Appellants, AvenueOne Properties, Inc. and Homer Garrison, appeal from the judgment in favor of appellee KP5 Limited Partnership, finding appellants jointly and severally liable for breach of a commercial lease. We will reverse the trial courtâs judgment against Homer Garrison and otherwise affirm.Factual and Procedural BackgroundBy amended pleadings, KP5 asserted a breach of contract claim against AvenueOne and Garrison, alleging AvenueOne defaulted in its obligations under a 72- month extension of its lease of space owned by KP5, signed in January 2011. It alleged Garrison, who was AvenueOneâs president, had individual liability for the corporationâs default through alter ego and similar theories for âpiercing the corporate veil.âThe parties stipulated that AvenueOne and KP5 entered into a valid contract; that KP5 performed its contractual obligations; that AvenueOne breached the contract; and that KP5 mitigated its damages but sustained damages of $118,543.73. The only issues addressed at trial concerned Garrisonâs individual liability for AvenueOneâs breach of contract.The case was tried to the bench. The court heard testimony from Garrison and from Ross Plummer, AvenueOneâs former chief financial officer, and received exhibits. After the court signed its judgment holding Garrison and AvenueOne jointly and severally liable, it issued findings of fact and conclusions of law.The evidence and the courtâs findings of fact reflect that Garrison was an established Austin real estate broker and AvenueOne was an established real estate brokerage company when Garrison acquired AvenueOne and merged it with his existing operation. The findings recite that Garrison purchased AvenueOne in 2009 and thereafter was its president and sole shareholder, âthe only individual with financial ownership ofâ the corporation.AvenueOneâs lease of space from KP5 was to expire in August 2011 but Garrison extended it for an additional seventy-two months by a lease signed in January 2011. Garrisonâs relationship with AvenueOneâs real estate agents deteriorated, however, and by August 2011 reached the point that all twenty-four agents signed a letter demanding that he resign as president and âdissolve the mergerâ of AvenueOne with his operation. He refused, and the agents shortly left the company.One of the issues within AvenueOne concerned Garrisonâs cash management practices, which differed from those followed by the companyâs prior shareholders. Before he acquired it, AvenueOneâs shareholders were its real estate agents. Plummer, who had been employed by the company since 2007, testified the company had maintained a âsubstantial cash reserve.âThe evidence shows that, as sole shareholder, Garrison took compensation in amounts and in a manner that Plummer considered improper. The trial courtâs findings state that Garrison took $589,500 in âdisbursementsâ from AvenueOne in addition to his annual salary between May 2009 and April 2011. It found he received an annual salary of $328,000 after becoming AvenueOneâs president, and a salary of $372,113.74 between January 2011 and April 2011. Garrison agreed Plummer told him many times he could not âlive out of the till.â Plummer testified he eventually refused to sign Garrisonâs requested compensation checks, and said Garrison then began directing a company accountant to prepare the checks, and signed them himself. In his testimony, Plummer also identified other expenditures he considered improper, including a payment to Garrisonâs housekeeper, costs to prepare Garrisonâs personal tax returns, and tax return- preparation and other expenses associated with Garrisonâs former company.AvenueOne was late with payment to its former shareholders of a deferred payment due them under the merger agreement. Evidence also shows that, under Garrisonâs control, AvenueOne did not maintain some relationships from which it previously had benefitted, such as its membership in a prestigious association of realty companies, and did not keep up its recruitment of new or replacement real estate agents.A long-time friend of Garrison on three occasions wired funds to AvenueOne, totaling $300,000. Garrison testified the funds were commissions he had earned in the past and reimbursement for property taxes AvenueOne had advanced for his friend. Garrison acknowledged he had no written agreement with his friend documenting the reasons for the wired funds. The court found âHomer Garrison used his personal funds to cover AvenueOneâs payroll.âThe trial court found Plummerâs testimony concerning the compensation and other expenditures to be credible; its findings characterize Garrisonâs actions as âdiverting funds to his personal accounts.â The court also found Garrison âknew he could not continue diverting funds to his personal accounts, as his chief financial officer Ross Plummer informed him in an email dated July 7, 2011.â Despite Plummerâs advice, the court found, Garrison âcontinued diverting funds.â Under questioning by the court, Garrison acknowledged that his actions operated â[t]o the detriment of AvenueOne.âThe court further found that Garrisonâs withdrawal of the $589,500 from AvenueOne âcaused the corporation to be unable to meet its financial obligations, rendering it insolvent.â It is undisputed that, despite the wired funds, by October 2011 AvenueOne was virtually out of cash. It vacated KP5â˛s space late that month, and ceased making lease payments.Garrison created Garrison Real Estate, LLC, in January 2012; its certificate of formation was filed with the Secretary of State on January 24, 2012. The certificate states the LLC was to be managed by Garrison and his wife. The court found that when Garrison Real Estate was created, âAvenueOne was still an active corporation.â The findings state Garrison Real Estate and AvenueOne âconduct the same businessâ and are âboth brokerages.â It found that Garrison Real Estate sold three houses while AvenueOne was âstill open.â The three houses were sold during July and August 2012, with commissions totaling $201,900. The court also found that âGarrison changed the listing information . . . to claim that houses sold by AvenueOne were sold by Garrison Real Estate.â Garrison filed AvenueOneâs certificate of termination with the Secretary of State on November 9, 2012. The court found Garrison âtook all receivables of AvenueOne after the business closed, but before AvenueOne became inactive.âAnalysisGarrison brings five issues on appeal, asserting (1) the trial court erred in a conclusion of law stating that AvenueOneâs corporate veil could be pierced absent proof that it was used to perpetrate actual fraud on KP5 for Garrisonâs direct personal benefit; (2) there was no evidence, or factually insufficient evidence, showing actual fraud was perpetrated on KP5 primarily for Garrisonâs direct personal benefit; (3) the trial court erred by disregarding the express waiver of personal liability contained in the lease; (4) no, or factually insufficient, evidence supported piercing the corporate veil under any of the theories alleged; and (5) Garrison had no personal liability for AvenueOneâs breach of the lease.Issue Two â Sufficiency of EvidenceWe begin with Garrisonâs second issue, challenging the sufficiency of the evidence to prove that actual fraud was perpetrated on KP5, and that such actual fraud was primarily for Garrisonâs direct personal benefit.We review the trial courtâs findings of fact for legal and factual sufficiency of the evidence by the same standard applied to a jury verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see City of Keller v. Wilson, 168 S.W.3d 802, 827-28 (Tex. 2005) (describing legal sufficiency standard of review); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (describing factual sufficiency standard of review). We review a trial courtâs conclusions of law de novo to determine their correctness and will uphold conclusions if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).There is no dispute on appeal that, under the Business Organizations Code, Garrisonâs personal liability for KP5â˛s damages depends on proof that he caused AvenueOne to be used for the purpose of perpetrating and did perpetrate an actual fraud on KP5 primarily for Garrisonâs direct personal benefit. Tex. Bus. Orgs. Code Ann. § 21.223 (West 2017) (providing shareholder may not be held liable for contractual obligation of corporation absent such actual fraud); see SSP Partners v. Gladstrong Invs. Corp., 275 S.W.3d 444, 455-56, n.57 (Tex. 2008); Shook v. Walden, 368 S.W.3d 604, 614 (Tex. App.âAustin 2012, pet. denied). AvenueOne alleged Garrison was individually liable for the corporationâs lease obligation under theories of alter ego, use of corporation as a sham to perpetrate a fraud, and use of corporation to evade a legal obligation. The trial court found he was liable under all three theories, and found he caused AvenueOne to perpetrate an actual fraud for his direct personal benefit.The Texas Supreme Court and other Texas courts have detailed the history behind the statutory provision now contained in sections 21.223 and 21.224 of the Business Organizations Code. See, e.g., SSPPartners, 275 S.W.3d at 455; Willis v. Donnelly, 199 S.W.3d 262, 271-72 (Tex. 2006); TecLogistics, Inc. v. Dresser-Rand Grp., Inc., 527 S.W.3d 589, 599 (Tex. App.âHouston [14th Dist.] 2017, no pet.); Shook, 368 S.W.3d at 611-13. It is unnecessary for us to repeat that history here, but it begins with the 1986 opinion in Castleberry v. Branscum, 721 S.W.2d 270 (Tex. 1986), in which the court held âthe corporate structure could be disregarded on a showing of constructive fraud, even without actual fraud.â SSP Partners, 275 S.W.3d at 455.Castleberry affirmed the imposition of individual liability on two corporate shareholders, Branscum and Byboth, for a promissory note signed by the corporation and given to Castleberry, another shareholder, in payment for the corporationâs purchase of his shares. 721 S.W.2d at 274. Castleberry sold his shares back to the corporation after a disagreement over Branscumâs formation of a business that competed with the corporationâs business. After the buy-out of Castleberryâs shares, the corporation made the first $1000 installment payment under the note and then defaulted on the remaining $41,000. Id.Evidence showed that after the buy-out, Branscumâs business âbegan to take over more and moreâ of the corporationâs business. A third company was formed, and all three âwere all in the same business and all operated out of [Branscum's] residence.â Under the control of Branscum and Byboth, the corporationâs business withered and Branscumâs company prospered. The third company was formed after Castleberry filed suit, and Byboth conceded at trial that it was formed because of Castleberryâs suit. After the third company was formed, Byboth and Branscum terminated the corporationâs contract with its major customer and obtained the same work for that customer for their newly-formed company. They sold the corporationâs business assets to âindependent contractorsâ of their new company and paid the proceeds to themselves as âback salaries.â 721 S.W.2d at 275.There was evidence of the intent behind Branscumâs actions. After Castleberry filed suit, Branscum told his wife Castleberry âwould never get a dime . . . that he would open the company in another name so that [Castleberry] wouldnât get paid.â He had made similar statements earlier. Id. at 274-75.The courtâs opinion held:We hold that this is some evidence of a sham to perpetrate a fraud. A jury could find that Byboth and Branscum manipulated a closely-held corporation . . . and formed competing businesses to ensure that Castleberry did not get paid. Castleberry had little choice but to sell his shares back to the corporation. While this evidence may be no evidence of intentional fraud, constructive fraud, not intentional fraud, is the standard for disregarding the corporate fiction on the basis of a sham to perpetrate a fraud.In determining if there is an abuse of the corporate privilege, courts must look through the form of complex transactions to the substance. The variety of shams is infinite, but many fit this caseâs pattern: a closely held corporation owes unwanted obligations; it siphons off corporate revenues, sells off much of the corporate assets, or does other acts to hinder the onÂgoing business and its ability to pay off its debts; a new business then starts up that is basically a continuation of the old business with many of the same shareholders, officers, and directors.721 S.W.2d at 275 (citations omitted).In 1989, the Legislature began the amendments to Texas corporation laws that have led to the current sections 21.223 and 21.224. As the court noted in SSP Partners, the legislative actions were a rejection of the view expressed in Castleberry in certain cases[1] in favor of a âstricter approach to disregarding the corporate structure . . . .â 275 S.W.3d at 455.In a 1998 case involving facts it found comparable to those in Castleberry, but not subject to section 21.223 because it did not involve a contractual obligation, the Austin Court of Appeals upheld a judgment against corporate shareholders based on a jury finding that they used the corporation as a sham to perpetrate fraud. Love v. State, 972 S.W.2d 114, 120 (Tex. App.âAustin 1998, pet. denied). The court rejected an evidentiary-sufficiency challenge, and in doing so noted the evidence showed circumstances similar to other Texas cases, observing âcourts have consistently pierced the corporate veil when the pattern of the sham is such that shareholders of a corporation with unwanted obligations siphon off revenues and sell assets, or do other acts to hinder the companyâs ability to pay its debts, such as start up a new business with the same shareholders.â Id. (citing, inter alia, Castleberry, 721 S.W.2d at 274-75). So far as the partiesâ briefing and our research have shown, however, the Austin court has not had occasion to apply the statutory actual fraud standard to facts fitting the pattern of conduct shown in Castleberry and Love.AvenueOne argues the evidence in this case âclearly established that Garrison siphoned off AvenueOneâs corporate assets for his own benefit and then started up a new real estate business to continue marketing the listings that previously had been with him at the now defunct AvenueOne.âThe Castleberry opinion distinguished actual fraud from constructive fraud with this language:Actual fraud usually involves dishonesty of purpose or intent to deceive, whereas constructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests.721 S.W.2d at 273 (quoting Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964).In cases applying section 21.223 and its predecessor provisions, several Texas courts of appeals have made use of the statement from Castleberry, and have defined the term actual fraud as âdishonesty of purpose or intent to deceive.â See TransPecos Banks v. Strobach, 487 S.W.3d 722, 730 (Tex. App.âEl Paso 2016, no pet.) (listing cases); Dickâs Last Resort of the W. End, Inc. v. Market/Ross, Ltd., 273 S.W.3d 905, 909 (Tex. App.âDallas 2008, pet. denied); Menetti v. Chavers, 974 S.W.2d 168 (Tex. App.â San Antonio 1998, no pet.).[2]There are opinions upholding the sufficiency of evidence similar to that in Castleberry, and similar to that we face here, to prove conduct involving âdishonesty of purpose or intent to deceiveâ and thus actual fraud. Latham v. Burgher, 320 S.W.3d 602 (Tex. App.âDallas 2010, no pet.), is illustrative. Latham and his wife were the sole shareholders of their roofing company, a corporation. 320 S.W.3d at 609. Shortly after receiving a demand letter from an attorney for a dissatisfied customer, threatening suit, Latham dissolved the corporation and distributed its assets to the shareholders without making provisions for its possible liability to the customer. Id. The customer sued the corporation and Latham, and obtained a judgment imposing joint and several liability. In his appeal challenging the sufficiency of the evidence supporting the juryâs finding of alter ego, Latham emphasized the evidence of the corporationâs separate existence from its shareholders. The court rejected Lathamâs challenge, finding the evidence indicated the corporation was his mere business conduit. Regarding the evidence of actual fraud, the court said Lathamâs arguments âsuggest [the plaintiff] should look to [the corporation] to be made whole, but Latham himself destroyed that option when he dissolved [the corporation.] And having dissolved the corporation, he took its assets and property for himself. A rational juror could have decided that holding only the non-existent [corporation] responsible would result in injustice. A rational juror could also have decided Lathamâs conduct in dissolving the corporation in the face of [the plaintiff's] claim represented dishonesty of purpose or an intent to deceive, i.e., actual fraud.â 320 S.W.3d at 610; see also Tryco Enters. v. Robinson, 390 S.W.3d 497, 510-11 (Tex. App.âHouston [1st Dist.] 2012, pet. dismâd) (similar conclusion).The difficulty we see with the application of Castleberr/s âactual fraudâ standard to such conduct, however, arises from the Castleberry opinion itself. The court there described actual fraud, but did not say the conduct of Branscum and Byboth demonstrated actual fraud; the court said it exhibited constructive fraud. 721 S.W.2d at 275. In that regard, we find persuasive Justice Massengaleâs opinion in Tryco Enterprises, in which he pointed out the incongruity of a holding that conduct fitting the pattern of that described in Castleberry will meet the definition of actual fraud, when the Castleberry opinion states that the evidence in that case âmay be no evidenceâ of intentional fraud. Tryco Enters., 390 S.W.3d at 529 (Massengale, J., concurring in part and dissenting in part).Because this case was transferred to our Court from the Austin Court of Appeals,[3] we also have carefully considered the Austin courtâs opinion in Shook. 368 S.W.3d 604. That case required the court to consider the application of the requirements of section 21.223 to limited liability companies. In the course of its thorough analysis of that issue, the court described the history of the law of veil-piercing in Texas and the nature of the Legislatureâs actions on the subject beginning in 1989. 368 S.W.3d at 611-12. Later in the opinion, the court described the âbalancing of competing policy interestsâ involved in the application of veil-piercing principles which, the court said, âare ultimately matters of economic regulation.â Id. at 619. Continuing, the court observed that the manner in which the âcompeting considerations are weighed determines both the nature of âabuseâ that is said to warrant veil piercing and how such âabuseâ is proven.â Id. at 620. Describing the Legislatureâs 1989 amendments to former Business Corporation Act article 2.21 and subsequent statutory amendments, the court noted âthe Legislature struck a balance that differed markedly from that of the Castleberry court with respect to veil piercing to impose individual liability for corporate contractual obligations . . . .â Id. Concluding its discussion before turning to the facts and arguments of the parties before it, the court commented on the appropriateness of judicial deference to the Legislatureâs policy judgments in this area, observing that â[s]uch deference is especially appropriate when . . . we are addressing matters of economic regulation, an arena in which the Legislature possesses institutional competence superior to that of the judiciary . . . .â Id.[4]We cannot conclude that we would give the level of deference to the Legislatureâs policy judgments as the Shook opinion describes if we merely apply the label âactual fraudâ to the type of conduct the Castleberry court has said constituted constructive fraud. For these reasons, we agree with Garrison that the evidence before the trial court was legally insufficient to prove he caused AvenueOne to be used for the purpose of perpetrating and did perpetrate an actual fraud on KP5 primarily for his direct personal benefit, as statutorily required.[5]We do not ignore the trial courtâs findings of fact regarding representations made to KP5. The court found that Garrison represented to KP5 that AvenueOne would occupy the leased space for seventy-two months and renovate the space. It found that âAvenueOne was financially unable to pay the lease for seventy-two months or afford renovations when these representations were made.â It further found that AvenueOne vacated the space after ten months and never completed the renovations, and that KP5â˛s managing partner would not have entered the lease if it had known âthese representations were not true.âGarrison argues the ârepresentationsâ are merely obligations stated in the lease and are not evidence of actual fraud perpetrated by Garrison. See Formosa Plastics Corp. United States v. Presidio EngâRs & Contrs., 960 S.W.2d 41, 45 (Tex. 1998); Menetti, 974 S.W.2d at 175 (finding evidence of misrepresentations insufficient to prove actual fraud). The only evidence we find of a representation made outside the terms of the lease itself is contained in a November 2011 letter from KP5 to Garrison, giving notice of default. Among the unpaid items listed in the letter is â$7,765.08 to be repaid to the KP5 LLP based on your personal representations that you would complete extensive upgrades to the leased property and that you have abandoned instead.â This also is no evidence of actual fraud perpetrated primarily for Garrisonâs direct personal benefit. See Menetti, 974 S.W.2d at 175.We sustain his second issue.Without evidence sufficient to permit the imposition on Garrison of liability for AvenueOneâs contractual obligation, the judgment against him cannot be sustained. We therefore need not address his other four appellate issues. Tex. R. App. P. 47.1.We reverse the trial courtâs judgment insofar as it imposed liability on Homer Garrison, individually, and render judgment that KP5 Limited Partnership, take nothing against him. Otherwise, the judgment is affirmed.James T. Campbell Justice