author: BILL BASS, Justice.

text:
    Brady W. CHAMBERS and Evelyn B. Chambers, Appellants, v. HUNT PETROLEUM CORPORATION, Appellee.
    No. 12-09-00225-CV.
    Court of Appeals of Texas, Tyler.
    Aug. 25, 2010.

      Deborah J. Race, Lawrence L. Beason, for Appellants.
    Diane V. Devasto, J. Matt Rowan, Jerry S. Harris, for Appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and BASS, Retired Justice, Twelfth Court of Appeals, sitting by assignment.
   OPINION

BILL BASS, Justice.

This is an appeal from a judgment granting specific performance to Hunt Petroleum Corporation of an option to purchase, and awarding damages and attorney’s fees. In three issues, Brady W. Chambers and Evelyn Chambers contend that (1) the option had expired because Hunt failed to timely tender the $100.00 purchase money, (2) Hunt was not entitled to enforce the option because it was in default on the contract’s provisions, and (3) there was insufficient evidence to support the award of damages. We affirm the trial court’s order for specific performance, reverse and render the award of damages, render judgment awarding taxes paid by the Chamberses, and remand the cause for a redetermination of attorney’s fees.

Background

The parties’ predecessors in interest, Sonat Exploration Company and First Church of the Nazarene, on August 7, 1992, entered into a lease with an option to purchase involving 3.94 acres of a 7.94 acre tract in Longview, Gregg County, Texas. The term of the lease was fifteen years. Sonat paid $39,300.00 at the execution of the lease “as rent for the entire lease term.” The lease required Sonat to pay all ad valorem taxes and other costs during the term “as if it were the fee simple owner,” and provided that the church would have no ownership responsibilities. The lease granted Sonat the exclusive option to purchase the 3.94 acre tract “at any time prior to the end of the lease term.” The lease and the option were assignable. The option agreement contained the following provision:

The option shall be exercisable by giving written notice to the Lessor prior to the end of the lease and the purchase shall be completed by conveyance of the property by General Warranty Deed and payment of the purchase price within sixty (60) days from the delivery of the notice of the intent to exercise the option. The purchase price shall be one hundred dollars ($100) to be paid in cash at closing.

On November 22, 2004, the Chamberses bought the 7.94 acre tract that was subject to the lease for $50,000.00. Shortly thereafter, the Chamberses received notice from the City of Longview that excessive overgrowth on the tract was a violation of the municipal code. Brady Chambers contacted Hunt Petroleum Corporation, the successor in interest to Sonat, to notify it of the problem and its responsibility under the lease to clear the 3.94 acre tract to correct the code violations.

In May 2005, Hunt hired a contractor to clear and mow the 3.94 acres. The contractor “began clearing the approximately 8 acres, our half and as a favor to Mr. Chambers, his half also.” The cost for clearing and mowing the 7.94 acres was $17,353.00. The foreman’s memo noted that “there was a brush and dirt pile on Mr. Chambers[’s] half of the property that was buried in a pit that we dug. We put the excess dirt in a low area on his side to help it from collecting water.” The foreman’s memo also stated that “[w]e thought it would be in our best interest to help out Mr. Chambers by cleaning up his side.” Hunt mowed the entire tract in 2006 and 2007. Only the $4,625.00 cost of the 2007 mowing was charged to this tract.

The Chamberses paid $1,698.00 in taxes attributable to Hunt’s 3.94 acres.

On July 16, 2007, Brad Russell, district landman for Hunt, sent the Chamberses formal notice of Hunt’s exercise of its option to purchase. Russell stated in the letter that Hunt would prepare a plat and general warranty deed for the Chambers-es’ review. The Chamberses did not respond. Russell sent another letter to the Chamberses on September 8, 2007, once again informing them that Hunt was exercising the option in the lease and enclosing a general warranty deed. Russell asked the Chamberses to review the deed and sign it. In his letter, Russell stated that he would call the Chamberses and fix a time to meet with them to pay the $100.00 purchase price, pursuant to the lease terms. The Chamberses did not respond to this letter. On September 20, 2007, Russell sent a third letter to the Cham-berses referring to the numerous occasions that Hunt had attempted without success to communicate with them by telephone despite Hunt’s leaving several messages for them on their voice mail. Another warranty deed was enclosed for the Cham-berses to execute. The letter concluded by asking the Chamberses to call one of two numbers to schedule a time to close. The Chamberses did not respond to the third letter.

On October 8, 2007, Hunt received a letter from the Chamberses’ lawyer advising Hunt it was in default under the lease, and, as a result, was now holding over.

On November 5, 2007, the Chamberses filed a suit to quiet title to the 3.94 acre tract. They sought a declaration that the option to purchase was invalid on various grounds, and judgment awarding them the back taxes they had paid on the property.

Hunt counterclaimed seeking a declaration that the option was valid and a decree ordering its specific performance. It also sought an award of 50.6% of the land clearing and mowing costs under the theory of quantum meruit, and attorney’s fees.

The trial court found that Hunt had properly and timely exercised its option. The trial court ordered the Chamberses to execute a warranty deed, and, upon its delivery, that Hunt tender $100.00 to the Chamberses. The court also awarded Hunt $11,132.00 in damages (50.6% of the total clearing and mowing charges), and $29,289.91 in attorney’s fees.

Did the Option Expire Because of Hunt’s Failure to Tender the $100.00 Purchase Money?

In their first issue, the Chamberses contend that the option to purchase expired because Hunt failed to meet its contractual obligation to tender the $100.00 purchase price within the sixty day period allowed for closing after its notice of exercise of the option. They maintain that there are no special circumstances that serve to excuse Hunt from strict compliance with the contract’s terms. The Chamberses argue that there is no evidence, or at least insufficient evidence, or findings to support the trial court’s conclusion that they were solely to blame for the failure to close.

Standard of Review

In an appeal from a bench trial, the trial court’s findings of fact have the same force and effect as a jury verdict and are reviewable for legal and factual sufficiency under the same standards that are applied to the review of a jury verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991).

When reviewing a finding for legal sufficiency, we must credit evidence favorable to the judgment if a reasonable fact finder could, disregard contrary evidence unless a reasonable fact finder could not, and reverse the fact finder’s determination only if the evidence presented in the trial court would not enable a reasonable and fair minded fact finder to reach the judgment under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). The court should sustain an appellant’s legal sufficiency challenges if the record reveals (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence conclusively establishes the opposite of a vital fact. Id. More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair minded people to differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004).

When considering a factual sufficiency challenge, we consider all of the evidence and set aside the judgment only if it so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

We review the trial court’s conclusions of law de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996).

Applicable Law

Strict compliance with the provisions of an option contract is required. See Jones v. Gibbs, 133 Tex. 627, 639-40, 130 S.W.2d 265, 271 (Tex. Comm’n App. 1939, opinion adopted). Exercise of an option must be unqualified and strictly in accordance with the terms of the agreement, unless equity requires otherwise. City of Brownsville v. Golden Spread Electric Coop., 192 S.W.3d 876, 880 (Tex.App.-Dallas 2006, pet. denied).

However, the failure of the op-tionee to comply strictly with the terms or conditions of the option will be excused when the failure is brought about by the conduct of the optionor. Jones, 133 Tex. at 640, 130 S.W.2d at 272. “It is thoroughly settled that where a defendant has openly and avowedly refused to perform his part of the contract or declared his intention not to perform it, the plaintiff need not make tender of payment of the consideration before bringing suit.” Burford v. Pounders, 145 Tex. 460, 466, 199 S.W.2d 141, 144 (Tex.1947); Rus-Ann. Dev., Inc. v. EGGC, Inc., 222 S.W.3d 921, 927 (Tex.App.-Tyler 2007, no pet.). Formal tender is excused when tender “would be a useless and idle ceremony.” Burford, 145 Tex. at 467, 199 S.W.2d at 145. A tender of consideration is excused where the optionor intentionally avoids giving the purchaser an opportunity of making it. 81 C.J.S. Specific Performance § 116 (1977).

Discussion

The trial court made the following findings of fact germane to this issue.

10.On July 16, 2007, prior to the expiration of the Lease with Option, Defendant gave Plaintiffs written notice of its election to exercise the option to purchase the 3.94 acres. Plaintiffs received this notice on or about July 25, 2007, but made no response to it.
11. Subsequent to July 25, 2007, Defendant made several attempts to contact Plaintiffs, both in writing and by telephone, in order to arrange a closing of the purchase of the 3.94 acres in accordance with the terms of the Lease with Option, but Plaintiffs ignored all of [Defendant’s] attempts to do so.
12. Defendant was at all material times ready, willing and able to close the purchase of the 3.94 acres pursuant to the terms of the Lease with Option.

Based on these findings, the trial court concluded that “the failure to close was solely the fault of the [Chamberses].”

The Chamberses acknowledge that “[i]t is thoroughly settled that where a defendant has openly and avowedly refused to perform his part of the contract or declared his intention not to perform it, the plaintiff need not make tender of payment of the consideration before bringing suit.” See Burford, 145 Tex. at 466, 199 S.W.2d at 144; Rus-Ann Dev., 222 S.W.3d at 927. However, the Chamberses insist that their silence in response to Hunt’s attempts to communicate with them did not amount to an open refusal to perform the contract that might serve to excuse Hunt’s tender of the $100.00 consideration. The lease agreement required payment of the $100.00 consideration within sixty days of the notice of the exercise of the option. The Chamberses argue that because Hunt did not timely pay the consideration, its attempt to exercise the option was not “strictly in accordance with the terms of the agreement” and therefore ineffective. See Besteman v. Pitcock, 272 S.W.3d 777, 784 (Tex.App.-Texarkana 2008, no pet.).

We disagree. The trial court was justified in inferring that the Chamberses’ re-fosal to respond to Hunt’s repeated attempts to communicate with them during the critical sixty day period for closing was calculated to defeat Hunt’s exercise of its option. Almost immediately after the expiration of the lease and the sixty days provided for closing of Hunt’s exercise of its option, the Chamberses did communicate with Hunt giving it formal notice to vacate the premises. In our view, the Chamberses’ conduct was tantamount to a refusal to perform their part of the contract. A tender of consideration is excused where the optionor intentionally avoids giving the purchaser an opportunity of making it. See 81 C.J.S Specific Performance § 116. A tender of the nominal $100.00 consideration under these circumstances “would have been a vain and useless thing.” See Burford, 145 Tex. at 466, 199 S.W.2d at 144.

Ample evidence supports the trial court’s findings. The findings support its conclusion that the failure to close within sixty days following Hunt’s notice was solely the fault of the Chamberses. The Chamberses’ first issue is overruled.

Is a Party in Default on Other Contract Provisions Entitled to Enforce an Option in that Contract?

Article III of the lease required the lessee, Hunt, to pay “all ad valorem taxes during the term of the lease” and to pay “all other costs associated with the property as if it were the fee simple owner.” In their second issue, the Chamberses maintain that Hunt is not entitled to the equitable remedy of specific performance of the option provided by Article V of the lease because it had breached the agreement by failing to pay the taxes on the 3.94 acres, and by allowing the tract to become overgrown in violation of the contract and the Longview municipal code. The question presented is whether Hunt’s breach of the covenant to pay the taxes and other costs associated with the property excuses the Chamberses’ performance of the contract’s option provision.

Applicable Law

“A prerequisite to the remedy of excuse of performance is that the covenants in a contract must be mutually dependent promises.” Hanks v. GAB Bus. Servs., Inc., 644 S.W.2d 707, 708 (Tex.1982). “[W]hen a covenant goes only to part of the consideration on both sides and a breach may be compensated for in damages, it is to be regarded as an independent covenant, unless this is contrary to the expressed intent of the parties.” Id. A “condition precedent” in a contract is an event that must occur or an act that must be performed before a right can accrue to enforce an obligation.” Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.1992). Such terms as “if,” “provided that,” “on condition that,” or some similar phrase of conditional language are normally required to create a condition precedent. Criswell v. European Crossroads Shopping Ctr., 792 S.W.2d 945, 948 (Tex.1990). Courts will not construe a contract provision as a condition precedent unless they are compelled to do so by language that may be construed in no other way. See Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987). “If a contract contains a condition precedent, it must either have been met or excused before the other party’s obligation can be enforced.” Calr-Tex Lumber Co. v. Owens Handle Co., 989 S.W.2d 802, 809 (Tex.App.-Tyler 1999, no pet.).

“A court may refuse to grant equitable relief [specific performance] to a [party] who has been guilty of unlawful or inequitable conduct regarding the issue in dispute.” Lazy M. Ranch, Ltd. v. TXI Operations, LP, 978 S.W.2d 678, 683 (Tex.App.-Austin 1998, pet. denied).

Discussion

We conclude that the requirement found in Article III of the lease that the lessee pay taxes and other ownership costs associated with the 3.94 acre tract is a covenant independent of the option agreement found in Article V. It is not a dependent covenant or condition precedent whose nonperformance would render the option agreement unenforceable by Hunt.

A breach by Hunt of its obligations under Article III is readily compensable by damages. The lease contains no language from which it may be even inferred that the parties intended to condition the lessee’s enforcement of the option agreement upon its payment of taxes and other costs associated with the property. An examination of the entire agreement reveals no relationship between the taxes and other costs provision and the option provision. There is no conditional language indicating that the enforceability of the option is dependent upon Hunt’s performance of its obligations under Article III.

In Cook v. Young, 269 S.W.2d 457 (Tex.Civ.App.-Fort Worth 1954, no writ), the lessee sought specific performance of an option to purchase clause in the lease agreement. Id. at 458. The lessor argued that the grant of summary judgment in the lessee’s favor was improper, because there was a fact issue regarding whether the lessee had complied with a term of the lease requiring that it pay all the utility bills for the leased property. Id. at 460. The court of appeals held that compliance with the terms of the lease was not a condition precedent to the lessee’s exercise of the option. Id. The court stated that “[w]hile we find such a provision in the lease contract, we do not find it in that part of the instrument containing the option to purchase. The option is unconditionally granted and there is no requirement creating any condition precedent or otherwise limiting the right to exercise the option.” Id.

In Giblin v. Sudduth, 300 S.W.2d 330 (Tex.Civ.App.-Austin 1957, writ refd n.r.e.), a contract for the sale of land also gave the buyer an option to buy an adjoining tract. The option provided as follows:

The seller agrees to give the purchaser an option on the acre tract joining the property they are buying from the seller on the east; this option will be for 5 years and the purchasers can take up their option at any time within 5 years from date by paying the seller $1500.00 in cash. The purchaser agrees to pay a yearly rental of $10.00.

Id. at 332. The court of appeals held that the purchaser’s failure to pay the rent did not bar the purchaser’s exercise of the option. “The option was not conditioned upon the payment of the annual rental, the option was for five years[,] and the purchasers were allowed to take up their option at any time within five years by paying the seller $1500.00 in cash.” Id.

In a case cited by the Chamberses, Lazy M. Ranch, Ltd. v. TXI Operations, LP, the contract required TXI to pay Lazy M. $2,000.00 for the right to conduct subsurface tests for gravel on part of the Lazy M. land — 1,669 acres specifically described by metes and bounds. Lazy M. Ranch, 978 S.W.2d at 680. For the same consideration, the contract gave TXI the option to lease 300 acres out of the 1,669 acres to mine subsurface materials. To exercise the option, the contract required TXI (1) to give Lazy M. written notice of its decision to exercise the option within six months of the execution of the contract and (2) tender $98,000.00 to Lazy M. TXI attempted to exercise the option by delivering written notice accompanied by a $98,000.00 bank check. Lazy M. returned the check with a letter explaining that it would not lease the land, because TXI had breached the contract by entering on and testing Lazy M.’s land outside the 1,669 acres specified in the contract. Id. The uncontradicted summary judgment evidence showed that, despite Lazy M.’s repeated objections, TXI intentionally persisted in coring and testing outside of the area subject to the agreement. In conducting these tests, TXI stole valuable information about the subsurface potential of the ranch. Id. at 681.

The Austin Court of Appeals held that TXI’s conduct constituted a material breach of an implied covenant not to explore outside the area agreed upon. Id. Consistent with the other opinions cited, the court of appeals acknowledged that having decided that TXI’s conduct was a matérial breach of an implied covenant, it must determine whether the implied covenant was independent or dependent. Id. A breach of an independent covenant would give the nonbreaching party only a cause of action for damages resulting from the breach. Id. The breach of a dependent covenant gives the nonbreaching party the election to terminate the contract. Id. In that event TXI would have forfeited its option. “Forfeitures will be avoided unless [the] contract language admits of no other construction or results in a construction that is unreasonable, inequitable, or oppressive.” Id. (citing Reilly, 727 S.W.2d at 530). The court considered several factors in determining whether it would be inequitable and oppressive to characterize a party’s nonperformance as merely a breach of an independent covenant: (1) the extent to which the nonbreaching party will be deprived of the benefit it reasonably could have anticipated had the breach not occurred, (2) the extent to which the injured party can be adequately compensated for the part of the benefit lost, (3) the likelihood that the defaulting party will cure its failure, and (4) the extent to which the conduct of the party failing to perform comports with standards of good faith and fair dealing. Id. at 681-82 (citing Restatement OF Contracts (Second) § 241(a) (1981); Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 693 (Tex.1994)).

The Chamberses stress that Hunt was unaware of the option to purchase until they informed Hunt that the 3.94 acres was overgrown and that the lease required Hunt to maintain the tract in compliance with the municipal code. The Chamberses speculate that but for their notice, Hunt would have remained ignorant of their option to purchase and probably would have failed to exercise it. The Chamberses paid the taxes on the entire tract. They claim they bought the entire tract without knowledge of the easement. The equities, the Chamberses contend, favor them and make it inequitable and oppressive to reward Hunt by enforcing the option.

We, on the contrary, believe the equities weigh in Hunt’s favor. The $100.00 to be paid at closing was nominal in that it bore no relationship to the value of property exchanged. The real price paid for the tract upon the option’s exercise was embraced within the $39,600.00 consideration already paid by the lessee at the execution of the lease in 1992. The lease was of record when the Chamberses bought the property. The Chamberses secured a title policy when they bought the property in 2004. The lease with option to purchase was pointed out in the policy as an exception to coverage. The Chamberses knew or should have known of the option to purchase when they bought the property.

Once informed that the 3.94 acres was overgrown, Hunt responded immediately by clearing the tract to cure the problem and comply with the contract and the municipal code. The Chamberses complain of Hunt’s failure to pay the ad valorem taxes on the 3.94 acres from November of 2004 when they bought the 7.96 acres until the time of trial. The Chamberses, as record owners, received the tax notices for the entire tract. They concede they never informed Hunt regarding the taxes or asked it to pay its pro rata share. Even if Hunt had neglected to pay the taxes after being told what was due, the injured party could have been adequately and easily compensated by damages. Hunt’s conduct deprived the Chamberses of no benefit it reasonably could have anticipated. Hunt’s conduct was fully consistent with standards of good faith and fair dealing.

We have weighed the equities using the criteria set out in Lazy M. Fairness does not require that we regard the covenants breached by Hunt as constructively dependent in order to avoid an inequitable or oppressive result. The covenants breached by Hunt were independent covenants whose nonperformance will not excuse the nonbreaching party’s performance. Hunt’s predecessor had already paid all but $100.00 of the actual consideration for the property. Hunt was never informed of the amount of taxes due nor was it asked to pay them. A forfeiture of Hunt’s option because of its breach of an independent covenant to pay those taxes would be genuinely inequitable and oppressive. The Chamberses’ second issue is overruled.

Is the Evidence Sufficient to Support the Award of Damages for Clearing and Mowing?

In their third issue, the Cham-berses contend that the evidence is legally and factually insufficient to support the award to Hunt of $11,132.00 representing 50.6% of the clearing and mowing charges Hunt incurred on the entire tract. The Chamberses’ share of the 7.96 acres equals 50.6%.

The foreman’s memo showing the cost for clearing and mowing the entire tract stated “on 5-04-2005, M & J Construction began clearing approximately 8 acres (our half and as a favor to Mr. Chambers, his half also.... ” The memo detañed how Mr. Chambers had met with him and stated, “We thought it would be in our best interest to help out Mr. Chambers by cleaning up his side.”

Brady Chambers testified that he walked around the tract with the foreman and the contractor. Chambers recalled that they told him that he was being so nice that they would clean up the brush piles he had on his side. He testified that he had never asked Hunt to mow his property. Chambers stated that, in fact, he had already had his part of the tract mowed for $200.00. In 2005, Hunt spent $17,353.28 on the property, but it charged only $4,625.00 to this property in 2007. Hunt never asked for payment for this work, the bulk of which was performed in May 2005, almost four years before trial in April 2009. Hunt sought to recover under the doctrine of quantum meruit.

Applicable Law

“To recover under the doctrine of quantum meruit, a plaintiff must establish that: (1) valuable services and/or materials were furnished, (2) to the party sought to be charged, (3) which were accepted by the party sought to be charged, and (4) under such circumstances as reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the recipient.” Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). The measure of damages for a claim in quantum meruit is the reasonable value of the work performed and the materials furnished. M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 625 (Tex.App.-Houston [1st Dist.] 1987, no writ).

Discussion

Hunt proved the expense it incurred in clearing and mowing the 7.96 acres by the memos and invoices. Hunt’s own evidence shows that the work on the Chamberses’ half was done “as a favor to Mr. Chambers.” The same memo states, “We thought it would be in our best interest to help out Mr. Chambers by cleaning up his side.”

This is consistent with Chambers’s testimony that he was led to believe that Hunt buried the brush piles on his part of the tract as a favor for his cooperation. Brad Russell, Hunt’s landman who testified to the clearing and mowing costs, conceded that he had no reason to disbelieve Chambers’s testimony. Hunt, he told the court, had never previously asked the Chambers-es to pay any part of the clearing and mowing costs, although most of the work had been done four years before.

The party seeking to recover in quantum meruit must establish that the work done was accepted by the party to be charged “under such circumstances as reasonably notified the recipient that the plaintiff in performing expected to be paid by the recipient.” See Heldenfels Bros., Inc., 832 S.W.2d at 41.

There is an absolute absence of any evidence in this record indicating that Hunt expected to be paid for the work done on the Chamberses’ part of the tract. The evidence, in fact, conclusively establishes the contrary. The Chamberses’ third issue is sustained.

Conclusion

That part of the judgment granting specific performance of the option to purchase the 3.94 acres is affirmed. The award of damages to Hunt in the amount of $9,433.61 ($11,132.00 clearing and mowing costs less $1,698.39 taxes paid by Chambers attributable to the 3.94 acres) is reversed and judgment rendered that Hunt take nothing on its claim for clearing and mowing costs. Judgment is rendered awarding the Chambers $1,698.39 for taxes they paid on the 3.94 acres. The award of attorney’s fees to Hunt is reversed, and the cause is remanded to the trial court for reconsideration of the amount of attorney’s fees.


source: Caselaw Access Project

author: Justice FILLMORE.

license: Public Domain

text:
    GEORGIA-PACIFIC CORPORATION, Appellant, v. Susan Elaine BOSTIC, Individually and as Personal Representative of the Heirs and Estate of Timothy Shawn Bostic, Deceased; Helen Donnahoe; and Kyle Anthony Bostic, Appellees.
    No. 05-08-01390-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 26, 2010.

      Deborah G. Hankinson, Hankinson Lev-inger LLP, Dallas, TX, for Appellant.
    Denyse Ronan Clancy, Dallas, TX, for Appellees.
    Before Justices BRIDGES, FITZGERALD, and FILLMORE.
   OPINION

Opinion By

Justice FILLMORE.

Appellant Georgia-Pacific Corporation appeals the final judgment of the trial court in favor of appellees Susan Elaine Bostic, Individually and as Personal Representative of the Heirs and Estate of Timothy Shawn Bostic, Deceased, Helen Donnahoe, and Kyle Anthony Bostic. In three issues, Georgia-Pacific contends (1) there is legally insufficient evidence that Georgia-Pacific’s joint compound caused Timothy Bostic’s mesothelioma, (2) there is no evidence to support the jury’s finding of gross negligence against Georgia-Pacific, and (3) the trial court abused its discretion by denying Georgia-Pacific’s motion for mistrial and by vacating the order granting Georgia-Pacific a new trial.

Concluding there is legally insufficient evidence of causation, we reverse the trial court’s judgment and render judgment that appellees take nothing on their claims against Georgia-Pacific.

PROCEDURAL BACKGROUND

In February 2003, Timothy Bostic’s wife, son, father, and mother brought wrongful death claims and a survival action against Georgia-Pacific and numerous other entities alleging Timothy’s death was caused by exposure to asbestos. At the time of trial, Georgia-Pacific was the sole remaining defendant, the other named defendants having settled or been dismissed. Appellees alleged Georgia-Pacific was negligent, strictly liable for a product marketing defect, and grossly negligent.

In 2005, Judge Sally Montgomery presided over the trial of this lawsuit in Dallas County Court at Law No. 3. After the jury verdict awarding appellees actual and punitive damages, Judge Montgomery ordered appellees to either elect a new trial on all issues or agree to remit a misallocat-ed award of future lost wages and the award of punitive damages. Appellees elected a new trial. The lawsuit was tried for the second time before a jury in 2006. The jury returned a verdict in favor of appellees, finding Georgia-Pacific seventy-five percent liable and Knox Glass, Inc., a non-party former employer of Timothy, twenty-five percent liable for Timothy’s death. The jury awarded $7,554,907 in compensatory damages and $6,038,910 in punitive damages.

Georgia-Pacific filed a motion to recuse Judge Montgomery. Judge M. Kent Sims granted the motion to recuse, and the lawsuit was transferred to Judge Russell H. Roden, Dallas County Court at Law No. 1. In December 2006, the trial court granted Georgia-Pacific’s motion for mistrial and ordered a new trial.

In January 2007, Judge D’Metria Benson became the presiding judge of Dallas County Court at Law No. 1. In February 2008, appellees filed a motion to vacate Judge Roden’s order granting a new trial and for entry of judgment. In July 2008, Judge Benson granted appellees’ motion to vacate the order for new trial and signed a judgment based on the jury’s June 2006 verdict. In October 2008, Judge Benson signed the amended final judgment awarding appellees $6,784,135.32 in compensatory damages and $4,831,128.00 in punitive damages. Georgia-Pacific appealed.

LEGAL SUFFICIENCY OF THE EVIDENCE

In its first issue, Georgia-Pacific asserts there is legally insufficient evidence that Georgia-Pacific asbestos-containing joint compound caused Timothy’s mesothelio-ma, a form of cancer usually linked to asbestos exposure. Georgia-Pacific asserts there is no evidence Timothy was exposed to Georgia-Pacific asbestos-containing joint compound, and even if there was evidence of exposure, there is no evidence of dose. Further, Georgia-Pacific asserts that even if there was evidence of exposure and dose, the record contains no epidemiological studies showing that persons similar to Timothy with exposure to asbestos-containing joint compound had an increased risk of developing mesothelioma. Georgia-Pacific also asserts that appellees’ experts’ theory that “each and every exposure” to asbestos caused Timothy’s meso-thelioma was rejected by the Texas Supreme Court in Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex.2007). Georgia-Pacific asserts that for each of these reasons, appellees’ negligence and defective marketing claims against Georgia-Pacific fail as a matter of law.

When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that no evidence supports the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1988). “The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex.2010) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005)). We review the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Del Lago Partners, 307 S.W.3d at 770.

Asbestos Exposure

In 2002, Timothy was diagnosed with mesothelioma at the age of forty. He died in 2003. Appellees claim Timothy’s mesothelioma was caused by his exposure to asbestos-containing joint compound manufactured by Georgia-Pacific. Georgia-Pacific acknowledged there is some evidence that Timothy used or was present during the use of joint compound between 1967 and 1977, but contends there is no evidence of exposure to Georgia-Pacific asbestos-containing joint compound. See Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex.1989) (fundamental principle of products liability law is plaintiff must prove defendant supplied product which caused injury).

Georgia-Pacific manufactured and sold joint compound products that included chrysotile asbestos fibers from the time it acquired Bestwall Gypsum Company in 1965 until 1977, when Georgia-Pacific ceased marketing asbestos-containing joint compound. Those Georgia-Pacific joint compounds were offered in a dry mix formula and a pre-mixed formula. The parties do not dispute that any exposure of Timothy to a Georgia-Pacific asbestos-containing joint compound would have occurred between 1967 and 1977. Evidence regarding Timothy’s work with or around Georgia-Pacific asbestos-containing joint compound in this ten-year period came from Timothy’s and Harold Bostic’s deposition testimony read and played by videotape at trial and Timothy’s work history sheets.

Timothy testified he had been around drywall work his entire life, and he recalled that before the age of ten, he observed his father performing drywall work. He stated he mixed and sanded joint compound from the age of five. He testified he recalled at a young age helping his father “mud the holes” with joint compound. While he did not provide any more specifics of drywall work he performed with his father before 1977, he believed he used and was exposed to Georgia-Pacific joint compound before he graduated from high school in 1980. Timothy’s work history sheets also indicate he worked with and around other brands of asbestos-containing joint compounds.

Timothy’s work history sheets also assert exposure to asbestos fibers from Georgia-Pacific joint compound as a result of household exposure to Harold’s clothing. This alleged exposure would have occurred prior to his parents’ divorce in 1972, when he was ten years old, and thereafter when he stayed with his father on weekends, holidays, and at times in the summer.

Harold testified he used Georgia-Pacific joint compound ninety-eight percent of the time that he did drywall work. He testified he tried one or two other brands of joint compound, but he always returned to Georgia-Pacific’s product. With one exception listed below, Harold said he could not positively associate Georgia-Pacific’s product with any specific drywall job. He stated he knew he had used Georgia-Pacific’s product on several jobs, but he could not recall exactly where. Harold testified that Timothy began to accompany him on remodeling jobs in 1967 when Timothy was the age of five. Timothy helped mix joint compound, applied and sanded joint compound to the height Timothy could reach, and breathed in the dust from sanded joint compound.

According to his testimony, Harold worked part-time on only one remodeling or construction job at a time for a family member or friend. Each project took a lengthy period of time to complete. Although he testified there was no doubt in his mind that he and Timothy used Georgia-Pacific joint compound “many, many times” between 1967 and 1977, he identified and described work performed on eight remodeling projects for the relevant period. Harold identified only one specific project where Georgia-Pacific joint compound was used, and he could not recall whether Timothy performed drywall work or was present during drywall work on that project. Only three projects were identified in which Harold and Timothy may have performed drywall work together or Timothy may have been present when Harold performed drywall work. Following is a summary chronology of the remodeling or construction jobs Harold recalled for this relevant period:

• In the house he lived in with his wife and Timothy, Harold performed drywall work while remodeling a utility room. Timothy was four or five years of age at the time and may have played in the joint compound “mud” or sanded drywall to the height he could reach.

• During the course of a three-month project, Harold built a ten foot by ten foot bathroom and dressing room in his brother’s house. Harold performed drywall work as part of the project. He could not recall the brand of joint compound he utilized. Timothy performed sewer work on this project. Timothy was six or seven years of age.

• Harold remodeled the interior of his sister’s service station. The project lasted a year in 1968 or 1970. Harold performed drywall work on an eight foot by seven foot room and the ceiling of the room. Timothy was between the ages of six and eight.

• Harold built living quarters in a friend’s garage and car dealership. This yearlong project included drywall work. He has no memory of Timothy working with drywall on this project.

• In connection with the construction of the interior of a friend’s prefabricated home, Harold performed drywall work. The construction project took a year to complete. Harold recalled utilizing Georgia-Pacific joint compound, but he did not recall whether Timothy performed drywall work or whether Timothy was present when Harold performed drywall work. Timothy dug the septic tank on this project. Timothy was between the ages of ten and twelve.

• In finishing a room in his sister’s newer home, Harold could not recall utilizing drywall. Timothy was eleven or twelve years of age.

• During a year-long construction project, Harold performed drywall work in his sister’s five hundred square foot older home.

• In building partitions in his mother’s home, Harold recalled that he may have patched some cracks, but he did not perform drywall work and he could not recall using joint compound. Timothy was thirteen or fourteen years of age.

Evidence at trial substantiated Timothy was exposed to asbestos other than through use of or presence during the use of Georgia-Pacific asbestos-containing joint compound. In addition to Georgia-Pacific joint compound, the evidence established and appellees acknowledge that Timothy was exposed to numerous asbestos products and asbestos-containing products, both occupationally and through household and bystander exposure.

Timothy was exposed to asbestos utilized at Knox Glass. Harold was employed as a welder at Knox Glass from around 1960 until the plant closed in 1984. Asbestos and asbestos-containing products were used throughout the glass container factory, particularly to insulate against heat. Harold was exposed to asbestos fibers, which were inadvertently brought home on his clothing, thereby exposing Timothy. These household exposures to asbestos occurred consistently from Timothy’s birth until his parents were divorced when he was ten years old, from time spent with Harold on weekends, holidays, and in the summers between the ages of ten and fifteen, and from the ages of fifteen to eighteen when Timothy lived with Harold.

Timothy was further exposed to asbestos utilized at Knox Glass in connection with his janitorial and mechanical work at Knox Glass in the summer months of 1980 through 1982. He worked in both the hot end of the plant, where glass bottles were manufactured and where asbestos was more likely prevalent, and in the cold end of the plant. The evidence indicated that asbestos or asbestos-containing items in the work environment at Knox Glass included refractory cements, fireproofing, asbestos cloth, pumps, packing (braided rope made from asbestos), valves, furnaces, blow heads, gaskets, and firebrick mortar. Timothy’s work responsibilities included cutting raw asbestos cloth, sweeping up asbestos-containing dust, cleaning up after asbestos pipe coverings were repaired, removing flaking asbestos from machines and replacing it with asbestos he cut, and wearing asbestos gloves or mittens.

Timothy also had occupational exposure to asbestos during 1977 and 1978, when he worked for approximately six months as a welder’s assistant for Palestine Contractors. There he was exposed to asbestos while removing gaskets and asbestos pipe insulation three to four times each week.

Timothy was also exposed to asbestos fibers as a result of mechanical work Harold performed on automobiles, including brake work. Timothy was exposed in the household to asbestos fibers on Harold’s clothing and as a bystander and assistant to his father "with respect to the automotive repairs. In addition, when he was older, Timothy performed mechanical work on vehicles resulting in exposure to a number of asbestos-containing products, including clutches, brake pads and linings, friction products, and gaskets. He testified that he performed approximately four brake jobs a year and fewer than ten clutch jobs in his lifetime. Timothy identified a number of manufacturers of asbestos-containing products he was exposed to in connection with the mechanical work he performed.

After his graduation from high school, Timothy began remodeling homes on his own. According to the evidence, he was exposed to a number of asbestos-containing products in his remodeling work, including roofing shingles, floor tiles, and ceiling tiles. Timothy identified several manufacturers and marketers of asbestos-containing products he utilized in addition to Georgia-Pacific joint compounds. It is not disputed that Timothy used Georgia-Pacific products after his graduation from high school in 1980. However, these uses occurred after Georgia-Pacific joint compounds no longer contained asbestos.

Albeit limited, the record contains evidence through the lay testimony of Timothy and Harold, and Timothy’s work history sheets, of Timothy’s use or presence during the use of Georgia-Pacific’s asbestos-containing joint compound. On this record, we disagree with Georgia-Pacific’s argument that there is no evidence Timothy was exposed to Georgia-Pacific asbestos-containing joint compound.

Substantial-Factor Causation

Georgia-Pacific next contends there is legally insufficient evidence of causation, an essential element of appellees’ negligence and strict liability defective marketing claims. In a toxic tort case, the plaintiff must show both general and specific causation. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714-15, 720 (Tex.1997). “General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual’s injury.” Havner, 953 S.W.2d at 714; see also Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304, 308-09 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). For purposes of this appeal, Georgia-Pacific is not challenging the legal sufficiency of the evidence of general causation that inhalation of ehrysotile asbestos fibers can cause mesothelioma. Instead, Georgia-Pacific challenges the legal sufficiency of the evidence as to specific causation, that is whether Georgia-Pacific asbestos-containing joint compound was, in fact, a cause of Timothy’s mesothelioma.

Causation

Georgia-Pacific contends that appellees failed to introduce evidence sufficient to satisfy the “substantial factor” standard of causation set forth in Flores, because ap-pellees produced no evidence of cause-in-fact. In the context of an asbestos case, the Texas Supreme Court explained that “asbestos in the defendant’s product [must be] a substantial factor in bringing about the plaintiffs injuries.” Flores, 232 S.W.3d at 770. The Flores court agreed that the “frequency, regularity, and proximity” test for exposure to asbestos set out in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), is appropriate. Flores, 232 S.W.3d at 769; see also Lohrmann, 782 F.2d at 1162-63 (to support reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to specific product on regular basis over extended period of time in proximity to where plaintiff actually worked). The supreme court stated, however, that the terms “frequency,” “regularity,” and “proximity” do not “capture the emphasis [Texas] jurisprudence has placed on causation as an essential predicate to liability,” and agreed with Lohrmann’s analysis that the asbestos exposure must be a substantial factor in causing the asbestos-related disease. Flores, 232 S.W.3d at 769; see also Lohrmann, 782 F.2d at 1162.

Causation is an essential element of appellees’ claims for negligence and product marketing defect. Proximate cause is an element of a negligence claim, while producing cause is an element of a strict liability claim. Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex.1993). “Both producing and proximate cause contain the cause-in-fact element, which requires that the defendant’s act be a ‘substantial factor in bringing about the injury and without which the harm would not have occurred.’ ” Metro Allied Ins. Agency, Inc. v. Lin, 304 S.W.3d 830, 835 (Tex.2009) (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex.1995)); see also Flores, 232 S.W.3d at 770 (quoting Restatement (Second) of Torts § 431 cmt. a (1965)) (“substantial” used to denote the fact that the defendant’s conduct has such an effect in producing harm as to lead reasonable men to regard it as a cause); Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995); Patino v. Complete Tire, Inc., 158 S.W.3d 655, 661 (Tex.App.-Dallas 2005, pet. denied).

Appellees assert that Flores does not require “but-for” causation in proving specific causation and that Flores requires only that appellees prove Timothy’s exposure to Georgia-Pacific asbestos-containing joint compound was a “substantial factor” in contributing to his risk of mesothelioma. We disagree. The Texas Supreme Court “[has] recognized that ‘[c]ommon to both proximate and producing cause is causation in fact, including the requirement that the defendant’s conduct or product be a substantial factor in bringing about the plaintiffs injuries.’ ” Flores, 232 S.W.3d at 770 (quoting Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995)); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex.2007).

Thus, to establish substantial-factor causation, a plaintiff must prove that the defendant’s conduct was a cause-in-fact of the harm. See Flores, 232 S.W.3d at 770. “In asbestos cases, then, we must determine whether the asbestos in the defendant’s product was a substantial factor in bringing about the plaintiffs injuries” and without which the injuries would not have occurred. Id.; see also Stephens, 239 S.W.3d at 308-09.

Appellees acknowledged in their brief and at oral submission that their only expert who opined on specific causation of Timothy’s mesothelioma was pathologist Samuel Hammar, M.D. However, Dr. Hammar testified he could not opine that Timothy would not have developed meso-thelioma absent exposure to Georgia-Pacific asbestos-containing joint compound. Because a plaintiff must prove that the defendant’s conduct was a cause-in-fact of the harm, appellees’ evidence is insufficient to satisfy the required substantial-factor causation element for maintaining this negligence and product liability suit. See Flores, 232 S.W.3d at 770.

“Each and Every Exposure” Theory of Causation

Georgia-Pacific argues that ap-pellees further failed to establish substantial-factor causation because they improperly based their showing of causation on the opinion of their only specific causation expert that each and every exposure to asbestos caused or contributed to cause Timothy’s mesothelioma. Georgia-Pacific contends the law set forth in Flores and Stephens rejects the theory that each and every exposure to asbestos contributes to the development of mesothelioma. See Flores, 232 S.W.3d at 773; Stephens, 239 S.W.3d at 311, 314-15, 321 (in Flores, Texas Supreme Court rejected “any exposure” test for specific causation and adopted substantial-factor causation standard). Therefore, Georgia-Pacific asserts there is no evidence of the essential element of causation to support appellees’ negligence or defective marketing claims against Georgia-Pacific.

Quoting from the underlying court of appeals decision, the Flores court expressly rejected the “each and every exposure” theory of liability:

[Plaintiffs expert] acknowledged that asbestos is “plentiful” in the ambient air and that “everyone” is exposed to it. If a single fiber could cause asbestosis, however, “everyone” would be susceptible. No one suggests this is the case.... In analyzing the legal sufficiency of Flores’s negligence claim, then, the court of appeals erred in holding that “[i]n the context of asbestos-related claims, if there is sufficient evidence that the defendant supplied any of the asbestos to which a plaintiff was exposed, then the plaintiff has met the burden of proof.”

Flores, 232 S.W.3d at 773 (emphasis in original). Instead, as discussed previously in this opinion, the Texas Supreme Court requires the plaintiff to prove “that the defendant’s product was a substantial factor in causing the alleged harm.” Id.

In Stephens, Dr. Hammar, appellees’ specific causation expert here, “expressed] an opinion that each and every exposure that an individual has in a bystander occupational setting causes their mesothelioma.” Stephens, 239 S.W.3d at 315. Dr. Hammar testified that any exposure the deceased commercial painter had throughout the time he worked was causative of his mesothelioma. Id. at 320. The plaintiffs in Stephens also relied on the testimony of Jerry Lauderdale, an industrial hygienist. Id. at 314. Lauderdale testified that asbestos-related diseases are based on cumulative exposures and that there is no way to isolate a particular exposure that caused development of the disease. Id. at 315. It was Lauderdale’s opinion “that every exposure does contribute to the development of — potential to develop mesothelioma.” Id. The court noted that the experts failed to show that “the ‘any exposure’ theory is generally accepted in the scientific community — that any exposure to a product that contains asbestos results in a statistically significant increase in the risk of developing mesothelioma.” Id. at 320-21. Consistent with Flores, the “each and every exposure” theory was rejected in Stephens. Id. at 314-15, 320-21.

In this case, appellees’ specific causation expert, Dr. Hammar, testified that asbestos-related diseases are dose-related diseases, meaning that asbestos exposures comprising the cumulative dose, at least to the point of the first cancer cell’s development, are all causative or potentially causative of the disease. He opined, to a reasonable degree of medical probability, that each and every exposure to asbestos would be a significant contributing, or at least a potentially contributing, factor to the development of mesothelioma. Dr. Hammar agreed that each and every exposure Timothy had to asbestos was significant and a contributing factor in the development of his mesothelioma. These exposures would include Timothy’s use of or exposure to asbestos during his employment at Knox Glass, his bystander exposure, and his household exposure to asbestos fibers Harold inadvertently brought home on his clothing from Knox Glass and from his part-time mechanical and construction work.

At oral submission, appellees stated that while not experts on the specific cause of Timothy’s disease, their other experts at trial supported Dr. Hammar’s testimony. Appellees’ experts at trial on general causation, Arnold R. Brody, Ph.D., an experimental pathologist with a doctorate in cell biology, and Richard Lemen, Ph.D., an epidemiologist, espoused the “each and every exposure” theory. Dr. Brody testified that each and every asbestos fiber a person inhales is considered a cause of or a substantial contributing factor to mesothe-lioma. Dr. Lemen testified that with each and every exposure to asbestos, and each and every inhalation of asbestos fibers, the fibers add to the total body burden of exposure and contribute to the development of mesothelioma.

In their effort to demonstrate evidence of substantial-factor causation, appellees also refer to the testimony of Richard Kro-nenberg, M.D., a witness called to testify by Georgia-Pacific. Dr. Kronenberg testified that asbestos diseases result from a total accumulated exposure over a lifetime. He stated that each and every exposure would be a significant contributing factor to an asbestos disease, and that all the exposures throughout Timothy’s life working with any sort of asbestos-containing products contributed to the development of his disease.

The Texas Supreme Court has determined that an “each and every exposure” theory is legally insufficient to support a finding of causation. Flores, 232 S.W.3d at 773. We agree with Georgia-Pacific’s assertion that appellees did not establish substantial-factor causation to the extent they improperly based their showing of specific causation on their expert’s testimony and the testimony of Dr. Kronenberg that each and every exposure to asbestos caused or contributed to cause Timothy’s mesothelioma.

Frequency, Proximity, and Regularity of Exposure

Appellees contend that Georgia-Pacific misstates the facts in asserting the appel-lees’ expert relied on the “each and every exposure” theory in support of substantial-factor causation. Instead, appellees assert that in accordance with the substantial-factor causation standard, they presented “substantial evidence of Timothy’s ten years of frequent, proximate, and regular exposure to Georgia-Pacific asbestos joint compound.... ”

Appellees contend that Timothy “used Georgia-Pacific asbestos joint compound ‘many times’ over ten years.” Appellees assert that “[tjaking into account the frequency, proximity, and regularity of Timothy’s exposure to Georgia-Pacific’s joint compound,” Dr. Hammar testified that Timothy’s exposure to Georgia-Pacific asbestos joint compound would have been sufficient in and of itself to cause his meso-thelioma.

It was Dr. Hammar’s understanding that from an early age with his father, and then as he grew older, Timothy “did a fair amount of work with the drywall work” and he testified Timothy was exposed to asbestos during mixing, sanding, and cleaning up of drywall materials. Dr. Hammar testified he had reviewed Timothy’s work history sheets “which chronicled Timothy’s work history and what he had actually done during his life.” But he acknowledged that work history sheets do not tell “the time of exposure and the intensity of the exposure the individual had.” Further, he had not reviewed the deposition testimony of Timothy or Harold, although he acknowledged that deposition testimony provides more details of the nature and amount of exposure than work history sheets.

As is detailed above, the record does not contain “substantial” evidence of Timothy’s frequent use of or exposure to Georgia-Pacific joint compound for the period 1967 to 1977 and does not establish Timothy’s use of the joint compound “many times” over that period. In fact, the evidence regarding Timothy’s exposure to asbestos-containing joint compound and the number of times it occurred during the period 1967 to 1977 belies an assertion of exposure occurring “many times” and belies the information contained in Timothy’s work history sheets reviewed by Dr. Hammar.

We disagree with appellees’ contention that Georgia-Pacific is incorrect in arguing appellees relied on the “each and every exposure” theory to support substantial-factor causation. We also disagree with appellees’ contention that, instead, they presented “substantial evidence of Timothy’s ten years of frequent, proximate, and regular exposure to Georgia-Pacific asbestos joint compound” to establish substantial-factor causation. See Jackson v. Anchor Packing Co., 994 F.2d 1295, 1308 (8th Cir.1993) (although worker testified he worked with gaskets and packets “many times” during years as mechanic, no evidence in record that he used gaskets many times and cannot tell whether he used products “for two jobs or two hundred jobs”); Lohrmann, 782 F.2d at 1163 (ten to fifteen occasions of exposure to asbestos-containing pipe covering lasting between one and eighteen hours duration insufficient to satisfy frequency-regularity-proximity test). On this record, there is insufficient evidence of Timothy’s frequent and regular exposure to Georgia-Pacific’s asbestos-containing joint compound during the relevant time period.

Quantitative Evidence that Exposure Increased Risk of Developing Mesothelioma

Georgia-Pacific also contends that ap-pellees failed to establish substantial-factor causation because there is no evidence of the quantitative exposure (dose) of asbestos fibers from Georgia-Pacific asbestos-containing joint compound to which Timothy was exposed, and because appellees failed to present evidence of the minimum exposure level leading to an increased risk of development of mesothelioma.

As set forth in Flores, Stephens, and Smith, the “each and every exposure” theory and the theory that there is no level of asbestos exposure below which the potential to develop mesothelioma is not present have been rejected. See Flores, 232 S.W.3d at 769-70, 773; Smith v. Kelly-Moore Paint Co., 307 S.W.3d 829, 837 n. 9, 839 (Tex.App.-Fort Worth, 2010, no pet.); Stephens, 239 S.W.3d at 311, 314-15. In order to prove substantial factor causation, a plaintiff must not only show frequency, regularity, and proximity of exposure to the product, the plaintiff must also show reasonable quantitative evidence that the exposure increased the risk of developing the asbestos-related injury. Flores, 232 S.W.3d at 769-72; Smith, 307 S.W.3d at 833; Stephens, 239 S.W.3d at 312. “Because most chemically induced adverse health effects clearly demonstrate ‘thresholds,’ there must be reasonable evidence that the exposure was of sufficient magnitude to exceed the threshold before a likelihood of ‘causation’ can be inferred.” Flores, 232 S.W.3d at 773 (quoting David L. Eaton, Scientific Judgment and Toxic Torts-A Primer in Toxicology for Judges and Lawyers, 12 J.L. & Pol’y 5, 39 (2003)).

Flores mandates that a showing of substantial-factor causation include quantitative evidence that Timothy’s exposure to asbestos increased his risk of developing an asbestos-related injury. See Flores, 232 S.W.3d at 772. Thus, the evidence had to not only show Timothy’s exposure to Georgia-Pacific asbestos-containing product on a frequent and regular basis, but also that the exposure was in sufficient amounts to increase his risk of developing mesothelioma. Id. at 769-70.

Appellees contend their specific causation expert, Dr. Hammar, “analyzed the mathematical threshold of asbestos exposure leading to a multiple increased risk of mesothelioma, and testified that Timothy’s ten year exposure to Georgia-Pacific asbestos joint compound would have been enough in and of itself to cause his meso-thelioma.” They state Dr. Hammar considered the threshold for increased risk of developing mesothelioma to be 0.1 fiber cc, and considered the frequency, regularity, and fiber concentration of Timothy’s ten years of exposure to Georgia-Pacific asbestos-containing joint compound, and testified, within a reasonable degree of medical certainty, that these exposures were sufficient, in and of themselves, to have caused Timothy’s mesothelioma.

Dr. Hammar testified he does not know of any safe level of exposure to asbestos under which disease does not occur. He opined that exposure to friable asbestos fibers above background levels had the potential to contribute to the development of Timothy’s mesothelioma. It is his opinion that every exposure above .1 fiber cc contributes to the development of meso-thelioma. He stated that information published in the Federal Register shows that at .1 fiber cc, statistically there are seven cases of mesothelioma per year.

These dosage opinions are consistent with Dr. Hammar’s opinions in Stephens. There he “opined that the level of exposure it takes to cause mesothelioma ‘could be any level above what is considered to be background, which, from my definition, would be anything greater than .1 fiber cc years.’ In sum, he stated: ‘I’m going to express an opinion that each and every exposure that an individual has in a bystander occupational setting causes their mesothelioma.’ ” Stephens, 239 S.W.3d at 315. He stated “that mesothelioma is a dose-responsive disease, and that a threshold exists ‘above which you may be at risk, below which you may not be at risk’ for developing the disease.” Id.

In Stephens, there was no quantitative evidence of the plaintiffs exposure to Georgia-Pacific asbestos-containing joint compound, the product also at issue there. Id. at 321. Although the literature and scientific studies the experts relied upon supported a reasonable inference that exposure to chrysotile asbestos can increase a worker’s risk of developing mesothelio-ma, none of those studies undertook the task of linking the minimum exposure level (or dosage) of joint compound with a statistically significant increased risk of developing of the disease. Id. Thus, the court held that the opinions offered by the plaintiffs’ experts, including Dr. Hammar, lacked the factual and scientific foundation required by Flores and were legally insufficient proof of substantial-factor causation necessary to support the jury’s verdict. Stephens, 239 S.W.3d at 321.

According to John Maddox, M.D., the plaintiffs’ expert regarding specific causation in Smith, “[bjeeause asbestos dust is so strongly associated with mesothelioma, proof of significant exposure to asbestos dust is proof of specific causation.” Smith, 307 S.W.3d at 837. “Dr. Maddox opined that it is generally accepted in the scientific community that there is no minimum level of exposure to asbestos ‘above background levels’ below which adverse effects do not occur.” Id. After discussing the scientific literature relied upon by Dr. Maddox, the court held that the plaintiffs’ evidence “ultimately suffers the same defect as the plaintiffs in Stephens ” and that under Flores, Dr. Maddox’s opinion is insufficient as to specific causation. Id. at 839.

Here, appellees endeavor to rely on material practice simulation studies performed by their general causation expert, William Longo, Ph.D., a material scientist. Dr. Longo’s simulation studies were intended to determine the amounts of asbestos fibers released during mixing, sanding, and sweeping Georgia-Pacific’s (or its predecessor Bestwall’s) asbestos-containing joint compound in a controlled environment. However, Dr. Longo admitted his studies could not establish an exposure level or dose for Timothy, particularly because of the many variables in the circumstances of a given work activity and location of the activity. Thus, Dr. Longo’s testimony regarding the results of his material practice simulation studies do not quantify Timothy’s exposure to asbestos fibers from Georgia-Pacific asbestos-containing joint compound.

On this record, appellees’ evidence is insufficient to provide quantitative evidence of Timothy’s exposure to asbestos fibers from Georgia-Pacific’s asbestos-containing joint compound or to establish Timothy’s exposure was in amounts sufficient to increase his risk of developing mesothe-lioma. Therefore, appellees’ evidence is legally insufficient to establish substantial-factor causation mandated by Flores.

For the reasons discussed above, appel-lees’ claims of negligence and product liability require proof of substantial-factor causation. See Flores, 232 S.W.3d at 774. We conclude that the evidence presented at trial is legally insufficient proof of substantial-factor causation necessary to support the jury’s negligence and strict liability marketing defect verdicts against Georgia-Pacific. We sustain Georgia-Pacific’s first issue.

APPELLANT’S SECOND AND THIRD ISSUES

In its second issue, Georgia-Pacific asserts that there was no clear and convincing evidence to support the jury’s finding of Georgia-Pacific’s gross negligence. Our disposition of Georgia-Pacific’s first issue necessarily disposes of appellees’ gross negligence claim against Georgia-Pacific. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994).

Georgia-Pacific contends in its third issue that the trial court erred in denying its motion for mistrial and in vacating the order granting a new trial, warranting a remand of this case to the trial court. Our disposition of Georgia-Pacific’s first issue makes it unnecessary to address Georgia-Pacific’s third issue. See Tex.R.App. P. 47.1.

CONCLUSION

There is legally insufficient evidence of causation to support the verdict against Georgia-Pacific. We reverse the trial court’s judgment and render judgment that appellees take nothing on their claims against Georgia-Pacific.

      . Harold Bostic, Timothy’s father, died while the case was being retried.

      . Joint compound, sometimes called "drywall mud,” is used to connect and smooth the seams of adjoining pieces of drywall, also called sheetrock, and to cover nail heads on sheets of drywall. Joint compound is spread in a thin coat and then smoothed. After it dries, uneven areas are further smoothed by sanding. This process is sometimes carried out multiple times in further refining the surface.

      . Prior to the 2008 final judgment in this case, the Texas Supreme Court issued its Flores opinion on toxic tort law in asbestos cases, including specific causation. Like the instant appeal, in Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304 (Tex.App.-Houston [1st Dist.] 2007, pet. denied), issued after Flores, the asbestos trial occurred before the Flores decision, but the appellate court was bound by Flores. Stephens, 239 S.W.3d at 321; see also Smith v. Kelly-Moore Paint Co., 307 S.W.3d 829, 834 (Tex.App.-Fort Worth 2010, no pet.) (appellate court bound by Flores as supreme court precedent); Lubbock Cnty. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (once supreme court announces proposition of law, that proposition is binding precedent and may not be modified or abrogated by court of appeals).

      . Chrysotile is the most abundant type of asbestos fiber and is a serpentine fiber consisting of “pliable curly fibrils which resemble scrolled tubes." Flores, 232 S.W.3d at 766 n. 4 (citing Lee S. Siegel, Note, As the Asbestos Crumbles: A Look at New Evidentiary Issues in Asbestos Related Property Damage Litigation, 20 Hofstra L.Rev. 1139, 1149 (1992)); Smith, 307 S.W.3d at 832 n. 3. The remaining commercial types of asbestos fibers are am-phiboles, which include amosite and crocidolite. Smith, 307 S.W.3d at 832, 837; Bartel v. John Crane, Inc., 316 F.Supp.2d 603, 606 (N.D.Ohio 2004), aff'd, 424 F.3d 488 (6th Cir.2005).

      . Dust containing asbestos fibers could be released by sanding or sweeping either formula and by mixing the dry formula.

      . In 1988, Timothy and Harold underwent testing to determine whether they had contracted an asbestos-related disease as a result of working at Knox Glass. A bronchial alveolar lavage (BAL) was performed on each of them to determine what type of fiber exposures had occurred. Two chrysotile and two amosite asbestos fibers were found in Timothy's BAL. There were additional fibers that were not asbestos that could not be identified. Three amosite asbestos fibers were found in Harold Bostic's BAL.

      . Timothy testified he worked summer months at Knox Glass in 1980, 1981, and 1982. Appellees seek to narrow the time period of exposure to asbestos and asbestos-containing products to three months by asserting that to be the cumulative amount of time Timothy worked in the hot end of the plant.

      . Appellees further assert that Timothy's exposure to Georgia-Pacific asbestos-containing joint compound "was far greater than any other asbestos exposure.” This is apparently based on appellees "quantifying the ratio of [Timothy’s] exposure to Georgia-Pacific asbestos joint compound as compared to his other exposures,” which according to appel-lees was "ten years of Georgia-Pacific asbestos joint compound versus three months of exposure at Knox-Glass [sic], six months at Palestine Contractors, potential household exposure, and sporadic brake work.” Without endorsing this methodology, we conclude this argument is inapposite to the "frequency, proximity, and regularity” test associated with substantial-factor causation.

      . According to Timothy’s work history sheets, for a period of over thirty years from the early 1970s, Timothy was exposed to asbestos fibers from Georgia-Pacific joint compounds through his work with or around them as a self-employed carpenter with a workweek of over forty hours, at various residences with Harold as a coworker, and through household exposure resulting from Harold’s work as a carpenter.

      . "Asbestos exposure is generally measured in fibers per cubic centimeter (fibers/cc) on an eight hour weighted average. This is calculated by taking the amount of time an individual is exposed to asbestos and mathematically calculating a time weighted average over an eight hour day.... In all urban environments, there is a level of asbestos in the ambient air.
      This level, often called the background level, varies from location to location and ranges from .000001 to .01 fiber/cc.” Bartel, 316 F.Supp.2d at 607.

      . " 'Friable' refers to breathable asbestos.” See Flores, 232 S.W.3d at 767 n. 6.


author: Justice FITZGERALD.

text:
    Ronald J. LATHAM, Appellant, v. David BURGHER, Appellee.
    No. 05-08-01477-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 27, 2010.

      John J. Marek, Addison, TX, for Appellant.
    G. Michael Stewart, Godwin Pappas Langley Ronquillo, LLP, Dallas, TX, for Appellee.
    Before Justices MOSELEY, BRIDGES, and FITZGERALD.
   OPINION

Opinion By

Justice FITZGERALD.

David Burgher sued Ronald J. Latham (“Latham”) and Latham Roofing, Inc.— Commercial (“Roofing Inc.”) alleging breach of contract and violations of the Texas Deceptive Trade Practices Act. The jury found that Roofing Inc. failed to comply with its agreement to repair Burger’s roof and that Roofing Inc. violated the DTPA in its dealings with Burgher. The jury further found that Latham was responsible for the conduct of Roofing Inc. On appeal, Latham challenges the legal and factual sufficiency of the evidence supporting the jury’s findings on alter ego, damages, and attorney’s fees. Latham also contends the trial court submitted an improper definition of “actual fraud” in the alter ego question, resulting in an improper verdict. For the reasons discussed below, we reverse the trial court’s award of actual damages and the award of interest based thereon; we affirm the remainder of the trial court’s judgment.

BACKGROUND

Burgher contracted with Roofing Inc. in 2003 to repair the tile roof on his residence. The contract price for this initial work was $4500.00. Three years later, Burgher noticed leakage and called Roofing Inc. Workers for Roofing Inc. came to Burgher’s home and did further repair work costing $695.00. Thus, Burgher paid Roofing Inc. a total of $5195.00. Several months later, when more leaking was discovered, Burgher hired another company, Staz On Roofing, to repair the roof at a cost of $3,429.00.

Burgher’s lawyer sent Roofing Inc. a demand letter threatening suit in September 2006. In November of that year, La-tham dissolved Roofing Inc. Burgher sued both Roofing Inc. and Latham individually for breach of contract and DTPA violations. The jury found Roofing Inc. had breached its contract and violated the DTPA, and it found Latham should be responsible for those acts. The trial court signed a judgment making the two defendants jointly and severally liable for the damages found by the jury.

Latham has appealed the judgment against him personally. The findings of breach of contract and violations of the DTPA by Latham’s company remain unchallenged.

Definition of “Actual Fraud”

In his second issue, Latham contends the trial court submitted an improper definition of “actual fraud” in the alter ego jury question. The court’s definition read:

As used in this Question Eleven, the term “actual fraud” means “involving dishonest or purpose or intent to deceive.”

At the charge conference, Latham’s counsel objected to this definition, tendered what he called an amended jury instruction, and stated he believed the amended instruction should be included with the trial court’s instruction. The tendered instruction read:

Fraud occurs when—
a. a party f[a]ils to disclose a material fact within the knowledge of the party,
b. the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth,
c. the party intends to induce the other party to take some action by failing to disclose the fact, and
d. the other party suffers injury as a result of acting without knowledge of the undisclosed fact.

Latham’s tendered instruction is drawn from Pattern Jury Charge 105.4, which is titled “Instruction on Common-Law Fraud — Failure to Disclose When There Is Duty to Disclose.” Its accompanying commentary states that it is to be used if the court finds there is a duty to disclose. The trial court denied Latham’s request to include the instruction.

In all jury cases, the trial court must submit instructions and definitions to enable the jury to render a verdict properly. Tex.R. Civ. P. 277. A valid instruction must: (1) assist the jury, (2) accurately state the law, and (3) find support in the pleadings and evidence. Union Pac. R.R. v. Williams, 85 S.W.3d 162, 166 (Tex.2002). The trial court has considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex.1997). Therefore, we will not disturb the trial court’s decision on which instructions to submit to the jury absent an abuse of discretion. McCarthy v. Wani Venture, A.S., 251 S.W.3d 573, 584 (Tex.App.-Houston [1st Dist.] 2007, pet. den.).

Latham objected to the actual fraud definition given by the trial court and tendered an instruction rooted in the tort of fraud. This instruction — based on fraudulent failure to disclose information the defendant purportedly had a legal duty to disclose — bore no connection to Burgher’s substantive claims of breach of contract and DTPA violations. Moreover, in the context of piercing the corporate veil, actual fraud is not equivalent to the tort of fraud. Instead, in that context, actual fraud involves “dishonesty of purpose or intent to deceive.” Castleberry v. Branscum, 721 S.W.2d 270, 273 (Tex.1986); Priddy v. Rawson, 282 S.W.3d 588 (Tex.App.-Houston [14th Dist.] 2009, pet. den.); Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 387 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Indeed, this Court has recently approved an actual-fraud instruction essentially identical to the one given in La-tham’s case. In Dick’s Last Resort of West End, Inc. v. Market/Ross, Ltd., 273 S.W.3d 905, 908 (Tex.App.-Dallas, 2008 pet. denied), we rejected the argument that an actual fraud instruction should include elements of the tort of common law fraud. We concluded the trial court properly instructed the jury that actual fraud means conduct involving either dishonesty of purpose or intent to deceive. Id. at 909-10. The instruction given in Dick’s Last Resort is included in the comments to the pattern jury charges for piercing the corporate veil. See id. at 909 (citing State Bar of Tex., Texas Pattern Jury Charges, Business, Consumer, Insurance, Employment PJC 108.2 cmt. at 191 (2006 ed.)). Accordingly, we discern no abuse of discretion in the trial court’s use of that definition in this case as well.

Latham also complains of the wording of the definition as it was given in the charge. The definition does include a typographical error. The definition that originated in Castleberry and is found in the comments to the Pattern Jury Charge reads: “Actual fraud” means actions involving dishonesty of purpose or intent to deceive. See PJC 108.2 cmt. at 199 (2008 ed.) (emphasis added). The definition submitted in Latham’s case reads: “Actual fraud” means “involving dishonest or purpose or intent to deceive.” (Emphasis added.) However, La-tham did not object on this ground, and he points to nothing in the record that indicates the jurors were confused by the wording in the charge. Latham has preserved nothing for our review on this complaint.

We overrule Latham’s second issue.

Sufficiency of the Evidence

Latham raises three challenges to the sufficiency of the evidence supporting the trial court’s judgment entered on the jury’s findings. In a legal sufficiency review, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We ask whether the evidence — crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not — would permit reasonable and fair-minded people to reach the verdict under review. Id. at 827. In our factual sufficiency review, we consider all the evidence; we will set aside the finding only if the evidence supporting the finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

Alter Ego

In his first issue, Latham challenges the legal and factual sufficiency of the evidence supporting the jury’s finding of alter ego. Traditionally, we apply the alter ego doctrine to pierce the corporate veil when there is “a unity between the corporation and the individual to the extent that the corporation’s separateness has ceased, and holding only the corporation liable would be unjust.” Castleberry, 721 S.W.2d at 272; Sparks v. Booth, 232 S.W.3d 853, 868 (Tex.App.-Dallas 2007, no pet.). But the issue of alter ego has been codified to a substantial degree. The current statute states in relevant part:

(a) A holder of shares ... may not be held liable to the corporation or its obli-gees with respect to:
* ⅜ *
(2) any contractual obligation of the corporation or any matter arising from the obligation on the basis that the holder ... is or was the alter ego of the corporation ... or other similar theory ...
(b) Subsection (a)(2) does not prevent or limit the liability of a holder ... if the obligee demonstrates that the holder ... caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obli-gee primarily for the direct personal benefit of the holder ...

Tex. Bus. Orgs. Code Ann. § 21.223 (Vernon Supp.2009) (version first effective Jan. 1, 2006; previously enacted at Tex. Bus. Corp. Act art. 2.21, § A (Vernon 2003)). This statutory standard is included in the pattern jury charge alter ego instruction, which was submitted to the jury in this case. See PJC 108.2 at 198.

Latham argues specifically that the evidence was legally and factually insufficient to support findings: that Roofing Inc. was organized and operated as a mere tool or business conduit for Latham; that there was such unity between Roofing Inc. and Latham that their separateness had ceased, and holding only Roofing Inc. responsible would result in injustice; and that Latham used Roofing Inc. for the purpose of perpetrating and did perpetrate an actual fraud on Burgher for the direct personal benefit of Latham. We disagree. For example, the following evidence could have led a reasonable and fair-minded person to conclude Latham was Roofing Inc.’s alter ego.

• According to financial records of the corporation, Latham was the president of Roofing Inc. and his wife was its secretary. Latham and his wife were Roofing Inc.’s sole shareholders. This would not be sufficient on its own to prove alter ego, but it is evidence of the degree of control Latham exercised over Roofing Inc.

• The record includes corporate tax returns for Roofing Inc. for the years 2003 through 2006. In each of those years, the entire amount of the corporation’s ordinary business income was distributed in equal amounts to La-tham and his wife. In other words, all profits of Roofing Inc. flowed to La-tham.

• Financial documents in the record also establish that in June 2006, Latham accepted a personal loan in the amount of $51,000 from Roofing Inc. Latham testified he paid the loan back with interest; the financial documents do not establish that fact. The jury was best situated to assess the significance of this evidence and Latham’s credibility on this point.

• In 2006 — shortly after Latham received a demand letter from Burgher’s attorney concerning his intent to file this lawsuit — Latham dissolved Roofing Inc. The dissolution documents represented that all debts, liabilities, and obligations of Roofing Inc. had been satisfied or provided for and that all remaining property and assets of Roofing Inc. had been distributed to its shareholders, i.e., to Latham and his wife. No funds were set aside for the possible liability of Roofing Inc. to Burgher. Latham testified he closed the corporation down on the advice of his bank’s president because forged checks were being written on the corporate account. The bank president did not testify. But there was testimony at trial that the forged checks were passed (and paid by the bank) in May, some six months earlier. An assistant vice president of the bank testified that in May she had recommended Latham close the account, not his business, to stop the problem checks. The jury was best situated to assess the significance of this evidence and Latham’s credibility on this issue as well.

Latham stresses that he never dealt with Burgher personally and that the breach and DTPA findings by the jury were against the corporation, not him personally. It is true that the corporate form will normally insulate shareholders, officers, and directors from liability for corporate obligations. Castleberry, 721 S.W.2d at 271. “[B]ut when these individuals abuse the corporate privilege, courts will disregard the corporate fiction and hold them individually liable.” Id. Latham relies on the undisputed facts that Roofing Inc. — at least for some time — had a separate bank account from Latham personally and that it filed corporate income tax returns. But viewing all the evidence neutrally, those facts cannot outweigh the evidence indicating that Roofing Inc. was operated as a mere business conduit for Latham. The ultimate expression of Latham’s use of Roofing Inc. was his dissolution of the corporation after Burgher’s attorneys threatened suit. Latham’s arguments suggest Burgher should look to Roofing Inc. to be made whole, but Latham himself destroyed that option when he dissolved Roofing Inc. And having dissolved the corporation, he took its assets and property for himself. A rational juror could have decided that holding only the non-existent Roofing Inc. responsible would result in injustice. A rational juror could also have decided La-tham’s conduct in dissolving the corporation in the face of Burgher’s claim represented dishonesty of purpose or an intent to deceive, i.e., actual fraud. See Castleberry, 721 S.W.2d at 273; Dick’s Last Resort., 273 S.W.3d at 909-10.

The corporate structure’s limitation on liability can be ignored only “when the corporate form has been used as part of a basically unfair device to achieve an inequitable result.” SSP Partners v. Gladstrong Investments (USA) Corp., 275 S.W.3d 444, 451 (Tex.2008) (quoting Castleberry, 721 S.W.2d at 271). A rational jury could have concluded this was just such a case. Whether we consider the evidence in the light most favorable to the verdict or all the evidence in a neutral light, ample evidence supports the jury’s alter ego finding. See City of Keller, 168 S.W.3d at 822; Dow Chem. Co., 46 S.W.3d at 242. We overrule Latham’s first issue.

Damages

In his third issue, Latham contends the evidence was legally and factually insufficient to support the jury’s findings on actual and treble damages. Latham attacks the damages findings on a number of bases.

Actual Damages

Latham first contends Burgher cannot recover the full amount paid to Roofing Inc. because Burgher himself did not write the check for the original payment to the company; his fiancée did. We reject this argument. The obligation to pay Roofing Inc. was Burgher’s, and the injury suffered was to Burgher’s residence. The fact someone else paid all or some of what was due for him does not mean he was not injured by the faulty work. See TCA Bldg. Co. v. Entech, Inc., 86 S.W.3d 667, 672 (Tex.App.-Austin 2002, no pet.) (not necessary that offeree itself furnish consideration: can be paid by another person).

Latham makes two specific sufficiency arguments concerning damages, one to the evidence supporting out-of-pocket damages and one to the expenses or cost-of-repairs damages. Both challenges are resolved by the testimony of Rob Rams-dale, an estimator and sales person for Staz On Roofing. Latham first contends Burgher’s claim for out-of-pocket damages fails because he failed to prove — and subtract out — the value of the repairs initially performed by Roofing Inc. in 2003. La-tham contends those repairs must have had some value because Burgher was content with the work for three years. However, Ramsdale testified that the work initially contracted for was not performed by Latham. Ramsdale also described a series of temporary fixes he saw on the roof: peel-and-stick covering placed over broken tiles and tears in the old underlayment; caulking around other broken tiles; foam blown into the chimney area. According to Ramsdale, none of these “repairs” would have kept water out. Thus, none would have prevented water from rotting the wood below the roofing material and eventually entering the house. It is true the Burghers were not aware of the extent of the problem until Ramsdale examined the roof. However, the jury could have rationally believed that during the time between 2003 and 2006, the roof was quietly but steadily getting worse and worse. If jurors accepted Ramsdale’s testimony, they could rationally have believed that Roofing Inc.’s “repairs” had no value to the Burghers from the outset. In that case, out-of-pocket damages would have included all payments made by the Burghers to Roofing Inc.

Latham also contends there was insufficient evidence supporting the jury’s cost-of-repair finding, because Staz On Roofing did not segregate repairs it made that were unrelated to the prior work by Roofing Inc. The record supports an inference that all repairs made by Staz On Roofing were either (1) repairs Roofing Inc. should have made pursuant to its contract with Burgher, or (2) repairs necessitated by Roofing Inc.’s failure to repair the roof properly in the first instance. Both of these amounts were properly included in the jury’s cost-of-repair calculation.

Latham next contends that Burgher was given a double recovery because the trial court’s judgment included both his out-of-pocket damages ($5195) and his cost-of-repair or benefit-of-the-bargain damages ($3429). In a deceptive trade practices case, a plaintiff may recover under either the benefit-of-the-bargain measure or the out-of-pocket measure, whichever gives the greater recovery; the plaintiff may not recover both. Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 590 (Tex.App.-Fort Worth, 1996, writ den.). Burgher attempts to distinguish Muman, in which the plaintiff obtained a jury verdict on DTPA claims only. Burgher argues that because he obtained favorable jury findings on both his contract and DTPA claims, he should recover under both theories. But Burgher suffered a single injury: damage to his residence caused by shoddy roofing work. Although he may plead and try more than one theory of liability, he may recover under only one. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex.2006). See also Tex. Bus. & Com.Code Ann. § 17.43 (“The remedies provided in this subchapter are in addition to any other procedures or remedies provided for in any other law; provided, however, that no recovery shall be permitted under both this subchapter and another law of both damages and penalties for the same act or practice.”). We conclude Latham’s argument concerning a double recovery of actual damages is well-taken.

Treble Damages

Latham raises three arguments under the category of treble damages. First, he contends there is no evidence to support the jury’s treble damages award because there is no evidence of knowing conduct. The jury found knowing conduct by Roofing Inc., not by Latham. Accordingly, that finding goes to the liability of Roofing Inc., just as the breach of contract and DTPA findings do. Roofing Inc. has not appealed the finding; Latham has no standing to do so. See Menetti v. Chavers, 974 S.W.2d 168, 171-72 (Tex.App.-San Antonio, 1998 no pet.).

Second, Latham argues Burgher is not entitled to treble damages because he has not proven entitlement to actual damages. We have concluded Burgher is entitled to actual damages, so we reject this argument.

Third, Latham argues Burgher failed to satisfy a condition precedent to recovery under the DTPA, namely making a proper written demand. At trial, however, Latham admitted he had received a September 5, 2006 letter from Burgher’s attorneys informing Latham that they intended to assert claims on behalf of Burgher. And while Latham testified he did not remember all the contents of the letter/ he did not dispute that the letter included notice of claims for both breach of contract and DTPA violations. There was ample evidence of a written DTPA demand.

We sustain Latham’s third issue to the extent it complains of a double recovery of actual damages. In all other respects, we overrule the issue.

Attorney’s Fees

In his fourth issue, Latham challenges the legal and factual sufficiency of the evidence to support the jury’s award of attorney’s fees to Roofing Inc. Latham argues initially that the award should be reversed because Burgher failed to make a proper demand for fees for both his contract claim and his DTPA claim. At the time of trial, Burgher’s live pleading stated:

Plaintiff has provided Defendants with written notice under Tex. Bus. & Com. Code § 17.50(5)(b) of Defendants’ violation of the DTPA and of Plaintiffs intent to seek damages.
All conditions precedent have been performed or have occurred as required by Tex.R. Civ. P. 54.

Latham’s live pleading, on the other hand, contained verified denials stating:

Plaintiffs have failed to perform all conditions precedent necessary to recover, including proof of contract and performance by Plaintiffs.
Plaintiffs have failed to give proper notice of their claims pursuant to the Texas Deceptive Trade Practices-Consumer Protection Act.

The record does not identify — or indicate that Latham pursued — any specific defect in Burgher’s demand for attorney’s fees beyond these general recitals. On appeal, Latham argues specifically that Burgher failed to prove he had made demands in writing. But, as we discussed above, La-tham admitted he had received the September 2006 demand letter that included notice of claims for both breach of contract and DTPA violations. Moreover, Latham acknowledged he was president of Roofing Inc. at the time he received the notice. Thus, notice to Latham was notice to Roofing Inc. Equisource Realty Corp. v. Crown Life Ins. Co., 854 S.W.2d 691, 696 (Tex.App.-Dallas 1993, no writ) (notice to an agent is deemed notice to the principal) (citing Williams v. Jennings, 755 S.W.2d 874, 883 (Tex.App.-Houston [14th Dist.] 1988, writ denied)).

Latham also complains that Burgher failed to segregate activities for which fees are recoverable from those for which fees are not recoverable. Latham did not object to a lack of segregation and so has not preserved error on this issue. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex.1997).

We overrule Latham’s fourth issue.

Conclusion

The trial court’s award of actual damages in this case contains a double recovery. Accordingly, we reverse the portions of the trial court’s judgment awarding (a) actual damages and (b) interest based on the actual damages award. We remand this cause for entry of a damages award that eliminates the double recovery in accordance with this opinion, and for recalculation of interest based on the revised award. In all other respects, we affirm the trial court’s judgment.

      . Latham also contends the evidence is insufficient to support the jury's implied finding of actual fraud, a threshold finding necessary for the ultimate finding of alter ego. Ordinarily we would address the legal sufficiency challenge first because it could lead to rendition of the cause. However, before we can measure the sufficiency of the evidence, we must identify the standard against which the evidence is to be measured. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex.2002). If there has been no objection to the jury charge, then the charge actually submitted is the proper measure of the sufficiency of the evidence. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). But when, as in this case, an objection to the charge is properly preserved, we determine whether the charge submitted was erroneous and then measure the sufficiency of the evidence against the correct standard. See St. Joseph Hosp., 94 S.W.3d at 530.

      . Question No. 11 submitted the pattern jury charge’s basic question for piercing the corporate veil: Is Ronald Latham responsible for the conduct of Latham Roofing — Commercial? The question is to be followed by one or more instructions that explain under what circumstances the corporate veil may be pierced. The alter ego instruction submitted by the court read:
      Ronald Latham is “responsible” for the conduct of Latham Roofing Inc. — Commercial if:
      Latham Roofing Inc. — Commercial was organized and operated as a mere tool or business conduit of Ronald Latham; there was such unity between Latham Roofing Inc. — Commercial and Ronald Latham that the separateness of Latham Roofing Inc. — Commercial had ceased and holding only Latham Roofing Inc.— Commercial responsible would result in injustice; and Ronald Latham caused La-tham Roofing Inc. — Commercial to be used for the purpose of perpetuating and did perpetuate an actual fraud on Plaintiff primarily for the direct personal benefit of Ronald Latham.
      In deciding whether there was such unity between Latham Roofing Inc. — Commercial and Ronald Latham that the separateness of Latham Roofing Inc. — Commercial had ceased, you are to consider the total dealings of Latham Roofing Inc. — Commercial and Ronald Latham, including:
      1. the degree to which Latham Roofing Inc. — Commercial’s property had been kept separate from that of Ronald La-tham;
      2. the amount of financial interest, ownership, and control Ronald Latham maintained over Latham Roofing Inc. — Commercial; and
      3. whether Latham Roofing Inc. — Commercial had been used for personal purposes of Ronald Latham.

      . Although Latham’s wife is identified as an officer and a shareholder in financial documents, Latham stated in a February 2006 letter to the Texas Secretary of State: “I am the sole owner, sole officer and sole director of Latham Roofing Inc. — Commercial.”

      . To avoid confusion, we note that Burgher's contract claim and his DTPA claim would both allow recovery of attorney's fees. Thus, as to the claims that were submitted to the jury, a requirement of segregation never arose in this case. See Chapa, 212 S.W.3d at 311.