author: JAMES T. WORTHEN, Chief Justice.

text:
    Wendell REEDER, Appellant v. WOOD COUNTY ENERGY L.L.C., Wood County Oil & Gas, Ltd., Nelson Operating, Inc., Dekrfour, Inc., Bobby Noble, Exzena Oil Corporation, David Fry and Patricia Fry, Appellees.
    No. 12-08-00175-CV.
    Court of Appeals of Texas, Tyler.
    July 14, 2010.
    Rehearing Overruled Sept. 16, 2010.

      J. Bennett White, Tyler and Christopher T. Massey, for Wendell Reeder.
    Jay J. Madrid, Dallas, Laurie C. Jardine and Gregory D. Smith, for Wood County Energy, LLC.
    Marcus A. Carroll, Tyler and Gregory D. Smith, for David Fry, Nelson Operating, Exzena Oil Corporation, Inc., Dekrf-our, Inc. and Bobby Noble.
    Laurie C. Jardine, Jay J. Madrid, Dallas and Gregory D. Smith, for Wood County Oil & Gas, Ltd.
    James Wade, pro se.
    Sam B. Cobb, Tyler, for East Texas Producers & Royalty Owners Association, Woodbine Production Corporation, M-C Production & Drilling Co., Inc., TMR Exploration, Inc., The Long Trusts, The Ge-necov Group, Inc., Southwest Operating Co., Inc., Atlantis Oil Co. and Ridge Petroleum.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION ON REHEARING

JAMES T. WORTHEN, Chief Justice.

Wendell Reeder has filed a motion for rehearing, which is overruled. We withdraw our opinion of April 28, 2010 and substitute the following opinion in its place.

This is a breach of contract case arising out of competing claims to certain interests in an old oil field. Following a jury trial, the trial court rendered a judgment against Wendell Reeder. The judgment awarded Patricia Fry $7,500.00 plus prejudgment interest. The judgment also awarded Dekrfour, Inc., Nelson Operating, Inc., Bobby Noble, and Wood County Oil and Gas, Ltd. $872,493.25 plus prejudgment interest, along with $125,000.00 in attorney’s fees plus prejudgment interest. Reeder raises seventeen issues challenging the trial court’s conclusion that he is bound by a 1996 joint operating agreement, the jury’s findings that he breached the joint operating agreement, and the jury’s award of damages, attorney’s fees, and prejudgment interest. We modify the damage awards and prejudgment interest awards in part, suggest a partial remittitur of attorney’s fees, and affirm the judgment as modified.

Background

The Forest Hill Field Sub-Clarksville Unit was created in 1965, and the Forest Hill Field Harris Sand Unit was created in 1975. The two units overlapped, and oil was being produced from both. In 1995, Dekr, Inc. purchased the working interest in the Forest Hill Field and transferred it to Dekrfour, Inc. (“Dekrfour”). David Fry owned both companies.

In 1996, Dekrfour and Secondary Oil Corporation, Inc. entered into a mutual agreement regarding Dekrfour’s sale of an 85% working interest to Secondary. The interest was limited to the Harris Sand formation, and to specific wells within the Harris Sand Unit. Dekrfour retained a 15% carried working interest. The mutual agreement became part of a joint operating agreement (“JOA”) that Dekrfour and Secondary executed eleven days later. Pursuant to the JOA, Dekrfour, Secondary, and Secondary’s sister corporation would share the existing wellbores in the production of the Sub-Clarksville and Harris Sand Units. Dekrfour transferred the 85% working interest to Secondary as agreed, and also transferred a 10% carried working interest in the same formation and wells to Nelson Operating, Inc., another of David Fry’s companies. In the same document, Dekrfour transferred its interest in all other formations in these wells to Nelson.

In 1998, Reeder became operator of the Harris Sand Unit when he and Don Dacus purchased 87.5% of the working interest in the unit wells previously transferred to Secondary. Dekrfour and Nelson collectively owned a 12.5% carried working interest in the Harris Sand Unit. Reeder acquired Dacus’s share of the working interest after Dacus died. In May 2004, Reeder formed a limited partnership, Wood County Oil and Gas, Ltd. (“Wood County Oil”) in which Reeder and James Wade each owned 45% and Hattie Seher-bach owned 10%. Reeder, who had no prior experience in oilfield operations, continued to maintain from 1998 forward that he was the operator of the Harris Sand Unit.

From 1998 forward, Reeder’s relationship with David Fry and his companies gradually developed into an adversarial one. In April 2003, Bobby Noble purchased a portion of Dekrfour’s and Nelson’s Sub-Clarksville interest. Beginning in 2008, however, Reeder refused to allow Dekrfour, Nelson, and Noble (collectively, the “Fry Interests”) to use any of the wellbores he controlled to produce from the Sub-Clarksville Unit. Consequently, from 2003 forward, the Fry Interests were unable to develop new production out of the Sub-Clarksville Unit. By the summer of 2006, the Texas Railroad Commission had sealed wells and severed the pipeline from the Harris Sand Unit. In an August 8, 2006 letter to Wade and Scherbach, Reeder stated that he was “prepared to engage necessary services from appropriate geologists and others to accomplish the repairs to get the pumping wells unsealed and the severance released.” But he did nothing. By September 2006, all production had ceased in the Harris Sand Unit. Because oil was not produced from the Harris Sand Unit in paying quantities, the unit expired, and the leases not held by production from other zones were lost.

Litigation Regarding Interests

In May 2004, Reeder filed a suit against the Fry Interests asserting that he was the operator of certain wells in the Harris Sand Unit and that he had the exclusive right to possession of the wellbores for the purpose of producing oil from them. David and Patricia Fry were also named as defendants. Later, Wood County Oil and Gas, Ltd. and its general partner, Wood County Energy, L.L.C. (collectively “Wood County”) joined Reeder’s suit as plaintiffs seeking damages in connection with those wells. Reeder and Wood County contended that they had the exclusive right to produce from the Harris Sand Unit, they retained the right to the well-bores to the exclusion of the Fry Interests, and that the Fry Interests had interfered with those rights. Reeder and Wood County further alleged that the Fry Interests had unlawfully converted production from the Harris Sand Unit; committed trespass, conversion, and theft; and wrongfully dispossessed Reeder and Wood County of their property, causing damage to the existing wells in the process. Reed-er and Wood County sought damages and a declaratory judgment that the Fry Interests had no right to interfere with the wellbores or with Reeder’s rights as operator. They also sought an injunction to keep the Fry Interests from interfering with their right to possession of the wells in question.

The Fry Interests filed a cross-action against Reeder and Wood County relating to the same wells. They alleged that Reeder, as successor in interest under the assignment of the JOA, had breached the JOA. Additionally, the Fry Interests alleged that Reeder failed to produce the unit in paying quantities and that Reeder had converted their personal property. In addition to damages, they sought a declaratory judgment specifying their rights to develop the Sub-Clarksville Unit, rescinding the JOA, and determining the title issues involving Wood County. Patricia Fry alleged that she had previously operated some of the wells and had been fined by the Texas Railroad Commission because Reeder had failed to file a document required by the Commission.

Later, Wood County switched sides and asserted that if the Fry Interests suffered any damages, those damages were caused by Reeder in his capacity as operator of the Harris Sand Unit. Wood County then filed a cross-claim against Reeder for all damages that it might have suffered as a result of his actions as operator. Further, Wood County sued Reeder for any damages suffered as a result of any lost leases and loss of the unit. Wood County non-suited its claims against the Fry Interests, although it continued to seek a declaratory judgment regarding its ownership interest.

After a trial before a jury, the trial court signed its final judgment ordering that Reeder take nothing and declaring that Reeder owns no mineral interest in the leases covering the former Harris Sand Unit or the former Sub-Clarksville Unit. The trial court ordered Reeder to pay Patricia Fry $7,500.00 plus prejudgment interest for his failure to file the document with the Railroad Commission. The trial court further ordered that the Fry Interests and Wood County Oil recover actual damages from Reeder totaling $872,493.25, plus prejudgment interest. Reeder was also ordered to pay $125,000.00 in attorney’s fees, plus prejudgment interest. Reeder timely appealed the damage awards against him.

Sufficiency of the Evidence

In his first ten issues, Reeder maintains that the evidence is insufficient to support the jury’s findings that he breached the JOA by failing to maintain production and by failing to offer Well No. 116 back to the nonoperators before he plugged it.

Standard of Review — Legal Sufficiency

When the appellant is challenging the legal sufficiency of the evidence to support a finding on which he did not have the burden of proof at trial, the appellant must demonstrate on appeal that no evidence exists to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing for legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict. See AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex.2008). The test for legal sufficiency “must always be whether the evidence at trial would enable [a] reasonable and fair-minded [fact finder] to reach the [result] under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Legal sufficiency review must credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. Id.

We sustain a legal sufficiency challenge when the record discloses one of the following situations: (1) there is a complete absence of evidence establishing a vital fact, (2) the court is barred by rules of law or of 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) the evidence conclusively establishes the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). Anything more than a scintilla of evidence is legally sufficient to support the finding. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

The fact finder is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. City of Keller, 168 S.W.3d at 819. Reviewing courts must assume that the fact finder decided all credibility questions in favor of the verdict, crediting testimony favorable to the verdict and disbelieving testimony contrary to it if a reasonable person could do so. Id.

Standard of Review — Factual Sufficiency

If a party is attacking the factual sufficiency of the evidence to support an adverse finding on an issue to which the other party had the burden of proof, the attacking party must demonstrate that there is insufficient evidence to support the adverse finding. Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). In addressing a factual sufficiency of the evidence challenge to a jury verdict, an appellate court must consider and weigh all of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). The verdict should be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). However, this court is not a fact finder, and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Durban v. Guajardo, 79 S.W.3d 198, 208 (Tex.App.-Dallas 2002, no pet.); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).

Applicability of JOA to Reeder

In his first and sixth issues, Reeder contends that the JOA did not apply to him as the operator because he was not a successor to the operator designated in the 1996 agreement and therefore he did not owe any duties under the JOA. He does not challenge the validity of the JOA. He concedes that he received a copy of the JOA when he became operator in 1998 but argues that it applied only to the original parties who signed the agreements in October 1996. We disagree.

David Fry testified that until 1996 he owned the entire working interest in both units. He stated that when he sold an interest to Secondary in 1996, he and Secondary were required by the 1965 Sub-Clarksville unit agreement and the 1975 Harris Sand unit agreement to execute a JOA. The recorded unit agreements for both the Sub-Clarksville Unit and the Harris Sand Unit included the following clauses:

1.9 Unit Operating Agreement, shall mean an Agreement (together with all amendments thereof) to be executed by and between the Working Interest Owners covering the operations on the Unit Area for the production of Unitized Substances from the Unitized Formation, which said Agreement will be executed promptly after more than one Working Interest Owner becomes a party to this Agreement.
4.1 Unit Operator. Unit Operator shall have the exclusive right to conduct Unit Operations. The operations shall conform to the provisions of this agreement and the Unit Operating Agreement, if executed. If there is any conflict between such agreements, this agreement shall govern.
13.1 Agreement is a Covenant. All of the terms and provisions of this agreement shall extend to, be binding upon and inure to the benefit of the respective heirs, devisees, legal representatives, successors and assigns of the parties hereto, and shall constitute a covenant running with the lands, leases and interests covered hereby.

The JOA specifically states that it is “binding upon and shall insure [sic] to the benefit of the parties, their heirs, successors and assigns forever, continuing in full force and so long as the subject leases remain intact.” The mutual agreement between Dekrfour and Secondary was incorporated into the JOA and also states that it “shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, successors, and permitted assigns.” An operating agreement is typically in effect for as long as any of the oil and gas leases subject to the JOA remain in effect. See Ernest E. Smith & Jacqueline Lang Weaver, Texas Law of Oil and Gas § 17.3(A)(1) (2009). A successor operator is bound to the terms of the operating agreement under which he is chosen, even though he is not familiar with the provisions and would not have intended to accept some of the provisions. Id. at § 17.3(F)(1).

Reeder acknowledged receiving the JOA. Reeder also acknowledged in writing to the parties in this lawsuit, on three separate occasions, that he was the operator. In his suit filed in May 2004 against the Fry Interests, he described himself as the “designated and official operator” of the Forest Hill Harris Sand Unit. In June 2005, Reeder sent a letter to the attorney for Wade and Scherbach stating that he was the operator of the Forest Hill Harris Sand Unit. In the previously quoted August 2006 letter sent to Wade and Scher-bach referencing the Forest Hill Harris Sand Unit, he included a caption across the top that emphatically stated “WENDELL REEDER OPERATOR.” Further, as we discuss later in this opinion, Reeder attempted to avail himself of the exculpatory clause in the JOA.

Ratification of a JOA occurs when the operator recognizes its validity by acting and performing under its terms, as well as affirmatively acknowledging it. See Stable Energy, L.P. v. Newberry, 990 S.W.2d 538, 547 (Tex.App.-Austin 1999, pet. denied). The record before us is replete with instances of Reeder’s exercising the managerial authority given to the operator under the terms of the JOA.

Further, the doctrine of quasi-estoppel precludes a party from accepting the benefits of a transaction and then subsequently taking an inconsistent position to avoid corresponding obligations or effects. Fasken Land & Minerals, Ltd. v. Occidental Permian, Ltd., 225 S.W.3d 577, 593 (Tex.App.-El Paso 2005, no pet.); Newberry, 999 S.W.2d at 548. The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one in which he acquiesced, or under which he accepted a benefit. Newberry, 999 S.W.2d at 548. Here, Reeder accepted the benefits and authorities of being the unit operator provided to him under the JOA. We hold that he ratified the JOA and is estopped from asserting that he was not bound by it. Thus, the evidence is legally and factually sufficient to prove that Reeder is bound by the JOA. We overrule Reeder’s first and sixth issues.

Exculpatory Clause in JOA

In several of his issues, Reeder attacks the jury’s affirmative answers to Questions 8 and 18 that he breached his duty to the Fry Interests and Wood County Oil. Due to the language of the jury charge, we must determine the effect of the exculpatory clause before we can address the sufficiency of the evidence complaints presented. The jury was given the same instructions for both questions:

You are instructed that the joint operating agreement requires the Operator to conduct operations in a good and workmanlike manner. A good and workmanlike manner requires the operator to act as “a reasonably prudent operator.”
You are further instructed that the Operator is not liable under this standard unless Operator’s conduct amounts to gross negligence or willful misconduct.
You are further instructed that “gross negligence” means that entire want of care which would raise the belief that the act or omission complained or [sic] was a result of a conscious indifference to the right or welfare of the person or persons to be affected by it.

Because the jury was instructed that his conduct must rise to the level of gross negligence or willful misconduct, Reeder argues that the findings cannot stand because the evidence does not show that he committed gross negligence or willful misconduct. The “gross negligence or willful misconduct” language was apparently lifted from what is known as the exculpatory clause in the JOA:

3. [Operator] shall be the Operator of the Contract Area, and shall conduct and direct and have full control of all operations on the Contract Area as permitted and required by, and within the limits of this agreement.... Operator shall conduct its activities under this agreement as a reasonable prudent operator, in a good and workmanlike manner, with due diligence and in accordance with good oilfield practice, but in no event shall it have any liability as Operator to the other parties for losses sustained or liabilities incurred except such as may result from gross negligence or willful misconduct.

We have previously interpreted a similar exculpatory clause which reads, in relevant part, as follows:

[Operator] ... shall conduct and direct and have full control of all operations on the Contract Area as permitted and required by, and within the limits of, this agreement. It shall conduct all such operations in a good and workmanlike manner, but it shall have no liability as Operator to the other parties for losses sustained or liabilities incurred, except such as may result from gross negligence or willful misconduct.

Castle Tex. Prod. Ltd. P’ship v. Long Trusts, 134 S.W.3d 267, 283 n. 4 (Tex.App.Tyler 2003, pet. denied). There, we held that this exculpatory clause was limited to claims that the operator failed to act as a reasonably prudent operator in its operations in the contract area and did not apply to a claim that it otherwise breached the JOAs. Id. at 283. Although the exculpatory clause under which Reeder operated includes the phrase “its activities under this agreement as a reasonable prudent operator,” the exculpatory clause is located within the paragraph describing “operations on the contract area” as the exculpatory clause was in Long Trusts. See id. We see no meaningful difference between the two exculpatory clauses. The complaints made against Reeder pertain to his alleged breaches of the JOA. Therefore, we hold that the JOA’s exculpatory clause does not apply to the claims addressed by Questions 8 and 18.

During the charge conference held before the court submitted the charge to the jury, the Fry Interests and Wood County objected to the gross negligence and willful misconduct instruction being submitted to the jury, contending this was a breach of contract case. The trial court overruled that objection. As we have discussed above, the standards of care provided in the exculpatory clause do not apply to what this case was all about — a breach of contract. Thus, the gross negligence and willful misconduct instruction should not have been included in the charge.

To preserve a complaint that an instruction in a,charge is defective, the party who does not rely on the instruction need only object. First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 475 (Tex.2004) (Wainwright, J., concurring). An objection is sufficient to preserve error in a defective instruction. A request of substantially correct language is not required. Id. Because the trial court submitted improper instructions that were properly objected to, we measure the legal and factual sufficiency of the evidence supporting the jury’s findings on Questions 8 and 18 against the elements of breach of contract, not gross negligence and willful misconduct. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex.2002). Those elements are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80, 86 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

Obligation to Maintain Production of Units

In issues two through five, Reeder contends the evidence is legally and factually insufficient to support the jury’s answer to Question 8 that he breached his duty as operator by failing to maintain production in paying quantities or other operations in the Forest Hill Field. He argues that he owes no duty to the Fry Interests to carry leases or maintain production because, although Dekrfour and Nelson classified their interest as a carried working interest, their interest bears none of the costs of production and “in reality they are owners of an overriding royalty.” He argues that an overriding royalty interest is carved out of the working interest, is nonparticipating, and is wholly dependent on the lessee to keep the lease alive. Accordingly, he asserts that he has no duty to keep the overriding royalty alive and where there is no duty, there can be no breach. He also argues that the failure to maintain production in paying quantities or to maintain other operations in the Forest Hill Field was due to the fact that Wade, Scherbach, and Wood County Oil would not invest more funds, rather than because of any breach on his part. He asserts that the only way for him to be responsible for allowing production to lapse is to find that he had a duty under the JOA to consume his own resources to keep the lease alive. He argues that he had no such duty and that he could not afford to contribute more of his personal funds. Thus, he claims the evidence does not support a finding that he failed to act as a reasonable prudent operator or that he acted with gross negligence or willful misconduct.

Analysis

Reeder’s contention that Dekrfour and Nelson owned an overriding royalty is contrary to the language of the unit agreement and the JOA. “Working interest” is defined in the unit agreement as including a carried interest. The unit agreement specifically allows a carried working interest to be created by a JOA. The mutual agreement specifically created a carried working interest for Dekrfour in the Harris Sand Unit.

An oil and gas royalty is a share of the product or profit from real property, reserved by the grantor of a mineral lease in exchange for the lessee’s right to mine or drill on the land. Black’s Law Dictionary 1445 (9th ed.2009). “Royalty” is commonly defined as the landowner’s share of production, free of expenses of production. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121-22 (Tex.1996). The oil and gas working interest is the right to the mineral interest granted by an oil and gas lease, so called because the lessee acquires the right to work on the leased property, search, develop, and produce oil and gas, as well as the obligation to pay all costs. Black’s Law Dictionary at 1745. A “carried interest” in an oil and gas lease is a fractional interest that is free of some or all costs of exploring, drilling, and completing the well. Id. at 885.

The royalty interest is part of the lessor’s interest in an oil and gas lease. A carried working interest is part of the lessee’s interest in an oil and gas lease. Reeder has cited no authority for his proposition that the carried working interest here must be treated the same as an overriding royalty interest. Because the terms of the unit agreement permit, and the mutual agreement specifically created, a carried working interest as part of the working interest in the Harris Sand Unit, Reeder cannot prevail on his argument that he owes no duty to Dekrfour and Nelson because they are actually owners of an overriding royalty interest.

The mutual agreement that was incorporated into the JOA specifically states that the operator “agrees to produce and/or conduct operations on the Harris Sand Unit sufficient to maintain the leases and the unit.” The evidence shows that Reed-er had no production from the Harris Sand Unit from September 2006 forward and that production had begun declining precipitously in the preceding months. Reeder presented no evidence of any actions he undertook or other operations he attempted that would maintain the leases and the unit. David Fry testified that the Fry Interests had been unable to achieve more production in the Sub-Clarksville Unit because of Reeder’s refusal to allow them access to the jointly owned wellbores as required by the JOA. This is some evidence that Reeder did not maintain production in paying quantities or take the necessary actions required to maintain the leases and the unit. By his inaction, Reed-er breached his duty under the explicit terms of the JOA to maintain production and/or conduct operations sufficient to maintain the leases and the unit. Thus, Reeder’s challenge to the legal sufficiency of the evidence to support the jury’s finding to Question No. 8 is without merit. See Cazarez, 937 S.W.2d at 450.

Reeder testified that he maintained production in the Harris Sand Unit as long as he could before he had to spend his money on other pressing business interests that he owned, which caused him to give up on maintaining production in paying quantities in the Harris Sand Unit. Contractual obligations cannot be avoided simply because the obligor’s performance has become more economically burdensome than anticipated. Huffines v. Swor Sand & Gravel Co., 750 S.W.2d 38, 40 (Tex.App.-Fort Worth 1988, no writ). The evidence shows Reeder failed to maintain production in paying quantities, a breach of the JOA by Reeder. Having other pressing financial matters to attend to does not excuse Reeder’s failure to comply with the terms of the JOA. Further, Reed-er never attempted operations in the contract area that would have required Wade or Scherbach to authorize expenditures under the JOA. In fact, in a letter dated June 9, 2006, he admitted to Wade and Scher-bach that he did not have the money to fund the 45% that would have been his share of the operations. Finally, as explained above, the gross negligence and willful misconduct standards are not applicable here, and we need not address Reed-er’s argument regarding them. The jury’s finding that Reeder breached his duty as operator by failing to maintain production in paying quantities in the Forest Hill Field is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Dow Chem. Co., 46 S.W.3d at 242. We overrule Reeder’s issues two through five.

Obligation to Offer Well No. 116 to Other Working Interests Before Abandonment

In issues seven through ten, Reeder contends the evidence is legally and factually insufficient to support the jury’s answer to Question No. 18 that he breached a duty to Dekrfour, Nelson, and Wood County Oil by failing to offer Well No. 116 to them prior to plugging the well. Reeder argues that he did not elect to abandon or plug the well, but was ordered by the Railroad Commission to plug the well. He also asserts that he owed no duty to Wood County Oil because Wood County Oil did not have an interest in Well No. 116 at the time the Railroad Commission ordered it to be plugged. He also argues that, at the time the well was plugged, Wood County Oil had ownership rights in the well and there is no evidence that Reeder had any authority to offer the well back. Finally, he asserts the evidence is legally and factually insufficient to support a finding that his actions amounted to gross negligence or willful misconduct.

In 1998, Reeder became the operator of Well No. 116. From this time forward, there was controversy between Fry and Reeder as to how Well No. 116 should be produced. In 2003, the well began to leak. By its order dated October 21, 2003, the Railroad Commission ordered Reeder as the operator to plug the well. Reeder finally plugged the well on June 9 and 10, 2004.

Reeder did not contest that he was the operator of Well No. 116. Again, this authority devolved upon him by the JOA, which stated in pertinent part:

If Operator deems that a well should be abandoned, it shall notify the non-Operators of such decision and offer his interest in such well to any party willing to accept the well, together with the plugging liability. If no party requests such well, the Operator shall cause the well to be properly plugged and the lease restored and the costs there for shall be a joint expense under this Agreement.

When a well is plugged in Texas, it is considered abandoned. See 16 Tex. Admin. Code § 3.5(d)(2)(C) (2009) (Tex. R.R. Comm’n); see also Ridge Oil Co. v. Guinn Invs. Inc., 148 S.W.3d 143, 147 (Tex.2004). Therefore, by the terms of the JOA, Reeder was required to offer his interest in Well No. 116 to the nonopera-tors before plugging the well. The evidence shows that on June 9, 2004, Dekrf-our and Nelson, collectively, had a 12.5% carried working interest in the Harris Sand Unit and that Wood County Oil had an 87.5% working interest in the Harris Sand Unit. They were nonoperators in Well No. 116. By the terms of the JOA, Reeder had the duty and authority to offer Well No. 116 to the Fry Interests, Wood County Oil, or both before plugging it, but he did not do so. The evidence is legally sufficient to support the jury’s answer to Question No. 18. See Cazarez, 937 S.W.2d at 450.

Reeder contends the above provision of the JOA does not apply here because he did not “deem” that the well should be abandoned, but instead was ordered to plug the well. We disagree. The Railroad Commission initially recommended that he plug the well. At that point, he had the option of repairing the well. When he chose not to repair the well, he chose to abandon the well. His argument that he did not need to offer the well to Wood County Oil because it did not own an interest at the time of the Railroad Commission’s order also fails. The JOA does not limit the offer requirement to a certain time period. The wording indicates that the offer of the well can be made at any time before the well is plugged. The assignment to Wood County Oil was signed on May 24, 2004 but was effective November 24, 2003, one month after the Railroad Commission’s order to plug the well and several months before Reeder actually plugged the well. As operator, Reeder had the authority and the duty under the JOA to offer the well to nonoperators, including Wood County Oil. Finally, as explained above, we need not address Reed-er’s argument that the evidence is legally and factually insufficient to support a finding that his actions amounted to gross negligence or willful misconduct. The evidence is factually sufficient to support the jury’s answer to Question No. 18. See Dow Chem., Co., 46 S.W.3d at 242. We overrule Reeder’s issues seven through ten.

Damages

In his eleventh issue, Reeder complains that Bob Ungerecht’s testimony of valuation was conclusory and speculative and therefore no evidence. In his thirteenth issue, he attacks the jury’s allocation of damages between the Fry Interests and Wood County Oil as being irreconcilably ambiguous. In his fourteenth issue, Reed-er contends that the evidence is not legally and factually sufficient to support the jury’s verdict on damages.

Before a plaintiff can recover damages, he must prove “with reasonable certainty” the damages he suffered from the defendant’s breach, including the value of “a certain quantity of oil, worth a certain amount.... ” See Tex. Pac. Coal & Oil Co. v. Barker, 117 Tex. 418, 427, 6 S.W.2d 1031, 1033 (1928). The value of mineral reserves is not a matter of common knowledge, and therefore it is the plaintiffs burden to prove damages by expert testimony. Arkoma Basin Exploration Co. v. FMF Assoc. 1990-A, Ltd., 249 S.W.3d 380, 388 (Tex.2008). Experienced people who are acquainted with the conditions of the land in the locality of the leased premises can give an opinion as to the amount of recoverable oil in the unit. See Barker, 117 Tex. at 427, 6 S.W.2d at 1034. The plaintiffs expert should, after examining the logs and other relevant information from the field and surrounding wells, give an opinion as to the probability of obtaining production and the extent of such production on the land in question. See County Mgt., Inc. v. Butler, 650 S.W.2d 888, 890 (Tex.App.-Austin 1983, writ dism’d). Such matters as production costs, geological trends, proration, and kind and quality of the oil should also be referred to by the expert in making his opinion. Id.

The nature of the inquiry makes it practically impossible to ascertain with certainty the exact amount of the plaintiffs damage. Barker, 117 Tex. at 427, 6 S.W.2d at 1034. But damages must be established with reasonable certainty, not mathematical precision. O & B Farms, Inc. v. Black, 300 S.W.3d 418, 422 (Tex.App.-Houston [14th Dist.] 2009, pet. filed). If the best available evidence affords a reasonable basis for the jury to calculate damages, then recovery cannot be denied because the exact amount of damages cannot be ascertained. Id. As a general rule, the jury has broad discretion to award damages within the range of evidence presented at trial, so long as a rational basis exists for its calculation. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 760 (Tex.App.-Dallas 2008, no pet.). The jury’s findings will not be disregarded merely because its reasoning in arriving at its figures may be unclear. Id.

Ungerecht, who had been a petroleum engineer for fifty-two years at the time of trial, testified that he used industry standards in preparing his testimony. He explained that he is familiar with the Harris Sand Field and had the information necessary to do a complete and thorough evaluation of the field. He testified that, because of all the drilling and the production from both the Sub-Clarksville Unit and the Harris Sand Unit, there was an abundance of information available including logs, coring samples, maps, geological formation information, production history, well tests, planimeter results, and other documents to show him the amount of recoverable reserves for each of the twelve tracts he testified about. See Butler, 650 S.W.2d at 890. He further testified that he was able to study the production costs for operations such as drilling, installing the surface equipment, and installing tanks. He also was able to determine the operating costs based on the documentation that he had studied. He discounted his evaluation for the decline rate, market value, taxes, royalties, and the carried working interests. He stated that he considered the uncertainty and risk involved in beginning production again from the unit formations. He testified about the gravity of the oil in the Harris Sand Unit compared to the lighter oil in the Sub-Clarksville Unit and how that would affect the value of the recoverable oil. See id.

Reeder characterizes Ungerecht’s testimony as being speculative and conclusory. First, he states that Ungerecht based his valuation on records showing the amount of oil in place in the two units in 1996. He argues that the valuation is thus founded on speculation that the basic reservoir information remained unchanged for nearly twelve years. Ungerecht specifically testified that while the value of the reserves has changed over the years, the change was caused primarily by the price of oil. Therefore, while his earlier evaluations were the basis of his calculations, he upgraded the information as to price. The jury was entitled to infer that Ungerecht, based on his years of experience, considered whether the reservoir information had changed and determined that it had not. See City of Keller, 168 S.W.3d at 821. Further, the jury saw the production records from the intervening years showing very little depletion in the field. We disagree that Ungerecht’s reliance on the 1996 information makes the testimony speculative.

Reeder challenges Ungerecht’s testimony because, while there was no production at the time he testified, Ungerecht based the value of the reserves on the price of oil at the time of trial, instead of the price at the time production ceased. Ungerecht explained that he had to extrapolate production based on the recoverable oil because there were no current figures. This was a logical explanation and one that would help the jury in determining valuation.

Reeder complains that Ungerecht valued the Harris Sand Unit reserves as though the formation was in its primary recovery period when it was in a secondary recovery period. Ungerecht, on direct, testified that he based his valuations on primary production. However, during Reeder’s cross examination, Ungerecht was asked hypothetical questions regarding secondary production on the Harris Sand Unit. Although Ungerecht answered these hypothetical questions, neither his testimony nor any other evidence suggests that his valuation should not be based on primary recovery. Ungerecht’s testimony is not speculative or conclusory. Thus, the evidence is legally sufficient to support the damage awards.

Reeder also attacks the jury’s allocation of damages between the Fry Interests and Wood County Oil. Generally, the jury awarded about one-tenth of Un-gerecht’s valuation to the Fry Interests for their losses in the Harris Sand formation due to Reeder’s actions as operator. This amount was three times the amount awarded to Wood County Oil. Reeder contends that this makes the jury’s answers irreconcilable. We disagree. Ungerecht testified that the extraction costs were very high for the oil produced out of the Harris Sand formation. This testimony was corroborated by both David Fry and Noble. The jury could therefore have rationally concluded that the carried working interests owned by Dekrfour and Nelson were three times as valuable as the working interest of Wood County Oil because of these heavy costs of production. See Christian, 257 S.W.3d at 760.

Reeder challenges the jury’s award of damages to the Fry Interests for their losses in the Sub-Clarksville formation while awarding Wood County Oil zero damages for that formation. The plausible basis for this award is that the jury found the production in paying quantities in the Sub-Clarksville Unit had ceased in 2003. Wood County Oil did not acquire its working interest until 2004. As a result, the jury could rationally have determined that Wood County did not have an interest in the Sub-Clarksville Unit when production in paying quantities ceased. See id.

Based on his experience and the documentation, Ungerecht assigned specific valuations to each of the twelve tracts in the Sub-Clarksville and Harris Sand Units that he was asked to value. See Barker, 117 Tex. at 427, 6 S.W.2d at 1033. The jury’s awards to the Fry Interests and Wood County Oil were much smaller than Ungerecht’s valuations. A jury’s verdict on damages cannot exceed the amount shown by the evidence, but a jury need not award the full amount testified to by the expert when the situation warrants a reduction. See Geo Viking, Inc. v. Tex-Lee Operating Co., 817 S.W.2d 357, 363 (Tex.App.-Texarkana 1991, writ denied). Here, the nature of the asset being valued lends itself to imprecise valuations. The reports showed a wide range of production levels for the field over the years. Ungerecht testified that many variables are not constant, including the price of oil and the costs of production and maintenance. Further, he testified that he considered “certain unknowns” such as an estimate of the availability of each oil well to produce at a certain rate and an estimate of the life of that well to produce. Additionally, Ungerecht testified that he was unable to determine productive capacity because the field was not in full production. Accordingly, the imprecision in the factors Ungerecht relied on for determining valuation of the field warranted the jury’s belief that the awards should be reduced. Thus, the evidence is also factually sufficient to support the damage awards. See Dow Chem. Co., 46 S.W.3d at 242. We overrule Reeder’s issues eleven, thirteen, and fourteen.

Wood County Oil’s Pleadings

In his twelfth issue, Reeder contends that Wood County Oil’s claim for damages is not supported by its pleadings. About a month before trial, Wood County switched sides in the case. Wood County had been aligned with Reeder against the Fry Interests but filed a cross-claim against Reeder alleging that he had caused loss of the unit leases by his actions as unit operator. About a week before trial, Wood County filed its first amended petition continuing its declaratory action on title issues but specifically nonsuiting all of its claims against the Fry Interests. The previously pleaded claim against Reeder is not mentioned in the amended petition.

Assuming Wood County inadvertently nonsuited Reeder in the live pleading by omitting any mention of its claim against Reeder, it is clear from a review of the record that the breach of contract issues between Wood County Oil and Reed-er were tried by consent. Both sides presented evidence against each other on these issues and asserted differing positions on these issues at the charge conference. When both parties present evidence on an issue and the issue is developed during trial without objection, any defects in the pleadings are cured at trial, and the defects are waived. See Tex.R. Civ. P. 67; Ingram v. Deere, 288 S.W.3d 886, 893 (Tex.2009). We hold that any defects in Wood County’s amended pleading were cured when the breach of contract issues were tried by the consent of the parties. We overrule Reeder’s twelfth issue.

Conformity of Final Judgment to Jury’s Awards

In his fifteenth issue, Reeder complains that the trial court’s final judgment does not conform to the actual awards the jury made to the Fry Interests. We agree. The jury made the following specific monetary awards:

Dekrfour and Nelson $299,102.50
Dekrfour, Nelson and Bobby Noble $390,887.00
Dekrfour $ 9,202.00
Nelson $ 36,808.00

However, the trial court’s judgment awarded damages as follows:

Dekrfour $138,719.10
Nelson $561,237.00
Noble $ 36,043.40

The trial court’s duty, and ours, is to ascertain the intention of the jury’s answers and render a judgment in conformity with them. See Tex.R. Civ. P. 301; In re Estate of Bean, 206 S.W.3d 749, 760 (Tex.App.-Texarkana 2006, pet. denied). There is a clear discrepancy between the jury’s awards and the judgment. We sustain Reeder’s fifteenth issue.

Attorney’s Fees

In his sixteenth issue, Reeder contends that the trial court’s award of attorney’s fees was not authorized and was not supported by legally and factually sufficient evidence. Based on the jury’s answers to Question No. 20, the trial court awarded Marcus Carroll, the attorney for the Fry Interests, $125,000.00 in attorney’s fees with prejudgment interest at the rate of 6%. Carroll testified that his reasonable and necessary attorney’s fees for each of the four claims asserted against Reeder totaled $115,250.00 as shown in the table below. The table also shows the amount of attorney’s fees the jury awarded for each of the four claims, which totaled $125,000.00.

Reeder contends that attorney’s fees were not recoverable on the breach of the JOA claims, that is, the failure to offer Well No. 116 to Dekrfour and Nelson before plugging it and the loss of the leases. He argues that the fees awarded were not segregated by claim and contends further that because the fees were based in part on claims for which such fees are not recoverable, the award cannot stand.

The Texas Civil Practice and Remedies Code provides that parties may recover reasonable attorney’s fees if the claim is for an oral or written contract. Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8) (Vernon 2008). As we have shown in issue one, the JOA was a written contract, and Reeder was bound by it. The claim asserted by Dekrfour and Nelson (for the failure to offer the well), and the claim asserted by the Fry Interests (for the loss of the leases), arose under the JOA. Further, attorney’s fees are recoverable pursuant to the Declaratory Judgment Act. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008). Therefore, the Fry Interests can recover their reasonable and necessary attorney’s fees for these claims, and the failure to segregate is not error.

Reeder also contends that there is insufficient evidence to support the award of $125,000.00 in attorney’s fees. We agree with this contention. As the table above shows, Carroll testified that $12,500.00 was a reasonable attorney’s fee for his work on Dekrfour’s and Nelson’s claim that Reeder breached the JOA by failing to offer Well No. 116 to them before plugging it. Despite this testimony, the jury awarded $35,000.00 in attorney’s fees for that claim. The evidence is not factually sufficient to support this portion of the jury’s attorney’s fee award. It is an abuse of discretion for the trial court to award fees without factually sufficient supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

Carroll testified that his attorney’s fees totaled $115,250.00. The jury determined that $27,500.00 was a reasonable fee for Carroll’s work on the breach of the JOA by the loss of the leases, $12,500.00 less than Carroll testified to. The jury also awarded $250.00 less than Carroll testified to earning on the declaratory judgment action. The jury was entitled to award a lesser amount if it so chose. See Geo Viking, Inc., 817 S.W.2d at 363. Therefore, based on Carroll’s testimony and the jury’s award, the trial court should have awarded Carroll $102,500.00 in reasonable attorney’s fees. The evidence is legally and factually sufficient to support an award in this amount. We sustain Reeder’s sixteenth issue in part and overrule it in part.

Prejudgment Interest

In his seventeenth issue, Reeder contends that the trial court miscalculated the prejudgment interest on awards to Dekrf-our, Nelson, Noble, and Wood County Oil. He argues that the trial court erroneously used March 14, 2006, the date the Fry Interests filed their counterclaim, as the starting date for calculating all prejudgment interest. He asserts that prejudgment interest on damages awarded to the Fry Interests under Questions 9 and 10 should be calculated from the date of their amended counterclaim, July 20, 2007, which is the date the claim addressed in those questions was first pleaded. He further asserts that prejudgment interest for Wood County Oil should be calculated from January 10, 2008, when it filed its original cross-claim against Reeder. We agree that prejudgment interest on the damage awards was miscalculated. See Tex. Fin.Code Ann. § 304.104 (Vernon 2006). Further, the prejudgment interest awards are based on the erroneous damage awards and must be recalculated due to our disposition of issue fifteen.

Reeder also contends the trial court erred by awarding prejudgment interest on the award of attorney’s fees. Prejudgment interest is generally not allowed on an award of attorney’s fees. See C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 325 (Tex.1994). We sustain Reeder’s seventeenth issue.

Conclusion

Reeder, as operator, is bound by the 1996 joint operating agreement, and the claims asserted against him here are for breach of contract. When measured against the elements of breach of contract, the evidence is legally and factually sufficient to support the jury’s findings that Reeder breached his duty as operator by failing to maintain production in paying quantities or other operations in the Forest Hill Field and by failing to offer Well No. 116 to the nonoperators before plugging the well. The evidence is also legally and factually sufficient to support the jury’s damage awards. However, the trial court’s judgment does not conform to the jury’s damage awards. Because we have the necessary information before us, we may reform the judgment. See Tex.R.App. P. 43.2(b); Mullins v. Mullins, 202 S.W.3d 869, 878 (Tex.App.-Dallas 2006, pet. denied). Accordingly, we modify the judgment to order the specific damage awards as found by the jury. Because the prejudgment interest on the damage awards was miscalculated, we modify the judgment to reflect the proper amounts of prejudgment interest. Because it is not appropriate in this case, we delete the award of prejudgment interest on attorney’s fees.

We affirm the trial court’s judgment with respect to attorney’s fees in the amount of $102,500.00, conditioned on a remittitur of attorney’s fees in the amount of $22,500.00. See Tex.R.App. P. 46.3; Stukes v. Bachmeyer, 249 S.W.3d 461, 470 (Tex.App.-Eastland 2007, no pet.). If this remittitur is not filed within fifteen days from the date of this opinion, the trial court’s judgment as to attorney’s fees will be reversed and the cause will be remanded to the district court for a new trial. See Tex.R.App. P. 46.3.

We affirm the trial court’s judgment, as modified.

      . The existing wellbores could be used to produce from either unit, but only from one unit at a time.

      . Noble was aligned with Dekrfour and Nelson throughout the trial, and we will include him with them when we refer to the Fry Interests in this opinion.

      . Documents in the record show that Dekrf-our owned the working interest transferred to Secondary. Fry owned Dekrfour and signed various documents as president of Dekrfour.

      . Nothing in this opinion should be construed as requiring an operator to conduct an operation when the nonoperating leasehold working interest owners elect not to participate in, i.e., pay for, that operation.

      . Reeder has not challenged, and therefore we do not address, the jury's award to Patricia Fry for Reeder's failure to file a P-4 with the Texas Railroad Commission or the court's declaratory judgment to determine title.


source: Caselaw Access Project

author: Justice MURPHY.

license: Public Domain

text:
    Timothy L. BARTON, Individually and d/b/a JMJ International, JMJ Development, Inc., and JMJ Biltmore, LLC, Appellants/Cross-Appellees, v. SCLAFANI INVESTMENTS, INC., Appellee/Cross-Appellant.
    No. 05-08-00790-CV.
    Court of Appeals of Texas, Dallas.
    July 28, 2010.
    Rehearing Overruled Sept. 22, 2010.

      Mitchell Madden, Thomas Y. Murto, III, Madden Sewell, LLP, Dallas, TX, for Appellants/Cross-Appellees.
    Timothy D. Zeiger, Shackelford, Melton & McKinley, Robert F. Kemp, Dallas, TX, for Appellee/Cross-Appellant.
    Before Justices MARTIN RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By

Justice MURPHY.

This appeal presents questions regarding the validity of a contract for real estate brokerage commissions under Tennessee law. Timothy L. Barton, individually and d/b/a JMJ International, JMJ Development, Inc., and JMJ Biltmore, LLC (collectively, the JMJ entities) appeal the judgment rendered on a jury’s verdict in favor of Sclafani Investments, Inc. for commissions claimed under a contract for purchase and sale of property known as the “Biltmore PUD” located near Nashville, Tennessee. We conclude the contract to pay Sclafani Investments a brokerage commission was not supported by legal consideration, and the trial court therefore erred in failing to grant appellants’ motion for judgment notwithstanding the verdict. We reverse the trial court’s judgment and render judgment that Sclafani Investments take nothing on its claims.

BACKGROUND

Sclafani Investments is a real estate brokerage corporation, licensed in Texas. Its president and principal broker is Salvatore Sclafani, who is also licensed in Texas. According to Salvatore, a broker’s job is “to identify and be a procuring cause of the sale.” Barton is a real estate developer and Texas-licensed real estate agent. As a real estate developer, Barton finds property to be developed, evaluates the potential risks and rewards for developing that property, locates investors for the property, coordinates financing, and then executes the actual development of the property. JMJ Development, Inc. is one of Barton’s property development companies. JMJ International and JMJ Bilt-more, LLC are entities Barton either established or planned to establish.

Barton’s Relationship with Salvatore Sclafani

Barton and Salvatore have known each other for many years. In early 2004, Barton invited Salvatore to share office space with him. The arrangement was not exclusive and did not preclude Salvatore from developing or maintaining other broker business while using Barton’s office space rent free. In addition to sharing office space, Barton and Salvatore had an agent-broker relationship arising out of the Texas law, which requires a real estate agent to be sponsored by a Texas real estate broker. Barton affiliated his real estate agent’s license with Sclafani Investments’s broker’s license.

The Nashville Deal

The property at issue in the lawsuit is a 2000 square-acre of land located near Nashville, Tennessee. The property, referred to by the parties as the “Biltmore PUD,” was owned by Cecil D. Branstet-ter and the Branstetter Family Partners. The Branstetters were represented by Southeast Venture, LLC, a real estate services company.

In January 2004, Edward Brooks, a Tennessee-licensed commercial real estate broker with Crye-Leike Realty, contacted Barton about the Biltmore PUD. Brooks met with Barton at a coffee shop in Texas, where Brooks gave Barton information about the property, including a map and outline of the location, total acreage, and existing permits. Barton described the property as “a big piece of land on a major intersection in a growing market.” Barton thought the opportunity “sound[ed] like a good deal.” On January 25, 2004, Barton signed a “Buyer Registration” agreement with Brooks, in which Barton acknowledged Crye-Leike and Brooks as his “Broker of Record.”

In March 2004, Barton had a second meeting with Brooks concerning the Bilt-more PUD; Salvatore attended this meeting. At the meeting, Brooks presented Barton and Salvatore with a package related to the Biltmore PUD. The package consisted of a large roll of drawings that showed the topography of the land, as well as the dimensions of the property and a layout of a prior PUD. Following the meeting, Barton directed Salvatore to draft a letter of intent to show Barton’s interest in purchasing the property. On March 15, 2004, Salvatore sent the letter of intent to the Branstetter family. The letter of intent referenced a proposed six-percent commission split among the seller’s and buyer’s brokers, including Sclafani Investments. Barton proposed the seller pay the total commission. At that time, neither Salvatore nor Sclafani Investments had an agreement with Barton to receive a commission for brokerage services related to the property.

The May 2004 Purchase & Sale Agreement

Thereafter, a contract for the purchase and sale of the Biltmore PUD was negotiated and signed. Signatories were Cecil Branstetter, individually and on behalf of the seller; Barton, on behalf of JMJ International, the buyer; Salvatore, on behalf of Sclafani Investments; and Brooks as representative of Crye-Leike. The effective date of the Purchase and Sale Agreement was May 21, 2004 (the Agreement).

Paragraph 14 of the Agreement called for a seven-percent commission split among the seller’s and buyer’s brokers and provided:

At closing Seller shall pay a brokerage commission equal to six percent (6%) of the Purchase Price, Buyer shall pay a brokerage commission equal to one percent (1%) of the Purchase Price for a total of seven percent (7%) commission which shall be divided as follows: two percent (2%) to Crye-Leike Realty or other broker of record having Ed Brooks representing Buyer; two percent (2%) to Sclafani Investments, Inc. having Sal Sclafani also representing Buyer; and three percent (3%) to Southeast Venture, LLC representing Seller. In the event this sale fails to close for any reason, no commission shall be paid or owed.

The Agreement also prescribed Tennessee law.

Salvatore’s Due Diligence

After the Agreement was signed, Salvatore prepared a feasibility study so Barton could evaluate the purchase. For the study, Salvatore conducted due diligence in Tennessee, where he met with the author of the PUD, reviewed twenty-five years’ worth of research from city records, and' visited with the utility companies, water and taxation authorities, planning department, and prospective purchasers for development of portions of the tract. Salvatore also performed work on the project in Dallas, where he “set up and arranged meetings for bond financing so that the funds could be made available for development of the infrastructure.... ” He worked with Barton’s finance manager to prepare a promotional brochure. One component was preparation of a financial plan to attract investors. According to Salvatore, he performed the feasibility study and other due diligence as Chief Operating Officer (COO) of JMJ Development, rather than as broker.

Events Leading Up to the Lawsuit

In late 2004, Salvatore’s relationship with Barton soured. According to Salvatore, Barton stopped communicating with him for a period of six to eight weeks. Based on the lack of communication, Salvatore eventually left the office he shared with Barton and performed no additional work on the Biltmore PUD. In January 2005, Barton changed his agent affiliation from Sclafani Investments to Mark Adams, another Texas-licensed broker.

In March 2005, Barton sent Salvatore a letter informing Salvatore he was removing Sclafani Investments from the Agreement as a payee of any commission. Barton explained: “JMJ arranged for you to participate in the commission on the transaction ... based on your representations as to your development experience” and with the expectation that “you would perform due diligence work that would be needed on the property.” Barton acknowledged that providing Salvatore “with a portion of the commission was a way to compensate [Salvatore] for this work.” Barton expressed that Salvatore “did not perform the needed tasks as necessary,” and after many delays during the due diligence phase, he “had to bring in additional staff to handle the project.” Barton stated that these and other circumstances “led [him] to remove [Salvatore] from the project....” In response, Salvatore defended his due diligence work and maintained his input and recommendation influenced Barton to move forward with an offer to purchase the Biltmore PUD. Salvatore further asserted he was “the procuring cause of this venture” and wrote that he expected to be paid his commission at closing as outlined in the Agreement.

Shortly thereafter, on April 13, 2005, the Agreement was amended. This was the second amendment; the first amendment, in November 2004, extended the time frame in which Barton paid his fourth earnest money deposit. Pursuant to the second amendment, JMJ International assigned its interest to JMJ Biltmore, LLC, and JMJ Biltmore assumed JMJ International’s obligations under the Agreement. In addition, the Branstetter family accepted a $7,000,000 promissory note secured by the first deed of trust encumbering the property as a part of the purchase price. The commission paragraph was also modified by substituting Adams as the buyer’s representative instead of Sclafani Investments. Under the modified commission paragraph, Adams was to receive the two-percent commission for representing the buyer. Salvatore was notified of the amendment and did not agree to the change in the commission paragraph.

The purchase and sale closed on May 25, 2005. Nashville Biltmore acquired the property for $9,500,000. As result of the second amendment, Adams received $190,000, the two-percent broker’s commission. At Barton’s direction, a portion of that commission-$165,000-was paid to JMJ Development; Adams kept the remainder.

The Lawsuit

Just weeks after the second amendment was signed, Sclafani Investments filed suit on April 27, 2005 against Barton, individually and d/b/a JMJ International; Cecil Branstetter, individually and d/b/a Bran-stetter Family Partnership; Crye-Leike; and Southeast Venture, alleging claims for breach of the Agreement and quantum meruit. Sclafani Investments also sought declaratory relief, asking the court to determine and declare Sclafani Investments’s entitlement to the $190,000 commission. In its amended pleadings, Sclafani Investments dropped its claims against the Bran-stetter s and Southeast Ventures, and added claims against JMJ Development, JMJ Biltmore, and Adams. Sclafani Investments settled its claims with Crye-Leike and Adams before trial.

In its fourth amended petition, which was the live pleading at the time of trial, Sclafani Investments alleged causes of action against Barton and the JMJ entities for breach of the Agreement, breach of an employment contract, fraud, civil conspiracy, money had and received, an accounting, constructive trust, and quantum meru-it. It also sought declaratory relief and attorneys’ fees. The trial court granted summary judgment against Sclafani Investments on its constructive trust, civil conspiracy, and accounting claims.

Barton, individually and d/b/a JMJ Development, asserted counterclaims against Sclafani Investments for breach of contract, negligent misrepresentation, and tortious interference with a contract. Barton also alleged third-party claims against Sclafani Investments, Salvatore, and Robert Kemp, Sclafani Investments’s trial counsel, for invasion of privacy, negligence, negligence per se, aiding and abetting, and conspiracy. Barton also sought attorneys’ fees. Barton’s claims against the third-party defendants related to the use of Barton’s personal information at his deposition in this case. The trial court struck the third-party claims without prejudice pursuant to an agreed order. The trial court also directed a verdict against Barton and JMJ Development on their counterclaims.

The case was tried to a jury for four days. After Sclafani Investments rested, Barton and the JMJ entities moved for a directed verdict on all claims against them. The trial court directed a verdict against Sclafani Investments on its claims for breach of an employment contract, fraud, and quantum meruit. The trial court also directed a verdict on Sclafani Investments’s claim for money had and received against Barton and JMJ Biltmore, denying the motion for directed verdict as to JMJ Development. The remainder of the case was submitted to the jury, which returned a verdict in favor of Sclafani Investments on its claims for breach of the Agreement, money had and received (against JMJ Development), and attorneys’ fees. Specifically, the jury found (1) Barton’s agreement for Sclafani Investments to receive a commission as set forth in paragraph 14 of the Agreement was supported by sufficient consideration; (2) Barton’s and JMJ Bilt-more’s failure to comply with the commission provision was not excused; (3) Sclafa-ni Investments’s failure to comply with the Agreement was excused; (4) Sclafani Investments’s damages resulting from Barton’s or JMJ Biltmore’s failure to comply with the Agreement were $190,000; and (5) the money received by JMJ Development from Adams out of money Adams received from the Biltmore PUD closing belonged in equity and good conscience to Sclafani Investments.

Thereafter, Sclafani Investments filed a motion for judgment, and Barton and the JMJ entities filed a motion for judgment notwithstanding the verdict. Barton and the JMJ entities argued, among other things, they were entitled to a take-nothing judgment because there was no evidence Sclafani Investments provided consideration to support the broker’s fee provision in the purchase and sale Agreement. The trial court granted Sclafani Investments’s motion and rendered judgment on the jury’s verdict, awarding breach of contract damages of $305,481.75, including pre-judgment interest and attorneys’ fees, against Barton and JMJ Biltmore, jointly and severally, plus $172,027.89 for the money had and received claim against JMJ Development. The trial court also ordered that Barton, JMJ Biltmore, and JMJ Development each receive dollar-for-dollar credits for payments made by any other defendant or Adams as a settling person. Both parties appealed.

Barton and the JMJ entities raise nine issues on appeal. In issue four, they claim Sclafani Investments’s commission agreement is unenforceable as a matter of law because it was not supported by sufficient consideration, and the trial court therefore erred in denying their motions for directed verdict and JNOV. Our resolution of this issue is dispositive.

Evidence of Brokerage Services

Over the course of the four-day trial, the jury heard testimony from Salvatore, Ed Brooks, and Barton concerning the Bilt-more PUD project and the brokerage services provided by Salvatore that form the basis of the claim for a two-percent commission. Because our review of the issue related to Sclafani Investments’s claim for breach of the Agreement requires that we consider the entire record, we recount specific testimony and evidence significant to our analysis. We begin with testimony from Salvatore.

Testimony of Salvatore Sclafani

Salvatore testified he had known Barton for a number of years and they had a business relationship. He explained that as part of sharing office space with Barton, he would look out for developments or deals that would interest Barton. Salvatore further testified he had a “handshake deal” with Barton in which he would serve as COO of Barton’s various business entities. As compensation, he would “participate in 10 percent of the profit” realized from “deals done by [JMJ Development]” in which Salvatore “provided the administrative functions.” Salvatore described the COO position as an “administrative role,” in which he “could represent [Barton’s] company while [Barton] traveled to get additional business.” Salvatore and Barton had no other agreement regarding compensation paid to Salvatore.

The March 2004 meeting he attended with Barton was the first time he met Brooks and learned about the Biltmore PUD project. Before that meeting, Salvatore had never discussed with Barton the possibility of looking at property in Nashville. This meeting was also the first time Salvatore learned Brooks had already presented the property to Barton. Salvatore testified that Barton’s initial reaction was that the property “was not worthy of pursuing.” Salvatore explained to Barton that he had experience in Nashville. After he discussed the property with Barton, Barton asked him to draft a letter of intent to purchase the property. Salvatore testified his recommendation to Barton that the deal was worth pursuing was gratuitous in connection with his ongoing relationship with Barton, stating “I didn’t invoice him for my knowledge.”

Salvatore testified he drafted the letter of intent using terms dictated by Barton and sent the letter to the Branstetter family upon Barton’s approval. Salvatore explained that both drafting and sending the letter of intent were brokerage services he provided to Barton. Salvatore agreed, however, that at the time he drafted the letter of intent, he had no agreement with Barton regarding the payment of a commission for any brokerage services. He described the negotiations leading to the Agreement as “normal activity,” consisting of telephone calls between the seller and buyer. Salvatore discussed with Barton what should be included in the Agreement, but he did not negotiate the terms. He testified Barton did his own negotiations, stating “[b]rokers don’t negotiate the terms of the contract. They facilitate.” Salvatore did not draft the Agreement.

Salvatore testified that after the Agreement was signed, he was through with his “broker hat.” He explained that the services he performed on the project at that point were part of the “handshake deal” he had with Barton to participate in ten percent of the profit. Those services were performed in his capacity as COO. Salvatore clarified that nothing he did after the Agreement was signed constituted brokerage activities nor was he “required to provide any more brokerage services ....” As part of his COO duties, Salvatore prepared a feasibility study and traveled to Tennessee to conduct due diligence. He also set up and arranged meetings related to bond financing and prepared a brochure to promote the development to prospective purchasers. The promotional brochure included a market analysis, as well as a financial analysis. During the due diligence phase, Salvatore stayed informed as to what type of work was being done on the project, including ongoing communications with various groups involved in developing the infrastructure. He also assisted Brooks and was involved in communications related to potential purchasers.

Salvatore testified that “[bjringing a piece of property to Mr. Barton’s attention is a brokerage activity” and that he, not Brooks, procured the Biltmore PUD opportunity for Barton. In fact, he claimed his brokerage fee was based upon the fact that he procured this opportunity for Barton. Salvatore further testified that the brokerage services that entitle him to receive a two-percent commission were (1) “providing] input to [Barton] that influenced [Barton] to move forward”; (2) “recommending] that [Barton] ... consider this property,” which was “[b]ased on [Salvatore’s] knowledge of the area”; and (3) drafting and sending the letter of intent. Salvatore could not recall anything else he did leading up to the execution of the May 2004 Agreement and agreed that by the time he signed the Agreement, he “had provided all the brokerage services [he was] going to provide.” Although Salvatore added at one point in his testimony that after the Agreement was signed, he conferred with Barton on a “daily basis” and this “constant conversation with Mr. Barton concerning this transaction and further acquisition were brokerage services,” he testified he could not recall a specific brokerage service he performed leading up to the first amendment in November 2004. When asked what he did to negotiate or procure the May 2005 contract closing the deal, Salvatore repeated that he “wrote the letter of intent and signed the [Agreement] a year earlier.”

With regard to amending purchase and sale agreements, Salvatore testified that negotiating amendments is a brokerage activity. Yet here, he testified that although he was notified of the first amendment to the Agreement, he was not involved in the negotiations. Nor did he draft the amendment.

As to the commission provision in the Agreement, Salvatore testified it “compensated [him] for [his] brokerage [services]”; the “10 percent compensated [his] company for the due diligence.” He also testified that when he signed the Agreement and agreed to the broker commission, he was not giving up his rights under the handshake deal to receive ten percent of the profit. He testified that he “would defer to Mr. Barton” to explain why Barton provided for Sclafani Investments to receive the brokerage commission.

Salvatore’s Affidavit

Earlier in the lawsuit, Salvatore had signed an affidavit dated August 17, 2006, which was also admitted into evidence. In paragraph 6 of the affidavit, Salvatore stated:

Based upon the information and my review of the data provided to BARTON and me at the [Spring 2004] meeting [with Brooks] as well as my familiarity of the locale of [the] subject tract, I recommended to BARTON that he consider making an offer for the property and he concurred. After BARTON and I met with Brooks, I, personally, drafted the letter of intent for BARTON/JMJ’s attorney and their attorney’s approval.

He also explained his familiarity with Tennessee real estate law, which “prohibits a real estate broker who is licensed in one state but not licensed in Tennessee from receiving a commission, if the broker conducts any of the negotiations in Tennessee for which the broker expects a commission.” Based on this statute, Salvatore stated he was “very careful” not to conduct any brokerage activities or perform any brokerage services in Tennessee.

Salvatore’s affidavit confirmed he did not go to Nashville until after the Agreement was signed. When he went to Nashville, he conducted a due diligence investigation in his capacity as COO of JMJ Development. He stated that at the time he went to Tennessee, “all the activities of a real estate broker had been completed: the purchase price, escrow and payment terms had been negotiated and the contract of sale had been fully executed by all of the parties to it.”

Salvatore also attested in the affidavit that he “devoted a considerable amount of [his] time, effort, energy, and professional experience” to assist in the purchase of the Biltmore PUD. He stated that in lieu of a salary for his time and expenses, he “agreed to accept the real estate commission” if the deal closed. He claimed in the affidavit that Barton and JMJ Development “knew or should have known that the services [he] rendered as a real estate broker were for payment of the commission” and it is the “standard method to pay a broker a commission for assisting in putting together this sort of transaction.”

Testimony of Ed Brooks

Brooks was first introduced to the Bilt-more PUD through discussions he had with Axon West, the listing broker for the property. Brooks testified he knew Barton through business acquaintances, and following a “chance meeting” with Barton, he called Barton about the Biltmore property and set up a meeting. Brooks met with Barton and Salvatore in Dallas, where he presented a package of information. They discussed the opportunity that existed at the Biltmore PUD and went through drawings. Salvatore indicated he had experience in the Nashville area and thought he knew about previous attempts to develop the property. According to Brooks, Barton and Salvatore “thought it was an interesting project” and that at that meeting, Barton “immediately wanted to write a letter of intent without any further ado,” adding “it was shocking.”

Brooks testified he interfaced with Salvatore to facilitate the letter of intent and thought Salvatore was doing some administrative work in furtherance of the letter. Based on his dealings with JMJ Development, it did not appear to Brooks that Salvatore was an officer in the company. Brooks explained that although the letter of intent referenced a six-percent commission split, Barton agreed to “throw [in] another point.” He assumed he would be sharing commissions with Salvatore, but he was never clear on whether Salvatore was being compensated as a co-broker on the deal or as COO of Barton’s company.

After the Agreement was signed, there was a “flurry of activity” related to helping Barton perform the due diligence. During this time, Brooks worked on assignments from Barton and provided information to Barton and Salvatore. Brooks said it was “protocol” to copy Salvatore on communications related to the Biltmore PUD, describing Salvatore’s role as “catching papers.” Salvatore came to Nashville and they worked together on the due diligence.

Brooks testified that in late October 2004, “there was beginning to be tension” between Barton and Salvatore. He stated “there was friction. There were problems. There were delays.” He described the seller’s broker as “very upset” because the transaction was not going as well as it should have. Pursuant to the second amendment to the Agreement, Sclafani Investments was replaced by Adams. Brooks further testified that he never met Adams and Adams did nothing on this deal.

Testimony of Timothy Barton

Barton testified that from time to time, he allowed brokers to use his office space rent free. He explained he did this because the brokers using his office space could bring him a deal or something else of interest. Barton testified it was Brooks who brought him the Biltmore PUD opportunity and presented the Biltmore PUD package at the March 2004 meeting. After seeing the entire presentation, Barton “was ready to sign it up.” Although Salvatore attended the meeting with Barton, Barton had not talked with Salvatore about the project prior to the meeting.

Barton testified that Salvatore volunteered that he was in Tennessee ten years ago and that Salvatore had information about a Tennessee deal he worked on. The information was in storage. Because Barton had “known Sal a while,” he asked Salvatore questions about what happened with his Tennessee deal. He also told Salvatore not to bother getting the information out of storage and that they had “everything we need to know right here.” Barton testified he did not rely on Salvatore’s recommendations in deciding to make an offer on the property.

Barton asked Salvatore to prepare the letter of intent. He testified Salvatore did not give him any advice or counsel as to the purchase price or material terms reflected in the letter of intent. It was drafted from Barton’s computer form, and Barton instructed Salvatore as to what numbers to insert. Barton testified that aside from preparing the letter of intent, Salvatore did “[n]othing” to contribute to Barton’s decision to sign the Agreement. Barton testified that before the Agreement was signed, he had no agreement with Salvatore regarding “whatever he did leading up to the contract on the Nashville property.”

Barton agreed brokers are not required to perform due diligence to receive a broker’s commission. He also agreed that the Agreement does not require Salvatore to do anything to close the deal once the Agreement was signed. Barton testified he put Sclafani Investments in the commission provision of the Agreement as “a way to compensate Sal for doing that due diligence work.” He explained “there is a certain amount of work that has to be done, and we were trying to be prudent. And if we were able to have that due diligence work done and have it paid through the brokerage fee, that’s going to ... save us some money.” Compensating Salvatore “for his due diligence work and the work to prepare and get everything ready so that [Barton and JMJ Development] could purchase the property,” was the reason Barton agreed to contribute an additional one-percent commission. Under the terms of the Agreement, the sellers would pay six percent of the brokers’ commission. Barton’s company contributed an extra one percent and added Sclafani Investments “so we could take 1 percent away from those other brokers and use that money.” When he put together the Agreement, he did not anticipate paying anyone else for the work that Salvatore was going to do or relying on Brooks for the due diligence work. If he had, he would not have agreed to pay Salvatore the additional one-percent commission.

Barton testified Salvatore went to Nashville and performed due diligence. “There was an accumulation of information that was put together, and Sal was involved in putting that together.” One component in particular was the financial plan. Barton testified Salvatore’s financial plan showed they were not going to make any money; “it was not a viable deal.” Barton called Salvatore’s work “[tjotally useless,” explaining that it “didn’t help at all. In fact, it hurt us.”

Barton substituted Adams as the broker in the Agreement. He brought in Adams to perform due diligence and to prepare a financial analysis. He said Adams helped put together a “concise package” for investors to show a viable development plan.

Barton testified that “without [Adams’s] work, [he] would have never closed.”

DISCUSSION

In their fourth issue, Barton and the JMJ entities maintain they are entitled to a take-nothing judgment as a matter of law on Sclafani Investments’s claim for breach of the Agreement. Specifically, they complain the trial court erred in denying their motion for directed verdict or JNOV because the conduct that Sclafani Investments maintains was consideration for the two-percent commission fee — recommending that Barton purchase the property and preparing the letter of intent — occurred before the parties signed the Agreement. Because prior acts are not consideration for a current promise under Tennessee law, Barton and the JMJ entities argue there is no evidence of consideration by Sclafani Investments that would support the broker’s fee.

Standard of Review

We review challenges to a trial court’s rulings on motions for directed verdict and JNOV under the same legal-sufficiency test applied to appellate no-evidence challenges. City of Keller v. Wilson, 168 S.W.3d 802, 822-23, 827 (Tex.2005); Mauricio v. Castro, 287 S.W.3d 476, 478-79 (Tex.App.-Dallas 2009, no pet.). In our legal sufficiency review, we consider the evidence in the light most favorable to the fact finding and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. We credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. at 827. If there is more than a scintilla of probative evidence supporting the finding, the legal sufficiency challenge fails. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994). In contrast, evidence that is “so weak as to do no more than create a mere surmise or suspicion of its existence” is no more than a scintilla, and thus, no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

A directed verdict for a defendant may be proper when (1) a plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right to recover, or (2) the plaintiff admits or the evidence conclusively establishes a defense to the plaintiffs cause of action. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). Similarly, a judgment notwithstanding the verdict is proper when (1)the evidence is conclusive and one party is entitled to judgment as a matter of law, or (2) a legal principle precludes recovery. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003); John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.Houston [1st Dist.] 1992, writ denied).

Applicable Law

In reviewing the substantive contract law relevant to this issue, we apply Tennessee law, because it is the law governing the Agreement. Under Tennessee law, a valid, enforceable contract exists if it (1) results from a meeting of the minds of the parties in mutual assent to the terms; (2) is based upon sufficient consideration; (3) is free from fraud or undue influence; (4) is not against public policy; and (5) is sufficiently definite to be enforced. Staubach Retail Servs.-Se., LLC v. H.G. Hill Realty Co., 160 S.W.3d 521, 524 (Tenn.2005); Doe v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn.2001). “Consideration exists when a party does something that he or she is under no legal obligation to do or refrains from doing something which he or she has a legal right to do.” Bratton v. Bratton, 136 S.W.3d 595, 602 (Tenn.2004) (citing Brown Oil Co. v. Johnson, 689 S.W.2d 149, 151 (Tenn.1985)). Consideration is a bargained-for exchange that either confers a benefit upon the promisor or causes a detriment to or an obligation upon the prom-issee. Id.; see also Restatement (Second) of Contracts § 71(1981). Consideration is a required element to prevent the enforcement of gratuitous promises. Guesthouse Int'l, LLC v. Shoney’s N. Am. Corp., No. M2008-02567-COA-R3-CV, 2010 WL 987119, at *18 (Tenn.Ct.App. Mar. 18, 2010). Past consideration — actions already taken before a promise is made — is insufficient to support a present or subsequent contract. Bratton, 136 S.W.3d at 604 (citing Gilman v. Kibler, 24 Tenn. (5 Hum.) 19, 1844 WL 1859, at *3 (1844)).

In Tennessee, “[a]ll contracts in writing signed by the party to be bound ... are prima facie evidence of a consideration.” Tenn.Code Ann. § 47-50-103 (2010). The party asserting a lack of consideration bears the burden of overcoming this presumption. Pyburn v. Bill Heard Chevrolet, 63 S.W.3d 351, 358 (Tenn.Ct.App.2001).

Analysis

Barton and the JMJ entities contend they are entitled to a take-nothing judgment as a matter of law because the evidence established the consideration provided by Sclafani Investments was provided before a promise to pay the commission was made. As such, it was past consideration, which cannot support a current promise. We agree.

Selafani Investments’s claim for a two-percent commission on the Biltmore deal comes from paragraph 14 of the Agreement. Paragraph 14 contains no promise by Salvatore to perform certain services; nor does it outline the basic bargain among the parties. It simply contains promises by the seller to pay a brokerage commission equal to six percent and by the buyer to pay a brokerage commission equal to one percent, divided among the various brokers. If the deal does not close, no commission is owed.

The record before us reveals that the services Salvatore provided were separated into two categories: those he provided in his capacity as real estate broker and those he provided in his capacity as COO of Barton’s company. This division of Salvatore’s services comports not only with the breach of contract theories upon which Selafani Investments sued — breach of a brokerage contract and breach of an employment contract — but also with the nuance in Tennessee law, which Salvatore explained prohibited him as an out-of-state broker from receiving a commission if he conducted negotiations in Tennessee for which he expected to receive a commission. See Tenn.Code Ann. § 62-13-302. Because of that nuance, Salvatore asserted he was “very careful not to conduct any activities, do any acts, or perform any services for which [he] expected to receive a commission as a real estate broker in Tennessee.” And when he went to Tennessee, which was “[a]fter the contract was signed,” he did so in his capacity as COO of Barton’s company to conduct due diligence on the property. Salvatore testified unequivocally that at the point in time he went to Tennessee, “all the activities of a real estate broker had been completed.”

For his brokerage services, Salvatore testified he (1) attended a meeting with Barton and provided input, which he says influenced Barton to move forward with an offer to purchase; (2) recommended to Barton that the property was worth pursuing and that Barton should consider the property; and (3) drafted and sent the letter of intent. These services were provided before Barton promised to pay a commission; Salvatore testified he had no agreement to receive a commission at the time he drafted the letter of intent. The promise to pay a commission occurred on May 21, 2004 when the parties signed the Agreement. As Salvatore testified, at the time he signed the Agreement, he “had provided all the brokerage services [he was] going to provide.” Indeed, he emphasized that at such time, he was through with his “broker hat” and was “not required to provide any more brokerage services.”

In his testimony regarding brokerage services, he also generally identified working on amendments to a contract and “constant conversation” with Barton as post-Agreement brokerage services. He admitted, however, that although he was notified of the first amendment to the agreement, he did not negotiate or draft the amendment. As well, he could not recall a specific brokerage service he performed leading up to the first amendment in November 2004. Rather, Salvatore consistently testified and attested to the fact that after the Agreement was signed, he performed services only in his capacity as COO.

Selafani Investments relies on Salvatore’s affidavit to suggest legally sufficient evidence exists to support the jury’s finding that the commission agreement was supported by consideration. Salvatore states in his affidavit that before the Agreement was signed he (1) recommended Barton make an offer on the Bilt-more PUD, and (2) drafted the letter of intent. He states that there were a “few weeks of negotiations” before Barton’s attorney finally presented an acceptable draft agreement, but he does not specify his participation or how he was otherwise involved in the negotiations. What Salvatore does say is that he did not perform any negotiations in Tennessee and that he was “very careful” not to do so because such conduct would have been prohibited under a Tennessee statute.

Salvatore also asserts in his affidavit that his “commission is an obligation that is typically paid by the Seller” and that Barton “knew or should have known” that the services he rendered “as a real estate broker” were for payment of the commission. Importantly, Salvatore never asserts in his affidavit that he and Barton agreed to a commission before he made his recommendation and drafted the letter of intent. Instead, he states he “discussed” his commission with Barton “both before and after the contract was signed.” These statements do not contradict and are consistent with his trial testimony that he had no agreement to receive a commission before the services were rendered.

Tellingly, Sclafani Investments argues only that the affidavit presents evidence of sufficient consideration. It never responds to Barton and the JMJ entities’ arguments that the consideration provided was past consideration and legally insufficient to support the subsequent promise to pay a commission. While Salvatore attested in his affidavit to the “considerable amount” of “time, effort, energy, and professional experience” he devoted to the Biltmore PUD transaction “both as real estate broker and as the Chief Operating Officer” and that “[i]nstead of receiving a salary for [his] time and expenses on the project, [he] agreed to accept the real estate commission,” these statements do not identify how the services were divided. Further, the statements are not supported by any evidence that would show effort devoted to the broker services beyond that identified in his trial testimony. In fact, Salvatore testified that he “didn’t invoice [Barton] for [his] knowledge”; his recommendation that the property was worth pursuing was gratuitous in connection with his ongoing relationship with Barton. Sclafani Investments points to no evidence that Salvatore’s contribution of “time, effort, energy, and professional experience” as broker occurred after the Agreement was signed. Rather, the evidence establishes his brokerage “hat” was removed by that time; the services to which he testified were provided solely in his capacity as COO of JMJ Development.

Sclafani Investments further argues that Barton and the JMJ entities’ trial theory was that there was a “gentlemen’s agreement” between Salvatore and Barton that unless Salvatore performed the due diligence work to Barton’s satisfaction, Sclafa-ni Investments would not receive the commission as provided in the Agreement. Sclafani Investments maintains there was no such “side agreement” and that Salvatore was the “procuring cause” of the transaction with “extensive involvement” in the deal. This argument, however, is also contrary to the evidence. When asked why Barton would provide for Scla-fani Investments to receive a brokerage commission, Salvatore testified that he would “defer” to Barton’s explanation. Barton explained in his testimony that he added Sclafani Investments to the commission provision and agreed to include an additional one-percent commission to compensate Salvatore “for his due diligence work and the work to prepare and get everything ready so [they] could purchase the property.”

Sclafani Investments finally argues that “the main consideration for the commission agreement is the broker procuring the sales contract, and logically the same document can both contain and perform the agreement.” But when asked what he did to procure or close the sale, Salvatore responded he “wrote the letter of intent and signed the [Agreement] a year earlier.” Salvatore clearly testified that before he performed these services, he was under no contractual duty to do so. Even if a contract for the sale of property may also evidence an agreement to pay brokerage services, the agreement to pay a commission must still be based on sufficient consideration. Here, there is no evidence that Sclafani Investments had an agreement to receive a brokerage commission before Salvatore performed any of the services it claims Salvatore provided as consideration for the commission. Sclafani Investments does not offer, and we do not see, any evidence of brokerage services rendered after the signing of the promise to pay a commission.

We conclude the consideration provided by Sclafani Investments was past consideration. Therefore, the promise to pay a broker’s commission to Sclafani Investments under the purchase and sale agreement is nothing more than a subsequent promise to pay for services already rendered. Under Tennessee law, performance that is completed before a promise is made will not support a current promise. Bratton, 136 S.W.3d at 604; see also S.M. Williamson & Co. v. Ragsdale, 170 Tenn. 439, 95 S.W.2d 922, 924 (1936); Gilman, 24 Tenn. (5 Hum.) 19, 1844 WL 1859, at *3; see also Fleming v. Campbell, 537 S.W.2d 118, 120 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.) (past consideration imposes no legal obligation to support subsequent promise). The jury in this case was not instructed on the definition of or law governing past consideration in the question asking if the Agreement was supported by sufficient consideration.

Because the only consideration provided by Sclafani Investments to support the promise to pay a commission was past consideration, we conclude there is legally insufficient evidence to support the jury’s answer that the Agreement was supported by sufficient consideration. In the absence of valid consideration, Sclafani Investments has no claim for breach of the Agreement. Therefore, the trial court erred in denying Barton and the JMJ entities’ motion for JNOV. We sustain their fourth issue.

Because our resolution of issue four is dispositive of the appeal, we do not address the remaining issues raised by Barton and the JMJ entities. Tex.R.App. P. 47.1. We also do not reach the issue raised by Sclafani Investments in its cross-appeal. Id.

CONCLUSION

We reverse the trial court’s judgment and render judgment that Sclafani Investments take nothing on its claims.

      . "PUD” stands for “planned unit development.” One witness, Edward Brooks, described a "planned unit development" as "a formal term in real estate that has to do with the layout, the planning, the traffic, the amount of construction that could be done on a piece of property” and approved by a governmental authority.

      . JMJ International was the company Barton intended to form as a separate company associated with the Biltmore PUD. According to Barton, JMJ International was to be the buying company and the company in which investors would invest in the project. JMJ International, however, was never formed. Instead, Barton formed JMJ Biltmore, LLC as the company to purchase and own the Biltmore PUD.

      . On May 24, 2005, die day before the deal closed, JMJ Biltmore, LLC assigned the Agreement to Nashville Biltmore, L.P. JMJ Biltmore was Nashville Biltmore’s general partner; Barton signed the assignment as the managing member of JMJ Biltmore. Nashville Biltmore assumed JMJ Biltmore's duties and obligations under the Agreement. Nashville Biltmore is not a party to this appeal.

      . Although Barton challenges, in one of his appellate issues, the trial court’s order striking his third-party claims, he has waived his complaint by signing an order agreeing to the dismissal. See Tex.R.App. P. 33.1(a).

      . They also challenge the judgment, claiming (1) the commission provision violates Tennessee law, (2) the evidence is legally insufficient to support the amount of damages awarded, and (3) the trial court erred in (a) excluding evidence regarding Sclafani Investments’s knowledge about the legality' of the agreement, (b) preventing Barton from making an offer of proof on the enforceability of the agreement, (c) failing to instruct the jury on past consideration, (d) awarding attorneys’ fees to Sclafani Investments, and (e) striking Barton's third-party claims. By cross-appeal, Sclafani Investments argues the trial court erred when it gave Barton and the JMJ entities excessive credits for payments made by certain settling defendants.

      . This "handshake deal” forms the basis of Sclafani Investments's breach of an employment contract claim. Sclafani Investments received this claim through assignment by Salvatore, who assigned "any and all claims and causes of action [he] may have by virtue of [his] employment with Timothy Barton....” The trial court directed a verdict against Sclafani Investments on this claim.

      . See Tenn.Code Ann. § 62-13-302 (2007).