Hensarling v. Carmichael

FILED IN
2025 Tex. Bus. 50 BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
12/18/2025
=)

The Business Court of Texas,
Fourth Division

SANDRA E. HENSARLING §
§
Plaintiff
§ Cause No. 25-BC04B-0014
y
§
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

ql 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
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.

I. The suit falls within the court's jurisdictional scope.

q2 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.

q3 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 of the thing originally sued for." Tune v. Tex. Dep't of Pub. Safety, 23 S.W.3d

358, 361 (Tex. 2000) (emphasis in original). Accordingly, "actions in which

damages were not sought nevertheless could satisfy jurisdictional amount-in-

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controversy minimums. SafeLease Ins. Servs. LLC v, Storable, Inc., 2025 Tex.
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Bus. 6, 7 12, 707 S.W.3d 130, 134 (8rd Div. 2025).

q4 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).

q5 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.

q6 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
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).

q7 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

qs 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.

q9 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.

q10 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.

qli 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.

qi3 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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qi4 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 relief based on her pleaded allegations, taken as true, together

with inferences reasonably drawn from those allegations. See id.

q15 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.

q16 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.

q17 "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.). "If nothing 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).

qs 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.

q19 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 of Connemara 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.

q20 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.

q21 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,

2026.

SO ORDERED.

STACY GERS@HARP
Judge of€he Texas Business Court,
Fourth Division

SIGNED ON: December 18, 2025

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