                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                '
 GARY DAKIL                                                    No. 08-11-00156-CV
 D/B/A 3 N 1 WATER SOLUTIONS,                   '
                                                                    Appeal from
                        Appellant,              '
                                                               County Court at Law
 v.                                             '
                                                              of Hood County, Texas
                                                '
 LELAND LEGE,
                                                '                 (TC # C05382)
                        Appellee.


                                         OPINION

       Gary Dakil d/b/a 3 N 1 Water Solutions appeals a money judgment of $8,680 for breach

of an oral contract to pay Leland Lege for certain construction work already performed. For the

reasons that follow, we affirm.

                                     FACTUAL SUMMARY

       Lege filed suit on an oral debt in Hood County, Texas alleging that Dakil “hired [Lege]

(doing business as 2-L Contractors) to perform dirt work on real property located in Palo Pinto,

Texas.” Lege claimed Dakil owed a total of $15,940 for work performed. Dakil filed a general

denial and a counterclaim in which he sued 2-L Contractors, Inc. and Leland Lege d/b/a 2-L

Contractors, alleging he entered into an oral contract with Lege and/or 2-L Contractors, Inc. The

record is silent as to whether 2-L Contractors is a separate entity from Lege. The only evidence

that 2-L Contractors exists appears on the letterhead of the invoices Lege sent to Dakil.

Appellant filed a post-trial request for additional findings of fact and conclusions of law asking

the court to find: (1) 2-L Contractors, Inc., rather than Leland Lege in his individual capacity,

was the proper party to assert a claim; and (2) Lege lacked standing to bring the suit. These
issues were brought to the attention of the trial court for the first time in his request for additional

finding of facts and conclusions of law.

                                   STANDING and CAPACITY

        In Issue One, Dakil argues that because Lege lacked standing to bring the original suit,

the trial court lacked subject matter jurisdiction. In reviewing standing on appeal, we construe

the petition in favor of the petitioner and, if necessary, review the entire record to determine if

any evidence supports standing. Smith v. CDI Rental Equipment, Inc., 310 S.W.3d 559, 566

(Tex.App.--Tyler 2010, no pet.). We review de novo a party’s challenge to standing, as well as a

challenge to the trial court’s conclusions of law. Id., citing Tex. Dep’t of Transp. v. City of

Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004).

        A plaintiff must have both standing and capacity to bring suit. Austin Nursing Ctr., Inc.

v. Lovato, 171 S.W.3d 845, 847 (Tex. 2005). Standing focuses on whether a party has a

sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome, whereas

capacity is a procedural issue addressing the personal qualifications of a party to litigate. Id.

(internal quotations omitted).     The Texas Supreme Court has distinguished between these

requirements as follows:

        A plaintiff has standing when it is personally aggrieved, regardless of whether it is
        acting with legal authority; a party has capacity when it has the legal authority to
        act, regardless of whether it has a justiciable interest in the controversy.

Id., quoting Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.

1996). A party may raise standing for the first time on appeal, because standing implicates

subject matter jurisdiction. Nootsie, Ltd., 925 S.W.2d at 662. Capacity, on the other hand, can

be waived. Id. (holding party must comply with Texas Rule of Civil Procedure 93 and raise

capacity complaint in a verified pleading).



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        Dakil claims that Lege was not a proper party to the file a breach of contract action

because he brought the original suit based on invoices from 2-L Contractors Inc. but he had not

file an assumed-name certificate. These complaints relate to capacity rather than standing. See

Prostok v. Browning, 112 S.W.3d 876, 921 (Tex.App.--Dallas 2003), rev’d in part on other

grounds, 165 S.W.3d 336 (Tex. 2005)(“A challenge to who owns a claim raises the issue of

capacity, not standing.”); and Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 55 (Tex.

2003)(“[F]ailure to file an assumed name certificate does not render a plaintiff’s claim void . . . it

affects plaintiff’s capacity to bring suit.”).

        Texas Rule of Civil Procedure 93 requires a party to file a verified pleading if it contends

that the plaintiff lacks capacity to sue unless the truth of such matter appears of record.

Tex.R.Civ.P. 93(2). “A party who fails to raise the issue of capacity through a verified plea

waives that issue at trial and on appeal.” Nine Greenway Ltd. v. Heard, Googan, Blair &

Williams, 875 S.W.2d 784, 787 (Tex.App.--Houston [1st Dist.] 1994, writ denied).

        Because Dakil failed to verify his pleadings and brought these issues to the attention of

the trial court for the first time in his request for additional findings of fact and conclusions of

law, he has failed to preserve error.            Nor can it be said that the lack of capacity is

readily apparent on the face of the record. The clerk’s record clearly demonstrates Leland Lege

d/b/a 2-L Contractors was the only plaintiff. See Matice Enters., Inc. v. Gibson, 2005 WL

1838018, *5 (“adding ‘d/b/a’ to a name does not constitute the creation of a separate legal

capacity; rather it is a term of identification”). For these reasons, we overrule Issue One.

                                     FACTUAL SUFFICIENCY

        In Issue Two, Dakil challenges the factual sufficiency of the evidence supporting the

amount of damages. In reviewing a point of error asserting that a finding is against the great



                                                    3
weight and preponderance of the evidence, we must consider all of the evidence, both the

evidence which tends to prove the existence of a vital fact as well as evidence which tends to

disprove its existence. The fact finder shall determine the weight to be given to the testimony

and to resolve any conflicts in the evidence. Carrasco v. Goatcher, 623 S.W.2d 769, 772

(Tex.App.--El Paso 1981, no writ). These findings should be sustained if there is some probative

evidence to support it and provided it is not against the great weight and preponderance of the

evidence. Id. Findings of fact in a bench trial have the same force and dignity as a jury's verdict

upon questions and are reviewed for legal and factual sufficiency of the evidence by the same

standards. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Anderson v. City of Seven Points,

806 S.W.2d 791, 794 (Tex.1991). Thus, we cannot substitute our judgment for that of the fact

finder provided the finding is supported by probative evidence and is not against the great weight

and preponderance of the evidence.

       The universal rule for measuring damages for breach of a contract is just compensation

for the loss or damage actually sustained. Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d

741, 760 (Tex.App.--El Paso 2000, no pet.). A non-breaching party is generally entitled to all

actual damages necessary to put it in the same economic position in which it would have been

had the contract not been breached. Id.

       Here, the trial court found: (1) the parties had an agreement where Lege would perform

construction work and Dakil would pay him $31,680; (2) Lege performed that work; and (3)

Dakil paid only $23,000 and refused to pay the remaining $8,680 as required under the

agreement.   While Dakil presented conflicting evidence, he does not demonstrate that the

evidence supporting the findings is contrary to the overwhelming weight of the evidence. He

merely complains that Lege’s recollection is faulty or that his testimony was not credible. This



                                                4
does not establish that the evidence supporting the trial court’s finding is factually insufficient.

See Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex.App.--Dallas 1997, writ denied)(“[T]he

trial court is the sole judge of the witnesses’ credibility and the weight to be given their

testimony.”).

       We hold, based on our examination of all of the evidence in the record, that Dakil has not

demonstrated that the evidence supporting the trial court’s findings is “so weak or so against the

overwhelming weight of the evidence that the finding is clearly wrong and unjust.” Sanders v.

Total Heat & Air, Inc., 248 S.W.3d 907, 912 (Tex.App.--Dallas 2008, no pet.). We overrule

Issue Two and affirm the trial court’s judgment.


October 24, 2012                      _______________________________________________
                                      ANN CRAWFORD McCLURE, Chief Justice


Before McClure, C.J., Rivera, and Antcliff, JJ.




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