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                                   MEMORANDUM OPINION

                                           No. 04-07-00649-CV

                         SAN DIEGO INDEPENDENT SCHOOL DISTRICT,
                                         Appellant

                                                      v.

                                 VANTAGE SYTEMS DESIGN, INC.,
                                           Appellee

                      From the 79th Judicial District Court, Jim Wells County, Texas
                                    Trial Court No. 04-08-42696-CV
                             Honorable Richard C. Terrell, Judge Presiding

Opinion by:        Steven C. Hilbig, Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: August 20, 2008

AFFIRMED

           This is an interlocutory appeal from the trial court’s denial of a plea to the jurisdiction. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon 2008). Appellant San Diego

Independent School District (“SDISD”) contends the trial court erred in denying its plea to the

jurisdiction because the lack of contractual privity between Vantage Systems Design, Inc.

(“Vantage”) and SDISD deprived the trial court of subject matter jurisdiction. We affirm.
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                                                  BACKGROUND

         A group of rural entities was interested in obtaining a wireless telecommunications system.

The group included SDISD, Freer Independent School District, Ramirez Common School District,

Benavides Independent School District, Duval County, the City of Freer, Concepcion Civic Center,

and Realitos Civic Center, and referred to itself as Duval County C-Net (“C-Net”). In 2002, the

Texas Telecommunication Infrastructure Board (“TIF”) released a Request for Proposal (“RFP”),

which invited eligible entities interested in setting up a local community computer network1 to

apply for a grant. The grant would allow the entities to provide their citizens with Internet access,

giving them “full participation in the information-based economy.” The entities comprising C-Net

entered into an “Interlocal Collaborative Agreement” for the purpose of filing a grant application

with TIF. The agreement refers to the entities collectively as “Duval County C-Net.” In the TIF

grant application, the applicants were required to designate grant officials and a fiscal agent. C-Net

designated SDISD as its fiscal agent. TIF awarded C-Net a $250,00.00 grant. The grant money was

given to SDISD for administration.

         Before it even applied for the TIF grant, C-Net met with Vantage, an information services

vendor that provides wireless computer solutions. Vantage claims that as a result of that meeting,

it entered into a contract to construct and support a wireless network and web portal, which included

equipment and services, for SDISD individually rather than C-Net. Vantage contends the agreement

is embodied in a letter dated February 14, 2003, sent to Dr. Roberto Garcia, who was ultimately

designated by C-Net as the “authorized official” for purposes of the grant. SDISD counters that if




         1
          For purposes of the grant, a “community network” was “a website or portal that provides current and relevant
information, community technology centers to provide public access and technology training, and/or equitably distributed
public access points.”

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there was a contract, it was between Vantage and C-Net. SDISD claims it did not enter into any

contract with Vantage; it was merely acting as the fiscal agent for C-Net.

       It is undisputed that Vantage provided at least some of the equipment and services allegedly

contracted for, but contends it was prevented from completing its work by SDISD or its agents.

Vantage further claims SDISD “failed to pay the outstanding amounts due under the contract.”

Accordingly, Vantage brought suit for breach of contract against SDISD.

       In response to the suit, SDISD filed pleadings in which it challenged the trial court’s

jurisdiction and Vantage’s right to recover. These pleadings included, among other things, a plea

to the jurisdiction, a no-evidence motion for summary judgment, and a traditional motion for

summary judgment. SDISD made numerous arguments, including that it was not a party to the

contract, but if a contract existed it was between Vantage and C-Net. In a single order, the trial court

denied SDISD’s plea to the jurisdiction, no-evidence motion for summary judgment, and traditional

motion for summary judgment. SDISD timely perfected this interlocutory appeal.

                                             DISCUSSION

       SDISD brings a single issue on appeal, contending the trial court erred in denying its plea

to the jurisdiction. SDISD argues Vantage lacked standing to prosecute this action thereby

depriving the trial court of subject matter jurisdiction. SDISD’s argument is premised on the

contention that C-Net, not SDISD, was the party to any contract that Vantage entered into with

regard to the provision of a wireless communication system. In reviewing the trial court’s

determination in this case, we apply a de novo standard of review. See Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (holding that whether pleader has alleged

facts that affirmatively demonstrate trial court’s subject matter jurisdiction is question of law

reviewed de novo), “Standing is a prerequisite to subject-matter jurisdiction, and subject-matter

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jurisdiction is essential to a court’s power to decide a case.” M.D. Anderson Cancer Ctr. v. Novak,

52 S.W.3d 704, 708 (Tex. 2001). Accordingly, without subject matter jurisdiction, a court cannot

render a valid judgment. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 74-75 (Tex. 2000). The

requirement that a plaintiff have standing to assert a claim derives from two provisions in the Texas

Constitution. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008). The first is the

separation of powers doctrine, which precludes the judiciary from deciding abstract issues. Id. The

second is from the open courts provision, which provides court access only to those who have

suffered an injury. Id.; TEX. CONST. art. I, § 13. If a plaintiff lacks standing, the trial court has no

jurisdiction and must dismiss the entire case. Novak, 52 S.W.3d at 711.

       Standing focuses on who is entitled to bring an action, not on whom it may be brought

against. See Novak, 52 S.W.3d at 708; In re Guardianship of Archer, 203 S.W.3d 16, 23 (Tex.

App.–San Antonio 2006, pet. denied). To have standing, a plaintiff must be personally aggrieved

and must have suffered a concrete and particularized injury that is actual or imminent, not

hypothetical. Inman, 252 S.W.3d at 304-05; Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). In

other words, the standing doctrine requires that there be a real controversy between the parties that

will be actually determined by the litigation. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845,

849 (Tex. 2005). “A plaintiff does not lack standing simply because he cannot prevail on the merits

of his claim.” Inman, 252 S.W.3d at 305.

       In claiming Vantage’s lack of standing deprived the trial court of jurisdiction, SDISD has

confused the jurisdictional concept of standing with the contract defense of lack of privity. Compare

Novak, 52 S.W.3d 708 (holding standing is prerequisite to subject-matter jurisdiction) with

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) (recognizing lack of

privity of contract as defense). Standing is essential for a plaintiff to assert a claim for breach of

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contract; privity of contract is generally essential for a plaintiff to recover on a claim for breach of

contract. See id.

       It is undisputed that Vantage was a party to any contract that might exist regarding the C-Net

entities and the provision of wireless equipment and services. What is in dispute is whether such

a contract, if it existed, was between Vantage and C-Net or Vantage and SDISD. This dispute does

not concern Vantage’s standing to bring a breach of contract action; rather, it concerns Vantage’s

ultimate ability to recover against SDISD on such a claim. Vantage pled it had a contract, it

provided wireless equipment and services pursuant to the contract, and it was not properly

compensated for its performance. Based on its pleadings, Vantage was personally aggrieved, and

suffered a concrete and particularized injury. See Inman, 252 S.W.3d at 304-05. There is a real

controversy between Vantage and SDISD, which will actually be determined – either for or against

Vantage – in the breach of contract suit. See Lovato, 171 S.W.3d at 849. Vantage does not lack

standing simply because it may not ultimately prevail on the merits of its claim. See Inman,

252 S.W.3d at 305. Because the pleadings in this case show Vantage alleged it suffered injuries

caused by SDISD’s wrongful conduct, we hold it has standing to bring suit for those injuries, and

the trial court has jurisdiction to rule on the merits of its claim. See Miranda, 133 S.W.3d at 226.

       Accordingly, we overrule SDISD’s issue and affirm the trial court’s order.



                                                        Steven C. Hilbig, Justice




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