1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

________________ NO. 09-20-00116-CV



### ________________ DANIEL V. TRAVIS AND TRAVI S BROTHERS BUILDING AUTOMATION TEXAS, LLC, Appellants
V. TOMMY TRAVIS, Appellee

___________________ __________________ __________________ _________________ On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-201,895

___________________ __________________ __________________ _________________ MEMORANDUM OPINION Daniel V. Travis and Travis Brot hers Building Automation Texas, LLC (collectively, “Appellants”) appeal the tr ial court’s order granting Tommy Travis’s motion for traditional summary judgment. 1 In three issues, Appellants complain that the trial court: (1) abused its discretion in overruling their objections to Tommy’s summary judgment evidence, which constitute d harmful error; (2) erred in granting

1 For clarity, we use Daniel Travis and Tommy Travis’s first names.2 summary judgment and involuntarily winding up Travis Brothers Building Automation Texas, LLC (“the Co mpany”) as a matter of la w; and (3) erred in finding Tommy and Daniel each have a fifty percent ownershi p interest in the Company as a matter of law. Because genuine issues of material fact re main, we reverse and remand.
I. BACKGROUND A. Company Formation and Litigation In 2007, brothers Daniel and Tommy formed the Compa ny. An Operating Agreement executed by the brot hers governed the Company’s business. Article 2 of the Operating Agreement provided that “[t] he Members initially shall contribute to the Company capital as described in Exhi bit 3 attached to this Agreement. The agreed value of such property and cash is $11,000.” It further provided that “the description and each individual portion of this capital contribution is as follows” and shows Daniel providing $6,000 and Tommy providing $5,000. The Operating Agreement allocated the Comp any’s profits and losses to the Members in proportion to each Member’s relative capital interest in the Company. According to the Operating Agreement, the Members voted on Managers, and while both brothers were initially named Managers, Daniel was elected Chief Executive Manager (“CEM”) and had the “primary responsib ility for managing the operations of the Company and for effectuating the decisi ons of the Managers.” The Operating3 Agreement also provided that “[b]y a vote of the Members holding a majority of the capital interests in the Company as set fort h in Exhibit 2, as amended from time to time, shall elect so many Managers as the Members determine[.]” On June 11, 2018, Tommy filed his Original Petition for Dissolution and Application for Temporary Restraining Orde r and Injunctive Relief, naming Daniel and the Company as defendants. In his petition, Tommy al leged he and Daniel each had a fifty percent ownershi p interest, were e qual Managers, and that Daniel was appointed CEO. In his petition, Tommy furt her sought a court order dissolving the Company “because actions by Defendant Daniel Travis ha s caused and continue to cause substantial damages to the Plaintiff[,]” and “because there is a deadlock within the [C]ompany” between the pa rties due to discord and dist rust for which there is no expectation of resolution. Tommy complained that Daniel attempted to lock him out of the Company, removed him as a signe r from their bank account, and reduced his responsibilities by naming him as Fleet Coor dinator. Tommy contends that as a Manager, he has the right to be involved in the Comp any’s daily operation, and Daniel attempted to prevent him from do ing so. He sought dissolution pursuant to Texas Business Organizations Code section 11.051 and aske d the court to supervise the winding up of the Company, appoint a receiver, and appoint an accountant pursuant to section 11.054(3). See Tex. Bus. Orgs. Code Ann. §§ 11.051 (listing events requiring winding up of domes tic entity), 11.054(3) (outlining court4 supervision of domestic entity winding up). Tommy also applied for temporary and permanent injunctive relief pursuant to Te xas Civil Practice and Remedies Code section 65.011. See generally Tex. Civ. Prac. & Rem. C ode Ann. § 65.011 (outlining circumstances when a writ of injunction ma y be granted). Tommy’s requested relief included: a) the Company’s dissolution; b) appointment of a receiver to carry out the Company’s operations during dissolution pro cess; c) appointment of an accountant to determine the appropriateness of the wit hdrawal of Company funds; d) attorneys’ fees; e) costs; and f) temporary injunc tion. On the same day Tommy filed his petition, the trial court signe d a Temporary Restraining Order. Tommy subsequently filed a Motion to Appoint a Receiver. Appellants answered with a general de nial and challenged Tommy’s claims he owned fifty percent of the Company. Daniel claimed that the Company’s Operating Agreement showed he owne d 6/11ths or 54.55% and Tommy owned 5/11ths or 45.45% based on their initial capita l contribution. Daniel asserted that because he owned a majority interest in the Company, no deadlock existed in the Company’s management, and receiver ship was not authorized under the circumstances. B. Summary Judgment Record On February 24, 2020, Tommy filed his Traditional Motion for Summary Judgment and Request for a Court Appointed Person to Carry Out the Winding Up5 of the Company. 2 Tommy argued that Texas Busine ss Organizations Code section 11.314 gave the court the jurisdiction to wind up the Company. Specifically, Tommy argued the Code authorizes winding a company up because: 1) the economic purpose

2 On the same day, Appellants filed an Objection to Entry of Receivership Order, asserting that Daniel claimed a 6/11 or 54.55% ownership in the Company and Tommy owned 5/11 or 45.45% of the Company. In its objection, Appellants argued that the trial cour t conducted evidentiary hear ings on Tommy’s Motion to Appoint Receiver on November 2, 2018 and April 4, 2019, at the conclusion of which, the trial court announced it would appoint a receiver “because the Court believed that the management of the [C]ompany was dead locked[,]” noting it relied on Tommy’s testimony that he made nonmone tary contributions that increased his ownership to 50% and the Company’s tax re turns. The trial court didn’t reduce its oral announcement to a written order. Appe llants alleged that in December 2019, Tommy “stole a significant amount of mone y from [the Company].” Appellants then explained in response to Tommy’s action, they filed counterclaims to recover the “stolen money.” Appellants al leged that in response to the countercl aims, Tommy requested a hearing to enter the order appoi nting a receiver. In their Objection to Entry of a Receivership Order, Appellants argued that a rehabilitating receiver could be appointed pursuant to Texas Business Or ganizations Code section 11.404 and that a liquidating receiver could be appointed pursuant to section 11.405. While a deadlock of management could justify a ppointing a receiver to rehabilitate the Company, it does not authorize a court to a ppoint a receiver to liquidate a company’s assets. Appellants also argued that prior to ordering a company’s assets liquidated and appointing a receiver for that purpose under section 11.405, the court must determine “that all other available legal and equita ble remedies, including the appointment of a receiver for specifi c property of the domestic entity and appointment of a receiver to rehabilitate the domestic entity are inadequate.” They further contended that Tomm y failed to satisfy the elem ents of appointment of a receiver pursuant to section 11.404 and specifically challenged that a deadlock existed. On February 20, 2020, the tr ial court conducted another hearing on appointing a receiver. In that hearing, the trial court requested additional briefing on setting a bond and appointing a receiver under sections 11.404 and 11.405. However, instead of proceeding on the question of a ppointing a receiver, Tommy then filed his Traditional Motion For Summary Judgment and asked the trial court to involuntarily dissolve the Company.6 of the Company is likely to be frustra ted; 2) defendant’s conduct has made it impracticable to carry on business with the defendant; and 3) the defendant’s actions made it not reasonably practicable to carry on the Company’s business in conformity with the Company’s governing documents. See Tex. Bus. Orgs. Code Ann. § 11.314. Tommy also requested the court appoint someone to wind up the Company pursuant to section 11.054 of the Texas Business Organizations Code. See id. § 11.054. Tommy’s summary judgment evidence included his Original Petition and Application for TRO, a statement from American Express showing charges from July 2013 to March 2015, a federal tax lien notice agai nst the Company from 2017 and 2018 totaling $580,289.19, the Company Op erating Agreement, a letter dated May 15, 2018 from Daniel to Post Oak Bank requesting that Tommy be deleted as a person authorized to sign on the acco unt, an email from a former employee explaining why she decided to leave her job, and an email from Daniel to Tommy dated May 17, 2018, regard ing his new role as Fleet Coordinator. Appellants filed their response to the summary judgment motion. The evidence filed with their response incl uded the affidavit of Company Controller Jessie Travis, 3 the Company Operating Agreement, Jessie’s CV, Company Reconciliation of Partners’ Capital Accounts, and certified copies of federal tax lien

3 Jessie is not related to the brothers. Fo r purposes of clarity we refer to her by her first name.7 releases. In their response, they cont ended there was no evidence to support a statutory winding up and dissolution pursua nt to section 11.314. They also argued there was not any competent evidence that the economic purpose of the entity was likely to be unreasonably frustrated, that another owner had engaged in conduct relating to the entity’s business that made it impractical to ca rry on the Company’s business, or that it was not reasonably pr acticable to carry on the entity’s business in conformity with the Company’s gover ning documents. In the alternative, Appellants asserted that at a minimum, their summary judgment evidence created fact issues on those questions. For exampl e, Appellants pointed to the Operating Agreement, which shows Tommy contribut ed $5,000 of the $11,000 startup capital, giving him a 45.45% ownership interest in the Company even though he claims he owns 50% of the Company. They argued Da niel owned a majority interest in the Company and could elect or remove Comp any managers as he saw fit. As the Company’s CEM, the Appellants said Daniel had the author ity to make the decisions that he made on the Company’s behalf. The Appellants also objected to Tommy’s summary judgment evidence, including th e petition for dissolution and TRO Tommy filed, arguing that the pleadings Tommy filed did not constitute summary judgment proof. They also objected to the American Express statement that shows Daniel’s expenditures and the former employee’s ema il discussing why she left the Company, relying on Texas Rules of Ev idence 802, 901, and 902.8 On March 19, 2020, the day before th e summary judgment hearing, Tommy filed a reply with exhibits and supplemen tal reply with exhibits. These replies incorporated summary judgment evidence already before the court, including Jessie’s affidavit. 4 The only new eviden ce Tommy included with his supplemental reply was a copy of the transcript of th e trial court’s April 4, 2019 evidentiary hearing on his motion to appoint a receiv er and hearing exhibits. Tommy did not request leave to file this evidence. Appe llants filed their Motion to Strike Tommy’s

4 Tommy objected to Jessie’s affidavit on two grounds, complaining it was conclusory and asserting she was not an e xpert qualified to provide the opinions she expressed in the affidavit. The trial court never ruled on Tommy’s objections. Tommy’s objections lack merit because the affidavit is neither conclusory, nor does it contain the unsupported ipse dixit of an expert witness. Jessie based her affidavit on her personal knowledge as the Comp any’s Controller. She outlines her qualifications in her affidavit and supports the statements she makes in it with the documents she relied upon, including the Company’s Operating Agreement, the account reconciliations, and the IRS release of liens. Jessie explained the Company’s records she reviewed did not show any ad ditional recorded capital contributions by Tommy in the form of cash or property. She explained why she offered the opinions that are in the affidavit, citing the Comp any’s documents. Jessie also discussed her personal knowledge of the Company’s oper ations, operations with which she was familiar given her role as Controller and her job duties in that role. See Tex. R. Civ. P. 166a(f) (requiring affidavits to be made on personal know ledge, set forth facts as would be admissible in evidence, and show affiant’s competency to testify on the matters included). When dealing with an e xpert, “the affidavit must explain the link between the facts the expert re lied upon and the opinion reached.” Starwood Mgmt., LLC v. Swaim , 530 S.W.3d 673, 679 (Tex. 2017) (citations omitted). Appellants argue that Jessie’s affidavit wa s not offered as an expert but rather as the Controller with knowledge of the Company’s ope rations and finan ces. Here, Jessie’s conclusions are supported by demonstrab le and reasoned base s and a subjective comment in an affidavit, without more, does not render the affidavit conclusory as a whole. See id. at 680.9 replies and this evidence as untimely. The trial court ove rruled all objections to the summary judgment evidence and de nied the Motion to Strike. On March 20, 2020, the tr ial court held a hearing on the motion for summary judgment. On March 23, 2020, the trial court signed on order granting Tommy’s Traditional Motion for Summary Judgment and Request for a Court Appointed Person to Carry Out the Winding Up of th e Company. The tria l court found that Tommy and Daniel each held a 50% ownership interest in the Company and “the members are unable to jointly agree on any business matters or management of the Company’s affairs, the members are unable to break the deadlock, and, as a result, Court ordered winding up of the Company is necessary and proper.” 5
II. STANDARDS OF REVIEW We review a trial court’s ruling on obj ections to summary judgment evidence under an abuse of discretion standard. See Starwood Mgmt., LLC v. Swaim , 530 S.W.3d 673, 678 (Tex. 2017) (“We review th e rendition of summary judgments de novo. But we review a trial court’s decision to exclude evidence for an abuse of discretion.”) (citations omitted) . A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Carpenter v. Cimarron Hydrocarbons

5 The trial court’s summary-judgment or der did not dispose of Appellant’s counterclaims. Subsequently, Appellants f iled a notice of nonsuit of these claims. The trial court thereafter signed on orde r dismissing these claims, making the summary-judgment order final and appealable.10 Corp. , 98 S.W.3d 682, 687 (Tex. 2002). To constitute reversible error, an appellant must show that the trial court’s substa ntive ruling was erroneous and that it was harmful, meaning it was calculated to cau se and probably did cause the rendition of an improper judgment. See City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995); see also Tex. R. App. P. 44.1(a)(1). We review a trial court’s decisi on to grant summary judgment de

novo. See Shell Oil Co. v. Writt , 464 S.W.3d 650, 654 (Tex. 2015) (citation omitted). We view the evidence in the light most favor able to the nonmovant. Id. (citing City of Keller v. Wilson , 168 S.W.3d 802, 824 (Tex. 2005)). In doing so, we indulge every reasonable inference and resolv e any doubts against the motion. See City of Keller , 168 S.W.3d at 824. “Undisputed evidence ma y be conclusive of the absence of a material fact issue, but only if reasonable people could not differ in their conclusions as to that evidence.” Buck v. Palmer , 381 S.W.3d 525, 527 (Tex. 2012) (citation omitted). When a plaintiff moves for su mmary judgment on its claim, it must establish its right to summary judgment by conclusively establishing all elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999). The movanthas the burden to show with competent summaryjudgment evidence, that no genuine issue of material fact exists, and he is entitled to summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). Once a11 plaintiff meets this burden, the burden sh ifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Smiley Dental-Bear Creek, P.L.L.C. v. SMS Financial LA, L.L.C. , No. 01-18-00983-CV, 2020 WL 4758472, at *4 (Tex. App.—Houston [1st Dist.] Aug. 18, 2020, no pet.) (mem. op.). Evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions considering all th e summary judgment evidence. Goodyear Tire & Rubber v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007). Wh en the trial court fails to specify the grounds on which it granted summa ry judgment, we must affirm if any of the summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 872–73 (Tex. 2000) (citation omitted).
III. ANALYSIS A. Issue One: Objections to Summary Judgment Evidence In their first issue, Appellants contend th at the trial court abused its discretion in overruling their objections to Tommy’s summary judgment evidence. Assuming without deciding that this evidence was admissible, and the trial court properly considered it, Tommy still failed to prove he was entitled to judgm ent as a matter of law, as explained more fully below. Genuine issues of material fact exist regarding Tommy’s ownership share in the Company and whether Tommy is entitled to have the Company involuntary dissolved, thus precluding summary judgment on this ground.12 B. Issue Two: Texas Business Organizations Code § 11.314 In their second issue, Appellants cont end that Tommy faile d to conclusively establish his entitlement to summary judgm ent on his claim seeking to dissolve the Company under section 11.314. Secti on 11.314 of the Texas Business and Commerce Code permits a district c ourt to order a Company wound up and the partnership terminated “if the court determ ines” that at least one of three exigent circumstances listed in the statute exists. CBIF Ltd. P’ship v. TGI Friday’s Inc. , No. 05-15-00157-CV, 2017 WL 1455407, at *9 (T ex. App.—Dallas Apr. 21, 2017, pet. denied) (mem. op.) (quoting Tex. Bus. Or gs. Code Ann. § 11.314). Specifically, the statute provides A district court in the county in whic h the registered office or principal place of business in this state of a domestic partnership or limited liability company is located has juri sdiction to order the winding up and termination of the domestic partners hip or limited liability company on application by an owner of the part nership or limited liability company if the court determines that: (1) the economic purpose of the entity is likely to be unreasonably frustrated. (2) another owner has engaged in c onduct relating to the entity’s business that makes it not reasonably practicable to carry on the business with that owner; or (3) it is not reasonably practicable to carry on the entity’s business in conformity with its governing documents. Tex. Bus. Orgs. Code Ann. § 11.314. “Di ssolution proceedings are equitable in nature and contested facts concerning a ba sis for dissolution are for the jury.” CBIF Ltd. P’ship , 2017 WL 1455407, at *9 (citing M.R. Champion, Inc. v. Mizell , 90413 S.W.2d 617, 618 (Tex. 1995)). At least one othe r appellate court ha s determined that a case involving dissolution pursuant to 11. 314 “presented contested fact issues that had to be resolved by the jury before th e court could determine whether dissolution was warranted.” Id. The fact that there are only tw o members and they disagree does not mean there is a d eadlock where one owns a majority interest. See, e.g., Shannon Med. Ctr. v. Triad Holdings III, L.L.C. , 601 S.W.3d 904, 917 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (discussing s ection 11.314 in partnership context and determining appellant faile d to conclusively establish it was not reasonably practicable to carry on the entity’s busin ess in conformity with the governing documents). Further, an entity can carry on its business in accordance with its governing documents despite liti gation between the members. See id. (noting same). 1. Economic Purpose of the Compa ny Likely to be Frustrated In his Traditional Motion for Summary Judgment, Tommy argued that the economic purpose of the Company is likely to be frustrated. See Tex. Bus. Orgs. Code Ann. § 11.314(1). Specifically, Tommy asserted that Daniel created a toxic work environment, used funds for inappr opriate entertainment and housing, allowed a federal tax lien to be file d, and attempted to lock Tommy out of the Company. In support of this, he points to an American Express statement with charges between 2013 and 2015 purporting to show the inappropr iate charges, a fe deral tax lien, and a former employee’s email complaining of Daniel. However, Je ssie’s affidavit and14 the documents that support it create a fact issue on whether th e Company’s purpose is likely to be frustrated. As a CPA, Jessie’ s affidavit shows that based on her duties, qualifications, and familiarity with the fi nancial conditions a nd operations of the Company, she was qualified to express opinions about the Company’s operations. She averred that she interacts with th e Company’s employees and customers and opined that the Company has sought and obtained additional profitable projects. Jessie swore that the Company is current on all its federal and st ate taxes, currently the Company has no tax liens against its pr operty, and she attached certified copies of the releases of tax liens to her affidavit. In her affidavit, Jessie attached “a true and correct c opy” of the Company Operating Agreement and explained that ba sed on that agreement, the total initial capital contribution was $11,000. Of that total, Tommy contributed $5,000 while Daniel contributed $6,000. She explained that Daniel owned 6/11 or 54.55% and Tommy owned 5/11 or 45.45% of the Compa ny, and Company records do not reflect or show any additional capital contributi ons of cash or property, testimony that contradicts Tommy’s claim asserting he c ontributed additional capital consisting of a truck and tools. The testimony of the Company’s prior Controller, Gina Crisci, from the April 4 hearing also contradi cts Tommy’s claims that he provided additional capital to the Company.15 Appellants both signed the Company’ s Operating Agreement, which Appellants included in their summary judgm ent evidence. Articl e 2 of the Company Operating Agreement outlined the Members’ initial capital contri butions and stated the “agreed value of such property and ca sh is $11,000.” It further showed Daniel providing $6,000 and Tommy providing $5,000. The Operating Agreement provided that the Members’ interests would be determ ined by their capital contributions as set forth in the agreement, which establishe d Daniel owned a 6/11 interest, and Tommy owned a 5/11 interest. Tommy’s claim that he owned 50% per income tax filings was contradicted not only by the plain lan guage of the Operating Agreement, but by Jessie’s affidavit. Jessie averred that in her role, she reviewed these documents, performed a reconciliation of the capital ac counts, determined th at the federal tax filings showing 50-50 owners hip were erroneous, and th at the tax filings were contrary to the Operating Agreement. While the summary judgment evidence does show the brothers have disputes regarding issues involving the Company’s management, genuine issue of material fact exist about the percentage ownership interests each owner has in the Company. If Daniel owns the 54.55% that he claims as reflected by the Company Operating Agreement and by Jessie’s testimony, he holds a majority ownership interest in the Company. If that is the case, there woul d not be a deadlock. Further, if it is determined that Daniel is the majority owne r in a trial, he would have the right as16 the owner of the largest inte rest in the Company to exer cise his vote to remove or add Managers, including Tommy, under Article 4.1 of the Operating agreement. Tommy argued Daniel’s actions harmed the Company, and he alleged that Daniel attempted to lock him out of th e business. As evidence to support these claims, Tommy provided American Express statements, a former employee’s email, federal tax liens, documents showing he was appointed to coordinate the Company’s fleet, and documents showing he was rem oved as an authorized signer from the Company bank accounts. Even if admissible, the American Express statement shows charges from three to five years before the lawsuit was filed. There was no conclusive evidence that those charges were relevant to the issues in the suit. In her affidavit, Jessie averred that any charges that were not legitimate business expenses are “treated as distributions to the part ner who made the char ge or received the benefit of the expenditure .” Moreover, apart from ge nerally being unhappy, the former employee’s email likewise did not pr ovide any conclusive evidence that the economic purposes of the Company were lik ely frustrated, a claim the Appellants challenged in any event with the summary judgment evidence they filed. Jessie ’s affidavit and releases of tax liens show that issues as to past taxes owed had been resolved. Further, Jessie explained that the Company was vi able and had good customers, the Company was current on its taxes, and the capital account reconciliation for the Company showed th e Company has over $250,000 in equity.17 According to Jessie’s affidavit, given th e Company’s financial condition, operations, and “its ability to seek a nd regularly obtain additional profitable and quality projects and work, the company is economically viable, and its economic purpose is not likely to be frustrated.” Viewing the evidence in the light most favorable to the nonmovant, we conclude a genuine issue of material fact existed regarding whether the Company’s economic purpose was lik ely to be frustrated. See JLB Builders, L.L.C. v. Hernandez , 622 S.W.3d 860, 864 (Tex. 2021) (outlining movant’s burden in traditional motion for summary judgment to s how no genuine issue of material fact remains); Writt , 464 S.W.3d at 654; see also Tex. R. Civ. P. 166a(c) (same); Tex. Bus. Orgs. Code Ann. § 11.314(1) (provi ding circumstance warranting involuntary winding up). 2. An Owner Engaged in Conduct Rela ting to the Entity’s Business that Makes it Not Reasonably Practicable to Carry On the Business with that Owner Appellants further contend that Tommy failed to conclusively establish that Daniel engaged in conduct relating to the entity’s business that makes it not reasonably practicable to carry on w ith Daniel as a matter of law. See Tex. Bus. Orgs. Code Ann. § 11.314(2). We agree. In his motion for summary judgment, Tommy argued it was not practicable to carry on the business, relying on the American Express statement, which shows what he asserted were inappropriate18 expenditures of Company f unds and correspondence provi ng that Daniel removed Tommy from the account at the Company’s bank, reduced Tommy’s role within the Company, and unilaterally reduced To mmy’s salary. Appellants’ evidence, however, raises fact issues on Tommy’s clai ms. In Jessie’s affidavit, she explained how non-business or personal e xpenses are treated as distributions by the individual who charged an expense to a cr edit card. Crisci’s affidavit is similar, as she explained that when the person charges something to the Company that is not a legitimate business expenses, the person ends up pa ying for the item personally. Likewise, Daniel testified that the Company’s poli cies had changed, and the Company no longer entertains customers in ways like those reflected by the statements the Company has received in the pa st from American Express. The Operating Agreement shows that based on the initial capital contributions, Daniel held the majority in terest and accordingly could have removed managers by exercising his majority vote. Moreover, the evidence shows that Daniel as the CEM was responsible for the day-to -day operations of the Company. Jessie outlined the payments Tommy continued to receive annually de spite not currently providing any services to the Company. Like wise, in her affidavit, Jessie states the Company carried on business and that “Dan Travis is not engaging in any conduct relating to the company’s business that makes it reasonably im practical to carry on[.]” To support her opinion, Jessie’s cites the Company’s improved financial19 condition since Tommy filed the suit and not es the Company is operating profitably. Viewing the evidence in the light most fa vorable to the nonmovant, we conclude that a genuine issue of material fact ex ists regarding whether Daniel’s conduct has made it impracticable to carry on the busin ess with Daniel, thus precluding summary judgment on this ground. See JLB Builders , 622 S.W.3d at 864; Writt , 464 S.W.3d at 654; see also Tex. R. Civ. P. 166a(c ); Tex. Bus. Orgs. C ode Ann. § 11.314(2). 3. Not Reasonably Practicable to Carry on the Entity’s Business in Conformity with its Governing Documents Under section 11.314(3), the final exig ent circumstance that would allow for involuntary judicial winding up of the entity is if “it is not reasonably practicable to carry on the entity’s business in conf ormity with its governing documents. ” Tex. Bus. Orgs. Code Ann. § 11.314(3). Appellants likewise argue that Tommy failed to establish his right to summary judgment under this final statutory circumstance that would allow for involuntary dissolution. In his summary judgment motion, Tommy points to the Operating Agreement and conte nds that as a Manager, he has the power to act on behalf of the Company and to control and manage the Company. He contends that the Operating Agreement lis ts both brothers as Managers and given the trial court’s prior finding of 50% owne rship by each member, Daniel’s attempts to assume full control of the Company r uns “afoul” of the Company’s Operating Agreement. Tommy asserts that the “Partie s have become deadlocked and are unable to jointly agree on any business matters or the management of the Company, which20 is the direct result of [Daniel’s] repeated attempts to lock [him] out.” Therefore, he argues he is entitled to disso lution under section 11.314(3). See id. Tommy’s argument that he is entitled to dissolution based on this subsection necessarily hinges on the trial court’s finding that the brothers each own a 50% interest. However, as disc ussed above, the Operating Ag reement appears to show that the Members’ initial capital contributi ons dictated their ownership interest, and Jessie’s affidavit supports this. If true, Da niel owns 6/11 intere st, and Tommy owns a 5/11 interest. As the Member owning the majority intere st, Daniel would have the right to vote Managers in or out as he sees fit. Further, Jessie averred that the Company continued to operate in accordance with its Operating Agreement and delineated the reasons why. At a minimum, Appellants’ evidence establishes that a genuine issue of material fact exists precluding summary judgment under section 11.314(3). See Tex. R. Civ. P. 166a(c). The trial court improperly grante d summary judgment based upon Texas Business Organizations Code section 11.314, b ecause genuine issues of material fact exist as to whether: 1) the economic purpose of the Company is likely to be unreasonably frustrated; 2) Daniel has enga ged in conduct relating to the Company’s business that makes it not reasonably practi cable to carry on the business with him; and 3) it is not reasonably practicable to carry on the Company’s business in21 conformity with its governing documents. See Tex. Bus. Orgs. Code Ann. § 11.314(1) – (3). We sustain Appellants’ second issue. C. Issue Three: Trial Court’s Finding as to Members’ Ownership Interest To support its order of dissolution, the trial court found that “the members are unable to jointly agree on any matters or th e management of the Company’s affairs, [and] the members are unable to break the deadlock.” Appellants again disputed any deadlock existed. While Tommy contended that he and Daniel each owned a 50% interest in the Company, as explaine d above, the Operating Agreement undercuts this assertion. “The profits and losses of a limited liability company shall be allocated to each member of the company on the basis of the agreed value of the contributions made by each member, as st ated in the company’s records required under Section 101.501.” Id . § 101.201. LLCs are required to keep a written statement of “ the amount of a cash contribution and a de scription and statement of the agreed value of any other contribut ion made or agreed to be made by each member” and “the dates any add itional contributions are to be made by a member[.]” Id. § 101.501(a)(7)(A)–(B). Even assuming without deciding the trial court properly considered testimony from the hearing on April 4, 2019 of Tommy and Daniel’s sister that she participated in a family meeting where her brothers discussed forming the Company and that they intended to own the business 50-50, this evidence did not conclusively establish22 the shares the parties owned in the Co mpany given the terms of the Operating Agreement and testimony that Daniel’s ca pital contribution of $6,000 made him the majority owner. During the same hearing, Dani el testified that their father gave each brother $5,000 to start the business, but he contributed an extra $1,000 in case a dispute arose between the owners of the bus iness. Daniel said that Tommy saw “the paper” with these amounts and “signed it. ” Daniel explained Tommy expected a 60- 40 or 80-20 split, and Tommy did not object to Daniel owning five or six percent more of the Company’s shares. Additiona l documents introduced in the hearing included federal tax documents, which s how each brother owns 50% of the Company. The summary judgment evidence includ es the testimony of Crisci. Crisci disputed Tommy owns the Co mpany equally with Daniel and disputed that Tommy contributed additional capita l based on providing the Co mpany tools and a truck. Crisci testified errors were made on the Company’s fede ral tax filings, specifically where the filings reflect the brothers each own 50% of the Company as the Company’s accountant made a mistake. Cris ci explained the CPA firm responsible for preparing the Company’s tax documents made the error because the accounting firm was never give n a copy of the Operating Agre ement and instead assumed the brothers each owned 50% shares in the Co mpany. In its April 4, 2019 ruling, the trial court explained that it relied on federal tax returns in finding that each brother23 held a 50% interest in the Company and on Tommy’s testimony that he contributed additional capital to the Company in the form of a truck and tools. At the summary judgment hearing and in their response to Tommy’s motion for summary judgment, Appellants disputed evidence of 50-50 ownership and deadlock with Crisci’s testimony and Jessie ’s affidavit. Crisci and Jessie testified that the federal tax documen ts were erroneous and why, and each explained the ownership interests based on the Compa ny’s Operating Agreement. Both also testified that no Company records show ed that Tommy made additional capital contributions to the Compa ny for providing the Company w ith either additional cash or property. See id. §§ 101.201, 101.501(a) (7)(A)–(B). Viewing the summary judgment evidence in the light most favorable to the nonmovant, we conclude a genuine issue of material fact exists regarding the shares each brother owns in the Company. See City of Keller , 168 S.W.3d at 824. Tommy failed to meet his burden to establish that no genuine issue of material fact remained.
See Tex. R. Civ. P. 166a(c); JLB Builders , 622 S.W.3d at 864. Simply put, the trial court erred by finding that as a matter of law each brother owns 50% of the Company and that the equal ownership resulted in a deadlock that made a “winding up of the [C]ompany” necessary a nd proper” under section 11. 314 of the Texas Business Organizations Code. We sustain issue three.24 IV. CONCLUSION Viewing the evidence in the light most favorable to the nonmovant, we conclude genuine issues of material fact remain. Accord ingly, we reverse the trial court’s order granting summary judgment and remand the matter to the trial court.
REVERSED AND REMANDED.

_______ _________________________ W. SCOTT GOLEMON Chief Justice
Submitted on November 12, 2021 Opinion Delivered April 21, 2022 Before Golemon, C.J., Kreger, and Horton, JJ.