TELERESOURCE CORPORATION, TELERESOURCE GROUP, INC, and THOMAS A. D'AMICO, Appellants v. FRONTIER COMPUTER CORPORATION, RANDALL W. STONE, AND JOHN D. BURLEW, Appellees

REVERSED IN PART, REMANDED IN PART, AFFIRMED IN PART; Opinion Filed June 22, 2000
S
In The
Court of Appeals
                        
Fifth District of Texas at Dallas
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No. 05-99-01134-CV
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TELERESOURCE CORPORATION, TELERESOURCE GROUP, INC, and
THOMAS A. D'AMICO, Appellants
 
V.
FRONTIER COMPUTER CORPORATION, RANDALL W. STONE, AND JOHN D. BURLEW, Appellees
 
.............................................................
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 95-04610-F
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OPINION
Before Justices Kinkeade, Roach, and Bridges
Opinion By Justice Roach
        Following a bifurcated proceeding where the liability issues were tried to a jury and a nonjury trial was held on the amount of damages, appellants Teleresource Group, Inc. and Thomas A. D'Amico appeal the trial court's final judgment that they take nothing on their affirmative claims of breach of contract, tortious interference with contractual relations, and breach of fiduciary duty. Additionally, appellants D'Amico and Teleresource Corporation challenge the trial court's award of actual and punitive damages against them on Frontier Computer Corporation's counterclaim for tortious interference with actual and prospective contractual relations. We affirm the trial court's judgment with respect to appellants' affirmative claims. However, because we conclude the evidence is insufficient to support the amount of the trial court's damage award on Frontier's tortious interference claims, we reverse and remand these causes of action to the trial court for a new trial.
I. Factual Background
 
        This dispute involves the business dealings among several telecommunication companies and their principals. Despite attempts to combine the efforts of these companies through various written documents and other agreements, the relationship among the entities and their principals eventually soured, resulting in this lawsuit.
The record reveals that Frontier Computer Corporation sells computer-based telephone equipment. At the time relevant to this appeal, Randy Stone and Richard Burlew were equal shareholders in Frontier. Anthony & Associates, Inc. sold telemanagement and related services. FN:1 Anthony D'Amico and Tim Grossenbacher shared ownership of Anthony & Associates. Teleresource Group, Inc. negotiated and held bulk contracts for long distance and operator services for Anthony & Associates's clients. D'Amico was president and sole shareholder of Teleresource Group.
        In late 1992 or early 1993, D'Amico met Randy Stone. D'Amico and Stone eventually decided to combine the efforts of Frontier and Teleresource Group in a sales and marketing arrangement. In August 1993, Frontier and Teleresource Group entered into a “Sales Compensation Agreement” where Frontier agreed to pay one half of the salary and costs of Teleresource Group's sole paid employee and a seven and one-half percent commission on all Frontier equipment sales made through the efforts of Teleresource Group or its employees. In exchange, Teleresource Group promised to use its best efforts to sell Frontier equipment to its clients and assist in the installation of Frontier equipment sold through Teleresource Group.
        Approximately fifteen months later, on November 22, 1994, Frontier and Teleresource Group entered into a “Joint Venture/Shareholders Agreement for Teleresource Corporation.” Under this agreement, Frontier and Teleresource were to be equal shareholders in a new company named “Teleresource Corporation”(hereinafter TRC). According to the agreement, TRC would serve as a single source provider for all telecommunications services and products provided to the customers of the venture. Although TRC was incorporated about one week before the parties signed the joint venture shareholders' agreement, no bylaws were ever adopted for the corporation and the TRC board of directors never held its first meeting or signed a unanimous consent in lieu thereof. Consequently, the joint venture corporation never commenced business.
        After the joint venture shareholders agreement was signed, Frontier entered into a contract with Phone Partners, L.C. to install phone systems and provide call accounting, billing, and related services to two College Station apartment complexes. Charles Laningham held an ownership interest in these complexes and their management company. He created Phone Partners to provide tenants (mostly college students) an alternative to traditional phone service. D'Amico later became involved in the College Station project, and Anthony & Associates, more particularly Grossenbacher, began to develop a software program to do the billing for the project. Stone, D'Amico, and Burlew ultimately agreed that D'Amico would purchase John Burlew's Frontier stock so that Burlew could retire. In anticipation of the stock transfer, D'Amico began to manage Frontier's Dallas office. Frontier and Teleresource Group also executed a five-year commercial lease for an office building on Viceroy Drive in Dallas, Texas, where Frontier, Teleresource Group, and Anthony & Associates would share office space and work together.         
        The stock transfer from Burlew to D'Amico, scheduled to close on April 28, 1995, was never completed. The facts surrounding the failure to complete the stock transfer were hotly contested at trial. What is clear from the record is that the relationship among these corporations and their principals quickly deteriorated after April 28, and on May 1 or May 2, D'Amico was barred from Frontier's office and terminated from his position with Frontier.
        A few days later, D'Amico and Grossenbacher met with Laningham to discuss the College Station project. D'Amico then sent a memo to Stone detailing the meeting and indicating “we plan to take no further action on this matter until all other issues are resolved.” About four days later, D'Amico sent a letter to Laningham stating that neither he, Anthony & Associates, Teleresource Group., nor Teleresource Corporation would have any further involvement in the College Station project in conjunction with Frontier.
        Frontier asserts Anthony & Associates and D'Amico refused to provide Frontier with the billing program for College Station project even though Frontier offered to pay for the program. Frontier also claims that D'Amico and Anthony & Associates refused to return data Frontier needed to generate the billing statements. Additionally, Frontier asserts Anthony & Associates disconnected the customer service number they were manning for the College Station project without notifying Frontier. Frontier never moved into the Viceroy building.         On May 11, 1995, Teleresource Group and D'Amico sued Frontier, Stone, and Burlew seeking declaratory and injunctive relief. The suit was later amended to include claims for compensatory and punitive damages based on breach of contract, breach of fiduciary duty, and tortious interference with contractual relations. D'Amico and Teleresource Group alleged Frontier breached the sales compensation agreement by failing to pay commissions owed and breached the joint venture shareholders agreement by not signing certain documents necessary for the joint venture corporation to operate. They also claimed Frontier breached its fiduciary duty to Teleresource Group that was owed pursuant to the joint venture shareholders agreement. Frontier, Stone, and Burlew filed a counterclaim against D'Amico and Anthony & Associates for tortious interference with actual and prospective contractual relations.
        The jury failed to find that Frontier breached the sales compensation agreement or the joint venture shareholders agreement. They also failed to find in favor of D'Amico and Teleresource Group on their claim against Stone for tortious interference. Additionally, the jury failed to find a confidential or fiduciary relationship between Frontier and Teleresource Group. With respect to Frontier's counterclaim, the jury found that both Anthony & Associates and D'Amico wrongfully interfered with Frontier's existing contract with Phone Partners, as well as prospective contractual relations with Phone Partners or Charles Laningham. The jury further found that the harm to Frontier from this wrongful interference resulted from malice.
        In light of the jury's verdict, the trial court held a bench trial to determine the amount of actual and punitive damages to award on Frontier's tortious interference claims. At the conclusion of the bench trial, the trial court signed a final judgment that D'Amico and Teleresource Group take nothing on their affirmative claims and awarded Frontier $120,398.57 in actual damages and $150,000 in punitive damages. This appeal followed.
         Under the heading “Issues Presented,” appellants' brief is divided into seven sections and identifies twenty-six questions to be resolved. However, appellants' brief presented no discussion or argument with respect to several of these questions, including 2(c); 3(a), (b) and (c); 4(a) and (b). We therefore address only those issues which have been identified and properly briefed in the argument portion of appellants' brief and consider the other issues waived. See Kang v. Hyundai Corp., 992 S.W.2d 499, 503 (Tex. App._Dallas, no pet.); Tex. R. App. P. 38.1(h). We first address the issues relating to appellants' affirmative claims.
II. Appellants' Affirmative claims
 
        When a party attacks the sufficiency of the evidence to support a finding on which it had the burden of proof, it must establish either (1) the contrary position was establish as matter of law, or (2) the finding is against the great weight and preponderance of the evidence. See Rapp Collins Worldwide, Inc., v. Mohr, 982 S.W.2d 478, 482 (Tex. App._Dallas 1998, no pet.). In examining a matter of law claim, we first examine the record for evidence supporting the finding. Id. If we find no evidence, we then review the record to determine whether the contrary position is proven as a matter of law. Id. We will reverse a finding as against the great weight and preponderance of the evidence only if the finding is so contrary to the overwhelming weight of all relevant evidence so as to be clearly wrong and unjust. Id.
a. Breach of Fiduciary Duty:
 
        Appellants initially challenge the jury's failure to find a fiduciary or confidential relationship between Frontier and Teleresource Group under the joint venture shareholders agreement. They contend the nature and express language of the agreement created, as a matter of law, a confidential or fiduciary relationship between Frontier and Teleresource Group. FN:2
        A fiduciary duty is one that, at a minimum, imposes upon the fiduciary a duty of good faith and fair dealing and often requires the fiduciary to place the interest of the other party before his own. See Crim Truck & Tractor v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992). Certain formal legal relationships, such as attorney-client, trustee-beneficiary, agent-principal, partners, and joint venturers, create a fiduciary duty as a matter of law. Casteel v. Crown Life Ins. Co., 3 S.W.3d 582, 590 (Tex. App._Austin 1997), aff'd in part and rev'd in part, 43 Tex. Sup. Ct. J. 348, 2000 WL 72142 (January 27, 2000). However, Texas courts have recognized that certain informal or “confidential relationships” may also give rise to a fiduciary duty. See Crim Truck & Tractor, 823 S.W.2d at 594. A confidential relationship may occur when one person trusts in and relies upon another, whether in a moral, social, domestic, or personal context, and “'in which influence has been acquired and abused, in which confidence has been reposed and betrayed.'” Id. (citations omitted). The existence of a confidential or fiduciary relationship is generally a question of fact. See Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 675 (Tex. App._Houston [1st Dist.] 1996, no writ). However, when the issue is whether there is no evidence or conclusive evidence to establish the relationship, it becomes a question of law. Id.
        Appellants contend the joint venture shareholders agreement conclusively establishes that Frontier owed Teleresource Group a fiduciary duty. In support of their position, appellants rely on language in the agreement stating the parties “are more than mere Shareholders in this Venture and each party shall owe the other party the duty of utmost good faith and fair dealing as if they were partners of a general partnership.” We do not agree that this language creates a fiduciary or confidential relationship between the parties as a matter of law. The duty of good faith and fair dealing is merely a part of the obligation owed by a fiduciary. See Crim Truck & Tractor, 823 S.W.2d at 594. Appellants have cited no authority, and we have found none, that such an extraordinary duty can be created as a matter of law merely by inserting the above language into an agreement. A fiduciary duty arises from the relationship of the parties and not just from the contract. See Kline v. 0'Quinn, 874 S.W.2d 776, 786 (Tex. App._Houston [14th Dist] 1994, writ denied), cert. denied, 515 U.S. 1142 (1995).
        Appellants also claim that the joint venture shareholders agreement established Frontier and Teleresource Group as joint venturers and, consequently, each owed the other a fiduciary duty as a matter of law. Appellants did not attack the jury's findings on this basis in the trial court. Assuming that appellants have preserved this issue for review, however, we are not satisfied that the mere signing of the joint venture shareholders agreement conclusively established Frontier and Teleresource Group as joint venturers. Frontier maintains this document merely established Frontier and Teleresource Group as co-shareholders in a joint venture corporation which never began to operate as an independent entity because the parties could never agree on bylaws, other corporate authority documents, and how the joint venture corporation was actually going to operate.
        Appellants cite Maykus v. First City Realty & Fin. Corp., 518 S.W.2d 887 (Tex. App._Dallas 1974, no writ), for the proposition that where the parties' intent to create a joint venture relationship is express within the four corners of a written agreement, a joint venture exists as a matter of law. Appellants' reliance on Maykus is misplaced. In Maykus, the court of appeals held a confidential relationship existed between the parties as a matter of law because their letter of intent contained a provision concerning formation of a partnership for acquiring and developing certain property and because Maykus agreed to act as trustee for First City in acquiring that property. Id. at 892. Maykus, later purchased the subject land and failed to follow through with the remainder of the agreement. Id. at 889. He then claimed he did not breach a fiduciary duty to First City because the partnership for the joint venture was never actually formed. Id. at 891. The court disagreed and held that confidential relationship existed creating a fiduciary duty based on Maykus's agreement to form a partnership and undertaking to act as trustee in acquiring the property. Id. at 892.         Unlike the letter of intent in Maykus, the agreement between Frontier and Teleresource Group merely devised the framework in which their joint venture would operate. There is no indication that the agreement established Frontier and Teleresource as joint venturers absent the ability to conduct business through the entity through which the joint venture would operate. Having concluded appellants failed to establish the existence of a fiduciary or confidential relationship between Frontier and Teleresource Group as a matter of law, we resolve this issue against them. Our disposition of this issue makes it unnecessary to address the issues involving the alleged breach of a fiduciary duty.
b. Breach of Contract under Joint Venture Shareholders Agreement:
 
        Appellants next complain of the jury's failure to find that Frontier breached the joint venture shareholders agreement. They argue that Stone's admitted failure to sign the bylaws and unanimous consent documents necessary for the new joint venture corporation to operate requires reversal of the jury's failure to find in the affirmative on this breach of contract issue.
        Our review of the record indicates the issue regarding whether Frontier breached the joint venture shareholders agreement was hotly contested. Stone testified Frontier did not breach the agreement because certain control and operational issues needed to be addressed before the joint venture corporation could conduct business and these issues were never resolved. Frontier further contends that because the agreement did not state a specific time for performance, the jury was free to find that a reasonable time for creating the joint venture corporation had not expired before the agreement was replaced by the stock sale agreement. Because we conclude Frontier's breach was not conclusively established, and the jury's failure to find a breach was not against the great weight and preponderance of the evidence, we will not disturb the jury's finding on this issue.
c. Breach of Contract under Sales Compensation Agreement:
 
        Appellants also attack the jury's failure to find a breach of the sales compensation agreement based on Frontier's alleged failure to pay Teleresource Group its commission on equipment Frontier sold to five hotels. In the sales compensation agreement, Frontier promised to pay a commission to Teleresource Group of seven and one-half percent on all Frontier equipment sales made “through the efforts of [Teleresource Group] or its employees beyond the effective date of this agreement.” At trial, Frontier did not dispute it sold equipment to the five hotels identified by appellants. Rather, Stone testified no commissions were owed because either (1) the parties agreed prior to the sale it would not be subject to a commission under the sales compensation agreement, (2) the sales were not made through the efforts of Teleresource Group or its employees, or (3) the commission was actually paid. After reviewing the conflicting evidence on whether such commissions were owed or paid, we cannot conclude that the jury's response to this question was not supported by legally or factually sufficient evidence.
 
III. Frontier's Counterclaim for Tortious Interference
 
        Frontier's counterclaim for tortious interference is based on the actions of D'Amico and Anthony & Associates in connection with Frontier's relationship with Charles Laningham and Phone Partners. FN:3 According to Frontier, its contract with Phone Partners required billing and other services that Anthony & Associates committed to provide for the College Station project. Stone testified that after the stock transfer from Burlew to D'Amico failed to occur and the relationship between Stone and D'Amico deteriorated, Anthony & Associates and D'Amico refused to provide the promised services on Frontier's behalf and also made it impossible for Frontier to do so by withholding from Frontier necessary data that D'Amico and Anthony & Associates had no right to keep.
        Stone testified Laningham terminated Phone Partners's existing contract with Frontier as a direct result of D'Amico and Anthony and Associates's wrongful interference and claimed Frontier lost prospective contracts for additional apartment complexes because of D'Amico and Anthony & Associates's wrongful interference.
        The jury found in favor of Frontier on its counterclaim and also found that D'Amico and Anthony & Associates acted with malice. A bench trial was then held on the issues of damages. The trial court found that Frontier sustained damage in the amount of $120,398.57 as a result of D'Amico and Anthony & Associates's tortious interference with existing and prospective contractual relations. The trial court award a lump sum for all damages and did not specify what portion was for losses incurred from the existing contract and what damages were awarded for prospective contracts. Additionally, the award did not specify the elements of damages the trial court considered in arriving at its damage figure. The trial court also awarded Frontier $150,000 in punitive damages. The actual and punitive damage awards were entered against D'Amico and Anthony & Associates jointly and severally. Appellants attack the jury's liability and malice findings, as well as the trial court's actual and punitive damage awards.
        Appellants first challenge the jury's findings that D'Amico and Anthony & Associates tortiously interfered with Frontier's existing and prospective contractual relations, arguing: (1) the jury questions on these issues constituted an improper comment on the weight of the evidence; (2) there was no evidence of prospective contracts with Laningham or Phone Partners; (3) Frontier had no reasonable expectation of contractual relations with any business in College Station; (4) as an employee or agent of Frontier, they could not interfere with Frontier's contracts as matter of law; (5) Phone Partners's contractual right to terminate the agreement on thirty days' notice precluded the jury's tortious interference finding; and (6) there was no evidence that D'Amico or Anthony & Associates intended to interfere with Frontier's existing or prospective agreement.         Initially, appellants complain the trial court improperly commented on the weight of the evidence when it asked whether D'Amico or Anthony & Associates “intentionally interfered with Frontier's contract with Phone Partners” and whether D'Amico or Anthony & Associates “wrongfully interfered with any of Frontier's prospective contractual relations with Phone Partners or Charles Laningham.” Appellants claim these questions, as phrased, improperly instructed the jury that Frontier had existing and prospective contracts with Phone Partners and Laningham, which was an element of Frontier's cause of action that appellants disputed. Frontier claims that appellants have waived their complaints about these questions because they did not specifically object to the submission of these questions to the jury. Our review of the record reveals that appellants did indeed object to the wording of each of these questions as an improper comment on the weight of the evidence for the same reasons they now urge on appeal. We therefore address the merits of appellants' contentions on this issue.
        Jury questions that assume the existence of material disputed facts are improper as comments on the weight of the evidence and may constitute reversible error if they caused rendition of an improper verdict. See Mooney Aircraft Corp. v. Altman, 772 S.W.2d 540, 541-42 (Tex. App._Dallas, 1989, writ denied). In determining whether a question contains an impermissible comment on the weight of the evidence, we examine the trial court's charge in its entirety. Id. at 542.
        Appellants contend that because Frontier did not provide an authenticated copy of a contract with Phone Partners and because D'Amico and Anthony & Associates disputed whether Frontier had any prospective contractual relations, the phrasing of the questions improperly led the jury to assume that Frontier already had a contract with Phone Partners and prospects of additional contracts with Phone Partners or Laningham. We do not agree.
        Initially, we note there was considerable testimony from Stone and D'Amico as to the existing contract between Frontier and Phone Partners. Additionally, the trial court admitted a copy of the Frontier/Phone Partners contract over appellants' authentication objection FN:4 . Appellants have not pointed to any evidence suggesting the Frontier/Phone Partner's contract did not exist. Therefore, even assuming the jury question was not properly phrased, appellants have not shown how this error led to the rendition of an improper verdict.
        We reach a similar conclusion with respect to the questions relating to Frontier's prospective contractual relations with Phone Partners. Frontier provided the deposition testimony of Charles Ronshausen, a Frontier sales consultant who indicated that Frontier performed on-site surveys and made preliminary proposals for additional apartment complexes. Frontier also introduced into evidence a March 13, 1995 fax to Laningham containing cost estimates for three of these additional apartment complexes. This evidence was undisputed. Moreover, underneath the jury questions inquiring whether D'Amico or Anthony & Associates “wrongfully interfered with any of Frontier's prospective contractual relations,” the following language appeared:
        You are instructed that wrongful interference occurred if:
    A. There was a reasonable probability that Frontier would have entered into contractual relations and
 
    B. [Anthony & Associates or D'Amico] intentionally prevented the contractual relations from occurring with the purpose of harming Frontier.
 
        Reading the questions and instructions in their entirety, the jury could only have answered the questions in the affirmative if it found there was a reasonable probability that Frontier would have entered into additional contracts with Phone Partners or Laningham. Based on the record before us, we find no reversible error in the phrasing of the jury questions addressing Frontier's existing contract or prospective contracts with Phone Partners. We therefore resolve this issue against the appellants.
        Appellants also challenge the legal sufficiency of the jury's finding that D'Amico and Anthony and Associates tortiously interfered with Frontier's prospective contractual relations with Laningham or Phone Partners. Appellants argue there is no evidence that Frontier had any prospective contracts with Laningham or Phone Partners or that there was any reasonable probability Frontier would have entered into a contract for any additional apartment complexes. We do not agree. Ronshausen testified that Phone Partners was the company Laningham had created to purchase and operate phone systems in apartment complexes. Phone Partners had contracted with Frontier for phone systems in two College Station apartment complexes in which Laningham had an ownership interest. Ronshausen also testified that Langingham, through Phone Partners, was interested in contracting with Frontier for telephone equipment and services for other apartment complexes. Contrary to appellants' assertion, Ronshausen's testimony did not indicate the prospective contracts would be with the owners of the apartment complexes.
        We likewise reject appellants' argument that Frontier had no reasonable expectation of prospective contractual relations with any business in College Station. Appellants contend additional contracts were unlikely because of problems with the phone system. FN:5 Frontier provided testimony, however, that the problems with the systems were minor and were being repaired. Stone denied that the system did not have the capabilities that it was supposed to have. Based on the record before us, the issue of whether Frontier had a reasonable probability of realizing additional contracts with Phone Partners was an issue for the jury. Ronshausen's testimony with respect to the amount and nature of the work Frontier had performed in connection with the other apartment complexes provided some basis for the jury to find it was probable that Phone Partners would have entered into another contract with Frontier.
        Appellants also contend that as an agent or employee of Frontier, neither D'Amico nor Anthony & Associates could be liable for tortious interference with Frontier's contract with Phone Partners as a matter of law. We acknowledge the general rule that a party cannot tortiously interfere with its own contract. See Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995). However, the issue of whether D'Amico and Anthony & Associates were acting as employees or agents of Frontier at the time of the alleged wrongful interference was hotly disputed. Stone testified that shortly after the stock transfer failed to close, D'Amico was removed from his position with Frontier and had no authority to contact Laningham regarding the College Station project. There is also no evidence in the record to suggest that Anthony & Associates was acting as an employee or agent of Frontier when it refused to provide the billing software or data for the College Station project. We will therefore not disturb the jury's tortious interference finding on this basis.
        Relying primarily on ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997), appellants next argue that D'Amico and Anthony Associates could not be liable for tortious interference as a matter of law because Phone Partners had a contractual right to terminate its agreement with Frontier at any time upon thirty days' notice. The contract provision upon which appellants rely was contained in Frontier's maintenance agreement with Phone Partners. This agreement was not admitted into evidence at the liability trial. Without this agreement, appellants have no factual basis to support their argument under ACS Investors, Inc. FN:6
        Finally, appellants argue there was no evidence that D'Amico or Anthony & Associates intended to interfere with Frontier's existing or prospective contracts with Phone Partners. We disagree. The evidence suggested that D'Amico and Anthony & Associates were aware that the phone bills for the College Station project had to be mailed within a certain time period, yet refused to provide the billing software or the required raw data to Frontier so that this could be accomplished. There was also evidence that the customer service line for the project was terminated without notice to Frontier. Stone testified that after the stock transfer fell through, D'Amico threatened he would buy Frontier “at the courthouse steps.” Appellants' contention that there was no evidence that D'Amico or Anthony & Associates were aware of other potential business opportunities through Laningham or Phone Partners is directly controverted by D'Amico's May 5, 1995 letter to Stone acknowledging this business potential. Although appellants attempt to characterize the actions of D'Amico and Anthony & Associates as purely defensive in nature or an attempt to assist Frontier with this project, the jury could have viewed these actions as deliberate attempts to prevent Frontier from fulfilling its contractual obligations to Phone Partners and destroying Frontier's relationship with Laningham. We conclude none of appellants' issues with respect to the jury findings of tortious interference present reversible error. Having resolved all of appellants' issues regarding the liability phase of the trial, we now turn to the issues involving damages.
Actual Damages
 
        Appellants also assert the evidence was legally and factually insufficient to support the trial court's damage award of $120,398.57. Specifically, appellants claim that Frontier did not establish its lost profits involving additional apartment complexes by competent evidence and reasonable certainty because Frontier's calculations were based on unrealistic and speculative assumptions such as (1) Frontier would win the bids for all additional apartment complexes, (2) each contract would have a ten- to fifteen-year duration, and (3) all tenants would participate in the program. Additionally, appellants contend the trial court's actual damage award was inconsistent with the evidence and cannot be calculated totaling any combination of Frontier's itemized damage figures. They argue Frontier's evidence did not permit the court to make its own calculations and award a lesser amount than that suggested by the figures offered by Frontier. We agree that the evidence is insufficient to support the amount of the trial court's actual damage award.
        To recover lost profits, Frontier had to demonstrate through competent evidence the amount of the loss with reasonable certainty. See Texas Instruments v. Teletron Energy Mgt. Inc, 877 S.W.2d 276, 278-79 (Tex. 1994). Although lost profits need not be susceptible to exact calculation, they must be based on objective facts, figures, or data. See Interceramic, Inc. v. South Orient R.R. Co., Ltd., 999 S.W.2d 920, 929 (Tex.App._Texarkana 1999, pet. denied). Profits based on chancy business opportunities, uncertain or changing market conditions, the promotion of untested products, unknown or unviable markets, or the success of a new and unproven enterprise that make a business venture risky prospectively, will also prevent the recovery of lost profits retrospectively. Texas Instruments, 977 S.W.2d at 279.
        At the damages trial, Frontier presented evidence that Phone Partners still owed $29,175.15 under the November 1994 contract for the equipment Frontier had already installed in two College Station apartment complexes. Stone also testified that Phone Partners owed an additional $9,574.11 in unpaid invoices under that contract as of June 1995.
        The Phone Partners's contract also provided a monthly support services fee of $2,000 for the first year of the contract which increased to $3,500 per month during subsequent years the contract was in effect. The contract provided long distance services to the subscribers through Westinghouse Communications. Stone testified and provided documentation that Frontier was entitled to a commission of $0.0125 on each minute of long distance used. Additionally, Stone testified that Frontier lost $90,300 in management fees from August 1995 to February 1999 and expected to lose another $111,034.83 (present value) in management fees from March 1999 to December 2004. He stated he was entitled to long distance commissions from August 1995 to February 1999 totaling $27,090 and estimated the present value of future long distance commissions from March 1999 to December 2004 at $33,310.45. Finally, Stone indicated lost profits of $58,886.17 for cable billing services Frontier was going to perform for Phone Partners from January 1996 through December 2004.
        From these figures, Stone calculated the present value of Frontier's total net profit loss on the existing Phone Partners contract to be $335,621 which he then divided by the total number of apartment units in the two complexes to reach a per unit net profit loss of $1,079.16. To calculate his prospective contract damages, Stone simply multiplied this per unit figure by the total number of units in six additional apartment complexes for which he claimed he would have received contracts, and arrived at a net loss profit figure of $1,128,806.
        Despite the mathematical precision with which Stone calculated Frontier's damages, we conclude there is little, if any, factual basis for the assumptions underlying many of his figures. For example, although Stone and Rosenhausen testified Frontier's contract with Phone Partners would have continued for a period of ten to fifteen years, the contract was not for a specific term of years. Indeed, the trial testimony indicated that this was the first contract Frontier had entered into for support services. Moreover, it appeared that this was a new business venture for Laningham as well. The estimates were not based on the realities of the Phone Partners' past or present business but rather very optimistic assumptions about the success of the existing operation and potential expansion. In contrast, Laningham testified Phone Partners was losing money on this business venture, and did not have enough subscribers to continue the project, irrespective of the billing problems.
        Frontier's evidence on lost profits for the prospective contracts, was also based on assumptions that Frontier would have won contracts for six additional complexes similar to their existing contract with Phone Partners and every unit in each complex would utilize the system. Unfortunately, these assumptions had no basis in fact. Certainly the number of subscribers currently involved with their initial contract with Phone Partners did not justify these assumptions. There was testimony from Laningham that there were between fifty to one hundred initial subscribers to the system. On cross-examination, Laningham admitted that Phone Partners had signed up subscribers for the fall semester. He also stated that an estimate that he signed up eighty fall subscribers would not have been unreasonable. Laningham, testified, however, that problems with the system itself and the fact the business was not making money caused him to terminate the contract before the first year expired. He admitted he still owed money under the contract for the installation.
        Although Ronhausen testified his current company had one thousand sixty units under contract structured similarly to Frontier's contract with Phone Partners and another twelve hundred they were “working,” these contracts were not in evidence and Ronhausen did not testify as to the amount of profit his company made on these contracts.
        Based on the evidence in the record, we conclude that Frontier's damage evidence on lost profits was speculative and, therefore, legally insufficient to support recovery of lost profits. However, we cannot conclude that all of Frontier's damage evidence is speculative because there is uncontroverted evidence that Phone Partners owed Frontier money under the contract for services that Frontier had already performed. Although the evidence was legally and factually sufficient to support some damage award, it does not support the specific award the trial court made. However, because the trial court awarded a lump sum damages, we have no method to gauge how much of its award was based on lost profits versus other elements of damages. Under these circumstances, we conclude justice requires a remand on these claims. See Tex. R. App. P. 43.3(b). Our disposition of this issue makes it unnecessary to address appellants' argument that the trial court abused its discretion in refusing to resolve the discovery dispute on damages prior to the bench trial. In any event, to preserve a complaint for appellate review, a party must obtain a ruling or object to the court's refusal to rule. See Tex. R. App. P. 52(a). Because appellants did not object to the court's refusal to rule on their motions regarding the discovery dispute, they have failed to preserve this issue for review. See Goodchild v. Bombardier-Rotax GMBH Motorenfabrik, 979 S.W.2d 1, 6 (Tex. App. Houst. [14th Dist.] 1998, pet. denied)(op. on reh'g).
        Punitive Damages
 
        Appellants present several arguments regarding the trial court's punitive damage award. Among other things, they assert: (1) there is no evidence to support the type of aggravated conduct necessary for punitive damages, (2) section 41.006 of the Civil Practice and Remedies Code prohibits a joint and several punitive damage award, (3) the punitive damage award was not supported by factually sufficient evidence and (4) the punitive damage award is excessive under the state and federal constitutions. FN:7 Alternatively, appellants request this Court to suggest a remittitur of the punitive damage award.
        We first address appellants' claim that there is no evidence of “aggravated conduct” to support a punitive damage award. We view this argument as a legal sufficiency attack on the jury's malice finding. The evidence that D'Amico and Grossenbacher met with Laningham to discuss the College Station project after D'Amico was terminated from his position with Frontier, refused to provide or even sell Frontier the billing program that Grossenbacher developed to do the billing, refused to turn over Frontier's data, terminated Frontier's customer service line without notice, combined with D'Amico's statement that he would buy Frontier at the courthouse steps, was some evidence to support the jury's findings of malice.
        We are likewise unpersuaded by appellants' argument that the trial court's award of punitive damages entered against D'Amico and Anthony & Associates, jointly and severally, violated section 41.006 of the Texas Civil Practice and Remedies Code. Because Frontier's counterclaim was an intentional tort, section 41.006 does not apply. See Bradford v. Vento, 997 S.W.2d 713, 741 (Tex. App._Corpus Christi 1999, no pet.). FN:8 Moreover, because the evidence established a close relationship or link between D'Amico's actions and those of Anthony & Associates, we cannot conclude the joint and several assessment was improper. See id.
        Appellants also claim the punitive damages award is violative of their due process and equal protection rights under the Texas and U.S. Constitutions. Additionally, they assert the award violates the excessive fines provision in article 1, section 13 of the Texas Constitution. Because appellants did not raise any of these constitutional argument in the trial court below, they have not preserved them for appellate review. See Tex. R. App. P. 33.1; Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 600 (Tex. App._Amarillo 1995, no writ).
        Appellants further complain that the punitive damage award assessed against them is excessive and not supported by factually sufficient evidence. They alternatively request a remittitur of the punitive damage award. It is unnecessary to address these issues in light of our decision to reverse and remand the tortious interference claims upon which the punitive damage award is based.          We therefore reverse the trial court's judgment on Frontier's claims for tortious interference and its accompanying actual and punitive damage awards. These claims are remanded to the trial court for a new trial. We affirm the trial court's judgment in all other respects.         
 
 
                                                          
                                                          JOHN R. ROACH
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
 
 
FN:1
1 Anthony & Associates changed its name in October 1995 to Teleresource Corporation. Although we recognize this corporation was sued as Teleresource Corporation, we continue to refer to this corporation by its former name, Anthony and Associates. At the time of the actions complained of, the corporation was known as Anthony & Associates. The jury interrogatories also referred to Anthony and Associates. Additionally, we use the former name to avoid confusion with another Teleresource Corporation which was the subject of the “Joint Venture/Shareholders Agreement for Teleresource Corporation” between Frontier and Teleresource Group.
FN:2
2 Specifically, appellants claim the jury finding on this issue is against the great weight and preponderance of the evidence and not supported by factually or legally sufficient evidence. Appellants' entire argument and accompanying authority, however, focuses on their assertion that a fiduciary duty was established as a matter of law. We will likewise focus our discussion and consider the remaining assertions waived. See Tex. R. App. P.38.1(h); Kang, 992 S.W.2d at 503.
FN:3
3 Phone Partners was the contracting party on the College Station project. Charles Laningham signed the contract as president of Phone Partners.
FN:4
4 In a footnote, appellants contend the trial court erred in overruling their authentification objection to Defendants' exhibit 43. Our review of the record reveals this exhibit, which was a maintenance agreement between Frontier and Phone Partners, was not admitted at the liability trial. In any event, a copy of the written contract between Frontier and Phone Partners was admitted as Defendants' exhibit 44.
FN:5
5 In a footnote, appellants also assert this evidence negates the jury's finding on causation . We do not address this claim because appellants have not presented any argument or authority to support it. See Tex. R. App. P. 52.1(h)
FN:6
6 We perceive appellants' argument that D'Amico and Anthony & Associates had a right to compete for Frontier's customers, encourage Phone Partners to terminate its contract with Frontier, contact Laningham, and withhold data from Frontier as asserting the affirmative defense of legal justification. Because appellants did not plead or raise the issue of legal justification in the trial court, appellants have not preserved this issue for appellate review. See Tex. R. App. P. 33.1
FN:7
7 Our conclusion that there was no reversible error with respect to the jury's tortious interference findings makes it unnecessary to address appellants' claim that the punitive damage award cannot stand absent liability.
FN:8
8 Like Bradford, this cause was filed and accrued before the statute was amended in September 1995. We therefore apply the applicable caselaw prior to the 1995 amendments.