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Click here for the full text of this decision FACTS:Randall Flanary and his nephew Roy Mills, who was only a few years younger than he, worked together for years. In 1995 Mills formed a roofing company with Flanary’s financial support, though Mills paid him back. Flanary and his wife maintained the checkbook for the roofing company. In 1996, Flanary gave his share of the roofing company to his son, Steve. He also started Easyliving Homes with Mills in that year. Mills contributed $15,000 to the business’ start-up, and Flanary contributed $62,000. Despite their uneven contribution, the pair was to evenly split the profits, in part because of Mills’ extensive homebuilding experience. Mills did not see the incorporation papers for the venture, but, as with the roofing company, he trusted Flanary to handle the company checkbook. Over four years, Easyliving built several houses. Mills alleged that Flanary always told Mills that business was fine, but when Mills asked about withdrawing business profits, Flanary said that the company wasn’t doing well. Mills alleged that he gave Mills a check for just over $7,200 for four years’ profit. Mills balked at the payment until he saw the company books, but Flanary refused to show the books to him. Mills said that, though he did not use money from the company to pay personal expenses, he knew that Flanary had. He said he expected the profit to be more roughly $20,000 per house because the price of building the home was similar to ones he had built before, and those were built with more subcontractors. Mills eventually brought suit against Flanary, doing business as Easyliving Homes. At trial, Mills testified to the above facts. Two men who also built spec houses in the area testified that they aimed to make between 10 percent and 15 percent profit on each house they built. Flanary’s wife testified that when Flanary and Mills began arguing over the profits from Easyliving, she told Flanary she didn’t want him to be partners with Mills anymore. She believed that the pair terminated the relationship and that she and her husband did not believe Mills had an ownership interest in the company any longer. She added that no stock certificates were issued and no minutes kept of any resolutions. She also said that she had written checks on the company’s account for personal expenses, from credit card debts to income tax. A CPA and business appraiser testified as to what she thought Mills’ rightful share of the business proceeds should be. She estimated that between 1996 and 2000, Easyliving realized net cash proceeds of $1.8 million from the sale of homes. She noted that the company’s tax returns were wrong for 2000 because they failed to credit Mills with his $15,000 capital contributions and instead credited it to Flanary. Based on several calculations, she recommended a damage award for Mills for $168,437. Flanary testified that he and Mills agreed that he would control 51 percent of the company. He admitted that he drew funds from the business account for personal expenses. He said Mills’ deposits to the business were not all capital contributions and that Mills’ withdrawals were not all for company purposes. Flanary also confirmed that both he and Mills knew that his wife was so angry over his relationship with Mills that she threatened to divorce him if he remained in partnership with Mills. Easyliving’s accountant calculated Mills’ share of the business’ undistributed profits to be $22,204. A trial court awarded Mills over $207,000 in damages and attorneys’ fees. The court went with the CPA/business appraiser’s calculations, though with some adjustments. The trial court stated on the record that the amount included Mills’ $15,000 capital contribution. Flanary asked for findings of fact and conclusions of law. The court filed some, though without separating them out. On appeal, Flanary says the findings and conclusions are deficient. He also challenges the sufficiency of the evidence related to his duty to show the books to Mills and also that he did not show those books to Mills. HOLDING:Affirmed. Flanary asserts that the trial court’s findings do not identify against whom the fraud was committed, nor do they contain the facts by which the trial court arrived at the damages. The court finds, that although the trial court did not differentiate between findings of fact and conclusions of law, some of its statements are by their nature findings on ultimate facts. The court stated in its judgment that Flanary breached a fiduciary duty and committed fraud, and stated in its findings of fact and conclusions of law that he committed fraud. The court found an amount of damages. As to the question of whether fraud occurred, the existence of a confidential relationship and the amount of damages are all issues of fact, the court made findings of fact upon which it based its judgment. The court also notes that there is no evidence of harm from the trial court’s failure to make additional findings regarding the elements of damages. The trial court’s reference to exhibits offered at trial, plus record evidence, provide sufficient detail regarding the underlying facts to allow Flanary to appeal the damages award. The court finds sufficient evidence to support the findings of fraud and breach of fiduciary duty. The evidence shows the requisite personal and professional relationships. Flanary told Mills not to worry about the profitability of the business. This evidence provides factually and legally sufficient evidence to show a confidential relationship. The record also contains sufficient evidence that Flanary breached that fiduciary relationship. For instance, although evidence showed that the company had an after-tax profit of more than $300,000, Flanary told Mills that the business was not profitable and wrote him a check for just over $7,254, alleging that the amount was Mills’ $15,000 investment, less expenses Mills owed. As for fraud, the court finds that there is evidence of constructive and actual fraud: constructive fraud because Flanary concealed important business information from Mills, and actual fraud because Flanary told Mills the company was not profitable. Finally, the court finds that, faced with a choice between two versions of the permissible uses of company funds and two experts’ opinions based on those versions, the trial court had legally sufficient evidence to support its damage award. OPINION:Kidd, J.; Law, Kidd and Puryear, JJ.

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