Hensarling v. Carmichael, 2025 Tex. Bus. 50 (4th Div.) (mem. op.)

FILED IN
BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
12/18/2025
ql
2025 	Tex. 	Bus. 	50
=)
The 	Business 	Court 	of 	Texas,
Fourth 	Division
SANDRA 	E. 	HENSARLING 	§
Plaintiff §
y Cause 	No. 	25-BC04B-0014	§
§
J. 	GEORGE 	CARMICHAEL, 	CDC/VIC 	§
PARTNERS, 	LLC, 	J. 	GEORGE
CARMICHAEL, 	AS 	TRUSTEE 	OF
THE 	CARMICHAEL 	DEVELOPMENT 	§
CO., 	INC. 	PROFIT 	SHARING 	PLAN,
AND 	TRUST, 	AND 	NORTHGLEN,
LTD
§
§
§
§
§
Defendants 	§
MEMORANDUM 	OPINION 	AND 	ORDER
Before 	the 	court 	is 	the 	Rule 	91a 	Motion 	to 	Dismiss filed 	by 	Defendants
CDC/VIC 	Partners, 	LLC 	(the 	General 	Partner") 	and 	Northglen, 	Ltd.
("Northglen") 	on 	November 	6, 	2025, 	and 	amended 	on 	November 	10, 	2025; 	the
Joinder 	in 	Amended 	Rule 	91a 	Motion 	to 	Dismiss 	filed 	by 	Defendant 	Carmichael,
individually 	and 	as 	Trustee 	of 	the 	Carmichael 	Development, 	Co., 	Inc. 	Profit
Sharing 	Plan 	and 	Trust, 	on 	November 	11, 	2025; 	Plaintiff 	Hensarling's 	Notice 	of
Nonsuit 	without 	Prejudice, 	filed 	on 	December 	8, 	2025; 	and 	the 	parties' 	briefs
regarding 	subject-matter 	jurisdiction, 	filed 	on 	December 	12, 	2025. 	The 	court 	held

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a 	hearing 	on 	Defendants' 	amended 	motion 	("the 	Motion") 	on 	December 	10, 	2025.
Considering 	the 	Motion, 	pleadings, 	briefing, 	arguments 	of 	counsel, 	and 	applicable
law, 	the 	Court 	holds 	it 	has 	subject-matter 	jurisdiction 	of 	this 	suit 	and 	denies 	the
Motion 	to 	Dismiss.
Though 	Defendants' 	Motion 	does 	not 	challenge 	this 	court's 	subject-matter
jurisdiction, 	Hensarling's 	counsel 	raised 	a 	jurisdictional 	question 	at 	the 	hearing,
prompting 	the 	court 	to 	invite 	post-argument 	briefing 	on 	the 	issue.
In 	analyzing jurisdiction, 	"the 	plaintiff's 	pleadings 	are 	determinative 	unless
the 	defendant 	specifically 	alleges 	that 	the 	amount 	was 	pleaded 	merely 	as 	a 	sham
for 	the 	purpose 	of 	wrongfully 	obtaining 	jurisdiction, 	or 	the 	defendant 	can 	readily
establish 	that 	the 	amount 	in 	controversy 	is 	insufficient[.] 73
Bland 	ISD 	v. 	Blue, 	34
S.W.3d 	547, 	554 	(Tex. 	2000); 	see 	ET 	Gathering 	& 	Processing 	LLC 	v. 	Tellurian
Prod. 	LLC, 	2025 	Tex. 	Bus. 	11, 	0 	9, 	7709 	S.W.3d 	1, 	5 	(11th 	Div. 	2025) 	("in 	absence
of 	proof 	of 	fraud 	or 	a 	sham 	pleading, 	the 	allegations 	in 	the 	pleadings 	control 	to
determine 	whether 	this 	court 	has 	jurisdiction 	to hear 	this 	case."). 	The 	amount-in-
controversy 	threshold 	can 	be 	satisfied 	based 	on 	either 	"the 	sum 	of 	money 	or 	the
value 	ofthe 	thing 	originally 	sued 	for." 	Tune 	v. 	Tex. 	Dep't 	ofPub. 	Safety, 	23 	S.W.3d
358, 	361 	(Tex. 	2000) 	(emphasis 	in 	original). 	Accordingly, 	"actions 	in 	which
I. 	The 	suit 	falls 	within 	the 	court's 	jurisdictional 	scope.
damages 	were 	not 	sought 	nevertheless 	could 	satisfy 	jurisdictional 	amount-in-
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controversy 	minimums. 77
SafeLease 	Ins. 	Servs. 	LLC 	v, 	Storable, 	Inc., 	2025 	Tex.
Bus. 	6, 	7 	12, 	707 	S.W.3d 	130, 	134 	(8rd 	Div. 	2025).
Hensarling's 	petition 	alleges 	the 	suit 	falls 	within 	the 	court's 	jurisdiction
because 	the 	action 	concerns 	the 	entities' 	governing 	documents 	and 	governance, 	is
between 	the 	entities' 	co-owners, 	and 	arises 	out 	of 	the 	Texas 	Business
Organizations 	Code. 	She 	pleads 	that 	more 	than 	five 	million 	dollars 	is 	in
controversy 	and, 	upon 	information 	and 	belief, 	that 	Northglen 	has 	a 	fair 	market
value 	above 	ten 	million 	dollars. 	Her 	pleading 	seeks 	no 	monetary 	damages; 	instead,
she 	requests 	equitable 	relief 	and 	declarations 	involving 	court-ordered 	dissolution
of 	Northglen. 	Though 	Hensarling 	pleads 	that 	she 	owns 	only 	49.5% 	of 	Northglen,
her 	requested 	relief 	is 	not 	limited 	to 	her 	minority 	share 	of 	the 	entity-she 	seeks
dissolution 	of 	the 	entire 	partnership. 	See 	SafeLease 	Ins. 	Servs., 	2025 	Tex. 	Bus. 	6,
q 	12 	n.18 	(denying 	remand 	where 	plaintiff 	alleged 	the 	"action 	puts 	at 	risk 	the
entire 	$140 	million 	value 	of 	its business," 	despite 	no 	claim 	for 	damages).
As 	pleaded, 	the 	action 	sues 	on 	rights 	that 	are 	valued 	above 	five 	million
dollars, 	despite 	seeking 	no 	monetary 	relief. 	This 	suit 	falls 	within 	the 	court's
jurisdictional 	scope.
II. 	Hensarling's 	nonsuit 	does 	not 	prevent 	the 	court 	from 	ruling 	on 	the 	Motion.
Hensarling 	filed 	a 	nonsuit 	two 	days 	before 	the 	hearing, 	attempting 	to
dismiss 	all 	claims 	without 	prejudice 	to 	refiling 	in 	state 	district 	court. 	But 	Rule 	91a
mandates 	that 	the 	court 	"must 	rule" 	on 	a 	motion 	to 	dismiss 	unless 	the 	respondent

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files 	a 	pleading 	amendment 	or 	nonsuit 	at 	least 	three 	days 	before 	the 	hearing. 	See
Trex. 	R. 	Civ. 	P. 	91a.5.; 	id. at 	R. 	4 	(specifying 	that 	weekends 	days 	may 	not 	be
counted 	in 	computing 	deadlines 	of 	less 	than 	five 	days).
Hensarling 	concedes 	her 	nonsuit 	was 	not 	filed 	in 	time 	to 	prevent 	the 	court's
ruling, 	and 	Defendants 	decline 	to 	waive 	Rule 	91a's 	timing 	provision. 	Accordingly,
the 	court 	must 	issue 	a 	ruling 	on 	the 	merits 	of 	their 	Motion. 	Id.; 	see 	Hous. 	v. 	State
Farm 	Mut. 	Auto. 	Ins. 	Co., 	712 	S.W.3d 	707, 	714 	(Tex. 	App.-Hous. 	[14th 	Dist.]
2025, 	no 	pet.).
Ill. 	Hensarling's 	petition 	survives 	Rule 	91a 	dismissal
A. 	Rule 	91a 	Motion 	Standard
A 	motion 	under 	Texas 	Rule 	of Civil 	Procedure 	91a 	seeks 	dismissal 	of a 	claim
"on 	the 	grounds 	that 	it 	has 	no 	basis 	in 	law 	or 	fact." 	TEX. 	R. 	CIv. 	P. 	91a.1. 	A 	claim
lacks 	basis 	in 	law 	"if 	the 	allegations, 	taken 	as 	true, 	together 	with 	inferences
reasonably 	drawn 	from 	them, 	do 	not 	entitle 	the 	claimant 	to 	the 	relief 	sought." 	Id.
A 	claim 	lacks 	basis 	in 	fact 	"if 	no 	reasonable 	person 	could 	believe 	the 	facts
pleaded." 	Id.
To 	survive dismissal, 	the 	plaintiff 	must 	satisfy 	Texas's 	notice-pleading
rules. 	In 	re 	First 	Reserve 	Mgmt., 	L.P., 	671 	8.W.3d 	653, 	662 (Tex. 	2023). 	Beyond
giving 	fair 	notice 	of the 	claims 	themselves, 	the 	petition 	must 	contain 	"the 	essential
factual 	allegations 	supporting those 	claims, 	which 	must 	be 	sufficient 	to 	support 	a
judgment 	if ultimately 	proven. 	Id. 	(internal 	quotations 	omitted).
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B. 	The 	court 	will 	not 	consider 	Defendants' 	Exhibits 	B 	or 	C.
Defendants 	attach 	three 	exhibits 	as 	evidentiary 	support 	for 	their 	Motion, 	but
the 	court 	will 	consider 	only 	the 	Motion's 	Exhibit 	A, 	the 	2001 	Northglen
Partnership 	Agreement, 	in 	reaching 	its 	ruling.
The 	court 	may 	not 	consider 	evidence 	to 	decide 	a 	Rule 	91a 	motion, 	basing 	its
ruling 	"solely 	on 	the 	pleading 	of 	the 	cause 	of 	action, 	together 	with 	any 	pleading
exhibits 	permitted 	by 	Rule 	59." 	TEx. 	R. 	Civ. 	P. 	91a.6. 	Rule 	59 	permits 	that
"written 	instruments, 	constituting, 	in 	whole 	or 	in 	part, 	the 	claim 	sued 	on" 	may 	be
"made 	a 	part 	of the 	pleadings 	by 	copies 	thereof, 	or 	the 	originals, 	being 	attached 	or
filed 	and 	referred 	to 	as 	such." Jd. 	at 	R. 	59.
The 	court 	may 	not 	consider 	the 	Motion's 	Exhibits 	B 	or 	C, 	which 	are 	neither
referenced 	in 	Hensarling's 	petition 	nor 	attached 	to 	her 	pleading. 	However,
Hensarling 	expressly 	sues 	on 	Northglen's 	August 	30, 	2001 	Partnership
Agreement 	and 	relies 	upon 	it 	in 	her 	petition. 	Defendants 	attached 	that 	Agreement
as 	Exhibit 	A 	to 	their 	Motion 	and 	Hensarling 	presented 	no 	basis 	for 	its 	exclusion
under 	Rule 	59, 	so 	the 	Agreement 	will 	be 	made 	part 	of 	her 	petition 	and 	considered
in 	ruling 	on 	Defendants' 	Motion.
C. 	Hensarling's 	petition 	does 	not 	lack 	basis 	in 	law 	or 	fact.
Hensarling's 	application 	for 	winding 	up 	Northglen 	hinges 	on 	Texas
Business 	Organizations 	Code 	section 	11.314. 	Hensarling 	also 	pleads 	for 	a
declaratory 	judgment 	and 	associated 	attorneys' 	fees 	as 	to 	Northglen's 	dissolution.
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Defendants 	do 	not 	argue 	that 	"no 	reasonable 	person 	could 	believe 	the 	facts
pleaded" 	by 	Hensarling; 	her 	claims 	do 	not 	lack 	basis 	in 	fact. 	See 	TEX. 	R. 	CIV. 	P.
91a.1. 	Their 	Motion 	instead 	insists 	Hensarling's 	claims 	lack 	basis 	in 	law 	because
she 	is 	not 	entitled 	to 	reliefbased 	on 	her 	pleaded 	allegations, 	taken 	as 	true, 	together
with 	inferences 	reasonably 	drawn 	from 	those 	allegations. 	See 	id.
Section 	11.314 	allows 	a 	court 	to 	wind 	up 	a 	partnership 	if 	its 	economic
purpose 	is 	likely 	to 	be 	unreasonably 	frustrated 	or 	if it 	is 	not 	reasonably 	practicable
to 	carry 	on 	partnership 	business 	in 	conformity 	with 	the 	entity's 	governing
documents 	or 	due 	to 	an 	owner's 	conduct. 	TEX. 	BUS. 	ORG. 	CODE 	§ 	11.314. 	According
to 	Hensarling's 	petition, Carmichael 	made 	major 	partnership 	expenditures 	that 	he
claimed 	required 	her, 	in 	turn, 	to 	make 	capital 	contributions 	in 	contravention 	of
the 	Agreement. 	Despite 	demanding 	a 	capital 	contribution 	rather 	than 	a 	partner
loan 	from 	her, 	Carmichael 	himself 	then 	made 	a 	large, 	high-interest 	loan 	to
Northglen. 	Further, 	she 	alleges, 	Carmichael 	erroneously 	valued 	Northglen 	and
stonewalled 	during 	negotiations 	for 	a 	potential 	buy-out 	of her 	partnership 	interest
while 	refusing 	her 	access 	to 	Northglen's 	financial 	information. 	Hensarling 	relies
on 	the 	2001 	Agreement 	as 	Northglen's 	governing 	document 	and 	pleads 	that
Carmichael 	is 	Northglen's 	co-owner 	whose 	conduct 	makes 	carrying 	on business 	no
longer 	reasonably 	practicable.
The 	original 	Partnership 	Agreement 	describes 	the 	purposes 	of 	Northglen
broadly: 	to 	acquire, 	hold, 	and manage 	real 	property, 	which 	encompasses 	borrowing
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funds, 	making 	and 	performing 	on 	contracts, 	paying 	expenses, 	and 	doing 	"all 	such
other 	acts 	and 	things 	as 	the 	General 	Partnership 	may 	deem 	necessary 	and
expedient 	for 	those 	purposes. 	Mot. 	Ex. 	A. 	The 	Agreement 	generally 	specifies 	that
Northglen 	should 	be 	funded 	by 	third-party 	loans 	and 	that 	partners 	shall 	not 	be
obligated 	to 	make 	additional 	capital 	contributions, 	while 	providing 	for 	"optional
loans" 	from 	the 	partners 	under 	specified 	conditions. 	The 	Agreement 	outlines 	the
circumstances 	under 	which 	partners 	are 	entitled 	to 	distributions 	and 	to
partnership 	books 	and 	records.
"When 	applying 	the 	fair-notice 	pleading 	standard 	to 	our 	review 	in 	a 	Rule
91a 	context, 	we 	must 	construe 	the 	pleadings 	liberally 	in 	favor 	of the 	plaintiff, 	look
to 	the 	pleader's 	intent, 	and 	accept 	as 	true 	the 	factual 	allegations 	in 	the
pleadings[.]" 	Davis 	v. 	Homeowners 	of Am. 	Ins. 	Co., 	00 	S.W.3d 	837, 	844 (Tex.
App.-Dallas 	2023, 	no 	pet.). 	"Ifnothing 	in 	the 	pleading 	itself triggers 	a 	clear 	legal
bar 	to 	the 	claim, 	then 	there 	is 	a 	basis 	in 	law 	and 	the 	motion 	should 	be 	denied." 	Id.
(internal 	brackets 	omitted).
While 	deadlock 	may 	in 	some 	circumstances 	justify 	involuntary 	dissolution,
mere 	discord 	among 	an 	entity's 	ownership 	does 	not. 	Shannon 	Med. 	Ctr. 	v. 	Triad
Holdings IIT, 	L.L.C., 	601 	S.W.3d 	904, 	917 	(Tex. 	App.-Houston 	[14th 	Dist.] 	2019,
no 	pet.); 	see 	Holdridge 	v. 	Wallace 	Ryne, 	O.D., 	P.C., 	No. 	02-23-00420-CV, 	2024
WL 	3455838, 	at 	*18 	(Tex. 	App.-Fort 	Worth 	July 	18, 	2024, 	no 	pet.) 	(mem. 	op.)
("Given 	Texas's 	longstanding 	commitment 	to 	the 	promotion 	of 	economic
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development 	and 	the 	freedom 	of contract, 	courts 	are 	loath 	to 	shut 	down 	profitable,
contract-governed 	businesses 	by 	judicial 	fiat."). 	Hensarling 	does 	not 	plead 	that
Northglen's 	partners 	are 	in 	deadlock. 	But 	her 	petition, 	construed 	liberally 	and
accepting 	all 	reasonable 	inferences 	in 	her 	favor, 	claims 	that 	Northglen's
contractual 	purposes 	cannot 	be 	accomplished 	in 	conformity 	with 	the 	Agreement's
terms 	and 	due 	to 	Carmichael's 	conduct. 	Hensarling 	pleads 	the 	reasonable
impracticability 	of 	carrying 	on 	business 	under 	current 	circumstances, 	and 	the
court 	cannot 	conclude 	that 	Hensarling's 	petition 	contains 	"facts 	that 	defeat 	[her]
claims 	under 	settled 	law." 	See 	Davis, 	700 	S.W.3d 	at 	844. 	Especially 	given 	her
allegations 	regarding 	a 	lack 	of 	access 	to 	Northglen's 	books 	and 	records, 	the 	court
holds 	that 	she 	has 	provided 	sufficient 	factual 	allegations 	to support 	her 	claims 	at
this 	early 	stage 	of the 	case. 	See 	In 	re 	First Reserve 	Mgmt., 	L.P., 	671 	S.W.3d 	at 	662.
In 	written 	and 	oral 	arguments, 	Defendants 	rely 	upon 	Northglen's 	2005
amended 	partnership 	agreement, 	which 	describes 	Northglen's 	purpose 	more
narrowly 	than 	the 	original 	agreement 	and 	also 	purports 	to 	bar 	a 	winding 	up 	of the
partnership 	without 	all 	partners' 	consent 	if the 	entity 	is 	obligated 	on 	certain 	types
of 	debt. 	Mot. 	Ex. 	B. 	But 	neither 	the 	amended 	agreement nor the 	cited 	debt
obligations 	are 	mentioned 	in 	or 	attached 	to 	Hensarling's 	petition. 	This 	purported
bar 	against 	dissolution 	could 	not 	be 	proven 	without 	evidence 	of 	the 	debt
obligations 	that 	Defendants 	concede 	lie 	outside 	of 	the 	Rule-9la 	record.
Defendants' 	argument 	that 	Hensarling's 	relief 	is 	contractually 	barred 	relies 	on
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extrinsic 	evidence 	and 	accordingly 	"seems 	fit 	for 	a 	summary 	judgment 	motion 	.
thus, 	they 	may 	present 	their 	contentions 	under 	summary 	judgment 	standards"
rather 	than 	under 	Rule 	91a. 	See Longhorn 	Creek 	Ltd. 	v. 	Gardens 	ofConnemara Ltd.,
686 	S.W.3d 	418, 	426 	(Tex. 	App. 	Dallas 	2024, 	pet. 	filed). 	Based 	on 	the 	narrow
Rule 	91a 	record 	before 	the 	court, 	the 	Motion 	must 	be 	denied.
D. 	The 	court 	declines 	to 	award 	fees.
Rule 	91a 	permits, 	but 	does 	not 	require, 	an 	award 	of 	attorneys' 	fees 	to 	the
party 	who 	prevails 	on 	the 	motion 	to 	dismiss. 	TEX. 	R. 	CIv. 	P. 	91a.7; 	see 	Sanchez 	v.
Striever, 	614 	S.W.3d 	233, 	248 	n.10 	(Tex. 	App. 	Houston 	[14th 	Dist.] 	2020, 	no
pet.) 	("any 	award 	of 	fees 	and 	costs 	is 	discretionary, 	not 	mandatory"). 	The 	court
declines 	to 	award 	fees 	or 	costs 	to 	Hensarling.
For 	these 	reasons, 	Defendants' 	Amended 	Motion 	to 	Dismiss 	is 	DENIED.
The 	parties 	are 	ORDERED 	to 	confer 	with 	each other 	and 	then 	file 	a 	jomt 	proposed
scheduling 	order 	using 	the 	form 	provided 	on 	the 	court's 	website 	by 	January 	7,
GERS@HARP
Judge 	of€he 	Texas 	Business 	Court,
Fourth 	Division
2026.
SO 	ORDERED.
STACY
SIGNED 	ON: 	December 	18, 	2025
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