Affirmed as Modified and Opinion filed July 27, 2017.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00189-CV

TECLOGISTICS, INC. AND JOSEPHINE TREURNIET, Appellants/Cross-
                         Appellees
                                          V.

         DRESSER-RAND GROUP, INC., Appellee/Cross-Appellant

                    On Appeal from the 270th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-62247

                                  OPINION


      In this appeal from a jury trial on claims of breach of contract and common-
law fraud, both sides appeal the judgment. TecLogistics, Inc. contends that no
evidence supports the breach-of-contract and fraud damages assessed against it.
Successful claimant Dresser-Rand Group, Inc. argues that the trial court abused its
discretion in failing to submit to the jury a question on TecLogistics’ president
Josephine Treurniet’s individual liability for fraud.
       We agree with TecLogistics that the evidence is legally insufficient to support
the jury’s finding of breach-of-contract damages.              The evidence is sufficient,
however, to support the fraud damages assessed against it. Regarding Dresser-
Rand’s cross-appeal, we hold that the trial court did not abuse its discretion in
refusing Dresser-Rand’s proposed charge questions regarding Treurniet’s individual
liability for fraud.

       We accordingly modify the judgment to eliminate the award of damages for
breach of contract, and as modified, we affirm the trial court’s judgment.

                                      I. BACKGROUND

       Dresser-Rand Group, Inc.1 manufactures and services compressors and
turbines for the oil and gas industry worldwide. For a number of years, Dresser-
Rand used freight forwarder TecLogistics, Inc. to arrange for the transportation of
parts and supplies between Dresser-Rand and its customers. In October 2010,
Dresser-Rand sent a letter to its employees requiring them to use one of two other
companies for any international shipments paid for by Dresser-Rand. In that letter
and in another letter sent directly to TecLogistics, Dresser-Rand stated that
TecLogistics was an “unapproved” freight forwarder, and that unapproved freight
forwarders would be paid only for services authorized in advance by specific
Dresser-Rand employees.

       TecLogistics and its owner and president Josephine Treurniet sued Dresser-
Rand, and Dresser-Rand counterclaimed, but by the time of trial, only Dresser-
Rand’s counterclaims for breach of contract and common-law fraud remained.



       1
          Although Dresser-Rand stated in its pleadings that this name is incorrect and that its
correct name is Dresser-Rand Company, the company is referred to as Dresser-Rand Group, Inc.
in the judgment and in the parties’ appellate briefs. We follow the same convention.

                                               2
      Viewed in the light most favorable to the verdict, the trial evidence showed
that TecLogistics commonly subcontracted its work to Pentagon Freight Services,
Inc. and included Pentagon’s charges on its own invoices to Dresser-Rand. Dresser-
Rand required TecLogistics to “back up” the charges by submitting Pentagon’s
invoices along with its own. Dresser-Rand paid the passed-through charges, which
were supported by invoices bearing Pentagon’s name, address, and invoice number.

      During the litigation, however, Dresser-Rand obtained the invoices directly
from Pentagon and found they did not match the “Pentagon” invoices presented by
TecLogistics. Through four invoices, TecLogistics charged Dresser-Rand a total of
$8,181.73 for Pentagon’s services, and the figure matched the “Pentagon” invoices
TecLogistics provided.     Pentagon’s real invoices showed that it had charged
TecLogistics a total of only $2,300.77 for those services. Treurniet admitted at trial
that she had decided upon the amount to charge Dresser-Rand for Pentagon’s
services and that she had created the false Pentagon invoices to back up those
amounts. In addition to these overcharges, Dresser-Rand produced evidence that it
twice paid the same TecLogistics invoice for $7,306.24.

      At the close of evidence, Dresser-Rand moved for directed verdict against
TecLogistics, but the trial court granted the motion only as to TecLogistics’ liability
for breach of contract, leaving damages for the jury to assess. The trial court
additionally submitted to the jury Dresser-Rand’s fraud claim against TecLogistics,
but refused Dresser-Rand’s proposed jury question that would have included
Treurniet in the same fraud-liability question with TecLogistics.

      The jury found $7,306.00 would fairly and reasonably compensate Dresser-
Rand for TecLogistics’ breach of contract. The jury also found TecLogistics liable




                                          3
for fraud and assessed damages of $5,881.00 for that claim.2 In accordance with the
verdict and its charge rulings, the trial court rendered judgment against TecLogistics
for $13,187.00 and ordered that Dresser-Rand take nothing on its claims against
Treurniet.     After the trial court denied TecLogistics’ motion for judgment
notwithstanding the verdict, both sides appealed.

                                   II. ISSUES PRESENTED

       In two issues, TecLogistics argues that Dresser-Rand’s voluntary
overpayment of $7,306.00 is not recoverable as breach-of-contract damages and
cannot be recovered as unjust enrichment, which was not pleaded. In two additional
issues, TecLogistics argues that there is no evidence of damages from fraud because
any evidence of Dresser-Rand’s future loss of business was speculative, and because
Dresser-Rand mitigated its damages by passing TecLogistics’ overcharges through
to Dresser-Rand’s customers.3

       In its cross-appeal, Dresser-Rand contends that the trial court abused its
discretion in failing to submit its fraud claim against Treurniet to the jury.

                               III. TECLOGISTICS’ APPEAL

       Because TecLogistics did not object to the jury charge, we analyze its legal-
sufficiency challenges by determining whether the evidence at trial would have
enabled reasonable and fair-minded jurors following the charge’s instructions to
make the challenged findings. See Seger v. Yorkshire Ins. Co., 503 S.W.3d 388,
406–07 (Tex. 2016). To make this determination, we review the evidence in the


       2
        The jury apparently rounded its damage findings to the nearest dollar, and the parties do
not complain of the de minimus difference between the amounts found by the jury and the evidence
on which Dresser-Rand relied.
       3
         We have reordered TecLogistics’ issues to keep all of the arguments regarding the same
claims together.

                                               4
light most favorable to the verdict and draw all reasonable inferences in support of
the findings. See Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620–21 (Tex. 2014)
(op. on reh’g) (per curiam) (citing City of Keller v. Wilson, 168 S.W.3d 802, 821–
22 (Tex. 2005)). Because the opposing party bore the burden of proof on each of
the challenged findings, we will conclude that the evidence is legally insufficient
only if no more than a scintilla of evidence supports it. See Burbage v. Burbage,
447 S.W.3d 249, 259 (Tex. 2014).

A.    Breach-of-Contract Damages

      TecLogistics does not challenge the directed verdict against it regarding its
liability to Dresser-Rand for breach of contract, but does contend that no evidence
supports the contract damages of $7,306.00 assessed by the jury and awarded by the
trial court. Dresser-Rand’s director of supply-chain management Caldwell Hart
testified that, based on a “Supplier Payment History Report,” TecLogistics owed
Dresser-Rand that amount.             These are not, however, damages caused by
TecLogistics’ breach of contract.

      The Supplier Payment History Report indicates that Dresser-Rand initially
paid a single TecLogistics invoice in the amount of $7,306.24. This amount is
supported by TecLogistics’ invoice labeled “TEC3168.” The Report also shows that
Dresser-Rand later wired nearly $69,000 to TecLogistics as payment for several
invoices.4 Hart testified that this large payment included a second payment of
$7,306.24 for invoice TEC3168. According to Hart, “we double paid this invoice.”
Hart stated that double payments occasionally happen in companies of Dresser-
Rand’s size, and that when this occurs, “[w]e’ll typically notify the supplier and ask
to have that money remitted back to us.” Hart admitted, however, that Dresser-Rand


      4
          Dresser-Rand presented conflicting evidence about the dates of these payments.

                                                5
did not do so in this instance, and that, to his knowledge, the overpayment had not
been returned. Based on this evidence, Dresser-Rand’s counsel argued to the jury,
“You heard Caldwell Hart talk about that, $7,306.24 for the breach of contract that
occurred. You heard him talk about that. We paid twice, you didn’t pay it back, you
owe it to us.”

         But, the jury was not asked to measure breach-of-contract damages by the
amount by which Dresser-Rand paid an amount greater than that agreed; the jury
was asked to find Dresser-Rand’s “damages, if any, that resulted from TecLogistics’
charging an amount greater than that agreed.”5 Although there is evidence that
Dresser-Rand paid a single invoice for $7,306.24 twice, there is no evidence that
TecLogistics charged this amount twice.

         We sustain this issue and modify the judgment to delete the award of
$7,306.00 as breach-of-contract damages.                        We therefore do not address
TecLogistics’ remaining argument about these damages.6

B.       Fraud Damages

         Predicated on its finding that TecLogistics committed fraud against Dresser-
Rand, the jury was asked to assess damages measured by “[t]he difference, if any,
between the value of the services provided by Pentagon Freight Services, Inc. to
TecLogistics, and the value of the services fraudulently claimed by TecLogistics to
have been performed by Pentagon Freight Services, Inc.” Based on this instruction,
the jury assessed fraud damages of $5,881.00.




         5
             Emphasis added.
         6
             For the parties’ reference, we sustain TecLogistics’ third issue and do not reach its fourth
issue.

                                                     6
       The fraud damages found by the jury are supported by the evidence. The jury
was able to compare Pentagon’s real invoices with TecLogistics’ false Pentagon
invoices for the same services. The uncontroverted evidence showed that in each of
four invoices, TecLogistics falsely stated the amount Pentagon charged, and that
Dresser-Rand paid TecLogistics’ invoices containing the inflated charges. Although
Pentagon charged TecLogistics a total of only $2,300.77 for its services,
TecLogistics represented to Dresser-Rand that Pentagon had charged TecLogistics
a total of $8,181.73—a difference of $5,880.96.

       Treurniet agreed at trial that the amounts TecLogistics actually paid Pentagon
are shown only in the real Pentagon invoices. She also admitted that she chose the
amount TecLogistics charged Dresser-Rand for Pentagon’s services and that she
created the false Pentagon invoices TecLogistics sent Dresser-Rand as support for
those charges. Although Treurniet also testified that she acted in accordance with
the instructions of a Dresser-Rand employee, we must assume that the jury did not
find her testimony credible. See Wilson, 168 S.W.3d at 819. Because we cannot say
that the jury’s credibility determination was itself unreasonable, we must defer to it.
See id. at 820; In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam).

       Despite Treurniet’s admissions, TecLogistics challenges the jury’s fraud
findings on two grounds. First, TecLogistics argues that both the jury’s fraud-
liability finding and its fraud-damages finding must be reversed because damages
are an essential element of a fraud claim,7 and “speculation about possible future
loss of business” is not evidence of actual damages caused by fraud.                      The
“speculation about possible future loss of business” to which TecLogistics refers is
Hart’s trial testimony that if Dresser-Rand passed TecLogistics’ false Pentagon

       7
         See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex.
1998) (including among the elements of common-law fraud, “the party suffered injury”).

                                              7
invoices on to a customer, then Dresser-Rand could lose business. As a second
ground for reversal, TecLogistics asserts that Dresser-Rand suffered no actual
monetary loss from the false representations about Pentagon’s charges because
Dresser-Rand passed those charges on to its customers.

      Both arguments fail for the same reason: in reviewing the legal sufficiency
of the evidence to support the fraud-damages finding, we are bound by the
instructions given to the jury and by the presumption that the jury followed those
instructions. See Seger, 503 S.W.3d at 407. The charge required the jury consider
one measure of damages “and none other.” The charge specified that Dresser-
Rand’s fraud damages were equal to the difference, if any, between (1) the value of
Pentagon’s services, and (2) the value of Pentagon’s services as fraudulently claimed
by TecLogistics. Thus, the jury could neither increase the resulting figure by adding
the value of Dresser-Rand’s possible future loss of business, nor decrease it by the
extent to which Dresser-Rand was reimbursed for the inflated charges from a
collateral source. Of course, the jury was also instructed to consider whether the
claimed amounts were “damages . . . that resulted from such fraud.” But this
causation requirement also did not require the jury to deduct any recovery from
another source, as a fraud victim may recover out-of-pocket damages based on the
difference between the value paid and the value received. See Aquaplex, Inc. v.
Rancho La Valencia, Inc., 297 S.W.3d 768, 775 (Tex. 2009) (per curiam).

      Because the evidence is legally sufficient to support the fraud damages
assessed in accordance with the jury’s instructions, we overrule TecLogistics’ issues
challenging the jury’s fraud-liability and fraud-damages findings, and we affirm the
portion of the judgment giving effect to those findings.




                                          8
                              IV. DRESSER-RAND’S APPEAL

       In its sole appellate issue, Dresser-Rand argues that the trial court improperly
refused Dresser-Rand’s written request to submit its proposed jury question (and its
accompanying instructions and definitions) regarding Treurniet’s liability for
common-law fraud. We review a trial court’s jury-charge rulings for abuse of
discretion. See Sw. Energy Production. Co. .v Berry-Helfand, 491 S.W.3d 699, 727
(Tex. 2016). Because Dresser-Rand intended to rely on its proposed question,
instructions, and definitions, we will conclude that the trial court’s refusal to submit
them constitutes reversible error only if Dresser-Rand’s question, instructions, and
definitions (a) were raised by the written pleadings and the evidence; (b) were
written in substantially correct wording; and (c) were not merely different shades of
questions, instructions, and definitions that already had been properly included in
the charge. See TEX. R. CIV. P. 278.

       According to Dresser-Rand, the record shows that these requirements have
been satisfied.     Dresser-Rand’s live pleadings show that it asserted its fraud
counterclaim against “Plaintiffs,” and Treurniet is a co-plaintiff with TecLogistics.
The evidence is legally sufficient to show that TecLogistics committed common-law
fraud: it knowingly made a false representation of a material fact, intending Dresser-
Rand to act upon it, and Dresser-Rand did act in reliance on the misrepresentation,
paying TecLogistics more than triple the amount of Pentagon’s actual charges. See
Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex.
1998) (listing all the elements of common-law fraud). Moreover, a corporation can
act only through human agents,8 and the evidence established that Treurniet is the
agent through which TecLogistics acted to defraud Dresser-Rand: she admitted that

       8
         See In re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 762 (Tex. 2006) (orig. proceeding) (per
curiam) (citing Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex. 1995)).

                                               9
she decided, in her capacity as TecLogistics’ owner and president, the amount
TecLogistics would charge Dresser-Rand for Pentagon’s services and that she
created the false Pentagon invoices to back up those charges.

       But, a corporation is a separate legal entity from its shareholders, officers, and
directors,9 and as a general rule, “the actions of a corporate agent on behalf of the
corporation are deemed the corporation’s acts.” Holloway v. Skinner, 898 S.W.2d
793, 795 (Tex. 1995). For Treurniet to be individually liable for these acts, more is
required.

A.     Texas Business Organizations Code Section 21.223

       The additional elements that must be proved to hold a corporate shareholder
or officer individually liable are found in Texas Business Organizations Code
section 21.223:

       (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:
                                            ....
              (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 or on the basis of
                     actual or constructive fraud, a sham to perpetrate a fraud,
                     or other similar theory . . . .
                                            ....
       (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

       9
        See Penhollow Custom Homes, LLC v. Kim, 320 S.W.3d 366, 372 (Tex. App.—El Paso
2010, no pet.) (citing Sparks v. Booth, 232 S.W.3d 853, 868 (Tex. App.—Dallas 2007, no pet.)).

                                             10
               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 (West 2012) (emphasis added). As can be
seen, subsection (a)(2) prevents an individual from being held individually liable for
certain claims, unless the additional elements found in subsection (b) are proved.10

       Dresser-Rand argues that section 21.223(a)(2)’s exemption from liability does
not apply to these facts, but that if it does, then Treurniet nevertheless is liable under
the exception of subsection (b). We therefore begin our discussion by showing that
the statute’s language encompasses Dresser-Rand’s fraud claim against Treurniet.
We will then address Dresser-Rand’s arguments to the contrary, which require us to
describe the statute’s history and how it has changed over time. Having explained
our reasons for concluding that subsection (a)(2)’s exemption from liability applies,
we will then discuss Dresser-Rand’s alternative argument that subsection (b)’s
exception to the exemption applies.

       1.      The statute applies to these litigants, and to this fraud claim.

       Under Section 21.223(a)(2)’s unambiguous terms, it applies only if its
requirements are satisfied concerning the (1) the form of the entity with which the
defendant must have a relationship, (2) the nature of the defendant’s relationship to
the entity, (3) the connection between the claims from which the defendant seeks
protection and an obligation of the corporation; (4) the plaintiff’s connection to the
entity with which the defendant has a relationship, and (5) the basis on which the
plaintiff seeks to hold the defendant individually liable.


       10
           There are two additional exceptions in which a person will not be exempt from liability
even if all of the requirements of section 21.223(a)(2) are satisfied. See id. §§ 21.224, 21.225. We
describe these exceptions in section IV.A.2, infra.

                                                11
       First, the statute applies only if the entity with which the defendant has a
relationship is a corporation.11 See TEX. BUS. ORGS. CODE ANN. § 21.223(a)(2).
This requirement is met because it is undisputed that TecLogistics, the entity with
which defendant Treurniet has a relationship, is a corporation.

       Second, the statute bars a defendant’s individual liability only if the
defendant’s relationship with the corporation is that of 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.” See id. Treurniet is such a person.12 All parties agree that Treurniet
is TecLogistics’ owner and president. Treurniet judicially admitted in her live
pleadings that she is TecLogistics’ owner and principal,13 and Dresser-Rand refers
in its appellate brief to Treurniet’s “ownership interest in the company.” In addition,
Pentagon’s representative testified at trial that Treurniet is TecLogistics’ president,
and on appeal, all parties refer to Treurniet as TecLogistics’ president. Thus, as an
owner and president of the corporation, Treurniet is both TecLogistics’ shareholder
and its “affiliate.” See TEX. BUS. ORGS. CODE ANN. § 1.002(1) (West Supp. 2016)
(stating that, as used in the Texas Business Organizations Code, “‘[a]ffiliate’ means
a person who controls, is controlled by, or is under common control with another




       11
        A separate provision now extends section 21.223’s application to include limited liability
companies. See id. § 101.002(a).
       12
        For the purpose of the statute, we characterize Dresser-Rand as the plaintiff and Treurniet
and TecLogistics as defendants because, although the suit originally was filed by TecLogistics, its
claims were eliminated before trial, leaving only Dresser-Rand’s counterclaims against
TecLogistics and Treurniet.
       13
           See Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983) (“Assertions of
fact, not pled in the alternative, in the live pleadings of a party are regarded as formal judicial
admissions.”).

                                                12
person”); id. § 1.002(69-b) (defining “person” to include individuals, corporations,
and other organizations and legal entities).

      Third, section 21.223(a)(2) shields the defendant shareholder or affiliate from
individual liability only “with respect to . . . any contractual obligation of the
corporation or any matter relating to or arising from the obligation.” See TEX. BUS.
ORGS. CODE ANN. § 21.223(a)(2). This required connection between individual
liability and corporate contractual obligation, too, is satisfied.     TecLogistics’
contractual obligations to Dresser-Rand were not only to forward freight to and from
Dresser-Rand’s customers, but also to provide documentation to Dresser-Rand to
support its charges. As Hart explained, Dresser-Rand requires documentation to
support a freight-forwarder’s invoice because the company typically passes freight-
forwarding charges through to the customer, and Dresser-Rand “ha[s] to provide
invoice and documentation when we bill the client showing what those charges are.”
To ensure the accuracy of those charges, a freight-forwarder’s invoice and its
supporting documentation is first reviewed by Dresser-Rand’s accounts-payable
department to see that they match. The same review is repeated by those responsible
for supply-chain management. Dresser-Rand additionally conducts internal audits
to ensure that the documentation is in order. Because the parties agreed that
TecLogistics would provide documentation to support its subcontractor’s charges,
Dresser-Rand’s claim that Treurniet provided fabricated documents is a claim
“relating to arising from” TecLogistics’ contractual obligations to Dresser-Rand.

      Fourth, the statute shields an individual defendant from liability only to “the
corporation or its obligees.” See TEX. BUS. ORGS. CODE ANN. § 21.223(a). In the
contractual obligations to forward freight and to supply documentation supporting a
subcontractor’s charges, TecLogistics is the obligor and Dresser-Rand is the obligee.
Compare Obligor, BLACK’S LAW DICTIONARY (6th ed. 1990) (“A promisor. The

                                          13
person who has engaged to perform some obligation.”) with id. Obligee (defining
“obligee” as “[a] promisee. The person in favor of whom some obligation is
contracted, whether such obligation be to pay money or to do or not to do
something.”). Because claimant Dresser-Rand is TecLogistics’ obligee, this portion
of the statute is satisfied.

       And fifth, the statute applies only if the basis of the individual defendant’s
liability is that the defendant “is or was the alter ego of the corporation or on the
basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar
theory.” See TEX. BUS. ORGS. CODE ANN. § 21.223(a)(2). Dresser-Rand is seeking
to hold Treurniet liable to it on the basis of “actual fraud.” “Actual fraud usually
involves dishonesty of purpose or intent to deceive,”14 and Dresser-Rand alleged that
“Plaintiffs” made false, material representations “with the intent to deceive and
defraud Dresser-Rand”; thus, Dresser-Rand alleged actual fraud. This allegation
also was supported by the evidence:               Treurniet knew what Pentagon actually
charged, but she admittedly created the false Pentagon invoices, and she personally
signed the TecLogistics’ invoices incorporating the knowing misrepresentations.
She admits that no one else at TecLogistics was involved in creating and tendering
the invoices. Treurniet, then, was the human agent through which TecLogistics
committed actual fraud against Dresser-Rand.

       Because all five of section 21.223(a)(2)’s requirements have been satisfied,
the statute’s terms barring individual liability apply to Dresser-Rand’s fraud claim
against Treurniet.




       14
            Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964).

                                                14
       2.     Dresser-Rand’s Counter-Argument

       In arguing that Treurniet can be held liable to it for fraud despite the statute’s
terms, Dresser-Rand relies exclusively on the common law. The short answer to that
reliance is found in Texas Business Organizations Code sections 21.224 and 21.225.
They provide that liability “for an obligation that is limited by Section 21.223 is
exclusive and preempts any other liability imposed for that obligation under
common law or otherwise,” see id. § 21.224, unless one of two exceptions applies.
See id. § 21.225. A person’s liability is not limited if that person “(1) expressly
assumes, guarantees, or agrees to be personally liable to the obligee for the
obligation; or (2) is otherwise liable to the obligee for the obligation under [the
Business Organizations Code] or other applicable statute.” Id. No one alleged or
offered evidence that either exception applies here.

       The short answer, however, is not the complete answer. It does not explain
why, at first blush, many cases—a number of which are cited by Dresser-Rand—
appear to hold an individual liable with respect to a matter relating to or arising from
a corporate obligation even when the requirements of section 21.223(a)(2) have been
satisfied. Most of these apparent inconsistencies are explained by the statute’s
history.

              (a)     The history of Texas Business Organizations Code sections
                      21.223–.225
       The substance of Texas Business Organizations Code section 21.223 first
began to be codified in 1989, when the legislature amended the statute’s predecessor,
Texas Business Corporations Act art. 2.21.15 In this early version, the statute
protected only shareholders, subscribers, and owners of a beneficial interest in

       15
          See Act of May 12, 1989, 71st Leg., R.S., ch. 217, § 1, 1989 TEX. GEN. LAWS 974, 974–
75 (eff. Aug. 28, 1989); Act of May 26, 1989, 71st Leg., R.S., ch. 801, § 7, 1989 TEX. GEN. LAWS
3610, 3617 (eff. Aug. 28, 1989).

                                              15
shares; shielded them only from the corporation’s contractual obligations; and
applied only if the claimant sought to hold an individual liable based on actual fraud,
constructive fraud, sham to perpetrate a fraud, or failure to observe corporate
formalities and statutory requirements.16 Then, as now, the statute’s protection was
unavailable if the person caused the corporation to commit actual fraud primarily for
the person’s direct personal benefit.17 And just as in the current version of the
statute, the earlier provision did not shield an individual from statutory liabilities or
from liabilities that the person expressly assumed or guaranteed.18

       The statute did not expressly preempt the common law until 1993.19 When
adding that provision, the legislature also expanded the statute’s reach slightly, so
that it applied when the claimant sought to impose liability based not only on actual
or constructive fraud or sham to perpetrate a fraud, but also on any “other similar
theory” or on alter ego.20

       It was not until 1997 that the statute reached its current breadth. At that time,
the legislature expanded the scope of the statute’s protection so that covered persons
were protected from liability not only for the corporation’s contractual obligations




       16
          See Act of May 12, 1989, 71st Leg., R.S., ch. 217, § 1, 1989 TEX. GEN. LAWS at 974–
75; Act of May 26, 1989, 71st Leg., R.S., ch. 801, § 7, 1989 TEX. GEN. LAWS at 3617.
       17
            See Act of May 12, 1989, 71st Leg., R.S., ch. 217, § 1, 1989 TEX. GEN. LAWS at 975.
       18
         Compare Act of May 12, 1989, 71st Leg., R.S., ch. 217, § 1, 1989 TEX. GEN. LAWS at
975 and Act of May 26, 1989, 71st Leg., R.S., ch. 801, § 7, 1989 TEX. GEN. LAWS at 3617 with
TEX. BUS. ORGS. CODE ANN. § 21.225 (stating that section 21.223 does not limit a person’s liability
to a corporation’s obligee if the person expressly assumed or guaranteed the obligation or “is
otherwise liable to the obligee for the obligation under this code or other applicable statute”).
       19
           See Act of May 7, 1993, 73rd Leg., R.S., ch. 215, § 2.05, 1993 TEX. GEN. LAWS 418,
446 (eff. Sept. 1, 1993).
       20
            See id.

                                                16
but also for “any matter relating to or arising from the obligation.”21 The legislature
also enlarged the classes of persons who were protected by the statute to include not
only shareholders, subscribers, and owners of beneficial interests in shares, but also
“any affiliate thereof or of the corporation.”22 An “affiliate” was defined as “a
person who directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with a specified person.”23 With this
change, the statute began to shield those with the right to control the corporation,
even if they had no actual or beneficial ownership interest.

       In the intervening years, there have been several technical changes but only
one significant substantive change. The most notable technical change is that, due
to recodification, article 2.21 of the Texas Business Corporations Code has instead
appeared since 2006 as sections 21.223–.225 of the Texas Business Organizations
Code.24 Substantively, the legislature expanded the reach of sections 21.223–.225
in 2011, so that they now protect not only corporations and their affiliates, but also
limited liability companies and their members, owners, assignees, affiliates, and
subscribers. See TEX. BUS. ORGS. CODE ANN. § 101.002 (West 2012).25

       With that history in mind, we turn to Dresser-Rand’s arguments that caselaw
prevents Treurniet from being statutorily shielded from liability.




       21
           Act of May 13, 1997, 75th Leg., R.S., ch. 375, § 7, 1997 TEX. GEN. LAWS 1516, 1522
(eff. Sept. 1, 1997).
       22
            Id., 1997 TEX. GEN. LAWS at 1522–23.
       23
            Id. § 47, 1997 TEX. GEN. LAWS at 1556.
       24
        See Act of May 13, 2003, 78th Leg., R.S., ch. 182, § 1, secs. 21.223–.225, 2003 TEX.
GEN. LAWS 267, 427 (eff. Jan. 1, 2006).
       25
            Added by Act of Apr. 20, 2011, 82d Leg., R.S., ch. 25, § 1, 2011 TEX. GEN. LAWS 45,
45.

                                               17
(b)   Caselaw’s apparent divergence from the statutory liability shield

      Dresser-Rand begins by stating that section 21.223 limits a shareholder’s
liability only for a corporation’s debts or contractual obligations. As authority for
this proposition, Dresser-Rand cites Willis v. Donnelly, 199 S.W.3d 262, 271–72
(Tex. 2006). What the court actually said in that case was that “the Legislature in
1989 narrowly prescribed the circumstances under which a shareholder can be held
liable for corporate debts.” Id. That is a correct statement about the scope of the
statute in 1989, but as we have just seen, the statute provides much more robust
protection today.

      Dresser-Rand additionally emphasizes two cases in which individual business
owners were held personally liable for damages resulting from a company’s
fraudulent invoices.    See Clayton v. Parker, No. 13-09-00399-CV, 2010 WL
3180364, at *7 (Tex. App.—Corpus Christi Aug. 12, 2010, no pet.) (mem. op.);
Daugherty v. Jacobs, 187 S.W.3d 607, 618 (Tex. App.—Houston [14th Dist.] 2006,
no pet.). But unlike the case before us, the liability shield provided by section 21.223
and its predecessor article 2.21 would not have applied to either of the cases that
Dresser-Rand cites. This is so for at least two reasons.

      First, as previously mentioned, the statute shields certain individuals from
liability in matters relating to or arising from “any contractual obligation of the
corporation.” TEX. BUS. ORGS. CODE ANN. § 21.223(a)(2) (emphasis added). In the
cases Dresser-Rand cites, the defendants were not held liable in matters arising from
a corporation’s contractual obligations. The fraudulent invoices in Clayton instead
were issued by limited partnerships. See Clayton, 2010 WL 3180364, at *7 (stating
that the appellants contend the court “should ignore the limited partnership
structure”). The invoices in Daugherty appear to have been those of a limited



                                          18
liability company,26 but the statute’s protection from liability was not extended to
include matters arising from a limited liability company’s contractual obligations
until 2011—five years after Daugherty was decided.27

       Second, even when the statute bars liability that otherwise might be imposed
under the common law, the statute provides no protection from liability imposed by
another statute. See TEX. BUS. ORGS. CODE ANN. § 21.225(2). In Clayton and
Daugherty, the statute would not have protected the defendants because a different
statute imposed individual liability on them for the damages awarded. See Clayton,
2010 WL 3180364, at *2 n.10 (quoting the language of the charge tracking Texas
Penal Code section 32.46, for which Texas Civil Practice and Remedies Code
section 33.013(b)(2)(K) holds each liable defendant jointly and severally liable for
the claimant’s recoverable damages); see also id. § 33.011(2) (as used in Texas Civil
Practice and Remedies Code chapter 33, “defendant” “includes any person from
whom, at the time of the submission of the case to the trier of fact, a claimant seeks
recovery of damages”) (emphasis added); Daugherty, 187 S.W.3d at 612 (“This is a
Deceptive Trade Practices (DTPA) case.”);28 see also Miller v. Keyser, 90 S.W.3d
712, 714 (Tex. 2002) (explaining that because the DTPA’s language specifies that a
consumer may sue “any person,” an agent for a disclosed principal can be held

       26
           See Daugherty, 187 S.W.3d at 613 (not mentioning the form of the business entity K &
K Vintage Motorcars, but stating that the business’s appeal was severed and stayed); K & K
Vintage Motorcars, L.C. v. Jacobs, No. 14-05-00553-CV, 2010 WL 975000, *1 (Tex. App.—
Houston [14th Dist.] Mar. 18, 2010, no pet.) (per curiam) (mem. op.) (identifying the business as
“K & K Vintage Motorcars, L.C.”); TEX. BUS. ORGS. CODE ANN. § 5.056(a) (West 2012) (stating
that the limited liability company’s name must include the phrase “limited liability company,” or
the phrase “limited company,” or an abbreviation of one of those phrases).
       27
          See TEX. BUS. ORGS. CODE ANN. § 101.002(a) (West 2012); Act of Apr. 20, 2011, 82d
Leg., R.S., ch. 25, § 2, 2011 TEX. GEN. LAWS 45, 45 (identifying the legislation’s effective date as
September 1, 2011).
       28
         See the Deceptive Trade Practices–Consumer Protection Act, TEX. BUS. & COM. CODE
ANN. §§ 17.41–.63 (West 2011 & Supp. 2016).

                                                19
statutorily liable under the DTPA for false representations made in the course and
scope of the agent’s employment) (emphasis added).29

       Of the remaining cases relied upon by Dresser-Rand as support for its position
that Treurniet can be held personally liable, most do not mention section 21.223 or
its predecessor.30 The parties do cite some cases in which the Texas Business
Organizations Code section 21.223 or its predecessor is discussed, but in those cases
the authoring court held that the statute protected the individual defendants from
personal liability,31 unless the defendant caused the corporation to commit actual
fraud primarily for the defendant’s direct personal benefit.32

       29
            The same is true of another of this court’s decisions that Dresser-Rand cites. See
Sheffield v. Gibson, No. 14-06-00483-CV, 2008 WL 190049, at *4 (Tex. App.—Houston [14th
Dist.] Jan. 22, 2008, no pet.) (mem. op.) (defendants were statutorily liable for fraud in a real estate
transaction); TEX. BUS. & COM. CODE ANN. § 27.01(b), (c) (West 2015) (“A person who makes a
false representation or false promise commits [fraud in a real estate or stock transaction] and is
liable to the person defrauded for actual damages.”).
       30
           See, e.g., Miller v. Keyser, 90 S.W.3d 712 (Tex. 2002); Leyendecker & Assocs., Inc. v.
Wechter, 683 S.W.2d 369 (Tex. 1984) (op. on reh’g); Nwokedi v. Unlimited Restoration
Specialists, Inc., 428 S.W.3d 191 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Physio GP,
Inc. v. Naifeh, 306 S.W.3d 886 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Sanchez v.
Mulvaney, 274 S.W.3d 708 (Tex. App.—San Antonio 2008, no pet.); Graham Land & Cattle Co.
v. Indep. Bankers Bank, 205 S.W.3d 21 (Tex. App.—Corpus Christi 2006, no pet.); Morris v.
Kohls-York, 164 S.W.3d 686 (Tex. App.—Austin 2005, pet. dism’d); Cimarron Hydrocarbons
Corp. v. Carpenter, 143 S.W.3d 560 (Tex. App.—Dallas 2004, pet. denied); Gore v. Scotland
Golf, Inc., 136 S.W.3d 26 (Tex. App.—San Antonio 2003, pet. denied) (op. on reh’g); Holberg v.
Teal Constr. Co., 879 S.W.2d 358 (Tex. App.—Houston [14th Dist.] 1994, no writ).
       31
           See, e.g., Willis, 199 S.W.3d at 270–73 (defendant not liable where jury failed to find
fraud or a similar theory, and defendant did not expressly assume personal liability for corporate
obligations); TransPecos Banks v. Strobach, 487 S.W.3d 722, 736–37 & n.11 (Tex. App.—El Paso
2016, no pet.) (no evidence defendant committed actual fraud or that she received a direct personal
benefit); Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 388–
89 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (no evidence defendant’s fraud was primarily
for his direct personal benefit); Harco Energy, Inc. v. Re-Entry People, Inc., 23 S.W.3d 389, 397
(Tex. App.—Amarillo 2000, no pet.) (legally insufficient evidence of fraud); Menetti v. Chavers,
974 S.W.2d 168, 174 (Tex. App.—San Antonio 1998, no pet.) (legally insufficient evidence of
actual fraud).
       32
          See Tryco Enters., Inc. v. Robinson, 390 S.W.3d 497, 511 (Tex. App.—Houston [1st
Dist.] 2012, pet. dism’d) (“Robinson has borne his burden of producing proof sufficient to justify
                                                  20
       In a notable exception, Dresser-Rand points out one case in which the
reviewing court discussed the statute, but refused to apply it based on common-law
principles. See Kingston v. Helm, 82 S.W.3d 755 (Tex. App.—Corpus Christi 2002,
pet. denied). In Kingston, the president of a corporate real estate developer made
misrepresentations about a townhome in the course of selling it to the plaintiff. See
id. at 757. Our sister court concluded that the statute was intended to apply only in
very limited circumstances—more limited, we believe, than is consistent with the
statute’s plain language. We disagree with the Kingston court’s reasoning because
it reached its conclusion that the statute has only limited application by relying on
cases that predated the relevant statutory amendments, or that dealt with liability
imposed by another statute.

       Dresser-Rand similarly relies on Walker v. Anderson, 232 S.W.3d 899, 918
(Tex. App.—Dallas 2007, no pet.), in which the authoring court cited Kingston for
the proposition that “[i]t is not necessary to pierce the corporate veil in order to
impose personal liability, as long as it is shown that the corporate officer knowingly
participated in the wrongdoing.” But, liability in Walker was not based on the
corporation’s owner’s “knowing participation”; because liability in that case instead
was based on article 2.21, the stated proposition is dicta. Further, the Walker court
agreed with the trial court “that the evidence submitted at trial supports a judgment
that Walker used [the corporation] for the purpose of perpetrating, and did perpetrate
an actual fraud on the [the appellees] for the direct personal benefit of Walker, the


piercing the corporate veil under article 2.21 or Business Organizations Code section
21.223 . . . .”); Walker v. Anderson, 232 S.W.3d 899, 916–17 (Tex. App.—Dallas 2007, no pet.)
(agreeing with the trial court’s conclusion of law that appellant used the corporation “for the
purpose of perpetrating, and did perpetrate an actual fraud on the [appellees] for the direct personal
benefit of [the appellant]”); Cass v. Stephens, 156 S.W.3d 38, 58–60 (Tex. App.—El Paso 2004,
pet. denied) (holding the evidence legally and factually sufficient to support finding that defendant
perpetrated actual fraud for his own direct benefit).

                                                 21
sole shareholder and director of [the corporation], in violation of Article 2.21(a)(2).”
See id. at 916 (emphasis added).

B.     The “Direct Personal Benefit” Exception

       Because all of the requirements of section 21.223(a)(2) are satisfied, Treurniet
cannot be held liable to Dresser-Rand for the fraud at issue in this case unless the
additional requirements of section 21.223(b) are satisfied. Under that subsection,
Treurniet could be liable to Dresser-Rand if she “caused the corporation to be used
for the purpose of perpetrating and did perpetrate an actual fraud on the obligee
primarily for [her] direct personal benefit.”

       Dresser-Rand did not allege in its written pleadings that Treurniet acted
primarily for her direct personal benefit, and it presented no such evidence at trial.
It also proposed no jury question that would have permitted such a finding; Dresser-
Rand’s proposed jury question on fraud liability addressed the elements of common-
law fraud, but would have allowed the jury to hold Treurniet liable without evidence
that she acted primarily for her direct personal benefit. But see R.R. Comm’n of Tex.
v. Gulf Energy Expl. Corp., 482 S.W.3d 559, 571 (Tex. 2016) (“Generally, a
question on a statutory cause of action or defense ‘should track the language of the
provision as closely as possible.’” (quoting Borneman v. Steak & Ale of Tex., Inc.,
22 S.W.3d 411, 413 (Tex. 2000) (per curiam))).

       Because Texas Business Organizations Code section 21.223(a)(2) shields
Treurniet from liability and no exception to that shield applies, we conclude that the
trial court did not abuse its discretion in failing to submit to the jury a question about
Treurniet’s individual liability to Dresser-Rand for fraud.33


       33
           The proposed fraud-liability question served as the predicate for a fraud-damages
question that included Treurniet’s liability, and the damages question was in turn the predicate for
a proportionate-responsibility question. The trial court necessarily refused these questions as well,
                                                 22
                                        V. CONCLUSION

       Regarding TecLogistics’ appeal, we conclude that, when measured against the
language of the charge, no evidence supports the jury’s assessment of damages for
breach of contract. We accordingly modify the judgment to eliminate this award.
The jury’s fraud finding, on the other hand, is supported by the evidence. As for
Dresser-Rand’s cross-appeal, we conclude that the trial court did not abuse its
discretion in refusing to submit to the jury Dresser-Rand’s fraud claim against
Treurniet in her individual capacity. Thus, as modified, we affirm the trial court’s
judgment.




                                              /s/     Tracy Christopher
                                                      Justice




Panel consists of Justices Christopher, Busby, and Jewell.




and Dresser-Rand contends all of the trial court’s jury-charge rulings concerning the fraud claim
against Treurniet were erroneous. Because we conclude that the trial court did not abuse its
discretion in refusing to submit the first proposed question in this chain, we necessarily conclude
that the trial court did not abuse its discretion in refusing to submit any other questions that were
dependent on a finding that Treurniet is personally liable to Dresser-Rand for common-law fraud.

                                                 23
