NUMBER 13-11-00162-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

EVERHART INVESTMENT TRUST, Appellant,

v.

JON STRAND, BETH STRAND AND

RONALD GILSTAP, Appellees.

 

On appeal from the 36th District Court

of Bee County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Benavides

Appellant Everhart Investment Trust (“Everhart”) appeals the trial court’s grant of 

appellees Jon Strand, Beth Strand, and Ronald Gilstrap’s (collectively “Strand”) plea to 

the jurisdiction and motion for sanctions. By two issues, Everhart submits that (1) the 

trial court erroneously granted Strand’s plea to the jurisdiction; and (2) the trial court 
2

abused its discretion in amending its final order to include sanctions against Everhart. 

Because we find no error and no abuse of discretion with respect to Everhart’s two 

issues, we affirm.

I. BACKGROUND1

In 2006, the federal Internal Revenue Service (“IRS”) filed a notice of tax lien2

against Everhart as “nominee, transferee, and/or alter ego of Samuel Watson and Esther 

Watson” in the Bee County property records. Later in the year, the IRS issued a levy and 

notice of seizure for all of the rights, title, and interest Everhart held in a 154.54 acre tract 

of land (“property”) located in Bee County. 

In December 2006, the Watsons, in the name of Everhart, filed suit in Nueces 

County District Court to challenge the tax lien asserted by the IRS. Everhart then filed 

two more suits in 2007 in Nueces and Bee Counties, respectively, again challenging the 

validity of the lien. All three state cases were subsequently removed to federal district 

court in the Corpus Christi Division of the Southern District of Texas. In March 2007, 

the IRS sold the property at public auction to Elise M. Hoting, and in June 2007, the 

federal district court that handled Everhart’s pending cases dismissed them for lack of 

subject-matter jurisdiction due to Everhart’s failure to comply with statutory requirements 

for filing a refund suit. See 26 U.S.C.A. § 7422 (2012). 

The IRS eventually conveyed the property by quitclaim deed to Hoting in 2007, 

and Hoting later conveyed the property to Strand in July 2009. In late 2010, Everhart 

filed a petition for trespass to try title, see TEX. PROP. CODE ANN. § 22.001 (West 2000), in 

 

1

Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for 

it. See TEX. R. APP. 47.4.

2

The lien stemmed from Samuel and Esther Watsons’s prior federal income tax liabilities.
3

Bee County district court alleging that the IRS’s seizure and sale of the property violated 

Texas law and title should thus remain in Everhart’s name rather than in Strand’s. 

Strand answered Everhart’s suit and filed a plea to the jurisdiction.

After an evidentiary hearing, the trial court granted Strand’s plea to the 

jurisdiction, and, on Strand’s motion, later modified its order to sanction Everhart 

$10,000.00 in attorney’s fees. Everhart appealed. 

II. STRAND’S PLEA TO THE JURISDICTION

In his first issue, Everhart submits that the trial court erred in granting Strand’s 

plea to the jurisdiction. 

A. Applicable Law and Standard of Review

A trial court draws its power to decide a case from its subject-matter jurisdiction, 

and an absence of subject-matter jurisdiction may be challenged by a plea to the 

jurisdiction. See Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). 

The purpose of a plea to the jurisdiction is to defeat a cause of action “without regard to 

whether the claims asserted have merit.” Id. at 554. 

The question of whether a court has subject-matter jurisdiction is a question of law 

that is reviewed de novo. Tex. Dep’t. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 

226 (Tex. 2004). When deciding on a plea to the jurisdiction, we—like the trial 

court—may look beyond the pleadings and consider evidence relevant to jurisdiction in 

order to resolve the issues raised. See Miranda, 133 S.W.3d at 227 (citing Bland, 34 

S.W.3d at 555). If the evidence presented creates a question of fact regarding 

jurisdiction, then the trial court cannot grant the plea and should allow the issue to be 

decided by the fact finder. See Miranda, 133 S.W.3d at 228. However, “if the relevant 
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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. This review “mirrors” 

that of a summary judgment. Id. Therefore, when we review a plea to the jurisdiction, 

we “take as true all evidence favorable to the nonmovant and indulge every reasonable 

inference and resolve any doubts in the nonmovant’s favor.” Id.

B. Discussion

Strand argued to the trial court, and reasserts on appeal, that Everhart lacked 

standing to bring its trespass-to-try-title suit because Everhart lacked a justiciable 

interest in the property. We agree. 

“Standing is a pre-requisite to subject-matter jurisdiction,” Bland, 34 S.W.3d at 

553, and we focus on the question of “who may bring an action.” M.D. Anderson 

Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). For a party to have a justiciable 

interest to establish standing, there must be (1) a “distinct injury to the plaintiff;” and (2) 

“a real controversy between the parties” which will be decided by the judicial declaration 

sought. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (citing Tex. Workers’ Comp.

Comm’n v. Garcia, 893 S.W.2d 504, 517–18 (Tex. 1995)). A trespass to try title 

adjudicates real property rights, see Ely v. Briley, 959 S.W.2d 723, 727 (Tex. 

App.—Austin 1998, no pet.), and a “plaintiff in an action in trespass to try title must 

recover, if at all, on the strength of his or her own title and may not rely on the weakness 

of the defendant's title.” United Sav. Ass’n. of Tex. v. Villanueva, 878 S.W.2d 619, 622 

(Tex. App—Corpus Christi 1994, no pet.). 
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Here, Everhart alleged in its first amended petition that Strand entered onto its 

land based upon an insufficient deed acquired through an unlawful seizure. To counter, 

Strand introduced the following evidence to the trial court: 

(1) Everhart owned the property at the time the IRS filed a notice of federal 

tax lien in April 2006 at the Bee County real property records, see 26 

U.S.C.A. § 6321 (2012); 

(2) In October 2006, the IRS issued a levy and notice of seizure of the 

property pursuant to the April 2006 lien, see 26 U.S.C.A. § 6331 (2012);

(3) The IRS sold the property by public auction to Hoting for $200,000.00 in 

March 2007 and conveyed a quitclaim deed of the property to Hoting in 

October 2007, see 26 U.S.C.A. §§ 6335, 6338 (2012); [and]

(4) Hoting granted to Strand a warranty deed to the property in July 2009.

Examining these facts in a light favorable to Everhart, we conclude that Everhart 

did not have standing to maintain its suit because even assuming, without deciding, that 

Everhart experienced an actual injury by having its property seized, Everhart failed to 

show that a real controversy existed between it and Strand that could be resolved 

through a trespass to try title suit. See Brown, 53 S.W.3d at 305. Our review of 

Everhart’s pleadings, as well as the evidence put forth in the record, indicates that any 

controversy that may exist with regard to the method and procedure followed in the 

property’s seizure and sale directly involves the IRS, not Strand.3 Therefore, Everhart’s 

lack of standing in the underlying suit deprived the trial court of subject-matter 

jurisdiction. See Bland, 34 S.W.3d at 553; M.D. Anderson Cancer Ctr. 52 S.W.3d at 

708. 

We conclude that the trial court properly granted Strand’s plea to the jurisdiction 

 

3 We note that the record includes Everhart’s previous filings which challenged the IRS’s lien and 

subsequent seizure of the property. The challenges were filed in state court, later removed to federal 

court, and eventually dismissed for want of jurisdiction because Everhart failed to file a refund suit with the 

IRS as a statutory pre-requisite. See 26 U.S.C.A. § 7422 (2012). 
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and overrule Everhart’s first issue.

III. SANCTIONS ORDER

In his second issue, Everhart asserts that the trial court abused its discretion in 

awarding sanctions in favor of Strand. 

Everhart argues that “in light of the [analysis from issue one], sanctions were 

improper and were not within the Court’s discretion to grant.” This single-sentence 

contention insufficiently briefs the issue. See TEX. R. APP. P. 38.1(i) (requiring 

appellant’s brief to “contain a clear and concise argument for the contentions made, with 

appropriate citations to authorities and to the record). Accordingly, without considering 

the merits of the issue, we conclude that it has been inadequately briefed and therefore 

waived. See id.; Kansas City S. v. Port of Corpus Christi Auth. of Nueces County, 305 

S.W.3d 296, 303 (Tex. App.—Corpus Christi 2009, pet. denied). 

Everhart’s second issue is overruled.

IV. CONCLUSION

The trial court’s judgment is affirmed.

__________________________

GINA M. BENAVIDES,

Justice

Delivered and filed the

12th day of July, 2012.