                            NUMBER 13-07-00621-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


BILL E. ART,                                                                Appellant,

                                           v.

SCHMART ENGINEERING, INC. AND
JENNY SCHMIEDER, INDIVIDUALLY AND
AS REPRESENTATIVE OF THE ESTATE
OF RICHARD SCHMIEDER, DECEASED,                                            Appellees.


                   On appeal from the 172nd District Court
                        of Jefferson County, Texas.


                        MEMORANDUM OPINION


    Before Chief Justice Valdez and Justices Garza and Benavides
            Memorandum Opinion by Chief Justice Valdez

      Appellant, Bill Art, appeals from a judgment rendered in favor of appellees, SchmArt

Engineering, Inc. (“SchmArt Engineering”) and Jenny Schmieder. In nine issues, Art
challenges various aspects of the trial court’s judgment. We reverse and render in part

and affirm in part.

                                             I. BACKGROUND

        In 1996, Richard Schmieder and Art formed SchmArt Engineering, a closely held

corporation.     Richard, president of SchmArt Engineering, owned 51 percent of the

company, and Art, vice president of SchmArt Engineering, owned 49 percent of the

company. SchmArt Engineering developed engineering software and marketed it to

chemical plants along the Gulf Coast. Although SchmArt Engineering was involved in

numerous projects throughout the late 1990s, it was plagued by financial difficulties and

tax problems.       In 2001, Art left SchmArt Engineering and began working for Imes

Engineering (“Imes”), another engineering software company.

A.      Pleadings

        In February 2002, Art sued SchmArt Engineering and Richard for negligence, fraud,

shareholder oppression, and breach of fiduciary duty. SchmArt Engineering and Richard

answered with a general denial, and they asserted cross-claims against Art for, among

other things, breach of fiduciary duty, tortious interference with a business relationship,

conversion, and civil conspiracy.1

        On April 18, 2006, the trial court signed an order dismissing the case for want of

prosecution because it had been on the trial court’s docket for more than 18 months. On

April 26, 2006, Art filed an unverified motion to reinstate the case on the ground that he did

not intentionally delay the case. See TEX . R. CIV. P. 165a(3) (“A motion to reinstate shall

set forth the grounds therefor and be verified by the movant or his attorney.”). On May 12,
        1
         Schm Art Engineering and Richard also asserted claim s against Im es Engineering (“Im es”) for civil
conspiracy. Im es, however, was dism issed from the lawsuit before trial.
                                                     2
2006, SchmArt Engineering and Richard responded to the motion and argued that it should

be denied because Art did not (1) explain the reason for the delay, (2) verify the motion to

reinstate, or (3) assert that he diligently prosecuted the suit. Nevertheless, the trial court

reinstated the case on May 12, 2006.2

B.      Testimony

        A bench trial was held on June 5, 2007. At trial, Art testified that in 1998 SchmArt

Engineering owed payroll taxes, and the IRS subsequently assessed a $150,000 tax lien

on the company. As a result of the lien, SchmArt Engineering reduced Art’s salary by fifty

percent in order to reduce its expenses and repay the taxes that it owed. The reduced

salary created a financial hardship for Art, and he borrowed from SchmArt Engineering

against his interest in the company—which presumably was permissible despite the tax

lien—in order to offset his reduced salary. Art stated that he borrowed $81,348.76 from

SchmArt Engineering, and the loan benefitted the enterprise because it allowed him to stay

at the company and develop profitable software. Despite the loan, Art filed for bankruptcy

in 1999. The trial court admitted, without objection, Art’s bankruptcy file. It contained an

order, dated March 22, 2002, that disallowed SchmArt Engineering’s May 22,2000, claim

for $81,348.00 against Art’s bankruptcy estate.

        In February 2001, Art discussed SchmArt Engineering’s financial situation with

Richard, and Art tendered a resignation letter to Richard. Art was unemployed for several

months after leaving SchmArt Engineering, until he began working for Imes. While at

Imes, Art was engaged in engineering work, but he testified that he did not compete

against SchmArt Engineering even though his employment with SchmArt Engineering was

        2
          Richard died on August 9, 2006. The trial court ordered that Jenny, Richard’s wife, be substituted
as the plaintiff and cross-claim ant.
                                                     3
not governed by any non-competition or confidentiality agreement.

      Art testified that he wanted access to SchmArt Engineering’s software because it

was the company’s only real asset, and he believed that he was entitled to it because

Richard mismanaged the company and breached his fiduciary duty to the company. Art

further testified that Richard founded SchmArt Technologies, a software design company

in Malaysia, and SchmArt Technologies took business opportunities away from SchmArt

Engineering. Art believed that SchmArt Engineering’s software was worth $1 million. He

had heard that two companies, Valski, Inc. and Berwanger, Inc., were interested in

purchasing SchmArt Engineering for between $1 and $3.5 million. But, Richard would not

sell the company. Art, therefore, wanted the software without any of the tax liabilities

because he had “already paid his fair share.”

      Jenny, SchmArt Engineering’s bookkeeper, testified that she was in charge of

payroll and paying employee withholding taxes to the IRS. SchmArt Engineering’s original

withholding tax deficiency was $150,000, but the company’s back taxes had grown to over

$480,000 because of penalties and interest by the time the IRS placed a lien on SchmArt

Engineering’s assets. She testified that SchmArt Technologies paid SchmArt Engineering

for a license to use its software. Jenny did not believe that Richard had breached his

fiduciary duty to SchmArt Engineering. She reasoned that as SchmArt Technologies

developed an international market, it would purchase software licenses from SchmArt

Engineering, thereby increasing SchmArt Engineering’s revenue stream. On the other

hand, Jenny claimed that Art’s employment with Imes hurt SchmArt Engineering because

both companies competed for a similar contract, and Imes was awarded the contract.




                                           4
Regarding potential buyers, Jenny denied that there were any offers to purchase SchmArt

Engineering.

       Richard’s deposition testimony was read into the record at trial. He was questioned

by Art’s counsel regarding a $30,000 loan from “Funstuff,” and he responded that “[i]t’s the

Mafia in Baton Rouge. Does that suit you?” According to Richard, Funstuff charged a one

hundred percent interest rate for the $30,000 loan, but he agreed to it in order to keep

SchmArt Engineering running. He estimated that the software SchmArt Engineering had

developed was worth $1 million. Richard also testified that he borrowed $40,000 from

SchmArt Engineering in order to purchase a home.

       Susan Oliver, SchmArt Engineering’s attorney, testified that she had spent over 200

hours on the case at an hourly rate of $150. She claimed that her total bill was for $30,000

and that SchmArt Engineering was entitled to attorney’s fees based on its fraud and breach

of fiduciary duty claims.

C.     Judgment, Findings of Fact, and Conclusions of Law

       On July 9, 2007, the trial court entered a take nothing judgment on Art’s claims.

However, the trial court found in favor of Jenny on her negligence, fraud, constructive

fraud, and fraudulent inducement counter-claims and awarded Jenny $41,487.48 in

damages and $30,000 in attorney’s fees. Subsequently, on August 29, 2007, the trial court

made the following relevant findings of fact:

       4.      That Bill E. Art borrowed $81,348.00 from Schmart Engineering, Inc.
               which was not paid back to Schmart Engineering, Inc.

       5.      That the United States Bankruptcy Court, Western District of
               Louisiana, Lake Charles Division discharged the debt of $81,348.00



                                             5
              with respect to Schmart Engineering, Inc. in Cause Number 99-20819

              ....

       7.     That Richard Schmieder’s claim for $41,487.48, 51% of the
              $81,348.00, was not discharged by the Bankruptcy Court.

              ....

       9.     That Bill E. Art presented no evidence of any damage from the
              actions of Defendants.

The court also made the following legal conclusions:

       1.     That the bankruptcy case styled Bill E. Art; Case Number 99-20819,
              the United States Bankruptcy Court, Western District of Louisiana,
              Lake Charles Division did not list Richard Schmieder as an individual
              creditor, and did not discharge claims against Bill E. Art brought by
              Richard Schmieder, individually, and in his stead, in this lawsuit.

       2.     That this court finds, as a matter of law, that reasonable and
              necessary attorney’s fees were awarded herein pursuant to Texas
              Business and Commerce Code § 27.01, the Declaratory Judgment
              Act, and based upon breach of an oral or written contract, pursuant
              to Texas [Civil] Practice and Remedies Code § 38.001, Texas Rules
              of Civil Procedure 215, as well as pursuant to principles of equity.

The judgment itself, however, did not mention the business and commerce code, the

declaratory judgment act, a breach of any type of contract, the civil practice and remedies

code, or the rules of civil procedure. This appeal ensued.




                                       II. DISUCSSION

       By his first issue, Art contends that the evidence was legally insufficient to support

a finding of negligence, fraud, constructive fraud, and fraudulent inducement. In his

second and fourth issues, Art argues that the trial court erred in awarding attorney’s fees



                                             6
based upon a breach of contract claim, the declaratory judgment statute, fraud in a stock

transaction as governed by section 27.01 of the business and commerce code, discovery

sanctions under Rule 215 of the Texas Rules of Civil Procedure, and “principles of equity”

(collectively referred to as “additional claims”) because there is no evidence supporting

those claims.

A.     Standard of Review

       In reviewing a legal-sufficiency challenge, we examine the entire record to determine

if the proposition contrary to the jury’s finding is established as a matter of law, and we will

sustain the challenge only in that case. See City of Keller v. Wilson, 168 S.W.3d 802, 810

& n.16 (Tex. 2005) (citing, among other cases, King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003)) (listing four instances in which legal sufficiency challenge must be

sustained, as follows: (1) complete absence of vital fact; (2) rules of law or evidence

preclude according weight to only evidence offered to prove vital fact; (3) evidence offered

to prove vital fact is no more than a scintilla; and (4) evidence conclusively establishes

opposite of vital fact).

       Findings of fact in a case tried to the court have the same force and effect as a

jury’s verdict on questions and are reviewable for legal and factual sufficiency under the

same standards that govern jury findings. Anderson v. City of Seven Points, 806 S.W.2d

791, 794 (Tex. 1991); Min v. Avila, 991 S.W.2d 495, 500 (Tex. App.–Houston [1st Dist.]

1999, no pet.). We review the trial court’s conclusions of law independently to determine

their correctness from the facts found. Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787,

792 (Tex. App.–Houston [1st Dist.] 2001, no pet.); see In re K.R.P., 80 S.W.3d 669, 674




                                               7
(Tex. App.–Houston [1st Dist.] 2002, pet. denied) (stating that trial court’s legal conclusions

are not binding on appellate court and are reviewable de novo).

       In applying the legal-sufficiency standard, we must credit evidence that supports the

judgment if reasonable jurors could and disregard contrary evidence unless reasonable

jurors could not. City of Keller, 168 S.W.3d at 827. Accordingly, we review the evidence

in the light most favorable to the verdict, but disregard all contrary evidence that a

reasonable jury could have disbelieved. Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d

915, 917 (Tex. 2005) (citing City of Keller, 168 S.W.3d at 812). If the evidence falls within

the zone of reasonable disagreement, we may not invade the fact-finding role of the trial

judge, who alone determines the credibility of the witnesses, the weight to give their

testimony, and whether to accept or reject all or any part of that testimony. See City of

Keller, 168 S.W.3d at 822.

B.     Claims for Negligence and Fraud

       Negligence consists of three essential elements: (1) a legal duty owed by one

person to another; (2) a breach of that duty; and (3) damages proximately resulting from

the breach. Critchfield v. Smith, 151 S.W.3d 225, 230 (Tex. App.–Tyler 2004, pet. denied)

(citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311(Tex. 1987)).

       The elements of a common-law fraud claim are: (1) a material representation was

made; (2) the representation was false; (3) when the representation was made, the

speaker knew it was false or made it recklessly without any knowledge of the truth and as

a positive assertion; (4) the representation was made with the intention that it be acted

upon by the other party; (5) the party acted in reliance upon the representation; and (6) the



                                              8
party suffered injury.” Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962

S.W.2d 507, 524 (Tex. 1998). Fraudulent inducement claims include fraud elements in

addition to proof that one entered into a binding agreement as a result of the

misrepresentation. See Haase v. Glazner, 62 S.W.3d 795, 798-99 (Tex. 2001) (providing

that “with a fraudulent inducement claim, the elements of fraud must be established as they

relate to an agreement between the parties.”).

        Art argues that Richard’s claims for negligence and fraud are premised on an

alleged breach of his fiduciary duty to SchmArt Engineering. Art further argues that

Richard could not individually assert his claims because a breach of fiduciary claim belongs

to a corporation rather than a shareholder. See Faour v. Faour, 789 S.W.2d 620, 622

(Tex. App.–Texarkana 1990, writ denied) (citing Commonwealth of Mass. v. Davis, 140

Tex. 398, 168 S.W.2d 216 (1942)) (“A corporate shareholder has no individual cause of

action for personal damages caused solely by wrong done to the corporation.”).

        Regardless of whether Richard’s claims can be properly characterized as a breach

of fiduciary claim, there is no evidence in the record to support a finding of negligence

because there is no evidence of any legal duty that Art owed to Richard.3 See Critchfield,

151 S.W.3d at 230. There is also no evidence of fraud because there is no evidence that

Richard acted on any misrepresentation that Art may have made. See Johnson & Higgins

of Tex., Inc., 962 S.W.2d at 524.


        3
          W e also note that there is no evidence of a coshareholder duty between Richard and Art. A
coshareholder in a closely held corporation does not as a m atter of law owe a fiduciary duty to his
coshareholder. Redmon v. Griffith, 202 S.W .3d 225, 237 (Tex. App–Tyler 2006, pet. denied). Instead, the
existence of such a duty depends on the circum stances. Id. For exam ple, a fiduciary duty exists if a
confidential relationship exists. Id. The record in this case does not evidence any confidential relationship
between Art and Richard.



                                                     9
        Art’s first issue is sustained.

C.      Additional Claims as the Basis for Attorney’s Fees

        Art argues that the trial court could not award attorney’s fees because there was no

evidence supporty any claims that would justify such an award. We agree.

        The trial court based its award of attorney’s fees on the additional claims; however,

it did not find in Richard’s favor on any of those claims. In the judgment, the trial court

found that Art had committed negligence and fraud. The trial court’s relevant legal

conclusion reads:4

        That this court finds, as a matter of law, that reasonable and necessary
        attorney’s fees were awarded herein pursuant to Texas Business and
        Commerce Code § 27.01, the Declaratory Judgment Act, and based upon
        breach of an oral or written contract, pursuant to Texas [Civil] Practice and
        Remedies Code § 38.001, Texas Rules of Civil Procedure 215, as well as
        pursuant to principles of equity.

Nowhere in the findings of fact and conclusions of law did the trial court find that Art: (1)

violated section 27.01 of the business and commerce code, see TEX . BUS. & COM . CODE

ANN . § 27.01(e) (Vernon 2002) (“Any person who violates the provisions of this section

shall be liable to the person defrauded for reasonable and necessary attorney’s fees. . .

.”) (emphasis added); (2) breached an oral or written contract, see TEX . CIV. PRAC . & REM .

CODE ANN . § 38.001(8) (“A person may recover reasonable attorney’s fees from an

individual or corporation, in addition to the amount of a valid claim and costs, if the claim

is for an oral or written contract”) (emphasis added); or (3) abused the discovery process,

see TEX . R. CIV. P. 215.
        4
          W e note that the additional claim s are found only in the conclusions of law. However, findings of
fact and conclusions of law filed after a judgm ent are controlling if there is any conflict between them and the
judgm ent. Zorilla v. W ahid, 83 S.W .3d 247, 254 (Tex. App.–Corpus Christi 2002, no pet.)



                                                      10
       Moreover, the record does not contain any basis for a declaratory judgment. Under

the civil practice and remedies code, “[a] person interested under a deed, will, written

contract, or other writings constituting a contract . . . may have determined any question

of construction or validity arising under the instrument . . . and obtain a declaration of

rights, status, or other legal relations thereunder.” TEX . CIV. PRAC . & REM . CODE ANN . §

37.004 (Vernon 1997). Jenny offered two exhibits that were admitted during trial: Art’s

resignation letter and a list of salaries paid to Art’s and Richard’s family members and

alleged liabilities of Art, Richard, and SchmArt Engineering. Art’s exhibits consisted

primarily of SchmArt Engineering invoices, a notice of the IRS tax lein, and his bankruptcy

file. Thus, the record does not contain any written contract between Art and Richard.

Moreover, none of the testimony alludes to any oral contract between Art and Richard and

Jenny. We, therefore, are at a loss as to how the trial court could have issued a

declaratory judgment, if it did so at all.

       As a final possible ground for awarding attorney’s fees, the trial court concluded that

Richard was entitled to attorney’s fees under “principles of equity.” With few exceptions,

a party cannot recover attorney’s fees unless permitted by statute or contract. Tony Gullo

Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). Neither the record nor the trial

court’s disposition provide any justification for the exceptions to the general rule regarding

attorney’s fees. See generally Knebel v. Capital Nat'l Bank, 518 S.W.2d 795, 799 (Tex.

1974) (explaining how the “common fund” doctrine relates to attorney’s fees).

       Art’s second and fourth issues are sustained.

D.     Art’s Claims



                                             11
        By his ninth issue, Art contends that the trial court erred in denying the relief that he

sought. We construe this issue to be a challenge to the factual sufficiency of the evidence

underlying the trial court’s finding that “Bill E. Art presented no evidence of any damage

from the actions of Defendants.” In reviewing for factual sufficiency, we are to set aside

the finding “if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust.” See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curium).

Having reviewed the entire record, we cannot say that the trial court’s finding is so against

the overwhelming weight of the evidence as to be clearly wrong and unjust. Art’s ninth

issue is overruled.

                                            III. CONCLUSION

        The judgment against Art for $41,487.48 in damages and $30,000 in attorney’s fees

is reversed and a take nothing judgment is rendered, and the take nothing judgment

against Art is affirmed.5

                                                          ____________________
                                                          ROGELIO VALDEZ
                                                          Chief Justice

Memorandum Opinion delivered and
filed this the 9th day of October, 2008.




        5
         W e need not address Art’s rem aining issues, as they would not further affect the outcom e of this
appeal. See T EX . R. A PP . P. 47.1.



                                                    12
