James Hansen v. Lonnie Roach and Bemis, Roach & Reed, 03-15-00378-CV

James Hansen v. Lonnie Roach and Bemis, Roach & Reed

03-15-00378-CV

| Tex. App. | Oct 23, 2015

Check Treatment

Case Information

*-670 10/19/15. ^[3524] PM

§ 11.052. Winding Up Procedures — WestlawNext

The “Findings of Fact”

TABLE OF CONTENTS

INDEX OF AUTHORITIES

“'95 l" The Diilrlct Court *-662 DC

BK15169 PG1588

Jackson 1). Urban, Coolidge, Pennington & Scott,

STATUTES AND CODES *-657 Case”). The Underlying Case was a suit by Hansen against a

presented in the aborted appeal of Underlying Case. That

office expense terminated when Hansen voluntarily surrendered

Underlying Case, court must have before it What would have

of Travis County, Tan; *-652 professional association, Austin Neurosurgical and Spine

insured, who was identified as Hansen. The policy had a provision

IDENTITY OF PARTIES AND COUNSEL

Following that injury, Hansen submitted claims for beneﬁts

Northwestern Mutual had steadfastly refused to pay DOE

on December 23, 2010. (Tab B). Being unable to perform surgery,

Filed in The District Court *-648 SUMMARY OF ARGUMENT

Conclusions of Law on December 13, 2013. (Tab L). Roach filed $105,208.70 under §542.060 of the Texas Insurance Code, and *-646 516 S.W.2d 948, 949 (Tex. Civ. App-

Neurosurgical had no member Who was licensed to practice factual standpoint, the “business” continued following Hansen’s

No. 03-15-0037 8-CV

through the date of the original judgment, an amount totaling

ARGUMENT & AUTHORITIES

Westtawluext”

present case those damages are established as a matter of law by

Roach in failing to perfect appeal. See Grider v. Mike O’Brien,

2004); Nicol U. Gonzales, 127 S.W.3d 390, 394 (Tex. App.—Dallas

of Travis courtly, T9Xﬁ5 The DOE Policy contained following definition of “Business” in

%" The Policy Language

A policy of insurance is by its nature a contract of adhesion. *-636 coverage for expenses Hansen incurred after the surrender of

liberally in favor of coverage and against denial or forfeiture of

and when it “ends.” The applicable definition in Merriam *-632 its assets accumulated and distributed. To pay these ongoing

The Defense’s Cases

ends Whenever Hansen ceases to be a licensed physician. It could

JUN ^[1] 2 2015 CASES

Houston [lst Dist.]1974, writ refd n.r.e.)

his medical license. As reﬂected by joint stipulation in that

CODE Chapt. 11

company only if the person is an “authorized person.” Section

this instance includes paying its liabilities and collecting its

TEX.

ORG.

BUS.

as a result of the occurrence of an event requiring Winding up. *-626 19

Whether business “ended” on April 8, 2011. Fact Finding No. 3

surrendered his medical license—by statute Austin Neurosurgical

30, 31, 32, 33 disability insurance company for recovery on a disability office *-624

covered by the policies. However, those results were based on the The “Findings of Fact”

involves a determination of effect of certain policy language in

“end the business” when he surrendered his medical license.

3“ his medical license?

been appellate record in that case.

interest on that sum in this case, and for such other relief to which

§ 11.052. Winding Up Procedures

Institute, P.A. (“Austin Neurosurgical”). Hansen was the only

denied his claim. After it breached the contract, Northwestern

for termination of benefits if insured “ends the operation of the

to Northwestern Mutual under his disability policies—both the

affirmed the denial of DOE Policy benefits to Hansen on that

and there being significant costs associated with maintaining his

Policy benefits from the date of Hansen’s injury based on its

JUN gt: E2015 *-617 Policy benefits, Northwestern Mutual’s breach of the contract

IDENTITY OF PARTIES AND COUNSEL Al

attorney’s fees of $80,000.00 through trial of that case. (Tab 1).

,3 L0

Hansen’s Notice of Appeal on December 19, 2013. (Tab M).

The appeal of the Underlying Suit was dismissed by this

NOTES OF DECISIONS (5) *-613 medicine and no employees to perform surgery.

Vernon's Texas Statutes and Codes Annotated Business Organizations Code Eﬁedive: sepremben, ^[2013] (Appmx. ^[2] pages)

disabling injury because those functions had to be performed—the

M_ *-610 P. C., 260 S.W.3d at 55; Jackson v. Urban, Coolidge, Pennington &

the stipulations and judgment in Underlying Case. It was

APPENDIX

$605,723.31.

The DOE Policy provided that “This policy provides a 2004, no pet.). This Court reviews trial court’s conclusions of

cAUsE No. D-1-GN-14-001213

Veiva L. P ca. District cum ‘ RWWWW‘ I

APPELLANT

Section 16:

Accordingly, a policy of insurance will be strictly construed *-603 his medical license, and this Court Would have reversed the

*=|=$%

benefits. The Court simply cannot adopt a narrow interpretation

Webster Dictionary of transitive verb “close” is “to suspend or *-600 ﬁ:;‘:T::ﬂ°n M app“°aﬁ°" No Subsequent-Act Defense After

expenses is precisely reason Hansen purchased this coverage.

FINDINGS OF FACT - CAUSE No. 13.1 GN 144101213

mean that business ends when Austin Neurosurgical ceases to

Alexander v. Turtur & Associates, Inc.,

Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983)

case, Austin Neurosurgical had ongoing expenses and obligations

L Pm’ D SW‘ M accounts receivable. The business is not “terminated” until it has

301.004 provides that a person is an “authorized person” with

CODE Chapt. 301

Continuation of Business Under Texas Business

BUS.

TEX.

ORG.

The Winding up procedures are established in §11.052.

was required to continue in existence for the period of Winding up.

expense policy. In the Underlying Case, the trial court had 30

in present case has no bearing on the review that this court *-592 the disability office expense policy, and there are no Texas cases

fact that the insureds sold their practices—a fact missing in the In present case, the trial court ﬁled findings of fact and

Rather the “business” continued for that period necessary to

Did trial courts in this case and in the Underlying Case

Vernon's Texas statutes and codes ztnnotated

The Underlying Case was tried nonjury on a stipulated

JAMES HANSEN

member of Austin Neurosurgical. (Tab F Jnt EX. 1, Tab F #3).

he may show himself entitled.

Mutual could no longer insist that Hansen comply with the

business” while totally or partially disabled. Northwestern

loss of income policies and office expense policies. (Tab B; Tab

position that Hansen had “ended his business” on date of his

medical license, Hansen voluntarily surrendered his medical

relieved him of that obligation.

basis. *-584 The District Clerk’s ﬁle in underlying case contains two

TABLE OF CONTENTS JAMES HANSEN

Breach of Contract

Court because Roach negligently missed a jurisdictional appellate

Subsequently this Court noted that notice of appeal did 146 S.W.3d 113 (Tex. 2004)

IN THE DISTRICT COURT

38 That argument overlooks the fact that “the business” debts had to be paid and accounts had to be collected. Simply

Organizations Code

BusinessO1'ganiz.at1onsOode(RefS 8: Annos)

17 §

An additional basis that Underlying Case would have

3.2 MONTHLY BENEFIT FOR DISABILITY

stipulated that there was $600,000.00 in available coverage under

Standard of Review

Scott, 516 S.W.2d 948, 949 (Tex. Civ. App.——-Houston [lst Dist]

Banmmcy

JAMES HANSEN

law ole novo. State v. The Evangelical Lutheran Good Samaritan

1. The Court adopts parties’ Joint Stipulation of Facts and all documents attached to the

IN THE DISTRICT COURT

Except as provided in sections 8.3 and 8.9, the word monthly benefit for Covered Overhead Expense when Insured *-572 against the insurer and in favor of the insured, and any James Hansen

judgment of trial court in that case if the appeal had been

or application of terms that would limit or forfeit coverage—

Title 1. General Provisions (Refs & Annos)

stop operations.” The applicable definition of the transitive The trial court in the Underlying Case found in its sole

be an existing entity. Any one of these could be a reasonable

that exceeded monthly maximum benefit for the entire period

Kelly-Coppedge, Inc. v. Highlands Ins. Co.,

Beneﬁt Termination or Adjustment If the insured ends operation of the

CODE Chapt. 302

BUS.

ORG.

completed the process of winding up and has ﬁled a certificate of TEX.

(a) Except as provided by the title of this code

respect to a professional association if person is a “professional

As part of winding up process, Austin Neurosurgical had to

granted Hansen a judgment for part of benefits but had denied 30

must perform.

on point in making that determination.

present case. Hansen did not sell his practice—he did exactly §

conclusions of law. (CR 15-17). In Finding of Fact No. 3 the court commit error as a matter of law when the courts held that the

record. The plaintiff introduced as an exhibit in trial court in

Accordingly, oral

gather its assets and discharge its liabilities, both as a matter of

“business” means the Insured’s business or the

KIDD LAW FIRM

Final Iudgment

Chapter 11. Winding up and Termination of Domestic Entity

To protect himself and his family in event he became

contract. When one party to a contract commits a material breach

Mutual acknowledged that Hansen’s accident rendered him totally

F Jnt EX 1). After elimination period, Northwestern Mutual

license on April 8, 2011, While the case against Northwestern

However, to hedge its bet, Northwestern Mutual

Accordingly, if this Court had been able to hear and decide

CONCLUSION

injury.

INDEX OF AUTHORITIES

Final Judgments. (Tab H; Tab I). The language of the two business while totally or partially disabled, beneﬁts for Covered Overhead

not appear to be timely and requested Roach to explain. Roach Appendix Supporting Joint Stipulation of Facts, ﬁled on June 10, 2011 in the Underlyitig

Andrews v. Key, 77 Tex. 35, 13 S.W. 640, 641 (1890)

deadline. Roach and Firm do not dispute that this failure on

because Hansen could no longer perform surgery did not mean

continued to pay its obligations and collect its assets, and it 980 S.W.2d 462, 464 (Fex. 1998)

Northwestern Mutual argued at the trial of the Underlying §

governing domestic entity, on the occurrence of an

the DOE Policy and that the maximum monthly benefit of

been reversed on appeal is that Northwestern Mutual breached

[77]

Plaintiff,

In a legal malpractice suit plaintiff must show that (1)

Society, 981 S.W.2d 509, 511 (Tex. App.—Austin 1998, no pet.);

1974, writ ref’d n.r.e.). While proximate cause is normally a

Subchapter B, Winding up of Domestic Entity

§ *-542 is totally or partially disabled.... “Covered Overhead Expense” Insured’s professional practice at the time disability

APPELLANT’S COUNSEL

819 West 11”‘ Street

[1] *-540 reasonable interpretation of a policy provision must be indulged in Expenses and Waiver of Premium will end.

[*]

properly perfected.

Plaintiff,

the court must interpret the provisions to recognize coverage if

verb “close” in Oxford Dictionary is “cease to be in operation or *-537 I

finding of fact that “Plaintiff closed his business on date he

interpretation of that term. However, a court must resolve this

of coverage. (Tab F Jnt. Ex. 1). Austin Neurosurgical had a five-

98th JUDICIAL DISTRICT

CODE §11.001

TEX.

BUS.

ORG.

individual,” which is defined by §301.003 to be an individual who

event requiring Winding up of a domestic entity, unless

termination under §11.101 of the Business Organizations Code.

pay its debts and gather its assets. As shown by evidentiary

The determinative issue is a question of law—When does *-529 recover for a majority of the benefits payable. Hansen desired to ‘

argument will assist in probing the issues related to the

what Business Organizations Code requires and went through *-528 found as follows:

law and as a matter of stipulated fact. present case the stipulations and exhibits from the trial of the

coverage for disability ofﬁce expense terminated when Hansen

Case.

98th JUDICIAL DISTRICT

Austin, TX 78701

disabled in any Way, Hansen purchased several disability

starts.

of the contract, the other party is excused from any further

began paying the disability income benefit, and that policy was

disabled within the terms of the policy, qualifying Hansen for

Mutual was pending. (Tab F Jnt Ex 1; Tab F # 6). CONCLUSION

Findings of Fact and Conclusions of Law

attempted to also argue an alternative date for termination of the

PRAYER

V. appeal of the Underlying Case, this Court would have reversed

CAPTION

judgments is identical, but one judgment reﬂects a signing date of *-520 Roach’s part was negligence—they have admitted that it was

did not respond to this Court’s inquiry.

Barnett v. Aetna Life Insurance Co.,

Mead v. Johnson Group, Inc., 615 S.W.2d 685,

that Hansen “ended the business” when business had ongoing

Effective: September 1, ^[2013] *-517 ignores the fact that under the Texas Business Organizations Case that the business necessarily ended when Hansen

the event requiring Winding up is revoked under

2. Plaintiffs entitlement to monthly beneﬁts ended on April 8, 201 l, date he closed contract of insurance when it failed to pay Hansen the beneﬁts

$25,000.00 would be exceeded for each month benefits were attorney owed a duty to the plaintiff, (2) the attorney breached

Heritage Resources, Inc. v. Hill, 104 S.W.3d 612 (Tex. App.—Fort

question of fact in any trial of a negligence action, appellate courts

Was defined by policy as:

*-508 512-330-1709 (fax) favor of insured and coverage. Gulf Insurance Company v. ^[1]

Scott R. Kidd

reasonably possible to do so.

accessible to public.” Austin Neurosurgical may have closed *-504 surrendered his medical license, April 8, 2011.” (Tab L). That is

The parties have stipulated to the failure of Defendants to timely perfect an appeal in in

723 S.W.2d 663, 666 (Tex. 1987)

dispute by adopting interpretation advanced by the insured,

689 (Tex. 1981)

year sublease from Spine Center, Inc., commencing on February 1,

CODE §11.051

TEX.

BUS.

ORG.

V.T.C.A., Business Organizaﬁons Code § 11.052 Austin Neurosurgical “end” under the policy of insurance? The §

is licensed to provide in this state or another jurisdiction same

Section 802.013 of the Code requires that the certificate of Section 11.151 or cancelled under Section 11.152, the

LONNIE ROACH, AND LAW

record in Underlying Case, those debts were ongoing in an

appeal that judgment denying beneﬁts, but Roach and Firm 31

Underlying Case and the ultimate decision in this appeal. winding up process by collecting and disposing of the assets of

The court further ﬁnds that District Judge

surrendered his medical license since the court in the Underlying

Underlying Case, along with relevant pleadings, orders, and

The court must perform a de novo interpretation of those

insurance policies. (Tab F Jnt EX 1). He purchased two basic

obligation to perform. Mead v. Johnson Goup, Inc., 615 S.W.2d

benefits under the DOE Policy. However, since the accident

LONNIE ROACH, AND LAW State Bar No. 11385500

not an issue in the Underlying case, nor is it at issue in the

The Underlying Case was tried on stipulated facts to the

business.

business at trial——and that was the date Hansen surrendered his

This Court would have reversed the judgment in the

the trial court and rendered judgment for Hansen for the full

STATEMENT OF THE CASE

CERTIFICATE OF COMPLIANCE WITH TRAP

October 18, 2013, and the other reﬂects a signature date of *-488 LAW OFFICES OF BEMIS, ROACH §

This Court then dismissed appeal for lack of jurisdiction.

TEX. BUS. ORG. CODE §11.052

negligence. (Tab P). The issue before this Court is whether that

Code business continued in existence for the period of Winding debts to pay, records to maintain, and accounts to collect. The

surrendered his medical license since a professional association

owner, members, managerial officials, or other persons

to which he was entitled following his injury. After breaching the

payable. The judgment awarded $201,827.96 in beneﬁts, leaving

Worth 2003, no pet.). An appellate review of a trial courts legal

LONNIE ROACH and that duty, (3) the breach proximately caused the plaintiffs determine questions of law. Since proximate cause issue in an

LAW OFFICES OF BEMIS, ROACH §

Suzanne Covington did not abuse her discretion in i

§ 11.052. Winding Up Procedures

Underlying Case.

...the total of monthly expenses that are normal and *-477 Parker Products, Inc., 498 S.W.2d 676, 679 (Tex. 1973); Western /s/Scott R. Kidd

512-330-1713

& REED

Interpretation of Policy Language

The “Insured’s business” at time disability started was

when it suspended provision of surgical services to the public, RULE 9.4(i)(3)

not the same as a determination as to when “the insured ends the

even if interpretation advanced by the carrier seems a more

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)

2010, and expiring on July 31, 2015. (Tab F #5). Austin

Milhouse U. Weisenthal, 775 S.W.2d 626 (Tex. 1989)

CODE §11.052

BUS. TEX.

& REED

ORG.

termination filed in accordance with Chapter 11 must be executed

specified in the title of this code governing the domestic

3. Collection of accounts receivable did not constitute the “continuing operation of the amount for a period in excess of maximum available coverage

professional services as is rendered by that professional entity.

19 facts surrounding Hansen’s injury, disability, and surrender of his *-466 did not timely perfect appeal.

32 business and paying the liabilities of the business. In none of

finding that “Plaintiff closed his business on the date

Case held that insurance carrier had previously breached the

filed documents that would have constituted the appellate record

The Defense’; Cases

provisions to determine if Hansen would have been successful in

BEMIS, ROACH & REED customary in continuing operation of the Insured’s *-462 685, 689 (Tex. 1981). What Northwestern Mutual was essentially Scott R. Kidd

types of p0licies—policies covering loss of his personal income

rendered Hansen unable to perform neurosurgery, Northwestern

present case. (Tab F Jnt Ex 1). However, Northwestern Mutual

scott@kidd1awaustin.com

court without a jury. (Tab 1). Under stipulated evidence in

medical license.

Underlying Case if Roach and the Firm had properly perfected the

amount of unpaid beneﬁts plus penalty interest. Therefore,

STATEMENT REGARDING ORAL ARGUMENT

October 21, 2013. The October 18 judgment reﬂects that it was *-456 Currentncss

This Court noted that notice of appeal was due to be ﬁled on or

admittedly negligent act proximately caused Hansen harm. There

The Court further ﬁnds that District Judge Suzanne Covington did not abuse her discretion *-454 up, as a matter of law. The surrender of Hansen’s medical license undisputed facts in Underlying Case were that the business

can only have licensed professionals as members, and Hansen had

entity shall, as soon as reasonably practicable, wind up

contract, Northwestern Mutual could not rely upon a subsequent

injuries, and (4) damages occurred. Alexander U. Turtur & Defendants.

$398,172.04 as unpaid beneﬁts under policy, to which benefits

TRAVIS COUNTY, TEXAS

appellate malpractice case is whether the party would have been

he surrendered his medical license, April 8, 2011,” as

conclusions is not under an abuse of discretion standard, since a

§ business as properly reported for federal income tax *-446 State Bar No. 11385500

Indemnity Company U. Murray, 208 S.W. 696, 698 (Tex. Comm. The policy language on which Northwestern Mutual relied

Scott V. Kidd

lnsured’s business" Within plain meaning of the applicable provisions of the insurancla

Austin Neurosurgical. The court in the Underlying Case found

TRAVIS COUNTY, TEXAS

but DOE Policy only provides for the termination of benefits if Defendants.

CERTIFICATE OF SERVICE

operation of the business...” under the policy. While the trial

reasonable interpretation. Continental Casualty Co. v. Warren,

Continental Casualty Co. v. Warren,

Neurosurgical leased 1607 square feet on a “triple net” lease

Nicol v. Gonzales, 127 S.W.3d 390, 394

CODE §11.101

BUS.

TEX.

ORG. business and affairs of the domestic entity. The

Under these provisions, when Hansen voluntarily

under DOE Policy. As a matter of law, Austin Neurosurgical

by an officer of the professional association on behalf of the

This present case was ﬁled by Hansen against Roach and the 33

ISSUES PRESENTED medical license were undisputed—in fact, stipulated. The fact *-433 the cases cited by Roach i.n the court below did the insured go referenced in December 13, 2013 Findings of Fact

contract of insurance‘?

in the Underlying Case. Those documents, along with this Court’s

In trial court, Roach tried to avoid the conclusion that

the appeal of the Underlying Case, had such appeal been properly

ﬁnding that “Plaintiff closed his business on the date he surrendered his medical license,

(a) Except as provided by title of this code governing the domestic entity. on the

(FIT) purposes...

and policies to cover his liability for ongoing office expenses in the

512-330-1713

arguing was that Hansen had to maintain his medical license

State Bar No 24065556

Mutual took position that Hansen had “ended the business”

denied benefits with regard to the disability office expense

that case, insurance coverage was established, along with the

FINAL JUDGMENT

Following trial on the merits in the Underlying Case, the

appeal in that case. As a matter of law and stipulated facts, trial court in the present case erred in holding that Roach’s

ISSUES PRESENTED

filed by clerk on October 25; the October 21 judgment reﬂects before November 20, 2013, but was not filed until December 19,

is no doubt that it did. The determination of this proximate cause

254 S.W.2d 762, 763 (Tex. 1953) *-423 might be an event triggering winding up of the professional (Tex. App.—Dal1as 2004, no pet.)

continued in actual fact.

been only member of Austin Neurosurgical. This argument,

23, 28

occurrence of an event requiring winding up of a domestic entity, unless the event requiring

act by Hansen as a defense to its liability on contract.

policy between Northwestem Mutual Life Insurance Company and Plaintiff.

domestic entity shall:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Hansen was entitled under the stipulations in the event the

Associates, Inc., 146 S.W.3d 113 (Tex. 2004); Grider v. Mike

successful on appeal, the proximate cause question in an appellate

of District Judge Suzanne Covington in the Underlying

trial court has no discretion in determining or applying law.

App. 1919). The rule favoring interpretation in favor of the

was that “the insured ends operation of the business While

512-542-9895

scott@kiddlawaustin.com

that Hansen “closed his business on the date he surrendered his “insured ends” the business. The Merriam Webster Dictionary

court’s factual determination i_n that regard may be entitled to

winding up is revoked under Section 11.151 or canceled under Section 11.152, the owners,

254 S.W.2d 762, 763 (Tex. 1953); Insurance Company of North

April 8, 201 1," as referenced in December 13, 2013 Findings of Fact of District Judge

APPELLANT’S BRIEF

beginning at rate of $12.00 per rentable square foot, with the

CODE §301.003

TEX.

BUS.

ORG.

On May 27, 2015, Court held the ﬁnal trial in the above entitled and numbered cause.

relinquished his medical license, he ceased to be an authorized

(1) cease to carry on its business, except to the

did not “terminate” (end) until process of winding up had been

association.

Firm for the negligence in not perfecting the appeal. (CR 3-8). *-403 finding in the Underlying Case that Hansen “closed” the business Whether failure by Roach to timely perfect the appeal in 31

through a statutory winding up, and none of those cases even *-401 memorandum opinion and judgment dismissing the Underlying

In the Underlying Case, did the disability office expense Case. *-400 There was no question in the Underlying Case that Hansen was business continued incurring Covered Overhead Expenses by 6.

during entire period of coverage in order to receive the DOE

event of his disability. (Tab F Jnt Ex 1). The policies he purchased

members, managerial ofﬁcials, or other persons speciﬁed in title of this code governing perfected.

Scott V. Kidd

and therefore Hansen’s rights to beneﬁts had terminated under

policies. (Tab B; Tab D; Tab F #s 1, 2). There were two disability

svk@kidd1aWaustin.com

4. A timely ﬁled appeal would not have changed the outcome in the Underlying Case.

“termination of benefits” provision of DOE Policy. The gross

Hansen did not “end the business” of Austin Neurosurgical when

trial court held for Hansen as to qualification for benefits at

On May 27, 2015, the Court held the ﬁnal trial in the above entitled and numbered cause. THE RECORD

admitted negligence in failing to timely perfect appeal was not

a filing date of October 28. There is no explanation in file for *-393 2013. (Tab N; Tab 0). While a timely ﬁled request for findings of

Cooke County Appraisal District v. Teel,

issue is a legal question, not a factual determination. It requires

association, but it was certainly not a complete “end” of the Hansen did not “end the business” when he surrendered his

Paul Revere Life Insurance Company v. Klock,

however, overlooks the applicable provisions of Texas Business

extent necessary to wind up its business;

benefits were not terminated by Hansen’s surrender of his medical domestic entity shall, as soon as reasonably practicable, wind up the business and Accordingly, the trial court in the Underlying Case erred in

0’Brien, P. C., 260 S.W.3d 49 ( Tex. App.—Houston [lst Dist] 2008, *-386 malpractice case should logically be a question of law and not a

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992). The interpretation

KIDD LAW FIRM

Suzanne Covington in Underlying Case.

State Bar No. 24065556 *-382 insured and coverage is even more applicable when interpreting *-381 totally or partially disabled... This is language purporting to

definition of verb “end” is “to bring to an end.” The Oxford medical license, April 8, 2011.” Hansen had not been able to

Plaintiff appeared in person and through his attorney, Scott Russell Kidd, and announced ready.

some deference, it simply does not resolve issue of termination

America v. Cash, 475 S.W.2d 912 (Tex. 1972). The court must

129 S.W.8d 724 (Tex. App.—Ft. Worth 2004, no pet.) 36

affairs of domestic entity. The domestic entity shall:

169 So.2d 493 (Fla. Ct. App. 1964)

rental rate escalating over time to $14.00 per rentable square foot.

CODE §301.004

When Hansen Voluntarily relinquished his medical license,

TEX.

ORG.

BUS.

person, requiring him to relinquish his ownership interest in

if the domestic entity is not a general

completed and the certificate of termination filed. That had not

This case was tried to court without a jury. (CR 11). The trial *-371 may be evidentiary of the issue of when the business “ended”, but Accordingly, Defendants’ failure to timey appeal did not proximately cause loss or harm to

Plaintiff appeared in person and through his attorney, Scott Russell Kidd, and announced ready. Underlying Case proximately caused loss or harm to Hansen.

address that issue. Those cases are simply inapplicable to the (2)

Case for Want of jurisdiction and the defendant’s admissions in

This is not properly a finding of fact, and it is not relevant

policy provide benefits for office overhead during the period of the

citing three distinguishable cases—Wilson v. Monarch Life

totally disabled within the contemplation of the policy. The *-367 were all issued by The Northwestern Mutual Life Insurance

512-542-9895

Policy benefits, even though Hansen was physically incapable of

819 West 11th Street policy. (Tab D). In other words, according to Northwestern

office expense policies, each containing the same policy language. time of his injury, and that Hansen did not “end the business”

amount of coverage was established under the DOE Policy

he surrendered his medical license.

a proximate cause of Hansen’s loss of the amount of that

STATEMENT OF FACTS

By statute Austin existence of the two judgments.

fact and conclusions of law will extend the time for filing the Court to decide if Hansen would have been successful on the

business. As a matter of law business continued for the period

medical license. Northwestern Mutual’s argument was that “the

(1) cease to carry on its business. except to extent necessary to wind up its

Organizations Code. Professional associations are specifically

partnership, send a written notice of the

holding that Hansen was not entitled to recover the full coverage

Defendants appeared through their attorney, John R. Shepperd, and announced ready. The

license. (Tab F; Tab 1). That sum, plus applicable penalty

pet. den.). Defendants admitted that Roach was Hansen’s

question of fact. The Supreme Court of Texas faced that issue in

of an unambiguous contract is a question of law. Coker v. Coker,

Austin, TX 78701

svk@kidd1awaustin.com policy exceptions and limitations of coverage. Barnett v. Aetna limit or terminate beneﬁts payable under the policy, and

Dictionary deﬁnes the verb “end” as “come or bring to a final CONCLUSIONS or LAW

render neurosurgical medical care since June 5, 2010, the date he

Defendants appeared through their attorney, John R. Shepperd, and announced ready.

business;

of coverage. That is a question of law. A business can close but

Plaintiff.

El Chico Corp. v. Poole, 732 S.W.2d 306,

adopt the broadest interpretation resulting in coverage and

Principal Mutual Life Insurance Company v. Toranto,

[1]

Austin Neurosurgical also had a $758,313.51 promissory note

CODE §301.007

TEX.

BUS.

ORG.

Austin Neurosurgical. But since Hansen was only member of

winding up to each known claimant against

that became an event requiring the winding up of Austin

occurred at time Hansen voluntarily surrendered his medical

court granted a take nothing judgment for Roach and Firm Whether this Court would have reversed the trial court’s 30

closing the business and ending the business are, or can be, *-339 case now before Court.

whether or not Judge Covington abused her discretion in finding

this case, were introduced as Plaintiﬂ’ s Exhibit 1. In this brief the

statutory winding up of Hansen’s business?

Insurance Company, 971 F.2d 312 (9th Cir. 1992); Paul Revere Life

parties to that case stipulated that he was totally disabled for all *-336 Rules of Construction

Company (“Northwestern Mutual”). (Tab F J nt Ex 1; Tab F #s 1,

Mutual’s paradoxical position, the same accident that qualified

512-330-1709 (fax)

performing surgery. But Hansen had to pay ongoing office

(Tab F #s 1, 2). The trial court in Underlying Case treated the

($600,000.00), along with the maximum monthly benefit of

on the date of his injury, although he could not perform surgery *-332 SUMMARY OF ARGUMENT

parties did not request a jury and all questions of fact and law were submitted to the Court for

Neurosurgical continued for required period of winding up,

Comes now Appellant James Hansen (“Hansen”) and *-331 Hansen desired to appeal the denial of the DOE Policy judgment.

notice of appeal, request for ﬁndings and conclusions filed by

appeal of the Underlying Case if the appeal of that case had been

(2) if domestic entity is not a general partnership, send a written notice of the winding

313-314(Tex. 1987)

business” was Austin Neurosurgical, a professional association. A

1997 WI. 279751 (N.D. Tex. 1997) of winding up, which is the period necessary to gather and 13

governed by Chapters 301 and 302 of the Business Organizations

of DOE beneﬁts. If the appeal of the Underlying Case had

37 domestic entity;

interest, are damages in the present case, and are established

attorney in Underlying Case, so as a matter of law Roach owed The following provisions of the insurance policy between Northwestern Mutual Life

The parties did not request a jury and all questions of fact and law were submitted to the Milhouse v. Weisenthal, 775 S.W.2d 626 (Tex. 1989) and held that

650 S.W.2d 391, 393 (Tex. 1983). Therefore, this Court must

Certificate of Compliance with TRAP 9.4(i)(3) *-319 Life Insurance Co., 723 S.W.2d 663, 666 (Tex. 1987). The Court *-318 therefore, applying the settled rules of construction discussed

up to each known claimant against the domestic entity;

suffered his disabling injury. The mere relinquishment of his

point, finish.” In order for Hansen to end business of Austin *-314 still have a continuing existence for certain purposes.

against denial of coverage. Gulf Insurance Co. v. Parker Products,

payable to Hansen dated May 19, 2010, calling for bi-Weekly

CODE §301.008

SIGNED this 23rd day of June 2015.

TEX.

BUS.

ORG.

Neurosurgical because it no longer had an authorized person as a

Austin Neurosurgical, that was an event requiring a winding up of

collect and sell its property to the extent the *-309 and filed findings of fact and conclusions of law. (CR 11, 15-17). license, and could not occur until the last lease payment was made

detennination. The parties further stipulated to record and exhibits for trial. Having

judgment in the Underlying Case if Roach had timely perfected

different things. The sole fact ﬁnding by trial court in the *-307 (3)

documents in Plaintiffs Exhibit 1 will be referenced by the

as a fact that plaintiff closed his business on that date. To begin

Insurance Company v. Klock, 169 So.2d 493 (Fla. Ct. App. 1964);

This Court must begin with the rules of construction to of relevant time period.

APPELLEES

Hansen for beneﬁts terminated his right to beneﬁts.

overhead expenses without the benefits that Northwestern

2).

policies as one for purposes of that case. Hansen will also

from that date forward. (Tab I; Tab L). However, the trial judge in

$25,000.00 being payable in the event of liability on the part of

ARGUMENT & AUTHORITIES

and the stipulations in Underlying Case establish that the

(3) collect and sell its property to extent the property is not to be distributed in kind to

FFE Transportation Services, Inc. v. Flugham,

benefits after he surrendered his medical license. In furtherance Roach was not timely, and the notice of appeal filed by Roach was

Court for determination. The parties further stipulated to record and exhibits for trial. The

Insurance Company and Plaintiff are applicable:

timely and properly perfected by Roach.

State v. The Evangelical Lutheran Good Samaritan

17 *-296 liquidate assets and pay the debts and liabilities of the entity.

Code. A professional association is an entity that must file under

professional association can only have licensed professionals as

files this Appellant’s Brief.

property is not to be distributed in kind to

been properly perfected by Roach, this Court would have reversed

as a matter of law under record in the Underlying Case.

Hansen the duty to exercise that degree of care, skill, and make a de novo determination of Whether Roach’s negligence was

in an appellate legal malpractice case, proximate cause is a

the domestic entity's owners or members; and

must adopt construction of an exclusionary clause urged by *-288 This brief contains a total of 6863 words excluding parts

above, that provision must be interpreted in favor of providing

medical license essentially changed nothing with regard to his

considered the pleadings, evidence presented, argument of counsel, and applicable law, the Court

Neurosurgical, he must bring it to a ﬁnal point—bring it to an The term “ends the business” is not defined in policy and

498 S.W.2d 676, 679 (Tex. 1978). Applying those rules of

154 S.W.3d 84 (Tex. 2004)

Society, 981 S.W.2d 509, 511 (Tex. App.—

payments of $23,000.00 until paid in full. (Tab F #9). Austin

CODE §302.013

TEX.

BUS.

ORG.

member. At that point, Austin Neurosurgical was required to

the domestic entity’s owners or members, entity since it had no authorized person as an owner. Chapter

Hansen duly and timely perfected this appeal. (CR 13)

in July 2015. As a matter of law, the business did not end but

33 appeal in the Underlying Case. *-276 Underlying case is therefore immaterial to the ultimate legal THE RECORD

apply in the interpretation of an insurance policy. An insurance

appropriate tab in that exhibit (“Tab___”) and the evidence in

with, a determination of Whether the trial court abused its The defense to Hansen’s claim for beneﬁts under DOE

parties did not present any additional testimony or evidence at trial. The sole question before

and Principal Mutual Life Insurance Company v. Toranto, 1997

On June 5, 2010, Hansen suffered a disabling injury. While

exempted under TRAP 9.4(i)(1), as verified by Microsoft Word for

Mutual had promised and contracted to provide to him to meet

Northwestern Mutual denied beneﬁts under the DOE Policy,

Lonnie Roach

treat those two policies as one for purposes of this brief, and

(4) perform any other act required to wind up its business and affairs.

Northwestern Mutual. The parties stipulated that if benefits were Underlying Case held that Hansen “closed the business” on

PRAYER

winding up process actually did occur following Hansen’s

of that appeal, on November 14, 2013, Roach filed a Request for therefore late. Due to late ﬁling of the notice of appeal, this

Standard of Review

It was admitted and undisputed in Underlying Case that

members, and when it has no licensed professionals as members,

17 This is exactly what was happening following Hansen’s surrender Austin 1998, no pet.) *-264 SECTION 1. GENERAL TERMS AND DEFINITIONS. Business Organizations Code, and therefore the provisions of

and

PRESIDING

the trial court’s judgment in that case and would have rendered

The only remaining element to establish in present legal

concludes that judgment should be granted for Defendants.

? diligence that would be exercised by a lawyer of ordinary skill and No Subsequent-Act Defense After Breach of Contract

question of law for court.

a proximate cause of loss to Hansen, including a de novo

Mac. This brief is therefore in compliance with TRAP 9.4(i)(2)(B).

Bemis, Roach & Reed

the insured as long as that construction is not by itself *-256 coverage as long as that construction is not itself unreasonable.

ability to render professional services other than to mean that he

end. However, as long as it must pay its debts, owns assets, and

(la) During winding up process, the domestic entity may prosecute or defend a civil,

can be interpreted in more than one way. It could mean that the

Grider U. Mike 0’Brien, P. C., 260 S.W.3d 49

this Court was whether Defendants’ failure to timely perfect the appeal of the in the underlying

This policy provides a monthly beneﬁt for Covered Overhead Expenses when the

interpretation, trial courts in the Underlying Case and in the

Neurosurgical also had ongoing employee costs. All of these costs

STATEMENT OF THE CASE

11 of Business Organizations Code covers What happens when (4) perform any other act to Wind up its

cease its regular course of business (providing neurosurgical

Did Hansen “end the business” when he surrendered his

continued for the statutorily required period of winding up.

determination. As an immaterial fact finding, it should be

WL 279751 (N.D. Tex 1997). In those cases, the insured was

discretion is a question of law. Jackson 12. Van Winkle, 660 S.W.2d

The record on appeal consists of the Clerk’s Record and the

that Underlying Case will be referenced as Tab F #

Policy advanced by Northwestern Mutual was that the Beneﬁt policy is a contract, and Court interprets insurance contracts

will refer to them as “DOE Policy.” The two DOE policies

riding his mountain bicycle on an ofﬁroad path, his head contacted

criminal, or administrative action.

those same obligations.

never voluntarily paid Hansen any beneﬁts under DOE Policy,

After breaching the contract,

April 8, 2011, when Hansen voluntarily surrendered his medical

not terminated under the policy, Hansen’s covered overhead

Insured is totally or partially disabled.

Wherefore, Hansen prays that the court reverse the

surrender of this medical license. Both factually and legally, the

Accordingly, it is ORDERED, ADJUDGED AND DECREED that Plaintiff, James Hansen, *-237 Findings of Fact and Conclusions of Law on Hansen’s behalf. (Tab The Policy Language

Hansen had ongoing office expenses and costs in excess of

court lacked jurisdiction and dismissed the appeal. Due to the

(Tex. App.—Houston [1S‘ Dist.] 2008, pet. den.)

Texas Farmers Insurance Company v. Murphy,

it cannot continue to exist. Under Northwestern Mutual’s

of his medical license. As a matter of both law and undisputed *-232 17, 19

Chapter 11 are also applicable to it.

business and affairs.

judgment that Hansen recover beneﬁts that had been denied

malpractice case is proximate cause. Typically, proximate cause is

knowledge under the same or similar circumstances. The

The fact that Hansen voluntarily surrendered his medical This court is therefore reviewing a legal decision by the trial

determination of meaning of the contract of insurance. The

case, Cause No. D-1-GN-10-004459 in 200"‘ Judicial District Court, styled James Hansen,

APPELLEES’ COUNSEL

The use of the phrase “the insured ends the operation of the

/s/Scott R. Kidd unreasonable, even if the construction urged by the insurer *-223 could no longer even do so legally from that time, even though he

Credits

has accounts it is collecting, it has not ended. While Hansen may *-220 business ends whenever Hansen no longer performs surgery. It

present case incorrectly held that Hansen “ended the business” on

996 S.W.2d 873, 879 (Tex. 1999)

and expenses continued past time that Hansen surrendered

##1##

This is a legal malpractice case filed by Hansen against

services) and begin the winding up process. Of course, Austin (b) During the Winding up process, the domestic

an event requiring Winding up of an entity occurs. Under

STATEMENT REGARDING ORAL ARGUMENT

Therefore, trial court in the Underlying Case erred in denying

disregarded. Andrews v. Key, 77 Tex. 35, 13 S.W. 640, 641 (1890);

medical license or did the business continue for the period of

take nothing by this suit. It is further ORDERED, ADIUDGED, AND DECREED that this

807, 810 (Tex. 1983). Finding of Fact No. 3 Would more properly

Reporter’s Record. In this brief the Clerk’s Record will be

Ads 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006. Amended by Acts 2013. 83rd Leg., ch.

denied benefits under office overhead expense policies speciﬁc to

Termination provision of policy applied and ended Hansen’s *-211 according to the general rules of contract construction. Texas

a tree limb, resulting in a cervical nerve injury. (Tab F Jnt Ex 1).

Northwestern Mutual could not rely on Hansen’s post-breach

and took the position at trial of the Underlying Case that

combined provided a beneﬁt up to $25,000.00 per month, with a

license. (Tab L). The trial court awarded Hansen DOE Policy

expenses would exceed maximum benefit of $25,000.00 per

judgment of trial court and render judgment for Hansen for

professional association continued in existence to collect its assets

J). The trial court did not file ﬁndings and conclusion within ::

Rules of Construction

$25,000.00 per month. (Tab F) Hansen had an ongoing lease

negligent failure of Roach, Hansen could not present his appeal to

Gulf Insurance Company 11. Parker Products,

M.D. v. The Northwestern Mumal_ Life Insurance Company (the “Underlying Case”l),

22 fact, Hansen did not end the business” when he voluntarily argument, when Hansen surrendered his medical license on April

Under §301.008 of the Business Organizations Code, an

9 (5.3 347), § 3, eff. Sept. 1, 2013.

entity may prosecute or defend a civil, criminal, or

in trial court. Roach’s error in failing to timely perfect the

a fact issue in any case based on a claim of negligence. El Chico

license in face of Northwestern Mutual’s wrongful denial of defendants have acknowledged that Roach breached that duty by *-197 court, as opposed to reviewing a factual determination of the trial

trial courts’ determinations in that regard by courts in this

John Shepperd

appears to be more reasonable or a more accurate reﬂection of the Certiﬁcate of Service

business” would imply an afﬁrmative act by insured that not

had not and could not provide such services prior to that time.

have “closed” Austin Neurosurgical since it suspended the 1.6 BUSINESS

judgment disposes of all issues and parties and is an appealable ﬁnal judgment. All relief not

could mean that business ends Whenever Hansen stops having

April 8, 201 1.

498 S.W.2d 676, 679 (Tex. 1973)

Walker 11. Packer, 827 S.W.2d 833 (Tex. 1992)

his medical license. There were accounts receivable to collect, and

Lonnie Roach (“Roach”) and ﬁrm of Bemis, Roach & Reed (“the

23, 28

Neurosurgical ceased providing neurosurgical services when

DOE Policy beneﬁts after Hansen relinquished his medical

§11.051, Austin Neurosurgical was required to Wind up its

referenced as “CR” and Reporter’s Record Will be referenced as

administrative action. *-183 Oral argument would be of beneﬁt to court in deciding Cooke County Tax Appraisal District v. Teel, 129 S.W.3d 724 (Tex. Winding up as a matter of law.

STATEMENT OF FACTS

Editors‘ Notes

be a conclusion of law, not a ﬁnding of fact. As noted above,

those cases. However, in each of those cases, denial was based

Farmers Insurance Company U. Murphy, 996 S.W.2d 873, 879

right to benefits. That provision is as follows:

Except as provided in Sections 8.3 and 8.9, word “business” means the

proximately caused loss or harm to Plaintiff.

That cervical nerve injury essentially destroyed the fine motor

conduct as a “fall-back” defense when its complete denial of

maximum total benefit of $600,000.00. (Tab F Jnt Ex 1; Tab F #s

Hansen was not entitled to any beneﬁts.

State Bar No. 18236050

month for each month beneﬁts were payable. (Tab F Jnt Ex 1).

benefits from time of injury until the surrender of Hansen’s

and discharge its liabilities.

the full amount of his damages, which would constitute the

twenty days of the request, so Roach properly filed a Notice of *-173 this Court, and Hansen then ﬁled suit against Roach to recover

obligation that he had to pay, he had debt associated with the

Interpretation of Policy Language

24 *-171 surrendered his medical license because business continued 8, 2011, Austin Neurosurgical terminated since it no longer had

owner of a professional association who ceases to be an

appeal was therefore the proximate cause of Hansen’s loss of

Corp. v. Poole, 732 S.W.2d 306, 313-314 (Tex. 1987). However, the Insured’s business or the Insured’s professional practice at time the disability

being negligent in failing to timely perfect the appeal in the *-166 benefits could not be a defense for Northwestern Mutual in the case and the Underlying Case are not entitled to any deference.

court. Legal conclusions of trial court are always reviewable

expressly granted herein is denied.

A copy of this brief has been served on John Shepperd, 909

CROSS REFERENCES *-163 parties’ intent. Continental Casualty Co. U. Warren, 254 S.W.2d *-162 simply leads to eventual ending of the business, but actually

iohn.shepperd@wilsone1ser.com

But “the Insured’s business” Was Austin Neurosurgical. The

provision of medical services to public, Hansen did not “end” *-158 patient contact. It could mean that business ends whenever

Heritage Resources 12. Hill, 104 S.W.3d 612

Western Indemnity Co. v. Murray, 208 S.W. 696,

In response to a request from Plaintiﬂ‘, the Count issues the following ﬁndings of fact effort to collect those accounts was ongoing at the time Hansen

Firm”). The legal malpractice claim arises out of failure of

business since it no longer had any owner Who qualified as an

Hansen suffered his disabling injury. But Austin Neurosurgical

Under Chapter 11 of the Business Organizations Code, the

starts.

license. This Court would have reversed the trial court in the

App.—Ft. Worth 2004, no pet.). The issue is when, as a matter of

the issues in this case. In order to decide whether Roach’s

“RR.” Since this is an appellate legal malpractice case based on

Did trial courts in this case and in the Underlying Case

Hansen is a neurosurgeon by education, training, and

questions of law are reviewed de novo by the appellate court, and

on the fact that the insured had sold his practice and was

(Tex. 1999); Kelly-Coppedge, Inc. v. Highlands Ins. C0,, 980

Benefit Termination or Adjustment. If insured *-148 coordination in Hansen’s hands. Due to that injury, Hansen could

Fannin Street, Suite 3300, Houston, TX 77010 in accordance With

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

liability failed. The trial court in Underlying Case erred in

Following that denial of benefits, Hansen retained Roach

The potential recoverable damages were therefore stipulated to be

*:**

Certain procedures for approval, nonproﬁt corporations, see V.T.CA, Business

medical license. (Tab I; Tab L). Based on that holding, trial

amount of the unpaid benefits under the DOE Policy plus penalty

1, 2).

After Northwestern Mutual had fully breached contract

Past Due Findings of Fact and Conclusions of Law on December 9,

the benefits he would have received through that successful

practice that had to be paid, he had records that he had to

Continuation of Business In Fact

(Tex. App.—Austin 1998, no pet.)

698 (Tex. Comm. App. 1919)

28 for period of winding up. Hansen was therefore entitled to the *-139 any licensed professionals as members. Therefore, under that

“authorized person” as required by Section 301.007 must promptly

23 *-136 Underlying Case. When Hansen was injured, DOE Policy present case is an appellate legal malpractice case. The causation

$605,723.31.

Underlying Case.

by courts of appeals, and the appellate court is not obligated to

Organizations Code § 22.302.

ends the operation of the business while totally or Texas Rules of Appellate Procedure this 19th day of October, *-131 conclusions of law:

909 Fannin Street, Suite 3300

ends it at that time. The limitation or termination of coverage

762, 763 (Tex. 1953); Insurance Company of North America v.

SIGNED this 12th day of June 2015.

policy does not terminate beneﬁts when that business is “closed” business because it had not been brought to a ﬁnal point or

attempting to claim beneﬁts for expenses @ the sale of the

Hansen has terminated his last employee. It could mean that the

Continuation of Business In Fact

authorized person. Section 11.001 deﬁnes “winding up” as the

Certain procedures relating to winding up, for-proﬁt corporations, see V.T.CA.. Business

surrendered his license. As a matter of undisputed fact, the

Roach and Firm to timely perfect an appeal in a prior case in

did not cease to exist or terminate at that time—it continued in

business is not “terminated” until the winding up process is

Underlying Case if Roach had not negligently failed to timely

admitted negligence in this case proximately caused damage to

commit error When the courts held that the coverage for disability

law, applying rules of interpretation and statutory law that 1.7 COVERED OVERHEAD EXPENSE

experience. (TAB F #4, p. 17). Hansen had developed a thriving

no deference is accorded trial court’s determination. The trial

the appellee’s failure to properly perfect the appeal in the

S.W.2d 462, 464 (Tex. 1998). Ifthe policy language can be given a

no longer perform surgery, and he has been rendered totally

Houston, TX 77010

The DOE Policy, owned by Austin Neurosurgical, provided

partially disabled, benefits for Covered Overhead and Firm to pursue recovery of the DOE Policy benefits from

relying upon Hansen’s voluntary surrender of his medical license

2015. full amount of the available coverage.

court in the Underlying Case granted judgment to Hansen for

by refusing to pay any beneﬁts, Hansen was under no obligation

Organizations Code § 21.502.

interest from the date of Hansen’s injury until the entry of the

2013. (Tab K) The trial court then ﬁled Findings of Fact and

appeal.

Continuation of Business Under Texas

maintain, he had personnel to pay, and he had accounts receivable

Insurance Company of North America v. Cash,

unpaid DOE Policy beneﬁts and applicable penalty interest

argument, Hansen “ended the business” at that time since Austin

Wilson U. Monarch Life Insurance Company,

Covered Overhead Expense is the total of monthly expenses that are normal and

relinquish person’s ownership interest in the entity. Section

issue is whether Hansen would have been successful in appeal

give any deference to the trial court’s legal conclusions. FFE

The damages in a legal malpractice case are usually a fact benefits were due beginning at that time. The trial court in the *-102 Powers of person conducting wind up. see V.T.C,A,, Business organizations Code§

Expenses and Waiver of Premium will end.

713-353-2000

would not be applicable until the business actually ended.

Cash, 475 S.W.2d 912 (Tex. 1972). Applying these rules to the *-99 as found by the trial court, but when the insured “ends” the

finish, and that could not occur until all of its debts were paid and

business ends when business has collected all of its assets The evidentiary record from the Underlying Case reﬂects

customary in the continuing operation of the Insured’s business, as properly

Business Organizations Code

475 S.W.2d 912 (Tex. 1972)

971 F.2d 312 (9th Cir. 1992)

business of Austin Neurosurgical had not been brought to an end,

Which Roach and Firm represented Hansen (“the Underlying

23, 28

existence until the completion of the winding up process. As a

completed. Section 11.052 clearly provides that the business does 37

process of winding up business and affairs of a domestic entity

153.503. court must apply, did Hansen “end the business?” Applying

Hansen, the court must decide the issues that would have been

perfect appeal.

court does not have the discretion to incorrectly apply law.

neurosurgical practice in Austin, and practiced in a registered

definite or certain legal meaning, the policy is not ambiguous and

practice. Not surprisingly, courts in those cases found that

disabled from time of that injury through the present.

713-785-7780 (fax)

as a defense when that conduct occurred after Northwestern

/s/Scott R. Kidd

Northwestern Mutual. Suit was ﬁled by Roach on Hansen’s behalf

$201,827.96 in DOE Policy beneﬁts, penalty interest of

reported for federal income tax (F II‘) purposes, with some exceptions as described

that benefits would be payable upon the total disability of the

to comply with any of the terms of the contract. If maintenance of

trial court’s judgment in Underlying Case, plus prejudgment

that he needed to collect. (Tab F Jnt Ex 1; Tab F #s 5, 9) From a

301.007 provides that a person may be an owner of a professional

LIBRARY REFERENCES

of Underlying Case to this Court but for the negligence of

issue for determination by fact ﬁnder at trial. However, in the

Underlying Case found that Hansen was entitled to those benefits Transportation Services, Inc. v. Fulgham, 154 S.W.8d 84 (Tex.

below.

Likewise, the use of the term “business” must be interpreted

facts of the Underlying Case demonstrates that there Was

business. There is a difference between when a business “closes”

and/or retired all of its liabilities. It could mean that business

that Hansen had not yet ended business when he surrendered

matter of law, Hansen did not “end” the business when he

a final point, a finish, by time Hansen surrendered his license.

continue to extent necessary to wind up its business, which in

those rules and statutes to undisputed facts, Hansen did not

Accordingly, this Court must make a de novo determination as to

expenses incurred after insured sold the practice Were not

2012 Main Volume court construes it as a matter of law. Kelly-Coppedge at 464.

Mutual had breached contract. This Court would not have

his medical license was required for Hansen to receive DOE

@ *-44 entity or a governing person of a professional limited liability

and that Northwestern Mutual breached the contact when it

2012 Main Volume

iii

IlllllllllllllllllllIllll||l|Ill||||l||l||||lll|H|Il

0040

Page ^[1] of 3 Page 2 of 3

Page 3 of 3

Corporations and Business Organizations as-8089 to ^[3091] , ^[3120] to 3140, 3660.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1 1 *-7 25

FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS

10/23/2015 1:16:31 PM

JEFFREY D. KYLE Clerk

THIRD COURT OF APPEALS 10/23/2015 1:16:31 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00378-CV *1 ACCEPTED ^[7516414] CLERK

No. 03-15-0037 8—CV

JAMES HANSEN

LONNIE ROACH and

BEMIS, ROACH & REED

APPELLANT’S BRIEF

Scott R. Kidd

State Bar No. ^[11385500]

512-330-1713

scot’t@kidd1avvaustin.com

Scott V. Kidd

State Bar No. ^[24065556]

512-542-9895

svk@kidd1awaustin.com

KIDD LAW FIRM

[819] West 11th Street

Austin, TX ^[78701]

512330-1709 (fax)

Oral Argument Requested

4-2

Page ^[1] of ^[3] https://a.next.westlaw.com/DocumenuNC14FBO9OD98111E2B2838FF124B0...ch%ZOResu|t&transiIlonType=Searchlrem&contextData=%28sc.Search%29

Read the detailed case summary