AFFIRMED and Opinion Filed December 18, 2013 

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In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-01586-CV DIBON SOLUTIONS, INC. D/B/A REVENUE TECHNOLOGY SERVICES CORPORATION, Appellant V. MARTINAIR HOLLAND N.V., Appellee On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-09-02903 MEMORANDUM OPINION Before Justices Bridges, FitzGerald, and Myers Opinion by Justice Bridges Appellant Dibon Solutions, Inc. d/b/a Re venue Technology Services Corporation (“Dibon/RTS”) appeals from the summary judgme nt entered in favor of appellee Martinair Holland N.V. (“Martinair”). In two issues, appella nt contends the trial court erred in striking its amended petition when: (1) Dibon/RTS complied with rule 28 in identifying its “true name” by means of an amended petition and (2) Dibon/RT S was not a third-part y intervenor, but an original plaintiff, when its amended petition wa s stricken as a third-party intervention that violated the trial court’s sc heduling order. We affirm.–2– Background Dibon Solutions, Inc. (“Dibon”) entered into a Stock Acquisition Agreement (“2005 SAA”) with Revenue Technology Se rvices Corporation (“RTS”) on October 4, 2005. Under the terms of the 2005 SAA, Dibon acquired one hundred percent of RTS’s common stock. On November 29, 2007, Martinair and RTS en tered into the RTS Master Subscription Service Agreement (“Agreement”) for use of RTS’s prof it optimization products and related services. In the Agreement, RT S identified itself as “Revenue Technology Services Corporation (“RTS”), a duly registered Texas Corporat ion.” The Agreement expressly stated: RTS is a trade name for Revenue Tec hnology Services Corporation. The RTS logo is a trademark of Revenue Technology Services Corporation. The Agreement was signed on RTS’s behalf by Loren Alexander in his capacity as Chairman of RTS. Loren Alexander was Chief Executive Officer and Chairman of the Board of Directors of RTS at the time that the Agreement was executed. The Agreement was signed on Martinair’s behalf by Paul Greg orowitsch in his capacity as Martinair’s President and CEO. There were no other signatories or parties identified in the Agreement. The Agreement contains a “merger” clause, which reads as follows: This Agreement constitutes the full and complete understanding and Agreement of Client and RTS and supersedes al l prior negotiations, understandings, and agreements. Except as expressly stated in this Agreement, any waiver, modification, or amendment of any provisi on of this Agreement will be effective only if in the form of a written attachment or amendment to this Agreement that is signed by Client and RTS. On February 10, 2006, the Texas Secretary of State ordered the forfeiture of RTS’s charter or certificate of authority for failure to comply with section 171.309 of the tax code. At the latest, Dibon was aware that RTS had forfe ited its corporate existence on January 8, 2008. 1

1 Dibon filed suit against Loren Alexander, the Chairman and CEO of RTS, on January 8, 2008. In the lawsuit, Dibon alleged, amo ng other things that Loren Alexander allowed RTS’s “charter to be forf eited for non-payment of taxes.” Dibon sued for breach of contrac t, breach of–3– There is no evidence in the record that Dibon or RTS ever sought the reinstatement of RTS’s corporate existence. 2 On February 11, 2009, Martinair sent a letter outlining its complaints about the services and profit optimization software provided by RTS under the Agreement and terminated the Agreement with RTS. A month later, RTS resp onded by filing suit agains t Martinair for breach of contract. RTS contended that, where the Agreement provi ded for a 60-month subscription period, Martinair improperly terminated the Agre ement after only 6 months. RTS claimed that, under the terms of the Agreement, Martinair was therefore liable for the remaining subscription period. RTS’s original petition identified the pl aintiff as RTS, “a corporation organized under the laws of the State of Texas.” On January 25, 2010, RTS served its Responses to Martinair’s Requests for Disclosure, stating that the correct name of the plaintiff in the lawsuit was “Revenue Technology Services Corp.” RTS further stated that it knew of no ot her potential parties. RTS did not disclose Dibon or Dibon/RTS as a person having knowledge of releva nt facts. The record also contains RTS’s additional responses to requests for disclosu re, dated April 22, 2011, May 24, 2011, and June 2, 2011. However, these responses do not disclo se Dibon or Dibon/RTS as a person having knowledge of relevant facts. On March 7, 2011, the fifth amended agreed level 3 scheduling order (“fifth amended scheduling order”) was entered by the trial court. The fifth amended scheduling order set the following deadlines: March 29, 2011 Parties shall join a ny additional parties.

fiduciary duty, tortious interference, misappropriation of trade secrets and confidential information, and conversion. Dibon fu rther made a request for accounting, declaratory judgment, and attorneys’ fees. 2 According to the record before us, as of April 26, 2011, the Texa s Secretary of State’s records s howed that RTS’s corporate exi stence remained forfeited

.–4– May 30, 2011 Parties asserting claims for relie f shall supplement or amend any pleadings. June 14, 2011 Parties resisting claims for relief shall supplement or amend any pleadings.

... July 5, 2011 All dispositive motions (includi ng motions for summary judgment and challenges to expert witnesses) must be filed. On June 14, 2011, Martinair filed a motion fo r summary judgment ag ainst RTS, arguing RTS’s forfeiture of its corpor ate existence on February 10, 2006 de prived it of legal authority and capacity under Texas law to enter into the Agreement upon which it sued Martinair. On June 29, 2011, an amended petition was file d by RTS, purporting to substitute RTS’s parent corporation, Dibon Solutions , Inc., as the plaintiff. Acco rding to the amended petition, the new plaintiff in the lawsuit was “Dibon Solu tions, Inc. d/b/a Revenue Technology Services Corp. (“RTS”). . . a corporation organized under the laws of the State of California” (“Dibon/RTS”). On June 30, 2011, Dibon/RTS filed a response to Martinair’s motion for summary judgment against RTS, asserting that Dibon/RTS had both standing and capac ity to prosecute the breach of contract claim against Martinair, becau se it was the true plain tiff in the case as Dibon had been “doing business” as RTS and, in the alternativ e, as sole shareholder of RTS, it was entitled to prosecute RTS’s claim. Upon receipt of the amended petition, Martinair filed an objection to and motion to strike the amended petition as untimely under the fifth am ended scheduling order. On that same day, because the trial of the case wa s set to begin in less than 30 da ys when RTS amended its petition and because Martinair wished to conduct addi tional discovery, Dibon/RTS and Martinair filed a joint motion for continuance of th e trial setting to November 1, 2011.–5– On July 7, 2011, the trial court heard Mart inair’s motion for summary judgment and granted in part Martinair’s motion, 3 ruling that “Texas corporation Revenue Technology Services Corporation, having been forfeited by the Texa s Secretary of State on February 10, 2006, lacks capacity to prosecute claims in this lawsuit.” The tr ial court also grante d in part Dibon/RTS’s motion for partial summary judgment as to Martinair’s fraudulent inducement claim. On July 15, 2011, Dibon filed an assumed name certificate, asserting that it was doing business as “Revenue Technology Services Cor poration.” Twelve days later, on July 27, 2011, the trial court heard and gran ted Martinair’s second amended motion to strike the amended petition. The trial court’s decision was based upon its finding that Dibon Solutions, Inc. was “a new party to the case and, in filing the Amended Petition on J une 29, 2011, Dibon Solutions, Inc. violated the Court’s then-exi sting scheduling order.” On October 18, 2011, Martinair non-suited its re maining claims against RTS. The nonsuit was granted by the trial cour t on October 29, 2011, leaving no ot her live claims. Therefore, on October 31, 2011, the trial court rendered final judgment that RTS take nothing on its claim against Martinair. On appeal, Dibon/RTS only challenges the tr ial court’s ruling on Martinair’s motion to strike Dibon/RTS’s amended petition. Analysis Issue One In its first issue, Dibon/RTS contends the tr ial court erred in striking its amended petition. Specifically, Dibon/RTS contends it precisely and timely complied w ith rule 28 in identifying its “true name” by means of an amended petition and that the evidence demonstrates Dibon

3 The trial court granted Martinair’s motion for summary judgment against “Dibon Solutions, Inc. d/b/a Revenue Technology Servi ces Corp. (“RTS”).”–6– operated its business using the trade names of “Revenue Technology Services Corporation” and “RTS” before and during its dealin gs with Martinair. Dibon/RT S also argues that striking its amended petition works an injustice by allowing Ma rtinair to receive the benefit of the contract and then avoiding reciprocal consideration. Rule 28 permits a partnership doing business un der an assumed name to file suit in that
name. T EX
. R. C IV
. P. 28. However, for a party to take advantage of rule 28 and sue in its common or assumed name, “there must be a s howing that the named entity is in fact doing business under that common name.” See KM-Timbercreek, LLC v. Harris County Appraisal
Dist. , 312 S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.] 2009); Seidler v. Morgan , 277 S.W.3d 549, 553 (Tex. App.—Texarkana 2009, pet. de nied). Whether an entity does business under an assumed or common name is a que stion of fact for the trial court. Sixth RMA Partners, L.P. a/k/a RMA Partners, L.P. v. Sibley , 111 S.W.3d 46, 52 (Tex. 2003). In this case, the trial court made no explicit findi ng on whether RTS was Dibon’s assumed name, and neither party requested findings of fact on this or any other issue. When neither party requests findings of fact and conclusions of law, 4 we imply all fact findings necessary to support the trial court’s judgment. Id. A party can challenge implied fact findings for legal sufficiency. We constr ue Dibon/RTS’s contention that th e trial court erred in denying a rule 28 substitution as a legal sufficiency challenge. See id. (“Although Sibley does not expressly present this contention as a legal sufficien cy challenge to the implied finding of fact. . . we will construe it as such.”) In reviewing this point, therefore, we consider the evidence in the light most favorable to the challenged finding an d indulge every reasonabl e inference that would support it. See City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005).

4 Here, Dibon/RTS filed a motion for clarifi cation of the court’s order striking its first amended pe tition. However, our recor d does not include an order on the referenced motion. Further, our record includes no requests for findings of fact and conclusions of law s.–7– A corporation or foreign filing entity that “regularly conducts business or renders professional services in this state under an assumed name” must file an assumed name certificate. T EX
. B US

. & C OM

. C ODE A NN
. §71.101. Unless an assumed name certificate is on file, a corporation is prohibite d from maintaining an action or proceeding arising out of a contract in which an assumed name was used. Id. at §71.201(a). Here, the record before us demonstrates Dibo n did not file an assu med name certificate as required by section 71.101 until July 15, 2011, over three years after the execution of the Agreement to which Dibon/RTS claims it was a party. 5 The record further reflects that in their original petition against CEO and Chairman Lo ren Alexander, both Dibon and RTS allege that, under the 2005 SAA, Dibon agreed “to maintain and sustain the operations of RTS, as a separate business entity under its supervision and control [and] to maintain and preserve all of the Transferred Assets, in its separate business , under the RTS corporate name. . . .” Loren Alexander, acting as Chairman of RTS, si gned the Agreement with Martinair, but no representative of Dibon or Dibon/RTS signed the Agreement. 6 Rule 28 does not permit a party to claim it was using an assumed name in order to gain the benefit of the rule, but requires a party to demonstrate it act ually conducted busin ess under that assumed name. See KM , 312 S.W.3d at 730; Seidler , 277 S.W.3d at 553. Therefore, cons idering the record before us, we conclude Dibon failed to make such a showing. See City of Keller , 168 S.W.3d at 822. Dibon/RTS next argues that striking its ame nded petition works an injustice by allowing Martinair to receive the benefit of the contract and then avoiding recipr ocal consideration. However, we have already determ ined Dibon is not a signatory to the Agreement. Instead, the

5 This certificate was also filed a little over a month after Ma rtinair filed its motion for summary judgment, alleging the forf eiture of RTS’s corporate existence as grounds for the summary judgment. 6 Counsel for Dibon/RTS conceded during the hearing on the motion to strike that “[i]t’s not apparent from the contract to a th ird party other than the signatories that [Loren Alex ander] is an agent of Dibon Solutions.” Ho wever, this Court has already noted the l aw does not presume agency. Wright Group Architects-Planners, P.L.L.C. v. Pierce , 343 S.W.3d 196, 200 (Tex. App.—Dallas 2011, no pet.).–8– unambiguous language of the Agreement creates a contract between Martinair and RTS. Because it was not a party to the Agreement, Dibon/RTS cannot pursue a breach of contract claim with respect to the Agreement. See Hackberry Creek Country Club v. Hackberry Creek
Home Owners Ass’n , 205 S.W.3d 46, 55 (Tex. App.—Dallas 2006, no pet.) (noting a breach of contract occurs when a party to the contract was damaged as a result of the breach). We overrule appellant’s first issue.
Issue Two In its second issue, appellant contends the trial court erred in striking its amended petition as a third-party intervention that violated the trial court’s sc heduling order when: (1) Dibon was not a third-party intervenor, but ra ther the original plaintiff in the case; (2) if Dibon was a thirdparty intervenor, the trial court’s scheduling order coul d not preemptively forbid Dibon’s intervention; and (3) if Dibon was a third-party intervenor, the trial c ourt could not strike Dibon’s intervention after the tr ial court had previously gran ted its summary judgment and Martinair had previously assert ed counterclaims against Dibon. Under our discussion of the first issue, we have already determined that RTS, not Dibon, was the original plaintiff in this case. Ther efore, appellant’s first argument under its second issue fails. We next turn to appellant’s issues which assume Dibon was a third-party intervenor. Rule 60 provides that “[a]ny party may intervene by filing a pleading subject to being stricken by the court for sufficient cause on the motion of any party.” T EX
. R. C IV
. P. 60 (emphasis added). The rule authorizes a party with a justiciable interest in a pending suit to intervene in the suit as a matter of right. Guar. Fed. Sav. Bank v. Horseshoe Operating Co. , 793 S.W.2d 652, 657 (Tex. 1990). To constitute a justiciable interest, the intervenor’s intere st must be such that if the original action had never been commenced, and it ha d first brought suit as th e sole plaintiff, it–9– would have been entitled to recover in its own name to the extent of at least of pa rt of the relief sought in the original suit. In re Union Carbide Corp. , 273 S.W.3d 152, 155 (Tex. 2008) (per curiam). “Because a trial court has ‘broad’ di scretion in determining whether to strike an intervention, that discretion pres umably includes consideration of all issues related to whether intervention was proper in the case under the circumstances, i.e., any sufficient cause.” Allen Parker Co. v. Trustmark Nat. Bank , No. 14-12-00766-CV, 2013 WL 2457113, at *6 (Tex. App.—Houston [14 th Dist.] June 6, 2013, pet. denied) (mem . op.) (emphasis in original) (citing
T EX
. R. C IV
. P. 60; N.E. Neighbors v. Tex. Comm’n on Envtl. Quality , No. 03-11-00277-CV, 2013 WL 1315078, at *4 (Tex. App.—Austin Marc h 28, 2013, pet. denied) (mem. op.)). Appellant contends the trial court could not strike Dibon’s intervention after the trial court had previously granted its summary judgme nt. Specifically, Dibon/RTS contends the trial court erred because it had previously “recognized Dibon ha[d] a justiciable interest in the case” by granting the motion for summary judgment as to Martinair’s fraudulent inducement claims. However, the record before us reflects the motion for summary judgment in question was filed by RTS, not Dibon/RTS, on June 8, 2011. Afte r Martinair filed its motion for summary judgment, RTS then filed its amended petition, purportedly substituting in Dibon/RTS, on June 29, 2011. Martinair filed its motion to strike on July 6, 2011. The trial court then signed an order granting summary judgment as to the frau dulent inducement claim in favor of Dibon/RTS on July 15, 2011. 7 The trial court thereafter conducted a hearing on Martinair’s second amended motion to strike the amende d petition on July 27, 2011. Thus, it was not until almost two weeks after it granted summary judgment that the trial court conducted its hearing to determine whethe r Dibon/RTS could substitute in for RTS. It

7 Martinair contends, and Dibon/RTS does not refute, that counsel for Dibon/RTS prepared the order signed by the trial court on July 15, 2011.–10– follows then that, contrary to appellant’s argu ment, the trial court did not determine whether Dibon had a justiciable interest until almost two weeks after it granted the summary judgment filed by RTS. See Horseshoe Operating Co. , 793 S.W.2d at 657. Appellant also contends the trial court could not strike Dibon’s intervention after Martinair had previously asserted counterclaims against Dibon/RTS. Because Martinair asserted counterclaims against Dibon/RTS after the amendment, Dibon/RTS alleges Martinair must be held to have waived its right to seek to strike the amended petition. We disagree. In its fourth amended original answer, affi rmative defenses and counterclaims as to Dibon/RTS’s amended petition, Martinair specifically denies: (1) it contracted with Dibon; (2) RTS or Dibon performed its obl igations under the Agreement; (3 ) Dibon has legal capacity to sue Martinair; (4) Dibon is entitled to r ecover on the Agreement; and (5) Dibon was doing business under the assumed name, “Revenue Technology Services Corp.” at the time the Agreement was entered into or when the lawsuit wa s filed. Martinair furthe r alleges a defect of parties in that “Texas corporation RTS is a nece ssary party for this laws uit to proceed.” In addition, under its counterclaims, Martinair precedes the claims with the following: “[i]f Dibon is deemed actually to be Plaintiff in this case. ” We, therefore, conclude Martinair did not waive its right to seek to stri ke the amended petition. Appellant next argues under the assumption that appellant was an intervenor that the trial court’s scheduling order could not preemptively fo rbid Dibon’s intervention. We again disagree. A party, namely RTS, may not amend its pl eadings after the deadline set forth in a pretrial order without se curing leave of court. See Hart v. Moore , 952 S.W.2d 90, 95 (Tex. App.—Amarillo 1997, pet. denied). Even when such leave is sought, the trial court may properly deny the request. See Roskey v. Continental Cas. Co. , 190 S.W.3d 875, 881 (Tex. App.—Dallas 2006, pet. denied) (the trial court di d not abuse its discretion in refusing party’s–11– amendment 6 days after deadline in pretrial or der, because the party could have amended the pleading during the 17 months case was pending). A court should refuse amendment if: (1) the opposing party presents evidence of surprise or prejudice; or (2 ) the amendment results in the assertion of a new claim or defense and thus is prejudicial on its face. See State Bar of Texas v. Kilpatrick , 874 S.W.2d 656, 658 (Tex. 1994). The record before us shows RTS filed suit against Ma rtinair on Ma rch 11, 2009 for breach of contract. Over the course of the case, RTS consistently maintained that RTS (the Texas corporation) was a proper plaintiff to the lawsuit. In its responses to requests for disclosures (four separate responses), RTS di d not disclose Dibon as a person having knowledge of relevant facts. Only af ter Martinair filed its motion fo r summary judgment against RTS, alleging its forfeiture of its corporate status, did RTS file its amended petition, seeking to substitute Dibon/RTS (a California corporat ion) as plaintiff in this lawsuit. The fifth amended agreed level 3 sc heduling order established May 30, 2011 as the deadline for the parties to amend their pleadings. Without seeking leave of court, RTS amended its pleading on June 29, 2011, purportedly substituti ng in an entirely new party over two years after it instituted suit against Martinair. Under the facts of this case, an amendment which adds an entirely new party after the deadline to amend (especially when filed wit hout leave of court) is necessarily prejudicial to Martinair. See State Bar of Texas , 874 S.W.2d at 658. We conclude appellant’s amended petition violat ed the trial court’s amended agre ed level 3 scheduling order.
See Roskey , 190 S.W.3d at 881. Thus, even after assuming Di bon was an third-party inte rvenor in this case and considering all issues related to whether interven tion was proper in the case under the circumstances, we must conclude the trial court wa s within its broad discre tion to conclude it had–12– “sufficient cause” to strike the purported intervention by Dibon/RTS. See T EX
. R. C IV
. P. 60; Allen Parker , 2013 WL 2457113, at *6. We overrule appellant’s second issue. Conclusion Having overruled appellant’s two issues, we affirm the judgment of the trial court.

111586F.P05

/David L. Bridges/ DAVID L. BRIDGES JUSTICE–13– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DIBON SOLUTIONS, INC. D/B/A REVENUE TECHNOLOGY SERVICES CORPORATION, Appellant
No. 05-11-01586-CV V. MARTINAIR HOLLAND N.V., Appellee On Appeal from the 14th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-09-02903. Opinion delivered by Justice Bridges. Justices FitzGerald a nd Myers participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee MARTINAIR HOLLAND N.V. recover its costs of this appeal from appellant DIBON SOLUTI ONS, INC. D/B/A REVENUE TECHNOLOGY SERVICES CORPORATION.
Judgment entered December 18, 2013

/David L. Bridges/ DAVID L. BRIDGES JUSTICE