Lead Opinion
OPINION
This is an action brought by appellee, James A. Robinson, to enforce the judgment entered in his favor in Robinson v. Texas Workforce Commission and Tryco Enterprises, Inc., No. 2000-32376, in the 113th District Court of Harris County, Texas (“the FLSA suit”). Appellants, Tryco Enterprises, Inc. (“Tryco”), Sharon C. Dixon, James Dixon, Crown Staffing, Inc. (“Crown Staffing”), and Troy Keith Dixon, appeal the judgment of the trial court holding them jointly and severally liable for the amounts owed to Robinson by Tryco in the FLSA suit and permitting enforcement of that judgment against the assets of all appellants.
In three issues, appellants argue that the trial court erred: (1) in piercing the corporate veil when it held them jointly and severally liable for using the corporate form to avoid paying the judgment in the FLSA suit; (2) in admitting the prior testimony of a witness given in the trial of the FLSA suit without a showing that the witness was unavailable to testify; and (3) in holding Sharon and James Dixon personally liable for the previous judgment against Tryco in the FLSA suit under Texas Tax Code section 171.255.
We reverse the judgment of the trial court as to Troy Keith Dixon and render judgment that Robinson take nothing by his claims against him. We affirm the judgment as to Tryco, Sharon Dixon, James Dixon, and Crown Staffing.
Background
The Dixons owned and operated Tryco, a temporary staffing company, as their family business. Sharon and James Dixon served as vice president and president, respectively, of the company, and their son Troy worked there as an employee. From 1996 to 2000, Tryco employed Robinson as a van driver. In 2000, after leaving Tryco, Robinson sued Tryco in the FLSA suit. He alleged that Tryco and the Dixons had violated the Fair Labor Standards Act (“FLSA”) by failing to pay him substantial amounts of money for time worked in excess of forty hours per week and that the Dixons had feed him for refusing to return copies of travel logs that he had made to substantiate his claims. The regulatory scheme under which Robinson sued provides, in relevant part, that an employer who violates the provisions of the FLSA may be held accountable for such violations by an action for damages, attorney’s fees, and costs in any federal or state court. See 29 U.S.C.S. §§ 201-19 (Lexis-Nexis 2010).
On August 13, 2003, after a trial on the merits of his FLSA claim, a jury returned a verdict in favor of Robinson.
Nine days later, on August 22, 2003, Tryco forfeited its corporate privileges for failure to pay its franchise tax.
On September 11, 2003, the trial court signed a judgment against Tryco on the verdict in the FLSA suit for statutory damages, including $58,349 for unpaid
One year later, on September 10, 2004, Robinson sued appellants in this action to enforce the judgment in the FLSA suit, alleging that Tryco forfeited its corporate charter and fraudulently transferred its assets to avoid paying the judgment awarded to him. Robinson alleged that, prior to August 22, 2003 — the date on which Tryco forfeited its corporate charter — Sharon and James Dixon transferred the employees and assets of Tryco to Crown Staffing, which they had also formed and for which they also served as vice president and president, “effectively leaving Tryco Enterprises Inc. as an empty shell and defrauding its creditors.” He contended that the Dixons’ transfer of employees and assets from Tryco to Crown Staffing “was a fraud against the rights of James Robinson, Defendant Judgment Debtors creditor, because the transfer was made with the intent to hinder, delay, or defraud Plaintiff and similarly situated creditors.”
On March 23, 2006, the instant action was called to trial. During the ensuing bench trial, Robinson began to present evidence regarding piercing of Tryco’s corporate veil. Appellants objected on grounds of lack of notice and surprise. The court ordered a sixty-day recess to allow Robinson to amend his pleadings to allege alter ego and piercing of the corporate veil.
In his second amended pleading, filed on March 27, 2006, Robinson asserted an alter ego theory of liability for the judgment in the FLSA suit, alleging that Tryco and its officers, the Dixons, organized and operated Crown Staffing, through their son Troy, as a mere tool or business conduit and that “James Dixon was the true owner/manager of both Tryco Enterprises, Inc. and Crown Staffing, Inc.” Robinson argued, alternatively, that Sharon and James Dixon organized and operated both Tryco and Crown Staffing as part of a single business enterprise and that James Dixon was the true owner/manager of both Tryco and Crown Staffing. Robinson asked that the trial court find James and Sharon Dixon individually liable “because they were officers of Defendant Tryco Enterprises, Inc. who forfeited corporate privileges on August 22, 2003 prior to the Judgment of September 11, 2003.” He stated that “[fjorfeiture of corporate privileges results in liability for corporate officers” under Tax Code section 171.255(a).
On September 27, 2006, trial of this action to enforce the judgment in the FLSA suit resumed. Prior to the taking of testimony, Robinson presented to the court the following exhibits: (1) the September 11, 2003 judgment in the FLSA suit and an abstract of that judgment dated January 4, 2004; (2) a Tryco business card for Birt Edison, which showed that Tryco was a “temporary help service” and that Edison was its Industrial Office Manager and which provided contact information for Tryco; (3) the tax forfeiture of Tryco’s corporate privileges dated August 22, 2003, certifying that Tryco’s managerial officers were James Dixon, YP, and Sharon C. Dixon, P/S/T; and (4) a determination of forfeiture of Tryco’s corporate charter by the office of the Texas Secretary of State, dated August 22, 2003, stating that Tryco had forfeited its corporate privileges and had not revived them within 120 days, that the Comptroller of Public Accounts had determined that Tryco “does not have assets from which a judgment for any tax, penalty, or court costs imposed under Chapter 171 of the [Texas Tax] Code may be satisfied,” and that “[i]t is therefore
The judgment in the FLSA suit, the abstract of that judgment, and Edison’s Tryco business card were offered and admitted into evidence without objection. Before the close of evidence, the trial court took judicial notice of Tryco’s tax forfeiture and James and Sharon Dixon’s status as managerial officers of Tryco.
As his first witness, Robinson called former Tryco and Crown Staffing manager Birthol Edison by reading into the record the testimony given by Edison in the FLSA suit. Appellants’ counsel objected to the admission of this testimony as hearsay. Robinson’s counsel replied that Edison was Tryco’s corporate representative, that the same counsel had represented each of the parties in the FLSA suit, and that Edison had been subject to cross-examination in that proceeding; therefore, his testimony was admissible as an admission of a party opponent. Robinson’s counsel also pointed out that Edison’s testimony in the FLSA suit had been given in open court, and appellants’ counsel agreed that Edison was Tryco’s corporate representative in that proceeding. The trial court conditionally admitted the testimony subject to appellants’ submitting briefing showing why Edison’s testimony from the FLSA suit was not admissible. The court permitted Robinson to read the testimony into the record over appellants’ general objection that it was hearsay, and it offered appellants’ counsel the opportunity to make specific objections during the reading. Counsel made no further objections to the testimony and permitted the testimony to be read. Appellants’ counsel did, however, object to Robinson’s subsequent testimony on the same matters on the ground that Edison’s testimony on that subject was already in evidence.
Edison testified that, prior to December 2001, he worked as a manager at Tryco, where his immediate supervisor was Stacy Wilson, one of Tryco’s vice presidents. Wilson reported to Tryco’s president, James Dixon. At the time of his testimony in the FLSA suit, Edison worked for Crown Staffing as its industrial manager. His immediate supervisor was still Wilson, then one of Crown Staffing’s vice presidents. Wilson reported to Crown Staffing’s president, James Dixon, who had also been Tryco’s president. Edison also testified that Crown Staffing used the same telephone numbers and the same business location as Tryco and that, at Crown Staffing, he provided staffing for several of the same companies as he had at Tryco. At the close of Edison’s testimony, Robinson’s counsel pointed out that, at the time of the FLSA suit, Edison worked for Crown Staffing and that he testified as a representative of Crown Staffing as well as Try-co. Appellants’ counsel did not object to the characterization of Edison as a representative of either Tryco or Crown Staffing.
Robinson also testified in the instant proceeding to enforce the judgment from the FLSA suit. He testified that, after his employment with Tryco ended, he called one of Tryco’s telephone numbers and spoke with one of his former Tryco coworkers. About six to seven weeks later, Robinson went to the location where Tryco had operated its business and saw that the
At the close of the evidence, Robinson agreed with appellants’ counsel and the trial court that he had abandoned his fraudulent transfer claims, leaving only his claims that (1) Sharon and James Dixon were liable to him for Tryco’s judgment debt from the FLSA suit under an alter ego or single business enterprise theory because, as officers of Tryco, they had forfeited that corporation’s charter and transferred its employees to Crown Staffing, using the corporate fiction of Crown Staffing as a mere conduit of fraud to avoid Tryco’s liabilities, and (2) as officers of Tryco, Sharon and James Dixon were liable for the debts of Tryco, including the judgment in his favor in the FLSA suit, under Tax Code section 171.255, which provides for the personal liability of corporate officers for debts of the corporation incurred after forfeiture of its charter.
On July 15, 2010, following a hearing, the trial court entered final judgment against appellants, holding them jointly and severally liable for the amounts awarded to Robinson against Tryco in the judgment rendered in the FLSA suit.
Hearsay
In their second issue, appellants contend that the trial court erred by admitting Edison’s recorded testimony from the FLSA suit. They contend that Edison’s prior testimony was inadmissible under Texas Rule of Evidence 801 because it was hearsay. See Tex.R. Evid. 801(d) (defining hearsay). They further argue that the testimony did not fall within an exception to the hearsay rule under Texas Rules of Evidence 804(a) and (b)(1) because Robinson failed to present any evidence that Edison was unavailable, that he had made a good-faith effort to locate Edison, or that appellants had an opportunity and similar motive to cross-examine Edison in the FLSA suit, as required for testimony from a former proceeding to qualify as an exception to the hearsay rule. See Tex.R. Evid. 804(a), (b)(1) (governing admissibility of former testimony from unavailable witness). Robinson responds that Edison’s testimony was not hearsay but instead constituted an admission by a party-opponent, which is excluded from the definition of hearsay and, therefore, need not satisfy the requirements for admission as an exception to the hearsay rule.
Appellants’ hearsay objection was not preserved and, therefore, presents no ground for reversing the trial court’s admission of Edison’s testimony. Texas Rule of Appellate Procedure 38.1 requires that, as a prerequisite to presenting a complaint on appeal, the record must show that “the complaint was made to the trial court by a timely request, objection, or motion that ... stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint” and that “the trial court ... ruled on the ... objection ... either expressly or implicitly; or ... refused to rule ..., and the complaining party objected to the refusal.” Tex.R.App. P. 33.1.
Here, appellants’ counsel made only a general hearsay objection to the admission of Edison’s testimony from the FLSA suit. He did not object with specificity, despite the trial court’s invitation to him to do so; nor did he obtain a definitive adverse ruling while the trial court was in a proper position to change its conditional ruling of admissibility and Robinson was in a position to offer other testimony or to subpoena Edison to testify. See Campbell,
Moreover, even if appellants had preserved this complaint for appellate review, they have failed to establish that Edison’s testimony in the FLSA suit constituted inadmissible hearsay in the instant enforcement action.
In general, “ ‘[h]earsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). Hearsay is inadmissible as evidence unless provided by statute or rules, including the hearsay exception rules. Tex.R, Evid. 802. However, inadmissible hearsay admitted without objection is not denied probative value merely because it is hearsay. Id.
Under Rules 804(a) and (b)(1), pri- or testimony is admissible as an exception to the hearsay rule if the proponent proves that the declarant was “unavailable” as defined in subsection 804(a); that a good-faith effort was made to locate and present the witness; and that the party against whom the testimony is offered, or one with a similar interest, had an opportunity to cross-examine the witness. See Tex.R. Evid. 804(a), (b)(1). However, if the de-clarant’s statement is not hearsay, no hearsay exception is needed to admit the statement, and Rule 804(b)(1) is irrelevant.
Under Rule 801(e)(2), the admission-by-party-opponent exclusion from the definition of hearsay, statements by a party opponent are not hearsay if they are offered against a party and are the party’s own statements in either an individual or a representative capacity. TEX.R. EVID. 801(e)(2); Oyster Creek Fin. Corp.,
Any statement, including former testimony, may be admitted under one of the admission-by-party-opponent exclusions, regardless of the witness’s availability. Oyster Creek Fin. Corp.,
Here, Edison testified in the FLSA suit as a managing employee and corporate representative of both Crown Staffing and, prior to that, Tryco. • Edison stated that Crown Staffing continued the same business of providing temporary staff as Tryco at the same location using the same employees under the same managers. Edison’s Tryco business card further confirms that Edison was previously employed as an industrial manager at Tryco; and Robinson’s testimony confirms that Edison was employed in a managerial position at Crown Staffing at the same location at the time he gave his testimony in the FLSA suit. Robinson’s counsel also characterized Edison as a representative of both Tryco and Crown Staffing, and appellants’ counsel did not object to this characterization. We conclude that the excerpt of Edison’s testimony from the FLSA suit admitted in the instant enforcement action was thus “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” See Tex.R. Evid. 801(e)(2)(D).
We hold that Edison’s recorded testimony from the FLSA suit, the judgment from which Robinson seeks to enforce in this action; was properly admitted under Rule 801(e)(2)(D) as the admission of a party-opponent, and, thus, appellants’ hearsay objection is irrelevant. See Oyster Creek Fin. Corp.,
We overrule appellants’ second issue and turn to the merits of the appeal.
Liability Under Former Article 2.21 of the Texas Business Corporations Act
In their first issue, appellants argue that the trial court erred in piercing the corporate veil under a single business enterprise or alter ego theory and finding appellants jointly and severally liable for the judgment against Tryco in the FLSA suit. With respect to this issue, appellants con
Robinson argues that appellants are jointly and severally liable to him under a single business enterprise theory or alter ego theory for the judgment in the FLSA suit because the Dixons used the corporate forms of Tryco and Crown Staffing as a mere conduit of fraud to avoid paying the judgment awarded to him against Tryco. He contends appellants’ actions — forfeiting Tryco’s corporate charter for non-payment of franchise taxes after the verdict was delivered in the FLSA suit and before the judgment was entered, transferring Try-co’s assets to Crown Staffing on that same day, and leaving Tryco without assets to pay the judgment — -justify piercing the corporate veil and holding appellants jointly and severally liable for the judgment in the FLSA suit under former article 2.21 of the Texas Business Corporations Act, now section 21.223 of the Texas Business Organizations Code,
Business Organizations Code section 21.223, like its predecessor, article 2.21, provides that an owner of a corporation, such as Tryco, may be held liable to the corporation or its obligees — such as judgment creditors — for any contractual obligation of the corporation or matter arising from a contractual obligation of the corporation — such as, here, the judgment arising from Tryeo’s breach of its statutory and contractual obligation to pay Robinson wages in compliance with the FLSA — if the owner “was the alter ego of the corporation” and “caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obli-gee primarily for the direct personal benefit of the ... owner” — here, the fraud of incorporating Crown Staffing, forfeiting Tryco’s corporate charter, and transferring Tryco’s assets to Crown Staffing to avoid execution of Robinson’s judgment against Tryco. TEX. BUS. ORGS.CODE § 21.223(a)(2), (b) (Vernon Supp.2010); see also SSP Partners v. Gladstrong Invs. (USA) Corp.,
Section 21.223 provides, in relevant part:
(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 of such a holder, owner, or subscriber or of the corporation, may not be held liable to the corporation or its obligees with respect to
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(2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation*508 or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or similar theory;
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(b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee demonstrates that the holder, beneficial 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, beneficial owner, subscriber, or affiliate.
TEX. BUS. ORGS.CODE ANN. § 21.223(a)(2), (b). “Actual fraud” as defined by article 2.21 “involves dishonesty of purpose or intent to deceive.” Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd.,
“The corporate form normally insulates shareholders, officers, and directors from liability for corporate obligations .... ” Castleberry v. Branscum,
Parties are not, however, jointly liable for a corporation’s obligations “merely because they were part of a single business enterprise,” i.e., “merely because of centralized control, mutual purposes, and shared finances.” SSP Partners,
To pierce the corporate veil and impose liability under an alter ego theory of liability pursuant to SSP Partners, a plaintiff must show: (1) that the persons or entities on whom he seeks to impose liability are alter egos of the debtor, and (2) that the corporate fiction was used for an illegitimate purpose, in satisfaction of the requirements of article 2.21 — now Business Organizations Code section 21.223(a) and (b).
A. Appellants as Alter Egos of Each Other
To satisfy the first consideration in piercing the corporate veil— whether the persons or entities sought to be charged with liability are alter egos of the primary debtor — the relationship between corporate entities can be assessed using factors such as:
• whether the entities shared a common business name, common offices, common employees, or centralized accounting;
• whether one entity paid the wages of the other entity’s employees;
• whether one entity’s employees rendered services on behalf of the other entity;
• whether one entity made undocumented transfers of funds to the other entity; and
• whether the allocation of profits and losses between the entities is unclear.
Id. at 450-51.
Here, there is uncontroverted evidence, from Edison, Robinson, and the public records of which the trial court took judicial notice, that James and Sharon Dixon were owners and officers of Tryco. Rather than paying Tryco’s corporate franchise tax, which was due and unpaid at the time the verdict was reached and the judgment entered in the FLSA suit, the Dixons forfeited Tryco’s corporate charter. The same day they forfeited the corporate charter— after the verdict was returned, but before the judgment was entered on it — James and Sharon Dixon transferred Tryco’s assets to Crown Staffing, which they had previously incorporated. Crown Staffing had the same officers as Tryco, including James Dixon, its president; it took over the offices of Tryco at the same location; it used the same telephone numbers as Try-co; it shared common employees with Try-co; it performed the same temporary staffing services for essentially the same companies; and it was. managed by the same managers.
Furthermore, the evidence showed that James and Sharon Dixon exercised absolute ownership and control over both corporations, maintained a very significant personal financial interest in both corporations, and used them for personal purposes. Specifically, they neglected the corporate formality of paying Tryco’s franchise tax and transferred all of Tryco’s assets to Crown Staffing for the purpose of avoiding payment of the judgment in the FLSA suit.
The foregoing un-refuted evidence establishes that Tryco and Crown Staffing were both alter egos of Sharon and James Dixon and part of a single business enterprise for purposes of piercing the corporate veil under former Business Corporations Act article 2.21 and under the current provision, Business Organizations Code section 21.223. We hold, therefore, that Robinson satisfied the first prong of the test for finding these appellants jointly and severally liable for the judgment in the FLSA suit.
B. Use of the Corporate Fiction to Perpetrate a Fraud
The foregoing factors “are almost entirely irrelevant” to the second
The supreme court observed in SSP Partners that courts “disregard the corporate fiction, even though corporate formalities have been observed and corporate and individual property have been kept separately, when the corporate form has been used as part of a basically unfair device to achieve an inequitable result.”
(1) when the fiction is used as a means of perpetrating fraud;
(2) where a corporation is organized and operated as a mere tool or business conduit of another corporation;
(3) where the corporate fiction is resorted to as a means of evading an existing legal obligation;
(4) where the corporate fiction is employed to achieve or perpetrate monopoly;
(5) where the corporate fiction is used to circumvent a statute; and
(6) where the corporate fiction is relied upon as a protection of crime or to justify wrong.
Id. (quoting Castleberry,
We conclude, on the basis of the evidence in this case, that five of the criteria for piercing the corporate form and finding appellants jointly and severally liable for the judgment against Tryco in the FLSA suit are satisfied: (1) the corporate fiction was used with respect to both Tryco and Crown Staffing as a means of defrauding Robinson by depriving Tryco of assets to pay the judgment awarded against it in the FLSA suit; (2) Crown Staffing was organized and operated as a mere tool or business conduit of Tryco’s and James and Sharon Dixon’s temporary staffing business; (3) the Dixons forfeited Tryco’s charter, organized Crown Staffing, and transferred Tryco’s assets to it as a means of evading Tryco’s legal obligation to pay the judgment in the FLSA suit; (4) the corporate fiction was used to circumvent the consequences to James and Sharon Dixon of Tryco’s violation of a federal statute, the FLSA, by transferring the assets of Tryco, which were subject to Robinson’s judgment lien, to Crown Staffing, leaving Tryco without assets to pay the judgment in the FLSA suit; and (5) the corporate fiction was thereby relied upon by appellants to justify a wrong. Thus, the evidence supports an affirmative finding that the corporate fiction was used illegitimately by James and Sharon Dixon, Tryco, and Crown Staffing in violation of the second prong of the test for piercing the corporate veil and imposing liability under article 2.21 or Business Organizations Code section 21.223.
We hold that Robinson has produced evidence sufficient to establish that Crown Staffing was used as the mere tool or business conduit of Tryco and of James
We also hold, however, that Robinson has failed to show by more than a scintilla of evidence that Troy Dixon owned or controlled either Tryco or Crown Staffing or used the corporate fiction illegitimately; therefore, Robinson has not proved Troy Dixon’s personal liability to him under section 21.223.
We overrule appellants’ first issue as to James and Sharon Dixon, Tryco, and Crown Staffing, and we sustain it as to Troy Dixon.
Conclusion
We reverse the judgment of the trial court as to appellant Troy Keith Dixon and render judgment that Robinson take nothing by his claims against him. We affirm the judgment as to appellants Tryco Enterprises, Inc., Sharon C. Dixon, James Dixon, and Crown Staffing, Inc.
Justice KEYES, concurring.
Justice MASSENGALE, concurring in part and dissenting in part.
Notes
. See Tex.R. Evid. 201 (providing for judicial notice of adjudicative facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”); Tex.R. Evid. 803(8) (public records as exception to hearsay rule).
. Tex. Tax Code Ann. § 171.255 (Vernon 2008).
. Article 2.21 expired effective January 1, 2010. Article 2.21(a) has been codified in substantially the same form in Texas Business Organizations Code section 21.223. See SSP Partners v. Gladstrong Invs. (USA) Corp.,
. In Castleberry v. Branscum, the supreme court had held that a showing of constructive fraud was enough to demonstrate an illegitimate use of the limited liability afforded to corporations under a single business enterprise theory of liability.
. In their third issue, appellants argue that Robinson’s suit to enforce the judgment in the FLSA suit is predicated on the claim that James and Sharon Dixon perpetrated a fraud that violated Tax Code section 171.255 by forfeiting Tryco’s charter before the judgment was entered. Appellants argue that the Dix-ons’ actions were not illegal or wrongful under section 171.255 and that, therefore, they cannot be personally liable to Robinson under either that section of the Tax Code or Business Organizations Code section 21.223. Because our holding with respect to appellants' first issue is dispositive, we find it unnecessary to reach appellants’ third issue.
Concurrence Opinion
concurring.
Because the majority opinion’s holding on appellants’ first issue is dispositive of this appeal, it is unnecessary to address the Dixons’ third issue concerning their personal liability for the judgment in the FLSA suit under Tax Code section 171.255. However, because the dissent specifically addresses this issue and partially accepts the Dixons’ arguments, I take the unusual, but not unprecedented, step of authoring a separate concurring opinion to address the dissent’s arguments on this issue. See, e.g., Mosqueda v. G & H Diversified Mfg., Inc.,
In their third issue, James and Sharon Dixon argue that they are not personally liable under Tax Code section 171.255 for the judgment entered against Tryco in the FLSA suit. They argue, “Texas courts have consistently held that individual liability on the officers of corporations after the forfeiture of their corporate privileges does not apply to debts brought into exis
Robinson, on the other hand, argues that the Dixons misread section 171.255 and the case law applying it. He argues that the debt he seeks to collect is not a series of debts for unpaid wages incurred in the ordinary course of Tryco’s business over a period of time, but a judgment debt, based on a jury verdict, awarding him statutory damages for ongoing violations of the FLSA by Tryco’s corporate officers entered after forfeiture of Tryco’s corporate charter and the transfer of its assets. Under section 171.255, the officers of a corporation may be held liable for their own wrongful acts that resulted in a debt of the corporation incurred after forfeiture of its corporate charter.
Robinson points out that Tryco forfeited its corporate charter by failing to pay franchise taxes on August 22, 2003, immediately after the verdict was reached in the FLSA suit on August 13, 2003, and shortly before the judgment was entered on September 11, 2003. Robinson contends that James and Sharon Dixon fraudulently forfeited Tryco’s charter and transferred Try-co’s assets to Crown Staffing to avoid paying the judgment in the FLSA suit. He argues that, under established law, the judgment debt in the FLSA suit falls squarely within the definition of a “debt” of a defunct corporation for which the corporation’s officers and directors may be held personally liable under Tax Code section 171.255. I agree with Robinson.
Tax Code section 171.255 provides:
(a) If the corporate privileges of a corporation are forfeited for the failure to ... pay a tax or penalty, each director or officer of the corporation is liable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due and before the corporate privileges are revived. The liability includes liability for any tax or penalty imposed by this chapter on the corporation that becomes due and payable after the date of the forfeiture.
(b) The liability of a director or officer is in the same manner and • to the*513 same extent as if the director or officer were a partner and the corporation were a partnership.
(c) A director or officer is not liable for a debt of the corporation if the director or officer shows that the debt was created or incurred:
(1) over the director’s objection; or
(2) without the director’s knowledge and that the exercise of reasonable diligence to become acquainted with the affairs of the corporation would not have revealed the intention to create the debt.
Tex. Tax Code Ann. § 171.255 (Vernon 2008).
Thus, corporate officers and directors may not be held personally liable under section 171.255 for lawfully contracted debts of the corporation that occurred pri- or to forfeiture of the corporate charter or incurred after forfeiture without their knowledge and approval. But they may be held personally liable for “debt” created or incurred after forfeiture of the corporate charter.
A “debt” as used in section 171.255(a) “is defined as ‘any legally enforceable obligation measured in a certain amount of money which must be performed or paid within an ascertainable period of time or on demand.’ ” Taylor v. First Cmty. Credit Union,
I agree with Robinson that the judgment entered against Tryco in the FLSA suit for statutorily mandated damages, attorney’s fees, costs, and interest was a “legally enforceable obligation measured in a certain amount of money” payable by Tryco to Robinson within a specified time period or on demand. I further agree that a legally-enforceable obligation for a sum certain was incurred by Tryco only when the trial court entered judgment in the form of statutory damages on the jury verdict in the FLSA suit after Tryco had failed to pay franchise taxes and had forfeited its corporate charter. See Taylor,
The dissent draws a distinction unique to section 171.255 jurisprudence between unpaid compensation awarded as liquidated damages under section 216 of the FLSA and the doubling of that amount, also awarded as liquidated damages under that same section of the FLSA, for the employer’s willful violation of the FLSA. It construes the damages awarded by the jury for wrongfully withheld statutorily mandated compensation as a series of lawful debts of the corporation incurred in the ordinary course of Tryco’s operations and merely renewed in the post-forfeiture judgment. It then construes the doubling of the damages award by the jury for the willfulness of the violations, in accordance with the terms of the statute, as a new debt incurred after forfeiture. I disagree with the dissent’s reasoning and its conclusion.
“Liquidated damages” awarded for violations of the FLSA are not merely the memorialization of accumulated pre-exist-ing debts. The FLSA is set out in Title 29 of the United States Code. Sections 206 and 207 of the Act regulate the payment of wages and overtime compensation by employers. Section 216(b) provides for damages for violations of the Act. It states, in relevant part: “Any employer who violates the provisions of [section 206] or [section 207] of this Act shall be liable to the employee or employees affected in the amount of ... their unpaid overtime compensation ... and in an additional equal amount as liquidated damages.... ” 29 U.S.C.A. § 216 (LexisNexis 2010). The trial court’s duty to award liquidated damages in an amount equal to the unpaid compensation due under sections 206 and 207 of the FLSA is a ministerial duty under the terms of section 216. Míreles v. Frio Foods, Inc.,
In any action ... to recover ... unpaid overtime compensation, or liquidated damages, under the [FLSA], if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA] ... the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section [216].
29 U.S.C.S. § 260 (LexisNexis 2010) (emphasis added); Míreles,
The debt owed in this case for Tryco’s FLSA violations was determined, liquidated, and made enforceable by the judgment entered by the trial court in accordance with the mandate of the FLSA. This required that the trial court determine the amount of overtime compensation due Robinson under the statute and that it double that amount to determine the liquidated damages due Robinson, unless Try-co’s officers carried their “heavy burden” of showing to the satisfaction of the court that they acted in good faith and had reasonable grounds for believing that their acts in withholding overtime compensation from Robinson (and also for retaliatorily firing him) did not violate the FLSA. See 29 U.S.C.S. §§ 216, 260. Here, the trial
The Texas Supreme Court first defined a corporate debt for which corporate officers may be held personally liable after forfeiture of the corporate charter with respect to the predecessor of section 171.255 in the seminal case of Schwab v. Schlumberger Well Surveying Corp.,
In Schwab, the supreme court refused to hold the officers of a defunct corporation personally liable on a note evidencing obligations of the corporation when the note at issue merely renewed a debt after forfeiture of the corporate charter. Id. at 81-82. The court held that the word “created” means “[t]o bring into existence,” while the word “incurred” means “brought on, occasioned, or caused.” Id. at 81. Under these definitions, it held, “the liability imposed under the statute is only for debts contracted after the forfeiture of the right to do business, and has no application to the renewal of obligations arising prior thereto.” Id. (emphasis added). Rather, “¡t]he statute was meant to prevent wrongful acts of culpable officers of a corporation, and was for the protection of the public and particularly those dealing with the corporation.” Id. (emphasis added).
Subsequently, the supreme court, further construing that same predecessor of section 171.255, held that the officers of a defunct corporation were personally liable for debts of the corporation incurred for purchases of merchandise to which the officers consented and which they approved after the corporation had forfeited its right to do business. First Nat’l Bank of Boston v. Silberstein,
Here, there was no “renewal” of Tryco’s pre-existing debts to Robinson after the forfeiture of Tryco’s corporate charter. Rather, there was a judgment for a sum certain for violations of the FLSA that resulted from and was attributable to the wrongful acts of the Dixons, as corporate officers of Tryco. This case thus falls squarely within the scope of section 171.255 as construed by the Texas Supreme Court in Schwab and Silberstein.
An examination of Schwab and Silber-stein and of the case law following these two cases in construing section 171.255 and its predecessor statute makes it apparent that the Dixons and the dissent have conflated the two different types of corporate debt distinguished in these cases: (1) the lawful contractual debts of a corporation, which may be renewed or reduced to judgment after forfeiture of the corporation’s charter without changing the underlying nature of the debt as a debt of the corporation incurred pre-forfeiture in the regular course of its business, and (2) both (a) new debts incurred by the corporation and approved after forfeiture by officers with knowledge of the forfeiture and (b) judgment debts or penalties incurred by a corporation for the wrongful acts of its officers or directors that occurred prior to
Corporate officers and directors may be held personally liable for liquidated damages awarded, or penalties assessed, in a post-forfeiture judgment as a result of their own wrongful acts that occurred either before or after forfeiture to the same extent a partner in a partnership may be held liable for his own acts. See Tex. Tax Code Ann. § 171.255(b) (“The liability of a director or officer is in the same manner and to the same extent as if the director or officer were a partner and the corporation were a partnership”); see also Silberstein,
The Dixons also argue, and the dissent agrees, that each wrongful failure of Tryco to pay Robinson’s overtime wages “relate[s] back” to the date of the separate and specific statutory violation, all of which occurred before forfeiture. The Dixons contend that because the “individual liability of the officers of corporations after the forfeiture of their corporate privileges does not apply to debts brought into existence, caused by, resulting from, or arising out of actions occurring before forfeiture,” they are not jointly and severally liable for the judgment against Tryco.
The Dixons contend that Rogers v. Adler,
“Broadly speaking, the relation-back doctrine may be applied to give effect to the parties’ lawful intentions, preserve rights that would otherwise be lost, or afford a remedy when none would otherwise exist.” Cain,
By contrast, in Rogers v. Adler, the Dallas Court of Appeals applied the “relation-back” doctrine and held that two officer-directors of a corporation were not personally liable for a judgment rendered against the corporation after forfeiture of its corporate charter for a debt of the corporation incurred on a purchase contract where all the operative facts occurred at least four years before the forfeiture and were “essentially claims based on contract despite the allegations of fraud and breach of fiduciary duty.”
The other cases upon which the Dixons and the dissent rely as authority for applying the relation-back doctrine to this case are all inapplicable for the same reason Rogers is inapplicable: all of the cases are cases in which the plaintiff sought to collect from corporate officers or directors after forfeiture of the corporate charter debts incurred in the regular course of the business of a corporation prior to forfeiture; all are cases in which the court’s decision gave effect to the lawful intentions of the parties to a preexisting contract, preserved rights that would otherwise be lost, or afforded a remedy to a creditor of the corporation when none would otherwise exist. See Cain,
Similarly, in Williams v. Adams,
In holding the officers not liable for the judgment in Williams, the Corpus Christi Court of Appeals applied section 171.255(c)’s exception to the liability of an officer or director of a corporation, which applies to preclude personal liability for a debt of the corporation incurred without the director’s or officer’s knowledge if the exercise of reasonable diligence would not have revealed the intention to incur the debt. Williams,
This case, by contrast, like Cain, falls squarely within the scope of acts for which a corporate officer or director of a defunct corporation may be held personally liable under Schwab, Silberstein, and their progeny, and to which the relation-back doctrine does not apply, namely, those cases in which a penalty or judgment is incurred by a corporation after forfeiture of its corporate charter as a result of the wrongful acts of the corporation’s officers or directors before or after forfeiture.
Cain was an officer and director of an oil-well-operator corporation.
The Austin Court of Appeals also followed this principle in Jonnet v. State,
Exactly the same reasoning applies here. Tryco’s acts of violating the FLSA through the willful failure of the Dixons, its corporate officers, to pay Robinson overtime compensation to which he was statutorily entitled constitute an ongoing series of wrongful acts of violation of the FLSA prior to forfeiture of the corporate charter, as did the Jonnet defendants’ ongoing violations of the Railroad Commission rule. And the statutory damages due Robinson for the willful acts of Tryco’s corporate officers were reduced to a liquid and enforceable debt only in the judgment against Tryco entered in the FLSA suit after forfeiture of Tryeo’s corporate charter and the transfer of its assets. Thus, the Dixons, as officers of Tryco, may be held personally liable for the damages awarded to Robinson in that judgment, just as the defendant-officers in Jonnet and Cain were held personally liable for the penalty assessed against the corporation and the cost of funds expended by the State to plug abandoned oil wells, respectively.
This case is also similar to Taylor. Taylor was an action brought against an automobile-dealership corporation and its officer-director by a lender to the corporation for the balance due on defaulted retail automobile installment contracts. See
The Fourteenth Court of Appeals rejected the application of the relation-back doctrine in Taylor, stating that it conflicted with the Legislature’s 1987 definition of a debt as any legally enforceable obligation measured in a certain amount of money. Id. at 869. Reasoning that this definition constituted an intervening and material change in the statutory law, the court overruled its own precedent applying the relation-back doctrine in River Oaks Shopping Center v. Pagan,
Finally, in Beesley, the Dallas Court of Appeals held that the promoter and officer of a corporation that had forfeited its corporate charter could not be held personally liable for the corporation’s breach of a consulting agreement entered into by the corporation and its former owner before forfeiture.
The distinction drawn in Beesley between types of debt to which the relation-back doctrine does and does not apply also applies here and places the judgment against Tryco squarely in the category of debts to which the relation-back doctrine does not apply. The amount of damages due to Robinson for Tryco’s violation of the FLSA was not, and could not be, specified at the time Robinson entered his employment contract with Tryco. Indeed, the amount of the enforceable debt was not, and could not be, determined until Robinson’s case was tried and the trial court had determined that the FSLA had been violated, that the violations resulted in a sum certain payable to Robinson in form of unpaid overtime compensation, and that the violation was willful, so that Tryco was not entitled to the good faith defense but must pay, as statutorily mandated damages, double the amount of compensation wrongfully withheld. See 29 U.S.C.A. §§ 207, 216,260; Míreles,
Like the defendants in Taylor, Cain, and Skrepnek, James and Sharon Dixon, as corporate officers of Tryco, committed acts for which they could be held liable if they were partners in a partnership. See Tex. Tax Code Ann. § 171.255(b); Tex. Bus. Orgs.Code Ann. §§ 152.204,152.210. They had both a fiduciary duty to perform their functions as corporate officers in good faith and to act in the best interest of the corporation, and they had a statutory duty to ensure that Tryco paid Robinson in accordance with federal FLSA requirements. They breached those common-law and statutory duties in an ongoing manner, and they retaliatorily fired Robinson for taking the logs on which his unpaid overtime was recorded. See Jonnet,
I, therefore, specifically disagree with the dissent’s construction of the requirements of section 171.255 for the imposition of personal liability on corporate officers for the debt of a defunct corporation, which goes even beyond the arguments made by appellants. The instant suit to enforce the judgment in the FLSA suit is not, as the dissent would have it, a suit to recover “unpaid overtime compensation” that became a legally enforceable obligation “on each respective payday or, with respect to the overtime that Robinson worked during the last work period, on a date shortly after his termination” — an amount that was clearly not a determined sum certain prior to the FSLA lawsuit. Dissent at 533. It is a suit to enforce against the officers of a defunct corporation a judgment for liquidated damages available only under a federal statute for the wrongful acts of those officers — a judgment entered immediately after the corporate charter was forfeited and the corporation denuded of its assets by those same corporate officers in the wake of the adverse jury verdict on which the judgment was rendered.
I would hold that the foregoing actions satisfy the requirements for imposing personal liability on James and Sharon Dixon
I would overrule the Dixons’ third issue, and I would affirm the trial court’s judgment holding James and Sharon Dixon personally liable under Tax Code section 171.255 for all damages awarded to Robinson in the judgment entered against Tryco in the FLSA suit.
Dissenting Opinion
dissenting.
I respectfully dissent in part from the majority’s judgment. The evidence presented in this case does not justify piercing the corporate veil, and therefore the Dix-ons and Crown Staffing should not be held liable on that basis for the judgment against Tryco. Thus, I would reverse the judgment with respect to Troy Dixon and Crown Staffing.
The judgment with respect to James and Sharon Dixon is partially supported on a different ground — the fact that they are responsible under the Texas Tax Code for those Tryco liabilities incurred after the corporation failed to file a franchise report or pay a franchise tax or penalty that was due. These liabilities include Robinson’s claims against Tryco for liquidated damages, attorney’s fees, expenses, and court costs. I would therefore partially affirm the judgment with respect to James and Sharon Dixon, but only for those elements of damages owed by Tryco to Robinson.
I. Piercing the corporate veil
In their first issue, the appellants assert that the single-business-enterprise theory is no longer a viable theory of recovery in Texas. They also contend that the evidence was legally and factually insufficient to support liability under an alter-ego theory. In Castleberry v. Branscum,
(1) when the fiction is used as a means of perpetrating fraud;
(2) where a corporation is organized and operated as a mere tool or business conduit of another corporation;
(3) where the corporate fiction is resorted to as a means of evading an existing legal obligation;
(4) where the corporate fiction is employed to achieve or perpetrate monopoly;
(5) where the corporate fiction is used to circumvent a statute; and
(6) where the corporate fiction is relied upon as a protection of crime or to justify wrong.
Castleberry,
The majority treats Castleberry’s theories to support disregarding the corporate fiction as “criteria,” and it concludes that five of the “criteria” favor holding James and Sharon Dixon and Crown Staffing jointly and severally liable for the judgment. Majority op. at 510. That approach is inconsistent with Castleberry, which specifically noted that the use of the corporate fiction as a sham to perpetrate a fraud is a separate grounds for imposing liability, apart from the allegation that a corporation has been used as a “mere tool or business conduit” of another entity, also known as the “alter ego” theory. Castleberry,
This court and other courts of appeals have understood the six Castleberry bases as separate, independent theories for disregarding the corporate fiction.
A. Single-business-enterprise theory
The majority acknowledges that the single-business-enterprise theory is not a viable theory under Texas law to impose one corporation’s obligations on another. SSP Partners,
B. Alter-ego theory
The evidence presented to the trial court was legally insufficient to support the judgment disregarding the corporate fiction based upon alter-ego theory. Texas law presumes that separate corporations are distinct entities. BMC Software Belgium, N.V. v. Marchand,
An entity or person does not become jointly liable for a corporation’s obligations “merely because they were part of a single business enterprise” or “merely because of centralized control, mutual purposes, and shared finances.” SSP Partners,
1. Relationship between the entities
Regarding the first consideration identified in SSP Partners, alter-ego theory requires a particular relationship between two entities or an- entity and an individual in order to disregard the corporate form: the corporation is organized and operated as a “mere tool or business conduit” of another corporation or individual. Castle-berry,
• the degree to which corporate formalities have been followed and cor*525 porate and individual property have been kept separately;
• the amount of financial interest, ownership, and control is maintained over the corporation; and
• the use of the corporation for personal purposes.
Id.
a. Tryco’s relationship to the Dixons
In determining whether unity exists between a corporation and an individual, we look to the following nonexclusive factors:
• payment of alleged corporate debts with personal checks or other commingling of funds;
• representations that the individual will financially back the corporation;
• diversion of company profits for the individual’s personal use;
• inadequate capitalization; and
• other failures to keep corporate and personal assets separate.
Am. Heritage, Inc. v. Nev. Gold & Casino, Inc.,
The majority relies on evidence that James and Sharon Dixon “neglected the corporate formality of paying Tryco’s corporate franchise tax.” Majority op. at 509. It is questionable whether the failure to observe “corporate formalities” is a factor that supports an alter-ego finding. It was mentioned as a factor in Castleberry, see
a closely held corporation owes unwanted obligations; it siphons off corporate revenues, sells off much of the corporate assets, or does other acts to hinder the on-going business and its ability to pay off its debts; a new business then starts up that is basically a continuation of the old business with many of the same shareholders, officers, and directors.
Id. at 275. However, Robinson did not plead the “sham to perpetrate a fraud” theory. The fact that the Dixons may have transferred Tryco’s assets to Crown Staffing in order to avoid a judgment does not prove alter ego, the theory that Robinson did plead. See id. at 272 (“[A] sham to perpetrate a fraud, is separate from alter ego.”).
b. Tryco’s relationship to Crown Staffing
With respect to Crown Staffing, the correct approach is to follow Castleberry’s example and consider several nonexclusive factors to determine whether the two corporations were not maintained as separate entities, including:
• common employees;
• common offices;
• centralized accounting;
• payment of wages by one corporation to another corporation’s employees;
• common business name;
• services rendered by the employees of one corporation on behalf of another corporation;
• undocumented transfers of funds between corporations; and
• unclear allocation of profits and losses between corporations.
SSP Partners,
The majority considers the following evidence as establishing that Crown Staffing was an alter ego of Tryco: “Crown Staffing had the same officers as Tryco, including James Dixon, its president; it took over the offices of Tryco at the same location; it used the same telephone numbers as Tryco; it shared common employees with Tryco; it performed the same temporary staffing services for essentially the same companies; and it was managed by the same managers.” Majority op. at 509. Assuming that all of the evidence that
However, the majority overlooks the absence of any evidence that Tryco and Crown Staffing ever existed and operated simultaneously. In fact, the available evidence tends to show the opposite. At the time of Edison’s testimony regarding his previous employment at Tryco, he worked for Crown Staffing. He did not testify that he was ever employed at both companies simultaneously. Robinson testified that when he called Tryco’s telephone number, he spoke to someone who identified himself as working for Crown Staffing. He did not testify that the employee indicated that he was a common employee of both companies. Robinson further testified that when he visited Tryco’s business location, he saw that the name had changed. He did not indicate that Tryco also advertised a presence at that location. In the absence of a showing that two corporations are going concerns at the same time, the evidence does not show that “a corporation is organized and operated as a mere tool or business conduit of another corporation.” Castleberry,
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The majority has impermissibly “blurred the distinction” among the various theories of liability identified in Castleberry by treating each basis “as a synonym for the entire doctrine of disregarding the corporate fiction.” See Castleberry,
2. Illegitimate use of limited liability
Furthermore, the majority has not identified legally sufficient evidence to support the second consideration in disregarding the corporate structure: “whether the entities’ use of limited liability was illegitimate.” Id. The majority recognizes that actual fraud must be proved in order to disregard the corporate fiction.
In Castleberry, a corporation called Texan Transfer was formed by Castleberry, Branscum, and Byboth for the purpose of operating a furniture moving business. Castleberry,
On at least three occasions, Branscum told others that he would deplete Texan Transfer of its assets to ensure that Cast-leberry was not paid on the promissory note. Id. at 274-75. After the buy-out, Elite Moving took more and more of Texan Transfer’s business. Id. at 274. The two companies operated out of the same location, and Texan Transfer allowed Elite Moving to use its trucks despite the lack of a written rental agreement or other records to show how much Elite Moving owed for such usage. Id. After Castleberry filed suit, Branscum and Byboth formed a third corporation which also operated out of the same location, they terminated a major contract that Texan Transfer had with a furniture company, and then they obtained for the third corporation the same contract. Id. at 274-75. The jury found that Branscum and his co-owner had used Texan Transfer as a sham to perpetrate a fraud on Castleberry, and the trial court rendered judgment that Branscum and Byboth were personally liable for the promissory note. Id. at 271.
The Supreme Court of Texas held that constructive fraud, not just actual fraud, was adequate to disregard the corporate fiction. See id. at 272-73. The Court explained the difference between the two types of fraud as follows:
Actual fraud usually involves dishonesty of purpose or intent to deceive, whereas constructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent' because of its tendency to deceive others, to violate confidence, or to injure public interests.
Id. at 273 (quoting Archer v. Griffith,
*528 We hold that this is some evidence of a sham to perpetrate a fraud. A jury could find that Byboth and Branscum manipulated a closely-held corporation, Texan Transfer, and formed competing businesses to ensure that Castleberry did not get paid. Castleberry had little choice but to sell his shares back to the corporation. While this evidence may be no evidence of intentional fraud, constructive fraud, not intentional fraud, is the standard for disregarding the corporate fiction on the basis of a sham to perpetrate a fraud.
The evidence is also legally insufficient to prove that the “actual fraud” in this case, whatever it may be, was undertaken primarily for the direct personal benefit of the Dixons or Crown Staffing. See Tex. Bus. Orgs.Code Ann. § 21.223(b) (permitting disregard of corporate fiction when actual fraud was done “primarily for the direct personal benefit” of the corporate owner or affiliate). The majority does not address what evidence it believes is relevant to this requirement for disregarding the corporate fiction. The record contains no evidence concerning what benefit, if any, the alleged transaction provided to the Dixons or Crown Staffing, such as a transfer of assets to a personal account or payment of a personal debt. In the absence of such evidence, the judgment disregarding the corporate separateness of Tryco and the other defendants cannot stand.
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The majority has substituted a “subjective perception of unfairness,” SSP Partners,
I would hold that the evidence was legally insufficient to hold the Dixons and Crown Staffing liable for Tryco’s debts on
II. Loss of corporate privileges
Although not addressed by the majority opinion because of their resolution of the veil-piercing claim, there was a separate basis alleged at trial to hold James and Sharon Dixon liable for the judgment against Tryco.
In response, Robinson argues that “in this matter the debts and penalties incurred were part of a statutory scheme and the penalty imposed was permissive, thus no debt existed until the judgment was entered after the forfeiture.” He relies on Cain v. State,
If the corporate privileges of a corporation are forfeited for the failure to file a report or pay a tax or penalty, each director or officer of the corporation is hable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due and before the corporate privileges are revived.
Tex. Tax Code Ann. § 171.255(a). In this provision, the meaning of “create” is “to bring into existence something which did not exist,” while “incurred” means “brought on,” “occasioned,” or “caused.” See Schwab v. Schlumberger Well Surveying Corp.,
The original judgment reflects that Robinson was awarded $58,349.00 for unpaid wages, $58,349.00 for “willful violation of the Fair Labor Standards Act,” $16,558.75 for attorney’s fees, $603.00 for expenses, and $457.00 for costs of court. Because each of these amounts was assessed for a different purpose, each must be considered separately to determine the dates upon which they met all the conditions of a debt for which a corporate director or officer may be held liable under Section 171.255. Each part of the award became a debt for the purposes of Section 171.255 when it was (1) a certain amount of money (2) created or incurred as (3) a legally enforceable obligation (4) which must be performed or paid within an ascertainable period of time or on demand. See Tex. Tax. Code Ann. § 171.255; Act of May 30,1987, 70th Leg., R.S., ch. 324, § 1, 1987 Tex. Gen. Laws 1734,1735.
Tryco’s liability to Robinson arose out of its failure to pay him overtime compensation pursuant to the federal Fair Labor Standards Act. See 29 U.S.C. § 207(a)(2) (providing that non-exempt employee working longer than 40 hours per week shall receive “compensation for his employment in excess of [40 hours] specified at a rate not less than one and one-half times the regular rate at which he is employed”). The “penalties” section of the FLSA provides, in relevant part:
*532 Any employer who violates the [overtime pay provision] of this title shall be liable to the employee or employees affected in the amount of their ... unpaid overtime compensation ... and in an additional equal amount as liquidated damages.... An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.... The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.
29 U.S.C. § 216(b). In interpreting the FLSA’s provisions, we follow the relevant precedents of the United States Supreme Court and the Supreme Court of Texas, and we may also look to the precedents of other federal courts for guidance. Penrod Drilling Corp. v. Williams,
A. Unpaid overtime compensation
As to the $58,349.00 award for unpaid overtime compensation, the original judgment implies — and the parties apparently assume — that Robinson, who worked as a van driver for Tryco, was a non-exempt employee who benefited from the overtime compensation provisions of the FLSA.
By state statute, Tryeo was required to pay non-exempt employees like Robinson at least twice a month. See Tex. Lab.Code Ann. § 61.011(b) (West 2006); see also Igal v. Brightstar Info. Tech. Grp., Inc.,
B. Liquidated damages
Robinson’s other award of $58,349.00 was “for willful violation of the Fair Labor Standards Act.” For employers that violate the FLSA’s overtime requirements, Section 216 prescribes additional liquidated damages equal to the amount of the unpaid overtime compensation. See 29 U.S.C. § 216(b). Such liquidated damages are the norm and have been characterized as “mandatory.” See, e.g., Martin v. Ind. Mich. Power Co.,
[I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title.
29 U.S.C. § 260. This provision means that “[i]f the district court finds that [the] employer’s action which violated the FLSA was taken in good faith, which good faith was supported by reasonable grounds for believing that the actions complied with the FLSA, it may choose not to award liquidated damages.” Lee,
C. Attorney’s fees and other costs
As to the attorney’s fees, expenses, and other costs awarded to Robinson, the FLSA provides such a recovery to a prevailing employee. See 29 U.S.C. § 216(b) (“The court in such action shall ... allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”). In contrast to the FLSA’s authorization for liquidated damages, this type of award is truly mandatory. See Sahyers v. Prugh, Holliday & Karatinos, P.L.,
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I would sustain James Dixon and Sharon Dixon’s third issue, insofar as the judgment orders that they are liable for Robinson’s unpaid overtime compensation. I would overrule their issue in all other respects, insofar that the judgment orders that they are liable for Robinson’s liquidated damages, attorney’s fees, expenses, and court costs.
.See, e.g., Hideca Petroleum Corp. v. Tampimex Oil Int'l, Ltd.,
. Castleberry v. Branscum,
. The majority concludes that the “un-refuted evidence establishes that Tiyco and Crown Staffing were both alter egos of Sharon and James Dixon and part of a single business enterprise for the purposes of piercing the corporate veil under former Business Corporations Act article 2.21 and under the current provision, Business Organizations Code section 21.223.” Majority op. at 509. Insofar as the majority suggests that the single-business-
. See Howell v. Hilton Hotels Corp.,
. After Castleberry, legislation was enacted to provide that a showing of constructive fraud does not suffice to disregard the corporate structure. This was accomplished by enacting former Article 2.21 of the Texas Business Corporation Act, which has since been recodified as Section 21.223 of the Texas Business Organizations Code. See Act of May 12, 1989, 71st Leg., R.S., ch. 216, § 1, 1989 Tex. Gen. Laws 974, 974-75 (amended 1993, 1997, 2003, 2007) (former Business Corporations Act Article 2.21); Act of May 29, 2003, 78th Leg., R.S., ch. 182, § 1, 2003 Tex. Gen. Laws 267, 427 (current version at Tex. Bus. Orgs. Code Ann. § 2.223); SSP Partners v. Gladstrong Invs. (USA) Corp.,
. See Gollin v. Hoard Gainer Indus. Co., No. 01-03-00435-CV,
. Robinson did not plead Section 171.255 of the Tax Code as basis for recovery against the other defendants, Troy Dixon or Crown Staffing. Accordingly, insofar as the judgment against them might have been premised on this theory of recovery, the judgment was erroneous. See TexR. Civ. P. 301 ("The judgment of the court shall conform to the plead-ings_"). Moreover, there was no evidence that Troy Dixon or Crown Staffing was ever an officer or director of Tiyco.
. The parties apparently assume that Tryco forfeited its corporate privileges a few weeks before Robinson obtained the judgment in the original suit, on August 22, 2003, and that under Section 171.255 James and Sharon Dixon became liable for Tryco’s debts created or incurred after that date. However, both the record and the law refute their assumption.
At trial, Robinson presented an order of the Secretary of State, dated August 22, 2003, forfeiting Tryco's certificate of authority, and the trial court took judicial notice of the order. The order states that Tiyco "has not revived its forfeited privileges within 120 days after the date that the corporation privileges were forfeited.” By logical ¡in-plication of this finding, the order reflects that Tryco's corporate privileges must have been forfeited at least 120 days before August 22.
Moreover, the date that the corporate privileges were forfeited was not likely the same date on which the report, tax, or penalty occasioning the forfeiture had been due, see Tex. Tax Code Ann. § 171.255(a) (West 2008), as the statutory procedures authorizing forfeiture in such circumstances require that the Comptroller of Public Accounts provide the corporation with notice at least 45 days before the forfeiture. See Tex. Tax Code Ann. §§ 171.251, 171.256. The directors or officers of a corporation become liable for the corporation’s debts on the date after the report, tax, or penalty is due but not filed or paid. See Tri-State Bldg. Specialties, Inc. v. NCI Bldg. Sys., L.P.,184 S.W.3d 242 , 251 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (holding that official list of corporations whose corporate privileges were suspended is not proof of the "relevant date” under Section 171.255 for when report, tax, or penalty was due); Dae Won Choe v. Chancellor, Inc.,823 S.W.2d 740 , 743 (Tex.App.Dallas 1992, no writ) (holding that personal*531 liability of corporate director or officer starts after the date on which corporation was required to file a report or pay a tax or penalty that was due).
. The FLSA provides for classes of employees who are exempt from the overtime pay provision. See 29 U.S.C. § 213(a), (b) (listing classes of exempt employees); Cowart v. Ingalls Shipbuilding, Inc.,