Full opinion text
OPINION EVELYN V. KEYES, Justice. This is an action brought by appellee, James A. Robinson, to enforce the judgment entered in his favor in Robinson v. Texas Workforce Commission and Tryco Enterprises, Inc., No. 2000-32376, in the 113th District Court of Harris County, Texas (“the FLSA suit”). Appellants, Tryco Enterprises, Inc. (“Tryco”), Sharon C. Dixon, James Dixon, Crown Staffing, Inc. (“Crown Staffing”), and Troy Keith Dixon, appeal the judgment of the trial court holding them jointly and severally liable for the amounts owed to Robinson by Tryco in the FLSA suit and permitting enforcement of that judgment against the assets of all appellants. In three issues, appellants argue that the trial court erred: (1) in piercing the corporate veil when it held them jointly and severally liable for using the corporate form to avoid paying the judgment in the FLSA suit; (2) in admitting the prior testimony of a witness given in the trial of the FLSA suit without a showing that the witness was unavailable to testify; and (3) in holding Sharon and James Dixon personally liable for the previous judgment against Tryco in the FLSA suit under Texas Tax Code section 171.255. We reverse the judgment of the trial court as to Troy Keith Dixon and render judgment that Robinson take nothing by his claims against him. We affirm the judgment as to Tryco, Sharon Dixon, James Dixon, and Crown Staffing. Background The Dixons owned and operated Tryco, a temporary staffing company, as their family business. Sharon and James Dixon served as vice president and president, respectively, of the company, and their son Troy worked there as an employee. From 1996 to 2000, Tryco employed Robinson as a van driver. In 2000, after leaving Tryco, Robinson sued Tryco in the FLSA suit. He alleged that Tryco and the Dixons had violated the Fair Labor Standards Act (“FLSA”) by failing to pay him substantial amounts of money for time worked in excess of forty hours per week and that the Dixons had feed him for refusing to return copies of travel logs that he had made to substantiate his claims. The regulatory scheme under which Robinson sued provides, in relevant part, that an employer who violates the provisions of the FLSA may be held accountable for such violations by an action for damages, attorney’s fees, and costs in any federal or state court. See 29 U.S.C.S. §§ 201-19 (Lexis-Nexis 2010). On August 13, 2003, after a trial on the merits of his FLSA claim, a jury returned a verdict in favor of Robinson. Nine days later, on August 22, 2003, Tryco forfeited its corporate privileges for failure to pay its franchise tax. On September 11, 2003, the trial court signed a judgment against Tryco on the verdict in the FLSA suit for statutory damages, including $58,349 for unpaid overtime wages, $58,349 for willful violation of the FLSA, $16,558.75 in attorney’s fees, $457 in court costs, and $603 in expenses, for a total of $134,316.75, plus prejudgment interest of $30,853.06. One year later, on September 10, 2004, Robinson sued appellants in this action to enforce the judgment in the FLSA suit, alleging that Tryco forfeited its corporate charter and fraudulently transferred its assets to avoid paying the judgment awarded to him. Robinson alleged that, prior to August 22, 2003 — the date on which Tryco forfeited its corporate charter — Sharon and James Dixon transferred the employees and assets of Tryco to Crown Staffing, which they had also formed and for which they also served as vice president and president, “effectively leaving Tryco Enterprises Inc. as an empty shell and defrauding its creditors.” He contended that the Dixons’ transfer of employees and assets from Tryco to Crown Staffing “was a fraud against the rights of James Robinson, Defendant Judgment Debtors creditor, because the transfer was made with the intent to hinder, delay, or defraud Plaintiff and similarly situated creditors.” On March 23, 2006, the instant action was called to trial. During the ensuing bench trial, Robinson began to present evidence regarding piercing of Tryco’s corporate veil. Appellants objected on grounds of lack of notice and surprise. The court ordered a sixty-day recess to allow Robinson to amend his pleadings to allege alter ego and piercing of the corporate veil. In his second amended pleading, filed on March 27, 2006, Robinson asserted an alter ego theory of liability for the judgment in the FLSA suit, alleging that Tryco and its officers, the Dixons, organized and operated Crown Staffing, through their son Troy, as a mere tool or business conduit and that “James Dixon was the true owner/manager of both Tryco Enterprises, Inc. and Crown Staffing, Inc.” Robinson argued, alternatively, that Sharon and James Dixon organized and operated both Tryco and Crown Staffing as part of a single business enterprise and that James Dixon was the true owner/manager of both Tryco and Crown Staffing. Robinson asked that the trial court find James and Sharon Dixon individually liable “because they were officers of Defendant Tryco Enterprises, Inc. who forfeited corporate privileges on August 22, 2003 prior to the Judgment of September 11, 2003.” He stated that “[fjorfeiture of corporate privileges results in liability for corporate officers” under Tax Code section 171.255(a). On September 27, 2006, trial of this action to enforce the judgment in the FLSA suit resumed. Prior to the taking of testimony, Robinson presented to the court the following exhibits: (1) the September 11, 2003 judgment in the FLSA suit and an abstract of that judgment dated January 4, 2004; (2) a Tryco business card for Birt Edison, which showed that Tryco was a “temporary help service” and that Edison was its Industrial Office Manager and which provided contact information for Tryco; (3) the tax forfeiture of Tryco’s corporate privileges dated August 22, 2003, certifying that Tryco’s managerial officers were James Dixon, YP, and Sharon C. Dixon, P/S/T; and (4) a determination of forfeiture of Tryco’s corporate charter by the office of the Texas Secretary of State, dated August 22, 2003, stating that Tryco had forfeited its corporate privileges and had not revived them within 120 days, that the Comptroller of Public Accounts had determined that Tryco “does not have assets from which a judgment for any tax, penalty, or court costs imposed under Chapter 171 of the [Texas Tax] Code may be satisfied,” and that “[i]t is therefore ordered that [the] charter or certificate of authority of the referenced entity be forfeited without judicial ascertainment and that the proper entry be made upon the permanent files and records of such entity to show such forfeiture as of the date hereof.” The judgment in the FLSA suit, the abstract of that judgment, and Edison’s Tryco business card were offered and admitted into evidence without objection. Before the close of evidence, the trial court took judicial notice of Tryco’s tax forfeiture and James and Sharon Dixon’s status as managerial officers of Tryco. As his first witness, Robinson called former Tryco and Crown Staffing manager Birthol Edison by reading into the record the testimony given by Edison in the FLSA suit. Appellants’ counsel objected to the admission of this testimony as hearsay. Robinson’s counsel replied that Edison was Tryco’s corporate representative, that the same counsel had represented each of the parties in the FLSA suit, and that Edison had been subject to cross-examination in that proceeding; therefore, his testimony was admissible as an admission of a party opponent. Robinson’s counsel also pointed out that Edison’s testimony in the FLSA suit had been given in open court, and appellants’ counsel agreed that Edison was Tryco’s corporate representative in that proceeding. The trial court conditionally admitted the testimony subject to appellants’ submitting briefing showing why Edison’s testimony from the FLSA suit was not admissible. The court permitted Robinson to read the testimony into the record over appellants’ general objection that it was hearsay, and it offered appellants’ counsel the opportunity to make specific objections during the reading. Counsel made no further objections to the testimony and permitted the testimony to be read. Appellants’ counsel did, however, object to Robinson’s subsequent testimony on the same matters on the ground that Edison’s testimony on that subject was already in evidence. Edison testified that, prior to December 2001, he worked as a manager at Tryco, where his immediate supervisor was Stacy Wilson, one of Tryco’s vice presidents. Wilson reported to Tryco’s president, James Dixon. At the time of his testimony in the FLSA suit, Edison worked for Crown Staffing as its industrial manager. His immediate supervisor was still Wilson, then one of Crown Staffing’s vice presidents. Wilson reported to Crown Staffing’s president, James Dixon, who had also been Tryco’s president. Edison also testified that Crown Staffing used the same telephone numbers and the same business location as Tryco and that, at Crown Staffing, he provided staffing for several of the same companies as he had at Tryco. At the close of Edison’s testimony, Robinson’s counsel pointed out that, at the time of the FLSA suit, Edison worked for Crown Staffing and that he testified as a representative of Crown Staffing as well as Try-co. Appellants’ counsel did not object to the characterization of Edison as a representative of either Tryco or Crown Staffing. Robinson also testified in the instant proceeding to enforce the judgment from the FLSA suit. He testified that, after his employment with Tryco ended, he called one of Tryco’s telephone numbers and spoke with one of his former Tryco coworkers. About six to seven weeks later, Robinson went to the location where Tryco had operated its business and saw that the name of the business at that location had been changed to Crown Staffing. At this location, he saw the same two vans he had driven for Tryco, and he also saw many of the same people who had worked for Tryco as well as a few new people. Robinson testified that, other than the new name of the company and a few new employees, nothing about the business location had changed. He also testified that Tryco was the Dixons’ family business, that James Dixon was Troy Dixon’s father, and that Troy had been an employee of Tryco and was currently Crown Staffing’s manager. At the close of the evidence, Robinson agreed with appellants’ counsel and the trial court that he had abandoned his fraudulent transfer claims, leaving only his claims that (1) Sharon and James Dixon were liable to him for Tryco’s judgment debt from the FLSA suit under an alter ego or single business enterprise theory because, as officers of Tryco, they had forfeited that corporation’s charter and transferred its employees to Crown Staffing, using the corporate fiction of Crown Staffing as a mere conduit of fraud to avoid Tryco’s liabilities, and (2) as officers of Tryco, Sharon and James Dixon were liable for the debts of Tryco, including the judgment in his favor in the FLSA suit, under Tax Code section 171.255, which provides for the personal liability of corporate officers for debts of the corporation incurred after forfeiture of its charter. On July 15, 2010, following a hearing, the trial court entered final judgment against appellants, holding them jointly and severally liable for the amounts awarded to Robinson against Tryco in the judgment rendered in the FLSA suit. Hearsay In their second issue, appellants contend that the trial court erred by admitting Edison’s recorded testimony from the FLSA suit. They contend that Edison’s prior testimony was inadmissible under Texas Rule of Evidence 801 because it was hearsay. See Tex.R. Evid. 801(d) (defining hearsay). They further argue that the testimony did not fall within an exception to the hearsay rule under Texas Rules of Evidence 804(a) and (b)(1) because Robinson failed to present any evidence that Edison was unavailable, that he had made a good-faith effort to locate Edison, or that appellants had an opportunity and similar motive to cross-examine Edison in the FLSA suit, as required for testimony from a former proceeding to qualify as an exception to the hearsay rule. See Tex.R. Evid. 804(a), (b)(1) (governing admissibility of former testimony from unavailable witness). Robinson responds that Edison’s testimony was not hearsay but instead constituted an admission by a party-opponent, which is excluded from the definition of hearsay and, therefore, need not satisfy the requirements for admission as an exception to the hearsay rule. Appellants’ hearsay objection was not preserved and, therefore, presents no ground for reversing the trial court’s admission of Edison’s testimony. Texas Rule of Appellate Procedure 38.1 requires that, as a prerequisite to presenting a complaint on appeal, the record must show that “the complaint was made to the trial court by a timely request, objection, or motion that ... stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint” and that “the trial court ... ruled on the ... objection ... either expressly or implicitly; or ... refused to rule ..., and the complaining party objected to the refusal.” Tex.R.App. P. 33.1. Likewise, Rule of Evidence 103 provides that “error may not be predicated upon a ruling which admits or excludes evidence unless ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” Tex.R. Evid. 103. Thus, to preserve error for appeal, the party must have made a timely, specific objection at the earliest possible opportunity. See Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 316 (Tex.App.-Houston [1st Dist.] 2004, pet. denied), (holding that where attorney did not seek “definitive ruling” on admissibility of evidence of conviction before voir dire, complaint that he was unable to question prospective jurors about bias was not preserved). “An objection is sufficient to preserve error for appeal if it allows the trial judge to make an informed ruling and the other party to remedy the defect, if he can.” Campbell v. State, 85 S.W.3d 176, 185 (Tex.2002) (quoting McDaniel v. Yarbrough, 898 S.W.2d 251, 252 (Tex. 1995)); see also McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989) (stating that specific objection enables trial court to understand precise grounds and make informed ruling and affords offering party opportunity to remedy defect, if possible); Lake v. Premier Transp., 246 S.W.3d 167, 174 (Tex.App.Tyler 2007, no pet.) (observing that specific and timely objection is necessary to preserve argument for appellate review and stating, “To be considered timely, an objection must be specific enough to enable the trial court to understand the precise nature of the error alleged and interposed at such a point in the proceedings so as to enable the trial court the opportunity to cure the error alleged, if any”). Here, appellants’ counsel made only a general hearsay objection to the admission of Edison’s testimony from the FLSA suit. He did not object with specificity, despite the trial court’s invitation to him to do so; nor did he obtain a definitive adverse ruling while the trial court was in a proper position to change its conditional ruling of admissibility and Robinson was in a position to offer other testimony or to subpoena Edison to testify. See Campbell, 85 S.W.3d at 185. Thus, appellants did not preserve their hearsay objection, and that objection presents no ground for disregarding Edison’s testimony. See TEX.R. EVID. 103; Tex.R.App. P. 33.1; Campbell, 85 S.W.3d at 185. Moreover, even if appellants had preserved this complaint for appellate review, they have failed to establish that Edison’s testimony in the FLSA suit constituted inadmissible hearsay in the instant enforcement action. In general, “ ‘[h]earsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). Hearsay is inadmissible as evidence unless provided by statute or rules, including the hearsay exception rules. Tex.R, Evid. 802. However, inadmissible hearsay admitted without objection is not denied probative value merely because it is hearsay. Id. Under Rules 804(a) and (b)(1), pri- or testimony is admissible as an exception to the hearsay rule if the proponent proves that the declarant was “unavailable” as defined in subsection 804(a); that a good-faith effort was made to locate and present the witness; and that the party against whom the testimony is offered, or one with a similar interest, had an opportunity to cross-examine the witness. See Tex.R. Evid. 804(a), (b)(1). However, if the de-clarant’s statement is not hearsay, no hearsay exception is needed to admit the statement, and Rule 804(b)(1) is irrelevant. Oyster Creek Fin. Corp., 176 S.W.3d at 316-17.' Under Rule 801(e)(2), the admission-by-party-opponent exclusion from the definition of hearsay, statements by a party opponent are not hearsay if they are offered against a party and are the party’s own statements in either an individual or a representative capacity. TEX.R. EVID. 801(e)(2); Oyster Creek Fin. Corp., 176 S.W.3d at 317; Worley v. Butler, 809 S.W.2d 242, 245 (Tex.App.-Corpus Christi 1990, no writ). Specifically, “[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.... ” Tex.R. Evid. 801(e)(2)(D). To show that a statement is an admission by a party-opponent under Rule 801(e)(2)(D), the existence of the agency or employment relationship must be established, but there is no requirement that the agency relationship be established with independent corroborating evidence. See, e.g., Tucker’s Beverages, Inc. v. Fopay, 145 S.W.3d 765, 768-69 (Tex.App.-Texarkana 2004, no pet.). Any statement, including former testimony, may be admitted under one of the admission-by-party-opponent exclusions, regardless of the witness’s availability. Oyster Creek Fin. Corp., 176 S.W.3d at 317 (holding that former testimony was not hearsay because it was admission by party opponent, and, therefore, Rules of Evidence did not require trial court to have found witness unavailable as preliminary condition to admitting his testimony). Moreover, if the record discloses any legitimate basis for the trial court’s evidentiary ruling, we uphold the ruling. Id. Here, Edison testified in the FLSA suit as a managing employee and corporate representative of both Crown Staffing and, prior to that, Tryco. • Edison stated that Crown Staffing continued the same business of providing temporary staff as Tryco at the same location using the same employees under the same managers. Edison’s Tryco business card further confirms that Edison was previously employed as an industrial manager at Tryco; and Robinson’s testimony confirms that Edison was employed in a managerial position at Crown Staffing at the same location at the time he gave his testimony in the FLSA suit. Robinson’s counsel also characterized Edison as a representative of both Tryco and Crown Staffing, and appellants’ counsel did not object to this characterization. We conclude that the excerpt of Edison’s testimony from the FLSA suit admitted in the instant enforcement action was thus “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” See Tex.R. Evid. 801(e)(2)(D). We hold that Edison’s recorded testimony from the FLSA suit, the judgment from which Robinson seeks to enforce in this action; was properly admitted under Rule 801(e)(2)(D) as the admission of a party-opponent, and, thus, appellants’ hearsay objection is irrelevant. See Oyster Creek Fin. Corp., 176 S.W.3d at 316-17. We overrule appellants’ second issue and turn to the merits of the appeal. Liability Under Former Article 2.21 of the Texas Business Corporations Act In their first issue, appellants argue that the trial court erred in piercing the corporate veil under a single business enterprise or alter ego theory and finding appellants jointly and severally liable for the judgment against Tryco in the FLSA suit. With respect to this issue, appellants contend (1) the Texas Supreme Court has abolished the single business enterprise theory as a means of piercing the corporate veil; (2) Robinson presented no evidence to support an alter ego theory for piercing the corporate veil; and (3) Robinson abandoned his fraudulent transfer theory and pled no other theory to support piercing the corporate veil. Robinson argues that appellants are jointly and severally liable to him under a single business enterprise theory or alter ego theory for the judgment in the FLSA suit because the Dixons used the corporate forms of Tryco and Crown Staffing as a mere conduit of fraud to avoid paying the judgment awarded to him against Tryco. He contends appellants’ actions — forfeiting Tryco’s corporate charter for non-payment of franchise taxes after the verdict was delivered in the FLSA suit and before the judgment was entered, transferring Try-co’s assets to Crown Staffing on that same day, and leaving Tryco without assets to pay the judgment — -justify piercing the corporate veil and holding appellants jointly and severally liable for the judgment in the FLSA suit under former article 2.21 of the Texas Business Corporations Act, now section 21.223 of the Texas Business Organizations Code, because appellants used the corporate fiction to perpetrate a fraud. Business Organizations Code section 21.223, like its predecessor, article 2.21, provides that an owner of a corporation, such as Tryco, may be held liable to the corporation or its obligees — such as judgment creditors — for any contractual obligation of the corporation or matter arising from a contractual obligation of the corporation — such as, here, the judgment arising from Tryeo’s breach of its statutory and contractual obligation to pay Robinson wages in compliance with the FLSA — if the owner “was the alter ego of the corporation” and “caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obli-gee primarily for the direct personal benefit of the ... owner” — here, the fraud of incorporating Crown Staffing, forfeiting Tryco’s corporate charter, and transferring Tryco’s assets to Crown Staffing to avoid execution of Robinson’s judgment against Tryco. TEX. BUS. ORGS.CODE § 21.223(a)(2), (b) (Vernon Supp.2010); see also SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 456 & n. 57 (Tex.2008) (quoting terms of former article 2.21 and discussing its legislative history). Section 21.223 provides, in relevant part: (a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate of such a holder, owner, or subscriber or of the corporation, may not be held liable to the corporation or its obligees with respect to (2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or similar theory; (b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee demonstrates that the holder, beneficial owner, subscriber, or affiliate 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, beneficial owner, subscriber, or affiliate. TEX. BUS. ORGS.CODE ANN. § 21.223(a)(2), (b). “Actual fraud” as defined by article 2.21 “involves dishonesty of purpose or intent to deceive.” Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd., 237 S.W.3d 379, 387 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (holding, in context of article 2.21, that owner of corporation that solicited corporate sponsorship for clients was not its owner’s alter ego absent evidence that owner enjoyed direct personal benefits resulting from fraud). “The corporate form normally insulates shareholders, officers, and directors from liability for corporate obligations .... ” Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex.1986); see SSP Partners, 275 S.W.3d at 451 n. 29. However, the corporate veil may be pierced on an alter ego theory “where a corporation is organized and operated as a mere tool or business conduit of another....” Castleberry, 721 S.W.2d at 272. “Alter ego applies when there is such unity between corporation and individual that the separateness of the corporation has ceased and holding only the corporation liable would result in injustice.” Id. “It is shown from the total dealings of the corporation and the individual, including the degree to which corporate formalities have been followed and corporate and individual property have been kept separately, the amount of financial interest, ownership and control the individual maintains over the corporation, and whether the corporation has been used for personal purposes.” Id. Parties are not, however, jointly liable for a corporation’s obligations “merely because they were part of a single business enterprise,” i.e., “merely because of centralized control, mutual purposes, and shared finances.” SSP Partners, 275 S.W.3d. at 452, 455. Rather, “[disregarding the corporate structure involves two considerations”: (1) “the relationship between [the] two entities” and (2) “whether the entities’ use of limited liability was illegitimate.” Id. at 455. To pierce the corporate veil and impose liability under an alter ego theory of liability pursuant to SSP Partners, a plaintiff must show: (1) that the persons or entities on whom he seeks to impose liability are alter egos of the debtor, and (2) that the corporate fiction was used for an illegitimate purpose, in satisfaction of the requirements of article 2.21 — now Business Organizations Code section 21.223(a) and (b). See id. at 456 & n. 57. We address both prongs of the test with respect to this case. A. Appellants as Alter Egos of Each Other To satisfy the first consideration in piercing the corporate veil— whether the persons or entities sought to be charged with liability are alter egos of the primary debtor — the relationship between corporate entities can be assessed using factors such as: • whether the entities shared a common business name, common offices, common employees, or centralized accounting; • whether one entity paid the wages of the other entity’s employees; • whether one entity’s employees rendered services on behalf of the other entity; • whether one entity made undocumented transfers of funds to the other entity; and • whether the allocation of profits and losses between the entities is unclear. Id. at 450-51. Here, there is uncontroverted evidence, from Edison, Robinson, and the public records of which the trial court took judicial notice, that James and Sharon Dixon were owners and officers of Tryco. Rather than paying Tryco’s corporate franchise tax, which was due and unpaid at the time the verdict was reached and the judgment entered in the FLSA suit, the Dixons forfeited Tryco’s corporate charter. The same day they forfeited the corporate charter— after the verdict was returned, but before the judgment was entered on it — James and Sharon Dixon transferred Tryco’s assets to Crown Staffing, which they had previously incorporated. Crown Staffing had the same officers as Tryco, including James Dixon, its president; it took over the offices of Tryco at the same location; it used the same telephone numbers as Try-co; it shared common employees with Try-co; it performed the same temporary staffing services for essentially the same companies; and it was. managed by the same managers. Furthermore, the evidence showed that James and Sharon Dixon exercised absolute ownership and control over both corporations, maintained a very significant personal financial interest in both corporations, and used them for personal purposes. Specifically, they neglected the corporate formality of paying Tryco’s franchise tax and transferred all of Tryco’s assets to Crown Staffing for the purpose of avoiding payment of the judgment in the FLSA suit. The foregoing un-refuted evidence establishes that Tryco and Crown Staffing were both alter egos of Sharon and James Dixon and part of a single business enterprise for purposes of piercing the corporate veil under former Business Corporations Act article 2.21 and under the current provision, Business Organizations Code section 21.223. We hold, therefore, that Robinson satisfied the first prong of the test for finding these appellants jointly and severally liable for the judgment in the FLSA suit. B. Use of the Corporate Fiction to Perpetrate a Fraud The foregoing factors “are almost entirely irrelevant” to the second consideration in determining personal liability under section 21.223 — whether the use of limited liability was illegitimate. Id. at 455. That determination is made “based on a careful evaluation of the policies supporting the principle of limited liability.” Id. Therefore, we must look to SSP Partners and Castleberry to see whether the corporate fiction was used as a means of “perpetrating] an actual fraud on the obligee [Robinson] primarily for the direct personal benefit of the ... owner[s]” of Tryco and Crown Staffing, the Dixons. TEX. BUS. ORGS.CODE ANN. § 21.223(b). The supreme court observed in SSP Partners that courts “disregard the corporate fiction, even though corporate formalities have been observed and corporate and individual property have been kept separately, when the corporate form has been used as part of a basically unfair device to achieve an inequitable result.” 275 S.W.3d at 454. Specifically, courts disregard the corporate fiction (1) when the fiction is used as a means of perpetrating fraud; (2) where a corporation is organized and operated as a mere tool or business conduit of another corporation; (3) where the corporate fiction is resorted to as a means of evading an existing legal obligation; (4) where the corporate fiction is employed to achieve or perpetrate monopoly; (5) where the corporate fiction is used to circumvent a statute; and (6) where the corporate fiction is relied upon as a protection of crime or to justify wrong. Id. (quoting Castleberry, 721 S.W.2d at 271-72). “Because disregarding the corporate fiction is an equitable doctrine, Texas takes a flexible fact-specific approach focusing on equity” in determining whether the corporate veil should be pierced. Castleberry, 721 S.W.2d at 273; see also Wilson v. Davis, 305 S.W.3d 57, 69 (Tex. App.-Houston [1st Dist.] 2009, no pet.). We conclude, on the basis of the evidence in this case, that five of the criteria for piercing the corporate form and finding appellants jointly and severally liable for the judgment against Tryco in the FLSA suit are satisfied: (1) the corporate fiction was used with respect to both Tryco and Crown Staffing as a means of defrauding Robinson by depriving Tryco of assets to pay the judgment awarded against it in the FLSA suit; (2) Crown Staffing was organized and operated as a mere tool or business conduit of Tryco’s and James and Sharon Dixon’s temporary staffing business; (3) the Dixons forfeited Tryco’s charter, organized Crown Staffing, and transferred Tryco’s assets to it as a means of evading Tryco’s legal obligation to pay the judgment in the FLSA suit; (4) the corporate fiction was used to circumvent the consequences to James and Sharon Dixon of Tryco’s violation of a federal statute, the FLSA, by transferring the assets of Tryco, which were subject to Robinson’s judgment lien, to Crown Staffing, leaving Tryco without assets to pay the judgment in the FLSA suit; and (5) the corporate fiction was thereby relied upon by appellants to justify a wrong. Thus, the evidence supports an affirmative finding that the corporate fiction was used illegitimately by James and Sharon Dixon, Tryco, and Crown Staffing in violation of the second prong of the test for piercing the corporate veil and imposing liability under article 2.21 or Business Organizations Code section 21.223. We hold that Robinson has produced evidence sufficient to establish that Crown Staffing was used as the mere tool or business conduit of Tryco and of James and Sharon Dixon for the purpose of perpetrating a fraud by avoiding payment of the judgment entered against Tryco in the FLSA suit. Thus, Robinson has borne his burden of producing proof sufficient to justify piercing the corporate veil under article 2.21 or Business Organizations Code section 21.223 and holding Tryco, James and Sharon Dixon, and Crown Staffing personally liable to him as alter egos of each other for payment of the judgment. We also hold, however, that Robinson has failed to show by more than a scintilla of evidence that Troy Dixon owned or controlled either Tryco or Crown Staffing or used the corporate fiction illegitimately; therefore, Robinson has not proved Troy Dixon’s personal liability to him under section 21.223. We overrule appellants’ first issue as to James and Sharon Dixon, Tryco, and Crown Staffing, and we sustain it as to Troy Dixon. Conclusion We reverse the judgment of the trial court as to appellant Troy Keith Dixon and render judgment that Robinson take nothing by his claims against him. We affirm the judgment as to appellants Tryco Enterprises, Inc., Sharon C. Dixon, James Dixon, and Crown Staffing, Inc. Justice KEYES, concurring. Justice MASSENGALE, concurring in part and dissenting in part. . See Tex.R. Evid. 201 (providing for judicial notice of adjudicative facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”); Tex.R. Evid. 803(8) (public records as exception to hearsay rule). . Tex. Tax Code Ann. § 171.255 (Vernon 2008). . Article 2.21 expired effective January 1, 2010. Article 2.21(a) has been codified in substantially the same form in Texas Business Organizations Code section 21.223. See SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 456 & n. 57 (Tex.2008) (discussing former article 2.21 and stating, "Sections A and B of this article, after a legislative reorganization of the statutes governing business entities effective January 1, 2006, were recodified in substantially similar form in Tex. Bus. Orgs.Code § 2.223, and §§ 21.224-.225, respectively”) (citing Act of May 29, 2003, 78th Leg., R.S., ch. 182, §§ 1-2, 2003 Tex. Gen. Laws 267, 427, 595). . In Castleberry v. Branscum, the supreme court had held that a showing of constructive fraud was enough to demonstrate an illegitimate use of the limited liability afforded to corporations under a single business enterprise theory of liability. 721 S.W.2d 270, 271 (Tex.1986); see also SSP Partners, 275 S.W.3d at 455. In SSP Partners, the court narrowed its prior holding, recognizing that Castleberry had been superseded by article 2.21, which “takes a stricter approach to disregarding the corporate structure.” 275 S.W.3d at 455. It held that "the single business enterprise liability theory is fundamentally inconsistent with the approach taken by the Legislature in article 2.21.” Id. at 456. In sum, the court held that the mere fact that two corporations share "centralized control, mutual purposes, and shared finances” is not enough to pierce the corporate veil and hold the officers liable. Id. at 451, 455. Rather, a party must also show that the corporate form was used to perpetrate a fraud under article 2.21,. now Business Organizations Code section 21.223. Id', at 455-56. . In their third issue, appellants argue that Robinson’s suit to enforce the judgment in the FLSA suit is predicated on the claim that James and Sharon Dixon perpetrated a fraud that violated Tax Code section 171.255 by forfeiting Tryco’s charter before the judgment was entered. Appellants argue that the Dix-ons’ actions were not illegal or wrongful under section 171.255 and that, therefore, they cannot be personally liable to Robinson under either that section of the Tax Code or Business Organizations Code section 21.223. Because our holding with respect to appellants' first issue is dispositive, we find it unnecessary to reach appellants’ third issue.
EVELYN V. KEYES, Justice, concurring. Because the majority opinion’s holding on appellants’ first issue is dispositive of this appeal, it is unnecessary to address the Dixons’ third issue concerning their personal liability for the judgment in the FLSA suit under Tax Code section 171.255. However, because the dissent specifically addresses this issue and partially accepts the Dixons’ arguments, I take the unusual, but not unprecedented, step of authoring a separate concurring opinion to address the dissent’s arguments on this issue. See, e.g., Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571, 584 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (Seymore, J., concurring) (“Like other jurists before me, I take ‘the unusual, but not unprecedented, step of concurring to my own opinion in order to add some further observations.’ ”) (quoting Thurman v. State, 861 S.W.2d 96, 101 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (Cohen, J., concurring)); Alvarado v. Wingfoot Enters., 53 S.W.3d 720, 727 (Tex.App.-Houston [1st Dist.] 2001) (Taft, J., concurring), rev’d, 111 S.W.3d 134 (Tex. 2003). Were I to reach it, I would overrule the Dixons’ third issue in its entirety. In their third issue, James and Sharon Dixon argue that they are not personally liable under Tax Code section 171.255 for the judgment entered against Tryco in the FLSA suit. They argue, “Texas courts have consistently held that individual liability on the officers of corporations after the forfeiture of their corporate privileges does not apply to debts brought into existence, caused by, resulting from, or arising out of actions occurring before forfeiture.” They contend that, under the “relation-back” doctrine, Tryco’s debt to Robinson must be counted as having “occurred” or been “created” when the actions on which Robinson’s FLSA suit was based occurred — namely, each time Tryco wrongfully failed to pay Robinson overtime in violation of the FLSA. They argue that these actions were actions that occurred in the ordinary course of Tryco’s business, long before the forfeiture of its corporate charter; that the “debt” on which damages were entered against Tryco was, therefore, a pre-existing debt of the corporation incurred before forfeiture; that the judgment in the FLSA suit entered after the forfeiture merely memorialized this pre-existing corporate debt; that, under Texas law construing section 171.255, the date of the debt for which Robinson was awarded damages “relates back” to each of the dates on which Tryco incurred expenses for Robinson’s unpaid overtime; and that, therefore, they cannot be held personally liable for the judgment entered on those debts under Tax Code section 171.255, which applies only to debts of the corporation incurred after forfeiture of the corporate charter. The dissent accepts this argument and would hold the Dixons personally liable only for that part of the judgment that does not reflect Robinson’s recovery for unpaid overtime, namely, the attorney’s fees, court costs, expenses, interest, and statutory liquidated damages for “willful violation of the Fair Labor Standards Act.” See Dissent at 583-34. Robinson, on the other hand, argues that the Dixons misread section 171.255 and the case law applying it. He argues that the debt he seeks to collect is not a series of debts for unpaid wages incurred in the ordinary course of Tryco’s business over a period of time, but a judgment debt, based on a jury verdict, awarding him statutory damages for ongoing violations of the FLSA by Tryco’s corporate officers entered after forfeiture of Tryco’s corporate charter and the transfer of its assets. Under section 171.255, the officers of a corporation may be held liable for their own wrongful acts that resulted in a debt of the corporation incurred after forfeiture of its corporate charter. Robinson points out that Tryco forfeited its corporate charter by failing to pay franchise taxes on August 22, 2003, immediately after the verdict was reached in the FLSA suit on August 13, 2003, and shortly before the judgment was entered on September 11, 2003. Robinson contends that James and Sharon Dixon fraudulently forfeited Tryco’s charter and transferred Try-co’s assets to Crown Staffing to avoid paying the judgment in the FLSA suit. He argues that, under established law, the judgment debt in the FLSA suit falls squarely within the definition of a “debt” of a defunct corporation for which the corporation’s officers and directors may be held personally liable under Tax Code section 171.255. I agree with Robinson. Tax Code section 171.255 provides: (a) If the corporate privileges of a corporation are forfeited for the failure to ... pay a tax or penalty, each director or officer of the corporation is liable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due and before the corporate privileges are revived. The liability includes liability for any tax or penalty imposed by this chapter on the corporation that becomes due and payable after the date of the forfeiture. (b) The liability of a director or officer is in the same manner and • to the same extent as if the director or officer were a partner and the corporation were a partnership. (c) A director or officer is not liable for a debt of the corporation if the director or officer shows that the debt was created or incurred: (1) over the director’s objection; or (2) without the director’s knowledge and that the exercise of reasonable diligence to become acquainted with the affairs of the corporation would not have revealed the intention to create the debt. Tex. Tax Code Ann. § 171.255 (Vernon 2008). Thus, corporate officers and directors may not be held personally liable under section 171.255 for lawfully contracted debts of the corporation that occurred pri- or to forfeiture of the corporate charter or incurred after forfeiture without their knowledge and approval. But they may be held personally liable for “debt” created or incurred after forfeiture of the corporate charter. A “debt” as used in section 171.255(a) “is defined as ‘any legally enforceable obligation measured in a certain amount of money which must be performed or paid within an ascertainable period of time or on demand.’ ” Taylor v. First Cmty. Credit Union, 816 S.W.3d 863, 867 (Tex.App.Houston [14th Dist.] 2010, no pet.) (quoting Act of May 30, 1987, 70th Leg., R.S., ch. 324, § 1, 1987 Tex. Gen. Laws 1734, 1735 (defining “debt” as used in chapter 171, as formerly codified in Tax Code section 171.109(a)(3)), repealed by Act of May 2, 2006, 79th Leg., 3rd C.S., ch. 1, § 5, 2006 Tex. Gen. Laws 1, 23); Cain v. State, 882 S.W.2d 515, 516 n. 1 (Tex.App.-Austin 1994, no writ). I agree with Robinson that the judgment entered against Tryco in the FLSA suit for statutorily mandated damages, attorney’s fees, costs, and interest was a “legally enforceable obligation measured in a certain amount of money” payable by Tryco to Robinson within a specified time period or on demand. I further agree that a legally-enforceable obligation for a sum certain was incurred by Tryco only when the trial court entered judgment in the form of statutory damages on the jury verdict in the FLSA suit after Tryco had failed to pay franchise taxes and had forfeited its corporate charter. See Taylor, 316 S.W.3d at 867 (quoting former Tax Code section 171.109(a)(3)). Thus, the debt at issue here was not, as the Dixons argue, created by Tryco’s failures to pay Robinson’s overtime wages. There was no employment contract between Tryco and Robinson that provided for the payment of the sums of money the jury found were wrongfully withheld from Robinson under the FLSA. Rather, the jury found that Tryco’s corporate officers intentionally withheld from Robinson statutorily mandated overtime wages. To avoid paying any judgment entered on the jury verdict, the Dixons immediately forfeited Tryco’s corporate charter and transferred Tryco’s assets to Crown Staffing. The trial court then entered judgment on the jury verdict against Tryco in the FLSA suit in the amount of “$58,349,000 for unpaid wages [and] $58,349.00 for willful violation of the Fair Labor Standards Act” — precisely in accordance with the FLSA, which permits recovery by employees whose employers have violated the Act “in the amount of ... their unpaid overtime compensation ... and in an additional equal amount as liquidated damages.” 29 U.S.C.S. § 216(b) (LexisNexis 2010). The court also awarded Robinson attorney’s fees, court costs, expenses, and interest, as permitted by the same statute. Thus, a legally enforceable obligation measurable in a sum certain was created when the trial court entered judgment awarding Robinson statutory damages. The dissent draws a distinction unique to section 171.255 jurisprudence between unpaid compensation awarded as liquidated damages under section 216 of the FLSA and the doubling of that amount, also awarded as liquidated damages under that same section of the FLSA, for the employer’s willful violation of the FLSA. It construes the damages awarded by the jury for wrongfully withheld statutorily mandated compensation as a series of lawful debts of the corporation incurred in the ordinary course of Tryco’s operations and merely renewed in the post-forfeiture judgment. It then construes the doubling of the damages award by the jury for the willfulness of the violations, in accordance with the terms of the statute, as a new debt incurred after forfeiture. I disagree with the dissent’s reasoning and its conclusion. “Liquidated damages” awarded for violations of the FLSA are not merely the memorialization of accumulated pre-exist-ing debts. The FLSA is set out in Title 29 of the United States Code. Sections 206 and 207 of the Act regulate the payment of wages and overtime compensation by employers. Section 216(b) provides for damages for violations of the Act. It states, in relevant part: “Any employer who violates the provisions of [section 206] or [section 207] of this Act shall be liable to the employee or employees affected in the amount of ... their unpaid overtime compensation ... and in an additional equal amount as liquidated damages.... ” 29 U.S.C.A. § 216 (LexisNexis 2010). The trial court’s duty to award liquidated damages in an amount equal to the unpaid compensation due under sections 206 and 207 of the FLSA is a ministerial duty under the terms of section 216. Míreles v. Frio Foods, Inc., 899 F.2d 1407, 1414 (5th Cir.1990). This duty is made discretionary, however, by section 260 of the Act, which provides: In any action ... to recover ... unpaid overtime compensation, or liquidated damages, under the [FLSA], if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA] ... the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section [216]. 29 U.S.C.S. § 260 (LexisNexis 2010) (emphasis added); Míreles, 899 F.2d at 1414-15. To be relieved of liability for liquidated damages under section 216, an employer found liable under section 206 or 207 of the FLSA has the “substantial burden” of proving to the satisfaction of the trial court both that its acts giving rise to the employees’ suit were in good faith and that it had reasonable grounds for believing it was not violating the FLSA. Míreles, 899 F.2d at 1415. The debt owed in this case for Tryco’s FLSA violations was determined, liquidated, and made enforceable by the judgment entered by the trial court in accordance with the mandate of the FLSA. This required that the trial court determine the amount of overtime compensation due Robinson under the statute and that it double that amount to determine the liquidated damages due Robinson, unless Try-co’s officers carried their “heavy burden” of showing to the satisfaction of the court that they acted in good faith and had reasonable grounds for believing that their acts in withholding overtime compensation from Robinson (and also for retaliatorily firing him) did not violate the FLSA. See 29 U.S.C.S. §§ 216, 260. Here, the trial court found both that Robinson was entitled to wrongfully 'withheld unpaid overtime compensation and that Tryco was not entitled to the good faith defense; thus, it entered judgment for the full amount of statutory damages made mandatory by section 216 of the FLSA. The Texas Supreme Court first defined a corporate debt for which corporate officers may be held personally liable after forfeiture of the corporate charter with respect to the predecessor of section 171.255 in the seminal case of Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379,198 S.W.2d 79 (1946). That statute, like the present statute, imposed personal liability on a director or officer of a corporation whose right to do business had been forfeited for “any and all debts of such corporation which may be created or incurred, with his knowledge, approval and consent ” after the forfeiture and before the revival of the corporation’s right to do business. Id. at 80 (construing predecessor of section 171.255, article 1821 of Revised Civil Statutes) (emphasis added). In Schwab, the supreme court refused to hold the officers of a defunct corporation personally liable on a note evidencing obligations of the corporation when the note at issue merely renewed a debt after forfeiture of the corporate charter. Id. at 81-82. The court held that the word “created” means “[t]o bring into existence,” while the word “incurred” means “brought on, occasioned, or caused.” Id. at 81. Under these definitions, it held, “the liability imposed under the statute is only for debts contracted after the forfeiture of the right to do business, and has no application to the renewal of obligations arising prior thereto.” Id. (emphasis added). Rather, “¡t]he statute 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.” Id. (emphasis added). Subsequently, the supreme court, further construing that same predecessor of section 171.255, held that the officers of a defunct corporation were personally liable for debts of the corporation incurred for purchases of merchandise to which the officers consented and which they approved after the corporation had forfeited its right to do business. First Nat’l Bank of Boston v. Silberstein, 398 S.W.2d 914, 915-16 (Tex.1966) (holding officers liable for debt “which results from and is attributable to the acts of Respondents”). Here, there was no “renewal” of Tryco’s pre-existing debts to Robinson after the forfeiture of Tryco’s corporate charter. Rather, there was a judgment for a sum certain for violations of the FLSA that resulted from and was attributable to the wrongful acts of the Dixons, as corporate officers of Tryco. This case thus falls squarely within the scope of section 171.255 as construed by the Texas Supreme Court in Schwab and Silberstein. An examination of Schwab and Silber-stein and of the case law following these two cases in construing section 171.255 and its predecessor statute makes it apparent that the Dixons and the dissent have conflated the two different types of corporate debt distinguished in these cases: (1) the lawful contractual debts of a corporation, which may be renewed or reduced to judgment after forfeiture of the corporation’s charter without changing the underlying nature of the debt as a debt of the corporation incurred pre-forfeiture in the regular course of its business, and (2) both (a) new debts incurred by the corporation and approved after forfeiture by officers with knowledge of the forfeiture and (b) judgment debts or penalties incurred by a corporation for the wrongful acts of its officers or directors that occurred prior to forfeiture of the corporate charter but were not reduced to “a legally enforceable obligation measured in a certain amount of money” in the form of a legal judgment or penalty until after forfeiture. See Silber-stein, 398 S.W.2d at 916 (distinguishing debts of defunct corporation “incurred in the regular course of the business of the corporation,” for which officers and directors cannot be held personally liable, and debts incurred after corporation “no longer has the right to do business,” for which “the personal liability of officers and directors ... is limited to those debts of which they have knowledge and, with the opportunity afforded thereby, which they have consented to and approved”); Schwab, 198 S.W.2d at 81-82 (discussing nature of corporate debt); see also Beesley v. Hydrocarbon Separation, Inc., 858 S.W.3d 415, 422-23 & n. 7 (Tex.App.-Dallas 2012, no pet.) (distinguishing between types of debts courts have examined in this context). Corporate officers and directors may be held personally liable for liquidated damages awarded, or penalties assessed, in a post-forfeiture judgment as a result of their own wrongful acts that occurred either before or after forfeiture to the same extent a partner in a partnership may be held liable for his own acts. See Tex. Tax Code Ann. § 171.255(b) (“The liability of a director or officer is in the same manner and to the same extent as if the director or officer were a partner and the corporation were a partnership”); see also Silberstein, 398 S.W.2d at 915 (quoting predecessor statute to section 171.255). Here, the Dixons’ actions in violating the FLSA prior to forfeiture of Tryco’s corporate charter and then in terminating Tryco’s charter and transferring its assets to Crown Staffing to avoid paying the monetary judgment awarded to Robinson as a result of those statutory violations are all acts for which a partner would be liable under the Texas Partnership Act. See, e.g., Moore v. Sussdorf, 421 S.W.2d 460, 465 (Tex.Civ.App.-Tyler 1967, writ ref'd n.r.e.) (recognizing liability of partner in joint venture to partnership for termination of partnership for fraudulent purpose). They are thus actions for which James and Sharon Dixon may be held personally liable under Tax Code section 171.255. See Tex. Tax Code Ann. § 171.255(b). The Dixons also argue, and the dissent agrees, that each wrongful failure of Tryco to pay Robinson’s overtime wages “relate[s] back” to the date of the separate and specific statutory violation, all of which occurred before forfeiture. The Dixons contend that because the “individual liability of the officers of corporations after the forfeiture of their corporate privileges does not apply to debts brought into existence, caused by, resulting from, or arising out of actions occurring before forfeiture,” they are not jointly and severally liable for the judgment against Tryco. The Dixons contend that Rogers v. Adler, 696 S.W.2d 674 (Tex.App.-Dallas 1985, writ ref'd n.r.e.), and other section 171.255 cases support their argument. This case is, however, sharply different from those section 171.255 cases to which the Texas courts have held the “relation-back” doctrine applies. It belongs, instead, to the well-established line of cases in which Texas courts have held that the relation-back doctrine does not apply. “Broadly speaking, the relation-back doctrine may be applied to give effect to the parties’ lawful intentions, preserve rights that would otherwise be lost, or afford a remedy when none would otherwise exist.” Cain, 882 S.W.2d at 518 (citing Brandon v. Claxton, 30 S.W.2d 679, 680-81 (Tex.Civ.App.-Dallas 1930), aff'd, 121 Tex. 184, 47 S.W.2d 263 (1932)) (emphasis added). Here, there were no lawful intentions for the relation-back doctrine to preserve. And, if the Dixons and the dissent were correct, Robinson would lose the right to recover the damages he was awarded due to the Dixons’ wrongful acts, since Tryco was denuded of its assets by them, and he would have no remedy for the FLSA violations committed by the Dixons. This ease is thus totally unlike those cases cited by the Dixons, and by the dissent, to support their claims that Try-co’s judgment debt was really just the renewal and memorialization of previously-incurred lawful obligations of the corporation, for which its corporate offers may not be held liable. By contrast, in Rogers v. Adler, the Dallas Court of Appeals applied the “relation-back” doctrine and held that two officer-directors of a corporation were not personally liable for a judgment rendered against the corporation after forfeiture of its corporate charter for a debt of the corporation incurred on a purchase contract where all the operative facts occurred at least four years before the forfeiture and were “essentially claims based on contract despite the allegations of fraud and breach of fiduciary duty.” 696 S.W.2d at 675-77. The pleadings and evidence in that case made it clear to the court that the plaintiffs’ claims, which were reduced to judgment after forfeiture, were actually claims for the payment of contractual obligations of the corporation that were incurred in the regular course of business after the corporate charter was forfeited and were not a judgment based on the fraudulent actions or breach of fiduciary duty of the officers of the corporation, as required for personal liability under section 171.255. Id. at 677; see also Tex. Tax Code Ann. § 171.255(b) (providing officers and directors liable to same extent as if they were partners and corporation was partnership); Silberstein, 398 S.W.2d at 916 (“[T]he reasonable construction of the statute to the facts at hand is that personal liability is determined by the acts of Respondents in consenting to and approving the debts of the corporation where knowledge of their creation is shown to have come to them in the regular course of the business of the corporation.”); Schwab, 198 S.W.2d at 82 (“[T]he new agreement made on behalf of the corporation did not create or incur a new debt within the meaning of the statute. It merely created new evidence of the existing indebtedness.”). The debt in Rogers was thus merely new evidence of an existing indebtedness. The other cases upon which the Dixons and the dissent rely as authority for applying the relation-back doctrine to this case are all inapplicable for the same reason Rogers is inapplicable: all of the cases are cases in which the plaintiff sought to collect from corporate officers or directors after forfeiture of the corporate charter debts incurred in the regular course of the business of a corporation prior to forfeiture; all are cases in which the court’s decision gave effect to the lawful intentions of the parties to a preexisting contract, preserved rights that would otherwise be lost, or afforded a remedy to a creditor of the corporation when none would otherwise exist. See Cain, 882 S.W.2d at 518 (emphasis added). None are