Flood, John C, of DC, Inc. John C. Flood., Melville Davis and Robert Smiley
2013 Tex. App. LEXIS 9717
| Tex. App. | 2013Background
- SuperMedia sued John C. Flood of DC, Inc., John C. Flood, Inc., and Melville Davis for unpaid advertising contracts; Robert Smiley was nonsuited.
- Appellants filed an unverified original answer denying SuperMedia’s capacity and denying Davis/Smiley were liable in the capacities sued; they later filed a verified amended answer less than an hour before the summary-judgment hearing.
- SuperMedia moved for traditional and no-evidence summary judgment; the trial court sustained objections to defendants’ affidavit evidence and struck key portions.
- The trial court granted no-evidence summary judgment on several affirmative defenses and entered partial and final summary judgments awarding SuperMedia $340,838.96 against Davis (or Flood of DC) and $233,649.56 against John C. Flood, Inc.; SuperMedia elected judgment against Davis.
- On appeal, defendants challenged (1) SuperMedia’s standing/capacity to sue and (2) Davis’s individual liability (arguing he signed as CEO and acted as agent).
- The court affirmed, holding defendants waived capacity challenges by failing to timely file a verified plea under Texas Rule of Civil Procedure 93 and that the record did not show Davis’s lack of individual liability "of record."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SuperMedia had standing/capacity to sue on the contracts | SuperMedia alleged it was the successor name of Idearc and produced account records and an accounts-receivable affidavit to show entitlement to recover | Defendants argued no privity/assignment or third-party beneficiary status and thus no standing; framed as lack of capacity but stressed standing | Court treated it as a capacity/merits issue (not subject-matter jurisdiction); defendants waived capacity challenge by failing to file a timely verified Rule 93 plea; summary judgment affirmed |
| Whether Davis is personally liable despite signing as "CEO" (agency defense) | SuperMedia pointed to contract signatures and business records linking Davis to accounts and argued no verified denial proved otherwise | Davis argued he signed as agent/CEO and should not be personally liable; defendants relied on a struck affidavit and a late-filed verified pleading asserting agency | Court held defendants waived the verified-capacity defense; record did not unambiguously show Davis lacked personal liability "of record," so his capacity claim could not be considered; summary judgment against Davis affirmed |
Key Cases Cited
- Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005) (distinguishes standing from capacity; standing is jurisdictional and cannot be waived)
- Nootsie Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659 (Tex. 1996) (capacity defenses can be waived under Rule 93)
- Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) (Rule 93 requires verified plea when capacity is contested; general denials are insufficient)
- Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487 (Tex. 1988) (summary-judgment proceedings are trials for purposes of Rule 63; late pleadings require leave)
- Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) (no-evidence summary judgment standard)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (de novo review of summary judgment)