Opinion
No. 3-92-010-CV.
August 11, 1993. Rehearing Overruled September 22, 1993.
Appeal from the 331st Judicial District Court, Travis County, Jerry Dellana, J.
Michael A. Scaperlanda, Cedar Park, for appellant.
Robert F. Neal, Law Offices of Robert F. Neal, Austin, for appellees.
Before CARROLL, C.J., and KIDD and B.A. SMITH, JJ.
Graham Holloway appeals from an adverse judgment rendered in favor of Rick Skinner and Alvin Ord's, Inc. (collectively, "appellees") on a tortious-interference-with-contract claim. Appellees alleged that Holloway, the president, a director, and a shareholder of Holligan, Inc. ("Holligan"), interfered with a contract entered into by appellees and Holligan. A jury found in favor of appellees on the tortious-interference claim, and the trial court, after denying Holloway's motion for judgment non obstante veredicto (n.o.v.), rendered judgment on the verdict awarding appellees actual and punitive damages. On appeal, Holloway contends that his status as president, director, and shareholder of Holligan shields him from liability for interfering with the contract between appellees and Holligan. We will affirm the trial court's judgment.
BACKGROUND
Skinner was the original owner of Alvin Ord's, a sandwich-shop franchise. In 1981 Holloway and his father-in-law, Tom Culligan, approached Skinner with an offer to purchase Alvin Ord's. The three parties agreed to do business under the corporate name of Holligan, Inc., with Skinner contributing company-owned Alvin Ord's stores and franchise agreements, while Holloway and Culligan would contribute management skills and capital. Skinner received a promissory note from Holligan for $63,000, a percentage of the gross sales of the Alvin Ord's restaurants pursuant to a royalty agreement, a percentage of Holligan's stock, and a job with the corporation. During the sale negotiations, Skinner attempted and failed to obtain written personal guarantees from Holloway and Culligan on Holligan's obligations to Skinner. Nevertheless, Skinner, Holloway, and Culligan reached an agreement for the sale of Alvin Ord's and began doing business as Holligan, with Holloway serving as the corporation's president.
At completion of the sale, Holligan had five shareholders: Skinner, Holloway, Culligan, Mike Cook, and Mark Ritter. Cook and Ritter are not involved in this action.
From 1981 to 1984, Holligan sporadically maintained its obligations under the note and the royalty agreement. By 1984, relations between Skinner and Holloway had deteriorated, and Skinner left Holligan as an officer/employee. Holloway's annual salary was then approximately $24,000. Holloway's salary increased to $33,000 in 1985, and increased again to $44,500 in 1986. In 1985 Holligan's outside auditor questioned the corporation's continued viability, and, due to Holligan's economic situation, its largest secured creditor, United Bank of Texas, threatened foreclosure.
Culligan had died sometime before, and his wife, Jean, succeeded to his interest, including his large percentage of Holligan stock. In response to United Bank's pressure, Jean Culligan opted to purchase Holligan's debt from the bank and replace it as Holligan's largest secured creditor. She also sought to purchase Skinner's interest in Holligan in order to eliminate Holligan's ongoing debt to him. Skinner refused to sell his interest, and Holligan defaulted on its obligation to him in July 1985. Skinner sued Holligan for breach of its obligations under the note and the royalty agreement and secured a favorable judgment in June 1986. However, the judgment remained unsatisfied because Holligan filed for bankruptcy protection.
Subsequently, appellees filed the present suit claiming that Jean Culligan, Holloway, and Holloway's wife had tortiously interfered with Skinner and Holligan's contract by forcing the company to default on its obligations. The jury failed to find against Jean Culligan and Holloway's wife, but found that Holloway had tortiously interfered with Skinner's contract with Holligan. After denying Holloway's motion for judgment n.o.v., the trial court rendered judgment on the jury verdict awarding actual and punitive damages.
On appeal, Holloway contends that, as the president, a director, and a shareholder of Holligan, he could not have interfered with Skinner and Holligan's contract as a matter of law. In the alternative, Holloway argues that, even if he interfered with the contract between Skinner and the corporation, such interference was privileged as a matter of law because he was acting in his capacity as the president, a director, and a shareholder of Holligan in inducing the corporation to breach its obligations to Skinner under the note and the royalty agreement.
DISCUSSION
Typically, a tortious-interference action involves a third party who knowingly induces a party to a contract to breach, thereby damaging the other party to the contract. In such a case, the plaintiff must show that: (1) a contract subject to interference existed; (2) the act of interference was willful and intentional; and (3) such intentional act proximately caused plaintiff's damages or loss. Victoria Bank Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991). If the plaintiff can show these elements and establish a prima facie case of tortious interference, the burden shifts to the defendant to show that the interference was justified. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Armendariz v. Mora, 553 S.W.2d 400, 405 (Tex.Civ.App. — El Paso 1977, writ ref'd n.r.e.). To establish the affirmative defense of legal justification, the defendant must show that the interference (1) was done in a bona fide exercise of the defendant's own rights, or (2) the defendant's interest in the contract's subject matter was equal or superior to the plaintiff's. Sterner, 767 S.W.2d at 691.
Holloway maintains that, regardless of whether Skinner established a prima facie case for tortious interference, Holloway enjoys immunity from liability for his conduct due to his status as a corporate agent. Although we agree with the principle that, generally, corporate directors and officers will not be liable for tortiously interfering with the contracts of their corporate principal, we believe that Holloway states the proposition too broadly; such immunity is usually not absolute. See generally 3 William M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations Sec. 1001 (perm. ed. rev. vol. 1986).
The Texas Supreme Court has acknowledged that "an officer or director may not be held liable in damages for inducing the corporation to violate a contractual obligation, provided that the officer or director acts in good faith and believes that what he does is for the best interest of the corporation." Maxey v. Citizens Nat'l Bank, 507 S.W.2d 722, 726 (Tex. 1974) (emphasis added). As we understand this statement, when corporate officers and directors act against the interest of the corporation, act for their own pecuniary benefit, or act with the intent to harm the plaintiff in inducing the breach of contract, they can be held liable to the injured party. See 3 Fletcher Sec. 1001.
We recognize that one circumstance seems to justify holding a corporate agent absolutely immune from liability for interfering with the corporation's contract — when the interests of the corporation and its agent are so closely aligned as to be incapable of separation. See, e.g., Baker v. Welch, 735 S.W.2d 548, 549 (Tex.App. — Houston [1st Dist.] 1987, writ dism'd) (holding that corporation's president/sole shareholder was so closely aligned in interest with corporation as to be same entity, incapable of tortious interference); see also Schoellkopf v. Pledger, 778 S.W.2d 897, 903 (Tex.App. — Dallas 1989, writ denied) (relying on Baker in holding that individual defendants who wholly owned corporation were so closely aligned with corporate principal as to be same entity); cf. Deauville Corp. v. Federated Dep't Stores, Inc., 756 F.2d 1183, 1196-97 (5th Cir. 1985) (holding wholly-owned subsidiary incapable of conspiring with parent corporation because financial interests are identical). The theory underlying absolute immunity for a director in a "one person" corporation is that the director and the corporation are, in effect, identical, and a party cannot be liable for inducing him or herself to breach a contract. See 3 Fletcher Sec. 1001.
The sort of absolute immunity that whole owners/sole shareholders enjoy is, however, inapplicable here. In both Baker and Schoellkopf, the defendants entirely owned the corporation that breached the contract; in the instant case, Holloway owned only about forty percent of Holligan when the corporation defaulted on its obligation to Skinner. Because Holloway did not own all of Holligan, he lacked that unity of financial interest which would warrant considering him the same entity as Holligan. Under these circumstances, Holloway could act in his own best interest while acting against the corporation's. Consequently, we hold Holloway does not enjoy the immunity that shields sole shareholders from liability for tortious interference with Holligan's contracts.
We note that one Texas court has suggested that a ninety-percent shareholder may be so closely aligned with the corporation as to be the same entity. See Lone Star Ford, Inc. v. McCormick, 838 S.W.2d 734, 743 (Tex.App. — Houston [1st Dist.] 1992, writ denied). However, the reasoning underlying absolute immunity for a sole shareholder does not hold when a defendant does not wholly own the corporation, regardless of the division of ownership among various shareholders. Consequently, to the extent that Lone Star may be read to hold that less than sole ownership can assure a defendant director's absolute immunity from tortious-interference liability, we decline to follow it.
Stressing that no reported Texas case involving a tortious-interference claim against a corporate agent has held the defendant liable, Holloway concludes that such liability can never attach. We disagree. Although most of these cases loosely discuss the principle that corporate agents are generally not liable for inducing a breach of the corporation's contracts, they recognize the possibility that agents could be liable for tortiously inducing a breach if, for example, they had acted outside the scope of their agency, in furtherance of personal objectives, or with malice. See, e.g., John Masek Corp. v. Davis, 848 S.W.2d 170, 175 (Tex.App. — Houston [1st Dist.] 1993, writ denied); American Medical Int'l, Inc. v. Giurintano, 821 S.W.2d 331, 335-36 (Tex.App. — Houston [14th Dist.] 1991, no writ); Victor M. Solis Underground Util. Paving Co., Inc. v. City of Laredo, 751 S.W.2d 532, 535 (Tex.App. — San Antonio 1988, writ denied); Gonzalez v. Gutierrez, 694 S.W.2d 384, 388 (Tex.App. — San Antonio 1985, no writ); Eloise Bauer Assocs., Inc. v. Electronic Realty Assocs., Inc., 621 S.W.2d 200, 203-04 (Tex.Civ.App. — Texarkana 1981, writ ref'd n.r.e.); Southwestern States Oil Gas Co. v. Sovereign Resources, Inc., 365 S.W.2d 417, 422 (Tex.Civ.App. — Dallas 1963, writ ref'd n.r.e.). Moreover, Texas law recognizes that corporate agents who knowingly participate in a tortious act may be held individually liable without the need to pierce the corporate veil. Grierson v. Parker Energy Partners, 737 S.W.2d 375, 377-78 (Tex.App. — Houston [14th Dist.] 1987, no writ); Barclay v. Johnson, 686 S.W.2d 334, 336-37 (Tex.App. — Houston [1st Dist.] 1985, no writ).
An exception would seem to be Terry v. Zachry, 272 S.W.2d 157 (Tex.Civ.App. — San Antonio 1954, writ ref'd n.r.e.). The Terry court, relying on language from Said v. Butt, L.R. 3 K.B. 497, suggested that an agent who causes the breach of his principal's contract can never be liable for tortious interference because the agent is the principal's alter ego. The Texas Supreme Court has disapproved the Terry decision to the extent that it allocated to the plaintiff the burden of showing legal justification for interference with a contract. See Sterner, 767 S.W.2d at 690. We believe that Texas' jurisprudence has evolved beyond the theory that all corporate agents, regardless of whether they are sole shareholders, have absolute immunity to tortiously interfere with their principals' contracts; therefore, we decline to adopt the Terry approach.
We attribute the fact that no defendant corporate agent in this state has been held liable for tortious interference to the defendant's relatively low burden to show that the action inducing a breach was taken in good faith. "`Good faith' means no more than the intent to benefit the corporation and is not to be equated with a lack of personal interest in the financial welfare of the corporation." 3 Fletcher Sec. 1001. Stated differently, a defendant corporate agent may avoid liability by showing that interference was legally justified, either as a bona fide exercise of the defendant's own rights or because the defendant's interest in the contract's subject matter was equal to or superior to the plaintiff's. See, e.g., Victor M. Solis Underground, 751 S.W.2d at 535 (holding that City's consulting engineer, who had absolute right to reject nonconforming work on construction project, was legally justified in recommending to City that contractor be terminated, and hence was not liable for tortious interference). However, despite corporate agents' conditional privilege to interfere with the corporation's contracts, "the issue of a corporate officer's intent [in inducing a breach] has been characterized as a question of fact, with the mere fact of defendant's officer status being insufficient to support a motion for summary judgment." 3 Fletcher Sec. 1001.
One policy justification for providing corporate agents a relatively easy means to avoid liability for tortious interference with the corporation's contracts has been articulated as follows:
In so immunizing corporate directors from personal liability the law has proceeded on the theory that in so acting they are but the agents of the corporation and that the breach is that of the corporation, and hence it alone is answerable therefore, and, further, that to hold otherwise would tend to hinder directors of a corporation from acting on their judgment for the interest of their corporation and that they should be left free from possible liability of that kind.
Maxey, 507 S.W.2d at 726 (quoting 3 Fletcher Sec. 1001 (perm. ed.)).
In his first, second, third, and fifth points of error, Holloway essentially claims that, as a matter of law, his status as a corporate agent precludes the possibility that he could interfere with Holligan's contracts — specifically the note and the royalty agreement. Based on our determination that a corporate agent is subject to tortious-interference liability if that agent fails to act in good faith and in the corporation's best interest — that is, without legal justification — we overrule Holloway's first, second, third, and fifth points of error.
In his fourth point of error, Holloway advances an alternative argument — that, if he could and did interfere with appellees' contracts with Holligan, such interference was privileged as a matter of law because, as president, director, and a shareholder of Holligan, Holloway was making a bona fide exercise of his rights or because he had an interest in the contracts' subject matter equal or superior to appellees'. Holloway pleaded legal justification, which the Texas Supreme Court has held to be an affirmative defense. See Sterner, 767 S.W.2d at 690. Holloway failed, however, to secure a favorable jury finding that his interference was legally justified. Because Holloway now attacks an adverse finding upon which he had the burden of proof, we must examine the record for evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary; if no evidence exists to support the jury's answer, we must examine the entire record to see if the contrary proposition is conclusively established. See id.; see also William Powers, Jr. Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence", 69 Tex.L.Rev. 515, 523 (1991).
Although Holloway apparently pleaded his legal-justification argument as an affirmative defense, he suggests on appeal that, when a plaintiff brings a tortious-interference claim against a corporate agent, the plaintiff should have the burden to show that the agent induced the corporation's breach without justification. Sterner, however, holds the opposite. The court explained that legal justification is treated as a type of privilege and that the party asserting the privilege does not deny the interference, but rather seeks to avoid liability by asserting a countervailing right or interest in the contract. 767 S.W.2d at 689-90. From this the Sterner court concluded that legal justification is an affirmative defense to be pleaded and proven by the defendant. Id. at 690.
Sterner's reasoning is as applicable and compelling when the tortious-interference defendant is a corporate agent as when the defendant is not. Consequently, we decline Holloway's invitation to reallocate the burden of proof in tortious-interference actions brought against corporate agents.
The record reflects that under the royalty agreement, Holligan was to pay appellees a percentage of the gross sales from the Alvin Ord's stores. Holloway's own testimony reflects that appellees were entitled to the percentage regardless of whether the corporation was operating at a profit. The evidence reflects that the overriding royalty percentage from the sales at Alvin Ord's stores was due as it accumulated. Holligan defaulted on its financial obligations under the note and the royalty agreement in July 1985. During the next two years, Holloway increased his salary by $20,500. The fact that Holloway raised his salary at the time of the default suggests that funds were available to pay Holligan's debts under the contracts. This constitutes some evidence from which the jury could infer that Holloway was not acting in good faith for the best interest of the corporation in withholding payment due appellees under the royalty agreement and the note; but that, instead, Holloway was using his position at Holligan to derive a direct, personal, pecuniary benefit at the expense of the corporation's existing financial obligations to a creditor. Although, the defendant's burden is slight to show that he induced a breach of a corporate obligation in good faith with the intent to benefit the corporation, Holloway failed to meet that burden.
We note that, rather than citing record evidence to demonstrate conclusively that he had a legal right to default, Holloway relies on his status as a corporate agent and shareholder to support his position that his conduct was justified as a matter of law. We recognize that some cases have held stock ownership is a financial interest that may justify interference with a corporation's contract. See McCormick, 838 S.W.2d at 743; Baker, 735 S.W.2d at 549; Consolidated Petroleum Indus., Inc. v. Jacobs, 648 S.W.2d 363, 367 (Tex.App. — Eastland 1983, writ ref'd n.r.e.); Davis v. Alwac Int'l, Inc., 369 S.W.2d 797, 802 (Tex.Civ.App. — Beaumont 1963, writ ref'd n.r.e.). We believe, however, that the only status that can assure immunity from tortious-interference liability is defendant's total ownership of the corporation. Otherwise, legal justification is a matter for the fact finder to decide. Here, the jury determined that the evidence would not support Holloway's claims of legal justification. We have found in the record some evidence supporting the jury's determination that Holloway induced a breach without justification. Hence, the record before us does not conclusively establish that Holloway was legally justified to withhold the monies due appellees as payments under the note and the royalty agreement. Therefore, we overrule Holloway's fourth point of error. We also overrule Holloway's sixth point of error that the trial court erred in submitting the jury question concerning legal justification.
CONCLUSION
Having determined that some evidence exists to support the jury's findings that Holloway, without legal justification, induced Holligan to breach its obligations under the note and the royalty agreement, we affirm the trial court's judgment.