                                    NUMBER 13-09-00399-CV

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


STEVE A. CLAYTON, MELODY JANE
CLAYTON, TEXAS INDUSTRIAL PIPING
SERVICE, LTD., AND MASTEC
BLASTING AND PAINTING, LTD.,                                                                   Appellants,

                                                       v.

BOB PARKER,                                                                                       Appellee.


                        On appeal from the 136th District Court
                             of Jefferson County, Texas.


                               MEMORANDUM OPINION 1

                   Before Justices Yañez, Rodriguez, and Garza
                    Memorandum Opinion by Justice Rodriguez


        1
          All issues of law presented in this case are well settled, and the parties are fam iliar with the facts.
Therefore, we will not recite the law or the facts in this m em orandum opinion, except as necessary to advise
the parties of the Court's decision and the basic reasons for it. See T EX . R. A PP . P. 47.4.
        Appellee Bob Parker filed suit against appellants Steve A. Clayton, Melody Jane

Clayton, Texas Industrial Piping Service, Ltd. (T.I.P.S.), and Mastec Blasting and Painting,

Ltd. (Mastec Blasting)2 for breach of contract and fraud.3 A jury found that appellants

breached agreements and committed fraud. It also found that appellants were part of a

conspiracy and were each responsible for the conduct of the other. The jury determined

breach of contract damages in the amount of $219,810.37, fraud damages in the amount

of $12,485.55, and exemplary damages in the amount of $49,942.20. The trial court

entered judgment in conformity with the verdict and also awarded attorneys' fees against

appellants.

        By five issues, appellants complain that: (1) the trial court entered an improper

judgment on the breach of contract claim; (2) Parker is estopped from arguing that the

Claytons' payment of $254,640.63 should be applied toward invoices submitted to

Calabrian Corporation; (3) the trial court abused its discretion when it admitted the

Calabrian invoices into evidence; and (4-5) the evidence is insufficient to establish fraud

and to establish that each appellant was responsible for the conduct of the others. We

affirm in part, modify and affirm as modified in part, and reverse and remand in part.

                                               I. BACKGROUND

        Parker began "factoring" invoices for appellants in late 2001 or early 2002, starting

with the Calabrian invoices.4 After three or four years, Parker learned that some of the


        2
         Our review of the record reveals that Mastec Blasting and Painting, Ltd. is identified on som e invoices
as Mastec Blasting and Painting, Ltd. and on som e pleadings as Master Blasting & Painting, Ltd. The
judgm ent below and the briefing in this Court, however, refer to that appellant as Mastec Blasting and Painting,
Ltd., and we will do likewise.

        3
            Parker also sued appellants for defam ation but dism issed those claim s before trial.

        4
         More specifically, as Parker testified, "invoice factoring" is a process by which a business seeks
short-term financing from an investor. The business provides the investor with an invoice. The investor writes
a check to the business for ninety percent of the balance due on that invoice. W hen the client or custom er

                                                         2
invoices sold to him by appellants might be "bogus." He reported this to a federal agency.

        On June 5, 2006, Parker filed suit against appellants for, inter alia, breach of

contract, alleging that appellants failed to deliver valid invoices reflecting actual amounts

owed, and fraud, alleging that appellants had sold him false invoices and had also

collected on invoices sold to Parker. Parker pleaded that he was entitled to recover

$400,139.90 from appellants, jointly and severally. The invoices supporting the claimed

damages were a part of an exhibit attached to the petition.5 Parker also asked for punitive

damages and attorney's fees. Appellants filed a general denial on July 5, 2006. On April

14, 2008, after a federal criminal investigation, the Claytons paid Parker $254,640.63.

        On the first day of trial, July 28, 2008, Parker filed his first amended original petition,

pleading the same causes of action and theories of liability, but reducing the claimed

damages amount to $250,527.48, an amount again supported by invoices identified in an

exhibit attached to his amended petition.6 Parker again requested punitive damages and

attorney's fees. On July 30, 2008, the third day of trial, appellants filed an amended

answer generally denying the allegations and asserting payment and limitations as

affirmative defenses.

        At the close of Parker's case on July 30, appellants moved for a directed verdict on

claims related to the Calabrian invoices. They argued that the Calabrian claims were




pays the full invoice am ount, the investor gets the full am ount less five percent which is placed in a reserve
account to protect the business and the investor should a client or custom er not pay on an invoice.

        5
         Exhibit A contained 2002-2004 invoices from appellants to various clients, including the following:
BoMac; Exxon-Mobile; Florida Gas Transm ission; IMS; Industrial Steel Fabricators; Inland Orange; MAD, Ltd.;
MasTec Pipeline; Neff Rental; NES; Quality Hom e Im provem ent; Reynold's Pipe and Supply; Sam pson Steel
Corp.; Superior Supply and Steel; Texas Polym er Services, Inc.; Tetra Process Services; and Theco.

        6
        In addition to all invoices from the exhibit attached to Parker's original petition, this exhibit included
Calabrian invoices. Moreover, although Parker sought dam ages in the am ount of $250,527.48 in his
am ended petition, the invoices identified in this exhibit totaled approxim ately $595,000.

                                                        3
barred by the statute of limitations.7 The trial court granted appellants' motion on the

grounds that the claims were barred by limitations and that Parker had not established that

the discovery rule applied.8 Hoping for clarification of the trial court's ruling, this colloquy

between Parker's counsel and the trial court followed:

        [Parker's Counsel]:                Could I ask a question of the Court regarding the
                                           Calabrian ruling?

        Court:                             Your basis to loop that into limitations is the
                                           discovery rule. The discovery rule applies when
                                           you discover after the passing of limitations as to
                                           the harm. He was aware of the harm well before
                                           the passing of the limitations and, therefore, it is
                                           barred by the statute of limitations.

                   ....

                                                  What the Court intends to do is—is
                                           functionally direct verdict because in the issue I
                                           submit to them, I will instruct them to not
                                           consider any damages that accrued prior to
                                           whatever four years before the date of filing the
                                           lawsuit was.

        [Parker's Counsel]:                Is the Court, in doing so, effectively saying that
                                           the jury will be instructed that the payment made
                                           will be applied to invoices that were not barred
                                           by statute?

        Court:                             Say that again.

        [Parker's Counsel]:                Will . . . the Court, in doing so, effectively instruct
                                           the jury that any payment that was made should
                                           be applied to invoices that were tendered within
                                           the statute of limitations?

        Court:                             If I understand what you're saying correctly, yes.
                                           anything outside the limitations is not


        7
            The Calabrian invoices were dated between October 2001 and February 2002. Suit was filed in June
2006.

        8
         Although unclear from the record, before the trial began, the trial court had apparently considered
appellants' m otion for sum m ary judgm ent based on this sam e argum ent and denied it, reasoning that fact
issues rem ained, at that tim e, as to whether the discovery rule applied.

                                                      4
                                         recoverable. Anything within the limitations is
                                         recoverable . . . .

        At the charge conference the following morning, appellants objected to "the issue

of damages on Calabrian being submitted to the jury." This objection was directed to the

set of four charge questions that asked, "Did [each appellant] fail to comply with the

agreement?" The jury was instructed to "answer for each invoice contained on the next

page." The "next page" of the charge did not list invoices but names of companies,

including Calabrian, whose invoices from appellants had been factored by Parker.9 In

response to appellants' objection, the trial court stated the following:

        All right. And as I . . . already indicated my intent to not allow that as an item
        of recovery; but in the outside chance that the court of appeals, as they have
        from time to time disagree[d] with me, if I don't include it and take it away
        after the fact, they'll send it back here and we'll have to go through all this
        again. Whereas if I'm wrong, they can just stick it back in.

        On August 1, 2008, the jury returned a verdict in favor of Parker. It found that each

appellant "fail[ed] to comply with the agreement," including any agreement with respect to

the Calabrian invoices. Based on the affirmative findings, the jury determined breach of

contract damages in the amount of $219,810.37. It also found fraud against each

appellant and that, by clear and convincing evidence, the harm to Parker resulted from

fraud. The jury awarded fraud damages in the amount of $12,485.55 and exemplary

damages totaling $49,942.20. The jury also found that appellants conspired against

Parker.10 Finally, it found that Mastec Blasting was responsible for the conduct of T.I.P.S.,

that T.I.P.S. was responsible for the conduct of Mastec Blasting, and that the Claytons

        9
         The list included invoices from appellants to the following com panies: Bo-Mac; Exxon-Mobil; Florida
Gas Transm ission; IMS; Industrial Steel Fabricators; Inland Orange; MAD, Ltd.; Mastec; Neff Rental; NES;
Quality Hom e Im provem ent; Reynold's Pipe and Supply; Sam pson Steel Corp.; Superior Supply and Steel;
Texas Polym er Services, Inc.; Tetra Process Services; Theco; and Calabrian.

        10
          In addition, the jury found that appellants secured the execution of a docum ent by deception that
involved property valued at $1,500 or m ore and intentionally m isapplied funds in a m anner that involved
substantial risk of loss to Parker and the value of the property was $1,500 or m ore.

                                                     5
were each responsible for the conduct of Mastec Blasting and T.I.P.S.

        On August 26, 2008, appellants filed a motion for judgment notwithstanding the

verdict (JNOV) urging, in relevant part, that because the trial court granted a directed

verdict concerning all damages relating to Calabrian, the jury damage findings should be

reduced by that amount—an amount identified by appellants as approximately $139,000.

They further asserted that Parker should be estopped from arguing that the Claytons'

payment of $254,640.63 should be applied toward the Calabrian invoices, rather than

toward the invoices specifically outlined in the restitution order,11 an argument appellants

claim Parker did not make until the last day of trial.

        Parker filed his motion for entry of judgment on August 29, 2010. Appellants

responded, urging the position set out in their motion for JNOV. In a supplemental

response, appellants also asserted that the total verdict amount, $282,238.12, should be

reduced by the 2008 payment made by the Claytons to Parker. In addition, appellants

argued that the balance should be further reduced by the amount of damages represented

by the Calabrian invoices, which would leave a take-nothing verdict.

        Nonetheless, the trial court denied the motion for JNOV and entered judgment in

conformity with the jury's verdict. It also awarded attorney's fees in the amount of $16,000

for services rendered through trial, and, in the event of an unsuccessful appeal to the court

of appeals, $5,000, and to the supreme court, an additional $5,000.




        11
           The restitution order, referenced by appellants, does not appear in the record. Furtherm ore, it is
undisputed that Court's Exhibit #1, setting out the sum m ary of the am ount of false invoices sold to Parker
which appellants allege should have been paid by the $254,640.63 check, was only adm itted for review by the
trial court— not for review by the jury.

                                                      6
                                               II. ANALYSIS

                                   A. BREACH OF CONTRACT CLAIM

1. Statute of Limitations Bar

          By their first issue, appellants complain of the award of damages on Parker's breach

of contract claim.12 We liberally construe this issue as a challenge to the trial court's denial

of appellants' motion for JNOV. See Perry v. Cohen, 272 S.W.3d 585, 587-88 (Tex. 2008)

(per curiam) ("'[W]e liberally construe issues presented to obtain a just, fair, and equitable

adjudication of the rights of the litigants.'") (quoting El Paso Natural Gas v. Minco Oil &

Gas, 8 S.W.3d 309, 316 (Tex. 1999)). Appellants assert that the trial court's directed

verdict prevented a judgment which included damages based on the Calabrian invoices.

We agree.

          When made on an evidentiary basis, rulings on motions for JNOV are reviewed

under the same legal-sufficiency test as are appellate no-evidence challenges. See

Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009) (citing City of

Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). When 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) ("[Q]uestions of law are always subject to de novo review.");

John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex. App.–Houston [1st Dist.] 1993, writ

denied) (providing that a JNOV is proper when a legal principle precludes recovery); see

also Morrell v. Finke, 184 S.W.3d 257, 290-91 (Tex. App.–Fort Worth 2005, pet. denied)

(en banc) (concluding that the trial court erred by denying the defendants' motion for JNOV

because plaintiff's claims against them were barred by the statute of limitations);



          12
           Appellants do not challenge the jury's findings of liability against them on the breach of contract
claim .

                                                      7
Stevenson v. Koutzarov, 795 S.W.2d 313, 319-20 (Tex. App.–Houston [1st Dist.] 1990, writ

denied) (op. on reh'g) (concluding that a third-party plaintiff's JNOV on one of his causes

of action was precluded because it was barred by the statute of limitations); Graphilter

Corp. v. Vinson, 518 S.W.2d 952, 953 (Tex. App.–Dallas 1975, writ ref'd n.r.e.) (precluding

a plaintiff's JNOV in a suit for breach of contract because the evidence showed the contract

was illegal).

        At the close of Parker's case, the trial court entered a directed verdict against Parker

on claims related to the Calabrian invoices, concluding that those claims were barred by

the statute of limitations and that Parker had not established that the discovery rule

applied. Nonetheless, the jury found liability under an agreement based on the Calabrian

invoices, and the jury's calculation of damages included $132,889.85, the balance due on

the Calabrian invoices.13 Appellants moved for JNOV on the damages awarded on the

breach of contract claim because the trial court had granted a directed verdict concerning

all damages relating to Calabrian. Although appellants urged the trial court to reduce the

jury damage findings by that amount, it entered a judgment that conformed to the verdict.

        Because the trial court's ruling involves legal principles, we review it de novo. See

In re Humphreys, 880 S.W.2d at 404. The trial court directed a verdict against recovery

of damages related to the Calabrian invoices, determining that such recovery was barred

by the statute of limitations. This ruling remains unchallenged. Thus, a portion of the claim

on which the trial court rendered judgment and awarded damages was barred by the

statute of limitations. By asserting a limitations bar as to the Calabrian invoices in their



        13
           W hile the Calabrian invoices totaled $194,083.60, appellants, in their m otion for JNOV, requested
only a reduction of approxim ately $139,000 and Parker, in his sum m ary of invoices, adm itted as Plaintiff's
Exhibit V, listed the outstanding balance as $132,889.85. Although Parker testified that the balance of
$132,889.85 should have been reduced by $3,732.45, an am ount paid to his attorney for work done on the
collection of the invoices, it is clear that the jury used the $132,889.85 figure in its calculation of dam ages.

                                                       8
motion for JNOV, appellants gave the trial court ample opportunity to rule on damages

before an erroneous judgment was rendered.14 Therefore, reviewing the trial court's denial

of appellants' motion for JNOV de novo, we conclude that a JNOV was proper because

that legal principle precluded recovery. See id.; John Masek Corp., 848 S.W.2d at 173.

Appellants' motion for JNOV should have been granted. We sustain appellants' first issue.

2. Estoppel

        Appellants assert, in their second issue, that by accepting the Claytons' $254,640.63

payment, Parker is estopped from applying the payment to the Calabrian invoices.

Appellants argue Parker should have, instead, applied that payment to the invoices

identified in the restitution order.15 Appellants argue that, under the equitable doctrine of

quasi-estoppel, Parker is precluded from crediting the Clayton's payment "wherever he

wants." They contend that, by accepting and cashing the check, Parker acquiesced to the

agreement between the government and the Claytons and is prevented from asserting that

the payment was used for Calabrian's invoices. They claim that "[i]n good conscience

[Parker] should not [have been] allowed to assert this new, contrary argument on the last

day of trial."

        The defense of quasi-estoppel precludes a party from asserting, to another's

disadvantage, a right inconsistent with a position previously taken. Lopez v. Munoz,

Hockema & Reed, 22 S.W.3d 857, 864 (Tex. 2000) (citing Atkinson Gas Co. v. Albrecht,

878 S.W.2d 236, 240 (Tex. App.–Corpus Christi 1994, writ denied)). "The doctrine applies

when it would be unconscionable to allow a person to maintain a position inconsistent with


        14
          As noted above, the trial court had explained to Parker's counsel that anything outside the lim itations
was not recoverable and that the jury would be instructed to that extent. No such instruction, however, was
requested or given. The trial court also stated that it intended "not to not allow [the set of Calabrian invoices]
as an item of recovery."

        15
          As noted above, the referenced order does not appear in the record.

                                                        9
one to which he acquiesced, or from which he accepted a benefit." Id. (citing Atkinson

Gas, 878 S.W.2d at 240; Vessels v. Anschutz Corp., 823 S.W.2d 762, 765-66 (Tex.

App.–Texarkana 1992, writ denied)). This equitable doctrine operates as an affirmative

defense. Hamilton v. Morris Res., Ltd., 225 S.W.3d 336, 346 (Tex. App.–San Antonio

2007, pet. denied). Moreover, as an affirmative defense, quasi-estoppel must be pleaded

or it is waived. See TEX . R. CIV. P. 94; Rogers v. Continental Airlines Inc., 41 S.W.3d 196,

198 (Tex. App.–Houston [14th Dist.] 2001, no pet.); Hay v. Shell Oil Co., 986 S.W.2d 772,

775 (Tex. App.–Corpus Christi 1999, pet. denied); Atkinson Gas, 878 S.W.2d at 239-40.

        Parker filed an amended petition on the first day of trial. On the third and final day

of trial, appellants amended their answer to include the affirmative defenses of payment

and limitations. Their amended answer did not include the affirmative defense of quasi-

estoppel. They did not plead that Parker was taking a position inconsistent with one taken

earlier. Therefore, because appellants did not plead an estoppel defense, they have

waived any argument based on quasi-estoppel. We overrule appellants' second issue.16

                                            B. FRAUD CLAIM

        By their fourth issue, appellants contend that the evidence is legally insufficient to

establish Parker's fraud claim. Specifically, appellants challenge the misrepresentation

element of fraud.

        In reviewing the legal sufficiency of the evidence, we view the evidence in the light

most favorable to the jury's findings, giving full credit to all favorable evidence if any

reasonable person could, and disregarding contrary evidence unless reasonable persons

could not. City of Keller, 168 S.W.3d at 807. We must deny a legal sufficiency challenge



        16
           Because appellants' first and second issues are dispositive of their breach of contract challenge,
we need not address the third issue wherein they com plain that the trial court abused its discretion when it
adm itted the Calabrian invoices into evidence. See T EX . R. A PP . P. 47.1.

                                                    10
unless: (1) there is a complete absence of evidence of a vital fact; (2) all the evidence

offered to prove a vital fact amounts to only a mere scintilla and no more; (3) the rules of

law or evidence completely forbid any consideration of the only evidence offered to prove

a vital fact; or (4) the evidence which the jury was compelled to consider and believe

conclusively establishes the opposite of the vital fact. Id. at 810 & n.15-16. Vital facts may

be proved by direct or circumstantial evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 601 (Tex. 2004); Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 285 (Tex. 1995).

Texas jurisprudence also allows a reasonable inference to be made from circumstantial

evidence. Faircloth, 898 S.W.2d at 285. Moreover,

              [j]urors are the sole judges of the credibility of the witnesses and the
       weight to give their testimony. They may choose to believe one witness and
       disbelieve another. Reviewing courts cannot impose their own opinions to the
       contrary.

              Most credibility questions are implicit rather than explicit in a jury's
       verdict. Thus, reviewing courts must assume jurors decided all of them in
       favor of the verdict if reasonable human beings could do so. Courts
       reviewing all the evidence in a light favorable to the verdict thus assume that
       jurors credited testimony favorable to the verdict and disbelieved testimony
       contrary to it.

City of Keller, 178 S.W.3d at 819.

       The four fraud liability questions—each specific as to one of the appellants—asked

the jury, "Did [appellant] commit fraud against Bob Parker?" The charge instructed that,

       Fraud occurs when—

       a.     a party makes a material misrepresentation,

       b.     the misrepresentation is made with knowledge of its falsity or made
              recklessly without any knowledge of the truth and as a positive
              assertion,

       c.     the misrepresentation is made with the intention that it should be
              acted on by the other party, and

       d.     the other party relies on the misrepresentation and thereby suffers

                                             11
              injury.

The charge also defined "misrepresentation" as “[a] false statement of fact or a promise

of future performance made with an intent, at the time the promise was made, not to

perform as promised." The jury found that each appellant committed fraud against Parker.

       Testimony at trial established that Parker factored a number of invoices Mastec

Blasting billed to Bo-Mac. Parker testified that these invoices, for which he was owed more

than $90,000, were false. In addition, according to Ron Harris, comptroller for Bo-Mac in

2004, the invoices from Mastec Blasting were not valid invoices and did not represent work

done by Mastec Blasting for Bo-Mac. Furthermore, Steve first testified that he had no

recollection of any effort to collect the balance on the Bo-Mac invoices, but later stated that

he had pursued Bo-Mac for payment. Steve also agreed that it was reasonable for Parker

to believe that a Mastec Blasting invoice addressed to Bo-Mac meant that Bo-Mac owed

money to Mastec Blasting. Steve's explanation for the Bo-Mac invoices was that the

invoices were meant for a company called NES and that he did not know what went wrong.

       When questioned about other allegedly fraudulent, unpaid invoices, Steve testified

that he had no recollection of the invoices (Industrial Steel Fabricators and Inland Orange),

he did not know whether they had been paid (Florida Gas), or the invoices had been

incorrectly billed (ExxonMobil and Florida Gas). In addition, John Reynolds, owner of

Reynolds Pipe and Supply, stated that his company received an invoice from T.I.P.S. in

the amount of $985.19 for work that was either never requested or never completed. Jay

Eisen, president of Sampson Steel Corporation, testified that his company was over-billed

by Mastec Blasting on an invoice, in the amount of $152. Cheryl Moore, president and

owner of Industrial Steel Fabricators, claimed that she was over-billed on two separate

invoices by Mastec Blasting for an amount totaling more than $5,000.



                                              12
        Jodi Carr, a witness for Parker, testified that she provided “general secretarial

duties” for appellants over a five-month period from late 2002 to early 2003. According to

Carr, invoices for T.I.P.S. were generated by Melody Clayton, and although she believed

that some of the invoices were not on the "up and up," Carr did not know whether any of

the invoices submitted to Parker were "bogus." Carr also stated that she felt things were

not right because she knew there were cash flow problems. She agreed that there was not

"a lot of work going on."17 Carr testified that she overheard comments made by Melody

and David Rainwater, such as “Where are we going to pull the rabbit out of the hat this

time?”18

        Viewing the evidence in the light most favorable to the jury's findings, giving full

credit to all favorable evidence if any reasonable person could, and disregarding contrary

evidence unless reasonable persons could not, we conclude that the evidence offered to

prove misrepresentation—a false statement of fact—amounts to more than a scintilla.19

See City of Keller, 168 S.W.3d at 807, 810 & n.15-16. Various company representatives

and Parker provided direct evidence to support a finding the appellants made material

misrepresentations as reflected on the invoices. See Ridgway, 135 S.W.3d at 601 (Tex.

2004). Further, reasonable inferences supporting such a finding could be made from the

circumstantial evidence provided by Carr. See Faircloth, 898 S.W.2d at 285. Moreover,



        17
         On cross-exam ination, Carr testified that the Claytons rented a building in Rose City and could have
been doing business out of that location.

        18
           David Rainwater, not a party to the lawsuit, was identified as an estim ator who bid on jobs.

        19
           Appellants also assert that there was no evidence presented at trial that appellants did not intend
to perform when entering into the contract. W ithout objection, the jury charge defined "m isrepresentation" as
"[a] false statem ent of fact or a prom ise of future perform ance m ade with an intent, at the tim e the prom ise
was m ade, not to perform as prom ised." (Em phasis added.) Because we have concluded that the evidence
was sufficient to establish m isrepresentation— a false statem ent— we need not address this rem aining
assertion. See Rom ero v. KPH Consol., Inc., 166 S.W .3d 212, 221 (Tex. 2005) ("The sufficiency of the
evidence m ust be m easured by the jury charge when, as here, there has been no objection to it.").

                                                       13
because the jurors are the sole judges of the credibility of the witnesses and the weight to

give their testimony, we must assume they chose to disbelieve Steve's testimony and to

believe the other witnesses' testimony regarding the discrepancies in the invoices, the work

requested or completed, and the reasons for those discrepancies. See City of Keller, 168

S.W.3d at 819.         Thus, we conclude that the evidence supports the fraud finding.

Appellants' fourth issue is overruled.

                                              C. ALTER EGO

        By their fifth issue, appellants challenge the sufficiency of the evidence to support

the jury's affirmative findings that the Claytons and T.I.P.S. were responsible for the

conduct of Mastec Blasting and that the Claytons and Mastec Blasting were responsible

for the conduct of T.I.P.S.20 Based on the jury's answers, the trial court concluded that


        20
         For exam ple, jury question 31 asked whether Steve Clayton was "responsible" for the conduct of
Mastec Blasting. The question set out that Clayton was "responsible" if:

        Mastec Blasting and Painting, Ltd. was organized and operated as a m ere tool or business
        conduit of Steve Clayton; there was such unity between Mastec Blasting and Painting, Ltd.
        and Steve Clayton, that the separateness of Mastec Blasting and Painting, Ltd. had ceased
        and holding only Mastec Blasting and Painting, Ltd. responsible would result in injustice; and
        Steve Clayton, [sic] caused Mastec Blasting and Painting, Ltd. to be used for the purpose of
        perpetuating and did perpetuate an actual fraud on Bob Parker prim arily for the direct
        personal benefit of Steve Clayton.

        In deciding whether there was such unity between Mastec Blasting and Painting, Ltd. and
        Steve Clayton, that the separateness of Mastec Blasting and Painting, Ltd. had ceased, you
        are to consider the total dealings of Mastec Blasting and Painting, Ltd. and Steve Clayton,,
        [sic] including:

        1. the degree to which Mastec Blasting and Painting, Ltd.'s property had been kept separate
        from that of Steve Clayton,; [sic]

        2. the am ount of financial interest, ownership, and control Steve Clayton,. [sic] m aintained
        over Mastec Blasting and Painting, Ltd. and

        3. whether Mastec Blasting and Painting, Ltd. had been used for personal purposes of Steve
        Clayton.[sic]

        or

        whether Steve Clayton used Mastec Blasting and Painting, Ltd. for the purpose of
        perpetrating and did perpetrate an actual fraud on Bob Parker prim arily for the direct personal
        benefit of Steve Clayton.

                                                      14
Mastec Blasting and T.I.P.S. were the alter egos of one another and of the Claytons and

awarded damages against appellants, jointly and severally.

       Appellants first complain of the sufficiency of the evidence to establish that they

committed intentional fraud, theft, or forgery to such a gross extent that the court in equity

should ignore the limited partnership structure. The jury charge, however, did not require

such proof. See Romero v. KPH Consol., Inc., 166 S.W.3d 212, 221 (Tex. 2005) ("The

sufficiency of the evidence must be measured by the jury charge when, as here, there has

been no objection to it."); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002) (citing

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000)). Thus, appellants' argument is

misplaced.

       Moreover, contingent upon its fraud findings, the jury found that each appellant was

part of a conspiracy that damaged Parker, and appellants do not challenge the jury's

conspiracy findings. "It is well-settled law that upon joining a conspiracy, a defendant

becomes a party to every act previously or subsequently committed by any of the other

conspirators in pursuit of the conspiracy." Greenberg Traurig of N.Y., P.C. v. Moody, 161

S.W.3d 56, 95 (Tex. App.–Houston [14th Dist.] 2004, no pet.) (citing State v. Standard Oil

Co., 130 Tex. 313, 107 S.W.2d 550, 560 (1937)); see Akin v. Dahl, 661 S.W.2d 917, 921

(Tex. 1983) ("Once a civil conspiracy is found, each co-conspirator is responsible for the

action of any of the co-conspirators which is in furtherance of the unlawful combination.").

Therefore, "[a]ll conspirators[, all appellants in this case,] are jointly and severally liable for

wrongful [fraudulent] acts done in furtherance of the conspiracy." Smith v. Caldwell, 754

S.W.2d 692, 693-94 (Tex. App.–Houston [1st Dist.] 1987, orig. proceeding); see Bentley

v. Bunton, 94 S.W.3d 561, 608 (Tex. 2002) ("A party who joins in a conspiracy is jointly and


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severally liable 'for all acts done by any of the conspirators in furtherance of the unlawful

combination.'") (citing Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 926 (Tex. 1979)

(quoting Standard Oil, 107 S.W.2d at 559)). Thus, appellants' argument, as it applies to

the fraud findings and damage award, fails for this reason, as well.

       Appellants further contend (1) that Parker only submitted evidence concerning

ownership, which is insufficient to uphold the jury's verdict, and (2) that there is no

evidence that the separateness of the corporation ceased or that holding the corporation

liable would result in an injustice. Citing Castleberry v. Branscum, appellants state that

Parker must prove (1) financial interest, ownership, or control by appellants, (2) such a

unity between the corporation and individual(s) that the separateness of the single

corporation has ceased, and (3) holding only the corporation liable would result in an

injustice. See 721 S.W.2d 270, 272 (Tex. 1986). However, appellants set forth no

supporting analysis or argument with citation to the record and to other relevant authorities

for these contentions. Moreover, appellants do not address the sufficiency of the evidence

as measured by that portion of the jury charge to which they did not object. See Romero,

166 S.W.3d at 221. We conclude that appellants' two-sentence contention and their

citation to one authority is therefore inadequately briefed and, accordingly, waived. See

TEX . R. APP. P. 38.1(i) (requiring brief to contain "a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record"); Fredonia

State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (discussing the

"long-standing rule" that an issue may be waived due to inadequate briefing). We overrule

appellants' fifth issue.



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                                       III. CONCLUSION

       We modify the judgment: (1) to omit any finding that Steve Clayton, Melody

Clayton, Mastec Blasting and Painting, Ltd., and T.I.P.S., Ltd. failed to perform as related

to the Calabrian invoices; (2) to omit any finding that each defendant is jointly and severally

liable to plaintiff for those respective invoice amounts; and (3) to, instead, reflect a finding

that recovery of damages related to the Calabrian invoices is barred by limitations. We

affirm this portion of the judgment, as modified. See TEX . R. APP. P. 43.2(b). Furthermore,

we reverse the judgment to omit $132,889.95 from the calculation of the award of breach

of contract damages and remand for recalculation of those damages. We also reverse that

portion of the judgment awarding interest as to breach of contract damages and remand

for recalculation of pre-judgment and post-judgment interest. See id. at rule 43.2(d). We

affirm the remainder of the trial court's judgment. See id. at rule 43.2(a).




                                                           NELDA V. RODRIGUEZ
                                                           Justice

Delivered and filed the
12th day of August, 2010.




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