Bryan King and James S. Bumpous/Colorado River Broadcasters, Inc. v. Tolbert Foster/Bryan King and James S. Bumpous ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-93-00314-CV



Bryan King and James S. Bumpous, Appellants

v.

Tolbert Foster, Appellee



and

Colorado River Broadcasters, Inc., Appellant

v.

Bryan King and James S. Bumpous, Appellees



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 485,710, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

We substitute the following in lieu of our previous opinion issued August 31, 1994. Instead of applying the law as it was at the time of the trial, we will apply the current version of article 2.21 of the Texas Business Corporation Act, because it was meant to apply retroactively "unless the liability has been finally adjudicated by a court of competent jurisdiction before the effective date of th[e] Act." Act of May 19, 1993, 73rd Leg., R.S., ch. 215, § 2.26, 1993 Tex. Gen. Laws 418, 459-60. Because the 1993 amendments to article 2.21 (A) and (B) did not substantively change the article for purposes of this case, the end result remains the same under either version of the statute.

Bryan King and James S. Bumpous ("King/Bumpous") brought an action for breach of contract against Colorado River Broadcasters, Inc. ("CRB") and against CRB's president, Tolbert Foster, individually. On the jury's verdict, the trial court rendered judgment against CRB, and ordered that King/Bumpous take nothing by their claims against Foster. King/Bumpous appeal the take-nothing judgment in favor of Foster. CRB appeals the judgment against it. We will affirm the judgment against CRB, reverse the take-nothing judgment against Foster, and remand that portion of the cause.

THE CONTROVERSY

In June 1986, Tolbert Foster and his son-in-law, Robert Walker, incorporated Colorado River Broadcasters, Inc. for the purpose of building and subsequently upgrading a radio station in Bastrop. ⁽¹⁾ Foster provided the financing. Walker supplied the Federal Communications Commission ("FCC") construction permit that he had previously obtained in his own name, and managed the building and upgrading of the station. Although Walker and Foster intended to transfer the construction permit to CRB at some point, they decided to leave it temporarily in Walker's name.

Walker contracted with broadcasting consultants King and Bumpous for consulting services in connection with the development of the Bastrop station. ⁽²⁾ The consulting agreement (the "Agreement") provided that in return for consulting and other services, King/Bumpous would receive 5.5 percent of the net proceeds from the sale of the Bastrop station. King/Bumpous were unaware of CRB's existence or of its role as the developer of the Bastrop station. ⁽³⁾ On its face, the Agreement purported to be between King/Bumpous and Walker, and did not mention either Foster or CRB. Walker signed the Agreement simply, "Robert W. Walker."

King/Bumpous performed services through December 1986 on behalf of the Bastrop station and in accordance with the Agreement. At that time, CRB and Walker contracted to sell the Bastrop station to Beasley Broadcasting, although Walker was still the record owner. On January 6, 1987, the completed station requested a new broadcast station license, still reporting Walker as the station's owner. On January 20, 1987, Walker transferred the permit to CRB.

On March 30, 1987, CRB and Beasley Broadcasting executed an agreement for sale of the Bastrop station under which CRB would receive $1 million for the Class A station, and would receive an additional $3 million plus $1.25 million in non-competition agreements if the FCC approved an upgrade to a Class C/2 station.

Walker informed King/Bumpous of the terms of the sale. He advised them that he had used the initial $1 million payment to cover costs, and there would be no net proceeds for distribution until the upgrade was approved. Due to a long delay, the FCC did not approve the upgrade until early 1989, at which time Beasley Broadcasting made the second payment to CRB. ⁽⁴⁾ CRB distributed all of the proceeds to Walker and Foster. ⁽⁵⁾

In July 1989, when King/Bumpous were unable to get in touch with Walker, they contacted Foster and learned that Walker and Foster had received the proceeds from the sale. Foster told them he knew nothing about the Agreement. ⁽⁶⁾ CRB no longer actively engages in business and its only remaining asset is a 32-acre tract of land in Burnet County. ⁽⁷⁾ CRB is unable to pay King/Bumpous the amount owed under the Agreement.

King/Bumpous sued CRB to recover under the Agreement on alternate theories: (1) CRB was Walker's undisclosed principal in the Agreement; or (2) CRB ratified the Agreement. The jury found CRB liable on both theories and fixed damages in the amount of $147,573.69, representing 5.5 percent of the net proceeds from the sale of the Bastrop station. Additionally, King/Bumpous sought to recover contract damages against Foster ⁽⁸⁾ under alternative theories: (1) Foster had used CRB as his alter ego; or (2) Foster had "denuded" CRB by distributing substantially all of its assets, thus rendering it incapable of paying its debts. The jury failed to find Foster liable under either theory. These appeals ensued.

UNDISCLOSED PRINCIPAL THEORY

Parol Evidence.

In its first point of error, ⁽⁹⁾ CRB asserts the trial court erred in submitting the case to the jury on the theory that CRB was Walker's undisclosed principal. ⁽¹⁰⁾ CRB contends that the Agreement unambiguously indicates that Walker, not CRB, contracted with King/Bumpous, and therefore, parol evidence was inadmissible to vary its terms. ⁽¹¹⁾ CRB concludes that the trial court should have construed the Agreement as a matter of law with respect to the identity of the contracting parties, rather than submitting the issue to the jury. King/Bumpous respond that parol evidence was admissible to prove CRB was Walker's undisclosed principal, and that Walker was acting as CRB's agent. We agree.

When an agent acts within the scope of his authority and contracts in his own name on behalf of an undisclosed principal, the contract is enforceable against the principal. First Nat'l Bank v. Fite, 115 S.W.2d 1105, 1109-10 (Tex. 1938); Sanger v. Warren, 44 S.W. 477, 478 (Tex. 1898). ⁽¹²⁾ Parol evidence is admissible to reveal the identity of the principal and hold him liable on a contract made for his benefit. Heffron v. Pollard, 11 S.W. 165, 166 (Tex. 1889); Nelson v. Texas Power & Light Co., 543 S.W.2d 26, 27 (Tex. Civ. App.--Waco 1976, no writ). Such extrinsic evidence does not vary the terms of the contract, but brings in a new party whom the law binds because of his relationship to the agent. Heffron, 11 S.W. at 166. Thus, the fact that the contract does not reveal the agency of the signing party or the principal's name is not conclusive evidence that the principal was not a party to the contract. Jordan v. Rule, 520 S.W.2d 463, 465 (Tex. Civ. App.--Houston [1st Dist.] 1975, no writ). Moreover, the party with whom the agent contracts has no duty to discover the existence of an agency or the identity of the principal. Hideca Petroleum Corp. v. Tampimex Oil Int'l Ltd., 740 S.W.2d 838, 842 (Tex. App.--Houston [1st Dist.] 1987, no writ). Rather, the agent has the duty to disclose the agency relationship. Id.

In the present case, King/Bumpous were entitled to introduce parol evidence to establish CRB was Walker's undisclosed principal to the Agreement. We conclude the trial court did not err in admitting parol evidence on this issue and submitting the question to the jury. We overrule CRB's first point of error.

Jury Instructions On Actual Authority.

In its third point of error, CRB contends the trial court erred in overruling its objection to the instruction on actual authority included in Question No. 1 because the instruction was an improper statement of the law. Question No. 1 and the accompanying instructions were as follows:

Did Colorado River Broadcasters, Inc. contract with Bryan King and Steve Bumpous for performance of the services outlined in the Consulting Agreement?

In deciding whether the parties reached an agreement, you may consider what they said and did in light of the surrounding circumstances, including any earlier course of dealing. You may not consider the parties' unexpressed thoughts or intentions.

A corporation's conduct includes the conduct of a person who acts with the corporation's authority.

You are further instructed that "actual authority" for a person to act for a corporation arises from the corporation's agreement that the person act on behalf and for the benefit of the corporation. If a corporation so authorizes a person to perform an act, that person is also authorized to do whatever is proper, usual, and necessary to perform the act expressly authorized. "Actual authority" also includes the authority that the corporation either intentionally or by want of due care allows the person to believe he has to represent the corporation.

Specifically, CRB asserts (1) the trial court did not give the proper instruction on implied actual authority that this Court approved in Duval County Ranch Co. v. Wooldridge, 674 S.W.2d 332, 334 (Tex. App.--Austin 1984, no writ); and (2) the "hybrid actual authority/negligence instruction" is an incorrect statement of the law.

A principal confers actual authority on an agent by conduct that either intentionally or negligently allows the agent to believe he or she has been given actual authority to represent the principal. Polland & Cook v. Lehmann, 832 S.W.2d 729, 738 (Tex. App.--Houston [1st Dist.] 1992, writ denied); Austin Teachers Fed. Credit Union v. First City Bank-Northwest Hills, 825 S.W.2d 795, 799 (Tex. App.--Austin 1992, writ denied). Actual authority includes both express and implied authority. Polland & Cook, 832 S.W.2d at 738. Implied authority is the authority to do all things proper, usual, and necessary to exercise any authority granted to a person. Duval County Ranch Co., 674 S.W.2d at 334.

Contrary to CRB's assertion, the final paragraph of the above-quoted portion of the charge does in fact include a correct definition of implied actual authority as expressed in Duval County Ranch Co. Id. Moreover, as stated above, a principal may negligently confer actual authority on an agent by conduct that leads the agent to believe he has authority to act on behalf of the principal. ⁽¹³⁾ We conclude the trial court did not err in overruling CRB's objection to the charge. We overrule CRB's third point of error.

In its fourth point of error, CRB contends the trial court abused its discretion in refusing CRB's request to submit to the jury the following instruction on course and scope of authority under Question No. 1:

You are instructed that before you answer "Yes" to this question, you must find both that Robert Walker had authority on behalf of Colorado River Broadcasters, Inc. to execute the "Consulting Agreement" in its behalf, and that Robert Walker executed the "Consulting Agreement" while in the scope of his duties as an officer of Colorado River Broadcasters, Inc., as distinguished from his individual capacity as holder of the FCC approved KSSR-FM construction permit.

CRB's position is that the charge, as given, did not advise the jury that in order to find CRB was a party to the Agreement, they first had to find Walker acted within the course and scope of his authority when he contracted with King/Bumpous. King/Bumpous rejoin that the instructions did in fact strictly limit the jury's consideration to Walker's actions it found to be within the scope of his authority.

It is a basic rule of agency that the principal is not liable to a third party for an agent's acts in excess of his authority. Webb v. Webb, 602 S.W.2d 127, 129 (Tex. Civ. App.--Austin 1980, no writ). ⁽¹⁴⁾ It was therefore incumbent upon King/Bumpous to secure a jury finding that Walker's conduct in contracting with King/Bumpous was within the scope of his actual authority, either express or implied. See Pasadena Assocs. v. Connor, 460 S.W.2d 473, 479 (Tex. Civ. App.--Houston [14th Dist.] 1970, writ ref'd n.r.e.) (stating that a finding of agency alone is insufficient without a finding that acts in question were within scope of agent's authority).

The trial court must submit such instructions and definitions as are proper to enable the jury to render a verdict. Tex. R. Civ. P. 277. This rule affords the trial court broad discretion in determining what instructions to submit. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex. 1974). An instruction is proper if it finds support in any evidence of probative force and if it might assist the jury in answering the questions submitted. Louisiana & Ark. Ry. v. Blakely, 773 S.W.2d 595, 598 (Tex. App.--Texarkana 1989, writ denied).

In the present case, the trial court instructed the jury that a corporation's conduct included the conduct of a person who acted with the corporation's authority, and correctly defined the law on actual authority. By finding that CRB was a party to the Agreement, the jury necessarily found Walker acted within his actual authority in contracting with King/Bumpous. Any acts Walker had actual authority to perform were within the course and scope of his authority. Thus, the trial court did not abuse its discretion in refusing CRB's requested explanatory instruction when its substance was already included in the charge. See id. at 599. CRB was not entitled to submission of a requested instruction when it was merely a shade or repetition of an instruction already in the charge. See Tex. R. Civ. P. 278; Yellow Cab & Baggage Co. v. Green, 277 S.W.2d 92, 94-95 (Tex. 1955); Louisiana & Ark. Ry., 773 S.W.2d at 599. In fact, the trial court should refuse to submit unnecessary instructions even if they correctly state the law. Louisiana & Ark. Ry., 773 S.W.2d at 599.

We conclude the trial court did not abuse its discretion in refusing to submit CRB's requested instruction. We overrule CRB's fourth point of error.

Legal and Factual Sufficiency of the Evidence.

In its fifth point of error, CRB asserts that the evidence was legally insufficient, or in the alternative, factually insufficient, to support the jury's answer to Question No. 1. CRB contends that Walker's out-of-court statements, reported by King/Bumpous, were the sole evidence of Walker's agency relationship with CRB, and that such statements are the equivalent of no evidence. See Texoma Broadcasting Co. v. Darter, 296 S.W.2d 277, 278 (Tex. Civ. App.--Fort Worth 1956, no writ) (stating declarations of purported agent incompetent to establish either agency or scope of authority). A complaint that the evidence was factually insufficient to support a jury finding must be raised by a motion for new trial. Tex. R. Civ. P. 324(b)(2); Tex. R. App. P. 52(d). Because CRB did not file a motion for new trial, it waived its factual insufficiency point. ⁽¹⁵⁾

In reviewing legal insufficiency points, we must consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). If there is any evidence of probative force to support the finding, we must overrule the point and uphold the finding. In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). No-evidence points may be sustained only when the record discloses (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence established conclusively the opposite of a vital fact. Cecil v. Smith, 804 S.W.2d 509, 510 n.2 (Tex. 1991).

King/Bumpous had the burden of proving Walker was acting as CRB's duly authorized agent in contracting with them. ⁽¹⁶⁾ See Buchoz v. Klein, 184 S.W.2d 271 (Tex. 1944); Moore v. Office of the Attorney Gen., 820 S.W.2d 874, 877 (Tex. App.--Austin 1991, no writ) (stating one who relies on existence of agency relationship or asserts act was within scope of agent's authority has burden of proving such allegations by preponderance of evidence). The status of agency is one of ultimate fact derived from underlying facts and may be found from either direct or circumstantial evidence. Stanford v. Dairy Queen Prods., 623 S.W.2d 797, 800-01 (Tex. App.--Austin 1981, writ ref'd n.r.e.).

Agency is a consensual relationship between two parties in which one acts on behalf of the other, subject to the other's control. Noble Exploration, Inc. v. Nixon Drilling Co., 794 S.W.2d 589, 592 (Tex. App.--Austin 1990, no writ); see also Hartford Casualty Ins. Co. v. Walker County Agency, Inc., 808 S.W.2d 681, 687 (Tex. App.--Corpus Christi 1991, no writ) (stating agent is authorized by another to transact business on the other's behalf); American Employers Ins. Co. v. Kilgore, 412 S.W.2d 67, 69 (Tex. Civ. App.--Amarillo 1967, writ ref'd n.r.e.) (noting no agency exists if party not acting on another's behalf). Agency exists through the express or implied contract of the parties, or is created by law. Green v. Hannon, 369 S.W.2d 853, 856 (Tex. Civ. App.--Texarkana 1963, writ ref'd n.r.e.). ⁽¹⁷⁾ An agency relationship may only arise at the will and by the act of the principal, and its existence must be proved by tracing it to some act of the principal. Thermo-Products Co. v. Chilton Indep. Sch. Dist., 647 S.W.2d 726, 732 (Tex. App.--Waco 1983, writ ref'd n.r.e.).

There is no presumption that actions of corporate agents are within the scope of their authority. Cotton Belt R.R. v. Hendricks, 768 S.W.2d 865, 870 (Tex. App.--Texarkana 1989, no writ). Rather, the power of a corporate agent to bind the corporation depends upon the authority conferred by the bylaws, charter, and resolutions of the directors, as well as the general rules governing principal and agent. Tex. Bus. Corp. Act Ann. art. 2.42(B) (West 1980); Hanson Southwest Corp. v. Dal-Mac Const. Co., 554 S.W.2d 712, 719 (Tex. Civ. App.--Dallas 1977, writ ref'd n.r.e.). ⁽¹⁸⁾ The corporation may confer actual authority on an agent either expressly or by implication. Hanson Southwest Corp., 554 S.W.2d at 719. Thus, actual authority of an agent may be implied from the nature of his position, or from the corporation's custom or habit of doing business. Templeton, 555 S.W.2d at 537; see also Citizen's Bridge Co. v. Guerra, 248 S.W.2d 538, 541 (Tex. Civ. App.--San Antonio 1952), rev'd in part on other grounds, 258 S.W.2d 64 (Tex. 1953); 20 Robert W. Hamilton, Business Organizations § 582, at 49 (Texas Practice 2d ed. 1973) (stating agent's actual authority may be implied from board of directors' long acquiescence in agent's exercising authority in question); 2 Ira P. Hildebrand, The Law of Texas Corporations § 639, at 588 (1942) (stating that if directors acquiesce to agent conducting business without interference, such agent has express authority co-extensive with directors' authority to bind corporation).

Review of Evidence.

The following evidence supports the jury's finding that Walker was CRB's agent acting within the scope of his authority when he contracted with King/Bumpous.

Bryan King testified that Walker conducted all contract negotiations concerning the radio station such as acquiring the transmitter, the studio equipment, and the land in Bastrop and Burnet; King stated that Walkder was "the point man for the whole project." King testified that he and Bumpous constructed the station under a separate agreement. In connection with that work, they billed the station "KSSR" for $5,310 in March 1987, and CRB paid the bill. Walker never instructed King not to mention the consulting agreement to Foster.

Steve Bumpous testified that Walker acted on a daily basis on behalf of the Bastrop station. He hired and fired employees, ordered equipment, negotiated a lease for the building, and made arrangements for satellite programming. Walker hired King and Bumpous to construct the station under a separate agreement and CRB paid the bill.

Robert Walker testified by deposition that he had whatever authority the corporate documents conferred on him. He stated he took a more active role than Foster in pursuing the upgrade, and did all of the work. He was unaware of any restrictions that CRB placed on his right to pursue the upgrade.

Tolbert Foster testified he loaned Walker the money to purchase the construction permit. Walker was to contribute the construction permit and the plans for an upgrade and Foster was to contribute the financing. Because of tax considerations, Foster and Walker agreed to form a subchapter S corporation as the entity through which to develop the Bastrop station. From the beginning, they intended to transfer the construction permit to CRB when it became convenient.

CRB's certificate of incorporation, dated June 6, 1986, listed Foster and Walker as directors. Foster testified that at the first meeting the board approved the by-laws, and elected Foster as president and Walker as vice-president and secretary. The corporation issued 700 shares to Foster and 300 shares to Walker. The by-laws provided that the vice-president "shall perform the duties and have the authority and exercise the powers of the president. [He] shall perform such other duties and have such other authority as the . . . president may from time to time delegate." The president "shall have general and active management and control of the business and affairs of the corporation . . . ."

Foster stated he was not aware of any restrictions, outside the corporate documents, placed on Walker's authority to act for CRB. Foster testified he and Walker had no delineation of duties; they just did things as they came up. However, Walker did the active footwork. Foster admitted that Walker made arrangements for the studio, the equipment, and rented tower space, all in his own name, and CRB paid the bills. Foster conceded that many of the contracts Walker made in his own name, and that CRB paid, were not formally approved by the board of directors. Both he and Walker wrote checks on the corporate checkbook.

Janette Hawkins testified that at the time of the events in this suit, she was the president of Hawkins Broadcasting which owned KHLB, a radio station located in Burnet, Texas. Hawkins Broadcasting contracted with the Bastrop station wherein the Bastrop station agreed to compensate Hawkins Broadcasting for KHLB to change frequencies and move its tower site. Negotiations over the deal continued for several months, largely with Walker. The parties executed a final written agreement in December 1986. Walker signed the contract simply as "Robert W. Walker." The contract does not mention CRB, although CRB is the entity that paid Hawkins Broadcasting under the contract.

Robert Botik testified that he did sales consulting work for the Bastrop station between January and May 1987, and that Walker represented the Bastrop station in all their dealings.

Based on the foregoing summary, we conclude the body of evidence provided a reasonable basis for concluding that Walker was CRB's agent in developing the Bastrop station, and that he acted within his authority in hiring King and Bumpous under the Agreement. We overrule CRB's fifth point of error.

Admissibility of Walker's Out-of-Court Statements.

In its second point of error, CRB asserts the trial court erred in admitting into evidence Walker's out-of-court statements, as reported by King/Bumpous, to prove Walker had authority to bind CRB to the Agreement. ⁽¹⁹⁾ CRB contends that the existence of an agency depends on the purported principal's conduct, and that statements of an alleged agent, standing alone, are legally insufficient to establish agency or the scope of authority. ⁽²⁰⁾ CRB maintains that there was no evidence that either CRB or Foster did anything to indicate Walker had authority to bind CRB to the Agreement, and therefore Walker's out-of-court statements were inadmissible to prove his actual authority.

King/Bumpous argue there was an abundance of other evidence to establish that Walker was CRB's duly authorized agent, and therefore, Walker's statements were admissible as party admissions under Texas Rule of Civil Evidence 801(e)(2)(D) and as corroboration of other evidence of agency.

An alleged agent's out-of-court declarations, standing alone, are insufficient to establish agency or the scope of authority, but once there is prima facie evidence to show the fact of agency, such statements may be admitted in corroboration. McAfee v. Travis Gas Corp. 153 S.W.2d 442, 448 (Tex. 1941); Thermo-Products Co., 647 S.W.2d at 733. ⁽²¹⁾ An out-of-court statement is not hearsay if it is offered against a party and is "a statement by his agent or servant concerning a matter within the scope of his agency or employment, during the existence of the relationship . . . ." Tex. R. Civ. Evid. 801(e)(2)(D). Thus, an out-of-court statement is admissible under Rule 801(e)(2)(D) if: (1) the declarant was the party's agent, (2) at the time he made the statement, and (3) the statement concerned a matter within the scope of the agency. ⁽²²⁾ See Fojtik v. First Nat'l Bank, 752 S.W.2d 669, 672 (Tex. App.--Corpus Christi 1988), writ denied per curiam, 775 S.W.2d 632 (Tex. 1989); State v. Buckner Constr. Co., 704 S.W.2d 837, 846 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.).

If there is a dispute regarding whether an agency relationship in fact existed or whether the statement concerned a matter within the scope of the agency, the issue is for the court to determine before admitting the statement into evidence. See Handel v. Long Trusts, 757 S.W.2d 848, 851 (Tex. App.--Texarkana 1988, no writ) (holding trial court properly excluded out-of-court statement when record did not show it concerned matter within scope of declarant's employment); Norton v. Martin, 703 S.W.2d 267, 272 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.) (holding trial court properly excluded statements when evidence did not establish declarant was party's employee or agent).

After CRB objected to the admission of Walker's out-of-court statements as evidence of his alleged authority to contract on CRB's behalf, the trial court ruled such testimony admissible under rule 801(e)(2)(D), subject to the introduction of evidence sufficient to support a finding that Walker was acting within the scope of his authority. See Tex. R. Civ. Evid. 104(b) (providing that when relevancy of evidence depends on fulfillment of condition of fact, court shall admit it subject to introduction of evidence sufficient to support a finding of the fulfillment of the condition). The inquiry, then, is whether there was evidence apart from Walker's out-of-court statements regarding his agency status and scope of authority in connection with CRB.

Based on our review of the evidence in connection with CRB's legal insufficiency point above, we conclude that there was independent evidence that Walker was CRB's agent and that he acted within the scope of his authority in contracting with King/Bumpous for consulting services. Specifically, we refer to Foster's testimony regarding the fact that Walker did all of the necessary contracting for the Bastrop station and CRB paid the bills. Foster stated further that CRB never restricted Walker's power to act on its behalf other than in the by-laws, which conferred generally the power to actively manage and control corporate business. We conclude the trial court did not err in admitting Walker's out-of-court statements regarding his agency for CRB and the scope of his authority. We overrule CRB's second point of error.

Because we will affirm the judgment against CRB on the ground that CRB was Walker's undisclosed principal, any error in connection with the alternate ground of ratification is harmless. See Port Terminal R.R. Ass'n v. Richardson, 808 S.W.2d 501, 508 (Tex. App.--Houston [14th Dist.] 1991, writ denied); Federal Pac. Elec. Co. v. Woodend, 735 S.W.2d 887, 896 (Tex. App.--Fort Worth 1987, no writ); Tex. R. App. P. 81(b)(1); 6 Texas Civil Practice § 48:8 & n.70 (Diane M. Allen et al. eds., 1992 ed.). We therefore need not address CRB's points of error eight through fourteen, complaining of error regarding the ratification theory. We also need not address CRB's sixth and seventh points of error asserting the trial court erred in denying CRB's motion for summary judgment and CRB's motion for judgment notwithstanding the verdict.

ATTORNEY'S FEES

In its fifteenth and sixteenth cross points of error, CRB asserts the trial court erred in submitting a question regarding King/Bumpous's attorney's fees to the jury, and in subsequently refusing to modify the judgment to omit their recovery of attorney's fees. CRB argues that King/Bumpous failed to plead and prove proper presentment of their claim to CRB as required by section 38.002(2) of the Texas Civil Practice & Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 38.002(2) (West 1986). ⁽²³⁾ Section 38.002(2) provides that in order to recover attorney's fees under chapter 38 "the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party . . . ." (Emphasis added). King/Bumpous respond that the record reflects they sent notice of their claim to Foster, CRB's registered agent.

A prerequisite for recovery of attorney's fees is a presentment of the claim to the opposing party and that party's failure to tender performance within thirty days of presentment. Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981); Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 904 (Tex. App.--Austin 1991, no writ). The purpose of the presentment requirement is to afford the party against whom it is asserted an opportunity to pay the claim and thereby avoid incurring an obligation to pay attorney's fees. Jones, 614 S.W.2d at 100; Carrington v. Hart, 703 S.W.2d 814, 818 (Tex. App.--Austin 1986, no writ). The record reflects that King/Bumpous complied with section 38.002(2) by presenting their claim to Foster, CRB's duly authorized agent, as the statute permits. See Richard Gill Co. v. Jackson's Landing, 758 S.W.2d 921, 927 (Tex. App.--Corpus Christi 1988, writ denied) (holding presentment of claim to partner constituted presentment to partnership). We overrule CRB's fifteenth and sixteenth points of error.

DENUDING THEORY

Proof of Actual Fraud.

In their first point of error, King/Bumpous assert the trial court erred in its submission of the denuding theory by requiring them to prove Foster used CRB to perpetrate an actual fraud. Question No. 4 and the jury's response were as follows:

Did Tolbert Foster cause Colorado River Broadcasters, Inc. to be used to perpetrate an actual fraud on Bryan King and Steve Bumpous, primarily for the direct personal benefit of Tolbert Foster, by distributing all or substantially all of the corporation's assets to its shareholders, with the result that the corporation was rendered incapable of paying its debts?

ANSWER: NO

(Emphasis added). A definition of actual fraud accompanied Question No. 4. The source of the italicized portions, of which King/Bumpous complain, is article 2.21 of the Texas Business Corporations Act. Article 2.21 provides:

A.  A holder of shares . . . shall be under no obligation to the corporation or to its obligees with respect to:

. . .

(2) any contractual obligation of the corporation on the basis that the holder . . . is or was the alter ego of the corporation, or on the basis of actual or constructive fraud, or a sham to perpetrate a fraud, or other similar theory, unless the obligee demonstrates that the holder . . . caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder . . . .

B. The liability of a holder . . . of a corporation for an obligation that is limited by Section A of this article is exclusive and preempts any other liability imposed on a holder . . . of a corporation for that obligation under common law or otherwise, except that nothing contained in this article shall limit the obligation of a holder . . . to an obligee of the corporation when:

(1) the holder . . . has expressly assumed, guaranteed, or agreed to be personally liable to the obligee for the obligation; or

(2) the holder . . . is otherwise liable to the obligee for the obligations under this Act or another applicable statute.

. . . .

Tex. Bus. Corp. Act Ann. art. 2.21 (West Supp. 1995).

King/Bumpous argue that article 2.21 applies solely to theories which function to disregard the corporate entity and impose personal liability on the shareholder. They assert the denuding theory does not disregard the corporate entity because it does not impose unlimited personal liability on shareholders for corporate obligations, but merely traces and attaches to corporate assets in the hands of shareholders.

In interpreting a statute we must ascertain the legislature's intent. Minton v. Frank, 545 S.W.2d 442, 445 (Tex. 1976); see also Tex. Gov't Code Ann. § 312.005 (West 1988). We begin with an analysis of the statute. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983).

The theories of actual fraud, constructive fraud, sham to perpetrate a fraud, and other similar theories enumerated in article 2.21(A)(2) are different grounds on which a court may disregard the corporate entity and impose personal liability on shareholders for corporate obligations. ⁽²⁴⁾ See Castleberry v. Branscum, 721 S.W.2d 270, 272-73 (Tex. 1986). Foster does not dispute this contention, but instead argues that the denuding theory is in fact a means to pierce the corporate veil, and therefore, is covered by the "actual fraud" requirement of article 2.21(A)(2).

The supreme court has stated that under the denuding theory a court does not disregard the corporate entity. Castleberry, 721 S.W.2d at 271 n.1. ⁽²⁵⁾ The court first recognized the denuding theory in World Broadcasting System, Inc. v. Bass, 328 S.W.2d 863 (Tex. 1959). In that case, the stockholders of a corporation sold all its assets and distributed the proceeds to themselves. In consequence, the corporation was unable to pay its contractual obligation to World Broadcasting. The supreme court stated the stockholders had "denuded" the corporation of its assets and therefore deprived corporate creditors of any funds from which to collect claims. Id. at 864. The court held the stockholders liable for the corporation's outstanding debts to the extent of the corporate assets they had appropriated. Id. at 864, 866. The rationale for imposing liability on the assets the stockholders received was as follows:

The law which sends a corporation into the world with the capacity to act imposes upon its assets liability for its acts. The corporation cannot disable itself from responding by distributing its property among its stockholders, and leaving remediless those having valid claims. In such a case the claims, after being reduced to judgments, may be satisfied out of the assets in the hands of the stockholders.

[W]hen a corporation divests itself of all its assets by distributing them among the stockholders, those having unsatisfied claims against it may follow the assets . . . . A corporation cannot by divesting itself of all of its property, leave remediless the holder of a contingent claim, or the obligee of an executory contract . . . .

Id. at 864-65 (quoting Pierce v. United States, 255 U.S. 398 (1920)).

Under the denuding theory, the shareholder is liable for the corporate obligation only to the extent of the corporate assets received. Id. at 864, 866; A.R. Clark Inv. Co. v. Green, 375 S.W.2d 425, 437 (Tex. 1964); Fagan v. La Gloria Oil & Gas Co., 494 S.W.2d 624, 633 (Tex. Civ. App.--Houston [14th Dist.] 1973, no writ); Burton Mill & Cabinet Works, Inc. v. Truemper, 422 S.W.2d 825, 827 (Tex. Civ. App.--Waco 1967, writ ref'd n.r.e.). Conversely, when a court disregards the corporate entity, personal liability for the full amount of the corporate obligation is imposed on the individual; his possession of any assets is immaterial to the issue of liability vel non. ⁽²⁶⁾ Under the denuding theory the court recognizes the corporation's separate identity by tracing corporate assets into the hands of shareholders. The corporate assets that a shareholder has received simply define the extent or amount of the shareholder's liability. Because the denuding theory does not involve the piercing of the corporate veil, Foster's claim that the denuding theory is the equivalent of actual fraud must fail.

Proof of constructive fraud or other similar theories.

Foster further argues that the denuding theory is a form of constructive fraud, and thus falls within article 2.21(A)(2) on that basis. On the contrary, in decisions addressing shareholder liability for corporate obligations, "constructive fraud" is a ground on which a claimant may pierce the corporate veil without the burden of proving actual fraud. See Castleberry, 721 S.W.2d at 273. ⁽²⁷⁾ We do not agree with Foster's contention that the denuding theory is a form of constructive fraud.

In a final effort to fit the denuding theory within article 2.21(A), Foster contends that the legislature intended to include the denuding theory in article 2.21(A)(2) by inserting the words "or other similar theory." However, every theory specifically listed in article 2.21(A)(2) is a "piercing the corporate veil theory," and similarly, any other theory included in this article must also involve piercing the corporate veil.

Under the rule of ejusdem generis, where specific and particular enumerations of persons or things in a statute are followed by general words, the general words are not to be construed in their wildest meaning or extent, but are to be treated as limited and applying only to persons or things of the same kind or class as those expressly mentioned.

Standford v. Butler, 181 S.W.2d 269, 272 (Tex. 1944) (holding statute providing that "candidates for Governor and for all other State offices" did not include the position of presidential elector since the Governor is a State office and an elector is a position created by the U.S. Constitution) (citing Farmers' & Mechanics' Nat'l Bank v. Hanks, 137 S.W. 1120, 1124-25 (Tex. 1911)). We therefore sustain King/Bumpous's first point of error.

Submission of the Denuding Theory.

In his first cross-point of error, Foster asserts the trial court should not have submitted the denuding theory to the jury because it is not applicable to this case and King/Bumpous failed to tender a question on the denuding theory in substantially correct wording. See Tex. R. Civ. P. 278. The trial court refused King/Bumpous's request to submit the following question:

Were all or substantially all of the assets of Colorado River Broadcasters, Inc. distributed to its stockholders, with the result that the corporation was rendered incapable of paying its debts? ⁽²⁸⁾  

Specifically, Foster argues that in the cases applying the denuding theory all (not "substantially all") of the corporation's assets were distributed to stockholders. See, e.g., World Broadcasting Sys., 328 S.W.2d at 863-64; Inesco, 567 S.W.2d at 830. Foster contends the denuding theory does not apply to this case because CRB continues to own a piece of land in Burnet County. ⁽²⁹⁾

Although cases applying the denuding theory involve situations in which all of the corporate assets were distributed, the rationale of the theory is that the law imposes on corporate assets liability for a corporation's acts. World Broadcasting Sys., 328 S.W.2d at 864. Therefore, a corporation may not disable itself from satisfying its creditors' claims by distributing its assets among shareholders so as to leave without remedy those having valid claims. Id. at 863-64; A. R. Clark Inv., 375 S.W.2d at 437. In World Broadcasting System, the supreme court noted that the corporation had been "stripped of its property as completely and effectively as if it had been dissolved and its assets appropriated by respondents." World Broadcasting Sys., 328 S.W.2d at 866.

In the present case, the following facts are undisputed: Foster and Walker organized CRB for the sole purpose of developing, upgrading, and eventually selling the Bastrop station. The station has been sold, and all of the proceeds have been distributed. Although Foster and Walker have not formally dissolved CRB, neither plans to conduct business through it. Even though CRB continues to own a piece of land in Burnet, its value is small in relation to the corporate assets distributed. CRB's distribution of the net proceeds from the sale of the Bastrop station to Foster and Walker rendered CRB unable to pay its debt to King/Bumpous. King/Bumpous are left with no remedy. We do not believe that each and every asset must be distributed before the denuding theory applies. When the policies, purposes, and rationale behind the theory are applicable, the theory applies. They apply here and the expression referring to a distribution of "substantially all" the corporate assets accurately posed the issue for the jury when joined with the remainder of the query. We overrule Foster's first cross-point of error.

Exceptions to exclusive liability under 2.21(B).

Foster points to article 2.21(B) for the proposition that his liability under a denuding theory is precluded because section (B) states that liability "is exclusive and preempts any other liability imposed . . . under common law or otherwise . . . ." Tex. Bus. Corp. Act Ann. art. 2.21 (West Supp. 1995). We disagree with Foster's interpretation of the statute. His interpretation does not account for subsection (B)(2), which provides a qualification to the rule. In fact, a holder's liability is not limited when the holder is otherwise liable under another applicable statute. Id. Article 2.38(B) states: "A distribution may not be made by a corporation if: (1) after giving effect to the distribution, the corporation would be insolvent . . . ." Tex. Bus. Corp. Act Ann. art. 2.38(B) (West Supp. 1995). The distribution of substantially all of CRB's assets effectively rendered the corporation insolvent and unable to pay its obligations to King/Bumpous. Therefore, the distribution was unlawful under article 2.38(B) and falls within the article 2.21(B)(2) qualification. We therefore overrule Foster's point of error contending that the denuding theory is not subject to the limitations in article 2.21 set forth in his motion for rehearing.

In light of our disposition of King/Bumpous's first point of error, we do not address their second point contending that the jury's failure to find Foster liable under the denuding theory was against the great weight and preponderance of the evidence.

ALTER EGO THEORY

Sufficiency of the Evidence.

In their third point of error, King/Bumpous assert that the jury's failure to find that Foster used CRB as his alter ego was against the great weight and preponderance of the evidence.

Question No. 3 inquired as follows:

Did Tolbert Foster cause Colorado River Broadcasters, Inc. to be used to perpetrate an actual fraud on Bryan King and Steve Bumpous, primarily for the direct personal benefit of Tolbert Foster, by using the corporation as his alter ego?

ANSWER: NO

In accordance with article 2.21(A)(2), King/Bumpous bore the burden of proving that by using the corporation as his alter ego, Foster used CRB to perpetrate an actual fraud on King/Bumpous primarily for his direct personal benefit. According to the trial court's instructions defining actual fraud, King/Bumpous had to establish that (1) Foster, or his representative with Foster's knowledge, made a misstatement of material fact; (2) that was false; (3) made when Foster or his representative knew of its falsity or acted with reckless disregard for its truth; (4) made with the intention that it should be acted upon; (5) and the party to whom it was made relied upon it and was harmed or damaged.

We will review the entire record to determine whether the jury's failure to find in King/Bumpous's favor is so unjust in light of the evidence that the verdict cannot stand, having due regard for the jury's collective wisdom, their opportunity to observe the witnesses, and our incapacity to weigh the evidence and find a fact differently. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 79 Tex. L. Rev. 515, 525-26 (1991).

Review of the Evidence.

King testified Foster saw King and Bumpous doing maintenance work at the station facility many times over a period of months even though they never submitted any bills. Foster was present at the meeting with Hawkins Broadcasting during which King played a large role in presenting the Bastrop station's proposal. King stated he never mentioned the Agreement to Foster.

Bumpous also testified he never mentioned the Agreement to Foster, and that Foster observed King/Bumpous doing work for the station. According to both King's and Bumpous's testimony, Foster never made any misstatements of fact to them about CRB's planned role in developing the Bastrop station.

Foster testified he and Walker made a business decision to form CRB to develop and upgrade the Bastrop station based on tax considerations and limited personal liability. They decided to leave the construction permit in Walker's name until it became convenient to transfer it to CRB. It became convenient when a buyer appeared who wished to close the deal as quickly as possible. At that point, Walker and Foster amended CRB's charter so that Foster's seventy shares of outstanding stock became non-voting shares. This allowed them to apply to the FCC for a transfer of the permit using a short form. This was the only reason to change the stock ownership. Foster testified they made an effort to use the short form to accommodate an anxious buyer, not to avoid giving anyone the right to protest.

Foster acknowledged he was aware that King and Bumpous were providing engineering and technical assistance at the station, although he never saw a bill for such services. He said that when he and Walker agreed to sell the Bastrop station, he asked Walker if they were going to owe King/Bumpous money, and Walker told him that he had a "side agreement" with them. Foster did not inquire about the terms of that agreement, and did not think it odd that Walker intended to pay King/Bumpous himself. Walker testified by deposition that he had not disclosed the Agreement to Foster.

Lee Peltzman, an attorney, testified by deposition that CRB's change in stock ownership allowed Walker and Foster to use the shorter form to transfer ownership of the construction permit to CRB. He stated that the advantages of using the short form are that it takes less time, costs less money, and there is no 30-day waiting period and requirement of public notice.

King/Bumpous played a tape recording of a telephone call between the two of them and Foster that occurred in July 1989, after they were unable to contact Walker. They had not told Foster they were recording the call. In the telephone call, Foster repeatedly stated he was not aware of the Agreement. He further said, "I don't see how you could have an agreement with Colorado River Broadcasters and me not be aware of it." At one point King stated, "I kind of suspicioned that Bob had not shared that with you." Foster later said, "[Walker] wasn't authorized to enter into that kind of agreement in my behalf."

King/Bumpous argue that the evidence establishes that Foster participated in intentionally concealing the true ownership of the Bastrop station. They rely heavily on Foster's admissions that although he and Walker always intended to transfer the construction permit to CRB when it became convenient, they continued to report Walker as the owner and manipulated CRB's stock to avoid using the long form (with its requisite public notice) for the transfer of the permit.

When considering great-weight points complaining of a jury's failure to find, we are particularly mindful that the jury was not convinced by a preponderance of the evidence. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). We may set aside the jury's failure to find only if the great weight of that evidence dictates an affirmative answer. Id. As trier of fact, the jury is the sole judge of the witnesses' credibility and the weight to be attached to their testimony. Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 834 (Tex. App.--Austin 1992, writ denied). We may not pass upon the credibility of the witnesses and substitute our judgment for that of the jury simply because some of the evidence would support a different conclusion. Allied Towing Serv. v. Mitchell, 833 S.W.2d 577, 582-83 (Tex. App.--Dallas 1992, no writ).

Based on the above summary of the evidence, we cannot say that the jury's failure to find Foster had purposefully used CRB to perpetrate a fraud on King/Bumpous is against the great weight of the evidence. ⁽³⁰⁾ We overrule King/Bumpous's third point of error.

COSTS

In his second cross-point of error, Foster asserts the trial court erred in refusing to award him his costs as a prevailing party without attempting to comply with Texas Rule of Civil Procedure 141.

Texas Rule of Civil Procedure 131 provides: "The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided." However, the trial court may adjudge costs otherwise, for good cause stated on the record. Tex. R. Civ. P. 141. It is error for the trial court to assess costs other than in accordance with rule 131 unless the court states its reasons on the record. Neal v. Ardoin, 594 S.W.2d 145, 147 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ).

In the final judgment, the trial court stated:

The Court finds that the costs of court incurred in this cause are not capable of segregation as between Colorado River Broadcasters, Inc. and Tolbert Foster. The Court therefore finds that good cause exists to adjudge the costs of court in the manner provided below.

IT IS ORDERED that . . . Colorado River Broadcasters, Inc. and Tolbert Foster shall bear all costs of court incurred by them in this cause.

Contrary to Foster's assertion, the trial court did comply with rule 141 by stating good cause on the record. Moreover, Foster does not argue that the trial court's finding of good cause was an abuse of discretion. See Rogers v. Walmart Stores, Inc., 686 S.W.2d 599, 601 (Tex. 1985) (review of trial judge's assessment of costs for good cause governed by abuse of discretion standard). We overrule Foster's second cross-point of error.

CONCLUSION

We reverse that portion of the judgment ordering that King/Bumpous's take nothing by their claims against Foster under the denuding theory and remand that portion of the cause for a new trial. We affirm the remainder of the judgment.

John Powers, Justice

Before Justices Powers, Kidd and B. A. Smith

Reversed and Remanded in Part; Affirmed in Part

Filed: March 15, 1995

Do Not Publish

1.   Foster and Walker were the only two shareholders of CRB. Foster, the president, owned seventy percent of CRB stock; Walker, the vice-president and secretary, owned the remaining thirty percent. They agreed that CRB would build and operate the radio station, and that any profits would be divided in accordance with the division of CRB stock ownership.

2.   Walker negotiated the terms of the Agreement in May 1986, before CRB was incorporated. However, Walker reduced the Agreement to writing and signed it in October 1986, and King/Bumpous signed it in December 1986.

3.   King/Bumpous first became aware of CRB's existence after they had performed under the Agreement. After constructing the station under a separate agreement with Walker, they billed the station for their work in March 1987. CRB paid the bill.

4.   CRB received a total of $5.25 million for the Bastrop station.

5.   Foster testified that he received a check from CRB for $1,736,643.02; Walker received a check for $741,704.15.

6.   King/Bumpous had seen Foster only a few times during the years the Bastrop station was in development, and had not mentioned the Agreement to him.

7.   CRB apparently purchased a large tract of land in Burnet as part of an arrangement with a radio station in Burnet. CRB conveyed approximately five acres of the tract to the Burnet station, which agreed to build a new tower on a site that would not interfere with the Bastrop station. CRB still owns the remaining thirty-two acres adjacent to the Burnet station's tower. King/Bumpous introduced the property tax appraisal of the land that listed its market value as $42,055. In a footnote in their brief, Foster and CRB object to the admission of the property tax appraisal as evidence of market value, asserting that CRB paid nearly $100,000 for the land. They do not raise a point of error in this regard.

8.   ⁸  Walker filed for bankruptcy and is not a party to this suit.

9.   ⁹  Foster's liability on the basis that he used CRB as his alter ego or that he denuded CRB of its corporate assets is dependent on CRB's liability under the Agreement. We therefore address CRB's points first.

10.   Question No. 1 submitted the undisclosed principal theory as follows: "Did Colorado River Broadcasters, Inc. contract with Bryan King and Steve Bumpous for performance of the services outlined in the consulting agreement?" (Definitions and instructions omitted).

11.   The Agreement does not allude to CRB. The first sentence of the Agreement reads, "For consulting services to Robert Walker, Bryan King and Steve Bumpous (King/Bumpous) will receive an amount equal to 5.5% of the net proceeds when KSSR-FM is sold." Walker signed the Agreement simply as "Robert W. Walker."

12.  The agent is also individually liable on the contract, although the third party must elect to recover from either the principal or the agent. Medical Personnel Pool of Dallas, Inc. v. Seale, 554 S.W.2d 211, 214 (Tex. Civ. App.--Dallas 1977, writ ref'd n.r.e.).

13.  In a post-submission brief, CRB appears to argue that the only type of authority a principal may confer negligently is apparent authority. Apparent authority, unlike actual authority, is based on estoppel and arises from the principal's conduct that would lead a reasonably prudent third party to believe that the agent had authority to act. Curry v. Lone Star Steel Co., 676 S.W.2d 205, 210 (Tex. App.--Fort Worth 1984, no writ). "Thus, both actual and apparent authority depend for their creation on some manifestations, written or spoken words or conduct by the principal communicated either to the agent (actual authority) or to the third party (apparent authority)." Id. Because a finding of apparent authority depends upon conduct by the principal manifested to a third party, there can be no apparent authority when the principal is not disclosed. Morey v. Page, 802 S.W.2d 779, 785 (Tex. App.--Dallas 1990, no writ).

14.  A principal may also incur liability by subsequently ratifying the agent's unauthorized acts, or by conduct amounting to estoppel. Longoria v. Atlantic Gulf Enters., Inc., 572 S.W.2d 71, 77 (Tex. Civ. App.--Corpus Christi 1978, writ ref'd n.r.e.).

15.  CRB properly preserved its legal insufficiency complaint by raising it in a motion for judgment notwithstanding the verdict. See, e.g., Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991) ("no evidence" points may be raised by either: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury's answer to a vital fact issue; or (5) a motion for new trial).

16.  Although Walker was CRB's vice-president, a corporate officer has no inherent authority to bind by virtue of his office. See Templeton v. Nocona Hills Owners Ass'n, Inc., 555 S.W.2d 534, 538 (Tex. Civ. App.--Texarkana 1977, no writ). A corporation's board of directors, not its officers, is charged by statute with managing corporate affairs. See Tex. Bus. Corp. Act Ann. art. 2.31 (West Supp. 1995); Templeton, 555 S.W.2d at 537; Ennis Business Forms, Inc. v. Todd, 523 S.W.2d 83, 85 (Tex. Civ. App.--Waco 1975, no writ).

17.  An express agency is usually created by written agreement and an implied agency is created by an oral contract or a consensual relationship. Green, 369 S.W.2d at 856; see also Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992) (noting existence of agency does not depend on express appointment by principal, but may be implied from parties' conduct under the circumstances); Carr v. Hunt, 651 S.W.2d 875 (Tex. App.--Dallas 1983, writ ref'd n.r.e.) (noting consent of principal and agent necessary to create agency, which may be express or implied by their words and conduct). There is no difference in principle between an express and implied contract of agency, but the terms reflect differences in the character of proof by which the relationship of principal and agent is established. McDorman v. Goodell, 69 S.W.2d 428, 432 (Tex. Civ. App.--El Paso 1934, no writ).

18.  Article 2.42(B) provides: "All officers and agents of the corporation, as between themselves and the corporation, shall have such authority and perform such duties in the management of the corporation as may be provided in the bylaws, or as may be determined by resolution of the board of directors not inconsistent with the bylaws." Tex. Bus. Corp. Act Ann. art. 2.42(B) (West 1980).

19.  CRB does not point to any specific testimony by King or Bumpous during which they quoted Walker, but objects generally to all such testimony.

20.  It is not entirely clear from CRB's brief whether it is arguing: (1) there was no independent evidence that Walker was CRB's agent; or (2) although Walker was CRB's agent, there was no independent evidence Walker was acting within the scope of his authority in entering the Consulting Agreement with King/Bumpous. We will address both contentions in our opinion.

21.  The general rule that an alleged agent's declarations are inadmissible against the principal without independent evidence of agency does not apply to an agent's in-court testimony. Cook v. Hamer, 309 S.W.2d 54, 58 (Tex. 1958).

22.  Before the adoption of the Texas Rules of Civil Evidence in 1983, the law provided that an agent's hearsay statements were admissible against the principal only after the trial judge first found the statements were within the scope of the agent's authority to speak on the principal's behalf. Norton v. Martin, 703 S.W.2d 267, 272 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.) (citing Big Mack Trucking Co. v. Dickerson, 497 S.W.2d 283, 288 (Tex. 1973)).

23.  A party may recover attorney's fees under chapter 38 for a claim under an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 1986).

24.  Ordinarily, the separate identity of a corporation shields its shareholders, officers, and directors from personal liability for corporate obligations. Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986); Kern v. Gleason, 840 S.W.2d 730, 736 (Tex. App.--Amarillo 1992, no writ). Courts will not disregard the corporate entity unless the individuals are using the corporate form as a sham to perpetrate a fraud, to escape personal liability, to avoid the effect of a statute, or in a few other exceptional situations. Torregrossa v. Szelc, 603 S.W.2d 803, 804 (Tex. 1980); Bell Oil & Gas Co. v. Allied Chem. Corp., 431 S.W.2d 336, 340 (Tex. 1968); Pace Corp. v. Jackson, 284 S.W.2d 340, 351 (Tex. 1955). The purpose in disregarding the corporate entity is to prevent individuals from using the corporate form as a cloak to commit fraud or illegal act. Castleberry, 721 S.W.2d at 273.

25.  The supreme court also noted three other theories which do not disregard the corporate entity: the trust-fund doctrine, fraudulent conveyance, and breach of fiduciary duties. Castleberry, 721 S.W.2d at 271 n.1.

26.  Foster asserts that the handful of decisions addressing the denuding theory categorize it under the doctrine of disregarding the corporate entity. See Francis v. Beaudry, 733 S.W.2d 331, 335 (Tex. App.--Dallas 1987, writ ref'd n.r.e.) (holding that both the alter ego and denuding theories supported the plaintiff's right to pierce the corporate veil and recover his claim directly from a stockholder); see also Inesco, Inc. v. Sears, 567 S.W.2d 827, 830 (Tex. Civ. App.--Beaumont 1978, writ ref'd n.r.e.) (stockholder held personally liable on plaintiff's claim). This is incorrect in light of the supreme court's statement in Castleberry that the denuding theory is not a basis on which to disregard the corporate entity, but is a distinct doctrine. Castleberry, 721 S.W.2d at 271 n.1.

27. As the dissent noted in Castleberry, this holding was a significant departure from previous decisions holding that the corporate veil would be pierced only in extraordinary circumstances. Castleberry, 721 S.W.2d at 277 (Gonzalez, J., dissenting) (citations omitted). Such a standard allowed courts to pierce the corporate veil any time it would be unfair to recognize the corporate existence. Id. In an apparent response to Castleberry, the legislature amended article 2.21 in 1989. Act of May 12, 1989, 71st Leg., R.S., ch. 217, § 1, 1989 Tex. Gen. Laws 974 (since amended). Article 2.21(A)(2) effectively overruled Castleberry by requiring a party seeking to pierce the corporate veil to prove the shareholder purposefully used the corporation to perpetrate an actual fraud.

28.  This requested question is similar to the submission of the denuding theory in Hixon v. Pride of Texas Distrib. Co., 683 S.W.2d 173, 176 n.2 (Tex. App.--Fort Worth 1985, no writ), although the court did not address whether such a submission was correct.

29.  During his testimony Foster stated that the tract of land was CRB's only remaining asset.

30.  Because we cannot say that the jury acted against the great weight and preponderance of the evidence in failing to find Foster committed actual fraud, we do not review the evidence regarding Foster's alleged use of CRB as his alter ego.