in Re Richard Owen Taylor

• Court: Court of Appeals of Texas
• Decided: November 22, 2006
• Docket: 10-06-00359-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00359-CV

In re Richard Owen Taylor

Original Proceeding

DISSENTING Opinion TO REQUESTING A RESPONSE

          Why?

          Why?  It is a question that I asked frequently as a child.

          Why?  It is a question that was frequently critical to ask clients and opponents when I was practicing law.

          Why?  It is a question I find myself asking frequently as a judge.

          Why?  Why are we not dealing with the procedural impediments to this mandamus before requesting a response?  The fee for filing is unpaid and the petitioner only filed one copy of the petition.  Why not deal with those issues first?[1]

          Why?  Why are we requesting a response when there is no record upon which we can grant relief?

          Why?  Why are we requesting a response when there is clearly an implied ruling, and possibly an express ruling, on the very motion that the petitioner seeks to have us compel a ruling by the trial court?

          This is a pretty simple petition.  Taylor says he is entitled to obtain a ruling on a motion to clarify a prior order of the trial court regarding communications with his children.  Taylor is in jail.  He wants to have certain procedures regarding the manner in which he can communicate with his children reduced to an order so that if those procedures are violated that he can show that the mother of the children, the managing conservator, is in contempt of the order.

          To effect that result, Taylor filed a motion for clarification of the divorce decree seeking a clarification of the procedures by which he could communicate with his children.  In connection with a hearing on the matter, according to the petition, the trial court “instructed Richard [Taylor] that this case would only be heard if he raised it in a modification proceeding.”  While I am quoting from Taylor’s petition, Taylor was not purporting to quote the trial court.

          But if what Taylor says happened is even a close approximation of what the trial court told Taylor, it seems clear to me that the trial court has ruled by implication on the motion, and may have expressly ruled on the motion.  When the trial court told Taylor that, “if Taylor wanted relief on the issue, he needed to file a motion to modify,” that is as clear an implied ruling, denying the motion to clarify, as I can imagine.  See Tex. R. App. P. 33.1(a)(2)(A).  Because I cannot tell from the petition if the trial court’s ruling was made in open court on the record, or in some other form, I am unable to determine if the specific word “denied” was used in response to the motion.  But telling a litigant that they are not going to get any relief under the motion as filed, and telling the litigant that another form for requesting the relief is the only way the issue is going to be heard, is clearly a denial of the pending motion.

          If we could properly address the merits of the petition, getting past the procedural impediments, I would deny the petition because the trial court has already ruled upon it.  Because the majority requests a response, I respectfully dissent from their failure to address the procedural impediments in proper order, and to their request for a response.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting Opinion issued and filed November 22, 2006

Publish

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[1]  After the issues identified in this dissenting opinion were discussed, and without notice to me or the opportunity to participate in the decision by me, Taylor was granted pauper status.  There was no effort by the majority to comply with Rule 5 or Rule 20.

es effective and the existence of the association ceases except for the purpose of suits, other proceedings, and acts necessary for the winding up of the association. Tex. Rev. Civ. Stat. Ann. art. 1528f § 20 (Vernon 1997). The provisions of the Texas Business Corporation Act apply to professional associations, except that the Texas Professional Association Act, Tex. Rev. Civ. Stat. Ann. art. 1528f (Vernon 1997), applies in the event of any conflict between it and the Texas Business Corporation Act. Id. § 25 (Vernon 1997). Inasmuch as the Business Corporation Act provides that an existing claim is extinguished unless an action on the claim is brought within three years of the date of dissolution, and there is no conflict with any provision of the Texas Professional Association Act, we hold that Barrett’s claim was extinguished because it was not brought within three years of the date of dissolution.

      Barrett contends that there is a conflict, inasmuch as her claim constitutes a suit necessary for the winding up of the professional association, and section 20 of the Professional Association Act provides that the existence of the association does not cease on the date of dissolution for the purposes of such suits. We do not agree that this section of the Professional Association Act continuing the existence of the association for the purpose of suits necessary for the winding up of the association conflicts with the provision of the Business Corporation Act that claims are extinguished if not filed within three years of dissolution.

      Barrett contends the conflict is that article 7.12 of the Business Corporation Act limits the survival of a corporation to three years from the date of dissolution, whereas the Professional Association Act extends the survivability of a professional association until all "suits, proceedings, or other acts necessary for the winding up of the association" have concluded. It is true that article 7.12 provides that a dissolved corporation shall continue its corporate existence for a period of three years from the date of dissolution for certain purposes. Tex. Bus. Corp. Act Ann. art. 7.12 § A (Vernon Supp. 2003). However, after providing that a corporation shall not be liable for any claim other than an existing claim, the Act provides that if an action or proceeding on an existing claim by or against the dissolved corporation is brought before the expiration of the three-year period following the date of dissolution, and the existing claim has not been extinguished, that the dissolved corporation shall continue to survive (1) for purposes of an action or proceeding until all judgments, orders, and decrees therein have been fully executed, and (2) for purposes of applying or distributing any properties or assets of the dissolved corporation, as provided in certain portions of article 6.04 of the Business Corporation Act, until such properties or assets are so applied or distributed. Id. § C (Vernon Supp. 2003).

      From these provisions we see that the fact that the corporate entity is continued beyond the three-year period following dissolution until suits involving existing claims have become final is not inconsistent with certain existing claims being extinguished because they are not filed within the three-year period following dissolution. Even if Barrett is correct in her assumption that her existing claim is a suit necessary for the winding up of the association, the fact that the Professional Association Act provides that the association continues for the purpose of such suits generally is not inconsistent with a particular claim being extinguished because it was not filed within the three-year period following dissolution. Therefore, there is no conflict between this provision of the Professional Association Act and the provision in the Business Corporation Act that existing claims are extinguished if not filed within the three-year period following dissolution. That being the case, it does not matter whether Durham was still in existence for the purposes set forth in section 20 because Barrett’s claim was extinguished in that it was not filed within three years of the date of Durham’s dissolution.

      Barrett argues that the issue of post-dissolution survival is determined by section 20 because the Professional Association Act is not silent. She insists that by virtue of section 25 of the Professional Association Act, the Business Corporation Act only fills in the gaps when the Professional Association Act is silent. However, as Barrett acknowledges in her brief, section 25 provides that the Business Corporation Act is controlling unless there is a conflict between it and the Professional Association Act. Tex. Rev. Civ. Stat. Ann. art. 1528f § 25 (Vernon 1997). As previously noted, we have found that there is no conflict between article 7.12 of the Business Corporation Act and section 20 of the Professional Association Act. The Professional Association Act is silent with respect to the extinguishment of claims. Consequently, article 7.12 of the Business Corporation Act is controlling.

      Barrett contends that her interpretation that there is a conflict should control because the Professional Association Act section 24 provides that:

Nothing in this Act shall remove or diminish any rights at law that a person receiving professional services shall have against a person furnishing professional services for errors, omissions, negligence, incompetence or malfeasance. The association . . . shall be jointly and severally liable with the officer or employee furnishing professional services for such professional errors, omissions, negligence, incompetence or malfeasance on the part of such officer or employee when such officer or employee is in the course of his employment for the association.

Tex. Rev. Civ. Stat. Ann. art. 1528f § 24 (Vernon 1997). We agree with Durham that the intent of this section is to make sure that professionals would not be shielded from liability by forming professional associations, not to protect Barrett from the application of article 7.12 of the Business Corporation Act.

      Barrett urges that we should not interpret the Acts in this manner because of a public policy, as recognized by Texas courts, of protecting an injured child’s claim during his or her period of incapacity. She cites the cases of Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995) and Brown v. Shwarts, 968 S.W.2d 331 (Tex. 1998). These cases, in dealing with the rights of minors to bring cases, relied not on public policy of protecting an injured child’s claim, but on tolling provisions of the Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Supp. 2003), and on the open courts provision of the Texas Constitution, Tex. Const. art. I, § 13. Weiner, 900 S.W.2d at 318; Brown, 968 S.W.2d at 334-35. Barrett cites no statute that would keep extinguished claims viable until some time after a minor reaches the age of majority, nor does she contend that the statutory scheme of extinguishment of all claims when not filed within three years after a corporation or association’s date of dissolution, including the claims of minors, violates the open courts provision of the Texas Constitution. We sustain issue one. In view of our determination of this issue, we need not consider Durham’s remaining issues.

      We reverse this cause and render judgment that Barrett, as guardian of the estate and of the person of Jeffrey Dale Barrett, an incapacitated person, take nothing, with all court costs awarded to Durham.

                                                                   JOHN G. HILL

                                                                   Senior Justice

Before Chief Justice Davis,

      Justice Gray, and

      Senior Justice Hill (Sitting by Assignment)

Reversed and rendered

Opinion delivered and filed May 7, 2003

[CV06]