(2) any contractual obligation of the corporation or any matter
relating to or arising from the obligation on the basis that the holder, owner,
. . . or affiliate is or was the alter ego of the corporation, or on the basis of
actual fraud or constructive fraud, a sham to perpetrate a fraud, or other
similar theory, unless the obligee demonstrates that the holder, owner, . . .
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, owner, . . . or affiliate[.]
TEX. BUS. CORP. ACT art. 2.21 (Vernon 2003).
13
Southern Union is distinguishable from the present case, however, because
the obligation that plaintiffs seek to recover on is based on CBAM’s alleged
negligence, rather than on a contract. Article 2.21 speaks only to a “contractual
obligation of the corporation or any matter relating to or arising from the
obligation.” TEX. BUS. CORP. ACT art. 2.21 (Vernon 2003); see Nordar Holdings,
Inc. v. W. Sec. (USA) Ltd., 969 F. Supp. 420, 422 and 423 n.2 (N.D. Tex. 1997)
(noting that article 2.21 applies to contract cases).
Defendants also suggested at oral argument that Smith, as CBMI and
CBAM’s president, cannot be in a single business enterprise with those corporations
as a matter of law and that there is no evidence of inequitable conduct that would
support veil-piercing. Although these arguments are belatedly raised, we address
them for the sake of clarity. See Najarro v. First Fed. Sav. & Loan Ass’n of
Nacogdoches, 918 F.2d 513, 516 (5th Cir. 1990) (“In the absence of manifest