Opinion issued February 2, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00392-CV
———————————
Michael Johnson, Appellant
V.
Lisa Coppel, independent administrator of the Estate of Joan J. Counts, deceased, Appellee
On Appeal from the Probate Court No. 3
Harris County, Texas
Trial Court Case No. 362,660-402
DISSENTING MEMORANDUM OPINION
I respectfully dissent. This is a suit brought by appellant, Michael Johnson, (1) to quiet title to a condominium in a complex at 12633 Memorial Drive in Houston, Texas; (2) to set aside the 1997 deed of trust executed by the legal title holder of the property, Michael’s brother, Calhoun Johnson, in favor of Joan J. Counts, whose estate is the defendant in this suit; and (3) to set aside the foreclosure deed obtained by Counts at the foreclosure sale of the property following Calhoun Johnson’s default on the note secured by the property. Michael’s holding equitable title to the property is the basis for his having standing to bring each of his claims. I would hold that Michael has failed to prove that he has equitable title. Accordingly, I would hold that he lacks standing to assert his claims, and I would dismiss Michael’s claims against appellee, Lisa Coppel, Independent Administrator of the Estate of Joan J. Counts, Deceased.
When, as here, a party has moved for no-evidence summary judgment on the ground that no evidence exists for one or more essential elements of a claim on which the adverse party bears the burden of proof at trial, the burden is on 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 must grant the motion unless the nonmovant presents more than a scintilla of evidence raising a fact issue on each of the challenged elements. 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.). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Moron v. Heredia, 133 S.W.3d 668, 671 (Tex. App.—Corpus Christi 2003, no pet.). Evidence that is “so weak as to do no more than create a mere surmise or suspicion” of a fact is legally insufficient and constitutes no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); Moron, 133 S.W.3d at 671.
The contention that a party lacks standing to assert a claim is not, however, a contention that the party cannot prove the merits of his claim. It is a contention that the trial court lacked jurisdiction to consider the merits of the claim and the suit should have been dismissed.
“Standing is implicit in the concept of subject matter jurisdiction,” which is never presumed, cannot be waived, and may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex. 1993); Scarbrough v. Metropolitan Transit Auth. of Harris Cnty., 326 S.W.3d 324, 331 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Whether the trial court has subject matter jurisdiction is a question of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Scarbrough, 326 S.W.3d at 331. Because standing is a component of subject matter jurisdiction, courts consider standing under the same standard by which they review subject matter jurisdiction generally. Tex. Ass’n of Bus., 852 S.W.2d at 446. “That standard requires the pleader to allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Id.; Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967). Standing focuses on who may bring an action. See M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). As a general matter, unless standing is conferred by a statute, a plaintiff must demonstrate that he possesses an interest in the controversy distinct from the general public such that the defendant’s actions have caused him some particular injury. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2000). Without a breach of a legal right belonging to himself, a plaintiff has no standing to litigate. See Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976); Robinson v. Neeley, 192 S.W.3d 904, 907 (Tex. App.—Dallas 2006, no pet.).
When jurisdictional facts are challenged, as here, the courts consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Scarbrough, 326 S.W.2d at 331. As with a summary judgment, the court takes as true all evidence favorable to the nonmovant and indulges every reasonable inference and resolves any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228; Scarbrough, 326 S.W.3d at 331. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the court rules on the jurisdictional issue as a matter of law. Miranda, 133 S.W.3d at 228; Scarbrough, 326 S.W.3d at 331.
Here, the trial court did not dismiss Michael’s claims for lack of standing but, instead, entered summary judgment against him on Coppel’s no-evidence motion. When an appellate court is not reviewing a trial court’s order of dismissal for want of jurisdiction, but jurisdiction is considered on appeal for the first time, the reviewing court “must construe the petition in favor of the party, and if necessary, review the entire record to determine if any evidence supports standing,” just as the trial court would have had to do if jurisdiction had been challenged and ruled on in the trial court. Tex. Ass’n of Bus., 852 S.W.2d at 446; see Miranda, 133 S.W.3d at 227 (stating, “if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do”); see also Bland, 34 S.W.3d at 555 (confining evidentiary review to evidence relevant to jurisdictional issue).
As the majority acknowledges, “[i]f Michael cannot establish that he has some claim to title on the property, then Michael lacks standing to bring his other claims.” Slip Op. at 7–8 (citing Bell v. Ott, 606 S.W.2d 942, 952 (Tex. Civ. App.—Waco 1980, writ ref’d n.r.e.) and Hollar v. Jowers, 310 S.W.2d 721, 724 (Tex. Civ. App.—Eastland 1958, writ ref’d n.r.e.)). To avoid judgment as a matter of law and establish his standing to pursue his claims in this litigation, therefore, Michael must have produced sufficient evidence to raise a fact question as to whether he has “some claim to title on the property.” See Miranda, 133 S.W.3d at 228; Scarbrough, 326 S.W.3d at 331. The only claim Michael asserts that might give him standing is a claim of equitable title. Therefore, Michael has to have produced adequate evidence of equitable title to raise a fact question as to whether he does, in fact, have such title and therefore has the right to assert his claims.
“‘Equitable title’ is a right, enforceable in equity, to have the legal title to real estate transferred to the owner of the right upon the performance of specified conditions.” City of Houston v. Guthrie, 332 S.W.3d 578, 588 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); accord Neeley v. Intercity Mgmt. Corp., 623 S.W.2d 942, 950–51 (Tex. App.—Houston [1st Dist.] 1981, no writ) (defining “equitable title” as enforceable right to have legal title transferred to holder of equity); Pickle v. Whitaker, 224 S.W.2d 741, 745 (Tex. Civ. App.—El Paso 1949, writ ref’d) (defining equitable title as “the present right to the legal title”).
The only evidence Michael points to in the record in support of his alleged equitable title interest in the property is a Special Warranty Deed filed December 27, 1985 in the public records of Harris County, Texas, conveying the property to Calhoun, and his own deposition testimony. The deposition testimony states only that Michael, who has not worked since 1991, was working as a lawyer in 1985 and gave his brother, Calhoun, the money to buy the unit, and “[h]e purchased it, and he put it in his name.” Michael testified, “Eventually I was going to get it out of his name, but it never came to pass.” Michael was unable to state with certainty in his deposition how much Calhoun paid for the condo, stating only, “I believe we paid 18,000 for it.” He also did not know where the transaction closed, or where it was finalized, or where he got the money, other than, “It’s money I had, working” as a lawyer. He could recall nothing else about the transaction relevant to his claim of ownership.
I would hold that Michael’s evidence is no evidence that he ever had a right enforceable in equity to have the legal title to the property transferred to himself upon the performance of specific conditions. See Guthrie, 332 S.W.3d at 588. Thus, I would hold that Michael’s evidence that he holds, or has ever held, equitable title to the property is “so weak as to do no more than create a mere surmise or suspicion” that he ever held equitable title to the property and is, therefore, legally insufficient and constitutes no evidence. See Kindred, 650 S.W.2d at 63; Moron, 133 S.W.3d at 671. Accordingly, Michael has failed to establish that he has standing to assert his claims. See Williams, 52 S.W.3d at 178; see also Guthrie, 332 S.W.3d at 588 (holding that plaintiff lessees had not alleged that they had right to have legal title of real property upon which their businesses were located transferred to them; therefore, they had not shown that their leasehold interests in property constituted “equitable title”; accordingly, they lacked standing to assert their claims and claims were properly dismissed).
I would render judgment dismissing Michael’s claims for lack of subject matter jurisdiction. See Tex. Ass’n of Bus., 852 S.W.2d at 446.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Keyes, J., dissenting.