Clemente D. Grant v. Raymundo Espiritu and David Barnes , 470 S.W.3d 198 ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CLEMENTE D. GRANT, §
No. 08-13-00247-CV
Appellant, §
Appeal from the
v. §
County Court at Law Number One
RAYMUNDO ESPIRITU AND DAVID §
BARNES, of Tarrant County, Texas
§
Appellees. (TC# 2011-004353-1)
§
OPINION
Following a traffic accident, Clemente D. Grant sued both Raymundo Espiritu and David
Barnes for the resulting property damage to “his” vehicle, and sued Espiritu for conversion of the
vehicle. Grant appeals the trial court’s dismissal of his case for want of jurisdiction due to a lack
of standing. We affirm.1
BACKGROUND
Grant alleged he was involved in a traffic accident in which the Hyundai Elantra he was
driving was struck by two other vehicles driven respectively by Espiritu and Barnes. Grant
sought property damages for the total loss of the vehicle arising from Espiritu and Barnes’s
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This case was transferred from the Second Court of Appeals in Fort Worth, and we decide it in accordance with the
precedent of that court to the extent required by TEX. R. APP. P. 41.3.
negligence, and property damages from Espiritu’s conversion of the vehicle.2
Five days before trial, Espiritu filed a motion to dismiss Grant’s case for lack of
jurisdiction in part because Grant had no “capacity” to bring his claims because he was not the
registered owner of the Hyundai. In support of his motion, Espiritu attached a Texas Salvage
Vehicle Title that identified Jeff S. Scott, Jr. as the owner of the vehicle. On the day of trial,
Barnes filed a motion to dismiss for lack of jurisdiction contending that Grant lacked standing
because he did not own the vehicle, and that the only person with standing to sue was Grant’s
father, Jeff Scott, in whose name the Hyundai was titled. Attached to Barnes’s motion was a copy
of the accident report listing Grant as the driver of the vehicle and Jeff Scott as the owner.
The trial court considered both motions to dismiss immediately before the start of the trial.
Grant did not file a response to the motions to dismiss, but his counsel explained to the trial court
that Jeff Scott had given the vehicle to Grant as a gift and had registered the vehicle under Scott’s
own name for insurance discount purposes.
The trial court twice suspended the pre-trial proceedings, in part to consider cases cited by
counsel. After the second break, the trial court suggested the parties consider taking “one last
stab” at settlement, but gave the parties the option that “I can go on and rule on [the motions to
dismiss] or you guys can take one last shot.” Counsel for Grant, as well as counsel for both
defendants, expressly informed the trial court they wanted the court to proceed to rule on the
motions to dismiss. The trial court granted both motions to dismiss, declaring that Grant had no
“status” to bring claims against Espiritu and Barnes because title to the vehicle was not in his
name. At no time did Grant request a continuance or otherwise inform the trial court that he
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Grant also made claims for bodily injury, but those claims were settled before trial.
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desired to present evidence in response to the motions to dismiss.
Four days after the trial court’s ruling in open court, Grant filed a written response to the
motions to dismiss and attached a copy of an insurance document addressed to Jeff Scott, showing
coverage for the Hyundai and three other vehicles.3 Also attached was Jeff Scott’s affidavit. In
his affidavit, Scott states that he had purchased the Hyundai Elantra for Grant in August 2000 and
explained that all of the family’s cars are titled in his name to benefit from multiple-vehicle
insurance discounts. According to Scott, the Hyundai had always been Grant’s car, Grant had
paid Scott for his portion of the insurance for the vehicle, and Grant was responsible for
maintenance and repair of the vehicle.
Four days later, the trial court signed the order granting the motions to dismiss for lack of
jurisdiction, and dismissed Grant’s claims with prejudice. The order indicates that in making its
ruling, the trial court considered only “the two Motions to Dismiss and the arguments of all
counsel[.]”
DISCUSSION
In a single issue, Grant contends the trial court erred in dismissing his case for want of
jurisdiction based on lack of standing. We disagree.
Standard of Review
A plea to the jurisdiction challenges the court’s authority to decide a case. Heckman v.
Williamson Cnty., 369 S.W.3d 137, 149 (Tex. 2012); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 553–54 (Tex. 2000). Here, the defendants challenge the plaintiff’s standing. This is a
question of law we review de novo. Heckman, 369 S.W.3d at 150; Tex. Dep't of Transp. v. City of
Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004).
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The record on appeal does not show that Appellant brought his response to the trial court’s attention.
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The burden is on the plaintiff to affirmatively demonstrate the trial court’s jurisdiction.
Heckman, 369 S.W.3d at 150; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). When assessing a plea to the jurisdiction, our analysis begins with the live
pleadings. Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 226. We may also consider
evidence submitted to negate the existence of jurisdiction – and we must consider such evidence
when necessary to resolve the jurisdictional issue. Heckman, 369 S.W.3d at 150; Bland, 34
S.W.3d at 555. We construe the plaintiff’s pleadings liberally, taking all factual assertions as
true, and look to the plaintiff’s intent. Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at
226.
We must grant the plea to the jurisdiction if the plaintiff’s pleadings affirmatively negate
the existence of jurisdiction. Heckman, 369 S.W.3d at 150; Miranda, 133 S.W.3d at 227. And,
we must grant the plea if the defendant presents undisputed evidence that negates the existence of
the court’s jurisdiction. Heckman, 369 S.W.3d at 150; see Miranda, 133 S.W.3d at 226.
Standing
Standing is a constitutional prerequisite to suit. Heckman, 369 S.W.3d at 150; see Sw.
Bell Tel. Co. v. Mktg. on Hold Inc., 308 S.W.3d 909, 915 (Tex. 2010). A court has no jurisdiction
over a claim made by a plaintiff who lacks standing to assert it. Heckman, 369 S.W.3d at 150;
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008). Thus, if a plaintiff lacks
standing to assert one of his claims, the court lacks jurisdiction over that claim and must dismiss it.
Heckman, 369 S.W.3d at 150; see Andrade v. NAACP of Austin, 345 S.W.3d 1, 14 (Tex. 2011)
(“[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of
relief that is sought.”) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734, 128 S. Ct. 2759,
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171 L. Ed. 2d 737 (2008)). Similarly, if the plaintiff lacks standing to bring any of his claims, the
court must dismiss the whole action for want of jurisdiction. Heckman, 369 S.W.3d at 150-51;
see Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 392 (Tex. 2000) (holding that plaintiff had
standing on some claims but not others, and dismissing only those claims for which it lacked
standing).
In Texas, the standing doctrine requires a concrete injury to the plaintiff. Heckman, 369
S.W.3d at 154; DaimlerChrysler Corp., 252 S.W.3d at 304, 307; see Neeley v. W. Orange–Cove
Consol. Indep. Sch. Dist., 176 S.W.3d 746, 774 (Tex. 2005) (standing limits jurisdiction to cases
involving a distinct injury to the plaintiff); Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001)
(same). Under Texas law, the standing inquiry begins with the plaintiff’s alleged injury.
Heckman, 369 S.W.3d at 155. The plaintiff must be personally injured – he must plead facts
demonstrating that he, himself, rather than a third party, suffered the injury. Id. “After all, our
Constitution opens the courthouse doors only to those who have or are suffering an injury.” Id.;
see Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). The standing
inquiry “requires careful judicial examination of a complaint’s allegations to ascertain whether the
particular plaintiff is entitled to an adjudication of the particular claims asserted.” Heckman, 369
S.W.3d at 156 (quoting Allen v. Wright, 468 U.S. 737, 752, 104 S. Ct. 3315, 82 L. Ed. 2d 556
(1984)).
Analysis
We begin with Grant’s pleadings. Grant alleged that he was driving “his Hyundai
Elantra” when Espiritu lost control of his vehicle and collided “with Plaintiff’s Hyundai,” and then
Barnes “slammed into the back of Plaintiff’s Hyundai Elantra,” and as a result “Plaintiff suffered
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extensive property damage for which he seeks compensation.” Grant sought damages for the
total loss and loss of use “of Plaintiff’s vehicle.” Grant further alleged that he “was shocked to
discover that his vehicle, which had been taken by Defendant Espiritu’s agents and representatives
to a storage facility, had been sold without Plaintiff’s knowledge and without compensation paid to
Plaintiff,” and sought “damages for the conversion of his vehicle by the agents and representatives
of Defendant Espiritu.” Construing these pleadings liberally and taking all factual assertions as
true, we conclude that Grant’s pleadings were sufficient to show that Grant had suffered a concrete
injury in the form of damage to “his” vehicle and its subsequent disappearance, and that he has a
sufficient relationship with the lawsuit to have a justiciable claim.
The evidence presented to and considered by the trial court, however, tells another story.
The salvage title showed the Hyundai was owned by Jeff Scott, not Grant. The police accident
report, too, identifies Jeff Scott as owner of the Hyundai. Although the name on a certificate of
title is not conclusive of ownership, evidence of the name in which an automobile is registered
raises a presumption of ownership. Vibbert v. PAR, Inc., 224 S.W.3d 317, 321 (Tex.App. – El
Paso 2006, no pet.) (citations omitted). That presumption vanishes only when positive evidence
to the contrary is introduced. Id. at 321. And, here Grant failed to present any evidence to the
contrary.
The trial court heard argument from Grant’s counsel that Jeff Scott had gifted the vehicle to
Grant but had kept title to the vehicle in his own name to benefit from reduced insurance expenses.
But, argument of counsel is not evidence. Texas Dep’t of Pub. Safety v. Mendoza, 952 S.W.2d
560, 564 (Tex.App. – San Antonio 1997, no writ) (“argument of counsel is not evidence”); see also
Texas Dep’t of Pub. Safety v. Wiggins, 688 S.W.2d 227, 230 (Tex.App. – El Paso 1985, no writ)
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(“Unsworn statements and arguments made by Petitioner’s attorney are not evidence.”). Further,
despite having informed the trial court that Scott would be called at trial as a witness, Grant’s
counsel encouraged the trial court to rule on the motions to dismiss without seeking a continuance
for the purpose of presenting positive evidence to rebut the presumption of ownership in Scott.
We recognize that the procedure utilized in addressing a plea to the jurisdiction or motion
to dismiss for lack of subject matter jurisdiction generally mirrors that of a summary judgment
under Texas Rule of Civil Procedure 166a(c). See Miranda, 133 S.W.3d at 228. And, we
recognize that even in summary judgment proceedings, where the rules provide for strict deadlines
in filing responses and supporting evidence, Rule 166a(c) allows a judge to admit late-filed
evidence upon “leave of court.” In those cases, however, we have held that when a trial court
does not expressly grant leave to file supplemental pleadings or evidence, and there is “no
affirmative evidence in the record” to indicate that the trial court intended to grant such leave, we
must “presume that the trial court did not consider the response, and therefore, we cannot consider
it on appeal.” E.B.S. Enter., Inc. v. City of El Paso, 347 S.W.3d 404, 407-08 (Tex.App. – El Paso
2011, pet. denied); see also INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985) (court would
not consider late-filed response to summary judgment motion where “nothing appears of record to
indicate that the late filing was with leave of court”). Here, there is no affirmative evidence in the
record that the trial court intended to grant leave to consider Grant’s late-filed response. In fact,
the record affirmatively shows the trial court did not consider Grant’s response. The trial court’s
order granting the motions to dismiss, which was signed four days after Grant filed his
post-hearing response, states that in making its ruling, the trial court considered only “the two
Motions to Dismiss and the arguments of all counsel[.]”
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Accordingly, the only evidence before the trial court showed that Scott retained title to the
vehicle and insured the vehicle in his own name. This was significant, undisputed evidence that
Scott, not Grant, was the owner of the Hyundai vehicle that formed the basis of all the property
damage claims raised by Grant. As title owner of the vehicle and named insured on the insurance
coverage policy, Scott was the only person with a justiciable interest in the property damage
claims raised in Grant’s pleadings. “[A]s a general rule, only those persons may be parties to a
suit who have a direct interest therein and for or against whom judgment may be rendered. In the
absence of this interest, no person can recover in his own right by alleging a cause of action in
another.” Sims v. Citizens State Bank, 410 S.W.2d 270, 271-72 (Tex.Civ.App. – San Antonio
1966, no writ) (internal citations omitted).
Once the defendants raised the presumption that Grant did not own the vehicle, Grant had
the burden to produce some evidence in response showing he had some ownership or possessory
interest in the vehicle sufficient to maintain his lawsuit. Grant, however, failed to present any
evidence to show that he held any interest in the vehicle that would entitle him personally to
recover for damages to the vehicle or for the loss of or loss of use of the vehicle. Grant thus failed
to show a justiciable interest in his asserted claims for property damage, loss of use, or conversion
of the vehicle. Consequently, the trial court did not err in concluding that Grant lacked standing
and that it was without subject matter jurisdiction. Because the trial court correctly dismissed the
case for want of jurisdiction, we overrule Grant’s sole issue on appeal.
CONCLUSION
The trial court’s judgment is affirmed.
STEVEN L. HUGHES, Justice
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July 22, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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