Stanley Thaw v. Leslie Schachar, MD ( 2011 )

NO. 07-10-0027-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 26, 2011
STANLEY THAW, APPELLANT
v.
LESLIE SCHACHAR, M.D., APPELLEE
FROM THE 158TH DISTRICT COURT OF DENTON COUNTY;
NO. 2008-60134-393; HONORABLE DOUGLAS ROBISON, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Stanley Thaw, appeals from the entry of a judgment rendered in favor
of Appellee, Leslie Schachar, M.D., following separate summary judgment proceedings
on Schachar's original action seeking enforcement of Thaw's contractual guaranty
obligations on a note and lease agreement, and Thaw's counterclaim for breach of
fiduciary duty, conversion, equitable accounting, and violation of corporate bylaws. In
two points of error, Thaw asserts the trial court erred by granting (1) Schachar's motion
for partial summary judgment on his collection claims and (2) Schachar's motion for
summary judgment on Thaw's counterclaims. We affirm.
Background
In June 2002, Schachar and Thaw formed Theramedics, Inc. (Theramedics), a
medical service company to provide contracted rehabilitation Medicare and Medicaid
services to health care organizations and hospitals. Schachar and Thaw served as
Theramedics's initial board of directors and co-owned the business as shareholders and
officers, Secretary-Treasurer and President, respectively. In connection with its
operation, Theramedics entered into a series of loan transactions and equipment leases
for which various lenders and lessors required personal guaranties which were given by
Schachar and Thaw.
Two instruments signed by Schachar and Thaw in their individual capacities as
guarantors were (1) a note and security agreement with Guaranty National Bank dated
December 24, 2002, in the principal amount of $360,000, for the purchase of
therapeutic heart equipment (GNB note) and (2) a lease agreement dated March 3,
2003, between Theramedics and Banc One Leasing Corporation, for a hyperbaric
oxygen therapy system (Banc One Lease).
In June 2006, Theramedics defaulted on the GNB Note and Banc One Lease,
ceased its business activities, and was dissolved. Schachar personally paid off the
balances due on the GNB Note and the Banc One Lease. GNB assigned its Note and
Thaw's guaranty to Schachar. JP Morgan Chase Bank, N.A., the successor in interest
to Banc One Leasing, did the same with respect to the Banc One Lease. Schachar
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subsequently presented the notes and guaranties to Thaw and demanded payment.
Thaw refused to pay.
In his Third Amended Petition filed in October 2008, Schachar asserted a cause
of action against Thaw, based on his individual guaranty of the GNB Note and Banc
One Lease. By his suit, Schachar sought recovery of Thaw's pro rata share of the debt
settlement on the two instruments. Schachar also asserted claims for equitable
subrogation, promissory estoppel and declaratory relief.
In his First Amended Original Answer, Thaw offered up a general denial and, in
answer to Schachar's claim for equitable subrogation, asserted an affirmative defense
that Schachar had acted in equity with "unclean hands." In June 2009, Thaw also filed
a counterclaim asserting Schachar breached a fiduciary duty owed to Theramedics and
to Thaw as a shareholder, violated Theramedics's corporate bylaws, converted
Theramedics's property and sought an accounting of all corporate funds and assets in
Schachar's possession "for the purposes of any claim in equity."
Motion for Summary Judgment on Schachar's Contract Claims
In March 2009, Schachar filed a second motion for partial summary judgment on
his claims related to Thaw's guaranties. Schachar's summary judgment evidence
consisting of affidavits, business records and relevant documents conclusively
established the existence of the debt instruments and associated guaranties, Thaw's
signature on each guaranty, Schachar's ownership of the guaranties, the balance
remaining due on the GNB Note and Banc One Lease, the fact that demand had been
made on Thaw to pay the amounts due on his guaranties, and that Thaw failed to do
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so.1 Schachar also supplied to Thaw a valuation conducted by an independent third-
party, Rosen Systems, Inc., of any Theramedics's assets in Schachar's possession.2
In his response to Schachar's motion, Thaw did not dispute this evidence.
Rather, Thaw's response asserted there were disputed facts precluding summary
judgment in Schachar's favor on claims for equitable subrogation, unjust enrichment
and restitution. In a supplemental response, Thaw also asserted Schachar improperly
handled Theramedics's business and demanded that Schachar make a demand and
presentment under the Texas Uniform Commercial Code which Schachar did.
In August 2009, the trial court ruled in Schachar's favor and awarded Schachar
money damages and attorney’s fees. Thereafter, Schachar filed an unopposed notice
of partial non-suit regarding his action for equitable subrogation and, in September, the
trial court issued an order of non-suit of Schachar's cause of action for equitable
subrogation only without prejudice.
Motion for Summary Judgment on Thaw's Counterclaim
In October 2009, Schachar filed a motion for summary judgment on Thaw's
counterclaims. In essence, Schachar asserted Thaw's claims belonged to Theramedics
and Thaw lacked standing either as a corporate officer or shareholder to bring the
1
To obtain summary judgment on a guaranty agreement, a party must conclusively prove: (1)
the existence and ownership of the guaranty contract, (2) the performance of the terms of the
contract by plaintiff, (3) the occurrence of the condition on which liability is based, and (4)
guarantor's failure or refusal to perform the promise. Barclay v. Waxahachie Bank & Trust Co.,
568 S.W.2d 721, 723 (Tex.Civ.App.--Waco 1978, no writ).
2
Certain of Theramedics’s assets were accounted for through liquidation in sheriff's sales. Thaw
does not contest any valuation of Theramedics’s assets.
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counterclaims. Schachar also asserted there was no evidence of any bylaws being
adopted by Theramedics, the two year statute of limitations on Thaw's claim for
conversion had run,3 the accounting claim was moot because Schachar had non-suited
his claim for equitable subrogation and Schachar had supplied undisputed evidence in
the prior summary judgment proceedings valuing Theramedics's assets in his
possession that constituted collateral for the corporation's notes and guaranties. In his
response, Thaw asserted standing based on his corporate office and status as a
shareholder as well as a guarantor of Theramedics's contractual obligations. He
contended that Schachar was asserting ownership of the GNB Note and Banc One
Lease through Theramedics and the statute of limitations on the conversion claim was
tolled because Schachar absconded with the corporation's assets.
In November 2009, the trial court granted summary judgment in Schachar's favor
on Thaw's counterclaim and ordered that Thaw take nothing. The same day the trial
court issued its final judgment awarding money damages, attorney’s fees and costs to
Schachar. This appeal followed.
Discussion
Standard of Review
We review the trial court=s summary judgment de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing a summary judgment, we
apply well-established standards which are: (1) the movant for summary judgment has
3
See Tex. Civ. Prac. & Rem. Code § 16.003(a) (West Supp. 2010).
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the burden of showing that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law; see Tex. R. Civ. P. 166a(c); (2) in deciding
whether there is a disputed material fact issue precluding summary judgment, evidence
favorable to the non-movant will be taken as true; and (3) every reasonable inference
must be indulged in favor of the non-movant and any doubts resolved in its favor. Shah
v. Moss, 67 S.W.3d 836, 842 (Tex. 2001); Am. Tobacco Co. v. Grinnell, 951 S.W.2d
420, 425 (Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49
(Tex. 1985)). An appellate court must review all of the summary judgment grounds on
which the trial court ruled, and may consider any grounds on which the trial court did not
rule. Ritchey v. Pinnell, 324 S.W.3d 815, 818 (Tex.App.--Texarkana 2010, no pet.)
(quoting Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex. 1999)).
Point One -- Motion for Summary Judgment on Schachar's Contract Claims
In support of his assertion that the trial court erred by granting Schachar's motion
for summary judgment on his contract claims, Thaw asserts that Schachar committed
various acts that render his "hands unclean" or at the least raise fact issues whether
Schachar is entitled to recover for equitable subrogation, unjust enrichment or
restitution.
Our review of Schachar's motion for partial summary judgment indicates
Schachar sought judgment on his claims based solely on his ownership of the GNB
Note and Banc One Lease with associated guaranties, including Thaw's personal
guaranty of each. Schachar's motion did not mention or argue his claim based on
equitable subrogation or any other equitable remedy. Moreover, after the trial court
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granted judgment in Schachar's favor, Schachar filed an unopposed notice of partial
non-suit regarding his asserted action for equitable subrogation which the trial court
granted without prejudice.
Where the judgment, as here, does not specify the ground relied upon for
granting summary judgment, the judgment must be affirmed if any of the grounds in the
motion have merit. Krueger v. Atascosa County, 155 S.W.3d 614, 621 (Tex.App.--San
Antonio 2004, no pet.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001)). If any theory advanced in a motion for summary judgment supports the granting
of a summary judgment, a court of appeals may affirm regardless of whether the trial
court specified the grounds on which it relied. See Cincinnati Life Ins. Co. v. Cates, 927
S.W.2d 623, 625-26 (Tex. 1996); Johnson v. Calhoun County Independent School
District, 943 S.W.2d 496, 499 (Tex.App.--Corpus Christi 1997, writ denied).
An appellant must attack every ground upon which summary judgment could
have been granted to obtain a reversal; Krueger, 155 S.W.3d at 621 (citing Malooly
Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)), and, unless an appellant has
specifically challenged every possible ground for summary judgment, the appellate
court need not review the merits of the challenged ground and may affirm on the
unchallenged ground. Id. (citing Reese v. Beaumont Bank, N.A., 790 S.W.2d 801, 804-
05 (Tex.App.--Beaumont 1990, no writ)). Because the trial court's ruling on Schachar's
partial motion for summary judgment is sustainable on the uncontroverted evidence
proving up Schachar's guaranty claims, we need not review the merits of whether his
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claim for equitable subrogation is also meritorious. Appellant's first point of error is
overruled.
Point Two -- Motion for Summary Judgment on Thaw's Counterclaim
Thaw also asserts the trial court erred in granting Schachar's motion for
summary judgment on Thaw's counterclaim asserting fraud, conversion, breach of
fiduciary duty and violations of Theramedics's bylaws because Schachar and Thaw
were officers and shareholders of Theramedics. Schachar asserts Thaw lacks
standing to assert claims belonging to Theramedics.
"The general rule in Texas is that 'individual shareholders have no separate and
independent right of action for injuries suffered by the corporation which merely result in
the depreciation of the value of their stock.'" Perry v. Cohen, 285 S.W.3d 137, 144
(Tex.App.--Austin 2009, pet. denied) (quoting Wingate v. Hajdik, 795 S.W.2d 717, 719
(Tex. 1990)).4 "[A] cause of action for injury to the property of a corporation or for
impairment or destruction of its business is vested in the corporation, as distinguished
from its shareholders, even though the harm may result indirectly in the loss of earnings
to the shareholders." Redmon v. Griffith, 202 S.W.3d 225, 233 (Tex.App.--Tyler 2006,
pet. denied). As a result, to recover for wrongs done to the corporation, a shareholder
must bring the suit derivatively in the name of the corporation to ensure that each
shareholder is made whole if the corporation obtains compensation from a wrongdoer.
Swank v. Cunningham, 258 S.W.3d 647, 661 (Tex.App.--Eastland 2008, pet. denied). If
4
This general rule applies even if the corporation is wholly-owned. Lamajak, Inc. v. Frazin, 230
S.W.3d 786, 794 (Tex.App.--Dallas 2007, no pet.).
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a claim belongs to the corporation, shareholders lack standing to seek redress in their
individual capacities, because individual shareholders have no separate and
independent right of action for wrongs to the corporation that merely result in
depreciation in the value of their stock. Id. at 662; Redmon, 202 S.W.3d at 233.
Thaw was sued, and he answered and counterclaimed, in his individual capacity.
In his counterclaim, he asserts that Schachar breached his fiduciary duty because he
failed to restore Theramedics's documents to its former business premises, converted
furniture and equipment belonging to Theramedics in 2006, improperly dissolved the
corporation and violated the corporation's bylaws. These claims are for wrongs
allegedly done to Theramedics and, as such, cannot be brought by Thaw either
personally or on behalf of Theramedics. Corona v. Pilgrim's Pride Corporation, 245
S.W.3d 75, 78-79 (Tex.App.--Texarkana 2007, pet. denied) (counterclaims for harm
done to corporation, i.e., breach of contract, negligence, fraud and conversion,
belonged to corporation, not to guarantor who was also a shareholder of corporation
and could not be asserted by guarantor in creditor's suit on sworn account).
Further, a co-shareholder, such as Schachar, in a closely held corporation does
not as a matter of law owe a fiduciary duty to his co-shareholder; Redmon, 202 S.W.3d
at 237,5 and "[a] director's fiduciary duty runs only to the corporation, not to individual
shareholders or even to a majority of the shareholders." Somers v. Crane, 295 S.W.3d
5, 11 (Tex.App.--Houston [1st Dist.] 2009, pet. denied) (quoting Haggett v. Brown, 971
5
Although such a duty may be found to exist where there is a confidential relationship between
the two; Redmon, 202 S.W.3d at 237, Thaw has neither asserted nor adduced any evidence
below or on appeal that would raise any issue of fact as to the existence of such a relationship.
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S.W.2d 472, 488 (Tex.App.--Houston [14th Dist.] 1997, pet. denied)).6 Thus, Schachar
owed no fiduciary duty to Thaw as a matter of law simply because Schachar was a
corporate officer and shareholder of Theramedics.
Standing is a component of subject-matter jurisdiction, and a plaintiff must have
standing to maintain a suit. Swank, 258 S.W.3d at 661 (citing Tex. Ass'n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993)). Because Thaw lacked standing
as a matter of law to bring the corporation's claims in his individual capacity, the trial
court properly granted summary judgment in Schachar's favor on Thaw's counterclaim.
Appellant's second point of error is overruled.
Conclusion
The trial court's judgment is affirmed.
Patrick A. Pirtle
Justice
6
Although such a duty may be found to exist where there is a contract or confidential
relationship between the corporate officer and the shareholder; Somers, 295 S.W.3d at 11,
Thaw has neither asserted nor adduced any evidence below or on appeal that would raise any
issue of fact as to the existence of such a contract or relationship.
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