

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.


