author: Justice FRANCIS.

text:
    Russell FISH and Dallas NAACP Branch, Appellants v. DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 05-04-00921-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 16, 2005.

      R. Clayton Trotter and Allan E. Parker, San Antonio, for Appellants.
    Eric V. Moye, Vial, Hamilton, Koch & Knox, L.L.P., Mark William Romney, Boswell & Kober, P.C., and Sheri D. Crosby, Dallas, for Appellee.
    Before Justices BRIDGES, FITZGERALD, and FRANCIS.
   OPINION

Opinion by

Justice FRANCIS.

In this open records lawsuit, Russell Fish and Dallas NAACP Branch appeal the trial court’s take-nothing judgment in favor of Dallas Independent School District. Appellants complain of charge error and the legal sufficiency of the evidence to support the jury’s finding against them. We affirm.

On October 8, 1997, Fish requested by letter that DISD provide to him the Iowa Test of Basic Skills (ITBS) results for all Dallas schoolchildren for an eleven-year-period, from 1986-87 to 1996-97. Fish requested the following nineteen categories of information: student number, student sex, student age, student ethnicity, special ed flag, LEP flag, test norms, teacher number, campus name, grade, level, form, test date, reading vocabulary grade equivalent, reading comprehension grade equivalent, reading total grade equivalent, mathematics concepts grade equivalent, mathematics problems grade equivalent, and mathematics total grade equivalent. In an effort to maintain the students’ confidentiality, Fish requested that a “unique number be placed in the field for student and teacher name and that the number be consistent from year to year.” Fish further requested that the information be provided on magnetic tape reels and planned to publish the information on the Internet.

Three months later, DISD informed Fish that the data was not available in the form requested, and the cost for the information was estimated at $2040. DISD told Fish it needed a fifty percent deposit to begin work. Appellants did not pay the deposit; instead, they filed suit against DISD, seeking a writ of mandamus to order DISD to produce the documents at either no cost or at reasonable cost. Additionally, they sought an order that DISD violated the Texas Public Information Act by not producing the documents within a reasonable time and sought attorney’s fees.

In its answer, DISD contended that, among other things, it was prohibited from providing the information by the Family Educational Rights and Privacy Act of 1974 (FERPA), see 20 U.S.C.A. § 1232g(b)(l),(2); the requested information contained confidential information exempt from disclosure under the Texas Public Information Act; and the Texas Education Code prohibited the release of personally identifiable information concerning students or teachers.

During a three-day trial, a jury heard conflicting expert testimony on whether the information in the form requested was “easily traceable” such that it would allow students to be identified later by parties outside the district. At the conclusion of the evidence, the jury found that although the information requested was not personally identifiable in the form requested, it was “easily traceable.” The trial court rendered judgment on the verdict in DISD’s favor, stating in its judgment that “as the information in question was easily traceable, it could not be properly divulged to the Plaintiffs.” This appeal followed.

In their first issue, appellants complain that the answers to the two jury questions fatally conflict and the trial court erred in not returning the jury to deliberations to resolve the conflict. This complaint is premised on appellants’ assertion that FERPA’s legal definition of “personally identifiable” encompasses “easily traceable,” meaning that if information is not personally identifiable, it cannot be easily traceable.

The jury was asked, and answered, the following two questions:

QUESTION NO. 1:
Do you find from a preponderance of the evidence that the information requested by Plaintiffs in the form requested at the time is not “personally identifiable information”?
Answer “Yes” or “No.”
12 YES (We find the information is not
“personally identifiable” in the form requested.)
0 NO (We find the information is
“personally identifiable information” in the form requested.)
QUESTION NO. 2:
Do you find from a preponderance of the evidence that the information requested by Plaintiffs in the form requested is not “easily traceable” by parties outside the district so as to identify a student at some later time?
Answer “Yes” or “No.”
1 YES (We find the information is not “easily traceable.”
11 NO (We find the information is “easily traceable.”)

Before the jury was charged, appellants made no complaint to the wording of these questions nor did they seek any definitions with regard to either of the terms “personally identifiable” or “easily traceable,” under FERPA or any other source. During its deliberations, the jury asked for a legal definition of “personally identifiable information,” and the judge responded, without any objection from either side, that it must use “the meaning commonly understood.” Once the jury returned an adverse verdict, however, appellants complained for the first time that FERPA’s legal definition of “personally identifiable” encompassed “easily traceable,” rendering the jury’s answers in fatal conflict. Appellants argue the trial court erred in failing to comply with Texas Rule of Civil Procedure 295 and retiring the jury for further deliberations. We disagree.

Texas Rule of Civil Procedure 295 governs correction of verdicts and provides:

If the purported verdict is defective, the court may direct it to be reformed. If it is incomplete, or not responsive to the questions contained in the court’s charge, or the answers to the questions are in conflict, the court shall in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury with such additional instructions as may be proper, and retire the jury for further deliberations.

Tex.R. Crv. P. 295. By its own terms, then, the rule only applies to defective verdicts, not defective charges. Archer Daniels Midland Co. v. Bohall, 114 S.W.3d 42, 46 (Tex.App.-Eastland 2003, no pet.). Before the rule authorizes further instruction to the jury, the verdict must be incomplete, nonresponsive to the questions contained in the court’s charge, or contain answers which are in conflict. Id. Contrary to appellants’ assertion, the answers contained in this charge do not conflict, fatally or otherwise.

Although appellants argue that the definition of “personally identifiable” encompasses “easily traceable,” such that if information is not personally identifiable, it also is not easily traceable, the jury was given no such definition. Rather, it was instructed to use the common meaning of the words. Using the common meaning of the words, the questions on their face do not inquire about the same fact. The first question asked if the information, in the form requested by appellants, was not “personally identifiable.” The second question asked if the information, in the form requested, was not “easily traceable” by parties outside the district so as to identify a student at some later time. Reviewing the charge as given and the jury’s answers to the two questions, it is clear the jury concluded that the information was not personally identifiable in the form requested at the time, but was “easily traceable” by parties outside the district, meaning that students could be identified at some later time. These answers are not in fatal conflict. We resolve this issue against appellants.

In their second issue, appellants make several arguments with respect to the jury’s finding of “easily traceable.” Specifically, appellants argue that the finding was immaterial and should have been disregarded; the trial court failed to give proper definitions of key legal words, in particular, “personally identifiable information”; and the second question should not have been submitted because it was an inferential rebuttal issue.

Again, all of these arguments are premised on appellants’ assertion that the FER-PA definition of “personally identifiable” encompasses “easily traceable.” As noted previously, however, the charge did not contain any such definition, and appellants neither objected to the absence of the definition nor did they request any definition be given before the charge was read to the jury. In fact, appellants lodged no objections to Question No. 2.

Any complaint to a jury charge is waived unless specifically included in an objection. Tex.R. Civ. P. 274; Tex.R.App. P. 33.1(a)(1); In re B.R.D., 113 S.W.3d 340, 349 (Tex.2003); cert. denied, Dossey v. Tex. Dep’t of Protective & Regulatory Servs., 541 U.S. 945, 124 S.Ct. 1674, 158 L.Ed.2d 371 (2004). A party must make the trial court aware of the complaint, timely and plainly, and obtain a ruling. In re B.R.D., 113 S.W.3d at 349; State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992) (op. on reh’g).

Although appellants did complain after the verdict was returned that “there is an enormous definitional problem with the jury’s verdict,” we cannot conclude this was a timely objection. We will not read into the charge a definition that was never requested before the jury began deliberations and was never considered by the jury. Accordingly, we conclude appellants’ charge complaints are either without merit or are waived. We resolve the second issue against appellants.

In their third issue, appellants assert that the public information was not, as a matter of law, “easily traceable.” We interpret this as a challenge to the legal sufficiency of the evidence to support the jury’s finding to Question No. 2.

A party attempting to overcome an adverse fact finding to an issue on which it had the burden of proof must surmount two hurdles. See Honeycutt v. Billingsley, 992 S.W.2d 570, 577 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (op. on reh’g). First, the reviewing court must examine the record for evidence supporting the finding or failure to find, while ignoring evidence to the contrary. Second, if there is no evidence to support the finding or failure to find, the reviewing court will then examine the entire record to determine whether the contrary proposition is established as a matter of law. Id.

Here, appellee presented two experts, Drs. Randall Schumaker and Robert Mendro, both of whom testified that release of the information would violate the privacy and confidentiality of DISD schoolchildren. Dr. Schumaker, a professor at the University of North Texas who has studied statistical analysis for thirty years, testified that he requested little of the information sought by appellants yet was able to independently identify the children with this “very little information.” Dr. Schumaker made his study “by hand,” not computer, and it took “just a few minutes.” In the courtroom, Dr. Schumaker demonstrated several times for jurors that he could trace a student’s identification with the information requested by appellants using a school directory. After the demonstrations, he testified it was “very easy” to trace personal identification information of children.

Similarly, Dr. Mendro, DISD assistant superintendent for research and evaluation, testified that releasing the information “would allow the identification of test scores.” According to Dr. Mendro, appellants wanted to use individual random numbers to mask the student data; however, he was able to discern identification of individual students despite the masking by random numbers. Dr. Mendro said he matched the pattern of student enrollment from year to year with patterns of enrollment from publicly available student directories and was able to identify students. According to Dr. Mendro, he was able to match 550 of 800 students at Thompson Elementary School in less than one minute. To match the data for the 400,000 students passing through DISD during the eleven-year period would take less than twenty minutes. Dr. Mendro performed his test by computer and said the information was “easily traceable.”

This is some evidence to support the jury’s finding that the information, in the form requested by appellants, was easily traceable by parties outside the district so as to identify a student at some later time. Accordingly, the evidence is legally sufficient to support the jury’s finding. We resolve the third issue against appellants.

In their fourth issue, appellants assert that judgment notwithstanding the verdict should have been granted because (1) the uncontroverted evidence showed that DISD in no way sought to follow procedures, timeliness, or responses to requests mandated by the Texas Public Information Act; (2) the jury found the information was not personally identifiable information and thus not covered by FERPA; (8) public policy is that the Public Information Act should be liberally construed in favor of disclosure. As for the first and third sub-issues, neither is adequately briefed. See Tex.R.App. P. 38.1(h). As for the second sub-issue, we have adequately explained and rejected this complaint. We resolve the fourth issue against appellants.

We affirm the trial court’s judgment.


source: Caselaw Access Project

author: Justice O’NEILL.

license: Public Domain

text:
    Max John COLEMAN, Jr. and Green Foliage and Supply, Inc., Appellants v. Debbie Ann COLEMAN, Independent Executrix of the Estate of Robert Lee Coleman, Deceased, Appellee.
    No. 05-04-00600-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 17, 2005.

      John D. Copeland, Dallas, for Appellants.
    James B. Martin, Dallas, for Appellee.
    Before Justices BRIDGES, O’NEILL, and MAZZANT.
   OPINION

Opinion by

Justice O’NEILL.

This case concerns the disposition of a business partnership between brothers after one of them died. Max Coleman, the surviving partner, appeals the judgment awarding the redemption value of his brother’s partnership interest to his widow, Debbie Coleman. In five issues, Max asserts that (1) as a transferee of his brother’s interest, Debbie is not entitled to receive the redemption value of the partnership interest; (2) the trial court erred in excluding evidence of an alleged oral “buy-sell” agreement whereby life-insurance proceeds would be used to buy out a deceased partner’s interest; (3) the amount of setoff and credits the trial court awarded was not supported by the evidence; (4) the value of Robert’s interest, held by Debbie as a transferee, was not supported by the evidence; and (5) the trial court erred in awarding Debbie attorney fees and costs. We affirm the trial court’s judgment.

Pacts

Brothers Max and Robert Coleman were equal partners in a business begun in 1980. Initially, they bought green plants in Florida and shipped them to Texas, but the business eventually evolved into a trucking firm that worked mostly for one client. The business operated principally under the partnership entitled Coleman Properties, using as well the beneficially owned corporation Green Foliage and Supply, Inc. for certain business purposes (collectively, the Partnership).

On December 1, 2001, Robert committed suicide. Max continued to operate the business, advancing Robert’s salary to his widow, Debbie Coleman, and paying certain of her expenses after Robert’s death. Debbie, the named beneficiary to a life insurance policy in Robert’s name, collected the proceeds on the policy. Debbie sought recovery of the value of Robert’s interest in the Partnership, demanding that Max wind up the business and distribute the proceeds. Max continued to operate the business and use the Partnership assets, operating under the newly registered name Coleman Logistics. Subsequently, Debbie sued Max, demanding the “redemption value” of Robert’s interest in the Partnership.

After a bench trial, the trial court determined, among other things, that (1) Debbie gave notice to wind up but Max failed to do so, (2) Debbie was entitled to the redemption price for Robert’s interest, and (3) Max never tendered the redemption price. The trial court rendered judgment against Max, discounting the redemption value of Robert’s interest by 15% because of “lack of control,” as Debbie was a transferee of the interest and not a partner. The court awarded Debbie the amount of $161,500, less certain amounts for a setoff and credit for payments made by Max, plus attorney fees for $20,000 and certain costs. Max’s motion for new trial was overruled by operation of law, and he filed this appeal.

I. Redemption or Distribution of Capital Account

In his first issue, Max argues that under the relevant statute, Debbie is a transferee of Robert’s interest, not a partner, and thus she is not entitled to receive the “redemption price” for Robert’s partnership interest. Rather, Max argues, the statutory provision governing distribution upon the winding up of a partnership applies, thus affording Debbie only the positive balance in Robert’s capital account at the time of his death.

Standard of Review and Statutory Construction

Because statutory construction is a question of law, we review the trial court’s conclusions de novo. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). Our primary objective when construing a statute is to ascertain and give effect to the legislature’s intent. Id. We look first to the plain and common meaning of the language of the statute. Id.; see Tex. Gov’t Code Ann. § 312.002 (Vernon 2005). We must read the statute as a whole and not just isolated portions. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). We also consider the objective the law seeks to obtain and the consequences of a particular construction. Id.; see Tex. Gov’t Code Ann. § 312.006 (revised statutes to be liberally construed to achieve their purpose and promote justice).

The Texas Revised Partnership Act

It is undisputed that Max and Robert did not have a written partnership agreement. It is also undisputed that the partnership was not for a particular term, for a specified undertaking, nor was a winding up required upon the occurrence of a specified event. Thus, the parties agree that the Partnership was a “partnership at will.”

The Texas Revised Partnership Act (TRPA) governs the relations between partners when the partners have not agreed otherwise. Tex.Rev.Civ. Stat. Ann. arts. 6132b — 1.03(a) (Vernon 2004-05) (hereinafter “TRPA”). The structure of the TRPA provides two ways for a departing partner to recover the value of his or her partnership interest: (1) through disposition of the partnership assets upon the winding up of the partnership, under TRPA § 8.06, or (2) if the partnership business is continued, through the buyout of the withdrawing partner’s interest by the remaining partners, under TRPA § 7.01. See Comment of the Bar Committee — 1993 to section 7.01 (“Article VII is new and provides for the redemption (buyout) of a withdrawn partner’s interest in lieu of winding up the business of the partnership.”)

Section 8.01 governs the winding up of a partnership. It provides that notice from a partner of a partnership at will constitutes an event requiring a winding up, but provides that a majority in interest may elect to continue the partnership. The rules for distribution upon a winding up require that assets first be applied to debts and next to “settle partnership accounts among the partners.” Section 8.06(b) governs the settlement procedures and provides, among other things, that “the profits and losses that result from the liquidation of the partnership property must be credited and charged to the partners’ capital accounts.”

The Bar Committee’s Comment to Section 8.01 states that, if the majority owners agree to continue the partnership, “the notifying partner’s interest is redeemed per Section 7.01.” Section 7.01, entitled “Redemption of Withdrawing Partner or Transferee’s Interest if Partnership Not Wound Up,” entitles a withdrawn partner to redeem his or her interest as follows:

(a) Redemption. If an event of withdrawal occurs ... and an event requiring a winding up does not occur within 60 days after the date of the withdrawal, ... the partnership interest of the withdrawn partner automatically is redeemed by the partnership as of the date of withdrawal in accordance with this section.

TRPA § 7.01. The “redemption price” is the “fair value” of the interest as of the date of withdrawal. Id. § 7.01(b). The Comment to that section refers to “redemption” as a “buyout.”

One event of withdrawal that triggers redemption is a “partner’s death.” Id. § 6.01(7)(A). Upon the death of a partner, the partner’s surviving spouse and his or her heirs become “transferees” of the partnership interest from the partner. Id. § 5.04(b).

Max argues that Debbie is entitled at most to any positive balance in Robert’s capital account, according to the provision governing distribution upon the winding up of a partnership. Id. § 8.06(b). Specifically, he argues that Debbie is a “transferee” of Robert’s interest, not a partner, and only partners are entitled to the redemption price under the literal terms of section 7.01(a). Further, he argues, section 7.01(n) is the exclusive provision for a transferee to redeem an interest, and Debbie does not qualify under that subsection. That is, section 7.01(n) provides a mechanism for redemption by a transferee of an interest in a partnership that is for a specific term or purpose, but not for a transferee of an interest in a partnership at will, as is the case here. Thus, Max argues, Debbie is entitled at most to any positive balance in Robert’s capital account under the winding up provisions in section 8.06(b).

We cannot agree with the construction of TRPA urged by Max. Section 8.06(b) requires that “the profits and losses that result from the liquidation of the partnership property must be credited and charged to the partners’ capital accounts.” The trial court found that Max did not wind up the business. It is undisputed that Max did not liquidate the business but continued to use the Partnership assets to operate the same business. Nonetheless, with no liquidation, Max urges that the portion of section 8.06(b) entitling a partner to the positive balance in the capital account should apply.

Max also argues that section 7.01 (n) is the exclusive means by which a transferee may realize a redemption, or buyout, of a partnership interest and Debbie does not meet the criteria of section 7.01(n). We note that, on its face, section 7.01 (n) does not apply to a partnership at will. We look to the overall structure of the statute to ascertain legislative intent. Sunset Valley, 146 S.W.3d at 642. The structure reveals the intent that a partnership interest be recoverable in one of two ways, through distribution upon a winding up of the partnership or through a buyout by the remaining partner(s) if the business continues. In the circumstances, the provision governing distribution upon a winding up does not apply because Max did not liquidate the business. Further, the legislative intent is clear that, under 7.01(a), had Robert elected when he was alive to withdraw voluntarily from the Partnership, he would have been entitled to receive the redemption value under section 7.01(a). We see no need to read the provisions governing redemption so narrowly as to deny his -widow the right to receive the redemption price when the surviving partner uses partnership assets to continue the same business. We resolve Max’s first issue against him.

II. Exclusion of Testimony under Dead Man’s Rule

The trial court refused to allow Max to testify about an alleged oral agreement with Robert whereby each partner’s life-insurance policy would fund the buyout of his respective partnership interest. The trial court determined that the evidence offered to corroborate Max’s testimony was not sufficient to corroborate the terms of the alleged agreement and thus Max’s testimony was inadmissible under the Dead Man’s Rule. Max asserts this was error, arguing that the documentary evidence and the testimony of the insurance agent, Milford Mach, was sufficient to corroborate Max’s testimony.

Standard of Review

Evidentiary rulings are committed to the trial court’s sound discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). The test is whether the court acted without reference to any guiding rules or principles, or whether its action was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Rule 601(b) of the rules of evidence provides in pertinent part:

(b) ‘Dead Man’s Rule’ in Civil Actions. In civil actions by or against executors ..., neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; ... Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a deceased ... merely because the witness is a party to the action or a person interested in the event thereof.

Tex.R. Evid. 601(b).

Texas courts construe the Dead Man’s Statute narrowly. Quitta v. Fossati, 808 S.W.2d 636, 641 (Tex.App.-Corpus Christi 1991, writ denied) (citing Lewis v. Foster, 621 S.W.2d 400, 404 (Tex.1981)). The rule does not prohibit testimony concerning statements by the deceased that are properly corroborated. See id. Corroborating evidence must tend to support some of the material allegations or issues that are raised by the pleadings and testified to by the witness whose evidence is sought to be corroborated. Id. It may come from any other competent witness or other legal source, including documentary evidence. Id. Corroborating evidence need not be sufficient standing alone to support the verdict, but must tend to confirm and strengthen the testimony of the witness and show the probability of its truth. Id. It is sufficient, for instance, if the corroborating evidence shows conduct by the deceased that is generally consistent with the testimony concerning the deceased’s statements. Id.

Analysis and Conclusion

Debbie asserts that Max failed to preserve error on this issue, by faffing to make an offer of proof as to what his testimony would be. Rule 103(a)(2) of the rules of evidence provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and the substance of the objection was made known to the trial court by offer of proof. Ludlow v. DeBerry, 959 S.W.2d 265, 269-70 (Tex.App.-Houston [14th Dist.] 1997, no writ). To preserve error adequately and effectively, an offer of proof must show the nature of the evidence specifically enough so that the reviewing court can determine its admissibility. Bohatch v. Butler & Binion, 905 S.W.2d 597, 607 (Tex.App.Houston [14th Dist.] 1995), aff'd, 977 S.W.2d 543 (Tex.1998).

We note that when Max was asked whether he and Robert had an agreement that the insurance proceeds would be used to buy out the deceased partner’s interest, Max answered “yes.” In the circumstances, we conclude this response was specific enough to show the nature of the testimony Max would offer so as to preserve error.

We cannot, however, conclude that the trial court abused its discretion in excluding Max’s testimony. Although there is evidence the Partnership paid the premium, the insurance policy covered Robert as the insured and named Debbie as the beneficiary. The policy did not list the Partnership as owner or beneficiary. Although Mach testified there were general discussions amongst him, Max, and Robert as to the merits of using insurance to fund a buyout, and that the brothers were “agreeable” to such an arrangement, Mach did not testify to personal knowledge of any key terms the brothers had actually agreed upon, e.g., whether or not the $100,000 was to be the full buyout price for the deceased partner’s interest. We cannot conclude that the trial court abused its discretion in ruling as it did. We resolve Max’s second issue against him.

III. Setoff and Credits

In his third issue, Max asserts that the evidence is legally and factually insufficient to support the amount of setoff and credits awarded Max against the redemption price. The trial court found that Max was entitled to a setoff in the amount of $17,800 for advances made to Robert in excess of those taken by Max, as well as a $28,000 credit for payments made to Debbie after Robert’s death. Max argues he proved excess advances to Robert totaling some $27,006 and credits totaling $35,612. Standard of Review

The standard of review for legal sufficiency is whether the proffered evidence as a whole “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). We view the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998).

If the party challenging the legal sufficiency of a finding did not have the burden of proof on the issue, the party must demonstrate there is no evidence to support that finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). We uphold the finding if it is supported by more than a scintilla of evidence. Burroughs Wellcome, 907 S.W.2d at 499. If a party challenging the legal sufficiency of an adverse finding did have the burden of proof on the issue, the party must demonstrate that the evidence conclusively established all vital facts in support of the issue. Smith v. Central Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex.App.-Houston [14th Dist.] 1989, writ denied).

Concerning the scope of review for legal sufficiency, we credit all favorable evidence that a reasonable factfinder could believe and disregard all contrary evidence unless a reasonable factfinder could not ignore it. See City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005). When reviewing findings of fact for factual sufficiency, we consider and weigh all of the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Analysis and Conclusion

Max asserts he conclusively showed he was entitled to $27,006, not $17,800, for advances taken by Robert above those taken by Max. Max testified the partnership advanced Robert $7,046 for rent for Robert’s daughter in college, $4,483 for his son’s car, and $15,477 for funds expended on Robert’s motorcycle. Although Max asserted these expenses exceeded those that he took, he produced no listing of monies he drew out in the same time period. Yet, he conceded that the Partnership had paid his daughter’s tuition during the relevant time period.

Because Max had the burden of proof on this issue, in our legal-sufficiency review, we examine whether he conclusively established all vital facts in support of the amounts he asserts he was owed as a setoff. Smith, 114, S.W.2d at 412. We cannot conclude that the evidence conclusively proves an amount larger than the $17,800 awarded. Neither can we conclude, after weighing all of the evidence, that the finding of $17,800 is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Max testified that he made over $35,612 in payments to Debbie after Robert’s death, not merely $28,000 as found by the trial court. His testimony indicates he had a document itemizing those payments, but it is not in the record before us. Debbie testified that Max made post-death payments of about “thirty, thirty-five thousand.” This included a documented $19,200 in continuing payments of Robert’s salary. Debbie’s testimony, however, indicated that the $30-35,000 figure also included payment of her daughter’s rent while in college (about $7,000, accounted for in the setoff) and payment on the heating and air conditioning system at their residence. Debbie testified that the system was installed before her husband’s death, that Max had a system installed in his home, and that both were being paid over time through the Partnership. Thus, the evidence supports the conclusion that Debbie’s receipt of payments on the heating and air conditioning system does not represent a benefit above what Max received. Accordingly, the evidence does not conclusively prove Max was entitled to a credit for $85,612. Weighing all the evidence, we cannot conclude the award of $28,000 in credit is against the great weight and preponderance of the evidence. Accordingly, we resolve Max’s third issue against him.

IV. Valuation of the 50% Interest Held by Debbie

In his fourth issue, Max challenges the legal and factual sufficiency of the evidence to support the valuation of Robert’s 50% partnership interest, as held by Debbie as a transferee. The trial court found the value of the Partnership to be $380,000. Max challenges the valuation by Debbie’s expert, Robert Dohmeyer, on a number of grounds. Because Max did not have the burden of proof on valuation, in reviewing for legal sufficiency, we examine the evidence to ascertain whether there is more than a scintilla of evidence to support the challenged finding. Smith, 774 S.W.2d at 412.

Max complains that Dohmeyer valued the business as of December 31, not December 1, 2001, which was the date of death. We note that Dohmeyer testified, nonetheless, that the value as of December 1 was not materially different than the value as of December 31. This is more than a scintilla of evidence to support the conclusion that Dohmeyer’s valuation was valid as of December 31.

Dohmeyer’s report stated a going-concern value of $373,909. Max asserts that he used inaccurate values for assets and liabilities as a basis for the valuation. Max testified that the correct values are those he had obtained from valuations of the individual pieces of equipment and the liabilities against each. We note the evidence shows that Dohmeyer’s figures came from the Partnership’s 2001 tax return and conclude this constitutes more than a scintilla of evidence to support the use of that data.

Max asserts the evidence was legally and factually insufficient to support the trial court’s finding that the value of the partnership was $380,000, as the maximum figure Dohmeyer testified to was $373,909. Our review of the evidence shows that there was evidence to support the higher value of $380,000. At trial, Max challenged certain data that Dohmeyer had used to attribute additional income to the partners. For her part, Debbie contended at trial that the Partnership owned two additional parcels of land, which had not been included in Dohmeyer’s valuation for the business. In post-trial argument, Debbie adjusted the figures to correct for the income errors Max had asserted and added back value consistent with her evidence at trial. With these adjustments, Debbie’s final valuation totaled $407,500. This constitutes more than a scintilla of evidence to support the value of $380,000.

In reviewing for factual sufficiency, we note that Max testified, based on the valuations of pieces of equipment he had obtained, that the debt was greater than the equipment was worth. Max, however, did not present an expert to value the business as a going concern. He testified that he originally thought the business was worth $120,000, but he now understood that “due to the offsets of long-term debt, the positives of receivables and things like that, there is a higher value to be ascertained.” We cannot conclude that the trial court’s finding that the Partnership was worth $380,000 is against the great weight and preponderance of the evidence.

Max also argued that Dohmeyer failed to evaluate the interest as a “transferee interest,” fading to account for the lack of control and lack of a non-compete agreement by Max. Max also complained the use of 15% as a discount factor was unsupported. The record shows that Doh-meyer testified, “in all my prior work where I’ve had this come up,” that a 10 to 15% discount was applied to a 50% interest. We note that Max did not object to Dohmeyer’s qualification as an expert, nor did he raise a Daubert challenge to this testimony. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995) (expert testimony unreliable if no more than subjective belief or unsupported speculation, quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

We conclude that there is more than a scintilla of evidence to support the trial court’s discounting of the interest at 15%. Further, we cannot conclude that this finding is against the great weight and preponderance of the evidence. Accordingly, we resolve Max’s fourth issue against him.

In his fifth issue, Max asserts that the trial court erred in awarding Debbie attorney fees and costs, because she was entitled to no recovery. Having concluded that Debbie is entitled to receive the redemption price, we resolve this issue against Max.

Accordingly, we AFFIRM the trial court’s judgment.

      . Section 8.01(g) states in pertinent part:
      (g) Notice from Partner if No Term or Undertaking; Option to Continue. If a partnership is not for a definite term or a particular undertaking and its partnership agreement does not provide for a specified event requiring a winding up, a request for winding up the partnership from a partner ... requires a winding up 60 days after the date of the partnership’s receipt of notice of the request or at a later date as specified by the notice, unless a majority-in-interest of the partners agree to continue the partnership.

      . Section 8.06(a) states:
      (a) Application of Property to Obligations. In winding up the partnership business, the property of the partnership, including the contributions of the partners required by this section, must be applied to discharge its obligations to creditors, including, to the extent permitted by other applicable law, partners who are creditors other than in their capacities as partners. Any surplus must be applied to pay in cash the net amount distributable to partners in accordance with their right to distributions under Subsection (b).

      .Section 8.06(b) provides that
      (b) Settlement of Accounts Among Partners. Each partner is entitled to a settlement of all partnership accounts on winding up the partnership business. In settling accounts among the partners, the partnership interest of a withdrawn partner that is not redeemed under Section 7.01 is credited with a share of any profits for the period after the partner's withdrawal but is charged with a share of losses for that period only to the extent of profits credited for that period, and the profits and losses that result from the liquidation of the partnership property must be credited and charged to the partners' capital accounts. The partnership shall make a distribution to a partner in an amount equal to that partner’s positive balance in the partners’ capital accounts ....

      . Section 7.0 l(n) deals with the obligation to redeem a transferee’s interest in a partnership that is not a "partnership at will”:
      (n) Obligation to Redeem Transferee. A partnership must redeem the partnership interest of a transferee for its fair value if:
      (1)the interest was transferred when:
      (A) the partnership was for a definite term not then expired or a particular undertaking not then completed; or
      (B) the partnership agreement provided for winding up on a specified event that has not yet occurred;
      (2) the definite term has expired, the particular undertaking has been completed, or the specified event has occurred; and
      (3) the transferee makes a written demand for redemption.


text:
    Dennis NAUSLAR and Nauslar Investments, L.L.C., Appellant v. COORS BREWING CO. and Golden Distributing Enterprises, L.P., Appellees.
    No. 05-04-00704-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 19, 2005.

      Martin J. Siegel, Houston, TX, for Appellant.
    Jon P. Christiansen, Michael J. Apraha-mian, Foley & Lardner LLP, Milwaukee, WI, Monica Wiseman Latin, J. Michael Hughes, Rodney H. Lawson and John Franklin Guild, Carrington, Coleman, Slo-man & Blumenthal, L.L.P., David Bryant, Diamond, McCarthy, Taylor, Finley, Bryant & Lee, Sean Joseph McCaffity, Dallas, TX, for Appellee.
    Before Justices BRIDGES, O’NEILL, and MAZZANT.
   OPINION

Opinion by

Justice O’NEILL.

The trial court granted the Defendants’ pleas to the jurisdiction for lack of standing on all of the Plaintiffs’ claims and dismissed the case. We conclude that (1) Plaintiff-Appellants lack standing on the statutory and common-law causes of action brought on their own behalf. Concerning the causes of action asserted “on behalf of’ the business entity that they sold, they affirmatively negate having capacity to bring those claims. Accordingly, we affirm the trial court’s dismissal of all of Plaintiffs’ claims. We reverse the trial court’s order denying Coors attorneys’ fees and remand that issue.

Facts

The crux of this dispute is the disapproval by Coors Brewing Co. (“Coors”) of a proposed consolidation in 2001 between Willow Distributors, L.P. (‘Willow”), an entity distributing Coors beer in the Dallas area, and the distributor of Miller beer, Miller of Dallas (“Miller”). Plaintiffs alleged that Willow and Miller had agreed to a joint venture that would be operated by a new entity, United LP. Willow and Miller would each own 50% of the new entity, and the cash flow from the new business would be shared equally. In addition, Nauslar asserts the new enterprise would employ him as a company manager.

At the time of the proposed consolidation (the “Consolidation”), neither of the Plaintiffs was party to the distributorship agreement with Coors. Rather, Willow was the contracting party and the named distributor under the distributor agreement with Coors. Plaintiff Dennis Naus-lar, individually, did not have a direct ownership interest in Willow, and Plaintiff Nauslar Investments was the limited partner in Willow. The structure underpinning Willow is as follows: Willow’s general partner was DEN L.P. and its limited partner was Nauslar Investments LLC. Nauslar, individually, was 100% owner of Nauslar Investments, which in turn was the limited partner in DEN L.P (general partner in Willow).

When, in September 2001, Nauslar presented the proposed Consolidation to Coors for its approval, Coors rejected the deal. Instead, Coors invoked its right under the distributorship agreement to negotiate exclusively to buy Willow. It assigned that exclusive right to Golden Distributing Enterprises, L.P. (Golden). Over the next year, according to Plaintiffs, it became clear that Golden could not feasibly consolidate with or purchase Willow. Subsequently, Nauslar approached Miller again, but this time Miller was interested in only an outright purchase of Willow. Coors approved an outright sale to Miller. Coors, relying on a clause in the distributorship agreement, required Nauslar to sign a “mutual release” on behalf of Willow. Under that agreement, both Willow and Coors released any and all claims each had against the other and also warranted that neither party had assigned any such claims to a third party. Nauslar signed the release, and Miller bought Willow and DEN L.P. from Nauslar and Nausar Investments for $57.8 million.

Nauslar and Nauslar Investments sued Coors, alleging it unreasonably disapproved the proposed Consolidation with Miller, in violation of the Texas Beer Industry Fair Dealing Law. They also brought a number of common-law claims against Coors and Golden, including one for tortious interference with the Consolidation. After two hearings, the trial court granted Coors’s and Golden’s pleas to the jurisdiction and dismissed all of the Plaintiffs’ causes of action for lack of standing. Plaintiffs brought this appeal, challenging the trial courts’ dismissal of their statutory and common-law causes of action.

Summary

Plaintiffs seek to bring their claims in their own right, as individual claims brought on their own behalf. They also assert — as former partners and owners of Willow — claims “on behalf of’ Willow, for alleged injuries to Willow itself, but with recovery going to Plaintiffs, not Willow. First, we address the individual claims and conclude that Plaintiffs lack standing to bring either the common-law or statutory causes of action in their own right. We address next the claims brought “on behalf of’ Willow, i.e., the Willow partnership’s claims. We conclude that Plaintiffs, in their live pleading, affirmatively negate that they have capacity to bring claims on behalf of Willow. Having rejected their other theory by which to allege capacity, we affirm dismissal of the claims asserted on behalf of Willow. We conclude that an award of attorney’s fees under the statute is mandatory if one party prevails in an action under that statute, and thus we reverse the trial court’s order denying Coors its attorney’s fees and remand that issue.

I. Common-Law Causes of Action Asserted as Individual Right of Action

We address whether the Plaintiffs have standing, in their own right, to bring and personally recover on the common-law causes of action they assert against Defendants. We note first the injury asserted. Plaintiffs allege that Willow was weakened by Coors’s efforts to force a deal with Golden, and that Willow’s value declined between the time of the disapproval in 2001 and the subsequent sale to Miller in 2003. Specifically, Plaintiffs assert damages as follows: Nauslar, individually, seeks redress for (1) the distributions, profits and other benefits of ownership he would have reaped as the sole owner of Willow and other corporate entities, had Coors approved the Consolidation; and (2) loss of salary, bonuses and other employment compensation he would have been paid by United (the operating entity to be formed upon Consolidation) as well as employment-related losses as an employee of Willow. Nauslar Investments, Inc. asserts that, as the former general partner of DEN LP (the general partner of Willow) and as the former limited partner of Willow, it was “injured to the same degree as — and could assert all claims of DEN LP and Willow.”

In sum, Nauslar seeks damages for loss of the benefits of ownership and employment-related losses. Nauslar Investments, as former general partner of the general partner of Willow, seeks damages that mirror those suffered by Willow.

A. Standard of Review and Principles Governing Standing

Because the question of standing is a legal question, we review de novo a trial court’s ruling on a plea to the jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Standing is a component of a court’s subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). The plaintiff has the burden of alleging facts that affirmatively demonstrate a court’s jurisdiction to hear a cause. Id. A plea to the jurisdiction challenges a trial court’s authority to hear a case by alleging that the factual allegations in the plaintiffs pleadings, when taken as true, fail to invoke the trial court’s jurisdiction. El Paso Cmty. Partners v. B & G/Sunrise Joint Venture, 24 S.W.3d 620, 623 (Tex.App.-Austin 2000, no pet.) (citing Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960)). We construe the allegations in the pleadings in favor of the pleader. Tex. Air Control Bd., 852 S.W.2d at 446.

When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id.

A person has standing to sue when he is personally aggrieved by the alleged wrong. Nootsie Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996). A person has standing if (1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; (2) he has a direct relationship between the alleged injury and claim sought to be adjudicated; (3) he has a personal stake in the controversy; (4) the challenged action has caused the plaintiff some injury in fact, either economic, recreational, environmental, or otherwise; or (5) he is an appropriate party to assert the public’s interest in the matter, as well as his own. Precision Sheet Metal Mfg. Co., Inc. v. Yates, 794 S.W.2d 545, 552 (Tex.App.-Dallas 1990, writ denied).

Without a breach of a legal right belonging to a plaintiff, that plaintiff has no standing to litigate. Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.-Tyler 2002, pet. denied); Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex.App.-Fort Worth 2001, pet. denied); Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex.App.Fort Worth 2001, no pet.). Only the person whose primary legal right has been breached may seek redress for an injury. Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex.1976) (defrauded party only can bring suit to set aside deed obtained by fraud). ‘Without breach of a legal right belonging to the plaintiff no cause of action can accrue to his benefit.” Id.

B. Legal Principles: Whose Primary Legal Right Was Allegedly Infringed?

Plaintiffs’ principle argument is that the issue raised concerns who owns the claims, and thus presents a question of capacity, not standing. They rely on Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex.1988) (a challenge to a shareholder’s right to bring a cause of action for wrongs done to the corporation raises a question of capacity). They also rely on Prostok v. Browning, 112 S.W.3d 876, 921 (Tex.App.Dallas 2003) (“A challenge to who owns a claim raises the issue of capacity, not standing.”), aff'd, 165 S.W.3d 336 (Tex.2005). We disagree that the pleadings raise only an issue of capacity, not standing. The case law reveals that, with respect to Plaintiffs’ individual common-law causes of action, a fundamental question is raised: Do these claims embody a primary legal right belonging to the Plaintiffs or does the Willow partnership have the primary right of action? That raises an issue of standing.

We note initially that Pledger cannot stand for the simplistic proposition that a challenge to a stakeholder’s bringing a suit to recover personally for corporate wrongs raises an issue of capacity only. The Pledger court did not, indeed could not, discuss standing because that issue was not before it. 762 S.W.2d at 145-46. The case was decided before the determination that standing is an component of subject-matter jurisdiction and thus can be raised first on appeal. See Tex. Air Control Bd., 852 S.W.2d at 446.

An individual stakeholder in a legal entity does not have a right to recover personally for harms done to the legal entity. Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex.1990). In Wingate, one corporate shareholder sued another alleging he had appropriated corporate assets. The court ruled that individual stockholders have no separate, independent right of action for injuries suffered by the corporation, when the injures merely result in depreciation of the value of plaintiffs’ stock. Id. at 719.

In Fredericksburg Indus., Inc. v. Franklin Int’l, Inc., 911 S.W.2d 518, 520 (Tex.App.-San Antonio 1995, writ denied), the president/employee of a furniture manufacturing corporation sued a corporate supplier, asserting he lost wages as a result of the supplier’s delivering defective glue. The court held he lacked standing: the cause of action belonged to the corporation alone, as the damages were to the corporation’s profits, and any claim the plaintiff had for lost wages was against the corporation. Id. at 521.

Other cases in the corporate context reaffirm that where damage is to the business entity’s worth, the individual stakeholder cannot personally recover, whether the damages sought are in terms of diminished value of an ownership interest or loss of employee benefits. In Mendenhall v. Fleming Co., Inc., 504 F.2d 879 (5th Cir.1974), the plaintiffs sought to recover personally for damages from antitrust violations arising from the operation of retail stores by a corporation, which they had created. Id. at 880. The court noted that the business allegedly interfered with was that operated by the corporation and the damages sought were direct damage to corporate worth. Thus, the plaintiffs lacked standing. Id. at 880-81. The right of recovery was the entity’s right alone, even though in an economic sense the impact “may bring about reduced earnings, lower salaries, bonuses, injury to general business reputation, or diminution in the value of ownership.” Id. at 881 (quoting Martens v. Barrett, 245 F.2d 844, 846 (5th Cir.1957)).

A partner has no individual, separate cause of action for losses suffered by reason of tortious interference with a contract between the partnership and a third party: damages for loss in value of the partnership interest or employment losses are subsumed in the partnership’s causes of action. Cates v. Int’l Tel. & Tel. Corp., 756 F.2d 1161 (5th Cir.1985) (construing Texas law).

C. Application and Conclusion

Nauslar generally argues that he has standing, because he was “personally aggrieved” by, and suffered “direct injury” from, Defendants’ actions in disapproving the Consolidation. He seeks to recover for loss of benefits of ownership and employment. Nauslar Investments asserts it has standing to sue, individually, for harms done to the partnership and seeks damages mirroring those Willow could recover.

As the case law demonstrates, Plaintiffs do not have a separate, individual right of action for injuries to the partnership that diminished the value of their ownership interest in that entity. Wingate, 795 S.W.2d at 719. Willow is the one who suffered the direct injury from the alleged harm to the partnership’s worth, and any loss to Plaintiffs in the sale price is “both indirect to and duplicative of’ the entity’s right of action. Mendenhall, 504 F.2d at 881. The right of recovery is Willow’s right alone, even though the economic impact of the alleged wrongdoing may bring about reduced earnings, salary or bonus. Fredericksburg, 911 S.W.2d at 520; Cates, 756 F.2d at 1181; Mendenhall, 504 F.2d at 881.

We note the applicability of the facts in Cates to the instant case. 756 F.2d 1161. The Cates plaintiff, a minority partner, attempted to bring individual claims for tortious interference with the partnership’s business, as do the Plaintiffs here. The damages sought were similar as well. The court’s holding warrants quotation:

Accordingly, any claims for damages which [plaintiff] suffered by reason of diminution in value of his partnership interest, or his share of partnership income, or his salary or bonus from the partnerships or their businesses, by reason of breach of such agreements, or tortious interference with such businesses, or anticompetitive conduct interfering with or limiting or “taking over” such businesses or their activities, are in effect subsumed within the causes of action of the partnerships and do not afford [plaintiff] ... a separate, individual cause of action.

Id. at 1181.

Accordingly, Willow possesses the primary legal right that was allegedly violated, and thus Willow is the exclusive party with a justiciable interest in redressing those alleged injuries. Accordingly, Plaintiffs do not have a standing to pursue and recover personally on the asserted common-law causes of action.

Plaintiffs’ arguments to the contrary do not alter our conclusion. Concerning the tortious-interference cause of action, Naus-lar argues that he has individual standing to pursue the claim under Sturges v. Wal-Mart Stores, Inc., 39 S.W.3d 608 (Tex.App.-Beaumont 1998), rev’d on other grounds, 52 S.W.3d 711 (Tex.2001). In that case, individuals were deemed to have standing where a proposed business entity was never formed due to the defendant’s interference. The appellate court held that the individual plaintiffs, who had signed the letter of intent, were all “interested parties who would have profited from the prospective lease,” who were directly involved in the building of the proposed structure, and who sustained “direct economic injury” as a result of Wal-Mart’s interference. Id. at 614-15.

Sturges is inapposite. The proposed entity in Sturges was never formed, leaving the principals in that enterprise as the directly injured parties. In today’s case, the direct injury from Defendants’ alleged wrongdoing was to Willow, the operating business entity that would have consolidated with Miller.

Plaintiffs also rely on Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518 (Tex.App.-Amarillo 1998, pet. denied) to overcome the obstacle that they were not party to the proposed consolidation agreement between Willow and Miller. In that case, plaintiff Abraham had a contract to purchase a ranch from defendant Payne. That contract was subject to a pre-existing preferential right of purchase contained in a contract between Payne and Campbell, which Campbell exercised to purchase the ranch. Defendants asserted Abraham lacked standing to sue for tortious interference, as he was not party to the Payne-Campbell contract. The court disagreed: whether Abraham was entitled to fulfillment of the direct contract to purchase with Payne turned on whether the third-party contract was properly exercised. Id. at 523-34.

Abraham is inapposite, as the analogy-fails at the outset. The plaintiff had a direct contract with the defendant. Disposition under that contract turned on whether the third-party contract was properly exercised. In today’s case, there is no direct contract between Plaintiffs and Defendants Coors and Golden. Accordingly, Plaintiffs lack standing to pursue their tor-tious-interference cause of action against Defendants.

Nauslar Investments asserts standing in its roles as former general partner of Willow’s general partner and former limited partner of Willow. To overcome the obstacle that it is not a general partner of Willow, it relies on the double derivative rule governing corporate derivative suits. To overcome the general rule that a partner cannot sue individually on a partnership claim, it relies on eases applying an exception to that rule. Those cases do not apply because, as discussed below, Nauslar Investments sold to Miller the entirety of its interest in Willow. None of the cases it cites stands for the proposition that a partner that has sold its entire interest in the partnership can personally recover on a claim belonging to that partnership. The Mendenhall court, discussing the sale of corporate stock, captured the effect of the Plaintiffs’ sale of the partnership:

When [plaintiffs] sold their corporate stock to a third party, they sold their right to control the very cause of action they now attempt to assert. This suit cannot reclaim that corporate cause of action by asserting the same damage sustained by the corporation also served to diminish the value of their individually held estates.

Mendenhall, 504 F.2d at 881.

II. Plaintiffs’ Statutory Causes of Action Asserted in Their Right

Plaintiffs assert that Coors unreasonably disapproved the Consolidation in violation of the Texas Beer Industry Fair Dealing Law (BIFDL), which prohibits manufacturers from withholding approval of the transfer of distributorship rights if the substituting party meets “reasonable standards.” Tex. Anco. Bev.Code Ann. § 102.71, -.76, -.77, -.79 (Vernon 1995). We examine whether Plaintiffs have standing, in their own right, to bring a claim for the alleged violation of BIFDL.

A. Legal Principles Governing Standing Based on Statute

Standing to sue can be predicated upon either statutory or common-law authority. See Williams v. Lara, 52 S.W.3d 171, 178-79 (Tex.2001). The general rules of standing apply unless statutory authority for standing exists. Id. at 178. If standing is statutorily conferred, the statute granting authority and the case law interpreting it serve as the proper framework of analysis. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984).

We review matters of statutory construction de novo. City of San An tonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). In construing a statute, our objective is to determine and give effect to the legislature’s intent. Id. If a statute’s meaning is unambiguous, we generally interpret the statute according to its plain meaning. Id. We begin by examining the exact wording and apply the tenet that the legislature chooses its words carefully and means what it says. Williams v. Vought, 68 S.W.3d 102, 115 (Tex.App.-Dallas 2001, no pet.) (Morris, J., concurring). We determine legislative intent from the entire act and not just its isolated portions. City of San Antonio, 111 S.W.3d at 25.

BIFDL provides a judicial remedy for a “manufacturer” or “distributor,” as defined in the statute, who are parties to a distributorship agreement:

If a manufacturer or distributor who is a party to an agreement pursuant to Section 102.51 of this code fails to comply with this Act or otherwise engages in conduct prohibited under this Act ... the aggrieved manufacturer or distributor may maintain a civil action in a court of competent jurisdiction....

Tex. Alco. Bev.Code Ann. § 102.79(a).

BIFDL prohibits a manufacturer from withholding approval of a distributor’s transfer of its distributorship interest when the person or persons to be substituted “meet reasonable standards.” The full provision reads as follows:

No manufacturer shall unreasonably withhold or delay its approval of any assignment, sale, or transfer of the stock of a distributor or all or any portion of a distributor’s assets, distributor’s voting stock, the voting stock of any parent corporation, or the beneficial ownership or control of any other entity owning or controlling the distributor, including the distributor’s rights and obligations under the terms of an agreement whenever the person or persons to be substituted meet reasonable standards. ...

Id. § 102.76(a) (emphasis added).

In a case construing these two sections of BIFDL, the Corpus Christi Court of Appeals held that the plaintiff did not have a statutory right to maintain its cause of action against the distributor, because it failed to comply strictly with the statute’s requirements. Ace Sales Co., Inc. v. Cerveceria Modelo, S.A. de C.V., 739 S.W.2d 442, 447 (Tex.App.-Corpus Christi 1987, writ denied). The distributor Ace sought damages for the manufacturer’s failure to approve a transfer of the distributorship rights to Ace’s buyer. The court noted that section 102.79 of BIFDL provides a remedy for parties to an agreement under section 102.51, which in turn requires a written agreement. Tex. Alco. Bev.Code Ann. §§ 102.51, 102.79. Because Ace did not produce a written agreement, it had no remedy under BIFDL. Id. In so holding, the court relied on the principle that “if a cause of action and remedy for its enforcement are derived from a statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable.” Id. (quoting Tex. Catastrophe Prop. Ins. Ass’n v. Council of Co-Owners of Saida II Towers Condo. Ass’n, 706 S.W.2d 644, 646 (Tex.1986)).

B. Analysis and Conclusion

Nauslar argues that although he is not a “distributor” under the BIFDL definition, he should be entitled to sue under the statute, based on its text, legislative history, and purpose. Nauslar points to the text of Section 102.76(a) that protects not just transfers of the distributorship itself, but also transfers of “the voting stock of any partner corporation,” as well as the “beneficial ownership” of entities owning the distributor. He argues that persons representing those interests must have standing under the statute, to effectuate the broad protective purpose of the statute. He also points to pieces of legislative history to indicate that, in discussing the pending bill, the legislators did not distinguish between the business entity that comprises the distributorship and the individuals who own that entity.

We are not persuaded to adopt Plaintiffs’ expansive reading of the text of BIFDL. Rather, we are persuaded by Appellee’s argument that when the legislature intends to grant a remedy to all persons who might be injured by a statutory violation, it plainly grants a remedy to “injured persons.” See, e.g., Tex. Bus. & Com.Code Ann. § 19.02 (Vernon 2002) (granting judicial remedy to “a person injured” by a violation of the statute regulating relationship between manufacturers and dealers of particular equipment); Tex. Occ.Code Ann. § 2352.201 (Vernon 2004) (violators of statute are liable to “an injured party ... ”).

We apply the tenet that the legislature chooses its words carefully and means what it says. Williams, 68 S.W.3d at 115. The remedies section, Section 102.79(a), plainly states who may sue for violations of the statute: “manufacturers” and “distributors,” as defined under the statute, who are party to a distributorship agreement. These plaintiffs do not fall within the statutorily defined class of persons who may sue. Neither are we persuaded to read the statute expansively to go beyond its plainly stated purpose. The statute states that its purpose is “to promote the public’s interest in the fair, efficient, and competitive distribution of beer within the state.... ” Tex. Alco. Bev.Code Ann. § 102.72. As noted, Willow itself has standing to redress violations of the statute. This satisfies the statutory purpose of protecting the general public interest in fair competition. We conclude the statutory purpose does not extend to protect Plaintiffs’ individual interests in obtaining higher compensation from the transfer of its interest in Willow. Tex. Catastrophe Prop. Ins., 706 S.W.2d at 646 (when cause of action derives from statute, statutory provisions must be complied with in all respects or action not maintainable).

C. Was the No-Assignment Clause Void?

Nauslar asserts Coors demanded that Willow sign a mutual release of any claims it had against Coors, which included Willow’s warranty that it had not assigned any of its claims to a third party. Nauslar asserts that, but for Coors’s insistence that he execute the release by Willow, he would have assigned Willow’s claims to himself. The release, Nauslar asserts, violated the “anti-waiver” provision of BIFDL. He argues Coors should not be allowed to circumvent the section prohibiting unreasonable disapproval of a transfer by violating the section prohibiting the release of such claims. As a remedy, Nauslar invokes equity principles, urging the court to declare an “equitable assignment” of Willow’s claims to Nauslar, thus enabling him to sue — as constructive assignee of Willow’s claims — under BIFDL.

Section 102.72(c) of BIFDL states, “The effect of this Act may not be varied by agreement. Any agreement purporting to do so is void and unenforceable to the extent of such variance only.” Nauslar asserts that this “anti-waiver” provision prohibited Coors from conditioning its approval of the sale of Willow on Willow’s release of its claims against Coors. Naus-lar insists the only permitted reason for disapproving a transfer under section 102.76 is when the proposed transferee fails to meet “reasonable standards.” Coors is thus not permitted to disapprove a transfer based on a failure to sign a release. Thus Nauslar argues, the release-with-non-assignment clause, which waives the distributor’s BIFDL claim, should be declared void under the anti-waiver provision, section 102.72(c).

We note that the issue Nauslar raises, whether he individually had statutory standing to pursue Willow’s claim, turns on the permissibility of the clause in which Willow warrants it did not assign its claims to a third party. Thus, we need not address whether the release by Willow of its own BIFDL claims against Coors was prohibited by the anti-waiver provision in section 102.76(c). The issue is this: Is a distributor’s representation that it has not assigned its statutory claims, if any, to a third party an agreement that “varies the effect of the BIFDL” so as to be void? As discussed, the plain language of section 102.79 grants a right of action only to “distributors or manufacturers” that are party to a distributorship agreement. Nauslar points to no authority to indicate that BIFDL claims must remain freely assignable to those not otherwise entitled to bring such claims in them own right. And we see no language in the text of the statute requiring the reading urged by Plaintiffs.

Accordingly, we hold that neither Plaintiff has standing to bring the claims, on their own behalf, seeking redress for violations of BIFDL.

III. Plaintiffs’ Causes of Action Asserted “On Behalf Of’ Willow

We turn to Plaintiffs’ assertion of causes of action purportedly brought “on behalf of’ Willow. Plaintiffs assert — as the former partners in and owners of Willow— they are entitled to recover personally on Willow’s claims for injuries suffered by Willow. Plaintiffs argue Defendants’ challenges go to the issue of “claim ownership” only. They assert, “An argument about whether a current or former owner, as distinct from his company, owns a particular claim is an argument about capacity.”

A. Legal Principles

A plaintiff must have both standing and capacity to bring a lawsuit. Coastal Liquids Transp. L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001). A party has capacity to sue when it has legal authority to act, regardless of whether it has a justiciable interest in the controversy. Nootsie, Ltd., 925 S.W.2d at 661. Standing pertains to a person’s justiciable interest in a suit and is a component of subject-matter jurisdiction. See Tex. Air Control Bd., 852 S.W.2d at 443, 445-46. Capacity is a party’s legal authority to go into court to prosecute or defend a suit. El T. Mexican Rests., Inc. v. Bacon, 921 S.W.2d 247, 249 (Tex.App.Houston [1st Dist.] 1995, writ denied).

B. Analysis and Conclusion

Plaintiffs allege, and it is undisputed, that Plaintiffs sold their interest in the Willow partnership to Miller. Willow’s causes of action belong to the partnership, not to its partners. Absent an agreement otherwise, Willow’s assets, including any chose in action it held, would have transferred to Miller in the sale.

Plaintiffs do not allege that they consensually acquired legal title to Willow’s causes of action — and thus possess exclusive authority (capacity) to prosecute and recover on Willow’s claims. That is, they do not allege that, despite the sale to Miller, they retained title to Willow’s causes of action, or otherwise acquired those assets by assignment. Indeed, Plaintiffs allege and argue the opposite: they allege that Coors conditioned its approval of the sale on Willow’s warranting it had not assigned its claims against Coors to a third party. Nauslar argues, but for that condition, he would have caused Willow to assign its claims to himself.

Plaintiffs thus judicially admit they have do not own legal title to Willow’s causes of action. Houston First American Sav. v. Munich 650 S.W.2d 764, 767 (Tex.1988) (judicial admissions are assertions of fact, not pled in the alternative, in the live pleadings of a party). Plaintiffs do posit the “constructive assignee” theory by which to establish their alleged right to bring Willow’s causes of action. As a legal basis, they argue the warranty of no assignment violates BIFDL and thus should be declared void. We concluded above, as a matter of law, that the non-assignment clause does not violate BIFDL. Plaintiffs allege no other legal basis to avoid the effect of their having failed to acquire the legal right to prosecute and personally recover on Willow’s causes of action.

To bring suit and recover on a cause of action, a plaintiff must have both standing and capacity. El T. Mexican Rests., 921 S.W.2d at 250. It is recognized that a party may plead himself out of court, e.g., the plaintiff may plead facts which affirmatively negate his cause of action. Tex. Dept. of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974) (citing Schroeder v. Tex. & Pacific Ry. Co., 243 S.W.2d 261 (Tex.Civ.App.-Dallas 1951, no writ)). Plaintiffs affirmatively negate that they own legal title to Willow’s claims, asserting instead a legal theory to overcome that fact, which we have rejected. We conclude that, on the state of the pleadings, Plaintiffs lack capacity to bring Willow’s partnership claims. Thus, the suit cannot proceed on those causes of action. We decline to remand for the trial court to engage in a futile inquiry. Wilson v. Texas Parks and Wildlife Dept., 8 S.W.3d 634, 635 (Tex.1999) (declining to remand for retrial of issue on which no evidence was offered; such “would be improper and, it appears, futile”); Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979) (declining to remand when futile and not in furtherance of judicial economy). We conclude the claims asserted “on behalf of’ Willow were properly dismissed. Accordingly, we need not reach the issue whether Plaintiffs also lacked standing to pursue Willow’s claims. In addition, we need not reach other unrelated issues raised by Plaintiff.

IY. Attorney Fees under BIFDL

Coors asserts, on cross-appeal, that the trial court erred in denying Coors attorney fees under BIFDL. Coors argues it prevailed on the BIFDL claims and an award of attorney’s fees is mandatory to the prevailing party in an action brought under BIFDL.

Section 102.79(c) of BIFDL states,
The prevailing party to any action under Subsection (a) of this section shall be entitled to actual damages, including the value of the distributor’s business, as specified in Section 102.77 of this code, reasonable attorney’s fees, and court costs.

Tex. Alco. Bev.Code Ann. § 102.79(c) (emphasis added). Subsection (a) provides for a right of action for a “manufacturer or distributor” who is party to a distributorship agreement. If the defending manufacturer or distributor fails to comply with the statute, “the aggrieved manufacturer or distributor may maintain a civil action in a court of competent jurisdiction....” Id. § 102.79(a) (emphasis added).

Plaintiffs respond that, if they do not have standing under the statute, then the trial court lacks jurisdiction to award attorney’s fees, relying on Smith v. Tex. Improvement Co., 570 S.W.2d 90, 92 n. 3 (Tex.App.-Dallas 1978, no writ) (when court lacks jurisdiction, court cannot render judgment j.n.o.v.; only valid order is one of dismissal).

We have concluded that Plaintiffs lack standing to bring the BIFDL claims, either in their own right or “on behalf of’ Willow. Coors thus qualifies as a “prevailing party” within the meaning of section 102.79(c). Robbins v. Capozzi, 100 S.W.3d 18, 27 (Tex.App.-Tyler 2002, no pet.) (“prevailing party” successfully prosecutes or defends against an action; prevailing party is one who is vindicated). The BIFDL claims were brought under subsection (a) as section 102.79(c) requires. Further the fee award is mandatory, in that subsection (c) explicitly states the prevailing party “shall” recover reasonable attorney’s fees. See Town East Ford Sales, Inc. v. Gray, 730 S.W.2d 796, 812 (Tex.App.-Dallas 1987, no writ) (fees mandatory under statutory provision stating “consumer who prevails shall be awarded court costs and reasonable and necessary attorney’s fees”).

The Plaintiffs’ reliance on the broad statements in Smith is misplaced. That case did not address an issue involving a statutory provision mandating an award of fees. A trial court’s dismissal for lack of subject-matter jurisdiction does not prevent the concurrent award of attorney’s fees under the mandatory award provision. See Galveston County Comm’rs Court v. Lohec, 814 S.W.2d 751, 755 (Tex.App.-Houston [ (14th Dist.) ] 1991), rev’d on other grounds, 841 S.W.2d 361 (Tex.1992) (under declaratory-judgment statute, trial court could award attorneys’ fees against party found to have no standing). Further, the statute is worded such that a manufacturer or distributor may maintain an action and the prevailing party in that action shall recover reasonable attorney fees. Thus, the statutory text mandates the award of fees even if the action cannot be maintained, whether or not it is dismissed for lack of jurisdiction. Accordingly, we reverse the trial court’s order denying Coors attorney’s fees and remand that issue for further proceedings.

Accordingly, we AFFIRM the trial court’s dismissal of all of Plaintiffs claims. We REVERSE the trial court’s order denying Coors attorney’s fees under BIFDL and REMAND that issue for further proceedings.

      . Plaintiffs sued Coors for breach of contract and sued both Coors and Golden for conspiracy to terminate the Consolidation, negligence per se, and tortious interference. Nauslar also asserted that he, individually, was a third-party beneficiary to the Consolidation agreement. We refer to these causes of action collectively as Plaintiffs’ common-law actions.

      . The facts in the cited cases are not analogous: Allied Chemical Co. v. DeHaven, 824 S.W.2d 257 (Tex. App-Houston [14th Dist.] 1992,) (exceptional circumstances made it inequitable to prevent resigning partner from bringing suit on behalf of partnership during winding-up phase); Tex. Westheimer Corp. v. 5647 Westheimer, 68 S.W.3d 15, 21-22 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (dispute over rights to profit participation owed to partnership by third party; suit instituted during winding-up phase of partnership) In today's case, the partnership was not wound up, but as discussed below, Plaintiffs sold the partnership in its entirety.

      . It is undisputed that Willow itself has standing to pursue a BIFDL claim. Willow is not a party to this suit and Plaintiffs disavow that they are suing derivatively on any claims that belong to Willow.

      . Under section 102.71, "distributor” is defined as a person licensed under Section 64.01 or 65.01 of the Act, which sections in turn define the activities a licensed distributor is authorized to perform. Tex. Alco. Bev.Code Ann. §§ 64.01, 65.01, 102.71.

      . Under the Texas Revised Limited Partnership Act (TRLPA), the partnership, not the partners, own the partnership's property. Tex.Rev.Civ. Stat. Ann. art. 6132a-7.01 (Vernon Supp.2004-05). When a business entity is acquired in its entirety by another, in the absence of specific terms to the contrary, both the liabilities and assets of the acquired company are transferred to the purchaser. Duke Energy Field Servs. Assets, L.L.C. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 68 S.W.3d 848, 850 (Tex.App.-Texarkana 2002, pet. denied).

      . Plaintiffs plead, in their live pleading:
      [A]s a condition for gaining its approval, and in tacit acknowledgement of its past wrongdoing, Coors extracted a purported release from Willow for claims against Coors arising out of its former, illegal conduct.

      Coors’ release also contained the following provision requiring Nauslar to represent that he had not assigned Willow's claim to any third party ...
      If Coors had not conditioned approval of Nauslar’s sale of Willow and DEN to Miller of Dallas on execution of its release in its original form, and had instead agreed to allow assignments, Nauslar would have assigned to himself all rights possessed by Willow to sue Coors for the claims alleged in this petition.

      . In addition, at the end of the first hearing, the trial court ordered Plaintiffs to replead with much more specificity so that you make it clear "who is suing for what, what wrong to whom, when, and causing whatever for what period of damages.... I'm probably going to grant [the pleas to jurisdiction] the next go round if you don’t make it clear....” See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004) (if plaintiff given opportunity to amend and still fails to allege facts sufficient to withstand plea to jurisdiction, court should dismiss action).


author: Justice FITZGERALD.

text:
    PAJ, INC. d/b/a Prime Art & Jewel, Appellant v. THE HANOVER INSURANCE COMPANY, Appellee.
    No. 05-04-01047-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 26, 2005.

      Baxter W. Banowsky, Banowsky Betz & Levine, P.C., Dallas, for Appellant.
    R. Lynn Fielder, Fisk & Fielder, P.C., Dallas, for Appellee.
    Before Justices BRIDGES, FITZGERALD, and FRANCIS.
   OPINION

Opinion by

Justice FITZGERALD.

PAJ, Inc. d/b/a Prime Art & Jewel brought suit against The Hanover Insurance Company, seeking a declaration concerning Hanover’s contractual obligation to defend or indemnify PAJ in copyright infringement litigation. The parties filed cross-motions for summary judgment below concerning the interpretation of their contract for insurance. The trial court granted Hanover’s motion and denied PAJ’s motion. PAJ challenges those rulings in five issues in this Court. For the reasons discussed below, we affirm the trial court’s order,

The Summary Judgment Proceedings

The summary judgment proceedings were conducted on the basis of the following facts, to which the parties stipulated for purposes of summary judgment only:

1. PAJ is a manufacturer and distributor of jewelry.
2. Hanover provided general liability insurance to PAJ from July 10,1993, through June 10, 1999, [under identified numbered policies].
3. On or about November 23, 1998, PAJ received a demand from Yur-man Designs, Inc. (‘Yurman”) demanding that PAJ cease and desist from its marketing of a particular product line of jewelry claiming, among other things, a copyright violation (the “Yurman Claim”).
4. In December 1998, Yurman filed a lawsuit against PAJ styled Yurman Design, Inc. v. PAJ, Inc. d/b/a Prime Art & Jewel, No. 98 CV 8697, 1998 WL 34324335, filed in the United States District Court for the Southern District of New York (the “Yurman Suit”).
5. The Yurman Suit alleged, among other things, that PAJ had infringed Yurman’s copyright on products marketed by Yurman.
6. PAJ received notice of the Yurman Suit on or about December 8, 1998.
7. PAJ did not notify Hanover of either the Yurman Claim or the Yurman Suit until it met with its insurance agent in anticipation of renewal, sometime between April and June, 1999.
8. PAJ did not notify Hanover of either the Yurman Claim or the Yurman Suit as soon as practical, rather, the delay in notifying Hanover was due to PAJ’s failure to recognize that it might have insurance coverage for the Yurman Claim and/or the Yur-man Suit until it met with its insurance agent.
9. Hanover was not prejudiced by the untimely notice of the Yurman Claim and the Yurman Suit.

The parties further stipulated that the only issue to be presented in the summary judgment proceeding would be whether PAJ’s untimely notice to Hanover would bar PAJ’s recovery under the policy as a matter of law, despite the fact that Hanover was not prejudiced by the delay. Hanover’s motion argued that an insured’s violation of a notice provision is sufficient on its own to bar the insured’s claim on a policy. PAJ’s motion argued that untimely notice could only bar a claim if the delay caused prejudice to the insurer. The trial court, with the facts and issues thus limited, granted Hanover’s motion for summary judgment and denied PAJ’s. The court’s order expressly found that Hanover did not have to show prejudice from PAJ’s untimely notice. PAJ appeals.

When both sides have moved for summary judgment and one motion is granted and one denied, we address all questions presented and render the judgment the trial court should have rendered. Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 583 (Tex.2002).

The REQUIREMENT OF PREJUDICE

The parties agree that the dispositive issue in this appeal is essentially the same as the issue below: whether Hanover was required to show that it had been prejudiced by PAJ’s untimely notice in order to rely on that untimely notice as a defense to coverage. PAJ offers three arguments in favor of requiring such a showing of prejudice: (1) the policy’s notice provision is properly classified as a covenant rather than a condition, and only a material breach of a covenant (i.e., one that causes harm) will excuse performance by the non-breaching party; (2) the notice provision’s classification is ambiguous, so it should be read in favor of coverage; and (3) even if the notice provision is a condition to coverage, Texas courts have still required a showing of prejudice before untimely notice will allow an insurer to avoid a claim. We address these arguments in turn.

Classification of the Notice Provision

Initially, PAJ argues that the policy’s notice provision is a covenant, rather than a condition. A condition to a contractual obligation is an act or event that must occur before there is a right to immediate performance and before there can be a breach of the contractual obligation. See Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976). A contractual covenant, on the other hand, is a promise to perform, and a material breach of that promise can lead immediately to liability. See McMahan v. Greenwood, 108 S.W.3d 467, 484 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (citing Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.1992)). Likewise, a material breach of a covenant by one contracting party excuses the performance of the other party. Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex.1994). A material breach includes an element of harm or prejudice to the non-breaching party. Id. at 693.

The distinction between condition and covenant is significant in this case. PAJ argues the contract’s notice provision is a covenant. Given that understanding, PAJ’s untimely notice would excuse Hanover’s performance only if the untimely notice were a material breach, i.e., only if Hanover was prejudiced by the breach. Hanover, on the other hand, argues the notice provision is a condition to Hanover’s performance. Thus, under Hanover’s understanding, Hanover would have no obligation to perform unless PAJ gave timely notice, and prejudice to Hanover would be irrelevant.

Texas courts have consistently held that compliance with an insurance policy’s notice provision is a condition precedent to the insurer’s liability on the policy. See, e.g., Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173-74 (Tex.1995) (quoting Weaver v. Hartford Acc. & Indem. Co., 570 S.W.2d 367, 369 (Tex.1978)). Given the settled nature of this classification, we look at the policy at issue to determine whether it expresses a clear intention to the contrary. At the outset, the policy’s notice requirements fall under the heading “Commercial General Liability Conditions.” The provisions require that “If a claim is made or ‘suit’ is brought against any insured, you must ... [njotify us as soon as practicable.” Under the same heading, the policy states that no one may “sue [Hanover] on this Coverage Part unless all of its terms have been fully complied with.” The placement and language of these provisions support the conclusion that the insurer’s obligations are conditioned on compliance with the policy’s notice requirements. Accordingly, we do not find the provisions’ language to be antithetical to the well-settled understanding that notice to an insurer is a condition to the insurer’s obligations under the policy. See Hohenberg Bros. Co., 537 S.W.2d at 3 (no particular words necessary for existence of condition). This classification of the notice provision as a condition rather than a covenant defeats PAJ’s first argument for the requirement to show prejudice from the untimely notice.

We resolve PAJ’s third issue against it.

Ambiguity of Notice Provision

PAJ argues next that if the notice provision of the policy is not a covenant, then the language of the provision is ambiguous. An ambiguous provision in an insurance policy, according to PAJ, must be construed against Hanover in a manner that favors coverage. If the language of a policy provision is worded so that it can be given a definite or certain legal meaning, then the provision is not ambiguous and we construe it as a matter of law. American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). Our review of the notice provision under settled Texas law leads us to conclude it can be given definite meaning and legal effect. In the context at issue, the definite meaning and legal effect is that of a condition precedent to coverage. PAJ argues its reading of the provision is equally reasonable and plausible. We disagree, and a provision is not ambiguous merely because the parties offer conflicting interpretations. Id.

PAJ’s fourth issue is not well-taken.

Texas Courts’ Interpretations of Notice Provisions

Finally, PAJ argues that even if the notice provision is an unambiguous condition precedent, Texas law still requires Hanover to show prejudice before it can defend on untimely-notice grounds. There are some cases decided under Texas law that classify a notice provision as a condition, but still require the insurer to show prejudice before violation of the condition becomes an effective defense. See, e.g., Harwell, 896 S.W.2d at 173-74 (policy itself expressly required showing of prejudice to defeat coverage on account of failure to provide notice). Accordingly, although we have determined the relevant notice provision is an unambiguous condition, we must look to Texas courts’ treatment of similar provisions to determine whether a showing of prejudice might still be necessary.

In 1972, the Texas Supreme Court confirmed that if an insured breached the condition precedent regarding notice, then “liability on the claim was discharged, and harm (or lack of it) resulting from the breach was immaterial.” Members Mut. Ins. Co. v. Cutaia, 476 S.W.2d 278, 279 (Tex.1972). The insured’s failure to perform the condition was treated as an absolute defense to liability on the policy. When asked to imply a requirement to show harm from the untimely notice, the supreme court declined:

Our conclusion is, however, that on balance it is better policy for the contracts of insurance to be changed by the public body charged with their supervision, the State Board of Insurance, or by the Legislature, rather than for this Court to insert a provision that violations of conditions precedent will be excused if no harm results from their violation.

Id. at 281.

In 1973, the State Board of Insurance did make a change to some insurance contracts in this regard, mandating attachment of an endorsement to all Texas general liability policies. The policy before us contains this endorsement:

TEXAS CHANGES —CONDITIONS REQUIRING NOTICE
With regard to Bodily Injury and Property Damage Liability, unless we are prejudiced by the insured’s or your failure to comply with the requirement, any provision of this Coverage Part requiring you or any insured to give notice of “occurrence”, claim or “suit”, or forward demands, notices, summonses or legal papers in connection with a claim or “suit” will not bar coverage under this Coverage Part. (Emphasis added.)

Section I of PAJ’s policy divides covered claims into two groups. “Coverage A” includes bodily injury and property damage liability, the categories specifically covered by the above endorsement. “Coverage B” includes personal and advertising injury liability, neither of which is addressed by the endorsement. The parties agree that the copyright infringement claim made the basis of the lawsuit below implicates only the policy’s advertising injury section.

Hanover relies primarily upon Gemmy Industries Corp. v. Alliance General Insurance Co., 190 F.Supp.2d 915 (N.D.Tex.1998), aff'd 200 F.3d 816 (5th Cir.1999), and McCutchin v. Trinity Universal Insurance Co., No. 05-97-00826-CV, 1999 WL 793367 (Tex.App.-Dallas Oct.6, 1999, no pet.) (not designated for publication). Gemmy affirmed a summary judgment in a posture very similar to the case before us. In that case, the insured waited more than a year after it had been sued for Lanham Act violations to seek coverage under the advertising injury portion of its general liability policy. The court concluded the delay constituted untimely notice as a matter of law. 190 F.Supp.2d at 921. The issue of prejudice was raised, but the court concluded that “by its own terms” the endorsement requiring a showing of prejudice to bar untimely claims for bodily injury or property damage did not apply. Id. at 922. To the contrary, the court concluded, “[tjhere is no prejudice requirement under Texas law with respect to coverage for advertising injury.” Id. (citing Chiles v. Chubb Lloyds Ins. Co., 858 S.W.2d 633, 635-36 (Tex.App.-Houston [1st Dist.] 1993, writ denied)); see also McCutchin, 1999 WL 793367 at *3 (endorsement does not require prejudice to avoid advertising injury liability).

PAJ, on the other hand, relies primarily on a pair of cases concluding that — regardless of the nature of the claim and coverage involved — a showing of prejudice is required before coverage is lost for failure to give an insurer timely notice. See Travelers Indem. Co. of Conn. v. Presbyterian Healthcare Resources, No. Civ. A. 3:02-CV-1881-P, 2004 WL 389090 (N.D.Tex. Feb.25, 2004); St. Paul Guardian Ins. v. Centrum G.S. Ltd.,383 F.Supp.2d 891 (N.D.Tex., 2003). Both Travelers and St. Paul rely heavily on Hanson Production Co. v. Americas Insurance Co., 108 F.3d 627 (5th Cir.1997), and Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691 (Tex.1994), for the proposition that insurance companies must always show prejudice before a breach by the insured will bar coverage. We disagree that either of those cases should be read so broadly. Hanson states that the court was “strongly influenced” by the opinion in Hernandez in making its prediction as to what the Texas Supreme Court would do in its case. Hanson, 108 F.3d at 630. Hernandez, however, did not deal with a notice provision or any other condition precedent. Instead, the Hernandez court held that an insurer could refuse coverage under the policy’s settlement-without-consent exclusion only when the insurer was actually prejudiced by the insured’s settlement. Hernandez, 875 S.W.2d at 692. We see a significant difference between a policy condition (performance of which is necessary to trigger any obligation for coverage) and a policy exclusion (which operates only after the obligation for coverage is in place). Accordingly, we decline to follow the federal trial court opinions that have equated the two and have created the extra-contractual obligation of an insurer to show prejudice following the insured’s failure to perform a condition.

Although neither Gemmy nor McCutch-in represents binding precedent for this Court, we conclude the reasoning in those opinions is sound. Before the policy endorsement requiring prejudice was added to general liability policies, failure to perform a notice condition was an absolute defense to liability on the policy. We read that policy endorsement to be limited to claims for bodily injury and property damage. For thirty years, the entities charged with overseeing these matters have declined to broaden the endorsement’s language to include advertising injury, and we will not imply such a change in the policy before us. See Cutaia, 476 S.W.2d at 281.

We decide PAJ’s fifth issue against it.

Conclusion

We have rejected each of PAJ’s arguments for reversing the trial court’s order. We agree with the trial court that Hanover has shown itself entitled to judgment as a matter of law. Accordingly, we conclude the trial court correctly granted Hanover’s motion for summary judgment and correctly denied PAJ’s motion. We resolve the remainder of PAJ’s issues against it and affirm the order of the trial court.

      . PAJ identifies a single case which, PAJ avers, classifies a notice provision as a covenant rather than a condition. See St. Paul Guardian Ins. Co. v. Centrum G.S. Ltd., 383 F.Supp.2d 891 (N.D.Tex., 2003). We do not read St. Paul to classify its notice provision as a covenant. However, St. Paul does appear to require prejudice in a late-notice case based, in part, on the fact that the policy "does not expressly provide that the notice requirement is a condition precedent to liability.” Id. at *8. We find no such requirement in any Texas case, and we decline to follow St. Paul on this point.