Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 13th District Court Navarro County, Texas
Trial Court No. D12-21464-CV, Honorable James E. Lagomarsino,
QUINN, C.J., and CAMPBELL and PARKER, JJ.
Quinn Chief Justice
we are asked to decide whether Mark Davis, a former member of
Highland Coryell Ranch, LLC, may peruse various books and
records of the company. The parties initially broached the
issue to us via an appeal from a summary judgment favoring
Highland. See Davis v. Highland Coryell Ranch, LLC,
No. 07-15-00269-CV, 2016 Tex.App. LEXIS 3138 (Tex.
App.-Amarillo Mar. 18, 2018, pet. denied) (mem. op.). Due to
the absence from the summary judgment record of pertinent
company records, though, we were unable to provide them a
substantive answer. Id. at *4-5 (stating that
"[t]he summary judgment record before us does not
contain the 'governing documents' of Highland.
Without them, the trial court could not hold that Highland
established, as a matter of law, that Davis was unentitled to
view the records."). Upon remand, Highland filed a
second summary judgment motion. Attached to it were the
governing documents alluded to in our first opinion. The
trial court granted the motion, thereby denying Davis
opportunity to review the documents and disposing of his suit
to access them. We reverse.
of the Case
preliminary matter before us concerns the doctrine of law of
the case. Davis argues that, through our prior opinion, we
held that the statutes in play entitled him, as a matter of
law, to review the records. Thus, our purported holding
allegedly constitutes the law of the case, controls the
outcome here, and requires reversal without further comment.
doctrine of law of the case, questions of law decided on
appeal to a court of last resort generally govern the case
throughout its subsequent stages. State v. Riemer,
No. 07-18-00002-CV, 2019 Tex.App. LEXIS 1801, at *5 (Tex.
App.-Amarillo Mar. 7, 2019, no pet.). In other words, a court
of appeals is ordinarily bound by its initial decision if
there is a subsequent appeal in the same case. See
Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.
2003). Reconsideration of issues is not absolutely barred,
however. Id. Indeed, whether to apply the doctrine
is a discretionary matter. Id.; Riemer, 2019
Tex.App. LEXIS 1801, at *5. Examples of when discretion may
be exercised legitimately to forgo application of the
doctrine include situations where either the issues or facts
presented in successive appeals substantially differ from
those presented earlier, see Riemer, 2019 Tex.App.
LEXIS 1801, at *5-6, and where the prior decision was clearly
wrong. See Briscoe, 102 S.W.3d at 716-17. Highland
argues, among other things, that if we did interpret the
relevant statutes in a manner favorable to Davis, then we
were clearly wrong. That, at the very least, is a sufficient
reason to forgo the doctrine's application here. Simply
put, a wrong decision is subject to correction.
our resolution of the prior appeal revolved around whether
Highland established its entitlement to summary judgment as a
matter of law based on the summary judgment record before the
trial court. Though we alluded to statutes there that have
continued relevance here, the central debate here differs
from that there. As we observed in our initial opinion, the
statutory definitions in play here were not cited or
addressed by either party there. Davis, 2016
Tex.App. LEXIS 3138, at *3. So, the issue now before us
differs in a substantive way.
the foregoing circumstances, the doctrine raised by Davis
does not control. We may proceed to substantively address
that which neither party did previously.
Member and Business Records
Highland is a limited liability company. Furthermore, no one
disputes that Davis was one of two original members. Nor do
the litigants dispute that he relinquished his interest in
the company in 2005. Davis, 2016 Tex.App. LEXIS
3138, at *1. Furthermore, Davis requested of Highland various
business records developed by the company while he was a
member. Id. It apparently provided some but not
others, and Davis sued to obtain those that were not given
him. Highland moved for summary judgment, contending that, as
an ex-member of the business, he had no right to them. The
sole issue before us involves the right, if any, of a former
member of a limited liability company to business records of
the company. That is, can he be denied access simply because
he is not a current member of the company?
§ 101.502(a) of the Texas Business Organizations Code, a
member of a limited liability company or an assignee
of a membership interest . . . or a representative of the
member or assignee, on written request and for a proper
purpose, may examine and copy at any reasonable time and at
the member's or assignee's expense . . . [both]
records required under Sections 3.151 and 101.501 . . . and .
. . other information regarding the business, affairs, and
financial condition of the company that is reasonable for the
person to examine and copy." Tex. Bus. Orgs. Code Ann.
§ 101.502(a)(1), (2) (West 2012) (emphasis added);
Davis, 2016 Tex.App. LEXIS 3138, at *2. Section
3.153 of the same Code further provides that "[e]ach
owner or member . . . may examine the books and
records of the filing entity maintained under Section 3.151
and other books and records . . . to the extent provided by
the governing documents of the entity and the title of this
code governing the filing entity." Tex. Bus. Orgs. Code
Ann. § 3.153 (West 2012); Davis, 2016 Tex.App.
LEXIS 3138, at *2.
same Code also defines a "member" of a limited
liability company as "a person who is a member
or has been admitted as a member in the limited
liability company under its governing documents." Tex.
Bus. Orgs. Code Ann. § 1 .002(53)(A) (emphasis
be seen from these provisions, the right to peruse the
business records of a limited liability company is generally
dependent upon membership in or being a "member" of
the company. Furthermore, one is such a "member" if
he "is a member" or "has been admitted as a
member" under the company's governing documents. One
recalling lessons from high school English classes would
interpret the phrase "is a member" as denoting a
present verb tense, that is, a verb tense requiring the
person to be an existing member of the company. ...