Court of Appeals of Texas, Fifth District, Dallas
DIBON SOLUTIONS, INC. D/B/A REVENUE TECHNOLOGY SERVICES CORPORATION, Appellant
MARTINAIR HOLLAND N.V., Appellee
On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-09-02903
Before Justices Bridges, FitzGerald, and Myers
DAVID L. BRIDGES JUSTICE
Appellant Dibon Solutions, Inc. d/b/a Revenue Technology Services Corporation ("Dibon/RTS") appeals from the summary judgment entered in favor of appellee Martinair Holland N.V. ("Martinair"). In two issues, appellant contends the trial court erred in striking its amended petition when: (1) Dibon/RTS complied with rule 28 in identifying its "true name" by means of an amended petition and (2) Dibon/RTS was not a third-party intervenor, but an original plaintiff, when its amended petition was stricken as a third-party intervention that violated the trial court's scheduling order. We affirm.
Dibon Solutions, Inc. ("Dibon") entered into a Stock Acquisition Agreement ("2005 SAA") with Revenue Technology Services Corporation ("RTS") on October 4, 2005. Under the terms of the 2005 SAA, Dibon acquired one hundred percent of RTS's common stock.
On November 29, 2007, Martinair and RTS entered into the RTS Master Subscription Service Agreement ("Agreement") for use of RTS's profit optimization products and related services. In the Agreement, RTS identified itself as "Revenue Technology Services Corporation ("RTS"), a duly registered Texas Corporation." The Agreement expressly stated:
RTS is a trade name for Revenue Technology Services Corporation. The RTS logo is a trademark of Revenue Technology Services Corporation.
The Agreement was signed on RTS's behalf by Loren Alexander in his capacity as Chairman of RTS. Loren Alexander was Chief Executive Officer and Chairman of the Board of Directors of RTS at the time that the Agreement was executed. The Agreement was signed on Martinair's behalf by Paul Gregorowitsch in his capacity as Martinair's President and CEO. There were no other signatories or parties identified in the Agreement. The Agreement contains a "merger" clause, which reads as follows:
This Agreement constitutes the full and complete understanding and Agreement of Client and RTS and supersedes all prior negotiations, understandings, and agreements. Except as expressly stated in this Agreement, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in the form of a written attachment or amendment to this Agreement that is signed by Client and RTS.
On February 10, 2006, the Texas Secretary of State ordered the forfeiture of RTS's charter or certificate of authority for failure to comply with section 171.309 of the tax code. At the latest, Dibon was aware that RTS had forfeited its corporate existence on January 8, 2008. There is no evidence in the record that Dibon or RTS ever sought the reinstatement of RTS's corporate existence.
On February 11, 2009, Martinair sent a letter outlining its complaints about the services and profit optimization software provided by RTS under the Agreement and terminated the Agreement with RTS. A month later, RTS responded by filing suit against Martinair for breach of contract. RTS contended that, where the Agreement provided for a 60-month subscription period, Martinair improperly terminated the Agreement after only 6 months. RTS claimed that, under the terms of the Agreement, Martinair was therefore liable for the remaining subscription period. RTS's original petition identified the plaintiff as RTS, "a corporation organized under the laws of the State of Texas."
On January 25, 2010, RTS served its Responses to Martinair's Requests for Disclosure, stating that the correct name of the plaintiff in the lawsuit was "Revenue Technology Services Corp." RTS further stated that it knew of no other potential parties. RTS did not disclose Dibon or Dibon/RTS as a person having knowledge of relevant facts. The record also contains RTS's additional responses to requests for disclosure, dated April 22, 2011, May 24, 2011, and June 2, 2011. However, these responses do not disclose Dibon or Dibon/RTS as a person having knowledge of relevant facts.
On March 7, 2011, the fifth amended agreed level 3 scheduling order ("fifth amended scheduling order") was entered by the trial court. The fifth amended scheduling ...