Terry Lee McCormick v. State

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00325-CR

Terry Lee McCormick,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2005-390-C

ORDER

          The Court’s opinion and judgment dated January 10, 2007 are withdrawn.

                                                          PER CURIAM

Before Chief Justice Gray,

          and Justice Vance

Opinion and judgment withdrawn

Order issued and filed February 21, 2007

Do not publish

DISSENTING OPINION

      I would sustain Acadian’s second issue and hold that the Plaintiffs’ claims based on “profit sharing plans” fail as a matter of law.

      PGS acquired Acadian through an transaction described as a “reverse triangular merger.” PGS caused a wholly-owned subsidiary to merge with Acadian, and Acadian’s shareholders received shares of PGS in exchange for their shares of Acadian. Acadian survived as a subsidiary of PGS. Acadian received no “proceeds.”

      Furthermore, the plaintiffs’ contracts relate to “profits.” Proceeds that Acadian might have received from PGS does not translate into profits.

      We sustain a no-evidence issue when the record reveals one of the following: (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n.9 (Tex. 1990) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-363 (1960)). I find no evidence to support a finding that “profit sharing plan” means “proceeds”; indeed, the evidence conclusively establishes the opposite of that fact. See id. Thus, the judgment that the plaintiffs are entitled to any part of the “proceeds” of the “sale” of Acadian should not stand. Because the majority holds otherwise, I respectfully dissent.

                                                                   BILL VANCE

                                                                   Justice

Opinion delivered and filed July 9, 2003