COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00090-CV 

ARLINGTON SURGICARE 

PARTNERS, LTD. D/B/A BAYLOR 

SURGICARE AT ARLINGTON; 

JONATHAN BOND; CAROLYN 

EXLEY; BRETT BRODNAX; 

ARLINGTON ORTHOPEDIC AND 

SPINE HOSPITAL, LLC D/B/A 

BAYLOR ORTHOPEDIC AND 

SPINE HOSPITAL AT ARLINGTON, 

LTD.; BAYLOR HEALTH 

SERVICES; USP TEXAS, L.P.; USP 

NORTH TEXAS, INC.; UNITED 

SURGICAL PARTNERS 

INTERNATIONAL, INC.; TEXAS 

HEALTH VENTURES GROUP, LLC; 

THVG ARLINGTON GP, LLC; AND 

TEXAS HEALTH VENTURE

ARLINGTON HOSPITAL, LLC

APPELLANTS

V.

CFLS INVESTMENTS, LLC; JOE T. 

SOUTHERLAND, DPM; RICHARD 

ALAN CARTER, DO; JANIS R. 

CORNWELL, MD; LINNIE V. 

RABJOHN, DPM; JOHN R. 

LANDRY, DPM; FROESCHKE 

INVESTMENTS, LTD.; ZOEZY 1 

SUPERSTAR GP, LLC; THE 

WALKER GROUP, LP; WONG 

APPELLEES 
2

FAMILY HOLDINGS, LLC; 

FALLOPIAN DISASTER 

HOLDINGS, LP; MATLOCK OBGYN ASSOCIATES, PA; AND 

DAVID B. GRAYBILL, DO

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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 352-264845-13

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MEMORANDUM OPINION1

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I. INTRODUCTION

This is a permissive appeal. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 51.014(d) (West 2015); Tex. R. App. P. 28.3. We granted Appellants’ petition 

to appeal, limiting this permissive appeal to deciding “the issue of the General 

Partner’s ability to consent to the Doctor Defendants’ investment in the [Baylor 

Orthopedic and Spine Hospital at Arlington] BOSHA under the first sentence of 

Section 12.1 of the Partnership Agreement [that] presents a controlling question 

of law as to which there is a substantial ground for difference of opinion.” 

Because we hold as a matter of law that the first sentence of Section 12.01 of the 

Second Amended and Restated Agreement of Limited Partnership (Agreement) 

dated July 1, 2007, authorized the General Partner to give written consent to the 

 

1See Tex. R. App. P. 47.4.
3

Doctor Defendants to invest in BOSHA, we will reverse the trial court’s March 17, 

2015 amended order denying Appellants’ summary judgment to the limited extent 

that paragraph number 3 of the judgment denies Appellants’ motion for summary 

judgment on grounds that are based on Section 12.01 and will remand for further 

proceedings consistent with this opinion.

II. PROCEDURAL BACKGROUND

Appellants are BOSHA, Arlington Surgical Center, and various doctors and 

entities that are limited partners of Arlington Surgical Center and that 

subsequently invested in BOSHA. Appellees are limited partners of Arlington 

Surgical Center that did not invest in BOSHA. Appellees sued Appellants in part 

for allegedly violating the Agreement by investing in BOSHA. Appellants filed 

summary judgment motions asserting, in part, that their investment in BOSHA did 

not violate the Agreement because they had obtained the General Partner’s 

written consent to acquire an ownership interest in BOSHA per Section 12.1 of 

the Agreement. The trial court ruled that “while the [Agreement] gives the 

General Partner ‘sole and absolute discretion’ to withhold consent, the 

[Agreement] is silent as to the standard which should apply to the giving of 

consent,” and therefore the trial court denied “[Appellants’] summary judgment 

grounds that are based on the first sentence of Section 12.1 for this reason.” 
4

III. SECTION 12.1 OF THE AGREEMENT

Section 12.1 of the Agreement provides, in pertinent part,

12.1 Offer of Participation. Each Limited Partner (other than 

the General Partner as to any Limited Partner Units it may own) 

agrees that . . . neither the Limited Partner nor any of its Affiliates 

shall, directly or indirectly, without the prior written consent of the 

General Partner, which consent may be withheld in its sole and 

absolute discretion, acquire an ownership interest in or participate 

in the management of any (i) ambulatory surgery center or other 

licensed health care facility at which ambulatory surgery is 

performed, or (ii) short stay hospital which is identified by patient 

stays of three days or less located within fifteen (15) miles of the 

Center for so long as the Limited Partner is a Limited Partner and for 

a one (1) year period following the termination of such Limited 

Partner’s status as Partner . . . . [Emphasis added.]

IV. STANDARD OF REVIEW

When construing contracts and other written instruments, our primary 

concern is to ascertain the true intent of the parties as expressed in the 

instrument. See NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 

(Tex. App.—Fort Worth 2007, no pet.). Language used by parties in a contract 

should be accorded its plain, grammatical meaning unless it definitely appears 

that the parties’ intention would thereby be defeated. Reilly v. Rangers Mgmt., 

Inc., 727 S.W.2d 527, 529 (Tex. 1987); Coker v. Coker, 650 S.W.2d 391, 393 

(Tex. 1983). A contract cannot be interpreted in a way that renders any words or

phrases meaningless or in a way that leads to an absurd result. Seagull Energy 

E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006); Pavecon, 

Inc. v. R-Com, Inc., 159 S.W.3d 219, 222 (Tex. App.—Fort Worth 2005, no pet.). 

All of the contractual provisions must be considered with reference to the whole 
5

instrument. Coker, 650 S.W.2d at 393. If, after the pertinent rules of 

construction are applied, the contract can be given a definite or certain legal 

meaning, it is unambiguous, and we construe it as a matter of law. Frost Nat’l 

Bank v. L & F Distrib., Ltd., 165 S.W.3d 310, 312 (Tex. 2005); Fort Worth Transp. 

Auth. v. Thomas, 303 S.W.3d 850, 857–58 (Tex. App.—Fort Worth 2009, pet. 

denied). The construction of an unambiguous contract is a question of law for 

the court, which is considered under a de novo standard of review. See Tawes 

v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011).

V. APPLICATION OF THE LAW TO THE FACTS

Appellants’ sole issue in its petition for permission to appeal is whether 

Section 12.1 of the Agreement permitted the General Partner to consent to the 

Doctor Defendants’ investment in BOSHA.2 On full briefing on appeal and during 

oral argument, Appellees agreed that the General Partner has authority to grant 

consent under Section 12.1.3 Appellants and Appellees agree that Section 12.1’s 

which-consent-may-be-withheld-in-its-sole-and-absolute-discretion provision 

would be meaningless if the General Partner possesses no authority to consent. 

 

2We denied Appellees’ petition for permissive appeal; to the extent 

Appellees’ arguments relate to the issues we declined permission to appeal, we 

do not consider them in this limited permissive appeal.

3Appellees assert, 

[W]e do not say that the GP can never grant consent to the opening 

of a competing facility. Rather, we say that it does not have “sole 

and absolute discretion” to grant such consent. Under some 

circumstances, the GP might be able to consent to the opening of a 

competing facility without violating the Partnership Agreement. 
6

We likewise agree; the General Partner’s contractual right to withhold consent is 

no right at all absent the authority to consent. Cf. Seagull Energy E & P, Inc., 

207 S.W.3d at 345 (recognizing that a contract cannot be interpreted in a way 

that renders any words or phrases meaningless).

We next turn to the issue of Section 12.1’s “silen[ce] as to the standard 

which should apply to the giving of consent.” The first sentence of Section 12.1 

gives the General Partner the right to consent to the acquisition by limited 

partners of ownership interests in ambulatory surgery centers, other licensed 

health care facilities at which ambulatory surgery is performed, and short stay 

hospitals––identified by patient stays of three days or less—that are located 

within fifteen miles of Arlington Surgicenter. Section 12.1 prohibits a limited 

partner’s acquisition of such an ownership interest only if it is made “without the

prior written consent of the General Partner.” The provision states that the 

written consent “may be withheld [by the General Partner] in its sole and absolute 

discretion.” 

Given its ordinary meaning, the noun “consent” means acceptance or 

approval of what is planned or done by another, acquiescence;

4

in construing 

Section 12.1 of the Agreement according to its plain meaning, we refrain from 

superimposing standards for, or degrees of, consent that would modify the 

word’s plain meaning. See Limestone Grp., Inc. v. Sai Thong, L.L.C., 107 

 

4See, e.g., Consent, American Heritage College Dictionary (5th ed. 2015).
7

S.W.3d 793, 797 (Tex. App.—Amarillo 2003, no pet.) (declining to construe the 

word “default” as including quantifications or measurements such as “substantial” 

or “material” when the parties’ agreement merely used the word “default”); Cross 

Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.—Amarillo 2000, no 

pet.) (explaining that appellate court “cannot change the contract merely because 

we or one of the parties comes to dislike its provisions or thinks that something 

else is needed in it”). 

We have reviewed the entire Agreement. Considering Section 12.1 in 

connection with the entire Agreement and harmonizing it with the other 

provisions of the Agreement, the construction of Section 12.1 according to its 

plain meaning as set forth above is consistent with the Agreement.5 See, e.g., 

Coker, 650 S.W.2d at 393. 

Thus, applying a de novo standard, giving Section 12.1 its plain meaning,

interpreting it so as to not render any words meaningless, and considering it with 

reference to the whole Agreement, we hold that as a matter of law the General 

 

5Appellees cite Sections 10.5 and 18.2 of the Agreement as limiting the

General Partner’s right to consent under Section 12.1. No conflict or disharmony 

is generated between these two Sections and Section 12.1 by giving the term 

consent its plain meaning in Section 12.1. Moreover, because Section 12.1 is 

more narrow than Sections 10.5 and 18.2, even if a conflict existed between 

these sections, we would simply harmonize the provisions by treating Section 

12.1 as a specific exception to the more general provisions set forth in Sections 

10.5 and 18.2. See, e.g., Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133–34 

(Tex. 1994) (applying rule of construction to contract); see also Jackson v. State 

Office of Admin. Hearings, 351 S.W.3d 290, 297 (Tex. 2011) (applying rule of 

construction to statute).
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Partner possessed authority to give written consent to the Doctor Defendants’ 

investments in BOSHA. See, e.g., Tawes, 340 S.W.3d at 425; Seagull Energy E 

& P, Inc., 207 S.W.3d at 345; Frost Nat’l Bank, 165 S.W.3d at 312; Reilly, 727 

S.W.2d at 529; Coker, 650 S.W.2d at 393. We hold that the trial court erred to 

the extent it construed Section 12.1’s “silen[ce] as to the standard which should 

apply to the giving of consent” as limiting the General Partner’s ability to grant 

written consent. See Limestone Grp., Inc., 107 S.W.3d at 797 (“In short, the 

parties omitted words from the contract modifying the degree of default needed. 

Because they did, we may not now incorporate them into the agreement and 

thereby change it.”). We sustain Appellants’ sole issue.

VI. CONCLUSION

Having sustained Appellants’ sole issue and determined as a matter of law

that the first sentence of Section 12.01 of the Second Amended and Restated 

Agreement of Limited Partnership dated July 1, 2007, authorized the General 

Partner to give written consent to the Doctor Defendants to invest in BOSHA, we 

reverse the trial court’s March 17, 2015 order denying Appellants’ summary 

judgment grounds that are based on this provision and remand for further 

proceedings consistent with this opinion. 

/s/ Sue Walker

SUE WALKER

JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DAUPHINOT, J., dissents without opinion.
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DELIVERED: October 1, 2015