author: CADENA, Chief Justice.

text:
    Q_ V_, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 15859.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 15, 1978.
    Rehearing Denied April 26, 1978.

      Antonio G. Cantu, Stephen P. Takas, Jr., San Antonio, for appellant.
    Bill M. White, Criminal Dist. Atty., Joe F. Brown, Jr., Gerald R. Zwernemann, Alan E. Battaglia, Asst. Criminal Dist. Attys., San Antonio, for appellee.
   CADENA, Chief Justice.

Appellant, a child, complains of the action of the Juvenile Court of Bexar County in certifying him to a district court for trial as an adult on a charge of murder. According to appellant’s brief, he also appeals from an order entered by the district court accepting the case for criminal prosecution of appellant as an adult.

Appellant’s appeal is based on the following contentions: (1) The trial court erroneously held that appellant cannot be rehabilitated by use of procedures, services, and facilities currently available to the Juvenile Court. (2) The finding that the offense was committed in an aggressive and premeditated manner is against the great weight of the evidence. (3) The trial court failed to include in its order a finding that no adjudication hearing had been had concerning the offense which was the subject of the “transfer” hearing. (4) The trial court failed to embody in its order a statement specifically reciting the reasons for ordering appellant to be tried as an adult. (5) The criminal district court failed to consider the matters enumerated in § 54.02, Tex.Family Code Ann. (1977), in exercising its discretionary right to either accept jurisdiction over appellant or to remand the case to the Juvenile Court.

A social worker who had been working with appellant testified that, in his opinion, appellant could be successfully rehabilitated by using the facilities available to the Juvenile Court. He based this conclusion on the fact that appellant had been cooperative and had responded to counseling in an affirmative manner. This conclusion was contradicted by the county psychologist who had conducted a psychological evaluation of appellant. This witness testified that appellant had “a probability for violent behavior” and that his rehabilitation would require a “structured environment.” In his opinion, the rehabilitation of appellant would require psychological counseling and other rehabilitative measures in such structured environment over a long period of time, and that the rehabilitative process would not prove fruitful if it did not extend beyond appellant’s 18th birthday.

It is true, as appellant points out, that the county psychologist exhibited little knowledge concerning the nature of the procedures, services, and facilities available to the Juvenile Court. However, he was unequivocal in his testimony to the effect that efforts to achieve appellant’s rehabilitation would be ineffective if they did not extend beyond his 18th birthday. This clear conflict in the testimony raised an issue of fact and it cannot be said that the trial court erred in concluding that appellant could not be rehabilitated during the relatively short period of time during which he would have the benefit of the facilities available to the Texas Youth Council and the Juvenile Court.

The evidence is also conflicting on the question of whether the offense was committed in an aggressive manner.

Tomas Ortiz testified that he was an eyewitness to the killing and his testimony may be summarized by saying that he testified that appellant slew his victim without provocation. According to this witness, appellant, armed with a pistol, went to the home of the witness looking for the deceased, who lived next door. After a short interval, the deceased arrived at the home of the witness, whereupon appellant asked the deceased if he knew the whereabouts of a friend of deceased. When the deceased professed ignorance of the friend’s whereabouts, appellant asked, “Do you want me to shoot you?” Although deceased gave a negative answer to this question, appellant proceeded to shoot him. According to this witness, deceased was shot “for no reason.”

Appellant showed that Ortiz had, prior to the hearing, given two statements to investigating officers in which he stated that he knew nothing of the shooting. He explained this by saying that at the time he gave such statements he was afraid.

Appellant produced several witnesses, including the widow of the deceased, who testified that, prior to the killing, deceased had severely beaten appellant. The county psychologist testified that appellant, during an interview, had stated that he shot the deceased in self-defense, and that it was necessary for appellant to shoot in order to prevent being killed. Appellant also told the psychologist that he was armed at the time because his life had been threatened by a person other than deceased.

The widow of the deceased testified that, after she heard the shots, she came out of her house and saw her husband bleeding. At that time appellant told her that he had shot her husband because her husband “had attempted to jump” appellant and was going to j hit appellant with a beer bottle. Appellant there claims that the testimony of the widow shows that deceased was shot because he attempted to assault appellant. We disagree. The widow did not witness the shooting and her testimony consists of no more than a recital of what appellant told her after the shooting.

The testimony relied on by appellant, at best, raises a question of fact and would support the conclusion that Ortiz was not telling the truth at the time he testified. However, proof of prior inconsistent statements by a witness does not require that the testimony of such witness be rejected. Here, the court obviously believed the explanation given by the witness concerning the reasons why he made the prior inconsistent statements. The trial court had the right to conclude that the witness, whom appellant describes as an “admitted liar,” had, because of fear, lied when he made the prior inconsistent statements, and that his description of the circumstances surrounding the killing, given from the witness stand, was true. It is true that the witness admitted he had lied, but this admission branded as false his prior inconsistent statements, not the testimony he gave in court.

There is no basis for the conclusion that the court erred in finding, on the basis of the testimony of Ortiz, that the offense was committed in an aggressive manner.

The Family Code, in § 54.02(a)(2), provides that the juvenile court may “waive” its jurisdiction and transfer a child to a district court for criminal proceedings if the child was 15 years of age at the time he is alleged to have committed the offense in question and “no adjudication hearing has been conducted concerning that offense; . . . .” The Code requires that the juvenile court, if it waives its jurisdiction, “state specifically in the order its reasons for waiver . . . .” § 54.02(h). Appellant urges that it is necessary that the court, in its order, state specifically that no adjudication hearing has been had concerning the offense in question. We do not agree.

The absence of an adjudication hearing is not a “reason” for the waiver of the jurisdiction of the Juvenile Court. The word “reason,” when used as a noun, refers to a statement made in explanation or justification. It refers to a reasonable ground or motive; a sufficient explanation; that is, a cause. The fact that no adjudication hearing has been held is not a justification for waiver of juvenile court jurisdiction. It is not a rational ground for such waiver. It is not the motive for or cause of the waiver. It certainly is not a sufficient ground or explanation for the waiver of jurisdiction. There can be no doubt that if the order merely stated that the Juvenile Court waived its jurisdiction because there had been no adjudication hearing, such statement could not be considered a compliance with the requirement embodied in § 54.-02(h) of the Family Code.

The fact that an adjudication hearing has been had precludes the possibility of waiver of its jurisdiction by the Juvenile Court. The fact that no such hearing has been held merely permits the exercise by the Juvenile Court of its power to waive jurisdiction and is neither a reason for waiver nor a reason for refusing to waive jurisdiction. Circumstances which permit the exercise of a power do not constitute reasons for exercising such power in a particular way.

The evidence in this case establishes conclusively that no adjudication hearing had been held. Cf. In re W. R. M., 534 S.W.2d 178 (Tex.Civ.App.—Eastland 1976, no writ), where, although the question here urged by appellant was not discussed, an order was affirmed although it contained no recitation concerning the holding of an adjudication hearing.

We have no quarrel with the result reached in In re J. R. C., 522 S.W.2d 579 (Tex.Civ.App.—Texarkana 1975, writ ref’d n. r. e.). The order there failed to recite the reasons for supporting the decision of the juvenile court to waive jurisdiction. This defect was a violation of the express requirement found in § 54.02(h), and the court expressly noted that this defect in the order was “of more potential for error” than the failure of the order to recite that no adjudication hearing had been held. If J. R. C. holds that a failure to recite the absence of an adjudication hearing renders the waiver order invalid, we decline to follow that holding.

In the transfer or waiver order the Juvenile Court stated that it considered the matters enumerated in § 54.02(f), setting out the matters enumerated in such section. The order contains the following findings: (1) Appellant is of sufficient intelligence and maturity to have aided in his defense. (2) The offense, murder, was against the person of another and was committed in an aggressive and premeditated manner. (3) The evidence concerning the offense was of such a nature that a grand jury may be expected to return an indictment. (4) The evidence and reports presented to the court demonstrate that there is little, if any, prospect of adequate protection to the public and likelihood of reasonable rehabilitation of appellant by the use of procedures, services, and facilities currently available to the Court.

While the enumerated findings are not designated as “reasons” for the waiver of jurisdiction, it is clear that the action of the Court is based on such findings. The fact findings are certainly an explanation of the trial court’s action. Without holding that the mere fact that the offense involved is murder is a sufficient reason for waiver of Juvenile Court jurisdiction, we hold that the order is sufficiently specific as to the “reasons” for such waiver. The findings show the commission of a serious crime'in an aggressive and premeditated manner and, more importantly, show that the primary purposes of our correctional institutions, protection of the public and rehabilitation of the offender, cannot be accomplished within the framework of the Juvenile Court system. Cf. In re Buchanan, 433 S.W.2d 787 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.).

Appellant’s final point, if it reflects error, relates to an error allegedly,committed by the Criminal District Court , rather than the Juvenile Court.

According to § 54.02(h) of the Family Code, “On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.”

Appellant complains that the Criminal District Court erred in refusing to require the State, at the examining trial, to present evidence with respect to the matters enumerated in § 54.02(f) of the Family Code.

The portion of the Family Code relied on by appellant enumerates the matters which a juvenile court should consider when it is called upon to make a decision concerning waiver of its jurisdiction. There is nothing in the Family Code indicating that, after transfer, the examining trial conducted by the criminal district court must be, in effect, a second hearing on the question of waiver of juvenile court jurisdiction. Appellant’s contention is inconsistent with the provision in § 54.02(h) that, after transfer, the child shall be treated as an adult, and that all proceedings thereafter shall be governed by the Code of Criminal Procedure. The examining trial conducted by the criminal district court is, of course, a “proceeding” which takes place after the transfer. Therefore, the examining trial is governed by the Code of Criminal Procedure and not by the Family Code, with but one exception. If the criminal district court, after conducting the examining trial, concludes that there is no probable cause for holding the child to await the action of the grand jury, it may, instead of ordering the child released, as would be the result in a case involving an adult, remand the child to the jurisdiction of the juvenile court. This sole difference in treatment is due to the express provision contained in the last sentence of § 54.02(h).

In any event, the error, if any, was committed during the course of a criminal proceeding which we have no jurisdiction to review, since our appellate jurisdiction is limited to civil cases. Tex.Const. art. V, §6.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Dave HICKS et al., Appellants, v. John WRIGHT and Thomas C. Hart, Appellees.
    No. 1055.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 16, 1978.
    Motion for Rehearing Overruled March 30, 1978.
    Rehearing Denied April 27, 1978.

      Karl Rubinstein, Stalcup, Johnson & Miller, Robert Blumenthal, William B. Dawson, Carrington, Coleman, Sloman, Johnson & Blumenthal, Randy Taylor, Dallas, for appellants.
    David S. Kidder, William T. Hankinson, Thompson, Knight, Simmons & Bullion, Chandler Lloyd, Biggers, Lloyd, Biggers, Beasley & Amerine, Dallas, for appellees.
   McKAY, Justice.

This is a suit to recover money paid by John Wright, appellee, to extinguish a debt on a promissory note signed by Mike Hicks, as payor, and Dave Hicks, as guarantor. Based on the jury’s findings, the trial court entered judgment for appellee for actual damages in the amount of $70,380.47, an amount stipulated to by the parties, and exemplary damages totalling $100,000.00. The court also entered judgment for appel-lee in the amount of $76,380.47 on the basis of equitable subrogation. It is from this judgment that appellants, Dave Hicks, Dave Hicks Company, Inc., Mike Hicks, Hicks Investments, Inc. and Eugene Goode and Goode Construction Company, have perfected their respective appeals.

This case is rather complex in that it involves several causes of action against various individuals and their respective corporate entities. Appellee’s petition alleged several causes of action, including fraud, conspiracy to commit fraud, conspiracy to “insure around,” equitable subrogation and a claim for bad checks claiming that all of the appellants engaged in a conspiracy to deceive and defraud John Wright by inducing his employee, Barbara Alexander, to issue title policy binders on certain residential lots without obtaining a release of the first lien and then using the binders as leverage to force him to pay the remaining balance due on two promissory notes, secured by a lien on the lots, signed by Hicks Investments, Mike Hicks and Dave Hicks. At the time of the alleged conspiracy the promissory notes were owned by Dave Hicks Company.

Each appellant filed an answer, answering also for his respective corporate entity. All appellants alleged that appellee had executed a release, that he had no cause of action as an individual, but only as agent of Commercial Title and Abstract Co., that he had actual knowledge of facts sufficient to put him on notice, and that his agent’s knowledge was imputed to him. Appellants Goode and Mike Hicks also plead that ap-pellee suffered merely as a volunteer and that they never dealt with appellee except in their capacities as representatives of their respective corporations. Goode and Dave Hicks plead the two year statute of limitations as a bar in addition to the fact that appellee failed to state a cause of action. Mike Hicks also plead that any statements made to appellee’s agent were merely promises to do certain acts based on future contingent events and that any payment by appellee individually was merely a sham to avoid application of estoppel to Commercial Title. Additionally, Dave Hicks plead that he was merely a guarantor on the notes, that the collateral had been released, and that appellee ratified his agent’s actions by accepting his commissions. Dave Hicks also filed a cross-action against appellee John Wright and Thomas C. Hart, President of Commercial Title and Abstract Co. Appellants do not complain of the take-nothing judgment in the cross-action.

The case was submitted to the jury on over one hundred special issues. In substance, the jury found that Eugene Goode and Mike Hicks, each individually, perpetrated a fraud upon John Wright and that $50,000.00 from Eugene Goode and $27,-000.00 from Mike Hicks would reasonably compensate John Wright for damages as a result of the fraud. They also found that Eugene Goode and Mike Hicks should pay to John Wright as exemplary damages for such fraud the amount of $25,000.00 each.

It was also found that Eugene Goode and Mike Hicks induced Barbara Alexander, ap-pellee’s agent, to illegally issue title policy binders on certain residential lots and that $5,000.00 from Goode and $5,000.00 from Hicks would reasonably compensate John Wright for his damages as a result of their actions.

The jury also found that Eugene Goode, Mike Hicks and Dave Hicks conspired to induce issuance of the title policy binders and force John Wright or Commercial Title to pay the balance of the notes and awarded $25,000.00 to appellee as damages for the conspiracy. Additionally, the jury awarded John Wright exemplary damages of $50,-000.00 as against Dave Hicks for the latter’s part in the conspiracy. It was also found that their respective corporations were the alter egos of the individual defendants.

The jury further found that John Wright knew or should have known that Barbara Alexander was issuing title policy binders without obtaining a release of the first lien; that he retained attorney’s fees on the closing transactions; that his failure to use due diligence proximately caused his injury; and that Barbara Alexander intended to carry out the duties of her position in issuing the title policy binders on the lots in question.

In substance, the court rendered judgment that John Wright recover all of those damages, actual and exemplary, set out above; that where damages were awarded against an individual defendant, they were also awarded jointly and severally against his respective corporation; that John Wright recover actual damages of $8,809.47 from Eugene Goode and $18,000.00 from Mike Hicks for checks which they gave to Commercial Title which were not honored; and that John Wright recover actual damages of $76,380.47 on the basis of equitable subrogation, jointly and severally, against Mike Hicks, Hicks Investments, Inc., Dave Hicks and Dave Hicks Company, Inc. The court further found that, by stipulation of the parties, actual damages on those actions submitted to the jury were limited to $70,-380.47 and entered judgment for that amount, plus interest, together with those exemplary damages found by the jury. At the same time the court entered judgment for those actual damages found by the court. All defendants duly perfected their appeals.

We affirm in part, reform in part and reverse and render in part.

In 1968, Mike Hicks purchased some raw land for residential development, and financed the purchase at the First National Bank of Fort Worth, the bank taking as security for its loan a first lien on all of the property. This initial loan was in the principal amount of $215,000.00. Only Mike Hicks’ signature appears on this note, dated September 8, 1968.

On January 6,1972, the bank made a loan of $88,000.00 on additional property in the same subdivision, subordinate to the first note. The second note was signed by Mike Hicks, as President of Hicks Investments, Inc. and Dave Hicks (father of Mike Hicks) as guarantor. Subsequently, there were extensions and renewals of both of these notes. All of these extensions were signed by Mike Hicks, individually and as President of Hicks Investments, and Dave Hicks as guarantor.

Eugene Goode, brother-in-law of Mike Hicks, was engaged in the residential construction business. In 1972, Goode purchased some 14 lots from Mike Hicks and began using the Grand Prairie office of Commercial Title and Abstract Company for his title work. Appellee John Wright was branch manager at this office. Rather than pay cash to Mike Hicks for the lots, Goode postponed payment until he had built and sold the house on the particular lot. It is the usual business practice to obtain the interim financing needed for construction of the houses by obtaining an interim title policy (binder) guaranteeing to the interim lender that there are no prior liens outstanding. To get a binder, it is necessary to obtain the release of all prior liens. In this case, the prior lien was held by the bank to secure the purchase money loan Mike Hicks used to buy the land. According to the agreement with the bank, before construction could start on a lot, the builder (Goode or Mike Hicks) had to pay either $3,000.00 or $3,925.00, depending on the lot, to the bank through Commercial Title, obtain a release of lien on that lot and then obtain a title binder.

Barbara Alexander, an employee of John Wright, was the “closer” in the Grand Prairie office of Commercial Title. She handled all transactions with Goode and Mike Hicks beginning in 1972.

It is unclear on what date in 1972 Eugene Goode first approached Barbara Alexander concerning the issuance of title policy binders without paying off the first lien. Nor is it clear how they communicated, whether by phone or in person. Also, there is some conflict as to the content of Goode’s statement to Mrs. Alexander. Barbara Alexander subsequently issued title policy binders on several lots without first obtaining a release of the prior lien.

Mike Hicks accompanied Goode to Commercial Title on several occasions. At some point Barbara Alexander began to follow the same illegal procedure with Mike Hicks.

For at least some of the lots, Mike Hicks and Goode gave Barbara Alexander checks in the name of their corporations to be held in the file and not presented. When these checks were later presented for payment by John Wright, Mike Hicks had stopped payment on his checks and Goode’s checks were returned due to insufficient funds. The total of Hicks Investments, Inc.’s checks was $18,000.00; Goode Construction’s total was $8,809.47.

On November 2,1973, Barbara Alexander told John Wright that she had followed this same procedure with another builder not a party to this lawsuit. Wright then fired her and began a complete review of the files. The records showed that 47 title policy binders had been issued to Mike Hicks or Goode without the release of the prior lien. Of those 47 lots, 23 remained with the prior lien outstanding at the time of Wright’s investigation.

On November 10, 1973, John Wright met with Mike Hicks and Goode. It was determined at this meeting that neither Mike Hicks nor Goode was able to pay the bank an amount which would release the prior liens on the 23 lots in question.

On November 11,1973, John Wright telephoned Dave Hicks to inform him of the problems which had arisen with Mike Hicks and Goode. There was another phone conversation between the two about a week later.

Dave Hicks Company, Inc., of which Dave Hicks owned 80% of the stock and was president, then purchased the two first lien notes in question from First National Bank of Fort Worth and received an assignment of the lien securing those notes.

About the 27th or 28th of November, at a meeting arranged by Wright, and attended by Wright, Thomas C. Hart, President of Commercial Title, and Chandler Lloyd, its attorney, Dave Hicks refused to pay his son’s checks or to release or subordinate the liens which Dave Hicks Company had been assigned when it purchased the notes from the bank. W. A. “Buster” Standifer, an attorney, represented Dave Hicks at this meeting. Dave Hicks, Will Barber, and Bonnie Jachalke were also present.

On November 30,1973, John Wright executed a promissory note in the principal amount of $75,000.00 to Midway National Bank of Grand Prairie as payee. These funds were used to purchase a cashier’s check which was then given to Commercial Title in the amount of $76,380.47.

A check in the amount of $76,380.47, dated December 3, 1973, from Commercial Title to Dave Hicks Company, Inc. and its attorney, W. A. Standifer was delivered in exchange for the release of the first liens on the 23 lots in question. Additionally, a release of all claims against Dave Hicks and Dave Hicks Company, Inc., dated December 3, 1973, was delivered to Standifer. The release was signed by Thomas C. Hart for Commercial Title and Abstract Co.

A summary of appellants’ points of error would prove to be rather lengthy. Appellants, Dave Hicks, Mike Hicks and Eugene Goode, assign 42, 35 and 51 points of error, respectively.

In examining those points relevant to the legal sufficiency of the evidence, or “no evidence” points, we may consider only the evidence and inferences in support of the jury’s finding, while disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In examining the factual sufficiency of the evidence, we must consider the whole record to determine if the jury’s answer is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

FRAUD

We will deal first with those points of error relevant to the findings of fraud on the part of appellants Mike Hicks and Eugene Goode.

The award of damages for fraud against Goode and Mike Hicks was based solely on the jury’s separate findings that each appellant fraudulently represented to Barbara Alexander that Dave Hicks would pay, if necessary, any outstanding first liens on any of the lots in issue. Therefore, we need not consider appellants’ points of error dealing with the jury’s failure to find that they fraudulently represented to Barbara Alexander that they, individually, would pay the outstanding first lien existing on any of the lots in question prior to the closing of the sale of any such lot. Both appellants challenge the legal and factual sufficiency of the evidence in support of the jury’s findings of fraud. In order to state a cause of action for fraud the plaintiff must show that the defendant made a false representation of a material fact with intent to induce the plaintiff to act upon it and that the plaintiff did so rely upon it and thereby suffered damages to his injury. Ryan v. Collins, 496 S.W.2d 205, 210 (Tex.Civ.App.—Tyler 1973, writ ref’d n. r. e.); Long v. Smith, 466 S.W.2d 32 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); 25 Tex.Jur.2d Fraud and Deceit, sec. 13 (1964) (Supp.1977), pp. 626-628. It necessarily follows that, in order to constitute actionable fraud, the representation complained of must concern a material fact as distinguished from a mere matter of opinion, judgment, probability, or expectation. Jeffcoat v. Phillips, 534 S.W.2d 168, 171 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.); Ryan v. Collins, supra; Fossier v. Morgan, 474 S.W.2d 801 (Tex.Civ. App.—Houston [1st Dist.] 1971, no writ).

The only evidence of any alleged representation by Eugene Goode is a statement made by Barbara Alexander in her deposition testimony. Viewing the statement in the light most favorable to the jury’s finding, Goode told Barbara Alexander, “Now, as well as I know, Dave Hicks’ money was behind it and he is on the note and his little boy is not going to have any problems.”

However, when the statement is read in context, it is unclear whether Barbara Alexander attributes the utterance to Goode or if she is making the statement herself. In ruling on the “no evidence” point, we will assume the statement is attributed to Goode. Even so, the statement is nothing more than an opinion, or expectation of future events, and is no evidence that Goode represented to Barbara Alexander that Dave Hicks would pay the outstanding first liens. It amounts to nothing more than mere conjecture on the part of Goode that if Mike Hicks was unable to pay off the first lien on the lots, his father would probably take care of it because the latter’s name was on the notes.

Accordingly, we hold that there is no evidence to support the jury’s findings that Eugene Goode falsely represented to Barbara Alexander that Dave Hicks would pay any outstanding first liens on the property in question. Therefore, we also hold there is no evidence to support any of the jury’s findings against appellant Goode on the issue of fraud, including that of exemplary damages.

In view of our holding that there is no evidence in the record to support the jury’s findings, we do not reach the factual sufficiency point. If the point were reached, however, we would hold that there is insufficient evidence in the record to support the jury’s findings of fraud against Eugene Goode.

Appellant Eugene Goode’s points of error 1, 4, 7, 10, 13, 16, 20, 23 and 26 are sustained.

The trial court instructed the jury that the testimony of Barbara Alexander could not be considered as evidence against Mike Hicks. However, her testimony is the only evidence of any alleged fraud. In light of that fact, appellee would have us apply Goode’s statements to Mike Hicks by inference. That is, because he accompanied Goode to Commercial Title on several occasions and received title binders without release of the first lien, Mike Hicks made the same fraudulent representations. Such inferences go beyond the scope of the “no evidence” test. There are no representations or actions of Mike Hicks presented in the record.

Accordingly, we hold that there is no evidence to support the jury’s findings that Mike Hicks falsely represented to Barbara Alexander that Dave Hicks would pay any outstanding first liens on the property in question. Therefore, we also hold that there is no evidence to support any of the jury’s findings against appellant Mike Hicks on the issue of fraud, including that of exemplary damages.

Appellant Mike Hicks’ points of error 1, 3, 5, 7, 9, 11, 17 and 19 are sustained.

In view of our holding that there is no evidence in the record to support the jury’s findings, we do not reach the factual sufficiency point. If the point were reached, however, we would hold that there is insufficient evidence in the record to support the jury’s findings of fraud as against Mike Hicks.

INSURING AROUND

Appellant Mike Hicks contends that there is no evidence, or, in the alternative, insufficient evidence to support the jury’s findings that he induced Barbara Alexander to “insure around” existing liens, thereby causing damage to John Wright in the amount of $5,000.00.

As stated earlier, we may not consider the deposition testimony of Barbara Alexander as evidence against Mike Hicks. Ap-pellee Wright argues that Mike Hicks is “guilty by association.” The only evidence of any inducement by anyone was that evidence of Eugene Goode’s conversation with Barabara Alexander. Mrs. Alexander testified that Goode said he would take his business elsewhere if she didn’t “insure around”; that she had nothing to worry about. She also testified as to the statement by Goode which referred to Dave Hicks. Appellee would have us impute these same statements to Mike Hicks because (1) Goode and Mike Hicks were building houses in the same area or addition, (2) Mike Hicks was selling lots to Goode, but postponing payment until the house had been built, and (3) Mike Hicks was also obtaining interim title binders without paying the first liens.

However, without Barbara Alexander’s testimony we are left only with the fact that Goode and Mike Hicks were associated together in business and that both obtained interim title binders without paying the first liens. There is documentary evidence of both of these facts contained in John Wright’s office files which were admitted into evidence. Without Barbara Alexander’s testimony we are left with no evidence as to why she issued the interim title binders to Mike Hicks. While Mike Hicks may have induced her to issue the interim binders, the record before us does not bear out such a fact. Therefore, we hold that there is no evidence to support the jury’s findings that Mike Hicks induced Barbara Alexander to “insure around” existing liens, that is, issue title policy binders without payment of the first liens.

Appellant Mike Hicks’ points of error 21, 23 and 25 are sustained.

In view of our holding that there is no evidence in the record to support the jury’s findings, we do not reach the factual sufficiency point. If the point were reached, however, we would hold that there is insufficient evidence in the record to support the jury’s findings that Mike Hicks induced Barbara Alexander to “insure around” existing liens, causing damage to John Wright in the amount of $5,000.00.

Appellant Eugene Goode has no point of error contesting the judgment against him based on his inducing Barbara Alexander to insure around.

CONSPIRACY

All the appellants challenge the jury’s findings that Eugene Goode, Mike Hicks and Dave Hicks conspired to induce Barbara Alexander to issue title binders and to force John Wright or Commercial Title to pay the indebtedness, thereby injuring John Wright. The appellants contend that the evidence is legally and factually insufficient to support the jury’s finding.

The Supreme Court in Sehlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856-858 (Tex.1969), stated the law of civil conspiracy as applied in this State:

“A civil conspiracy has been defined by this court as ‘a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.’ Great Nat’l Life Ins. Co. v. Chapa, 377 S.W.2d 632, 635 (Tex.1964); State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550 (1937). But the gist of a civil conspiracy is the damage resulting from commission of a wrong which injures another, and not the conspiracy itself. Starling v. Hill, 121 S.W.2d 648 (Tex.Civ.App.—Waco 1938, no writ); Shelton v. Lock, 19 S.W.2d 124 (Tex.Civ.App.—Amarillo 1929, writ dism’d); 16 Am.Jur.2d 149, Conspiracy, see. 344.
“One without knowledge of the object and purpose of a conspiracy cannot be a co-conspirator; he cannot agree, either expressly or tacitly, to the commission of a wrong he knows not of. ... [O]ne of the essential elements required to establish a civil conspiracy is ‘a meeting of the minds on the object or course of action.’ And, of course, one without knowledge of a conspiratorial plan or scheme to injure another by the commission of a particular wrong cannot share the intent to injure such other.
“The conspiracy alleged ... in this case may be analogized to a conspiracy to defraud. We think the Supreme Court of Tennessee announced a sound rule of law to be applied in such cases in Brumley v. Chattanooga Speedway & Motordrome Co., 138 Tenn. 534, 198 S.W. 775, 776 (1917), when it said:
‘A “conspiracy to defraud” on the part of two or more persons means a common purpose, supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each has the understanding that the other has that purpose.’ [Emphasis theirs.]
“The general governing rule is stated as follows:
‘There must be an agreement or understanding between the conspirators to inflict a wrong against, or injury on another, a meeting of the minds on the object or course of action, and some mutual mental action coupled with an intent to commit the act which results in injury; in short, there must be a preconceived plan and unity of design and purpose, for the common design is of the essence of the conspiracy.’
“Cf. International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 581 (1963).
“We recognize that proof of a conspiracy may be, and usually must be made by circumstantial evidence, Jernigan v. Wainer, 12 Tex. 189 (1854), but vital facts may not be proved by unreasonable inferences from other facts and circumstances .; or, as has often been said by this court, a vital fact may not be established by piling inference upon inference . . To permit proof in this fashion, would violate the rule of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), which requires proof of any vital fact by evidence amounting to something more than a mere scintilla.”

Although circumstantial evidence may be sufficient to prove the existence of a conspiracy, disconnected circumstances any one of which, or all of which, are just as consistent with a lawful purpose as with an unlawful undertaking are insufficient to establish a conspiracy. Fun Time Centers, Inc. v. Continental National Bank, 517 S.W.2d 877, 883 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Switzer v. Joseph, 442 S.W.2d 845 (Tex.Civ.App.—Austin 1969, no writ).

A review of the evidence which appellee contends constitutes evidence of the alleged conspiracy is in order.

Appellee alleges that Barbara Alexander’s testimony establishes the existence of an “agreement/conspiracy” between Goode and herself. He argues that such is established by the documents pertaining to such lots. It is true that these same documents show Mike Hicks to be receiving title binders without paying off his first liens.

Appellee would have us infer Mike Hicks’ guilty knowledge from the following circumstances. First, Mike Hicks and Goode were building lots in the same subdivision and Goode was buying his lots from Mike Hicks.

Mike Hicks was not receiving payment for his lots until the house had been built and accompanied Goode to Commercial Title when the latter dealt with Barbara Alexander. John Wright testified that, at the November 10, 1973, meeting, “Mike [Hicks] said that he knew they were in trouble.” Based on this evidence, appellee infers to Mike Hicks knowledge of the alleged conspiracy and, from that knowledge, infers participation in the alleged conspiracy to violate Art. 9.08, Insurance Code, V.A.T.S. Appellee then infers a tacit agreement between Mike Hicks and Eugene Goode to “[obtain] what was, in effect, a loan of $3,000 to $4,000 per lot by postponing payments on the lot loans.”

As to Dave Hicks’ part in the alleged conspiracy, the evidence shows that Buster Standifer, Dave Hicks’ attorney, received a title report on three lots, not involved in this suit, showing the first liens on those lots to be outstanding. Standifer testified as to Dave Hicks’ purchase of the interim notes on four lots, including the three on which he had a title report, in October of 1973. Based on that evidence, appellee infers to Dave Hicks knowledge of his son. and Goode having obtained interim loans and title binders without paying off the first liens.

Appellee infers Dave Hicks’ knowledge from other evidence. Dave Hicks had long been a long time customer of the First National Bank of Fort Worth. The bank knew Dave Hicks was guarantor on both notes. Appellee infers to the bank knowledge of Mike Hicks having obtained interim binders without release of the first liens from a “Memorandum to Loan Application and Review Committee,” dated September 1, 1969. Therefore, based on the bank’s inferred knowledge, appellee infers that the bank informed Dave Hicks of his son’s business practices.

Appellee also infers Dave Hicks’ knowledge from the constructive knowledge of Bonnie Jachalke, secretary-treasurer for both Hicks Investments and Dave Hicks Company. If she knew that Goode and Mike Hicks were paying the lot loans out of the closing proceeds, appellee contends Bonnie Jachalke had constructive knowledge that Mike Hicks had induced Commercial Title to insure around. From there, appel-lee would infer that Bonnie Jachalke informed Dave Hicks of the alleged acts.

Lastly, appellee claims Dave Hicks’ knowledge is to be inferred from the alleged statement of W. A. Standifer at the meeting in late November 1973. John Wright testified that Standifer said: “We’ve known about this for a long time. We’ve got you where we want you. Someone is going to pay and it’s not going to be us.”

Appellee contends that Dave Hicks’ participation in the conspiracy is evidenced by his purchase of the promissory notes in the name of his company, by Standifer’s statement, and also at the late November 1973, meeting by Dave Hicks’ refusal to subordinate his lien and pay to Commercial Title the amount of Mike Hicks’ checks which had not been honored. Appellee contends that these alleged acts of conspiracy forced John Wright to pay off the liens on the lots in question. Dave Hicks Company was paid $76,380.47 allegedly by John Wright.

In any civil conspiracy there must be a meeting of the minds as to the object or course of action. In this case, all the alleged conspirators must have agreed, expressly or tacitly, to force John Wright to pay off the loans. In our opinion, there is no evidence of any agreement, express or tacit, between the alleged conspirators to force John Wright to pay any amount.

The basis of appellee’s conspiracy claim is an “agreement/conspiracy” between Barbara Alexander and Eugene Goode. There is no evidence that Barbara Alexander intended any harm to anyone as a result of her issuance of the title binders without release of the first liens on the lots. In fact, the only evidence on that point is directly to the contrary. Barbara Alexander testifies in her deposition, on which appellee relies, that she issued the binders to keep Goode from taking his business elsewhere. In other words, she issued the binders to benefit Commercial Title, and therefore John Wright. We must note here that any finding of a conspiracy on the part of Mrs. Alexander would be in direct conflict with appellee’s alleged cause of action for fraud. No conspiracy existed between Barbara Alexander and Eugene Goode.

Since the court excluded Barbara Alexander’s testimony as against Mike Hicks we may not consider her deposition testimony as against him. In our opinion were we to take her testimony into consideration there is still no evidence of any agreement between the alleged conspirators. Mike Hicks’ statement that he knew they were in trouble indicated nothing more than a realistic appraisal of his situation.

Dave Hicks’ knowledge of the conspiracy can only be established by piling inference upon inference, i. e., his purchase of the notes in his company’s name, refusal to subordinate his liens and pay off his son’s checks. His actions in this regard are just as consistent with a lawful purpose as with an unlawful undertaking and are insufficient to establish a conspiracy.

Accordingly, we hold that there is no evidence to support the jury’s findings that Eugene Goode, Mike Hicks, and Dave Hicks conspired to induce Barbara Alexander to issue title policy binders on the lots in issue without release of the first lien and force John Wright or Commercial Title to pay off the notes secured by said lots, causing damage to John Wright in the amount of $5,000.00.

In view of our ruling that there is no evidence to support the jury finding of conspiracy, we do not reach the factual sufficiency point. If we were to reach the point, however, we would hold it to be insufficient.

Appellant Dave Hicks’ points of error 5, 6 and 27 are sustained. Appellant Mike Hicks’ points of error 27, 29 and 31 are sustained. Appellant Eugene Goode’s points of error 30, 33 and 36 are sustained.

Based upon its finding of Dave Hicks’ malice in conspiring, the jury awarded exemplary damages of $50,000.00 against him. However, it is well settled that exemplary damages may not be recovered unless the plaintiff is shown to have sustained actual loss. Girard v. Moore, 86 Tex. 675, 26 S.W. 945, 946 (1894); First Texas Prudential Ins. Co. v. Moreland, 55 S.W.2d 616, 621 (Tex.Civ.App.—Beaumont 1932, writ dism’d); Phillips v. Wertz, 546 S.W.2d 902, 907 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). Based on our ruling that no evidence existed as to any conspiracy and hence no evidence of any actual damages caused thereby, we hold there is no evidence to support the jury’s finding of malice and exemplary damages in response to special issues 26 and 27 and would further hold that there is insufficient evidence to support such findings.

Appellant Dave Hicks’ points of error 39 and 41 are sustained.

We agree with appellant Dave Hicks that special issue 19 was improperly submitted in that it allowed the jury to find that an intentional tort was inflicted upon Commercial Title rather than John Wright. In that respect, special issue 19 was multifarious. If the appellees conspired to force Commercial Title to pay off the notes, then the latter is bound by its release. Therefore, any cause of action Wright might have must be personal and may not derive from the alleged rights of Commercial Ti-tie. Any derivative cause of action would then be barred by Commercial Title’s release. Were it not for our prior rulings on the sufficiency of the evidence, this error of the trial court would be sufficient for remand on the issue of conspiracy. Appellant Dave Hicks’ point of error 13 is sustained.

ALTER EGO

In determining whether a corporation is the alter ego of an individual, we must consider Judge Calvert’s statement in Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 351 (1955):

“Courts will not disregard the corporation fiction and hold individual officers, directors or stockholders liable on the obligations of a corporation except where it appears that the individuals are using the corporate entity as a sham to perpetrate a fraud, to avoid personal liability, avoid the effect of a statute, or in a few other exceptional situations.”

This principle is reaffirmed in Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex.1962), and in Bell Oil & Gas Co. v. Allied Chemical Corp., 431 S.W.2d 336, 340 (Tex.1968), and many other cases.

The reasons for disregarding the corporate entity are “when the corporation is used to perpetrate a fraud, to evade an existing legal obligation, to achieve or perpetrate a monopoly, to protect a crime, to justify a wrong, to circumvent a statute, and when one corporation exists as a mere tool or business conduit of another corporation.” Minchen v. Van Trease, 425 S.W.2d 435, 437 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.); Rosenthal v. Leaseway of Texas, Inc., 544 S.W.2d 180, 181 (Tex.Civ.App.—Tyler 1976, no writ).

While each case involving disregard of the corporate entity must rest upon its own facts, this court said in Holmes v. Clow, 533 S.W.2d 99, 101-102 (Tex.Civ.App.—Tyler 1976, no writ):

“In order to warrant piercing the corporate veil, the courts generally require the presence of one or more of the following factual situations: (1) evidence that the corporate entity amounts to a fraud, promotes injustice or it is relied on to justify a wrong, (2) that it was inadequately capitalized, (3) that an individual controls and manages the entity in such a manner that it becomes his alter ego, and (4) that the corporate formalities were not adhered to by the corporation.”

We believe it is sufficient to say that, as to all these corporate appellants, the evidence is legally and factually insufficient to warrant piercing the corporate veil.

Accordingly, appellant Dave Hicks’ point of error 35 is sustained; appellant Mike Hicks’ point of error 32 is sustained; and appellant Eugene Goode’s point of error 39 is sustained.

In view of our holding that there is no evidence in the record to support the jury’s findings, we do not reach the factual sufficiency points. If the points were reached, however, we would hold that there is insufficient evidence in the record to support the jury’s findings that their respective corporations were the alter egos of Dave Hicks, Mike Hicks and Eugene Goode.

RELEASE

The evidence is undisputed that John Wright took out a personal loan in the amount of $75,000.00 and placed the loan proceeds in the escrow account of Commercial Title; that Commercial Title later wrote a check to Dave Hicks Company in the amount of $76,380.47; that the check was given for and recited as consideration for the release by Dave Hicks Company of its lien on the lots in question as stated in a release dated December 3, 1973, signed by Thomas Hart, President of Commercial Title. In view of these undisputed facts, it is our opinion that in executing the release, Thomas Hart was acting for John Wright and thereby bound Wright as to Dave Hicks and Dave Hicks Company.

Appellee contends that even if John Wright was bound by the release, such release was executed under duress. The jury found that the release was executed under duress. However, we find no evidence of duress in the record. Nowhere did Dave Hicks or Dave Hicks Company threaten to do something which they had no legal right to do. Lawrence v. J. M. Huber Corp., 347 S.W.2d 5, 6 (Tex.Ciy.App.—Waco 1961, no writ). There is no evidence of a threat to do any act, legal or illegal. There was an obvious potential threat of foreclosure. John Wright acknowledged this potential threat. However, this is an act which Dave Hicks or Dave Hicks Company had a legal right to do. Appellant Dave Hicks’ points of error 1 and 2 are sustained.

In view of our ruling on the release, John Wright may not pursue any action against Dave Hicks and Dave Hicks Company. Therefore, Wright may not pursue any action he might have based on equitable sub-rogation against Dave Hicks or Dave Hicks Company.

However, Mike Hicks and Hicks Investments, Inc. do not have any points of error contesting the judgment against them based on equitable subrogation.

In view of our prior rulings in the case, we do not reach those points of error dealing with appellee’s due diligence and reasonable care, the statute of limitations, and Barbara Alexander’s agency relationship. All points which have not been discussed have been considered and found to be without merit and are accordingly overruled.

That portion of the judgment of the trial court awarding appellee $5,000.00 against Eugene Goode, individually, based on inducing Barbara Alexander to “insure around” is affirmed; and that portion of the judgment awarding appellee $76,380.47, jointly and severally, against Mike Hicks and Hicks Investments, Inc. on the basis of equitable subrogation is affirmed. The judgment of the trial court is reformed and judgment is here rendered that Goode Construction Company is jointly and severally liable for $8,809.47 of the judgment of $76,380.47 against Mike Hicks and Hicks Investments, Inc. We also affirm the trial court’s judgment that appellants Dave Hicks and Dave Hicks Company take nothing by their cross-action. In all other respects, the judgment of the trial court is reversed and rendered that appellee take nothing.

ON MOTION FOR REHEARING

In holding, as a matter of law, that John Wright was bound by the release between Commercial Title (signed by Thomas Hart) and Dave Hicks and Dave Hicks Company, we are not to be understood as finding that Hart acted as agent for John Wright. Rather, it is our view that because Wright gave the money to Commercial Title for its own use, he was equitably subrogated to any rights arising out of the payment to Dave Hicks and his corporation.

It is clear that any possible cause or causes of action in Wright’s favor as against Dave Hicks and Dave Hicks Company arose out of the payment of $76,380.47 from Commercial Title to Dave Hicks. It is also clear that in making such payment Commercial Title protected itself and John Wright against any possible liability in the event Dave Hicks Company foreclosed on its liens. Because John Wright provided the money for Commercial Title to negotiate the release, he was equitably subrogat-ed to any rights they might have acquired by virtue thereof.

It is fundamental that a subrogee stands in the shoes of the subrogor and in the absence of some special contract arrangement has no greater rights than those of the subrogor. Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679 (1931); Anchor Casualty Co. v. Robertson Transport Co., 389 S.W.2d 135 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.). Such is the case at bar. Being subrogated to the rights of Commercial Title arising out of the payment of the $76,380.47, Wright had no greater rights than Commercial Title. Thomas Hart, acting for Commercial Title, bound Wright as to Dave Hicks and Dave Hicks Company in that Wright could not assert a claim which Commercial Title could not assert.

We disagree with appellee’s contention that we are rewriting the release, thereby violating the parol evidence rule. The question of the effect of the release is one of legal construction, and, therefore, a question of law for the court. See Exchange Bank and Trust v. Lone Star Life Ins. Co., 546 S.W.2d 948, 953 (Tex.Civ.App.—Dallas 1977, no writ). Our holding merely acknowledges the legal effect of the release. All motions for rehearing in this cause are overruled.

      . Where the term “appellee” appears in this opinion, it refers only to John Wright.

      . Although there were 84 numbered special issues, special issues 3 and 16 contained numerous subparts.

      . Mike Hicks’ points of error 13-16; Goode’s point of error 19.

      . In relation to the rule on consideration of a “no evidence” point we must disregard all evidence contrary to the jury’s finding. In actuality, Mrs. Alexander testified: “Well, needless to say that I felt it would be a feather in my hat if we got the Hicks business .... And, like I say, I was always under the assumption, because of word of mouth from other people, and I am saying this as flat as I can remember it, because of word of mouth of other people that Mike Hicks and his father were very well off.”

      . “SPECIAL ISSUE NUMBER NINETEEN:
      “Do you find from a preponderance of the evidence that Mike Hicks, Eugene Goode and Dave Hicks conspired to induce Barbara Alexander to-issue title binders as to the lots in issue without the first liens on said lots being first released and to force John Wright or Commercial Title to pay off the notes secured by the said lots?”

      . Appellant Dave Hicks’ points of error 32 and 33; appellant Eugene Goode’s points of error 42, 44 and 49.

      . Appellant Dave Hicks’ points of error 14-21.

      . Appellant Dave Hicks’ points of error 22-31; Eugene Goode’s points of error 43, 45, 46, 47, 48 and 50.


author: BISSETT, Justice.

text:
    NUECES TRUST COMPANY, Appellant, v. Carlos R. (Buddy) WHITE, d/b/a E-Z Motors, Appellee.
    No. 1255.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 28, 1978.

      Max J. Luther, III, Corpus Christi, for appellant.
    Bob J. Spann, Spann, Perry & Smith, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a suit to recover damages, both actual and punitive, caused by the alleged wrongful withholding of possession of a Manufacturer’s Statement of Origin of a 1975 Cadillac automobile, the wrongful withholding of a Certificate of Title to the automobile, and the wrongful assertion of a lien against the same. Suit was instituted by Carlos T. (Buddy) White, “d/b/a E-Z Motor Mobile Home Sales & Service”, against Nueces Trust Company in the District Court of Nueces County, Texas, on May 13,1976. Nueces Trust filed a general denial in the action brought against it by White; it filed a cross action against White to recover the balance ($6,336.36) alleged to be due it on a note executed in its favor by Gary Hardee, who was alleged to have been a partner in E — Z Motor Company on the date the note was signed; it further filed a third party action against Gary Hardee. Trial was to the court sitting without a jury.

Judgment was signed on May 6, 1977. Under the terms of the judgment, Nueces Trust was directed to deliver the Certificate of Title to the Cadillac automobile in question to White “with all liens or security interest shown in favor of said Nueces Trust Company properly released by an authorized officer of said defendant”; it was further provided in the judgment that “damages shall accrue at the rate of Fifteen Dollars ($15.00) per day from date of judgment so long as the above mentioned Certificate of Title is withheld from the plaintiff”; in addition, White was awarded $2,000.00 as actual damages incurred to date of judgment, and $2,000.00 as punitive damages. The judgment further denied Nueces Trust all relief sought by it against White on its cross action and awarded Nueces Trust a recovery of $6,000.34 against Gary Hardee. Nueces Trust still withholds the Certificate of Title from plaintiff White.

Nueces Trust appeals only from that portion of the judgment which awarded damages to White. It does not bring forward a point of error which challenges that portion of the judgment which directed it (Nueces Trust) to deliver the Certificate of Title to the Cadillac to White with all liens shown thereon in favor of Nueces Trust released, nor does it complain by a point of error relating to the denial of the relief sought by its cross action against White. Hardee did not appeal from that portion of the judgment which was adverse to him.

Where a statement of facts has been filed but neither findings of fact nor conclusions have been requested nor filed, as is the case here, the appellate court may affirm the judgment of the trial court on any legal theory supported by the evidence. We apply that rule to this appeal.

Formal demand for the return of the Manufacturer’s Statement of Origin of the Cadillac was made on Nueces Trust by White on October 17, 1975. Nueces Trust refused to return the same. Formal demand was made on White by Nueces Trust on December 31, 1975 for the payment of the net balance, “including sales tax and license expense paid”, due on the note which was executed by Hardee on February 21, 1975. White refused to pay such balance.

In its first point of error, Nueces Trust asserts that the trial court erred in failing to grant said motion since the partnership between Hardee and White was “admitted as a matter of law”. We do not agree.

White alleged that he was the owner of the Cadillac automobile here involved at all times material to this lawsuit; that he was informed that Nueces Trust had loaned money to Gary Hardee who purported to be a partner in E-Z Motor Company, the name in which the title to the Cadillac had been issued by the dealer; that Nueces Trust claimed a lien on the automobile because of the loan to Hardee; that he advised Nueces Trust that Hardee did not have any authority to create a lien on the automobile, and that Nueces Trust’s possession of the original Statement of Origin of Title was unlawful and that such possession deprived him (White) of the right to sell or trade the automobile at its most advantageous market price. White demanded a return of the original Statement of Origin of Title, which was refused by Nueces Trust.

In a verified cross petition and third party petition, Nueces Trust alleged that White and Hardee were partners doing business under the name of E-Z Motor Company; that on or about February 21, 1975, Hardee, acting as a partner for E-Z Motor Company, executed and delivered to Nueces Trust a promissory note in the original sum of $6,336.36, which was secured by a security agreement or mortgage on the automobile in question; that Hardee made certain payments on the note in the total amount of $528.04, but failed to pay any of the installments which became due after July 1, 1975, whereupon Nueces Trust declared the balance on the note to be due and payable. Nueces Trust prayed for a recovery of the balance ($5,808.32) due on the note, for foreclosure of its mortgage on the automobile, for costs, and for reasonable attorney’s fees.

White, in his answer to Nueces Trust’s cross petition, which was not verified but was sworn to on October 27, 1976 and filed the next day, denied that Hardee was ever a partner with him in any business, particularly in E-Z Motor Company. He further denied that he authorized Hardee to execute the note and security agreement described in the cross petition. Hardee did not file an answer to the third party petition. He did not testify in person at the trial, but portions of his deposition and answer to interrogatories were introduced into evidence over White’s objections.

Trial commenced on March 11, 1977. After several witnesses called by both White and Nueces Trust testified, the trial was recessed until March 30, 1977, when it was resumed. At that time, which was before either party had rested or closed, Nueces Trust moved, by a written motion, that the court decree as a matter of law that a partnership existed between White and Hardee. In support thereof, Nueces Trust asserted: 1) It (Nueces Trust) “by sworn pleadings, duly verified, and offered as evidence in this case, alleged the existence of a partnership between the cross-defendants, Carlos T. (Buddy) White and Gary Hardee”; 2) the existence of such a partnership was admitted by Gary Hardee in his deposition and in his answers to “Requests for Admissions”; and 3) “the existence of a partnership having been raised by the cross-plaintiff under oath and not having been denied by verified pleadings by the cross-defendant Carlos T. (Buddy) White”, then under Rule 93(b) T.R.C.P., “the partnership must be deemed admitted as a matter of law”.

The trial court, over objection by Nueces Trust, then permitted White to file a document, entitled “Amended Affidavit to Plaintiff’s Answer to Defendant’s Cross-Petition”, which reads, as follows:

“My name is Carlos T Buddy White I am the plaintiff in cause # 76-1382-B Carlos T. White VS Nueces Trust Company and Cross Defendant. I have personal knowledge of the matter contained in Plaintiff’s Answer to Defendant Amended Cross-Petition and state under oath that the allegations in such cross petition were verified by me under oath on the 27th day of October 1976 and state under oath today that the allegations contained in such pleading are true and correct. I further (sic) more state under oath that Gary Hardee has never been a partner in E-Z Motors nor a partner of mine nor was he authorized to borrow money in my name or the name of E-Z Motor from Nueces Trust Co or execute a security agreement or note on the car involved
/S/ Buddy White
Sworn to and subscribed before me the under signed Notary Public by ‘Buddy’ Carlos T White this 30th day of March 1977.
(SEAL)
/S/ Shirlev J. Morrison Shirley J. Morrison
/S/ Notary Public In and for Nueces County, Texas”

Nueces Trust objected to the filing of the “amended affidavit” on the sole ground that the attempted amendment came at an improper stage in the proceedings because: “the verification was filed after the filing of plaintiff’s motion to deem the partnership admitted under Rule 93”. Nueces Trust did not object to the form or substance of the verification in the “amended affidavit”. On appeal, Nueces Trust urges for the first time that the affidavit is defective for the reason that the second sentence in the affidavit verifies Nueces Trust’s amended cross-petition and not White’s cross-answer to the amended cross-petition. The caption of the document in question, in effect, states that it is an amendment to the affidavit contained in White’s answer to the cross-petition filed by Nueces Trust. In the first sentence of the “amended affidavit”, White states that he is the cross-defendant in the cause. In the next sentence, while he does state that he has personal knowledge of the matters contained in his answer to the cross-petition, he further states he verified the amended cross-petition, on October 27, 1976. The only pleading sworn to and subscribed by White on that date which has been filed in this ease is his answer to the amended cross-petition. The record shows that the amended cross-petition was filed on October 18, 1976; was signed by the attorney for Nueces Trust; and was verified by the President of Nueces Trust. White does not thereafter refer to the amended cross-petition but only as to the instrument which verified “such pleading”. In the third and final sentence of the amended affidavit, White again denies the existence of the partnership between himself and Hardee. We conclude from a reading of the instrument as a whole that White intended to and did verify his amended cross-answer, and not Nueces Trust’s amended cross-petition. The use of the words “cross petition” in the “amended affidavit”, instead of the words “answer to the cross petition” was due to inadvertence.

Nueces Trust did not point out the pleading defect to the trial judge as required by Rule 90, T.R.C.P. As already stated, the only complaint was that the “amended affidavit” was filed at an improper time. The failure to point out a pleading defect to a pleading amendment results in waiver of such defect. Steahr v. Clark, 535 S.W.2d 39, 41 (Tex.Civ.App.—Austin 1976, no writ); Mizell Construction Company and Truck Line, Inc. v. Mack Trucks, Inc., 345 S.W.2d 835, 838 (Tex.Civ.App.—Houston 1961, no writ). A party cannot complain of a pleading defect for the first time on appeal. Sherman v. Provident American Insurance Company, 421 S.W.2d 652, 654 (Tex.Sup.1967); Gonzalez v. Regalado, 542 S.W.2d 689, 692 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.). We hold that the trial court did not err in refusing to deem the partnership between White and Hardee admitted as a matter of law. Additionally, the partnership was not established as a matter of law against White on the basis of Hardee’s assertions that a partnership existed. Robinson v. First Nat. Bank of Marietta, 98 Tex. 184, 82 S.W. 505, 506 (1904); North Texas Lumber Company v. Kaspar, 415 S.W.2d 470, 474 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.); C. McCormick & R. Ray, Texas Law of Evidence § 1167 p. 60 (1956). Nueces Trust’s first point of error is overruled.

Nueces Trust, in its second and third points of error asserts that the trial court erred in awarding $2,000.00 as actual damages to date of judgment (point 3), and in awarding $2,000.00 as exemplary or punitive damages (point 2), on the ground that such awards are against the great weight and preponderance of the evidence. Neither point can be sustained under the record here presented.

White had full possession and use of the Cadillac automobile in question at all times pertinent to this appeal. According to his testimony, he was the sole proprietor of E-Z Motor Company, -a" business which sold mobile homes, for a number of years prior to 1975. E-Z Motor’s operation had grown to the point where White invested and borrowed sums of money freely. He was accustomed to borrowing large sums of money in order to finance his operations. Nuec-es Trust Company is a finance company that makes many automobile loans. It had made several loans to one Gary Hardee prior to February 21, 1975. It had never done any business with White. In late 1972 White became acquainted with the same Gary Hardee under an arrangement wherein Hardee would, on occasion set up on location mobile homes, sold by White. White testified that because Hardee was performing this function during this period of time he was given access to White’s office at the E-Z Motor Company. The Statement of Origin and Certificate of Title of a vehicle owned by E-Z Motor Company were kept in filing cabinets in its office. The filing cabinets were not locked. In December, 1974, White purchased a 1975 Cadillac, hereinafter referred to as the “Cadillac” for use by E-Z Motor. White testified that he preferred new Cadillacs for their “prestige value” and it was a practice to keep one for approximately a year and then trade it in on a newer model. He further testified that Hardee was allowed use of the Cadillac on several occasions on the assumption that Hardee would use it to set up an office trailer which he had purchased from E-Z Motor.

On February 21, 1975, Hardee came to the office of the Nueces Trust in possession of and driving the Cadillac in question. He also had in his possession and presented to James L. Vinyard, an officer of Nueces Trust the original of the Manufacturer’s Statement of Origin to the automobile. The Cadillac had been assigned to E-Z Motor by Bailey Cadillac, of Corpus Christi, on December 16, 1974. Vinyard testified that he examined the car, compared the Manufacturer's Statement of Origin of the motor vehicle with the vehicle driven by Hardee and determined that the serial numbers were the same. Hardee then executed in Vinyard’s presence a promissory note and Security Agreement dated February 21, 1975, which note was made in the name of E-Z Motor Company by Gary Hardee, a partner. Based upon this promissory note secured by the mortgage on the Cadillac, Nueces Trust loaned $5,000.00 do ■ Hardee. The proceeds of the loan were delivered to Hardee in two checks, each dated February 21, 1975, in the amount of $3,000.00 and $2,000.00, respectively.

There is a conflict in the testimony as to whether Gary Hardee was a partner in E-Z Motor Company at that time and whether Hardee had authority to use the Cadillac as collateral to borrow money. Hardee, by deposition, over White’s objection, testified that he and White agreed to go into business together in the E-Z Motor Company; that White needed a small amount of cash; that borrowing a small amount was embarrassing to an established businessman; that White gave Hardee the Statement of Origin to the 1975 Cadillac and told him to borrow money upon it. He further stated in his deposition that he gave the $2,000.00 check to White and spent the rest on the business. White testified that he was never in partnership with Hardee; that Hardee was not authorized to use the Cadillac for security; that he accepted the $2,000.00 check in payment for an office trailer sold to Hardee; that he did not know that the check represented part of the money received by Hardee relating to the loan; that Hardee had no authority to take the Statement of Origin for the Cadillac from the office file; and that he did not discover what Hardee had done until he attempted to sell the car later in the year.

Elmore Volesky, called by Nueces Trust, testified that he was hired by White and Hardee to work at E-Z Motor Company during the period in question; that White and Hardee would direct him in driving trucks, pulling mobile homes and other tasks; that Hardee paid him by check for work done for E-Z Motor Company; that he overheard conversations between Hardee and White discussing details of the business such as how to get trucks, where to put trailer homes and other matters. He had no independent recollection of the specific details concerning these checks.

White testified that Hardee was in the business' of moving, rebuilding, and remodeling mobile homes for insurance companies and that during this period of time Volesky assisted Hardee in making the office operational. Vinyard testified that he had known Hardee for more than ten years; that Nueces Trust had loaned Hardee money in the past to repair trailers, and that in so doing the loans, in some instances, were secured by liens on the particular trailer for the money loaned.

The note payments were not kept up. Vinyard said that he telephoned White around August 1, 1975. Vinyard called White in regard to the delinquent payments, and, according to Vinyard, White informed him that he had authorized Har-dee to borrow the Cadillac to use as collateral for the loan. White’s recollection of the telephone call was different; he recalled that Vinyard phoned him in an attempt to reach Hardee and informed him that Nueces Trust had title to the Cadillac. White further stated that he demanded the immediate return to him of the Manufacturer’s Certificate since he “didn’t authorize Gary or anybody else to borrow any money on the car” and that Vinyard responded “. . . I’ll have to let you know or call you back or something”. White further testified that Vinyard had already informed Bailey not to trade with White, since the Cadillac had a lien on it with Nueces Trust.

On October 17, 1975, White’s attorney sent the attorney representing Nueces Trust a letter advising that Hardee had never been a partner in E-Z Motor and had never had “any right to use the title of this Cadillac for the purposes of securing a loan”. Demand was made “for the return of the manufacturer’s certificate of origin which was taken from Buddy White without authorization and accordingly, is stolen property”. The letter further advised:

“. . . We feel that your clients will be subject to punitive damages because they are exercising possession and control over certificate of ownership which has never been signed off by anyone and was not signed at the time that they apparently loaned some money to one Gary Hardy and were dealing with persons who had no authority bind the vehicle or the owner, Buddy White.”

Nueces Trust refused to return the Statement of Origin, and, in November, 1975 sent the Manufacturer’s Statement of Origin, an application for a Certificate of Title, and other documents pertinent thereto to the proper authorities in Austin, Texas. A “Texas Certificate of Title” was issued on November 3, 1975. It showed “E-Z Motor Co.” to be the owner of the Cadillac and that “Nueces Trust Co.” had a lien thereon. The Certificate of Title was in the possession of Nueces Trust at the time of trial.

We first dispose of the third point of error asserted by Nueces Trust that the award of $2,000.00 as actual damages to date of judgment is against the great weight and preponderance of the evidence. Evidence relating to actual damages is found in the testimony of White and Mr. Wendall Reach, a Bank Loan Officer for Citizens State Bank of Corpus Christi, Texas.

White testified that the Cadillac had a market value of about $12,000.00 when he bought it, and that in February, 1975, when Nueces Trust made the loan to Hardee, that it, due to depreciation, was worth about $11,000.00. He commenced discussions with Bailey Cadillac of Corpus Christi, Texas, in late July, 1975 about trading the car in on a new 1976 model and then learned that Nueces Trust had the Manufacturer’s Statement of Origin of the 1975 Cadillac in its possession. As a consequence, he was unable to make the trade. White estimated that a 1975 Cadillac, such as the one here involved, without any special consideration of mileage and use, would trade in on a similar automobile for $2,500.00 to $3,500.00 more in September, 1975 than it would at the time of trial (March, 1977). He further testified that the automobile in question depreciated $2,500.00 the first year and $3,000.00 the second year, so that at the end of two years from the date of acquisition, the car would be worth $5,500.00 less than its original purchase price • of $12,000.00. He summed up his loss by stating that he lost about $3,500.00 when it became impossible to trade in August, 1975. On cross examination, he placed his loss at varying amounts, ranging from $2,500.00 to $6,500.00. He further stated on cross examination that Bailey Cadillac, at the time in question, “offered to trade me a brand new ’76 for twenty-five hundred difference”.

Mr. Reach was called as a witness by Nueces Trust. He testified that an automo-' bile depreciates “by model year regardless of whether it has use on it or not”. He further testified that a 1975 Cadillac El Dorado depreciates about $1,000.00 the first year and about $1,500.00 the second year. Concerning the loan value of a 1975 Cadillac El Dorado that has 10,000 miles on it and one that has been driven 39,000 miles, he said that the difference would be “five to six hundred dollars” without taking the model year into consideration.

The actual damages ($2,000.00) awarded to date of judgment (May 6, 1977) were within the range shown in the record. It is not essential that the trier of fact conclude that one set of facts in evidence is absolutely correct and that another is totally incorrect. All that is required is sufficient certainty upon which the award of damages may be based. While some evi-dentiary basis for computation of damages must exist, the trier .of fact is not required to determine the amount of damages with mathematical exactness. See McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943); Arabesque Studios, Inc. v. Academy of Fine Arts International, Inc., 529 S.W.2d 564 (Tex.Civ.App.—Dallas 1975, no writ). There is ample evidence to support the award of $2,000.00 as actual damages to date of judgment. Such an award is not against the great weight and preponderance of the evidence. The third point is overruled.

The disposition of the second point of error asserted by Nueces Trust that the award of $2,000.00 as punitive damages was against the great weight and preponderance of the evidence requires a further discussion of the evidence. There is substantial evidence that White was the sole owner of E-Z Motor at all times pertinent to this appeal. The deposition testimony of Har-dee that he was a partner in E-Z Motor Company, even if admissible, created no more than a fact issue, which was resolved by the trial judge, trier of fact in this case, against Nueces Trust.

It was said in Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, 712 (1943):

“In order that a recovery of exemplary damages may be sustained, the plaintiff must show, not merely that the defendant could have or ought to have foreseen and prevented the loss or injury of which the plaintiff complains, but that he acted intentionally or wilfully, or with a degree of ‘gross negligence’ which approximates a fixed purpose to bring about the injury of which the plaintiff complains. .
******
“. . . Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.”

However, it is not necessary to prove an evil intent in order to recover exemplary or punitive damages for “a defendant may be compelled to respond in exemplary damages if the act causing actual damages is a wrongful act done intentionally in violation of the rights of the plaintiff”. Tennessee Gas Transmission Company v. Moorhead, 405 S.W.2d 81 (Tex.Civ.App.—Beaumont 1966, writ ref’d n. r. e.).

Unquestionably, Nueces Trust acted wrongfully and intentionally, and should have foreseen the loss of which White complains. Initially, Nueces Trust loaned a substantial amount of money to Gary Har-dee on the strength of Hardee’s representation that he was a partner in E-Z Motor Company and that he had authority to procure the loan and to mortgage the Cadillac. This was done without making further inquiry into the matter. There was no attempted verification of Hardee’s representation until problems arose with respect to paymént of the-note, and at a time when a proposed disposition of the Cadillac by White became imminent. Vinyard claimed that White told him over the phone in August, 1975, that he (White) had authorized Hardee to borrow money on the car. White flatly denied the making of this statement and stated that he informed Vinyard at that time that Hardee had never been a partner in E — Z Motor Company and that he (Hardee) had no authority to act in such capacity at the time in question. There is no showing that Nueces Trust did anything in a bona fide effort to determine whether or not White was, in fact, the sole owner of E-Z Motor Company and of the Cadillac in February, 1975, when the note was signed. There is no evidence that Nueces Trust requested that it be allowed to examine the books of E-Z Motor Company to determine the true ownership of the business and the automobile. White’s accountant testified that he filed the tax returns for the business and that the returns showed the business to be the sole proprietorship of White; he was not interviewed by Nueces Trust. The State Dealership Records reflect that White is the sole proprietor of E-Z Motor Company. The custodian of those records was not contacted by Nueces Trust. Instead, Nueces Trust doggedly stood its position, which at best was based on its own surmise that Hardee had proper authority to act in the matter. Nueces Trust, following the telephone conversation between Vinyard and White in August, 1975 and the receipt by its attorney of the letter from White’s attorney in late October, 1975, took steps in early November, 1975 to fortify its position by sending the Statement of Origin to the Cadillac to the Department of Public Safety in Austin and obtaining a Certificate of Title thereon which showed a lien in its favor.

It is undisputed that from the time of the telephone conversation between Vinyard and White about August 1,1975 to the time of trial that Nueces Trust made no attempt to learn the true nature of the business relationship between White and Hardee at the time the note and the accompanying security agreement were executed by Har-dee. The evidence, when viewed as a whole, shows that Nueces Trust was “consciously indifferent” to the rights of White and E-Z Motor Company in the premises. While good faith may generally protect one from assessment of punitive damages, this is not the case here. It is not shown that Nueces Trust had any reasonable ground for any belief that Hardee had authority in the matter.

Nueces Trust contends that it sought advice of counsel at all times pertinent to this lawsuit. It argues that acts pursuant to advice of counsel exempt it from liability for punitive damages. We do not agree. The applicable general rule is set out in 25 C.J.S. Damages § 123(7) p. 1146-7 (1966), as follows:

“. . . Advice of counsel, if in good faith, is proper for the consideration of the jury in connection with the question of exemplary damages, and the fact that defendant acted under advice of counsel may be sufficient to prevent an award of such damages. Advice of counsel is no defense, however, unless the advice was requested in good faith and on full disclosure, and was given in good faith with respect to a course involving legal questions and not questions of common morality; and the advice of counsel that defendant had the right to do the act complained of will not protect him from exemplary damages if it is done in a wanton and offensive manner, and in fact maliciously.”

See also Hannahs v. Noah, 83 S.D. 296, 158 N.W.2d 678 (1968); Perkins v. Stephens, 131 Mont. 138, 308 P.2d 620 (1957).

Assuming, arguendo, that it is proper to infer that Nueces Trust acted upon the advice of counsel in withholding from White the Certificate of Title free of encumbrance until the time of trial, nevertheless, that circumstance alone does not require a reversal in this ease of the trial court’s judgment with respect to the award of punitive damages. The fact that Nueces Trust may have acted on the advice of counsel may be considered as a circumstance tending to show good faith. See S. Jacobs, Bernheim & Co. v. Crum, 62 Tex. 401 (1884); 17 Tex.Jur.2d, Damages § 181 p. 249 (1960); Perkins v. Stephens, 131 Mont. 138, 308 P.2d 620 (1957). It is however, only one of the circumstances to be considered in the award of punitive damages; it does not establish a defense thereto as a matter of law. Even after the August 1, 1975 phone conversation between Vinyard and White, Nueces Trust continued to rely entirely upon the representations of Gary Hardee. Since it was then fully advised of White’s contentions, its acts thereafter were done in knowledge of the harm that would result to White from the inability to trade in the automobile at the time he desired to make the trade. Scalise v. National Utility Service, 120 F.2d 938 (5th Cir. 1941); Hannahs v. Noah, supra.

Upon a review of all the evidence in the record, we hold that there is a factually sufficient basis for an implied finding that Nueces Trust wrongfully withheld title in total disregard of White’s right to possession of evidence of ownership after it had been notified of White’s unqualified assertion of complete ownership of the Cadillac. The award of $2,000.00 as punitive damages is not against the great weight and preponderance of the evidence. The second point is overruled.

Nueces Trust, in its fourth point of error, contends that the trial court erred in awarding damages at the rate of $15.00 per day from date of judgment so long as the Certificate of Title to the Cadillac is withheld from White because such an award was “against the great weight and preponderance of the evidence”. The only argument relating to the point is that the trial court, in awarding such damages, committed error “for there is insufficient evidence” to support such an award.

The award is in the nature of exemplary or punitive damages. Nueces Trust was ordered to deliver to White the Certificate of Title to the Cadillac “with all liens or security interest shown in favor of said Nueces Trust Company properly released by an authorized officer of said defendant”. That portion of the judgmént wás not attacked in this appeal, and is now final. Nueces Trust, at all times, had the absolute power and right to terminate the accumulation of such damages by the simple expedient of releasing the lien which is shown in its favor on the face of the Certificate of Title and delivering the Certificate with lien released to White. It chose not to do so. No attack is made on the award as being excessive. Fundamental error does not appear in the record. We consider the point and argument strictly in accordance with the language used by Nueces Trust in its brief. There is ample evidence to support the award when challenged by the ground asserted in the fourth point of error. The award is not against the great weight and preponderance of the evidence. The fourth point is overruled.

White, in a cross point, contends that this Court should award “additional damages to the appellee Carlos T. White for attorney’s fees incurred in defending the appeal as an additional element of exemplary damages”. We do not agree. We have carefully considered the cross point and the argument thereunder. The cross point is overruled.

The judgment of the trial court is AFFIRMED.