Opinion
No. 04-07-00504-CV
Delivered and Filed: April 2, 2008.
Appealed from the County Court at Law, Guadalupe County, Texas, Trial Court No. 2006-CV-0469, Honorable Linda Z. Jones, Judge Presiding.
REVERSED AND REMANDED.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
FACTUAL BACKGROUND
In 2003, Mel Pomerantz contacted appellant Jerry Kirk d/b/a Kirk Roofing ("Kirk") about completing repairs to the roof of a residential structure owned by two Texas corporations, MP Land, Inc. and DP Land, Inc. Mel Pomerantz died prior to the filing of the underlying lawsuit. Mel's widow, Ann Pomerantz, owns the capital stock in MP Land, Inc. and Mel's brother, Donald Pomerantz, owns the capital stock in DP Land, Inc. At some point the roof began to leak, damaging the residence, and Ann Pomerantz and Donald Pomerantz (hereinafter, "the Pomerantzes") sued Kirk in Guadalupe County Justice Court. After judgment was entered in favor of the Pomerantzes in justice court, Kirk appealed to county court. After judgment again was entered in favor of the Pomerantzes and the two corporations in county court, Kirk filed this appeal. We reverse and remand.
STANDING
In his first issue, Kirk asserts the Pomerantzes lack standing to file the underlying lawsuit or recover under any of the claims because the corporations, and not the Pomerantzes, own the residence and suffered any alleged injuries. In his second issue, Kirk asserts the county court erred in concluding the two corporations were "plaintiffs" in the lawsuit.
Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). The standard of review applicable to subject matter jurisdiction also applies to standing. Id. at 446. Under this standard, a plaintiff must allege facts affirmatively demonstrating the court's jurisdiction to hear the case. On appellate review, we construe the pleadings in favor of the plaintiff and we look to the plaintiff's intent. Id. A plaintiff's standing to pursue a cause of action is a question of law. Coons-Andersen v. Andersen, 104 S.W.3d 630, 634 (Tex.App.-Dallas 2003, no pet.). Therefore, we review the trial court's actions de novo. Id.
There is no dispute the two corporations own the property upon which Kirk performed repairs to the roof. In their petition, the Pomerantzes asserted Kirk failed to perform the work in a good and workmanlike manner and use new materials and industry-standard techniques, which would result in a "sound roof that would not leak," and he failed to repair any leaks that developed after repairs were complete. Thus, all causes of action concerned damage to the corporations' property. A cause of action for damages to the property of a corporation is vested in the corporation. White v. Independence Bank, N.A., 794 S.W.2d 895, 897 (Tex.App.-Houston [1st Dist.] 1990, writ denied). A corporate stockholder cannot recover damages personally for a wrong done solely to the corporation, even though he or she may be injured by that wrong. Id. at 898. An action for damages to corporate property must be brought by the corporation to avoid multiplicity of suits and so that any recovery will be available to pay the corporation's debts. Id. Although stockholders may sustain indirect losses, they have no independent right to bring an action for injuries suffered by the corporation. Id. For corporate injuries, a stockholder is required to file suit on behalf of the corporation. Id. Here, the Pomerantzes, although stockholders in the two corporations, did not have standing to sue Kirk for damage to property owned by the corporations. Therefore, the county court erred in rendering judgment in favor of the Pomerantzes.
The next question, then, is whether the county court erred in rendering judgment in favor of the two corporations on the grounds that the corporations were not before the court as "plaintiffs." In their original petition filed with the justice court, the Pomerantzes named only themselves individually as plaintiffs; no mention was made of the two corporations. The Pomerantzes' amended petition, filed on the same date the justice court rendered judgment, named the corporations as additional plaintiffs. On appeal to this court, Kirk argues that the amended petition failed as a matter of law to add the corporations to the lawsuit in the justice court, and therefore, the corporations were not "plaintiffs" when the suit was heard de novo before the county court. For the following reasons, we agree.
Parties may amend their pleadings "at such time as not to operate as a surprise to the opposite party[, ]" however, amended pleadings may not be filed without leave of court "within seven days of the date of trial or thereafter." Tex. R. Civ. P. 63. Any failure in obtaining the trial court's leave to file is cured by the trial court's subsequent action of considering the amended pleading. Swinney v. Winters, 532 S.W.2d 396, 400 (Tex.Civ.App.-San Antonio 1975, writ ref'd n.r.e.). If the record does not indicate whether leave was obtained and if the amended petition was considered by the court, leave is presumed. Id. Here, the record does not indicate leave was granted, and the Pomerantzes do not dispute Kirk's allegation that they did not obtain leave to file the amended petition on the day the justice court rendered judgment. See Tex. R. App. P. 38.1(f) ("In a civil case, the court will accept as true the facts stated unless another party contradicts them."). Also, nothing in the record indicates the Pomerantzes asked the justice court to amend its judgment to include the corporations as plaintiffs. Although the justice court's judgment states that "the pleadings . . . [were] heard by the Court," we conclude the court did not consider the amended petition filed because the face of the judgment identifies only the Pomerantzes as the plaintiffs and awards damages only to the Pomerantzes. Thus, the Pomerantzes' failure to obtain the justice court's leave to file their amended petition was not cured and the amended petition was not filed prior to a final judgment being rendered in favor of the Pomerantzes. Therefore, the amended petition did not carry forward to the county court. See Withrow v. Schou, 13 S.W.3d 37, 40 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (upon trial de novo in the county court on an action that originated in the justice court, the written pleadings of record in justice court will generally constitute an appearance by the respective parties of record in the county court). As a result, the two corporations were not "plaintiffs" in the county court upon trial de novo, and the county court erred in rendering judgment in favor of the two corporations.
We note that after Kirk appealed the justice court's judgment to the county court, the only pleading filed by the Pomerantzes prior to commencement of trial was a motion for continuance in which they again name only themselves individually as plaintiffs, with no mention of the corporations. Also, at trial, Kirk objected to the Pomerantzes' lack of standing to bring suit for injury to the corporations' property.
CONCLUSION
We reverse the county court's Second Amended Judgment and remand for consideration of what amount, if any, of attorney's fees should be awarded in light of our resolution of this appeal.
In his answer, Kirk requested attorney's fees pursuant to Texas Business and Commerce Code section17.50(c). See Tex. Bus. Com. Code Ann. § 17.50(c) (Vernon Supp. 2007).