Court of Appeals of Texas, Fifth District, Dallas
MOHAMMED HARUN AND SPICE-N-RICE INDIAN TIFFIN RESTAURANT, Appellants
SHARIF RASHID, Appellee
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-12-09394
Justices Lang, Evans, and Schenck Opinion by Justice Schenck
J. SCHENCK JUSTICE
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.
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.
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.
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.
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.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).
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.
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.
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.
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. § 152.202(b)(2). Moreover, and contrary to
appellants' assertion, Rashid presented ...