from the new co-op advertising programs, margin enhancement fund, and the performance growth rebate yielded an estimated financial benefit of over $1.5 million. The document also compared these benefits to those Blind Maker had received under Springs’s 1998 incentive programs, and represented that Springs stood to gain more than $1.1 million in additional benefits. Evidence of a link to Project Overlord Following the Orlando conference, an internal Springs operations review analyzed fabricator feedback from the event. The review listed a number of the fabricators’ concerns including, (1) questions regarding Springs’s ability to deliver the promises made, (2) quality and service issues, (3) belief that the FLA was lopsided in Springs’s favor, and (4) concerns about Springs’s strategy to acquire [distributor/fabricators] and establish wholly owned fabrication capability. At the end of this list, the review states “ ⅞ ⅜ * We will be driven to execute OVERLORD on an accelerated basis.” Hicks signs the FLA Hicks did not sign the FLA at the Orlando conference. Springs mailed a revised version of the agreement to Blind Maker on January 7, 1999. Springs had made several revisions based on “the significant comments that were obtained in Orlando” in order to “make the Agreement completely serviceable to [Springs] and it’s [sic] fabricating partners.” The letter stated “a timetable for completion of the Agreement”: January 1999-March 1999 Signed Agreements are obtained and applicable benefits (Gold, Silver and Bronze Preferred Fabricators) begin to accrue the month following the signature. March 2, 1999 Fabricators not signing the Agreement will be classified as Standard Fabricators. June 1, 1999 Fabricators who have not signed the Agreement will be discontinued by their election of not signing the Agreement. After consulting with Blind Maker’s corporate counsel, Hicks signed the revised FLA on January 15,1999. The FLA itself made no mention of the Preferred Benefits discussed in Orlando or in the 1999 Marketing Plan. It did grant Blind Maker a “non-exclusive right and license” to use certain of Springs’s Graber trademarks listed in an exhibit to the agreement. The license permitted Blind Maker to use the trademarks within identified territory and distribution channels. Blind Maker agreed “to devote its best efforts to promote and sell the Licensed Product in the Primary Territory” and that all Licensed Products would utilize only Springs components and be installed and constructed in conformity with technical information and specifications provided by Springs. Springs was also given power to approve any advertising for the Licensed Products. Springs agreed, during the term of the agreement, to sell to Blind Maker all components for fabrication of the Licensed Products, subject to its right to decline any order. The agreement further provides that, “The prices and other terms and conditions of sale for the components are set forth in Springs’s price lists and standard terms and conditions of sale,” and that “Springs reserves the right to change prices and standard terms and conditions of sale and the features of its components at any time during the terms of this Agreement.” Additionally, the FLA provided that “[a]ll orders shall be subject to the approval of Springs’s credit department.” The FLA also obligated Springs to sell “sufficient quantities of samples and displays of the Licensed Products, catalogs, and other advertising and promotional aids,” and to make available, from time to time, fabricator technical information, including finished product specifications, fabrication and assembly instructions, and repair instructions. The FLA also permitted either party to terminate the agreement, with or without cause, upon six months’ advance written notice. Upon termination, Blind Maker’s license to use Springs’s trademarks and technical information would cease. The sole reference in the FLA to the Preferred Fabricator program was in section 13.01, which provided: Springs Fabricators are classified as Preferred (Gold, Silver, or Bronze) or Standard Distributor/Fabricator. Fabricator agrees to strictly comply with all requirements for its assigned category.... The requirements are subject to quarterly review and revision. Fabricator shall provide quarterly reports of its compliance status with respect to all performance targets assigned to Fabricator. The FLA contained an addendum identifying Blind Maker as a Gold Preferred Fabricator and setting forth the requirements that Blind Maker purchase a total of at least $2.5 million of qualifying products and at least $25,000 from each Graber product group; fabricate and distribute only Springs products unless Blind Maker obtained written approval to do otherwise; and meet a $12.3 million sales objective. Payment terms were again specified as “2% 15th, Net 60.” The FLA further provided that Springs would have a right of first refusal should Hicks sell the Blind Maker. However, Hicks handwrote a modification: “Springs shall not have a right of first refusal if ownership is transferred in accordance with a will to family members.” Finally, section 15.05 of the FLA provided: This Agreement contains the entire agreement between the parties hereto in respect of the subject matter hereof, and supercedes and cancels all previous agreements, negotiations, commitments and understandings, with respect to the subject matter hereof, whether made orally or in writing. After Hicks executed the FLA and forwarded it to Springs, Dudas wrote on January 22 to acknowledge receipt and “welcome you to our joint partnership.” Dudas added that “[sjince your signing date was January, 1999, the Preferred benefits will begin on February 1, 1999. These benefits will be distributed as per our 1999 Fabricator publication and our discussions in Orlando.” Hicks later testified that, although the FLA and other Springs documentation had referenced “Standard Fabricators,” Springs executives had “repeatedly” told him that Blind Maker had to sign the FLA as a preferred fabricator — i.e., to agree to the exclusivity requirement and preferred fabricator performance targets — or Springs would discontinue all business with Blind Maker on June 1, 1999. Hicks later learned that, in fact, Springs had continued to do business with other fabricators as standard fabricators. He testified that if he had understood that Blind Maker could have continued to do business with Springs as a standard fabricator, he would not have signed the FLA as a preferred fabricator. Hicks also testified as to his understanding at the time that the FLA and the preferred fabricator benefits “went together” and that if he had believed that Springs would not consider itself bound to provide the preferred fabricator benefits, he would not have signed the FLA as a preferred fabricator. Springs enforces the terms of the FLA The dispute that ensued stemmed from Springs’s attempts to enforce FLA terms that departed from the parties’ past business practices, Springs’s modification of certain preferred fabricator benefits, and Springs’s failure to deliver certain benefits as originally promised. Initially, Blind Maker received at least some of the preferred fabricator benefits represented in the 1999 Marketing Plan and prior discussions. Particularly important to Blind Maker was the 3% margin improvement fund. Also, even though the preferred fabricator requirements explicitly stated payment terms of “2% 15, net 60,” Blind Maker continued its practice of taking 2% early payment discounts even when it paid significantly later than fifteen days after invoice. However, Springs was slower to deliver on other preferred fabricator benefits, raised some component prices, and eliminated a truckload discount that Blind Maker had received prior to 1999. In April 1999, Hicks learned that Springs was selling a new type of Graber product through Home Depot. Hicks faxed a letter to Dudas complaining that the action “speaks volumes” about Springs’s retail strategy and “it raises serious issues of integrity.” Hicks also urged that he “signed this contract expecting a ‘fighter brand.’ Where is it? Instead we are taking a significant price increase on our basic components.” He added, “We should not be penalized for signing a contract or being loyal to Graber. We must have access to competitively priced components on those generic, commodity products.” Hicks also expressed concern that, “I also signed the contract expecting significant savings from your preferred programs. Between the price increase, losing the truckload discount, and the other perks, The Blind Maker is not doing well.” Hicks later testified that this was the first time he began to question Springs’s commitment to the promises he believed it had made in Orlando. On May 29, 1999, Hicks executed a second revised version of the FLA. This version included a narrower right of first refusal provision applying only where an owner attempted to sell a fabricator to one of Springs’s direct or indirect competitors. The agreement was otherwise identical to the version Hicks had signed in January except for some changes to the exhibits. The exhibit addressing Blind Maker’s obligations as a Gold preferred fabricator was unchanged. Beginning in June, Springs’s credit department began to inquire with Blind Maker regarding its practice of taking the 2% early payment discount even while paying significantly later that the fifteen days after invoice specified in the FLA. These discussions culminated in a September 29 conference call in which Springs informed Blind Maker that it would strictly enforce the “2% 15th, net 60” payment terms specified in the FLA. In Hicks’s view, due to Blind Maker’s cash cycle on inventory, this step eliminated any possibility it could obtain the 2% discount, effectively adding what Hicks estimated to be $25,000 or $80,000 per month to the company’s inventory costs. Relations between the two companies continued to sour thereafter. After a meeting with a Springs marketing executive that Hicks later recounted “created some animosity,” Dudas informed Hicks that, as Hicks recounted, “I basically wasn’t liked at Springs ... was considered to be leading a charge against them,” and that his “issues were mine and mine alone.” Dudas, according to Hicks, concluded by suggesting that Hicks “should consider my options, one of which was for Springs to buy The Blind Maker.” This was the first time that Hicks had heard such an idea from a Springs executive, and Hicks recounted that he felt “shocked and threatened that they even would consider a strategy like that.” Dudas subsequently left Springs some time thereafter, and, on October 22, 1999, Dudas -wrote Hicks thanking him for “your support,” and professing, “I know I have failed to deliver all that was promised at the outset of my tenure, but I do believe that we have made progress and that the current business direction is correct.” The white sale There is evidence that, during 1999, there was awareness within Springs that Blind Maker was encountering financial difficulties. An October email from Springs’s credit manager related an industry rumor that Blind Maker’s bank had begun carefully scrutinizing Blind Maker’s account balances and sending auditors twice monthly to do inventory verification. The email concluded that the rumors were only speculation, “but given the concerns we have, I feel it is worth documenting. We should also be wary of any large orders that may potentially be placed by [Blind Maker] to make their ‘quotas.’ ” Other internal documents reflected concern that Blind Maker’s accounts payable had swelled and had become late since Springs began strictly enforcing the fifteen-day requirement for the 2% early payment discount. Testimony from Springs employees further revealed that Springs had an internal “credit limit” for Blind Maker of $3.8 million and that Blind Maker had approached or exceeded this limit for much of the latter half of 1999. Blind Maker was not informed of any such limit, however, until several months later. In November, Blind Maker received a Graber “General Sales Bulletin,” addressed to “Graber Preferred Distributor/Fabricators,” announcing a “First Quarter 2000 White Sale” through which preferred fabricators could obtain steep discounts on large purchases of certain Graber components. Hicks testified that, having “lost” its customary 2% early payment discount, Blind Maker “bought as much as we could” — over $1 million more in inventory than in a typical month — both to avail itself of the white sale discounts and to meet the 5% growth target for receiving the preferred fabricator benefits’ 2% performance growth rebate. Blind Maker’s accounts payable rose to over $4.8 million by January 8, 2000. Hicks testified that Springs thereafter began putting unprecedented pressure on Blind Maker to pay down its debt. Later in January, Springs reduced Blind Maker’s internal “credit limit” from $3.85 million to $3.4 million. It did not inform Blind Maker of this reduction or the existence of a credit limit. Blind Maker ultimately agreed to a repayment schedule. Changes to the preferred fabricator benefits In March 2000, Springs held a meeting of its Preferred Fabricators in Chicago, at which it announced changes in its preferred benefits for 2000. Springs replaced the margin enhancement fund, which had been based solely on the volume of a fabricator’s purchases, with a “Business Development Fund,” which provided rebates tied to growth in purchase volume. Springs also modified the performance growth rebate to provide graduated percentages of rebates based not on fabricator classification, but percentage growth. These shifts to growth-based incentives from volume-based incentives created new difficulties for Blind Maker; because it was already a large fabricator, it regarded the required growth thresholds as virtually impossible to achieve. However, Blind Maker apparently did qualify for a new “Platinum” classification of preferred fabricators applicable to those with at least $5 million in annual purchases. These changes took effect on April 1. The “customer list” At the March meeting, Springs also introduced a new promotional program, “Clear to the TOP,” through which fabricators’ retail-level customers could obtain certain benefits, such as free merchandise, based on growth in them purchases of Graber products. Blind Maker and other fabricators were asked to mail “Clear to the TOP” program registration cards to their retail-level customers. The cards requested confidential past-sales data, including customer identities, addresses, telephone numbers, social security numbers or employer identification numbers, as well as sales histories. Blind Maker considered this “very confidential information,” and voiced concern to Springs. Springs represented that this information would be kept confidential — it would not be used by Springs but would be forwarded to a third-party administrator; only names, social security numbers and addresses for IRS purposes would be given to Springs. Springs would not have the sales history information. Springs also purportedly represented that only the third-party administrator would have access to the sensitive information and that Springs was using this arrangement so fabricators would not have to disclose their confidential information to Springs. Blind Maker gives notice to terminate On May 19, 2000, Blind Maker sent Springs a letter terminating the FLA effective six months later, November 19, 2000, as required by that agreement. Hicks later explained that Springs had eliminated any benefit for Blind Maker to continue as a preferred fabricator. An internal Springs briefing paper prepared for Springs president Ron Zabel lists several potential “choices” that “should be presented to Ray Hicks no later than 5/26/00.” Among these were Springs acquiring an equity position in Blind Maker. However, Hicks later testified that Springs did not offer that option. Subsequently, on July 6, Springs placed a “credit hold” on Blind Maker’s purchases for the first time. Springs witnesses later testified that Blind Maker’s termination notice was a factor in this decision. On July 13, Springs informed Blind Maker for the first time about its internal credit limit. Hicks testified that credit holds were “constant” thereafter and that Springs frequently informed Blind Maker that requested components were on back order when, Hicks maintains, other fabricators were able to purchase the same components. There was also evidence that Springs refused to complete warranty work submitted by Blind Maker at this time. Blind Maker and Springs attempted to negotiate the extent to which Blind Maker could sell products from rival manufacturers during the remaining term of the FLA and whether Springs could compete for Blind Maker’s retail-level customers. The evidence is disputed as to whether the parties ever reached any agreement. Project Texas Also in July, Springs executives began actively developing alternative channels through which Springs could reach the Texas market. Springs formulated a plan, “Project Texas,” for pursuing Blind Maker’s customers. An internal Springs memo circulated around this time by Springs’s new president, Ron Zabel, questioned whether Blind Maker should have a “hard” or “soft” landing following its notice of termination. Another internal Springs document lists two scenarios to be presented to Blind Maker. Scenario 1 listed a variety of options for the continued relationship between the two companies. This included (a) Spring’s buyback of existing inventory and increasing Blind Maker’s margin, (b) voiding the FLA and allowing Blind Maker to fabricate under its own brand, or (c) an exchange of debt for equity in which Springs would actively participate in the operation of Blind Maker. Scenario 2 contemplated Blind Maker’s demise: “SWF will implement actions to insure payment of the outstanding amount ($4.1M) SWF will take action(s) to maintain sales of its products in the markets formerly served by TBM.” A document entitled “Ray, we want you back!!” also reflects the hard or soft landing strategy. This document lays out a number of inducements for the Blind Maker to return as a Springs fabricator and states that, if Blind Maker does not agree within 24 hours, Springs will demand repayment of all accounts receivable within 60 days, cancel all pending and future orders, and “[Springs] will immediately deploy appropriate resources to enable it to penetrate all markets now being served by Blind Maker.” There is evidence that, by September, Springs was using the confidential customer information from the “Clear to the TOP” promotion to compete directly for Blind Maker’s retail-level customers. There is also evidence that Springs provided this information to rival fabricators to enable them to compete for Blind Maker’s customers. At trial, Springs’s CFO conceded that he had believed it was wrong for Springs to use the confidential customer information in that manner. At this point in their relationship, Springs began refusing to accept unopened inventory that Blind Maker was attempting to return. The lawsuit On September 29, 2000, Blind Maker filed suit against Springs in Travis County district court, claiming fraud, breach of contract, negligence, negligent misrepresentation, misappropriation of trade secrets, tortious interference with business relations, promissory estoppel, and claims under the Texas Deceptive Trade Practice Act and the Wisconsin Fair Dealership Act. Springs counterclaimed under the FLA for $2.3 million, Blind Maker’s remaining credit balance. Against this counterclaim, Blind Maker asserted various defenses, including that it was fraudulently induced into the FLA. The case was tried to a jury. Although the jury heard evidence relevant to all of Blind Maker’s liability claims, before submission Blind Maker dismissed with prejudice all of its claims except fraud. As for damages, Blind Maker submitted only past and future “Lost Profits that were natural, probable, and foreseeable consequence of Springs’s fraud.” The jury found that Springs had committed fraud, and awarded Blind Maker $5,157,240 in past lost profits; it awarded no future lost profits. The jury further found by clear and convincing evidence that the harm to Blind Maker resulted from fraud, and awarded $2,090,000 in exemplary damages. However, the jury also found that Blind Maker failed to comply with its payment obligations under the FLA and that such failure was not excused by either of two counterclaim defenses Blind Maker submitted to the jury — fraudulent inducement or anticipatory breach. The jury awarded Springs $2,043,660 in damages. Only Springs now appeals. DISCUSSION Springs raises four primary issues on appeal: (1) the jury’s finding of fraud is not supported by legally or factually sufficient evidence; (2) the jury’s actual-damage award is not supported by legally or factually sufficient evidence; (3) because its liability finding and actual-damage award are not supported by the evidence, the jury’s exemplary-damage predicate finding and award should likewise be overturned; and (4) in the alternative, the judgment must be reformed to award post-judgment interest accruing after September 1, 2003 at the rate of 5% rather that 10%. The jury’s fraud finding In its first issue, Springs challenges the legal and factual sufficiency of the evidence to support the jury’s finding of fraud. Standard of review In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). There is legally insufficient evidence or “no evidence” of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Patlyek v. Brittain, 149 S.W.3d 781, 785 (Tex.App.-Austin 2004, pet. denied). More than a scintilla of evidence exists when 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.” Havner, 953 S.W.2d at 711 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995)). If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 183 (Tex.1995). In reviewing a factual insufficiency point, we consider, weigh, and examine all the evidence presented at trial. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). Overview of the jury charge and evidence The starting point for our analysis of Springs’s evidentiary sufficiency challenge is the charge as submitted to the jury. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex.2003) (“Before a court can properly conduct a factual sufficiency review, it must first have a clear understanding of the evidence that is pertinent to its inquiry. The starting point generally is the charge and instructions to the jury.”); Ancira Enters., Inc. v. Fischer, 178 S.W.3d 82, 93 (Tex.App.-Austin 2005, no pet. h.). The focus of our inquiry, then, is Question 1, in which the jury was asked, “Did Springs commit fraud against The Blind Maker?” The jury was instructed that “fraud can occur through either: (1) misrepresentation; or (2) failure to disclose,” and then proceeded to list the elements of both forms of fraud: 1. Fraud by misrepresentation occurs when— a. a party makes a material misrepresentation; b. the misrepresentation is made with the knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion; c. the misrepresentation is made with the intention that it should be acted on by the other party; and d. the other party acts in reliance on the misrepresentation and thereby suffers injury. “Misrepresentation” means: a. A false statement of fact; OR b. A promise of future performance made with an intent, at the time the promise was made, not to perform as promised. 2. Fraud by failure to disclose occurs when— a. a party fails to disclose a material fact within the knowledge of that party, b. the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth, c. the party intends to induce the other party to take some action by fading to disclose the fact, and d. the other party suffers injury as a result of acting without knowledge of the undisclosed fact. The jury answered Question 1 in the affirmative. The gist of Blind Maker’s fraud claim was that Springs committed a series of independently actionable fraudulent acts to effectuate the “Overlord” plan. Blind Maker alleged the following specific fraudulent acts: • Fraudulently inducing Blind Maker to enter into the FLA, which Blind Maker contends effectively trapped the company in an agreement that required Blind Maker to sell exclusively Graber products and allowed termination only by six-months’ advance notice (the “fraudulent-inducement” theory); • Fraudulently failing to disclose to Blind Maker that it was in danger of exceeding Springs’s “secret” credit limits before allowing it to make large credit purchases in connection with the December 1999 white sale promotion (the “white sale” theory); • Fraudulently misrepresenting that Blind Maker’s customer list information collected through the “Clear to the TOP” promotion would be kept confidential, then using it to compete against Blind Maker a few months later (the “customer list” theory); • Fraudulently failing to disclose that, after Blind Maker gave notice to terminate the FLA, Springs would (1) place a credit hold on its purchases; (2) treat it “differently” than other preferred fabricators; (3) refuse to do business with it as a standard fabricator; (4) use the customer information obtained through the Clear to the TOP promotion to compete against it; and (5) make false statements to Blind Maker’s customers concerning why Blind Maker was no longer selling Springs’s products (the “termination” theory). Fraudulent inducement theory In support of its fraudulent inducement theory, Blind Maker elicited the following evidence of representations or nondisclo-sures by Springs before Hicks signed the FLA: • Hicks testified that Springs “repeatedly” told him that Blind Maker would have to sign the FLA as a preferred fabricator by June 1, 1999, or Springs would cease to do business with Blind Maker. Hicks also testified that Springs never told him that he could opt to continue doing business as a standard fabricator, as he later learned that Skandia, one of Blind Maker’s competitors, did; • Hicks testified that he was never told that the 3% margin development discount could change or would be changed in March 2000; • Hicks testified that he was never told that Springs would strictly enforce the 2% early payment discount for payment within fifteen days of invoice; • Hicks testified that Springs’s expressed intentions with the FLA and preferred fabricator program was to eliminate “bottom feeders;” • Hicks testified that he was never told about “Overlord” or that Blind Maker was a target; • Evidence regarding the preferred fabricator benefits represented to Hicks during the Orlando conference and in the 1999 Marketing Plan. These included (i) new product development; (ii) new product priority (distributor/fabricators would be able to sell new products for a year before it went into the retail channel); (iii) Nanik blinds would not be sold in the retail channel (so as to avoid channel conflicts); (iv) a lower-priced “fighter brand” would be developed and deployed, as well as “good-better-best” product positioning; (v) price parity between the distributor/fabricator channel and the retail channel; (vi) a “mega pricing” program to combat low-priced generics; (vii) smaller, cheaper samples; and (viii) pull national consumer advertising. Blind Maker also claims that Springs misrepresented that these benefits and FLA “went together as a whole.” Hicks testified that he wouldn’t have signed the FLA as a preferred fabricator if these benefits had not been promised and that Springs failed to fulfill each represented benefit; and • Hicks testified that Springs never told him that it viewed its representations regarding the preferred fabricator benefits as mere business “intentions” and not as firm commitments. Springs contends that none of this evidence can have probative value because of the operation of various legal rules. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 828, 334 (Tex.1998) (legal sufficiency or “no evidence” point will be sustained when court is barred by rules of law or of evidence from giving weight to only evidence offered to prove a vital fact); Havner, 953 S.W.2d at 711. The jury’s failure to find fraudulent inducement in Question 6 Springs’s first argument is predicated on the jury’s failure to find in Blind Maker’s favor on its fraudulent-inducement defense to Springs’s counterclaim under the FLA. Question 6 of the charge, presenting Blind Maker’s affirmative defenses, asked, “Was The Blind Maker’s failure to comply [with the FLA] excused,” and included an instruction regarding two defenses: [FJailure to comply by The Blind Maker is excused if any one of the following is true: Failure to comply by The Blind Maker is excused by Springs’s previous failure to comply with a material obligation of the [FLA]; or Failure to comply by The Blind Maker is excused if The Blind Maker entered into the [FLA] as a result of fraud, if any, by Springs. The question then explicitly linked the term “fraud” in Question 6 to the definitions and instructions accompanying Question 1: “Please refer to Question 1 for instructions on fraud.” The jury answered “no” to Question 6. Because the two defenses were submitted in the disjunctive, the jury necessarily failed to find either fraudulent inducement or anticipatory breach. Springs reasons that because the jury failed to find in Question 6 that Blind Maker was fraudulently induced into the FLA, the jury necessarily could not have relied on evidence of fraudulent inducement in finding some fraud in Question 1. It extrapolates that, in our sufficiency review, we must consider only potential evidence of fraud that is not “inducement-related.” Blind Maker assails this argument on two chief grounds. It first cites the proposition that a jury’s failure to find in favor of a party on an issue is not an affirmative finding to the contrary but merely indicates that the party failed to carry its burden of proving that fact. See C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966); Gensco v. Canco Equip. Inc., 737 S.W.2d 345, 347-48 (Tex.App.-Amarillo 1987, no writ). Second, Blind Maker suggests that Springs is attempting to revive an argument, waived at trial, that the jury’s findings in Questions 1 and 6 fatally conflict. We agree that Springs has waived the argument it attempts to assert here. In the district court, Springs argued that the jury’s responses in Questions 1 and 6 fatally conflicted and rejected the possibility that the responses could be reconciled. Blind Maker maintained that (1) Springs waived its conflict complaint by failing to object before the jury was discharged; and (2) while conceding “there is some overlap in the facts inquired about,” the two responses could be reconciled because Question 1 inquired about additional acts of fraud beyond Blind Maker’s fraudulent inducement into the FLA. On appeal, Springs does not attempt to argue conflict and does not appear to dispute that it waived that argument; instead, it purports to adopt Blind Maker’s position at trial that the responses could be reconciled and additionally attempts to derive implications for our sufficiency review of the Question 1 finding. The unstated premise underlying Springs’s argument on appeal is that the jury’s responses in Questions 1 and 6 would conflict unless we reconcile the two by construing the jury’s Question 1 finding to be based solely upon evidence of fraud other than fraudulent inducement. This is the type of analysis that Texas courts perform when a conflict complaint is raised. See, e.g., Bender v. Southern Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex.1980) (reconciling jury’s liability findings on certain issues with failures to find on other issues). Absent a conflict complaint, there is no basis for reconciling the jury’s responses, and the court must give effect to each finding in the ordinary fashion. See id. A conflict objection can be waived. St. Paul Fire & Marine Ins. Co. v. Murphree, 168 Tex. 534, 357 S.W.2d 744, 748-49 (1962) (rendering of judgment on fatally conflicting findings is not fundamental error and can be waived). Especially in the face of general principles of sufficiency review, which require us to consider all of the evidence in light of the charge actually submitted, we decline to reconcile the jury’s responses in Questions 1 and 6, much less rely on such reconciliation to limit our sufficiency review, because Springs did not first preserve a conflict objection at trial. See Associated Indem. Corp. v. CAT Contracting, 964 S.W.2d 276, 285-86 (Tex.1998); Plas-Tex, 772 S.W.2d at 445. To hold otherwise would create an end-run around the modern error preservation requirement that parties object to conflicting jury findings before the jury is discharged and the sound policies that underlie that requirement. What the jury intended by findings that potentially conflict is best determined by the jury itself, a procedure made available by timely objection before the jury is discharged, see Tex.R. Civ. P. 295, rather than by appellate courts drawing “speculative” conclusions regarding “the jury’s thought processes or of its intentions in giving its answers to the two issues,” as Springs asks us to do here. C. & R. Transp., 406 S.W.2d at 195. We accordingly hold that Springs waived its argument that the jury’s failure to find in Blind Maker’s favor regarding its fraudulent inducement defense limits the scope of our sufficiency review of the jury's Question 1 fraud finding. “Con-tort’’ cases Next, Springs contends that Blind Maker’s fraudulent-inducement claim is, in substance, a claim for damages from Springs’s failure to perform under the FLA, and thus can be brought only as a contract claim. See Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex.1991). In DeLanney, the supreme court held that a cause of action for “negligence” could not be based on an allegation that a party failed to perform duties subsumed in a contract because such an action sounded in contract and not tort. Id. at 494-95; see also Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13-14 (Tex.1996) (extending DeLanney to hold that nonperformance of contract not actionable under DTPA). Subsequently, in Formosa Plastics Corp., USA v. Presidio Eng. & Contr., Inc., 960 S.W.2d 41, 46-47 (Tex.1998), the supreme court rejected the application of DeLanney to preclude a fraudulent-inducement claim. The court noted that Texas law has long imposed a tort duty, independent of any contract, to abstain from inducing another to enter into a contract through the use of fraud. Id. at 46 (citing Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 162 (Tex.1995), and Dallas Farm Mach. Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 239 (1957)). It likewise noted that it had “repeatedly recognized that a fraud claim could be based on a promise made with no intention of performing, irrespective of whether the promise is later subsumed in a contract.” Id. (citing Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 597 (Tex.1992)). It also established that tort damages are not precluded simply because a fraudulent representation causes only an economic loss. Id. at 47. “Accordingly,” the supreme court held, “tort damages are recoverable for a fraudulent inducement claim irrespective of whether the fraudulent representations are later subsumed in a contract or whether the plaintiff only suffers an economic loss related to the subject matter of the contract.” Id. To distinguish Formosa, Springs relies on the jury’s failure to find fraudulent inducement in Question 6, which it equates to a finding of no fraudulent inducement. “This is a misinterpretation of the issue and the answer.” C. & R. Transp., 406 S.W.2d at 194. The jury’s failure to find fraudulent inducement in Question 6 is not an affirmative finding of no fraudulent inducement. Id. In light of this principle, and Springs’s waiver of any conflict-related complaint relating to the jury’s consideration of fraudulent inducement evidence in finding fraud in Question 1, we must reject Springs’s attempt to use the Question 6 finding to avoid Formosa. Assuming there is otherwise competent evidence of fraudulent inducement, DeLan-ney does not stand as a barrier to our considering that evidence as support for the jury’s Question 1 fraud finding. Formosa, 960 S.W.2d at 47. Merger clause In section 15.05 of the FLA, Blind Maker contractually agreed that (1) the FLA “contains the entire agreement” between it and Springs “with respect to the subject matter hereof’; and that the FLA (2) “supersedes and cancels all previous agreements, negotiations, commitments and understandings, with respect to the subject matter hereof, whether made orally or in writing.” Springs contends that section 15.05 negates, as a matter of law, the reliance element of Blind Maker’s fraud claim to the extent it arose before Hicks’s entry into the FLA; ie., its fraudulent inducement theory. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 179-80 (Tex.1997) (disclaimer provision in settlement agreement defeated fraudulent inducement claim by negating reliance on pre-contractual representations); Prudential, 896 S.W.2d at 162 (“as is” clause and disclaimer of reliance negated reliance element of fraud claim predicated on pre-contractual representations). Blind Maker attempts to distinguish section 15.05 from the type of contractual provisions addressed in Schlumberger ahd Prudential. It points out that Schlumber-ger involved a disclaimer of reliance in a settlement release, see Schlumberger, 959 S.W.2d at 177-80, while Prudential involved a contractual “as is” clause and disclaimer of reliance in a real estate purchase agreement. See Prudential, 896 S.W.2d at 160. Blind Maker observes that section 15.05 is a merger or integration clause, and maintains that it can only prevent the use of parol evidence to vary the written terms of the FLA and does not bar tort claims. We reject Blind Maker’s argument. In general, a “merger clause” is a contractual provision to the effect that the written terms of the contract may not be varied by prior agreements because all such agreements have been merged into the written document. IKON Office Solutions, Inc. v. Eifert, 125 S.W.3d 113, 125 n. 6 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (citing Black’s Law Dictionary 989 (6th ed.1990)). Such clauses emphasize the parties’ intent to invoke the “merger doctrine.” Fish v. Tandy Corp., 948 S.W.2d 886, 899 (Tex.App.-Fort Worth 1997, pet. denied) (“A written merger clause ... is essentially a memorialization of the merger doctrine.”). Under the merger doctrine, prior or contemporaneous agreements between the same parties, concerning the same subject matter, are absorbed into a subsequent agreement. See Texas A&M Univ.-Kingsville v. Lawson, 127 S.W.3d 866, 872 (TexApp.-Austin 2004, pet. filed); Fish, 948 S.W.2d at 898; see generally Hubacek v. Ennis State B