AFFIRMED and Opinion Filed December 21, 2018 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-17-01261-CV 

SITINA ABDU, Appellant 

V. 

MESAY HAILU AND ELYAS GEBRESILASSIE, Appellees 

On Appeal from the 429th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 429-55610-2016 

MEMORANDUM OPINION 

Before Justices Francis, Evans, and Schenck 

Opinion by Justice Francis 

Sitina Abdu appeals the trial court’s orders dismissing without prejudice her fraudulent lien 

claim against her ex-husband Mesay Hailu and Elyas Gebresilassie. In four issues, Abdu 

challenges the trial court’s ruling that she lacked standing to bring the suit. For the reasons set out 

below, we affirm. 

 In February 2015, Abdu sued Hailu for divorce after Hailu went to Ethiopia and did not 

return. During the divorce proceedings, Abdu learned that the month before Hailu left, he sold the 

sole asset of a corporation (Mockingbird Skillman Mobil, Inc., “MSM”) in which he and Abdu 

were 50-50 shareholders. The asset was land with a gas station on Mockingbird Lane in Dallas. 

Proceeds from the sale were used to pay off the first lien on the property and a portion of an alleged 
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loan made by Gebresilassie to the corporation.1

 Gebresilassie asserts that, over a period of years, 

he made cash loans to MSM in the amount of $258,500, and the loans were ultimately reduced to 

a promissory note that was secured by a deed of trust executed in his favor against the corporate 

property. The proceeds of the sale did not cover the entire amount of the loan, and Gebresilassie 

agreed to release his lien in exchange for a partial payment of $150,141.93 so the sale could be 

completed. 

As part of her divorce action, Abdu sued Hailu and Gebresilassie for a fraudulent lien under 

chapter 12 of the Texas Civil Practice and Remedies Code, alleging the sale of the property was 

an attempt to deplete the community estate. She alleged MSM was a closely-held corporation in 

which she had an undivided 50 percent interest, and MSM purchased the land and gas station that 

Hailu later sold. She further alleged Hailu allowed a fraudulent lien to be filed on the property and 

allowed Gebresilassie to receive payment of $150,141.93 on the fraudulent lien at closing. Abdu 

sought damages, exemplary damages, and attorney’s fees. In her fourth amended petition, Abdu 

asserted she had “standing to pursue this action as a direct action” under Texas Practice as 

Remedies Code §§ 12.002 and 12.003; article 5.14(A) and (L) of the Texas Business Corporations 

Act, and sections 21.551 and 21.563 of the Texas Business Organizations Code.2

Gebresilassie filed a motion to dismiss the claim against him for lack of jurisdiction. He 

asserted his loan to MSM was evidenced by a promissory note which Hailu signed in his capacity 

as “president and sole owner” of MSM as well as a deed of trust signed by Hailu in his capacity 

 1

 The remaining funds were used to repay the first lien against the property. 

2

 The Texas Business Corporations Act has been superseded, and the provisions at issue can now be found at sections 21.551 and 21.563 of 

the business organizations code. Section 21.551 defines a derivative proceeding, and section 21.563 addresses closely held corporations. See TEX.

BUS. ORGS. CODE ANN. §§ 21.551, 21.563. 
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as president of MSM. He attached to his motion the promissory note, deed of trust, and Hailu’s 

affidavit of arm’s length transaction executed as part of the sale of the property. 

Gebresilassie argued that neither the Texas Business Corporations Act nor the Texas 

Business Organizations Code conferred standing on Abdu “to sue in her own name and for her 

own benefit on a cause of action that clearly belongs of MSM, even if she has been directly injured 

through injury to MSM.” Abdu filed a joint response to the motion and a “traditional no-evidence 

motion for summary judgment.” In the response, Abdu alleged she was “provided the cause of 

action and standing” against Hailu and Gebresilassie under section 12.003(a)(8) of the civil 

practice and remedies code, presumably as a “person who owns an interest in the real or personal 

property.”3

 Gebresilassie responded that the corporation owned the property, not Abdu. 

Following a hearing, the trial court granted Gebresilassie’s motion to dismiss for lack of 

jurisdiction and dismissed Abdu’s claim against him without prejudice. Abdu filed a motion to 

reconsider, which the trial court denied. (Abdu attached evidence to this motion.) A month later, 

the trial court granted Abdu a default divorce from Hailu and dismissed without prejudice her 

claim for fraudulent lien against him on the ground she lacked standing. This appeal followed. 

 In a plea to the jurisdiction, a party may challenge either the plaintiff’s pleadings or the 

existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 

755, 770 (Tex. 2018). When a plea to the jurisdiction challenges the pleadings, as Gebresilassie 

did here, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s 

jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 

(Tex. 2004). We construe the pleadings liberally in favor of the plaintiff and look to the pleader’s 

intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial 

 3

 Section 12.003(a)(8) grants standing in the case of a fraudulent lien to an “obligor or debtor, or a person who owns an interest in the real or 

personal property.” TEX. CIV. PRAC. & REM. CODE ANN. § 12.003(a)(8). 
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court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue 

is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. 

at 226–27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the 

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227. 

Shareholders of a corporation are not owners of the corporation’s assets. Reid Road Mun. 

Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 854 (Tex. 2011). A corporate 

shareholder lacks standing to sue in her own name or for her own benefit on a cause of action 

belonging to the corporation, even if the shareholder is indirectly injured through injury to the 

corporation. Mossler v. Nouri, No. 03-08-00476-CV, 2010 WL 2133940, at *4 (Tex. App.—

Austin May 27, 2010, pet. denied). This applies to closely held corporations and to sole 

shareholders. Mossler, 2010 WL 2133940, at *4. “Relatedly, any recovery on a corporate cause 

of action must be available to pay the corporations debts.” Id. 

We begin with Abdu’s third issue in which she complains the trial court erred in granting 

Gebresilassie’s motion to dismiss based on lack of standing. Abdu appears to argue that because 

she is a shareholder of a closely held corporation, she has standing to bring a direct action 

individually and on her own behalf for a fraudulent lien on the corporation’s asset. Relying on 

section 21.563(c) of the business organizations code, Abdu argues that “special rules authorize the 

trial court, if justice requires, to treat the derivative action as a direct action brought by the 

shareholder for the shareholder’s own benefit, and award recovery directly to that shareholder.” 

See Sneed v. Weber, 465 S.W.3d 169, 182 (Tex. 2015). 

While we generally agree with this proposition of law, Abdu’s argument misses the mark. 

Nothing in section 21.563(c) or Sneed dispenses with the need for a shareholder to bring the suit 

derivatively or in the name of the corporation. Abdu did not argue below, nor does she on appeal, 
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that she brought her claim derivatively, nor has she asked the trial court or this Court to treat her 

petition as a derivative action. 

Abdu’s latest petition specifically alleged she had standing to “pursue this action as a direct 

action.” While she may have been entitled to recover directly, “if justice required,” she could not 

bring a direct action. See Sneed, 465 S.W.3d at 182. Rather, as stated above, any viable fraudulent 

lien claim that could have been brought is a claim belonging to the corporation and has to be 

brought derivatively. See Mossler, 2010 WL 2133940, at *4. To the extent Abdu suggests section 

12.002 or 12.003(a)(8) of the civil practice and remedies code provides an independent basis for 

standing under the circumstances of this case, we disagree. Section 12.003(a)(8) allows “a person 

who owns an interest in the real or personal property” to bring an action to enjoin a violation or 

seek damages under chapter 12. TEX. CIV. PRAC. & REM. CODE ANN. § 12.003(a)(8). In her 

original brief, Abdu quoted portions of the language of sections 12.002 and 12.003, but she offered 

no analysis as to how these provisions provided her standing. In her reply brief, she asserted she 

has a “beneficial interest” in the corporate assets as a shareholder, which she contends is sufficient 

for standing. But Abdu has cited us to no authority that would allow us to ignore the law that a 

shareholder lacks standing to sue in her own name or for her own benefit on a cause of action 

belonging to the corporation; rather, the action must be brought derivatively. 

In short, Abdu is asserting a cause of action individually against Gebresilassie that belongs 

to MSM and is seeking damages personally for that alleged wrong, even though damages, if any, 

belong to MSM. Construing her petition liberally, we conclude Abdu’s pleadings do not contain 

sufficient facts to affirmatively demonstrate jurisdiction and instead affirmatively demonstrate an 
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incurable defect in jurisdiction. Accordingly, the trial court did not err in granting Gebresilassie’s 

motion and dismissing her claim against him.4 We overrule the third issue. 

In her fourth issue, Abdu complains the trial court erred by dismissing her action against 

Hailu and incorporates her previous argument. For the same reasons set out above, we likewise 

conclude the trial court did not err in dismissing her suit against Hailu based on lack of standing. 

We overrule the fourth issue. 

In her first and second issues, Abdu raises issues related to the sufficiency of the evidence 

to support the motion to dismiss or fact findings made by the court. We have concluded the trial 

court’s decision on standing was based on a review of the pleadings; thus, we conclude any 

findings are not material or necessary to our decision. See Cooke Cty. Tax Appraisal Dist. v. Teel, 

129 S.W.3d 724, 731 (Tex. App.—Fort Worth 2004, no pet.) (stating immaterial finding of fact is 

harmless and not ground for reversal). We overrule the first and second issues. 

We affirm the trial court’s judgment. 

171261F.P05 

 

 4

 To the extent Abdu has raised any new issues in her reply brief, we do not consider them. See Dallas County v. Gonzales, 183 S.W.3d 

94,104 (Tex. App.—Dallas 2006, pet. denied). 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

SITINA ABDU, Appellant 

No. 05-17-01261-CV V. 

MESAY HAILU AND ELYAS 

GEBRESILASSIE, Appellees 

 On Appeal from the 429th Judicial District 

Court, Collin County, Texas 

Trial Court Cause No. 429-55610-2016. 

Opinion delivered by Justice Francis; 

Justices Stoddart and Schenck participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

 It is ORDERED that appellee MESAY HAILU AND ELYAS GEBRESILASSIE 

recover their costs of this appeal from appellant SITINA ABDU. 

Judgment entered December 21, 2018.