author: EVELYN V. KEYES, Justice.

text:
    Daphne SCARBROUGH, Appellant, v. The METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, Appellee.
    No. 01-08-00792-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 2010.

      Amanda Peterson, William A. Taylor, Andy Taylor & Associates, P.C., Houston, TX, for Appellant.
    Andrew M. Edison, Edison, McDowell, & Hetherington, L.L.P., Gene L. Locke, Andrews & Kurth, L.L.P., Johnny W. Carter, Neal S. Manne, Robert S. Safi, Sus-man Godfrey, LLP, Houston, TX, for Ap-pellee.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Daphne Scarbrough, argues that the trial court erred in granting the plea to the jurisdiction of appellee, the Metropolitan Transit Authority of Harris County (METRO). In seven issues, she argues that: (1) the trial court erred in finding that she had no standing to sue because METRO’S “Contract With the Voters” provides standing to property-tax payers and referendum voters; (2) the trial court erred in finding that she had no standing because even petition-signers, who have significantly less at stake, have previously been found to have standing to sue METRO over its “Main Street” Line; (3) the trial court erred in finding she had no standing because it improperly focused on how she voted rather than on whether she voted; (4) the trial court erred in finding she had no standing by misinterpreting the requisites for taxpayer standing in a way that would make it impossible for anyone to sue METRO; (5) the trial court erred by refusing to abate its hearing on METRO’S plea to the jurisdiction until after the fact finder resolved disputed fact issues; (6) alternatively, if the trial court was correct in granting METRO’S plea to the jurisdiction, it erred in ruling that Scarbrough take nothing and should have dismissed her case without prejudice; and (7) alternatively, the trial court erred by refusing to provide Scarbrough an opportunity to replead prior to dismissal of her case.

We modify the judgment and affirm as modified.

Background

In the late 1990s, METRO began to develop a plan known as METRO Solutions, which was intended to increase transit options in the METRO service area by adding new rail and bus lines and by making contributions to street improvements. On August 28, 2003, METRO’S board of directors approved resolution number 2003-93, providing notice of a special election

for the purpose of submitting to the qualified electors of the Metropolitan Transit Authority of Harris County, Texas ... a proposition to authorize METRO to issue bonds, notes and other obligations payable, in whole or in part, from seventy-five percent (75%) of METRO’S sales and use tax revenues for the acquisition, construction, repair, equipping, improvement or extension of METRO’S transit authority system, including the METRO Solutions transit system plan, as described herein, which includes bus service expansions and construction of extensions of METRO’S rail system known as “METRORail,” to approve such plan and construction of the METRORail and commuter line components thereof, and to dedicate twenty-five percent (25%) of METRO’S sales and use tax revenues through September 20, 2014, for street improvements and mobility projects, as authorized by law and with no increases in the current rate of METRO’S sales and use tax; and making other provisions related to the subject.

Metropolitan Transit Authority of Harris County, Resolution 2003-93 (Aug. 28, 2003) (“Resolution 2003-93”).

METRO attached a copy of its resolution number 2003-77 (“Resolution 2003-77”), calling the special election, as an exhibit to its notice of special election. This resolution stated, in part,

Section 14. METRO Agreements with the Voters. As authorized by Section 451.072 of the METRO Act and other applicable law, the Board hereby declares that, if a majority of the voters voting at the Election approve the Proposition, the following agreements will be binding on METRO and will constitute contracts with the voters in accordance with their terms and may not be repealed, altered or rescinded by any succeeding Board without voter approval at a subsequent election:
(a)The aggregate principal amount of bonds, notes or other obligations of METRO that are payable, in whole or in part, from seventy-five percent (75%) of METRO’S sales and use tax revenues and are issued pursuant to the authority granted at this Election will never exceed $64-0,000,000;
(b) Proceeds of the bonds, notes or other obligations authorized at the Election will be used to acquire, construct, repair, equip, improve or extend METRO’S transit authority system, including the METRO Solutions Plan, provided that the only portions of METRORail for which such proceeds may be used are new segments included in Phase II of METRORail, as more particularly described in Exhibit A-4;
(c) Approval of the Proposition at the Election constitutes approval of the METRO Solutions Plan, including the extensions and segments of ME-TRORail and the construction of the METRORail and Commuter Line Components thereof for purposes of the city charter of the City of Houston;
(d) METRO will not uhdertake the construction of any new segment of Phase II of METRORail with proceeds of the bonds, notes or other obligations authorized at the Election without first obtaining approval of the segment for federal capital assistance under applicable federal law and regulations or the commitment of a substantial amount of private funds;
(e) METRO’S Street Improvement Dedication will be in force and effect through September 30, 2014, in accordance with the terms of such dedication, as described in Exhibit B;
(f) Between November 1, 2009 and January 1, 2013, METRO will call an election seeking a local determination by voters regarding METRO’S continuing support after September 30, 2014 for improvements of the types described in Section 451.065 of the METRO Act;
(g) Prior to November 1, 2009, METRO will not call any other election seeking voter approval to authorize METRO to issue bonds, notes or other obligations to provide any rail facilities other than Commuter Line Component, as more particularly described in Exhibit A-8 and depicted in Exhibit A-9, which are hereby made a part of this Resolution; and
(h) METRO will not implement any increase in the rate of its currently existing, previously voted one percent (1%) sales and use tax.

(Emphasis added.)

Exhibit A-4, referenced in Section 14, paragraph (b) of Resolution 2003-77, provided the details of METRORail Phase II. In pertinent part, it stated:

METRORail Phase II generally consists of the following light rail segments or lines, including associated vehicles and facilities:
Westpark
• Approximately 6.6 miles westward from the Wheeler station on Phase I METRORail to the Hillcroft Transit Center, serving Greenway Plaza, West University, Bellaire and the Uptown/Galleria area. This segment or line will have approximately 4 stations.
Note: Final scope, length of rail segments or lines and other details, together with implementation schedule, will be based upon demand and completion of the project development process, including community input. The METRO Solutions Bus Component Park & Ride in the vicinity of Hobby Airport will be deferred until a later phase of the Southeast segment or line.

(Emphasis added.)

Finally, Exhibits A-8 and A-9, referenced in Section 14, paragraph (g) of METRO Resolution 2003-77, described the Commuter Line Components. Exhibit A-8 described the commuter line components, stating that they “generally consist” of “rail segments or lines, including associated vehicles and facilities,” along U.S. 90A, U.S. 290, and “other commuter rail corridors within the METRO service area as are found to be feasible.” This exhibit also contained the caveat that the “[f]inal scope, length of rail segments or lines and other details, together with implementation schedule, will be based upon demand and completion of the project development process, including community input.” Exhibit A-9 was a “Transit System Plan” mapping the various lines discussed in Exhibit A-8.

The special election occurred on November 4, 2003, and voters approved the METRO Solutions Plan.

According to the affidavit of METRO’S executive vice president, METRO’S board of directors decided in 2007 to pursue light rail as the preferred transit mode for several of the lines discussed in the METRO Solutions Plan due to several factors, such as changes in the profitability of particular bus routes and in the availability of federal funding. This affected the Westpark segment of light rail lines connecting the Wheeler Station and the Hillcroft Transit Center authorized in the 2003 referendum. According to Scarbrough’s pleadings, METRO currently plans to place a portion of that line in the center of the street on Richmond Avenue, where it will pass by Scarbrough’s property.

On May 23, 2007, Scarbrough filed this suit against METRO as a voter who opposed the METRO Solutions transit system plan in the 2003 referendum and as a residential property owner, commercial businesswoman and taxpayer in the City of Houston and Harris County, asserting claims for breach of contract, declaratory judgment, and unconstitutional impairment of contract and alleging that METRO was improperly implementing the terms of the November 2008 referendum election.

Scarbrough contends that Resolution 2003-93, with its exhibits, including Resolution 2003-77 authorizing the referendum and its exhibits, constitutes a “clear and unambiguous contract” between METRO and the voters and taxpayers and that METRO has failed to comply with the Resolution. She states that Metro has entered into a contract calling for early construction activities, whereas Resolution 2003-77 provides that METRO may not undertake the construction of any new segment of Phase II of METRORail with proceeds of the obligations authorized at the Election “without first obtaining approval of the segment for federal capital assistance.” She further states that cost estimates for the project exceed the $640 million authorized by the Resolution. Finally, she contends that “Section 14 of the Resolution specifies that the agreements contained in subparagraphs (a)-(h) may not be ‘repealed, altered or rescinded’ without voter approval at a subsequent election,” that “Section 14(c) makes clear that approval of the Resolution includes approval of the entire Metro Solutions Plan,” that METRO is “not complying with the routes specified in the Resolution,” and that the voters “did not authorize Metro to use any portion of Richmond Avenue for the portion of METRORail known as the West-park route.” Thus, she contends that the use of funds authorized by Resolution 2003-93 to construct any of the METRO-Rail project on Richmond is illegal.

Scarbrough alleges that she has standing as a voter and taxpayer of property taxes and of METRO’S use and sales tax because she will suffer significant financial damages “if METRO is allowed to proceed in violation of the Resolution.” She further contends that, because her property and business on Richmond run along one of the streets METRO is proposing to use for the Westpark route, her use and enjoyment of the property will be harmed by the line and that the construction, operation, and maintenance of the line will affect her property rights and severely disrupt her business.

METRO filed a plea to the jurisdiction, arguing that Scarbrough could not assert standing as a voter, taxpayer, or property owner and that she lacked standing to litigate any issue related to bus service or to challenge METRO’S distribution of “General Mobility Funds.” METRO also argued that several of Scarbrough’s issues were not ripe, were moot, or did not constitute justiciable controversies. Scarb-rough amended her pleadings to include additional facts in support of the trial court’s jurisdiction over the case, and she specifically argued that “[t]he case at bar demonstrates a legal and factual pattern where the merits are inextricably intertwined with certain jurisdictional facts,” and thus a fact finder was required to resolve fact questions regarding the jurisdictional issue. Scarbrough also filed a separate motion asking the trial court to abate its hearing on METRO’S plea to the jurisdiction until after a fact finder could address the “intertwined” facts pertaining to jurisdiction and the underlying merits.

The trial court denied Scarbrough’s motion to abate and subsequently held a hearing on METRO’S plea. On August 21, 2008, the trial court issued its “Order Granting METRO’S Plea to the Jurisdiction and Dismissing Case,” which stated,

The Court concludes that it does not have subject matter jurisdiction over Scarbrough[’s] legal claims — for all of the reasons set forth in Metro’s legal briefing. Therefore, the Court hereby grants Metro’s plea to the jurisdiction. The Court orders that Scarbrough takes nothing because she has no standing to pursue the claims asserted. This is a final order, disposing of all issues and all parties.

This appeal followed.

Standing

In her first four issues, Scarbrough argues that the trial court erred in finding that she did not have standing to bring her claims.

A. Standing Generally

Standing is implicit in the concept of subject-matter jurisdiction, and subject-matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Thus, standing is never presumed, cannot be waived, and can be raised for the first time on appeal. Id. at 443-45. We review standing under the same standard by which we review subject-matter jurisdiction generally. Id. at 446. Whether the trial court has subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

A plea to the jurisdiction is a dilatory plea, which is intended to defeat a cause of action regardless of whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The pleader must allege facts that affirmatively demonstrate the trial court’s jurisdiction to hear the case. Tex. Ass’n of Bus., 852 S.W.2d at 446. If a plea to the jurisdiction challenges the existence of jurisdictional facts, as here, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. See Bland, 34 S.W.3d at 555. 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 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. Id.

Generally, unless standing is conferred by statute, a plaintiff must demonstrate that he “possesses an interest in a conflict distinct from that of the general public, such that the defendant’s actions have caused the plaintiff some particular injury.” Williams v. Lara, 52 S.W.3d 171, 178 (Tex.2001); see also Tex. Ass’n of Bus., 852 S.W.2d at 446 (“The general test for standing in Texas requires that there (a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.”) (internal quotation omitted).

B. Voter Standing

In her first issue, Scarbrough argues that she has standing as a voter and taxpayer to challenge METRO’S planned use of bond and tax funds because representations made in exhibits attached to the notice of special election on the bond referendum created a “contract with the voters:” In her second issue, Scarbrough argues that she has standing as a voter because even petition-signers, who have less interest at stake than she does as a voter, have standing. In her third issue, Scarbrough argues that how she voted is immaterial and that the fact that she voted, “without more, is sufficient to trigger standing to complain over METRO’S inability or outright refusal to comply with contractual terms of the 2003 Referendum.” We first address Scarbrough’s claim that she has standing as a voter to challenge the proposed application of bond funds.

With respect to Scarbrough’s third argument, that she has standing as a voter in the 2008 referendum, without more, to challenge the proposed application of bond funds, we note that the Texas Supreme Court has pointed out that “[n]o Texas court has ever recognized that a plaintiffs status as a voter, without more, confers standing to challenge the lawfulness of governmental acts. Our decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large.” Brown v. Todd, 53 S.W.3d 297, 302 (Tex.2001). This limitation is informed by the two constitutional limitations on subject-matter jurisdiction— the separation of powers doctrine and Texas’s open courts provision — which both require “an actual, not merely a hypothetical or generalized grievance.” Id. Additionally, the Texas Supreme Court “has never recognized standing on the basis of the results — as opposed to the process — of an initiative election.” Id.

In Brown, a plaintiff asserted “that he possess[ed] an injury distinct from the general public because he voted in [the referendum at issue], his vote was for the prevailing side, and Mayor Brown’s executive order negated his vote.” Id. The court held,

[T]his proposed rationale for standing is too broad because the injury he identifies is not unique to him. Indeed, it is shared by all living Houstonians who were among the 198,563 electors who actually voted against the proposed ordinance. In no way does [the plaintiffs] status as a voter give him an interest sufficiently peculiar to satisfy our standing requirements.

Id. Similarly, Scarbrough’s status as a voter, without more, does not confer standing because she is challenging the results of the election, not the process by which it was conducted and she has not asserted an injury unique to her that is not shared by every other Houstonian who voted in the November 2003 referendum.

Scarbrough also argues, however, that she has standing as a voter under City of Houston v. Todd. 41 S.W.3d 289, 302 n. 21 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). In Todd, Robb Todd, a city counsel member, and Allan Vogel, a voter who had signed a petition for a referendum on the city ordinance granting METRO the right to construct a light rail line along Main Street, sued the City of Houston and METRO when the City refused to hold an election on the referendum. Id. at 292-93. The petition, which Vogel signed but Todd did not, stated that a vote of the citizens of Houston was required by the city charter before METRO could construct the Main Street light rail line. Id. at 293.

This Court ruled against Vogel and the other plaintiff on the basis of the City’s argument that the city charter provisions relied upon by the plaintiffs were preempted by provisions of the Texas Transportation Code and were not applicable to the complained — of ordinance. Id. at 295, 302. The Court did not address the issue of standing, except to state, “We note that appellee Vogel has standing....” Id. at 302 n. 21. The opinion cited Blum v. Lanier, which held that a qualified voter who spearheaded and signed an initiative petition had standing to challenge the form in which the referendum was put to the citizens. See 997 S.W.2d 259, 262 (Tex.1999). Scarbrough does not challenge the form in which Resolution 2003-93 was put to the voters. Thus, she has not shown that Todd is relevant to this case. See id. at 295-302. Rather, the applicable rule is that stated in Brawn, in which the supreme court held that a plaintiffs status as a voter, without more, does not confer standing to challenge the lawfulness of governmental acts, that the plaintiff must allege some injury distinct from that sustained by the public at large, and that the court “has never recognized standing on the basis of the results — as opposed to the process — of an initiative election.” Brown, 53 S.W.3d at 302.

Finally, Scarbrough contends that she has standing as a referendum voter and taxpayer to challenge METRO’S alleged violations of section 14 of Resolution 2003-77, attached as an exhibit to Resolution 2003-93, the resolution approved by the voters in the 2003 referendum. She argues that the Texas Supreme Court has held that the terms of resolutions and orders calling a tax or bond election to approve financial undertakings of a governmental body become a contract with the voters. Scarbrough cites several cases regarding “contracts with the voters” in her argument asserting that she has standing. See San Saba County v. McCraw, 130 Tex. 54, 108 S.W.2d 200, 202-03 (1937); Fletcher v. Howard, 120 Tex. 298, 39 S.W.2d 32, 34 (1931); Black v. Strength, 112 Tex. 188, 246 S.W. 79, 80 (1922); Moore v. Coffman, 109 Tex. 93, 200 S.W. 374, 374-75 (1918); Taxpayers for Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 676 (Tex.App.Dallas 2002, pet. denied). However, one of these, San Saba County, did not involve a suit of a citizen voter against a governmental entity; rather, it was a suit by a county attempting to compel the attorney general to approve the funding of certain road and bridge bonds. See San Saba County, 108 S.W.2d at 201. The remaining cases all address suits by voters who were also property taxpayers to require a governmental entity to use the bond funds for the purpose for which they were approved. See Fletcher, 39 S.W.2d at 32-33; Black, 246 S.W. at 80; Moore, 200 S.W. at 374-75; see also Taxpayers for Sensible Priorities, 79 S.W.3d at 675-76. Thus, we conclude that these cases are more properly characterized as taxpayer suits. See Bland, 34 S.W.3d at 555 (characterizing as taxpayer challenge action by taxpayers seeking permanent injunction against payments by school district under lease-purchase agreement for new high school that they claimed violated the Public Property Finance Act, Tex. Local Gov’t Code § 271.004, providing for voter approval of contracts for purchase or improvement of real property by school districts). Therefore, we address these cases in the next section.

We hold that Scarbrough’s status as a voter in the November 2003 bond referendum, without more, does not confer standing on her to sue METRO for its alleged misuse of bond funds whose issuance was authorized by the referendum.

We overrule Scarbrough’s first, second, and third issues insofar as they allege her standing as a voter in the November 2003 referendum.

C. Taxpayer Standing

In her first and fourth issues, Scarb-rough argues that she has standing to sue on METRO’S alleged “contract with the voters” as a voter and taxpayer. Scarbrough contends that METRO’S expenditure of public taxpayer funds on its current light rail plans would be illegal because those plans were not authorized by the 2003 resolution and referendum.

The Texas Supreme Court addressed taxpayer standing to sue a public entity for the alleged misappropriation of public funds in Bland. 34 S.W.3d at 549. The supreme court recognized the rule that,

[i]n general, taxpayers do not have a right to bring suit to contest government decision-making because, as we observed more than half a century ago in Osborne v. Keith, [142 Tex. 262, 177 S.W.2d 198 (1944) ] “[g]overnments cannot operate if every citizen who concludes that a public official has abused his discretion is granted the right to come into court and bring such official’s public acts under judicial review.”

Id. However, while recognizing that “taxpayers must show as a rule that they have suffered a particularized injury distinct from that suffered by the general public in order to have standing to challenge a government action or assert a public right,” the court also recognized the “long-established exception to this rule,” under which “a taxpayer has standing to sue in equity to enjoin the illegal expenditure of public funds, even without showing a distinct injury.” Id. at 555-56. The court recognized that the exception, “strictly limited, provides important protection to the public from the illegal expenditure of public funds without hampering too severely the workings of the government.” Id. at 556-57 (refusing to apply taxpayer exception where contract sought to be enjoined had already been performed and suit was, therefore, moot, and concluding that potential for disruption of government operations was too great to allow taxpayer with no special injury distinct from general public to sue to prohibit government for paying for goods and services already received).

Here, Resolution 2003-93 provided notice of a special election “for the purpose of submitting to the qualified electors of the Metropolitan Transit Authority of Harris County, Texas ... a proposition to authorize METRO to issue bonds, notes and other obligations payable, in whole or in part, from seventy-five percent (75%) of METRO’S sales and use tax revenues for the acquisition, construction, repair, equipping, improvement or extension of METRO’S transit authority system, including the METRO Solutions transit system plan, as described herein.” It is undisputed that METRO’S sole tax support comes from a one percent sales tax, and it is likewise undisputed that Scarbrough, a voter in the 2003 referendum on Resolution 2003-93, pays both this sales tax and property tax. Scarbrough argues, therefore, that her payment of this sales tax and her status as a landowning property-tax payer confer standing on her as a taxpayer to challenge METRO’S current plan for rail on Richmond as an illegal expenditure of public funds under the exception to the general taxpayer standing rule.

METRO argues that Scarbrough does not have taxpayer standing because the Texas Transportation Code restricts METRO from imposing ad valorem property taxes, and thus the only tax Scarbrough pays to METRO is the one percent sales tax, which the Texas Supreme Court has unequivocally held is insufficient to confer standing. Scarbrough argues that applying this rule to conclude that she lacks standing to sue METRO would make it impossible for anyone to sue METRO.

To support her claims that she has standing as a sales tax and property tax payer to challenge METRO’S alleged improper diversion of funds from the proceeds of obligations authorized to be issued by the 2003 Referendum, Scarbrough relies on Williams v. Lara, in which the Texas Supreme Court considered taxpayer standing to oppose the expenditure of public funds to support the Chaplain’s Education Unit (CEU) within the Tarrant County Corrections Center (TCCC). 52 S.W.3d at 175. One of the plaintiffs paid only sales tax; the other paid sales and property tax. The supreme court held that taxpayers may fall under the limited taxpayer exception to the general rule that a plaintiff must demonstrate that he possesses an interest in a conflict distinct from that of the general public. Id. at 179 (citing Bland, 34 S.W.3d at 556). “Taxpayers in Texas have standing to enjoin the illegal expenditure of public funds, and need not demonstrate a particularized injury.” Id. This limited exception to the general rule requires that the plaintiff be a taxpayer and that public funds be expended on the allegedly illegal activity. Id. The court further held that whether the plaintiff has taxpayer standing depends upon the type of tax she claims to have paid. Id.

In Williams, the supreme court expressly held that “paying sales tax does not confer taxpayer standing upon a party.” Id. at 180. In reaching this conclusion, the court reasoned:

Taxpayer standing is a judicially created exception to the general standing rule. We have already limited the applicability of this exception by narrowly defining the type of action a taxpayer can maintain. A taxpayer may maintain an action solely to challenge proposed illegal expenditures; a taxpayer may not sue to recover funds previously expended, or challenge expenditures that are merely “unwise or indiscreet.” Underpinning these limitations is the realization that “[gjovernments cannot operate if every citizen who concludes that a public official has abused his discretion is granted the right to come into court and bring such official’s public acts under judicial review.” Extending taxpayer standing to those who pay only sales tax would mean that even a person who makes incidental purchases while temporarily in the state could maintain an action. This would eviscerate any limitation on taxpayer suits. It would allow a person with virtually no personal stake in how the public funds are expended to come into court and bring the government’s actions under judicial review. This is not what this Court envisioned in crafting the taxpayer-standing exception.

Id. (internal citations omitted). Although the court held that the plaintiff who paid only sales tax lacked standing, it also held that the plaintiff who paid property taxes did satisfy the taxpayer requirement, and it stated that “[t]he dispositive issue regarding [his] standing is whether Tarrant County is actually expending public funds in operating the [allegedly unconstitutional entity, the CEU].” Id. at 180-81.

Because it was dealing with a case of first impression, the supreme court in Williams looked to federal cases dealing with the issue of “what constitutes expending public funds.” Id. at 181. The court stated that it would “look to the jurisprudence of municipal taxpayer standing to guide [it] in determining whether” the county was expending public funds in operating the CEU. Id. It cited multiple federal cases supporting the proposition that “[mjunicipal taxpayers need only establish that they pay taxes to the relevant entity, and that public funds are expended on the allegedly unconstitutional activity.” Id. It further stated that to be entitled to taxpayer standing a plaintiff “must prove that the government is actually expending money on the activity that the taxpayer challenges” and that “merely demonstrating that tax dollars are spent on something related to the allegedly illegal conduct is not enough.” Id. The court went on to state that the record in Williams established that the county was using- tax dollars to manage the allegedly unconstitutional CEU because county-paid employees oversaw, managed, and “spent a significant amount of the County’s time operating” the unit. Id. at 182-88. Implicit in this reasoning is the fact that the property tax paid by the plaintiff was paid to the county, the entity that was supporting the allegedly illegal activity.

Concerning Scarbrough’s standing as a taxpayer, we note that while the supreme court prohibited extension of standing to challenge the expenditure of public funds to someone who paid only sales tax, Scarb-rough does not fall into this category. The fact that she also pays property tax addresses the concern raised in Williams that “[extending taxpayer standing to those who pay only sales tax would mean that even a person who makes incidental purchases while temporarily in the state could maintain an action.” Id. at 180. However, this distinction is insufficient to overcome the bright-line rule in Williams that standing to challenge the expenditure of public funds as illegal cannot be derived from the payment of sales tax due to policy concerns. Thus, we must look to Scarb-rough’s standing as a property-tax payer.

The relationship between Scarbrough’s payment of property taxes here and the anticipated allegedly illegal expenditures by METRO is much more attenuated than the relationship between the expenditure of tax funds and the allegedly unconstitutional expenditure of those funds in Williams. In Williams, the plaintiff paid property taxes directly to the entity, Tar-rant County, which supported the allegedly illegal CEU activity in the TCCC. See id. at 181 (“To be entitled to municipal taxpayer standing, a litigant must prove that the government is actually expending money on the activity that the taxpayer challenges; merely demonstrating that tax dollars are spent on something related to the allegedly illegal conduct is not enough.”); see also Bland, 34 S.W.3d at 556 (explaining that exception allowing taxpayer standing to sue to enjoin expenditure of illegal funds is justified because “[w]hen a taxpayer brings an action to restrain the illegal expenditure ... of tax money, he sues for himself, and it is held that his interest in the subject-matter is sufficient to support the action”) (quoting Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94, 96 (1937)).

By contrast, in approving Resolution 2003-93, about which Scarbrough complains, the voters authorized the funding of the METRO transit system plan as described in the resolution by the issuance of bonds, notes and other obligations payable from METRO’S sales and use tax revenue, as well as by “federal capital assistance under applicable federal law and regulations or the commitment of a substantial amount of private funds.” See Resolution 2003-93 (proving notice of special referendum election and including as exhibit Resolution 2003-77, ¶¶ (a), (d), calling special election). The referendum did not authorize METRO to use any property taxes to fund the implementation of the authorized transit plan. Thus, Scarbrough cannot argue that any of her property taxes are being used to fund the complained-of activity.

The “contract with voters” cases cited by Scarbrough similarly fail to accord her standing. Each of these cases acknowledged the standing of property-tax payers obligated to pay through their taxes for bonds issued for public construction projects pursuant to voter approval in a bond election. Fletcher, 39 S.W.2d at 34; Black, 246 S.W. at 80; Moore, 200 S.W. at 374-75; Taxpayers for Sensible Priorities, 79 S.W.3d at 676. Each of these cases involved a suit brought by property taxpayers who had voted to issue bonds to be paid for from general tax revenues, in-eluding from their property taxes. See Fletcher, 39 S.W.2d at 82-33 (treating pre-election orders as contract between commissioners’ court and “electorate entitled to vote at said election” and overturning dismissal of voter and property-tax payer suit alleging diversion of proceeds from sale of bonds issued for use on certain public road); Black, 246 S.W. at 80 (holding that county commissioners’ court that had adopted order designating roads to be improved if bond issue carried could not designate other roads to be improved with proceeds of bonds after election contrary to “the will of those having to bear the bond burden”); Moore, 200 S.W. at 374-75 (in action by property owners subject to tax for bond issued pursuant to county bond election, affirming injunction against diversion of proceeds of bond sales to construction of bridge at different location than presented in petition for bond election); see also Taxpayers for Sensible Priorities, 79 S.W.3d at 675-76 (holding, following sale of general obligation bonds approved by city voters to develop waterway project and initiation of work on project, “It is elementary that the proceeds of bonds voted by the people must be expended for the purposes for which they were voted.”). Scarbrough does not have standing under the foregoing cases through her payment of property taxes because in each of those cases the bonds authorized burdened property tax payers, whereas the bonds and other obligations authorized to be issued by voter approval of Resolution 2003-93 are payable only from METRO’S sales and use tax revenues.

We decline to extend the very limited taxpayer exception to the general taxpayer standing rule based on the attenuated relationship between Scarbrough’s tax payments and the funding of METRO’S transit plan authorized by Resolution 2003-93.

We overrule Scarbrough’s fourth issue.

D. Standing as an Affected Property Owner

Scarbrough also impliedly contends that she does have a “personal stake in whether METRO complies with the Resolution” because METRO intends to construct a portion of the METRORail “right in front of her home and business.” Her petition alleges concerns over the disruption caused by the construction and other alleged dangers and inconveniences. However, Scarbrough concedes that “it is true that [she] is not alleging or currently able to prove that METRO has taken her property” and that “a takings claim is not yet ripe.”

Both ripeness and standing are components of subject-matter jurisdiction. McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 232, 234 (Tex.2001). Standing prohibits suits by those who are not personally aggrieved. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.2008). The ripeness doctrine prohibits suits involving “uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex.2001). An issue is ripe for decision when at the time a lawsuit is filed the facts are sufficiently developed “so that an injury has occurred or is likely to occur, rather than being contingent or remote.” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex.2000).

There was no evidence at the time the trial court ruled that METRO’S proposed construction would occur on any part of Scarbrough’s property or that she would be denied access to or restricted in the use of her property, nor do Scarbrough’s pleadings assert such claims. Rather, she concedes that as of the time of the trial court’s ruling, any claims she might have related to her use or enjoyment of her property or to a taking by METRO were not ripe for adjudication. Thus, Scarb-rough acknowledges and we agree that the likelihood of injury to her depended on factors too speculative to address at the time of the trial court’s ruling and that any such claims were, therefore, not ripe for decision. See Perry, 66 S.W.3d at 250; Gibson, 22 S.W.3d at 851-52.

We conclude that Scarbrough’s claims based on her status as a property owner were not ripe at the time of the trial court’s ruling, and thus this ground did not confer subject-matter jurisdiction on the trial court.

E. Standing Hearing & Opportunity to Replead

In her fifth issue, Scarbrough argues that the trial court erred by refusing to abate its hearing on standing until after a trial on the merits. However, standing is implicit in the trial court’s subject-matter jurisdiction to consider a case. Tex. Ass’n of Bus., 852 S.W.2d at 443. Thus, the trial court correctly considered the jurisdictional challenge raised by METRO before proceeding to a trial on the merits of Scarbrough’s claims. See id.

Scarbrough argues, however, that “[t]he case at bar demonstrates a legal and factual pattern where the merits are inextricably intertwined with certain jurisdictional facts.” Specifically, she argues that a jury trial was necessary to determine standing because the question of standing was intertwined with the merits of whether the resolution in question authorized METRO to construct a light rail line along Richmond Avenue. She argues, “This is precisely the type of situation that the Texas Supreme Court had in mind when it decided the Miranda case: ‘[i]f the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder.’ ” See Miranda, 133 S.W.3d at 227-28. We disagree.

The alleged contract with the voters upon which Scarbrough bases her claims consists of Resolution 2003-93, i.e., the bond proposition itself, together with its exhibits, which the 2003 referendum approved, not extraneous documents. See Taxpayers for Sensible Priorities, 79 S.W.3d at 676 (holding that extraneous documents were not part of contract with voters created by voter approval of bond proposition). Thus, the ripe issues raised in Scarbrough’s petition are questions of law regarding the construction of the terms of the Resolution, not questions of fact regarding the details of the Resolution’s implementation. The facts material to a determination of Scarbrough’s standing as to her ripe claims are complete, are jurisdictional, and are largely uncontested. No additional discovery is necessary to determine Scarbrough’s standing to assert her ripe claims, hence to decide the plea to the jurisdiction. See Bland, 34 S.W.3d at 555 (holding that we consider relevant evidence submitted by parties when necessary .to resolve jurisdictional issues raised); Miranda, 133 S.W.3d at 227-28 (holding that if relevant evidence is undisputed or fails to raise fact question on jurisdictional issue trial court rules on plea to jurisdiction as matter of law).

We overrule Scarbrough’s fifth issue.

In her seventh issue, Scarbrough argues that even if the trial court correctly determined that she lacked standing to bring her claim, it erred in refusing to allow her to replead.

If a plaintiff fails to plead sufficient facts affirmatively demonstrating the trial court’s jurisdiction, but the pleadings do not affirmatively demonstrate incurable defects in jurisdiction, he should be afforded the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

Here, the challenge to jurisdiction was not made based on Scarbrough’s pleadings, but on the jurisdictional facts presented in the trial court. Because the jurisdictional facts upon which we rely were largely uncontested and because Scarbrough has otherwise failed to indicate that there is any genuine fact issue to be resolved, and thus her lack of standing cannot be changed by merely repleading her case, we need not remand. See Miranda, 133 S.W.3d at 226-28 (“If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.... [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.”).

We overrule Scarbrough’s seventh issue.

Terms of Judgment

In her sixth issue, Scarbrough argues that, even if the trial court correctly determined that she lacked standing to bring her claims, it erred in issuing a take-nothing judgment against her, rather than dismissing her claims without prejudice. Scarbrough is correct that the trial court’s lack of jurisdiction prevented it from entering a judgment on the merits. See Tex. Ass’n of Bus., 852 S.W.2d at 443 (holding that standing is implicit in trial court’s subject matter jurisdiction to consider case). However, the trial court’s order here does not enter a judgment on the merits. Its order was titled “Order Granting METRO’S Plea to the Jurisdiction and Dismissing Case.” However, it stated, “The Court orders that Scarbrough takes nothing because she has no standing to pursue the claims asserted.” Thus, we modify the trial court’s order to make it clear that Scarbrough’s claims are dismissed for lack of jurisdiction and that the trial court’s judgment was not an adjudication on the merits of any claim she may have over which she is able to establish subject-matter jurisdiction.

We sustain Scarbrough’s sixth issue.

Conclusion

We modify the trial court’s judgment dismissing Scarbrough’s claims to clearly reflect that her case was dismissed for lack of jurisdiction and affirm it as modified.

      . We do not find it necessary to address the impact, if any, of Scarbrough’s vote for the losing side in the November 2003 referendum.

      . METRO argues that Scarbrough failed to preserve this complaint for appellate review. However, because her complaint is related to the jurisdiction of the trial court to enter the order, it can be raised for the first time on appeal. See Tex. Ass’n of Bus. v. Tex. Air Ctr’l Bd., 852 S.W.2d 440, 443-44 (Tex.1993).


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Marwa IMKIE, Appellant, v. The METHODIST HOSPITAL, Appellee.
    No. 01-08-00831-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 10, 2010.

      Marwa Imkie, Houston, TX, pro se.
    Tracy Jackson Cowart, Eggleston & Briscoe, LLP, Houston, TX, for Appellant.
    Matthew T. McCracken, De La Rosa & Chaumette, Oscar Luis De La Rosa, The De La Rosa Law Firm, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION ON REHEARING

ELSA ALCALA, Justice.

Appellant, Marwa Imkie, filed a motion for en banc reconsideration of our opinion on rehearing issued June 24, 2010 that upholds a summary judgment rendered in favor of appellee, The Methodist Hospital (hereinafter “Methodist”). Having received a response from Methodist, we withdraw our June 24, 2010 opinion and judgment, and issue this opinion and judgment in their stead. Because we withdraw our June 24, 2010 opinion, Imkie’s motion for en banc reconsideration is rendered moot. See Brookshire Brothers, Inc. v. Smith, 176 S.W.3d 30, 33 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (op. on reh’g) (noting that motion for en banc reconsideration becomes moot when motion for rehearing is granted and new opinion and judgment issue). In two issues in her original appellant’s brief, Imkie contends the trial court erred by granting the no-evidence motion for summary judgment filed by Methodist and by denying her motion for a new trial. We conclude that the trial court properly granted the motion for summary judgment and did not abuse its discretion by denying the motion for new trial. We affirm the ruling of the trial court.

Background

In 2006, Imkie slipped and fell outside Methodist’s pathology lab while working as a resident physician for the Baylor College of Medicine. Imkie alleges that she slipped due to a premises condition, the buildup of paraffin residue, and that Methodist was aware of this condition. Imkie filed a premises liability claim against Methodist.

Imkie was represented in her lawsuit by the Lanier Law Firm. When Lanier decided to stop representing Imkie, it gave her over three month’s notice of that intent before it filed a motion to withdraw in the trial court. The trial court granted the motion to withdraw 19 days after Lanier filed it.

Shortly after Lanier withdrew from the case, Methodist filed a no-evidence motion for summary judgment on grounds that Imkie had no evidence to prove the elements of her premises liability claim. Imkie, litigating pro se, did not file a response to the no-evidence motion but did show up at the hearing. The trial court granted summary judgment in favor of Methodist.

Imkie, acting pro se, timely filed a motion for new trial asking that the summary judgment be set aside so that she could hire an attorney and file a response to the motion for summary judgment. In the motion for new trial, Imkie acknowledged that she had received Methodist’s no-evidence motion, she had received notice of the summary judgment hearing, and she had not filed a written response to the motion. She contended she did not have sufficient time to obtain an attorney prior to the summary judgment hearing. Imk-ie’s pro se motion for new trial asserted that she was injured when she fell at the pathology laboratory due to paraffin on the floor and that Methodist was aware of the problem before her fall because she was told about others that had fallen there and that a mat had been requested. Imkie’s pro se supplement to her motion for new trial added the explanation that she believed her presence in court on the date of the summary judgment hearing was all that was required to respond to the motion for summary judgment and that she was unaware that a written response was necessary. Neither her motion for new trial nor her supplemental motion for new trial included any affidavit attesting to any of the facts contained in the motions, nor did they include a written response to the no-evidence motion for summary judgment.

The trial court held an evidentiary hearing concerning her motion for new trial. By then, Imkie was represented by an attorney. Imkie’s attorney did not provide a written response to the no-evidence motion for summary judgment, but he did provide Imkie’s testimony. Concerning the merits of her lawsuit, Imkie stated that she fell at the pathology laboratory due to paraffin on the floor that was not visible. She testified that she was told by several people that others had also fallen at that location. She said that a mat was not placed there even though, according to what the lab manager told her, one was available. Methodist objected to her testimony as hearsay and as being inconsistent with statements Imkie had made in her deposition. During cross-examination, Imkie acknowledged that a doctor who saw her after the fall did not believe that she was injured in a fall and that she had an illness that pre-existed the fall. After the hearing, the trial court denied Imkie’s motion for new trial. Imkie now appeals the grant of summary judgment and the denial of her motion for new trial.

Motion for Summary Judgment

In her first issue, Imkie argues the trial court erred by granting Methodist’s no-evidence motion for summary judgment.

A. Applicable Law

We review summary judgments de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A no-evidence motion for summary judgment must be granted if, after adequate time for discovery, the moving party asserts there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial, and the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. Tex.R. Civ. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex.2006).

A party who files a no-evidence summary judgment motion pursuant to Rule 166a(i) has essentially requested a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex.2006). When the movant files its motion in proper form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises an issue of material fact regarding the elements challenged by the motion. Id. at 582; Landers v. State Farm Lloyds, 257 S.W.3d 740, 744 (Tex.App.-Houston [1st Dist.] 2008, no pet.).

Absent a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i). Landers, 257 S.W.3d at 746; Michael v. Dyke, 41 S.W.3d 746, 751 (Tex.App.-Corpus Christi 2001, no pet.) (“[fjailure to respond to a no-evidence motion is fatal”); see Tex.R. Civ. P. 166a(i). If a nonmovant wishes to assert that, based on the evidence in the record, a fact issues exists to defeat a no-evidence motion for summary judgment, the nonmovant must timely file a response to the motion raising this issue before the trial court. Landers, 257 S.W.3d at 746 (citing Tex.R. Civ. P. 166a(i)).

The Rules of Civil Procedure require that a non-movant respond to a motion for summary judgment at least seven days before the summary judgment hearing. See Tex.R. Civ. P. 166a(c) (“Except on leave of court, the adverse party, not later than seven days prior to the date of the hearing may file and serve opposing affidavits or other written response.”). Rule 166a(c) further states, “No oral testimony shall be received at the hearing.” Id.

B. Analysis

Methodist filed a motion that identifies the elements as to which there is no evidence, and the motion is in a form that is neither conclusory nor a general no-evidence challenge. See Tex.R. Civ. P. 166a(i); Moreno, 201 S.W.3d at 688. Methodist’s no-evidence motion for summary judgment asserts it is entitled to summary judgment on Imkie’s premises liability tort claim because there is no evidence that

(1) an unreasonably dangerous condition existed on Methodist’s premises at the time of Imkie’s fall,
(2) Methodist had any knowledge of any unreasonably dangerous condition,
(3) Methodist failed to take reasonable steps to reduce or eliminate any risk caused by the condition of the premises,
(4) Methodist’s acts or omissions caused Imkie’s injuries in any way, and
(5) there was any malice, extreme risk of injury, or actual subjective awareness of such risk on the part of Methodist.

This no evidence motion for summary judgment challenges the elements of a premises liability claim, which are: (1) some condition on premises posed an unreasonable risk of harm; (2) the owner had actual or constructive knowledge of the condition; (3) the owner did not exercise reasonable care to reduce or eliminate the risk of harm; and (4) the owner’s failure to use such care proximately caused the plaintiffs injuries. See Moreno, 201 S.W.3d at 688. The record undisputedly shows Imkie received timely notice of Methodist’s summary judgment motion. See Tex.R. Civ. P. 166a(c). Imkie failed to file a written response to Methodist’s motion for summary judgment, as required by the rules governing summary judgments. See id. Furthermore, Imkie did not file a motion for leave to file an untimely response. Because Imkie failed to make any response to the no-evidence motion for summary judgment, we hold the trial court properly rendered summary judgment in favor of Methodist. Landers, 257 S.W.3d at 746 (holding trial court did not err in granting no-evidence motion for summary judgment in absence of timely response).

We overrule Imkie’s first issue.

Motion for New Trial

In her second issue, Imkie argues the trial court abused its discretion by denying her motion for a new trial.

A. Standard of Review

We review a trial court’s denial of a motion for a new trial for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex.2006). The trial court abuses its discretion if it acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Under an abuse of discretion standard, we view the evidence in the light most favorable to the trial court’s actions. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied). When we determine whether the trial court abused its discretion, we may not substitute our judgment for that of the trial court unless its decision was so arbitrary that it exceeded the bounds of reasonableness. Clarendon Nat’l Ins. Co. v. Thompson, 199 S.W.3d 482, 494 (Tex.App.Houston [1 Dist.] 2006, no pet.). Accordingly, we review the evidence submitted to the trial court in the light most favorable to that court’s ruling, draw all legitimate inferences from the evidence, and defer to the trial court’s resolution of conflicting evidence. Id.

B. Time to Retain New Counsel

Imkie contends she should be granted a new trial on the grounds that she was not given sufficient opportunity to retain new counsel for the summary judgment hearing. She asserts her response to Methodist’s motion for summary judgment was due on June 16, 2008, seven days before the summary judgment hearing, giving her only 14 days to find new counsel to respond to the motion. Imkie further claims her ability to locate new counsel was hindered by prejudicial statements made by opposing counsel and by the extent of her injuries.

The record shows that on December 26, 2007, the Lanier Law Firm notified her of its desire to withdraw as her counsel and two days later she signed an acknowledgment of that notification. On May 5, 2008, when the trial court granted Lanier’s motion to withdraw as counsel, Imkie had over five months to obtain new counsel, but did not. She did not file a motion for continuance of the summary judgment hearing and did not request permission to file a late response. Besides conclusory assertions regarding her injuries and statements about Methodist’s counsel’s motives, Imkie failed to provide any evidence that her failure to have counsel at the hearing was not due to her own fault or negligence. See State v. Crank, 666 S.W.2d 91, 94 (Tex.1984) (concluding that, where absence of counsel is urged as grounds for continuance, party must show that failure to be represented at trial is not due to party’s own fault or negligence) (citing Counts v. Counts, 358 S.W.2d 192, 200 (Tex.Civ.App.-Austin 1962, writ dism’d w.o.j.) (new trial will not be awarded to litigant whose counsel withdraws from case prior to trial but in time for litigant to engage services of another attorney)); Wilborn v. GE Marquette Med. Sys., Inc., 163 S.W.3d 264, 270 (Tex.App.-El Paso 2005, pet. denied) (applying holding in Crank to context of summary judgment hearing). We hold that the trial court did not abuse its discretion by denying Imkie’s motion for new trial. Cf. Landers v. Adelson, 788 S.W.2d 940, 941-42 (Tex.App.Fort Worth 1990, no writ) (holding no abuse of discretion in denying continuance when client voluntarily agreed to withdrawal of counsel and had almost four months to retain new counsel).

C. Craddock

Imkie asserts that the trial court erred by denying her motion for a new trial because she claims that she established each of the elements for a new trial under the equitable principles of Craddock. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). When a defaulting party moving for new trial meets all three elements of the Crad-dock test, then a trial court abuses its discretion if it fails to grant a new trial. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex.2009). In Craddock, the Texas Supreme Court held, that under equitable principles, a default judgment should be set aside when (1) the defendant establishes that the failure to answer was not intentional or the result of conscious indifference, but the result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no undue delay or otherwise injure the plaintiff. See Craddock, 133 S.W.2d at 126.

Although Craddock originally applied to defendants, this Court extended its equitable principles to a plaintiff whose case was dismissed for lack of prosecution. Rund v. Trans East, Inc., 824 S.W.2d 713, 717-19 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (holding that plaintiffs met burden to establish first element because evidence showed “the reason for appellant’s failure to timely file a motion to reinstate was directly attributable to reasonable reliance on misinformation and actions of the court officials” and other two elements were undisputed).

1. Mistake or Accident

Imkie, the plaintiff seeking equitable relief for a summary judgment rendered against her, does establish the first modified Craddock element that requires proof that the underlying judgment was not due to intentional conduct or the result of conscious indifference on her part but was due to a mistake or an accident. Craddock, 133 S.W.2d at 126. Imkie does not assert that she received any erroneous information from a court official or that she lacked notice of the proceedings. Rather, the sole reason Imkie asserts to excuse her failure to respond to the motion for summary judgment is her mistaken belief that all she had to do to respond to the motion for summary judgment was to appear in person without the need for filing a written response. Imkie asserts her case is like Wheeler v. Green, 157 S.W.3d 439 (Tex.2005).

The Texas Supreme Court extended Craddock to summary judgments under limited circumstances where a pro se non-movant appeared in person but mistakenly did not respond in writing to a matter-of-law summary judgment motion. Wheeler, 157 S.W.3d at 442. In Wheeler, based on sixty-four deemed requests for admissions, the trial court granted summary judgment, terminating Sandra Wheeler as joint managing conservator of her daughter and taking other actions against her. Id. at 441. The attorney for the father of the child “neglected to point out in his summary judgment motion that Sandra — appearing pro se — actually had filed responses six months before the motion was heard, but two days after they were due.” Id. (emphasis in original). “Sandra — still pro se — filed no response but attended the summary judgment hearing.” Id. Sandra thereafter obtained an attorney who filed a motion for new trial that asserted the requests for admission should not have been deemed admitted, attached her responses to the request for admissions that she had sent to counsel, argued that her responses had been timely sent, and asked that the summary judgment be set aside. Id. at 441-42. Sandra’s motion for new trial, however, did not include a response to the summary judgment, nor did she move for the court to allow her to file a late response to the motion for summary judgment, nor did she move to withdraw her deemed admissions. Id. at 442. The trial court denied the motion for new trial. Id.

One reason the Wheeler court gave for ruling for Sandra concerned the timing of her late response to the summary judgment. See id. The court said Sandra did not waive the arguments she presented in her motion for new trial because she did not realize until after judgment was rendered against her that her responses were late, that she needed to move to withdraw deemed admissions, and that she needed to file a response to the summary judgment raising her arguments. Id. The court distinguished Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex.2002), in which it had declined to give equitable relief under Craddock to a non-movant litigant who failed to timely respond to a summary judgment motion despite notice of the hearing. Wheeler, 157 S.W.3d at 442. In Carpenter, the nonmov-ant had “an opportunity before judgment was rendered to obtain a continuance or leave to file an untimely response.” Id. (citing Carpenter, 98 S.W.3d at 686).

In discussing why Sandra’s status as a pro se litigant required equitable relief where the similarly situated nonmovant in Carpenter did not, the court said,

We certainly agree that pro se litigants are not exempt from the rules of procedure. Having two sets of rules — -a strict set for attorneys and a lenient set for pro se parties — might encourage litigants to discard their valuable right to the advice and assistance of counsel. But when a rule itself turns on an actor’s state of mind (as these do here), application may require a different result when the actor is not a lawyer. Recognizing that Sandra did not know what any lawyer would does not create a separate rule, but recognizes the differences the rule itself contains.

Id. at 444 (citation omitted). The court stated, “And while Sandra did not move to file a late response to the summary judgment motion, she came to argue her case at both hearings only because she was again mistaken as to what a summary judgment ‘hearing’ was.” Id. at 442.

Wheeler is similar to Imkie’s situation in that Imkie was a pro se litigant who appeared in court under the belief her appearance was all that was needed to respond to the motion for summary judgment. See id. Imkie, therefore, meets the Wheeler test for establishing that her failure to respond to the motion for summary judgment and her failure to ask for an extension of time to respond to the motion for summary judgment were mistakes based on her misunderstanding of the law due to her status as a pro se litigant. See id. at 444.

2. Meritorious Claim

Setting up a meritorious defense under Craddock does not require proof “in the accepted sense.” Dolgencorp of Tex., Inc., 288 S.W.3d at 928 (quoting Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.1966)). This does not mean that the motion should be granted if it merely alleges that the defendant “has a meritorious defense.” Ivy, 407 S.W.2d at 214. Rather, the motion sets up a meritorious defense if it alleges facts that in law would constitute a defense to the plaintiffs cause of action and is supported by affidavits or other evidence providing prima facie proof that the defendant has such a defense. Dolgencorp, 288 S.W.3d at 928; Ivy, 407 S.W.2d at 214. Once such requirements are met, controverting evidence offered by the nonmovant should not be considered. Dolgencorp, 288 S.W.3d at 928. Without considering controverting evidence offered by Methodist, we examine whether Imkie has provided prima facie evidence of her claim. See id.

In Wheeler, the court examined the rules for summary judgments when determining whether a meritorious defense had had been shown. Wheeler, 157 S.W.3d at 442. Citing to the rules for matter-of-law summary judgments, the court said Sandra was not required to file a summary judgment response in order to prevail against a matter-of-law motion for summary judgment. Id. (citing Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999) (stating that, in matter-of-law summary judgment, nonmovant has no burden to respond to summary judgment motion unless movant conclusively establishes its cause of action or defense and trial court may not grant summary judgment by default when movant’s summary judgment proof is legally insufficient)). In contrast, here, Methodist filed a no-evidence summary judgment motion, which required Imkie to respond with some evidence of each of the elements of her claim for premises liability if she was to defeat the motion. See Landers, 257 S.W.3d at 746.

We look to the substance of her arguments in her motion for new trial and to the evidence provided at the motion for new trial stage. See Wheeler, 157 S.W.3d at 442 (determining that Sandra’s motion for new trial and accompanying evidence that included Sandra’s responses to requests for admission sufficient to put trial court on notice of arguments to defeat summary judgment that had been rendered against her even though Sandra did not file response or request to file late response to motion for summary judgment). Imkie’s motion for new trial stated, “[H]ad I filed the proper response with affidavits timely showing that I had a prima facie case (which I can do), the Court would have overruled [Methodist’s] motion.” This conclusory statement is inadequate to establish a claim for premises liability. See Ivy, 407 S.W.2d at 214.

Imkie did testify at the hearing for the motion for new trial. Although her testimony did provide some evidence that there was an unreasonably dangerous condition in that there was invisible.paraffin- on the floor that caused her to fall, Imkie’s testimony failed to provide any facts or evidence that Methodist had any knowledge of the unreasonably dangerous condition and that Methodist failed to take reasonable steps to reduce or eliminate any risk caused by the condition of the premises. At most, Imkie showed that some people were aware of the problem and failed to correct it, but she did not show that those people were employees or representatives of Methodist. The evidence supplied by Imkie is inadequate to show a meritorious claim. See Dolgencorp of Tex., Inc., 288 S.W.3d at 928; Moreno, 201 S.W.3d at 688.

3. Undue Delay

Having determined Imkie failed to establish the second element in Craddock, we do not reach the element of undue delay.

We hold the trial court properly overruled Imkie’s motion for new trial that asserted the principles of Craddock. We overrule Imkie’s second issue.

Conclusion

We affirm the judgment of the trial court.

      . However, this Court subsequently stated that it would not apply the Craddock test to a bill of review proceeding when the party shows it relied on "a mistake of or erroneous information from an official court functionary,” as was the case in Rund. State v. Sowell, No. 01-94-00577-CV, 1995 WL 489139, at *2 n. 2 (Tex.App.-Houston [1st Dist.] Aug. 17, 1995, no writ).


author: LEE GABRIEL, Justice.

text:
    Sergio VALDEZ a/k/a Sergio G. Martinez, Appellant, v. The STATE of Texas, State.
    No. 2-09-292-CR.
    Court of Appeals of Texas, Fort Worth.
    Sept. 16, 2010.

      Edmund J. Zielinski, The Zielinski Law Firm, P.C., Gainesville, TX, for Appellant.
    Janice Warder, Cooke County District Attorney, Gainesville, TX, Sue Korioth, Special Prosecutor for Cooke County District Attorney’s Office, Dallas, TX, for The State of Texas.
    PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
   MEMORANDUM OPINION

LEE GABRIEL, Justice.

Appellant Sergio Valdez, a/k/a Sergio G. Martinez, pleaded guilty before a jury to possessing one or more but less than four grams of cocaine with intent to deliver. The jury assessed his punishment at fifteen years’ confinement with a $5000 fine, and the trial court sentenced him accordingly.

In a single point on appeal, Appellant contends that the trial court erred by failing to admonish him on the range of punishment and on the potential deportation consequences of his plea. We affirm.

On the day his case was called for trial, Appellant informed the court that he intended to plead guilty. The State concedes that although the trial court gave Appellant some admonitions before seating the venire, those admonishments did not address the range of punishment.

During voir dire, however, the attorney for the State repeatedly explained that the punishment range for the offense was between two and twenty years’ confinement and that the sentence could be probated. Further, when Appellant’s counsel addressed the venire, he also discussed these issues, explaining that “the law provides for a range of penalty, minimum, two years; maximum, 20 years, and the possibility of probation.” Finally, the trial court interjected that the venire was obligated to keep an open mind about the range of punishment and to consider that certain facts and circumstances might justify probation whereas others could warrant imposing twenty years’ confinement.

When the jury was seated, the State’s attorney read the indictment and Appellant entered a plea of guilty. The parties then presented their cases on punishment. The first witness for the defense was Lupe Cano, Appellant’s sister-in-law. During cross-examination, she revealed that Appellant is not a U.S. citizen. When she had finished her testimony, the trial court excused the jury from the courtroom and said, “I did not realize until I just heard the testimony that the Defendant is a non-citizen; is that correct?” The State’s attorney confirmed Appellant’s noncitizen status, after which the following discussion took place:

THE COURT: Okay. At this time, I’m going to admonish him.
Now, Mr. Valdez, you understand or Mr. Martinez also known as Mr. Valdez, earlier — yesterday I questioned you about your entering a plea of guilty. You understand that? And you understood, sir, did you not, that you didn’t have to plead guilty; that you could have pled not guilty and gone to the jury? You understood that, did you not?
THE DEFENDANT: (Moving head up and down.)
THE COURT: You’re shaking your head. You’ll have to answer yes or no.
THE DEFENDANT: Yes.
THE COURT: Okay. And, Mr. Valdez, have you ever been accused of being mentally incompetent in a court of law?
THE DEFENDANT: No.
THE COURT: Okay. And have you understood all your rights as your attorney has explained them to you?
THE DEFENDANT: Yes.
THE COURT: And, again, you understood that you didn’t have to plead guilty, that you could have pled not guilty or no contest, correct?
THE DEFENDANT: Explain that to me.
THE COURT: You understood that you did not have to plead guilty, that you could have pled not guilty or no contest? You understood that? You’ll have to answer out.
THE DEFENDANT: Yes.
THE COURT: Okay. The Court has learned that — from the testimony that you’re not a citizen. As a noncitizen, you understand that a finding of guilt could result in your deportation? You’ll have to answer out.
THE DEFENDANT: Yes.
THE COURT: Could result in denial of your citizenship application?
THE DEFENDANT: Yes.
THE COURT: It could result in the — that your reentry into the United States could be denied if you ever left the country voluntarily. Did you understand that?
THE DEFENDANT: Yes.
THE COURT: And, Mr. Powers, is that something you had previously discussed with your client?
MR. POWERS [Counsel for Appellant]: At length, Your Honor, yes. And we have been in contact with the immigration attorney and been trying to coordinate certain legal aspects related to his defense because of this issue of non-citizenship and the pending application for his visa.
THE COURT: Okay. So you had admonished Mr. Valdez, Mr. Martinez prior to his entering his plea of guilty of those consequences of entering a plea of guilty and a finding of guilt?
MR. POWERS: Absolutely.
THE COURT: Is that correct, Mr. Valdez Martinez?
THE DEFENDANT: Yes.

Code of Criminal Procedure article 26.13 requires that, prior to accepting a plea of guilty or nolo contendere, the trial court shall admonish the defendant on the range of punishment and the effect that a conviction might have on a non-citizen. Tex.Code Crim. Proc. art. 26.13(a)(1), (4) (Vernon Supp. 2009); Bessey v. State, 239 S.W.3d 809, 812 (Tex.Crim.App.2007). Substantial compliance is sufficient unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the court’s admonishment. Tex.Code Crim. Proc. art. 26.13(c).

Appellant claims that the trial court erred by failing to admonish him regarding the range of punishment or the potential deportation consequences of his guilty plea. Although appellant did not raise these claims with the trial court, complaints that the trial court failed to issue proper admonishments may be raised for the first time on appeal. Bessey, 239 S.W.3d at 813.

The State concedes that the trial court did not properly admonish appellant as to the range of punishment and that although the trial court did admonish him on the possible deportation consequences of his plea, that admonishment was late in coming. Nonetheless, the State contends, appellant suffered no harm as a result because it is clear from the record that appellant was well aware of the range of punishment as well as the potential deportation consequences. We agree.

A trial court’s failure to give a proper admonition is subject to a rule 44.2(b) harm analysis. Id. That rule states that: “Any other [than constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Tex.R.App. P. 44.2(b); Bessey, 239 S.W.3d at 813 (footnote omitted). In applying Rule 44.2(b) to a failure to admonish, we consider the record as a whole to determine whether, in the particular case, the error affected the appellant’s substantial rights. Bessey, 239 S.W.3d at 813; Anderson v. State, 182 S.W.3d 914, 918 (Tex.Crim.App.2006). If it did, it is not harmless error. Bessey, 239 S.W.3d at 813.

A defendant is deemed to have notice of the punishment range, and the trial court’s failure to admonish on the punishment range does not affect the defendant’s substantial rights where the attorneys, with the defendant present, explain the specific range of punishment to the venire during voir dire. Garcia v. State, No. 2-09-164-CR, 2010 WL 1633412 at *1 (Tex. App.-Fort Worth Apr. 22, 2010, no pet.) (mem. op., not designated for publication) (citing Moore v. State, 278 S.W.3d 444, 447 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (holding failure to admonish on punishment range did not affect substantial rights when defendant was present while attorneys explained punishment range to venire during voir dire)); Stevens v. State, 278 S.W.3d 826, 827-28 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd) (holding that when defendant testified that his attorney had informed him of the punishment range, that he understood it, and where trial court and defense counsel had explained the punishment range to the venire in defendant’s presence, trial court’s failure to specifically admonish defendant as to the punishment range was harmless); Slaughter v. State, No. 2-07-050-CR, 2007 WL 3120688 at *6 (Tex.App.-Fort Worth Oct. 25, 2007, no pet.) (mem. op., not designated for publication) (holding failure to admonish on punishment range harmless where attorneys for both sides explained the issue during voir dire); Gamble v. State, 199 S.W.3d 619, 622 (Tex.App.-Waco 2006, no pet.) (holding prosecutor’s explaining punishment range to defendant at trial court’s direction and attorneys’ discussion of punishment range during voir dire rendered harmless trial court’s failure to admonish on punishment range); See Burnett v. State, 88 S.W.3d 633, 635, 640 (Tex.Crim.App.2002) (holding where record was “replete with statements concerning the applicable range of punishment,” trial court’s failure to admonish on the issue, although clearly erroneous, was harmless).

The record shows that the attorneys for both sides thoroughly went over the punishment range with the venire during voir dire in Appellant’s presence. Appellant, therefore, had notice of the punishment range before he entered his plea in front of the jury. Consequently, we hold that the trial court’s failure to admonish Appellant on the punishment range did not affect Appellant’s substantial rights and we disregard it. See Tex.R.App. P. 44.2(b); Burnett, 88 S.W.3d at 641; Moore, 278 S.W.3d at 447.

The record also shows that Appellant was well aware of the deportation consequences of his guilty plea before he entered his plea. Counsel for Appellant reported to the trial court that he had discussed the immigration consequences of Appellant’s plea with Appellant “at length” and that they had been working with Appellant’s immigration attorney in handling the immigration issues related to Appellant’s case. Further, Appellant agreed with the trial court that Appellant’s counsel had admonished him prior to his entering a guilty plea.

Considering the record as a whole, we have fair assurance that no substantial right was affected by the trial court’s error in failing to admonish Appellant regarding the range of punishment or the potential deportation consequences. See Bessey, 239 S.W.3d at 814. By the standard of Rule 44.2(b), the error was harmless.

Having overruled Appellant’s sole point on appeal, we affirm the trial court’s judgment.

      . See Tex.R.App. P. 47.4.

      . The State asserts in its brief that the prosecutor repeated the top end of punishment range — twenty years — over twenty times to various members of the venire. By our count, the prosecutor mentioned the range of punishment twice and the maximum — twenty years — twenty-two times.