James B. Bonham Corporation v. W.W. Webber, Inc. and W.W. Webber, LLC ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00425-CV
JAMES B. BONHAM CORPORATION,
Appellant
v.
W.W. WEBBER, INC. AND W.W. WEBBER, LLC,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. 11-19920-CV
MEMORANDUM OPINION
The James B. Bonham Corporation sued W. W. Webber, Inc. and W. W. Webber,
LLC, 1 for breach of a commercial lease agreement. Webber asserted that Bonham did
not have standing to bring the claim because Bonham was not the owner of the
property the subject of the lease. The trial court granted Webber's plea to the
1 Successor entity Webber, LLC answered on behalf of W. W. Webber, Inc. and W. W. Webber, LLC.
jurisdiction and dismissed the case for lack of jurisdiction. Bonham instituted this
appeal. We will reverse and remand.
Factual Background
On August 9, 2005, Bonham leased ten acres of land to Webber for the term of
three years. Webber leased the premises to operate a concrete crushing plant in
connection with an interstate 45 construction project. The lease terminated on August 9,
2008, and upon termination of the lease Webber was required to remove all material
and equipment from the premises except the original plant base surfacing. On August
9, 2010, Bonham filed suit alleging Webber breached the lease agreement when it did
not remove all material from the premises and did not leave the original plant base
surfacing on the premises. Before entering into the lease agreement Bonham
purportedly conveyed the leased premises by warranty deed to the United States
Invention Corporation by a deed dated March 7, 2003. The warranty deed was
subsequently recorded with the Navarro County Clerk on May 1, 2008. Because of the
purported conveyance Webber takes the position that Bonham does not have standing
to bring suit as a non-owner of the premises the subject of the lease. Webber filed a plea
to the jurisdiction which the trial court granted.
Issue One
In one issue Bonham argues that the trial court erroneously granted Webber’s
plea to the jurisdiction because fact issues were raised by Bonham.
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AUTHORITY
"Standing is a threshold requirement to maintaining a lawsuit." Farmers Tex.
County Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020) (citations omitted). "To
establish standing in Texas, a plaintiff must allege a concrete injury . . . and a real
controversy between the parties that will be resolved by the court." Id. at 241 (internal
quotes and citations omitted). "Specifically, the plaintiff must allege a threatened or
actual injury—it may not be hypothetical." Id. (citations omitted). A plaintiff's "alleged
injury must be concrete and particularized, actual or imminent, not hypothetical."
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 (Tex. 2008) (internal footnotes
omitted).
When a plea to the jurisdiction raises a question of standing, we review its grant
or denial de novo because standing is a component of subject matter jurisdiction.
Farmers, 598 S.W.3d at 240. Subject matter jurisdiction is essential to the authority of a
court to decide a case and as such is never presumed and cannot be waived. Tex. Ass'n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993). "In applying a de novo
standard of review to a standing determination, reviewing courts construe the
pleadings in the plaintiff's favor, but we also consider relevant evidence offered by the
parties." Farmers, 598 S.W.3d at 240 (citing In re H.S., 550 S.W.3d 151, 155 (Tex. 2018))
(internal quotes omitted). “[I]f 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.” Farmers, 598 S.W.3d at 241 (citing
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004)). When
Bonham v. Webber Page 3
considering this evidence, we “take as true all evidence favorable to the nonmovant”
and “indulge every reasonable inference and resolve any doubts in the nonmovant's
favor.” Miranda, 133 S.W.3d at 228. If evidence does create a fact question on a
jurisdictional issue the trial court cannot grant the plea to the jurisdiction. Id. at 227–28.
The fact issues will then need to be resolved by the finder of fact. Id. at 228. "If, after
examining the pleadings and any undisputed standing evidence, the court concludes
that standing does not exist, the case must be dismissed." Farmers, 598 S.W.3d at 241.
DISCUSSION
Webber's plea to the jurisdiction asserts that Bonham does not have standing to
bring its claim because Bonham did not own the property the subject of the commercial
lease agreement. Webber makes this argument because the warranty deed that
purports to convey the subject property from Bonham as grantor to the United States
Invention Corporation as grantee has been presented, along with other evidence, in
connection with Webber's plea to the jurisdiction. The warranty deed reflects that it
was filed with the Navarro County Clerk on May 1, 2008, and further reflects that it was
executed on March 7, 2003, by Tom Bennett, Jr. 2 Below Mr. Bennett's signature line his
name "Tom Bennett, Jr." is type written with no indication of the capacity in which he
executed the warranty deed. The corporate acknowledgement above the notary's
signature reflects that the deed was acknowledged before the notary by "Tom Bennett,
Jr., of United States Invention, a Texas Corporation, on behalf of said corporation." "The
2
At the time Tom Bennett, Jr. signed the warranty deed he was president of the James Bonham
Corporation and United States Invention Corporation.
Bonham v. Webber Page 4
general purpose of an acknowledgment is to authenticate an instrument as being the act
of the person executing the instrument." Onwuteaka v. Cohen, 846 S.W.2d 889, 894 (Tex.
App.—Houston [1st Dist.] 1993, writ denied) (citing Punchard v. Masterson, 100 Tex. 479,
101 S.W. 204, 205 (1907)); Shelton v. Swift Motors, Inc., 674 S.W.2d 337, 342 (Tex. App.—
San Antonio 1984, writ ref'd n.r.e.). The deed does not reflect that it was executed by a
representative of the grantor, the James B. Bonham Corporation. Section 5.021 of the
property code requires that an instrument of conveyance "must be in writing and must
be subscribed and delivered by the conveyor or by the conveyor's agent authorized in
writing." TEX. PROP. CODE ANN. § 5.021 (emphasis added); see Green v. Canon, 33 S.W.3d
855, 858 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The Texas Supreme Court
has recognized that a deed without a valid acknowledgement is still valid between the
grantor and grantee. Haile v. Holtzclaw, 414 S.W.2d 916, 928 (Tex. 1967).
The record before us does not address the warranty deed's acknowledgement on
behalf of the grantee or the capacity in which Tom Bennett, Jr. signed the warranty
deed. Furthermore, whether the warranty deed constituted an actual conveyance was
not addressed or developed in the trial court. Based on the evidence presented in the
record before us there are fact issues regarding ownership of the subject property that
create a fact question on the jurisdictional issue of standing. We sustain Bonham's sole
issue on appeal.
Conclusion
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We reverse the trial court's grant of Webber's plea to the jurisdiction and remand
this cause to the trial court for further proceedings.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Reversed and remanded
Opinion delivered and filed December 22, 2021
[CV06]
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