United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION AND ORDER
Scott Coogler United States District Judge.
Beverly Spencer (“Spencer”), C.B.S. Properties,
LLC (“CBS”), and B&V Wrecker Service, Inc.
“Plaintiffs”) bring this action against
Defendants Jonathan Benison (“Benison”), in his
individual capacity and in his official capacity as Sheriff
of Greene County; D.R.E.A.M., Inc. (“DREAM”);
Belle Mere Properties, LLC (“Belle Mere”);
Accuity Capital Group, LLC (“Accuity”); Bernard
Gomez (“Gomez”); and Che' D. Williamson
“Defendants”), alleging claims under 42 U.S.C.
§ 1983 and state law. All claims relate to a property
dispute between Plaintiffs and the non-governmental
Defendants. Before this Court is Williamson's motion to
dismiss. (Doc. 29.) For the reasons explained more
fully herein, the motion is due to be denied.
factual circumstances of this case, as alleged in the
complaint, are described in detail in this Court's
previous Memorandum of Opinion and Order. (Doc. 33.) Only the
allegations specifically relating to Williamson are repeated
Belle Mere's manager, negotiated on behalf of Belle Mere
to purchase Plaintiffs' land in Greene County, Alabama,
on April 1, 2011. Belle Mere then leased this property to
Accuity, another entity managed by Williamson, and Accuity
permitted DREAM to operate a bingo gambling facility on the
property. Over the next several years, Plaintiffs were
involved in a series of disputes with Belle Mere, Accuity,
and DREAM related to the property line between the land
Plaintiffs continued to own and the land sold to Belle Mere
in April 2011. The boundary disputes were the subject of
several lawsuits filed by both Plaintiffs and Defendants. The
bankruptcy court adjudicating Belle Mere's Chapter 11
bankruptcy petition made a final determination of the
property line in an order dated May 20, 2014. Plaintiffs
allege that despite this, Williamson, Gomez, Belle Mere,
Accuity, and DREAM crossed the boundary line to construct a
road and trespassed on Plaintiffs' land.
Standard of Review
motion for judgment on the pleadings under Fed.R.Civ.P. 12(c)
is due to be granted if “there are no material facts in
dispute and the moving party is entitled to judgment as a
matter of law.” Perez, 774 F.3d at 1335. If a
material dispute of fact is found to exist, “judgment
on the pleadings must be denied.” Id.
as here, the defendant argues that the plaintiff's
complaint fails to state a claim for relief on its face,
review of the complaint is guided by the standard applicable
to motions to dismiss under Fed.R.Civ.P. 12(b)(6). See
Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg
Corp., 305 F.3d 1293, 1295 n.8 (11th Cir. 2002). Thus,
the complaint “must plead enough facts to state a claim
to relief that is plausible on its face.” Ray v.
Spirit Airlines, Inc., 836 F.3d 1340, 1347-48 (11th Cir.
2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)) (internal quotation marks omitted). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
Personal Liability for Acts of Belle Mere
argues that Plaintiffs' claims against her are due to be
dismissed because Texas law shields her from personal liability
for torts committed by Belle Mere. Under Texas law, a member
or manager of a limited liability company (“LLC”)
“is not liable for a debt, obligation, or
liability” of that company “[e]xcept as and to
the extent the company agreement specifically provides
otherwise.” Tex. Bus. Orgs. Code Ann. § 101.114.
This statutory protection is not absolute, however. See
Chico Auto Parts & Serv., Inc. v. Crockett, 512
S.W.3d 560, 571 (Tex. App. 2017). The plaintiff may
“pierce the corporate veil” of an LLC to hold a
member or manager personally liable by showing that the LLC
“was used for the purpose of perpetrating, and did
perpetrate, an actual fraud for the member or manager's
direct personal benefit.” Metroplex Mailing Servs.,
LLC v. RR Donnelley & Sons Co., 410 S.W.3d 889, 896
(Tex. App. 2013). To the extent that Plaintiffs seek to hold
Williamson personally liable for Belle Mere's actions
solely because she is a member or manager of Belle Mere,
Texas law does not provide for such liability. See
Tex. Bus. Orgs. Code Ann. § 101.114. Further, Plaintiffs
do not allege that Belle Mere was Williamson's alter ego
or that Belle Mere was used to perpetrate a fraud on
Plaintiffs for Williamson's benefit and thus do not
proceed on a “piercing the corporate veil” theory
alternatively contend that because Belle Mere's status as
a business entity was “forfeited” prior to the
events alleged in the complaint, Williamson is personally
liable for any debts incurred by Belle Mere after the
forfeiture. Texas law provides that an LLC's corporate
privileges may be forfeited if the LLC does not pay the
state's franchise tax. Tex. Tax Code Ann. §
171.251(2). In the event that such privileges are forfeited,
“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 [franchise tax] is
due and before the corporate privileges are revived.”
Tex. Tax Code Ann. § 171.255; see Hovel v.
Batzri, 490 S.W.3d 132, 136 (Tex. App. 2016) (stating
that § 171.255 applies to LLCs). However, this statute
applies only to acts undertaken within the state of Texas
because the debt must be “created or incurred in
this state” after forfeiture. Tex. Tax Code Ann.
§ 171.255 (emphasis added); see also Tri-State Bldg.
Specialties, Inc. v. NCI Bldg. Sys., L.P., 184 S.W.3d
242, 251 (Tex. App. 2005) (stating that § 171.255
“is a revenue measure, the purpose of which is to
enforce collection of Texas franchise taxes, ” which
“are taxes on the privilege of transacting business
within Texas” (emphasis in original)). The
events giving rise to Plaintiffs' causes of action are
all alleged to have occurred in Greene County, Alabama;
therefore, § 171.255 does not provide a basis for
Williamson's personal liability to Plaintiffs.
See Ala. Code § 10A-1-7.21(d) (“The
liability of an owner or owners of a foreign entity is
governed by the laws of the state or other jurisdictions
where it is organized, and any limitations on that liability
are not waived solely by reason of having transacted business
in Alabama without registration.”). Thus, to the extent
that Plaintiffs seek to impute Belle Mere's potential
liability to Williamson solely because Williamson is a
current or former member or manager of Belle Mere, Williamson
has no such liability.
Williamson may be individually liable to Plaintiffs for
her own tortious conduct, even if she purported to
act on Belle Mere's behalf at the time of such conduct.
An individual's status as a business entity's agent
does not shield him from personal liability for torts that he
personally commits, “regardless of the capacity in
which that person acts.” Inter-Connect, Inc. v.
Gross, 644 So.2d 867, 869 (Ala. 1994). Plaintiffs allege
that Williamson was personally involved in the trespass on
their property and the conspiracy with Benison. While many,
if not all, of the allegations in the complaint are generally
applicable to all Defendants, Plaintiffs list Williamson by
name and allege, among other facts, that she
“trespassed on to Plaintiffs' land with
bulldozers” and “started building [a] road”
on Plaintiffs' property. Although the evidence may reveal
that Williamson did not personally engage in these acts, this
Court is required to accept the complaint's allegations
as true in ruling on the present motion, and any dispute of
material fact is grounds for denying judgment on the
pleadings. Perez, 774 ...