Court of Appeals of Texas, Second District, Fort Worth
DON CORLEY, JR. APPELLANT
GAYLAN HENDRICKS AND DAN HENDRICKS APPELLEES
THE 141ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; WALKER and PITTMAN, JJ.
T. PITTMAN JUSTICE.
Don Corley Jr. appeals from the trial court's
granting of a no-evidence motion for summary judgment in
favor of Appellees Dan Hendricks and Gaylan Hendricks on his
cause of action for theft under the Texas Theft Liability Act
(the TTLA). He argues in one issue that the trial court erred
by granting no-evidence summary judgment for the Hendrickses,
denying his motion for reconsideration, and awarding
attorney's fees to the Hendrickses under the TTLA.
Because we hold that the trial court erred by granting
summary judgment and abused its discretion by denying the
motion for reconsideration, we reverse and remand.
and Dan began operating an insurance brokerage company called
Senior Security Benefits, Inc. (SSBI) in 2003. They later gave
shares to Dan's wife Gaylan, splitting SSBI's
ownership among the three. For several years, they ran the
business together as directors and officers.
2014, Gaylan, acting as SSBI's CEO, informed Corley that
SSBI was terminating his employment and that he would no
longer receive the profit distributions from SSBI. The
Hendrickses also removed Corley as an officer and director of
SSBI and denied him access to SSBI's books and records.
then filed this lawsuit against the Hendrickses. By amended
petition, he asserted claims for breach of fiduciary duty,
theft under the TTLA, fraud, and civil conspiracy, as well as
a shareholder's derivative action under Texas Business
Organizations Code section 21.563. Tex. Bus. Orgs. Code Ann.
§ 21.563 (West 2012).
the course of the lawsuit, Corley hired an expert to conduct
a forensic audit of SSBI's Quicken accounting records,
which Gaylan initially refused to provide to Corley,
producing them only after the intervention of Corley's
attorney. The expert discovered that Gaylan had moved $2.4
million from SSBI's retained earnings account to
Gaylan's personal account. The entry was made on February
12, 2014 but backdated to appear on SSBI's books on
December 24, 2013, which was before Corley's termination.
expert also discovered that on the same day as the $2.4
million transfer, other entries were made in the records that
recharacterized commission distributions made to Gaylan from
sales of insurance products to an SSBI customer, Countrywide
Healthcare Solutions, Inc. (Countrywide), as repayments on a
personal loan from Gaylan to SSBI. The sales to Countrywide
had been made by SSBI employees, the commissions were paid to
SSBI, and no documentation showed an agreement that Gaylan
would receive the commissions individually for such sales.
The Hendrickses, however, contended that the $2.4 million was
Gaylan's property because it arose from a separate
arrangement she had made with Countrywide.
pretrial discovery, Corley also learned the Hendrickses had
used corporate funds to pay for family vacations. He further
discovered that Gaylan had appropriated commissions under a
"letter of understanding" with another SSBI
customer, Central United Life Insurance Company (CUL).
Gaylan, as a representative of SSBI, signed an agreement with
CUL under which SSBI would earn commissions on sales by SSBI
staff on CUL insurance products plus a two percent override
on "all new premium[s] written on CUL's Affordable
Choice insurance product." Gaylan had the override
commissions paid under that agreement deposited into her
personal bank account, having given CUL a direct deposit form
for that account to use to deposit the commissions.
Hendrickses filed a motion for no-evidence summary judgment
on Corley's theft claim under the TTLA, asserting that
there was no evidence that they acted without the consent of
SSBI regarding the Countrywide and CUL transactions or the
use of SSBI funds to pay for family vacations. They argued
that because Gaylan and Dan were officers and directors of
SSBI at the time of Gaylan's actions, her actions had the
effective consent of SSBI. In his summary judgment response,
• His own affidavit, in which he stated that he was a
member of SSBI's board at the time of the complained-of
transactions and that he had no ...