Non-Liability In the Capacity Which Was Sued Cases

In Allright, Inc. v. Burgard, 666 S.W.2d 515, 517 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.), the court overruled a contention that there was no evidence that the corporation operated the parking garage in question or employed the attendant because the appellant had not filed a verified pleading setting forth a defect of parties or that it was not liable in the capacity in which it was sued. Moreover, in W.O.S. Const. Co., Inc. v. Hanyard, 684 S.W.2d 675, 676 (Tex. 1985), the Court held that because a verified plea was not filed contending that Hanyard was not liable in the capacity in which he was sued, Hanyard could properly be held liable in either his individual or corporate capacity. Later, in Werner v. Colwell, 909 S.W.2d 866, 870 (Tex. 1995), the Court held the failure to verify a plea as to capacity operates as a waiver of any complaint of a judgment rendered in the capacity in which the party was sued. In addition, because the issues of capacity, defect in parties, and liability upon the written contract in the capacity sued were not raised in the trial court, they cannot be considered for the first time on appeal. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993).