DIBON SOLUTIONS, INC. d/b/a

Transcription

IN THE
FIFTH DISTRICT COURT OF APPEALS
at DALLAS, TEXAS
_____________________
DIBON SOLUTIONS, INC.
d/b/a “REVENUE TECHNOLOGY SERVICES CORPORATION,”
APPELLANT (Plaintiff)
v.
MARTINAIR HOLLAND, NV,
APPELLEE (Defendant)
______________________
Appealed from the 14th District Court of
Dallas County, Texas
__________
APPELLANT’S BRIEF
__________
William J. Garrison
Texas Bar No. 24043411
Scheef & Stone, L.L.P.
500 N. Akard Street,
Suite 2700
Dallas, Texas 75201
214 706 4200 (phone)
214-706-4242 (fax)
5th Court of Appeals
FILED: 03/19/2012
14:00
Lisa Matz, Clerk
No. 05-11-01586-CV
IDENTITY OF PARTIES AND COUNSEL
Appellant:
Dibon Solutions, Inc. d/b/a “Revenue Technology
Services Corporation.”
Appellant’s counsel:
William J. Garrison, Scheef & Stone, L.L.P., 500 N.
Akard Street, Suite 2700, Dallas, Texas 75201.
Appellee:
Martinair Holland, N.V.
Appellee’s counsel:
Paula K. Knippa, Slack & Davis, L.L.P., 2705 Bee Cave
Road, Suite 220, Austin, Texas 78746.
i
TABLE OF CONTENTS
I.
STATEMENT OF THE CASE ...................................................................... 1 II.
STATEMENT REGARDING ORAL ARGUMENT .................................. 1 III. ISSUES PRESENTED ................................................................................... 2 IV. STATEMENT OF FACTS ............................................................................ 3 V.
SUMMARY OF ARGUMENT .................................................................... 18 VI.
ARGUMENT ................................................................................................ 19 DIBON’S ISSUE 1: Whether the Trial Court erred in striking
Dibon’s amended petition given that: a) Dibon precisely and
timely complied with Rule 28 in identifying its “true name” by
means of an amended petition; b) the undisputed evidence
demonstrates overwhelmingly that Dibon operated its business
using its trade names of “Revenue Technology Services
Corporation” and “RTS” before and during its dealings with
Martinair; and c) striking Dibon’s amended petition would
work an injustice in that it would allow a party to receive all the
benefits of a contract -- from the party actually performing that
contract -- and then, to avoid providing the reciprocal
consideration it owes, simply deny the existence of the contract
based upon a mis-description of the performing party. ......................19 DIBON’S ISSUE 2: Whether the Trial Court erred in striking
Dibon’s amended petition as a third-party intervention that
violated the Trial Court’s scheduling order given that: a) Dibon
is not a third-party intervenor but rather the original plaintiff in
the case; b) if Dibon was a third-party intervenor, the Trial
Court’s scheduling order could not preemptively forbid Dibon’s
intervention; and c) if Dibon was a third-party intervenor, the
Trial Court could not strike Dibon’s intervention after the Trial
Court had previously granted Dibon summary judgment and
Martinair had previously asserted counter-claims against Dibon. ......33 VII. PRAYER ...................................................................................................... 38 APPENDIX ............................................................................................................. 40 ii
INDEX OF AUTHORITIES
Cases Bland Indep. School District v. Blue, 34 S.W.3d 547 (Tex. 2000) .........................23
CA Partners v. Spears, 274 S.W.3d 51, fn. 11 (Tex.App.—Houston 2008), citing
Indus. Accident Bd. V. Tex. Workmen’s Comp. Assigned Risk Pool, 490 S.W.2d
956 (Tex.App.—Austin 1973, no writ) ......................................................... 21, 24
Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664 (Tex. 1992)
..............................................................................................................................36
Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999)......... 21, 22, 24, 25, 26, 27, 28, 31
Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co., 793 S.W.2d 652 (Tex. 1990)
................................................................................................................. 34, 35, 37
Humble Oil & Refining Co. v. Blankenburg, 149 Tex. 498 (Tex. 1951).................30
In re Marriage of J.B and H.B., 326 S.W.3d 654, 660 (Tex.App. – Dallas 2010).
..............................................................................................................................35
In re Union Carbide Corp., 273 S.W.3d 152 (Tex. 2008) .....................................37
Molinet v. Kimbrell, 2011 Westlaw 182230 (Tex. 2011) ........................................27
Reddy Partnership/5900 North Freeway, L.P. v. Harris Co. Appraisal Dist., 2011
Westlaw 166930 (Tex.App.—Houston 2011)......................................................27
Regal Construction Company v. Hansel, 596 S.W.2d 150 (Tex.App.—Houston
1980, rehearing denied) ........................................................................................30
Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46 (Tex. 2003) .. 21, 22, 24, 26, 27,
28
Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008) ................................34
Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440 (Tex. 1993)
..............................................................................................................................23
W.B. Clarkson & Co. v. Gans S.S. Line, 187 S.W. 1106 (Tex.App.—Galveston
1916) .....................................................................................................................20
Rules Tex. R. Civ. P. 28 ........................................................................ 1, 18, 20, 21, 22, 27
Tex. R. Civ. P. 60 ....................................................................................................34
Tex. R. Civ. P. 65 .....................................................................................................23
Tex. R. Civ. P. 93 .....................................................................................................12
iii
Tex. Tax Code §§ 171.0001(5) ................................................................................30
Tex. Tax Code §§ 171.309 .......................................................................................30
Tex. Tax Code §§ 171.315 .......................................................................................30
Texas Rules of Appellate Procedure, Rule 39.1 ........................................................1
iv
APPELLANT’S BRIEF
TO THE HONORABLE FIFTH DISTRICT COURT OF APPEALS:
Appellant Dibon Solutions, Inc. d/b/a “Revenue Technology Services
Corporation” (“Dibon”) respectfully submits the following brief for the Court’s
consideration:
I.
STATEMENT OF THE CASE
Using its trade name of “Revenue Technology Services Corporation,” Dibon
sued Martinair for breach of contract. Martinair counter-sued for various claims.
When Martinair raised the issue of Dibon’s identity, Dibon amended its petition
pursuant to the Texas Rules of Civil Procedure, Rule 28 (“Rule 28”), for the
purpose of stating its legal name, “Dibon Solutions, Inc.” The Trial Court struck
Dibon’s amended petition based upon the Trial Court’s finding that Dibon is an
intervening third party (not the original plaintiff) whose intervention violated the
Trial Court’s then-existing scheduling order. Thereafter, Martinair non-suited its
then-existing counter-claims and the Court entered Final Judgment in favor of
Martinair. Dibon then brought this appeal.
II.
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to the Texas Rules of Appellate Procedure, Rule 39.1, Dibon
requests oral argument.
The case is sufficiently complex, both factually and
1
legally, that Dibon believes oral argument will provide the Court with useful
discussion tailored to the Court’s specific inquiries.
III.
ISSUES PRESENTED
DIBON’S ISSUE 1:
Whether the Trial Court erred in striking Dibon’s
amended petition given that: a) Dibon precisely and timely complied with Rule 28
in identifying its “true name” by means of an amended petition; b) the undisputed
evidence demonstrates overwhelmingly that Dibon operated its business using its
assumed trade names of “Revenue Technology Services Corporation” and “RTS”
before and during its dealings with Martinair; and c) striking Dibon’s amended
petition would work an injustice in that it would allow a party to receive all the
benefits of a contract -- from the party actually performing that contract -- and
then, to avoid the reciprocal consideration it owes, simply deny the existence of the
contract based upon a mis-description of the performing party.
DIBON’S ISSUE 2:
Whether the Trial Court erred in striking Dibon’s
amended petition as a third-party intervention that violated the Trial Court’s
scheduling order given that: a) Dibon is not a third-party intervenor but rather the
original plaintiff in the case; b) if Dibon was a third-party intervenor, the Trial
Court’s scheduling order could not preemptively forbid Dibon’s intervention; and
c) if Dibon was a third-party intervenor, the Trial Court could not strike Dibon’s
2
intervention after the Trial Court had previously granted Dibon summary judgment
and Martinair had previously asserted counter-claims against Dibon.
IV.
STATEMENT OF FACTS
Dibon respectfully proffers the following Statement of Facts:
1.
YMS, Inc., the Original Owner of the Software Business That
Dibon Later Purchased, Used “Revenue Technology Services Corporation” as
a Trade Name. On December 19, 1990, an entity named “YMS, Inc.” was formed
as a Texas corporation to engage in the business of developing and marketing
profit optimization software (“Software Business”).1 CR 2:267-271.
2.
Beginning no later than November 9, 1992, YMS, Inc. conducted the
Software Business using the assumed trade or fictitious business name (also known
as a “d/b/a”), “Revenue Technology Services Corporation.” CR 2:272, Item 1.
3.
YMS, Inc. used “Revenue Technology Services Corporation” as an
assumed name for at least twelve years before formally changing its legal name on
November 17, 2003. CR 2:296-298.
4.
(The Texas corporation that began as YMS, Inc. d/b/a “Revenue
Technology Services Corporation” and was later legally re-named “Revenue
Technology Services Corporation” shall be referred to herein as “RTS-TX.”)
1
Profit optimization software, in the context of this case (in the Parties’ dealings), is software that recommends to
an airline how much a particular seat on a particular flight should be priced so as to maximize such airline’s profits.
3
5.
Dibon Acquired the Software Business in Its Entirety, Including
the “Revenue Technology Services Corporation” and “RTS” Trade Names.
On October 4, 2005, RTS-TX and Dibon entered into a purchase agreement
(“Purchase Agreement”) (CR 2:305-37) pursuant to which Dibon purchased
effectively all of RTS-TX’s assets, including the company’s trade names2
(“Revenue Technology Services Corporation” and “RTS”), intellectual property,
“all of its tangible and intangible assets including the existing software products,
products in development and all Intellectual Property Rights, Transferred Assets
and Liabilities, and all RTS client contracts.” CR 2:305, first full para., CR 2:32223, “Transferred Assets” and CR 2:325, “RTS Bill of Sale.”
6.
RTS-TX transferred all of these assets to Dibon immediately upon
execution of the Purchase Agreement:
… RTS hereby sells, conveys, grants, assigns, transfers and delivers
to Dibon and its successors and assigns, free and clear of any and all
liens, claims, charges and encumbrances, all of Seller’s right, title and
interest in and to the Transferred Assets, except as provided herein
[assets not described as being transferred, which is inapplicable here].
CR 2:305, next to last full para., emphasis added.
7.
In addition to purchasing and accepting transfer of RTS-TX’s assets –
in what might be described as a “belt and suspenders” approach to a purchase
2
“Trade name” is defined as “the name or style under which a concern does business.” Merriam-Webster online
dictionary, found at www.merriam-webster.com .
4
transaction -- Dibon purchased all of RTS-TX’s stock, thereby becoming the sole
shareholder of the then asset-less RTS-TX. CR 2:305, Section 1.
8.
Dibon Began Using “Revenue Technology Services” and “RTS” as
its Assumed Trade Names. After the effective date of the Purchase Agreement,
Dibon, having become owner of every aspect of the Software Business, including
the trade names “Revenue Technology Services Corporation” and “RTS,” began
doing business using those assumed names. CR 2:262, para. 6. Examples of
Dibon’s business activity using the assumed names include:
a. Dibon moved all “RTS” operations to Dibon’s office at 2009
Chennault Drive, Suite 100, Carrollton, Texas 75006. CR 2:262,
para. 6(a). (Having ceased its operations upon selling its assets,
RTS-TX was no longer using any office space. CR 2:262, para.
6(a).)
b. Dibon caused a large sign reading “RTS” to be placed on its
offices, which sign is visible to the public. CR 2:262, para. 6(b).
c. Dibon caused business cards and other “RTS” materials to be
printed reflecting Dibon’s ownership and operation of the “RTS”
business and setting forth Dibon’s address for future customer and
vendor communications. CR 2:262, para. 6(c); a business card
provided by Dibon to Martinair during the Parties’ dealings is
displayed at CR 2:339.
d. Dibon created a website for the Software Business, which has been
in place since at least 2008 (the period during which the software
project at issue in this case took place), designated and displayed
online as www.dibonrts.com. CR 2:262, para. 6(d).
e. Dibon provided its personnel with e-mail addresses at the
“@RTScorp.com” domain. CR 2:262, para. 6(e). For example,
Dibon employees Vivek Sharma and Mahesh Vemula, both of
5
whom dealt directly with Martinair during the relevant project,
maintained “@RTScorp.com” e-mail addresses. CR 2:262, para.
6(e).
f. Dibon undertook efforts to market its newly-acquired Software
Business and referred to the software and its various components,
when dealing with third parties, as Dibon’s “RTS” products. CR
2:262, para. 6(f); an invitation sent by Dibon to Martinair, inviting
the Martinair to attend Dibon’s “RTS User Conference 2008,” is
displayed at CR 2:341.
g. Prior to working with Martinair, Dibon changed the software itself
to reflect the fact that it was now owned by Dibon. CR 2:262,
para. 6(g); a screen shot of the software, “Copyright 2007 Dibon
Solutions, Inc.,” is displayed at CR 2:343.
h. Dibon personnel worked to implement Dibon’s software for the
benefit of its clients, including for Martinair. CR 2:262, para. 6(h).
i. Dibon programmed corrections and enhancements to the software,
including for Martinair. CR 2:262, para. 6(i).
j. Dibon purchased equipment used in the “RTS” software business,
including to implement the software for the benefit of Martinair.
CR 2:262, para. 6(j).
k. Dibon approved and paid for expenses arising from the “RTS”
software business, including expenses arising from the project with
Martinair. CR 2:262, para. 6(k).
9.
The Texas Secretary of State Forfeited RTS-TX’s Entity Status.
On February 10, 2006, about four months after RTS-TX transferred its assets and
stock to Dibon, the Texas Secretary of State forfeited RTS-TX’s right to do
business in the State of Texas. CR 2:300.
6
10.
Suffering Huge Financial Losses in Its Passenger Airline Business,
Martinair Undertook to Gain Profit Optimization Software. From 2005 to
2007, Martinair lost tens of millions of dollars from operating its passenger airline
service. CR 1:80, depo. pp. 30:22 – 31:13. In 2007 alone, Martinair lost over $68
million euros, which was an unprecedented annual loss for the company. CR 1:83,
depo. pp. 43:19-23 and 44:17-21.
11.
In 2007, Martinair determined to implement profit optimization
software as a potential means of mitigating these losses. CR 1:76, depo., p. 16:1422 and CR 1:84, depo., pp. 47:22 – 48:8.
12.
Dibon and Martinair Contracted in November 2007.
On
November 17, 2007 – with Dibon being the sole owner of the software, the sole
owner of the “RTS” and “Revenue Technology Services Corporation” trade names,
the sole party doing business in those assumed names, and the sole party owning
all client contracts, as detailed above – the Parties entered into a contract calling
for Dibon to provide its software to Martinair, the RTS Master Subscription Service
Agreement (“Software Agreement”). CR 1:152-213.
13.
The Software Agreement states on its face that it is between “Revenue
Technology Services Corporation (“RTS”)” and “Martinair Holland N.V.,” and
makes no specific mention of Dibon other than stating that “RTS is a trade name,”
that the software being provided is owned by “RTS” (the software was owned by
7
Dibon at the time of contracting, as detailed above) and listing Dibon’s contact
information as that of “RTS.” CR 1:152, third full para; 155, Section 13; and 159,
signature block.
14.
Dibon was secure in its exclusive ownership of all things “RTS” to be
utilized in performing the Software Agreement. By the time of the Software
Agreement, RTS-TX was nothing more than a shell company, such that Dibon was
the only “RTS” then doing business.
CR 2:305.
Moreover, the Software
Agreement -- beyond being proffered by Dibon, and necessarily requiring
performance by Dibon using its own software and personnel -- states that it “shall
inure to the benefit of and be binding upon Client [Martinair], RTS and their
respective successors and assigns” -- with Dibon being RTS-TX’s successor as of
October 4, 2005 (the date of the Purchase Agreement), if not deemed “RTS” itself.
CR 1:157, Section 24.5.
15.
Dibon Performed the Software Agreement, and Martinair
Acknowledged Dibon’s Performance as Satisfactory.
Dibon performed the
Software Agreement beginning in November 2007.
CR 2:263.
Dibon’s
performance included undertaking the actions listed and evidenced in Paragraphs
8(h)-(k), above.
16.
On June 16, 2008, Martinair approved Dibon’s software to “go live,”
i.e., Martinair confirmed in writing that Dibon’s software was implemented and
8
ready to begin making real-time recommendations regarding Martinair’s ticket
pricing (as opposed to operating solely in a testing environment or for training
purposes). CR 1:117, depo. pp. 179:24 – 180:4 and 181:4-13 CR 1:119, depo. p.
188:12-20; and CR 1:120, depo. pp. 192:20 – 193:8. In its own internal reporting,
Martinair stated that it had “tested and approved” the software on June 9, 2008,
and that the “system [was] ready for use” on June 16, 2008. CR 1:216, bottom of
page.
17.
After testing and approving Dibon’s software, Martinair approved and
then began paying each monthly subscription invoice submitted by Dibon. CR
1:109, depo. p. 143:15-20.
18.
Airline KLM, Long Waiting to Finalize Its Purchase of Martinair,
Finally Did So. In December 2008, large airline KLM purchased the entirety of
Martinair’s stock, a transaction that had been in the works throughout 2008 (i.e.,
during the Parties’ performance of the Software Agreement) but had been awaiting
approval of the European Union. CR 1:86, depo. pp. 55:21 – 56:7.
19.
KLM owned its own, in-house profit optimization software,
“Odyssey.” CR 1:77-78, depo. pp. 21:21 – 22:3 and 23:4-11.
20.
Martinair Purported to Terminate the Software Agreement
Hours After RTS-TX Could No Longer Be Reinstated as a Texas
Corporation. On February 10, 2009 -- the morning after the 3-year retroactive
9
reinstatement period had run for RTS-TX under Business Organizations Code,
Section 11.356(a)(1) -- Martinair transmitted an e-mail stating that it would no
longer perform the Software Agreement.
CR 2:345-47.
Martinair’s e-mail
conveyed the contents of a letter that Martinair claims to have mailed from the
Netherlands five days earlier, on February 6, 2009 (which would have been three
days before the deadline for RTS-TX’s reinstatement). CR 2:345.
21.
Martinair’s “termination” e-mail made no mention of any issue with
RTS-TX’s entity status. CR 2:345-47. (Notably, if RTS-TX’s entity status was
somehow considered an issue relevant to implementation and usage of the
software, RTS-TX could easily have been reinstated retroactively under Business
Organizations Code, Section 11.206 until February 9, 2009.) Instead, Martinair
alleged in its e-mail that the subject software did not function as promised. CR
2:346. And Martinair demanded damages for the alleged shortcomings of Dibon’s
software, including 1,600,000 euros for profits Martinair alleged it should have
been able to obtain from using the software.3 CR 2:347.
22.
Martinair Adopted KLM’s Software Before Leaving the
Passenger Business.
After terminating its performance under the Software
3
Martinair made this demand for “potential profits” (or “potential reduction in ongoing deficits”) despite the fact
that Martinair had agreed that such damages were not, in any case, recoverable under the Software Agreement. CR
2: 157, Section 24.1, “Limitation of Liability.”
10
Agreement, Martinair adopted the profit optimization software of its new parent
company, KLM. CR 1:87, depo. p. 60:10-22.
23.
However, Martinair continued to lose money after adopting KLM’s
software. CR 1:88, depo. pp. 62:19-24 and CR 1:92-93, depo. pp. 81:15 – 82:1.
24.
On September 23, 2010, Defendant announced that it was
discontinuing its passenger service entirely. CR 1:92, depo. pp. 80:10 – 81:4.
25.
Dibon Filed this Lawsuit in the Name of “Revenue Technology
Services Corporation.”
On March 11, 2009, approximately a month after
receiving Martinair’s termination e-mail, Dibon as “Revenue Technology Services
Corporation” filed (through predecessor counsel) the underlying lawsuit against
Martinair, alleging a single claim for breach of contract. CR 1:8-13. (As detailed
further herein, it is Dibon’s position that it filed this lawsuit against Martinair using
its assumed business name, which it had earlier purchased from RTS-TX along
with the software.)
26.
Martinair Filed Counter-claims. Nearly two years later, on January
28, 2011, Martinair filed various counter-claims against “Revenue Technology
Services Corporation,” including for breach of contract and fraudulent inducement.
CR 1:18-26.
27.
In the Course of the Ensuing Litigation, Dibon Filed a Motion for
Partial Summary Judgment Against Martinair. On June 8, 2011, Dibon, again
11
as “Revenue Technology Services Corporation,” filed a motion for partial
summary judgment. CR 1:44-235. Among other relief sought, Dibon requested
the Court summarily adjudicate against Martinair the company’s claim that it was
fraudulently induced into entering into the Software Agreement. CR 1:44-235.
28.
Martinair Asserted “Capacity” as an Affirmative Defense and,
Simultaneously, Filed a Motion for Partial Summary Judgment on That Issue.
A week after Dibon filed its motion for partial summary judgment, on June 14,
2011, more than two years after the lawsuit was filed, and on the last day for the
Parties to amend their pleadings prior to trial under the Trial Court’s then-existing
scheduling order (CR 1:27-28), Martinair amended its answer and asserted for the
first time that RTS-TX (who Martinair identified as the plaintiff) lacked capacity to
bring the lawsuit as a result of that entity’s February 9, 2006 forfeiture. CR 1:372381 [Martinair raised a “capacity” defense at CR 1:375].4
29.
The same day, Martinair filed a motion for summary judgment on this
newly-asserted defense. CR 1:246-371. Specifically, Martinair asserted that “RTS
is barred by Texas law from suing Martinair on the contract because forfeited
entities or terminated entities such as RTS have a limited period of time in which
to bring claims on their behalf and that deadline had already passed before RTS
filed this action against Martinair.” CR 1:249, third full para.
4
A “capacity” affirmative defense must be verified. Tex. R. Civ. P. 93. Apparently in error, Martinair attached a
client verification to its amended answer that was dated January 28, 2011, six months before the existence of the
answer it was intended to verify. CR 1:381.
12
30.
In Accordance with Rule 28, Dibon Promptly Amended Its
Petition to State its “True Name.” On June 29, 2011, in response to Martinair’s
contention that RTS-TX’s forfeited status serves as a shield to Martinair’s liability
under the Software Agreement (as set forth in Martinair’s motion for summary
judgment), and in accordance with Rule 28, Dibon amended its petition for the sole
purpose of clarifying these facts: 1) Dibon, as the owner of the “Revenue
Technology Services Corporation” and “RTS” trade names and the software at
issue, and the party that performed the Software Agreement until Martinair’s
termination, is the plaintiff in the lawsuit; 2) the legal name of Dibon as the
plaintiff in the lawsuit is “Dibon Solutions, Inc. d/b/a ‘Revenue Technology
Services Corporation”; and 3) Dibon is additionally the sole shareholder of the
asset-less corporate entity, RTS-TX, which was forfeited on February 9, 2006, and
would have alternative standing on that basis. CR 1:428-32. In amending its
petition, Dibon did not assert any new cause of action against Martinair but instead
made clear the amendment was solely for the purpose of satisfying Rule 28. CR
1:428-32. A copy of Dibon’s amended petition is set forth in this brief’s appendix,
App. tab 1.
31.
The Trial Court Continued the Trial Date Several Months, and
the Parties Agreed to Cooperate Regarding New Pre-trial Deadlines. On July
14, 2011, in response to an agreed motion by Dibon and Martinair, the Trial Court
13
issued an order continuing the trial date in the case from August 2, 2011 to
November 1, 2011. CR 2:13. The Trial Court did not specify other modifications
to its then-existing scheduling order. CR 1:27 (existing scheduling order) and 2:13
(order continuing trial date).
32.
The same day, Dibon’s counsel requested that the Parties cooperate in
establishing new deadlines leading up to the new trial date.
CR 2:349.
In
response, Martinair’s counsel stated, “Of course.” CR 2:349.
33.
The Trial Court Granted Dibon Summary Judgment of
Martinair’s Fraudulent Inducement Claim. On July 15, 2011, the Trial Court
issued an order granting Dibon summary adjudication of Martinair’s fraudulent
inducement counter-claim. CR 2:15. Specifically, the Trial Court stated:
The Court has considered the Motion for Partial Summary Judgment
(“Motion”) made by plaintiff Dibon Solutions, Inc. d/b/a Revenue
Technology Services Corp. (“Plaintiff”) … . The Court is of the
opinion that Plaintiff’s Motion is meritorious in part. Therefore, the
Court hereby GRANTS Plaintiff’s Motion as to Defendant’s claim of
fraudulent inducement and ORDERS that such claim is summarily
adjudicated in favor of Plaintiff and is hereby dismissed.
CR 2:15, emphasis added; a copy of the Trial Court’s order is set forth in the
appendix to this brief, App. tab 2.
34.
The Trial Court Additionally Summarily Adjudicated that RTS-
TX Lacked Capacity to Sue Martinair. Also on July 15, 2011, the Trial Court
issued an order summarily adjudicating that “Texas corporation Revenue
14
Technology Services Corporation [RTS-TX; note: Dibon is a California
corporation], having been forfeited by the Texas Secretary of State on February 10,
2006, lacks capacity to prosecute claims in this lawsuit.” CR 2:14; a copy of the
Trial Court’s order is set forth in the appendix to this brief, App. tab 3.
35.
Following the Trial Court’s Order Regarding RTS-TX’s Lack of
Capacity, Martinair Asserted Various Counter-claims Against Dibon. On July
18, 2011, Martinair filed an amended answer and counter-claims against Dibon.
CR 2:218-33.
Martinair’s amended petition re-asserted Martinair’s fraudulent
inducement claim against Dibon (despite the Trial Court’s July 15, 2011 order
dismissing that claim). CR 2:15, 225. A copy of Martinair’s amended answer and
counter-claims is set forth in the appendix to this brief, App. tab 4.
36.
Martinair Filed a Motion to Strike Dibon’s Amended Petition. On
July 21, 2011, Martinair filed a motion to strike Dibon’s amended petition. CR
2:36-217. Therein, Martinair argued that Dibon was a new party to the case whose
petition should be struck on one of three grounds: 1) Dibon’s amended petition was
filed past the deadline for joinder set forth in the Trial Court’s then-existing
scheduling order; 2) RTS-TX had failed to disclose in discovery its relationship
with Dibon and Dibon should be sanctioned for RTS-TX’s omission; and 3)
Dibon’s amended petition is “futile” because “it is not authorized to prosecute this
action … .” CR 2:36-37.
15
37.
In Deciding Martinair’s Motion to Strike, the Trial Court Found
that Dibon was an Intervenor to the Lawsuit Whose Intervention Violated the
Court’s Then-Existing Scheduling Order. Following a hearing on Martinair’s
motion to strike (CR 2:36-217[motion]; RR 2:1-25 [hearing]), and Dibon’s motion
for clarification of same (CR 3:5-12 [motion]; RR 3:1-14 [hearing]), the Trial
Court found that Dibon was an intervening party who, in intervening in the case,
violated the Trial Court’s then-existing scheduling order and struck Dibon’s
amended petition on that basis. CR 2:362. A copy of the Trial Court’s order is set
forth in the appendix to this brief, App. tab 5. At the hearing on Dibon’s motion
for clarification, the Trial Court stated, “My recollection – as I said, my
recollection is that the -- that the Motion to Strike was granted, it was – the
offending – the allegedly offending pleading was inconsistent with the Court’s
Scheduling Order.” RR 3:13, lines 20-24.
38.
Dibon Again Motioned the Trial Court to Accept an Amended
Petition. On July 28, 2011, Dibon filed a motion that the Court accept Dibon’s
second amended petition. CR 2:456-465. A copy of Dibon’s pleading is set forth
in the appendix to this brief, App. tab 6. The Trial Court denied Dibon’s motion,
finding, again, that “I am disinclined to permit the joinder of any new parties or the
filing of new causes of action or new claims at this time.” RR 3:19, lines 11-14.
16
39.
Martinair Dismissed Its Counter-claims Against Dibon.
On
October 18, 2011, Martinair filed a motion to non-suit, without prejudice, its
counter-claims against “Plaintiff Revenue Technology Services Corporation.” CR
3:399-401. Notably, at the time of its motion to non-suit, Martinair had claims
pending exclusively against Dibon, and none against RTS-TX – having earlier
amended its counter-claims to specify Dibon as the counter-defendant. CR 2:21833.
40.
The Trial Court granted Martinair’s motion for non-suit of its claims.
CR 2:402. A copy of the Trial Court’s order is set forth in the appendix to this
brief, App. tab 7.
41.
The Trial Court Entered Final Judgment in Favor of Martinair.
On October 31, 2011, the Trial Court entered its Final Judgment in the case, again
stating its finding that Dibon was a third-party intervenor whose intervention
violated the Trial Court’s then-existing scheduling order:
On July 27, 2011, the Court granted Defendant Martinair Holland
N.V.’s motion to strike Dibon Solutions, Inc.’s “Amended Petition”
based upon its findings that Dibon Solutions, Inc. was a new party to
the case and, in filing the “Amended Petition” on June 29, 2011,
Dibon Solutions, Inc. violated the Court’s then-existing scheduling
order.
CR 3:407.
A copy of the Trial Court’s Final Judgment is set forth in the appendix
to this brief, App. tab 8.
17
V.
SUMMARY OF ARGUMENT
Dibon amended its original petition to state its “true name” in accordance
with Rule 28. The Trial Court struck Dibon’s amended petition because the Trial
Court found that Dibon was a third-party intervenor whose amended petition
violated the Trial Court’s then-existing scheduling order.
The Trial Court’s striking of Dibon’s amended petition is erroneous because,
in amending its petition, Dibon precisely and timely complied with Rule 28
concerning the use and identification of an assumed name.
Moreover, the
undisputed evidence presented to the Trial Court demonstrates overwhelmingly
that Dibon operated the Software Business using its assumed names of “Revenue
Technology Services Corporation” and “RTS” before and during its dealings with
Martinair. Striking Dibon’s amended petition, besides being legally erroneous,
would work a great injustice in that it would allow a contracting party to take
unfair advantage of a mis-description within a contract from which that party has
already derived benefits.
The Trial Court compounded its error by holding that Dibon is a third-party
intervenor whose intervention must be struck because it violates the Trial Court’s
then-existing scheduling order. Dibon is not a third-party intervenor, but rather the
contracting party and original plaintiff who amended its petition in accordance
with Rule 28. Moreover, if Dibon was a third-party intervenor, the Trial Court’s
18
scheduling order could not preemptively forbid Dibon’s intervention, and the Trial
Court could not strike Dibon’s intervention after having granted Dibon relief in the
case and after Martinair asserted counter-claims against Dibon.
VI.
ARGUMENT
Dibon respectfully submits the following argument on the two issues
presented to the Court:
DIBON’S ISSUE 1:
Whether the Trial Court erred in striking
Dibon’s amended petition given that: a) Dibon precisely and timely
complied with Rule 28 in identifying its “true name” by means of an
amended petition; b) the undisputed evidence demonstrates
overwhelmingly that Dibon operated its business using its trade names
of “Revenue Technology Services Corporation” and “RTS” before and
during its dealings with Martinair; and c) striking Dibon’s amended
petition would work an injustice in that it would allow a party to receive
all the benefits of a contract -- from the party actually performing that
contract -- and then, to avoid providing the reciprocal consideration it
owes, simply deny the existence of the contract based upon a misdescription of the performing party.
The Trial Court struck Dibon’s amended petition although such petition did
nothing more than set forth Dibon’s “true name” in strict compliance with Rule 28.
The Trial Court’s determination in this regard was erroneous for the following
reasons.
19
A.
Dibon precisely and timely complied with Rule 28 in identifying
its “true name” by means of an amended petition.
Since at least 1916, Texas law has held that the identity of a party as stated
within the text of a contract is “immaterial” as compared to the identity of the party
who actually authorizes, ratifies, adopts or performs such contract.
The fact that the contracts were made in the name of the Globe
Line is immaterial. The plaintiff having authorized the execution
of the contracts and recognized and adopted them after their
execution, they became plaintiff’s contracts, and it was bound
thereby. When a contract has been partly performed, recognized or
ratified by a corporation for whom the contract was in fact made,
suit may be brought by the corporation on such contract,
notwithstanding that there is nothing on the face of the contract to
connect the corporation therewith. It seems to be well settled that
a corporation may have more than one name. In addition to the
name given it by its charter it may acquire other names by use or
reputation.
W.B. Clarkson & Co. v. Gans S.S. Line, 187 S.W. 1106 (Tex.App.—Galveston
1916), emphasis added; 15 Tex. Jur. 3d Corporations, “Authority to bring suit on
behalf of corporation,” § 308 (2011).
Where a party has authorized, adopted or performed a contract but such
contract does not, on its face, specify that party as one of the contracting parties
(either because of mis-description or omission), and such party wishes to maintain
an action on that contract, Rule 28 (“Suits in Assumed Names”) may be
implicated. Tex. R. Civ. P. 28; a copy of Rule 28 is set forth at App. tab 9.
20
Under Rule 28, a party that has conducted some business under an assumed
name may “sue or be sued” in that assumed name “for the purpose of enforcing for
or against it a substantive right.” Tex. R. Civ. P. 28; Sixth RMA Partners, L.P. v.
Sibley, 111 S.W.3d 46, 53 (Tex. 2003); Chilkewitz v. Hyson, 22 S.W.3d 825, 829
(Tex. 1999)
For purposes of Rule 28, an “assumed name” is simply a word or phrase by
which a party may be identified to others. CA Partners v. Spears, 274 S.W.3d 51,
69, fn. 11 (Tex.App.—Houston 2008), citing Indus. Accident Bd. V. Tex.
Workmen’s Comp. Assigned Risk Pool, 490 S.W.2d 956, 959 (Tex.App.—Austin
1973, no writ). A party may have as its assumed name the name of another
existing person or entity, even where such party has a business relationship with
the other person or entity. See, e.g., Sixth RMA Partners, L.P., supra, 111 S.W.3d
at 52 and Chilkewitz, supra, 22 S.W.3d at 829, discussed in greater detail below.
If an opposing party complains of a party prosecuting an action under an
assumed name, or if the trial court requires the party using an assumed name to
identify its legal name, “the true name may be substituted” in the party’s petition.
Tex. R. Civ. P. 28.
Rule 28 does not specify the procedural method by which a party is to
substitute its legal name for its assumed name. Tex. R. Civ. P. 28; Sixth RMA
Partners, L.P., supra, 111 S.W.3d at 53.
21
But the Texas Supreme Court has
determined that a plaintiff may accomplish such substitution by, among other
means, simply amending its petition “at some point before judgment.” Chilkewitz,
supra, 22 S.W.3d at 829; Sixth RMA Partners, L.P., supra, 111 S.W.3d at 53.
Here, Dibon amended its petition immediately upon Martinair raising the
issue of who, as between Dibon and former corporation RTS-TX, is a proper party
to the Software Agreement. CR 1:428-32. Dibon did not add any new claims or
parties, but solely identified its legal name as owner of the trade names, “Revenue
Technology Services Corporation” and “RTS.”
CR 1:428-32.
Dibon thus
identified its true name by amending its petition well before judgment in the case
and in precise and timely compliance with Rule 28 and relevant case law. Tex. R.
Civ. P. 28; Chilkewitz, supra, 22 S.W.3d at 829; Sixth RMA Partners, L.P., supra,
111 S.W.3d at 53.
The Trial Court had no basis to strike Dibon’s amended petition, much less
the legally-defective basis relied upon by the Trial Court (discussed in the next
section).
22
B.
The undisputed evidence demonstrates overwhelmingly that
Dibon operated its business using its trade names of “Revenue
Technology Services Corporation” and “RTS” before and during
its dealings with Martinair.
Dibon’s amended petition stating its legal name pursuant to Rule 28
superseded entirely Dibon’s prior petition and any mis-description or omission
therein.
A party’s original petition, once amended, is of no legal effect in
determining the identity of the parties because such pleading “shall no longer be
regarded as part of the pleading in the record of the cause.” Tex. R. Civ. P. 65.
(Logically, to argue that a mis-description or omission set forth in a superseded
pleading has legal force despite having been corrected by amendment is to argue
that Rule 65 has no purpose or effect.)
Moreover, a party’s amended pleading is to be taken as factually accurate
unless and until proven otherwise. Bland Indep. School District v. Blue, 34 S.W.3d
547, 554-55 (Tex. 2000); Texas Ass’n of Business v. Texas Air Control Board, 852
S.W.2d 440, 443 (Tex. 1993).
Where an opposing party seeks to challenge a party’s Rule 28 amendment,
as Martinair arguably did in filing a motion to strike, it is incumbent upon the trial
court to determine whether the party asserting a trade or fictitious name has, as a
factual matter, actually conducted business in the assumed name(s) at issue. CA
23
Partners, supra, 274 S.W.3d at 69, citing the Texas Supreme Court’s decisions in
both Chilkewitz and Sixth RMP Partners, L.P.
It is not necessary for the party asserting an assumed name to proffer
evidence that it solely or even predominantly used such assumed name; a party
need only offer “some evidence” that it has used the assumed name at some point
in its business dealings. Id.; Chilkewitz, supra, 22 S.W.3d at 829 [There need only
be “some evidence” of usage of an assumed name.]; Sixth RMA Partners, L.P.,
supra, 111 S.W.3d at 52 [“[U]nder the applicable standard of review, we must look
for some evidence that [the plaintiff] used … an assumed name.”]. The “some
evidence” standard is the only standard a trial court could reasonably apply
because the existence of an assumed name cannot be measured against some
arbitrary standard of usage such as, for example, 30 percent of a party’s dealings.
The two Texas Supreme Court cases cited above are instructive in analyzing
whether Dibon provided to the Trial Court sufficient evidence of Dibon’s use of
the subject assumed names. In the Chilkewitz case, plaintiff Peter Chilkewitz
(“Chilkewitz”) originally sued defendant Morton Hyson, M.D. (“Hyson”) for
negligence (botched surgery) within the applicable limitations period. Chilkewitz,
supra, 22 S.W.3d at 827. After the limitations period ran as to a negligence claim,
Hyson filed a motion for summary judgment asserting that he, individually, did not
perform the alleged negligent surgery at issue, but rather the professional
24
association for which he worked did.
Id.
In response, Chilkewitz filed an
amended petition purporting to correct a misnomer and identifying the professional
association as the true defendant. Id. The professional association, in turn, filed a
motion for summary judgment claiming Hyson had been the true defendant from
the initiation of the action and that the association was brought into the case too
late. Id. The trial court denied the association’s motion for summary judgment,
finding that the association had used Hyson’s name as an assumed name in some
of its business dealings and thus had been properly sued in the first instance. Id.
The Court of Appeals reversed. Id. at 825. In upholding the trial court’s decision,
and reversing the Court of Appeals en banc, the Texas Supreme Court held that
Rule 28 permitted Chilkewitz to amend his petition without repercussion
regardless of whether his original petition contained a “misidentification,
misnomer, or both” because Chilkewitz could sue the professional association in
its assumed name of “Morton Hyson, M.D.” since there existed “some evidence”
(in the Chilkewitz case, “some evidence” was stationary and a phone listing) that
the association had used that name in its business dealings. Id. at 828-29.
Here, although Chilkewitz described Hyson as an individual in his
original petition, his suit against Morton Hyson, M.D. was effective to
commence suit against the Association doing business under the name
of Morton Hyson, M.D. Of course, at some point before judgment,
the plaintiff must amend the petition to add the correct legal name of
the actual defendant. [citation omitted]
25
Id. at 829.
In the Sixth RMA Partners, L.P. case, plaintiff Sixth RMA Partners, L.P.
(“Sixth RMA”) purchased two promissory notes given by defendant Thomas
Sibley (“Sibley”). Sixth RMA Partners, L.P., supra, 111 S.W.3d at 49. Sixth
RMA, at the time, was related to another existing legal entity, RMA Partners, L.P.
(“RMA”). Id. at 51. In July 1995, RMA sued Sibley on the promissory notes. Id.
at 49. A few months later, RMA forfeited its corporate charter. Id. at 51. In
defense of RMA’s lawsuit, Sibley claimed that he did not owe RMA any monies
since Sixth RMA owned the notes, and that Sixth RMA could not assert claims in
the case because it had never entered the case as a plaintiff. Id. In response, RMA
supplemented its pleadings to assert that Sixth RMA was the proper plaintiff, that
describing “RMA” as the plaintiff in the original petition was a misnomer, and that
Sixth RMA had previously used the assumed name of “RMA” in some of its work.
Id. at 50. The trial court overruled Sibley’s objections to Sixth RMA’s changed
pleadings. Id. at 51. The court of appeals reversed, holding that Sixth RMA was
not the proper plaintiff in the case. Id. In reversing the court of appeals, and
finding that Sixth RMA was the proper plaintiff despite its earlier pleadings, the
Supreme Court of Texas stated:
Because Sixth RMA and RMA were separate but related business
entities that had similar names, the parties have made numerous and
lengthy arguments in this Court and the courts below regarding the
common-law doctrines of misnomer and misidentification. However,
26
this Court has held that neither of those doctrines “operates to the
exclusion of Rule 28 where there are facts that call Rule 28 into play.”
Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999).
…
Sibley repeatedly asserts that Sixth RMA and RMA were separate
legal entities. This fact is undisputed; Sixth RMA concedes that it is
not, and never was, the same entity as RMA. But that is not the
relevant inquiry. Rather, under the applicable standard of review, we
must look for some evidence that Sixth RMA used the name RMA
Partners, L.P. as an assumed name when collecting Sibley’s notes.
Id. at 52, emphasis added. The Supreme Court of Texas found that testimony from
Sixth RMA that is used RMA as an assumed name, along with evidence that
monies directed to RMA were ultimately distributed to Sixth RMA, constituted
sufficient evidence under the applicable legal standard. Id. The Court held that,
because the “some evidence” standard of assumed name usage had been met, “the
original petition filed in July 1995 under the name RMA Partners, LP was effective
to commence suit against Sibley on behalf of Sixth RMA.” Id.
The authority and reasoning set forth in the Chilkewitz and Sixth RMA
Partners, L.P. cases has been adopted and relied upon repeatedly by the Texas
Supreme Court and lower courts. See e.g., Molinet v. Kimbrell, 2011 Westlaw
182230 (Tex. 2011) and Reddy Partnership/5900 North Freeway, L.P. v. Harris
Co. Appraisal Dist., 2011 Westlaw 166930 (Tex.App.—Houston 2011).
In this case, the Trial Court was presented with substantially more than
“some evidence” of Dibon’s usage of the subject assumed names - - in fact, the
27
Trial Court was presented with substantially more evidence than existed in the
Chilkewitz or Sixth RMA Partners, L.P. cases combined. See Statement of Facts,
Fact No. 8, above, CR 2:262, 339, 341 and 342. Dibon provided undisputed
evidence to the Trial Court that it owned and used these assumed names in every
aspect of its dealings with Martinair, from the onset to the end of the Parties’
relationship. CR 2:262, 339, 341 and 342. Some of the more prominent examples
include:
a. All “RTS” operations during the subject time period were
conducted from Dibon’s office in Carrollton, Texas, which office
had a large sign reading “RTS” on the outside. CR 2:262, para.
6(a).
b. Dibon provided Martinair with “RTS” business cards and other
materials while working on the Software Project. CR 2:262, para.
6(c).
c. The website for Dibon’s Software business during the Software
Project was www.dibonrts.com. CR 2:262, para. 6(d).
d. Dibon referred to the Software and its various components, when
dealing with Martinair, as Dibon’s “RTS” products. CR 2:262,
para. 6(f).
e. The Software itself, just as it was presented to Martinair perhaps
thousands of times, states “RTS Profit Optimization Copyright
Dibon Solutions, Inc.” CR 2:262, para. 6(g).
It cannot reasonably be argued that Dibon did not, as a factual matter, use
the assumed names of “RTS” and “Revenue Technology Services Corporation” in
its dealings with Martinair. In fact, the only place where Dibon is not expressly
28
identified to the Parties’ software project is in the Software Agreement itself (other
than Dibon’s address, which is set forth as the address for “RTS”). CR 1:159.
That single written omission is, according to Rule 28 and the Supreme Court of
Texas, immaterial.
Beyond the factual reality of Dibon’s usage of its assumed names, it should
be noted that, as a legal matter, RTS-TX sold its trade name, including any
copyright privileges and intangible assets (e.g., goodwill) arising from that trade
name, to Dibon on October 4, 2005 – i.e., prior to RTS-TX’s forfeiture by the
Secretary of State, and prior to the Software Agreement between Dibon and
Martinair. CR 2:305, 322-23 and 325. Thus, the Software Project and all facts
giving rise to this case occurred after RTS-TX had transferred its assets to Dibon
and ceased existing even as an asset-less entity. Given this timing, no one else but
Dibon could be said to have undertaken the business dealings with Martinair. No
other party possessed the resources that were employed for Martinair’s benefit.
The trade names were owned by Dibon. The software was owned by Dibon. The
equipment was owned by Dibon. All personnel involved in implementation worked
for Dibon. Consequently, it must be said that, as a legal matter, Dibon has done
business as “RTS” and “Revenue Technologies Services Corporation” in providing
services to Martinair.
29
It should additionally be noted that, because it failed to file “no tax”
franchise tax returns, RTS-TX ceased to exist as a corporate entity on February 10,
2006. CR 2:300; Tex. Tax Code §§ 171.0001(5) [definition of “charter”] and
171.309 ) [forfeiture of charter]. Thus, notwithstanding its earlier transfer of the
subject trade names to Dibon, RTS-TX lost its corporate name at the time of its
forfeiture. Tex. Tax Code §§ 171.315. In other words, as a legal matter, the name
“Revenue Technologies Services Corporation” ceased identifying RTS-TX to the
public as of the date of that entity’s forfeiture.
In summary, the question presented to the Trial Court, in determining
whether or not Dibon’s Rule 28 amendment was proper and sustainable, was solely
whether there exists “some evidence” that Dibon used “Revenue Technology
Services” or “RTS” as a fictitious business name prior to or during its dealings
with Martinair.5 Setting aside that Martinair did not challenge the sufficiency of
Dibon’s evidence of having used trade names in its motion to strike (CR 2:36-217),
While asserting its right to amend pursuant to Rule 28, Dibon alternatively
asserted its standing as the sole shareholder of the asset-less RTS-TX. CR 1:42832. Texas law holds that “the stockholders [of a forfeited entity], as beneficial
owners of the assets of the corporation, may prosecute or defend such actions in
the courts as may be necessary to protect their property rights.” Regal
Construction Company v. Hansel, 596 S.W.2d 150, 153 (Tex.App.—Houston
1980, rehearing denied) citing Humble Oil & Refining Co. v. Blankenburg, 149
Tex. 498, 503 (Tex. 1951). However, because it made its determination based
upon its view that its scheduling order had been violated, the Trial Court rendered
no determination on this issue. Dibon maintains its position that, even if the Trial
Court had found the Software Agreement to be solely RTS-TX’s contract, Dibon
would still have standing to intervene and assert a claim against Martinair.
5
30
the sufficiency of the evidence presented by Dibon is plain. If the mere usage of
letterhead is sufficient to establish an assumed name under Texas law (Chilkewitz,
supra, 22 S.W.3d at 828-29), then surely the broad and persistent usage undertaken
by Dibon, detailed above, is as well.
C.
Striking Dibon’s amended petition would work an injustice in
that it would allow a party to receive all the benefits of a contract
-- from the party actually performing that contract -- and then, to
avoid providing the reciprocal consideration it owes, simply deny
the existence of the contract based upon a mis-description of the
performing party.
If Martinair were allowed to use a mis-description or omission as a complete
defense to contractual liability under the Software Agreement, an unfair and
perversely-incentivized precedent would be created in the law. A party could enter
into a contract where the opposing party is described in the contract as an entity
that either does not exist, or does exist but suffers some legal disability. Such party
could then accept the benefits of the contract from a party actually performing the
work – thus recognizing the contract’s existence for at least its own purposes -but, when the time came for such party to pay for such benefits, the party could
simply balk and argue that no claim could be brought against it because the party
31
described in the contract is unable to bring suit. Such circumstance would be
tantamount to pre-meditated theft by contract.
Martinair proves that such conduct is not hypothetical. Recall that Martinair
announced by e-mail it would not perform the Software Agreement – thus giving
rise to Dibon’s claim against Martinair -- the morning after RTS-TX had been
forfeited for precisely three years.
CR 2:345-47. Martinair thus utilized the
Software Agreement to gain Dibon’s performance then disavowed that contract
when it came time to pay for Dibon’s performance by arguing the contract could
only be enforced by RTS-TX.
Martinair’s argument that no one ever had the opportunity to enforce the
Software Agreement against it, once Martinair determined to breach such
agreement, is not consistent with the letter or spirit of the law. Such an unjust
“defense” to contractual performance should not be emplaced due solely to a single
written mis-description or omission that is at odds with all other evidence of the
Parties’ dealings and Rule 28.
32
DIBON’S ISSUE 2:
Whether the Trial Court erred in striking
Dibon’s amended petition as a third-party intervention that violated
the Trial Court’s scheduling order given that: a) Dibon is not a thirdparty intervenor but rather the original plaintiff in the case; b) if Dibon
was a third-party intervenor, the Trial Court’s scheduling order could
not preemptively forbid Dibon’s intervention; and c) if Dibon was a
third-party intervenor, the Trial Court could not strike Dibon’s
intervention after the Trial Court had previously granted Dibon
summary judgment and Martinair had previously asserted counterclaims against Dibon.
The Trial Court compounded its error of striking Dibon’s Rule 28
amendment by holding that Dibon is a third-party intervenor whose intervention
violated the Trial Court’s then-existing scheduling order.
The Trial Court’s
finding, and the fact that such finding serves as the basis of the Trial Court’s
decision, is clearly articulated in the Trial Court’s Final Judgment:
On July 27, 2011, the Court granted Defendant Martinair Holland,
N.V.’s motion to strike Dibon Solutions, Inc.’s “Amended Petition”
based upon its findings that Dibon Solutions, Inc. was a new party to
the case and, in filing the “Amended Petition” on June 29, 2011,
Dibon Solutions, Inc. violated the Court’s then-existing scheduling
order.
CR 3:407, App. tab 8. The Trial Court’s decision is erroneous for the following
reasons.
A.
Dibon is not a third-party intervenor but rather the original
plaintiff.
33
As detailed in the section above, Dibon is not a third-party intervenor in this
case but rather the party original plaintiff who, in accordance with Rule 28,
identified its true name by means of amended pleading.
B.
If Dibon was a third-party intervenor, the Trial Court’s
scheduling
order
could
not
preemptively
forbid
Dibon’s
intervention.
The Texas Rules of Civil Procedure, Rule 60 (“Rule 60”) holds:
Any party may intervene by filing a pleading, subject to being stricken
out by the court for sufficient cause on the motion of a party.
Tex. R. Civ. P. 60.
There is no deadline for a party to intervene in a lawsuit, other than perhaps
entry of final judgment. Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex.
2008). A trial court, then, cannot impose such a deadline. Id.; Tex. R. Civ. P. 60.
Beyond that, and especially applicable here where the Trial Court has
determined that Dibon’s amended petition must be struck as a violation of the Trial
Court’s scheduling order6, an intervenor may intervene as a matter of right and is
not required to gain the trial court’s approval before doing so. Guaranty Fed. Sav.
Bank v. Horseshoe Oper. Co., 793 S.W.2d 652, 657 (Tex. 1990). A trial court may
not strike an intervention of the trial court’s own initiative. Id. A trial court is
6
It should be noted that the Trial Court’s then-existing scheduling order makes no statement concerning third-party
interventions. CR 1:27-28. The Trial Court “interpreted” the subject order’s prohibition against joinder to extend to
interventions as well. RR 3:11-13.
34
completely without legal authority to prohibit an intervention from being filed, or
to strike an intervention once filed without an existing party (not the trial court)
establishing a basis to do so by means of noticed motion. Id. It is an abuse of
discretion for a trial court to strike an intervention for reasons related solely to the
court’s own previously-stated scheduling dictates. Id.; see also In re Marriage of
J.B and H.B., 326 S.W.3d 654, 660 (Tex.App. – Dallas 2010).
A trial court may only strike an intervention where an existing party in the
lawsuit demonstrates that the intervenor does not have a justiciable interest in the
case, the intervention would complicate the case through a multiplication of issues,
and the intervention is not necessary to protect the intervenor’s interests. Guaranty
Fed. Sav. Bank, supra, 793 S.W.2d at 657.
Notwithstanding the fact that the Trial Court’s stated reasoning for striking
Dibon’s amended petition did not touch on any of the legally-permissible bases to
strike, the motion to strike filed by Martinair did not either. Martinair’s motion to
strike asserted three grounds: 1) Dibon’s amended petition was filed past the
deadline for joinder set forth in the Trial Court’s then-existing scheduling order; 2)
RTS-TX had failed to disclose in discovery its relationship with Dibon; and 3)
Dibon’s amended petition is “futile” because “it is not authorized to prosecute this
action … .” CR 2:36-37. Such a motion to strike is deficient as a matter of law.
Guaranty Fed. Sav. Bank, supra, 793 S.W.2d at 657.
35
If Dibon were properly viewed by the Trial Court as an existing party to the
case, the Trial Court may have, upon a motion by Martinair, analyzed whether
Martinair was unfairly surprised by Dibon’s amended petition. Texas law holds
there may prejudicial surprise where the plaintiff has asserted a new claim or
defense. Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664,
665 (Tex. 1992). But here, because Dibon’s amended petition did nothing more
than identify Dibon’s trade names, and did not assert any new claims or even add
one new witness (Martinair was already well aware of Dibon’s involvement and
had identified Dibon personnel as witnesses in the case) (CR 1:428-32), Martinair
could not have claimed surprise of any substantive impact even if it had filed a
motion to that end.
There simply was no lawful basis for the Trial Court to strike Dibon’s
amended petition, much less the one relied upon by the Trial Court.
C.
If Dibon was a third-party intervenor, the Trial Court could not
strike Dibon’s intervention after the Trial Court had previously
granted Dibon summary judgment of one of Martinair’s claims
and Martinair had previously asserted counter-claims against
Dibon.
A trial court must address a third-party intervention before addressing any
other matters concerning the intervening party. In re Union Carbide Corp., 273
36
S.W.3d 152, 156 (Tex. 2008). That did not happen in this case. Instead, the Trial
Court and Martinair recognized that Dibon has a justiciable interest in the case
before the Trial Court struck Dibon’s amended petition.
As noted above, whether the intervenor has a justiciable interest in the
lawsuit (i.e., whether the intervening party can gain or defeat some recovery in the
lawsuit) is a critical part of the trial court’s analysis when considering a proper
motion to strike:
Because intervention is allowed as a matter of right, the “justiciable
interest” requirement is of paramount importance: it defines the
category of non-parties who may, without consultation with or
permission from the original parties or the court, interject their
interests into a pending lawsuit to which the intervenor has not been
invited …. .
In re Union Carbide Corp., supra, 273 S.W.3d at 154-55; Guaranty Fed. Savings
Bank, supra, 793 S.W.2d at 657.
Here, the Trial Court granted Dibon summary judgment of Martinair’s
fraudulent inducement claim (CR 2:15, App. tab 2) before it struck Dibon’s
amended petition (CR 2:362, App. tab 5). Additionally, Martinair asserted various
counter-claims against Dibon, including claims Martinair had not asserted prior to
Dibon’s Rule 28 amendment, before the Trial Court struck Dibon’s amended
petition. CR 2:218-33.
37
With Dibon defeating Martinair’s claim for fraudulent inducement, and
potentially defeating Martinair’s counter-claims against it, Dibon must be held to
have a justiciable interest in the case as a matter of law. Moreover, Martinair, in
asserting counter-claims against Dibon, and recognizing Dibon’s party status, must
be held to have waived its right to thereafter seek to strike Dibon’s amended
petition.
VII.
PRAYER
Dibon respectfully requests the Court reverse the Trial Court’s order striking
Dibon’s Amended Petition; find that Dibon’s Amended Petition was a proper
identification of the company’s “true name” pursuant to the Texas Rules of Civil
Procedure, Rule 28; and remand the case for further proceedings.
Respectfully submitted,
________________________
William J. Garrison
Texas State Bar No. 24043411
Scheef & Stone, L.L.P.
500 N. Akard Street, Suite 2700
Dallas, Texas 75201
(214) 706-4200 (phone)
(214) 706-4242 (fax)
ATTORNEYS FOR APPELLANT
DIBON
SOLUTIONS,
INC.
d/b/a
“REVENUE TECHNOLOGY SERVICES
CORPORATION”
38
CERTIFICATE OF SERVICE
I certify that, on March 19, 2011, Dibon served a true and correct copy of
the foregoing Appellant’s Brief upon appellee Martinair Holland, NV via overnight
delivery pursuant to the Texas Rules of Appellate Procedure:
1. Paula K. Knippa, Slack & Davis, LLP, 2705 Bee Cave Road, Suite 220,
Austin, Texas 78746.
_____________________________
William J. Garrison
39
APPENDIX
Tab
Document
1.
Plaintiff’s Amended Petition.
2.
Order Granting In Part Defendant’s Motion for Summary Judgment.
3.
Order Granting In Part Plaintiff’s Motion for Partial Summary Judgment.
4.
Defendant Martinair Holland N.V.’s Fourth Amended Original Answer,
Affirmative Defenses and Counterclaims as to Plaintiff Dibon Solutions, Inc.
d/b/a Revenue Technology Services Corp.’s (“RTS”) Amended Petition.
5.
Order Granting Defendant Martinair Holland N.V.’s Second Amended
Motion to Strike Dibon Solutions, Inc. d/b/a Revenue Technology Services
Corp.’s Amended Petition.
6.
Plaintiff’s Motion that the Court Accept Plaintiff’s Second Amended
Petition.
7.
Order Granting Notice of Nonsuit.
8.
Final Judgment.
9.
Texas Rules of Civil Procedure, Rule 28.
40
I'
•
.. .I
i",
j... f"".
, .... t...... ...
No. 09-02903
. 20 II .JUN29 AM II: I 0
REVENUE TECHNOLOGY SERVICES
CORP. ("RTS"),
§
§.
§
§ ---t-t-~
§
§
§
§
Plaintiff,
v.
§
MARTINAIR HOLLAND N.V.,
§
§
§
Defendant.
DALLAS COUNTY, TEXAS
PLAINTIFF'S AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Dibon Solutions, Inc. d/b/a Revenue Technology Services Corp. ("RTS") (herein
"Plaintiff") respectfully files, and hereby motions the Court to accept, this Amended Petition
("Amended Petition") complaining of Martinair Holland N.V. (herein "Defendant"). In support
of this Amended Petition, Plaintiff pleads the following:
I.
1.
PARTIES
Plaintiff is a corporation organized under the laws of the State of California.
Plaintiff conducts business through an office at 2009 Chennault Drive, Suite 100, Carrollton,
Texas 75006, in Dallas County, Texas.
2.
Defendant is an entity organized under laws of The Netherlands, and has its
principal place of business at 1118Z0 Schipol Airport, Amsterdam, The Netherlands.
Page 1
428
•
II.
3.
•
DISCOVERY CONTROL PLAN
Pursuant to Texas Rule of Civil Procedure 190, Plaintiff intends that discovery be
conducted in this lawsuit under Level 3 pursuant to an existing scheduling order.
III.
4.
JURISDICTION AND VENUE
This Court has jurisdiction over Defendant because the matter in controversy falls
within this Court's general jurisdiction and the amount in controversy exceeds the Court's
mininlum jurisdictional limits. This Court has personal jurisdiction over Defendant pursuant to
TEX. CIV. PRAC. & REM. CODE § 17.042 because Defendant entered into a series of
agreenlents, by mail or otherwise, with Plaintiff to be perfonned in whole or in part in Texas.
5.
Venue is proper in Dallas County, Texas, under TEX. ClV. PRAC. & REM.
CODE §15.002( a)(1) because it is the county where all or a substantial part of the events or
omissions giving rise to the claim occurred.
IV.
6.
FACTUAL BACKGROUND
Plaintiff and Defendant negotiated and, effective November 29, 2007, entered into
a contract, the Master Subscription Service Agreement (herein "Agreement"), whereby Plaintiff
would provide professional services and certain profit optimization software (herein "Software")
to Defendant.
7.
From at least 2005 to the present, Plaintiff has owned the Software provided to
Defendant pursuant to the Agreement.
Personnel employed by Plaintiff implemented the
Software for Defendant's utilization. (Plaintiff additionally owns all of the stock of Revenue
Technology Services Corp., the Texas corporation that previously owned the Software, and
would thus be entitled to sue in that representative capacity if it were determined that the
Page 2
429
Software was not properly transferred to Plaintiff by means of a October 4, 2005 purchase
agreement. 1)
8.
After Plaintiff implemented the Software for the benefit of Defendant, a 60-month
subscription term commenced during which period Defendant was required to pay a monthly fee
~!
to Plaintiff. This 60-month term began on June 16, 2008, after Martinair confirmed in writing
that the Software was in place and operating to its satisfaction.
'.
9.
After having paid for only 6 months of the required payments, and despite having
contractually promised not to terminate the Agreenlent prior to the expiration of 36 months (and
then only if Defendant had utilized the software at a specified level with inadequate results as
measured by agreed criteria), Defendant notified Plaintiff that it was refusing to further perform
the Parties' Agreement.
10.
Pcr the temlS of the agreement, there is no termination "without cause" and any
termination within the initial Subscription Period of 60 months causes the balance of the contract
sum to become due and owing.
11.
Defendant has failed to pay Plaintiff for the services provided and improperly
terminated the Agreement. Defendant has thus breached the Agreement.
12.
As a result of Defendant's breach, Defendant is responsible for paying the
remaining monies owed under the Agreement, prejudgment and post-judgment interest, and all
reasonable and necessary attomeys' fees.
V.
13.
COUNT ONE - BREACH OF CONTRACT
Pursuant to Rule 58 of the Texas Rules of Civil Procedure, Plaintiffrealleges and
incorporates by reference herein all allegations set forth in paragraphs 1 through 12 above.
t
See Regal Construction Co. v. Hansel, 596 S.W.2d 150, 153 (Tex.App.-Houston 1979, rehearing denied).
Page 3
430
•
•
14.
All conditions precedent to the bringing of the causes of action in this Petition
have been performed, excused, waived, or otherwise satisfied.
15.
Plaintiff entered into a valid and enforceable Agreement with Defendant.
16.
While Plaintiff fully performed its obligations under the Agreement, Defendant
has materially breached the Agreement by failing to pay Plaintiff according to the tenns of the
Agreement.
17.
As the natural, probable, and foreseeable result of the Defendant's material breach
of the Agreement, Plaintiff has suffered, and continues to suffer, damages that exceed the
Court's minimum jurisdictional limits. The amount of these damages equals the aggregate of
payments due under the Agreement.
18.
Plaintiff asks the Court to award Plaintiff its
damages~
attorneys' fees (pursuant to
the Agreement and TEX. CIV. PRAC. & REM. CODE §38.00 1), prejudgment and postjudgment interest, and costs.
VI.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Court grant the
following relief to Plaintiff:
1.
Judglnent against Defendant for all actual and consequential damages;
2.
Costs of suit, including reasonable and necessary attorneys' fees;
3.
Prejudgment and post-judgment interests at the highest rate allowed by law; and
4.
Afford Plaintiff such other and further relief, at law and in equity, to which
Plaintiff may be justly entitled.
Page 4
431
___ __ __
DATED: __~vn_~~~_.
~_~/~~ O~~________
SCHEEF & STONE, L.L.P.
By:
William J. Garrison
Dallas, Texas 75201
Telephone (214) 706-4200
Telecopier (214) 706-4242
ATTORNEYS FOR PLAINTIFF
The undersigned certifies that a true and correct copy of the foregoing was served on
June 29, 2011, by means of certified mail-RRR and otherwise in accordance with the Texas
Rules of Civil Procedure.
Paula K. Knippa
Suzanne Kaplan
Slack & Davis, LLP
2705 Bee Cave Road, Suite 220
Austin, Texas 78746
William J. Garrison
I
PLAINTIFF S AMENDED PETITION
Page 5
432
;p.r.lr-No. 09-02903
CORP. ("RTS"),
Plaintiff,
v.
Defendant.
§
§
§
§
§
§
§
§
§
§
§
§
,,·-..Or0178
IN THE DISTRICT COURT
14TH JUDICIAL DISTRICT
ORDER GRANTING IN PART
DEFENDANT'S MOTION FOR'SUMMARY ~JUDGMENT
The Court has considered the Motion for Summmy Judgment ("Motion") made by
defendant Martinair Holland, N.V. ("Defendant") against plaintiff Dibon Solutions, Inc. d/b/a
Revenue Technology Services Corp. ("Plaintiff'), including all pleadings and the oral argument
of July 7, 2011 submitted in support and opposition to the Motion.
The Court is of the opinion that Defendant's Motion is meritorious in part. Therefore, the
Court hereby GRANTS Plaintiffs Motion in part and summarily adjudicates that Texas
corporation Revenue Technology Services Corporation, having been forfeited by the Texas
Secretary of State on February 10, 2006, lacks capacity to prosecute claims in this lawsuit.
PRESIDING JUDGE
Date 7
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I
Page 1
14
tfJ..\ /><
No. 09-02903
CORP. ("RTS"),
§
§
§
§
I'P~COO 017 7
§
Plaintiff,
§
v.
§
§
§
§
De~ndant
§
§
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
The Court has considered the Motion/or Partial Summary Judgment ("Motion") made by
plaintiff Dibon Solutions! Inc. d/b/a Revenue Technology Services Corp. (HPlaintiff') against
defendant Martinair Holland, N.V. ("Defendant"), including all pleadings and the oral argument
of July 7, 20 t 1 submitted in support and opposition to the Motion.
The Court is of the opinion that Plaintiffs Motion is meritorious in part. Therefore, the
Court hereby GRANTS Plaintiffs Motion as to Defendant's clainl of fraudulent inducement and
ORDERS that such claim is summarily adjudicated in favor of Plaintiff and hereby dismissed.
PRESIDING JUDGE
Date
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
7(
/
Page 1
15
Filed
11 July 21 P4:05
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE No. 09-02903
DIBON SOLUTIONS, INc. d/b/a REVENUE
TECHNOLOGY SERVICES CORP. ("RTS"),
PLAINTIFF,
V.
DEFENDANT.
§
§
§
§
§
§
§
§
§
§
DEFENDANT MARTINAIR HOLLAND N.V.'s FOURTH AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIMS AS TO PLAINTIFF DIBON SOLUTIONS, INC.
d/b/a REVENUE TECHNOLOGY SERVICES CORP.'s ("RTS") AMENDED PETITION
To the Honorable Judge Moye:
Defendant Martinair Holland N.V. ("Martinair") files this Fourth Amended Original
Answer, Affirmative Defenses and Counterclaims in response to the Amended Petition filed on
June 29, 2011 by Plaintiff Dibon Solutions, Inc. d/b/a as Revenue Technology Services Corp.
("Dibon") and assetis the following denials, affirmative defenses and counterclaims.
I.
1.
FACTUALSUMMARY
On or about September through November of 2007, an entity representing itself to be
Revenue Technology Services Corp. ("RTS"), a corporation organized under the laws of Texas,
tnade numerous representations to Martinair, a regional airline based in Holland, about RTS' s
considerable experience and expertise in profit optimization and revenue management within the
travel indus tty. RTS emphasized its purported twenty-plus years of revenue management and
profit optimization experience in the travel industry and the airline industry, in particular. RTS
218
specifically touted its ability to steer flight bookings based on both yield l and load2 to maximize
revenue, using its proprietary software. Instead of simply maximizing load-or capacity sold per
flight-as other such software did, RTS promised Martinair that its advanced forecasting and
optimization math engines would automatically maximize Martinair's revenue and profitability
by selling the right space to the right customers at the right time and at the right price. These
unique, sophisticated features of its software, RTS claimed, had made it an industry leader on the
cutting edge of profit optimization.
2.
Based upon these representations, Martinair entered into the RTS Master Subscription
Service Agreement ("Agreelnent") on Novetnber 29, 2007, with the party representing itself to
be Texas corporation RTS, which had been involved in profit optimization and revenue
management in the travel industry for over twenty years. In the Agreement, which was drafted
by RTS, RTS again affirmed its identity as being "Revenue Technology Services Corporation ...
a duly registered Texas Corporation in the United States of America."
3.
Unbeknownst to Martinair, at the time that it entered into the Agreement with RTS on
November 29, 2007, RTS had not only forfeited its corporate existence almost two years earlier
for nonpayment of taxes and insufficient assets to pay its tax liabilities, but was prohibited by
Texas law from doing any further business in Texas and, thus, entering into the Agreement itself.
4.
Under the Agreement, RTS was required provide profit optimization software and
services to Martinair. RTS represented that it would tailor its software to Martinair's particular
needs and to provide training to Martinair on how to use the software to maximize Martinair's
revenue.
After an initial implementation period, a 60-month subscription period was to
Revenue per passenger.
2
Number of seats filled (capacity).
DEFENDANT MARTINAIR'S FOURTH AMENDED ORIGINAL ANSWER,
REVENUE TECHNOLOGY SERVICES CORP.' S AMENDED PETITION
d/b/a
PAGE
2 of 15
219
comlnence, which required RTS to provide Martinair with functional revenue Inanagement and
profit optilnization software that would enable Martinair to optimize its flight planning and
thereby maximize its revenue.
5.
The implementation period lasted from November 2007 through June 2008, months
longer than originally planned.
Throughout the implementation period Martinair raised
numerous concerns about the functionality of the software and provided the entity that it thought
was RTS with evidence of substantial problems with RTS' s software system.
6.
In June 2008, RTS had still not delivered a functioning version of its software that would
enable Martinair to nlanage all of its departures and routes.
However, based upon
representations by RTS that it could and would deliver profit optimization software that would
function as promised, Martinair began to pay monthly subscription fees in excess of $17,000 per
nlonth to the entity it believed was RTS.
7.
For months, Martinair tried unsuccessfully to manage its flights through use of the
software provided under the Agreement. Martinair encountered numerous significant problems
with said software, which continued to be incapable of performing the functions that RTS had
promised the software could perform. Martinair continued to provide the entity that it believed
was RTS with written notice and evidence of material problems with the software for eight
tnonths after Martinair had begun paying thousands of dollars per month to said entity. Martinair
repeatedly gave RTS an opportunity to cure these material defects in its software.
8.
In addition to the money that Martinair paid to RTS as "subscription fees" for the
software, Martinair also expended substantial financial resources for training and troubleshooting
by RTS' s personnel and literally hundreds of its own man hours working with RTS to try to get
the software to operate as promised. In the meantime, RTS continued to assure Martinair that it
AFFIRMATIVE DEFENSES AND COUNTERCLAIMS AS TO PLAINTIFF DillON SOLUTIONS, INC.
d/b/a
PAGE
3 of 15
220
would fix the problems and provide Martinair with profit optimization software that would
enable Martinair to maximize its revenues as had been promised.
9.
Fourteen months after entering into the Agreement, it became clear to Martinair that RTS
had not only failed to perform its obligations under the Agreement, but that such breach was
incurable because the software provided under the Agreement was not capable of performing as
promised prior to the Agreement and during the software implementation period. As a result,
Martinair terminated the Agreement in early February of2009.
10.
On March 11, 2009, RTS brought suit against Martinair for terminating the Agreement
"without cause," seeking the sum of $ 1,135, 920 as damages. In its Original Petition-and for
the next 2 Y4 years in its lawsuit-Plaintiff identified itself as "Revenue Technology Services
Corp .... a corporation organized under the laws of the State of Texas."
11.
Moreover, throughout the lawsuit and its multiple Rule 194 disclosures over the next 2 Y4
years, RTS continued to represent to Martinair that the correct name of the plaintiff in the lawsuit
was "Revenue Technology Services Corp.,,3
12.
On June 14, 2011, Martinair filed a Illotion for summary judglnent as to RTS's breach of
contract claim, alleging and establishing by uncontroverted documentary evidence that Texas
corporation Revenue Technology Services Corp. had forfeited its corporate existence on
February 10, 2006. The legal effect of this act was twofold: frrst, RTS was prohibited by Texas
law from doing business in Texas following such forfeiture and thus entering into the Agreement
with Martinair on November 29,2007; and, second, RTS was barred as a matter of Texas law
On July 18, 2011, "RTS" finally amended its disclosures to state that the actual identity of the plaintiff was
"Dibon Solutions, Inc. d/b/a Revenue Technology Services Corporation," a California corporation.
DEFENDANT MARTINAIR' S FOURTH AMENDED ORIGINAL ANSWER,
AFFIRMATIVE DEFENSES AND COUNTERCLAIMS AS TO PLAINTIFF DillON SOLUTIONS, INC.
REVENUE TECHNOLOGY SERVICES CORP. 's AMENDED PETITION
d/b/a
PAGE
4 of IS
221
from bringing suit on the Agreement because it failed to do so within three years from the date of
its forfeiture.
13.
On June 29, 2011, California corporation Dibon Solutions, Inc. ("Dibon"), which had
never been disclosed as a party or even a person with knowledge of relevant facts during the 2 Y4
years that this lawsuit was being prosecuted, filed an Amended Petition.
Dibon filed the
Atnended Petition thirty days past the deadline for amending pleadings set forth in the governing
level 3 scheduling order and without leave of Court as required by the Texas Rules of Civil
Procedure. In that Amended Petition, Dibon asserted that it was the hue Plaintiff in this lawsuit.
14.
Dibon, which heretofore has represented that RTS is its wholly-owned subsidiary, insists
that this is proper because it was the hue owner of the software at issue in the Agreement and it
was "doing business as" RTS at the time the Agreement was entered into with Martinair on
November 29,2007, and was, therefore, a party to the Agreement entitled to sue on the same.
II. GENERAL DENIAL
Martinair incorporates by reference herein all allegations and facts set forth in paragraphs
1-14 above and, pursuant to Rule 92 of the Texas Rules of Civil Procedure, makes the following
general denial:
15.
Martinair generally denies each and every allegation set forth in Dibon Solutions, Inc.
d/b/a Revenue Technology Services Corp.'s Amended Petition and demands strict proof thereon
by a preponderance of the evidence.
III. SPECIFIC DENIALS
specific denials:
DEFENDANT MARTINAIR' S FOURTH AMENDED ORIGINAL ANSWER,
d/b/a
PAGE
5 of15
222
16.
Martinair specifically denies that it contracted with Dibon Solutions, Inc. d/b/a Revenue
Technology Services Corporation in the Agreement upon which said entity purports to sue it.
17.
Martinair specifically denies that either RTS or Dibon Solutions, Inc. d/b/a Revenue
Technology Services Corporation performed its obligations under the Agreement upon which
either of said entities is suing.
IV. VERIFIED PLEAS
verified pleas:
18.
Dibon does not have legal capacity to sue Martinair on the Agreement.
19.
Dibon is not entitled to recover on the Agreement in the capacity in which it sues.
20.
There is a defect of parties in that Texas corporation RTS is a necessary party for this
lawsuit to proceed.
21.
Dibon was not doing business under the assumed name or trade name of "Revenue
Technology Services Corp." at the time the Agreement was entered into or when this lawsuit was
filed, as it has alleged.
V.
AFFIRMATIVE DEFENSES
1-21 above and, pursuant to Rule 94 of the Texas Rules of Civil Procedure, asserts the following
affirmative defenses:
22.
Martinair denies that it is liable to Dibon on the Agreement because Dibon fraudulently
induced Martinair to enter into the Agreement.
AFFIRMATIVE DEFENSES AND COUNTERCLAIMS AS TO PLAINTIFF DmoN SOLUTIONS, INC.
d/b/a
PAGE
6 of15
223
23.
Martinair denies that it is liable to Dibon because Martinair was mistaken about Dibon's
ability to provide profit optimization software that functioned as promised. Martinair's mistake
about Dibon's ability goes to the very heart of the Agreelnent and occurred despite Martinair's
due diligence and care. Dibon will not be prejudiced except for the loss of the benefit of the
bargain to which it was not entitled.
24.
Martinair denies that it is liable to Dibon because both parties were mistaken about
Dibon's ability to provide profit optimization software that functioned as promised. The mistake
as to Dibon's ability goes to the very heart of the Agreelnent and Martinair did not assume the
risk that Dibon would be unable to provide profit optimization software that functioned as
promised.
25.
Martinair denies that it is liable to Dibon because the Agreement was impossible to
perform from the outset because Dibon lacked the expertise and experience to provide profit
optimization software for the travel industry, the airline industry and airlines such as Martinair in
particular that functioned as promised, and Martinair was unaware of such facts.
26.
Martinair denies that it is liable to Dibon because the Agreement became impossible to
perfonn when Dibon failed after numerous attempts to·:fix material and substantial problems with
its profit optimization software, a supervening circumstance that Martinair could not have
anticipated when the Agreement was executed.
27.
Martinair denies that it is liable to Dibon because Dibon's material breach of the
Agreement discharged Martinair's obligations and excused it from further performance of the
same under the Agreement.
28.
Dibon is barred by law from suing on the Agreement made the basis of this lawsuit.
d/b/a
PAGE
7 of 15
224
29.
Dibon is estopped from seeking to enforce the Agreement or asserting breach of the
Agreement against Martinair.
VI.
COUNTERCLAIMS
counterclaims against Dibon:
Breach of Contract:
30.
If Dibon is deemed to actually be Plaintiff in this case, Dibon is liable to Martinair
because Dibon breached the Agreement by failing to perform a material obligation.
31.
Dibon's breach was tnaterial because Dibon did not substantially perform a material
obligation under the Agreement.
32.
Dibon's breach deprived Martinair of the benefits it reasonably anticipated from Dibon's
full perfolmance and caused Martinair's injury.
33.
Martinair's injury was a natural, probable, and foreseeable consequence of Dibon's
breach.
Fraudulent Inducement:
34.
Dibon represented to Martinair that it was Texas corporation Revenue Technology
Services Corporation (or Corp.), which had been in the travel industry profit optimization
business for well over twenty years, and could therefore plausibly provide functional revenue
Inanagement and profit optimization software for an airline company that would steer based on
yield and load to maximize revenue.
35.
Dibon' s representations were material because they went to the heart of the Agreement.
36.
The representations were false.
d/b/a
PAGE
8 of IS
225
37.
When Dibon made these representations to Matiinair, Dibon knew they were false, or
made them rec1dessly, as a positive assertion, without knowledge of their truth.
38.
Dibon made the representations intending for Martinair to rely on them.
39.
Martinair actually relied on Dibon's representations and entered the Agreement as a
result of the representations.
40.
Matiinair's reliance on Dibon's representations was reasonable and, therefore, justified.
41.
Martinair was injured as a result of its actual and justifiable reliance upon Dibon's
representations.
Fraudulent Misrepresentation:
42.
Dibon made representations to Martinair about its identity, expertise, experience as well
as the functionality of the software provided under the Agreement.
43.
Dibon 's representations were material and false.
44.
When Dibon made these representations to Martinair, Dibon knew they were false, or
made them recklessly, as a positive assertion, without knowledge of their truth.
45.
Dibon made the representations intending for Martinair to rely on them.
46.
Martinair did rely on Dibon's representations and such reliance was reasonable and
justified.
47.
Matiinair's reliance upon Dibon's representations caused Matiinair's injury.
Fraudulent Nondisclosure:
48.
Dibon concealed from or failed to disclose certain material facts to Martinair, such as the
fact that Texas corporation Revenue Technology Services Corporation-the entity with whom
Martinair believed it was contracting when it entered into the Agreement and during the course
of the Agreement-had forfeited its existence almost two years prior to the execution of the
d/b/a
PAGE
9 of 15
226
Agreement; the fact that Martinair was not contracting with Texas corporation Revenue
Technology Services Corporation when it entered into the Agreement, and the fact that
Martinair, unbeknownst to it, was purportedly entering into an Agreement with Dibon, a
company about whom Martinair knew nothing.
49.
Dibon had a duty to disclose such facts to Martinair.
50.
These facts were material to Martinair's decision to enter into the Agreelnent upon which
it is being sued.
51.
Dibon knew that Martinair was ignorant of these facts and that Martinair did not have an
equal opportunity to discover such facts.
52.
Dibon was deliberately silent on and failed to disclose these facts when it had a duty to
disclose such facts.
53.
By failing to disclose these facts, Dibon intended to induce Martinair to enter into the
Agreement.
54.
Martinair relied on Dibon's nondisclosure.
55.
Martinair was injured as a result of entering into said Agreement without knowledge of
these undisclosed facts.
Request for Declaratory Judgment
56.
Dibon asserts that it is entitled to substitute in as Plaintiff in this lawsuit because it was
"doing business as" RTS at the time that the Agreement was entered into and was entitled to do
so because RTS had forfeited its corporate existence including its trade name. Dibon, therefore,
contends that it was the actual party to the Agreement entitled to bring this breach of contract
action against Martinair. Dibon makes this claim although there is absolutely no evidence that,
at the thne of the Agreelnent, it was holding itself out as "RTS" or "Revenue Technology
AFFIRMA TIVE DEFENSES AND COUNTERCLAIMS AS TO PLAINTIFF DIBON SOLUTIONS, INC.
d/b/a
PAGE
10 of 15
227
Services Corp." or "Revenue Technology Services Corporation" and in spite of the fact that, by
Dibon's own admissions, Dibon considered RTS to be an ongoing, separate corporation at the
thne that the Agreelnent was entered into and that it was RTS's own CEO, Loren Alexandernot anyone at Dibon-who signed the Agreement on behalf ofRTS.
57.
Martinair seeks a declaratory judgment from this Court that Dibon is not entitled to
substitute in as Plaintiff in this lawsuit as it cannot establish that it was "doing business as" RTS,
Revenue Technology Services Corp. or Revenue Technology Services Corporation at the time
that the Agreement was entered into and, therefore, was actually a party to the Agreement upon
which this lawsuit is based.
VII. SPECIAL EXCEPTIONS
special exceptions as to the Amended Petition filed by Dibon Solutions, Inc. d/b/a Revenue
Technology Services Corporation and asks the Court to order Dibon Solutions, Inc. d/b/a
Revenue Technology Services Corporation to replead and cure its pleading defects as follows:
58.
Martinair specially excepts to the Amended Petition filed by California corporation
Dibon Solutions, Inc. d/b/a Revenue Technology Services Corporation ("Dibon") because the
Amended Petition fails to state a cause of action. Martinair specially excepts to paragraphs 15,
16, and 17 because Dibon did not plead all elements of its cause of action. Specifically, the
pleading for breach of contract did not include the elements requiring that Dibon be a proper
party to sue on the contract at issue in this lawsuit. The elements of a breach of contract are: (1)
the existence of a valid, enforceable contract; (2) the plaintiff is a proper party to sue for breach
of contract; (3) the plaintiff performed, tendered performance of or was excused from performing
AFFIRMATNE DEFENSES AND COUNTERCLAIMS AS TO PLAINTIFF DIBON SOLUTIONS, INC.
d/b/a
PAGE
11 of15
228
its contractual obligations; (4) the defendant breached the contract; and (5) the defendant's
breach caused the plaintiff injury. Hackberry Creek Country Club, Inc. v. Hackberry Creek
Home Owners Ass 'n, 205 S.W.3d 46, 55 (Tex. App.-Dallas 2006, pet. denied); Simien v.
Unifund CCR Partners, 321 S.W.3d 235, 247 (Tex. App.-Houston [1st Dist.] 2010, no pet.).
Dibon asserts that it entered into a contract with Martinair effective November 29, 2007. The
contract, however, identifies the party to the contract as "Revenue Technology Services
Corporation ... duly registered Texas corporation," and fails to mention Dibon at all. Parties to a
contract are the signatories to the contract or those who have otherwise expressly indicated their
consent to be bound by the contractual promises.
See, e.g., Willis v. Donnelly, 199 S.W.3d 262,
271 (Tex. 2006) (concluding that because business owner did not sign the contract, he was not
individually a party to the contract his company entered into); ANCO Ins. Servs. v. Romero, 27
S.W.3d 1, 5-6 (Tex. App.-San Antonio 2000, pet. denied) (holding that because company's
name was struck from agreement before execution, company would not be deemed a party to the
contract). Under certain circumstances, a third-party beneficiary who is not a signatory to the
contract may be authorized to sue on the contract if: (1) the contracting parties intended to secure
a benefit to the third party and (2) the contracting parties entered into the contract directly for the
third patty's benefit. Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002); MCI Telecomms. Corp.
v. Texas Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999). A third party beneficiary, however,
can only sue for breach of contract if the contract clearly and fully expresses the intent to confer
a direct benefit on the third party. South Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex.
2007). Dibon is not a proper party to the contract upon which it seeks to sue because it was not a
signatory of the contract nor was it specifically identified by the signatories to the contract as a
third party beneficiary of said contract as the law requires.
DEFENDANT MARTINAIR'S FOURTH AMENDED ORlGINAL ANSWER,
d/b/a
PAGE
12 of15
229
59.
Martinair specially excepts to paragraphs 14-18 of the Amended Petition filed by Dibon
because Dibon's suit is precluded by law. Dibon seeks to bring suit on a contract entered into by
its wholly-owned subsidiaty, Texas corporation Revenue Technology Services Corp. ("RTS"),
which forfeited its existence almost two years prior to entering into the contract upon which
Dibon is suing and was, therefore, barred by Texas law from entering into said contract. TEX.
Bus. ORG. CODE § 11.356(b). Fur1her, Dibon's wholly-owned subsidiary, Texas corporation
RTS, failed to bring suit within three years of the forfeiture of its corporate existence and is
therefore precluded from bring suit on the contract it executed with Martinair. TEX. Bus. ORG.
CODE § 11.356(a)(I). Dibon asserts that, as sole shareholder, it is entitled to bring suit in a
representative capacity on Texas corporation RTS's behalf. Dibon, however, cannot avoid the
legal consequences of the fact that R TS' s execution of the Agreement was unlawful and that
Dibon is subject to the same limitations period set forth in § 11.356(a) as is RTS.
VIII. ATTORNEYS' FEES
60.
Martinair is entitled to recover reasonable and necessary attorneys' fees on its
counterclaim for breach of contract under Texas Civil Practice & Remedies Code § 38.001, et
seq. On February 6,2009, Martinair presented its claim for damages to the entity that it believed
to be RTS. On February 11, 2009, counsel for Martinair again presented its claim for damages to
the entity that it believed to be RTS. That entity declined to tender the amount owed within 30
days of the date that Martinair's claim was presented.
61.
Further, Martinair is entitled to recover reasonable and necessary attorney's fees pursuant
to § 37.009 of the Texas Civil Practice & Remedies Code to determine the substantive rights of
the parties to this lawsuit and whether Dibon is a proper plaintiff in this lawsuit and/or a party
entitled to and capable of suing on the Agreement made the basis of this lawsuit.
d/b/a
PAGE
13 of15
230
IX.
62.
DAMAGES
For these reasons Martinair asks that the Court award a judgment against Dibon for the
following:
a) Actual damages in excess of $2,700,000;
b) Exemplary damages to be determined by a jury;
c) Prejudgment and postjudgment interest;
d) Court costs;
e) Declaratory judgment;
f) Attorneys' fees; and
g) All other relief to which Martinair may show itself justly entitled.
X.
63.
JURY DEMAND
Martinair hereby respectfully requests and makes this its formal demand for jury and
respectfully requests a jury trial in this case of action on all issues.
XI.
PRAYER
For these reasons, Martinair asks that Dibon take nothing in this case, that all costs be
assessed against Dibon, that Martinair be awarded all relief to which it shows itself to be justly
entitled on its counterclaims, and that Martinair be awarded its reasonable and necessary
attorney's fees incurred in this action as set forth above.
d/b/a
PAGE
14 of 15
231
Respectfully submitted this 21 st day of July, 2011.
SLACK & DAVIS, L.L.P.
Austin, Texas 78746
(512) 795-8686 (telephone)
(512) 795-8787 (facsimile)
/s/ Paula Knippa
PAULAIC. KNIPPA
State Bar No. 24049103
pknippa@slaackdavis.cOln
SUZANNE KAPLAN
State Bar No. 24067699
skaplan@slackdavis.coln
ATTORNEYS FOR DEFENDANT
I, the undersigned, hereby certify that a true copy of DEFENDANT MARTINAIR HOLLAND
N.V.'s
FOURTH
AMENDED
ORIGINAL ANSWER,
AFFIRMATIVE
DEFENSES
AND
COUNTERCLAIMS AS TO PLAINTIFF DIBON SOLUTIONS, INC. d/b/a REVENUE TECHNOLOGY
SERVICES CORP. was served via certified mail- retulTI receipt requested, electronic service, and
electronic mail on this the 21 st day of July, 2011, on:
Bill Garrison
SCHEEF & STONE, LLP
500 North Akard, Suite 2700
Dallas, Texas 75201
214.706.4200
214.706.4242 (fax)
Attorney for PLAINTIFF
/s/ Paula Knippa
Paula IC. Knippa
AFFIRMATNE DEFENSES AND COUNTERCLAIMS AS TO PLAINTIFF DIBON SOLUTIONS, INC.
d/b/a
PAGE
15 of 15
232
CAUSE No.
DIBON SOLUTIONS, INC. d/b/a REVENUE
TECHNOLOGY SERVICES CORP.,
PLAINTIFF,
v.
MARTlNAIR HOLLAND N, V"
DEFENDANT,
09-02903
§
§
§
§
§
§
§
§
§
§
§
14TII JUDICIAL DISTRICT
ORDER GRANTING DEFENDANT MARTINAIR HOLLAND N. V. 's
SECOND AMENDED MOTION TO STRIKE DIBON SOLUTIONS, INC. D/slA REVENUE
TECHNOLOGY SERVICES CORP.'sAMENDED PETITION
WHEREFORE, the Court, after considering Defendant Martinair Holland, N.V.'s Second
Amended Motion to Strike Dibon Solutions, Inc. d/b/a Revenue Technology Services Corp.'5
Amended Petition, including arguments and evidence from counsel, finds that said Motion
should be GRANTED.
IT IS THEREFORE ORDERED that Plaintiff Dibon Solutions, Inc. d/b/a Revenue
Technology Services Corp.'s Amended Petition shall be stricken.
Signed this
~i
day of July, 201 t by,
Judge Eric Moye ,
362
•
No. 09-02903
CORPORATION ("RTS"),
Plaintiff,
v.
Defendant.
§
§
§
§
§
§
§
§
§
§
§
14'1'11 JUDICIA
PLAINTIFF'S MOTION THAT THE COURT ACCEPT
PLAINTIFF'S SECOND AMENDED PETITION
Plaintiff Dibon Solutions, Inc. d/b/a
R~venue
Technology Services Corporation
("Plaintiff') respectfully files this At/olion/or Leave 10 File Second Amended Petition (,'Motion")
against defendant Martinair Holland, N.V. ("Defendant").
The Court scheduling order dated March 7, 2011 ("Scheduling Order") imposed certain
pre-trial deadlines leading to a trial date of August 2, 2011. The Scheduling Order further
provides the Parties may modify the stated deadlines by agreement amongst themselves.
On July 6, 2011, in response to the Parties' agreed motion, the Court granted a
continuance of the trial date to November 1, 2011. Shortly thereafter, the Parties agreed in
writing to set new deadlines leading up to the trial date. The Parties then entered into a Rule 11
agreelllent confirming that agreelnent.
Since then, Defendant has filed several pleadings in the case and has asserted at least one
new claim against Plaintiff. However, as indicated in the certificate of conference, Defendant is
unwilling to submit a proposed amended scheduling order tor the COUlt's consideration.
PLAINTIFF'S MOTION THAT COURT ACCEPT
Page 1
456
•
•
In light of these circumstances, Plaintiff respectfully requests the Court accept Plaintiff's
Second Amended Petition, which is filed herewith as Attachment A.
DATED:
:7(//7 ,. BI ZC' J
WilliatTI J. Garrison
Dallas, Texas 75201
Telephone (214) 706-4200
•
•
CERTIFICATE OF CONFERENCE
The Parties agreed to nlodify the pre-trial deadlines in light of the new trial date.
contacted Defendant's counsel and requested that Defendant agree to submit a proposed Level 3
scheduling order for the Court's consideration. Defendant's counsel was not agreeable to doing
so, and otherwise opposes Plaintiff s filing of an anlended petition.
¢'~/ 4-;~William J. Garrison
The undersigned certifies that a true and COliect copy of the foregoing was served on July
28, 2011, by nleans of certified mail and otherwise in accordance with the Texas Rules of Civil
Procedure.
Paula K. Knippa
Suzanne Kaplan
Slack & Davis, LLP
Austin~ Texas 78746
William fGarrison
Pag~~
•
•
459
•
•
No. 09-02903
§
DIBON SOLUTIONS, INC. d/b/a and a/kla
"REVENUE TECHNOLOGY SERVICES
CORPORATION" and "RTS" and as
representative of REVENUE
TECHNOLOGY SERVICES
CORPORATION (Texas corpora.tion),
Plaintiff,
v.
Defcndnnt.
§
§
§
§
§
§
§
§
§
§
§
§
§
§
TO THE HONORABLE JUDGE OF THE 14th DISTRICT COURT:
Plaintiff Dibon Solutions, Inc. d/b/a "Revenue Technology Services Corporation" and
"RTS" and as representative of Revenue Technology Services Corporation ("Plaintiff')
respectfully files this Second Amended Petition ("Amended Petition'!) complaining of Martinair
Holland N.V. (herein ·'Defendanf'). In support of this Atnended Petition, Plaintiff pleads the
following:
I.
1.
PARTIES
Plaintiff is a corporation organized under the laws of the State of California.
Plaintiff conducts business through an office at 2009 Chennault Drive, Suite 100, Carrollton,
Texas 75006, in Dallas County, Texas. Plaintiff has done business, including with Defendant, as
detailed herein, in the assumed names of "Revenue Technology Services Corporation" and
Page 1
460
"RTS". These names are additionally trade names that Plaintiff purchased and received in
transfer on or about October 4, 2005.
2.
Plaintiff additionally owns all of the stock of Revenue Technology Services
Corp., a Texas corporation (HRTS-TX"), from whom Plaintiff purchased various assets including
the trade nanles tnentioned above and the software that are at issue in this case. Plaintiff is
entitled to sue Defendant in a representative capacity because, during the time period at issue,
RTS-TX was a forfeited entity according to the Texas Secretary of State.
3.
Defendant is an entity organized under laws of The Netherlands, and has its
principal place of business at 1118ZG Schipol Airport, Amsterdam, The Netherlands.
II.
4.
DISCOVERY CONTROL PLAN
Pursuant to Texas Rule of Civil Procedure 190> Plaintiff intends that discovery be
conducted in this lawsuit under Level 3 pursuant to an existing scheduling order as nl0dified by
the agreement of the Parties.
III.
5.
.JURISDICTION AND VENUE
This Court has subject nlatter jurisdiction because the nlatter in controversy falls
within this Court's general jurisdiction and the amount in controversy exceeds the Court's
minimum jurisdictional lilUitS. This Court has personal jurisdiction over Defendant because,
among other reasons, Defendant has submitted to the personal jurisdiction of the Court.
6.
Venue is proper in Dallas County, Texas, because, atnong other reasons, the
Parties have submitted to the venue of the Court.
Page 2
461
•
IV.
7.
•
FACTUAL BACKGROUND
Plaintiff and Defendant negotiated and, effective Noven1ber 29, 2007, entered into
a contract, the Alaster Subscription Service Agreement (herein "Agreement"), whereby Plaintiff
would provide professional services and certain profit optilnization software (herein "Software")
to Defendant. Although the Agreement references ';Revenue Technology.Services Corporation
("RTS"), a duly registered Texas corporation," Plaintiff authorized, entered into, adopted and
perfornled the Agreement.
8.
From at least 2005 to the present, Plaintiff has owned the Software provided to
Defendant pursuant to the Agreement.
Personnel employed by Plaintiff implemented the
Software for Defendant's utilization.
9.
After Plaintiff inlplemented the Software for the benefit of Defendant, a 60-month
subscription term c0l11menced during which period Defendant was required to pay a nl0nthly fee
to Plaintiff. This 60-month term began on June 16, 2008, after Defendant confirmed in writing
that the Software was in place and operating to its satisfaction.
10.
After having paid for only 6 months of the required payments, and despite having
contractually promised not to terminate the Agreement prior to the expiration of 36 months (and
then only if Defendant had utilized the software at a specified level with inadequate results as
measured by agreed criteria), Defendant notified Plaintiff that it was refusing to further perform
the Parties' Agreement.
11.
Per the terms of the agreement, there is no ternlination "without cause" and any
termination within the initial Subscription Period of 60 months causes the balance of the contract
slim to become due and owing.
Page 3
462
12.
Defendant has failed to pay Plaintiff for the services provided and improperly
terminated the Agreenlent. Defendant has thus breached the Agreement.
13.
As a result of Defendant's breach, Defendant is responsible for paying the
remaining monies owed under the Agreement, prejudgment and post-judglnent interest, and all
reasonable and necessary attorneys' fees.
V.
14.
. COUNT ONE - BREACH OF CONTRACT
Pursuant to Rule 58 of the Texas Rules of Civil Procedure, Plaintiff realleges and
incorporates by reference herein all a1legations set f011h in paragraphs 1 through 13 above.
15.
All conditions precedent to the bringing of the causes of action in this Petition
have been performed, excused, waived, or otherwise satisfied.
16.
Plaintiff entered into a valid and enforceable Agreement with Defendant. While
Plaintiff fully performed its obligations under the Agreement, Defendant materially breached the
Agreement by failing to pay Plaintiff according to the terms of the Agreement.
17.
As the natural, probable, and foreseeable result of the Defendant's material breach
of the Agreement, Plaintiff has suffered, and continues to suffer, danlages that exceed the
Court's minimum jurisdictional limits. The amount of these damages equals the aggregate of
payments due under the Agreement.
18.
Plaintiff asks the Court to award Plaintiff its damages, attorneys' fees (pursuant to
the Agreenlent and TEX. elV. PRAC. & REM. CODE §38.001), prejudgment and postjudgment interest, and costs.
Page 4
463
•
•
VI.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Court grant the
following relief to Plaintiff:
1.
Judglnent against Defendant for all actual and consequential damages;
2.
Costs of suit, including reasonable and necessary attorneys' fees;
3.
Prejudgtnent and post-judgment interests at the highest rate allowed by law; and
4.
Afford Plaintiff sllch other and further relief, at law and in equity, to which
Plaintiff may be justly entitled.
DATED:
'7(//7
2(/1 2,.0 1/
By:
~g ~rP·
.. :
Willian1 J. Garrison
Dallas, Texas 75201
Telephone (214) 706-4200
Page 5
464
•
•
The undersigned certifies that a true and correct copy of the foregoing was served on July
28, 2011, by means of certified mail-RRR and otherwise in accordance with the Texas Rules of
Civil Procedure.
Paula K. Knippa
Suzanne Kaplan
Slack & Davis, LLP
Austin, Texas 78746
WillialU J. Garrison
Page 6
465
CAUSE NO. 09-02903
REVENUE TECHNOLOGY SERVICES CORP.,
PLAINTIFF,
V.
DEFENDANT.
§
§
§
§
§
§
§
§
§
§
§
ORDER GRANTING NOTICE OF NONSUIT
WHEREFORE, the Court, after consideration of Defendant and Counter-Plaintiff
Martinair Holland N.V.'s ("Martin air") Notice of Nonsuit, and the Court having considered the
same, is of the opinion that such case should be dismissed without prejudice pursuant to
Martinair's request for nonsuit.
It is, therefore, ORDERED, that all of Martinair's live claims against Plaintiff Revenue
Technology Services Corp. are hereby dismissed without prejudice, with all costs of court to be
,
pl"'lIo.r<~
assessed against the party hy whom incurred.
SIGNED this 2
~
day of October 2011.
j
JUDGE ERIC MOYE
7
402
•
••
r~_
\
~la.A-
No. 09-02903
1"~1.c0 0343
§
,§
CORPORATION
•
l
,
Plaintiff and Counterdefendant,
v.
Defendant and Counter..
I
IN THE D]STRlCT COURT
§
§
§
§
§
§
§
§
§
§
14TH JUDICIAL DISTRlCT
Claimant.
FINAL JUDGMENT
On June '29, 2011, California corporation Dibon Solutions, Inc. tiled an "Amended
Petition" purporting to identify itself as "Dibon Solutions, Inc. d/b/a Revenue Technology
,
Services Corporation" and the proper plaintiff
I
in this case.
On, July 15, 20J 1, the Court granted Defendant Martinair Holland N.V.'s motion for
summary judgment and ruled that Plaintiff
T~xas
corporation Revenue Technology Services
Corp., having forfeited its corporate existence on February 10, 2006, and having failed to
reinstate said existence at any point in time the~eafter, lacked capacity to prosecute its breach of
contract claim ag~inst Defendant Martinair Holland N.V. in this case.
On July 27, 201 I, the Court granted Defendant Martinair Holland N.V.'s motion to strike
Dibon Solutions, Inc.'s "Amended Petition" based upon its findings that Dibon Solutions, Inc.
I Plaintiffs note: It Is Plaintiffs position that jt is correctly described as Dibon Solutions, Inc. d/b/a "Revenue
TechnoJogy Service's Corporation:' Howeyer. th~ Court has i}Te,YiQusl)' ruled thal Dibon Solutions. Jnc, is
it third-party whose Intervention in the laWSuit was not compliant with the CQurrS scbeduUD~ Qrder.
Consequently, Plaintiff submits to the above captio!? in accordance with the Court's ruling but Without
prejudice to Plaintiffs rights on appeal.
FINAL JUDGMENT
Page 1
406
•
•
was a new party to the case and..s in filing
t~e
"Amended Petition" on June 29, 20] I, Dibon
Solutions, Inc. violated the Court's then-existing scheduling order.
On October 18, 2011, Defendant Marbnair Holland N.V. made a voluntary non-suit,
without prejudice, of all of its remaining c0l!-nter..c1aims against Plaintiff Texas corporation
Revenue Technology Services Corp. in this cas~ pursuant to Texas Rule of Civil Procedure 162.
After this
volunt~ry
non-suit, no other Jive claims by Defendant Martinair Holland N.V., if any,
against any entit~ whatsoever remain in this cas~,
As a result of the above-described developments 'and other orders granted by the Court
I
heretofore, the
C~lUrt
hereby RENDERS final judgment that Plaintiff Texas corporation Revenue
Technology Serv.~ces Corp. take nothing against~Defendant Martinair Holland N.V.
The Court further ORDERS that P1aintiff Texas corporation Revenue Technology
Services Corp. and Defendant Martinair Holland N.V. are each to bear their own attorney's fees
~
and costs incurred in this case.
This Fiqal Judgment is final and dispqses of all live remaining claims and all parties
before the Court in
, this case.
Signed thjs -.:11 day of October 2011.
::;;;SS;
0:
The Hon. Eric V
FlNAL JUDGMENT
-
Page 2
407
Vernon's Texas Rules Annotated Currentness
Texas Rules of Civil Procedure
~"lill Part II. Rules of Practice in District and County Courts
"[hl Section 3. Parties to Suits
~'Rule 28. Suits in Assumed Name
Any partnership, unincorporated association, private corporation, or
- individual doing business under an assumed name may sue or be sued in its
partnership, assumed or common name for the purpose of enforcing for or
against it a substantive right, but on a motion by any party or on the court's
own motion the true name may be substituted.
CREDIT(S)
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by order of July 21, 1970, eff.
Jan. 1, 1971.

DIBON SOLUTIONS, INC. d/b/a

Transcription

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