John C. Flood of DC, Inc. v. Supermedia, L.L.C.

• Decision Date: 13 September 2013
• Docket Number: No. 05–12–00307–CV.,05–12–00307–CV.
• Citation: 408 S.W.3d 645
• Parties: JOHN C. FLOOD OF DC, INC., John C. Flood, Inc., and Melville Davis, Appellants v. SUPERMEDIA, L.L.C., Appellee.
• Court: Texas Court of Appeals

408 S.W.3d 645

JOHN C. FLOOD OF DC, INC., John C. Flood, Inc., and Melville Davis, Appellants

v.SUPERMEDIA, L.L.C., Appellee.

No. 05–12–00307–CV.

Court of Appeals of Texas,

Dallas.

Aug. 2, 2013.

Rehearing Overruled Sept. 13, 2013.

Charles W. McGarry, Dallas, for Appellants.

Cleveland Guy Clinton, Hugh A. Fuller, Dallas, for Appellee.

Before Justices LANG, MYERS, and EVANS.

OPINION

Opinion by Justice MYERS.

Appellants John C. Flood of DC, Inc., John C. Flood, Inc., and Melville Davis appeal from summary judgments granted in favor of appellee SuperMedia, L.L.C. In two issues, appellants argue (1) the trial court erred by granting summary judgment for SuperMedia for breach of contract without evidence SuperMedia was entitled to payment under any of the contracts; and (2) the trial court erred by granting summary judgment against Melville Davis for breach of a contract to which he was not a party. We affirm.

Background and Procedural History

Appellee SuperMedia, L.L.C, sued appellants John C. Flood of DC, Inc., J, C. Flood, Inc. a/k/a John C. Flood, Inc., Melville Davis, individually, and Robert Smiley, individually, for breach of contract and quantum meruit to collect amounts allegedly due for print media and internet advertising services that appellee provided to appellants. Appellants filed an original answer containing a general denial and asserting SuperMedia lacked capacity to sue, and that appellants (defendants) Davis and Smiley were not liable in the capacity in which they were sued. Appellants, however, did not verify their answer.

Appellee filed both traditional and no-evidence motions for summary judgment, to which appellants timely responded. Appellants' response included affidavits from Davis and Smiley. Appellee filed written objections to appellants' summary judgment evidence, challenging statements in the Davis and Smiley affidavits. The trial court sustained all of the objections, and appellants do not challenge the trial court's ruling.

On the morning of the hearing on appellee's traditional and no-evidence motions for summary judgment, less than an hour before the scheduled start of the hearing, appellants filed an amended answer that contained a verified denial of appellee's lack of capacity to sue and that Davis and Smiley were not liable in the capacity in which they were sued. The amended answer also alleged the affirmative defense of agency The trial court granted appellee's no-evidence summary judgment motion on appellants' affirmative defenses of estoppel, prior breach of contract, failure of consideration, fraud, laches, and statute of frauds, and granted a partial summary judgment that John C. Flood of DC, Inc. and Melville Davis owed appellee $340,838.96, and that John C. Flood, Inc. owed appellee $233,649.56.¹ The trial court's order states that appellee would have to file an election choosing whether the final judgment would be against John C. Flood of DC, Inc. or Melville Davis for the $340,838.96.

The trial court's order also states that liability for appellee's attorney's fees and for the additional damages sought against John C. Flood of DC and Melville Davis would have to be tried. Appellee non-suited its remaining claims for damages and attorney's fees and elected to take a final judgment against Melville Davis rather than John C. Flood of DC, Inc. The trial court entered a final judgment against Davis for $340,838.96 and against John C. Flood, Inc. for $233,649.56. In both its partial summary judgment order and the final judgment, the trial court states that it considered the “pleadings timely filed.”

Discussion

Appellee's Standing to Sue

In their first point of error, appellants argue the trial court erred by granting summary judgment for appellee based on breach of contract because there is no evidence appellee was entitled to payment under any of the contracts. Appellants specifically argue that appellee failed to establish its standing to bring suit, that appellee's lack of standing to bring suit for breach of contract negates an essential element of that cause of action, and that appellee cannot rely on quantum meruit as an alternative theory of recovery. Appellee responds that it does indeed have standing to bring this suit, but that appellants confuse “standing” and “capacity,” and that appellants waived any argument about appellee's capacity to sue or be sued because they did not timely file a sworn denial pursuant to rule 93 of the Texas Rules of Civil Procedure.

Standard of Review

We review the trial court's summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We apply the well-established standards for reviewing summary judgments. SeeTex.R. Civ. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310–11 (Tex.2009) (no-evidence summary judgment standards of review); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985) (traditional summary judgment standards of review).

A no-evidence motion for summary judgment under rule 166a(i) must challenge specific elements of the opponent's claim or defense on which the opponent will have the burden of proof at trial. Tex.R. Civ. P. 166a(i). The opponent must then present summary judgment evidence raising a genuine issue of material fact to support the challenged elements. Id. In reviewing a no-evidence summary judgment motion, we “review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006)); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002). A genuine issue of material fact exists if the non-movant produces more than a scintilla of evidence supporting the existence of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004).

A motion for summary judgment on traditional grounds must show there is no genuine issue as to a specified material fact and that, as a result, the moving party is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). Thus, for a defendant to prevail on a traditional motion for summary judgment, he must either disprove at least one element of the plaintiff's claim as a matter of law, or conclusively establish all elements of an affirmative defense. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996); Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex.App.-Dallas 2007, pet. denied). If the movant meets its burden, then and only then must the non-movant party respond and present evidence raising a fact issue as to the material facts in question. See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex.1999).

Standing and Capacity

A party must have both standing to sue and capacity to sue. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex.2005). “ ‘Texas courts have had considerable difficulty in defining the relationship of the twin doctrines of capacity and standing.’ ” Id. at 848 n. 1 (quoting 5 William V. Dorsaneo III, Texas Litigation Guide § 70.06[2] (2005)). “The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome, whereas the issue of capacity ‘is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.’ ” Austin Nursing Ctr., 171 S.W.3d at 849 (quoting 6A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1559, at 441 (2d ed. 1990)). “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.” Austin Nursing Ctr., 171 S.W.3d at 848–49 (quoting Nootsie Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996)); see also Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Standing is a component of subject matter jurisdiction and can never be waived. Austin Nursing Ctr., 171 S.W.3d at 849;Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443, 446 (Tex.1993). Unlike standing, however, “an argument that an opposing party does not have the capacity to participate in a suit can be waived.” Nootsie, 925 S.W.2d at 662 (citing Tex.R. Civ. P. 93).

Standing

In Austin Nursing Center, the Texas Supreme Court explained that “standing” requires there be “a real controversy between the parties” that “will be actually determined by the judicial declaration sought.” Austin Nursing Ctr., 171 S.W.3d at 849 (quoting Nootsie, 925 S.W.2d at 662). In addition, to have standing a party must be “personally aggrieved” and the injury “concrete and particularized, actual or imminent, not hypothetical.” Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 550 (Tex.App.-San Antonio 2011, no pet.); see also Austin Nursing Ctr., 171 S.W.3d at 848. A party's standing is determined at the time suit is filed, and we look to the facts alleged in the petition and may consider other evidence in the record, if necessary, to resolve the question. Prize Energy Res., 345 S.W.3d at 550;see Everett v. TK–Taito, L.L.C., 178 S.W.3d 844, 853 (Tex.App.-Fort Worth 2005, no pet.). An appellate court considering standing for the first time on appeal must both construe the petition in favor of the plaintiff and, if necessary, review the entire record to determine “if any evidence supports standing.” Tex. Ass'n of Bus., 852 S.W.2d at 446.

Is Appellants' “Standing” Complaint...