                                                                                       ACCEPTED
                                                                                  01-14-00370-cv
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                             4/13/2015 4:04:08 PM
                                                                              CHRISTOPHER PRINE
                                                                                           CLERK

                          No. 01-14-00370-CV

                                                                  FILED IN
                                                           1st COURT OF APPEALS
                                                               HOUSTON, TEXAS
                  IN THE COURT OF APPEALS FOR
                                                           4/13/2015 4:04:08 PM
                   THE FIRST JUDICIAL DISTRICT             CHRISTOPHER A. PRINE
                         HOUSTON, TEXAS                            Clerk




REPUBLIC PETROLEUM L.L.C. AND REPUBLIC PETROLEUM PARTNERS
                            L.P.,
                          Appellants,
                             v.
 DYNAMIC OFFSHORE RESOURCES NS L.L.C. AND W&T OFFSHORE,
    INC., SUCCESSOR BY MERGER OF OFFSHORE SHELF L.L.C.,
                          Appellees.

               Appeal from the 270th Judicial District Court
                         of Harris County, Texas

                         Oral argument requested


REPLY BRIEF OF CROSS-APPELLANTS DYNAMIC OFFSHORE RESOURCES NS L.L.C.
 AND W&T OFFSHORE, INC. SUCCESSOR BY MERGER OF OFFSHORE SHELF, L.L.C.




                                  GIEGER, LABORDE & LAPEROUSE,
                                  L.L.C.
                                  KENNETH H. LABORDE
                                  Texas State Bar No. 11786070
                                  klaborde@glllaw.com
                                  DANIEL G. RAUH
                                  drauh@glllaw.com
                                  Louisiana State Bar No. 27280
                                  (Pro Hac Vice)



                                        i
CHARLOTTE A. FIELDS
cfields@glllaw.com
Texas State Bar No. 24032175
Gieger, Laborde & Laperouse,
1177 West Loop South, Suite 750
Houston, Texas 77027
Telephone: (832) 255-6000
Facsimile: (832) 255-6001

COUNSEL FOR DEFENDANT
DYNAMIC OFFSHORE RESOURCES NS,
L.L.C.

- AND-

JOHNSON DELUCA KURISKY &
GOULD
A Professional Corporation
BRADLEY L. DELUCA
bdeluca@jdkglaw.com
Texas Bar No. 05653800
BRIGID D. ASHCRAFT
bashcraft@jdkglaw.com
Texas Bar No. 09193167
4 Houston Center
1221 Lamar, Suite 1000
Houston, Texas 77010
(713) 652-2525 – Telephone
(713) 652-5130 – Facsimile

COUNSEL FOR DEFENDANT
W&T OFFSHORE, INC., successor by
merger of OFFSHORE SHELF, L.L.C.




     ii
                                TABLE OF CONTENTS
Index of Authorities ........................................................................................iv

Statement of Facts ............................................................................................1

         SUMMARY OF ARGUMENT ..............................................................2

          I. Republic L.L.C. had no standing and/or capacity to sue or recover
            damages ..............................................................................................2

          A. Privity of contract..............................................................................2

          B. Standing and capacity........................................................................2

          C. Rule 93 verifications ........................................................................3

          D. Republic L.L.C.’s working interest ..................................................3

          E. The Charge ........................................................................................4

ARGUMENT ....................................................................................................5

          I. Privity of contract does not equate with standing .............................5

          II. The HI 115 OOA did not give Republic L.L.C. capacity to sue or
              recover damages ...............................................................................6

          III. Defendants’ rule 93 verifications were sufficient ..........................9

          IV. Republic L.L.C.’s working interest ownership is relevant ...........10

          V. Defendants did not waive any points of error ...............................12

Prayer ............................................................................................................16

Appendix ........................................................................................................16

Certificate of Compliance .............................................................................18

Certificate of Service ....................................................................................18
                                                                 iii
                                   INDEX OF AUTHORITIES

Cases

Austin Nursing Ctr. Inc. v. Lovato, 171 S.W.3d 845
(Tex. 2005) .....................................................................................................13

Byrd v. Estate of Nelms, 154 S.W.3d 149
(Tex. App. - Waco 2004, pet. denied) ............................................................14

Cecil v. Smith, 804 S.W.2d 509 (Tex. 1991) ..................................................15

Cooper v. Circle Ten Council Boy Scouts of America, 254 S.W.3d 689
(Tex. App. - Dallas 2008, no pet.) ..................................................................10

Damian v. Bell Helicopter Textron, Inc., 352 S.W.3d 124
(Tex. App. - Fort Worth 2011, pet. struck) .....................................................14

Denman v. SND Operating, L.L.C., No. 06-04-00061-CV, 2005 WL 2316177
(Tex. App. - Texarkana Sept. 23, 2005, no pet.) .......................................12,13

Fuqua v. Taylor, 683 S.W.2d 735
(Tex. App. – Dallas 1984, writ ref’d n.r.e.) ....................................................11

Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916
(Tex. App. - Houston [14th Dist.] 2014, no pet.) .............................................1

Harmon v. 1401 Elm Street Condominium Ass'n, 139 S.W.3d 411
(Tex. App. - Dallas 2004, no pet.) ..................................................................16

Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605
(Tex. 2004) .......................................................................................................5

John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645
(Tex. App. - Dallas 2013, pet. denied) ...........................................................13

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922
(Tex. 1998) .....................................................................................................14
                                                                 iv
Mekeel v. U.S. Bank Nat. Ass'n, 355 S.W.3d 349
(Tex. App. - El Paso 2011, pet. dism'd) ..........................................................10

Nauslar v. Coors Brewing Co., 170 S.W.3d 242
(Tex. App. - Dallas 2005, no pet.) ...................................................................6

Republic National Bank of Dallas v. National Bankers Life Ins. Co, 427
S.W.2d 76 (Tex. Civ. App. - Dallas 1968, writ ref’d n.r.e.) ............................5

Rhey v. Redic, 408 S.W.3d 440
(Tex. App. - El Paso 2013, no pet.) ................................................................15

Shipley v. Unifund CCR Partners, 331 S.W.3d 27
(Tex. App. - Waco 2010, no pet.) ...................................................................13

Solares v. Solares, 232 S.W.3d 873
(Tex. App. - Dallas 2007, no pet.) ............................................................15, 16

Star Enterprise v. Marze, 61 S.W.3d 449
(Tex. App. - San Antonio 2001, pet. denied) ..................................................14

State Bar v. Gomez, 891 S.W.2d 243 (Tex. 1994)............................................5

Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504
(Tex. 1995) ........................................................................................................5

T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218
(Tex. 1992) ................................................................................................14, 15

United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914
(Tex. App. - Houston [14th Dist.] 2000, pet. denied) .....................................15

Webb v. Voga, 316 S.W.3d 809
(Tex. App. - Dallas 2010, no pet.).. ..................................................................6

Rules / Statutes

Tex. R. App. P. 33.1(a) ...................................................................................10

Tex. R. App. P. 38.1(g). ....................................................................................1
                                                                  v
Tex. R. Civ. P. 93 ...........................................................................................10

Tex. Civ. Prac. & Rem. Code §132.001 .........................................................10

Other Authorities

2 McDonald & Carlson Tex. Civ. Prac. § 7:21 (2d. ed.) ................................10




                                                               vi
                           STATEMENT OF FACTS
      Republic L.L.C. did not address or controvert the following statements in

Defendants’ Appellants’ Brief, Statement of Facts:

      1.     Effective October 15, 2008, Republic L.L.C. assigned 100% of its
working interest in HI 115 to Republic L.P., removing Republic L.L.C. from any
ownership interest in HI 115. (52 RR Defs.’ Ex. 0915-0079, item F); (52 RR
Defs.’ Ex. 926); (4 RR 31); (CR 504).

      2.     Effective May 11, 2007, by various assignments, Republic L.P.
acquired all ownership interest previously held by Republic L.L.C. (52 RR Defs.’
Ex. 927); (52 RR Defs.’ Ex. 0915-0079, item G); (4 RR 44-45, 47, 51-52).

       3.    The damages sought by Republic L.L.C. did not begin to accrue until
July 3, 2008. (9 RR Pls.’ Ex. 39-143).

      4.    Should Republic L.L.C. be awarded damages through October 15,
2008, the damage award should be rendered in the amount of $32,971.73 (23.75%
of $138,828.35, the damages incurred through October 15, 2008). (52 RR Defs.'
Exs. 915-0069-0079 and 926); (9 RR Pls.’ Ex. 139-143); (CR 504).

      5.    Republic L.L.C. presented the case as though it were seeking 100% of
the damages. (5 RR 137-138).

      Thus, these facts are uncontroverted. See Tex. R. App. P. 38.1(g) (“The

court will accept as true the facts stated unless another party contradicts them.”)

See also, Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916, 923 n.7 (Tex.

App. - Houston [14th Dist.] 2014, no pet.).




                                              1
                             SUMMARY OF ARGUMENT

I.     Republic L.L.C. had no standing and/or capacity to sue or recover
       damages
       The undisputed facts establish that Republic L.L.C. did not have standing

and/or capacity to sue or recover damages as it had no ownership in the HI 115

Well effective May 11, 2007, and did not file suit as operator or on behalf of the

other HI 115 owners.1 Republic L.L.C.’s efforts to establish otherwise fail.

       A.      Privity of contract

       Republic L.L.C. argues that it has standing because it was in privity of

contract with the Defendants. Privity of contract, however, does not equate with

standing.

       B.      Standing and capacity

       Republic L.L.C. argues that it had standing and capacity by virtue of the HI

115 OOA and references one portion of the record in support of same. However,

the cited reference actually reflects that effective July 16, 2010, Rooster Petroleum

L.L.C. (“Rooster”) became the operator of the HI 115 Well. (52 RR Defs.’ Ex.
       1
         Republic L.L.C. argues in point II that this Court should not reverse and render a Final
Judgment that Republic L.L.C. be awarded zero damages or, alternatively, $32,971.73, because
Defendants did not meet “any of the standards of review available to them.” Brief, p. 36. In
support of this argument, Republic L.L.C. sets forth inapplicable standards of review, states that
because Defendants filed a motion for new trial, “the filing of a motion to modify judgment was
improper”, Id., citing no legal authority for such a proposition, and that it was “inexplicably
unfair and fundamentally erroneous for the trial court to grant Defendants’ Motion to Modify
Judgment.” Id. Defendants previously addressed each of these arguments in its Appellants’
Brief as well as in their Appellees’ Brief, and incorporate the arguments herein by reference.
Defendants note, however, that the uncontroverted facts set forth in the Statement of Facts alone
establish that a take-nothing judgment should be entered by this Court.
                                                    2
915-0094). Republic L.L.C was not the operator when suit was filed and has no

capacity or standing to sue or recover damages as such.

      Republic L.L.C.’s reliance on the testimony of Scott Stanford (“Stanford”)

in support of its standing and capacity arguments is misplaced. The testimony

presented was in a bill of exception which the district court ruled inadmissible.

      C.     Rule 93 verifications

      Republic L.L.C. complains that although Defendants filed verified denials

regarding capacity, such verifications were insufficient because Defendants did not

allege the bases of personal knowledge. While Defendants’ verifications were

sufficient, Defendants could have utilized unsworn declarations in which the bases

of personal knowledge is not required. Moreover, an objection regarding lack of

personal knowledge must be lodged at the district court level and a ruling obtained,

which Republic L.L.C. failed to do and waived the complaint.

      D.     Republic L.L.C.’s working interest

      Republic L.L.C. argues for the first time that the PHA “does not concern the

working interest ownership of the [HI 115 Well]” and thus its working interest

(ownership share) is “irrelevant” to the dispute.       Were this new and novel

argument accepted, hundreds of years of case law regarding the need for ownership

to recover damages would be turned on its head.




                                             3
      Aside from these issues, Republic L.L.C. entered into the PHA as the

“owner” of the HI 115 Well and the terms of the HI 115 OOA establish that

expenses and revenue (and thus, damages) derived from the production of gas from

the HI 115 Well were allocated based upon the working interest ownership. The

PHA and ownership are relevant and inextricably entwined.

      E.     The Charge

      Lastly, Republic L.L.C. argues that since Defendants “make no claim of

charge error”, Defendants’ “capacity challenge can have no merit.” Brief, p. 25-

26. While Republic L.L.C.’s argument is unclear, Defendants are not required to

allege charge error as they are claiming that the district court erred, inter alia, in

denying Defendants’ JNOV and Motion to Modify Judgment. Even if Defendants

were required to assert charge error, their complaints were not waived as 1)

Defendants’ objected to Republic L.L.C.’s questions, 2) Defendants properly filed

verified denials which shifted the burden to Republic L.L.C. to obtain a jury

finding on the issue, 3) the district court held as a matter of law that Republic

L.L.C. did not file suit as operator or in any representative capacity thus the issue

should not be submitted to the jury, 4) standing and capacity are legal issues which

should not be submitted to the jury, and 5) Defendants properly preserved error by

objecting to the questions, filing a Motion for Directed Verdict, JNOV, Motion for

New Trial and Motion to Modify Judgment.

                                             4
      The Modified Final Judgment should be reversed and rendered that Republic

L.L.C. take-nothing, or, alternatively, that Republic L.L.C.’s damages are limited

to $32,971.73 and attorney’s fees through trial of $125,000.

                                    ARGUMENT

      I.     Privity of contract does not equate with standing

      Republic L.L.C. argues that since it was a signatory to the PHA, privity of

contract existed which “provides a party with standing to maintain a suit on the

contract.” Brief, p. 10. However, the case cited by Republic L.L.C. for this

proposition, Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605, 618

(Tex. 2004), actually states that “…our recognition of pass-through claims does not

run afoul of our long-held tradition of requiring privity of contract and standing for

a party to maintain suit.”     (Emphasis added.)     The only other case cited by

Republic L.L.C. for this proposition does not mention standing, only privity of

contract. Republic National Bank of Dallas v. National Bankers Life Ins. Co, 427

S.W.2d 76, 79 (Tex. Civ. App. - Dallas 1968, writ ref’d n.r.e.).

      While Republic L.L.C. was in privity of contract with Defendants, it did not

have standing as standing limits subject matter jurisdiction to cases involving a

distinct injury to the plaintiff.   See Texas Workers' Compensation Comm'n v.

Garcia, 893 S.W.2d 504, 517–18 (Tex. 1995). See also State Bar v. Gomez, 891

S.W.2d 243, 245 (Tex. 1994). Republic L.L.C. has no distinct injury since it had

                                             5
no working interest ownership in the HI 115 Well.2 Nauslar v. Coors Brewing

Co., 170 S.W.3d 242, 252 (Tex. App. - Dallas 2005, no pet.) (“[Plaintiff] asserts

standing in its roles as former general partner of Willow's general partner and

former limited partner of Willow. […] [Plaintiff] sold…the entirety of its interest

in Willow. None of the cases it cites stands for the proposition that a partner that

has sold its entire interest in the partnership can personally recover on a claim

belonging to that partnership.”) (Emphasis in original); Webb v. Voga, 316 S.W.3d

809, 815 (Tex. App. - Dallas 2010, no pet.) (“The evidence shows Webb was not a

property owner. We conclude that Webb lacked standing for her causes of action

…and, therefore, the trial court lacked subject matter jurisdiction over those causes

of action.”)

       II.     The HI 115 OOA did not give Republic L.L.C. capacity to sue or
               recover damages

       Republic L.L.C. argues that it had capacity to sue as operator under the HI

115 OOA. Even if this were true, which it is not, the district court ruled that

Republic L.L.C. did not bring suit as the operator. (CR 1055) (5 RR 138)

Moreover, Republic L.L.C.’s request for a trial amendment to remedy its lack of




       2
         Republic L.L.C. also alleges that it established standing because Defendants did not
assert that other parties should be joined to the lawsuit and that Defendants made judicial
admissions. Defendants addressed these allegations in their Response to Republic L.L.C’s
Appellant’s Brief and incorporate the arguments herein.
                                                 6
capacity was denied.3 (CR 1056) (6 RR 119).

       Further, Republic L.L.C. was not the operator when the lawsuit was filed,

contrary to its statement to this Court that “[e]ffective July, 16, 2010, the [OOA]

was again amended… However, Republic remained the designated Operator under

the [OOA].” Brief, p. 17. The cite to which Republic L.L.C. refers actually states:

       III.   The operator for the Lease shall be:

              Rooster Petroleum, LLC

(52 RR Defs.’ Ex. 915-0094). When suit was filed on December 9, 2010, Republic

L.L.C. could not have brought claims in the capacity of operator since that position

was held by Rooster. (4 RR 58).

       Republic L.L.C. also cites inadmissible testimony for the proposition that

“any recovery in the lawsuit will be split out to the non-operating working interest

partners.” Brief, p. 16. This testimony was obtained while Republic L.L.C. was

making its bill of exception and was ruled as inadmissible by the district court.

(5 RR 113-138). A portion of the objection and bill of exception follows:

       Q. Was it the understanding of your partners… that this provision authorized
       Republic Petroleum, LLC, to prosecute the litigation?

       MR. DELUCA: Objection, Your Honor. May we approach.

       THE COURT: Okay.


       3
      Republic L.L.C. does not challenge the district court’s denial of leave to file a trial
amendment on appeal.
                                                 7
      (Bench discussion…)

      MR. DELUCA: Republic Petroleum, LLC, and Republic Petroleum
      Partners, LP, brought this case in their individual capacity. They did not
      bring it as an operator…. [T]he PHA names Republic Petroleum, LLC, as,
      quote, Producer, not Operator.

      THE COURT: What part am I missing here?

      MR. DELUCA: They didn't bring it on behalf of everybody else. They only
      brought it on behalf of themselves.
      ……

      MR. DELUCA: For their own damages, not all the partners.

      THE COURT: Is that what your trying to do?

      MR. BATTAGLINI: That's what our pleading says.

      BILL OF EXCEPTIONS

      BY MR. BATTAGLINI

      Q. Mr. Stanford, is it true that the damages that were calculated in this case
      are 100 percent damages?

      A. They are.

      Q. Is it true, when you brought this lawsuit, you brought it on behalf of 100
      percent of the gas stream owners?

      A. Yes, I did. (5 RR 113-138).

The district court ruled the testimony inadmissible, stating, “I don’t see anything in

it [Plaintiffs’ Fourth Amended Petition] that indicates that it was brought in any

kind of representative capacity or was seeking to recover damage on behalf of



                                             8
anybody other than the Republic entities. That’s my ruling.”4 (5 RR 113-138).

No evidence or admissible testimony supports Republic L.L.C.’s contention that

the HI 115 OOA conferred capacity to bring suit.

       III.   Defendants’ rule 93 verifications were sufficient

       Republic L.L.C. admits that Defendants filed verified denials disputing

Republic L.L.C.’s capacity to sue or recover damages, but contends that such

verifications were defective because they did not set forth the bases of personal

knowledge. Brief, p. 19. Republic L.L.C. cites a few cases dealing with the need

for personal knowledge in an affidavit supporting a summary judgment, but no

cases dealing with such a requirement for a verified denial.                   Nonetheless,

Defendants’ verifications are not deficient. (CR 687) (CR 701). In fact, the

verifications 1) specifically recite personal knowledge, 2) reference the paragraphs

in the Answers to which they refer, and 3) the referenced paragraphs set forth the

public documents which indicate Republic L.L.C.’s lack of capacity including the

fact that Rooster was the operator at the time suit was filed. (CR 650-651) (CR

697-98).



       4
         Republic L.L.C.’s contention that the language in the OOA permitting the operator to
“supervise the handling, conduct and prosecution of all Claims involving activities or
operations” somehow “authorized Republic to prosecute the lawsuit” is belied by the fact that
Republic L.L.C. was not the operator when suit was filed and by the terms of the OOA itself
which require consent of the other working interest owners as fully addressed by Defendants in
their Response to Republic L.L.C’s Appellant’s Brief which is incorporated herein.

                                                 9
       Furthermore, Defendants did not have to file a verification setting forth

personal knowledge inasmuch as an unsworn declaration is sufficient. See Tex.

Civ. Prac. & Rem. Code §132.001. See also, 2 McDonald & Carlson Tex. Civ.

Prac. § 7:21 (2d. ed.) (“Under Rule 93,…[i]n lieu of [a] … verification …a litigant

may use an unsworn declaration.”)

      Lastly, “an objection that an affidavit is not based on personal knowledge is

an objection to a defect in form. Cooper v. Circle Ten Council Boy Scouts of

America, 254 S.W.3d 689 (Tex. App. - Dallas 2008, no pet.). As a prerequisite to

presenting a complaint for appellate review, such an objection must be timely and

specifically raised, and a ruling obtained.” Mekeel v. U.S. Bank Nat. Ass'n, 355

S.W.3d 349, 357 (Tex. App. - El Paso 2011, pet. dism'd) (citing Tex. R. App. P.

33.1(a) [other citations omitted]).       Republic L.L.C. did not object to the

verifications at the district court level and thus waived any alleged error.

      IV.    Republic L.L.C.’s working interest ownership is relevant

      Republic L.L.C. contends that its lawsuit “does not concern Republic’s

working interest ownership in the Satellite Well, but instead concerns a breach of

the PHA,” thus its working interest ownership is “irrelevant.” Brief, p. 22-23.

Republic L.L.C. does not cite a single case for this proposition, nor does it

distinguish the plethora of authority holding that an ownership interest is necessary

to recover damages.

                                             10
      Moreover, the PHA would not exist without the HI 115 Well and the

production there-from. Under the HI 115 OOA, the parties paid expenses and

received revenues (including, logically, any damages) associated with production

according to their participating interest (working interest ownership) as follows:

      Basis of Charge to the Parties. Subject to the other provisions of this
      Agreement, Operator shall pay all costs incurred under this Agreement, and
      each Party shall reimburse Operator in proportion to its Participating
      Interest. (18 RR Pls.’ Ex. 190-0008)

      Statements and Billings. Operator shall bill Non-Operators … for their
      proportionate share of the Joint Account…. (42 RR Defs.’ Ex. 756-0286-
      0287)

      "Joint Account" shall mean the account showing the charges paid and credits
      received in the conduct of the Joint Operations and which are to be shared
      by the Parties. (42 RR Defs.’ Ex. 756-0286)

See also (46 RR Defs.’ Ex. 0773-2058 et seq.) (Invoices pertaining to production

under the PHA setting forth charges and credits to the HI 115 working interest

owners based upon their ownership interest).

      Contrary to Republic L.L.C.’s position, the case law is clear that without an

ownership interest or suit in a representative capacity, there can be no standing

and/or capacity. See Fuqua v. Taylor, 683 S.W.2d 735, 739 (Tex. App. - Dallas

1984, writ ref’d n.r.e.) (“It would violate equitable principles to allow appellees,

who owned but thirty-one percent of the working interest, to recover one hundred

percent of the trust income…. [W]e remand … for a determination of the amount

of each individual appellee's recovery, to be calculated according to the percentage
                                           11
of the entire working interest … owned by each appellee.”); Denman v. SND

Operating, L.L.C., No. 06-04-00061-CV, 2005 WL 2316177, at *8 (Tex. App. -

Texarkana Sept. 23, 2005, no pet.) (“The Denmans … have standing to sue for

discharges of hydrocarbons and for damages…during their ownership.”)

(Emphasis added.) Republic L.L.C.’s lack of working interest ownership is not

only relevant; it is determinative and establishes that a take-nothing judgment

should be rendered.

       V.     Defendants did not waive any points of error

       Republic L.L.C. alleges that since Defendants “make no claim of charge

error” the Defendants “are bound by the charge on appeal” and “because the jury

was not requested to consider damages in the context of Republic’s working

interest ownership,” Defendants’ “capacity challenge can have no merit.”5 Brief,

p. 25-26. Although Republic L.L.C.’s allegation is unclear, and no cases are cited

that are even peripherally on point, Defendants are not required to claim charge

error as they contend that the district court erred, inter alia, in denying Defendants’

JNOV and Motion to Modify Judgment. Even if Defendants had to claim charge

error, they did not waive any complaints.




       5
         Republic L.L.C. fails to note that it has no pleading to support a 100% damage award
and that if the Modified Judgment is not reversed and rendered, damages will be awarded to non-
parties. These issues were preserved for appeal as well and not addressed by Republic L.L.C.

                                                 12
       To the extent Republic L.L.C. suggests that it was incumbent upon

Defendants to submit a damage question to preserve Defendants’ capacity

complaint on appeal,6 Brief, p. 25-26, Republic L.L.C. is mistaken for many

reasons.7

       First, the issue of Republic L.L.C.’s working interest ownership relates to

standing, not capacity. See Shipley v. Unifund CCR Partners, 331 S.W.3d 27, 29

(Tex. App. - Waco 2010, no pet.) (“We find that without evidence of any

ownership interest or title in the account that Unifund CCR Partners does not have

standing to bring this suit and that the trial court did not have subject matter

jurisdiction over the action.”); Denman, No. 06-04-00061-CV, 2005 WL 2316177,

at *8 (Accord). Moreover, “standing is a component of subject matter jurisdiction

and can never be waived.” John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408

S.W.3d 645, 650-51 (Tex. App. - Dallas 2013, pet. denied) (citing Austin Nursing

Ctr. Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005)).

       Second, even if ownership is a capacity issue, Defendants properly filed

verified denials. As such, the burden shifted to Republic L.L.C. to obtain a jury

       6
         Incredibly, Republic L.L.C. argues the opposite position on page 26 of its Brief stating
that “standing and capacity are legal questions which … should not have been argued to the jury”
and on page 34 that “because Defendants do not challenge the jury charge, the sufficiency of the
evidence must be reviewed in light of the charge submitted.”
       7
        Defendants also objected to the submission of the damage question on the bases of 1) no
evidence of damages due to the fact that Republic L.L.C. did not own an interest in the HI 115
Well, 2) lack of standing, and 3) lack of capacity. (7 RR 81-83) (7 RR 86-87). All objections
were overruled. (7 RR 77-87).
                                                  13
finding on the issue as stated in Damian v. Bell Helicopter Textron, Inc., 352

S.W.3d 124, 141 (Tex. App. - Fort Worth 2011, pet. struck):

      [I]f a verified denial is filed, the issue of the plaintiff's capacity to sue is
      controverted, and the plaintiff bears the burden of proving at trial that he is
      entitled to recover in the capacity in which he has filed suit. As the party
      with the burden of proof then, it is incumbent upon the plaintiff to obtain
      a jury finding on this particular issue.

(Emphasis added.)

      Third, prior to submission of the case to the jury, the district court held as a

matter of law that Republic L.L.C. did not file suit as operator or in any

representative capacity, and denied the request for leave to file a Fifth Amended

Petition. (5 RR 128); (6 RR 119). As such, the issue of capacity was already

decided and Defendants did not waive any complaint. See Byrd v. Estate of Nelms,

154 S.W.3d 149, 160 (Tex. App. - Waco 2004, pet. denied) (“Any question

concerning the Nelms Partnership's capacity to sue was determined by the trial

court as a matter of law …. Issues of capacity to sue are questions of law. Mayhew

v. Town of Sunnyvale, 964 S.W.2d 922, 928–29 (Tex. 1998). Issues found as a

matter of law should not be submitted to the jury. Star Enterprise v. Marze, 61

S.W.3d 449, 459 (Tex. App. - San Antonio 2001, pet. denied) (citing T.O. Stanley

Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222–23 (Tex.1992)).”

      The lack of Republic L.L.C.’s working interest was also established as a

matter of law and not controverted by Republic L.L.C. either in the district court or


                                            14
on appeal. A fact issue that is established with uncontroverted evidence and is not

in dispute should not be submitted to the jury. Bank of El Paso, 847 S.W.2d at

223.

       Fourth, as admitted by Republic L.L.C. in its brief, standing and capacity

should not be submitted to the jury. Rhey v. Redic, 408 S.W.3d 440, 463 (Tex.

App. - El Paso 2013, no pet.) (“To the extent Rhey's argument is related to the

standing and capacity …, both issues are legal questions which would not be

submitted to the jury.”) Brief, p. 26.

       Lastly, Defendants properly preserved error by objecting to the damage

question (7 RR 81-83) (7 RR 86-87), filing a Motion for Directed Verdict (CR

841-846) (6 RR 5), JNOV (CR 888-903) and a Motion for New Trial (CR 1122-

1150). See United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex.

App. - Houston [14th Dist.] 2000, pet. denied) (citing Cecil v. Smith, 804 S.W.2d

509, 510–11 (Tex. 1991)). (“To preserve a no evidence or matter of law point for

appeal, a party must raise the issue through one of the following: (1) a motion for

directed verdict, (2) a motion for JNOV, (3) an objection to the submission of the

question to the jury, (4) a motion to disregard the jury's answer to a vital fact

question, or (45) a motion for new trial.”) Moreover, Defendants filed a Motion to

Modify Judgment (CR 1050-1070) and “[m]otions to modify preserve error for

appellate review of an erroneous damage award in a judgment.”           Solares v.

                                           15
Solares, 232 S.W.3d 873, 881 (Tex. App. - Dallas 2007, no pet.) (citing, Harmon

v. 1401 Elm Street Condominium Ass'n, 139 S.W.3d 411, 416–17 (Tex. App. -

Dallas 2004, no pet.)).

                                    PRAYER

      Defendants Dynamic and W&T Offshore pray that the Court of Appeals

reverse and render judgment that Republic L.L.C. takes nothing, or alternatively

that Republic L.L.C. be awarded damages of $32,971.73 and attorney’s fees

through trial of $125,000. Defendants also pray for such other relief to which they

may be justly entitled.

                                   APPENDIX
      1. Attachment to the HI 115 OOA indicating that the operator for the lease
         effective July 16, 2010 is Rooster Petroleum, LLC (52 RR Defs.’ Ex.
         915-0094)

      2. Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

      3. Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

      4. Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)

                                      Respectfully submitted,

                                      GIEGER, LABORDE & LAPEROUSE,
                                      L.L.C.
                                      KENNETH H. LABORDE
                                      Texas State Bar No. 11786070
                                      klaborde@glllaw.com
                                      DANIEL G. RAUH
                                      drauh@glllaw.com
                                      Louisiana State Bar No. 27280
                                           16
(Pro Hac Vice)
CHARLOTTE A. FIELDS
cfields@glllaw.com
Texas State Bar No. 24032175
Gieger, Laborde & Laperouse,
1177 West Loop South, Suite 750
Houston, Texas 77027
Telephone: (832) 255-6000
Facsimile: (832) 255-6001

COUNSEL FOR DEFENDANT
DYNAMIC OFFSHORE RESOURCES NS,

- AND-

JOHNSON DELUCA KURISKY &
GOULD
A Professional Corporation
BRADLEY L. DELUCA
bdeluca@jdkglaw.com
Texas Bar No. 05653800
BRIGID D. ASHCRAFT
bashcraft@jdkglaw.com
Texas Bar No. 09193167
4 Houston Center
1221 Lamar, Suite 1000
Houston, Texas 77010
(713) 652-2525 – Telephone
(713) 652-5130 – Facsimile

COUNSEL FOR DEFENDANT
W&T OFFSHORE, INC., successor by
merger of OFFSHORE SHELF, L.L.C.




    17
                      CERTIFICATE OF COMPLIANCE

      As required by Rule 9.4, Texas Rules of Appellate Procedure, the
undersigned certifies that this brief contains 3814 words, exclusive of the portions
described in Rule 9.4(i)(1).

                                             /s/ Kenneth H. Laborde
                                             Kenneth H. Laborde

                                             /s/ Bradley L. DeLuca
                                             Bradley L. DeLuca

                         CERTIFICATE OF SERVICE

       I hereby certify that on April 13, 2015, the Reply Brief of Cross-Appellants
Dynamic Offshore Resources NS and W&T Offshore, Inc. Successor By Merger of
Offshore Shelf was electronically filed with the Clerk of Court for The First Court
of Appeals by using the EFSP-EFM System. Participants in this case who are
registered EFSP-EFM System users will be served electronically by the EFSP-
EFM System. Other participants will be served by e-mail in accordance with TEX.
R. APP. P. 9.5(e).
      KB BATTAGLINI
      Texas State Bar No. 01918060
      kbattaglini@strongpipkin.com
      JOHN G. BISSELL
      Texas State Bar No. 02356000
      jbissell@strongpipkin.com
      Strong Pipkin Bissell & Ledyard, L.L.P.
      4900 Woodway Drive, Suite 1200
      Houston, Texas 77056
      Telephone: (713) 651-1900
      Facsimile: (713) 651-1920

      Counsel for Plaintiffs/Appellants Republic Petroleum, and Republic
      Petroleum Partners, L.P.



                                           18
KENNETH H. LABORDE
Texas State Bar No. 11786070
klaborde@glllaw.com
DANIEL G. RAUH
Louisiana State Bar No. 27280 (PHV)
drauh@glllaw.com
CHARLOTTE A. FIELDS
Texas State Bar No. 24032175
cfields@glllaw.com
Gieger, Laborde & Laperouse,
1177 West Loop South, Suite 750
Houston, Texas 77027
Telephone: (832) 255-6000
Facsimile: (832) 255-6001
Counsel for Defendant/Cross-Appellant Dynamic Offshore Resources
NS
                                /s/ Kenneth H. Laborde
                                Kenneth H. Laborde

JOHNSON DELUCA KURISKY &
GOULD
A Professional Corporation
BRADLEY L. DELUCA
bdeluca@jdkglaw.com
Texas Bar No. 05653800
BRIGID D. ASHCRAFT
bashcraft@jdkglaw.com
Texas Bar No. 09193167
4 Houston Center
1221 Lamar, Suite 1000
Houston, Texas 77010
(713) 652-2525 – Telephone
(713) 652-5130 – Facsimile
Counsel for Defendant W&T Offshore, Inc., Successor by Merger of
Offshore Shelf, L.L.C.
                              /s/ Bradley L. DeLuca
                              Bradley L. DeLuca

                               19
            L.       Pipeline Ownership in Segment#17167 (OC8-G 28359):

                                                               WI
                     Rooster Oil & Gas, LLC                 23.00000%
                     PROBE HIGH ISLAND ll5 LID.             18.54486%
                     PROBE RESOURCES US LID.                30.95514%
                     Republic Petroleum Partners, LP        19.10000%
                     Sierra Pine Resources International, Inc. 00.62500%
                     DBL Oil & Gas, LLC                        00.62500%
                                                             100.00000%

 ID.       The Operator for the Lease shall be:

           Rooster Petroleum, LLC


 IV.       Notification addresses and titles of the designed representatives are as follows:

           Republic Petroleum, LLC                            Blue Dolphin Petroleum Company
           2425 West Loop South, Suite. 200                  801 Travis, Suite 2100
           Houston, Texas 77027                              Houston, Texas 77002
           Attn: Scott Stanford                              Attn: Ivar Siem
           Telephone: (713) 297-9180                         Telephone: (713) 568-4730
           Fax: (713) 297-8864                               Fax: (713) 227-7626
           Email: sstanford@•:omcast.net                     Email: ivar.siem@blue-dolphin.com

           Sierra Pine Resou.rces International, Inc.        PROBE RESOURCES US LTD.
           110 Cypress Station Drive, #155                   24 Waterway, Suite 1450
           Houston, Texas 77090         ·                    The Woodtimds, Texas 77380
           Attn: Bruce Ganer                                 Attn: Roger B. Souders
           Telephone: (713) :197-8864                        Telephone: (281) 210-1173
           Fax: (713) 297-8864                               Fax: (281) 210-1193
           Email: BLGaner@aol.com                            Email:rsouders@probe-resources.com

          PROBEIDGHlSLAND 115 LTD.                           Republic Petroleum Partners, LP
          24 Waterway, Suite 1450                            2425 West Loop South, Suite 200
          The Woodlands, Texas 77380                         Housto~ Texas 77027
           Attn: Roger B. Souders                            Attn: Scott Stanford
          Telephone: (281) 210- II 73                        Telephone: (713) 297-9180
          Fax: (281)210-1193                                 Fax: (713) 297-8864
          Email: rsouders@probe-resources.com                Email: ssstanford@comca.st.net

          Rooster Oil & Gas, LLC                             Rooster Petroleum, LLC
          16285 Park Ten Place, Suite 120                    16285 Park Ten Place, Suite 120
          Houston, Texas 77084                               Houston, Texas 77084
          Attn: Kenneth F. Tamp lain, Jr.                    Attn; Kenneth F. Tamplain, Jr.
          Telephone: (713) 574-7558                          Telephone: (713) 574-7558
          Fax: (832) 772-6314                                Fax: (832) 772-6314
          Email: ktamplain@roosternetroleum.com              Email: ktamplain@roostemetroleum.com

          DBL Oil & Gas, LLC
          8427 E. Copper Village Dr.
          Houston, Texas 77095
          Attn: Tod Dan:ey
          Telephone: (281) 728-8894
          Email: tdarcey@darceyoifandgas.com

V,        Permitted Encumbrances:

A.        A I% of 8/Sths overriding royalty interest in favor of Leopard Energy and
          Trading, Inc. (Leopard ORR!), specifically limited to production from the High
          Island 115, B-1 STI completion in the Lower Cris R Forn1ation found at a depth
          of !6,862' measured depth, only per the Bonding Support Agreement dated
          August 11, 2006 by and between Republic Petroleum, LLC and Leopard Energy
          and Trading, Inc. (This burden affects all parties llllder this Operating
          Agreement).


ffi 115 Exhibit ,.A" to Second Amendment to OOA
                                                  Page 4

                                                                   DEFENDANTS' TRIAL EXHIBIT
                                                                                               0915-0094
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)




                                                             [7]
                                                                settlement negotiations between buyer and seller did
                   451 S.W.3d 916                            not constitute “presentment”;
              Court of Appeals of Texas,
                Houston (14th Dist.                          [8]
                                                                affidavit of seller’s attorney filed after jury reached
                                                             verdict was not evidence of presentment; and
  Jamie Genender and Critter Stuff, LLC, Appellants
                        v.                                   [9] once jury returned verdict on claim for breach of
         USA Store Fixtures, LLC, Appellee                   contract, trial court should not have reopened record to
                                                             allow evidence on disputed issue of presentment.
NO. 14–14–00048–CV | Opinion filed December 23,
                   2014.
                                                             Affirmed as modified.

Synopsis
Background: Seller filed petition against buyer and
buyer’s owner, arising out of reversal of charge on
                                                               West Headnotes (19)
buyer’s credit card for payment of used shelving
purchased from seller. The Justice Court entered
take-nothing judgment against seller, and seller appealed.    [1]
                                                                     Justices of the Peace
Following trial de novo, the County Court at Law No. 1,
                                                                       Evidence
Harris County, awarded seller damages in amount of
$2,303.42, and attorney fees in amount of $38,000 for
                                                                     Seller of used shelving was presumed to have
trial, $20,000 for appeal to Court of Appeals, and $20,000
                                                                     orally pleaded claim for breach of contract
for appeal to Supreme Court. Buyer and owner appealed.
                                                                     against buyer in justice court and, thus, county
                                                                     court had subject matter jurisdiction over claim
                                                                     in de novo trial; seller filed petitions in justice
Holdings: The Court of Appeals, Sharon McCally, J.,                  court against buyer and buyer’s owner asserting
held that:                                                           that defendants were legally indebted to it and
                                                                     that seller reserved right to plead further orally
[1]
   county court had subject matter jurisdiction over claim           upon trial of matter, and buyer did not rebut
for breach of contract;                                              presumption of oral pleading. Tex. R. Civ. P.
                                                                     525 (Repealed).
[2]
   evidence supported jury’s finding that defendants
breached contract to purchase shelving;
                                                                     Cases that cite this headnote
[3]
   seller’s written “quote” to buyer was not evidence of
seller’s “presentment” to buyer of demand for payment on
contract, as prerequisite to seller’s right to recover
attorney fees on claim;                                       [2]
                                                                     Justices of the Peace
[4]                                                                    Evidence
   notification to seller of reversal of charge on buyer’s
credit card that was used to purchase shelving was not               The presumption that a claim was orally pleaded
“presentment”;                                                       in the justice court, for the purposes of
[5]                                                                  determining whether the county court has
    documents from seller’s merchant account provider                subject matter jurisdiction over the claim upon a
reflecting communications between provider, buyer, and               trial de novo, is rebuttable. Tex. R. Civ. P. 525
seller did not include presentment of demand for payment             (Repealed).
on contract;
[6]
    seller’s discovery responses did not constitute                  Cases that cite this headnote
“presentment” of claim;


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)




[3]
       Justices of the Peace
         Evidence
                                                             [6]
                                                                   Costs
       The lack of a notation as to an orally pleaded                Contracts
       claim in the justice court’s docket does not rebut
       the presumption of oral pleading, for the                   No particular form of presentment of a demand
       purposes of determining whether the county                  for performance or payment of a contract, in
       court has subject matter jurisdiction over the              order to recover attorney fees on a claim for
       claim upon trial de novo. Tex. R. Civ. P. 525               breach of contract; however, merely filing suit
       (Repealed).                                                 for a breach of contract, by itself, does not
                                                                   constitute “presentment.” Tex. Civ. Prac. &
                                                                   Rem. Code Ann. § 38.001.
       Cases that cite this headnote

                                                                   Cases that cite this headnote


[4]
       Consumer Credit
         Credit Cards
                                                             [7]
       Sales                                                       Costs
         Excuses for default or delay                                Form and requisites of application in general
                                                                   Costs
       Evidence supported jury’s finding that buyer                  Evidence as to items
       and buyer’s owner failed to comply with
       agreement to purchase used shelving from seller,            The claimant bears the burden of both pleading
       as required to support seller’s claim for breach            and proving presentment of a demand for
       of contract, arising out of buyer’s submission of           performance or payment on a contract, as a
       dispute with credit card company that resulted in           prerequisite to the recovery of attorney fees on a
       company reversing charge, where buyer agreed                claim for breach of contract. Tex. Civ. Prac. &
       to purchase shelves, accepted shelves, and then             Rem. Code Ann. § 38.001.
       refused to pay for shelves, and fact that credit
       card company reversed charge had no bearing
       on buyer’s legal obligation to pay for shelves.             Cases that cite this headnote
       Tex. Bus. & C. Code § 2.607(a).


       Cases that cite this headnote                         [8]
                                                                   Costs
                                                                     Contracts

                                                                   The purpose of the presentment requirement is
[5]                                                                to allow the party against whom the claim for
       Costs
         Contracts                                                 breach of contract is asserted an opportunity to
                                                                   pay it or tender performance within 30 days
       “Presentment,” as a prerequisite to an award of             after they have notice of the claim without
       attorney fees on a claim for breach of contract,            incurring an obligation for attorney’s fees. Tex.
       is a demand or request for payment or                       Civ. Prac. & Rem. Code Ann. § 38.001.
       performance of a contract, whether written or
       oral. Tex. Civ. Prac. & Rem. Code Ann. §
       38.001.                                                     Cases that cite this headnote


       Cases that cite this headnote

              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)


[9]
       Costs                                                        charge, where quote was prepared several weeks
         Duties and proceedings of taxing officer                   before buyer agreed to purchase any shelving,
                                                                    before any contract was formed, and quote did
       Generally, presentment of a claim for breach of              not reflect parties’ actual agreement as to
       contract, as a prerequisite to the recovery of               amount of shelving and cost of shipping. Tex.
       attorney fees on the claim, is an issue of fact.             Civ. Prac. & Rem. Code Ann. § 38.001.
       Tex. Civ. Prac. & Rem. Code Ann. § 38.001.

                                                                    Cases that cite this headnote
       Cases that cite this headnote



                                                             [13]
                                                                    Costs
[10]
       Costs                                                          Evidence as to items
         Duties and proceedings of taxing officer
                                                                    Evidence that the plaintiff sent an invoice to the
       When the issue of the amount of attorney’s fees              defendant can satisfy a plaintiff’s burden to
       is found by the jury without a request for a jury            prove presentment of a demand for performance
       finding on the issue of presentment of demand                or payment on a contract, as a prerequisite to an
       for payment or performance of the contract to                award of attorney fees on a claim for breach of
       the defendant, presentment is deemed found.                  contract. Tex. Civ. Prac. & Rem. Code Ann. §
       Tex. Civ. Prac. & Rem. Code Ann. § 38.001;                   38.001.
       Tex. R. Civ. P. 279.

                                                                    Cases that cite this headnote
       Cases that cite this headnote



                                                             [14]
                                                                    Costs
[11]
       Appeal and Error                                               Vendor and purchaser; sales
         Allowance or disallowance of costs and fees
                                                                    Notification to seller of reversal of charge on
       An award of attorney’s fees on a claim for                   buyer’s credit card that was used to purchase
       breach of contract must be reversed if there is no           used shelves from seller was not “presentment”
       evidence of presentment of the demand for                    by seller of demand to buyer for payment on
       payment or performance of the contract. Tex.                 contract to purchase shelves, as prerequisite to
       Civ. Prac. & Rem. Code Ann. § 38.001.                        seller’s right to recover attorney fees on claim
                                                                    for breach of contract. Tex. Civ. Prac. & Rem.
                                                                    Code Ann. § 38.001.
       Cases that cite this headnote

                                                                    Cases that cite this headnote

[12]
       Costs
         Vendor and purchaser; sales
                                                             [15]
                                                                    Costs
       Seller’s written “quote” to buyer on price for                 Vendor and purchaser; sales
       used shelving was not evidence of seller’s
       “presentment” to buyer of demand for payment                 Documents from seller’s merchant account
       on contract, as prerequisite to seller’s right to            provider reflecting communications between
       recover attorney fees on claim after buyer                   provider, buyer, and seller contained no demand
       disputed charge for shelves on credit card with              by seller for payment on contract to purchase
       credit card company, resulting in reversal of                used shelving, and thus, did not constitute
              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   3
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)



       “presentment” of claim, as prerequisite to                   the purpose of the presentment requirement to
       seller’s right to recover attorney fees on claim             provide the defendant with the opportunity, by
       against buyer for breach of contract. Tex. Civ.              undertaking specific action, to avoid paying
       Prac. & Rem. Code Ann. § 38.001.                             attorney’s fees. Tex. Civ. Prac. & Rem. Code
                                                                    Ann. § 38.001.
       Cases that cite this headnote
                                                                    Cases that cite this headnote



[16]
       Costs
                                                             [19]
         Vendor and purchaser; sales                                Judgment
                                                                      Basing motion on records of case
       Seller’s discovery responses did not constitute
       demand for payment on contract to purchase                   On used shelving buyer’s motion to disregard
       used shelving from seller, and thus, did not                 jury’s finding on issue of attorney’s fees and
       constitute “presentment” of claim, as                        buyer’s amended motion for judgment
       prerequisite to recovering award of attorney fees            notwithstanding verdict (JNOV), in seller’s
       on a claim for breach of contract against buyer.             breach of contract action, trial court improperly
       Tex. Civ. Prac. & Rem. Code Ann. § 38.001.                   reopened evidence on a controverted matter
                                                                    when it considered affidavit submitted by
                                                                    seller’s attorney averring that he made demand
       Cases that cite this headnote                                for payment of invoice for shelving purchased
                                                                    by buyer to buyer’s counsel, where affidavit was
                                                                    filed after jury reached verdict, and motions and
                                                                    the affidavit concerned parties’ dispute as to
[17]                                                                whether seller had made presentment of its
       Costs                                                        breach of contract claim, which was prerequisite
         Vendor and purchaser; sales                                to recovering attorney fees. Tex. Civ. Prac. &
                                                                    Rem. Code Ann. § 38.001; Tex. R. Civ. P. 270.
       Settlement negotiations between buyer and
       seller of used shelving with respect to buyer’s
       failure to pay for shelving did not constitute               Cases that cite this headnote
       “presentment” of demand for payment on
       contract, as prerequisite to seller’s right to
       recover attorney fees on claim for breach of
       contract. Tex. Civ. Prac. & Rem. Code Ann. §
       38.001.
                                                             *919 On Appeal from the County Civil Court at Law No.
                                                             1, Harris County, Texas, Trial Court Cause No. 1016718.
       Cases that cite this headnote                         Debra I. Mayfield, Judge.

                                                             Attorneys and Law Firms

                                                             Cameron Weir, Jan Woodward Fox, Houston, TX, for
[18]
       Costs                                                 Appellants.
         Contracts
                                                             Jerrad D. Bloome, Houston, TX, for Appellee.
       Evidence that the parties to a contract
       participated in settlement negotiations, without      Panel consists of Justices McCally, Brown, and Wise.
       more, is no evidence of “presentment” of a
       demand for payment or performance on the
       contract, as a prerequisite to the non-breaching
       party’s right to recover attorney fees on a claim
       for breach of contract, because it does not satisfy
              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   4
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)



                         OPINION                                 Store Fixtures did not fail to comply with the agreement,
                                                                 Store Fixtures suffered damages of $2,303.42, and Store
                                                                 Fixtures’ reasonable and necessary attorney’s fees were
Sharon McCally, Justice                                          $38,000 for preparation and trial, $20,000 for an appeal to
                                                                 the court of appeals, and $20,000 for an appeal to the
Appellee USA Store Fixtures, LLC sued appellants Jamie           Supreme Court of Texas. The county court signed a final
Genender and her business Critter Stuff, LLC in justice          judgment consistent with the jury’s verdict. This appeal
court after Genender successfully obtained a chargeback          followed.
on her credit card related to her purchase of $2,303.42 in
used shelving from Store Fixtures. Store Fixtures
appealed a take-nothing judgment from the justice court
to the county court, which held a trial de novo. A jury
awarded Store Fixtures damages of $2,303.42 and                        II. SUBJECT MATTER JURISDICTION
attorney’s fees of $38,000 for trial, $20,000 for an appeal
to the court of appeals, and $20,000 for an appeal to the        In their first issue, appellants contend the county court’s
Supreme Court of Texas. In three issues, appellants              judgment is void because the county court lacked subject
contend the county court lacked jurisdiction over Store          matter jurisdiction over the only claim and basis for
Fixtures’ breach of contract claim, the evidence is legally      attorney’s fees supporting the judgment. Appellants argue
insufficient, and Store Fixtures is not entitled to attorney’s   that Store Fixtures did not plead a breach of contract
fees because it failed to plead and prove presentment of         claim in the justice court, and Store Fixtures’ contract
its claim.                                                       claim was a “new ground of recovery” pleaded for the
                                                                 first time on appeal to the county court. See Tex.R. Civ. P.
We hold that the trial court had jurisdiction over Store         574a, 50 Tex. B.J. 868 (1987, repealed 2013) (on appeal
Fixtures’ breach of contract claim and the evidence is           from justice court, “no new ground of recovery shall be
legally sufficient to support the jury’s finding on that         set up by the plaintiff”).
claim, but Store Fixtures failed to prove presentment.
Accordingly, we modify the trial court’s judgment to             Store Fixtures contends that it pleaded a breach of
delete the award of attorney’s fees and affirm the trial         contract claim in the justice court because Store Fixtures
court’s judgment as modified.                                    reserved the right to plead orally and, at the justice court
                                                                 trial, Store Fixtures “sought to recover the total invoice
                                                                 amount under the theory that Genender and Critter Stuff
                                                                 had breached the contract by not paying for the shelving.”

                    I. BACKGROUND                                First we will review the relevant proceedings and
                                                                 evidence in the record. Then we overrule appellant’s issue
Using a credit card, Genender purchased some used                because appellants failed to rebut the presumption that
shelving from Store Fixtures for Genender’s business.            Store Fixtures orally pleaded its breach of contract claim
Store Fixtures shipped the shelving to Genender in               in the justice court.
Wisconsin. But she was disappointed with the quantity
and quality of the shelving she received and with Store
Fixtures’ response to her concerns, so she filed a dispute
with her credit card company that resulted in a                  A. Background and Evidence
chargeback to Store Fixtures. Store Fixtures sued                Store Fixtures, acting through its president,1 filed two
appellants in justice court; all parties were pro se. After a    petitions in justice court. The petition naming Genender
bench trial, the justice court signed a take-nothing             as a defendant alleged as follows:
judgment in appellants’ favor, and Store Fixtures
appealed to the county court. The parties hired attorneys                    That the defendant is legally
and ultimately proceeded to a de novo jury trial with each                   indebted to the plaintiff in the sum
side asserting claims for breach of contract and attorney’s                  of $10,000.00 based upon the
fees.                                                                        following facts: Defendant, Jaimie
                                                                             Michele Genender, purposefully
The only issues submitted to the jury were whether any                       intended to defraud USA Store
party failed to comply with the agreement, and if so, the                    Fixtures LLC from financial gain
amounts of damages and attorney’s fees. The jury found                       by refusing payment on her credit
that appellants failed to comply with *920 the agreement,                    card. Defendant also acted outside

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       5
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)



             of her title and personally defamed                2013). Store Fixtures alleged dismissal was the proper
             and slandered this company in                      remedy because the county court lacked subject matter
             writing. Invoice $2,303.42 damages                 jurisdiction     over    appellants’     newly     pleaded
             for slander $7,697.58.                             counterclaims.2 Appellants responded that severance was
                                                                the proper remedy3 and also requested severance of Store
The petition naming Critter Stuff as a defendant alleged        Fixtures’ newly pleaded claims of breach of contract,
as follows:                                                     quantum meruit, fraudulent inducement, and negligent
                                                                misrepresentation. The county court granted partial relief
             That the defendant is legally                      to both sides, ordering severance of Store Fixtures’
             indebted to the plaintiff in the sum               negligent misrepresentation claim and appellants’ DTPA
             of $10,000.00 based upon the                       claim. At the de novo trial, only the contract claims were
             following facts: Defendant, Jamie                  tried, along with the amounts of attorney’s fees.
             Michele Genender, purposefully
             intended to defraud USA Store
             Fixtures LLC from financial gain
             by refusing payment on her credit                  B. Analysis
                                                                [1]
             card. Defendant also slandered and                     Regardless of whether Store Fixtures alleged a breach
             defamed this company in writing.                   of contract claim in its written petitions in justice court,
             Invoice amount $2,303.42 plus                      the law recognizes a presumption that Store Fixtures
             damages      for     slander      and              orally pleaded its breach of contract claim in justice court.
             defamation.                                        See Gordon v. Zoes, 125 S.W.2d 1049, 1049–50
                                                                (Tex.Civ.App.—Galveston 1939, no writ) (holding that
Both petitions stated, “THAT plaintiff reserves the right       the county court’s judgment was not void based on an
to plead further orally upon trail [sic] of this matter.” See   allegation that the plaintiff brought a new cause of action
Tex.R. Civ. P. 525, 3 Tex. B.J. 607 (1940, repealed 2013)       not pleaded in justice court; “While plaintiff filed certain
(in justice court, “[t]he pleadings shall be oral, except       written pleadings in the justice court, he expressly
where otherwise specially provided”).                           reserved the right in said pleadings to plead orally on the
                                                                trial of the case. It is uniformly held in this State that in
After Store Fixtures appealed to the county court and           cases originating in the justice court, pleadings may be
retained counsel, it filed an amended petition asserting        either oral or written, or partly oral and partly written. In
claims for *921 breach of contract, negligent                   the absence of a showing to the contrary, it will be
misrepresentation, fraud, fraud in the inducement, and          presumed that said written pleadings were supplemented
quantum meruit. Store Fixtures also sought attorney’s           by such oral amendments as cured any defects therein,
fees. Appellants filed counterclaims for breach of contract     and that such pleadings as amended supported the
and     violations      of    the     Deceptive      Trade      judgment rendered by the trial court.”); Garcia v. Rendon,
Practices—Consumer Protection Act (DTPA), Tex. Bus.             59 S.W.2d 881, 881 (Tex.Civ.App.—San Antonio 1933,
& Com.Code Ann. subch. E. Appellants also sought                no writ) (“If the oral plea made by appellee was not
attorney’s fees.                                                pleaded in the justice’s court, appellant should have
                                                                shown it. The mere fact that the justice of the peace did
Store Fixtures filed a plea to the jurisdiction and motion      not note the oral pleadings *922 did not prove that they
to dismiss all of appellants’ counterclaims under former        were not made.”).4 This presumption exists because the
Rule 574a. The rule provided,                                   rules specifically require oral pleadings in the justice
                                                                court. See Tex.R. Civ. P. 525, 3 Tex. B.J. 607 (1940,
                                                                repealed 2013) (“The pleadings shall be oral ...”).5
             Either party may plead any new
             matter in the county or district                   [2]
                                                                  The presumption is rebuttable. See Gordon, 125 S.W.2d
             court which was not presented in
                                                                at 1049–50; Garcia, 59 S.W.2d at 881. For example, a
             the court below, but no new ground
                                                                statement regarding the oral pleadings may be noted on
             of recovery shall be set up by the
                                                                the justice court’s docket. See Tex.R. Civ. P. 525, 3 Tex.
             plaintiff, nor shall any set-off or
                                                                B.J. 607 (1940, repealed 2013) (“The pleadings shall be
             counterclaim be set up by the
                                                                oral ... but a brief statement thereof may be noted on the
             defendant which was not pleaded in
                                                                docket ....”); see also Subcomm. on Interpretation of
             the court below.
                                                                Rules of Civil Procedure, State Bar of Tex., Op. 27–a, 5
                                                                B.J. 287 (1942) (noting that this statement may be
Tex. R Civ. P. 574a, 50 Tex. B.J. 868 (1987, repealed           necessary because “it may become important to show
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Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)



what the old pleadings were with ... contentions that a        suggest that in general (or under any specific
new cause of action has been set up for the first time in      circumstances), a buyer has not breached a sale-of-goods
the county court”).                                            contract as a matter of law when a credit card company
                                                               reverses a charge in favor of the buyer at the buyer’s
[3]
  The record here contains no such notation, but the lack      request. In fact, there is authority that a party’s obtaining
of a notation does not rebut the presumption of oral           a credit card chargeback does not erase liability for
pleading. See Gordon, 125 S.W.2d at 1049–50; Garcia,           obligations owed. See CSL Prop. Mgmt. Co. v.
59 S.W.2d at 881; Amarillo Commercial, 140 S.W. at             Thyssenkrupp Elevator Co., No. 01–11–00665–CV, 2013
378. Nor does the record contain any evidence that Store       WL 396252, at *2, *6 (Tex.App.—Houston [1st Dist.]
Fixtures did not orally plead a breach of contract claim in    Jan. 31, 2013, no pet.) (mem.op.) (upholding summary
the justice court.6 Because appellants did not rebut the       judgment for the plaintiff on its indemnity claim where
presumption of oral pleading, we presume that Store            the factual basis for part of the claim was the defendant’s
Fixtures orally pleaded a breach of contract claim in the      failure to indemnify an amount reversed by a third party’s
justice court, and therefore, the claim was not a new          credit card company). Defendant’s Exhibit No. 3 does not
ground of recovery in the county court.                        conclusively establish that the parties agreed to resolve
                                                               disputes solely under their credit card companies’
Appellants’ first issue is overruled.                          chargeback policies. To the extent there was an
                                                               ambiguity, the jury resolved it in favor of Store Fixtures.
                                                               See Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529
                                                               (Tex.1987) (ambiguity in contract creates question of fact
                                                               for jury).9
       III. SUFFICIENCY OF THE EVIDENCE
[4]                                                            Store Fixtures adduced evidence that it sent appellants the
  Appellants’ second issue is that “there is legally           shelving Genender ordered, that appellants accepted the
insufficient evidence that Jamie Genender or Critter Stuff     shelving, and that Genender initiated a chargeback on her
breached any contractual duty to USA Store Fixtures.”          credit card, resulting in appellants’ failures to pay for the
Appellants argue that there is no evidence to support the      goods accepted.10 A buyer’s failure to *924 pay the
jury’s “yes” answer for each appellant in Jury Question        contract rate for goods accepted constitutes a breach of
No. 1, which asked, “Did Jamie Genender and/or Critter         contract. See Tex. Bus. & Com.Code Ann. 2.607(a); see
Stuff fail to comply with the agreement?” Thus,                also Garden Ridge, L.P. v. Advance Int’l, Inc., 403
appellants challenge the “breach” element of Store             S.W.3d 432, 445 (Tex.App.—Houston [14th Dist.] 2013,
Fixtures’ claim and contend that the claim “must be based      pet. denied) (proper to instruct the jury about what
entirely upon Genender’s action in submitting a dispute of     constitutes acceptance of goods and about “the UCC’s
the transaction *923 through the chargeback process            provision that the buyer must pay the contract rate for
established by her credit card company.”                       goods it accepts”).11 Accordingly, the evidence is legally
                                                               sufficient to support the jury’s affirmative answer to Jury
Appellants contend that their “promise to pay was              Question No. 1.
stipulated upon compliance with the Cardholder
Agreement” because when Store Fixtures charged                 Appellants’ second issue is overruled.
Genender’s credit card, Store Fixtures sent her an
unsigned receipt (Defendant’s Exhibit No. 3), which
states, “I agree to pay above total amount according to
card issuer agreement. (Merchant Agreement if Credit
Voucher).”7 So, because it is undisputed that Store                              IV. PRESENTMENT
Fixtures lost the credit card dispute due to its “failure to
comply” with its merchant account agreement, appellants        In their third issue, appellants contend “the county court
claim they could not possibly have breached the contract       erred in submitting to the jury and entering judgment on
for the sale of the shelving.8                                 [Store Fixtures’] attorney’s fee award because there are
                                                               no pleadings or legally or factually sufficient evidence of
Store Fixtures contends that there is evidence of              timely presentment.” We agree with appellants that there
appellants’ breach because they agreed to purchase goods,      is no evidence to support an implied finding that Store
accepted the goods, and ultimately did not pay for the         Fixtures presented its claim.
goods. We agree with Store Fixtures.
                                                               [5] [6]
                                                                    To recover attorney’s fees for a breach of contract
We find no authority, and appellants have cited none, to       claim under Section 38.001 of the Texas Civil Practice
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Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)



and Remedies Code,                                              Texas Rules of Civil Procedure operates so presentment is
                                                                deemed found. See Adams v. Petrade Int’l, Inc., 754
      (1) the claimant must be represented by an attorney;      S.W.2d 696, 720 (Tex.App.—Houston [1st Dist.] 1988,
                                                                writ denied) (deemed finding on presentment); Atkin v.
      (2) the claimant must present the claim to the opposing   Cobb, 663 S.W.2d 48, 53 (Tex.App.—San Antonio 1983,
      party or to a duly authorized agent of the opposing       writ dism’d) (same). Appellants now challenge the
      party; and                                                sufficiency of the evidence to support the deemed finding.
                                                                See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228–29
      (3) payment for the just amount owed must not have        (Tex.2011) (deemed findings may be reviewed for
      been tendered before the expiration of the 30th day       sufficiency of the evidence); see also Adams, 754 S.W.2d
      after the claim is presented.                             at 720 (legally sufficient evidence supported deemed
                                                                finding on presentment).14
Tex. Civ. Prac. & Rem.Code Ann. § 38.002. Presentment
is a “demand or request for payment or performance,
                                                                Store Fixtures contends that it proved presentment in a
whether written or oral.” Gibson v. Cuellar, 440 S.W.3d
                                                                number of ways: (1) by sending appellants an invoice; (2)
150, 157 (Tex.App.—Houston [14th Dist.] 2013, no pet.)
                                                                by making a demand for payment during the credit card
(citing Jones v. Kelley, 614 S.W.2d 95, 100 (Tex.1981)).
                                                                dispute; (3) by providing appellants discovery responses
No particular form of presentment is required. Id.
                                                                showing a claim for breach of contract; and (4) by
However, merely filing suit for a breach of contract, by
                                                                engaging in settlement negotiations and orally making a
itself, does not constitute presentment. See Huff v. Fid.
                                                                demand for payment during those negotiations. We
Union Life Ins. Co., 158 Tex. 433,312 S.W.2d 493, 500
                                                                address each contention in turn.
(1958) (addressing predecessor statute).12
[7] [8]
     The claimant bears the burden of both pleading and
proving presentment. See, e.g., Gibson, 440 S.W.3d at           A. Invoice
157 (citing Ellis v. Waldrop, 656 S.W.2d 902, 905               [12] [13]
                                                                         Store Fixtures contends that Genender admitted to
(Tex.1983)). “The purpose of the presentment                    receiving an invoice *926 as well as having the credit
requirement is to allow the party against whom the claim        card charge reversed, “thus constituting non-payment of
is asserted an opportunity to pay it or tender performance      the invoice.” Evidence that the plaintiff sent an invoice to
within 30 days after they have notice of the claim without      the defendant can satisfy a plaintiff’s burden to prove
incurring an obligation for attorney’s fees.” Id. (citing       presentment. See Gordon v. Leasman, 365 S.W.3d 109,
Jones, 614 S.W.2d at 100).13                                    116 (Tex.App.—Houston [1st Dist.] 2011, no pet.);
[9]                                                             Roylex, Inc., 559 S.W.2d at 838. But Store Fixtures cites
  Generally, presentment is an issue of fact. See id. at 157    to Plaintiff’s Exhibit No. 1, which is not an “invoice” but
n.7 (trial court’s *925 finding of presentment was a            rather a “quote” dated April 18, 2011. It is undisputed that
finding of fact, not a conclusion of law); see also France      this quote was prepared several weeks before appellants
v. Am. Indem. Co., 648 S.W.2d 283, 286 (Tex.1983) (trial        agreed to purchase any shelving—before any contract was
court erred to conclude that the plaintiff was not entitled     formed—and it did not reflect the parties’ actual
to attorney’s fees when there was some evidence of              agreement as to the amount of shelving and cost of
presentment; “At the very least, a fact issue was raised        shipping.
here as to presentment.”); cf. Roylex, Inc. v. Avco Cmty.
Developers,      Inc.,    559     S.W.2d       833,      838    Because no contract then existed, Store Fixtures had no
(Tex.Civ.App.—Houston [14th Dist.] 1977, no writ)               breach of contract claim against appellants, and there was
(“Since the evidence on presentment was conclusive, that        no “just amount owed” to Store Fixtures. Accordingly,
issue did not have to be submitted to the jury.”); Turner v.    Plaintiff’s Exhibit No. 1 is not evidence of presentment as
Lubbock Cnty. Hosp. Dist., No. 07–96–0272–CV, 1998              a matter of law. See Brainard v. Trinity Universal Ins.
WL 3554, at *5–6 (Tex.App.—Amarillo Jan. 6, 1998, no            Co., 216 S.W.3d 809, 817–19 (Tex.2006) (plaintiff’s
pet.) (not designated for publication) (finding reversible      demand for underinsured motorist benefits made before a
jury charge error because the issue of presentment              court signed a judgment on the motorist’s liability and
“should have been submitted to the jury for                     damages was not evidence of presentment as a matter of
determination” when the evidence was disputed).                 law because at the time of the alleged presentment there
[10] [11]                                                       was no contractual duty to pay; when there is no
      When, as here, the issue of the amount of attorney’s      contractual duty to pay, there is no “just amount owed”
fees is found by the jury without a request for a jury          under Section 38.002; reasoning that a contract claim
finding on the issue of presentment, Rule 279 of the            requires the existence of a duty or obligation that the
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Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)



opposing party has failed to meet); cf. McNeil v. BMC         Store Fixtures refers to an entry for July 12, 2012: “confer
Software Inc., 306 Fed.Appx. 889, 894 (5th Cir.2009)          with opposing counsel re: potential to resolve.” Evidence
(employee’s request that employer promise to pay a bonus      that the parties participated in settlement negotiations,
that had not yet accrued was not presentment as a matter      without more, is no evidence of presentment. See Border
of law; at the time of the request, there was no “just        Gateway, L.L.C. v. Gomez, No. 14–10–01266–CV, 2011
amount owed” and no “claim” to present; request for a         WL 4361485, at *9 (Tex.App.—Houston [14th Dist.]
party to meet its future contractual obligations is not a     Sept. 20, 2011, no pet.) (mem.op.). Such evidence is
claim for a just amount owed).15                              insufficient to prove presentment because it does not
                                                              satisfy the purpose of the presentment requirement: to
                                                              provide the defendant with “the opportunity, by
                                                              undertaking specific action, to avoid paying attorney’s
B. During the Credit Card Dispute                             fees.” Belew v. Rector, 202 S.W.3d 849, 856–57
Store Fixtures contends that it presented its breach of       (Tex.App.— Eastland 2006, no pet.) (evidence that
contract claim by “inform[ing] the credit card company        counsel “had some settlement discussions” was
during the credit card dispute that it would seek legal       insufficient).
action if the charges were reversed,” and by making a
demand for payment “during the entire dispute.” Store         [19]
                                                                 Next, Store Fixtures refers to an affidavit from its
Fixtures cites Defendant’s Exhibits Nos. 26 and 32.           counsel, Jerrad Bloome, where he testified that he made a
                                                              demand for payment of the invoice amount to appellants’
[14]
    Defendant’s Exhibit No. 26 is a one-page document         counsel on July 12, 2012. However, Store Fixtures filed
titled “chargeback notification” apparently sent from         this affidavit after the jury had reached a verdict, only in
“merchant services” to Store Fixtures to notify Store         response to appellants’ motion to disregard the jury’s
Fixtures of the chargeback and explain what Store             answer to Jury Question No. 5 concerning attorney’s fees.
Fixtures could do to contest the chargeback. This             Appellants objected to the trial court’s consideration of
document does not show a demand for payment from              the affidavit,17 but the trial court overruled the objection.
Store Fixtures.
                                                              Although a trial court has discretion to permit additional
[15]
   Defendant’s Exhibit No. 32 consists of about ninety        evidence to be offered at any time, “in a jury case no
pages of documents from Bank of America Merchant              evidence on a controversial matter shall be received after
Services, Store Fixtures’ merchant account provider.          the verdict of the jury.” Tex.R. Civ. P. 270. Here, the
Appellants had requested, among other things, any and all     issue of presentment was controverted. Appellants had
records reflecting “any communications by Chase,              pleaded in their answer that Store Fixtures failed to
Merchant Services, *927 and/or the parties.” We have          present its claim, and appellants objected during trial to
reviewed the exhibit. It contains no demand for payment       the submission of Jury Question No. 5 because Store
from Store Fixtures.                                          Fixtures had failed to offer any evidence of presentment.
                                                              After the jury’s verdict, appellants filed a motion to
                                                              disregard the jury’s finding on attorney’s fees and an
                                                              amended JNOV on the issue because there was no
C. Discovery Responses                                        evidence of presentment. At the hearing on the
[16]
    Store Fixtures contends that it presented its claim by    post-verdict motions, after the trial court had overruled
providing appellants “discovery responses,” which             appellants’ objection to the affidavit, the trial court
“show[ed] Plaintiff’s claim for breach of contract, the       allowed appellants to make a record about the lack of
basis of the claim and it[s] claim for damages.” Store        presentment. Counsel for appellants, *928 Jan Fox,
Fixtures does not cite to the record for this assertion nor   testified that she had no records of any July 12
describe in any way how a demand for payment was made         conversation with Bloome, that it would have been her
through its “discovery response.”16                           practice to document such a conversation, and that no
                                                              such conversation occurred based on her records. 18

                                                              Under these circumstances, the trial court abused its
D. Settlement Negotiations                                    discretion by reopening the evidence on a controverted
[17] [18]
         Finally, Store Fixtures contends that it orally      matter after dismissing the jury, and the trial court should
presented its claim to appellants’ counsel during             have granted appellants’ motion to disregard the jury’s
settlement negotiations. As evidence, Store Fixtures first    finding on the issue of attorney’s fees and entered
cites to Plaintiff’s Exhibit No. 6, which consists of         judgment accordingly. See Helping Hands Home Care,
copious billing records from Store Fixtures’ lawyers.
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Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)



Inc. v. Home Health of Tarrant Cnty., Inc., 393 S.W.3d                        Appellant’s first and second issues are overruled, but
492, 516–17 (Tex.App.—Dallas 2013, pet. denied) (trial                        appellants’ third issue is sustained. We modify the trial
court correctly granted JNOV on attorney’s fees and                           court’s judgment to delete the award of attorney’s
refused to reopen the case for evidence of presentment                        fees—in particular, the following paragraph:
because “the evidence is insufficient to show Specialties
met the procedural requirements for the award”); see also                                   It is hereby ORDERED that Jamie
Univ. of Tex. at Austin v. Ables, 914 S.W.2d 712, 718                                       Michele Genender and Critter
(Tex.App.—Austin 1996, no writ) (trial court abused its                                     Stuff, L.L.C., jointly and severally,
discretion under Rule 270 by considering evidence about                                     pay to USA Store Fixtures the
the amount of attorney’s fees after the jury’s verdict;                                     amount of $38,000, representing
rendering take-nothing judgment on attorney’s fees), cited                                  the reasonable and necessary
with approval in Hatfield v. Solomon, 316 S.W.3d 50, 67                                     attorneys’ fees in this case and a
(Tex.App.—Houston [14th Dist.] 2010, no pet.).                                              contingent award of attorneys’ fees
                                                                                            in the amount of $20,000 if this
Because there was no evidence before the jury to support                                    case is appealed to the Court of
a deemed finding that Store Fixtures presented its claim to                                 Appeals, and $20,000 if this case is
appellants, we sustain appellants’ third issue.19                                           appealed to the Supreme Court of
                                                                                            Texas.

                                                                              We affirm the trial court’s judgment as modified.
                      V. CONCLUSION

    Footnotes
1        See Tex. Gov’t Code Ann. 27.031(d) (“A corporation need not be represented by an attorney injustice court.”).

2        See Hatmaker v. Farmers Tex. Cnty. Mut. Ins. Co., No. 14–98–00552–CV, 1999 WL 459788, at *3 (Tex.App.—Houston [14th
         Dist.] July 8, 1999, no pet.) (not designated for publication); Kramek v. Stewart, 648 S.W.2d 399, 401–02 (Tex.App.—San
         Antonio 1983, no writ); Tex. Co. v. Henderson, 154 S.W.2d 911, 911 (Tex.Civ.App.—El Paso 1941, no writ); Racugno v. Hanovia
         Chem. & Mfg. Co., 110 S.W.2d 249, 250 (Tex.Civ.App.—Fort Worth 1937, no writ); see also Neal v. Beck Funeral Home, 131
         S.W.2d 778, 780–81 (Tex.Civ.App.—Fort Worth 1939, writ dism’d).
3        See New Wave Props., Inc. v. Wikoff, No. 13–11–00762–CV, 2012 WL 2929623, at *3 (Tex.App.—Corpus Christi July 19, 2012,
         no pet.) (mem.op.); Harrill v. A.J.’s Wrecker Servs., Inc., 27 S.W.3d 191, 195 (Tex.App.—Dallas 2000, pet. dism’d w.o.j.); D’Tel
         Commc’ns v. Roadway Package Serv., Inc., 987 S.W.2d 213, 214 (Tex.App.—Eastland 1999, no pet.).
4        See also Fort Worth & D.C Ry. Co. v. Brewer, 1 S.W.2d 686, 686 (Tex.Civ.App.—Amarillo 1928, no writ) (“If the record does not
         disclose that the written pleadings constituted the whole pleadings, it will be presumed that there were oral pleadings necessary to
         support the judgment.”); Amarillo Commercial Co. v. Chicago, R.I. & G. Ry. Co., 140 S.W. 377, 378 (Tex.Civ.App.—Amarillo
         1911, no writ) (“[If] no oral pleadings on the part of the plaintiff are noted on the docket, it will be presumed that there was some
         oral pleading by plaintiff at the time the account was filed, from which the justice received that information, and which he failed to
         note upon the docket.”).
5        Parties have pleaded orally in justice courts since the early days of the Republic, and the practice continued in early statehood.
         See, e.g., Act approved Nov. 4, 1837, 2d Cong., R.S., § 1, 1837 Repub. Tex. Laws 14, reprinted in 1 H.P.N. Gammel, The Laws of
         Texas 1822–1897, at 1356 (Austin, Gammel Book Co. 1898) (“[A]ll civil proceedings before justices of the peace, shall be had in a
         summary manner, and without the formality of a petition in writing....”); Act approved Aug. 13, 1870, 12th Leg., C.S., ch. 65, § 7,
         1870 Tex. Gen. Laws 87, 93, reprinted in 6 H.P.N. Gammel, supra, at 261, 267 (“The pleading in a justice’s court shall be
         oral....”).
6        In fact, in the first pleading filed in county court—appellants’ answer—appellants pleaded an “affirmative defense of failure of
         consideration,” thus indicating that Store Fixtures had previously pleaded a breach of contract claim. At the time, the only written
         pleadings Store Fixtures had filed were its justice court petitions.
7        Although some of these words on Defendants’ Exhibit No. 3 appear illegible, Store Fixtures’ does not contest appellants’
         interpretation, so we accept as true this factual allegation. See Tex.R.App. P. 38.1(g) ( “In a civil case, the court will accept as true
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Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)



      the facts stated unless another party contradicts them.”).
8     Appellants suggest this case has
          enormous implications for consumers in Texas and across the country [because it] addresses an all-too-common occurrence
          but a novel legal question: whether a consumer who properly and successfully disputes a credit card charge pursuant to a
          merchant’s agreement with its credit card company may nevertheless be sued by and found liable to that same merchant for
          the full disputed amount despite the merchant’s failure to comply with such agreement.
9     Appellants also ask this court to consider several excluded exhibits related to the credit card dispute, including Genender’s
      two-page complaint filed with her credit card company and a notification from Store Fixtures’ credit card company that the dispute
      was resolved in Genender’s favor. These exhibits do not support appellants’ construction of the contract or remove any ambiguity
      about the terms of the contract.
10    There was conflicting evidence about whether appellants accepted the shelving and whether the shelving conformed to the
      contract. But the jury resolved this conflicting evidence in Store Fixtures’ favor, finding that appellants failed to comply with the
      agreement and Store Fixtures did not fail to comply with the agreement. We must defer to the jury’s resolution of conflicting
      evidence. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 820–21 (Tex.2005).
11    The jury charge here defines “acceptance” and declares, “A buyer must pay at the contract rate for any goods accepted.”

12    See also Gutierrez v. Wright Lawfirm, PLLC, No. 05–10–00725–CV, 2012 WL 1898950, at *6 (Tex.App.—Dallas Apr. 27, 2012,
      no pet.) (mem.op.); Belew v. Rector, 202 S.W.3d 849, 857 (Tex.App.—Eastland 2006, no pet.); Harrison v. Gemdrill Int’l, Inc.,
      981 S.W.2d 714, 719 (Tex.App.—Houston [1st Dist.] 1998, pet. denied); Evans Cooperage of Houston, Inc. v. Port Drum Co.,
      No. C14–92–00966–CV, 1994 WL 7243, at *4 (Tex.App.—Houston [14th Dist.] Jan. 13, 1994, writ denied) (not designated for
      publication); Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 904 (Tex.App.—Austin 1991, no pet.); Mackey v. Mackey, 721
      S.W.2d 575, 579 (Tex.App.—Corpus Christi 1986, no writ).
13    The parties dispute when exactly presentment must be made, and this court appears to have conflicting precedent on the subject.
      Compare Caldwell & Hurst v. Myers, 714 S.W.2d 63, 65 (Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (“Proper
      presentment is the assertion of a claim and a request for payment made 30 days before initiation of a suit.”), with Peissel v. Peissel,
      620 S.W.2d 796, 800 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ) (“The rule in Texas is presentment of the claim must be
      made at least 30 days before trial, even if made after the suit is filed.”), and Cano v. Nino’s Paint & Body Shop, No.
      14–08–00033–CV, 2009 WL 1057622, at *7 (Tex.App.—Houston [14th Dist.] Apr. 16, 2009, no pet.) (mem.op.) (“Presentment
      may be made either before or after filing suit, provided it is made at least 30 days before judgment.”). Because we hold that Store
      Fixtures failed to prove presentment under the latest timeframe possible—30 days before judgment—we need not resolve when
      presentment must be made.
14    An award of attorney’s fees must be reversed if there is no evidence of presentment. See Helping Hands Home Care, Inc. v. Home
      Health of Tarrant Cnty., Inc., 393 S.W.3d 492, 516–17 (Tex.App.—Dallas 2013, pet. denied) (trial court correctly granted JNOV
      denying attorney’s fees because there was no evidence of presentment); Border Gateway, L.L.C. v. Gomez, No. 14–10–01266–CV,
      2011 WL 4361485 (Tex.App.—Houston [14th Dist.] Sept. 20, 2011, no pet.) (mem.op.) (trial court abused its discretion in a bench
      trial by awarding attorney’s fees because there was “no evidence” of presentment); Edinburg Meat Prods. Co. v. Vernon Co., 535
      S.W.2d 432, 437 (Tex.Civ.App.—Corpus Christi 1976, no writ) (sustaining “no evidence” point on presentment issue).
15    Although not cited by Store Fixtures on appeal, Plaintiff’s Exhibit No. 3 is an “invoice” contained in this the record. It is dated
      May 3, 2011, the date that appellants paid for the shelving on Genender’s credit card. But it shows a “Payments/Credits” of the full
      amount of the invoice and a “balance due” of $0.00. This does not show a demand for payment on an existing claim for a just
      amount owed. Further, we note that Store Fixtures contends that nonpayment occurred when the credit card charge was reversed.
      But Store Fixtures’ president testified that Store Fixtures never demanded payment or contacted Genender about a contract claim
      before initiating suit in the justice court. There is no evidence that Store Fixtures sent an invoice to appellants showing a balance
      owing—no demand for payment.
16    We have reviewed Exhibit C to Store Fixtures’ response to appellants’ motion to disregard the jury’s answer to Jury Question No.
      5 regarding attorney’s fees, which is Store Fixtures’ response to appellants’ request for disclosures. The document does not
      demand payment of the claim but rather explains the legal theories and factual bases for the claim. Regardless, the trial court would
      have abused its discretion by considering the document for the same reasons articulated below in Part IV.D of this opinion
      regarding the affidavit.
17    Appellants objected because the affidavit was “an improper and untimely attempt to supplement the record before the jury.”


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      11
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)




18    Although Bloome testified before the jury about the amount of his fees, he did not testify about the alleged July 12 demand.

19    Because we conclude Store Fixtures failed to prove presentment, we do not address appellants’ contention that Store Fixtures
      failed to plead presentment. See Tex.R.App. P. 47.1.




 End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   12
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)




                      170 S.W.3d 242
                  Court of Appeals of Texas,                    Affirmed in part, reversed in part, and remanded.
                            Dallas.

       Dennis NAUSLAR and Nauslar Investments,
                   L.L.C., Appellant
                           v.                                    West Headnotes (34)
      COORS BREWING CO. and Golden Distributing
              Enterprises, L.P., Appellees.
                                                                [1]
                                                                        Appeal and Error
          No. 05–04–00704–CV. | Aug. 19, 2005.                            Cases Triable in Appellate Court

                                                                        Because the question of standing is a legal
                                                                        question, the appellate court reviews de novo a
Synopsis
                                                                        trial court’s ruling on a plea to the jurisdiction.
Background: Individual, who was sole owner of limited
liability company (LLC) which had been both limited
partner in beer distributorship limited partnership and                 3 Cases that cite this headnote
general partner in limited partnership’s general partner,
and the LLC, brought claims, personally and on behalf of
limited partnership, against brewery for breach of contract
and violation of Texas Beer Industry Fair Dealing Law
(BIFDL), and against brewery and its assignee for               [2]
                                                                        Action
conspiracy, negligence per se, and tortious interference,                 Persons entitled to sue
relating to defendants’ conduct in blocking limited
partnership’s proposed joint venture with another                       Standing is a component           of   a    court’s
distributor, with brewery eventually approving of sale of               subject-matter jurisdiction.
limited partnership to the other distributor. The 193rd
District Court, Dallas County, David Evans, J., granted
defendants’ plea to the jurisdiction, based on lack of                  5 Cases that cite this headnote
standing, and denied attorney fee award to brewery under
BIFDL. Cross-appeals were taken.

                                                                [3]
                                                                        Courts
Holdings: The Court of Appeals, Michael J. O’Neill, J.,                   Allegations, pleadings, and affidavits
held that:
                                                                        The plaintiff has the burden of alleging facts that
[1]
   individual plaintiff        lacked   standing   to   bring           affirmatively      demonstrate       a      court’s
common-law claims;                                                      subject-matter jurisdiction to hear a cause.
[2]
      LLC lacked standing to bring common-law claims;
                                                                        1 Cases that cite this headnote
[3]
      plaintiffs lacked standing to bring claims under BIFDL;
[4]
  BIFDL does not prohibit a beer distributor from
making a warranty of non-assignment of BIFDL claims;            [4]
                                                                        Pleading
[5]
   plaintiffs lacked capacity to sue on behalf of limited                 Plea to the Jurisdiction
partnership; and
                                                                        A plea to the jurisdiction challenges a trial
[6]
  brewery was entitled to prevailing-party attorney fees                court’s authority to hear a case by alleging that
under BIFDL.                                                            the factual allegations in the plaintiff’s
                                                                        pleadings, when taken as true, fail to invoke the
                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   1
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



       trial court’s subject-matter jurisdiction.                   personally aggrieved by the alleged wrong.


       1 Cases that cite this headnote                              3 Cases that cite this headnote




[5]                                                          [9]
       Pleading                                                     Action
         Construction in General                                      Persons entitled to sue

       The court construes the allegations in the                   A person has “standing” to sue if: (1) he has
       pleadings in favor of the pleader.                           sustained, or is immediately in danger of
                                                                    sustaining, some direct injury as a result of the
                                                                    wrongful act of which he complains; (2) he has a
       Cases that cite this headnote                                direct relationship between the alleged injury
                                                                    and claim sought to be adjudicated; (3) he has a
                                                                    personal stake in the controversy; (4) the
                                                                    challenged action has caused the plaintiff some
[6]                                                                 injury in fact, either economic, recreational,
       Pleading                                                     environmental, or otherwise; or (5) he is an
         Amendments following sustaining of pleas                   appropriate party to assert the public’s interest in
                                                                    the matter, as well as his own.
       When a plaintiff fails to plead facts that
       establish subject-matter jurisdiction, but the
       petition does not affirmatively demonstrate                  14 Cases that cite this headnote
       incurable defects in jurisdiction, the issue is one
       of pleading sufficiency and the plaintiff should
       be afforded the opportunity to amend after
       granting of plea to the jurisdiction.
                                                             [10]
                                                                    Action
                                                                      Persons entitled to sue
       1 Cases that cite this headnote
                                                                    Without a breach of a legal right belonging to
                                                                    the plaintiff, the plaintiff has no standing to
                                                                    litigate.
[7]
       Pleading
         Amendments following sustaining of pleas                   5 Cases that cite this headnote

       If the pleadings affirmatively negate the
       existence of subject-matter jurisdiction, then a
       plea to the jurisdiction may be granted without
                                                             [11]
       allowing the plaintiff an opportunity to amend.              Action
                                                                      Persons entitled to sue

       Cases that cite this headnote                                Only the person whose primary legal right has
                                                                    been breached may seek redress for an injury.


                                                                    10 Cases that cite this headnote
[8]
       Action
         Persons entitled to sue

       A person has “standing” to sue when he is
                                                             [12]
                                                                    Action

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    2
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



         Persons entitled to sue                                 brewery and its assignee for conspiracy,
                                                                 negligence per se, and tortious interference, so
       An individual stakeholder in a legal entity does          as to recover, on his own behalf, damages for
       not have a right to recover personally for harms          injuries to limited partnership that diminished
       done to the legal entity.                                 the value of individual’s ownership interest and
                                                                 affected his prospective employment, with such
                                                                 claims relating to brewery’s invocation of its
       6 Cases that cite this headnote                           right under its distributorship agreement with
                                                                 limited partnership to negotiate exclusively to
                                                                 buy limited partnership, brewery’s subsequent
                                                                 assignment of that right, and brewery’s and
[13]                                                             assignee’s efforts to block the joint venture, with
       Action                                                    brewery eventually approving of outright sale of
         Persons entitled to sue                                 limited partnership to other distributor; right of
                                                                 recovery for injuries to limited partnership was
       Where damage is to the business entity’s worth,           limited partnership’s alone.
       the individual stakeholder cannot personally
       recover, whether the damages sought are in
       terms of diminished value of an ownership                 6 Cases that cite this headnote
       interest or loss of employee benefits.


       1 Cases that cite this headnote
                                                          [16]
                                                                 Partnership
                                                                   Persons entitled to sue;  standing

[14]                                                             Limited liability company (LLC), as both former
       Partnership                                               limited partner in beer distributorship limited
         Partnership or Partners as Plaintiffs                   partnership and former general partner in limited
                                                                 partnership’s general partner, lacked standing to
       A partner has no individual, separate cause of            sue brewery for breach of contract, and to sue
       action for losses suffered by reason of tortious          brewery and its assignee for conspiracy,
       interference with a contract between the                  negligence per se, and tortious interference, so
       partnership and a third party; damages for loss           as to recover damages, on behalf of LLC, for
       in value of the partnership interest or the               injuries to limited partnership that diminished
       partner’s employment losses are subsumed in               the value of LLC’s ownership interest, with such
       the partnership’s causes of action.                       claims relating to brewery’s conduct, in
                                                                 response to proposal for joint venture between
       5 Cases that cite this headnote                           limited partnership and another beer distributor,
                                                                 in invoking its right under its distributorship
                                                                 agreement with limited partnership to negotiate
                                                                 exclusively to buy limited partnership,
                                                                 brewery’s subsequent assignment of that right,
[15]
       Partnership                                               and brewery’s and assignee’s efforts to block the
         Persons entitled to sue;  standing                      joint venture, with brewery eventually
                                                                 approving of outright sale of limited partnership
       Individual who was sole owner of limited                  to other distributor; right of recovery for injuries
       liability company (LLC) which had been both               to limited partnership was limited partnership’s
       limited partner in beer distributorship limited           alone, and LLC no longer held ownership
       partnership and general partner in limited                interest in limited partnership.
       partnership’s general partner, and who was also
       prospective company manager for proposed
                                                                 4 Cases that cite this headnote
       joint venture between limited partnership and
       another beer distributor, lacked standing to sue
       brewery for breach of contract, and to sue
              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                  3
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



                                                                     generally interprets the statute according to its
                                                                     plain meaning.
[17]
       Action
         Persons entitled to sue
                                                                     Cases that cite this headnote
       Standing to sue can be predicated upon either
       statutory or common-law authority.

                                                              [22]
       3 Cases that cite this headnote                               Statutes
                                                                       Language

                                                                     The court begins statutory interpretation by
                                                                     examining the exact wording of the statute and
[18]
       Action                                                        applying the tenet that the legislature chooses its
         Persons entitled to sue                                     words carefully and means what it says.

       Common-law rules of standing apply unless
       statutory authority for standing exists.                      2 Cases that cite this headnote


       3 Cases that cite this headnote
                                                              [23]
                                                                     Statutes
                                                                       Statute as a Whole;  Relation of Parts to
                                                                     Whole and to One Another
[19]
       Appeal and Error
         Cases Triable in Appellate Court                            The court determines legislative intent from the
                                                                     entire act and not just its isolated portions.
       The appellate court reviews matters of statutory
       construction de novo.
                                                                     6 Cases that cite this headnote

       Cases that cite this headnote

                                                              [24]
                                                                     Intoxicating Liquors
                                                                       Judicial review and enforcement
[20]
       Statutes
         Intent                                                      Neither an individual, who was sole owner of
                                                                     limited liability company (LLC) which had been
       In construing a statute, the court’s objective is to          both limited partner in beer distributorship
       determine and give effect to the legislature’s                limited partnership and general partner in
       intent.                                                       limited partnership’s general partner, nor the
                                                                     LLC, was the distributor under brewery’s
                                                                     distributorship     agreement      with    limited
       3 Cases that cite this headnote                               partnership, and thus, individual and LLC
                                                                     lacked standing to bring action against brewery
                                                                     under Texas Beer Industry Fair Dealing Law
                                                                     (BIFDL) for unreasonably withholding approval
[21]                                                                 of transfer of distributorship interest. V.T.C.A.,
       Statutes                                                      Alcoholic Beverage Code §§ 102.76(a),
           Plain language;  plain, ordinary, common, or              102.79(a).
       literal meaning

       If a statute’s meaning is unambiguous, the court              Cases that cite this headnote

              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     4
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



                                                                    liability company (LLC) which had been both
                                                                    limited partner in beer distributorship limited
                                                                    partnership and general partner in limited
                                                                    partnership’s general partner, and the LLC, after
[25]
       Intoxicating Liquors                                         sale of limited partnership’s assets to another
          Quantity, and sale at retail or wholesale;                distributor, without any pre-sale assignment to
        regulation of wholesalers in general                        individual and LLC of limited partnership’s
                                                                    causes of action against brewery and its
       A beer distributor’s representation, in a release,           assignee, lacked capacity to sue brewery and its
       that it has not assigned its statutory claims under          assignee, on behalf of limited partnership, for
       the Texas Beer Industry Fair Dealing Law                     breach of contract, and to sue brewery and its
       (BIFDL), if any, to a third party does not violate           assignee, on behalf of limited partnership, for
       the provision of BIFDL prohibiting agreements                conspiracy, negligence per se, and tortious
       varying the effect of BIFDL, because BIFDL                   interference, relating to brewery’s conduct, in
       grants a right of action only to distributors or             response to proposal for joint venture between
       manufacturers who are parties to a                           limited partnership and other distributor, in
       distributorship agreement. V.T.C.A., Alcoholic               invoking its right under its distributorship
       Beverage Code §§ 102.72(c), 102.79(a).                       agreement with limited partnership to negotiate
                                                                    exclusively to buy limited partnership,
                                                                    brewery’s subsequent assignment of that right,
       1 Cases that cite this headnote                              and brewery’s and assignee’s efforts to block the
                                                                    joint venture, with brewery eventually
                                                                    approving of outright sale of limited partnership
                                                                    to other distributor.
[26]
       Action
         Persons entitled to sue                                    3 Cases that cite this headnote
       Parties
         Capacity and interest in general

       A plaintiff must have both standing and capacity
       to bring a lawsuit.                                   [29]
                                                                    Corporations and Business Organizations
                                                                      Construction, operation, and effect
                                                                    Corporations and Business Organizations
       1 Cases that cite this headnote                                Assumption of or Succession to Transferor’s
                                                                    Debts and Liabilities

                                                                    When a business entity is acquired in its entirety
[27]                                                                by another, in the absence of specific terms to
       Parties
                                                                    the contrary, both the liabilities and assets of the
         Capacity and interest in general
                                                                    acquired company are transferred to the
                                                                    purchaser.
       A party has capacity to sue when it has legal
       authority to act, regardless of whether it has a
       justiciable interest in the controversy.                     Cases that cite this headnote

       Cases that cite this headnote

                                                             [30]
                                                                    Evidence
                                                                      Pleadings
[28]
       Partnership
                                                                    Individual, who was sole owner of limited
         Persons entitled to sue;  standing
                                                                    liability company (LLC) which had been both
                                                                    limited partner in beer distributorship limited
       Individual, who was sole owner of limited
              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     5
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



       partnership and general partner in limited
       partnership’s general partner, and the LLC, by
       making assertion of fact, in their petition against
       brewery, that brewery had conditioned its
                                                             [33]
       approval of sale of limited partnership to another            Intoxicating Liquors
       distributor on limited partnership warranting that              Judicial review and enforcement
       it had not assigned its claims against brewery to
       another party, judicially admitted that individual            Prevailing-party attorney fee award is
       and LLC had not been assigned legal title to                  mandatory, in provision of Texas Beer Industry
       limited partnership’s causes of action against                Fair Dealing Law (BIFDL) stating that
       brewery, which admission was relevant to                      prevailing party “shall” recover reasonable
       whether individual and LLC had capacity to sue                attorney fees in an action for violation of
       brewery on behalf of limited partnership.                     BIFDL. V.T.C.A., Alcoholic Beverage Code §
                                                                     102.79(a), (c).

       1 Cases that cite this headnote
                                                                     3 Cases that cite this headnote



[31]
       Pleading
                                                             [34]
         Statement of cause of action in general                     Intoxicating Liquors
                                                                       Judicial review and enforcement
       A party may plead himself out of court, e.g., the
       plaintiff may plead facts which affirmatively                 Brewery was “prevailing party,” and therefore
       negate his cause of action.                                   was entitled to prevailing-party attorney fees
                                                                     under Texas Beer Industry Fair Dealing Law
                                                                     (BIFDL), in action brought under BIFDL by
       Cases that cite this headnote                                 individual who was sole owner of limited
                                                                     liability company (LLC) which had been both
                                                                     limited partner in beer distributorship limited
                                                                     partnership and general partner in limited
[32]
                                                                     partnership’s general partner, and by the LLC,
       Appeal and Error                                              where the court concluded that individual and
         Reversal ineffectual or not beneficial                      LLC lacked standing to sue under BIFDL.
                                                                     V.T.C.A., Alcoholic Beverage Code §
       Appellate court would not remand to trial court,              102.79(a), (c).
       so that individual, who was sole owner of
       limited liability company (LLC) which had been
       both limited partner in beer distributorship                  3 Cases that cite this headnote
       limited partnership and general partner in
       limited partnership’s general partner, and the
       LLC, could plead more specifically a basis for
       their capacity to sue brewery on behalf of
       limited partnership, for brewery’s interference
       with limited partnership’s proposed joint             Attorneys and Law Firms
       venture, where remand would be futile;
       individual and LLC had already in their               *246 Martin J. Siegel, Houston, TX, for Appellant.
       pleadings affirmatively negated that they owned
                                                             Jon P. Christiansen, Michael J. Aprahamian, Foley &
       legal title to the causes of action, asserting
                                                             Lardner LLP, Milwaukee, WI, Monica Wiseman Latin, J.
       instead a legal theory to overcome their lack of
                                                             Michael Hughes, Rodney H. Lawson and John Franklin
       legal title, which theory the appellate court
                                                             Guild, Carrington, Coleman, Sloman & Blumenthal,
       rejected.
                                                             L.L.P., David Bryant, Diamond, McCarthy, Taylor,
                                                             Finley, Bryant & Lee, Sean Joseph McCaffity, Dallas,
       2 Cases that cite this headnote                       TX, for Appellee.
              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 6
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



Before Justices BRIDGES, O’NEILL, and MAZZANT.                 rejected the deal. Instead, Coors invoked its right under
                                                               the distributorship agreement to negotiate exclusively to
                                                               buy Willow. It assigned that exclusive right to Golden
                                                               Distributing Enterprises, L.P. (Golden). Over the next
                                                               year, according to Plaintiffs, it became clear that Golden
                                                               could not feasibly consolidate with or purchase Willow.
                        OPINION                                Subsequently, Nauslar approached Miller again, but this
                                                               time Miller was interested in only an outright purchase of
Opinion by Justice O’NEILL.                                    Willow. Coors approved an outright sale to Miller. Coors,
                                                               relying on a clause in the distributorship agreement,
The trial court granted the Defendants’ pleas to the           required Nauslar to sign a “mutual release” on behalf of
jurisdiction for lack of standing *247 on all of the           Willow. Under that agreement, both Willow and Coors
Plaintiffs’ claims and dismissed the case. We conclude         released any and all claims each had against the other and
that (1) Plaintiff–Appellants lack standing on the statutory   also warranted that neither party had assigned any such
and common-law causes of action brought on their own           claims to a third party. Nauslar signed the release, and
behalf. Concerning the causes of action asserted “on           Miller bought Willow and DEN L.P. from Nauslar and
behalf of” the business entity that they sold, they            Nausar Investments for $57.8 million.
affirmatively negate having capacity to bring those
claims. Accordingly, we affirm the trial court’s dismissal     Nauslar and Nauslar Investments sued Coors, alleging it
of all of Plaintiffs’ claims. We reverse the trial court’s     unreasonably disapproved the proposed Consolidation
order denying Coors attorneys’ fees and remand that            with Miller, in violation of the Texas Beer Industry Fair
issue.                                                         Dealing Law. They also brought a number of
                                                               common-law claims against Coors and Golden, including
                                                               one for tortious interference with the Consolidation. After
                                                               two hearings, the trial court granted Coors’s and Golden’s
Facts                                                          pleas to the jurisdiction and dismissed all of the Plaintiffs’
The crux of this dispute is the disapproval by Coors           causes of action for lack of standing. Plaintiffs brought
Brewing Co. (“Coors”) of a proposed consolidation in           this appeal, challenging the trial courts’ dismissal of their
2001 between Willow Distributors, L.P. (“Willow”), an          statutory and common-law causes of action.
entity distributing Coors beer in the Dallas area, and the
distributor of Miller beer, Miller of Dallas (“Miller”).
Plaintiffs alleged that Willow and Miller had agreed to a
joint venture that would be operated by a new entity,          *248 Summary
United LP. Willow and Miller would each own 50% of             Plaintiffs seek to bring their claims in their own right, as
the new entity, and the cash flow from the new business        individual claims brought on their own behalf. They also
would be shared equally. In addition, Nauslar asserts the      assert—as former partners and owners of Willow—claims
new enterprise would employ him as a company manager.          “on behalf of” Willow, for alleged injuries to Willow
                                                               itself, but with recovery going to Plaintiffs, not Willow.
At the time of the proposed consolidation (the                 First, we address the individual claims and conclude that
“Consolidation”), neither of the Plaintiffs was party to the   Plaintiffs lack standing to bring either the common-law or
distributorship agreement with Coors. Rather, Willow was       statutory causes of action in their own right. We address
the contracting party and the named distributor under the      next the claims brought “on behalf of” Willow, i.e., the
distributor agreement with Coors. Plaintiff Dennis             Willow partnership’s claims. We conclude that Plaintiffs,
Nauslar, individually, did not have a direct ownership         in their live pleading, affirmatively negate that they have
interest in Willow, and Plaintiff Nauslar Investments was      capacity to bring claims on behalf of Willow. Having
the limited partner in Willow. The structure underpinning      rejected their other theory by which to allege capacity, we
Willow is as follows: Willow’s general partner was DEN         affirm dismissal of the claims asserted on behalf of
L.P. and its limited partner was Nauslar Investments LLC.      Willow. We conclude that an award of attorney’s fees
Nauslar, individually, was 100% owner of Nauslar               under the statute is mandatory if one party prevails in an
Investments, which in turn was the limited partner in          action under that statute, and thus we reverse the trial
DEN L.P (general partner in Willow).                           court’s order denying Coors its attorney’s fees and
                                                               remand that issue.
When, in September 2001, Nauslar presented the
proposed Consolidation to Coors for its approval, Coors

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       7
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



I. Common–Law Causes of Action Asserted as                        jurisdiction, but the petition does not affirmatively
Individual Right of Action                                        demonstrate incurable defects in jurisdiction, the issue is
We address whether the Plaintiffs have standing, in their         one of pleading sufficiency and the plaintiff should be
own right, to bring and personally recover on the                 afforded the opportunity to amend. County of Cameron v.
common-law causes of action1 they assert against                  Brown, 80 S.W.3d 549, 555 (Tex.2002). On the other
Defendants. We note first the injury asserted. Plaintiffs         hand, if the pleadings affirmatively negate the existence
allege that Willow was weakened by Coors’s efforts to             of jurisdiction, then a plea to the jurisdiction may be
force a deal with Golden, and that Willow’s value                 granted without allowing the plaintiff an opportunity to
declined between the time of the disapproval in 2001 and          amend. Id.
the subsequent sale to Miller in 2003. Specifically,
                                                                  [8] [9]
Plaintiffs assert damages as follows: Nauslar,                          A person has standing to sue when he is personally
individually, seeks redress for (1) the distributions, profits    aggrieved by the alleged wrong. Nootsie Ltd. v.
and other benefits of ownership he would have reaped as           Williamson County Appraisal Dist., 925 S.W.2d 659, 661
the sole owner of Willow and other corporate entities, had        (Tex.1996). A person has standing if (1) he has sustained,
Coors approved the Consolidation; and (2) loss of salary,         or is immediately in danger of sustaining, some direct
bonuses and other employment compensation he would                injury as a result of the wrongful act of which he
have been paid by United (the operating entity to be              complains; (2) he has a direct relationship between the
formed      upon      Consolidation)       as     well     as     alleged injury and claim sought to be adjudicated; (3) he
employment-related losses as an employee of Willow.               has a personal stake in the controversy; (4) the challenged
Nauslar Investments, Inc. asserts that, as the former             action has caused the plaintiff some injury in fact, either
general partner of DEN LP (the general partner of                 economic, recreational, environmental, or otherwise; or
Willow) and as the former limited partner of Willow, it           (5) he is an appropriate party to assert the public’s interest
was “injured to the same degree as—and could assert all           in the matter, as well as his own. Precision Sheet Metal
claims of DEN LP and Willow.”                                     Mfg. Co., Inc. v. Yates, 794 S.W.2d 545, 552
                                                                  (Tex.App.-Dallas 1990, writ denied).
In sum, Nauslar seeks damages for loss of the benefits of
                                                                  [10] [11]
ownership and employment-related losses. Nauslar                          Without a breach of a legal right belonging to a
Investments, as former general partner of the general             plaintiff, that plaintiff has no standing to litigate. Exxon
partner of Willow, seeks damages that mirror those                Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.-Tyler 2002,
suffered by Willow.                                               pet. denied); Cadle Co. v. Lobingier, 50 S.W.3d 662,
                                                                  669–70 (Tex.App.-Fort Worth 2001, pet. denied);
                                                                  Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex.App.-Fort
                                                                  Worth 2001, no pet.). Only the person whose primary
A. Standard of Review and Principles Governing                    legal right has been breached may seek redress for an
Standing                                                          injury. Nobles v. Marcus, 533 S.W.2d 923, 927
[1] [2] [3] [4] [5]
                    Because the question of standing is a legal   (Tex.1976) (defrauded party only can bring suit to set
question, we review de novo a trial court’s ruling on a           aside deed obtained by fraud). “Without breach of a legal
plea to the jurisdiction. Mayhew v. Town of Sunnyvale,            right belonging to the plaintiff no cause of action can
964 S.W.2d 922, 928 (Tex.1998). Standing is a                     accrue to his benefit.” Id.
component of a court’s subject-matter jurisdiction. Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
446 (Tex.1993). The plaintiff has the burden of alleging
facts that affirmatively demonstrate a court’s jurisdiction       B. Legal Principles: Whose Primary Legal Right Was
to hear a cause. Id. A plea to the jurisdiction challenges a      Allegedly Infringed?
trial court’s authority to hear a case by alleging that the       Plaintiffs’ principle argument is that the issue raised
factual allegations *249 in the plaintiff’s pleadings, when       concerns who owns the claims, and thus presents a
taken as true, fail to invoke the trial court’s jurisdiction.     question of capacity, not standing. They rely on Pledger
El Paso Cmty. Partners v. B & G/Sunrise Joint Venture,            v. Schoellkopf, 762 S.W.2d 145, 146 (Tex.1988) (a
24 S.W.3d 620, 623 (Tex.App.-Austin 2000, no pet.)                challenge to a shareholder’s right to bring a cause of
(citing Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429,           action for wrongs done to the corporation raises a
331 S.W.2d 910, 917 (1960)). We construe the allegations          question of capacity). They also rely on Prostok v.
in the pleadings in favor of the pleader. Tex. Air Control        Browning, 112 S.W.3d 876, 921 (Tex.App.-Dallas 2003)
Bd., 852 S.W.2d at 446.                                           (“A challenge to who owns a claim raises the issue of
                                                                  capacity, not standing.”), aff’d, 165 S.W.3d 336
[6] [7]
          When a plaintiff fails to plead facts that establish    (Tex.2005). We disagree that the pleadings raise only an
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Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



issue of capacity, not standing. The case law reveals that,   bring about reduced earnings, lower salaries, bonuses,
with respect to Plaintiffs’ individual common-law causes      injury to general business reputation, or diminution in the
of action, a fundamental question is raised: Do these         value of ownership.” Id. at 881 (quoting Martens v.
claims embody a primary legal right belonging to the          Barrett, 245 F.2d 844, 846 (5th Cir.1957)).
Plaintiffs or does the Willow partnership have the primary
                                                              [14]
right of action? That raises an issue of standing.                A partner has no individual, separate cause of action
                                                              for losses suffered by reason of tortious interference with
We note initially that Pledger cannot stand for the           a contract between the partnership and a third party:
simplistic proposition that a challenge to a stakeholder’s    damages for loss in value of the partnership interest or
bringing a suit to recover personally for corporate wrongs    employment losses are subsumed in the partnership’s
*250 raises an issue of capacity only. The Pledger court      causes of action. Cates v. Int’l Tel. & Tel. Corp., 756 F.2d
did not, indeed could not, discuss standing because that      1161 (5th Cir.1985) (construing Texas law).
issue was not before it. 762 S.W.2d at 145–46. The case
was decided before the determination that standing is an
component of subject-matter jurisdiction and thus can be
raised first on appeal. See Tex. Air Control Bd., 852         C. Application and Conclusion
                                                              [15] [16]
S.W.2d at 446.                                                          Nauslar generally argues that he has standing,
                                                              because he was “personally aggrieved” by, and suffered
[12]
    An individual stakeholder in a legal entity does not      “direct injury” from, Defendants’ actions in disapproving
have a right to recover personally for harms done to the      the Consolidation. He seeks to recover for loss of benefits
legal entity. Wingate v. Hajdik, 795 S.W.2d 717, 719          of ownership and employment. Nauslar Investments
(Tex.1990). In Wingate, one corporate shareholder sued        asserts it has standing to sue, individually, for harms done
another alleging he had appropriated corporate assets. The    to the partnership and seeks damages mirroring those
court ruled that individual stockholders have no separate,    Willow could recover.
independent right of action for injuries suffered by the
corporation, when the injures merely result in                As the case law demonstrates, Plaintiffs do not have a
depreciation of the value of plaintiffs’ stock. Id. at 719.   separate, individual right of action for injuries to the
                                                              partnership that diminished the value of their ownership
In Fredericksburg Indus., Inc. v. Franklin Int’l, Inc., 911   interest in that entity. Wingate, 795 S.W.2d at 719.
S.W.2d 518, 520 (Tex.App.-San Antonio 1995, writ              Willow is the one who suffered the direct injury from the
denied), the president/employee of a furniture                alleged *251 harm to the partnership’s worth, and any
manufacturing corporation sued a corporate supplier,          loss to Plaintiffs in the sale price is “both indirect to and
asserting he lost wages as a result of the supplier’s         duplicative of” the entity’s right of action. Mendenhall,
delivering defective glue. The court held he lacked           504 F.2d at 881. The right of recovery is Willow’s right
standing: the cause of action belonged to the corporation     alone, even though the economic impact of the alleged
alone, as the damages were to the corporation’s profits,      wrongdoing may bring about reduced earnings, salary or
and any claim the plaintiff had for lost wages was against    bonus. Fredericksburg, 911 S.W.2d at 520; Cates, 756
the corporation. Id. at 521.                                  F.2d at 1181; Mendenhall, 504 F.2d at 881.
[13]                                                          We note the applicability of the facts in Cates to the
     Other cases in the corporate context reaffirm that
where damage is to the business entity’s worth, the           instant case. 756 F.2d 1161. The Cates plaintiff, a
individual stakeholder cannot personally recover, whether     minority partner, attempted to bring individual claims for
the damages sought are in terms of diminished value of an     tortious interference with the partnership’s business, as do
ownership interest or loss of employee benefits. In           the Plaintiffs here. The damages sought were similar as
Mendenhall v. Fleming Co., Inc., 504 F.2d 879 (5th            well. The court’s holding warrants quotation:
Cir.1974), the plaintiffs sought to recover personally for
damages from anti-trust violations arising from the                        Accordingly, any claims for
operation of retail stores by a corporation, which they had                damages which [plaintiff] suffered
created. Id. at 880. The court noted that the business                     by reason of diminution in value of
allegedly interfered with was that operated by the                         his partnership interest, or his share
corporation and the damages sought were direct damage                      of partnership income, or his salary
to corporate worth. Thus, the plaintiffs lacked standing.                  or bonus from the partnerships or
Id. at 880–81. The right of recovery was the entity’s right                their businesses, by reason of
alone, even though in an economic sense the impact “may                    breach of such agreements, or
                                                                           tortious interference with such
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Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



               businesses, or anticompetitive                  to purchase with Payne turned on whether the third-party
               conduct interfering with or limiting            contract was properly exercised. Id. at 523–34.
               or “taking over” such businesses or
               their activities, are in effect                 *252 Abraham is inapposite, as the analogy fails at the
               subsumed within the causes of                   outset. The plaintiff had a direct contract with the
               action of the partnerships and do               defendant. Disposition under that contract turned on
               not afford [plaintiff] ... a separate,          whether the third-party contract was properly exercised.
               individual cause of action.                     In today’s case, there is no direct contract between
                                                               Plaintiffs and Defendants Coors and Golden.
Id. at 1181.                                                   Accordingly, Plaintiffs lack standing to pursue their
                                                               tortious-interference cause of action against Defendants.

Accordingly, Willow possesses the primary legal right          Nauslar Investments asserts standing in its roles as former
that was allegedly violated, and thus Willow is the            general partner of Willow’s general partner and former
exclusive party with a justiciable interest in redressing      limited partner of Willow. To overcome the obstacle that
those alleged injuries. Accordingly, Plaintiffs do not have    it is not a general partner of Willow, it relies on the
a standing to pursue and recover personally on the             double derivative rule governing corporate derivative
asserted common-law causes of action.                          suits. To overcome the general rule that a partner cannot
                                                               sue individually on a partnership claim, it relies on cases
Plaintiffs’ arguments to the contrary do not alter our         applying an exception to that rule. Those cases do not
conclusion. Concerning the tortious-interference cause of      apply because, as discussed below, Nauslar Investments
action, Nauslar argues that he has individual standing to      sold to Miller the entirety of its interest in Willow. 2 None
pursue the claim under Sturges v. Wal–Mart Stores, Inc.,       of the cases it cites stands for the proposition that a
39 S.W.3d 608 (Tex.App.-Beaumont 1998), rev’d on               partner that has sold its entire interest in the partnership
other grounds, 52 S.W.3d 711 (Tex.2001). In that case,         can personally recover on a claim belonging to that
individuals were deemed to have standing where a               partnership. The Mendenhall court, discussing the sale of
proposed business entity was never formed due to the           corporate stock, captured the effect of the Plaintiffs’ sale
defendant’s interference. The appellate court held that the    of the partnership:
individual plaintiffs, who had signed the letter of intent,
were all “interested parties who would have profited from
the prospective lease,” who were directly involved in the        When [plaintiffs] sold their corporate stock to a third
building of the proposed structure, and who sustained            party, they sold their right to control the very cause of
“direct economic injury” as a result of Wal–Mart’s               action they now attempt to assert. This suit cannot
interference. Id. at 614–15.                                     reclaim that corporate cause of action by asserting the
                                                                 same damage sustained by the corporation also served
Sturges is inapposite. The proposed entity in Sturges was        to diminish the value of their individually held estates.
never formed, leaving the principals in that enterprise as       Mendenhall, 504 F.2d at 881.
the directly injured parties. In today’s case, the direct
injury from Defendants’ alleged wrongdoing was to
Willow, the operating business entity that would have          II. Plaintiffs’ Statutory Causes of Action Asserted in
consolidated with Miller.                                      Their Right
                                                               Plaintiffs assert that Coors unreasonably disapproved the
Plaintiffs also rely on Abraham Inv. Co. v. Payne Ranch,       Consolidation in violation of the Texas Beer Industry Fair
Inc., 968 S.W.2d 518 (Tex.App.-Amarillo 1998, pet.             Dealing Law (BIFDL), which prohibits manufacturers
denied) to overcome the obstacle that they were not party      from withholding approval of the transfer of
to the proposed consolidation agreement between Willow         distributorship rights if the substituting party meets
and Miller. In that case, plaintiff Abraham had a contract     “reasonable standards.” TEX. ALCO. BEV.CODE ANN..
to purchase a ranch from defendant Payne. That contract        § 102.71, -.76, -.77, -.79 (Vernon 1995). We examine
was subject to a pre-existing preferential right of purchase   whether Plaintiffs have standing, in their own right, to
contained in a contract between Payne and Campbell,            bring a claim for the alleged violation of BIFDL.3
which Campbell exercised to purchase the ranch.
Defendants asserted Abraham lacked standing to sue for
tortious interference, as he was not party to the
Payne–Campbell contract. The court disagreed: whether          A. Legal Principles Governing Standing Based on
Abraham was entitled to fulfillment of the direct contract     Statute
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Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)


[17] [18]
         Standing to sue can be predicated upon either             Corpus Christi Court of Appeals held that the plaintiff did
statutory or common-law authority. See Williams v. Lara,           not have a statutory right to maintain its cause of action
52 S.W.3d 171, 178–79 (Tex.2001). The general rules of             against the distributor, because it failed to comply strictly
standing apply unless statutory authority for standing             with the statute’s requirements. Ace Sales Co., Inc. v.
exists. Id. at 178. If standing is statutorily conferred, the      Cerveceria Modelo, S.A. de C.V., 739 S.W.2d 442, 447
statute granting authority and the case law interpreting it        (Tex.App.-Corpus Christi 1987, writ denied). The
serve as the proper framework of analysis. See Hunt v.             distributor Ace sought damages for the manufacturer’s
Bass, 664 S.W.2d 323, 324 (Tex.1984).                              failure to approve a transfer of the distributorship rights to
                                                                   Ace’s buyer. The court noted that section 102.79 of
[19]   [20]   [21]   [22]   [23]
                        We review matters of statutory             BIFDL provides a remedy for parties to an agreement
construction de novo. City of San Antonio *253 v. City of          under section 102.51, which in turn requires a written
Boerne, 111 S.W.3d 22, 25 (Tex.2003). In construing a              agreement. TEX. ALCO. BEV.CODE ANN.. §§ 102.51,
statute, our objective is to determine and give effect to the      102.79. Because Ace did not produce a written
legislature’s intent. Id. If a statute’s meaning is                agreement, it had no remedy under BIFDL. Id. In so
unambiguous, we generally interpret the statute according          holding, the court relied on the principle that “if a cause
to its plain meaning. Id. We begin by examining the exact          of action and remedy for its enforcement are derived from
wording and apply the tenet that the legislature chooses           a statute, the statutory provisions are mandatory and
its words carefully and means what it says. Williams v.            exclusive, and must be complied with in all respects or
Vought, 68 S.W.3d 102, 115 (Tex.App.-Dallas 2001, no               the action is not maintainable.” Id. (quoting Tex.
pet.) (Morris, J., concurring). We determine legislative           Catastrophe Prop. Ins. Ass’n v. Council of Co–Owners of
intent from the entire act and not just its isolated portions.     Saida II Towers Condo. Ass’n, 706 S.W.2d 644, 646
City of San Antonio, 111 S.W.3d at 25.                             (Tex.1986)).

BIFDL provides a judicial remedy for a “manufacturer”
or “distributor,” as defined in the statute,4 who are parties
to a distributorship agreement:                                    B. Analysis and Conclusion
                                                                   [24]
                                                                        Nauslar argues that although he is not a “distributor”
                                                                   under the BIFDL definition, he should be entitled to sue
   If a manufacturer or distributor who is a party to an           under the statute, based on its text, legislative history, and
   agreement pursuant to Section 102.51 of this code fails         purpose. Nauslar *254 points to the text of Section
   to comply with this Act or otherwise engages in                 102.76(a) that protects not just transfers of the
   conduct prohibited under this Act ... the aggrieved             distributorship itself, but also transfers of “the voting
   manufacturer or distributor may maintain a civil action         stock of any partner corporation,” as well as the
   in a court of competent jurisdiction....                        “beneficial ownership” of entities owning the distributor.
   TEX. ALCO. BEV.CODE ANN.. § 102.79(a).                          He argues that persons representing those interests must
BIFDL prohibits a manufacturer from withholding                    have standing under the statute, to effectuate the broad
approval of a distributor’s transfer of its distributorship        protective purpose of the statute. He also points to pieces
interest when the person or persons to be substituted              of legislative history to indicate that, in discussing the
“meet reasonable standards.” The full provision reads as           pending bill, the legislators did not distinguish between
follows:                                                           the business entity that comprises the distributorship and
                                                                   the individuals who own that entity.
   No manufacturer shall unreasonably withhold or delay
   its approval of any assignment, sale, or transfer of the        We are not persuaded to adopt Plaintiffs’ expansive
   stock of a distributor or all or any portion of a               reading of the text of BIFDL. Rather, we are persuaded by
   distributor’s assets, distributor’s voting stock, the           Appellee’s argument that when the legislature intends to
   voting stock of any parent corporation, or the beneficial       grant a remedy to all persons who might be injured by a
   ownership or control of any other entity owning or              statutory violation, it plainly grants a remedy to “injured
   controlling the distributor, including the distributor’s        persons.” See, e.g., TEX. BUS. & COM.CODE ANN. §
   rights and obligations under the terms of an agreement          19.02 (Vernon 2002) (granting judicial remedy to “a
   whenever the person or persons to be substituted meet           person injured” by a violation of the statute regulating
   reasonable standards. ...                                       relationship between manufacturers and dealers of
                                                                   particular equipment); TEX. OCC.CODE ANN. §
Id. § 102.76(a) (emphasis added).                                  2352.201 (Vernon 2004) (violators of statute are liable to
                                                                   “an injured party ...”).
In a case construing these two sections of BIFDL, the
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Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



We apply the tenet that the legislature chooses its words        release-with-non-assignment clause, which waives the
carefully and means what it says. Williams, 68 S.W.3d at         distributor’s BIFDL claim, should be declared void under
115. The remedies section, Section 102.79(a), plainly            the anti-waiver provision, section 102.72(c).
states who may sue for violations of the statute:
“manufacturers” and “distributors,” as defined under the         We note that the issue Nauslar raises, whether he
statute, who are party to a distributorship agreement.           individually had statutory standing to pursue Willow’s
These plaintiffs do not fall within the statutorily defined      claim, turns on the permissibility of the clause in which
class of persons who may sue. Neither are we persuaded           Willow warrants it did not assign its claims to a third
to read the statute expansively to go beyond its plainly         party. Thus, we need not address whether the release by
stated purpose. The statute states that its purpose is “to       Willow of its own BIFDL claims against Coors was
promote the public’s interest in the fair, efficient, and        prohibited by the anti-waiver provision in section
competitive distribution of beer within the state....” TEX.      102.76(c). The issue is this: Is a distributor’s
ALCO. BEV.CODE ANN.. § 102.72. As noted, Willow                  representation that it has not assigned its statutory claims,
itself has standing to redress violations of the statute. This   if any, to a third party an agreement that “varies the effect
satisfies the statutory purpose of protecting the general        of the BIFDL” so as to be void? As discussed, the plain
public interest in fair competition. We conclude the             language of section 102.79 grants a right of action only to
statutory purpose does not extend to protect Plaintiffs’         “distributors or manufacturers” that are party to a
individual interests in obtaining higher compensation            distributorship agreement. Nauslar points to no authority
from the transfer of its interest in Willow. Tex.                to indicate that BIFDL claims must remain freely
Catastrophe Prop. Ins., 706 S.W.2d at 646 (when cause            assignable to those not otherwise entitled to bring such
of action derives from statute, statutory provisions must        claims in their own right. And we see no language in the
be complied with in all respects or action not                   text of the statute requiring the reading urged by
maintainable).                                                   Plaintiffs.

                                                                 Accordingly, we hold that neither Plaintiff has standing to
                                                                 bring the claims, on their own behalf, seeking redress for
C. Was the No–Assignment Clause Void?                            violations of BIFDL.
[25]
     Nauslar asserts Coors demanded that Willow sign a
mutual release of any claims it had against Coors, which
included Willow’s warranty that it had not assigned any
of its claims to a third party. Nauslar asserts that, but for    III. Plaintiffs’ Causes of Action Asserted “On Behalf
Coors’s insistence that he execute the release by Willow,        Of” Willow
he would have assigned Willow’s claims to himself. The           We turn to Plaintiffs’ assertion of causes of action
release, Nauslar asserts, violated the “anti-waiver”             purportedly brought “on behalf of” Willow. Plaintiffs
provision of BIFDL. He argues Coors should not be                assert—as the former partners in and owners of
allowed to circumvent the section prohibiting                    Willow—they are entitled to recover personally on
unreasonable disapproval of a transfer by violating the          Willow’s claims for injuries suffered by Willow.
section prohibiting the release of such claims. As a             Plaintiffs argue Defendants’ challenges go to the issue of
remedy, Nauslar invokes equity principles, urging the            “claim ownership” only. They assert, “An argument about
court to declare an “equitable assignment” of Willow’s           whether a current or former owner, as distinct from his
claims to Nauslar, thus enabling him to sue—as                   company, owns a particular claim is an argument about
constructive assignee of Willow’s claims—under BIFDL.            capacity.”

Section 102.72(c) of BIFDL states, “The effect of this Act
may not be varied by agreement. Any agreement
purporting to do so is void and unenforceable to the extent      A. Legal Principles
                                                                 [26] [27]
of such variance only.” Nauslar asserts that this                          A plaintiff must have both standing and capacity to
“anti-waiver” provision prohibited Coors from                    bring a lawsuit. Coastal Liquids Transp. L.P. v. Harris
conditioning its approval of the sale of Willow on               County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001).
Willow’s *255 release of its claims against Coors.               A party has capacity to sue when it has legal authority to
Nauslar insists the only permitted reason for disapproving       act, regardless of whether it has a justiciable interest in
a transfer under section 102.76 is when the proposed             the controversy. Nootsie, Ltd., 925 S.W.2d at 661.
transferee fails to meet “reasonable standards.” Coors is        Standing pertains to a person’s justiciable interest in a suit
thus not permitted to disapprove a transfer based on a           and is a component of subject-matter jurisdiction. See
failure to sign a release. Thus Nauslar argues, the              Tex. Air Control Bd., 852 S.W.2d at 443, 445–46.
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Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



Capacity is a party’s legal authority to go into court to            to bring Willow’s partnership claims. Thus, the suit
prosecute or defend a suit. El T. Mexican Rests., Inc. v.            cannot proceed on those causes of action. We decline to
Bacon, 921 S.W.2d 247, 249 (Tex.App.-Houston [1st                    remand for the trial court to engage in a futile inquiry.
Dist.] 1995, writ denied).                                           Wilson *257 v. Texas Parks and Wildlife Dept., 8 S.W.3d
                                                                     634, 635 (Tex.1999) (declining to remand for retrial of
                                                                     issue on which no evidence was offered; such “would be
                                                                     improper and, it appears, futile”); Sabine Offshore Serv.,
B. Analysis and Conclusion                                           Inc. v. City of Port Arthur, 595 S.W.2d 840, 841
[28] [29]
          Plaintiffs allege, and it is undisputed, that Plaintiffs   (Tex.1979) (declining to remand when futile and not in
sold their interest in the Willow partnership to Miller.             furtherance of judicial economy). We conclude the claims
Willow’s causes of action belong to the partnership, not to          asserted “on behalf of” Willow were properly dismissed.
its partners. Absent an agreement otherwise, Willow’s                Accordingly, we need not reach the issue whether
assets, including any chose in action it held, would have            Plaintiffs also lacked standing to pursue Willow’s claims.
transferred to Miller in the sale.5                                  In addition, we need not reach other unrelated issues
                                                                     raised by Plaintiff.
*256 [30] Plaintiffs do not allege that they consensually
acquired legal title to Willow’s causes of action—and
thus possess exclusive authority (capacity) to prosecute
and recover on Willow’s claims. That is, they do not                 IV. Attorney Fees under BIFDL
allege that, despite the sale to Miller, they retained title to      Coors asserts, on cross-appeal, that the trial court erred in
Willow’s causes of action, or otherwise acquired those               denying Coors attorney fees under BIFDL. Coors argues
assets by assignment. Indeed, Plaintiffs allege and argue            it prevailed on the BIFDL claims and an award of
the opposite: they allege that Coors conditioned its                 attorney’s fees is mandatory to the prevailing party in an
approval of the sale on Willow’s warranting it had not               action brought under BIFDL.
assigned its claims against Coors to a third party. Nauslar
argues, but for that condition, he would have caused                 Section 102.79(c) of BIFDL states,
Willow to assign its claims to himself.6
                                                                                  The prevailing party to any action
Plaintiffs thus judicially admit they have do not own legal                       under Subsection (a) of this section
title to Willow’s causes of action. Houston First                                 shall be entitled to actual damages,
American Sav. v. Musick, 650 S.W.2d 764, 767                                      including the value of the
(Tex.1983) (judicial admissions are assertions of fact, not                       distributor’s business, as specified
pled in the alternative, in the live pleadings of a party).                       in Section 102.77 of this code,
Plaintiffs do posit the “constructive assignee” theory by                         reasonable attorney’s fees, and
which to establish their alleged right to bring Willow’s                          court costs.
causes of action. As a legal basis, they argue the warranty
of no assignment violates BIFDL and thus should be                   TEX. ALCO. BEV.CODE ANN.. § 102.79(c) (emphasis
declared void. We concluded above, as a matter of law,               added). Subsection (a) provides for a right of action for a
that the non-assignment clause does not violate BIFDL.               “manufacturer or distributor” who is party to a
Plaintiffs allege no other legal basis to avoid the effect of        distributorship agreement. If the defending manufacturer
their having failed to acquire the legal right to prosecute          or distributor fails to comply with the statute, “the
and personally recover on Willow’s causes of action.                 aggrieved manufacturer or distributor may maintain a
[31] [32]
                                                                     civil action in a court of competent jurisdiction....” Id. §
         To bring suit and recover on a cause of action, a           102.79(a) (emphasis added).
plaintiff must have both standing and capacity. El T.
Mexican Rests., 921 S.W.2d at 250. It is recognized that a           Plaintiff’s respond that, if they do not have standing under
party may plead himself out of court, e.g., the plaintiff            the statute, then the trial court lacks jurisdiction to award
may plead facts which affirmatively negate his cause of              attorney’s fees, relying on Smith v. Tex. Improvement Co.,
action. Tex. Dept. of Corrections v. Herring, 513 S.W.2d             570 S.W.2d 90, 92 n. 3 (Tex.App.-Dallas 1978, no writ)
6, 10 (Tex.1974) (citing Schroeder v. Tex. & Pacific Ry.             (when court lacks jurisdiction, court cannot render
Co., 243 S.W.2d 261 (Tex.Civ.App.-Dallas 1951, no                    judgment j.n.o.v.; only valid order is one of dismissal).
writ)). Plaintiffs affirmatively negate that they own legal
title to Willow’s claims, asserting instead a legal theory to        [33] [34]
                                                                            We have concluded that Plaintiffs lack standing to
overcome that fact, which we have rejected.7 We conclude             bring the BIFDL claims, either in their own right or “on
that, on the state of the pleadings, Plaintiffs lack capacity
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Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



behalf of” Willow. Coors thus qualifies as a “prevailing                     County Comm’rs Court v. Lohec, 814 S.W.2d 751, 755
party” within the meaning of section 102.79(c). Robbins                      (Tex.App.-Houston [ (14th Dist.) ] 1991), rev’d on other
v. Capozzi, 100 S.W.3d 18, 27 (Tex.App.-Tyler 2002, no                       grounds, 841 S.W.2d 361 (Tex.1992) (under
pet.) (“prevailing party” successfully prosecutes or                         declaratory-judgment statute, trial court could award
defends against an action; prevailing party is one who is                    attorneys’ fees against party found to have no standing).
vindicated). The BIFDL claims were brought under                             Further, the statute is worded such that a manufacturer or
subsection (a) as section 102.79(c) requires. Further the                    distributor may maintain an action and the prevailing
fee award is mandatory, in that subsection (c) explicitly                    party in that *258 action shall recover reasonable attorney
states the prevailing party “shall” recover reasonable                       fees. Thus, the statutory text mandates the award of fees
attorney’s fees. See Town East Ford Sales, Inc. v. Gray,                     even if the action cannot be maintained, whether or not it
730 S.W.2d 796, 812 (Tex.App.-Dallas 1987, no writ)                          is dismissed for lack of jurisdiction. Accordingly, we
(fees mandatory under statutory provision stating                            reverse the trial court’s order denying Coors attorney’s
“consumer who prevails shall be awarded court costs and                      fees and remand that issue for further proceedings.
reasonable and necessary attorney’s fees”).
                                                                             Accordingly, we AFFIRM the trial court’s dismissal of
The Plaintiffs’ reliance on the broad statements in Smith                    all of Plaintiffs claims. We REVERSE the trial court’s
is misplaced. That case did not address an issue involving                   order denying Coors attorney’s fees under BIFDL and
a statutory provision mandating an award of fees. A trial                    REMAND that issue for further proceedings.
court’s dismissal for lack of subject-matter jurisdiction
does not prevent the concurrent award of attorney’s fees
under the mandatory award provision. See Galveston

    Footnotes
1        Plaintiffs sued Coors for breach of contract and sued both Coors and Golden for conspiracy to terminate the Consolidation,
         negligence per se, and tortious interference. Nauslar also asserted that he, individually, was a third-party beneficiary to the
         Consolidation agreement. We refer to these causes of action collectively as Plaintiffs’ common-law actions.
2        The facts in the cited cases are not analogous: Allied Chemical Co. v. DeHaven, 824 S.W.2d 257 (Tex. App–Houston [14th Dist.]
         1992,) (exceptional circumstances made it inequitable to prevent resigning partner from bringing suit on behalf of partnership
         during winding-up phase); Tex. Westheimer Corp. v. 5647 Westheimer, 68 S.W.3d 15, 21–22 (Tex.App.-Houston [1st Dist.] 2001,
         pet. denied) (dispute over rights to profit participation owed to partnership by third party; suit instituted during winding-up phase
         of partnership) In today’s case, the partnership was not wound up, but as discussed below, Plaintiffs sold the partnership in its
         entirety.
3        It is undisputed that Willow itself has standing to pursue a BIFDL claim. Willow is not a party to this suit and Plaintiffs disavow
         that they are suing derivatively on any claims that belong to Willow.
4        Under section 102.71, “distributor” is defined as a person licensed under Section 64.01 or 65.01 of the Act, which sections in turn
         define the activities a licensed distributor is authorized to perform. TEX. ALCO. BEV.CODE ANN.. §§ 64.01, 65.01, 102.71.
5        Under the Texas Revised Limited Partnership Act (TRLPA), the partnership, not the partners, own the partnership’s property.
         TEX.REV.CIV. STAT. ANN. art. 6132a–7.01 (Vernon Supp.2004–05). When a business entity is acquired in its entirety by
         another, in the absence of specific terms to the contrary, both the liabilities and assets of the acquired company are transferred to
         the purchaser. Duke Energy Field Servs. Assets, L.L.C. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 68 S.W.3d 848, 850
         (Tex.App.-Texarkana 2002, pet. denied).
6        Plaintiffs plead, in their live pleading:
              [A]s a condition for gaining its approval, and in tacit acknowledgement of its past wrongdoing, Coors extracted a purported
              release from Willow for claims against Coors arising out of its former, illegal conduct.
              ...
              Coors’ release also contained the following provision requiring Nauslar to represent that he had not assigned Willow’s claim
              to any third party ...
              If Coors had not conditioned approval of Nauslar’s sale of Willow and DEN to Miller of Dallas on execution of its release in
              its original form, and had instead agreed to allow assignments, Nauslar would have assigned to himself all rights possessed by
              Willow to sue Coors for the claims alleged in this petition.
7        In addition, at the end of the first hearing, the trial court ordered Plaintiffs to replead with much more specificity so that you make

                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      14
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)



      it clear “who is suing for what, what wrong to whom, when, and causing whatever for what period of damages.... I’m probably
      going to grant [the pleas to jurisdiction] the next go round if you don’t make it clear....” See Harris County v. Sykes, 136 S.W.3d
      635, 639 (Tex.2004) (if plaintiff given opportunity to amend and still fails to allege facts sufficient to withstand plea to jurisdiction,
      court should dismiss action).




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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         15
Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)




                                                                    have suffered the same injury as the assignors
                    331 S.W.3d 27                                   and have the same ability to pursue the claims.
              Court of Appeals of Texas,
                        Waco.
                                                                    2 Cases that cite this headnote
         Robert D. SHIPLEY, Appellant,
                      v.
       UNIFUND CCR PARTNERS, Appellee.
                                                              [3]
No. 10–09–00314–CV. | Oct. 13, 2010. | Rehearing                    Action
           Overruled Dec. 21, 2010.                                   Persons entitled to sue

                                                                    A court may presume the truth of allegations
                                                                    made in a party’s pleadings when determining
Synopsis                                                            standing.
Background: Assignee of right to collect on credit card
account brought action against card holder. The 87th
District Court, Freestone County, Patrick H. Simmons, J.,           Cases that cite this headnote
entered judgment against card holder. Card holder
appealed.

                                                              [4]
                                                                    Pleading
[Holding:] The Court of Appeals, Tom Gray, C.J., held                 Scope of inquiry and matters considered in
that assignee did not have standing to bring action against         general
card holder.
                                                                    A court is not required to look solely to the
                                                                    pleadings but may consider evidence and must
Reversed.                                                           do so when necessary to resolve the
                                                                    jurisdictional issues raised.


                                                                    Cases that cite this headnote
 West Headnotes (6)


[1]
        Assignments
          Nature and essentials in general                    [5]
                                                                    Consumer Credit
                                                                      Actions;  injunction
        An assignment is simply a transfer of some right
        or interest.                                                Assignee of right to collect on credit card
                                                                    account did not have ownership or title in the
                                                                    account, and therefore, did not have standing to
        2 Cases that cite this headnote                             bring action against card holder; assignee only
                                                                    had been assigned right to collect, and assignor
                                                                    explicitly retained title and ownership.

[2]
        Assignments                                                 Cases that cite this headnote
          Nature and extent of rights of assignee in
        general

        When an assignee holds a contractually valid
                                                              [6]
        assignment, that assignee steps into the shoes of           Action
        the assignor and is considered under the law to               Persons entitled to sue
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                 1
Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)



                                                              presented, we will reverse the judgment, dismiss this
        Because standing denotes a party’s justiciable        cause for lack of jurisdiction, and withdraw our prior
        interest in a controversy, it is only the party       opinion and judgment. Id.
        whose primary legal right has been breached
        that may seek redress for that injury; without a
        breach of a legal right belonging to that party,
        that party has no standing to litigate.               Standing
                                                              Shipley contends that Unifund CCR Partners did not own
                                                              any interest in the account in question, and therefore, they
        Cases that cite this headnote                         lacked standing to bring the suit against him. Citibank
                                                              South Dakota, N.A. sold the account to Unifund Portfolio
                                                              A., LLC. Unifund Portfolio A, LLC then assigned its
                                                              rights to collect the account to Unifund CCR Partners, but
                                                              retained the title and ownership of the account. In his
                                                              brief to this Court, Shipley does not complain about the
Attorneys and Law Firms                                       sale of the account from Citibank to Unifund Portfolio A,
                                                              but of the assignment from Unifund Portfolio A to
*27 Richard C. Jenkins, Dallas, for Appellant.
                                                              Unifund CCR Partners.
Abel Reyna, Jr., McCleskey Harriger & Brazill & Graf
LLP, Lubbock, for Appellee.                                   Standing, a necessary component of subject-matter
                                                              jurisdiction, is a constitutional prerequisite to maintaining
Before Chief Justice GRAY, Justice REYNA, and Justice         a suit under Texas law. Tex. Ass’n of Bus. v. Tex. Air
DAVIS.                                                        Control Bd., 852 S.W.2d 440, 444–45 (Tex.1993).
                                                              Whether a party has standing to pursue a claim is a
                                                              question of law that we review de novo. Mayhew v. Town
                                                              of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

                                                              Standing refers to a party’s justiciable interest in a
           *28 OPINION ON REHEARING                           controversy. See Nootsie, Ltd. v. Williamson County
                                                              Appraisal Dist., 925 S.W.2d 659, 661–62 (Tex.1996);
                                                              Town of Fairview v. Lawler, 252 S.W.3d 853, 855
TOM GRAY, Chief Justice.                                      (Tex.App.-Dallas 2008, no pet.). Only the party whose
                                                              primary legal right has been breached may seek redress
Robert Shipley appeals from the entry of a judgment
                                                              for an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d
against him for a debt on a credit card account. Shipley
                                                              242, 249 (Tex.App.-Dallas 2005, no pet.). Without a
complains that the trial court erred by not dismissing the
                                                              breach of a legal right belonging to that party, that party
suit against him because Unifund CCR Partners lacked
standing to bring the suit because the court lacked subject   has no standing to litigate. Cadle Co. v. Lobingier, 50
matter jurisdiction in that Unifund CCR Partners did not      S.W.3d 662, 669–70 (Tex.App.-Fort Worth 2001, pet.
                                                              denied). In reviewing standing on appeal, we construe the
own the debt and therefore did not have standing to bring
                                                              petition in favor of the plaintiff, and if necessary, review
the action. Shipley also complains that the evidence was
                                                              the entire record to determine if any evidence supports
legally insufficient for the trial court to have granted a
                                                              standing. See Tex. Air Control, 852 S.W.2d at 446.
judgment against him and in favor of Unifund CCR
Partners because there was no evidence that Shipley’s         [1] [2]
                                                                    An “assignment” is simply a transfer of some right
debt had been assigned to Unifund CCR Partners.
                                                              or interest. See Pagosa Oil & Gas, L.L.C. v. Marrs &
                                                              Smith P’ship, 323 S.W.3d 203, 211 (Tex.App.-El Paso
On original submission, this Court affirmed the judgment.
                                                              2010, no pet. h.) (citing University of Texas Med. Branch
See Shipley v. Unifund CCR Partners, No.
                                                              at Galveston v. Allan, 777 S.W.2d 450, 452
10–09–00314–CV, 2010 Tex.App. LEXIS 4544
(Tex.App.-Waco June 16, 2010). Upon Shipley’s timely          (Tex.App.-Houston [14th Dist.] 1989, no writ)). When an
                                                              assignee holds a contractually valid assignment, that
motion for rehearing, we requested a response from
                                                              assignee steps into the shoes of the assignor and is
Unifund CCR Partners, although Unifund has not done so.
                                                              considered *29 under the law to have suffered the same
As authorized by Rule of Appellate Procedure 49.3, we
                                                              injury as the assignors and have the same ability to pursue
issue this modified opinion after requesting the response.
TEX.R.APP. P. 49.3. On reconsideration of the issues          the claims. Southwestern Bell Tel. Co. v. Mktg. on Hold
                                                              Inc., 308 S.W.3d 909 (Tex.2010) (citing Holy Cross
               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)



Church of God in Christ v. Wolf, 44 S.W.3d 562, 572                             (including, without limitation,
(Tex.2001)).                                                                    warranties pertaining to title,
                                                                                validity,    collectibility    (sic),
                                                                                accuracy    or     sufficiency    of
                                                                                information, and applicability of
Pleadings and Evidence in the Record                                            any statute of limitations), except
[3] [4]
        “It has long been the rule that a plaintiff’s good faith                as stated in the Agreement or
allegations are used to determine the trial court’s                             herein. (emphasis added)
jurisdiction.” Eaves v. Unifund CCR Partners, 301
S.W.3d 402, 404 (Tex.App.-El Paso 2009, no pet.) (citing           [6]
                                                                      Because standing denotes a party’s justiciable interest
Brannon v. Pac. Employers Ins. Co., 148 Tex. 289, 224              in a controversy, it is only the party whose primary legal
S.W.2d 466, 469 (Tex.1949)). A court may presume the               right has been breached that may seek redress for that
truth of allegations made in a party’s pleadings when              injury. Eaves, 301 S.W.3d at 404. Without a breach of a
determining standing. Id. (citing Tex. Ass’n of Bus., 852          legal right belonging to that party, that party has no
S.W.2d at 446; Brown v. Todd, 53 S.W.3d 297, 305 n. 3              standing to litigate. Id. (citing Cadle Co. v. Lobingier, 50
(Tex.2001) (“Because standing is a component of subject            S.W.3d 662, 669–70 (Tex.App.-Fort Worth 2001, pet.
matter jurisdiction, we consider [it] as we would a plea to        denied)). Unifund CCR Partners’s right is solely limited
the jurisdiction, construing the pleadings in favor of the         to taking whatever steps are necessary to collect a debt
plaintiff.”)). “A court is not required to look solely to the      owned entirely by someone else, while holding no title,
pleadings but may consider evidence and must do so                 interest, or rights in anything else. We do not find that this
when necessary to resolve the jurisdictional issues                is sufficient to establish that Unifund CCR Partners has
raised.” State Dep’t of Crim. Justice v. Miller, 51 S.W.3d         standing to pursue this claim in its own name.
583, 587 (Tex.2001). However, the petition’s sole
reference to Unifund CCR Partners’s ownership or                   Cases that have found standing to exist all indicate that a
standing to litigate is the statement that “Plaintiff is           finding of ownership of some type was made. Even the
authorized to file this petition.” We do not find that this        cases *30 cited to by Unifund CCR Partners demonstrate
constitutes any evidence of standing.                              that some ownership interest was transferred by the
[5]                                                                assignor to the assignee. See Sprint Communications Co.,
   The case was solely decided based on business records           L.P. v. APCC Services, Inc., 554 U.S. 269, 128 S.Ct.
filed by Unifund CCR Partners. The evidence presented              2531, 2541–43, 171 L.Ed.2d 424 (2008) (assignee with
in the business records affidavit is likewise unclear as to        legal title to debt of a legal claim for money owed has
what interest beyond the right of collection that Unifund          standing to pursue the claim even if proceeds are to be
CCR Partners owns. Additionally, the trial court sustained         entirely remitted to assignor); see also Eaves, 301 S.W.3d
Shipley’s hearsay objections to the affidavit and struck           at 403–04 (pleadings and live testimony sufficiently
the content of the affidavit outside of the questions              demonstrated that Unifund owned the account in question
required to authenticate the business record as such. In           to establish standing); Cartwright v. MBank Corpus
fact, the assignment from Unifund Portfolio A, LLC to              Christi, N.A., 865 S.W.2d 546, 549–50 (Tex.App.-Corpus
Unifund CCR Partners indicates that Unifund CCR                    Christi 1993, writ denied) (note transferred to MBank
Partners owns nothing. The pertinent language of the               making MBank the holder of the note); Schultz v. Aetna
assignment states:                                                 Business Credit, Inc., 540 S.W.2d 530, 531
                                                                   (Tex.Civ.App.-San Antonio 1976, no writ) (assignor
             Assignor, for value received and in                   transferred “all of its rights, title and interests” in the
             connection with the Agreement,                        relevant instrument, any accompanying promissory note
             transfers and assigns to Assignee                     or notes, and all rights and remedies under said instrument
             all of Assignor’s rights in the                       or notes); Kelley v. Bluff Creek Oil Co., 298 S.W.2d 263,
             Receivables,      for     collection                  267 (Tex.Civ.App.-Fort Worth 1956) (assignment
             purposes        only,     including                   transferred all “right, title and interest” in a claim, “with
             conducting litigation in Assignee’s                   full power and authority to collect and receipt therefore”),
             name, for those Receivables which                     aff’d in part, and rev’d in part on other grounds, 158 Tex.
             Assignor owns or may acquire                          180, 309 S.W.2d 208 (1958).
             from time to time. Assignor shall
             retain title and ownership of such                    We find that without evidence of any ownership interest
             Receivables. The assignment is                        or title in the account that Unifund CCR Partners does not
             without recourse to Assignor and                      have standing to bring this suit and that the trial court did
             without warranty of any kind
                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)



not have subject matter jurisdiction over the action. We         standing to file suit against Shipley. Therefore, because
sustain issue one.                                               the trial court lacked subject matter jurisdiction, we
                                                                 reverse the judgment of the trial court and render
                                                                 judgment dismissing the case.

Conclusion
We conclude that Unifund CCR Partners did not have
 End of Document                                           © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          4
