VERTICAL NORTH AMERICA, INC. N/K/A RAIZEN NORTH AMERICA, INC., Appellant
VOPAK TERMINAL DEER PARK, INC., Appellee
Appeal from the 61st District Court Harris County, Texas
Trial Court Cause No. 2012-33666
consists of Justices Jamison, Donovan, and Jewell.
North America, Inc., n/k/a Raizen North American, Inc.
("Vertical NA") brings this appeal from an order in
favor of Vopak Terminal Deer Park, Inc. ("Vopak")
dismissing its suit for want of jurisdiction. We reverse and
NA, a Houston-based ethanol trader and distributor, entered
into a series of contracts with Vopak, a terminaling company
that provides bulk tank storage service. At the time,
Vertical NA was a corporate subsidiary of Vertical UK LLP. On
August 25, 2011, Vertical UK entered into a Purchase and Sale
Agreement ("PSA"), selling Vertical NA to Raizen
Trading LLP. Vertical NA filed suit against Vopak in June
2012 for breach of contract and fraud. In July 2015, Vopak
moved to dismiss the suit on the basis Vertical NA lacked
standing "because it does not own the claims it is
asserting." The trial court granted Vopak's motion
and dismissed the suit.
first issue, Vertical NA contends the trial court erred in
concluding it lacked standing. Vopak asserted Vertical NA
lacked standing to assert its claims because after execution
of the PSA those claims were owned by Vertical UK. Vertical
NA countered that Vopak's complaint was one of capacity
rather than standing. In the hearing on Vopak's motion to
dismiss, Vertical NA again urged this argument, stating
"there is a very serious issue as to whether this is a
question of standing or a question of capacity. . . .
It's an issue of capacity. And they've long since
waived their right to raise an issue of capacity." In
its brief, Vertical NA notes that if the issue were treated
as a question of capacity, rather than standing, the trial
court's judgment must be vacated.
plaintiff must have both standing and capacity to bring a
lawsuit. Austin Nursing Ctr., Inc. v. Lovato, 171
S.W.3d 845, 848 (Tex. 2005). "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." Lovato, 171 S.W.3d at 848-49
(quoting Nootsie, Ltd. v. Williamson Cty. Appraisal
Dist., 925 S.W.2d 659, 661 (Tex. 1996) (emphasis in the
original)). A plaintiff may have capacity even if it has no
legally cognizable interest in the outcome of the case.
AVCO Corp., Textron Lycoming Reciprocating Engine Div. of
AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d
632, 649 (Tex. App.-Houston [14th Dist.] 2007, pet. denied).
challenge to who owns a claim raises the issue of capacity,
not standing, and requires compliance with Rule 93, including
the requirement to file a verified pleading. Tex.R.Civ.P.
93(1); Pledger v. Schoellkopf, 762 S.W.2d 145,
145-46 (Tex. 1988) (concluding contention that corporation
rather than plaintiff shareholder owned fraud and tortious
interference claims challenged capacity to sue and was
waived); Southwest Indus. Inv. Co. v. Berkeley House
Inv'rs, 695 S.W.2d 615, 617 (Tex. App.-Dallas 1985,
writ ref'd n.r.e.) (appellant waived issue of whether
plaintiff owned the asserted contract claim by failing to
comply with Rule 93). Although standing can never be waived,
the issue of capacity to sue is waived both at trial and on
appeal if it is not challenged by a verified pleading.
See Tex. Ass'n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 445-46 (Tex. 1993); Nootsie, 925
S.W.2d at 662. "The Texas Rules of Civil Procedure
require that a defendant challenging a plaintiff's
capacity to sue raise the matter by verified pleading, if
lack of capacity is not evident from the petition."
Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 793
n. 2 (Tex. App.-Houston [1st Dist.] 2007, no pet.));
Tex.R.Civ.P. 93. The defendant bears the burden to challenge
a plaintiff's capacity to sue. Lovato, 171
S.W.3d at 853 n. 7; Intracare Hosp. N., 222 S.W.3d
at 793 n. 2.
NA's lack of capacity, if any, is not evident from its
first amended petition. The record does not reflect, and
Vopak does not assert, that it satisfied the requirements of
Rule 93. Accordingly, we do not address that issue on its
merits. See Fitness Evolution, L.P. v. Headhunter
Fitness, L.L.C., No. 05-13-00506-CV, 2015 WL 6750047, at
*1, 18 (Tex. App.-Dallas Nov. 4, 2015, no pet.) (mem. op.).
record reflects Vertical NA's standing was challenged
solely on its lack of ownership of the claims brought.
Because the ownership argument goes to capacity, not
standing, it does not raise a question of subject matter
jurisdiction. See Prostok v. Browning, 112 S.W.3d
876, 921 (Tex. App.-Dallas 2003), aff'd in part,
rev'd in part on other grounds, 165 S.W.3d 336 (Tex.
2005). Accordingly, the ...