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Flores v. Robinson Roofing and Construction Co.3/24/2005
OPINION ON REHEARING
After reviewing Appellee's motion for rehearing, we deny the motion. We withdraw our January 13, 2005 opinion and judgment and substitute the following.
INTRODUCTION
Appellants Jose Lopez Flores and Maria Flores appeal a summary judgment in favor of Appellee Robinson Roofing and Construction Company, Inc. Because we hold that there are issues of material fact concerning Appellants' fraudulent transfer claims, we reverse and remand.
BACKGROUND
Jose Flores suffered a brain injury and other injuries while he was working as an employee of M & B Contracting, Inc. M & B was a subcontractor of Robinson Roofing Company, Inc. Flores and his wife, Maria, sued M & B, Robinson Roofing, and others for personal injury damages. During the course of the litigation, M & B filed for bankruptcy , and Robinson Roofing changed its name to R & B Roofing. R & B then filed for bankruptcy, and Appellee Robinson Roofing and Construction Company, Inc. came into existence. In its bankruptcy, R & B listed Appellants as creditors holding a $6,903,000 disputed unsecured claim. However, it did not list its good will or intangible assets. Flores's personal injury suit was abated due to the automatic stay in the R & B Roofing bankruptcy.
Appellants then sued Appellee in the underlying case, alleging that Robinson Roofing fraudulently transferred intangible assets to Appellee. To support their fraudulent transfer claims, Appellants asserted that the two companies were operated by the same principals. Marshall Robinson was president of Robinson Roofing. Bret Barnett, who was married to Robinson's daughter Melissa, was president and a shareholder of M & B, general manager of Robinson Roofing, and president and a director of Appellee. Melissa Robinson Barnett was Appellee's registered agent and its majority shareholder, as well as having been a director and shareholder of M & B.
Appellants also asserted that Robinson Roofing transferred its logo, advertising, graphics, telephone number, and good will to Appellee. Appellants alleged that Robinson Roofing fraudulently transferred those assets after changing its name to R & B Roofing, filing bankruptcy , and dissolving the company in order to escape liability for Jose Flores's tort claim. Southwestern Bell Yellow Pages advertisements for the years 1984-1985, 1990-1991, 1998-1999, and 2000-2001 demonstrate that Appellee had obtained the logo, insignia, and phone number of Robinson Roofing, and in the 2001-2002 ad, Appellee claimed that it had been "Family Owned and Operated for Over 35 Years" even though it had been in business for only three years.
Appellee filed a combined traditional and no-evidence summary judgment motion. In the traditional part of its motion, Appellee argued that, as a matter of law, R & B transferred no goodwill to Robinson Roofing with the intent to defraud Appellants; there was no fraudulent transfer of any kind from R & B to Robinson Roofing; and the good will of R & B had no value at the time of the transfer. In the no-evidence part of its motion, Appellee argued there was no evidence: (1) that the good will of R & B was transferred to Robinson Roofing with the intent to defraud Appellants; (2) that Robinson Roofing was aware of the fraudulent nature of the transfer; (3) that the alleged good will or other assets had any value; and (4) that Appellants were creditors of R & B prior to the transfer. The trial court granted Appellee's summary judgment. Appellants contend that the trial court erred in granting summary judgment because there are questions of material fact.
STANDARD
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