Crain v. Northern

FILED IN
BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
1/29/2026
2026 Tex. Bus. 4

THE BUSINESS COURT OF TEXAS
EIGHTH DIVISION

MICHAEL D. CRAIN, Individually and §
Derivatively on Behalf of NORTHERN §
CRAIN REALTY, LLC, NORTHERN §
CRAIN PROPERTY MANAGEMENT, §
LLC, and NORTHERN CRAIN, LLC §
§
Plaintiff, § Cause No. 25-BC08A-0014
§
v. §
§
WILLIAM “WILL” NORTHERN. §
§
Defendant. §

═══════════════════════════════════════════════════════
OPINION AND ORDER
═══════════════════════════════════════════════════════

Syllabus *

This Opinion addresses the enforcement of a mandatory Buy-Sell Option clause and
its specific performance remedy after the Offeror tendered the requisite buy/sell notice and the
Offeree failed to respond to the notice and claimed the Offeror violated the underlying
Company Agreement. The Court ultimately finds the Offeror is entitled to specific
performance from the Offeree under the Buy-Sell Option clause. The Court awards the Offeror
attorneys’ fees.

*
The syllabus was created by court staff and is provided for the convenience of the reader. It is not
part of the Court’s opinion, does not constitute the Court’s official description or statement, and should not
be relied upon as legal authority.
OPINION
¶1 Pending before the Court is Defendant William Northern (“Northern”)’s

Motion for Summary Judgment for Specific Performance of Buy-Sell Purchase (“Motion”),

filed on October 23, 2025. Plaintiff Michael D. Crain (“Crain”) filed his Response to

Defendant’s Motion for Summary Judgment for Specific Performance of Buy-Sell Purchase

(“Response”) on November 27, 2025, and Northern filed his Reply on December 3, 2025.

The Court held a hearing on the Motion on December 3, 2025. Northern timely objected

and moved to strike the Declaration of Garette M. Amis attached to Crain’s Response as

summary judgment evidence. 1 The matter is ripe for review.

I. BACKGROUND

¶2 Crain and Northern shared a business relationship. In 2020, the two created

Northern Crain Realty, LLC (“Realty”) and Realty’s two subsidiaries, Northern Crain

Property Management, LLC (“Property Management”) and Northern Crain, LLC (“NC,

LLC”) (individually, “NC Entity,” and collective with Realty, the “NC Entities”). See

Plaintiff’s Second Amended Petition (“Sec. Am. Pet.”) at 4; see Northern’s Motion for

Summary Judgment (“SJ Mot.”) at 3. Crain and Northern each hold 50% membership

interest in the NC Entities. See SJ Mot. at 5. Each entity is governed by nearly identical

Company Agreements (collectively hereinafter, the “Company Agreements”). See id. at 3.

1
Crain filed the “Declaration of Garette M. Amis” (“Amis Declaration”) as a Response exhibit. See
Plaintiff’s Response to Defendant’s Motion for Summary Judgment for Specific Performance of Buy-Sell
Purchase (“Resp.”), Ex. A, at 26-28. Amis, as counsel for Crain and the NC Entities, claims to have “personal
knowledge of the facts stated herein regarding the information relating to [Crain’s] Response.” Id. at 28.
However, for the reasons stated in the Order issued contemporaneously with this Opinion, the Court will not
consider the Amis Declaration, as it does not comport with Texas Rule of Civil Procedure 166a(f) and lacks
any probative value.

OPINION AND ORDER | PAGE 2
Crain and Northern each signed the Company Agreements. 2 See id at 3. Section 10.08 of

each Company Agreement is the “Buy-Sell Option” clause that provides for a mandatory

buy-sell procedure should Crain or Northern seek to sell or buy membership interest in an

entity. 3 See SJ Mot., Ex. A at 49-50.

¶3 In June 2025, Crain sued Northern claiming, inter alia, Northern breached

fiduciary duties by acquiring the Woodhaven Country Club and adjacent property

(“Woodhaven Project”). See Sec. Am. Pet. at 14. Northern counterclaimed for specific

performance and a declaratory judgment, seeking the following relief:

(1) A judgment of specific performance against Crain and ordering
Crain to execute and deliver to Northern the assignment of his membership
interests in the NC Entities, (2) a declaration that the purported attempt to
expel Northern from the NC entities was invalid, void, and of no force and
effect, (3) a declaration that the Woodhaven Project is neither directly
competitive with the defined business activity of the NC Entities nor a
violation of Section 13.03 of the Company Agreements, and (4) attorneys’
fees.

See Defendant’s Original Counterclaim for Specific Performance and Declaratory Judgment

at 17-18.

¶4 Northern filed the instant Motion seeking an order of specific performance

requiring Crain to sign and deliver to him an “Irrevocable Assignment of Membership

Interest” for each NC Entity with an effective date of December 19, 2024. See Motion at

2
NC, LLC’s Company Agreement on November 30, 2020, Realty’s Amended and Restated Company
Agreement on October 22, 2020, and Property Management’s Amended and Restated Company Agreement
also on October 22, 2020.

3
Provisions such as Section 10.08 are commonly referred to as “Texas Shootout” provisions. See
Wings v. Freedman, No. 05-23-00077-CV, 2024 WL 5066085, at *1, n.2 (Tex. App.—Dallas Dec. 11, 2024,
no pet.), citing Douglas G. Baird and Donald S. Bernstein, Absolute Priority, Valuation Uncertainty, and the
Reorganization Bargain, 115 Yale Law Journal, 1930, 1953 (2006).

OPINION AND ORDER | PAGE 3
25. Northern argues Crain, as a matter of law, breached the Company Agreements’ Buy-

Sell Option clause and is obligated to sell his membership interests in the NC Entities to

Northern. See SJ Mot. at 2. But Crain contends genuine issues of material fact exist

concerning (1) Northern’s alleged prior breaches that preclude him from enforcing the

Company Agreements’ Buy-Sell Option clause, (2) Northern’s alleged unclean hands, and

(2) Northern’s valuation of the membership interests’ absent the Woodhaven Project’s

potential profit. See Resp. at 5, 13, 21.

II. LEGAL STANDARD

¶5 Summary judgment is governed by Texas Rule of Civil Procedure 166a. To

obtain a traditional summary judgment, the movant “bears the burden to show that no

genuine issue of material fact exists and that it is entitled to judgment as a matter of law.”

ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018) (citing TEX. R. CIV. P.

166a(c)). For a traditional motion for summary judgment, the movant satisfies its burden

by conclusively negating at least one element of the nonmovant’s cause of action or proving

all elements of the movant’s cause of action or affirmative defense. Stanfield v. Neubaum,

494 S.W.3d 90, 96 (Tex. 2016). The burden then shifts to the nonmovant to raise a fact

issue to defeat summary judgment. Id. at 97. This burden requires the nonmovant to

specifically identify the supporting proof it seeks to have considered by the trial court and

explain why it demonstrates a fact issue exists. Cty. of Hous. v. Clear Creek Basin Auth.,

589 S.W.2d 671, 678 (Tex. 1979); see also Baubles & Beads v. Louis Vuitton, S.A., 766

S.W.2d 377, 379 (Tex. App.—Texarkana 1989, no writ).

OPINION AND ORDER | PAGE 4
¶6 A summary judgment response that relies on conclusory assertions, broad

record references, and fails to pinpoint evidence tying particular facts to particular defenses

is not sufficient. See Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776-77 (Tex. App.—

Dallas 2013, pet. denied) (general reference to voluminous exhibits and other supposed

“evidence” without more explicit direction to the support for a claim will not raise an issue

of fact). The Court need not sift through the voluminous exhibits offered to supply the

missing linkage. See id.; see also Comm’n for Lawyer Discipline v. Powell, 689 S.W.3d 620,

629 (Tex. App.—Dallas 2024, no pet.)(“Merely citing generally to voluminous summary

judgment evidence in response to either a no-evidence or traditional motion for summary

judgment is not sufficient to raise an issue of fact to defeat summary judgment.”); Aguilar

v. Morales, 162 S.W.3d 825, 838 (Tex. App.—El Paso 2005, pet. denied) (“In the absence

of any guidance from the non-movant where the evidence can be found, the trial and

appellate courts are not required to sift through voluminous [evidence] in search of evidence

to support the non-movant’s argument that a fact issue exists.”). Further, what is

effectively an attorney’s verification without any credible foundation for personal

knowledge does not create a genuine fact issue. See Stucki v. Noble, 963 S.W.2d 776, 781-

82 (Tex. App.—San Antonio 1998, pet. denied), citing Tubin v. Garcia, 159 Tex. 58, 62,

316 S.W.2d 396 (Tex. 1958) (counsel’s affidavits stating check copies were “true and

correct” is not competent summary-judgment evidence absent a foundation for counsel’s

personal knowledge).

¶7 When evaluating a motion for summary judgment based on summary-

judgment evidence, the Court must take as true all evidence favorable to the nonmovant,

OPINION AND ORDER | PAGE 5
indulging every reasonable inference and resolving any doubts in the nonmovant’s favor.

IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).

Questions of law are appropriate matters for summary judgment. Rhone-Poulenc, Inc. v.

Steel, 997 S.W.2d 217, 223 (Tex. 1999); Westchester Fire Ins. Co. v. Admiral Ins. Co., 152

S.W.3d 172, 178 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g).

III. DISCUSSION

A. The Company Agreements and the Buy-Sell Option Clause

1. Validity and Plain Language

¶8 As a matter of law, the Company Agreements, including the Buy-Sell Option

clauses contained therein, are valid agreements governing the NC Entities and their express

terms must be enforced. Akin to a contract, a company agreement governs the internal

affairs of a limited liability company. TEX. BUS. ORGS. CODE § 101.052(a). The agreement

may contain any provision for the regulation and management of the company’s affairs that

is not inconsistent with the law. Id. § 101.052(d). When interpreting a company

agreement, courts apply the general principles of contract construction. See Abdullatif v.

Choudhri, 561 S.W.3d 590, 609-10 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).

¶9 A court’s primary objective when construing a contract is “to ascertain and

give effect to the parties’ intent as expressed in the instrument.” U.S. Polyco, Inc. v. Tex.

Cent. Bus. Lines Corp., 681 S.W.3d 383, 387 (Tex. 2023) (quoting URI, Inc. v. Kleberg Cnty.,

543 S.W.3d 755, 763 (Tex. 2018)). Thus, when the provisions of a company agreement are

unambiguous, a court must enforce them as written and take care not to rewrite them under

the guise of interpretation. Abdullatif, 561 S.W.3d at 609-10 (citing Am. Mfrs. Mut. Ins.

OPINION AND ORDER | PAGE 6
Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003). A court will determine and enforce the

parties’ intent as it was expressed within the four corners of the written agreement,

interpreting the contractual language according to its plain, ordinary, and generally

accepted meaning unless the instrument directs otherwise. Piranha Partners v. Neuhoff,

569 S.W.3d 740, 743 (Tex. 2020); URI, 543 S.W.3d at 763-64. A court will examine the

entire agreement and give every provision effect so none will be meaningless, as courts

cannot interpret around clearly defined terms or phrases. Gilbert Tex. Constr., L.P. v.

Underwriters at Lloyd’s London, 327 S.W.3d 118, 126; Sundown Energy LP v. HJSA No. 3,

Ltd. P’ship, 622 S.W.3d 884, 888 & n.15 (Tex. 2021) (per curiam).

¶ 10 Options, preferential rights, and contractual buy-sell mechanisms are

unilateral rights that must be exercised or timely challenged in the manner the agreement

prescribes, and courts generally enforce deemed-election clauses as written. See, e.g., L&S

Pro-Line, LLC v. Gagliano, No. 09-21-00178-CV, 2024 WL 3218507, at *16-18 (Tex.

App.—Beaumont June 28, 2024, pet. denied) (enforcing push-pull clause where member

made no election during the election period); Wings v. Freedman, No. 05-23-00077-CV,

2024 WL 5066085, at *5-6 (Tex. App.—Dallas Dec. 11, 2024, no pet.) (enforcing deemed-

election consequence and rejecting post-deadline procedural and methodology challenges).

Relatedly, when a contract makes the timing and manner of acceptance essential, a party

cannot let the acceptance window close and then avoid the consequences of its inaction.

See Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518, 523-24 (Tex. App.—Amarillo

1998, pet. denied) (option must be accepted “in the precise manner required”).

OPINION AND ORDER | PAGE 7
Here, the Company Agreements’ Buy-Sell Option clause reads:

10.08 Buy-Sell Option. Each Member shall have, and is hereby
granted, the right to initiate a mandatory buy-sell option by providing written
notice (the “Buy-Sell Notice”) to any other Member, which Buy-Sell Notice
shall set forth the offering Member's offer to purchase the entire Membership
Interest of the receiving Member (the “Offeree”) for a cash purchase price
set forth in the Buy-Sell Notice. The initiating Member(s) shall
simultaneously provide a copy of the Buy-Sell Notice to all Members and the
Company. The purchase price shall be stated in terms of the purchase price
attributable to one hundred percent (100%) of all outstanding Membership
Interests of the Company (the “Company Price”) multiplied by the
Percentage Interest of the Offeree. Purchase price shall also be pursuant to
provision 10.05 and include all anticipated and known business. Within
thirty (30) days after receipt of the Buy-Sell Notice, the Offeree must notify
the offering Member (the “Offeror”) in writing of its election to either (i) sell
its Membership Interest to the Offeror at such cash purchase price or (ii)
purchase the Offeror’s Membership Interest for the Company Price set out in
the Buy-Sell Notice multiplied by the Percentage Interest of the Offeror. If
such election notice is not given within such thirty-day (30) period it shall be
conclusively deemed that the Offeree has elected to sell its Membership
Interest to the Offeror. The closing of the sale and purchase of the
Membership Interest pursuant to this Section 10.08 shall occur on or before
the expiration of ninety (90) days following the receipt by the Offeror of
notice of the Offeree’s election. In consideration for the purchase price, the
selling Member shall convey to the purchasing Member all right, title and
interest in and to the selling Member's Membership Interest, free and clear of
all liens, claims and encumbrances and shall execute all instruments
necessary to perfect the sale of such Membership Interest. The closing shall
also include the assignment by the transferring party and its affiliates of all
membership interests. The closing shall also include the assignment by the
transferring party and its affiliates of all membership interests. The purchase
price for the Membership Interests transferred under this Section 10.08 shall
be paid in immediately available funds. At the closing, the seller shall assign
to the buyer all Membership Interests free and clear of any liens, claims or
encumbrances. If a party does not perform its obligations under this Section
l0.08, the other party shall have the right to compel specific performance of
such obligations. All parties agree that damages are an inadequate remedy for
a breach of this Agreement.

Sec. Am. Pet., Ex. C., at 83-84 (emphasis omitted). In July 2024, the parties discussed the

dissolution of their partnership but were unable to agree on dissolution terms. See SJ Mot.

OPINION AND ORDER | PAGE 8
at 6-7. Northern sent Crain a written proposal for the division of the NC Entities and Crain

responded with various allegations of Northern’s independent and unfair dealings. Id. at 7.

Notably, Crain never lodged a formal dispute under the Company Agreements’ dispute

resolution clause. Id. On August 16, 2024, Northern as “Offeror” sent Crain as “Offeree”

a Buy-Sell Purchase Offer Notice (“Offer Notice”) seeking to purchase (1) Crain’s 50%

membership interest in NC, LLC for $1 million dollars, (2) Crain’s 50% membership interest

in Realty for $35,000, and (3) Crain’s 50% membership interest in Property Management

for $22,000 and 50% of Property Management’s net cash on hand on closing day. 4 See id.

at 12.

¶ 11 Under the above Buy-Sell Option clause, Crain had 30 days from the date he

received the Offer Notice to notify Northern his election to either (1) sell his membership

interests in each NC Entity to Northern, or (2) notify Northern he elected to purchase

Northern’s membership interests in each NC Entity. See Sec. Am. Pet., Ex. C, at 84. Crain

did not respond to the Offer Notice by the 30-day deadline (September 19, 2024). See SJ

Mot. at 12. In October 2024, the parties agreed to mediate during the Company

Agreements’ prescribed mediation timeline. See SJ Mot. at 10. However, Crain failed to

appear for mediation and the mediation deadline expired. Id. On March 13, 2025, Northern

delivered cashier’s checks to Crain in the amounts prescribed by the Offer Notice. Id. at 13.

Crain never negotiated the checks, refused to close on the purchase/sale, and filed the

instant lawsuit. Id.

4
Crain received the Offer Notice on August 19, 2024. See SJ Mot., Ex. L, at 134.

OPINION AND ORDER | PAGE 9
¶ 12 As a threshold matter, the Court finds the Company Agreements serve as the

NC Entities’ contract governing their internal affairs and relations. The Company

Agreements show both parties were mutually obligated under the contract and sufficient

consideration existed. See Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 573

(Tex. App.—Fort Worth 2008, pet. denied). Crain lodges a murky challenge of the

Company Agreements’ validity, stating he “denies that he executed, authorized, or agreed

to any alleged ʻBuy-Sell Purchase Offer Notices’ in the manner or form alleged,” but he does

not provide evidence supporting the challenge. Resp. at 2; see, supra, at n.2 (signature dates

for each NC Entity’s Company Agreement). In fact, nowhere in the correspondence from

Crain’s counsel to Northern’s counsel does Crain ever contest or question the enforceability

of the Company Agreements’ clauses. Instead, Crain’s counsel’s correspondence primarily

addresses Crain’s intended withdrawal from active participation in the NC Entities and

potential litigation regarding the Woodhaven Project. See SJ Mot., Exs. H, J, Q, S, U, X, Z,

at 114-24, 128, 143, 147-51, 157-58, 175-76, 178. The Court will not invalidate the parties’

agreement based on Crain’s unilateral and unsupported contention. The Company

Agreements and the clauses within are legally valid.

¶ 13 Having found the Company Agreements are valid, the Court gives effect to

the Buy-Sell Option clause’s plain language. Both Northern and Crain’s signatures on the

Company Agreements indicate they agreed to the Buy-Sell Option clause’s express

procedure regarding notice and membership interest forfeiture. The pertinent language

leaves little room for interpretation:

OPINION AND ORDER | PAGE 10
Each Member . . . [has] the right to initiate a mandatory buy-sell option
by providing written notice.
...

Within thirty (30) days after receipt of the Buy-Sell Notice, the
Offeree must notify the offering Member (the “Offeror") in writing of its
election[s].
...

If such election notice is not given within such thirty-day (30) period
it shall be conclusively deemed that the Offeree has elected to sell its
Membership Interest to the Offeror.
...

The closing of the sale and purchase of the Membership Interest . . .
shall occur on or before the expiration of ninety (90) days following the
receipt by the Offeror of notice of the Offeree's election.

...

If a party does not perform its obligations . . . the other party shall have
the right to compel specific performance of such obligations. All parties agree
that damages are an inadequate remedy for a breach of this Agreement.

Sec. Am. Pet., Ex. C., at 83-84 (emphasis added). The terms are definite, unwavering, and

agreed by both parties. The language’s certainty and the parties’ signatures demonstrate

that the parties intended the buy-sell process to be streamlined and unquestionable. The

Court will not rewrite unambiguous terms but will instead enforce the parties’ original

intent as expressed in the Company Agreements. Neuhoff, 569 S.W.3d at 743 (Tex. 2020).

Accordingly, no genuine issue of material fact exists as to the Company Agreements’

validity or its express terms.

OPINION AND ORDER | PAGE 11
2. Compliance and Specific Performance

¶ 14 Northern is entitled to specific performance under the express terms of the

Buy-Sell Option clause. Specific performance is an equitable remedy and is used as a

substitute for monetary damages when such a remedy would be inadequate. DiGiuseppe v.

Lawler, 269 S.W.3d 588, 593 (Tex. 2008); Paciwest, 266 S.W.3d at 571. The parties

agreed: the Offeror is to supply an Offer Notice to the Offeree and if the Offeree does not

elect to either buy or sell his membership interests, he is “conclusively deemed” to sell his

membership interests. Sec. Am. Pet., Ex. C., at 84. The parties further agreed “damages

are an inadequate remedy for a breach” of the Buy-Sell Option clause. Id. Northern

complied when he sent and Crain received the Offer Notice for each NC Entity on August

16, 2024. By wholly failing to respond to Northern with his election, Crain intentionally

forfeited his membership interest in each NC Entity. Crain knew the Buy-Sell Option

clause’s language was unforgiving and “mandatory,” and that failure to adhere to its

procedures would “conclusively deem[]” membership interest forfeiture. Despite knowing

and agreeing to the language, Crain purposefully declined to provide Northern his election

within the agreed time period.

¶ 15 Crain appears to pick-and-choose which clauses he deems enforceable

without providing any evidence sufficient to support his claims. For example, in his Second

Amended Petition, Crain asks the Court to enforce the Company Agreements’ clauses

concerning other dealings, prohibition on disclosures, non-solicitation, etc. See Sec. Am.

Pet., at 39-46, 54. But in his Response, he argues the Buy-Sell Option clause is not

enforceable and the Court should not order specific performance because Northern breached

OPINION AND ORDER | PAGE 12
other Company Agreement clauses. See Resp. at 9. Notably, Crain never utilized the

dispute resolution process contained in section 13.11 of the Company Agreements to lodge

a dispute, nor did he attend mediation as prescribed by the clause. See SJ Mot. at 7, 10. He

instead chose to wholly skirt his obligation to respond to Northern’s Offer Notice. Having

found the Company Agreements valid and seeking to uphold their express terms, the Court

will not selectively enforce certain clauses and not enforce others. Said otherwise, Crain’s

allegations do not excuse avoiding the Buy-Sell Option clause’s express procedure.

¶ 16 Because the summary judgment evidence demonstrates that Northern has

established his full performance under the above clause and, because Crain wholly failed to

respond to Northern’s performance, Northern is entitled to Crain’s membership interest in

the NC Entities per the mandatory Buy-Sell Option clause’s express language. Accordingly,

Crain must sell his membership interest in the NC Entities to Northern.

i. Date

¶ 17 The Court’s order of specific performance shall be dated effective December

19, 2024. Having found the Company Agreements’ validity and holding true to the

signatories’ original intent in drafting the Buy-Sell Option clause, the Court finds

enforceable the 90-day closing provision:

The closing of the sale and purchase of the Membership Interest
pursuant to this Section 10.08 shall occur on or before the expiration of
ninety (90) days following the receipt by the Offeror of notice of the Offeree's
election.

Sec. Am. Pet., Ex. C., at 84. Crain received Northern’s Offer Notice on August 16, 2024.

See SJ Mot., Ex. L, at 134. The closing, no matter Crain’s election to buy or sell, was to

OPINION AND ORDER | PAGE 13
occur 90-days after receipt: December 19, 2024. Despite Northern’s repeated attempts to

comply with the Company Agreements and close according to the prescribed timeline,

Crain never notified Northern of his election. Crain should not benefit from his failure to

comport with the Company Agreements, and equity favors dating the closing as the

originally prescribed 90-day date. See Heritage Hous. Corp. v. Ferguson, 674 S.W.2d 363,

366 (Tex. App.—Dallas 1984), writ ref’d n.r.e.)(court orders specific performance and

payment of expenses incurred by plaintiffs as a result of defendant’s late performance to

“equalize” any losses caused by delay). There exists no genuine issue of material fact

concerning the date of specific performance—the closing documents shall reflect closing on

December 19, 2024.

ii. Valuation

¶ 18 Still continuing to enforce the Company Agreements’ plain language and the

parties’ original intent, valuation of each NC Entity shall comport with the Company

Agreements’ Section 10.05—Determination of Fair Value (“Fair Value clause”) and shall

exclude any valuation related to the Woodhaven Project.

The Fair Value clause states:

10.05 Determination of Fair Value. The “Fair Value” of a Membership
Interest shall be the amount that would be distributable to the Member
holding such interest in the event that the assets of the Company were sold
for cash and the proceeds, net of liabilities, were distributed to [Realty] . . .
“Fair Value” is to include all tangible assets as well as intangible assets such
as goodwill and reputational value. In the event of a dispute of the Members
as to the Fair Value of a terminated Member’s Membership Interest, each
Member shall be entitled to appoint a certified public accountant (C.P.A.) to
value the Membership Interest to be distributed to determine the Fair Value.

OPINION AND ORDER | PAGE 14
Included in the valuation, shall be all anticipated and known business
dealings with a ninety (90) day protection period covering all transactions . .
. All executed and finalized transactions during that protection period shall
be deemed a transaction of the whole business with all Members having a
proportional share of that business. After the valuations of the respective
Member’s C.P.A.’s exists after their respective valuations, the Member’s
shall initiate a legal proceeding in the District Courts of Tarrant County,
Texas, for the express limited purposes of having the District Court appoint
a Receiver for the expressly limited purpose of valuing the Member’s
Membership Interest in the Company for the purposes of this Article 10 of
this Agreement. This will also include all known or anticipated deals of which
the Members are a party.

SJ Mot., Ex. B, at 74-75 (emphasis omitted).

¶ 19 The Buy-Sell Option and Fair Value clauses work in tandem to create a regime

and a self-executing procedure with firm deadlines. The Offer Notice must state a cash price

“pursuant to” the Fair Value clause and must “include all anticipated and known

business.” SJ Mot., Ex. B, at 75. The Fair Value clause supplies the valuation standard and

the agreement’s mechanism for disputing it. See id. The Buy-Sell Option clause then sets

the timetable: the Offeree must elect in writing within 30 days, silence is “conclusively

deemed” an election to sell, and the parties shall proceed to close on a 90-day schedule.

Sec. Am. Pet., Ex. C, at 84.

¶ 20 Paralleling the Court’s previous discussion regarding the Company

Agreements and their respective Buy-Sell Option clauses, the Fair Value clause’s terms are

likewise express and agreed by both parties. Crain argues Northern failed to adhere to the

above requirements by failing to include the Woodhaven Project’s purchase price in the

Offer Notice. See Resp. at 13. He relies on the Fair Value clause’s final sentence that

membership interest valuation “will also include all known or anticipated deals of which

OPINION AND ORDER | PAGE 15
the Members are a party.” SJ Mot., Ex. B, at 75. But the evidence before the Court does

not establish the NC Entities or Northern’s membership in the Woodhaven Project so as to

properly include it in the Offer Notice. Northern did not breach the Fair Value clause by

failing to include the Woodhaven Project valuation. Crain cannot recast his inaction and

consequent forfeiture of his contract rights to dispute Northern’s valuation and avoid

specific performance. Accordingly, no genuine fact issue exists as to the valuation—the

parties shall follow the Fair Value clause as prescribed by the Company Agreements.

iii. Unclean Hands Allegation

¶ 21 Crain’s allegation of Northern’s unclean hands lacks sufficient summary

judgment proof and neither creates a genuine issue of material fact nor negates equitable

specific performance. “The doctrine of unclean hands operates as a bar to the equitable

relief of specific performance.” Lazy M Ranch, Ltd. v. TXI Operations LP, 978 S.W.2d 678,

683 (Tex. App.—Austin 1998, pet. denied). The party claiming unclean hands has the

burden to show that it was injured by the other party’s unlawful or inequitable conduct.

Stafford v. S. Vanity Mag., Inc., 231 S.W.3d 530, 536 at n.4 (Tex. App.—Dallas 2007, pet.

denied); Willis v. Donnelly, 118 S.W.3d 10, 38 (Tex. App.—Houston [14th Dist.] 2003),

aff’d in part and rev’d in part on other grounds, 199 S.W.3d 262, 278-79 (Tex. 2006). The

doctrine should not be applied “unless the party asserting the doctrine has been seriously

harmed and the wrong complained of cannot be corrected without the application of the

doctrine.” Paciwest, 266 S.W.3d at 571 (citing Dunnagan v. Watson, 204 S.W.3d 30, 41

(Tex. App.—Fort Worth 2006, pet. denied)).

OPINION AND ORDER | PAGE 16
¶ 22 Crain avers there is a “genuine issue of material fact [] regarding Northern’s

failure to follow the terms and condition so the Company Agreements,” and that the “Buy-

Sell Option cannot be enforced by a member who has breached his fiduciary duties and the

Company Agreements.” Resp. at 17, 20. Specifically, but absent supporting evidence, he

asserts Northern engaged in self-dealing and Northern failed to disclose competitive

business activities like the Woodhaven Project. 5 See id. at 18. However, nothing before the

Court establishes Northern’s actions or inactions bar him from receiving Crain’s

membership interests in the NC Entities pursuant to the Buy-Sell Option clause. Crain has

not met his burden to prove Northern caused harm so serious as to abandon the Buy-Sell

Option clause’s express language providing for specific performance.

IV. ATTORNEY FEES

¶ 23 Northern is entitled to recover attorney’s fees incurred with respect to his

Motion. “A person may recover reasonable attorney’s fees . . . in addition to the amount of

a valid claim and costs, if the claim is for . . . an oral or written contract.” TEX. CIV. PRAC.

& REM. CODE § 38.001(8). If attorney’s fees are proper under section 38.001(8), the trial

court has no discretion to deny them. See Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d

545, 547 (Tex. 2009); Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). However, before

a court can award attorney’s fees, the party must prove the fees are reasonable and

necessary. Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 751 (Tex. App.—Houston [14th

5
While the parties clearly dispute whether Northern’s actions or inactions concerning the
Woodhaven Project constitute a breach of the Company Agreements, the Court will not address the dispute
in this Opinion.

OPINION AND ORDER | PAGE 17
Dist.] 2005, no pet.). The Texas Supreme Court has identified eight factors to consider

when determining an award of attorney’s fees:

(1) The time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal service
properly; (2) the likelihood that the acceptance of the particular employment
will preclude other employment by the lawyer; (3) the fee customarily
charged in the locality for similar legal services; (4) the amount involved and
the results obtained; (5) the time limitations imposed by the client or the
circumstances; (6) the nature and length of the professional relationship with
the client; (7) the experience, reputation and ability of the lawyer or lawyers
performing the services; and (8) whether the fee is fixed or contingent on
results obtained or uncertainty of collection before the legal services have
been rendered.

See In re National Lloyds Ins., 532 S.W.3d 794, 810-11 (Tex. 2017); see also Arthur

Andersen & Co. v. Perry Equip. Co., 945 S.W.2d 812, 818 (Tex. 1997).

¶ 24 Evidence of attorney’s fees that is clear, direct, and uncontroverted is taken

as true as a matter of law, especially where the opposing party had the means and

opportunity of disproving the evidence but did not. Ragsdale v. Progressive Voters

League, 801 S.W.2d 880, 882 (Tex. 1990). Testimony by an interested witness may

establish the amount of attorney’s fees as a matter of law only if: (1) the testimony could be

readily contradicted if untrue; (2) it is clear, direct, and positive; and (3) there are no

circumstances tending to discredit or impeach it. Id.

¶ 25 Northern’s counsel, Randall Schmidt (“Schmidt”), testified he has practiced

law for 48 years. See SJ Mot., Ex. FF, at 188-91. He stated he, his co-counsel Jerold

Mitchell (“Mitchell”), and his paralegals spent 53.45 hours preparing summary judgment

evidence, drafting the summary judgment motion, and attending the summary judgment

hearing. See id. at 192. He also stated the following hourly rates: Schmidt at $600/hour,

OPINION AND ORDER | PAGE 18
Mitchell at $400/hour, and paralegals at $150-175/hour. See id. Schmidt testified the total

fees associated with the Motion are $25,772.50 and such fees are reasonable and necessary.

See id at 191.

¶ 26 Crain did not offer any evidence to refute Schmidt’s testimony. The evidence

that $25,772.50 was a reasonable attorney’s fee was clear, direct, and positive. Crain could

have contested Schmidt’s testimony but did not. See Ragsdale, 801 S.W.2d at 882.

Therefore, Northern has established as a matter of law the amount of attorney’s fees

incurred for purposes of obtaining summary judgment. 6

V. CONCLUSION
¶ 27 The Court finds no genuine issue of material fact exists as to the Buy-Sell

Option clause found within the Company Agreements. The Court adheres to the clause’s

express language and the parties’ intent and finds Northern is entitled to buy, and Crain is

entitled to sell, Crain’s membership interests in the NC Entities.

¶ 28 It is therefore ORDERED that Crain tender to Northern forms of Irrevocable

Assignment of Membership Interest in the Northern Crain Entities.

¶ 29 It is further ORDERED that the Irrevocable Assignment of Membership

Interest shall have an effective date of December 19, 2024.

6
Northern’s Motion also includes a general request for attorney’s fees that may be incurred in the
event of an appeal by Crain. SJ Mot. at 23. However, Northern failed to present any evidence of potential
appellate attorney’s fees. Northern’s request is therefore denied.

OPINION AND ORDER | PAGE 19
¶ 30 It is further ORDERED that the Irrevocable Assignment of Membership

Interest shall provide the same valuation for each NC Entity as provided in Northern’s Offer

Notice dated August 16, 2024.

¶ 31 It is further ORDERED that Northern is entitled to an attorney’s fees award

of $25,772.50.

SO ORDERED.

_____________________________
Judge, Texas Business Court,
Eighth Division
SIGNED: January 29, 2026.

OPINION AND ORDER | PAGE 20