dissenting.
I respectfully dissent because there is no evidence that the condition precedent to the memorandum of agreement has been met, and there is no evidence to support Vaglica’s claim of fraud. The majority’s determination that the condition precedent to the memorandum of agreement has been met is based upon an assumption of a loss on the MT. WASHINGTON job in the amount of $408,216, despite Vaglica’s testimony that the amount of loss was $700,-000. Vaglica did not rely on the exhibits cited by the majority to urge that the loss was only $408,716; he conceded at trial and in this appeal that the loss was $700,-000. Rather than relying on the exhibits cited by the majority, Vaglica refers us to a recovery of $409,000 from the retainer on the job. The difficulty with that argument is that Vaglica testified at trial that the retainer had been received and that “as we stand here today” the MT. WASHINGTON contract had a loss of $700,000. If Vaglica’s own figure for the loss is substituted for the figure used by the majority, the condition precedent was not met because there was not a profit of $300,000 on the two jobs. I would sustain point of error one.
I would sustain point of error four because there is no evidence that Sipco and Brock did not perform as promised under the memorandum of agreement. The majority’s conclusion to the contrary is based upon its finding that there was sufficient evidence that they did not perform as promised.
I would sustain point of error five because there is no evidence that Brock or Sipco lacked the intent to perform when they entered into the agreement. By the terms of the agreement, neither Brock nor Sipco had any obligation to sell the property in question to Vaglica; the property at *713that time was owned by BET, Sipco’s parent company. Neither Vaglica nor the majority has shown how fraud could be established for lacking an intent to perform an obligation under an agreement that one has no obligation to perform.
Finally, I would sustain point of error six because, in the absence of evidence to support Vagliea’s claim of fraud, there is no basis for exemplary damages. The majority overrules this point of error based upon its finding that there was evidence of fraud. I would reform the judgment to reflect that Plaintiff have and recover only damages in the amount of $72,851.50 against Defendant Century Marine, consisting of $60,000 in actual damages, and the balance as pre-judgment interest on that amount of damages from April 10, 1994, to the date of the trial court’s judgment, and to reflect that Plaintiff take nothing as to Brock or Sipco, with costs of court charged ⅜ to Century Marine and ⅜ to Plaintiff. I would affirm all portions of the judgment as reformed, except that I would remand the issue of reasonable attorney’s fees to the trial court for its determination.