i 

No. 01-14-00370-CV 

 

IN THE COURT OF APPEALS FOR 

THE FIRST JUDICIAL DISTRICT 

HOUSTON, TEXAS 

 

REPUBLIC PETROLEUM L.L.C. AND REPUBLIC PETROLEUM PARTNERS 

L.P., 

Appellants, 

v. 

DYNAMIC OFFSHORE RESOURCES NS L.L.C. AND W&T OFFSHORE, 

INC., SUCCESSOR BY MERGER OF OFFSHORE SHELF L.L.C., 

Appellees. 

Appeal from the 270th Judicial District Court 

of Harris County, Texas 

Oral argument requested 

 

REPLY BRIEF OF CROSS-APPELLANTS DYNAMIC OFFSHORE RESOURCES NS L.L.C.

AND W&T OFFSHORE, INC. SUCCESSOR BY MERGER OF OFFSHORE SHELF, L.L.C. 

 

 GIEGER, LABORDE & LAPEROUSE, 

 L.L.C. 

KENNETH H. LABORDE 

 Texas State Bar No. 11786070 

 klaborde@glllaw.com 

 DANIEL G. RAUH 

 drauh@glllaw.com 

Louisiana State Bar No. 27280 

(Pro Hac Vice) 

ACCEPTED

01-14-00370-cv

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/13/2015 4:04:08 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/13/2015 4:04:08 PM CHRISTOPHER A. PRINE Clerk
ii 

CHARLOTTE A. FIELDS 

 cfields@glllaw.com 

Texas State Bar No. 24032175 

 Gieger, Laborde & Laperouse, 

 1177 West Loop South, Suite 750 

 Houston, Texas 77027 

 Telephone: (832) 255-6000 

 Facsimile: (832) 255-6001 

 

COUNSEL FOR DEFENDANT 

DYNAMIC OFFSHORE RESOURCES NS, 

L.L.C. 

 

- AND- 

 

 JOHNSON DELUCA KURISKY & 

 GOULD 

A Professional Corporation 

BRADLEY L. DELUCA 

bdeluca@jdkglaw.com 

Texas Bar No. 05653800 

BRIGID D. ASHCRAFT 

bashcraft@jdkglaw.com

Texas Bar No. 09193167 

4 Houston Center 

1221 Lamar, Suite 1000 

Houston, Texas 77010 

(713) 652-2525 – Telephone 

(713) 652-5130 – Facsimile 

COUNSEL FOR DEFENDANT 

W&T OFFSHORE, INC., successor by 

merger of OFFSHORE SHELF, L.L.C. 
iii 

TABLE OF CONTENTS

Index of Authorities ........................................................................................iv 

Statement of Facts ............................................................................................ 1 

SUMMARY OF ARGUMENT .............................................................. 2 

 I. Republic L.L.C. had no standing and/or capacity to sue or recover 

damages .............................................................................................. 2 

 A. Privity of contract .............................................................................. 2 

 

 B. Standing and capacity ........................................................................ 2 

 C. Rule 93 verifications ........................................................................ 3 

 D. Republic L.L.C.’s working interest .................................................. 3 

 E. The Charge ........................................................................................ 4 

ARGUMENT .................................................................................................... 5 

 I. Privity of contract does not equate with standing ............................. 5 

 II. The HI 115 OOA did not give Republic L.L.C. capacity to sue or 

 recover damages ............................................................................... 6 

 III. Defendants’ rule 93 verifications were sufficient .......................... 9 

 IV. Republic L.L.C.’s working interest ownership is relevant ........... 10 

 V. Defendants did not waive any points of error ............................... 12 

Prayer ............................................................................................................ 16 

Appendix ........................................................................................................ 16 

Certificate of Compliance ............................................................................. 18 

Certificate of Service .................................................................................... 18 
iv 

INDEX OF AUTHORITIES 

Cases 

Austin Nursing Ctr. Inc. v. Lovato, 171 S.W.3d 845 

(Tex. 2005) ..................................................................................................... 13 

Byrd v. Estate of Nelms, 154 S.W.3d 149 

(Tex. App. - Waco 2004, pet. denied) ............................................................ 14 

Cecil v. Smith, 804 S.W.2d 509 (Tex. 1991) .................................................. 15 

Cooper v. Circle Ten Council Boy Scouts of America, 254 S.W.3d 689 

(Tex. App. - Dallas 2008, no pet.) .................................................................. 10 

Damian v. Bell Helicopter Textron, Inc., 352 S.W.3d 124 

(Tex. App. - Fort Worth 2011, pet. struck) ..................................................... 14 

Denman v. SND Operating, L.L.C., No. 06-04-00061-CV, 2005 WL 2316177 

(Tex. App. - Texarkana Sept. 23, 2005, no pet.) ....................................... 12,13 

Fuqua v. Taylor, 683 S.W.2d 735 

(Tex. App. – Dallas 1984, writ ref’d n.r.e.) .................................................... 11 

Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 

(Tex. App. - Houston [14th Dist.] 2014, no pet.) ............................................. 1 

Harmon v. 1401 Elm Street Condominium Ass'n, 139 S.W.3d 411 

(Tex. App. - Dallas 2004, no pet.) .................................................................. 16 

Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605 

(Tex. 2004) ....................................................................................................... 5 

John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645 

(Tex. App. - Dallas 2013, pet. denied) ........................................................... 13 

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 

(Tex. 1998) ..................................................................................................... 14 
v 

Mekeel v. U.S. Bank Nat. Ass'n, 355 S.W.3d 349 

(Tex. App. - El Paso 2011, pet. dism'd) .......................................................... 10 

Nauslar v. Coors Brewing Co., 170 S.W.3d 242 

(Tex. App. - Dallas 2005, no pet.) ................................................................... 6 

Republic National Bank of Dallas v. National Bankers Life Ins. Co, 427 

S.W.2d 76 (Tex. Civ. App. - Dallas 1968, writ ref’d n.r.e.) ............................ 5 

Rhey v. Redic, 408 S.W.3d 440 

(Tex. App. - El Paso 2013, no pet.) ................................................................ 15 

Shipley v. Unifund CCR Partners, 331 S.W.3d 27 

(Tex. App. - Waco 2010, no pet.) ................................................................... 13 

Solares v. Solares, 232 S.W.3d 873 

(Tex. App. - Dallas 2007, no pet.) ............................................................ 15, 16 

Star Enterprise v. Marze, 61 S.W.3d 449 

(Tex. App. - San Antonio 2001, pet. denied) .................................................. 14 

State Bar v. Gomez, 891 S.W.2d 243 (Tex. 1994) ............................................ 5 

Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504 

(Tex. 1995) ........................................................................................................ 5 

T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 

(Tex. 1992) ................................................................................................ 14, 15 

United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914 

(Tex. App. - Houston [14th Dist.] 2000, pet. denied) ..................................... 15 

Webb v. Voga, 316 S.W.3d 809 

(Tex. App. - Dallas 2010, no pet.).. .................................................................. 6 

Rules / Statutes 

Tex. R. App. P. 33.1(a) ................................................................................... 10 

Tex. R. App. P. 38.1(g). .................................................................................... 1 
vi 

Tex. R. Civ. P. 93 ........................................................................................... 10 

Tex. Civ. Prac. & Rem. Code §132.001 ......................................................... 10 

Other Authorities 

2 McDonald & Carlson Tex. Civ. Prac. § 7:21 (2d. ed.) ................................ 10 
1 

STATEMENT OF FACTS 

Republic L.L.C. did not address or controvert the following statements in 

Defendants’ Appellants’ Brief, Statement of Facts: 

1. Effective October 15, 2008, Republic L.L.C. assigned 100% of its 

working interest in HI 115 to Republic L.P., removing Republic L.L.C. from any 

ownership interest in HI 115. (52 RR Defs.’ Ex. 0915-0079, item F); (52 RR 

Defs.’ Ex. 926); (4 RR 31); (CR 504). 

2. Effective May 11, 2007, by various assignments, Republic L.P. 

acquired all ownership interest previously held by Republic L.L.C. (52 RR Defs.’ 

Ex. 927); (52 RR Defs.’ Ex. 0915-0079, item G); (4 RR 44-45, 47, 51-52). 

3. The damages sought by Republic L.L.C. did not begin to accrue until 

July 3, 2008. (9 RR Pls.’ Ex. 39-143). 

4. Should Republic L.L.C. be awarded damages through October 15, 

2008, the damage award should be rendered in the amount of $32,971.73 (23.75% 

of $138,828.35, the damages incurred through October 15, 2008). (52 RR Defs.' 

Exs. 915-0069-0079 and 926); (9 RR Pls.’ Ex. 139-143); (CR 504). 

5. Republic L.L.C. presented the case as though it were seeking 100% of 

the damages. (5 RR 137-138). 

Thus, these facts are uncontroverted. See Tex. R. App. P. 38.1(g) (“The 

court will accept as true the facts stated unless another party contradicts them.”) 

See also, Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916, 923 n.7 (Tex. 

App. - Houston [14th Dist.] 2014, no pet.).
2 

SUMMARY OF ARGUMENT 

I. Republic L.L.C. had no standing and/or capacity to sue or recover 

damages 

The undisputed facts establish that Republic L.L.C. did not have standing 

and/or capacity to sue or recover damages as it had no ownership in the HI 115 

Well effective May 11, 2007, and did not file suit as operator or on behalf of the 

other HI 115 owners.1

 Republic L.L.C.’s efforts to establish otherwise fail. 

A. Privity of contract 

Republic L.L.C. argues that it has standing because it was in privity of 

contract with the Defendants. Privity of contract, however, does not equate with 

standing. 

B. Standing and capacity 

Republic L.L.C. argues that it had standing and capacity by virtue of the HI 

115 OOA and references one portion of the record in support of same. However, 

the cited reference actually reflects that effective July 16, 2010, Rooster Petroleum 

L.L.C. (“Rooster”) became the operator of the HI 115 Well. (52 RR Defs.’ Ex. 

 

1 Republic L.L.C. argues in point II that this Court should not reverse and render a Final 

Judgment that Republic L.L.C. be awarded zero damages or, alternatively, $32,971.73, because 

Defendants did not meet “any of the standards of review available to them.” Brief, p. 36. In 

support of this argument, Republic L.L.C. sets forth inapplicable standards of review, states that 

because Defendants filed a motion for new trial, “the filing of a motion to modify judgment was 

improper”, Id., citing no legal authority for such a proposition, and that it was “inexplicably 

unfair and fundamentally erroneous for the trial court to grant Defendants’ Motion to Modify 

Judgment.” Id. Defendants previously addressed each of these arguments in its Appellants’ 

Brief as well as in their Appellees’ Brief, and incorporate the arguments herein by reference. 

Defendants note, however, that the uncontroverted facts set forth in the Statement of Facts alone 

establish that a take-nothing judgment should be entered by this Court.
3 

915-0094). Republic L.L.C was not the operator when suit was filed and has no 

capacity or standing to sue or recover damages as such. 

Republic L.L.C.’s reliance on the testimony of Scott Stanford (“Stanford”) 

in support of its standing and capacity arguments is misplaced. The testimony 

presented was in a bill of exception which the district court ruled inadmissible. 

C. Rule 93 verifications 

Republic L.L.C. complains that although Defendants filed verified denials 

regarding capacity, such verifications were insufficient because Defendants did not 

allege the bases of personal knowledge. While Defendants’ verifications were 

sufficient, Defendants could have utilized unsworn declarations in which the bases 

of personal knowledge is not required. Moreover, an objection regarding lack of 

personal knowledge must be lodged at the district court level and a ruling obtained, 

which Republic L.L.C. failed to do and waived the complaint. 

D. Republic L.L.C.’s working interest 

Republic L.L.C. argues for the first time that the PHA “does not concern the 

working interest ownership of the [HI 115 Well]” and thus its working interest 

(ownership share) is “irrelevant” to the dispute. Were this new and novel 

argument accepted, hundreds of years of case law regarding the need for ownership 

to recover damages would be turned on its head. 
4 

Aside from these issues, Republic L.L.C. entered into the PHA as the 

“owner” of the HI 115 Well and the terms of the HI 115 OOA establish that 

expenses and revenue (and thus, damages) derived from the production of gas from 

the HI 115 Well were allocated based upon the working interest ownership. The 

PHA and ownership are relevant and inextricably entwined. 

E. The Charge 

Lastly, Republic L.L.C. argues that since Defendants “make no claim of 

charge error”, Defendants’ “capacity challenge can have no merit.” Brief, p. 25-

26. While Republic L.L.C.’s argument is unclear, Defendants are not required to 

allege charge error as they are claiming that the district court erred, inter alia, in 

denying Defendants’ JNOV and Motion to Modify Judgment. Even if Defendants 

were required to assert charge error, their complaints were not waived as 1) 

Defendants’ objected to Republic L.L.C.’s questions, 2) Defendants properly filed 

verified denials which shifted the burden to Republic L.L.C. to obtain a jury 

finding on the issue, 3) the district court held as a matter of law that Republic 

L.L.C. did not file suit as operator or in any representative capacity thus the issue 

should not be submitted to the jury, 4) standing and capacity are legal issues which 

should not be submitted to the jury, and 5) Defendants properly preserved error by 

objecting to the questions, filing a Motion for Directed Verdict, JNOV, Motion for 

New Trial and Motion to Modify Judgment. 
5 

The Modified Final Judgment should be reversed and rendered that Republic 

L.L.C. take-nothing, or, alternatively, that Republic L.L.C.’s damages are limited 

to $32,971.73 and attorney’s fees through trial of $125,000. 

ARGUMENT 

I. Privity of contract does not equate with standing 

Republic L.L.C. argues that since it was a signatory to the PHA, privity of 

contract existed which “provides a party with standing to maintain a suit on the 

contract.” Brief, p. 10. However, the case cited by Republic L.L.C. for this 

proposition, Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605, 618 

(Tex. 2004), actually states that “...our recognition of pass-through claims does not 

run afoul of our long-held tradition of requiring privity of contract and standing for 

a party to maintain suit.” (Emphasis added.) The only other case cited by 

Republic L.L.C. for this proposition does not mention standing, only privity of 

contract. Republic National Bank of Dallas v. National Bankers Life Ins. Co, 427 

S.W.2d 76, 79 (Tex. Civ. App. - Dallas 1968, writ ref’d n.r.e.). 

While Republic L.L.C. was in privity of contract with Defendants, it did not 

have standing as standing limits subject matter jurisdiction to cases involving a 

distinct injury to the plaintiff. See Texas Workers' Compensation Comm'n v. 

Garcia, 893 S.W.2d 504, 517–18 (Tex. 1995). See also State Bar v. Gomez, 891 

S.W.2d 243, 245 (Tex. 1994). Republic L.L.C. has no distinct injury since it had 
6 

no working interest ownership in the HI 115 Well.2

 Nauslar v. Coors Brewing 

Co., 170 S.W.3d 242, 252 (Tex. App. - Dallas 2005, no pet.) (“[Plaintiff] asserts 

standing in its roles as former general partner of Willow's general partner and 

former limited partner of Willow. [...] [Plaintiff] sold...the entirety of its interest 

in Willow. None of the cases it cites stands for the proposition that a partner that 

has sold its entire interest in the partnership can personally recover on a claim 

belonging to that partnership.”) (Emphasis in original); Webb v. Voga, 316 S.W.3d 

809, 815 (Tex. App. - Dallas 2010, no pet.) (“The evidence shows Webb was not a 

property owner. We conclude that Webb lacked standing for her causes of action 

...and, therefore, the trial court lacked subject matter jurisdiction over those causes 

of action.”) 

II. The HI 115 OOA did not give Republic L.L.C. capacity to sue or 

recover damages 

Republic L.L.C. argues that it had capacity to sue as operator under the HI 

115 OOA. Even if this were true, which it is not, the district court ruled that 

Republic L.L.C. did not bring suit as the operator. (CR 1055) (5 RR 138) 

Moreover, Republic L.L.C.’s request for a trial amendment to remedy its lack of 

 

2 Republic L.L.C. also alleges that it established standing because Defendants did not 

assert that other parties should be joined to the lawsuit and that Defendants made judicial 

admissions. Defendants addressed these allegations in their Response to Republic L.L.C’s 

Appellant’s Brief and incorporate the arguments herein.
7 

capacity was denied.3

 (CR 1056) (6 RR 119). 

Further, Republic L.L.C. was not the operator when the lawsuit was filed, 

contrary to its statement to this Court that “[e]ffective July, 16, 2010, the [OOA] 

was again amended... However, Republic remained the designated Operator under 

the [OOA].” Brief, p. 17. The cite to which Republic L.L.C. refers actually states: 

III. The operator for the Lease shall be: 

Rooster Petroleum, LLC 

(52 RR Defs.’ Ex. 915-0094). When suit was filed on December 9, 2010, Republic 

L.L.C. could not have brought claims in the capacity of operator since that position 

was held by Rooster. (4 RR 58). 

 Republic L.L.C. also cites inadmissible testimony for the proposition that 

“any recovery in the lawsuit will be split out to the non-operating working interest 

partners.” Brief, p. 16. This testimony was obtained while Republic L.L.C. was 

making its bill of exception and was ruled as inadmissible by the district court. 

(5 RR 113-138). A portion of the objection and bill of exception follows: 

Q. Was it the understanding of your partners... that this provision authorized 

Republic Petroleum, LLC, to prosecute the litigation? 

MR. DELUCA: Objection, Your Honor. May we approach. 

THE COURT: Okay. 

 

3 Republic L.L.C. does not challenge the district court’s denial of leave to file a trial 

amendment on appeal. 
8 

(Bench discussion...) 

MR. DELUCA: Republic Petroleum, LLC, and Republic Petroleum 

Partners, LP, brought this case in their individual capacity. They did not 

bring it as an operator.... [T]he PHA names Republic Petroleum, LLC, as, 

quote, Producer, not Operator. 

THE COURT: What part am I missing here? 

MR. DELUCA: They didn't bring it on behalf of everybody else. They only 

brought it on behalf of themselves. 

...... 

MR. DELUCA: For their own damages, not all the partners. 

THE COURT: Is that what your trying to do? 

MR. BATTAGLINI: That's what our pleading says. 

BILL OF EXCEPTIONS 

BY MR. BATTAGLINI 

Q. Mr. Stanford, is it true that the damages that were calculated in this case 

are 100 percent damages? 

A. They are. 

Q. Is it true, when you brought this lawsuit, you brought it on behalf of 100 

percent of the gas stream owners? 

A. Yes, I did. (5 RR 113-138). 

The district court ruled the testimony inadmissible, stating, “I don’t see anything in 

it [Plaintiffs’ Fourth Amended Petition] that indicates that it was brought in any 

kind of representative capacity or was seeking to recover damage on behalf of 
9 

anybody other than the Republic entities. That’s my ruling.”

4

 (5 RR 113-138). 

No evidence or admissible testimony supports Republic L.L.C.’s contention that 

the HI 115 OOA conferred capacity to bring suit. 

III. Defendants’ rule 93 verifications were sufficient 

Republic L.L.C. admits that Defendants filed verified denials disputing 

Republic L.L.C.’s capacity to sue or recover damages, but contends that such 

verifications were defective because they did not set forth the bases of personal 

knowledge. Brief, p. 19. Republic L.L.C. cites a few cases dealing with the need 

for personal knowledge in an affidavit supporting a summary judgment, but no 

cases dealing with such a requirement for a verified denial. Nonetheless, 

Defendants’ verifications are not deficient. (CR 687) (CR 701). In fact, the 

verifications 1) specifically recite personal knowledge, 2) reference the paragraphs 

in the Answers to which they refer, and 3) the referenced paragraphs set forth the 

public documents which indicate Republic L.L.C.’s lack of capacity including the 

fact that Rooster was the operator at the time suit was filed. (CR 650-651) (CR 

697-98). 

 

4 Republic L.L.C.’s contention that the language in the OOA permitting the operator to 

“supervise the handling, conduct and prosecution of all Claims involving activities or 

operations” somehow “authorized Republic to prosecute the lawsuit” is belied by the fact that 

Republic L.L.C. was not the operator when suit was filed and by the terms of the OOA itself 

which require consent of the other working interest owners as fully addressed by Defendants in 

their Response to Republic L.L.C’s Appellant’s Brief which is incorporated herein.
10 

 Furthermore, Defendants did not have to file a verification setting forth 

personal knowledge inasmuch as an unsworn declaration is sufficient. See Tex. 

Civ. Prac. & Rem. Code §132.001. See also, 2 McDonald & Carlson Tex. Civ. 

Prac. § 7:21 (2d. ed.) (“Under Rule 93,...[i]n lieu of [a] ... verification ...a litigant 

may use an unsworn declaration.”) 

Lastly, “an objection that an affidavit is not based on personal knowledge is 

an objection to a defect in form. Cooper v. Circle Ten Council Boy Scouts of 

America, 254 S.W.3d 689 (Tex. App. - Dallas 2008, no pet.). As a prerequisite to 

presenting a complaint for appellate review, such an objection must be timely and 

specifically raised, and a ruling obtained.” Mekeel v. U.S. Bank Nat. Ass'n, 355 

S.W.3d 349, 357 (Tex. App. - El Paso 2011, pet. dism'd) (citing Tex. R. App. P. 

33.1(a) [other citations omitted]). Republic L.L.C. did not object to the 

verifications at the district court level and thus waived any alleged error. 

IV. Republic L.L.C.’s working interest ownership is relevant 

Republic L.L.C. contends that its lawsuit “does not concern Republic’s 

working interest ownership in the Satellite Well, but instead concerns a breach of 

the PHA,” thus its working interest ownership is “irrelevant.” Brief, p. 22-23. 

Republic L.L.C. does not cite a single case for this proposition, nor does it 

distinguish the plethora of authority holding that an ownership interest is necessary 

to recover damages. 
11 

Moreover, the PHA would not exist without the HI 115 Well and the 

production there-from. Under the HI 115 OOA, the parties paid expenses and 

received revenues (including, logically, any damages) associated with production 

according to their participating interest (working interest ownership) as follows: 

Basis of Charge to the Parties. Subject to the other provisions of this 

Agreement, Operator shall pay all costs incurred under this Agreement, and 

each Party shall reimburse Operator in proportion to its Participating 

Interest. (18 RR Pls.’ Ex. 190-0008) 

Statements and Billings. Operator shall bill Non-Operators ... for their 

proportionate share of the Joint Account.... (42 RR Defs.’ Ex. 756-0286-

0287) 

"Joint Account" shall mean the account showing the charges paid and credits 

received in the conduct of the Joint Operations and which are to be shared 

by the Parties. (42 RR Defs.’ Ex. 756-0286) 

See also (46 RR Defs.’ Ex. 0773-2058 et seq.) (Invoices pertaining to production 

under the PHA setting forth charges and credits to the HI 115 working interest 

owners based upon their ownership interest). 

Contrary to Republic L.L.C.’s position, the case law is clear that without an 

ownership interest or suit in a representative capacity, there can be no standing 

and/or capacity. See Fuqua v. Taylor, 683 S.W.2d 735, 739 (Tex. App. - Dallas 

1984, writ ref’d n.r.e.) (“It would violate equitable principles to allow appellees, 

who owned but thirty-one percent of the working interest, to recover one hundred 

percent of the trust income.... [W]e remand ... for a determination of the amount 

of each individual appellee's recovery, to be calculated according to the percentage 
12 

of the entire working interest ... owned by each appellee.”); Denman v. SND 

Operating, L.L.C., No. 06-04-00061-CV, 2005 WL 2316177, at *8 (Tex. App. -

Texarkana Sept. 23, 2005, no pet.) (“The Denmans ... have standing to sue for 

discharges of hydrocarbons and for damages...during their ownership.”) 

(Emphasis added.) Republic L.L.C.’s lack of working interest ownership is not 

only relevant; it is determinative and establishes that a take-nothing judgment 

should be rendered. 

V. Defendants did not waive any points of error 

Republic L.L.C. alleges that since Defendants “make no claim of charge 

error” the Defendants “are bound by the charge on appeal” and “because the jury 

was not requested to consider damages in the context of Republic’s working 

interest ownership,” Defendants’ “capacity challenge can have no merit.”5

 Brief, 

p. 25-26. Although Republic L.L.C.’s allegation is unclear, and no cases are cited 

that are even peripherally on point, Defendants are not required to claim charge 

error as they contend that the district court erred, inter alia, in denying Defendants’ 

JNOV and Motion to Modify Judgment. Even if Defendants had to claim charge 

error, they did not waive any complaints. 

 

5 Republic L.L.C. fails to note that it has no pleading to support a 100% damage award 

and that if the Modified Judgment is not reversed and rendered, damages will be awarded to nonparties. These issues were preserved for appeal as well and not addressed by Republic L.L.C. 
13 

To the extent Republic L.L.C. suggests that it was incumbent upon 

Defendants to submit a damage question to preserve Defendants’ capacity 

complaint on appeal,6

 Brief, p. 25-26, Republic L.L.C. is mistaken for many 

reasons.7

First, the issue of Republic L.L.C.’s working interest ownership relates to 

standing, not capacity. See Shipley v. Unifund CCR Partners, 331 S.W.3d 27, 29 

(Tex. App. - Waco 2010, no pet.) (“We find that without evidence of any 

ownership interest or title in the account that Unifund CCR Partners does not have

standing to bring this suit and that the trial court did not have subject matter 

jurisdiction over the action.”); Denman, No. 06-04-00061-CV, 2005 WL 2316177, 

at *8 (Accord). Moreover, “standing is a component of subject matter jurisdiction 

and can never be waived.” John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 

S.W.3d 645, 650-51 (Tex. App. - Dallas 2013, pet. denied) (citing Austin Nursing 

Ctr. Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005)). 

Second, even if ownership is a capacity issue, Defendants properly filed 

verified denials. As such, the burden shifted to Republic L.L.C. to obtain a jury 

 

6 Incredibly, Republic L.L.C. argues the opposite position on page 26 of its Brief stating 

that “standing and capacity are legal questions which ... should not have been argued to the jury” 

and on page 34 that “because Defendants do not challenge the jury charge, the sufficiency of the 

evidence must be reviewed in light of the charge submitted.” 

7 Defendants also objected to the submission of the damage question on the bases of 1) no 

evidence of damages due to the fact that Republic L.L.C. did not own an interest in the HI 115 

Well, 2) lack of standing, and 3) lack of capacity. (7 RR 81-83) (7 RR 86-87). All objections 

were overruled. (7 RR 77-87). 
14 

finding on the issue as stated in Damian v. Bell Helicopter Textron, Inc., 352 

S.W.3d 124, 141 (Tex. App. - Fort Worth 2011, pet. struck): 

[I]f a verified denial is filed, the issue of the plaintiff's capacity to sue is 

controverted, and the plaintiff bears the burden of proving at trial that he is 

entitled to recover in the capacity in which he has filed suit. As the party 

with the burden of proof then, it is incumbent upon the plaintiff to obtain 

a jury finding on this particular issue. 

(Emphasis added.) 

Third, prior to submission of the case to the jury, the district court held as a 

matter of law that Republic L.L.C. did not file suit as operator or in any 

representative capacity, and denied the request for leave to file a Fifth Amended 

Petition. (5 RR 128); (6 RR 119). As such, the issue of capacity was already 

decided and Defendants did not waive any complaint. See Byrd v. Estate of Nelms, 

154 S.W.3d 149, 160 (Tex. App. - Waco 2004, pet. denied) (“Any question 

concerning the Nelms Partnership's capacity to sue was determined by the trial 

court as a matter of law .... Issues of capacity to sue are questions of law. Mayhew 

v. Town of Sunnyvale, 964 S.W.2d 922, 928–29 (Tex. 1998). Issues found as a 

matter of law should not be submitted to the jury. Star Enterprise v. Marze, 61 

S.W.3d 449, 459 (Tex. App. - San Antonio 2001, pet. denied) (citing T.O. Stanley 

Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222–23 (Tex.1992)).” 

The lack of Republic L.L.C.’s working interest was also established as a 

matter of law and not controverted by Republic L.L.C. either in the district court or 
15 

on appeal. A fact issue that is established with uncontroverted evidence and is not 

in dispute should not be submitted to the jury. Bank of El Paso, 847 S.W.2d at 

223. 

Fourth, as admitted by Republic L.L.C. in its brief, standing and capacity 

should not be submitted to the jury. Rhey v. Redic, 408 S.W.3d 440, 463 (Tex. 

App. - El Paso 2013, no pet.) (“To the extent Rhey's argument is related to the 

standing and capacity ..., both issues are legal questions which would not be 

submitted to the jury.”) Brief, p. 26. 

Lastly, Defendants properly preserved error by objecting to the damage 

question (7 RR 81-83) (7 RR 86-87), filing a Motion for Directed Verdict (CR 

841-846) (6 RR 5), JNOV (CR 888-903) and a Motion for New Trial (CR 1122-

1150). See United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. 

App. - Houston [14th Dist.] 2000, pet. denied) (citing Cecil v. Smith, 804 S.W.2d 

509, 510–11 (Tex. 1991)). (“To preserve a no evidence or matter of law point for 

appeal, a party must raise the issue through one of the following: (1) a motion for 

directed verdict, (2) a motion for JNOV, (3) an objection to the submission of the 

question to the jury, (4) a motion to disregard the jury's answer to a vital fact 

question, or (45) a motion for new trial.”) Moreover, Defendants filed a Motion to 

Modify Judgment (CR 1050-1070) and “[m]otions to modify preserve error for 

appellate review of an erroneous damage award in a judgment.” Solares v. 
16 

Solares, 232 S.W.3d 873, 881 (Tex. App. - Dallas 2007, no pet.) (citing, Harmon 

v. 1401 Elm Street Condominium Ass'n, 139 S.W.3d 411, 416–17 (Tex. App. - 

Dallas 2004, no pet.)). 

 PRAYER 

Defendants Dynamic and W&T Offshore pray that the Court of Appeals 

reverse and render judgment that Republic L.L.C. takes nothing, or alternatively 

that Republic L.L.C. be awarded damages of $32,971.73 and attorney’s fees 

through trial of $125,000. Defendants also pray for such other relief to which they 

may be justly entitled.

APPENDIX 

1. Attachment to the HI 115 OOA indicating that the operator for the lease 

effective July 16, 2010 is Rooster Petroleum, LLC (52 RR Defs.’ Ex. 

915-0094) 

2. Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014) 

3. Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005) 

4. Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010) 

 Respectfully submitted, 

 

 GIEGER, LABORDE & LAPEROUSE, 

 L.L.C. 

KENNETH H. LABORDE 

 Texas State Bar No. 11786070 

 klaborde@glllaw.com 

 DANIEL G. RAUH 

 drauh@glllaw.com 

Louisiana State Bar No. 27280 
17 

(Pro Hac Vice) 

CHARLOTTE A. FIELDS 

 cfields@glllaw.com 

Texas State Bar No. 24032175 

 Gieger, Laborde & Laperouse, 

 1177 West Loop South, Suite 750 

 Houston, Texas 77027 

 Telephone: (832) 255-6000 

 Facsimile: (832) 255-6001 

 

COUNSEL FOR DEFENDANT 

DYNAMIC OFFSHORE RESOURCES NS, 

 

- AND- 

 

 JOHNSON DELUCA KURISKY & 

 GOULD 

A Professional Corporation 

BRADLEY L. DELUCA 

bdeluca@jdkglaw.com 

Texas Bar No. 05653800 

BRIGID D. ASHCRAFT 

bashcraft@jdkglaw.com

Texas Bar No. 09193167 

4 Houston Center 

1221 Lamar, Suite 1000 

Houston, Texas 77010 

(713) 652-2525 – Telephone 

(713) 652-5130 – Facsimile 

COUNSEL FOR DEFENDANT 

W&T OFFSHORE, INC., successor by 

merger of OFFSHORE SHELF, L.L.C. 
18 

CERTIFICATE OF COMPLIANCE 

As required by Rule 9.4, Texas Rules of Appellate Procedure, the 

undersigned certifies that this brief contains 3814 words, exclusive of the portions 

described in Rule 9.4(i)(1). 

/s/ Kenneth H. Laborde

 Kenneth H. Laborde 

/s/ Bradley L. DeLuca

 Bradley L. DeLuca 

CERTIFICATE OF SERVICE 

 I hereby certify that on April 13, 2015, the Reply Brief of Cross-Appellants 

Dynamic Offshore Resources NS and W&T Offshore, Inc. Successor By Merger of 

Offshore Shelf was electronically filed with the Clerk of Court for The First Court 

of Appeals by using the EFSP-EFM System. Participants in this case who are 

registered EFSP-EFM System users will be served electronically by the EFSPEFM System. Other participants will be served by e-mail in accordance with TEX.

R. APP. P. 9.5(e). 

KB BATTAGLINI 

Texas State Bar No. 01918060 

kbattaglini@strongpipkin.com 

JOHN G. BISSELL 

 Texas State Bar No. 02356000 

jbissell@strongpipkin.com 

Strong Pipkin Bissell & Ledyard, L.L.P. 

4900 Woodway Drive, Suite 1200 

Houston, Texas 77056 

Telephone: (713) 651-1900 

Facsimile: (713) 651-1920 

Counsel for Plaintiffs/Appellants Republic Petroleum, and Republic 

 Petroleum Partners, L.P. 

 
19 

 

KENNETH H. LABORDE 

Texas State Bar No. 11786070 

klaborde@glllaw.com 

DANIEL G. RAUH 

Louisiana State Bar No. 27280 (PHV) 

drauh@glllaw.com 

CHARLOTTE A. FIELDS 

Texas State Bar No. 24032175 

cfields@glllaw.com 

Gieger, Laborde & Laperouse, 

1177 West Loop South, Suite 750 

Houston, Texas 77027 

Telephone: (832) 255-6000 

Facsimile: (832) 255-6001 

Counsel for Defendant/Cross-Appellant Dynamic Offshore Resources 

 NS 

 /s/ Kenneth H. Laborde

 Kenneth H. Laborde 

JOHNSON DELUCA KURISKY & 

 GOULD 

A Professional Corporation 

BRADLEY L. DELUCA 

bdeluca@jdkglaw.com 

Texas Bar No. 05653800 

BRIGID D. ASHCRAFT 

bashcraft@jdkglaw.com

Texas Bar No. 09193167 

4 Houston Center 

1221 Lamar, Suite 1000 

Houston, Texas 77010 

(713) 652-2525 – Telephone 

(713) 652-5130 – Facsimile 

Counsel for Defendant W&T Offshore, Inc., Successor by Merger of 

Offshore Shelf, L.L.C. 

 /s/ Bradley L. DeLuca

 Bradley L. DeLuca 
L. Pipeline Ownership in Segment#17167 (OC8-G 28359): 

WI 

Rooster Oil & Gas, LLC 23.00000% 

PROBE HIGH ISLAND ll5 LID. 18.54486% 

PROBE RESOURCES US LID. 30.95514% 

Republic Petroleum Partners, LP 19.10000% 

Sierra Pine Resources International, Inc. 00.62500% 

DBL Oil & Gas, LLC 00.62500% 

100.00000% 

ID. The Operator for the Lease shall be: 

Rooster Petroleum, LLC 

IV. Notification addresses and titles of the designed representatives are as follows: 

Republic Petroleum, LLC 

2425 West Loop South, Suite. 200 

Houston, Texas 77027 

Attn: Scott Stanford 

Telephone: (713) 297-9180 

Fax: (713) 297-8864 

Email: sstanford@•:omcast.net 

Sierra Pine Resou.rces International, Inc. 

110 Cypress Station Drive, #155 

Houston, Texas 77090 · 

Attn: Bruce Ganer 

Telephone: (713) :197-8864 

Fax: (713) 297-8864 

Email: BLGaner@aol.com 

PROBEIDGHlSLAND 115 LTD. 

24 Waterway, Suite 1450 

The Woodlands, Texas 77380 

Attn: Roger B. Souders 

Telephone: (281) 210-II 73 

Fax: (281)210-1193 

Email: rsouders@probe-resources.com 

Rooster Oil & Gas, LLC 

16285 Park Ten Place, Suite 120 

Houston, Texas 77084 

Attn: Kenneth F. Tamp lain, Jr. 

Telephone: (713) 574-7558 

Fax: (832) 772-6314 

Email: ktamplain@roosternetroleum.com 

DBL Oil & Gas, LLC 

8427 E. Copper Village Dr. 

Houston, Texas 77095 

Attn: Tod Dan:ey 

Telephone: (281) 728-8894 

Email: tdarcey@darceyoifandgas.com 

V, Permitted Encumbrances: 

Blue Dolphin Petroleum Company 

801 Travis, Suite 2100 

Houston, Texas 77002 

Attn: Ivar Siem 

Telephone: (713) 568-4730 

Fax: (713) 227-7626 

Email: ivar.siem@blue-dolphin.com 

PROBE RESOURCES US LTD. 

24 Waterway, Suite 1450 

The Woodtimds, Texas 77380 

Attn: Roger B. Souders 

Telephone: (281) 210-1173 

Fax: (281) 210-1193 

Email:rsouders@probe-resources.com 

Republic Petroleum Partners, LP 

2425 West Loop South, Suite 200 

Housto~ Texas 77027 

Attn: Scott Stanford 

Telephone: (713) 297-9180 

Fax: (713) 297-8864 

Email: ssstanford@comca.st.net 

Rooster Petroleum, LLC 

16285 Park Ten Place, Suite 120 

Houston, Texas 77084 

Attn; Kenneth F. Tamp lain, Jr. 

Telephone: (713) 574-7558 

Fax: (832) 772-6314 

Email: ktamplain@roostemetroleum.com 

A. A I% of 8/Sths overriding royalty interest in favor of Leopard Energy and 

Trading, Inc. (Leopard ORR!), specifically limited to production from the High 

Island 115, B-1 STI completion in the Lower Cris R Forn1ation found at a depth 

of !6,862' measured depth, only per the Bonding Support Agreement dated 

August 11, 2006 by and between Republic Petroleum, LLC and Leopard Energy 

and Trading, Inc. (This burden affects all parties llllder this Operating 

Agreement). 

ffi 115 Exhibit ,. A" to Second Amendment to OOA 

Page 4 

DEFENDANTS' TRIAL EXHIBIT 

0915-0094 
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

451 S.W.3d 916

Court of Appeals of Texas,

Houston (14th Dist.

Jamie Genender and Critter Stuff, LLC, Appellants

v.

USA Store Fixtures, LLC, Appellee

NO. 14–14–00048–CV | Opinion filed December 23, 

2014.

Synopsis

Background: Seller filed petition against buyer and 

buyer’s owner, arising out of reversal of charge on 

buyer’s credit card for payment of used shelving 

purchased from seller. The Justice Court entered 

take-nothing judgment against seller, and seller appealed. 

Following trial de novo, the County Court at Law No. 1, 

Harris County, awarded seller damages in amount of 

$2,303.42, and attorney fees in amount of $38,000 for 

trial, $20,000 for appeal to Court of Appeals, and $20,000 

for appeal to Supreme Court. Buyer and owner appealed.

Holdings: The Court of Appeals, Sharon McCally, J., 

held that:

[1] county court had subject matter jurisdiction over claim 

for breach of contract;

[2] evidence supported jury’s finding that defendants 

breached contract to purchase shelving;

[3] seller’s written “quote” to buyer was not evidence of 

seller’s “presentment” to buyer of demand for payment on 

contract, as prerequisite to seller’s right to recover 

attorney fees on claim;

[4] notification to seller of reversal of charge on buyer’s 

credit card that was used to purchase shelving was not 

“presentment”;

[5] documents from seller’s merchant account provider 

reflecting communications between provider, buyer, and 

seller did not include presentment of demand for payment 

on contract;

[6] seller’s discovery responses did not constitute 

“presentment” of claim;

[7] settlement negotiations between buyer and seller did 

not constitute “presentment”;

[8] affidavit of seller’s attorney filed after jury reached 

verdict was not evidence of presentment; and

[9] once jury returned verdict on claim for breach of 

contract, trial court should not have reopened record to 

allow evidence on disputed issue of presentment.

Affirmed as modified.

West Headnotes (19)

[1] Justices of the Peace

Evidence

Seller of used shelving was presumed to have 

orally pleaded claim for breach of contract 

against buyer in justice court and, thus, county 

court had subject matter jurisdiction over claim 

in de novo trial; seller filed petitions in justice 

court against buyer and buyer’s owner asserting 

that defendants were legally indebted to it and 

that seller reserved right to plead further orally 

upon trial of matter, and buyer did not rebut 

presumption of oral pleading. Tex. R. Civ. P. 

525 (Repealed).

Cases that cite this headnote

[2] Justices of the Peace

Evidence

The presumption that a claim was orally pleaded 

in the justice court, for the purposes of 

determining whether the county court has 

subject matter jurisdiction over the claim upon a 

trial de novo, is rebuttable. Tex. R. Civ. P. 525 

(Repealed).

Cases that cite this headnote
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

[3] Justices of the Peace

Evidence

The lack of a notation as to an orally pleaded 

claim in the justice court’s docket does not rebut 

the presumption of oral pleading, for the 

purposes of determining whether the county 

court has subject matter jurisdiction over the 

claim upon trial de novo. Tex. R. Civ. P. 525 

(Repealed).

Cases that cite this headnote

[4] Consumer Credit

Credit Cards

Sales

Excuses for default or delay

Evidence supported jury’s finding that buyer 

and buyer’s owner failed to comply with 

agreement to purchase used shelving from seller, 

as required to support seller’s claim for breach 

of contract, arising out of buyer’s submission of 

dispute with credit card company that resulted in 

company reversing charge, where buyer agreed 

to purchase shelves, accepted shelves, and then 

refused to pay for shelves, and fact that credit 

card company reversed charge had no bearing 

on buyer’s legal obligation to pay for shelves. 

Tex. Bus. & C. Code § 2.607(a).

Cases that cite this headnote

[5] Costs

Contracts

“Presentment,” as a prerequisite to an award of 

attorney fees on a claim for breach of contract, 

is a demand or request for payment or 

performance of a contract, whether written or 

oral. Tex. Civ. Prac. & Rem. Code Ann. § 

38.001.

Cases that cite this headnote

[6] Costs

Contracts

No particular form of presentment of a demand 

for performance or payment of a contract, in 

order to recover attorney fees on a claim for 

breach of contract; however, merely filing suit 

for a breach of contract, by itself, does not 

constitute “presentment.” Tex. Civ. Prac. & 

Rem. Code Ann. § 38.001.

Cases that cite this headnote

[7] Costs

Form and requisites of application in general

Costs

Evidence as to items

The claimant bears the burden of both pleading 

and proving presentment of a demand for 

performance or payment on a contract, as a 

prerequisite to the recovery of attorney fees on a 

claim for breach of contract. Tex. Civ. Prac. & 

Rem. Code Ann. § 38.001.

Cases that cite this headnote

[8] Costs

Contracts

The purpose of the presentment requirement is 

to allow the party against whom the claim for 

breach of contract is asserted an opportunity to 

pay it or tender performance within 30 days 

after they have notice of the claim without 

incurring an obligation for attorney’s fees. Tex. 

Civ. Prac. & Rem. Code Ann. § 38.001.

Cases that cite this headnote
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

[9] Costs

Duties and proceedings of taxing officer

Generally, presentment of a claim for breach of 

contract, as a prerequisite to the recovery of 

attorney fees on the claim, is an issue of fact. 

Tex. Civ. Prac. & Rem. Code Ann. § 38.001.

Cases that cite this headnote

[10] Costs

Duties and proceedings of taxing officer

When the issue of the amount of attorney’s fees 

is found by the jury without a request for a jury 

finding on the issue of presentment of demand 

for payment or performance of the contract to 

the defendant, presentment is deemed found. 

Tex. Civ. Prac. & Rem. Code Ann. § 38.001; 

Tex. R. Civ. P. 279.

Cases that cite this headnote

[11] Appeal and Error

Allowance or disallowance of costs and fees

An award of attorney’s fees on a claim for 

breach of contract must be reversed if there is no 

evidence of presentment of the demand for 

payment or performance of the contract. Tex. 

Civ. Prac. & Rem. Code Ann. § 38.001.

Cases that cite this headnote

[12] Costs

Vendor and purchaser; sales

Seller’s written “quote” to buyer on price for 

used shelving was not evidence of seller’s 

“presentment” to buyer of demand for payment 

on contract, as prerequisite to seller’s right to 

recover attorney fees on claim after buyer 

disputed charge for shelves on credit card with 

credit card company, resulting in reversal of 

charge, where quote was prepared several weeks 

before buyer agreed to purchase any shelving, 

before any contract was formed, and quote did 

not reflect parties’ actual agreement as to 

amount of shelving and cost of shipping. Tex. 

Civ. Prac. & Rem. Code Ann. § 38.001.

Cases that cite this headnote

[13] Costs

Evidence as to items

Evidence that the plaintiff sent an invoice to the 

defendant can satisfy a plaintiff’s burden to 

prove presentment of a demand for performance 

or payment on a contract, as a prerequisite to an 

award of attorney fees on a claim for breach of 

contract. Tex. Civ. Prac. & Rem. Code Ann. § 

38.001.

Cases that cite this headnote

[14] Costs

Vendor and purchaser; sales

Notification to seller of reversal of charge on 

buyer’s credit card that was used to purchase 

used shelves from seller was not “presentment”

by seller of demand to buyer for payment on 

contract to purchase shelves, as prerequisite to 

seller’s right to recover attorney fees on claim 

for breach of contract. Tex. Civ. Prac. & Rem. 

Code Ann. § 38.001.

Cases that cite this headnote

[15] Costs

Vendor and purchaser; sales

Documents from seller’s merchant account 

provider reflecting communications between 

provider, buyer, and seller contained no demand 

by seller for payment on contract to purchase 

used shelving, and thus, did not constitute 
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

“presentment” of claim, as prerequisite to 

seller’s right to recover attorney fees on claim 

against buyer for breach of contract. Tex. Civ. 

Prac. & Rem. Code Ann. § 38.001.

Cases that cite this headnote

[16] Costs

Vendor and purchaser; sales

Seller’s discovery responses did not constitute 

demand for payment on contract to purchase 

used shelving from seller, and thus, did not 

constitute “presentment” of claim, as 

prerequisite to recovering award of attorney fees 

on a claim for breach of contract against buyer. 

Tex. Civ. Prac. & Rem. Code Ann. § 38.001.

Cases that cite this headnote

[17] Costs

Vendor and purchaser; sales

Settlement negotiations between buyer and 

seller of used shelving with respect to buyer’s 

failure to pay for shelving did not constitute 

“presentment” of demand for payment on 

contract, as prerequisite to seller’s right to 

recover attorney fees on claim for breach of 

contract. Tex. Civ. Prac. & Rem. Code Ann. § 

38.001.

Cases that cite this headnote

[18] Costs

Contracts

Evidence that the parties to a contract 

participated in settlement negotiations, without 

more, is no evidence of “presentment” of a 

demand for payment or performance on the 

contract, as a prerequisite to the non-breaching 

party’s right to recover attorney fees on a claim 

for breach of contract, because it does not satisfy 

the purpose of the presentment requirement to 

provide the defendant with the opportunity, by 

undertaking specific action, to avoid paying 

attorney’s fees. Tex. Civ. Prac. & Rem. Code 

Ann. § 38.001.

Cases that cite this headnote

[19] Judgment

Basing motion on records of case

On used shelving buyer’s motion to disregard 

jury’s finding on issue of attorney’s fees and 

buyer’s amended motion for judgment 

notwithstanding verdict (JNOV), in seller’s 

breach of contract action, trial court improperly 

reopened evidence on a controverted matter 

when it considered affidavit submitted by 

seller’s attorney averring that he made demand 

for payment of invoice for shelving purchased 

by buyer to buyer’s counsel, where affidavit was 

filed after jury reached verdict, and motions and 

the affidavit concerned parties’ dispute as to 

whether seller had made presentment of its 

breach of contract claim, which was prerequisite 

to recovering attorney fees. Tex. Civ. Prac. & 

Rem. Code Ann. § 38.001; Tex. R. Civ. P. 270.

Cases that cite this headnote

*919 On Appeal from the County Civil Court at Law No. 

1, Harris County, Texas, Trial Court Cause No. 1016718. 

Debra I. Mayfield, Judge.

Attorneys and Law Firms

Cameron Weir, Jan Woodward Fox, Houston, TX, for 

Appellants.

Jerrad D. Bloome, Houston, TX, for Appellee.

Panel consists of Justices McCally, Brown, and Wise.
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

OPINION

Sharon McCally, Justice

Appellee USA Store Fixtures, LLC sued appellants Jamie 

Genender and her business Critter Stuff, LLC in justice 

court after Genender successfully obtained a chargeback 

on her credit card related to her purchase of $2,303.42 in 

used shelving from Store Fixtures. Store Fixtures 

appealed a take-nothing judgment from the justice court 

to the county court, which held a trial de novo. A jury 

awarded Store Fixtures damages of $2,303.42 and 

attorney’s fees of $38,000 for trial, $20,000 for an appeal 

to the court of appeals, and $20,000 for an appeal to the 

Supreme Court of Texas. In three issues, appellants 

contend the county court lacked jurisdiction over Store 

Fixtures’ breach of contract claim, the evidence is legally 

insufficient, and Store Fixtures is not entitled to attorney’s 

fees because it failed to plead and prove presentment of 

its claim.

We hold that the trial court had jurisdiction over Store 

Fixtures’ breach of contract claim and the evidence is 

legally sufficient to support the jury’s finding on that 

claim, but Store Fixtures failed to prove presentment. 

Accordingly, we modify the trial court’s judgment to 

delete the award of attorney’s fees and affirm the trial 

court’s judgment as modified.

I. BACKGROUND

Using a credit card, Genender purchased some used 

shelving from Store Fixtures for Genender’s business. 

Store Fixtures shipped the shelving to Genender in 

Wisconsin. But she was disappointed with the quantity 

and quality of the shelving she received and with Store 

Fixtures’ response to her concerns, so she filed a dispute 

with her credit card company that resulted in a 

chargeback to Store Fixtures. Store Fixtures sued 

appellants in justice court; all parties were pro se. After a 

bench trial, the justice court signed a take-nothing 

judgment in appellants’ favor, and Store Fixtures 

appealed to the county court. The parties hired attorneys 

and ultimately proceeded to a de novo jury trial with each 

side asserting claims for breach of contract and attorney’s 

fees.

The only issues submitted to the jury were whether any 

party failed to comply with the agreement, and if so, the 

amounts of damages and attorney’s fees. The jury found 

that appellants failed to comply with *920 the agreement, 

Store Fixtures did not fail to comply with the agreement, 

Store Fixtures suffered damages of $2,303.42, and Store 

Fixtures’ reasonable and necessary attorney’s fees were 

$38,000 for preparation and trial, $20,000 for an appeal to 

the court of appeals, and $20,000 for an appeal to the 

Supreme Court of Texas. The county court signed a final 

judgment consistent with the jury’s verdict. This appeal 

followed.

II. SUBJECT MATTER JURISDICTION

In their first issue, appellants contend the county court’s 

judgment is void because the county court lacked subject 

matter jurisdiction over the only claim and basis for 

attorney’s fees supporting the judgment. Appellants argue 

that Store Fixtures did not plead a breach of contract 

claim in the justice court, and Store Fixtures’ contract 

claim was a “new ground of recovery” pleaded for the 

first time on appeal to the county court. See Tex.R. Civ. P. 

574a, 50 Tex. B.J. 868 (1987, repealed 2013) (on appeal 

from justice court, “no new ground of recovery shall be 

set up by the plaintiff”).

Store Fixtures contends that it pleaded a breach of 

contract claim in the justice court because Store Fixtures 

reserved the right to plead orally and, at the justice court 

trial, Store Fixtures “sought to recover the total invoice 

amount under the theory that Genender and Critter Stuff 

had breached the contract by not paying for the shelving.”

First we will review the relevant proceedings and 

evidence in the record. Then we overrule appellant’s issue 

because appellants failed to rebut the presumption that 

Store Fixtures orally pleaded its breach of contract claim 

in the justice court.

A. Background and Evidence

Store Fixtures, acting through its president,1filed two 

petitions in justice court. The petition naming Genender 

as a defendant alleged as follows:

That the defendant is legally 

indebted to the plaintiff in the sum 

of $10,000.00 based upon the 

following facts: Defendant, Jaimie 

Michele Genender, purposefully 

intended to defraud USA Store 

Fixtures LLC from financial gain 

by refusing payment on her credit 

card. Defendant also acted outside 
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

of her title and personally defamed 

and slandered this company in 

writing. Invoice $2,303.42 damages 

for slander $7,697.58.

The petition naming Critter Stuff as a defendant alleged 

as follows:

That the defendant is legally 

indebted to the plaintiff in the sum 

of $10,000.00 based upon the 

following facts: Defendant, Jamie 

Michele Genender, purposefully 

intended to defraud USA Store 

Fixtures LLC from financial gain 

by refusing payment on her credit 

card. Defendant also slandered and 

defamed this company in writing. 

Invoice amount $2,303.42 plus 

damages for slander and 

defamation.

Both petitions stated, “THAT plaintiff reserves the right 

to plead further orally upon trail [sic] of this matter.” See

Tex.R. Civ. P. 525, 3 Tex. B.J. 607 (1940, repealed 2013) 

(in justice court, “[t]he pleadings shall be oral, except 

where otherwise specially provided”).

After Store Fixtures appealed to the county court and 

retained counsel, it filed an amended petition asserting 

claims for *921 breach of contract, negligent 

misrepresentation, fraud, fraud in the inducement, and 

quantum meruit. Store Fixtures also sought attorney’s 

fees. Appellants filed counterclaims for breach of contract 

and violations of the Deceptive Trade 

Practices—Consumer Protection Act (DTPA), Tex. Bus. 

& Com.Code Ann. subch. E. Appellants also sought 

attorney’s fees.

Store Fixtures filed a plea to the jurisdiction and motion 

to dismiss all of appellants’ counterclaims under former 

Rule 574a. The rule provided,

Either party may plead any new 

matter in the county or district 

court which was not presented in 

the court below, but no new ground 

of recovery shall be set up by the 

plaintiff, nor shall any set-off or 

counterclaim be set up by the 

defendant which was not pleaded in 

the court below.

Tex. R Civ. P. 574a, 50 Tex. B.J. 868 (1987, repealed 

2013). Store Fixtures alleged dismissal was the proper 

remedy because the county court lacked subject matter 

jurisdiction over appellants’ newly pleaded 

counterclaims.2 Appellants responded that severance was 

the proper remedy3and also requested severance of Store 

Fixtures’ newly pleaded claims of breach of contract, 

quantum meruit, fraudulent inducement, and negligent 

misrepresentation. The county court granted partial relief 

to both sides, ordering severance of Store Fixtures’ 

negligent misrepresentation claim and appellants’ DTPA 

claim. At the de novo trial, only the contract claims were 

tried, along with the amounts of attorney’s fees.

B. Analysis

[1]Regardless of whether Store Fixtures alleged a breach 

of contract claim in its written petitions in justice court, 

the law recognizes a presumption that Store Fixtures 

orally pleaded its breach of contract claim in justice court. 

See Gordon v. Zoes, 125 S.W.2d 1049, 1049–50 

(Tex.Civ.App.—Galveston 1939, no writ) (holding that 

the county court’s judgment was not void based on an 

allegation that the plaintiff brought a new cause of action 

not pleaded in justice court; “While plaintiff filed certain 

written pleadings in the justice court, he expressly 

reserved the right in said pleadings to plead orally on the 

trial of the case. It is uniformly held in this State that in 

cases originating in the justice court, pleadings may be 

either oral or written, or partly oral and partly written. In 

the absence of a showing to the contrary, it will be 

presumed that said written pleadings were supplemented 

by such oral amendments as cured any defects therein, 

and that such pleadings as amended supported the 

judgment rendered by the trial court.”); Garcia v. Rendon,

59 S.W.2d 881, 881 (Tex.Civ.App.—San Antonio 1933, 

no writ) (“If the oral plea made by appellee was not 

pleaded in the justice’s court, appellant should have 

shown it. The mere fact that the justice of the peace did 

not note the oral pleadings *922 did not prove that they 

were not made.”).4 This presumption exists because the 

rules specifically require oral pleadings in the justice 

court. See Tex.R. Civ. P. 525, 3 Tex. B.J. 607 (1940, 

repealed 2013) (“The pleadings shall be oral ...”).5

[2]The presumption is rebuttable. See Gordon, 125 S.W.2d 

at 1049–50; Garcia, 59 S.W.2d at 881. For example, a 

statement regarding the oral pleadings may be noted on 

the justice court’s docket. See Tex.R. Civ. P. 525, 3 Tex. 

B.J. 607 (1940, repealed 2013) (“The pleadings shall be 

oral ... but a brief statement thereof may be noted on the 

docket ....”); see also Subcomm. on Interpretation of 

Rules of Civil Procedure, State Bar of Tex., Op. 27–a, 5 

B.J. 287 (1942) (noting that this statement may be 

necessary because “it may become important to show 
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

what the old pleadings were with ... contentions that a 

new cause of action has been set up for the first time in 

the county court”).

[3]The record here contains no such notation, but the lack 

of a notation does not rebut the presumption of oral 

pleading. See Gordon, 125 S.W.2d at 1049–50; Garcia,

59 S.W.2d at 881; Amarillo Commercial, 140 S.W. at 

378. Nor does the record contain any evidence that Store 

Fixtures did not orally plead a breach of contract claim in 

the justice court.6 Because appellants did not rebut the 

presumption of oral pleading, we presume that Store 

Fixtures orally pleaded a breach of contract claim in the 

justice court, and therefore, the claim was not a new 

ground of recovery in the county court.

Appellants’ first issue is overruled.

III. SUFFICIENCY OF THE EVIDENCE

[4]Appellants’ second issue is that “there is legally 

insufficient evidence that Jamie Genender or Critter Stuff 

breached any contractual duty to USA Store Fixtures.”

Appellants argue that there is no evidence to support the 

jury’s “yes” answer for each appellant in Jury Question 

No. 1, which asked, “Did Jamie Genender and/or Critter 

Stuff fail to comply with the agreement?” Thus, 

appellants challenge the “breach” element of Store 

Fixtures’ claim and contend that the claim “must be based 

entirely upon Genender’s action in submitting a dispute of 

the transaction *923 through the chargeback process 

established by her credit card company.”

Appellants contend that their “promise to pay was 

stipulated upon compliance with the Cardholder 

Agreement” because when Store Fixtures charged 

Genender’s credit card, Store Fixtures sent her an 

unsigned receipt (Defendant’s Exhibit No. 3), which 

states, “I agree to pay above total amount according to 

card issuer agreement. (Merchant Agreement if Credit 

Voucher).”

7 So, because it is undisputed that Store 

Fixtures lost the credit card dispute due to its “failure to 

comply” with its merchant account agreement, appellants 

claim they could not possibly have breached the contract 

for the sale of the shelving.8

Store Fixtures contends that there is evidence of 

appellants’ breach because they agreed to purchase goods, 

accepted the goods, and ultimately did not pay for the 

goods. We agree with Store Fixtures.

We find no authority, and appellants have cited none, to 

suggest that in general (or under any specific 

circumstances), a buyer has not breached a sale-of-goods 

contract as a matter of law when a credit card company 

reverses a charge in favor of the buyer at the buyer’s 

request. In fact, there is authority that a party’s obtaining 

a credit card chargeback does not erase liability for 

obligations owed. See CSL Prop. Mgmt. Co. v. 

Thyssenkrupp Elevator Co., No. 01–11–00665–CV, 2013 

WL 396252, at *2, *6 (Tex.App.—Houston [1st Dist.] 

Jan. 31, 2013, no pet.) (mem.op.) (upholding summary 

judgment for the plaintiff on its indemnity claim where 

the factual basis for part of the claim was the defendant’s 

failure to indemnify an amount reversed by a third party’s 

credit card company). Defendant’s Exhibit No. 3 does not 

conclusively establish that the parties agreed to resolve 

disputes solely under their credit card companies’ 

chargeback policies. To the extent there was an 

ambiguity, the jury resolved it in favor of Store Fixtures. 

See Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 

(Tex.1987) (ambiguity in contract creates question of fact 

for jury).9

Store Fixtures adduced evidence that it sent appellants the 

shelving Genender ordered, that appellants accepted the 

shelving, and that Genender initiated a chargeback on her 

credit card, resulting in appellants’ failures to pay for the 

goods accepted.10 A buyer’s failure to *924 pay the 

contract rate for goods accepted constitutes a breach of 

contract. See Tex. Bus. & Com.Code Ann. 2.607(a); see 

also Garden Ridge, L.P. v. Advance Int’l, Inc., 403 

S.W.3d 432, 445 (Tex.App.—Houston [14th Dist.] 2013, 

pet. denied) (proper to instruct the jury about what 

constitutes acceptance of goods and about “the UCC’s 

provision that the buyer must pay the contract rate for 

goods it accepts”).11 Accordingly, the evidence is legally 

sufficient to support the jury’s affirmative answer to Jury 

Question No. 1.

Appellants’ second issue is overruled.

IV. PRESENTMENT

In their third issue, appellants contend “the county court 

erred in submitting to the jury and entering judgment on 

[Store Fixtures’] attorney’s fee award because there are 

no pleadings or legally or factually sufficient evidence of 

timely presentment.” We agree with appellants that there 

is no evidence to support an implied finding that Store 

Fixtures presented its claim.

[5] [6]To recover attorney’s fees for a breach of contract 

claim under Section 38.001 of the Texas Civil Practice 
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

and Remedies Code,

(1) the claimant must be represented by an attorney;

(2) the claimant must present the claim to the opposing 

party or to a duly authorized agent of the opposing 

party; and

(3) payment for the just amount owed must not have 

been tendered before the expiration of the 30th day 

after the claim is presented.

Tex. Civ. Prac. & Rem.Code Ann. § 38.002. Presentment 

is a “demand or request for payment or performance, 

whether written or oral.” Gibson v. Cuellar, 440 S.W.3d 

150, 157 (Tex.App.—Houston [14th Dist.] 2013, no pet.)

(citing Jones v. Kelley, 614 S.W.2d 95, 100 (Tex.1981)). 

No particular form of presentment is required. Id.

However, merely filing suit for a breach of contract, by 

itself, does not constitute presentment. See Huff v. Fid. 

Union Life Ins. Co., 158 Tex. 433,312 S.W.2d 493, 500 

(1958) (addressing predecessor statute).12

[7] [8]The claimant bears the burden of both pleading and 

proving presentment. See, e.g., Gibson, 440 S.W.3d at 

157 (citing Ellis v. Waldrop, 656 S.W.2d 902, 905 

(Tex.1983)). “The purpose of the presentment 

requirement is to allow the party against whom the claim 

is asserted an opportunity to pay it or tender performance 

within 30 days after they have notice of the claim without 

incurring an obligation for attorney’s fees.” Id. (citing 

Jones, 614 S.W.2d at 100).13

[9]Generally, presentment is an issue of fact. See id. at 157 

n.7 (trial court’s *925 finding of presentment was a 

finding of fact, not a conclusion of law); see also France 

v. Am. Indem. Co., 648 S.W.2d 283, 286 (Tex.1983) (trial 

court erred to conclude that the plaintiff was not entitled 

to attorney’s fees when there was some evidence of 

presentment; “At the very least, a fact issue was raised 

here as to presentment.”); cf. Roylex, Inc. v. Avco Cmty. 

Developers, Inc., 559 S.W.2d 833, 838 

(Tex.Civ.App.—Houston [14th Dist.] 1977, no writ) 

(“Since the evidence on presentment was conclusive, that 

issue did not have to be submitted to the jury.”); Turner v. 

Lubbock Cnty. Hosp. Dist., No. 07–96–0272–CV, 1998 

WL 3554, at *5–6 (Tex.App.—Amarillo Jan. 6, 1998, no 

pet.) (not designated for publication) (finding reversible 

jury charge error because the issue of presentment 

“should have been submitted to the jury for 

determination” when the evidence was disputed).

[10] [11]When, as here, the issue of the amount of attorney’s 

fees is found by the jury without a request for a jury 

finding on the issue of presentment, Rule 279 of the 

Texas Rules of Civil Procedure operates so presentment is 

deemed found. See Adams v. Petrade Int’l, Inc., 754 

S.W.2d 696, 720 (Tex.App.—Houston [1st Dist.] 1988, 

writ denied) (deemed finding on presentment); Atkin v. 

Cobb, 663 S.W.2d 48, 53 (Tex.App.—San Antonio 1983, 

writ dism’d) (same). Appellants now challenge the 

sufficiency of the evidence to support the deemed finding. 

See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228–29 

(Tex.2011) (deemed findings may be reviewed for 

sufficiency of the evidence); see also Adams, 754 S.W.2d 

at 720 (legally sufficient evidence supported deemed 

finding on presentment).14

Store Fixtures contends that it proved presentment in a 

number of ways: (1) by sending appellants an invoice; (2) 

by making a demand for payment during the credit card 

dispute; (3) by providing appellants discovery responses 

showing a claim for breach of contract; and (4) by 

engaging in settlement negotiations and orally making a 

demand for payment during those negotiations. We 

address each contention in turn.

A. Invoice

[12] [13]Store Fixtures contends that Genender admitted to 

receiving an invoice *926 as well as having the credit 

card charge reversed, “thus constituting non-payment of 

the invoice.” Evidence that the plaintiff sent an invoice to 

the defendant can satisfy a plaintiff’s burden to prove 

presentment. See Gordon v. Leasman, 365 S.W.3d 109, 

116 (Tex.App.—Houston [1st Dist.] 2011, no pet.); 

Roylex, Inc., 559 S.W.2d at 838. But Store Fixtures cites 

to Plaintiff’s Exhibit No. 1, which is not an “invoice” but 

rather a “quote” dated April 18, 2011. It is undisputed that 

this quote was prepared several weeks before appellants 

agreed to purchase any shelving—before any contract was 

formed—and it did not reflect the parties’ actual 

agreement as to the amount of shelving and cost of 

shipping.

Because no contract then existed, Store Fixtures had no 

breach of contract claim against appellants, and there was 

no “just amount owed” to Store Fixtures. Accordingly, 

Plaintiff’s Exhibit No. 1 is not evidence of presentment as 

a matter of law. See Brainard v. Trinity Universal Ins. 

Co., 216 S.W.3d 809, 817–19 (Tex.2006) (plaintiff’s 

demand for underinsured motorist benefits made before a 

court signed a judgment on the motorist’s liability and 

damages was not evidence of presentment as a matter of 

law because at the time of the alleged presentment there 

was no contractual duty to pay; when there is no 

contractual duty to pay, there is no “just amount owed”

under Section 38.002; reasoning that a contract claim 

requires the existence of a duty or obligation that the 
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

opposing party has failed to meet); cf. McNeil v. BMC 

Software Inc., 306 Fed.Appx. 889, 894 (5th Cir.2009)

(employee’s request that employer promise to pay a bonus 

that had not yet accrued was not presentment as a matter 

of law; at the time of the request, there was no “just 

amount owed” and no “claim” to present; request for a 

party to meet its future contractual obligations is not a 

claim for a just amount owed).15

B. During the Credit Card Dispute

Store Fixtures contends that it presented its breach of 

contract claim by “inform[ing] the credit card company 

during the credit card dispute that it would seek legal 

action if the charges were reversed,” and by making a 

demand for payment “during the entire dispute.” Store 

Fixtures cites Defendant’s Exhibits Nos. 26 and 32.

[14]Defendant’s Exhibit No. 26 is a one-page document 

titled “chargeback notification” apparently sent from 

“merchant services” to Store Fixtures to notify Store 

Fixtures of the chargeback and explain what Store 

Fixtures could do to contest the chargeback. This 

document does not show a demand for payment from 

Store Fixtures.

[15]Defendant’s Exhibit No. 32 consists of about ninety 

pages of documents from Bank of America Merchant 

Services, Store Fixtures’ merchant account provider. 

Appellants had requested, among other things, any and all 

records reflecting “any communications by Chase, 

Merchant Services, *927 and/or the parties.” We have 

reviewed the exhibit. It contains no demand for payment 

from Store Fixtures.

C. Discovery Responses

[16]Store Fixtures contends that it presented its claim by 

providing appellants “discovery responses,” which 

“show[ed] Plaintiff’s claim for breach of contract, the 

basis of the claim and it[s] claim for damages.” Store 

Fixtures does not cite to the record for this assertion nor 

describe in any way how a demand for payment was made 

through its “discovery response.”

16

D. Settlement Negotiations

[17] [18]Finally, Store Fixtures contends that it orally 

presented its claim to appellants’ counsel during 

settlement negotiations. As evidence, Store Fixtures first 

cites to Plaintiff’s Exhibit No. 6, which consists of 

copious billing records from Store Fixtures’ lawyers. 

Store Fixtures refers to an entry for July 12, 2012: “confer 

with opposing counsel re: potential to resolve.” Evidence 

that the parties participated in settlement negotiations, 

without more, is no evidence of presentment. See Border 

Gateway, L.L.C. v. Gomez, No. 14–10–01266–CV, 2011 

WL 4361485, at *9 (Tex.App.—Houston [14th Dist.] 

Sept. 20, 2011, no pet.) (mem.op.). Such evidence is 

insufficient to prove presentment because it does not 

satisfy the purpose of the presentment requirement: to 

provide the defendant with “the opportunity, by 

undertaking specific action, to avoid paying attorney’s 

fees.” Belew v. Rector, 202 S.W.3d 849, 856–57 

(Tex.App.— Eastland 2006, no pet.) (evidence that 

counsel “had some settlement discussions” was 

insufficient).

[19]Next, Store Fixtures refers to an affidavit from its 

counsel, Jerrad Bloome, where he testified that he made a 

demand for payment of the invoice amount to appellants’

counsel on July 12, 2012. However, Store Fixtures filed 

this affidavit after the jury had reached a verdict, only in 

response to appellants’ motion to disregard the jury’s 

answer to Jury Question No. 5 concerning attorney’s fees. 

Appellants objected to the trial court’s consideration of 

the affidavit,17 but the trial court overruled the objection.

Although a trial court has discretion to permit additional 

evidence to be offered at any time, “in a jury case no 

evidence on a controversial matter shall be received after 

the verdict of the jury.” Tex.R. Civ. P. 270. Here, the 

issue of presentment was controverted. Appellants had 

pleaded in their answer that Store Fixtures failed to 

present its claim, and appellants objected during trial to 

the submission of Jury Question No. 5 because Store 

Fixtures had failed to offer any evidence of presentment. 

After the jury’s verdict, appellants filed a motion to 

disregard the jury’s finding on attorney’s fees and an 

amended JNOV on the issue because there was no 

evidence of presentment. At the hearing on the 

post-verdict motions, after the trial court had overruled 

appellants’ objection to the affidavit, the trial court 

allowed appellants to make a record about the lack of 

presentment. Counsel for appellants, *928 Jan Fox, 

testified that she had no records of any July 12 

conversation with Bloome, that it would have been her 

practice to document such a conversation, and that no 

such conversation occurred based on her records.18

Under these circumstances, the trial court abused its 

discretion by reopening the evidence on a controverted 

matter after dismissing the jury, and the trial court should 

have granted appellants’ motion to disregard the jury’s 

finding on the issue of attorney’s fees and entered 

judgment accordingly. See Helping Hands Home Care, 
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

Inc. v. Home Health of Tarrant Cnty., Inc., 393 S.W.3d 

492, 516–17 (Tex.App.—Dallas 2013, pet. denied) (trial 

court correctly granted JNOV on attorney’s fees and 

refused to reopen the case for evidence of presentment 

because “the evidence is insufficient to show Specialties 

met the procedural requirements for the award”); see also

Univ. of Tex. at Austin v. Ables, 914 S.W.2d 712, 718 

(Tex.App.—Austin 1996, no writ) (trial court abused its 

discretion under Rule 270 by considering evidence about 

the amount of attorney’s fees after the jury’s verdict; 

rendering take-nothing judgment on attorney’s fees), cited 

with approval in Hatfield v. Solomon, 316 S.W.3d 50, 67 

(Tex.App.—Houston [14th Dist.] 2010, no pet.).

Because there was no evidence before the jury to support 

a deemed finding that Store Fixtures presented its claim to 

appellants, we sustain appellants’ third issue.19

V. CONCLUSION

Appellant’s first and second issues are overruled, but 

appellants’ third issue is sustained. We modify the trial 

court’s judgment to delete the award of attorney’s 

fees—in particular, the following paragraph:

It is hereby ORDERED that Jamie 

Michele Genender and Critter 

Stuff, L.L.C., jointly and severally, 

pay to USA Store Fixtures the 

amount of $38,000, representing 

the reasonable and necessary 

attorneys’ fees in this case and a 

contingent award of attorneys’ fees 

in the amount of $20,000 if this 

case is appealed to the Court of 

Appeals, and $20,000 if this case is 

appealed to the Supreme Court of 

Texas.

We affirm the trial court’s judgment as modified.

Footnotes

1 See Tex. Gov’t Code Ann. 27.031(d) (“A corporation need not be represented by an attorney injustice court.”).

2 See Hatmaker v. Farmers Tex. Cnty. Mut. Ins. Co., No. 14–98–00552–CV, 1999 WL 459788, at *3 (Tex.App.—Houston [14th 

Dist.] July 8, 1999, no pet.) (not designated for publication); Kramek v. Stewart, 648 S.W.2d 399, 401–02 (Tex.App.—San 

Antonio 1983, no writ); Tex. Co. v. Henderson, 154 S.W.2d 911, 911 (Tex.Civ.App.—El Paso 1941, no writ); Racugno v. Hanovia 

Chem. & Mfg. Co., 110 S.W.2d 249, 250 (Tex.Civ.App.—Fort Worth 1937, no writ); see also Neal v. Beck Funeral Home, 131 

S.W.2d 778, 780–81 (Tex.Civ.App.—Fort Worth 1939, writ dism’d).

3 See New Wave Props., Inc. v. Wikoff, No. 13–11–00762–CV, 2012 WL 2929623, at *3 (Tex.App.—Corpus Christi July 19, 2012, 

no pet.) (mem.op.); Harrill v. A.J.’s Wrecker Servs., Inc., 27 S.W.3d 191, 195 (Tex.App.—Dallas 2000, pet. dism’d w.o.j.); D’Tel 

Commc’ns v. Roadway Package Serv., Inc., 987 S.W.2d 213, 214 (Tex.App.—Eastland 1999, no pet.).

4 See also Fort Worth & D.C Ry. Co. v. Brewer, 1 S.W.2d 686, 686 (Tex.Civ.App.—Amarillo 1928, no writ) (“If the record does not 

disclose that the written pleadings constituted the whole pleadings, it will be presumed that there were oral pleadings necessary to 

support the judgment.”); Amarillo Commercial Co. v. Chicago, R.I. & G. Ry. Co., 140 S.W. 377, 378 (Tex.Civ.App.—Amarillo 

1911, no writ) (“[If] no oral pleadings on the part of the plaintiff are noted on the docket, it will be presumed that there was some 

oral pleading by plaintiff at the time the account was filed, from which the justice received that information, and which he failed to 

note upon the docket.”).

5 Parties have pleaded orally in justice courts since the early days of the Republic, and the practice continued in early statehood. 

See, e.g., Act approved Nov. 4, 1837, 2d Cong., R.S., § 1, 1837 Repub. Tex. Laws 14, reprinted in 1 H.P.N. Gammel, The Laws of 

Texas 1822–1897, at 1356 (Austin, Gammel Book Co. 1898) (“[A]ll civil proceedings before justices of the peace, shall be had in a 

summary manner, and without the formality of a petition in writing....”); Act approved Aug. 13, 1870, 12th Leg., C.S., ch. 65, § 7, 

1870 Tex. Gen. Laws 87, 93, reprinted in 6 H.P.N. Gammel, supra, at 261, 267 (“The pleading in a justice’s court shall be 

oral....”).

6 In fact, in the first pleading filed in county court—appellants’ answer—appellants pleaded an “affirmative defense of failure of 

consideration,” thus indicating that Store Fixtures had previously pleaded a breach of contract claim. At the time, the only written 

pleadings Store Fixtures had filed were its justice court petitions.

7 Although some of these words on Defendants’ Exhibit No. 3 appear illegible, Store Fixtures’ does not contest appellants’

interpretation, so we accept as true this factual allegation. See Tex.R.App. P. 38.1(g) ( “In a civil case, the court will accept as true 
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

the facts stated unless another party contradicts them.”).

8 Appellants suggest this case has

enormous implications for consumers in Texas and across the country [because it] addresses an all-too-common occurrence 

but a novel legal question: whether a consumer who properly and successfully disputes a credit card charge pursuant to a 

merchant’s agreement with its credit card company may nevertheless be sued by and found liable to that same merchant for 

the full disputed amount despite the merchant’s failure to comply with such agreement.

9 Appellants also ask this court to consider several excluded exhibits related to the credit card dispute, including Genender’s 

two-page complaint filed with her credit card company and a notification from Store Fixtures’ credit card company that the dispute 

was resolved in Genender’s favor. These exhibits do not support appellants’ construction of the contract or remove any ambiguity 

about the terms of the contract.

10 There was conflicting evidence about whether appellants accepted the shelving and whether the shelving conformed to the 

contract. But the jury resolved this conflicting evidence in Store Fixtures’ favor, finding that appellants failed to comply with the 

agreement and Store Fixtures did not fail to comply with the agreement. We must defer to the jury’s resolution of conflicting 

evidence. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 820–21 (Tex.2005).

11 The jury charge here defines “acceptance” and declares, “A buyer must pay at the contract rate for any goods accepted.”

12 See also Gutierrez v. Wright Lawfirm, PLLC, No. 05–10–00725–CV, 2012 WL 1898950, at *6 (Tex.App.—Dallas Apr. 27, 2012, 

no pet.) (mem.op.); Belew v. Rector, 202 S.W.3d 849, 857 (Tex.App.—Eastland 2006, no pet.); Harrison v. Gemdrill Int’l, Inc.,

981 S.W.2d 714, 719 (Tex.App.—Houston [1st Dist.] 1998, pet. denied); Evans Cooperage of Houston, Inc. v. Port Drum Co.,

No. C14–92–00966–CV, 1994 WL 7243, at *4 (Tex.App.—Houston [14th Dist.] Jan. 13, 1994, writ denied) (not designated for 

publication); Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 904 (Tex.App.—Austin 1991, no pet.); Mackey v. Mackey, 721 

S.W.2d 575, 579 (Tex.App.—Corpus Christi 1986, no writ).

13 The parties dispute when exactly presentment must be made, and this court appears to have conflicting precedent on the subject. 

Compare Caldwell & Hurst v. Myers, 714 S.W.2d 63, 65 (Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (“Proper 

presentment is the assertion of a claim and a request for payment made 30 days before initiation of a suit.”), with Peissel v. Peissel,

620 S.W.2d 796, 800 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ) (“The rule in Texas is presentment of the claim must be 

made at least 30 days before trial, even if made after the suit is filed.”), and Cano v. Nino’s Paint & Body Shop, No. 

14–08–00033–CV, 2009 WL 1057622, at *7 (Tex.App.—Houston [14th Dist.] Apr. 16, 2009, no pet.) (mem.op.) (“Presentment 

may be made either before or after filing suit, provided it is made at least 30 days before judgment.”). Because we hold that Store 

Fixtures failed to prove presentment under the latest timeframe possible—30 days before judgment—we need not resolve when 

presentment must be made.

14 An award of attorney’s fees must be reversed if there is no evidence of presentment. See Helping Hands Home Care, Inc. v. Home 

Health of Tarrant Cnty., Inc., 393 S.W.3d 492, 516–17 (Tex.App.—Dallas 2013, pet. denied) (trial court correctly granted JNOV 

denying attorney’s fees because there was no evidence of presentment); Border Gateway, L.L.C. v. Gomez, No. 14–10–01266–CV, 

2011 WL 4361485 (Tex.App.—Houston [14th Dist.] Sept. 20, 2011, no pet.) (mem.op.) (trial court abused its discretion in a bench 

trial by awarding attorney’s fees because there was “no evidence” of presentment); Edinburg Meat Prods. Co. v. Vernon Co., 535 

S.W.2d 432, 437 (Tex.Civ.App.—Corpus Christi 1976, no writ) (sustaining “no evidence” point on presentment issue).

15 Although not cited by Store Fixtures on appeal, Plaintiff’s Exhibit No. 3 is an “invoice” contained in this the record. It is dated 

May 3, 2011, the date that appellants paid for the shelving on Genender’s credit card. But it shows a “Payments/Credits” of the full 

amount of the invoice and a “balance due” of $0.00. This does not show a demand for payment on an existing claim for a just 

amount owed. Further, we note that Store Fixtures contends that nonpayment occurred when the credit card charge was reversed.

But Store Fixtures’ president testified that Store Fixtures never demanded payment or contacted Genender about a contract claim 

before initiating suit in the justice court. There is no evidence that Store Fixtures sent an invoice to appellants showing a balance 

owing—no demand for payment.

16 We have reviewed Exhibit C to Store Fixtures’ response to appellants’ motion to disregard the jury’s answer to Jury Question No. 

5 regarding attorney’s fees, which is Store Fixtures’ response to appellants’ request for disclosures. The document does not 

demand payment of the claim but rather explains the legal theories and factual bases for the claim. Regardless, the trial court would 

have abused its discretion by considering the document for the same reasons articulated below in Part IV.D of this opinion 

regarding the affidavit.

17 Appellants objected because the affidavit was “an improper and untimely attempt to supplement the record before the jury.”
Genender v. USA Store Fixtures, LLC, 451 S.W.3d 916 (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

18 Although Bloome testified before the jury about the amount of his fees, he did not testify about the alleged July 12 demand.

19 Because we conclude Store Fixtures failed to prove presentment, we do not address appellants’ contention that Store Fixtures 

failed to plead presentment. See Tex.R.App. P. 47.1.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

170 S.W.3d 242

Court of Appeals of Texas,

Dallas.

Dennis NAUSLAR and Nauslar Investments, 

L.L.C., Appellant

v.

COORS BREWING CO. and Golden Distributing 

Enterprises, L.P., Appellees.

No. 05–04–00704–CV. | Aug. 19, 2005.

Synopsis

Background: Individual, who was sole owner of limited 

liability company (LLC) which had been both limited 

partner in beer distributorship limited partnership and 

general partner in limited partnership’s general partner, 

and the LLC, brought claims, personally and on behalf of 

limited partnership, against brewery for breach of contract 

and violation of Texas Beer Industry Fair Dealing Law 

(BIFDL), and against brewery and its assignee for 

conspiracy, negligence per se, and tortious interference, 

relating to defendants’ conduct in blocking limited 

partnership’s proposed joint venture with another 

distributor, with brewery eventually approving of sale of 

limited partnership to the other distributor. The 193rd 

District Court, Dallas County, David Evans, J., granted 

defendants’ plea to the jurisdiction, based on lack of 

standing, and denied attorney fee award to brewery under 

BIFDL. Cross-appeals were taken.

Holdings: The Court of Appeals, Michael J. O’Neill, J., 

held that:

[1] individual plaintiff lacked standing to bring 

common-law claims;

[2] LLC lacked standing to bring common-law claims;

[3] plaintiffs lacked standing to bring claims under BIFDL;

[4] BIFDL does not prohibit a beer distributor from 

making a warranty of non-assignment of BIFDL claims;

[5] plaintiffs lacked capacity to sue on behalf of limited 

partnership; and

[6] brewery was entitled to prevailing-party attorney fees 

under BIFDL.

Affirmed in part, reversed in part, and remanded.

West Headnotes (34)

[1] Appeal and Error

Cases Triable in Appellate Court

Because the question of standing is a legal 

question, the appellate court reviews de novo a 

trial court’s ruling on a plea to the jurisdiction.

3 Cases that cite this headnote

[2] Action

Persons entitled to sue

Standing is a component of a court’s 

subject-matter jurisdiction.

5 Cases that cite this headnote

[3] Courts

Allegations, pleadings, and affidavits

The plaintiff has the burden of alleging facts that 

affirmatively demonstrate a court’s 

subject-matter jurisdiction to hear a cause.

1 Cases that cite this headnote

[4] Pleading

Plea to the Jurisdiction

A plea to the jurisdiction challenges a trial 

court’s authority to hear a case by alleging that 

the factual allegations in the plaintiff’s 

pleadings, when taken as true, fail to invoke the 
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

trial court’s subject-matter jurisdiction.

1 Cases that cite this headnote

[5] Pleading

Construction in General

The court construes the allegations in the 

pleadings in favor of the pleader.

Cases that cite this headnote

[6] Pleading

Amendments following sustaining of pleas

When a plaintiff fails to plead facts that 

establish subject-matter jurisdiction, but the 

petition does not affirmatively demonstrate 

incurable defects in jurisdiction, the issue is one 

of pleading sufficiency and the plaintiff should 

be afforded the opportunity to amend after 

granting of plea to the jurisdiction.

1 Cases that cite this headnote

[7] Pleading

Amendments following sustaining of pleas

If the pleadings affirmatively negate the 

existence of subject-matter jurisdiction, then a 

plea to the jurisdiction may be granted without 

allowing the plaintiff an opportunity to amend.

Cases that cite this headnote

[8] Action

Persons entitled to sue

A person has “standing” to sue when he is 

personally aggrieved by the alleged wrong.

3 Cases that cite this headnote

[9] Action

Persons entitled to sue

A person has “standing” to sue if: (1) he has 

sustained, or is immediately in danger of 

sustaining, some direct injury as a result of the 

wrongful act of which he complains; (2) he has a 

direct relationship between the alleged injury 

and claim sought to be adjudicated; (3) he has a 

personal stake in the controversy; (4) the 

challenged action has caused the plaintiff some 

injury in fact, either economic, recreational, 

environmental, or otherwise; or (5) he is an 

appropriate party to assert the public’s interest in 

the matter, as well as his own.

14 Cases that cite this headnote

[10] Action

Persons entitled to sue

Without a breach of a legal right belonging to 

the plaintiff, the plaintiff has no standing to 

litigate.

5 Cases that cite this headnote

[11] Action

Persons entitled to sue

Only the person whose primary legal right has 

been breached may seek redress for an injury.

10 Cases that cite this headnote

[12] Action
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Persons entitled to sue

An individual stakeholder in a legal entity does 

not have a right to recover personally for harms 

done to the legal entity.

6 Cases that cite this headnote

[13] Action

Persons entitled to sue

Where damage is to the business entity’s worth, 

the individual stakeholder cannot personally 

recover, whether the damages sought are in 

terms of diminished value of an ownership 

interest or loss of employee benefits.

1 Cases that cite this headnote

[14] Partnership

Partnership or Partners as Plaintiffs

A partner has no individual, separate cause of 

action for losses suffered by reason of tortious 

interference with a contract between the 

partnership and a third party; damages for loss 

in value of the partnership interest or the 

partner’s employment losses are subsumed in 

the partnership’s causes of action.

5 Cases that cite this headnote

[15] Partnership

Persons entitled to sue;  standing

Individual who was sole owner of limited 

liability company (LLC) which had been both 

limited partner in beer distributorship limited 

partnership and general partner in limited 

partnership’s general partner, and who was also 

prospective company manager for proposed 

joint venture between limited partnership and 

another beer distributor, lacked standing to sue 

brewery for breach of contract, and to sue 

brewery and its assignee for conspiracy, 

negligence per se, and tortious interference, so 

as to recover, on his own behalf, damages for 

injuries to limited partnership that diminished 

the value of individual’s ownership interest and 

affected his prospective employment, with such 

claims relating to brewery’s invocation of its 

right under its distributorship agreement with 

limited partnership to negotiate exclusively to 

buy limited partnership, brewery’s subsequent 

assignment of that right, and brewery’s and 

assignee’s efforts to block the joint venture, with 

brewery eventually approving of outright sale of 

limited partnership to other distributor; right of 

recovery for injuries to limited partnership was 

limited partnership’s alone.

6 Cases that cite this headnote

[16] Partnership

Persons entitled to sue;  standing

Limited liability company (LLC), as both former 

limited partner in beer distributorship limited 

partnership and former general partner in limited 

partnership’s general partner, lacked standing to 

sue brewery for breach of contract, and to sue 

brewery and its assignee for conspiracy, 

negligence per se, and tortious interference, so 

as to recover damages, on behalf of LLC, for 

injuries to limited partnership that diminished 

the value of LLC’s ownership interest, with such 

claims relating to brewery’s conduct, in 

response to proposal for joint venture between 

limited partnership and another beer distributor, 

in invoking its right under its distributorship 

agreement with limited partnership to negotiate 

exclusively to buy limited partnership, 

brewery’s subsequent assignment of that right, 

and brewery’s and assignee’s efforts to block the 

joint venture, with brewery eventually 

approving of outright sale of limited partnership 

to other distributor; right of recovery for injuries 

to limited partnership was limited partnership’s 

alone, and LLC no longer held ownership 

interest in limited partnership.

4 Cases that cite this headnote
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

[17] Action

Persons entitled to sue

Standing to sue can be predicated upon either 

statutory or common-law authority.

3 Cases that cite this headnote

[18] Action

Persons entitled to sue

Common-law rules of standing apply unless 

statutory authority for standing exists.

3 Cases that cite this headnote

[19] Appeal and Error

Cases Triable in Appellate Court

The appellate court reviews matters of statutory 

construction de novo.

Cases that cite this headnote

[20] Statutes

Intent

In construing a statute, the court’s objective is to 

determine and give effect to the legislature’s 

intent.

3 Cases that cite this headnote

[21] Statutes

Plain language;  plain, ordinary, common, or 

literal meaning

If a statute’s meaning is unambiguous, the court 

generally interprets the statute according to its 

plain meaning.

Cases that cite this headnote

[22] Statutes

Language

The court begins statutory interpretation by 

examining the exact wording of the statute and 

applying the tenet that the legislature chooses its 

words carefully and means what it says.

2 Cases that cite this headnote

[23] Statutes

Statute as a Whole;  Relation of Parts to 

Whole and to One Another

The court determines legislative intent from the 

entire act and not just its isolated portions.

6 Cases that cite this headnote

[24] Intoxicating Liquors

Judicial review and enforcement

Neither an individual, who was sole owner of 

limited liability company (LLC) which had been 

both limited partner in beer distributorship 

limited partnership and general partner in 

limited partnership’s general partner, nor the 

LLC, was the distributor under brewery’s 

distributorship agreement with limited 

partnership, and thus, individual and LLC 

lacked standing to bring action against brewery 

under Texas Beer Industry Fair Dealing Law 

(BIFDL) for unreasonably withholding approval 

of transfer of distributorship interest. V.T.C.A., 

Alcoholic Beverage Code §§ 102.76(a), 

102.79(a).

Cases that cite this headnote
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

[25] Intoxicating Liquors

Quantity, and sale at retail or wholesale; 

regulation of wholesalers in general

A beer distributor’s representation, in a release, 

that it has not assigned its statutory claims under 

the Texas Beer Industry Fair Dealing Law 

(BIFDL), if any, to a third party does not violate 

the provision of BIFDL prohibiting agreements 

varying the effect of BIFDL, because BIFDL 

grants a right of action only to distributors or 

manufacturers who are parties to a 

distributorship agreement. V.T.C.A., Alcoholic 

Beverage Code §§ 102.72(c), 102.79(a).

1 Cases that cite this headnote

[26] Action

Persons entitled to sue

Parties

Capacity and interest in general

A plaintiff must have both standing and capacity 

to bring a lawsuit.

1 Cases that cite this headnote

[27] Parties

Capacity and interest in general

A party has capacity to sue when it has legal 

authority to act, regardless of whether it has a 

justiciable interest in the controversy.

Cases that cite this headnote

[28] Partnership

Persons entitled to sue;  standing

Individual, who was sole owner of limited 

liability company (LLC) which had been both 

limited partner in beer distributorship limited 

partnership and general partner in limited 

partnership’s general partner, and the LLC, after 

sale of limited partnership’s assets to another 

distributor, without any pre-sale assignment to 

individual and LLC of limited partnership’s 

causes of action against brewery and its 

assignee, lacked capacity to sue brewery and its 

assignee, on behalf of limited partnership, for 

breach of contract, and to sue brewery and its 

assignee, on behalf of limited partnership, for 

conspiracy, negligence per se, and tortious 

interference, relating to brewery’s conduct, in 

response to proposal for joint venture between 

limited partnership and other distributor, in 

invoking its right under its distributorship 

agreement with limited partnership to negotiate 

exclusively to buy limited partnership, 

brewery’s subsequent assignment of that right, 

and brewery’s and assignee’s efforts to block the 

joint venture, with brewery eventually 

approving of outright sale of limited partnership 

to other distributor.

3 Cases that cite this headnote

[29] Corporations and Business Organizations

Construction, operation, and effect

Corporations and Business Organizations

Assumption of or Succession to Transferor’s 

Debts and Liabilities

When a business entity is acquired in its entirety 

by another, in the absence of specific terms to 

the contrary, both the liabilities and assets of the 

acquired company are transferred to the 

purchaser.

Cases that cite this headnote

[30] Evidence

Pleadings

Individual, who was sole owner of limited 

liability company (LLC) which had been both 

limited partner in beer distributorship limited 
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

partnership and general partner in limited 

partnership’s general partner, and the LLC, by 

making assertion of fact, in their petition against 

brewery, that brewery had conditioned its 

approval of sale of limited partnership to another 

distributor on limited partnership warranting that 

it had not assigned its claims against brewery to 

another party, judicially admitted that individual 

and LLC had not been assigned legal title to 

limited partnership’s causes of action against 

brewery, which admission was relevant to 

whether individual and LLC had capacity to sue 

brewery on behalf of limited partnership.

1 Cases that cite this headnote

[31] Pleading

Statement of cause of action in general

A party may plead himself out of court, e.g., the 

plaintiff may plead facts which affirmatively 

negate his cause of action.

Cases that cite this headnote

[32] Appeal and Error

Reversal ineffectual or not beneficial

Appellate court would not remand to trial court, 

so that individual, who was sole owner of 

limited liability company (LLC) which had been 

both limited partner in beer distributorship 

limited partnership and general partner in 

limited partnership’s general partner, and the 

LLC, could plead more specifically a basis for 

their capacity to sue brewery on behalf of 

limited partnership, for brewery’s interference 

with limited partnership’s proposed joint 

venture, where remand would be futile; 

individual and LLC had already in their 

pleadings affirmatively negated that they owned 

legal title to the causes of action, asserting 

instead a legal theory to overcome their lack of 

legal title, which theory the appellate court 

rejected.

2 Cases that cite this headnote

[33] Intoxicating Liquors

Judicial review and enforcement

Prevailing-party attorney fee award is 

mandatory, in provision of Texas Beer Industry 

Fair Dealing Law (BIFDL) stating that 

prevailing party “shall” recover reasonable 

attorney fees in an action for violation of 

BIFDL. V.T.C.A., Alcoholic Beverage Code § 

102.79(a), (c).

3 Cases that cite this headnote

[34] Intoxicating Liquors

Judicial review and enforcement

Brewery was “prevailing party,” and therefore 

was entitled to prevailing-party attorney fees 

under Texas Beer Industry Fair Dealing Law 

(BIFDL), in action brought under BIFDL by 

individual who was sole owner of limited 

liability company (LLC) which had been both 

limited partner in beer distributorship limited 

partnership and general partner in limited 

partnership’s general partner, and by the LLC, 

where the court concluded that individual and 

LLC lacked standing to sue under BIFDL. 

V.T.C.A., Alcoholic Beverage Code § 

102.79(a), (c).

3 Cases that cite this headnote

Attorneys and Law Firms

*246 Martin J. Siegel, Houston, TX, for Appellant.

Jon P. Christiansen, Michael J. Aprahamian, Foley & 

Lardner LLP, Milwaukee, WI, Monica Wiseman Latin, J. 

Michael Hughes, Rodney H. Lawson and John Franklin 

Guild, Carrington, Coleman, Sloman & Blumenthal, 

L.L.P., David Bryant, Diamond, McCarthy, Taylor, 

Finley, Bryant & Lee, Sean Joseph McCaffity, Dallas, 

TX, for Appellee.
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Before Justices BRIDGES, O’NEILL, and MAZZANT.

OPINION

Opinion by Justice O’NEILL.

The trial court granted the Defendants’ pleas to the 

jurisdiction for lack of standing *247 on all of the 

Plaintiffs’ claims and dismissed the case. We conclude 

that (1) Plaintiff–Appellants lack standing on the statutory 

and common-law causes of action brought on their own 

behalf. Concerning the causes of action asserted “on 

behalf of” the business entity that they sold, they 

affirmatively negate having capacity to bring those 

claims. Accordingly, we affirm the trial court’s dismissal 

of all of Plaintiffs’ claims. We reverse the trial court’s 

order denying Coors attorneys’ fees and remand that 

issue.

Facts

The crux of this dispute is the disapproval by Coors 

Brewing Co. (“Coors”) of a proposed consolidation in 

2001 between Willow Distributors, L.P. (“Willow”), an 

entity distributing Coors beer in the Dallas area, and the 

distributor of Miller beer, Miller of Dallas (“Miller”). 

Plaintiffs alleged that Willow and Miller had agreed to a 

joint venture that would be operated by a new entity, 

United LP. Willow and Miller would each own 50% of 

the new entity, and the cash flow from the new business 

would be shared equally. In addition, Nauslar asserts the 

new enterprise would employ him as a company manager.

At the time of the proposed consolidation (the 

“Consolidation”), neither of the Plaintiffs was party to the 

distributorship agreement with Coors. Rather, Willow was 

the contracting party and the named distributor under the 

distributor agreement with Coors. Plaintiff Dennis 

Nauslar, individually, did not have a direct ownership 

interest in Willow, and Plaintiff Nauslar Investments was 

the limited partner in Willow. The structure underpinning 

Willow is as follows: Willow’s general partner was DEN 

L.P. and its limited partner was Nauslar Investments LLC. 

Nauslar, individually, was 100% owner of Nauslar 

Investments, which in turn was the limited partner in 

DEN L.P (general partner in Willow).

When, in September 2001, Nauslar presented the 

proposed Consolidation to Coors for its approval, Coors 

rejected the deal. Instead, Coors invoked its right under 

the distributorship agreement to negotiate exclusively to 

buy Willow. It assigned that exclusive right to Golden 

Distributing Enterprises, L.P. (Golden). Over the next 

year, according to Plaintiffs, it became clear that Golden 

could not feasibly consolidate with or purchase Willow. 

Subsequently, Nauslar approached Miller again, but this 

time Miller was interested in only an outright purchase of 

Willow. Coors approved an outright sale to Miller. Coors, 

relying on a clause in the distributorship agreement, 

required Nauslar to sign a “mutual release” on behalf of 

Willow. Under that agreement, both Willow and Coors 

released any and all claims each had against the other and 

also warranted that neither party had assigned any such 

claims to a third party. Nauslar signed the release, and 

Miller bought Willow and DEN L.P. from Nauslar and 

Nausar Investments for $57.8 million.

Nauslar and Nauslar Investments sued Coors, alleging it 

unreasonably disapproved the proposed Consolidation 

with Miller, in violation of the Texas Beer Industry Fair 

Dealing Law. They also brought a number of 

common-law claims against Coors and Golden, including 

one for tortious interference with the Consolidation. After 

two hearings, the trial court granted Coors’s and Golden’s 

pleas to the jurisdiction and dismissed all of the Plaintiffs’ 

causes of action for lack of standing. Plaintiffs brought 

this appeal, challenging the trial courts’ dismissal of their 

statutory and common-law causes of action.

*248 Summary

Plaintiffs seek to bring their claims in their own right, as 

individual claims brought on their own behalf. They also 

assert—as former partners and owners of Willow—claims 

“on behalf of” Willow, for alleged injuries to Willow 

itself, but with recovery going to Plaintiffs, not Willow. 

First, we address the individual claims and conclude that 

Plaintiffs lack standing to bring either the common-law or 

statutory causes of action in their own right. We address 

next the claims brought “on behalf of” Willow, i.e., the 

Willow partnership’s claims. We conclude that Plaintiffs, 

in their live pleading, affirmatively negate that they have 

capacity to bring claims on behalf of Willow. Having 

rejected their other theory by which to allege capacity, we 

affirm dismissal of the claims asserted on behalf of 

Willow. We conclude that an award of attorney’s fees 

under the statute is mandatory if one party prevails in an 

action under that statute, and thus we reverse the trial 

court’s order denying Coors its attorney’s fees and 

remand that issue.
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

I. Common–Law Causes of Action Asserted as 

Individual Right of Action

We address whether the Plaintiffs have standing, in their 

own right, to bring and personally recover on the 

common-law causes of action1they assert against 

Defendants. We note first the injury asserted. Plaintiffs 

allege that Willow was weakened by Coors’s efforts to 

force a deal with Golden, and that Willow’s value 

declined between the time of the disapproval in 2001 and 

the subsequent sale to Miller in 2003. Specifically, 

Plaintiffs assert damages as follows: Nauslar, 

individually, seeks redress for (1) the distributions, profits 

and other benefits of ownership he would have reaped as 

the sole owner of Willow and other corporate entities, had 

Coors approved the Consolidation; and (2) loss of salary, 

bonuses and other employment compensation he would 

have been paid by United (the operating entity to be 

formed upon Consolidation) as well as 

employment-related losses as an employee of Willow. 

Nauslar Investments, Inc. asserts that, as the former 

general partner of DEN LP (the general partner of 

Willow) and as the former limited partner of Willow, it 

was “injured to the same degree as—and could assert all 

claims of DEN LP and Willow.”

In sum, Nauslar seeks damages for loss of the benefits of 

ownership and employment-related losses. Nauslar 

Investments, as former general partner of the general 

partner of Willow, seeks damages that mirror those 

suffered by Willow.

A. Standard of Review and Principles Governing 

Standing

[1] [2] [3] [4] [5] Because the question of standing is a legal 

question, we review de novo a trial court’s ruling on a 

plea to the jurisdiction. Mayhew v. Town of Sunnyvale,

964 S.W.2d 922, 928 (Tex.1998). Standing is a 

component of a court’s subject-matter jurisdiction. Tex. 

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 

446 (Tex.1993). The plaintiff has the burden of alleging 

facts that affirmatively demonstrate a court’s jurisdiction 

to hear a cause. Id. A plea to the jurisdiction challenges a 

trial court’s authority to hear a case by alleging that the 

factual allegations *249 in the plaintiff’s pleadings, when 

taken as true, fail to invoke the trial court’s jurisdiction. 

El Paso Cmty. Partners v. B & G/Sunrise Joint Venture,

24 S.W.3d 620, 623 (Tex.App.-Austin 2000, no pet.)

(citing Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 

331 S.W.2d 910, 917 (1960)). We construe the allegations 

in the pleadings in favor of the pleader. Tex. Air Control 

Bd., 852 S.W.2d at 446.

[6] [7] When a plaintiff fails to plead facts that establish 

jurisdiction, but the petition does not affirmatively 

demonstrate incurable defects in jurisdiction, the issue is 

one of pleading sufficiency and the plaintiff should be 

afforded the opportunity to amend. County of Cameron v. 

Brown, 80 S.W.3d 549, 555 (Tex.2002). On the other 

hand, if the pleadings affirmatively negate the existence 

of jurisdiction, then a plea to the jurisdiction may be 

granted without allowing the plaintiff an opportunity to 

amend. Id.

[8] [9] A person has standing to sue when he is personally 

aggrieved by the alleged wrong. Nootsie Ltd. v. 

Williamson County Appraisal Dist., 925 S.W.2d 659, 661 

(Tex.1996). A person has standing if (1) he has sustained, 

or is immediately in danger of sustaining, some direct 

injury as a result of the wrongful act of which he 

complains; (2) he has a direct relationship between the 

alleged injury and claim sought to be adjudicated; (3) he 

has a personal stake in the controversy; (4) the challenged 

action has caused the plaintiff some injury in fact, either 

economic, recreational, environmental, or otherwise; or 

(5) he is an appropriate party to assert the public’s interest 

in the matter, as well as his own. Precision Sheet Metal 

Mfg. Co., Inc. v. Yates, 794 S.W.2d 545, 552 

(Tex.App.-Dallas 1990, writ denied).

[10] [11] Without a breach of a legal right belonging to a 

plaintiff, that plaintiff has no standing to litigate. Exxon 

Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.-Tyler 2002, 

pet. denied); Cadle Co. v. Lobingier, 50 S.W.3d 662, 

669–70 (Tex.App.-Fort Worth 2001, pet. denied); 

Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex.App.-Fort 

Worth 2001, no pet.). Only the person whose primary 

legal right has been breached may seek redress for an 

injury. Nobles v. Marcus, 533 S.W.2d 923, 927 

(Tex.1976) (defrauded party only can bring suit to set 

aside deed obtained by fraud). “Without breach of a legal 

right belonging to the plaintiff no cause of action can 

accrue to his benefit.” Id.

B. Legal Principles: Whose Primary Legal Right Was 

Allegedly Infringed?

Plaintiffs’ principle argument is that the issue raised 

concerns who owns the claims, and thus presents a 

question of capacity, not standing. They rely on Pledger 

v. Schoellkopf, 762 S.W.2d 145, 146 (Tex.1988) (a 

challenge to a shareholder’s right to bring a cause of 

action for wrongs done to the corporation raises a 

question of capacity). They also rely on Prostok v. 

Browning, 112 S.W.3d 876, 921 (Tex.App.-Dallas 2003)

(“A challenge to who owns a claim raises the issue of 

capacity, not standing.”), aff’d, 165 S.W.3d 336 

(Tex.2005). We disagree that the pleadings raise only an 
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

issue of capacity, not standing. The case law reveals that, 

with respect to Plaintiffs’ individual common-law causes 

of action, a fundamental question is raised: Do these 

claims embody a primary legal right belonging to the 

Plaintiffs or does the Willow partnership have the primary 

right of action? That raises an issue of standing.

We note initially that Pledger cannot stand for the 

simplistic proposition that a challenge to a stakeholder’s 

bringing a suit to recover personally for corporate wrongs 

*250 raises an issue of capacity only. The Pledger court 

did not, indeed could not, discuss standing because that 

issue was not before it. 762 S.W.2d at 145–46. The case 

was decided before the determination that standing is an 

component of subject-matter jurisdiction and thus can be 

raised first on appeal. See Tex. Air Control Bd., 852 

S.W.2d at 446.

[12] An individual stakeholder in a legal entity does not 

have a right to recover personally for harms done to the 

legal entity. Wingate v. Hajdik, 795 S.W.2d 717, 719 

(Tex.1990). In Wingate, one corporate shareholder sued 

another alleging he had appropriated corporate assets. The 

court ruled that individual stockholders have no separate, 

independent right of action for injuries suffered by the 

corporation, when the injures merely result in 

depreciation of the value of plaintiffs’ stock. Id. at 719.

In Fredericksburg Indus., Inc. v. Franklin Int’l, Inc., 911 

S.W.2d 518, 520 (Tex.App.-San Antonio 1995, writ 

denied), the president/employee of a furniture 

manufacturing corporation sued a corporate supplier, 

asserting he lost wages as a result of the supplier’s 

delivering defective glue. The court held he lacked 

standing: the cause of action belonged to the corporation 

alone, as the damages were to the corporation’s profits, 

and any claim the plaintiff had for lost wages was against 

the corporation. Id. at 521.

[13] Other cases in the corporate context reaffirm that 

where damage is to the business entity’s worth, the 

individual stakeholder cannot personally recover, whether 

the damages sought are in terms of diminished value of an 

ownership interest or loss of employee benefits. In 

Mendenhall v. Fleming Co., Inc., 504 F.2d 879 (5th 

Cir.1974), the plaintiffs sought to recover personally for 

damages from anti-trust violations arising from the 

operation of retail stores by a corporation, which they had 

created. Id. at 880. The court noted that the business 

allegedly interfered with was that operated by the 

corporation and the damages sought were direct damage 

to corporate worth. Thus, the plaintiffs lacked standing. 

Id. at 880–81. The right of recovery was the entity’s right 

alone, even though in an economic sense the impact “may 

bring about reduced earnings, lower salaries, bonuses, 

injury to general business reputation, or diminution in the 

value of ownership.” Id. at 881 (quoting Martens v. 

Barrett, 245 F.2d 844, 846 (5th Cir.1957)).

[14] A partner has no individual, separate cause of action 

for losses suffered by reason of tortious interference with 

a contract between the partnership and a third party: 

damages for loss in value of the partnership interest or 

employment losses are subsumed in the partnership’s 

causes of action. Cates v. Int’l Tel. & Tel. Corp., 756 F.2d 

1161 (5th Cir.1985) (construing Texas law).

C. Application and Conclusion

[15] [16] Nauslar generally argues that he has standing, 

because he was “personally aggrieved” by, and suffered 

“direct injury” from, Defendants’ actions in disapproving 

the Consolidation. He seeks to recover for loss of benefits 

of ownership and employment. Nauslar Investments 

asserts it has standing to sue, individually, for harms done 

to the partnership and seeks damages mirroring those 

Willow could recover.

As the case law demonstrates, Plaintiffs do not have a 

separate, individual right of action for injuries to the 

partnership that diminished the value of their ownership 

interest in that entity. Wingate, 795 S.W.2d at 719.

Willow is the one who suffered the direct injury from the 

alleged *251 harm to the partnership’s worth, and any 

loss to Plaintiffs in the sale price is “both indirect to and 

duplicative of” the entity’s right of action. Mendenhall,

504 F.2d at 881. The right of recovery is Willow’s right 

alone, even though the economic impact of the alleged 

wrongdoing may bring about reduced earnings, salary or 

bonus. Fredericksburg, 911 S.W.2d at 520; Cates, 756 

F.2d at 1181; Mendenhall, 504 F.2d at 881.

We note the applicability of the facts in Cates to the 

instant case. 756 F.2d 1161. The Cates plaintiff, a 

minority partner, attempted to bring individual claims for 

tortious interference with the partnership’s business, as do 

the Plaintiffs here. The damages sought were similar as 

well. The court’s holding warrants quotation:

Accordingly, any claims for 

damages which [plaintiff] suffered 

by reason of diminution in value of 

his partnership interest, or his share 

of partnership income, or his salary 

or bonus from the partnerships or 

their businesses, by reason of 

breach of such agreements, or 

tortious interference with such 
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

businesses, or anticompetitive 

conduct interfering with or limiting 

or “taking over” such businesses or 

their activities, are in effect 

subsumed within the causes of 

action of the partnerships and do 

not afford [plaintiff] ... a separate, 

individual cause of action.

Id. at 1181.

Accordingly, Willow possesses the primary legal right 

that was allegedly violated, and thus Willow is the 

exclusive party with a justiciable interest in redressing 

those alleged injuries. Accordingly, Plaintiffs do not have 

a standing to pursue and recover personally on the 

asserted common-law causes of action.

Plaintiffs’ arguments to the contrary do not alter our 

conclusion. Concerning the tortious-interference cause of 

action, Nauslar argues that he has individual standing to 

pursue the claim under Sturges v. Wal–Mart Stores, Inc.,

39 S.W.3d 608 (Tex.App.-Beaumont 1998), rev’d on 

other grounds, 52 S.W.3d 711 (Tex.2001). In that case, 

individuals were deemed to have standing where a 

proposed business entity was never formed due to the 

defendant’s interference. The appellate court held that the 

individual plaintiffs, who had signed the letter of intent, 

were all “interested parties who would have profited from 

the prospective lease,” who were directly involved in the

building of the proposed structure, and who sustained 

“direct economic injury” as a result of Wal–Mart’s 

interference. Id. at 614–15.

Sturges is inapposite. The proposed entity in Sturges was 

never formed, leaving the principals in that enterprise as 

the directly injured parties. In today’s case, the direct 

injury from Defendants’ alleged wrongdoing was to 

Willow, the operating business entity that would have 

consolidated with Miller.

Plaintiffs also rely on Abraham Inv. Co. v. Payne Ranch, 

Inc., 968 S.W.2d 518 (Tex.App.-Amarillo 1998, pet. 

denied) to overcome the obstacle that they were not party 

to the proposed consolidation agreement between Willow 

and Miller. In that case, plaintiff Abraham had a contract 

to purchase a ranch from defendant Payne. That contract 

was subject to a pre-existing preferential right of purchase 

contained in a contract between Payne and Campbell, 

which Campbell exercised to purchase the ranch. 

Defendants asserted Abraham lacked standing to sue for 

tortious interference, as he was not party to the 

Payne–Campbell contract. The court disagreed: whether 

Abraham was entitled to fulfillment of the direct contract 

to purchase with Payne turned on whether the third-party 

contract was properly exercised. Id. at 523–34.

*252 Abraham is inapposite, as the analogy fails at the 

outset. The plaintiff had a direct contract with the 

defendant. Disposition under that contract turned on 

whether the third-party contract was properly exercised. 

In today’s case, there is no direct contract between 

Plaintiffs and Defendants Coors and Golden. 

Accordingly, Plaintiffs lack standing to pursue their 

tortious-interference cause of action against Defendants.

Nauslar Investments asserts standing in its roles as former

general partner of Willow’s general partner and former

limited partner of Willow. To overcome the obstacle that 

it is not a general partner of Willow, it relies on the 

double derivative rule governing corporate derivative 

suits. To overcome the general rule that a partner cannot 

sue individually on a partnership claim, it relies on cases 

applying an exception to that rule. Those cases do not 

apply because, as discussed below, Nauslar Investments 

sold to Miller the entirety of its interest in Willow.2 None 

of the cases it cites stands for the proposition that a 

partner that has sold its entire interest in the partnership 

can personally recover on a claim belonging to that 

partnership. The Mendenhall court, discussing the sale of 

corporate stock, captured the effect of the Plaintiffs’ sale 

of the partnership:

When [plaintiffs] sold their corporate stock to a third 

party, they sold their right to control the very cause of 

action they now attempt to assert. This suit cannot 

reclaim that corporate cause of action by asserting the 

same damage sustained by the corporation also served 

to diminish the value of their individually held estates.

Mendenhall, 504 F.2d at 881.

II. Plaintiffs’ Statutory Causes of Action Asserted in 

Their Right

Plaintiffs assert that Coors unreasonably disapproved the 

Consolidation in violation of the Texas Beer Industry Fair 

Dealing Law (BIFDL), which prohibits manufacturers 

from withholding approval of the transfer of 

distributorship rights if the substituting party meets 

“reasonable standards.” TEX. ALCO. BEV.CODE ANN.. 

§ 102.71, -.76, -.77, -.79 (Vernon 1995). We examine 

whether Plaintiffs have standing, in their own right, to 

bring a claim for the alleged violation of BIFDL.3

A. Legal Principles Governing Standing Based on 

Statute
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

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[17] [18] Standing to sue can be predicated upon either 

statutory or common-law authority. See Williams v. Lara,

52 S.W.3d 171, 178–79 (Tex.2001). The general rules of 

standing apply unless statutory authority for standing 

exists. Id. at 178. If standing is statutorily conferred, the 

statute granting authority and the case law interpreting it 

serve as the proper framework of analysis. See Hunt v. 

Bass, 664 S.W.2d 323, 324 (Tex.1984).

[19] [20] [21] [22] [23] We review matters of statutory 

construction de novo. City of San Antonio *253 v. City of 

Boerne, 111 S.W.3d 22, 25 (Tex.2003). In construing a 

statute, our objective is to determine and give effect to the 

legislature’s intent. Id. If a statute’s meaning is 

unambiguous, we generally interpret the statute according 

to its plain meaning. Id. We begin by examining the exact 

wording and apply the tenet that the legislature chooses 

its words carefully and means what it says. Williams v. 

Vought, 68 S.W.3d 102, 115 (Tex.App.-Dallas 2001, no 

pet.) (Morris, J., concurring). We determine legislative 

intent from the entire act and not just its isolated portions. 

City of San Antonio, 111 S.W.3d at 25.

BIFDL provides a judicial remedy for a “manufacturer”

or “distributor,” as defined in the statute,4 who are parties 

to a distributorship agreement:

If a manufacturer or distributor who is a party to an 

agreement pursuant to Section 102.51 of this code fails 

to comply with this Act or otherwise engages in 

conduct prohibited under this Act ... the aggrieved 

manufacturer or distributor may maintain a civil action 

in a court of competent jurisdiction....

TEX. ALCO. BEV.CODE ANN.. § 102.79(a).

BIFDL prohibits a manufacturer from withholding 

approval of a distributor’s transfer of its distributorship 

interest when the person or persons to be substituted 

“meet reasonable standards.” The full provision reads as 

follows:

No manufacturer shall unreasonably withhold or delay 

its approval of any assignment, sale, or transfer of the 

stock of a distributor or all or any portion of a 

distributor’s assets, distributor’s voting stock, the 

voting stock of any parent corporation, or the beneficial 

ownership or control of any other entity owning or 

controlling the distributor, including the distributor’s 

rights and obligations under the terms of an agreement 

whenever the person or persons to be substituted meet 

reasonable standards. ...

Id. § 102.76(a) (emphasis added).

In a case construing these two sections of BIFDL, the 

Corpus Christi Court of Appeals held that the plaintiff did 

not have a statutory right to maintain its cause of action 

against the distributor, because it failed to comply strictly 

with the statute’s requirements. Ace Sales Co., Inc. v. 

Cerveceria Modelo, S.A. de C.V., 739 S.W.2d 442, 447 

(Tex.App.-Corpus Christi 1987, writ denied). The 

distributor Ace sought damages for the manufacturer’s 

failure to approve a transfer of the distributorship rights to 

Ace’s buyer. The court noted that section 102.79 of 

BIFDL provides a remedy for parties to an agreement 

under section 102.51, which in turn requires a written 

agreement. TEX. ALCO. BEV.CODE ANN.. §§ 102.51, 

102.79. Because Ace did not produce a written 

agreement, it had no remedy under BIFDL. Id. In so 

holding, the court relied on the principle that “if a cause 

of action and remedy for its enforcement are derived from 

a statute, the statutory provisions are mandatory and 

exclusive, and must be complied with in all respects or 

the action is not maintainable.” Id. (quoting Tex. 

Catastrophe Prop. Ins. Ass’n v. Council of Co–Owners of 

Saida II Towers Condo. Ass’n, 706 S.W.2d 644, 646 

(Tex.1986)).

B. Analysis and Conclusion

[24] Nauslar argues that although he is not a “distributor”

under the BIFDL definition, he should be entitled to sue 

under the statute, based on its text, legislative history, and 

purpose. Nauslar *254 points to the text of Section 

102.76(a) that protects not just transfers of the 

distributorship itself, but also transfers of “the voting 

stock of any partner corporation,” as well as the 

“beneficial ownership” of entities owning the distributor. 

He argues that persons representing those interests must 

have standing under the statute, to effectuate the broad 

protective purpose of the statute. He also points to pieces 

of legislative history to indicate that, in discussing the 

pending bill, the legislators did not distinguish between 

the business entity that comprises the distributorship and 

the individuals who own that entity.

We are not persuaded to adopt Plaintiffs’ expansive 

reading of the text of BIFDL. Rather, we are persuaded by 

Appellee’s argument that when the legislature intends to 

grant a remedy to all persons who might be injured by a 

statutory violation, it plainly grants a remedy to “injured 

persons.” See, e.g., TEX. BUS. & COM.CODE ANN. § 

19.02 (Vernon 2002) (granting judicial remedy to “a 

person injured” by a violation of the statute regulating 

relationship between manufacturers and dealers of 

particular equipment); TEX. OCC.CODE ANN. § 

2352.201 (Vernon 2004) (violators of statute are liable to 

“an injured party ...”).
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

We apply the tenet that the legislature chooses its words 

carefully and means what it says. Williams, 68 S.W.3d at 

115. The remedies section, Section 102.79(a), plainly 

states who may sue for violations of the statute: 

“manufacturers” and “distributors,” as defined under the 

statute, who are party to a distributorship agreement. 

These plaintiffs do not fall within the statutorily defined 

class of persons who may sue. Neither are we persuaded 

to read the statute expansively to go beyond its plainly 

stated purpose. The statute states that its purpose is “to 

promote the public’s interest in the fair, efficient, and 

competitive distribution of beer within the state....” TEX. 

ALCO. BEV.CODE ANN.. § 102.72. As noted, Willow 

itself has standing to redress violations of the statute. This 

satisfies the statutory purpose of protecting the general 

public interest in fair competition. We conclude the 

statutory purpose does not extend to protect Plaintiffs’ 

individual interests in obtaining higher compensation 

from the transfer of its interest in Willow. Tex. 

Catastrophe Prop. Ins., 706 S.W.2d at 646 (when cause 

of action derives from statute, statutory provisions must 

be complied with in all respects or action not 

maintainable).

C. Was the No–Assignment Clause Void?

[25] Nauslar asserts Coors demanded that Willow sign a 

mutual release of any claims it had against Coors, which 

included Willow’s warranty that it had not assigned any 

of its claims to a third party. Nauslar asserts that, but for 

Coors’s insistence that he execute the release by Willow, 

he would have assigned Willow’s claims to himself. The 

release, Nauslar asserts, violated the “anti-waiver”

provision of BIFDL. He argues Coors should not be 

allowed to circumvent the section prohibiting 

unreasonable disapproval of a transfer by violating the 

section prohibiting the release of such claims. As a 

remedy, Nauslar invokes equity principles, urging the 

court to declare an “equitable assignment” of Willow’s 

claims to Nauslar, thus enabling him to sue—as 

constructive assignee of Willow’s claims—under BIFDL.

Section 102.72(c) of BIFDL states, “The effect of this Act 

may not be varied by agreement. Any agreement 

purporting to do so is void and unenforceable to the extent 

of such variance only.” Nauslar asserts that this 

“anti-waiver” provision prohibited Coors from 

conditioning its approval of the sale of Willow on 

Willow’s *255 release of its claims against Coors. 

Nauslar insists the only permitted reason for disapproving 

a transfer under section 102.76 is when the proposed 

transferee fails to meet “reasonable standards.” Coors is 

thus not permitted to disapprove a transfer based on a 

failure to sign a release. Thus Nauslar argues, the 

release-with-non-assignment clause, which waives the 

distributor’s BIFDL claim, should be declared void under 

the anti-waiver provision, section 102.72(c).

We note that the issue Nauslar raises, whether he 

individually had statutory standing to pursue Willow’s 

claim, turns on the permissibility of the clause in which 

Willow warrants it did not assign its claims to a third 

party. Thus, we need not address whether the release by 

Willow of its own BIFDL claims against Coors was 

prohibited by the anti-waiver provision in section 

102.76(c). The issue is this: Is a distributor’s 

representation that it has not assigned its statutory claims, 

if any, to a third party an agreement that “varies the effect 

of the BIFDL” so as to be void? As discussed, the plain 

language of section 102.79 grants a right of action only to 

“distributors or manufacturers” that are party to a 

distributorship agreement. Nauslar points to no authority 

to indicate that BIFDL claims must remain freely 

assignable to those not otherwise entitled to bring such 

claims in their own right. And we see no language in the 

text of the statute requiring the reading urged by 

Plaintiffs.

Accordingly, we hold that neither Plaintiff has standing to 

bring the claims, on their own behalf, seeking redress for 

violations of BIFDL.

III. Plaintiffs’ Causes of Action Asserted “On Behalf 

Of” Willow

We turn to Plaintiffs’ assertion of causes of action 

purportedly brought “on behalf of” Willow. Plaintiffs 

assert—as the former partners in and owners of

Willow—they are entitled to recover personally on 

Willow’s claims for injuries suffered by Willow. 

Plaintiffs argue Defendants’ challenges go to the issue of 

“claim ownership” only. They assert, “An argument about 

whether a current or former owner, as distinct from his 

company, owns a particular claim is an argument about 

capacity.”

A. Legal Principles

[26] [27] A plaintiff must have both standing and capacity to 

bring a lawsuit. Coastal Liquids Transp. L.P. v. Harris 

County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001). 

A party has capacity to sue when it has legal authority to 

act, regardless of whether it has a justiciable interest in 

the controversy. Nootsie, Ltd., 925 S.W.2d at 661.

Standing pertains to a person’s justiciable interest in a suit 

and is a component of subject-matter jurisdiction. See 

Tex. Air Control Bd., 852 S.W.2d at 443, 445–46.
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

Capacity is a party’s legal authority to go into court to 

prosecute or defend a suit. El T. Mexican Rests., Inc. v. 

Bacon, 921 S.W.2d 247, 249 (Tex.App.-Houston [1st 

Dist.] 1995, writ denied).

B. Analysis and Conclusion

[28] [29] Plaintiffs allege, and it is undisputed, that Plaintiffs 

sold their interest in the Willow partnership to Miller. 

Willow’s causes of action belong to the partnership, not to 

its partners. Absent an agreement otherwise, Willow’s 

assets, including any chose in action it held, would have 

transferred to Miller in the sale.5

*256 [30] Plaintiffs do not allege that they consensually 

acquired legal title to Willow’s causes of action—and 

thus possess exclusive authority (capacity) to prosecute 

and recover on Willow’s claims. That is, they do not 

allege that, despite the sale to Miller, they retained title to 

Willow’s causes of action, or otherwise acquired those 

assets by assignment. Indeed, Plaintiffs allege and argue 

the opposite: they allege that Coors conditioned its 

approval of the sale on Willow’s warranting it had not 

assigned its claims against Coors to a third party. Nauslar 

argues, but for that condition, he would have caused 

Willow to assign its claims to himself.6

Plaintiffs thus judicially admit they have do not own legal 

title to Willow’s causes of action. Houston First 

American Sav. v. Musick, 650 S.W.2d 764, 767 

(Tex.1983) (judicial admissions are assertions of fact, not 

pled in the alternative, in the live pleadings of a party). 

Plaintiffs do posit the “constructive assignee” theory by 

which to establish their alleged right to bring Willow’s 

causes of action. As a legal basis, they argue the warranty 

of no assignment violates BIFDL and thus should be 

declared void. We concluded above, as a matter of law, 

that the non-assignment clause does not violate BIFDL. 

Plaintiffs allege no other legal basis to avoid the effect of 

their having failed to acquire the legal right to prosecute 

and personally recover on Willow’s causes of action.

[31] [32] To bring suit and recover on a cause of action, a 

plaintiff must have both standing and capacity. El T. 

Mexican Rests., 921 S.W.2d at 250. It is recognized that a 

party may plead himself out of court, e.g., the plaintiff 

may plead facts which affirmatively negate his cause of 

action. Tex. Dept. of Corrections v. Herring, 513 S.W.2d 

6, 10 (Tex.1974) (citing Schroeder v. Tex. & Pacific Ry. 

Co., 243 S.W.2d 261 (Tex.Civ.App.-Dallas 1951, no 

writ)). Plaintiffs affirmatively negate that they own legal 

title to Willow’s claims, asserting instead a legal theory to 

overcome that fact, which we have rejected.7 We conclude 

that, on the state of the pleadings, Plaintiffs lack capacity 

to bring Willow’s partnership claims. Thus, the suit 

cannot proceed on those causes of action. We decline to 

remand for the trial court to engage in a futile inquiry. 

Wilson *257 v. Texas Parks and Wildlife Dept., 8 S.W.3d 

634, 635 (Tex.1999) (declining to remand for retrial of 

issue on which no evidence was offered; such “would be 

improper and, it appears, futile”); Sabine Offshore Serv., 

Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 

(Tex.1979) (declining to remand when futile and not in 

furtherance of judicial economy). We conclude the claims 

asserted “on behalf of” Willow were properly dismissed. 

Accordingly, we need not reach the issue whether 

Plaintiffs also lacked standing to pursue Willow’s claims. 

In addition, we need not reach other unrelated issues 

raised by Plaintiff.

IV. Attorney Fees under BIFDL

Coors asserts, on cross-appeal, that the trial court erred in 

denying Coors attorney fees under BIFDL. Coors argues 

it prevailed on the BIFDL claims and an award of 

attorney’s fees is mandatory to the prevailing party in an 

action brought under BIFDL.

Section 102.79(c) of BIFDL states,

The prevailing party to any action

under Subsection (a) of this section 

shall be entitled to actual damages, 

including the value of the 

distributor’s business, as specified 

in Section 102.77 of this code, 

reasonable attorney’s fees, and 

court costs.

TEX. ALCO. BEV.CODE ANN.. § 102.79(c) (emphasis 

added). Subsection (a) provides for a right of action for a 

“manufacturer or distributor” who is party to a 

distributorship agreement. If the defending manufacturer 

or distributor fails to comply with the statute, “the 

aggrieved manufacturer or distributor may maintain a 

civil action in a court of competent jurisdiction....” Id. § 

102.79(a) (emphasis added).

Plaintiff’s respond that, if they do not have standing under 

the statute, then the trial court lacks jurisdiction to award 

attorney’s fees, relying on Smith v. Tex. Improvement Co.,

570 S.W.2d 90, 92 n. 3 (Tex.App.-Dallas 1978, no writ)

(when court lacks jurisdiction, court cannot render 

judgment j.n.o.v.; only valid order is one of dismissal).

[33] [34] We have concluded that Plaintiffs lack standing to 

bring the BIFDL claims, either in their own right or “on 
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14

behalf of” Willow. Coors thus qualifies as a “prevailing 

party” within the meaning of section 102.79(c). Robbins 

v. Capozzi, 100 S.W.3d 18, 27 (Tex.App.-Tyler 2002, no 

pet.) (“prevailing party” successfully prosecutes or 

defends against an action; prevailing party is one who is 

vindicated). The BIFDL claims were brought under 

subsection (a) as section 102.79(c) requires. Further the 

fee award is mandatory, in that subsection (c) explicitly 

states the prevailing party “shall” recover reasonable 

attorney’s fees. See Town East Ford Sales, Inc. v. Gray,

730 S.W.2d 796, 812 (Tex.App.-Dallas 1987, no writ)

(fees mandatory under statutory provision stating 

“consumer who prevails shall be awarded court costs and 

reasonable and necessary attorney’s fees”).

The Plaintiffs’ reliance on the broad statements in Smith

is misplaced. That case did not address an issue involving 

a statutory provision mandating an award of fees. A trial 

court’s dismissal for lack of subject-matter jurisdiction 

does not prevent the concurrent award of attorney’s fees 

under the mandatory award provision. See Galveston 

County Comm’rs Court v. Lohec, 814 S.W.2d 751, 755 

(Tex.App.-Houston [ (14th Dist.) ] 1991), rev’d on other 

grounds, 841 S.W.2d 361 (Tex.1992) (under 

declaratory-judgment statute, trial court could award 

attorneys’ fees against party found to have no standing). 

Further, the statute is worded such that a manufacturer or 

distributor may maintain an action and the prevailing 

party in that *258 action shall recover reasonable attorney 

fees. Thus, the statutory text mandates the award of fees 

even if the action cannot be maintained, whether or not it 

is dismissed for lack of jurisdiction. Accordingly, we 

reverse the trial court’s order denying Coors attorney’s 

fees and remand that issue for further proceedings.

Accordingly, we AFFIRM the trial court’s dismissal of 

all of Plaintiffs claims. We REVERSE the trial court’s 

order denying Coors attorney’s fees under BIFDL and 

REMAND that issue for further proceedings.

Footnotes

1 Plaintiffs sued Coors for breach of contract and sued both Coors and Golden for conspiracy to terminate the Consolidation, 

negligence per se, and tortious interference. Nauslar also asserted that he, individually, was a third-party beneficiary to the 

Consolidation agreement. We refer to these causes of action collectively as Plaintiffs’ common-law actions.

2 The facts in the cited cases are not analogous: Allied Chemical Co. v. DeHaven, 824 S.W.2d 257 (Tex. App–Houston [14th Dist.] 

1992,) (exceptional circumstances made it inequitable to prevent resigning partner from bringing suit on behalf of partnership 

during winding-up phase); Tex. Westheimer Corp. v. 5647 Westheimer, 68 S.W.3d 15, 21–22 (Tex.App.-Houston [1st Dist.] 2001, 

pet. denied) (dispute over rights to profit participation owed to partnership by third party; suit instituted during winding-up phase 

of partnership) In today’s case, the partnership was not wound up, but as discussed below, Plaintiffs sold the partnership in its 

entirety.

3 It is undisputed that Willow itself has standing to pursue a BIFDL claim. Willow is not a party to this suit and Plaintiffs disavow 

that they are suing derivatively on any claims that belong to Willow.

4 Under section 102.71, “distributor” is defined as a person licensed under Section 64.01 or 65.01 of the Act, which sections in turn 

define the activities a licensed distributor is authorized to perform. TEX. ALCO. BEV.CODE ANN.. §§ 64.01, 65.01, 102.71.

5 Under the Texas Revised Limited Partnership Act (TRLPA), the partnership, not the partners, own the partnership’s property. 

TEX.REV.CIV. STAT. ANN. art. 6132a–7.01 (Vernon Supp.2004–05). When a business entity is acquired in its entirety by 

another, in the absence of specific terms to the contrary, both the liabilities and assets of the acquired company are transferred to 

the purchaser. Duke Energy Field Servs. Assets, L.L.C. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 68 S.W.3d 848, 850 

(Tex.App.-Texarkana 2002, pet. denied).

6 Plaintiffs plead, in their live pleading:

[A]s a condition for gaining its approval, and in tacit acknowledgement of its past wrongdoing, Coors extracted a purported 

release from Willow for claims against Coors arising out of its former, illegal conduct.

...

Coors’ release also contained the following provision requiring Nauslar to represent that he had not assigned Willow’s claim 

to any third party ...

If Coors had not conditioned approval of Nauslar’s sale of Willow and DEN to Miller of Dallas on execution of its release in 

its original form, and had instead agreed to allow assignments, Nauslar would have assigned to himself all rights possessed by 

Willow to sue Coors for the claims alleged in this petition.

7 In addition, at the end of the first hearing, the trial court ordered Plaintiffs to replead with much more specificity so that you make 
Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (2005)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15

it clear “who is suing for what, what wrong to whom, when, and causing whatever for what period of damages.... I’m probably 

going to grant [the pleas to jurisdiction] the next go round if you don’t make it clear....” See Harris County v. Sykes, 136 S.W.3d 

635, 639 (Tex.2004) (if plaintiff given opportunity to amend and still fails to allege facts sufficient to withstand plea to jurisdiction, 

court should dismiss action).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

331 S.W.3d 27

Court of Appeals of Texas,

Waco.

Robert D. SHIPLEY, Appellant,

v.

UNIFUND CCR PARTNERS, Appellee.

No. 10–09–00314–CV. | Oct. 13, 2010. | Rehearing 

Overruled Dec. 21, 2010.

Synopsis

Background: Assignee of right to collect on credit card 

account brought action against card holder. The 87th 

District Court, Freestone County, Patrick H. Simmons, J., 

entered judgment against card holder. Card holder 

appealed.

[Holding:] The Court of Appeals, Tom Gray, C.J., held 

that assignee did not have standing to bring action against 

card holder.

Reversed.

West Headnotes (6)

[1] Assignments

Nature and essentials in general

An assignment is simply a transfer of some right 

or interest.

2 Cases that cite this headnote

[2] Assignments

Nature and extent of rights of assignee in 

general

When an assignee holds a contractually valid 

assignment, that assignee steps into the shoes of 

the assignor and is considered under the law to 

have suffered the same injury as the assignors 

and have the same ability to pursue the claims.

2 Cases that cite this headnote

[3] Action

Persons entitled to sue

A court may presume the truth of allegations 

made in a party’s pleadings when determining 

standing.

Cases that cite this headnote

[4] Pleading

Scope of inquiry and matters considered in 

general

A court is not required to look solely to the 

pleadings but may consider evidence and must 

do so when necessary to resolve the 

jurisdictional issues raised.

Cases that cite this headnote

[5] Consumer Credit

Actions;  injunction

Assignee of right to collect on credit card 

account did not have ownership or title in the 

account, and therefore, did not have standing to 

bring action against card holder; assignee only 

had been assigned right to collect, and assignor 

explicitly retained title and ownership.

Cases that cite this headnote

[6] Action

Persons entitled to sue
Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Because standing denotes a party’s justiciable 

interest in a controversy, it is only the party 

whose primary legal right has been breached 

that may seek redress for that injury; without a 

breach of a legal right belonging to that party, 

that party has no standing to litigate.

Cases that cite this headnote

Attorneys and Law Firms

*27 Richard C. Jenkins, Dallas, for Appellant.

Abel Reyna, Jr., McCleskey Harriger & Brazill & Graf 

LLP, Lubbock, for Appellee.

Before Chief Justice GRAY, Justice REYNA, and Justice 

DAVIS.

*28 OPINION ON REHEARING

TOM GRAY, Chief Justice.

Robert Shipley appeals from the entry of a judgment 

against him for a debt on a credit card account. Shipley 

complains that the trial court erred by not dismissing the 

suit against him because Unifund CCR Partners lacked 

standing to bring the suit because the court lacked subject 

matter jurisdiction in that Unifund CCR Partners did not 

own the debt and therefore did not have standing to bring 

the action. Shipley also complains that the evidence was 

legally insufficient for the trial court to have granted a 

judgment against him and in favor of Unifund CCR 

Partners because there was no evidence that Shipley’s 

debt had been assigned to Unifund CCR Partners.

On original submission, this Court affirmed the judgment. 

See Shipley v. Unifund CCR Partners, No. 

10–09–00314–CV, 2010 Tex.App. LEXIS 4544 

(Tex.App.-Waco June 16, 2010). Upon Shipley’s timely 

motion for rehearing, we requested a response from 

Unifund CCR Partners, although Unifund has not done so. 

As authorized by Rule of Appellate Procedure 49.3, we 

issue this modified opinion after requesting the response. 

TEX.R.APP. P. 49.3. On reconsideration of the issues 

presented, we will reverse the judgment, dismiss this 

cause for lack of jurisdiction, and withdraw our prior 

opinion and judgment. Id.

Standing

Shipley contends that Unifund CCR Partners did not own 

any interest in the account in question, and therefore, they 

lacked standing to bring the suit against him. Citibank 

South Dakota, N.A. sold the account to Unifund Portfolio 

A., LLC. Unifund Portfolio A, LLC then assigned its 

rights to collect the account to Unifund CCR Partners, but 

retained the title and ownership of the account. In his 

brief to this Court, Shipley does not complain about the 

sale of the account from Citibank to Unifund Portfolio A, 

but of the assignment from Unifund Portfolio A to 

Unifund CCR Partners.

Standing, a necessary component of subject-matter 

jurisdiction, is a constitutional prerequisite to maintaining 

a suit under Texas law. Tex. Ass’n of Bus. v. Tex. Air 

Control Bd., 852 S.W.2d 440, 444–45 (Tex.1993). 

Whether a party has standing to pursue a claim is a 

question of law that we review de novo. Mayhew v. Town 

of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Standing refers to a party’s justiciable interest in a 

controversy. See Nootsie, Ltd. v. Williamson County 

Appraisal Dist., 925 S.W.2d 659, 661–62 (Tex.1996); 

Town of Fairview v. Lawler, 252 S.W.3d 853, 855 

(Tex.App.-Dallas 2008, no pet.). Only the party whose 

primary legal right has been breached may seek redress 

for an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 

242, 249 (Tex.App.-Dallas 2005, no pet.). Without a 

breach of a legal right belonging to that party, that party 

has no standing to litigate. Cadle Co. v. Lobingier, 50 

S.W.3d 662, 669–70 (Tex.App.-Fort Worth 2001, pet. 

denied). In reviewing standing on appeal, we construe the 

petition in favor of the plaintiff, and if necessary, review 

the entire record to determine if any evidence supports 

standing. See Tex. Air Control, 852 S.W.2d at 446.

[1] [2] An “assignment” is simply a transfer of some right 

or interest. See Pagosa Oil & Gas, L.L.C. v. Marrs & 

Smith P’ship, 323 S.W.3d 203, 211 (Tex.App.-El Paso 

2010, no pet. h.) (citing University of Texas Med. Branch 

at Galveston v. Allan, 777 S.W.2d 450, 452 

(Tex.App.-Houston [14th Dist.] 1989, no writ)). When an 

assignee holds a contractually valid assignment, that 

assignee steps into the shoes of the assignor and is 

considered *29 under the law to have suffered the same 

injury as the assignors and have the same ability to pursue 

the claims. Southwestern Bell Tel. Co. v. Mktg. on Hold 

Inc., 308 S.W.3d 909 (Tex.2010) (citing Holy Cross 
Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Church of God in Christ v. Wolf, 44 S.W.3d 562, 572 

(Tex.2001)).

Pleadings and Evidence in the Record

[3] [4] “It has long been the rule that a plaintiff’s good faith 

allegations are used to determine the trial court’s 

jurisdiction.” Eaves v. Unifund CCR Partners, 301 

S.W.3d 402, 404 (Tex.App.-El Paso 2009, no pet.) (citing 

Brannon v. Pac. Employers Ins. Co., 148 Tex. 289, 224 

S.W.2d 466, 469 (Tex.1949)). A court may presume the 

truth of allegations made in a party’s pleadings when 

determining standing. Id. (citing Tex. Ass’n of Bus., 852 

S.W.2d at 446; Brown v. Todd, 53 S.W.3d 297, 305 n. 3 

(Tex.2001) (“Because standing is a component of subject 

matter jurisdiction, we consider [it] as we would a plea to 

the jurisdiction, construing the pleadings in favor of the 

plaintiff.”)). “A court is not required to look solely to the 

pleadings but may consider evidence and must do so 

when necessary to resolve the jurisdictional issues 

raised.” State Dep’t of Crim. Justice v. Miller, 51 S.W.3d 

583, 587 (Tex.2001). However, the petition’s sole 

reference to Unifund CCR Partners’s ownership or 

standing to litigate is the statement that “Plaintiff is 

authorized to file this petition.” We do not find that this 

constitutes any evidence of standing.

[5] The case was solely decided based on business records 

filed by Unifund CCR Partners. The evidence presented 

in the business records affidavit is likewise unclear as to 

what interest beyond the right of collection that Unifund 

CCR Partners owns. Additionally, the trial court sustained 

Shipley’s hearsay objections to the affidavit and struck 

the content of the affidavit outside of the questions 

required to authenticate the business record as such. In 

fact, the assignment from Unifund Portfolio A, LLC to 

Unifund CCR Partners indicates that Unifund CCR 

Partners owns nothing. The pertinent language of the 

assignment states:

Assignor, for value received and in 

connection with the Agreement, 

transfers and assigns to Assignee 

all of Assignor’s rights in the 

Receivables, for collection 

purposes only, including 

conducting litigation in Assignee’s 

name, for those Receivables which 

Assignor owns or may acquire 

from time to time. Assignor shall 

retain title and ownership of such 

Receivables. The assignment is 

without recourse to Assignor and 

without warranty of any kind 

(including, without limitation, 

warranties pertaining to title, 

validity, collectibility (sic), 

accuracy or sufficiency of 

information, and applicability of 

any statute of limitations), except 

as stated in the Agreement or 

herein. (emphasis added)

[6] Because standing denotes a party’s justiciable interest 

in a controversy, it is only the party whose primary legal 

right has been breached that may seek redress for that 

injury. Eaves, 301 S.W.3d at 404. Without a breach of a 

legal right belonging to that party, that party has no 

standing to litigate. Id. (citing Cadle Co. v. Lobingier, 50 

S.W.3d 662, 669–70 (Tex.App.-Fort Worth 2001, pet. 

denied)). Unifund CCR Partners’s right is solely limited 

to taking whatever steps are necessary to collect a debt 

owned entirely by someone else, while holding no title, 

interest, or rights in anything else. We do not find that this 

is sufficient to establish that Unifund CCR Partners has 

standing to pursue this claim in its own name.

Cases that have found standing to exist all indicate that a 

finding of ownership of some type was made. Even the 

cases *30 cited to by Unifund CCR Partners demonstrate 

that some ownership interest was transferred by the 

assignor to the assignee. See Sprint Communications Co., 

L.P. v. APCC Services, Inc., 554 U.S. 269, 128 S.Ct. 

2531, 2541–43, 171 L.Ed.2d 424 (2008) (assignee with 

legal title to debt of a legal claim for money owed has 

standing to pursue the claim even if proceeds are to be 

entirely remitted to assignor); see also Eaves, 301 S.W.3d 

at 403–04 (pleadings and live testimony sufficiently 

demonstrated that Unifund owned the account in question 

to establish standing); Cartwright v. MBank Corpus 

Christi, N.A., 865 S.W.2d 546, 549–50 (Tex.App.-Corpus 

Christi 1993, writ denied) (note transferred to MBank 

making MBank the holder of the note); Schultz v. Aetna 

Business Credit, Inc., 540 S.W.2d 530, 531 

(Tex.Civ.App.-San Antonio 1976, no writ) (assignor 

transferred “all of its rights, title and interests” in the 

relevant instrument, any accompanying promissory note 

or notes, and all rights and remedies under said instrument 

or notes); Kelley v. Bluff Creek Oil Co., 298 S.W.2d 263, 

267 (Tex.Civ.App.-Fort Worth 1956) (assignment 

transferred all “right, title and interest” in a claim, “with 

full power and authority to collect and receipt therefore”), 

aff’d in part, and rev’d in part on other grounds, 158 Tex. 

180, 309 S.W.2d 208 (1958).

We find that without evidence of any ownership interest 

or title in the account that Unifund CCR Partners does not 

have standing to bring this suit and that the trial court did 
Shipley v. Unifund CCR Partners, 331 S.W.3d 27 (2010)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

not have subject matter jurisdiction over the action. We 

sustain issue one.

Conclusion

We conclude that Unifund CCR Partners did not have 

standing to file suit against Shipley. Therefore, because 

the trial court lacked subject matter jurisdiction, we 

reverse the judgment of the trial court and render 

judgment dismissing the case.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.