Roger Duane Rasbach, Jr. v. Jane Phillips, as Surviving Parent and Bank of America, N.A., as Trustee for the Winne Arnett Phillips Trust, the Herbert Houghton Phillips Trust, and/or Any Other Trust And/ or Substrusts Having Jane Phillips as Beneficiary and/or Other Fiancial Interest

• Court: Court of Appeals of Texas
• Decided: August 24, 2006
• Docket: 14-05-00576-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 24, 2006

Affirmed and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00576-CV

ROGER DUANE RASBACH, JR., Appellant

V.

JANE PHILLIPS, AS SURVIVING PARENT AND BANK OF AMERICA, N.A., AS TRUSTEE FOR THE WINNIE ARNETT PHILLIPS TRUST, THE HERBERT HOUGHTON PHILLIPS TRUST, AND/OR ANY OTHER TRUSTS AND/OR SUBTRUSTS HAVING JANE PHILLIPS AS BENEFICIARY AND/OR OTHER FINANCIAL INTEREST, Appellees

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No.2003-58570

M E M O R A N D U M   O P I N I O N

Appellant Roger Duane Rasbach, Jr., an adult disabled child, appeals the dismissal of his suit seeking child support from appellees Jane Phillips and Bank of America, N.A.  The trial court determined that Rasbach lacked standing to bring the suit, and further denied Rasbach=s request to certify questions to the Texas Supreme Court.  We affirm.

Background

From the record and the sparse factual background in the parties= briefs, we glean the following relevant facts and procedural history.  In 2003, Bill E. Davis, an attorney, filed suit against Jane Phillips and Bank of America as ATrustee for the Roger D. Rasbach, Sr. Irrevocable Trust, as Petitioner, on behalf of and as agreed by Roger Duane Rasbach, Jr.@  Jane Phillips is Rasbach=s only living parent and the beneficiary of trusts administered by Bank of America as trustee. 

According to the petition, Rasbach was then a 46-year-old adult disabled child who suffered from chronic mental disorders^[1] and could not adequately care for himself Aby reason of said mental infirmity.@  Rasbach=s parents divorced in 1964 or 1965, and since then Rasbach had lived with his father and twin brother until his father died in October 2003.  After his father died, Rasbach was Atemporarily dwelling on the couch@ at the apartment of his twin brother.  Davis, on Rasbach=s behalf, sought child support under Family Code Chapter 154, and specifically invoked section 154.001(a)(4), which provides that a court may order a parent to support a disabled child for an indefinite period.  Davis requested, among other things, monthly support retroactive to the date of Rasbach=s parents= divorce and temporary support in the amount of $4,000 per month during the pendency of the suit.

Phillips and the Bank answered and asserted, among other things, that Bill E. Davis lacked standing and capacity to bring the suit on Rasbach=s behalf.  Rasbach then filed a plea in intervention seeking the same relief Davis had sought on his behalf in the original petition.  The next day, Davis dismissed his petition, leaving the Aintervenor@ Rasbach as the only plaintiff.  In response to Rasbach=s plea in intervention, Phillips and the Bank asserted that Rasbach lacked standing to sue for support because the Family Code provides that an adult disabled child may only bring suit if he meets certain requirements, including that he Adoes not have a mental disability.@  See Tex. Fam. Code ' 154.303(a)(2)(b).^[2]  In his responses, Rasbach noted that Amental disability@ is not defined in the Family Code and argued that a distinction existed between the Alegal@ definition and the medical definition.  Rasbach also alleged he had capacity to maintain the suit, and attached to his responses an AAffidavit of Capacity Assessment@ attested to by Floyd L. Jennings, J.D., Ph.D.  In the affidavit, Jennings opined that Rasbach had sufficient capacity to appoint Bill E. Davis as his attorney-in-fact.

In Rasbach=s last pleading, the AThird Amended Petition to Intervenor=s Original Plea in Intervention,@ he alleged in the alternative that, in the event the trial court determined that he lacked standing to pursue his claims on his own behalf, Rasbach would Ainvoke[] his rights to equal protection of the laws and due process as afforded [him] under the Constitutions of both the State of Texas and the United States of America.@  Rasbach also challenged as unconstitutional Family Code section 154.303=s provision that an adult disabled child with a mental disability does not have standing to sue for support.  In connection with these allegations, Rasbach added to his suit Greg Abbott, Attorney General of the State of Texas. 

Following some procedural complications not relevant here, on December 15, 2004, the trial court signed an order dismissing Rasbach=s suit and denying his request for an abatement of the proceedings.  The trial court determined Rasbach did not have standing to bring the suit, and denied Rasbach=s request to have the following questions certified and sent to the Texas Supreme Court:  (1) AWhether [Rasbach], by being denied standing, is a member of a class that is denied equal protection of the laws and denial of due process as afforded to [Rasbach] under the Constitutions of both the State of Texas and the United States of America?@; and (2) AWhat is the legal definition, as distinguished from the medical or other non-legal definition, of the term >mental disability= as stated and used in Tx. Fam. Code Sec. 154.303(1)(B)?@ 

Rasbach filed a motion to reconsider or, in the alternative, motion for new trial, asserting that the Attorney General had been served with citation Aas an indispensable and necessary party,@ and requesting a new trial so that the Attorney General could Aattend and be heard@ on the issues raised in the suit.  Following a hearing, the trial court denied the motion.  This appeal followed.

Analysis

Rasbach presents two issues on appeal:  (1) Apositive responses@ to the certified questions he proposed in the trial court will allow him to continue his appeal; and (2) he Ahas been otherwise unable to continue with any legal proceedings under his existing circumstances and in his present situation.@  Before we address these issues, however, appellant raises a jurisdictional issue that we must address first.

Is the Judgment Interlocutory?

Apart from his appellate issues, Rasbach contends the trial court=s judgment dismissing his suit is interlocutory because the State of Texas is an indispensable party to the constitutional issues raised in his suit and the Attorney General was served but has not answered.  Rasbach does not provide any analysis or authority to explain why he believes the State of Texas is an indispensable or necessary party to the suit.  Moreover, Rasbach misunderstands the nature of the trial court=s order.  The trial court=s order dismissed Rasbach=s suit because Rasbach lacked standing to sue.  Standing, as a necessary component of a court=s subject‑matter jurisdiction, is a constitutional prerequisite to maintaining a suit.  See Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  If a party lacks standing, a court lacks subject‑matter jurisdiction to hear the case.  See id.  Without subject-matter jurisdiction, there is no case to which an allegedly indispensable or necessary party may be joined and no necessity to wait until all potential parties are served.  As we discuss below, the trial court did not err in dismissing Rasbach=s suit for lack of standing.  Therefore, on this record, we hold that the trial court=s judgment is not interlocutory.

The Requested Certified Questions and Standing

We turn now to the substance of Rasbach=s appeal.  Although it is not entirely clear from Rasbach=s briefing, he appears to request that this court forward to the Texas Supreme Court his proposed certified questions, which are the following:  (1) AWhether [Rasbach], by being denied standing, is a member of a class that is denied equal protection of the laws and denial of due process as afforded to [Rasbach] under the Constitutions of both the State of Texas and the United States of America?@; and (2) AWhat is the legal definition, as distinguished from the medical or other non-legal definition, of the term >mental disability= as stated and used in Tx. Fam. Code Sec. 154.303(1)(B)?@  Rasbach contends that these questions should be certified Afor constitutional reasons@ and the answers to them will enable him to have standing below.  Specifically, Rasbach asserts that he has been denied equal protection of the laws and due process under the United States Constitution and the Texas Constitution.  See U.S. Const. amend. XIV; Tex. Const. art. I, ' 3, ' 19.  Rasbach also contends he presented proof that he is free of any mental disability in a Alegal@ sense and has capacity to maintain his suit.  We disagree.

First, although Rasbach asserts that we should send his proposed certified questions to the Texas Supreme Court, he provides no statutory or other authority that would enable us to do so upon such a request.  Moreover, Rasbach merely asserts in a conclusory fashion that the Aconstitutional reasons@ underlying his request are that he has been denied equal protection and due process.  Rasbach offers no substantive argument, analysis, or citation to relevant authoritiesCother than the constitutional provisions citedCto explain why this is so.  Appellate briefs must Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h).  Failure to either cite authority or advance substantive analysis waives the issue on appeal.  Sunnyside Feedyard, L.C. v. Metro. Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.CAmarillo 2003, no pet.); Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 671 (Tex. App.CHouston [14th Dist.] 1994, writ denied).  Therefore, we overrule Rasbach=s request that we forward his proposed certified questions to the Texas Supreme Court.

Second, Rasbach=s contention that he has standing because he has demonstrated he has capacity and is free of mental disability is unsupported in the record.  More significantly, however, Rasbach=s own pleadings include an affirmative statement that he does in fact suffer from chronic mental disorders, which are (at least in part) the basis for the relief he seeks.^[3]

Standing to file suit for child support for an adult disabled child may be filed by a parent of the child or another person having physical custody or guardianship of the child under a court order.  See Tex. Fam. Code ' 154.303(a)(1).  An adult disabled child also may file suit for support, but the child must (1) be 18 years of age or older, (2) not have a mental disability, and (3) be capable of managing his financial affairs as determined by the court.  See id. ' 154.303(a)(2)(A)B(C).  AMental disability@ is not defined in the Family Code. 

Appellees argued below that Rasbach has a mental disability, and therefore did not satisfy the statutory requirements for standing to maintain his own suit.  On appeal, Rasbach points to an AAffidavit of Capacity Assessment@ by Floyd L. Jennings, J.D., Ph.D., which he contends demonstrates that he is Afree from any such legal >mental disability.=@  However, in the affidavit, Jennings merely concludes, after observing Rasbach for approximately one hour in December of 2003, that Rasbach had sufficient capacity to appoint Bill E. Davis as his attorney-in-fact.  Nowhere in the affidavit does Jennings opine that Rasbach does not suffer from mental illness or mental disability.  Additionally, Rasbach pleaded in his last live petition that he suffers from chronic mental disorders, including degrees of obsessive compulsive disorders and schizophrenia, and that these disorders (along with unspecified health disorders) are the basis of his claim for support.  Even in his appellate brief, Rasbach admits he suffers from these chronic mental disorders.^[4]  Thus, construing the pleadings in Rasbach=s favor and reviewing the relevant evidence, we agree with the trial court=s determination that Rasbach lacked standing to maintain his suit.

We overrule Rasbach=s first issue.

A Legal Limbo?

In Rasbach=s second issue, he contends he Ahas been otherwise unable to continue with any legal proceedings under his existing circumstances and in his present situation.@  We understand Rasbach to be arguing that the lack of an appropriate definition of Amental disability@ in the Family Code has stymied his attempt to pursue his claims himself and has left him in a kind of legal limbo.  Rasbach appears to contend that a Alegal@ definition of Amental disability,@ as distinguished from Athe medical or other non-legal definition,@ is needed to enable a court to determine whether he is able to maintain his own lawsuit.^[5] Rasbach also asserts, in a conclusory fashion, that denying him standing denies his access to the judicial system and is a violation of his state and federal rights to due process and equal protection of the laws.

Rasbach=s argument is devoid of any substantive argument or analysis, and, other than the constitutional provisions cited, fails to cite any authority in support.  Therefore, as in his first issue, Rasbach has failed to present anything for review.  See Tex. R. App. P. 38.1(h); Sunnyside Feedyard, 106 S.W.3d at 173; Tacon Mech. Contractors, 889 S.W.2d at 671.

Even assuming Rasbach=s argument was preserved, we disagree that he is denied judicial access to obtain the child support he seeks.  Rasbach=s stated claim for support rests, at least in part, on his alleged mental disability that renders him Aunable to adequately care for himself by earning a living by reason of said infirmity.@  Under the Family Code, an adult disabled child with a mental disability may not maintain a suit for support himself.  See Tex. Fam. Code ' 154.303(a)(2)(B).  However, the Family Code also provides that an adult disabled child with a mental disability has standing to sue through a parent or another person having physical custody or guardianship under a court order.  See id. ' 154.303(a)(1).  Thus, if the trial court finds that a petitioner is a mentally disabled individual, judicial access is granted through his legal representative, thereby safeguarding his rights to due process and equal protection under the law. 

In this case, admittedly it is unlikely that Rasbach=s mother, Jane Phillips, would pursue the suit on Rasbach=s behalf, as it is Rasbach=s position that Phillips, by her actions before and after his birth, is the primary cause of his physical and financial condition.  However, Rasbach makes no claim that a guardian or other recognized legal representative cannot maintain a suit on his behalf.  Thus, Rasbach has an alternate avenue to pursue his claims, and his constitutional rights may be vindicated through his legal representative.

We overrule Rasbach=s second issue and affirm the trial court=s judgment.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 24, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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^[1]  The original petition identified Rasbach=s chronic mental disorders as Aincluding degrees of obsessive compulsive disorders, autism, and schizophrenia.@  Rasbach=s later pleadings as Aintervenor@ deleted the reference to autism and added unspecified Ahealth disorders.@

^[2]  Although the statutory language at issue is contained in Family Code section 154.303(a)(2)(B), the parties and the court incorrectly cite the subsection as A154.303(1)(B)@ throughout the proceedings.

^[3]  Because standing is a component of subject matter jurisdiction, the standard of review for an order of dismissal for lack of standing is the same as that for an order of dismissal for lack of subject matter jurisdiction.  Tex. Ass=n of Bus., 852 S.W.2d at 446.  Subject matter jurisdiction raises a question of law, which we review de novo.  See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  We look to the pleadings and any evidence relevant to the jurisdictional issue.  See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).  We construe the plaintiff=s pleadings in the plaintiff=s favor and look to the plaintiff's intent.  See Tex. Ass=n of Bus., 852 S.W.2d at 446.

^[4]  Although in his reply brief Rasbach asserts that he lives by himself in an apartment with some assistance, he does not point to any record evidence to support his statements. 

^[5]  In his appellate briefing, Rasbach does not offer a proposed definition, but merely asserts this is why the second of his proposed certified questions must be answered.