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Morton Salt, Inc. v. Walker

Court of Appeals of Texas, Twelfth District, Tyler

July 19, 2017

MORTON SALT, INC., APPELLANT
v.
DENNIS H. WALKER D/B/A WALKER & ASSOCIATES SURVEYING, INC., APPELLEE

         APPEAL FROM THE COUNTY COURT AT LAW VAN ZANDT COUNTY, TEXAS

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          JAMES T. WORTHEN CHIEF JUSTICE

         Morton Salt, Inc. appeals the trial court's judgment, rendered after a jury trial, in favor of Dennis H. Walker, d/b/a Walker and Associates Surveying, Inc. In three issues, Morton Salt challenges the legal sufficiency of the evidence to support the judgment. We vacate and dismiss in part and affirm in part.

         Background

         Morton Salt has operated a mine in a salt dome at Grand Saline in Van Zandt County since 1929. In 1977, the federal Mine Safety and Health Administration began regulating Morton Salt's operation of the mine. The agency requires semiannual surveys to map Morton Salt's underground mining operations. The surveys establish a relationship between the location of surface features and the mine features underground. Establishing this relationship between the surface and underground mining operations helps Morton Salt avoid encroaching onto adjoining properties, allows it to prevent any surface drilling operations from entering the mining area, and if needed, would establish the location of an emergency shaft to reach an underground mining tunnel that had collapsed.

         At first, Morton Salt handled its own survey operations. In 1982, Don Yarbrough, rock production manager for Morton Salt at the Grand Saline mine, hired Walker & Associates Surveying, Inc. (the Corporation) to perform these semiannual surveys. Yarbrough testified that the two companies had a very satisfactory relationship from 1982 until 2008, primarily due to the expertise of Dennis H. Walker, the Corporation's president.

         Yarbrough testified that after 2008, errors began appearing in the surveys received from the Corporation. Morton Salt had to correct these surveys. Morton Salt last ordered surveying work from the Corporation in December of 2010. The evidence at trial showed that through 2010 all invoices presented to Morton Salt by the Corporation had been timely paid.

         However, in December of 2011, the Corporation submitted an invoice for work allegedly performed in 2011. Yarbrough instructed Morton Salt not to pay the invoice because the work was never requested, and a purchase order was never issued. In 2012, Dennis H. Walker filed a mechanic's lien against Morton Salt. The following year, Dennis H. Walker, d/b/a Walker & Associates Surveying, Inc., filed suit against Morton Salt asserting breach of contract and suit on a sworn account. Morton Salt counterclaimed, alleging breach of contract and a claim for a fraudulent lien pursuant to Texas's false lien statute. The case was tried to a jury and, based on its findings, the trial court rendered judgment in favor of Dennis H. Walker, d/b/a Walker & Associates Surveying, Inc. against Morton Salt, awarding Walker $9, 118.64, with interest, attorney's fees in the amount of $32, 421, and costs in the amount of $1, 958.49. The trial court also ordered that Morton Salt take nothing on its claims against Walker. Morton Salt timely appealed.

         Standing and Capacity

         In its first issue, Morton Salt contends that Walker sued in his individual capacity but does not have standing to bring this suit as an individual. Therefore, it asserts that the trial court lacked jurisdiction over Walker's suit, and the judgment should be vacated. Walker responds that his standing to bring suit is not the issue, but rather his capacity to bring suit. He asserts that Morton Salt waived this complaint by failing to file a verified pleading contesting his capacity to bring the suit.

         Standard of Review

         Because standing is a question of subject matter jurisdiction, we consider standing under the same standard by which we review subject matter jurisdiction generally. Tex. Ass'n of Bus. v. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). That standard requires the pleader to allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. We review a challenge to a party's standing de novo. Smith v. CDI Rental Equip., Ltd., 310 S.W.3d 559, 566 (Tex. App.-Tyler 2010, no pet.). The issue of standing may be raised for the first time on appeal. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005).

         Standing and ...


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