clearview-properties-lp-michael-starcher-trustee-for-the-crown-hill ( 2009 )

Motion for Rehearing Overruled and Supplemental Opinion on Rehearing filed May 14, 2009

Motion for Rehearing Overruled and Supplemental Opinion on Rehearing filed May 14, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-06-00716-CV

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CLEARVIEW PROPERTIES, L.P.; MICHAEL STARCHER, TRUSTEE FOR THE CROWN HILL TRUST; CRAIG WALKER, D/B/A CLEARVIEW PROPERTIES, L.P.; AND CLEARVIEW INVESTMENTS, LTD., Appellants

V.

PROPERTY TEXAS SC ONE CORP., CLARION PARTNERS, L.L.C.,

GRANITE PARTNERS, L.L.C., TRIPLE NET PROPERTIES, L.L.C.,

T. REIT, L.P., AND T. REIT, INC., Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2003-22196

S U P P L E M E N T A L   O P I N I O N   O N   R E H E A R I N G

Clearview moved for rehearing regarding our disposition of its third issue, which complained about the trial court=s award of attorney=s fees to Property Texas against Starcher and Walker d/b/a Clearview L.P.  We overrule Clearview=s motion and issue this supplemental opinion on rehearing to respond to some of its arguments.

Clearview argues extensively that Property Texas=s basis for filing its amended attorney=s fees counterclaim, in which it changed the name of the counter-defendant from Clearview L.P. to Starcher and Walker d/b/a Clearview L.P., was factually incorrect and that we erred in stating that its limited partnership certificate had not been filed with the Secretary of State.  Because this conclusion was the basis of our waiver and misnomer analysis, Clearview claims our holding was also incorrect.  Though Property Texas disagrees, Clearview could possibly be correct that its certificate of limited partnership was on file during all relevant times.  However, as we explained before, Clearview never filed a verified denial under Rule 93 raising this issue, so it is waived.  See Tex. R. Civ. P. 93; Dolenz v. Vail, 143 S.W.3d 515, 517B18 (Tex. App.CDallas 2004, pet. denied).

Clearview argues that verification was not required because the truth of its corporate status appears in the record, based on documents from the Secretary of State and an alleged admission in an affidavit.  These arguments fail.  The Secretary of State records were not in the record when the answer to the amended counterclaim was due; Clearview did not present them to the trial court until after judgment was rendered.  Thus, the records could not have been the basis for failing to file a verified answer.  Further, the affidavit at issue, which was filed by Property Texas=s attorney during the summary judgment proceedings, stated merely that an agent signed the underlying contract for Clearview L.P. without addressing Clearview=s legal status.

Clearview further insists that it did not waive its corporate status argument because it was actually Property Texas=s burden to challenge the capacity in which Clearview sued Property Texas.  Clearview cites no authority for this proposition, and we are not persuaded that it is correct.  Property Texas did not seek to avoid liability to Clearview based on a corporate capacity argument, but Property Texas did seek to ensure that it recovered its attorney=s fees from the proper entity.  We see no reason that this action negated Clearview=s duty to file a verified denial to Property Texas=s amended counterclaim, which was amended specifically to change the name of the counter-defendant, if Clearview contested the capacity in which Property Texas was seeking to recover attorney=s fees. See Tex. R. Civ. P. 93; Dolenz, 143 S.W.3d at 517B18.

Finally, Clearview argues that the trial court=s judgment was inherently contradictory because it granted relief against both Clearview L.P. and Starcher and Walker d/b/a Clearview L.P.  The trial court did not order that Property Texas could recover attorney=s fees against Clearview L.P.  Therefore, as to attorney=s fees, which is the only issue in the counterclaim, the trial court=s judgment is not contradictory.

For these additional reasons, the trial court did not err in awarding Property Texas attorney=s fees against Starcher and Walker d/b/a Clearview L.P.

/s/      Leslie B. Yates

Justice

Panel consists of Justices Yates, Anderson, and Brown.