*1 816 overruled, judgment and the of the trial
аppeals rulings from the and decisions of court is affirmed. school officers.6 Based subordinate provision, civil courts held to on this were jurisdiction relating
have over matters no until
to the administration of school laws
resort made to school authorities. was first
See, Sanger Indep. v. e.g., Warren Sch.
Dist., 183, 159, 160 116 Tex. 288 S.W.
(1926). However, then, even such exclu- jurisdiction applied only sive to matters NORTHBOROUGH CORPORATE supervision school au- placed under the PARTNERSHIP, LIMITED Thus, against thorities. Id. suit L.L.P., Appellant, of contract school district breach buy equipment was not a matter of school that required administration of school laws & OF CUSHMAN WAKEFIELD exhausting administrative remedies before TEXAS, INC., Appellee.
filing Spring suit district court. Branch No. 14-04-00364-CV. Co., Equip. Sch. v. Metalab Indep. Dist. (Tex.1964). 48, Texas, Appeals Court (14th Dist.). Houston long- The current version of the Code no charging the provision er contains a Com- 21, April (the “Commissioner”) missioner of the (or official) TEA other state with the ad- laws, pro-
ministration of school but does
vide, predecessors, persons did as
aggrieved by laws of the State or school pertaining
decisions of school boards
those to the Commission- appeal laws 7.057(a).7 §
er. See Tex. Ann. Educ.Code
Therefore, any to whatever extent exclu- jurisdiction
sive remains with the Commis- Code, TEA the current
sioner or under beyond governed by
does not extend issues State, of the as set forth in
the school laws 2 of the In this
the Titles Code.
case, pleadings parties of the issues, no to state no such we see
purport falls to conclude that this lawsuit
basis jurisdiction exclusive
within Accordingly,
TEA. third issue is CISD’s 8, 1949, R.S., provides the TEA Leg., Code further 51st ch. 7. The 6. Act of June involving hearings state school "shall conduct repealed by Laws Act of 1949 Tex. Gen. supervision law at the direction and under 1, 1969, R.S., Leg., Sept. ch. 61st of the commissioner.” Tex Educ.Code Ann. Tex. Gen. Laws 3024. 7.021(b)(3) (Vernon Supp.2004-05).
Cushman’s motion. now appeals both that decision and the trial Northborough’s court’s denial of mo- own summary judgment. tion *3 Background Factual Cushman, below, plaintiff is a real brokerage firm. estate building a Houston office that was owns subject brokerage of a lease commis- between Cushman and the owner, building’s formеr Alliance Enter- prises, Inc.1 This factual back- appeal’s ground complicated only by is building’s in the change ownership, but that the also the fact lease was assigned several times. The renewed present whether the lease parties dispute arrangement” negated a “new Northborough’s obligation pay Cush- previous under a man’s commissions Alli- and whether assumed com- Cushman’s subsequent agree- a lease missions under ment. Cushman and Alliance enter into a com- Kеrrebrook, Houston, Mary A. Van for (Texaco lease). missions
appellant. In agreed Alliance Cush- Perkins, Houston, appel- Arthur for Val if brokerage man a real estate lee. subsidiaries, affiliates, or of its Texaco of Alliance’s or nominees became tenant FOWLER, of Justices Panel consists building. Texaco did become a ten- office EDELMAN, and FROST. The schedule of com- building. ant of the that, if provided the lease was missions OPINION extended, if renewed or a tenаnt leased FOWLER, McKEE Justice. WANDA pay an space, additional Alliance would The from a suit Cushman additional commission Cushman. appeal arises (“Cushman”) Texas, obligated Alliance Inc. schedule of commissions & Wakefield commissions in the brokerage filed for lease commissions al- prop- Northborough Corpo- event Alliance sold its interest legedly due it from (“North- erty, obligated Limited and also Alliance to ensure Partnership, L.L.P. rate agreed writing Although parties both moved that the new owner borough”). Alliance’s summary judgment, granted the court assume Northborough’s predecessor in in 1998. Alliance was also defendant 1. Alliance was interest, appeal. having building below but is not a to this sold the to Northbor- this, Immediately after man’s commissions under and Restated into an “Amended parties agree fully paid The that Alliance entered point, At that North- Equiva. Lease” with related to the Cushman’s commissions com- borough stopped paying Cushman’s Texaco lease. missions and refused Cushman’s demands assigns Enter- Texaco its lease to Star to do so. (Star lease). prises assigned Texaco its lease of the History Procedural Enterprises. office building Aliance and Cushman sued joint Enterprises was a venture between Northborough, seeking commissions for *4 Texaco and Aramco Services. When ten-year on remaining period time 1994, Alli- original Texaco lease ended in dismissed from Star lease. Aliance was ance entered into a “Renewal and Amend- dissolved more the suit because was ment of Lease” with Star. The Star lease years than filed three before Cushman ten-year beginning August for a term partial suit. filed a motion for 1, in ending August 1994 and of 2004. summary asserting that North- judgment Cushman acted as the lease broker for borough owed it commissions based on the and, again, agreed once Aliance granted trial Star lease. The court Again, the Cushman’s commission. summary partial judg- man’s motion for parties agree paid that Aliance Cushman’s Northborough’s motion ment but denied building’s commissions while Star was the in North- summary judgment, which lease, tenant. the original Like Texaco borough gave several reasons Cushman permitted assign the Star lease Star to judgment, final prevail. could not lease, which Star later did. Northborough trial court found that building
Alliance sells the to Northbor- com- liable to for Cushman’s ough. August of 2004—when through missions ended—and also the Star lease would have lease, years Four into the Star North- awarded Cushman reasonable and neces- borough purchased the building office from attorney’s sary appeal fees. This followed. purchase agreement, Aliance. In the Northborough agreed to assume Aliance’s Standard of Review Cushman’s commissions both Cushman and Northbor- Because respect to the Star lease. Cushman summary judgment moved for represent did not Alliance Northbor- motion granted the trial court ough in of purсhase connection with the de Northborough’s, and denied we must building. the office presented that questions termine all were leases from Props. Oper. FM v. to the trial court. Co. lease). (Equiva (Tex. Austin, 868, 22 City S.W.3d 872 of 2000) (“When 1999, for sum August years re- both sides move of with five grants the trial court maining assigned mary judgment on the Star other, the re joint a Texaco venture one motion and denies Equiva, its lease to viewing court should review both sides’ Company. between Texaco and Shell Oil deter summary judgment in the lease evidence and participate Cushman did not and, presented.”) (citing questions in the mine all negotiations County Agan, v. Court Titus Northborough represented Comm’rs of (Tex.1997)). 77, Each 940 81 they did not have a broker. S.W.2d 820 ster, (stat 223, (Tex.2003) establishing
“bears the that it is burden 128 S.W.3d 229 judgment entitled to law.” ing as a matter of primary court’s concern is to ascertain News, City v. Morning Garland Dallas parties’ true expressed intentions as (Tex.2000) 22 (citing 356 instrument); S.W.3d City Clear Lake Water Guynes County, v. Galveston 861 S.W.2d Dev., Ltd., Kirby Auth. v. Lake 123 S.W.3d (Tex.1993)). 861, 862 When a triаl court’s 735, (Tex.App.-Houston 743 [14th Dist.] granting summary judgment order does denied) (same). 2003, pet. give must We specify grounds, we must affirm if effect to all of the contract’s clauses and summary judgment grounds way any potential read them such a Co., merit. 22 Props. Oper. have FM Ogden are conflicts harmonized. See v. (citing Star-Telegram, at 872 Inc. S.W.3d Bank, State 662 Dickinson S.W.2d (Tex.1995)). Doe, v. 473 S.W.2d (Tex.1983); Derr see also Constr. Co (Tex. Houston, City the trial court asserts writ) 1992, no App.-Houston [14th Dist.] in concluding erred as- (stating court should examine the entire sumed Alliance’s commis- writing “seeking to harmonize and recon Additionally, sions on the *5 to conflicting provisions great cile the the Northborough urges us to find that (citations omitted). possible”) est extent original agreement lease commission be- tween Alliance and Cushman is void be- Analysis it
cause lacks a termination date. Alterna- that, tively, Northborough argues should origi- We will first address whether the Northborough fully we find assumed Alli- void, nal agreement lease commission is as original com- obligations under the suggests, because lacks a agreement agreement mission and the is termination date. enforceable, grant- the trial court erred in original agree- The lease commission ing summary judg- Cushman’s motion for ment of a termi- is not void for lack ment because it raised a fact issue as to date. nation lease was a “new ar- whether out, Northborough points As rangement,” meaning that would Cushman original agreement lease commission bе not be entitled to commission for the tween Cushman and Alliance does not Equiva lease. express contain an termination date. contends the commis- Northborough argues that this makes the agreement is enforceable. Cushman agreement commission unenforceable. also asserts that was obli- that a termi response, argues gated Cushman’s commissions until if it required, nation date is not but is expiration of the Star lease in 2004 by the.un required, supplied date is Alliancе’s assumed reject derlying lease. Because we North- to do so and because the borough’s argument express that an ter not supersede lease did or vitiate the Star statutorily required mination date under is lease. prelude the facts of this case as a to re require parties’ arguments The covery, do not address whether the we commission us construe Cushman’s by im supplied termination date could be ambigu agreement, which no one claims is plicatiоn underlying from the contract, ous. When we construe a we are expressed guided by to seek the intent as Our determination is parties’ 1101.806(c) Davidson, section of the Real Estate Li- the contract. J.M. Inc. v. Web Perl, Act, at governs person (finding which a See 20 S.W.3d cense when a termination date is a may provide a commission for the failure sue recover a precedent failure to meet condition person sale of real estate. “A unenforceable). renders the contract We maintain an action in this to recover state given decline to follow Perl for the reasons a purchase commission the sale or below. agree- promise real estate unless the or based,
ment on which the action a is First, 1101.652(b)(12),the section section memorandum, by in writing signed is court, by nothing relied on the Perl has party against whom the action is enforceability of a broker’s do with the brought person or a authorized Instead, it commission relates party sign document.” Tex. Occ. solely suspension to the or revocation of a 1101.806(c). Thus, to be action- broker’s Code real estate license. Section and, consequently, enforceable —a hand, able— 1101.806, on the other lists the re- writing must be “in quirements for a commission signed by charged.” to be promised order for a broker recover the Harkinson, Trammel Crow Co. No. 60 v. commission. (Tex.1997). These Second, nothing in section 1101.652 ref- provisions governing recovery code ability maintain erences a broker’s payment commissions consider cause of action. See Tex. Occ.Code lease a “sale” and therefore also allow earlier, § 1101.652. As noted 1101.652re- recovery of a commission for a lease. Tex. solely suspension lates to the or revocation 1101.002(5). The commission of a broker’s real estate license. Occ.Code Id. agreement between Alliance and Cushman *6 1101.652(b). Yet, § section 1101.806 does clearly requirements satisfies these —the state the circumstances under which a bro- agreement writing is in signed and is may ker maintain a cause of action. Id. president the executive vice of Alliance. § Supreme 1101.806. As Texas Court noted, Legis- has section “[In t]he 1101.806 Northborough, relying on section quite explicit: lature was a broker not 1101.652(b)(12)of the Real Estate License a commission recover unless the commis- Patrizi, Act and Perl v. urges us to find agreement signed by sion is in writing and that a specify broker’s failure to a termi Crow, charged.” to be Trammel nation date in agreement the commission 1101.652, at 944 S.W.2d 635. section we precludes suing the broker from for com legislative do not find the same mandate. missions. See Tex. Occ.Code (23) 1101.652(b)(1), § Tex. Occ.Code Cf. 1101.652(b)(12); Patrizi, § Perl v. reasons, 1101.806. For these we (Tex.App.-Texarkana disagree the Perl court and conclude denied). section, pet. entitled agreement that the commission between Suspension or “Grоunds Revocation statutory Cushman and Alliance met the License,” allows the Texas Real Estate requirements for an enforceable commis- suspend to or revoke a Commission bro specify ker’s license if the broker “fails to entitled Cushman was to commissions a definite termination date that is not sub on the Star lease. ject prior to notice in a contract.” Tex. 1101.652(b)(12). Next, Northborough on the trial Based this claims Occ.Code section, appeals wrongly Equiva another court of has held court concluded that the obligated Northborough pay that a broker cannot enforce a commission lease to Cush- agreement if it brokerage lacks a termination date. man real estate commissions ough’s obligations
because it assumed Alliance’s under it.2 We consider But, assumption first the pay to the fees. the motion for sum- issue.
mary judgment did not claim that Cush- Northborough explicitly assumed the man was entitled to broker fees under the obligation pay to commissions on the Equiva lease and the trial court did lease. Star Northborough hold that to obligated Northborough deny does not that on the pay Cushman broker fees based language lease contains obligating trial court that Equiva lease. The held fees; pay Alliance to Cushman’s broker it Northborough required pay broker that it merely purchased maintains once lease, fees based on the Texaco Alliance, building from аnd entered lease, which was renewed via the Star lease, into the the contract was not assumed Alliance’s ob- explicit enough to bind it to assume Alli ligations under the Texaco and Star leas- obligation pay Cushman’s com including obligation pay es— on the missions Star lease. We conclude July man broker fees until otherwise. view, question In our the real before us law, building’s pur Texas Under is whether Cushman was still entitled to expressly must assume the obli chaser commissions under the Star lease once gation pay broker’s commission before lease. executed Regency can purchaser be held liable. Northborough claims first when Advantage Bingo Ltd. v. The Idea- P’ship purchased building, express- it did not Inc., (Tex. Watauga, 936 S.W.2d ly assume 1996) curiam). Here, Northborough (per fees on the It then broker expressly did assume Alliance’s that, claims even if it did assume an obli- generated Cushman’s commissions gation Cushman on the Star by the Star lease. Two sections obligated it still is not purchase specifically bind broker fees be- 2.1(b) First, Northborough. pro section ing arrangement” a “new between Al vides that would assume *7 Alliance, replaced superseded and the obligations stated with liance’s commission Thus, Northborough contin- Star in particularity another section ues, arrangement” because a “new agreement: “[Northborough] shall assume in- created and because Cushman was not obligations under the commis [Alliance’s] arrаnge- in of that negotiation volved the in described Section ment, was not entitled to recover 12.1(h) arising Closing after the Date.” commissions under the lease. 12.1(h) that provides Section Northbor- only leasing for arguments responsible find both of these flawed would be We and, below, from the explained we reach two commissions owed to Cushman as (1) lease, “Except leasing Lease: the com conclusions: under the Star Star re payable Alli- mission with explicitly [Cushman] assumеd lease, leasing spect to the there are no obligations pay ance's Cushman’s bro- Star (2) fees; unpaid accrued but with re kerage Equiva lease was commissions superseded spect any that Lease or which become arrangement not a new Closing payable prior at time to the extinguished the Star lease and Northbor- ough’s obligations Equiva only commissions under 2. The lease is before us to enable extinguished it Northbor- the Star lease. us to detеrmine if claims, sentence, language sufficiently Date.” find this We law, explicit prove, keys as a matter of that holds two to its claimed release from First, Northborough expressly obligation seizing assumed Alli on the Star lease. com upon phrase arrangement,” “new missions for the agreement, Star lease.3 is defined in the it which points Equiva out that its lease in- Equiva supercede
The did not lease space parties volved more and different lease, extinguish the Star nоr North- lease, making than the Star borough’s Second, arrangement.”4 lease a it “new man’s commissions under it. participate notes that Cushman did not in Finally, we address Northbor- negotiations that culminated ough’s assertion that the Northbor- Equiva lease and thus is not entitled to ough/Equiva agreement, lease which we By focusing broker fees. on this one sen- have called the awas “new (1) tence, however, Northborough ignores arrangement” extinguished Alli agree- the remainder of thе commission ance’s/Northborough’s obligations under ment which clarifies and narrows the “new this, proof points the Star lease. As (2) section, arrangement” ignores one following sentence contained in the practical implication argument. of its brokerage agreement Alliance executed with Cushman: First, arrangement” the “new sentence
If the tenant remains under a new ar- is in a section entitled “Cancellation Claus- rangement, then C & shall es.” But this [Cushman] W record contains no evidence not be entitled ato commission for a to suggest the Star lease was ever period greater orig- than the term of the Paragraph cancelled. 6 states that a lease unless, however, letting inal C & is not W cancelled “unless the tenant vacates participates here; nego- premises.” happen [Cushman] the new That did not tiations. position in the assumed Star’s upon gent being 3. The upon building’s cases relies are dis Alliance оwner Lucas, tinguishable. upon being building’s the United States nor tenant. District Court for the Northern District of recognize 4. We lease contains general assumption Texas concluded that a slightly different terms than the Star obligations specific enough was not to obli specifically space longer additional and a gate the new landlord to the broker’s period. Paragraph time three of Cushman’s Harry commission. B. Lucas Co. v. Grand agreement provides the follow- Warеhouse, 3:01-CV-0938-M, Dallas No. ing: (N.D.Tex. 2002) 2002 WL *5 Jul. *8 (not Here, renewal, designated publication). for Where the ultimate terms of a Northborough specifically space assumed Alliance’s extension or lease of do additional obligation strictly to Cushman’s commissions in to not conform the terms of the Duggan, right option connection with the Star lease. In in the C & W [Cush- or appeals the Dallas court of concluded that the shall not be entitled to a commission man] agreement’s language express any period any space commission or of for for in excess contingent applicable provi- made the broker’s commission on that set forth in the lease however, unless, original owning building. the landlord the sions C & W [Cushman] VEFII, L.P., Duggan Northpark participates negotiations, Central No. the new 05-98-00099-CV, (Tex. added). (emphasis judgment *2 2001 WL The trial court’s 29, 2001, (not App.-Dallas Aug. pet.) desig only no awarded Cushman commissions for the Here, publication). by space period nated for no ex covered Star there is and time the lease; press language agreement space period in the commission no additional or time by Equiva that makes Cushman’s commission contin covered the lease was included. extended, if or even the lease was renewed “Assignment and through the
lease even, in some assigned, was the lease Lease,” premises and the Amendment of cases, cancelled. if lease was fact, argu- In at оral occupied. remained ment, Northborough was un- counsel for result, reject Northborough’s we As the Star Lease was willing say to was not entitled contention that Cushman lease Equiva cancelled. commissions trial court arrangement.” The a “new was Second, if we were to con even no of correctly there was issue concluded somehow can- Equiva that the lease clude was entitled to material fact. Cushman the evidence this celled Star thе end of the Star lease commissions until conclusion that points to the record assignment despite term Star’s by mutual would have been cancellation assignment to Northbor- and Alliance’s parties: representatives agreement of ough. Star, Northborough each for and Conclusion as by which Star
signed the document Equiva, signed the lease conclusion, lack of an despite and land Northborough, the tenant in the termination date express lord, and Restated the “Amended executed and Alliance entered Cushman agreement, agreement According “[i]f to Section commission Lease.” into an enforceable Further, lease. respect ... agreement mutual by cancellation is assumed, and is expressly for a commission paid shall be [Cushman] for, obli- Alliance’s held liable properly lease’s lease term.” The Star entire for commission Cushman’s gation August until years, term ten entire we Finally, the duration of the Star obligation that the have determined short, in the lease reflects nothing lease ex- related to the Star commissions But, lease was cancelled. the Star term. ten-year lease through tended were, supports if this record even by terminated can- have been conclusion that it would Equiva, assignment of the lease Star’s of the tenant mutual celled and Northbor- byor the actions event, In that and landlord. into an Amended they when entered entitled to would have been cоn-We Restated Lease of 2004. through August payments properly denied the trial court clude judg- summary Northborough’s motion result practical that the Finally, we note mo- properly granted ment and rather than Northborough’s argument, Having summary judgment. tion for mili- Northborough’s position, supporting judg- in the trial court’s no error found extension of logical it. The against tates ment, affirm. we that it could argument is Northborough’s extinguish its J., EDELMAN, concurring. lease ignoring the current merely by EDELMAN, Justice, H. RICHARD entering lease—аnd —the concurring. Yet, tenant.5 this one with its into a new *9 License that Cush- Texas Real Estate to ensure Because the contract was written (the “Act”) ground as a provides, if Act even its commissions man would receive assignors; of obligations one of their happened in or the practical purposes, that 5. all For Northborough agreed to as- case, obligations this for both Star lease. agreed sume was the to hon- in interest who are successors license, revoking a real estate a license Anthony C. AGUILAR Susan to specify
holder’s failure a definite termi- Aguilar, Appellants, contract, B. nation in a date contends that the inclusion of such a date in a statutory commission is a MORALES, Maria L. as Executrix of prerequisite recovering brokerage a Concepcion Estate Castaneda commission under Act. Our decision Trujillo, and as Trustee of the Eliza in only specific this case addresses this Trujillo Residuary Trust, Appel rio P. separate contention and does not reach the lees. (not issue by Northborough) asserted whether is unen- No. 08-03-00276-CV. against public policy
forceable as if it does Texas, Appeals Court of not specify such a date. El Paso. addition, preceding revision in 21, April 2005. 1997, 6573a, predecessor article to sec- 1101.652, tion corresponding stated as the 25, Rehearing May Overruled revocation, ground for “failing specify listing contract a definite termination subject prior
date which is not notice.” 1, 1991, R.S., Sept.
Act of Leg., 72nd ch.
553, 1913, 1991 Tex. Gen. repealed Laws 1, 2003,
by R.S., Act of Leg., June 77th ch.
1421, 13, (em- 2001 Tex. Gen. Laws 5020 added). 1997,
phasis language this
expanded to “failing specify listing in a
contract or in another contract in which agrees
the licensee perform services for required
which a license is Act under this
a definite termination date which is not
subject 1, to prior Sept. notice.” Act of
1997, R.S., 839, Leg., 75th ch. 1997 Tex. repealed
Gen. Laws Act of June R.S., 1421, 13, Leg., 77th ch. added).
Tex. Gen. Laws 5020 (emphasis
Therefore, when the Star lease entered, subject it was not to the requirement
termination date because it listing
was not a contract.