Ave, Inc. v. Tom Hornseth, Comal County Engineer

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 10, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 05-51090
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AVE, INC.,
Plaintiff–Appellant,
v.
TOM HORNSETH, COMAL COUNTY ENGINEER; DANNY SCHEEL, COUNTY JUDGE
OF THE COMAL COUNTY COMMISSIONERS’ COURT; DIB WALDRIP, COMAL
COUNTY DISTRICT ATTORNEY,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Texas
No. 5:02-CV-847
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant AVE, Inc. (“AVE”) appeals the district
court’s order granting the defendants-appellees’ motion to
dismiss for lack of standing in AVE’s suit alleging that Comal
County’s sexually oriented business regulations violate the
United States Constitution. AVE argues that the district court
erred by resolving factual ambiguities in favor of the

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defendants-appellees, the moving parties, contrary to the proper
summary judgment standard. AVE also contends, in the
alternative, that even if the district court properly determined
the disputed facts, those facts do not establish that AVE lacks
standing to sue.
We review the district court’s standing determination de
novo. Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir.
2000). A district court may hold a preliminary hearing to
resolve factual disputes in order to determine standing,
especially when the jurisdictional challenge does not implicate
the merits. Barrett Computer Servs., Inc. v. PDA, Inc., 884 F.2d
214, 220 (5th Cir. 1989). Standing is a jurisdictional matter;
therefore, the district court has greater latitude in resolving
factual disputes than in a motion for summary judgment and it may
decide factual ambiguities in favor of the moving party. Id. at
220. “If the district court resolves any factual disputes in
making its jurisdictional findings, the facts expressly or
impliedly found by the district court are accepted on appeal
unless the findings are clearly erroneous.” Pederson, 213 F.3d
at 869.
After carefully reviewing all submissions by the parties and
the record in this case, we conclude that the district court’s
factual findings were not clearly erroneous. In light of the
facts determined by the district court, AVE failed to prove that

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it had standing. We therefore AFFIRM the order of the district
court.
AFFIRMED.

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