                                  NO. 07-07-0278-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                               SEPTEMBER 12, 2008
                         ______________________________

                     DOUBLE S PETROLEUM LTD., APPELLANT

                                           V.

                    SUPER CIRCLE 7 STORES, INC., APPELLEE
                      _________________________________

             FROM THE 381ST DISTRICT COURT OF STARR COUNTY;

              NO. DC-04-23; HONORABLE JOSE LUIS GARZA, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Double S Petroleum (Double S), appeals a judgment which awards

Double S $249,952.54 against appellee, Super Circle 7 Food Stores, Inc. (Super Circle 7).

The judgment appealed from also awards appellees, Grissom & Thompson, L.L.P.,

attorney’s fees in the amount of $92,906.86 against appellee, Valero Marketing and Supply

Company (Valero). We dismiss the appeal for want of jurisdiction.
                                        Background


       We will limit our discussion of the factual and procedural background of this appeal

to what is pertinent to our resolution of the jurisdictional issue. Super Circle 7 brought suit

against Valero and Double S. Valero and Double S each asserted counter-claims. These

three parties were ultimately ordered to arbitration. At the conclusion of the arbitration, the

arbitrator awarded $181,161 plus prejudgment interest to Super Circle 7 against Valero.

The arbitrator further awarded $350,090.02 plus prejudgment interest and attorney’s fees

to Double S against Super Circle 7. The arbitrator’s award expressly states that the

contract upon which the award to Super Circle 7 is based did not provide for an award of

attorney’s fees to the prevailing party and, thus, Super Circle 7's claim for attorney’s fees

was denied.1 Following the arbitrator’s award, Double S and Super Circle 7 filed competing

applications to confirm the arbitration award.


       Prior to the hearing on Double S and Super Circle 7's applications to confirm the

arbitration award, Valero filed a separate suit against Double S. In its answer to Valero’s

suit, Double S judicially admitted owing an amount to Valero that was approximately equal

to the judgment Super Circle 7 obtained against Valero in the present suit. In settlement

of this acknowledged debt, Double S assigned Valero $214,000 from the judgment in its

favor in the present suit.




       1
           Grissom & Thompson, L.L.P., were Super Circle 7's attorneys in the underlying
matter.

                                              2
      Prior to the hearing on the competing applications to confirm the arbitrator’s award,

Grissom & Thompson filed a plea in intervention in the suit. Both Double S and Valero

opposed the intervention. Grissom & Thompson admitted its contingency fee contract with

Super Circle 7 into evidence at the hearing.       The trial court ruled that Grissom &

Thompson’s intervention would be allowed.        Soon after this hearing, the trial court

executed its Final Judgment, which awarded Grissom & Thompson $89,821.26 from Super

Circle 7's recovery from Valero. This left Super Circle 7 with a judgment against Valero in

the amount of $123,923.79. The Judgment also confirmed the arbitrator’s $350,090.02

award to Double S against Super Circle 7.2


      Following the trial court’s Final Judgment, Valero filed a Motion for New Trial and

to Modify the Judgment. In this motion, Valero sought to have the Judgment reflect the

set-off in the amount it owed Super Circle 7 based on the assignment it had received from

Double S in the other suit. At this time, Double S filed its Notice of Appeal. Following a

hearing on Valero’s motion, the trial court executed an Amended Final Judgment that

awarded Double S $249,952.54 against Super Circle 7 and awarded Grissom & Thompson

$92,906.86 against Valero.3 As stated by Double S in their appellate brief, “The Amended

Final Judgment reflects an offset of the judgment amounts assigned to Valero by Double

S against what the trial court found was owed by Valero to Super [Circle] 7.” Valero filed



      2
         In its awards to Grissom & Thompson and Super Circle 7, the trial court added the
interest that was awarded by the arbitrator to the amount of the awards. However, the
amount of the award to Double S did not reflect the interest accrued to that date.
       3
       In this Amended Final Judgment, the trial court added the accrued interest for each
award to determine the amount of the awards.

                                             3
a Notice of Appeal regarding this Amended Final Judgment, but ultimately settled its

obligation to Grissom & Thompson and dismissed its appeal.


       This Court has received motions to dismiss from both Valero and Super Circle 7.

These motions contend that Double S does not have standing to appeal because it has no

justiciable interest in the issues it asserts on appeal. On July 17, 2008, we abated this

appeal to allow the parties to file briefs relating to the jurisdictional issue. We have

received Double S’s response to the motions to dismiss.


                                      Law and Analysis


       In their motion, Valero correctly indicates that the Amended Final Judgment was in

favor of Double S and that no award was made against Double S. Double S contends that

the trial court’s award of attorney’s fees directly to Grissom & Thompson injured Double

S and, thereby, gave Double S standing to challenge the Amended Final Judgment on

appeal. According to Double S, it was injured because the trial court’s direct award of

attorney’s fees from Valero to Grissom & Thompson prevented Double S from realizing a

full credit for the amount of its assignment to Valero.


       Subject matter jurisdiction is essential to the authority of a court to decide a case.

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is

implicit in the concept of subject matter jurisdiction. See id. In assessing whether a party

to a suit has standing, we must focus on whether the party has a sufficient relationship with

the lawsuit to have a justiciable interest in its outcome. Austin Nursing Ctr., Inc. v. Lovato,

171 S.W.3d 845, 848 (Tex. 2005). For a party to have a justiciable interest in a suit, there

                                              4
must be a real controversy between the parties which will be actually determined by the

judicial declaration sought. Id. at 849. An appealing party may not complain of errors that

do not injuriously affect it or that merely affect the rights of others. Torrington Co. v.

Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). While we are to review issues of subject

matter jurisdiction de novo, see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.

1998), in the present case, the issue of Double S’s standing did not arise until it attempted

to appeal the trial court’s Amended Final Judgment’s award of direct damages from Valero

to Grissom & Thompson.


       While it appears that Double S did not realize the full credit it intended to receive

when it made its assignment to Valero, Double S was not caused any financial harm by the

trial court’s Amended Final Judgment. Based on the arbitrator’s award, Super Circle 7

would have received approximately $201,000, with interest included to the date of the

Amended Final Judgment, from Valero, while Double S would have received approximately

$378,000, interest included, from Super Circle 7.4 Thus, if the intervention of Grissom &

Thompson had not been allowed, Double S’s assignment would have afforded it a

$201,000 credit against its debt to Valero, but would have reduced its recovery from Super

Circle 7 to $177,000.


       However, due to the trial court’s award of a portion of Super Circle 7's recovery to

its attorneys, Super Circle 7's direct recovery was decreased to $128,000. This decrease

reduced the amount that Valero owed to Super Circle 7 under the judgment and, therefore,



       4
           To simplify the analysis, we will round the awards to the nearest $1,000.

                                              5
reduced the amount that could be offset by the assignment. As a result, the $128,000

Valero owed to Super Circle 7 was removed from the Amended Final Judgment while

Double S’s recovery from Super Circle 7 was offset by the $128,000, resulting in the

$250,000 award to Double S from Super Circle 7. In the end, Double S received the

$93,000 that Valero was ordered to pay to Grissom & Thompson in its judgment against

Super Circle 7 as part of its recovery from Super Circle 7 rather than as a credit against its

debt to Valero. Based on the Amended Final Judgment, if Double S were to pay Valero

$93,000 from its $250,000 recovery, it would be in the same position it would have been

in if the trial court had not allowed the intervention of Grissom & Thompson.


       Double S has made no contention that it lost any benefit of the bargain or suffered

any other injury as a result of the trial court’s Amended Final Judgment. In fact, while

Double S contends that it was harmed by the Amended Final Judgment because it did not

receive a full credit for its assignment, we note that the assignment to Valero was for a sum

certain ($214,000) to be obtained from Double S’s recovery. Thus, under the terms of the

assignment, Valero was entitled to $214,000 from Double S’s recovery and any limit in the

application of an offset did not affect the assignment to Valero. Thus, we conclude that

Double S’s assignment to Valero was unaffected by the trial court’s award in favor of

Grissom & Thompson.


       Finally, Double S’s appellate issues challenge the direct award of damages to

Grissom & Thompson based on Grissom & Thompson’s contingency fee contract with

Super Circle 7. While it may have been inappropriate for the trial court to have awarded

contingent fees directly to counsel in the judgment, since the award only affected Super

                                              6
Circle 7's recovery, we believe that only Super Circle 7 would have standing to challenge

this award. Since Super Circle 7 has not challenged this award and since we conclude that

Double S does not have standing to challenge this award, we dismiss this appeal for want

of jurisdiction.


                                       Conclusion


       Having determined that Double S does not have standing to present the issues it

presents on appeal, we dismiss this cause for want of jurisdiction.




                                         Mackey K. Hancock
                                              Justice

Pirtle, J., concurs in the result.




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