MAJORITY OPINION
KEM THOMPSON FROST, Justice.The dispute in this case arose out of the attorney-client relationship between appel-lee Hoover, Bax & Slovacek, L.L.P. and its former client, appellant George Deutsch. The client challenges the trial court’s judgment awarding attorney’s fees to the law firm based on unpaid legal bills and ordering that he take nothing on his counterclaims against the law firm and the individual attorney who handled his file. We conclude the trial court erred in granting a *184directed verdict against the client as to his claim for fee forfeiture based on alleged breaches of fiduciary duty relating to the law firm’s conflicts of interest. Accordingly, we reverse and remand this case to the trial court for a jury trial on the disputed fact issues regarding this claim and for further proceedings consistent with this opinion.
I. Factual and ProceduRAl Background
Deutsch, a New York real estate investor, had an interest in several partnerships owning property in the Houston area, including Dan-333 Associates (“Dan-333”) and Kirkwood Atrium Associates. Several of Deutsch’s partners filed for bankruptcy in Delaware in 1993, and Deutsch represented himself for over a year in those proceedings. In 1994, in an effort to buy a Houston building being sold by one of the partnerships, Deutsch retained the law firm of Hoover, Bax & Slovacek, L.L.P. (the “Law Firm”) to help him “get the attention” of the bankruptcy trustee. At Deutsch’s request, the Law Firm sought an injunction in state district court in Houston to prevent the sale of the building. As part of that injunction proceeding, Deutsch, represented by the Law Firm, claimed the bankruptcy trustee had no authority to sell the building because the bankruptcy estate included only partnership interests rather than the building itself. The bankruptcy trustee responded with an adversary proceeding against Deutsch and the Law Firm in the Delaware bankruptcy case. All issues in Delaware were tried in 1994, but the bankruptcy court did not issue a final order until January 1998. In that final order, the bankruptcy court assessed $75,000 against Deutsch for embezzlement, awarded him $300,000 in commissions, confirmed some of his partnership interests, and absolved him of any personal liability on a purported breach of promise to purchase the Houston building.
Meanwhile, in August 1997, the Law Firm sued Deutsch for unpaid legal bills of more than $67,000. In November 1998, Deutsch filed a counterclaim against the Law Firm, and in the same proceeding, also asserted claims against David Wad-dell, the Law Firm attorney who had handled his file. Deutsch alleged negligence, breach of contract, breach of fiduciary duty, negligent misrepresentation, violations of the Deceptive Trade Practices Act (“DTPA”), and fraud.
After the close of all the evidence at trial, the Law Firm moved for a directed verdict on various grounds, including statute of limitations. Because the Law Firm had not asserted limitations as an affirmative defense in its pleadings, the Law Firm also sought leave to amend its answer to assert the statute-of-limitations defense. The trial court granted the Law Firm’s motion for leave and also granted its motion for directed verdict.1 The trial court *185indicated that the statute of limitations barred all of Deutsch’s claims except for his negligence claim.2 The trial court then submitted the case to the jury in two broad-form questions, asking: (1) What fees (if any) Deutsch owed the law firm? and (2) Whose negligence (if any) proximately caused injury to Deutsch? The jury found Deutsch’s own negligence caused his injuries, and awarded the Law Firm $61,055.95 for unpaid bills, plus attorney’s fees incurred in bringing the collection suit. Deutsch appeals from this judgment as to the Law Firm only.
II. Issues PResented
Challenging the judgment in favor of the Law Firm, Deutsch raises the following issues:
• Did the trial court err in granting the Law Firm leave to file a supplemental answer asserting a statute-of-limitations defense? (second issue)
• Did the trial court err in granting the Law Firm’s motion for directed verdict as to Deutsch’s breach-of-fiduciary-duty claim, including Deutsch’s claim for fee forfeiture? (first and seventh issues)
• Did the trial court err in refusing Deutsch’s requested jury questions regarding the alleged defenses of misrepresentation, legal excuse for breach of contract, and breach of fiduciary duty? (third, fourth, and fifth issues)
• Did the trial court err in granting the Law Firm’s motion for directed verdict as to Deutsch’s claim for exemplary damages? (sixth issue)
• Did the trial court err in granting the Law Firm’s motion for directed verdict as to Deutsch’s claims for breach of contract and attorney’s fees? (eighth, ninth, and tenth issues)
III. Analysis
A. Did Deutsch waive his right to a new trial and did the trial court err by allowing the Law Firm to plead limitations during trial?
As an initial matter, the Law Firm argues that all of Deutsch’s omitted jury issues are barred by a limitations ruling to which he has waived any appeal. After all parties rested at the end of four days of evidence, the Law Firm moved for directed verdict on various grounds, one of which was limitations. When Deutsch objected that the Law Firm had not pleaded limitations, the trial court granted the Law Firm leave to amend, and granted Deutsch’s ensuing motion to amend to plead the discovery rule. On its own motion, the trial court also offered to declare a mistrial; Deutsch declined this offer because of the expense involved in retrying the case.
On appeal, the Law Firm argues Deutsch’s refusal to accept a mistrial constitutes waiver — that he cannot take a peek at the verdict and then ask for the new trial that he earlier refused. Neither party has identified any case directly on point. Texas Rule of Civil Procedure 66, governing trial amendments, suggests a postponement may cure any prejudice from a trial amendment. See Tex.R. Civ. P. 66 (stating court may grant a postponement to enable the objecting party to meet *186trial amendment). But there is nothing in the rule to suggest an offer of a mistrial does so, especially when the trial is virtually completed. A party seeking leave to amend its pleadings after the trial has commenced should not be rewarded by forcing the judge, jury, and opposing party to either acquiesce in the tardy amendment or start over. In this case, the mistrial was the trial court’s suggestion; the Law Firm never agreed to it, and certainly never offered to pay Deutsch’s expenses to try the case a second time. Deutsch’s decision to refuse the trial court’s offer of a mistrial did not amount to a relinquishment of his objection. Accordingly, we hold Deutsch did not waive his complaint concerning the trial amendment.
In addressing the merits of Deutsch’s complaint that the trial court erred in granting the Law Firm leave to file a trial amendment, we begin by making two critical observations: (1) this issue involved questions of surprise and prejudice, and (2) Deutsch objected. Under these circumstances, we review the trial court’s ruling for an abuse of discretion. See Tex.R. Civ. P. 63, 66; Hardin v. Hardin, 597 S.W.2d 347, 350-51 (Tex.1980). In making this determination, we focus on the nature of the amendment and the prejudice, if any, that would result from allowing an amendment. An amended pleading asserting a new defense is not prejudicial as a matter of law; the amendment must be evaluated in the context of the entire case. Stephenson v. LeBoeuf, 16 S.W.3d 829, 839 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). To prevalí, Deutsch must show the Law Firm’s amended answer (1) reshaped the nature of the trial; (2) could not have been anticipated; and (3) prejudiced his presentation of the case. See id.
In each part of his pleading for affirmative relief, Deutsch made the same claims against the Law Firm and Waddell. The Law Firm did not assert a limitations defense, but Waddell did. Consequently, Deutsch had notice of the issues likely to arise with respect to this defense. For this reason, it would be difficult to characterize the limitations defense as one that reasonably could not have been anticipated. Although Deutsch’s counsel claimed both surprise and prejudice in general terms, he did not indicate how the trial was unexpectedly changed when the Law Firm merely sought to add a defense already raised by the individual attorney. We find Deutsch could not have been surprised or prejudiced by the trial amendment. See id.; Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.1990) (requiring party opposing amendment to present evidence of surprise or prejudice). Accordingly, we hold the trial court did not err in granting the trial amendment, and we overrule Deutsch’s second issue.
B. Did the trial court err in granting the Law Firm’s motion for directed verdict as to Deutsch’s breach-of-fiduciary-duty claim, including Deutsch’s claim for fee forfeiture?
In his first and seventh issues, Deutsch asserts the trial court erred in directing a verdict against him as to his breach-of-fiduciary-duty claim, including his claim for fee forfeiture. On appeal, the Law Firm no longer presses limitations, perhaps because there was conflicting evidence as to when Deutsch discovered these claims or because of the common-law tolling rule for clients’ claims against their attorneys. See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 119 (Tex.2001) (holding that, when an attorney commits legal malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on a legal-malpractice claim *187against that attorney is tolled until the terminal point of the underlying litigation); Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex.1994). However, in its motion for directed verdict, the Law Firm asserted other grounds for directed verdict as to Deutsch’s breach-of-fiduciary-duty claim: (1) no evidence of breach of fiduciary duty, (2) impermissible fracturing of a negligence claim, and (3) no damages.
In reviewing the trial court’s granting of a directed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented. Szczepanik, 883 S.W.2d at 649. We consider all of the evidence in the light most favorable to the party against whom the verdict was directed and disregard all contrary evidence and inferences; we give the losing party the benefit of all reasonable inferences created by the evidence. Id. If there is any conflicting evidence of probative value, a directed verdict is improper and the case must be reversed and remanded for jury determination of that issue.3 Id.
In his petition, Deutsch alleged that the Law Firm breached its fiduciary duty by taking the following actions for its own benefit:
(1) misrepresenting the Law Firm’s billing procedures;
(2) failing to counsel and advise Deutsch about the conflicts of interest which arose during the Law Firm’s representation of Deutsch in his Texas state court action and in the adversary proceeding in Delaware;
(3) failing to withdraw from representation of Deutsch once the conflicts arose;
(4) failing to advise Deutsch to retain separate counsel, in light of the Law Firm’s conflicts of interest in representing Deutsch;
(5) failing to counsel and advise Deutsch about the purpose and effect of the indemnity language contained in his engagement letter with the Law Firm;
(6) failing to counsel and advise Deutsch about the ramifications of filing his state court action in violation of the bankruptcy stay and injunction;
(7) failing to confer with Deutsch before misrepresenting to the bankruptcy court that Deutsch had agreed to purchase the Kirkwood Atrium III building, with no contingencies for financing;
(8) failing to counsel and advise Deutsch regarding the ramifications of making representations on the record during the bankruptcy case;
(9) failing to counsel and advise Deutsch regarding the nature of the contested matters in the adversary proceeding and Deutsch’s potential liability for same;
(10) failing to conduct any discovery in the adversary proceeding;
(11) failing to call witnesses at the trial of the adversary proceeding who could have provided testimony in support of Deutsch;
*188(12) failing to file any counterclaims on behalf of Deutsch and/or TriState in the adversary proceeding;
(13) failing to represent Deutsch after receiving an assignment of a portion of Deutsch’s ownership interests for financing;
(14) failing to represent Deutsch in an appeal of the adversary proceeding; and
(15) revealing' matters to the opposing party in the adversary proceeding that were adverse to Deutsch’s position.
1. Was there legally sufficient evidence the Law Firm misrepresented its billing procedures and revealed matters to the opposing party in the adversary proceeding that were adverse to Deutsch’s position?
In items (1) and (15) above, Deutsch alleged that the Law Firm misrepresented its billing procedures and revealed matters to the opposing party in the adversary proceeding that were adverse to Deutsch’s position. We conclude that there was no legally sufficient evidence at trial to support a breach-of-fiduciary-duty claim based on these two allegations.
There was evidence that Deutsch struck out provisions of the Law Firm’s proposed engagement letter which stated that the Law Firm would record its time in quarter-hour increments and that it might bill in excess of the fees reflected by its hourly billing rates. David Waddell testified that he told Deutsch these changes to the engagement letter were acceptable, that he understood the Law Firm was only to bill for actual time worked, and that the Law Firm billed only for actual time worked. Waddell also stated that he did not have a specific conversation with Deutsch about the items that he struck out and that, prior to the filing of Deutsch’s counterclaim against the Law Firm, Deutsch never complained to Waddell about the Law Firm’s billing Deutsch in quarter-hour increments. Joseph Bax, a partner at the Law Firm, testified that the Law Firm’s accounting system was incapable of recording time in any units other than quarter-hour increments. Bax also stated that, if a client had insisted that the Law Firm not bill in quarter-hour increments, then he would have referred the client to other counsel.
Deutsch has not cited, and we have not found, any evidence in the record or reasonable inference therefrom that would support a finding that the Law Firm misrepresented its billing procedures to Deutsch. Even if Waddell agreed that the Law Firm would bill for the precise amount of time worked, rather than in quarter-hour increments, this would only go to the Law Firm’s agreement with Deutsch; it would not be evidence that the Law Firm misrepresented its billing procedures to Deutsch. Likewise, Deutsch has not cited, and we have not found, any evidence in the record or reasonable inference therefrom that would support a finding that the Law Firm revealed matters to the opposing party in the adversary proceeding that were adverse to Deutsch’s position. Considering all of the evidence in the light most favorable to Deutsch, disregarding all contrary evidence and inferences, and giving Deutsch the benefit of all reasonable inferences created by the evidence, we conclude there was no conflicting evidence of probative value as to whether the Law Firm misrepresented its billing procedures or revealed matters to the opposing party in the adversary proceeding that were adverse to Deutsch’s position. See Szczepanik, 883 S.W.2d at 649. Accordingly, the trial court correctly directed a verdict in the Law Firm’s favor as to these allegations.
2. Do Deutsch’s breach-of-ñduciary-duty allegations impermissibly fracture his negligence claim?
*189In its motion for directed verdict, the Law Firm also asserted that Deutsch had improperly fractured his negligence claim. Therefore, we must determine whether Deutsch’s remaining breach-of-fiduciary-duty allegations impermissibly fracture his negligence claim. This is a difficult area of the law, and there are confusing statements in dicta in some of the cases. Nevertheless, when cases say that clients cannot divide or fracture their negligence claims against their attorneys into other claims, this does not mean that clients can sue their attorneys only for negligence. See Burrow v. Arce, 997 S.W.2d 229, 287-47 (Tex.1999) (holding that, although negligence claim fails if client suffers no damages, clients still may obtain fee forfeiture as remedy under their breach-of-fiduciary-duty claim, even in absence of damages); Latham v. Castillo, 972 S.W.2d 66, 69-70 (Tex.1998) (holding that client can assert DTPA claim against attorney, apart from negligence claim, where client alleged that attorney made affirmative misrepresentation); Spera v. Fleming, Hovenkamp & Grayson, P.C., 25 S.W.3d 863, 872-73 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding that fact issue precluded summary judgment as to breach-of-fiduciary-duty claim, even though negligence claim failed as a matter of law); Jampole v. Matthews, 857 S.W.2d 57, 61-63 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (holding that, under certain circumstances, clients may assert fraud and breach-of-contract claims against their attorneys, separate from negligence claims); Estate of Degley v. Vega, 797 S.W.2d 299, 303-04 (Tex.App.-Corpus Christi 1990, no writ) (holding that clients may assert common-law fraud claims against their attorneys separate from their negligence claims); but see Cuyler v. Minns, 60 S.W.3d 209, 216 (Tex.App.Houston [14th Dist.] 2001, pet. denied) (indicating, in dicta, that all claims asserted by clients against their attorneys should be considered negligence claims); Sledge v. Alsup, 759 S.W.2d 1, 2-3 (Tex.App.-El Paso 1988, no writ) (same as Cuyler).
The rule against dividing or fracturing a negligence claim prevents legal-malpractice plaintiffs from opportunistically transforming a claim that sounds only in negligence into other claims. See, e.g., Goffney v. Rabson, 56 S.W.3d 186, 188-94 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). This analysis is analogous to determining whether claims are contract or DTPA claims or whether they sound in contract or tort. See Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 13-15 (Tex.1996); Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 493-95 (Tex.1991). If the gist of a client’s complaint is that the attorney did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess, then that complaint should be pursued as a negligence claim, rather than some other claim. See, e.g., Goffney, 56 S.W.3d at 190-94. If, however, the client’s complaint is more appropriately classified as another claim, for example, fraud, DTPA, breach of fiduciary duty, or breach of contract, then the client can assert a claim other than negligence. See id. (indicating in dicta that claims for failure to disclose conflicts of interest and other breaches of duties of candor and loyalty would have stated a separate claim for breach of fiduciary duty but that this type of conduct was not alleged by plaintiffs).
After reviewing items (5)-(14) of Deutsch’s breach-of-fiduciary-duty allegations 4, we conclude that the gist of these allegations is that the Law Firm did not *190exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess. Therefore, these allegations should be pursued only as a negligence claim, and Deutsch imper-missibly fractured his negligence claim by asserting these complaints as breach-of-fíduciary-duty allegations. See id. The trial court did not err in granting a directed verdict as to items (5)-(14).
In items (2)-(4), Deutsch complained about the Law Firm’s failure to disclose and counsel Deutsch about conflicts of interest, its failure to withdraw from representing Deutsch in light of these conflicts, and its failure to advise Deutsch to retain separate counsel because of these conflicts. The gist of these complaints regarding the Law Firm’s conflicts of interest was not that the Law Firm failed to exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess; rather, these complaints are appropriately classified as a breach-of-fiduciary-duty claim, independent of Deutsch’s negligence claim. See Holland v. Brown, 66 S.W.2d 1096, 1102 (Tex.Civ. App.-Beaumont 1938, writ refd) (stating that attorneys owe their clients utmost good faith in their dealings with them, that attorneys owe their clients a duty to affirmatively disclose all material facts that would affect their relationship as well as legal consequences of those facts, and that breach of this duty states a claim for constructive fraud); Sherwood v. South, 29 S.W.2d 805, 808-9 (Tex.Civ.App.1930, writ refd) (holding by Texas Supreme Court that there was question for jury on client’s fraud claim when client alleged attorney breached his duty of loyalty by obtaining confidential client information and using it for his own personal interest and against client’s interest); Goffney, 66 S.W.3d at 193-94 (stating in dicta that claims for, among other things, failure to disclose conflicts of interest state separate claims for breach of fiduciary duty against attorneys); Jackson Law Office, P.C. v. Chap-pell, 37 S.W.3d 15, 22-23 (Tex.App.-Tyler 2000, pet. denied) (stating that attorneys have fiduciary duty of full disclosure and holding that evidence of failure to disclose, misrepresentation, conflict of interest, and self-dealing supported jury’s finding that attorneys breached their fiduciary duty); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 482-83 (Tex.App.-Dallas 1995, writ denied) (holding that client stated separate claim for fraud); Jampole, 857 S.W.2d at 61-63 (holding that client stated separate claim for fraud).
The dissent refers to a “word-processor-created blizzard” and notes that, in his counterclaim, Deutsch alleged that the same fifteen items constituted negligence and breach of fiduciary duty. See post, op. at pp. 200-01 (concurring and dissenting opinion). One might infer from these statements that Deutsch’s breach-of-fiduciary-duty allegations are nothing more than a repackaged negligence claim. Though Deutsch alleged the same facts in his petition for both his negligence and breach-of-fiduciary-duty claims, this pleading practice is not determinative. The procedural rules allow a claimant to plead in the alternative. See Tex.R. Civ. P. 48; Field v. AIM Management Group, Inc., 845 S.W.2d 469, 472 (Tex.App.-Houston [14th Dist.] 1993, no writ). When, as in this case, the evidence raises a genuine issue of material fact regarding alleged wrongful conduct that sounds in negligence as well as alleged wrongful conduct that sounds in breach of fiduciary duty, the trial court should charge the jury on both claims, regardless of any alternative pleading. See, e.g., Burrow, 997 S.W.2d at 232-33, 237-46 (finding that jury should decide fact issues regarding breach of fiduciary duty and negligence, even though court indicates that plaintiffs’ petition com*191plained of all actionable conduct as basis for both claims). Therefore, the trial court erred to the extent it granted a directed verdict as to Deutsch’s allegations concerning conflicts of interest on the basis that these allegations impermissibly fractured Deutsch’s negligence claim.
3. Did the trial court err in granting the Law Firm’s motion for directed verdict as to Deutsch’s claim for damages allegedly caused by the Law Firm’s breaches of fiduciary duty regarding the conflicts of interest?
In part of his first issue, Deutsch asserts the trial court erred in granting the Law Firm’s motion for directed verdict as to his claim for damages allegedly caused by the Law Firm’s breaches of fiduciary duty regarding the conflicts of interest. In this regard, Deutsch cites testimony from his expert witness, Keith Spickelmier. While Spickelmier did make a conclusory statement that Waddell’s alleged negligence in making unauthorized statements to the bankruptcy court caused Deutsch damages, this statement was not related to the Law Firm’s alleged breaches of fiduciary duty regarding conflicts of interest.
As to the conflicts of interest, Spickelmier never testified that-they caused Deutsch any damages; rather, the only testimony he gave as to damages in this regard indicates that these conflicts did not cause Deutsch any damage: (1) Spickelmier acknowledged his own statement that he had not reached a conclusion as to whether Deutsch had suffered any specific amount of damages as a result of the conflicts of interest; (2) he testified that Deutsch suffered no damage as a result of the Law Firm’s representation of Dan-333; (3) he is not aware of anything meaningful that happened during the time period when the Law Firm was a party to the adversary proceeding and also representing Deutsch in the adversary proceeding; (4) Spickel-mier has not quantified any amount of alleged damages that Deutsch has suffered as a result of any alleged actionable conduct of the Law Firm; and (5) he has not formed an opinion as to whether the conduct of the Law Firm caused Deutsch any damages as to his interests in Dan-333 or in Kirkwood Atrium Associates. Considering all of the evidence in the light most favorable to Deutsch, disregarding all contrary evidence and inferences, and giving Deutsch the benefit of all reasonable inferences created by the evidence, we conclude there was no conflicting evidence of probative value as to whether Deutsch suffered damages caused by the Law Firm’s alleged breaches of fiduciary duty regarding the conflicts of interest. See Szczepanik, 883 S.W.2d at 649. Accordingly, we hold the trial court did not err in granting a directed verdict as to Deutsch’s claim for damages regarding these alleged breaches of fiduciary duty.
4. Did the trial court err in granting the Law Firm’s motion for directed verdict as to Deutsch’s claim for fee forfeiture based on the Law Firm’s alleged breaches of fiduciary duty regarding the conflicts of interest?
As a result of the above analysis, we are left to consider whether the trial court correctly granted a directed verdict as to Deutsch’s claim for fee forfeiture based on the Law Firm’s alleged breaches of fiduciary duty regarding the conflicts of interest. For fee forfeiture based on breach of fiduciary duty, the Texas Supreme Court has established the following procedure:
Thus, when forfeiture of an attorney’s fee is claimed, a trial court must determine from the parties whether factual disputes exist that must be decided by a jury before the court can determine *192whether a dear and serious violation of duty has occurred, whether forfeiture is appropriate, and if so, whether all or only part of an attorney’s fee should be forfeited. Such factual disputes may include, without limitation, whether or when the misconduct complained of occurred, the attorney’s mental state at the time, and the existence or extent of any harm to the client. If the relevant facts are undisputed, these issues may, of course, be determined by the court as a matter of law. Once any necessary factual disputes have been resolved, the court must determine, based on the factors we have set out, whether the attorney’s conduct was a clear and serious breach of duty to his client and whether any of the attorney’s compensation should be forfeited, and if so, what amount.
Burrow, 997 S.W.2d at 246 (emphasis added).
Burrow controls our disposition of Deutsch’s complaint that the trial court erred in directing a verdict on his fee-forfeiture claim based on the Law Firm’s alleged breaches of fiduciary duty regarding the conflicts of interest. As to this claim, the no-damages argument fails because damages are not necessary to prevail on a fee-forfeiture claim. See Burrow, 997 S.W.2d at 237-40 (holding clients need not prove actual damages to obtain fee forfeiture for their attorney’s breach of fiduciary duty). As to the fracturing issue, we already have concluded that these allegations do not impermissibly fracture Deutsch’s negligence claim. Therefore, we must determine whether there was legally sufficient evidence of these breach-of-fidu-eiary-duty allegations, requiring the trial court to charge the jury as to them. We conclude that genuine issues of material fact exist as to whether the Law Firm breached its fiduciary duty, by failing to fully disclose all material facts relating to conflict-of-interest issues regarding the Law Firm’s simultaneous representation of both Deutsch and another firm client, Dan-333, and whether the Law Firm should have withdrawn from its representation of Deutsch because of a conflict of interest created by the Law Firm’s simultaneous representation of Dan-333 in a property-tax matter. Because there were genuine issues of material fact as to whether the Law Firm breached its fiduciary duty and as to the mental state of the attorneys in question at the time of the alleged breaches, under Burrow, the trial court should have charged the jury on these fact issues, separately from any negligence submission. See Burrow, 997 S.W.2d at 232-33, 237-46; Spera, 26 S.W.3d at 872-74 (holding summary judgment was improper as to breach-of-fiduciary-duty claim seeking fee forfeiture because there was fact issue regarding whether attorneys breached their fiduciary duty to disclose material facts relating to conflicts of interest, even though plaintiffs’ negligence claims faded as a matter of law). Texas law allows Deutsch to assert a separate and independent claim for breach of fiduciary duty in this situation. See Burrow, 997 S.W.2d at 232-33, 237-46; Spera, 25 S.W.3d at 872-74.
In Burrow, the legal-malpractice plaintiffs asserted a number of claims, including negligence and breach of fiduciary duty. See Burrow, 997 S.W.2d at 232-33. All of the plaintiffs’ claims were based on the same set of facts and circumstances. See id. Nonetheless, because there were genuine issues of material fact regarding the clients’ claims for fee forfeiture, and because summary judgment was improper on the clients’ negligence claims, the Texas Supreme Court held the trial court’s summary judgment should be reversed and the jury should resolve the fact issues regarding the defendants’ alleged negligence and *193also those fact issues relating to the defendants’ alleged breaches of fiduciary duty. Id. at 232-34, 237-46.
The Texas Supreme Court has prescribed the procedural steps for resolving this type of claim. Under Burrow, the jury must determine the factual issues before the trial court can determine whether the breach of fiduciary duty, if any, found by the jury was a clear and serious breach that merits fee forfeiture, and, if so, the extent of the forfeiture. See Burrow, 997 S.W.2d at 246. Because there were fact issues regarding breach of fiduciary duty and scienter, the jury—not the trial court—had to determine these fact issues. Accordingly, we conclude the trial court erred in granting a directed verdict as to Deutsch’s claim for fee forfeiture based on the Law Firm’s alleged breaches of fiduciary duty regarding the conflicts of interest. See Burrow, 997 S.W.2d at 237-46; Szczepanik, 883 S.W.2d at 649; Spera, 25 S.W.3d at 872-74.
5. Can this court affirm the directed verdict as to fee forfeiture on the basis that the trial court did not abuse its discretion in denying fee forfeiture ?
The dissent does not dispute that there was a genuine issue of material fact as to whether the Law Firm breached its fiduciary duty and, in fact, presumes the Law Firm breached its fiduciary duty. The dissent contends that the trial court exercised its discretion to deny fee forfeiture and that this court should not find error in the directed verdict absent an abuse of discretion. See post, op. at pp. 200-05. To determine whether there was an abuse of discretion, the dissent asserts that this court should determine whether, “viewing all the evidence in Deutsch’s favor, no reasonable trial judge could have denied fee forfeiture.” Post, op. at p. 203. We respectfully disagree with the dissent’s analysis of the conflicts because (1) the trial court never exercised its discretion to deny fee forfeiture; (2) if the trial court had done so, it would have been error; (3) this court cannot consider the dissent’s discretionary ground because the Law Firm did not assert it in its motion for directed verdict; and (4) in any event, there was sufficient evidence to allow the trial court to consider, at the appropriate time, whether to award fee forfeiture.
No Discretionary Determination on Fee Forfeiture
First, in its motion for a directed verdict, the Law Firm did not ask the trial court to make a discretionary determination that, even if the Law Firm had breached its fiduciary duty, Deutsch still was not entitled to fee forfeiture.5 Fur*194thermore, the trial court never exercised any purported discretion to deny Deutsch’s fee-forfeiture claim; rather, the trial court granted the Law Firm’s motion for directed verdict as to Deutsch’s breach-of-fiduciary-duty claim, precluding the jury from finding breach of fiduciary duty and precluding the trial court from deciding whether to exercise its discretion to award fee forfeiture based on any jury findings on this claim. The dissent incorrectly states that it is this court’s position that the trial court never ruled on the fee-forfeiture claim. That is not so. The trial court did rule on the fee-forfeiture claim— it granted a directed verdict as to the entire breach-of-fiduciary-duty claim. That interlocutory ruling merged into the trial court’s final judgment and is now before us on appeal. See H.B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex.1963) (holding that prior interlocutory orders merge into subsequent order disposing of all remaining parties and issues, creating a final and appealable judgment); Columbia Rio Grande Regional Hosp. v. Stover, 17 S.W.3d 387, 391 (Tex.App.-Corpus Christi 2000, no pet.); Exxon Corp. v. Garza, 981 S.W.2d 415, 420 (Tex.App.-San Antonio 1998, pet. denied); see also Dickinson v. Auto Center Mfg. Co., 733 F.2d 1092, 1101-02 (5th Cir.1983) (holding that trial court’s interlocutory ruling on motion for directed verdict merged into final judgment and was reviewable on appeal from final judgment). If Deutsch’s breach-of-fiduciary-duty claim failed as a matter of law, then the trial court did just what it should have done procedurally — it granted a directed verdict, did not charge the jury on this claim, and did not have to address whether it should exercise its discretion to award fee forfeiture under Burrow. See Burrow, 997 S.W.2d at 246.
The issue before this court is whether a directed verdict was proper. Because there was conflicting evidence of probative value on Deutsch’s claim for fee forfeiture based on breach of fiduciary duty, the trial court’s directed verdict was improper in this regard, and this court must reverse and remand for jury determination of the fact issues regarding that claim. See Szczepanik, 883 S.W.2d at 649. As to Deutsch’s fee-forfeiture claim, the dissent asserts that the trial court’s directed verdict should be affirmed despite these fact issues. The dissent argues this court should affirm the directed verdict based on a review of the trial court’s purported discretionary determination not to award fee forfeiture in this case.
The trial court, however, made no finding, express or implied, that fee forfeiture is not an appropriate remedy in this case. The trial court granted the Law Firm’s motion for directed verdict as to Deutsch’s breach-of-fiduciary-duty claim, and thus no factual issues were submitted to the jury as to this claim. Because neither the trial court nor the jury made any factual determinations regarding the breach-of-fiduciary-duty claim, there is no basis on which to imply a finding by the trial court that fee forfeiture is inappropriate under Burrow. See Tex.R. Civ. P. 279 & 299; Burrow, 997 S.W.2d at 246; IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441-43 (Tex.1997); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). We are aware of no authority allowing this court to affirm a directed verdict based on a discretionary ruling the trial court never made.
*195 Any Request Would Have Been Premature
Second, even if the Law Firm had moved for a directed verdict on the ground that the trial court should exercise its discretion to deny fee forfeiture despite the fact issues regarding breach of fiduciary duty, its efforts would have been in vain. The Texas Supreme Court has made it clear that the trial court should not determine the clear-and-serious-breach issue and whether to award fee forfeiture until after the jury has resolved all material fact questions regarding whether the defendant breached its fiduciary duty. See Burrow, 997 S.W.2d at 246 (“a trial court must determine from the parties whether factual disputes exist that must be decided by a jury before the court can determine whether a clear and serious violation of duty has occurred, whether forfeiture is appropriate, and if so, whether all or only part of an attorney’s fee should be forfeited.”); Jackson Law Office, P.C., 37 S.W.3d at 23 (same). We are not at liberty to encroach on methodology the Texas Supreme Court has devised and adopted for fee-forfeiture claims. Though our dissenting colleague would have us take an arguably more efficient path, as an intermediate court of appeals, we must follow the Texas Supreme Court’s expressions of the law and leave changes in the application of common-law rules to that higher authority. See In the Interest of K.M.S., 45 Tex.Sup.Ct. J. 877, 2002 WL 1338100, at *1 (June 20, 2002); Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex.1989); Winograd v. Willis, 789 S.W.2d 307, 312 (Tex.App.-Houston [14th Dist.] 1990, writ denied). Applying Burrow, as we must, it is clear that the trial court erred by granting a directed verdict in favor of the Law Firm and not submitting to the jury Deutsch’s claim for fee forfeiture based on the Law Firm’s alleged breaches of fiduciary duty regarding any conflicts of interest. See Burrow, 997 S.W.2d at 246.
Ground Not Specified in Motion for Directed Verdict
Third, the rules of civil procedure require that “[a] motion for directed verdict shall state the specific grounds therefor.” Tex.R. Civ. P. 268. Based on the wording of this rule, one might reasonably conclude that this court may not affirm the directed verdict on a ground not specified in the motion for directed verdict. However, the Texas Supreme Court has held that the failure to specify a ground in the motion for directed verdict is not fatal if there are no fact issues raised by the evidence and the prevailing party is entitled to judgment as a matter of law. Texas Emp. Ins. Ass’n v. Page, 553 S.W.2d 98, 102 (Tex. 1977) (stating the failure of a motion for directed verdict to specify a ground “is not always fatal, especially if there are no fact issues raised by the evidence”); Harvey v. Elder, 191 S.W.2d 686, 687 (Tex.Civ.App.-San Antonio 1945, writ refd) (holding by the Texas Supreme Court that trial court can grant sua sponte directed verdict or nonspecific motion for directed verdict, as long as the prevailing party below was entitled to judgment as a matter of law); Newman v. Link, 866 S.W.2d 721, 725-26 (Tex.App.-Houston [14th Dist.] 1993) (stating the failure of a motion for directed verdict to specify a ground “is not fatal if there are no fact issues raised by the evidence” and citing Page for this proposition) 6, writ denied, 889 S.W.2d 288 (Tex. *1961994) (per curiam); see also In re Price’s Estate, 375 S.W.2d 900, 904 (Tex.1964), superseded by statute as stated in Stiles v. Res. Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). The evidence raised fact issues regarding Deutsch’s claim for fee forfeiture based on the Law Firm’s alleged breaches of fiduciary duty regarding the conflicts of interest, and the dissent’s conclusion that it would not be an abuse of discretion to deny fee forfeiture is not an assertion that the Law Firm was entitled to judgment as a matter of law. Therefore, the Law Firm was required to specify this ground in its motion for directed verdict. Because the Law Firm did not move for directed verdict on this ground, we cannot affirm on this basis. See Tex.R. Civ. P. 268; Texas Emp. Ins. Ass’n, 553 S.W.2d at 102; Newman, 866 S.W.2d at 726-26.
Sufficient Evidence of Clear-ancFSerious Breach of Fiduciary Duty
Fourth, it should be noted that there was sufficient evidence from which the trial court could have concluded that the Law Firm committed a clear-and-serious breach of fiduciary duty. Under Burrow, if the trial court had not granted a directed verdict, and if the proceedings had progressed to that point, the trial court would have had discretion to find the Law Firm’s breaches to be clear and serious based on the following considerations: (1) the gravity and timing of the violation; (2) its wilfulness; (3) its effect on the value of the attorney’s work; (4) any other threatened or actual harm to the client; (5) the adequacy of other remedies; and (6) the public interest in maintaining the integrity of attorney-client relationships. See Burrow, 997 S.W.2d at 241-44. The determination of whether a clear-and-serious breach of fiduciary duty has occurred is a discretionary call that does not require: (1) actual damages caused by the breach; or (2) an intentional breach; or (3) inadequacy of other available remedies. See Burrow, 997 S.W.2d at 241-44. The dissent states that Deutsch suffered no damages7, that the breaches were not intentional, and that “[t]he trial court could have found the conflicts were minor and of short duration.” See post, op. at p. 203. As a matter of law, damages and an intentional breach are not required for a elear-and-serious breach to exist. See Burrow, 997 S.W.2d at 241-44; Jackson Law Office, P.C., 37 S.W.3d at 22-23 (affirming partial fee forfeiture under Burrow even though the breaches of fiduciary duty did not cause damages and even though there was no indication that the breaches were intentional).
Attorneys owe their clients a fiduciary duty of “most abundant good faith,” requiring absolute perfect candor, openness and honesty, and the absence of any concealment or deception. See Goffney, 56 *197S.W.3d at 198. The dissent presumes that the Law Firm breached its fiduciary duty, for example, by failing to fully disclose to Deutsch all material facts relating to conflict-of-interest issues regarding the Law Firm’s simultaneous representation of Deutsch and Dan-883. In its representation of Dan-333 in a property-tax matter, the Law Firm was arguing for a low valuation of the property in question, and, at the same time, the Law Firm was representing Deutsch in the bankruptcy court and arguing for a high valuation of the same property. The conflict-of-interest issues and the client’s need for full disclosure before consenting to continued representation shows that there was sufficient evidence on the issue of whether the Law Firm’s alleged breaches of fiduciary duty were clear and serious to warrant consideration by the trial court if the jury were to find a breach of fiduciary duty. See Holland, 66 S.W.2d at 1102 (stating that attorneys owe their clients utmost good faith in their dealings with them, that attorneys owe their clients duty to affirmatively disclose all material facts which would affect their relationship as well as legal consequences of those facts, and that breach of this duty states a claim for constructive fraud); Jackson Law Office, P.C., 37 S.W.3d at 22-23 (affirming partial fee forfeiture under Burrow based in part on attorneys’ breaches of fiduciary duty to fully disclose facts relating to conflicts of interest, even though there were no damages and no apparent intentional breaches); W.C. Tumbow Petroleum Corp. v. Fulton, 199 S.W.2d 263, 264-65 (Tex.Civ. App.-Texarkana 1946, writ ref d n.r.e.) (affirming fee forfeiture against attorney and stating that “ ‘An attorney owes to his client an undivided allegiance ... He cannot act both for his client and one whose interest is adverse to or conflicting with that of his client in the same general matter, however slight such adverse interest may be, nor is it material that the intention and motive of the attorney may have been honest.’ ”); Bryant v. Lewis, 27 S.W.2d 604, 607-8 (Tex.Civ.App.-Austin 1930, writ dism’d) (holding that attorney’s failure to disclose material facts regarding conflict of interest and failure to disclose the legal consequences of those facts justified forfeiture of attorney’s fee, even though attorney appeared not to have been aware of conflict and to have acted in good faith); Condren v. Grace, 783 F.Supp. 178, 185-87 (S.D.N.Y.1992) (finding that attorney’s fee should be forfeited because of breach of fiduciary duty by failure to disclose material facts regarding conflicts of interest but also finding that plaintiff had failed to prove attorney was negligent in representing client).
For these reasons, we conclude the trial court erred when it granted a directed verdict in favor of the Law Firm as to Deutsch’s claim for fee forfeiture based on the Law Firm’s alleged breaches of fiduciary duty regarding the conflict-of-interest issues.
6. Summary
The trial court correctly granted a directed verdict against Deutsch as to his claim for damages based on breach of fiduciary duty because there was either legally insufficient evidence that these breaches occurred (items (1) and (15)) or these allegations impermissibly fractured his negligence claim (items (5)-(14)) or there was legally insufficient evidence of damages (items (2)-(4)). The trial court erred in granting a directed verdict against Deutsch as to his claim for fee forfeiture based on the alleged breaches of fiduciary duty relating to the Law Firm’s conflicts of interest because there were genuine issues of material fact as to whether the Law Firm breached its fiduciary duty and as to the mental state of the attorneys in question at the time of the alleged breach*198es. See Burrow, 997 S.W.2d at 232-33, 237-46; Spera, 25 S.W.3d at 872-74. Accordingly, we overrule Deutsch’s first and seventh issues to the extent Deutsch complains of the trial court’s directed verdict as to his claim for damages based on breach of fiduciary duty and as to his claim for fee forfeiture, except to the extent he sought fee forfeiture based on the alleged breaches of fiduciary duty relating to the Law Firm’s conflicts of interest. We sustain Deutsch’s first and seventh issues as to his claim for fee forfeiture based on the alleged breaches of fiduciary duty relating to the Law Firm’s conflicts of interest.
D. Did the trial court err by refusing jury questions regarding certain alleged defenses?
The trial court has considerable discretion to determine necessary and proper jury instructions. Texas Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 911 (Tex.2000). When a trial court refuses to submit a requested instruction, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. See Tex.R. Civ. P. 277; Mandlbauer, 34 S.W.3d at 911. Further, for an instruction to be proper, it must (1) assist the jury; (2) accurately state the law; and (3) find support in the pleadings and the evidence. See Tex.R. Civ. P. 278; Mandlbauer, 34 S.W.3d at 911.
In his third, fourth, and fifth issues, Deutsch asserts that, even if the trial court properly granted a directed verdict as to his breach-of-fiduciary-duty claim, it erred by refusing to submit jury questions he requested regarding his purported breach-of-contract defenses — misrepresentation, breach of contract, and breach of fiduciary duty. Deutsch devoted less than one page to the argument under these three issues. Moreover, though he cited to a portion of the clerk’s record showing that he filed forty-two proposed jury questions three days before the charge conference, he has not cited, and we have not found, any evidence in the record that the trial court considered and refused any of these forty-two questions. We find Deutsch did not preserve error based on these questions. See Corley v. Exxon Pipeline Co., 821 S.W.2d 435, 437 (Tex.App.-Houston [14th Dist.] 1991, writ denied).
We note that Deutsch has included in the appendix to his appellant’s brief thirty-two pages that appear to be jury questions that were marked “refused” by the trial court; however, because these documents are not part of the appellate record in this case, we may not consider them. See Carlton v. Trinity Univ. Ins. Co., 32 S.W.3d 454, 458 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Even if these documents had been made part of the appellate record, we would not reach the merits of Deutsch’s complaint because Deutsch has waived these issues by failing to properly brief them. See Tex.R.App. P. 38.1(h); Houghton v. Port Terminal R.R. Ass’n, 999 S.W.2d 39, 51 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Though Deutsch states in a conclusory manner that the trial court erred by refusing his questions regarding misrepresentation, breach of contract, and breach of fiduciary duty, as defenses to the Law Firm’s contract claim, he does not cite or otherwise specify any refused question or questions that he alleges properly presented these purported defenses. Moreover, he cites only one case and then for an uncontroversial proposition — that certain defenses that negate a plaintiffs claim may still be asserted even if the statute of limitations bars the defendant from recovering on a claim under the same theory. Deutsch provides no analysis as to why any proposed question was substantially correct *199and supported by the evidence. A party asserting error on appeal bears the burden of showing that the record supports the contention raised, and of specifying the place in the record where matters upon which he relies or of which he complains are shown. See Tex.R.App. P. 38.1(h); Houghton, 999 S.W.2d at 51. Deutsch has failed to carry this burden and thus has waived these issues. See Tex.R.App. P. 38.1(h); Houghton, 999 S.W.2d at 51. Accordingly, we overrule Deutsch’s third, fourth, and fifth issues.
E. Did the trial court err by granting a directed verdict as to Deutsch’s claims for exemplary damages, breach of contract, and attorney’s fees?
In four remaining issues, Deutsch complains of the trial court’s directed verdict against various other claims.
In his sixth issue, he complains the trial court granted a directed verdict as to his claim for exemplary damages. Deutsch did not prevail on any theory at trial and recovered no damages. Consequently, on appeal, there is no surviving tort theory as to which Deutsch might recover actual damages. Thus, Deutsch cannot recover exemplary damages. See Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex.1995) (parties cannot recover exemplary damages unless they first recover under an independent tort claim). We overrule Deutsch’s sixth issue.
In his eighth issue, Deutsch complains of the directed verdict against his breach-of-contract claim. Deutsch pleaded the same fifteen items for breach of contract as for negligence. In his eighth issue, the only contract claim that Deutsch refers to is his claim regarding certain billing disputes with the Law Firm. The appellate record shows the trial court submitted these disputes to the jury in question one of the charge. The jury deducted the amount of a cash retainer the Law Firm had failed to apply in Deutsch’s favor; otherwise, the jury found in the Law Firm’s favor as to the billing dispute. Deutsch has not asserted or shown that the jury would have resolved these billing issues differently had the trial court overruled the Law Firm’s directed verdict as to breach of contract. Therefore, any error in the trial court’s directed verdict on the breach-of-contract claim was harmless. See Cooper v. Lyon Fin. Servs., Inc., 65 S.W.3d 197, 209 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (holding any error in granting directed verdict as to one claim was harmless because the jury considered and rejected the same damages that were sought under another theory). Accordingly, we overrule Deutsch’s eighth issue.
In his ninth and tenth issues, Deutsch complains of the directed verdict against his own claim for attorney’s fees. Deutsch sought attorney’s fees under the DTPA and under Chapter 38 of the Texas Civil Practice and Remedies Code. See Tex. Bus. & Com.Code § 17.50(d); Tex. Civ. PRAC. & Rem.Code § 38.001, et seq. The trial court did not charge the jury on the DTPA claim, and Deutsch has not assigned any error in this regard on appeal. Because Deutsch did not prevail on a DTPA claim, he cannot recover attorney’s fees under the DTPA. See Tex. Bus. & Com.Code § 17.50(d); Sears, Roebuck and Co. v. Nichols, 819 S.W.2d 900, 908 (Tex.App.Houston [14th Dist.] 1991, writ denied). To recover attorney’s fees under Chapter 38 of the Texas Civil Practice and Remedies Code, a party must (1) prevail on a claim for which attorney’s fees are recoverable, and (2) recover damages. Green International, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997). Deutsch did neither. Accordingly, we overrule his ninth and tenth issues.
*200IV. Conclusion
We sustain Deutsch’s first and seventh issues to the extent they pertain to his claim for fee forfeiture based on alleged breaches of fiduciary duty relating to the Law Firm’s conflicts of interest; otherwise, we overrule all of Deutsch’s issues. "While the only claim left to be resolved in this case is Deutsch’s claim for fee forfeiture based on alleged breaches of fiduciary duty relating to the Law Firm’s conflicts of interest, the resolution of this claim may affect the trial court’s judgment that the Law Firm recover its attorney’s fees from Deutsch. Therefore, we reverse the trial court’s judgment and remand this case to the trial court for a jury trial on the disputed fact issues regarding this claim and for further proceedings consistent with this opinion.
BRISTER, C.J., concurring and dissenting.. There is a potential nomenclature problem in the cases caused by the fact that a "legal malpractice claim” might be thought of by some as any claim brought by a client against that client's attorney. However, when cases refer to "legal malpractice” or “a legal malpractice claim,” often they are referring to a negligence claim in which the issue is whether the attorney exercised that degree of care, skill, and diligence as attorneys of ordinary skill and knowledge commonly possess and exercise. See Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). To avoid confusion, in this opinion a claim that the attorney did not exercise that degree of care, skill, and diligence as attorneys of ordinary skill and knowledge commonly possess and exercise is referred to as a "negligence claim” rather than as a "legal malpractice claim." Further, we use the term "legal malpractice” to refer to any claim brought by a client against that client’s attorney, regardless of whether the claim asserts negligence, fraud, breach of fi*185duciary duty, breach of contract, or any other allegation.
. On appeal, neither party asserts that our review of the trial court's directed verdict is limited to only the statute-of-limitations ground, and we consider all grounds raised by the Law Firm in its motion for directed verdict.
. This is the controlling standard of review. The dissent creates a hybrid, discretionary standard of review to determine whether the trial court erred in granting directed verdict— "Our only role is to decide whether, viewing all the evidence in Deutsch’s favor, no reasonable trial judge could have denied fee forfeiture.” See post, op. at p. 203-04 (concurring and dissenting opinion). The dissent’s standard of review is incorrect and not supported by precedent. See Burrow v. Arce, 997 S.W.2d 229, 237-46 (Tex.1999); Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex.1994); see also R.R. Street & Co., Inc. v. Pilgrim Enterprises, Inc., 81 S.W.3d 276, 303-05 (Tex.App.-Houston [1st Dist.] 2001, pet. filed) (using traditional directed-verdict standard of review to conclude directed verdict should be reversed and stating that the court's analysis is the same analysis that would be used in fee-forfeiture case under Burrow).
. See list of fifteen breach-of-fiduciaiy-duty allegations on pages 187-88.
. The dissent, however, concludes that the Law Firm did ask the trial court to countermand the Burrow holding and to grant a directed verdict as to fee forfeiture based on a discretionary determination that, even if the Law Firm had breached its fiduciary duty, Deutsch still was not entitled to fee forfeiture under Burrow. See Burrow, 997 S.W.2d at 240-46. The dissent gleans this request for relief from the following statement by the Law Firm’s counsel during his motion for directed verdict (emphasis added):
Now, with regard to his fee forfeiture claim under the Arsee [sic] [Burrow] case admittedly he does not have to prove damages. What he has to prove is to get a jury finding as to breach of fiduciary duty and then it becomes a court determination. The Arsee [sic] case sets forth certain criteria that the trial court judge and the trial court judge only can determine whether [sic] the trial fees should be forfeited in their entirety, in part or not at all.
In this part of the Law Firm’s motion for directed verdict, counsel requests no relief from the trial court; rather, counsel states his view of the law in this case—that Deutsch must obtain a jury finding that the Law Firm breached its fiduciary duty before the matter becomes a trial-court determination and that *194the trial court, at that point, would determine whether any or all of the fee should be forfeited under the criteria set forth in Burrow. See Burrow, 997 S.W.2d at 240-46. The record shows that the Law Firm's counsel sought no relief and correctly summarized the Burrow case, which requires the trial court to charge the jury if there are fact issues regarding whether the Law Firm breached its fiduciaiy duty. See id.
. The dissent incorrectly states that Newman stands for the proposition that "in equitable matters committed to a trial court's discretion, the rule is that we must affirm if there is any basis in the record for doing so, whether or not the ground was expressly urged by the successful party.” See post, op. at pp. 204-OS. Newman does not support this proposi*196tion; rather Newman held that "[although Rule 268 requires a motion for instructed verdict to state specific grounds, the failure to so state is not fatal if there are no fact issues raised by the evidence.” Newman, 866 S.W.2d at 725-26. Although Newman did involve a constructive trust, the court did not state that the equitable nature of this remedy had anything to do with its holding in this regard. See Newman, 866 S.W.2d at 725-26.
. The dissent's statement that "the jury found no negligence by the firm caused [Deutsch] any harm" is correct; however, it could be misunderstood. See post, op. at p. 203. The jury failed to find that "the negligence, if any, of [the Law Firm] proximately cause[d] any injury to George Deutsch.” The jury did not find that the Law Firm was free from negligence, and the jury's finding in this regard may very well have been based on Deutsch's failure to prove damages. Deutsch was unable to submit proper jury questions based on his fee-forfeiture claim because the trial court granted the Law Firm's motion for directed verdict on this claim.