*1
Discussion
jurisdiction
is without
to
ap-
consider his
Watson,
peal.
exceed by recommended prosecutor agreed by to the defen- (a) dant, the notice specify must: (b) appeal jurisdictional defect, is for specify that appeal substance of the by was raised written motion and ruled on (c) trial, before or state the trial court ASSOCIATES, NEUROBEHAVORIAL granted permission appeal. R. Tex. P.A., Appellant, App. 25.2(b)(3). P. Neither of Scott’s no- appeal tices of requirements. meet these HOSPITAL, CYPRESS CREEK Scott’s second notice of states INC., Appellee. appealing that he is the trial court’s sen tence, plea “which occurred after his No. 01-97-01135-CV. true Adjudicate to the State’s Motion to Texas, Appeals Court of Guilt, agreed but without an recommenda (1st Dist.). Houston tion.” appeal, second notice of Scott have been trying lay July groundwork argue that he had an unre stricted to appeal pun because the plea
ishment exceeded the agreement. However, the court of criminal appeals has prosecutor held that when a recommends adjudication deferred in exchange for a plea guilty, defendant’s judge the trial if, does not exceed that recommendation upon proceeding an adjudication
guilt, he later punishment assesses law, range within the allowed therefore of an appeal dismissal for want jurisdiction required such a case is 25.2(b)(3)
Rule complied is not with. Wat (Tex. son v. 714-15 case, Crim.App.1996). In present years imprison court’s assessment of 16 ment is within the range punishment
aggravated deadly weapon. assault with a See Ann., Penal Code
§§ 22.02(a)(2)(establishing aggravated as sault with a deadly weapon as a second 12.33(a) felony);
degree (setting punish range years ment of two to 20 confinement (Vernon 1994). felony) for a degree second Consequently, appeal, Scott would have App. comply had to with R. P. 25.2(b)(3). so, Having not done this Court *2 Agreement relevant portions provide:
to this Representations 8.1 and Warranties of Association. *3 represents warrants
Association and Hospital], upon execution and [the throughout Agreement the term of this as follows:
a) Association is Texas duly organized, validly standing and in under existing, good the laws of the State of Texas and is authorized to do business Texas. Breach or Bank- 5.3 Termination for ruptcy. party Agreement If either to this Brookner, Jeffrey J. Hirsch & Westh- substantially comply should ... fail to eimer, P.C., Houston, Appellant. for (the Agreement with the terms of the Carver, Guariglia, Diane M. Teresa A. Party”), nonbreaching “Breaching
Houston, Appellee. party may Breaching transmit to the Party written notice of its intention to Panel consists of Chief Justice If Agreement.... terminate this and and SCHNEIDER Justices COHEN requiring event such notice is a default MIRABAL. Breaching Party, hereunder Breaching Party if the shall within fail OPINION (SO) thirty days to correct the default MIRABAL, MARGARET GARNER notify specified in such notice and so Justice. non-breaching party, Agreement pro- shall terminate forthwith This is an from an order ... vided this Section 5.3 [or] appellee’s, Cypress Hospital, Inc. Creek 5.5.... (“the Hospital”), summary motion for
judgment implicitly denying appel- Association, lant’s, Neurobehavorial P.A. by [the 5.5 Immediate Termination (“Association”), summary judg- motion for Hospital].
ment. We reverse and remand.
Notwithstanding anything to the con- History Facts and Procedural Hospital] trary Agreement, [the in this immedi- Agreement terminate this The Association and the en- ately by written notice to Association tered into Clinical and Administrative (such upon termination to be effective which Agreement (“Agreement”), Services notice) of such receipt Association’s Association, its through upon occurrence of of the follow- director, Dr. owner and sole John W. Cas- ing events: sidy, provide would medical services to the $15, per 833.33 month.1 5.3, 5.4, 5.5, tions or 5.6 of the 1. The initial term of the was two years unless otherwise terminated under sec- Summary Judgment in Favor d) an by Cassidy to remain the failure employee2 of the Association. only when proper is Summary judgment added.)
(Emphasis no there is movant establishes 14, 1995, into the months April seven On fact and of material genuine issue the Association filed matter as a is entitled movant Secretary of Mkts., the Texas dissolution with Inc. Food law. Randall’s Asso- Following Johnson, its State.
ciation, per- summary judg continued to through Cassidy, entitled to A defendant matter as a disproves called for under form the medical services ment the evidence each of the 3,1995, one element of May the Hos- of law at least Agreement. On *4 Siegler, Lear causes of action. plaintiffs Association written notice to the pital sent (Tex. 470, Perez, 471 819 S.W.2d Inc. v. Agreement, intent to terminate the of its 1991). evi produces After the defendant Agree- solely on section 5.5 of based summary judgment, entitling it to dence re- notice was ment.3 The termination plaintiff present to shifts to the burden 7,May on 1995. by the Association ceived v. a fact issue. Walker creating evidence 19, 1995, the Association sued On June (Tex.1996). 375, Harris, 377 924 S.W.2d anti- for services4 and unpaid we summary judgment, reviewing days of contract. Two cipatory breach in inference every reasonable indulge must filed, filed the Association after suit any resolve the nonmovant and favor of its articles to revoke dissolution Mkts., Food in favor. Randall’s doubts its The Secretary of State. evi will take all at 644. We the Asso- issued a certificate State as true. to the nonmovant dence favorable in accordance with ciation’s revocation summary judgment Id. will affirm subsequently law. The in Texas advanced any if of the theories contending summary judgment, motion, pre by judge, moved for ruled automatically Cin dissolution is meritorious. See the Association’s served for review Cates, employment, and Ins. v. Cassidy’s terminated cinnati Co. Life (Tex.1996). 623, therefore, it was entitled to terminate 626 5.5(d). Addition- under section Agreement Discussion ally, Hospital argued the Association express contained the trial court breached the warranties contends The Association for Agreement by in dissolv- motion granting section 3.1 erred the Texas professional summary judgment as a Texas because ing itself (“TPAA”) al- Act filed a cross-motion Association tion. The Association Professional to revoke trial court summary judgment. for The lows Therefore, it con- articles of dissolution. Hospital’s motion for sum- granted the entitled to Hospital was not tends that the followed. mary judgment,5 and this contends it is entitled 4. The Association “Employee” 1.7 of the 2. is defined in section $19,791.66 services ren- from the for part employee Agreement "any or full-time April by Cassidy between dered of Association.” 6,May Hospital’s termination notice 3. The pro- summary judgment 5. The order pertinent part: nothing from “take that the Association vided provisions of any accordance with al- Hospital] "[I]n acts or omissions [the and Adminis- accrued on paragraph leged by 5.5 of the Clinical which the [Association] agreement April The record does Services 1995.” trative or after terminated, denying granting or effectively any immediate- either hereby contain order judg- summary upon motion take effect the Association’s ly. termination shall This ment. date received.” associations, applicable terminate the based on either ex- 5.5(d) alternative, section or 3.1. In the cept provisions to the extent that the contends even its Corporation the Texas Business Act con- ineffective, Cassidy revocation was flict with the of this Act.” provisions Association, employee mained an 1528f, § Rev.Civ. Stat. post-dissolution, by performing services 1997). The Association concedes that the wind-up the Association’s af- TPAA expressly permit does not the revo- The requires fairs. resolution of this issue dissolution,6 cation of articles of like the interpret us relevant sections of the Corporation Texas Business Act TPAA. (“TBCA”).7 Nevertheless, it contends that TPAA, together, TBCA and the construed Applicable The Rules Statutory allow a association to revoke Construction articles of dissolution. primary duty The court in hand, Hospital, argues on the other construing a statute is to effectuate the legislature intentionally chose not Hall, legislature. Seay intent of the give associations the in Legislative 5.W.2d to revoke articles of dissolution. Addition- tent should be examining determined *5 ally, it contends that the TPAA should not language the used in the statute. v. Jones be construed in with the connection TBCA Assocs., 348, Del Andersen & 539 S.W.2d a conflict the because exists between two (Tex.1976). 350 Each statute should be According Hospital, statutes. to the this word, if every phrase, expres read as spe- conflict the is evident because TBCA purpose. sion were chosen for a State v. cifically corporation may provides that a Counsel, Pub. Util. 849 S.W.2d Office of dissolution,8 revoke articles of while the dism’d, (Tex.App. Austin), 868 writ - completely regard.9 TPAA in is silent this improvidently granted, 866 S.W.2d disagree Hospital’s position. We (Tex.1993). Moreover, “every word ex presumed cluded from a statute must be TPAA regarding While the is silent the have been excluded for a purpose.” Cam right of a association to re- Garrett, Inc., eron v. Terrell & dissolution, legislature voke articles of the intentionally provi- included the TPAA a in TPAA TPAA, creating interplay sion between the Relying on section 25 of the the of TPAA the Association contends that a TBCA. Section 25 the profession applicable that al association revoke articles of disso mandates the TBCA be provides lution. Section 25 that associations unless there is a “[t]he Corporation Texas Business Act shall be conflict between the two statutes. provides: by Secretary 6. Section 20 of the TPAA tion after the issuance the of dissolution, State of the certificate of Upon issuance of the certificate of dissolu- by corporation may carry Secretary tion on its business as dissolu- tion shall become effective and the exis- though proceedings ... dissolution had not except tence association shall cease occurred.... suits, purpose proceedings for the other 6.05(D) (Vernon Tex. Bus. art. Corp. Act Ann. and acts for the Supp.1999). the association. 1528f, Stat. Ann. art. 6.07(B) Tex.Rev.Civ. Bus. Act Ann. art. Corp. Cf. 1997). (Vernon Supp.1999) ("Upon ... issuance of dissolution, existence of the certificate of 6.05(D) provides, pertinent part, in 7. Article cease, corporation shall that: Act.”) (emphasis 6.05 or 7.12 this Article [U]pon the issuance added). State of a certificate of disso- of revocation lution, effective, the revocation shall be corporation accompanying existence of shall be supra note 6 and text. 9. See interrup- deemed to have continued without 6.05(D). However, contrary to Ann. art. § 25. Based Rev.Civ. Stat. argument, this does 25, we the Association’s language of section plain on the to en- powerless was mean the intended for the legislature believe the Agreement. terms of the force the the TPAA gaps to fill where TBCA the Associa- depended on rights Hospital was silent. Memorial Cf. - The 3, 1995, day the May status on tion’s McCown, Woodlands its intent to written notice of Hospital sent (Tex.1996) statutory (noting when If the terminate evalu unambiguous, courts can language right to terminate had on terms only intent based legislative ate it did because when statute). the TPAA is silent Because dissolved, Asso- though even then then ability as regarding articles of dissolution ciation can revoke dissolution, to revoke articles of sociation date of relate back to the and have that turn to the TBCA to determine we must unfair grossly it would be exists. such post its ex Association assert let the facto per Article of the TBCA Surely the Associa- change as a defense. corporation mits a to revoke so, doing from estopped be would Corp. dissolution. See Tex. Bus. Act Ann. very conditions having created 6.05(D) (Vernon Supp.1999). impression Hospital the correct gave the lan TPAA does not contain 20 of the reject that it was then dissolved. contradicts the lan guage specifically argument of the Association. 6.05(D). Therefore, we guage of article as Our no conflict exists between these find that may revoke articles of dissolution sociation Moreover, reading section two statutes. revers provide a basis for does not alone conjunction TPAA in article 20 of the *6 in fa summary judgment granted ing the TBCA, pro of the we hold The trial court’s Hospital.11 vor of the may fessional association revoke articles Hospital’s motion did order dissolution.10 summary upon the basis which state professional Because we find that a as- Therefore, pre to judgment granted. was action, may sociation take such we must show the Association must appeal, vail on the Association’s contention that address Hospital’s in the every ground alleged that the revocation of its articles of dissolution support to motion was insufficient dissolution, related back to the date of its Galveston, City judgment. Woomer and, therefore, it as a never ceased exist (Tex.App 837-38 S.W.2d . -Hous association, Cassidy and professional denied). 1988, writ Dist.] ton [1st employee an of the Association at mained all times. Employee Cassidy Remain an Did Following Dissolution? provides
The law that revocation in asserted its mo and The back to the date of dissolution relates it was summary judgment that tion for [professional of the associa “the existence immediately terminate have continued entitled to shall be deemed to tion] 5.5(d) because under section Agreement Bus. interruption.” without Com.Code professional shall association State inter- existence of 10. We note that the suits, preted purpose other the TPAAto allow cease for necessary winding to revoke articles of dissolution. tions for proceedings, and acts profession- our that up). and the the time of its dissolution 11. Between may revoke articles of dissolu- al association dissolution, the its articles of date it revoked provide a basis for revers- does not alone legally provide the med- could not Association summary judgment granted in favor of ing the Agreement. ical services called for under Hospital. 1528f, § Stat. Ann. See Tex.Rev.Civ. that, (Vernon 1997) (stating upon 5.5(d) summary based on section employee judgment an of the Cassidy ceased to be improper. following Agreement its dissolution. The of the Association is evidence Association contends there summary was not Because an of the Cassidy employee that remained 5.5(d) of the proper based on section following by per- dissolution Association sum- we must decide whether Agreement, forming necessary “wind-up” activities on the mary judgment be affirmed the Association’s affairs before it chose Association breached sec- ground and, of dissolution revoke its articles Agreement, required of the which tion 3.1 5.5(d) therefore, apply. section does not duly it to remain a licensed the entire term of throughout After a association receives of dissolution from the Sec- its certificate retary of the existence associ- Breach Section Did the Association cease, purposes “except ation shall ? Agreement 3.1 (2) (1) lawsuits; proceedings; other of: (3) the As question acts There is no the association.” breached section 3.1 sociation Tex.Rev.Civ. Stat. 1997) (em- by dissolving itself as a Texas Agreement added). However, Here, in association. or phasis there is evidence dissolved, properly der to terminate after the Association Cassi- comply had to ground, on this many Hospi- services for the dy performed (1) Agree the terms of section 5.3 tal, including: meeting with nurse man- staff; required ment. 5.3 agers provide input program specif notice the (2) specify its termination develop- reviewing program design and termination, (3) provide for the ic reasons plans; supervising treatment ment days with 30 to cure its (4) staff; leadership assisting with staff (5) breach. attending clinical and process group; meetings Hospital; administrative for the 3,May 1995 termination (6) development participating referral notice did not mention the Association’s (7) updating Hospital; activities for the 3.1 of the breach of section (8) case man- plans; providing
treatment days to give nor did it the Association 30 *7 agement updates companies; to insurance Rather, letter cure the breach. the notice (9) care. providing indigent “im- agreement purported to terminate the 5.5. mediately,” relying solely on section shown, If had as a matter Hospital the failed to follow Consequently, the law, that these services were not neces- necessary to prerequisites contractual affairs sary “wind-up” the Association’s Agreement. properly terminate that, Cassidy performed these or when Therefore, summary judgment cannot services, employee acting he was not as an ground, be affirmed on this either. Association, it would have been enti- in the every ground alleged on We find that tled to terminate the based 5.5(d). However, summary judgment Hospital’s it make motion for did not section Therefore, support the action of that was insufficient to showing. we find such a Therefore, we judge. trial sustain Consequently, material fact issues exist.12 Inc., Corp. Liggett Group, 474 A.2d case that address- Int’l 12. We have found no Texas 133, (Del.1984) (citing can be considered M. Fletch- es the issue of what actions 136 William "wind-up” entity's (1979)). necessary "Winding- a dissolved § 7968 Corporations er, However, corporate law Delaware affairs. that are up” other acts also includes "Winding-up” guidance. in- provides some entity’s bring af- necessary to the dissolved assets, settling "collecting entity's volves Indus., re Citadel to a conclusion. See In fairs creditors, apportioning the with its Inc., (Del.Ch.1980). 423 A.2d profit Rothschild amount of its and loss.” my disagreement first, third, rately express points and fourth Association’s grounds. two majority opinion on error. First, it is I do not believe Motion for associa- Association’s determine whether may articles of dissolution Summary Judgment tion revoke presented order to resolve issues error, point In its second if a appeal. Even trial court the Association contends the action, majority as the could take such by implicitly denying erred its motion holds, in this case question central Normally, party summary judgment. an Cassidy Did remain remains the same: denying from an order Association, post-dissolu- employee of Stevens, Novak v. summary judgment. tion, affairs? wind-up the Association’s (Tex.1980). However, we need not con- question, this To answer par exception opposing an arises when the TPAA. strue the summary judgment is ty’s motion for we need to The Association contends judgment appealed. and that granted whether a determine Agan, Commissioners Court v. can articles of dissolution be- revoke cause, proper, then the if such action was articles of dissolution revocation its Discussion lated back to the date its to have con- “and its existence deemed [is] motion, it its the Association asserted interruption.” tinued without See judgment was entitled to on two causes of Bus. Com.Code anticipato- action—breach of contract and argues it Supp.1999). Consequently, ry repudiation. appeal, On the Association exist, never ceased to legally because it judgment asks this Court to render its of the As- Cassidy employee remained an favor on these claims. Because fact issues at all times. sociation an Cassidy exist as to whether remained out, majority correctly points As the following employee of the Association dis- true, argument accepted even we purposes solution for it “does not mean Association, fact issues also exist as to powerless to enforce the terms whether the constituted actions dis- Agreement.” Once anticipatory repudiation an or breach of solved, to enforce was entitled we overrule irrespective the terms of point the Association’s second of error. come the Association could of whether We reverse the and remand and revoke its dissolution.2 back later the case to the trial court. majority’s Therefore, I disagree with per- the TPAA consideration of whether *8 to revoke SCHNEIDER, professional mits a association concurring. Chief Justice articles of dissolution. SCHNEIDER, H. Chief MICHAEL Second, majority’s disagree I with the Justice, concurring. professional that a association conclusion dispo- Even majority’s may I concur with ultimate revoke articles of dissolution. However, of the TPAA3 does not sepa- though I write section 20 sition of this case. may finding professional association agree majority’s the whether a 1. I with dispositive was not entitled to terminate the of dissolution is not voke articles appeal. necessary under section 3.1. to decide the issues or rejecting the contention 2. In Association’s provides: 20 of the TPAA 3.Section of its articles of dissolu- that the revocation dissolved, Upon of the certificate of dissolu- issuance date it the tion related back to the Secretary the dissolu- question by the of majority recognizes the of tion that (Tex.1981). Inc., 585, 540 618 S.W.2d expressly permit professional a association dissolution, Moreover, language major- we should not insert revoke articles of the except give effect to clear association into statutes ity professional holds Hunter v. Fort Worth majority legislative action. The intent. may take such (Tex. by construing Capital Corp., sec- reaches its conclusion 1981); Baldwin, conjunction tion 25 of the TPAA in Smith Here, evidence there is no article of the Texas Business Cor- 616 (“TBCA”), profes intended to allow a legislature Act which allows a porations of dis association to revoke articles corporation to revoke articles of dissolu- sional fact, In an examination solution. tion.4 corpora of a post-dissolution legal status 25 of the TPAA states that Section professional a association re tion versus Corporation Act Texas Business “[t]he contrary. veals the applicable professional shall be tions, TPAA provides 20 of the except provi- to the extent that the dissolution, of a following legal status Corporation the Texas Business sions of “except this association ceases provisions Act with the of conflict suits, 1528f, purpose proceedings Ann. art. other Act.” Tex.Rev.Civ. Stat. (Vernon 1997) added). necessary § acts (emphasis ” Ann. art. that section 25 of the association. majority The reasons Tex.Rev.Civ. Stat. (Vernon 1997) 1528f, § add- (emphasis legislature TPAA indicates the intended ed). legal comparison, corporation’s In a gaps for the TBCA to fill where the in Arti- “except provided status ceases premise, TPAA was silent. Based on this Voluntary Dissolu- language is no in the cle 6.05 [Revocation and because there Proceedings] [Limited lan- or Article 7.12 specifically contradicting TPAA TBCA, this Act.” Dissolution] the Survival guage of article 6.05D After 6.07(B) (em- Act Ann. majority finds no conflict between the two Bus. CoRP. added). Therefore, phasis profes- it holds that a statutes. may revoke articles of sional association TPAA differ Clearly, the TBCA dissolution. of dissolution. legal as to the effects is a conflict between the I a between the there believe conflict exists statutes, and, First, section 25 of the specifically two under two statutes. the TBCA TPAA, TPAA controls. See provides corporation right a Tex.Rev. However, while the revoke Civ. Stat. holding, is not majority’s under the such completely regard. TPAA is in this silent a legislature intentionally gave Texas case. of dissolu- revoke articles corporations right, while not tion, only grants right a majority asso- not same to Texas expressly every word associations presume ciations. legislature, but modifies must excluded for excluded from statute Garrett, by creating a of the TPAA v. Terrell & section 20 purpose. Cameron effective, Iution, be the revocation shall effective and the exis- tion shall become corporation the association shall cease shall be tence of existence suits, purpose proceedings interrup- for the other have without deemed to continued winding up of and acts for the by the tion after the issuance *9 the association. dissolution, the State of the certificate (Vernon Tex.Rev.Civ. Stat. Ann. corporation may carry its business as 1997). proceedings had not though ... dissolution occurred. 6.05(D) pertinent part, provides, in 4. Article Bus. Act Ann. Corp. that: Supp.1999). [U]pon by the the issuance disso- of a certificate of revocation of State judicial exception legal to the rule that the association, follow-
status of ing perform ceases wind-up the dissolved acts entity’s affairs. reasons,
For these I believe a conflict exists between the and the TPAA. TBCA disagree majority’s I holding respect- I revoke dissolution. fully concur.
In re TEXAS WORKERS’ COM-
PENSATION INSURANCE
FUND, Relator. No. 01-99-00246-CV. Liberato, Rutter, Lynne Geoffrey Kent Boone, L.L.P., Pujol, Haynes Patrice & Texas, Appeals Court Houston, for Relator. (1st Dist.). Houston Orth, III, Huddle, Philip Roy J. Hous- July ton, Real Parties in Interest. HEDGES,
Panel consists Justices ANDELL, and DUGGAN.*
OPINION HEDGES,
ADELE Justice. Texas Code Pursuant Government 22.221(b), relator, Texas Work- Fund, brings Compensation ers’ Insurance petition seeking for writ of mandamus denying review of the trial court’s order plea motion to abate and to the relator’s deny for writ jurisdiction. petition of mandamus. 1994, Billy Dunn sus- September injury body to his “knee and
tained an scope generally” while the course and with Turner Brothers employment his * Houston, Jr., participating by assignment. Duggan, Lee retired Jus- at The Honorable tice, Appeals, Court of First District of Texas