Opinion filed August 29, 2014




                                      In The


        Eleventh Court of Appeals
                                    ___________

                                No. 11-12-00235-CV
                                    ___________

           THOMAS J. “TOM” SIBLEY, Appellant
                         V.
                VONDEAN LAWSON,
      INDEPENDENT EXECUTRIX OF THE ESTATE OF
    THEODORE MATTISON LAWSON, DECEASED, Appellee

                    On Appeal from the County Court at Law
                             Ector County, Texas
                       Trial Court Cause No. CC-19,833

                      MEMORANDUM OPINION
      This is an appeal from a summary judgment. VonDean Lawson, indepen-
dent executrix of the Estate of Theodore Mattison Lawson, deceased, filed a
collection suit against Thomas J. “Tom” Sibley on a promissory note. Lawson
ultimately filed a motion for summary judgment that the trial court granted. In
three issues, Sibley argues that the trial court erred in denying his motions to
dismiss and granting the motion for summary judgment. We reverse and remand.
                                     Background Facts
       Sibley executed a promissory note dated July 28, 2006, in the principal
amount of $105,706.74 payable to the “Estate of Theodore Mattison Lawson,
Deceased.” We will refer to this note as the “2006 note.” The estate filed suit on
the 2006 note against Sibley in October 2007. The caption on the original petition
named the Estate as the sole plaintiff. However, the opening sentence of the
original petition read: “COMES NOW, VonDean Lawson, Independent Executrix
of the ESTATE OF THEODORE MATTISON LAWSON, DECEASED,
hereinafter referred to as Plaintiff . . . .”
       Sibley answered the original petition in November 2007. In addition to a
general denial, he included a verified denial to the effect that he specifically denied
the amount claimed to be owed on the 2006 note. He did not include a pleading in
his answer challenging either the standing or capacity of the estate to file suit on
the 2006 note.
       Sibley subsequently filed a motion to dismiss in April 2011. He premised
the motion to dismiss in part on the allegation that “[a]n ‘estate’ of a decedent is
not a legal entity and may not properly sue or be sued as such.” He also sought
dismissal for want of prosecution.          The trial court denied Sibley’s motion to
dismiss on April 8, 2011. Lawson subsequently filed an amended petition on
April 15, 2011, naming herself in the caption as the sole plaintiff in her capacity as
executrix of the estate.
       The summary judgment order at issue in this appeal arises from Lawson’s
amended motion for summary judgment filed on January 18, 2012. It was set for
hearing on March 30, 2012. Sibley filed a written response to the motion for
summary judgment on March 21, 2012. He included a “MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION” in his response. Among
other things, Sibley alleged in his response that the estate did not have standing to
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assert a cause of action on the 2006 note because the estate did not loan him any
money. He additionally alleged that an estate “is not a legal entity that can loan
money.”
      Sibley also alleged in his response to the motion for summary judgment that
he executed the 2006 note because he had previously cosigned a bank note in
January 2005 with his friend, Ted Lawson (the decedent), for roughly the same
amount as the 2006 note. Sibley alleged that he believed that the estate had paid
the 2005 bank note at the time he executed the 2006 note. In this regard, the 2005
bank note was due to mature on April 13, 2005. However, the decedent died a few
days prior to the maturity date of the 2005 bank note. Sibley alleged that the 2006
note was not supported by consideration because the estate did not pay the 2005
bank note. He additionally alleged that neither the decedent nor the estate had
loaned him any money.       Sibley supported these allegations with an affidavit
attached to his response to the motion for summary judgment.
      The record does not reflect that Lawson filed a written reply to Sibley’s
summary judgment response.       However, counsel for Lawson appeared at the
hearing on the motion for summary judgment and lodged an oral objection to many
of the defenses alleged in Sibley’s response on the basis that Sibley did not plead
them in his answer. The trial court appeared to have sustained Lawson’s oral
objection at the hearing by stating: “I believe [Lawson’s counsel] is correct that I
can’t treat the response as a pleading of an affirmative defense.” The trial court
announced at the conclusion of the hearing that it would grant Lawson’s motion for
summary judgment. The trial court subsequently signed an order granting the
summary judgment. The trial court also entered a separate order on the same day
denying Sibley’s motion to dismiss for lack of subject-matter jurisdiction that was
set out in his response to the motion for summary judgment.


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                                              Analysis
       In his first issue, Sibley asserts that the trial court erred in denying his
motions to dismiss. He bases this contention on the argument that Lawson’s
original pleading was insufficient to invoke the jurisdiction of the court because an
estate is not a legal entity that can bring suit. We agree with Sibley’s contention
that an estate cannot sue or be sued. See Price v. Estate of Anderson, 522 S.W.2d
690, 691 (Tex. 1975). However, we disagree with his argument that the trial court
erred in denying his motions to dismiss based on this contention.
       Subject-matter jurisdiction is essential for a court to have the authority to
resolve a case. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex.
1999). Standing is implicit in the concept of subject-matter jurisdiction. See Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party
has standing when it is personally aggrieved, regardless of whether it is acting with
legal authority; a party has capacity when it has the legal authority to act,
regardless of whether it has a justiciable interest in the controversy. Nootsie,
Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996);
Armes v. Thompson, 222 S.W.3d 79, 82 (Tex. App.—Eastland 2006, no pet.). As
we noted in Armes, a decedent’s estate may have standing, but not capacity, to sue
or be sued. 222 S.W.3d at 82; see Price, 522 S.W.2d at 691. In general, only the
estate’s representative has the capacity to act on behalf of the estate. 1 Frazier v.
Wynn, 472 S.W.2d 750, 752 (Tex. 1971); Armes, 222 S.W.3d at 82.
       At the time that Sibley filed his first motion to dismiss, the estate was the
only “named” plaintiff. This was a defect in capacity. Lack of capacity is a
procedural defense, and it must be raised by a verified pleading in the trial court.
See TEX. R. CIV. P. 93(1); Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 56

       1
        There are exceptions to this requirement, such as when no administration is pending and none is
necessary. See Shepherd v. Ledford, 962 S.W.2d 28, 31–32 (Tex. 1998); Armes, 222 S.W.3d at 82.

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(Tex. 2003); Armes, 222 S.W.3d at 82.           A party who wishes to contest the
opponent’s lack of capacity to sue must do so in a verified plea in abatement. See
Mercure Co., N.V. v. Rowland, 715 S.W.2d 677, 680 (Tex. App.—Houston [1st
Dist.] 1986, writ refused n.r.e.). A challenge to a plaintiff’s legal capacity to sue is
properly raised by a verified plea in abatement and not by a motion to dismiss. See
M & M Constr. Co. v. Great Am. Ins. Co., 747 S.W.2d 552, 554 (Tex. App.—
Corpus Christi 1988, no writ). Because Sibley was essentially challenging the
estate’s capacity to sue, his motion was in essence a plea in abatement. See id.
      A plea in abatement is a plea setting forth some obstacle to the further
prosecution of the cause until it is removed, and if it is sustained, the proper action
is to abate the cause until the impediment is removed. See Mercure, 715 S.W.2d at
680. The trial court did not err in overruling Sibley’s initial motion to dismiss
because he did not have a verified pleading challenging the estate’s capacity.
Werner v. Colwell, 909 S.W.2d 866, 870 (Tex. 1995) (The failure to verify a
pleading required to be verified under Rule 93 generally waives any complaint that
the trial court ruled adversely to the plea.). Moreover, the proper remedy would
have been to abate the cause of action until the defect in capacity could be
corrected. Lawson corrected the capacity defect by filing an amended pleading
approximately one week after the trial court entered its order denying Sibley’s
initial motion to dismiss. By the time Sibley filed his second motion to dismiss (as
a part of his response to the motion for summary judgment), Lawson had corrected
any defect in capacity existing in the original petition.
      Sibley additionally alleged in his summary judgment response that the estate
did not have standing to sue on the 2006 note because the estate did not lend him
any money. Although standing is a matter involving subject-matter jurisdiction,
the trial court did not err in denying Sibley’s motion to dismiss. Sibley’s basis for
alleging a lack of standing contradicts the factual allegations contained in
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Lawson’s pleadings. The determination of whether a trial court has subject-matter
jurisdiction begins with the pleadings. Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004). The plaintiff has the burden to plead facts
affirmatively showing that the trial court has jurisdiction. Tex. Ass’n of Bus., 852
S.W.2d at 446. We construe the pleadings liberally in favor of the pleader, look to
the pleader’s intent, and accept as true the factual allegations in the pleadings.
Miranda, 133 S.W.3d at 226, 228.
      The focus in a standing issue is whether the party bringing the lawsuit has a
sufficient relationship with it so that there is a justiciable interest in the outcome.
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Taking
Lawson’s factual allegations as true, she alleged facts demonstrating an interest on
the part of the estate and her interest as the executrix of the estate in collecting the
2006 note that was expressly made payable to the estate.
      Sibley additionally contends that Lawson did not sufficiently plead facts
showing her authority to prosecute the suit on behalf of the estate.            Special
exceptions may be used to challenge the sufficiency of a pleading. See TEX. R.
CIV. P. 91; Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998). While Sibley
appeared to have filed special exceptions in conjunction with his first motion to
dismiss, the record does not reflect that he obtained a ruling on them. Moreover,
even if the trial court had determined that Lawson’s pleadings were not sufficiently
pleaded, the proper remedy would have been to give Lawson an opportunity to
amend the pleadings rather than dismissal. Parker v. Barefield, 206 S.W.3d 119,
120 (Tex. 2006). We overrule Sibley’s first issue.
      Sibley asserts in his third issue that the trial court erred in granting summary
judgment because there are unresolved fact questions precluding summary
judgment. We review de novo an order granting summary judgment. Travelers
Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).              When reviewing a
                                           6
summary judgment, we take as true all evidence favorable to the nonmovant, and
we indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003). The party moving for summary judgment has the burden of showing that
there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. Civ. P. 166a(c); Haase v. Glazner, 62 S.W.3d 795, 797
(Tex. 2001).
        In asserting the existence of genuine issues of material fact, Sibley relies on
various defensive theories that he admittedly raised for the first time in his
response to the motion for summary judgment. Lawson argues that Sibley’s failure
to plead these defenses in his answer precludes his reliance on them to defeat
summary judgment. Citing our opinion in Proctor v. White, 172 S.W.3d 649, 652
(Tex. App.—Eastland 2005, no pet.), Sibley contends that, in a written response to
a motion for summary judgment, a party can rely upon unpleaded defenses to
defeat summary judgment if the movant does not object to them. We held in
Proctor that the movant’s failure to object to unpleaded contentions to defeat
summary judgment resulted in those matters being tried by consent. Id. Lawson
counters Sibley’s response with the assertion that the oral objections she made at
the summary judgment hearing to Sibley’s unpleaded defenses were sufficient to
prevent them from being tried by consent. For the reasons set forth below, we do
not need to resolve the parties’ procedural dispute concerning unpleaded defenses. 2



        2
         We express no opinion on Lawson’s contention that her oral objections at the summary judgment
hearing were sufficient to prevent Sibley from relying upon unpleaded defenses set out in his response to
defeat the motion for summary judgment. See City of Houston v. Clear Creek Basin Authority, 589
S.W.2d 671, 677 (Tex. 1979) (“[B]oth the reasons for the summary judgment and the objections to it must
be in writing and before the trial judge at the hearing. . . . To permit ‘issues’ to be presented orally would
encourage parties to request that a court reporter record summary judgment hearings, a practice neither
necessary nor appropriate to the purposes of such a hearing.”).

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      Sibley argues that there is a fact question as to whether or not there was
consideration for the 2006 note. With regard to consideration for the 2006 note,
Lawson stated in her summary judgment affidavit that “Plaintiff obtained the [2006
note] after advancing funds to pay a debt owed by Defendant.” She also included
the 2006 note as part of her summary judgment evidence. The 2006 note identifies
Sibley as the “borrower” and the estate as the “lender.” Accordingly, the 2006
note identifies the transaction as a loan.
      In his summary judgment affidavit, Sibley outlined the connection between
the 2005 bank note and his execution of the 2006 note. He further stated that he
did not receive any of the proceeds of the 2005 bank note. Sibley stated that he
executed the 2006 note on the mistaken belief that the estate had paid the 2005
bank note. He attributed his execution of the 2006 note on the fact that he was
very ill at the time and was not aware of the disposition of the 2005 bank note.
      Consideration is a fundamental element of every valid contract. Roark v.
Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991); Belew v. Rector,
202 S.W.3d 849, 854 (Tex. App.—Eastland 2006, no pet.). In Belew, we discussed
the ways that a defendant may contest the issue of consideration. As we noted:
             The terms “failure of consideration” and “lack of consideration”
      have sometimes been used interchangeably, but they represent
      different defenses. Lack of consideration refers to a contract that
      lacks mutuality of obligation. Fed. Sign v. Tex. S. Univ., 951 S.W.2d
      401, 409 (Tex.1997). Failure of consideration occurs when, due to a
      supervening cause after an agreement is reached, the promised
      performance fails. US Bank, N.A. v. Prestige Ford Garland Ltd.
      P’ship, 170 S.W.3d 272, 279 (Tex.App.-Dallas 2005, no pet.). The
      distinction between the two is that lack of consideration exists, if at
      all, immediately after the execution of a contract while failure of
      consideration arises because of subsequent events.
202 S.W.3d at 854 n.4. We held in Belew that lack of consideration does not fall
within the definition of an affirmative defense that has to be pleaded under TEX. R.

                                             8
CIV. P. 94 because it does not provide an independent reason to find against the
plaintiff—it goes directly to the plaintiff’s cause of action. Id. at 854.
       Sibley’s contention regarding the consideration for the 2006 note is a “lack
of consideration” argument because he contends that no consideration ever existed
to support it. Accordingly, Sibley was not required to plead lack of consideration.
See id. Lawson addressed the consideration supporting the 2006 note by alleging
that she and/or the estate advanced funds to pay a debt owed by Sibley. Sibley
responded by denying that the funds were advanced to pay a debt he owed. Under
the applicable standard of review, we are required to take as true all evidence
favorable to Sibley, and we indulge every reasonable inference and resolve any
doubts in his favor. See Provident Life, 128 S.W.3d at 215. The parties’ dispute
regarding the consideration supporting the 2006 note is a genuine issue of material
fact that precludes summary judgment. Accordingly, we sustain Sibley’s third
issue. Because of our disposition of Sibley's third issue, we need not consider
Sibley’s second issue that also challenges the summary judgment.
                                           This Court’s Ruling
       We reverse the judgment of the trial court, and we remand this cause to the
trial court for further proceedings consistent with this opinion.




August 29, 2014                                                        JOHN M. BAILEY
Panel consists of: Wright, C.J.,                                       JUSTICE
Bailey, J., and McCall 3

Willson, J., not participating.



       3
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.

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