metromedia-restaurant-services-inc-s-a-restaurant-corporation-and-steak ( 2006 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00006-CV
Metromedia Restaurant Services, Inc.; S & A Restaurant Corporation;
and Steak & Ale of Texas, Inc., Appellants
v.
Carole Keeton Strayhorn, Comptroller of Public Accounts of The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
GN401090, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
OPINION
This case involves the requirements to be a “holder” under the Texas statutes
governing unclaimed personal property. It also presents the question of whether a civil judgment
may be taken against a nonparty based on the theory that the nonparty is part of a single business
enterprise with a named party. Appellants Metromedia Restaurant Services, Inc., S & A Restaurant
Corporation, and Steak & Ale of Texas, Inc. appeal the district court’s judgment assessing over
$500,000 in liability against them for failure to remit unclaimed employee wages to the Comptroller
pursuant to Chapter 74 of the Texas Property Code. Metromedia argues that it cannot be held liable
for failure to remit the unclaimed wages because (1) there is insufficient evidence to establish that
it is a “holder” of the unclaimed property as required by property code section 72.001, and (2) the
Comptroller failed to plead a corporate veil-piercing theory, precluding any recovery based on such
a theory. S & A Restaurant Corporation and Steak & Ale of Texas, Inc. argue that they cannot be
held liable in this case because they were not parties to the lawsuit in the trial court. We agree with
each of these points and reverse the judgment.
Facts and Procedural Background
Steak & Ale of Texas, Inc. and Metromedia Restaurant Services, Inc. are wholly
owned subsidiaries of S & A Restaurant Corporation. S & A Restaurant Corporation is a holding
company that owns a variety of corporations operating restaurants in a number of different states.
Steak & Ale of Texas operates Steak & Ale restaurants in Texas. Metromedia provides home office
administrative services to both S & A Restaurant Corporation and Steak & Ale of Texas, keeps
books and records, and acts as a paymaster for certain employee payments for both entities.
From time to time, various employees of Steak & Ale of Texas would fail to claim
their wages. After a period of three years, these unclaimed wages were reported and delivered to the
Comptroller.1 The unclaimed property reports were made and the funds were delivered to the
Comptroller on an annual basis by S & A Restaurant Corporation, the parent company of Steak &
Ale of Texas. These reports were prepared by employees of Metromedia on behalf of S & A
Restaurant Corporation. In 2003, the Comptroller conducted an audit of the amounts reported and
remitted by S & A Restaurant Corporation. In the course of the audit, the Comptroller reviewed
1
During the time period relevant to this case, all personal property (including unclaimed
wages) was presumed abandoned after three years. See Tex. Prop. Code Ann. § 72.101 (West 1995).
The statute was amended effective January 11, 2003, to provide that unclaimed wages are presumed
abandoned after one year.
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financial records of S & A Restaurant Corporation and Steak & Ale of Texas. This review took
place at the offices of Metromedia and the Comptroller was provided access to the books and records
of S & A Restaurant Corporation and Steak & Ale of Texas by Metromedia employees. The audit
revealed that for several years S & A Restaurant Corporation had retained a $15 “processing fee”
for each unclaimed check from the funds it was required to deliver to the Comptroller. There is no
provision in Chapter 74 for the retention by a holder of any portion of the unclaimed property, and
appellants acknowledge that the retention of the processing fees was improper.
In seeking to recover the improperly retained funds, however, the Comptroller did not
assess S & A Restaurant Corporation—the entity that had delivered the funds to the Comptroller and
reported itself as the “holder” of the funds. Nor did the Comptroller assess Steak & Ale of Texas,
the employer. Instead, the Comptroller assessed Metromedia. Metromedia disputed the assessment
and filed this action in district court seeking declaratory relief. The Comptroller answered and filed
a counterclaim against Metromedia to compel delivery of the improperly retained funds and for
statutory penalties. The Comptroller did not file a claim against S & A Restaurant Corporation or
Steak & Ale of Texas. Neither entity was joined as a party nor entered an appearance in the district
court.
Prior to trial, the Comptroller sought realignment of the parties and the parties were
realigned by agreed order. Metromedia, now the defendant, answered the Comptroller’s claims. In
its answer, Metromedia asserted, among other things, that it was not a holder of the property in
question and that “other entities have entered into agreements with the Comptroller to remit the
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unclaimed property identified in the Audit Report.” The Comptroller proceeded to trial, electing not
to join either S & A Restaurant Corporation or Steak & Ale of Texas as a party.
At trial, the Comptroller took the position that Metromedia, S & A Restaurant
Corporation, and Steak & Ale of Texas were all holders of the unclaimed property at issue. The
Comptroller also claimed that Metromedia, the only named defendant, was part of a single business
enterprise with S & A Restaurant Corporation and Steak & Ale of Texas. The Comptroller argued
that if the jury found all three entities were part of a single business enterprise, judgment could be
granted against any one or all of the entities regardless of whether they had been joined as parties to
the suit.
The jury found that all three entities were holders of the unclaimed property. The jury
also found that Metromedia “operated as a single business enterprise” with both S & A Restaurant
Corporation and Steak & Ale of Texas during the relevant time periods. Based on these jury
findings, the district court entered judgment against all three appellants, jointly and severally, for the
entire amount of the funds that had been improperly retained as well as statutory penalties and
attorneys’ fees.
Metromedia filed its notice of appeal in the district court and pursued this appeal.
S & A Restaurant and Steak & Ale of Texas did not appear in the district court, electing to appear
in this lawsuit for the first time in this Court.
The Judgment against S & A Restaurant Corporation and Steak & Ale of Texas
In no case shall judgment be rendered against any defendant unless there has been
service of process, acceptance or waiver of process, or an appearance by the defendant. Tex. R. Civ.
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P. 124; Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). It is undisputed that S & A
Restaurant Corporation and Steak & Ale of Texas were not served with process, did not accept or
waive process, and did not appear in the trial court. It is also essential to due process in our civil
justice system that judgment may not be granted in favor or against a party not named in the lawsuit.
Exito Electronics Co., Ltd., v. Trejo, 166 S.W.3d 839, 852 (Tex. App.—Corpus Christi 2005, no pet.
h.); Fuqua v. Taylor, 683 S.W.2d 735, 738 (Tex. App.—Dallas 1984, writ ref’d n.r.e.); Texaco, Inc.
v. Wolfe, 601 S.W.2d 737, 742 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). It is
undisputed here that the Comptroller did not name either S & A Restaurant Corporation or Steak &
Ale of Texas as parties in this lawsuit.
The Comptroller argues that there was no need to name all of the separate entities in
this lawsuit because the jury found Metromedia operated as a single business enterprise with both
S & A Restaurant Corporation and Steak & Ale of Texas. The Comptroller’s view is that the jury
finding essentially makes all of the entities “one and the same.” Therefore, under this view, naming
any member of an alleged single business enterprise as a defendant has the legal effect of naming
all members. The Comptroller suggests this would be true even though the issue of whether a single
business enterprise exists among the named and unnamed parties has not yet been litigated or
resolved. However, corporate veil-piercing theories such as alter ego or single business enterprise
cannot and do not abrogate the requirements of due process in our judicial system.2 Parties must still
2
We do not reach and express no opinion regarding the availability of, viability of, or
circumstances under which a “single business enterprise” theory may be used as a means of piercing
the corporate veil in Texas.
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be afforded notice and an opportunity to appear and defend themselves before being subjected to
civil liability. See Tex. R. Civ. P. 124; Mapco, 817 S.W.2d at 687.
S & A Restaurant Corporation and Steak & Ale of Texas could very well want an
opportunity to be heard on the issue of whether they are involved in a single business enterprise with
Metromedia. They may have defenses that are different from the defenses that best serve
Metromedia or that Metromedia has the ability or standing to present. Even if these parties had
identical interests and identical defenses, they must—as a matter of due process—be afforded an
opportunity to evaluate the claims made by an adverse party and decide for themselves how to
defend. Parties with seemingly identical interests can have significant differences in how to protect
those interests and how to litigate disputes.
In addition, simply because two entities or two persons are alleged to be members of
some sort of joint enterprise, they will not necessarily have identical or even similar interests in a
dispute involving the joint enterprise. In some circumstances, one member of a potentially liable
group could have an interest not only in ignoring the defense of other alleged jointly liable members,
but in affirmatively seeking to have other members held liable. In such a situation, the appearance
of the named member would certainly not suffice for the defense of unnamed members. Thus, the
appearance of one party alleged to be part of a larger group of related persons or entities cannot
substitute for the appearance and defense of other alleged members of the group.
If the rule were otherwise, a plaintiff could sue a small subsidiary of any major
corporation, never name the parent company in the suit, litigate with the subsidiary the issue of
whether the parent is in a single business enterprise with the subsidiary, and then obtain a judgment
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against the parent. The same would hold true for an individual alleged to be the alter ego of a
corporate entity and vice versa. A plaintiff could litigate the question of whether the corporation is
liable to the plaintiff without ever joining the corporation or litigating the issue with the corporation.
The plaintiff could also litigate whether an individual is liable for the acts of a corporation without
ever suing the individual. Such a procedure is not consistent with due process.
Even when a plaintiff is alleging that two separate parties are to be treated as one
under the law, a plaintiff is required to name and serve each party sought to be held liable. Each is
entitled to have the opportunity to appear, be heard, and defend. This principle has been applied in
the context of other joint liability theories such as partnership, agency, civil conspiracy, etc. See
Wynne v. Adcock Pipe and Supply, 761 S.W.2d 67, 70 (Tex. App.—San Antonio 1988, writ denied)
(judgment against principal cannot stand where plaintiff joins only agent in the lawsuit individually);
Western Grocery Co. v. K. Jata & Co., 173 S.W. 518, 518 (Tex. Civ. App.—El Paso 1915, no writ)
(judgment cannot stand against a partner who was never a party to suit). The principle is no different
when applied to corporate veil-piercing theories being used to establish joint liability.
In this case, judgment was entered against two entities that were not defendants in the
lawsuit, were not named or joined, and had never appeared. We hold, therefore, that S & A
Restaurant Corporation and Steak & Ale of Texas were never properly before the court, that the
district court was without jurisdiction to enter judgment against them, and that the judgment against
them is void.
The Comptroller also argues that S & A Restaurant Corporation and Steak & Ale of
Texas did not file notices of appeal and, therefore, are not entitled to more favorable relief in this
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Court than they received in the trial court without a demonstration of just cause. Tex. R. App. P.
25.1(c). We have found that the district court was without jurisdiction to enter judgment against S
& A Restaurant Corporation and Steak & Ale of Texas. Consequently, the judgment is void and the
error is fundamental. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). Under these
circumstances, there is just cause to address the error.
“Holder” status of Metromedia
Chapter 74 of the property code requires a holder of property belonging to someone
else that is unclaimed and presumed abandoned to deliver the abandoned property to the Comptroller
for safekeeping. See Tex. Prop. Code. Ann. §§ 74.301-.304 (West Supp. 2005); State v. Snell, 950
S.W.2d 108, 112 (Tex. App.—El Paso 1997, no pet.). Holders of unclaimed property must report
and deliver the property to the Comptroller on an annual basis. See Tex. Prop. Code Ann. § 74.301.
A holder of unclaimed property under section 72.001 is a person who is (1) in possession of property
that belongs to another, (2) a trustee, or (3) indebted to another on an obligation. Id. § 72.001 (West
Supp. 2005). The Comptroller alleges that Metromedia is a “holder,” as defined in Section 72.001,
of the $15 per check processing fee retained from the unclaimed funds reported and delivered to the
Comptroller by S & A Restaurant Corporation. The Comptroller does not claim Metromedia was
a trustee of the unclaimed property. Therefore, the Comptroller had the burden of proving that
Metromedia is either (1) in possession of the retained funds, or (2) indebted to the employees of
Steak & Ale of Texas for the retained funds. See id.
Metromedia contends that there is no evidence to establish that it is a “holder” of the
unclaimed wages in question as required by the property code. See id. Courts will sustain a no-
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evidence point of error when: (1) the record discloses a complete absence of evidence of a vital fact;
(2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla;
or (4) the evidence establishes conclusively the opposite of the vital fact. Marathon Corp. v. Pitzner,
106 S.W.3d 724, 727 (Tex. 2003). More than a scintilla of evidence exists when the evidence
supporting the finding as a whole “rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711
(Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). If the
evidence of a fact is so weak as to do no more than create a mere surmise or suspicion of its
existence, the legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896
S.W.2d 179, 183 (Tex. 1995).
The evidence in this case established that the restaurants operating as subsidiaries of
S & A Restaurant Corporation would deposit the revenue from their sales each day into their
respective bank accounts. At the end of each day, the funds from all of these accounts would be
electronically transferred to a single “concentrated account” owned and controlled by S & A
Restaurant Corporation. Funds would then be transferred from this concentrated account to any
subsidiary’s account upon which checks were drawn when the checks were presented for payment.
This process of transferring out all deposits and transferring in only the amounts necessary to cover
items that were presented for payment occurred daily. Thus, the subsidiary accounts were “zero-
balance accounts”—accounts that showed a zero balance at the close of each business day.
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Metromedia owned such a zero-balance account. There was testimonial evidence that
at least some of the payroll checks that went unclaimed by Steak & Ale of Texas employees were
written on this Metromedia account. There was also evidence showing that if a Steak & Ale of
Texas employee lost a check written on the Metromedia account, the lost check would be reported
to Metromedia and Metromedia would issue another check. In addition, the Comptroller points to
evidence that Metromedia employees calculated the amount of unclaimed property due to be
delivered to the Comptroller for S & A Restaurant Corporation entities operating in Texas (deducting
the $15 processing fee), requested checks be issued by S & A Restaurant Corporation for these
amounts, mailed the S & A Restaurant Corporation checks to the Comptroller, and kept the records
relating to the reporting and delivery of the unclaimed property. The Comptroller argues that this
is some evidence that Metromedia is a holder of the retained funds at issue. We disagree.
Chapter 74 requires proof that the person being compelled to deliver unclaimed
property is either in possession of the property or indebted to another for the property. Tex. Prop.
Code Ann. § 72.001. Evidence that Metromedia handled payroll responsibilities for S & A
Restaurant Corporation or its subsidiaries and that Metromedia provided administrative services with
respect to the reporting of the unclaimed wages is not evidence that Metromedia is in possession of
the wages or that Metromedia is indebted to the employees for the wages. Evidence to the effect that
funds for claimed wages, i.e. funds for checks presented for payment, would pass through the
Metromedia account is not evidence that Metromedia currently has or ever had in its possession
funds representing the unclaimed wages of Steak & Ale of Texas employees.
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There was ample evidence that S & A Restaurant Corporation was a holder and in
possession of the funds in question. Indeed, this fact was undisputed. S & A Restaurant Corporation
reported the unclaimed wages to the Comptroller, paid the unclaimed wages (minus the processing
fee) to the Comptroller, admitted that the monies that were to fund the unclaimed employee checks
were to come out of the concentrated account owned by S & A Restaurant Corporation, and reported
itself to the Comptroller as the “holder.” Nevertheless, the Comptroller elected not to pursue a claim
against S & A Restaurant Corporation.
The undisputed evidence in the record conclusively establishes that Metromedia was
never in possession of funds from the S & A Restaurant Corporation concentrated account for any
check that was not presented for payment. The wages at issue in this case are those associated with
checks that were never presented for payment and went unclaimed. There is no evidence that
Metromedia has ever been or is currently in possession of the unclaimed wages of Steak & Ale of
Texas employees.
The Comptroller also argues that, even if Metromedia is not in possession of the
unclaimed wages in question, Metromedia can be held liable as a holder under Chapter 74 under the
theory that it is indebted to the employees who did not negotiate checks written on the Metromedia
account. The evidence offered by the Comptroller to support this argument is testimony that some
of the checks that went unclaimed were written on the Metromedia zero-balance account. This,
standing alone, does not tend to prove that Metromedia is indebted to the employees of Steak & Ale
of Texas for their wages. It is evidence only that Metromedia issued a negotiable instrument payable
to an individual who did not negotiate it. It does not tend to show what entity is indebted to the
employee.
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The evidence was undisputed and conclusive that the wages in question were for
employees of Steak & Ale of Texas, not employees of Metromedia. The Comptroller offered no
evidence that Metromedia is indebted to employees of Steak & Ale of Texas who have failed to
claim wages for more than three years. In addition, the checks bore the notation that they were void
after either 90 or 180 days. Thus, Metromedia could have no obligation to payees on void checks
unclaimed for three or more years even if the original check could be viewed as creating a debt.
Based on this record, we hold that there is no evidence that Metromedia is a holder of the unclaimed
wages at issue.
The Single Business Enterprise Theory and Metromedia
The Comptroller contends that even if Metromedia is not a holder under Chapter 74,
it may be held responsible for the liability of S & A Restaurant Corporation and Steak & Ale of
Texas because the jury found Metromedia to be in a single business enterprise with S & A
Restaurant Corporation and Steak & Ale of Texas. Metromedia argues that the Comptroller did not
plead this theory of liability and it should not have been submitted to the jury. We agree.
Texas follows a “fair notice” pleading standard, which looks to whether the opposing
party can ascertain from the pleadings the nature and basic issues of the controversy and what
testimony will be relevant at trial. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896
(Tex. 2000). The Comptroller’s First Amended Petition included the following statement upon
which the Comptroller relies for submitting the single business enterprise theory to the jury:
Defendant is either the assumed name of Steak & Ale of Texas, or the employer of
restaurant staff at Steak & Ale of Texas restaurants, or the payroll services company
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for Steak & Ale of Texas. In any of those capacities, Defendant is a responsible
holder under the Unclaimed Property Act.
This pleading does not give fair notice that the Comptroller was seeking to impose
liability on Metromedia based on the theory that Metromedia was engaged in a single business
enterprise with Steak & Ale of Texas and S & A Restaurant Corporation. It does not refer to the
single business enterprise theory nor does it use words from which a reasonable person could infer
that the single business enterprise theory is the basis of the complaint. It fails to mention S & A
Restaurant Corporation—the alleged corporate parent and controller of the single business
enterprise—at all. It alleges only that Metromedia is either an assumed name for Steak & Ale of
Texas, the employer of Steak & Ale of Texas employees, or the payroll services company for Steak
& Ale of Texas. It then asserts that in any of these capacities Metromedia is a holder under the
unclaimed property statutes. It does not give fair notice that the Comptroller will seek to hold
Metromedia responsible under a corporate veil-piercing theory for the unclaimed property liability
of other holders such as Steak & Ale of Texas or S & A Restaurant Corporation.
Particular words such as “single business enterprise” do not have to be used for a
pleading to give fair notice in this context. However, a party attempting to impose liability by
piercing the corporate veil of a defendant must plead something that will tell the defendant that it
is facing potential liability on such a basis. Otherwise, the defendant will not have notice of the
nature and basic issues of the controversy that it is facing. Horizon/CMS Healthcare Corp., 34
S.W.3d at 896. In this case, the Comptroller pleaded only that Metromedia is an assumed name for
Steak & Ale of Texas or the employer of the Steak & Ale of Texas’s employees or the payroll
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company for Steak & Ale of Texas. This does not communicate that the Comptroller will attempt
to hold Metromedia responsible by challenging the corporate separateness of all of the entities and
then proving that S & A Restaurant Corporation or Steak & Ale of Texas are holders. It certainly
does not communicate anything about potential liability for Metromedia based on the “holder” status
of S & A Restaurant Corporation.
The Comptroller argues that even if the single business enterprise theory was not
pleaded, it was tried by consent. However, Metromedia objected to the inclusion of the single
business enterprise theory in the jury charge prior to submission of the charge to the jury. An
objection, on the record, prior to the submission of the charge to the jury precludes trial by consent.
Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798, 803 (Tex. App.—Houston [14th Dist.] 1996, writ
denied). Therefore, since the single business enterprise theory was not pleaded or tried by consent,
it should not have been submitted to the jury and cannot be the basis for a judgment against
Metromedia as an imputed holder standing in the shoes of S & A Restaurant Corporation or Steak
& Ale of Texas. See Tex. R. Civ. P. 301; Mapco Inc. v. Carter, 817 S.W.2d 686, 688 (Tex. 1991)
(judgment could not be based on alter ego, piercing the corporate veil, or agency theory without
pleadings to support these theories); Texas Indus., 919 S.W.2d at 803 (a trial court may not submit
a question to the jury unless it is supported by the pleadings or tried by consent).
Attorneys’ Fees and Statutory Penalties
Since we find that there is no basis to hold Metromedia liable under the unclaimed
property statutes in this case, there is no basis for the imposition of statutory penalties on
Metromedia or an award of attorneys’ fees in favor of the Comptroller pursuant to property code
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section 74.709. Consequently, the award of statutory penalties and attorneys’ fees in favor of the
Comptroller is reversed.
In addition, because the trial court entered judgment against Metromedia in this
matter based on a finding of liability under the unclaimed property statutes, the trial court did not
reach or consider Metromedia’s request for an award of attorneys’ fees under the Declaratory
Judgments Act. Therefore, we remand this cause for a determination of whether attorneys’ fees are
available to either Metromedia or the Comptroller under the Declaratory Judgments Act.
Conclusion
We reverse the judgment of the district court as to all appellants, hold that the
judgment against S & A Restaurant Corporation and Steak & Ale of Texas is void, and render a take-
nothing judgment in favor of Metromedia. We also remand to the trial court the issue of whether
attorneys’ fees should be awarded to either Metromedia or the Comptroller pursuant to the
Declaratory Judgments Act.
G. Alan Waldrop, Justice
Before Justices B. A. Smith, Patterson and Waldrop
Reversed and Rendered in Part; Reversed and Remanded in Part
Filed: February 10, 2006
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