Ajaz R. Siddiqui, Najeeb Siddiqui and Suncoat Environmental and Construction, Inc. v. Fancy Bites, L.L.C., Quick Eats L.L.C., Farhan S. Qureshi and Syed Khalid Ali ( 2015 )


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  •                                                                                ACCEPTED
    14-14-00384-cv
    FOURTEENTH COURT OF APPEALS
    HOUSTON, TEXAS
    6/26/2015 8:35:53 PM
    CHRISTOPHER PRINE
    CLERK
    No. 14-14-00384-CV
    FILED IN
    14th COURT OF APPEALS
    HOUSTON, TEXAS
    In the Fourteenth Court of Appeals
    6/26/2015 8:35:53 PM
    Houston, Texas
    CHRISTOPHER A. PRINE
    Clerk
    AJAZ R. SIDDIQUI, NAJEEB SIDDIQUI AND
    SUNCOAST ENVIRONMENTAL AND CONSTRUCTION, INC.,
    Appellants,
    v.
    FARHAN S. QURESHI AND SYED KHALID ALI,
    Appellees.
    On Appeal from the 80th Judicial District Court
    Harris County, Texas
    Trial Court Cause No. 2010-66787
    APPELLEES’ BRIEF
    Peter M. Kelly
    State Bar No. 00791011
    KELLY, DURHAM & PITTARD, L.L.P.
    1005 Heights Boulevard
    Houston, Texas 77008
    Telephone: 713.529.0048
    Facsimile: 713.529.2498
    Email: pkelly@texasappeals.com
    COUNSEL FOR APPELLEES - Oral Argument Requested
    TABLE OF CONTENTS
    TABLE OF CONTENTS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
    INDEX OF AUTHORITIES .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
    STATEMENT OF FACTS .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
    STANDARD OF REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
    A.       Findings of fact--legal and factual sufficiency.. . . . . . . . . . . . . . . . . 11
    B.       Conclusions of law--de novo... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    ARGUMENT AND AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
    I.       The trial court’s fraud finding is supported by legally
    sufficient evidence (Response to Siddiqui Issue No. 2).. . . . . . . . . . 14
    A.       There is no need for the trial court to make
    particularized fact findings.. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
    B.       The Siddiquis owed Qureshi and Ali a duty to
    disclose material facts, and breached that duty. . . . . . . . . . . . 17
    C.       The Siddiquis made multiple misrepresentations or
    nondisclosures to Qureshi and Ali, causing damages
    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
    D.       Qureshi and Ali established the Siddiquis’ scienter
    with circumstantial evidence. . . . . . . . . . . . . . . . . . . . . . . . . . 20
    II.      The trial court’s finding of a breach of fiduciary duties is
    supported by more than a scintilla of evidence (Response
    to Siddiqui Issue No. 1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
    -ii-
    A.       The Siddiquis and Qureshi and Ali were in an
    informal fiduciary relationship.. . . . . . . . . . . . . . . . . . . . . . . . 22
    B.       Suncoast, too, is liable for the breach of the
    Siddiquis’ fiduciary duties (Response to Siddiqui
    Issue No. 5).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
    C.       The damages flowing from the breach of fiduciary
    duty have not been separately challenged. . . . . . . . . . . . . . . . 25
    III.     Qureshi and Ali introduced legally sufficient evidence to
    support an award of restitution damages for the Siddiquis’
    fraud (Response to Siddiqui Issue No. 3).. . . . . . . . . . . . . . . . . . . . . 25
    IV.      Exemplary damages were properly awarded (Response to
    Siddiqui Issue No. 6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
    V.       The Siddiquis are not entitled to a judgment in their favor
    (Response to Siddiqui Issue No. 7). . . . . . . . . . . . . . . . . . . . . . . . . . 29
    CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
    CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
    CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
    -iii-
    TABLE OF AUTHORITIES
    Case                                                                                                  page
    Allen v. Devon Energy Holdings, L.L.C.,
    
    367 S.W.3d 355
    (Tex. App.--Houston [1st Dist.] 2012,
    pet. granted, j’ment set aside, remanded by agmt.). . . . . . . . . . . . . . . . 23, 29
    Am. Med. Int’l, Inc. v. Giurintano,
    
    821 S.W.2d 331
    (Tex. App.--Houston [14th Dist.] 1991, no writ). . . . . . . 18
    Anderson v. City of Seven Points,
    
    806 S.W.2d 791
    (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
    Arias v. Brookstone, L.P.,
    
    265 S.W.3d 459
    (Tex. App.--Houston [1st Dist.] 2007, pet. denied). . . . . 12
    Associated Indem. Corp. v. CAT Contracting, Inc.,
    
    964 S.W.2d 276
    (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
    Barrientos v. Nava,
    
    94 S.W.3d 270
    (Tex. App.--Houston [14th Dist.] 2002, no pet.).. . . . . . . . 12
    Behee v. Mo. Pac. Ry. Co.,
    
    71 Tex. 424
    , 
    9 S.W. 449
    (1888). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
    Bentley v. Bunton,
    
    94 S.W.3d 561
    (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
    20 Black v
    . Dallas Cnty. Welfare Unit,
    
    835 S.W.2d 626
    (Tex. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
    BMC Software Belgium, N.V. v. Marchand,
    
    83 S.W.3d 789
    (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
    13 Bradf. v
    . Vento,
    
    48 S.W.3d 749
    (Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    -iv-
    Brown v. Brown,
    
    236 S.W.3d 343
    (Tex. App.--Houston [1st Dist.] 2007, no pet.). . . . . . 17-18
    Burrow v. Arce,
    
    997 S.W.2d 229
    (Tex. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
    Citizens Nat’l Bank v. Allen Rae Invs., Inc.,
    
    142 S.W.3d 459
    (Tex. App.--Fort Worth 2004, no pet.). . . . . . . . . . . . . . . 18
    City of Harker Heights v. Sun Meadows Land, Ltd.,
    
    830 S.W.2d 313
    (Tex. App.--Austin 1992, no writ).. . . . . . . . . . . . . . . . . . 27
    City of Keller v. Wilson,
    
    168 S.W.3d 802
    (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12
    Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp.,
    
    823 S.W.2d 591
    (Tex. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
    Cruz v. Andrews Restoration, Inc.,
    
    364 S.W.3d 817
    (Tex. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
    Digby v. Texas Bank,
    
    943 S.W.2d 914
    (Tex. App.--El Paso 1997, writ denied).. . . . . . . . . . . . . . 21
    Estate of Stonecipher v. Estate of Butts,
    
    591 S.W.2d 806
    (Tex. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
    Finch v. Finch,
    
    825 S.W.2d 218
    (Tex. App.--Houston [1st Dist.] 1992, no writ).. . . . . . . . 15
    Flanary v. Mills,
    
    150 S.W.3d 785
    (Tex. App.--Austin 2004, pet. denied).. . . . . . . . . . . . . . . 15
    French v. French,
    
    385 S.W.3d 61
    (Tex. App.--Waco 2012, pet. denied). . . . . . . . . . . . . . . . . 21
    Greater Hous. German Shepherd Dog Rescue, Inc. v. Lira,
    
    447 S.W.3d 365
    (Tex. App.--Houston [14th Dist.] 2014, pet. filed). . . . . . 13
    -v-
    Guevara v. Lackner,
    
    447 S.W.3d 566
    (Tex. App.--Corpus Christi 2014, no pet.). . . . . . . . . . . . 24
    Henry S. Miller Co. v. Bynum,
    
    836 S.W.2d 160
    (Tex. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
    In re J.R.,
    
    907 S.W.2d 107
    (Tex. App.--Austin 1995, no writ).. . . . . . . . . . . . . . . . . . 27
    In re Marriage of Morris,
    
    12 S.W.3d 877
    (Tex. App.--Texarkana 2000, no pet.). . . . . . . . . . . . . . . . . 15
    In re Marriage of Jameson,
    No. 07–02–00476–CV, 
    2004 WL 237829
    (Tex. App.--Amarillo 2004,
    pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
    In re L.A.F.,
    
    270 S.W.3d 735
    (Tex. App.--Dallas 2008, pet. denied). . . . . . . . . . . . . . . . 11
    In re M.M.M.,
    
    229 S.W.3d 821
    (Tex. App.--Fort Worth 2007, no pet.). . . . . . . . . . . . 15-16
    Ins. Co. of N. Am. v. Morris,
    
    981 S.W.2d 667
    (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
    Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am.,
    
    341 S.W.3d 323
    (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28
    James J. Flanagan Shipping Corp. v. Del Monte Fresh Produce N.A., Inc.,
    
    403 S.W.3d 360
    (Tex. App.--Houston [1 Dist.] 2013, no pet.). . . . . . . . . . 21
    Kinzbach Tool Co. v. Corbett–Wallace Corp.,
    
    160 S.W.2d 509
    (Tex. 1942).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
    Leonard v. Eskew,
    
    731 S.W.2d 124
    (Tex. App.--Austin 1987, writ ref d n.r.e.). . . . . . . . . 10-11
    Lundy v. Masson,
    
    260 S.W.3d 482
    (Tex. App.-Houston [14th Dist.] 2008, pet. denied). . . . . 22
    -vi-
    Matter of Marriage of Merrikh,
    14-14-00024-CV, 
    2015 WL 2438770
    (Tex. App.--Houston [14th Dist.]
    May 19, 2015, n.p.h.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13
    Meyer v. Cathey,
    
    167 S.W.3d 327
    (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
    Miller v. Miller,
    
    700 S.W.2d 941
    (Tex. App.--Dallas 1985, writ ref’d n.r.e.). . . . . . . . . . . . 23
    Nelson v. Najm,
    
    127 S.W.3d 170
    (Tex. App.--Houston [1st Dist.] 2003, pet. denied). . . . . 28
    Quigley v. Bennett,
    
    227 S.W.3d 51
    (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
    Rivers v. Charlie Thomas Ford, Ltd.,
    
    289 S.W.3d 353
    (Tex. App.--Houston [14th Dist.] 2009, no pet.).. . . . . . . 17
    Schlumberger Tech. Corp. v. Swanson,
    
    959 S.W.2d 171
    (Tex. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
    Sears, Roebuck and Co. v. Nichols,
    
    819 S.W.2d 900
    (Tex. App.--Houston [14th Dist.] 1991, writ denied). . . . 13
    Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd.,
    
    237 S.W.3d 379
    (Tex. App.--Houston [14th Dist.] 2007, no pet.).. . . . . . . 18
    Texas Bank & Trust Co. v. Moore,
    
    595 S.W.2d 502
    (Tex. 1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
    Transp. Ins. Co. v. Moriel,
    
    879 S.W.2d 10
    (Tex. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
    Tuck v. Miller,
    
    483 S.W.2d 898
    (Tex. Civ. App.--Austin 1972, writ ref’d n.r.e.). . . . . . . . 23
    Turner v. Franklin,
    
    325 S.W.3d 771
    (Tex. App.--Dallas 2010, pet. denied). . . . . . . . . . . . . . . . 20
    -vii-
    Vejara v. Levior lnt’l LLC,
    No. 04–11–00595–CV, 
    2012 WL 5354681
    (Tex. App.--San Antonio
    Oct. 31, 2012, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
    Vickery v. Comm’n for Lawyer Discipline,
    
    5 S.W.3d 241
    (Tex. App.--Houston [14th Dist.] 1999, pet. denied). . . . . . 10
    Village Place, Ltd. v. VP Shopping, LLC,
    
    404 S.W.3d 115
    (Tex. App.--Houston [1st Dist.] 2013, no pet.). . . . . . 11-12
    Volume Millwork, Inc. v. West Houston Airport Corp.,
    
    218 S.W.3d 722
    (Tex. App.--Houston [1st Dist.] 2006,
    pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
    White v. Zhou Pei,
    
    452 S.W.3d 527
    (Tex. App.--Houston [14th Dist.] 2014, no pet.).. . . . . . . 18
    Willis v. Donnelly,
    
    199 S.W.3d 262
    (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
    Statutes and Rules
    RESTATEMENT (FIRST) OF RESTITUTION § 152 (1937). . . . . . . . . . . . . . . . . . . . . . 26
    RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 37.. . . . . . 27
    -viii-
    STATEMENT OF FACTS
    The appellants have accurately stated the chronology of events; this Statement
    of Facts is largely taken from the appellants’ brief. Supplemental facts--in particular,
    those relating to the Siddiquis’ nondisclosures and misrepresentations--are recounted
    in the sections of this brief to which they are relevant.
    Brothers Ajaz Siddiqui and Najeeb Siddiqui jointly and equally own Suncoast
    Construction, Inc. 2 RR 52-53 2 RR 52; 4 RR 90. Suncoast and the Siddiquis have
    built a variety of projects, including gas stations, shopping centers, travel centers,
    outside fuel systems, multifamily townhomes, and garden apartments. 2 RR 53, 138-
    139; 4 RR 90-91. In 2003, the Siddiquis purchased a 4.26 acre tract from the Klein
    ISD and developed it as Champions Valley Subdivision, which included 36
    townhomes, a Texaco station, and a retail building. 2 RR 54; 3 RR 4-5, 2 RR 55-56;
    4 RR 91 2 RR 55. The retail building house a Hartz Chicken Restaurant, which was
    owned and operated by Blueline Real Estate L.P. – 12011 Bammel North Houston,
    Houston, TX 77066 (“Bammel”). The general and limited partners of Blueline were
    two entities owned by the Siddiquis, Fancy Bites, LLC and Quick Eats, LLC.
    On January 8, 2007, in separate agreements, the Siddiquis sold to Farhan
    Qureshi and Syed Ali each a 25% membership interest in Quick Eats and Fancy Bites,
    the general and limited partners of Blueline, for a combined 50% interest. 2 RR 63-
    64, 66; PX 5, PX 6, 6A RR. Qureshi and Ali each paid $212,500.00 for the 25%
    -1-
    interests. 
    Id. Ajaz Siddiqui
    prepared the Sale and Purchase Agreements. 2 RR 64;
    PX 5, PX 6, 6A RR. There is a written representation in the Sale and Purchase
    Agreements that it “contains a complete and accurate legal description of each parcel
    of real property owned by, leased to, or leased by Company.” The Sale and Purchase
    Agreement between Qureshi and the Siddiquis contains an Exhibit A, which is a plat
    of the Bammel tract where Blueline built the first Hartz Chicken restaurant. 2 RR 65;
    PX 5, page 00348, 6A RR. The Sale and Purchase Agreement between Ali and the
    Siddiquis contains no attached exhibit with any real property description or real
    property plat. PX 6, 6A RR. Ali testified that the Siddiquis verbally represented to
    him that the Bammel tract was owned by Blueline, Fancy Bites or Quick Eats. 4 RR
    178.
    On the date of the sales to Qureshi and Ali, the Bammel property was titled in
    the name of Sunnyland Development, Inc., a holding company owned solely by Ajaz
    Siddiqui. 2 RR 64-66. Title to the Bammel property was conveyed to Blueline, at no
    cost, on May 12, 2008, in connection with the loan to Blueline from Southwestern
    National Bank for construction of the restaurant on Antoine Drive. See 2 RR 64-66,
    98; 1 CR 827; PX 37, 6E RR.
    Following Qureshi’s and Ali’s purchases, the Siddiquis, Qureshi and Ali were
    each 25% members and owners of Fancy Bites and Quick Eats. All four individuals
    were managers of Fancy Bites and Quick Eats and had, on paper at least, equal voting
    -2-
    power and ownership. 2 RR 71-73; 4 RR 100, 128; 5 RR 26, 97-98, 121. On October
    24, 2007, certificates of amendment were filed with the Secretary of State to identify
    the Siddiquis, Qureshi and Ali as managers of Fancy Bites and Quick Eats. PX 16,
    PX 18, 6A RR.
    Effective January 23 and January 24, 2008, the Siddiquis, Qureshi and Ali
    executed Restated Agreements for Blueline, Fancy Bites and Quick Eats. PX 19, 20,
    6B RR; PX 21 6C RR. The Restated Agreements each contain a provision which
    states that the entity may contract with any of the partners, managers, members or
    their affiliates for the purchase of goods and services for the benefit of the entity. 4
    RR 185-186; PX 19, pages 00433-34, §3.3(b), PX 20, p. 00166, § 6.03, 6B RR; PX
    21, p. 00920, § 6.03; 6C RR. The Blueline Agreement identifies Fancy Bites as the
    general partner with a 1% ownership interest and Quick Eats as the limited partner
    with a 99% ownership interest. PX 19, page 00470, 6B RR.
    On February 20, 2007, Qureshi completed a Confidential Franchise Application
    on behalf of Blueline for the Hartz Chicken Restaurant on Bammel. 2 RR 67; PX 7,
    6A RR. The Siddiquis had no involvement in applying for the franchise. 2 RR 67.
    On December 07, 2007, January 11, 2008, and April 30, 2008, Ali signed and filed
    Assumed Name Records on behalf of Blueline and Fancy Bites for the Bammel
    restaurant. 2 RR 69, 82- 83; PX 10, PX 11, 6A RR; PX 28, PX 29, 6C RR. The
    Bammel restaurant opened in March of 2008. 2 RR 83. Ali hired the first manager
    -3-
    for the Bammel restaurant. 2 RR 84-85; 4 RR 101, 131. Ali fired the first manager
    in July of 2008. 2 RR 88-89; 4 RR 101, 132. Between March 2008 to November
    2008, the Bammel location never had a net profit, except for April of 2008, when it
    had a net profit of $260.28. 2 RR 87-88, PX 30, 6C RR.
    An appraisal of the Bammel location as of March 5, 2008, was prepared for
    Southwestern National Bank. 2 RR 140; PX 105; 60-1, 60-2 RR. Using a
    replacement cost approach, the independent appraiser valued the restaurant at
    $780,000.00, $625,143.00 for costs of construction and $154,000.00 for land costs.
    4 RR 76-77; PX 105, p. V, 60-1 RR; pp. 47-55, 60-2 RR. Ajaz Siddiqui testified that
    on March 5, 2008, the market value of the Bammel restaurant and real estate was
    $850,000.00 and that the reasonable and necessary cost to construct the restaurant
    was $850,000.00. 2 RR 95, 148-149. Ajaz Siddiqui prepared a compilation of the
    costs to develop and construct the Bammel tract between 2003 and the completion of
    construction in 2008. 2 RR 90-94; PX 32, 6D-1-6D-3 RR. The total costs were
    $841,682.46. PX 32, page 2380, 6D-1 RR.
    Qureshi owned a tract of land on Antoine Drive and had a Conoco station
    across the street. 2 RR 75, 97; 4 RR 108. After Qureshi and Ali purchased their 25%
    interests each in Fancy Bites and Quick Eats, Qureshi contracted with Suncoast to
    build a retail center. See 3 RR 106-107; DX 8, 6T RR; 9-26-2007 contract to
    construct retail center. The Siddiquis constructed a pad site on this location. 2 RR
    -4-
    74. The Siddiquis, Qureshi and Ali decided this would be a good location for
    Blueline to open a second Hartz restaurant. 2 RR 74-76. Blueline agreed to buy the
    pad site from Qureshi for $150,000.00. 2 RR 75-76, 97; PX 35, PX 36, 6E RR. The
    pad site for the restaurant purchased by Blueline from Qureshi for $150,000.00
    represented 10 to 15 percent of the property owned by Qureshi. 2 RR 76. Qureshi
    had purchased the entire property for around $300,000.00. 2 RR 76.
    In January of 2008, Blueline submitted a loan application to Southwestern
    National Bank to obtain a construction loan for the Antoine Hartz Chicken
    Restaurant. PX 22, 6C RR. The Siddiquis, Qureshi and Ali all signed the loan
    application. The amount sought was $839,000.00 for “land acquisition, new
    construction/expansion/repair.” 
    Id. On January
    28, 2008, Southwestern National Bank sent separate loan
    commitments approving a Construction Loan and Commercial Loan for Blueline for
    the Antoine restaurant. PX 25, PX 26, 6C RR. The Construction Loan is in the
    amount of $645,000.00 “to provide land and construction financing on Hartz Krispy
    Chicken and Rolls located at Antoine and West Mt. Houston, Houston, Texas.” PX
    25. The Commercial Loan is in the amount of $194,000.00 “to purchase FF & E
    [Furniture, Fixtures and Equipment]” for this Antoine location. PX 26. The two loan
    commitments are executed by Blueline, Fancy Bites and all of the individuals as
    guarantors. PX 25, PX 26. Southwestern National Bank did not loan Blueline any
    -5-
    money for working capital. 2 RR 79-80; 4 RR 106, 163, 167; 5 RR 163. There was
    never any discussion between the Siddiquis and Qureshi and Ali that any of the loans
    from Southwestern National Bank would be used for working capital for Blueline.
    
    Id. Fancy Bites
    filed Assumed Name Records for the Antoine Hartz Chicken
    Restaurant on April 16, 2008. 2 RR 82-83; PX 27, 6C RR. The document was signed
    by Ali. 
    Id. In connection
    with the development of the Hartz Chicken restaurant
    located at Antoine Drive, the partnership, Blueline, and the four individuals executed
    and delivered to Southwestern National Bank two (2) promissory notes PX 38, 44,
    45, 48, 6E RR, deeds of trust PX 43, PX 46, PX 47, 6E RR, and guaranty agreements
    pursuant to which the Siddiquis, Qureshi and Ali individually guaranteed Blueline’s
    debt. 2 RR 98-100; 5 RR 4-5; PX 39, 40, 41 and 42, 6E RR. On July 21, 2008, and
    July 23, 2008, Blueline filed Assumed Name Certificates with the Secretary of State
    for the Hartz restaurants at the Bammel and Antoine locations. PX 13, PX 14, 6A
    RR. Both documents are signed by the Siddiquis, Qureshi and Ali as managers of
    Fancy Bites. 
    Id. Construction on
    the Antoine Drive restaurant commenced on May 27, 2008.
    2 RR 103-104; PX 51, 6F RR. As construction on Antoine Drive progressed,
    Suncoast submitted draw requests to Southwestern National Bank, which sent an
    inspector to the site to file a report on the construction and to approve each draw. 2
    -6-
    RR 104-107; 4 RR 79; PX 53-58, 6G RR; PX 59, 6H RR. The Siddiquis, Qureshi and
    Ali, on behalf of Blueline, executed an Affidavit of Completion, stating that the
    Antoine restaurant was completed on July 28, 2009. DX 47, 6W RR. The Antoine
    Drive store opened in November of 2009. 2 RR 108. Qureshi and Ali later fired the
    manager of the Antoine Drive store and operated it themselves for three months. 5
    RR 16, 125, 151. They then shut the store down. 
    Id. The cost
    to complete construction of the Antoine Drive restaurant was
    $728,927.00. 2 RR 120-121; PX 73, 6I-1, 6I-2 RR. Southwestern National Bank
    disbursed $689,000 for construction and equipment. 3 RR 8; 4 RR 77. An
    independent appraisal of the Antoine Drive restaurant as built, valued as of March
    2008, was prepared for Southwestern National Bank. PX 106; 6P- 1, P-2 RR. Using
    a replacement cost approach, the independent appraiser valued the restaurant at
    $785,000.00, $636,137.00 for construction costs and $150,000.00 for land costs. 4
    RR 77; PX 106, p. V; 6P-1 RR; pp. 47-55, 6P- 2 RR.
    The two restaurants did not generate sufficient revenues to pay for insurance,
    debt and property taxes and certain vendors. 2 RR 110-112, 122-123; 4 RR 107-108;
    PX 74, PX 76, 6J RR. The Siddiquis paid the property taxes in 2009, 2010 and 2011.
    2 RR 110. For 2008, 2009, and 2010, Blueline had negative income for each year as
    follows: $152,169, $199,132 and $134,350. 2 RR 128-129; PX 81, 6J RR. Ajaz
    Siddiqui and Najeeb Siddiqui paid $297,947.08 in expenses for Blueline because of
    -7-
    insufficient revenue. 2 RR 130-132; PX 88, 6K RR; PX 98, 6L RR Of that amount,
    $191,170.47 was for loan payments and $4,579.12 was for insurance. 2 RR 132-136;
    PX 98, 6L RR; PX 100, 6M RR. Qureshi and Ali began paying one-half of the note
    payments in July of 2010. 2 RR 132. The various payments for Blueline made by
    Ajaz Siddiqui and Najeeb Siddiqui were made by companies that Ajaz Siddiqui
    owned 100% or owned 50/50 by the Siddiquis. 2 RR 132-133, 135-136, 138; 4 RR
    110. These payments were treated as taxable distributions from the companies to the
    Siddiquis, making the payments by the Siddiquis individually. 2 RR 133, 135-136,
    138; 4 RR 110.
    Hartz sent repeated notices of default to Blueline and the individuals stating
    that Blueline had defaulted on required franchise payments and note obligations. 2
    RR 110-111, 119-120; PX 61, PX 72, 6H RR; PX 78, 6J RR; PX 82, 6K RR. The
    Siddiquis met with Qureshi and Ali in July of 2008, December of 2008, and February
    of 2009 to discuss the negative cash flow of the Bammel restaurant. 2 RR 112-118;
    4 RR 82-83, 102-106, 120, 148-149, 170-171. Qureshi and Ali each agreed to
    contribute 25% toward the negative cash flow of Blueline. Id.; 2 RR 131. Qureshi
    and Ali made payments each time for the shortages. Id.; PX 63, 64, 65, 66, 6H RR.
    On July 1, 2010, October 4, 2010, and October 21, 2010, Southwestern
    National Bank sent notice that Blueline was past due on loan payments and
    requesting income tax returns and financial statements for Blueline, Fancy Bites and
    -8-
    the individuals. 2 RR 124-126; PX 77, 6J RR. On March 11, 2011, counsel for
    Southwestern National Bank wrote to lawyers for the Siddiquis and Qureshi and Ali
    stating that the bank intended to post the properties for foreclosure unless various
    financial documentation was provided and a payment of $11,445.57 was made by
    March 21, 2011. 2 RR 127-128; PX 80, 6J RR.
    The loan payments to Southwestern National Bank were current, but financials
    and tax returns were not provided. 3 RR 9. The bank agreed to a reinstatement
    agreement that Ajaz Siddiqui and Najeeb Siddiqui signed. 3 RR 9; PX 109, PX 110,
    6Q RR. Qureshi and Ali did not agree to the form of reinstatement agreement, so the
    bank accelerated the notes and posted the properties for foreclosure. 3 RR 9-10; 5 RR
    122-123; PX 107, 108, 111, 6Q RR. Blueline filed for bankruptcy on February 7,
    2012. 3 RR 10-11; 5 RR 123; PX 113, 6Q RR. The properties were purchased by the
    bank in foreclosure on July 3, 2012. 3 RR 9; PX 116, 6R RR. Qureshi then
    repurchased the Antoine tract (that he previously owned) from the bank. 5 RR 124.
    The bankruptcy was converted to a Chapter 7 on July 19, 2012. PX 115, 6R RR.
    At the time of trial, Blueline, Fancy Bites and Quick Eats had no assets. 3 RR
    8-9.
    SUMMARY OF ARGUMENT
    The Siddiquis routinely made partial disclosures to Qureshi and Ali--telling
    them of some of the costs, showing them some of the records, only telling them half
    -9-
    the truth about the ownership of some real property. This triggered the duty for full
    disclosure; and when the Siddiquis knowingly failed to provide those full disclosures,
    they defrauded Qureshi and Ali. And even though the Siddiquis and Qureshi and Ali
    did not have a preexisting relationship, the Siddiquis conduct during the course of
    their business venture--exerting complete control of the management and operations
    of the venture, to the point of self-dealing with another company owned by the
    Siddiquis--gave rise to an informal fiduciary relationship. Those same nondisclosures
    and misrepresentations were a breach of the fiduciary duties owed by the Siddiquis
    to Qureshi and Ali.
    Under Texas law, Qureshi and Ali are entitled to restitution for the losses they
    suffered as a result of the fraud, to be put back in the position they were in before the
    fraud occurred. Accordingly, they are entitled to be reimbursed $425,000 (their initial
    investment), plus the $89,482.68 in loan payments they made to the bank in an effort
    to keep the venture afloat. That is exactly what the trial court awarded them.
    STANDARDS OF REVIEW
    This court is bound to assume the validity of the trial court’s judgment.
    Leonard v. Eskew, 
    731 S.W.2d 124
    , 131 (Tex. App.--Austin 1987, writ ref’d n.r.e.);
    see Vickery v. Comm’n for Lawyer Discipline, 
    5 S.W.3d 241
    , 251–52 (Tex. App.--
    Houston [14th Dist.] 1999, pet. denied). This court must construe the judgment and
    any attendant findings of fact and conclusions of law in a way that sustains the
    -10-
    judgment in nay way that does not do violence to the language used by the trial court.
    In re L.A.F., 
    270 S.W.3d 735
    , 739 (Tex. App.--Dallas 2008, pet. denied); 
    Leonard, 731 S.W.2d at 132
    . Accordingly, the court must assume the trial court determined
    favorably to the judgment any omitted findings of fact or conclusions of law
    necessary to the relief ordered. 
    Leonard, 731 S.W.2d at 132
    ; see 
    Vickery, 5 S.W.3d at 252
    .
    A.     Findings of fact--legal and factual sufficiency
    Findings of fact in a bench trial have the same “force and dignity as a jury’s
    verdict upon questions.” Village Place, Ltd. v. VP Shopping, LLC, 
    404 S.W.3d 115
    ,
    124 (Tex. App.--Houston [1st Dist.] 2013, no pet.) (quoting Anderson v. City of Seven
    Points, 
    806 S.W.2d 791
    , 794 (Tex. 1991)). As a result, the trial court’s findings of
    fact are subject to sufficiency challenges under the same standards that a reviewing
    court uses in evaluating the sufficiency of evidence to support a jury verdict. 
    Id. Unchallenged findings
    of fact are binding on the parties and on this court. 
    Id. To determine
    whether legally sufficient evidence supports a challenged finding
    of fact, the reviewing court considers evidence favorable to the finding if a reasonable
    fact-finder could consider it, and disregards evidence contrary to the challenged
    finding unless a reasonable fact-finder could not disregard it. City of Keller v.
    Wilson, 
    168 S.W.3d 802
    , 827 (Tex. 2005); Village 
    Place, 404 S.W.3d at 124
    . A legal
    sufficiency challenge is sustained only if the record demonstrates: (1) a complete
    -11-
    absence of evidence of a vital fact; (2) the court is barred by the 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 mere scintilla; or (4) the
    evidence conclusively establishes the opposite of the vital fact. City of 
    Keller, 168 S.W.3d at 810
    ; Village 
    Place, 404 S.W.3d at 124
    .
    In determining whether factually sufficient evidence supports a challenged
    finding, the reviewing court considers and weighs all of the evidence and set aside
    the judgment only if it is so contrary to the overwhelming weight of the evidence as
    to be clearly wrong and unjust. Village 
    Place, 404 S.W.3d at 124
    (citing Arias v.
    Brookstone, L.P., 
    265 S.W.3d 459
    , 468 (Tex. App.--Houston [1st Dist.] 2007, pet.
    denied)). None of the Siddiqui’s issues assail the factual sufficiency of the evidence
    supporting the trial court’s findings, except for the Siddiqui’s attack on the scienter
    element of the fraud findings.
    The trial court is the sole judge of the credibility of the witnesses and the
    weight to be given their testimony. Matter of Marriage of Merrikh, 14-14-00024-CV,
    
    2015 WL 2438770
    , at *5 (Tex. App.--Houston [14th Dist.] May 19, 2015, n.p.h.)
    (mem. op.); Barrientos v. Nava, 
    94 S.W.3d 270
    , 288 (Tex. App.--Houston [14th Dist.]
    2002, no pet.). Because there is a complete reporter’s record in this case, the trial
    court’s findings will not be disturbed if there is any evidence of probative force to
    support them. 
    Id. This court
    must give effect to the intended findings of the trial
    -12-
    court and affirm the judgment if it can be upheld on any legal theory that finds
    support in the evidence; this is based upon well-settled Texas law that in a nonjury
    trial every reasonable inference and intendment supported by the record will be drawn
    in favor of the trial court’s judgment. Black v. Dallas Cnty. Welfare Unit, 
    835 S.W.2d 626
    , 630 n.10 (Tex. 1992); Merrikh, 
    2015 WL 2438770
    , at *5. An omitted
    finding, supported by the evidence, may be supplied by a presumption that it supports
    the judgment. 
    Black, 835 S.W.2d at 630
    n.10; Merrikh, 
    2015 WL 2438770
    , at *5.
    B.     Conclusions of law--de novo.
    The trial court’s conclusions of law are reviewed de novo. See BMC Software
    Belgium, N.V. v. Marchand, 
    83 S.W.3d 789
    , 794 (Tex. 2002). The court must uphold
    conclusions of law if the judgment can be sustained on any legal theory supported by
    the evidence. Greater Hous. German Shepherd Dog Rescue, Inc. v. Lira, 
    447 S.W.3d 365
    , 370 (Tex. App.--Houston [14th Dist.] 2014, pet. filed). Incorrect conclusions
    of law will not require a reversal if the controlling findings of fact will support a
    correct legal theory. Sears, Roebuck and Co. v. Nichols, 
    819 S.W.2d 900
    , 903 (Tex.
    App.--Houston [14th Dist.] 1991, writ denied). Conclusions of law are not subject
    to challenge for factual insufficiency, but the court may review the legal conclusions
    drawn from the facts to determine their correctness. 
    Id. (citing Brown
    v. Brown, 
    236 S.W.3d 343
    , 348 (Tex. App.--Houston [1st Dist.] 2007, no pet.)).
    -13-
    ARGUMENT AND AUTHORITY
    The Siddiquis argue that there is legally insufficient evidence to support any
    element of any of the causes of action adjudged against them--no evidence of duties,
    no evidence of breaches, and no evidence of damages. Qureshi and Ali will
    demonstrate that, contained in the four days of trial testimony and hundreds of pages
    of trial exhibits, there is far more than a scintilla of evidence to sustain the damages
    assessed against the Siddiquis.
    Certain matters raised by the Siddiquis are not addressed because they have no
    affect on the propriety of the judgment. For instance, the Siddiquis question whether
    Qureshi and Ali have standing to seeks compensation for the gross overcharges
    Suncoast (the Siddiquis’ construction company) made to Blueline. Because the
    judgment does not award damages for the overcharges, even if the Siddiquis are
    correct they judgment will still stand. Similarly, though the trial court found that the
    Siddiquis were unjustly enriched, no damages were awarded for that cause of action--
    whether the trial court’s finding was correct will have no effect on the propriety of
    the judgment (Response to Siddiqui Issue No. 4).
    I.    The trial court’s fraud finding is supported by legally sufficient evidence
    (Response to Siddiqui Issue No. 2).
    A.     There is no need for the trial court to make particularized fact
    findings.
    The Siddiquis state that the trial court issued only “global, generic findings”
    -14-
    about the Siddiquis’ fraudulent conduct, and that they requested the court “render
    additional findings identifying and explaining the misrepresentations and non-
    disclosures.” Siddiqui Br. at 71. It is unclear whether the Siddiquis are claiming that
    the court’s refusal to enter the requested additional findings was error. The court was
    under no duty to issue evidentiary findings; in other words, it is permissible for the
    trial court to make findings of fact that are identical to broad-form jury submissions.
    Additional findings are not required if the original findings of fact and
    conclusions of law “properly and succinctly relate the ultimate findings of fact and
    law necessary to apprise [the party] of adequate information for the preparation of his
    or her appeal.” Flanary v. Mills, 
    150 S.W.3d 785
    , 792 (Tex. App.--Austin 2004, pet.
    denied), quoting In re Marriage of Morris, 
    12 S.W.3d 877
    , 886 (Tex. App.--
    Texarkana 2000, no pet.) (quoting Finch v. Finch, 
    825 S.W.2d 218
    , 221 (Tex. App.--
    Houston [1st Dist.] 1992, no writ)). A trial court’s duty to enter additional findings
    of fact and conclusions of law is finite; that is, it need only enter additional findings
    and conclusions on ultimate or controlling issues. In re M.M.M., 
    229 S.W.3d 821
    ,
    823 (Tex. App.--Fort Worth 2007, no pet.); In re Marriage of Jameson, No.
    07–02–00476–CV, 
    2004 WL 237829
    , at *1 (Tex. App.--Amarillo 2004, pet. denied).
    Findings that are evidentiary in nature do not fall within that scope. In re 
    M.M.M., 229 S.W.3d at 823
    ; In re Marriage of Jameson, 
    2004 WL 237829
    , at *1. Thus,
    ultimate or controlling issues or facts are those essential to the cause of action or
    -15-
    defense. In re 
    M.M.M., 229 S.W.3d at 823
    ; In re Marriage of Jameson, 
    2004 WL 237829
    , at *1. If the fact is necessary to form the basis of the judgment, then it is an
    ultimate or controlling one. In re 
    M.M.M., 229 S.W.3d at 823
    ; In re Marriage of
    Jameson, 
    2004 WL 237829
    , at *1.
    In contrast, an evidentiary fact is one that may be considered by the factfinder
    in deciding the controlling issue and is necessarily embraced in the determination of
    the ultimate issue. In re 
    M.M.M., 229 S.W.3d at 823
    ; In re Marriage of Jameson,
    
    2004 WL 237829
    , at *1. For example, requests that, in essence, ask the court to
    explain what it relied on or how it arrived at a particular finding are evidentiary and
    need not be addressed by the trial court. In re 
    M.M.M., 229 S.W.3d at 823
    ; In re
    Marriage of Jameson, 
    2004 WL 237829
    , at *1. The ultimate or controlling issue or
    fact here is whether fraud was committed. The trial court in its findings did address
    the ultimate or controlling issue or fact. See In re 
    M.M.M., 229 S.W.3d at 823
    ; In re
    Marriage of Jameson, 
    2004 WL 237829
    , at *1. In contrast, the Siddiquis’ proposed
    findings, which address how or why the trial court resolved the ultimate or controlling
    fact issue in a particular way, are merely evidentiary and need not be entered by the
    trial court. See In re 
    M.M.M., 229 S.W.3d at 824
    (holding that father’s proposed
    additional findings addressing why the trial court found that termination of mother’s
    rights was not in the children’s best interest was merely evidentiary and thus, the trial
    court had no duty to enter them); In re Marriage of Jameson, 
    2004 WL 237829
    , at *2
    -16-
    (holding that mother’s proposed finding that simply addressed how or why the trial
    court concluded that it was in the child’s best interest for the father to designate the
    primary residence of the child was merely evidentiary and need not be entered by the
    trial court).
    B.       The Siddiquis owed Qureshi and Ali a duty to disclose material
    facts, and breached that duty.
    A failure to disclose information will not support a fraud finding in the absence
    of evidence of a duty to disclose. Ins. Co. of N. Am. v. Morris, 
    981 S.W.2d 667
    , 674
    (Tex. 1998). The existence of a duty to disclose is a matter of law for the court to
    decide. Bradford v. Vento, 
    48 S.W.3d 749
    , 755 (Tex. 2001); Rivers v. Charlie
    Thomas Ford, Ltd., 
    289 S.W.3d 353
    , 359 (Tex. App.--Houston [14th Dist.] 2009, no
    pet.). A duty to disclose may arise
    (1)      when the parties have a confidential or fiduciary relationship;
    (2)      when one party voluntarily discloses information, which gives rise to the
    duty to disclose the whole truth;
    (3)      when one party makes a representation, which gives rise to the duty to
    disclose new information that the party is aware makes the earlier
    representation misleading or untrue; or
    (4)      when one party makes a partial disclosure and conveys a false
    impression, which gives rise to a duty to speak.
    -17-
    White v. Zhou Pei, 
    452 S.W.3d 527
    , 538 (Tex. App.--Houston [14th Dist.] 2014, no
    pet.), citing Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 
    237 S.W.3d 379
    , 385 (Tex. App.--Houston [14th Dist.] 2007, no pet.). To support an
    action for fraud by nondisclosure, the concealed information must be material.
    
    Bradford, 48 S.W.3d at 754-55
    . Information is considered “material” if it is such that
    a reasonable person would attach importance to it and would be induced to act on it
    in determining his choice of actions in the matter. 
    White, 452 S.W.3d at 538
    ; Citizens
    Nat’l Bank v. Allen Rae Invs., Inc., 
    142 S.W.3d 459
    , 478-79 (Tex. App.--Fort Worth
    2004, no pet.) (citing Am. Med. Int’l, Inc. v. Giurintano, 
    821 S.W.2d 331
    , 338 (Tex.
    App.--Houston [14th Dist.] 1991, no writ)).
    As discussed below, the Siddiquis owed Qureshi and Ali fiduciary duties. See
    infra § II(A). That alone is enough to trigger a duty to disclose. But that duty was
    also triggered by the Siddiquis’ partial disclosures, and their learning of new
    information related to earlier disclosures.      Take, for instance, the Siddiquis’
    discussion of whether they misrepresented the ownership of the Bammel tract. See
    Siddiqui Br. at 76-80. The Siddiquis claim they represented only that they “owned”
    the property, and did not represent that they had title to it. The disclosure of the
    general ownership of the property is just a partial disclosure, which triggered the duty
    to disclose the rest of the story--who held legal title, and how it might be transferred
    into an entity in which Qureshi and Ali were participating. So, while the statement
    -18-
    that the Siddiquis “owned” the property technically may not have been a
    misrepresentation, it did trigger the duty to disclose other material facts relating to the
    title. The Siddiquis breached that duty, to the detriment of Qureshi and Ali.
    C.     The Siddiquis made multiple misrepresentations or nondisclosures
    to Qureshi and Ali, causing damages.
    During the entire course of their business relationship, the Siddiquis’ behavior
    toward Qureshi and Ali was shot through with misrepresentations, nondisclosures,
    and generally oppressive and hostile conduct. Any small sample of would be
    sufficient to defeat the Siddiquis’ multifarious legal sufficiency challenges; this is a
    digest of some of the more notable examples:
    -      misrepresentation or nondisclosure of title ownership of the Bammel
    property. Siddiqui Br. at 79-80, RR 2:65, RR 3:47; RR 4:175-78.
    -      misrepresentation or nondisclosure of the costs of finishing construction
    on the Bammel property. RR 3:54-106; RR 4:178-82; RR 5:132-33.
    -      misrepresentation or nondisclosure of the cost of construction at the
    Antoine location. RR 3:106-150, 178-90 (particular misrepresentations
    in lien waivers, signed by subcontractors who never worked on the job);
    RR 4:4-66 (particular misrepresentations on spreadsheets--entries did
    not have corresponding checks), 195-97; RR 5:138-46 (FF&E
    misrepresentations).
    -      misrepresentation or nondisclosure of the size of the Antoine building.
    RR 3:111-27; RR 5:150-51.
    -      misrepresentation or nondisclosure regarding progress payments to
    Southwestern Bank and false statements on “bills paid” affidavits. RR
    3:147-77.
    -19-
    -      misrepresentation or nondisclosure regarding bank payment being made
    to Najeeb Siddiqui on behalf of Blueline, then transferred to Suncoast
    or Ajaz Siddiqui to pay Suncoast invoices, none of which were provided
    to Qureshi or Ali. RR 5:137-38, 153-55.
    D.     Qureshi and Ali established the Siddiquis’ scienter with
    circumstantial evidence.
    It is well-established that a plaintiff required to prove the state of mind of a
    defendant need not adduce direct evidence; it may instead rely upon circumstantial
    evidence. See Bentley v. Bunton, 
    94 S.W.3d 561
    , 596 (Tex. 2002) (discussing
    “malice” in a defamation case: “The defendant's state of mind can--indeed, must
    usually--be proved by circumstantial evidence.”); Transp. Ins. Co. v. Moriel, 
    879 S.W.2d 10
    , 22–23 (Tex. 1994) (discussing evidence of gross negligence as predicate
    for exemplary damages and stating, “We hereby reaffirm our holding that the
    defendant’s subjective mental state can be proven by direct or circumstantial
    evidence.”); Behee v. Mo. Pac. Ry. Co., 
    71 Tex. 424
    , 429, 
    9 S.W. 449
    (1888)
    (“Malice is rarely ever shown by direct evidence. It is commonly a state of mind
    indicated and inferable from other facts proved,--from language used, or acts, or both
    together. We infer a bad motive when an injurious act is intentionally done without
    legal excuse. The motive is not a bare fact of itself, susceptible of proof like any
    other fact; it is a conclusion deduced from acts or words.”); Turner v. Franklin, 
    325 S.W.3d 771
    , 783 (Tex. App.--Dallas 2010, pet. denied) (noting issues of state of mind
    “are not susceptible to being readily controverted and are best left to the
    -20-
    determination of the trier of fact”); French v. French, 
    385 S.W.3d 61
    , 69 (Tex. App.--
    Waco 2012, pet. denied) (citing Digby v. Texas Bank, 
    943 S.W.2d 914
    , 922 (Tex.
    App.--El Paso 1997, writ denied) (“[Malice] is proved by direct or (usually)
    circumstantial evidence.”).
    Part of the determination of a defendant’s state of mind is an assessment of the
    defendant’s credibility; this determination is left to the trial court as the fact-finder.
    See Volume Millwork, Inc. v. West Houston Airport Corp., 
    218 S.W.3d 722
    , 730 (Tex.
    App.--Houston [1st Dist.] 2006, pet. denied). The trial court can combine that
    assessment with the circumstantial evidence adduced by the claimant to find a
    particular state of mind or scienter. James J. Flanagan Shipping Corp. v. Del Monte
    Fresh Produce N.A., Inc., 
    403 S.W.3d 360
    , 369-70 (Tex. App.--Houston [1st Dist.]
    2013, no pet.).
    The trial court was able to assess the Siddiquis’ credibility and demeanor. That
    assessment, couple with the litany of misrepresentations and nondisclosures described
    above in section I(C), led the trial court to find scienter as an element of fraud--that
    the sheer volume and consistency of the Siddiquis’ misrepresentations and
    nondisclosures demonstrates that they were intentional. There is thus legally and
    factually sufficient to support the trial court’s finding.
    -21-
    II.   The trial court’s finding of a breach of fiduciary duties is supported by
    more than a scintilla of evidence (Response to Siddiqui Issue No. 1).
    The trial court found that the Siddiquis breached the fiduciary duties they owed
    Qureshi and Ali. CR 2:1172. This was based on the parties’ informal fiduciary
    relationship. 
    Id. The elements
    of a breach-of-fiduciary-duty claim are: (1) a fiduciary
    relationship between the plaintiff and defendant; (2) a breach of the duty by the
    defendant; and (3) injury to the plaintiff or benefit to the defendant because of the
    defendant's breach. See Burrow v. Arce, 
    997 S.W.2d 229
    , 237 (Tex. 1999); Lundy v.
    Masson, 
    260 S.W.3d 482
    , 501 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).
    A.     The Siddiquis and Qureshi and Ali were in an informal fiduciary
    relationship.
    Texas courts recognize an informal fiduciary duty that arises from “a moral,
    social, domestic or purely personal relationship of trust and confidence.” Meyer v.
    Cathey, 
    167 S.W.3d 327
    , 331 (Tex. 2005); Associated Indem. Corp. v. CAT
    Contracting, Inc., 
    964 S.W.2d 276
    , 287 (Tex. 1998); see also Schlumberger Tech.
    Corp. v. Swanson, 
    959 S.W.2d 171
    , 176 (Tex. 1997). “[T]he law recognizes the
    existence of confidential relationships in those cases ‘in which influence has been
    acquired and abused, in which confidence has been reposed and betrayed.’” Crim
    Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 
    823 S.W.2d 591
    , 594 (Tex.
    1992) (quoting Texas Bank & Trust Co. v. Moore, 
    595 S.W.2d 502
    , 507 (Tex. 1980))
    -22-
    Though generally informal fiduciary relationships require that the relationship
    pre-exist the parties’ business relationship, Texas courts have, however, recognized
    that an informal fiduciary duty may exist between the shareholders in a closely held
    corporation, depending on the circumstances. See generally Willis v. Donnelly, 
    199 S.W.3d 262
    , 277 (Tex. 2006); Miller v. Miller, 
    700 S.W.2d 941
    , 945–46 (Tex. App.--
    Dallas 1985, writ ref’d n.r.e.) (stating that shareholders’ intimate knowledge of
    company’s affairs supported finding a fiduciary relationship); Tuck v. Miller, 
    483 S.W.2d 898
    , 905 (Tex. Civ. App.--Austin 1972, writ ref’d n.r.e.) (op. on reh’g)
    (holding that superior business expertise, among other factors, supported a finding
    of a confidential relationship); see also Allen v. Devon Energy Holdings, L.L.C., 
    367 S.W.3d 355
    , 391 (Tex. App.--Houston [1st Dist.] 2012, judgm’t set aside by agr.) (op.
    on reh’g) (recognizing a formal fiduciary duty between co-shareholders of an LLC
    in the context of a redemption where the majority ownership interest had dominant
    control over the operation and management of the business); Vejara v. Levior lnt’l
    LLC, No. 04–11–00595–CV, 
    2012 WL 5354681
    , at *5 (Tex. App.--San Antonio Oct.
    31, 2012, pet. denied) (mem. op.) (holding that “Vejara’s control and intimate
    knowledge of the company’s affairs and plans gave rise to the existence of an
    informal fiduciary duty to Levior”). In particular, when certain shareholders retain
    “ sole and exclusive control of the management, business and affairs” of the
    company, they owe fiduciary obligations to the shareholders excluded from that
    -23-
    control. Guevara v. Lackner, 
    447 S.W.3d 566
    , 581 (Tex. App.--Corpus Christi 2014,
    no pet.).
    And that is precisely what happened here--the Siddiquis retained sole and
    exclusive control of Blueline, so that they could hide critical information from
    Qureshi and Ali. RR 5:15-18, 151-153. This oppressive behavior included self-
    dealing--the Siddiquis prepared the construction invoices on behalf of Suncoast, then
    approved them on behalf of Blueline, without ever letting Qureshi and Ali see them..
    RR 5:137-38, 153-55. The Siddiquis’ challenge to the existence of the fiduciary
    relationship, and their liability for the breach of that duty, should be overruled.
    B.     Suncoast, too, is liable for the breach of the Siddiquis’ fiduciary
    duties (Response to Siddiqui Issue No. 5).
    The trial court expressly found that “[t]he Siddiquis and Suncoast were
    engaged in a conspiracy against Qureshi and Ali.” CR 1174. “[When] a third party
    knowingly participates in the breach of a duty of a fiduciary, such party becomes a
    joint tortfeasor with the fiduciary and is liable as such.” Kinzbach Tool Co. v.
    Corbett–Wallace Corp., 
    160 S.W.2d 509
    , 514 (Tex. 1942). Kinzbach holds that
    liability for breach of fiduciary duty may be imposed even in the absence of a
    fiduciary relationship when a nonfiduciary is knowingly complicit in aiding or
    inducing a breach of trust. Thus, Suncoast’s liability for breach of fiduciary duty is
    independent of whether Suncoast itself owed a fiduciary duty.
    -24-
    The Siddiquis challenge the trial court’s conspiracy finding solely on the basis
    that conspiracy requires an underlying wrongful act, and “[b]ecause there was no
    fraud or breach of fiduciary duty by the Siddiquis or Suncoast, there is no underlying
    tort and the conspiracy claim fails as a matter of law.” Siddiqui Br. at 100-01. The
    Siddiquis challenge to the conspiracy finding is thus wholly dependent on its liability
    challenges, and thus need not be addressed separately.
    C.    The damages flowing from the breach of fiduciary duty have not
    been separately challenged.
    The Siddiquis’ challenge to the damages arising from their breach of the
    fiduciary duty they owed to Qureshi and Ali is premised entirely on their challenge
    to the existence of the duty. See Siddiqui Br. at 64. Therefore, Qureshi and Ali will
    not address it separately.
    III.   Qureshi and Ali introduced legally sufficient evidence to support an award
    of restitution damages for the Siddiquis’ fraud (Response to Siddiqui Issue
    No. 3).
    Under Texas law, one who is induced by fraud to enter into a contract may
    elect an equitable remedy of restitution or rescission that would restore him to the
    position he would have been in had he not been the victim of fraud. See Italian
    Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 
    341 S.W.3d 323
    , 346 (Tex.
    2011) (“When rescission of a lease is appropriate for breach of the implied warranty
    of suitability, a tenant is entitled to be restored to the position it would have been in
    -25-
    had it not leased the premises that turned out to contain a latent defect rendering the
    premises commercially unsuitable.”); see also Quigley v. Bennett, 
    227 S.W.3d 51
    , 56-
    57 (Tex. 2007) (Brister, J., concurring and dissenting) (discussing restitution damages
    in context of fraud and stating that “restitution can be recovered in fraud cases” but
    it “is generally not listed, perhaps because it is an equitable rather than a legal
    remedy, or because it is available even without a showing of fraud”); Henry S. Miller
    Co. v. Bynum, 
    836 S.W.2d 160
    , 162-63 (Tex. 1992) (holding, in DTPA case, that
    evidence supported award of damages in total amount of plaintiff's capital investment
    in lease venture for beauty shop, minus amount plaintiff received back from venture,
    including money received when plaintiff sold beauty shop business, as part of
    plaintiff's “actual loss” even though plaintiff did not present evidence to support “out-
    of-pocket” or “benefit-of-the-bargain” measure of damages); RESTATEMENT (FIRST)
    OF RESTITUTION § 152 (1937) (“Where a person is entitled to restitution from another
    because the other has obtained his services, or services to which he is entitled, by
    fraud, duress or undue influence, the measure of recovery for the benefit received by
    the other is the market value of such services irrespective of their benefit to the
    recipient.”) (quoted in 
    Quigley, 227 S.W.3d at 56
    n.8 (Brister, J., concurring and
    dissenting)).
    “‘[R]estitution’ . . . means the act of restoring or a condition of being restored.”
    Cruz v. Andrews Restoration, Inc., 
    364 S.W.3d 817
    , 825 (Tex. 2012). Restitution is
    -26-
    generally defined as an equitable remedy under which a person is restored to his or
    her original position before the loss or injury. In re J.R., 
    907 S.W.2d 107
    , 109 (Tex.
    App.--Austin 1995, no writ). Restitution “involves restoring property or money taken
    from the plaintiff,” and, “[u]nlike other contractual damages, restitution focuses on
    forcing the defendant to disgorge benefits that it would be unjust to keep, rather than
    on compensating the plaintiff.” City of Harker Heights v. Sun Meadows Land, Ltd.,
    
    830 S.W.2d 313
    , 317 (Tex. App.--Austin 1992, no writ). “‘[R]escission is one of the
    principal asset-based remedies in restitution,’ and it ‘restore[s] the parties to the status
    quo ante by unwinding the contractual exchange instead of pressing it forward.’”
    
    Cruz, 364 S.W.3d at 825
    (quoting RESTATEMENT (THIRD)               OF   RESTITUTION    AND
    UNJUST ENRICHMENT § 37, cmt. a). “Rescission is a form of restitution that applies
    if the transaction may still be unwound; if it cannot, a plaintiff may sue for damages.”
    
    Id. The First
    Court of Appeals once framed its discussion of this restitutional
    measure of damages in the context of an election of remedies
    In addition to these alternative measures of damages, [the out-of-pocket
    measure and the benefit-of-the-bargain measure], Texas courts have
    long held under general principles of common-law fraud that one who
    is induced by fraud to enter into a contract has a choice of remedies: he
    may either recover the monetary damages flowing from the fraud or he
    may elect the equitable remedy of rescission in lieu of damages and
    demand a return of any amount paid. This election of remedies
    recognizes that, depending on the circumstances, a defrauded party may
    -27-
    not be made w hole by a recovery of actual damages, but instead may
    need an equitable remedy such as rescission.
    Nelson v. Najm, 
    127 S.W.3d 170
    , 176 (Tex. App.--Houston [1st Dist.] 2003, pet.
    denied) (internal citations omitted).     Recently, the Texas Supreme Court has
    reaffirmed that “[r]escission is an equitable remedy and, as a general rule, the measure
    of damage is the return of the consideration paid, together with such further special
    damage or expense as may have been reasonably incurred by the party wronged on
    account of the contract.” Italian 
    Cowboy, 341 S.W.3d at 345
    .
    As a result of the Siddiquis’ fraudulent conduct, Qureshi and Ali were induced
    to invest $212,500 apiece in a venture that turned out to be worthless. They also
    made another $89,482.68 in payments they would not have made absent the initial
    fraud. RR 4:155-56; RR 5:6, 18-19. Under Texas law, they are entitled to be placed
    in the position they would have been had the fraud not occurred, so they are entitled
    to $514,482.68 in restitution damages. The Siddiquis’ challenge to the damage award
    should thus be overruled.
    IV.   Exemplary damages were properly awarded (Response to Siddiqui Issue
    No. 6).
    The Siddiquis’ challenge to the trial court’s award of exemplary damages is
    premised entirely on their challenge to the underlying liability findings. Siddiqui Br.
    at 101-02. Accordingly, Qureshi and Ali will not address it separately.
    -28-
    V.    The Siddiquis are not entitled to a judgment in their favor (Response to
    Siddiqui Issue No. 7).
    “[F]raud vitiates whatever it touches[.]” Estate of Stonecipher v. Estate of
    Butts, 
    591 S.W.2d 806
    , 809 (Tex. 1979); Allen v. Devon Energy Holdings, L.L.C., 
    367 S.W.3d 355
    , 368 (Tex. App.--Houston [1st Dist.] 2012, pet. granted, j’ment set aside,
    remanded by agmt.). The Siddiquis lost money on the venture they fraudulently
    induced Qureshi and Ali to join; the Siddiquis’ fraud vitiates the Siddiquis’ purported
    right to transfer some of their losses to Qureshi and Ali. The Siddiquis’ issue on the
    trial court’s refusal to award them damages should thus be overruled.
    CONCLUSION AND PRAYER
    The Siddiquis’ scattershot attack on the trial court’s judgment has failed to hit
    its mark. Qureshi and Ali adduced legally (and factually) sufficient evidence of the
    duties owed by the Siddiquis, the Siddiquis’ repeated breaches of those duties, and
    of the restitution damages to which Qureshi and Ali are entitled. Qureshi and Ali
    therefore pray this court affirm the judgment of the trial court, and for such other and
    further relief to which they may be entitled.
    -29-
    Respectfully submitted,
    KELLY, DURHAM & PITTARD, L.L.P.
    BY:     /s/ Peter M. Kelly
    Peter M. Kelly (Lead Counsel)
    State Bar No. 00791011
    1005 Heights Boulevard
    Houston, Texas 77008
    Telephone: 713.529.0048
    Facsimile: 713.529.2498
    Email: pkelly@texasappeals.com
    Counsel for Appellees
    CERTIFICATE OF COMPLIANCE
    This document complies with the typeface requirement of TEX. R. APP. P.
    9.4(e) because it has been prepared in conventional typeface no smaller than 14-point
    for text and 13-point for footnotes. This document also complies with the word-count
    limitations of TEX. R. APP. P. 9.4(i) because it contains 7,320 words, excluding any
    parts exempted by TEX. R. APP. P. 9.4(i)(1).
    /s/ Peter M. Kelly
    Peter M. Kelly
    -30-
    CERTIFICATE OF SERVICE
    A true and correct copy of this Appellees’ Brief has been forwarded to all
    counsel of record on June 26, 2015, as follows:
    Vincent L. Marable III                              Via Facsimile: 979.532.5331
    PAUL WEBB, P.C.
    221 N. Houston
    Wharton, Texas 77488
    trippmarable@sbcglobal.net
    Ted A. Cox
    TED A. COX, P.C.
    1225 W. 34th Street
    Houston, Texas 77018
    ted@tedacox.com
    James E. Bradley
    BRADLEY LAW FIRM
    5718 Westheimer, Ste 1525
    Houston, Texas 77057
    /s/ Peter M. Kelly
    Peter M. Kelly
    -31-