author:
ALMA L. LÓPEZ, Chief Justice.
      PHYLIS J. SPEEDLIN, Justice,

text:
    Ernesto Camilo TAGLE and Triple R Trucking, Inc., Appellants, v. Ricardo GALVAN, Appellee.
    No. 04-03-00673-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 1, 2004.

      Paul A. Bezney, Tracy L. Stoker, Dodge, Anderson, Jones, Bezney & Gillman, P.C., Dallas, G. Allen Ramirez, Ramirez & Garza, L.L.P., Rio Grande City, for appellants.
    Timothy Patton, Timothy Patton, P.C., San Antonio, Michael M. De Shetler, De Shetler Law Firm, Corpus Christi, for ap-pellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice, concurring in the judgment, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

Ernesto Camilo Tagle and Triple R Trucking, Inc. appeal the trial court’s judgment awarding Ricardo Galvan the sum of $2,000,000.00 for damages sustained in a motor vehicle accident. The damages were awarded after a bench trial in which Tagle and Triple R judicially admitted legal liability. Tagle and Triple R present five issues on appeal, contending: (1) the trial court erred in making a broad-form damage finding and in failing to enter additional findings as to each separate damage element; (2) the trial court erred in allowing one of Galvan’s treating physicians to testify regarding future medical expenses; (3) the evidence is legally and factually insufficient to support the amount of damages awarded; (4) the trial court erred in not suggesting a remittitur; and (5) the trial court erred in calculating and awarding pre-judgment interest. We affirm the trial court’s judgment.

Background

On January 11, 2000, Galvan was injured in an automobile accident. Tagle was driving an 18-wheel truck in the course of his employment with Triple R. Tagle admitted that he pressed the accelerator when he intended to press the brake. After the accident, Galvan was temporarily unconscious. When he regained consciousness, Galvan realized his car was on fire. Gal-van struggled to open his door. When Galvan was able to open his door, he was unable to walk away from the car because of his injuries. Tagle assisted Galvan away from the car.

Galvan was taken by ambulance to the hospital where various x-rays were taken revealing that his ankle was broken. No x-ray was taken of Galvan’s lower back. The hospital gave Galvan pain medication and released him with instructions to follow-up with his family doctor. Galvan was taken to Triple R’s company doctor, who reported that Galvan had not sustained any serious injury and released Galvan to return to work with modified duty.

The record is unclear when Galvan had his initial visit with Dr. Mario Jiminez or Dr. Porfirio Rodriguez, who both work with the Family Health Center. These doctors appear to be Galvan’s family doctors. The record contains a notation regarding an office visit on February 7, 2000, which is signed by Dr. Rodriguez. The plan contained in the notation states, “Continue with therapy. RTC in 1 week. Tentatively he may be able to return to [work] next week depending on progress we see in the arm.”

Two days after the accident, Galvan began physical therapy treatment with Dr. Louis Patino. Dr. Patino’s assessments vary from “slight improvement” to “no change” to “slight worsening.” In March of 2000, Dr. Patino recommended an MRI. The radiologist, Dr. Kenneth Legendre, diagnosed Galvan’s MRI as showing a disc herniation between the L4 and L5 spinal region. Dr. Patino referred Galvan to Dr. Jorge Tijmes, an orthopedic surgeon.

Dr. Tijmes examined Galvan on June 13, 2000. Dr. Tijmes noted Dr. Legendre’s report and diagnosed Galvan as having neck pain, low back pain, and right leg radiculopathy. Dr. Tijmes reported that Galvan was a surgical candidate for lumbar laminectomy with fusion. Galvan was to continue his medications and to return in two weeks. Dr. Tijmes continued to follow Galvan’s progression through his physical therapy.

Contrary to Dr. Tijmes’s instructions, Galvan discontinued his physical therapy in August of 2000. Galvan testified at trial that he had economic and transportation difficulties.

In September of 2000, Dr. Tijmes released Galvan to modified duty; however, Dr. Tijmes stated that Galvan remained a candidate for a lumbar laminectomy and fusion of L4-L5. In October of 2000, Dr. Tijmes sent Galvan’s attorney a letter of medical necessity, stating that Galvan was in need of lumbar surgery. Prior to the surgery, Galvan obtained a second opinion from Dr. Ernest Roman, who did not contradict Dr. Tijmes’s assessment. The surgical procedure was performed in December of 2000.

In February of 2001, Galvan was referred back to Dr. Patino for physical therapy. Dr. Tijmes released Galvan for light duty in April of 2001.

Galvan sued Tagle and Triple R for damages resulting from the accident. The case was initially tried to a jury; however, a mistrial was declared. The case was subsequently tried to the bench, and a judgment was entered awarding Galvan $2,000,000.00 in actual damages, and $507,399.30 in prejudgment interest.

BROad-Fokm Damage Finding

In their first issue, Tagle and Triple R contend the trial court erred in making a broad-form finding of $2,000,000 in actual damages, and in failing to make additional findings of fact which would have separated each element of Galvan’s damages. Ta-gle and Triple R assert that the trial court’s errors prevented them from adequately presenting them appeal. Tagle and Triple R liken the broad-form submission in this case to the improper submission of a single broad-form damage issue to a jury when one of the damage elements the jury is instructed to consider is not supported by evidence. Tagle and Triple R cite Harris County v. Smith, 96 S.W.3d 230, 233-34 (Tex.2002), in support of their position.

In Harris County v. Smith, the issue presented was “whether the trial court committed harmful error by submitting a broad-form question on damages that included an element without any evidentiary support.” Id. at 231. The jury charge in question submitted two broad-form damage questions as to two separate plaintiffs. Id. The jury was then instructed to consider several elements of damages in answering the questions. Id. at 231-32. On appeal, the court of appeals agreed that the trial court erred in including a certain element of damages that was unsupported by the evidence in each instruction, but “concluded that the error was harmless because there was ample evidence on properly submitted elements of damage to support the jury’s awards to both plaintiffs.” Id. at 232. In reaching its decision, the court of appeals relied on the Texas Supreme Court’s decision in Thomas v. Oldham, 895 S.W.2d 352 (Tex.1995), and distinguished the holding in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000). The Texas Supreme Court reversed, concluding that the Harris County case was closer to Casteel than to Thomas. The primary focus of the Texas Supreme Court’s analysis in distinguishing its decisions in Thomas and Casteel was preservation of error.

In Thomas, the defendant did not object to the submission of a broad-form damage question in which the jury was instructed to consider five separate damage elements. See Harris County, 96 S.W.3d at 232. On appeal, the defendant attempted to rely on notations made by the jury in the margin next to the five elements of damage to attack the sufficiency of the evidence to support the amounts noted. Thomas, 895 S.W.2d at 359. The Texas Supreme Court held that the jury margin notations were not separate damage awards for purposes of evidentiary review. Id. at 359. The court further held that because the defendant did not ask for separate damage findings, it could only challenge the “sufficiency of the evidence supporting the whole verdict.” Id. at 360; see also Harris County, 96 S.W.3d at 232.

In Casteel, however, the defendant timely objected to the submission of a broad-form liability question instructing the jury on thirteen separate liability theories. 22 S.W.3d at 387. The basis of the defendant’s objection was that the plaintiff did not have standing to pursue any DTPA liability theory based on article 21.21 of the Texas Insurance Code. Id. The Texas Supreme Court determined that the broad-form question was erroneous because it commingled valid and invalid liability theories. Id. at 388. The court then held that the error was harmful because it could not be determined whether the improperly submitted theories formed the sole basis of the jury’s finding. Id. at 389.

After distinguishing between its decisions in Thomas and Casteel, the Texas Supreme Court noted in the Hams County case that Harris County did object to the charge. 96 S.W.3d at 232. The court observed:

Harris County pointed out to the trial court that particular elements of damage had no support in the evidence and should not be included in the broad-form question. The objection was timely and specific. It was also correct, and the trial court clearly erred when it did not sustain the objection and correct the charge.

Id, The court concluded:

A litigant should not be powerless to require the trial court to fulfill its duty of submitting only those questions and instructions having support in the pleadings and evidence. A timely objection, plainly informing the court that a specific element of damages should not be included in a broad-form question because there is no evidence to support its submission, therefore preserves error for appellate review. We hold that Cas-teel’s reasoning applies equally to broad-form damage questions, and under its rationale we conclude that the charge error in this case was harmful.

Id. at 236 (citations omitted).

The question presented in this case is how does the holding in Hams County apply in the context of a bench trial? If a defendant believes a specific element of damages presented for the trial court’s consideration is not supported by sufficient evidence, how does the defendant preserve error with regard to the court’s consideration of that element? How does the defendant preserve its ability to challenge the sufficiency of the evidence to support specific damage findings rather than being limited to a Thomas challenge to the sufficiency of the evidence supporting the whole verdict?

Tagle and Triple R contend they preserved error by filing a request for additional or amended findings of fact. We agree that a properly prepared request for findings or additional findings specifically drawing a trial court’s attention to the Harris County/Casteel problem will likely be sufficient to preserve error. In this ease, however, Tagle and Triple R only requested additional findings that: (1) appellee sustained lost wages in the amount of $14,297.00; and (2) appellee incurred reasonable and necessary past medical expenses in the amount of $56,232.96. The requested additional findings did not specifically draw the trial court’s attention to any complaint that one of the elements of damages included in its broad-form finding was unsupported by the evidence. Accordingly, Tagle and Triple R waived any complaint regarding the sufficiency of the evidence to support separate damage findings and are limited to a Thomas challenge to the sufficiency of the evidence supporting the $2,000,000 damage award as a whole.

Testimony of Dr. Mario Jiminez

In their second issue, Tagle and Triple R contend that the trial court erred in admitting the testimony of Dr. Mario Jiminez because he was not properly designated or qualified to testify with regard to future medical expenses. We do not decide whether the trial court abused its discretion in admitting the testimony because even if the trial court erred, the error was harmless for several reasons.

First, the trial was to the bench, and the trial judge repeatedly stated that although he was admitting the testimony, he would later determine the weight it should be given. Dr. Jiminez testified that Galvan’s future medical expenses would be $200,000 to $300,000 a year for the first four or five years and then $100,000 to $150,000 beginning in years four of five for the rest of his life. Given the amount of damages awarded, it would not appeal’ that the trial court gave Dr. Jiminez’s testimony significant weight. In addition, assuming Tagle and Triple R are correct that Dr. Jiminez’s testimony was not competent evidence, an appellate court generally assumes that the trial court disregarded any incompetent evidence in a case tried to the court. Gillespie v. Gillespie, 644 S.W.2d 449, 450 (Tex.1982); Great Global Assur. Co. v. Keltex Properties, Inc., 904 S.W.2d 771, 777-778 (Tex.App.-Corpus Christi 1995, no writ). Furthermore, Texas follows the “reasonable probability” rule for future damage for personal injuries. See City of San Antonio v. Vela, 762 S.W.2d 314, 320 (Tex.App.-San Antonio 1988, writ denied). As a result, an award of future medical expenses is a matter primarily for the trier of fact to determine, and no precise evidence is required. Id. The trier of fact may base its award on the nature of the injuries, the medical care rendered before trial, and the condition of the injured party at the time of trial. Id. In order to “sustain a finding on future medical expenses, the plaintiff is not required to establish the future medical consequences of his injury by expert medical testimony grounded on ‘reasonable medical probability.’ ” Id. Accordingly, the trial court could have awarded damages for future medical expenses independent of Dr. Jiminez’s testimony, and because error was not preserved with regard to the separate damage elements, we are not required to consider the sufficiency of the evidence to support future medical expenses as a separate damage element. Finally, Texas courts have concluded that the potentially prejudicial influence on juries of an “expert,” whose testimony fails to satisfy Robinson reliability standards, is significantly less of a concern when the trial judge is the factfinder. See National Western Life Ins. Co. v. Rowe, 86 S.W.3d 285, 302-303 (Tex.App.-Austin 2002, pet. filed); Olin Corp. v. Smith, 990 S.W.2d 789, 796 n. 1 (Tex.App.-Austin 1999, pet. denied). For these reasons, we hold that any error in admitting Dr. Jiminez’s testimony was harmless.

Sufficiency of the Evidence and Remittitur

The trial judge entered findings of fact and conclusions of law. The trial court’s findings of fact carry the same force and dignity as a jury’s verdict. M.D. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991); McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138 S.W.3d 24, 27 (Tex.App.-San Antonio 2004, no pet.). We review the trial court’s fact findings the same way we review the legal and factual sufficiency of the evidence supporting a jury’s verdict. M.D. Anderson, 806 S.W.2d at 794, McLaughlin, Inc., 138 S.W.3d at 27.

In analyzing the legal sufficiency of the evidence supporting a finding of fact, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994), McLaughlin, Inc., 138 S.W.3d at 27. If there is more than a scintilla of evidence to support the findings, the legal sufficiency challenge cannot be sustained. Catalina, 881 S.W.2d at 297; McLaughlin, Inc., 138 S.W.3d at 27.

When analyzing the factual sufficiency of the evidence, we consider all of the evidence in the record both for and against the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); McLaughlin, Inc., 138 S.W.3d at 27. We will find the evidence factually insufficient if we conclude the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; McLaughlin, Inc., 138 S.W.3d at 27. As the trier of fact in a bench trial, the trial judge determines the credibility of the witnesses and the weight to be given their testimony, decides whether to believe or disbelieve all or any part of the testimony, and resolves any inconsistencies in the testimony. Lifshutz v. Lifshutz, 61 S.W.3d 511, 515 (Tex.App.-San Antonio 2001, pet. denied). When there is conflicting evidence, the appellate court usually regards the finding of the trier of fact as conclusive. Id.

In their third issue, Tagle and Triple R challenge the legal and factual sufficiency of the evidence to support the award of $2,000,000.00 in damages. Although Tagle and Triple R frame their fourth issue as challenging the trial court’s failure to suggest a remittitur, Tagle and Triple R request that this court suggest a remittitur to $500,000 in lieu of a remand if we determine the evidence is factually insufficient.

The trial court entered the following finding regarding the damage award:

That Two Million Dollars ($2,000,000.00) is the sum of money that reasonably and fairly compensates Ricardo Galvan for his injuries that were proximately caused by the incident made the basis of this suit, and that such compensation is awarded upon the Court’s consideration of Ricardo Galvan’s physical pain and suffering (past and future), mental anguish (past and future), loss of physical capacity (past and future), reasonable and necessary medical expenses incurred (past and future), and loss of wage earning capacity (past and future).

Because Tagle and Triple R are limited to challenging the sufficiency of the evidence to support the damage award as a whole, we need not decide if the evidence is sufficient to support each damage element. Therefore, although we will separately set forth the standard regarding each damage element, we discuss the evidence separately as a whole.

A. Legal Standards for Separate Damage Awards

1. Physical Pain and Suffering (Past and Future)

In assessing personal injury damages, the jury has wide latitude in determining the amount of the award. Southwest Texas Coors, Inc. v. Morales, 948 S.W.2d 948, 951 (Tex.App.-San Antonio 1997, no pet.). The process of awarding damages for amorphous, discretionary injuries such as pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss. Dawson v. Briggs, 107 S.W.3d 739, 750 (Tex.App.-Fort Worth 2003, no pet.). The element of pain and suffering is not subject to precise mathematical calculations or objective analysis and is particularly within the province of the jury to resolve and to determine appropriate amounts. Dawson, 107 S.W.3d at 750-51; Morales, 948 S.W.2d at 951-52.

2. Mental Anguish (Past and Future)

To support an award of mental anguish, a party must present either direct evidence of the nature, duration, and severity of her mental anguish, thereby establishing a substantial interruption in her daily routine, or circumstantial evidence of a high degree of mental pain and distress that is greater in degree than mere worry, anxiety, vexation, embarrassment, or anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995); Minnesota Life Ins. Co. v. Vasquez, 133 S.W.3d 320, 324 (Tex.App.-Corpus Christi 2004, pet. filed). The process of awarding damages for amorphous, discretionary injuries such as mental anguish is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss. Dawson, 107 S.W.3d at 750. Mental anguish can be established through testimony from the injured party explaining how she felt and how her life was disrupted. Minnesota Life Ins. Co. v. Vasquez, 133 S.W.3d at 324.

3. Loss of Physical Capacity (Past and Future)

The effect of any physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages, or diminished earning capacity. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d at 772; Patlyek v. Brittain, 149 S.W.3d 781, 785 (Tex.App.Austin 2004, pet. filed). To recover damages for physical impairment, the plaintiff must show: (1) he incurred injuries that are distinct from, or extend beyond, injuries compensable as pain and suffering, loss of earning capacity, or other damage elements; and (2) these distinct injuries have had a “substantial” effect. Patlyek v. Brittain, 149 S.W.3d at 785.

4. Reasonable and Necessary Medical Expenses Incurred (Past and Future)

Texas follows the “reasonable probability” rule for future damage for personal injuries. See City of San Antonio v. Vela, 762 S.W.2d 314, 320 (Tex.App.San Antonio 1988, writ denied). As a result, an award of future medical expenses is a matter primarily for the trier of fact to determine, and no precise evidence is required. Id. The trier of fact may base its award on the nature of the injuries, the medical care rendered before trial, and the condition of the injured party at the time of trial. Id. In order to “sustain a finding on future medical expenses, the plaintiff is not required to establish the future medical consequences of his injury by expert medical testimony grounded on ‘reasonable medical probability.’ ” Id.

5.Loss of Wage Earning Capacity (Past and Future)

Loss of future earning capacity is the plaintiffs diminished capacity to earn a living after the trial. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35 (Tex.App.-Tyler 2003, no pet.); Dawson, 107 S.W.3d at 750. Because the amount of money a plaintiff might earn in the future is always uncertain, the jury has considerable discretion in determining the amount. Plainview Motels, Inc., 127 S.W.3d at 35; Dawson, 107 S.W.3d at 750. To support an award of damages for loss of future earning capacity, the plaintiff must introduce evidence sufficient to allow the jury to reasonably measure earning capacity in monetary terms. Plainview Motels, Inc., 127 S.W.3d at 35-36. To support an award of damages for loss of future earning capacity, the plaintiff can introduce evidence of past earnings; the plaintiffs stamina, efficiency, and ability to work with pain; the weaknesses and degenerative changes that will naturally result from the plaintiffs injury; and the plaintiffs work-life expectancy. Plainview Motels, Inc., 127 S.W.3d at 36; Dawson, 107 S.W.3d at 750. There must be some evidence that the plaintiff had the capacity to work prior to the injury, and that his capacity was impaired as a result of the injury. Plainview Motels, Inc., 127 S.W.3d at 36.

B. Sufficiency of the Evidence

The medical records from Dr. Patino contain numerous references to Galvan’s subjective reporting of severe pain. Although at times Galvan reported the severity of his pain had improved, in other instances, he reported no change or slight worsening. The medical records contain objective assessments based on Dr. Pati-no’s examinations regarding tenderness and discomfort. Dr. Patino reported on various occasions that Galvan experienced pain during the palpation of Galvan’s lumbar region. Dr. Tijmes reports also contain references to Galvan’s reported pain. Finally, the medical records reference the various prescriptions Galvan was given to alleviate his pain.

Dr. Tijmes testified that when he first examined Galvan, Galvan complained of pain to the neck radiating to the right shoulder, right arm, and some numbing sensation to the right hand. Galvan also had increased pain to the low back and to the right foot and right leg. Dr. Tijmes testified that Galvan will permanently have residual pain.

Galvan testified that after the accident, he was hurting all over. He reported that he was in intense pain. After the operation, Galvan stated that he continued to have pain and that he hurts when he bends down. Galvan stated that the pain prevents him from sleeping.

Galvan testified that he was depressed because he was no longer able to help his family and support them like he could before the accident. He testified that he felt like he was dragging his family backward. Galvan stated that he was taking antidepressants and wished that he had the resources to get more psychological help through therapists. Dr. Jiminez testified that the psychological component for a 26 year old to have chronic pain “is probably the most difficult part.” Dr. Jim-inez explained, “because one at that point has to change their entire way of how things are done and learn how to cope with that, uh, limitation, with that disability.” Dr. Jiminez stated that he had prescribed the antidepressant Zoloft for Galvan and believed that Galvan would require additional prescriptions of antidepressants in the future and that at some point Galvan would need intense psychological therapy.

Evidence was presented regarding the on-going restrictions imposed on Galvan’s activities, including bending and lifting. Dr. Tijmes testified that Galvan will continue to have decreased mobility and ability. Dr. Tijmes testified that Galvan will be impaired in the amount of weight he can lift.

Evidence was presented regarding the nature of Galvan’s injuries and his medical care. The bill§ for the medical expenses Galvan incurred were introduced into evidence. Galvan also testified that he continued to have pain after his operation.

Dr. Tijmes testified regarding the need for the surgical procedure and that the costs were reasonable and necessary. Although Dr. Dozier and Dr. Nowlin, the experts presented by Tagle and Triple R, disagreed with Dr. Tijmes’s diagnosis, Dr. Legendre agreed that a disc herniation was present. In addition, Dr. Tijmes testified that during the. surgical procedure, he visually saw that the disc was ruptured between the L4 and L5 spinal region. Dr. Tijmes also testified that the fusion that was performed would likely cause instability between the L3 and L4 spinal region and between the L5 and SI spinal region.

Galvan’s paystubs immediately prior to the accident were introduced into evidence. The economist for Galvan provided a table that would enable the trial court to calculate the present value of Galvan’s loss of wage earning capacity if the trial court determined that Galvan had such a loss; however, Galvan’s economist did not testify that Galvan had diminished earning capacity. Although Dr. Tijmes agreed that Gal-van could perform certain jobs, Dr. Tijmes stated that Galvan was not likely employable given that he would be required to disclose the restrictions on his ability to perform work and the competition in the workforce against unimpaired workers.

Tagle and Triple R presented the testimony of a vocational rehabilitation counsel- or, Shelly Eike, who testified regarding the categories of jobs Galvan could perform and the number of vacancies in those categories. Tagle and Triple R also presented the testimony of an economist, Helen Reynolds, who testified that Galvan’s past loss of wage earning capacity was approximately $8,000 between the date of the accident and the date he was released for light duty in September of 2000, and an additional $5,500 from the date of the surgery until Galvan was released for light duty in April of 2001. Reynolds also testified that if it were determined that Galvan would be unable to obtain employment from the first date he was released from light duty in September of 2000 until the date of his surgery in December of 2000, the past loss of wage earning capacity would be approximately $4,500. Reynolds testified that Galvan did not have any loss of future earning capacity.

Having reviewed all of the evidence, we hold that the evidence is legally and factually sufficient to support the damage award as a whole.

Prejudgment Interest

In their last issue, Tagle and Triple R contend that the trial court erred in calculating the prejudgment interest. Specifically, they contend that prejudgment interest should not have accrued from the date the mistrial was declared in the first trial through the conclusion of the bench trial because Galvan was responsible for the mistrial. Tagle and Triple R also contend that prejudgment interest should not have accrued from the date of the bench trial through the date the trial court signed the judgment because they were not responsible for the trial court’s delay. Galvan responds that prejudgment interest properly accrued because he was not responsible for the mistrial or the trial court’s delay.

The award of prejudgment interest during periods of delay is left to the discretion of the trial court. Helena Chem. Co. v. Wilkins, 18 S.W.3d 744, 760 (Tex.App.-San Antonio 2000), aff'd, 47 S.W.3d 486 (Tex.2001). The trial court is authorized to deny prejudgment interest based on periods of delay caused by a claimant; however, the trial court is not authorized to deny prejudgment interest based on delay attributed to the court’s crowded docket. Purcell Const., Inc. v. Welch, 17 S.W.3d 398, 403 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Even if a claimant causes a period of delay, the trial court is not required to deny prejudgment interest because the decision is entirely within the trial court’s discretion. Wilkins, 18 S.W.3d at 760; Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225, 243 (Tex.App.-San Antonio 2001, pet. denied).

In this case, the record does not show that the period of delay between the date of the bench trial through the date the trial court signed the judgment was caused by the claimant. Just as the trial court is not authorized to deny prejudgment interest based on delay attributed to the court’s crowded docket, the trial court should not be authorized to deny prejudgment interest based on a delay by the trial court in signing a judgment. See Welch, 17 S.W.3d at 403.

With regard to the mistrial, having reviewed the reporter’s record from the first trial, it appears that the attorneys engaged in a series of disagreements over various legal issues shortly after beginning the trial. The attorneys engaged in a prolonged discussion with the trial court at the bench off-the-record regarding the introduction of the report of the DPS trooper who investigated the accident. When Tagle was called as a witness, the attorneys disagreed regarding whether prior pleadings and interrogatory answers were admissible to impeach his testimony that he always accepted responsibility for the accident. Galvan’s attorneys contended that Galvan was entitled to show the jury that Tagle initially denied liability, but Ta-gle’s attorney contended that amended pleadings and amended interrogatory answers were not admissible. From the record, it appears that opening arguments, the limited questioning, and the extensive discussions had taken two hours. After an extended discussion outside the jury’s presence, Galvan’s attorney asked if he could “continue on his answers to interrogatories”, and the trial judge stated, “You may. Whatever.” When Galvan’s attorney proceeded to question Tagle regarding the inconsistency between his admission of liability in court and his denial of responsibility in his initial interrogatory responses, Tagle’s attorney objected, stating that the court had previously sustained his objection to that line of questioning. Galvan’s attorney responded, “I thought we were talking about the pleadings then. That’s why I asked permission to go forward on the interrogatory.” After this exchange, the trial court declared a mistrial, stating:

THE COURT: People, I have to do what I have to do. And, uh, members of the, uh — you may be seated, uh, Mr. Allison. We’re, uh, running into a problem members of the Jury. And, uh, sometimes some of these problems cannot be resolved, because of the fact that, uh, you may have been exposed to information or you may have heard from sitting in the Jury room, discussions that have taken place here inside the courtroom, since the Jury room is so close to the, uh, courtroom itself. I have given, uh, the matter considerable thought and under the circumstances, I am going to have [to] grant the Defendant’s Motion for a Mistrial....

The trial judge, who was present at the time and had a better understanding of his reasons for granting the mistrial, may have believed the mistrial was necessary based on the manner in which the issues were pursued by both attorneys, not just Galvan’s attorney. Furthermore, even if the trial judge believed that the actions by Galvan’s attorney were the cause of the mistrial, the trial judge may not have believed that the delay between the mistrial and the bench trial was caused by Galvan but was caused by docketing concerns. Accordingly, the record does not support a finding that the trial court abused its discretion in accruing prejudgment interest from the date the lawsuit was filed through the date of the final judgment.

Conclusion

The trial court’s judgment is affirmed.

SARAH B. DUNCAN, Justice, concurred in the judgment.

Concurring opinion by PHYLIS J. SPEEDLIN, Justice.

PHYLIS J. SPEEDLIN, Justice,

concurring.

I concur in the judgment only, because I agree with the majority’s conclusion that Tagle and Triple R did not make the trial court aware in a timely and plain manner that they were requesting separate damage awards for purposes of evidentiary review. See Harris County v. Smith, 96 S.W.3d 230, 236 (Tex.2002). Since we do not know what amount the trial court awarded for any of the ten damage elements included in the two million dollar award, a meaningful review of the sufficiency of the evidence is extremely difficult. Greater Houston Transp. Co., Inc. v. Zrubeck, 850 S.W.2d 579, 589 (Tex.App.Corpus Christi 1993, writ denied). In light of this record and the evidence presented, I agree with the majority’s conclusion that the evidence is legally and factually sufficient to support the damage award.

I write separately because of the majority’s heavy reliance on City of San Antonio v. Vela, 762 S.W.2d 314 (Tex.App.-San Antonio 1988, writ denied). As Chief Justice Cadena cautioned in his dissent in Vela, no Texas court has ever upheld an award of future medical expenses “where there is no evidence whatsoever concerning the need for future medical attention nor the reasonable cost of such attention.” Id. at 323 (Cadena, C.J., dissenting). Texas instead follows the “reasonable probability rule,” which in this context simply means that evidence must be presented that damages would “reasonably and probably result from the injury sustained.” Fisher v. Coastal Transp. Co., 149 Tex. 224, 230 S.W.2d 522, 523 (Tex.1950). The injured party seeking recovery of future damages must: “(1) present evidence that, in reasonable probability, it will incur expenses in the future, and (2) prove the probable reasonable amount of the future expenses.” MCI Telecomm. Corp. v. Texas Util. Elec. Co., 995 S.W.2d 647, 654-655 (Tex.1999). Obviously, as Chief Justice Cadena wrote, “testimony regarding future medical expenses cannot be exact and absolute ... any more than any attempt to predict the future can be precise.” Vela, 762 S.W.2d at 323 (Cadena, C.J., dissenting). This, however, does not obviate the need for some evidence. Id. If the parties had preserved error and properly presented the issue on appeal, I would be hard pressed to find sufficient evidence in this record to support damages for future medical expenses.

      . Tagle and Triple R also refer to proposed findings filed before trial; however, these proposed findings would not alert a trial court to an issue regarding the sufficiency of the evidence to support a specific damage finding when the evidence had yet to be introduced.

      . We note that the first requested additional finding conflicts with the trial court’s original finding because the trial court’s original finding found no lost wages, while the requested additional finding would find $14,297.00 in lost wages. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex.2003) (listing lost wages and lost earning capacity as separate damage elements); Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex.App.-Amarillo 2002, pet. denied) (distinguishing lost wages from lost earning capacity). A trial court is not required to make additional findings which conflict with the original findings. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 254 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). We further note that the trial court would not have erred in refusing to find the specific amount of damages requested by Tagle and Triple R because a trial court is permitted to respond to a request for additional findings by finding whatever amount of damages the trial court deems the record to justify. See Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117, 120 (1944); Gorbett Bros. Steel Co. v. Anderson, Clayton & Co., 533 S.W.2d 413, 419 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ).


source: Caselaw Access Project

author: Justice CASTILLO. Justice HINOJOSA. Justice CASTILLO. J. YÁÑEZ.

license: Public Domain

text:
    Roger GERDES, Jr. and Carolyn Gerdes, Appellants, v. John KENNAMER, Appellee.
    No. 13-02-657-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Dec. 6, 2004.
    Rehearing En Banc Overruled Feb. 3, 2005.

      See also 155 S.W.3d. 541, 2004 WL 2786079.

      Cynthia T. Sheppard, Cuero, for appellants.
    Murray Fogler, McDade Fogler Maines, L.L.P., Houston, for appellee.
    Before Justices HINOJOSA, YÁÑEZ, and CASTILLO.
   OPINION

Opinion by

Justice CASTILLO.

This is a suit for breach of fiduciary duty. Appellants Roger Gerdes and Carolyn Gerdes appeal a $915,392.65 judgment in favor of appellee John Kennamer. The Gerdeses challenge the trial court’s venue ruling and assert that the evidence is legally and factually insufficient to support the jury’s liability and damages findings in Kennamer’s favor. They also complain of charge error in failing to condition a damages question as to Carolyn Gerdes on a finding of fraud. Kennamer raises a conditional cross-point challenging the sufficiency of the evidence to support an offsetting quantum meruit award to the Gerdeses. We affirm.

J. FACTUAL AND PROCEDURAL HISTORY

Roger Gerdes and Kennamer, both United States citizens, were long-time friends and business associates. The disputes on which this litigation focused arose from their joint operation of Laguna Vista, a hunting and fishing lodge and ranch in San Fernando, Tamaulipas, Mexico. Ken-namer bought the lodge and its associated improvements and assets in 1990 for a purchase price in excess of $500,000. The conveyance included a lease of the real property on which the lodge was located and an option to purchase the real property. Roger Gerdes and Kennamer structured Texas and Mexican business entities to operate the lodge. Kennamer contributed the lodge improvements and the capital. Roger Gerdes contributed “sweat equity” by managing the business and taking care of the lodge and hunters. Carolyn Gerdes also invested in Laguna Vista, provided bookkeeping and other personal services, and helped promote and book hunting trips.

In 1991, Kennamer decided to exercise his option to purchase the real estate. The agreed purchase price was' $1,038,000. He paid $250,000 down and mortgaged the balance. At the time, Mexican law restricted title ownership to real property along the United States-Mexico border and prohibited transfer of title to non-Mexican citizens. At Roger Gerdes’s suggestion, the grantor conveyed record title to the real property to four Mexican citizens: Roger Gerdes’s son, lawyer, and employees. Kennamer did not receive record title. The transaction divided the real estate into four parcels. The son’s parcel included the land where the lodge was located. The lawyer and the son’s parcels were clear of any liens. The other two parcels were encumbered by the purchase-money lien. The four Mexican record title holders then executed purported powers of attorney “to John Kennamer and/or Roger Gerdes” to protect Kennamer’s ownership interest.

Operating expenses for Laguna Vista mounted. Kennamer defaulted on the purchase-money loan. The holder of the purchase-money lien instituted legal proceedings. Title to the real property became the subject of extensive criminal and civil proceedings in Mexico. Roger Gerdes and Kennamer both started looking for a buyer for the Laguna Vista lodge. In 1993, at Roger Gerdes’s direction and on his instructions, the son revoked his power of attorney to Kennamer.

Roger Gerdes then formed two new business entities in 1997: Hacienda de Aves, which was a Texas corporation, and Immobiliarias Don Rogelio, a Mexican entity. Roger Gerdes and Carolyn Gerdes were the only principals of the two new business entities. Their purpose was to facilitate sale of the Laguna Vista lodge and property. The son transferred his interest in the real property, which was unencumbered by the purchase-money lien and on which the lodge improvements were located, to Immobiliarias Don Rogelio. Roger Gerdes began representing to potential buyers that he was part owner of Laguna Vista.

In December of 2000, Roger Gerdes forwarded to Kennamer at his ranch in Mata-gorda County, Texas a copy of a letter of intent that detailed a proposed transaction with a prospective buyer. He deleted references to his employment by the new entity and payment to him of bonuses and commissions. The transaction, which called for Kennamer to receive $750,000 in cash, did not close because of questions regarding title to the property. The letter of intent, however, alerted Kennamer that Roger Gerdes was claiming ownership of an interest in Laguna Vista.

As a result, Kennamer brought this lawsuit in Matagorda County. He alleged that the Gerdeses had taken monies from the lodge business without his authority. He claimed conversion, fraud, breach of fiduciary duty, and conspiracy to defraud. The Gerdeses counterclaimed for the value of their services and for attorney fees. They also sought a change of venue, which the trial court denied. A jury trial resulted in mixed liability and damages findings. The trial court entered offsetting judgments. The net result for purposes of this appeal is a $915,392.65 judgment in favor of Kennamer against Roger Gerdes.

We first analyze the venue question presented by the Gerdeses in issue three. We then address the sufficiency challenges and charge error asserted by the Gerdes-es.

II. VENUE

A. Scope and Standard of Review

Plaintiffs are accorded the right to choose venue first. Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 677 (Tex.App.—Austin 2003, no pet.). As long as the plaintiff files suit in a county of proper venue (i.e., the county is at least a permissive venue and no mandatory provision applies), the trial court may not disturb the plaintiffs venue choice. Id. at 678 (citing Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex.1994)). The plaintiffs venue choice stands unless the defendant challenges it by a proper motion to transfer venue. Chiriboga, 96 S.W.3d at 678 (citing In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex.1999)). Once challenged, the plaintiff has the burden to present prima facie proof that venue is maintainable in the county of suit. Tex.R. Civ. P. 87(2)(a), (3)(a); Chiriboga, 96 S.W.3d at 678 (citing In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999)). The plaintiffs prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof. Chiriboga, 96 S.W.3d at 678 (citing Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex.1993) (op. on reh’g)).

Nonetheless, we conduct an independent review of the entire record, including any trial on the merits, to determine whether any probative evidence supports the trial court’s venue decision. Chiriboga, 96 S.W.3d at 677 (citing Ruiz, 868 S.W.2d at 757); Southern County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 457 (Tex.App.—Corpus Christi 2000, no pet.). We consider not only the prima facie proof presented by the plaintiff to support venue but also “other evidence” that “destroys the prima facie proof.” Excel Corp. v. Porras, 14 S.W.3d 307, 311 (Tex.App.—Corpus Christi 1999, pet. denied) (quoting Ruiz, 868 S.W.2d at 757); see Tex.R. Civ. P. 87.3. If there is any probative evidence supporting venue in the county of suit, we affirm the trial court’s venue decision even if the evidence preponderates to the contrary. Chiriboga, 96 S.W.3d at 678 (citing Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex.1995)). However, conclusive evidence to the contrary can “destroy the prima facie proof.” Chiriboga, 96 S.W.3d at 678 (citing Ruiz, 868 S.W.2d at 757; Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 750 (Tex.App.—San Antonio 1995, writ denied)).

We review the evidentiary record in the light most favorable to the venue ruling. Chiriboga, 96 S.W.3d at 677-78. Our review is similar to that we employ when reviewing a trial court’s fact findings and legal rulings in other contexts. Ochoa, 19 S.W.3d at 457. However, we do not review the trial court’s venue ruling for factual sufficiency. Id. (citing Ruiz, 868 S.W.2d at 758). Here, the venue facts are generally uncontested, leaving only the legal question of whether venue was proper in Matagorda County. See Ochoa, 19 S.W.3d at 457.

We review de novo a trial court’s application of the law to the facts. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Jackson v. Kincaid, 122 S.W.3d 440, 444-45 (Tex.App.—Corpus Christi 2003, pet. filed). In other words, we determine the correctness of the trial court’s legal conclusions. BMC Software, 83 S.W.3d at 794. We are not obligated to give any particular deference to those conclusions. Pegasus Energy Group v. Cheyenne Petroleum Co., 3 S.W.3d 112, 121 (Tex.App.—Corpus Christi 1999, pet. denied). As the final arbiter of the law, we have the power and the duty to evaluate legal determinations of the trial court independently. Id.

Thus, if any probative evidence supports the trial court’s venue decision, we must affirm it. Chiriboga, 96 S.W.3d at 678 (citing Beadle, 907 S.W.2d at 471). If no such evidence appears in the record, we must reverse the judgment and remand. Tex.Civ. PRAC. & Rem.Code ANN. § 15.064(a) (Vernon 2002); Chiriboga, 96 S.W.3d at 678 (citing Ruiz, 868 S.W.2d at 758).

The parties agree that the general permissive venue statute is applicable here. See Tex. Civ. PRAC. & Rem.Code Ann. § 15.002 (Vernon 2002). Section 15.002(a)(1) provides that venue is permissive in the county where “all or a substantial part of the events or omissions giving rise to the claim occurred.” Ciriboga, 96 S.W.3d at 678 (quoting Tex. Civ. Prac. & Rem.Code Ann. § 15.002(a)(1), (2) (Vernon 2002)). In this case, we must determine whether there is any probative evidence to support the district court’s implied ruling that “all or a substantial part of’ the events giving rise to this lawsuit occurred in Matagorda County. Chiriboga, 96 S.W.3d at 678.

B. . The Venue Facts

The Kennamers' alleged in their original petition that some or all of the claims arose in Matagorda County. The Gerdes-es alleged in their motion to transfer venue that all or a substantial part of the events or omissions giving rise to the claim occurred in Cameron County. See Tex. Civ. Prac. & Rem.Code Ann. § 15.064(a) (Vernon 2002). The parties agreed to develop the venue facts through live testimony during a temporary injunction hearing convened by the trial court at the same time as the venue motion. See Tex.R. Civ. P. 87.3(b). .

Viewed in the light most favorable to the trial court’s venue ruling, testimony at the hearing established that Kennamer lived on a ranch in Matagorda County. During a visit by Roger Gerdes to the ranch in 1990, Kennamer and he reached an agreement that Kennamer would contribute Laguna Vista’s assets and business, Roger Gerdes would contribute “sweat equity” by running the lodge, and they would divide the profits equally. Thereafter, Roger Gerdes often telephoned Kennamer and visited with him at Kennamer’s ranch regarding Laguna Vista business. Roger Gerdes picked up supplies and equipment for the lodge at Kennamer’s ranch. The Gerdeses forwarded all the business records for Laguna Vista to Kennamer at his ranch. An accountant in Bay City prepared and filed tax returns for Laguna Vista from Matagorda County. Roger Gerdes faxed to Kennamer at his ranch the letter of intent regarding the proposed purchase of the property. Kennamer faxed from his ranch a response to that letter in which he complained about Roger Gerdes’s actions in trying to sell the property. In July of 2001, Roger Gerdes faxed to Kennamer at his ranch a letter notifying Kennamer that Roger Gerdes’s son had revoked his power of attorney in Kennamer’s favor back in 1993. That July 2001 letter was the first knowledge Kennamer had that Roger Gerdes was claiming ownership of the Laguna Vista property. From his ranch in Matagorda County, Kennamer arranged with the potential buyer to share the expense of sending an attorney to Mexico to investigate the status of the title to the real property.

Viewed in the light most favorable to the trial court’s venue ruling, testimony at trial also established that the Gerdeses transmitted requests for payment of expenses related to Laguna Vista to Kennamer at his Matagorda County ranch. Kennamer authorized wire transfers of operating funds for the business from there. Carolyn Gerdes sent the business’s profit and loss statements to Kennamer or his accountant in Matagorda County.

C. Venue Analysis

Our task is not to determine the best venue. Chiriboga, 96 S.W.3d at 681. Rather, in this case we must decide whether the venue facts satisfy the substantiality requirement of section 15.002(a)(1). Id. Accordingly, we conclude that the record contains probative evidence that a substantial part of the events giving rise to the claim occurred in Matagorda County. See Colonial County Mut. Ins. Co. v. Valdez, 30 S.W.3d 514, 527 (Tex.App.—Corpus Christi 2000, no pet.) (refusing to find venue decision erroneous where, inter alia, alleged misrepresentations were made to plaintiff in county of suit and other correspondence regarding claim was sent to county of suit); see also Ochoa, 19 S.W.3d at 457 (considering “where the contract was negotiated or executed, where it was to be performed, and where the alleged breach occurred” in reviewing venue decision). Therefore, we find no reversible error in the trial court’s determination that venue was proper in Matagorda County. See Chiriboga, 96 S.W.3d at 678; see also Valdez, 30 S.W.3d at 527; Ochoa, 19 S.W.3d at 457. We overrule the Gerdeses’ third issue.

III. SUFFICIENCY OF THE EVIDENCE

A. The Sufficiency Issues on Appeal

The Gerdeses bring four challenges that the evidence is legally and factually insufficient to support the jury’s findings: (1) of a relationship of trust and confidence between Roger Gerdes and Kennamer; (2) of damages for the breach of trust and confidence; (3) of fraud liability and damages; and (4) of civil conspiracy as to Carolyn Gerdes.

B. Preservation of Error

Except for fundamental error, to preserve a complaint for appellate review, a party must present to the trial court a timely and specific request, objection, or motion. Tex.R.App. P. 33.1(a); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex.1999) (per curiam). In particular, to preserve a legal-sufficiency challenge, a party must have specifically raised its complaint in: (1) a motion for instructed verdict; (2) an objection to the submission of a jury question; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991); U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 407, 411 (Tex.App.—Houston [1st Dist.] 2002, pet. denied). Similarly, a motion for new trial is required to complain of factual insufficiency of the evidence to support a jury finding. Tex.R. Civ. P. 324(b)(2).

The requirements of motions for new trial are governed by the Texas Rules of Civil Procedure. Rule 321 requires a party to designate each ground it relies on in a motion for new trial in such a way that the trial court can identify and understand the complaint. See Tex.R. Civ. P. 321. The purpose of a motion for new trial is to provide an opportunity for the trial court, by granting a new trial, to cure any errors. D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.—Dallas 1993, no writ). In addition, rule 322 provides that the court shall not consider grounds in a motion for new trial couched only in general terms. See Tex.R. Civ. P. 322. Therefore, the allegations in a motion for new trial must be sufficiently specific to enable the trial court to understand what the movant alleges was error. Id. Finally, an issue raised on appeal must correspond to a motion made to the trial court. In re T.R.S., 931 S.W.2d 756, 758 (Tex.App.—Waco 1996, no writ); D/FW Commercial Roofing, 854 S.W.2d at 189. A motion for new trial that states one legal theory cannot be used to support a different legal theory on appeal. D/FW Commercial Roofing, 854 S.W.2d at 189.

C. The Record

The Gerdeses did not move for an instructed verdict on any basis at the close of Kennamer’s case in chief. As to sufficiency challenges, the Gerdeses moved for an' instructed verdict at the close of all evidence only on the basis of “no or insufficient evidence of any profit” to be submitted to the jury. They objected generally to submission of damages questions to the jury on the basis there was no or insufficient evidence as to fair market value and lost profits.

In their motion for partial judgment notwithstanding the verdict, the Gerdeses asserted generally that “there was no and/or insufficient evidence of fraud, conversion, and/or breach of fiduciary duty.” They also complained that “[a]s Plaintiff, as a matter of law, never owned the property involved herein as a matter of Mexican law, there was no damage due to any alleged breach of [Roger Gerdes’s] fiduciary duty.”

As to sufficiency challenges in their motion for new trial, the Gerdeses asserted generally that “there was no and/or insufficient evidence of fraud and/or breach of fiduciary duty.” They also reiterated their complaint that “[a]s Plaintiff, as a matter of law, never owned the property involved herein as a matter of Mexican law, there was no damage due to any alleged breach of [Roger Gerdes’s] fiduciary duty.” In addition, they asserted that “[t]here was no and/or insufficient evidence of any damages to Plaintiff as a result of any alleged breach of fiduciary duty.”

D. Sufficiency Preservation-of-Error Analysis

In issue one, the Gerdeses argue that the evidence showed only that Roger Gerdes and Kennamer were old friends and business partners, not that they had a relationship of trust and confidence such that it was a fiduciary relationship. They did not challenge in the trial court at any juncture the legal sufficiency of the evidence of a fiduciary relationship between the parties. See Tex.R.App. P. 33.1(a); see also McKenzie, 997 S.W.2d at 280. Nor did they challenge the factual sufficiency of the evidence on this basis in their motion for new trial. See Tex.R. Civ. P. 324(b)(2). We hold that the Gerdeses waived their first issue at trial. We overrule issue one.

In issue two, the Gerdeses argue that Kennamer’s proof of damages fails because he did not prove he owned the real property at issue. Therefore, the Gerdeses conclude, Kennamer’s testimony about the fair market value of the real property is incompetent and constitutes no evidence. At trial, the Gerdeses moved for an instructed verdict only on the general basis of “no or insufficient evidence of any profit” to be submitted to the jury. They objected generally to submission of damages questions to the jury on the basis there was no or insufficient evidence of fair market value and lost profits. In their motion for partial judgment notwithstanding the verdict, the Gerdeses complained that “[a]s Plaintiff, as a matter of law, never owned the property involved herein as a matter of Mexican law, there was no damage due to any alleged breach of [Roger Gerdes’s] fiduciary duty.” They reiterated that complaint in their motion for new trial. In addition, they asserted in their motion for new trial that “[t]here was no and/or insufficient evidence of any damages to Plaintiff as a result of any alleged breach of fiduciary duty.” We find that the Gerdeses’ general challenges during and after the trial to the sufficiency of the evidence of value, profits, and damages were not specific enough to enable the trial court to understand that what they alleged was error was that Kennamer’s testimony about the fair market value of the property “was incompetent and constituted no evidence.” See Tex.R. Civ. P. 322.

Similarly in issue two, the Gerdes-es argue that the evidence did not prove that the Laguna Vista lodge business was ever taken from Kennamer. We also find that the Gerdeses’ general sufficiency challenges at trial were not specific enough to enable the trial court to understand what they alleged was error was that the evidence did not prove the Laguna Vista lodge business was ever taken from Ken-namer. See Tex.R.Civ. P. 322.

Thus, the Gerdeses did not challenge in the trial court the legal sufficiency of the evidence on either of the two specific grounds urged by them in issue two. See Tex.R.App. P. 33.1(a); see also McKenzie, 997 S.W.2d at 280. Nor did they challenge the factual sufficiency of the evidence on these specific bases in their motion for new trial. See Tex.R. Civ. P. 324(b)(2). We hold that the Gerdeses waived their second issue by not complaining specifically on the same bases at trial as they assert on appeal. See D/FW Commercial Roofing, 854 S.W.2d at 189. We overrule issue two.

In issue four, the Gerdeses complain that Kennamer did not present legally or factually sufficient evidence: (1) of all of the elements of a fraudulent representation; and (2) of any resulting damages. They first argue that Kennamer’s testimony he would not have continued to capitalize Laguna Vista if he had known about the revocation of the son’s power of attorney in 1993 evidences a failure to disclose, not an affirmative misrepresentation. We hold that the Gerdeses’ general insufficiency allegations at trial were not specific enough to enable the trial court to understand what they alleged was error was that the evidence proved a failure to disclose, not an affirmative misrepresentation. See Tex.R. Civ. P. 322. We hold that the Gerdeses waived the first part of their fourth issue at trial. See id. Wé overrule the first part of issue four.

As their second subissue within issue four, the Gerdeses argue that the evidence is legally and factually insufficient to support the jury’s finding of fraud damages. However, they do nothing more than summarily repeat the issue in their brief, without citation to legal authority or substantive analysis. Thus, we hold that the Gerdeses inadequately briefed the second part of issue four and failed to preserve it on appeal. See Tex.R.App. P. 38.1(h); see also Morales v. Morales, 98 S.W.3d 343, 346 (Tex.App.—Corpus Christi 2003, no pet. h.) (finding that inadequately briefed argument does not preserve issue for review). We decline to address the second part of issue four.

In their first subissue within issue five, the Gerdeses complain that the evidence is legally and factually insufficient to support the jury’s finding that Carolyn Gerdes engaged in a civil conspiracy. They did not challenge the legal sufficiency of the evidence on this basis in the trial court at any juncture. See Tex.R.App. P. 33.1(a); see also McKenzie, 997 S.W.2d at 280. Nor did they challenge the factual sufficiency of the evidence on this basis in their motion for new trial. See Tex.R. Civ. P. 324(b)(2). We hold that the Gerdeses waived the first part of issue five at trial. We overrule the first part of issue five.

IV. CHARGE ERROR

In the second part of issue five, the Gerdeses complain that the jury’s civil-conspiracy damages finding as to Carolyn Gerdes was not conditioned on a finding of fraud. To preserve error for appellate review regarding a jury instruction, counsel must object with enough specificity to enable the trial court to understand the precise grounds and make an informed ruling. R & R Contrs. v. Torres, 88 S.W.3d 685, 695 (Tex.App.—Corpus Christi 2002, appeal dismissed) (citing Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex.1986)). The test for determining if a party has preserved error in the jury charge is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. R & R Contrs., 88 S.W.3d at 695 (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992)). Where the complaint is that the trial court failed to submit a particular definition or instruction, the complaining party must have presented a written request for its inclusion, tendering the proposed definition or instruction in substantially correct wording. Tex.R. Civ. P. 278; R & R Contrs., 88 S.W.3d at 695. If the charge contains an affirmative misstatement of the law, an objection suffices to preserve error. R & R Contrs., 88 S.W.3d at 695 (citing Religious of the Sacred Heart v. City of Houston, 836 S.W.2d 606, 613-14 (Tex.1992)). At trial, the Gerdeses neither submitted a conditional instruction nor objected to the charge on the basis they raise on appeal. See Tex.R.App. P. 33.1(a). We hold that the Gerdeses waived the second part of their fifth issue by not complaining about the charge on that basis at trial. See id. We overrule the second part of issue five.

CONCLUSION

We have declined to address one subis-sue as inadequately briefed and overruled each of the rest of the Gerdeses’ issues. Kennamer’s cross-point is conditional and not necessary to our disposition of the appeal. See Tex.R.App. P. 47.1. We affirm the trial court’s judgment.

Dissenting opinion by J. YÁÑEZ.

Concurring opinion by J. HINOJOSA.

Concurring Opinion by

Justice HINOJOSA.

I concur with the disposition and reasoning of Justice Castillo’s majority opinion. However, I disagree with Justice Castillo’s recommendation that the majority opinion be designated a “memorandum opinion.” Because I oppose the designation of the majority opinion as a “memorandum opinion,” I also concur with that part of Justice Yañez’s dissenting opinion entitled “Designation of Opinion.” See Tex.R.App. P. 47.4 (Opinion may not be designated memorandum opinion if author of concurrence or dissent opposes that designation).

Dissent by

Justice CASTILLO.

Respectfully, I believe the opinion and the dissent meet the requirements of a memorandum opinion set forth in rule 47.4. Rule 47.4 states, in pertinent part:

An opinion must be designated a memorandum opinion unless it does any of the following:
(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
(c) criticizes existing law; or
(d) resolves an apparent conflict of authority.

Tex.R.App. P. 47.4. (Emphasis added). The majority opinion and the dissent do not meet any of the criteria. Thus, I would designate the opinion as a “memorandum opinion.”

Respectfully, I disagree with the precedent the dissent and concurrence on designation set. They disagree with the designation of “memorandum opinion” because the issues are not settled. I read the first sentence of rule 47.4 which states, “If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the Court’s decision and the basic reasons for it,” to apply uniformly to those cases in which we need not reach a decision on the merits. In those cases before us that present issues for review, we then determine whether one of the criteria in the remaining part of rule 47.4 is met. In short, I construe the mandatory language in rule 47.4 to mean that designating our work as an “opinion” is the exception and not the rule.

Dissenting opinion by

J. YÁÑEZ.

I disagree with the majority’s conclusion that appellants waived their second and fourth issues, in which they challenge, respectively, the legal and factual sufficiency of the evidence supporting the jury’s findings that: (1) breach of the relationship of trust and confidence between Kennamer and Roger.Gerdes (“Gerdes”) caused Ken-namer’s damages (issue two); and (2) Gerdes committed fraud against Kennamer (first part of issue four). I would hold that: (1) appellants preserved their legal and factual sufficiency challenges to these issues; (2) the evidence is legally and factually insufficient to support the jury’s award of $1,000,000.00 in damages because Kennamer failed to establish ownership of the property or assets upon which the award was based; ’ (3) the evidence is legally and factually insufficient to support the jury’s finding that Gerdes committed fraud against Kennamer; and (4) the evidence is legally and factually insufficient’ to support the jury’s award of $1,000,000.00 in damages for conversion because Kennamer failed to establish ownership of the property or assets • upon which the award was based. Accordingly, I would reverse the trial court’s judgment and render judgment that appellees take nothing.

Designation of Opinion

Texas - Rule of Appellate Procedure 47.4 provides as follows:

If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic reasons for it. An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation. An opinion must be designated a memorandum opinion unless it does any of the following:
(a)establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
(c) criticizes existing law; or
(d) resolves an apparent conflict of authority.

Tex.R.App. P. 47.4.

Justice Castillo has recommended that the majority opinion be designated a “memorandum opinion.” I disagree that the majority opinion should be designated a “memorandum opinion” because the issues in this case are not settled. See id. Further, as author of this dissenting opinion, I oppose the designation of the majority opinion as a “memorandum opinion.” See id. Accordingly, the majority opinion must be designated as an “opinion.” See id.

Preservation of Error

The majority holds that appellants waived their second issue, in which they challenge the legal and factual sufficiency of the evidence supporting the jury’s finding of damages caused by Kennamer’s breach of his informal fiduciary relationship with Gerdes. In their motion for partial judgment notwithstanding the verdict, appellants asserted that “there was no/and or insufficient evidence of fraud, conversion, and/or breach of fiduciary duty.” Similarly, in their motion for new trial, appellants complained that “[t]here was no and/or insufficient evidence of fraud and/or breach of fiduciary duty.” At trial, appellants complained that “there is insufficient evidence of any fair market value.” In both their motion for partial judgment notwithstanding the verdict and motion for new trial, appellants complained that “[a]s [Kennamer],' as a matter of law, never owned the property involved herein as a matter of Mexican law, there was no damage due to any alleged breach of Movant Roger Gerdes, Jr.’s fiduciary damage [sic ], and therefore Movants are entitled to a take-nothing judgment thereon.” The majority holds that appellants’ complaints were “not specific enough” to preserve their challenges to the evidence supporting the jury’s findings that Gerdes breached his fiduciary duty to Kennamer, causing Kennamer to suffer $1,000,000.00 in damages. I disagree.

“The purpose of a motion for new trial is to provide an opportunity for the trial court to cure any errors by granting a new trial.” D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.—Dallas 1998, no writ). “Therefore, the allegations in a motion for new trial must be sufficiently specific to enable the trial court to clearly understand what is being alleged as error.” Id. I would hold that appellants’ complaints were sufficiently specific to enable the trial court to understand that appellants were challenging the sufficiency of the evidence supporting Gerdes’s breach of his fiduciary duty and the sufficiency of the evidence supporting Kennamer’s damages because Kennamer failed to prove that he owned the property on which the damages were based.

In the first part of issue four, appellants challenge the legal and factual sufficiency of the evidence supporting the jury’s finding that Gerdes committed fraud against Kennamer. The majority holds appellants waived them challenge to the sufficiency of the evidence supporting the finding of fraud. As noted above, appellants complained in both their motion for partial judgment notwithstanding the verdict and their motion for new trial that “there was no/and or insufficient evidence of fraud.” I would hold that appellants sufficiently preserved their challenge to the sufficiency of the evidence supporting the jury’s finding of fraud.

Damages

In their second issue, appellants challenge the legal and factual sufficiency of the evidence supporting the jury’s finding of damages caused by Gerdes’s breach of his fiduciary duty to Kennamer.

In assessing Kennamer’s damages resulting from Gerdes’s breach of his fiduciary duty, the jury was instructed to consider the fair market value of the assets taken from Kennamer by Gerdes. Thus, Kennamer was required to establish: (1) ownership of assets that Gerdes took from him; and (2) the fair market value of such assets.

When we review a “no evidence” or legal sufficiency of the evidence issue, we must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered, and indulge in that party’s favor every reasonable inference deducible from the evidence. Formosa Plastics v. Presidio Eng’rs, 960 S.W.2d 41, 48 (Tex.1998); Adams v. H & H Meat Prod., Inc., 41 S.W.3d 762, 770 (Tex.App.—Corpus Christi 2001, no pet.). When both legal and factual sufficiency issues are raised, we must first review the legal sufficiency to determine if there is any evidence of probative value to support the judge’s findings. Adams, 41 S.W.3d at 770 (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam)). The findings of fact must be upheld if there is more than a scintilla of evidence in support thereof. Id. There is more than a scintilla when the evidence creates more than a mere surmise or suspicion of its existence. Id.

If the findings are supported by legally sufficient evidence, we must then review the factual sufficiency of the evidence. Id. When we review an “insufficient evidence” or factual sufficiency of the evidence issue, we consider, weigh and examine all of the evidence which supports or undermines the finding. Id. We set aside the verdict only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986)). Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our judgment for that of the fact finder’s conclusions. Id.

Kennamer’s Testimony

Kennamer testified that he paid $543,000 to purchase the hunting lodge operation in Mexico, including the assets, name, and goodwill of the company. He and his wife were the sole owners of the Texas corporation set up to run the business; Gerdes was the owner of the Mexican corporation set up to run the business. Kennamer later agreed to purchase the land surrounding the lodge (approximately 8,000 acres) from the Montemayor family. He made a down payment of $250,000.00. Because title to the property was restricted to Mexican citizens, the land was divkh ed into four parcels as follows: one parcel (with the lodge) was placed in the name of Gerdes’s son, Roger Gerdes III (“Rusty”); a second parcel was placed in the name of Cesar de la Garza, a Mexican attorney who represented Kennamer and Gerdes in the transaction; the third and fourth parcels were in the names of Maria Avalos, Gerdes’s maid, and her husband, Cesar Avalos. ' Gerdes provided Kennamer with powers of attorney executed by each of the title holders. In 1993, Rusty revoked the power of attorney in Kennamer’s favor and later executed a second power of attorney in favor of his father. Mr. Montemayor filed a criminal suit against Kennamer, Gerdes, and the other title holders.

Sometime after Montemayor filed the lawsuit, Kennamer stopped making payments on the property. Kennamer concedes he does not own the two Avalos parcels because those parcels are encumbered by debt. Kennamer claims ownership of the other two parcels (in the names of Rusty and de la Garza) “free and clear.” Kennamer’s damages are based on “the improvements and the land and the business and the assets of the business that are free and clear and unencumbered;” the unencumbered property consists of approximately 900 acres. Gage, a company that expressed interest in purchasing the lodge, offered a million and a half dollars for the lodge and the twenty acres it sits on. Kennamer valued the remaining 880 acres at $1500 per acre. He estimated the value of the lodge business (apart from the buildings and land) at $3 million, based on a formula of ten times the annual gross income of the business, which he estimated at $300,000.00. Kennamer requested damages of $2.7 million for the lodge, improvements, and land; he requested an additional $2 million for the “goodwill” of the business.

On cross-examination, Kennamer testified that after he filed his lawsuit, he learned that under Mexican law, the person whose name appears on a deed is the actual owner. Kennamer admitted he received a memorandum from Pat Kelly, an attorney who traveled to Mexico to investigate the issue of who held title to the property. The memorandum stated that the record owners of the property held title under Mexican law. Kennamer also conceded that the powers of attorney executed by de la Garza and Rusty are now invalid and ineffectual under Mexican law, although he contends the documents were valid at the time they were executed. He conceded that the power of attorney executed by Rusty is dated September 24, 1991, but was not notarized until January 22,1992.

Kennamer testified that he made numerous attempts to contact Rusty regarding the status of title to the property. When Rusty failed to return his calls, Kennamer left a message on his answering machine. A transcript of the message was admitted at trial:

Ummm, Rusty, it’s John Kennamer. Uhhh, it’s about 9:15 my time. Uhhh, I really would like to talk to you. Uhhh, I’ve got a big meeting tomorrow with a bunch of lawyers in Harlingen and uhhh, I’d like to keep you out of this meeting if possible but uhhh, if I can’t talk to you I can’t help you. Uhhh, so it might be worth a couple of hundred thousand to you if you were to pick up the telephone and call me. And uhhhh, I can kinda fill you in on what’s fifin’ to come down. Uhhh, I know you’ve got a big investment in your career, you and your wife and uhhh if this thing is not settled pretty quick, then uhh, all of this lawsuit and everything could have a very negative effect on your licensing, so give me a call and let’s, let’s you and I work this thing out to your benefit and both of us can go on down the road and be happy. So give me a call, it’s area code [phone number]. I’ll be up late this evening and I’ll be leaving early tomorrow morning for The Valley, so uhhh, please give me a call regardless what time you get in and uhhh, that way I can do you the best service possible. I’ll be waiting on your call uh Rusty. I’ll talk to you later. Thank you.

At trial, Kennamer was questioned about the message:

Q [Gerdes’s counsel]: Okay. So, what you’re doing is you’re threatening him—
A [Kennamer]: No, I’m not.
Q: You’re threatening him—
A: I’m making him aware of the facts.
Q: You’re threatening him that if he doesn’t call you back—
A: He’s going to be sued.
Q: —you’re going to sue him?
A: That’s right. That’s not a threat. That was a promise.
Q: And you carried through with your promise?
A: I did.
Q: But you sued him anyway and left him in the lawsuit until Monday.
A: Until Friday.

Kennamer admitted that he had agreed to release Rusty from the lawsuit in exchange for Rusty’s agreement to voluntarily appear as a witness. In addition, the following exchange occurred:

Q [Gerdes’s counsel]: And that also means that — I’m sorry. One of the other conditions [for letting Rusty out of the lawsuit] was that he is supposed to give to you whatever interest he has in the land that’s down in Mexico, true?
A [Kennamer]: Not to give me anything.
Q: You’re not going to buy it from him?
A: He doesn’t own it.
Q: You’re not going buy—
A: He testified he did own it. He was holding it as a titleholder, a nominal titleholder.
Q: Did the word “give” cause a problem? That he has to transfer any interest he has—
A: He agreed to sign whatever paperwork was necessary once the lawsuit was determined, (emphasis added).

Kennamer agreed to purchase the 8,000 acres of property from the Montemayors for a purchase price of $1,038,000.00, but admitted that he stopped making payments after paying only $340,000.00. He also admitted that since the time of the original purchase, there have been no separate agreements to carve out any smaller portion of the property. Thus, although Kennamer claims that he “bought the land,” he admits that he did not finish paying for “part” of the land.

Viewing the evidence in the light most favorable to Kennamer, I would hold that the evidence is legally insufficient to support the finding that Kennamer established ownership of any assets in Mexico. Thus, the evidence is legally insufficient to support the jury’s finding that the fair market value of assets taken from Ken-namer by Gerdes is $1,000,000.00.

To recover for a claim of breach of a fiduciary relationship, a plaintiff must establish (1) the existence of a fiduciary relationship; (2) breach of the duty; (3) causation; and (4) damages. Parks Davis Auctioneers, Inc. v. Verna Drilling Co., 589 S.W.2d 168, 169 (Tex.App.—El Paso 1979, writ dism’d). Because Kennamer failed to establish the element of damages, I would hold that the evidence is legally and factually insufficient to support the jury’s finding that breach of the alleged informal fiduciary relationship between Kennamer and Gerdes caused Kennamer’s damages. Accordingly, I would sustain appellants’ second issue.

Fraud

In the first part of their fourth issue, appellants contend the evidence is legally and factually insufficient to support the jury’s findings that Gerdes committed fraud against Kennamer.

The elements of actionable fraud in Texas are: (1) that a material representation was made; (2) that it was false; (3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; and (6) that he thereby suffered injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001) (citing Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983)).

Here, the jury was instructed as follows: Fraud occurs when—
1. A party makes a material misrepresentation,
2. The misrepresentation is made with knowledge of its falsity or recklessly without any knowledge of the truth and as positive assertion,
3. The misrepresentation is made with the intention that it should be acted on by the other party, and
4. The other party acts in reliance on the misrepresentation and thereby suffers injury.
“Misrepresentation” means a false representation of fact.

In support of their fraud claim, appel-lees cite Gerdes’s failure to disclose Rusty’s 1993 revocation of the power of attorney in Kennamer’s favor. They also cite various “other material facts that Gerdes failed to disclose to Kennamer.” The supreme court has held that “[a]s a general rule, a failure to disclose information does not constitute fraud unless there is a duty to disclose the information.” Bradford v. Vento, 48 S.W.3d 749, 755 (Tex.2001). “Thus, silence may be equivalent to a false representation only when the particular circumstances impose a duty on the party to speak and he deliberately remains silent.” Id. Here, however, the jury’s answer to the fraud question was not conditioned on any finding of a duty to disclose or of a confidential or fiduciary relationship between Gerdes and Kennamer. The jury was not provided any instruction on failure to disclose when such a duty exists. See State BaR of Texas, PatteRN Jury Charge, PJC 105.4.

The jury found that Kennamer discovered, or should have discovered, the alleged fraud in January 2001; it awarded fraud damages in the amount of $35,000.00. In support of the jury’s damage award, appel-lees cite plaintiffs exhibit 53, which is a list of sums purportedly invested by Ken-namer in the lodge business. The list details investments by year, beginning in 1986 and including 1990 through 2000. However, the last year detailing an investment by Kennamer is 2000. Thus, there is no evidence supporting the jury’s finding that Kennamer suffered $35,000.00 in damages in rebanee on a misrepresentation by Gerdes. I would sustain appellants’ fourth issue.

Conversion

To prove a cause of action for conversion, a plaintiff must show that the defendant wrongfully exercised dominion and control over the plaintiffs property in denial of or inconsistent with the plaintiffs rights in that property. Bandy v. First State Bank, Overton, Tex., 835 S.W.2d 609, 622 (Tex.1992); see also Whitaker v. Bank of El Paso, 850 S.W.2d 757, 760 (Tex.App.—El Paso 1993, no writ) (elaborating). Because Kennamer failed to estabbsh ownership of any assets in Mexico, he cannot recover for conversion and is not entitled to any damages award on the basis of such ownership.

I would reverse the trial court’s judgment and render judgment that appellees take nothing.

        . The authenticity of the powers of attorney was hotly contested at trial.

      . Roger Gerdes did not supercede the judgment. The trial court issued turnover orders that were the subject of separate appellate proceedings.

      . The Gerdeses also requested a transfer for convenience to Cameron County, where they lived. See Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b) (Vernon 2002). They alleged that suit in Matagorda County would work an economic and personal hardship on them and their witnesses, specifically citing the greater travel distance to and from Matagorda County as compared to Harlingen in Cameron County. The trial court’s denial of the Gerdeses’ motion for transfer on convenience grounds is not subject to review. See Tex Civ. Prac. & Rem.Code Ann. § 15.064(c) (Vernon 2002).

      . Roger Gerdes testified that the agreement was struck in a telephone conversation with Kennamer at his ranch, not in person.

      . The Gerdeses asserted, inter alia, two other grounds in their motion for new trial: (1) evidentiary error in that "Defendant’s objection to Plaintiff’s lack of qualifications to testify as to the fair market value of the business and/or property should have been sustained”; and (2) charge error in that "[t]he Court’s charge failed to include at least one of the necessary elements of fraud, and the Court erred in overruling Defendants’ objections to the proposed charge on that basis.” The Gerdeses do not address any issue on appeal to evidentiary error. The charge error issue they raise on appeal does not challenge the fraud jury charge.

      . The only ground asserted by the Gerdeses in their motion for new trial with regard to Kennamer’s testimony of the property’s fair market value was in the context of an eviden-tiary objection. See note 5. The Gerdeses do not assert evidentiary error on appeal.

      . The only ground asserted by the Gerdeses in their motion for new trial with regard to the elements of fraud was in the context of charge error. See note 5. The Gerdeses do not assert charge error on this basis on appeal.

      . On November 4, 2004, my rule 47.6 request was denied. Tex.R.App. P. 47.6. Under rule 47.6, a court en banc may change a panel’s designation of an opinion.

      . Kennamer testified that he meant, "Please call me because I don't want anything to happen that would interfere with your real estate license.”