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[W] Flores v. Robinson Roofing & Construction Co.1/13/2005
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 Roofing then filed for bankruptcy, and Appellee Robinson Roofing and Construction Company, Inc. came into existence. In its bankruptcy, R & B Roofing 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. 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. 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.
Appellee filed a motion for summary judgment asserting that no transfer was made with the intent to defraud Appellants and that the good will had no value. Appellants contend that the trial court erred in granting summary judgment because there are questions of material fact on both issues.
Standard of Review
Construction of the Summary Judgment Motion
Appellee moved for summary judgment under rules 166a(i) and 166a(c). The trial court granted the summary judgment, but did not specify which rule it relied on in making its determination. Therefore, we will first review the trial court's judgment under the standards of rule 166a(i). If the appellants failed to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether appellee's summary judgment proof satisfied the less stringent rule 166a(c) burden. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
No-Evidence Summary Judgment
After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evid
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