Full opinion text
OPINION Opinion by Chief Justice CORNELIUS. Lynwood and Harriet Lesikar appeal from an adverse judgment in Jenny Rap-peport’s suit against them to impose a constructive trust and recover damages for fraud and breach of fiduciary relationship. In 1935, H.G. Lewis bought the working interest in the T.W. Lee oil lease located in Longview, Texas, and assigned half of the interest to J.C. Robbins. Lewis operated the entire lease under the name L & G Oil Company until his death in 1980. In 1964, Lewis and Robbins each assigned to the Clark, Thomas, Winters & Shapiro law firm of Austin, Texas (Clark, Thomas), a ¾2 working interest in oil wells 2 and 5 on the lease, or collectively a ⅝ interest. In the early 1970s, Lewis drilled two new wells on the lease, wells 3A and 7A. Thereafter, although the 1964 assignment to Clark, Thomas explicitly covered only wells 2 and 5, Lewis paid Clark, Thomas for oil produced and billed the firm for operating expenses as though it owned a ½ working interest not only in wells 2 and 5, but also in wells 3A and 7A. In 1980, Lewis died leaving a will that named his two daughters, Jenny Rappe-port and Harriet Lesikar, co-independent executrices of his estate. In his will, Lewis gave Jenny and Harriet each an undivided fifty percent interest in his estate for life with remainders to their children. Among Lewis’s assets at his death was his one-half interest in the T.W. Lee lease, which the estate, through Jenny and Lewis’s widow, Fay Lewis, continued to operate under the name L & G Oil Company. In 1985, Clark, Thomas determined that it had no assignment to it of an interest in wells 3A and 7A and notified L & G Oil Company of that fact. An L & G employee wrote Clark, Thomas stating that she searched L & G’s files for an assignment concerning wells 3A and 7A, but found none. Nevertheless, L & G continued to bill Clark, Thomas for operating expenses associated with wells 3A and 7A, and continued to pay the firm as though it owned an interest in those wells. In 1992, Harriet and her husband Lyn-wood (Lyn) Lesikar sued Jenny, Fay, and others seeking a declaratory judgment as to each party’s ownership in the Lewis estate and an accounting. In 1993, the Lesikars added Clark, Thomas as a defendant, seeking to recover under a theory of unjust enrichment, the “overpayment” the estate had made on wells 3A and 7A. In response, a Clark, Thomas attorney, Barry Bishop, contacted the Lesikars’ attorney, Gary Werley. According to Bishop’s testimony, he and Werley agreed that Clark, Thomas would disclaim its interest in wells 2 and 5 if Werley would drop Clark, Thomas from the lawsuit and not seek to recover the overpayment. Bishop wrote a letter to Werley describing their understanding, referred to by the parties as the “Rule 11 agreement,” but Werley did not sign and return it at that time. The agreement stated only that Clark, Thomas would disclaim any interest it might have in wells 3A and 7A in exchange for the “plaintiffs,” Harriet and Lyn, not pursuing their overpayment claim against the firm. On April 14, 1994, the trial court ordered the Lewis estate closed. On July 13, 1994, Werley sent a letter to Bishop claiming Clark, Thomas owed the estate for the overpayment the estate had made on wells 3A and 7A. The next day, Werley sent Bishop a letter with a proposed assignment attached whereby Clark, Thomas would assign its interest in wells 2 and 5 to Harriet’s husband Lyn alone; the letter stated that Lyn would be calling Bishop concerning a “settlement offer.” On July 18, Bishop notified Jenny’s attorney, Jerry Harris, about the proposed assignment, who agreed that the estate would be willing to completely settle the overpayment claim in exchange for Clark, Thomas’s interest in wells 2 and 5. Despite Jenny’s interest, Bishop later agreed with Werley that because the court had ordered the estate closed, the estate would be unable to settle the overpayment claim in exchange for Clark, Thomas’s interest in wells 2 and 5 because that would subject the estate to ongoing liability for any third-party claims against the Clark, Thomas interest. They agreed that Lyn’s settling the litigation in exchange for Clark, Thomas’s interest in wells 2 and 5 would be acceptable. In preparation for trial, Harris, on July 19, 1994, deposed the Lesikars. Lyn stated at his deposition that he had spoken to Clark, Thomas about acquiring the firm’s interest in wells 2 and 5. After the deposition, Harris wrote Werley and Bishop advising them not to enter into an agreement unless Jenny was made a party to it. On August 3, Bishop amended the assignment to add provisions that, among other provisions, Lyn would indemnify Clark, Thomas not only for the overpayment but for all claims connected with wells 2 and 5, and also with wells 3A and 7A, and he sent a copy of the assignment to Werley. That same day, Werley agreed to the assignment and returned it to Bishop. A few days later, Werley signed and returned to Bishop the Rule 11 agreement that Bishop still required, and pursuant to that agreement, Werley dropped Clark, Thomas from the lawsuit. On August 9, Clark, Thomas signed the assignment and returned it to Lyn. On August 14, the trial to close the Lewis estate began, and the overpayment claim against Clark, Thomas was severed into its own suit. On August 17, 1994, Lyn recorded the assignment from Clark, Thomas. Later that same day, the parties met to negotiate a settlement of the litigation. At the meeting, Lyn indicated he did not wish to discuss the Clark, Thomas negotiations, and Harriet stated she did not know anything about the assignment. The discussions resulted in a settlement of the litigation concerning the Lewis estate. On October 17, at Harriet’s request, the overpayment claim against Clark, Thomas was dismissed without prejudice. A final judgment was signed on October 18. Attached to it was a mutual release in which each party released the other from liability; however, the release contained a clause which provided that neither party was released from liability concerning the overpayment. In early October 1994, Jenny learned that Lyn had gotten permission from the Railroad Commission to replace L & G as operator of the lease. On October 31, Jenny, individually and on behalf of L & G Oil Company and as “co-trustee of the testamentary trust pursuant to Lewis’s will” and several working interest owners, brought suit against the Lesikars for the overpayment and for an injunction, alleging that the Lesikars had taken and converted to their own use income from estate property. On November 18, Jenny brought suit in the same capacity against the Lesikars for breach of fiduciary duty and fraud. The court granted a temporary restraining order that allowed Jenny to re-enter the lease and operate it as L & G. The suits were joined, and together they form the suit from which the Lesikars bring this appeal. The trial court submitted special questions to the jury on all theories of recovery and defense. We omit the 'instructions and definitions. The jury answered as follows: QUESTION NO. 1 Did Harriet Lewis Lesikar breach her fiduciary duty to Jenny Lou Lewis Rap-peport in any of the following respects: QUESTION [NO.] 2 Did Lynwood Lesikar commit fraud against Jenny Lou Lewis Rappeport? Answer “Yes” or “No” ANSWER: Yes QUESTION [NO.] 3 Did Harriet Lesikar commit fraud against Jenny Lou Lewis Rappeport? Answer “Yes” or “No” ANSWER: Yes QUESTION [NO.] 4 Do you find that any of the following parties were part of a conspiracy that damaged Jenny Lou Lewis Rappeport? QUESTION NO. 5 Did Lynwood Lesikar acquire the Operations of the T.W. Lee Lease by deception? Answer “Yes” or “No.” ANSWER: Yes [QUESTION NO.] 6 Do you find that the Clark, Thomas law firm did not own an interest in Wells 3A and 7A on the T.W. Lee Lease? Answer “Did Not Own” or “Did Own” ANSWER: Did Not Own QUESTION NO. 7 Do you find that Jenny Rapppeport [sic] is estopped from asserting the overpayment claim against Clark[,] Thomas, if any, out of Wells 3A and Wells 7A in the T.W. Lee Lease? Answer “Yes” or “No” ANSWER: No QUESTION NO. 8 Do you find that the Clark, Thomas law firm and it’s [sic] successor in interest, if any, was overpaid on the production of the T.W. Lee Lease? Answer “Yes” or “No” ANSWER: Yes If you have answered Question No. 8 “Yes” then answer Question No. 9, otherwise do not answer Question No. 9. QUESTION NO. 9 Do you find that the overpayment was the result of a mutual mistake? Answer Wes” or “No” ANSWER: Yes If you have answered Question No. 8 Wes” then answer Question No. 10, otherwise do not answer Question No. 10. QUESTION NO. 10 What amount, if any, do you find the Clark[,] Thomas law firm or its successor Lynwood Lesikar was overpaid on the production of the T.W. Lee Lease a.) October 1989 to the present? $298,547 b.) For the calendar years 1980 through September 1989? $239,152 If you have answered Question No. 8 Wes” then answer Question No. 11, otherwise do not answer Question No. 11. QUESTION NO. 11 When did a representative of the Estate of H.G. Lewis Jr. know or should they have known of the existence of a potential overpayment claim? Answer by Month and Year ANSWER: June 1985 QUESTION [NO.] 12 Did Lynwood Lesikar intentionally interfere with the existing operating agreement between Jenny Lou Lewis Rappeport d/b/a L & G Oil Company and the working interest owners of the T.W. Lee Lease that was not justified? Answer “Did Interfere” or “Did Not Interfere” ANSWER: Did Interfere If you have answered Question No. 1, 2, 3, 4, or 5 Wes” then answer Question No. 13, otherwise do not answer Question No. 13. QUESTION NO. 13 Do you find that a Constructive Trust should be imposed on the Clark[,] Thomas interest in the T.W. Lee Lease transferred to Lynwood Lesikar? Answer Yes or No: ANSWER: Yes QUESTION [NO.] 14 What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Jenny Lou Lewis Rappe-port for her damages, if any, that resulted from such wrongful act you have found in Questions 1, 2, 3, 4, 5 or 12? Consider the following elements of damages, if any, and none other. Answer separately in dollars and cents, if any, for each of the following: 1. Costs incurred in correcting the wrongful conduct? ANSWER: $12,000.00 2. Loss to business reputation? ANSWER: $0 3. Loss of the value of the Clark[,] Thomas interest on August 9, 1994? ANSWER: $88,000.00 4. Failure to pay reasonable operational expenses on the T.W. Lee Lease? ANSWER: $26,122.00 5. Unpaid estate income tax return preparation expense for tax year 1994? ANSWER: $1,750.00 QUESTION [NO.] 15 What is a reasonable fee for the necessary services of Jenny Lou Lewis Rappeport’s attorney in this case, stated in dollars and cents? Answer in Dollars and Cents with an amount for each of the following: a. For preparation and trial. ANSWER: $253,444 b. For an appeal to the Court of Appeals. ANSWER: $30,000 c. For making or responding to a petition for review to the Supreme Court of Texas. ANSWER: $15,000 If you have found by clear and convincing evidence your answers to Question Nos. 1, 2, 4, 5 or 12 then answer Question No. 16, otherwise do not answer Question No. 16. QUESTION [NO.] 16 What sum of money, if any, should be assessed against Lynwood Lesikar and awarded to Jenny Lou Lewis Rappeport as exemplary damages for the conduct found in response to Question[s] 1, 2, 4, 5, or 12? Answer in dollars and cents, if any. ANSWER: $2 million If you have found by clear and convincing evidence your answers [to] Question Nos. 1, 3, or 4 then answer Question No. 17, otherwise do not answer Question No. 17. QUESTION [NO.] 17 What sum of money, if any, should be assessed against Harriet Lesikar and awarded to Jenny Lou Lewis Rappeport as exemplary damages for the conduct found in response to Question 1, 3, or 4? Answer in dollars and cents, if any. ANSWER: $500,000.00 QUESTION NO. 18 Do you find that Jenny Lou Rappe-port and L & G Oil Company ratified the assignment by Clark, Thomas, Winters & Shapiro to Lynwood Lesikar by sending invoices for expenses, and receiving payments on some of the invoices? Answer ‘Tes” or “No” ANSWER: No QUESTION NO. 19 Do you find that Jenny Lou Rappe-port and L & G Oil Company have waived the ability to contest the assignment to Lynwood Lesikar by Clark, Thomas, Winters & Shapiro by sending invoices for expenses, and receiving payments on some of the invoices? Answer ‘Tes” or “No” ANSWER: No QUESTION NO. 20 Do you find that Jenny Lou Rappe-port and/or L & G Oil Company committed waste in selling the oil from the T.W. Lee Lease for a price lower than that available, to the detriment of all working interest owners? Answer “Yes” or “No” ANSWER: No If you have answered Question No. 20 ‘Yes” then answer Question No. 21, otherwise do not answer Question No. 21. QUESTION NO. 21 What sum of money, if any, do you find to be the damages sustained by Lynwood Lesikar as a proximate cause of the conduct of Jenny Lou Rappeport? Answer in Dollars and Cents, if any. ANSWER: $0 QUESTION NO. 22 Do you find that Jenny Lou Rappe-port committed malicious prosecution of Lynwood Lesikar that proximately caused Lynwood Lesikar to suffer damages? Answer ‘Yes” or “No” ANSWER: No If you have answered Question No. 22 “Yes” then answer Question No. 23, otherwise do not answer Question No. 23. QUESTION NO. 23 What sum of money, if any, do you find would fairly and reasonably compensate Lynwood Lesikar for his damages and losses that were proximately caused by Jenny Lou Rappeport on the occasion in question, if any? Answer in Dollars and Cents ANSWER: $0 QUESTION NO. 24 What is a reasonable fee for the necessary services of Lynwood Lesikar’s attorney in this case in reference to the title dispute? Answer in Dollars and Cents with an amount for each of the following: ■ The court rendered judgment based on the jury’s answers. The Lesikars challenge the jury answers in Jenny’s favor regarding breach of fiduciary duty, fraud, ratification, waiver, and conspiracy on the basis that they are not supported by legally and/or factually sufficient evidence. They also challenge the actual damages awards, including the constructive trust and overpayment awards, as well as the punitive damages awards. BREACH OF FIDUCIARY DUTY AND FRAUD The jury found that Harriet breached her fiduciary duty to Jenny in many respects and that both Harriet and Lyn were guilty of fraud. The Lesikars contend that the assignment from Clark, Thomas to Lyn did not amount to a breach of fiduciary duty or fraud by Harriet, and they contend that the trial court erred in failing to disregard jury findings la, lb, lc, Id, 2, and 3 because there is no evidence or factually insufficient evidence to support them. They also contend that Harriet’s dismissing the suit against Clark, Thomas for the overpayment did not amount to a breach of fiduciary duty or fraud, and they contend that the trial court erred in failing to disregard the jury’s answers to questions lc, 2, and 3. They also contend that the transfer of the operations of the T.W. Lee oil lease to Lyn did not amount to breach of fiduciary duty or fraud, and they contend that the trial court erred in failing to disregard the jury’s answers to questions If, lg, lh, 2, and 3. The Lesikars attack all of the jury’s findings related to breach of fiduciary duty. In their first point, they attack the legal and factual sufficiency of findings la through Id. In their third point, they attack the legal sufficiency of findings If through lh. In a later point regarding actual damages, they attack the legal sufficiency of finding le. If any one of the findings of breach may be upheld, the jury’s finding that Harriet breached her fiduciary duty may be upheld. We will first address finding lc, which speaks to the heart of this case, the assignment and dismissal, or the settling of the estate’s overpayment claim. A challenge on appeal that the trial court failed to disregard a jury finding must be construed as a legal sufficiency challenge. See Brown v. Bank of Galveston, Nat’l Ass’n, 930 S.W.2d 140, 145 (Tex.App.-Houston [14th Dist.] 1996), aff'd, 963 S.W.2d 511 (Tex.1998). In reviewing a legal sufficiency or “no evidence” question, we consider all the evidence in the light most favorable to the jury finding, indulging every reasonable inference in favor of the finding. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994). If there is more than a scintilla of competent evidence to support the jury finding, we will affirm the finding. The evidence supporting the finding amounts to more than a scintilla if it supplies a reasonable basis for reasonable minds to reach differing conclusions as to the existence of the crucial fact. Transp. Ins. Co. v. Moriel, 879 S.W.2d at 25; Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992). When reviewing the factual sufficiency of the evidence to support the jury’s verdict, we examine all of the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986); Hollander v. Capon, 853 S.W.2d 723, 726 (TexApp.-Houston [1st Dist.] 1993, writ denied). After considering and weighing all of the evidence, we will set aside the verdict only if the evidence is so weak, or the finding is so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). When undertaking a factual sufficiency review, we may not merely substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Merckling v. Curtis, 911 S.W.2d 759 (Tex.App.-Houston [1st Dist.] 1995, writ denied); Hollander v. Capon, 853 S.W.2d at 726. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we may not act as a thirteenth juror in assessing the evidence and the credibility of the witnesses. Seelbach v. Clubb, 7 S.W.3d 749, 755 (Tex.App.-Texarkana 1999, pet. denied). It is undisputed that Harriet and Jenny were both co-executrices and beneficiaries of the Lewis estate. As both co-executrices and beneficiaries, each owed the other a fiduciary duty, and each was entitled to the other’s fulfilling her fiduciary obligations. An executrix of an estate is a fiduciary of the estate beneficiaries. As a fiduciary, she owes the beneficiaries a strict duty of good faith and candor, as well as the general duty of full disclosure respecting matters affecting the beneficiaries’ interests. Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984); Welder v. Green, 985 S.W.2d 170, 175 (Tex.App.-Corpus Christi 1998, pet. denied); Hawthorne v. Guenther, 917 S.W.2d 924, 934 (Tex.App.-Beaumont 1996, writ denied); Chien v. Chen, 759 S.W.2d 484, 495 (Tex.App.-Austin 1988, no writ). The existence of strained relations between the parties does not lessen the fiduciary’s duty of full and complete disclosure. Montgomery v. Kennedy, 669 S.W.2d at 313. The executrix of an estate is held to the same high fiduciary duties and standards in the administration of a decedent’s estate that are applicable to trustees. Humane Soc’y of Austin & Travis County v. Austin Nat’l Bank, 531 S.W.2d 574, 577 (Tex.1975); Evans v. First Nat’l Bank of Bellville, 946 S.W.2d 367, 379 (Tex.App.-Houston [14th Dist.] 1997, writ denied); Ertel v. O’Brien, 852 S.W.2d 17, 20 (Tex.App.-Waco 1993, writ denied). In discussing the fiduciary duties of trustees, the Texas Supreme Court has stated that the trustee’s duty of loyalty prohibits him from using the advantage of his position to gain any benefit for himself at the expense of his trust and from placing himself in any position where his self-interest will or may conflict with his obligations as trustee. Slay v. Burnett Trust, 143 Tex. 621,187 S.W.2d 377, 388 (1945). It is a well-settled rule that a trustee can make no profit out of his trust. The rule in such cases springs from his duty to protect the interests of the estate, and not to permit his personal interest to in any wise conflict with his duty in that respect. The intention is to provide against any possible selfish interest exercising an influence which can interfere with the faithful discharge of the duty which is owing in a fiduciary capacity. Slay v. Burnett Trust, 187 S.W.2d at 388; accord Humane Soc’y of Austin & Travis County v. Austin Nat’l Bank, 531 S.W.2d at 577. Generally, there is a presumption that property acquired during marriage is community property. Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226, 227 (1947). Because Lyn acquired Clark, Thomas’s interest in wells 2 and 5 as community property in exchange for the claim of overpayment, Harriet also acquired the interest in wells 2 and 5 in exchange for the claim of overpayment. The Lesikars argue that the interest Clark, Thomas assigned to Lyn was not estate property, and therefore Harriet, by obtaining it through the assignment to Lyn, did not breach her fiduciary duty by acquiring estate property in violation of the statute. We agree that Clark, Thomas’s interest in wells 2 and 5 was not property belonging to the estate. The estate, however, owned the claim of overpayment on wells 3A and 7A, a valuable right. Harriet did more than simply acquire the Clark, Thomas interest; through Lyn, she acquired it in exchange for indemnifying Clark, Thomas against this claim of overpayment. The Lesikars argue that Harriet did not breach her duty by doing so because Jenny, rather than looking to Clark, Thomas, could look to Lyn and Harriet, who merely “indemnified” Clark, Thomas, for reimbursement of the overpayment. If the overpayment claim was valid, Harriet indeed had a duty not to obtain for Lyn and herself the interest in wells 2 and 5 in exchange for indemnifying the overpayment claim. By doing so, she created a conflict of interest between herself and the estate, which alone the law considers a breach of fiduciary duty. As co-executrix of the estate, she was an estate-creditor; she was required to pursue the claim for overpayment on behalf of the estate. As Lyn’s wife, she stepped into Clark, Thomas’s shoes and became an estate-debtor; if the overpayment claim was valid, she was required to pay the estate for the overpayment. As an estate-debtor, Harriet had no incentive to aggressively pursue the claim for overpayment against herself which, as an estate-creditor, she was required to do. In fact, Lyn agreed to do more than indemnify Clark, Thomas; he agreed that he and Harriet would not pursue the overpayment claim, and Harriet ultimately dismissed the overpayment litigation. In addition, notwithstanding that Lyn bargained for Clark, Thomas’s interest by promising to abandon the overpayment claim, the Lesikars contend that “there is no evidence that an actual overpayment existed” and that Harriet dismissed the overpayment litigation in good faith. However, Clark, Thomas admitted and no one disputed that Clark, Thomas did not own an interest in wells 3A and 7A and yet received payment for those wells. The Lesikars’ true dispute regarding the validity of the overpayment is that the evidence was factually insufficient to prove the amount of the overpayment. In addition, all the parties acted as if the claim had value; otherwise, they would not have exchanged it or used it as a bargaining tool to acquire the interest in wells 2 and 5. Harriet, therefore, had a duty to pursue the claim on behalf of the estate and not to dismiss the litigation. Her good faith is irrelevant to her breach of duty. By acquiring the interest in wells 2 and 5 and then dismissing the overpayment litigation, Harriet not only created a conflict of interest between herself and the estate, but also she acquired property for her personal benefit while acting as a fiduciary. All transactions between a fiduciary and his principal are presumptively fraudulent and void; therefore, the burden lies on the fiduciary to establish the validity of any particular transaction in which he is involved. Chien v. Chen, 759 S.W.2d at 495. Where a fiduciary relationship exists, the burden is on the fiduciary to show that he acted fairly and informed the other party of all material facts relating to the challenged transaction. Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). The Lesi-kars’ attempts to overcome this presumption fail. As evidence of the fairness of the actions in question, the Lesikars contend that Harriet’s actions do not amount to breach of fiduciary duty or fraud because Harriet’s primary duty was to “wind up” the estate. In April of 1994, the trial court gave directives that the lingering estate be closed. According to the Lesi-kars, winding up required only that Harriet pay estate debts and distribute property. While it is true that the purpose of administering an estate is to satisfy the claims of the decedent’s creditors and to distribute the remainder of the estate among the decedent’s heirs, included within the executor’s many duties is the duty to collect all claims and debts due the estate and to recover possession of all property of the estate to which its owners have claim or title. See Tex. Prob.Code Ann. § 233(a) (Vernon Supp.2000). Administration therefore protects both the rights of the decedent’s heirs and the interests of the decedent’s creditors. Patterson v. Allen, 50 Tex. 23 (1878); So. Underwriters v. Lewis, 150 S.W.2d 162 (Tex.Civ.App.-Texarkana 1941, no writ). The whole scheme of probate law favors speedy administration, commensurate with the reasonable protection of all interests involved. Ryan’s v. Flint, 30 Tex. 382 (1867). We fail to see how a directive to close the estate entitled Harriet and Lyn to acquire the Clark, Thomas interest for themselves in settlement of the estate’s claim for overpayment. The Lesikars further contend that when Harriet dismissed the claim against Clark, Thomas on October 17,1994, the claim had already been distributed to estate beneficiaries who could make their own choices about prosecuting it. Their argument is that the estate had been closed in August of 1994 and therefore the claim was not a claim of the estate. The final settlement of the estate, however, was not filed until October 18, 1994, one day after Harriet dismissed the claim. In addition, in that settlement agreement, the parties executed a mutual release in which each party released the other from liability. But that document stated that each party was released from liability “with the exception of claims or obligations related to ... operation of the T.W. Lee Oil Lease subsequent to August 17, 1994, and the interest of the Clark, Thomas, Winters & Shapiro Law Firm in the T.W. Lee Oil Lease and debts and overpayments relating thereto.” So, that claim remained a claim of the estate. Regardless, it is a duty of a co-executor, not the beneficiaries, to prosecute claims owed to the estate. Tex. Pkob-Code Ann. § 233(a). The Lesikars further contend that the trial court erred in failing to disregard findings 2 and 3, in which the jury found that Harriet and Lyn committed fraud. They insist that the assignment and dismissal did not amount to fraud. The court instructed the jury that fraud occurs when: a. a party conceals or 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 concealing or failing to disclose the fact, and d. the other party suffers injury as a result of acting without knowledge of the undisclosed fact. The fraud findings were broad and were not based on any particular act. A challenge on appeal that the trial court failed to disregard a jury’s finding must be construed as a legal sufficiency challenge. See Brown v. Bank of Galveston, Natl, Ass’n, 930 S.W.2d at 145. Thus, looking only at the evidence that favors the jury’s findings and ignoring all evidence to the contrary, the question before us is whether there is more than a scintilla of competent evidence to support the jury finding that Harriet and Lyn committed fraud. Fraud requires a material misrepresentation that was false; was either known to be false when made or was asserted without knowledge of its truth; was intended to be acted on; was relied on; and that caused injury. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998). Silence is equivalent to a false representation where circumstances impose a duty to speak and one deliberately remains silent. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986). So, for there to be actionable nondisclosure fraud, there must be a duty to disclose. Bradford v. Vento, 997 S.W.2d 713, 725 (Tex.App.-Corpus Christi 1999, pet. granted); Hoggett v. Brown, 971 S.W.2d at 487-88. Whether such a duty exists is a question of law. Bradford v. Vento, 997 S.W.2d at 725. A duty to disclose may arise in four situations: (1) where there is a special or fiduciary relationship; (2) where one voluntarily discloses partial information, but fails to disclose the whole truth; (3) where one makes a representation and fails to disclose new information that makes the earlier representation misleading or untrue; and (4) where one makes a partial disclosure and conveys a false impression. Id.; Hoggett v. Brown, 971 S.W.2d at 487 (citing Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 941 S.W.2d at 146-47). Although Harriet notified Jenny and collaborated with her to some extent with regard to the initial settlement negotiations between the estate and Clark, Thomas about exchanging the interest in wells 2 and 5 for the overpayment claim, when those negotiations broke down Harriet did not notify Jenny that Lyn was acquiring the Clark, Thomas interest for himself until well after the fact. Considering only the evidence that favors the jury’s findings and ignoring all evidence to the contrary, we find some evidence to support the jury’s findings that Lyn and Harriet committed fraud on Jenny and the estate by failing to disclose their dealings in exchanging the overpayment for Clark, Thomas’s interest in wells 2 and 5. The Lesikars contend that the trial court erred in failing to disregard jury findings 1f, 1g, 1h, and 5, by which the jury found that Harriet breached her fiduciary duty to Jenny by, 1f transferring the operating interest in the T.W. Lee Lease to her husband without payment of any consideration; 1g transferring the operating interest in the T.W. Lee Lease to her husband without previously disclosing to all beneficiaries her intention to do so; 1h secreting the transfer of the operating interest in the T.W. Lee Lease to her husband until such time as the beneficiaries could not challenge such transfer with the Texas Railroad Commission. In question 5, the jury found that Lyn acquired the operations of the lease by deception. We have already determined there is legally sufficient evidence to support the findings of breach of fiduciary duty in findings la, lb, le, Id, and le; therefore, we will not address whether the evidence is legally sufficient to support findings If, lg, and lh. We also find sufficient evidence to support the jury’s answer to question 5. Ratification and WaiveR After learning of Clark, Thomas’s assignment of its interest in wells 2 and 5 to Lyn, Jenny began to bill Lyn for operating expenses associated with those wells. In questions 18 and 19, the jury failed to find that by this conduct Jenny ratified the assignment or waived her right to complain of the assignment. On appeal, the Lesikars challenge the legal and factual sufficiency to support the jury’s failure to find ratification or waiver. Ratification and waiver are affirmative defenses that the defendant must prove. The party with the burden of proof who challenges the legal sufficiency to support the jury’s failure to find must surmount two hurdles. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Seelbach v. Clubb, 7 S.W.3d at 755; Neese v. Dietz, 845 S.W.2d 311, 313 (Tex.App.-Houston [1st Dist.] 1992, writ denied). The party must show that no evidence supports the failure to find and that the evidence establishes the desired finding as a matter of law. Ramsey v. Lucky Stores, Inc., 853 S.W.2d 623 (Tex.App.-Houston [1st Dist.] 1993, writ denied). First, we review the evidence in the light most favorable to the jury finding, indulging every reasonable inference in favor of the finding. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d at 285-86. If there is more than a scintilla of competent evidence to support the jury finding, we will affirm the finding. Orozco v. Sander, 824 S.W.2d at 556. Evidence amounts to more than a scintilla if it supplies a reasonable basis for reasonable minds to reach differing conclusions as to the existence of the crucial fact. Id. If there is no evidence to support the finding, then an examination of the entire record must demonstrate that the contrary proposition is established as a matter of law. Seelbach v. Clubb, 7 S.W.3d at 755. If the proposition asserted by the appellant is established as a matter of law, the point of error will be sustained. Id. Great weight points are factual sufficiency challenges. Only one standard of review is used in reviewing factual sufficiency challenges, regardless of whether the court of appeals is reviewing a negative or affirmative jury finding or whether the complaining party had the burden of proof on the issue. M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.-Houston [1st Dist.] 1987, no writ). Therefore, we apply the appropriate standard of review, which we have set out above. Ratification is the adoption or confirmation by a person, with knowledge of all material facts, of a prior act that did not then legally bind that person and which that person had the right to repudiate. Facciolla v. Linbeck Constr. Corp., 968 S.W.2d 435, 440 (Tex.App.-Texarkana 1998, no pet.). Ratification may be either express or implied, but it must result from acts clearly evidencing an intention to ratify. Id. Waiver is the intentional relinquishment of a known right, or intentional conduct inconsistent with claiming that right. Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987). Thus, like ratification, waiver is largely a question of intent. Kennedy v. Bender, 104 Tex. 149, 135 S.W. 524, 525 (1911). There can be no waiver unless so intended by one party and so understood by the other. Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex.App.-Texarkana 1992, writ denied). Although in their brief to this Court the Lesikars argue that a great many of Jenny’s actions evidence ratification and waiver, the questions to the jury based ratification and waiver only on Jenny’s having sent invoices to Lyn and having accepted payments from him. The Lesikars do not argue that they submitted a different question to the jury, that the court refused their request, or that the question submitted was too specific or otherwise improper. Thus, the narrow issue before us is whether Jenny’s sending invoices to Lyn and accepting payments from him established either ratification or waiver as a matter of law, and whether the jury’s failure to find ratification or waiver on the basis of that conduct is against the great weight of the evidence. Ratification was not established as a matter of law merely from Jenny’s billing Lyn for lease expenses and receiving payments from him. Jenny’s actions in this regard could have reflected only that she knew Lyn had received a purported assignment of Clark, Thomas’s interest in wells 2 and 5. Certainly, the assignment was notice to her that Lyn claimed to own the interest, but even if Jenny’s acts were a recognition that Lyn had acquired title to the interest, her dealing with him on that basis did not, as a matter of law, ratify Lyn’s fraudulent acts in acquiring that interest. If Lyn had acquired the interest directly from Jenny, her acts in dealing with him as the owner would have constituted a ratification of his title. But since he acquired the title from a third party, Jenny could treat him as the owner, but still seek to recover damages from him because of his fraud in acquiring the interest, or seek to impose a constructive trust on the interest. See Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958); Vessels v. Anschutz, 823 S.W.2d at 764-65. We also find that the jury’s failure to find ratification is not against the great weight of the evidence. Similarly, the fact that Jenny billed Lyn for expenses and otherwise dealt with him as if he were the owner of the Clark, Thomas interest falls short of establishing as a matter of law that she intended thereby to waive Harriet’s breach of fiduciary duty and Lyn’s and Harriet’s fraud. Her lack of intent to waive is indicated by the fact that she brought suit against the Lesi-kars well before she began to bill Lyn for expenses. Waiver was not established as a matter of law, and we do not find that the jury’s failure to find waiver is against the great weight of the evidence. Conspiracy In question 4, the jury found that Harriet, Lyn, and “others” were part of a conspiracy that damaged Jenny. The Le-sikars complain of the legal and factual sufficiency of the evidence to support the jury’s finding that Harriet, Lyn, and “others” engaged in a conspiracy. They first contend that there can be no liability for conspiracy because there was no valid underlying tort. They also contend that the evidence negates the finding of a conspiracy because the evidence established the contrary as a matter of law, or the great weight of the evidence demonstrated that neither Lyn nor Harriet knowingly conspired to commit any wrong. We overrule these contentions. The Lesikars challenge both the legal sufficiency and the factual sufficiency of the evidence to support the jury’s finding. We apply the appropriate standards of review, which we have already set out above. A civil conspiracy is a combination by two or more persons or entities to accomplish an unlawful purpose, or a lawful purpose by unlawful means. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983); Facciolla v. Linbeck Constr. Corp., 968 S.W.2d at 444-45. The elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Massey v. Armco Steel Co., 652 S.W.2d at 934; Facciolla v. Linbeck Constr. Corp., 968 S.W.2d at 445. It is not the agreement itself, but an injury to the plaintiff resulting from an act done pursuant to the common purpose that gives rise to a cause of action for civil conspiracy. Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex.1979). In other words, recovery is not based on the conspiracy; instead, it is based on an underlying tort. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996); Fisher v. Yates, 953 S.W.2d 370, 381 (Tex.App.-Texarkana 1997), pet. denied per curiam, 988 S.W.2d 730 (Tex.1998). Types of torts or unlawful acts on which a cause of action for conspiracy may be based include breach of a fiduciary duty and fraud, as in this case. See, e.g., Phippen v. Deere & Co., 965 S.W.2d 713, 722 (Tex.App.-Texarkana 1998, no pet.); Fisher v. Yates, 953 S.W.2d at 381; Vinson & Elkins v. Moran, 946 S.W.2d 381, 411-13 (Tex.App.-Houston [14th Dist.] 1997, writ dism’d by agr.). We have held that the evidence in this case is legally sufficient to support the jury’s findings of breach of fiduciary duty and fraud; therefore, we hold that valid underlying torts were established capable of providing the basis for the conspiracy finding. The Lesikars also contend that neither Harriet nor Lyn knowingly conspired to commit any wrong. Specifically, they contend that Harriet did not know of the assignment of the Clark, Thomas interest when she dismissed Clark, Thomas from the lawsuit. They contend that Lyn acted independently as well, without knowledge of Harriet’s dismissing Clark, Thomas from the lawsuit. One of the essential elements required to establish a civil conspiracy is a meeting of the minds on the object or course of action. Massey v. Armco Steel Co., 652 S.W.2d at 934. Therefore, for conspiracy, the participants must at least have knowledge of the object and purpose of a conspiracy. One without knowledge of the object and purpose of a conspiracy cannot be a co-conspirator; he cannot agree, either expressly or tacitly, to the commission of a wrong of which he is not aware. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 857 (Tex.1968); Pairett v. Gutierrez, 969 S.W.2d 512, 516 (Tex.App.-Austin 1998, pet. denied). Conspiracy may be established by circumstantial evidence. Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex.1963); Fisher v. Yates, 953 S.W.2d at 379. The Texas Supreme Court has stated, “A conspiracy may be proven as well by the acts of the conspirators, as by anything they may say, touching what they intended to do.” Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d at 581 (quoting Whitmore v. Allen, 33 Tex. 355 (1870)). The Supreme Court has further stated: The general rule is that conspiracy liability is sufficiently established by proof showing concert of action or other facts and circumstances from which the natural inference arises that the unlawful, overt acts were committed in furtherance of common design, intention, or purpose of the alleged conspirators. .... It is not required that each and every act of a conspirator be shown to have been in concert with the others or that it be established by direct evidence that all combined at a given time prior to each transaction. Inferences of concerted action may be drawn from joint participation in the transactions and from enjoyment of the fruits of the transactions.... Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d at 581-82 (citations omitted); accord Fisher v. Yates, 953 S.W.2d at 379. We conclude that the evidence is sufficient to support an inference that Lyn and Harriet participated jointly, and knowingly conspired to commit wrongs. As we have noted, while Harriet testified that she did not know about the assignment from Clark, Thomas to Lyn until well after it was executed, she admitted that she had knowledge that Lyn was interested in acquiring the Clark, Thomas interest. Without stating that she actually read any correspondence about the assignment, Harriet also testified that copies of any correspondence from Werley regarding the estate would have been sent to her. In fact, the record reflects that Werley copied “Mr. and Mrs. Lesikar” on both the proposed assignment dated July 14, 1994, which he sent to Bishop, and the “Rule 11 agreement” that he accepted and returned to Bishop on August 8, 1994. In addition, Harriet testified that Werley had advised her on several occasions to dismiss the overpayment litigation, but it was not until a few days after Lyn acquired the interest that Harriet decided to do so. This is sufficient evidence that Harriet knew of the scheme to acquire the Clark, Thomas interest in wells 2 and 5 in exchange for the estate’s overpayment claim. Although Lyn claims he acted independently of Harriet without knowledge of the dismissal, in other matters relating to the estate he acted on Harriet’s behalf and with Harriet’s knowledge. For example, at Harriet’s direction he reviewed the deed records and discovered the overpayment claim. He also calculated the amount of the overpayment, on which Harriet relied in filing suit against Clark, Thomas for the overpayment. In addition, Lyn promised, in agreeing to the “Rule 11 agreement,” that in exchange for Clark, Thomas’s interest in wells 2 and 5, not that he would simply indemnify Clark, Thomas, but that he and Harriet would not pursue the overpayment claim against Clark, Thomas. A promise that Lyn would not seek to collect the overpayment was worthless, because the overpayment claim did not belong to him, but belonged to the estate. Harriet, as a co-executrix of the estate, was needed to fulfill Lyn’s purported independent promise, which she did by dropping Clark, Thomas from the lawsuit just days after the assignment to Lyn was recorded. This is sufficient evidence for the jury to find that Lyn knew of the scheme to acquire the Clark, Thomas interest in wells 2 and 5 in exchange for the estate’s overpayment claim. We conclude that there is sufficient evidence that Lyn and Harriet knowingly conspired to breach Harriet’s fiduciary duty to Jenny and other estate beneficiaries, and to fraudulently acquire the Clark, Thomas interest in wells 2 and 5 in exchange for the estate’s overpayment claim. CONSTRUCTIVE TRUST The Lesikars challenge the jury findings and the trial court’s judgment imposing a constructive trust on the working interest in wells 2 and 5 acquired by Lyn from Clark, Thomas. We find there is sufficient evidence to justify the imposition of a constructive trust. A constructive trust is a device equity uses to remedy a wrong. See Meadows v. Bierschwale, 516 S.W.2d 125 (Tex.1974); Cawthon v. Cochell, 121 S.W.2d 414 (Tex.Civ.App.-Amarillo 1938, writ dism’d). When property has been acquired under circumstances where the holder of legal title should not in good conscience retain the beneficial interest, equity will convert the holder into a trustee. Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158 (1943). A classic case for the imposition of a constructive trust is where one party fraudulently uses something of value belonging to another to acquire title to property for himself. See Lotus Oil Co. v. Spires, 240 S.W.2d 357, 359 (Tex.Civ.App.-El Paso 1950, writ ref'd n.r.e.); Collins v. Griffith, 105 S.W.2d 895 (Tex.Civ.App.-Amarillo 1937, no writ). A constructive trust may be imposed where one acquires legal title to property in violation of a fiduciary relationship. See Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471 (1945); Dilbeck v. Blackwell, 126 S.W.2d 760 (Tex.Civ.App.-Texarkana 1939, writ ref'd). There is ample evidence to justify imposing a constructive trust on the interest acquired by the Lesikars. Although the title to the working interest was assigned to Lyn, the legal title was acquired by Lyn as community property of himself and Harriet. Thus, Harriet also became a holder of an interest in the property by virtue of the assignment. We have previously held that Harriet breached her fiduciary duty in dismissing the overpayment claim and acquiring the Clark, Thomas working interest. Lyn was likewise guilty of fraud and deceit in procuring the interest. The final judgment awarded as damages not only a constructive trust over the Clark, Thomas interest in wells 2 and 5, but also part of the overpayment. The Lesikars contend that the overpayment award, in addition to the constructive trust award, is a windfall. We agree. When one’s funds or other assets are used by a fiduciary to acquire property for himself, the aggrieved party may seek the property itself or its value. See D. Sullivan & Co. v. Ramsey, 155 S.W. 580, 586 (Tex.Civ.App.-San Antonio 1913, no writ); Ingenhuett v. Hunt, 15 Tex.Civ.App. 248, 39 S.W. 310 (1897, writ ref'd); 90 C.J.S. Trusts § 450, at 865 (1955). Thus, the beneficiary may elect which remedy to pursue. Jenny prayed for recovery of the overpayment, or alternatively for a constructive trust on the Clark, Thomas working interest in wells 2 and 5. The jury awarded Jenny both the overpayment and the working interest, and neither the estate nor Jenny has elected between those recoveries. Under the authority of Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361 (Tex.1987), we hold that Jenny should recover her rightful interest in the property, which the evidence shows to be of a greater value than her share of the claim for overpayment. See Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d at 367, holding that where the prevailing party fails to elect between alternative measures of damages, the court should use the findings affording the greater recovery and render judgment accordingly. The amount the jury awarded as the recoverable overpayment was $298,547.00. James Davis’s testimony was that the present market value of the working interest in. wells 2 and 5 was $207,842.69. We are aware that the amount of the recovery for the overpayment might suggest that it is more valuable than the recovery of the ⅜ working interest in wells 2 and 5; however, we must remember that the claim for overpayment was not certain. Jenny’s or the estate’s ability to recover all the alleged overpayment was speculative at best. Moreover, the current market value does not give adequate consideration to future revenues that wells 2 and 5, which are producing wells, will generate. In addition, through all of their conduct, Harriet and Lyn certainly acted as if the working interest in wells 2 and 5 was more valuable than the claim for overpayment. We therefore delete the overpayment award from the judgment and uphold the imposition of a constructive trust, with modification. The final judgment held the entire interest in the Clark, Thomas interest in constructivé trust and distributed it in. equal thirds to Jenny for life, Harriet for life, and Fay in fee simple. However, Lewis bought the interest in the T.W. Lee lease before he and Fay were married; therefore, it was his separate property, which in his will he gave in equal portions to Harriet and Jenny. If the estate had recovered the overpayment, Harriet and Jenny, as co-equal beneficiaries under Lewis’s will, each would have received one half. As such, Lyn holds the Clark, Thomas interest in wells 2 and 5 in constructive trust only as to Jenny’s one half. Jenny should receive that one half, while Harriet keeps the other. As we have stated, the Lesikars argue that they did not release the Clark, Thomas overpayment claim, so the estate lost nothing when they acquired the working interest. They argue that Lyn only indemnified Clark, Thomas against any claims for the overpayment, and Lyn now, in effect, still owes the overpayment to Jenny and the estate. We disagree. Even if Lyn’s indemnification to Clark, Thomas on the overpayment only substitutes one debtor for another, that substitution was not authorized by Jenny or the estate, and it deprives them of a valuable asset — the availability of recovery from Clark, Thomas. Additionally, as we have already noted, substituting Lyn and Harriet as debtors in the place of Clark, Thomas places Harriet in a conflict of interest relationship to the estate. Actual Damages The final judgment indicates that the trial court awarded part of the overpayment as actual damages. The Lesikars raise several contentions relating to that recovery. We have held that because of the election of remedies rule, Jenny cannot recover both the property through a constructive trust and the claim for overpayment that was used to acquire the property. We have sustained the recovery of the working interest by a constructive trust and will eliminate the recovery of the overpayment, thus making it unnecessary to discuss the Lesikars’ remaining contentions pertaining to that recovery. In question 14, the jury awarded Jenny additional actual damages for 1) “costs incurred in correcting the wrongful conduct,” 2) “failure to pay operational expenses on the T.W. Lee Lease,” 8) “loss of the value of the Clark, Thomas interest on August 9, 1994,” and 4) “unpaid estate income tax return preparation expense for tax year 1994.” The judgment indicates that the trial court, rather than awarding the third element, imposed a constructive trust over the interest in wells 2 and 5. The Lesikars contend that the form of Question 14 was error and that the first, second, and fourth damage awards are unrecoverable for various reasons. Form of the Question Question 14 asked, “What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Jenny Lou Lewis Rappeport for her damages, if any, that resulted from such wrongful act you have found in Questions 1, 2, 3, 4, 5 or 12?” (emphasis added). In questions 1, 2, and 3, the jury found Harriet liable for breach of fiduciary duty and Harriet and Lyn liable for fraud. The Lesikars contend that the breach of fiduciary duty and fraud theories on which the damage question was partly predicated limit recovery to damages that are proximately caused by their actions. They contend that the submission of question 14 was error because the court used the words “resulted from” and did not require the jury to find that the damages were proximately caused by the wrongful acts, thereby lessening Jenny’s burden of proof. We overrule this contention. Actual damages available for breach of fiduciary duty and fraud include both general or direct damages and special or consequential damages. See Airborne Freight Corp. v. C.R. Lee Enters., Inc., 847 S.W.2d 289, 295 (Tex.App.-El Paso 1992, writ denied). Direct damages compensate the plaintiff for loss that is conclusively presumed to have been foreseen by the defendant from his wrongful act. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex.1997). Consequential damages, unlike direct damages, are not presumed to have been foreseen or to be the necessary and usual result of the wrong. Plaintiff must plead and prove them separately, and they must be premised on a finding that they proximately resulted from the wrongful conduct of the defendant. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d at 816; Airborne Freight Corp. v. C.R. Lee Enters., Inc., 847 S.W.2d at 295. Thus, courts speak of a proximate cause or a foreseeability showing in the context of special or consequential actual damages only, not in the context of direct actual damages. Additionally, the Texas Pattern Jury Charges suggest that a damage question asking the jury to assign direct damages resulting from fraud should use the words “resulted from,” while a question asking the jury to assign consequential damages should use the words “proximately caused by.” See 4 Comm, on PatteRN JURY CHARGES, STATE BAR OF TEX., TEXAS Pattern Jury Charges PJC 110.19, 110.20 (1990). In the trial court, the Lesikars objected simply that question 14 contained “no issues of proximate cause.” On appeal, they do not contend that question 14 asks the jury to award special or consequential damages. Instead, they argue simply that the breach of fiduciary duty and fraud theories require a finding that the damages were proximately caused by their actions. Assuming the Lesikars’ objection preserved error, their argument is incorrect, and we overrule the contention. Costs Incurred in Correcting the Wrongful Conduct After the assignment of wells 2 and 5 to Lyn, and on the Lesikars’ application made without Jenny’s knowledge, the Railroad Commission transferred the operations of the T.W. Lee lease from L & G to Lyn. As a result, Jenny incurred attorneys’ fees in contesting the transfer of operations before the Railroad Commission. In question 14(1), the jury awarded Jenny $12,000.00 as “costs of correcting wrongful conduct.” The parties have stipulated that the “cost of correcting wrongful conduct” award refers to the Austin attorneys’ fees. The Lesikars challenge the award of the Austin attorneys’ fees on several grounds. One of their arguments is that Jenny was required, but failed, to present expert testimony that the fees were reasonable and necessary. Without addressing the Lesikars’ other arguments, we sustain the point on this ground. As a general rale, unless expressly provided for by statute or contract, attorneys’ fees incurred in the defense or prosecution of a lawsuit are not recoverable. Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964). But, attorneys’ fees incurred in prior litigation with a third party are recoverable in a subsequent suit as actual damages. See Turner v. Turner, 385 S.W.2d at 234; Standard Fire Ins. Co. v. Stephenson, 963 S.W.2d 81, 90 (Tex.App.-Beaumont 1997, no pet.); Crum & Forster, Inc. v. Monsanto Co., 887 S.W.2d 103, 129 (Tex.App.-Texarkana 1994, judgm’t vacated w.r.m.); Nationwide Mut. Ins. Co. v. Holmes, 842 S.W.2d 335, 340-41 (Tex.App.-San Antonio 1992, writ denied); Baja Energy, Inc. v. Ball, 669 S.W.2d 836 (Tex.App.-Eastland 1984, no writ); Powell v. Narried, 463 S.W.2d 43 (Tex.Civ.App.-El Paso 1979, writ ref'd n.r.e.). The recovery in such a case is based on equitable grounds because the claimant was required to prosecute or defend litigation as a consequence of the wrongful act of the defendant. As in the traditional recovery of attorneys’ fees, the plaintiff may recover as damages only those attorneys’ fees that are reasonable and necessary. See Turner v. Turner, 385 S.W.2d at 234; Nationwide Mut. Ins. Co. v. Holmes, 842 S.W.2d at 340-41; Powell v. Narried, 463 S.W.2d at 46. As stated by the court of appeals in Powell, [W]here the natural and proximate consequence of a wrongful act has been to involve a plaintiff in litigation with others, there may, as a general rule, be a recovery in damages of the reasonable expenses incurred in such prior litigation ... but such expenses ... must have been incurred necessarily and in good faith, and the amount thereof must be reasonable. Powell v. Named, 463 S.W.2d at 46 (emphasis added); accord Nationwide Mut. Ins. Co. v. Holmes, 842 S.W.2d at 340-41. At trial, Jenny’s attorney asked Jenny only whether she deemed the Austin attorneys’ services, not fees, reasonable and necessary. Jenny answered that she did. The Lesikars objected that “what [Jenny] deems reasonable and necessary ... is not relevant.” They did not offer any controverting evidence. The Lesikars’ first contention is that the trial court erred in overruling their objection to Jenny’s testimony, in which they claim she testified that her Austin attorneys’ fees were reasonable and necessary. They argue that Jenny is not qualified to testify as to the reasonableness and necessity of attorneys’ fees. We do not decide whether Jenny’s opinion that her attorneys’ fees were reasonable and necessary, had she given it, is irrelevant to that issue. Jenny’s testimony was only that she considered the Austin attorneys’ work on her case, not their fees, reasonable and necessary. Whether the admission of this particular testimony was irrelevant generally, we need not decide, because this testimony certainly is irrelevant to our determination of the Lesikars’ second contention that without expert testimony, there is insufficient evidence of reasonable and necessary attorneys’ fees. Other than Jenny, no witness testified regarding the Austin attorneys’ fees. Thus, there was no testimony, expert or otherwise, regarding whether those fees were reasonable and necessary. The only other evidence related to the Austin attorneys’ fees were invoices the Austin attorneys sent to Jenny for payment, which indicated the amount of the fees but did not indicate the number of hours worked or an hourly rate. Jenny has cited no authority, and we have found none, expressly setting out a standard for determining reasonableness in cases where attorneys’ fees are sought as damages. We note that in Powell, in denying recovery of attorneys’ fees because of several inadequacies in the record, the court suggested that some testimony that the fees are reasonable and necessary is required. See Powell v. Narried, 463 S.W.2d at 46. Rather than address the sufficiency of her evidence, Jenny argues that pursuant to Section 38.003 of the Texas Civil Practice and Remedies Code, she is entitled to the presumption that “the usual and customary attorney’s fees for a claim of the type described in