Green Tree Servicing, LLC F/K/A Conseco Finance Servicing Corp. v. Ralph D. Woods and Karen Woods , 388 S.W.3d 785 ( 2012 )

Opinion issued August 9, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00670-CV
———————————
GREEN TREE SERVICING, LLC F/K/A CONSECO FINANCE
SERVICING CORP., Appellant
V.
RALPH D. WOODS AND KAREN WOODS, Appellees
On Appeal from County Court at Law
Waller County, Texas
Trial Court Case No. C-10246
OPINION
Appellant, Green Tree Servicing, LLC f/k/a Conseco Finance Servicing
Corp., appeals from the trial court’s grant of appellees’, Ralph D. Woods and
Karen Woods, no evidence motion for summary judgment on standing, capacity,
and chain of title. In five issues, Green Tree argues the trial court erred in granting
the no-evidence motion for summary judgment because (1) standing cannot be
challenged in a no-evidence motion for summary judgment; (2) there was some
evidence that Green Tree had standing to sue; (3) there was some evidence that
Green Tree had capacity to sue; and (4) there was some evidence of the chain of
title.
We reverse and remand.
Background
On August 29, 2000, Ralph Woods executed a Manufactured Home Retail
Installment Contract with Palm Harbor Homes I LP. The same contract assigned
Palm Harbor Homes’ interest in the contract to Green Tree. Some time later—
though the evidence does not indicate when—Green Tree assigned its interest in
the Woods contract to Conseco Finance Corp. (“Conseco Finance”). What
assignments took place after that is a subject of dispute in this appeal.
There is evidence that, at some unidentified time, Conseco Finance Corp.,
Post Consummation Estate (“Conseco Finance PCE”) assigned its interest in the
contract to U.S. Bank National Association, as trustee for Manufactured Housing
Contract Senior/Subordinate Pass-Through Certificate Trust 2000-5 (“U.S. Bank
National”). In that document, Conseco Finance PCE identifies itself as “successor
in interest to Conseco Finance Corp.”
2
The record shows that, on October 1, 2000, Conseco Finance Securitizations
Corp. (“Conseco Finance Securitizations”), Conseco Finance, and U.S. Bank
National entered into a pooling agreement for servicing of certain contracts,
including the Woods contract. There is no evidence in the record of who claimed
to own the interest in the Woods contract as of October 1, 2000. The contract
identified Conseco Finance as the servicer for the contract, giving it “the sole
obligation to manage, administer, service[,] and make collections on the
Contracts.”
On June 23, 2003, the service pooling agreement was amended. The
contract involved the same parties except that Green Tree MH LLC was identified
as the “Successor Servicer,” giving it “the sole obligation to manage, administer,
service[,] and make collections on the Contracts.” As a part of its duties, Green
Tree MH LLC was authorized to “sue to enforce or collect upon Contracts, in its
own name.” By filing suit on a contract, the act of filing suit would “be deemed to
be an automatic assignment of the Contract to [Green Tree MH LLC] for purposes
of collection only.”
Concurrent with the execution of the amended service pooling agreement,
Green Tree MH LLC entered into a “subservicing agreement” with Green Tree.
The subservicing agreement authorized Green Tree “to manage, administer,
service[,] and make collections on each [contract covered by the amended service
3
pooling agreement], and shall perform or cause to be performed all contractual and
customary servicing activities of the holder of such” contract covered by the
amended service pooling agreement.
On September 2, 2010, Green Tree sent a notice to Ralph Woods, asserting
that he was in default on his obligations under the Woods contract and giving him
an opportunity to cure. Green Tree asserted that failure to cure the default would
result in acceleration of the payments owed under the contract and a suit to
repossess or foreclose on the collateral. Green Tree subsequently filed suit against
Ralph and Karen Woods on November 12, 2010, seeking to collect the amount
owed under the contract and to obtain possession of the home.
The Woods filed a verified answer, asserting, among other things, that Green
Tree is not entitled to recover in the capacity in which it sues. On March 9, 2011,
the Woods filed a no-evidence motion for summary judgment, claiming Green
Tree could not establish that (1) it had standing to sue them, (2) that it had the
capacity to sue them, and (3) there was a proper chain of title from the original
seller to Green Tree.
Green Tree filed its response, attaching evidence that it asserted established
its standing, capacity, and chain of title. The Woods did not include any evidence
in its reply. Instead, they identified what they believed to be gaps in Green Tree’s
proof of standing, capacity, and chain of title. The trial court agreed and granted
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the Woods’ no-evidence motion for summary judgment without identifying the
grounds on which it was granting summary judgment.
Green Tree filed a motion for new trial, arguing that a plea to the jurisdiction
was the proper vehicle to bring a claim challenging standing and that the proper
resolution of a plea to the jurisdiction was dismissal without prejudice. Green Tree
also argued that, viewing the evidence in the light most favorable to the non-
movant, summary judgment was inappropriate. The trial court denied Green
Tree’s motion for new trial.
Standard of Review
Because summary judgment is a question of law, we review a trial court’s
summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
After an adequate time for discovery, a party may move for no-evidence
summary judgment on the ground that no evidence exists of one or more essential
elements of a claim on which the adverse party bears the burden of proof at trial.
TEX. R. CIV. P. 166a(i); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian
Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The
burden then shifts to the nonmovant to produce evidence raising a genuine issue of
material fact on the elements specified in the motion. TEX. R. CIV. P. 166a(i);
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The trial court
5
must grant the motion unless the nonmovant presents more than a scintilla of
evidence raising a fact issue on the challenged elements. Flameout Design, 994
S.W.2d at 834; see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997) (holding “[m]ore than a scintilla of evidence exists when the
evidence supporting the finding, as a whole, rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions”).
To determine if there is a fact issue, we review the evidence in the light most
favorable to the nonmovant, crediting favorable evidence if reasonable jurors could
do so, and disregarding contrary evidence unless reasonable jurors could not. See
Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). We
indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When the
trial court’s summary judgment order does not state the basis for the trial court’s
decision, we must uphold the order if any of the theories advanced in the motion
are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216
(Tex. 2003).
Capacity
In its third issue, Green Tree argues the trial court could not have granted
summary judgment on the Woods’ defense that Green Tree lacked the capacity to
6
sue them. Before determining what evidence is relevant to establishing capacity, it
is useful to note the distinction 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 Cnty. Appraisal Dist., 925 S.W.2d 659,
661 (Tex. 1996). Capacity concerns whether a party has a personal right to come
into court, not whether it has an enforceable right or interest. Austin Nursing Ctr.,
Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (citing 6A WRIGHT, MILLER, &
KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1559, at 441).
The service pooling agreement, its amendment, and the subservicing
agreement together present more than a scintilla of evidence that Green Tree has
the capacity to bring this lawsuit. The subservicing agreement makes Green Tree
the servicer for the contracts part of the service pooling agreement. The original
service pooling agreement identifies the Woods contract as a part of the service
pooling agreement. The subservicing agreement gives Green Tree all of the
authority for servicing that was given to Green Tree MH LLC under the amended
service pooling agreement. The amended service pooling agreement gives the
servicer the right to sue to collect and enforce the Woods contract. We hold this is
7
sufficient to establish capacity. See id. at 851 & n.3 (holding whether a party has
the right to sue on behalf of another is a question of capacity).
Whether Green Tree presented sufficient evidence of a chain of title from
the original seller in the Woods contract to one of the parties to the service pooling
agreement—or whether the evidence establishes that the Woods contract remained
a part of the service pooling agreement—relates not to capacity, but to standing.
See Interstate Contracting Corp. v. City of Dallas, 135 S.W.3d 605, 618 (Tex.
2004) (holding privity of contract is matter of standing).
Accordingly, we hold that the Woods’ claim of Green Tree’s lack of
capacity could not have been a basis to support the trial court’s grant of no-
evidence summary judgment. We sustain Green Tree’s third issue.
Standing
In its first issue, Green Tree argues the trial court could not have granted
summary judgment on the claim that Green Tree lacked standing because standing
cannot be challenged in a no-evidence motion for summary judgment. We must
address, then, whether standing can be challenged in a no-evidence motion for
summary judgment and, if not, whether failure to object prior to the rendition of
the judgment waives the error. If it is error and has not been waived, we must
address harm.
8
A. Error
Standing is a component of the trial court’s subject-matter jurisdiction. Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993). As a
component of subject-matter jurisdiction, it cannot be waived, nor can it be
conferred by agreement. See id. (holding standing cannot be waived); In re
K.K.C., 292 S.W.3d 788, 790 (Tex. App.—Beaumont 2009, no pet.) (holding “[a]
party generally cannot confer or obtain standing by consent or agreement”).
Typically, a challenge to standing is raised in a plea to the jurisdiction. See
Brown v. Todd, 53 S.W.3d 297, 305 n.3 (Tex. 2001) (holding “[b]ecause standing
is a component of subject matter jurisdiction, we consider [the plaintiff’s] standing
as we would a plea to the jurisdiction”). “A plea to the jurisdiction is a dilatory
plea that seeks dismissal of a case for lack of subject matter jurisdiction.” Harris
Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
A plea to the jurisdiction may challenge the sufficiency of the facts pleaded
in a petition or it may challenge the existence of jurisdictional facts. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).
When a plea to the jurisdiction challenges the facts pleaded in a petition, the
courts must construe the pleadings liberally in favor of the plaintiff. Id. at 226. If
the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court’s jurisdiction—that is, if there is a gap in jurisdictional facts or a complete
9
absence of them—the trial court is required to afford the plaintiff an opportunity to
amend its pleadings. Id. at 226–27. If, however, the pleadings affirmatively
negate the existence of jurisdiction, the trial court may grant the plea to the
jurisdiction without allowing the plaintiff an opportunity to amend. Id. at 227.
When a plea to the jurisdiction challenges the existence of jurisdictional
facts, the trial court is required to consider relevant evidence submitted by the
parties. Id. If the evidence creates a fact issue regarding jurisdiction, the trial
court does not rule but, instead, submits the issue to the fact finder in a trial on the
merits. Id. at 228. Otherwise, the trial court rules on the motion as a matter of law.
Id.
The procedure for a plea the jurisdiction when evidence has been submitted
to the trial court mirrors the procedure for a traditional motion for summary
judgment. Id.; see also TEX. R. CIV. P. 166a(c). As a result, the Texas Supreme
Court has acknowledged that matters concerning subject-matter jurisdiction, such
as standing, can be raised in a motion for summary judgment. 1 See Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
1
The court in Bland did not distinguish between a traditional motion for summary
judgment and a no-evidence motion for summary judgment. See Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (holding absence of subject-
matter jurisdiction may be raised in plea to jurisdiction “as well as by other
procedural vehicles, such as a motion for summary judgment”). The court in
Miranda, however, drew a specific connection between pleas to the jurisdiction
and traditional motions for summary judgment. See Tex. Dep’t of Parks &
10
When a plea to the jurisdiction is granted, the case is dismissed without
prejudice unless it is established that the plaintiff is incapable of remedying the
jurisdictional defect. See Sykes, 136 S.W.3d at 639. As a result, the plaintiff is not
prevented from refiling suit once the impediment to jurisdiction is removed. Ab-
Tex Beverage Corp. v. Angelo State Univ., 96 S.W.3d 683, 686 (Tex. App.—
Austin 2003, no pet.).
The procedures and safeguards are similar when subject-matter jurisdiction
is raised for the first time on appeal. The Texas Supreme Court has recognized
that, when reviewing subject-matter jurisdiction for the first time on appeal, there
is no opportunity to cure the defect. Tex. Ass’n of Bus., 852 S.W.2d at 446.
Accordingly, the appellate court “must construe the petition in favor of the party,
and if necessary, review the entire record to determine if any evidence supports
standing.” Id.
We must decide, then, whether it is error for a trial court to dispose of a case
with prejudice based on a challenge to subject-matter jurisdiction in a no-evidence
Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (recognizing standard for
considering evidence in plea to jurisdiction mirrors standard in traditional motion
for summary judgment); see also Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d
799, 809 (Tex. App.—Fort Worth 2008, no pet.) (recognizing that standard in
Miranda is for traditional summary judgment). This appeal concerns whether it is
also permissible to bring a jurisdictional challenge in a no-evidence motion for
summary judgment.
11
motion for summary judgment. For the reasons given below, we hold that it is
error.
To begin with, allowing a challenge to subject-matter jurisdiction in a no-
evidence motion for summary judgment would have the effect of depriving a trial
court of jurisdiction over a case in circumstances in which jurisdiction has not been
affirmatively disproved. In a plea to the jurisdiction, dismissal with prejudice is
only appropriate when subject-matter jurisdiction has been affirmatively disproved
and the jurisdictional impediment cannot be removed. See Sykes, 136 S.W.3d at
639. Likewise, a traditional motion for summary judgment can only be granted
after the defendant establishes as a matter of law that the plaintiff lacks subject-
matter jurisdiction. See TEX. R. CIV. P. 166a(c). A no-evidence motion for
summary judgment, in contrast, allows the movant to obtain summary judgment
when the non-movant’s evidence is incomplete. TEX. R. CIV. P. 166a(i). This has
the effect of depriving the trial court of jurisdiction not when jurisdiction has been
disproved, but when jurisdiction is uncertain.
Additionally, in the absence of evidence disproving jurisdiction, a plea to the
jurisdiction can only be granted when the pleadings affirmatively negate
jurisdiction. Miranda, 133 S.W.3d at 227. In that circumstance, the pleadings are
reviewed liberally in favor of the plaintiff. Id. at 226. To that end, “[i]t has long
been the rule that a plaintiff’s good faith allegations are used to determine the trial
12
court’s jurisdiction.” Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502–03
(Tex. 2010). If there is a gap in jurisdictional facts, the trial court is required to
afford the plaintiff an opportunity to amend its pleadings. Miranda, 133 S.W.3d at
226–27.
In contrast, in a no-evidence motion for summary judgment, jurisdiction
would be deprived without consideration of the plaintiff’s pleadings. Judwin
Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 504 (Tex. App.—Houston [1st
Dist.] 1995, no writ) (holding pleadings cannot be used as summary judgment
evidence unless statements constitute judicial admissions, which must be adverse
to party’s claims); Springer v. Am. Zurich Ins. Co., 115 S.W.3d 582, 585–86 (Tex.
App.—Waco 2003, pet. denied) (applying rule to no-evidence motion for summary
judgment).
Furthermore, even when a plea to the jurisdiction is granted, the case is
dismissed without prejudice unless the plaintiff cannot remedy the jurisdictional
defect. See Sykes, 136 S.W.3d at 639. A no-evidence summary judgment instead
requires dismissal with prejudice.
Finally, we note that, in both a plea to the jurisdiction and a traditional
motion for summary judgment, the defendant bears the burden of proving the trial
court’s lack of jurisdiction. See Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d
546, 548 (Tex. 1985) (holding “movant for summary judgment has the burden of
13
showing that there is no genuine issue of material fact and that it is entitled to
judgment as matter of law”); Miranda, 133 S.W.3d at 228 (holding standard for
considering evidence in plea to jurisdiction mirrors that of a traditional motion for
summary judgment); Tex. Dep’t of Transp. v. Olivares, 316 S.W.3d 89, 103 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (holding, in plea to jurisdiction,
defendant must produce evidence that trial court lacks jurisdiction before plaintiff
has burden to raise fact issue).
By review of these legal principles, it appears that, if we were to allow a
party to bring a jurisdictional challenge in a no-evidence motion for summary
judgment, there would be no reason for a defendant to bring a plea to the
jurisdiction. When the evidence affirmatively negates subject-matter jurisdiction,
the challenge can be brought in a motion for summary judgment. See Bland, 34
S.W.3d at 554 (holding subject-matter jurisdiction can be raised in motion for
summary judgment); Miranda, 133 S.W.3d at 228 (holding standard for
evidentiary challenges to subject-matter jurisdiction mirror that of traditional
motion for summary judgment). When the plaintiff’s pleadings negate subject-
matter jurisdiction, this can also be raised in a traditional motion for summary
judgment. See Judwin Props., 911 S.W.2d at 504 (holding pleadings cannot be
used as summary judgment evidence unless statements are judicial admissions
adverse to party’s claims); Lazarides v. Farris, 367 S.W.3d 788, 797 (Tex. App.—
14
Houston [14th Dist.] Apr. 17, 2012, no pet.) (holding “[i]f the pleadings
affirmatively negate the existence of jurisdiction, then summary-judgment may be
granted on the jurisdictional challenge without allowing an opportunity to
amend”).
By allowing a party to challenge subject-matter jurisdiction in a no-evidence
motion for summary judgment, a party would be able to completely foreclose
consideration of the plaintiff’s pleadings in determining the trial court’s
jurisdiction when the pleadings establish jurisdiction. Given that “[i]t has long
been the rule that a plaintiff’s good faith allegations are used to determine the trial
court’s jurisdiction,” allowing subject-matter jurisdiction challenges in no-
evidence motions for summary judgment would be at odds with long-standing
Texas rules of procedure. Frost Nat’l Bank, 315 S.W.3d at 502–03. It would also
deny plaintiffs the right to amend their pleadings when they have failed to
sufficiently plead jurisdictional facts, to stand on the pleadings in the absence of
evidence negating jurisdiction, and to refile suit when a jurisdictional impediment
has been removed.
Moreover, in Miranda, the Texas Supreme Court expressed concern for
circumstances when “the determination of the subject matter jurisdiction of the
court implicates the merits of the parties’ cause of action.” 133 S.W.3d at 228. In
that circumstance, the court specifically approved treating evidentiary challenges
15
to subject-matter jurisdiction like a traditional motion for summary judgment,
citing subpart 166a(c) of the Texas Rules of Civil Procedure. Id. The court
reasoned,
By requiring the state to meet the summary judgment standard of
proof in cases like this one, we protect the plaintiffs from having to
“put on their case simply to establish jurisdiction.” Bland, 34 S.W.3d
at 554. Instead, after the state asserts and supports with evidence that
the trial court lacks subject matter jurisdiction, we simply require the
plaintiffs, when the facts underlying the merits and subject matter
jurisdiction are intertwined, to show that there is a disputed material
fact regarding the jurisdictional issue.
Id.
Allowing a defendant to challenge subject-matter jurisdiction in a no-
evidence motion for summary judgment when determination of subject-matter
jurisdiction implicates the merits of the plaintiff’s cause of action would force
plaintiffs to “put on their case simply to establish jurisdiction.” Id. This would
allow defendants an end run around the safeguards established by the Texas
Supreme Court simply by changing the designation from a traditional to a no-
evidence motion for summary judgment and eliminating any burden on the
defendant other than to identify the specific ground the defendant believes to be
lacking evidentiary support.
We acknowledge that some courts of appeals have held that a challenge to
the trial court’s subject-matter jurisdiction can be brought in a no-evidence motion
for summary judgment. See, e.g., Wolfe v. Devon Energy Prod. Co., LP, No. 10-
16
09-00223-CV, 2012 WL 851678, at *8 (Tex. App.—Waco March 14, 2012, pet.
filed); Bank of Am. v. Eisenhauer, No. 13-09-00004-CV, 2010 WL 2784031, at *6
(Tex. App.—Corpus Christi July 15, 2010, no pet.) (mem. op.); Jacobson v. SCI
Tex. Funeral Servs., Inc., No. 05-00-00686-CV, 2001 WL 225339, at *1 (Tex.
App.—Dallas March 8, 2001, no pet.) (mem. op.). Each of these cases, however,
treated the matter as if it was already established Texas law, which is not the case.
See Wolfe, 2012 WL 851678, at *8 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 583 (Tex. 2006) (analyzing no-evidence motion for summary judgment on
causation)); Eisenhauer, 2010 WL 2784031, at *6 (citing Jackson v. Fiesta Mart,
Inc., 979 S.W.2d 68, 70, 71 (Tex. App.—Austin 1998, no pet.) (analyzing element
of standard of care in premises liability claim)); Jacobson, 2001 WL 225339, at *1
(citing Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.
App.—Dallas 2000, no pet.) (analyzing multiple elements of trespass claim)); see
also TEX. R. APP. P. 47.4 (requiring designation of “memorandum opinion” when
issues are settled).
A plea to the jurisdiction sets up safeguards and presumptions that protect
the court’s jurisdiction. See Miranda, 133 S.W.3d at 226–28. Allowing a party to
challenge subject-matter jurisdiction in a no-evidence motion for summary
judgment conflicts with these safeguards, would deprive a trial court of jurisdiction
without a showing that the court actually lacks jurisdiction, and would prevent a
17
party from removing any impediments to jurisdiction and returning to court.
Accordingly, we hold that a court’s subject-matter jurisdiction cannot be
challenged in a no-evidence motion for summary judgment.
B. Waiver
After the Woods filed their no-evidence motion for summary judgment
challenging, in part, the trial court’s subject-matter jurisdiction, Green Tree filed
its response and accompanying evidence without any claim that a no-evidence
motion for summary judgment was an inappropriate vehicle to challenge subject-
matter jurisdiction. It was not until after the trial court granted the no-evidence
motion for summary judgment that Green Tree asserted in its motion for new trial
that the Woods should have brought a plea to the jurisdiction. We must consider,
then, whether our review of the matter has been waived by Green Trees’ failure to
object.
We begin by noting that subject-matter jurisdiction cannot be waived or
conferred by agreement. See Tex. Ass’n of Bus., 852 S.W.2d at 445–46; In re
K.K.C., 292 S.W.3d at 790. Additionally, when subject-matter jurisdiction is
raised for the first time on appeal, it is reviewed similarly to a plea to the
jurisdiction. See Tex. Ass’n of Bus., 852 S.W.2d at 446 (holding appellate courts
construe the pleadings in favor of plaintiff, look to plaintiff’s intent, and review
record for evidence supporting standing).
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If we were to hold that our review of the matter can be waived, we would be
holding that a defendant can restrict the scope of our review of the trial court’s
jurisdiction simply by bringing a jurisdictional challenge in a procedural vehicle
that we have already determined to be improper. That is, if jurisdiction is raised
for the first time on appeal, we can consider the allegations in the pleadings and
must construe them liberally. Id. But if a defendant improperly challenges
jurisdiction in a no-evidence motion for summary judgment and a plaintiff can
waive this by failing to object timely, this Court would be effectively precluded
from considering the plaintiff’s pleadings on appeal. See Judwin Props., 911
S.W.2d at 504 (holding pleadings cannot be used as summary judgment evidence
except for judicial admissions adverse to party’s claims). We find no justification
for placing such a restriction on a matter that we are otherwise required to review
sua sponte. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004)
(holding courts are obligated to review sua sponte issues affecting jurisdiction).
We hold that Green Tree has not waived its argument that the Woods could
not bring their challenge to the trial court’s subject-matter jurisdiction in a no-
evidence motion for summary judgment.
C. Harm
In determining the nature of an instrument, courts look to its substance, not
to the form of its title or caption. Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.—
19
Houston [1st Dist.] 2006, no pet.). Additionally, subject-matter jurisdiction can be
raised for the first time on appeal. Tex. Ass’n of Bus., 852 S.W.2d at 446. If the
trial court could have treated the Woods’ motion as a plea to the jurisdiction and
granted it, we must affirm. Stated another way, if the record establishes that the
trial court lacks jurisdiction, there is no harm.
We first look to the pleadings. Id. In its original petition, Green Tree
alleged that it “is the present servicer of the [Woods] Contract.” It also alleged that
it “has a perfected security interest in the Manufactured Home.” While these
comments do not specifically explain the privity of contract from the original seller
to Green Tree, it is sufficient to allege that the privity does exist. See id. (requiring
appellate courts to construe pleadings in light most favorable to plaintiff and to
look to plaintiff’s intent).
Next we consider whether the evidence affirmatively establishes that Green
Tree lacks standing. See Sykes, 136 S.W.3d at 639 (allowing dismissal with
prejudice only when evidence shows plaintiff is incapable of remedying
jurisdictional defect). We first note that the Woods never presented any evidence
of their own regarding Green Tree’s standing. Instead, they argued that there was
an evidentiary gap in establishing privity of contract because Green Tree failed to
include in its response to the motion for summary judgment any evidence of an
20
assignment or chain of assignments from Conseco Finance to Conseco Finance
PCE.2
We additionally note that two of the parties to the service pooling agreement
were, at different times, owners of the assignment from the original seller of the
Woods contract. The record does not indicate who was the owner of the
assignment at the time the Woods contract was placed into the service pooling
agreement. If it was the former, Conseco Finance, the evidence also shows that
Conseco Finance then assigned the Woods contract to a party that was not a part of
the service pooling agreement, and there is no indication that the third party agreed
to abide by the service pooling agreement or that U.S. Bank National agreed to
place the Woods contract back into the service pooling agreement. If that is the
case, the evidence would show that Green Tree lacks standing.
But we do not know if that is the case. It is also possible that U.S. Bank
National was the owner when the service pooling agreement was created. If that is
the case and assuming without deciding that the document identifying Conseco
Finance PCE as the successor in interest to Conseco Finance is sufficient to
establish the chain of title, then Green Tree has standing, because there is no
indication that U.S. Bank National is no longer the owner of the assignment or that
2
In one of the documents, however, Conseco Finance PCE identifies itself as the
successor in interest to Conseco Finance.
21
U.S. Bank National ever removed the Woods contract from the service pooling
agreement.
There is no evidence or evidentiary inference that would indicate which of
these possible scenarios is true. Accordingly, we hold that the evidence does not
affirmatively show that the trial court lacked subject-matter jurisdiction over Green
Tree’s claims, and we hold that the error in dismissing Green Tree’s claims is
harmful. See TEX. R. APP. P. 44.1(a) (prohibiting appellate courts from reversing
trial court unless error either probably caused rendition of improper judgment or
probably prevented appellant from properly presenting case to appellate court).
We hold that the Woods’ claim of Green Tree’s lack of standing could not
have been a basis to support the trial court’s grant of no-evidence summary
judgment. We sustain Green Tree’s first issue.3
3
Green Tree’s fourth issue challenges the Woods’ third basis presented in its no-
evidence motion for summary judgment: that there was no evidence of a proper
chain of title from the original seller to Green Tree. This was not an essential
element for any of Green Tree’s claims. Instead, the Woods’ only focus on the
chain of title concerned whether Green Tree had standing to assert its claims.
Green Tree’s second issue concerns whether it sufficiently established that the trial
court had jurisdiction. For the reasons given above, we hold that it has not, and
we overrule Green Tree’s second and fourth issues. Finally, in its fifth issue,
Green Tree essentially argues that the trial court failed to view the evidence in the
light most favorable to it. Given that this argument could not result in greater
relief than what has been awarded, we do not need to reach this issue. See TEX. R.
APP. P. 47.1.
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Conclusion
We reverse the judgment of the trial court and remand for further
proceedings.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
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