Dallas Palms LLC v. Jones involved claims that were dismissed because of a failure to provide a certificate of merit, when the movant did not establish that he was, in fact, a licensed architect. The statement of facts describes the various proof deficiencies, which could likely have been avoided with a straightfoward affidavit on the subject. No. 05-23-00156-CV (Nov. 8, 2024) (mem .op.).

Hyde v. GACP Fin. Co., LLC reversed a $1.7 million judgment because of a pleading-amendment problem. The Fifth Court found that the trial court erred by allowing GACP to amend its petition during trial, to argue for the first time that it sought damages as an agent on behalf of another entity, rather than its own damages. The Court said:  “Fair notice is not notice to dig deeper to determine the parties’ claims and damages,” and detailed why GACP’s second amended petition did not give adequate notice of the agency relationship it later claimed.

As a fallback, GACP argued that this challenge failed for lack of a special exception or a verified denial. The Court held that appellants were justified in relying on the second amended petition (which didn’t assert agency), and that the appellants had no reason to file a verified denial about capacity when the relevant agency claim wasn’t in the pleading in the first place. The Court concluded that the appellants timely raised the capacity issue as soon as it became apparent at trial. No. 05-23-00873-CV, Oct. 24, 2024 (mem. op.).

In Longhorn Creek Ltd. v. Gardens of Connemara Ltd., the trial court applied Tex. R. Civ. P. 91a to dismiss a declaratory-judgment claim about the assessment of a transfer fee pursuant to a restrictive covenant. An issue was whether certain required notices had been made in compliance with a statute. Specifically:

“[Appellees] argue the notices were printed in fourteen-point boldface type and referenced records that sufficiently described the property subject to the private transfer fee—they rely on the notices attached as pleading exhibits to [Appellant’s] amended petition for this contention.”

The Fifth Court rejected this argument:

“[W]e may not consider evidence in deciding a rule 91a motion but only the pleading of the cause of action and the narrow class of exhibits permitted by rule 59. That narrow class includes ‘[n]otes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense.’ The copies of the notices attached to the amended petition may be important future evidence for some of Longhorn Creek’s allegations, but they cannot be said to constitute the claim sued on.”

No. 05-22-00842-CV (Feb. 20, 2024) (citations omitted).

The Fifth Court reversed the grant of a Rule 91a motion on issues involving limitations, privity, and standing, in 17714 Bannister v. TAS Env. Servcs. LP, No. 05-22-00820-CV (Nov. 9, 2023) (mem. op.).

The appellant in Schoenbauer v. Deutsche Bank argued that an “order of nonsuit was improper because he had counterclaims pending.” But the Fifth Court held:

Counterclaims are subject to the payment of a mandatory filing fee. No right to be heard on counterclaims exists until the fee is paid and the filing is complete. Because the record before the Court reflects that appellant did not pay the required mandatory filing fee, the order of nonsuit of all of appellee’s claims against appellant rendered the case moot. 

No. 05-23-00416-CV (Aug. 1, 2023) (mem. op.) (citations omitted).

A nightclub shooting led to litigation. The trial court granted the defendants’ motion to dismiss and the Fifth Court reversed in Mendoza v. Milkshake, LLC, holding, inter alia:

• As to a dispute about whether the proper parties had been sued: “We reject appellees’ assertion that Mendoza’s claims against them can be dismissed due to the verified denial. Assuming the verified denial conclusively proved appellees were improper parties, it cannot be included in the Rule 91a analysis. The trial court was required to decide the motion based solely on the pleading of the cause of action.”
• Because “[a] motion to dismiss must state specifically the reasons the cause of action has no basis in law or in fact,” the court declined to consider arguments for dismissal made for the first time on appeal.

No. 05-22-01018-CV (July 11, 2023) (mem. op.)

Texas R. Civ. P. 301 says that a judgment “shall conform to the pleadings.”

In In the Interest of SMG and AIG, a petition for name change asked that two children have their name changed from “Gonzalez Rodriguez” to “Rodriquez.” At the hearing, the petitioner said that “Gonzalez” could also be the middle name.

(In Mexico, the convention is to have two last names–a practice that does not always match with American legal forms.)

The children ended up with the hyphenated last name of “Gonzalez-Rodriguez.” The Fifth Court reversed because that relief did not comport with Rule 301. It expressed no view on the sufficiency of the evidence to support such a change. No. 05-22-00937-CV (June 13, 2023) (mem. op.).

The majority and dissenting opinions in Davis v. Homeowners of Am. Ins. Co. differed about how to apply Tex. R. Civ. 91a to a limitations issue in a homeowner-coverage dispute. Foornote 6 in the majority opinion provides an interesting analysis of what materials, attached to pleadings, are fairly considered as an actualy part of those pleadings:

“Rule 59 permits as ‘pleading exhibits’ only ‘[n]otes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense.’ …  Pleading exhibits are not evidence. They are exhibits in aid of, and to factually amplify allegations in, pleadings and, if used, must be incorporated by reference into the pleadings in some manner. In other words, they are viewed as constituting a part of the pleading to which they are attached. … [A] court may consider a movant’s pleading only to determine whether an affirmative defense has been properly raised in the pleading of the movant. Rule 59 hardly grants carte blanche to litigants to attach unauthenticated, hearsay, unduly prejudicial, or other traditionally objectionable documents to pleadings and have them considered as ‘evidence’ in the traditional sense. Rule 59 pleading exhibits merely imbue or augment the allegations of the pleading to which they are attached.”

No. 05-21-00092-CV (May 31, 2023) (citations omitted, emphasis in original).

Olivares v. Chevron Phillips Chem.Co. distinguishes two closely related doctrines about the limits of judicial power, which are distinguished procedurally:

“Unlike the exclusive jurisdiction doctrine, exclusive remedy is an affirmative defense. As an affirmative defense, exclusive remedy should not be disposed of with a motion to dismiss such as a plea to the jurisdiction; it should instead be raised through a motion for summary judgment or proven at trial. ‘Thus, pursuing the exclusive-remedy defense through a plea to the jurisdiction ‘is problematic and not to be encouraged.’”

No. 05-22-00057-CV (March 14, 2023) (mem. op.) (citations omitted).

The Baroque rules surrounding special-exception practice led to reversal in J.G. v. Jones, a claim by “J.G.” against the owner of the Dallas Cowboys alleging unwanted physical contact. In particular, the Fifth Court held:

• Preservation. Where, as here, the plaintiff amended in response to a special-exceptions order, the plaintiff preserved error by, inter alia, opposing the defendants’ motion to dismiss. The Court distinguished a 1993 opinion in which the plaintiff did not amend in response to a similar order.
• Merits. The Court noted that of six deficiencies identified in the special exceptions, only two were challenged in the motion to dismiss. As to the location of the alleged conduct, the court found that her revised description “was at least a good faith attempt” that could not support dismissal; as to the use of initials, the court noted that “[a]ppellees do not dispute that they were informed of appellant’s identify before the trial court ruled on their motion to dismiss.”

No. 05-22-00215-CV (Feb. 27, 2023) (mem. op.). The Dallas Morning News recently reported on the case.

Maersk v. Mgbeowula presented what Maersk (the shipping company) apparently considered to be a collection matter arising from a freight delivery to Nigeria, and what the defendant contended was a problem created by an agent acting without authority. When Maersk’s Texas-law contract claims encountered rough seas at trial, it sought leave to amend with a claim based on maritime law. The trial court denied that request and the court of appeals affirmed, declining to raise that ship by concluding (among other matters) that there had been no trial by consent of such a claim:

“[T]he evidence admitted at trial was submitted by Maersk in support of its claims for breach of contract and sworn account under Texas law. Because the evidence was relevant to the pleaded claims, we cannot conclude that a claim under maritime law was tried by consent. … This is particularly so in light of Mgbowula’s objection at the start of trial to the use of any exhibit to invoke maritime law. While the evidence offered by Maersk might be relevant to a cause of action under maritime law, this does not change the fact that the requested amendment asserted a new substantive matter that would have reshaped Maersk’s case.”

No. 05-21-00820-CV (Jan. 20, 2023).

In a (literal) footnote to Collins Asset Group v. Ayers, the Fifth Court noted a technical point about a line of attack on the relevant instrument: “Ayres also objected to the Note based on the absence of assignments, and on cross-examination, appeared to challenge the signatures on the Note. Ayres did not contest the authenticity of signatures in his verified denial, so the Note was admissible in that regard as fully proved. See Tex. R. Civ. P. 93(7); Boyd v. Diversified Fin. Sys., 1 S.W.3d 888, 891 (Tex. App.—Dallas 1991, no pet.).” No. 05-21-00295-CV (March 30, 2022) (mem. op.).

• “Payment is an affirmative defense which the defendant has the burden to plead and prove. Payments pled by the defendant which are not admitted in the plaintiff’s petition must be specifically alleged.”
• What about trial by consent? “‘The doctrine of trial by consent does not apply when the evidence of an unpleaded matter is relevant to the pleaded issues because it would not be calculated to elicit an objection.’ Milbourn’s testimony was relevant to the Kidwell’s claim for breach of fiduciary duty … that Bresnahan breached his fiduciary duty by failing to disclose his conflicts of interest and by unilaterally increasing his own wages. … Because the Kidwells’ evidence of payment [a spreadsheet] was also relevant to their pleaded claim for breach of fiduciary duty, we conclude payment was not tried by consent.”

Haddington Fund, LP v. Kidwell, No. 05-19-01202 (Jan. 11, 2022) (mem. op.) (citations omitted).

Footnote 3 in the recent en banc majority opinion from Steward Health Care System v. Saidara suggests a promising special exception in cases with general allegations about unfair competition:

Appellants do not specify the branch of “unfair competition” they allege. See, e.g., James E. Hudson, III, A Survey of the Texas Unfair-Competition Tort of Common-Law Misappropriation, 50 BAYLOR L. REV. 921, 924–26 (1989) (noting Texas common law recognizes three branches of unfair competition: palming off, trade-secret misappropriation, and common-law misappropriation); RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 40 cmt. a (AM. LAW INST. 1995) (stating that unfair competition includes torts for misappropriation, infringement, unjust enrichment, and breach of confidence, but not breach of contract, breach of the duty of loyalty owed by an employee or other agent, or breach of confidence not involving a trade secret). Rather, they generally refer to their claim as “Unfair Competition” and contend that “by misleading Steward with their misrepresentations that Prospect intended to buy the assets of Southwest General and thereby inducing Steward to make Southwest General’s most sensitive business information available to Prospect senior executives and ultimately all of Prospect, Prospect and Saidara have engaged in conduct that is contrary to honest practices in commercial matters.”

This is a crosspost from 600Hemphill, which reviews business cases in the Texas Supreme Court. This case originated from the Fifth Court.

In a per curiam opinion issued without argument, the Texas Supreme Court reminded that it really meant its holding in Pike v. Texas EMC Management LLC, about the distinction between standing and capacity, as applied to the question whether a particular injury is suffered by the named plaintiff or the relevant business entity. Cooke v. Karlseng, No. 19-0829 (Jan. 22, 2021).

On rehearing, the Fifth Court reversed field and allowed a post-trial pleading amendment to stand, after previously holding that the amendment was invalid. Murphy v. Mejia Arcos, No. 05-18-01342-CV (Dec. 11, 2020). The relevant motion to amend was timely as it was filed before the entry of an amended judgment.

If arguing that the plaintiff’s pleadings judicially admit arbitrability, be sure the record all lines up: “[T[]o the extent WorldVentures seeks to rely on a ‘judicial admission’ that TTF ‘consented to the 2019 agreements,’ the record does not show that the section 7.1 quoted in TTF’s petition necessarily came from the 2019 documents. The petition is silent as to what version of WorldVentures’ Policies & Procedures the quotation is from. Although the quoted section does not appear in the 2011 version, there were at least six additional versions in effect between 2012 and 2019. The record includes only the arbitration provision portions of those documents and does not show whether the quoted section 7.1 was unique to the 2019 version. Thus, the petition does not contain a ‘clear, deliberate, and unequivocal” statement of fact regarding consent to the 2019 agreements.'” WorldVentures Marketing v. Travel to Freedom, No. 05-20-00169-CV (Sept. 23, 2020) (mem. op.).

In addition to a thorough review of Batson law as applied to Hispanic potential jurors,  Murphy v. Mejia Arcos provides a powerful example of the rules about post-trial pleading amendments.

On the one hand, “pursuant to rules 63 and 66 of the Texas Rules of Civil Procedure, a trial court must allow a postverdict amendment that increases the amount of damages sought in the pleadings to that found by the jury unless the opposing party presents evidence of prejudice or surprise.” (emphasis added)

But at the same time, “a trial court cannot grant a motion for leave to amend the pleadings after the court signs the judgment.”

Accordingly, the trial court abused its discretion when it (1) signed a final judgment, (2) granted the plaintiff’s motion to amend the pleadings, and then (3) signed a new judgment without an order setting aside the first one. “Because the trial court never signed a written order vacating the August 9, 2018 final judgment, its oral pronouncement [about vacating that judgment] was ineffective, so the August 9,
2018 judgment continued in force and effect. . . . [A]t all times after August 9, 2018, there has always been a final judgment in this case. Therefore, the trial court did not follow the guiding principles of law that it cannot grant leave to file an amended pleading after judgment.” 

As a result, the judgment was reduced to $200,000 (the maximum amount sought specified by the plaintiff’s trial pleading) from the $1,000,000 awarded in the jury’s verdict. No. 05-18-01342-CV (July 17, 2020).

Armbrister’s car was repossessed. She sued the lender because it had unlawfully refused to deduct her payment from a Federal Government Federal Reserve Bank account. She had acquired the rights to this account, she alleged, because of her work for the  FBI, the NSA, and the Defense Department on an artificial intelligence team; those agencies had authorized her by neural communication to pay all of her bills from an account at the Federal Reserve. Unfortunately for Armbrister, her claim did not satisfy the demands of Tex. R. Civ. P. 91a, and the Fifth Court affirmed. Armbirster v. American Honda Finance Corp., No. 05-19-00593-CV (July 10, 2020) (mem. op.) The opinion did not address whether neural communication satisfies the statute of frauds, or whether the relevant government agencies may have immunity defenses to fraudulent-inducement claims by Armbrister.

Tex. R. Civ. P. 301 says: “The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.” Guillory v. Dietrich applied that rule, observing that “a judgment for money damages in excess of the amount pleaded cannot be supported,” and held: “Dietrich specifically pled that appellants had been unjustly enriched in the amount of ‘approximately $24,280.00’” representing Dottie’s share of federal income taxes that Dietrich paid. Although he pled for other damages as well, he did not plead unjust enrichment as a basis for recovering them. We conclude that the trial court erred by awarding Dietrich more than $24,280 as unjust enrichment damages.” No. 05-18-00504-CV  (Jan. 6, 2020) (emphasis added).

In a dispute about standing to assert rights as a partner, the Fifth Court made this general procedural point: “Although appellants did not file a rule 93 verified ‘denial of partnership,’ the record shows [plaintiffs] did not assert their ‘admission’ argument below.  Rather, [plaintiffs’] claimed status as a . . . partner was a primary focus of both sides’ arguments at trial. On this record, we conclude capacity was tried by consent.”  (citations omitted, applying Highland Credit v. UBS, 451 S.W.3d 508, 515 (Tex. App.—Dallas 2014, no pet.). Malouf v. Sterquell PSF Settlement LC, No. 05-17-01343-CV (Nov. 7, 2019) (mem. op.)

The Fifth Court affirmed and part – and reversed in part – a TRCP 91a dismissal in  Royale v. Knightvest  Management LLC, No. 05-18-00908-CV (Aug. 30, 2019) (mem. op.). The Court summarized the standard as follows (citations omitted):

“[W]e construe the pleadings liberally in favor of the plaintiff. Under the fair-notice pleading standard we apply to determine whether the petition’s allegations are sufficient to allege a cause of action, we assess whether the defendant can ascertain from the pleading the nature of the controversy, its basic issues, and the type of evidence that may be relevant. ‘Rule 91a provides a harsh remedy that should be strictly construed.’ The rule is not a substitute for special exception practice under rule 91 or summary judgment practice under rule 166a, both of which come with protective features. If a petition provides sufficient facts to give fair notice of the claim, then a motion seeking dismissal based on lack of a basis in fact should be denied.”

While affirming on the merits, the Fifth Court rejected an award of attorneys’ fees under Tex. R. Civ. P. 91a when the ground for dismissal was a lack of subject matter jurisdiction rather than the merits of a pleaded claim: “[N]o Texas case has ever awarded attorney’s fees under rule 91a.7 where the dismissal resulted from a lack of subject matter jurisdiction. In these circumstances rule 91a is not the ‘vehicle’ by which the case is disposed and, conversely, jurisdiction is not a ‘ground’ to which 91a is directed.” Dallas County Republican Party v. Dallas County Democratic Party, No. 05-18-00916-CV (Aug. 26, 2019) (mem. op.)

Justice Molberg‘s first appearance as an opinion author in this blog involves Alliance’s allegation that Top Hat was a “a domestic, for-profit limited liability corporation authorized to do business in the State of Texas with its principal office in Ennis, Texas.” Alliance won an award of attorneys’ fees; Top Hat argued that it was an LLC and was thus not subject to CPRC § 38.001. The Fifth Court rejected that argument: “Top Cat did not file a rule 93 verified affidavit denying that it is a corporation as alleged and, therefore, failed to preserve its complaint that it is not an entity against which attorney’s fees may be awarded under section 38.001.” Top Cat Ready Mix LLC v. Alliance Trucking LP, No. 05-18-00175-CV (Jan. 22, 2019) (mem. op.)

Nunez successfully sued Avelar for personal injuries, arising from a fall while installing a new window in a home owned by Avelar. The Fifth Court affirmed except as to damages for disfigurement, which Nunez had not pleaded for, but which the trial court found had been tried by consent. Specifically, the Court found that this examination did not establish trial by consent:

Q. What parts of your body were in pain?

A. In the arm.

Q. Do you also have a scar from the operation to your arm today?

A. Yes, of course.

Q. Can you show the Court the scarring of the arm?

A. It’s right here (indicating).

The Court: On the inside of the elbow? Can you see?

Defense counsel: I can see it, Your Honor, thank you.

Q. How long did it take for the elbow and the hand, the bones anyway, to heal?

A. More than half a year.

Q. Okay. And were you in pain during that time period?

A. Yes, of course.

The court saw this testimony as also relevant to elements of damage which had been pleaded; thus: “. This is, at best, a doubtful case for applying trial by consent, and trial by consent should not be inferred in doubtful cases.” Avelar v. Nunez, No. 05-17-00631-CV (Nov. 20, 2018) (mem. op.)

The plaintiff in a legal malpractice cause sought leave to amend to add a new party, the trial court denied leave, and the Fifth Court affirmed, finding a failure to show good cause: “[A]lthough James stated in that motion that ‘[Eberstein’s] involvement and participation in the fraud has been discovered and confirmed throughout Plaintiff’s utilization of the discovery process during the oral deposition of Ms. Witherite, which only occurred on February 22, 2017,’ James did not cite or describe any evidence to support that assertion, and (2) James did not describe or address how that assertion is consistent with her testimony in her January 25, 2017 deposition that Eberstein met with her and counseled her before mediation in the Lawsuit.” James v. Witherite, No. 05-17-00799-CV (Nov. 9, 2018) (mem. op.)

In several situations, Texas procedure gives pleadings evidentiary effect instead of treating them only as a means of notice; a basic one is illustrated by the FED dispute in Trans Am SFE II LLC v. Young: “To prove its case, Trans Am needed to show (1) a trustee’s deed or substitute trustee’s deed from the foreclosure sale demonstrating it purchased the property at the foreclosure sale, (2) that appellees would become tenants at sufferance following the foreclosure sale if they did not vacate, and (3) notice to vacate informing appellees of their tenant at sufferance position and the need to vacate the property. Each of these elements was alleged in Trans Am’s petition thereby conferring jurisdiction on the justice court and the county court at law to hear the case.” (citations omitted). Accordingly, the plaintiff did not have to substantiate these allegations with evidence unless the defendant first brought forward evidence to contradict them. No. 05-17-00394-CV (Apr. 6, 2018) (mem. op.)

Confusion over which entity named “Whoa” received a property conveyance led to an argument that capacity had not properly been pleaded as a defense under Tex. R. Civ. P. 93. The Fifth Circuit disagreed with the appellants’ position: “[T]he case before us does not involve a party’s contention that its opponent is not a proper party or that a claim filed by its opponent belongs to another. . . .  Further, the record does not show [Appellees] challenged Whoa’s ‘authority’ respecting its claim.” Whoa USA, Inc. v. Regan Properties, LLC, No. 05-16-01283-CV (March 12, 2018) (mem. op.)

At least outside the Rule 91a context: “Texas follows a fair-notice pleading standard; the opposing party must be able to ascertain the nature and basic issues of the controversy and what testimony will be relevant from the pleading. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 677 (Tex. App.—Dallas 2004, pet. denied). The purpose of fair-notice pleading is to provide a defendant with sufficient information to prepare a defense. Horizon/CMS Healthcare Corp., 34 S.W.3d at 897.” Cerna v. Smith, No. 05-17-00178-CV (Feb. 2, 2018) (mem. op.)

The Fifth Court continues to carefully police the boundaries of judicial admissions.  In a family law case, it observed: “In her original motion to modify, Mother did not request the amount of child support be modified; rather she requested only that the order be modified to impose greater restrictions on Father’s access to [Child].  Therefore, Mother’s statement there had been a material and substantial change in circumstances was directed toward possession of and access to J.C.J., not the previously ordered child support.  Accordingly, Mother did not make a ‘clear, deliberate, and unequivocal’ statement in her original motion to modify that there had been a material and substantial change in circumstances relating to Father’s financial condition or to the amount of child support Father had been ordered to pay.”  In re JCJ, No. 05-14-01449-CV (Jan. 28, 2016) (mem. op.) (applying Horizon/CMS Healthcare Corp. v. Auld,  34 S.W.3d 887, 905 (Tex. 2000)).

While otherwise affirming the plaintiffs’ victory in an easement dispute, the Dallas Court of Appeals struck a portion of the trial court’s declaratory judgment related to the legal rights associated with that easement.  The Court found no request for judgment on that matter in the plaintiffs’ live pleading or summary judgment motion, and also found that general discussion of the applicable city regulations had been offered for other purposes.  The Court reminded: “[A]n issue is not tried by consent when evidence relevant to the unpleaded issue is also relevant to a pleaded issue because admitting that evidence would not be calculated to elicit an objection and its admission would not prove the parties’ ‘clear intent’ to try the unpleaded issue.”  United Services Pyramid Group v. Hurt, Noi. 05-14-00108-CV (Dec. 7, 2015) (mem. op.)

For 15 years, Steven Anderson was a route driver for Greenville Automatic Gas Co. Anderson quit and went to work for Automatic Propane Gas & Supply, leading Greenville to invoke an employment agreement that it claimed included both a a covenant not to compete and a nonsolicit provision. Anderson and Automatic Propane sued for a declaratory judgment, alleging (after a series of amendments to the pleadings) that Anderson had only signed a shorter contract that contained neither of the terms claimed by Greenville. The jury found that Anderson has not agreed to the terms claimed by Greenville and awarded him approximately $75,000 in attorney fees. The Dallas Court of Appeals reversed, holding that Anderson and Automatic Gas could not dispute the validity of Greenville’s contract because they had failed to timely file a verified pleading denying its validity, as required by TRCP 93. The Court of Appeals also affirmed summary judgment against Greenville on its tort-based counterclaims and remanded the case for further proceedings.

Greenville Automatic Gas Co. v. Automatic Propane Gas & Supply, LLC, No. 05-13-01405-CV

The Dallas Court of Appeals has now joined two other Texas appellate courts in holding that “A post-verdict motion requesting attorney’s fees filed before the entry of a final judgment is a sufficient pleading to support an attorney’s fee award.” The Court also disposed of the appellant’s argument that a $50,000 fee award was unreasonable because it far exceeded the $11,000 in damages found by the jury, holding that the issue was waived by failing to request a reporter’s record of the hearing.

Nisby v. Dentsply Int’l, Inc., No. 05-14-00814-CV

After having lost on summary judgment, the plaintiff filed an amended petition, omitting all but one defendant, and then appealed the decision.  The Court of Appeal found that, because the plaintiff had omitted these parties from his amended petition, his claims against these defendants were not preserved and dismissed the appeal.

Pipes v. Hemingway

In 2005, Dibon Solutions acquired 100% of RTS’s common stock. In 2006, the Texas Secretary of State ordered the forfeiture of RTS’s charter or certificate of authority for failure to comply with the tax code. In 2007, Martinair contracted with RTS for use of RTS’s profit optimization products and related services. Martinair later terminated its agreement with RTS, and RTS sued Martinair for breach of contract, identifying the plaintiff as RTS, “a corporation organized under the laws of the State of Texas.”

Martinair filed a motion for summary judgment against RTS, arguing RTS’s forfeiture of its corporate existence in 2006 deprived it of legal authority and capacity under Texas law to enter into the Agreement upon which it sued Martinair, which the trial court granted in part. The trial court also struck RTS’s amended petition, which had purported to substitute RTS’s parent corporation, Dibon, as the plaintiff. On appeal, Dibon argued the trial court erred in striking its amended petition. The Court of Appeals disagreed, and affirmed the trial court’s ruling. Rule 28 permits a partnership doing business under an assumed name to file suit in that name. However, Dibon failed to make a showing that it actually conducted business under the name RTS, thus its amended petition was improper.

Dibon Solutions, Inc. v. Martinair Holland N.V., No. 05-11-01586-CV