Stanley SHOOK, Appellant, v. Terry WALDEN and Joy Walden, Appellees, Stanley Shook, Patrick Jaehne and S & J Endeavors, L.L.C., Cross-Appellees.
No. 03-09-00576-CV
Court of Appeals of Texas, Austin.
March 16, 2012
Rehearing Overruled May 9, 2012.
369 S.W.3d 604
There is a presumption that every witness is competent to testify. See
Robinson claims that Williams fails to satisfy the second element of competency, i.e., a capacity to recollect. Williams testified that she could not remember speaking with investigators on the day of the shooting and admitted that she “wasn‘t really paying attention” to the cars parked in Nieto‘s driveway. However, she testified that she saw a small black SUV parked on the street in front of Nieto‘s home on the day of the shooting. Furthermore, she identified a picture of a Mercedes SUV as being the same model as the vehicle she observed. Overall, Williams‘s testimony reflects an ability to recollect relevant events. Any inconsistencies or inabilities to recall certain facts do not render Williams incompetent to testify, but go to the credibility of her testimony--an issue for the jury. See Rodriguez v. State, 772 S.W.2d 167, 173 (Tex. App.-Houston [14th Dist.] 1989); see also De Los Santos v. State, 219 S.W.3d 71, 81 (Tex.App.-San Antonio 2006, no pet.). Given the totality of Williams‘s testimony, we cannot say that the trial court abused its discretion by finding her competent to testify. Broussard, 910 S.W.2d at 960. Robinson‘s final point of error is overruled.
CONCLUSION
Having overruled all of Robinson‘s issues on appeal, we affirm the judgment of conviction.
Robert W. Bland, Reese & Williamson, L.L.P., Gonzales, TX, Patrick Jaehne, Bas-
Jamie A. Rose, Amanda G. Taylor, Hohmann, Taube & Summers, L.L.P., Austin, TX, for appellant.
Before Chief Justice JONES, Justices PEMBERTON and HENSON.
OPINION
BOB PEMBERTON, Justice.
The principal issue presented in this appeal concerns the power of courts to disregard the separate existence of a Texas limited liability company (LLC) under the equitable “veil-piercing” principles that have evolved in regard to business corporations. Specifically, we must determine whether, assuming these principles can be applied to LLCs, a claimant seeking to “pierce” an LLC‘s “veil” with respect to the entity‘s contractual liabilities must prove-as has long been required by statute when piercing the veil of a business corporation-that the person against whom liability is sought to be imposed used the LLC to perpetrate actual fraud for the person‘s direct personal benefit. Although the Texas Legislature has recently addressed this issue through amendments to the business organizations code that specifically extended the statutory standards governing veil piercing of corporations to LLCs,1 the case on appeal is among those governed by prior law.
Under prior law, we conclude that courts must resolve the question the same way the Legislature eventually did the veil of an LLC may be pierced with respect to the entity‘s contractual liabilities only upon proof that the defendant used the LLC to perpetrate actual fraud for the defendant‘s direct personal benefit.
BACKGROUND
The underlying dispute centers on a real property sale and home construction project that both went awry. On September 19, 2006, appellees and cross-appellants Terry and Joy Walden, then residents of Washington state, signed a pair of contracts with a homebuilding and real-estate development company, cross-appellee S & J Endeavors, LLC. In one of the contracts (the “Land Contract“), S & J agreed to convey to the Waldens, via general warranty deed, a residential lot in the western Bastrop County subdivision known as “The Colony” (the “Lot“) in exchange for a payment of $62,000. The Land Contract further provided that S & J was to furnish the Waldens with a survey of the Lot within seven days after the contract‘s effective date. The transaction was to close on the later of September 25, 2006, or within seven days after any objections to title defects, exceptions, or encumbrances revealed on the survey were cured or waived. In the event the sale did not close by the specified date, the Land Contract afforded the Waldens the rights either to terminate the contract or enforce it through specific performance.
In the second contract (the “Construction Contract“)-comprised of both a Texas Association of Builders form contract and an addendum drafted by the Waldens2-S & J agreed to build a single-family residence on the Lot according to agreed-upon plans and specifications. In exchange, the Waldens agreed to pay S & J the builder‘s costs plus twelve percent profit. The Construction Contract also
S & J had been formed in 2002.3 It had two members who were also its sole managers, appellant and cross-appellee Stanley Shook and cross-appellee Patrick Jaehne-hence the name “S” (Shook) and “J” (Jaehne). The Shook-Jaehne relationship was not limited to business-Jaehne was married to Shook‘s daughter until shortly before trial, and evidently this familial relationship had helped spur the formation of the business. According to Shook‘s testimony at trial, he had “set up” S & J following the marriage, including investing roughly $200,000 in the entity, to enable his new son-in-law to launch a business “building houses” so he could “make a good living,” a decision driven “100 percent” by the fact that Jaehne was now his daughter‘s husband.4 Shook depicted his role in S & J thereafter as merely that of a passive investor.5 Although the Waldens would later dispute that characterization, emphasizing such facts as S & J‘s use of Shook‘s residence as its mailing address, Shook‘s status as one of only two managers and members of the entity, Shook‘s signature on some of S & J‘s checks, and a handful of occasions in which Shook had contributed his own handiwork to the construction project,6 it is undisputed that Jaehne handled virtually all of the business‘s day-to-day operations. True to form, it was Jaehne rather than Shook who had executed both the Land Contract and the Construction Contract with the Waldens on S & J‘s behalf.
Upon signing the two contracts on September 19, 2006, the Waldens transmitted a $62,000 check to S & J in payment for the Lot. Construction on the house began within the same month. Thereafter, disputes arose concerning work quality and what Jaehne portrayed as frequent and unreasonable demands by the Waldens to remedy minor or imagined defects, change building plans, or obtain “extras” without additional charge. The disputes would escalate to the point that in September 2007, Joy Walden and Jaehne had a verbal altercation in which she ordered him to leave the property permanently and threatened to call the police.
Meanwhile, as construction on the house continued, there was a protracted delay in transferring title to the Lot to the Waldens. Causes of the delay included the fact that the Lot, though purportedly sold by S & J through Jaehne as its agent, was actually owned by Jaehne individually-and Jaehne had fallen behind in his payments of personal debt obligations secured by the property. There was also evidence that Jaehne sought to use the title transfer as leverage to ensure that the Waldens paid amounts he believed they owed for work under the Construction Contract. In response to Jaehne‘s failure or refusal to
The Waldens sued S & J and both Jaehne and Shook individually for damages, asserting numerous tort and contract theories.7 The claims were tried before a jury, which heard evidence for a total of fourteen days. At the conclusion of trial, the district court submitted questions inquiring as to whether S & J, Jaehne, or Shook had committed fraud through either misrepresentation or concealment of material facts; breached fiduciary duties owed to the Waldens; engaged in false, misleading, or deceptive acts or practices prohibited by the
The jury found S & J and Jaehne liable under each of the tort and DTPA theories submitted but awarded zero actual or additional damages. Additionally, although the jury found the predicate facts for imposing exemplary damages against S & J and Jaehne and purported to award approximately $45,000, the predicate finding was not unanimous, as required for such an award. In contrast to its findings against S & J and Jaehne, the jury failed to find that Shook was liable under any of the tort, DTPA, or exemplary-damage questions submitted.
The district court also submitted several liability issues predicated on contractual duties owed to the Waldens by S & J or Jaehne. These included questions inquiring whether S & J or Jaehne had failed to transfer legal title to the lot to the Waldens as required by the Land Contract and the date on which title was finally tendered. The Waldens viewed these questions as material to whether S & J or Jaehne was liable to them for liquidated damages under section 5.079 of the property code.
The district court additionally submitted issues inquiring whether S & J was liable
The district court did not submit any liability theories predicated on the existence of contractual duties owing directly from Shook to the Waldens. However, the court submitted, in separate questions, three alternative theories that it viewed as predicates for disregarding S & J‘s separate existence and imposing the entity‘s contractual liabilities upon either Shook or Jaehne, or both, individually: (1) “alter-ego,” (2) “single-business enterprise,” and (3) “sham.” In response to the first two questions, the jury found, respectively, that S & J was an alter-ego and single-business enterprise of both Shook and Jaehne. In response to the third question, which did not identify or refer to Shook or Jaehne, the jury found that S & J was “operated as a sham.”
Based on the foregoing jury findings, the district court rendered judgment awarding the Waldens $80,000 on their claims for breach of the Construction Contract against Jaehne, S & J, and Shook, imposed jointly and severally, plus prejudgment interest on that sum. However, concluding that the Land Contract was not the sort of “executory contract” that was subject to section 5.079 of the property code, the district court refused to award the Waldens liquidated damages.
Having awarded the Waldens damages on a breach-of-contract claim, the district court also awarded them attorney‘s fees under chapter 38 of the civil practice and remedies code.8 Specifically, the court held the Waldens were entitled to $318,000 for attorney‘s fees incurred prior to and during trial, another $10,000 in fees “for the services required to perform post-judgment discovery and to satisfy the judgment by writ of execution and other procedures,” and a total of $25,000 in appellate attorney‘s fees conditioned only on whether appeals were taken to this Court or the supreme court, regardless of the appeals’ outcomes. The district court also awarded the Waldens an additional $10,591.25 “as costs associated with professional services necessitated by actions of Defendants,” plus “[c]osts, including but not limited to Jury costs.” These awards of fees and costs, like the contract damages, were imposed on S & J, Jaehne, and Shook jointly and severally.
Shook and the Waldens each appealed.9
ANALYSIS
Shook‘s appeal
There is no dispute that, in the absence of affirmative jury findings on any direct liability theories against Shook, the district court‘s judgment imposing liability
This leaves the jury‘s alter-ego and “sham” findings as potential bases for the judgment against Shook, and Shook addresses these in his first issue. Shook asserts that neither of these findings was legally sufficient to support the judgment because the Waldens were required also to prove, and failed to prove, that he had used S & J to perpetrate actual fraud upon the Waldens for his “direct personal benefit” before the district court could validly pierce S & J‘s veil and impose the entity‘s contractual obligations on him individually. Shook‘s argument, as well as the Waldens’ responses to it, both reference the historical development of the jurisprudential and statutory standards that have governed application of the veil-piercing remedy to Texas corporations.
Prior to 1989, article 2.21 of the Texas Business Corporation Act mandated that the liability of shareholders in a Texas business corporation was limited to the value of their shares and made no mention of any exception through which they could be held individually liable for the corporation‘s obligations. See
A seminal event in the evolution of these equitable veil-piercing principles in Texas law-and of the respective roles of the judiciary vis-à-vis the Legislature in regulating their application-was the Texas Supreme Court‘s 1986 Castleberry decision. The immediate issue presented in Castleberry concerned the application of the “sham to perpetrate fraud” theory. The supreme court held, in part, that claimants seeking to establish that the corporate form was a “sham to perpetrate fraud” need not prove “actual fraud“-conduct that “usually involves dishonesty of purpose or intent to deceive” but the broader and more malleable concept of “constructive fraud“-“the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares to be fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests.” Castleberry, 721 S.W.2d at 272-73 (quoting Archer v. Griffith, 390 S.W.2d 735, 740 (Tex.1964)); see id. at 275 (“[w]hile this evidence may be no evidence of intentional fraud, constructive fraud is the standard“). The court emphasized that “sham to perpetrate fraud” and other corporate veil-piercing doctrines it had previously recognized were rooted in equity, responding to perceived “abuse” of the corporate form or its “use[] as part of a basically unfair device to achieve an inequitable result.” Id. at 271-72. And it followed, according to the Castleberry court, that Texas courts applying veil-piercing principles should employ a “flexible fact-specific approach focusing on equity,” relying on “common sense and justice,” and eschewing “adherence to any particular theory of liability.” Id. at 273 (quoting Gentry v. Credit Plan Corp., 528 S.W.2d 571, 575 (Tex.1975)); Hildebrand, Texas Corporations 42 (1942).
In response to what was perceived as a significant expansion of shareholder and director liability in Castleberry, the Legislature in 1989 amended article 2.21 to partially codify and limit judicial application of corporate veil-piercing principles. See
Subsequent amendments to article 2.21 extended the requirement of proving “actual fraud” for the defendant‘s “direct personal benefit” to veil piercing “on the basis that the holder . . . is or was the alter ego of the corporation, or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, or other similar theory,”
Meanwhile, as these jurisprudential and statutory standards governing veil piercing of corporations were continuing to evolve, the Texas Legislature, for the first time, authorized the creation of limited liability companies through its 1991 enactment of the Texas Limited Liability Company Act (LLC Act),10 later recodified as title 3 of the business organizations code.11 There is no dispute that S & J was formed under the former LLC Act and that its actions at issue here are governed by that statute rather than the code,12 although neither side suggests that there were any material substantive differences between the relevant counterpart provisions as of time of trial. Pertinent to this appeal, former LLC Act article 4.03 specified that “[e]xcept as and to the extent the regulations [of the LLC] specifically provide otherwise, a member or manager is not liable for the debts, obligations or liabilities of a limited liability company including under a judgment decree, or order of a court.”
Former LLC Act article 4.03 and its successors made no mention of veil-piercing principles as an exception to limited liability or whether or how such remedies might be applied against LLCs. Eventually, in 2011, the Legislature would add a new section 101.002 to title 3 of the business organizations code specifying that the code sections regulating and restricting veil piercing of corporations, sections
As had been the case with the pre-1989 version of article 2.21 of the Texas Business Corporation Act, which had similarly mandated limited liability while being silent as to veil piercing, Texas courts applying the pre-2011 versions of the LLC statutes have uniformly held (or at least assumed) that an LLC‘s veil could be pierced under extra-statutory equitable principles, although the Texas Supreme Court has yet to definitively address that question.15 In any event, Shook has not disputed that, as a general proposition, the veil of an LLC, like that of a corporation, may be pierced in some circumstances. But it follows, in Shook‘s view, that the same standards, restrictions, and limitations govern the availability and application of the veil-piercing remedy against both types of entities. These standards, Shook urges, include those stated in former Business Corporations Act article 2.21 and business organizations code section 21.223-before a trial court can impose on an individual “any contractual obligation” of the entity “or any matter relating to or arising from the obligation” on the basis that the individual is or was the entity‘s “alter ego . . . or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, or other similar theory,” the claimant must prove that the individual caused the entity to be “used for the purpose of perpetrating and did perpetrate an actual fraud” on the claimant primarily for the individual‘s “direct personal benefit.”
Applying these standards to this case, Shook observes that the district court‘s judgment holds him liable for what is plainly a “contractual obligation” of S & J “or [a] matter relating to or arising from the obligation” (S & J‘s obligations under the Construction Contract) and purports to impose that liability via “alter ego” and “sham” theories that come within “alter ego . . . or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, or other similar theory.”
The Waldens could have met such a burden either by presenting conclusive evidence that Shook had caused S & J to be “used for the purpose of perpetrating and did perpetrate an actual fraud” on the Waldens primarily for Shook‘s “direct personal benefit” or by obtaining a jury finding of such facts. See, e.g., Hanson Aggregates West, Inc. v. Ford, 338 S.W.3d 39, 42-46 (Tex.App.-Austin 2011, pet. denied) (discussing alternative requirements of affirmative jury findings or conclusive evidence). Shook questions whether there was any evidence, much less conclusive evidence, that he had used S & J to perpetrate an actual fraud on the Waldens primarily for his “direct personal benefit.” As for a jury finding, Shook observes that neither the district court‘s alter-ego question nor its “sham” question explicitly submitted the issues of whether he had used S & J to perpetrate an actual fraud for his “direct personal benefit.”17 Instead, Shook asserts, the issues were subsumed within one or more of the questions inquiring whether he was liable for fraud. See Willis, 199 S.W.3d at 272 (addressing similar separate submission of fraud in case applying business organizations code sections 21.223 and 21.224). In response to each of these questions, the jury, as previously noted, failed to find that Shook had committed fraud. See id. (holding that jury‘s failure to find defendant‘s fraud in separately submitted question precluded corporate veil from being pierced). In the absence of the requisite findings or conclusive evidence that Shook had used S & J to perpetrate actual fraud for his own direct personal benefit, Shook concludes, the district court erred in disregarding S & J‘s separate existence and holding him individually liable.
In response, the Waldens join issue principally with Shook‘s premise that the availability and application of the veil-piercing remedy against S & J, an LLC, was governed by the same standards, restrictions, and limitations applicable to corporations. That premise, in the Waldens’ view, is refuted by a straightforward comparison of the statutes that govern corporations vis-à-vis LLCs. They emphasize that the requirements Shook seeks to im-
A. A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate thereof or of the corporation, shall be under no obligation to the corporation or to its obligees with respect to:
. . .
(2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, owner, subscriber, or affiliate is or was the alter ego of the corporation, or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, or other similar theory, unless the obligee demonstrates that the holder, owner, subscriber, or affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, owner, subscriber, or affiliate; or
B. The liability of a holder, owner, or subscriber of shares of a corporation or any affiliate thereof or of the corporation for an obligation that is limited by Section A of this article is exclusive and preempts any other liability imposed on a holder, owner, or subscriber of shares of a corporation or any affiliate thereof or of the corporation for that obligation under common law or otherwise. . . .
The Waldens contrast the foregoing provisions governing “corporations” and “shareholders” with the statutes governing LLCs, an entirely distinct organizational form comprised of “members.” See
In the absence of any statutes regulating veil-piercing of LLCs, the Waldens further reason, the standards that govern
The case law to date provides only limited guidance in resolving the parties’ dispute. The Texas Supreme Court has not yet definitively spoken regarding whether or how corporate veil-piercing principles apply to LLCs. Shook does refer us to several cases from our sister courts and Texas federal courts that, in his view, support a holding that proof of actual fraud and direct personal benefit is required to pierce an LLC‘s veil. Many of these decisions trace back to two of the cases he cites, Pinebrook Properties, Ltd. v. Brookhaven Lake Property Owners Association, 77 S.W.3d 487 (Tex.App.-Texarkana 2002, pet. denied), and McCarthy v. Wani Venture, A.S., 251 S.W.3d 573 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).
In Pinebrook Properties, the court of appeals reversed a district court judgment that had pierced the veil of an LLC via an alter-ego theory, holding that the evidence was legally insufficient to support a finding of alter ego. 77 S.W.3d at 500-01. In relevant part, the court, citing article 2.21 of the former Business Corporation Act, held that proof of “[f]ailure to comply with corporate formalities is no longer considered in determining alter ego and is therefore no evidence of alter ego.” Id. The court‘s reliance on this feature of former article 2.21 would imply that the requirement that claimants prove actual fraud and direct personal benefit, found in the same statute, likewise extends to LLCs, as Shook urges here. However, even while acknowledging that article 2.21 referred to “corporate” matters, the court did not elaborate on its reasoning in applying the statute to an LLC. See id. Nor does there appear to be any indication in the opinion that the issue was disputed. See id.
In McCarthy, the trial court had submitted an actual fraud/direct personal benefit question in an LLC veil-piercing case, the jury had found in the affirmative, and the applicability of that requirement was not specifically disputed on appeal. See 251 S.W.3d at 589-92; see also id. at 592-95 (Jennings, J., dissenting). Instead, the claimant challenged whether an LLC‘s veil could be pierced in the first place, emphasizing former LLC Act article 4.03‘s mandate of limited liability and its silence regarding veil piercing. See 251 S.W.3d at 590. In rejecting that argument, the court of appeals, citing Pinebrook Properties and several decisions under other states’
In contrast to the decisions on which Shook relies, our independent research has uncovered an out-of-state federal-court decision that squarely addresses whether proof of actual fraud and direct personal benefit is required to pierce the veil of a Texas LLC. See Taurus IP, LLC v. DaimlerChrysler Corp., 534 F.Supp.2d 849 (W.D.Wis.2008) (Texas law). Relying on a statutory construction analysis similar to that advanced by the Waldens here, the court reasoned that proof of actual fraud was not required to pierce an LLC‘s veil because former article 2.21 of the Business Corporation Act “limits alter ego liability only for shareholders, owners, subscribers and affiliates, not directors, officers, managers or members.” Id. at 871. The court further reasoned, as do the Waldens, that application of the veil-piercing remedy was governed by Castleberry, and “a showing that an action was ‘so grossly unfair as to constitute constructive fraud’ will suffice.” Id. at 871-72 (quoting Castleberry, 721 S.W.2d at 273).20
To the extent that Shook‘s position relies solely on the texts of the veil-piercing restrictions and limitations in former Business Corporation Act article 2.21 and its successors, we would agree with the Waldens and the Taurus court that these requirements did not, as a matter of statutory construction, extend to LLCs at any time relevant to this case. See Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d at 628; Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995) (“every word excluded from a statute must also be presumed to have been excluded for a purpose” (internal quotes omitted)). And absent an applicable statute, as the Waldens urge, the availability of the veil-piercing remedy would be governed by extra-statutory equitable principles. However, it does not automatically follow that proper application of those equitable principles to S & J must track Castleberry, as the Waldens presume.
The application of veil-piercing principles, in Castleberry or elsewhere, reflects a balancing of competing policy interests concerning what are ultimately matters of economic regulation. On one hand are the goals said to be advanced by the State‘s provision of limited liability, such as encouraging investment, entrepreneurship, and economic growth. See, e.g., Willis, 199 S.W.3d at 272 (“Avoidance of personal liability is not only sanctioned by the law; it is an essential reason that entrepreneurs like Willis choose to incorporate their businesses.“). On the other hand is the goal of preventing limited liability and the entity‘s separate existence from being used to achieve ends that the law disfavors, expressed in terms of “abuse,” “injustice,” or “inequity.” See id. at 271-72; see also
At the time the Texas Supreme Court decided Castleberry, in 1986, the Legislature had not yet expressed its views through statute regarding the appropriate balancing of these interests. Within a few years thereafter, the Legislature spoke through the 1989 amendments to former Business Corporation Act article 2.21, and again through subsequent amendments. In so doing, the Legislature struck a balance that differed markedly from that of the Castleberry court with respect to veil piercing to impose individual liability for corporate contractual obligations-a claimant must prove that the individual used the corporate form to perpetrate actual fraud (i.e., that characterized by deliberately misleading conduct) for the individual‘s direct personal benefit. This balancing in part reflects a distinction, also reflected in pre-Castleberry cases, between the perceived relative equities of veil-piercing claimants who are asserting tort theories of recovery versus those suing in contract. The basic notion was that contract claimants, unlike most third parties suing in tort, had voluntarily chosen to deal with the corporation and, “[a]bsent some deception or fraud,” would have had the opportunity to apportion, through negotiated
We believe that these legislative policy judgments and balancing of interests must necessarily inform judicial application to LLCs of the equitable veil-piercing principles contemplated in Castleberry. In so concluding, we follow the lead of the Texas Supreme Court in addressing analogous issues concerning equitable prejudgment interest. After the supreme court held in its Cavnar decision that equitable prejudgment interest must be awarded in tort cases and prescribed accrual and compounding methodologies,21 the Legislature responded with a statute that prescribed somewhat less generous calculation methods but made them applicable only in cases involving “wrongful death, personal injury, and property damage,” leaving other cases to be governed by equitable principles.22 Thereafter, in Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., the supreme court, in deference to the Legislative policy judgments reflected in the prejudgment interest statute, overruled Cavnar to the extent of conforming the preexisting equitable accrual and compounding methodologies to the statutory standards even in cases that the statute did not reach. See Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 530-31 (Tex.1998); see also Owens-Illinois, Inc. v. Estate of Burt, 897 S.W.2d 765, 769 (Tex.1995) (adopting a prejudgment interest accrual rule for latent-injury cases “consistent with the prejudgment interest statute“). Such deference is especially appropriate when, as
Although the Waldens emphasize that the Legislature did not enact a statute to govern veil piercing of LLCs at times relevant to this case, they offer no reason why the relative equities present when claimants assert contract claims against LLCs and seek to pierce the entity‘s veil would categorically differ from those present when such claimants sue corporations. Nor can we perceive any; in either case, the basic question is the same: when should the policies of shielding investors and entrepreneurs from liability yield to the goal of preventing “abuse” of the entity‘s separate existence? As between the framework with which Castleberry resolved that question and the one more recently prescribed by the Legislature for veil-piercing claims against corporations, we believe that Texas courts must be guided by the latter in determining equity with respect to veil-piercing claims against LLCs. That is to say, claimants seeking to pierce the veil of an LLC must meet the same requirements as they would if the entity were a corporation. We would also observe that our conclusion is consistent with the results in Texas cases like Pinebrook Properties, although it is admittedly not made explicit in the reasoning of those decisions.23
Deferring to the legislative standards governing veil piercing of corporations and applying them to the Waldens’ claims here, it is beyond dispute that the district court‘s judgment holds Shook liable for a “contractual obligation” of S & J “or [a] matter relating to or arising from the obligation” and purports to impose that liability via “alter ego . . . or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, or other similar theory.” See
Absent proof that Shook caused S & J to be used to perpetrate actual fraud for his direct, personal benefit, we must hold that
Finally, in his third and remaining issue, Shook urges that the district court abused its discretion in awarding the Waldens sums for “professional services” expenses, post-judgment attorney‘s fees, appellate attorney‘s fees that are not conditioned on the Waldens’ success, and “costs” that included jury fees. Having sustained Shook‘s first two issues and held that the district court erred in imposing liability on him in the first place, we need not reach these complaints with the specific amounts the court awarded against him. See id.
The Waldens’ appeal
The Waldens bring three issues in their cross-appeal urging that the district court erred in refusing to award them liquidated damages against each cross-appellee under section 5.079 of the property code. Specifically, in their first issue, the Waldens argue that the district court erred in its legal conclusion that the Land Contract was not the sort of “executory contract” that was subject to section 5.079. In their second issue, the Waldens urge that in light of the jury‘s findings regarding the Land Contract and the date title passed, the district court was compelled to render judgment against S & J awarding them $192,000 in liquidated damages under sec-
As a threshold matter, we observe that the imposition of such liability against Shook would require the same findings of actual fraud and direct personal benefit as with S & J‘s Construction Contract liabilities because the liability would “relate to” or “arise from” a “contractual obligation” of the LLC, namely S & J‘s obligations under the Land Contract. Consequently, we overrule the Waldens’ issues as to Shook for the same reasons we have sustained Shook‘s issues on appeal.
However, we must still address whether the Waldens are entitled to section 5.079 liquidated damages against S & J or Jaehne. Resolution of that issue, unlike Shook‘s appellate issues, turns purely on statutory construction, which presents a question of law that we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). When construing a statute, our primary objective is to give effect to the Legislature‘s intent. Id. We seek that intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). “Where text is clear, text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh‘g) (citing Shumake, 199 S.W.3d at 284; Alex Sheshunoff Mgmt. Servs. L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex.2006)). We consider the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008) (citing Texas Dep‘t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004)); see also
As previously noted, section 5.079 of the property code requires a “seller” of property to “transfer recorded, legal title of the property covered by [an] executory contract to the purchaser not later than the 30th day after the date the seller receives the purchaser‘s final payment due under the contract.”
The pivotal question governing their entitlement to relief, as the Waldens acknowledge, is whether the Land Contract was an “executory contract” within the meaning of property code section 5.079. See
Subchapter D does not explicitly define “executory contract.” The linchpin of the Waldens’ position is that “executory contract” under subchapter D must be given its ordinary, general meaning, denoting a contract “that remains wholly unperformed or for which there remains something still to be done on both sides.” Black‘s Law Dictionary 369 (9th ed. 2009). They insist that the Land Contract was “executory” in this sense at all times before closing because both parties, by definition, had remaining obligations to perform.
In the Waldens’ view, their chief hurdle to recovery under section 5.079 is subchapter D‘s exclusion of an “executory contract that provides for the delivery of a deed from the seller to the purchaser within 180 days of the date of the final execution of the executory contract.” See
Neither S & J nor Jaehne filed an appellee‘s brief to join issue with the Waldens’ argument, but Shook did, and he advanced a competing construction of “executory contract.” Considering the context in which the Legislature used the term, “executory contract,” in Shook‘s view, was intended to have a technical meaning basically synonymous with a contract for deed. A contract for deed is a form of real property conveyance in which the purchaser obtains an immediate right to possession but the seller retains legal title and has no obligation to transfer it unless and until the purchaser finishes paying the full purchase price (and, often, interest, fees, or other related obligations), which is typically done in installments over several years. See Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 429 (Tex. 2005) (“. . . executory contracts [are] also known as contracts for deed. A contract for deed, unlike a mortgage, allows the seller to retain title to the property until the purchaser has paid for the property in full.“); Reeder v. Curry, 294 S.W.3d 851, 856 (Tex.App.-Dallas, 2009 pet. denied) (“[i]n an executory contract for the sale of land, such as the contract for deed in this case, the superior title remains with the
Shook emphasized that Texas courts, including the Texas Supreme Court, have frequently equated “executory contract” as used in subchapter D with a contract for deed. See, e.g., Flores, 185 S.W.3d at 429 (equating the two); Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex.2004) (“Since 1995, the Texas Property Code has required that sellers by executory contract (or ‘contract for deed‘) of certain residential property in Texas must record and transfer a deed within thirty days of final payment.“); Nguyen v. Yovan, 317 S.W.3d 261, 270 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (treating “executory contract” under subchapter D as synonymous with “contract for deed“); Zuniga v. Velasquez, 274 S.W.3d 770, 771 (Tex.App.-San Antonio 2008, no pet.) (same); Flowers v. Zuniga, No. 11-06-00144-CV, 2008 WL 1723225, at *1, 2008 Tex.App. LEXIS 2664, at *2 (Tex.App.-Eastland Apr. 10, 2008, no pet.) (mem. op.) (same); Sharp v. Smith, No. 12-07-00219-CV, 2008 WL 257237, at *1, 2008 Tex.App. LEXIS 666, at *1 (Tex.App.-Tyler Jan. 31, 2008, no pet.) (mem. op.) (same); Henderson v. Love, 181 S.W.3d 810, 812 (Tex.App.-Texarkana 2005, no pet.) (same); Kirk v. Barnett, 566 S.W.2d 122, 122 (Tex.Civ.App.-Houston [14th Dist.] 1978, no writ) (equating executory contracts for conveyance with contracts for deed under the predecessor to subchapter D); see also Graves, 958 S.W.2d at 472 (equating executory contracts for the sale of land to contracts for deed in a suit not under subchapter D or its predecessor).
Shook also pointed out that subchapter D contains several consumer-protection provisions that, he suggested, would have application to contracts for deed and not conventional contracts for sale of realty. These include:
- section 5.065, which mandates that a “purchaser in default [defined elsewhere as one who has “failed to make a timely payment” or comply with another term] under an executory contract be given 30 days to cure the “default.” See
Tex. Prop.Code Ann. § 5.065 .25 - section 5.064, which forbids a “seller” from enforcing the remedies of rescission or of “forfeiture and acceleration” unless and until the seller first gives notice of its intent to enforce the remedies and of the purchaser‘s right to cure under
section 5.065 . Seeid. § 5.064 .Section 5.063 , in turn, prescribes the content of the notice undersection 5.064 . In part, the notice must advise the purchaser that “YOU ARE NOT COMPLYING WITH THE TERMS OF THE CONTRACT TO BUY YOUR PROPERTY,” identify the default, and that unless the purchaser cured the default within a time specified in the notice, that “THESELLER HAS THE RIGHT TO TAKE POSSESSION.” See id. § 5.063 . - section 5.066, which requires that if the purchaser defaults after paying “40 percent or more of the amount due or the equivalent of 48 monthly payments under the executory contract,” the seller cannot enforce the remedies of rescission or of forfeiture, but may have the property sold at public auction following notice and 60 days to cure. See
id. § 5.063 . - section 5.071, which requires that “[b]efore an executory contract is signed by the purchaser, the seller shall provide to the purchaser” a written statement specifying the purchase price of the property; “the interest rate charged under the contract“; “the dollar amount, or an estimate of the dollar amount if the interest rate is variable, of the interest charged for a term of the contract“; the “total amount of principal and interest to be paid under the contract“; “the late charge, if any, that may be assessed under the contract“; and that a prepayment penalty may not be imposed “if the purchaser elects to pay the entire amount due under the contract before the scheduled payment date under the contract.” See
id. § 5.071 . - section 5.073, which prohibits “term[s] of the executory contract” that include certain late-payment fees. See
id. § 5.073 . - section 5.074, which authorizes the purchaser to “cancel and rescind an executory contract for any reason . . . not later than the 14th day after the date of the contract.” See
id. § 5.074 .
- section 5.077, which requires the seller to provide the purchaser, “in January of each year for the term of the executory contract,” a statement setting forth “the amount paid under the contract,” “the remaining amount owed under the contract,” “the number of payments remaining under the contract,” and certain information relating to tax and insurance payments on the property. See
id. § 5.077 .
In contrast to the “executory contract” contemplated by these provisions, Shook further contends, the Land Contract was merely a conventional contract for sale of realty, contemplating a discrete closing date at which the parties would conclude an exchange of payment for title rather than a series of payments to the seller extending into the future. He adds that the Waldens’ reasoning would imply that every contract for sale of realty would be an “executory contract” subject to subchapter D, at least prior to the closing date, and longer if either party breaches. This would be an absurd result that the Legislature could not possibly have intended, Shook adds, one that would render the limiting phrase “executory contract” superfluous and impose on such contracts numerous provisions that simply do not fit those type of conveyances.
While acknowledging that a contract for deed is one kind of “executory contract” under subchapter D, the Waldens insist that it is not the only kind. Some of our sister courts have stated or suggested as much. See Yarto v. Gilliland, 287 S.W.3d 83, 90 n. 10 (Tex.App.-Corpus Christi 2009, no pet.) (noting that executory contracts contemplate “that the purchaser complete performance in the future” and that a contract for deed “is a type of executory contract“); Reeder, 294 S.W.3d at 856 (“In an executory contract for the sale of land, such as the contract
We reverse the district court‘s judgment to the extent it imposes liability on Shook and render judgment that the Waldens take nothing on their claims against him. We affirm the district court‘s refusal to award the Waldens relief under section 5.079 of the property code.
Concurring and Dissenting Opinion by Justice HENSON.
DIANE M. HENSON, Justice, concurring and dissenting.
I concur with that portion of the majority decision affirming the trial court‘s refusal to award the Waldens relief under section 5.079 of the property code.
In reaching its conclusion with regard to alter-ego and “sham,” the majority recognizes, and I agree, that the ability to pierce the veil of LLCs exists and has existed since the enactment of the Texas Limited Liability Company Act in 1991. I also agree with the majority that the veil-piercing restrictions and limitations set forth in article 2.21 of the business corporation act do not, as a matter of statutory construction, extend to LLCs. Further, I agree with the majority‘s determination that the availability of veil-piercing with regard to LLCs, “absent an applicable statute, . . . [is] governed by extra-statutory equitable
The supreme court in Castleberry took a flexible approach to veil piercing, focusing on equity, without regard to intent. Id. at 273 (“Because disregarding the corporate fiction is an equitable doctrine, Texas takes a flexible fact specific approach focusing on equity.“). As the Castleberry court noted, “the purpose in disregarding corporate fiction is to prevent the use of the corporate entity as a cloak for fraud or illegality or to work an injustice, and that purpose should not be thwarted by adherence to any particular theory of liability.” Id. While the legislature may have subsequently balanced relevant competing policy interests in adopting the veil-piercing standard of actual fraud found in article 2.21, the legislature‘s approach, unlike Castleberry, does not necessarily focus on equity. See SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 455 (Tex. 2008) (noting that injustice and inequity described in Castleberry reference abuses that corporate structure should not shield and that article 2.21 takes stricter approach to veil piercing). Because an extra-statutory, equitable doctrine must focus on equity, I believe that the approach in Castleberry is the correct approach in the absence of a statutorily mandated standard, as in this case.1 Though Castle-
Furthermore, because Johnson & Higgins of Texas, Inc. v. Kenneco Energy is distinguishable from the present case, I believe the majority‘s reliance on this case is misplaced. See generally 962 S.W.2d 507, 529-31 (Tex.1998). The majority relies on Kenneco Energy for the proposition that “legislative policy judgments and balancing of interests must necessarily inform judicial application of equitable veil-piercing principles.” Prior to Kenneco Energy, the supreme court in Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex.1985), adopted a common-law rule allowing, for the first time, recovery of prejudgment interest in personal injury, wrongful death, and survival actions.2 However, two years after Cavnar, the legislature adopted a prejudgment interest statute, providing a statutory framework for calculating prejudgment interest in certain types of claims. See Kenneco Energy, 962 S.W.2d at 529 (citations omitted). In Kenneco Energy, the court considered the proper method of calculating prejudgment interest under Cavnar. Id. at 528. Ultimately, the court held that the case was governed by the common law rather
While seemingly analogous, there are several important distinctions between the present case and Kenneco Energy. First, the supreme court in Kenneco Energy deferred to a prejudgment interest statute that codified a brief history of common-law equitable prejudgment interest. In contrast, the availability of equitable veil-piercing claims in Texas predates any statutory standard by more than thirty years. Compare Torregrossa v. Szelc, 603 S.W.2d 803, 804 (Tex.1980) (summarizing basic rule of corporate veil piercing and citing previous Texas Supreme Court cases, including Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955)) and
Because I would hold that the equitable principles presented in Castleberry govern this case, no actual-fraud finding is required for Shook to be held liable under either a veil-piercing theory of sham to perpetrate a fraud or alter-ego. The undisputed evidence conclusively establishes that Shook was both a member and manager in S & J, and the jury found that S & J operated as the alter-ego of Shook and that S & J operated as a sham. Because these findings are supported by the record, I would affirm the trial court‘s judgment imposing the award of damages against Shook individually. For this reason, I respectfully dissent to that portion of the majority‘s opinion reversing and rendering in part that the Waldens take nothing on their claims against Shook. Because I agree with the majority‘s disposition of Walden‘s issues, I concur in the remainder of the majority‘s decision to affirm in part.
Daniel Glenn CRIPPEN, Appellant, v. STATE of Texas, Appellee.
No. 11-11-00138-CR.
Court of Appeals of Texas, Eastland.
April 5, 2012.
Discretionary Review Refused July 25, 2012.