His One Stop Business, Inc. Chris Barger & Monica Barger v. Mark Holle as Trustee of the Holle Trust, 14-14-00592-CV

Background

His One Stop Business, Inc. (HOSB) leased commercial premises from the Holle Trust (signed by David Holle as trustee) in July 2012; Monica and Chris Barger signed the lease as HOSB officers/managers but did not sign a personal guaranty.
The lease required landlord work (Section 35) before occupancy (including flooring); appellants never took possession because the landlord did not complete the work.
Appelllee sued for breach of lease on March 22, 2013; procedural history included continuances, two summary-judgment attempts by appellee, a dismissal for want of prosecution after the appellee failed to appear at trial, and a successful motion to reinstate the case.
At trial (June 9, 2014) the trial court entered judgment for appellee against HOSB and against Monica and Chris Barger individually.
Appellants appeal raising five principal errors: improper reinstatement after dismissal for want of prosecution; lack of capacity/standing by the unregistered “Holle Trust”; personal liability of Barger parties; enforceability of damages after appellants terminated the lease for landlord’s failure to timely complete work; and appellee’s failure to mitigate damages.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Reinstatement after dismissal for want of prosecution	Appellee: counsel accidentally misread calendar; reinstatement was justified	Appellants: appellee showed no adequate justification; failure to appear was conscious indifference	Trial court reinstated and case proceeded; appellants contend reinstatement was arbitrary and should be reversed
2. Capacity/standing of plaintiff entity	Appellee proceeded as David Holle, trustee for Holle Trust	Appellants: “The Holle Trust” was an unregistered assumed name/entity and lacked capacity to sue under Tex. Bus. & Com. Code §71.201	Trial court allowed substitution and trial under trustee's name; appellants argue lack of registration rendered action void
3. Personal liability of Monica and Chris Barger	Appellee sought judgment against them individually	Appellants: they signed only as corporate officer/manager for HOSB; no signed personal guaranty; corporate-agent rule bars individual liability	Trial court entered judgment against them individually; appellants argue legal insufficiency to impose personal liability
4. Lease termination and damages	Appellee claimed damages for breach after appellants left/terminated lease	Appellants: lease permitted termination if landlord failed to complete construction by 90 days after commencement; they properly terminated and demanded deposit return	Trial court awarded damages to appellee despite appellants’ termination notice; appellants assert record shows landlord failed to complete work and termination was effective
5. Mitigation of damages	Appellee introduced a later lease as evidence of mitigation	Appellants: evidence does not show comparable re-lease or value; appellee failed to reasonably mitigate under Property Code	Trial court found mitigation adequate; appellants contend no competent evidence of reasonable mitigation

Key Cases Cited

Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (Tex. App.–Amarillo 1988) (legal-sufficiency/no-evidence standard discussion)
Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176 (Tex. 1986) (per curiam) (remedy for legal insufficiency)
Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735 (Tex. 2003) (per curiam) (legal-sufficiency review instruction)
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (abuse-of-discretion standard for discretionary rulings)
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (test for abuse of discretion)
Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) (clarifying Downer abuse-of-discretion formulation)
Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467 (Tex. 1995) (per curiam) (Rule 165a reinstatement/intent/conscious-indifference standard)
Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659 (Tex. 1996) (distinguishing standing and capacity concepts)