Affirmed and Majority and Concurring Opinions filed September 30, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-03-00508-CV
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STEPHEN G. RUDISILL, RONALD B. COOLLEY, AND
SLAWOMIR Z. SZCZEPANSKI, Appellants
V.
ARNOLD WHITE & DURKEE, P.C., Appellee
_______________________________________________________
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 00-47589
_______________________________________________________
C O N C U R R I N G O P I N I O N
Texas, like most other states, affords shareholders both the right to approve transactions that are not in the usual and regular course of the corporation=s business[1] and the right to seek an appraisal remedy and fair value for their shares if they vote against such a transaction and it is nevertheless effected.[2] Texas, however, is unique in defining Ausual and regular course of business@ in a way that includes the most unusual, irregular, and extraordinary events in the life of a corporation. Texas= singular definition of this well-worn term in article 5.09(B) of the Texas Business Corporation Act[3] effectively eliminates the necessity for shareholder approval in many transactions that, in common parlance and understanding, would never be considered in the Ausual and regular course of business.@
Under Texas= unique statutory scheme, a corporation is given great latitude to structure a sale of all or substantially all of its assets in a way that does not require shareholder approval. As a result, minority shareholders are vulnerable to the actions of majority shareholders, who may freely configure a transaction effecting a fundamental corporate change in a way that avoids triggering the statutory shareholder protections. As illustrated in this case, shareholders can easily lose their ability to vote on a fundamental corporate change and their opportunity to benefit from an appraisal remedy. Although this statutory scheme may seem unfairly weighted against dissenting shareholders, this is the considered policy choice of the Texas Legislature, and we must construe the statute in accordance with the Legislature=s intent.
The Legislature=s intent, though not clear on the face of the statute, is apparent after application of the appropriate rules of statutory construction: A sale of all or substantially all of a corporation=s assets is deemed to be in the Ausual and regular course of business@ as long as the corporation engages, directly or indirectly, in some business after the sale B even if the corporation did not engage in that business before the sale.
The court is correct to conclude that appellee Arnold White & Durkee, P.C. continued to engage in business after selling substantially all of its assets, but the court need not determine whether the law firm=s passive receipt of income as a partner in the newly created Howrey Simon Arnold & White, L.L. P. (AHowery Simon@) constitutes engaging, directly or indirectly, in the legal services business. As explained below, article 5.09(B) does not require a corporation to engage in the same business after the asset sale for the transaction to qualify as one consummated in the Ausual and regular course of business.@ Because Arnold White & Durkee continued in some business after the asset sale, shareholder approval was not required for this transaction. Therefore, appellants Stephen G. Rudisill, Ronald B. Coolley, and Slawomir Z. Szczepanski (collectively referred to as the AShareholders@) cannot prevail and the court is correct to overrule the issues they raise on appeal. Though I do not embrace all of the majority=s reasoning, I respectfully concur in the court=s judgment.
Statutory Construction
Is article 5.09(B) ambiguous?
The majority does not address whether article 5.09(B) is ambiguous. As a threshold matter, the court should examine the text of the statute and determine if it is ambiguous. See In re Mo. Pac. Ry. Co., 998 S.W.2d 212, 217 (Tex. 1999). Under article 5.09, the board of directors generally has the power to sell all or substantially all of the corporation=s assets without shareholder approval only if the sale is in the usual and regular course of the corporation=s business:
A. Except as otherwise provided in the articles of incorporation and except as provided in the next sentence of this section, the sale, lease, exchange or other disposition of all, or substantially all, the property and assets of a corporation, when made in the usual and regular course of the business of the corporation, may be made upon such terms and conditions and for such considerations, which may consist in whole or in part of money or property, real or personal, including shares of any other corporation, domestic or foreign, as shall be authorized by its board of directors, without authorization or consent of the shareholders. Except as otherwise provided in the articles of incorporation, the board of directors may authorize any pledge, mortgage, deed of trust or trust indenture and no authorization or consent of the shareholders shall be required for the validity thereof or for any sale pursuant to the terms thereof.
B. A transaction referred to in this Article and in Article 5.10 of this Act shall be in the usual and regular course of business if the corporation shall, directly or indirectly, either continue to engage in one or more businesses or apply a portion of the consideration received in connection with the transaction to the conduct of a business in which it engages following the transaction.
Tex. Bus. Corp. Act art. 5.09 (emphasis added).
In 1987, the Texas Legislature added article 5.09(B), which sets forth the circumstances under which a sale of all or substantially all of a corporation=s assets is in the Ausual and regular course of business.@ See Act of April 30, 1987, 70th Leg., R.S., ch. 93, ' 25, 1987 Tex. Gen. Laws 203, 221 (codified at Tex. Bus. Corp. Act art. 5.09(B)). If a sale of all or substantially all of a corporation=s assets does not occur in the usual and regular course of its business under article 5.09(B), then article 5.10 requires the approval of the transaction by at least two-thirds of the corporation=s shareholders. See Tex. Bus. Corp. Act art. 5.09, 5.10. In this event, shareholders who do not vote their shares in favor of such a transaction and who follow the appraisal-remedy procedures outlined in article 5.12 are entitled to receive payment from the corporation for the fair value of their shares. See Tex. Bus. Corp. Act art. 5.11, 5.12. If the sale is in the usual and regular course of the corporation=s business, then shareholders do not get the benefit of any appraisal remedy. See Tex. Bus. Corp. Act art. 5.09B5.11.
The Shareholders assert that a sale of all or substantially all of a corporation=s assets is not in the usual and regular course of the corporation=s business under article 5.09(B) if the corporation does not continue in one or more of the businesses that it conducted before the asset sale. Based on the text of the statute, this construction is reasonable because article 5.09(B) uses the language Acontinue to engage in one or more businesses,@ which logically could be interpreted to mean continuing to engage in at least one business that the corporation had engaged in before the sale. See Tex. Bus. Corp. Act art. 5.09(B). Furthermore, it is reasonable to require shareholder approval and to protect dissenting shareholders with an appraisal remedy when the nature of the corporation=s business is being completely transformed.
The phrase Acontinue to engage in one or more businesses@ connotes a carrying on of the business and its activities. Indeed, looking to the plain meaning of the word Acontinue,@ it is reasonable to conclude that the Legislature did not intend a cessation of the corporation=s regular business activity but rather to keep up the activity already begun. See Webster=s Third New International Dictionary 493 (1993 ed.) (defining Acontinue@ as Ato be steadfast or constant in a course or activity : keep up or maintain esp. without interruption a particular condition, course, or series of actions@). Likewise, Aengaged in business@ has been interpreted by Texas courts to mean Aconducting, prosecuting, and continuing business by performing progressively all the acts normally incident thereto.@ York v. Dotson, 271 S.W.2d 347, 349 (Tex. Civ. App.CFort Worth 1954, writ ref=d n.r.e.) (emphasis added). Acts that are Anormally incident@ to a business are logically those which are done Ain the usual and regular course.@ The language used by the Legislature reasonably could be interpreted to mean continuing to carry on at least one business that had been conducted before the asset sale.
On the other hand, Arnold White & Durkee asserts that article 5.09(B) does not require that the corporation continue in any pre-sale business for the asset sale to be in the usual and regular course of the corporation=s business. Rather, Arnold White & Durkee argues that as long as the corporation still exists and engages in any business whatsoever, then the sale must be considered in the Ausual and regular course,@ as defined in article 5.09(B). This interpretation is also reasonable because Acontinue to engage in one or more businesses@ could be interpreted less literally to mean continuing to engage in any business, regardless of whether the corporation had engaged in that business before the asset sale.
Furthermore, in discerning the meaning of the first part of article 5.09(B), we should consider it in the context of the entire provision. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003) (stating that court interpreting a statute should read the statute as a whole and interpret it to give effect to the entire statute). Notably, under the second part of this statute (the part of article 5.09(B) not italicized above), it seems clear that application of a portion of the consideration received for the asset sale to the Aconduct of a business@ would qualify as falling within the Ausual and regular course of business@ for any business in which the corporation engaged following the sale. The lack of restriction in this related part of article 5.09(B) strongly suggests that the Legislature did not intend to impose such a requirement in this statute.
When there are at least two reasonable interpretations of the statute at issue, the provision is ambiguous, and we can and should properly rely on extratextual sources to determine its meaning. See In re Mo. Pac. Ry. Co., 998 S.W.2d at 217. Because there is an ambiguity in article 5.09(B), we must apply the recognized rules of statutory construction to determine the meaning of this provision.
Does article 5.09(B) require the corporation to continue in at least one business that it conducted before the asset sale?
In construing article 5.09(B), we should consider the Legislature=s objectives in enacting this statute, the circumstances under which the statute was enacted, and the statute=s legislative history.[4] See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). In addition, we should consider former law and similar statutory provisions as well as the consequences of the different statutory constructions under consideration. See id. In doing so, we must presume that the Legislature intended the entire statute to be effective and intended a just and reasonable result. See id.
1. The Purpose of the Appraisal Remedy and Shareholder Approval Requirement
Minority shareholders are vulnerable to abuse by the majority. See Barry M. Wertheimer, The Shareholders= Appraisal Remedy and How Courts Determine Fair Value, 47 Duke L.J. 613 (1998). In the context of a proposed sale of all or substantially all of a corporation=s assets not in the usual and regular course of the corporation=s business, many states, including Texas, protect the minority shareholders by requiring that such a transaction be approved by an affirmative vote of the shareholders and by providing for an appraisal remedy for shareholders who do not vote for such a transaction, if the transaction is nonetheless approved. See, e.g., Tex. Bus. Corp. Act art. 5.10B5.12.
The common law required unanimous shareholder consent for fundamental corporate changes. See Voeller v. Neilston Warehouse Co., 311 U.S. 531, 536 n.6, 61 S. Ct. 376, 378 n.6, 85 L. Ed 322 (1941). The common law thus allowed minority shareholders to arbitrarily block corporate changes in an attempt to gain some concession from the majority or to force a purchase of their shares at a premium. See id. When states abandoned the common-law rule in favor of statutes allowing approval of such actions by fewer than all of the shareholders, this change in the law mitigated the ability of minority shareholders to engage in nuisance or obstructionist behavior; however, it left them vulnerable to oppression by the majority. See id.; Wertheimer, 47 Duke L.J. at 614B15. As a quid pro quo to protect minority shareholders, states provided a statutory appraisal remedy. See Voeller, 311 U.S. at 536 n.6, 61 S. Ct. at 378 n.6; Wertheimer, 47 Duke L.J. at 614B15. Another purpose of the appraisal remedy is to allow shareholders to liquidate for fair value their investment in a corporation that is changing to a significantly different business, in which the shareholders do not wish to invest. See Wertheimer, 47 Duke L.J. at 615. The appraisal remedy provides minority shareholders a way to liquidate an investment that is being significantly altered against their wishes. See id.
2. The Model Business Corporation Act and Statutes Similar to the Texas Business Corporation Act
In construing article 5.09(B), it is also appropriate to consider former statutory provisions and other statutes on the same or a similar subject. See Bass v. Walker, 99 S.W.3d 877, 885 n.4 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). As the majority notes, the Texas Business Corporation Act is based on the Model Business Corporation Act. Republic Nat. Bank of Dallas v. Whitten, 383 S.W.2d 207, 212 (Tex. App.CDallas 1964), aff=d, 397 S.W.2d 415 (Tex. 1965); see also Model Bus. Corp Act (1999 Supp.). Although article 5.09(B) was not taken from the Model Business Corporation Act, this court should still consider the statutory framework of the shareholder-approval requirement and the appraisal remedy of the Texas Business Corporation Act and recognize that these provisions are based on the Model Business Corporation Act. See Tex. Bus. Corp. Act art. 5.10B5.12, Model Bus. Corp Act '' 12.01, 12.02, 13.02 (1999 Supp.). Under both Texas law and the Model Act, shareholder approval and the appraisal remedy apply when a corporation sells all or substantially all of its assets other than in the usual and regular course of its business. See Tex. Bus. Corp. Act art. 5.10B5.12, Model Bus. Corp Act '' 12.01, 12.02, 13.02 (1999 Supp.).
The relevant Official Comment to the Model Act gives the following examples of the narrow circumstances under which it would be in the usual and regular course of a corporation=s business to sell all of its assets: (1) Athe sale of a building that was the corporation=s only major asset where the corporation was formed for the purpose of constructing and selling that building,@ or (2) Athe sale by a corporation of its only major business where the corporation was formed to buy and sell businesses and the proceeds of the sale are to be reinvested in the purchase of a new business . . . .@ See Model Bus. Corp Act ' 12.01 (1999 Supp.) (official cmt.). Decisions from other jurisdictions indicate that corporations sell all or substantially all of their assets in the Ausual and regular course@ of their business only if the corporation=s business is to buy and then sell real estate, businesses, or other investments so that it is anticipated that the corporation, at one or more points, will sell all or substantially all of its assets. See Sutherland v. Kaonohi Ohana, Ltd., 776 F.2d 1425, 1427 (9th Cir. 1985) (applying Hawaii law and holding that sale of corporation=s only assetCa piece of real estateCwas in the ordinary course of the corporation=s business because the corporation was formed for the purpose of selling this asset); Huntsville Indus. Assocs., Inc. v. Cummings, 295 So. 2d 251, 255 (Ala. 1974) (stating that sale of all or substantially all of corporation=s assets occurs in Ausual and regular course of business@ when the inherent nature of the corporation=s business and the methods used to conduct that business are such that the corporation in the normal course of events sells all or substantially all of its assets and holding that sale in question was not in the usual and regular course of business because the corporation=s business was to rent real estate); Vig v. Deka Realty Corp., 143 A.D.2d 185, 186B87 (N.Y. App. Div. 1988) (holding sale of only significant asset was not in usual or regular course of corporation=s business because corporation was in the business of managing the real-estate asset in question not in the business of selling it).
In 1987, the Texas Legislature enacted a unique definition of Ausual and regular course of business@ that is not used in any other state. The only other jurisdiction with similar language in its corporate code is Louisiana, although Louisiana does not use the concept of Ausual and regular course of business@ in determining whether shareholders= approval is required or whether the appraisal remedy is available. See La. Rev Stat. Ann. ' 121 (E). In establishing this unusual statutory definition in article 5.09(B), the Texas Legislature may not have intended Ausual and regular course of business@ to have the common-law meaning that has been adopted by courts under the Model Act; nonetheless, it is appropriate for this court, in construing the meaning of the words, to consider the structure of the Texas Business Corporation Act and similar statutes at the time the Legislature enacted article 5.09(B). See Helena Chem. Co., 47 S.W.3d at 493; Bass, 99 S.W.3d at 885 n.4. A review of these contrasting statutes suggests the Texas Legislature intended a major departure in the definition of Ausual and regular course of business.@
3. Legislative History
As part of its analysis of the legislative history, the majority relies on statements made about article 5.09(B) in 1996 by a committee of the State Bar of Texas.[5] Though this learned committee may have been studying the Texas Business Corporation Act and making recommendations concerning it, the Texas Legislature did not change article 5.09(B) based on anything this committee did in 1996. There is no indication that this committee had the same membership as the committee that proposed the addition of article 5.09(B) in 1987. The statements on which the majority relies were not made by legislators, and they were made nearly a decade after the enactment of article 5.09(B). Therefore, these statements, which the majority calls Athe 1996 comment to article 5.09,@ are neither legislative history nor relevant to the statutory-construction issue at hand. See Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 380 (Tex. App.CHouston [14th Dist.] 2004, pet. filed) (holding post-enactment statements by nonlegislators are irrelevant to interpretation of ambiguous statute); see also Sullivan v. Finkelstein, 496 U.S. 617, 631, 110 S. Ct. 2658, 2667, 110 L. Ed. 2d 563 (1990) (Scalia, J., concurring in part) (stating that Apost‑enactment legislative history@ is an oxymoron and should not be considered in interpreting statutes and that even the proponents of its use limit it to statements from members of the legislative body that enacted the statute). Similarly, statements made by two of the members of the 1987 State Bar of Texas committee in an article published after the enactment of article 5.09(B) are not relevant legislative history, although the majority cites this article as additional support for its position.[6]
The majority, however, properly considers the Bill Analysis from the House Committee on Business and Commerce. This analysis states that article 5.09(B) contains language similar to section 121(E) of the Louisiana Revised Statutes in an attempt to respond to cases in other jurisdictions that have interpreted a sale of Aall or substantially all@ of a corporation=s assets too broadly. This legislative history states that Ashareholder approval is not required if a corporation engages in a business or applies any assets received from a sale in the business of the corporation.@ See House Comm. On Bus. & Comm, Bill Analysis, Tex. H.B. 418, 70th Leg., R.S. (1987). Though this legislative history can be read as favoring Arnold White & Durkee=s position, it does not specifically address whether the business engaged in after the asset sale can be a completely different one or has to be one of the businesses conducted before the transaction. Therefore, as to the issue in this case, the legislative history is not particularly clear, though it does seem to support Arnold White & Durkee=s position.
4. The Consequences of the Possible Constructions and Legislative Intent
In considering the potential consequences of the possible constructions, it is significant that the Shareholders= construction of the statute would serve the goal stated in the legislative history of avoiding an overly broad view of which asset-sale transactions trigger the statutory protections. If construed as requiring that the corporation continue in one of its prior businesses, article 5.09(B) would still prevent shareholder approval and the appraisal remedy from applying to many corporate transactions that otherwise might arguably require shareholder approval because the assets sold were crucial assets or an important business of the corporation.
Conversely, Arnold White & Durkee=s construction of article 5.09(B) would effectively eviscerate the appraisal remedy and shareholder-approval protections for shareholders of Texas corporations, providing the sale of assets was structured in a certain way. See Tex. Bus. Corp. Act art. 5.10B5.13. Arguably, all the board of directors of a corporation would have to do to avoid these statutory shareholder protections is to arrange for the corporation to continue in some businessCeven though very different from the corporation=s prior businessesCso that the corporation can Aengage in a business@ after the sale of all or substantially all of the corporation=s assets. Given the relative ease of structuring a transaction in this manner, a corporation in Arnold White & Durkee=s position could avoid triggering the statutory shareholder protections, leaving minority shareholders vulnerable to fundamental corporate change without shareholder approval or an appraisal remedy for dissenting shareholders. Though this construction of article 5.09(B) would not completely eliminate the statutory protections available to shareholders, it would seriously limit the circumstances in which they would apply.
While we presume the Legislature, in enacting article 5.09(B), intended a just, fair, and reasonable result, our overriding goal in construing this statute is to give effect to the Legislature=s intent. See City of San Antonio, 111 S.W.3d at 25 (stating that, in construing a statute, a court=s objective is to give effect to the Legislature=s intent); Young v. Del Mar Homes, 608 S.W.2d 804, 807 (Tex. Civ. App.CHouston [14th Dist.] 1980, writ ref=d n.r.e.) (stating courts should not adopt a statutory construction that is based on a presumption that the Texas Legislature intended an unfair, unjust, or unreasonable result). Despite the history and structure of the Texas Business Corporation Act, the legislative history indicates the Legislature intended to adopt a much broader definition of Ausual and regular course of business@C one that is far more expansive than the counterpart in the Model Act and that is unlike any definition recognized in Texas case law. Further, article 5.09(B) does not unequivocally require that the corporation continue forward in at least one business it conducted pre-sale, and the second part of article 5.09(B) indicates just the opposite. See Tex. Bus. Corp. Act art. 5.09(B). Having considered article 5.09(B)=s language, individually and in the context of the entire provision, together with the statutory framework of the Texas Business Corporation Act, the purposes of the appraisal remedy and shareholder-approval requirement regarding sales of all or substantially all of a corporation=s assets, the legislative history, and the consequences that would follow from the possible constructions of article 5.09(B), this statute should be construed as requiring that the corporation continue in some business after the asset sale, without regard to whether the corporation engaged in that business before the asset sale.
Arnold White & Durkee continued to engage in business after the asset sale and so that sale is deemed to be in the Ausual and regular course@ of the corporation=s business under the Legislature=s unique definition of that term in article 5.09(B). Because shareholder approval is not required for such a transaction, the consequences of this statutory construction may seem like a harsh treatment of the Shareholders, who did not approve of such a fundamental corporate change in their law firm. This result, however, is compelled by the unusual definition in this statute, unique to Texas law.
In enacting article 5.09(B), the Texas Legislature made a decision to severely limit the statutory protections afforded shareholders and to greatly diminish the rights and remedies available to them under former law. Because the statute affords corporations enormous latitude in making fundamental corporate changes without shareholder approval, the consequences may seem unfair or unjust to dissenting shareholders. But it is the Legislature=s prerogative to make these policy choices. This construction of article 5.09(B) simply reflects the Legislature=s intent.
Is it necessary to determine whether Arnold White & Durkee continued in the legal services business?
The majority finds that Arnold White & Durkee continued in the legal services business that it conducted pre-sale. This issue is certainly subject to debate. Arnold White & Durkee used to be a law firm. Its only business was the practice of law and its only purpose was to perform legal services on behalf of clients. It is no longer engaged in the practice of law,[7] and it no longer hasCor even seeksCclients.[8] Arnold White & Durkee is merely an interest holder in a new entity that engages in the practice of law. Whether obtaining and holding a partnership interest such as that held by Arnold White & Durkee in the newly created firm of Howrey Simon Arnold & White, L.L.P. constitutes Adirectly or indirectly engaging in the legal services business,@ as the majority concludes, is an interesting issue but one that this court need not reach.[9]
Conclusion
The Texas Legislature has adopted a peculiar definition of Ausual and regular course of business@ in article 5.09(B) not utilized in any other jurisdiction or recognized at common law. Under this unique definition, a corporation=s sale of all or substantially all of its assets is in the Ausual and regular course of business@ as long as the corporation continues in businessCany businessCafter the sale. Arnold White & Durkee continued in business after the sale. Accordingly, the trial court did not err in granting summary judgment based on Arnold White & Durkee=s assertion that the asset sale was in the usual and regular course of its business under article 5.09(B), and therefore, shareholder approval of the transaction was not required. Moreover, because the statutory shareholder protections in articles 5.10 and 5.12 were never triggered, the Shareholders have no appraisal remedy.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Majority and Concurring Opinions filed September 30, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman. (Hedges, C.J., majority.)
[1] See Tex. Bus. Corp. Act art. 5.10.
[2] See id., art. 5.12.
[3] See Tex. Bus. Corp. Act art. 5.09(B).
[4] Although the Code Construction Act does not apply to the Texas Business Corporation Act, the relevant common-law principles for construing the statute in this case are the same as those stated in the Code Construction Act. See Tex. Gov=t Code Ann. ' 311.002 (Vernon 1998) (stating that Code Construction Act applies only to (1) code enacted by 60th or subsequent Legislature, (2) amendment, repeal, revision, or reenactment of such a code, (3) repeal of a statute by a code, and (4) a rule adopted under a code); Dodd v. State, 650 S.W.2d 129, 130 (Tex. App.CHouston [14th Dist.] 1983, no pet.) (applying same principle as that stated in Code Construction Act to statute that court acknowledged was not covered by Code Construction Act); Harris Cty. v. Suburban Utility Co., 547 S.W.2d 72, 74 (Tex. Civ. App.CHouston [1st Dist.] 1977, no writ) (holding that Code Construction Act did not apply to statute at issue because that statute was not a code).
[5] See maj. op., ante at pp. 4B6.
[6] See maj. op, ante at n.5.
[7] Arnold White & Durkee=s remaining attorneys (shareholders and employees) no longer practice law under the auspices of Arnold White & Durkee, but instead hold themselves out as lawyers in Howrey Simon. Since the effective date of the combination, Arnold White & Durkee has been nothing more than a passive partner in Howrey Simon. Moreover, there will never be new shareholders in Arnold White & Durkee, and as existing shareholders retire, withdraw, or otherwise terminate their relationship, Arnold White & Durkee=s partnership interest in Howrey Simon is reduced by the same percentage as the departing shareholder=s equity interest in Arnold White & Durkee. Eventually, Arnold White & Durkee=s partnership interest in Howrey Simon will evanesce altogether. Arnold White & Durkee currently has no source of income other than what it receives as a Howrey Simon partner.
[8] Arnold White & Durkee does not market itself as a law firm or carry malpractice insurance. Its few remaining shareholders practice solely on behalf of Howrey Simon and Howrey Simon clients. The majority finds that Arnold White & Durkee needs no more than lawyers themselves to engage in the legal-services business. The record shows that when Arnold White & Durkee had clients, the firm used a great deal more than lawyers to engage in the legal-services business, including leasehold interests, books, computers, furniture, equipment, and many other operating assets. Though it may be technically possible to engage in the legal-services business with no operating assets, as the majority suggests, Arnold White & Durkee clearly did not do so before the asset transfer, when the firm still had clients. With no Atools of the trade@ it would seem that the firm=s few remaining lawyers and support staff would be ill-equipped to service clients even if there were some. Likewise, with no clients to consume legal services, it is questionable whether Arnold White & Durkee could, directly or indirectly, continue in the legal-services business.
[9] In some parts of its opinion, the majority also indicates that the applicable legal standard requires an inquiry into whether Arnold White & Durkee continued to exist as a corporation or is still a viable corporation after the sale. Although corporate existence is required to conduct business, corporate existence, by itself, is not sufficient to constitute doing business. In any event, the applicable statute does not require this court to determine whether Arnold White & Durkee continued to exist as a corporation or is still a viable corporation after the sale. We are to determine whether it continued in business after the sale.