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Harun v. Rashid

Court of Appeals of Texas, Fifth District, Dallas

January 9, 2018


         On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-09394

          Before Justices Lang, Evans, and Schenck Opinion by Justice Schenck



         Mohammed Harun and Spice-N-Rice Indian Tiffin Restaurant ("Spice-N-Rice") appeal the trial court's judgment awarding Sharif Rashid actual and exemplary damages and attorney's fees on his breach-of-fiduciary-duty claims. In three issues, appellants assert the trial court erred in finding Harun and Rashid were partners in Spice-N-Rice and in awarding Rashid damages. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.


         Harun and Rashid became acquainted in 2001. Harun was in the restaurant business, and Rashid was a technical analyst. In November 2008, Harun was interested in opening a new restaurant in Irving. Harun did not have the financial resources to get the venture off the ground, so he approached Rashid to see if he was interested in funding the operation. Rashid was interested and invested $45, 000 of his savings, and, when the business was in the need of additional funds, he took out a personal loan in the amount of $15, 000 to cover expenses. In addition to infusing funds into the business, Rashid (a) assisted Harun in negotiating a lease for the restaurant, as Harun does not speak English fluently; (b) was a signatory on the restaurant's bank account; (c) hired a bookkeeper to handle the restaurant's accounting matters; (d) dealt with contractors on the build-out of the restaurant; (e) purchased furniture, equipment, and supplies for the restaurant; and (f) paid for advertising. In the fall of 2010, the bookkeeper Rashid hired distanced herself from Huran, Rashid, and Spice-N-Rice expressing her concern that Huran may have improperly reported Spice-N-Rice's income on his tax return. Shortly thereafter, Huran removed Rashid as a signatory on Spice-N-Rice's bank account and blocked his access to the account and the restaurant's premises.

         On August 21, 2012, Rashid filed suit against appellants alleging the existence of a partnership between Huran and Rashid to operate the Spice-N-Rice restaurant, and asserting claims of breach of fiduciary duty and breach of contract, and seeking actual and exemplary damages, and attorney's fees. Rashid later amended his pleadings to include claims of conversion and fraud. Appellants generally denied Rashid's allegations and specifically denied that Rashid had ever been a partner in Spice-N-Rice.

         On January 19, 2016, the case proceeded to trial before the court. On February 16, 2016, the trial court entered a judgment awarding Rashid actual damages of $36, 000-the difference between Rashid's investment of $60, 000 and the approximate amount that Rashid had been repaid-exemplary damages of $36, 000, and attorney's fees of $79, 768.64, along with prejudgment and post-judgment interest and costs. No findings of fact and conclusions of law were requested or entered. Appellants filed a motion for new trial, which was overruled by operation of law. This appeal followed.


         Huran and Spice-N-Rice raise three issues challenging the sufficiency of the evidence to establish the existence of a partnership between Huran and Rashid and to support an award of damages. In response, Rashid notes the appellants failed to bring forward a complete record and urges this Court to presume the missing portions of the record support the trial court's judgment.[1]See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002) (per curiam). Regardless of which presumption applies-the presumption under rule 34.6(c)(4) of the Texas Rules of Appellate Procedure that we have all of the record necessary to analyze the sufficiency issues or the presumption the missing portion of the record is relevant and supports the trial court's judgment-the outcome in this case is the same. Consequently, we pretermit deciding whether appellants invoked the presumption that the record before us constitutes the entire record for purposes of reviewing the stated issues. See Tex. R. App. P. 34.6(c)(4).

         Appellants' first issue focuses on the existence of a partnership generally, and their second issue focuses on whether there was an agreement to share losses. Appellants do not specify whether they challenge the evidence of a partnership on legal or factual sufficiency grounds, and do not identify the standard of review to be applied in this case. Construing appellants' briefing liberally, we treat appellants' sufficiency complaint as a challenge to both the legal and factual sufficiency of the evidence. Tex.R.App.P. 38.9. As detailed below, both fail under the record before us.

         In conducting a legal-sufficiency review, we view the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). We may sustain a legal-sufficiency, or no-evidence, point if the record reveals one of the following: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence established conclusively the opposite of the vital fact. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). If more than a scintilla of evidence exists, it is legally sufficient. Lee Lewis Constr., 70 S.W.3d at 782. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id. at 782-83.

         In reviewing a factual-sufficiency point, we must weigh all of the evidence in the record before us. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

         As to appellants' second issue-by which they complain about the alleged lack of evidence of an agreement to share losses-the Texas Business Organizations Code expressly provides that an agreement to share losses is not necessary to create a partnership. Tex. Bus. Orgs. Code Ann. § 152.052(c) (West 2012). Partnership losses are charged against each partner in accordance with the partner's share. Id. ยง 152.202(b)(2). Moreover, and contrary to appellants' assertion, Rashid presented ...

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