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Click here for the full text of this decision FACTS:Steven F. Bright, Steven F. Bright PC, Crysta Entertainment NV, and Graham, Bright & Smith PC appeal the trial court’s judgment awarding Howard Addison, Charles B. Lowe and Questcom Inc. f/k/a Quest Wireless Communications Inc. damages for alleged breach of fiduciary duty, alleged interference with prospective business relations, alleged usurpation of business opportunity and alleged fraud. Bright, Steven F. Bright PC, and Crysta, in 44 issues, urge reversal of the trial court’s judgment. In nine issues, Graham, Bright & Smith PC also urges reversal of the trial court’s judgment. The appellees Addison, Lowe, and QuestCom sued appellants for allegedly usurping a business opportunity to manage a casino in Aruba. Appellant Bright is an attorney who practiced law as a member or shareholder of appellant professional corporations Steven F. Bright PC and Graham, Bright & Smith PC. Appellant Crysta Entertainment NV is an Aruban corporation set up by Bright through which to manage the casino. Bright, Steven F. Bright PC, and Crysta Entertainment NV filed a joint brief on appeal and are referred to as the Bright appellants. Graham, Bright & Smith PC filed a separate brief on appeal and are referred to as GB&S. The parties dispute most of the facts material to their claims. HOLDING:Affirmed. The Bright appellants challenge the legal and factual sufficiency of the evidence supporting the trial judge’s findings that they owed fiduciary duties to the appellees, breached those duties, or failed to act in good faith in acquiring rights in the Aruba casino. The appellees urge that Bright was their lawyer, and as their lawyer, owed them fiduciary duties. Bright contends he was their business associate but never their attorney. The court holds there was legally and factually sufficient evidence to support the trial judge’s finding of an attorney-client relationship between Bright and the appellees. The relationship existing between attorney and client is characterized as “highly fiduciary,” and requires proof of “perfect fairness” on the part of the attorney. Jackson Law Office PC v. Chappell, 37 S.W.3d 15 (Tex. App. � Tyler 2000, pet. denied) (citing Archer v. Griffith, 390 S.W.2d 735 (Tex.1964)). The court holds there was legally and factually sufficient evidence to support the trial judge’s finding Bright breached fiduciary duties to the appellees. In a negligence action, an attorney is held to the standard of care that would be exercised by a reasonably prudent attorney in the same or similar circumstances. There was legally and factually sufficient evidence to support the trial judge’s findings Bright, as an attorney, owed a fiduciary duty to appellants, and breached that duty, the court holds. The Bright appellants challenge the legal and factual sufficiency of the evidence to support the trial judge’s findings regarding Bright’s intentional interference with the appellees’ prospective business relationship. The appellees contend the Aruba opportunity was part of a three-casino “package deal” with the Allegro Corp. Bright contends the Aruba opportunity was presented separately from the deals for the other two casinos. After Wal-Mart Stores Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001), courts have adopted the following elements to determine whether interference with contractual relations has occurred: 1. a reasonable probability that the parties would have entered into a contractual relationship; 2. an independently tortious or unlawful act by the defendant that prevented the relationship from occurring; 3. the defendant acted with a conscious desire to prevent the relationship from occurring or knew that the interference was certain or substantially certain to occur as a result of his conduct; and 4. the plaintiff suffered actual harm or damage as a result of the defendant’s interference. COC Services Ltd. v. CompUSA Inc., 150 S.W.3d 654 (Tex. App. Dallas 2004, pet. filed). The court holds there was legally and factually sufficient evidence to support the trial judge’s findings of Bright’s intentional interference with appellees’ prospective business relationship with Allegro with respect to the Aruba casino. The Bright appellants next challenge the legal and factual sufficiency of the trial judge’s findings relating to the appellees’ claims of fraud. Bright concealed from appellees the availability of the opportunity to invest in and manage the Aruba casino, and owed a fiduciary duty to Addison and Lowe to disclose this information, the court finds. This failure to disclose constitutes fraud, the court holds. Bright argues there is insufficient evidence of appellees’ reliance or that his alleged fraud was the proximate cause of damage to the appellees. The appellees presented evidence regarding the damage suffered from the loss of the opportunity to invest in and manage the Aruba casino. The court holds there was legally and factually sufficient evidence to support the trial judge’s findings and conclusions that Bright’s conduct was the proximate cause of damage to the appellees. The Bright appellants challenge the constructive trust imposed by the trial court. The judgment imposes a constructive trust in favor of Addison and Lowe on Crysta and all its assets. The Bright appellants contend there is no dispute the money used to incorporate Crysta, to purchase the management contract for the Aruba casino, and to open and operate the Aruba casino did not come from appellees. A constructive trust, appellants argue, can only be imposed on wrongfully acquired property. The trial judge did not abuse his discretion in imposing the constructive trust, the court holds. The Bright appellants also contend the constructive trust acts as a double recovery. The trial judge, however, entered an amended judgment providing any value recovered by the appellees through the constructive trust shall be credited to the amounts owed on the judgment for past and future lost profits. The Bright appellants challenge the appellees’ expert testimony on lost profits. There were at least two pretrial hearings on the lost profits evidence proffered by the appellees. The trial judge and an associate judge both considered the Bright appellants’ objections to appellees’ expert, Rodney Sowards, and other experts designated by appellees to testify as to lost profits. The court concludes the trial judge did not abuse his discretion in finding Sowards qualified to give his opinion regarding lost profits from the Aruban casino. The trial judge did not abuse his discretion in finding the appellees had established lost profits by competent evidence with reasonable certainty. Sowards’ analysis of lost profits damages in the range of $3.7 million to $4.2 million was admissible, and there was legally and factually sufficient evidence to support the trial judge’s finding that the appellees suffered actual damages in the amount of $3,656,395, the court concludes. The Bright appellants challenge the trial judge’s award of exemplary damages. BMW of North America Inc. v. Gore, 517 U.S. 559 (1996) establishes three guideposts for determining whether a punitive damages award is unconstitutionally excessive: 1. the degree of reprehensibility of the defendant’s misconduct; 2. the disparity between actual and punitive damages; and 3. a comparison of the punitive damages awarded and other civil or criminal penalties that could be imposed for similar misconduct. “The evidence showed Bright acted with intentional malice, trickery, and deceit rather than mere accident,” the court finds. The ratio of actual to punitive damages does not indicate the punitive damages awards were excessive, the court finds. Texas Civil Practice & Remedies Code 41.008(b)(1)(A) allows exemplary damages in the amount of two times the amount of economic damages. The trial judge’s award was within this limit. The trial judge’s award of punitive damages meets the criteria set forth in National Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981), the court concludes. The Bright appellants next challenge the award of declaratory relief in the trial court’s judgment, and further challenge the award of attorneys’ fees based upon the declaratory relief. In the final judgment, the trial judge entered a declaratory judgment regarding the parties’ rights in certain corporate entities formed by Bright to operate the casinos in which the appellees had an interest. The court broadly construes the trial court’s discretion to award attorneys’ fees and costs in a declaratory judgment action. The court holds the trial judge did not abuse his discretion in entering the declaratory judgments. The court holds the trial judge did not abuse his discretion in awarding attorneys’ fees. GB&S raises nine issues in its separate appeal. Eight of the issues challenge the legal and factual sufficiency of the evidence to support the trial judge’s findings and conclusions as to GB&S on issues of proximate cause, vicarious liability, negligence, fiduciary relationship, malice and fraud, exemplary damages and attorney’s fees. The ninth issue complains of a potential “double recovery.” There is evidence to support the trial judge’s findings regarding GB&S’s liability to appellees, the court finds. Because the trial court’s judgment may be upheld on theories of vicarious liability, the court does not consider GB&S’s arguments regarding its direct liability for negligence and the necessity of expert testimony on that issue. The court references its discussion of the propriety of the attorneys’ fees award and the issue of double recovery in Bright’s appeal and overrules those issues. OPINION:Whittington, J.; Morris, Whittington and O’Neill, JJ.

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