JAMES M. CLIFTON, I, INC. AND JAMES M. CLIFTON, INDIVIDUALLY, Appellants v. PREMILLENIUM, LTD., A TEXAS LIMITED LIABILITY PARTNERSHIP, Appellee

Affirm in part; Reverse and Render in part ;Opinion Filed May 26, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01528-CV
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JAMES M. CLIFTON, I, INC. AND JAMES M. CLIFTON, INDIVIDUALLY, Appellants
V.
PREMILLENIUM, LTD., A TEXAS LIMITED LIABILITY PARTNERSHIP, Appellee
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On Appeal from the 68th Judicial District
Dallas County, Texas
Trial Court Cause No. 05-04111-C
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MEMORANDUM OPINION
Before Justices Morris, Moseley, and Lang
Opinion By Justice Lang
        Following a non jury trial on stipulated facts, James M. Clifton I, Inc and James M. Clifton, Individually appealed the trial court's judgment in favor of L of EP, Ltd. in a suit for breach of settlement agreement. In four issues, appellants argue the trial court erred because (1) the trial court did not have subject matter jurisdiction (2) the plaintiffs' claims were barred by the statute of limitations and (3) the evidence is factually and/or legally insufficient to support the award of the attorneys fees. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a). For the reasons set forth below, we reverse the trial court's judgment.
 
 
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        On March 24, 2002, Clifton Inc. and Clifton Individually (collectively, “Clifton”) entered into a “Compromise Settlement Agreement and Release” with two entities: Premillenium Ltd., and L of EP, Ltd. On August 23, 2003, pursuant to the Agreement, an accounting firm issued a report in which it determined the amount due under the Agreement. Specifically, the report stated, “the Clifton entities should reimburse total costs of $69,122.79. In accordance with the terms of the Settlement Agreement, this amount should be paid within 3 days.”
        On April 27, 2005, Premillenium brought suit against Clifton for breach of the settlement agreement, contending that the defendants failed to pay the amount due. A general denial was filed for the defendants. Thereafter, on January 20, 2006, Premillenium moved for summary judgment. On March 13, 2006, the trial court granted summary judgment, and Clifton appealed to this Court. On July 31, 2007, this Court reversed and remanded, concluding that Premillenium did not meet its summary judgment burden to establish that it had a legal right to recover.
        On February 1, 2008, Premillenium filed an amended petition in which it added L of EP as a plaintiff. On May 28, 2008, the defendants filed a “Second Amended Original Answer,” in which they asserted, inter alia, “the suit was barred by the statute of limitations.” Then, the parties agreed to try the case on stipulated facts on the issue of whether the statute of limitations had run. Based on the stipulated facts, the trial court rendered a judgment in favor of L of EP for $69,112.79 and attorneys fees in the amount of $28,800.00. A take nothing judgment was rendered on Premillenium's claim against Clifton. Clifton filed a timely notice of appeal.
II. STANDING
 
        In its first issue, Clifton argues that the trial court erred in rendering judgment in favor of L of EP because Premillenium was not entitled to recover under the contract sued upon, and consequently lacked standing to initiate the suit.
A. Standard of Review and Applicable Law
 
        Whether a trial court has subject matter jurisdiction is a matter of law. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Accordingly, an appellate court reviews a challenge to the trial court's subject matter jurisdiction de novo. See Miranda, 133 S.W.3d at 228. In performing this review, an appellate court does not look to the merits of the case, but considers only the pleadings and evidence relevant to the jurisdictional inquiry. See Miranda, 133 S.W.3d at 227; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).To have standing to bring suit for breach of contract, the plaintiff must either be in privity of contract with the defendant or a third party beneficiary. Allan v. Nersesova, 307 S.W.3d 564, 567 (Tex. App.-Dallas 2010, no pet) (citing O.A.I.C. Commercial Assets L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 738 (Tex. App.-Dallas 2007, pet. denied)). The determination of whether a plaintiff possesses standing to assert a particular claim depends on the facts pleaded and the cause of action asserted.” Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 853 (Tex. App.-Fort Worth 2005, no pet.); see M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707-08 (Tex. 2001) (analyzing standing in the context of asserted claim).
B. Application of Law to Facts
 
        Clifton contends that the trial court erred in entering judgment in favor of L of EP because Premillenium was not entitled to recover under the contract sued upon, and consequently lacked standing to initiate the suit. In support of its argument, Clifton cites us to Clifton v. Premillenium, 229 S.W.3d 857, 859 (Tex. App.-Dallas 2007, no pet.), our earlier review of this case, in which this court concluded that Premillenium was not entitled to summary judgment. However, that decision is not determinative. See Premillenium, 229 S.W.3d at 859. In Premillenium, we concluded only that Premillenium did not meet its summary judgment burden because “the summary judgment record fails to establish that Clifton owes the determined amount to Premillenium.” Id.
        Entitlement to recover under a contract “does not affect jurisdiction of the court; it is instead a decision on the merits.” Heartland Holdings Inc. v. U.S. Trust Co. of Tex., -S.W.3d-, 2010 WL 1373790, at *3 (citing to Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225 S.W.3d 894, 898 (Tex. App.-Houston [14th Dist.] 2007, no pet.)). To determine whether a plaintiff has standing, we consider the facts pleaded and the cause of action asserted. See M.D. Anderson Cancer Ctr., 52 S.W.3d at 707-08. Premillenium brought suit against Clifton for a breach of contract. As party to the Settlement Agreement between L of EP and the Clifton entities, Premillenium was in privity of contract with Clifton. See O.A.I.C., 234 S.W.3d at 738. Consequently, we conclude that Premillenium had standing to bring suit against Clifton. See id.; see also Daimler Chrysler Corp. v. Inman, 252 S.W.3d 299, 305 (Tex. 2008). We decide Clifton's first issue against it.
III. STATUTE OF LIMITATIONS
 
        In the second issue, Clifton argues the trial court erred in granting judgment in favor of L or EP because “the plaintiffs claims were barred the statute of limitations.” Premillenium responds the statute of limitation was tolled because the amended petition which added L of EP as a plaintiff “related back” to the original petition.
A. Standard of Review
 
        The standard of review in a case tried on agreed stipulated facts is de novo. See Panther Creek Ventures, Ltd. v. Collin Cent. Appraisal Dist., 234 S.W.3d 809, 811 (Tex. App.-Dallas 2007, pet denied); Alma Group L.L.C. v. Palmer, 143 S.W.3d 840, 843 (Tex.App.-Corpus Christi 2004, pet. denied). The agreed stipulations are binding on the parties, the trial court, and the reviewing court. Panther, 234 S.W.3d at 811. We presume conclusively that the parties have brought before the court all facts necessary for the presentation and adjudication of the case. Cummins & Walker Oil Co. v. Smith, 814 S.W.2d 884, 886 (Tex.App.-San Antonio 1991, no writ). We do not review the legal or factual sufficiency of the evidence, but simply review the trial court's order to determine if it correctly applied the law to the agreed stipulated facts. See Palmer, 143 S.W.3d at 843.
B. Applicable Law
 
        As a general rule, the statute of limitations for a breach of contract action is four years from the day the cause of action accrues. Tex. Civ. Prac. & Rem.Code Ann. § 16.004 (Vernon 2002); Via Net v. TIG Ins. Co., 211 S.W.3d 310, 315 (Tex.2006). A breach of contract claim accrues when the contract is breached. Barker v. Eckman, 213 S.W.3d 306, 311 (Tex.2006); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). A breach of contract occurs when a party fails or refuses to do something he has promised to do. Mays v. Pierce, 203 S.W.3d 564, 575 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).
        The statute of limitations may be tolled under certain circumstances. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990). Specifically, in cases of “misnomer,” that is the plaintiff “merely” misnames itself or the correct defendant, limitations is tolled and the subsequent amendment of the petition relates back to the date of the original petition. Id. See Pierson v. SMS Financial II, LLC, 959 S.W.2d 343, 347 (Tex. App.-Texarkana 1998, no pet.) (concluding that plaintiff misnaming itself as SMS I instead of SMS II was a “misnomer” and tolled the statute of limitations). However, in cases of “misidentification,” the statute of limitations is not tolled. See Enserch, 794 S.W.2d at 4 (citing Womack Machine Supply Co. v. Fannin Bank, 499 S.W.2d 917, 919 (Tex.Civ.App.-Houston [14th Dist.] 1973), rev'd on other grounds, 504 S.W.2d 827 (Tex.1974)). A misidentification occurs when the plaintiff is mistaken as to which party is the correct party, and there exists an entity with the name of the erroneously named party. Id.
C. Application of Law to Facts
 
        Clifton contends the trial court erred in granting final judgment in favor of L of EP because the suit was barred by the statute of limitations. Specifically, Clifton argues the May 28, 2008 Amended Petition, which named L of EP in addition to Premillenium, was filed four years after the Settlement Agreement was breached. Premillenium does not contest that the Amended Petition was filed after the four year limitations. Rather, Premillenium responds that the four year limitations was tolled because the Amended Petition “related back” the Original Petition. Premillenium cites “misnomer” cases and states, the plaintiff “misnamed itself and corrected the mistake after the limitations ran.” See Pierson, 959 S.W.2d at 347; see also Foust v. Estate of Walters, 21 S.W.3d 495, 500 (Tex. App.-San Antonio 2000, pet. denied) Further, Premillenium argues that even assuming that a “misidentification” occurred, the statute of limitations was tolled because “appellants were in [no] way misled or disadvantaged by the filing of the Amended Petition” and “the claims asserted in the Amended Petition are exactly the same as the claims asserted in the Original Petition.” See Pierson, 959 S.W.2d at 347.
        We conclude this is not a case of misnomer because Premillenium did not merely misname itself. Id. Rather, the record shows Premillenium and L of EP are two separate entities, and L of EP had an interest in the suit, but was not named in the original pleadings. See Enserch, 794 S.W.2d at 4. Moreover, the record shows that L of EP had its own distinct claims for recovery under the Agreement. See Clifton, 229 S.W.3d at 859. When a new party plaintiff asserts claims on its own behalf, its claims will be time barred if the statute of limitations has run. See Estate of Magness by and through Magness v. Hauser, 918 S.W.2d 5, 9 (Tex.App.-Houston [1st Dist.] 1995, writ ref'd); Bradley v. Etessam, 703 S.W.2d 237, 242 (Tex.App.-Dallas 1985, writ ref'd n.r.e.). Therefore, L of EP's claims were time barred. We decide in favor of Clifton on the second issue. We need not address Appellants' issues three and four.
IV. CONCLUSION
 
        We conclude the trial court erred in granting judgment in favor of L of EP because the suit was barred by the statute of limitations. The trial court's judgment is reversed in part and affirmed in part. Specifically, we render a take nothing judgment on Lof EP's claims against Clifton and affirm the take nothing judgment on Premillenium's claims against Clifton.
 
                                        
 
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                                                          DOUGLAS S. LANG
                                                          
                                                          JUSTICE
 
 
081528F.P05