HENRY I. SIEGEL COMPANY, INC., Petitioner, v. Edna HOLLIDAY, Respondent.
No. C-1891.
Supreme Court of Texas.
Jan. 11, 1984.
Rehearing Denied Feb. 22, 1984.
A person, who in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct.
Restatement of Restitution § 76 and § 86, comment (a) (1936). Should Beech bе adjudged a tortfeasor in this suit, it would be bound to discharge its liability to the Bonniwells. As between Beech and Metro, however, this liability should be discharged by Metro because of the prior jury findings in Wilcox that Beech was without fault and Metro was liable.
CONCLUSION
I am not unmindful of the effect an affirmance of the judgment of the court of appeals would have upon the Bonniwells’ cause of action against Beech. Nonetheless, I am not persuaded there is a clear and convincing need for a new determination of the Wilcox defendants’ mutual liabilities. Any adverse impact upon the Bonniwells ultimately stems from their settlement agreement with Metro, the terms of which were voluntarily negotiated between the parties for valuable consideration. A settlement agreement is but one aspect of trial strategy, and does not constitute special circumstances which would justify relitigation оf defendants’ relative liabilities. Nor can it be said future lawsuits involving these issues were not foreseeable, or that Metro did not have adequate opportunity or incentive to litigate these issues. The majority‘s holding that these same issues may again be litigated between these defendants to establish relative liabilities in a subsequent controversy would invite inconsistent adjudication contrary to the spirit and purpose of the doctrine of сollateral estoppel. Defendants should not be twice vexed by having to relitigate among themselves claims for contribution and indemnity based upon the identical fact issues determined in the prior suit.
I would affirm the judgment of the court of appeals.
KILGARLIN and BARROW, JJ., join in this dissent.
Hinds & Meyer, Mona Lyman, Houston, Hilgers, Watkins & Kazen, Thomas H. Watkins, Austin, for respondent.
BARROW, Justice.
Petitioner, Henry I. Siegel Co., Inc. (Siegel), sued respondent, Edna Holliday, along with Alfred and Barbara Graham to collect on a sworn account. Siegel is a creditor of now-dissolved Holly Gram, Inc. (Holly Gram). Mrs. Holliday and the Grahams were officеrs and directors of Holly Gram. Siegel sought to hold the directors personally liable for Siegel‘s claim against Holly Gram on the basis of the “trust fund doctrine.” The trial court, after a non-jury trial, rendered judgment for Siegel against all three officers/directors jointly and severally. Only Mrs. Holliday appealed. The court of appeals reversed that portion of the trial court‘s judgment imposing liability on Mrs. Holliday and rendered a take-nothing judgment for her. 643 S.W.2d 519. We affirm the judgment of the court of appeals.
Hоlly Gram was a Texas corporation, which operated a shoe store and two dress shops. After slightly less than one year in business, Mrs. Holliday and the Grahams decided to dissolve the corporation. They agreed, however, to continue the business as sole proprietorships, with Mrs. Holliday taking the assets and liabilities of the shoe store and the Grahams doing likewise with the dress shops. They did not notify the known creditors of Holly Gram of the dissolution as rеquired by
It is undisputed that Mrs. Holliday has paid more money in discharge of the debts of Holly Gram than the value of all corporate assets at the time of dissolution. The trial court found those assets were worth about $20,000, and Mrs. Holliday received assets with a value of $10,000. After dissolution, Mrs. Holliday paid a total of $26,000 to various Holly Gram creditors.
The debt sued on by Siegel was for merchandise sold on account to the dress shops. Under the directors’ agreement, the Grahams were responsible for payment of that debt, but they were unable to pay it. Although no attempt was made by the directors to pay the debts on any particular basis, it is significant that Siegel makes no allegation that the directors have been guilty of fraud or even favoritism in their payment of corporate debts.
Siegel brought this suit for the remaining balance of $2,087.98 owed by Holly Gram on a trade account. Siegel bases its case for holding Mrs. Holliday personally liable on the trust fund doctrine as presently embodied in
In the exercisе of ... powers [necessary to wind up corporate affairs], the directors and officers shall be trustees for the benefit of creditors, shareholders, members, or other distributees of the corporation and shall be jointly and severally liable to such persons to the extent of the corporate property and assets that shall have come into their hands. (emphasis added).
The trust fund doctrine was considered in Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547 (Tex.1981). We determinеd that under the trust fund doctrine “when the assets of a dissolved corporation are distributed among its shareholders, a creditor of the dissolved corporation may pursue the assets on the theory that in equity they are burdened with a lien in his favor.” Id. at 550. We further stated that the theory “applies whenever the assets of a dissolved corporation are held by any third party, ... so long as the assets are traceable and have not been acquired by a bona fide purchaser.” Id. Accord Waggoner v. Herring-Showers Lumber Co., 120 Tex. 605, 40 S.W.2d 1, 5 (1931); Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 86 Tex. 143, 24 S.W. 16, 20-21, 25 (1893); Koch v. United States, 138 F.2d 850, 852 (10th Cir. 1943); Norton, Relationship of Shareholders to Corporate Creditors Upon Dissolution: Nature and Implications of the “Trust Fund” Doctrine of Corporate Assets, 30 Bus.Law 1061, 1069-79 (1975).
In Waggoner, this Court held that a transfer of the assets of an inactive and insolvent corporation made in an attempt to provide for payment of corporate obligations is made subject to an equitable lien. The Court stated:
We think the board of directors, as directors and trustees, had the right to sell the property to [one or two of the directors] ... to have the debts of the corporation paid; but the property passed ... charged with an equitable lien in favor of the creditors of the corporation dischargeable only upon the payment of the creditors in full or pro rata frоm the funds received from the corporate property ... [citations omitted]. Moreover, the directors were charged with the duty of seeing that the creditors [are so paid]....
Waggoner, 120 Tex. 605, 40 S.W.2d at 5. The meaning of the foregoing authorities is unmistakable. The existence of the so-called “trust” relationship in situations controlled by the trust fund doctrine provides no basis for personal liability of directors. It only allows corporate creditors to follow thе corporate assets and to subject those assets to the payment of their claims.
Our attention has been directed to several Texas cases that purportedly support Siegel‘s position. None of the cases cited hold that directors of a defunct corporation may, by virtue of the trust fund doctrine, be held personally liable to corporate creditors in an amount greater than the value of corрorate assets received by the directors, nor do any of these cases permit a personal judgment based upon the breach of a fiduciary relationship.
The correct construction of
Siegel has made no effort to trace the assets of Holly Gram, but has chosen only to enforce personal liability against Mrs. Holliday. It is undisputed that Mrs. Holliday has paid more to the creditors of Holly Gram than the total value of the corporate assets at dissolution. The limit on her liability has been surpassed, and Siegel cannot hold her personally liable for its claim.
We affirm the judgment of the court of appeals.
RAY, J., dissents with opinion in which SPEARS, J., joins.
RAY, Justice, dissenting.
I respectfully dissent. The majority has reached a result and has adopted reasoning to which I cannot subscribe. Under the majority‘s opinion, directors of a dissolved corporation will be able to escape their statutorily-imposed fiduciary duty to creditors; they will be frеe to pick and choose among the creditors they wish to pay, secure in the knowledge that creditors who do not receive their pro rata share will have no claim against them individually so long as the directors pay out at least an amount equal to the corporate assets on hand at dissolution. This result is patently inequitable, and is unnecessary under the pertinent statutes.
In its opinion, the court of appeals errоneously analyzed this case as if it were an alter-ego case. This case, however, does not involve the alter-ego doctrine. Rather, it involves an altogether different doctrine, a doctrine originally of equity but now embodied in statute (at least as it applies to dissolved corporations), a doctrine long known in Texas jurisprudence as the “trust fund doctrine.” It was on that basis that this case was argued by Siegel before the trial court and the court of appeals, and it is on that basis that I would reverse the court of appeals.
This case involves no new departure in Texas law. For almost a century, this court has held the equitable trust fund doctrine to be the law of this state. This doctrine, stated in general terms, is to the effect that whenever a corporation (1) is dissolved, (2) becomes insolvent and ceases doing business, or (3) simply ceases doing business with no intention to resume business, then the assets of the corporation become a “trust fund” for the benefit, primarily, of creditors. The officers and directors hold the corporate assets in trust for the corporate creditors. They are placed in a fiduciary relation to and owe a fiduciary duty to the creditors. That duty obliges them to administer the corporate assets for the benefit of the creditors and to ratably distrib-
The majority asserts that “the trust fund doctrine provides no basis for personal liability of directors.” They assert that the trust fund doctrine merely burdens inequitably distributed property with an equitable lien, and thus “only allows corporate creditors to follow the corporate assets and to subject those assets to the payment of their claims.” But then the majority goes on to state (rather inconsistently) that “personal liability of the director [may arise] because he has disposed of the assets in such a manner that they cannot be traced or because he has caused a diminution in the value of the assets.” In all these statements,2 the majority has unfortunately confused director liability under the trust fund doctrine with shareholder liability. The distinction is critical because of the difference in position of shareholders and directors vis-a-vis creditors. This distinction was pointed out in Friedlander, Post-Dissolution Liabilities of Shareholders and Directors for Claims Against Dissolved Corporations, 31 Vand.L.Rev. 1363, 1368 (1978):
Receipt of the distributed assets creates no personal liability for a shareholder unless the shareholder ‘has disposed of the trust fund in such a manner that it cannot be followed or where he has causеd a diminution in the value of the trust assets.’
The trust fund theory applies differently to directors of the dissolved corporation. Since shareholders are not trustees, they have no fiduciary duties and, as noted above, they are not personally liable except in special circumstances. Under the trust fund theory, shareholder liability arises because the shareholders possess the distributed assets to which an equitable lien has attached. The liability of distributing directors for claims against the dissolved corporation arises because they are trustees for creditors and shareholders in settling the dissolved corporation‘s affairs. Thus, director liability is personal and exists even though the director no longer possesses any of the dissolved corporation‘s assets. The liability arises, however, only if there is a breach of the fiduciary duties owed to creditors and shareholders while the director is acting in his capacity as trustee.
The primary fiduciary duty directors owe to creditors is to make adequate provision for payment of creditors’ claims against the dissolved corporation. If directors perform this duty, they are not liable to their dissolved corporation‘s creditors. (emphasis added).
Friedlander, p. 1368.
The majority also insists that
The statutes involved in this case,
I remain convinced that the majority opinion does not state the law as intended by the legislature. It is not a good idea to hold that
SPEARS, J., joins in this dissenting opinion.
ON MOTION FOR REHEARING
ROBERTSON, Justice, dissenting.
I would grant the motion for rehearing and therefore respectfully dissent. The record reflects that in January of 1980 the Board of Directors of Holly Gram, Inc. adopted a resolution to dissolve the corporation. The three directors, Mr. Alfred Graham, Mrs. Barbara Graham and Mrs. Edna Holliday, decided the two businesses being conducted by Holly Gram, Inc. would be split between the Grahams and Edna Holliday. The Grahams were distributed all assets of the dress shops and were to pay all corporate debts which had arisen from the operation of the dress shops. Similarly, all assets and liabilities associated with the operation of the shoe store were transferred to Edna Holliday. Edna Holliday thereafter notified the creditors of the shoe store of the dissolution and continued to operate the shoe store paying only those debts previously incurred by the shoe store. The creditors of the dress shops, including Siegel, were never notified and received little if any payment.
The failure of the directors of Holly Gram, Inc. to make a pro rata distribution of corporate assets to corporate creditors was a breach of their fiduciary duty as statutory trustees. Under these circumstances, Texas case law allows a creditor to hold the directors liable “for that portion of the assets that would have been available to satisfy his debt if they had been distributed pro rata to all creditors.” Tigrett v. Pointer, 580 S.W.2d 375, 384 (Tex.Civ.App.-Dallas 1978, writ ref‘d n.r.e.). Accordingly, I would reverse the judgment of the court of appeals and affirm the judgment of the trial court.