                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-13-00263-CV
                             ________________________

                           BYRON MORGAN, APPELLANT

                                           V.

      D&S MOBILE HOME CENTER, INC. AND SHAWN FULLER, APPELLEES



                           On Appeal from the 99th District Court
                                  Lubbock County, Texas
           Trial Court No. 2012-503,563, Honorable William C. Sowder, Presiding


                                     August 1, 2014

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Byron Morgan appeals from summary judgments denying him recovery against

D&S Mobile Home Center, Inc. (D&S) and Shawn Fuller. Morgan contends that the trial

court erred in granting those judgments. We affirm in part and reverse in part.

      Background

      The proceeding before us arose from Morgan’s effort to pierce the corporate veil

of D&S and hold its sole shareholder (that is, Fuller) liable for damages awarded
Morgan in a previous judgment against the corporation. Morgan had sued D&S for

committing deceptive trade practices and fraud. The matter was tried to a jury which

rendered a verdict favoring Morgan on both causes of action. However, the trial court

entered judgment for Morgan only upon the deceptive trade practice claims. It also

included within the judgment a clause denying Morgan all relief not therein awarded.

No one disputes the finality of that prior decree.

       Upon securing the aforementioned judgment against D&S, Morgan once again

sued the corporation. He also added Fuller as a defendant. The sole cause of action

asserted against Fuller encompassed effort to pierce D&S’ corporate veil and hold him

liable for the damages awarded in the prior decree. The claims averred against D&S

consisted of a request for an accounting and the imposition of a constructive trust. The

corporation moved for summary judgment, contending that the two remedies sought

against it were barred by res judicata.        Fuller contended, through his motion for

summary judgment, that “[p]iercing the corporate veil only accomplishes finding the

individual stockholder or officer legally liable for the actual fraud of the corporation.

Since the corporation was not found guilty of fraud, the veil cannot be pierced and there

can be no individual liability for Defendant Fuller.” He further argued that “[e]ven if there

is a fact issue on inadequate capitalization, that alone will not support piercing the

corporate veil.” The trial court granted both motions for summary judgment.

       Summary Judgment Favoring D&S

       On appeal, Morgan argues that res judicata does not prevent him from piercing

the corporate veil. Consequently, the trial court erred in holding otherwise.




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       D&S did not assert, via its summary judgment motion, that the defense of res

judicata barred effort to pierce the corporate veil and hold Fuller liable for the judgment

against it. Again, it said that the defense barred the demands for an accounting and a

constructive trust. That argument went unaddressed here, and it was his burden to

establish on appeal that the trial court erred. Budd v. Gay, 846 S.W.2d 521, 524 (Tex.

App.—Houston [14th Dist.] 1993, no writ) (stating that the appellant has the burden on

appeal to establish error). Morgan having failed to carry his burden to show that the

summary judgment against D&S was improper, we overrule the issue.

       Summary Judgment Favoring Fuller

       Before us, Morgan argues that the jury’s finding that D&S committed fraud was

not lost or vitiated by the trial court entering judgment based upon the finding that D&S

committed a deceptive trade practice and that inadequate capitalization alone is enough

to warrant the piercing of the corporate veil. We agree in part and disagree in part.

       The adequacy of a corporation’s capitalization is one factor to consider when

assessing whether the corporate veil should be pierced. Torregrossa v. Szelc, 603

S.W.2d 803, 805 (Tex. 1980). It alone does not entitle a complaint to such relief.

Ramirez v. Hariri, 165 S.W.3d 912, 917 (Tex. App.—Dallas 2005, no pet.); accord

Torregrossa v. Szlec, 603 S.W.2d at 805 (stating “[t]he court of civil appeals cited Tigrett

v. Pointer, 580 S.W.2d 375 (Tex. Civ. App.—Dallas 1978, writ ref'd n.r.e.), in support of

its holding that insufficient capitalization is a sufficient ground to pierce the corporate

veil. This case does not support such a holding in that it was there said that

‘[inadequate] capitalization by itself may not be a sufficient ground to pierce the

corporate veil.’ The court did recognize that ‘grossly inadequate capitalization’ is an



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important factor in determining whether personal liability should be imposed. However,

in Tigrett the inadequate capitalization came about through a fraudulent scheme on the

part of the major stockholder to acquire virtually all of the corporate assets to repay

advances he had made.”). That the authority cited by Morgan suggests otherwise,

Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 715 (Tex. App.—Houston [1st Dist.] 2002,

pet. denied), matters not.    That opinion was rendered by an intermediate court of

appeals. Torregrossa was rendered by the Texas Supreme Court, and its opinions

trump those from intermediate appellate courts.

       As for the matter of fraud, a corporate shareholder may not be held liable to the

corporation or its obligees (such as a judgment creditor) with respect to any contractual

obligation or other matter relating to or arising from the obligation on the basis of alter

ego or actual or constructive fraud, a sham to perpetrate a fraud or other similar theory

unless that person 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.   TEX. BUS. ORGS. CODE ANN. § 21.223(a)(2)&(b) (West 2012); Harco

Energy, Inc. v. Re-Entry People, Inc., 23 S.W.3d 389, 393 (Tex. App.—Amarillo 2000,

no pet.); accord Lone Star Air Sys., Ltd. v. Powers, 401 S.W.3d 855, 862-63 (Tex.

App.—Houston [14th Dist.] 2013, no pet.) (noting the need to show that the corporate

fiction was used to perpetuate a fraud to primarily benefit the person or entity upon

whom liability is sought to be imposed); Tryco Enters., Inc. v. Robinson, 390 S.W.3d

497, 507 (Tex. App.—Houston [1st Dist.] 2012, pet. dism’d) (noting the same). Again,

Fuller argued that since “the corporation was not found guilty of fraud, the veil cannot be

pierced and there can be no individual liability for Defendant Fuller.” He was referring to



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the prior suit against D&S wherein the jury answered yes to questions about D&S

committing fraud and deceptive trade practices.        The trial court entered judgment,

though, only upon the deceptive trade practice findings.         This allegedly prevented

Morgan from suing Fuller to impress him with the debts of D&S. We disagree.

       Again, the jury found that D&S defrauded Morgan.              Furthermore, entering

judgment favorable to Morgan on a claim other than fraud did not ipso facto vitiate that

finding or otherwise mean that D&S committed no fraud upon Morgan.

       When a party tries a cause on alternative theories and receives favorable

findings on both, he has a right to judgment on the theory entitling him to the greatest

recovery. Hargrove v. Trinity Universal Insurance Co., 152 Tex. 243, 256 S.W.2d 73

(1953) (holding that when a party tries a case on alternative theories of recovery and a

jury returns favorable finding on two or more theories, the party has a right to judgment

on the theory entitling him to the greatest relief). Indeed, where the prevailing party fails

to elect a remedy, the trial court utilizes the findings affording the greater recovery and

renders judgment accordingly. Drury Southwest, Inc. v. Louie Ledeaux #1, Inc., 350

S.W.3d 287, 293 (Tex. App.—San Antonio 2002, pet. denied). Moreover, a party does

not necessarily waive a theory of recovery by electing to recover under only one. Id.;

see Boyce Iron Works v. Southwestern Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988)

(holding that when there are favorable findings on alternative theories, the prevailing

party may seek recovery under an alternative theory if the judgment is reversed on

appeal); Strebel v. Wimberly, 371 S.W.3d 267, 286 (Tex. App.—Houston [1st Dist.]

2012, pet. denied) (holding that although the trial court entered judgment on the jury’s

breach of fiduciary duty finding which was overturned on appeal, the jury also found in



                                             5
favor of Wimberly in response to oppression questions and the case was remanded for

a consideration of the alternative findings).

       Simply put, entering judgment on one theory does not automatically vitiate

favorable findings encompassing alternative grounds of recovery. So, Fuller did not

establish as a matter of law that the manner in which the prior judgment was entered

alone barred Morgan from pursuing his effort to pierce the corporate veil. See Rhone-

Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999) (stating that the summary

judgment movant must show himself entitled to judgment as a matter of law).

       Accordingly, the summary judgment denying recovery against D&S is affirmed.

The summary judgment denying recovery against Fuller is reversed, and that cause is

remanded to the trial court.



                                                    Brian Quinn
                                                    Chief Justice




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