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Appellants do not challenge that there was a fiduciary relationship between Mary Sesso and Toni Compton

Appellants do not challenge that there was a fiduciary relationship between Mary Sesso and Toni Compton

The Comptons contest the factual sufficiency of the evidence that Toni Compton committed a breach of fiduciary duty or fraud against Mary Sesso. They also challenge the sufficiency of the evidence to support the damage amount. They cite gaps in evidence about the amount of money placed in the box and times during which other people had access to the money. They point to evidence that the Sessos kept the money overnight before renting the box and that Lynn Compton was at his grandparents’ apartment that night.

Plas-Tex, Inc

We review findings of fact by the court in the same manner as we view jury findings. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Ludwig v. Encore Med., L.P., 191 S.W.3d 296, 300 (Tex.App.-Austin 2006, no pet.). When reviewing a challenge to the factual sufficiency of the evidence, we must consider, weigh, and examine all of the evidence in the record. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We will set aside the verdict only if the evidence that supports the finding is so weak as to render the judgment clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We may not reverse even if we would find that the evidence preponderates toward a different answer. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). In a bench trial, the trial court, as fact-finder, is the sole judge of the credibility of the witnesses. Buffington v. DeLeon, 177 S.W.3d 205, 209 (Tex.App.-Houston [1st Dist.] 2005, no pet.). We may not pass upon the witnesses’ credibility or substitute our judgment for that of the fact-finder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). But see City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (jurors cannot substitute their opinions for undisputed truth).

See Herbert v

Breach of a fiduciary relationship can constitute fraud because the fiduciary relationship imposes higher duties, such as duties of good faith, candor, and «full disclosure respecting matters affecting the principal’s interests and a general prohibition against the fiduciary’s using the relationship to benefit his personal interest, except with the full knowledge and consent of the principal.» Flanary v. Mills, 150 S.W.3d 785, 795 (Tex.App.-Austin 2004, pet. denied) (quoting Chien v. Chen, 759 S.W.2d 484, 495 (Tex.App.-Austin 1988, no pet.)). At common law, the term «fraud» means an act, omission, or concealment in breach of a legal duty, trust, or confidence justly imposed, when the breach causes injury to another or the taking of an undue and unconscientious advantage. Chien, 759 S.W.2d at 495mon-law fraud includes both actual and constructive fraud. Actual fraud usually involves dishonesty of purpose or intent to deceive. Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964). Constructive fraud encompasses those breaches that the law condemns as fraudulent because they tend to deceive others, violate confidences, or cause injury to public interests, regardless of the actor’s mental state. Id. When one has a duty to speak the truth, a false representation of a past or present material fact is fraudulent when another relies thereon to his detriment. See Chien, 759 S.W.2d at 495.

They argue that gaps exist in the evidence regarding how much money was placed in the safe deposit box and who might have taken the money. We conclude, however, that sufficient evidence supports the court’s findings that Toni Compton breached her fiduciary obligations to Mary Sesso by taking more than $70,000 in cash without permission. The undisputed evidence is that the Sessos received $73, in cash from the Del Rio bank, and that ount in the box. The evidence reflects that Toni Compton was the only person who accessed the box before . She admitted taking $30,000 in cash during the visit, and there is evidence indicating that the cash remaining in the box was rebound at that time with $1 bills used to fill out the bundles. In addition to the evidence that Toni Compton tried to conceal her removal of funds, when her son called to confront her about the missing funds, there is evidence that Toni Compton shouted to her husband that her son was lying. Toni Compton claimed to have her father’s permission to take the $30,000, and denied knowledge of what happened to the remaining $40,000. There was disputed evidence regarding whether the Comptons made several large purchases between that were inconsistent with their resources. The Comptons speculated that ount in the box and that someone else – perhaps Mary Sesso or Lynn Compton – removed the money. The trial court made a credibility decision and chose to credit Mary Sesso’s and Lynn Compton’s version of events. The record does not support overturning that decision. We conclude that sufficient evidence supports the findings that Toni Compton committed fraud through breach of fiduciary duty.

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