Full opinion text
OPINION ON REHEARING TIM TAFT, Justice (Retired). The Court’s opinion and judgment in this case issued on April 16, 2010. JSC Neftegas-Impex (“JSCNI”) moved for rehearing, and Citibank, N.A. (“Citibank”) responded to that motion. After due consideration, the Court grants JSCNI’s motion for rehearing, withdraws its opinion and judgment dated April 16, 2010, and issues today’s opinion and judgment in their stead. A jury rendered judgment in favor of JSCNI and against Transcontinental Products and Services, Inc. (“TPS”) for fraud and breach of fiduciary duty. The jury also rendered judgment in favor of JSCNI and against Citibank for fraud, knowing participation in TPS’s breach of fiduciary duty, and conspiracy. The jury awarded actual damages against both defendants and exemplary damages against Citibank. The trial court granted in part Citibank’s motion for judgment non obstante verdicto (“JNOV”), rendering a take-nothing judgment on the claims for knowing participation in TPS’s breach of fiduciary duty and conspiracy and the award of exemplary damages. Both JSCNI and Citibank appeal. We modify the judgment and affirm it as modified. BACKGROUND OAO Neftegas (“Old Neftegas”) was founded in 1991 by Leonard Rafikov, its president, an experienced business person who had been the director of Cbnefteprovd and the First Deputy Prime Minister of the Oil Industry of the former Soviet Union. Over the course of the events relevant to this suit, Old Neftegas went bankrupt and assigned certain of its rights and liabilities to ZAO Neftegas (“New Nefte-gas”). In 1997, New Neftegas entered into a joint venture with TPS and another company as part of a later phase of a refinery project (“the Project”). This joint venture was JSCNI, the only of the Nefte-gas entities that is a party to this appeal. Nikolai Kashuro was the Director of Economy and Finance for Old and New Nefte-gas. TPS, a Houston-based company, was interested in doing business by facilitating projects in Russia. Its co-owners were Irfan Abji, its president and a former loan executive with Citibank; Peter Karber, its executive vice-president; and Manuel Santos, who, along with his family, were important clients of Citibank. Karber and Abji met Edward Sartan, a Russian-born American who had been working in Russia, who would later become TPS’s consultant and an interpreter and translator for the Neftegas entities for the project described below. Sartan introduced Abji and Kar-ber to Rafikov. The Project involved the development of mini-refineries in Siberia, Russia, something that Old Neftegas desired. Rafikov proposed the Project to TPS. TPS introduced Rafikov to John Kermath, a Citibank vice-president, as part of these discussions. In June 1994, Old Neftegas contracted with Avanti International (“Avanti”), a Houston company, for equipment, installation, and related training needed for the Project. The Avanti-Old Neftegas contract required letters of credit from a prime bank. Also in June 1994, Old Neftegas engaged TPS to initiate and to conduct discussions for financing for the Project with third-party financial institutions for up to $60 million. The same month, TPS engaged Citibank to structure the transaction and to provide financing because TPS did not have the experience to do so itself. The principal Citibank representative interacting with TPS and the Neftegas entities throughout the transaction was Kermath. Over the next three and a half years, the Project and its proposed financing underwent three phases: 1. Phase I: this phase was structured to be a credit facility with Old Nefte-gas as the borrower and with the Exim Bank, pursuant to the Oil and Gas Framework Agreement (“OGFA”) between Russia and the United States, as guarantor. 2. Phase II: this phase was structured to be a 36-month “pass through” revolving credit facility in which TPS was Citibank’s borrower and Old Neftegas was TPS’s borrower. 3. Phase III: this phase was structured so that the joint venture JSCNI would enter into a lease with TPS, which as lessor would assume the Avanti contract and be Citibank’s borrower under a three-year, revolving credit facility. The transaction’s phases, and the operative documents for Phase III (which is at issue here), are set out in detail later in the opinion. Over the Project’s three phases, the Neftegas entities periodically paid fees to, or expenses of, TPS and Citibank. The closing on the Phase III operative contracts took place in Houston, Texas on August 15, 1997. Present at the closing were Kermath, Rafikov, Sartan, and TPS representatives, among others. The parties disputed at trial whether, before the contracts were signed, Rafikov and Ker-math negotiated a security-deposit schedule for collateral different from the one contained in the contracts signed that day, including an initial security deposit of $550,000. JSCNI’s evidence, however, showed that this verbal discussion and agreement occurred. The parties also disputed at trial whether Kermath represented, both at the closing and at a post-closing dinner, that financing would be provided shortly after JSCNI sent Citibank the first security deposit of $550,000. Again, however, JSCNI’s evidence showed that Kermath made such statements. The Phase III contracts signed on August 15 made JSCNI the lessee of the Project equipment, made TPS the equipment’s lessor, made TPS the borrower of Citibank, and authorized TPS to pursue financing on terms and conditions acceptable to it. Pursuant to that authority, TPS and Citibank agreed to a revolving credit facility that contained two aspects at issue in this appeal: (1) a $40-million facility limit, which was less than the facility limits in Phases I and II; (2) collateral consisting entirely of cash investments or United States government obligations; and (8) a prerequisite to financing that TPS, which had a negative net worth, maintain a minimum net worth of $500,000 and an asset-to-liability ratio of 1:1. On November 5, 1997, Kermath sent TPS a commitment from Citibank for financing Phase III (“the Commitment Letter”). The Commitment Letter indicated that financing was conditional on several things. One of the conditions to the facility’s effectiveness was “initial funding of at least $550,000” in an account designated by the Phase III contracts. The evidence favorable to JSCNI is that this “initial funding” was the initial security deposit that Kermath and Rafikov had negotiated at the August 15 closing. All parties knew that the $550,000 security deposit would come from JSCNI because TPS had a negative net worth at the time. The Commitment Letter also recited the $40-mil-lion credit-facility limit and the full-eash-collateral requirement. TPS solicited the $550,000 payment from JSCNI, but forwarded only part of the Commitment Letter to it, omitting the pages on which the credit-facility limit and full-cash-collateral requirement appeared. JSCNI paid the $550,000 to Citibank. Unbeknownst to JSCNI, some of these funds were spent on repayment of Santos, payment of Citibank’s legal and advisory fees, draws to Karber and Abji, and payment of certain of TPS’s expenses. In December 1997, Citibank revoked the Commitment Letter, stating that the sole basis for the revocation was its having learned that Karber had a criminal history. The parties disputed at trial whether Ker-math knew from the Project’s start that Karber had a criminal history, but JSCNI’s evidence showed that he did. Although JSCNI contended below that Citibank’s revocation was pretextual, it has abandoned on appeal any theory of recovery based on Citibank’s failure to finance the Project. At the end of the day, not only did the Project fail, but TPS reimbursed JSCNI only $100,000 of its $550,000 security deposit. Avanti was the first to file suit, alleging claims against TPS and Citibank. Avanti’s claims were disposed of in ways that are immaterial to this appeal. JSCNI intervened in Avanti’s suit, alleging claims against TPS and Citibank. By the time of trial, JSCNI was alleging the following claims: • fraud against Citibank and TPS, • negligent misrepresentation against Citibank and TPS, • breach of fiduciary duty against Citibank and TPS, • knowing participation in breach of fiduciary duty against Citibank, and • conspiracy. The trial court charged the jury on all claims except the negligent-misrepresentation claims against both TPS and Citibank. The jury found TPS liable for fraud and breach of fiduciary duty and awarded actual damages of $815,000 (70% of $450,000) for fraud and $1,181,000 for breach of fiduciary duty. The jury found Citibank liable for fraud, knowing participation in TPS’s breach of fiduciary duty, and conspiracy in TPS’s breach of fiduciary duty and fraud. It awarded actual damages of $135,000 (30% of $450,000) for fraud and exemplary damages of $2.25 million against Citibank. The trial court rendered judgment on all aspects of the verdict against TPS and rendered judgment against Citibank on the jury’s finding of fraud and the related actual damages. The trial court granted Citibank’s motion for JNOV on the jury’s findings against it for knowing participation in TPS’s breach of fiduciary duty, for conspiracy, and for exemplary damages. JSCNI and Citibank appeal, but TPS does not. CITIBANK’S APPEAL In three issues, Citibank argues that it is entitled to a take-nothing judgment as a matter of law on JSCNI’s claim for fraud. Specifically, Citibank argues that the trial court erred in denying its motions for directed verdict and JNOV on this claim because (1) no evidence supports the jury’s damages finding because the evidence conclusively proved that the disputed $500,000 payment was made not by JSCNI, but by a separate entity; (2) no evidence supports the jury’s fraud finding; and (3) the verbal representations upon which JSCNI’s fraud claim relies cannot support, for various reasons, the jury’s finding or judgment. Standard of Review When made on an evidentiary basis, rulings on a motion for JNOV and directed verdict are reviewed under the same legal-sufficiency test as are appellate no-evidence challenges. See City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex.2005). When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue for which it did not have the burden of proof, it must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). Such a no-evidence challenge will be sustained when “ ‘(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.’ ” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Merrell Dow Pharms., Inc. v. Hamer, 953 S.W.2d 706, 711 (Tex.1997)). In our legal-sufficiency review, “we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary.” Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). Nonetheless, “[t]he final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.... [L]egal-sufficien-cy review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” City of Keller, 168 S.W.3d at 827. Particularized forms of this general standard of review apply in certain cases. For example, in cases “involving what a party knew or why it took a certain course,” a court “cannot review whether jurors could reasonably disregard a losing party’s explanations or excuses without considering what they were,” although the reviewing court may nonetheless not “credit a losing party’s explanations or excuses if jurors could disregard them.” Id. at 817-18. Additionally, “when the circumstantial evidence of a vital fact is meager” — that is, when “ ‘the circumstances are equally consistent with either of two facts’ ” — we “must consider not just favorable but all circumstantial evidence, and competing inferences as well.” Id. at 813-14 (quoting Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex.1991)). “Properly applied, the equal inference rule is but a species of the no-evidence rule, emphasizing that when the circumstantial evidence is so slight that any plausible inference is purely a guess, it is in legal effect no evidence. But circumstantial evidence is not legally insufficient merely because more than one reasonable inference may be drawn from it. If circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable .... ” Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001) (Phillips, C.J., concurring & dissenting, joined by 4 JJ). If more than a scintilla of evidence supports the jury’s finding, “the jury’s verdict ... must be upheld.” Miller, 102 S.W.3d at 709. “[M]ore than a scintilla of evidence exists if the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). Conversely, evidence that is “ ‘so weak as to do no more than create a mere surmise’ ” is no more than a scintilla and, thus, no evidence. Id. (quoting Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex.1983)). The jury is the sole judge of witnesses’ credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. City of Keller, 168 S.W.3d at 819. Because it is the jury’s province to resolve conflicting evidence, we must assume that jurors resolved all conflicts in accordance with their verdict. Id. at 819-20. Likewise, “[e]ven if evidence is undisputed, it is the province of the jury to draw from it whatever inferences they [sic] wish, so long as more than one is possible and the jury must not simply guess.” Id. at 821. JNOV or directed verdict is also proper when a legal principle precludes recovery. See John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.-Houston [1st Dist.] 1993, writ denied). To the extent that such a ruling is based on a question of law, we review that aspect of the ruling de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994) (“[(Questions of law are always subject to de novo review.”); Elliott v. Whitten, No. 01-02-00065-CV, 2004 WL 2115420, at *3 (Tex.App.-Houston [1st Dist.] September 23, 2004, pet. denied) (memo.op.). Damages Under issue three, Citibank argues that the trial court erred in denying its motion for JNOV because “[t]here is no evidence that [JSCNI] incurred expense damages of $450,000 attributable to the $550,000 payment” to Citibank. In support, JSCNI points to evidence that an entity named Sunflower Business Group (“Sunflower”) paid the $550,000, that neither the payment nor any obligation of Sunflower appears on the financial statements or general ledger of JSCNI, and that no assignment concerning the funds between the two entities appears in the record. However, (1) JSCNI’s written instruction for Sunflower to pay the $550,000 recited that the payment be made “in accordance with the terms and conditions of obligation taken to implement the function of financial agent ...” (emphasis added) and (2) a March 1998 agreement between TPS and JSCNI required that TPS transfer the entire $550,000 back to JSCNI (not Sunflower) if the loan did not close by March 31, 1998. This is some evidence that the $550,000 was JSCNI’s and that Sunflower paid it as JSCNI’s agent. We overrule issue three. Legal and Evidentiary Challenges to Liability Under issue one, Citibank argues that “there is no evidence to support the jury’s finding of fraud against Citibank....” Under issue two, Citibank argues that Ker-math’s verbal representations could not support JSCNI’s fraud claim for various reasons and, alternatively, that JSCNI could not reasonably have relied on those representations given the application of the statute of frauds. A. The Allegations, Charge, and Verdict JSCNI alleged that Citibank had committed fraud by making false statements of fact, promises of future performance without intent to perform, and failure to disclose information when there was a duty to disclose. Specifically, JSCNI alleged that: 1. Citibank had falsely represented that it would arrange financing for the project; 2. Citibank had terminated its financing commitment for pretextual reasons, i. e., because of Karber’s criminal history; and 3. Citibank had a duty to disclose, but failed to disclose, the following facts: (a) that financing was still dependent upon due diligence relating to Kar-ber’s history, when Citibank (through Kermath) had represented that the deal was done and (b) that the $550,000 would be used in ways contrary to the way in which Citibank had represented that it would be used (as a security deposit). JSCNI sought actual and exemplary damages. The jury was charged: [FJraud occurs when: a. a party makes a material misrepresentation, b. the misrepresentation was made with knowledge of its falsity or made recklessly without any knowledge of the truth as a positive assertion, c. the misrepresentation is made with the intention that it should be acted on by the other party, and d. the other party relies on the misrepresentation and thereby suffers injury.® Misrepresentation means: a. a false statement of fact, or b. a promise of future performance made with an intent, at the time the promise was made, not to perform as promised. You are further instructed that fraud occurs when: a. a party fails to disclose a material fact within the knowledge of that party, b. the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth, c. the party intends to induce the other party to take some action by failing to disclose the fact, and d. the other party suffers injury as a result of acting without knowledge of the undisclosed fact. The jury (1) found Citibank liable; (2) awarded actual damages of $450,000 to JSCNI, apportioning 30% responsibility ($135,000) to Citibank and 70% ($315,000) to TPS; and (3) having found clear and convincing evidence of fraud, awarded exemplary damages of $2.25 million against Citibank alone. The trial court denied Citibank’s motion for JNOV on fraud liability and actual damages, as it had done in denying Citibank’s earlier motion for directed verdict, but granted its JNOV on exemplary damages. B. The Bases for JSCNI’s Fraud Claim On appeal, JSCNI admits that its fraud claim “is based upon Citibank’s misrepresentations and failures to disclose information that caused [JSCNI] to transmit $550,000 to Citibank as an initial security deposit for the Transaction.” In support of this fraud theory, JSCNI identifies only three bases comprising its claim: (1) that Citibank made false statements of fact through Kermath in connection with the use of the security deposit; (2) that Citibank made false statements of fact through Kermath that the transaction was complete after the negotiation of the scheduled amounts of security deposit at the August 15, 1997 closing; and (3) that Citibank failed to disclose material information that made earlier representations misleading or untrue. JSCNI further expressly rejects that it pursued or is pursuing any theory of fraud based upon “Citibank’s failure to provide funding for the Project.” We construe JSCNI as having abandoned on appeal any theory of fraud other than those relating to the $500,000. See Martin v. Martin, Martin & Richards, Inc., 991 S.W.2d 1, 4 n. 1 (Tex.App.Fort Worth 1997) (noting that appellees abandoned summary-judgment ground of collateral estoppel by stating in appellate brief that “they do not rely upon that doctrine”), rev’d on other grounds, 989 S.W.2d 357 (Tex.1998); Commercial Ins. Co. of Newark, N.J. v. Williamson, 328 S.W.2d 796, 797 (Tex.Civ.App.-San Antonio 1959, no writ) (noting that appellee had abandoned sole ground that his controverting plea to plea of privilege had raised in trial court and not considering that ground on appeal). Because we no longer need to reach them, we overrule those challenges of Citibank’s under issues one and two that attack the rendition of judgment on any fraud theory not relating to the $550,000 security deposit — specifically, that Citibank committed fraud by having structured an unfair transaction and by falsely having promised to arrange financing. C. Citibank’s Statements Concerning the Use of the $550,000 In the remainder of its issues one and two, Citibank challenges the legal sufficiency of the evidence supporting the jury’s implicit findings of intent and reliance. We begin with the theory that Citibank committed fraud by misrepresenting the $550,000’s use. What the parties believed the nature of the $550,000 to be, and how they believed that it would be used, must be gauged in light of any applicable contractual terms to which they agreed. We thus begin with the pertinent language of the Phase III contracts and of the agency contract between Old Neftegas and TPS (“the Engagement Agreement”) before turning to the remaining evidences. 1. The 1994 Engagement Agreement The June 14, 1994 Engagement Agreement between TPS and Old Neftegas engaged TPS on an exclusive basis to provide financial advisory services for the project to Old Neftegas, with financing being up to $60 million. TPS was empowered to initiate and to conduct discussions for financing with third-party financial institutions. As for TPS’s agency, the agreement provided: Except as expressly empowered in writing to do so by [Old Neftegas], TPS will not have authority to accept any offer or proposal of Financing from, or enter into any commitment with, third parties on behalf of [Old Neftegas].... [Old Neftegas] agrees to indemnify, defend, and hold harmless TPS from and against all losses, costs, expenses (including attorneys’ fees) and liabilities arising in connection with (1) TPS’s performance of its services hereunder and (2) the Financing obtained in connection herewith, except to the extent such losses are the result of the sole negligence or misconduct of TPS. 2. The Participation Agreement The Participation Agreement — which TPS, JSCNI, and the guarantors (named below) signed — provided that “Deposits” would be made to a “Designated Account” at Citibank “for the benefit of [TPS].” “Deposits” were defined as any sums paid as guarantor under the transaction to TPS, and “Designated Account” was defined as “an account maintained by [TPS] at [Citibank] and to which the Deposits will initially be transferred.” (Emphasis added.) The agreement also provided for an “Initial Deposit,” in the aggregate amount of $350,000, which the guarantors agreed to pay. This Initial Deposit was due on the first “Deposit Date,” which was then set at September 1, 1997 (and later extended). The payment of this Initial Deposit was the “Trigger Date,” within two days after which TPS was to authorize Avanti to begin construction. TPS was to be paid a “Transaction Fee” — totaling $1.8 million — as compensation for arranging the lease financing. The Transaction Fee would be paid in six $300,000 installments, under a schedule starting 30 days after the date that an Initial Deposit was made by any guarantor, ie., the Trigger Date. With five days’ written notice to the guarantors, TPS could take from the Deposits any of the Transaction Fees as they became due, even without an event of default. The agreement also provided that JSCNI would pay “Transaction Costs” to TPS, any credit provider, and the guarantors— in an aggregate of $100,000 — which were described as certain attorney’s fees of TPS, Citibank, and JSCNI and certain other transaction costs. Citibank’s referenced attorney’s fees were those accrued “in connection with [TPS’s] financing of the purchase price of the Equipment” under the lease. JSCNI’s obligation to pay Transaction Costs applied “without regard to whether the transactions contemplated hereby are consummated.” However, anyone requesting payment of these costs had to submit its invoices to JSCNI, and JSCNI had the right to review and to approve any bills for legal expenses. If the Participation Agreement or any other operative contracts were terminated because the Trigger Date did not occur, then JSCNI and the guarantors were required to hold harmless and to indemnify TPS for all losses, costs, expenses, claims, damages and liabilities incurred as a result of its being a party to the Participation Agreement and any other operative contract or its being engaged in the transaction, and JSCNI would still be liable for the Transaction Costs of up to $100,000. A similar covenant applied if the termination occurred after the Trigger Date, although TPS also agreed to apply all of the Deposits held in the Designated Account first, among other things, to repayment of itself for any amounts owed it by JSCNI under the Participation Agreement and the Equipment Lease. Finally, if termination occurred because of the failure of all conditions precedent to any operative document, then JSCNI would still be liable for the Transaction Costs, and the guarantors were required to hold harmless and to indemnify TPS for all losses, costs, expenses, claims, damages and liabilities incurred as a result of its being a party to the Participation Agreement and any other operative contract or its being engaged in the transaction. 3.The Guaranty Agreements The Guaranty Agreements were executed by TPS and New Neftegas, Rodos International Ltd. (“Rodos”), and Donaclove Ltd. (“Donaclove”), the last two of which companies were affiliated in some way with New Neftegas. The Guaranty Agreements contained complementary provisions and adopted the other Phase III contracts’ definitions. The Guaranty Agreements required each guarantor to provide, as security for the guaranteed obligations, an “Initial Security Deposit” of $350,000. (This appears to correspond to the Participation Agreement’s Initial Deposit.) The guarantors were also required to collaterally assign certain product sales agreements to TPS and to make scheduled deposits of the proceeds generated under those contracts. Like the Participation Agreement, the Guaranty Agreements required the guarantors to pay the Initial Deposit and all subsequent Deposits to TPS into the Designated Account maintained by TPS at Citibank. The agreement dearly made all Deposits the property of TPS. TPS was further authorized to apply the Deposits to the payment of its obligations under the “Credit Agreement” (which was never executed), to any payments due under the Equipment Lease Agreement (which never became effective), to the Participation Agreement’s Transaction Fees (which were dependent upon the Trigger Date’s occurrence), and to the acquisition and lease of the equipment under the lease (which never transpired). Any portion of the Deposits remaining after such obligations had been paid in full and the lease had been terminated were to be returned to the guarantors. 4. The Equipment Lease Agreement The Equipment Lease Agreement— which TPS and JSCNI signed — likewise defined “Deposits” as any deposit made by a guarantor. Under its terms, TPS could tap into Deposit funds when an “Event of Default” occurred under the agreement. One of the conditions precedent to this agreement’s effectiveness was that TPS receive financing “on terms and subject to considerations acceptable to [TPS].” (Emphasis added.) 5. The Commitment Letter Pursuant to TPS’s authority under the Equipment Lease Agreement to obtain financing, Citibank issued the November 5, 1997 Commitment Letter to TPS. Under the heading “Collateral,” the letter provided that Citibank would receive a first priority security interest in “one or more investment management accounts at Citibank ... owned by [TPS] or shareholders of [TPS] acceptable to [Citibank].” The letter defined these accounts as “Investment Accounts.” As a condition to the facility’s effectiveness and to the initial advance of letters of credit, the letter required that “initial funding of at least $550,000” be made “in the Investment Accounts”; that the Trigger Date described in the Participation Agreement have occurred; and that TPS pay “all outstanding legal and other expenses incurred by [Citibank] in connection with the transaction.” (Emphasis added.) Additionally, the Commitment Letter provided that “[a]ll reasonable expenses, including legal expenses, for the account of [TPS] and Manuel Santos” be paid, providing that “[t]hose expenses incurred and billed before closing are payable at dosing.” (Emphasis added.) 6. The Remaining Evidence The remaining evidence, either undisputed or viewed in the light most favorable to JSCNI, shows the following. At the August 15, 1997 closing, Kermath for Citibank and Rafikov for JSCNI negotiated the amount and schedule of all of the security deposits for the transaction. The negotiated security deposits included the $550,000, which Sartan described as “the initial security deposit.” Sartan, Kashuro, and Rafikov understood the $550,000 to be a security deposit, and they believed that it would be spent only for a default under the lease and not, for example, to pay Citibank’s legal fees or to fund an account for Santos. In later correspondence to TPS soliciting the $550,000, Kermath described the $550,000 as “the initial funding ... in the Investment Accounts” .as the latter were defined in the Commitment Letter (TPS accounts in which Citibank would have a first priority security interest, i.e., collateral accounts), and Citibank’s internal confirmation of the payment’s receipt described the payment as a security deposit. TPS’s and JSCNI’s November 1997 correspondence leading up to the payment described the $550,000 as a security deposit or “the first security deposit,” as did Rafikov’s confirmatory letter to TPS advising that payment had been made. Rafikov opined that “Citibank is supposed to control [the accounts containing the security deposits] as its own.” There was no testimony that any Citibank representative made oral representations distinguishing the nature or use of the $550,000 security deposit (other than its source being JSCNI and that it was the initial deposit) from the nature or use of the other security deposits under the Guaranty Agreements. For example, Ra-fikov opined that the $550,000 was “supposed to stay in that has been touched [sic] until it grew til $3 million” in total security deposits and admitted that he did not have a discussion with Kermath about the $550,000 security deposit’s use because “it is recorded in the documents” and “Everything was written.” Rafikov’s testimony corresponds to an August 27, 1997 schedule that TPS’s Abji sent to JSCNI’s Kashuro, showing revised “minimum security deposit amounts as agreed.” Rafi-kov and Kashuro testified that the revisions in Abji’s August 27 correspondence reflected the security-deposit agreement that Rafikov and Kermath had reached at the August 15 closing, modifying the Guarantee Agreements’ schedule of deposits. The attached revised schedule showed an initial “minimum security deposit” of $550,000 in July 1997 — with a Transaction Fee of $800,000 payable during the same month (and a $1.8 million total fee) — followed by four more minimum security deposit payments of $612,500 each over an 18-month period. Rafikov testified that the five scheduled payments together equaling $8 million were all security deposits. JSCNI relied on the August 27 revised security deposit schedule at trial. The $550,000 was deposited into an account styled the “Transcontinental Products & Services No. 2” account. An internal Citibank email dated November 19, 1997 stated that the wired funds had been credited to “TPS # 2 DDA Account” and noted that the funds “will be transferred today into TPS’s Landmark account until further distribution at closing” of the loan. Kermath believed that the receiving account was a checking account of TPS. However, the account information instead corresponds to a TPS account at Citibank that was established in Phase II to serve as a receiving point for “cash payment credit payments” — for which TPS would lend up to $9 million to JSCNI through reimbursement of letters of credit — under a Transaction Agreement that never came to fruition. Because the Phase II contracts were superseded by those of Phase III, it is unclear what the designated purpose of this account was when it received JSCNI’s $550,000, except that it was in TPS’s name. However, the evidence does not indicate that it was the collateral Investment Account for which the Commitment Letter provided. One hundred thousand dollars of the $550,000 was ultimately reimbursed to JSCNI, but the remainder was used for things such as repayment of Santos (TPS’s shareholder and an important client of Citibank’s apart from this transaction), payment of Citibank’s legal and advisory fees, draws to Karber and Abji, and payment of certain of TPS’s expenses. The evidence viewed in the light most favorable to JSCNI indicates that Citibank advised TPS to make at least some of these payments. For example, on November 21, 1997, two days after JSCNI’s payment of the $550,000 and in response to an internal Citibank email asking for account information for “accounts that will hold collateral,” Kermath advised by internal bank email that an “ ‘Investment Account’ ” would be opened and that it would “hold part of the initial funding of $550,000” (emphasis added), but that “the rest” of this money would “be in [Manuel Santos’s] account— another ‘Investment Account.’ ” Abji testified that it was “Citibank’s” — specifically, Kermath’s — “advice that part of [the $550,000] go to Manuel Santos’s account” and that TPS reimbursed Santos from the $550,000. Likewise, according to Karber’s recollection of a November 24, 1997 meeting between TPS and Citibank, Kermath stated that “we need to change this 550.” Karber understood that the “change” that Kermath meant was that “the money was not going to be retained by Citibank” or to “remain in the collateral account.” Instead, Karber understood that the $550,000 would be used to pay Citibank’s and TPS’s attorneys, to pay TPS’s overhead, and to reimburse Santos and that “TPS could use all the money under ... this $550,000 because the bank knew that we needed the money and we had to have the $550,000” — all understandings that Karber got from Kermath and Roberts. Karber testified that he heard Kermath say that “this is what we are going to do here” with the $550,000. A summary of some of the uses of the $550,000 indicated that, from TPS’s account into which the $550,000 was sent, $23,842 was paid the very next day (on November 25, 1997) to Citibank’s legal counsel; $10,000 was paid on December 19 to TPS’s legal counsel; and $1,625 in expenses and reimbursements were paid on November 25 and December 19 and 30. The summary also indicated that $20,500 of the $550,000 was paid to Manuel Santos in late December 1997, although the summary shows this money coming from another account. The total payments indicated — several clearly paid to TPS representatives — were $185,870. Abji and Karber understood the $550,000 to be a partial payment or prepayment of the total $1.8 million in Transaction Fees that the Participation Agreement allowed TPS. However, nothing indicates that TPS gave JSCNI the five-day notice to guarantors required for taking Transaction Fees from the security deposits. Likewise, Kermath’s testimony could be read to imply that the $550,000, like all security deposits, was useable at that time to pay transaction expenses, including Citibank’s attorney’s fees; however, nothing shows that Citibank submitted its attorney’s fees bills to JSCNI for review and reimbursement as Transaction Costs, as required by the Participation Agreement. 7. Citibank’s Arguments Citibank argues that any oral representations that the $550,000 would be held only as a security deposit or would be under Citibank’s sole control cannot support the fraud judgment because the Phase III contracts contradicted any such representations. Specifically, Citibank contends that 1. the Guaranty Agreements allowed for these funds to be used as authorized by the Participation Agreement; 2. the Participation Agreement provided that this deposit become TPS’s property upon deposit; 3. the Participation Agreement, the Guaranty Agreements, and the Commitment Letter allowed for TPS to apply the funds to credit-agreement obligations, to acquire and to lease equipment, or to pay itself the $1.8 million Transaction Fee and Transaction Costs; 4. the June 1994 “Engagement for Financial Services” agreement between TPS and Old Neftegas required the latter to reimburse the former promptly for all out-of-pocket expenses incurred in negotiating financing; and 5. Citibank had no right to interfere with TPS’s use of the funds unless and until the transaction closed. In this last regard, Citibank urges that even if TPS misspent JSCNI’s funds, there is no evidence that Citibank did so or that it “directed TPS to make [the] distributions” of which JSCNI complained. Citibank contends that JSCNI’s reliance on any oral statements concerning the $550,000’s use and Citibank’s control over it that differed from the contractual provisions was, as a matter of law, unreasonable. Citibank further contends that, because the Phase III contracts authorized TPS’s use of the funds when they were spent, there is no evidence of materiality or scienter by Citibank. Finally, Citibank argues that reliance on any oral representations contrary to the Phase III contracts was unreasonable given the application of the statute of frauds and the contracts’ merger clauses. 8. Discussion The parties point us to no evidence that any Citibank employee represented that the $550,000 security deposit would be treated differently, once placed in TPS’s account, from the remaining security deposits required under the Guaranty Agreements. It thus appears that the only representations by Citibank concerning the $550,000’s use or Citibank’s control over it were made in (1) Kermath’s November 9, 1997 correspondence about the Commitment Letter and the Commitment Letter itself, the payment requests that Kermath expected TPS to convey to JSCNI, and (2) Kermath’s statements at the August 15 closing concerning a minimum security-deposit schedule, the terms of which were memorialized in Abji’s August 27 schedule, sent to Kashuro, that TPS and Rafikov signed. We thus focus on these representations. Nothing in these representations indicates that Citibank would have sole control over the $550,000 until closing. In fact, the account into which the funds were deposited was in TPS’s name, this was a TPS account other than the Investment Account for holding collateral, and TPS was not contractually required to assign Citibank a security interest in its funds until after closing. But this does not necessarily insulate Citibank from liability. First, and contrary to Citibank’s assertions, the evidence favorable to JSCNI does show that Citibank advised TPS on the nature' of the funds and how to spend them. For example, Citibank advised TPS to use these funds to reimburse Santos — who was, along -with his family, a very important, preexisting client of Citibank independent of this transaction — and to pay Citibank’s attorney’s fees. Within days of receiving JSCNI’s money, Kermath told TPS’s Abji and Karber that “we need to change this 550” thousand dollars, advising TPS on how to spend the money. Second, Kermath’s cited representations indicated that the $550,000 would be held under the same terms as would all other security deposits. It was thus reasonable for JSCNI to rely on its $550,000’s being treated the same as the other security deposits under the Phase III contracts, even though JSCNI was not a guarantor. Citibank contends that TPS spent JSCNI’s deposit as the Guaranty Agreements and the Participation Agreement allowed, but the evidence viewed in the light most favorable to JSCNI shows that TPS did not. For example, although the Participation Agreement defined the Trigger Date as the date on which an Initial Deposit was made by a guarantor, TPS and Citibank did not treat the date of JSCNI’s $550,000 payment as the Trigger Date — as evidenced by, among other things, TPS’s failure to instruct Avanti to begin construction. In any event, the Participation Agreement did not allow TPS to withdraw its Transaction Fee until 30 days after the Trigger Date had occurred. The Participation Agreement thus did not allow TPS to use JSCNI’s funds to pay itself a portion of the Transaction Fee at that time. The jury could have reasonably discredited Abji’s and Karber’s testimony that the $550,000 was disposable as part of the Transaction Fee when the contracts did not then allow it. Additionally, although the Guaranty Agreements allowed TPS to apply security deposits toward certain obligations of JSCNI under other Phase III contracts (credit agreement obligations, lease agreement obligations, leasing of equipment, and Transaction Fees), those obligations were not triggered because the operative events or contracts never occurred or became effective. Furthermore, although the Participation Agreement obligated JSCNI to pay Citibank’s and TPS’s Transaction Costs, whether or not Phase III came to fruition, JSCNI’s liability was limited to $100,000 total (here, $450,000 was spent), and JSCNI was given the opportunity to review and to approve submitted expenses from both Citibank and TPS (which did not occur here). Third, Citibank argues that the Commitment Letter — between only Citibank and TPS, not JSCNI — authorized the use of JSCNI’s security deposit to pay TPS, Citibank’s, and Santos’s expenses. The Commitment Letter contained a condition precedent that TPS pay all reasonable expenses (including attorney’s fees) of itself and Santos and all outstanding legal and other expenses of Citibank arising from the transaction. However, the Commitment Letter established only the obligation to pay; it did not establish from what source those payments would come. If the Equipment Lease and Guaranty Agreements (to which JSCNI was a direct or indirect party) did not authorize the use of this security deposit for such reimbursements at the time that it was used, then neither could the Corn-mitment Letter. We have already concluded that neither the Equipment Lease nor the Guaranty Agreements then authorized these disbursements in this manner. Moreover, regarding TPS’s reimbursement of itself and Santos, the Commitment Letter also provided that those expenses incurred and billed before financing’s closing were not payable until closing, ie., they were not payable at the time that Citibank advised TPS to pay them. Roberts confirmed that “it is customary for us to have the borrower pay for all the outstanding expenses incurred in that transaction at the time of dosing.” (Emphasis added.) A jury could have reasonably discredited Kermath’s testimony that he believed the $550,000 to be so useable because the Commitment Letter did not then allow it. The jury could have reasonably viewed this evidence as showing that Citibank advised TPS to use JSCNI’s funds in ways that the Phase III contracts did not then allow, despite Kermath’s representations to JSCNI that the funds would be treated as any other security deposit under the Phase III contracts. Accordingly, we reject Citibank’s argument that the Phase III contracts’ terms negate, as a matter of law, reasonable reliance by JSCNI that the $550,000 would be treated in the ways that Kermath represented. There is also some evidence that Ker-math’s statements were promises of future performance made with the intent, at the time that they were made, not to perform as promised, ie., there is evidence of scien-ter. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986) (“A promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving, and with no intention of performing the act.”). For example — only 12 days after Kermath sent the Commitment Letter, only two days after JSCNI sent the funds in response, and only three days before Kermath advised TPS to use the $550,000 to pay Citibank’s fees and to reimburse its important client Santos — Kermath was already advising by internal Citibank email that (1) part of the funds would be placed in Santos’s account, rather than in an Investment Account for the transaction, and (2) TPS would “give [Citibank] the check for the legal fees and retainer” very shortly thereafter. Kermath also testified at trial that if TPS — which he knew had a negative net worth at the time — spent the $550,000 before closing and did not replenish it, the financing could not close. There was also evidence that at the November 24 meeting at which TPS signed the Commitment Letter, Kermath indicated that a “change” to the $550,000 would need to occur and advised TPS how those funds should be used. A jury could reasonably have believed that these actions, which occurred very shortly after Kermath solicited the $550,000, reflected a prior intent to do other than was represented, with an intent that Citibank and its major client be reimbursed before any further risk attached. See id. at 434-35 (“While a party’s intent is determined at the time the party made the representation, it may be inferred from the party’s subsequent acts after the representation is made..... ‘Slight circumstantial evidence’ of fraud, when considered with the breach of promise to perform, is sufficient to support a finding of fraudulent intent.”). Furthermore, an email from Citibank’s internal credit documents — dated after the August 15 closing but before Kermath sent the Commitment Letter — explained that “John Kermath tells me the company [TPS] will earn a $1.8MM fee [the Transaction Fee] upon the [final] closing of the deal from [JSCNI] which is payable over 5 months.... ” This indicates that Kermath knew before he sent the Commitment Letter that the $550,000 would not form part of TPS’s Transaction Fee when it was paid. Finally, by internal Citibank memorandum dated September 19, 1997 (after the August 15 closing but before the Commitment Letter), Kermath advised that “[i]n light of the fact that the TPS transaction appears to be coming to fruition, we will reestablish a relationship with Manuel [Santos] via a $250,000 time [sic] deposit that will be rolled over on a periodic basis but will not be available for personal liquidity purposes.” Although nothing shows that JSCNI’s $550,000 was actually used to establish such an independent account for Santos — as opposed to the funds’ use to reimburse Santos for expenditures — Abji testified that Kermath advised TPS to use the $550,000 deposit to establish this account. A rational jury could view this as evidence of Kermath’s intent, before issuance of the Commitment Letter, to use the $550,000 to establish an account totally unrelated to the JSCNI transaction, for the benefit of an important client of Citibank’s. Given all of the circumstantial evidence of scienter, the jury could have reasonably discounted any of Abji’s, Karber’s, and Kermath’s testimony implying that the money was solicited without such intent. See id. at 434 (“Intent is a fact question uniquely within the realm of the trier of fact because it so depends upon the credibility of the witnesses and the weight to be given to their testimony.”). We overrule Citibank’s challenges under issues one and two to this theory of fraud liability. Having found legally sufficient evidence of one theory that will support fraud liability, we normally would not need to examine any other supporting theory. However, because the remaining two fraud theories require discussions relevant to claims or theories raised in JSCNI’s appeal, we discuss them briefly below. D. Kermath’s Statements That the Transaction Was Complete For this theory of fraud liability, we need examine only the element of justifiable reliance. JSCNI presented the following evidence to show reliance on Ker-math’s oral statements. At the August 15, 1997 closing, Kermath said, “You send that money and you — and the transaction will be funded within 30 days”; “now we are going to give you financing”; and “we’ve been working on it for four years, we want to close it, and we are finally done with it.” At a post-closing meeting in TPS’s offices, Kermath told Rafikov that “this is the final issue. You give me money. I give you whatever. I finance the project_” At the post-closing celebratory dinner the same night, Kermath congratulated everyone, indicated that he was satisfied with the transaction’s completion, and said things like “this time we finally ... did it” and “this is done and now the rest of the projects will just fall into place.” Trey Roberts, Citibank’s Team Leader in Investment Finance, testified that any statement on August 15, 1997 that the transaction was complete but for the $550,000 payment would have been untrue. However, it was undisputed that the later-issued November 5, 1997 Commitment Letter, which TPS signed as borrower, recited that financing (and thus the Phase III transaction) was conditional upon, among other things, 1. Citibank’s “completion of and satisfaction in all respects with our due diligence investigation,” which was described as “[d]ue diligence on the identity and corporate documents of all parties to the Participation Agreement”; 2. the “occurrence of the Trigger Date as defined in the Participation Agreement”; 3. payment by TPS “of all outstanding legal and other expenses incurred by [Citibank] in connection with the transaction”; 4. the absence of a material adverse change in the financial condition, operations, or prospect of TPS since its June 30, 1997 financial statements; and 5. Citibank’s “not becoming aware after the date of any information or other matter affecting [TPS] or the transactions inconsistent in a material and adverse manner with any such information or other matter disclosed to us prior to the date hereof.” It was undisputed that TPS faxed to Rafi-kov — and that Rafikov saw — the pages of the Commitment Letter containing these terms after Kermath’s August 17 statements and before JSCNI paid the $550,000 to Citibank. It was thus undisputed that Rafikov was advised, after Kermath’s oral statements, that the transaction was incomplete because contingencies existed— regardless of how likely they were to transpire or for what reason Citibank ultimately refused funding. For purposes of a fraud claim, a party cannot justifiably rely on a representation when that party has actual knowledge before its reliance of that representation’s falsity. See Mayes v. Stewart, 11 S.W.3d 440, 451 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (“Actual knowledge is inconsistent with the claim that the defrauded party has been deceived, and it negates the essential element of reliance upon the truth of the representation.”); see also Prospect High Income Fund v. Grant Thornton, L.L.P., 203 S.W.3d 602, 614 (Tex.App.-Dallas 2006, pet. granted) (holding that summary judgment was properly rendered on fraud claim because element of justifiable reliance was defeated by evidence that sophisticated third-party business plaintiffs knew, before purchasing certain bonds, that statements in audits were inaccurate). Accordingly, we hold that there was no evidence that JSCNI justifiably relied on Kermath’s oral representations that the transaction was complete. We thus hold that this theory of fraud cannot support the judgment. We sustain the challenge under Citibank’s issues one and two to this theory of fraud liability. E. Citibank’s Failure to Disclose Various Matters Relating to the $550,000 Payment The jury was instructed that fraud occurs when a. a party fails to disclose a material fact within the knowledge of that party, b. the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth, c. the party intends to induce the other party to take some action by failing to disclose the fact, and d. the other party suffers injury as a result of acting without knowledge of the undisclosed fact. The first element is triggered only if the defendant had a legal obligation to disclose the fact. See, e.g., Bradford v. Vento, 48 S.W.3d 749, 755 (Tex.2001). Whether a duty exists is a question of law. Id. Absent a formal or informal fiduciary or confidential relationship — which JSCNI expressly disavows on appeal as a basis for Citibank’s duty to disclose — a duty to speak may arise in the following situations: (1) one who voluntarily discloses information has a duty to disclose the whole truth; (2) one who makes a representation has a duty to disclose new information when he is aware that the new information makes the earlier representation misleading or untrue; and (3) one who makes a partial disclosure and conveys a false impression has a duty to correct it. Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 212-13 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). 1.The Parties’ Arguments Citibank argues that it disclosed the facts upon which JSCNI’s claim was based to TPS in the Commitment Letter and that it was TPS’s duty, as the borrower in Phase III and as JSCNI’s agent for communications for the Project, to convey this information to JSCNI. That is, Citibank contends that it had no duty to JSCNI. Citibank also notes that TPS sent a portion of the Commitment Letter to JSCNI, that JSCNI did not request a full copy of the Commitment Letter from Citibank when it saw that TPS had sent only three of five numbered pages, and that no evidence showed that Citibank attempted to conceal the Commitment Letter’s terms from JSCNI. Additionally, Citibank urges that there was no evidence that Citibank intended to deceive JSCNI when TPS sent only a partial copy of the Commitment Letter to JSCNI. JSCNI responds that Citibank’s duty to disclose arose because it failed to disclose the whole truth and to correct a false impression arising from a partial disclosure. Specifically, JSCNI contends 1. that “when Kermath represented that the Transaction was complete and solicited $550,000 from [JSCNI], he failed to disclose to [JSCNI]” that the loan had been reduced to $40 million; 2. that “given Citibank’s direct communications with [JSCNI] regarding the collateral requirements, Citibank had a duty to inform [JSCNI] that it would only advance funds equal to 96% of the value of cash on deposit with the bank”; 3. that “[b]ased upon Citibank’s direct representation to Neftegas that the transaction was complete,” Citibank had a duty to disclose to JSCNI that financing was subject to a satisfactory investigation of Peter Karber, individually, and TPS establishing a minimum net worth of $500,000; and 4. that “[g]iven Citibank’s representations that the security deposits would be used as collateral for the lease/loan payments and subject to the exclusive control of Citibank, Citibank had a duty to disclose that part of the $550,000 would be used to fund an investment account for Manuel Santos.” (Emphasis added.) 2. Discussion We agree that Citibank had no duty to disclose the terms of financing memorialized in the Commitment Letter directly to JSCNI. The jury found that Citibank was not JSCNI’s agent, but found that TPS was. Under the Phase III Equipment Lease Agreement, which JSCNI signed, TPS was authorized to obtain financing “on terms and subject to considerations acceptable to [TPS].” (Emphasis added.) Pursuant to that authority, and after the August 15, 1997 closing, TPS and Citibank reached the terms set out in the Commitment Letter. Citibank sent the entire Commitment Letter to TPS, which Kermath anticipated that TPS would forward to JSCNI. TPS then forwarded only part of the Commitment Letter to JSCNI. Rafikov, realizing that the Commitment Letter that TPS had sent was incomplete, asked TPS, its usual agent for communications with Citibank throughout the Project, for a complete copy. When TPS responded that the omitted pages did not concern JSCNI, Rafikov accepted that explanation and did not then ask Citibank for a complete copy. Kashu-ro agreed that the reason that he did not ask Citibank for a complete copy of the Commitment Letter was that in “the ordinary course of communication,” JSCNI corresponded with TPS, who had “its own dealings with.” The Commitment Letter contained all information that JSCNI contends that Citibank failed to divulge except for the revelation that the funds would be used to reimburse Santos. The record is devoid of evidence, direct or circumstantial, that Kermath knew that TPS sent JSCNI a truncated version of the Commitment Letter or that anyone at Citibank made any misleading statements to JSCNI about the terms memorialized in the Commitment Letter after Kermath had sent that letter to TPS. To hold Citibank liable after the Commitment Letter’s issuance to TPS would be to hold that it continued to have a duty to a non-elient, to which it had made misleading statements in a transaction, even after it had corrected those statements to the non-client’s designated agent for communications concerning the transaction. JSCNI cites no authority that would impose this kind of duty on Citibank in such circumstances, and we decline to recognize one here — especially when the parties to the transaction were sophisticated business people. We sustain Citibank’s challenge under issues one and two to this theory of fraud liability. JSCNI’S APPEAL By three issues, JSCNI argues that the trial court erred in granting Citibank’s motion for JNOV on its request for exemplary damages against Citibank and its claims against Citibank for knowing participation in TPS’s breach of fiduciary duty and civil conspiracy. “We review the grant or denial of a motion for judgment notwithstanding the verdict under a legal-sufficiency standard.” Whitney Nat’l Bank v. Baker, 122 S.W.3d 204, 207 (Tex.App.-Houston [1st Dist.] 2003, no pet.). “Generally, a JNOV can be rendered only when there is no evidence to support one or more of the jury’s findings that are necessary....” Triumph Trucking, Inc. v. S. Corporate Ins. Managers, Inc., 226 S.W.3d 466, 470 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). Knowing Participation in Breach of Fiduciary Duty In issue one, JSCNI argues that the trial court erred in disregarding the jury’s verdict against Citibank for knowing participation in TPS’s breach of fiduciary duty because legally sufficient evidence exists in support of the claim. ‘When a third party knowingly participates in the breach of a fiduciary duty, the third party becomes a joint tortfeasor and is liable as such.” Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 580 (Tex.App.-Dallas 2007, no pet.) (citing Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 574, 160 S.W.2d 509, 514 (1942)). A. The Pleadings, Charge, and Rulings JSCNI pleaded that TPS had breached its fiduciary duty to JSCNI. JSCNI also pleaded that Citibank had “knowingly participated in a breach of fiduciary duty by TPS to [JSCNI].” Although the trial court granted Citibank’s directed verdict on the knowing-participation claim, the court nonetheless submitted the claim to the jury: If the answer to Question No. 10 is “yes”, then answer the following Question. Otherwise do not answer