Preston L. Howard v. Pine Tree I.S.D. and Melissa Newman ( 2023 )

NO. 12-22-00222-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
PRESTON L. HOWARD, § APPEAL FROM THE 188TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
PINE TREE I.S.D. AND MELISSA
NEWMAN, § GREGG COUNTY, TEXAS
APPELLEES
MEMORANDUM OPINION
Preston L. Howard appeals the trial court’s judgment granting Pine Tree Independent
School District and Melissa Newman’s Texas Rule of Civil Procedure 91a motion and
dismissing Howard’s lawsuit. In his sole issue, Howard contends that the trial court erred when
it granted Pine Tree and Newman’s Rule 91a motion to dismiss. 1 We affirm.
BACKGROUND
The property at issue is located at 204 E Fleming Street, Longview, Texas 75604, and has
a legal description of LT 38 & LT 39 BLK 6 KEY BUNT .67, identified in the Gregg County
Appraisal District’s records at Account 984419. The property was previously owned by Mae
Lizzie Howard, and subsequently transferred to Mae’s three children—Lossie D. Hopkins
Howard, Ora Mae Howard Riley, and the plaintiff Preston Howard—by will at the time of her
death. The district received notice of Mae’s death and created an undivided interest in the
property. The district assigned Lossie and Ora Mae a sixty-seven percent undivided interest, and
Preston Howard a thirty-three percent undivided interest, consistent with Mae’s will.
1
Howard appeared pro se at trial and on appeal, and it is difficult to clearly ascertain the issue raised in his
brief. The primary issue appears to be that Howard contends that he was denied the opportunity for a jury trial and
to present evidence of his claim because the trial court granted Pine Tree and Newman’s Rule 91a motion to dismiss
his baseless cause of action.
1
The district then created two “children” accounts within the parent account to reflect the
undivided interests. Account 195008 was created for Lossie’s and Ora Mae’s sixty-seven
percent undivided interest, while Account 50016 was created for Preston Howard’s thirty-three
percent undivided interest. Notwithstanding the creation of the “children” accounts, ownership
of the property remained an undivided interest in LT 38 & LT 39 BLK 6 KEY BUNT .67.
Unpaid taxes were owed on the property, specifically Account 195008. Preston Howard
was under the misconception that if the unpaid taxes were paid, he would receive the deed to the
entirety of the undivided property interests, and could then transfer a portion of the property,
Lossie’s and Ora Mae’s sixty-seven percent undivided interest, or Account 195008, to Allison
Cameron in exchange for her paying the unpaid taxes. However, Lossie and Ora Mae still held
their undivided sixty-seven percent interest in the property. Nevertheless, acting under this
misconception, it appears that Preston Howard made an agreement with Cameron that if she paid
taxes on Account 50016, he would transfer Account 195008 to her. Several quit claim deeds
were filed reflecting his attempt to transfer Account 195008. The first quit claim deed was filed
February 15, 2012. The second quit claim deed was filed December 11, 2012. Based on the
representations made by Howard, Cameron voluntarily paid the taxes due on Account 195008.
After learning of their mistake, Cameron filed a request that she be refunded the
payments. Gregg County Appraisal District refunded to her its portion of the payments made by
Cameron. However, Pine Tree, which has its own tax assessor/collector (Newman), opted to
retain its portion of the delinquent taxes paid by Cameron, citing the “voluntary payment rule.” 2
Consequently, Howard filed suit, naming himself and Cameron as plaintiffs, to obtain a refund
for the payments made by Cameron to Pine Tree. 3
RULE 91A MOTION TO DISMISS
In his sole issue, Howard contends that the trial court erred when it granted Pine Tree and
Newman’s Texas Rule of Civil Procedure 91a motion to dismiss his suit as baseless.
Standard of Review
If a cause of action has no basis in law or fact, a party may move for dismissal under Rule
91a. TEX. R. CIV. P. 91a; see also In re Farmers Tex. Cnty. Mutual Ins. Co., 621 S.W.3d 261,
2
See, e.g., BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 768 (Tex. 2005) (discussing “voluntary
payment rule”).
3
As we discuss below, Howard included Cameron as a plaintiff without her permission.
2
266 (Tex. 2021). “A cause of action has no basis in law if the allegations, taken as true, together
with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.”
TEX. R. CIV. P. 91a.1. We review whether a cause of action has any basis in law de novo. San
Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021).
To establish that a cause of action has no basis in law, “the defendant must demonstrate
that recovery by the plaintiff is foreclosed as a matter of law—i.e., that it is legally impossible
for the plaintiff to recover on the claims in its petition—because either (1) the causes of action in
the petition are not recognized by Texas law or (2) the plaintiff has alleged facts that defeat those
causes of action under settled law (i.e., the plaintiff has pleaded itself out of court).” In re Shire
PLC, 633 S.W.3d 1, 19 (Tex. App.—Texarkana 2021, no pet.) (orig. proceeding) (internal
citations omitted). “A plaintiff pleads himself out of court by alleging facts that render success
on the merits impossible.” Id. at 25.
In evaluating whether a cause of action has a basis in fact, we apply the Texas fair notice
pleading standard, under which a petition is sufficient “if it gives fair and adequate notice of the
facts upon which the pleader bases his claim.” Darnell v. Rogers, 588 S.W.3d 295, 301 (Tex.
App.—El Paso 2019, no pet.). In other words, we “assess the sufficiency of pleadings by
determining whether an opposing party can ascertain from the pleading the nature, basic issues,
and the type of evidence that might be relevant to the controversy.” Id. (quoting Low v. Henry,
221 S.W.3d 609, 612 (Tex. 2007)). “If a petition provides sufficient facts to give fair notice of
the claim, then a motion seeking dismissal based on lack of a basis in fact should be denied.” Id.We accept as true the factual allegations in the pleadings and liberally construe the
pleadings in favor of the plaintiff. HMT Tank Serv. v. Am. Tank & Vessel, Inc., 565 S.W.3d
799, 808 (Tex. App.—Houston [14th Dist.] 2018, no pet.). If needed, the trial court may draw
reasonable inferences from the factual allegations to determine if the cause of action has any
basis in law or fact. Vasquez v. Legend Nat. Gas, LP, 492 S.W.3d 448, 450 (Tex. App.—San
Antonio 2016, pet. denied). However, a court may not consider evidence and must decide the
motion “based solely on the pleading of the cause of action, together with any pleading exhibits
permitted by [Texas Rule of Civil Procedure] 59.” TEX. R. CIV. P. 91a.6. “A motion to dismiss .
. . must state specifically the reasons the cause of action has no basis in law, no basis in fact, or
both.” TEX. R. CIV. P. 91a.2. Finally, when the trial court does not specify the ground on which
it relied, a party appealing the grant of a motion to dismiss under Rule 91a must challenge every
3
ground on which the trial court could have granted the motion. Emmanuel v. Izoukumor, 611
S.W.3d 453, 458 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
Applicable Law
Standing is a component of subject matter jurisdiction. Farmers Tex. Cty. Mut. Ins. Co.
v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020). Subject matter jurisdiction is essential to the
authority of a court to decide the merits of the plaintiff’s claims. See Texas Ass’n of Bus. v.
Texas Air Control Bd., 852 S.W.2d 440, 443–45 (Tex. 1993); Save Our Springs All., Inc. v.
City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—Austin 2010, pet. denied).
Standing is a threshold requirement to maintaining a lawsuit. See Heckman v. Williamson Cty.,
369 S.W.3d 137, 150 (Tex. 2012) (citations omitted).
Standing to sue means that the party in question has a sufficient stake in the matter in
controversy to obtain a judicial resolution of that dispute. Walters v. Livingston, 519 S.W.3d
658, 665 (Tex. App.—Amarillo 2017, no pet.). The general test for standing is whether there is a
real controversy between the parties that will actually be determined by the judicial declaration
sought. Id. Standing focuses on the question of who may bring a lawsuit. Patterson v. Planned
Parenthood, 971 S.W.2d 439, 442 (Tex.1998).
“To maintain standing, a plaintiff must show: (1) an injury in fact that is both concrete
and particularized and actual or imminent, not conjectural or hypothetical; (2) that the injury is
fairly traceable to the defendant’s challenged action; and (3) that it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Data Foundry,
Inc. v. City of Austin, 620 S.W.3d 692, 696 (Tex. 2021). Regarding the first element, a plaintiff
must establish he was “personally injured—he must plead facts that demonstrate that he, himself
(rather than a third party or the public at large), suffered the injury.” Farmers Tex. Cty. Mut.
Ins. Co., 598 S.W.3d at 241; Heckman, 369 S.W.3d at 154.
In determining whether a plaintiff has alleged a concrete injury sufficient to meet the
standing requirement, courts look to the plaintiff’s pleadings. See Tex. Ass’n of Bus., 852
S.W.2d at 446 (citation omitted). The plaintiff must allege facts that affirmatively demonstrate
the court’s jurisdiction to hear the cause. Id. If, after examining the pleadings and any
undisputed standing evidence, the court concludes that standing does not exist, the case must be
dismissed. See Heckman, 369 S.W.3d at 150.
4
Because it is a component of subject matter jurisdiction, standing cannot be waived and
may be raised for the first time on appeal. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477,
484 (Tex. 2018). “A court can—and if in doubt, must—raise standing on its own at any time.”
Id. (citing Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 580 (Tex. 2013)). We review
questions of standing de novo. Farmers Tex. Cty. Mut. Ins. Co., 598 S.W.3d at 240.
Discussion
The precise issue raised in Howard’s pro se brief is unclear. 4 As best we can ascertain
from the brief, Howard’s sole issue appears to be his contention that the trial court erred when it
granted the Rule 91a motion to dismiss, which he argues precluded him from presenting
testimony from witnesses and evidence in a jury trial.
At the outset, we note that the express purpose of Rule 91a is to efficiently dispense with
claims that, on the face of the pleadings, have no basis in law or fact—i.e., in cases where the
presentation of evidence in a jury trial is unwarranted. See TEX. R. CIV. P. 91a.1. Furthermore,
except in the case of pleading exhibits attached to the petition under Rule 59, the court may not
consider any evidence in ruling on the motion. See TEX. R. CIV. P. 91a.6.
The petition, response to the motion, and Howard’s pro se appellate brief do not
specifically set out a cause of action. When asked at the Rule 91a motion hearing, Howard could
not identify a specific cause of action. Construing these documents liberally, it appears that
Howard attempts to raise an unjust enrichment claim against Pine Tree and Newman. Namely, it
seems that he alleges that the payments for delinquent taxes made by Cameron on the property
that she did not own unjustly enriched Appellees, and those funds should be refunded.
Pine Tree responds, claiming in its Rule 91a motion, that the claim has no basis in law or
fact because Cameron’s payments qualify as a “voluntary payment” that Pine Tree need not
refund. Money voluntarily paid on a claim of right, with full knowledge of all the facts, in the
absence of fraud, deception, duress, or compulsion, cannot be recovered merely because the
4
We construe an appellant’s pro se brief liberally. See TEX. R. APP. P. 38.9; Giddens v. Brooks, 92 S.W.3d
878, 880 (Tex. App.—Beaumont 2002, pet. denied) (explaining pro se pleadings and briefs are to be liberally
construed); see also Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (stating a reviewing court
construes points of error liberally to obtain a just, fair, and equitable adjudication of the parties’ rights).
Nevertheless, a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable
laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); Interest of
A.E., 580 S.W.3d 211, 219 (Tex. App.—Tyler 2019, pet. denied). Otherwise, pro se litigants would benefit from an
unfair advantage over parties represented by counsel. Muhammed v. Plains Pipeline, L.P., No. 12-16-00189-CV,
2017 WL 2665180, at *2 n.3 (Tex. App.—Tyler June 21, 2017, no pet.) (mem. op.). “The appellate court has no
duty to brief issues for an appellant.” Interest of A.E., 580 S.W.3d at 219.
5
party at the time of the payment was ignorant of or mistook the law as to his liability. BMG
Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 768 (Tex. 2005).
When a plaintiff sues for restitution claiming a payment constitutes unjust enrichment, a
defendant may respond with the voluntary payment rule as a defense to the unjust enrichment
claim. XTO Energy Inc. v. Goodwin, 584 S.W.3d 481, 498 (Tex. App.—Tyler 2017, pet.
denied). In the taxation context, the voluntary payment rule secures (1) taxing authorities in the
orderly conduct of their financial affairs; (2) the government’s exceedingly strong interest in
financial stability; and (3) the age-old policy of discouraging litigation with the government.
Dall. Cty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 876-77 (Tex. 2005) (internal quotations
and citations omitted).
A mistake of law, such as Howard’s and Cameron’s mistaken belief that payment of the
delinquent taxes would result in the taxing authority providing them a deed, does not except
them from the voluntary payment rule. See id. at 773. Similarly, a reimbursement for a mistake
of fact is an exception to the voluntary payment rule, but it must be a mutual mistake of fact by
the parties, and there is no allegation that Pine Tree or Newman were operating under a mistake
of fact as to the payment of the delinquent taxes. See Salvaggio v. Houston Indep. Sch. Dist.,
709 S.W.2d 306, 308 (Tex. App.—Houston [14th Dist.] 1986, writ dism’d).
In any event, we need not evaluate these claims, because we hold that Howard lacks
standing to assert the claim he pleaded, and we are therefore without subject matter jurisdiction
to resolve the issue. Accordingly, without subject matter jurisdiction, the trial court properly
granted the Rule 91a motion and dismissed the suit, because it had no basis in law as pleaded by
Howard, even under a liberal construction of the petition, the exhibits he attached to the petition,
along with any reasonable inferences therefrom.
Specifically, the Rule 91a motion states as follows:
This case involves a claim by Plaintiff Preston L. Howard (“Howard”), a non-lawyer, on behalf of
Plaintiff Allison Cameron (“Cameron”), claiming that Defendants took personal property from the
Plaintiffs without due process. Specifically, Plaintiffs allege that Defendants refused to refund
taxes voluntarily paid by Cameron on a property she did not own.
The motion went on in relevant part as follows: “Howard has asserted no independent claim, and
to the extent Howard references Cameron’s claims, all taxes were paid voluntary[il]y by
Cameron.”
6
Pine Tree and Newman did not specifically file a plea to the jurisdiction, but by including
the above assertions in their Rule 91a motion to dismiss, arguably raised the subject matter
jurisdiction issue challenging Howard’s standing to institute the suit. At the time, Cameron was
also identified as a plaintiff, so Pine Tree and Newman’s motion went on to raise other
substantive challenges to Howard’s suit, such as application of the voluntary payment rule.
Irrespective of whether raised, we must address subject matter jurisdiction, of which Howard’s
standing is a component, on our own when warranted. Meyers, 548 S.W.3d at 484; Fin.
Comm’n of Tex., 418 S.W.3d at 580.
A careful review of Howard’s petition and attached exhibits, construed liberally, reveals
that he seeks a refund for the payments made by Cameron. He has not alleged any facts he was
personally injured. He failed to “plead facts that demonstrate that he, himself (rather than a third
party or the public at large), suffered the injury.” Farmers Tex. Cty. Mut. Ins. Co., 598 S.W.3d
at 241; Heckman, 369 S.W.3d at 154. The petition alleges that Cameron, a third-party, suffered
an injury by making the payments and that Pine Tree and Newman were unjustly enriched
thereby. 5 Howard initially named Cameron as a plaintiff in the suit, but he did so without her
authority. Specifically, at the Rule 91a hearing, Cameron appeared and the following colloquy
occurred:
MS. CAMERON: Okay. I was not -- Mr. Howard named me in this lawsuit, but I wanted
nothing to do with it.
THE COURT: Okay. So he’s not representing you.
MS. CAMERON: No.
THE COURT: And you didn’t give him authority to file this on your behalf?
MS. CAMERON: No.
THE COURT: Okay. So he just named you plaintiff without your permission?
MS. CAMERON: Yes.
THE COURT: Okay. So do you want me to take you out of this lawsuit?
MS. CAMERON: Yes.
5
Furthermore, Howard has not alleged any facts to show that he was authorized to have standing to enforce
Cameron’s rights as a third party. See, e.g., S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 305-08 (Tex. 2007).
(discussing third party standing). In fact, the pleadings and attached exhibits show that he has no standing to bring
this particular cause of action and suit.
7
THE COURT: Okay. I’m going to grant that relief. So you can stay if you want to, or
you
can leave.
MS. CAMERON: Okay.
THE COURT: Whatever you want to do. But legally, legally, he can’t put you in there
with plaintiffs unless, one, he’s an attorney; unless, two, he has your authority. So he just
named you as a plaintiff without your permission. He didn’t have a right to do that.
Mr. Howard, I’m not telling you what to do, but you can’t legally do that. You
understand
what I’m saying?
MR. HOWARD: I didn’t -- I didn’t know.
THE COURT: I know. That’s why I’m telling you now, so you don’t do that in the
future.
You can’t legally represent somebody unless you have a bar number and you have their
permission. You see what I’m saying?
MR. HOWARD: I understand all that.
THE COURT: Okay. You may not know the law, but there’s a law, barratry, where you
can’t legally -- you can’t legally represent somebody or claim to represent somebody
without their authority, one, and two, a law license. Do you understand?
MR. HOWARD: (Nods head up and down).
Howard also claims that the attached exhibits to his petition show that he suffered harm
in Pine Tree’s and Newman’s failure to refund the payments. We disagree. In fact, those
documents show the contrary. For instance, the receipts detailing the payments specifically
identify Cameron as the payor. He also points to the request for the refund, but that request is a
handwritten note authored and signed by Cameron, not Howard.
Without a particularized injury for which Howard could seek redress under the cause of
action he alleged, Howard lacks standing to maintain this suit, the trial court was without subject
matter jurisdiction to resolve it, and the trial court properly dismissed Howard’s suit. See TEX.
R. CIV. P. 91a.1; Farmers Tex. Cty. Mut. Ins. Co., 598 S.W.3d at 241; Heckman, 369 S.W.3d at
154.
Accordingly, Howard’s sole issue is overruled.
DISPOSITION
Having overruled Howard’s sole issue, the judgment of the trial court is affirmed.
8
JAMES T. WORTHEN
Chief Justice
Opinion delivered April 28, 2023.
Panel consisted of Worthen, C.J., Bass, Retired J., Twelfth Court of Appeals, sitting by assignment;
Hoyle, J. and Neeley, J., not participating.
9
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 28, 2023
NO. 12-22-00222-CV
PRESTON L. HOWARD,
Appellant
V.
PINE TREE I.S.D. AND MELISSA NEWMAN,
Appellees
Appeal from the 188th District Court
of Gregg County, Texas (Tr.Ct.No. 2022-837-A)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, all costs of this appeal are assessed against
Appellant, PRESTON L. HOWARD, and that this decision be certified to the court below for
observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment;
Hoyle, J. and Neeley, J., not participating.
10