AFFIRMED as MODIFIED and Opinion Filed September 17, 2020 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-18-00799-CV 

JONATHAN CORNWELL AND SHADD MCKINNEY, Appellant 

V. 

DIANA SCOTHORN, STEWART SCOTHORN, THE BENEFIT LINK, 

INC., AND SCOTHORN AERO, INC., Appellee 

On Appeal from the 429th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 429-05287-2016 

MEMORANDUM OPINION 

Before Chief Justice Burns, Justice Molberg, and Justice Partida-Kipness 

Opinion by Chief Justice Burns1

Jonathan Cornwell and Shadd McKinney appeal the trial court’s judgment 

awarding Diana and Stewart Scothorn $183,890.18 on their claim of promissory 

estoppel against Cornwell and McKinney and awarding McKinney $17,427.86 for 

credit card expenses and loss of credit reputation. In nine issues, Cornwell and 

McKinney argue the trial court erred “by including the jury’s promissory estoppel 

 1

 The Honorable David Bridges, Justice, participated in the submission of this appeal; however, he did 

not participate in the issuance of this opinion due to his death on July 25, 2020. Chief Justice Burns has 

reviewed the record and the briefs in this cause. 
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finding and associated damages” against them; the evidence does not support the 

jury’s answers to the question regarding promissory estoppel, the question regarding 

the Scothorn’s estoppel defense, and the question regarding Cornwell and 

McKinney’s fraud; the trial court erred in not awarding Cornwell and McKinney 

equitable relief and awarding the Scothorns costs; the evidence conclusively 

established the jury’s award of damages was excessive; and the trial court erred in 

denying Cornwell and McKinney’s motion for new trial. As modified, we affirm 

the trial court’s judgment. 

In December 2016, the Scothorns filed suit against Cornwell and McKinney. 

The facts as set forth in the Scothorns’ fourth amended petition are as follows. 

Legacy Aeronautics is a closely-held corporation, and Diana is the majority 

shareholder. Diana is also the sole shareholder of The Benefit Link, Inc., a Medicare 

supplement insurance company. In April 2015, the Scothorns were introduced to 

Cornwell and McKinney at church. Cornwell and McKinney had left positions in 

the aeronautics industry and were seeking investors to start Legacy. In discussions 

with the Scothorns, Cornwell and McKinney identified customers and contracts they 

had or were reasonably certain to have. The Scothorns agreed to provide the initial 

capital, which was all that was supposed to be required to fund initial operations, 

and no extended or continuing contributions were contemplated. 

In August 2016, the parties signed a written agreement that confirmed Diana 

owned eighty percent of Legacy, and Cornwell and McKinney each owned ten 
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percent. The agreement was made retroactive back to the inception of Legacy in 

April 2015. At all times, Cornwell and McKinney ran Legacy’s daily operations. 

Despite the Scothorns’ initial understanding that they would only make the 

initial equity contribution, Cornwell and McKinney continued to request additional 

funds. Cornwell and McKinney indicated that there were substantial deals in place 

or in Legacy’s pipeline that required additional funds to be fulfilled. Between April 

2015 and October 2016, the Scothorns advanced approximately $2.35 million to 

Cornwell and McKinney directly or indirectly through direct payments or purchases 

made on behalf of Cornwell and McKinney and Legacy. Of this amount, $1.7 

million went to Cornwell and McKinney and/or Legacy, $37,700 was spent on 

equipment purchases by Legacy, and $626,000 was used to pay for Legacy’s 

staffing. 

By October 2016, the Scothorns became weary of Cornwell and McKinney’s 

repeated requests for additional advances. Following Cornwell and McKinney’s 

representations that they were working twenty-four hours a day and not getting paid, 

the Scothorns offered the help of a Benefit Link employee, Micah Lynch, who 

requested financial information to create a budget and provide operational structures 

and support. By late October or early November, operations had not improved and 

Cornwell and McKinney were requesting additional funds. By that time, Lynch had 

determined Legacy had accounts payable of a million dollars and was unable to fund 
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its operations. Lynch also had a difficult time getting complete information from 

Cornwell and McKinney. 

The Scothorns discovered that, although Legacy was not profitable and at 

times insolvent, Cornwell and McKinney collectively paid themselves direct 

compensation in excess of $240,000 during the partial year 2015 and more than 

$300,000 during 2016. Cornwell and McKinney did not account for the payments 

as wages or distributions; instead, when Legacy received funds, Cornwell and 

McKinney dispersed the funds to themselves. At the same time, Cornwell and 

McKinney did not make any distributions to the Scothorns, Legacy was incurring 

additional debt to third-party vendors for contract labor, and Cornwell and 

McKinney were charging personal expenses to Legacy. In November 2016, the 

Scothorns requested documentation of Legacy’s expenses, but Cornwell and 

McKinney failed to provide support for the expenses or documentation as to the 

necessity of the expenses as they related to Legacy’s business. On November 14, 

2016, Cornwell and McKinney indicated they would not continue to run Legacy 

without additional cash from the Scothorns. On November 17, 2016, Cornwell and 

McKinney notified the Scothorns that (1) they had “secured” the leased space rented 

by Legacy, (2) they would seek other employment, (3) the company credit card was 

past due and could not be paid, (4) all equipment owned by Legacy was located in 

the leased space, and (5) approximately $60,000 in accounts receivable remained to 

be collected by Legacy for work already completed. Based on the foregoing, the 
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Scothorns filed suit alleging causes of action for breach of fiduciary 

duty/constructive fraud, fraud/fraudulent inducement, money had and received, alter 

ego, conversion, conspiracy, breach of contract, and promissory estoppel. The 

Scothorns also requested the appointment of a receiver. 

Cornwell and McKinney filed an answer denying that all conditions precedent 

had occurred and asserting the following affirmative defenses: duress, lack of 

consideration, fraud, ratification, waiver, and estoppel or quasi-estoppel. Cornwell 

and McKinney also asserted that the Scothorn’s claims were barred by the business 

judgment rule and the Scothorns’ damages were caused by themselves or others. 

Cornwell and McKinney also filed counterclaims and third-party claims and 

asserted the following version of the facts. Cornwell and McKinney formed Legacy 

in April 2015 and granted Stewart a twenty-percent interest in exchange for start-up 

capital on an as-needed basis. At all times, Cornwell and McKinney made it clear 

that they lacked capital, the business was not likely to attain profitability for some 

time, and they would need additional funds to conduct operations while the business 

developed. Cornwell and McKinney were to receive a salary for conducting 

Legacy’s operations and, as funds were needed, they were to inform Stewart, and 

Stewart would advance the funds. At that time, Stewart did not disclose or mention 

that his wife, Diana, was involved in Legacy’s business or that she was providing 

the funds to meet Legacy’s operating requirements. Instead, Cornwell and 

McKinney were led to believe they were dealing with Stewart as their fellow 
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shareholder. In July 2015, Stewart made advances of $189,420.12 and $150,000. In 

August 2015, after only a few months of operations and despite being told at the 

outset that additional funds would be needed to fund Legacy’s operations until it 

became profitable, Stewart expressed frustration about the funds needed to operate 

Legacy. Stewart made it clear that, unless he was given a higher percentage of 

ownership, he would refuse to provide further financial support to Legacy. Cornwell 

and McKinney offered to change the ownership structure to make Stewart a sixty 

percent owner, and Stewart continued to fund Legacy as needed. 

Stewart served as corporate officer in charge of the finances for Legacy, while 

Cornwell and McKinney conducted day-to-day operations. Cornwell and 

McKinney discussed financial expenditures with Stewart, and Stewart cleared the 

expenditures before payments were made. In this role, Stewart made further 

advances to Legacy as follows: $86,000 on December 3, 2015; $85,000 on 

December 18, 2015; $100,000 on March 12, 2016; $100,000 on March 24, 2016; 

$100,000 on April 10, 2016; and $75,000 on April 20, 2016. During this time period, 

Cornwell and McKinney provided Stewart with details on the amounts Legacy was 

paying and, in his capacity as chief financial officer, Stewart approved the 

expenditures. 

During this same time period, Cornwell and McKinney continued to develop 

Legacy’s business and pursue new clients. Cornwell and McKinney developed a 

business strategy to pursue government contracts through a federal small business 
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set-aside program. On August 17, 2016, Cornwell and McKinney discussed with 

Stewart the opportunity to serve as the prime contractor on a federal contract with 

Bell Helicopter serving as the sub-contractor. Cornwell and McKinney discussed 

similar opportunities with Bell Helicopter, Raytheon, and Lockheed Martin, and 

they kept Stewart informed about these opportunities. 

In April 2016, Stewart required five percent of all revenue generated be paid 

to his charitable foundation. Stewart also required that $100,000 per month be repaid 

to Stewart as “ruminative compensation for Capital initially invested.” If not paid, 

this “ruminative compensation” was to “earn interest of 50% per month” and 

“accumulate and compound” until paid. Stewart also told Cornwell and McKinney 

they could recover some of the percentages taken from them by meeting certain 

weight loss demands. 

In August 2016, Cornwell and McKinney discussed with Stewart transferring 

his ownership to his wife, Diana. Stewart remained a corporate officer of Legacy, 

and Cornwell and McKinney continued to deal with Stewart, not Diana. 

Nevertheless, on September 19, 2016, The Benefit Link sent documents to the Texas 

Secretary of State purporting to name Diana as the sole shareholder of Legacy, which 

she never was. At no time did Cornwell or McKinney receive any consideration for 

any part of their original forty percent ownership interest in Legacy. 

Although Cornwell and McKinney’s relationship with Stewart continued to 

deteriorate, Cornwell and McKinney continued to do their jobs and generate revenue 
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through purchase orders and sales contracts. Cornwell and McKinney further 

pursued promising prospective business relations with Bell Helicopter, Lockheed 

Martin, and others for government small business set-aside contracts 

However, as early as October 2016, the Scothorns began discussions with 

their attorney concerning Legacy and directed Micah Lynch, as an employee of The 

Benefit Link, to review Legacy’s finances. The Scothorns also suggested Marcus 

Young, another employee of The Benefit Link, for a position at Legacy. Cornwell 

and McKinney cooperated with these efforts and were given no indication that the 

Scothorns were planning to end their involvement and support of Legacy. 

At a November 4, 2016 meeting, Stewart demanded that Cornwell and 

McKinney sign a stock agreement and promissory note that would obligate Cornwell 

and McKinney to pay $3,500,000 each to the Scothorns. This amount exceeded 

anything the Scothorns advanced to Legacy, and Cornwell and McKinney had never 

agreed to be personally liable for funds contributed, loaned, or advanced to Legacy. 

When Cornwell and McKinney refused to sign, the Scothorns proceeded with their 

plans to shut down Legacy. 

On November 6, 2016, at the direction of the Scothorns, Lynch made demand 

for all documents related to Legacy’s business operations, including vendor 

information, customer information, log-in and password information, accounts 

payable, existing lease agreements, and purchase orders. Two days later, Stewart 

emptied Legacy’s bank accounts, effectively suspending Legacy’s operations. 
 –9– 

Cornwell and McKinney came to believe the Scothorns had decided to shut 

down Legacy and form a new competing company, Scothorn Aero, Inc. (SAI). On 

November 22, 2016, Diana filed papers with the Texas Secretary of State forming 

SAI. Prior to that, SAI developed a website and a business plan using third-party 

vendors. Young, who received training and information regarding Legacy’s 

business, became SAI’s executive director. SAI is wholly owned by Stewart and 

Diana, and both they and Lynch serve as officers of SAI. Based on these facts, 

Cornwell and McKinney asserted claims of breach of fiduciary duty/knowing 

participation, fraud, tortious interference with existing and prospective business 

relations, aiding and abetting/civil conspiracy/ratification, respondeat superior/vice 

principal, and attorney’s fees. 

At a jury trial in April 2018, Stewart testified he met McKinney at a time when 

he was the chief executive officer of The Benefit Link and Diana was the owner. 

McKinney said he wanted to tell Stewart about getting into business making cabinets 

and galleys for commercial and private jets. McKinney said Cornwell was his friend 

and was extremely experienced within the industry and had twenty-five years of 

experience. Stewart met with Cornwell and McKinney, and they told Stewart they 

had existing clients from their company that was going out of business. Cornwell 

and McKinney said they had “in the neighborhood of $10 million in contracts that 

they wanted to get,” and they just needed more space and more equipment to get the 

contracts. They asked Stewart to invest, but he said he was not interested. 
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McKinney was “very persistent,” so Stewart said he would “pray about it” and ask 

his wife about it. 

At a subsequent meeting, Cornwell and McKinney discussed with Stewart 

orders or business “in the tens of millions” and a profit margin of thirty percent. 

They discussed “Two and a half million dollars in revenue with $750,000 in profit 

for the first year.” At another meeting, Cornwell and McKinney said they could start 

the business with $180,000 to get the necessary equipment and secure the space. 

Once they got new business, there would be a down payment on the work, “so you 

have cash flow that automatically comes in.” Regarding ownership, Stewart was to 

receive a twenty-percent interest for “that one $180,000.” Stewart gave Cornwell 

and McKinney each a check for $15,000 in return for twenty-percent ownership and 

a return based on the “$750,000 in profit the first year, two and a half million dollars 

in sales.” Stewart also gave Cornwell a $150,000 check to secure premises for the 

business and buy equipment. Stewart testified they “never talked about them having 

any kind of huge salary because there was no way that you could ever do the numbers 

to justify that.” Specifically, Stewart testified he did not agree that Cornwell and 

McKinney could each be paid $180,000 per year, and he did not agree on a specific 

amount for Cornwell’s and McKinney’s salaries. 

As part of the investment, Cornwell and McKinney provided Stewart a 

Branding Plan that memorialized in writing “some of the most significant things that 

we both agreed on and thought this would be important.” The Plan discussed filling 
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a “void in the current VIP aviation marketplace” for cabinetry and galleys by 

“starting our business debt-free and having long-term reoccurring business.” The 

Plan contained a “three-year financial projection sales of two and a half million, net 

profit $750,000.” The Plan stated, “we can meet our competitors [sic] prices if we 

want to because we will have less overhead and no debt.” 

In August 2015, Stewart agreed to fund money for projects that were delayed 

and for equipment, and he told Cornwell and McKinney they would have to increase 

the percentage of interest that he and Diana had. In an email, Cornwell and 

McKinney agreed to give Stewart and Diana a sixty percent interest and take a 

twenty percent interest each. Stewart testified this agreement was not formalized. 

According to what Cornwell and McKinney were telling Stewart, in August 2015 

“Everything from a profit margin and from the revenue side was going as expected.” 

Stewart testified that, in December 2015, TBL Staffing was started at the 

request of Cornwell and McKinney and was funded by The Benefit Link. Stewart 

testified the idea was to “create a profit center” by providing staffing to Legacy that 

Legacy would have to pay for anyway. For “maybe the first few weeks,” Legacy 

paid for the staffing provided by TBL Staffing, but “after that, they didn’t pay 

anymore.” McKinney came to Stewart and said he had “a payment that’s missing 

again” and asked Stewart to “bail us out.” Stewart “agreed to put more money in” 

and put in $85,000. About two weeks later, McKinney needed money to bid a new 
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project. Stewart agreed to advance more money but told Cornwell and McKinney 

they would “have to revisit the equity structure again.” 

Over the next few months, Cornwell and McKinney did not pay TBL Staffing 

and, by April 2016, Legacy owed TBL Staffing “about $625,000.” Stewart was 

“really upset” and “wrote a very terse letter” to Cornwell and McKinney telling them 

to “please go ahead and straighten up.” Cornwell and McKinney told Stewart they 

were “going to get some kind of payment plan worked out by TBL,” and Stewart 

was “comfortable going forward.” Stewart also told Cornwell and McKinney he 

“needed to see all the checks or any withdrawals out of the account and any deposits 

coming in, because [he] had virtually no clue what was going on.” In response, 

Stewart received emails containing “some” of the information, but he “did not 

receive all of the expenses.” For a couple of months, the emails continued but 

Cornwell and McKinney then told Stewart “they got a little too busy to be able to do 

this anymore.” TBL Staffing was shut down and, at that time, Legacy owed TBL 

Staffing $625,747. Stewart testified this amount came from The Benefit Link and 

Diana and Stewart. 

Throughout 2016, Stewart met with Cornwell and McKinney once or twice a 

month, and Cornwell “would put up a spreadsheet” on cash flow, projects in 

progress, and costs. However, “there were no documents that were given.” 

Regarding profit margins, Stewart still understood “what they told me, which was 

everything was 30 percent.” In August 2016, McKinney had gone to a “women-
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owned, small business administration conference” and met somebody from Bell 

Helicopter and learned of “a set-aside contract for women-owned or, at least, for 

small business.” Cornwell and McKinney asked Stewart to “switch over all the 

ownership directly into Diana’s name” and “kind of change the entire partnership to 

reflect that to get a signed agreement.” Cornwell sent Stewart a text on August 16 

saying that the solicitation on the Bell Helicopter contract was due on August 17 or 

18 and asking Stewart to “get these documents done.” On August 17, 2016, the 

parties signed an agreement “reflecting that Diana was now 80 percent shareholder,” 

Stewart was “zero,” and Cornwell and McKinney “were 10 percent each.” 

At this same time, Cornwell and McKinney again asked for more money “to 

clean up some of the other projects that they had” before “gear[ing] up for the 

government contracting part.” Stewart agreed to give Cornwell and McKinney more 

money. Later in August, “because this was a done deal, according to [McKinney], 

the $111 million contract, [Cornwell and McKinney] had asked if they could earn 

back an additional 10 percent.” Stewart testified he and Diana were “ecstatic 

knowing that we could have something that could actually give us return on money 

we invested now for a considerable amount of time and not received anything.” 

Stewart knew that both Cornwell and McKinney wanted to lose weight, so Stewart 

said to them, “what if we just say in January, if you guys have lost this weight, you 

guys can get your additional 10 percent.” The weight loss agreement was made a 

part of a signed agreement. 
 –14– 

By October 2016, Cornwell and McKinney were “bidding on Department of 

Defense stuff” and “got really, really busy,” so Stewart asked Lynch to “come in and 

take a look and help.” Lynch “had a background in really turning things around,” 

and Lynch was able to run some advertisements and “get some candidates in to send 

over to Legacy” to help. One of the candidates was Young. As Lynch worked on a 

budget with Cornwell, Cornwell provided Lynch with spreadsheets that Stewart 

“was familiar with seeing.” However, these spreadsheets, for the first time, showed 

Cornwell’s and McKinney’s salaries. Lynch “couldn’t make any sense of the 

numbers when she was looking at it.” At one time, “the accounts payable would be 

$30,000,” and the “next time it was $300,000,” then “it worked its way up to 900-

and-some-odd thousand, and finally a million-one.” 

Also in October, Stewart advanced Cornwell and McKinney another $70,000 

“for labor and materials on a job that they were getting.” As part of making Legacy 

a woman-owned business, McKinney went to the bank to add Diana and Stewart as 

signatories on Legacy’s checking account. Prior to October 2016, Stewart did not 

have access to the checking account. Stewart accessed Legacy’s bank account and 

found “a number of charges that were questionable.” 

Stewart testified he and Diana invested a total of $1,793,102 in Legacy. 

Stewart did not know about “the $15,000 each [Cornwell and McKinney] took out a 

month” and only learned of the payments in discovery. Stewart also learned 

Cornwell and McKinney had a debit card that “they were charging all kinds of 
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things” on, including “Pediatric dentists, $2,000 Kroger bills, $2,000 hotel bills, 

$800 dinners, all sorts of personal things.” 

In late October 2016, McKinney called Stewart to tell him the Bell Helicopter 

deal was not going to happen. At a subsequent meeting, Stewart presented Cornwell 

and McKinney with a promissory note after working with his attorney to “draft 

something up trying to figure out if [Cornwell and McKinney] would be 

accountable.” Stewart testified that, even though the amount of the promissory note 

was $3.5 million, “it was really just a negotiating point.” Stewart arrived at the $3.5 

million figure by adding together the “million and a half” the Scothorns had invested 

and the approximately $2 million Legacy had “in terms of revenue.” Cornwell and 

McKinney said they would get an attorney to look at the promissory note, and 

Stewart agreed. After going to see an attorney, Cornwell and McKinney “came back 

and said we are not going to sign any note in any way.” Stewart told Cornwell and 

McKinney there had to be “some document” showing they “were involved in this 

process,” and it had to be a promissory note. Stewart said he did not care what the 

amount of the note was, and he told Cornwell and McKinney to “go ahead and figure 

that out.” Stewart testified he never reached an agreement with Cornwell and 

McKinney. 

When asked if he owed a fiduciary duty to Legacy, Stewart testified that, from 

August 17, 2016 when he signed a document making him chief financial officer of 

Legacy until November 22 when he resigned, “the title of chief financial officer 
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owed a fiduciary duty, but I did not have any of the documents or the ability to 

operate in that position given the information that I had.” When asked what he was 

asserting in the lawsuit that Cornwell and McKinney did wrong, Stewart responded: 

They did not–they had a fiduciary duty to the company and to its 

shareholders, and they breached that in many ways by not operating the 

company in its best interest. They were definitely working on their own 

self interest, making sure that they got paid. If you wanted to walk 

through each one of the statements and look, you can notice, you know, 

there were other things that obviously didn’t get paid if you had a 

million dollars in payables, but you did pay yourself. And none of that 

makes sense when you’re a president and CEO of a accompany. You 

have an obligation to make sure that the company is operating at its 

best, and let the shareholder know what’s going on. I had no clue what 

was going on until we got [Lynch] involved. That was never any

information that was given to me. That’s something that should be on 

the forefront at all points in time. But I also would never have invested 

the first dime had I known this was the kind of integrity. 

Now, I mean, I don’t think that I had any of that information. It’s kind 

of like I didn’t know what I didn’t know, but I do know what I know 

now. And I believed what they told me before. I believed everything 

that they said was true. It all made sense to me. They just continued to 

induce us to go ahead and put more money in, based on what they told 

us was happening in the business, and, in fact, that was not the case. 

Stewart testified he and Diana sought to recover $1,793,102. 

 On cross-examination, Stewart agreed the document he signed made him chief 

financial officer retroactively from the inception of the company. Stewart admitted 

he received an email on August 17, 2016, from the accountant for Legacy and The 

Benefit Link containing a correction to form 1125-E that was being provided to the 

IRS. The form was titled “Compensation of Officers” and showed Cornwell was 

paid $120,000 and McKinney was paid $119,000. Stewart testified he “never saw 
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this document.” Stewart testified that, “if [Cornwell and McKinney] requested pay, 

they got paid.” 

 Allyn Needham, an economic consultant, performed a lost profits analysis on 

Legacy. Relying on a projection of five years’ worth of future sales for Legacy 

provided by McKinney, Needham testified Legacy lost between $7 million and $9 

million in profits over a five-year period from 2017 to 2021. Needham testified that 

Legacy never made any profit, and Legacy did not have any money to keep operating 

unless the Scothorns or someone put money in. In response to questioning, 

Needham agreed that the Scothorns never got a return on their investment in Legacy. 

 The jury found the Scothorns substantially relied to their detriment on 

promise(s) made by Cornwell and McKinney, this reliance was foreseeable by 

Cornwell and McKinney, and the Scothorns were entitled to damages of 

$201,318.04. The jury also found Stewart did not comply with his fiduciary duties 

owed to legacy while he was chief financial officer of Legacy, but Stewart’s conduct 

was excused. The jury found Stewart committed fraud against Cornwell and 

McKinney, his fraud was not excused, and McKinney was entitled to $9427.86 in 

out-of-pocket damages and $8000 in damages for loss of credit reputation. 

 In April 2018, the trial court entered a final judgment awarding the Scothorns 

$183,890.18, a sum the court arrived at by subtracting the damages awarded to 

McKinney, $17,427.86, from the damages awarded to the Scothorns, $201,318.04. 
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The judgment also awarded the Scothorns their costs against Cornwell and 

McKinney. 

 Cornwell and McKinney filed a motion for new trial asserting the jury’s fraud 

and breach of fiduciary duty findings against Stewart negated or barred the finding 

of promissory estoppel against Cornwell and McKinney, the evidence was legally 

and factually insufficient to support the jury’s findings , and the trial court erred in 

failing to award Cornwell and McKinney equitable relief and in awarding costs 

against Cornwell and McKinney. Cornwell and McKinney also filed a motion to 

modify the final judgment in which they argued, among other things, the Scothorns 

were not entitled to recover expenses of litigation, including postage, photocopies, 

and delivery services. The trial court granted Cornwell and McKinney’s motion in 

part, reduced the costs awarded to the Scothorns by $184, and denied the motion in 

all other respects. This appeal followed. 

 In their first issue, Cornwell and McKinney argue the trial court erred by 

including the jury’s promissory estoppel finding and associated damages against 

them when the jury’s fraud and fiduciary duty findings against Stewart negate the 

finding of promissory estoppel against Cornwell and McKinney. In particular, 

Cornwell and McKinney argue the Scothorns “should not be allowed to benefit all 

the while participating in fraud against” Cornwell and McKinney. Cornwell and 

McKinney, in a single sentence, assert that “the same argument can be made 

regarding the finding that Appellee Stewart Scothorn breached his fiduciary duty.” 
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In support of their assertions in their first issue, Cornwell and McKinney cite 

one case: El Paso Healthcare System, Ltd. v. Piping Rock Corp., 939 S.W.2d 695 

(Tex. App.—El Paso 1997, writ denied). In that case, El Paso Healthcare System 

(EPHS) sought to develop a medical office building and enlisted the help of Piping 

Rock, a developer. Id. at 697. The parties entered an agreement providing that 

Piping Rock would execute an agreement to purchase the land for the proposed 

building from EPHS and then contribute the land to the partnership as its capital 

contribution. Id. For its contribution, EPHS agreed to execute a Build and Lease 

Agreement under which it would lease all of the office space from the partnership 

upon completion of the building. Id. The agreement required Piping Rock to obtain 

and close a nonrecourse short-term construction loan no later than April 1, 1990. Id.

at 698. The construction loan was to fund all costs of building construction. Id.

Piping Rock had the option to terminate the partnership without liability if the 

construction loan and the purchase of the land were not accomplished by April 1, 

1990. Id. Piping Rock never obtained the construction loan, nor did it close the land 

purchase contract. Id. The parties nevertheless continued to work on the project 

together. Each party claims that the other induced it to continue. Id. at 699. EPHS 

presented evidence that it allowed Piping Rock to stay on the project because Piping 

Rock continually represented that it was close to closing a construction loan. Id. 

EPHS asserted that it agreed to temporarily fund construction costs after April 1, 

1990, not because it wanted to induce Piping Rock to complete the project without 
 –20– 

financing, but in reliance and anticipation on forthcoming financing. Id. Piping 

Rock presented evidence that after April 1, 1990, EPHS asked Piping Rock to 

continue with the construction even though there was no loan in place and agreed to 

fund the construction costs, including Piping Rock’s costs, in order to complete the 

project. Id. Several Piping Rock requests to EPHS, dated after April 1, 1990, for 

payment of significant construction costs incurred, including Piping Rock’s 

developer overhead, provided evidence that Piping Rock relied to its detriment on 

EPHS’s promise to pay construction costs. Id. 

Piping Rock filed suit against EPHS alleging, among other things, a 

promissory estoppel claim. Id. at 698. EPHS counterclaimed against Piping Rock 

for breach of the Agreement, fraudulent inducement, negligent misrepresentation, 

intentional interference with contract and breach of fiduciary duty. Id. The jury 

found that Piping Rock breached the Agreement and intentionally interfered with 

EPHS’s contract to sell the medical office building but found no damages for EPHS 

on either cause of action. Id. The jury found for Piping Rock on its promissory 

estoppel claim and awarded $440,000 in damages for Piping Rock’s developer 

overhead and $48,000 in costs for clearing a “staging area” next to the construction 

site. Id. The jury failed to find for either party on any other cause of action. Id.

On appeal, EPHS argued, among other things, that the doctrine of unclean 

hands barred Piping Rock from recovering on its promissory estoppel claim. Id. at 

700. In making this argument, EPHS pointed to the jury’s findings that Piping Rock 
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breached the original Agreement and that Piping Rock interfered with EPHS’s 

contracts to sell the medical office building. Id. The court noted it was undisputed 

that Piping Rock failed to obtain financing as required in the Agreement. Id. The 

court then stated the following, which Cornwell and McKinney quote in their brief: 

A party may not predicate an estoppel in his favor on, or assert such 

estoppel for the purpose of making effective, obtaining the benefit of, 

or shielding himself from the results of his own fraud, and, similarly, 

he may not do so with respect to his own dereliction of duty, violation 

of law, wrongful act, or other inequitable conduct in the transaction in 

question. 

Id. However, the court noted, Piping Rock was not seeking to enforce favorable 

provisions of the contract the jury found it had breached. Id. Instead, Piping Rock 

was seeking to enforce promises EPHS allegedly made outside the agreement. Id. 

The court had already found evidence in the record sufficient to determine that 

EPHS’s promises were made to induce Piping Rock to remain on the project despite 

any breach. Id. The court determined that an equitable unclean hands defense could 

not be based on the very breach EPHS essentially excused by making the subject 

promises in order to keep Piping Rock on the job. Id. The court concluded that 

enforcing Piping Rock’s equitable promissory estoppel claims in this context did not 

offend equity. Id. 

 Thus, Piping Rock addressed whether an unclean hands defense barred 

recovery on a promissory estoppel claim. Piping Rock does not stand for the 

proposition that Stewart’s fraud in this case negated the Scothorns’ promissory 

estoppel claims. See id. To the extent the jury found Stewart committed fraud and 
 –22– 

damaged McKinney $9427.86 in out-of-pocket damages and $8000 in damages for 

loss of credit reputation, we cannot conclude this finding precluded the jury from 

also finding that the Scothorns were entitled to damages of $201,318.04 on their 

promissory estoppel claim against Cornwell and McKinney. See id. As to Cornwell 

and McKinney’s argument that “the same argument can be made” regarding the 

jury’s finding that Stewart breached his fiduciary duty, we note that the jury found 

Stewart’s breach of fiduciary duty was excused, and Stewart breached a fiduciary 

duty owed to Legacy, not Cornwell and McKinney. We overrule Cornwell and 

McKinney’s first issue. 

 In their second issue, Cornwell and McKinney argue the evidence is legally 

and factually insufficient to support the jury’s answer to Question 16 regarding 

promissory estoppel. Specifically, Cornwell and McKinney argue there is no 

evidence that they “would provide a return to [the Scothorns] of the funds advanced, 

that the funds advanced would only be used for initial operations, or that Legacy 

would not incur debt.” 

In determining whether there is legally sufficient evidence to support the 

jury’s decision, we view the evidence in the light most favorable to the verdict, 

crediting favorable evidence if reasonable jurors could, and disregarding contrary 

evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 

802, 807 (Tex. 2005); Lamajak, Inc. v. Frazin, 230 S.W.3d 786, 793 (Tex. App.—

Dallas 2007, no pet.). To evaluate the factual sufficiency of the evidence supporting 
 –23– 

the finding, we consider all the evidence and will set aside the verdict only if the 

evidence supporting the jury finding is so weak or so against the overwhelming 

weight of the evidence that the finding is clearly wrong and unjust. See Cain v. Bain, 

709 S.W.2d 175, 176 (Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 

1985); Lamajak, 230 S.W.3d at 793. 

The elements of a promissory estoppel claim are (1) a promise, (2) 

foreseeability of reliance thereon by the promisor, and (3) substantial detrimental 

reliance by the promisee. Trevino & Assocs. Mech., L.P. v. Frost Nat. Bank, 400 

S.W.3d 139, 146 (Tex. App.—Dallas 2013, no pet.); see English v. Fischer, 660 

S.W.2d 521, 524 (Tex. 1983); Fretz Constr. Co. v. S. Nat’l Bank of Houston, 626 

S.W.2d 478, 480 (Tex. 1981). To show detrimental reliance, the plaintiff must 

demonstrate that he materially changed his position in reliance on the promise. 

Trevino, 400 S.W.3d at 146; see English, 660 S.W.2d at 524 (finding no promissory 

estoppel when plaintiff could not show he would not have taken his detrimental 

actions if defendant had not made promise). 

Cornwell and McKinney assert, in part, that a “fourth element” of promissory 

estoppel must be proven: that injustice can be avoided only by enforcing the 

defendant’s promise, citing Collins v. Walker, 341 S.W.3d 570, 573–74 (Tex. 

App.—Houston [14th Dist.] 2011, no pet.) (elements of promissory estoppel are: (1) 

a promise, (2) foreseeability of reliance by the promisor, (3) substantial and 
 –24– 

reasonable reliance by the promisee to its detriment, and (4) enforcing the promise 

is necessary to avoid injustice). 

Question 16 of the jury charge asked, “Did the Scothorns substantially rely to 

their detriment on promise(s) made by any of those listed below, and was this 

reliance foreseeable by that person?” The jury answered “Yes” for both Cornwell 

and McKinney. Cornwell and McKinney did not object to the jury charge question 

on promissory estoppel. To preserve an appellate complaint premised on a defective 

jury charge, a party must “point out distinctly the objectionable matter and the 

grounds of the objection.” TEX. R. CIV. P. 274. “Any complaint as to a question, 

definition, or instruction, on account of any defect, omission, or fault in pleading, is 

waived unless specifically included in the objections.” Id. If a party fails to lodge 

an objection to the jury charge that timely and plainly makes the trial court aware of 

the complaint, error is not preserved and the complaint is waived on appeal. Ford 

Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007); see also TEX. R. CIV. P. 278. 

Because Cornwell and McKinney failed to object to the jury charge question on 

promissory estoppel, their argument concerning a “fourth element” is waived. See

TEX. R. CIV. P. 274. 

Stewart testified Cornwell and McKinney discussed orders or business “in the 

tens of millions,” a profit margin of thirty percent, and “Two and a half million 

dollars in revenue with $750,000 in profit for the first year.” Cornwell and 

McKinney said they could start the business with $180,000 to get the necessary 
 –25– 

equipment and secure the space. Once they got new business, there would be a down 

payment on the work, “so you have cash flow that automatically comes in.” 

Regarding ownership, Stewart was to receive a twenty-percent interest for “that one 

$180,000.” Stewart gave Cornwell and McKinney each a check for $15,000 in 

return for twenty-percent ownership and a return based on the “$750,000 in profit 

the first year, two and a half million dollars in sales.” Stewart also gave Cornwell a 

$150,000 check to secure premises for the business and buy equipment. Stewart 

testified they “never talked about them having any kind of huge salary because there 

was no way that you could ever do the numbers to justify that.” Stewart testified he 

did not agree that Cornwell and McKinney could each be paid $180,000 per year, 

and he did not agree on a specific amount for Cornwell’s and McKinney’s salaries. 

Cornwell and McKinney provided Stewart a Branding Plan that memorialized 

in writing “some of the most significant things that we both agreed on and thought 

this would be important.” The Plan discussed filling a “void in the current VIP 

aviation marketplace” for cabinetry and galleys by “starting our business debt-free 

and having long-term reoccurring business.” The Plan contained a “three-year 

financial projection sales of two and a half million, net profit $750,000.” The Plan 

stated, “we can meet our competitors [sic] prices if we want to because we will have 

less overhead and no debt.” 

Based on Cornwell and McKinney’s promises, the Scothorns ultimately 

advanced more than $1.7 million in cash. Although the Scothorns never received 
 –26– 

any money from Cornwell, McKinney, or Legacy, Cornwell and McKinney paid 

themselves $15,000 a month without telling the Scothorns. We conclude this 

evidence was legally and factually sufficient to support the jury’s answer to Question 

16 regarding promissory estoppel. City of Keller, 168 S.W.3d at 807; Cain, 709 

S.W.2d at 176; English, 660 S.W.2d at 524. We overrule Cornwell and McKinney’s 

second issue. 

In their third issue, Cornwell and McKinney argue the evidence is insufficient 

to support the jury’s affirmative answer to Question 19, which asked whether 

Stuart’s breach of fiduciary duties owed to Legacy was excused. Question 19 also 

provided the following instruction: 

A party’s conduct is excused if the other party is estopped from 

complaining about the unauthorized conduct. A party is estopped from 

complaining of the unauthorized conduct if when, with knowledge of 

the facts has [sic] so conducted himself as to lead the other party to 

believe that he would not have acted as he did. 

Cornwell and McKinney argue “there is a lack of legal and factual sufficiency of the 

evidence with regards to question number 19 of the Charge of the Court.” In support 

of this argument, Cornwell and McKinney argue courts have held that “[e]stoppel 

arises where, by the fault of one, another is induced to change his or her position for 

the worse,” citing Avary v. Bank of America, N.A., 72 S.W.3d 779, 788 (Tex. App.—

Dallas 2002, no pet.). Cornwell and McKinney cite Avary in asserting the elements 

of an estoppel defense are (i) a false representation or concealment of material facts, 

(ii) made with knowledge, actual or constructive, of those facts, (iii) with the 
 –27– 

intention that it should be acted on, (iv) to a party without knowledge or means of 

obtaining knowledge of the facts, (v) who detrimentally relies on the representations. 

Id. Cornwell and McKinney argue there is no evidence Stewart’s conduct in which 

he failed to comply with his fiduciary duties changed his position for the worse based 

upon the actions of Cornwell and McKinney. Further, they argue the testimony 

shows there were numerous meetings between Stewart and Cornwell and McKinney, 

and all major decisions were made with Stewart’s approval. 

Thus, Cornwell and McKinney rely on the elements of an “estoppel defense” 

in making their arguments. However, as the Scothorns point out, Question 19 

submitted the defense of quasi estoppel. Quasi-estoppel is a term applied to certain 

legal bars, such as ratification, election, acquiescence, or acceptance of benefits. 

Forney 921 Lot Dev. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 

268 (Tex. App.—Dallas 2011, pet. denied); Steubner Realty 19, Ltd. v. Cravens 

Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.—Houston [14th Dist.] 1991, no 

writ). It is a long-standing doctrine applied to preclude contradictory positions: it 

precludes a person from asserting, to another’s disadvantage, a right inconsistent 

with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 

S.W.3d 857, 864 (Tex. 2000); see Schauer v. Von Schauer, 138 S.W. 145, 149–50 

(Tex. Civ. App.—Austin 1911, writ ref’d) (“Where a person has, with knowledge of 

the facts, acted or conducted himself in a particular manner, or asserted a particular 

claim, title, or right, he cannot afterwards assume a position inconsistent with such 
 –28– 

act, claim or conduct to the prejudice of another.”). The doctrine applies when it 

would be unconscionable to allow a person to maintain a position inconsistent with 

one in which he acquiesced. Lopez, 22 S.W.3d at 864; Atkinson Gas Co. v. Albrecht, 

878 S.W.2d 236, 240 (Tex. App.—Corpus Christi-Edinburg 1994, writ denied); 

Vessels v. Anschutz Corp., 823 S.W.2d 762, 765–66 (Tex. App.—Texarkana 1992, 

writ denied). Unlike equitable estoppel, quasi-estoppel does not require a showing 

of a false representation or detrimental reliance. Forney 921, 349 S.W.3d at 268; 

Steubner Realty 19, Ltd., 817 S.W.2d at 164. 

Stewart testified that, from August 17, 2016, when he signed a document 

making him chief financial officer of Legacy until November 22 when he resigned, 

“the title of chief financial officer owed a fiduciary duty, but I did not have any of 

the documents or the ability to operate in that position given the information that I 

had.” The document Stewart signed made him chief financial officer retroactively 

from the inception of the company. However, Stewart testified he “had no clue what 

was going on until we got [Lynch] involved.” Stewart believed everything that 

Cornwell and McKinney said was true, and they continued to induce the Scothorns 

to put more money into Legacy. 

Throughout 2016, Stewart met with Cornwell and McKinney once or twice a 

month, and Cornwell “would put up a spreadsheet” on cash flow, projects in 

progress, and costs. However, “there were no documents that were given.” 
 –29– 

Regarding profit margins, Stewart still understood “what they told me, which was 

everything was 30 percent.” 

Prior to October 2016, Stewart did not have access to Legacy’s checking 

account. Stewart accessed Legacy’s bank account and found “a number of charges 

that were questionable.” Stewart did not know about “the $15,000 each [Cornwell 

and McKinney] took out a month” and only learned of the payments in discovery. 

Stewart also learned Cornwell and McKinney had a debit card that “they were 

charging all kinds of things” on, including “Pediatric dentists, $2,000 Kroger bills, 

$2,000 hotel bills, $800 dinners, all sorts of personal things.” 

Thus, although the record shows Stewart did not fulfill his fiduciary duties to 

Legacy, the record also shows that Cornwell and McKinney concealed financial 

information from Stewart and made false representations concerning Legacy’s fiscal 

condition that Stewart relied on to his detriment. Stewart and Diana invested a total 

of $1,793,102 in Legacy, and they did not receive any return on their investment in 

Legacy. Thus, even accepting Cornwell and McKinney’s framing of the issue, there 

was sufficient evidence establishing that estoppel excused Stewart’s breach of his 

fiduciary duty to Legacy. See Avary, 72 S.W.3d at 788. More to the point, the 

evidence was legally and factually sufficient to support the jury’s answer to Question 

19 on the basis of quasi estoppel. See City of Keller, 168 S.W.3d at 807; Cain, 709 

S.W.2d at 176; Forney 921, 349 S.W.3d at 268; Steubner Realty 19, Ltd., 817 

S.W.2d at 164. We overrule Cornwell and McKinney’s third issue.
 –30– 

In their fourth issue, Cornwell and McKinney argue the trial court erred in not 

awarding them equitable relief based on the jury’s finding Stewart breached his 

fiduciary duty. A trial court’s decision regarding equitable relief is reviewed under 

an abuse of discretion standard and may only be overturned if the decision was 

arbitrary or unreasonable. Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 742 

(Tex. 2018). Specifically, Cornwell and McKinney argue the Scothorns “emptied 

Legacy’s bank account in the amount of $47,000,” and they should have been 

awarded this amount as equitable relief. Cornwell and McKinney ignore the fact 

that the jury found Stewart did not fulfill his fiduciary duty to Legacy, not to them, 

and the jury correctly found Stewart’s breach of fiduciary duty was excused. Under 

these circumstances, we cannot conclude the trial court abused its discretion in not 

awarding Cornwell and McKinney $47,000 in equitable relief. We overrule 

Cornwell and McKinney’s fourth issue. 

In their fifth issue, Cornwell and McKinney argue the evidence is legally and 

factually insufficient to support the jury’s answer to Question 8, which asked 

whether they committed fraud against the Scothorns. Again, Cornwell and 

McKinney ignore the fact that the jury also found their fraud was excused. Further, 

the trial court’s judgment does not refer to the jury’s finding that Cornwell and 

McKinney committed fraud or make any award based on the finding of fraud. 

A trial court may disregard a jury finding only if it is unsupported by evidence, 

a condition not met in this case, or if the issue is immaterial. Spencer v. Eagle Star 
 –31– 

Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) (citing C. & R. Transport, Inc. v. 

Campbell, 406 S.W.2d 191, 194 (Tex. 1966)). A question is immaterial when it 

should not have been submitted, or when it was properly submitted but has been 

rendered immaterial by other findings. Id.; Chambers v. Equity Bank, SSB, 319 

S.W.3d 892, 902 n.15 (Tex. App.—Texarkana 2010, no pet.) (where questions 

disregarded by trial court were rendered immaterial by jury’s other finding, court 

would not address sufficiency of evidence in support of jury’s answers to those 

questions). Here, the jury’s finding that Cornwell and McKinney committed fraud 

was rendered immaterial by the jury’s finding that the fraud was excused, and the 

trial court properly disregarded the finding of fraud and did not incorporate that 

finding into the final judgment. See Spencer, 876 S.W.2d at 157. Accordingly, we 

need not address the sufficiency of the evidence to support the finding of fraud. See 

Chambers, 319 S.W.3d 892, 902 n.15. We overrule Cornwell and McKinney’s fifth 

issue. 

In their sixth issue, Cornwell and McKinney argue the trial court erred in 

awarding costs against them. As a general rule, the successful party to a suit shall 

recover of his adversary all costs incurred therein. TEX.R.CIV. P. 131. A successful 

party is one who gets a judgment from a competent court vindicating a civil claim 

of right. Hasty Inc. v. Inwood Buckhorn Joint Venture, 908 S.W.2d 494, 502 (Tex. 

App.—Dallas 1995, writ denied). The allocation of costs is a matter for the trial 

court’s discretion and cannot be overturned on appeal, absent an abuse of discretion. 
 –32– 

Nolte v. Flournoy, 348 S.W.3d 262, 270 (Tex. App.—Texarkana 2011); Madison v. 

Williamson; 241 S.W.3d 145, 157 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied). 

In making their argument, Cornwell and McKinney renew their argument that 

the breach of fiduciary duty finding against Stewart negated the finding against them 

for promissory estoppel and point out that they prevailed in a summary judgment 

proceeding prior to trial. We have already rejected the argument that Stewart’s 

breach of fiduciary duty negated the promissory estoppel finding against Cornwell 

and Scothorn. Further, in this proceeding, the jury found the Scothorns’ damages 

were $201,318.04, McKinney was entitled to $9427.86 in out-of-pocket damages 

and $8000 in damages for loss of credit reputation, and the trial court entered a final 

judgment awarding the Scothorns $183,890.18. Under these circumstances, we 

conclude the trial court did not abuse its discretion in awarding the Scothorns their 

costs. See Nolte, 348 S.W.3d at 270; Madison; 241 S.W.3d at 157. We overrule 

Cornwell and McKinney’s sixth issue. 

In their seventh issue, Cornwell and McKinney argue the trial court erred in 

awarding the amount of costs submitted in the Scothorns’ amended bill of cost. 

Specifically, Cornwell and McKinney argue $773.50 for legal document services 

was an expense of litigation that was not recoverable. At oral argument, counsel for 

the Scothorns agreed to the $773.50 reduction in costs. Accordingly, we sustain 

Cornwell and McKinney’s seventh issue. 
 –33– 

In their eighth issue, Cornwell and McKinney argue the evidence conclusively 

establishes the jury’s award of damages is excessive. In support of this issue, 

Cornwell and McKinney submit a single sentence: “Based upon the arguments 

above, the jury’s award of $201,318.04 against Appellants is excessive based on the 

evidence presented at trial.” An appellant’s failure to cite legal authority or provide 

substantive analysis of a legal issue results in waiver of the complaint. Fredonia 

State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). 

Accordingly, we need not further address Cornwell and McKinney’s eighth issue. 

In their ninth issue, Cornwell and McKinney argue the trial court erred in 

denying their motion for new trial. Again, aside from citing authority for the 

propositions that (1) “denying a motion for new trial is appealable” and (2) the 

standard of review is abuse of discretion, Cornwell and McKinney fail to provide 

any substantive analysis of the issue other than the assertion that the trial court erred 

“for the reasons set forth in the above sections.” We conclude Cornwell and 

McKinney have also waived this complaint. See id. We need not further address 

Cornwell and McKinney’s ninth issue. 

We reform the trial court’s judgment to delete the award of $773.50 in costs 

to the Scothorns. As modified, we affirm the trial court’s judgment. 

180799F.P05 

/Robert D. Burns, III/ 

ROBERT D. BURNS, III 

CHIEF JUSTICE 
 –34– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JONATHAN CORNWELL AND 

SHADD MCKINNEY, Appellants 

No. 05-18-00799-CV V. 

DIANA SCOTHORN, STEWART 

SCOTHORN, THE BENEFIT LINK, 

INC., AND SCOTHORN AERO, 

INC., Appellees 

 On Appeal from the 429th Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 429-05287-

2016. 

Opinion delivered by Chief Justice 

Burns. Justices Molberg and PartidaKipness participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is MODIFIED as follows: 

the award of $773.50 in costs to Diana Scothorn and Stewart Scothorn 

is deleted. 

It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED. 

 It is ORDERED that appellees Diana Scothorn, Stewart Scothorn, The 

Benefit Link, Inc., and Scothorn Aero, Inc. recover their costs of this appeal from 

appellants Jonathan Cornwell and Shadd McKinney. 

Judgment entered this 17th day of September 2020.