Full opinion text
MEMORANDUM OPINION Memorandum Opinion by Chief Justice VALDEZ. This appeal pertains to a substantial leak of diesel fuel from an underground storage system located at the Silver Spur Truck Stop in Pharr, Texas. By thirteen issues, appellant, Petroleum Solutions, Inc. (“PSI”), challenges the jury’s verdict in favor of appellees, Bill Head d/b/a Bill Head Enterprises (“Head”) and Titeflex, Inc., and sanctions issued by the trial court, which included the assessment of costs against PSI, the striking of PSI’s affirmative defenses, and a jury instruction that PSI destroyed, lost, or failed to produce material evidence, namely a flex connector that PSI asserted was the cause of the underlying leak. PSI further argues that: (1) it is entitled to judgment on Head’s breach of fiduciary duty, fraud, breach of contract, breach of warranty, and negligence claims; (2) it is entitled to judgment on Titeflex’s indemnity claims; (3) the trial court erred in failing to properly instruct the jury on overlapping damages; (4) Head is not entitled to attorney’s fees or pre-judgment interest; (5) the judgment improperly disregarded the jury’s proportionate responsibility finding; and (6) it is entitled to judgment on its claims against Head for payment to cleanup of the leak. We affirm, in part,- and reverse and remand, in part. I. BACKGROUND Head began his career as a truck driver and eventually began acquiring trucks to establish a trucking business. At the same time,- he worked part-time for a truck broker in Edinburg, Texas. Head desired to open his own trucking brokerage and truck stop. In 1991, Head purchased what was once known as The Ta-padera, which is located in Pharr, Texas. Head renamed the facility the Silver Spur Truck Stop. The facility included nineteen acres of land, a restaurant, an office, and three steel underground tanks and fuel dispensers. In 1996, Head added a motel to the truck stop. The facility was operated as a truck stop and as a brokerage center for trucks shipping products between Mexico and the United States. A. PSPs Installation of a New Underground Storage Tank System Shortly after purchasing the property, Head discovered that one of the steel underground tanks failed a required tightness test, which resulted in it being removed from service. Later, the Texas legislature passed a new law requiring that steel underground storage tanks be replaced or modified to protect against leaks. In response to the new law, in 1996, Head contracted with PSI to install a new fiberglass underground storage tank system. Head selected PSI to do the work because PSI was local and he had heard good things about the company. In fact, PSI is exclusively engaged in the business of installing, repairing, maintaining, and removing underground-storage-tank systems and compliance issues related to those systems, and as Mark Barron, the president of PSI and Environmental Risk Management (“ERM”), testified, PSI is a leader in this industry. PSI’s proposal to Head included the removal of the three steel tanks and the installation of two twenty-thousand-gallon, double-walled fiberglass tanks to be used to store diesel fuel. Though State regulations did not require that the tanks be double-walled, Head agreed to PSI’s proposal and work began. Acting on Head’s behalf, PSI filed a construction application with the Texas Natural Resource Conservation Commission (the “TNRCC”), now known as the Texas Commission on Environmental Quality. After receiving approvals from the TNRCC, PSI removed the old steel tanks and installed the new fiberglass tanks in a different area from where the steel tanks were previously installed. Barron testified that: First off, we installed the new underground storage tanks those two 20,000-gallon storage tanks. We then probably took their system out of service because we had to build new trenches to the existing dispensers to run new piping, which we did, and after we dug the tanks or installed the tanks, dug the trenches, installed the piping, modified the existing electrical to run to the new system, hook up the existing pumps that we moved from their old system to the new tanks, hooked all that up, backfilled, powered concrete, checked everything out, did testing on the tanks and the lines as it’s required, started to open business, then we moved the old system. That’s the whole project, basically. PSI completed construction on the new system in 1997. B. PSI’s Installation of a New Release Detection System According to Bill Morris, an inspector for PSI and a previous employee of the TNRCC, on December 22, 1998, the State enacted new regulations requiring improved release detection methods. Among the methods approved for usage by the State was an automatic tank gauging system (“ATG”), which reconciles fuel lost and added to the storage tanks to determine if a release has occurred. At the time, Head was using the stick method, gauging fuel in the underground storage tanks using long, calibrated measuring sticks. In response to the new regulation, PSI recommended that Head install a new ATG system. PSI told Head that the ATG system “was supposed to do all the work and should — should alert us whenever we had a leak.” Further, based on the advice of PSI, Head agreed to the installation of the ATG system. PSI completed the installation of the ATG system in October 1999. Because of the ATG system, Head discontinued using the stick method to monitor inventory levels. C. Problems With the Release Detection System Shortly after PSI installed the underground storage tank and ATG systems, Head began to experience many problems. Between 1997 and 2001, Head requested that PSI maintain and/or repair the system numerous times. Head testified that PSI’s systems caused him more problems than his old system and that PSI serviced the systems on a “[p]retty regular [basis].” Head recalled that the ATG system was usually the reason for the problems. Head authorized Robert Carpenter, the manager of the Silver Spur Truck Stop, to contact PSI whenever a problem arose with the systems. Carpenter recalled that PSI was the exclusive entity that maintained and repaired the systems. In late October 2001, Carpenter went on vacation. When he returned in early November 2001, Carpenter discovered additional problems with the underground storage tanks. Gilbert Obregon, a clerk at the Silver Spur Truck Stop, testified that, when reconciled each month, the ATG system always revealed an overage or shortage with respect to the amount of diesel fuel purchased and the amount of fuel in the storage tanks. Oddly, at the end of October, Obregon noticed that the ATG system reconciled 100 percent. Nevertheless, while Carpenter was on vacation, the inventory numbers became more volatile. Carpenter described the volatility as such: The numbers of the inventory didn’t match up, but it was taken off the ATG. They were bouncing back and forth within the time I was gone. One day we would have a minus fuel, and the next day a plus fuel, which would balance out, but as time progressed on, these numbers — it became evident that there was a potential problem on hand.[] As a result of his observations, Carpenter notified PSI. Head allowed PSI to investigate the systems to determine the extent and source of the perceived problem. D. The Leaking of Diesel Fuel In the course of its investigation, PSI discovered that a major release of diesel fuel had occurred. Experts estimated that more than 20,000 gallons of diesel fuel was recovered from underground. Barron acknowledged that the fuel had leaked “quite aways [sic]” from the Silver Spur Truck Stop, including a drainage ditch that bordered the property and that he had “no idea how much [diesel fuel] they lost.” Carpenter denied seeing any diesel fuel on the asphalt surrounding the truck stop; however, one of Head’s expert witnesses, Daniel Airey, an environmental consultant for Ranger Environmental Services (“Ranger”), stated that, based on a monitor well Ranger implemented on the northern side of the truck stop, diesel fuel leaked from 5.78 feet to 19.95 feet underground. Airey further noted that diesel fuel had leaked into the water table, which is located at 18.82 feet underground where the monitor well was placed. Upon discovering that a major leak had occurred, Barron traveled to the scene. Barron admitted that when he was told about the leak, he anticipated that PSI would be sued because PSI had installed the underground storage tank and ATG systems. E. PSI’s Determination of the Source of the Leak Several PSI employees investigated the underground storage tank system to determine the cause of the leak. PSI examined the double-walled fiberglass tanks, the system’s piping, and the dispensers. Barron testified that the tanks were subjected to two pressurized leak tests, both of which they passed. PSI then tried to test the system’s piping, but PSI could not “establish pressure on the piping.” Based on the inability of the system’s piping to establish pressure, PSI concluded that the leak must be located somewhere within the piping system. Later, Barron approached Carpenter and informed him that the source of the leak was a faulty flex connector located under “Dispenser Number 4.” Barron showed Carpenter the alleged faulty flex connector and allegedly told Carpenter the following: “I’m the vendor, I would like to take this part over to our location to our office and keep it for safekeeping and maybe testing at a later time.” Carpenter allowed Barron to take the allegedly faulty flex connector because he “didn’t really have a place to store it.” That was the last time Carpenter or Head ever saw the flex connector. At trial, Barron testified that he created handwritten notes about the. allegedly faulty flex connector when it was removed. He specifically recalled that the flex connector was manufactured by Titeflex; however, when asked whether he still had his notes from that day, Barron stated: “I don’t have the notes stating it [the flex connector] was actually Titeflex, no, sir.” Photographs of the alleged faulty flex connector were admitted at trial, and Barron admitted that none of the photographs indicated that the flex connector was indeed manufactured by Titeflex. The flex connector was never produced by PSI; instead, Barron asserted that PSI’s attorneys took the flex connector and then submitted the flex connector to PSI’s expert, David Hendrix. Once Head filed suit, Hendrix was unable to find the flex connector. In any event, PSI and ERM filed documents with the TNRCC on Head’s behalf. In the mandatory December 11, 2001 “Release Determination Report Form” that was prepared, PSI identified the flex connector as the sole source of the leak. PSI noted that the connector was replaced. Further, at the time the report was generated, PSI revealed that 14,843 gallons of diesel fuel had been recovered from the “tank cavity” and that 32,000 gallons of “water/diesel/mix” had been extracted from drainage ditches. Barron signed the report certifying that PSI was supervising all site investigation and repair activities in accordance with accepted industry standards. In addition to the TNRCC report, Morris created a chronology of the leak for the benefit of Barron. In his chronology, Morris noted that, among other things, on November 19, 2001, “[t]he source of the release has now been determined to be from the flex connector at dispenser #4. Both diesel tanks were tightness tested and passed.” Morris’s chronology was submitted as an attachment to the “Release Determination Report Form.” F. The TNRCC’s Response While PSI was examining the underground storage tank system to determine the cause of the leak, Head contracted with Barron’s other company, ERM, to begin the cleanup effort. Representatives of ERM informed the TNRCC of the release, and the TNRCC sent Boots & Coots, a company specializing in the cleanup of fuel spills, to assist. Carpenter stated at trial that he was present during the cleanup; that ERM appeared to lead the cleanup efforts; and that Boots & Coots employees reported to ERM. Shortly thereafter, the fire marshal and other companies specializing in remediation arrived at the scene to also assist in the cleanup. In addition to Boots & Coots, the TNRCC sent a representative, Paul Cor-dova, to investigate the leak. As part of his investigation, Cordova was required to determine the cause of the leak. Cordova testified that the flex connector was the cause of the leak though he admitted to never having seen the flex connector; instead, Cordova relied solely on Barron’s statements regarding the cause of the leak. Cordova also requested monthly inventory records for the truck stop, though Head was only able to quickly produce records for a couple months. Cordova testified that PSI provided most of the information about the truck stop to the TNRCC and that it appeared as if PSI was Head’s representative. Based on his investigation of the truck stop’s inventory records and the statements made by PSI, Cordova issued numerous citations to Head, with some of the violations not pertaining to the discharge of diesel fuel. The citations amounted to over $300,000 in fines assessed against Head; however, after negotiating -with the TNRCC and demonstrating compliance with numerous regulatory provisions, Head was able to reduce the fines to approximately $80,000, with half of the fines paid to a charity in the Rio Grande Valley that “dealt with providing water and sewer - services to poor communities.” Nevertheless, at the time of trial, Head still operated under a TNRCC enforcement order. G. Remediation of the Leak Through remediation efforts, approximately 22,000 gallons of diesel fuel were recovered from underground, drainage ditches, and other places. In addition, more than 39,000 gallons of groundwater was extracted because the water contained traces of diesel fuel. However, the remediation of the site was an ongoing endeavor. In December 2005, more than four years after the initial leak, Head hired Ranger Environmental Services (“Ranger”) to conduct a compliance audit and to ensure that Head’s paperwork regarding fuel inventory levels was being done correctly. At this time, Ranger was not performing any remediation work for Head. Instead, Ranger checked various monitors to ensure that the remediation efforts were in compliance with TNRCC regulations., Air-ey was in charge of the audit, and when he checked the monitors, he noticed that there was “[a] lot of diesel fuel in the ground.” Airey found that there was still about 10.5 feet of diesel fuel on the groundwater table. Airey testified that ERM and PSI were responsible for cleaning up the released diesel fuel at this time. Upon Airey’s discovery, Head hired Ranger to complete the clean-up of the leak. At the time of trial on this matter, in October 2008, the site has not been completely remediated, though the TNRCC remediation order remains in effect. Airey estimated that the total cost to complete the remediation to the satisfaction of the TNRCC would be $509,509. H. Alternative Theories About the Cause of the Leak and Titeflex’s Involvement Titeflex’s expert witness, Bruce W. Pinkston, Ph.D., estimated that the leak first occurred in March 2001, and continued consistently until discovered in November 2001. Dr. Pinkston opined that the leak was slow and probably constituted about five gallons per hour. One of Head’s expert witnesses, Sullivan Curran, a consultant and executive director of the Fiberglass Tank and Pump Institute, testified that the cause of the leak was PSI’s improper installation of a union at a shear valve, not the flex connector. Relying on the deposition testimony of Octavio Prune-da, a technician for PSI, Curran asserted that PSI improperly cross-threaded the union in question, which caused a small leak in the system. In fact, Pruneda replaced a galvanized union at one of-the dispensers after confirming the presence of a leak. Curran also testified that PSI had improperly designed the system using pipes that were too small in diameter for the ATG system to work properly. Cur-ran noted that PSI used two-inch pipes for the system when it should have used three-inch pipes. The system has a high-powered, five-horsepower pump that is used to push fuel from the tanks to the dispensers. Because the pipes were smaller than what industry standards require when integrated with a five-horsepower pump, the fuel pressure in the system was always high and never “dropped below ten PSI [pounds per square inch]” to allow for the ATG system to detect whether there was a leak in the system. Roy Rodriguez, PSI’s crew chief during the initial 2001 clean-up of the leak, testified that PSI dug up the system and tested the system’s flex hoses, which did not reveal any leaks. Rodriguez denied taking any portion of the system out of the ground for testing. Specifically, Rodriguez did not recall anyone removing a flex connector from the ground in November 2001, and he did not recall Barron being present at the truck stop in November 2001, testing the flex connector, or putting the flex connector in the back of his truck. Despite these allegations, PSI continually asserted that the flex connector was the cause of the leak. Barron testified that he was present at the truck stop during the initial stages of the investigation and clean-up in November 2001. Barron recalled removing the alleged faulty flex connector and placing it in the back of his truck so that it could be tested. The flex connector was never seen again; however, Barron made handwritten notes, took pictures of the flex connector, and repeatedly testified that the flex connector was manufactured by Titeflex, even though the original system plans did not call for a Titeflex flex connector to be implemented in the system. Furthermore, Barron repeatedly certified to the TNRCC that the cause of the leak was a Titeflex flex connector. I. The Lawsuits On February 13, 2006, Head filed suit against PSI for breach of warranty of fitness, breach of implied warranty of good and workmanlike services, negligence, and fraudulent concealment. Because the lawsuit was filed more than four years after the leak was discovered in November 2001, Head pleaded the discovery rule. On October 5, 2006, PSI filed a third-party action against Titeflex, claiming contribution and indemnity. PSI claimed that Titeflex had manufactured the faulty flex connector that caused the leak and subsequently went missing. PSI’s contribution claim was premised on a strict liability cause of action, and PSI claimed that all damages that Head may have sustained were attributable to the alleged faulty flex connector. Based on the allegations made by PSI in its third-party action, Head amended his original petition to include Titeflex as a defendant. Head specifically noted that “Titeflex is strictly liable for damages caused by the defective flex connector.” Shortly thereafter, Titeflex answered both PSI and Head’s third-party actions and asserted various affirmative defenses. In the meantime, PSI filed a counterclaim against Head on March 20, 2007, asserting that Head had breached numerous agreements by failing to pay PSI $57,527.49 for work and materials provided to the truck stop. Later, Titeflex filed a motion for summary judgment, urging that there was no evidence that the flex connector that PSI asserted was the cause of the leak had been manufactured by Titeflex. Essentially, Titeflex argued that there was no evidence whatsoever to show that it was at fault for the leak. The trial court set a date for the hearing on Titeflex’s motion for summary judgment; however, because both Head and PSI argued that they needed more time to conduct discovery, especially considering that the alleged faulty flex connector could not be found, the trial court continued the hearing. In its designation of expert witnesses filed on August 20, 2007, PSI identified one expert, Bastiaan E. Cornelissen, Ph.D., P.E., to opine that all the damages sustained as a result of the leak were attributable to the alleged faulty flex connector. However, after several notices were provided, Dr. Cornelissen never showed up for his deposition. Nevertheless, PSI continued to blame the leak on the flex connector that was purportedly manufactured by Titeflex. On January 4, 2008, Titeflex filed a motion for sanctions, alleging that PSI had spoliated evidence by failing to produce the alleged faulty flex connector. In its motion, Titeflex referenced deposition testimony provided by Barron, whereby he admitted that PSI tested several flex connectors incorporated into the system, removed the alleged faulty flex connector, and subsequently lost the allegedly faulty flex connector, thus making it impossible to determine if the flex connector was defective and whether Titeflex had indeed manufactured the part. Titeflex sought to exclude all evidence tending to show that any product manufactured or sold by Tite-flex was defective, and it requested an instruction to the jury on spoliation. Head also filed a motion for sanctions against PSI, arguing that PSI had intentionally destroyed crucial evidence, i.e., the alleged faulty flex connector. Head requested that the trial court consider the full range of sanctions, up to and including the striking of PSI’s pleadings and rendering a default judgment. PSI responded to both Titeflex and Head’s motions for sanctions by blaming Head’s delay in bringing suit and PSI’s engineering consulting firm and lab for the loss of the flex connector. PSI argued that it had made numerous efforts to recover the flex connector, even though more than six years had elapsed since the flex connector was allegedly removed from Head’s underground storage tank system. PSI further argued that it did .not deliberately destroy evidence; that it had not engaged in culpable or negligent conduct with respect to the flex connector; and that it did not have a duty to keep the flex connector once the limitations period expired. As a result, PSI did not believe that sanctions or a spoliation instruction was warranted. While Titeflex’s motion for summary judgment and the motions for sanctions were pending, Head non-suited all his claims against Titeflex on March 7, 2008, based on the lack of evidence demonstrating that Titeflex had manufactured the flex connector that PSI contended was the cause of the leak. PSI, however, continued to maintain its indemnity claims against Titeflex. PSI later filed its first amended answer, defenses, and cross-claim. In this filing, PSI generally denied all of Head’s claims; argued that Head was contributorily negligent in causing the leak; designated Titeflex, among others, as responsible third parties under chapter 82 of the civil practice and remedies code, see TEX. CIV. PRAC. & REM.CODE ANN. §§ 82.001-.008 (West 2011); and asserted.various affirmative defenses, including statute of limitations. In response, Titeflex filed a counterclaim against PSI, contending that it owed PSI no duty to indemnify. Titeflex further contended that PSI was an assembler of a finished product and that Titeflex was an innocent seller under chapter 82 of the civil practice and remedies code, see id.; thus, PSI was obligated to indemnify Tite-flex for “all past and future costs of court, reasonable expenses, and reasonable and necessary attorney’s fees which were expended in defense of this action and in prosecution of this demand for indemnity.” Titeflex also argued that there was no evidence indicating that a Titeflex flex connector was used in Head’s underground storage tank system. Titeflex also re-urged its request for sanctions against PSI. Head, meanwhile, amended his petition several times. In his sixth amended petition, his live pleading, Head asserted claims against PSI for breach of implied warranty of good and workmanlike services, negligence, fraud, breach of fiduciary duty, fraudulent concealment, and breach of contract. Head also alleged that PSI was strictly liable for the defective ATG system, which “did not work at the system’s required capacity.” Head requested damages for: (1) remediation;. (2) TNRCC fines and penalties; (3) lost revenues as a result of the lines being shut down due to system failures; (4) the cost of replacing the failed system; and (5) the cost of replacing the 20,000 gallons of lost diesel fuel at $1.50 per gallon. In addition, Head asked for attorney’s fees and uncapped punitive damages against PSI for allegedly “us[ing] workers who were not qualified for [the] work that was performed, regularly falsifying] work description sheets and intentionally covering] up the real causes of the leak and resulting damages.” Head further alleged that PSI violated section 32.46 of the Texas Penal Code for securing the execution of documents by deception. See TEX. PENAL CODE ANN. § 32.46 (West Supp.2010). With respect to section 32.46 of the penal code, Head argued that PSI: (1) induced Carpenter to sign documents that were sent to the TNRCC, which falsely stated that the flex connector was the sole cause of the leak; and (2) withheld documents and evidence from the TNRCC and Head to cover up the true causes of the leak. In response to PSI’s limitations defense, Head asserted that his causes of action were tolled by the discovery rule. On August 12, 2008, PSI non-suited its claims against Titeflex. However, Titeflex continued to seek costs associated with the matter pursuant to Texas Rule of Civil Procedure 162. See TEX.R. CIV. P. 162. Shortly before trial commenced, the trial court conducted a hearing on the pending motions for sanctions. After hearing arguments from all parties, the trial court struck PSI’s affirmative defenses, including its limitations defense, and ruled that a spoliation instruction would be given to the jury. The parties’ request for attorney’s fees was carried to the end of the trial. The trial court also denied various motions that PSI had filed, including a motion to strike Head’s third, fourth, fifth, and sixth amended petitions, and a motion to dismiss or sever Titeflex’s counterclaims. In October 2008, this matter proceeded to trial, which ultimately lasted for seven weeks. At the conclusion of the evidence, the jury found in favor of Head and Tite-flex. In particular, the jury ruled in favor of Head’s negligence, breach of contract, fraud, breach of warranty, and breach of fiduciary duty claims. With respect to Titeflex, the jury concluded that PSI was a manufacturer; that Titeflex was an innocent seller within the context of chapter 82 of the civil practice and remedies code; and that Titeflex was entitled to indemnity from PSI, thus allowing for the recovery of costs, expenses, and attorney’s fees associated with the trial of this matter. Head elected to recover on the theories of breach of contract, breach of implied warranty, fraud, and breach of fiduciary duty. Head was awarded: (1) $818,142.38 in actual damages and $283,178.88 in pre-judgment interest for a sum total of $1,131,321.26; and (2) $91,500 in attorney’s fees. Titeflex was awarded: (1) $382,334 in attorney’s fees and $68,519.62 in expenses for a sum total of $450,853.62; and (2) $12,393.55 in court costs. The jury also concluded that Head breached agreements with PSI for materials and services provided for the clean-up of the truck stop; however, according to the jury, Head was excused from complying with the agreements. The trial court signed the final judgment based on the jury’s findings on January 13, 2009. Various post-judgment motions were filed, including motions for judgment non-obstante veredicto, to disregard the jury’s findings, for a new trial, to modify the judgment, and for remittitur. Each of these motions was denied by the trial court. PSI timely filed its notice of appeal on April 9, 2009. See TEX.R.APP. P. 26.1(a). On April 28, 2009, PSI filed a supersedeas bond in the registry of the trial court in the amount of $1,037,737, or fifty percent of PSI’s net worth as expressed by Barron. See id. at R. 24.2(a)(1)(A); see also TEX. CIV. PRAC. & REM.CODE ANN. § 52.006(b)(1) (West 2008). This appeal followed. II. THE TRIAL COURT’S SANCTIONS By its first issue, PSI challenges the trial court’s imposition of sanctions. PSI characterizes the trial court’s sanctions as death penalty sanctions and specifically argues that they violate the test set forth in TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913 (Tex.1991). PSI contends that there is no relationship between the conduct, the offender, and the sanction and that the sanctions were excessive. Head responds that the trial court’s sanctions do not violate the Trans-American standard because there is a relationship between PSI’s conduct and the sanction imposed and because the sanctions were not excessive. Specific as to the trial court’s spoliation instruction, PSI argues that it had no duty to retain the flex connector longer than the applicable limitations period; that the loss of the flex connector did not cause any prejudice;' and that the instruction “nudged the jury against PSI.” Head counters by arguing that PSI had a duty to preserve the flex connector because PSI knew that a lawsuit would likely arise from the incident and that the flex connector was a key piece of evidence. He asserts that PSI’s failure to preserve the flex connector prejudiced Head “because he was unable to determine with certainty liability, causation[,] and fault.” A. Standard of Review and Applicable Law We review a trial court’s imposition of sanctions under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.2004). A trial court abuses its discretion when its ruling is arbitrary and unreasonable and without reference to any guiding rules and principles. Id. at 838-39. In conducting our review, we are not limited to a review of the “sufficiency of the evidence” to support the trial court’s findings; rather, we make an independent inquiry of the entire record to determine if the trial court abused its discretion by imposing the sanction, Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (op. on reh’g). Thus, we are not limited to considering only the specific violation committed; we may consider other matters that have occurred during the litigation. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985); see Hartford Acc. & Indem. Co. v. Abascal, 831 S.W.2d 559, 561 (Tex.App.-San Antonio 1992, orig. proceeding). Rule of civil procedure 215.2 allows a trial court to enter “just” sanctions for a party’s failure to comply with a discovery order or request. TEX.R. CIV. P. 215.2; see Cire, 134 S.W.3d at 839; Response Time, Inc. v. Sterling Commerce (N. Am.), Inc., 95 S.W.3d 656, 660 (Tex.App.-Dallas 2002, no pet.). Among the prescribed sanctions contained in rule 215.2 are: (1) an order charging expenses for discovery and court costs; and (2) the striking of pleadings and defenses. TEX.R. CIV. P. 215.2(b)(2), (b)(4)-(5). Any sanction that adjudicates a claim or precludes the presentation of the merits of the case constitutes a “death penalty” sanction. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 845 (Tex.1992); see also De Los Santos v. Johnson, No. 18-07-00502-CV, 2008 WL 3971455, at *3, 2008 Tex.App. LEXIS 6841, at *8 (Tex.App.-Corpus Christi Aug. 28, 2008, pet. denied) (mem. op.); In re Fina Oil & Chem. Co., No. 13-98-00640-CV, 1999 WL 33589153, at *12-13, 1999 Tex.App. LEXIS 1751, at **36-37 (Tex. App.-Corpus Christi Mar. 11, 1999, orig. proceeding) (not designated for publication) (noting that the striking of a party’s affirmative defense as a sanction precludes the defendant from going to trial on the merits of that defense and, thus, should be tested according to the standards -applied to the striking of any other pleading). The Supreme Court of Texas in TransAmerican developed a two-part test for courts to apply when determining whether a sanction is “just.” 811 S.W.2d at 917. First, there must be a direct nexus among the offensive conduct, the offender, and the sanction imposed. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex.2003) (citing TransAmerican, 811 S.W.2d at 917). A “just” sanction must be directed against the abuse and toward remedying the prejudice caused to the innocent party, and the sanction should be visited upon the offender. Id. Second, “just” sanctions must not be excessive. TransAmerican, 811 S.W.2d at 917. That is, a sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes, which includes securing compliance with discovery rules, deterring other litigants from similar misconduct, and punishing violators. Id.; see Spohn Hosp., 104 S.W.3d at 882; Blackmon, 841 S.W.2d at 849. For this reason, the supreme court requires courts to consider less stringent sanctions and whether such lesser sanctions would fully promote compliance. TransAmerican, 811 S.W.2d at 917; see Cire, 134 S.W.3d at 839; Spohn Hosp., 104 S.W.3d at 882. Discovery sanctions cannot be used to adjudicate the merits of a party’s claims or defenses, unless a party’s hindrance of the discovery process justifies a presumption that the party’s claims or defenses lack merit. TransAmerican, 811 S.W.2d at 918. However, if a party refuses to produce material evidence, despite the imposition of lesser sanctions, the trial court may presume that the asserted claim or defense lacks merit and dispose of it. Id. Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party’s flagrant bad faith or a party’s callous disregard for the responsibilities of discovery under the rules. Id. (citing Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642-43, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam)). A “hearing on the motion for sanctions [is] akin to a nonjury trial,” in which “the trial court is the judge of the credibility of the witnesses and of the weight to be given their testimony, since the judge has the opportunity to observe the demeanor of the witnesses on the stand and may believe all, none, or part of the witnesses’ testimony.” “In determining whether a trial court has abused its discretion [in a sanctions appeal], we are required to view the evidence in the light most favorable to the trial court’s action and to indulge every legal presumption in favor of the judgment.” Vaughn v. Tex. Employment Comm’n, 792 S.W.2d 139, 143 (Tex.App.-Houston [1st Dist.] 1990, no writ) (citing Parks v. U.S. Home Corp., 652 S.W.2d 479, 485 (Tex.App.-Houston [1st Dist.] 1983, writ dism’d)). Further, reasonable “inferences may be drawn from actual facts proved” by the trier of the facts. Beazley v. McEver, 238 S.W. 949, 952 (Tex.Civ.App.-Dallas 1922, no writ). B. The Trial Court’s Spoliation Instruction “A spoliation instruction is an instruction given to the jury outlining permissible inferences they may make against a party who has lost, altered, or destroyed evidence.” Tex. Elec. Coop. v. Dillard, 171 S.W.3d 201, 208 (Tex.App.-Tyler 2005, no pet.) (citing Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex.App.-Fort Worth 1993, writ denied)). The use of a spoliation instruction is generally limited to two circumstances: (1) the deliberate destruction of relevant evidence; and (2) the failure of a party to produce relevant evidence or to explain its non-production. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex.2003) (citing Anderson v. Taylor Publ’g Co., 13 S.W.3d 56, 61 (Tex.App.-Dallas 2000, pet. denied)). Under the first circumstance, a party who has deliberately destroyed evidence is presumed to have done so because the evidence was unfavorable to its case. Id. at 721-22 (citing Williford Energy Co. v. Submergible Cable Servs., Inc., 895 S.W.2d 379, 389-90 (Tex.App.-Amarillo 1994, no writ); Brewer, 862 S.W.2d at 159). Under the second circumstance, the presumption arises because the party controlling the missing evidence cannot explain its failure to produce it. Id. at 722 (citing Watson v. Brazos Elec. Power Coop., Inc., 918 S.W.2d 639, 643 (Tex.App.-Waco 1996, writ denied)). “The presumption does not apply when documents are merely lost.” Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 227 (Tex.App.-Amarillo 2003, no pet.) (citing Williford Energy Co., 895 S.W.2d at 389-90); Brewer, 862 S.W.2d at 160. A trial court may be guided by the following three factors in determining whether a spoliation presumption is justified: (1) whether there was a duty to preserve evidence; (2) whether the alleged spoliator either negligently or intentionally spoliated evidence; and (3) whether the spoliation prejudiced the nonspoliator’s ability to present its case or defense. Trevino v. Ortega, 969 S.W.2d 950, 954-55 (Tex.1998) (Baker, J., concurring); Whirlpool Corp. v. Camacho, 251 S.W.3d 88, 102 (Tex.App.-Corpus Christi 2008), rev'd an other grounds, 298 S.W.3d 631 (Tex.2009). Before any failure to produce material evidence may be viewed as discovery abuse, the opposing party must establish that the non-producing party had a duty to preserve the evidence in question. Dillard, 171 S.W.3d at 209 (citing Johnson, 106 S.W.3d at 722). There must be a sufficient foundational showing that the party who destroyed the evidence had notice both of the potential claim and of the evidence’s potential relevance thereto. Id. (citing Johnson, 106 S.W.3d at 722). An objective test for anticipation of litigation is whether a reasonable person would conclude from the severity of the accident and other circumstances surrounding it that there was a substantial chance for litigation. Id. (citing Johnson, 106 S.W.3d at 722). “A party should not be able to subvert the discovery process and the fair administration of justice simply by destroying evidence before a claim is actually filed.” See Trevino, 969 S.W.2d at 955 (Baker, J., concurring). In this case, the trial court included the following spoliation instruction in the charge: You, the jury, are instructed that Petroleum Solutions, Inc. destroyed, lost, or failed to produce to this Court material evidence that by law should have been produced as evidence for your deliberations. You are further instructed you may, but are not required to presume this evidence is unfavorable to Petroleum Solutions, Inc. PSI argues, that it did not have a duty to preserve evidence ad infinitum. Specifically, PSI contends that it did not have to preserve the flex connector past November 2005, the date in which PSI asserts the limitations period expired. PSI’s argument, however, is belied by Barron’s testimony and Neally’s affidavit. In his testimony, Barron stated that the flex connector was the cause of the leak and that it was removed from the underground storage tank system by PSI employees and placed in the back of Barron’s pickup truck in November 2001. Moreover, Barron admitted that he anticipated that he would be sued for the leak when he arrived at the scene of the November 2001 incident. Carpenter consented to Barron removing the flex connector from the premises for safekeeping and possible testing. Neally averred that Barron gave the flex connector to her in February 2002. She then sent the flex connector to Hendrix, PSI’s expert, for testing. Hendrix examined the flex connector and sent PSI a bill for the examination in September 2002. The flex connector was never returned, and PSI alleges that it was unable to contact Hendrix to instruct him to return the flex connector. Based on Barron and Neally’s statements alone, it is clear that since February 2002, PSI failed to preserve the flex connector. Even if we were to accept PSI’s argument that it only had a duty to preserve the flex connector until November 2005, the evidence is clear that PSI had not done so since turning the flex connector over to one of its agents, Neally, in February 2002.. Moreover, although PSI argues that the flex connector was lost, a reasonable person could conclude that PSI failed to preserve the evidence given the fact that Hendrix conducted an examination of the flex connector and demanded payment for the examination, yet failed to preserve the evidence once the examination was complete. The foregoing undermines any argument that the flex connector was merely lost. Barron testified and PSI represented throughout the litigation of this case that the cause of the leak was the flex connector. For the majority of the litigation, PSI represented that the flex connector was manufactured by Titeflex. PSI’s failure to preserve the flex connector significantly prejudiced both Head and Titeflex. Head was unable to determine with certainty liability, causation, and fault for the enormous leak of diesel fuel. Head was forced to rely solely on PSI’s determination of the cause of the leak, the licensed contractor who originally installed the underground storage tank and ATG systems and whose president anticipated being sued once the leak was discovered. Head was precluded from obtaining a second opinion about the cause of the leak from another licensed contractor and was induced to file suit against Titeflex because of PSI’s allegations. Cordova testified that it would have been a violation of state regulations if Head had independently conducted an investigation of the underground storage tank system without the assistance of a licensed contractor like PSI. Thus, Head was at PSI’s mercy. Titeflex was also prejudiced by PSPs failure to preserve the flex connector because the part itself was the basis of Tite-flex’s liability. Barron testified that he created handwritten notes stating that the flex connector was manufactured by Tite-flex, yet he failed to produce those notes. In addition, Barron’s photographs of the flex connector failed to demonstrate that the flex connector had indeed been manufactured by Titeflex. Had Head and Tite-flex been given the opportunity to examine the flex connector, they likely would have been able to easily determine whether Ti-teflex was the manufacturer of the part and whether the part was defective. Moreover, had PSI produced the flex connector, it is very likely that Titeflex would not have been involved in this lawsuit from the beginning. Essentially, the flex connector was a key piece of evidence to both Head and Titeflex, and PSI’s failure to produce the part prejudiced both parties significantly. Based on the foregoing, we conclude that a reasonable person would have deduced from the severity of the 20,000-gallon diesel fuel leak and other circumstances surrounding the leak that there was a substantial chance for litigation, especially considering Barron admitted as much at trial. See Johnson, 106 S.W.3d at 722; see also Dillard, 171 S.W.3d at 209. Further, because the flex connector was a central piece of evidence in determining the actual cause of the leak and who was at fault, it was reasonable to conclude that PSI was on notice of its potential relevance. See Johnson, 106 S.W.3d at 722; see also Dillard, 171 S.W.3d at 209. We further conclude that Head and Titeflex both demonstrated that they were significantly prejudiced by PSPs failure to produce the flex connector. In any event, PSI blames its attorneys, insurance company, and Hendrix for its inability to produce the flex connector. A spoliator can defend against an assertion of negligent or intentional destruction by providing other explanations for the destruction. For example, if the destruction of the evidence was beyond the spoliator’s control or done in the ordinary course of business, the court may find that the spoliator did not violate a duty to preserve evidence. Importantly though, when a party’s duty to preserve evidence arises before the destruction or when a policy is at odds with a duty to maintain records, the policy will not excuse the obligation to preserve evidence. Trevino, 969 S.W.2d at 957 (Baker, J., concurring) (emphasis added). As we have explained above, PSI had a duty to preserve the flex connector. The fact that PSI was not requested to produce the flex connector until several years later when the. lawsuit was filed is inconsequential because the evidence establishes that the part was missing since February 2002, which was well within the governing limitations period. See id. C. The Trial Court’s Striking of PSI’s Affirmative Defenses With regard to the trial court’s striking of PSI’s affirmative defenses, PSI asserts that the sanctions violate the TransAmerican standard and are excessive. First, PSI states that the trial court failed to articulate a connection between the alleged spoliation — the failure to produce the alleged faulty flex connector— and the striking of PSI’s affirmative defenses. In support of this statement, PSI, once again, suggests that it did not have a duty to preserve the evidence once the limitations period expired while citing to our opinion in Thomas v. State, 226 S.W.3d 697, 710 (Tex.App.-Corpus Christi 2007, pet. dism’d) (stating that “the primary purpose of a statute of limitations — ensuring that a defendant is placed on notice of claims within a reasonable time, when evidence and witnesses are available ...”). However, as we have previously concluded, PSI had a duty to preserve the alleged faulty flex connector and PSPs argument is belied by the fact that the part has been lost since February 2002, a date which was clearly within the limitations period that PSI argues applies. PSI withheld the production of evidence that was crucial to this case and engaged in numerous actions, as we detail later, designed to minimize its fault in this matter. In addition, PSI moved for summary judgment based upon limitations, even though liability in this case centered on PSI’s explanation for the cause of the leak — the alleged faulty flex connector — and PSI failed to produce the part. Second, PSI contends that it should not be punished because its expert lost the flex connector. See In re Barnes, 956 S.W.2d 746, 748 (Tex.App.-Corpus Christi 1997, orig. proceeding) (“Respondent’s order extinguished Relators’ lawsuit because their counsel did not file verified responses to interrogatories when he had represented to Respondent and opposing counsel that the verifications would be forthcoming. This order had the effect of punishing Relators for the conduct of their counsel - There was no evidence ... that Relators themselves were doing anything to thwart the discovery process.”); see also Richmond Condos, v. Skipworth Commercial Plumbing, Inc., 245 S.W.3d 646, 662 (Tex.App.-Fort Worth 2008, pet. denied) (holding that, based on the facts in the case, a sanction against the client “would be unfair and improper because it would have punished [defendant] for a transgression that it did not commit and for which it bore no responsibility”). With regard to this contention, we first note that the Skipworth Commercial Plumbing court, citing to TransAmerican, stated that “a lawyer cannot shield his client from sanctions; a party must bear some responsibility for its counsel’s discovery abuses when it is or should be aware of counsel’s conduct and the violation of discovery rules.” 245 S.W.3d at 661 (citing TransAmerican, 811 S.W.2d at 917). Therefore, we disagree with PSI’s intimation that the actions of its lawyers in having the flex connector tested shielded PSI from all sanctions. The record reflects that Barron was aware of the fact that Neally gave the flex connector to Hendrix for testing and that Hendrix was unable to produce the flex connector since February 2002. Therefore, PSI cannot credibly assert that it was unaware of the non-production of the flex connector and simply place blame at the feet of its lawyers. Next, and perhaps more importantly, we note that in considering the propriety of a trial court’s sanctions, we are not limited to only considering the specific violation committed; we may consider other matters that occurred during the litigation. See Downer, 701 S.W.2d at 241; see also Abascal, 831 S.W.2d at 561. PSI has engaged in repeated attempts to minimize its fault in this matter, as evidenced by: (1) PSI sending Morris to instruct Obregon to re-create inventory records using misleading calculations to show that Head was not diligent in detecting the leak; (2) Barron testifying that he removed the alleged faulty flex connector from the premises, while Rodriguez, the crew-chief, denying that he saw Barron do such a thing; (3) blaming the cause of the leak on Titeflex, the alleged manufacturer of the flex connector, even though no evidence existed to implicate Titeflex; and (4) Cornelissen failing to attend his deposition when he was the sole expert designated to opine that the cause of the leak was the flex connector. We believe that PSI engaged in these actions because Barron anticipated being sued once he was informed about the leak. Given these actions, we cannot say that the trial court abused its discretion in concluding that PSI, rather than its lawyers, should be sanctioned. See Mayer, 104 S.W.3d at 882 (noting that a “just” sanction should be designed to remedy the prejudice caused to the innocent party and visited upon the offender). Moreover, based on this evidence, we believe that there is a direct relationship between the striking of PSI’s affirmative defense and PSI’s numerous deceptions in this case. See TransAmerican, 811 S.W.2d at 917. Finally, PSI asserts that the sanctions imposed were excessive when considering that a spoliation instruction was also given and that the trial court should have considered lesser sanctions. PSI is correct in stating that the supreme court requires that a trial court consider less stringent measures before settling on severe sanctions. See Mayer, 104 S.W.3d at 883 (citing TransAmerican, 811 S.W.2d at 917). However, “[c]ase determinative sanctions may be imposed in the first instance only in exceptional cases when they are clearly justified and it is fully apparent that no lesser sanctions would promote compliance with the rules.” GTE Comm’cns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex.1993) (orig. proceeding); TransAmerican, 811 S.W.2d at 919; see In re Zenergy, Inc., 968 S.W.2d 1, 9 (Tex.App.-Corpus Christi 1997, orig. proceeding); Marshall v. Ryder Sys., Inc., 928 S.W.2d 190, 197 (Tex.App.-Houston [14th Dist.] 1996, writ denied). In fact, “[sanctions which are so severe that they preclude presentation on the merits should not be assessed absent a party’s bad faith or counsel’s flagrant disregard for the responsibilities of discovery under the rules.” In re Zenergy, Inc., 968 S.W.2d at 9; see Blackmon, 841 S.W.2dat 849. Ultimately, as described by the TransAmerican court, “[t]he punishment should fit the crime.” 811 S.W.2d at 917. Based on the aforementioned acts engaged in by PSI, we do not believe that the imposition of lesser sanctions would have promoted compliance with the discovery rules. See Tanner, 856 S.W.2d at 729; TransAmerican, 811 S.W.2d at 919; In re Zenergy, Inc., 968 S.W.2d at 9; Marshall, 928 S.W.2d at 197. In fact, to date, PSI cannot produce the flex connector which it alleges is the cause of the leak, and PSI has not adequately explained what lesser sanctions could have been imposed to promote compliance. Considering all of the circumstances in this case, we conclude that the trial court was justified in concluding that PSI’s actions amounted to bad faith and warranted the imposition of more severe sanctions. See Blackmon, 841 S.W.2d at 849; In re Zenergy, Inc., 968 S.W.2d at 9; see also Downer, 701 S.W.2d at 241; Abascal, 881 S.W.2d at 561. Furthermore, considering all of the evidence in the light most favorablé to the trial court’s judgment, we cannot say that the trial court abused its discretion in imposing sanctions and in issuing the spoliation instruction. See Cire, 134 S.W.3d at 838; Trevino, 969 S.W.2d at 953 (stating that trial courts have broad discretion to sanction for evidence spoliation, including the imposition of death penalty sanctions); Daniel, 981 S.W.2d at 234; see also Vaughn, 792 S.W.2d at 143; Parks, 652 S.W.2d at 485. In essence, we conclude that the sanctions imposed and the spoliation instruction given by the trial court “fit the crime” and were not excessive. See TransAmerican, 811 S.W.2d at 917. The dissent states that the trial court’s sanction of striking PSI’s affirmative defenses was so severe as to violate the TransAmerican standard. See id. However, we note that the trial court’s sanctions did not preclude PSI from challenging liability on Head’s claims by presenting witnesses and evidence in support thereof. Despite the sanctions, Head was still required to prove his causes of actions at trial. Thus, this was not an instance where the trial court struck all of the pleadings of the spoliator, including the spoliator’s answer, and conducted a trial solely on damages. As such, we believe that the sanctions imposed were of a lesser nature than those that could have been imposed. See id. at 918; see also TEX.R. CIV. P. 215.2(b)(5) (allowing the trial court to strike pleadings or parts thereof, dismiss actions with or without prejudice, or render a default judgment for discovery abuses). Therefore, based on the foregoing, we overrule PSI’s first issue. III. LIMITATIONS In its second issue, PSI argues that Head’s claims were barred by limitations. Specifically, PSI argues that Head’s claims accrued when the leak first occurred, and that the discovery rule and fraudulent concealment doctrine do not apply or do not serve to toll the limitations period such that Head’s lawsuit was timely. Head counters that PSI’s limitations defense was properly struck as a sanction and because limitations must be pleaded and proved, PSI is not entitled to a judgment on its limitations affirmative defense. The statute of limitations is an affirmative defense. Tex.R. Civ. P. 94; Fontenot Petro-Chem. & Mar. Servs., Inc. v. LaBono, 993 S.W.2d 455, 458 (Tex.App.-Corpus Christi 1999, pet. denied) (citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988)). It is the defendant’s burden to plead and prove its statute of limitations affirmative defense, otherwise it is waived. See LaBono, 993 S.W.2d at 458; Tuttlebee v. Tuttlebee, 702 S.W.2d 253, 256 (Tex.App.-Corpus Christi 1985, no writ); see also Devlin-Weinheimer v. Weinheimer, No. 13-08-00546-CV, 2009 WL 4432713, at *5, 2009 Tex.App. LEXIS 9258, at **13-14 (Tex.App.-Corpus Christi Dec. 3, 2009, pet. denied) (mem. op.). PSI pleaded its limitations affirmative defense; however, the trial court struck this defense, among others, in its sanctions order. Because the trial court struck PSI’s limitations defense and because we have concluded that the trial court did not abuse its discretion in issuing its sanctions order, PSI did not plead and prove its affirmative defense of limitations. See LaBono; 993 S.W.2d at 458; Tuttlebee, 702 S.W.2d at 256; see also Weinheimer, 2009 WL 4432713, at *5, 2009 Tex.App. LEXIS 9258, at **13-14. Moreover, this Court has held “that a mere general denial will not place in issue the affirmative defense of limitations which must, pursuant to Rule 94 [of the Texas Rules of Civil Procedure], be specially pleaded.” Wynn v. Wynn, 587 S.W.2d 790, 792 (Tex.Civ.App.-Corpus Christi 1979, no writ). Accordingly, we overrule PSI’s second issue. IV. HEAD’S CAUSES OF ACTION By its third through seventh issues, PSI argues that the evidence supporting the jury’s verdict as to Head’s causes of action is insufficient. A. Standard of Review An appellate court will sustain a legal sufficiency or “no-evidence” challenge if the record shows: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). In conducting a legal sufficiency review, we must consider the evidence in the light most favorable to the jury’s verdict and indulge every reasonable inference that supports it. Id. at 821-22; Harris County v. Vernagallo, 181 S.W.3d 17, 24 (Tex.App.-Houston [14th Dist.] 2005, no pet.); Prairie View A & M Univ. v. Brooks, 180 S.W.3d 694, 705 (Tex.App.Houston [14th Dist.] 2005, no pet.). The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review. See City of Keller, 168 S.W.3d at 827-28; Vernagallo, 181 S.W.3d at 24; Brooks, 180 S.W.3d at 705. We must credit favorable evidence if a reasonable trier of fact could have, and disregard contrary evidence unless a reasonable trier of fact could not have. Ingram v. Deere, 288 S.W.3d 886, 893 (Tex.2009); Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.2008); City of Keller, 168 S.W.3d at 827. The trier of fact is the sole judge of the witnesses’ credibility and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819; Vernagallo, 181 S.W.3d at 24; Brooks, 180 S.W.3d at 705. Moreover, in reviewing the sufficiency of the evidence, we may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998); see also Scoggins Constr. Co. v. Dealers Elec. Supply Co., No. 13-06-00368-CV, 2009 WL 3390324, at *3, 2009 Tex.App. LEXIS 8171, at *9 (Tex.App.-Corpus Christi Oct. 22, 2009, pet. denied) (mem. op. on remand). In reviewing the factual sufficiency of the evidence, we consider and weigh all of the evidence in the case and set aside the verdict and remand the cause for a new trial if we conclude, viewing the evidence in a neutral light, that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of whether the record contains some “evidence of probative force” in support of the verdict. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex.2003); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict. Jackson, 116 S.W.3d at 761-62. If we determine that the evidence supporting the jury’s verdict is not supported by factually sufficient evidence, we must “detail the evidence relevant to the issue” and “state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (per curiam). In the context of a jury trial, the sufficiency of the evidence is reviewed in the light of the charge submitted if no objection is made to the charge. Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 221 (Tex.2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex.2001). Here, although PSI expressed many concerns with the jury charge, it appears from the record that the concerns were resolved in PSI’s favor in the charge given to the jury, and the trial court, therefore, ever ruled on its objections, if any. Thus, we review the evidence under the law as set out in the jury charge. See Romero, 166 S.W.3d at 221; see also Sturges, 52 S.W.3d at 715. B. Breach of Fiduciary Duty In its third issue, PSI argues that there is no evidence that PSI agreed to be subject to Head’s control; that there is no evidence that Head controlled the details of PSI’s work; that it did not owe general fiduciary duties to Head; and that Head failed to prove damages sustained as the result of the alleged breach of fiduciary duty. Essentially, PSI attacks all three elements of Head’s breach of fiduciary duty