Flood, John C, of DC, Inc. John C. Flood., Melville Davis and Robert Smiley

AFFIRM; and Opinion Filed August 2, 2013.

In The
Court of Appeals
Fifth District of Texas at Dallas

No. 05-12-00307-CV

JOHN C. FLOOD OF DC, INC. JOHN C. FLOOD, INC., AND MELVILLE DAVIS,
Appellants
V.
SUPERMEDIA, L.L.C., Appellee

On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-16218

OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Myers
Appellants John C. Flood of DC, Inc., John C. Flood, Inc., and Melville Davis appeal

from summary judgments granted in favor of appellee SuperMedia, L.L.C. In two issues,

appellants argue (1) the trial court erred by granting summary judgment for SuperMedia for

breach of contract without evidence SuperMedia was entitled to payment under any of the

contracts; and (2) the trial court erred by granting summary judgment against Melville Davis for

breach of a contract to which he was not a party. We affirm.

BACKGROUND AND PROCEDURAL HISTORY

Appellee SuperMedia, L.L.C., sued appellants John C. Flood of DC, Inc., J.C. Flood, Inc.

a/k/a John C. Flood, Inc., Melville Davis, individually, and Robert Smiley, individually, for

breach of contract and quantum meruit to collect amounts allegedly due for print media and

internet advertising services that appellee provided to appellants. Appellants filed an original
answer containing a general denial and asserting SuperMedia lacked capacity to sue, and that

appellants (defendants) Davis and Smiley were not liable in the capacity in which they were

sued. Appellants, however, did not verify their answer.

Appellee filed both traditional and no-evidence motions for summary judgment, to which

appellants timely responded. Appellants’ response included affidavits from Davis and Smiley.

Appellee filed written objections to appellants’ summary judgment evidence, challenging

statements in the Davis and Smiley affidavits. The trial court sustained all of the objections, and

appellants do not challenge the trial court’s ruling

On the morning of the hearing on appellee’s traditional and no-evidence motions for

summary judgment, less than an hour before the scheduled start of the hearing, appellants filed

an amended answer that contained a verified denial of appellee’s lack of capacity to sue and that

Davis and Smiley were not liable in the capacity in which they were sued. The amended answer

also alleged the affirmative defense of agency. The trial court granted appellee’s no-evidence

summary judgment motion on appellants’ affirmative defenses of estoppel, prior breach of

contract, failure of consideration, fraud, laches, and statue of frauds, and granted a partial

summary judgment that John C. Flood of DC, Inc. and Melville Davis owed appellee

$340,838.96, and that John C. Flood, Inc. owed appellee $233,649.56.1 The trial court’s order

states that appellee would have to file an election choosing whether the final judgment would be

against John C. Flood of DC, Inc. or Melville Davis for the $340,838.96.

The trial court’s order also states that liability for appellee’s attorney’s fees and for the

additional damages sought against John C. Flood of DC and Melville Davis would have to be

tried. Appellee non-suited its remaining claims for damages and attorney’s fees and elected to

take a final judgment against Melville Davis rather than John C. Flood of DC, Inc. The trial

1
Appellee nonsuited defendant Robert Smiley.

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court entered a final judgment against Davis for $340,838.96 and against John C. Flood, Inc. for

$233,649.56. In both its partial summary judgment order and the final judgment, the trial court

states that it considered the “pleadings timely filed.”

DISCUSSION

APPELLEE’S STANDING TO SUE

In their first point of error, appellants argue the trial court erred by granting summary

judgment for appellee based on breach of contract because there is no evidence appellee was

entitled to payment under any of the contracts. Appellants specifically argue that appellee failed

to establish its standing to bring suit, that appellee’s lack of standing to bring suit for breach of

contract negates an essential element of that cause of action, and that appellee cannot rely on

quantum meruit as an alternative theory of recovery. Appellee responds that it does indeed have

standing to bring this suit, but that appellants confuse “standing” and “capacity,” and that

appellants waived any argument about appellee’s capacity to sue or be sued because they did not

timely file a sworn denial pursuant to rule 93 of the Texas Rules of Civil Procedure.

Standard of Review

We review the trial court’s summary judgment de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We apply the well-established standards for

reviewing summary judgments. See TEX. R. CIV. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310–11 (Tex. 2009) (no-evidence summary judgment standards of review); Nixon v.

Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985) (traditional summary judgment

standards of review).

A no-evidence motion for summary judgment under rule 166a(i) must challenge specific

elements of the opponent’s claim or defense on which the opponent will have the burden of proof

at trial. TEX. R. CIV. P. 166a(i). The opponent must then present summary judgment evidence

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raising a genuine issue of material fact to support the challenged elements. Id. In reviewing a

no-evidence summary judgment motion, we “review the evidence presented by the motion and

response in the light most favorable to the party against whom the summary judgment was

rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not.” Timpte Indus., 286 S.W.3d at 310 (citing

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)); City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.

2002)). A genuine issue of material fact exists if the non-movant produces more than a scintilla

of evidence supporting the existence of the challenged element. Fort Worth Osteopathic Hosp.,

Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).

A motion for summary judgment on traditional grounds must show there is no genuine

issue as to a specified material fact and that, as a result, the moving party is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a(c). Thus, for a defendant to prevail on a traditional

motion for summary judgment, he must either disprove at least one element of the plaintiff’s

claim as a matter of law, or conclusively establish all elements of an affirmative defense.

Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex. 1996); Kalyanaram v.

Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.––Dallas 2007, pet. denied). If the movant

meets its burden, then and only then must the non-movant party respond and present evidence

raising a fact issue as to the material facts in question. See Rhone–Poulenc, Inc. v. Steel, 997

S.W.2d 217, 222–23 (Tex. 1999).

Standing and Capacity

A party must have both standing to sue and capacity to sue. Austin Nursing Ctr., Inc. v.

Lovato, 171 S.W.3d 845, 848 (Tex. 2005). “‘Texas courts have had considerable difficulty in

defining the relationship of the twin doctrines of capacity and standing.’” Id. at 848 n.1 (quoting

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5 WILLIAM V. DORSANEO III, TEXAS LITIGATION GUIDE § 70.06[2] (2005)). “The issue of

standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a

‘justiciable interest’ in its outcome, whereas the issue of capacity ‘is conceived of as a procedural

issue dealing with the personal qualifications of a party to litigate.’” Austin Nursing Ctr., 171

S.W.3d at 849 (quoting 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, AND MARY KAY KANE,

WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1559, at 441 (2d ed.

1990)). “A plaintiff has standing when it is personally aggrieved, regardless of whether it is

acting with legal authority; a party has capacity when it has the legal authority to act, regardless

of whether it has a justiciable interest in the controversy.” Austin Nursing Ctr., 171 S.W.3d at

848–49 (quoting Nootsie Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex.

1996)); see also Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787

(Tex. App.—Houston [1st Dist.] 1994, writ denied). Standing is a component of subject matter

jurisdiction and can never be waived. Austin Nursing Ctr., 171 S.W.3d at 849; Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 443, 446 (Tex. 1993). Unlike standing, however, “an

argument that an opposing party does not have the capacity to participate in a suit can be

waived.” Nootsie, 925 S.W.2d at 662 (citing TEX. R. CIV. P. 93).

Standing

In Austin Nursing Center, the Texas Supreme Court explained that “standing” requires

there be “a real controversy between the parties” that “will be actually determined by the judicial

declaration sought.” Austin Nursing Ctr., 171 S.W.3d at 849 (quoting Nootsie, 925 S.W.2d at

662). In addition, to have standing a party must be “personally aggrieved” and the injury

“concrete and particularized, actual or imminent, not hypothetical.” Prize Energy Res., L.P. v.

Cliff Hoskins, Inc., 345 S.W.3d 537, 550 (Tex. App.––San Antonio 2011, no pet.); see also

Austin Nursing Ctr., 171 S.W.3d at 848. A party’s standing is determined at the time suit is

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filed, and we look to the facts alleged in the petition and may consider other evidence in the

record, if necessary, to resolve the question. Prize Energy Res., 345 S.W.3d at 550; see Everett

v. TK-Taito, L.L.C., 178 S.W.3d 844, 853 (Tex. App.––Fort Worth 2005, no pet.). An appellate

court considering standing for the first time on appeal must both construe the petition in favor of

the plaintiff and, if necessary, review the entire record to determine “if any evidence supports

standing.” Tex. Ass’n of Bus., 852 S.W.2d at 446.

Is Appellants’ “Standing” Complaint Actually a Complaint About “Capacity”?

Appellants’ argument is that appellee failed to establish it has standing to sue for

appellants’ alleged breaches of the advertising contracts. Appellants cite our opinion in OAIC

Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 738 (Tex. App.––Dallas

2007, pet. denied), where we stated that “[i]n order to establish standing to maintain a breach of

contract action, a plaintiff must show either third-party beneficiary status or privity.” In OAIC,

we added that, for purposes of standing, privity is established by proving the defendant was a

party to an enforceable contract with either the plaintiff or someone who assigned its cause of

action to the plaintiff. Id. Appellants insist they are challenging standing, not capacity, that

there is no evidence here of any privity of contract between SuperMedia and any of the

appellants, and no evidence SuperMedia may sue to enforce the contracts as a third-party

beneficiary. In their reply brief, appellants further explain:

Although they pleaded a lack of capacity, the defendants do not contend
that SuperMedia lacks the legal authority to bring suit, or that Melville Davis
cannot legally be sued as an individual. They are clearly contending that there is
no privity of contract between the parties and that SuperMedia failed to prove it
was a third-party beneficiary or an assignee of the contracts. These are issues of
standing, not capacity

(Emphasis added).

But appellants confuse standing with capacity. This Court has stated that a challenge to a

party’s privity of contract is a challenge to capacity, not standing, and requires compliance with

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rule 93 of the Texas Rules of Civil Procedure. Landry’s Seafood House-Addison, Inc. v. Snadon,

233 S.W.3d 430, 433-34 (Tex. App.—Dallas 2007, pet. denied) (citing King-Mays v. Nationwide

Mut. Ins. Co, 194 S.W.3d 143, 145 (Tex. App.—Dallas 2006, pet. denied)). “While the question

of whether a party is entitled to sue on a contract is often informally referred to as a question of

‘standing,’ it is not truly a standing issue because it does not affect the jurisdiction of the court; it

is, instead, a decision on the merits.” Heartland Holdings Inc. v. U.S. Trust Co. of Tex., 316

S.W.3d 1, 6-7 (Tex. App.—Houston [14th Dist.] 2010, no pet.); see also James M. Clifton, I, Inc.

v. Premillenium, Ltd., No. 05-08-01528-CV, 2010 WL 2089655 at *2 (Tex. App.—Dallas may

26, 2010, no pet.) (mem. op.). “When it is established that a breach of contract plaintiff lacks

entitlement to sue on a contract, the proper disposition may be summary judgment on the merits,

but it is not dismissal for want of jurisdiction.” Heartland, 316 S.W.3d at 7.

Although lawyers and courts occasionally state informally that an entity has no
‘standing’ to enforce a contract if that entity is not a party to the contract or a
third-party beneficiary of it, such an entity’s inability to sue goes to the merits and
does not deprive courts of jurisdiction.

Yatsuda Fire & Marine Ins. Co. v. Criaco, 225 S.W.3d 894, 898 (Tex. App.—Houston [14th

Dist.] 2007, no pet.). We thus agree with appellee that, in the case before us, the issue is not

whether appellee has standing to bring this action, but instead whether it can recover in the

capacity in which it sued, i.e., as SuperMedia. See Nine Greenway, 875 S.W.2d at 787 (whether

landlord was successor in interest to original landlord was issue of “capacity to sue,” not

“standing,” and tenants’ failure to file verified pleading resulted in waiver of landlord’s capacity

to sue, and landlord was not required to prove capacity in order to recover on claim against

tenants for breach of commercial lease agreement).2

2
While our OAIC decision cited by appellants suggests privity of contract raises an issue of standing, the defendants in OAIC filed a
plea to the jurisdiction, and one of the issues on appeal was whether the trial court lacked jurisdiction to enter judgment against defendants and in
favor of the plaintiff for breach of contract because the plaintiff lacked standing to bring suit for breach of the agreement. See OAIC, 234 S.W.3d
at 731 n.2, 734-35. In the present case, no plea to the jurisdiction was filed and neither party on appeal challenges the trial court’s jurisdiction.

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 SuperMedia Has Standing to Sue

We further conclude that, were we to address the issue of standing, the pleadings and the

summary judgment evidence show SuperMedia has standing to bring this lawsuit. Appellee’s

first amended petition alleges that “SuperMedia, LLC, formerly known as Idearc Media LLC,

formerly known as Idearc Media Corp., [and] formerly known as Verizon Directories Corp.

(‘Plaintiff’ or ‘SuperMedia’) is a Delaware limited liability corporation doing business in the

State of Texas.” Idearc Media is the entity named on the contracts. Each of the names by which

appellee did business is referred to in the first amended petition as, collectively, “Plaintiff” or

“SuperMedia.” The first amended petition further alleges appellants executed contracts with

SuperMedia, that appellants agreed to pay SuperMedia for the publication of advertising

services, that SuperMedia provided the services, that appellants did not pay SuperMedia for

those services, and that appellants are thus indebted to SuperMedia. Appellee neither alleged nor

attempted to prove it was an assignee of Idearc Media’s interests or a third-party beneficiary of

its contracts––it specifically pleaded SuperMedia was formerly known as Idearc Media.

Furthermore, appellants’ response to appellee’s motions for summary judgment states that

appellees “actually owe Supermedia nothing as the ads it peddled to [appellees] are all defective

and objectively misleading to potential customers” (emphasis added), and that “Supermedia

breached the contract by failure to print ads without errors which caused [appellees’] injuries”

(emphasis added). See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex.

2001) (holding that party’s statement of fact in a summary judgment response qualified as a

judicial admission that a trial court properly considered in granting summary judgment against

the party); Transcontinental Realty Invs., Inc. v. John T. Lupton Trust, 286 S.W.3d 635, 645-46

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(Tex. App.––Dallas 2009, no pet.) (treating statement in a summary judgment response as a

judicial admission).3

As for the summary judgment record, attached to appellee’s traditional motion for

summary judgment is an affidavit from Nancy Logue, who was responsible for managing

SuperMedia’s accounts receivable. Her affidavit alleges that the contracts are SuperMedia’s

business records, that appellants are customers of SuperMedia, that Supermedia published

advertising in compliance with the terms of the contracts at appellants’ request in return for an

agreement to pay for the advertising, that appellants had accounts with SuperMedia, and that

appellants owed SuperMedia money on those accounts. Therefore, construed in the light most

favorable to SuperMedia, the pleadings and evidence show a real controversy exists between the

parties that will be actually determined by the judicial declaration sought. See Austin Nursing

Ctr., 171 S.W.3d at 849.

Verified Pleas of Capacity to Sue or be Sued

Turning to the requirements of verified pleas, rule 93 of the Texas Rules of Civil

Procedure provides that pleadings asserting certain defenses shall be verified by affidavit “unless

the truth of such matters appear[s] of record.” TEX. R. CIV. P. 93; Haase v. Gim Res., Inc., No.

01-09-00696-CV, 2010 WL 3294247, at *4 (Tex. App.––Houston [1st Dist.] Aug. 19, 2010, no

pet.) (mem. op. on reh’g). Among other requirements, the rule provides that a pleading must be

verified by affidavit if it alleges the plaintiff does not have the legal capacity to sue or that the

defendant lacks the legal capacity to be sued; that the plaintiff is not entitled to recover in the

capacity in which it sues, or that the defendant is not liable in the capacity in which it is sued; or

3
Appellee also contends certain statements found in the Davis and Smiley affidavits that, for example, they spoke to the “Plaintiff’s
representative” about the advertising, “SuperMedia was at all times in control of the ads,” “SuperMedia breached its agreement,” and that “[t]he
Plaintiff and its advertising employees must be incredibly stupid.” The trial court struck these (and other) parts of the defendants’ affidavits, and
the court’s ruling is not being challenged on appeal. Accordingly, in our analysis we do not consider those parts of the affidavits that the record
shows the trial court struck. See Esty v. Beal Bank, S.S.B., 298 S.W.3d 280, 294 (Tex. App.––Dallas 2009, no pet.) (“Evidence which has been
excluded by written order or ruling of the trial court is not part of the summary judgment evidence to be considered.”).

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if the pleading alleges there is a defect in the parties, plaintiff or defendant. TEX. R. CIV. P.

93(1), (2), (4); see Sixth RMA Partners, LP v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003) (“When

capacity is contested, Rule 93 requires that a verified plea be filed unless the truth of the matter

appears of record.”); Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988) (per curiam)

(“Rule 93(2) requires that a verified plea be filed anytime the record does not affirmatively

demonstrate the plaintiff’s or defendant’s right to bring suit or be sued in whatever capacity he is

suing.”). Rule 93’s application “is not limited to cases of representative capacity only. The rule

means just what it says.” Pledger, 762 S.W.2d at 146. The Texas Supreme Court has “not

hesitated in previous cases to hold that parties who do not follow Rule 93’s mandate waive any

right to complain about the matter on appeal.” Nootsie, 925 S.W.2d at 662; see also Nine

Greenway, 875 S.W.2d at 787 (“A party who fails to raise the issue of capacity through a

verified plea waives that issue at trial and on appeal.”); King-Mays, 194 S.W.3d at 145 (alleged

tortfeasor’s failure to file verified denial of insurer’s capacity to sue as subrogee resulted in

waiver). In addition, when a case falls within one of the categories defined by rule 93, a general

denial is insufficient; the defendant must provide a verified denial, supported by an affidavit

based on personal knowledge. See TEX. R. CIV. P. 93; Roark v. Stallworth Oil & Gas, Inc., 813

S.W.2d 492, 494 (Tex. 1991); Bluebonnet Fin. Assets v. Miller, 324 S.W.3d 603, 609 (Tex.

App.––El Paso 2010, no pet.).

Time Limits for Filing Amended Pleadings

Rule 63 of the Texas Rules of Civil Procedure provides that amended pleadings may be

filed within seven days of trial only with leave of court. TEX. R. CIV. P. 63. A summary

judgment proceeding is a trial within the meaning of rule 63. Goswami v. Metro. Sav. & Loan

Ass’n, 751 S.W.2d 487, 490 (Tex. 1988); McIntyre v. Wilson, 50 S.W.3d 674, 684 (Tex. App.––

Dallas 2001, pet. ref’d). Texas appellate courts apply a liberal interpretation in determining

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whether a trial court granted leave to late-file an amended pleading. Wilson v. Korthauer, 21

S.W.3d 573, 577 (Tex. App.––Houston [14th Dist.] 2000, pet. denied). On appeal, we will

presume the trial court granted leave to file a late pleading even though the filer failed to request

leave when (1) the record fails to show that the trial court did not consider the amended pleading;

and (2) there is not a sufficient showing of surprise or prejudice on the part of the opposing

party. Goswami, 751 S.W.2d at 490.

The first prong of Goswami is satisfied if the amended petition was part of the record

before the trial court and the judgment states that the trial court considered all the pleadings on

file. McIntyre, 50 S.W.3d at 684; Wilson, 21 S.W.3d at 578. If both of these questions are

answered in the affirmative, the first prong of the test is met. Wilson, 21 S.W.3d at 578. But

when the judgment does not affirmatively state that the court considered “all pleadings,” the

Goswami presumption does not apply. See, e.g., DMC Valley Ranch, L.L.C. v. HPSC Inc., 315

S.W.3d 898, 903 (Tex. App.—Dallas 2010, no pet.) (drawing distinction between judgments

referencing “all of the pleadings” and those referencing all “timely filed” pleadings); Domizio v.

Progressive Co. Mut. Ins. Co., 54 S.W.3d 867, 875-76 (Tex. App.—Austin 2001, pet. denied)

(summary judgment order states that it examined “the pleadings timely filed,” and thus an

amended pleading filed the day of the summary judgment motion was not considered by the trial

court); McIntyre, 50 S.W.3d at 684 (trial court did not consider a late-filed pleading in part

because the order does not recite the trial court considered “all the pleadings on file”).

Application of Rules 63 and 93

Appellants filed their “Original Answer, Response to Admissions, Requests for

Disclosures [sic]” on January 28, 2011, specifically denying “Plaintiff has the legal capacity to

sue or recover in the capacity in which it sues,” and asserting that “Defendants Davis and Smiley

are not liable in the capacity in which they are sued.” Appellants, however, did not verify their

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original answer with a sworn denial. See TEX. R. CIV. P. 93. The general denial in appellants’

original answer was insufficient to raise the issue of appellee’s lack of capacity to sue. See

Bluebonnet, 324 S.W.3d at 609. Appellants’ amended answer with a verified denial that

“Plaintiff has the legal capacity to sue or recover in the capacity in which it sues,” that “Davis

and Smiley are not liable in the capacity in which they are sued,” and alleging the affirmative

defense of agency on behalf of the individual defendants, was filed at 8:28 a.m. on August 16,

2011. This was forty-seven minutes before the scheduled start of the hearing on appellee’s

motions for summary judgment. But there is no indication in the record appellants ever sought

or obtained leave of court to file their amended answer on the date of the hearing. See TEX. R.

CIV. P. 63. Moreover, neither the partial summary judgment order nor the final judgment state

that the trial court considered all of the pleadings on file. On the contrary, they state that the

court considered the “pleadings timely filed.” By reciting that it considered the “timely filed”

pleadings, not “all of the pleadings,” the trial court indicated it did not consider appellants’

amended answer in the course of deciding appellee’s summary judgment motions. See, e.g.,

DMC Valley Ranch, 315 S.W.3d at 903.

Trial by Consent

Appellants, however, rely on Basic Capital Mgmt. v. Dynex Comm., Inc., 348 S.W.3d

894, 899 n.19 (Tex. 2011) (citing Roark, 813 S.W.2d at 495) to argue appellee’s assertions

regarding the lack of a rule 93 verified denial are waived because the issue was tried by consent

in the summary judgment proceeding. “Trial by consent may be appropriate in some limited

summary judgment contexts.” PAS, Inc. v. Engel, 350 S.W.3d 602, 610 (Tex. App.––Houston

[14th Dist.] June 28, 2011, no pet.); see also Martin v. New Century Mortg. Co., 377 S.W.3d 79,

83 n.2 (Tex. App.––Houston [1st Dist.] 2012, no pet.) (when claims are tried by consent, court

treats them as if they had been raised by the pleadings). Unpleaded affirmative defenses can

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serve as a basis for summary judgment when the defenses are raised in the summary judgment

motion and the opposing party does not object to lack of a proper pleading in either a written

response to the motion or before rendition of judgment. See Roark, 813 S.W.2d at 495; see also

Basic Capital, 348 S.W.3d at 899 (substance of defendant’s assertion that plaintiffs could not

recover for breaches of agreements because they were not parties to agreements was addressed in

cross-motions for summary judgment). This rule can include situations where an unpleaded

affirmative defense is raised for the first time in the response to a motion for summary judgment

and the movant responds to the defense on the merits without objecting. See Via Net v. TIG Ins.

Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam) (“When [the plaintiff-nonmovant] asserted

the discovery rule for the first time in its summary judgment response, [the defendant-movant]

had two choices: it could object that the discovery rule had not been pleaded, or it could respond

on the merits and try the issue by consent.”).

The problem with appellants’ argument is that their response to appellee’s summary

judgment motions did not raise the issue of SuperMedia’s lack of capacity to bring suit. See

TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written motion,

answer or other response shall not be considered on appeal as grounds for reversal.”); Stiles v.

Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“[W]e hold that a summary judgment

cannot be affirmed on grounds not expressly set out in the motion or response.”). Appellants

raised lack of capacity in their original petition, but that pleading was unverified, and their

amended answer, which was verified, was filed less than an hour before the scheduled start of the

summary judgment hearing––there is no indication appellants ever sought or obtained leave of

court. Consequently, we cannot conclude the issue of SuperMedia’s lack of capacity to sue was

tried by consent. See RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex. App.––

Houston [1st Dist.] 1997, pet. denied) (“[Trial by consent] is not intended to establish a general

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rule of practice and should be applied with care, and in no event in a doubtful situation.”).

Because appellants failed to timely file a verified pleading, they waived the issue of appellee’s

lack of capacity to sue, and it was not necessary that appellee prove its capacity. We overrule

appellants’ first issue.

MELVILLE DAVIS’S PERSONAL LIABILITY

In their second issue, appellants argue the trial court erred by granting summary judgment

against Davis for breaching a contract “to which he was not a party.” Appellants contend that

“[b]y signing the contracts as ‘CEO,’ Davis gave notice he was signing the contracts as an agent

for another,” and that, as a result, he should not be held individually liable. Appellee responds

that (1) Davis failed to timely file a verified denial that he is not liable in the capacity in which

he was sued and did not timely plead the affirmative defense of agency; and (2) alternatively,

failed to meet his summary judgment burden on the affirmative defense of agency.

As we discussed earlier, appellants’ original answer, which denied Davis was liable in the

capacity in which he was sued, was unverified. See TEX. R. CIV. P. 93. Additionally, appellants’

amended and verified answer denying Davis was individually liable, and alleging agency on his

behalf, was filed less than an hour before the start of the summary judgment hearing, and there is

no indication in the record appellants ever sought or obtained leave of court. See TEX. R. CIV. P.

63. The trial court’s order granting partial summary judgment and the final judgment both state

the court considered the “pleadings timely filed.” See, e.g., DMC Valley Ranch, 315 S.W.3d at

903. Appellants cite Davis’s affidavit, appended to appellants’ response to the motions for

summary judgment, for his assertion that he did not agree to be personally liable under the

contracts. That paragraph of the affidavit, however, was (among other parts of the affidavit)

objected to by appellee and struck by the trial court. The court’s ruling is not being challenged

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on appeal. We may not consider stricken evidence when reviewing a summary judgment. See

Esty, 298 S.W.3d at 294.4

Appellants do not dispute the lack of a timely verified denial, but they cite the statement

in rule 93 that pleadings do not need verification where “the truth of such matters appear[s] of

record,” see TEX. R. CIV. P. 93, and argue Davis was not required to verify his denial that he was

not a party to the contracts because “the truth of that contention was proven in the record.”

“There is a dearth of case law in Texas dealing with the ‘of record’ exception to the verification

requirement in Rule 93.” Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 116 (Tex. App.––Corpus

Christi 1995, writ denied). However, in InvestIN.com Corp. v. Europa Int’l, Ltd., we concluded

that an unverified supplemental answer properly raised the question of a party’s individual

liability when the “unambiguous language” of a settlement agreement included in the summary

judgment record demonstrated the party did not assume personal liability. 293 S.W.3d 819, 825

(Tex. App.––Dallas 2009, pet. denied). Because the “matter of Brigg’s capacity appear[ed] of

record in the summary judgment evidence,” we did not require verification of the supplemental

answer as a prerequisite to addressing the capacity question on appeal. Id.; see Cantu, 910

S.W.2d at 117 (“[We] hold that if the asserted defect in parties appears of record in the summary

judgment evidence in the case at bar, no verification is necessary.”); Haase, 2010 WL 3294247,

at *4 (summary judgment record did not contain uncontroverted evidence appellant lacked

capacity to sue); see also Harkness v. Harkness, 709 S.W.2d 376, 378 (Tex. App.—Beaumont

1986, writ dism’d) (admissions made in answers to interrogatories and requests for admissions

“appear of record” for purposes of rule 93); Howell v. Thompson, No. 11-09-00340-CV, 2011

4
Moreover, an affidavit attached to a response to a motion for summary judgment cannot constitute a verified denial. See Hall v.
Stephenson, 919 S.W.2d 454, 465 (Tex. App.—Ft. Worth 1996, writ denied) (a summary judgment affidavit is not a pleading); Freedman v.
Briarcroft Property Owners, Inc., 776 S.W.2d 212, 215 (Tex. App.—Houston [14th Dist.] 1989, writ denied) (affidavit filed in connection with
summary judgment motion did not satisfy requirement of verified plea because summary judgment affidavits do not constitute part of the live
pleadings of a case); Barth v. Hoffman-La Roche, Inc., No. 05-01-00302-CV, 2002 WL 1225684 at * 3 (Tex. App.—Dallas 2002, no pet.) (not
designated for publication) (a summary judgment response cannot establish a new cause of action or amend a live pleading).

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WL 664763, at *1 (Tex. App.––Eastland Feb. 24, 2011, no pet.) (mem. op.) (per curiam)

(appellee’s pleading did not need to be verified because status as legal guardian “appear[ed] of

record;” appellant admitted in original petition filed in trial court that appellee had been

appointed legal guardian and order appointing appellee was attached to original petition).

Unlike InvestIN.com, the summary judgment record in this case does not contain

uncontroverted or “unambiguous” evidence Davis was not liable in the capacity in which he was

sued. Appellants point out that each agreement is signed by Davis as “CEO.” But though Davis

signed the contracts as “CEO,” his signature does not include the name of the company for

which he was signing, and the contracts reference the “business name” of the company being

advertised as, at various times, “Flood, John C Plumbing & Heati” [sic], “Flood, John C

Plumbing & Heating,” “Flood John C. Plumbing & Heating,” and “John C. Flood Inc.”5 It is

well-settled that an agent seeking to avoid personal liability on a contract must plead and prove

that the true name of the principal was fully disclosed to the other contracting party at the time

the parties entered into the contract. See Southwestern Bell Media, Inc. v. Trepper, 784 S.W.2d

68, 71 (Tex. App.––Dallas 1989, no writ); see also Wright Grp. Architects–Planners, P.L.L.C. v.

Pierce, 343 S.W.3d 196, 200 (Tex. App.––Dallas 2011, no pet.); Patel v. Creation Const., Inc.,

No. 05-11-00759-CV, 2013 WL 1277874, at *1 (Tex. App.––Dallas Feb. 27, 2013, no pet.)

(mem. op.). The burden is not on the party dealing with the agent to discover the existence of the

relationship merely because he had a means of discovering the agent’s representative capacity. A

to Z Rental Ctr. v. Burris, 714 S.W.2d 433, 435 (Tex. App.––Austin 1986, writ ref’d n.r.e.);

Anderson v. Smith, 398 S.W.2d 635, 637 (Tex. Civ. App.––Dallas 1965, no writ). Actual

5
It is undisputed that the true names of the corporate appellants are “John C. Flood of DC, Inc.” and “John C. Flood, Inc.”

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knowledge of the existence and identity of the principal is required; the contracting party’s

suspicion is not sufficient. Trepper, 784 S.W.2d at 71.6

To support this argument, appellants cite Nancy Logue’s affidavit, attached to appellee’s

traditional motion for summary judgment, as evidence “SuperMedia’s own business records

showed that John C. Flood of DC was the customer in the contracts signed by Davis as CEO,”

and that “[i]t does not matter how [SuperMedia] acquired this knowledge, although it is

reasonable to infer that Davis simply told the sales representative.” Yet even if SuperMedia

learned the identity of Davis’s principal, the summary judgment evidence here does not show

when or how it acquired that knowledge. See Posey v. Broughton Farm Co., 997 S.W.2d 829,

832 (Tex. App.––Eastland 1999, pet. denied) (we look to time the parties entered into the

agreement to determine if there was sufficient disclosure of an agency relationship).

Additionally, and more precisely, Logue did not identify the “customer” in her affidavit but did

connect Davis to the account stating it was the “account of Defendants John C. Flood of DC and

Melville Davis.” Nor do the records, the contracts, attached to Logue’s affidavit identify a

“customer.” We therefore conclude Davis’s lack of liability in the capacity in which he was sued

does not “appear of record” in the summary judgment evidence. As a result, we do not consider

Davis’s capacity argument on appeal. See Nootsie, Ltd., 925 S.W.2d at 662. We overrule

appellants’ second issue.

We affirm the trial court’s judgment.

/Lana Myers/
LANA MYERS
JUSTICE

6
Appellants cite Trepper for the proposition that “signing contract as ‘president’ sufficient notice of agency,” but, in fact, we noted
that “[e]ven though by signing as president, Trepper may have fulfilled his first duty, he, nevertheless, failed in his second duty because he did
not disclose his true principal. Failing to fulfill both of his duties necessary to avoid personal liability, Trepper assumed personal liability when
he signed the contract.” Trepper, 784 S.W.2d at 72. In addition, there was no question Trepper properly pleaded agency as an affirmative
defense. See id. at 70.

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOHN C. FLOOD OF DC, INC., JOHN C. On Appeal from the 162nd Judicial District
FLOOD, INC., AND MELVILLE DAVIS, Court, Dallas County, Texas
Appellants Trial Court Cause No. DC-10-16218.
Opinion delivered by Justice Myers.
V. Justices Lang and Evans participating.

SUPERMEDIA, L.L.C., Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellee SUPERMEDIA, L.L.C., recover its costs of this
appeal from appellants JOHN C. FLOOD OF DC, INC., JOHN C. FLOOD, INC., and
MELVILLE DAVIS.

Judgment entered this 2nd day of August, 2013.

/Lana Myers/
LANA MYERS
JUSTICE

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