Chapter 14-1 Lack of Capacity

• Jurisdiction: United States

14-1 Lack of Capacity

The issue of capacity concerns a party's personal right to come into court, whereas standing concerns the question of whether a party has a justiciable interest.¹ Capacity "is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate."² A party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy.³ Lack of capacity must be challenged by a verified pleading, based on personal knowledge, or it is waived.⁴

The issue of capacity to sue is traditionally raised by a verified plea in abatement, but it may also be raised in a verified denial.⁵ If the issue is raised by a verified denial, the plaintiff bears the burden of proving at trial that it is entitled to recover in the capacity in which it has filed suit, and as the party with the burden of proof, the plaintiff must obtain a jury finding on the particular capacity issue.⁶

A pleading alleging the a defect in capacity must point to specific facts and must be verified by affidavit, unless the truth of the matter appears of record:⁷

That the plaintiff has not legal capacity to sue or that the defendant has not legal capacity to be sued;⁸ and

That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued.⁹

* The authors thank Kimberly Trimble for her assistance in the updating of this chapter.

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Notes:

^[1] Basic Energy Serv., Inc. v. D-S-B Props., Inc., 367 S.W.3d 254, 261 (Tex. App.—Tyler 2011, no pet.).

^[2] John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 650 (Tex. App.—Dallas 2013, rehearing overruled) (quoting Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005)).

^[3] Rhey v. Redic, 408 S.W.3d 440, 456 (Tex. App.—El Paso 2013, no pet.).

^[4] Basic Energy Serv., Inc. v. D-S-B Props., Inc., 367 S.W.3d 254, 261 (Tex. App.—Tyler 2011, no pet.).

^[5] Bossier Chrysler Dodge II, Inc. v. Rauschenberg, 201 S.W.3d 787 (Tex. App.—Waco 2006, aff'd in part, rev'd in part by Bossier Chrysler Dodge II, Inc. d/b/a Bossier Country v. Rauschenberg, 238 S.W.3d 376 (Tex. 2007) (Mem. Op.)).

^[6] Bossier Chrysler Dodge II, Inc. v. Rauschenberg, 201 S.W.3d 787 (Tex. App.—Waco 2006, aff'd in part, rev'd in part by Bossier Chrysler Dodge II, Inc. d/b/a Bossier Country v. Rauschenberg, 238 S.W.3d 376 (Tex. 2007) (Mem. Op.)).

^[7] John C. Flood of DC, Inc. v. SuperMedia, L.L.C., ...