       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-01-00697-CV



                                    Nathaniel Aniekwu, Appellant

                                                     v.

                                        Sean Daniels, Appellee


                 FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
                NO. 251,513, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING




                This appeal involves a business relationship that appellee Sean Daniels describes as a

partnership and that appellant Nathaniel Aniekwu describes as nothing more than a

contractor/subcontractor relationship. After the arrangement soured, Daniels sued Aniekwu. At the

conclusion of vastly conflicting evidence, the jury found that (1) Daniels and Aniekwu had a partnership; (2)

Aniekwu breached his fiduciary duty and duties of loyalty and care; and (3) Aniekwu committed fraud and

conversion. Daniels elected to recover under his fraud and conversion causes of action. The trial court

denied Aniekwu=s motion for judgment non obstante veredicto (AJNOV@) and rendered judgment on the

jury=s verdict, ordering Aniekwu to pay Daniels $109,218.881 in compensatory damages and $50,000 in

exemplary damages, plus prejudgment interest and costs.


        1
          The $109,218.88 damage award consists of: $46,712.28 in compensatory damages for
Aniekwu=s fraud, defined as the amount Daniels was to have received under the agreement less expenses he
saved by not fully performing; $60,000 in consequential damages, defined as lost profits and loss of credit
that were natural, probable, and foreseeable consequences of Aniekwu=s fraud; and $2,506.60 for
conversion damages.
                                       Sufficiency of the Evidence

                 We will first examine Aniekwu=s issues related to the sufficiency of the evidence. Aniekwu

contends that the evidence is legally and factually insufficient to support the jury=s finding that he committed

fraud or the award of exemplary damages and that no evidence supports the jury=s awards of $60,000 in

consequential damages or $2,506.60 in conversion damages.2 Aniekwu further argues that the trial

court erred in denying his motion for JNOV because there is no evidence to support findings that

he entered into a partnership with Daniels or that he owed and breached a fiduciary duty or a duty

of care or loyalty based on such partners hip.


                                            Standard of Review

                 In performing a Ano-evidence@ or legal sufficiency review, we consider only the

evidence and inferences that support a particular finding and disregard all contrary evidence and

inferences. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Simons v. City of

Austin, 921 S.W.2d 524, 527 (Tex. App.CAustin 1996, writ denied). In evaluating the factual

sufficiency of the evidence, we review the entire record and set aside the finding only if it is so

against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986); Simons, 921 S.W.2d at 527. The jury as fact-finder is the

sole judge of witness credibility and the weight to be given the testimony. Simons, 921 S.W.2d at




        2
            Aniekwu does not attack the $46,712.28 award for compensatory fraud damages.


                                                       3
531. We will not substitute our opinion for that of the jury when the verdict is sufficiently

grounded in evidence. Id.


                                        Summary of the Evidence

                Because Aniekwu contests the sufficiency of the evidence to support findings of fraud and

consequential and exemplary damages, a summary of the evidence is necessary. The business relationship

between Daniels and Aniekwu started in March 1997 and ended shortly after the 1999 Memorial Day

weekend. Daniels worked with Aniekwu on several projects, and although much of the evidence concerns

the final project on which they worked together, Daniels=s contentions of fraud and damages encompass the

entire two-year period of their business relationship. The details of the business relationship were never

memorialized in writing; all of their arrangements and agreements were oral. Therefore, it was for the jury to

hear Daniels=s and Aniekwu=s versions of their relationship and determine the credibility of each version.

See id.

                Daniels testified that he started his own landscaping business in 1995, getting work through

referrals and his church. In March 1997, Daniels met Aniekwu, who was bidding on state landscaping

projects and who also ran a gift shop in a local hotel. Aniekwu and Daniels discussed working on a

landscaping project at a state-owned nursing home on which Aniekwu was bidding; a third man, Al Brown,

was also involved with the beginning of this project. Daniels testified,


        I had my business going at that time, you know, so I don=t want to make no obligation or
        any commitment to anybody. Me, [Aniekwu], and Mr. Al Brown, you know, came up
        with a decision, AOkay, we=re going to have a partnership, you know, so we=re going to



                                                      4
        split the proceeds from this project.@ So that=s when we get together and went down to . .
        . speak with the inspectors, and that=s how we obtained the first contract.


Daniels spoke to the state agency to assure the agency that Aniekwu=s team had Athe experience to do this

type of project.@

                Daniels testified that he invested time and materials worth $4,474.80 in the nursing home

project. Daniels did not know what the overall contract price was and never received any of the proceeds.

When he asked Aniekwu for his share of the proceeds, Aniekwu told him, AWell, this is chicken feed, you

know. I have some other bigger contracts coming up, you know. Just let=s look at the big picture. We

could use this to, you know, bankroll the other projects that [are] coming up.@ Daniels testified that he

Aagreed to wait on getting [his] proceeds from the nursing home@ because Aniekwu promised that Asome

bigger landscape contracts [were] coming up.@

                In August or September 1998, Aniekwu contacted Daniels about bidding on a large project

to mow the Texas Department of Transportation (ATxDOT@) right-of-way along highways in San Antonio

(Athe San Antonio project@). Daniels did not mind that the San Antonio bid was submitted in Aniekwu=s

name alone Abecause we had an agreement; and, plus, we had past dealings with one another. You know,

and he owed me from the past.@ He said, AWe have an agreement of what each other is going to get out of

it. I wasn=t trying to go into business with Nathaniel with the same company name. You know, I have my

own company name. I=ve been established for a long time.@ Daniels said his understanding of the

partnership was that Aniekwu would handle the business end, Adealing with the contracts and the inspector,

and things of that nature.@


                                                    5
                Daniels testified that he assisted Aniekwu in deciding how much they should bid and what

equipment they would need for the San Antonio project. Aniekwu was to be in charge of the crew using

mowing tractors and Daniels was to follow behind the tractors with a crew of weed eaters. To help finance

the San Antonio project, Daniels helped Aniekwu on a small job in Laredo (Daniels said he and Aniekwu

did not finish the Laredo project) and cut the grass and trimmed trees on Aniekwu=s rental property without

compensation. Daniels testified that Aniekwu offered to buy him a truck so that Daniels could haul

equipment. Daniels said, AYou know, I was going to get a trailer out of it, you know, and plus my service

fees for being on the project.@ At the last minute, Aniekwu said he could not supply a truck, so Daniels

repaired his old truck and used it during the first Acycle@ of the job. Daniels also bought four weed eaters

for use on the project.

                The San Antonio project was set to begin in April or May and was to be a two-year, full-

time job, so with Aniekwu=s approval, Daniels left his other business and his moonlighting job at a

convenience store Ato participate in this full time.@ Daniels told Aniekwu he could not afford to pay for the

project materials, so Aniekwu agreed to pay for them. Daniels testified, AIf this was going to be a financial

obligation to me, I wouldn=t take that risk. You know, it was promised me and all the employees everything

was going to beCall expense was going to be paid by Mr. Aniekwu.@ He said, AAnd the only reason why I

went into it, because I know I=m going to have guaranteed money coming from it and I also could use

equipment, or else if I didn=t get that assurance, I would have never left my job and left my business alone.@

Daniels wanted to train the mowing crew in advance, but Aniekwu never arranged for such training before

the project began.


                                                      6
                The first mowing cycle started one day late and Daniels testified that work had to be

stopped during the first cycle due to several different tractor-related problems, including having the blades

on the tractors set too low, throwing up rocks and damaging passing cars; Aniekwu paid for the damage.

Daniels said, A[I]t wasn=t organized. We had a good plan, you know, talking about the project before and

what needs to be done, but when we went out there, it didn=t get executed the way it should be executed.@

Daniels intended to follow the tractors, but because of the tractor-related delays, he and his crew started

weed eating on the other side of the highway. Although Aniekwu wanted to eliminate some of the weed

eating crew, Daniels refused. Daniels said the weed eating took longer than usual, even with the extra

laborers, because the grass was so thick.

                Daniels testified that before the project began he warned Aniekwu that he had to go out of

town over the Memorial Day weekend; the first cycle was supposed to be finished before Memorial Day,

but ran late because of problems related to the tractors and other delays. Daniels left the Friday before

Memorial Day and returned on Monday, thinking the crew would not work over the holiday weekend. On

Tuesday, he returned to the project, put his crew to work, and asked Aniekwu for money for food and gas;

Aniekwu said he did not have any money to give Daniels.

                Daniels knew money would be tight early in the project, so he and Aniekwu asked some of

the crew to accept being paid only at the end of the month. Even then, some laborers were not paid by

Aniekwu, who made partial payments to some, with promises to pay more later, and shorted the pay of

others. Aniekwu also fired some laborers to cut expenses. When some of Daniels=s crew quit because they

had not been paid, Aniekwu found replacements, but Daniels said that hiring those men was Aa disaster.@


                                                     7
Daniels said, AI was trying to show them how to weed eat out there, and that=s when he [Aniekwu] took the

other weed eaters from me, three weed eaters, plus one of my personal weed eater[s].@ Daniels testified

that Aniekwu kept the weed eaters. Aniekwu eventually stopped returning Daniels=s calls, despite Daniels=s

increasingly angry messages.

                 Because Daniels was promised that gas, food, hotel rooms, and expenses for the San

Antonio project would be repaid, he paid for food and gas for himself and other crew members out of his

own pocket. Daniels testified that he paid $1600 for the weed eaters that Aniekwu kept. According to

Daniels, the full contract amount for the San Antonio project was $401,304.90 and Aniekwu was paid

$44,098.95 for the first cycle; Daniels received a total of $400 for the San Antonio project and was never

paid for his earlier work on the nursing home or other projects. Daniels testified that he incurred

$99,812.06 in damages, including the weed eaters, labor fees, truck repairs, maintenance, operating

expenses, and bankruptcy attorney=s fees. Daniels also testified that due to financial problems brought on

by his dealings with Aniekwu, he was filed bankruptcy in August 1999. Daniels had intended to refinance

his house, expecting to save about $26,000 in interest over the course of the new mortgage, but after he

declared bankruptcy he was unable to obtain refinancing. He eventually got a job at a warehouse, where he

still worked at the time of trial.

                 Ricky McGee, owner of Austin Outdoor Power, testified that he had done business with

Daniels for four to five years. Daniels introduced Aniekwu to McGee as a Anew business partner,@ saying

that they were Astarting some new avenues, looking into some State contracts and things of that nature. And

I was introduced to Nathaniel, and Nathaniel was going to make most of the decisions, especially from a


                                                    8
financial standpoint of view for Sean and the company.@ McGee said Aniekwu and Daniels bought

equipment with Daniels=s existing business account. McGee was asked, AAnd it was apparent . . . that all

the purchases they made were going to benefit their job, that both of them were working on as partners; is

that correct?@ McGee answered, AThat is correct. It was a joint venture was my understanding.@ McGee

said Daniels and Aniekwu indicated that their relationship was a joint venture and Aasked to be able to use

the Daniels= Landscape account that we had already had established,@ and said Aniekwu made most of the

decisions about what equipment to buy. McGee said that before working with Aniekwu, Daniels kept his

account in good standing, albeit with a few late payments. McGee thought that Daniels and Aniekwu over-

extended themselves and that Daniels Awas pretty much left with all the debt.@

                 John Lindsey testified that he had known Daniels for a number of years. Lindsey testified,

AWell, [Daniels] said he was going into business with this B with Nathaniel here, you know, cutting grass and

stuff; they=re trying to get some tractors and stuff.@ Lindsey agreed to operate one of the tractors for $500

or $600 a week, but Aniekwu paid him about $400 for the first and second weeks and then A[t]he last time

I got paid was like 300 and something dollars, and I just B I never came back.@ Lindsey said Aniekwu kept

reducing his pay until he quit.

                 Contrary to Daniels=s assertions, Aniekwu denied telling Daniels that they would be

partners. In his deposition, Aniekwu stated that he thought Daniels Adid the work on the nursing home

project out of the goodness of his heart@; at trial he testified that he paid Daniels for materials and that

Daniels also brought some day laborers. Aniekwu explained that he only paid Daniels for materials because

he understood that Daniels Awould bring these guys, and drop them, and go to his own landscaping


                                                     9
business.@ Aniekwu testified, AI asked him several times again, >Tell me exactly what you want me to pay?=

But he said not to worry about paying him.@ Aniekwu also agreed that he thought that Daniels mowed the

lawn of Aniekwu=s rental property Aout of the goodness of his heart.@ Aniekwu said that Daniels=s role on

the San Antonio project was as a subcontractor to help Aniekwu Aprocure or secure day laborers.@

Aniekwu testified that Daniels said he was too busy with his own work to do more than help get workers.

Aniekwu testified that he understood that Daniels did not want or expect to be paid for his work on the

projects, but only wished to be involved in the bidding process on the projects as a learning experience;

however, he also testified that Daniels did not help prepare the bids for the nursing home or San Antonio

projects. Aniekwu said that if Daniels expected to be paid for the San Antonio project, Daniels would have

arranged to be paid by Aniekwu so that he could pay his weed eating crew himself instead of having

Aniekwu pay the crew directly.

                Aniekwu testified about TxDOT=s daily logs indicating when the right-of-way was mowed

and any equipment or other problems that arose each day. Aniekwu denied that Daniels told him in

advance about the Memorial Day weekend trip, and said that Daniels was absent from the Thursday before

Memorial Day until the following Wednesday or Thursday. Although Aniekwu=s crew was contractually

barred from working on weekends without permission, Aniekwu testified that he and his crew worked

during that holiday weekend. When asked why the daily logs indicate that no work was performed over

that weekend, Aniekwu stated, AI worked only on Saturday,@ and, APerhaps I got the permission to work,

but he [the TxDOT inspector] didn=t want to reflect it as work being done that day.@ Other log entries

indicate when Aniekwu=s crew attempted to work on weekends without permission. Although Aniekwu


                                                   10
alleged that Daniels=s weed eating crew moved too slowly, the logs do not reflect this; Aniekwu testified that

it was too small a part of the project to be noted, but the logs do indicate problems with the weed eating

crew falling behind schedule or performing the work improperly after Daniels left the project.

                Aniekwu=s personal financial statement from 1998 indicated his net worth was about

$333,000. He testified that as of the date of trial, he had received some $275,000 from the San Antonio

project and that he was currently working on a $300,000 TxDOT contract for mowing in the Austin area

and had been paid between $125,000 and $150,000 for that project. Aniekwu admitted that he Aalso took

Sean=s [weed eaters] later.@

                Huey Krauser testified that he had known Aniekwu for three or four years and briefly

worked on the San Antonio project. He said that Daniels=s weed eating crew fell behind early in the project

and that TxDOT often complained about the weed eating, sometimes several times a day.

                Yvonne Williams testified that she had been friends with Aniekwu for about ten years. She

met Daniels through her church and introduced him to Aniekwu. Williams testified that she helped Aniekwu

prepare his bid for the San Antonio project and that Daniels was not involved in the process, other than

being asked what he would charge to Abe a weed eating crew.@ Williams said Daniels was interested in the

bidding process more than in making money on the project. Williams testified that she had reservations

about using Daniels because he was not actively involved in landscaping but instead worked at a

convenience store. She asked Aniekwu whether he had the terms of his agreement with Daniels in writing,

but Aniekwu said, AOh, we=re friends. Don=t worry. This is going to be okay. We=re going to be able to

work this through.@ Williams said Daniels never indicated that he wanted to be partners with Aniekwu.


                                                     11
                           Does the Evidence Support a Finding of Fraud?

                In his fourth issue on appeal, Aniekwu argues that there is Awoefully insufficient evidence to

show fraud.@ He also alleges that there is no evidence to support the various elements of fraud. We will

read Aniekwu=s argument liberally and address both the legal and factual sufficiency of the evidence

supporting the jury=s finding of fraud.

                The elements of fraud are: (1) a false material representation was made; (2) at the

time the representation was made, the speaker either knew the representation was false or

recklessly made it as a positive assertion despite having no knowledge of the truth; (3) the

speaker intended that the other party would rely on the representation; and (5) the other party

relied on the representation and suffered harm as a result. Johnson & Higgins of Tex., Inc. v.

Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998). A promise to perform an act in the

future amounts to fraud if the promise is made with the intention to deceive the other party and

with no intention of performing the promised act. Spoljaric v. Percival Tours, Inc., 708 S.W.2d

432, 434 (Tex. 1986). The promissor=s intent is determined at the time the representation is

made, but that intent may be inferred from the promissor=s behavior after making the

representation. Id. Intent is a question of fact Auniquely within the realm of the trier of fact

because it so depends upon the credibility of the witnesses and the weight to be given to their

testimony.@ Id.

                A promissor=s failure to perform, standing alone, is not evidence of a fraudulent

intent held at the time a promise is made, but that fact may be considered along with other facts to

                                                    12
find such intent. Id. at 435. Because fraudulent intent generally is not s usceptible to direct proof,

it usually is proven by circumstantial evidence. Id. A>Slight circumstantial evidence= of fraud,

when considered with the breach of a promise to perform, is sufficient to support a finding of

fraudulent intent.@ Id. (quoting Maulding v. Niemeyer, 241 S.W.2d 733, 738 (Tex. Civ. App.CEl

Paso 1951, orig. proceeding)). A party=s denial that he made the promise may indicate that he

never intended to perform. Spoljaric, 708 S.W.2d at 435; see also Stone v. Williams, 358 S.W.2d

151, 155 (Tex. Civ. App.CHouston 1962, writ ref=d n.r.e.) (AWhile a mere failure to perform is not

sufficient to prove the existence of an intention not to perform at the time the promise is made,

where the party allegedly making the promise denies making the promise, there is sufficient

evidence to support a finding that there was the absence of intention to perform when it was

made.@).

               Daniels testified that he believed he was entering into a partnership that would

involve working with Aniekwu on the nursing home project, the San Antonio project, and future

state contracts. McGee and Lindsey testified that Daniels believed he was partnering with

Aniekwu for the San Antonio project and future projects. Daniels abandoned his own landscaping

business and his moonlighting job at the convenience store to pursue the San Antonio project.

Daniels agreed to let Aniekwu roll Daniels=s earnings from the nursing home project into the San

Antonio project, helped Aniekwu in Laredo, and mowed the lawn of Aniekwu=s rental property.

After Aniekwu refused to buy Daniels a truck, Daniels repaired his own truck for use in the

project. Daniels paid for food, gas, and other project-related expenses, expecting to be repaid,


                                                 13
and used his credit to buy equipment and his business and personal contacts to staff the project.

Daniels testified that he was driven into severe financial difficulties when his relationship with

Aniekwu ended, eventually declaring bankruptcy. The evidence is legally sufficient to support the

jury=s findings that a false material representation was made and that Daniels relied on that

representation to his detriment.

               Although some of Daniels=s testimony indicated that he intended to keep his

business separate from Aniekwu=s, Daniels also testified repeatedly that he was led to believe

that he and Aniekwu had a partnership arrangement. Aniekwu denied that the arrangement was a

partnership, insisting that Daniels was merely a subcontractor hired to run the weed eater crew.

Aniekwu argues that Daniels was already in financial trouble when the San Antonio project began

to deteriorate. Aniekwu=s friend Williams likewise testified that Aniekwu did not tell Daniels that

their working arrangement was a partnership and that Daniels was not involved in the bidding

process other than giving a bid to subcontract the weed eater crew. Krauser testified that

Daniels=s crew fell behind early and did not perform well on the project. However, the jury heard

the conflicting evidence and found Daniels=s testimony more believable. The evidence is factually

sufficient to support the jury=s findings of material misrepresentations and Daniels=s detrimental

reliance on those misrepresentations.

               As for Aniekwu=s intent at the time he made representations about the future of his

business relationship with Daniels, Aniekwu denied making any such representations. Aniekwu

testified that Daniels did not wish to be paid for his troubles, but instead worked on the nursing


                                                14
home, Aniekwu=s rental property, and the San Antonio project either Aout of the goodness of his

heart@ or to learn the ins and outs of bidding on state contracts. However, Aniekwu also testified

that Daniels was not involved in the bidding process. The evidence is both legally and factually

sufficient to support a finding that Aniekwu promised Daniels an on-going business partnership to

obtain Daniels=s labor, contacts, and financial assistance and, when coupled with Aniekwu=s denial

of such promises and his subsequent behavior, is legally and factually sufficient to support a

finding of fraudulent intent. See Spoljaric, 708 S.W.2d at 435. We may not substitute our

judgment for the jury=s determination of this issue, which rests so heavily on the credibility of

Daniels and Aniekwu and their witnesses. Id. at 434. We overrule Aniekwu=s fourth issue on

appeal.




                                               15
                Does the Evidence Support the Consequential Damages Award?

                Aniekwu asserts that there is no evidence to support the jury=s award of $60,000 in

consequential damages for fraud.3

                Under common law, actual damages can be either Adirect@ or Aconsequential.@

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997). Direct damages

flow directly from and are the necessary and usual result of a defendant=s wrongful act. Id.

Consequential damages are the natural but not necessary results of a defendant=s wrongdoing.

Id. Consequential damages must be foreseeable and directly traceable to and resulting from the

wrong, but they need not be the usual result of the wrong. Id. Further, damages for loss of credit

may be recovered if that harm is the usual or probable result of the defendant=s wrongful conduct.

Connell Chevrolet Co. v. Leak, 967 S.W.2d 888, 892 (Tex. App.CAustin 1998, no pet.). Loss of

credit is compensable if a plaintiff is denied a loan or charged a higher interest rate. Id.

Damages for loss of credit may not be clearly ascertainable, and the Adetermination of the

amount is necessarily lodged in the discretion of the jury.@ Id. Lost profits may also be

recovered in a fraud suit. GTE Mobilnet of S. Tex. Ltd. P=ship v. Telecell Cellular, Inc., 955

S.W.2d 286, 294 (Tex. App.CHouston [1st Dist.] 1997, writ denied); see Trenholm v. Ratcliff, 646

S.W.2d 927, 933 (Tex. 1983).


        3
        Aniekwu does not complain that the evidence is factually insufficient to support the consequential
damages award.




                                                   16
                According to McGee, Aniekwu and Daniels together charged the weed eaters to

Daniels=s business account. Daniels testified that he told Aniekwu repeatedly that he needed money to

pay bills, buy food and gas, and continue working on the project. Daniels testified that he left several

messages for Aniekwu, eventually informing Aniekwu of his bankruptcy. As a result of his bankruptcy,

Daniels was unable to refinance his home. Although Aniekwu argues that Daniels was in dire financial straits

before beginning to work with Aniekwu, Daniels testified that before dealing with Aniekwu, he was Adoing

good@ financially and his fledgling landscaping business was growing. As a result of his dealings with

Aniekwu, Daniels abandoned his own landscaping business. The evidence supports a conclusion that

Daniels=s difficulties were brought on, or at least exacerbated by, his failed dealings with Aniekwu. Further,

Daniels believed that he was to be Aniekwu=s partner, sharing in the proceeds of the San Antonio project,

and presumably participating in future projects. Of the $44,000 paid for the first cycle and between

$275,000 and $400,000 paid for the entire project, Daniels received a mere $400; Aniekwu has since been

awarded a second TxDOT contract, worth $300,000. Daniels was never paid for his work on the nursing

home project, his assistance in Laredo, or his work maintaining Aniekwu=s rental property. The evidence is

legally sufficient to support the jury=s award of $60,000 in consequential damages as a result of Aniekwu=s

fraud. We overrule Aniekwu=s challenge to the evidence supporting the award of consequential

damages.


                   Does the Evidence Support an Award of Punitive Damages?




                                                     17
                In his sixth issue, Aniekwu argues that there is no evidence to support the jury=s

award of exemplary damages because there is insufficient evidence to support the finding of fraud

or malice. AA finding of intent to harm or conscious indifference to the rights of others will

support an award of exemplary damages.@ Spoljaric, 708 S.W.2d at 436 (citing Trenholm, 646

S.W.2d at 933). A finding of Asome evidence@ of a fraudulent intent is Asome evidence of

conscious indifference@ and will support a jury=s award of exemplary damages. Id.; see Trenholm,

646 S.W.2d at 933. Here, as discussed earlier, the evidence is sufficient to support the jury=s

finding that Aniekwu committed fraud. Thus, there is Asome evidence@ to support the jury=s

award of $50,000 in exemplary damages. See Spoljaric, 708 S.W.2d at 436. Although Aniekwu

does not raise this contention, we further note that the award is not so excessive as to be

unreasonable. See Foley v. Parlier, 68 S.W.3d 870, 881-82 (Tex. App.CFort Worth 2002, no pet.)

(in examining reasonableness of exemplary damage award, amount of which Arests largely in the

discretion of the jury,@ courts should consider nature and character of wrong, degree of

culpability, situations of parties, and Apublic sense of justice and propriety@). We overrule

Aniekwu=s sixth issue on appeal.4


                Does the Evidence Support the Award for Conversion Damages?

                Aniekwu=s fifth issue, in its entirety, reads as follows:


        4
          Aniekwu also asserts that the evidence does not support the jury=s award of attorney=s fees.
Although the jury found that Daniels was entitled to recover $41,000 plus further appellate attorney=s fees,
Daniels did not request and the judgment does not award attorney=s fees.


                                                    18
       V. There is insufficient evidence to support the jury=s findings of appellant=s
          exercise of control over the appellee=s property a fiduciary duty and resulting
          breach of a fiduciary meriting damages

               There is no evidence to support the answer to question 16. There is insufficient
       evidence to support the answer to question 17 in that the precursors have not been proven.
        Daniels showed neither fraud nor malice with the evidence that he presented.


               This issue is not properly briefed. Aniekwu does not include any reference to the record or

to any authority, nor does he explain how the jury=s answers were improper or lacked support in the

evidence. See Tex. R. App. P. 38.1 (appellant=s brief must contain Aclear and concise argument@ with

Aappropriate citations to authorities and to the record@); Trenholm, 646 S.W.2d at 934 (APoints of error

must be supported by argument and authorities, and if not so supported, the points are waived.@).

Aniekwu does not explain how the jury=s award of conversion damages (question 16) is erroneous

or what Aprecursors@ are lacking. By his failure to properly brief this issue, Aniekwu has waived

this issue on appeal. See Trenholm, 646 S.W.2d at 934. Further, we have held that the evidence

supports the jury=s finding that Daniels was harmed by Aniekwu=s fraud or malice (question 17).

We overrule Aniekwu=s fifth issue.


                             Aniekwu=s Remaining Sufficiency Issues

               In his seventh issue on appeal, Aniekwu argues that his motion for JNOV should

have been granted because the evidence does not support a finding of a fiduciary duty or fraud,

and in his first three issues, he argues that there is no evidence to support the jury=s finding that

he entered into a partnership with Daniels or that he owed and breached a fiduciary duty or a duty


                                                  19
of care or loyalty. However, Daniels elected to recover under his fraud and conversion causes of

action, and due to our determination that the evidence is sufficient to support the jury=s findings

related to fraud, we need not address Aniekwu=s first, second, third, and seventh issues.


                                     Exclusion of Testimony

               Finally, we address Aniekwu=s eighth issue, in which he contends that the trial court

committed reversible error when it granted Daniels=s motion in limine relating to documents and

testimony regarding Aniekwu=s financial situation. Because Aniekwu failed to produce any

documentation related to the expenses he incurred as a result of the project, the trial court barred

him from testifying about those alleged expenses and instructed the jury to presume that any

Aevidence regarding the value of the alleged partnership@ would have been unfavorable to

Aniekwu.

               The admission and exclusion of evidence is left to a trial court=s sound discretion.

City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its

discretion if it acts without regard to any guiding principles or rules. Id. at 754. If a trial court

finds that a party has negligently or intentionally allowed the spoliation of evidence, the court has

broad discretion in imposing sanctions, ranging from a jury instruction to so-called Adeath

penalty@ sanctions. Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998); Offshore Pipelines, Inc.

v. Schooley, 984 S.W.2d 654, 666 (Tex. App.CHouston [1st Dist.] 1998, no pet.). A party seeking

to reverse a judgment based on a trial court=s exclusion of evidence must show that the exclusion

was erroneous and that the error was Areasonably calculated to cause and probably did cause



                                                 20
rendition of an improper judgment.@ McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).

Although the complaining party need not prove that Abut for@ the erroneous exclusion the

judgment would have been different, a successful challenge usually requires the complaining party

to show that the judgment turns on the excluded evidence. Alvarado, 897 S.W.2d at 753-54. We

review the entire record in making that determination. McCraw, 828 S.W.2d at 758.

               Outside the jury=s presence, Aniekwu attempted to explain how he came to lose his

records related to the landscaping business. For much of the time in question, Aniekwu operated

a hotel gift shop in addition to his landscaping business. Aniekwu kept his business records

related to the landscaping business in the gift shop and when the shop was closed, he neglected to

retrieve the records. The records were left in the hotel=s possession for an extended period of

time, perhaps as long as two years. Aniekwu testified that the hotel changed ownership, and he

was told that his records and other property had been moved into storage and that the hotel

Awant[ed] me to come and remove my items or goods.@ Despite being informed that his property

would be stored for only ten days, Aniekwu did not retrieve his records but referred the hotel to

his attorney, presumably because he had disputes with the hotel related to the gift shop. 5

Aniekwu was ordered by the trial court to produce numerous business documents. He produced

tax returns prepared by a third party and a financial statement, but did not produce receipts,


       5
         Aniekwu further alleges that the law firm representing Daniels also represented the hotel
and that Daniels was able to Atake undue advantage of unavailable records which are in control of
the Dallas office@ of Daniels=s law firm. Other than Aniekwu=s allegations, there is no indication
in the record that Daniels=s attorney was in any way involved in the hotel=s business or the
retention or destruction of Aniekwu=s records.

                                               21
underlying contracts, bids, or records of employee or subcontractor payments, arguing that he

could not produce them because he did not have them in his possession. Aniekwu explained that he

Aestimated@ his business expenses and income but had no records to verify his recollections or estimates.

Aniekwu testified that he incurred substantial debt, in excess of $100,000, for equipment and

expenses for the San Antonio project; he still owned equipment bought with the borrowed money.

                 Having reviewed the entire record, we hold the trial court acted within its discretion

in excluding evidence that Aniekwu, through neglect or willful conduct, allowed to be lost. See

Trevino, 969 S.W.2d at 953; Schooley, 984 S.W.2d at 666. Further, Aniekwu has not shown that

the jury=s verdict turned on the excluded evidence. See Alvarado, 897 S.W.2d at 753-54. We

overrule his eighth issue.

                 Having overruled Aniekwu=s issues on appeal, we affirm the trial court=s judgment.




                                                __________________________________________

                                                Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: October 24, 2002

Do Not Publish




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