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Appellants' requested jury issue on waiver addresses only alter ego and single business enterprise, does not specify any defendant, and defines only express waiver, an “intentional relinquishment of a known legal right.” See Sun Exploration & Prod. Appellants argue evidence other than the terms of paragraphs 7, 9, and 13 of the Fourth Amendment supported submission of a jury issue on waiver. courts.state.tx.us/historical/2008/nov/050721.pdf. Here, the jury found certain appellants responsible for Market/Ross's damages on three theories in addition to single business enterprise.2. In their reply brief, however, appellants argue their complaint applies to these latter theories as well.4. Any waiver by this provision, however, would be implied, not express, and appellants did not request a jury issue regarding implied waiver, as discussed below. Consistent with this provision, Market/Ross neither asserted a breach of contract claim against Dick's Dallas, nor sought recovery from Dick's Dallas through allegations of alter ego or single business enterprise. Paragraph 7 addresses only rights among Dick's Dallas, Dick's West End, and Market/Ross, and Market/Ross makes no claim inconsistent with the express provisions of paragraph 7. Appellants' issue is addressed to “Market Ross' alter-ego and single business enterprise questions to the jury,” and does not mention the sham to perpetrate a fraud and evasion of existing legal obligation questions. Equitable estoppel is established when (1) a false representation or concealment of material facts, (2) is made with knowledge, actual or constructive, of those facts, (3) with the intention that it should be acted upon, (4) to a party without knowledge or means of obtaining knowledge of the facts, (5) who detrimentally relies on the representations. Appellants argue this provision precludes Market/Ross from alleging any third party is responsible for the obligations of Dick's West End. Dick's Dallas assigns and transfers all rights as tenant to Dick's West End; Dick's West End assumes all obligations under the lease; and Market/Ross “shall look solely to New Tenant [Dick's West End] for the performance of the Tenant's obligations hereunder.” This paragraph provides Market/Ross will not look to Dick's Dallas for performance of the lease. W.2d 35, 37 (Tex.1987) (defining waiver as intentional relinquishment of known right or intentional conduct inconsistent with claiming that right). A holder of shares ․ or any affiliate thereof or of the corporation, shall be under no obligation to the corporation or to its obligees with respect to: ․(2) any contractual obligation of the corporation ․ on the basis that the holder, owner, subscriber, or affiliate is or was the alter ego of the corporation, or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, or other similar theory, unless the obligee demonstrates that the holder, owner, subscriber, or affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, owner, subscriber, or affiliate ․3. We acknowledge that courts have sometimes used the elements of common law fraud by misrepresentation or omission in reviewing the sufficiency of the evidence to support a finding of alter ego. In paragraph 13, Market/Ross agreed there were no verbal or written agreements or promises other than those stated in the original lease or the Fourth Amendment. Paragraph 7, entitled “Assignment of Lease,” provides that Market/Ross consents to the assignment of the lease from Dick's Dallas to Dick's West End. 4 of the jury charge, the trial judge instructed the jury that “ ‘actual fraud’ involves conduct involving either dishonesty of purpose or intent to deceive.” This instruction is included in the comments to the pattern jury charges for piercing the corporate veil, and is attributed to the opinion in Castleberry v. However, the evidence showed Dick's West End had no assets other than the lease, so it is unclear what damage Dick's West End might have suffered from the alleged fraud. In addition, a court may not strike down jury answers on the ground of conflict if there is any reasonable basis upon which they can be reconciled. The jury's finding in Question 9 that Dick's Texas, Schiff, and Dick's Holding Company used Dick's West End as a means of evading an existing legal obligation for the purpose of perpetrating an actual fraud, for example, is consistent with Market/Ross's contention that appellants intended to circumvent the 1% provision, and is also consistent with the jury's finding that Dick's West End did not pay Market/Ross 1% of its gross sales when required to do so by the lease. Appellants also contend there was no segregation of the evidence as to each individual appellant. In their fourth issue, appellants contend Market/Ross waived “its alter-ego and single business enterprise claims” by failing to request instructions or definitions that properly defined “actual fraud,” because article 2.21(A)(2) requires proof of “fraud by misrepresentation, or fraud by omission.” In Instruction No. See, e.g., State Bar of Tex., Texas Pattern Jury Charges, Business, Consumer, Insurance, Employment PJC 108.2 cmt. The supreme court recently discussed Castleberry and article 2.21 in SSP Partners, noting, “[w]e have held that the limitation on liability afforded by the corporate structure can be ignored only ‘when the corporate form has been used as part of a basically unfair device to achieve an inequitable result.’ ” SSP Partners, 52 Tex. Two essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay. As explained by appellants, “the thrust of the counterclaim is that Market/Ross represented in the Fourth Amendment that there were no oral promises which induced the Fourth Amendment when, in fact, it now claims that there were such oral promises.” Appellants alleged they were fraudulently induced into executing the Fourth Amendment, and as a result, they “forewent opportunities to pursue better locations for their Dallas restaurant operations than the premises leased from Market/Ross, and thereby suffered damages.” A directed verdict is proper if the evidence offered on a cause of action is insufficient to raise an issue of fact. Appellants contend this evidence raises a fact issue on their fraud counterclaim. Appellants' counterclaim was based on representations made in the Fourth Amendment, which would indicate Dick's West End, the party to the Fourth Amendment, would have been the party suffering the damage. App.-Fort Worth 2005, no pet.) (complaint of conflicting jury findings not preserved for review where appellants did not raise contention before jury discharged). Questions 7 through 10 inquired whether Dick's Texas, Schiff, or Dick's Holding Company were responsible for Market/Ross's damages through theories of corporate veil-piercing. Segregation of Attorney's Fees In their seventh issue, appellants complain the trial judge erred by failing to require Market/Ross to allocate its evidence of attorney's fees between its contract claims and its veil-piercing theories. 274 (party objecting to charge must point out distinctly the objectionable matter and grounds of objection; complaint waived unless specifically included in objections); see also Green Int'l, Inc.
In addition, article 2.21 requires proof that the “holder, owner, subscriber, or affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, owner, subscriber, or affiliate.” Tex. These facts and suggested conclusions are not evidence of intentional relinquishment of a known right by Market/Ross. (Dick's West End), Dick's Last Resort of Dallas, Inc. (Dick's Texas), Dick's Last Resort of Chicago, Inc. (Dick's Holding Company), and Steven Schiff appeal the trial court's judgment on a jury verdict in favor of appellees Market/Ross, Ltd. Appellants also contend there is an irreconcilable conflict in the jury's answers, and allege the trial judge erred by failing to require that appellees allocate their evidence of attorney's fees. Background In 1986, Market/Ross and a predecessor of Dick's Dallas entered into a lease agreement to operate a restaurant in a building owned by Market/Ross. Market/Ross sued to recover amounts it claims it is owed under these agreements. OPINIONAppellants Dick's Last Resort of the West End, Inc. In seven issues, appellants allege error in the submission of alter ego and single business enterprise issues to the jury, and contend the trial judge erred by granting Market/Ross's motion for directed verdict on appellants' counterclaims and refusing to submit appellants' affirmative defenses to the jury. Here, Market/Ross claims Dick's West End and Dick's Chicago breached a written lease agreement and a guaranty. Actual fraud Appellants' first, fourth, and fifth issues are premised on the contention that “actual fraud” for purposes of piercing the corporate veil must be proven by obtaining findings on the traditional elements of common law fraud by misrepresentation or omission. We disagree and conclude the applicable standard, set forth in article 2.21 of the Texas Business Corporation Act, was properly submitted to the jury.