Jane Vorwerk v. City of Bartlett and John Landry Pack, Mayor

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00001-CV
Jane Vorwerk, Appellant
v.
City of Bartlett and John Landry Pack, Mayor, Appellees
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 19-2155-CC1-4, THE HONORABLE JOHN MCMASTER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Jane Vorwerk challenges the trial court’s order granting appellees City
of Bartlett and its Mayor John Landry Pack’s plea to the jurisdiction. For the reasons explained
below, we affirm the trial court’s order.
BACKGROUND
This case arises out of an October 16, 2018 order issued by the Bartlett Municipal
Court declaring a 1986 Toyota mobile home to be a junk vehicle. The municipal court found that
defendant James Fredrick Hisle was the owner or person in lawful possession of the mobile home,
he was properly notified and appeared in person before the court, and he was afforded ample time
to remove the mobile home from his property under Ordinance Number 2013-05 of the Bartlett
Municipal Ordinances. 1 See generally Tex. Transp. Code §§ 683.071-.078 (Subchapter E, Junked
Vehicles: Public Nuisance; Abatement); see also id. §§ 683.074 (establishing that municipality or
county may adopt procedures that conform to Subchapter E for “abatement and removal from
private or public property or a public right-of-way of a junked vehicle or part of a junked vehicle
as a public nuisance”); .075 (providing that at least 10 days’ notice of nature of public nuisance
must be delivered to last known registered owner of nuisance, each lienholder of record of
nuisance, and owner or occupant of property on which nuisance is located). The municipal court
further ordered that if the mobile home was not immediately removed from the property, the City
would remove it under the provisions of the ordinance. The record does not reflect that anyone
appealed or otherwise challenged the municipal court’s order.
On May 23, 2019, Vorwerk filed a petition against the City and the Mayor in justice
court in Williamson County, alleging that the mobile home belonged to her and that the City
illegally took and towed it from storage at Hisle Auto Repair without due process and in violation
of the City’s ordinance and the Texas Constitution. The City and the Mayor filed a plea to the
jurisdiction. Vorwerk did not file a response, and the justice court granted the plea to the
jurisdiction and dismissed the case on July 9, 2019. Vorwerk appealed to the county court at law.
The City and the Mayor filed a plea to the jurisdiction in county court that was
substantively identical to their plea in justice court, asserting governmental and official immunity,
Vorwerk’s lack of standing, res judicata, and collateral estoppel. After conducting a hearing on
the plea, at which Vorwerk did not appear, the county court at law granted the plea to the
1 It appears from the record that even though Hisle was not the registered owner of the
mobile home, he was a defendant and was given notice of the municipal-court proceeding because
the mobile home was in his possession and located on his premises.
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jurisdiction. In its October 6, 2020 order granting the plea, the court concluded that it had no
subject-matter jurisdiction as to the allegations against the City and the Mayor and dismissed the
case. Vorwerk subsequently filed a motion for new trial, which the court denied after a hearing.
This appeal followed.
ANALYSIS
In her sole issue on appeal, Vorwerk asserts that the trial court erred by granting
the City and the Mayor’s plea to the jurisdiction and dismissing her case. Vorwerk argues that the
trial court should have construed the pleadings as a motion for summary judgment and that it erred
by disregarding the disputed issues that should have been construed in her favor. Vorwerk asserts
that she raised a fact issue concerning her ownership of the mobile home and the City’s lack of
notice to her before the City removed it from Hisle’s premises. We liberally construe Vorwerk’s
brief as challenging the City and the Mayor’s contentions in their plea that she lacks standing and
that governmental immunity bars her suit against them. In response, the City and the Mayor assert
that the trial court did not err by granting their plea and that because each independent ground
asserted in their plea is sufficient to support the trial court’s ruling, we must affirm the order
because Vorwerk has failed to address any of those issues raised in the plea. 2
2 The City and the Mayor also assert that both the justice court and the county court at law
in Williamson County lacked subject-matter jurisdiction over the case because the mobile home
was towed from 141 N. Dalton, Bartlett, Texas, which is located in Bell County. (The City of
Bartlett is located partly in Bell County and partly in Williamson County; its City Hall is located
in Bell County.) However, the City and the Mayor’s complaint that the events giving rise to
Vorwerk’s suit did not occur in Williamson County raises a venue challenge, not a jurisdictional
challenge. See Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (“Venue pertains solely to where a suit may be brought and is a different question from
whether the court has ‘“jurisdiction” of the property or thing in controversy.’” (quoting National
Life Co. v. Rice, 167 S.W.2d 1021, 1024 (Tex. [Comm’n App.] 1943)); see also Tex. Civ. Prac. &
Rem. Code § 15.002 (establishing general rule that lawsuits shall be brought in county in which
3
Standard of review
Whether a court has subject-matter jurisdiction is a question of law, and thus we
review de novo the trial court’s ruling on a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). The plaintiff bears the burden of affirmatively
demonstrating the trial court’s jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 544,
550 (Tex. 2019) (citing Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012)).
In this case, the City and the Mayor challenged the existence of jurisdictional facts
pled by Vorwerk, specifically challenging her ownership of the vehicle and the lack of a statutory
violation for which governmental or official immunity would be waived. The City and the Mayor
also asserted that Vorwerk’s suit is an impermissible collateral attack on the municipal court’s
order. In a case like this one, “in which the jurisdictional challenge implicates the merits of the
plaintiffs’ cause of action and the plea to the jurisdiction includes evidence, the trial court reviews
the relevant evidence to determine if a fact issue exists.” Miranda, 133 S.W.3d at 227. “[I]f the
relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial
court rules on the plea to the jurisdiction as a matter of law,” a standard that generally mirrors the
standard a trial court follows when ruling on a traditional summary-judgment motion. Id. at 228.
all or substantial part of omissions giving rise to claim occurred, county of defendant’s principal
office if defendant is not a natural person, or plaintiff’s county of residence). “Venue signifies the
county in which a plaintiff has the legal right to institute and maintain his suit, notwithstanding the
defendant’s objections. Jurisdiction means the power conferred upon a court by the Constitution
and laws to determine the merits of that suit as between the parties and to carry its judgment into
effect.” National Life Co., 167 S.W.2d at 1024 (citations omitted). Accordingly, Vorwerk’s filing
suit in Williamson County, not Bell County, does not implicate the Williamson County courts’
subject-matter jurisdiction over that suit, and the City and the Mayor have waived any objection
to venue by failing to present it to the trial courts. See Tex. R. Civ. P. 86.1 (establishing that
defendant waives objection to improper venue if objection is not made by written motion filed
before or concurrently with any other pleading, except special appearance).
4
When reviewing the trial court’s ruling on a plea like this one, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor. Id.
Standing
The key issue in this appeal is whether Vorwerk owned the mobile home at the time
of the municipal-court proceeding. Vorwerk alleged in her petition that the City illegally “took
my 1985 Toyota motor home” without the notice required by law, in violation of the City ordinance
and the Texas Constitution and that she was entitled to the return of her property or damages.
(Emphasis added.) In their plea to the jurisdiction, the City and the Mayor asserted that Vorwerk
had not shown and could not show that she is the record owner of the mobile home. They attached
an authenticated copy of the vehicle registration, which shows that the former owner of the vehicle
was Terry Strand of Bartlett, Texas, and the current record owner (after the municipal-court
proceeding) is the City.
Vorwerk did not file a response to the City and the Mayor’s plea, nor did she appear
at the hearing on the plea. In her appellate brief, Vorwerk concedes that she did not have the title
recorded, but she asserts that Terry Strand told the City that he had sold the mobile home, citing
to an unsworn January 14, 2019 declaration from Strand that she attached to her motion for new
trial. 3 See Tex. Civ. Prac. & Rem. Code § 132.001 (authorizing use of unsworn declaration
3 The City and the Mayor object to Vorwerk’s inclusion of documents that are not part of
the clerk’s record and request that we strike Vorwerk’s appendix, which includes Strand’s
declaration, in its entirety. We cannot consider documents attached as appendices to a brief if they
are not formally included in the appellate record. See, e.g., Burke v. Insurance Auto Auctions
Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied); see also Save Our Springs
All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 892 (Tex. App.—Austin 2010, pet. denied)
(“We are limited to the appellate record provided.” (citing Tex. R. App. P. 34.1 (describing
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subscribed by person making declaration as true under penalty of perjury). However, Strand’s
declaration does not raise a fact issue on Vorwerk’s ownership of the vehicle. Strand states that
he was the prior owner of the mobile home parked at Hisle’s auto-repair business and provides
details about the mobile home’s age and operability. Regarding the notice he received from the
City, Strand states: “When I got the letter from the Bartlett Police Dept., I told the Bartlett Police
Dept. that I did not own the 1985 Toyota mobile home and that I sold this mobile home.” He does
not state the name of the person to whom he sold the vehicle or whether he provided that name to
the City. Furthermore, we note that under Transportation Code Section 683.075, the City was only
required to provide notice to “the last known registered owner of the nuisance.” Tex. Transp.
Code § 683.075(a)(1) (emphasis added). Vorwerk did not submit any evidence that she owned the
mobile home at the time of the municipal-court proceeding. Therefore, because the relevant
evidence presented by the City and the Mayor was undisputed, that is, that Vorwerk was not the
registered owner, and because Vorwerk did not present any evidence that she was the owner of the
mobile home at the time of the municipal-court proceeding, we conclude that she did not raise a
fact issue concerning her ownership of the mobile home at the time of the municipal-court
proceeding.
Subject-matter jurisdiction is essential to a court’s power to decide a case, and
standing is a prerequisite to subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 553-54 (Tex. 2000) (citing Texas Ass’n of Bus. v. Texas Air Control Bd.,
852 S.W.2d 440, 443 (Tex. 1993)). A court has no jurisdiction over a claim made by a plaintiff
contents of appellate record)). Because the documents in the appendix that are relevant to our
analysis are included in the appellate record, including Strand’s declaration, we overrule the City
and the Mayor’s request to strike it.
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who lacks standing to assert it. Heckman, 369 S.W.3d at 150. The standing requirement “derives
from the Texas Constitution’s separation of powers among the departments of government, which
denies the judiciary authority to decide issues in the abstract, and from the Open Courts provision,
which provides court access only to a ‘person for an injury done him.’” DaimlerChrysler Corp.
v. Inman, 252 S.W.3d 299, 304 (Tex. 2008) (quoting Texas Ass’n of Bus., 852 S.W.2d at 444;
Tex. Const. art. I, § 13). To establish standing, “a plaintiff must be personally aggrieved; his
alleged injury must be concrete and particularized, actual or imminent, not hypothetical.” Id. at
304-05 (citations omitted).
Absent evidence showing that she was the owner of the mobile home at the time of
the municipal-court proceeding, Vorwerk cannot show an actual or threatened injury, and her lack
of injury prevents her from being “personally aggrieved” such that she has any personal stake in
the litigation. See The M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707-08 (Tex. 2001).
Because Vorwerk failed to raise a fact issue on the issue of her ownership of the mobile home, we
conclude that the trial court correctly ruled as a matter of law that Vorwerk lacks standing to pursue
her claims against the City and the Mayor. On this basis, the trial court properly dismissed the
case for lack of subject-matter jurisdiction. 4 See Heckman, 369 S.W.3d at 150-51 (“[I]f the
4 Having determined that Vorwerk lacks standing to pursue her suit, we need not address
her challenge to governmental immunity. See Tex. R. App. P. 47.1. And although the City and
the Mayor urge that the Court must affirm the trial court’s judgment because Vorwerk did not
address on appeal all of the independent grounds for their plea that may have supported that
judgment—the Mayor’s official immunity, res judicata, or collateral estoppel—these unchallenged
grounds are not grounds that would fully support the trial court’s judgment. See, e.g., S.W. ex rel.
A.W. v. Arlington Indep. Sch. Dist., 435 S.W.3d 414, 419 (Tex. App.—Fort Worth 2014, no pet.)
(“[I]f an independent ground may fully support the complained-of ruling or judgment, but the
appellant assigns no error to that independent ground, then we ‘must accept the validity of that
unchallenged independent ground . . . and thus . . . any error in the grounds challenged on appeal
is harmless because the unchallenged independent ground fully supports the complained-of ruling
or judgment.’” (quoting Britton v. Texas Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex.
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plaintiff lacks standing to bring any of his claims, the court must dismiss the whole action for want
of jurisdiction.”). We overrule Vorwerk’s sole issue presented on appeal.
CONCLUSION
Having overruled Vorwerk’s sole issue on appeal, we affirm the trial court’s order
dismissing her case against the City and the Mayor.
__________________________________________
Gisela D. Triana, Justice
Before Justices Goodwin, Triana, and Kelly
Affirmed
Filed: August 6, 2021
App.—Houston [1st Dist.] 2002, no pet.)). All three grounds are affirmative defenses, not
jurisdictional bars. See, e.g., Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 128 (Tex.
2015) (“Further, unlike sovereign immunity from suit, which as noted above may be raised in a
plea to the jurisdiction, official immunity is an affirmative defense that must be pled and proved
by the party asserting it.” (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.
1994)); City of Wimberley Bd. of Adjustment v. Creekhaven, LLC, No. 03-18-00169-CV,
2018 WL 5074580, at *5 (Tex. App.—Austin Oct. 18, 2018, no pet.) (mem. op.) (“[R]es judicata
is an affirmative defense.” (citing Tex. R. Civ. P. 94; Texas Highway Dep’t v. Jarrell,
418 S.W.2d 486, 488 (Tex. 1967)); Resendez v. Garcia, No. 04-05-00081-CV, 2005 WL 2654069,
at *3 (Tex. App.—San Antonio Oct. 19, 2005, no pet.) (mem. op.) (“Further, res judicata and
collateral estoppel are affirmative defenses under Texas Rule of Civil Procedure 94 and should be
treated as a ‘plea in bar,’ rather than as a plea in abatement or a plea to the jurisdiction. A plea in
bar may not properly be sustained at a preliminary hearing unless the parties agree to this procedure
or summary judgment procedure is utilized.” (citation omitted)). The Texas Supreme Court
explained in Jarrell the difference in the consequences of the two types of pleas—“a plea to the
jurisdiction, if sustained, would require a dismissal; . . . and a plea in bar, if sustained, would
require a judgment that the claimant take nothing.” 418 S.W.2d at 488 (citation omitted). In other
words, the grant of a plea to the jurisdiction results in dismissal without regard to the merits, while
a plea in bar is a judgment on the merits.
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