Lee v. Hasson

OPINION

This appeal arises from a dispute over the existence and enforceability of an oral contract between an insurance broker/financial advisor and his wealthy friend and client, who retained his services as an ad-visor regarding the division of property incident to her divorce. The outcome of the appeal turns on the existence and fulfillment of any informal fiduciary duty owed by the advisor to the client. The client, appellant Lanna Lee (formerly Lan-na Pai) and her company, appellant B. Lanna, Inc., challenge the judgment entered in favor of the advisor, appellee Theodore Hasson (“Hasson”) and his companies, appellees H. International Distribution, Inc. a/k/a Hasson International Distribution, Inc. and Diversified Financial Enterprises. Appellants argue, inter alia, that the trial court erred by granting ap-pellees’ motion to disregard the jury finding that a relationship of trust and confidence existed between Lee and Hasson and contend that this ruling constitutes harmful error because there is no evidence that Hasson complied with the fiduciary duty arising from that relationship. Therefore, appellants argue, Hasson failed to overcome the presumption that the agreement, if any, is void. We agree, and accordingly, we reverse and render judgment that appellees take nothing.

I. Factual and PROCEDURAL History

A. The Hasson and Pai History Before the Oral Agreement 1

Lou Pai married Lanna Lee in 1976. They had a son, B.P., in September, 1979, and a daughter, S.P., born in 1982. Pai has advanced degrees in economics and at the time of these events, he was an executive in various Enron companies; Lee was a college-educated homemaker. Through their children, the Pais met Theodore and Terry Hasson in 1993. Ted Hasson was a life insurance agent and securities dealer. The Hassons and the Pais became good friends and spent many vacations and holidays together. In 1995, Hasson sold the Pais a $5 million second-to-die life insurance policy and learned their personal medical information and some of their financial information. The Pais applied for a $6 million policy in June 1995, a $15 *7 million policy in November 1996, and a $50 million policy in March 1998.

In January 1998, Lee discovered that Pai had been having an extra-marital affair and had another child outside of their marriage. She confided her discoveries to the Hassons. Pai moved out of the family home in 1999, and Lee interviewed various family law attorneys, including Lawrence Rothenberg. Lee’s sister, who is also an attorney, accompanied Lee to some of these interviews. On June 15, 1999, attorney J.D. Bueky Allshouse filed a petition for divorce on Lee’s behalf; however, Lee withdrew the suit ten days later.

On or about August 26,1999, Lee sought Hasson’s advice. Anticipating a divorce, Lee asked Hasson what actions she should take while she was still married. At Has-son’s request, Lee forwarded financial statements from Pai’s bank to Hasson. According to Hasson, he was “shocked” by the financial statements. Hasson discovered that the Pais’ net worth was approximately two and half times the amount Hasson had believed it to be and that a large portion of their assets consisted of Enron stock and options. Hasson spoke with Lee about diversification, and at Has-son’s suggestion, Lee began the application process for a variable life insurance policy in the amount of $12 million. Within a few months, the amount of this policy was doubled to $25 million. Hasson also advised Lee to pressure Pai to exercise Enron stock options or sell stock, and Lee asked Pai to do so.

B. The Original Agreement

The parties do not dispute that Pai wanted to negotiate his divorce from Lee without attorney involvement. It is also undisputed that Lee turned to Hasson for advice in negotiating the divorce. As Lee testified:

Lou never wanted lawyers involved and, you know, when Ted and I would talk, Ted would also say, Lanna, you don’t really need a — lawyers to work out — to get a favorable settlement. So, you know, it wasn’t only Lou.

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Lou did say that, too, but you know, as — the reason we’re here, you know, Ted was a friend and Ted and I were talking a lot. We had lots of discussions and he was saying, you know, Ted was helping me and, you know, Ted was also saying, you know, Lanna, we don’t — you know, I can help you brainstorm about possible marital settlement ideas and you really don’t, you know, you don’t really need a lawyer to work out a favorable settlement.

Hasson contends that in September 1999, Lee offered to hire him to work for her full-time. According to Hasson,

Basically the agreement I had with her at that time was to agree to agree, so to speak. In other words, this — this was like new territory, so we both needed to kind of get a grip with what was going to need to be done, the things she was going to be asking me to do, the amount of time that she was going to be asking me to — to take. So — it seemed to me and to Lanna that what made the most sense was to just kind of start feeling our way through this, and that’s what we did starting — starting really in October [1999]. So October, November, December, we got a pretty good flavor for what this thing was going to take.

The nature of Hasson’s services is imprecisely defined in the record, and the jury charge did not require the jury to identify the services that Hasson was required to render, or over what period of time. According to Hasson’s live pleadings at the time of trial,

*8 [Hasson agreed] to essentially do whatever [Lee] asked Hasson to do and to wear whatever “hat” [Lee] asked Has-son to wear in achieving the ultimate goal which was the best property division and settlement possible as quickly as possible with the minimum adverse impact on [Lee] and her children. [Lee] and Hasson agreed that Hasson would assist [Lee] in developing options and alternatives, considering the impact of any decision or course of action on [Lee]’s quality of life and [Lee]’s children, keeping focused on the various issues and decisions which would have to be made on a short, medium and long-term basis, considering the consequences of pursuing an option, alternative or decision, the impact on Lou Pai and his potential reaction, as well as considering [Lee]’s exposure to market risk related to the Enron stock and stock options which were a major asset in the community estate.

Hasson described his negotiations with Lee as follows:

Q: What did you understand she was talking about hiring you to do?

A: At that time [September 1999]? Well, I think the only thing we talked about was, hey, listen, I’ve fought this situation. Oh, yes, I remember this. She said, listen, I’m getting ready to negotiate with the toughest negotiator at the Enron Corporation. It’s going to be the biggest deal of my life, and I’m going to need some help with that. I remember that.

Hasson’s lawyer also asked him why Lee hired Hasson rather than a licensed family law attorney. Hasson testified:

Q: All right. Well, here’s what I’m a little curious about. And I’m sure the jury is curious about this. Why didn’t she just go out and hire the best divorce lawyer in Texas?

A: You know what? On that day — at that point in time on that day I actually — I didn’t — I didn’t know about that, and I don’t think that was anything — I know that — that wasn’t something that was discussed on that day.

Q: Was there a time when she did explain to you why she wasn’t out hiring a first-class divorce lawyer?

A: Absolutely. She — she just said, hey, listen, Lou wants to do this thing without lawyers, and I’m— me, too. I don’t really want to do it without lawyers, and so — I mean, it couldn’t have been — it was just real simple.

C. Hasson’s Work for Lee

Hasson contends he began working for Lee in October 1999 and reached an oral agreement with her regarding his compensation on January 18, 2000. According to Hasson, he presented three different compensation schemes to Lee, and she selected the option in which she agreed to place her entire share of the marital estate into a limited partnership with Hasson, give him 10% of the partnership, and pay him an annual salary equal to 1% of the share of the marital estate she received in the divorce. Hasson further testified that Lee agreed to build a multimillion dollar home (the “Dunsinane House”) for the Hassons and lease it to the Hassons for an annual rent equal to 10% of the home’s value, deducting the rent from Hasson’s salary.

During his first month of employment, Hasson helped Lee obtain a mortgage loan and line of credit; however, as Hasson conceded at trial, Pai already had arranged such financing before Hasson’s involvement. At trial, Hasson testified that he did not know whether the terms of the loan he arranged were better or worse *9 than the terms of the loan arranged by Pai; however, the loan arranged by Has-son included a payment of $120,000 to Hasson’s company, Diversified Financial Enterprises. Lee also gave Hasson a check for $100,000 for earnest money for a house she considered buying. 2 According to Lee, “It was Ted’s idea. He told me I should buy a house.” However, the contract for the property identifies Theodore and Theresa Hasson as the buyers. Lee testified she later learned that Hasson put the earnest money check in his bank account and told her the contract fell through. According to Hasson, however, both this check and the $120,000 payment to Diversified Financial Enterprises were advances against the amounts he would be due under his oral agreement with Lee.

At some point, Lee also expressed concern to Hasson that she might be sued for the actions of her son. 3 Lee’s son was over eighteen years old at this time, and Hasson “did have that idea” that B.P.’s judgment creditors, if any, could not recover against Lee. However, partly in response to these concerns, and partly for unspecified tax reasons, Hasson arranged for the formation of a corporation, B. Lan-na, Inc., on February 11, 2000. The company was intended to be part of an asset protection mechanism. There is some evidence that Hasson owned 10% of the company. Hasson’s accountant, Raleigh Bailes, served as the company’s chief financial officer.

As anticipated, Lou Pai filed for divorce on March 3, 2000 in the 245th District Court of Harris County, Judge Annette Galik presiding. Pai and Lee mediated their divorce in April and May 2000. According to Hasson’s wife, Lee “wasn’t always happy with that decision [to negotiate the divorce without attorneys]. She wanted to go to court and kind of — you know, I guess she felt that that would be a way to kind of bring things out in the open. And so Ted would kind of tell her that probably it wasn’t in her best interest if Lou was going to do what was right.” Nevertheless, at Lee’s invitation, Hasson accompanied her to interview divorce attorney Donn Fullenweider. Has-son suggested that attorney Lawrence Rothenberg review Fullenweider’s proposed contract. According to Hasson, he advised Lee not to retain Fullenweider based on Rothenberg’s advice.

Lee discussed the offers and counteroffers of the divorce mediation with Hasson, including specific figures and percentages of the proposed marital property division. Hasson also advised Lee regarding negotiating tactics and strategies. Although Hasson did not attend any of the mediation sessions, Victor Harris, Lee’s accountant, accompanied her. Hasson and Lee did not disclose the existence of their oral agreement to Harris. According to Has-son, he was honoring Lee’s request that no one know about her contract with him.

D. The Modification and Termination of the Agreement

Hasson claims that on May 3, 2000, Lee told him that she wanted to modify her *10 oral agreement with Mm to eliminate the contemplated partnership and instead pay Hasson 10% of the value of her marital estate at the time of her divorce in exchange for services he had rendered in the past and was expected to render in the future. According to Hasson, he also agreed to work for the remainder of the year to finish pending projects for which he would be paid a salary equal to 1% of Lee’s share of the marital estate. Hasson further testified that the Dunsinane House was no longer part of his compensation package after May 3, 2000. Nevertheless, he continued to work with various contractors on the house and continued using Lee’s money to do so. On May 4, 2000, Hasson signed a contract for the addition of a pool to the Dunsinane House at a cost of approximately $86,000. He signed the contract “P.O.A. for L. Pai.” 4 No evidence was presented at trial that Hasson had a valid power of attorney at that time.

At some point, Lee and Pai verbally agreed to begin separating their assets and treating the assets under each spouse’s control as his or her own. Pai exercised options and sold large quantities of Enron stock during the first five months of 2000, Although Lee still maintained a joint account with Pai, she opened additional accounts to which Hasson was added as a signatory. Pai transferred funds allocated to Lee to one or more of Lee’s accounts.

On May 19, 2000, Hasson, Lee, and accountant Raleight Bailes held a meeting to prepare for the final divorce mediation scheduled to take place a few days later. Bailes described the meeting as follows:

We discussed whether or not [Lee] should withdraw the money from the joint' account [with Pai] and put it into her account. I suggested that she call her attorney Donn Fullenwilder [sic], to get his input. Ted said that wasn’t a good idea because Donn was going to charge her $7,000,000 to get her 50% of the community estate. 5 Recognizing that [Lee] was going to get this money sooner or later, it was agreed that she would not invade the [joint account] unless the settlement negotiations broke down.

The conversation then addressed the necessity or desirability of immediately withdrawing funds from Lee’s accounts for particular purposes. The versions of this conversation given by Bailes, Lee, and Hasson differ. According to Bailes, he informed Lee and Hasson that:

to the extent that [Lee] was paying valid business, investment or personal expenses, she might have a shot at having that come out of the community assets. [Lee] then detailed the expenses that were going to be paid and mentioned she owed [Hasson] some money for his services. I jokingly asked how much, $10,000? After laughing, [Lee] outlined to me her deal with [Hasson]: [Hasson] will get a fee equal to 10% of the fair market value of what she recovers in the divorce settlement with [Pai]. Since she has already recovered $40,000,000, she owes him $4,000,000 currently, and will owe him 10% of whatever assets she receives in the future as a result of the divorce. To maximize the potential tax deduction to [Lee], I suggested all these expenses be paid by B. Lanna, Inc. and.... I recommended [Hasson’s] fee be paid to his corporation.

According to Lee, Hasson told her that Judge Galik was likely to freeze the assets in the marital estate, and Hasson and Lee *11 discussed the need to withdraw funds from Lee’s accounts before that occurred in order to pay for current expenses. Lee testified that she subsequently transferred $4 million to Hasson’s company with the intent that he hold the money for her. In his testimony, Bailes agreed that Lee and Hasson discussed whether Lee should withdraw funds and have Hasson hold the funds for her, but according to Bailes, he advised Lee not to do so, but to pay Has-son only if she owed him money. Hasson also testified that he and Lee discussed whether Judge Galik would freeze the assets in the marital estate, but according to Hasson, Lee introduced the subject.

In any event, on May 23, 2000, Hasson transferred $5.95 million from Lee’s account to B. Lanna, Inc. The corporation then issued a cashier’s check for $4 million to H. International Distribution, Inc., the company through which Hasson and his wife sell Amway products.

Bailes testified that a few days later, Lee contacted him in an effort to reach Hasson, and Bailes told Lee that Hasson was on vacation. Lee and her daughter then joined the Hassons on vacation in early June. According to Lee, she asked Hasson to return the $4 million. Lee returned from the vacation a week or so before Hasson.

When Hasson returned, Lee arranged to meet with him on June 29, 2000. According to Hasson, Lee told him at the meeting that she would not pay him 10% of her share of the marital estate and asked him to accompany her to the office of attorney Warren Cole. Hasson refused to do so, and Lee left. Later that day, Cole sent Hasson a letter by messenger informing Hasson that all business relationships between Lee and Hasson were terminated and all powers of attorney revoked. Cole’s letter further advised Hasson that “any possessory interest you may have thought you would have had in the [Dunsinane House] is hereby revoked and terminated.” Cole also requested that Hasson return the $4 million previously transferred and resign from B. Lanna, Inc. by July 14, 2000.

E. The Divorce

Pai and Lee were divorced on August 21, 2000. Under the terms of the Agreement Incident to Divorce (“AID”), Pai and Lee agreed that the marital estate, exclusive of certain securities discussed below, was worth $193,620,145. Lee received over 57% of the assets of the marital estate, and her share of the estate had a total agreed value of $110,536,269, excluding restricted or unissued securities.

Pai and Lee also agreed that Lee would receive one-half of the equity Pai was entitled to receive in The New Power Company. Specifically, under his employment agreement with an Enron affiliate, Pai was entitled to receive 2% of the equity in The New Power Company for an amount that totaled 2,064,400 shares; however, the stock had not yet been issued at the time of the divorce. Pai received the shares in October 2000 subject to transfer restrictions, and the value of Lee’s portion of the stock under the AID was disputed at trial. The AID did not place a value on the unissued securities, but merely allotted half of the equity to Lee and half to Pai. In assigning values to the other assets of the marital estate, Lee and Pai agreed that each cash account had a value equal to its balance on May 24, 2000, and publicly traded securities were assigned their value as of July 24, 2000. The AID did not identify a method for determining the value of stock that had not yet been issued.

F. Hasson’s Suit

Hasson sued Lee on July 10, 2000, alleging that Lee’s share of the marital estate, *12 including the New Power shares, totaled approximately $140 million, and that Lee owed him 10% of this amount in payment for his services under the terms of the May 3, 2000 modification of their oral agreement. 6 At trial, Lee denied that she had an agreement with Hasson, and contended that he was instead a helpful friend. In the alternative, she argued that the agreement described by Hasson is unenforceable. Lee also countersued for recovery of funds Hasson and his companies received from Lee, alleging that Hasson converted Lee’s funds, committed fraud, or breached his duty as a bailee.

The jury found that Lee agreed to pay Hasson a fixed percentage of the value of her share of the marital estate at the time of her divorce in exchange for Hasson’s agreement to provide services. The jury also found that Lee had failed to comply with the agreement, and that her failure was not excused on the grounds that (a) Hasson’s services constituted the unauthorized practice of law, (b) the agreement was unconscionable, or (c) Hasson was equitably estopped from enforcing the agreement. The jury further found that Lee owed Hasson $10 million, and that the reasonable fees for the necessary services of Hasson’s attorneys totaled $4 million. In response to Question 16 of the charge, the jury found that a relationship of trust and confidence existed between Lee and Hasson at the time they entered into the oral agreement. The jury also answered Question 17 affirmatively, finding that Hasson had complied with his fiduciary duty to Lee. The jury failed to find that Hasson or his companies had converted funds belonging to Lee or that Hasson had committed fraud.

Hasson, Lee, and their respective companies filed cross-motions asking the trial court to disregard particular jury findings. Lee and B. Lanna, Inc. asked the trial court, among other things, to disregard the jury’s finding that Hasson complied with his fiduciary duty to Lee, as found in response to Question 17 of the jury charge. Conversely, Hasson and his companies asked the trial court to disregard the finding that Hasson and Lee shared a confidential relationship, as determined by the jury’s answer to Question 16. The trial court entered a final judgment disregarding the jury’s answer to Question 16 as requested by appellees.

II. Issues Presented

Lee presents six issues for appellate review, and Hasson presents a single cross-point. In her first issue, Lee argues that, because the evidence that Hasson complied with his fiduciary duty to Lee is legally insufficient, the trial court committed harmful error in disregarding the jury’s finding that Hasson had a relationship of trust and confidence with Lee. In her second and third issues, Lee argues that the contract between Hasson and Lee is unenforceable because it is unconscionable and violates public policy. In her fourth issue, Lee challenges the factual sufficiency of the evidence supporting the jury’s finding that Hasson sustained actual damages in the amount of $10 million. Lee argues in her fifth issue that the jury’s finding that Lee and Hasson agreed that Lee would pay Hasson a fixed percentage of the value of her share of the Pai marital estate in exchange for Hasson’s services is corrupted by a “tilting” or “nudging” instruction that an agreement “need not be in writing” to be “enforceable.” Lastly, *13 Lee asks the court to modify the judgment to delete any recovery by Hasson’s companies against Lee’s corporation. 7

In a cross-point, Hasson challenges the factual sufficiency of the evidence supporting the jury’s finding that Lee had a relationship of trust and confidence with Has-son. 8

III. Analysis

A. Relationship of Trust and Confidence

In Lee’s first issue, she contends that the trial court committed harmful error in disregarding the jury’s finding that Has-son had a relationship of trust and confidence with her. Hasson’s cross-point, in which he argues that the evidence is factually insufficient to support the jury’s finding that Lee and Hasson had a relationship of trust and confidence, relates to the same jury question. This issue is important to both parties because the existence of such a relationship not only imposes on Hasson the elevated duty of a fiduciary, but also places the burden on him to prove that he complied with that duty. See Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 514 (Tex.1942) (holding that one who occupies a fiduciary relationship to another must measure his conduct by high equitable standards and not by the standards required in arm’s-length transactions); Chien v. Chen, 759 S.W.2d 484, 495 (Tex.App.-Austin 1988, no writ) (holding that transactions between a fiduciary and his principal are presumptively void).

1. Standard of Review

A trial court may disregard a jury’s verdict and render a judgment notwithstanding the verdict if no evidence supports one or more of the jury’s findings or if a directed verdict would have been proper. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003). To determine whether the trial court erred in rendering a judgment notwithstanding the verdict, we review the entire record, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In the course of our review, we assume that jurors decided questions of credibility or conflicting evidence in favor of the verdict if they reasonably could do so. Id. at 819, 820.

“The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id. at 827. If the evidence “would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so.” Id. at 822. We do not substitute our judgment for that of the trier-of-fact if the evidence falls within this zone of reasonable disagreement. Id.

*14 Hasson’s challenge to the factual sufficiency of the evidence is subject to a different standard of review. When reviewing a jury finding for factual sufficiency, we consider and weigh all of the evidence and conclude that the finding is not supported by factually sufficient evidence only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

2. Governing Law

The term “fiduciary” refers to a person owing a duty of integrity and fidelity, and “it applies to any person who occupies a position of peculiar confidence towards another.” Kinzbach Tool Co., 138 Tex. at 571, 160 S.W.2d at 512. In certain formal relationships, such as an attorney-client or trustee relationship, a fiduciary duty arises as a matter of law. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199 (Tex.2002). Texas courts also have recognized that certain informal relationships may give rise to a fiduciary duty. See Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 594 (Tex.1992). An informal fiduciary relationship exists “where, because of family relationship or otherwise, [one party] is in fact accustomed to be guided by the judgment or advice” of the other. Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.1962). “Such informal fiduciary relationships have also been termed ‘confidential relationships’ and may arise ‘where one person trusts in and relies upon another, whether the relation is a moral, social, domestic or merely personal one.’ ” Crim Truck & Tractor Co., 823 S.W.2d at 594 (quoting Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 261 (1951)). Stated another way, a party fails to comply with his fiduciary duty “where influence has been acquired and abused, and confidence has been reposed and betrayed.” Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex.App.-Houston [14th Dist.] 1997, pet. denied) (citing Crim Truck & Tractor Co., 823 S.W.2d at 594).

“In order to give full force to contracts, we do not create such a relationship lightly.” Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex.1997). As we have previously stated,

A person is justified in placing confidence in the belief that another party will act in his or her best interest only where he or she is accustomed to being guided by the judgment or advice of the other party, and there exists a long association in a business relationship, as well as personal friendship.

Hoggett, 971 S.W.2d at 488. “The existence of the fiduciary relationship is to be determined from the actualities of the relationship between the persons involved.” Thigpen, 363 S.W.2d at 253. Where the evidence is disputed, the existence of an informal, confidential relationship is a question of fact. See Crim Truck & Tractor Co., 823 S.W.2d at 594. If a business transaction is involved, the confidential relationship must exist prior to, and apart from, the agreement made the basis of the suit. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 288 (Tex.1998). However, evidence of a party’s subjective feelings is insufficient, without more, to establish the existence of a confidential relationship. Thigpen, 363 S.W.2d at 253.

3. Evidence of a Confidential Relationship

Mere subjective trust does not transform an arm’s-length transaction into a fiduciary relationship. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). Rather, in order to establish the existence of an informal fiduciary relationship, the record must show that one of the *15 parties relied on the other “for moral, financial, or personal support or guidance.” Trostle v. Trostle, 77 S.W.3d 908, 915 (Tex.App.-Amarillo 2002, no pet.). The length of the relationship is another important factor in determining whether a fiduciary relationship should be recognized. Chien, 759 S.W.2d at 494 n. 6 (citing Harris v. Sentry Title Co., Inc., 715 F.2d 941 (5th Cir.1983)); Kalb v. Norsworthy, 428 S.W.2d 701, 705 (Tex.Civ.App.-Houston [1st Dist.] 1968, no writ) (finding a fiduciary relationship where, “By reason of appellant’s long association with appel-lee in a business relationship, as well as the close personal friendship existing between them, appellant was justified in placing confidence in the belief that appel-lee would act in his best interest.”). But even a longstanding relationship of friendship or cordiality is insufficient, without more, to establish an informal fiduciary relationship. See Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex.2005) (holding that no fiduciary relationship existed where the record showed that, although the parties were friends and frequent dining partners, their prior projects together were arm’s-length transactions governed by agreements that expressly disavowed the creation of any fiduciary duty); Atrium Boutique v. Dallas Mkt. Ctr. Co., 696 S.W.2d 197, 199-200 (Tex.App.-Dallas 1985, writ ref'd n.r.e.) (holding that the trial court properly disregarded a jury finding that appellant Bayoud shared a confidential relationship with appellee Crow where the record reflected only that their families had been socially acquainted for twenty-two years and shared a “friendly, respectful relationship,” but that Bayoud was never guided by Crow). On the other hand, a close personal family relationship can give rise to a fiduciary relationship. Holland v. Lesesne, 350 S.W.2d 859, 862 (Tex.Civ. App.-San Antonio 1961, writ ref'd n.r.e.) (affirming finding of a confidential relationship where the evidence showed an “unusually close personal friendly and confidential relationship” between the parties and their families in which the families visited each other regularly, dined together, and vacationed together).

The record reveals both legally and factually sufficient evidence that Has-son and Lee shared a long-standing business relationship and a close personal family relationship well beyond casual friendship and that Lee relied on Hasson for moral, financial, and personal guidance or support. Moreover, their relationship began in 1993 and therefore predated their agreements by approximately six years.

Although the friendship between the two families dates back to 1993, the business relationship between Hasson and the Pais began in 1995, when Hasson sold the couple a $6 million life insurance policy. The following year, the couple purchased a second, $15 million policy from Hasson. When the Pais purchased a $50 million policy in 1998, Hasson became the top producing life insurance agent for that insurer in the country, due primarily to the fact that this was the largest life insurance policy written. The extent to which Has-son relied on business from Pai and Lee is evidenced in his own testimony, in which he describes his reaction upon learning of Pai’s affair:

I remember sort of disengaging a little bit from that news. This was not good news, as you’ve heard, about the family relationships and, of course, at this point in time I had also started a business relationship with Lou and Lanna, so this was not good news for the Hasson family or for my business with them.

(emphasis added). Before beginning work for Lee in October 1999, Hasson helped Lee apply for yet another life insurance *16 policy in August 1999. Hasson earned commissions on each of these sales.

The evidence is also uncontroverted that the families were unusually close. For example, the Hassons and the Pais vacationed together at Lake Powell, the Cayman Islands, and the Pais’ ranches in Texas and Colorado. Not only did the two families vacation together, as in Holland, but as Hasson admitted, “these two families had practically lived together.”

In addition, Lee depended on Hasson for personal and moral support, as evidenced by testimony that Hasson’s attorney elicited from both Hasson and Lee:

Q: Was there anybody in the world who had the relationship with Lanna Pai that would allow them to fulfill the role that you fulfilled for her besides you?

Hasson: I can’t imagine that there was anyone that cared and had the abilities that she knew I had and the knowledge she knew I had about all the items, all the topics that were important to her in her life.

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Q: And in this darkest hour of your life did you turn to Ted Hasson?

Lee: Yes. Yes, I did. I did turn to Ted Hasson.

Q: He was a rock for you, wasn’t he, [a] stabilizing influence?

Lee: I was very vulnerable. I needed— I looked for some support and Ted was there.... He stepped in and he was there for me.

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Q: And in this darkest hour is it fair to say that — that you leaned on Ted?

Lee: Yes. That’s correct. I did lean on him.

Q: You and he through the course of all that we’re fixing to talk about became very close friends, didn’t you?

Lee: Yes.

Q: Much closer than you were before when it was just the families and the vacations and the ranch and the Grand Cayman and all that. That really was the — where you and Terry [Hasson] became close, but you and Ted really didn’t become close until you turned to him, is it fair to say, in your darkest hour, from that point forward is where the closeness developed?

Lee: Yes, especially after Lou moved but. I turned to Ted and Ted was there and I — I confided in him. I trusted him.

Hasson’s attorney also elicited testimony establishing that Lee’s reliance on Has-son’s support predated any agreement between them:

Q: During this period [the summer of 1999] where you were still trying— you were hopeful that the marriage might get reconciled[,] there were things that you and Ted were doing together, he was doing with you to — I don’t know if this is the right way to describe it, but get your self esteem back where you knew it needed to be, where it could be and where it should be, things of that nature?

Lee: I don’t know if I’d call it self esteem. Ted was a friend. I looked to him. I trusted him to give me a lot of moral support. As we’ve said earlier, you know, it was the worse — it was the worse [sic] time of my life and I was having problems with my children and — and during our marriage Lou always made all of the big decisions, and so when Lou left I’m all alone and I’ve got my daughter threatening suicide, I’ve got my son in depression, *17 too, so I turned to Ted and Ted was there for me.

Q: The Be All Lanna Can Be program, you heard that before, haven’t you?

Lee: Yes, sir.

Q: What does that mean to you?

Lee: It means that something — that’s something Ted would say to me. Ted — as I said, Ted was giving me a lot of support. He was there to give me emotional support and moral support and he would, you know, try to make me feel better and punch me up and say, listen, Lanna, you know, you — you know, you are — you can be strong. You can be — I want you to be everything you can be and that’s where be all you can be, sounds a little corny out of context, but that’s sort of — sort of like a cheer, you know, be all you can be, and, you know, he knew — he saw what — how difficult it was for me, you know, with this divorce....

Q: This Be All Lanna Can Be program, pumping you up, encouraging you, whatever is the best way to describe that, that was going on when you and he were trying to figure out ways to reconcile your marriage. Right?

Lee: Yes. Yes.

Q: This way before any, let’s go find bankers and realtors and accountants and all that. This is a time period earlier in time. Right?

Lee: You know, I believe it was. I’m just saying, you know, once I confided in Ted that I’m having marital problems, which was around — I discovered in January of '98 and I told Ted I was having marital problems in February of'98....

These are not isolated examples of testimony illustrating a preexisting relationship of trust and confidence; for example, Lee’s daughter also stated that Hasson had “always been the father figure I looked to for support” and described the Hassons as family. Hasson’s wife, whom Hasson described as Lee’s “best friend,” testified as follows:

Q: Mrs. Hasson, given the closeness of the two families that you’ve described for us, there was a relationship of trust and confidence that existed between Mr. Hasson and Mrs. Pai, or now Ms. Lee, even before he started working for her, wasn’t there?

A: Trust?

Q: A relationship of trust and confidence.

A: Yes. Yes. I would say so.

Lee’s trust in Hasson was reciprocated; Hasson testified that he trusted Lee “100 percent” and suggested that few people knew him as well as Lee did. Moreover, establishing the pre-existence of a relationship of trust was an explicit part of Has-son’s trial strategy, as illustrated by his attorney’s opening statement:

He takes them on vacations. They go out to Lake Havisaw and they go jet skiing and they go — they spend their vacations together, they spend Easters and Thanksgivings together, and the families bond as families do.... Now, who are you going to turn to if you find out the person you love the most in life, that you’ve been married to for 20 some odd years, has been dating somebody for years? You turn to people you trust and that you know and that you care about. And the Hassons did what people who are decent and honest and have integrity do. They stand by their friends.... It’s a hundred to a thousand. That’s what we claim this man right there, Ted Hasson, was more loyal to that woman right there, Lanna [Lee], than her own husband. You can argue *18 about whether he was a hundred times more loyal or a thousand times more loyal, but he was more loyal....

Hass