Preview
FILED
10/1/2020 1:36 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker—Ayodele DEPUTY
N0. DC-19-06955
INVESTMENT RETRIEVERS *
INC. In the District Court
V.
298th Judicial District
GABRIELA ESPINOZA a/k/a
GABRIELA MARTINEZ and JORGE *********
L. ESPINOZA TORRES a/k/a JORGE
ESPINOZA TORRES a/k/a JORGE E.
TORRES a/k/a JORGE ESPINOZA
a/k/a JORGE TORRES Dallas County, Texas
MODIFICATION HEARING BRIEF
T0 THE HONORABLE JUDGE 0F SAID COURT:
COMES NOW, Defendants Gabriela Espinoza and Jorge Espinoza, and file this
Modification Hearing Brief in support 0f the Motion to Modify Judgment t0 a Take Nothing
Judgment.
I.
As stated in the Defendants’ Motion t0 Modify Judgment to a Take Nothing
Judgment for lack of standing, Plaintiff Investment Retrievers Inc. never owned the claim, and,
therefore, lacked standing. Standing requires a party t0 own a claim at every stage 0f the legal
proceedings in order t0 obtain a judgment. It is not waivable. While Plaintiff Investment
Retrievers Inc. received an assignment from Nissan Motor Acceptance Corporation, the original
seller/creditor Trophy Nissan never assigned the claim 0r debt t0 Nissan Motor Acceptance
Corporation. Therefore, Nissan Motor Acceptance Corporation assigned nothing.
Two documents introduced by Plaintiff at trial were determinative of the standing
issue. Furthermore, Investment Retrievers Inc.’s corporate representative and sole Witness, Paul
Petrumin’s testimony narrowed the standing issue t0 only these two relevant documents, namely
the original sales contract (Exhibit B) and an undated credit application (Exhibit C).
Modification Hearing Brief - Page 1 of 6
The first document, the installment sales contract, was referred t0 as “Law” in Mr.
Petrunin’s testimony. See the partial trial transcript marked as Exhibit D t0 this Brief (Page 8,
Lines 13-14), attached hereto and incorporated herein. That February 7, 2015 Installment Sales
Contract attached is Exhibit B and incorporated herein. That contract lists the seller/creditor 0f
the vehicle as Trophy Nissan. Mr. Petrunin implausibly claimed that the sales contract contained
an assignment to Nissan Motor Acceptance Corporation. He stated that it was located on Page 5
of the installment sales contract (highlighted 0n Page 5 0f the contracted attached as Exhibit B).
Mr. Petrunin stated that there was no other language in this agreement assigning the claim to a
nMac 0r Nissan (Page 9, lines 8-10, Exhibit D trial transcript). Mr. Petrunin claimed that the
following language contained an assignment t0 Nissan:
A. “T0 contact nMac/IFS about this account call 800-274-6688. This
contract is subj ect, in Whole 0r in part, t0 Texas State Law, which is enforced by
Consumer Credit Commission, 2601 North Lamar Boulevard, Austin, Texas 78705-
4207, 800-538-1579 or at www.occc.state.tx.us and can be contacted related to any
inquiries 0r complaints.”
That paragraph is titled Consumer Credit Commissioner Notice. Nowhere is the
word “assignment” 0r a description of an assignment located in that statement or anywhere else
in the trial record. Mr. Petrunin testified that he knew what the word “assignment” meant and
that word was not in that location (Page 13, lines 20-24, Exhibit D). No interpretation 0f the
English language could show that Trophy Nissan’s claim was transferred or assigned to Nissan
Motor Acceptance Corporation.
The top right hand corner of Page 5 of the Sales Contract states that “[t]his
contract contains the entire agreement between Nissan Trophy and the purchaser relating to the
sale and financing 0f the vehicle.” Therefore, any verbal statements are not part of this
Modification Hearing Brief - Page 2 of 6
agreement and none have been alleged. Furthermore, since Trophy Nissan prepared the
agreement, any ambiguity must be interpreted against it.
The second document was an undated credit application for Nissan Motor
Acceptance Corporation, also in Trial Exhibit C. It fails t0 connect the application to the sales
contract 0r the vehicle in question. It could have been filled out regarding another vehicle since
we d0 not have any indication 0f when it was filled out 0r a description of the vehicle. The credit
application does not indicate that it was accepted as it fails t0 give any financing terms or vehicle
description. The credit application apparently originated With Nissan Motor Acceptance
Corporation but contains n0 wording 0f assignment of any claim originating from any Trophy
Nissan sales contract.
Mr. Petrunin has no personal knowledge 0f the sale other than What was in the
record.
II. STANDING
Standing to pursue a claim is not waivable and can be raised at any time, even as
late as in an appellate court proceeding. See, e.g. City ofDallas v. Woodfield, 305 SW3d 412,
416 (Tex. App. — Dallas 2010, rehr’g overruled) (“For a plaintiff t0 have standing, a controversy
must exist between the parties at every stage of the legal proceedings”)
To bring an action in Texas, a party must have standing. e.g., Daimler Chrysler
Corp. v. Inman, 252 SW3d 299, 304 (Tex. 2008). Standing is a component 0f subject-matter
jurisdiction. Douglas v. Delp, 987 SW2d 879, 882 (TeX. 1999); OAIC Commercial Assets, L.L.C.
v. Stonegate Vill., L.P., 234 SW3d 726, 735 (Tex. App.-Dallas 2007, pet. denied); see also
Daimler Chrysler Corp. v. Inman, 252 SW3d 299, 304 (TeX. 2008) (“A court has n0 jurisdiction
over a claim made by a plaintiff Without standing t0 assert it”) (footnote omitted). Thus,
Modification Hearing Brief - Page 3 0f 6
standing cannot be waived, and we may examine standing sua sponte if necessary. See OAIC,
234 SW3d at 735; see also Tex. Ass'n ofBus. v. Tex. Air Control Bd., 852 SW2d 440, 445-46
(Tex. 1993) (noting that standing “may be raised for the first time 0n appeal by the parties 0r by
the court”). The general test for standing is Whether there is a real controversy between the
parties that will actually be determined by the judgment sought. Tex. Ass'n 0fBus., 852 SW2d at
446. “T0 establish standing, a person must show a personal stake in the controversy.” In re
B.I. V., 923 SW2d 573, 574 (Tex. 1996) (per curiam). Standing must exist at the time a plaintiff
files suit; if the plaintiff lacks standing at the time 0f filing, the case must be dismissed, even if
the plaintiff later acquires an interest sufficient t0 support standing. Doran v. ClubCorp USA,
Ina, N0. 05-06-01511-CV, 2008 WL 451879, at *2 (TeX. App.-Da11as Feb. 21, 2008, n0 pet.)
(mem. 0p.); Kilpatrick v. Kilpatrick, 205 SW3d 690, 703 (Tex. App.-Fort Worth 2006, pet.
denied). And the standing doctrine requires a controversy t0 continue t0 exist between the parties
at every stage 0f the legal proceedings, including the appeal. City ofDallas v. Woodfield, 305
SW3d 412, 416 (TeX. App.-Dallas 2010, n0 pet).
Standing a component 0f subject—matter jurisdiction. Tex. Ass ’n
is ofBus. v. Tex.
Air Control Bd., 852 S. W.2d 440, 445—46 (TeX. 1993); see also Daimler Chrysler Corp. v.
Inman, 252 SW3d 299, 304 (Tex. 2008) (“A court has no jurisdiction over a Claim made by a
plaintiff Without standing t0 assert it”). If a party lacks standing t0 bring an action, the trial
court lacks subject-matter jurisdiction t0 hear the case. Tex. Ass ’n
0fBus., 852 SW2d at 444—45.
“[S]tanding focuses on the question 0f who may bring an action.” Patterson v.
Planned Parenthood, 971 SW2d 439, 442 (Tex. 1998). The general test for standing is Whether
there is a real controversy between the parties that will actually be determined by the judgment
Modification Hearing Brief - Page 4 0f 6
sought. Tex. Ass’n ofBus., 852 SW2d at 446. “T0 establish standing, a person must show a
personal stake in the controversy.” In re B.I. V., 923 SW2d 573, 574 (Tex. 1996).
Standing to sue may be predicated upon either statutory or common law
authority. Nauslar v. Coors Brewing Ca, 170 SW3d 242, 252 (Tex. App.—Dallas 2005, no
pet); see Williams v. Lara, 52 SW3d 171, 178—79 (Tex. 2001). The common law standing rules
apply except when standing is statutorily conferred. SCI Tex. Funeral Servs., Inc. v. Hijar, 214
SW3d 148, 153 (Tex. App.—El Paso 2007, pet. denied).
Neeley v. West Orange-Cove Consol. Indep. Sch. Dist, 176 SW3d 46, 774
(Tex.2005) ("Standing to assert a constitutional Violation depends on whether the claimant
asserts a pafiicularized, concrete injury.")
PRAYER
For these reasons, and in the interest of justice and fairness, Defendants ask the
court to set modify the judgment signed on August 14, 2020 to a take nothing judgment. A
proposed judgment is attached hereto as Exhibit A.
Respectfully submitted,
EDDLEMAN & CLARK
4627 North Central Expressway
Knox Central Place, Suite 2000
Dallas, Texas 75205-4022
Phone 214.528.2400
Fax 214.528.2434
RMC@RobertMC1ark.net
WM. w
ROBERT M. CLARK
State Bar No. 04298200
Attorney for Defendants
Modification Hearing Brief - Page 5 of 6
Certificate 0f Service
I copy 0f the above was served on counsel for Plaintiff, Carl Tucker, 2028 E.
certify that a true
Ben White TX 78741, Fax 214.594.7862, ctuckerlaw
Blvd., #240-1650, Austin, ai1.com in
accordance With Rule 21a 0f the Texas Rules osz'vz'l Procedure on the lst day 0f October, 2020.
WM. 4M
Robert M. Clark
Modification Hearing Brief - Page 6 of 6
N0. DC-19-06955
INVESTMENT RETRIEVERS *
INC. In the District Court
V.
298th Judicial District
GABRIELA ESPINOZA a/k/a
GABRIELA MARTINEZ and JORGE *********
L. ESPINOZA TORRES a/k/a JORGE
ESPINOZA TORRES a/k/a JORGE E.
TORRES a/k/a JORGE ESPINOZA
a/k/a JORGE TORRES Dallas County, Texas
AMENDED FINAL JUDGMENT
The above-entitled cause came on for hearing before this Court 0n August 13,
2020 and a Final Judgment was signed on August 14, 2020. The Defendants flied a Motion to
Modify Judgment to a Take Nothing Judgment for Lack of Standing 0n September 9, 2020. The
Court, after hearing the evidence and arguments 0f counsel, is 0f the opinion that the
Defendant’s Motion to Modify should be granted and Plaintiff should have a take nothing
judgment by this suit due t0 Plaintiff s lack of standing.
IT IS, THEREFORE, ORDERED and ADJUDGED by the Court that the Final
Judgment 0f August 14, 2020 is rescinded; that Plaintiff take nothing by this suit, and that
Defendant be in all things discharged. A11 costs 0f Court are taxed against the Plaintiff, for
which let execution issue.
A11 other relief not expressly granted in this judgment is denied.
Signed on the day 0f ,
2020.
JUDGE PRESIDING
Amended Final Judgment — Page 1 of 1 Exhibit A
lM°553-TX-AR B-e 2/1 2
MOTOR VEHICLE RETAIL INSTALLMENT SALES CONTRACT
W
SIMPLE FINANCE CHARGE
Dealer Number m_— Contract Number 1723779304
BUYER JABRIELA ESPNOZA SELLERICREDITOR
ADDREss-VIADEL REY ADDRESSW
cn'v JESQUITE STATE TX ZIP .15an CITY _£_rMes nits STATE TX ZIPJflm
PHoNIEW
CGBUYER
ADDRESS- VIA DEL REY
crrvmuna STATE TX ZIP 25159
PHONE
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The Buyerls referradto as"y- a
PROMISE TO PAY: The r. - A t pflce‘shown below as the "T I Sales Price." The 'Cash Price" is also shown in the Itemization of Amount
. You agree us the
to pay
Amount Financed, Financ 9 arga. andan 1h: =
. u saocording to the Payment
-: ent even ifthe others do not.
Schedule in this contract. = . c
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YEAH MAKE MODEL VEHICLE IDENTIFICATION NUMBER m NEW memo uuLess OTHERWISE IN BELow
D DEMONSTRATOH mmsrgmnnmmmmmscmm.
boxasbsbwlscnecm.0hapta353
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2015 NISSAN TITAN 2WD maBADEDSFNsoow
D FACTORY
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OFFICIAL/EXECUTIVE U BUSINESS 0H COMMERCIAL
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U USED D AGRICULTURAL
Trade-in: Make NISSAN Mode, serum
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3N1AB7AP60L560633 2013.11.07
Year 201a VIN License No.
FEDERAL TRerH-IN-Lfiumfimgunas SELLEn-s mscumsn or wmnmnas
ANNUAL FINANCE z
_ Unless the seller makes a written warrantxmr
PERCENTAGE CHARGE ?%nters Into a service comraci withln 90
RATE
Th9 “530'
Tnadonar
“mm“!w
fiom the date ol this contract, the ”m
makes no warrantlu, express or Implied, on
vawggdreydgg mfiwg' the vehicle, and there wIII be no imp'ued
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warrfinflel: of merchantablllty or oi fitness for
lGu l'
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4.34 e/o s 7,703.47 $ 52,929.53 s 60,633.00 s 60,633.00 g’avlf'j'fggmrwmfihgjfae‘h“
9 "W”
Your Payment Schedule Will Bo:
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75 $ 303- 44 M°" mlV b99 "“‘"9 394/2015
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form overrldes any comrary provisions In lha
0r as follows contract of sale.
Spanish Translation. Gula are compradors
One finaipaymemof NM MA de vahlculos usados. La ln ormacibn qua ve
Lat. Charge: If we do
_
not receive your entire payment within E days after it is due (10 days if you are en 5| formuhrjo d3 h ventanifla para gate
buying a heavy commercial vehicle), you win pay a
Prepayment. If you pay an
late
mm you owe eariy, you win not have to pay a penalty.
charge at fl 01 the scheduled payment. vehlculo forms rte del presente comma. La
lnlormacién de formularlo do Ia vantanflh
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IMerest. security interest in
Additional Information: See this document for more information about nonpayment, default security
”mam“ a" “I 6° ”mm “mm
interests. and any required repayment in full before the scheduled date.
APPLICABLE LAW Federal and Texas law apply to this contract.
NOTICE:ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHCH THE DEBTOR COULD
ASSERT AGAINST THE SELLER OF GOODS OH SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY
HEHEUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
This PROVIS|ON applies to this contract only if the vehicle financed in me coraract was purchased for personal, family, or household use.
_
LAWSES-TX-ARB-e 2/12 v1 Pegs 1 616
Exhiblt B 8
ITEMIZA'HON OF AMOUNT FINANCED INSURANCE: THIS CONTRACT
LIABILITY
1 Cash
_SA+LE_STAX
Price (mung any accessories. services. axes.
s 1.47331. AmmsL. DOES NOT "CLUDE INSURANCE COVER-
AGE Fon PERSONAL LIABILnY AND
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NIA sflA .and NIA s NIA )s 38,404.81 (1) PROPERTY DAMAGE CAUSED TO OTHERS.
2 m l em- Hn ”avas.enter"arfimUno4Abem
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we don't enforce our n hts eyery trmg, we can
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y y sfin enforce them later. e wIII exemse all of
' N“ 7"“ '" $'—'—'—— our rights in a hwful way. You don’t have lo pay
+Gash finance charge or other amounts that are more
+M1rs. Habata s 1,350.00 than the law allows._This provision prevails over
other parts of this contract and over ow
mmsfim) NM s N/A all
chef aas‘
all
Total Dmpayment S 0.00 (2)
a Unpaid Balance oi cm Price (1 minus 2) s 38504.81 (a)
4 Other Charges includng Amounts Paid to Others an You Behall
(Salter may keep par! o! these amounts):
m
fl
A Not tada-ln payoff NMAC 3 8,510.00
B Casio? Oplonal Credit Insurance Paid to Insurance
Company or Companies.
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Disability // \l
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Debt Cancellalon Agreement Fee Paid Io tho Sella $ N/A
91am Invemog Tax (n Not included In sash Price) 3 80.48
_=D"||"|
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ct Indu 1n P $ NIA
amarTaxea .1 Not Included In Cash Pdea s 12.00
Gownmem License andlor Heg'slralion Fees
awe om $ 50.75
'lhililnthOapy.
s 33.00
grflh Gmmmem Vehicle Inspeclion Fm n $ 23.75
//'\1
Deputy Same Fae Paid to Dealer
Documentary Fol (cirgn
A DOCUMENTARY FEE
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NOT AN OF IAL FEE. A IS
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RELATING TO THE SALE. A DOCUMENTA EE M EX D RE ABL
BY A
AMOUNT AGREED T0 BY THE PARTIES. THI S RE
UN CARGO DOCUMENTAL NO ES UN CARGO QFICIAL. LA LEY N XIGE 0
IMPONGA UN CARGO DOCUMENTAL. PERO ESTE PODR‘A C SE A S
COMPRADOHESPOH EL MANEJO DE LA DOCUMENTACION EL RELACION GON LA
VENTA. UN CARGO DOCUMENTAL N0 PUEDE EXCEDER UNA GANTIDAD RAZONABLE
ACOHDADA POH LAS PAHTES. ESTA NOTIFICACION 5E EXIGE POH LEY.
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to State tor Plate Transfer Fee s 5.00
b MP? for CLUB 5 699.00
to MP? fat mmmmmmmvma s 2,990.00
to cAREMMNTENANcE for MAIMENANCE $ 769.00
to MIA for NM $ NIA
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Tohlomar Charges and Amounis Paid m Others on Your adult s 14,524.72 (4)
5 Amuntnmneedgau) $ 52.92953 (s)
LAW553-TX‘AHB-e 2/12 v1 P8092d6
Exhibit B 9
PROPERTY INSURANCE You mm! kn; Ihc collateral Insured ulna «mug: or bu In Ihe amount owl. You must Imp ml: Insurance unlll you luv: paid III um you
nun under lhls contract. You mly om mlnmam fridgm anyone you or promo p mm
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Preview
FILED 10/1/2020 1:36 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker—Ayodele DEPUTY N0. DC-19-06955 INVESTMENT RETRIEVERS * INC. In the District Court V. 298th Judicial District GABRIELA ESPINOZA a/k/a GABRIELA MARTINEZ and JORGE ********* L. ESPINOZA TORRES a/k/a JORGE ESPINOZA TORRES a/k/a JORGE E. TORRES a/k/a JORGE ESPINOZA a/k/a JORGE TORRES Dallas County, Texas MODIFICATION HEARING BRIEF T0 THE HONORABLE JUDGE 0F SAID COURT: COMES NOW, Defendants Gabriela Espinoza and Jorge Espinoza, and file this Modification Hearing Brief in support 0f the Motion to Modify Judgment t0 a Take Nothing Judgment. I. As stated in the Defendants’ Motion t0 Modify Judgment to a Take Nothing Judgment for lack of standing, Plaintiff Investment Retrievers Inc. never owned the claim, and, therefore, lacked standing. Standing requires a party t0 own a claim at every stage 0f the legal proceedings in order t0 obtain a judgment. It is not waivable. While Plaintiff Investment Retrievers Inc. received an assignment from Nissan Motor Acceptance Corporation, the original seller/creditor Trophy Nissan never assigned the claim 0r debt t0 Nissan Motor Acceptance Corporation. Therefore, Nissan Motor Acceptance Corporation assigned nothing. Two documents introduced by Plaintiff at trial were determinative of the standing issue. Furthermore, Investment Retrievers Inc.’s corporate representative and sole Witness, Paul Petrumin’s testimony narrowed the standing issue t0 only these two relevant documents, namely the original sales contract (Exhibit B) and an undated credit application (Exhibit C). Modification Hearing Brief - Page 1 of 6 The first document, the installment sales contract, was referred t0 as “Law” in Mr. Petrunin’s testimony. See the partial trial transcript marked as Exhibit D t0 this Brief (Page 8, Lines 13-14), attached hereto and incorporated herein. That February 7, 2015 Installment Sales Contract attached is Exhibit B and incorporated herein. That contract lists the seller/creditor 0f the vehicle as Trophy Nissan. Mr. Petrunin implausibly claimed that the sales contract contained an assignment to Nissan Motor Acceptance Corporation. He stated that it was located on Page 5 of the installment sales contract (highlighted 0n Page 5 0f the contracted attached as Exhibit B). Mr. Petrunin stated that there was no other language in this agreement assigning the claim to a nMac 0r Nissan (Page 9, lines 8-10, Exhibit D trial transcript). Mr. Petrunin claimed that the following language contained an assignment t0 Nissan: A. “T0 contact nMac/IFS about this account call 800-274-6688. This contract is subj ect, in Whole 0r in part, t0 Texas State Law, which is enforced by Consumer Credit Commission, 2601 North Lamar Boulevard, Austin, Texas 78705- 4207, 800-538-1579 or at www.occc.state.tx.us and can be contacted related to any inquiries 0r complaints.” That paragraph is titled Consumer Credit Commissioner Notice. Nowhere is the word “assignment” 0r a description of an assignment located in that statement or anywhere else in the trial record. Mr. Petrunin testified that he knew what the word “assignment” meant and that word was not in that location (Page 13, lines 20-24, Exhibit D). No interpretation 0f the English language could show that Trophy Nissan’s claim was transferred or assigned to Nissan Motor Acceptance Corporation. The top right hand corner of Page 5 of the Sales Contract states that “[t]his contract contains the entire agreement between Nissan Trophy and the purchaser relating to the sale and financing 0f the vehicle.” Therefore, any verbal statements are not part of this Modification Hearing Brief - Page 2 of 6 agreement and none have been alleged. Furthermore, since Trophy Nissan prepared the agreement, any ambiguity must be interpreted against it. The second document was an undated credit application for Nissan Motor Acceptance Corporation, also in Trial Exhibit C. It fails t0 connect the application to the sales contract 0r the vehicle in question. It could have been filled out regarding another vehicle since we d0 not have any indication 0f when it was filled out 0r a description of the vehicle. The credit application does not indicate that it was accepted as it fails t0 give any financing terms or vehicle description. The credit application apparently originated With Nissan Motor Acceptance Corporation but contains n0 wording 0f assignment of any claim originating from any Trophy Nissan sales contract. Mr. Petrunin has no personal knowledge 0f the sale other than What was in the record. II. STANDING Standing to pursue a claim is not waivable and can be raised at any time, even as late as in an appellate court proceeding. See, e.g. City ofDallas v. Woodfield, 305 SW3d 412, 416 (Tex. App. — Dallas 2010, rehr’g overruled) (“For a plaintiff t0 have standing, a controversy must exist between the parties at every stage of the legal proceedings”) To bring an action in Texas, a party must have standing. e.g., Daimler Chrysler Corp. v. Inman, 252 SW3d 299, 304 (Tex. 2008). Standing is a component 0f subject-matter jurisdiction. Douglas v. Delp, 987 SW2d 879, 882 (TeX. 1999); OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 SW3d 726, 735 (Tex. App.-Dallas 2007, pet. denied); see also Daimler Chrysler Corp. v. Inman, 252 SW3d 299, 304 (TeX. 2008) (“A court has n0 jurisdiction over a claim made by a plaintiff Without standing t0 assert it”) (footnote omitted). Thus, Modification Hearing Brief - Page 3 0f 6 standing cannot be waived, and we may examine standing sua sponte if necessary. See OAIC, 234 SW3d at 735; see also Tex. Ass'n ofBus. v. Tex. Air Control Bd., 852 SW2d 440, 445-46 (Tex. 1993) (noting that standing “may be raised for the first time 0n appeal by the parties 0r by the court”). The general test for standing is Whether there is a real controversy between the parties that will actually be determined by the judgment sought. Tex. Ass'n 0fBus., 852 SW2d at 446. “T0 establish standing, a person must show a personal stake in the controversy.” In re B.I. V., 923 SW2d 573, 574 (Tex. 1996) (per curiam). Standing must exist at the time a plaintiff files suit; if the plaintiff lacks standing at the time 0f filing, the case must be dismissed, even if the plaintiff later acquires an interest sufficient t0 support standing. Doran v. ClubCorp USA, Ina, N0. 05-06-01511-CV, 2008 WL 451879, at *2 (TeX. App.-Da11as Feb. 21, 2008, n0 pet.) (mem. 0p.); Kilpatrick v. Kilpatrick, 205 SW3d 690, 703 (Tex. App.-Fort Worth 2006, pet. denied). And the standing doctrine requires a controversy t0 continue t0 exist between the parties at every stage 0f the legal proceedings, including the appeal. City ofDallas v. Woodfield, 305 SW3d 412, 416 (TeX. App.-Dallas 2010, n0 pet). Standing a component 0f subject—matter jurisdiction. Tex. Ass ’n is ofBus. v. Tex. Air Control Bd., 852 S. W.2d 440, 445—46 (TeX. 1993); see also Daimler Chrysler Corp. v. Inman, 252 SW3d 299, 304 (Tex. 2008) (“A court has no jurisdiction over a Claim made by a plaintiff Without standing t0 assert it”). If a party lacks standing t0 bring an action, the trial court lacks subject-matter jurisdiction t0 hear the case. Tex. Ass ’n 0fBus., 852 SW2d at 444—45. “[S]tanding focuses on the question 0f who may bring an action.” Patterson v. Planned Parenthood, 971 SW2d 439, 442 (Tex. 1998). The general test for standing is Whether there is a real controversy between the parties that will actually be determined by the judgment Modification Hearing Brief - Page 4 0f 6 sought. Tex. Ass’n ofBus., 852 SW2d at 446. “T0 establish standing, a person must show a personal stake in the controversy.” In re B.I. V., 923 SW2d 573, 574 (Tex. 1996). Standing to sue may be predicated upon either statutory or common law authority. Nauslar v. Coors Brewing Ca, 170 SW3d 242, 252 (Tex. App.—Dallas 2005, no pet); see Williams v. Lara, 52 SW3d 171, 178—79 (Tex. 2001). The common law standing rules apply except when standing is statutorily conferred. SCI Tex. Funeral Servs., Inc. v. Hijar, 214 SW3d 148, 153 (Tex. App.—El Paso 2007, pet. denied). Neeley v. West Orange-Cove Consol. Indep. Sch. Dist, 176 SW3d 46, 774 (Tex.2005) ("Standing to assert a constitutional Violation depends on whether the claimant asserts a pafiicularized, concrete injury.") PRAYER For these reasons, and in the interest of justice and fairness, Defendants ask the court to set modify the judgment signed on August 14, 2020 to a take nothing judgment. A proposed judgment is attached hereto as Exhibit A. Respectfully submitted, EDDLEMAN & CLARK 4627 North Central Expressway Knox Central Place, Suite 2000 Dallas, Texas 75205-4022 Phone 214.528.2400 Fax 214.528.2434 RMC@RobertMC1ark.net WM. w ROBERT M. CLARK State Bar No. 04298200 Attorney for Defendants Modification Hearing Brief - Page 5 of 6 Certificate 0f Service I copy 0f the above was served on counsel for Plaintiff, Carl Tucker, 2028 E. certify that a true Ben White TX 78741, Fax 214.594.7862, ctuckerlaw Blvd., #240-1650, Austin, ai1.com in accordance With Rule 21a 0f the Texas Rules osz'vz'l Procedure on the lst day 0f October, 2020. WM. 4M Robert M. Clark Modification Hearing Brief - Page 6 of 6 N0. DC-19-06955 INVESTMENT RETRIEVERS * INC. In the District Court V. 298th Judicial District GABRIELA ESPINOZA a/k/a GABRIELA MARTINEZ and JORGE ********* L. ESPINOZA TORRES a/k/a JORGE ESPINOZA TORRES a/k/a JORGE E. TORRES a/k/a JORGE ESPINOZA a/k/a JORGE TORRES Dallas County, Texas AMENDED FINAL JUDGMENT The above-entitled cause came on for hearing before this Court 0n August 13, 2020 and a Final Judgment was signed on August 14, 2020. The Defendants flied a Motion to Modify Judgment to a Take Nothing Judgment for Lack of Standing 0n September 9, 2020. The Court, after hearing the evidence and arguments 0f counsel, is 0f the opinion that the Defendant’s Motion to Modify should be granted and Plaintiff should have a take nothing judgment by this suit due t0 Plaintiff s lack of standing. IT IS, THEREFORE, ORDERED and ADJUDGED by the Court that the Final Judgment 0f August 14, 2020 is rescinded; that Plaintiff take nothing by this suit, and that Defendant be in all things discharged. A11 costs 0f Court are taxed against the Plaintiff, for which let execution issue. A11 other relief not expressly granted in this judgment is denied. Signed on the day 0f , 2020. JUDGE PRESIDING Amended Final Judgment — Page 1 of 1 Exhibit A lM°553-TX-AR B-e 2/1 2 MOTOR VEHICLE RETAIL INSTALLMENT SALES CONTRACT W SIMPLE FINANCE CHARGE Dealer Number m_— Contract Number 1723779304 BUYER JABRIELA ESPNOZA SELLERICREDITOR ADDREss-VIADEL REY ADDRESSW cn'v JESQUITE STATE TX ZIP .15an CITY _£_rMes nits STATE TX ZIPJflm PHoNIEW CGBUYER ADDRESS- VIA DEL REY crrvmuna STATE TX ZIP 25159 PHONE — The Buyerls referradto as"y- a PROMISE TO PAY: The r. - A t pflce‘shown below as the "T I Sales Price." The 'Cash Price" is also shown in the Itemization of Amount . You agree us the to pay Amount Financed, Financ 9 arga. andan 1h: = . u saocording to the Payment -: ent even ifthe others do not. Schedule in this contract. = . c y yo . : . i this ?re J l V _ You have thoroughlyinspec = = f R HA ”CANON E I VEHICLE 'DEN PERSONAL. FAMILY. 0R HOUSEHOLD. YEAH MAKE MODEL VEHICLE IDENTIFICATION NUMBER m NEW memo uuLess OTHERWISE IN BELow D DEMONSTRATOH mmsrgmnnmmmmmscmm. boxasbsbwlscnecm.0hapta353 Ileimeronhe 2015 NISSAN TITAN 2WD maBADEDSFNsoow D FACTORY Cm: OFFICIAL/EXECUTIVE U BUSINESS 0H COMMERCIAL ‘ U USED D AGRICULTURAL Trade-in: Make NISSAN Mode, serum MhmMAmhnmw' 3N1AB7AP60L560633 2013.11.07 Year 201a VIN License No. FEDERAL TRerH-IN-Lfiumfimgunas SELLEn-s mscumsn or wmnmnas ANNUAL FINANCE z _ Unless the seller makes a written warrantxmr PERCENTAGE CHARGE ?%nters Into a service comraci withln 90 RATE Th9 “530' Tnadonar “mm“!w fiom the date ol this contract, the ”m makes no warrantlu, express or Implied, on vawggdreydgg mfiwg' the vehicle, and there wIII be no imp'ued y ‘ y° ' warrfinflel: of merchantablllty or oi fitness for lGu l' T ls provls on does pot aflect an warranties 4.34 e/o s 7,703.47 $ 52,929.53 s 60,633.00 s 60,633.00 g’avlf'j'fggmrwmfihgjfae‘h“ 9 "W” Your Payment Schedule Will Bo: Used c ar B era Guide. The information nu “#‘afiififl Sg‘figfit‘fi W“;,§§’$°"“ seeonthe ndowtonn tormsvemcleusgan . - of this contract. Information on the window 75 $ 303- 44 M°" mlV b99 "“‘"9 394/2015 i form overrldes any comrary provisions In lha 0r as follows contract of sale. Spanish Translation. Gula are compradors One finaipaymemof NM MA de vahlculos usados. La ln ormacibn qua ve Lat. Charge: If we do _ not receive your entire payment within E days after it is due (10 days if you are en 5| formuhrjo d3 h ventanifla para gate buying a heavy commercial vehicle), you win pay a Prepayment. If you pay an late mm you owe eariy, you win not have to pay a penalty. charge at fl 01 the scheduled payment. vehlculo forms rte del presente comma. La lnlormacién de formularlo do Ia vantanflh Socumy We will have a the vehicle being purchased. deli 5i“ 9'3““ tad“ distmn en mmmrlo IMerest. security interest in Additional Information: See this document for more information about nonpayment, default security ”mam“ a" “I 6° ”mm “mm interests. and any required repayment in full before the scheduled date. APPLICABLE LAW Federal and Texas law apply to this contract. NOTICE:ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHCH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OH SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEHEUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. This PROVIS|ON applies to this contract only if the vehicle financed in me coraract was purchased for personal, family, or household use. _ LAWSES-TX-ARB-e 2/12 v1 Pegs 1 616 Exhiblt B 8 ITEMIZA'HON OF AMOUNT FINANCED INSURANCE: THIS CONTRACT LIABILITY 1 Cash _SA+LE_STAX Price (mung any accessories. services. axes. s 1.47331. AmmsL. DOES NOT "CLUDE INSURANCE COVER- AGE Fon PERSONAL LIABILnY AND W NIA sflA .and NIA s NIA )s 38,404.81 (1) PROPERTY DAMAGE CAUSED TO OTHERS. 2 m l em- Hn ”avas.enter"arfimUno4Abem o ) mad“: s 12,000.00 LEGAL LIMITATIONS _ON OUR RIGHTS we don't enforce our n hts eyery trmg, we can If 0mm° B sfl _ Pa So.“ s 26,341.09 y y sfin enforce them later. e wIII exemse all of ' N“ 7"“ '" $'—'—'—— our rights in a hwful way. You don’t have lo pay +Gash finance charge or other amounts that are more +M1rs. Habata s 1,350.00 than the law allows._This provision prevails over other parts of this contract and over ow mmsfim) NM s N/A all chef aas‘ all Total Dmpayment S 0.00 (2) a Unpaid Balance oi cm Price (1 minus 2) s 38504.81 (a) 4 Other Charges includng Amounts Paid to Others an You Behall (Salter may keep par! o! these amounts): m fl A Not tada-ln payoff NMAC 3 8,510.00 B Casio? Oplonal Credit Insurance Paid to Insurance Company or Companies. Uta Disability // \l Immune Comfly ozner Optimal Insurance P4Id tb omen Fees eommlmancsas 71V V Paid to 1) mam fl VL/WJ ML MA for N/A 3) to NM MA $ NIA Debt Cancellalon Agreement Fee Paid Io tho Sella $ N/A 91am Invemog Tax (n Not included In sash Price) 3 80.48 _=D"||"| WW ct Indu 1n P $ NIA amarTaxea .1 Not Included In Cash Pdea s 12.00 Gownmem License andlor Heg'slralion Fees awe om $ 50.75 'lhililnthOapy. s 33.00 grflh Gmmmem Vehicle Inspeclion Fm n $ 23.75 //'\1 Deputy Same Fae Paid to Dealer Documentary Fol (cirgn A DOCUMENTARY FEE Downer“) NOT AN OF IAL FEE. A IS REQUIRED BY LAW, BUT MAY BE CHAR E TO BUYE S F R H CUM Ll FE DO S E / \I /-\$ /|v,W0 , , \ s x \ 5.00 \ W RELATING TO THE SALE. A DOCUMENTA EE M EX D RE ABL BY A AMOUNT AGREED T0 BY THE PARTIES. THI S RE UN CARGO DOCUMENTAL NO ES UN CARGO QFICIAL. LA LEY N XIGE 0 IMPONGA UN CARGO DOCUMENTAL. PERO ESTE PODR‘A C SE A S COMPRADOHESPOH EL MANEJO DE LA DOCUMENTACION EL RELACION GON LA VENTA. UN CARGO DOCUMENTAL N0 PUEDE EXCEDER UNA GANTIDAD RAZONABLE ACOHDADA POH LAS PAHTES. ESTA NOTIFICACION 5E EXIGE POH LEY. N Other Chargmswermustldawy wholspa‘dand WWW.) to State tor Plate Transfer Fee s 5.00 b MP? for CLUB 5 699.00 to MP? fat mmmmmmmvma s 2,990.00 to cAREMMNTENANcE for MAIMENANCE $ 769.00 to MIA for NM $ NIA w to NIA u MIA hr tor tor NM NIA NIA $ s $ NIA NIA NIA n NIA tor NIA 3 NIA m NIA MIA s NIA Tohlomar Charges and Amounis Paid m Others on Your adult s 14,524.72 (4) 5 Amuntnmneedgau) $ 52.92953 (s) LAW553-TX‘AHB-e 2/12 v1 P8092d6 Exhibit B 9 PROPERTY INSURANCE You mm! kn; Ihc collateral Insured ulna «mug: or bu In Ihe amount owl. You must Imp ml: Insurance unlll you luv: paid III um you nun under lhls contract. You mly om mlnmam fridgm anyone you or promo p mm of Insurance you alum] hm. Thu Insular must bu nuthurlnd to do