Reversed and Remanded and Opinion Filed January 9, 2015




                                           Court of Appeals
                                                            S     In The


                                    Fifth District of Texas at Dallas
                                                       No. 05-12-01480-CV

    PLANO AMI L.P., GHANI MEDICAL INVESTMENTS, INC., MCG GROUP, INC.,
         MEHRDAD GHANI, NORTH DALLAS MEDICAL IMAGING, L.P.,
                     AND MICHAEL TABA, M.D., Appellants
                                   V.
                         ERWIN CRUZ, M.D., Appellee

                                 On Appeal from the 101st Judicial District Court
                                              Dallas County, Texas
                                       Trial Court Cause No. 10-16274-E

                                          MEMORANDUM OPINION
                                          Before Justices Francis and Lang-Miers1
                                                Opinion by Justice Francis
           This lawsuit involves the interests in two medical imaging centers, Plano AMI, L.P. and

North Dallas Medical Imaging, L.P. Dr. Erwin Cruz was involved in the formation of both

businesses with Mehrdad Ghani and Dr. Michael Taba. After NDMI was dissolved and Cruz

was expelled from Plano AMI, he sued his business associates and the other appellants alleging

claims for conversion, several breaches of fiduciary duty, and other wrongful conduct.

Following a two-week trial, the jury found in Cruz’s favor on all claims and awarded actual and

punitive damages. After reducing the remaining damage awards to correspond with Cruz’s

     1
       Justice David Lewis was a member of the original panel and participated in the submission of this case, but he did not participate in the
issuance of this opinion. See TEX. R. APP. P. 41.(b).
proportionate share and applying statutory caps on the punitive damages, the trial court rendered

a $4.7 million judgment substantially in accordance with the jury’s verdict.

       The dispositive issues on appeal concern the correctness of two trial court rulings: one

before trial and one after the testimony ended. First, the trial court determined on summary

judgment that Cruz established as a matter of law that he was a limited partner in Plano AMI and

so instructed the jury during the trial proceedings and in the jury charge. The second ruling came

at the close of the evidence when the trial court granted Cruz’s motion for instructed verdict on

appellants’ affirmative defense of waiver as it related to the dissolution of NDMI. Having

reviewed the record, we conclude both rulings were error. Because the rulings impacted the

entire presentation of the case, we conclude the rulings require that we reverse the trial court’s

judgment and remand for further proceedings consistent with this opinion.

                                 I. FACTUAL AND PROCEDURAL HISTORY

                                 A. Formation of NDMI and Plano AMI

       In 2002, Mark Mendez, Ghani, and Cruz began discussions about forming a medical

imaging business. Each would have a particular role: Cruz was to persuade his medical

colleagues to refer patients to the center while Ghani and Mendez’s roles were related to

financial/construction and technical matters, respectively. Limited partnership units would be

sold to physicians so they would have an incentive to refer patients.

       The business was formed as NDMI in April 2002 and opened in the same building as

Cruz’s medical office. Mendez, Ghani, and Cruz each held a 30.33% limited partner interest. In

addition, 1% was held by the corporate general partner, MCG Group, Inc., and the remaining 8%

was held by the physician investors as limited partners. Taba was one of the physician investors.

       Not long after the center opened, Cruz and Mendez got into a dispute, which ultimately

led to Cruz and Ghani using the “bad boy” provision of the partnership agreement to expel

                                               –2–
Mendez from NDMI. Mendez was paid nothing for his interest, which was split evenly between

Cruz and Ghani. Mendez sued Cruz, Ghani, NDMI, and MCG in 2004 and settled the suit for

$300,000.

       Meanwhile, NDMI began to show a profit and, in 2004, Cruz, Ghani, and Taba created

Ghani Medical Investments, Inc. (GMI) and opened a second imaging center, Plano AMI.

GMI’s sole asset was its interest in Plano AMI. The parties disputed the ownership structure of

this entity. Specifically, Ghani and Taba asserted that 60% of Plano AMI was owned by the

corporate general partner, GMI, while physician investors owned the remaining 40% interest as

limited partners.   Cruz, Ghani, and Taba, in turn, each held one-third of the GMI stock.

According to Ghani, Cruz (a neurologist) and Taba (an orthopedic surgeon) preferred this

structure because they did not want referring physician investors to know that they owned such

large shares in the company. In contrast, Cruz claimed he, Ghani, and Taba each owned 24%

interest in Plano AMI as limited partners; GMI owned 1% as the corporate general partner; and

physician investors owned the remainder. Under either scenario, Cruz, Ghani, and Taba owned

equal interest in Plano AMI, directly or indirectly.

                                      B. Management of the Centers

        Ghani managed the day-to-day operations of both centers until a management company

was hired in 2005. The management company was paid a fee of 10% of the gross billings,

averaging $170,000 to $180,000 per year for each center. To save money, in mid-2006, the

centers decided to use in-house management and Ghani was again in charge of the daily

operation of each center; he believed he should be compensated.        The NDMI partnership

agreement precluded any such compensation, but the Plano AMI partnership agreement

authorized fair and reasonable compensation to the general partner or its affiliates.

Consequently, in November 2007, GMI authorized Ghani to draw a salary of $8,000 per month

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for acting as president of GMI and managing Plano AMI. In addition, GMI authorized Taba to

receive $2,500 per month for providing contrast services for patients. Evidence suggested the

minutes documenting this authorization, however, were “backdated,” and although they reflect

Cruz was present at the meeting, Cruz denied approving any such salary, attending any meeting

to discuss a salary, or knowing it had been awarded.

       While managing the centers, Ghani hired his wife, Rona, to work as the marketing

director. Rona earned a salary as well as commissions on MRI and CAT scan referrals. Cruz

was aware Rona would be paid a monthly salary, but he denied knowing she was also being paid

a commission. Evidence at trial suggested Ghani paid Rona commissions on referrals from

doctors, whether she originated them or not. The record reflects Ghani paid Rona an average of

$80,000 annually, but had never paid any marketing employee a similar amount. Moreover, in a

matter unrelated to her compensation, evidence showed Rona forged the signature of a former

employee, Kimberly Ault, on a non-compete agreement, which resulted in Ault’s termination

from a new job. Ault sued, and NDMI paid to settle the claim. Cruz testified he was never told

about the Ault litigation, nor was he informed Ghani paid litigation expenses and the settlement

from NDMI and Plano AMI funds. Cruz learned of the litigation during this lawsuit.

                                        C. Dissolution of NDMI

       In the spring of 2007, Cruz, Taba, and Ghani began discussing the sale of the centers

after hearing that hospitals were going to enter the market for imaging centers. They hired a

broker to market the centers to potential buyers and set a $5.9 million asking price and a $4.5

million minimum price. Although they had several interested prospects, they did not receive a

contract. One stumbling block appeared to be a requirement that potential buyers put up a

$50,000 nonrefundable earnest money deposit as a condition to examine the centers’ books.




                                              –4–
Ultimately, no deal was made and in September 2008, much to Cruz’s displeasure, Ghani

terminated the broker’s contract.

       By that time, there were “very obvious tensions” between Cruz and Ghani. Cruz was

concerned that Ghani was manipulating control of the partnerships, running both as one and

moving money back and forth.         He also was concerned about Ghani’s treatment of the

partnerships’ other limited partners and complained he could no longer tolerate Ghani’s

“despotism.” Cruz told Taba that he and some of the other NDMI limited partner-investors were

discussing the possibility of legal action against Ghani, and Taba tried to talk him out of it. Two

former employees claimed Ghani was looking for a way to exclude Cruz from the partnerships.

       During this same time, NDMI partnership distributions stopped. Ghani told Cruz that

NDMI’s business was failing. He told Cruz there “were not enough scans coming in, not a lot of

business, reimbursements were going down, referrals were down,” and “if we continue on this

path, we may go broke.” At trial, Ghani explained the issues: the office-space lease was expiring

and would have to be renewed for a five-year-period; the MRI machine was nearing the end of

its recommended life; three of the key referring physicians were relocating and wanted to redeem

their partnership shares; the inability to bring other physicians into the office space; and

declining insurance reimbursement rates.       Nevertheless, Ghani acknowledged NDMI was

“making as much or more money than it had ever made before.”

       On December 5, 2008, Cruz and Ghani, acting as directors of NDMI’s general partner,

adopted a resolution to wind up NDMI and to authorize Ghani to oversee the dissolution. Cruz

signed the minutes of the meeting as secretary. That same day, acting as NDMI partners, they

signed a consent to dissolution. At some point, Cruz met with Ghani and suggested they bring in

Reza Nabavi and his 20+ clinics as new referrals. Ghani told Cruz it was too late because he had

already committed the machines to a new buyer. NDMI was ultimately shut down in April 2010.

                                               –5–
In April or May, Cruz saw the MRI machines being removed from the NDMI offices. He

noticed that Nabavi was present. Cruz then learned that Ghani and Nabavi had formed a new

business, Mesquite AMI, and the NDMI machines were being sold to Mesquite AMI. Ghani and

Nabavi created Mesquite AMI in December 2008, the same time Ghani was dissolving NDMI.

Further, Cruz testified that during the course of this litigation, he learned the 2008 net income

reported for NDMI was $403,530 with $279,000 paid out in partner distributions, and the 2009

net income reported for NDMI was $593,916 with only $50,000 paid out in partner distributions.

                                D. Usurpation of Corporate Opportunity

       In addition to allegations that Ghani mismanaged the partnerships and engaged in self-

dealing, Cruz also complained that Ghani breached his fiduciary duties by usurping a corporate

opportunity when he opened a competing business. In July 2008, a letter signed by Ghani and

Taba was sent to the shareholders of GMI, the corporate general partner of Plano AMI. The

letter addressed GMI shareholders investing in similar ventures and gave permission to GMI

shareholders to pursue similar ventures. Cruz testified he never received the letter nor was it

discussed with him. He had, however, discussed with Ghani purchasing an open MRI machine

as an addition to Plano AMI. Cruz learned shortly after the date of the letter that Ghani and Taba

had purchased an open MRI machine and opened two new business ventures: GMI#2 as a

corporation and Plano Open MRI, an open-style MRI center located across the parking lot from

Plano AMI.

                                E. Redemption of Cruz’s Shares in GMI

       In August 2009, Debra Brown, one of NDMI’s limited partners, sued NDMI, Ghani,

Cruz, Taba, and others for breach of contract, breach of fiduciary duty, and other claims. Cruz

filed a cross-claim against Ghani and the other appellants, and appellants then cross-claimed

against Cruz alleging, among other things, that Cruz provided Brown’s lawyer with confidential

                                               –6–
information regarding NDMI’s trial strategy and confidential financial information. Ultimately,

Brown settled her causes of action, and the pending cross-claims were severed into this suit.

       After Cruz filed his cross-claim, Ghani called a special meeting of the GMI shareholders.

Cruz attended the meeting with his attorney. The purpose of the special meeting was to redeem

Cruz’s shares of GMI under the corporate protection or “bad boy” provision of GMI’s bylaws,

similar to the vehicle Ghani and Cruz used to oust Mendez from MCG and NDMI. Cruz’s

signature was not on the version of the GMI bylaws used to redeem his shares, and Cruz testified

he had never seen the GMI bylaws that contained the redemption provisions. Although the

bylaws recite they were adopted at the organizational meeting when GMI was created in March

2004, Taba testified he did not sign the GMI bylaws containing the “expulsion provision” until

October 2008.    The contested GMI bylaws provide that when a shareholder’s shares are

redeemed, the shareholder is to be paid “book value” for the shares. Plano AMI was the sole

asset of GMI. Plano AMI’s accountant provided a financial statement showing the “book value”

of Plano AMI was a negative amount; consequently, GMI advised Cruz he was not entitled to

receive any compensation for his shares in GMI.

                                        F. The Trial and Appeal

       At trial, Cruz alleged four distinct injuries resulting from (1) Ghani’s wrongful

dissolution of NDMI, (2) appellants’ payments to themselves and Ghani’s wife, Rona, (3)

appellants’ usurpation of the Plano Open MRI corporate opportunity, and (4) appellants’ theft of

Cruz’s ownership interests in Plano AMI. After hearing the evidence, the jury made findings in

Cruz’s favor on all of these claims and awarded actual and punitive damages.

       On appeal, appellants bring multiple issues and sub-issues, generally challenging (1) the

partial summary judgment ruling, (2) the damages awarded for conversion, (3) the damages

awarded for breach of fiduciary duty in connection with the dissolution of NDMI, including the

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trial court’s directed verdict on appellant’s affirmative defense of waiver, (4) the damages

awarded for breaches of fiduciary duty in connection with the opening of Plano Open MRI, (5)

the damages for self-dealing payments made to Ghani’s wife and management company and

payments made in connection with the Ault litigation, and (6) the award of punitive damages. In

a cross-appeal, Cruz brings two issues in which he complains the trial court erred by capping the

punitive damage awards and by disregarding the jury’s award of damages related to

compensation paid to Taba.

                                        II. INSTRUCTED VERDICT

       We begin with the trial court’s instructed verdict on appellants’ affirmative defense of

waiver. As the close of the trial neared, Cruz filed a written motion for instructed verdict on

Ghani’s affirmative defense of waiver, arguing there was “no evidence” and/or factually

insufficient evidence to support the issue’s submission to the jury. After testimony ended, the

court granted the motion.

       In Ghani’s third issue, he argues the trial court’s ruling was error as it related to the

dissolution of NDMI. Specifically, he contends, even if he breached his fiduciary duty, the jury

should have been allowed to consider whether Cruz waived the breach because Cruz knowingly

consented to the dissolution. This issue pertains to question 12 of the jury charge, which stated:

       QUESTION NO. 12: With respect to the decision to wind up and dissolve
       NDMI, did Mehrdad Ghani fail to comply with his fiduciary duties to NDMI
       and Erwin Cruz?

       Because Ghani was an NDMI partner and controlled the day-to-day activities of
       NDMI, Ghani owed NDMI and Erwin Cruz a fiduciary duty. To prove Ghani
       failed to comply with this duty, Cruz must show:

       a. the transaction in question was not fair and equitable to NDMI and Erwin
       Cruz;
       b. Ghani did not make reasonable use of the confidence that NDMI and Erwin
       Cruz placed in him;
       c. Ghani did not act in the utmost good faith and exercise the most scrupulous
       honesty toward NDMI and Erwin Cruz;

                                               –8–
       d. Ghani placed his own interests before the interests of NDMI and Erwin Cruz
       [sic] used the advantage of his position to gain a benefit for himself at the expense
       of NDMI or Erwin Cruz, and placed himself in any position where his self-
       interest might conflict with his obligation as a fiduciary to NDMI and Erwin
       Cruz; or
       e. Ghani did not fully and fairly disclose all important information to NDMI and
       Erwin Cruz concerning the transaction.

       The jury answered “yes” to Question 12 and determined $922,265 would reasonably

compensate Cruz for his damages proximately caused by Ghani’s failure to comply with his

fiduciary duty.

       Generally, an instructed verdict is proper when the opponent’s pleadings are defective

and insufficient to support a judgment, when the evidence conclusively proves a fact that

establishes a party’s right to judgment as a matter of law, or when the evidence offered on a

cause of action is insufficient to raise a fact issue. Spangler v. Jones, 797 S.W.2d 125, 129–30

(Tex. App.—Dallas 1990, writ denied). When we review the trial court’s grant of an instructed

verdict on an evidentiary basis, we determine whether there is more than a scintilla of probative

evidence to raise a fact issue on the material questions presented. Coastal Transp. Co. v. Crown

Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). We consider the evidence in the light

most favorable to the party against whom the directed verdict was instructed and give the losing

party the benefit of all reasonable inferences created by the evidence. Id. at 234. If there is any

conflicting evidence of probative value, we must reverse and remand the issue for the jury’s

determination. Id.

       Waiver is “an intentional relinquishment of a known right or intentional conduct

inconsistent with claiming that right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003);

Furmanite Worldwide, Inc. v. NextCorp, Ltd., 339 S.W.3d 326, 333–334 (Tex. App.—Dallas

2011, no pet.). The elements of waiver are: (1) an existing right, benefit, or advantage; (2)

knowledge, actual or constructive, of its existence; and (3) an actual intent to relinquish the right

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(which can be inferred from conduct).       Furmanite, 339 S.W.3d at 334.        Waiver can be

established by a party’s express renunciation of a known right, by its conduct, or by silence or

inaction over a period of time long enough to show an intention to yield the known right.

Comiskey v. FH Partners, LLC, 373 S.W.3d 620, 639 (Tex. App.—Houston [14th Dist.] 2012,

pet. denied).

       Ghani argues Cruz engaged in intentional conduct that relinquished, and was inconsistent

with, any right he might have had to avoid dissolution. He asserts that if the jury had been

allowed to consider his waiver defense in light of the evidence presented, the jury may have

found Cruz waived any breach of fiduciary duty because he knowingly agreed to the dissolution.

       As evidence, he relies on the following: (1) Cruz signed a consent authorizing the

dissolution, (2) Cruz signed the meeting’s minutes where NDMI’s financial status and

dissolution were discussed, (3) Cruz had knowledge of NDMI’s financial demise, and (4)

testimony that Cruz, in his own words, “went along with it.” While we do not attempt to present

all the evidence bearing upon the issue of waiver, we conclude the record presents a fact issue as

to whether Cruz waived his right to complain about the dissolution of NDMI.

       Ghani produced evidence that Cruz issued the notice and call of a special meeting of

MCG Group, NDMI’s corporate general partner, on November 13, 2008. The purpose of the

special meeting was “to determined [sic] whether or not there should be a dissolution winding up

and termination of the limited partnership of which this Corporation is the general partner, and

the manner in which same shall be performed.” Cruz signed the notice as director of MCG

Group. In addition, the evidence included the minutes of a December 5, 2008 special meeting of

MCG Group. The minutes, signed by Cruz, resolved that (1) NDMI should be dissolved, its

business affairs and operations be wound up, and the partnership terminated and (2) election and

recommendation of the general partner to adopt same be presented to the limited partners and

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their decision be recorded. The minutes then provided that a motion was made, seconded, and

“unanimously carried” to authorize the means and manner of such dissolution and then resolved

that Ghani, as president of MCG Group, should “be instructed and authorized to oversee and

effectuate said dissolution, handle the affairs and decision making of winding up the affairs of

the limited partnership’s business, selling its assets, paying its debts, distributing its remaining

assets, if any, to the partners, and terminating the limited partnership.”

       In addition, Ghani also produced evidence suggesting Cruz had knowledge that NDMI

could not survive in the long term. In a September 4, 2008 email to a physician-investor, Cruz

attaches an article concerning “[h]ow outpatient imaging centers are coping” after legislation

reduced reimbursements for Medicare patients. Cruz asked the physician-investor to review the

article, noting that it “definitely creates some challenges for us[.]” Also, Cruz testified Ghani

told him reimbursement rates and referrals were declining and NDMI was losing three of the

physician-investors who had made referrals to the centers. At the same time, Cruz declined

Ghani’s suggestion that he relocate his office to a smaller area in the same building to allow new

physician-referral sources to move in to his space.          Finally, evidence showed Cruz had

possession of the Quickbooks files containing the NDMI financial records.

       We conclude that more than a scintilla of probative evidence shows Cruz actively

participated in the decision to dissolve NDMI, with knowledge of facts concerning the

challenges facing outpatient imaging centers, and this evidence raised material fact issues

regarding whether Cruz intentionally relinquished a known right or acted inconsistent with

claiming that right.

       In reaching this conclusion, we have considered Cruz’s argument on appeal that whether

Cruz’s “consent” constituted a waiver was “not a dispositive inquiry” and did not support

submission of an independent affirmative defense. He argues that “the facts concerning Cruz’s

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consent . . . were properly considered by the Jury in determining whether the transaction was

‘fair.’”

           Cruz did not advocate the granting of the motion on this basis in the trial court; rather, he

argued legal sufficiency. Regardless, we are unpersuaded. To support his argument, Cruz cites

two cases, neither of which involved, analyzed, or discussed the propriety of the affirmative

defense of waiver in the context of a breach of fiduciary duty. See Stephens Cnty. Museum v.

Swenson, 517 S.W.2d 257 (Tex. 1974) and Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502,

507 (Tex. 1980). Whether consent is a separate material issue in a fiduciary duty case is not the

same question as whether waiver may be separately submitted. Because we conclude more than

a scintilla of probative evidence exists on Ghani’s affirmative defense of waiver, the trial court

erred in granting an instructed verdict on this issue.

           Having so concluded, we must determine whether the error probably caused the rendition

of an improper judgment. Here, the trial court’s ruling precluded the jury from considering

whether Cruz’s actions waived any breach of fiduciary duty related to NDMI’s dissolution.

Because there was some evidence presented from which the jury could have determined the

breach was waived and therefore appellants were not liable, we conclude the error was harmful.

We sustain the third issue.

                                            III. SUMMARY JUDGMENT

           In their first issue, appellants contend the trial court erred by granting Cruz’s traditional

motion for partial summary judgment because Cruz did not prove as a matter of law that he was

a limited partner in Plano AMI. We agree.

           To prevail on a traditional summary judgment motion, a party must show that no genuine

issue of material fact exists and that he is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Evidence favorable to

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the nonmovant will be taken as true with every reasonable inference, and any doubts, resolved in

the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). If

the movant meets his burden of proof, then and only then must the nonmovant respond with

reasons to avoid summary judgment and proof sufficient to raise a fact issue. See Rhone-

Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999); see also Gambrinus Co. v.

Galveston Beverage, Ltd., 264 S.W.3d 283, 288 (Tex. App.—San Antonio 2008, pet. denied).

When, as here, the trial court’s order does not specify the grounds for summary judgment, we

must affirm the summary judgment if any of the theories presented to the trial court and

preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 216 (Tex. 2003).

       Cruz moved for summary judgment on the grounds that (1) appellants were barred by

“tax estoppel” or “quasi estoppel” from contending they are not limited partners in Plano AMI

and (2) the plain language of the partnership agreement should be harmonized as a matter of law

to mean they were limited partners. In his motion, Cruz asserted that as a “prerequisite to certain

claims,” he needed to establish he is a limited partner of Plano AMI. He then asserted that

although he, Ghani, and Taba had signed the partnership agreement as “limited partners,” Ghani

and Taba had taken the position in depositions that they never intended to be partners. Relying

on Plano AMI’s original tax return, Cruz asserted they each owned 24% as limited partners and

GMI owned 1%.

       In response, appellants argued they never intended to be and never were limited partners

in Plano AMI. Rather, they asserted they were one-third shareholders in Plano AMI’s general

partner, GMI. Further, they argued, the partnership agreement expressly granted to GMI a 60%

ownership interest, and they mistakenly signed the agreement as limited partners. Finally, they




                                              –13–
argued they asserted the tax returns upon which Cruz relies for his estoppel argument have been

amended to reflect their status as GMI shareholders.

       We begin with Cruz’s second ground for summary judgment in which he contends the

agreement itself establishes that he is a limited partner. We construe a written agreement to

ascertain and give effect to the true intentions of the parties as expressed in the writing itself. El

Paso Field Servs., LP v. MasTec N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012); Innovate v.

Tech. Solutions, L.P. v. Youngsoft, Inc., 418 S.W.3d 148, 151 (Tex. App.—Dallas 2013, no pet.).

We attempt to harmonize and give effect to all provisions of the writing by analyzing the

provisions with reference to the whole agreement. Frost Nat. Bank v. L & F Distribs., Ltd., 165

S.W.3d 310, 312 (Tex. 2005); Hackberry Creek Country Club, Inc. v. Hackberry Creek Home

Owners Assn., 205 S.W.3d 46, 55 (Tex. App.—Dallas 2006, pet. denied).

       Whether a contract is ambiguous is a question of law. Innovate, 418 S.W.3d at 151. We

begin our analysis with the agreement’s express language. El Paso Field Servs., 389 S.W.3d at

805–06. If we are unable to harmonize the provisions and give effect to all the contract’s

clauses, the contract is susceptible to more than one reasonable interpretation and is ambiguous.

Innovate, 418 S.W.3d at 151. If a contract contains an ambiguity, the granting of a motion for

summary judgment is improper because the intent of the contracting parties is an issue of fact.

Id.

       Cruz attached a copy of the partnership agreement to his motion for partial summary

judgment. He relies on the signature page of the agreement, where Ghani signed as president of

GMI under the heading “GENERAL PARTNER” and Cruz, Ghani, and Taba each individually

signed under the heading “LIMITED PARTNERS.” He argues his signature established as a

matter of law his status as a limited partner.




                                                 –14–
       Appellants, however, argue other portions of the agreement create an ambiguity as to

Cruz’s status. Specifically, page one of the agreement provides as follows:

       THIS AMENDED AND RESTATED AGREEMENT OF LIMITED
       PARTNERSHIP is made and entered into and shall be effective as of the 1 day of
       April, 2004, by and among GHANI MEDICAL INVESTMENTS, INC., a Texas
       corporation (the “General Partner”), and each other Person whose name is set
       forth on Exhibit A attached to this Agreement, as the Limited Partners.

                                       WITNESSETH:

       WHEREAS, GHANI MEDICAL INVESTMENTS, INC., as the General Partner
       and Mehrdad Ghani as the original limited partner (the “Original Limited
       Partner”) formed Plano AMI, L.P., a Texas limited partnership (the
       “Partnership”), and are parties to that certain Agreement of Limited Partnership of
       Plano AMI, L.P., dated as of March 18, 2004 (the “Original Partnership
       Agreement”);

       WHEREAS, the General Partner and the Original Limited Partner have decided to
       admit those Persons names [sic] on Exhibit A to the Partnership as additional
       Limited Partners; and

       WHEREAS, in connection with amending the Original Partnership Agreement to
       reflect the admission to the Partnership of the Persons named on Exhibit A as
       additional Limited Partners, the General Partner and the Persons admitted as
       Limited Partners have decided that it would be appropriate to amend and restate
       the Original Partnership Agreement, in its entirety.

       The referenced Exhibit A lists GMI as “General Partner” with 60% interest, followed by

Ghani’s name as “Limited Partner” with a blank line beside his interest. No other limited

partners are named. Considering the first-page provisions in conjunction with each other and

with Exhibit A, we conclude the signature page of the agreement does not conclusively establish

that Cruz is a limited partner. To the contrary, Cruz’s name is not on Exhibit A, which was

intended to show the names of the limited partners.

       Cruz nevertheless argues we can harmonize the agreement in spite of Exhibit A. First, he

contends the exhibit is incomplete and leaves room for additional unnamed partners and we

should use his and Taba’s signatures to “fill out the incomplete roster.” But, “[a] court may not



                                              –15–
add to a contract under the guise of interpretation.” Gamma Group, Inc. v. Transatlantic

Reinsurance Co., 242 S.W.3d 203, 212 (Tex. App.—Dallas 2007, pet. denied).

       Cruz next argues we can harmonize the agreement by recognizing “the general partner is

given broad discretion to forego the use of the Exhibits altogether.” For this, he relies on sections

12.6(b) and (d) of the agreement, which authorize the general partner to amend any provision of

the agreement without the consent of, or notice to, any limited partner. This argument, however,

depends on Cruz’s position that the written agreement itself unambiguously named him a limited

partner. Having reviewed the summary judgment evidence, we conclude the agreement is

ambiguous and its meaning a determination for the fact finder.

       In the first summary judgment ground, Cruz asserted appellants were barred from

denying he is a limited partner by the doctrine of tax estoppel or quasi-estoppel. Quasi-estoppel

precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position

previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000).

The doctrine applies when it would be unconscionable to allow a person to maintain a position

inconsistent with one to which he acquiesced, or from which he accepted a benefit. Id.

       In his motion, Cruz asserted appellants are barred from taking a position inconsistent with

tax returns, filed from 2004 to 2009, showing that Cruz, Ghani, and Taba were limited partners

in Plano AMI and GMI owned only a 1% general partner interest. Relying on Davidson v.

Davidson, 947 F.2d 1294, 1297 (5th Cir. 1991), Cruz asserted that “tax estoppel” is a species of

quasi-estoppel and applies when a party makes sworn factual representations to the Internal

Revenue Service.

       In Davidson, the bankruptcy court determined that the husband and wife had intended

periodic payments to be a property settlement, rather than alimony, and therefore determined the

periodic payment debt was dischargeable in bankruptcy. Id. at 1296. The bankruptcy court also

                                               –16–
determined the husband was not barred by the doctrine of equitable estoppel from asserting the

payments were not alimony. Id. On appeal, the Fifth Circuit reversed, explaining that the debtor

had declared the debt as alimony in his tax returns and could not take a different position in

bankruptcy. Id. at 1296–97. Nothing in the opinion suggests the debtor had amended his returns

to reclassify the debt payments as property settlement payments.

       Here, appellants presented evidence that the tax returns for Plano AMI and GMI had been

amended to reflect that Ghani, Taba, and Cruz are shareholders of GMI, the general partner of

Plano AMI, and have 0% interest as limited partners. The acceptance of an amended return is a

matter of IRS discretion. See Dover Corp. & Subsidiaries v. C.I.R., 148 F.3d 70, 72 (2d Cir.

1998). There is nothing in the record to indicate the IRS rejected the amended returns. In

addition, Hossein Zamanian, the accountant who filed both the original and amended returns for

Plano AMI and GMI, testified that before filing the amended returns, he called the IRS and was

told that if anything was “wrong on the tax return for any reason, [it] need[s] to be corrected.”

Finally, Cruz did not present evidence to establish that appellants benefitted in any way from

being characterized as “limited partners” for tax purposes.

       For purposes of this appeal, we need not decide the ownership structure of Plano AMI,

who the limited partners are, or the percentages assigned to their interest. We need only decide

whether Cruz established as a matter of law that he is one of the limited partners. Having

reviewed the summary judgment evidence, we conclude he has not. Accordingly, the trial court

erred in determining otherwise.

       Having concluded the partial summary judgment was error, we now consider its impact

on the trial and the jury and the appropriate disposition of this case.

       “Appellate courts have broad discretion to remand a case for a new trial in the interest of

justice.” Innovate, 418 S.W.3d at 153 (citing Knapp v. Wilson N. Jones Mem’l Hosp., 281

                                                –17–
S.W.3d 163, 176 (Tex. App.—Dallas 2009, no pet.) (citing TEX. R. APP. P. 43.3(b)); Scott Bader,

Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex. App.—Houston [1st Dist.] 2008, no

pet.); Ahmed v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

Remand is appropriate when, for any reason, a case has not been fully developed, including

where the trial court’s action prevented the case from being properly developed and presented at

trial. Innovate, 418 S.W.3d at 153; Ahmed, 261 S.W.3d at 196 (“As long as there is a probability

that a case has, for any reason, not been fully developed, an appellate court has discretion to

remand for a new trial rather than render a decision.”).

       Almost from the outset of the trial, the jury was told that Cruz was a limited partner in

Plano AMI. Specifically, on the second day of testimony, during appellants’ cross-examination

of Cruz, the trial court instructed the jury as follows:

       Ladies and gentlemen, I think it’s time for me to explain something to you.

       As [Cruz’s attorney] stated to you in his opening statement yesterday, at some
       point in time in 2009 or 2010 Mr. Hossein Zamanian prepared amended tax
       returns for the Plano AMI limited partnership which purported to reflect that Dr.
       Cruz had never been a limited partner of that entity.

       The Court, in a pretrial ruling, held that it is not legally permissible to try to
       change reality by amending tax returns in that fashion long after the fact and when
       litigation is already pending.

       And so the Court rendered what is called a summary judgment stating Dr. Cruz
       had been and still is a limited partner in Plano AMI.

       That was done over the vigorous resistance of the defendants, and it is
       inappropriate for [appellants’ counsel] to seek to confuse or mislead you by
       suggesting that the defendants had not tried to eliminate Dr. Cruz’s limited
       partnership interest. You are so instructed.

       And, [appellants’ counsel], you will move on.

        The charge contained twenty-two questions that can be grouped as follows: (1) the

conversion of Cruz’s partnership interest in Plano AMI; (2) the dissolution of NDMI; (3)

usurpation of the Plano AMI corporate opportunity by opening Plano Open MRI, LP; (4) self-

                                                 –18–
dealing by Ghani by making payments to his wife and the Ault litigation from either NDMI or

Plano AMI funds. We have resolved the issues related to the dissolution of NDMI. In the

remaining issues, however, most of questions either instructed the jury Cruz was a limited

partner in Plano AMI or relied on a question that so instructed. Further, the additional charge of

the court, given to the jury to determine punitive damages, was predicated on these answers.

Considering the judge’s oral instruction and the jury charge, we are convinced the pretrial ruling

infected the entire trial.                It impacted the appellants’ cross-examination of witnesses, the

presentation of their case, and, most importantly, what evidence they could present. In the

absence of the pretrial ruling, the jury would have been asked to decide additional issues that

were material to the claims brought by Cruz.

           For the above reasons, we conclude the appropriate disposition in this case is to remand

the entire cause for further proceedings consistent with this opinion; therefore, we do not address

appellants’ remaining issues.2 Likewise, our disposition makes it unnecessary to address the

issues raised by Cruz in his cross-appeal.

           We reverse the trial court’s judgment and remand for further proceedings consistent with

the opinion.



121480F.P05

                                                                           /Molly Francis/
                                                                           MOLLY FRANCIS
                                                                           JUSTICE



     2
        We note that appellants brought legal sufficiency challenges to the damages awarded for conversion and the NDMI dissolution, arguing
there is no evidence because the trial court submitted the wrong measure of damages. They seek rendition of a take-nothing judgment on these
claims. We do not reach these issues because they would not require rendition of the judgment in appellants’ favor; rather, when the charge fails
to instruct the jury on the proper measure of damages but there is some evidence of damages, remand is the appropriate disposition. See Formosa
Plastics Corp. v. Presidio Eng’rs & Contractor’s, Inc., 960 S.W.2d 41, 51 (Tex. 1998); JAAV Investments, LLC v. Amcap Mortgage, Ltd., No.
14-12-00839-CV, 2014 WL 708492, at *7 (Tex. App.—Houston [14th Dist.] Feb. 20, 2014, no pet.) (substitute mem. op.). Here, our review of
the record reveals some evidence of damages.



                                                                    –19–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

PLANO AMI, L.P., GHANI MEDICAL                      On Appeal from the 101st Judicial District
INVESTMENTS, INC., MCG GROUP,                       Court, Dallas County, Texas
INC., MEHRDAD GHANI, NORTH                          Trial Court Cause No. 10-16274-E.
DALLAS MEDICAL IMAGING, L.P.,                       Opinion delivered by Justice Francis with
AND MICHAEL TABA, M.D.,                             Justice Lang-Miers participating.
Appellants/Cross-Appellees

No. 05-12-01480-CV         V.

ERWIN CRUZ, M.D., Appellee/Cross-
Appellant

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

       It is ORDERED that appellants Plano AMI, L.P., Ghani Medical Investments, Inc.,
MCG Group, Inc., Mehrdad Ghani, North Dallas Medical Imaging, L.P., and Michael Taba,
M.D., recover their costs of this appeal from appellee Erwin Cruz, M.D. The obligations of
Liberty Mutual Insurance Company as surety on appellant Michael Taba’s supersedeas bond are
DISCHARGED.


Judgment entered January 9, 2015.




                                             –20–
