                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

 JOEL ACOSTA,                                    §
                                                                  No. 08-08-00296-CV
                   Appellant,                    §
                                                                     Appeal from the
 v.                                              §
                                                                   448th District Court
 TRI STATE MORTGAGE COMPANY,                     §
                                                                of El Paso County, Texas
                   Appellee.                     §
                                                                    (TC# 2008-2402)
                                                 §


                                           OPINION

       Appellant, Joel Acosta (Acosta), complains in four issues that the trial court erred in denying

both his motion to dismiss for lack of jurisdiction and his motion for new trial, and in awarding

attorney fees. We reverse in part and affirm in part.

                                        BACKGROUND

                                  No-Answer Default Judgment

       On June 18, 2008, Appellee, Tri State Mortgage Co., (Tri State), filed suit against Acosta for

conversion, promissory estoppel, and fraud. Acosta was served with citation at 7:35 p.m. on July

16, 2008. Acosta did not file an answer.

       On August 15, 2008, in Acosta’s absence, the trial court conducted a default judgment

hearing. At the hearing, Tri State’s manager, Annette Roberts, testified that Tri State had closed a

loan to Acosta in September 2007, and thereafter sold the loan to Chase Bank. Upon receiving

paperwork from Chase Bank regarding the transaction, Ms. Roberts discovered that an error had

been made regarding Acosta’s escrow account in an amount over $8,000. Tri State informed Chase
Bank of its error. Ms. Roberts testified that Chase Bank informed Tri State that Chase had already

issued a check to Acosta instead of Tri State, and that Tri State would be responsible for recovering

the check from Acosta. Tri State contacted Acosta by telephone on November 2, 2007, and, more

than once, informed him that the check was issued to him in error and that upon receiving it, he was

not to deposit the check but, rather, was to return it to Tri State as the funds belonged to the

company. Ms. Roberts testified that Acosta stated that he had not received the check and would

bring it to Tri State if he received it. Two weeks later, on or about November 15, 2007, Tri State

contacted Acosta again and Acosta informed Tri State that he had not yet received the check. Tri

State again informed Acosta that he was to bring the check to Tri State and was not to cash the

instrument as it belonged to Tri State. Tri State attempted to reach Acosta by phone on December

2, 2007, but Acosta did not answer its calls. Tri State contacted Chase Bank and filed a complaint

with the reserve department in an attempt to track the check. On January 2, 2008, Tri State was

notified that Acosta had, in fact, received and deposited the check on November 2, 2007, the date

on which Acosta claimed that he had not received the check. Acosta began spending the funds on

November 5, 2007. The check was admitted into evidence. After realizing that Acosta had cashed

the check, Tri State issued a demand letter to Acosta on March 13, 2008, demanding that Acosta

return the money. Acosta did not return the money to Tri State. At the default judgment hearing,

Tri State requested exemplary damages, contending that Acosta’s conduct was fraudulent, malicious,

and grossly negligent, and reminded the trial court that Acosta made representations to Tri State

while knowing that he had already deposited and used Tri State’s money. Tri State’s counsel, Ms.

Forbes, requested attorney’s fees, which the trial court noted it did not see in the file. Stating that

she hoped the attorney’s fees were “there,” Ms. Forbes testified regarding the work she had

performed. The trial court thereafter entered a default judgment against Acosta, awarding Tri State
$8,243.28 in principal, $24,000 in exemplary damages, $1,500 in attorney’s fees, and other interest

and costs.

                                       Motion for New Trial

       One month later, on September 15, 2008, Acosta filed a motion for new trial. The following

day, Acosta filed an untimely-filed amended motion for new trial to which he had affixed two of his

own affidavits.

       In his timely-filed motion, to which no affidavits were attached, Acosta alleged that he had

failed to answer the suit because he was served with citation on the day before he and his family left

the state on a vacation that had been planned months in advance. The motion also alleged that, upon

his return from vacation one and one-half weeks later, Acosta’s employer allegedly directed him to

attend a mandatory out-of-town training that lasted approximately two weeks. Acosta returned on

August 11, 2008, contacted an attorney, and received an appointment for August 15, 2008. During

the appointment, Acosta’s attorney allegedly contacted the court and learned that the default

judgment had been entered that same day.

       In his motion, Acosta defended his conduct and contended that upon receiving the check, he

returned it to the issuing entity, Chase Bank, as he did not know the purpose of the check.

According to Acosta, Chase Bank held the check for three weeks and then notified Acosta that the

money belonged to him. After receiving an alleged confirmation from Chase Bank, and purportedly

in reliance upon it, Acosta deposited the check into his account at Chase Bank. Acosta asserted that

Tri State never contacted him nor informed him of any mistake that may have occurred regarding

the check until four months later, and he complained that neither Tri State nor Chase Bank explained

why Tri State, rather than Acosta, was entitled to the funds. Acosta did not present any evidence

from Chase Bank in support of his contentions.
       Acosta raised other issues in his motion for new trial. He complained that Tri State did not

request attorney’s fees and did not provide him with notice that attorney’s fees were being sought.

He also asserted that Chase Bank was an indispensable party that was improperly omitted from the

judgment and claimed that the failure to add Chase Bank as a party would deprive him of an

opportunity to pursue his claims. Again, Acosta produced no evidence from Chase Bank.

       Acosta requested that the trial court grant his motion for new trial as his failure to file an

answer was due to mistake or accident and was not either intentional nor the result of conscious

indifference, and contended that he responded to the suit quickly and prudently at his first available

opportunity after receiving service of process. Acosta also asserted that he had a meritorious defense

and at trial would show: (1) that he had acted upon the information provided to him by Chase Bank

and had not engaged in tortious conduct; (2) that he had not agreed to Tri State’s attorney’s fees,

which were not pled; and (3) that the exemplary damages awarded were excessive as his conduct did

not warrant a grant of exemplary damages. Acosta stated that a new trial would not delay or

prejudice Tri State, stated that he was both ready for trial and willing to reimburse Tri State for its

reasonable expenses incurred in obtaining the default judgment.

                                        Tri State’s Response

       Tri State responded to Acosta’s new trial motion with the affidavits of three Tri State

employees and a copy of the demand letter issued to Acosta. Ms. Roberts’ affidavit essentially

restated her default-judgment hearing testimony.

       In her affidavit, Ms. Lilly Velasquez, a Tri State accounting clerk, stated that during the last

week of September 2007, a mistake in Acosta’s escrow account was discovered. During the first

week of October 2007, Ms. Velasquez discovered that a check for $8,243.28 had been mistakenly

issued to Acosta rather than Tri State. During the week of October 8, 2007, Ms. Velasquez
telephoned Acosta at work, informed him that he would be receiving a check from Chase Bank,

which had erroneously been made payable to him instead of Tri State. She instructed Acosta to not

deposit the check, to return it to Tri State, and explained to him that the money belonged to Tri State

because it constituted an overpayment of escrow that was taken from the Tri State account. Ms.

Velasquez stated that Acosta informed her that he understood, agreed to return the money when he

got it, and promised to call her when he received the check. She again spoke with Acosta at work

on November 2, 2007, “confirmed” that he had not received the check, and instructed him to bring

the check to Tri State when he received it. Acosta again promised to call upon receiving the check

and informed Ms. Velasquez that he would also tell his wife to inform him if the check arrived in

the mail. Approximately two weeks later, Ms. Velasquez again contacted Acosta who stated that

he had not received the check and promised to either bring the check to Tri State or contact Ms.

Velasquez so that she could pick it up from him. In early December 2007, Ms. Velasquez called

Acosta at work and on his cell phones, left her phone number and detailed messages about the check,

and requested that he call her. Ms. Velasquez did not receive any calls from Acosta. After

discovering on January 4, 2008, that Acosta had previously cashed the check on November 2, 2007,

Ms. Velasquez again attempted to call Acosta regarding the check and left messages for him, but

Acosta never returned her calls.

       The affidavit of Ms. Susan Nowak, a Tri State “loan closer,” was also submitted in support

of Tri State’s response to the motion for new trial. Ms. Nowak was in charge of processing Acosta’s

loan application and explained to Acosta at the time of his application that Tri State would sell the

loan. Acosta’s loan was approved and Ms. Nowak shipped the appropriate documents to Chase

Bank, which had purchased the loan on August 22, 2007. Tri State discovered the Acosta escrow

error and Ms. Nowak learned during the first week of October 2007, that a check had been issued
erroneously to Acosta rather than Tri State. Ms. Nowak informed Ms. Velasquez of the error, was

present when Ms. Velasquez called Acosta, and heard Ms. Velasquez tell Acosta about the escrow

mistake and the importance of returning the check as it did not belong to him and was sent in error.

She also heard Ms. Velasquez both inform Acosta that he needed to contact Tri State as soon as he

received the check and offer to pick up the check from Acosta. Ms. Nowak continued to consult

with Ms. Velasquez thereafter but learned that, although messages were left for Acosta, he was no

longer returning her calls.

                                                New Trial Hearing

       A hearing on Acosta’s new trial motion was held on September 22, 2008. The trial court

struck as untimely the amended motion for new trial but, overruling Tri State’s objections,

considered Acosta’s affidavit, which was tendered to the court by Acosta’s attorney.1 Acosta and

Tri State each presented legal arguments to the court. Acosta did not call any witnesses, did not offer

any other affidavits or other evidence in support of his motion, and failed to identify any witnesses,

testimony, or evidence that he would present if a new trial was granted. After considering Acosta’s

motion and affidavit, Tri State’s responses, arguments, and affidavits, and the applicable law, the

trial court denied the motion for new trial. The trial court also entered detailed findings of fact and

conclusions of law.

                                             Plea to the Jurisdiction

       Acosta thereafter filed a plea to the jurisdiction on September 30, 2008, to which Tri State

responded. In his plea, Acosta contended that Chase Bank, not Tri State, owned and held the “note”

and that Tri State could not sue in the name of Chase Bank, especially after Acosta’s loan was sold

to Chase Bank, which issued the check. Acosta also noted that Tri State had admitted that Chase

       1
           Acosta did not appear or testify at his new-trial hearing.
Bank refused to seek recovery of the check from him and transfer the funds to Tri State. Acosta

claimed that the trial court lacked subject-matter jurisdiction over the dispute. The trial court denied

Acosta’s plea to the jurisdiction and Acosta filed this appeal.

                                           DISCUSSION

        In his first issue, Acosta complains that the trial court erred in denying his plea to the

jurisdiction because Tri State allegedly did not have standing to file suit in this matter.

        As a component of subject-matter jurisdiction, which is never presumed, cannot be waived,

and can be raised for the first time on appeal, we review a claimant’s standing de novo. Texas Dept.

of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004); Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 293

(Tex. App. – Dallas 2009, no pet. h). Standing is a constitutional prerequisite to maintaining suit.

Texas Dept. of Transp., 146 S.W.3d at 646; see Tex. Ass’n of Bus., 852 S.W.2d at 444; Hunt v. Bass,

664 S.W.2d 323, 324 (Tex. 1984); Girsh v. St. John, 218 S.W.3d 921, 923 (Tex. App. – Beaumont

2007, no pet). To have standing, a plaintiff must be personally aggrieved; his alleged injury must

be concrete and particularized, actual or imminent, not hypothetical. DaimlerChrysler Corp. v.

Inman, 252 S.W.3d 299, 304 (Tex. 2008). If a party lacks standing to bring an action, the trial court

lacks subject-matter jurisdiction to hear the case. Town of Fairview v. Lawler, 252 S.W.3d 853, 855

(Tex. App. – Dallas 2008, no pet.).

        The alleged absence of subject-matter jurisdiction may be raised in a plea to the jurisdiction.

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A plea to the jurisdiction is a

mechanism by which a party contests the trial court’s authority to decide a case. Id.; El Paso County

v. Navarrete, 194 S.W.3d 677, 682-83 (Tex. App. – El Paso 2006, pet. denied). The plea is dilatory

and its purpose is to defeat a cause of action without addressing the merits of the case. Bland Indep.
Sch. Dist., 34 S.W.3d at 554; Navarrete, 194 S.W.3d at 683. We review de novo a trial court’s

ruling on a plea to the jurisdiction. Navarrete, 194 S.W.3d at 683.

       Among its findings of fact and conclusions of law, the trial court made the following

determinations. Tri State loaned funds to Acosta to purchase a home and Chase Bank purchased the

loan from Tri State. Tri State accidentally overpaid funds into Acosta’s escrow account and Chase

Bank acknowledged the error. Because Chase Bank’s check for $8,243.28 had issued on October

4, 2007, and had been mailed to Acosta, Chase Bank informed Tri State that Tri State was

responsible for recovering the check from Acosta. Tri State had the right to immediate possession

of the check issued by Chase Bank, which was personal property. During the week of October 8,

2007, and on November 2, 2007, and on November 15, 2007, Tri State notified Acosta that the check

was issued by mistake due to an overpayment made by Tri State to the escrow account, that the funds

did not belong to Acosta but, rather, to Tri State, and advised him to deliver the check to Tri State

as soon as he received it. Acosta informed Tri State that he had not received the check but would

return it upon receipt. Acosta then received the check, and knowing that it had been issued in error

and that the check did not belong to him, Acosta endorsed and negotiated the check on November

2, 2007. The trial court found that Tri State was injured by Acosta’s actions and never received the

$8,243.28 to which it was entitled.

       The facts established in the record, along with the trial court’s findings and conclusions,

demonstrate that Tri State had standing as it was personally aggrieved, and its injury was actual,

concrete, and particularized. DaimlerChrysler Corp., 252 S.W.3d at 304. Consequently, because

Tri State had standing to pursue its claim, we find that the trial court did not err when it denied

Acosta’s plea to the jurisdiction. We overrule Acosta’s first issue on appeal.

       As Acosta’s remaining three issues complain of trial court error alleged to have occurred
during the new trial proceedings, we consider those issues together. A trial court possesses broad

discretion in ruling on a motion for new trial, and an appellate court reviews the denial of a motion

for new trial for an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987). A

trial court abuses its discretion when it acts without reference to any guiding rules or principles, not

when it exercises that discretion in a manner different than a reviewing appellate court might.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

        In his second issue, Acosta relies upon the Texas Supreme Court’s opinion in Craddock to

support his position that the trial court should have set aside the default judgment and granted him

a new trial. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). In Craddock,

the Supreme Court of Texas held a default judgment should be set aside if the defendant establishes

by its motion for new trial that: (1) the failure to answer before judgment was not intentional or the

result of conscious indifference, but the result of an accident or mistake; (2) the motion for new trial

sets up a meritorious defense; and (3) granting the motion will occasion no undue delay or otherwise

injure the plaintiff. Craddock, 133 S.W.2d at 126. A defaulting defendant bears the burden of

proving each of the three Craddock elements before a trial court is required to grant a motion for new

trial. Scenic Mountain Medical Center v. Castillo, 162 S.W.3d 587, 590 (Tex. App. – El Paso 2005,

no pet.). Acosta alleges that he has met each element of the Craddock test. We disagree.

        We determine whether a party acted with conscious indifference in failing to answer the suit

by examining the knowledge and acts of the party who failed to appear. 21st Century Home Mortg.

v. City of El Paso, 281 S.W.3d 83, 86 (Tex. App. – El Paso 2008, no pet.). A party acts with

conscious indifference by failing to take some action which would seem indicated to a person of

reasonable sensibilities under the same circumstances. Liberty Mut. Fire Ins. Co. v. Ybarra, 751

S.W.2d 615, 618 (Tex. App. – El Paso 1988, no writ). Where the factual allegations in a movant’s
affidavits are uncontroverted, and where the affidavits set forth facts that, if true, would negate the

presence of intentional or consciously indifferent conduct, a motion for new trial should be granted.

Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984). If the non-movant presents controverting

evidence, the issue then becomes a fact question for the trial court. 21st Century Home Mortg., 281

S.W.3d at 86; see Ybarra, 751 S.W.2d at 618. When determining whether the movant’s factual

allegations are controverted, we consider the entire record. 21st Century Home Mortg., 281 S.W.3d

at 86; Scenic Mountain Medical Center, 162 S.W.3d at 590.

       In our review of the entire record, we note a significant deficiency therein. After overruling

Tri State’s objections to the offer of Acosta’s affidavit during the new trial hearing, the trial court

stated that Acosta’s affidavit would be allowed, would be filed with the record, and would be

considered by the court. However, we find that the affidavit considered by the trial court has not

been made a part of the record and is not identified as a part of the record on appeal. This Court sua

sponte requested that the District Clerk supplement the appellate record with Acosta’s affidavit and

has been informed that the affidavit is not contained within the Clerk’s file. We also note that the

District Clerk’s docket sheet does not contain an entry showing that the affidavit was filed with the

Clerk. However, affixed to his untimely-filed amended motion for new trial, which the trial court

struck, are Acosta’s two affidavits that the trial court was not able to consider. Nonetheless,

assuming that Acosta’s missing affidavit was a duplicate of one or both of the untimely-filed

affidavits, which in turn advance the same assertions set forth in Acosta’s motion for new trial, we

find that the facts asserted therein are insufficient to meet the first Craddock element.

       Acosta does not assert nor does he show that he did not have knowledge of the suit. Indeed,

the citation served upon him on July 16, 2008, clearly informed Acosta that he had been sued, that

he may employ an attorney, and that if no answer was filed with the clerk by 10 a.m. on the Monday
next following the expiration of twenty days after he was served with citation and petition, a default

judgment could be taken against him. There is no doubt that Acosta had knowledge of the suit. 21st

Century Home Mortg., 281 S.W.3d at 86.

       We next look at Acosta’s actions. In his new trial motion and his untimely-filed affidavits,

Acosta alleges that on the day following service of citation, he left town to travel to San Diego on

a family vacation for one and one-half weeks, and he asserts that upon his return, he was

immediately dispatched by his employer to Florida for two-weeks on work-related business. Acosta

contends that he “addressed the issue of answering the suit in the morning of his first business day

back in town” and “expeditiously contacted his attorney,” believing “that he had sufficient time

within which to file his answer since he acted promptly as soon as he returned home.” These

assertions fail to support Acosta’s contention that his failure to file an answer was the result of

mistake or accident and, instead, support a finding that Acosta acted with conscious indifference.

Ybarra, 751 S.W.2d at 618. Making a telephone call to an attorney prior to the date an answer is due

would seem to be the action indicated to a person of reasonable sensibilities under the same

circumstances and, had Acosta done so, it is possible that an attorney could have timely prepared and

filed the documents necessary to preserve Acosta’s legal rights and defenses. 21st Century Home

Mortg., 281 S.W.3d at 86; Ybarra, 751 S.W.2d at 618. Acosta did not contact his attorney until

August 11, 2008, the date on which his answer was due to be filed in court and does not demonstrate

any reason why he could not have done so. Consequently, we find that the trial court did not abuse

its discretion when it denied Acosta’s motion for new trial. Strackbein, 671 S.W.2d at 38-39;

Downer, 701 S.W.2d at 241-42; Cliff, 724 S.W.2d at 778-79.

       Where a party fails to establish one of the three elements of the Craddock test, there is no

reason to address the remaining elements. Scenic Mountain Medical Center, 162 S.W.3d at 590.
We overrule Acosta’s second issue on appeal.

       In his third issue on appeal, Acosta complains that the trial court erred in denying his motion

for new trial without setting aside an award of attorney’s fees to Tri State for which he did not

receive notice. During the default judgment hearing, at which Acosta and his attorney did not

appear, Ms. Forbes asked to make a record regarding her attorney’s fees, and the trial court noted,

“I don’t see that in here.” Ms. Forbes stated, “Hopefully, it’s there. It certainly was meant to be.”

Ms. Forbes requested $1,500 in attorney’s fees, which the trial court awarded.

       Generally, each litigant must pay its own attorney’s fees. MBM Fin. Corp. v. Woodlands

Oper. Co. , 292 S.W.3d 660, 663 (Tex. 2009). Otherwise, the recovery of attorney fees from an

adverse party is only permitted upon proving that such recovery is authorized by statute, by a

contract between the litigants, or under equity. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v.

National Dev. & Research Corp, 299 S.W.3d 106, 120 (Tex. 2009); Knebel v. Capital Nat’l Bank,

518 S.W.2d 795, 799 (Tex. 1975). A plaintiff must plead and prove attorney’s fees or waive them.

State Farm Fire & Cas. Co. v. Leasing Enters., 716 S.W.2d 553, 555 (Tex. App. – Houston [14th

Dist.] 1986, writ ref’d n.r.e.). While it is possible to provide an extensive analysis regarding the

many intricacies and nuances which govern the recovery of attorney’s fees, we need not do so here.

       The record fails to demonstrate that Ms. Forbes pled and proved that her recovery for

attorney’s fees were authorized by statute, contract or equity. Consequently, she has waived any

recovery of attorney’s fees and the trial court erred in awarding them. Akin, Gump, Strauss, Hauer

& Feld, L.L.P., 299 S.W.3d at 120; State Farm Fire & Cas. Co., 716 S.W.2d at 555. We sustain

Acosta’s third issue on appeal.

       In his fourth issue on appeal, Acosta complains that Chase Bank was an indispensable party

that was not properly joined or made subject to the default judgment.
       All feasible parties should be joined in a lawsuit. TEX . R. CIV . P. 39(a). A party is feasible

if, without the absent party, complete relief cannot be given to those who are already parties, and the

absent party claims an interest in the subject matter of the action. Wilchester W. Concerned

Homeowners LDEF, Inc. v. Wilchester W. Fund, Inc., 177 S.W.3d 552, 559 (Tex. App. – Houston

[1st Dist.] 2005, pet. denied). Where a feasible party cannot be joined, the trial court must decide

whether the absent person is indispensable. TEX . R. CIV . P. 39(b). The factors a trial court must

consider when making this determination are: (1) the extent to which a judgment rendered in the

person’s absence might be prejudicial to it or to those already parties; (2) the extent to which the

prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of

relief, or by other measures; (3) whether a judgment rendered in the person’s absence will be

adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for

non-joinder. TEX . R. CIV . P. 39(b).

       The facts in this case do not bear out Acosta’s complaint. While Chase Bank may have

proven to be a beneficial witness to one or both of the parties had it been called for evidentiary

purposes, it cannot be said under these facts and this record that complete relief could not be given

to Tri State and Acosta without Chase Bank being named as a party. Nor is there any evidence in

the record which supports a determination that Chase Bank claimed an interest in the subject matter

of the action, that is, the check. Rather, the record demonstrates that Chase Bank recognized that

Tri State was the appropriate party to pursue recovery of the errant check. Acosta has not

demonstrated, and the record does not show, that the judgment rendered in Chase Bank’s absence

would possibly be prejudicial to Chase Bank, to Tri State, nor to himself. Because the record

supports the trial court’s determination that Chase Bank was not an indispensable party to this

lawsuit, we find the trial court did not commit error. We overrule Acosta’s fourth issue.
                                        CONCLUSION

       Having sustained Issue Three, we reverse that part of the trial court’s judgment. Having

overruled Issues One, Two, and Four, the remainder of the trial court’s judgment is affirmed.




                                              GUADALUPE RIVERA, Justice
August 25, 2010

Before Chew, C.J., McClure, and Rivera, JJ.
