Gary Dakil D/B/A 3 N 1 Water Solutions v. Leland Lege , 408 S.W.3d 9 ( 2012 )

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).
2
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.
5