                             In The
                       Court of Appeals
         Sixth Appellate District of Texas at Texarkana


                            No. 06-15-00051-CV



          MARY FLENTGE MCAULEY, WILLIE O. FLENTGE, JR.,
              AND CHARLES RAY FLENTGE, Appellants

                                     V.

CARL DEAN FLENTGE, INDEPENDENT EXECUTOR OF THE ESTATE OF LAVERNA
   FLENTGE, CARL DEAN FLENTGE, DAVID FLENTGE AND DANIEL JUNEK,
              INDEPENDENT EXECUTOR OF THE ESTATE OF
    WILLIE OTTO FLENTGE, SR., INDIVIDUALLY, AND AS SHAREHOLDERS
             AND ON BEHALF OF W.L. RANCH, INC., Appellees



                   On Appeal from the 21st District Court
                         Burleson County, Texas
                         Trial Court No. 26,704




                Before Morriss, C.J., Moseley and Burgess, JJ.
                  Memorandum Opinion by Justice Burgess
                                      MEMORANDUM OPINION
           Willie Otto Flentge, Sr. (Willie Sr.), Willie O. Flentge, Jr. (Willie Jr.), and Carl Dean

Flentge (Carl) formed W.L. Ranch, Inc. (the Ranch), in 1974. At the organizational meeting, the

Ranch issued a total of 700 shares of stock, 100 shares each to (1) Willie Sr., (2) his wife, Laverna,

and their five children, (3) Willie Jr., (4) Carl, (5) Mary Louise Flentge (Mary),1 (6) David Lynn

Flentge (David), and (7) Charles Ray Flentge (Charles). Willie Sr. served as the President and

director of the Ranch until his death in August 2010. Pursuant to the corporate by-laws, transfer

of the stock was restricted by a right of first refusal held by the Ranch.

           Almost immediately after Willie Sr.’s death, a dispute arose between the shareholders for

control of the Ranch based on competing interpretations of the transfer restriction. Specifically,

the shareholders disagreed about whether Willie Sr. could transfer his 100 shares in the Ranch to

Laverna under his will without first offering them for sale to the Ranch. Appellees/Cross-

Appellants Laverna,2 Carl, David, and Daniel Junek (Junek), the independent executor of Willie’s

estate (collectively the Flentge Shareholders), asserted that the transfer restriction did not apply to

testamentary transfers and that Willie Sr.’s transfer to Laverna was valid, thereby preserving that

group’s majority of the shares and control of the Ranch.

           Appellants/Cross-Appellees Mary, Willie Jr., and Charles (collectively the McAuley

Shareholders) asserted that the transfer restriction did apply to testamentary transfers and that the




1
    Subsequent to the organizational meeting Mary married and changed her name to Mary Flentge McAuley.
2
 Laverna died during the pendency of this suit and Carl, as independent executor of the estate of Laverna, was
substituted for her.

                                                         2
testamentary transfer to Laverna was invalid, giving neither party a majority of the shares. The

McAuley Shareholders also asserted that they were elected corporate directors at a shareholder

meeting held shortly after Willie Sr.’s death and, therefore, controlled the Ranch. The Flentge

Shareholders denied the validity of the purported shareholder meeting and director election. They

filed suit against the McAuley Shareholders seeking a declaratory judgment that, inter alia, Willie

Sr.’s shares were not subject to the Ranch’s right of first refusal. The Flentge Shareholders also

asserted a cause of action against the McAuley Shareholders for breach of fiduciary duties relating

to actions taken by them as purported directors. The McAuley Shareholders denied the Flentge

Shareholders’ allegations and filed a counter-claim seeking a declaratory judgment and an

accounting and asserting causes of action for bad faith, breach of contract, breach of fiduciary

duties, defamation, and costs and attorney fees for filing a frivolous petition under Section 15.51

of the Texas Business and Commerce Code.

        During the course of litigation, the parties filed competing motions for partial summary

judgment on the applicability of the transfer restriction to Willie Sr.’s testamentary transfer of his

shares to Laverna. The 21st Judicial District Court of Burleson County3 granted the Flentge

Shareholders’ motion for partial summary judgment and denied the McAuley Shareholders’

motion for partial summary judgment. The case proceeded to trial on the Flentge Shareholders’

claims that the McAuley Shareholders breached their fiduciary duties as officers of the Ranch. At

the subsequent jury trial, however, the trial court granted a directed verdict against the Flentge


3
 Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
                                                       3
Shareholders’ breach of fiduciary duty claims. Accordingly, by virtue of its amended order

granting partial summary judgment, the trial court entered a declaration in favor of the Flentge

Shareholders holding that Willie Sr.’s shares were not subject to the Ranch’s right of first refusal.

By virtue of its directed verdict, the trial court also granted a take-nothing judgment in favor of the

McAuley Shareholders on the Flentge Shareholders’ claims for breach of fiduciary duty.

Consequently, the trial court entered a final judgment granting the Flentge Shareholders attorney

fees related to their declaratory judgment claims only.

       In their appeal, the McAuley Shareholders assert that the trial court erred in denying their

partial summary judgment motion and in granting the Flentge Shareholders’ motion. The Flentge

Shareholders cross-appeal, asserting that the trial court erred in granting the directed verdict

because there is sufficient evidence to raise the following fact issues: (1) that the McAuley

Shareholders breached their fiduciary duties to the Ranch and (2) that the McAuley Shareholders

obtained a benefit resulting from their breach. The Flentge Shareholders also assert that the trial

court’s directed verdict prevented them from presenting a claim for reimbursement of attorney fees

and expenses.

       We find (1) that the McAuley Shareholders waived their complaint that summary judgment

was improper by failing to brief all of the summary judgment grounds asserted at the trial court

and (2) that there was insufficient evidence to raise a fact issue of whether the McAuley

Shareholders obtained a benefit resulting from their breach of fiduciary duties. Therefore, we

affirm the judgment of the trial court.



                                                  4
I.          Background Facts

            A.       The Original Corporate Leadership
            When the Ranch was organized in 1974, each of the shareholders was elected as an officer:

Willie Sr. as president; Laverna as first executive vice-president; Willie Jr. and Carl as second

executive vice-presidents; Mary as secretary; and David and Charles as third executive vice-

presidents.4 In addition, the first board of directors consisted of Willie Sr., Willie Jr., and Carl.

Willie Sr. served as president of the Ranch until his death in August 2010. Mary, Charles, and

Willie Jr. have continued to serve in their respective offices since that time.5

            Apparently concerned about conflict within his family and the operation of the Ranch after

his death, Willie Sr. and Laverna entered into an agreement with their banker, Junek. The

agreement provided that, upon the death of both Willie Sr. and Laverna, Junek would serve as

president of the Ranch. Junek saw his proposed role under the agreement as a peacekeeper. At a

corporate meeting held about six weeks before his death, Willie Sr. introduced Junek to his



4
    Charles testified that, although he had the office of third vice-president, he had no duties.
5
 The parties also disagree about the identity of the corporate directors from 2007 until Willie Sr.’s death in 2010. The
McAuley Shareholders testified that Willie Sr., Mary, and Charles were elected as the new board of directors on
September 16, 2007, and point to the unsigned minutes of a corporate meeting held on that date. This claim was
disputed by the Flentge Shareholders, who maintain that Willie Sr. and Laverna were the only board members elected
on that date. They point to articles of amendment filed on April 15, 2008, which provide that the number of directors
of the Ranch is two and name Willie Sr. and Laverna as the two directors. They also point to franchise tax information
forms for 2008 and 2009 that recite that Willie Sr. and Laverna are the directors. They also note that the parties
generally agree that the amended articles were introduced at a corporate meeting on April 26, 2009, and that nobody
objected to them, or to Willie Sr. and Laverna being the only directors. Finally, they note that, in September 2007,
Willie Sr., individually and as president of the Ranch, and Laverna executed an oil, gas, and mineral lease with Clayton
Williams Energy (Williams Energy) covering the 260 acres owned by the Ranch. Nevertheless, the parties do not
allege that any actions taken by the corporation prior to Willie Sr.’s death were invalid, and because the trial court
granted the McAuley Shareholders’ motion for directed verdict, the trial court never reached the issue of whether the
purported 2007 board of director elections were valid. Therefore, we take no position on the validity of the purported
2007 board of director elections.
                                                               5
children as the person who would be the executor of his will and who would run the Ranch. Willie

Sr. passed away on August 30, 2010.

         B.       Events After Willie Sr.’s Death

                  1.        The November 20, 2010, Meeting

         Within a month of Willie Sr.’s passing, the McAuley Shareholders began sending agendas

and notices for proposed meetings. A corporate meeting, which was designated as a board

meeting, was held on November 20, 2010 (the November 20 Meeting).                                       The McAuley

Shareholders were all in attendance. None of the Flentge Shareholders appeared in person, and

the parties dispute whether Laverna and David attended by telephone. The minutes of the meeting,

which were only signed by the McAuley Shareholders, recite that Laverna was in attendance and

that David attended by telephone.6 Nevertheless, according to the minutes of that meeting,

Laverna, Mary, and Charles were elected as directors. 7 Also contained in the minutes is a

statement attributed to Willie Jr. that Williams Energy was conducting a title search to determine

how to divide the acreage on two producing oil wells.8


6
 The Flentge Shareholders dispute Laverna’s attendance, and David denies both that it was a corporate meeting and
that he was informed that it was a corporate meeting. Also, no one representing the shares owned by Willie Sr. was
in attendance. It is undisputed that Carl did not attend in any manner.

7
 Mary’s and Charles’ election to the board of directors was later nullified by the trial court for failure to follow the
corporate bylaws. This action by the trial court is not challenged on appeal.
8
 At the time, there were two producing oil wells on which the parties were receiving royalties. In the November 20,
2010, minutes these wells are referred to as the “W L Ranch, Inc. 1 H” and the “W L Ranch 2 H” wells. It was later
clarified that the first well (W.L. Ranch Unit #1H) was drilled on Ranch property in the Austin Chalk formation and
that a second well (Ayers-Jackson Unit #1) was drilled on adjoining acreage with which it was unitized. An agreed
order was entered by the trial court on February 7, 2012, that required Williams Energy to pay all money held or
payable in the future to the Ranch or any of its shareholders into the registry of the trial court. In the order, the wells
are referred to respectively as the Williams Energy Property No. 91442-001, commonly known as the W.L. Ranch
Unit #1H, and the Williams Energy Property No. 06293-001, commonly known as the Ayers-Jackson Unit #1. These
                                                            6
                 2.       Actions Taken By the McAuley Shareholders After the November 20,
                          2010, Meeting

        One week later, Mary and Charles, representing themselves to be directors, wrote to

Citizens State Bank in Caldwell requesting internet access to the Ranch’s bank account and copies

of the last three years’ statements. This attempt was not successful. Subsequently, the McAuley

Shareholders opened a separate bank account in the name of the Ranch at Prosperity Bank in

Dripping Springs. This account was funded by the personal funds of Mary, Charles, and Willie

Jr., and no corporate funds were ever transferred to the Prosperity Bank account. It was explained

that the account was opened to allow Mary to pay expenses associated with her office as secretary

of the Ranch. It is undisputed that the McAuley Shareholders did not disclose the opening of this

account to Laverna, Carl, David, or Junek, who had been appointed executor of Willie Sr.’s estate.

        In addition, in December 2010, Mary filed a statement of change of registered office/agent

with the Texas Secretary of State’s Office, designating herself as the new registered agent and

providing her home address as the new registered office address of the Ranch. Mary admitted that

no document, vote, approval, or agreement existed appointing her as the registered agent or

designating her address as the registered office of the Ranch. In October 2011, Mary filed

purported articles of amendment with the Secretary of State, again naming herself as the new

registered agent and providing her home address as the new registered office address of the Ranch.

She admitted that she was not the registered agent when she filed this document.




will be referred to as the “W.L. Ranch 1H Well” and the “Ayers-Jackson Well,” respectively. Subsequently, a third
producing well was drilled in the Eagle Ford formation (the Buckman Well).
                                                       7
                     3.       The McAuley Shareholders’ Correspondence and Dealings with
                              Williams Energy

            Sometime in January 2011, a letter containing Mary’s signature9 was sent to Williams

Energy. The letter represented that Mary had been appointed the temporary registered agent of

the Ranch at the November 20 meeting and requested that all correspondence, documentation,

checks, and notices be forwarded to her. Mary admitted that she had not been appointed temporary

registered agent at the November 20 meeting. In a letter dated January 24, 2011, and referencing

the W.L. Ranch 1H Well, Williams Energy acknowledged receipt of the letter and requested

additional documentation of Mary’s appointment as registered agent. In addition, the letter stated,

            We must also advise you that the royalties for this and all owners in the above
            referenced unit have been suspended pending reformation of the well. Once we
            have received a division order, title opinion, and the documentation requested
            above we will send out new division orders on the reformed well.

            Charles explained that for the W.L. Ranch 1H Well, Williams Energy wanted all the

shareholders to reassign their percentages to it so it could drill the second well. He testified that

they did so and that Williams Energy would “reform the land,” drill the second well, and then pay

them the money they were holding back. Willie Jr. testified that, sometime after his father’s death,

he communicated with Williams Energy to have royalties paid in a different manner than they

were at the time of his father’s death. There was no testimony regarding the substance of this

communication.

            David testified that he met with some staff members of Williams Energy either before or

after Christmas 2010 or 2011 because the royalty payments to the Ranch and the shareholders had


9
    Although Mary admitted that the letter contained her signature, she denied writing, signing, or sending the letter.
                                                              8
stopped coming in October and he wanted to know why. He stated that the Williams Energy staff

gave him a “Secretary of State print page,” a document stating Mary was the agent and two other

unidentified documents. Although he expressed alarm and perplexity as a result of the meeting,

he stated that he did not gain any other understanding from the meeting.

       On January 20, 2011, Mary and Charles executed and filed a deed of conveyance and

assignment purporting to convey royalty rights from the Ranch to Willie Sr., Laverna, Willie Jr.,

Carl, Charles, Mary, and David, with each receiving a fourteen percent interest. Charles testified

that this deed was sent to Williams Energy, but there is no testimony of when that occurred. On

October 21, 2011, Mary, as registered agent and director of the Ranch, and Charles and Willie Jr.

as authorized officers and directors of the Ranch, executed and filed, a deed for correction and

clarification of conveyance and assignment (the Correction Deed), purporting to correct the first

deed. The Correction Deed is purported to be a conveyance of the disbursements of payments

from royalty interests in the Ayers-Jackson Well from the Ranch to Mary, Charles, Willie Jr., Carl,

and David, each with twenty percent. It also states that the conveyance was approved by a majority

of the stockholders and board of directors at the November 20 meeting. Mary and Charles admitted

that the conveyance was not approved at that meeting and that Carl, David, Laverna, and Junek

were not notified of the filing of the Correction Deed.

       In addition, Charles testified that, shortly after Willie Sr.’s death, he picked up a log splitter

from the farm, explaining that everyone uses the ranch equipment. He stated that he had not

returned it because he was afraid for his life, and he was advised by the sheriff’s department not



                                                   9
to go back to the farm. He also testified that he has a tractor10 and some implements belonging to

the Ranch in his possession, but that he did not remove them from the farm. David testified that,

when he asked Charles to return these items, Charles told him that “Daddy told me I could have

[them].”

            C.       Litigation History

            The Flentge Shareholders filed this present action on November 4, 2011. As previously

noted,11 after this suit was filed, the royalty payments from the W.L. Ranch 1H Well and the Ayers-

Jackson Well were paid into the registry of the trial court. Since that time, there have been periodic

disbursements from the funds in the registry of the court to Willie Jr., Charles, Mary, Carl, and

David, in excess of $100,000.00, each. Royalty payments from the Buckman Well are being held

in suspense by Williams Energy.

II.         Analysis

            A.       The Order Granting the Flentge Shareholders’ Motion for Partial Summary
                     Judgment

            The last will and testament of Willie Sr. bequeathed and devised all of his property,

including his 100 shares of stock in the Ranch, to Laverna. In their pleadings, the Flentge

Shareholders sought a declaratory judgment that Willie Sr.’s testamentary transfer of the shares

was not subject to any restrictions contained in the bylaws of the Ranch. The provision in the

original bylaws that is the source of this controversy provides, in pertinent part:




10
     David testified that the tractor was an old Massey-Ferguson garden tractor.
11
     See supra note 3.
                                                            10
                        RESTRICTION ON TRANSFER OF SHARES

        No stockholder shall be permitted to assign, sell, mortgage, pledge or otherwise
        transfer or encumber their shares of stock to be issued hereunder, except that
        stockholders shall have the right to sell their stock upon compliance with the
        following terms and condition

                        (1)     Any shareholder desiring to sell his stock shall first
                offer the sale of his stock to the Corporation upon the terms and
                conditions to be stipulated in such offer at par value ($1.00) per
                share. Such offer shall be communicated by the stockholder
                offering to sell his stock by registered or certified mail addressed to
                the President of the Corporation with a copy of the offer to the
                Secretary of the Corporation.

        The Flentge Shareholders filed a motion for partial summary judgment asking the trial

court to declare that Willie Sr.’s testamentary transfer was not subject to any restriction. The

McAuley Shareholders filed a counter-motion for partial summary judgment asking the trial court

to declare testamentary transfers subject to the Ranch’s right of first refusal. The trial court granted

the Flentge Shareholders’ motion without stating the grounds for its ruling. On appeal, the

McAuley Shareholders assert that the trial court erred in denying their motion and granting the

Flentge Shareholders’ motion, arguing that the restrictions on transferability contained in the

bylaws apply to testamentary transfers. The Flentge Shareholders respond that the McAuley

Shareholders have not addressed all of the grounds asserted in their motion. We agree and

therefore affirm the trial court’s order granting the Flentge Shareholders’ motion for partial

summary judgment.

        The Flentge Shareholders’ motion for partial summary judgment asserted two grounds

upon which partial summary judgment was sought: (1) that the restriction on “other transfers”

contained in the bylaws does not apply to testamentary transfers and (2) that the restriction includes
                                                  11
a blanket prohibition on all transfers, other than sales and, therefore, that any purported restriction

on testamentary transfers is void as an unreasonable restraint on alienation. Since the trial court’s

order granting partial summary judgment did not specify a particular ground on which the motion

was granted, the McAuley Shareholders were required to negate all grounds on appeal. Navarro

v. City of Waco, No. 10-08-00320-CV, 2010 WL 4351180, at *1 (Tex. App.—Waco Nov. 3, 2010,

no pet.) (mem. op.) (citing Peeler v. Baylor Univ., No. 10-08-00157-CV, 2009 WL 2964375, at *2

(Tex. App.—Waco Sept. 16, 2009, no pet.) (citing Collins v. City of Corpus Christi, 188 S.W.3d

415, 423 (Tex. App.—Corpus Christi 2006, no pet.))). “If the appellant fails to negate each ground

on which the judgment may have been rendered, we must uphold the summary judgment.” Id.

(citing Peeler, 2009 WL 2964375, at *2); see also Nall v. Plunkett, 404 S.W.3d 552, 556–57 (Tex.

2013) (holding appellant waived ground for summary judgment not argued on appeal and

reinstating trial court’s judgment).

       In their brief, the McAuley Shareholders address the Flentge Shareholders’ contention that

testamentary transfers are excluded from “other transfers” as that phrase is used in the corporate

bylaws. However, they fail to challenge the Flentge Shareholders’ summary judgment ground that

as applied to testamentary transfers, the restriction constitutes an unreasonable restraint on

alienation. We conclude that the McAuley Shareholders have waived this point of error by failing

to brief it, and we affirm the trial court’s order granting partial summary judgment to the Flentge

Shareholders. See Nall, 404 S.W.3d at 556–57; Navarro, 2010 WL 4351180, at *1; Peeler, 2009

WL 2964375, at *2.



                                                  12
       B.      The Trial Court’s Directed Verdict on the Flentge Shareholders’ Claims For
               Breach of Fiduciary Duty

       In their cross-appeal, the Flentge Shareholders assert that the trial court erred in granting

the McAuley Shareholders’ motion for directed verdict on their breach of fiduciary duties claims,

arguing that there is sufficient evidence to raise fact issues regarding (1) whether the McAuley

Shareholders breached their fiduciary duties and (2) whether the McAuley Shareholders obtained

benefits as a result of their breach of fiduciary duties. In addition, the Flentge Shareholders

complain that by directing a verdict on their breach of fiduciary duty claims, the trial court’s verdict

prevented them from presenting to the jury their claim for reimbursement of attorney fees and

expenses under the Texas Business Organizations Code. Since we find that the trial court did not

err in entering a directed verdict on the Flentge Shareholders’ breach of fiduciary duties claims,

we need not address their attorney fees issue.

               1.      Standard of Review

       “In reviewing a directed verdict, we decide whether there is any evidence of probative

value to raise an issue of material fact on the question presented, and we review the evidence in

the light most favorable to the person suffering the adverse judgment.” Exxon Corp. v. Emerald

Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex. 2011); Szczepanik v. First S. Trust Co., 883

S.W.2d 648, 649 (Tex. 1994) (per curiam); see United States Invention Corp. v. Betts, No. 10-14-

00281-CV, 2016 WL 229378, at *2 (Tex. App.—Waco Jan. 14, 2016, pet. filed). The presence of

some evidence “will defeat the directed verdict.” Exxon Corp., 348 S.W.3d at 220. Absent a

defect in pleadings, a directed verdict may be proper in two situations: (1) “when a plaintiff fails

to present evidence raising a fact issue essential to the plaintiff’s right of recovery” or (2) when
                                                  13
“the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff’s cause of

action.” Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000);

Betts, 2016 WL 229378, at *2.

       A “no evidence” point will be sustained only if there is a complete absence of evidence

establishing a vital fact, the only evidence offered to prove a vital fact cannot be considered due

to a rule of law or evidence, there is less than a scintilla of evidence to prove the vital fact, or the

opposite of the vital fact is conclusively established. Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex.

2010); Betts, 2016 WL 229378, at *2. More than a scintilla of evidence exists when the evidence

permits the conclusions of reasonable and fair-minded people to differ. Merrell Dow Pharms.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). “Less than a scintilla of evidence exists when

the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc.,

650 S.W.2d 61, 63 (Tex. 1983)). In our review, we credit favorable evidence if a reasonable fact-

finder could do so and disregard contrary evidence unless a reasonable fact-finder could not. City

of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Betts, 2016 WL 229378, at *2. We may

affirm the trial court’s directed verdict on any basis if it can be supported by the record. Reyna v.

First Nat’l Bank in Edinburg, 55 S.W.3d 58, 69 (Tex. App.—Corpus Christi 2001, no pet.).

               2.      Analysis

       The Flentge Shareholders filed their breach of fiduciary duties claims only on behalf of the

Ranch. “Directors, or those acting as directors, owe a fiduciary duty to the corporation in their

directorial actions.” Ritchie v. Rupe, 443 S.W.3d 856, 868 (Tex. 2014) (citing Int’l Bankers Life

                                                  14
Ins. Co. v. Holloway, 368 S.W.2d 567, 577 (Tex. 1963), superseded by statute on other grounds,

TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(5)). Corporate officers also owe a fiduciary duty to

their corporation. Lifshutz v. Lifshutz, 199 S.W.3d 9, 18 (Tex. App.—San Antonio 2006, pets.

denied). These fiduciary duties include the duties of obedience, loyalty, and due care. Loy v.

Harter, 128 S.W.3d 397, 407 (Tex. App.—Texarkana 2004, pets. denied) (citing Gearhart Indus.,

Inc. v. Smith Int’l, Inc., 741 F.2d 707, 719 (5th Cir. 1984)). Further, officers and directors may

not usurp corporate opportunities for their personal gain. Id. at 408. In addition, they must act in

good faith and deal fairly with the corporation. Kinzbach Tool Co. v. Corbett-Wallace Corp., 160

S.W.2d 509, 512 (Tex. 1942).

         In order to prevail in a cause of action for breach of fiduciary duties, the claimant must

show (1) the existence of a fiduciary relationship, (2) a breach by the defendant of its fiduciary

duties, and (3) that the defendant’s breach resulted in either (a) injury to the plaintiff, or (b) a

benefit to the defendant. Graham Mortg. Corp. v. Hall, 307 S.W.3d 472, 479 (Tex. App.—Dallas

2010, no pet.); Priddy v. Rawson, 282 S.W.3d 588, 599 (Tex. App.—Houston [14th Dist.] 2009,

pet. denied). Once the plaintiff shows that the defendant benefited by an alleged breach of his

fiduciary duties, the burden of proof shifts to the defendant to show that his dealing was fair,

honest, and equitable.12 See Swenson, 517 S.W.2d at 260; Archer v. Griffith, 390 S.W.2d 735, 740

(Tex. 1964).


12
  The Flentge Shareholders argue that the burden of proof shifts to the defendant whenever the defendant places
himself in a position in which his self-interest might conflict with his obligations as a fiduciary, even without showing
a benefit to the fiduciary, citing Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257 (Tex. 1974), and Slay v.
Burnett Trust, 187 S.W.2d 377, 387–88 (Tex. 1945). However, in Swenson, the plaintiffs’ brother, in whom they had
placed their confidence to handle their business affairs for over forty years, was also a director and officer of the
museum to which the plaintiffs had, on the recommendation of their brother, made a sizeable gift. Swenson, 517
                                                          15
         In their brief, the Flentge Shareholders point to Mary’s actions (1) claiming to be a board

member and the Ranch’s registered agent, (2) communicating with Williams Energy, (3) opening

the Prosperity Bank account in the Ranch’s name, (4) signing the Correction Deed (allegedly to

increase her share of the revenue in the Ayers-Jackson Well to twenty percent), and (5) failing to

disclose these actions to the Flentge Shareholders as evidence creating a fact issue on their breach

of fiduciary duty claims against Mary. Assuming, without deciding, that these actions were

breaches of her fiduciary duties, the Flentge Shareholders point to no evidence, and we have found

none, to show Mary benefited in any way, or that the Ranch was injured, from these actions.

         Although Mary represented herself to be the registered agent when she filed the Ranch’s

annual franchise tax report, this neither harmed the Ranch, nor provided Mary with any tangible

benefit.    Her only communication with Williams Energy requested information about their

royalties, but there is no evidence that Williams Energy provided this information. 13 Further, the

undisputed evidence is that no corporate funds were placed in the Prosperity Bank account and

that it was only used to pay for Mary’s expenses related to her duties as secretary of the




S.W.2d at 259–60. Under those circumstances, the Texas Supreme Court noted that in opposing the Plaintiff’s suit to
set aside the gift, the museum, which had benefited from the transaction, had the burden to show that the transaction
was fair and reasonable. Id. at 260. In Slay, certain trustees of the Burnett Trust personally profited from a loan made
by the Trust to a third party. Slay, 187 S.W.2d at 386. Under these facts, the court noted that

         the duty of loyalty on the part of the trustee [prohibits] him from using the advantage of his position
         to gain any benefit for himself at the expense of his cestui que trust and from placing himself in any
         position where his self-interest will or may conflict with his obligations as trustee.

Id. at 387–88. Thus, in both of these cases, a benefit from the breach of fiduciary duties was shown, not merely that
the fiduciary had placed himself in a position in which his self-interest might conflict with his fiduciary duties.
13
  Although the Flentge Shareholders claim that Mary communicated with Williams Energy about diverting oil
revenues due the Ranch, there is no evidence supporting this claim.
                                                          16
corporation. In addition, although the Flentge Shareholders claim that the Correction Deed

increased Mary’s interest in oil revenues from fourteen percent to twenty percent, it is unclear that

the deed was effective to do so.14 Finally, while it is undisputed that the Correction Deed was

executed by the McAuley Shareholders and filed of record, there is no evidence that Williams

Energy made any change in the division of royalties paid to the McAuley Shareholders as a result

of the deed.

        The Flentge Shareholders point to Willie Jr.’s (1) participation in the opening of the

Prosperity Bank account, (2) his failure to get Laverna’s approval for the articles of amendment

the McAuley Shareholders filed, (3) Mary’s appointment as registered agent, and (4) the execution

of the Correction Deed as evidence creating a fact issue on their breach of fiduciary duty claims

against Willie Jr. As with Mary, there is no evidence that Willie, Jr. benefited from, or that the

corporation was harmed by, any of these actions. In addition, the Flentge Shareholders point to

Willie Jr.’s communications with Williams Energy for the purpose of having royalty payments

changed to support their breach of fiduciary duty claim. However, there is no evidence that

Williams Energy took any action as a result of this communication.

        Finally, the Flentge Shareholders point to Charles’ (1) claims to be a director, (2) signing

of the Correction Deed, and (3) participation in opening the Prosperity Bank account as evidence

creating a fact issue on their breach of fiduciary duty claims against Charles. As with Mary and




14
  The Correction Deed is ambiguous, at best. While expressing an intent to assign disbursements of payments from
royalty interests of the Ranch in the Ayers-Jackson Well, it goes on to except the twenty percent interests of Willie
Jr., Charles, Carl, Mary, and David from any such assignment.
                                                         17
Willie Jr., there is no evidence that Charles benefited from, or that the Ranch was harmed by, these

actions.

       In addition, the Flentge Shareholders point to Charles’ appropriation of corporate property.

Charles testified that, after his father’s death, he removed a logsplitter from the farm, explaining

that everyone uses the ranch equipment. He stated that he had not returned it because he was afraid

for his life and that he was advised by the sheriff’s department not to go back to the farm. He also

testified that he has a tractor and some implements belonging to the Ranch in his possession, but

that he did not remove them from the farm. There was no testimony explaining when, or under

what circumstances, these items came to be in his possession. However, when David asked him

to return the equipment, Charles claimed that their father had said he could have it.

       An officer or director is accountable for corporate property under his control, and if he

diverts corporate property for his own use, he breaches his duty of loyalty to the corporation. Sw.

Livestock & Trucking Co. v. Dooley, 884 S.W.2d 805, 809 (Tex. App.—San Antonio 1994, writ

denied). For instance, in Dooley, two officers who diverted corporate funds to pay $420,000.00

in personal expenses breached their fiduciary duties to the corporation. Id. The testimony in this

case shows that, during the history of this family-owned corporation, it was run with few corporate

formalities. The undisputed testimony establishes that no minutes of any official meetings of the

board of directors were kept, either before or after the death of Willie Sr.

       Further, the testimony shows that Willie Sr. and Laverna executed the Williams Energy

lease without the approval of the board of directors. Articles of amendment were executed and

filed by Willie Sr. as president, without the approval of the board of directors and the shareholders

                                                 18
as required by the Business Corporations Act in effect at that time.15 Rather, when the amended

articles and bylaws were presented, none of the shareholders objected. Minutes of the shareholders

meetings were allegedly kept, but were not attested to by the secretary or any other officer. After

Willie Sr. died, this pattern continued.

         Construing the evidence in the light most favorable to the Flentge Shareholders, the

evidence shows that, after Willie Sr. died, only one director remained, Laverna, who was also the

first executive vice-president. Even though the bylaws required at least two directors, no action

was taken by the Ranch or its shareholders to appoint new directors or to elect a new president.

At the time of trial, there was still no president. David testified that he has been living on the

property owned by the Ranch since April 2011 under an agreement with his mother to be

operations manager. Without a functioning board of directors, this agreement to occupy the

Ranch’s property as his personal residence could not have been approved by the board. Further,

there is no evidence that this agreement was approved by the shareholders, although they

apparently acquiesced to David’s occupation of Ranch property.

         Moreover, the undisputed testimony shows that the family members regularly used the

Ranch’s equipment for their personal use. Within the context of a family-owned corporation that

historically ignores corporate formalities, we believe there is a distinction between the customary

activity of family members using corporate property and the wrongful diversion of corporate assets

to the exclusive personal use of the officer or director that rises to the level of a breach of a


15
  The Ranch was organized under the Business Corporations Act, which required that the board of directors adopt a
resolution proposing amendments to the articles and that the resolution receive an affirmative vote of the holders of
at least two-thirds of the outstanding shares entitled to vote. See Act of May 25, 1973, 63d Leg., R.S., ch. 545, § 1,
sec. 30, 1973 Tex. Gen. Laws 1486, 1505–06 (expired Jan. 1, 2010).
                                                         19
fiduciary duty, such as occurred in Dooley. On this record, we find there is no evidence that

Charles’ possession of the log splitter and other equipment was intended to be for his personal use,

to the exclusion of the Ranch. Therefore, there is legally insufficient evidence that Charles

breached any fiduciary duty to the Ranch.

         Under this record, we find that there is no evidence that any of the actions by the McAuley

Shareholders alleged to be breaches of fiduciary duties resulted in any injury to the corporation or

benefit to the McAuley Shareholders. Therefore, we overrule the Flentge Shareholders’ point of

error.

         We affirm the judgment of the trial court.




                                              Ralph K. Burgess
                                              Justice

Date Submitted:         March 11, 2016
Date Decided:           June 8, 2016




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