law-capacity
CAPACITY
The failure to raise the issue of capacity through a verified plea results in waiver of that issue both at trial
and on appeal. TEX. R. CIV. P. 93; see Pledger v. Schoellkopf, 762 S.W.2d 145, 145-46 (Tex. 1988);
Spurgeon v. Coan & Elliott, 180 S.W.3d 593, 597 (Tex. App.-Eastland 2005, no pet.); Champion v. Wright,
740 S.W.2d 848, 851 (Tex. App.-San Antonio 1987, writ denied). Because Rutledge did not file a verified
pleading challenging Leonard or LLF's capacity to sue, she has waived these complaints. See, e.g.,
Spurgeon, 180 S.W.3d at 597-98; Stephenson v. Lynch, No. 05-99-01874-CV, 2001 WL 126403, at *2-3
(Tex. App.-Dallas Feb. 15, 2001, pet. denied).
The Texas Supreme Court has explained the difference between standing and capacity:
A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority;
a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest
in the controversy. Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996).
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