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Click here for the full text of this decision FACTS:Appellant James M. Cotten filed this declaratory judgment suit against 1. Appellee Weatherford Bancshares Inc. (WBI), a bank holding company, to enforce statutory inspection rights and for wrongful redemption of Cotten’s preferred stock and 2. Joe E. Sharp and Zan Sharp Statham individually for fraud, breach of fiduciary duty, oppression and civil conspiracy regarding the wrongful redemption. After the trial court granted Sharp and Statham’s no evidence motion for partial summary judgment and Sharp, Statham and WBI’s motions for directed verdict, the jury found WBI liable on the only remaining claim for rigging the redemption drawing. The trial court entered a final judgment reflecting the jury verdict. Both Cotten and WBI appeal. HOLDING:The court affirms in part, modifies in part, and reverses and remands in part the trial court’s judgment as to WBI. The court affirms in part and reverses and remands in part the trial court’s judgment as to Sharp and Statham. Cotten argues that the trial court erred by granting WBI’s motion for directed verdict, holding that he was provided access to the corporate records he had requested and that he was not entitled to copies of them. Cotten, a preferred shareholder in WBI, is an equitable owner of First Weatherford Bancshares because WBI is the owner of all the stock in First Weatherford Bancshares. Cotten, therefore, is also an equitable owner of the bank because First Weatherford Bancshares is the owner of 99.3 percent of the bank. Thus, Cotten has a statutory right under Texas Business Corporation Act Article 2.44C to inspect documents of WBI, First Weatherford Bancshares and the Bank. The record reflects that there are fact issues regarding whether WBI provided Cotten with the requested documents. The plain meaning of extract in article 2.44C of the Texas Business Corporation Act includes copies of records. Thus, the trial court erred by finding that as a matter of law, Cotten was not entitled to copies of the corporate records under the statute. The trial court found that the articles of incorporation did not constitute a contract between Sharp, Statham and Cotten because there was no privity. Because Cotten does not challenge the trial court’s finding that there was no contract, the finding is binding. Thus, because the trial court found that the articles did not constitute a contract, and the record does not reflect that there was any other contract between Sharp, Statham and Cotten, there is no evidence that Sharp and Statham owed Cotten any contractual fiduciary duties. The court holds that the trial court did not err by granting Sharp and Statham’s motion for directed verdict on the breach of fiduciary duty claim. Cotten argues that the trial court erred by granting Sharp and Statham’s motion for directed verdict on his oppression claim. Because the potential exists for oppressive conduct between directors and preferred shareholders, the court holds that Cotten has a cause of action as a preferred shareholder against Sharp and Statham as directors of WBI. In addition, the court finds, there is some evidence to support Cotten’s oppression cause of action. Cotten argues that the trial court erred by granting Sharp and Statham a directed verdict on his conspiracy claim based on its holding as a matter of law that there could be no civil conspiracy because there could be no oppression. Although the trial court properly held that there was no evidence that Sharp and Statham committed fraud, there is evidence that they participated in WBI’s fraud against Cotten. Thus, oppression was not the only underlying tort for which Sharp and Statham could be liable for civil conspiracy. Cotten presented no evidence to raise an issue of fact that he was injured because he actually relied on the misrepresentation of Sharp and Statham. the trial court did not err to the extent that it held that there was no evidence of actual fraud. Constructive fraud is the breach of a legal or equitable duty that the law declares fraudulent because it violates a fiduciary relationship. Because the court holds that Cotten presented no evidence at trial of a fiduciary relationship between Sharp, Statham and himself, he necessarily presented no evidence of constructive fraud. Because at trial the May 1997 redemption was found to be void, Cotten remained a preferred shareholder. Cotten was therefore a shareholder at the time of the January 2002 redemption. Because of WBI’s reliance on its improper May 1997 redemption, however, it was undisputed at trial that Cotten was not sent and he did not receive the proper redemption notice for the January 2002 redemption. Consequently, the January 2002 redemption, as it would apply to Cotten, did not comply with the articles. As a result, the January 2002 redemption as applied to Cotten is also void. Cotten therefore remains a preferred shareholder, and he is entitled to receive dividends until his shares are properly redeemed. Because Cotten remains a preferred shareholder, the trial court erred by finding that his shares were effectively redeemed in January 2002 and limiting Cotten’s damages to dividends accrued from May 1997 to January 2002. WBI argues that the trial court erred by admitting the testimony of Rolanna Fitzgerald, an undisclosed witness. Because the record does not reflect an objection or evidence of a failure to disclose the witness and the record does reflect that the trial court granted WBI’s only request regarding the witness’s testimony, WBI’s motion in limine, the court holds that the trial court did not abuse its discretion by admitting Fitzgerald’s testimony. WBI argues that there is no evidence to support the jury’s finding that the May 1997 drawing was rigged. The court disagrees. WBI argues that the trial court erred by finding that Cotten did not fail to mitigate his damages and by not reducing the damage award by the amount that Cotten failed to mitigate his damages. Cotten argues that these issues have been waived. The court agrees. A party asserting an affirmative defense, such as mitigation, in a trial before the court must request findings in support thereof to avoid waiver. If the findings filed by the trial court do not include any element of the defense asserted, then the party’s failure to make a timely request for additional findings relevant thereto is a waiver of the right to complain on appeal of the court’s lack of such findings. Finally, the court finds no evidence in the record to indicate that the trial court’s attorney’s fees award was inequitable or unjust, and there is some evidence to support it. OPINION:Lee Ann Dauphinot, J.; Cayce, CJ, Dauphinot, J., and John T. Boyd, J. (Retired, Sitting by Assignment). Cayce, CJ concurs in part and dissents in part without opinion. He would affirm the trial court’s judgment in its entirety.

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