
                                          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 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  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 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 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 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  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 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 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












-----------------------
[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.

[3]See Tex. Civ. Prac. & Rem. Code § 16.003(a) (West Supp. 2010).

[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.).

[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.

[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.



