Deisy Umana v. Jose O. Rodriguez-Ramos ( 2021 )


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  • Affirmed and Opinion Filed June 21, 2021
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-20-00238-CV
    DEISY UMANA, Appellant
    V.
    JOSE O. RODRIGUEZ-RAMOS, Appellee
    On Appeal from the 301st Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DF-19-05828
    MEMORANDUM OPINION
    Before Justices Molberg, Reichek, and Nowell
    Opinion by Justice Molberg
    Appellant Deisy Umana appeals the trial court’s final order dismissing her
    claims after appellee Jose O. Rodriguez-Ramos filed a plea to the jurisdiction and
    motion to dismiss in response to her original petition, a pleading in which she sought
    a division of property and a divorce based on an alleged informal, common law
    marriage.1 As we explain below, we affirm in part, reverse in part, and remand
    certain claims in this memorandum opinion. See TEX. R. APP. P. 47.4.
    1
    “Informal” marriage is the statutory term for what many refer to as “common law” marriage. We use
    the words interchangeably here, as others have done. See, e.g., Hinojosa v. LaFredo, No. 05-18-01543-
    CV, 
    2021 WL 2217165
    , at *5 (Tex. App.—Dallas June 2, 2021, no pet. h.) (mem. op.); Wilson ex. rel.
    C.M.W. v. Estate of Williams, 
    99 S.W.3d 640
    , 642 n.1 (Tex. App.—Waco 2003, no pet.).
    I. BACKGROUND2
    Appellant Umana sued appellee Rodriguez-Ramos for divorce and division of
    property based on a common law marriage she alleges began in June 2016. She also
    asked the court to quiet title to certain real property located on Falcon Drive in
    Irving, Texas, to declare that property as community property, and to declare her as
    being entitled to a share of it.
    In response to appellant’s lawsuit, appellee filed a pleading that included a
    plea to the jurisdiction,3 motion to dismiss,4 general denial, and motion to expunge
    a lis pendens appellant had recorded on the Falcon Drive property. That pleading
    also challenged appellant’s standing;5 denied the parties were informally married;
    and claimed a common law marriage between them was legally impossible as
    alleged in appellant’s petition because, in June 2016, appellee was married to another
    woman, Bonnie Rodriguez. Attached to appellee’s pleading was a docket sheet from
    2
    We recount only those facts necessary to our disposition of this case.
    3
    In the plea to the jurisdiction portion of his pleading, appellee stated, in part:
    In this case, the Court lacks subject-matter jurisdiction to consider any of the claims
    [appellant] asserts. The Petition fails to state that [appellee] even had the requisite legal
    capacity to enter any other marriage, whether it be formal or informal, due to the fact that
    [he] was legally married during the time period as set forth in the Petition. The Petition is
    entirely devoid of any fact(s) demonstrating a causal [sic] relationship between the
    parties[,] and the only person [appellant] lists as those to whom the parties allegedly held
    themselves out to be married are the [appellant’s] own siblings.
    4
    The motion to dismiss section stated, in its entirety, “If the relevant evidence is undisputed or fails to
    raise a fact question on the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a
    matter of law. . . . If a trial court lacks subject-matter jurisdiction, it has no discretion and must dismiss the
    case. . . . A court must determine at its earliest opportunity whether it has authority to allow the litigation
    to proceed.” (internal citations omitted).
    5
    Appellee stated, “Standing requires that [appellant] show she is a wife that is seeking a divorce from
    a husband” and that “[w]ithout standing, the court lacks jurisdiction to consider [her] claim for divorce.”
    –2–
    a divorce proceeding with Mrs. Rodriguez.6 Appellee asked that appellant’s claims
    be dismissed and that the court award all relief requested in his pleading.
    Appellant opposed appellee’s requests, and with her response she submitted
    her own evidence, including an affidavit and various attachments concerning the
    Falcon Drive property, among other things. As to the property, her affidavit states,
    in pertinent part:
    [Appellee] and I moved in together in June of 2016. We moved in, at
    that time, to the house located at 1118 Falcon Drive, Irving, Texas
    75060. My brother, Juan Maunel Umana, originally purchased the
    house from Paloma Libertad Markez Soto (“Paloma”) for me because
    I was still in Guatemala. The house was always meant to be my house.
    My brother, Juan, purchased it for me from Paloma. I sent $37,400
    from Guatemala to my brother, Juan, to use to purchase the house for
    me. I acquired the money by selling land in Guatemala and using the
    proceeds from the sale of the land to convert to U.S. Dollars and send
    to my brother for the purpose of purchasing the house for me.
    Her affidavit also provides certain details regarding a foreclosure on the
    property and an agreement she and her brother tried to work out with the investor
    who foreclosed on it, as well as problems she and her brother had in securing the
    financing needed as part of that agreement.
    Her affidavit also discussed appellee’s purchase of the property and stated, in
    pertinent part:
    Accordingly, Jose O. Rodriguez-Ramos got the bank loan and acquired
    the house from the private investor without any downpayment. All
    parties agreed, at all times, that the house was Deisy Umana’s house
    because she is the one who sold her property in Guatemala in order to
    6
    The docket sheet is from a divorce proceeding in the 303rd district court between Jose Orlando
    Rodriguez and Bonnie Rodriguez, cause number DF-16-12298.
    –3–
    come up with the $37,400 needed to purchase the house. All parties
    knew that the house was always intended to be Deisy Umana’s house.
    Additionally, Deisy Umana and Jose O. Rodriguez-Ramos were living
    in the house as husband and wife. The house was purchased during the
    common law marriage.
    On the same day she filed her response, appellant also amended her pleading,
    repeating the same content as included before, but adding a new paragraph stating:
    Plaintiff asks that this Court find that the parties entered into a common
    law marriage. Then, Petitioner asks this Court to dissolve that marriage
    and divide the house located at 1118 Falcon Drive, Irving, Texas 75060
    (hereinafter the “Property”) amongst the parties in a just and right and
    equitable division. In the alternative, the Petitioner asks the Court to
    find that the parties entered into a joint venture with respect to the house
    located at 1118 Falcon Drive, Irving, Texas 75060 and to conduct a
    judicially supervised [w]ind-up of that joint venture pursuant to the
    Texas Business Organizations Code, and to partition the Property
    amongst the parties in kind or by sale. In the further alternative, the
    Petitioner asks the Court to grant equitable relief in the form of placing
    the Property into a constructive trust for the Petitioner’s benefit, and
    awarding to the Petitioner the Petitioner’s equitable interests in the
    Property by [v]irtue of unjust enrichment, quantum meruit, quantum
    valebant,[7] and equitable turnover of 50% of the Property to the
    Petitioner. The factual bases for equitable relief are substantiated by
    the Petitioner’s affidavit, which is attached hereto and incorporated
    herein by reference.
    On November 18, 2019—five months after appellant filed her response—the
    court conducted an evidentiary hearing. According to a notice of hearing in the
    record, the hearing was originally set for August 2, 2019. The hearing notice stated
    7
    “‘Quantum valebant is a common law action of assumpsit for goods sold and delivered, founded on
    the implied promise to pay what the goods are worth” and is “‘[s]imilar to quantum meruit [and] concerns
    an implied promise to pay for the reasonable market value of goods delivered to the buyer.’” United States
    Catastrophic Re-Constructors, Inc. v. Spencer, No. 05-14-01150-CV, 
    2015 WL 7075163
    , at *1 n.2 (Tex.
    App.—Dallas Nov. 13, 2015, no pet.) (mem. op.) (quoting State Pipe & Supply, Inc. v. Trident Steel Corp.,
    No. 14-99-00536-CV, 
    2000 WL 1591057
    , at *6 (Tex. App.—Houston [14th Dist.] Oct. 26, 2000, pet.
    denied) (not designated for publication)).
    –4–
    that appellee’s “Pleas[] to the Jurisdiction and Motion to Expunge Lis Pendens
    . . . are [both set] for a hearing” on that date in order “to determine whether the relief
    requested in [those] Motions should be granted.” The record does not reveal what,
    if anything, occurred on August 2, 2019, but the record does includes the transcript
    from a November 18, 2019 evidentiary hearing.
    When the hearing began, the parties’ counsel and two interpreters8 identified
    themselves, and the court swore in the interpreters and witnesses. Appellee’s
    counsel then asked that the rule be invoked; the trial court announced that it was and
    explained what that meant. See TEX. R. CIV. P. 276; TEX. R. EVID. 614. The court
    and counsel then discussed why they were there and how they would proceed:
    [THE COURT]: We are actually here on whose motion?
    [APPELLEE’S COUNSEL]: Your Honor, [appellant] filed an original
    petition for divorce, and in response to that [appellee] filed a plea to the
    jurisdiction and a motion to dismiss. So I believe that that would
    probably need to be taken up first.
    There is also a motion that we filed . . . to expunge the lis pendens. They
    put a lis pendens on the property as well.
    THE COURT: But that’s – you guys are claiming – you filed the
    motion? All I asked was whose motion it was.
    [APPELLEE’S COUNSEL]: I believe it’s our motion, Your Honor.
    THE COURT: That would have been the right answer. So it’s your
    motion, but – so you want to go first?
    8
    One interpreter indicated he would be interpreting for appellant; the other indicated she would be
    interpreting for appellee.
    –5–
    [APPELLEE’S COUNSEL]: Sure. Judge, can I give you a nutshell
    version?
    THE COURT:         Is it because they have alleged a common-law
    marriage?
    [APPELLEE’S COUNSEL]: Right.
    THE COURT: So do we need to have – are we having the hearing on
    that issue as well, initially, to find out where we are going because one
    is the flip side of the other?
    [APPELLEE’S COUNSEL]: I agree, Your Honor, because our
    position is there is no marriage, so there is nothing to divide. Their
    position is there is a marriage and they want to divide property.
    THE COURT: So, [referring by name to appellant’s counsel,]
    generally, in this kind of a situation, it seems like I would let you go
    forward with your proof about a common-law marriage.
    [APPELLANT’S COUNSEL]: Yes, Your Honor.
    THE COURT: And then – is that the way you were thinking that we
    would proceed or are you prepared to do that?
    [APPELLANT’S COUNSEL]: I am happy to go first. I think typically
    the movant does, but it makes no difference to me. We are happy to go
    first.
    THE COURT: It doesn’t matter to me either. It’s just that it’s weird to
    go forward with something when I haven’t heard – I mean, with their
    response when I don’t even know if you have made a prima facie case
    of common-law marriage. Sometimes we bifurcate the whole trial
    issue, because it does change things in a divorce if there are no kids, for
    sure, and I find there is no common-law marriage, then we don’t ever
    get to the case, right?
    [APPELLEE’S COUNSEL]: Yes.
    THE COURT: Either way we go, you are prepared to do that, right?
    [APPELLANT’S COUNSEL]: Yes, Your Honor.
    THE COURT: It seems to make sense that we let you start.
    –6–
    [APPELLEE’S COUNSEL]: Judge, we are not opposed to it. We
    understand, either way, that their position is they have to prove a
    common-law marriage.
    THE COURT: Okay. If you guys are ready to go first, then I will let
    you go first. I just wanted to make sure I understood and we all
    understood the issue.
    [APPELLEE’S COUNSEL]: It’s okay. They can go first.
    THE COURT: Do you guys care?
    [APPELLANT’S COUNSEL]: Let’s go ahead and go. I will call my
    first witness. We will call [appellant].
    Appellant then testified through an interpreter. She was the only witness to
    testify. On direct-examination, she testified appellee moved into the house on
    Falcon Drive with her in June 2016, and the two started living together. When asked
    whether she knew he was married at the time, she answered, “They were in the
    middle of their plans for getting divorced.” The following exchange also occurred:
    [APPELLANT’S COUNSEL]:            Okay. Did you talk to him about
    getting married?
    [APPELLANT]: Yes.
    [APPELLANT’S COUNSEL]: And did you come to any agreements
    about whether you were going to do that or not?
    [APPELLANT]: We had planned it after his divorce.
    [APPELLANT’S COUNSEL]: Okay. So was that an agreement or a
    plan?
    [APPELLANT]: Well, agreement, plan, I don’t know what the
    difference is of a plan.
    Appellant’s counsel also asked her questions about the house on Falcon Drive
    where she and appellee lived together, and in some of those questions, counsel
    –7–
    phrased the question in a way suggesting that appellant bought the house. At one
    point in the hearing, appellant stated she bought the property using funds she had
    from property she sold in Guatemala, where she moved from before arriving in the
    United States, but at another point in the hearing, she stated that her brother
    purchased the property using funds she provided.
    However, the court admitted, without objection, various documents offered
    by both sides’ counsel regarding the house, and none of those documents list
    appellant as a buyer or borrower in connection with the property. In fact, the
    documents list others as a buyer or borrower in connection with the property—
    namely appellant’s brother and appellee—who apparently purchased the house at
    different times, through different transactions.
    Though we need not detail all of the evidence here, at least five things
    regarding the Falcon Drive property appear to be undisputed based on this record.
    First, using money from the sale of another property, appellant gave her brother
    money for a down payment on the Falcon Drive property, and her brother purchased
    that property before the parties began living together in 2016. Second, after
    appellant’s brother purchased the property, a foreclosure on the property occurred,
    through no fault of appellant’s brother or the parties. Third, due to certain deceptive
    practices by the prior seller, appellant’s brother sued the prior seller and obtained a
    judgment for more than $150,000 in appellant’s brother’s favor. Fourth, as a result
    of the foreclosure process, appellee purchased the home in 2018 while the parties
    –8–
    lived together. Fifth, an excerpt from a deed of trust identifies appellee as the only
    borrower and describes him as “JOSE O. RODRIGUEZ-RAMOS, AN
    UNMARRIED MAN.”
    On cross-examination, appellant testified that she and appellee lived together
    until December 2018, when they separated, and that, although appellee told her they
    needed a lawyer to be married, they never got a lawyer. Also during cross-
    examination, appellant testified, in part:
    [APPELLEE’S COUNSEL]: Ms. Deisy, are you currently married?
    [APPELLANT]: No.
    [APPELLEE’S COUNSEL]: So you are not married at this time?
    [APPELLANT]: No.
    [APPELLEE’S COUNSEL]: Correct?
    [APPELLANT]: Correct.
    [APPELLEE’S COUNSEL]: So you are a single woman at this time?
    Yes or no?
    [APPELLANT]: No.
    [APPELLEE’S COUNSEL]: Well, if you are not married, then you are
    single, correct? You can look at me, not your attorney.
    [APPELLANT]: (No response).
    [APPELLEE’S COUNSEL]: Ma’am, you said you were married in
    June of 2016, correct?
    [APPELLANT]: Yes.
    [APPELLEE’S COUNSEL]: And you admit that Jose was still married
    to his wife, Bonnie Rodriguez, in June of 2016, correct?
    [APPELLANT]: Yes.
    –9–
    [APPELLEE’S COUNSEL]: Yet you still believe you are married to
    Jose even though he was married to someone else, correct?
    [APPELLANT]: Uh-huh, yes.
    [APPELLEE’S COUNSEL]: Your Honor, may I approach? I have a
    certified copy of an Agreed Final Decree of Divorce dated July 25,
    2017.[9]
    THE COURT: You may.
    [APPELLEE’S COUNSEL]: I will ask that be admitted, Respondent's
    Exhibit 1.
    [APPELLANT’S COUNSEL]: No objection.
    THE COURT: Admitted.
    ....
    [APPELLEE’S COUNSEL]: Also, you were planning a ceremony
    because you wanted to be married to [appellee] correct?
    [APPELLANT]: Correct.
    [APPELLEE’S COUNSEL]: So you were planning a ceremony so that
    you could be married to [appellee] correct?
    [APPELLANT]: Yes.
    Both sides offered exhibits during appellant’s testimony, including some that
    had already been provided to the court as attachments to the parties’ court filings.
    The trial court admitted seven exhibits in the hearing.
    After appellant finished testifying, her counsel called appellant’s brother, Juan
    Umana, as a witness. Appellee objected and argued appellant had not disclosed
    witnesses in her discovery responses. Appellant disputed this, but the trial court
    9
    This was the decree affecting Rodriguez-Ramos and Bonnie Rodriguez in cause number DF-16-12298
    in the 303rd district court.
    –10–
    sustained the objection. Appellant’s counsel then stated, “For purposes of the record
    . . . Mr. Umana would have confirmed [appellant’s] testimony earlier that he was
    one of the people that the marriage was represented to and that the rest of what she
    testified to is accurate.” The judge asked whether counsel was “offering that like a
    bill of exception or something?” to which counsel responded, “Yes, your Honor.”
    Appellee then moved for directed verdict, and counsel presented arguments.
    The trial court then granted appellee’s motion to dismiss and stated, near the end of
    the hearing, “As far as the prima facie case for a common-law marriage, [Umana
    has] not met that burden as we sit here today. I don’t find that there is enough – or
    any evidence that evidences the agreement by the parties to be married.”
    During the hearing, the parties did not mention appellant’s amended pleading
    or the alternative claims she referred to in its new paragraph.
    The judge signed a memorandum ruling on the day of the hearing. It stated,
    in pertinent part, “RENDERED ON November 18, 2019 . . . Motion to dismiss
    granted. No prima facie case made for informal marriage.” Three days later, the
    judge signed the final order that is the subject of this appeal. The final order stated:
    On this Day, November 18, 2019, came to be heard Jose Rodriguez-
    Ramos’ Motion to Dismiss Deisy Umana’s Original Petition for
    Divorce. The Court FINDS that no Prima Facie case was made for an
    informal marriage.
    Jose Rodriguez-Ramos’ Motion to Dismiss Deisy Umana’s Original
    Petition for Divorce is hereby GRANTED.
    This Order hereby disposes of all claims contained in Deisy Umana’s
    Original Petition for Divorce. This Final Order is appealable.
    –11–
    Appellant then filed a motion for new trial that was overruled by operation of
    law. She appeals and raises three issues, all three of which we address in section III
    below.   Generally, she argues the trial court erred in conducting the evidentiary
    hearing, in concluding she made no prima facie case of common law marriage, and
    in excluding witnesses from testifying at the hearing.
    II. LEGAL STANDARDS
    Before addressing appellant’s specific issues, we include pertinent
    information regarding the legal standards we apply.
    A.    Standard of Review
    Whether a court has subject matter jurisdiction and whether a plaintiff has
    standing or has alleged facts that affirmatively demonstrate a trial court’s subject
    matter jurisdiction are questions of law we review de novo. See Farmers Tex. Cty.
    Mut. Ins. Co. v. Beasley, 
    598 S.W.3d 237
    , 240 (Tex. 2020) (de novo review on
    determinations regarding standing and pleas to the jurisdiction) (citations omitted);
    Tex. Dep’t of Parks & Wildlife v. Miranda, 
    133 S.W.3d 217
    , 228 (Tex. 2004)
    (“Appellate courts reviewing a challenge to a trial court’s subject matter jurisdiction
    review the trial court’s ruling de novo.”)
    A motion to dismiss based on a lack of jurisdiction is the “functional
    equivalent of a plea to the jurisdiction; both challenge the trial court’s power to
    determine the subject matter of a claim.” Richardson Hosp. Auth. v. Duru, 387
    –12–
    S.W.3d 109, 112 (Tex. App.—Dallas 2012, no pet.) (citing Patton v. Jones, 
    212 S.W.3d 541
    , 545 (Tex. App.—Austin 2006, pet. denied)).
    A plea to the jurisdiction “may challenge the pleadings, the existence of
    jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 
    544 S.W.3d 755
    , 770 (Tex. 2018). When a plea to the jurisdiction challenges the pleadings, we
    look to whether the plaintiff has alleged facts that affirmatively demonstrate the trial
    court’s jurisdiction to hear the case. Miranda, 133 S.W.3d at 226. We liberally
    construe a plaintiff’s pleadings in favor of jurisdiction, and we look to the plaintiff’s
    intent, accepting as true the facts alleged. Id. at 226, 228.
    When a plea challenges the existence of jurisdictional facts, we must consider
    relevant evidence submitted by the parties to resolve the jurisdictional issues. Id. at
    227. In reviewing such a plea, we take as true all evidence favorable to the
    nonmovant, indulging every reasonable inference and resolving any doubts in the
    nonmovant’s favor. Alamo Heights, 544 S.W.3d at 771; Miranda, 133 S.W.3d at
    227–28. However, we cannot disregard evidence necessary to show context or
    evidence and inferences unfavorable to the nonmovant if reasonable jurors could not
    do so. See Alamo Heights, 544 S.W.3d at 771.
    This standard mirrors our summary judgment standard under Texas Rule of
    Civil Procedure 166a(c) and places the burden on the movant to meet the standard
    of proof to support its contention the trial court lacks subject matter jurisdiction. See
    Miranda, 133 S.W.3d at 228. Once the movant asserts and provides evidentiary
    –13–
    support for its plea, the plaintiff is then required to show only that a disputed fact
    issue exists on the jurisdictional issue. Miranda, 133 S.W.3d at 228.
    If the evidence creates a fact question on the jurisdictional issue, the trial court
    cannot grant the plea, and the fact issue is for the fact finder to resolve. See Alamo
    Heights, 544 S.W.3d at 771; Miranda, 133 S.W.3d at 227–28. If the evidence is
    undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
    rules on the plea as a matter of law. Miranda, 133 S.W.3d at 228.
    B.    Standing
    Standing is a threshold requirement to maintaining a lawsuit. Farmers Tex.
    Cty. Mut. Ins. Co., 598 S.W.3d at 240 (citing Heckman v. Williamson Cty., 
    369 S.W.3d 137
    , 150 (Tex. 2012)). In Texas, to establish standing, “a plaintiff must
    allege ‘a concrete injury . . . and a real controversy between the parties that will be
    resolved by the court.” 
    Id.
     (quoting Heckman, 369 S.W.3d at 154). The injury
    alleged by a plaintiff must be threatened or actual—not hypothetical. Id. (citations
    omitted). Courts look to a plaintiff’s pleadings to determine whether a plaintiff has
    alleged a concrete injury sufficient to meet the standing requirement. Id. (citation
    omitted). “Because the standing determination is made by looking to the plaintiff's
    pleadings, the mere fact that a plaintiff may ultimately not prevail on the merits of
    the lawsuit does not deprive the plaintiff of standing.” Id. (citing DaimlerChrysler
    Corp. v. Inman, 
    252 S.W.3d 299
    , 305 (Tex. 2008)).
    –14–
    C.    Exclusion of Evidence
    In an appeal of a plea to the jurisdiction, we review a trial court’s decision to
    admit or exclude evidence for an abuse of discretion. See Sloan Creek II, L.L.C. v.
    N. Tex. Tollway Auth., 
    472 S.W.3d 906
    , 918 (Tex. App.—Dallas 2015, pet. denied)
    (citing In re J.P.B., 
    180 S.W.3d 570
    , 575 (Tex. 2005)). A trial court abuses its
    discretion when it acts without reference to any guiding rules or principles. 
    Id.
    (citing Carpenter v. Cimarron Hydrocarbons Corp., 
    98 S.W.3d 682
    , 687 (Tex.
    2002); Garcia v. Martinez, 
    988 S.W.2d 219
    , 222 (Tex. 1999)).
    We will not reach an issue regarding error in the exclusion of evidence unless
    the party complaining about the exclusion has preserved error. See Sink v. Sink, 
    364 S.W.3d 340
    , 346–47 (Tex. App.—Dallas 2012, no pet.) (citing In re Estate of Miller,
    
    243 S.W.3d 831
    , 837 (Tex. App.—Dallas 2008, no pet.)). “A party may claim error
    in a ruling to . . . exclude evidence only if the error affects a substantial right of the
    party and . . . a party informs the court of its substance by an offer of proof, unless
    the substance was apparent from the context.” TEX. R. EVID. 103(a)(2); see Sink,
    
    364 S.W.3d at 347
     (citations omitted) (complaining party must offer the evidence
    and secure adverse ruling from the trial court). Without an offer of proof or a formal
    bill of exception, we cannot determine whether the exclusion of evidence was
    harmful. Sink, 
    364 S.W.3d at 347
     (citations omitted); see TEX. R. APP. P. 44.1(a)
    (standards for reversible error).
    –15–
    D.    Informal Marriage
    Texas law provides two ways to enter into a valid marriage: through a
    ceremonial marriage, or through an informal one. Hinojosa, 
    2021 WL 2217165
    , at
    *5 (citations omitted); see TEX. FAM. CODE §§ 2.001, 2.202, 2.401.
    An informal, or common law marriage can be established in one of two ways.
    First, a party may present evidence that the parties filed a declaration of informal
    marriage with the county clerk. Hinojosa, 
    2021 WL 2217165
    , at *5 (citing TEX.
    FAM. CODE § 2.401(a)(1)). While such a declaration constitutes prima facie proof
    of the parties’ informal marriage, parties may have a valid common law marriage
    without filing one. See In Russell v. Russell, 
    865 S.W.2d 929
    , 931 (Tex. 1993)
    (declaration constitutes prima facie proof but “parties need not make the declaration
    to have a valid common law marriage.”)
    Second, a couple may establish an informal marriage by demonstrating that:
    (1) they “agreed to be married”; (2) “after the agreement they lived together in
    [Texas] as husband and wife”; and (3) “there represented to others that they were
    married.” TEX. FAM. CODE § 2.401(a)(2); Hinojosa, 
    2021 WL 2217165
    , at *5;
    Estate of Pandozy, No. 05-19-00755-CV, 
    2021 WL 711500
    , at *3 (Tex. App.—
    Dallas Feb. 22, 2021, no pet.) (mem. op.). The first element—an agreement to be
    married—cannot be established with proof of an intention to be married at some
    point in the future. See Aguilar v. State, 
    715 S.W.2d 645
    , 648 (Tex. Crim. App.
    1986) (“A present intention to be married in the future is not enough. The parties
    –16–
    must intend to be husband and wife from the moment of the agreement onward.”);
    Winegardner v. Hughes, No. 07-18-00434-CV, No. 07-19-00283-CV, 
    2020 WL 1966283
    , at *3 (Tex. App.—Amarillo Apr. 23, 2020, no pet.) (mem. op.) (“evidence
    of future plans [to marry] negates an essential element of [an] informal marriage
    claim as it demonstrates the lack of a present intent to be married”).
    The existence of an informal marriage is a fact question. In re O.R.M., 
    559 S.W.3d 738
    , 744 (Tex. App.—El Paso 2018, no pet.) (citations omitted); Joplin v.
    Borusheski, 
    244 S.W.3d 607
    , 610–11 (Tex. App.—Dallas 2008, no pet.) (citations
    omitted). The party seeking to establish the existence of an informal marriage bears
    the burden of demonstrating the three elements by a preponderance of the evidence.
    Hinojosa, 
    2021 WL 2217165
    , at *5 (citations omitted); Pandozy, 
    2021 WL 711500
    ,
    at *3 (citation omitted); In re O.R.M., 559 S.W.3d at 744 (citations omitted); Joplin,
    
    244 S.W.3d at
    610–11 (citation omitted).
    An informal marriage does not exist until the concurrence of all three
    elements. Winegardner, 
    2020 WL 1966283
    , at *3 (citing Eris v. Phares, 
    39 S.W.3d 708
    , 713 (Tex. App.—Houston [1st Dist.] 2001, pet denied)); In re O.R.M., 559
    S.W.3d at 744.
    III. ANALYSIS
    A.    Hearing and Dismissal of Family Code Claim
    In her first issue, appellant argues the trial court erred “in dismissing the case
    on a plea to the jurisdiction by conducting an evidentiary hearing, like a trial,” and
    –17–
    “making fact findings on the merits of the case instead of merely determining
    whether the Court [did] or did not have jurisdiction over the case[.]” Because the
    trial court’s finding related to whether or not a prima facie case of common law
    marriage had been made, a matter relating directly to her claim for divorce and
    property division under the family code, we limit our discussion in this section to
    the family code claim and address the dismissal of her alternative claims in section
    III.B. below.
    In arguing this issue, appellant makes three main assertions. First, she asserts
    the trial court could not have ruled on the motion to dismiss because, according to
    her, the motion was not set for hearing.                   Second, she asserts that appellee’s
    arguments regarding jurisdiction and standing10 were meritless. Third, she asserts
    that neither the plea to the jurisdiction nor the motion to dismiss were proper vehicles
    for disposing of the case, citing as support Almeida v. Estrada, No. 04-05-00255-
    CV, 
    2006 WL 2818067
    , at *2 (Tex. App.—San Antonio Oct. 4, 2006, no pet.).
    Appellee ignores the first of these three assertions but disputes the other two.
    Generally, appellee argues the trial court correctly ruled and characterizes the ruling
    as a decision to grant his motion for directed verdict. We disagree with appellee’s
    10
    She also makes arguments regarding standing, which we need not address here, because it is not clear
    that the trial court made any rulings regarding standing. See TEX. R. APP. P. 33.1(a)(1).
    –18–
    mischaracterization because there is no indication in either the hearing transcript11
    or final order12 that the trial court ruled on that motion.13
    We also disagree with appellant’s assertions, however.                           As to her first
    assertion that appellee’s motion to dismiss was not set for hearing, we note that
    appellee’s plea to the jurisdiction and motion to dismiss were both included together
    in the same pleading, as was appellee’s motion to expunge the lis pendens, which
    was also set for hearing on the same day and mentioned in the notice of hearing. We
    are unpersuaded by appellant’s argument that the hearing notice was insufficient to
    put her on notice that the motion to dismiss would be heard because, as appellant
    acknowledges, both the plea to the jurisdiction and motion to dismiss were based on
    a lack of jurisdiction, and in such circumstances, the motion served as a “functional
    equivalent of a plea to the jurisdiction.” See Richardson Hosp. Auth., 387 S.W.3d
    at 112. Moreover, appellant failed to preserve error regarding any problems with
    the hearing notice when, at the beginning of the hearing, the motion to dismiss was
    specifically mentioned as a matter that was being heard, and appellant failed to
    object or take any other step at that point to preserve error. See TEX. R. APP. P.
    11
    When announcing its ruling, the trial judge referred to the plea to the jurisdiction, motion to dismiss,
    and to appellee’s argument that jurisdiction was lacking without a prima facie case of common law
    marriage. The court then stated, “I am saying that you did not do that, so that follows, that we just grant
    their motion to dismiss.”
    12
    The final order states the court is granting a motion to dismiss, not a motion for directed verdict.
    13
    We express no opinion on appellee’s motion for directed verdict under the circumstances presented,
    but we do note that if a motion for directed verdict been made in the context of a bench trial, we would
    consider it not as a motion for directed verdict but as a motion a motion for judgment instead. See, e.g.,
    Pandozy, 
    2021 WL 711500
    , at *3 (citations omitted).
    –19–
    33.1(a)(1); In re Estate of Miller, 
    243 S.W.3d at 837
     (to preserve error on appeal,
    party must present to the trial court a timely request, motion, or objection, state the
    specific grounds therefore, and obtain a ruling that appears in the record).
    Finally, we disagree with appellant’s second and third assertions, in which she
    claims the trial court erred in conducting an evidentiary hearing and concluding
    appellant had not made a prima facie case of informal marriage. We are unpersuaded
    by and decline to follow our sister court’s opinion in Almeida v. Estrada, which
    appellant relies on, as it is distinguishable and is not binding on us here. In Almeida,
    unlike in this case, the nonmovant’s counsel made process-related objections as the
    dismissal hearing began, and in light of the record there, the appellate court
    concluded that “[a] dismissal [was] an inappropriate means of deciding the merits of
    a case” and that “the trial court reversibly erred in entering a dismissal order that
    adjudicated the merits of the case.” Almeida, 
    2006 WL 2818067
    , at *2. Also, in the
    trial court’s rendition of judgment, the trial court in Almeida stated: “Based on the
    totality of the evidence provided to the Court from testimony and affidavit, this Court
    is of the opinion that there was no marriage between Cindy Almeida and Antonio
    Estrada.” Almeida, 
    2006 WL 2818067
    , at *1. In contrast, in the trial court’s
    rendition in this case, the trial court spoke of the lack of a prima facie case, a
    seemingly slight, but important distinction, at least in the context of the specific
    circumstances before us, where the judge stated she “[did not] find . . . any evidence
    that evidences the agreement by the parties to be married.”
    –20–
    As we have already noted, a plea to the jurisdiction can be based on the
    pleadings or on evidence. Miranda, 133 S.W.3d at 226. When, as here, a plea
    challenges the existence of jurisdictional facts, the trial court was to consider
    relevant evidence submitted by the parties to resolve the jurisdictional issues. See
    id. at 227. The evidentiary standards the court was to follow mirror the summary
    judgment standard under civil procedure rule 166a(c). See Miranda, 133 S.W.3d at
    228. This placed the burden on appellee, as the movant, to meet the standard of
    proof to support his contention the trial court lacked subject matter jurisdiction. See
    id. Once appellee asserted and provided evidentiary support for his plea, appellant
    was then required to show only that a disputed fact issue exists on the jurisdictional
    issue. See id. If the evidence is undisputed or fails to raise a fact question on the
    jurisdictional issue, the trial court could rule on the plea as a matter of law. See
    Miranda, 133 S.W.3d at 228. If the evidence creates a fact question on the
    jurisdictional issue, the trial court cannot grant the plea, and the fact issue is for the
    fact finder to resolve. See Alamo Heights, 544 S.W.3d at 771; Miranda, 133 S.W.3d
    at 227–28.
    Here, appellee submitted evidence with his plea and motion showing that he
    was not yet divorced from Bonnie Rodriguez in June 2016, when appellant claims
    that she and appellee began their alleged common law marriage. Appellant then
    submitted evidence with her response, and she amended her pleading, again stating
    in the hearing and in her amended pleading that she and appellee began a common
    –21–
    law marriage in June 2016. However, appellant also agreed that in June 2016, when
    the parties began living together, appellee was still married to Bonnie Rodriguez and
    said “[t]hey were in the middle of their plans for getting divorced,” and she testified
    that she (appellant) was not currently married.
    Based on the record before us, we conclude the trial court did not err in
    dismissing appellant’s claims for divorce and property division after the evidentiary
    hearing because, as the trial court suggested—albeit with different language14—the
    evidence did not raise a fact issue on the parties’ agreement to be married, a
    necessary element of establishing the existence of a common law marriage. See
    Miranda, 133 S.W.3d at 228 (describing general review standards on plea to
    jurisdiction); Estate of Pandozy, 
    2021 WL 711500
    , at *3 (listing common law
    marriage elements and affirming dismissal on jurisdictional grounds of case
    involving common law marriage); Winegardner, 
    2020 WL 1966283
    , at *3 (same).15
    We overrule appellant’s first issue.
    14
    In rendering judgment, the court stated that appellant had not met her burden of establishing a prima
    facie case and explained, “I don’t find that there is enough – or any evidence that evidences the agreement
    by the parties to be married.”
    15
    Cf. Farjardo No. 14-15-00653-CV, 
    2016 WL 4206009
    , at *2–4 (Tex. App.—Houston [14th Dist.]
    Aug. 9, 2016, no pet.) (mem. op.) (in case involving presumptions and burdens that do not apply here,
    appellate court assumed a plea to the jurisdiction was a proper vehicle for dismissal but reversed a trial
    court’s order dismissing a common law marriage claim, where appellate court concluded that appellant
    presented more than a scintilla of evidence on each element of common law marriage).
    –22–
    B.    Dismissal of Alternative Claims
    In her second issue, appellant argues the trial court erred in dismissing her
    alternative claims for breach of contract, unjust enrichment, quantum meruit,
    quantum valebant, constructive trust, and equitable turnover for fifty percent of the
    property because appellee did not include them in his plea to the jurisdiction, did not
    submit any proof negating them at the hearing, and because those claims were
    included in her amended petition and were still pending at the time of the final order.
    Appellee responds with two arguments but cites no authorities in support.
    First, appellee argues appellant failed to preserve error on this issue. Second,
    appellee argues that, because appellant presented no evidence on her alternative
    claims in the hearing, the trial court properly dismissed appellant’s alternative claims
    by granting his motion for directed verdict.
    We disagree with appellee’s first argument because appellant raised this issue
    in the trial court by including it in her motion for new trial, which was overruled by
    operation of law. See TEX. R. APP. P. 33.1(a)(1).
    We also disagree with appellee’s second argument, as we did with the same
    argument in analyzing appellant’s first issue. As we previously discussed, there is
    nothing in the record to indicate the court ruled on any motion for directed verdict.
    In her reply brief, appellant argues, in essence, that by dismissing her
    alternative claims on this record—where appellee made no prior challenge to them
    –23–
    based on either the pleadings or the evidence—the trial court effectively reversed
    the parties’ respective burdens under Miranda and therefore erred as a matter of law.
    We agree and conclude the trial court erred as a matter of law by dismissing
    appellant’s alternative claims in its final order because appellee did not challenge
    appellant’s alternative claims in his plea to the jurisdiction or motion to dismiss and
    thus did not satisfy his initial burden under Miranda. See Miranda, 133 S.W.3d at
    226–28 (discussing burdens).
    We sustain appellant’s second issue.
    C.    Exclusion of Witnesses
    In her third issue, appellant argues that the trial court abused its discretion by
    excluding testimony by witnesses who would have corroborated her assertions that
    the parties had agreed to be married and held themselves out to the public as such.
    In her briefing, appellant discusses the witnesses generally, not by name, and when
    describing their anticipated testimony, she cites only to her own testimony
    identifying unnamed “[w]itnesses” as “all” of the proof she had, besides the parties’
    living together, that appellee agreed to be married to her.
    Appellee does not address the substance of appellant’s arguments and argues
    appellant failed to preserve error on this issue.
    We need not reach this issue with regard to any witnesses other than
    appellant’s brother, Juan Umana, because as to all other witnesses besides him, there
    is no indication in the record that appellant called, or that the trial court excluded,
    –24–
    any other witness, and she made no offer of proof or bill of exception regarding any
    other witness’s testimony. Because of this, we conclude appellant failed to preserve
    error on this issue for any witness other than Mr. Umana. See Sink, 
    364 S.W.3d at
    346–47; TEX. R. APP. P. 33.1.
    As to Mr. Umana, however, appellant at least attempted to preserve error, and
    although we do not decide whether her attempt was sufficient, we presume for
    purposes of this appeal that it was.16 However, there is nothing in the record
    demonstrating the trial court abused its discretion in excluding Mr. Umana’s
    testimony on the basis of a failure to disclose him as a witness.17
    In addition, the case appellant relies on, In re Toyota Motor Corporation, 
    191 S.W.3d 498
    , 501 (Tex. App.—Waco 2006, no pet.) (orig. proceeding) is
    distinguishable. In Toyota, the court considered whether it was error to allow an
    undisclosed expert to testify in a hearing on a motion to quash deposition notices for
    minor children claimants. 
    Id.
     The court held that it was not error to allow the
    16
    Appellant called Mr. Umana as a witness; the trial court sustained appellee’s objection to his
    testimony on the grounds that appellant had not disclosed him as a witness; and after the court’s ruling,
    appellant’s counsel stated, “For purposes of the record . . . Mr. Umana would have confirmed [appellant’s]
    testimony earlier that he was one of the people that the marriage was represented to and that the rest of what
    she testified to is accurate.”
    17
    While appellant attached to her reply brief a disclosure response that was purportedly “[d]iscussed at
    [t]rial as to Juan Umana,” we may not consider this document in our review because it is not part of the
    appellate record. See TEX. R. APP. P. 34.1; Burke v. Ins. Auto Auctions Corp., 
    169 S.W.3d 771
    , 775 (Tex.
    App.—Dallas 2005, pet. denied) (citing Green v. Kaposta, 
    152 S.W.3d 839
    , 841 (Tex. App.—Dallas 2005,
    no pet.); Elwell v. State, 
    872 S.W.2d 797
    , 799 (Tex. App.—Dallas 1994, pet. ref’d) (“we cannot take judicial
    notice of the records of any court not properly admitted into evidence before the trial court, even though
    the records might be attached to a [party’s] brief”) (citing Penix v. State, 
    748 S.W.2d 629
    , 630–31 (Tex.
    App.—Fort Worth 1988, no pet.)).
    –25–
    testimony because rule of civil procedure 193.6 “does not operate to exclude an
    undisclosed expert’s testimony from a preliminary hearing not on the merits.” 
    Id.
    (citing Monsanto Co. v. Davis, 
    25 S.W.3d 773
    , 785 (Tex. App.—Waco 2000, pet.
    dism’d w.o.j.). That reasoning does not apply to the circumstances here. Unlike the
    motion to quash context in Toyota, the evidentiary dispute in this case arose in a
    context requiring the application of the same review standards as a traditional motion
    for summary judgment, which certainly involves the merits. See Miranda, 133
    S.W.3d at 228 (when a plea to the jurisdiction challenges existence of jurisdictional
    facts, not the pleadings, review standard is the same as a traditional motion for
    summary judgment); Lawson v. Collins, No. 03-17-00003-CV, 
    2017 WL 4228728
    ,
    at *7 (Tex. App.—Austin Sept. 20, 2017, no pet.) (mem. op.) (implicitly refusing to
    apply In re Toyota in a summary judgment context, which court viewed as plainly
    testing the merits of a claim).
    Finally, even though we assume appellant preserved error, and even if we
    concluded an abuse of discretion occurred, we may not reverse unless the error was
    harmful. See TEX. R. APP. P. 44.1(a) (standards for reversible error); Sink, 
    364 S.W.3d at 347
    . Despite appellant’s conclusory arguments that she was harmed by
    the court’s alleged error in excluding Mr. Umana’s testimony, neither party mentions
    rule 44.1 or the standards we are required to follow in applying it. Based on the
    record here, we cannot conclude that the exclusion of Mr. Umana’s testimony
    –26–
    “probably caused the rendition of an improper judgment” or “probably prevented
    the appellant from properly presenting the case” to us. See TEX. R. APP. P. 44.1(a).
    We overrule appellant’s third issue.
    IV. CONCLUSION
    For the reasons explained herein, we overrule appellant’s first and third issues
    and sustain her second. As a result, we affirm the trial court’s final order with regard
    to Umana’s claim for divorce and property division under the family code but reverse
    the final order with regard to her alternative claims for breach of contract, unjust
    enrichment, quantum meruit, quantum valebant, constructive trust, and equitable
    turnover for fifty percent of the property and remand those alternative claims to the
    trial court for additional proceedings. However, we express no opinion on the
    viability of those alternative claims, the sufficiency of appellant’s pleadings in
    asserting them, or the sufficiency of appellant’s evidence in proving them, if any, as
    none of those issues are properly before us in this appeal.
    /Ken Molberg/
    200238f.p05                                  KEN MOLBERG
    JUSTICE
    –27–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    DEISY UMANA, Appellant                          On Appeal from the 301st Judicial
    District Court, Dallas County, Texas
    No. 05-20-00238-CV           V.                 Trial Court Cause No. DF-19-05828.
    Opinion delivered by Justice
    JOSE O. RODRIGUEZ-RAMOS,                        Molberg. Justices Reichek and
    Appellee                                        Nowell participating.
    In accordance with this Court’s opinion of this date, the trial court’s final order
    is AFFIRMED with regard to Umana’s claim for divorce and property division
    under the family code and is REVERSED and REMANDED to the trial court for
    additional proceedings with regard to Umana’s alternative claims for breach of
    contract, unjust enrichment, quantum meruit, quantum valebant, constructive trust,
    and equitable turnover for fifty percent of the property.
    Judgment entered this 21st day of June, 2021.
    –28–