Full opinion text
OPINION ELSA ALCALA, Justice. Appellants, Country Village Homes, Inc., B & A Realty, Inc., M.B. Schauer Homes, Inc., Schauer Family Trust, and Monte B. Schauer (collectively Country Village), appeal a judgment, entered in accordance with the jury’s verdict, that awarded $550,000 in damages to appellees, Robert E. and Sherry Patterson, in a dispute over the construction of the Patter-sons’ house. The jury determined that the Pattersons owed Country Village nothing for various “extras” over and above the contract price; that the appellants, though ostensibly separate entities, acted as a single business enterprise (the Single Business Enterprise theory); that Schauer was responsible for the conduct of Country Village Homes, Inc. (the Alter Ego theory); that flaws in the construction of the house breached Country Village’s contract with the Pattersons; that the cost of repair was $300,000; and, that the difference between fair market value of the property had it been built properly and the fair market value of the property if repaired would be $250,000. The trial court entered judgment in favor of the Pattersons against Country Village Homes, Inc., B & A Realty, Inc., M.B. Schauer Homes, Inc., Schauer Family Trust, and Monte B. Schauer, jointly and severally, in the amount of $712,890.41. On appeal, Country Village presents five issues, asserting that: (1) Under article 2.21 of the Business Corporations Act, (a) any recovery on the common law theory of Single Business Enterprise is preempted; (b) the article’s requirement of actual fraud was not properly presented to the jury in the questions concerning the Pattersons’ Alter Ego and Single Business Enterprise theories; and (c) the evidence is legally and factually insufficient to support the jury’s findings that the Pattersons proved their Alter Ego or Single Business Enterprise theories; (2) Under the Residential Construction Liability Act, Country Village made a reasonable settlement offer or there was legally and factually insufficient evidence to prove otherwise, and the damages available to the Pattersons were thereby limited; (8) The evidence generally was legally and factually insufficient to support the jury’s findings on liability and damages; (4) The absence of certain evidence from the appellate record requires a new trial; and (5) Country Village’s claim for “extras” was established as a matter of law, or alternatively the jury’s contrary finding was against the great weight and preponderance of the evidence. We conclude that Country Village only preserved its sufficiency of the evidence arguments for our review. We hold that the evidence is legally and factually sufficient to support the jury’s findings. We affirm. Background Country Village Homes, Inc., a Texas corporation owned and operated by Schauer, built custom homes in certain subdivisions in northwest Houston. Schauer also controlled two other Texas corporations: M.B. Schauer Homes, Inc., a building company for other subdivisions; and B & A Realty, a land developer. Schauer was the sole shareholder, director, and president of all three corporations. The Schauer Family Trust was created by Schauer for the benefit of his family. Robert Patterson and his wife Sherry, in their search for their “dream house,” found the Gleannloch subdivision and chose Country Village to construct their custom home. They selected architect Kirby Fleming, whom Schauer recommended, to design the house to their specifications. The Pattersons and Country Village signed an earnest money contract in June 1999 for the purchase of the lot and the construction of the house for a total of $719,195 to be paid on a draw schedule. The contract expressly referenced and incorporated Fleming’s plans, and provided that “[i]n the event Purchaser desires any extras, Purchaser shall pay for said extras in advance.” The contract, however, does not precisely match the plans; for example, it includes “Additional Conditions,” the first of which is “Stucco trim around windows,” whereas the plans called for cast stone around the windows. Shortly after signing the earnest money contract, the Pattersons granted Country Village a mechanic’s lien on the property. The Pattersons actively participated in the construction of their house. They frequently visited the building site, and made many requests for changes in the plans. They requested that a first floor wall be moved to add space to the living area. They opted for eight-foot doors instead of six-foot doors. Sherry and her interior decorator opted for various upgrades from the original plans. Robert, who enjoyed cooking out, asked that a “summer kitchen” be built in the backyard; later, when dissatisfied with Country Village’s efforts, the Pattersons had most of the original summer kitchen demolished and brought in an outside company to redo that part of the project. In November 1999, the Pattersons asked Schauer what extras and overages they owed on upgrades they had already selected. Schauer presented them with an invoice totaling $11,564.96. Robert gave Schauer a cheek for $15,000 to cover the invoice and the price of a refrigerator that had been ordered but that had not yet been charged to Country Village. The Pattersons asked Schauer how much more they could expect to pay in extras; he told them that they would not owe more than an additional $15,000. In April 2000, when preparing to close on the house, the Pattersons contacted Schauer again about extras. On April 14, Robert drove to Schauer’s office and received a bill for extras in excess of $100,000. Distraught, Robert called Schauer, who said that he had not yet reviewed the bill. The Pattersons did not pay this bill, and moved into the house on April 19 or 20. On April 26, Schauer came to the house to meet with the Pattersons. The Patter-sons were joined by their real estate agent and them interior decorator. After arriving, Schauer spent nearly an hour in the backyard talking on his mobile phone. The real estate agent and the decorator left for other clients; after they were gone, Schauer came inside to talk. Schauer went with Robert into Robert’s office, and presented a second bill for extras. The listed extras totaled $88,709.01; after the deduction of certain credits, Country Village claimed that the Pattersons owed $54,854.01. Schauer did not bring any documentation to support the individual charges on the bill. Robert felt the second bill was “still ridiculous,” and included items for which the Pattersons had already paid outside of the boundaries of the contract. Robert believed that many of the items were charges that had accrued before Schauer provided the partial invoice for extras the previous December, but that had not been included in that invoice, which Schauer at the time said included all the charges that the Pattersons then owed. Schauer left without resolving the dispute. Robert instructed the lender to send the last of the draw schedule payments to him instead of Schauer. When Schauer called requesting the last payment, Robert asked if Schauer had signed an “All Bills Paid Affidavit,” and Schauer said that he had. Robert sent the last of the draw schedule payments to Country Village in May 2000. The affidavit in question was included in the record as plaintiffs exhibit 12; it is notarized, and indicates that Schauer signed it on June 21, 2000. In the meantime, the Pattersons noticed flaws in the house. On April 28, two days after receiving the second bill for extras, the Pattersons sent a “punch list” to Country Village requesting that certain minor repairs be made. Country Village did nothing regarding this list. The Patter-sons paid others to get much of the repair work done. The next communication the Pattersons received from Country Village was an August 4, 2000 letter from Country Village’s attorney that demanded payment for the extras in the amount of $20,581.59. Country Village filed suit against the Pattersons for that amount on October 23. The Pat-tersons hired counsel, who responded on November 13 with a letter that noted that the items on the final punch list were not completed as promised and added 14 additional complaints, including that their porte-cochere was collapsing. On December 7, the Pattersons counter-sued Country Village, alleging breach of contract, fraud, violations of the Deceptive Trade Practices Act, and damages for violations of the Trust Fund Statute. On December 19, they filed a third-party petition against Schauer, alleging that Country Village was his alter ego. Country Village responded with a letter dated December 29 that purported “to make an offer of settlement pursuant to Section 27.004 of the Residential Construction Liability Act.” The letter made various offers to address most items on the punch list — which had since been updated by the Pattersons — as well as the additional items in the Pattersons’ letter of November 13. The proposed standard of repair was “to the reasonable satisfaction of the Pattersons,” and in case of a dispute the parties were to defer to the home warranty inspector. In the letter, Country Village required payment of one-half of the $20,581.59 for extras be paid before repair work began, and the remainder of the charges when repairs were complete. The Pattersons did not respond to this letter. At some point between the exchange of letters and the trial of the case, Country Village transferred most or all of its assets to another building company belonging to Schauer, Vintage Custom Homes. Further, Country Village transferred $100,000 as a “consulting fee” to M.B. Schauer Homes, which was not engaged in any active business at the time. No consulting appears to have been done; a witness at trial said the $100,000 transfer was in fact for tax purposes. The case went to trial in September 2003. Country Village’s live pleadings were its first amended petition and third supplemental petition, in which it sought a total of $31,883.09 in damages from the Pattersons, along with attorney’s fees and interest. In their sixth amended consolidated counterclaim and third-party petition, the Pattersons sought recovery against all appellants as well as Vintage Custom Homes, raising claims of civil conspiracy, negligence, negligent misrepresentation, common law fraud, statutory fraud under the Residential Construction Liability Act, violations of the Deceptive Trade Practices-Consumer Protection Act, breach of contract, breach of express and implied warranties, and declaratory relief. They did not specifically plead a dollar amount of damages, but alleged that the defendants should be held jointly and severally liable and the corporate veil should be pierced under a number of theories including that each of the corporate entities and the trust were alter egos for Schauer and each other, and that the equitable doctrine of Single Business Enterprise should apply. At trial, the issues presented were whether the Pattersons owed Country Village for extras, and whether and to what extent Country Village owed the Patter-sons for repairs. No individual extra was given any special emphasis, but the Patter-sons pointed to a number of flaws in the construction, including: • a slope in the floor on the second story; • a set of windows that did not close properly; • leaks in the roof; • cracks in concrete; • cracks in the kitchen tile as a result of cracked concrete; • tilted cast-stone pillars near the front door; • a lack of “expansion joints” in the exterior brick walls; and • the collapsing porte-cochere. Country Village first called Schauer to testify. He described the nature of the construction process, including the inspections that take place periodically while the home is being built. He described some of the extras that the Pattersons requested. He stated that the problems with the house were entirely cosmetic, and that the Patterson’s proposed solutions were far too drastic. He examined arrays of photos that had been taken over three years, explaining how these photos showed that the problems with the house were not structural. He acknowledged that his companies met many of the factors associated with the Pattersons’ joint-and-several liability theories, for instance keeping a single office and using one receptionist and one accountant, as well as making interest-free loans between the companies. He also explained that the corporate appellants were distinct entities because, for example, the different building companies operated in different subdivisions, and because one was not a building company at all. He said that fund transfers between the companies were for tax purposes, and not to avoid liability in this case. Country Village also called a number of expert witnesses in the field of engineering, all of whom agreed that the problems with the Pattersons’ house were largely cosmetic. They described the limited repairs that they believed were necessary. They also said that the problems identified by the Pattersons either were normal variations — for example, that no house is completely level — or were normal characteristics of materials used. Inasmuch as Country Village’s experts acknowledged errors in the construction, they claimed repairs would be easy and inexpensive, and that the Pattersons should have allowed Schauer’s subcontractors to complete the repairs. Country Village further called two witnesses in relation to financial issues. One was an appraiser, who estimated that the Pattersons’ house was worth $855,000 as constructed. The appraiser further stated that whatever defects the house might have, its market value would remain $855,000 so long as proper repairs were made. Another was the accountant for Schauer’s businesses, who stated that Internal Revenue Service regulations and Generally Accepted Accounting Principles permit Schauer to have different businesses and different corporations. Country Village also attempted to paint the Pattersons as vindictive, and their counterclaims as a form of revenge. For example, John Darbonne, the on-site salesman for the Pattersons’ subdivision, testified that Robert called him after receiving the $100,000 bill. Darbonne stated that he had taken notes following the conversation, one of which read: “He’s really pissed. Will go after him in every way he can.” The Pattersons testified that they were the wronged parties, not Country Village, and that the problems with the house had ruined the experience of moving into their dream home. For example, the sloping upper floor felt like a “fun house,” and people who sat on the upstairs commode felt like they would slip off. They averred that, contrary to the statements of Country Village’s experts, the slope in the upper floor was getting worse over time. Although they admitted to ordering a number of extras, and stated that they wanted to pay what they owed, they presented a number of reasons why the various amounts that Country Village asked them to pay were unreasonable. They contended that Country Village’s settlement offer of December 29, 2000 was unreasonable because it required them to pay money that was in dispute in order to have repairs made, when the need for some of those repairs was not in dispute. They stated that Schauer repeatedly told them that any extras after they wrote a $15,000 check in December 1999 would cost no more than a further $15,000. They said, overall, that they felt that they had been taken advantage of in pursuit of their dream house. The Pattersons also presented expert witnesses who testified regarding the extent of the damages alleged. Their structural engineer stated that the second floor was sagging because of an undersized beam or beams, and the framing of the second floor would need to be entirely replaced. This, he said, would require a replacement roof. The porte-cochere would require extensive repair, and the cracks in the concrete would need to be filled. The engineer estimated that repairs would cost approximately $300,000. The CEO of the company that the Patter-sons hoped to hire to repair the house testified that, based on the engineer’s report, the repairs would cost in excess of $350,000, and no lesser repairs would be effective. The Pattersons’ financial expert cast doubt on the charges sought by Country Village, testifying that he had “extreme difficulty in satisfying myself’ as to the validity of a variety of line items included in Country Village’s demand letter. He stated that even giving the benefit of the doubt to Country Village on the questionable items, he estimated that the Pattersons had overpaid Country Village, and were entitled to a refund. He also testified that the conduct of Country Village and the other defendants satisfied the Single Business Enterprise and Alter Ego theories. The Pattersons’ real estate appraiser testified that the market value of the house, had it been properly constructed, would have been approximately $885,000. The appraiser also explained the theory of “stigma,” under which it is possible to estimate the reduction in market value of a home due to the reluctance of buyers to purchase a house that has undergone extensive repairs. He explained the methods by which he applied this theory, and stated that he estimated the value of the Pattersons’ house — if it were repaired as the Pattersons’ engineer recommended— would be approximately $575,000, a difference of $310,000. By a vote of 10-2, the jury found that: • Country Village did not install any extras or perform any work installing extras for which it had not been compensated; • Country Village’s section 27.004 settlement letter was not a reasonable offer; • Country Village failed to substantially comply with the contract, and that the failure was a “producing cause” of damage to the Pattersons; • reasonable repair damages were $300,000, and reasonable stigma damages were $250,000; and • all appellants acted as a Single Business Enterprise, and Schauer was responsible for the conduct of Country Village Homes, Inc. Country Village filed a motion for judgment notwithstanding the verdict. The Pattersons filed a motion to sever Vintage Custom Homes from the case. The trial court severed Vintage Custom Homes, and entered judgment on the verdict against the remaining defendants, awarding damages and pre- and postjudgment interest. Country Village then filed a motion for new trial that the trial court denied. Country Village timely filed a notice of appeal and properly paid for the reporter’s record in this case. However, the reporter’s record was not filed until after we held the court reporter in contempt of court. The record remains incomplete. At our request, the trial court entered findings of fact and conclusions of law regarding the incomplete reporter’s record. General Standards of Review In four of its five issues on appeal, Country Village contends that the evidence is legally and factually insufficient to support most of the jury’s findings. In their response, the Pattersons contend that various of Country Village’s issues and sub-issues are objections to the jury charge that have not been preserved for our review. We must apply different standards of review for these two arguments. A. Sufficiency of the Evidence In reviewing the trial court’s verdict for legal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). A challenge to the legal sufficiency of evidence will be sustained when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla. Id. at 810. Evidence does not exceed a scintilla if it does no more than create a mere surmise or suspicion that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). In determining the factual sufficiency of the evidence to support a jury’s finding, courts of appeals are to weigh all the evidence, both for and against the finding. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). In reviewing a factual sufficiency challenge to a finding where the burden of proof is not on the complaining party, we set aside the verdict only if the evidence in support of the finding is so weak as to render the verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In reviewing a factual sufficiency challenge to a finding where the burden of proof is on the complaining party, that party must show that “the adverse finding is against the great weight and preponderance of the evidence.” Dow Chem., 46 S.W.3d at 242. In conducting our review, we may not substitute our judgment for that of the jury, which is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.8d 757, 761 (Tex.2008). B. Preservation of Objections to the Jury Charge “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex.R. Civ. P. 274. To be sufficiently specific, the party’s objection must identify the claimed error and explain the basis of the party’s complaint. Tex.R. Civ. P. 274; Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex.1986). A sufficiently specific objection enables the trial court to understand the party’s precise grounds and to rule. Castleberry, 721 S.W.2d at 276. We determine whether a party has preserved error in the jury charge by inquiring whether a party has (1) presented to the trial court a timely request, motion, or objection, (2) stated the specific ground, and (3) obtained a ruling. Tex.R.App. P. 33.1(a); see In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992); see also Miga v. Jensen, 96 S.W.3d 207, 212-13 (Tex.2002) (upholding preservation based on Payne); Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450, 451-52 (Tex.1995) (noting that Payne did not revise preservation requirements of rules of civil procedure regarding jury charge, but did mandate that those requirements be applied in common sense manner that serves, rather than defeats, rules of procedure). Further, a party must present its objections to the charge (1) to the trial court, either in writing or by dictating them to the court reporter, (2) in the presence of the court and opposing counsel, and (3) before the charge is read to the jury. Tex.R. Civ. P. 272. An objection not presented to the trial court during this time is waived. Id. Specifically, for the trial court “to resolve a legal issue before the jury could properly perform its fact-finding role[,] ... a party must lodge an objection in time for the trial court to make an appropriate ruling without having to order a new trial.” Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (quoting Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999)). Piercing the Corporate Veil In its first issue, Country Village complains that the Single Business Enterprise and Alter Ego theories — presented to the jury in questions nine and ten — are unsupported by Texas law or by legally or factually sufficient evidence. Specifically, Country Village asserts that: • the Single Business Enterprise and Alter Ego theories are contrary to and pre-empted by article 2.21 of the Business Corporation Act, Tex. Bus. Corp. Act Ann. art. 2.21 (Vernon 2003); • the jury did not find “actual fraud” as required by article 2.21, id. art. 2.21(A)(2); • if the jury found “actual fraud,” that finding is not supported by legally or factually sufficient evidence; and • the jury’s findings on the remaining elements of the Single Business Enterprise and Alter Ego theories are not supported by legally or factually sufficient evidence. The theories of Single Business Enterprise and Alter Ego are both methods to disregard the corporate fiction. Aluminum Chem. (Bolivia) Inc. v. Bechtel Corp., 28 S.W.3d 64, 68 (Tex.App.-Texarkana 2000, no pet.). They create a means of imposing liability where none would otherwise exist. Id. The two theories are separate and distinct, id., and the trial court presented separate questions on each theory. A. Single Business Enterprise The Single Business Enterprise theory is an equitable doctrine used to disregard separate corporate identities when multiple corporations do not operate separately, but instead integrate their resources to achieve a common business purpose. Hoffmann v. Dandurand, 180 S.W.3d 340, 347-48 (Tex.App.-Dallas 2005, no pet.); Old Republic Ins. Co. v. Ex-Im Servs. Corp., 920 S.W.2d 393, 395-96 (Tex.App.-Houston [1st Dist.] 1996, no writ). Its viability in Texas, however, is not clear. The supreme court has expressly declined to decide whether the Single Business Enterprise theory is “a necessary addition to Texas law regarding the theory of alter ego for disregarding corporate structure.” S. Union Co. v. City of Edinburg, 129 S.W.3d 74, 87 (Tex.2003). Many courts of appeals continue to apply the theory, including in cases decided after the supreme court issued its opinion in Southern Union. See Formosa Plastics Corp., USA v. Kajima Int’l, Inc., 216 S.W.3d 436, 460 (Tex.App.-Corpus Christi 2006, pet. filed) (applying Single Business Enterprise theory after Southern Union); Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 150 S.W.3d 718, 744 (Tex.App.-Austin 2004, pet. granted) (same); In re U-Haul Int’l, Inc., 87 S.W.3d 653, 657 (Tex.App.-San Antonio 2002, orig. proceeding) (applying theory pre-Southern Union); Hall v. Timmons, 987 S.W.2d 248, 255 (Tex.App.-Beaumont 1999, no pet.) (same); Old Republic, 920 S.W.2d at 395-96 (same); see also Hoffmann, 180 S.W.3d at 348 (recognizing theory’s validity after Southern Union, but concluding that facts of case did not fit theory); Carlson Mfg., Inc. v. Smith, 179 S.W.3d 688, 693-94 (Tex.App.-Beaumont 2005, no pet.) (same). The Tex-arkana court of appeals, however, has emphasized that in cases founded in contract, article 2.21 controls all veil-piercing claims, and thus the “actual fraud” requirements of that statute apply. See Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 137-38 (Tex.App.-Texarkana 2000, no pet.). Factors commonly considered in determining whether corporations operate as a single business enterprise include, but are not limited to, the following: (1) common employees, (2) common offices, (3) centralized accounting, (4) payment of wages by one corporation to another corporation’s employees, (5) common business name, (6) services rendered by the employees of one corporation on behalf of another corporation, (7) undocumented transfers of funds between corporations, and (8) unclear allocation of profits and losses between corporations. See Nat’l Plan Adm’rs, 150 S.W.3d at 745. However, the supreme court in Southern Union stated that findings of common directors, shared employees, and central • accounting and payroll systems “do not justify disregarding the corporate structures of affiliated companies.” 129 S.W.3d at 89. In the present case, in question nine, the jury was asked: On the occasion in question, were any two or more of the following entities acting together as a single-business enterprise: Monte B. Schauer, Vintage Homes, Inc., M.B. Schauer Homes, Inc., B & A Realty, the Schauer Family Trust, and Country Village Homes, Inc.? Two or more corporations, entities or individuals are operating as a single business enterprise if they are not operated as separate entities, but rather integrate their resources to achieve a common business purpose. The trial court then listed the factors as enumerated in National Plan Administrators. See 150 S.W.3d at 745. The jury answered yes as to each of the appellants. Country Village did not object to the form or content of this question. B. Alter Ego Generally, a corporation exists as a separate legal entity, insulating its shareholders from personal liability. Hoffmann, 180 S.W.3d at 347. The Alter Ego theory applies when there is such a unity between corporation and individual that the corporation has ceased to be a separate entity, and allowing the individual to avoid liability through the use of the corporate form would work an injustice. See id. (citing Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990)). Evidence relevant to prove an Alter Ego theory includes: (1) payment of alleged corporate debts with personal checks or other commingling of funds, (2) representations that the individual will financially back the corporation, (3) diversion of company profits for the individual’s personal use, (4) inadequate capitalization, and (5) other failures to keep corporate and personal assets separate. Id. (citing, inter alia, Mancorp, 802 S.W.2d at 229.) Failure to comply with corporate formalities is no longer a factor in considering whether Alter Ego exists. Id.; see also Tex. Bus. CoRP. Act Ann. art. 2.21 § A(3) (Vernon 2003). A showing that an individual is an officer, director, or majority shareholder is insufficient to support a finding of Alter Ego. Hoffmann, 180 S.W.3d at 347. In question ten, the jury was asked: Is Monte B. Schauer responsible for the conduct of Country Village Homes, Inc.? Monte B. Schauer is “responsible” for the conduct of Country Village Homes, Inc., if: Country Village Homes, Inc., was organized and operated as a mere tool or business conduit of Monte B. Schauer, there was such unity between Country Village Homes, Inc., and Monte B. Schauer that the separateness of Country Village Homes, Inc., had ceased and holding only Country Village Homes, Inc., responsible would result in injustice; and Monte B. Schauer caused Country Village Homes, Inc., to be used for the purpose of perpetuating and did perpetuate an actual fraud on Robert and Sherry Patterson primarily for the direct personal benefit of Monte B. Schauer. In deciding whether there was such unity between Country Village Homes, Inc., and Monte B. Schauer that the separateness of Country Village Homes, Inc., had ceased, you are to consider the total dealings of Country Village Homes, Inc., and Monte B. Schauer, including: 1. the degree to which Country Village Homes, Inc.’s property had been kept separate from that of Monte B. Schauer; 2. the amount of financial interest, ownership, and control Monte B. Schauer maintained over Country Village Homes, Inc.; and 3. whether Country Village Homes, Inc., had been used for personal purposes of Monte B. Schauer. “Actual fraud” means actions involving dishonesty of purpose or intent to deceive. Country Village did not object to the form or content of this question. The jury answered yes. C. The Business Corporation Act and Southern Union Country Village asserts that article 2.21 of the Business Corporation Act is the exclusive manner for piercing the corporate veil. The article states, in relevant part: A. A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate thereof or of the corporation, shall be under no obligation to the corporation or to its obligees with respect to: (2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, owner, subscriber, or affiliate is or was the alter ego of the corporation, or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, or other similar theory, unless the obligee demonstrates that the holder, owner, subscriber, or affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, owner, subscriber, or affiliate; B. The liability of a holder, owner, or subscriber of shares of a corporation or any affiliate thereof or of the corporation for an obligation that is limited by Section A of this article is exclusive and preempts any other liability imposed on a holder, owner, or subscriber of shares of a corporation or any affiliate thereof or of the corporation for that obligation under common law or otherwise, except that nothing contained in this article shall limit the obligation of a holder, owner, subscriber, or affiliate to an obli-gee of the corporation when: (2) the holder, owner, subscriber, or affiliate is otherwise liable to the obli-gee for the obligation under this Act or another applicable statute. Tex Bus. CoRP. Act Ann. art. 2.21 (emphasis added). In Southern Union, the supreme court held that an assertion of the common law Single Business Enterprise theory failed when there was insufficient evidence of “actual fraud” as required by article 2.21 and the jury charge. 129 S.W.3d at 88. The City of Edinburg had entered into a contract embodied in city ordinances with a natural gas supplier. Id. at 75-76. The supplier agreed to pay a 4% franchise tax. Id. at 76. The issue before the supreme court was whether several companies affiliated with the supplier were subject to the tax based on a Single Business Enterprise theory. Id. The supreme court held that the affiliated companies were not subject to the tax. Id. In reviewing the jury’s affirmative finding on a Single Business Enterprise question, the court noted that it had never considered the theory “in any detail.” Id. at 86. The court declined to “decide ... whether a theory of ‘single business enterprise’ is a necessary addition to Texas law regarding the theory of alter ego for disregarding corporate structure and the theories of joint venture, joint enterprise, or partnership for imposing joint and several liability.” Id. at 87. The supreme court held that whatever label is applied to a veil-piercing theory, article 2.21 of the Texas Business Corporation Act controls. Id. The court concluded that the City’s attempt to treat the supplier and the affiliated companies as a single business enterprise failed because no evidence supported a finding of “actual fraud.” Id. at 88; see also Tex. Bus. CoRp. Act Ann. art. 2.21 (Vernon 2002). Specifically, the supreme court held that there was no evidence of “conduct involving dishonesty of purpose or intent to deceive” as required by the jury charge’s definition of “actual fraud.” S. Union, 129 S.W.3d at 88. Because the .supreme court has held that article 2.21 controls veil-piercing claims, we conclude that a finding of actual fraud is required in order to prove a theory of Single Business Enterprise. See Tex. Bus. CoRp. Act Ann. art. 2.21 cmt.1996; S. Union, 129 S.W.3d at 87. D. Omissions from the Charge Question nine of the jury charge, concerning single business enterprise, did not mention fraud at all, and question ten, regarding alter ego, defined actual fraud as “actions involving dishonesty of purpose or intent to deceive.” We must determine, therefore, the consequences of the failure by Country Village to object to the jury charge or to make the trial court aware of its contentions that article 2.21 controls theories by which the corporate veil may be pierced, that Single Business Enterprise is not a valid theory under Texas law, and that if it is recognized as a theory then it requires a finding of actual fraud. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992). The Pattersons assert that their Single Business Enterprise theory was not challenged by any trial objection, charge objection, or motion. They further state that no question or instruction was submitted by Country Village with respect to “actual fraud,” and if it is in fact a missing element of the Pattersons’ Single Business Enterprise theory, then it should be deemed found by the trial court. See Tex.R. Civ. P. 279. Nothing in the record indicates that Country Village ever made the trial court aware of its contentions relating to article 2.21 and actual fraud. Country Village asserts that it was not required to object because objection is not required to preserve error on an omitted independent ground of recovery, and its theory on appeal is that the Pattersons were required, but failed, to submit common law fraud as a separate and independent ground of recovery in order to pierce the corporate veil. In a charge conference on the record, Country Village’s trial counsel objected to questions six through ten, asserting that there was no evidence or insufficient evidence to support the submission of the issues and that any answer of yes would be against the great weight and preponderance of the evidence. The trial court overruled these objections. The clerk’s record contains a Trial Preparation Order submitted by Country Village, which includes proposed jury questions that do not address any of the Pattersons’ veil-piercing theories. Country Village’s motion for new trial and for judgment notwithstanding the verdict challenge only the legal and factual sufficiency of the evidence to support the jury’s findings. Country Village never presented the trial court with its contentions regarding article 2.21 and actual fraud. Thus, Country Village did not preserve any error in the jury charge for our review. See Tex.R.App. P. 33.1(a); Tex.R. Civ. P. 272, 274; Payne, 838 S.W.2d at 241. Generally, when a complaining party has not alerted the trial court of an alleged defect by objecting to the court’s charge, it is the charge, and not some other, unidentified law, against which we measure sufficiency of the evidence. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). When a party fails to bring controlling law to the attention of the trial court, as Country Village failed to do here with its arguments regarding article 2.21, that party waives on appeal any argument regarding that other law. See Equistar Chem., L.P. v. Dresser-Rand Co., No. 04-0121, — S.W.3d -, -, 2007 WL 1299161 at *3 (Tex. May 4, 2007) (argument that charge submitted improper measure of damages was waived by failure to present to trial court); Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.1993) (failure to object to jury questions based on state law waived assertion on appeal that federal maritime law controlled). Furthermore, a broad objection to sufficiency of the evidence, as Country Village asserted below in its motions for judgment notwithstanding the verdict and for a new trial, is generally insufficient to “clearly and distinctly make the trial court aware of a contention” even if that contention is “necessarily encompassed” in the evidentiary objections. See Equistar Chem., — S.W.3d at -, 2007 WL 1299161, at *4. However, where the claimed error in the charge is the omission of an element of a theory of recovery, rule 279 of the Rules of Civil Procedure “prescribes the consequences for failing to object to that omission.” In re J.F.C., 96 S.W.3d 256, 262 (Tex.2002) (applying rule 279 to omission of “best interests of the child” from charge in termination of parental rights case); see also Tex.R. Civ. P. 279. If an entire independent ground of recovery is omitted, that ground of recovery is waived. See Tex.R. Civ. P. 279; Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990). If a submitted ground of recovery-consists of more than one element, and at least one element is submitted to and found by the jury, the parties are considered to have agreed to waive a jury trial on the elements that were not submitted, and to have submitted those issues to the trial court for resolution. In re J.F.C., 96 S.W.3d at 262-63; First State Bank, Morton v. Chesshir, 634 S.W.2d 742, 747 (Tex.App.-Amarillo 1982, writ ref'd n.r.e.). If the trial court does not make written findings on the omitted elements, the court of appeals will deem the omitted elements found in support of the judgment. In re J.F.C., 96 S.W.3d at 262-63; Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex.2002). Even though we have held above that Country Village’s assertions of charge error were not preserved, we still must address Country Village’s assertion that actual fraud is not an omitted element of the Patterson’s veil-piercing theories, but instead is a required independent ground of recovery. If actual fraud was an omitted element, then because some essential elements of the Pattersons’ theories were presented to the jury without an objection pointing out the omission of actual fraud from question nine, we would deem that omitted element found in support of the judgment so long as there is sufficient evidence to support such a finding. See Tex.R. Civ. P. 279; Ramos, 784 S.W.2d at 668; Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Country Village contends, however, that article 2.21 requires submission of common law fraud as an independent ground of recovery, and that such an independent ground is waived because no element thereof was submitted to the jury. See Tex.R. Civ. P. 279. If this contention is correct, then both of the Pattersons’ veil-piercing theories would fail as a matter of law, because no evidence would support either the jury’s finding of fraud under question ten or a deemed finding of fraud under question nine when the Pattersons had not obtained a separate jury finding on common law fraud. In its briefs to this Court, Country Village cites to a number of cases in which a separate question on fraud was presented to the jury, but none of those cases holds that a separate question on fraud was required to be presented to the jury. For example, in a supplemental letter brief to this court, Country Village quotes Southern Union as stating that “[f]irst, the City used the single business enterprise finding to underpin its breach of contract claim. There was no tort claim to which the single business enterprise finding could have applied other than the fraud in the inducement claim[.]” S. Union, 129 S.W.3d at 88. This quotation, taken in context, does not relate to the necessity of a separate question on fraud; instead, the supreme court was correcting the court of appeals’ statement that “[t]o prove that there has been a sham to perpetuate a fraud, tort claimants must only show constructive fraud.” Id. (quoting Rio Grande Valley Gas Co. v. City of Edinburg, 59 S.W.3d 199, 209 (Tex.App.-Corpus Christi 2000)) (emphasis added by supreme court). The supreme court was stating that a finding of actual fraud under article 2.21 was necessary because the City of Edinburg’s claim sounded in contract, and veil-piercing in contract actions is governed by article 2.21. See S. Union, 129 S.W.3d at 88. The supreme court did not hold and has not held that a separate question and finding on common law fraud is a necessary underpinning of a veil-piercing action. Finally, before we evaluate the sufficiency of the evidence to support the verdict and judgment, we must determine whether we are required only to measure the evidence against the charge as given, see Osterberg, 12 S.W.3d at 55, or whether we must review the sufficiency of the evidence to support a deemed trial court finding of actual fraud. See Tex.R. Civ. P. 279; In re J.F.C., 96 S.W.3d at 262-63. Generally, if a party fails to bring controlling law to the attention of the trial court, that party waives for the purposes of appeal any argument that other law should govern the charge. Equistar Chem., — S.W.3d at -, 2007 WL 1299161, at *3; Gen. Chem. Corp., 852 S.W.2d at 920. More specifically, the Austin Court of Appeals has held that when an article 2.21 complaint is not asserted before the trial court, rule 274 and Osterberg require that the sufficiency of the evidence be measured against the trial court charge that was submitted to the jury. See Nat’l Plan Adm’rs, 150 S.W.3d at 745; see also Equistar Chem., — S.W.3d at-, 2007 WL 1299161, at *3 (quoting Tex.R. Civ. P. 274) (“Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.”). Accordingly, because Country Village presented the trial court only with challenges to the legal and factual sufficiency of the evidence to support the Pattersons’ Single Business Enterprise and Alter Ego theories, and not with a challenge that article 2.21 controls the proper submission of those theories, we will review the record only for legally and factually sufficient evidence in support of the jury’s finding on the law as presented in the charge. See Tex.R. Civ. P. 274; Equistar Chem., - S.W.3d at -, 2007 WL 1299161, at *4; Osterberg v. Peca, 12 S.W.3d at 55. E. Sufficiency of the Evidence Because Country Village failed to preserve its legal contentions for our review, our consideration of its first issue on appeal is limited to the legal and factual sufficiency of the evidence to support the jury’s answers to questions nine and ten as presented in the charge. 1. Country Village’s Contentions Country Village asserts that there was no evidence or insufficient evidence of dishonesty or intent to deceive as required by the definition of “actual fraud” that was submitted to the jury. Country Village states that there is nothing dishonest or deceitful about a corporate defendant ceasing operations during the pendency of a lawsuit, as Country Village Homes, Inc., did here. It further asserts that there is nothing fraudulent about having a negative net worth, nor does a negative net worth render a corporate defendant judgment-proof as the Pattersons’ expert testified. Country Village also contends that all of the evidence of fraud emphasized by the Pattersons is of events that took place after the events giving rise to the present cause of action, such as the payment of the consulting fee and the shutting down of Country Village Homes, Inc. in favor of Vintage Custom Homes. Finally, Country Village contends that to prove actual fraud, the Pattersons were required to show that the fraud was perpetrated for the direct personal benefit of Schauer. Country Village argues that even though Schauer was the sole stockholder of Country Village Homes, Inc., a judgment against Country Village Homes, Inc., would affect Schauer only indirectly. 2. The Pattersons’ Response The Pattersons respond that Schauer’s shifting of assets between his various corporations to shield those assets from litigation tends to show dishonesty and deceit on the part of Schauer and the entities he controls. They point to Robert’s testimony that Schauer had a pattern of seeking excessive overages, and that Schauer had been sued for similar behavior. The Pat-tersons also point to the testimony of Schauer’s employee, who said that Schauer had a history of charging expenses from one house to another house, and paying personal expenses from corporate accounts. Finally, the Pattersons summarize the testimony of them expert to support the jury’s answers to questions nine and ten. 3. Single Business Enterprise as Presented in the Jury Charge Having reviewed the entire record, we conclude that there is some evidence in support of the jury’s finding that the Pattersons proved their Single Business Enterprise theory and that the evidence is not so weak as to render the verdict clearly wrong or manifestly unjust. See id. Regarding question nine, Kenneth Miller, the Pattersons’ expert, and Schauer himself each gave a point-by-point analysis of the business practices of the corporate appellants. Schauer admitted, and Miller agreed, that the companies shared common employees, offices, and an accounting firm, that one corporation paid another corporation’s employees, and that employees of one corporation rendered services on behalf of another corporation. Furthermore, Betty Morgan testified that she was a common employee for Country Village and Vintage Custom Homes, both Schauer corporations, that she worked out of a common office, and that she did work for Vintage while being paid by Country Village. Schauer and his accountant disagreed with Miller regarding undocumented transfers of funds or unclear allocations of profits and losses. Schauer and the accountant maintained that the transfers of funds were documented by cancelled checks, and that the allocations of profits and losses were clear from the companies’ separate accounting ledgers. Miller contended that cheeks were insufficient documentation for the transfers between corporations. Specifically, he identified interest-free loans not evidenced by a borrowing agreement, but only by a check with “loan” in the memorandum field. He also stated that transfers for “consulting fees” were unclear allocations of profits and losses. Further relating to the final two factors, Morgan testified that she transferred funds from a project of one corporation to a project of another corporation. We conclude that this evidence supports the jury’s finding in its answer to question nine that Country Village and its sibling corporations were “not operated as separate entities, but rather integrate[d] their resources to achieve a common business purpose.” See generally Nat'l Plan Adm’rs., 150 S.W.3d at 746-47. We also conclude that, viewed neutrally, the evidence is not so weak as to render the verdict clearly wrong or manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We hold that the Pattersons’ evidence is both legally and factually sufficient to prove its Single Business Enterprise theory as the theory was presented in the jury charge. 4. Actual Fraud as Presented to the Jury Our review of the evidence is limited to the jury’s consideration of actual fraud as it was presented in jury question ten on Alter Ego: that “Sehauer caused Country Village Homes, Inc., to be used for the purpose of perpetrating and did perpetrate an actual fraud.... ‘Actual fraud’ means actions involving dishonesty of purpose or intent to deceive.” See Tex. Bus. CoRP. Act Ann. art. 2.21 § A(2) and cmt.1996. The Pattersons presented evidence that Sehauer caused Country Village to be used for actions involving dishonesty of purpose or intent to deceive. Specifically, Sehauer, acting for his company, deceived the Pattersons about the amount that they would be charged for extras. The record shows that the Pattersons sought updates from Sehauer and Country Village on the status of the extras. Evidence also shows that at the time Sehauer received a $15,000 check from the Patter-sons in November 1999, he told them that in addition to that check they would owe no more than an additional $15,000 for extras. Evidence further establishes that when Sehauer made that representation, Country Village was already in possession of invoices that it would use to assert a claim for more than $15,000 from the Pat-tersons for extras. Generally, a prediction of the future will not be held to be fraudulent. Bryant v. Transcont’l Gas Pipe Line Co., 821 S.W.2d 187, 190 (Tex.App.-Houston [14th Dist.] 1991, writ denied). However, a statement about the future that was made with present knowledge that the statement must be false can support a finding of fraud. See Dowling v. NADW Mktg., Inc., 681 S.W.2d 726, 728 (Tex.1982) (advertisement for “buy back agreement” where defendant had no present intent to perform under buy-back agreement supported cause of action for fraud); Stanfield v. O’Boyle, 462 S.W.2d 270, 270, 272 (Tex.1971) (promise to convey real estate combined with evidence of intent not to perform sufficient to support cause of action for fraud); Texaco, Inc. v. Phan, 137 S.W.3d 768, 769 n. 3 (Tex.App.-Houston [1st Dist.] 2004, no pet.). The Pattersons presented evidence that Sehauer, as a representative of Country Village, made a representation about the future, and that he had present knowledge that the statement must be false. In addition, the Pattersons’ evidence of Sehauer and Country Village attempting to collect a variety of unsupported charges for extras is evidence that supports the jury’s determination that Sehauer acted with dishonesty of purpose or intent to deceive. Because Country Village’s charges for extras varied by more than $50,000, and because Sehauer refused until the eve of trial to provide the Pattersons with any foundation for these charges, it can be reasonably inferred that the earlier, higher charges were deceptive. Furthermore, having reviewed the entire record, we conclude that evidence is sufficient to establish that Sehauer acted with the mental state required by the jury charge: dishonesty of purpose or intent to deceive. While a party’s intent is determined at the time the party made an alleged misrepresentation, intent may be inferred from the party’s actions after the statement is made. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986); W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 48 (Tex.App.-Houston [14th Dist.] 2006, no pet.); Frost Nat’l Bank v. Heafner, 12 S.W.3d 104, 112 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). Because intent to defraud is not normally susceptible to direct proof, it usually must be proven by circumstantial evidence. Spoljaric, 708 S.W.2d at 435; Heafner, 12 S.W.3d at 112. “Slight circumstantial evidence” of fraud, when considered with the breach of a promise to perform, is sufficient to support a finding of intent to defraud. Spoljaric, 708 S.W.2d at 435; Heafner, 12 S.W.3d at 112. Here, an inference of fraudulent intent is supported by the Patterson’s evidence of various manipulations of the corporate assets of Schauer’s enterprises, of his refusal to provide the Pattersons with documentation to support his claimed charges for extras, and of Robert’s testimony that Schauer made a practice of seeking payment for extras far above that which would be justified. Though all occurring after the alleged misrepresentations, this evidence supports an inference that Schauer had the requisite dishonesty of purpose or fraudulent intent at the time the Patter-sons contracted with his corporation, Country Village Homes, Inc. Assuming, without deciding, that Country Village is correct that no single piece of the Patter-sons’ evidence alone supports a finding of actual fraud, we conclude that, taken together, the Pattersons have presented some evidence of actions involving dishonesty of purpose or intent to deceive, and that the evidence is not so weak as to render the jury’s verdict clearly wrong or manifestly unjust. See Cain, 709 S.W.2d at 176. We hold that the evidence is legally and factually sufficient to support the jury’s finding of actual fraud as presented in jury question ten. 5. Personal Benefit Under question ten, the actual fraud also must have been perpetrated for Schauer’s direct personal benefit. Having reviewed the entire record, we conclude that legally and factually sufficient evidence establishes that Country Village Homes was used to perpetrate an actual fraud for the personal benefit of Schauer. Schauer, Morgan, and Schauer’s accountant all testified that Schauer would pay for personal items such as utility bills and car payments out of his companies’ accounts. Schauer was not merely benefitting as a shareholder, as Country Village contends. Instead, he was using Country Village’s corporate assets as his own and treating the company as his alter ego, and therefore a fraud for the benefit of Country Village would likewise benefit Schauer. F. Conclusion We conclude that there is more than a scintilla of evidence to support the jury’s finding in favor of the Pattersons on their theories of Single Business Enterprise and Alter Ego. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We further conclude that the evidence in support of the jury’s findings is not so weak as to render the verdict clearly wrong or manifestly unjust. See Cain, 709 S.W.2d at 176. We therefore hold that the evidence is legally and factually sufficient to support the trial court’s assignment of joint and several liability against Schauer, B & A Realty, Inc., M.B. Schauer Homes, Inc., and the Schauer Family Trust. We overrule Country Village’s first issue. Settlement Offer In its second issue, Country Village contends that it made a reasonable settlement offer in accordance with the Residential Construction Liability Act (the Act). See Act of May 24, 1999, 76th Leg., R.S., ch. 189, 1999 Tex. Sess. Law Serv. 663 (current version at Tex. Prop.Code Ann. §§ 27.001-003, 27.004, 27.0042, 27.002 (Vernon Supp.2006) and §§ 27.0031, 27.0041, 27.005-.006 (Vernon 2000)). It states that by complying with the statute, it is entitled to certain limitations on liability. The Act in force at the time this action accrued stated, in relevant part: 27.002. Application of Chapter (a) this chapter applies to: (1) any action to recover damages resulting from a construction defect, except a claim for personal injury, survival, or wrongful death or for damage to goods[.] (b) To the extent of conflict between this chapter and any other law, including the Deceptive Trade Practices-Consumer Protection Act ... this chapter prevails. 27.004. Notice and Offer of Settlement (b) Within the 45-day period after the date the contractor receives the notice, the contractor may make a written offer of settlement to the claimant.... The offer may include either an agreement by the contractor to repair or to have repaired by an independent contractor at the contractor’s expense any construction defect described in the notice and shall describe in reasonable detail the kind of repairs which will be made. (f) If a claimant unreasonably rejects an offer made as provided by this section or does not permit the contractor or independent contractor a reasonable opportunity to repair the defect pursuant to an accepted offer of settlement, the claimant: (1) may not recover an amount in excess of: (A) the reasonable cost of the offered repairs which are necessary to cure the construction defect and which are the responsibility of the contractor; or (B) the amount of a reasonable monetary settlement offer made under Subsection (n); and (2) may recover only the amount of reasonable and necessary attorney’s fees and costs incurred before the offer was rejected or considered rejected. (g) If a contractor fails to make a reasonable offer under this section, or fails to make a reasonable attempt to complete the repairs specified in an accepted offer made under this section, or fails to complete, in a good and workmanlike manner, the repairs specified in an accepted offer made under this section, the limitations on damages and defenses to liability provided for in this section shall not apply. (h) Except as provided by Subsection (f), in a suit subject to this chapter the claimant may recover only the following damages proximately caused by a construction defect: (1) the reasonable cost of repairs necessary to cure any construction defect, including any reasonable and necessary engineering or consulting fees required to evaluate and cure the construction defect, that the contractor is responsible for repairing under this chapter; (2) the reasonable expenses of temporary housing reasonably necessary during the repair period; (8) the reduction in market value, if any, to the extent the reduction is due to structural failure; and (4) reasonable and necessary attorney’s fees. (j) An offer of settlement made under this section that is not accepted before the 25th day after the date the offer is received by the claimant is considered rejected. (k) ... The trier of fact shall determine the reasonableness of an offer of settlement made under this section. 27.006. Causation In an action to recover damages resulting from a construction defect, the claimant must prove that the damages were proximately caused by the construction defect. Act of May 24, 1999, 76th Leg., R.S., ch. 189, 1999 Tex. Sess. Law Serv. Ch. 668 (amended 2003). Country Village contends that the evidence was legally and factually insufficient to support th