Opinion filed October 31, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00297-CV

__________

THE GANTER GROUP, L.L.C. D/B/A

THE GANTER GROUP, Appellant

V.

CHOICE HEALTH SERVICES, INC., Appellee

On Appeal from County Court at Law No. 2

Brazos County, Texas

Trial Court Cause No. 12-000089-CV-CCL2

M E M O R A N D U M O P I N I O N

In this appeal, The Ganter Group, L.L.C. d/b/a The Ganter Group sued 

Choice Health Services, Inc. to recover on a collections contract. Choice Health 

moved to dismiss the suit and alleged that The Ganter Group, L.L.C. d/b/a The 

Ganter Group had neither the capacity nor the standing necessary to bring the suit. 

Based upon its claim that capacity and standing were lacking, Choice Health took 

the position that the trial court had no jurisdiction in the case. The trial court
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entered an order in which it stated that it “finds in all things the motion to be 

supported, and FINDS in all things [Choice Health] is entitled to its plead-for 

relief; THEREFORE, the Court DISMISSES the above-numbered and titled 

cause.” Subsequently, however, the trial court entered its findings of fact and 

conclusions of law in which it concluded, as a matter of law, that The Ganter 

Group L.L.C. d/b/a The Ganter Group had no standing and that, therefore, the trial 

court had no jurisdiction. The trial court did not address the capacity issue in its 

findings and conclusions. We conclude that the trial court erred, and we reverse

the trial court’s order and remand for further proceedings.

Appellant alleges in its lawsuit that, in 2008, Choice Health accepted a 

proposal from The Ganter Group, an Oklahoma business, under the terms of which 

The Ganter Group was to review and collect certain unpaid Medicare claims. 

According to the proposal agreed to by Choice Health, all recovered amounts

would be remitted directly to Choice Health, and Choice Health would pay The 

Ganter Group 25% of the amount recovered. The Ganter Group agreed to submit 

invoices on a monthly basis, and Choice Health agreed to pay the invoices in full 

within thirty days. Past-due amounts would bear interest at the rate of 12% per 

annum.

Appellant also alleges that The Ganter Group recovered more than $139,000 

on behalf of Choice Health. In accordance with the contract, the funds were paid 

directly to Choice Health, and The Ganter Group submitted invoices to Choice 

Health for more than $38,000. The monthly invoices were dated from November 

2008 through April 2009 and a final invoice in September 2009. It appears from 

Appellant’s pleadings that Choice Health paid a portion of one invoice but failed to 

pay the balance due of $38,663.82. Demand letters were sent to Choice Health in 

March and in November 2009. In addition to the demand for payment, the demand 
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letters included a proposed six-month payout arrangement in an attempt to collect 

the invoices.

In June 2010, a lawsuit was filed in Brazos County, Texas, to recover 

damages from Choice Health for breach of the contract. The named plaintiff in 

that lawsuit was Ganter L.L.C. d/b/a The Ganter Group. Choice Health filed a 

“verified challenge to capacity and standing” and alleged that Ganter L.L.C. d/b/a

The Ganter Group, an Oklahoma business, was not registered with the Texas 

secretary of state as required by the Business Organizations Code. See TEX. BUS.

ORGS. CODE ANN. § 9.051(b) (West 2012) (“A foreign filing entity . . . may not 

maintain an action . . . unless the foreign filing entity is registered . . . .”). Without 

responding to the challenge, and before the trial court ruled on the motion, Ganter 

L.L.C. d/b/a The Ganter Group voluntarily nonsuited its claim without prejudice.

Subsequently, the Texas secretary of state issued a “Certificate of 

Formation” to The Ganter Group, L.L.C. On the certificate of formation, Lewis C. 

Ganter Jr. was listed as the sole manager, and an Oklahoma address was provided. 

“Ganter L.L.C. d/b/a The Ganter Group” then filed the instant suit against Choice 

Health in January 2012 for breach of the 2008 contract. In an amended petition 

filed in July 2012, the designated plaintiff was “The Ganter Group, L.L.C. d/b/a 

The Ganter Group.” Choice Health challenged the capacity of The Ganter Group, 

L.L.C. d/b/a The Ganter Group to sue on the contract because there was no privity 

between The Ganter Group, L.L.C. d/b/a The Ganter Group and Choice Health. 

Choice Health also challenged The Ganter Group, L.L.C. d/b/a The Ganter 

Group’s standing, claiming it had no justiciable interest in the outcome of the suit 

because The Ganter Group, L.L.C. d/b/a The Ganter Group was not formed until 

2011 and, therefore, could not have performed under the contract in 2008 and 

2009.
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In the trial court, Choice Health took the position that The Ganter Group, 

L.L.C. d/b/a The Ganter Group was not formed until after services were performed 

under the contract. It argued that, therefore, there was no privity of contract 

between it and The Ganter Group, L.L.C. d/b/a The Ganter Group and hence The 

Ganter Group, L.L.C. d/b/a The Ganter Group had no capacity to sue. Regarding 

the standing issue, Choice Health claimed that The Ganter Group, L.L.C. d/b/a The 

Ganter Group had no justiciable interest in the suit; that, because of the date that 

The Ganter Group, L.L.C. d/b/a The Ganter Group was formed, it could not have 

performed under the contract; and that “‘Texas Ganter, LLC’ [sic] is a complete 

stranger to [Choice Health].” The claim that The Ganter Group, L.L.C. d/b/a The 

Ganter Group has no justiciable interest in the suit is a jurisdictional one, and the 

privity-of-contract argument goes to capacity, which does not implicate 

jurisdiction. See John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 

645, 651 (Tex. App.—Dallas 2013, pet. denied). Therefore, our review of the trial 

court’s order of dismissal—which granted Choice Health’s motion in all things—is 

limited to whether Appellant has standing.

In order for us to ascertain Choice Health’s position on appeal, we must 

refer to the appellate record because Choice Health’s brief in this court contains no 

record references and no citations to authority. Instead, in its brief, Choice Health

states: “[Choice Health] will rely on the Court’s review of the Clerk’s Record for a 

complete revelation of the arguments and authorities used by the court below in 

reaching its very sound decision in this matter.” We have reviewed the clerk’s 

record, and we note that there is no reporter’s record.

Whether a 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). “We construe the plaintiff’s pleadings liberally, taking all factual 

assertions as true, and look to the plaintiff’s intent.” Heckman v. Williamson Cnty., 
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369 S.W.3d 137, 150 (Tex. 2012). When a party challenges the existence of 

jurisdictional facts, we consider relevant evidence submitted by the parties to 

resolve the jurisdictional issue raised. Miranda, 133 S.W.3d at 227. Regardless of 

the procedural vehicle used to challenge standing, we treat it like a plea to the 

jurisdiction because standing is a component of subject-matter jurisdiction. See 

Brown v. Todd, 53 S.W.3d 297, 305 n.3 (Tex. 2001); Bland Indep. Sch. Dist. v. 

Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction is a plea intended 

“to defeat a cause of action without regard to whether the claims asserted have 

merit.” Bland, 34 S.W.3d at 554.

The plaintiff must plead facts that affirmatively show that the trial court has 

jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 

1993). Through a plea to the jurisdiction, a defendant can challenge whether the 

plaintiff alleged sufficient jurisdictional facts and can challenge the existence of 

jurisdictional facts. See Miranda, 133 S.W.3d at 226–27. If the plaintiff’s 

pleadings affirmatively negate the existence of jurisdiction, or if the defendant 

offers undisputed evidence showing that the trial court lacked jurisdiction, the plea 

to the jurisdiction should be granted. Heckman, 369 S.W.3d at 150. If the relevant 

evidence is undisputed or fails to raise a fact question on the issue of jurisdiction, 

the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 

S.W.3d at 227; Bland, 34 S.W.3d at 555.

A party must have standing to bring a lawsuit because it is a component of 

subject-matter jurisdiction. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 

848 (Tex. 2005). The general test for standing requires a real controversy between 

the parties that will actually be determined by the judgment sought. Id. at 849. A 

party has standing to bring a claim if it has a sufficient relationship with the claim 

to have a justiciable interest in the outcome. Id. at 848. Furthermore, a party has 

standing when it is personally aggrieved, regardless of whether the party has the 
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capacity to bring the claim or whether the claim was brought in the correct 

capacity. Id. at 848–49.

In its first amended original petition, The Ganter Group, L.L.C. d/b/a The 

Ganter Group alleged that it was a Texas limited liability corporation doing 

business as The Ganter Group. Choice Health argued in its motion to dismiss that 

The Ganter Group, L.L.C. d/b/a The Ganter Group “cannot have performed any 

contract it asserts in its lawsuit” because, while its own pleadings show that it is a 

Texas limited liability company, the official records of the secretary of state show 

that “Plaintiff was not formed until August 12, 2011.” Choice Health attached the 

certificate of formation that was issued by the secretary of state, which reflects a 

filing date of August 12, 2011.

In The Ganter Group, L.L.C. d/b/a The Ganter Group’s response to Choice 

Health’s challenge to capacity and standing, it continually refers to itself as 

“Plaintiff” and states that the contract provided that “Plaintiff” would collect the 

accounts and Choice Health would pay amounts due under the contract. Further, 

the claim is made that “Plaintiff . . . fully performed its obligations under the 

contract.” In support of this contention, The Ganter Group, L.L.C. d/b/a The 

Ganter Group attached the affidavit of its sole manager, Lewis C. “Carl” Ganter Jr. 

Choice Health specifically adopts the Plaintiff’s facts regarding the procedural 

nature of the case.

The Ganter Group had standing to bring this lawsuit, and the trial court erred 

in holding that it did not. To hold otherwise would be to hold that no assignee, 

collateral or otherwise, nor subsequent holder of an account or rights under a 

contract, could ever sue on it. Such holding would contravene Section 9.051(b)(2) 

of the Business Organizations Code. Further, the “failure of a foreign filing entity 

to register does not . . . affect the validity of any contract or act of the foreign filing 
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entity.” BUS. ORGS. § 9.051(c)(1). The Ganter Group, L.L.C. d/b/a The Ganter 

Group’s sole issue on appeal is sustained.

We reverse the trial court’s order of dismissal and remand for further 

proceedings.

JIM R. WRIGHT

CHIEF JUSTICE

October 31, 2014

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.