Opinion issued December 20, 2012




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                            NO. 01-12-00173-CV
                          ———————————
                        AMADO YANEZ, Appellant
                                      V.
                      DANIELA DUCASSON, Appellee



                   On Appeal from the 281st District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-80317



                        MEMORANDUM OPINION

      Amado Yanez appeals the trial court judgment based on the jury’s

determination that he breached a contract with Daniela Ducasson. In two issues,

Yanez argues the evidence was legally insufficient to establish that (1) the
agreement was supported by consideration and (2) the contract was entered with

Yanez in his individual capacity.

      We affirm.

                                    Background

      Yanez owned a number of businesses involved in the oil and gas field. He

formed OSA International, LLC some time in late 2008. Yanez was originally

named the sole member of OSA, but in November 2008, Mindy Kay was named

the sole member. OSA’s main asset was a contract for what was known as the

Williams project. Ducasson did work on the Williams project among other work

for Yanez. She was paid through OSA on a monthly basis as an independent

contractor.

      Problems arose on the Williams project, and in early 2009 the other party—

identified only as Williams—stopped payments under the contract. Yanez needed

the money owed under the Williams project to pay other liabilities for other

businesses. Ducasson, along with Kay, compiled a list of parties owed money by

Yanez’s companies. Ducasson and Kay included themselves on the list, showing

$160,000 to be paid to each of them. Yanez agreed to pay Ducasson and Kay

those amounts as a bonus upon the resolution of the dispute in the Williams project

and the payment of the money owed.




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      Ducasson spent a significant amount of time resolving the dispute in the

Williams project.   The dispute was ultimately settled, and Williams paid the

agreed-upon amount. Ducasson subsequently submitted an invoice to OSA for the

$160,000. That amount was never paid.

      Ducasson filed suit against OSA, Yanez, and Kay alleging, among other

claims, breach of contract. The day before trial, the trial court granted summary

judgment in favor of Ducasson and against OSA and Kay on Ducasson’s breach of

contract claim. Ducasson proceeded to trial on her claims against Yanez. The

only claim presented to the jury was the breach of contract claim against Yanez.

The jury found Yanez liable for the $160,000.

                               Standard of Review

      “The final test for legal sufficiency must always be whether the evidence at

trial would enable reasonable and fair-minded people to reach the verdict under

review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “[L]egal-

sufficiency review in the proper light must credit favorable evidence if reasonable

[fact finders] could, and disregard contrary evidence unless reasonable [fact

finders] could not.” Id. “If the evidence . . . would enable reasonable and fair-

minded people to differ in their conclusions, then [fact finders] must be allowed to

do so.” Id. at 822. “A reviewing court cannot substitute its judgment for that of

the trier-of-fact, so long as the evidence falls within this zone of reasonable


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disagreement.” Id. Although the reviewing court must consider evidence in the

light most favorable to the verdict, and indulge every reasonable inference that

would support it, if the evidence allows only one inference, neither fact finder nor

the reviewing court may disregard it. Id.

                                 Personal Liability

      In his second issue, Yanez argues the evidence was legally insufficient to

establish that the contract was entered with Yanez in his individual capacity.

Ducasson argues that Yanez waived this argument by failing to file a verified

denial. We disagree.

      A defendant must file a verified denial when he wants to assert that he “is

not liable in the capacity in which he is sued.” TEX. R. CIV. P. 93(2). The

Supreme Court of Texas has held, however, that this requirement applies to a

defendant’s “standing to assert or defend the action before the Court. It does not

relate to the merits of the cause of action or the merits of the defenses thereto.”

Light v. Wilson, 663 S.W.2d 813, 814 (Tex. 1983).            The defendant can still

challenge whether the plaintiff met her burden “to recover in any capacity alleged.”

Id.; see also Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 421–22

(Tex. App.—Dallas 2012, no pet.) (analyzing Light and holding defendant may

challenge plaintiff’s right to recover despite lack of verified pleading).




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      Yanez argues there is no evidence that Yanez made this promise in his

individual capacity. There is no indication in the record, however, that Yanez

could have made this promise in any other capacity. While Yanez was the original

sole member of OSA, the record establishes that, in November 2008, Kay became

the sole member of OSA. Yanez’s promise to pay Ducasson the $160,000 was

made after this time. There is no evidence in the record that, after November 2008,

Yanez had any legal authority to bind OSA. Nor is there any indication that Yanez

was making the promise in his capacity as an agent for any other company.

Accordingly, the jury could have reasonably inferred that Yanez agreed to pay

Ducasson in his individual capacity.

      Yanez argues in his brief that the promise he made was a promise from OSA

because the money owed belonged to OSA. Yanez does not explain how this is

proof of the capacity in which he made the promise considering, again, that there

was no evidence that Yanez could bind OSA. Moreover, the evidence at trial

established that the money from the settlement of the dispute in the Williams

project did not, in fact, go to OSA. Instead, it went into an account that Yanez had

control over but OSA did not. The evidence also established that the creditors that

the money would be paid to—which included Ducasson—were not only creditors

of OSA, but also creditors of other businesses owned by Yanez. Accordingly, the




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evidence established that the money owed would go to people and to entities other

than OSA, regardless of whether the money was owed only to OSA.

      We overrule Yanez’s second issue.

                              Lack of Consideration

      In his first issue, Yanez argues the evidence was legally insufficient to

establish that the agreement was supported by consideration.1

      As an initial matter, Ducasson argues that this issue is waived because

Yanez failed to file a verified answer. We disagree. A defendant must file a

verified denial when he wants to assert that “a written instrument upon which a

pleading is founded is without consideration.” TEX. R. CIV. P. 93(9) (emphasis

added). Ducasson agrees that the agreement between her and Yanez was an oral

agreement. Accordingly, there is no written instrument upon which her petition

was founded. See id.

      Ducasson also cites to rule 94 of the Texas Rules of Civil Procedure. That

rule identifies the affirmative defenses that must be specifically asserted in an

answer. TEX. R. CIV. P. 94. While the rule identifies “failure of consideration” as

an affirmative defense, it does not include lack of consideration. See id. Failure of

1
      There is some ambiguity in the record about with whom Ducasson had a contract
      to pay her regular salary. We do not need to resolve this ambiguity in this appeal
      because, regardless of with whom Ducasson had a contract to pay her regular
      salary and regardless of whether Yanez could rely on this obligation to show past
      consideration, we determine, infra, that Yanez’s promise to pay Ducasson
      $160,000 was supported by consideration.
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consideration is a legal principle distinct from lack of consideration. See Burges v.

Mosley, 304 S.W.3d 623, 628 (Tex. App.—Tyler 2010, no pet.) (distinguishing

failure of consideration from lack of consideration). Moreover, the presence of

consideration is a fundamental element to establish the existence of a contract. Id.

Accordingly, it is an element of the plaintiff’s burden of proof in a breach of

contract claim, not an affirmative defense or plea in avoidance.2 See id.

      Yanez argues in this issue that any consideration to the agreement to pay

Ducasson $160,000 was past consideration because she was already working on

the Williams project. Yanez correctly argues that past consideration is insufficient

to support a present or subsequent contract. See CRC-Evans Pipeline Int’l, Inc. v.

Myers, 927 S.W.2d 259, 265 (Tex. App.—Houston [1st Dist.] 1996, no writ).

      The evidence shows that, before January 2009, Ducasson did work for OSA

performing administrative functions on the Williams project. That work stopped in

January 2009 when Williams fired OSA. Ducasson testified that, “in January of

2009, that’s when my work began in mitigating the lawsuits, or trying to get paid




2
      “[T]he existence of a written contract presumes consideration for its execution.”
      Blockbuster, Inc. v. C-Span Entm’t, Inc., 276 S.W.3d 482, 488 (Tex. App.—Dallas
      2008, pet. granted). The party alleging the lack of consideration in a written
      contract, then, bears the burden of rebutting the presumption. Id. The contract at
      issue in this case, however, is an oral contract. Accordingly, the presumption of
      consideration does not apply, and the burden of establishing consideration was on
      Ducasson. See Okemah Const., Inc. v. Barkley-Farmer, Inc., 583 S.W.2d 458, 460
      (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ).
                                          7
from Williams.”    The fact finder could reasonably rely on this testimony to

determine that Ducasson had entered into a new agreement to perform new work.

      Nevertheless, Yanez argues that Ducasson had already begun work on

resolving the Williams dispute when any promise to pay the bonus was made.

Accordingly, Yanez argues, the promise to pay the bonus lacked any present

consideration.   We agree that there was conflicting evidence about when the

promise to pay the $160,000 was made. There was, however, some evidence that

the promise to pay the $160,000 was made contemporaneously with Ducasson’s

change of work duties.

      Specifically, Ducasson testified that Yanez made the promise to pay

$160,000 on three separate occasions. She also testified that the first meeting

occurred when the problems with the Williams project began.

      Q.    At what time were you promised to pay $160,000?

      A.    At all three meetings.

      Q.    Who promised you that?

      A.    Mr. Yanez, as long as I was able to resolve the Williams
            dispute.

      “[L]egal-sufficiency review in the proper light must credit favorable

evidence if reasonable [fact finders] could, and disregard contrary evidence unless

reasonable [fact finders] could not.” City of Keller, 168 S.W.3d at 827. We hold

there was sufficient evidence in the record to establish that the promise to pay

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Ducasson $160,000 was made contemporaneously with the agreement to change

her work duties to resolving the Williams dispute.

      We overrule Yanez’s first issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.




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