### No. 01

- 14

- 00537

- CV

_______________________________ IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS

_______________________________ FRANCIE WILLIS, Appellant,

v. BPMT, LLC, Appellee.

_______________________________ APPELLANT’S REPLY BRIEF

_______________________________ On Appeal from the 164th Judicial District Court, Harris County, Texas Hon. Alexandra Smoots

- Hogan, presiding Cause No. 2010

- 49638

_______________________________ Jane Langdell Robinson, State Bar No. 24062970 Tiffany Joudi, State Bar No. 24065479 Reed N. Smith, State Bar No. 24067875 A HMAD , Z AVITSANOS , A NAIPAKOS , A LAVI & M ENSING 1221 McKinney Street Houston, Texas 77010 Telephone: (713) 655

- 1101 Facsimile: (713) 655

- 0062 jrobinson@azalaw.com tjoudi@azalaw.com rsmith@azalaw.com

Counsel for Appellant Oral Argument Requested ACCEPTED 01-14-00537-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/30/2014 4:45:34 PM CHRISTOPHER PRINE

CLERK2 TABLE OF CONTENTS

TABLE OF CONTENTS ................................ ................................ ........................ 2 INDEX OF AUTHORITIES ................................ ................................ ................... 4 INDEX OF RECORD REFERENCES ................................ ................................ .. 7 RESPONSE TO APPELLEE’S STATEMENT OF FACTS ............................... 8 ARGUMENT ................................ ................................ ................................ ............ 9 I. BPMT’s reliance on Taylor and Seay to support its definition of “debt” is misplaced. (Response to Appellee’s Brief, part I
- A.) ....................... 9 A. BPMT fails to address the fact that Section 171.255 is a penal statute that must be interpreted strictly against liability.

............................. 9 B. The Taylor court recognized that but for the passage of Section 171 .109 (now repealed), it would have come out the other way

... 10 C. Not only did Seay interpret an entirely different statute, but the legislature rejected and repealed Seay’s interpretation of th e word “debt”

................................ ................................ ............................. 11 D. Levy v. Hunt , Cain v. State , and Ballard v. Quinn likewise do not support BPMT’s argument regarding the meaning of “debt” in this case ................................ ................................ ................................ . 14 E. BPMT’s argument that the debt was unliquidated because of the lease’s mitigation clause demonstrates one of the significant negative consequences of a ruling in BPMT’s favor.

.................... 16 II. BPMT does not show any reason why this Court should ignore the repeal of Section 171.109. (Response to Appellee’s Brief, part I
- B.) 19 III. BPMT does not provide any pe rsuasive reason why this Court should apply a definition of “debt” that has twice been rejected by the Texas Legislature. (Response to Appellee’s Brief, part I
- C.) ....................... 203 A. BPMT’s argument that all contracts payable after forfeiture of a corporate charter are subject to Section 171.255 is contradicted by decades of Texas case law.

................................ ............................. 20 B. It is possible to give meaning to both “create” and “incur” without mandating liability in this case.

................................ ...................... 22 IV. Contrary to BPMT’s argument, the Tax Code does not create individual liability in corporate officers for their employers’ franchis e taxes. (Response to Appellee’s Brief, part I
- D.) ................. 25 A. BPMT adds nothing new to its assertion regarding pre

- existing contractual obligations; the case law still holds that officers are only liable for debts contracted after forfeiture.

............................ 25 B. BPMT cannot rely

— implicitly or otherwise

— on an alter ego theory of liability against Ms. Willis because BPMT did not plead such a theory no r did it offer it in support of its motion for summary judgment.

................................ ................................ ........................ 27 C. The rule that this Court applies in this case will be the rule that governs the liability of innocent corporate officers under Section 171.255.

................................ ................................ .......................... 31 V. Francie Willis cannot be vicariously liable for debt

— including attorneys’ fees

— on which Urban Retreat is not liable. (Response to Appellee’s Brief, part II.) ................................ ................................ ....... 32 CONCLUSION AND PRAYER ................................ ................................ ........... 34 CERTIFICATE OF SERVICE ................................ ................................ ............ 35 CERTIFICATE OF COMPLIANCE ................................ ................................ .. 364 INDEX OF AUTHORITIES

Cases Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc. , 948 S.W.2d 293 (Tex. 1997)

................................ ................................ ......... 1 8 Ballard v. Quinn , 14

- 97

- 01057

- CV, 1998 WL 787558 (Tex. App.

— Houston [ 14th Dist.] Sep. 10, 1998, no pet.)

................................ ................................ 15, 16, 22, 26 Beesley v. Hydrocarbon Separation, Inc. , 358 S.W.3d 415 (Te x. App.

— Dallas 2012, no pet.)

................................ ..... 21
Cain v. State , 882 S.W.2d 515 (Te x. App.

— Austin 1994, no writ)

............................. 14 , 1 5
Davis v. State , 846 S.W.2d 564 (Tex. App.

— Austin 1993, no writ.)

................................ ... 24 Fleming & Assoc., L.L.P. v. Barton , 425 S.W.3d 560 (Tex. App.

— Houston [14th Dist.] 2014, pet. filed)

................................ ................................ ................................ .... 9, 33
Jonnet v. State , 877 S.W.2d 520 (Tex. A pp.

— Austin 1994, writ denied)

...................... 14, 15 Levy v. Hunt , 14

- 00

- 00549

- CV, 2001 WL 306149 (Tex. App.

— Housto n [14th Dist.] 2001, no pet.)

................................ ......... 14 McConnell v. Southside Indep. Sch. Dist. , 85 8 S.W.2d 337 (Tex. 1993)

................................ ........................ 9, 28, 29, 33 McKinney v. Anderson , 734 S.W.2d 173 (Tex. App.

— Houston [1st Dist.] 1987, no writ)

................................ ................................ ................................ .... 1 0 , 2 1
PACCAR Fin. Cor p. v. Potter , 239 S.W.3d 879 (Te x. App.

— Dallas 2007, no pet.)

................................ ..... 235 Pace Corp. v. Jackson , 15 5 Tex. 179, 284 S.W.2d 340 (1955)

................................ .......................... 31 Palmer v. Coble Wall Trust Co., Inc. , 851 S.W.2d 178 (Tex. 1992)

................................ ................................ ......... 13
Pearson v. K

- Mart , 755 S.W.2d 217 (Tex. App.

— Houston [1 st Dist] 1988, no writ)

................................ ............ 13 River Oaks Shopping Ctr. v. Pagan , 712 S.W.2d 190 (Tex. App.

— Houston [14th Dist.] 1986, writ ref’d n.r.e.)

................................ ................................ ..... 10, 11 , 19 , 2 1 , 2 7 Rogers v. Adler , 696 S.W.2d 674 (Tex. App.

— Da llas 1985, writ ref’d n.r.e.)

................. 16, 26 Roylex, Inc. v. Langson Bros. Const. Co. , 585 S.W.2d 768 (Tex. Civ. App.

— Houston [1st Dist.] 1979, writ ref’d n.r.e)

................................ ................................ ............................... 31 Seay v. Hall , 677 S.W.2d 19 (Tex. 1984)

................................ ................................ . 9

- 17, 20 SSP Partners v. Gladstrong Invs. (USA) Corp. , 275 S.W.3d 444 (Tex. 2008)

................................ ................................ ......... 30 Taylor v. First Community Credit Union , 316 S.W.3d 863 (Tex. App.

— Houston [14th Dist.] 2010, no pet.)

................................ ................................ ........................ 1 0 , 1 1 , 19 , 2 6
Tri

- State Building Specialties, Inc. v. NCI Building Systems, L.P. , 184 S.W.3d 242 (Tex. App.

— Houst on [1st Dist.] 2005, no pet.)

................... 9 Tryco Enters., In c. v. Robinson , 390 S.W.3d 497 (Tex. App.

— Houston [1st Dist.] 2012)

....................... 1 5, 29 Vecellio Ins. Agency, Inc. v. Vanguard Underwriters Ins. Co. , 127 S.W.3d 134 (Tex. App.

— Houst on [1st Dist.] 2003, no pet.)

................. 326 Wilburn v. State , 824 S.W.2d 755 (Tex. App.

— Austi n 1992, no writ)

....................... 1 0 , 1 6 , 2 3 Williams v. Adams , 74 S.W.3d 437 (Tex. App.

— Corpus Christi 2002, pet. denied )

........ 9, 10, 15

Statutes Tex. Bus. Orgs. Code § 21.223

................................ ................................ ................ 29 Tex. Property Code § 91.006

................................ ................................ ................... 18 Tex. Tax Code § 171.109

................................ ................................ 10, 11, 19, 20, 26 Tex. Tax Code § 171.255

................................ ................................ ................. passim

Rules Tex. R. App. Pro. 38.1

................................ ................................ ............................... 97 INDEX OF RECORD REFERENCES

CR Clerk’s Record RR Reporter’s Record ([Vol.] RR [Page]) RR (Exhibits) Reporter’s Record (5 RR [Pl/Def] [Exh. #]) App’t.Br. Appellant’s Brief App’ee.Br. Appellee’s Brief

Citations to documents included in the Appendix are noted by “Tab #.”8 RESPONSE TO APPELLEE’S STATEMENT OF FACTS BPMT states that Francie Willis is “the owner and President o f Urban Retreat.” App’ee.Br. at 4; see also App’ee.Br. at 2 (same) . As is discussed further below, BPMT returns throughout its brief to the theme that Ms. Willis is personally and individually responsible for Urban Retreat’s obligations (e.g., for Urban Retreat’s franchise taxes), perhaps on this assumption (unsupported in the record or the law) that she is its “owner.” However, BPMT does not and cannot offer any citation to the record for the assertion that Ms. Willis was the “owner” of Urban Retreat. Ms. Willis may have been a shareholder during at least some relevant times, but this is not apparent from the record for the simple reason that Ms. Willis’s status as a shareholder was not an issue in this case. BPMT sued Ms. Willis solely in her role as an officer. CR 99

- 100 (Tab 1)

. BPMT’s motion for summary judgment (from which this appeal is taken) contained no evidence or argument suggesting that Ms. Willis was liable as a shareholder, and the statute BPMT relied on does not refer to shareholder li ability.
See CR 65

- 70 (Tab 2) ; Tex. Tax Code § 171.255 (“Liability of Director and Officers”) (Tab 4) . The stipulated facts on which the parties proceeded below do not contain any reference to whether or not Ms. Willis was an Urban Retreat shareholder. CR 367

- 68 (Tab 3) . BPMT asserts this “fact” for the first time on9 appeal, without any record references to support it. See Tex. R. App. Pro. 38.1(g)

. Most important, since BPMT neve r asserted Ms. Willis’s status as a shareholder in support of its motion for summary judgment, it cannot assert it as a basis to support the judgment now. Fleming & Assoc., L.L.P. v. Barton , 425 S.W.3d 560, 572 (Tex. App.

— Houston [14th Dist.] 2014, pet. f iled) (“[S]ummary judgm ents must stand or fall on the grounds raised therein; we cannot consider grounds raised for the first time on appeal as a basis for affirming or reversing the trial court’s judgment.”); McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1 993) (A “motion for summary judgment must itself expressly present the grounds upon whi ch it is made. A motion must stand or fall on the grounds expressly presented in the motion.”). Ms. Willis requests this Court to give no weight to BPMT’s statements that Ms. Willis is Urban Retreat’s “owner.” ARGUMENT I. BPMT’s reliance on Taylor and Seay to support its definition of “debt” is misplaced. (Response to Appellee’s Brief, part I
- A.) A. BPMT fails to address the fact that Section 171.255 is a penal statute that must be interpreted strictly against liability. As Ms. Willis argued in her initial brief, Section 171.255 is penal in nature and must be strictly construed again st a finding of officer liability. App’t.Br. at
21

- 22; Tri

- State Building Specialties, Inc. v. NCI Building Systems, L.P. , 184 S.W.3d 242, 251 (Tex. App.

— Houston [1st Dist.] 2005, no pet.) ; Williams v.10 Adams , 74 S.W.3d 437 , 440 (Tex. App.

— Corpus Christi 2002, pet. denied); Wilburn v. State , 824 S.W.2d 755, 760 (Tex. App.

— Austin 1992, no writ) ; McKinney v. Anderson , 734 S.W.2d 173, 174 (Tex. App.

— Houston [1st Dist.] 1987, no writ) ; Schwab v. Schlumberger Well Surveying Corp. , 145 Tex. 379, 198 S.W.2d 79, 81 (1946) (construing 171.255’ s predecessor). BPMT fails to show how its interpretation of Section 171.255 overcomes this requirement, or in fact to address this issue at all. Therefore, to the extent there is any doubt , Section 171.255 should be construed against a finding that Ms. Willis is personally liable for Urban Retreat’s debt.
B. The Taylor court recognized that but for the passage of Section 171.109 (now repealed), it would have come out the other way BPMT suggests that the court in Taylor v. First Community Credit Union , 316 S.W.3d 863 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) relied on Seay v. Hall , 677 S.W.2d 19 (Tex. 1984) and the “ordinary” definition of “debt” BPMT urges in order to reach its decision. App’ee.Br. at 7 ( Taylor “was based in part on prior definitions and standards set by the Texas Supreme Court”); App’ee.Br. at 19 (referring to the “reasoning and logic of Taylor ”). 1 This is not accurate. The Taylor court noted expressly that

— but for the legislature’s passage of Section 171.109

— it would have been bound by the holding in River Oaks Shopping Ctr. v.

1 But see App’ee.Br. at 11 n.2, acknowle dging that Taylor did not actually rely on Seay.11 Pagan , 712 S.W.2d 190 (Tex. App.

— Houston [14th Dist.] 1986, writ ref’d n.r.e. ) , which supports Ms. Willis’s position in this case. Taylor , 316 S.W.3d at 869. There is no discussion of the Seay opinion or of the “ordinary” meaning of the term debt; rather, the court refers to the definition in Section 171.109 as the “statuto ry definition.” Id. C. Not only did Seay interpret an entirely different statute, but the leg islature rejected and repealed Seay’s interpretation of the word “debt” BPMT puts a lot of emphasis on the interpretation of the word “debt” given by the Texas Supreme Court in Seay v. Hall . However, BPMT does not discuss either the reasoning of Seay or its reception by the legislature. Both are illuminating and demonstrate why Seay’s definition of the wo rd “debt” does not control here. Seay involved a wrongful death action brought by the administrator of a decedent’s estate. 677 S.W.2d at 20 . There was uncertainty regarding whether the probate or district courts would have jurisdiction over the claim, so the administrator brought the wrongful death action in both the probate and district
court s . Id. Th e defendants filed successful motions to dismiss in the probate court, arguing that the probate court lacked jurisdiction. Id. Therefore, the question presented in Seay was whether statutory probate courts have jurisdiction over wrongful death actions. Id

.12 The court examined the relevant Texas Probate Code sections then in effect at length. Id. at 20

- 21 . The Probate Code provided that probate courts had the power to hear “all matters incident to an estate.” Id. The Code defined matters “incident to an estate” as including “all claims by or against an estate.” Id. at 21

. Finally, the Code provided that “claims” “include liabilities of a decedent which survive...and debts due su ch estates.” Id

. (emphasis added). The court noted that the “pivotal issue” was whether “the statutory terms ‘appertaining to estates and incident to an estate,’ ‘all matters relating to the settlement ... of estates,’ and ‘cl aims’” were broad enough to confer dominant jurisdiction over wrongful death claims in probate courts. Id. (alteration in original). The court then gave careful and detailed attention to the legislative history of the Probate Code sections at issue. Id. at 21

- 25 . The court concluded that if “there is any legislative intent to be gleaned from the 1979 proceedings as to what appertains to an estate, it would seemingly be that the legislature did n ot intend to expand probate court jurisdiction to matters other than those in which the controlling issue was the settlement, partition, or distrib ution of an estate.” Id. at 22 . In light of its interpretation of the legisla tive history, the court construed the phrase “debts due [to the] estates” narrowly, thus restricting the probate court’s jurisdiction to matters where the controlling issue was the settlement, partition, or distribution of an estate. Id. at 23

.13 With this background in mind, the court addressed whether a wrongful death claim should be considered a “debt due [to an] estate.” Because such a claim would be unrelated to settlement, partition, or distribution of an estate, the cour t was reluctant to vest primary jurisdiction over such a claim in the probate court. Therefore, the court focused on the fact that a wrongful death claim is typically unliquidated and would not fall within the traditionally understood concept of a “debt d ue [to an] estate,” reaching the result that it believed the legislature intended of vesting jurisdiction over such claims in the district courts. Id. at 23

- 25

. The year after Seay was decided, the Texas Legislature responded by passing legislation to overrule it. Palmer v. Coble Wall Trust Co., Inc. , 851 S.W.2d 178, 181 (Tex. 1992) (“We agree with the [assessment of the First Court of Appeals] that ‘it is readily apparent that the purpose of [House Bill 479 ] was to overrule Seay v. Hall. ’”), citing Pearson v. K

- Mart , 755 S. W.2d 217, 219 (Tex. App.

— Houston [1st Dist] 1988, no writ) . Specifically, the legislature made the amendment for the purpose of clarifying that the a persona l representative bringing a claim on behalf of estate could elect probate court for “any cause of action, liquidated or unliquidated , contract or tort .” Pearson , 755 S.W.2d at 220

. In other words, Seay interpreted the word “debt” to exclude unliquidated claims (the interpretation BPMT relies on), and the Legislature’s immediate response was to pass a law overruling that interpretation. Seay therefore hardly14 pres ents a compelling case that “debt” must be construed to exclude unliquidated
amounts. D. Levy v. Hunt , Cain v. State , and Ballard v. Quinn likewise do not support BPMT’s argument regarding the meaning of “debt” in this case Levy v. Hunt , 14

- 00

- 00549

- CV, 2001 WL 306149 (Tex. App.

— Houston [14th Dist.] 2001, no pet.) (not designated for publi cation), on which BPMT also relies, is another Probate Code case and , in a footnote, simply adopts Seay’s definition of the word “debt.” 2001 WL 306149 at *3 n.4 (Tab 5) . It does not add anything that would support BPMT’s argument here.
Cain v. State , 882 S.W.2d 515 (Tex. App.

— Austin 1994, no writ) , which BPMT also cites, is distinguishable in that it does not address a pre

- existing contractual obligation like the one at issue her e. See App’ee.Br. at 15. Instead,
Cain addressed liability for administrative penalties assessed against a corporation for failure to plug abandoned oil wells. 882 S.W. 2d at 516

. As discussed in Ms. Willis’s principal brief at 36, in a similar case the Austin Court of Appeals expressly distinguished cases like Cain from cases (such as this one) “arising from a post

- forfeiture b reach of an existing agreement.”
Jonnet v. State , 877 S.W.2d 520, 523 (Tex. App.

— Austin 1994, writ denied) . The court noted that “unlike situations in which the execution of a written instrument or a specific transaction creates an obligation or duty to pay for a later breach of the15 agreement,” in administrative penalty case s such as Jonnet or Cain , “the obligation to pay the statutory penalty only arises if and when a penalty is actually assessed.” Id. at 523

- 24 (emphasis in original)

. See also Williams v . Adams , 74 S.W.3d 437, 443 (Tex. App.

— Corpus Christi 2002, pet. d enied) (distinguishing Cain and
Jonnet on this basis); Tryco Enters., Inc. v. Robinson , 390 S.W.3d 4 97, 518 (Tex. App.

— Houston [1st Dist.] 2012) (Keyes, J. , concurring) (cases like Cain are those in which “a penalty or judgment is incurred by a corporation after forfeiture of its corporate charter as a result of the wrongful acts of th e corporation’s officers or directors before or after forfeiture.”) (emphasis added). BPMT also relies on Ballard v. Quinn , 14

- 97

- 01057

- CV, 1998 WL 787558 (Tex. App.

— Houston [14th Di st.] Sep. 10, 1998, no pet.) (not designated for publication) to reinforce its proffered interpretation of the meaning of “debt” within Section 171.255 . App’ee.Br. at 14. However, Ballar d v. Quinn strongly supports Ms. Willis’s case, as discussed in her principal brief. App’t.Br. at 37

- 38. The Ballard court accepted Seay’s definition of debt, but nonetheless refused to impose individual liability on the defendant officer, holding: Strict construction of [Section 171.255 ] prohibits the imposition o f liability in the present case where all of the operative facts occurred nearly two years before the corporate charter was forfeited and related back to the termite inspection agreement. “The mere fact that the amount of money owed

... as damages was unspe cified at the time of the forfeiture does not establish that the debt was created or incurred after forfeiture.”16 1998 WL 787558 at *2 (Tab 6 ) , quoting Rogers v. Adler , 696 S.W.2d 674, 677 (Tex. App.

— Dallas 1985, writ ref’d n.r.e.)

. Even if the Legislature had not overruled Seay , there is no reason why courts might not properly construe the word “debt” differently in differ ent legal contexts. See Wilburn v. State , 82 4 S.W.2d 755, 759

- 60 (Tex. App.

— Austin 1992, no writ ) (discussing narrow and broad construction s of the word “debt” in a variety of Texas cases). The Wilburn court noted the rule of strict construction

— which BPMT does not address and which did not apply in Seay

— and concluded that “statutes maki ng directors and officers liable for corporate debts must be strictly construed and cannot be extended beyond the clear meaning of their language.” 824 S.W.2d at 760 . For t his reason, to the extent that there is doubt whether the definition of “debt” used by the Seay court should control here, the doubt should be resolved against a finding that Ms. Willis is personally liabl e for Urban Retreat’s debt. App’t.Br. at 21

- 22.
E. BPMT’s argument that the debt was unliquidated because of the lease’s mitigation clause demonstrates one of the significant negative consequences of a ruling in BPMT’s favor. BPMT has argued throughout thi s case that its duty to mitigate under the lease demonstrates that Urban Retreat’s debt was unliquidated and therefore should fall within Section 171.255(a) . CR 70 (BPMT’s motion for summary judgment on Ms. Willis’s liability) ( Tab 2) (due to the mitigation clause, “the debt cannot be17 calculated until the earlier of the leased premises being re

- leased and the expiration of the lease term.... Despite efforts to re

- lease, the Landlord was not able to re

lease the premises before the expiration of the lease term, and so it was not until the lease term expired that the debt could be calculated.”); CR 99 (Second Amended Petition) (Tab 1) (“The debt owed to the Landlord under the Lease is calculated with the formula provided in Section 1 8.5 of the Lease, as follows: all rent and other charges required to be paid under the Lease through the end of the lease term reduced by sums received by the Plaintiff through the re

- letting of the space during the lease term ” ) (emphasis in original).
B PMT continues that theme in its brief before this Court. App’ee.Br. at 5 (“The tenant was liable for the rent and other charges required to be paid under the
Lease ... reduced by sums received through the re

- letting of the space.”) (emphasis in original); 13 (arguing that the amount due under the Lease was not ascertainable at the time of execution in part because the calculation included triple

- net rent “and required the application of offsets (which were unknown at the time of the lease execution).”).
B y BPMT’s reasoning, every time a corporate tenant goes out of business, stops paying its franchise taxes, and abandons its lease

— an unfortunately common

occurrence

— its officers and directors will be personally liable for the balance the corporation owes on the lease, no matter how much and regardless of fault. This is18 because (a) BPMT takes the position that all corporate officers are personally and individually responsible for ensuring their employer’s franchise taxes are paid ( see , e.g. , App’ee.Br. at 22 , discussed below) and (b) as a matter of law, all leases must allow mitigation of damages through re

- letting of t he space. Tex. Property Code § 91.006 (providing that a “landlor d has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease” and rendering void any contract term purporting to waive that right); Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc. , 948 S.W.2d 293, 299 (Tex. 1997) (in a case pre

- dating Tex. Property Code § 91.0 06 , recognizing that in the absence of an agreement to the contrary, commercial landlords have “a duty to make reasonable efforts to mitigate damages when the tenant breaches the lease and abandons the property”).
I n other words, if the duty to mitigate renders the amount owed on the lease unknowable at the time the lease is signed, and if the fact that the amount owed is unknowable means that Section 171.255 is triggered once the corporati on goes out of business and defaults on its franchise taxes, then corporate officers are taking on a staggering personal liability every time their employer signs a lease. No public purpose could be served by this result. Even though the jury in this cas e was not persuaded by this theory, and even if BPMT chooses to abandon it at oral argument, it is not clear why this result would not follow logically if this Court accepts BPMT’s position regarding the meaning of “debt” in Section 171.255

.19 II. BPMT does not show any reason why this Court should ignore the repeal of Section 171.109 . (Response to Appellee’s Brief, part I
- B.) BPMT argues that despite the Legislature’s repeal of Section 171.109 (containing the definition of “debt” upon which BPMT relies), Section 171.255 was unaffected by the repeal. App’ee.Br. at 16. In other words, BPMT is urging this Court to accept that the Legislature intended th e passage of Section 171.109 to modify officer and director liability, App’ee.Br. at 14, 2 but did not intend the repeal of Section 171.109 to have any effect on that modified liability, App’ee.Br.
at 16. BPMT’s argument directly contradicts the law governing the effect of repealed statu tes, as detailed by Ms. Willis in her principal brief. App’t.Br. at 27

- 29. Moreover, BPMT does not offer any authority (or logic) to support its argument. BPMT argues that because the bill repeal ing Section 171.109 “restricted the method for an entity to arrive at its taxable margin ... it was no longer necessary to have Section 171.109 .” App’ee.Br. at 16. To the contrary, if the Legislature in tended Section 171.109 to continue enlarging the personal liability of corporate officers under Section 171.255 , Section 171.109 would certainly still be necessary. Instead, however, the Legislature repealed it, and according to the law

2 The Fourteenth Court agreed that the passage of Section 171.109 materially changed the effect of Section 171.255

. Taylor , 316 S.W.3d at 869 (holding that because the passage of Section 171.109 constituted “an intervening and material change in the statutory law,” th e court was not required to follow the precedent set in River Oaks Shopping Center v. Pagan , 712 S.W.2d 190 (Tex. App.

— Houston [14th Dist.] 1986, writ ref’d n.r.e.) .).20 governing savings of repealed statutes, Section 171.109 does not apply to this case. App’t.Br. at 27

- 29.
III. BPMT does not provide any persuasive reason why this Court s hould apply a definition of “debt” that has twice been rejected by the Texas Legislature. (Response to Appellee’s Brief, part I
- C.) BPMT argues that even though the Texas Legislature has repealed Section 171.109 (and, although B PMT does not mention it, has also repealed the holding of Seay construing the term “debt”), this Court should apply the Section 171.109 definition anyway. App’ee.Br. at 16

- 17. BPMT’s reasoning is not persuasive, as discussed be low. A. BPMT’s argument that all contracts payable after forfeiture of a corporate charter are subject to Section 171.255 is contradicted by decades of Texas case law. BPMT argues that because Section 171.255 refers to debts that are “created ”

or “ incurred,” in order to give meaning to both words this Court must construe “incurred” to mean when the “triggering event in the future occurs” that requires the amount to be actually paid. App’ee.Br. at 18. Appa rently, BPMT means by this that if a corporation enters into a contract when it is in good standing, but some or all of the contractual payments come due after the corporation forfeits its charter, the corporation’s officers and directors should be individ ually liable for those later amounts. This argument far overreaches BPMT’s primary argument, which is limited21 to sums that cannot be ascertained at the time a contract is entered. App’ee.Br. at 7 (The “debt in this case ... was created or incurred at the ti me of the breach ... because the amount of the debt could not be calculated at the time the lease was executed.”). More important, the courts of this State (including this Court) have repeatedly and emphatically rejected this argument. Beesley v. Hydrocarb on Separation, Inc. , 358 S.W.3d 415, 423 (Tex. App.

— Dallas 2012, no pet .) (“We conclude that HSI’s debt to Beesley was created or incurred in 1992 when the Employment Contract was signed, not in 1996 after forfeiture of HSI’s charter.”);
Serna v. State , 877 S.W.2d 516, 519 (Tex. App.

— Austin 1994, writ denied) (“Under Texas case law, contractual obligations entered into before the forfeiture of corporate privileges do not impose liability on the officers or directors for payments that are due after forfeiture.”) (emphasis in original); McKinney v. Anderson , 734 S.W.2d 173, 174 (Tex. App.

— Houston [1st Dist.] 1987, no writ) (“U nder Section 171.255 , individual liability is imposed only for debts contracted after the forfeiture of the right to do business, and has no application to obligations arising or renewed prior thereto.”) (emphasis in original) ; River Oaks Shopping Center v. Pagan , 712 S.W.2d 190, 192 (Tex. App.

— Houston [14 th Dist.] 1986, writ ref’d n.r.e.) (The “obligation to pay rent was created or incurred at the time the lease agreement was executed,” not in the future when the periodic payments were22 due.); Curry Auto Leasing, Inc. v. Byrd , 683 S.W.2d 109, 112 (Tex. App.

— Dallas 1984, no writ) (“When parties enter into a contract the law presumes they intend the consequences of its per formance. It follows that performance or implementation of the contractual provisions relate back to and are authorized at the time of execution of the contract.”); Ballard v. Quinn , 14

- 97

- 01057

- CV, 1998 WL 787558 at *2 (Tex. App.

— Houston [14 th Dist.], Se pt. 10, 1998, no pet.) (not designated for publication) (Tab 6) (“Individual liability is imposed only for debts contracted after the forfei ture of the right to do business, and has no application to obligations arising or renewed prior thereto.”).
B. It is possible to give meaning to both “create” and “incur” without mandating liability in this case. Contrary to BPMT’s argument, it is possible t o give different meanings to the words “create” and “incur” as used in the statute without violating the precedent set above or the policies embodied in Section 171.255 , and without concluding that Ms. Willis must be liable in th is case. See App’ee.Br. at 17

- 18. For example, imagine that a corporation in good standing enters into a contract with a bank to open a line of credit, and borrows some money on the line without drawing it down completely. Later, the corporation forfeit s its charter, but after forfeiture an officer borrows additional money on the line of credit. The bank would have a strong argument that even though the corporation executed the contract enabling the line of credit before forfeiture, the debt incurred by drawing23 down the line of credit after forfeiture triggered application of Section 171.255

. This result would additionally be consistent with the cases holding that the officer must engage in some culpable act (here, voluntaril y borrowing new money even after the corporation lost the right to do business) in order to trigger personal liability. PACCAR Fin. Corp. v. Potter , 239 S.W.3d 879, 883 (Tex. App.

— Dallas 2007, no pet .) (“The language of the statute is concerned with the creation or incursion of debts by the corporation after the franchise r eport is delinquent. ... It is the act of creating or incurring a debt when the franchise report is delinquent that triggers personal liability.... These directors and officers have abused the corporate privilege by continuing to create and incur debts afte r the franchise tax is delinquent ... and are, therefore, ‘culpable.’”); Wilburn v. State , 824 S.W.2d 755, 761 (Tex. App.

— Austin 1992, no writ) (Section 171.255 “was meant to prevent wrongful acts of culpable officers of a corporation” and creates personal liability in corporate officers for debts “knowingly and consensually created or incurred after forfeiture of corporate privileges and before reviva l of the right to do business.”); see also Schwab v. Schlumberger Well Surveying Corp. , 148 Tex. 379, 198 S.W.2d 79, 81 (1946) (predecessor to 171.255 “was meant to prevent wrongful acts of culpable officers of a corporation, and was for the protection of the public and particularly those dealing with the corporation”); Davis v. State , 846 S.W.2d 564, 570 (Tex. App.

— Austin 1993, no writ .) (Section 171.255 “is meant to prevent24 wrongful acts of culp able officers of a corporation”). Similarly, this result would be consistent with subsection (c) of Section
171.255 , which provides a safe harbor for directors and officers who object to the creation of the debt or who reasonably are no t aware of it. Tex. Tax Code § 171.255(c) . As discussed in Ms. Willis’s principal brief, this safe harbor only makes sense if Section 171.255(a) contemplates a voluntary corporate act taken after forfeiture of the right to do business, because there is no reason to expect or require a corporate officer to object to ordinary business transactions made when a corporation is in good standin g. App’t.Br. at 32

- 34. It is important to note in this case that once the lease was signed (which happened years before Urban Retreat forfeited its corporate charter, CR 367

- 68), there was nothing that Ms. Willis could have done to avoid Urban Retreat’s
l iability on the lease. In other words, once Urban Retreat was no longer authorized to do business, there was no act or omission by Ms. Willis that created or worsened the corporation’s liability on the lease. In fact, Urban Retreat attempted to reduce th e harm by selling its assets, vacating the premises, and subletting to another corporation . CR 367 (Tab 3) . However, when the sublessee vacated the premises, BPMT was unable to re

- let it, leaving Urban Retreat liable on the remainder of the lease. See C R 70 (Tab 2) (“ Despite efforts to re

- lease, the Landlord was not able
to re

- lease the premises before the expiration of the lease term.”); 3 RR 190:6

-25 191:1 (BPMT representative’s testimony regarding efforts to re

- lease). Therefore, this case is not a cas e involving a culpable act after the forfeiture of the corporate charter. Relatedly, there was no opportunity for Ms. Willis to seek the safe harbor of Section 171.255(c), because all of the voluntary acts which
creat ed liability in this case ( i.e. , signing the lease) took place while Urban Retreat was still in good standing. The fact that Ms. Willis was not able to protect herself from liability under BPMT’s theory, despite the Legislature’s intent to allow innocent officers to protect themselv es, demonstrates why Section 171 .255 should not apply in this case.
IV. Contrary to BPMT’s argument, the Tax Code does not create individual liability in corporate officers for their employers’ franchise taxes. (Response to Appellee’s Brief, part I
- D.) A. BPMT adds nothing new to its assertion regarding pre
- existing contractual obligations; the case law still holds that officers are only liable for debts contracted after forfeiture. In Section D of its brie f, BPMT reiterates its argument that contractual payments owed after forfeiture of a corporation’s charter trigger Section 171.255

. App’ee.Br. at 19

- 20. As discussed herein and in Ms. Willis’s principal brief, Texas courts have rejected that argument, even when the amount due could not be calculated at the time the contract was signed. Serna v. State , 877 S.W.2d 516, 519 (Tex. App.

— Austin 1994, writ denied) (“Even when the exact amount of future debt is unknown at the time the parties enter into the contract, Texas case law26 holds that the entire debt was created at the time the contract was signed.”); Rogers v. Adler , 696 S.W.2d 674, 677 (Tex. Ap p.

— Dallas 1985, writ ref’d n.r.e.) (“The mere fact that the amount of money owed to Rogers as damages was unspecified at the time of the forfeiture does not establis h that the debt was created or incurred after forfeiture.”); Curry Auto Leasing, Inc. v. Byrd , 683 S.W.2d 109, 111

- 12 (Tex. App.

— Dallas 1984, no writ) (Eve n though amounts due “were all ascertained, paid, or charged...after Physicians Accounting Services’ corporate privileges had been forfeited,” original contract was signed before forfeiture and therefore officers were not individually liable) ; Ballard v. Qui nn , 14

- 97

- 01057

- CV, 1998 WL 787558 at *2 (Tex. App.

— Houston [14 th Dist.], Sept. 10, 1998, no pet.) (not designated for publication) ( quoting Rogers v. Adler , 696 S.W.2d at 677 )

. BPMT’s assertion that “the reasoning and logic of Taylor is a better fit to the facts of this case” is puzzling. App’ee.Br. at 19. As discussed above, the result in Taylor was based exclusively on the enactment of Section 171.109 (now repealed). BPMT does not explain what “reasoning and logic” from Taylor would apply here. In addition, Ms. Willis disagrees with BPMT’s assertion that “the amount of liability was fully calculable at the inception of the lease” in Curry Auto Leasing

. App’ee.Br. at 20. In that case, the vehicle lease at issue specified that upon termination of the lease, the cars would be sold and the profit or loss attributed to each would be applied to any remaining balance due on t he lease. 683 S.W.2d at27 110

- 11 . The court expressly found that the offsets and penalties that were calculated as part of the corporation’s ultimate debt “were all ascertained, paid, or charged after ... Physicians Accounting Services’ corporate privileges had been forfeited.” Id. at 111

. BPMT makes the sam e argument with respect to River Oaks Shopping Center v. Pagan , 712 S.W.2d 190 (Tex. App.

— Houston [14th Dist.] 1986, writ ref’d n.r.e.)

. However, the facts as discussed by the Court of Appeals do not reveal whether the amount was known or not at the time of contracting. Rather, the Court of Appeals did not appear to consider that fact significant in its determination, since it concluded th at Section 171.255 only imposes liability for debts contracted after forfeiture of the right to do business. Id. at 192

. To the extent that BPMT is arguing that the mere fortuity of the calculation of triple

- net rent should control liability under Section 171.255 (and abandoning its earlier argument regarding mitigation of dam ages), there is no sound basis in law, logic, or policy for that distinction, as set forth in Ms. Willis’s principal brief. App’t.Br. at 40

- 41.
B. BPMT cannot rely

— implicitly or otherwise

— on an alter ego theory of liability against Ms. Willis because BPMT di d not plead such a theory nor did it offer it in support of its motion for summary judgment. At pages 22

- 24 of its brief, BPMT makes an extraordinary argument in which it conflates Ms. Willis with Urban Retreat. For example, BPMT states that28 Ms. Willis “c hose to evade paying her taxes” and therefore should not be protected by the corporate shield. App’ee.Br. at 22; see also App’ee.Br. at 24 (Ms. Willis is not “innocent” because she “failed to pay her taxes, and she walked [sic] this lease.”); 4 (Ms. Willi s “allowed the corporate charter to be forfeited”). It is hard to make sense of this argument except as a belated and unsupported effort to pierce the corporate veil and hold Ms. Willis to be the alter ego of Urban Retreat. This conclusion is supported by BPMT’s statement at page 22 that “[o]fficers and directors of companies enjoy great protections of the corporate shield in Texas: provided that they follow the rules, keep their affairs separate, and pay their taxes.” This statement is not followed by an y citation to the record or to the law. Indeed, such citations would not be possible. With respect to the record, BPMT has never pleaded that Urban Retreat and Willis failed to keep their affairs separate, that they were alter egos or that the corporate veil should be pierced, or even that Willis was a shareholder of Urban Retreat; nor did BPMT make such an argument in support of its motion for summary judgment. See CR 65

- 70 (BPMT’s motion for summary judgment) (Tab 2) ; CR 99

- 100 (BPMT’s Second Amended Petition) (Tab 1) (pleading only that Ms. Willis is vicariously liable as an officer due to the application of Section 171.255). On this basis alone, this Court should reject BPMT’s late

- asserted theory of alter ego liability. McConnell v. Southside29 Inde p. Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1993) (A “motion for summary judgment must itself expressly present the grounds upon which it is made. A motion must stand or fall on the grounds expressly presented in the motion.”). In addition, it is not clear what “rules” BPMT is alleging Ms. Willis failed to follow. Moreover, BPMT’s apparent statement regarding the basis of alter ego liability (officers must “follow the rules, keep their affairs separate, and pay their taxes”) does not accurately reflect the state of the law in Texas. Rather, alter ego “applies when there is such unity between corporation and individual that the separateness of the corporation has ceased and ho lding only the corporation liable would result in injustice. [Disregarding] the corporate structure involves two considerations: (1) the relation ship between [the] two entities and (2) whether the entities’ use of limited liability was illegitimate.” Try co Enters., Inc. v. Robinson , 390 S.W.3d 497, 508 (Tex. App.

— Houston [1st Dist.] 2012, pet. dism’d) (internal quotation marks omitted) ; see also Tex. Bus. Orgs. Code § 21.223 (in order to prove shareholder is corporation’s alter ego, obligee must show that the shareholder cause d the corporation to be “ used for the purpose of per petrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of” the shareholder). Even BPMT acknowledges that in order to impose individual liability on an officer for a corporate obligation, there “must ... be evi dence of abuse, or ...30 injustice and inequity,” such as “fraud, evasion of existing obligations, circumvention of statutes, monopolization, criminal conduct, and the like.” App’ee.Br. at 23, quoting SSP Partners v. Gladstrong Invs. (USA) Corp. , 275 S.W.3d 4 44, 455 (Tex. 2008) . As stated above, BPMT did not plead any bases for alter e go liability in its petition, nor did its motion for summary judgment offer any evidence or argument in support of such liability. Therefore, this Court should not give any weight to BPMT’s repeated assertions that Ms. Willis failed to pay “her” taxes. M s. Willis is at a loss to understand what basis there could be for BPMT to claim that Urban Retreat’s franchise taxes were in fact Ms. Willis’s taxes. If BPMT is arguing that officers must be personally responsible for ensuring their corporate employers’ franchise taxes are paid, or face personal liability for their employers’ debts under Section
171.255 , BPMT is not only arguing for a result that it has cited absolutely no legal authority for, but which will also shock and alarm corporate officers throughout Texas, who face potentially astronomical personal liability for taxes and corporate debts over which they have no control. While the Tax Code may have the goal of encouraging corporations to pay their franchise taxes, there is no justification in the law to further that asserted goal by imposing personal liability for corporate franchise taxes on corporate officers. Such a result would directly contravene the law of this state, which holds that31 courts “will not disregard th e corporate fiction and hold individual officers ... liable on the obligations of a corporation except where it appears that the individuals are using the corporate entity as a sham to perpetrate a fraud, to avoid personal liability, avoid the effect of a st atute, or in a few other exceptional situations.” Roylex, Inc. v. Langson Bros. Const. Co. , 585 S.W.2d 768, 771 (Tex. Civ. App.

— Houston [1st Dist.] 1979, writ ref’d n.r.e) , quoting Pace Corp. v. Jackson , 155 Tex. 179, 284 S.W.2d 340, 351 (1955)

. C. The rule that this Court applies in this case will be the rule that governs the liability of innocent corpo rate officers under Section 171.255 . BPMT’s attempts to throw mud on Ms. Willis , call her a tax evader, and conflate her with Urban Retreat do not and cannot have any effect on the analysis of this case because (among other thing s) there are no corresponding facts in the record. Rather, the facts in this case simply show that Ms. Willis was an officer of Urban Retreat and that BPMT did not plead or offer evidence to suggest that Ms. Willis was engaged in any wrongdoing. Therefore , the rule that this Court applies in this case will be the rule that applies to innocent corporate officers. If this Court holds that Ms. Willis is liable for Urban Retreat’s debt, other innocent corporate officers in analogous situations will be held to the same rule. For this additional reason, Ms. Willis urges the Court not to be influenced by BPMT’s unsupported allegations that Ms.32 Willis “owned” Urban Retreat, or that she evaded her taxes or otherwise committed wrongful acts.
V. Francie Willis cannot be vicarious ly liable for debt

— including attorneys’ fees

— on which Urban Retreat is not liable. (Response to Appellee’s Brief, part II.) As discussed herein, the basis for BPMT’s theory of liability against Ms. Willis throughout the case has been vicariou s liability pursuant to Section 171.255

. CR 65

- 70; CR 99

- 100. “Vicarious liability is liability placed upon one party for the conduct of another, based solely upon the relationship between the two.” Vecellio Ins. Agency, Inc. v. Vanguard Underwriters Ins. Co. , 127 S.W.3d 134, 138 (Tex. App.

— Houston [1st Dist.] 2003, no pet.)

. Inherent in the notion of vicarious liability is that the active party (here, Urban Retreat) must have a liability before the passive party (here, Willis) can be vicariously liable for it. See Tex. Tax Code § 171.255(a) (providing for liability by officers for certain “debts of the corporation ”) (emphasis added). Here, BPMT did not allege any ind ependent basis for the award of fees against Ms. Willis. Rather, the sole basis on which she can be liable for attorneys’ fees is via operation of Section 171.255 , making her liable for Urban Retreat’s attorneys’ fees. Because Urban Retreat did not appeal the judgment, Urban Retreat cannot have incurred any conditional appellate fees for which Ms. Willis can be vicariously liable.33 For the first time on appeal, BPMT argues that it could have asserted that Ms. Willis was personal ly liable, in the manner of a partner, on BPMT’s lease. App’ee.Br. at 25. However, BPMT’s motion for summary judgment merely asked the court to find that Ms. Willis was liable for the “debt arising from [Urban Retreat’s] default” on the lease. Since BPM T’s summary judgment argument was premised exclusively on a theory of vicarious liability for Urban Retreat’s debt, rather than a finding that Ms. Willis was independently and individually liable on the lease itself, BPMT cannot now argue that Ms. Willis h as independent liability to BPMT for a breach of contract claim. Fleming & Assoc., L.L.P. v. Barton , 425 S.W.3d 560, 572 (Tex. App.

— Houston [14th Dist.] 2014, pet. filed) (“[S]ummary judgments must stand or fall on the grounds raised therein; we cannot consider grounds raised for the first time on appeal as a basis for affirming or reversing the trial court’s judgment.”); McConnell v. Southsi de Indep. Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1993) (A “motion for summary judgment must itself expressly present the grounds upon which it is made. A motion must stand or fall on the grounds expressly presented in the motion.”). Therefore, there was no independent basis on which the trial court could award fees against Ms. Willis, as opposed to holding her vicariously liable for fees owed by Urban Retreat. Since Urban R etreat did not appeal and cannot be held liable for conditional appellate fees, Ms. Willis likewise cannot be liable for34 conditional appellate fees. To the extent that the judgment of the court below held otherwise, it is incorrect. CONCLUSION AND PRAYER The trial court incorrectly granted summary judgment in BPMT’s favor and denied Ms. Willis’s cross

- motion. Since Ms. Willis should not be personally liable on BPMT’s claim as a matter of law, appellant asks this Court to reverse the trial court’s judgment and render a judgment that BPMT take nothing against her. Should this Court decline to reverse the trial court’s ruling on summary judgment, Ms. Willis asks this Court to vacate the portion of the judgment awarding BPMT $45,000 in conditional appellate f ees. Respectfully submitted,
A HMAD , Z AVITSANOS , A NAIPAKOS , A LAVI & M ENSING , P.C. /s/ Jane Langdell Robinson Jane Langdell Robinson State Bar No. 24062970 Tiffany Joudi State Bar No. 24065479 Reed N. Smith State Bar No. 24067875 1221 McKinney Street H ouston, Texas 77010 Telephone: (713) 655

- 1101 Telecopier: (713) 655

- 0062 Counsel for Appellant35 CERTIFICATE OF SERVICE I hereby certify that on December 30, 2014, a true and correct copy of the above and foregoing document was served by electron ic filing manager and/or by email in accordance with the Texas Rules of Appellate Procedure on the following counsel of record: Jonathan D. Saikin Tanya Garrison Weycer, Kaplan, Pulaski & Zuber, P.C. 1400 Summit Tower Eleven Greenway Plaza Houston, TX 770 46 Facsimile (713) 961.5341 Counsel for Appellee, BPMT, LLC.
/s/ Jane Langdell Robinson Jane Langdell Robinson36 CERTIFICATE OF COMPLIANCE I certify that this Appellee’s Reply Brief complies with the typeface and word

- count requirements set forth in t he Texas Rules of Appellate Procedure. This Brief has been prepared, using Microsoft Word, in 14

- point Times New Roman font for the text and 12

- point Times New Roman font for any footnotes. This Brief contains 6,745 words, as determined by the word count feature of Microsoft Word, excluding those portions exempted by T EX
. R. A PP
. P . 9.4(i)(1).
/s/ Jane Langdell Robinson Jane Langdell Robinson

### No. 01

- 14

- 00537

- CV

_______________________________ IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS

_______________________________ FRANCIE WILLIS, Appellant,

v. BPMT, LLC, Appellee.

_______________________________ INDEX TO APPENDIX

_______________________________
TAB DESCRIPTION Tab 1 Plaintiff’s Second Amended Petition (CR 97

- 101) Tab 2 Plaintiff’s Motion for Partial Summary Judgment on Liability of Defendant Francie Willis (CR 65

- 71) Tab 3 Stipulated Facts (CR 367

- 68) Tab 4 Texas Tax Code § 171.255 Tab 5 Levy v. Hunt , No. 14

- 00

- 00549

- CV, 2001 WL 306149 (Tex. App.

— Houston [14 th Dist.] March 29, 2001, no pet.) (not designated for publication) Tab 6 Ballard v. Quinn , No. 14

- 97

- 01057

- CV, 1998 WL 787558 (Tex. App.

— Houston [14 th Dist.] Sep. 10, 1998, no pet.) (not designated for publication)